Why the Second Amendment Requires the Regulation of Automatic Weapons

 

            The Second Amendment was ratified in 1791 as one of the Bill of Rights, the ten amendments necessary to persuade the states to ratify the Federal Constitution. States insisted on the Second Amendment as a condition for ratifying the Constitution to protect their autonomy from the power of the national government. Until the Civil War, all the effects of the Constitution were limited to the federal government alone. States were free to regulate weapons.

            The Second Amendment 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."

The Militia

            A militia is a military organization drawn from the civilian population, as opposed to a professional army. All able-bodied males between the ages of 17 and 45 were required to be Militia members when the Second Amendment was ratified. Militia members owned their own guns but were required to keep them in working order and to report for duty when called. As there was no standing army or police force when the Second Amendment was written, the Militia was the law enforcement and national defense forces of the day.

            Militias were state forces, not federal. Fear of standing armies was the major motivation for siting lethal force in the population under the control of the states, but the slave states also were concerned about the national government interfering with their peculiar institution and insisted on controlling the whip hand.

            The War for Independence proved the deficiencies of the Militia system, which is why Congress created a Continental Army to fight the British. General Washington could request troops and supplies from the states, but they didn't always deliver. Even after the Constitution was ratified, during the Whiskey Rebellion in 1794, the local Militia had proved unequal to the task of restoring order and collecting taxes. President Washington then assembled a federal militia of more than 12,000 men from the surrounding states and eastern Pennsylvania. The weakness of the militia system was that militias could turn into mobs.

            The Second Amendment guarantees that the federal government won't abolish the state militias or prohibit the people from keeping and bearing arms. I won't argue against the Supreme Court's determination that weapons like shotguns and hunting rifles are allowed to law-abiding citizens or that handguns are allowed for people to keep in their homes for protection. Some people live in rural areas where they may be endangered by wild animals, and law enforcement may be far away. In colonial times, people needed guns to fight Indians, wild animals, and criminals.

A False Analogy

            What I will say is that the Supreme Court's statement that "Just as the First Amendment protects modern forms of communiciations, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" (Heller p.8).

            The equivalency of all bearable arms is a preposterous concept. It is a false analogy to equate whether what someone says, writes, or hears is "indecent" or whether using thermal imaging with someone's utility bills to surmise they are growing marijuana in their house constitutes a search is the same as giving a gun that can fire only three or four bullets per minute the same legal status as one that can fire hundreds, merely because it can be carried by a person. This is a perfect example of pure logic yielding an absurd result.

             In 1791, guns weighed ten pounds, and an expert marksman could shoot only three or four rounds per minute. The guns were inaccurate, useless beyond 100 yards, and dangerous to the shooter. Today, automatic weapons shoot between 800 and 1,500 rounds per minute. Sniper rifles may be accurate to a range of two miles. The Brown Bess musket of the Revolutionary War period weighed ten pounds, while modern pistols can be carried in a woman's purse where her two-year-old can get it and shoot her mother dead in the supermarket. The Supreme Court is saying that these two guns are equivalent under the law. And this is the reason so many people claim a blanket "right to bear arms."

            How did the Court come to such an obviously irrational result? Simple. They re-wrote the Second Amendment. The Heller decision says, "The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be abridged.'" The only problem with this argument is that even though the Amendment could be rephrased, it wasn't. The Supreme Court then proceeded to decide the case as if it had, claiming that the first two phrases: "A well-regulated Militia, being necessary to the security of a free State..." are a preface, an introduction having no operational meaning.

            This is also absurd. The Preamble to the Constitution: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." This is the preface to the whole document, its purpose. What follows is essentially nothing but instructions.

            Starting with: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

            Then: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States..."

            Followed by: "No Person shall be a Representative who..." Get the picture? No prefaces. It's nothing but one instruction after another.

            In contrast, to the Supreme Court's interpretation of the Second Amendment as being a preface, the First Amendment begins, "Congress shall make no law..." The Third, "No Soldier shall..." The Fourth "The right of the people to be secure..." The Fifth "No Person shall..." In the Sixth "All criminal prosecutions..." The Seventh "In suits at common law,..." The Eighth, "Excessive bail shall not be required..." The Ninth, "The enumeration in the Constitution, of certain rights,..." and Tenth "The Powers not delegated to the Constitution..."

            The Framers of the Constitution had the delicate task of talking about militias without taking credit for their creation, making it clear that the Militias were pre-existing state bodies before the United States federal government was even conceived. Hence, "A well-regulated Militia..." leaves the militia clearly as a state institution, and grounds "being necessary to the security of a free State" in the "ensure domestic tranquility" purpose in the Constitution's Preamble. It's not a preface. The Amendment couldn't say, "There shall be militias of the several states," because that would make them creatures of the federal government. "A well-regulated Militia" is a statement acknowledging the existence of independent state power within the federal system. That's why the states insisted that before ratifying the Constitution, their power be acknowledged in a Bill of Rights.

            Far from being a preface, well-regulated militia refers specifically to the practical need to have interoperability of arms, so soldiers could share ammunition and pick up and fire each other's gun in the chaos of combat in a fighting force where every soldier supplied his own weapon. Even today, standardizing guns and bullets is a major issue in multi-national forces like NATO. The Supreme Court's ignorance of the actual combat conditions and obstacles of colonial combat and desire to reach a pre-conceived conclusion led it to edit the Second Amendment to the detriment of people's safety. There is no constitutional right to bear arms for illegal purposes, and people who don't own guns have as much of a right to self-defense as those who do. The regulation of firearms consistent with the clear intent of the Second Amendment is how the unarmed protect themselves.

            The Supreme Court, on the other hand, decided that the beginning of the Second Amendment has no governmental meaning, it's an introduction to the purpose of the last phrase, "the right of the people to keep and bear arms shall not be abridged." The Court removed the right to bear arms from its militia and security context and gave it to the individual. That's why so many gun aficionados are working overtime to expand gun rights, opposing background checks, calling for concealed carrying privileges, and opposing any limits on the kinds and amounts of weapons a person may possess.

            Although the majority of the Supreme Court fashion themselves as strict constructionists, textualists faithful to the meaning of the founding document, when it comes to the Second Amendment, they should be called re-constructionists. In other contexts, they find meaning by going back to English common law and even further. But the case of the Second Amendment, when encountering a textual difficulty, they just re-wrote it.

             In my opinion, the church and school shootings and mass killings stem directly from the Supreme Court's decision to ignore the militia and security phrases, the first two of the Second Amendment. In examining the Constitution and legal documents in general, the most important points come first. Hence, the First Article of the Constitution is about the powers and composition of the legislature, not the executive or the courts.

            I am an English major, not a lawyer, and that's appropriate because the Court used a linguistic, not a legal, argument to determine that the first two phrases of the Second Amendment are a preface. It's clear from a grammatical standpoint that the subject of the text of the Second Amendment is "A well-regulated Militia..." Of course, the relationship between a militia, a secure state, and the right to keep and bear arms is ambiguous. One must assume that those who wrote "Congress shall make no law" and "No soldier shall" were perfectly capable of using extreme precision in wording when desired and that any vagueness was intentional, not irrelevant.

            So, let's return to the Court's argument that all bearable arms are equally protected, "even those that were not in existence at the time of the founding." According to the Court, if I could invent an atomic bomb that was small enough to be shot from a gun that I could carry, it would be protected right along with a 1791 rifle that could only shoot three or four bullets per minute to a distance of 100 yards or less and had to be reloaded after each shot.

            I submit that the framers of the Constitution were not morons who did not anticipate technological progress in armament technology. Many of them were the soldiers who fought in the War for Independence and would have been more than well aware of the constant search for better and more lethal guns. Perhaps that's the reason they left deliberately vague the relationship between Militias, security, and the right to keep arms. While guns in 1791 could fire only three or four bullets per minute, and guns today can fire 800 to 1,500 bullets per minute, I do not think that the men who wrote the Constitution would consider them equivalent, as Justices Scalia, Roberts, Kennedy, Thomas, and Alito did.

            While certainly the people who wrote the Constitution could never have imagined the internet and the 1996 Communications Indecency Act, and they would have difficulty imagining thermal imaging but not going through another person's garbage or effects, they were intimately familiar with instruments that could fire 800 to 1,500 bullets per minute. They were called well-regulated militias of 200 to 400 men. Today, the Second Amendment would seem to require that a single eighteen-year-old with the firepower equivalent to a militia in 1791 would have to be well-regulated.

Return to Institute of Election Analysis Home Page

Contact: Joshua Leinsdorf