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January 8, 2013

“A Well Regulated Militia, Being Necessary …”

“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.” — Second Amendment, U.S. Constitution

The children of Sandy Hook Elementary School returned to their classrooms this past week; President Obama reiterated that solving the “gun problem” would be among his highest priorities in the weeks ahead, even as Republican leaders in the Senate insist that the only issues that will receive any serious attention in the coming months will be the deficit; and nearly 400 people have died in gun related events since the Sandy Hook massacre, including four people this week in a townhouse in Aurora, CO.  And the beat goes on, for as gun advocates never tire of reminding us, the Constitution guarantees their absolute “right to keep and bear arms.”

The problem here is that when gun advocates reiterate this clause of the Constitution, which has taken on the quality of a sacred mantra, they forget  that it is qualified by a preceding clause that links the absolute right to ownership to the necessity of maintaining “a well regulated Militia” for “the security of a free State.”  This was a time, we might recall, when “standing armies” were seen as something of a threat to freedom and liberty—think British Redcoats—and calling out of the Militia required individual soldiers to supply their own weapons.  I don’t know for certain, but I seriously doubt that the U.S. military currently even allows soldiers to bring their own weapons with them when they are called to duty, let alone requires it as part of maintaining a “well regulated  Militia.”  The point here is not that we should eliminate the right to keep and bear arms,  but that the conditions that animated the original intent of this amendment no longer abide.  And given that fact, it surely makes sense to reconsider the standing of the right as an “absolute,” as well as the regulations needed to secure a “free State,” especially given changed and changing weapons technologies and circumstances.

But there is a second point to be made as well.   The “arms”  that the Founders had in mind were the sort of single file muzzle loaders seen in the photograph above and on display at the East Coast Fire Arms antique gun show sponsored this past week in Stamford, CT, not the Bushmaster semi-automatic, military-style assault rifle with thirty bullet clips—seen below— and used to take the lives of twenty school children and six others  at the Sandy Hook Elementary School in Newtown, CT on December 14th.

Adam Lanza, the mass murderer who wrought havoc and tragedy on the village of Sandy Hook, was carrying a muzzle loader it is possible that one person might have been injured or died instead of twenty-six.  One person.  At most.  Maybe.   And that is something that we should bear in mind every time we hear the Constitutional invocation of an absolute right “to keep and bear arms” used to justify the ownership of semi-automatic weapons.

– John Lucaites

(cross-posted from No Caption Needed)

(photo 1: Christopher Capozziello/Getty Images. photo 2: Anon/Wikipedia)

  • black_dog_barking

    The practical purpose of our volunteer armed forces is the management and maintenance of the ability to efficiently deliver deadly force. The stuff about “freedom” is true when the threat to the society is someone else’s deadly force, say Panzer divisions or fleets of Russian tanks. However, that is not the only threat we face and those other problems are not especially responsive to large amounts of lethal-ity.

    The colonial fear of standing armies appears justified when one looks at the pressures arising from having a well provisioned armed force at the ready with no appropriate targets. “National Security” becomes an argument trumping all other concerns including, especially, the individual freedoms that notionally justify allocating the resources to maintain said force — a means of coercing social change. We end up spending our freedom to preserve our freedom. Catch 22, 2013.

  • Minor Heretic

    Not to be pedantic, but only the center firearm in the photo is old enough in design to be from 1789. The one in the lower left is one of those fast-firing 19th century single shot breech-loaders.

    There is that battle between originalism and the living Constitution. The SCOTUS majority confused the two in their Heller decision. There is also a confusion among the 2nd Amendment worshippers about absolutism. That is, there are no absolute rights, as the Heller opinion stated, nor is the Constitution a suicide pact (Justice Jackson, Terminiello v. Chicago).

    The original intent (as far as we can tell at this late date) was as you wrote, the maintenance of a federalized militia “to enforce the laws of the Union, suppress insurrections (there goes the anti-tyranny idea), and repel invasions.” It was a hybrid right, neither totally individual nor totally collective, like our 1st Amendment right to peaceably assemble. We have the individual right to show up to a protest, but the government preventing us from showing up somewhere alone doesn’t violate that right. We have the right to “bear arms” (a military expression) for the purposes of participating in a state sanctioned volunteer military, but not to wander around by ourselves. (Pardon the link troll: )

    While paying lip service to the “original intent” of the sacred document the NRA, et al, take a living Constitution approach to reinterpreting it.

    I’d say that the technology of the times argument is irrelevant, really. If they had had it, they would have used it. In fact, one small unit of British troops were using a breech loading flintlock designed by a Major Ferguson. It was so fast firing and effective that his small group was once mistaken for a major portion of the British forces in the smoke of battle. The framers didn’t specify what arms were protected under the amendment, but they did clearly specify the purpose of bearing them.

  • Gasho

    Maybe the president should recognize all gun owners as part of an active militia and call them up!! Put out the word that their help is needed and that they are required to report ASAP or face military charges. When you’ve got them all together, run a few training exercises, shoot a few rounds into safe targets (to appease them), do a few hundred pushups (with Michelle O, in uniform barking the orders), give them all gun safety training (!!) and gun violence education (!!!), visit the Sandy Hook grave sites and lay down flowers and attend a poetry writing workshop to honor the victims, then have them all run around the perimeter of the country in a single file line, looking for enemy advances. If none are found – then send them home.

    • Guest

      Actually, I’d rather send them to Afghanistan.

    • Christopher McDaniel

      The second amendment was origianally intended to protect citizens from being forced into military service. it’s author wrote:

      “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person”

      It was subsequently edited out as a compromise, but it quite clearly shows that the FF did not believe in unmitigated conscription.

  • LanceThruster

    Re: The “arms” that the Founders had in mind were the sort of single file muzzle loaders seen in the photograph above –

    Would it not be accurate to say the arms the Founders referenced were the most modern and lethal for their time? I also read that ship owners could utilize cannons on their ships and be in compliance with the 2nd Amendment.

    Could an argument be made against the power of the bullet itself? I don’t own a Bushmaster, by my ranch rifle (Ruger Mini-14) shoots the same round (and has a high capacity magazine option)…it just doesn’t “look” paramilitary A .223 round is pretty formidable, high capacity or not, and the 5 round standard magazine it comes with is easily switched out.

    • D.j. Roach

      The definition of arms have changed along with the weaponry arms do not mean flint locks. I don’t think they have even looked at the ballistics of the ammo if they have it would be hollow points and armor piercing that would be effected off the rip. I really hope not I have a Marlin 444 and a Mauser 7mm Mag

  • Dave McLane

    Four points, none of which are tied to the right “to keep and bear arms.” First, Given my current situation where I live in a small non-town surrounded by Arizona desert with the nearest police 60 miles away, most people have guns — myself included — to use for self-defense against non-specific bad guys, drug dealers, javelinas, wolves, possibly mountain lions when you get up over 5,000 feet on an ATV, and whatever/whoever threatens my life, the lives of my loved ones, and perhaps the lives of my neighbors if they need it.

    Second, this isn’t something new. If you read the 30 short stories in “A Century of Great Western Stories — fiction to be sure, but based on historical reality — the three guns that were commonly owned were a six-shot single-action, revolver, a double-barreled shotgun, and a Winchester rifle, typically .38-55 or .30-30. Those three types of guns are still basic with revolvers adding double-action, shotguns adding pump, and rifles having quick-change magazines, plus the addition of pistols with quick-change magazines.

    Third, the “bad gun” is the so-called “assault rifle,” of which there are many. The original was the AK-47 created in the USSR by Mihail Kalashnkov around 1947. According to Wikipedia, “More AK-type rifles have been produced than all other assault rifles combined.” The AK is designed for firefights within 400 meters, is relatively easy to produce, have both semi-auto and full-auto firing, and relatively light ammunition carried in relatively large magazines compared to previous military ammunition. This way an ordinary soldier could carry on his person a large amount of fire power.

    The fourth is the kicker. While ordinary people like myself, don’t need the firepower of an AK, the difference between what the “bad gun” can fire from a 30-round magazine against three separate targets (22 seconds) and what I can fire from three X 10-round magazines in my pistol against the same three separate targets (33 seconds) is 11 seconds. Thus it seems to me that all this talk about banning magazines more than 10 rounds doesn’t hold any water. Plus, while the AK looks threatening, it’s impossible to carry concealed while a pistol can easily be carried on your person or in a handbag: and thus one would think they are more dangerous as they could create more havoc in public places like schools.

    • D.j. Roach

      The bad gun? LOL First, I would never fire a bad gun it would not be good for the health.A lot of good points great insight. I still don’t get how people mistake a inanimated object as a animated one. Guns can not literally kill anybody without it being activated from an outside force like, A Human.

  • Prairiefarmer

    Fuck you!!!…..what a stupid article!!

    • Tapasap

      hope you feel better!

  • Christopher McDaniel

    Your assertion that the second amendment was anti-standing army is incorrect. The Continental Congress created the Continental Army (a well-regulated militia) which was necessary to maintain a free state(not an individual state necessarily, but any independently free society).

    The subsequent clause is intended to make sure that anyone in the future would understand that having a standing army does not super cede the rights of individuals to bear arms.

    James Madison wrote the second amendment. his original draft tells what his specific intentions were for the amendment. “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person”

    That statement defines quite clearly the difference between the well regulated militia and a private gun owner.

    You are out of line and out of fact with your assertions here and a constitutional law class would serve you well.

    • Lucaites

      First, it is an incredible error to reduce the meaning of the amendment to the words of any one founding father, even the revered Madison. Second, if you want to do that it is interesting to note that the “original draft” — which we might call the “rough draft” is not what is constitutional law. Rather, that law follows the pattern found in numerous other documents from the various colonies indicating the qualification to the right that is found in the the actual second amendment. BUT my point here was only that the right is not absolute in some abstract sense — and that seems to be the judgment of the courts ever since if that matters to your reading of Constitutional Law … I don’t know where you studied, but I have always taught and believed that it was — and is somehow qualified. The question here is WHAT might be the most appropriate qualification. Do we really need this right to sustain a “well regulated militia.” In my judgment, not. But of course it is open to question. One other point, to say that any argument is “out of line” in this context seems to ignore the implications of the 1st Amendment, no? Could you have missed that in your constitutional law class?

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  • [email protected]

    Adama Lanza used pistols did he not?

    • D.j. Roach

      Yes 4 pistols the rifle since it held a non military round was found in the car

  • Derrick Davis Sr

    What does “well regulated” mean? In District of Columbia v. Heller (2008), the U.S. Supreme Court stated that the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.What is the mechanism by which “proper discipline and training” is provided to members of this militia? How well disciplined was Adam Lanza? James Holmes? Jared Loughner? Cho Seung Hui?
    Until this so-called militia is being adequately regulated, the purported right of the people to keep and bear arms MUST be infringed. If it is not regulated (or infringed upon), such a militia actually undermines and threatens the security of the state.

    • D.j. Roach

      I disagree you judge a nation and good people by the actions of mentally disturb individuals. How would it be received if I judged you by the actions of a few pedophiles? No it would not be a fair or a just judgement. But yet you are all ready to do it to others?

    • Ofug

      To Derrick Davis,
      Although you quote the Heller (and the 2nd Amendment) correctly, your idea that because Congress has failed in its mandated duty “To provide for organizing, arming, and disciplining, the Militia” (USC Art. 1 Sec. 8 Clause 16), that somehow nullifies the 2nd Amendment is ludicrous. It’s like saying if the Government decides to stop holding elections, then our right to vote is gone. Maybe if you want to exercise your 1st Amendment rights, you should get a job at CNN.

  • D.j. Roach

    That is asinine Gasho ! I served 2 tours in Iraq I am fully trained in arms(any type of weaponry used for the defense of one owns life), more so than people think. In fact, the majority of gun owners are responsible, I don’t need to see any graves I have seen the whites of men’s eyes as they faded from this world ! I served defending all the Constitution the Bill of Rights included. I have tasted the blood of my enemies from the splatter of mortar rounds that dismantled them as if they were jello. I have watched helplessly as friends and fellow soldiers died. I fought to protect you from losing every Bill of Rights we have. But you act as though this can be pissed away like your beer from yesterday? I tell you this all of the Bill of Rights hinge on the Second Amendment. When this amendment is dwindled down to nothing how will you defend when all your other rights a striped from you? What will become of you then?

    “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”
    George Mason
    Co-author of the Second Amendment
    during Virginia’s Convention to Ratify the Constitution, 1788
    You have no clue what this Government is capable of from the good and to the evil. I have every right to speak this boldly. I have earned it. I leave you with this, what appears to be true is not always the case and I speak of yes, Capitol Hill. The 2nd. Amendment was put there to protect you from Tyranny! This country is not as safe as you imagine there are always enemies with in.
    The 101st Airborne

    • Lee Viola

      You have PTSD. Get help, Mr. Roach.

  • D.j. Roach

    All that talk from a guy who probably never wore a uniform and defended this nation, I would never wish war on anyone!

  • D.j. Roach

    The Militia

    The Dick Act of 1902 also known as the Efficiency of Militia Bill
    H.R. 11654, of June 28, 1902 invalidates all so-called gun-control laws.
    It also divides the militia into three distinct and separate entities.

    The three classes H.R. 11654 provides for are the organized militia,
    henceforth known as the National Guard of the State, Territory and
    District of Columbia, the unorganized militia and the regular army.

    The militia encompasses every able-bodied male between the ages of 18 and
    45. All members of the unorganized militia have the absolute personal
    right and 2nd Amendment right to keep and bear arms of any type, and as
    many as they can afford to buy.

    The Dick Act of 1902 cannot be repealed; to do so would violate bills of
    attainder and ex post facto laws which would be yet another gross
    violation of the U.S. Constitution and the Bill of Rights.

    The President of the United States has zero authority without violating
    the Constitution to call the National Guard to serve outside of their
    State borders.

  • Christopher McDaniel

    To say you are out of line is not an attempt to censor, but rather to censure.

    You assert, unequivocally, that the second amendment no longer applies today. That, is decidedly out of line. It applies today more than ever.

    With the massive population and “asleep at the wheel” mentality of most Americans with regards to electing officials, our only protection from those with guns – is guns.

  • Edgar

    Many who go there go because of their will to preserve this country, even if they end up being puppets for powerful people with oil interests.

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