Monday, February 4, 2013

With Regards to the Second Amendment

I have, in recent years and, increasingly in recent weeks, been asked how I feel about gun control.

Generally I shy away from this sort of question.  I do so for a number of reasons.  First, I am not entirely convinced that gun violence in the United States isn't caused, primarily, by other characteristics of our polity - our inadequate mental health care, our high level of gang violence (which itself is caused by malfunctioning probationary and incarceration systems), and our grossly unequal availability of excellent, affordable, universal education at all levels.  Second, I am always hesitant to stride into the waters of "angry issues," the kinds of issues that result in yelling, screaming, and a refusal to compromise - gun control is clearly one of these.  Third, I honestly don't know where to start in the discussion of this issue.  It is, for me, emotionally, philosophically, and practically complex. 

I suppose I should begin with my personal biases.

I. Biases

Notably - I am an Appalachian and a Southerner.  I grew up with guns and eating wild game.  I am not afraid of firearms and, yes, I do see them as a part of my cultural heritage.  Do I hunt?  Not personally, and I honestly despise trophy-hunting and any sort of ecologically unhealthy hunting, but many of my family members and friends do and I truly love wild game.  I also know folk who, and I say this without hyperbole, use hunting as an essential supplement to their food supply, allowing them to focus their wages on other benefits.  

Secondly, I am a social libertarian at heart - I believe that human individuals should be free to do virtually anything they'd like insofar as their actions do no injury to other people.  The problem with that, as one would expect, is determining what constitutes "injury."  

Third, I think there is a real and meaningful difference between weapons designed for hunting wild game, weapons designed for self-defense, and weapons designed for offensive military or para-military effort and I believe this difference is fairly obvious.  In functional terms, weapons of the first two genre are dangerous, but it is difficult to kill large numbers of people with them quickly.  Weapons of the third genre are dangerous and, if one has a basic understanding of their use, are able to kill large numbers of people very quickly.  This is not a condemnation of those weapons - it is a factual, comparative observation.

Fourth, I am a Machiavellian, above all else, when it comes to political philosophy. That means that I believe we, as a polity, must judge our policies primarily in terms of their outcome, not in terms of their intention.  One of the things Machiavelli observed, very simply, is that a well armed populace, trained and regulated into  popular militias, was a preferable alternative to professionalized militaries in free republics.  Why?  First, they are less expensive - public debt is lower, more income is put into education and infrastructure.  Secondly, they are made up of citizen soldiers - folk who wish to defend their homeland but are uninterested in unnecessary imperialist expansion.  Third, they avoid the dangers of a faction developing which is primarily dependent on warfare, rather than constructive economic activities, for its members personal advancement.  Finally, militias reinforce the principles of egalitarianism and patriotism and, as such, a willingness to act as a public servant on the part of the general population..  

Fair enough.  Let's go to the Constitution.

II. The Second Amendment

First things first.  I don't worship the Founders, though I admire and respect them, and I don't worship their statecraft either, though I do, frankly, consider their efforts to be among the most intellectually impressive in human history.  Fair enough.  On to the text itself:

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.

Simple, eloquent, and elegant, the second amendment is lovely to read out loud.  Try it. I'll wait.

Impressive isn't it - as much so for its use of the language of the masses as it is for its apparent clarity.  And therein lies the problem itself, doesn't it?  Elegant, simple language is not the language of law - it is the language of men and women at dinner, of teachers educating their students, and of politicians trying to come to a point of agreement.  Law is precise, filled with jargon that has very specific meaning within very specific contexts.  When well written law often requires careful consultation of precedents and dictionaries (and not the Webster's I still have from high school, but the dictionaries emblazoned with the names of dead British scholars or dead American churchmen or politicians).  Precision is what allows us to know what human individuals may not do vis-a-vis one another and with regards to their polity as a whole.  Imprecision gives wobble-room, flexibility, but given the hard truths of politics, it typically means that whatever interpretation of the law benefits the most powerful interested party typically is the one that rules the day.

Regardless, it is worth our time to try to, insofar as we can, lend what precision we can to this lovely sentence, depriving it of some literary value in order to imbue it with greater utility.  Thus:

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.
Oooh.  Very pretty.  But also practical.  What I've done here is divide up this simple, grammatically awkward sentence into subsections which, when separately considers, should add greatly to our understanding of the real meaning of the Second Amendment.  

A WELL REGULATED MILITIA Out of the gate we have something which immediately throws to the dust any notion that the government of the United States is in no way, shape, or form justified in regulating its militia.  Regulation does not infer, as we will see (at least in this instance) the Federal government may abolish militias, indeed, it seems clear that militias are conceived as necessary and essential to the proper functioning of the American polity.  It does seem clear, however, that the means used by militias, membership and participation therein, and so forth shall be very much subject to Federal mandate and, essentially, that the people's armaments (that is to say those weapons not held by the professional military of the Federal government itself) are clearly subject to such regulation.  This seems clear enough, but is made even more clear when we refer to two other major portions of the Constitution - specifically the First and Second Articles.  Consider Section 8, Article 1, which, among other things, defines the rights and responsibilities of Congress regarding the militias of the United States: 

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
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;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Okay - the sections I made red refer to the military powers of Congress, the highlighted red sections refer to the rights of Congress concerning militias in general.  What seems to be the case?  Clearly the militias are intended to be instruments of the various states, subject to the military training, discipline, and arming principles of the Federal government (thus creating a high level of interstate systematization) - a fancy way of saying they are run by and for the states, but according to principles dictated by the Federal government and, further, they may be called into the service of the Federal government if and when it is so necessary, though the Federal government is expected to outfit the militias in such an instance.  

The Second Article of the Constitution defines the powers of the President of the United States and we see corollary discussions of the military role of his or her office in the second section of the that article:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
Not a heckuva' lot here, is there? Indeed, this is probably one of the greatest errors of the Founders, failing to clearly delimit the rights of the President with regards to the use of the military of the United States, necessitating the ongoing ideological battle between those oppose and support the principles of the War Powers Act of 1973 - but that is a subject for another day.  What is clear is that the militias, which are bodies administered and established by the various states, may be obliged to obey Federal dictates - though rather than in preparation, outfitting, and general authorization (or mandate), powers reserved to Congress, in actual field operation under the aegis of the President.  

So, what does all this add up to?  Well, it seems pretty clear - the various states are all entitled and mandated to create militias - military units which serve state interests that do not conflict with Federal interests, which are subject to Federal regulations in terms of outfitting and training, and which may be mandated to serve in such situations as are dictated by the Federal government.  This means something a lot of folk just don't want to hear - the Constitution, as it exists now, is asserting that the right to bear arms is defined within the framework of the rights of states, not the rights of individuals.  This means that, not only do states have the right to legislate restrictions, the Federal government has a similar and, it would seem, overriding right to do so insofar as its restrictions do not impair the ability of a state to maintain its own defense and to preserve its fundamental character.

Let's not jump the gun yet though.  

BEING NECESSARY TO THE SECURITY OF A FREE STATE This phrase implies a few things. First, it is a reiteration of the Machiavellian pro-militia standpoint - militias serve to guarantee the safety and well-being of republican forms of government.  Our question has to be, do the Founders here mean a republican Federal government, republican state governments, or both?  Our assumption, given the assertions that both are guaranteed to the population in the main body of the Constitution, must be that militias exist to preserve such security for both bodies.  In other words, militias may properly be understood as safeguards against both exogenous and endogenous threats to free and fair government at both the state level and Federal level - in other words, they are intended to protect republicanism, as a principle of government, as well as mere government itself, from threats originating outside of the government, threats originating from within the Federal government, or threats originating from within one or several of the various state governments.  This only makes sense - balance-of-powers was the rule of thumb of the Founders when it came to domestic politics - having the states able to gang up on one another or on the Federal government, or to cooperate with the Federal government to stamp out possible threats to free government is a practical measure.  

There is also the nature of the Union at the time to consider.  The United States was still very much a frontier polity, bordered by military bastions of the great European colonial powers, limited in terms of its ability to project military strength, economically dependent on Britain, in a slow, continuous battle for territory with hundreds of native American polities that did not recognize American claims to manifest destiny.  Certainly, in  New York, Boston, Philadelphia, Charleston, and Williamsburg the majority of weapons might be held in centralized armories, but in the countryside, particularly on the frontier, these were held individually - never farther than a few steps from the farmer, trapper, or trader (if they had sense about them, leastwise).  In towns and cities folk were formally organized into militias continuously, drilled in order to provide them with fundamental skills; on the frontier this only occurred when crises loomed, and then still depended on the ability of professional officers to know how to exploit the strengths of highly individualist men who had a good working knowledge of woodcraft and shooting but little interest in drill or order.    Thus, to speak of "the militia" for any given state was to speak quixotically - militias were different things in different states both because of the different conditions and the different needs of those states.  The esoteric, liberty-obsessed Bostonian was in a different circumstance from the practical, survival-minded Kentuckyian, but both reflected the particular and proper reality of their state's understanding of preserving a free state. 

THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS This phrase takes on greater significance now that we see that militias are clearly the name of the game - this is a collective right - specifically aimed at the people both as a national whole and a state-level whole.  But, it should be noted, every collective right is of necessity, practically, atomistically an individual right.  "The people" refers to the right of the state governments, primarily, and the Federal government, secondarily but definitively, to define the nature of militias and the methods of their use and armament so long as this right is not alienated. 

But what does this mean? 

Well, from what I can tell it probably should mean that each state has the right to define its militia and, within reason, define who may or may not participate in it.  It has the right to determine what weapons the members of that militia and lawfully have access to, the training necessary to use these weapons, and where these weapons may be held (in homes? in communal armories?  to be determined by localities?).  The criteria for these rules above all else must be the preservation of the state according to a republican and free model.  The Federal government may impose certain requirements of their own, but these requirements must reinforce the principle of republican government, not undermine it.  

Okay, but what does this mean?

Well, therein lies the rub.  There is still a great deal of messiness - messiness which, no matter how you frame it, must eventually be uncluttered by the Federal judiciary or some other system, which presently does not exist, which can clarify and adapt in a fair and transparent manner - a sort of militia board or militia caucus, perhaps.   No matter - there is clearly too much ambiguity here and inadequate movement historically towards resolving that ambiguity in an enduring manner.

SHALL NOT BE INFRINGED The final phrase is critical here because it demands we grow up, collectively, as a society, and deal with this in some way.  The right of individuals to participate in the defense of republicanism through state-managed, Federally overseen and regulated militias is declared to be a fundamental right.  There is no getting around this.  The question is, the gigantic question, the question neither I nor anyone else you know can give a crisp, clean answer to, is this: what types of weapons should militias have, how organized should they be outside of a time of crisis, and does the individual right to have access to weapons to defend the republican polity mean that they have the right to maintain private ownership of weapons and/or stewardship of public weapons? 

This answer isn't in the Constitution as it currently exists and our laws and precedents, as they currently exist, imperfectly answer these questions - imperfectly, but they do answer them and, it seems, in a way that generally conforms to the Constitutional prerogatives given to Congress and the states. Which is something.

III. Classification

Many pretend that all weapons are equal, but this is, frankly, idiotic.  Weapons (by which I mean tactical weapons - I won't even touch strategic weapons here) can be divided into three general categories.  First, some weapons are primarily used, in contemporary America, for hunting.  It should be noted, of course, that weapons designed for hunting are ultimately all derived from dual-use weapons that were used for hunting and warfare.  Secondly, some weapons are designed with the intention of allowing the user to kill or injure only one person at a time - these are tactically precise. Third, some weapons are designed with the intention of allowing the user to kill or injure relatively large numbers of people rapidly, typically with the advantage of generating "battlefield chaos," that is to say fear and confusion which may then be exploited by others with more precise munitions.   

All weapons are designed to injure or kill.  All weapons will, at times, be used for this purpose and, more specifically, for the purpose of injuring or killing human beings.  But, equally, the threat presented by weapons retasked for criminal, rather than civil, purposes is wildly variant.  The practical lawmaker, I believe, should consider this when generating laws - weapons of the first type should be beholden to far fewer regulations than those of the second, which should again be beholden to infinitely fewer than those of the third.  

If laws are intended to limit the injury one party does another party, be it intentionally or unintentionally, then the greater capacity an object of regulation has to cause injury either in terms of intensity or extensiveness (how bad the potential for injury is versus how many people may be injured by the object), the greater the polity's right, nay, moral obligation to regulate it.  

IV. Conclusion

Put in plain terms - it is tough to argue for more than minimal regulations on hunting weapons; it is hard not to argue for significant, but not easily debarring regulations on weapons designed exclusively to kill or injure one human being, and it demands ideological bias of the highest type to argue against weapons designed exclusively to kill or injure large numbers of people in a very short time.  

Practically, what does this mean?  Well, for one, it means that we should require everyone to undergo weapons training of an elementary type at a comparatively young age, excepting those who can argue for an exception on moral grounds (which is entirely appropriate).  Secondly, we should both require and provide extensive education for the use of non-hunting weapons within those states which chose to allow them as part of their licensing process.  Thirdly, the states should have significant leeway in how they organize their militias and define the implications of those militias (e.g. if New York wants to have only community ownership and use of war-making weapons, and Montana wants more distributed ownership and use, they must both justify and mutually respect one another, as well as the Federal governments efforts to make this practicable), understanding of course that deregulation is not an option and that there must be some preservation of the right to bear arms in the form of a regulated militia.  


  1. A sensible measured discussion of an emotional topic... BLASPHEMY. Pick a side you pin head! No, seriously, this is the deconstruction we were looking for, it's the deconstruction we need, but it may not be the one we deserve.

  2. You, sir, are entirely too kind. Clearly you have some clever scheme. I shall be sharpening my petard...

  3. Eric, you have written a closely reasoned and sensible defense of the proposition that laws about ownership of guns will be necessary. Reasonable people will be hard pressed to quarrel with your arguments and conclusions.

    A libertarian like myself can only wish the federalism you describe for gun control could and would be the case. But it seems entirely unlikely that the Leviathan that is the United States federal government will go along.

  4. If the writing style, as you said, is an issue because it is very informal and simple then would you not say that in addition to what one can extract from the text one should also gather insight and commentary from the people who wrote it?

    I am not sure if it was even an entirely one-sided debate then but it seems the Founding Fathers did have some to say about the "right to bear arms" and the purpose of the militia. Was it not common for Jefferson and the like to speak of tyrants and resistance to them?

    If the founding father's never really clarified about the intent of the 2nd amendment then could it really be simple and debate has led to over-complication? haha

  5. DLK, difficulty is merely incentive to the active polity!

    And Michael, clearly we have a great deal of oversimplification; but, equally, we need to bear in mind that the apparent simplicity of the text is probably more the result of competing interests and competing interpretations among the Founders. As I noted - in Williamsburg militia meant something very different than the Appalachians at the same time, and that was within one state. That said, even though the original intent has significance, in a common law society we simply can't assert original intent as the basis of our interpretation - it is a beginning, not the whole tale, and it is problematic as it is the product of committee and Congress, not merely one voice.

  6. Extremely well written piece. Thank you for being able to very eloquently state an argument I've been making (clumsily, compared to this) for a while now.

    1. Good Mr. Thomas,
      thank you, sir, for your kind words!

  7. Why was the 2nd Amendment included?
    I recall that some states were concerned that the newly created Federal government could march on them to free their slaves. Some had already outlawed the practice. This amendment ensured that the states could raise an army to repel the Feds, if necessary. They signed on to be part of the new nation because of the protection this gave them to continue the institution of slavery.
    Please correct me if this is wrong.

    I have my biases, too. I believe the "gun lobby" is holding the nation hostage to their interpretation of the 2nd amendment, much to the detriment of our society.

    Thank you for a thoughtful essay.

    1. Teresa, a good question, but I don't think that is all of the picture by any means. The 2nd Amendment clearly is intended as a guarantee of states rights - as all of the bill of rights amendments were meant to guarantee either the rights of individuals, states, or both, but I suspect, like most of these amendments it had multi-sectional support (indeed, it had to have had as much to pass the ratification process). Now, I don't know the breakdown of support but I suspect it might have had support from Northern states for reason of fear of Federal imposition, as well as Southern (after all, most early secessionist movements were centered in New England or New York), but also for fear of British and British-allied native American attacks (in particular on the Allegheny and Maine frontiers). The Westerners would have had similar concerns, including the relatively small amount of hostilities that would have prevented free trade on the Ohio and Mississippi systems, while the Southerners would have feared assault by Spanish or Spanish allied native American groups as well as certain British allied native American peoples. Add to this the Southern fear of slave rebellion, northern fears of frontier rebellions such as the Whiskey Rebellion (really northern fear of Western rebellion), and the fear the North, South, and West all felt of each other's efforts to impose their rule on one another, either for economic or socio-religious reasons, and the fear of tyranny by states of their own population, by states of one another's populations, or of the Federal government as coopted by certain alliances of states makes the picture, well, pretty darn complicated.

      As for the gun lobby, I always say that in a democratic republic polity, like our own, lobbies can only matter if the people of the polity refuse to vote against them - they are not hostage-taking, just taking advantage of an area in which our fellow folk are, honestly, willfully avoiding meaningful discussion. At least that is my take on it.

      And, of course, Teresa, thank you for your commentary. It makes me happy to know folk are talking about things that need to be talked about.


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