Friday, March 29, 2013


Controversy over the Second Amendment has become intellectually intense and emotionally inflamed in the past 40 or so years.  Supreme Court justices, Constitutional scholars, and lawyers have sharply divided, and court decisions have closely split, on whether it provides a Constitutional guarantee to “keep and bear Arms” without constraint.  Others who are not legal experts, all of whom have a First Amendment right to debate the meaning of the Second Amendment, are also sharply divided.  Many exercise the right to free speech and, with good evidence and argument, may have something worthwhile to say.  A few aggravate the controversy to no good effect because, in dogmatically repeating their position, they confuse their having a right to an opinion and their having a right opinion.

Like the other amendments in the Bill of Rights, the Second Amendment is brief: “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 legal arguments opposing gun control measures invariably resort to, and rely upon, a dubious reading of these 27 words.  They assert that the amendment states an unqualified Constitutional right to “keep and bear Arms.”

If this right were unqualified, it would differ from all other amendments about individual rights, which, though stated without qualification, have been qualified in their exercise by court-defined constraints reflecting long-established legal traditions derived from case law, initially English, finally American as well.  For example, the First Amendment right to free speech states no limit to its exercise, yet, on the basis of case law made by court decision, this right excludes such abuses of free speech as incitement, fighting words, perjury, slander, and libel.

But this right to “keep and bear Arms” under Second Amendment right is not unqualified.  Indeed, it is unique in its stated qualification by both the included context of its introductory phrase and the extended context of the Constitution itself, as referenced by the Amendment.  It is the only statement in the Constitution or Bill of Rights to use an absolute construction, a group of words qualifying the meaning of the whole sentence.  And, thanks to the content of the absolute construction, it is the only amendment in the Bill of Rights to address a topic discussed in the Constitution itself and thereby to qualify itself in light of that discussion.

The implications of these unique facts undermine a resort to, or reliance upon, the Second Amendment to oppose government efforts to control “Arms” by claiming that they are unconstitutional infringements.  To the contrary, the absolute construction of the Second Amendments limits the Constitutional right to “keep and bear Arms” by qualifying and justifying it in terms of the need for, and purposes of, a militia regulated according to the provisions in the Constitution.  In the absence of a well-regulated militia, any rights to “keep and bear Arms” are not Constitutional, but, by implication, civil or case law rights because the Second Amendment and Constitution so state.

What the Constitution so states nearly everyone overlooks.  Few trace the reference in the Second Amendment to a militia to the three provisions on militias in the Constitution itself.  I give all three in full.

Article I, Section 8, gives Congress two powers respecting militias.  One is “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  The other, immediately following, is “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.”

What is unusual about these two provisions taken together is their length and specificity, which indicate the Founding Fathers’ concerns about militias.  The emphasis on, and the details of, these provisions raise the question what made the Second Amendment necessary at all; that is, what considerations urged it and what ends was it intended to serve.  A glance at the possible meaning of the text in contemporary circumstances which required arms gives an answer.  For the second provision can be interpreted to imply that the federal government alone would provide arms for the members of the militia—an interpretation posing problems for order within each state and for order, stability, and defense in remote communities.  The Second Amendment eliminates that possible interpretation but recapitulates yet restricts the justification of the Constitutional right to arms on the need for, and purposes of, militias regulated as stated.

In addition, Article II, Section 2, gives the President command control of the militia.  It states that “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 provision not only makes clear federal authority for all militias, but also places federal control in the office of the President.

In sum, these three provisions on militias and their major implications tightly restrict the scope of the Second Amendment.  One, militias have three, and only three, specific purposes: execute laws, prevent insurrection, and repel invasions.  Two, the federal government creates, controls, and, under the President, commands, all militias; state governments have few and minor powers.  Three, an independent militia—that is, a self-selected group of individuals—lacks any Constitutional, legal, or judicial justification.  And, four, in the absence of militias, whose role and responsibilities state national guards have exclusively assumed, the Constitutional right to “keep and bear Arms” is a relic made irrelevant by changing circumstances.  Other rights, all traditional, respecting arms are contingent on legislative enactment or judicial articulation.

The Constitution and the Bill of Rights are the immediate textual contexts of the Second Amendment.  At the same time, these documents have an immediate historical context which helps explain the unusual attention given to militias.  As is evident in other provisions as well as in these militia-related provisions, the Founding Fathers were greatly concerned about mobs, especially armed ones, and for two good reasons.

First, the Founding Fathers, without the instructive example of a democracy, feared granting too much power to the general populace.  According to the practices of the day, they assumed that the franchise extended only to white males meeting state-established property qualifications.  They assumed that the far greater number of the economically or educationally disadvantaged lacked the stake, the sense, or the stolidity for informed, self-interested decisions.  They further restricted the effect of even this limited franchise by providing for the indirect election of senators and the President.  The Seventeenth Amendment provides for the direct election of senators, but the Electoral College remains a memorial to this distrust of the people.

Second, the Founding Fathers’ fears received reinforcement from Shay's rebellion in Massachusetts, which occurred as the Constitutional convention gathered, and required federal troops to suppress it.  Dictionary definitions of militias diverge.  Plainly, they feared a militia defined as a military force engaging in rebel or terrorist activities, typically in opposition to a regular army.  Just as plainly, they favored a militia defined as a military force raised from the civilian population to supplement a regular army in an emergency.  Thus, they were at pains to ensure a well-ordered, stable, and safe society by strictly regulating militias and carefully limiting the Constitutional right to “keep and bear Arms.”

Ironically, the Constitution reflects the Founding Fathers’ fears of “We the People.”  Their basis for fear was the perceived threat that any disaffected group of people might rise up against any government at any level.  The American Revolution against England served as a ready example of a justified rebellion.  And the Declaration of Independence asserted that people had an inherent right to “alter” or “abolish”—that is, rebel against and overthrow—a persistently oppressive government.  How the people might interpret this example or this justification, and act on one or the other or both, was the great, and greatly feared, unknown.  One basic conflict built into the Constitution is between hope that democratic government would promote “Life, Liberty, and the pursuit of Happiness” and fear that people with grievances would depose or destroy that government.  From the start, the Founding Fathers built fear into the country’s founding documents.

People have many fears, not only of oppression, but also of various threats to their sense of well-being.  Many have a generalized sense of fear which fluctuates in intensity and floats freely until it fixes on something which concentrates and directs its energies.  So the fears of one time and place are not those of another (for example, communists yesterday, terrorists today).  After the Constitution re-established the government of the United States, most fears have focused on “others,” that is, outsiders like Indians but mainly newcomers in successive waves of importation or immigration: Irish, Italians, Eastern-Europeans (especially Jews), Chinese and Japanese, Vietnamese, Hispanics, and always Africans as slaves, blacks as free people, and even a bi-racial president.  Other fears respond to changes such as socio-economic shifts (rural to urban, with emigration weakening communities); ideological shifts from religious to secular (with the focus of moral and religious fears and fervor on abortion and homosexuality); and shifts in demographics and corresponding shifts in political power.

These and other changes have prompted the “culture wars.”  The metaphor of “war” becomes material in “Arms” regarded as sources of strength in defense against perceived threats, but revealed as placebos to compensate for personal insecurities.  Such insecurities constitute the most important motive for the American affinity for, or addiction to, weapons, namely, fear.  No matter how many or what kinds of “Arms” the fearful “keep and bear”—those who already own arms are largely responsible for the recent spike in arms sales—the fearful cannot buy freedom from their fears.  To the degree that they represent or dictate to America, they show that it is not the home of the brave and the land of the free.

If freedom means anything, it means freedom from fear.  On the issue of gun control, freedom from fear means freedom from the threat of guns, which reflect and reinforce fear.  If Americans cannot control the weapons of fear, they cannot be fully free.

One final point.  The right of people to “keep and bear Arms” need not be a Constitutional one to be an assured one.  In the English-speaking world, people have possessed guns for centuries as a matter of custom, with little government legislation or judicial decision restricting them.  In America, as elsewhere, the historically and socially sanctioned traditional uses of guns—self-defense, hunting, and sport—are far too strong for any conceivable democratic government to counter by any effort to disarm law-abiding citizens.  To think otherwise is to indulge political paranoia defended by the First Amendment but otherwise indefensible.  At the same time, it is no threat to the traditional right of individuals to own and use arms for government to regulate what kinds and what capabilities can be justified by these uses in ways which comply with the public’s interest in public order and safety.  The idea that the Second Amendment, even misunderstood, trumps these fundamental public concerns reflects deranged priorities.

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