Thoughts On The 2ed Amendment

As a gun owner for nearly 30 years I listened with great interest some of the discussion of the Second Amendment during the Supreme Court hearings on March 18th.

I'm certainly not a legal or Constitutional Scholar but I have debated the Second Amendment many times in various political forums. Here are some weaknesses I’ve found in the conservative arguments which seem to be repeated by some of the Conservative members of the USCS.

POINT 1: The term "The People" sounds all-inclusive. But it's clear from the Preamble of the Constitution that "The People" were a small section of the population. Why? Read it:

“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.”

Surely the “Blessings of Liberty” were only intended for a subset of the population. It was clearly NOT meant for slaves. The politics of the Constitutional Convention, in fact, required the continuation of slavery. Sadly, we’re left with no other conclusion then the Bill of Rights was NEVER originally intended to cover the entire population. In the case of the Second Amendment, states would be free to ban some from owning guns.

POINT 2: If the original intent of the term “The People” were all inclusive, do those who contend the Second represents an unqualified individual right claim the Second Amendment protected the rights of slaves to own guns? Surely the slave states would NEVER permit this any more than they would permit slaves freedom of the press or freedom from unlawful search and seizure. To think otherwise is laughable.

POINT 3: If the Framers intended the Second Amendment to be an unqualified individual right to bare arms, they could easily have used unambiguous language such as “Congress shall make no law prohibiting the right to bare arms” leaving no question as to their intent. Such language was not foreign to them: it was used in the First Amendment.

The Framers choose not to use such language but instead prefaced the amendment with mention of the militia. The prominent mention of the militia is there for a reason. It explains why the right of the “people” (white males) to bare arms must be protected. While some on the Right ignore what appears to be an obvious qualifier, and make torturous arguments about the Framers’ use of a colon vs. a semicolon to “prove” the Second protects an unqualified right to bare arms, imagine some simple changes in the language to make it more comprehensible to modern readers:

Since 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 infringed.

POINT 4: The Militia Act of 1792 was written and ratified within a few years of the ratification of the Constitution and the Bill of Rights. The original intent of the Second Amendment would have been abundantly clear in the minds of Congress. It states:

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.
Source: http://www.constitution.org/mil/mil_act_1792.htm

POINT 5: Since the original intent of the Constitution was to grant government limited powers with all remaining powers and rights remaining with the People or the states, the real right to bare arms seems to be in that forgotten, if not utterly ignored, Ninth Amendment. Madison’s greatest fear about having a formal Bill of Rights was that if some rights were enumerated, the unenumerated rights would soon be at risk. Madison was correct. The thought of the People… even in the all inclusive sense, retaining all rights is much too threatening to Conservatives and even most Liberals.

CONCLUSION: The US Constitution is both anti-democratic and essentially reform-proof. Through our history we have imbued it with an almost mystical quality. This is the core of our secular religion. The Constitution also stands in the way of what the modern political parties want to achieve. So since it’s almost impossible to amend the Constitution in any meaningful way, American politics demands we work around around it... all the time paying lip service to “original intent” and the infinite wisdom of the Framers. The modern bastardization of the Second Amendment by the likes of the NRA and a cynical Right wing looking for wedge issues into an unqualified individual right instead of a collective right, and the consistent ignoring of the Ninth by both parties can best be explained by this predictable political dynamic.

(updated 3-21-08)

ulTRAX