2nd Amendment
5/29/2022, on Fox News, Mo Brooks explains to the nation that the Second Amendment was intended to protect the citizenry from a tyrannical government. Course it wasn’t, but then Mo, being Mo, believes that it was. Mo, no doubt believes in ‘The Lost Cause’, too; and, until it became too obnoxious to say out loud, that the South would rise again. Mo, was one of the founders of the Freedom Caucus.
Mo explained to the Fox host that, “The Second Amendment is designed to help ensure that we, the citizenry, always have the right to take back our government should it become dictatorial.” Thanks, Mo. This certainly affords us more insight into the January 6, 2022, Insurrection, and the record sales of AR-15s. As justification for overturning a free and fair election, they would take back their government and install a dictator. That votes don’t count, only guns do. That might makes right. How can twenty million assault rifle owners be wrong? Who are you going to shoot, Mo? The voters? The Libs?
The Second actually says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In Mo’s defense, the ‘Lost Cause’ was made up, too.
It would be very interesting to hear more from Mo’s world, but we should be thinking about the overall problem of the Second Amendment. What with the States each having their own State Police and National Guard unit (which they didn’t back in the 18th Century), and the U.S. Government having a huge Department of Defense; there is no need (if there ever was) for any state to have yet another well-armed militia. The Second doesn’t say anything about the individual’s right to bear arms; and if the Constitution it doesn’t say anything about a right, it doesn’t exist; so sayeth the majority.
If the Second was ever justified, it was a long time ago. What is needed is an obsolescence Article that declares any or all parts of the Constitution that are no longer applicable inapplicable. Such an Article would clean out all that was applicable then but not now such as the problem with the Senate, the Electoral, and the Tenth. No need to amend, just strike them through. If the gun nuts want the right to bear arms, let them try passing an Amendment giving them that right.
When and if an amendment passeth all understanding, maybe it should be voided lest it be misinterpreted. Chances that if there is disagreement as to its meaning the writers themselves couldn’t quite nail it down. Loads of trouble could come from trying to implement something that isn’t easily understood. A politically-minded Supreme Court Justice might see something like the Second Amendment as a ball of clay that could be molded into about anything.
Postscript: How did this blow by the Media?
Postscript II: Mo also said, “The courts are not the final arbiter of who wins federal election contests.” Mo must have forgotten Bush v. Gore.
The plain language of the 2nd amendment explicitly links the right to “bear arms” to membership in a well regulated militia. If you’re not in a well-regulated militia, you have no Constitutional right to bear arms. Also, hunters don’t “bear arms,” that’s a military thing. If they founders wanted to protect hunting with guns, they could have said so.
The right to bear arms doesn’t imply the right to own bullets. You can bear a sword, a spear, a mace or a halberd as part of a well regulated militia. “Arms” no more implies firearms than it implies bazookas, mortars or thermonuclear warheads.
And of course, to the extent that “bear arms” evoked firearms in the minds of the founders, they were thinking of muskets. There’s your “original intent.”
It bears repeating that under US Code, Title 10, all US male citizens are de jure members of an ‘unorganized militia’ which could readily be converted to a ‘well-regulated’ miltia after a few training sessions on the village greens of yore.
The idea of ‘bearing arms’ which was not unusual in the 18th century was that it would facilitate the establishment of well-regulated militias should the need arise, knowing how to load and shoot a flintlock being essential. This even extended to much more recent times, if one recalls stories of Justice-to-be Tony Scalia carrying his M-1 rifle on NY subways as a young patriot.
Anyway, I look forward to the next Constitutional Convention where we revise the founding document to remove all the antiquated dross that no longer makes sense, leaving only the good stuff, the stuff about ‘promoting the general welfare’.
@Fred,
Be careful what you wish for. A Constitutional Convention could replace the “antiquated dross” with language that guarantees every citizen to own any weapon, up to and including thermonuclear warheads. It could also add language that forbids abortion from the moment of “conception.” It could forbid gay marriage. It could forbid more than one political party.
The 2nd Amendment, as debated among the states, was more about balancing out state and national power than it was about personal weapons. Because of the experience with British troops abusing colonial citizens, the notion of a standing army was not popular.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Here are some variations:
Aside from Vermont, there is a notable emphasis on a popular militia defending the state, rather than the right of personal self-defense.
David:
You were in the trash due to the length of your comment or a change of location and the system did not recognize you. You stateside now?
Yes, after nearly 40 years overseas, I repatriated.
David:
That has to be a great adjustment. My trips were weeks at a time moving from city to city and country to country in Asia. We would stop in Hong Kong to relax for weekend.
run75441,
I was in HK 1984-2015.
David:
I can only imagine your experiences. A great discussion over a dinner.
My time traveling through the countries of Asia was limited to a week here and there at the plants once and sometimes twice a year. We usually made a stop in Hong Kong to catch a breather till we took off for the Philippines, Thailand, etc. Reciprocated the hospitality shown to us when they visited the US. They taught me well.
The entire Bill of Rights is about granting rights to citizens, and also to state governments. The Constitution as originally drafter had practically nothing specific to say about such rights, and its ratification was in jeopardy.
‘The American Revolution happened to secure the rights of citizens. Where are those rights guaranteed in this Constitution. What were you guys thinking?’
As noted, the 2nd Amendment is present because certain Virginians wanted it to be, and because it existed in the English Bill of Rights of 100 years prior.
David,
Excellent. Much thanks.
David
thanks for the education. I think it is reasonable to point out that those versions were NOT adopted for the Constitution. Moreover, I don’t think the “Framers intent” is an adequate basis for interpreting (enforcing) the Constitution. It becomes too difficult to Amend the Constitution to keep up with changes in the understanding of human rights or the necessities (and dangers) of government. Unfortunately that seems to lead us to the problem we have today, which I read as a Supreme Court with a political agenda that threatens Constitutional government itself. I am not sure how much this differs in effect from the Dred Scott Court or the Anti New Deal Court and the other Courts we have had that used and abused the Constitution to find reason to perpetuate injustice because it was “traditional.” But we have gotten past some of that, and we may survive this.
I think, just barely, that we could find ways around the Abortion and Assault weapon hysteria without changing the Constitution. But the current Court seems to have a much broader mission to destroy meaningful democracy, which worries me.
(It may seem bogus, but there is a long-standing belief among so-called conservatives that the main purpose of the 2nd Amendment is to prevent tyranny by the guv’mint in the USA. Dates back to Thomas Jefferson. In the early days of the republic, when there were no standing armies, a case could be made for maintaining state-controlled militias if only for the purpose of restraining the federal guv’mint, although without a federal military force, how much of a threat were they? Anyway, Thomas Jefferson and other southern founding fathers were supposedly ‘anxious’ about what the federal gu’mint might be capable of doing, going forward.)
Constitutional Myth #6: The Second Amendment Allows Citizens to Threaten Government
The Atlantic – June 30, 2011
For me, it is fascinating how US political parties evolve drastically over time.
The Dems (originally the Democratic-Republican party) was founded by slave-holding Virginians (Thomas Jefferson, Madison, Monroe, et al) who were anti-Federalists, the other party at the time. It was the Federalists who pushed for the creation of the Constitution. The original Dems were in effect the ‘States-Rights’ party. The Federalists were the ‘Strong-Guv’mint’ party.
In effect, over the centuries, these two factions totally reversed position.
The Federalists of course disappeared as a party, but their beliefs live on. The Dem-Rep party for all intents & purposes decayed into the two major parties of today.
Thomas Jefferson, Dem party founder, is now a GOP hero. Abe Lincoln, the Great Emancipator, the first GOP president, is now a pariah in the GOP. The Roosevelts, Teddy & Franklin seem to have been in the thick of these shifts.
Constitutional Myth #6: The Second Amendment Allows Citizens to Threaten Government
The Atlantic – June 20, 2011
When government fears the people, there is liberty… (Spurious Quotation)
‘An article courtesy of the Thomas Jefferson Encyclopedia’
The drafters of the Bill of Rights were great men, of that there can be no doubt. HOWEVER, the origin and meaning of the Second Amendment is best understood from the text adopted in the many STATE constitutions. THAT was the basis upon which the version we know best (and misinterpret the most) was negotiated.
It’s all about the militia, not home defense and not tyrannical government.
David,
well see my reply to you above. You are making the mistake of thinking your preferences are somehow enshrined in divine logic. I do it too. We all do it. that’s why we need to learn how to negotiate which is not always “compromise.”‘s a matter of learning what rights we can grant each other and live with. it isn’t helped by slash and burn politics.
Compromise.
I remember that.
But, since it takes two to tango, and the GOP is no longer a reliable negotiating partner, we’ll need other options.
David,
If the “drafters of the Bill of Rights were great men,” then it might also be noted that (according to Lord Acton whom I am more prone to believe) then “Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority” (from his rather famous power corrupts letter to Archbishop Creighton).
Those great men were most conspicuously James Madison as inspired by Thomas Jefferson, albeit mostly just plagiarizing George Mason’s Virginia Declaration of Rights. More important was the context out of necessity to secure ratification of the US Constitution without inciting another revolutionary war.
The Colt revolver began production in 1835. The US Constitution was ratified in 1788 with the BoR quickly adopted in 1791. Other than the leading edge naval cannon, then not much was around to worry about in the bearing arms department. People living outside of towns particularly on the frontier needed rifles to protect themselves from bear, natives, and white marauders, while hand guns were good enough for white men that cheated at poker and other snakes. Militias could be organized as quickly as needed conscripting first from young single men, then young men without children, and so on leaving grandpa until last. There was plenty game everywhere, but few meat packing plants and no freezers in the summer.
Also, there is a substantial difference between negotiating (the means) and compromising (then ends) although they can also be almost the same thing.
It was previously noted that the US Bill of Rights was based on the English Bill of Rights (1689), which included the right of English subjects to ‘bear arms for their own defence’. We have the Right to Bear Arms ostensibly because the Brits had the same right, about 100 years earlier.
(The English version includes a clause allowing legal limitation of the right, however. In our case, such limitations have been applied regardless.)
The US Bill or Rights was added to the Constitution after various states complained that the proposed Constitution had practically nothing to say about the rights of US citizens, and until that was corrected state ratification was unlikely.
Dobbs
brilliant, i think. epends where you go with it.
my history is a little shaky but i think both whiskey and Shays were met with Federal force, maybe state nmilitias were activated against he rebellions, but … well, i don’t know. i think A.Hamilton wanted to lead troops and Geo Wash was happy to let him.
all that Bill of Rights stuff got seriously confused almost before the ink was dry. even hard for me to tell what the Framers intended. Maybe just to have talking points as a place to start.
Well
some dubious statements here for sure. let me add a few of my own, which, i am sorry to say, will not clear things up.
Shays Rebellion and the Whiskey Rebellion were treated as rebellions not as “the people” exercising their right to bear arms in a militia. So, also, was the little thing in 1861. One might almost think of it as “settled law,” there being no common law examples of a “sovereign” (us?) treating armed resistance to a government as anything other than treason.
that said, i don’t think you want, or should want, to discourage people from thinking they do have a right to ‘regulate a militia” in the event a government gets tyrannical …think of poor King George; they did. even if they discovered later that they didn’t really mean it. “who, Us? tyrannical?”
the day may come when the Trumpists ARE the government, and you want to have a “right” to “regulate a militia” to defend yourselves from it (them, the government.) You might even think kindly of discovered rights in the context of a right to abortion, which would suggest to my untrained legal mind that a “right assumed by the people” for a long enough time becomes one of those rights reserved to the people…
but we are dancing on a thin line here between “the law” and “the rights of the people” (beyond the Constitution.) We could always amend the constitution, but I think that might be difficult, especially since the people benefiting from the way things are are the people who would have to vote for the amendment. catch 22 in the Constitution. they were dreamers, those guys. In any case, those twenty million (is it?) gun owners are going to very hard to convince whatever you do.
meanwhile i think a nice militia or fifty of them, well regulated, but run by the people, could be made to satisfy the fears of both the gun owners and the part of the population that is afraid of being killed by some insane guy with an assault weapon.
the insane guy, and the assault weapon, will still be out there, but they will still be out there even if you can ban them. which you can’t. the “militia” proposal would at least start to reduce the insanity of the rest of us.
by making the guns “borne by people in a well regulated militia” legal, you make it easier to make unregulated guns borne by insane people easier to take away from them without provoking the “the government is plotting to take away our guns” folk.
Fun facts:
The ‘Legion of the United States’ was a reorganization and extension of the Continental Army from 1792 to 1796 under the command of Major General Anthony Wayne. It represented a political shift in the new United States, which had recently adopted the United States Constitution. The new Congressional and Executive branches authorized a standing army composed of professional soldiers, rather than relying on state militias.
The Legion was primarily formed in reaction to multiple defeats in the Ohio country in 1790 and 1791, and to assert U.S. sovereignty over U.S. borders in the western territories and Great Lakes regions. …
The Department of War accounted for approximately 40% of the United States’ budget, so early in 1796, with less threat of Native American or British conflict, Congress reduced the Legion to just 3,359 and branded it as the United States Army. … (Wikipedia)
(There is no mention here of the ‘Legion of the US’ being involved in action against rebellions – Shay’s in 1786-87 or Whiskey in 1794 – and the US Army was not re-established until 1796. Presumably, it was state militias which were involved in the cited rebellions.)
There will perhaps be some comments about Major General ‘Mad Anthony’ Wayne, a notorious ‘Indian Fighter’ of the late 18th century who has the distinct honor of having many US counties named for him in tribute.
Wayne County, Georgia
Wayne County, Illinois
Wayne County, Indiana
Wayne County, Iowa
Wayne County, Kentucky
Wayne County, Michigan
Wayne County, Mississippi
Wayne County, Missouri
Wayne County, Nebraska
Wayne County, New York
Wayne County, North Carolina
Wayne County, Ohio
Wayne County, Pennsylvania
Wayne County, Tennessee
Wayne County, Utah
Wayne County, West Virginia
Coberly,
You pose a very reasonable solution, but not much happens on policy that does affect kitchen table issues and even less happens on policy that does not affect kitchen table issues. That said, then many men love their guns and many women love access to ex post facto birth control. Since the vast majority of political elections are won and lost at the margins, then a motivated political action by voters can bring their issue to the fore.
Inflation is all kitchen table and folk dining at the table do not understand it well past the first order effects. In general, guns and abortions do not belong on the kitchen table and clash with the decor. Furthermore, motivated political action works better when focused on preserving the status quo than it does with subtle solutions that require a lot of explaining.
Behind every status quo artifact stands a long history of hysteresis that makes it extremely difficult to budge. Of course all republican politics boils down to a numbers game; the pros and the cons and the just do not cares. I really do not know the numbers, but I do know KISS will work when all else fails even if the numbers reject the null hypothesis.
https://www.interaction-design.org/literature/article/kiss-keep-it-simple-stupid-a-design-principle
https://people.apache.org/~fhanik/kiss.html
https://www.techopedia.com/definition/20262/keep-it-simple-stupid-principle-kiss-principle
https://www.freecodecamp.org/news/keep-it-simple-stupid-how-to-use-the-kiss-principle-in-design/
https://www.wise-geek.com/what-is-the-kiss-principle.htm
https://marketbusinessnews.com/financial-glossary/kiss-principle/
https://www.forbes.com/sites/mikekappel/2021/09/15/keep-it-simple-stupid-applying-the-kiss-principle-to-reports-marketing–beyond/?sh=229de4eb7913
[Probably the most important engineering design principle that works across a vast number of disciplines from architecture and software development all the way to marketing and politics.]
Those two ‘rebellions’ seemed to have inspired the passage of the Sedition Act(s) back in those days. They are of hardly any import (or interest) these days. But they have to be compared with the Jan 6 insurrection, and justifiably.
If you need a reminder about what ‘sedition’ or ‘insurrection’ mean. you need to look no further than January 6, 2021 and the final few months of the Trump presidency.
Coberly,
BTW, institutions provide stability and continuity for social interaction and function, but they require much investment in time and money to create. The Swiss militia evolved from the necessity to have all hands on deck for their sparsely populated mountain region to defend itself from the invading armies of the powerful empires surrounding them. The Swiss people speak French, German, and Italian having no language of their own, but have their own unique identity nonetheless.
Ron
I was afraid you’d say that. You are right, of course. I think I could live with KISS on both issues, but the hysterions on all four sides may not let us.
I thought my Swiss Militia was at least worth talking about, but there are probably simpler ways..first convince the gun owners that the government cannot realistically take away their guns, and convince the people who hate mass killings that laws requiring military capable weapons be registered and not carried in public or sold without serious backgound checks would provide as much safety as we are going to get, and something like that might restore peace…but i don’t think the politicians will let us.
as for abortions, establish privacy between a patient and a doctor and some “private” system to help the needy, and then shut up about it, might quiet the people who believe in the rights of unborn babies not to be murdered. might have to point out to them that Jesus was all about “What is that to you? Follow thou ne” and not attempting to enforce your morality in the courts. Hard sells, all of them.
Yes sir, Mr. Coberly. For better or worse that is the ticket.
Also sir, if we can maintain some realism, then just maybe we can stop scaring the children long enough that something can be moved through the political machinery. Like you though, I am fearful that hysteria will overcome common sense on all sides because hysteria is so often provoked from all sides. Pogo Possum, eat your heart out.
(Indeed. If the Dems can accomplish this in the next few months, I intend to support them big time this year, next year, and with as much as Mrs Fred & I can afford in 2024. Otherwise, not so much. Get it done!)
‘Enough, Enough’: Biden Calls On Lawmakers to Pass Gun Legislation
NY Times – June 2
To make this happen, it’s likely Dems in the Senate will need to go all in and end the Filibuster, to take away the 60-vote majority requirement for passage of most legislation.
They may feel queasy about this, afraid what will happen after this November if they lose their quasi-majority in the Senate. Looks to me like it’s time to go all in on this. Otherwise, the GOP will triumph on this issue, and that cannot be allowed to happen.
Fred
after your above putting the 2nd in the context of (basically) what the people thought they were getting, as opposed to what Scalia thought the Framers intended,
gave me hope that you would understand the people who are afraid of the government taking away their guns, this is not the R’s who have a whole nother agenda, and only use the right to bear arms as a way to get the hearts and minds of about 40 million Americans.
The Biden proposal forgets about this, and your “hope” that the Dems can strong arm this through Congress. first won’t work. second even if it passes, the law will be flouted until the R’s win the next election and get the chance to do what they want with us.
Sure, it’s a wedge issue for the GOP & those who support it.
But it’s not just a wedge issue. Guns lead to considerable social damage, and that is a serious American problem,
Those of you believe it’s just a wedge issue need to re-think.
I agree that such measures as banning assault rifles, which implies confiscation, if not mandatory buy-backs, will really antagonize a lot of gun aficionados, and will probably not happen, alas. But more modest measures, red-flag laws and background-checks could work.
Let’s be clear about the NRA, GOP, and gun owners.
The NRA was highly pro-gun control right up until the 1970s, when gun manufacturers’ hand-picked NRA leaders used the civil rights movement as a policy weapon.
The GOP was reasonably pro-gun control, until the NRA began filling campaign war chests.
Both have suckers hunters into believing that any little bit of regulation is no different from the black-booted government thugs kicking down your door in the middle of the night and seizing not only your guns, but your Bible as well.
Any hunter will tell you that anyone who needs a high-capacity magazine isn’t hunting; he’s killing people.
*Both have suckered hunters*
David
Plus, many states limit the number of rounds you can have in the magazine. That is to say hunting is not a military affair.
It seems the NRA is actually just a lobbying group for the gun industry, riding on the coattails of a large – if not enormous – number of gun aficionados, all well-armed & familiar with shooting at stuff.
Who are at least impying that they could march, armed, on the capital if their wishes are not acceded to.
Some of them would have to take leave of their congressional posts to do so.