According to the left, the 2nd Amendment grants the militia the right to keep and bear arms, the modern day equivalent of which is the National Guard, and thus argues that there is no individual right to own firearms, much less an unlimited one.
In contrast, the right argues that the militia is in fact referring to the people as a whole, drawing on quotes from our founding fathers to support their position.
As usual, both sides of the political isle are dead wrong.
First of all, we need some context. The 2nd Amendment is part of the Bill of Rights, which is a list of 10 Constitutional Amendments that were added all in one fell swoop in 1791, over three years after the US Constitution was ratified. In accordance with US Constitutional Law, they are part of the Constitution and carry the same weight as the original articles themselves. Remember that our Constitution is a "living document," and it can be changed through a strenuous process that requires the majority of the country to agree on the proposed changes. In this way, think of a Constitutional Amendment as a governmental hard fork.
Authored by James Madison, the Bill of Rights began life as the Virginia Declaration of Rights, which was Virginia's proto-constitution, and, later, was ratified as the first article of their official constitution in 1776. Virginia, along with other colonies at the time, felt that the US Constitution was too vague, and when it was ratified in 1788 it was generally understood that it would quickly be amended with specific rights guaranteed to the people.
Many in Congress, however, had no intention to amend it, and James Madison led the charge, eventually forcing them to concede to the states' demands. A big sticking point with the states was Article 1, Section 8; which granted the federal government the right to call forth the militia in time of war or civil unrest, arming it, and dictating its training doctrine, which was to be carried out by the states. While no one would even hear of a standing army, virtually everyone recognized the need for a "well regulated" militia, understanding that a bunch of farmers with muskets weren't about to successfully repel a professional army.
Still, though, they had extreme reservations about letting the federal government have so much control over an organized fighting force. What you have to understand is that they had just fought the Revolutionary War, and much of the fighting on both sides was between American militias, some loyal to the newly formed nation and some loyal to England. In that sense, the American Revolution was similar to the Civil War in that brother was fighting against brother, in contrast to the popular notion that it was a unified America fighting exclusively against the Redcoats. Needless to say, the word militia didn't give the states the warm fuzzies, which makes it ironic that the far right is so enamored with it today.
Thus, more than anything, the 2nd Amendment is the states' response to the federal government, regarding the militia, as it is outlined in Article 1, Section 8.
So what does it actually say in plain English? The 2nd Amendment reads:
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 confusion comes from the subordinate clause being placed before the main clause, as well as the archaic use of commas. Thus, the main clause (or the main idea) is, The right of the people to keep and bear arms shall not be infringed. The subordinate clause, referring to the militia, is simply a matter of clarification or justification.
As far as the definition of terms, that's easy enough, as well. The definition of militia, in a Constitutional sense, is clearly given in Article 1, and it clearly describes something along the lines of the National Guard (note that in recent years the National Guard has strayed a bit from their Constitutional standing, namely in terms of state vs. federal oversight, but that's another topic). The definition of "the people" is also clear; it simply means the citizens of the United States as a whole. The definition of "arms" is also clear; it means weapons, which included everything from bayonets to heavy artillery, rockets, and hand grenades (yes, those existed at that time).
The definition of "infringed" is where things get convoluted, but they shouldn't. The confusion on that account comes entirely from people trying to make the document say what they want it to say, verses what it really says in plain English. A synonym of infringe is to limit, so the 2nd Amendment could literally be faithfully rewritten to say, The right of the people to keep and bear arms shall be unlimited. Yea, I know...why would they do that, right?
The courts have tried to change the definition of the word by arguing that our founders meant that the right to keep and bear arms shouldn't be unduly limited, or something along those lines. But that's simply not what it says, and no matter how long you torture the data it will never say that. It says what it says in plain English, and it won't change unless you go back in time and rewrite all the dictionaries.
Logically, though, it makes complete sense. Our founders' intention with the 2nd Amendment was to ensure that the people could resist the militia if the federal government were to use it to oppress them. Therefore, they presumed that the people should have the same level of weaponry as the militia, if they were to successfully keep them in check. Otherwise, the federal government would simply have been able to limit which weapons they were allowed to keep at their disposal, thereby completely circumventing their ability to resist the militia. Keep in mind that King George had just done EXACTLY that; he had limited the colonists in terms of keeping and bearing arms, reserving that right exclusively for his loyalist militias.
So what the sates were saying to the federal government was this: We recognize the need for a well organized militia, as outlined in Article 1; HOWEVER, we the people reserve the right to stockpile and mobilize every weapon you do, so no funny business! And we're watching you...
But wait! What about the far right's contention that "the militia" and "the people" are the same thing???
This is a misunderstanding, due to various quotes from our founding fathers, which are taken out of context. For one thing, there was much debate over the militia at that time, in terms of who would be involved and how much power the federal government would have in its oversight. It was understood from the beginning that a militia would be employed rather than a standing army, but who would be required to participate, and to what extent, was up for debate.
For example, George Madison said before the Virginia ratifying convention in 1788, No man has a greater regard for the military gentlemen than I have. I admire their intrepidity, perseverance, and valour. But when once a standing army is established, in any country, the people lose their liberty.
Two days later, on the same subject, he said, I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government all ranks of people are subject to militia duty.
This is the quote that gets taken out of context to make "the people" synonymous with "the militia" in the 2nd Amendment, but in reality it predates the 2nd Amendment by three years. Furthermore, the quote is in regards to ensuring that the militia is comprised of all classes. Madison clearly didn't mean that every farmer with a pitchfork was to be part of the militia in a literal sense, but rather that the people as a whole, meaning all classes, should be required to serve. This was about preventing the elite from shirking their duty, not about Joe Sixpack being part of some phantom "unorganized militia." That's why he excluded public officers. He wasn't suggesting that they weren't citizens, or that they didn't have the right to keep and bear arms along with everyone else. He was saying that everyone should be compelled to serve in the militia who was not already serving in some parallel capacity that negated their being candidates for militia duty. Obviously, right!
We should also remind ourselves that random quotes from the founding fathers are NOT law, whereas the Constitution is. They disagreed with one another vehemently, so there's nothing to be gained by trying to rewrite the document according to any given one of them. We should simply take the document at literal face value, just as we do with all other laws, being that the Constitution is in fact law, in contrast to other constitutions, which may or may not be legally binding according to the laws of the nation in question. Moreover, Constitutional Law trumps all other law, federal, state, and local, whether it be statutory or case.
In review, the militia, according to Article 1, Section 8 of the US Constitution, is:
- An organized fighting force.
- Regulated and mobilized by the federal government, but under the command of state appointed officers.
- Armed exclusively by the federal government.
Considering these characteristics, the people CANNOT be the militia. Moreover, why would the people need to be given the right to bear arms if they were to be armed directly by the federal government? And for final nail in the coffin, was there any time in US history when the federal government was handing out weapons to ordinary citizens? I'll take an M249 with a side of M4 to go please... No.
In a nutshell, this was supposed to be how things would work:
- There was to be no standing army, but rather a militia in its place.
- The militia was to be commanded by state appointed officers to ensure loyalty to the states, rather than to the federal government, but its training and armament was to be standardized on a federal level, to ensure it could be mobilized in time of war as a coherent, well regulated fighting force that was on par with a standing army in terms of organization and discipline. In other words, the militia was a decentralized standing army.
- The people as a whole would reserve the unlimited right to keep and bear the same arms as the militia, thereby preventing the militia from being abused by the federal government. The militia may have been better trained and organized than the people, but they were also hopelessly outnumbered by them.
This plan, however, was quickly abandoned, but the law was never changed. The federal government simply formed a standing army, which was and is strictly prohibited. To add insult to injury, they then transformed the state militias into the National Guard, placing them under the command of federal officers (which is also prohibited).
So is the 2nd Amendment outdated? It certainly looks that way, but I would argue that it's more a matter of the rule of law being dead in this country, and for a good long while. Which is why YOU should care about the 2nd Amendment, even if you hate guns and hold the personal opinion that no one should be allowed to own them. A departure from the rule of law is far more dangerous than any gun ever could be. A breakdown in the rule of law is what leads to totalitarian states, oppression, tyranny, and genocide.
But what about weapons of mass destruction? That's an excellent point! Obviously the 2nd Amendment is outdated, but I would argue that it could still work just as well today as it did in the 18th century, with slight modification (through a Constitutional Convention of the States mind you, as is required by law).
All that is needed is to ratify an amendment stating that nuclear, chemical, and biological weapons are to be outlawed, with the exception of a limited number of defensive warheads to be held by the Air National Guard. This way we don't have to worry about some eccentric billionaire stockpiling his own nukes, but at the same time we maintain a decentralized approach to our national defense, ensuring that the federal government isn't left holding all the cards. While a militia might be convinced to fire on civilians, they would certainly never nuke their own homes, whereas some despot in Washington just might, if he were backed into a corner. Think District 13 in the Hunger Games...
As a libertarian, I'm all for bringing the Constitution into the 21st century. Not to change it, mind you, but to give it its teeth again and reclaim the individual liberties we have lost over the last two hundred years. Our founders were geniuses, and anyone on this site should be able to appreciate how far ahead of their time they were. We all talk about decentralized government as if it's something brand new, but these guys had it figured out while the rest of the world still couldn't even imagine living without a monarchy.
In closing, I will let Penn and Teller have the last words:
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