Tuesday, July 8, 2008

A brief thought about militias and the 2nd Amendment from Boston

It has been a long day in Boston, so I'll keep it short.

Yesterday at the Visitors' Center at Minute Man National Park on the Battle Road between Lexington and Concord, I watched (for probably the third or fourth time) The Road to Revolution media presentation.

I was struck, all of a sudden with one of those bursts of clarity that represents either insight or delusion.

Thinking about it all day today, however, I believe it holds up.

Here's the 2nd 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.

Not to rehash, but you know the argument that this amendment was somehow intended to secure the right to bear arms only in the context of a well regulated Militia, which is almost always considered to be a State-organized institution.

Therefore, the right to bear arms is not about my personal right to own any firearm of my choice to protect myself, or--if necessary--shoot at tax collectors or British regulars.

But here's the problem for that interpretation: The Militia being referred to in the first clause of the sentence was a creation of the People, not the State. The Militias that took part in the running battle between Lexington and Concord in April 1775 had, for the most part, actually been organized in defiance of the British colonial government. They elected their own officers. [And in the intellectual/historical world of the Framers it is important to recall that these Militias pre-dated the existence of the United States government.]

That term regulated is primarily synonymous in eighteenth century usage with the modern term organized, rather than suggesting government supervision.

The phrase being necessary to the security of a free State is too often interpreted as being synonymous with something like being necessary to the defense of a free State. This is not, in late eighteenth-century parlance, what that was intended to mean. It would have struck veterans of the American Revolution as something closer to being necessary to the defense of our freedoms within the State. Even during the eighteenth century (perhaps especially then), the Framers would have understood that individuals--even if armed--could hardly counter-balanced despotic power.

Armed individuals self-organized into Militias could. The lesson most American historians choose to learn from the Revolution, at least in terms of military history, was that citizen-soldiers could fight off professionals under the right conditions. [See Henry W. Halleck, Elements of Military Art and Sceince, for a nineteenth-century example by a professional military historian.]

But citizens could not organize into Militias if the government had the power to seize their weapons as individuals.

Thus, the Second Amendment actually consists of two parts: a philosophical statement about the maintenance of freedom in the State, and a legal injunction.

A well-organized Militia being necessary to the defense of our freedoms within the State, the right of the people to keep and bear arms shall not be infringed.

What's interesting is that from the Whiskey Rebellion through the Civil War and forward into the middle Twentieth Century no serious effort--intellectual, philosophical, or legal--was made to use the Militia phrase as a reason to convert the 2nd Amendment from an individual right to a group right.

I have not loaded this post down with links and references because I'm sitting in a hotel far from the reference works of my library. However, feel free to post any material from sources contemporary to the period that would dispute this reading.

There are--perhaps--good arguments for gun control (although I've yet to hear too many that actually represent well-considered public policy rather than fear and ignorance).

Even if you fervently believe that the right of individual American citizens to keep and bear arms should be infringed, you do not have the right to change the meaning and sense of the sentence in late 18th-Century terms to do so. Argue that times have changed. Argue that the Framers never expected automatic weapons.

But please don't give me the untenable line that the Framers of the Constitution and the Bill of Rights intended to protect gun ownership only in the context of a State-controlled military force.

Because that's just not true.


Anonymous said...

All states are ultimately backed by force (guns) wielded by the owners of the state. In the US, the people own the state. So why should the people not have guns?

The criticism that the "people" are an unruly mob is an old aristocratic European criticism that we should not be resurrecting and repeating against ourselves. To the extent that the criticism is true, let's work to make it less true.

kavips said...

Thanks for providing "my" moment of clarity.