Historical insight

[unixronin]

"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."

The arguments about the meaning of the Second Amendment are near-continuous, even since DC v. Heller.  Possibly the three most oft-repeated arguments invoked to weaken it are attempts to narrowly define the meaning of "arms", attempts to argue that "the People" actually means "the States" when used in the Second Amendment, and arguments that the prefatory militia clause, rather than being explanatory, is rather a condition, and that it is no longer true.

To get a clearer insight on this last, we can shortcut much argument by simply considering the original draft form of the relevant passage in the Bill of Rights recommended by the Virginia Ratifying Convention, in June 1778:

"That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

It's pretty clear from reading this that the keep-and-bear clause stands on its own, and that rather than being a necessary condition for it, the militia clause is actually a benefit enabled by it.  The draft then goes on to explain why a citizen militia is felt to be superior, in time of peace, to a standing army, but recognizes that this is not always possible by amending the qualifier "as far as the circumstances and protection of the community will admit".  No such qualifier — indeed, no qualifier whatsoever — is amended to the keep-and-bear clause.

Any questions?

Comments

[jmkelly.livejournal.com]

I withdraw the first question as too dependent on the abilities of particular armed forces and the fortunes of war. Now that I think about it, how come gun nuts (I mean that in the nicest most respectful way) never bring up the Viet Cong as an example of what a citizen army can do? I think I may offer a prize for anyone who submits a recording of a liberal in one breath dismissing the chances of a citizen yeomanry against a well-equipped professional army and in the next dismissing the US Army's chances against the insurgents of Afghanistan or Iraq. You won't catch me doing that -- at least not now that I've thought of it!

I think you're arguing from stereotypes when you say the Constitution would be much longer and less comprehensible had lawyers written it. The Founders may not have been lawyers on the whole, but they certainly were on the half: 35 of the 74 delegates were either lawyers or had some legal education (according to Wikipedia), so the writers either were lawyers or had lawyers literally at their sides, and were well aware of the possible consequences of poorly-drafted language. They had to carry the language back to their states and get ratification, so brevity and simplicity may have taken a higher value than is usual in lawmaking. Finally (as I've mentioned before) sometimes it's useful to be vague when you're trying to get agreement.

I wouldn't be surprised to hear our government say that there's no need for the Second Amendment because the government has our best interests at heart; it's already said the same to support warrantless wiretapping, indefinite detention without charge, torture, and other violations of the Fourth, Fifth, and Sixth Amendments. Nor would I be surprised to hear a gun-control advocate argue that our hypothetical "tyranny" language was an anachronism; no one has a monopoly on special pleading.

It's interesting that the Second is the only amendment in the Bill of Rights with an explanatory clause. All other rights are declared without comment, as obviously good in themselves. Evidently the majority of the Founders felt there needed to be some justification for letting every Tom, Dick and Harry run around with a rifle. Also, the qualification of the militia as "well-regulated" implied that this right required some governmental supervision, sometimes called "gun control." (There, I knew I could make you spill your coffee!)

[unixronin.livejournal.com]

It is indeed a truism of military strategy that a trained and well-equipped insurgency supported by the civilian population is almost impossible to defeat via conventional military force. Not impossible, but almost.

"Well-regulated", in the language of the time, has an inobvious meaning, though. The word 'regulated' has more than one meaning. Contrary to popular belief, the phrase "well regulated" in the Second Amendment doesn't refer to restriction. In the context of the time, a "well regulated militia" was one whose members were adequately equipped and trained in the proper use of arms. (As separate from a body of troops raised and equipped as a distinct unit and drilled in military tactics, which was referred to as a "select militia", though select militias too would, one hopes, necessarily be well regulated. State National Guards, for example, would have been considered select militias.)

[jmkelly.livejournal.com]

Yes, I think the inobviousness (?) was intentional -- "well-regulated" has a wide range of meanings. Maybe I'm being tendentious, but it seems to me restriction is a necessary part of regulation. A well-regulated militia must exclude the ill-trained, the mentally unstable, those whose guns are so shoddy or ill-maintained as to pose a danger to others (other than legitimate targets, of course) -- those are all restrictions that no reasonable person would dispute.

I think I can finally see where I'm heading with this, and I think it puts me in the same ballpark with the Supreme Court in DC v. Heller: the most defensible interpretation of the amendment is that the people's right to bear arms may not be infringed, AND it is properly subject to regulation -- by the State, who else? -- which is a neat balancing act, but plenty of laws are like that. Reasonable regulation is a town big enough for both of us, though we may not always find ourselves in the same neighborhood.

While I enjoy this discussion, I kind of wonder if we're losing perspective. Our right to own guns doesn't matter that much when the government (and much of the populace) thinks it has the right to tap our phones, read our mail, throw us in jail on no charge at all, violate habeas corpus, and torture us. DC isn't allowed to declare itself a gun-free zone, but the government is allowed to designate "free speech zones" (what does that make the other zones?). Maybe we should be trying to stop this behavior in the first place -- with votes, demonstrations, letters and lawsuits -- recalling the government to the rule of law -- rather than relying on private arms to deter it, or escalate it once it's started. By the time a half-dozen thugs have broken down your door and started throwing flash grenades, waving a gun is unlikely to make any positive difference; you're much better off keeping the thugs off the government's payroll.

[unixronin.livejournal.com]

While I enjoy this discussion, I kind of wonder if we're losing perspective. Our right to own guns doesn't matter that much when the government (and much of the populace) thinks it has the right to tap our phones, read our mail, throw us in jail on no charge at all, violate habeas corpus, and torture us. DC isn't allowed to declare itself a gun-free zone, but the government is allowed to designate "free speech zones" (what does that make the other zones?). Maybe we should be trying to stop this behavior in the first place -- with votes, demonstrations, letters and lawsuits -- recalling the government to the rule of law -- rather than relying on private arms to deter it, or escalate it once it's started. By the time a half-dozen thugs have broken down your door and started throwing flash grenades, waving a gun is unlikely to make any positive difference; you're much better off keeping the thugs off the government's payroll.

Can't argue too much with that. But have you considered the possibility that widespread gun ownership has kept the government from being so blatant about it that they trigger a popular uprising?

Our government has been a very poor steward during this century of our rights, our liberties, and now of our financial well-being (yes, I know, proximally speaking the banks did it, but the government relaxed the laws to allow them to do it in the first place). People have been trying to recall the government to the rule of law — using, as it is said, the soap box, the ballot box, and the jury box. But what do you do when those three fail, if the populace lacks the ability to take matters into its own hands and take back its government?

So far, it has not become necessary to do so, except on a local scale. GIs returning from World War 2 to McMinn County, Tennessee had to take it back by force from a corrupt county government that had taken it over and was maintaining power through rigged elections and armed intimidation, after petitions to the US Government to monitor the elections and ensure their honesty went unanswered. (http://www.constitution.org/mil/tn/batathen.htm)¹ But when I look around me, I see the time coming in our future when either Americans will rise up and take their country back from their government, or the vast majority will admit that when the government, however bad it may get, says "Jump", the only answer they have the courage and resolve to give is "Yes Sir, how high Sir?"


[1] And even back then, the New York Times' coverage excoriated the GIs for taking the law into their own hands, because it couldn't or wouldn't see that the rule of law had already been violated, and feared the idea of citizens taking it back by force. Honestly, I think this is a large part of the problem — the media has set up a situation where the government can largely do what it wants, and those who resist, however right they may be, are viewed by the public as wackos, which then only emboldens the government further. Contrast the press coverage of Ruby Ridge, Idaho to what really happened — "crazed survivalist engages in unprovoked war against the US government but is defeated by patient and heroic FBI agents" vs. "government besieges a peaceful white separatist who hadn't broken any laws² and just wanted to be left alone, and murders his family during the siege". To quote Jonathan Karl, "Don't call Randy Weaver paranoid. His worst fears about the government have already come true." See also Garrison Keillor's observation - "It's as bloody as Shakespeare but without the intelligence and the poetry. If you watch television news you know less about the world than if you drank gin out of a bottle."

[2] He was charged with a Federal weapons violation after a BATF agent tricked him into shortening the barrel of a shotgun the agent had bought from him (concealing the fact that he was a government agent) 1/8" below the legal minimum, which charge the BATF then used to try to blackmail him into infiltrating the Aryan Nations Church for the BATF at great personal risk, but a court later ruled that he was innocent of the charge because he had been deliberately entrapped into the technical violation.

[jmkelly.livejournal.com]

I think private gun ownership has been both a deterrent and an incitement (as at the Branch Davidian compound), but I'm not going to argue which aspect has predominated; that's for historians. Certainly firing shots attracts attention, sometimes to good effect.

"Rather than" was maybe a poor choice of words -- I was tired. I think it's best to use the full panoply of means and tactics available to us, as the McMinn County veterans did. To my mind, "well-regulated militia" entails both arms and a commitment to the rule of law. I think we agree on that.

I'll add for free that non-violent action can also be powerful, as we've seen in India, the Southern US, South Africa, and the Philippines. Not all-powerful, but powerful.

"Rather than" came though my fingers because I fear that while we debate the Second Amendment, the First, Fourth and Fifth are being shredded. I think the loss of any right makes it harder to defend the remaining rights; our rights are gradually being eroded in ways no gun can address. I think we should pay some noisy attention to that.

I can't resist quoting Eleanor Roosevelt, whose opinion on the McMinn County fracas was published in the Daily Post-Athenian:

"We may deplore the use of force [by the McMinn County veterans] but we must also recognize the lesson which this incident points for us all. When the majority of the people know what they want, they will obtain it.

"Any local, state or national government, or any political machine, in order to live, must give the people assurance that they can express their will freely and that their votes will be counted."

[unixronin.livejournal.com]

The Waco incident, frankly, is another example of the government completely screwing things up, then blaming people who are no longer around to defend themselves after the fact. The local Sheriff said that the ATF/FBI people handling it were complete idiots, and that if they wanted to talk to Koresh about a technical weapons violation, all they needed to do was have him call Koresh, and Koresh would have come right into town to his office to deal with it. But ATF didn't want to do it the easy way; they wanted to Make An Example Of Somebody. They wanted a Big Front-Page Win For The Home Team. What they actually got was a rolling clusterfuck.

"Rather than" came though my fingers because I fear that while we debate the Second Amendment, the First, Fourth and Fifth are being shredded.

A viewpoint on which you won't hear a second of argument from me. It's just that the attempts to preserve the First, Fourth and Fifth (and Tenth) don't get as much press. "Designated free speech zones"? Give me a fucking break. What comes next, a Free Speech permit? $1000 application fee required 90 days in advance to allow for the background check?

Eleanor Roosevelt understood. It's a shame our present generation of legislators (a) have no integrity, and (b) appear to be unable to learn from the lessons of the past.

I do not want to see armed insurrection in the United States. But I think our government is too collectively stupid and greedy to stop before they push people into one.