The 2nd Amendment: What Both Sides Get Wrong
The division of opinion exists between two clausal concepts in this [poorly worded] sentence: the militia and the people. We know from era founders, such as George Mason, that the broad population was deemed the militia. Mason said, "I ask, sir, what is the militia? It is the whole people except for a few public officials," (George Mason, 3 Elliot, Debates at 425-426). So, the logical construction of this sentence links the people and militia into a single unit. This sentence does not say as many on the Right might want, that the militia and people are distinct entities. Others rightly recognize that the people are the militia, but they assume that their arming is universal or broadly applicable to all citizens. Yet, this is only a half truth.
The context of the era links standing armies to the tyranny of monarchs. The founders were wary of too powerful a military and sought to diffuse such potential danger by using a ready-reserve from the populace of each state. Therefore, the militia was indeed the whole of the people, but not actively so. It did not mean that every person was to be armed or expected to serve in the defense of the states or nation. Alexander Hamilton lays the idea out clearly in Federalist Paper # 29. In summary, Hamilton asserted that not everyone could or should be expected to answer the call to arms. This would affect businesses and livelihoods, and place an undue burden on those incapable of defense. At the same time, a voluntary auxiliary military force would come with a hodgepodge of skills and equipment, so Hamilton recognized that a regulated and trained selection of able-bodied men be deemed the practical militia.
So, in defense of the Left's normal claims, the amendment says nothing about owning firearms and is only applicable to an organized part-time force drawn from the populace. Though the population at large is the militia in a general way, absent a standing army, not everyone is able. Only the able, trained, and regulated were the serviceable militia. The Left is correct that this amendment is historically and contextually not about the citizenry's right to own guns, but rather it is about who gets called up and that the states are obligated to abide by uniformly regulating them. Regulation presumes the recognition of which arms are appropriate and uniformed. Yes, the people/militia kept their rifles or muskets at home, which is an implied guarantee for a militia drawn from the populace, but this doesn't mean the people have a right to any and all weapons they wanted... That would be an anachronism. This amendment says nothing about what the non-deployed citizen could have in the way of guns. Though recent legislation has held up the private use and ownership of guns, including for self-defense and sport, the amendment really doesn't touch on this.
Yet, sorry Left, the private ownership of guns was expected and normal, even within English common law, which the US inherited systemically. While there is not a declared right for private ownership, the Bill of Rights was never meant to be an exhaustive list of our rights. The presumed private ownership of guns was simply a given and was not seen as necessitating an enumerated mention in the Bill of Rights. It simply "just was."
All that to say, the nation could decide quite legally to restrict the popular use of weapons, especially in light of our current standing military. The core of the 2nd is really antiquated now. Do we still have a right to defend ourselves from tyranny of the government? Surely, but this has largely been addressed within the structure of law and the dual-federalism of shared power between the states and the feds. If we wanted, we could scrap the 2nd altogether... It is not sacred. Amendments can come and go as the people wish. However, it is difficult to change the Constitution, which is a built-in safeguard from the ebb and flow of popular opinion -- a thing that is never fixed. It currently takes 2/3 of each house of Congress to pass an amendment, and then 3/4 of the states to ratify. Getting an amendment on the books often takes years or decades. A slow process is a cautious one, and for good reason.
But here's the kicker... Even if the 2nd was taken out of the Constitution, since it addresses only the use of the people's militia, and since not every right was enumerated, the argument for private gun ownership could still be made, because it was a non-issue of the founding era and was simply assumed. What I think is applicable within the state regulatory clause of the 2nd is what weapons were deemed uniform. If we are going to read the amendment in Mason's broad lens as the whole people and not restricted through Hamilton's "able bodied" model, then the states possess the right to regulate said militia, and this means mandating training and type of weapons as it sees uniformly fit. So, holding to the 2nd as a sacrosanct part of the broad citizenry as the Right Wing does, actually opens gun ownership up to regulation, which is in the amendment. Yes, the idea against infringement is also there, but the two must be held in tandem: a guarantee of the right to own and possess guns, but under the training and equipping regulation of the state one is in.
In light of crime, the Left is warranted in seeking restrictive pathways for the security of the people. In light of defense against encroachment of rights, the Right is warranted in private ownership, even apart from the 2nd. What's inescapable is that our classical liberalism sides with gun owners, but our contemporary liberalism, which seeks a secure platform for citizens to participate in society, sides with regulation. Both are necessary within our system of government. Neither side is wholly right or wholly wrong, but both sides need to come to grips with this, because we need to address some serious things societally. Entrenching behind ideological bents is not helping anyone.
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