The Future Our Founding Fathers Did Not Expect- The Second Amendment Part I

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 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


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