What a curiously disjointed debate we’ve been having over the subject of guns – gun ownership, gun violence, the right to carry guns concealed. This isn’t anything new. In fact, it’s been disjointed for as long as I can remember. Whittled down to its barest essence, this is how we talk about it:
Random Politician: “In light of [insert here the latest horrific and senseless mass shooting], we need to do something to control gun violence. And so I am introducing a bill that bans assault-style rifles, limits magazine capacity, and requires a universal background check before purchasing a firearm.”
Gun Owner: “Wait just a doggone minute. I have a Constitutional right to keep and bear arms. You’d better not be thinking for even a minute that we’re going to let you interfere with our right to defend ourselves and go hunting.”
Random Politician: “No, we’re not going to do that. But you don’t need an AR-15, or a 30-round clip to go hunting or protect yourself. And we certainly don’t want felons and others who are prohibited from owning guns to skirt the law by getting their weapons through a back-alley transaction with some sketchy arms-dealer. These are just common-sense regulations.”
Gun Owner: “The Second Amendment settled this question in 1791! You can have my gun when you pry it from my cold, dead hands!”
And so it goes, with the combatants warily circling the Second Amendment, but never looking directly at it. Neither side is eager to engage the other on what this constitutional provision actually means. And that’s because one side can’t find in it the historical succor it wants, and the other fears what would happen if it did.
Here’s the thing. The Second Amendment was written as a very practical response to the way the world worked at the time of its enactment. That’s not to say there isn’t an unchanging principle that undergirds it – there is. But it is to say that some of the practicalities of the world circa the 1790’s just don’t obtain anymore. Let me see if I can explain.
The Second Amendment says this: “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.” A terse statement, with a dash of enigmatic grammar. But there can be no doubt that the Amendment sees the right to keep and bear arms as somehow related to a well-regulated militia.
The historical understanding of the rationale for this connection may surprise some and offend others. So instead of paraphrasing it in my own words, I’ll direct you to someone with great historical and scholarly heft. I give you the late Joseph Story, who was once a Justice of the United States Supreme Court (1811-1845) and Dane Professor of Law at Harvard University (back when that meant something about the caliber of your constitutional analysis), and will always be the author of “A Familiar Exposition of the Constitution of the United States.” He is still considered to have provided the most authoritative commentary on our Constitution. And his temporal proximity to that document grants him unmatched credibility on the subject.
If you are prone to the vapors, you might want to sit down for this. In describing the purpose of the Second Amendment, Justice Story said:
“One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.” Exposition, §450.
Oh my. Can it really be that a Justice of the Supreme Court suggested that a significant inequity in martial capabilities between the national government and the people might pose some danger to our liberties? Well . . . he not only suggested it, he emphasized it:
“It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.” Story, §451.
That’s the danger Justice Story saw. So how does this relate to the Second Amendment? He said the State-based militias, composed of citizens with the right to keep and bear arms, would act as a deterrent to federal overreach, and even provide a military response if necessary:
“The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. . . . The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Story, §451.
So, as it turns out, the Second Amendment is not, in the first instance, about hunting, nor personal self-defense. According to Justice Story, it’s about a military response to federal encroachment on the citizenry’s liberties. In the 18th and 19th centuries one could still speak of such things in rational terms. After all, the military’s basic firearm wasn’t much different from what Farmer John used to hunt deer. And when we adopted the Second Amendment it hadn’t been that long since a citizen-army (with, admittedly, some significant outside help) defeated the world’s premier military power. There just wasn’t that much disparity between a regular army’s basic weapons and what was available to everyone else.
That’s just not the case anymore. Not by a long shot (pardon the pun). Farmer John still has the rifle he uses to hunt deer, and his neighbor might have a Smith & Wesson handgun with a 17-round clip. But so what? The United States military has aircraft that can engage targets before they are even seen, cruise missiles that can cross entire states, tanks that fire on the run with pinpoint accuracy, and aircraft carrier groups that each contain more military might than the world’s most powerful countries when the Second Amendment was written.
Even if we were to determine the federal government had so seriously infringed on our rights that an armed response was necessary, what could we do about it? That’s right – nothing. As a practical matter, we long ago grew beyond the justification for the Constitutionally-protected right to keep and bear arms. The necessity of a hyper-capable, permanent military made militias obsolete as any kind of counter against the “usurpations and arbitrary power of rulers,” as Justice Story would say.
That’s why our gun debate is so disjointed. If pro-gun activists invoked the primary meaning of the Second Amendment, they wouldn’t be talking about hunting or self-defense. They would be talking about State-based militias with enough combined firepower to resist our federal military if necessary. They would also be talking about forming those “well regulated” militias, complete with the obligations, training, regulations, and accountability to State governments that go with them. If you want the right, you’ve got to take the correlative responsibilities as well. But we don’t talk about this, of course, because no one seriously contemplates ever challenging the military power of the United States.
The pro-gun crowd tends to ignore the primary justification for the Second Amendment, and focuses instead on its derivative benefits. That is to say, the Second Amendment protects the right to keep and bear firearms so that you can participate in a well-regulated militia. Once that right is protected, however, you can then use the arms for any other legitimate purpose as well. But it starts with the militia. If you can’t defend the necessity for a militia, then the Second Amendment doesn’t count for very much in your argument.
Anti-gun activists, on the other hand, are also afraid to talk about the real Second Amendment. If they did, the conversation wouldn’t be about banning “assault rifles” or high-capacity magazines anymore, it would shift pretty quickly to identifying what types of real assault rifles – military-grade weaponry, that is – the citizens must have so that they may form effective militias. And that might call to mind the Swiss militia and the rampant non-violence attendant on every Swiss male between 19 and 34 having a military weapon sitting in his closet. That’ll douse the more fiery anti-gun rhetoric in a heartbeat.
If we aren’t willing to engage the primary meaning and purpose of the Second Amendment in our gun debates, then we must instead rely on the natural law right to provide for oneself – both food (through hunting) and self-defense. Just because this is not the motivating rationale and purpose behind the Second Amendment doesn’t mean the rights don’t exist or may be infringed by the government at will. But it does mean that reasonable regulations are permissible.
Should the government limit the capacity of a magazine? Should it outlaw scary looking guns? The answers will differ depending on whether we are talking about participation in a militia, or instead self-defense and hunting.
The nature of the right informs its exercise. If you’re talking about potentially having to fight as part of a militia, you’ll want the biggest, baddest, highest-capacity weapon you can keep pointed in the right direction while you’re firing it. If you’re instead talking about hunting or self-defense, you won’t likely need that machine gun you’ve had your eye on.
These are questions of prudence, not principle. They require us to conduct cost-benefit analyses, not draw up in battle formations. So if there is evidence that fully automatic weapons create a public hazard that outweighs their utility in exercising your right to hunt and self-defense, there is an opportunity for reasonable regulation that is fully consistent with conservative principles. But let’s make sure it’s actual evidence, not scare tactics.
To do this, however, we have to re-joint our conversation. We have to accurately identify the source and nature of the right we are trying to protect, and then take a hard look at whether the way we propose exercising that right creates an unjustifiable public hazard. There is a way through this thicket. We just have to be jointed, so to speak.