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 8th, 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 14th
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 9th, February 18th, and May 28th, 2016
