The Right to Keep and Bear Arms

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.

Gun control is a messy enough issue. I will not pretend to cover every aspect. The court cases interpreting the Second Amendment are too few, and can be interpreted in too many ways. The statistics on crime rates and the effects of various laws also conflict. The dominant theme on crime and modern gun use is "figures don't lie, but liars sure can figure."

One issue actually can be pinned down. The meaning of the founding fathers in writing the first amendment is clear enough. The key is in understanding the period definition of "well regulated militia". The meanings of these words at that time are not much debated in academic circles. However, if they are not understood properly, the meaning of the Second Amendment becomes ambiguous.

The militia is simply all adult males capable of handling a weapon. These days, if women showed up, I suspect local militia leaders wouldn't dare complain. However, calling up the militia has become very rare in the days since the suffragettes made their stand.

"The militia" is not to be confused with "a select militia." A select militia is a group which receives pay, training, and tasks above and beyond what is expected of the general population. The National Guard is an example of a select militia.

A group is a "well regulated militia" by 18th Century language if they can march in tight formation, fire, and reload their muzzle loading weapons with efficiency and discipline. Given that muzzle loading muskets was state of the art, and that bayonet charge was often the decisive tactic before the Civil War, intense training was important in making the militia effective in combat. In the French and Indian War and the Revolution, the militia was expected to confront regulars. Remember that the victors write not only history, but the laws. Remember that the founding fathers were revolutionaries, not the establishment. Look again at the words.

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.

Using modern wording for "well regulated militia", the following would state the intent.

A population trained to effectively carry arms, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

A key point of the modern debate is whether an "individual" right or a "collective" right to bear arms was intended. A collective right to bear arms meant that the government could not disarm the people to the point it could not resist tyranny or invasion. The English Bill of Rights, which the colonists inherited, was written in response to tyrant kings and a military dictator. The Parliament was not willing to let William and Mary rule without a promise they would not disarm their subjects.

The initial wordings proposed by this Parliament more strongly suggested a collective right. The issue was balance of power between king and people. This was a very real issue at that time, and during the American Revolution. The final wording of the English Bill of Rights more suggested an individual right. An individual had a right to own a weapon. It should be noted, however, that granting the right to individuals also served the purpose of the community. If the king cannot disarm individuals, he would not be able to disarm communities. By granting an individual right to bear arms, Parliament was also protecting communities from being rendered helpless to confront a regular army or select militia loyal to the king.

Similarly, the Second Amendment can and should be read as protecting both collective and individual rights. "A well regulated militia, being necessary to the security of a free state" can only be read as an endorsement for a collective right to bear arms. "The right of the people to keep and bear arms shall not be infringed" is wording that speaks for an individual right. If the government no longer interprets the constitutional wording "The right of the people" as granting the people rights, other elements of the Bill of Rights are at risk.

Some would say the Second Amendment was intended to guarantee states the rights to raise armies. Advocates of this interpretation claims "the militia" means the National Guard. First, the National Guard is a select militia, not The Militia. Second, the National Guard is sustained by federal funds. If there is both a federal and state emergency, federal authority is trumps. If the Second Amendment was intended to apply only to the National Guard, the Second Amendment would forbid the Congress from disarming troops paid and equipped by the federal government, and owing primary allegiance to the federal government. This is a nonsense interpretation.

There still are state guard troops, paid for by the states, owing primary allegiance to the states. They are rare, but they do exist. It makes a little more sense to claim the Second Amendment exists to prevent Congress from restricting state guards. By this interpretation, the states would have the right to develop nuclear or chemical weapons. This is an interesting twist to the balance of power between state and federal governments, or is this balance of terror?

But if that is the meaning of the Second Amendment, why is such similar language, sometimes identical, sometimes written by the same founding fathers, found in state Bills of Rights? Originally, the federal Bill of Rights was not interpreted as restricting state governments. Only federal agencies were effected. Thus, for a right to truly exist, for an individual right to protect citizens from both state and federal governments, a right had to be part of both the state and federal constitutions. The Fourteenth Amendment, which includes, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United Steates," changed this. After the XIVth passed, the need for state Bills of Rights beame less, as the Federal Bill of Rights might be considered sufficient. Priori to the XIVth, however, some state constitutions contain arms protection that is clearly collective, some clearly individual, and in some cases the federal wording is duplicated. However, when you do find a Right to bear Arms (individual) or protections for a well-regulated militia (collective) in a state constitution, they are part of Bills of Rights. They are not enumerated with separations of powers.

If one finds such protections in a state constitution, if the words do not intend to give rights to the people, what is their meaning? Is the state forbidding itself from disbanding is own troops? The only meaningful interpretation is that "the militia" means the adult population capable of bearing arms, that "the militia" and "the people" are one and the same, excepting only those with a disability that prevents vigorous service. (Mind you, during the 18th Century, being female would have been considered such a disability.)

That is the easy part of the gun control question. The Revolutionary era United States was an armed society, and the Constitution reflects the problems confronted by that society and solutions adopted to these problems. An armed populace had won the last two wars, had won the people freedom from tyranny, and the Constitution was written to make sure future threats could be met in the same way.

The less easy part is figuring whether the solutions of that time are still appropriate today. Democracy has a long and fairly peaceable tradition. The need to regularly water the Tree of Liberty with the blood of patriots and tyrants is debatable. Nonviolence has become an effective alternative to armed revolution. The US is no longer staging an imperialistic expansion at the expense of the Native Americans. Weapons perfectly sufficient for hunting, sporting and civilian self defense purposes would no longer be appropriate when confronting a first line military formation. The state no longer calls up the entire male population of a town or county when confronted with an emergency. It relies upon specially trained, if often part time, troops. These troops generally use arms provided by the state and kept locked in the armory, rather than personal weapons purchased with private funds and kept at home. In short, things are very different.

The term 'militia' still means, legally, all male adults capable of handling a weapon. The term, however, is obsolete. It is absurdly rare for any level of government to call out the militia, or summon a posse. A governor who tried would sound somewhat silly. The government no longer trains the militia, once considered "necessary to the security of a free state." The government has come to rely upon select militia and regulars, once considered the bane of liberty.

I am not going to leap into the statistics throwing contest. I will not suggest what sort of gun control law would be best in a modern society, if gun control laws were constitutional. I am not going to conjecture on how badly the Tree of Liberty needs watering. Others are performing such tasks, and in doing so are generating more heat than light.

It seems proper, however, to insist on the Constitution. Those who do not approve of the right to keep and bear Arms should be proposing constitutional amendments, not incrementally assaulting the Bill of Rights. Until and unless an amendment passes, the right to keep and bear arms should not be infringed without a felony conviction under due process, a mental incapacity, a clear and present danger to others, or probable cause of criminal action or intent.