Category Archives: Guns

Is the 2nd Amendment Still Relevant Today?

Guns

The subject of this blog post was brought up in discussion by one of our British friends. The obvious answer to us as to whether the 2nd Amendment is still relevant today was a whole-hearted, “Yes!” But on retrospection, it is a valid question and one that we attempt to address here without bias or prejudice (at least as much as is possible from us). So, rather than starting with the assumption that it is still relevant today and we just needed to find proof of that, we opened ourselves to the idea that perhaps the 2nd Amendment really is just a relic of a past age that we as a society have grown beyond.

To determine whether the 2nd Amendment is still relevant today, we need to understand what made it relevant when it was written. The best source for this is the Founding Fathers’ own words, which can be found in various documents from the early founding of the United States of America. As a refresher, let’s start with the verbiage of the 2nd Amendment 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.” Now we have to dissect this statement and understand what each part of it means within the context that it was written.

At the time that the US Constitution was drafted, there existed no permanently standing US Army. Indeed, the Founding Fathers had such a mistrust of any standing army that they deliberately placed in the Constitution language that restricted appropriation of funds for an army to only two years. This means that the word “militia” has a specific meaning pertaining to the time of the US Constitution’s drafting that differs from the meaning it carries today.

At a basic level, we understand a militia to be a locally organized military force comprised of private citizens. In this basic definition, the current understanding of a militia and its connection to the National Guard in the United States is justified. However, as it pertains to the time of the framing of the Constitution, it differs in some very important ways. First, the militias of the 18th Century were organized and commanded at the truly local level, i.e., at the levels of towns and cities. Second, those militias had no connection or obligation to a larger government. Third, their memberships comprised of every able-bodied white male of a certain age (which varied with each locality) who would bring his own arms and supplies. (Professor Vernellia R. Randall of the University of Dayton provides a short synopsis of the history of the militia in the United States here.)

Today, the National Guard comprises a part of what is now known as the Total Force, which also includes the “regular” military services (the Marine Corps, Navy, Army, and Air Force) and their Reserve components. The National Guard can be called up under the Federal Government and has indeed been deployed to fight in recent conflicts such as Afghanistan and Iraq. The National Guard is also now a volunteer organization, with only those citizens who wish to serve doing so. The closest semblance to the 18th Century militia that we have today would be the draft, were we ever to reinstate it.

If we were to reword the 2nd Amendment language such that it carries the same meaning today as the people at the time of its ratification would have understood it, it would look something like this: “Because we have no standing Army and a militia comprised of every healthy and capable white male of a certain age is the only capability we have for the defense of the Nation, the right of all white males to keep and bear arms shall not be infringed.”

In examining the prefatory clause of the 2nd Amendment, “A well regulated militia being necessary to the security of a free state,” we see that it no longer bears relevance today. We have quite a large standing Army who, along with the other branches of the military and the Department of Homeland Security (and other government agencies, such as the Central Intelligence Agency and the National Security Agency, etc.), provide for the defense of the Nation. Additionally, having ended the draft at the close of the Vietnam conflict in January 1973 and never having reinstated it for any conflict since, the conscription of civilians into an armed militia is no longer exercised. Finally, even were we to reinstate the draft, we would not require nor expect the citizens drafted to provide their own arms and supplies.

However, as the Supreme Court held in District of Columbia v. Heller in June 2008, “The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.” Indeed, we would be remiss if we ended our analysis at the prefatory clause and did not consider the rest of the Amendment’s language and its intended purpose.

The Founding Fathers and drafters of the US Constitution would have had a number of pre-existing legal documents from which to gather ideas about governance and the rights of the people. Many of their ideas would have been closely linked to the existing Declarations of Rights or Constitutions of the original States, which owe much of their ideas to previous English law. Second perhaps only to the Magna Carta, the English Bill of Rights of 1689, among other things, specifically raises the grievance that King James II, “…[caused] several good subjects…to be disarmed…contrary to law,” and “…That the subjects…may have arms for their defence suitable to their conditions, and as allowed by law.” Sir William Blackstone writes in his Commentaries on the Laws of England, “The fifth and last auxiliary right of the subject…is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law…and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” This common law applied across all England, its territories and colonies, including the colonies that became the United States of America until their declaration of independence.

In an attempt to determine what language was included in State constitutions and bills of rights at the time, I found very little language regarding the right to keep and/or bear arms. Only the Pennsylvania Constitution of 1776 and James Madison’s original proposed language for the US Constitution’s Bill of Rights make specific mention of the individual’s right to bear arms:

Other State documents at the time indicate a specific purpose for the right to bear arms, usually citing defense of the State.

And then other State constitutions, charters, bills of rights or other legal documents simply remain silent on the matter. The argument has been made that the reason for specific references to the right to bear arms being omitted from these documents is because it was simply understood as common law at the time. It could also be reasoned that the specific omission of such rights in certain documents was deliberate, since other governments chose to put said language in. In this, we find that comparing what was contemporaneous with the US Constitution at the time of its drafting is inconclusive at best, since we cannot theorize what might have been intended through the language of other documents.

At this point, we could conclude that the 2nd Amendment is no longer relevant in today’s society. Its intended purpose was to keep an armed and capable populace ready to form a militia in short notice for the defense of the nation in the absence of a standing army. Today, we have a standing military for national defense as well as power projection. We no longer rely on an armed populace to be conscripted into service, bringing their privately-owned firearms to the battle. It would seem, then, that the argument is settled. However, this ignores one significant fact that we touched on earlier but haven’t delved deeply into yet: the Founding Fathers’ extreme distrust of a standing army controlled by a powerful Federal government.

“But in a country, where the perpetual menacings of danger oblige the government to be always prepared to repel it, her armies must be numerous enough for instant defence. The continual necessity for his services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees, the people are brought to consider the soldiery not only as their protectors, but as their superiors.” – Federalist No. 8, Alexander Hamilton

“A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence against foreign danger, have been always the instruments of tyranny at home.” – James Madison, Speech before Constitutional Convention June 29, 1787

These two quotes are only a few among many that exhibit the sentiments of the time against standing armies (this essay presents an excellent collection of these sentiments). What, then, would the Founding Fathers have done in our present circumstance, where the United States possesses one of the deadliest and best-trained militaries in the world?

“…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.” – Federalist No. 29, Alexander Hamilton

“…what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them…The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants.” – Thomas Jefferson, Letter to William Smith, November 13, 1787

It is clear that the situation we find ourselves in today would be abhorrent to the drafters of the Constitution of the United States. However, it’s also clear that it would not be because of the proliferation of firearms in the hands of civilians; their objection would be to the standing military that we must maintain (a topic for another post), but certainly not to the necessity such a military presents for the civilian populace to be adequately armed and prepared to resist the violent aggression of its government. In light of this, I contend that the 2nd Amendment is in many ways far more relevant today than it was at its drafting.