Well, after the latest mass shooting, the call for gun control has once again sprung to life. As those of us who see in right-wing blogs and in Facebook comments all over the place, talking about how “the right to bear arms” will not be infringed, and how it’s our constitutional right to have every killing machine under the sun from a .22 pistol to a rocket launcher.
This has come from a large misunderstanding about what the Second Amendment was meant to do. This page will discuss what the Second Amendment was intended for, what it wasn’t intended for, and what it’s now intended to do now that the Roberts’ court has reinterpreted the Amendment.
This is a long read, but please take the time to read it. This information is very important to counter the lies from the anti-gun control crowd. I’m not breaking this down into multiple diaries, so if you need to take a break at some point, do so, but then come back and read it. I cannot stress enough how much of this information is needed to change the debate on the Second Amendment.
The Intention of the Second Amendment, its Constitutional Counterparts, and the Beginning of the Formation of the Militias
A lot of the chatter on the right about firearms is that the purpose of the Second Amendment was meant to allow private citizens to arm themselves so they can rise up against the government. This is not only wrong, but it is ridiculous to think that any government would allow for a treasonous uprising to take place.
The beginning of the phrase, “A well-regulated militia, being necessary to the security of a free state”, has even the most die-hard “They’re commin’ for mer gunz” types admit that the Second Amendment was at least somewhat about the formation of militias.
So what was the purpose of the militia and who was a part of it? The answer to those questions lies in Article I, Section 8 of the US Constitution, and also the Militia Act of 1792. Article I, Section 8 of the US Constitution says that the role of the militia is to:
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions
The next line down shows who runs the militias (spoiler alert: It’s the states-with a little influence from the federal government):
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress
There were two major reasons why this section of the Constitution was created. The first is
Shays’ Rebellion.
Shays’ Rebellion started in August of 1786, while the United States was still a confederate government. Shays’ Rebellion was more or less Occupy Wall Street with guns. When the state was under a severe recession and facing harsh laws, the Shays' stopped courts from holding tax and foreclosure proceedings, freed prisoners from debtor prisons, and made life hell for Massachusetts Governor Bowdoin. The Governor was forced to draw up a privately-funded militia to suppress the rebellion, and didn’t finish the job until June of the next year.
Shays’ Rebellion is considered to be one of the strongest reasons why the confederate government was forced to change into the government it is today.
The other reason was to prevent slave uprisings in the South.
This knowledge is important for two reasons:
1. It shows the absolute stupidity of the argument that the Second Amendment was created so private citizens can rise up against the government (which if you’re making that argument, you’re talking about killing soldiers. As an Army vet, let me be the first to tell you to go fuck yourself for making such a claim).
2. It also shows the stupidity of the talking point used by the left that says, “But they had muskets back then, not assault weapons!” Not only was this a failed talking point from the start (you don’t lose constitutional rights because of technology), but it cedes the false argument that the Second Amendment was meant to apply to firearm owners whom used their weapons outside of service in the militia. I've seen many intelligent people make that argument and it frustrates me to no end.
And if someone is still making the idiotic claim that the Second Amendment was intended for private citizens to rise up on the government, introduce them to Article I, Section 9 of the Constitution, which says that habeas corpus can be denied citizens during a time of rebellion.
Without habeas corpus, you have no rights! There’s no right to free speech, no right to bear arms, no right to a jury trial. Just the right to go directly to jail without passing go or collecting $200.
The founders did not want the government they created to be overthrown.
To get to who the militia was composed of, we look to The Militia Act of 1792:
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That 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 (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.
Every able-bodied white male between the ages of 18-44, with the exception of certain government jobs (like being a soldier in the regular army) was required to serve in the militia. The military was similar to the Swiss military of today; a very large reserve component made up of just about every male of military age, and a very small regular army component. The people wanted this because
large, standing armies were considered tyrannical and associated with the British Crown. While nowadays military service is largely associated with valor and bravery, in the 18th century they were considered an oppressive force. The militia was meant to counter this by being a deterrent force to defend the states from the federal government, and to make sure that civilian uprisings were quelled quickly.
You also had to buy your own rifle, so service in the militia not only got you the “right” to have a firearm, but it was a requirement; something that we wouldn’t be compelled to do today.
But St Jimmy, doesn’t that mean that the Second Amendment was made to resist the federal government?
Yes and no. It was meant as a way for STATES to have the ability to resist a tyrannical federal government, not private citizens. Think of it as part of the checks-and-balances system of our government. The militia could be called up by the federal and state governments to squash civilian rebellions, but the militia could also be used by the state should the day come that the president decides he’s going to wipe his ass with the Constitution and use the federal army to enact martial law and/or abolish any state government.
And now onto the meat and potatoes portion of the Amendment that’s always under fierce debate:
“the right of the people to keep and bear arms, shall not be infringed.”
So, what does this phrase mean? Well, according to the founders, this was also referring to service in the militia.
In the notes on the drafting of the Second Amendment (cited at link above), the founders had one serious point of debate that they spent many days on: Should those with religious objections be forced to bear arms? To quote:
This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures ith [sic] respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishment of an effective militia to the eastward.
Debate about forcing those with religious objections from, “bearing arms” wasn’t about forcing religious people to buy their own private firearms for their own purposes. This is clearly about forcing religious people into service of a state militia.
This debate went on for quite some time. While it wouldn’t seem like a big deal now, Quakers and other pacifist religions were high in number in places like Pennsylvania. There was a fear that entire town populations would be left without a militia due to pacifist faiths.
Eventually the phrase, "But no person religiously scrupulous shall be compelled to bear arms" was removed from the final drafts of the Amendment.
The only time the owning of firearms for use outside of a militia was implied as a right was New Hampshire’s proposed Amendment which in part read:
”Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”
There’s no record that that phrase was never taken into consideration during the debate, and it didn’t become a part of our Second Amendment.
It’s also important to note that of the state constitutions at the time, Pennsylvania was the only one that said that it was a right to keep firearms for personal use, saying:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
Pennsylvania’s Constitution was enacted in 1790, one year before the Bill of Rights in our federal Constitution. It’s unlikely that if the founders intended for there to be a federal right to own firearms outside of the service of a militia that the phrase, “for the defense of themselves” wouldn’t have been included.
A common argument on the right is that under current statute, every able-bodied male from 18-44 is currently in what’s known as the "unorganized militia”.Today, this is true, but in the time of our founders, there was no unorganized militia, so that argument doesn’t apply here. It’s a silly argument anyway, because if you’re making the claim that being in the unorganized militia gives you the right to own a firearm, you’re saying that the same right doesn’t apply to the elderly, women, or those not considered “able-bodied”.
After Heller
The SCOTUS case DC v. Heller was the first Supreme Court case in US History that struck down any restrictions on firearms, and formally declared that the right to bear arms didn’t apply merely to militias. The majority opinion, written by Justice Scalia, admits that the founders only mentioned militia service in drafting the Second Amendment, but says that because the phrase, “bear arms” was used in other documents, the right to bear arms also applies to personal use for self-defense. McDonald v. Chicago made this right apply to state law as well.
So what does this mean? Well, it simply means that the government can’t force the average citizen to not be able to own firearms (in this case, pistols) that could reasonably be used for lawful purposes (in this case, self-defense). Under the ruling, several firearms laws (and the ability to enact them) stayed in place, such as:
1. The continuation of weapons banned or restricted under federal law (such as machine guns or short-barrel shotguns)
2. Certain restrictions on carrying
3. Keeping firearms out of the hands of felons or the mentally ill
4. Restrictions on where guns can be brought (such as schools or government buildings)
5. Laws regulating the production and sales of firearms
6. Limitations on weapons declared dangerous and unusual
7. Restrictions on military-grade weapons
This means that it’s still within the bounds of the Constitution to enhance background checks, pass laws requiring mental screenings before being allowed to own a firearm, keep or expand “gun-free zones”, and allow weapons to be removed from people to prevent a violent crime (such as people under restraining orders or who have been convicted of domestic abuse).
What About Assault Weapons or Bans on Magazine Capacity?
Assuming that such a law could get through Congress (impossible under the current one), the question of whether or not such a law would be overturned by SCOTUS is one that’s hard to answer, and has been hotly debated by constitutional scholars on both sides of the argument. The Supreme Court has refused to take on a single case involving the Second Amendment since McDonald, and they seem very reluctant to do so again. They even turned down a case that was almost exactly like Heller. Even when circuit courts issue conflicting opinions on laws like carrying in public, the Supreme Court has declined to hear them (typically, the Supreme Court takes cases when federal circuit courts disagree on a constitutional issue). As of right now, the Supreme Court just doesn’t want to take any cases involving the Second Amendment, so it’s entirely possible that a ban on assault weapons (and yes, I’m calling them that, click the link if you don’t like it) wouldn’t even be heard by the Supreme Court. Justice Scalia was extremely tight-lipped about whether or not a ban on assault weapons would be considered constitutional.
However, if it was heard by the Supreme Court, I honestly don’t know how they would rule, even with the court being as conservative as it is. Gun manufacturers would be none too thrilled with such a law, and our current court loves to side with corporations on just about everything. But there’s also some things they would need to consider:
- Would such weapons be considered unusual and dangerous? These weapons are common as dirt, but also the preferred weapons of mass shooters. The court would have to weigh both the danger and commonality of such weapons.
- Are assault weapons and high-capacity magazines commonly used for self-defense?
- Do assault weapons resemble military weapons too much to be considered suitable for civilian use?
- Do such weapons present a threat to national security or the public interest?
- Has such a ban (given enough time) contributed to a decline in mass shootings? What about crime overall?
People could spend all day making arguments on both sides of those issues, and should it come before the Supreme Court, it would be up to the lawyers on both sides to give the most convincing argument.