Life, Liberty…and the Right to Keep and Bear Arms
I frequently answer questions on Quora. With 368,000 views and about 14,900 upvotes (the equivalent of “likes”) in just shy of 21 months, It appears that there are some people think what I write is worthwhile.
There are many questions about the Second Amendment. Some are trolling; some are legitimate questions.
One person wondered why the Amendment was written with the militia clause and asked if James Madison wrote it in that way to create confusion.
Considering the amount of controversy that has raged over those first thirteen words, it is a fair question.
The militia clause that begins the Second Amendment is a prefatory clause. It defines a purpose, but does not limit the meaning of the operative clause.
For those familiar with the niceties of English grammar, the militia clause is a dependent clause. It contains a noun and a verb but cannot stand on its own as a sentence. It is also known as a subordinate clause.
To put it more simply, the Second Amendment says that having a militia is a good thing. In order to have a militia, the people must be able to have weapons. Therefore the government is prohibited from restricting their right to have weapons.
The Second Amendment doesn’t say the people must be able to have weapons strictly in order to serve in the militia. It says the people must already have weapons in order for there to be a militia.
Madison expressed his thoughts on the subject in the Federalist Papers.
“It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.
A reading of the late Justice Antonin Scalia’s excellent opinion in District of Columbia v. Heller will provide a marvelous clarification of both the meaning and intent of the Second Amendment.
Paradoxically, as fond as gun rights advocates are of invoking them, there really are no Second Amendment rights because the amendment doesn’t create a right.
Putting this in context, one must go back to the second paragraph of the Declaration of Independence.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Everybody knows about life, liberty and the pursuit of happiness. But almost nobody notices that they are only among those inalienable rights. Thomas Jefferson, who wrote the Declaration, was charged with writing a bold statement of principles, not a laundry list.
So how did Jefferson feel about guns? In a 1785 letter to his nephew, Peter Carr, Jefferson wrote, “As to the species of exercise, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun, therefore, be the constant companion to your walks.”
In Jefferson’s Commonplace Book, he quoted 18th Century Italian jurist Cesare Beccaria:
“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.”
Jefferson was also very conversant with the firearms technology of the day. He acquired two of the Girandoni repeating rifles for the Lewis & Clark expedition.
The First and Second Amendments address some of the inalienable rights Jefferson omitted when he penned the Declaration of Independence.
Both the First and Second Amendments are limits on the powers of the government. “Congress shall make no law…” and “…shall not be infringed” are both prohibitions.
This is because the right of free speech, the right to assemble, the right to be free of a state religion and the right to keep and bear arms were considered to be just as important as the rights to life, liberty and the pursuit of happiness.
This meant that the founders of the United States believed it was not only important to protect life and liberty, it was equally important to be able to defend against those who would take them, whether they be highwaymen, cutthroats or hostile governments.
Furthermore, those who espouse the theory that the Second Amendment applies only to the militia itself might be a bit less enthusiastic if they realize how U.S. law defines the militia. To these people, the militia is the National Guard. They’re partially right but significantly wrong.
The Militia Act of 1903 established, “That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age and shall be divided into two classes-the organized militia, to be known as the National Guard, Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.”
The 1903 law has been modified a couple of times, mostly to do with the length of service and funding but the definitions have remained the same for 115 years.
So, yes, the militia is the National Guard. It’s also the 58.6 million American males in the 18–44 age group. There are obviously some exclusions including those exempted by the act, those who are physically or legally unable to serve, and conscientious objectors, but it’s still a lot of people.
The government is only on the hook to provide equipment for people in the organized militia. The various organized militias are also the only ones required to be trained or “regulated” as mentioned in the Second Amendment.
It’s hard to imagine a situation sufficiently dire that the President would call on the Reserve Militia, but the President has the authority to do it.
Nowhere in the 1903 act or any of the succeeding legislation does it mention a source for the weapons for the Reserve Militia. Even though the pool of eligible people was much smaller then, the number still far outstripped the government’s arsenal.
But it doesn’t outstrip the American arsenal. As a nation (and thanks to the Second Amendment), we have enough guns to put one in the hands of every person called. But this is only because every American, with certain exceptions, is allowed to have guns.
Ironically, proof of the intent for the members of the Reserve Militia to procure their own guns comes from the opinion written by Justice James McReynolds in United States v. Miller (1939).
The Miller decision is often touted by gun control fans, including retired Supreme Court Justice John Paul Stevens, as proof that the Second Amendment applies only to a collective right. “Collective right” means the right to keep and bear arms is only valid in relationship to service in the militia, which these folks take to mean the National Guard.
Outside of wishful thinking, I am not sure how anyone came to that conclusion if they read the same opinion that McReynolds wrote.
“in the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
The only thing that McReynolds said was that, since sawed-off shotguns weren’t in regular use in the militia, the Second Amendment didn’t protect their ownership — without the payment of the transfer tax required by the National Firearms Act of 1934.
McReynolds himself said the ruling was very narrow. Had the case revolved around a Tommy Gun, the result might have been different as the Thompson submachine gun was well-established in common use by the regular army and the National Guard at the time.
In reality, the National Firearms Act of 1934 itself was held to be constitutional not as a gun control measure but as a tax revenue measure. The decision never said whether the federal government had power to ban guns, just that it had the power to tax them. Incidentally, the federal government still uses that power; there is an excise tax on the original sale of every firearm produced or imported in the United States. There is also a tax on ammunition.
McReynolds did cite state laws from the 17th and 18th Centuries regarding militias and the fact that such laws required those liable for militia service to own and maintain certain firearms, pikes, swords, powder, ball ammunition and bayonets and also required them to be rostered and trained, but every law he cited predated not only the Militia Act of 1903 but the first presentation of the Bill of Rights in 1789. In other words, the prevailing constitutional and federal law at the time McReynolds wrote the opinion included no requirements for training or registration.
So the only reasons for confusion about the Second Amendment are, first, that no one (teachers, parents, etc.) has explained it; second, that far too many try to obscure or reinterpret to their own liking.
This is why, having lost the interpretation battle in the Supreme Court, gun control advocates now wish for the modification or (preferably) the repeal of the Second Amendment. They don’t understand that the people would still have the right to keep and bear arms because the right doesn’t depend on the Second Amendment: it’s one of the inalienable rights of man.
It really is just that simple.
Originally published at Medium.com. Republished with permission of the author.