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The Second Amendment: A Historical Conundrum
Of the ten Amendments to the Constitution that make up the Bill of Rights, two have been the most controversial and misunderstood--the 10th Amendment, which I have already covered in a previous hub; and the 2nd Amendment. In fact, the latter has generated the most comment and debate until fairly recently, though perhaps "debate" is too tame a word for the vitriol directed against anyone who dares to frame the discussion in any perspective that differs from the opinion of gun rights advocates. This study alone will probably draw the fire of many NRA members, but it seems the debate is in need of a historical perspective, given by a historian. A fair critique of the 2nd Amendment from this context probably will not settle the question once and for all, but the attempt must be made.
First, it is necessary, in order to promote understanding of the issue, to quote the text of the 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." This is the version, with punctuation included, that Congress adopted, and it shows perfectly how the subsequent confusion has occurred. No other amendment is phrased in language quite as obscure as this. It seems to incorporate four separate fractions thrown together to form a sentence; any high school English teacher would have given this sentence an "F," and yet this is what the First Congress gave historians and legal scholars to ponder. A proper historical analysis of the wording requires us to look at the particular statements that are made, and at first glance, there would seem to be two.
Let's look at the most familiar first. "[T]he right of the people to keep and bear arms shall not be infringed." (The comma has been removed to improve the meaning.) Despite the use of the plural "people," the framers were obviously thinking of individual rights--the concept of the right of individuals to bear arms has its origins in English Common Law (though the English Bill of Rights limits the right to Protestants). Most of the original states include "gun rights" amendments in their bills of rights; some, such as Kentucky's, base the right specifically on the need for self-defence and defense of the state, while others include only the common defense, but the focus on individual rights is fairly clear in all cases. Other items in the amendment, however, are not so clear. For example, what did the author (probably James Madison) mean by "arms," or "keep and bear" (did he mean ownership, or did he include the right to use firearms as well?), or the term "infringed" for that matter? The meaning of the sentence, I think, turns on this last word. Dictionary.com defines "infringe" as "to violate or transgress," or ""to encroach or trespass," two definitions which have differing implications based on their tone; "violation" has a stronger tone than "encroachment," and so has a stronger meaning. The meanings of all of these terms is confusing, and their interpretations have changed over the years. Obviously, there is plenty of room for debate and controversy based on this sentence alone.
But there is a second proviso, and this one is more controversial than the other. "A well regulated Militia, being necessary to the security of a free State." The trouble here is the argument of gun control advocates is that the right to bear arms is predicated, or based, on the maintenance of a "well-regulated Militia," meaning that the right is no longer necessary because militias have largely been supplanted by "professional" soldiers. But let's consider something here: The framers of the Constitution had vivid memories of being oppressed by the British army and navy in the years leading up to the Revolution; they considered a standing army a real threat to liberty, andconceived of a "citizens' militia" as the best means of both defending the country and preserving liberty. Madison included the above language in the Second Amendment to remind Congress and the nation of these concerns; he phrased it in terms that obscure this intent for the modern reader.
To put it in modern terms, then, here is a re-wording of the amendment: "Because a well-regulated militia is necessary to the security of a free state, the right of citizens to keep and bear arms shall be protected." Besides the retaining of some of the confusing terms, the meaning of this rephrasing seems pretty clear. It also reverses the argument of gun-control advocates--under this construction, the maintenance of the militia system is based on the right to bear arms; but more importantly, the maintenance of a free society is based on the existence of the citizen militia. It places the priority right where Madison and the other founders intended it, on avoiding the establishment of a standing army, the real threat to a free society. Events of the last 200 years since the founding of the modern military testify to this truth--that at no time have our liberties been more at risk than when the military has been mobilized for action. Examples are numerous--the Civil War, World Wars I and II, the Cold War, and the current conflicts in Afghanistan and Iraq. All of the citizen's liberties are curtailed during times of perceived national emergency, and this has been especially true since the establishment of a permanent standing army after WWII, and as our wars have come increasingly to involve the defense of interests other than our own.
The only right that has remained essentially untouched, in fact, is the right to bear arms. The Supreme Court, that ultimateinterpreter of the Constitution, has rarely examined the Second Amendment, and no law has ever been struck down on its account. The only case involving a serious test of the Second Amendment has been U.S. v. Miller(1939), in which the Court affirmed the right to bear arms, but tied it to the fitness of the firearms for use in a citizen militia; this ruling hardly settled matters. In 2008, in District of Columbia v. Heller, the Court upheld a D.C. Circuit Court of Appeals ruling when it affirmed the individual right to bear arms, but only in federal enclaves like the capital; McDonald v. Chicago, decided last June (2010), extended its earlier ruling to the states by applying the Due Process Clause of the Fourteenth Amendment. The case seems to rest on this ruling, though there is still some debate concerning other regulations.
How to reconcile the existence of a standing army with the maintenance of a society in which liberty is protected in all its forms is the true historical conundrum, one that James Madison never answered and current historians have yet to.