The Right to Keep and Bear Arms?

There is, perhaps, a certain dullness in taking things at face value, in reading text as though the words meant what they said. We are, we suppose, conservative in our effort to understand the words of the Second Amendment according to their plain and literal meaning. We indulge in no flights of imagination.

We do not, for example, argue that, since the militia of the 18th Century were composed of the people, the two words are synonymous and interchangeable so that the Second Amendment can be read as though it said that the Militia being important to a free state, the right of the militia to keep and bear arms shall not be infringed. Nor do we imagine that, although the founding generation thought the two clauses of the Second Amendment to be closely linked - indeed mutually interdependent, the Fourteenth Amendment implicitly severed the link, awarding the right to bear arms as a privilege and immunity to the newly liberated black people, while leaving the obsolete militia clause to wither. And it goes without saying that, in our pedestrian respect for the written Constitution, we can not simply ignore half the Amendment, and argue that the right to arms was a constitutional recognition of the sporting pleasures of hunting and the manly virtue of self-defense.

Rather, we take the position that the Second Amendment was to the founders a vitally important provision, expressing distrust of the professional standing army (which was the handmaiden of the European tyrants), and providing that, whatever was said in the body of the Constitution about the military arm of the new government, the people still relied on local units, comprising all eligible citizens, trained and regulated, armed with their own weapons. And further, the Amendment served notice that no jealous organ of the central government should ever try to weaken the people's army by making laws depriving the eligible citizenry of their weapons. The implicit republican virtue of service, celebrated in this Amendment, was a precious remnant of a social ethic being fast supplanted by the elements of a liberal democracy. But the provision of the Second Amendment was not a post-enlightenment credo in disguise. It did not glorify personal access to arms, nor the right of the people to keep arms to protect themselves against the government.

Perhaps our central theme is the evolution of the military institution known to the founders as the "militia." Stressing as we do the right to arms as an enabling feature of the militia, we could not avoid the question: where is the militia on today's landscape? If there is any life to the militia in modern times, perhaps the scope of the right to keep and bear arms in service thereof bears some close examination, and generous interpretation. We give little serious attention to the claims of various small, dispersed groups of self-styled militiamen, taking target practice in the woods while sporting battle fatigues, and spouting their own brand of libertarian patriotism. But we must take more seriously the status of the National Guard who, to many, are the rightful heirs and descendants of the militia of old. So a substantial portion of the book is taken up with a genealogy of the citizen's army. We conclude that our armed state/federal troops of the 21st century no longer bear any genetic markers of the militia envisioned by the founding generation. The defining characteristics of the militia as originally understood were compulsory service by all eligible men, training and organization, occasional service as required, and strong responsibility to local command. And, of course, the Second Amendment assumes that members of the militia would be self-armed. While we hesitate to say that the constitutional militia is obsolete, we do conclude that it is dormant.

It is conceivable that circumstances might arise in the future where a militia meeting the 18th century description might arise, and the Second Amendment would once again forbid any effort by the federal government to disarm them. But, as things stand, there is no such military force and, accordingly, the Second Amendment sleeps. We are aware that there are people who do not like to think that any of the sacred provisions of our constitutional decalogue are silent, inapposite in today's world. Most - maybe eight out of ten (a surprisingly large number) - of these wise and well written provisions are fully applicable and important in the American society of today. But not all. Think, of the Third Amendment forbidding the quartering of troops in private residences in peacetime. And there may be one that - by its terms, at least - should probably be allowed to retire (it is one of the scant few that are not binding on the states), and that is the Seventh that guarantees a trial by jury for all civil cases where the amount in controversy exceeds twenty dollars.

Where this leaves us in the current controversy regarding gun control is simply stated. We do not think that the Second Amendment has any bearing on the question of whether guns should be freely available or sharply controlled. The Amendment is simply irrelevant to the issue, as important as that issue might be. And that leaves the matter completely in the hands of the political branch. And we think this is not an uncomfortable position. The people must decide .by legislative choice many important aspects of their lives together in civil society. The wisdom, effectiveness, configuration, and moral virtue of gun control is not an inappropriate matter for the expression of popular sovereignty rather than constitutional control. Moreover, diverse resolutions of the enigma are not antithetical to a federal society such as ours.

Thus, to paraphrase the Second Amendment without altering its meaning, we understand it thus: "So long as [or inasmuch as] a well-regulated militia of the whole people stands as our preferred military protection in a free society, the Congress shall make no law disarming those citizens of the weapons necessary for their military duties. While the cases before the Supreme Court on this Amendment have been few and old, no case had ever resolved the issue contrary to this reading until the year 2001. In that case, Dr Timothy Joe Emerson was convicted of possessing (and threatening to use) a Baretta following a pro forma court order of protection in a domestic dispute. The United States District Court agreed with his argument that the Second Amendment guarantees Emerson's right to keep a gun. While not entirely coherent, the Court of Appeals for the Fifth Circuit endorsed this view of the constitutional provision in 2001. The Supreme Court declined to review the case. So we are all waiting for another court to present an opportunity for the High Court to declare the modern meaning of the Second Amendment. When that occasion arises, we hope the Court will heed our argument.