History Geek
I will come as no surprise that I am a history “geek”. I participate in some “boards” online discussing all sorts of American History, from the Revolution to Afghanistan. Like most discussions in our polarized world today, our current political divisions seep into almost every topic. Do you like George Patton as a military commander? Was he a “good” general who said all of the wrong things, a “leader” who slapped an enlisted man, a manipulator who was willing to risk his forces for his own ego? Does he sound like a recent American President?
So it wasn’t a surprise that when the topic was about the mechanics of a particular kind of gun, the “true-believers” in the Second Amendment descended in mass to make their point. That Amendment to the Constitution of the United States is brief:
“A Well Regulated Militia, be necessary to the security of a Free State, the right of the People to keep and bear arms, shall not be infringed”.
Infringing
Their first point was that the Amendment was absolute: “…the right…to keep and bear arms, shall not be infringed”. Any regulation of arms, from handguns to automatic weapons is an “infringement”. They believe there is an absolute right to have any type of weapon.
Justice Robert Jackson made a common sense argument in 1949 about any Constitutional right: the Founding Fathers did not write a “suicide pact”. They were well aware that every right had its limitations. As Justice Holmes said about the First Amendment: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (By the way, the outcome of that case, US v Schenck, was that the defendant went to jail for criticizing the military draft during World War I and causing “a clear and present danger”. Brandenburg v Ohio redefined that finding).
Both Holmes and Jackson were making the point that no “right” is absolute. The interests of the state in maintaining order and safety must also be weighed in any discussion about “rights”. And the Supreme Cour takes that view about arms. It allows certain weapons to be banned (you can’t have your own rocket propelled grenade launcher). And it regulates others like fully automatic weapons that are heavily licensed and taxed.
US Code
Usually arguments about the Second Amendment end there – haggling around the extent the government can restrict and control gun ownership. But in this “board” discussion the argument continued over the first clause of the Amendment, that “good old” well-regulated militia.
They pointed to the definition of “militia” as established in US law (10 USC §311):
a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32 , under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are–
1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Their simple argument is that every male citizen (or intended citizen) from seventeen to forty-five is “in” a militia. So they are all entitled to full, unfettered Second Amendment rights. That was the absolutists “mic drop” moment. While they did leave out about half the population (women) they argued that the US Code closes the deal on the idea that somehow the “militia” clause modifies the “right to bear” clause. Every man is “in” the militia so every man gets “their right to bear arms”.
Suicide Pact
James Madison, the author of the Bill of Rights, wasn’t a lawyer. But he did have a Princeton University education, and considered himself a “student” of the law. And Madison was well aware of the dangers of an “unregulated militia”. Shay’s Rebellion was a “citizen’s militia” attack on the government of Massachusetts. It helped bring about the Constitution in the first place. And the Whiskey Rebellion against Federal taxes, was going on as he introduced the Bill of Rights to the Congress.
Madison did not waste words in his Constitutional writings. The term “well regulated” was intentional, to require state control of a what today we would recognize as the National Guard. And Madison would easily parse the difference between organized state militias, and an unorganized mass of citizens waiting for a draft like the one that Mr. Schenck opposed. “Unorganized” is NOT well regulated. (Now do I get to drop the mic?)
The Winner is – Today
Nope – the mic belongs to the “absolutists” – at least for today. In the most recent Supreme Court decision on the Second Amendment in 2008 (District of Columbia v Heller), the Court narrowly agreed with the infringement argument. They detached the militia clause in a five to four decision, saying that it didn’t influence the absolute right to bear arms. And that marked the turn of the Supreme Court towards a more conservative view, one that is playing out today in the current legal debate about the Roe v Wade and Casey abortion decisions.
The debate about militias and the Second Amendment is now “settled law”. Just like a women’s right to access abortions. But as we know, when it comes to rights – nothing is settled anymore. Just hold you’re mic, and you’re breath.
The “infringers” win, at least for today.
