Cutting the Crap on the Second Amendment

Has there ever been a time in history in which the complete and utter misinterpretation of one single sentence has led to such a swath of death and destruction?

Here’s the sentence; see if you recognize it:

“A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Yep, it’s the Second Amendment, which far too many people believe gives individuals the right to keep and bear arms. I’d like to say it’s only right wingers who think that, but, given the number of progressives who have been calling for a repeal of the Second Amendment (a windmill tilt if there ever was one), apparently many of them buy it, too. Yet, throughout our history, the idea that the Second Amendment gives individuals the right to bear arms is something recent and something that is basically made up by the gun manufacturers lobby to sell more guns.

You know them better as the NRA.

Yes, it’s true gun fans; the National Rifle Association was founded as an organization to train people to shoot in the Civil War, but late in the previous century, they morphed into an organization with a single mission; to create as much fear as possible in the American people, to make them buy lots more guns and ammo than anyone could possibly need. Hence, the reinterpretation (misinterpretation)  of the Second Amendment of the Bill of Rights.

In the first 200 years of this country’s existence, the Second Amendment was no big deal; in fact, it was hardly mentioned by anyone. No language in that single sentence that creates an individual right to bear arms. In fact,  nothing about the creation of the Second Amendment indicates they had even the slightest notion of creating an individual right. The circumstances surrounding the creation of the Bill of Rights, in fact, indicate the opposite.

Let’s clear up another thing that has been muddied in recent years by right-wing gunloons. The Federalists wanted a strong central government, with less of a state focus. It was the anti-Federalists who opposed the Constitution and wanted the states to be superior in the system.

When the Constitution was finally ratified, after many changes to appease the anti-Federalists, James Madison fashioned a Bill of Rights, which consisted of 17 constitutional amendments covering many different rights including speech, press and religion, as well as the right to a fair trial and the right against self-incrimination. Among these was the single-sentence amendment above, discussing a “well-regulated militia” and a right “to keep and bear arms.” Under British common law, people had the right to own a gun, anyway – they had to hunt for food; it’s not like they had supermarkets – so the ownership of guns was not controversial at the time; there was no reason to specifically protect them. At the time of the passage of the Second Amendment, the phrase “keep and bear arms” usually referred to collective military action against a common enemy.

The Tennessee Supreme Court agreed with this interpretation in 1840, when it ruled in Aymette v. State:

“A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes or a spear in a cane.”

Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840)

In other words, when the Second Amendment refers to the “right to keep and bear arms,” it is obviously not discussing the keeping of a weapon in the house for hunting or shooting targets.

There is a right to own a gun, but it stems from the same common law that gives you the right to buy a toaster or a television. The Second Amendment does not confer any special rights on anyone. Madison wrote all 17 amendments proposed for the Bill of Rights, and historians note that there is nothing in Madison’s writing or notes indicating an individual right to own guns for either recreation or self-defense. In addition, when the House discussed the amendment, there was also no such talk during the debate. On the contrary, Madison’s original version of the amendment read as follows:

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.”

Isn’t that interesting? The original definition of “militia” was essentially everyone who was not a conscientious objector. That sure doesn’t sound like they intended it to be an individual right. And why would they? They already knew the right to have a gun to hunt for food and protect themselves from varmints was embedded in the common law at the time. Also, at the time, there wasn’t the wide assortment of gun types, and in any case, the Second Amendment doesn’t discuss “guns,” but “arms.”

There is an individual right to own a gun, but it is not enshrined in the Second Amendment and, as is the case with every other consumer item, the government has the power to keep order and to regulate their manufacture and sale. And since the Second Amendment gives “the people” the right to “keep and bear arms” as part of their role in the “militia,” then another part of the Constitution applies, as well:

The Congress shall have power to…

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress 

Article I, Section 8

The Constitution clearly gives the government power to regulate arms as related to the militia. Even the relatively new NRA interpretation of the Second Amendment acknowledges that there is a line to be drawn. I bet if you were to ask the gun industry’s lapdog, Wayne “Fifi” LaPierre if he thinks his next-door neighbor should be allowed to keep a nuclear weapon in his garage, he would probably call that ridiculous, so there is obviously a line. We just need to re-examine where that line is. And our government does have the power to make laws and rules regarding guns.

The Supreme Court agreed with that notion repeatedly throughout the 19th and 20th Centuries. It had a number of opportunities to rule that the Second Amendment conferred an individual right and they never did. That interpretation is an absolute fabrication of the NRA and the right wing gun absolutists who have taken over the modern-day Republican Party.

Yes, there is a right to own a gun as part of the common law. However, no rights are absolute in the country. The government has police powers, which means they have the power to keep order. For example:

  • You have the right to free speech, but you don’t have the right to say you’re going to blow up the town square or kill a police officer or an elected official.
  • You have the right to a free press, but you don’t have the right to print and sell pornography on the street corner and you are not allowed to use your press to incite violence.
  • You have the right to bail, unless there is a reasonable suspicion you pose a danger to the public. 
  • You have the right to the free exercise of religion, but you don’t get to discriminate against others based on your religion-based prejudices and you don’t get to sacrifice animals or people to your gods.

Most of our rights do not derive from the Constitution, anyway. That’s a misnomer. Rather, they derive from common law and they are assumed to exist. Read the Bill of Rights carefully and you will see each amendment assumes the existence of a right. There is no right to own a gun for self-defense in the Constitution, but there is a right to own a gun for self-defense in the common law. That said, the government has the power and the duty to keep the peace, which means they can register all guns, require all gun owners to pass a screening and even a competency test and be licensed and require every gun owner to ensure every weapon.

Having the right to do or own something does not mean the owner is devoid of responsibility. We as a society have a vested interest in keeping guns out of the hands of people who shouldn’t have them. We are also well-served by ensuring, to the best of our ability, that gun owners handle them responsibly. The Second Amendment doesn’t give gun owners magical powers, enabling them to skirt responsibility for their guns, and it also doesn’t entitle anyone to assemble an arsenal of their choice and prepare to conduct military exercises against fellow Americans.

Here’s what needs to happen:

  • Register every single gun and title it to a specific owner, who has been thoroughly screened. When the gun changes hands, so does the title and the responsibility.
  • License every gun owner. They should have to pass a background screening to get the license and screened regularly after that. They should also have to demonstrate competence and that they know the law and the basics of gun safety.
  • Every single gun should have an insurance policy on it, with the gun owner liable for any damage done due to negligence. Obviously, a basic shotgun on a farm should only pay $1-2 a month or something like ta, whereas a city-dweller who owns an AR-15 that has been converted to semi-automatic with a 30-round clip should pay a lot more.
  • We need to add a lot more to the screening process and no gun should be sold without a thorough background screening. And even then, there should be a 10-day waiting period, to give the buyer a chance to cool off. If they are in a situation where they feel they are in mortal danger, they should call the police, not buy a gun.
  • We also need to pass new laws limiting the types of guns available to the general public. There is absolutely no reason for anyone to have a military-style weapon to shoot deer or protect their home. As none other than Saint Ronald of Reagan once said, “I do not believe in taking away the right of the citizen for sporting, for hunting and so forth, or for home defense, but I do believe that an AK-47, a machine gun, is not a sporting weapon or needed for defense of a home.”
  • Last, but not least, like buying Sudafed at the local CVS, everyone who buys ammunition should be tracked, and anyone who buys more than a reasonable amount of either guns or ammo should be visited by police. Regularly.
  • No online sales and shipping of guns or ammunition. None. Zero. You want it? Go to the store and buy it.

Rights come with responsibilities, folks. And while I do believe that the vast majority of gun owners are responsible, we tend to pass laws to protect ourselves from those who are not. Most law-abiding gun owners will not mind if they have to register all their guns and spend $20-25 to get a $500 gun licensed. Those who have nothing to hide won’t mind having to undergo a screening once in a while and those who do mind will be less likely to get their hands on a gun. Responsible gun owners won’t mind having to go to a gun club or shooting range to fire off a military-style weapon and they will not mind having someone scan their driver’s license to buy ammunition.

Law-abiding gun owners are not the problem. It’s the ones who try to use non-existent provisions of the Second Amendment to rationalize the average person being able to stockpile dozens, or even hundreds, of guns, and thousands of rounds of ammunition who worry the hell out of me.

At the risk of sounding like Inigo Montoya, I know for a fact that the Second Amendment does not mean what many gunloons think it means. It does not preclude us from exercising common sense.


Cutting the Crap on the Second Amendment — 1 Comment

  1. Everyone has a right to own or drive a motor vehicle. But the vehicle must be licensed and the operator must be licenced to use it The NRA promotes the idea that something more potentially dangerous that a motor vehicle should be unregistered and used by an unlicenced person. Logic requires that guns should be registered and the operator be licenced. But then again logic is not a strong point in the NRA. They love their guns more than their children but if their child is hit by an unregistered car or an unlicenced driver, they will scream for “justice”