It was the best of amendments, it was the worst of amendments…

They're coming after my arms!

They’re coming after my arms!

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.

Gracie

Gracie

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.

 

I may be dying of scurvy, but check out my bling!

I may be dying of scurvy, but check out my bling!

 

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.

 

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