Thoughts on the Second Amendment to the Constitution of the United States
A friend of mine, not native to the United States, contacted me this past week, and asked me my thoughts on the Second Amendment to the Constitution. He had specific questions that I thought were excellent questions, and honestly gave me “incentive” to give the matter more of a ponder than I had. I know what I believe, but articulating it is a bit different. It’s kind of like, I know I like vanilla ice cream, but when someone asks me why I like it, and are hoping for a serious answer, I have to think about it a bit.
Anyhow, I broke his questions down, and there are basically eight questions. I will answer them each in turn.
Last points before I start. 1) Many Americans (and I am one of these), specifically “Constitutionalists,” believe that the Constitution is not a “living document,” intended to evolve and change with the times. It is instead, a legal document, iron-clad, that can only be changed by an intentional, rather difficult, and specifically detailed process. 2) The rights one finds within the Constitution and the Amendments are not given by government. They are, rather, inherent rights of every individual, given by God. These rights may not be taken away in a general sense. They can be infringed upon, but they are still the rights of each individual. 3) Individual rights can be taken away, but only by due process, also spelled out by the Constitution.
First, here is the wording and punctuation of the 2nd Amendment to the US Constitution:
“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.”
Ok, here are my friend’s questions:
- The US Supreme Court has broken the 2nd Amendment into two parts. Do you think that’s a correct interpretation?
He is referring, I believe, to District of Columbia v. Heller, a case appearing before the US Supreme Court in 2008. The decision was a narrow one, 5-4. I have included the majority opinion:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context – that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.”
I think this is the correct interpretation, as the minority view (not included) is a rather tortured extrapolation of the words and punctuation of the 2nd Amendment. Additionally, my reading of the 2nd Amendment is that what the founders intended is rather obvious. What I mean is this. To my reading, the Amendment is naturally broken into two parts, as interpreted in Heller. Part one: “A well regulated militia, being necessary to the security of a free state…” Part two: “…the right of the people to keep and bear arms, shall not be infringed.” I want to state here that I believe the Founders were stone-cold geniuses. These were men that believed in what they did, to the point that they were willing to die for these beliefs. And many did. The United States was a huge leap away from government at the time. Yes, they borrowed ideas from Greek democracies, as well as philosophical and Biblical sources, but the entirety of the country they founded had never been seen in the history of the world. They argued, debated, fiddled, fussed, compromised, and published a document that is breathtaking in its brilliance. Not one word is unintentional.
That having been said, it appears to me that what they intended with the 2nd Amendment is that each citizen has the right to “keep and bear arms,” and that if called upon, that each citizen be prepared to defend their country. And it was each citizen’s responsibility to be prepared and equipped to do exactly that. There’s another way (and only one that I see) to word the 2nd Amendment so that it is not tortured into some other meaning. “Our new government will not infringe on each person’s inherent and God-given right to keep and bear arms, because we understand that it is a given that people need to be prepared to defend their country when called upon.” Yes, I know the Second Amendment (AKA: 2A) says “militia.” That was the form used to defend the country at that time, and I will address this a bit later. However, for now, the point is, the point is, the point is, that the right they are talking about is that each and every citizen has the right to own firearms. If written in today’s idioms, they might start off with, “Ok, we know that everyone has the right to own firearms (duh!), so since that’s the case…”
Further, as evidenced in other parts of the Constitution, they were well aware that the government under which one lives could easily be (or become) tyrannical, and that individual citizens have the God-given right to throw that government to the curb. Kind of difficult to do if individuals can’t own firearms.
2) It says “militias.” Are there such in the US? If so, how would they carry out their duties, and how would they be recognized by the US Military or by police agencies.
As I said above, I don’t think “militias” is the point of the 2nd amendment. Maybe a different way to say it is that “the right to keep and bear arms” was, to the Founders, a “given;” that there was no need to discuss it, since it is so obvious, “but we will do so, since we know people can be dense.” What the 2nd (2A) does with militias, is to say that since individuals have the right to own firearms, the federal government may not prevent militias from existing, so that “citizen soldiers” can train to be an effective fighting force for the defense of one’s country. In the US, each state has a National Guard (in essence the descendants of the early militias). They are primarily a state entity, but can be mobilized by the President so serve as a Federal agency if the need arises. Members of the National Guard train and are equipped similar to those in the US Military. Most of their equipment, although issued, is the responsibility of the individual to keep and maintain. Weapons are issued.
At the time of the Founding, the US Government had not the means nor the ability to supply individuals with all needed equipment, and especially for state militias, so that responsibility was left to the individual. The National Guard has basically taken over the role of the early militia, and of course is recognized by law enforcement and the US Military as such. However, I need to again point out that a militia was the byproduct of the individuals’ right to keep and bear arms (which is/was a given), not the sole reason that individuals are permitted to own weapons.
3) What arms do I see as necessary for the individual to use in self-defense?
This isn’t spelled out in the Constitution or the Amendments. So this requires extrapolation. Here’s mine.
I have heard the argument that at the time of America’s founding, the weapons available for the military were also available for any individual to purchase and own if they had the cash and desire to do so. Ok, that’s true, but only the wealthy could afford multiple firearms (rifled and smoothbore, long guns and hand guns), cannon, sailing ships, and so on. I also believe that the Constitution is not just for the wealthy, but for the common man as well. So what did the common man have at the time? Mostly a musket, and maybe if he was lucky, a rifle, but usually one or the other. Those were also the arms commonly carried by the individual soldier. Translate that to today, and you are looking at a rifle or shotgun, and maybe a sidearm (handgun). Yes, soldiers also have access to grenades, RPG’s (Rocket Propelled Grenades), machine guns, mortars, and so on, but the basic weapons are rifles, shotguns, and hand guns. And I don’t think there is any cogent argument against individual citizens having the right to own weapons in those categories. However. I also believe the government has the ability to regulate the ownership of fully automatic weapons, hand grenades, RPG’s, artillery, war planes, battleships, and whatever. Is this an inconsistency on my part? Not sure, but I don’t think so. Of the weapons available in gun stores now, I am adamant that they are currently legal to buy, own, and use. Further, I am adamantly opposed to restrictions on those firearms that are currently legal.
As a side note, it is actually legal to own most of the individual weapons listed above, at least fully automatic weapons and other individual weapons of exotic nature. First, one must apply to the US Bureau of Alcohol, Tobacco, and Firearms, must pass a rather rigorous background check, and must pay a yearly tax to continue owning the weapon. And this is per weapon, so for every exotic weapon I may want to personally own legally, I must go through the process again.
To specifically answer the question, as a home owner and as a decades-long police officer, here’s what I see as necessary for the individual to have available to use in self-defense: rifles, shotguns, and hand guns. Now the question becomes, “which ones?” And my answer for that, is anything that is currently legal. And by “currently,” I mean now, today, October 15, 2017. I do not mean “currently” as in whatever is legal at a particular date and time in the future. If it is legal now, at this specific time in history, then I think it is valid for an individual to buy, own, and use for self-defense. I personally have all three in my home: rifles, from AR-15 type weapons, to hunting rifles (from .22’s to big bore); shotguns of various gauges; and handguns of multiple caliber. I have owned weapons my entire adult life, through the raising of children, visitors to my home and company staying for a while, and I am confident that myself and my wife can protect ourselves as needed, and still be safe from accidents as we can be.
4) Is there a practical need for “assault-style weapons?”
Ok, this is kind of a loaded question, and I need to break it down. Unfortunately, the term “assault weapon” has been emotionally loaded with a huge negative connotation. Historically, “assault weapon” didn’t even exist before 1977, and was used by the US Military for a specific rifle-fired grenade launcher. The term was appropriated around 1985 and later by people on the political far left and by the left coast state of California to include just about any firearm that looked scary and could be used to further the anti-gun agenda. Seriously. Although I’m not going to quote him here, if you’re interested read some of the early stuff written about “assault weapons,” you can look up an article written by Violence Policy Center founder Josh Sugarmann in 1985. One of the things he said, though, was that by describing weapons as “assault weapons,” most people would see no practical use for them, thus making it easier to get bans and limited ownership enacted. In other words, make a weapon sound scary enough, and people can be manipulated into banning it.
In 1994, the Federal Assault Weapons Ban was enacted (mercifully it has expired, and not re-enacted). At that time, the United States Department of Justice defined assault weapons as generally being semiautomatic firearms that had a large magazine for ammunition and that were “designed and configured” for rapid fire and combat use. The problem then and now is that technically a six-shot revolver, semi-auto handgun, automatic shotgun (in actuality a semi-auto, so don’t get all ya ya about it, that’s just what they are called), pump shotgun, semi-auto squirrel rifle, and lever action rifle can fit under the designed and configured for rapid fire and combat use designation. Plus, magazine size is no issue either. What is the definition of a “large” magazine? Twelve rounds? Twenty? Thirty? Let’s say for argument’s sake that a fifteen round magazine is ok, but nothing more. So, take two fifteen round magazines and load them up. You have two fifteen round magazines, both legal. Now, get a roll of electrical or duct tape, invert one of the magazines, and tape the two magazines together offset so that each magazine sticks past the other a couple inches. What do you have now? A completely legal thirty round magazine. With someone not real practiced with this, firing off fifteen rounds, extracting the empty magazine, flipping it around, inserting the full magazine and charging the weapon to get back into action is at most a three second delay. For someone practiced and comfortable, it will take less than one second. Trust me on this.
Currently, most definitions of the term assault weapon have some common elements:
- Semi-automatic firearm capable of accepting a detachable magazine;
- Folding or telescoping (collapsible) stock, which reduces the overall length of the firearm;
- A pistol grip that protrudes conspicuously beneath the action of the weapon;
- Bayonet lug, which allows the mounting of a bayonet;
- Threaded barrel, which can accept devices such as a flash suppressor, sound suppressor, compensator or muzzle brake;
- Grenade launcher; and/or
- Barrel shroud, which prevents burning of shooter’s arm or hand as a safety device.
None of which has anything to do with the caliber of ammunition used or the damage that can be inflicted. The only thing affected is how the weapon looks. Military rifles are often in either .223 or .308 caliber, and either caliber can be found in a semi-automatic rifle without any of the “common elements” listed above. But even assuming one purchases a military-type rifle, it is common that rifle will be semi-automatic with a telescoping stock, a pistol grip, and a barrel shroud. Is there a practical use for such a weapon? Well, yeah, I guess so. None of those standard features are mandatory, but the pistol grip is more ergonomic, and the barrel shroud keeps me from bad burns on my hand. I think I would reverse the question. Is there a practical reason to ban them? What would such a ban accomplish? Even assuming each currently existing and privately owned weapon meeting the above criteria were confiscated, there are still rifles that would be outside the definitions used. And they would still do the damage that the “assault weapons” are capable of doing.
5) Have you ever been in a situation that you felt hampered by the lack of an “assault-style weapon?”
No, I thank God I have never been in a situation where I didn’t have a weapon that would fit into the “assault weapon” designation, so I have never felt endangered by not having one at hand. However, is “only if needed” part of the 2nd Amendment? If I am not likely to be in a situation where I need such a weapon, does the 2nd Amendment then not apply to me? Is this how any of the Amendments are, or should, be interpreted? I would argue against that. Our rights, as guaranteed by the Constitution and its Amendments, are not need based; they are inherently our rights to use or not use, as we wish. The point is not that those rights are there for us to use when needed, the point is that I always have those rights, and the government may not take them away from me without due process.
As a corollary, I was once talking with some friends about cars, and I voiced that I would really enjoy owning one of the original Hummers. One of my friends, in a rather condescending and sarcastic voice, said, “No one needs one of those.” My response was, “Who said anything about need? I said ‘want.’ And who are you to say what I can own or not own? If I have the money to buy something, I want it, and I buy it, who has the right to deny me that?” The same goes here. If I have the money for an AR-15 style rifle and I want one, I may buy one. Without due process, I am permitted to own one, two or as many as I wish, and this is guaranteed by the 2nd Amendment. It has nothing to do with need. And although I own several firearms, I am a piker compared to others that own many, many firearms and a lot of ammunition. But who is in a position to dictate how many someone can own?
I would also point out that I have never been in a situation that I felt hampered by the lack of a fire extinguisher, either, but I have them all over the house. I’ve never needed a fire extinguisher and I’ve never had a fire in the house, but I own fire extinguishers.
6) What can you achieve with such weapons that you couldn’t achieve with a handgun?
This one is relatively simple, and that is just that one is a rifle, and one is a handgun. Rifles are inherently more powerful and have greater range than a handgun of similar caliber. Personally, if I had to take on a grizzly bear, I would rather have a heavy caliber rifle than a .45 Colt. On the other hand, when I go to the store, I don’t want to lug my shotgun, I want to carry my handgun. Rifles are more useful for long distances, handguns are better for close targets. So, this is kind of an apples and oranges thing, it depends on the circumstances.
Let’s say that I hear someone breaking into my house, cursing and screaming that he is going to do me harm. Measuring the situation, I know that he’s still outside the house, but he is determined to get in. With this in mind, I would likely get my AR-15 type weapon, load it, and prepare to confront him. Under these circumstances, I have the time to prepare and I have plenty of distance between me and him. If he gets in and charges me, I can weigh my options, and if he is armed, the fact that I have a semi-automatic rifle with multiple rounds, I can pretty much guarantee the only thing that will be harmed on me is my hearing from the discharge of the minimum rounds needed to cease the attacker’s aggression.
On the other hand, if I wake up and realize that someone has broken into my home, and is already inside, I would prefer my .45. I don’t have the time to prepare, and I can’t be sure I will have enough distance between me and him to bring a rifle to bear before he gets inside the barrel, thereby making the rifle useless in the fight. With my .45, it is not possible to “get inside.” Even if he makes physical contact with me, the handgun will be effective in my defense. In addition to the hearing loss, I will probably also have powder burns, and maybe even a bit worse, but I am still confident I should be able to stop the aggression.
So, it depends on the situation, as to which would be optimal, and which I would need to achieve my goals.
Finally, my friend posited a story in which one woman pulled a handgun (presumably owned and concealed legally) on another woman in a store over an item that both wished to buy, but was in short supply. He asked if her rights under the 2nd Amendment should be infringed.
My answer is that any citizen’s rights under any of the Amendments to the US Constitution can be removed or infringed with due process. For instance, someone convicted of a felony may not own firearms and cannot vote in US or State elections. One’s right to worship can be infringed, if that individual’s religion entails illegal or violent activity. One’s right to publish a free press can be denied if that newspaper is intended to incite or harm other individuals. But here’s where each of us is protected. None of these rights can be taken from any citizen without due process. The due process is in this case, the “however.” If, after due process, the determination is made that for clear and convincing reasons, someone’s rights in a particular area should be removed, then yes, those rights may be denied to the individual. In the case presented by my friend, let me look at it as a cop. First, I would have absolutely no problem in arresting someone under those conditions. I would then take a statement from both parties, as well as any other witnesses nearby. I would next get a copy of store surveillance cameras, if any existed. I would then contact the District Attorney’s office, present my facts, and follow their decision as to charge the individual criminally or to not file criminal charges. If charged, and if the case went to trial, and if the person were found guilty of any crime which is a contra-indicator of that person owning firearms, I would be perfectly fine with that. These Constitutional rights that we have are ours by birth or by naturalization, but with these rights come responsibilities. And if we as individuals misuse our rights, then after due process, we may lose our ability to utilize those rights.
Just a few final points.
First, automatic weapons have been used in mass shootings only three times since the 1940’s. So for well over 70 years, automatic weapons are statistically irrelevant when one is discussing mass shootings. Yeah, I know some folks will take the “moral high ground” and say that it’s not irrelevant to those involved. The problem with this argument is that it is easily countered with just a few questions about their “moral high ground.” And this is clearly not what my friend was asking about. I just threw it in. Because I could. So there.
Second, look at the total numbers of weapons out there, versus the homicide rate utilizing those weapons. Since 1993, gun ownership in the US has increased from 0.94 guns per person in 1993 to 1.45 guns per person in 2013. Gun related homicides (suicides are removed from this statistic) has actually decreased from 7.0 gun related homicides per 100,000 in 1993 to 3.6 gun homicides per 100,000 in 2013. So, although the number of guns per person has increased approximately 64% between 1993 and 2013, gun related homicides have actually decreased over 51% in the same time period. This is hardly an indictment on guns of any kind. Yes, homicides are reprehensible. Yes, we should work to reduce them. But consider that despite the number of firearms in the US, homicides utilizing them are way down.
Lastly, in many ways, this is just an academic exercise. In practical terms, the genie is out of the bottle. The only way to stop firearm related homicides is a total repeal of the 2nd Amendment and 100% confiscation of all firearms. And I know of no one that honestly believes this possible, even if they desire such a solution.
So what is the answer? I don’t know. Rather, I have my opinions on this, but that would be for another post. But for now, I just don’t think that banning firearms based essentially on how they look is the solution.