Thursday, August 8, 2019

The Antiquated Second Amendment

One of the most confusing, misunderstood, and misapplied pieces of the Constitution is the 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.” As an editor, I admit that this is a rather pathetic attempt at lucid English. Which is why it has been subject to so many tortured interpretations over the years and has in recent years been twisted by a conservative court to mean something that two hundred years of court precedent repudiate.
So, let’s talk about this troublesome sentence. Most conservatives simply take the second half out of context and make a blanket right out of it. But the first half provides the context. The right to bear arms is guaranteed within the confines of the need for a well-regulated militia and for the purpose of securing the freedom of the state. So, the right to bear arms, as a constitutional matter, has nothing to do with hunting or self-defense or, especially, enabling us to fight against the national government if we find ourselves at odds with it.
As explains, however, two things have changed significantly since the eighteenth century: the militias mentioned in the amendment have been absorbed into the national military and the types of weapons used in military conflict have changed drastically. No longer are they the types of weapons individuals carry for lawful purposes such as hunting or self-defense. What this means, in plain English, is that the Second Amendment is completely outdated and antiquated. The circumstances under which it was created have changed and the concerns it was written to address no longer exist. So, we’re stuck with some obsolete verbiage that we twist in a partisan manner to suit our own points of view. What we really need is a common-sense revision of the Second Amendment that would enable us to pass sensible legislation that will prevent most of the mass shootings we experience on a continual basis.
Let me make three other points. First, an editorial I read not long ago explained that the phrase “bear arms” is a term we use only in reference to military situations. As the writer put it, you don’t bear arms against a rabbit. Bearing arms is, as the Second Amendment suggests, a military matter. In other words, keeping and bearing arms is not synonymous with just owning a gun for nonmilitary purposes. Therefore, the Second Amendment does not strictly prohibit the government from regulating the ownership of weapons that are not used for military service. At the time of its writing, it prevented the government from restricting citizens from owning “arms” that could be used in well-regulated militias at need. These militias were essential because the National Army was small and inadequate for a full-scale war. This is why regular citizens such as Martin Harris were conscripted for short-term skirmishes during the War of 1812. And members of these local militias used their own weapons.
But times have changed dramatically. We no longer rely on local militias. We have a massive, well-armed standing military, and so, as I suggested above, the Second Amendment, as written, is irrelevant to our current society. We do not need citizens to own military-style weapons so that they can fight our enemies at a moment’s notice. Indeed, the unrestricted ownership of these killing machines is one reason why we are seeing such carnage in our public places by a few unhinged and deluded lunatics.
And this leads to my second point. Most people simply assume that the rights enshrined in the Constitution are inviolable. But rights are always attached to responsibilities. We only enjoy rights as long as we do not abuse them. Freedom of speech is not an unbounded right, even though it too is protected by the Constitution. I do not, for instance, have the right to say certain things in certain places. I also do not have the right to board a commercial airplane without going through a thorough and invasive search of my person and belongings. If I try to carry my little Swiss Army knife onto a plane, I will be searched, and the knife will be seized. Why? Because of the act of one or two demented terrorists. Therefore, such searches and seizures are no longer considered “unreasonable” (see the Fourth Amendment).
The right to bear arms should be subjected to similar interpretation. As a society, we have long passed the point at which we, collectively, have proved ourselves capable of using guns responsibly. On average, over 36,000 people are killed by guns in America each year and another 100,000 are injured. Yes, I know, you would never shoot anyone indiscriminately. But an increasing number of Americans do not exhibit such perfect discretion. I maintain that we have forfeited the right to own any sort of gun we want to own because of our irresponsible behavior. Just as I cannot simply walk onto an airplane with my pen knife, I should not be able to just go buy a gun. I have to obtain a driver’s license and prove that I know how to drive before I can operate a car. At a minimum, we should require the same level of regulation for using a gun.
Final point. As so many have insisted in the past week, the right-wing rhetoric about mental illness and violent video games is bunk. Other countries have equal levels of mental illness and play violent video games. Only in America do we have semi-weekly mass shootings. Gun homicides in America are 25 times higher than any other high-income country. The difference? Lax gun laws. Similarly, the argument that more guns will create more safety is more than flimsy. We already have 393 million guns in America, spread among only 326 million citizens. If this talking point is right, we should be the safest country on earth. Obviously, this is nonsense.
I have an ultra-conservative neighbor who has claimed on social media that gun ownership is a God-given right. I don’t believe her family even owns a gun. But such is the power of tribal persuasion. We are both LDS, but I have to wonder if her God is the same as mine.


  1. Chicago's experience demonstrates that your "solution" is ineffective. TSA as justification for dismantling the 2A is just leftist sedition.

    1. Chicago's experience is that a large percentage of the guns used in the city's crimes are purchased in Indiana and other states with lax gun laws.

  2. The banality of the assertion that gun control is the solution to gun crime is rivaled only by its imprudence. The fundamental problem with gun crime is the crime, not the gun.

    That said, I will gladly support gun control provided the policy meets three conditions:
    1. It is constitutional.
    2. It is effective.
    3. It won't discourage my wife's ability to defend herself from an armed attacker.

    I am as anxious as you to decrease the amount of violent crime in our communities. Please identify a policy we can both support.

    (To preclude the obvious question, I do not have any ideological commitment to any interpretation of the 2nd amendment. I defer to current SCOTUS interpretation.)

    1. Gun control works for almost every nation that practices it.
      My point was that the Second Amendment is antiquated, which is why the constitutionality of gun laws is inadequate.
      The recent SCOTUS interpretation overturned 200 years of precedent. So which interpretation do you defer to?

  3. He/she who shoots first usually wins, politically correct revisions to the fictional history of one Han Solo notwithstanding. The obvious solution is to make it nigh into impossible for other people to be able to get in the position of taking the first shot.

    1. Maybe we can declare that mass shooters have to be as accurate in their aim as Imperial Storm Troopers. That would be more effective than any legislation Republicans will vote for.

  4. What interests me in your analysis of the 2nd Amendment is how you ignore the rationale of the 5 jurists on the Supreme Court who disagree with you and your reliance on Left Wing web sites for your understanding of the 2nd Amendment. I do not believe that the 2nd Amendment does not allow for reasonable time, place and manner gun restrictions to exercise of the right. What I find alarming is your dismissal of the 2nd Amendment as an antiquated provision that should be ignored and re-read to apply only to the right of those in the military to "bear arms." Your argument is nonsense because the meaning is precisely the opposite: the 2nd Amendment was intended to provide for allowing people to take up arms against the existing military and militias and so limiting the understanding of arms protected by the 2nd amendment to militias entirely misunderstands what was being protected.

    1. So, Blake, what is your solution to stopping mass shootings? What is your solution to the fear I have for my grandchildren who attend public schools? Is the current SCOTUS interpretation of the Second Amendment more sacred than the lives of American citizens? I'm just curious what you would say to the parent of a child killed in a school shooting. Would you offer thoughts and prayers but say there's no way we can get assault weapons out of the hands of ordinary citizens because of the sacred Second Amendment and a conservative interpretation of it? Do you really think that the Framers of the Constitution would have written the Second Amendment as it now stands if they could have seen our day and the weaponry and carnage we have in our society? Do you really think they were that callous?