The Second Amendment is irrelevant to the issue of gun ownership

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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.

Possible responses:

(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.]

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9 responses to “The Second Amendment is irrelevant to the issue of gun ownership

  1. There is no “right to marriage” in the Constitution. Marriage is a social contract and society can decide what forms of contract they will sanction. You can live with whom you wish (freedom of assembly) but can not engage in legal contracts that are not sanctioned (no indentured servitude contracts, for instance).

    You have created a false analogy by listing a “right” that is not recognized under the Constitution.

    The Supreme Court did recognize the true meaning of the 2nd Amendment in the majority opinion of the Dred Scott verdict. They reasoned that blacks had no rights as citizens because they could not envision the framers as meaning that blacks could “carry arms anywhere” the way whites were able to. They didn’t say that “blacks can’t fill out the forms to carry arms anywhere”.

    This case was never overturned. The 13th and 14th amendments spelled out that blacks DID enjoy full citizenship, thereby leaving the Dredd Scott decision in place.

    It is therefore part of settled case law that a citizen can carry arms anywhere. Not fill out the forms. Carry. Arms. Anywhere.

    THAT is what the settled case law from the U.S. Supreme Court says. Read it.

  2. It’s difficult for me to respond–actually, to know whether to respond–because this is so off the mark. There needn’t be a constitutional “right to marry” in order to use it as an example of something–any more than I have to actually have a million dollars to imagine what I’d do if I did. (i.e., The “analogy” is not “false,” because the actual, real-live constitutionality of the two things is not the respect in which they are being likened. It is their being “rights”–the one, if you like, being real-live-constitutional, and the other being so not actually but conceivably, imaginably.) The point is that if there *were* a right to marry, that alone would tell us virtually nothing about what it would look like legally to enter into such a situation. And a constitutional “right to bear arms” is no different. Nobody thinks a “right to marry”–if there isn’t one, imagine one–licenses one to marry a piece of construction paper, or to claim to be married with a snap of the fingers. Neither should one assume that the “right to bear arms” requires no further qualification. The idea of a totally unqualified “right” is nonsense. And to qualify something in practical terms is just to regulate it.

    The more important argument of the post is beside all that. You didn’t address the idea that the “right to bear arms” is a conditional one–conditional on there being a need for a Militia, and this in turn being conditional on there being a Militia in place to which ordinary gun ownership can actually be said to contribute. Surely these conditions are not met in the present.

  3. The other point, more implicit, is that, Fuck the Constitution, guns are fine and probably good so let’s support the shit out of them.

  4. Pingback: Ron Paul redux: An incoherence of libertarianism « amerikanbeat

  5. You didn’t address the idea that the “right to bear arms” is a conditional one–conditional on there being a need for a Militia, and this in turn being conditional on there being a Militia in place to which ordinary gun ownership can actually be said to contribute. Surely these conditions are not met in the present.

    Oh really?

  6. Re. Kevin Baker- I wrote:

    “[T]he “right to bear arms” is a conditional one–conditional on there being a need for a Militia, and this in turn being conditional on there being a Militia in place to which ordinary gun ownership can actually be said to contribute. Surely these conditions are not met in the present.”

    To which Baker responded with examples of alleged militia actions. First, if this is supposed to address the first part of my claim—that there isn’t a need for a Militia—it isn’t much of an argument. I may as well argue that, since there are examples of elephants, elephants are “need[ed].” Simply citing that something exists is not to say that it is needed or mandated.

    In any case, these probably aren’t militias in the constitutional sense—as they are not designated by the definite article (the constitution mandates a Militia) nor have the level of organizational integration among one another that would make use of the definite article anything more than a hope or lie. Nor are they at all “well regulated.” Nor do their actions address “state security”—along the lines of the British invasion—as the constitutional militia is (I think) designed.

    The matter is not elucidated by the U.S. code, which Baker cites for a definition of “militia”:

    “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.”

    That “ma[king] a declaration of intention to become…citizen…of the United States” gains you entrance to the militia should be enough to show the anachronicity of the whole project. (And the Code could misinterpret the Second Amendment just as well as gun enthusiast citizens, or it could refer to a separate concept.) Anyhow, code 10 repeats the quasi-religious idea that the militia is just everyone with a gun who wants to do good (Constitutional) things with it. Again, this is really, really un-well-regulated. Ignoring this, I’m all for defining things for the sake of the argument: If you tell me that you mean dogs—barking canines—every time you use the word “cats,” I’ll run with those terms provisionally. (It’s weird, but we can still communicate.) But you can’t just assume a similar “switch” is at work in someone else’s words, much less impose one of your own. The point is that, whatever the Code says, that just isn’t what a “militia” is. An isolated person preventing a convenience store robbery just *is not* a “militia” action. You can define it as such—define it any way you like, and argue for it on its own merit—but don’t assume the framers had such a thing in mind. It isn’t how they used the word. It just isn’t.

    Again, this is not about disliking guns but my dislike of “constitutional thinking” and the type of thinking of which its a part. It reflects my commitment to “free thinking,” as much as I hate the types who celebrate this term. Its a slavish kind of thing to cite an authoritative document for support of an idea rather than the fact that the idea just makes good sense, whoever agrees with it or doesn’t. Making your support for guns dependent on the Constitution also suggests that if the Constitution had said something different, or was tomorrow changed to, gun ownership would become a bad idea. My view is that guns are probably a good thing on balance and would remain so whatever document says what. And if guns were a bad idea, that would also be the case apart from the Constitution. Facts are what they are aside from their formal ratification or what fathers of which government like them. (To boot, in many ways the Constitution is a crappy document. It does what it was designed to do—maintain a really fucked up distribution of wealth.)

  7. Again, this is not about disliking guns but my dislike of “constitutional thinking” and the type of thinking of which its a part. It reflects my commitment to “free thinking,” as much as I hate the types who celebrate this term. Its a slavish kind of thing to cite an authoritative document for support of an idea rather than the fact that the idea just makes good sense, whoever agrees with it or doesn’t. Making your support for guns dependent on the Constitution also suggests that if the Constitution had said something different, or was tomorrow changed to, gun ownership would become a bad idea.

    I think you overreach. I was not “making (my) support for guns dependent on the Constitution”. I was simply illustrating the flaw in your “militia” argument.

    In the first place, you make the basic error that “A well-regulated militia” is a restrictive clause limiting “the right of the People.” (And “well-regulated” means “properly functioning.” I think even you’d admit that the “Algiers Point Militia” functioned properly.)

    You’re far from alone on that, but what the hey. So far, three Supreme Court cases (none of which have been overturned) have said that a right to “keep and carry arms wherever (citizens)” go, “bearing arms for a lawful purpose” (with no mention of membership or participation in a militia) is a right that pre-exists the Constitution and is not dependent on that document. The Second Amendment merely prohibits Congress from infringing on that right.

    On your last aside, the Constitution has some flaws, granted – but the purpose of that document was not to “maintain a really fucked up distribution of wealth,” (You really ARE a Marxist, aren’t you?) it was to protect the rights of citizens. The philosophy of the founders was Lockean – life, liberty, property (famously – and well-altered to “life, liberty, and the pursuit of happiness).

    It’s taken the better part of 200 years to circumvent the protections built into that document – pretty much in the name of redistribution of wealth, though very few will come right out and admit it.

    States which attempt to make everyone “equal” and make the world “fair” through the redistribution of wealth make everyone equally miserable – except, of course, the people who get to do the redistributing. They’re always “more equal” than everyone else. And they decide what’s “fair.”

    Which is why, in those societies, the individual possession of firearms is always considered an evil. Because if they’re armed, the victims can be dangerous.

    How anyone can still support Marxism is beyond me. For Marxism to work, 95% or more of the population must be exceptionally altruistic – and the Bell curve simply doesn’t support that.

  8. Pingback: Socialism and altruism « amerikanbeat

  9. (a) Maybe a “well-regulated Militia” means a “properly functioning” one. That’s interesting and my argument can certainly withstand that concession.

    (b) I realize(d) you don’t agree the “[necessity of] a well-regulated Militia” restrictively qualifies “the right to bear arms.” Do you have a reason for this view?

    (c) The Supreme Court’s view on something other than the constitutional right to bear arms (say, a right to bear arms that precedes and stands apart from the document) doesn’t speak one way or the next to my view on the constitutional right to bear arms. Your point is interesting, again, but my focus is narrower.

    (d) Yes, a surface read of the Constitution shows the need to “protect the rights of citizens.” But a surface read isn’t sufficient for understanding a[ny] document. Madison’s daily notes on the constitutional draft convention, published after his death, indicate the driving objective of the framers to protect landed and mercantile wealth from the looming danger of popular sovreignty. They actually had conversations about the best way to prevent this. (See relevant chapters of Ollman and Birnbaum,”The United States Constitution: Two Hundred Years of Anti-Federalist, Abolitionist, Feminist, Muckraking, Progressive, and Especially Socialist Criticism.“) Actually, pretty much nobody thought popular sovreignty was a good idea until the 19th century.

    (e) Re. your point about “States which attempt to make everyone “equal” and make the world “fair” through the redistribution of wealth…Which is why, in those societies, the individual possession of firearms is always considered an evil”:

    Notwithstanding Marxist arguments that no such thing as “socialism in one country” (or even a bloc of them, together) can exist, you must have in mind countries which purport to be socialist, whatever they actually are. But then, there are counterexamples: Cuba has actually armed its neighborhoods with public caches of guns for at least 30 years in anticipation of a U.S. invasion. (See here.) Of course, these haven’t been turned against the state.

    (f) The idea that “Marxism” requires “exceptional altruis[m]” is dealt with in a longer freestanding post of mine here.

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