On The Second Amendment
This document is relatively long but hopefully, after reading it, you will have a better understanding of both the Second Amendment and our position on gun control.
The Second Amendment is probably also the second most controversial of all amendments, appropriately coming in right behind the First Amendment. While The LGC is not primarily a lobbying/political activist group, we are obviously motivated by the politics of groups with whom we disagree. Since that disagreement falls squarely on the shoulders of the Second Amendment, and the extent to which it can apply, it is only appropriate for us to take up the question of this notorious amendment.
Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution. . .
Article II. 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 is these 27 words which have been tossed about by both sides of the “gun issue” as supporting their particular stance. We encourage you to view the original document, as well as many others, at the Library of Congress to make up your own mind.
Two key parts of this amendment are critical to this debate and your interpretation of them can alter the entire meaning. "Well regulated" and "Militia" have been interpreted to mean a variety of things depending on your side of the issue. The rest of the amendment is relatively straightforward except that an argument can be made as to whether "the people" is a collective term as in "we, the people, have an army" or means each and every person. We would argue that the intent of this amendment is that they are indeed referring to individual rights. A quick glance down the page at the Fourth Amendment may help to clarify: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ” Or the First: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. " It appears that when referring to the entirety of the United States as a whole, the document refers to that body as “people”. We contend that it is not a collective reference but an individual reference. If you make the argument that it is a collective reference, you must also argue then that the First Amendment only allows people “freedom of speech” as a collective body and not as individuals. This would mean that you could not speak out against the government, assemble peaceably or petition the Government unless you were doing it as part of some larger, undefined group. If we are to disallow individuals the right to keep arms, then we must also disallow individuals the right to free speech.
Assuming then that we are correct and the term “of the people” refers to individuals, then what about that first clause "A well regulated Militia"? A militia is surely a collective group, and defining it as a well regulated one must surely mean that they are referring to the Army or the National Guard or some similar organization. What exactly was a "Militia" to the men who signed these amendments? Dictionary. com provides us with these three definitions:
1. An army composed of ordinary citizens rather than professional soldiers.
2. A military force that is not part of a regular army and is subject to call for service in an emergency.
3. The whole body of physically fit civilians eligible by law for military service.
All three of these are applicable here. Militias were the armies of individual states during emergencies. They were made up of ordinary citizens who were often forced into service because they were “eligible” and made part of an organized military unit. Read the Militia Act of the Commonwealth of Massachusetts (1793) that follows this article. In it, you can see that it calls for "each and every free, able-bodied white male citizen, of this, or any other of the United States residing within this Commonwealth, who is, or shall be of the age of eighteen years, and under the age of fortyfive years (except as is herein after excepted) shall severally and respectively be subject to the requisition of this Act, and shall be enrolled in the Militia, by the Captain or Commanding officer of the company". So, every male, white citizen is bound by this act to become part of the Militia of Massachusetts. Also, if you showed up and "shall neglect to keep himself armed and equipped as aforesaid, or who shall, on a muster day, or at any other time of examination, be destitute of, or appear unprovided with the arms and equipments herein directed (except as before excepted) shall pay a fine not exceeding twenty shillings. . . ” In other words, they are requiring you to be a part of this military unit, and to provide not only your own uniform but your own arms. Failure to do so will result in punishment. You will not be part of the regular Army (trained soldiers) but will supplement them. You should also note that the Militia Act of 1792 allowed the President to call out a state’s Militia under certain emergency situations.
It is clear that the men who signed the Constitution saw a value in being able to call upon a state’s Militia that provided their own arms. So, the first part of this amendment sets up the reason why they think the right that follows should be allowed. Because an armed military force made up of the populace at large was a powerful weapon. Therefore, it is prudent to allow people to keep arms for themselves. To think that they did not have service to the country in mind when framing that amendment is absurd. And, of course, this would be a “well regulated” Militia where men would report to certain locations and be assigned to a unit that was part of some larger unit, much like the professional soldiers. This would be an army of un-trained soldiers and as such it might require even more regulation.
It is evident then that individuals are given the right to keep arms so that, if the situation should arise, we can be called upon to bring our guns and form a Militia to defend the homeland. How effective would such a measure be in the modern world of “smart” bombs and attack helicopters? Probably not very – although the ongoing struggles in Iraq and Afghanistan show how difficult it is to overwhelm a well armed people. Regardless, our constitution allows for individuals to keep arms as a contingency for war. Most, if not all, states currently have a volunteer military force that evolved from the Militia idea. Check out the web pages for the Tennessee State Guard, the South Carolina State Gaurd, and the New York State Guard as examples of current, volunteer Militias that are under the direct control of the state. Without trying to ferret out individual laws regarding Militias in all fifty states, it is worth noting that the United States Code, which is the "codification by subject matter of the general and permanent laws of the United States" has this to say about the Militia in "Title 10, Subtitle A, Part I, Chapter 13, Section 311. Militia: composition and classes":
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are:
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
So, while most people don’t realize that they are indeed part of a Militia, that is what the law currently states. Even though it is doubtful that such a Militia would be an overwhelming force to an invading enemy, it may make the all important difference – much as the Militia of the Revolutionary War did. Regardless, the law currently supports the idea that we are given a right to bear arms so that we may rise to duty, if the need presents itself, as part of a Militia. It also refutes one of the common arguments, that the National Guard has superseded the idea of a Militia.
Thus far, we don’t sound too different from the right wing gun organizations – and we would like to think we actually made a better argument than some of the misleading, vitriolic, propaganda that is spouted by some right wing gun organizations concerning this issue. Hopefully we have convinced you that our Constitution does indeed allow for citizens to “keep and bear” arms, even if you don’t agree with the idea or the justification for it. If you don’t agree, and think that guns should be banned, you are not alone. We do feel, however, that you are the minority. One thing to note is that people often argue that the Second Amendment is in place to provide a means by which the populace can shed a tyrannical government. If this indeed was the intent, it is certainly not made clear by the wording of the amendment. The wording provides only that people are given the right to bear arms so that they can be of service during a time of war. It says nothing about using the arms to overthrow or intimidate the government, although this might be inferred considering that was exactly what the nascent country was doing at the time.
It is at this point that we split from the right wing, because the next logical question is the one that causes the most problems. Most legislators would not consider “taking your guns” as the right wing propaganda espouses. Not only would it require an unlikely changing of the constitution, would constitute political suicide, and would be logistically impossible to carry out, it also isn’t something that most politicians actually want to do – regardless of how much the right tries to convince the public otherwise. While it is unlikely that they want to take your guns away from you, they most likely want to limit the types of weapons that you can posses. For every right, there must be a limit. According to the Declaration of Independence, one has the right to “pursue happiness” but surely that right is not limitless; one cannot pursue happiness if it infringes on someone else’s right to pursue happiness. There is a Constitutional right to “free speech” but we have laws against slander. Similarly, one has the “right to keep and bear arms” but when that right infringes on the rights of others, limits must be drawn. Most people, for example, would not want their slightly nutty next door neighbor to drive up in an M2A2 Bradley Fighting Vehicle (i. e. a big dang tank) and park it in their backyard. However, if you extend the right to “keep and bear arms”, isn’t this “fighting vehicle” an “arm” which may be kept? How about a grenade launcher? A nuclear weapon? A belt fed automatic machine gun such as the M249 SAW that can theoretically fire 850 rounds per minute? An intercontinental ballistic missile? Somewhere there must be a line. This line is really the heart of the entire debate. It is not a question of whether or not “the left wants to steal your guns”, it is a question of what is a reasonable limit of the term “arms” that will not interfere with the safety and security of others. Along these same lines, laws aimed at making it difficult for potential criminals to obtain weapons, are also crafted to limit the effect that their right to arms has on someone else’s right to happiness.
And this is where the distinction is made. We feel that any law abiding citizen would have no problem with the sensible propositions we have made regarding gun control.
All of these proposals are still simply a matter of trying to minimize the right of people to keep arms from affecting other rights enjoyed by United States citizens. For example, by requiring background checks, we have the ability to limit the access that convicted violent felons have to weapons. By becoming a violent felon, you have broken a serious law, and in so doing have given up many of your rights. Many felons should be happy that they are allowed back on the streets, never mind trying to get a weapon. By restricting their “right” to keep arms, we are minimizing the potential for them to infringe on the rights of those around them. And if you don’t believe that firearms infringe on other’s rights consider this: a teenager in the United States today is more likely to die of a gunshot wound than from all the “natural” causes of death combined.
Excerpts from The Militia Act of the Commonwealth of Massachusetts,
enacted June 22, 1793, providing for the organization of the Militia.
From http://www. potowmack. org/597mil3. html
An ACT for regulating and governing the Militia of the Commonwealth of Massachusetts, and for repealing all Laws heretofore made for the purpose; excepting an Act, entitled, “An Act for establishing Rules and Articles for governing the troops stationed in Forts and Garrisons within this Commonwealth, and also the Militia when called into actual service. ”
WHEREAS the Laws for regulating and governing the Militia of this Commonwealth, have become too complicated for practical use, by reason of the several alterations which have from time to time been made therein: Therefore,
I. BE it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same, That the several Laws heretofore made for governing and regulating the Militia, be, and hereby are repealed, except an Act, entitled, “An Act for establishing the Rules and Articles for governing the Troops stationed in Forts and Garrisons within the Commonwealth, and also the Militia when called into actual service. ”
Provided nevertheless, That all officers actually in commission, agreeably to the laws which are hereby repealed, and in grades which are established by the Act, shall continue in commission in the same manner, and in the same authority they would, in case the said laws were still in force; and all actions depending in any Court by force of said laws, shall and may be prosecuted to final judgment and execution. .
II. And be in enacted by the authority aforesaid, That each and every free, able-bodied white male citizen, of this, or any other of the United States residing within this Commonwealth, who is, or shall be of the age of eighteen years, and under the age of fortyfive years (except as is herein after excepted) shall severally and respectively be subject to the requisition of this Act, and shall be enrolled in the Militia, by the Captain or Commanding officer of the company, within whose bonds such citizens shall reside, within three months from and after the passing this act;. . .
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VII. And be it further enacted by the authority aforesaid, That every person who shall be lawfully entitled to be commissioned to any office in the Militia of the Commonwealth, shall at the time of receiving his commission, take and subscribe the oaths and declaration required by the Constitution, before some Justice of the Peace, or some General or Field Officer, who shall have previously take and subscribed them himself, and who are here by authorized to administer the same; and a certificate thereof shall be made on the back of every commission, by the Justice of the Peace, or General or Field Officer, before whom the said oaths and declarations shall have been taken and subscribed.
VIII. And be it further enacted by the authority aforesaid, That the Commanding Officer of regiments, shall appoint the non-commissioned Staff Officers of their respective regiments;–The Commanding Officers of companies shall appoint the non-commissioned officers, including the Clerks of the respective companies,–All non-commissioned Staff-Officers and Serjeants shall receive warrants under the hand of the Commanding Officer of their respective companies,–All non-commissioned Staff-Officers and Serjeants shall receive warrants under the hand of the Commanding Officer of their respective regiments or corps,–And the Adjutant shall keep a record in a suitable book, to be kept for that purpose, of all warrants which shall be issued:–And no noncommissioned Officer shall be deemed to have resigned his office, until he shall have done it in writing to the Commanding Officer of the regiment or corps to which he belonged; and shall have obtained his discharge also in writing, from such Commanding Officer:–And no non-commissioned Officer or Private, shall be disenrolled from the Militia for disability, without a certificate from the regimental Surgeon and Mate.
IX. And be it further enacted by the authority aforesaid, That every company shall have a Clerk, who shall be also one of the Serjeants, an he shall be sworn to the faithful discharge of his trust; and that shall be his duty always to keep a fair and exact roll of the company, together with the state of the arms and equipment belonging to each man, which roll he shall annually revised and correct in the month of May, as is herein after directed; to register all orders and proceeding of the company in an orderly book, which shall never be alienated from the company; to keep exact details of all detachment; to call the roll whenever the company is assembled; to examine the equipments when thereto required, and to note all delinquencies; to sue for, recover and received all fines and forfeitures which are required by this Act to be recovered, and half to his own use for his trouble, and the other half to be paid to the Commanding Officer of the company, in trust, for the used of the company to which he belongs, excepting such cases wherein other provision is made by this Act, for the recovery an appropriation of fines and forfeitures. . . XI. And be it further enacted by the authority aforesaidThat no Officer of the Militia shall be discharged excepting by the Commanding Chief, on the request of such Officer, in writing, or by the Commander in Chief on the address of both Houses of the Legislature, or by being disbanded by a law of the Commonwealth, or by a judgment of the Court Martial, or by actual removal (The Major-general to be judge whether the distance is so great that he cannot conveniently discharge the duties of his office) or by twelve months absence, without leave of such Officer, from the district of his command: And no Officer shall consider himself exempted from the duties of his station, until he shall have received a certificate of such discharge. . .
. . .
XV. And be it further enacted by the authority aforesaid, That if any non-commissioned Officer or Private of cavalry, artillery, light-infantry, or other corps raised at large, shall neglect for the term of three months, to keep himself provided with an uniform of the company to which he belongs, as is directed by the Act, he shall be discharged from such corps, by the Brigadier commanding the brigade, and enrolled in the standing company in which he resides. . .
. . .
XIX. And be it further enacted by the authority aforesaid, That every non-commissioned Officer or Private of the infantry, who shall neglect to keep himself armed and equipped as aforesaid, or who shall, on a mister day, or at any other time of examination, be destitute of, or appear unprovided with the arms and equipments herein directed (except as before excepted) shall pay a fine not exceeding twenty shillings. . .
XX. And be it further enacted by the authority aforesaid, That every person liable to do military duty, who being duly warned shall refuse or neglect to appear at the time and place appointed, armed and equipped as by the Act is directed, for any muster, training, view of arms, or other military duty, shall pay as a fine for such default, the sum of ten shillings. . .
. . .
XXII. And be it further enacted by the authority aforesaid, That every non-commissioned Officer and Private of the Militia, who shall be disorderly or disobedient, or guilty of unmilitary conduct on a muster or training day, or at any other time when on duty, shall be confined during the time of the said muster or training, at the discretion of his Officers, and shall pay a fine not exceeding forty shillings nor less than twelve shillings, at the discretion of the Justice of the Peace to who complaint shall be made.
. . .
XXIV. And be in further enacted by the authority aforesaid, That every Captain or Commanding Officer of a company, shall call his company together three days in each year for company discipline, and once on the first Tuesday of May, annually for the express purposes of examining and taking an exact account of every man”s arms and equipment; at which time every article required by this Act shall be brought to the place of examination; and it shall be the duty of the Clerk, or in his absence of some other person to be appointed on the occasion, for the time only, by the Commanding Officer for that purpose to make out an exact roll of the company, and set against every man”s name the arms and equipments which shall belong to him: And every Commanding Officer of a company shall constantly keep by him a roll, with the arms and equipment of every man annexed to his name, as aforesaid, from which all detachment shall be regularly detailed, and the annual return of the company made; And the said roll shall be annually revised, corrected and completed, on the first Tuesday of May as aforesaid:: And every person liable to do duty in the Militia, who shall be absent at the examination or review or arms, in the months o f May, as aforesaid, and shall not send his arms and equipments to be examined, at the time and place appointed, he shall be fined for every article required in this Act, not so brought or sent to be examined, as in therein before directed, besides the sum of ten shillings, for non-appearances as aforesaid.
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XXVII. And be it further enacted by the authority aforesaid, That the rules of discipline approved and established by Congress, in the resolutions of the twenty-ninth day of March, one thousand seven hundred and seventy nine, shall be the rules and regulations of discipline, to be observed by the Militia of this Commonwealth; except such deviations from said rules, as may be necessary, by the requisitions of this Act, or some other unavoidable circumstances; and every Officer receiving a commission in the Militia, shall immediately provide himself with a book containing those rule.
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XXXII. And be it further enacted by the authority aforesaid, That whenever in case of threatened or actual invasion, insurrection, or other public danger or emergency, the Militia, or any part thereof, shall be ordered out or detached, if an person who shall be ordered or detached, in obedience of such orders, or shall not within twenty-four hours, after he shall have been notified as aforesaid, pay a fine of ten points, to the Commanding Officer, of the company to which be belongs,. . .
. . .
And whereas the good citizens of this Commonwealth are often injured by the discharge of single guns on a muster-day: Therefore,
XXXVII. Be it further enacted by the authority aforesaid That no non-commissioned Officer or Private, shall unnecessarily fire a musket or single gun, in any public road, or near any house, or near the place of parade, on any day or evening succeeding the same on which any troop or company shall be ordered to assemble for military duty, unless embodied under the command of some officer, and if any non-commissioned Officer or Private shall fire a musket or gun, except as aforesaid, on the said day or evening succeeding, without being embodied as aforesaid, he shall forfeit and pay a fine of five shillings, for each and every offense.
