The Second Amendment is a Mess

By Eric Black

When Second Amendment extremists start talking about how Hitler took away people’s guns, are they alluding to the so-called “insurrectionist” motivation behind the Second Amendment?

First of three articles.

When he was in Minneapolis in February to argue for his proposed new gun-control measures, President Obama said “there’s no legislation being proposed that would subvert the Second Amendment.”

Obama, who taught constitutional law at the University of Chicago, surely has a more informed and nuanced view of this than I could ever hold, but he can’t possibly be as confident of that statement as he sounds because the Second Amendment is a mess. You don't have to tune in very closely to the 2013 debate to hear opponents of additional gun control measures denouncing the proposals as not only bad ideas but blatant violations of the constitutional right to bear arms.
For example, although the second-biggest gun rights advocacy group in the country (the Citizens Committee for the Right to Keep and Bear Arms at least claims to be the second biggest) has endorsed the so-called Manchin-Toomey compromise proposal for increasing background checks on would-be gun buyers, the biggest group, the NRA, has denounced the Manchin-Toomey compromise pledging that: "The NRA will oppose any amendments ... that restrict fundamental Second Amendment freedoms... This includes the misguided ‘compromise’ proposal drafted by Sens. Joe Manchin, Pat Toomey and Chuck Schumer." Likewise, when the Minnesota Legislature considered a bill requiring uniform background checks, Republican state Rep. Jim Newberger called the measure “an egregious attack on the Second Amendment.”

Of course, thanks to the First Amendment, people can say pretty much whatever they want about what the Second Amendment means, but none of them know because the Second Amendment is a mess.

The post-Newtown moment, when it seemed for a few weeks that strong gun-control measures might be adopted by Congress, is blowing over. The current conventional wisdom is that Congress will not adopt any new restrictions on the purchase of “assault” weapons or high-capacity magazines. According to conventional wisdom, the Senate will at least be allowed to vote on gun measures rather than be blocked by filibusters, but it seems unlikely that anything that could be called gun control, including the Manchin-Toomey amendment, will pass in the Republican-controlled U.S. House as long as the NRA opposes it. At most, some current loopholes will perhaps be closed in the existing laws that check would-be gun purchasers for criminal records or history of mental illness. We shall see.

I’m neither a hunter nor a gun-owner. I’ll confess that on the one hand, I favor most of the common gun-control proposals, and on the other hand, I have no great confidence that any of them would greatly reduce U.S. gun violence.

Since, as regular Black Ink readers know, I’m fairly obsessed with (but no longer worshipful of) the U.S. Constitution, I’ve spent considerable effort over recent weeks trying to understand what rights the Second Amendment might guarantee. The screed below is the first of three in which I’ll try to pass along what I’ve learned.

Key words

The Second Amendment, like the rest of the first 10 amendments which we call “The Bill of Rights,” was drafted by the First Congress in 1789 and quickly ratified as part of the compromise for final acceptance of the then-brand-new U.S. Constitution.

The Second Amendment arose at time when most its key words and phrases meant something quite different from what they would mean today and from circumstances also fundamentally different ­ so different that its modern meaning is almost completely detached from its original purpose.

For two centuries, the Second Amendment was pretty much a dead letter. States and the federal government adopted various gun-control measures. None were ever struck down on Second Amendment grounds. Until, that is, starting in 2008, when two recent 5-4 Supreme Court rulings stirred up such a Second Amendment mess that it is perfectly unclear what the Court’s conservative majority might eventually decide would violate the Second Amendment.

They have stirred it up so much that I can’t help but wonder whether the jurisprudence of gun control will soon join abortion and campaign finance as (sub rosa) litmus test issues for future Supreme Court nominees.

Certainly, some advocates of gun rights believe that everything Obama proposes would subvert the Second Amendment. But given the recent revolution in Supreme Court interpretation of the Second Amendment, it would be pretty risky to predict what the Supreme Court might think of any limit on who can “keep and bear” any type of weapon and what kind of government-imposed background check can be imposed.

If one wants to try to predict what limitations on “the right of the people to keep and bear arms” the Supreme Court might allow, the story of how the Amendment came to be in the Constitution, and the interpretations the Supreme Court has made of it in the two-plus centuries since then, are, of course, important elements. Those will be subjects of the second and third parts of this miniseries. But the interpretation of any law must start with the actual language of the law as enacted. So, for today, let’s just put the text of the Second Amendment under the microscope. Here is its full text:

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.

Some problems
It’s a disaster. Seriously. Here’s just a sample of problems it presents.

What’s a militia? If you aren’t in a militia, does this have anything to do with you? Or perhaps (and this is roughly the current Supreme Court interpretation) what if “militia” is just an 18th century word for all the able-bodied males in a state who had better have access to arms in case their state needs them to secure its freedom even though they might not actually “belong” to what we 21st century-types would recognize as a militia, like a National Guard unit that you actually joined and were trained by and that actually has a command structure.

But if “militia” doesn’t refer to an organized group, what’s “well-regulated” doing in there? Who gets to decide whether the (actual or theoretical) militia you are in is well-enough-regulated to trigger (no pun intended) whatever impact the militia clause has? Who is doing the regulating? The state? The United States? The (non-existent but theoretical) organization of all the gun-owners in the state acting as self-regulators?

This “free State,” what is the threat to its freedom that the well-regulated militia is necessary to secure? Are we talking about a state defending its freedom against neighboring states, against foreign states, against the United States? If you listen for it, you will hear rhetoric from the most vociferous advocates of a broad reading of the Second Amendment suggesting that the deepest underlying purpose of the Second Amendment was to allow the people to resist the tyranny of their own national government.

And frankly, if you think about the larger history behind the whole Bill of Rights, the idea that the amendments were meant to strengthen state and/or individual power against the potential tyranny of the powerful new federal government that had just been created by the Constitution of 1787 might have been in the air in 1789 when the Bill of Rights was drafted. But what does it mean in 2013?

When Second Amendment extremists start talking about how Hitler took away people’s guns and Stalin took away people’s guns and no one had better try to take away their guns, are they alluding to the so-called “insurrectionist” motivation behind the Second Amendment? Do they imagine literal combat between private gun owners in some particular state and the actual organized U.S. military?

And that reminds me, what kind of “arms” do “the people” have a right to “keep and bear?” Half or more of modern gun control talk is about limiting the average citizen’s access to certain specific kinds of guns (like automatic weapons, for example) that the 1789 crowd knew nothing of. And, come to think of it, “arms” is a broader term than “guns.” Bazookas are “arms” and so are nuclear warheads, although the 1789ers didn’t know about them. The actual language of the amendment contains not a syllable or a hint of any limitations on the kinds of arms that “the people” have a right to “keep and bear.” Presumably, that doesn’t mean individually owned nukes, but you won’t find anything in the language of the Second Amendment to suggest otherwise.

I suppose I could do another whole comedy routine on the possible meanings of “keeping” and “bearing,” which actually might be quite relevant in the era of the “concealed carry” movement, but hey, you have other things to do with your day. Let’s just conclude with this: If you had to apply the plain language of the Second Amendment to the modern questions gun controllers and anti-gun controllers face, it would either mean way too much or way too little.