Gun Rights: To Keep or Not to Keep
The Second Amendment
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.
Why a Militia?
Thomas Jefferson said, "the greatest threat to a free people is a standing army." To 21st century ears that may sound strange, but it made perfect sense during the time of the Founding Fathers. They liked to refer to precedent rather than relying solely on their own ideas, and one precedent in regard to a "standing army" was the forces of Julius Caesar. It was a formidable military force that allowed the great Roman to assume total power of the Roman empire. The British of Jefferson's day had a standing army. One that could be, and was, deployed not only in Europe, but around the world under the auspices of safeguarding the interests of the British empire. Jefferson rightly feared the very likely use of a centrally controlled military force for purposes of despotism. He had learned about it from history, and he had seen it in his own day.
A standing army is an army under the control of a concentrated government, for the U.S. the federal government, as opposed to a smaller military contingency controlled by local and state authorities. Such a contingency would be a militia. Local men would assemble in defense of their towns and cities, organized by local leaders of the community. For such a force to exist it was necessary for the citizenry to keep and maintain their own weapons, weapons that would be brought in tow should the citizen soldier be called upon.
A question worthy of consideration is if a militia consists of local citizens, why not store weaponry at an arsenal or weapons depository and kept under guard until needed? There are several reasons:
- Response time needed to be immediate as word of mouth was the primary means of communicating oncoming trouble.
- Weaponry served as home defense.
- Weaponry had multiple purposes, eg hunting, putting down infirmed or injured animals and livestock.
- An armory/arsenal could be captured by enemy forces leaving the militia vulnerable and unarmed.
The Battle of Harper's Ferry
Expounding on point #4 one such attack did in fact occur on a U.S. weapons arsenal in October of 1859. Abolitionist, John Brown, led an assault on the arsenal at Harper's Ferry, Virginia in hopes seizing the weaponry stored there and starting an armed uprising comprised of fellow abolitionists and slaves. Word of the raid was not well spread among local sympathizers and the assault failed being supressed, interestingly, by a counter attack from local militia forces. Had local militia not had it's own weaponry, Brown's attack may have succeeded.
This is but one pragmatic example of the need for citizens to possess the right to keep and bear arms.
John Brown: Abolitionist Leader of the Raid on the Weapons Depot at Harper's Ferry
Precedents, Historical and Moral, for the Second Amendment
As stated earlier, the Founders did not create the American Bill of Rights without precedent. They had several.
They knew that in Ancient Greece, a male citizen was given a set of armaments when he turned 20 years of age and he was expected to serve in the local armed forces in whatever capacity needed.
The Founders also had the bible, and knew from its pages that when one people wanted to execute tyrannical rule over another people they disarmed them. The Philistines cleverly forbade the art of the blacksmith so that no weapons could be forged in Israel.
"Now no blacksmith could be found in Israel for the Philistines said, 'Lest the Hebrews make swords or spears." 1 Samuel 13:19
The Founders gleaned from the bible that God did not want people to be oppressed and that there were times when a free people would need to fight to preserve their freedom. Fighting is not done without the weapons of war, and hence we read that the Hebrew people were again being oppressed, this time by the Ammonites who were forbidding the Hebrews to rebuild their temple, and they are exhorted by Nehemiah,
"Do not be afraid of them; remember the Lord who is great and awesome, and fight for your brothers, your daughters, your wives, and your houses." Nehemiah 4:14
The Hebrews further resisted their oppressors:
"Those who were rebuilding the wall and those who carried burdens took their load with one hand doing the work and the other holding a weapon. As for the builders, each wore his sword girded at his side as he built, while the trumpeter stood near.." Nehemiah 4:17-18
In further keeping with the spirit of citizens bearing arms, and specifically to the point of a militia, Nehemiah instructs the people,
"At whatever place you hear the sound of the trumpet, rally to us there. Our God will fight for us." Nehemiah 4:20
Hebrews Building While Defending
Legal Precedent for the Second Amendment
Those are some of the historical, and moral precedents used by the Founders to justify the Second Amendment. Just as important, there is a legal precedent found in the English Bill of Rights from 1689. A theme I would like to return to from time to time is this understanding that the genius of the Founders lay not in complete originality, but in their ability to borrow from history, those elements of government that worked best and to compress them into a coherent, workable, durable treatise; one that has endured for some 227 years.
This so called English Bill of Rights was an act of British Parliament that secured, mostly for itself, certain civil rights. Among them are freedom of speech and the right to bear arms. Sound familiar? There is a catch. In this document, the rights just mentioned apply to two specific groups, not the entire citizenry.
- Parliament was to be guaranteed freedom of speech, not the people.
- Protestants were allowed firearms, but not Catholics.
Both of those freedoms were modified and expanded upon under the American Bill of Rights to grant freedom of speech to all citizens and to allow gun ownership, not just to Protestants, but to all citizens.
Catholics were viewed with suspicion as being potentially dangerous to the crown as they were thought to owe full allegiance, not to the British king, but to the pope. (Similar suspicions endured even until the 1960 election of JFK as he too was a Catholic) For that reason they were denied the right to gun ownership. The British have a longstanding habit of denying the right to own guns. In the 1920's the British, in control of Palestine, disarmed the Jews living in the region and armed Arab factions leading to several one sided slaughters. Similar discriminatory actions have been made more recently, in the early to mid 20th century, against Catholics via the British government.
Like the extension of free speech to all citizens, the Founders were extending the right to legal gun ownership to all citizens. We do not argue, as some do, that there should be absolutely no regulation regarding gun ownership, taking a completely literal stance on the reading of the Second Amendment meaning that no limitations whatsoever should be placed on the gun owner, that in a strict reading of the text, the citizen could own a tank or Pershing missile. I find it hard to believe that the Founders intended such an interpretation to prevail, and indeed it has not. Mostly, Americans are somewhere in the middle. Extreme sectarians range from belief that only law enforcement and the military should possess firearms to the other extreme that the average citizen should be able to possess a full armamentarium. While I do not advocate the idea of me or my neighbors having access to claymore mines and mortars, neither do I subscribe to the false idea that the government would always win in a battle against a citizenry complimented with small arms. Just ask the Russians how accurate that thinking was in regard to their 10 year war in Afghanistan or our own trouble with militia and guerilla style fighters in Vietnam. Small arms alone can be a powerful dissuader to a larger, stronger aggressor.
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In his book, The Bill of Rights, Milton Meltzer wrongly asserts,
"The purpose of the Second Amendment, as its language clearly shows, is to insure to the states the right to maintain an armed militia. It has nothing to do with the personal ownership of guns, as the courts have repeatedly upheld."
I always pause whenever I hear or read someone mentioning how "clear" a text or document is. What I see "clearly" in the text is "the right of the people to keep and bear arms." If the Founders intended for the Second Amendment to apply only to the states for the upkeep of militias it would have said as much, but it doesn't. For Meltzer to be correct the Second Amendment should simply omit the language regarding "the people," but it doesn't omit it. It's right there in plain English, "the right of the people to keep and bear arms, shall not be infringed." We cannot know to what extent the Founders hoped the citizenry would maintain its armaments. Indeed how could they have known there would be weapons capable of traveling 2,000 miles and annihilating entire cities?
We can be sure of two things.
- The Founders intended the citizenry to be armed.
- They intended us, their descendants and historical legacy, to reason through our options and understand the best application of this Second Amendment. The very flexibility of the amendments informs us that they didn't have all the answers. In addition to their wisdom, knowledge, and insight, the Founders possessed real humility.
Please keep an eye out for the next installment of this consideration of the U.S. Bill of Rights: The Third Amendment.