REGULATING THE MILITIA

 Blumenthal
Senator Chris Murphy of Connecticut : a vote was taken, but no action…yet

Content

“Gun Control” is back in the national conversation. As always happens after an horrific mass shooting, the 80 to 90 percent of us who want weapons regulated more strictly are raising our voices. So far, every time we have spoken up, nothing has been legislated. I think this time it will be different.

Yes, the four gun regulation bills voted in the Senate on Monday were all defeated. Few offered more than a token advance. But this was a first move in what I think will be a much more effective campaign to restore traditional regulation of weaponry and ammunition.

Before I explain why I think this, I’d like to examine the Second Amendment, whose words gun rights people think support their cause. They are mistaken, historically and legally. Their individualist view of the “2 A” is actually quite  new. Until about 40 years ago, few serious policy advocates argued for it.
What does the “2 A” mean ? Its ungrammatical syntax presents a challenge, but Federal Courts have analyzed it at length using both textual analysis and historical record. Justice Stevens, in particular, wrote an exhaustive op-ed about the “2 A” a few years ago; I post a link to it here : https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiZ07z9qLnNAhXJ0h4KHRsADu4QFggcMAA&url=https%3A%2F%2Fwww.washingtonpost.com%2Fopinions%2Fthe-five-extra-words-that-can-fix-the-second-amendment%2F2014%2F04%2F11%2Ff8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html&usg=AFQjCNHVwAOq6gRAKKqJgbF4zMAvDkJ5YA&bvm=bv.124817099,d.dmo
I shall write my own analysis next, but first let me quote the “2 A” itself :  “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.”
What do these words mean ? First of all, they form part of the Constitution’s  Bill of Rights : Amendments whose purpose is to bar the Federal Government from doing certain things : in the case of the Second, creating a standing army of professionals or mercenaries — as most armies of the 1770-1790 period were — who were, for the most part, not drawn from the citizenry and who frequently were inimical to it. The “2 A” doesn’t even speak of a Federal armed force; it talks of the security of a free State. In 1789, there were thirteen free States.
As the armed forces thus sanctioned were to be STATE forces, so the STATE in which they were formed was charged with assuring they be “well regulated.” That the “2 A” gives its sanction to STATE regulation, and not to individuals, is made clear in that its wording is taken directly from a similar clause in the 1689 English Bill of Rights, in which an INDIVIDUAL right to keep and bear arms is granted to Protestant citizens to “have arms for…a right to own arms for individual use and to bear these same arms both for personal use and defense.” Those words were left out of our “2 A.”
They were left out, almost certainly, because the English Bill of Rights dealt with a government headed by a Catholic king who waged religious war against a mostly Protestant citizenry. Whereas our Constitution, and our Bill of Rights, were negotiated by the very citizens who would be entrusted with government. All that the “2 A” wanted to establish was that in the new arrangement of power, armed force would be a State matter rather than a Federal one. Of “individual” rights, there is no word. (That no “individual” right was contemplated, was shown when, in 1794, President Washington called out State militias to pout down the Whiskey Rebellion.)
You will note, also, that the “2 A” speaks of “the people”, collectively, not of individuals. It addresses the bearing of arms by battalions and regiments, not by isolated individual persons.
The Second Amendment’s purpose was ended by Federal conscription in our Civil War. Federal conscription was accompanied by Federal armories and troop barracks (the quartering of mercenary armies in private houses was a major grievance, addressed in the Third Amendment, which is complementary to the Second). And though the 1863 draft ended, wars with Western Indian tribes required that a Federal cavalry be kept in being (such a force, General Custer led to disaster at Little Big Horn.) By the time of the First World War, a Federal conscript army, with armories and barracks, was firmly and finally in place, to which the various State militias were auxiliary as a National Guard.
The “2 A” having been rendered moot by conscription and a standing army, Courts have labored to figure out what application it could possibly have left. That the keeping of weapons by citizens could be regulated and restricted was never in legal doubt; and many such Federal laws were adopted and upheld. As far as I can tell, however, the “2 A” retains a residual meaning that can guide the law of weapons regulation, and it is this :
As the Amendment’s purpose is to encourage each State to organize a citizen militia, and to see it well regulated, each state can make its own laws governing who may be admitted to the State militia, and under what conditions, and restrictions, and with what training. The only thing a State evidently can NOT do is to not organize a militia at all. And as the Amendment authorizes only an organized and regulated militia — expressly NOT individual decisions as to whether to bear arms or not — the State, and the Federal Courts, can restrict such individual arms bearing to such ever degree they deem wise, saving only that individuals can never, except under regulation, be absolutely barred from participating in the State militia.
Application of the “2 A” is complicated by the 14th Amendment. Because equal protection of the laws, State and Federal, is guaranteed to all who live within our nation’s jurisdiction, no state militia regulation or individual weapon bearing restriction can be arbitrary or whimsical. Weapons restrictions must apply equally to all persons.
An opposite view of the “2 A” has gained power during the 40 years since gun manufacturers and their supporters took control, of the NRA — an organization which had always been a supporter and enforcer of gun restriction legislation. This new view of the “2 A” grants individuals an un-infringeable right to keep and bear arms wherever and whenever, and arms of all kinds. This view was that of the English Protestants in 1689; it was most emphatically NOT the view of those who vted to ratify the Constitution.

There are excellent policy reasons why this view of the Second Amendment cannot be allowed. It sanctions vigilantism. It views law enforcement as the enemy. It implies sedition.

No government can permit the existence of armed individuals, claiming the right to own whatever weapons they want, and to use them whenever and upon whomever they deem the need. We have a criminal justice system to do that. We create law enforcement departments to do that. We encumber all such agencies with strict rules of conduct (much of it prescribed by the Bill of Rights !) and with being agents of, and answerable to, all the people. No person may on his or own hook claim for him or herself these powers. But that is precisely what the individualist view of the Second Amendment asserts.

So far, the small minority of Americans who advocate this view have had the political field to themselves. Backed by big money from the makers of weapons and ammunition, and fueled by activist passion, they have overwhelmed the efforts of those who support stricter weapons laws. This imbalance of power is shifting at last. Big, big money is coming into play on behalf of weapons restrictions, there are more regulations activists than ever, and in the context of a national election, the traditional view of “2 A” legislation is almost certain to win the day.

It can’t come soon enough.

Can greater diligence monitoring weapons usage stop assaults like that at Orlando ? Maybe, and maybe not — yet. There are some 320 million guns out there, an d the mindset that you are better off if you shoot first and not wait for the police.

But this view is immensely wrong. In a  real world shooting situation, “a good guy with a gun” will almost certainly not be able to (1) unholster (2) unlock the safety (3) identify the target (4) aim (5) hit the target (6) without hitting others and (7) when the responders come, and they see said “good guy” moving tactically with a gun, they are going to shoot him or her because they have no way to know who is the good guy and who isn’t.

Enforcing the peace is much, much better left to duly authorized, trained officers. Yes, it takes time for them to arrive; stalling tactics need to be trained for. Can officers rescue everybody ? No. No human institution can do that or promise it. There thus remains room for worry and for argument; but no such argument can use the Second Amendment, because its old words support the traditional view.

— Mike Freedberg / Here and Sphere

UPDATE : The force bills forf which House Democrats demonstrated yesterday lead this issue into a dead end of debates about due process, probable cause, and reasonable cause as we debate the Patriot Act and its dangerous implications for personal freedoms. No such discussion can be decided, or should be had, because as I have shown above, there IS NO right for any private citizen to own or keep militia weapons except within restrictions which the “militia amendment” urges. The Federal Congress is quite free to restrict or regulate private ownership of such weapons as it sees fit.  -30-

 

 

Author: hereandsphere

Here and Sphere is an online journal of news, opinion, reviews, advice, & bits n' pieces of everything else - from HERE to SPHERE...... Co-founded by Michael Freedberg, a long-time Boston Phoenix journalist, and Heather Cornell, a South Coast Massachusetts columnist and editor.

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