The 2nd Amendmet is Not a Commandment from God

  

  “The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

    This is James Madison’s first draft of the 2^nd Amendment.

    The final version, as it exists in our Constitution now reads, “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.” 

    Note that the original placed the infringement clause first, which many personal-carry advocates say is separate from the militia clause. If we look at the first draft, the militia clause is obviously linked to and consequential of the fact that the people were and are the militia. Add to this an extension of the amendment that addresses religious objections to service in the militia, and we cannot say that the amendment was anything other than an address of the rights of Americans to a broad defense as the militia in place of a standing army. Standing armies were commonly critiqued during the era because they answered to a sovereign and not the people, but if the people were the militia, then civil accountability was secured.

    Also note that the original draft read, “a well-regulated militia being the best security for a free country,” while the final draft said “free State.” A national approach was nixed by the anti-federalists in the Constitutional Convention because they saw the wording as a potential threat to states’ rights of defense against a tyrannical overarching nation, embodied by a standing army (this did not prohibit a national standing army as many presume). Plus, many states wanted this reading to preserve state militias as their "runaway slave patrols."

    Despite the fact that the 2008 Heller decision in the Supreme Court recognized the 2^nd Amendment as securing individual rights, the 2^nd – in context – absolutely does NOT address individual carry or ownership. This is a contemporary anachronism.

    George Mason did say of the militia, “I ask who are the militia? They consist now of the whole people, except a few public officers.” –Address to the Virginia Ratifying Convention, June 4, 1788. The correlation of militia to the people is clear. Nonetheless, the context of the 2^nd  is about state defense and not the personal right to arms, as I will show.

    There was no expectation of banning personal ownership in the founding era, since the militias were composed of the citizenry (at least free white male property owners), who would bring their own weapons (they were even fined if they didn’t bring military worthy weapons). The 9th and 10^th Amendments even note that some rights exceeded federal enumeration, so nothing in the 2nd prohibits personal ownership. It’s just a different issue.

    Personal ownership was assumed by extension of English Common Law, which informed our national laws. People did use weapons for self-defense, state/national defense, hunting and sport, and even to settle disputes (see Hamilton v. Burr). Many founders addressed matters of an armed society as necessary for liberty, and Pennsylvania did include personal defense into their state Constitution: “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” –Article 1, Section 21. (Note: this may be a collective "themselves.")

    So then, since the Bill of Rights does not address all rights, and the context of the nation’s thoughts at the time seem permissible of individual ownership, there is indeed a right to own a gun and for personal defense. However, the 2^nd Amendment is NOT that guarantee, even if tangentially related. The 2^nd is about who the militia is and what they’re for in opposition to a national standing army. Alexander Hamilton, in Federalist Paper # 29 explains as much. In that commentary, he explicitly notes that NOT everyone who is the militia (the people broadly speaking) will be called to arms practically. And, those who are called must be uniformly trained and regulated. Regulation alone presupposes the possibility of gun control, even if banning ownership is impermissible. The expectation is that only those regulated and properly trained and equipped from the broad militia be the called upon militia in time of service, as a matter of practicality. As Hamilton says (my explainers in brackets):

“The project of disciplining all the militia of the United States is as futile as it would be injurious [the 2^nd is about calling those who are well regulated, trained, and equipped], if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice [not every citizen has the time to train or respond]. It is not a day or even a week that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions as often as might be necessary, to acquire the degree of perfection which would intitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labour of the country to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expence of the civil establishments of all the States [the people were the militia, but not everyone can deploy or train equally, so specific members need to be selected and regulated]. To attempt a thing which would abridge the mass of labour and industry to so considerable an extent would be unwise; and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at with respect to the people at large than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year [training and arming the militia needs regimentation and does not just befall the average citizen].

But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable [see my last bracket]; yet it is a matter of the utmost importance that a well digested plan should as soon as possible be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate size upon such principles as will really fit it for service in case of need [… again]. By thus circumscribing the plan it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defence of the State shall require it. This will not only lessen the call for military establishments; but 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; the best possible security against it, if it should exist.”

    This paper was Hamilton’s commentary on the 2^nd. It was not about individual ownership, but common defense and it involved controls: training, equipping, and so forth. With that, gun control actually has a legitimate constitutional place in our society. Many places in our nation had gun control well before it was a modern issue. Dodge City, Kansas, in the 1800s, prohibited firearms, and Deadwood, SD in the same era required that guns be checked in with the local Sheriff. In the founding era, southern slave codes prohibited blacks from gun ownership, reserving ownership for white propertied men. There were even laws in some places banning the Irish from gun ownership in the mid-nineteenth century. Some of these laws, like the banning of the Irish and black people from gun ownership, were outside the scope of the Constitution (the Reconstruction Amendments – 13^th through 15^th – corrected this for black Americans), but regulation and control were not violations of the 2^nd in the slightest.

    So, why do I write all this?

    Because 19 kids were killed yesterday in yet another school shooting.

    I own many firearms. I have no problem with private ownership. But we need to stop mis-citing the 2^nd Amendment out of context, despite the Heller case. The 2^nd is not sacrosanct (it's an amendment and can be repealed or altered by the people). The 2^nd is explicitly about militias. History in its fullest context demonstrates this, though it doesn’t dismiss private ownership. What we need is reason. We need to recognize that there are way too many nutters killing indiscriminately. We need to reconsider control and not resort to knee-jerk reactions while propping up an amendment that isn’t actually addressing what we think it says or want it to say. Sorry folks, but it’s becoming a bit loony.