My sporting wife
The Second Amendment does not secure any “right to bear arms”
The Second Amendment to the U.S. Constitution states,
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.
One must ask: Just what should this law have to do with gun ownership for home or personal protection? For the “license” here appears to be conditional: That is, “the right….to keep and bear arms” is necessary because—and therefore, to the extent that—“A well regulated Militia [is] necessary.” This implies that, if it becomes less than “necessary” (or if it has become clear that it is less than necessary) that “a well regulated Militia” be maintained, the mandate loses force.
Imagine I told the babysitter, “OK, being that those candies contain no allergens, I shall not infringe on your ‘right’ to feed them to my young child.” If the babysitter, after I leave the house, wipes a smudge from the list of ingredients, revealing one to which she knows my child is allergic, she could hardly justify dispensing them anyway on the argument that I told her she could.
No degree of “literalism” of interpretation will change this: Yes, I technically uttered the phrase, “I shall not infringe…,” but a phrase is not a statement—that is, a basic unit of words that makes sense (that is, the sense the speaker intends it to make) all by itself. (This distinction is very important; it captures, say, the difference between the phrase “I hate you” and the sentence [containing that phrase], “I hate youtube because it takes time away from you, the one I truly love.”)
For the babysitter, the feeding, or the license to act, is dependent on a condition—the child’s being unallergic to the food. And this condition isn’t met. Maybe it was met in the past—children can develop allergies with age—but it isn’t now. Maybe feeding allergens to a child is sometimes defensible, for reasons other than my “statement”; maybe, somehow, it is even defensible in this case. But if so, this license is conferred by something other than my words; it holds not because of, but rather in spite of, them.
To apply the analogy:
First, a well regulated “Militia,” as something distinct from a military or national guard, probably isn’t “necessary…to the security of a free State.” And even if it is “necessary,” it is unclear how ordinary home gun ownership furthers this project. Certainly, most gun owners don’t conceive of themselves or their gun ownership as part of any such project. And how could they? There are militias in operation but there isn’t “a Militia,” bearing the implications of the original, which could serve as the legal referent of the term.
(a) Some argue that the “Militia” is the military or national guard. If so, then fair enough—but again, ordinary gun ownership makes no clear contribution to these organizations, nor are average gun owners under the illusion that they become part of them when they buy a gun. (And those gun owners who actually happen to be members of these groups don’t pretend that their owning a gun for personal use is what makes them a member.)
(b) There is also an argument that today’s Militia is just that broad and loose community of gun owners who might rise individually or severally to counter vaguely emergent threats down the road—perhaps from the state itself. Like the formal membership of the Catholic church turned into the Protestant “Church Invisible,” this role, or a preparedness to assume it, defines membership in the group rather than a [formal] designation. But being the opposite of “well regulated,” this is likely beyond the scope of anything the framers had in view.
Even assuming the Amendment sanctioned guns for such an “invisible militia,” it is hard to see how the stated concerns of the typical gun owner fit into such a project. Home or personal protection by armed, isolated individuals does not carry the sense of unified collectivity conveyed by any normal understanding of “militia” action. Nor are most home invasions or other violent crimes acts of political usurpation, treason or “internal invasion,” such that deterring them qualifies as a matter of ‘state security.’ In brief, if this is what the Second Amendment supports, it would cease to cover the great majority of what its supporters cite it for.
(c) Of course, a minority of gun owners who appeal to the Second Amendment admit that the “original” American Militia, in that sense of a formal organization, is indeed defunct, but purport to be working to resurrect it—perhaps in the same way certain Protestant denominations are working to resurrect the church of Jesus Christ. And these persons do conceive their gun ownership to serve this project. To this one can only say that, however correct or truly “constitutional” the concept of Militia that drives them, the “products” of their effort do not in fact bear “the implications of the original,” nor has it any hope of being resurrected by way of these gun owners’ owning guns (or doing whatever they do with the ones they own). And this still presupposes the dubious idea that such a thing is, again, “necessary…to the security of a free State,” if it ever was.
Even if it did, a “right to bear arms” sheds no light on the real debates of gun enthusiasts
Up to now I’ve been addressing the use of the Second Amendment to defend the basic right to own firearms—that is, conversely, to defend against “banning guns.” But the Amendment is also cited against legal regulations on guns which fall short of a total ban. (This is predictable, as “taking away our guns” is never seriously ventured by a politician and thus makes for too amorphous and distant a target to generate much discursive mileage.) I say they use this kind of “argument” in the weak sense that, when met with the idea that some kind of waiting period or firearm safety device or licensing restriction is to be someway mandated by the state, they respond by saying it violates the Second Amendment.
Whether they acknowledge it, it is possible to conceive of gun regulations that Second Amendment proponents would support; for example, they would surely support “infring[ing] upon the right of…people” to arm small children, or to “bear” guns equipped with shrill loudspeakers which made bystanders’ ears for miles around bleed out at random, untriggered intervals. But if these regulations are valid, it is cannot be the case that regulation per se transgresses the Second Amendment. And if some regulations are to be admitted, then it is an open question whether there may be others. The whole “gun issue” becomes—for all parties—just a question of which regulations to put up, and which to discard. Indeed, a good many regulations—perhaps even every single one that has ever in fact been proposed or will be—may be indefensible. But the fact that there is a “right to bear arms” does not make it so.
For this reason, the whole issue of regulating firearms—again, short of a total ban—has nothing whatever to do with the Second Amendment, even if we interpret that Amendment as securing a “right to bear arms” for the ordinary, non-Militia uses. That is, the existence of the Amendment—i.e., the fact that there is a “right to bear” at all—is presupposed by any discussion on specific gun regulations, but has nothing to contribute to the specifics of it. A “right” doesn’t tell us how, or within what parameters (and there are always parameters), this right is to be exercised: The mere “right to marriage” doesn’t tell us which paperwork needs to be filed for a marriage license, and in what time-frame, by which government department and at what filing tax rate. You can debate the amount of paperwork, etc., but don’t pretend that saying “there’s a right to marry” settles the matter. (Nor does the constitutional right to “pursu[e] happiness” tell us the proper drinking age, or stringency of purity standards on beer, even though drinking alcohol makes some people “happ[y].”)
[N.B.: I write all this in the interests of clear thinking—always a good cause—rather than the interests of having, or not having, firearms. As hinted, there can certainly be good reasons to sanction gun ownership other than the Second Amendment; whether or why there actually are is a matter beyond the scope of this post. But nonetheless, I maintain close to zero reservations about “guns in the home.” I keep a gun for protection, and for me this is not just a necessary evil, in the sense that I like guns and can “aesthetically” appreciate their functions apart from this main purpose. And I repeat that whether a thing is “constitutional” is never so interesting as whether it is “right” or “sensible.” Ethics is not math. You can critique the axioms.]