A few thoughts on the Second Amendment

The Whiskey Rebellion, when a "well regulated militia" was used.

As Beau of the Fifth Column says, "Well, howdy internet people".

This piece is going to be me thinking aloud. It is influenced by views I've come across. It is influenced by my thinking on this subject, from the spectrum of views on offer. With this piece I hope to engender a conversation on how we as a nation can pull ourselves back from the brink of this mythical Wild West narrative, where people walk into 7-Elevens strapped as if they're walking into Fallujah.

The first thing I want to say is this: the Second Amendment is not going to be repealed. It's not going to be amended. Of course, I could be wrong; after all, we've had one case of an amendment—the 18th, banning alcohol—being repealed. But let's be frank: the idea that this country, which developed its own brand of whiskey, was going to stay dry was farcical. Prohibition was a project of busybodies who should have been dismissed out of hand. This was an instance of the country taking leave of its senses.

As a corollary, though, I also say this: none of our rights are absolute. All of them have limits—save, perhaps, the Fifth Amendment. Even our sacrosanct First Amendment has exceptions: libel, slander, yelling "fire" in a theater when there is, in fact, no fire.

Here is the text of the Second Amendment:

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.

It seems pretty straightforward. But it's nothing of the kind.

Those of us on the left-liberal side focus on the first part: a "well regulated Militia". Many of us go to the extreme: if you're not in the National Guard, you have no right to bear arms!

Then on the other side, you have the focus on "the right of the people to keep and bear Arms, shall not be infringed." Aha! they say. There can be no laws against gun ownership! I can own a surface-to-air missile!

These, of course, are clownish positions. Extreme positions usually are.

In this piece, I also won't address the notion that the Second Amendment was a slave-owner's amendment to put down slave revolts. I will let scholars debate that, as they should. I will just say that the first use of state militia to put down a rebellion was the Whiskey Rebellion of 1794, which was most definitely not a suppression of a slave revolt. (It was also the first and final time the Commander-in-Chief personally led his troops. Just an added historical filigree.)

But, as so many have written before me, one must view the amendment in its historical context. 

One of the things which the Framers abhorred was a standing army. They saw that as a tool of tyranny. One would blanch at what they would think of our military-industrial complex. And, of course, they had just recently completed a war of independence against an empire with a standing army. They saw the preservation of the Republic as antithetical to a large military establishment. And, as a federal republic, they saw that the states and their citizen militias would be the first line of defense in any war against an invader. It certainly was in the War of 1812. Even through the Spanish-American War, state militias made up a large part of the American presence in Cuba.

Of course, these state militas were under state control. They were most certainly not the self-declared militias of the 1980s and 1990s. They were, in fact, regulated. That didn't mean that every citizen who owned arms served in the militia; far from it. But even the Wild West wasn't all that wild; most communities limited who could bear arms.

Then we come to the part where the right to bear arms shall not be infringed. We who read this blog focus on the first clause of the amendment; those who don't focus on the last clause. But, again, we have to understand this in context.

The killing power which modern weapons have was undreamed of by the Framers. Even the weapons of, say, World War II pale in comparison to what we have now. If we're going to get into the minds of the Framers, as so many constitutional originalists want to do, I somehow doubt that they'd be fine with random citizens being able to murder citizens with weapons meant for the battlefield. Their weapons were of utility only on the battlefield, or in hunting. They inhabited a far different reality, and we must take that into account in any discussion of "originalism".

The Framers sculpted the Constitution to be a balance of competing interests. One of the things they feared the most was "mob rule". This they took from the demise of the Roman Republic, where rival generals appealed to the disaffected mob for support in elite power struggles. Just by following that logic, one would think that the Framers would not have intended their text to be interpreted to give license to the chaotic situation we have now, where the mob is armed to carry out a low-intensity conflict.

And to that. I once had an acquaintance. I may have written about him before. He was very much of the mind that the Second Amendment was enacted to ensure that the people could rebel against a tyrannical government. Now, the likes of Thomas Jefferson would have been of accord with that. But many of the Framers were not. They would have been aghast at Jefferson's dictum of the tree of liberty needing to be watered with blood every twenty years.

Regardless. We have the text of the amendment, and two vastly contradictory interpretations of it. 

Regulation is not implicit in the text, but explicit. "Well regulated." There's no getting around that. The second clause of the text is reliant on the first clause. One cannot ignore that first clause.

Likewise, one cannot ignore "shall not be infringed." The right to own guns is a right. That much is undeniable.

Again, I return to my premise: None of our rights are absolute. As the old saying goes, my right to throw a punch ends at your face. All our rights exist in relation to other people. 

Rights don't exist without responsibilities, and that's something too many of us have forgotten. Yes, I have the right to own a gun. But with that comes the responsibility of being a member of a society, of a wider commonwealth. My right to own a gun does not trump your right to go to church, school, a shopping mall without fearing of getting caught up in a mass-shooting event. My right to own a gun is not "infringed" by the very regulation explicitly stated in the Second Amendment. 

What we must do is escape from this either/or mentality. Ban guns completely—which won't happen—or have unfettered access to mass-casualty weapons, the results of which we witness every day. I'm not even arguing against people owning assault weapons—although a ban on them would be preferable, and has passed constitutional muster. What I am arguing is that they be regulated, as stated in the amendment. Background checks, liability insurance, even psychological tests. Regular checks as to your suitability to own weapons—i.e., red flag laws. No, these aren't perfect. But they're much better than what we have now, which is nothing. 

There is a path forward, one of common sense and of a shared responsibility to each other as citizens and human beings. We simply need to take it. Otherwise, our fate is to be consigned to more Nashvilles, without recourse. And to do that, we need to vote out everyone who objects to these measures. No more thoughts and prayers. As Isaiah wrote in the mouth of God: When you spread out your hands in prayer, I hide my eyes from you; even when you offer many prayers, I am not listening. Your hands are full of blood!

Postscript

I'm not saying that the Second Amendment shouldn't be abolished, as the Eighteenth was. But I'm not sanguine about that possibility. Now I'm in mitigation mode. If this country does come to its senses around guns, I will be more than pleased to vote for the 28th Amendment repealing the 2nd. And what will it take for it to do so? A tragedy of such an immeasurable nature that decent people cannot fathom it. That is where we are.

***

Like what you're reading? Never miss another post! Get notified via email here.

Donate at the link below to keep us going.