Some Truth About the Constitution and Well-Regulated Militias

Rolling Stone has a good article about the twisted reading of the 2nd Amendment we’re living under. From legal affairs journalist Jay Michaelson:

The lie at the heart of all of this insanity is the Right’s ludicrous perversion of the Second Amendment. . . . Until 2008, no federal court had held that the Second Amendment conveyed a right to own a gun. On the contrary, the Supreme Court clearly said that it didn’t.

Why? Because of the obvious language of the amendment, which reads, in full, “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.”

For nearly two hundred years, there was widespread agreement that the Second Amendment meant what it said: that the right “of the people” meant the right to bear arms in well-regulated militias, which was how the nation protected itself prior to standing armed forces and police, and which slave-owners maintained to protect against possible uprisings.

Unquote. I interrupt the Rolling Stone article to insert more about militias from lawyer M. S. Bellows, Jr.:

What many don’t know is the Constitution’s *other* militia clauses that give the 2nd Amendment context:

Yes, “militia” is discussed OUTSIDE the 2nd Amendment. Article 1, Section 8 gives Congress power over national defense, including the army, navy – and militia. If we want to understand what the 2nd Amendment means by “well-regulated militia,” that’s where we have to start.

First, the Framers knew Caesar had led his troops across the Rubicon to crush the Republic and foresaw that a too-strong standing army could topple their nascent democracy in a military coup (as we’ve seen countless times elsewhere).

Accordingly, the Framers allowed for a permanent navy but a TEMPORARY army: “Congress shall have the power… To provide and maintain a Navy” (full stop), and “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”

But how could the new nation defend itself on land without a standing (i.e., permanent) army? The militia.

The idea being that in 1787, armies weren’t hard to create quickly: just pull cannons out of a warehouse, requisition a bunch of mules/horses, and call for volunteers . . .

But there’s more to it:

By “militia,” the Framers didn’t mean the Proud Boys and similar beer-swilling yahoos acting on their own initiative. They meant volunteer professionals, soldiers who would be equipped, trained, regulated, and deployed BY CONGRESS just like other military units. Here, read it for yourself. Article I, section 8, clauses 15 and 16:

“[Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, … reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

So: CONGRESS is responsible for deploying, overseeing, *arming*, and *disciplining* (i.e training and regulating) the militia (with the states choosing local officers and arranging for training as Congress directs). Basically, the National Guard. . . .

Which is the point of this thread: that the 2nd Amendment doesn’t stand in isolation. It’s part of a larger scheme. After the original Constitution was adopted, the Framers immediately wrote the Bill of Rights: ten amendments designed to clearly identify and protect certain rights. One of them was the right to keep and bear arms.

Why? Some Framers feared the Constitution endangered states’ rights. Southern Framers, in particular, feared Congress might disarm the state militias that existed mainly to suppress rebellion by enslaved people. So the 2nd Amendment provides that members of the militia can’t be disarmed by the federal government.

Which basically is the same as saying that federal troops aren’t allowed to seize the Oregon National Guard armory in Salem. Which is fine. I can live with that.

Unquote. So how did we get to the point where a well-regulated militia is now interpreted as almost anybody with a credit card? Back to Rolling Stone:

What changed?

. . .  While the 1972 Republican party platform had actually supported gun control, the Reagan Revolution transformed the party.  (Ronald Reagan wrote an article praising individual gun ownership in Guns & Ammo magazine in 1975.)  Now, being pro-gun, like being anti-abortion, became a pillar of the New Right ideology.

After all, it ticked all the boxes, tapping into white fears of “crime” and “the inner cities,” populist resentment of “big government,” and male fears of losing power in the age of women’s liberation. The Right’s newfound infatuation with guns was white, male fragility projected onto firearm ownership.

And what had once been a fringe view rejected by the Supreme Court — that the Second Amendment gave individuals a right to own guns — gradually became Republican Party gospel when the fringe took over the party.  Former Chief Justice Warren Burger (a conservative appointed by Richard Nixon) described it as “a fraud on the Amer­ican public.”

Eventually, this view won out, not by persuasion but by simple politics. By 2008, there were five conservative justices on the Supreme Court, and Justice Scalia wrote an opinion in D.C. v. Heller saying that the Second Amendment conferred an individual right to own guns.

There are numerous problems with Scalia’s opinion:

First, he claims that the clause about militias is just a preface, with no relevance to the meaning of the right. “The former does not limit the latter grammatically, but rather announces a purpose,” he wrote. . . .  But wait a minute – if maintaining militias is the purpose of the amendment, then why does “the people” mean not militias but individuals?  Why is a purpose not a purpose? Justice Scalia simply dismisses the first half of the amendment as merely decorative, with no function whatsoever.

Second, Scalia simply dispatches as “dubious” the drafting history of the amendment, in which James Madison deliberately did not use language of individual rights that was present in contemporaneous documents. Thomas Jefferson, for example, had once proposed “No freeman shall ever be debarred the use of arms.” That proposal was rejected.

Third, Scalia inverts the meaning of the Second Amendment itself, by saying that Congress actually can ban military-grade weapons (i.e. the kinds a militia would use) but not handguns, which are used for self-defense (which the amendment never mentions).

Of course, what’s really happening here is a social, cultural phenomenon, using the constitution as an excuse. . . .

The tragic irony . . . is that we know how to stop this from happening. . . . The advocacy group Everytown for Gun Safety lists 37 solutions on its website, from background checks to waiting periods, prohibiting ‘open carry’ to repealing ‘stand your ground’ laws, banning high-capacity magazines and assault weapons to holding the gun industry accountable.

. . .  But God help any Republican who has the courage to stand up to the NRA, gun manufacturers, and the rage of the populist Right. . . . Our [inability] to do anything about these horrifying mass shootings is not the Second Amendment’s fault. . . .It’s Republicans’ fault. It is that simple.

Unquote. Today it’s also the fault of a few rogue Democrats in the Senate who love the filibuster and fear doing anything about guns. But the point remains: almost all Republican politicians oppose gun control and almost all Democratic politicians support it. 

Insanity Again

How long would this list be now? From July 24, 2012:

Insanity

1999 – Columbine – 12 dead, 21 wounded.

2007 – Virginia Tech – 32 dead, 17 wounded.

2008 – Northern Illinois – 5 dead, 21 wounded.

2009 – Fort Hood – 13 dead, 29 wounded.

2009 – Binghamton – 13 dead, 4 wounded.

2011 – Tucson – 6 dead, 14 wounded.

2012 – Tuscaloosa – 18 wounded.

2012 – Aurora – 12 dead, 58 wounded.

“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.”

We don’t have a well-regulated militia. Instead, we have the unregulated sale of dangerous weapons.

Either weapons of war like the AR-15 assault rifle should be illegal or we should all be able to purchase surface-to-air missiles. It’s one way or the other.

Or, as a Republican Supreme Court justice said back when Republicans were  conservatives, not radicals:

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And what normal countries do:

Insanity

1999 – Columbine – 12 dead, 21 wounded.

2007 – Virginia Tech – 32 dead, 17 wounded.

2008 – Northern Illinois – 5 dead, 21 wounded.

2009 – Fort Hood – 13 dead, 29 wounded.

2009 – Binghamton – 13 dead, 4 wounded.

2011 – Tucson – 6 dead, 14 wounded.

2012 – Tuscaloosa – 18 wounded.

2012 – Aurora – 12 dead, 58 wounded.

“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.”

We don’t have a well-regulated militia. Instead, we have the unregulated sale of dangerous weapons.

Either weapons of war like the AR-15 assault rifle should be illegal or we should all be able to purchase surface-to-air missiles. It’s one way or the other.