Friday, November 11, 2011

The Second Amendment: Clarity

In honor of those who have used arms to defend our rights...

The Second Amendment to the United States Constitution

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.

What is the law of the land?

The Second Amendment is made up of two clauses.  The first clause reads, "A well regulated militia being necessary to the security of a free state," and is known as the prefatory clause.  The second clause reads, "the right of the people to keep and bear arms shall not be infringed."  This is known as the operative clause.

A straightforward reading of the Second Amendment clearly shows that the first clause is not operational law.  It is merely a preface to the law, written to explain why this amendment was created.  Only the second clause is operational law.  The Supreme Court of the United States has upheld this understanding:

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
District of Columbia v. Heller (1)(a)

Therefore, with the understanding that the first clause is only a preface to the law, we see that the operational supreme law of the land simply declares that "the right of the people to keep and bear arms shall not be infringed."

We often try to look to other writings from our founding fathers in order to put their laws into context.  This piece will contain several quotations from those involved in the writing of the Constitution.  However, it must be understood that not all of these great men agreed with each other.  The content of the Constitution was hotly debated, and that certainly includes the Second Amendment.  Context is helpful, but contextual writings are not law.  We must remember that only that which has been codified into law is law.

What does it mean to be regulated?

Despite the fact that the prefatory clause is not operational law, we can better understand the intent of the Second Amendment when we clarify this clause.  First, let's look at what it means to be regulated.

In this context, the word, "regulated," refers to the competency of the militia.  It is an adjective form of the word, "regular" - a professional soldier.  (example: The regulars are supplemented by auxiliaries to form a larger, combined unit of soldiers.)  It would be similar to saying, "well trained" and "well equipped."  It does not refer to regulation in the sense of restriction by law.

This understanding is further supported by the fact that the operative clause states that the right shall not be infringed.  A restriction of a right is, by definition, an infringement.  This form of regulation would put the prefatory clause at odds with the operational clause.

Furthermore, if the first clause of the Second Amendment was operational and it referred to regulation in the sense of restriction by law, the amendment would contradict itself.  If the logical law of noncontradiction were violated, the Second Amendment would be absurd - nonsensical.  Ultimately, it is clear that the Second Amendment in no way supports any restriction on the right of the people to bear arms.

What is a militia?

Our understanding of the Second Amendment can also be strengthened by clarifying what a militia really is.

Just before the American Revolution, the colonies were protected from external threats by two primary forces: the regular British troops and the colonial militas.  The British Regulars were controlled by the British Crown to defend the entire British Empire, but the colonial militias were managed separately by each colony.  One of the hottest political issues of the day was whether the colonies needed regular British soldiers stationed in the colonies or their own militias were sufficient.  Regular troops were expensive, and this tied into the taxation without representation problem.

By contrast, the members of the colonial militias were not full-time soldiers; they had their own occupations and provided for their own living.  They were usually required to equip themselves; private firearm ownership at this time was commonplace and expected.  In times of peace, they only assembled about three times per year for training.  Some colonies required that all able-bodied men participate in their local militias.  They were not used to "police" the citizens; they were formed by the citizens to deal with threats outside of their localities.

In times of need, especially in the tense period just before the Revolutionary War, minutemen were formed as a more dedicated portion of militia.  They made up a fraction of all the militia, and underwent more training and preparation than the rest.  Rather than display their capabilities publicly, they often hid supplies and ammunition from the British.  Basically, the purpose of the minutemen was to respond quickly to any sudden armed threat from the Crown's troops.  They were used to prevent British raids of supplies.  They served as short-notice soldiers, and that is how they earned their famous title.

After the war had actually begun, it was determined that local militia forces were not up to the task of fighting a sustained conflict.  A Continental Army of full-time regular soldiers was formed.  Throughout the war, the army was often supplemented with militiamen.

Why was the Second Amendment created?

In the context of the American Revolution, it seems clear that the minutemen are the inspiration for the wording in the first clause of the Second Amendment.  They were well trained, well equipped militiamen.  They were used to maintain the freedom of the colonies against armed abuse by the British Crown.  To put it more plainly, they kept an overreaching government in check.

It must also be noted that our founders understood militia participation to be a fact of life as a citizen instead of a specific occupation.  The goal of protecting the freedoms of the people was intended to be accomplished by allowing all citizens to be armed.  The operative portion of the Second Amendment grants a right to the people, not just a subset of those people.

The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.
District of Columbia v. Heller (1)(b)

Today, this "new world" has been tamed and we live in times of relative peace.  However, modern examples of overreaching governments can still be found across the world.  If local citizens had been well trained and well armed, many of those abuses could have been prevented.  Our founding fathers understood this concept all too well, and I hope it is a lesson we never have to learn for ourselves.

Lest there be any doubt that the founders intended the Second Amendment to protect the people from an abusive government, see some of their own words provided at the end of this piece.  The Second Amendment guarantees all the others.

What are arms?

Now that the why has been established, let's take a closer look at the what.

It has been suggested that "arms" only refers to the weapons available at the time of the writing of the Constitution, such as flintlock firearms.  If we took this same logic and applied it to the First Amendment, we would not be able to read the news on the internet.  Furthermore, our armed forces would have a very tough time combating foreign enemies.  Not surprisingly, the Supreme Court has maintained that these claims are utter rubbish.

Despite this fact, the people of the United States are very limited as to what arms they can actually bear.  Why is this? Both the intent of the Second Amendment and the codified operational wording of the second clause point to a very broad definition of the word, "arms."

The founders clearly intended for the Second Amendment to give the people the power to keep the government in check.  Therefore, it follows that the arms available to the people must be, at the very least, equal to the arms available to the federal armed forces.

The wording of the second clause states in no uncertain terms that the right shall not be infringed.  As has already been stated, a restriction of a right is the very definition of an infringement.  Restricting some types of arms, therefore, violates the operational wording of the Second Amendment.

One could claim that it would be crazy to allow any citizen the right to wield nuclear weapons.  Our founding fathers knew that they could not see all ends, and provided a way for the Constitution to be modified in a case such as this.  (This is clarified later.)  However, such modification has not yet taken place.  At it stands right now, the Second Amendment grants the people the right to bear whatever arms they might acquire.

Furthermore, in keeping with the spirit of the founders that gave us this amendment, it might behoove us to ask, "Why must the government of, by, and for the people have access to a weapon that the people are not allowed to bear?"

What does it mean to bear arms?

The term, "bear arms," is very broad.  Transporting a rifle for hunting is a subset of bearing arms.  Storing a shotgun in the closet for home defense is a subset of bearing arms.  Carrying a handgun in one's pocket is a subset of bearing arms.  The Second Amendment lacks specificity on this matter, and ensures that specificity would be a violation by stating that the right shall not be infringed.

It must be clarified that actual use of arms is not a subset of bearing arms.  For example, a law that forbids murder with a weapon is not an infringement of the Second Amendment.

What if I think this law is ridiculous?

You would not be alone.  Furthermore, you do have options available to you.

The United States Constitution, to a degree, was designed to be a living document.  The Constitution can be modified.  Article V of the Constitution states that it can be ratified by two thirds of both houses of the federal congress and three fourths of the states.  This is no small feat, but it has been done many times in the past.  Contact your legislators.  If these super majorities cannot be reached, perhaps the law is not as terrible as some might think.

If the supreme law of the land will not be changed, you could also remove yourself from the land in one of two ways: expatriation or secession.  The former, expatration, is simply the giving up of your U.S. Citizenship.  There are many other countries with much more strict gun control laws.  The latter, secession, is the removal of your state (or other locality) from the union.  This would be much more difficult to successfully accomplish, but you may certainly contact your local legislators nonetheless.

If none of these options suits you, then your only legal alternative is to simply accept that this is the law of the land.  It was put there for good reasons, and it just might be the case that they are still good reasons today.

Relevant thoughts from our founding fathers:

First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided. [...] But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expence, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.
Richard Henry Lee, Letters from the Federal Farmer to the Republican - Letter XVIII, January 25, 1788

The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.
James Madison, The Federalist No. 46, January 29, 1788

The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ...the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.
The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them.
Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.
Tench Coxe, Pennsylvania Federal Gazette on June 18, 1789

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. [...] Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.
Elbridge Gerry, 1 Annals of Congress at 750, August 17, 1789

Disclaimer: I do not claim to be an expert on history or law.  I am simply attempting to generate healthy discussion.  I will update this as necessary.

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