The Truth About the Real Second Amendment

The 27 words in the Second Amendment are easily among the most misunderstood and misinterpreted passages ever written. It doesn’t matter where you fall on the political spectrum, the chances are you are baffled by what it says. I say that because people from all sides and the middle get a lot of it wrong. Both sides apparently think it prevents the government from regulating guns, because the right side holds it up as an absolute barrier to any sort of gun control and the left side thinks the only way to ban AR-15s or expand background checks is to repeal the Second, which is equally silly.

Both of these extremes are ridiculous, of course. The Founders – meaning those who wrote the Constitution – created a document that established a sort of regulated form of liberty, not the unregulated form that right wingers imagine. They wrote the Constitution with the knowledge that unregulated freedom would eventually result in something resembling anarchy, which is not good for anyone. In reality, it seems kind of silly to believe a group of men who worked so diligently to build a framework for a government that would always work for the people would be in favor of firearms laws that allowed people who were pissed off to go into a store, buy a cannon, a gun or a bomb that could kill multiple people and act on their anger.

That goes for the geniuses who claim the Second Amendment was intended to allow us to protect ourselves from the tyranny of our own government. These folks seem to believe the Founders assumed the government would someday become tyrannical, so they placed in the Bill of Rights a mechanism for the violent overthrow of the government. Right. In reality, the people who wrote the Constitution were sure the document would prevent tyranny. In fact, they believed strongly that anarchy would more likely breed tyranny. They put checks and balances into the founding document of our democratic republic as a way to prevent tyranny, so why would they put a mechanism for violent overthrow in the Bill of Rights?

There is a lot of evidence the people who wrote the Second Amendment believed strongly in regulating firearms. Whereas many people, including many “political junkies” think gun regulation didn’t actually start until the 20th Century, the fact of the matter is, the early leaders of our nation actually believed strongly in gun regulation and they engaged in a lot of regulation, even in the early days.

For example, while the gunloons and the NRA wail about gun registration these days, every North American colony created a militia. Part of militia service included mandatory service of white men between the ages of 16 and 60 and the registration of every privately-owned weapon to be used In militia service. In fact, those guns were subject to regular inspection and their owners were routinely fined if their guns were not maintained in good working order. This type of registration continued after the Constitution was written and the Second Amendment was ratified.

In point of fact, in most cities in the new states, guns were kept in an armory, not in individual homes, and ammunition was kept in a municipal magazine. If the Founders intended the Second Amendment to establish an absolute individual right, how could they have done that? The muskets in use during the period contemporary to the Second Amendment featured registration and heavy regulation, but we can’t regulate AR-15s now? You have to be kidding.

For that matter, consider the gunloon/NRA view of open carry and concealed carry rules. Our laws derive largely from English Common Law; the Revolution and the Constitution did not simply wipe that away. In English Common Law, there was no right to carry when traveling and handguns, which could be concealed, were actually subject to even stricter regulations. Just as the city of London long ago banned the public carry of guns or other weapons, most cities in the new United States banned the carry of guns and other weapons, especially if concealed.

The right to carry a weapon only began to develop in the middle of the 19th Century, and primarily in the South, and only when gun makers started building smaller and cheaper weapons that anyone could afford. Southern law enforcement simply decided they had better things to do with their time than to enforce public carry laws, so they stopped. And for those who adhere to the idiotic notion that gun control is not a deterrent, they should know that murder rates in the American South skyrocketed throughout the 19th and 20th Centuries. To this day, the pattern holds; gun murder rates are higher in the South, where they look the other way as people carry weapons around with impunity. The point is, there is no right to carry a weapon, concealed or not, in public. If there were, why did cities and towns nationwide ban their open and concealed carry?

As noted previously, many cities in the new United States actually prohibited the storage of guns in any home. Instead, they required all guns to be stored in a central armory. They also strongly regulated the storage of gunpowder in magazines located in key areas of the city, only allowing access when militia activities necessitated it. In most states, even in rural areas, guns were not allowed to be loaded in the home because of the danger posed; they could discharge in a fire and injure firefighters and other innocent bystanders. In other words, they regulated the guns and the ammunition in a way to keep people safe, which is something we are told is impossible these days because of the Second Amendment.

Another very important aspect of English Common Law that many gunloons and NRA lobbyists like to pretend isn’t a thing is the duty to retreat. These days, we are being treated to a ridiculous concept called “Stand Your Ground.” It’s ridiculous concept, in which anyone who shoots someone else needs only claim they feared for their safety and they can get away with it. It doesn’t seem to matter whether or not they were in actual danger; all they have to do these days is say they felt threatened, and they can shoot anyone they want. In the early days of the Second Amendment, if you felt threatened, you had a duty to do whatever you could to reduce that threat. “Stand Your Ground” is nothing more than a rationale for shooting anyone you want with impunity.

As one can see, those wonderful students at Marjory Stoneman Douglas High School, who are asking us to keep them safe, have a reasonable basis for thinking we can do more than we have been doing about easy access to guns. Yet, they are being told the Second Amendment prevents us from limiting access to guns to those who pose a potential danger to the community, including our children. That is simply not true. When you look at the behavior of communities and states immediately before and after the Second Amendment was written and ratified, it is clear the law does not preclude proper regulation of guns in a way that keeps us safe and secure.

No one is seriously talking about banning all guns and/or confiscating guns already out there. However, there is no reason in the world why someone living in a populated area has to have a military-style weapon for anything. You can’t use it for hunting and you don’t need it for protection. And when we weigh the safety concerns of having such weapons in a community against the right to bear arms, it makes no sense to allow these weapons to be unregulated. And contrary to what many ignorant ons to be unregulated. And contrary to what many gun obsessed people might tell you, the Second Amendment doesn’t guarantee your right to own and carry a gun just because you want to. The evidence of what went on at the time demonstrates that to be untrue.

Every year, more than 100,000 people are shot and about 30,000 of them are killed.  Please stop telling our kids there is nothing that can be done. There is a lot that can be done; the Second Amendment doesn’t preclude action.


Also published on Medium.

3 comments

  1. The 2nd reads:
    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.
    One very important part of that reads:
    …. of the people ….
    This gets overlooked. “the people” is plural, not singular.
    There is no provision for individual owning of firearms. It’s meant in the collective. For community defense.

    Thank you, Milt.

    1. Bruce_F I agree with you but unfortunately the wording is actually ambiguous and the gun rights lobby argue that “the people” means “each and every person.”

      Of course that is nonsense given the context that Milt points out in his article but they will argue about that and also the meaning of the comma that comes before it. There is actually a Penn & Teller video of arguing the gun nuts’ position.

  2. Personally I have never been confused about the phrase “well regulated milita.”

    I have met gun nuts that would qualify as “well regulated” but they aren’t the type to make the news. Almost by definition the gun owners who become news worthy aren’t well regulated.

    The proposal I like is to require personal liability insurance for gun ownership. The bean counters would sort out the meaning of well regulated right fast and the public would save all sorts of money on top of lives.

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