It was the best of amendments, it was the worst of amendments…
Over the last few decades the right to bear arms somehow became the hot button issue of the Bill of Rights. It’s the only civil liberty that left-wing civil liberty advocates won’t clamber upon a soapbox for. And for some citizens of the Tea Party persuasion, President Obama’s proposed gun control measures in the wake of the Sandy Hook Elementary shootings was the proof in his tyrannical, Unamerican pudding. But what does “supporting” the Second Amendment even mean? The actual text is grammatically questionable and pretty blasé:
“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.”
It seems straightforward, even kind of a let-down after the sexy freedom of expression passage that precedes it. Yet I would argue that the Second Amendment is arguably the most paranoid, hopeful, stupid, daring, and interesting passage in the entire Constitution.
I was inspired to rethink the Second Amendment after reading this recent post about self-defense. The author argues that Brazilian jiu jitsu, a martial art developed by Mitsuyo Maeda, Luiz França, and the Gracie family, is superior to a gun when it comes to defending oneself against an attacker. The most compelling argument is that BJJ (and martial arts in general) offers a “sliding scale of violence.” With a firearm, the only options are waving it around as a deterrent and actually shooting someone. The one gun aficionado I emailed the piece to shot back (pardon the pun) the expected “you’ll pry my firearm out of my cold, dead hands.” Talk about a passionate reaction! Especially considering that if there was anything suggesting said prying in the actual text I must’ve missed it.
Another reaction I sometimes get when I raise the topic of the Second Amendment using any document that isn’t an NRA pamphlet is a half-joking “why do you hate America?” Ironically, other American laws such as Affirmative Action are totally still fair game. Also ironically, the right to bear arms isn’t an American idea at all but one we stole from our erstwhile colonial overlords, the Brits. There it was probably always part of the nebulous, ancient unwritten “right to self-defense.” Henry II’s Assize of Arms codified it as early as 1181 in an effort to ensure himself a citizen-army that was trained in whatever weaponry they could afford. A lowly freeholder, for instance, was only required to supply himself with a lance. A landed gentleman had to acquire a crossbow. In desperate times – such as when the monarch contemplated invading Castile or France – even serfs were added to the ranks. These fellows were only required to avail themselves of “small daggers,” possibly the most useless weapons of war in all of history.
It was during Elizabeth I’s reign in the second half of the sixteenth century that citizen-armies took on the appellation “militias.” Around the same time England was becoming a dingy, dentist-less purgatory for Catholics and Protestants in turn, depending on who was sitting on the throne at the moment. Charles I was technically an Anglican but he had the audacity to marry a Catholic princess and laugh in the face of puritanical austerity by setting up altar rails in churches. Worst of all he was fanboy of the suspiciously popish sort of absolutist rule that was sweeping the Continent at the time. For all that Chuck lost his head. During the Protestant Interregnum that followed (1649-1660) Oliver Cromwell pursued the disarming of Catholics and other “disaffected persons.” This was ostensibly to prevent them from revolting. Not to be outdone, Charles I’s sons Charles II and James II, the latter of whom was openly Catholic, stripped Protestants of their weapons once the monarchy was restored.
The religious question was effectively silenced when the Glorious Revolution finally tossed James II out in favor of the Protestants William and Mary. Not surprisingly, given that citizen-arming had a long English history and that there had been recent attempts to strip citizens of their weapons, the right to bear arms figured prominently in the Bill of Rights of 1689. It stated that:
“…the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.”
“Their conditions” here, again, refer to economic rank.
It’s no secret that the British Bill of Rights immensely influenced the framers of our own Constitution. Obviously both documents stress that arms are necessary for defense. What’s interesting about that is that the “defense” was considered in much broader terms in those days. Militiamen fought wars and were expected to arrest criminals in their own communities. Some British monarchs clearly even considered preemptive invasions of foreign countries to be part of the “self-defense” that armed citizens should render.
Crazy, right? The reason that armed citizens used to have so many responsibilities is that there really weren’t any proper armies or police forces yet. Law enforcement used to consist of a paid sheriff or constable supported by volunteer “watchmen” who were notorious for sleeping or getting drunk on the job. Criminals might end up in jail for a short time before they faced their sentences. This was usually public flogging, and in many colonial towns there were few adults who’d managed to escape it entirely. Workhouses where the criminally lazy could learn a craft and debtor’s prisons were the only long-term options. For more heinous crimes, the prescribed punishment was death, mutilation, or banishment. It wasn’t until the 1780s that the prison system as we know it today took root in the United States. Prisons (or, as they used to be called, “schools of liberty”) satisfied the people’s desire for more long-term, private punishment. Even in the 1830s it was clear that these institutions were costing tax-payers a pretty penny while not really showing any ability to “school” anyone in how to be better citizen. It had just become psychologically satisfying to be able to pay to wash one’s hands of it; What happened behind walls to the mostly poor, mostly male, 50% black and 25% foreign-born inmates can stay there, thank you. Incidentally, it was also in the 1830s that the first paid, professional, modern municipal police forces emerged on both sides of the Atlantic. The days of citizen’s arrests and public floggings were over.
As for standing armies, they were considered by colonists and many of their British cousins to be the sinister tools of tyranny. Why would any ruler need to keep a professional army in his own lands if he had the consent of the governed? Militias were the way to go. By the 1760s, though, the monarchy was faced with the awkward situation of watching the mainland colonies organize independent, separatist militias – parallel to sanctioned militias and openly speaking of rebellion. While some members of Parliament were sympathetic to colonial grievances over taxes, the Proclamation Line which foreclosed white settlement further west, etc., they couldn’t tolerate avowed enemies of the state stockpiling weapons. They decided that the only reasonable move was to restrict firearms and munitions sales in the colonies. The soon-to-be Revolutionaries vehemently protested that once again their rights “as Englishmen” were being trampled. Forcible disarming turned into yet another wagon on the “long train of abuses” that was to derail in George III’s chiseled Germanic face in 1776.
After independence was won and peace restored, the new republican government made haste to disband the pseudo-professional standing army as any decent non-tyrants should. In fact the Articles of Confederation (which were later replaced by the United States Constitution) decentralized the militia to an almost absurd degree. It turned out that depending on rag-tag bands of volunteers half-compensated by their respective states wasn’t so cool in real life. Militias barely managed to put down tiny local rebellions and people started to fear what would happen in case of, for instance, a major Indian uprising or foreign invasion. So when the Constitution placed the armed forces more solidly under federal control in 1787 all but the most die-hard Anti-Federalists breathed a sigh of relief. It was after all still a mostly volunteer force. Yeah, liberty! Unfortunately, militias once again were not up to snuff in the War of 1812. By 1830s, they were considered dorky, mostly useful for parading around in fluffy epaulets on Independence Day rather than for actual fighting. Militias had a brief revival in the Confederacy during the Civil War. Some British schmuck made a fortune selling shiny Confederate buttons, which insane ship captains for some reason believed to be worthwhile cargo to be smuggling across the Union blockade, shortages of food and medicine notwithstanding. I guess sometimes wooden buttons just won’t do. Meanwhile the Union soldiery was more fully professionalized than ever before. Uniforms for the first time were mass-produced in small, medium, and large sizes and enlisted men were given rations of canned food that tasted as terrible on the first day as they did a year or two later. Reconstruction meant a lot of things; Among these was the final death knell of state militias as a viable national fighting force.
In the midst of all this incredible change, James Madison squiggled the lines that become known as our Second Amendment.
Now, I’m no Constitutional scholar. A Google search will show that there are plenty of erudite expositions available online if that sort of thing interests you. I can only say, as a former aspiring historian, that there’s a lot more to the right to bear arms than meets the eye. Without a doubt a bunch of men who just committed treason against their government – even if it was tyrannical – would have to defend and justify that act. Some state constitutions, such as Virginia’s, outright granted citizens the right to revolt against “arbitrary” power. The national Constitution did not. Is it implied? Given the history of Britain I think it’s naive to think that rebellion against misrule wasn’t still part of the concept of “self-defense,” the proper, expansive use of militias, that colonists had in mind. It seems that following United States v. Cruikshank (1875) the Supreme Court was for a long time happy to distill the Second Amendment into, basically, a prohibition against the federal government (but not state governments or other institutions) restricting the right to bear arms. It wasn’t until nearly a century later that everyone learned to ignore the part about militias and attributed the right to bear arms to individuals.
What the Second Amendment stands for today is several light years away from its intent. No militia of ours is ever going to repel an invasion or even fight crime on the streets – if only because we like to trust the professionals for those sorts of things now. Theoretically, armed citizens might still pose a threat to a tyrant rising to power, but few gun advocates are okay with private individuals owning the sorts of weapons that could actually compete with the those of the U.S. Army. It would be as horrific as a bunch of dagger-wielding serfs trying to stand up to crossbow fire. So what does “self-defense” still cover? I suppose neutralizing an attacker in a fight. Could martial arts, mace, or some other non-lethal response be a feasible alternative? What’s the calculus between being raped by a home intruder and dead school children?
I don’t have the answer to those questions. I only think it’s important to discuss them intelligently, compassionately, and with an open mind. Whatever small understanding reached this way has got to be better than blindly painting the opposing side as evil. All I’d like to say is that the world that the framers of the Constitution envisioned was a very odd one. On one hand, it was a terrifying place where even elected rulers could get drunk on power and strip their constituents of everything that matters. On the other hand, it was a communitarian paradise where we, the people, are so fair, courageous, and incorruptible that we can be trusted to maintain harmony in our own communities and even defend it from any possible outside threat. Looking out my window sometimes I’m not sure which world I see.
March 31, 2014 at 9:44 am
Some brief thoughts before I head to work.
Have you ever read the Federalist Papers? Which were the arguments made by Alexander Hamilton, James Madison, and John Jay, which the papers are also the documents that the Supreme Court has most cited in their interpretation of the constitution. You said you’re no constitutional scholar, I would make no claim but I have poured in hours studying the document, and the history around it. Your assertion that because we didn’t have armies we needed an armed populace is simply false. This is expressed in The Federalist Essay Number 29 by Alexander Hamilton, who was a Federalist.
“If there should be an army to be made use of as the engine of depotism what need of the militia? If there should be no army, whither would the militia,…Is this the way in which usurpers stride to dominion over a numerous and enlightened nation. Do they begin by exciting the detestation of the very instruments of their intended usurpations?”
– Alexander Hamilton The Federalist 29
In Basic english the armed populace militia thrives because of an established army, which makes logical sense because a citizen would be trained in the military, would be discharged and would again live in society. They would have the capability to train others, as well.
Also comparing the second amendment or any amendment, or article of the constitution to Affirmative Action or other laws that aren’t present in said charters is comparing apples to oranges, but I will defend both your assertions, gun owners, and others with the world of James Madison in Federalist essay N. 51.Our nation was founded as a republic, and founded as such we are no democracy, that being said, the right to arm and protect ones self is an inalienable right, even if an inalienable right becomes that of minority of 90% of people want to have gun control, or whatever the democrats number they’re throwing out nowadays, (which is a lie, figures never lie, but liars always figure.) it still doesn’t matter because the as Madison explains that the inalienable rights of the minority will be protected:
““First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority — that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.”
March 31, 2014 at 9:48 am
sorry of the grammar errors! wanted to contribute to your blog before I went to work, no time to proofread!
March 31, 2014 at 11:51 am
This was a really interesting historical perspective. Yeah, the SCOTUS’s interpretation of various laws changes with time. Even the justices that are the most hell-bent on preserving “the Framers’ intent” (cough, Scalia) won’t cling to true intent 100% of the time. (I think that’s partially because no will ever know the “true intent” of anything passed by committee. Everyone has a different motive, Federalist Papers be damned.)
Anyway, you can compare it to the expansion of other amendments, I think. It’s fair to assume that the Framers absolutely did not intend for, say, slaves to have free speech when writing the otherwise excellent 1st Amendment. Interpretation and application of the 1st Amendment has evolved over time, just like the 2nd Amendment, or the 14th. (Treatment of “treason speech” during vs after wartimes is interesting, and “obscenity” speech has especially changed. And look at our new laws granting “free speech” to corporations.) The application of our rights will always expand and contract over time in accordance with societal changes.
Regardless, I do think it’s interesting that the argument for supporting gun rights is so often made in terms of “George Washington would have wanted me to own 16 assault rifles! Don’t you mess with the Bill of Rights!” since that’s not at all how the 2nd Amendment is structured.
March 31, 2014 at 1:12 pm
Hi Phadde!
Thanks so much for your thoughtful response! I’ve read some of the Federalist Papers but I’m not as familiar with them as you are. I recall though the writers all equated standing professional armies with tyranny and despotism (as did the Anti-Federalists). By “professional” I mean full-time, paid soldiers who stick around in their home country in peacetime. From what I understand the soldiers at the beginning of the Revolution were volunteers who fought as part of established militia units, whereas towards the end they were a lot more likely to be poor men who needed the bounty money, fought in mixed units under unknown officers, and were sent to battles far from home. This was because the yeoman-soldiers couldn’t stay away from their farms and families for so many years. For lack of understanding the terminology I called the latter type “pseudo-professional.” Sorry if that’s a misnomer! I’ll definitely look through the Federalist papers and some other histories of the American Revolution but I’m pretty sure the references to “armies” were made about the Redcoats who were (in the view of the colonists) unjustly hanging out, being quartered in private homes, and intimidating a peaceful populace – though I assume Parliament stationed them in Boston, New York, etc. because they correctly perceived that the situation was getting out of hand.
I totally agree with you that the framers of the Constitution considered the right to self-defense of one’s person as a basic, unalienable right. I think actually they considered it so obvious and basic a right that that wasn’t even why they bothered to put the Second Amendment in. How could they imagine anyone ever taking it away? I think they did intend to explicitly legalize something that had been attacked by previous English kings as well as absolutist monarchs on the European continent (the right of the people to organize themselves into an armed militia).
Lastly, my apology for the lame remark about Affirmative Action! Yes, they’re apples and oranges. I was only trying to point out that it’s one of the legal concepts that seems to be above debate. I’m not about banning guns at all but if I try to engage someone on either side of the fence in an honest discussion about the Second Amendment I often get the sense that it’s such a provocative topic that unless they’re sure we agree 100% we’d better not talk about it. I’m super grateful that you didn’t feel that way 🙂 Thanks again, I’ll follow up on your recommendations this weekend!
March 31, 2014 at 1:31 pm
Thanks, Ann! It’s awesome to get a lawyer’s perspective.
It would actually be pretty terrifying if we were still bound by John Adams’ bleak, cantankerous worldview today. We’d TOTALLY all have 16 assault rifles ;-). Our court system and legislature seem set up specifically to react to regional nuances and changes over time, and that’s a great thing. The men who established the government clearly didn’t want us to live under the dead hand of history!
(P.S. I’ve never heard about corporations specifically being guaranteed free speech, how interesting! Were they not allowed to speak freely before?)
March 31, 2014 at 4:16 pm
Well, they’re not yet guaranteed the full rights that actual human people have. Historically, whatever speech rights corporations held were pretty limited. However, in the early 2000s, Citizens United v. Federal Election Commission (usually just called Citizen United) allowed organizations to actively participate in elections based on a 1st Amendment argument. I don’t pretend to know all the intricacies of election regulations and Super PACs, but at the end of the day, corporations can now effectively contribute millions to political campaigns. Previous law held that it wasn’t kosher for companies to donate like that because 1) companies are so disproportionately wealthy when compared to individuals that the potential for corrupting influence is staggering, and 2) they’re corporations, not people, so whatever speech rights they had were limited, not being actual humans and all. In Citizens United, SCOTUS’s argument was basically that the 1st Amendment doesn’t mention a corporate restriction, and if you restrict companies from donating to campaigns, you’re restricting their right to free speech. It created a corporate right of free speech where none had previously existed.
I have not followed the Hobby Lobby birth control case closely, but I understand that a large part of their 1st Amendment argument rests on the Citizens United holding.
March 31, 2014 at 10:36 pm
Oh, geez! I’m only two articles in and already depressed What a crazy, backward idea. But it’s also sad that people are so motivated to vote with their dollars (whether boycotting Chick-fil-A or cleaning out the shelves at Hobby Lobby) but won’t show up for actual elections… arg…
March 31, 2014 at 10:48 pm
It is my pleasure, and thank you for the gracias reply! I am sure we’re all guilty of it from time to time of partisan biases but if we all attempted to look at the actual documents, history around it, essays written about it, and court precedents to actually take a look at our disagreements. I would more compromises could be made. I am often guilty of seeming perhaps harsh in my assessments but it’s merely I am guilty of being a man of pragmatics, which is often interpreted as mean spirited. I would definitely recommend to you of taking a detailed look at Federalist 29 by Alexander Hamilton. In my opinion, and other more scholarly folks, Hamilton was making a case for a professional army within a energetic federal government. I think you’ll find he did mean a more professional army within our nation that was in the “American sense”, fashioned in the British manner. Hamilton had little to no state ties being born and living in Caribbean area until his college years, he was an ardent believer in empire building and nationalism, which of course this all led to the bit of a problem with Hamilton being the head of an army during the Whiskey Rebellion.
Which speaking of the Whiskey Rebellion, I am also very studied on Alexander Hamilton, him being a very pragmatic man, I definitely look to him in that manner. Many of the revolutionaries were volunteers, but also many were paid with IOUs, that in the early days of the republic looked to have way of being paid. When Hamilton got Jefferson, and Madison to agree to the assumption of all state debts from the war, he created also a Bank of the United States to pay out these IOUs the only problem was that many war veterans had sold them for pennies to the rich who could take on more risky investments. There of course was an outcry when these were starting to be repaid but Hamilton being pragmatic thought those veterans selling their IOUs gave up on America, so they shouldn’t get to benefit from those who invested in America. This led to hostility.
I’m also interested to see how the Hobby lobby case plays out in regards to the Citizens United case, studying a few cases with the Supreme Court a lot decisions are based off of court precedents, stare decisis. Sotomayor made the argument that corporations can’t practice religion, and she was a dissenting vote in the Citizens case but the court has a history of former cases building upon others. It’s interesting that she’s not following in that suit.
April 8, 2014 at 6:30 pm
Hi Phadde,
Sorry it took me so long to read up on the Federalist papers a bit and the history a bit further. First of all, thanks again for the suggestions, and secondly, you don’t strike me as mean-spirited in the least. And as a starry-eyed dreamer myself I accept that you pragmatic folk are much more useful in real life 🙂
Now, from what I understand of Federalist 29, Hamilton was calling for more centralized control of state militias, which was definitely lacking during the Articles of Confederation era. He seemingly acknowledges that his readers would think that “standing armies are dangerous to liberty” but gives two arguments for why the present situation is different, namely: 1) It’s hard to coordinate independently-controlled state militias against foreign enemies or even interstate crime; and 2) The republican government isn’t prone to falling into tyranny the way that monarchies are. According to Wikipedia which failed to give a proper citation there were “as little as 8” permanent, paid national army soldiers during the time of the Articles of Confederation. I tried to find a reliable history on how the army actually (not just ideally) was organized, but couldn’t come up with anything. I suppose I’ve always assumed that by “army” – as in, that thing the President is to be Commander-in-Chief of – what was initially meant was precisely just the state militias under more centralized control rather than a standing force of full-time soldiers like those that fill the army today. In Federalist 29 Hamilton also seems to call what he proposes a “substitute for a standing army.” I have to admit though that you know far more on the subject than I do, Phadde! So I consider myself schooled for now – though I’d love to read a good article or book on the subject anyway, it was certainly such an interesting time in history.
April 13, 2014 at 3:38 pm
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