-The Second Amendment
Looking at the actual wording, one sees that there are two separate sections to this amendment. The first is clarifying that the purpose of the amendment is to guarantee a secured free state with the use of militias. The history of the militias in the United States is a bit extensive, and full analyses of that history are available from multiple sources[1]. The second Militia Act of 1792 [2] established the militia as being comprised of every able bodied male aged 18 to 45. The "well regulated" section of the Second Amendment should not be interpreted to mean full of regulations, since such an interpretation would make little sense. Instead, especially in light of the right to bear arms should be seen to mean that the militias should be well practiced and disciplined. In order to do that with little expense from the government, citizens had to keep and maintain their own weapons and equipment. It's not hard to see this; even anti-gun activists acknowledge that this is the meaning of the first part of the Second Amendment. The problem lies in the fact that currently there are no official militias. The official state militias were transformed into The National Guard and no longer supply their own weapons.
The second part is where the rub is for gun-control advocates. "The right of the people to keep and bear arms shall not be infringed" is pretty strong legal language. As Chris Bingham pointed out in his comment on my 1st Amendment article, "'Shall' is the strongest legal terminology we use". So the prohibition to not infringe on the people's right to keep and bear arms is used with the strongest legal terms. But what does "infringed" mean?
According to the dictionary, the term means "to encroach upon in a way that violates law or the rights of another". To encroach, again using the dictionary means "to enter by gradual steps or by stealth into the possessions or rights of another". Also, it means to "advance beyond usual and proper limits."
No matter how you look at it, the Federal Government is not to violate the right of the people to keep and bear arms. Not even a little or gradually. It is not supposed to be open to interpretation. However one of the dangers feared by those who opposed the introduction of the Bill of Rights was that including it would open the gateway to viewing these rights as the only rights Americans have. And this has occasionally come to pass. Since the Second Amendment mentions militias, many have taken this to mean that the right to bear arms is only for use in the militia. Even the Supreme Court has used this interpretation the last time it addressed the Second Amendment (United States v. Miller, 1939), when it found that sawed off shotguns had no use in a well-regulated militia. The case was not about gun control laws, but about the old trick the federal government used to do when it couldn't write a law outlawing a behavior: it placed an exorbitant tax on it. In the Miller case this was The National Firearms Act, a $200 ($2,800 adjusting for inflation) tax on the purchase and transfer of such items as machine guns, sawed off shotguns, etc. However, the first part of the Amendment is a justification, not the only reason. Professor Eugene Volkut does a more knowledgeable dissection of this in his essay, The Commonplace Second Amendment [2].
The language of the second part clearly shows that the right belongs to "the people" and cannot be touched or limited, and every other place in the Bill of Rights where the term "the people" is used, it is understood to be an individual right, even today. And the 11th Amendment refutes any interpretation of the Bill of Rights as the only rights we have by saying, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Constitution and The Bill of Rights, in my opinion, are largely about marking out the limitations of our government, not providing a baseline for powers that expand with interpretation.
I find it odd that the language of the Second Amendment is not considered with the same diligence as the language of the 1st Amendment. If the Second Amendment was observed half as stringently as the right to free speech and separating church and state, The NRA wouldn't need to fight very hard at all. In my article on the separation of church and state, I was criticized strongly that the separation was absolute in the language and in practice must be adhered to as an absolute separation, a position I have some disagreement with. But, with the Second Amendment, the language is weakened in actual practice, the interpretation trend by officials takes the opposite course by allowing interference by government on the right of the people to keep and bear arms. The officials who do this, I feel compelled to add, do not have to worry about self defense or being controlled by the government. They are the government, and their protection is provided for by the military and the police.
When the Constitutional Convention formed in 1789, the lines were drawn between Federalists and Anti-Federalists, the Federalists were in favor of a strong Central Government and the Anti-Federalists proposed the opposite. On the notion of the 2nd Amendment, I look at two quotes attributed to Federalists who opposed the Bill of Rights. James Madison in Federalist Paper 46, discussed how any encroachment on the states by Federal Government would be met with "general alarm" and "plans of resistance would be concerted" in an armed effort by the state governments to resist such a move. He goes on to state, ironically from my point of view:
"That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism."
Perhaps our founders were not as forward thinking as we have been led to believe. This has occurred and continues to occur in this country. Further, Mr. Madison says that a standing federal army, logistically, could not be compromised of more than 1% of the population. As such it would be insufficient to overcome the populace, since an armed populace would be capable of raising a resistance force 25 times the number of a standing army. Numerically the population could overwhelm the military.
Similarly, Noah Webster states in "Examination of the Leading Principles of the Federal Constitution" that the idea of the Federal government being capable of overwhelming the populace was unlikely as long as the people have the "power sufficient to any other power in the states". And he goes on to say this:
"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."
The prophetic powers of both of these men have failed in hindsight. Ironically this is in part for the same reason that is cited by many gun-control advocates. Our Founding Fathers did not envision automatic weapons or weapons of mass destruction! While gun control advocates cite this as a reason why the Second Amendment is outdated. I feel it is for this reason that it is more essential than ever. I do not feel that any of our Founding Fathers envisioned a time when the weapons available to the Federal Government would so heavily outclass the weapons available to the people.
The current standing army has no need to even meet with an oppressed populace anymore. If the Armed Forces wanted to take over the country, they could do so with automated weapons systems and vastly superior fighting power. In the case of the Civil War, by far the largest act of resisting the Federal Government in the history of our nation, rebelling forces were ultimately defeated by the Union Army. The Civil War was only partially about slavery, it was much more about the power of the States versus the power of the Federal Government. The Federal power won, an idea that the Federalist founders of our country thought to be improbable.
The Civil war was lost [by the South] with a fully armed populace, with weapons of similar technology to those of the Union Army. How would such a rebellion fair today when the army has tanks, jets, machine guns and bombs of almost unimaginable devastating power? The people have no resources to match the killing power of our standing armies. In addition to that fact, many people in this country are not armed with more than kitchen knives. There is no "whole body of...people" who are armed as Mr. Webster contends in his argument. And any resistance would be propagandized to be traitorous, unpatriotic or even un-American. The obedience training our military receives is a form of brainwashing, and I think less people will question the chain of command than many would like to believe. It is not as if our military has never done anything despicable and cited "just following orders" as the justification.
If we look at Iraq, we see that an armed populace is quite capable of resisting a government they do not agree with only for a small period of time. The vastly superior force of the US military is slowly beating down the Iraqi people's stubborn resistance to democracy. It's sadly funny, if you think about it from that perspective isn't it? It does show that The US military is more than up to the task of suppressing an aggressive populace armed with moderately heavy firepower. Firepower, I might add, that is more advanced than most American citizens have access to. As George Carlin asked in his skit on flamethrowers, "I'd say we're f----ed if we have to go up against the army, wouldn't you?"
As Mr. Webster states, before the populace can be ruled, it must be disarmed. America has voluntarily and steadily disarmed itself by not keeping arms, and by repeatedly calling for disarmament for the purpose of safety. We'll address this and more in part 2.
References:
[1] A good starting point for researching militia history is: http://en.wikipedia.org/wiki/Militia_(United_States)
[2] http://en.wikipedia.org/wiki/Militia_Act_of_1792
[3] http://www.law.ucla.edu/volokh/common.htm
©2008 Taliesin, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Sunday, February 24, 2008
Last modified: Wednesday, July 9, 2008
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Reader Comments:
Posted By: Aguila1
Date: 2008-02-25 07:27:11
Correct me if I am wrong, but the Civil War is not a good analogy to show the strength of the military over an armed insurgency, because the Confederate forces represented their government's military. The tactics used were passed down from previous wars and did not adjust to the day's technology, thus the enormous casualties sustained. Guerilla warfare, where direct confrontation with a larger force is avoided, was not used as a primary tactic. If it had, I doubt the Union would have won, as history has proven that a small guerilla force can bring a larger military to its knees.
Posted By: Ozlanthos
Date: 2008-02-25 08:29:05
Personally I am offended by those who suggest that we have to give up our arms. If you want to know what life would look like in this country without public possession of firearms, GO TO MEXICO!!! Down there the only people with guns are the cops (who are often corrupt), the military (filled with beings just as corrupt as the cops, and the CRIMINALS!!!
Most people are scared out of their wits by even the sight of a gun. In a country where guns are legal for us to own, this is not an acceptable response. After listening to one of the victims of the Virginia Tech shooting, I am even more convinced that knowledge (and possibly even possession) of firearms in the minds and hands of the students, would have ended the carnage way before so many kids were shot.
BTW it is currently against FEDERAL LAW to have a firearm on school grounds. That being said, obviously those intent on shooting a lot of people with minimal resistance will be more successful in such an environment. Notice none of the shootings have happened in Nevada? It's because per capita they are amongst the best armed!!! Coincidence???-I think not!!!
-Oz
Posted By: Taliesin
Date: 2008-02-25 08:32:35
You do have a valid point, I was looking at it in view of the scale of resistance which my quoted authorities were envisioning. On the other hand, if the large military adapts it's strategy to urban combat, it becomes more able to deal with guerilla warfare. Winning in Iraq will require a military able to effectively handle guerilla tactics.
In an odd way, success in Iraq would produce an army capable of dealing with most levels of combat. The army that Donald Rumsfeld was criticized for is smaller lighter and faster in order to deal with urban combat. And Isreal has developed very effective urban combat forces. If either the US or Isreali forces ever decided to fully loosen all moral restraint ("We will succeed no matter what it takes"), they could devistate any guerilla force.
If you think about it, The US could take out any country fully and completely in short order if it did not show a great deal of restraint. We have built world destroying weapons that can potentially outlast any of our current governments. My worry is a power taking over, similarly to how Julius Caesar took power in the republic of Rome. There is no guarantee that a dictator would always be benign. Could you imagine our weapons being inherited by a second Caligula?
Posted By: Bill
Date: 2008-02-27 21:31:53
Devistate a singular guerilla force? Maybe. Autonomous militias and resistance groups peppered throughout one very large geographical contingent? Very doubtful. Such a plan, if it exists, in no way can concieve of any resistance at all if it wants to go through with it. Even with a melding of police and military exercises and cooperation - just a handful of dudes with good skills and very familiar with their territory and infrastructure would wreak havoc both strategically and psychologically on any coup or forceful occupation.
Posted By: Taliesin
Date: 2008-03-03 23:22:26
Yes, the guerillas could resist, but not wreak havoc. Very few guerilla wars are won by guerillas. They are an annoyance, but they do not overthrow. The American Revolution was one, Cuba was another. But mostly, the resistance only survives and succeeds by being helped from a powerful outside source. Iraq would be done if not for support from Iran. The American Revolution would have foundered without help from the French. The Vietcong had Russia. A self sustaining guerilla army rarely succeeds.
I'm not discussing a plan, just a flow of history. Look at the American landscape, socially. We are divided into so many groups. Some would side with a coup. Some would accept it if bribed with their pet program. Some would cooperate out of fear.
And one thing no previous dictatorship has had was our wealth of phsycological information on how to manipulate and distract the masses. If it is a plan, it's working. We're being convinced it's reasonable and it's with our democratic agreement. Protesters are a fringe opinion, paranoid conspiracy theorists. The discontented are potential terrorists. The people busy keeping up with the Jonses aren't going to pause to listen to crazy anarchist nutjobs, are they? It's possible it's all coincidence. Either way, the end result is the same. A vulnerability appears and is exploited.
For example, over the past 40 years, the seemingly powerful tobacco industry has been losing a well played game. We've learned how to systematically take down what is thought to be invulnerable and keep it down. And the ones who do it best work for lobbyists, or become politicians and power brokers. Keeping the populace armed is keeping a large hurdle in the path of the exploiters, but it isn't stopping them. It is only slowing them down.
Posted By: Maggie
Date: 2008-03-13 00:37:17
"Perhaps our founders were not as forward thinking as we have been led to believe."
-- It's not that the founders were not forward thinking. We can thank that traitor James Madison for the confusion of the wording in the second amendment. Madison was a Federalist who joined Jefferon's Anti-federalist Democratic-Republicans. But his loyalty was not to the people or to the establishment of a minimalist government. It was to those Federalists who wanted a strong central government -- and no Bill of Rights at all. So, if you ever need someone to blame for the lousy wording of the second amendment you can blame him.
Posted By: AH
Date: 2008-03-13 10:37:21
Insightful article. Bravo. Thanks.
Posted By: Buck
Date: 2009-07-02 01:47:49
The military is not supposed to fight it's own citizens, and that point seems to be overlooked here. Posse Comitatus means the military can not even act as police and has no authority over citizens.
The points about flamethrowers, Iraq and bombs debatable. Analysis by certain experts has shown that the military could not subdue the US population with conventional forces, because of the time involved, and the sheer numbers. This was somewhat demonstrated in Vietnam, and to the Soviets in Afghanistan. Guerrila tactics and traps and surprise situations involving initiative advantage play out more and more in protracted situations. Hunter becomes hunted, and the size of bombs matters less and less as an army fatigues mentally and physically covering gigantic territories trying to engage individuals in small scattered groups Weapons and even choppers and tanks are taken by ambush. The Indians took rifles from their persecuters, for example. Also, not every person in Iraq is fighting. They would not use nukes, and furthermore, most of the military would disobey and fight for their fellow countrymen.
The right shall not be infringed, and that means owning machine guns, stinger missiles, and even flamethrowers (lol) is the right of all citizens. The language is clear.
Posted By: AH
Date: 2009-07-28 10:27:50
You have stumbled on my favorite "stuck inside the box" pet peeve. "Supposed to" does not mean can't. Can't is things like I can't move objects with my mind. The military can and has fought its own populace. The police states of past and even present countries is an example. To say it will not happen here is to suppose America is somehow populated exclusively by the altruistic. Do we suddenly forget Waco, Texas? Whether one agrees with David Koresh or Janet Reno, this is one example where the US has waged a small battle on its own citizens in the name of law and won. And any outrage or controversy is moot. It is done, it was not prevented nor condemned. We have done similar actions since. And most of us watched in silence and indifference.
As for the flame throwers and stinger missles and machine guns. Yes, the language is clear. The Thompson sub-machine gun was legal to own during the Prohibition Era. Again, it matters not which side you agree with, what matters is that the government had a tougher time subduing criminals when the weapons were more evenly matched. If a citizen could afford a stinger missle they should be allowed to. You may feel comfortable in your box finding such an idea preposterous. I do not. The simple fact is that an armed populace not only is less succeptible to government influence, it is also protected from criminal action by its own armament as well. An armed populace needs less police protection. And as I citred in the next article, such protection is an illusion. Police do not prevent crime, they mop up the aftermath.
The 2nd Amendment is not for hunting, or sport shooting. It is to protect the people from the over-reaching power grasp of our government. The more people have your mentality the closer we come to being sheep in a pen, doing what the shepherd wishes, being slaughtered as the shepherd's appetite demands. As we become sheep, less and less will we resist. And as sheep we also fall more victim to the criminal element and with less fight in us, we ask for more government. It is a cycle where liberty is sacrificed, inch by inch.
The government does not need to subdue the entire population. It must first slowly cultivate a mentality like yours in the vast majority, which it has done more and more blatantly. After sufficient time, it only needs to subdue small pockets of resistence in the name of public safety, with the approval of the rest of the populace. Hitler did this. He placated the majority and the majority turned a blind eye to the sufferering of the few. He did this by being elected during a time of crisis and producing peace and restoring the national pride of the German people. He mastered the art of propoganda. His people cheered him not for his evil, but for the good things he did for them. The US populace is no different in its succeptibility to such actions. To say otherwise is to deny our humanity.
The only reason you find this unlikely is because you have accepted it as impossible, or highly improbable. You are sheep. If you don't want to be then question. Deny power to your officials. Fight every step of the way. Or you can bleat how the wolves can not come into your pasture because your pasture is a wolf-free zone.