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What the Majority of Founders Really Meant by the Outdated Amendment #2

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As I explain in part in a new article (click here) the gun industry/lobby that has been behind the perversely successful effort to convince a large portion of Americans to back packing weaponry originally crafted to slaughter enemy armies is trying to pull some fast ones.

One gun rights myth is that gun regulations don't do any good, or are outright bad for lawful citizens. The argument is that cities and states that have lax laws and lots of guns at worst do not suffer more homicides, and at best have fewer murders because armed ne'er-do-wells are deterred when law abiding citizens are packing heat too. It is an opinion so pernicious that David Brooks reiterates it in his New York Times column and on the PBS Newshour as sociological truth. Which it absolutely is not. The USA has the highest rate of gun ownership on the planet, we are ahead of Yemen and Somalia. And the USA has by far the highest homicide rates in the first world. All western nations where guns are much less common enjoy remarkably low levels of murder. Check out the graphic plot in click here Even in the USA the data indicates that more guns and less regulations tends to result in more deaths (click here). Nor is it likely to entirely be a coincidence that homicides have declined in this nation at the same time as has gun ownership (despite the efforts of the gun promoters).

Another trick the gun people are playing is to say that gun laws can't stop determined mass shooters. Yes, but laws against murder don't stop murder. Laws and regulations are not intended to put a total stop to the target activity in a democracy, they are meant to tamp down crimes as much as possible while not impairing personal liberty more than necessary.   

That brings us to the gun rights myth that this essay will address in detail, the proposition that the sacred Constitution of these United States enshrines gun ownership as an individual right for purposes of personal protection and the defense of liberty. Why is this not so? Because there is something distinctive and important about the 2nd Amendment that suggests the intent of the founders was more complicated. It is the only right in the Bill of Rights that is predicated. By a governmental need. Think about it. The other rights are just given, without qualifications. Such as "The right of the people to be secure in their persons, houses, papers, and effects" shall not be violated"" And "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial""

But that's not how Amendment II begins. It starts with "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." Because pro-gun people tend to be anti-government people they're prone to drop that awkward-for-them beginning from their most precious amendment (lots of gun folks say the heater amendment is the most important in the Bill of Rights -- never mind that it is number two behind those trifles about freedom of speech and a/theism). The preface is absent from the NRA headquarters that sports a truncated, government free alternative reality for public view.

That amendment number two is the only one predicated by a government need means that it is the only one that is as much about the government as it is about the individual. Here's what happened. As you may recall, in 1775 the British Crown decided it was a good idea to seize the arms stored by colonial militias in the greater Boston area. They were not going around knocking on folks' doors to take their personal muskets and pistols. Later, when the founders were writing the Constitution, they did not want the want the democratic federal regime they were setting up to stage future Concords and Lexingtons. So they banned the feds from going around seizing the arms of militias that were properly regulated by their states. That's why the Massachusetts state constitution declared in 1780 that "The people have a right to keep and bear arms for the common defence"" (see www2.law.ucla.edu/volokh/beararms/statecon.htm for a listing of state's gun rights). Same for the 1776 North Carolina provision "That the people have a right to bear arms, for the defense of the state"" How about Virginia that in 1776 laid the foundations of the federal version with "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural and defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed"" Far from being endorsing a right to self-protection, they are centered on collective security. That is what the 2nd amendment is about.

Had the amendment been designed give citizens a right to own and bear guns for their own purposes, then it would have read something like Pennsylvania's 1776 constitutional provision "That the people have a right to bear arms for the defense of themselves and the state"". Vermont said the same thing next year. So why isn't the 2nd Amendment a blanket individual right to tote guns?

Fact is that some of the founders were kind of nervous about an armed citizenry. One of the fears was that the democracy could slip into chaos if angry and armed mobs decided to try to rule by the gun rather than the ballot -- just look at how things soon went south in France. This disquiet about what the masses might try to pull off was all the more acute because most of the founders were from the economic elites. So they punted on this constitutional right, so much so that they went to the trouble to mention a "well regulated militia," as governmental a line as you can get. With a number of the founders wanting an across the board right to possess weaponry, and with others leery of going that far, the 2nd amendment ended up being exactly the kind of political compromise that many on the right loath as denying individuals their full liberty to do what they please aside from murder, assault, rape and theft. But the gun industry and its lobby cannot admit that, so they drop the government predicate of the amendment when they can get away with it, and do intellectual loop the loops when they have to try to explain it away.

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The reason that militias are mentioned in the Bill of Rights is because they were a big deal in those times. For much of the 19th century young citizens were often required to serve in their state's militias. If you read a history of Civil War military actions there is frequent mention of state militias integrated into the armies of North and South. But militia service was widely unpopular, many saw it as an uncomfortable waste of time which it largely was, and in many case militias became undisciplined men's' clubs with little discipline or training. And the 1% continued to be nervous about the armed masses. So for these assorted reasons the militia scheme was abandoned in favor of the more tightly run National Guards, that were often ensconced in those castle like urban armories designed to hold out against the rebellious mobs.

As new states were formed in the 1800s some remained explicit about gun rights being about the common defense. As per Arkansas in 1868 that stated that "The citizens of this state shall have the right to keep and bear arms for their common defense" (this replaced the racist -- and sexist -- 1836 original that started with "That the free white men of this State""). Here is an interesting case from Colorado in 1876 that incorporates both individual and collective protection with a twist on the former the gun lobby must gag upon, "The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called into question: but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." The last clause is by no means unique to Colorado.

As a firearms industry bent on selling as much of its product as possible increasingly pressed to make gun rights into an individual thing, state constitutional statements on the matter tended to become more what the gun lobby wants them to be. Here's an excellent example of this phenomenon. When made a state in 1959 Alaska declared like the Feds that "A well regulated militia being necessary tot he security of a free state, the right of the people to keep and bear arms shall not be infringed." That was before the NRA became the extremist right wing organ it soon was. In 1994 the following was added. "The individual right to keep and bear arms shall not be infringed by the state or a political subdivision of the state." Well that's funny. If the classic version really is all about individual gun rights, then why the addition? Because the gun lobby knows that the 2nd amendment is nowhere close to being what they need it to be, that's why. Recent state constitution declarations tend to be along the historically radical lines of Nevada in 1982 that "Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes" Unlike the 2nd Amendment, that one is all about the individual with nothing about collective defense. We must again ask why, if the good old 2nd Amendment really is an unambiguous grant of absolute individual gun rights, why are recent state constitutional declarations so different from what the founders came up with, and why do they feel the need to go to such explicit efforts to detail the rights? Because the 2nd Amendment does not provide the rights the gun boosters want it to.

The recent Supreme Court denial of what amendment number two literally says, a decision straight out of the gun industry/lobby that overturned decades of prior court decisions that had actually been based on what the clause really says, was a radical right wing reformulation of the amendment. One that exposes that the justices who claim to be "originalists" that supposedly strive to parse out what the majority voters at the Constitutional Convention really intended, are just pulling our legs when it comes to their supposed doctrine. If the court conservatives strictly applied originalism they would have acknowledged that gun rights stem from a governmental necessity, that for better or worst the latter therefore has the authority to strongly regulate their possession and use, and that giving citizens a stronger individual right to pack arms would require a constitutional amendment. Instead the conservative wing of the court just did what they wanted to -- the clique applies originalism when it fits their desires, and are willing to quietly drop the theory   does not match their immediate convenience.

The other problem with the constitutional right to bear arms has to do with what arms were back then versus what they are now. In the late 1800s a pistol was a single shot muzzle loader, a portable Rube Goldbergian device with limited killing potential. When the trigger was pulled the possibility that the thing would misfire was high. If the flintlock mechanism actually did work the imprecisely manufactured ball literally bounced its way down the barrel from side to side and upon emerging who knows what way it would go. In videos skilled shooters take the old timey pistols and show how they are hard pressed to hit a human target even at close range. Assuming the first shot did not get the job done, reloading was a multi-step procedure that took about a minute -- assuming the other guy did not do something to stop the process or fled the scene.

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A modern pistol is a weapon of mass destruction. One that the individual can conveniently carry without those nearby being aware of the potential danger. In a few seconds an automatic like a Glock can emit 15 rounds that will each hit within an inch of the aiming point. To further improve accuracy a laser pointer mounted on the gun can conveniently light dot the chest or head of the victims. A dozen can be maimed or killed in a moment. A handy magazine reload takes a few seconds. Or use a 30 round magazine as the shooter did in Tucson in 2011. Automatic rifles are even more deadly because they fire larger, higher velocity rounds -- remember that force equals mass times velocity squared -- but they are fortunately harder to conceal. Special magazines can accommodate 100 rounds (the Aurora shooter was equipped with one of these super-sized magazines, but it seems to have jammed, saving lives). Calling modern firearms weapons of mass destruction is not propaganda, it is literally correct. Automatics were designed expressly to equip soldiers to liquidate masses of enemy soldiers. Heater lovers think it a could idea that civilians be armed like soldiers.

We will never know for sure, but if the founders who devised the Second Amendment could be gathered together and shown what mass produced, mass firing automatic firearms can do, and how the USA suffers from by far the highest levels of homicide among the advanced democracies where guns are more tightly controlled and less common, it is likely that most of them would be even more prone to tying gun rights to governmental needs. One can hope so.

Moderates, especially politicians, who want more serious firearms regulations while not upsetting the gun lobby too much are prone to saying that we can have both sensible controls and our full constitutional rights at the same time. This is true only in the context of the limited rights actually contained in the 2nd amendment. What is not true is that we can have the practical and to be blunt extensive regulations that help suppress homicide rates to amazing lows in other 1st world countries on the one hand, and have the free wheeling gun rights that the heater lovers imagine the Bill of Rights grants them on the other hand. If we have the former the gun people are going to be really mad. We cannot have our cake and eat it too.   

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Gregory Paul is an independent researcher interested in informing the public about little known yet important aspects of the complex interactions between religion, secularism, culture, economics, politics and societal conditions. His scholarly work (more...)
 

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The Second Amendment guarantees the First Amendmen... by Ralph Fucetola JD on Friday, Jul 27, 2012 at 10:54:46 AM
illusion of the goodness of government instead of ... by Mark Adams JD/MBA on Friday, Jul 27, 2012 at 12:49:32 PM
We are number 4 in the world regarding Murders w... by Anne Ruppert on Saturday, Jul 28, 2012 at 2:37:36 AM
According to Gunpolicy.org: Country Pop.(millions)... by Paul Rye on Saturday, Jul 28, 2012 at 12:26:50 PM
from 2011.  Furthermore, your source cites th... by Mark Adams JD/MBA on Saturday, Jul 28, 2012 at 1:07:01 PM
Good for you.  I am (was) in the process of m... by Randy Fritz on Friday, Jul 27, 2012 at 11:14:35 AM
Hillary is under orders for BHO to sign the U.N. S... by J. Dexter Smith on Friday, Jul 27, 2012 at 11:34:43 AM
Look at the FBI records, Gregory.  2011 conti... by Robert James on Friday, Jul 27, 2012 at 2:13:14 PM
After every tragedy involving guns, there is a kn... by Mike Kimball on Friday, Jul 27, 2012 at 3:05:10 PM
You're a shill for Billary and Obummer.  If w... by Arianna Marie Cigolini on Saturday, Jul 28, 2012 at 10:24:44 AM
The argument that the 2nd amendment is about a col... by Darren Wolfe on Saturday, Jul 28, 2012 at 1:16:12 PM
"All western nations where guns are much less comm... by Paul Rye on Saturday, Jul 28, 2012 at 2:34:09 PM
It is a brief but thorough analysis that everyone ... by Mark Adams JD/MBA on Saturday, Jul 28, 2012 at 5:43:46 PM
The only thing slowing these monsters down is the ... by Robert Tracey on Sunday, Jul 29, 2012 at 12:48:56 AM
It is quite apparent the left would rather govern ... by Bill Johnson on Sunday, Jul 29, 2012 at 10:49:35 AM
If every attendee in the Aurora theater had been c... by Mary Wentworth on Sunday, Jul 29, 2012 at 11:16:31 AM
The founding fathers would see the coup that has t... by whole2th on Sunday, Jul 29, 2012 at 11:39:40 AM
I posted a detailed reply to the preceeding commen... by Gregory Paul on Saturday, Aug 4, 2012 at 12:52:53 PM
Try to address your replies to comments here. You... by Mike Kimball on Wednesday, Aug 29, 2012 at 8:25:40 PM