The Second Amendment – A discussion
By Stafford “Doc” Williamson
The Second Amendment to the United States Constitution, it seems, is never far away from the pro-gun people who are my friends. The anti-personal weapons have a good point, too. Gun violence in the United States of America is both tragically high and in total contrast to almost every nation on earth that does not allow guns to be freely available to members of the public. The mere definition of “gun” can bring out some dividing line that typically ends at a line surrounding suburbia, and those more accustomed to living a “farm life” or on a ranch, or other more isolated locations including small towns where the neighbors all have “sporting” rifles for both the “sport” of hunting allowed game in season and to protect themselves and their families not from roving bands of hostile street gangs but from predators who are taking a bite out of their means of making a living. Wolves, especially in packs, wolverines, coyotes especially in packs, mountain lions, bears and a number of others including foxes in the hen house, or even packs of feral dogs that kill indiscriminately for anything that might be their food.
A good and dear friend of mine asked fairly recently, specifically to spark a discussion, if there was any reason for a person to own an assault rifle. Again the definition for “assault rifle” comes into play because “assault rifles” are usually called “automatic” weapons, and rarely, if ever does any gun toting person actually a have a genuine “automatic” weapon because those are illegal to possess in the United State. Indeed, another friend told me that even owning a kit to change a semi-automatic weapon into a genuinely automatic is a felony, although they are easy enough to get via several different means. An automatic weapon would mean a weapon is an “automatic” if you can hold down the trigger and it fires as rapidly as the weapon’s mechanism will allow until all the bullets in the gun are gone and it is time to reload. Semi-automatic weapons include ordinary .22 caliber rifles that fire one bullet, then eject the casing, and load another bullet into the chamber, using the gases released when the weapon is fired. The “semi-“ part is that even though it had “reloaded” it will not fire again until the trigger is pulled a separate time, one for every bullet discharged. The answer then, to Michael’s question, in my opinion, is “yes”, especially if the “enemy” being faced is a pack of coyotes or wolves. In some cases, I can even see licensing genuine “automatic” firing weapons.
But does the Second Amendment really “guarantee” the right of the individual to “bear Arms”, and more specifically does it guarantee that such a right “shall not be infringed.” Just for quick reference, here is the entire 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.” In such a short clause there is no elaboration as to the meanings ascribed to these few words. That gives rise, somewhat surprisingly, to a lot of speculation over a few key meanings, the implications of which are the basis for many a discussion (okay, let’s not mince words, I should say, “argument”) on these points. Here are some of them.
The phrase, “the people” is sufficiently ambiguous to be interpreted as “every individual” (remembering that at the time, a person was only a full-fledged citizen if they were white, male and a landowner) or does it really mean, “the people” as a collective noun, meaning some organization or group(s) of people. (More on this one in a moment.)
The term “state” in the phrase, “the security of a free state,” can have a variety of meanings too. At minimum, it could be that the phrase intended “state” to be interpreted as “the nation”, which then offers the possibilities of the nation as a government, or the nation as a geographical unit (many, if not most wars are fought over territorial control, though very often with an undergirding of religious fervour), or did it mean, a state, in the sense of the thirteen colonies which were in the process of joining into a nation, so in effect each was an independent state. Then there remains the question of what constitutes a “militia” both then and now. I will return to militia in more detail later, but for the moment, let us consider the historical significance of “state” and “militia” taken together.
I have just read a rather academic paper which was included in the University of California at Davis Law Review journal by a Professor Carl T. Bogus (yes, that is his actual name) published in 1998. The article is 100 pages in length in the journal covering pages 311 to 408 (okay, so it is only 97 pages), of which nearly a full one-third of which is just the footnotes Professor Bogus includes, which also include some commentary on his sources in some cases. You can now sigh in relief that I am not trying to make this a strictly academic article (not that anyone except academics usually read the footnotes anyway). Professor Bogus points out that for the Southern (read “slave”) states, one of their greatest fears at the time following the revolutionary war, was that a strong federal government might turn the state militias into an instrument of the federal government, or worse yet, disband them altogether. It was a great fear because there were now many more black slaves than there were white property owners in some places (even though slaves were considered “personal property” in this case as opposed to just plain “property” which means real estate). White slave owners feared a rebellion by the slaves that would see them hacked to pieces in their own beds at night.
To prevent that possibility, property owners were obliged, as an extension of their militia duties (in effect) to ride “night patrol” the responsibility of which was to return runaway slaves to their owners, or kill them in the process if they were too difficult to manage. Since “night patrol” and “militia” were virtually the same people doing different things for these states maintenance of a “strong militia” in the sense of the individual state militias was crucial to their willingness to enter into this national partnership of a federalist government under a constitution, until and unless a bill of rights contained certain guarantees, one of which was just such a clause, indicating that each state had the right to maintain a militia without too much interference from the federal government, especially because Article 1 Section 8 of the constitution authorised Congress, “to provide for organizing, arming and disciplining the militia,” which in effect says that the federal government was responsible for the creation of the militias. More specifically it also says that Congress may call out these militias to “suppress Insurrections and repel Invasions.” This historic perspective is one which argues strongly that the states were the ones whose right to bear arms would no be infringed. Southern states feared that abolition of state militias would leave them subject to a bloody slave rebellion, and equally, destruction of their entire economic base. They wanted to be sure that the abolitionist leaning Northern states did not have some giant loophole through which they could rain destructive effects on their Southern neighbours.
Since it was the case that only about fourteen percent of the population (excluding hundreds of thousands of slaves) actually owned guns, and of those, probate records show about half of that sparse number were listed in “not working” condition the effectiveness of state militias was questionable at best. Militias provided by the state were offered to assist General George Washington, but he refused to accept them because they had shown themselves to be almost entirely undisciplined, poor shots, and prone to desertion, in many cases simply out of boredom. The idea of a rag-tag militia standing up against a standing army [the British] or an army of foreign mercenaries [the Hessians] seemed hopeless, despite their recent role in defeating the British and mercenary Hessian troops to win the revolution and freedom from the tyranny of the British King.
In one place, returning regular soldiers and militia men faced an economic downturn following the war of independence. They felt that they were being taxed into bankruptcy, essentially the same justification of taxation without representation that led to the revolution itself. Thus began a rebellion of citizens who were considered a militia, although they were not formally constituted as such, the incident became known as “Shay’s rebellion.” The initially small group swelled as it moved about causing mayhem, some sources putting the eventual peak of participants at one hundred men. This uprising was fairly quickly controlled, as with today’s self-appointed militias that try to opt-out of recognizing the authority of the federal government, fairly typically survivalists, tend to be small, like the participants in Shay’s rebellion. Although Professor Bogus distinguishes quite nicely between state militias and the whole country militia consisting of every able-bodied white man, but even so, with less than 14% owning guns, and only half of those in working condition, it was fairly clear that at that time a militia was no match for a professional army despite the recent success, partly because being ill-equipped and untrained any rebellion was usually limited to those in the immediate area, expressing local concern about local matters. There never was an instance in which the militia of the whole country attempted to rise up to throw off the tyranny of the instantiated government in Washington. That still remains the case.
But it was also true that standing armies, in general, were considered to be potential instruments of intimidation to enforce the tyranny of those in power. The evidence was clear. That was how King George had used his military in enforcing the edicts from the crown and eventually fighting the battle for America (or rather “against” Americans, except that they were not actually “Americans” until after the Revolutionary War).
Let me pause here a moment to look at the contemporary version of the American “militia”. We would probably, generally, consider the various state’s “National Guard” to be their militia, which like the militias of post-revolutionary America can be called upon to fight for the country in wars, or to provide aid to disaster victims whether in their own state or far away. The National Guard, as the name implies is an instrument of the federal government, but also, as the more detailed description indicates, (e.g. The Montana National Guard,) the state has some control of those groups as well. The federal government supplies the equipment the National Guard uses as is provided for in the constitution. So those who might expect or hope that a national militia or state-based militia might be an instrument to control and limit, or to eliminate a national government that had turned tyrannical, are mistaken. But now comes the “sticky” part, as the British might say.
If, as some believe, the purpose the founding Fathers was to establish militias as a guard against tyrannical behaviour on the part of our own government or against invading forces, it would be the very kinds of guns (assault rifles and large magazine guns) that people are trying to have banned that could make the militia of the whole into a viable counter-revolutionary force. In fact, the militia would probably need resources comparable to our “standing army” even though that army is less than one-third of a percent of the population. At this moment, the weapons belonging to the National Guard are, in effect, owned by the federal government, and hardly available to throw off the mantle of tyranny.
What mantle of tyranny, you might very well say. Isn’t the government structured on the basis of balance and shared responsibilities by three branches of government? Let’s take a look at that for a brief moment. Remember too that I am an American citizen by choice. I was born in Canada, long, long ago, during the ice age (well, to me it was the ice age, and that was one of the main reasons I left). But at the time when I came to the United States to live, my (unabashedly liberal) Canadian friends told me, “You don’t want to go there now! They just elected Ronald Reagan. He’s a cowboy and there is no telling what he will do to the country, especially with his attitude toward the Soviet Union.” Reagan’s somewhat far-fetched idea of a “space-based missile defense” seemed to confirm my Canadian friends’ suspicions. When that President’s two terms were over, the population chose as its next supreme leader a man who was best know (outside the USA, at least) as the former head of the CIA (not one of the world’s favorite institutions, since it has long been known that the CIA played an active role in fomenting several revolutions and coups around the world). The Canadians heaved a collective sigh of relief when the liberal President Clinton was elected (and the British, I can tell you from my conversations in Britain at the time, were just mystified why anyone cared about the Presidential sex scandals that seemed to have turned into a witch hunt in the USA. Those happened almost daily somewhere in Britain or somewhere in Europe.) But then we got another Bush, and that was followed rather quickly by the attack on the World Trade center, the greatest loss of life since the bombing of Pearl Harbour. George W. Bush and his associates took it to be a declaration of war, except that it was not a declaration of war from a country, it was “terrorists”. This brought on a panic attack within the government, especially because they so easily deposed and defeated the government of Afghanistan that had offered safe haven to Osama Bin Laden and his al Queda fanatics, but they didn’t get bin Laden at that point, and it seemed a puny response to the loss of so many American (and other) lives. So they picked on Saddam Hussein and Iraq which actually offered some financial advantages, especially to Vice President Dick Cheney whose background was in the oil business (and hadn’t they just handed a humiliating defeat to Iraq while driving them out of Kuwait?). Despite the cost of thousands of American lives, much discussion of the costs of the Iraq War, and how President Obama mishandled the withdrawal (actually it was the Bush administration who had already failed to arrange for any troops to remain in Iraq at the time of the withdrawal), having a “big” war was a great economic stimulus to the industrial manufacturing segment of the American economy, it was just concentrated in the military manufacturing sector. Defeating and deposing the Taliban government in Afghanistan took only a few months, and hardly had any economic effect at all, although extending the hunt for bin Laden and declaring that Taliban was an insurgent force made it into Obama’s “good war” as opposed to the Iraq war that he promised to bring to a close. Oddly enough, no one blames President Clinton for the World Trade Center attack, yet the fact that Clinton’s military strategy for retaliating against the first attempt on the World Trade Center (a car bomb in the underground parking) and the attacks on embassies in Africa was to send cruise missiles to where they believed bin Laden was hiding in Afghanistan. He missed, and the World Trade Center destruction appears to some people to be the al Queda retaliation for the attack on bin Laden. But I digress in what must already seem a long way about to arrive at a relevant point. Here it is.
In order to detect and defeat non-state agents of an opposing force, Bush and Congress passed the “Patriot Act.” This is not an uncommon reaction of military confrontation, although it is often called something like the “War Powers Act” (but only Congress can declare war, and they were not ready to do that on a non-state actor like al Queda). The 1941 War Powers Act actually gave President Roosevelt broad powers to organize and conduct the war effort, but that was after Congress had actually declared war. The Patriot act was broad and sweeping in its scope especially because no official state of war actually existed. It granted previously unprecedented powers to law enforcement and military agencies. It is not so surprising that these powers were unprecedented. They specifically trampled rights that had been appended to the Constitution of the United States as protections for the citizens of the United States, and as interpreted by the courts over two hundred years.
In particular, the FBI was granted special exceptions to normal warrant procedures which included post-reporting of surveillance rather than obtaining a warrant in advance as is normally required. Of those post-reported 763 warrants only 3 were issued officially naming “terrorism” and another 3 for “conspiracy” the rest were broad, far-reaching attempts to gather intelligence on drugs, fraud, weapons, tax and extortion and racketeering according to the Report of the Director of the Administrative Office of the United States Courts covering October 2007 to September 2008. The FBI were allowed (and one of the first mass gathering of “intelligence”was) to search the borrowing records of every library in America, of all the library users and what they had been reading. When the Patriot Act came up for renewal (as it did more than once) Senator Bernie Sanders, with the support of the ACLU and the American Library Association, introduced an amendment to remove this provision from the Act. It was defeated. Meanwhile, the “meta-data” of numbers called by every telephone and every cell phone in the country were being recorded to be able to “extract patterns” of calling which just might be indicative of terror cell activity, and at the same time the NSA was given the power to intercept and record any overseas telecommunication involving an American citizen. The convenience of which was aided by the cooperation of all the major long distance companies, and the routeing of which, since virtually all long distance calls were passing through the United States, in effect gave the NSA the right to do so to any telephone call they cared to scrutinise. There was a kind of redefinition of Habeus Corpus (part of the right to representation and a speedy trial)(such a provision is allowed under the Constitution in times of “war”, but there was no declared state of war at the time), and to avoid the protections under the Miranda provision, anyone taken prisoner was declared an “enemy combatant” (but without being in military uniform not the protections of captured soldiers under the Geneva Convention) and shipped off to either a “rendition” site, sometimes in a third country with less stringent laws about torturing prisoners to obtain information, or to the famous detainment center on the Marine base on the island of Cuba, where again, as “enemy combatants” they essentially had no rights whatsoever. These kinds of elaborate machinations were, at least some recognition that in the United States laws existed that still granted people rights (citizen or not) fairly clearly amount to some rather broad suspension to the rights granted by the “Bill of Rights” amendments to the constitution.
Nor should the mention of Senator Sanders be taken as a political slant, because it was President Obama who promoted the great urgency to renew the Patriot Act when it came up for renewal again in 2011. He urged that it be passed without any additions or delay, despite the fact that in 2003 and 2005, before he was in office, he was adamantly opposed to it. Political winds blow stronger in the Oval Office and the West Wing, one would likely have to surmise from this. Nonetheless, it mitigates the concept that the measures of the Patriot Act were as Machievalian as they might otherwise be construed.
At the same time, both the effect and the fact that specific Bill of Rights protections were seized by the Administration for purposes of circumventing their effects (at least amendments 4, 5, 6, 8 and 14 according to my estimate, and others claim more instances of even more violations) as well as what appears to be a bill of attainder creating a whole class of persons from whom rights are denied without trial or conviction, it is not difficult to see through the lenses of people keeping a close watch that these were steps, potentially large steps, towards a tyrannical government. It is possible, too, to see that one might perceive these extraordinary measures could readily be extended to encompass a deeply rooted form of Marshal Law or other fascist government steamroller when the imbalance of partisan politics of all three branches of government tilted toward a single party including both houses of Congress, all of which seemed comfortable with giving up rights and freedoms for a little increase in security. That is not necessarily to say that these were, in fact, such steps, but they doubtless could be perceived by some as a validation of the concept that the Second Amendment was intended to be a double-edged sword for the purposes of repelling tyranny from foreign invasion, but also from tyranny from within as a result of undemocratic policies and actions of a previously elected and properly constituted government of the country itself.
If that double edged sword intent exists in the wording of the Second Amendment, and it is quite apparently vague without definitions or reference from which to draw meaning to the brief phrases (except perhaps in the contexts discussed here) it appears to me that the Second Amendment is designed to protect the right of the people to retain the weapons of revolution of sufficient potency that they could, or would be able to throw off the shackles of any tyrannical government. Specifically, that means individual ownership of weapons of war. I don’t recall where I saw it, but, as I read somewhere recently, “You don’t ‘bear arms’ against a flock of birds.” I remind you here that the weapons of the “militia”, defined narrowly as the various states’ National Guard units, are actually almost entirely on loan from the federal government, which might be the object of the attempt to overthrow tyrannical governance, and therefore not available to “the people”. I, therefore, take the Second Amendment, in our current context and under the structure of “militia” established, to be protection for owning the very kind of “assault weapons” that anti-gun-violence campaigners wish to abolish.
However, no one, and especially not I, wishes to convey that the right to bear arms extends individual rights to include torpedoes, howitzers or shoulder-fired missiles. Many of the philosophical and legal principles espoused by the framers and amenders of the Constitution have endured the test of time, and the crucible of the courts but the simple language of the Second Amendment has left its clear and full intent in the past. We need to write a better, workable Second Amendment and substitute that for the current obsolete clause.
A good deal more thought still needs to be applied to what our contemporary society wishes to convey in a constitutional amendment covering this topic. We need to consider, especially, the fact that the lack of specificity of the language of the Second Amendment has led us to an impasse, but also that we need to avoid such a degree of specificity that we narrowly define weapons that hurl projectiles and electrical charges (i.e. “stun-guns”) but neglect particle beam weapons or other technologies which may exist in the future that we cannot today foresee.
In the meantime, however, we need to regulate possession and use of firearms. The tens of thousands of deaths in the USA annually, comparable only to nations engaged in nations caught up in revolutions and rebellions where only boundless immorality rules and the bodies stack up like cordwood in the urban battlefields. The sad fact is that if the violence of a single weekend in the United States was geographically concentrated into a single battlefield, the numbers of dead bodies would stack higher than almost any comparable period in those war-torn nations. Stricter regulations regarding guns is not an “attempt” to collect and destroy private citizens’ weapons. That is a boogeyman myth propagated by the NRA and the gun manufacturers designed to create fear about an “unknown” future. All of the future is “unknown”, and as Roosevelt said, “We have nothing to fear but fear itself.”
If we can survive the deep dive into the injustices of the Patriot Act carving off (one would hope, temporarily) so many pieces of so many of the Bill of Rights amendments, surely we can make an effort and still avoid apoplexy if we put in place limits on Second Amendment rights that save thousands of American lives every year. Can’t we?
Stafford “Doc” Williamson