The Second Amendment
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.
These 27 words enshrined in the Bill of Rights as the
Second Amendment are considered sacrosanct by the majority of Americans.
But what do these words mean and do they have any
relevance in the 21st century? To help answer these questions we
need initially to define the meaning of some of the keywords.
· Militia
– At the time the Bill of Rights was drafted “Militia” were military forces
drawn from the citizenry. Men from sixteen to sixty were required to join a
company and train intermittently. They were also required to bring their own
musket.
· Well
Regulated – Today this would probably refer to some amount of governmental
rules and control in addition to being well trained; however, this meaning was
different in the 18th century. According to Alexander Hamilton, this
meant a select militia of only the most ardent men. Based on the Articles of
Confederation it would appear to refer to a militia with sufficient weaponry.
Additionally, Well Regulated may simply mean well disciplined.
· Free
State – Some have asserted that this is a generic term referring to a
republican government, however, it is generally considered to refer to
individual states.
· The
Right of The People – This is generally considered to be an individual right
for personal protection or militia service.
· Keep
and Bear Arms – This is probably the most debated phrase within the Second
Amendment. Many people believe this refers to the right to carry guns in an
individual capacity for self-defense. Scholars however believe it was
originally intended just to cover the rights in a military context.
The precise legal interpretation of the Second Amendment
has changed over the years. In 1939 the U.S. Supreme Court considered the
matter in United States v. Miller. The Court adopted a collective
rights approach, in this case, determining that Congress could regulate a
sawed-off shotgun that had moved in interstate commerce under the National
Firearms Act of 1934 because the evidence did not suggest that the shotgun
"has some reasonable relationship to the preservation or efficiency of a
well-regulated militia" The Court then explained that the Framers included
the Second Amendment to ensure the effectiveness of the militia [i].
The 1939 precedent stood for nearly 70 years until the
U.S. Supreme Court revisited the issue in the case of District of Columbia
v. Heller in 2008. The plaintiff in Heller challenged the
constitutionality of the Washington D.C. handgun ban, a statute that had stood
for 32 years. In a 5-4 decision, the Court, meticulously detailing the history
and tradition of the Second Amendment at the time of the Constitutional
Convention, proclaimed that the Second Amendment established an individual
right for U.S. citizens to possess firearms and struck down the D.C. handgun
ban as violative of that right[ii].
This ruling in effect dissected the second part of the
Amendment “the right of the people to
keep and bear arms, shall not be infringed.” From the first part of the
Amendment “A well regulated militia,
being necessary to the security of a free state”. In other words, the right
for people to have free access to arms is no longer connected to the necessity
of having a well regulated militia. Consequently, the general understanding of
the meaning of the Second Amendment to most American citizens covers either one
or both of the following:
1. We
need a well-armed militia i.e. citizens with guns to secure our freedom. This
is generally translated as citizens needing to be armed in order to overthrow a
potentially dangerous or tyrannical government.
2. All
citizens have an individual right to bear arms i.e. to be freely able to
purchase guns with little or no restriction.
Understanding these 2 separate concepts helps explain why
the Second Amendment is so popular in the United States.
Firstly, the concept of a well-armed militia i.e. armed
citizens has tremendous support since this is what enabled the Americans to
defeat the British, in the American War of Independence. Additionally, even
today with a well-established Constitution and democratic electoral system there
is a general lack of trust in the Government and a fear that it may one day be
necessary to use the force of the militia to overthrow the Government.
Secondly, many Americans believe that possessing a gun
helps to protect them and their families, and hence they feel the right to
freely own guns for self-defense purposes is important. The Second Amendment,
following the 2008 Supreme Court decision, helps to cement this basic right to
freely obtain guns.
Returning to the first half of the Second Amendment we
need to consider if a well regulated militia has any relevance today and if it could be used to overthrow a government. When the
Second Amendment was drafted the military as we know it today did not exist.
The country, therefore, depended on a well-armed militia to defend itself. This
not only enabled the country to defend itself against foreign invaders but also
provided the opportunity to overthrow the government if it was perceived that
the government was no longer acting in the interest of the citizens.
The militia does still exist in the United States and is defined
by the Militia Act of 1903. Militia is primarily used to describe two
groups within the United States:
· Organized
militia – consisting of State militia forces; notably, the National
Guard and Naval Militia.
· Unorganized
militia – composing the Reserve Militia: every able-bodied man of at least
17 and under 45 years of age, not a member of the National Guard or Naval
Militia.
The National Guard represents a reserve component of the
United States Armed Forces. Composed of National Guard military members and
units from each state. The National Guard can be deployed or mobilized for both
federal and domestic missions. There are approximately 350,000 guardsmen
currently serving[iii].
The Naval militia is made up of retirees or reserve
members of the Navy, Marine Corps, and the Coast Guard. When the
militia’s services are needed, they are allowed to receive supplies from the
federal government and use available facilities designated for reserves[iv].
With regards to Unorganized Militia, it is unlikely that
they would ever be called up for duty, which is just as well since many men
between the ages of 17 and 45 are probably not even aware they belong to the
Unorganized Militia and the chances they are well regulated is slim. It is
possible, although unlikely, that Unorganized Militia could be called upon
based on the example of the law in Georgia, which states the following:
When
the militia of the state is called into federal service under the Constitution
and laws of the United States, the Governor shall order out for service the organized
militia or such part thereof as may be necessary; and, if the number available
is insufficient, the Governor may call for and accept from the unorganized
militia as many volunteers as are required for service in the organized militia[v].
The Georgia law implies that volunteers would be sought
rather than there being a demand to utilize all members of the Unorganized
Militia. In reality, the most likely event in which the services of Unorganized
Militia would be required would be in the event of a natural disaster event
such as flooding, hurricane, or earthquake, although this could be extended to
cover instances of civil unrest.
With the acceptance that the Militia does still exist in
both an organized and unorganized sense, the next question to be answered is if
the Militia could realistically use force to overthrow a government? The answer
to this question is a resounding no.
Even on the assumption that the militia was well
regulated and consisted of millions of citizens, there is no way it could
compete with the US Military. The US military belongs to The Department of
Defense which is an executive branch department of the federal
government of the United States charged with coordinating and
supervising all agencies and functions of the government concerned
directly with national security and the United States Armed Forces[vi].
In other words, the military acts on behalf of the government and so the
militia would have to overpower the military to overthrow the government.
The US military includes the Army, Marine Corps, Navy,
Air Force, and Coast Guard and as of 2017 spends around $610 billion annually
to fund its military forces. All branches are armed with modern military-grade
weapons and the concept of armed civilians even with legally or illegally
purchased semi-automatic weapons and other firearms available to civilians
confronting the US military armed with tanks, bombers, missiles, etc. is just
ridiculous.
Just as difficult to imagine is how the well-armed
militia would co-ordinate their efforts to overthrow the government. Would they
target government buildings across the nation or alternatively target Congress,
The Senate, or The White House?
Even more problematic would be how do you unite the armed
militia? There is currently a great political divide and intense partisanship
in the United States, which in reality means that some members of the militia
would only want to overthrow an extreme right-wing government, whilst others
would only want to overthrow an extreme left-wing government. In practice, there
would likely be conflict within the militia, whose members will have different
political views. For every member of the militia wanting to overthrow the
government, there may be another one just as determined to support the
government. This could give rise to tension within the militia which in turn
could escalate into a civil war. It should not be forgotten that the deadliest
war in American history was the Civil War (1861 - 1865) with 618,222
casualties. The only other war which comes close to this death toll was World
War 2 in which there were 405,399 American casualties[vii].
The concept of a well-armed militia overthrowing a
government, which may have been a realistic proposition when the Bill of Rights
was ratified in 1791, is no longer realistic in the 21st century.
Today, governments in highly developed countries are replaced through the
ballot box i.e. the democratic electoral system and not overthrown through the
use of force. That said it is still possible, although extremely unlikely, that
a government could lose the plot completely and become so dangerous, as to
require immediate replacement. If this did happen one would hope that the
military would realize it could no longer act for the government and
immediately step in to ensure as smooth as possible transition of government.
In effect, the military would switch sides as opposed to being overpowered by a
civilian-led militia. It would also be hoped that Congress and the Senate would
step in to impeach and remove a rogue President, long before the military felt
the need for action.
In reality, if American citizens were to have any influence
in overthrowing a government it would be done through peaceful demonstrations.
This would enable all US citizens to participate as opposed to the outdated
sexist and ageist definitions of the Unorganized Militia. In the 21st
century freedom of speech is a much more powerful tool than any weapon. It is
also worth noting that when the media reports on conflicts between
demonstrators and law enforcement, it is generally the side that uses
unreasonable force that loses public support, with public support being the
most vital component in determining if a government is overthrown or supported.
Whilst the phrase “A
well regulated militia, being necessary to the security of a free state”
was relevant in the 18th century, a more modern equivalent would be
something along the lines of “A strong
military being necessary to the security of a free state.” And when it
comes to the strength of the military the United States has no close rival,
spending more on defense than the next seven countries combined[viii].
Despite the impracticality of a well-armed militia
overthrowing the government today, the Second Amendment is seen as a vital part
of the Constitution and most Americans not only support the Second Amendment
but are also proud of it. A poll taken in 2018 by the Economist & YouGov
demonstrated that the Second Amendment is supported by the overwhelming
majority of American citizens, with only 21% of American citizens stating that
they would like to see the Second Amendment repealed[ix],
compared to 60% who are opposed to a repeal. This popularity largely stems from
the fact that the Second Amendment means that all Americans have a right to
bear arms or in other words, freely obtain firearms with few restrictions.
Given the popularity of the Second Amendment, it is often
used as an argument to prevent new gun restrictions from being set up,
frequently through the use of fearmongering tactics. For example, if a
politician believes it should be made more difficult for criminals to obtain
firearms which in itself would be a popular viewpoint, gun-rights activists
will falsely claim that this politician will repeal the Second Amendment and
confiscate all guns.
Anyone who would like to see new and sensible gun
restrictions set up must be aware of the sanctity of the Second Amendment,
which has been around for over 200 years and like it or not, is here to stay
for the foreseeable future.
[i] Cornell Law School. Second Amendment. Retrieved from https://www.law.cornell.edu/wex/second_amendment
[ii] Cornell Law School. Second Amendment. Retrieved from https://www.law.cornell.edu/wex/second_amendment
[iii] Military.com. Retrieved from https://www.military.com/national-guard
[iv] Military Law. (2019, December 23). Naval militia. Retrieved from https://military.laws.com/naval-militia
[v] JUST IA US law. 2010 Georgia Code. Retrieved from https://law.justia.com/codes/georgia/2010/title-38/chapter-2/article-1/part-4/38-2-70/
[vi] The Editors of Encyclopaedia Britannica. U.S. Department of Defense.
Retrieved from https://www.britannica.com/topic/US-Department-of-Defense
[vii] History Lists. 10 Deadliest American Wars. Retrieved from https://historylist.wordpress.com/2008/03/18/10-deadliest-american-wars/
[viii] Peterson, P. (2018, May 7), U.S. Defense Spending Compared to Other
Countries. Retrieved from https://www.economicsvoodoo.com/wp-content/uploads/Peter-G.-Peterson-Foundation-U.S.-Defense-Spending-Compared-to-Other-Countries-2018-10-27.pdf
[ix] Prof Frink, (2018, March 27). One in five Americans wants Second
Amendment repeal: Poll. Retrieved from https://internationalfreepress.com/2018/03/27/one-in-five-americans-wants-second-amendment-repeal-poll/
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