The Second Amendment Says WHAT?

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.”

gunloon 3Yep, 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  so much fear in the American people, so that they buy a whole lot 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. Not only is there no language in that single sentence that creates an individual right to bear arms, but nothing about the creation of the Second Amendment indicates that was their intention at all. In fact, the circumstances indicate just the opposite. The Federalists wanted a strong central government while the anti-Federalists opposed the Constitution altogether. When the Constitution was finally ratified, after many changes to appease the anti-Federalists, James Madison fashioned a Bill of Rights; 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 one-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,

“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.”

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

gunloon 5There 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, the 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.”

Interesting, no? 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 they had the right to have a gun to hunt for food. At the time, there wasn’t the wide assortment of gun types. Of course, the Second Amendment doesn’t discuss “guns,” anyway. It says “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)

gunloon 4The 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 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.
  • You have the right to bail, unless there is a reasonable suspicion that you murdered people and may do so again. ‘
  • 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, but rather, they derive from common law. 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. However, 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 own something does not mean the owner is devoid of responsibility. We have a vested interest in keeping guns out of the hands of people who shouldn’t have them and in making sure those who do have them 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.

gunloon 2Rights come with responsibilities, folks. And while I do believe that the vast majority of gun owners are responsible, we 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 to get licensed. They won’t mind having to undergo a screening once in a while. They won’t mind not being able to buy a military-style weapon and they will be satisfied with the experience of having to go to a shooting range or a gun club to do it. And they will not mind having someone scan their driver’s license to buy ammunition.

Law-abiding gun owners don’t bother me. 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 of you think it means. It does not preclude us from exercising common sense.

Click here for reuse options!
Copyright 2015 The PCTC Blog