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 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 and go over to the enemy.
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). Prima
facie, in legal terms, means it's a fact on its face unless proven otherwise.
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
as 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. It ignores the
meaning of "well-regulated". If it was just a preface, why would it
say well-regulated militia instead of just "A militia being necessary to
the security of a free state?" The Supreme Court ignored the plain meaning
of the Second Amendment that a militia must be well-regulated.
The Preamble to the Constitution is: "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 having 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 the 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..." clearly asserts its
existence as a fact, and "being necessary to the security of a free
State" defines it clearly as a state institution.
Far from being a preface, well-regulated militia refers
specifically to the practical need to have interoperability of arms in a
fighting force where every soldier supplied his own weapon. Practical military
doctrine desired that soldiers could share ammunition and pick up and be able
to fire each other's gun in the chaos of combat. 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. "A well-regulated Militia" is a
statement acknowledging the existence of independent state power within the
federal system with the proviso that it be controlled (i.e. not to be used against
the federal government itself.) The states insisted that before ratifying the
Constitution, their power be acknowledged in a Bill of Rights, but the federal government
insisted on proper control in return.
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 should have to be well-regulated.
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