Our duty to the constitution is to improve it for our posterity, not to preserve it in the honor of our ancestors. One way that we can improve it is to recognize the Second Amendment for the dangerous anachronism that it is and repeal it altogether.
In order to understand just how dangerous the Second Amendment really is, one has to understand the background under which it, and the Bill of Rights more generally, was formed. As the Bill of Rights contains many of the rights that we as Americans have grown to regard as crystallizations of natural rights, as the very essence of the liberalism upon which our nation was founded, there is a tendency to regard it as sacred and inviolable. There is good reason for this. Where some of the rights are concerned I, and I believe all good liberals, would blanch at the suggestion that they can be restricted by further amendment, let alone repealed. Indeed, I have argued that in our system of government natural rights precede popular sovereignty and popular sovereignty is itself derived from the doctrine of natural rights. As such there are some rights which should not be subject to restriction regardless of the popular will.
That point allowed, the question is whether every part of the Bill of Rights ought to be regarded as inviolable and sacrosanct. In order to answer that question, I submit that it is first necessary to look at the Bill in historical context and look at what it really was.
The first thing that should be noted as that the Bill was presented not as an integral part of the Constitution, but as a series of amendments to it. Why was this? Was it because these rights were somehow regarded as less important than, say, habeus corpus or guarantees against ex post facto laws or bills of attainder which all appear in the body of the constitution itself?
No. Or at least not according to some of those, including Madison, the Bill's principal drafter, who initially opposed the inclusion of a Bill of Rights in the Constitution. Their arguments were that the nature of the federal system they were creating was such that it would not be able to impose injustices such as those imagined by the foes of the constitution, in part because the ultimate guarantors of the rights of the people would be the governments of the individual states of which the people were citizens.
One of the reasons that this was so, argued the Federalists, who supported adoption of the Constitution, was that the preponderance of military power would lay with the states and as such the federal government would not be able to impose a tyrannical form of government on any section of the country against the will of the people, who would be militarily equipped and prepared to prevent such an imposition.
In the Federalist 46, Madison made this rationale explicit:
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the Fœderal Government; still it would not be going too far to say, that the State Governments, with the People on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by Governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
Nor was Madison alone in making this argument. Alexander Hamilton, the other principal proponent of the new Constitution made a similar argument in the Federalist 29:
if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.
Ultimately, arguments such as these failed to persuade the anti-Federalists who were suspicious of a central government with too much power. In order to assuage their fears, and to be sure that such an enumeration of rights would not be regarded as exclusive Madison took it upon himself to draft a Bill of Rights. When he did so, his goals were two-fold. One was to enumerate what he regarded as the natural rights of citizens. The other was to fulfill the political purpose of appeasing the anti-Federalists. One of the ways in which he did the latter was to provide a guarantee that states and locales would enjoy the ability to resist federal power militarily. He did this with the following 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.
What is important to note here is that this was meant as a guarantee of rough military parity between the federal government and any state or large area that felt that federal power was encroaching on their rights.
The teabaggers and militia types have it right.
It is about the right to revolution.
"Arms" in this context does not mean "hunting rifles."
It does not mean "firearms".
It means exactly what it says: "Arms", that is to say war potential.
The Second Amendment was designed to guarantee the citizenry access to war potential of equal or even greater power than that possessed by the federal government. In an age when cannon and muskets were the extent of war potential, one might find this perfectly reasonable. In an age where war potential includes mini-guns, armored personnel carriers, tanks, jet fighter-bombers, VX gas, and, even if only as a deterrent, nuclear weapons, it is sheer madness. In other words, the idea "the right of the people to keep and bear Arms, shall not be infringed" is now more of a threat to the natural rights of the people than a guarantee thereof.
The question that we, as those who live under this charter, have to ask ourselves is simply this: do we feel that our natural rights are more menaced by a heavily armed federal government or by the prospect of our fellow citizens, including such good folks as those in Hutaree or the Michigan Militia, having the military potential to resist federal authority, and, incidentally, do whatever else they might wish with that kind of firepower?
The Second Amendment is a dangerous anachronism. It ought to be repealed. It was meant as a guarantee of state power against the federal government. It has more in common with the Eleventh Amendment than the First.
We are the citizens of the free republic based on liberalism and the philosophy of natural rights. Our charge is to deliver the same to our posterity. How we choose to do it is our own decision.
Repealing the Second Amendment would not be a betrayal of our charge, but rather a step toward fulfilling it.
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