What is the most contentious and persistent socio-legal policy debate in the United States? It’s probably a tie between “gun control” and abortion. The latter is not within my purview as the firearms editor for Backwoods Home magazine, which hosts this blog, but the former most certainly is.
All I can say about that comparison is that on the gun issue, those on my side of the debate get to be both pro-life AND pro-choice.
Offered for your review, from the September/October 2016 issue of Backwoods Home:
We followed up with this, from the next issue, November/December 2016:
Feel free to share the links, with friends or in your letters to the editors of local news outlets, and your legislators.
And of course, as always, your commentary is welcome here at this blog.
The Second Amendment has to be read as part of the whole Constitution.
Clause 16 of Section 8 of Article I grants to Congress the power “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 the Congress.” The Second Amendment does not modify Clause 16.
The operative part of the Second Amendment provides that “the right of the people to keep and bear arms shall not be infringed.” The words “people,” ‘state,” and “militia” used in the Constitution mean different things.
Tell us more, Peter. Plainly, do you feel the Second Amendment grants the INDIVIDUAL American citizen the right to keep and bear arms?
I conclude the Second Amendment grants individuals the right to keep and bear arms. However, I do not conclude that right is absolute anymore than other constitutional rights are absolute.
The First, Fourth, Ninth and Tenth amendments also use the term “people,” in addition to the Second. There is no reason to think that the meaning of the word “people” differs in these Amendments.
The First Amendment includes “the right of the people peaceably to assemble, and to petition the government for redress of grievances.” I do not think anyone would argue that an individual does not have the right to assemble with one or more or 1,000 additional individuals, or that an individual does not have the right to petition the government for redress of grievances.
The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” and goes on to set forth requirements for search warrants. NO ISSUE WHATSOEVER THAT IN THIS AMENDMENT “PEOPLE” MEANS EACH INDIVIDUAL.
The Ninth Amendment provides that the listing of rights in the Constitution “shall not be construed to deny or disparage others retained by the people.” The Tents states that powers not delegated to the US by the Constitution nor prohibited to the US are retained by the states or the people. These two Amendments have not been the subject of a lot of Supreme Court decisions.
pedantic but important nitpick
The constitution does not grant rights. It simply states what the government is not allowed to do.
Rights can not be granted, they can only be protected or taken.
Peter – It is a basic rule, made by the Judicial Branch, that laws (and sections of the Constitution) are not written just to be idle comments. In other words, each section of the Constitution is assumed to be written for a specific purpose.
One argument used, in an attempt to gut the Second Amendment, is to just say that its only function is to allow the arming of the militia thereby implying that it does not convey an individual Right to Keep and Bear Arms despite the plain language of the Amendment.
However, as you point out, a section of Article I already grants the power “to provide for organizing, arming, and disciplining the militia…”. So, the above interpretation of the Second Amendment would be idle. It would just be a duplication of part of Section I. This violates the rule that sections of the Constitution are not written just for idle purposes. Hence, the argument, that the Second Amendment does nothing more than authorize an armed militia, CANNOT be the CORRECT interpretation. We have to assume that the Second Amendment adds something in addition to the powers granted in the militia section of Article I.
The inclusion of the Second Amendment into the Bill of Rights and its use of the words “right of the people” clearly show that the Second Amendment is designed to convey an individual right to keep and bear arms above and beyond service in the militia.
Indeed, one can argue that the Second Amendment acts to accomplish at least three different things:
1) It provides for an armed population from which a militia, in time of need, may be drawn as authorized in Article I. Thus, Article I and the Second Amendment are integrated and work together for this purpose.
2) It provides for an armed population to act as a Check and a Balance against the tyrannical assumption of too much power by the Central Government. As we know, the Founding Fathers built a number of such checks into the Constitution. The Second Amendment can function as one such check.
3) It provides for the people to be armed, at the individual level, so that they can enforce their natural Right to Self-Defense against unlawful and criminal aggression.
So, while the haters of the Second Amendment do everything in their power to undercut, gut and minimize it, to the point of trying to turn it into a “dead” section of the Constitution, the Second Amendment, if interpreted correctly, is actually a powerful, effective and critically useful Amendment to the Constitution.
Both the “gun control” (AKA Firearms Prohibition) and abortion debates are contentious because both issues arise from binary positions that are mutually exclusive. In the abortion debate, there is a conflict between the rights of the pregnant woman and the rights of the unborn child. The action to perform an abortion, or not, forces the sacrifice of the rights of one or the other. This, inherently, leads to either a pro-choice or a pro-life position with little middle ground.
The same is true with the Firearms Prohibition position. Firearms are tools that are, inherently, associated with violence. People of good will, on both sides, truly want to reduce violence in society. The Left-Wing worldview is built upon the concept of the “blank slate” view of humanity. Under this view, external social forces (exterior to mankind) are at work causing discord in the world. In other words, Leftists are mentally programmed to view all humans as “helpless victims” of powerful external forces that shape them, for good or ill, and control their actions. Leftists (at least subconsciously) reject the concept of human free-will. In their view, humans are little more than puppets who jump and dance as external social forces pull their strings. Leftists believe that utopia can be achieved by so regulating these external social forces that the puppets jump and dance in only the (politically) correct way.
The binary decision in the Firearms-Prohibition debate is as simple as the one in the abortion debate. Do you blame people for violence or do you (instead) blame some external factor such as the easy availability of firearms? The Conservative worldview is to view firearms as inanimate objects that have no moral force of their own. Therefore, Conservatives blame humans for violence. The “blank slate” worldview of the Left, however, rejects this concept (as a matter of ideology, Leftists NEVER want to blame problems directly upon people) and, so, must blame the inanimate object, the firearm, for violence.
This binary focus forces limited public policies. Leftist, by blaming the firearm, are forced down a path of Firearms Prohibition. They almost never consider any other options.
Conservatives, by blaming the human side of the equation, are forced to look for human solutions such as tougher punishment for the misuse of firearms and better mental health programs.
If one starts with different fundamental assumptions as to the cause of a problem, then the proposed solutions will also fundamentally differ. The different sides, in both the abortion and firearms prohibition policy areas, are so cemented by their basic assumptions (which neither side even thinks about questioning) that the incompatible policy positions become locked and immovable. The binary nature of these issues and the utter lack of any middle ground makes compromise impossible.
I might add that, for the Firearms Prohibition issue, there are additional factors at play. The Leftist ideology, by its very nature, is basically totalitarian and wants to centralize all control in the Government. This can only be done with a population that is largely disarmed. Therefore, while many leftists sincerely believe that firearms-prohibition will reduce violence, many also see other, central-control benefits arising from a disarmed population. Thus, the total zeal with which the Left pushes firearms-prohibition. From their point-of-view, it “kills two birds with one stone”. Most leftists are incapable of seeing the downsides to firearms prohibition. In their minds, its all good.
The lack of a militia today does not erode the right of the people to keep and bear arms. It could be argued that it’s even more vital to the people now that the US gov has standing armies, which can be wielded against us by a tyrannical gov. Don’t think it can’t happen. It has repeatedly thought out history. And with crazies like Eric Swalwell (sp?) flippantly threatening the use of the military against gun owners perhaps we need to be a little more vigilant. The democrat party has a lot of historical blood on its hands, and it’s thirst is apparently not yet satisfied.
For the militia ideal, I think the Founding Fathers were looking at Switzerland. They were certainly afraid of a standing army just waiting to be wielded by a tyrant. And that’s kind of what happened a few years later with Napolean.
Switzerland is defended by a militia, and they almost never go to war. In the 1800s, they had a brief civil war which lasted 3 months. During WWI, they were neutral, and simply defended their borders. They tried the same policy in WWII, but this time they had to defend their airspace.
We have the most powerful military, but we use it too much. I think Sun Tzu would admire the Swiss Militia the most, because he said the best general was not the one who won the most battles, but the one who could achieve victory without having to resort to the force of arms.
Just to be clear, The Constitution does NOT “give us” any rights. It “enumerates” certain “inalienable rights” which are always held by the individual or the people, regardless of what the government says.
Tahn – I have seen many people make the exact point that you listed above. That our Rights are inalienable. However, the sad truth is that our “inalienable rights” are not programmed into our genetic code. I dare say that you can search human DNA throughout all 23 chromosomes and not find a Bill of Rights listed anywhere.
The totalitarians among us do not recognize any right beyond the right to seize and hold political power and, with this power, to force the people to bend to their will. “Might makes Right” is the only “inalienable right” recognized by these totalitarian tyrants.
Therefore, you are correct. The Constitution is just a piece of paper and it has no enforcement power of its own. Probably, one of its most important functions is to list (enumerate) our Rights. This is valuable because it educates the people as to what Rights they should have and should value.
It is the people, who value their Rights and act to enforce them, that function to keep the totalitarian wolf at bay.
TN_MAN,
Since you were discussing power, I thought this would be a good place to quote Mao Zedong. He said, “Political power comes out the barrel of a gun.” Sounds like the Law of the Jungle to me.
If I were addressing non-gun owners, I would use this illustration. Imagine a large room filled with 50 powerful men who are all unarmed. Into this room walks a 12-year-old girl with a gun. Now the men will be scheming to take away her gun, but until they do, she is in charge of that room. Such is the power of the gun.
Keep in mind that I’m a Christian who believes God is at work in this world. But we don’t see Him work supernaturally, we see events happen according to natural laws He put in place. In this world, the lesser force gives way to the greater force.
Oops! I just realized this is a good place to quote Napolean. He said, “God always seems to be on the side of the army with the best weapons.”
Mas – Was a recent technical change made to your blog page?
I am asking because I can no longer view your blog using the Google Chrome web browser. All I get is a page with misc. text and code when I try to do so.
Your blog still displays correctly when using the Microsoft Edge browser. That is the browser I am using to submit this comment. So, if you have recently made a technical change, it has disrupted function in certain other browsers like Google Chrome.
No changes I am aware of…
Perhaps it is something as simple as the automatic installation of a Microsoft update. It would not surprise me (at all) for Microsoft to sneak in some code that disables other browsers but lets their own Edge Browser continue to operate just fine.
I still remember what they said in the very early days of the Windows operating system. Back when the Lotus 123 spreadsheet was considered a significant competitor for Microsoft. I believe the phrase was “Windows isn’t done until Lotus won’t run.” 🙂
Reading this on Chrome so I don’t think that is the problem.
I’m accessing on Chrome, must be some local issue.
On topic, Miller vs US answered the question as to the militia was: essentially every adult male constituted the “unorganized militia”. It also presented a mini history of the concept.
Related to the topic: Per the Miami Herald, Trayvon Martins mother is running for political office on a gun reform and social justice platform. I think I’ll refrain from comment.
I need to quit relying on sometimes foggy memory. The proper term is “reserve militia” and comes from Presser vs Illinois. Which also has some interesting language as to why ‘the people’ can’t be disabled from performing their duty to the government.
Miller states that: “The militia is comprised of all males physically capable of acting for the common defense…..that ordinarily when called for service these men ere expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
WR Moore – on my Google Chrome issue, it seems strange if it turns out to be a local issue. My Chrome browser seems to be working great for every web page EXCEPT Mas’ Blog. Looks like, if it was an issue with just my version of Chrome, it would be affecting other web sites too.
What version of Chrome are you using? I am running Version 74.0.3729.157 (Official Build) (64-bit). I think that this is the latest, 64-bit version of the Chrome browser.
On the militia issue, there is usually a separation made from an “Organized” militia, such as the National Guard, and a general or people’s militia which can be as broad as anyone who is physically able to serve and able to function in a defensive role of some type. As I understand it, since “organized” was not specifically stated in either Article I – Section 8 or in the Second Amendment, the Constitution should be interpreted as using the word in the broadest sense. Therefore, trying to restrict it to just service in the National Guard is a disingenuous tactic designed to limit and minimize the scope of the Second Amendment to a ridiculous degree.
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