Altering the 2nd Amendment to Protect Conscientious Objection

            In his recent book Six Amendments: How and Why We Should Change the Constitution, retired associate Supreme Court justice John Paul Stevens wrote that the Second Amendment should be altered so as to protect from infringement the right of the people to keep and bear arms only when they are serving in the militia.

According to Stevens, the Second Amendment should read: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia should not be infringed.”

While “when serving in the Militia” are the five words Stevens states he thinks should be added, the language he chose reveals that he actually desires to change much more. Of course, it will be necessary to go to the original text on this one.

As ratified by the states, and authenticated by Secretary of State Thomas Jefferson, the Second Amendment reads: “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.”

But in an earlier draft – passed by Congress and preserved in the National Archives – the Amendment reads: “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 differences lie in the usage of the comma, and in the capitalization of the words “Militia”, “State”, and “Arms”. I will not dwell on the usage of commas, but I will say that the fact that the states would not ratify the legislation without removing this capitalization seems to indicate that the states were worried that the Second Amendment could be eroded through defining Militia, State, and Arms in overly technical manners in the U.S. Code.

The states wanted to ensure that the new federal government did not interfere with their existing rights, and they wanted a national constitution that could be understood by all property owners, including common farmers. A federal Congress that can set the definition of the words Militia, State, and Arms – and the definitions of all the legal words within those definitions – was the last thing the people of the states wanted.

At best, retired justice Stevens is ignorant of this fact, and at worst he is hostile to it. Amendments entrenched in the Bill of Rights should be able to be understood without reference to the U.S. Code; its meaning should be plain, and easy to understand for all people who possess basic reading comprehension skills.

In an episode of Penn and Teller: Bullshit!, Penn Jillette examined the language of the Second Amendment, of which he said “gun control advocates say the phrasing is clumsy”. Jillette began his argument by admitting that states have the right to a well-regulated militia, because a people needs an organized military force to defend a country, and that the Second Amendment recognizes and protects that right.

            However, he went on to say that the Second Amendment “doesn't say 'the right of the militia to keep and bear arms shall not be infringed', it says 'the right of the people'. Now, why the word 'people'? Because the people who wrote this had just fought a war for two years against a tyrannical state militia.” Jillette continued, “They knew the time might come when they have to do that again, so they made the possession of weapons a right that the militia could never take away.”

            The idea that only the police and the military should carry weapons is so popular today, many people neglect to ask what “Militia” really means. As I explained earlier, the answer lies in the U.S. Code.

According to 10 U.S. Code, Section 311 – “Militia: composition and classes” – “Militia” means all able-bodied males aged 17 to 45 who are, or have planned to become, Citizens (except as provided in Title 32 of the U.S. Code, Section 313, which puts age limitations on National Guard enlistment), as well as females serving in the National Guard.

There are two classes of militia: the organized militia and the unorganized militia. The organized militia is the National Guard and the Naval Militia. This does not just mean the Army, Navy, and National Guard; but should instead be construed so as to encompass all state-run military forces. The term “organized militia” should be construed so as to include the Air Force, which did not exist at the time of the founding; and the Marines, which did (as a side note, the National Guard was made up exclusively of state militias until 1933).

The unorganized militia, on the other hand, consists of all members of the Militia who are not members of the organized militia. This means that the unorganized militia consists of all able-bodied males aged 17 to 45 who are, or have planned to become, Citizens (except as provided in 32 U.S. Code, Section 313), and are not serving in either the National Guard or the Naval Militia. The unorganized militia appears not to include any women; this is likely because women are, and were not then, customarily expected to fight, nor required to fight (in the case of selective service).

Founder George Mason said, “I ask, sir, what is the militia? It is the whole people, except for a few public officials.”

The fact that the U.S. Code recognizes in its very definition of “Militia” that a person can be in a militia without serving a state-run military organization formally and in person, puts a dent in the argument of the gun control advocate.

Another chink appears in the gun control advocate's armor when it is shown that to “bear arms” and to “keep arms” are not the same thing. Essentially, to “keep arms” means to own and possess weapons, while to “bear arms” means to display, brandish, and use them. The Supreme Court of Rhode Island once found that to “bear arms” has a militant connotation, while to “keep arms” does not.

In a piece entitled, “What Did [']Bear Arms['] Mean in the Second Amendment?”, Clayton E. Cramer and Joseph Olson defended the idea that “the Founding Generation, and at least two generations after them, did not understand [']bear arms['] as limited to military or collective militia duty”, “but saw it as merely one way of expressing the concept of possession”.

There exists plenty of evidence that the original plain meaning of “to bear arms” had militant connotations, although, to be clear, the militant connotation of “bear arms” does not imply that bearing arms only takes place within an organized Militia as defined in the U.S. Code. Commonly accepted definitions of “to bear arms” range from “to serve as a soldier”, “to perform military or militia service”, “to display armorial bearings (such as armor, insignia, and weapons)”, and “to take up arms”.

Given these meanings of “bear arms” and “unorganized militia”, we see that the Second Amendment provides that a person retain the uninfringed right to take up, display, and use weapons outside of the National Guard or Naval Militia, provided that he is male, is aged 17 to 45, is a Citizen or will become one, and, being able-bodied, wields the potential to physically exercise that right. To be clear, organized militias are the parties which would seek to infringe upon that right.

The gun control advocate may argue that the Second Amendment's language clearly reveals that the states must regulate all militias in the interest of security for the state. However, this is false for two reasons.

First, the regulation of militias for reasons of state security is a reason for every individual to be free to own and use weapons, not a reason against it, as Penn Jillette explained. Because militias are necessary to preserve security, the right of the people shall not be infringed.

Second, the states having removed the capitalization from the word “state” before ratifying the Second Amendment should serve to remind us that the capitalized word “State” has a specific legal definition clarified in the U.S. Code, while the all-lower-case word “state” could be interpreted to mean something more general, like the “state of nature” or “state of being”.

Claims about the Second Amendment being passed to protect the security of the States are valid. However, the Amendment was not passed in order to protect the security of solely the states, but the people that comprise and live on them as well.

To drive this point home, I note that in the last draft of the Second Amendment before it was significantly shortened to the length with which we're familiar today, the phrase “well regulated militia” was followed by the phrase “composed of the body of the people”.

To reiterate, it is not that the States don't have the right to regulate their own militias in a way that protects the security of the people and their State. They do; it's just that this invokes very few obligations on the part of unorganized militias and ordinary gun-owners as conditions of keeping and beaming arms.

This set of obligations does not include registering weapons, getting formally trained and licensed, or joining a militia. What it does include is being adequately well-trained, whether by oneself or by one's associates.

If the original meanings of “regulate” and “well-regulated” – as understood with regard to the Interstate Commerce Clause – are any indication, a “well regulated militia” is not some particular militia, nor variety of militia, which is legislated upon in some way or another. “Regulated” means neither “ruled”, nor “governed”, and especially not “controlled”.

            To be “well-regulated” means to be “kept regular”; i.e., kept free from undue interruptions, inhibitions and controls.

            Such inhibitions and controls include anything and everything that stands between an individual and a gun; licensing, registration, training requirements, et cetera. Therefore, each time a gun control advocate argues in favor of a law on the premise that it is a “regulation” is actually undermining his own point.

Building on this, it would seem reasonable to suggest that unorganized militias can be sufficiently “well-regulated” when they are uninhibited, uninterrupted, and uncontrolled by organized militias, and especially so when they are adequately trained and physically fit enough to exercise the duties of militia service. As Michael Badnarik said, “gun control means being able to aim your weapon”.

James Madison initially proposed a bill of rights during the first session of Congress; his proposal was brought to the floor of the House of Representatives on June 8^th, 1789.

That day, the text of what became the Second Amendment read, “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

More than two months later, in the midst of continuing modification by Congress, there were debates about whether the appearance of the phrase “religiously scrupulous” could be used by the British to attempt to destroy the militia, which some believed would occur through the “mal-administration of government”.

But what does the phrase “religiously scrupulous of bearing arms” mean, and does that meaning excuse private ownership and use of weapons? The answer may surprise you.

The phrase “religiously scrupulous of bearing arms” actually has a clever double meaning, which, if interpreted as such and applied properly, protects both the right to own and use a weapon and the right to claim conscientious objection to the selective service (i.e., the draft).

In regards to conscientious objection to organized military service in person, the phrase means “having religious scruples (i.e., morals) against bearing arms”. This protects people whose religious morality or ethics precludes them from using weapons, or fighting as part of an organized army, from having to do so.

            But in regards to owning and using a weapon, the phrase means “being so scrupulous (i.e., careful and attentive) about bearing arms that it resembles a religious devotion.”

Although that language did not make it into the Second Amendment as it appears today (and although, for that reason, the Amendment's plain meaning does not support that argument), it would be perfectly reasonable to argue that the original intent of the Second Amendment was to entrench the right to be a gun-toting religious zealot firmly in the Constitution where it cannot be tampered with by tyrannical majorities, sweeping societal fads, and other “light and transient causes”.

Furthermore, in a more generalized sense, the original intent of the Second Amendment is to protect the right of conscientious objection to military service based on religious morals – and the right of people to organize their own militias if and when the existing organized Militia become tyrannical – through bearing (that is, displaying, brandishing, and using) arms against said Militia if necessary.

All of this, of course, rests upon the condition that people using weapons be sufficiently trained. But the people should never pretend that this means that a State, protected by a Militia which it organizes and regulates, can rightfully compel anyone to submit to formal training requirements, nor to licensing or registration requirements, as conditions of being otherwise “free” to keep and bear arms.

Nothing stands in the way of individuals voluntarily adopting a training requirement as a condition of joining a militia, which they “organize” together through private contract, and disputes concerning which they agree to settle always through private arbitration by a neutral, uninterested agent, rather than through litigation in public or common-law courts.

In 2010, in the case of McDonald v. Chicago, the Supreme Court ruled in favor of the federal government, deciding 5-to-4 that the Due Process Clause of the 14^th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens.

One dissenting justice argued that “Public policies concerning gun control should be decided by the voters' elected representatives, not by federal judges”, later writing that “the court's decision was unique in the extent to which the court had exacted a heavy toll” ... “in terms of state sovereignty”.

That Supreme Court justice was John Paul Stevens.

The right to defend oneself and one's family and home against violent street criminals and tyrannical government agents and militias alike, whether foreign or domestic, must win-out over all. Gun-owners and non-gun-owners alike must work together to prevent the federal government from attempting to reinstate the draft, which has been considered and recommended (to varying degrees of seriousness) by Democratic Congressman Charlie Rangel and journalist Carl Bernstein (of Watergate fame).

Conscientious objectors and gun rights advocates must work together to free the public discourse from the oppressive idea that “only the police and military should have guns”, by demonstrating that gun rights can be used to promote peace. We must show that people fight for themselves, their families, and their homes, before they fight for any organized militia, or State Militia, or federal armed forces, or joint foreign command, or United Nations command.

Only the militia which does not deign to pretend that a sufficiently armed man – facing a loaded weapon brandished by an officer attempting to execute an unlawful, unconstitutional, or obviously immoral order – cannot be trusted to use his weapon for good in such a situation unless he is formally licensed and trained, should be allowed to succeed.

Likewise, only a militia which constantly reminds you that you are not fighting for it – but for yourself, your family, and your household – should be allowed to succeed. For these, indeed, are the only things that ultimately matter, and are worth fighting for.

Some obscure sentence on a dusty old piece of paper, whose apparent meaning doesn't even reflect its original intent, however? Hardly.

If only more people understood what exactly it is that Second Amendment advocates are fighting for, they would see not only our devotion to the rule of law, but our humanity, our humility, and our willingness to protect others, even if their views differ from our own; except, of course, to the point where doing so risks our own violent death.

If only more peaceful people who support gun control would see how gun licensing laws and the draft have been used to oppress minorities, and expose young people to danger in distant lands, the anti-war movement and the pro-gun movement would be one and the same.

Originally Written in May 2014

Edited on January 9^th, February 18^th, and May 28^th, 2016