Abolish the Anachronistic Second Amendment!
For some years now, after one horrific mass-shooting and another, many liberals begin their lamentations and calls for more reasonable gun control with a de rigueur introductory qualification, “I support the Second Amendment, but…” or “I support the right to bear arms and I own weapons myself, but…” Here are my own bona fides: I grew up around guns and hunted as a youth with my father; I am an expert shot with an M-16 select-fire rifle as deemed by the U.S. Army, and I have the medal to prove it, and I own a rifle and have it on display (empty of ammo) in my house. I also believe the Second Amendment is an anachronism and ought to be abolished. The prescribed “right” to bear arms is by man’s law, not by any natural law, not intuitively derived, and not mandated ex cathedra by any Abrahamic tradition’s sacred text. And prescribed rights can be un-prescribed.
The amendment was part of the Bill of Rights, the original ten amendments to the United States Constitution, with wording virtually lifted from original state constitutions written before the Constitution (ratified in 1788). During the Revolutionary War era, “militia” referred to groups of men who banded together to protect their communities, towns, colonies and, once the United States declared its independence from Great Britain in 1776, individual states. The Second Amendment is concisely stated:
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.
During the Colonial era, a militia was a group of citizens who were not professional soldiers or part of a standing army, and who gathered together as necessary to defend the community against untoward, outside forces, and, more specifically, in the Revolutionary era, against the British. It was a common perception among colonists before the Revolution that British soldiers of the regular army oppressed the citizenry, and there was also a general suspicion and loathing of standing armies and centralized power. After the Revolution, many in the country believed that a regular Army should be raised by the federal government only when necessitated to defend against foreign adversaries, and otherwise, that citizen soldiers armed with their own weapons (slow-loading muskets were used at the time and well into the 1840s) would be called when necessary to defend the local community. But it became apparent that loosely-organized citizen soldiers were not up to the task against the formidable British and its highly-trained professional troops, so the framers gave the new federal government the power to establish a standing army in peacetime. So-called Anti-Federalists were suspicious of such power, however, and argued that such a standing army would encroach upon a state’s right to defend itself against tyranny. As a consequence, after the Constitution was ratified in 1788, its principal author, James Madison, soon proposed the Second Amendment as one part of a Bill of Rights (1791) in order to empower militias and to prevent the federal government from disarming them by ensuring that individuals, citizen soldiers, would be able to keep their arms.
It is convenient for supporters of the Second Amendment to overlook the word “regulated” in the key phrase, “A well-regulated militia”–––much as it is for detractors to ignore the clause stating the purpose of a militia, namely, its “being necessary to the security of a free State”–––which as anyone knows who studied the period does not mean the freedom of the United States, but of the individual states within it. Now, clearly, the right for an individual to bear arms is undeniable by any literal or historical interpretation of the amendment. The reason for arming the individual is so the local community––a state––can defend itself against tyranny. No serious reading of the history of the period could cause one to conclude otherwise. With that said, the amendment, though pithy, is slapdash and ambiguous, and was drawn without full consideration of its ramifications, and, in particular, the changes in technology and the meaning of “Arms.” It seems likely that Madison intended the individual states to provide the regulations for the “well-regulated” militias, and that surely would impact how individuals possess and use weapons (as even Justice Scalia implied in Heller v. DC), but unlikely that he could have predicted the types of weapons that became available over the next two hundred years, including rifles, semi-automatic and automatic weapons, portable missile launchers–––let alone smaller nuclear devices or biological weapons. It seems unlikely that he would have wanted just any citizen to own such devices, and yet, all fall under the definition of “arms”–––and the word is not qualified or narrowed in any way in the sentence.
The fact is that a state militia of citizen soldiers, as conceived at the time of the Revolutionary War and the ensuing Constitutional Convention, is an unlikely opponent against the full might of the combined forces and armaments of the United States, today. And the picture of the lone individual NRA enthusiast emerging from his survivalist ranch with his AR-15 to defend himself against a stealth helicopter manned by jackbooted soldiers sent by the IRS or US Forest Service with missiles and 50-caliber machine guns seems far-fetched and even comically ludicrous.
The amendment is poorly worded. It does not account for modernity. So-called states’ rights were of course of particular importance to many of the men of the Convention, and especially those who wanted to protect slavery and the privileges it provided, which is to say, the men of the South. These motives were gussied-up with talk of the dangers of centralized powers and local democracy, but democracy could hardly be said to have been a paramount concern other than in a very limited, privileged sense, namely, that white men who had property should have a vote, which is to say, men like themselves. The American Civil War and the 13th, 14th, and 15th Amendments to the Constitution, and several court cases and legislation of the 1950s and 1960s, settled much of what these men sought to protect and to justify by “states’ rights.” And while I do not discount the utility of local control and the advantages of plurality, some things ought not to be negotiable at a state or local level, which is why we have a Constitution in the first place, for some laws ought to apply everywhere and ought to be very difficult to change, not only to protect the majority of citizens, but also to protect minorities against majorities. This brings me to my last points.
Michael Berumen is a retired business executive and published author on diverse topics including economics, mathematics, music, and philosophy. He has lectured to civic, academic, and business audiences internationally, and testified before the US Congress and local legislative and regulatory bodies as an expert witness. He has served on various boards of directors. Among other things, he is the author of the book Do No Evil: Ethics with Applications to Economic Theory and Business. A longtime Californian, he and his wife have live happily in retirement in Colorado