Second Thoughts

By Cyberquill 07/25/20124 Comments

As per the International Journal of Epidemiology, “the rate of firearm deaths in the United States (14.24 per 100 000) exceeds that of its economic counterparts (1.76) eightfold.”

In a 2007 piece titled Swiss Mull Tighter Gun Laws, the German magazine Der Spiegel reported that “according to a 25-country survey by the British-based non-governmental organization International Action Network on Small Arms, Switzerland’s total number of gun deaths, including accidents, in 2005 was 6.2 per 100,000 people—second only to the US rate of 9.42 per 100,000,” Switzerland being “the country with the fourth-highest level of gun ownership, behind only the United States, Yemen and Finland.”

In a recent commentary, Bill Moyers puts forth that “more settlers traveling the Oregon Trail died from accidental, self-inflicted gunshots wounds than Indian attacks—we [Americans] were not only bloodthirsty but also inept,” and in an interview with Pierce Morgan earlier this week, New York City Mayor Michael Bloomberg cited a statistic which said that gun owners were 22 times more likely to shoot family members than unlawful intruders. So much for buying a gun to protect one’s family.

Whatever the exact numbers, it seems that, roughly speaking, the more guns, the more people get shot, accidents and suicides included, with the United States leading the pack. Hard to say whether a decrease in gun ownership would spell much meaningful improvement, or if people would simply resort to alternative ways to hurt or kill themselves and others.

Also, in order to accurately assess the total amount of damage inflicted upon society by guns, one must subtract from it all deaths and injuries actually prevented due to the protective effects of firearms by way of deterrence and self-defense, and such a calculation seems rather difficult to perform objectively, i.e., without turning to speculation rooted in the calculator’s personal sentiments toward firearms: Gun aficionados will insist that firearms prevent more harm than they cause and that hence the problem is too few guns, not too many; everyone else will argue the reverse.

Fact is that among “advanced” nations, the one with the right to keep and bear firearms most firmly enshrined in its constitution also happens to be the one with the highest rate of gun-related violence. Naturally, all-too familiar déjà-vus like the most recent mass shooting in Aurora periodically rekindle the debate on the precise meaning and scope of the Second Amendment to the U.S. Constitution:

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.

(Translation of the archaic ablativus absolutus construction: Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.)

Right off the bat, this provision raises two questions:

  1. Who exactly is included in “the people” whose right to keep and bear arms shall not be infringed? Do “the people” include everybody (with minor restrictions related to legal age, criminal record, and history of mental illness), or do they merely include youngish and able-bodied individuals that could conceivably comprise whatever might be the modern equivalent of a “well regulated militia”?
  2. What types of arms are meant? Eighteenth-century-style flint-lock rifles and blunderbusses only? Or does the term “arms” include semi-automatic assault rifles and shoulder-mounted rocket launchers, for what kind of enemy might this well regulated militia encounter that would be intimidated by anything less than the most potent weaponry available at the time?

As to the first question, basic interpretive logic commands that within the four corners of one and the same document—especially a legal document—one and the same term must refer to one and the same thing each time that term occurs. Unless there is reason to assume that a document was either sloppily crafted or deliberately designed to confound the reader, the terms it contains won’t metamorphose with respect to their definitions from one occurrence to the next. A particular term’s definition may be unclear, but whatever it may be, it’ll be the same on page five as it was on page two.

Therefore, “the people” referred to in “We the People” (Preamble); “the people” whose right to peaceably assemble and petition the government for a redress of grievances shall not be infringed (First Amendment); and “the people” whose right to be secure in their persons, houses, papers, and affects shall not be violated (Fourth Amendment); must be the very same people whose right to keep and bear arms shall not be infringed.

It seems rather awkward to argue that in the U.S. Constitution, the term “the people” refers to the general population every time it occurs except in the Second Amendment, where it refers to a narrow subset of the people only, namely to active or potential members of an organized militia.

Moreover, the Second Amendment doesn’t establish a right to keep and bear arms; it merely emphasizes that the preexisting right to keep and bear arms shall not be infringed. (You may recall James Madison’s reluctance to append a Bill of Rights at all, as he saw no need to affirm any rights that the seven main articles of the Constitution didn’t empower the government to infringe upon in the first place.)

So the phrasing of the Second Amendment itself indicates that the right to keep and bear arms preceded the composition of the Second Amendment, i.e., it also preceded the composition of its militia-related prefatory clause. And it simply doesn’t compute that the purpose of a provision’s prefatory clause should be to narrow a right that its main clause specifically states “shall not be infringed.” The self-amending amendment hasn’t been invented yet.

Thus, since the right to keep and bear arms preceded the U.S. Constitution, and since the Articles of Confederation lead right up to the U.S. Constitution, the right to keep and bear arms must have existed when the Articles of Confederation were in effect.

Article VI of the Articles of Confederation required that

every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

This means that in the years immediately preceding the Bill of Rights, the states were mandated to stockpile “in public stores” a sufficient quantity of arms to meet all their militia needs, yet still the people had the right to keep arms, and these must have been arms different from and intended for different purposes than those kept in public stores for militia-related purposes—for why the people’s right to keep arms if it was incumbent upon their states to provide them with all the arms necessary for militia-related duties anyway?

Therefore, the right to keep and bear arms, which preceded the Second Amendment, appears to have existed separately from militia-related purposes, and since the Second Amendment emphasizes that this preexisting right to keep and bear arms “shall not be infringed,” the Second Amendment cannot possibly be read as reducing the right to keep and bear arms to militia-related purposes.

The other question, namely to determine what kinds of arms exactly the people have a right to keep and bear such that any laws prohibiting or restricting ownership of such arms would be unconstitutional, is far more vexing than figuring out who “the people” are. In order for the Second Amendment to make any sense at all, these must be arms that would be a reasonable match for those the standing army, when commanded by tyrannical leaders, would be in a position to deploy against the people, for who else—other than a well regulated standing army—might this “well regulated militia” exist to fight?

As a self-appointed “sovereign citizen,” i.e., one of those anti-government extremists that think statutory laws don’t apply to them, once put it this way without pulling too many punches:

We do not have the right to keep and bear arms so we can go duck hunting. We have the right to keep and bear arms in order to shoot our own politicians. We have the right to keep and bear arms to shoot the police, to shoot your local government officials, your state officials, your president, your Congressmen, your senators. One of the ways you prevent the misconstruction or abuse of the powers of the Constitution is by letting the people in Washington understand that you are armed. That’s the idea behind this. It’s saying, look, we’re armed down here, don’t mess with us. […] The threat of violence is required, because they will not listen. The system will not listen to people like me unless there are other people who back me up that have guns.

Somewhat over the top as this characterization may be, the rationale behind reaffirming the right to keep and bear arms in the Bill of Rights certainly wasn’t to emphasize people’s right to go hunting or keep intruders off their properties—even though the right to keep and bear arms, which preceded and was subsequently codified via the Second Amendment, surely encompassed those rights—but to discourage potentially oppressive future governments from passing and enforcing laws to disarm the American citizenry; for the people are much harder to oppress when they are armed, as every despotic regime will tell you.

That said, as we’ve recently seen in Lybia and Syria, the types of arms necessary to offer any measure of meaningful resistance against a government backed by a modern military machine—even one that, in terms of lethality and sophistication, lags light years behind the one the U.S. government could unleash upon “rebel factions” within its borders—far exceed what even the most ardent NRA loudmouth would suggest that the average citizen should be allowed to possess. Not even Ted Nugent would propose that the people ought to be able to keep and bear M-16s and anti-aircraft artillery so as to be in a better position to repel crackdowns by the U.S. military.

Common handguns and hunting rifles, however, are no match for the U.S. government fire power. Simply put, the notion of citizens being armed to protect themselves against the standing army or a foreign invader has long outlived its time, for to permit the American people to keep and bear the types of weaponry necessary to this end would obviously be insane.

Yet if one takes the Second Amendment seriously, one must conclude that it secures the right of the people to own assault rifles, missile launchers, and more; because a modern militia simply wouldn’t be battling a lesser equipped opponent.

Therefore, since advancements in arms technology have effectively stripped the Second Amendment of all sensible relation to its original purpose, and because to secure the people’s right to go duck hunting and to confront burglars in their homes resides squarely outside the purview of a federal charter, the Second Amendment must be repealed.

It is so ordered.

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  • Richard

    I am no authority on the laws of the United States, but doesn’t the right to bear arms derive from the Common Law presumption of freedom? Thus repeal of the Second Amendment does nothing except to allow legislation restricting the right to bear arms without having to change the Constitution. Maintenance of a militia is a red herring and reflects the serious doubts there were about tying the hands of the legislature.

    So, having made your case for gun control, what further legislation would you propose? Am I right in thinking this would be a matter for each individual State? If so, repeal might be presented as an extension of freedom, for some States might not wish gun control at all. If you apply your usual care and insight into those proposals, you might allay many fears and ease the path to repeal.

    On the other hand, partial repeal might be effected by amending the Second Amendment and bringing in your proposals that way.

    Paradoxically, the Second Amendment favours opposing views as to gun control. It suggests the draftsmen were seeking a compromise with an inchoate restriction to allow only the militia to bear arms. What is the history of this? Gun control might be achieved merely by defining militia and that might not require a repeal at all, meaning that individual states could introduce their own laws in the spirit of the Second Amendment.

    This is probably all nonsense: humour an old man. 🙂

    • http://blog.cyberquill.com/ Cyberquill

      Repealing the 2nd Amendment would allow the states to regulate the possession of firearms, and then the Supreme Court wouldn’t be able to overturn these laws. 

      Sure, the 2nd Amendment could be amended by removing the outdated militia clause, so it would simply read The right of the people to keep and bear arms shall not be infringed, which, in essence, the 2nd Amendment means anyway. (The introductory clause merely states the reason for why the people’s right to be armed shall not be infringed, but, as I’ve explained in my post, it cannot possibly be read to reduce “the people” to a subset of the people.) 

      If anything, the militia clause suggests that all restrictions on the kinds of weapons the people have a right to possess are unconstitutional, for in order for a militia to be effective, its arms must be a match for any opponent it may face, and it seems unlikely that any contemporary opponent—let alone government forces—would come charging down the hill armed with nothing but handguns and hunting rifles.

      So perhaps it should be amended to read The right of the people to keep and bear arms of the kind commonly used for personal self-defense and recreational purposes shall not be infringed. 

      But see, the whole raison d’etre for the Bill of Rights is to underscore not general freedom but specific freedoms from government tyranny. The First Amendment isn’t there to affirm my right to publish my favorite cookie recipe, but to affirm my right to criticize my government. 

      Likewise, the 2nd Amendment isn’t there to affirm my right to go hunting, but so that a tyrant in power will think twice about cracking down on my community. A provision simply to affirm my right to shoot rabbits or to chase burglars off my property would seem a bit out of place in a national constitution; therefore, regulating firearms “feels” more like it should be up to the states. 

      Either way, the Second Amendment, as written, has to go. Nobody knows who or what this “militia” is supposed to be these days, nor what its realistic functions might include. Sure, they could try and define “militia,” but regardless, “the people” are still “the people,” no matter what subset of the people might comprise this mysterious “militia.”  

      And I’m not making a case “for” gun control. As I pointed out in my previous post, since drug control laws don’t seem to work very well, I’m not exactly sure why gun control laws should fare any better. Products in high demand always seem to be readily available, legal or not. 

      On the other hand,  the constitution of Japan flat-out bans the possession of firearms and swords, and annual gun-related fatalities in Japan are in the double digits, not in the quintuple digits like in the United States, where the Constitution says precisely the opposite. 

      I’d just be curious as to the number of Karate-related fatalities in Japan.

      • Richard

        Yep. The two most notorious civilian gun massacres of recent times in the UK were with legal weapons. Still, we can’t tell how many such serial murders may have been prevented. Perhaps gun control checks impulsive killings, sane or insane.

        • http://blog.cyberquill.com/ Cyberquill

          Yeah, perhaps. 

          I just continue to be perplexed by individuals on the right that throw hissy fits anytime someone suggests relaxing the drug laws, screaming that if drugs were legal, they’d be even more widely available, resulting in even more addicts; yet then these same individuals turn around and decry all calls for more gun control, because laws wouldn’t stop anyone from arming themselves illegally anyway and would therefore not result in fewer shootings. 

          Individuals on the left, of course, subscribe to the reverse rationale: let’s legalize drugs, because people will shoot up anyway, but let’s tighten the gun laws, because then fewer people would get shot. 

          I simply fail to see why the efficacy of a law designed to regulate the availability of a particular product should hinge upon the nature of the product being regulated rather than on the inherent efficacy of this type of law.

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