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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” (2nd Amendment to the Constitution of the United States of America).

Gun control is and always has been a hot topic in modern American politics. Gun control activists tend to focus on pragmatic and utilitarian arguments, whereas gun rights activists tend to emphasize their Constitutional rights. I believe that gun control activists can benefit their case by doing a better job of engaging the Constitutional issues. I will offer two different interpretations of the Second Amendment, with comments on how these interpretations affect the gun control debate.

Interpretation #1

In the 18th century, when the U.S. Constitution was written, the United States did not have a well-funded standing army. We did not have professional soldiers and a large federal budget for bomber aircraft, tanks, artillery, assault rifles, etc. Instead, there was a part-time militia, in which, if there was a war, ordinary men would go to their barns, grab their muskets, and go off to war. The most similar modern day arrangement is the National Guard, if you had to bring your own weapons with you when you went off to fight in the National Guard.

There is also a deeper, more ancient dynamic at play. The Founders of the United States were deeply educated in classical political philosophy. In some ancient republics, participation in political life was tied to being an officer in the army. Only the upper classes were allowed to bear arms. Those who were allowed to bear arms could be officers in the army, because they could supply the necessary armaments. Also, only the upper classes were allowed to participate in political life. Thus, the right to bear arms was causally tied to the right to participate in political life in the republic.1

These concerns that are grounded in both classical political philosophy and 18th century practical reality lead to two practical principles. First, owning weapons was directly related to serving in the military and maintaining “a well regulated Militia.” An armed citizenry was necessary for national defense. Second, serving in the military was related to participation in political life. This second consideration continued in American political tradition, in principle if not in actual practice, in the fact that being registered for the draft was related to the right to vote. In fact, one of the arguments against women’s suffrage in the early 20th century was that if women had the right to vote, they would be expected to register for the draft, because of the traditional connection between registration for the military draft and the right to vote.2

Now, if this interpretation of the Second Amendment is correct, what are the implications for gun control in the 21st century? In short, the implications are that the Second Amendment is obsolete, because the reasons Americans needed the right to bear arms in the 18th century no longer apply. The United States has the largest, best funded, best equipped army in the world, and they no longer allow, let alone require, recruits to bring their own weapons with them when they go off to war. Even the National Guard does not need or want its members to supply their own weapons. Today, the connection between an armed citizenry and national defense no longer exists.

The connection between military service and participation in political life has also been severed. Whatever legal connection may have existed between registration for the draft and the right to vote in the 18th or 19th century, such a connection certainly does not exist today and has not existed for a long time.

If this interpretation is correct, and the reasons I have given for why Americans needed the right to bear arms in the late 18th century are the true reasons, then clearly those reasons no longer apply and the Second Amendment is obsolete. If that is the case, then the Second Amendment should be either nullified by the passing of another Amendment to the Constitution or reinterpreted by the Supreme Court so that it is no longer relevant to modern-day gun control legislation. Gun control legislation can then be crafted on a pragmatic and utilitarian basis.

Interpretation #2

According to another interpretation, The first 10 amendments to the Constitution, or the Bill of Rights, prescribe rights of Americans that must be upheld and never infringed by the government. This idea goes back to the idea of natural law and natural right, in that certain rights of man are “inalienable” and “endowed by their Creator”. At the most basic level, these rights include “life, liberty, and the pursuit of happiness” (Declaration of Independence). The government of a nation does not have the right to infringe these natural rights of man, because these rights are given to men by a power higher than any government, not by positive law. The rights outlined in the Bill of Rights and elsewhere in the Constitution are considered to be extensions of these natural rights, which are based on natural law, which is based on a natural lawgiver, namely God.

Before we get ahead of ourselves, no, the argument is not that the right to bear arms is necessarily an unalienable right given by God himself and that no government has the right to take away that right. Rather, the idea is that the Second Amendment gives Americans the power to defend themselves in case the government surpasses its legitimate authority and starts infringing upon other natural rights and Constitutional rights. The government does not have the right to infringe on those natural rights and Constitutional rights, because natural law, the Declaration of Independence, and the Constitution are higher authorities than the government. If the government exercises power that exceeds the limits of its legitimate authority, as given by those higher authorities, then the citizens have the right to exercise power of their own to defend themselves from the tyrannical government and, if necessary, to overthrow it.

This is why the Second Amendment is given pride of place, second only after freedom of speech in the list of guaranteed rights. The right to bear arms is guaranteed so that Americans have the power to protect their other rights. For example, in the 18th century, if the army wanted to quarter troops in a citizen’s house, and the citizen did not want the troops to stay in their house (3rd Amendment), then the citizen could say, “No!” and defend his house with his musket and any other weapons he had.

This raises the question of the effectiveness of defending one’s house when the army wants to quarter troops in that house. What if there were five soldiers, all armed, who wanted to stay in your house, and you only had yourself and one teenage son, both armed, to defend your house? Wouldn’t it be futile to defend your property, as two poorly armed civilians against five well armed and trained soldiers? Not necessarily. To effectively defend one’s property and rights in such a situation, one does not necessarily have to be able to overpower one’s opponent. Standing on principle gives one an advantage. If a civilian and his son show some backbone and stand up to defend their property and their Constitutional rights against five soldiers, some shots might be fired, but the fact that they are standing up and fighting will likely cause the soldiers to back down, for a couple of reasons. First, the soldiers and their commanding officer know they are doing something wrong by acting unconstitutionally. Second, if the soldiers were to massacre the civilians, word would get out and there would be an uprising. People would protest in the streets. People would demand accountability from the government. A superior force is not required for civilians to stand up to the government and effect change. A principled stand, involving some measure of force, can be quite effective.

If this interpretation is correct, is the Second Amendment still relevant today? In theory, yes. Those who would agree with what I have written so far on this interpretation would probably believe that the government in the 21st century has infringed upon Americans’ natural rights and Constitutional rights quite a bit. However, the government has infringed upon our rights in ways that are difficult for the average Joe to counteract using physical weapons, regardless of how many guns he has in his basement. If you own guns for civil defense, ask yourself: Do you sincerely feel less vulnerable to tyranny because you own guns? Or are you plagued by a sickening awareness that the government can tyrannize you using more subtle, intangible methods against which you cannot defend yourself with physical weapons?

Assessment

Which interpretation is correct? I do not know. But this at least is a conversation we should be having. Gun control advocates tend to focus only on pragmatic and utilitarian arguments, comparisons with other countries, and emotional appeals in the wake of mass shootings. They typically do not touch the Constitutional issue, and that is a mistake. To make a convincing case in a country that has a Constitution (whether they like it or not), gun control advocates need to make a case for Interpretation #1 or something like it. However, I never hear a gun control advocate making a case for Interpretation #1. Instead, they say something like, “I don’t think the Second Amendment covers assault rifles.” That is an interesting position. Why do you believe that? Would you like to make an argument for that position? When we set the Second Amendment in its historical and philosophical context, whether we take Interpretation #1 or #2, assault rifles are exactly the kind of weapon that the amendment does cover. That is the whole point. The amendment is about combat, not target shooting. The question is whether the amendment is promoting national defense or civil defense. Is it providing for the equipment and armament of a proto-military for the sake of defending the nation against foreign enemies, or is it providing for the defense of civilians against a tyrannical government? That is the question. In either case, yes, it is definitely talking about assault rifles.

If Interpretation #1 is correct, then the Second Amendment is an irrelevant relic of a bygone era, and it can be deleted or ignored without consequence in the 21st century. If Interpretation #2 is correct, then the Second Amendment is something far more radical than anyone wants to talk about in this day and age. According to Interpretation #2, the Second Amendment is a holdover from the part of social contract theory in which the citizenry have a natural right to violently overthrow a government that violates the social contract. That’s a little embarrassing to talk about in polite company. Talk like that might get you canceled, or worse. Yet, nevertheless, that idea is a part of our national heritage.

My goal here is not to give the one right answer. My goal is to analyze the Second Amendment from two different points of view, and invite people to engage in discussion about the Constitutional issues that are involved in gun control. Ignoring the Constitutional issues in the gun control debate only invites animosity and divisiveness. We have to engage this issue if there is to be any mutual understanding.

Notes

1 I got the idea in this paragraph from reading one of the early chapters in Leo Strauss’ History of Political Philosophy. Sadly, I do not remember which chapter, because I read the whole book cover to cover several years ago, and sadly, I am too lazy to go back and look it up. My apologies to real historians and academics, who no doubt will be frustrated with my lack of precision in historical details and my lack of citation of sources, and who may perhaps dismiss my ideas because of this intellectual laziness.

2 Again, my apologies to my readers who expect me to cite my sources. I heard this on a podcast. That is my source.

3 thoughts on “Second Amendment”

  1. I reserve the right to defend my person, family and home from common intruders to the best of my legal and Constitutional ability. And I practise regularly, so I am not just a person with a gun. I hope I never have to use it in anything but sport.

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