harmonicminer

Parsing the Second Amendment

It’s been about a month since the U.S. Supreme Court rendered its decision in McDonald vs. Chicago, a successful challenge to the city’s handgun ban. It was decided on the basis that the 14th Amendment extends the prohibitions of the Bill of Rights to state governments, and thus the Second Amendment applies.

So let’s look at the Second 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.”

One gun-hater argument is that this does not guarantee an individual right “to keep and bear Arms,” but is some sort of group right that applies only to members of state militias.

But “people” clearly means individuals in the Fourth Amendment, which stars with “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

Further, it’s pretty clear that the Founders supported private ownership of weapons, not just of muskets, but of entire ships laden with cannons.

That’s because the Constitution gives Congress exclusive power to “grant Letters of Marque”, that is, authorization for a private party to engage in piracy on the high seas against the nation’s enemies.

(Beginning in 1856, many civilized nations signed a treaty renouncing letters of marque, but the United States has not, although it’s been a long time since Congress issued one.)

Next, what did they mean by “militia”? From what I can gather, the general belief at the time was that the state militias would be America’s primary military force, mobilizing against invasions, uprisings or Indian attacks. Thomas Jefferson, for one, was opposed to a standing army. His fear was that if you had all these soldiers drawing pay, you’d be tempted to use them, and his agrarian republic would turn into a rapacious empire.

Even so, Jefferson did not abolish the standing army when he became president; indeed, he founded West Point in 1802 to train officers for the standing army.

We do know what the Founding Fathers meant by “militia,” for there is the federal Militia Act of 1792, which defines the militia as “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years . . . .”

It was not some small group of volunteers, but just about every capable citizen of the day. Gun ownership was a federal mandate, not an option.

“Every citizen . . . shall . . . provide himself with a good musket or firelock . . . or with a good rifle,” along with powder, shot, knapsack and the like. Further, the guns and related gear could not be seized to satisfy unpaid debt or taxes.

But what did “well-regulated” mean? That the militia was supposed to have a lot of rules, as we might understand it today? That inspired me to delve into the English major’s bible, the Oxford English Dictionary, which attempts to track every word in every sense from its first written appearance to the present.

(I’ve long hoped to be rich enough to buy the full 20-volume second edition issued in 1989, but I’ve had to settle for the tiny-print version of the first edition of 1933, issued as a Book-of-the-Month Club premium.)

It provides a relevant definition for “regulated”, “Of troops: properly disciplined” with a 1690 citation and a note that is a rare usage, long obsolete by 1933. But that appears to be what it meant when the Second Amendment was proposed in 1789, that militiamen were supposed to be proficient with firearms, since that was a big part of their discipline.

So you can argue that the Second Amendment is an archaic relic that ought to be repealed, or that it means we should restore regular drills on the village green so that we’ll have a “well-regulated militia.” But there’s no reasonable argument that the Founders wanted the government to have the power to outlaw private gun ownership, especially not when one of the nation’s first laws made it a requirement.

I would add one other point, a fairly important one.

It is the SECOND Amendment, just following free speech, freedom of religion, freedom of the press, freedom to assemble, and the like.

It seems to have been fairly important to the founders, to get such pride of place.

And the Supreme Court has long ago decided that the Bill of Rights applies to state and local governments as well, though it seems to need to reaffirm that principle from time to time.