Is it time yet?
The Second Amendment to the United States Constitution is not complicated. It’s easy to understand, if understanding is desired, and it’s best understood through the lens of those who wrote it. A review of their place in history will facilitate that understanding.
America was still an infant nation when The Constitution was written in 1787. The Continental Congress existed only long enough to wage war on the British. The Congress of the Confederation acted as a national government, but had no means of enforcing laws and little real power. The American Revolution had allowed the former colonies to become free states, but they were wary of ceding authority to a central government. They knew it was perilous to stand alone, but there were still doubts about being part of a larger nation. The founders had no real experience of a democratic government. They couldn’t know how well their constitution would serve the people, but they did have a very real fear of a centralized government such as the English monarchy.
The United States was conceived as a group of states bound together for purposes of defense and commerce, but who remained free to manage their own local affairs. The Constitution provided a framework for those individual states to be united as an actual country. It was intended to provide a careful balancing of local and national authority. The need for a state militia was obvious. Local and state forces are needed to enforce order and protect the citizenry from outlaws, hostile natives, or insurrection. However, individual states couldn’t justify the expense of a standing army. So, the members of the state militia were often private citizens who owned their own muskets and came together as needed for the common defense.
With an understanding of the background, it’s easy to read the Second Amendment as written and take it at face value. A formal militia is necessary for the security of the individual states, and those militias should not be under the control of the federal government. This is the simplest, most direct, and most reasonable interpretation of the text. It merely limits the power of the federal government.
The framers of the constitution had no compelling reason to add specific protections for gun ownership. Muskets weren’t found in every household, but they were common enough to be accepted as a fact of life. There was no more reason to add an explicit right to gun ownership than an explicit right to own an axe or to keep and wear shoes. There are many similar rights that were commonly understood and accepted, but not explicitly included in the constitution. These unenumerated rights are referenced in the ninth amendment.
Some of these unenumerated rights that seemed obvious in the 18th century are no longer accepted at all. The right to own slaves is one example. Slavery has a huge impact on society, but the framers didn’t bother to include it in the constitution because it was commonly understood and accepted. A constitutional amendment was required in order to rescind this ‘right’. Similarly, the right to own firearms could become unacceptable and a constitutional amendment could rescind this 'right', as well.
The Second Amendment was understood as written for ninety years, and the first challenge to come before the Supreme Court in 1876 upheld the original meaning. The Court acknowledged the right, but said that it existed separately. They ruled in United States v. Cruikshank that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence.”
The next challenge, in 1939, also upheld the original meaning. The Court said clearly that the Second Amendment was about military arms rather than private gun ownership. They ruled in United States v. Miller that the amendment "protects arms that had a reasonable relationship to the preservation or efficiency of a well regulated militia."
By 2008, the idea of citizen-soldiers bearing muskets and assembling for the common defense seemed archaic, something for historical dramas, not for real life. So, a conservative Supreme Court decided that the established precedents could be ignored and they redefined the Second Amendment to suit their own personal opinions. In District of Columbia v. Heller, the Court ruled that the Second Amendment "codified a pre-existing right" and that it "protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home".
The Court of 2008 erred intentionally by ignoring prior precedent. The Court of 1876 was only three generations removed from the framers of the constitution. They had a similar life experience and mindset. Their opinion of what the founders meant carries far more weight than the opinion of those separated by 220 years and vastly different life experience. Even the Court of 1939 could remember a childhood without automobiles or electricity. Their opinion is also more valid than that of the Court of 2008.
“I may not agree with your decision to kill your neighbors, but I will defend to their death your right to shoot them.”
This is how Justice Antonin Scalia should have explained his reimagining of the Second Amendment when he wrote the Heller opinion in 2008. Instead, he made a fallacious argument that the phrase ‘bear arms’ could be taken out of context, redefined, and then used to justify private ownership of firearms. He noted that the phrase ‘bear arms’ could refer to an individual hunting deer as well as to a soldier serving in the military. He then asserted that if the phrase could have multiple meanings, then it must have multiple meanings.
A study of linguistic usage, described in the February 2020 issue of Atlantic Magazine, suggests otherwise. The authors of the study used a database of documents from the 1700’s to show that the phrase ‘bear arms’ was rarely used outside the military context. More than 90% of its occurrences concerned military service. It’s unlikely that the writers of the amendment used it to refer to private firearms. Scalia went even further by asserting that the phrase ‘shall not be infringed’ doesn’t merely limit federal regulation, but also prevents the states from banning guns individually. This interpretation is completely opposite to the framers’ original intent of allowing the states to conduct their own affairs without federal interference.
The Second Amendment should be considered as a whole, and it’s obvious that it does not confer rights to individuals, but defines the right of the states to provide for their own security. Unfortunately, there is no quick or easy way to correct the errors in Scalia’s opinion. A reversal of the Heller ruling would require hearing another, similar case, and there's little chance of a different ruling today. The current Court is even more conservative than in 2008, and their political loyalties are likely to override their common sense. At the time of this writing, they’ve accepted a case that could expand the definition of self-defense such that firearms could be carried anywhere, at any time, by just about anybody. Chief Justice Roberts declined similar cases when the Court had a liberal majority, so it seems clear which direction he’s leaning.
Thirty thousand people a year can’t live with the current level of US gun regulation. And, no reasonable person would argue that the framers of the constitution intended to create a culture of death. They'd be aghast at the obsession with guns that fosters mass murder, rampant suicides, and tragic accidents. It’s clear that we must move beyond ‘thoughts and prayers’ and take effective action to reduce gun violence. The questions are: what level of gun violence is acceptable? And how do we get there? We have several examples to consider.
The United Kingdom has extremely strict gun controls, virtually banning private firearms. Their approach has resulted in a yearly death rate less than 2 percent that of the US. Australia has slightly less restrictive gun laws than the UK and brought their yearly death rate down to 7 per cent that of the US. Canada implemented controls similar to what has been proposed in the US and brought their rate down to 15 percent that of the US. There are common themes in all three of these countries; private handguns are banned, legal firearms are closely tracked, and self-defense is not considered a valid justification for owning a firearm.
The Second Amendment no longer serves its original purpose, nor does it serve the needs of a modern, civilized society. What was once a necessity of frontier life, and then a pleasant hobby, has become a scourge to the American people and a stain on our national honor. The Second amendment has become a club to beat back efforts to reduce gun violence through effective regulation. It has become a hindrance to life and the pursuit of happiness rather than a help to liberty. And, the gun lobby has made it painfully, fatally clear that there will be no effective gun regulation as long as the Second Amendment stands. That means it’s time for repeal and replace.
We must adopt a 28th amendment to fully define which firearms are and are not allowed in a modern society with modern technology. We can use the test of what is commonly understood and accepted to find a middle ground that will allow for responsible ownership while drastically reducing the amount of gun violence. It may not be reasonable to ask hunters to go back to muskets, but it’s even less reasonable to allow ‘enthusiasts’ to own fully automatic weapons or to use land mines for ‘self-defense’.
Hunting is the most reasonable use for privately owned firearms, and there’s little doubt that hunting with reasonable weapons should be retained. When I was a young man, we hunted big game with bolt action rifles that held five rounds. Bird hunting was done with a double-barreled or pump action shotgun. Hunting with a semi-automatic military style weapon was considered unsporting. And, in any case, there is little chance of an animal remaining in range long enough to make even a third shot of any use, let alone a 10th or 20th. Hunters have no need for semi-automatic weapons, and a new amendment banning them would go a long way in reducing the number of gun deaths in America.
Private ownership of hand guns is less clear-cut, but I believe that they too, serve no reasonable purpose in a modern society. Self-defense is the most common justification for owning a handgun, but it doesn’t hold up under scrutiny. There are hundreds of murders and accidental deaths for every valid incident of self-defense. Would any reasonable person accept a vaccine that killed hundreds for every life it saved? Of course not, and we shouldn’t be deceived by the self-defense argument for handguns. Simply banning handguns could decrease gun violence in America by as much as 80%.
An over-represented and overly vocal minority holds America hostage because of the Second Amendment. The only reasonable path forward is ‘repeal and replace’. This would allow the people as a whole to define the acceptable role of firearms in a modern society. Owning guns is no more sacred than owning slaves. The 13th amendment ended slavery. The 28th could finally end gun violence.
I understand the appeal of guns. I’ve hunted game and fired on targets. I get the sense of protection that comes from a 4’ 11” woman being able to end a 250-pound man with a simple point and click of her .38 special. I get the exhilaration of having the god-like power to kill at any time, for any reason.
I understand what we’re giving up, but that’s what responsible people do. Good people make sacrifices; for their families, for their friends, and for their countries. Let’s be responsible people. Let’s make a sacrifice for our kids. Let’s take action to prevent school shootings. Let’s give up our guns.