Created: 1996

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Copyright © 1996-2012 by owner.

Modified: 26 Oct 2013

Constitutional Issues

THE RIGHT TO KEEP AND BEAR ARMS

WHAT THE CONSTITUTION SAYS, WHAT IT DOES NOT SAY, AND WHAT WE THE PEOPLE CAN DO ABOUT IT

CONTENTS  FOREWORD  CONSTITUTION  CONTRADICTION?  ADVOCACY  THE NRA

 

CONTENTS

 

CONTENTS  FOREWORD  CONSTITUTION  CONTRADICTION?  ADVOCACY  THE NRA

(1)

FOREWORD

Before embarking on this subject, I should make my personal feelings clear, lest my intentions be misconstrued.

  • As a matter of general principle, I advocate maximum individual liberty consistent with the objectives of the U.S. Constitution as set forth in its Preamble, namely:  "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."

  • As to the specific issue of weaponry, it is my personal opinion that all responsible, law-abiding adult citizens should be free to acquire weapons if they want or need them, and that they should be free to use those weapons for any purpose which does not threaten public safety, undermine the democratic process, or encroach upon the legitimate rights of others.

This is my own opinion.  And it is the opinion of many, perhaps most Americans.  However, from a practical standpoint, most would also agree (and experience has shown) that a policy of totally unrestricted weapons access and use is unsound and unwise in a complex and increasingly populous society such as ours.  And it is not a Constitutional guarantee.  Let us see why.

 

CONTENTS  FOREWORD  CONSTITUTION  CONTRADICTION?  ADVOCACY  THE NRA

(2)

WHAT THE CONSTITUTION SAYS


(2a)

AMENDMENT II (in full):

"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."


Some prefer to interpret the Second Amendment as a flat and unconditional prohibition of government's monitoring or restricting the distribution, possession, or use of weapons in any way.  No qualifiers, ifs, ands, or buts.  But is that what it really says?

If, in drafting the Bill of Rights, James Madison had intended the Second Amendment to be a flat guarantee of the unrestricted right of every citizen, to obtain whatever weapons he wished, and to use them for whatever purpose he wished, he obviously could have made this already brief amendment even shorter and more concise.  It would have read simply, "The right of the people to keep and bear arms shall not be abridged."  No qualifiers, ifs, ands, or buts.  But that is not what Madison wrote.  So let us examine what he did write, point by point.

POINT 1:  Note that Madison used the word "infringed," not "abridged."  I point this out because the generally accepted meaning of the word "infringed" (from the Latin frangere, which means "to break") has changed significantly since the early Nineteenth Century when the Bill of Rights was drawn up.  As we use it nowadays, the word "infringe" has a connotation close to that of "abridge" or "encroach upon."  But in Madison's time its meaning was closer to that of the word "abolish."

How do we know this?  There are language experts whose profession it is to analyze historical writings in the context of other learned writings of the period, and to determine the original meaning and intent of such documents in light of the conventional interpretations of the terms used therein at the time they were written.  In this way we know, for example, that Queen Victoria's use of the terms "awful" and "terrible," in describing of the architecture of St. Paul's Cathedral in London, would have been the equivalent of "awesome" and "terrific" in modern-day parlance.  Likewise, scholars of the American English of the early Nineteenth Century understand that James Madison used the phrase "shall not be infringed" as a means to ensure that the right to keep and bear arms would not be abolished, not to imply that it should never be subject to reasonable qualifications and restrictions.  Clearly, if Madison had truly intended that the right to keep and bear arms was to be absolute, and not even to be "abridged," he would certainly have used that term rather than "infringed."

POINT 2:  By qualifying the Second Amendment with the phrase, "A well-regulated militia being necessary to the security of a free State," Madison made clear the purpose for the right to keep and bear arms.  It is not for hunting.  It is not for target practice.  It is not for gun collecting.  It is not even for self-defense.  And it is most certainly not for the purpose of empowering any group of disgruntled citizens to march into City Hall, the State Legislature, or the Congress, and overthrow the duly elected government at gunpoint.

The Second Amendment guarantees the right to keep and bear arms only for the express purpose of maintaining a regulated militia.  Note that this is not the sole purpose for which weapons may be legally kept and used in the United States, but it is the only purpose which is explicitly guaranteed by the Second Amendment.

POINT 3:  "The people are the militia!" I have heard some say, in defense of various paramilitary groups which have spontaneously sprung up here and there.  And in one sense it is true: the militia is made up of common citizens.  Very well, let us take a look at what the Constitution says about the militia.

Again, the Second Amendment itself stipulates that a militia is a "well-regulated" entity, and that its objective is "the security of a free State."  This in itself obviously rules out any groups whose aim is to subvert or overthrow the duly elected government.  Furthermore, "well-regulated" implies that militia membership is not necessarily open to everyone, but that those deemed unsuitable for service, such as children, criminals, addicts, and lunatics, may reasonably be excluded.

The legitimate functions of the militia are described in the main body of the Constitution...


(2b)

ARTICLE I, SECTION VIII (in part):

"[15] To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;

"[16] To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"


This makes it inescapably clear that the specific purpose of the "well-regulated militia" is to uphold and protect the duly elected government, not to oppose it at the whim of militia commanders as some have suggested. (Even if that were one of its intended functions, the very notion of a renegade band of militiamen armed with assault rifles and grenades facing down the entire United States Armed Forces is a bit far-fetched to say the least.  Our government has an established mechanism for the citizens to alter or abolish it, and overthrow by force isn't it.)

The Constitution mentions "the militia" in one other place, specifically...


(2c)

ARTICLE II, SECTION II, PARAGRAPH 1 (in part):

"The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States."


This further reinforces the idea that a legitimate militia is not just any group of people who choose to call themselves a "Militia."  The Constitution clearly considers a militia to be a force under the authority and dedicated to the security of the elected government.  Ordinarily this is the state government, but the President of the United States is empowered to take control of the militia when necessary.  That is it.  There is not even the vaguest hint in the Constitution that the militia might take any other form or be subject to any other authority, public or private.

Now, let me say that there is nothing wrong with people's having and using firearms for the purpose of paramilitary exercises, as long as they do not threaten or endanger anyone else in the process.  Most of these groups are actually beneficial, in that their members learn resourcefulness, responsibility, teamwork, survival skills, and safety.  It is only those few groups, whose leadership allows a posture of readiness and discipline to deteriorate into paranoia, which create a problem.  But regardless of whether their motives are noble or perverted, such free-lance groups do not constitute a "well-regulated militia" in the Constitutional sense.

POINT 4:  About a century ago it became apparent that the various states were failing to maintain "well-regulated militias," primarily because they had other more immediate and pressing demands on their tax revenues.  And so the National Guard was formed to replace what remained of the state militias.  While it is funded and regulated by the national government, the National Guard's various units are ordinarily under the direct authority of their respective state governors, unless called into national service by the President.  And so the stated and intended purpose of the former state militias is nowadays fulfilled by the National Guard.  Moreover, the National Guard furnishes its troops with weaponry, equipment, and training appropriate to its functions, so it is no longer necessary, or even desirable, for militiamen to supply their own arms.

POINT 5:  Some die-hard individuals, having been grudgingly disabused of the notion of the Second Amendment as a blanket guarantee of unrestricted gun rights, have seized instead upon the Tenth Amendment.


(2d)

AMENDMENT X (in full):

"The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."


Now, if anyone is looking for a blanket statement, that must surely be it!  But is it really?  The sweeping character of the Tenth Amendment notwithstanding, the national and state governments are still constrained to act in accordance with the general objectives set forth in the Preamble to the Constitution.  These are: "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity."

Is the formation of a more perfect union advanced by armed activists seeking to nullify the will of the majority of voters by force of arms?  Is the establishment of justice promoted by vigilante groups taking the law into their own hands, intimidating those with whom they disagree and executing (murdering) those deemed to have given offense?  Is domestic tranquility ensured by allowing unrestricted access to deadly weapons by even unsupervised children, mentally unstable people, or habitual abusers of mind-altering drugs and alcohol?  Is the common defense well provided for by having our able-bodied youth educationally crippled, because our schools must divert substantial time and resources from the job of teaching to the job of weapons control?  Is the general welfare promoted by failing to require people who possess deadly weapons to be adequately trained in their safe, proper, and judicious use?  Are we likely to have any blessings of liberty to secure to ourselves and our posterity, if we cannot learn to sit down calmly, examine the evidence, and act accordingly, instead of blundering on in an emotional frenzy and complete disregard of the facts?


(2e)

SUMMARY OF THE CONSTITUTIONAL ISSUE OF ARMS AND THE MILITIA

The Constitution is a complex document, and the many arguments regarding precisely how it should be interpreted are even more complicated.  But the principle points which the Constitution makes about the militia and the right to bear arms are briefly restated and summarized here:

Point 1: Amendment II states that the right of the people to keep and bear arms may not be infringed (abolished), but does not prohibit reasonable qualifications or restrictions of that right.

Point 2: As a primary qualification, Amendment II itself stipulates that the right to keep and bear arms applies specifically to the well-regulated militia.  This guarantee thus does not extend to those who are not members of the militia.

Point 3: As a regulated entity under the authority of the state and national governments, the militia's duties are defined in the main body of the Constitution in Article I and Article II.  Amendment II reiterates the militia's primary function as guardian of the state's security.

Point 4: Because state militias were poorly funded and maintained, they have been replaced by the National Guard.  The National Guard supplies weaponry appropriate to its function, thereby eliminating the need for militiamen to furnish their own.

Point 5: The broad sweep of Amendment X does not negate the general obligations of government as outlined in the Preamble of the Constitution.

The right of the people to keep and bear arms for non-militia purposes is neither guaranteed nor precluded by anything in the Second Amendment, or in the Constitution as a whole, a position affirmed by numerous court rulings to this effect.  If we the People desire an unqualified and unrestricted right to bear arms, or if we believe that certain qualifications and restrictions of such rights are necessary, we should express our desires and beliefs to our elected representatives, with the expectation that they will act accordingly within the bounds of prudence, reason, and the constraints of the Constitution.

 

CONTENTS  FOREWORD  CONSTITUTION  CONTRADICTION?  ADVOCACY  THE NRA

(3)

A CONTRADICTION?

At this point some readers might well wonder, if I am supposedly in favor of the right of responsible adults to own and use weapons, why do I argue that the Constitution does not guarantee that right, beyond service in a regulated militia?  Shouldn't I, as an advocate of maximum individual liberty, be arguing instead that it does guarantee such a right?  No, because it is quite clear to anyone who reads the Constitution and the Bill of Rights, in full and in context, that it does not offer any such guarantee.  Knowing this, if I argued to the contrary I would be attempting to promote a falsehood.

As in any other matter, if we are to make genuine progress we must first accept that wishful thinking and arguing against the facts will not alter those facts.  We must accept that the truth is not always what we might wish it to be.  By simply denying the facts because we don't like them, we merely make fools of ourselves.  The wise course is to accept the facts, however unpleasant or inconvenient they might be, and move onward from there on a sane and reasonable path toward our objective.

 

CONTENTS  FOREWORD  CONSTITUTION  CONTRADICTION?  ADVOCACY  THE NRA

(4)

WEAPON-RIGHTS ADVOCACY: A RATIONAL FIRST STEP

So what course of action is in order?  The first step in addressing any problem is to acknowledge that a problem exists, and to define it clearly.  In this case the objective is to ensure reasonable access to weapons for all responsible adults—including those who are not members of a regulated militia—who want or need them.  As we have seen under close examination, the Constitution does not confer any such right.  Consequently, our stubborn insistence upon a misinterpretation of the Bill of Rights will not help us, but will only make us look foolish and hamper our cause.  Indeed, continued misinterpretation of the Second Amendment is in effect a denial of the existence of the very problem we seek to address:  the lack of a comprehensive right of individuals to own weapons for their own non-militia purposes.  As long as we insist upon perpetuating the myth of an unqualified Second Amendment, we will continue in the delusion that there is no problem, or that the problem lies somewhere else, and thus never make a millimeter of headway toward finding a real solution to it.

If we are serious about establishing the right of individuals to keep and bear arms, not just for service in the militia (National Guard) but also for their own legitimate purposes, as a first step we must abandon the wheel-spinning tactics of wishful thinking.  We must soberly acknowledge precisely what the Constitution does say and what it does not say.  Then, and only then, will we have a solid footing upon which we can work, both toward crafting sane laws protecting the rights of all people whether or not they own or use weapons, and toward getting rid of stupid knee-jerk laws which encroach upon people's freedoms without protecting anyone.
 

CONTENTS  FOREWORD  CONSTITUTION  CONTRADICTION?  ADVOCACY  THE NRA

(5)

WHAT THE NATIONAL RIFLE ASSOCIATION COULD DO
(IF IT WERE AS GENUINELY CONCERNED WITH REAL WEAPON-RIGHTS ADVOCACY AS IT SEEMS TO BE WITH PROMOTING ITSELF AND KEEPING ITS MEMBERS IN A STATE OF PARANOID AGITATION)

As the leading independent influence in the matter of the private ownership and use of guns in the United States, the National Rifle Association could, if it chose, play an exceedingly positive and useful role in promoting the sane, safe, and judicious use of weapons by private citizens.  As a recognized source of vast knowledge and expertise on the subject of firearms and other weaponry, the NRA's contribution to the establishment of sound national policy on weapons could be immense and invaluable.  By acting responsibly and in the general public interest (as many other gun-advocacy organizations do), the NRA could enjoy the wholehearted support of all responsible and law abiding citizens, both those who use guns and those who do not.

However, thus far the leadership of the NRA has chosen to insist upon its pat misinterpretation of the Second Amendment as an unqualified guarantee, intentionally ignoring both the explicit qualifications built into the Second Amendment itself and the obligations of government clearly implied and expressed elsewhere in the Constitution.

Moreover, in response to the growing problem of gun violence in the nation, the NRA's curious two-pronged policy has been, in essence, to insist:

  1. that there is no problem of gun violence, and therefore no need for gun legislation, and

  2. that the problem of gun violence can be solved if only everyone acquires guns to defend themselves against each other.

Though it seeks to promote both ideas individually and separately, for obvious reasons the NRA carefully avoids the awkward juxtaposition of these two assertions in any of its own public statements.  To the objective observer, however, the dichotomy is obvious:  the first position denies that our house is on fire, while the second advocates putting the fire out by dousing it with gasoline.

And finally, although the NRA is right to challenge unjustifiable government regulation and restriction of individual rights, it has fallen into the habit of opposing even reasonable efforts to safeguard the public from the improper and injudicious use of firearms.  The NRA has traditionally opposed all efforts to restrict sales of guns, not only to those with criminal records, but even to children, and to those with histories of drug abuse, alcoholism, or mental instability.  The NRA has opposed gun registration, which in many cases could lead to the recovery of weapons stolen from legitimate gun owners and the prosecution of the thieves.  Indeed, despite the lip service it pays to the issue of gun safety, the NRA has opposed even requirements for gun owners to demonstrate basic competence in the use of weapons in order to be licensed.  While the NRA is certainly correct to point out that it is impossible to keep weapons out of the hands of determined felons, it ignores the fact that many thousands of lives are lost, not as a result of criminal violence, but simply due to ignorance, negligence, or incompetence in the storage and handling of firearms, and that many of these lives could be saved by the enactment of well written and properly targeted gun legislation and training.

What purpose might conceivably be served by the NRA's irrational and mutually contradictory policies is not immediately clear.  However, a couple of possibilities present themselves for speculation:

  1. It is possible that NRA leadership cynically views its own membership as fanatically paranoid, and perceives that there is financial or political gain to be had by exploiting this paranoia.  By pandering the fiction of a vast government conspiracy to confiscate everyone's guns, and by simultaneously portraying the NRA as the only defense against such an abuse of authority, perhaps it hopes to attract swarms of gullible people (and their money).

  2. Another possibility is that NRA leadership is not cynical, but is itself genuinely caught up in its own paranoid mythology.  (Perhaps Mr. Heston and his successors have been watching too many of his own "doomsday" films.)

In either case, as long as the NRA remains enthralled by this peculiar fantasy world of contradictions, and as long as it refuses to acknowledge and deal with the real problems facing both those who own guns and those who do not, its vast resources will be of little practical use to anyone.  Furthermore, as long as the NRA's stated objectives are based on transparently false and fanatical premises, it will never be able to earn the respect of the general public, and hence never achieve its potential as a valuable influence for weapons education and safety.  It will remain instead the ignominious butt of "gun-looney" jokes, and neither the genuine rights of gun owners nor the general interests of the public will be served.  All the rest of us can do is shake our heads, and hope that one day the leadership of the National Rifle Association will wake up to reality, get its act together, and resolve to embark upon a rational, consistent, and positive course of action in partnership with the rest of the American people.

Until then, we wait.

=SAJ=

 

CONTENTS  FOREWORD  CONSTITUTION  CONTRADICTION?  ADVOCACY  THE NRA

 

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