The Second Amendment

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.

James Madison is surely rolling over in his grave with consternation and regret for his wording of the Second Amendment. It is perhaps the most misunderstood and most contentious clause in the United States Constitution.

It seems quite reasonable to assume, just as the Supreme Court recently ruled, that the Amendment refers to individual gun ownership. After all, with the exception of the 10th, every other Amendment in the Bill of Rights is intended to protect the rights of individuals from the restraints or the excesses of government. Furthermore, given that Madison explicitly stated the purpose of the established “right of the people to keep and bear arms,” that stated purpose must inform us as to the nature of those arms for which the Amendment was intended—those “necessary to the security of a free state.”

The Second Amendment, as written, appears to grant individuals a right to own the weapons necessary to defend the nation—not just handguns and hunting rifles, but assault rifles with high-capacity magazines, machine guns, hand-grenades, RPGs, bazookas, flamethrowers, tanks, missiles, Apache attack helicopters, as well as chemical, biological, and even nuclear “arms.” While Madison did refer to “a well regulated militia,” he did not mention any regulation of the “arms” individuals have a right to possess. Of course when Madison penned the language of the Amendment, the only arms available were single-shot rifles, very inaccurate single-shot pistols, and a few small canons. Evidently Madison didn’t foresee the development of complex armaments or didn’t think through the dangers of individual ownership of such weaponry. We can expect that Madison would be utterly dismayed at our nation’s inability to correct this oversight.

Of course the Supreme Court has repeatedly disputed the claim that we have a constitutional right to own any kind of armaments we might want. In the 1875 case of United States v. Cruikshank, the court ruled that the Second Amendment “has no other effect than to restrict the powers of the national government,” leaving state and local governments free to restrict firearm ownership. The court reiterated this view in an 1886 case, Pressler v. Illinois, ruling that the Amendment “is a limitation only upon the power of Congress and the National government, and not upon the states.” In United States v Miller in 1939, the Court cited the Militia Clause of the Amendment, concluding that “[i]n the absence of any evidence tending to show that possession or use of a [sawed-off] shotgun … has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

After the Miller case, most federal courts presumed that the Second Amendment was intended to preserve the authority of the states to maintain militias, not a right of individual citizens. However in a 2007 case, Parker v. District of Columbia, the Supreme Court led by Chief Justice John Roberts struck down local gun regulations for the first time, basing its ruling on an individual’s right to bear arms under the Second Amendment. Then in a 2010 case, the Court extended that precedent by declaring that basic Second Amendment rights supersede the authority of all state and local governments, just like other rights described in the Bill of Rights, as ensured by the Fourteenth Amendment. While striking down the D.C. statute, the opinion authored by Antonin Scalia declared that the right to keep and bear arms continues to be, nevertheless, subject to regulation.

Despite Justice Scalia’s famously describing himself as an “originalist” (meaning he interprets the Constitution according to how it would have been applied at the time of its writing), his opinion pretty clearly illustrates that he, like the other justices, is affected by modern politics. Ignoring the Militia Clause, Scalia’s opinion stated that the D.C. ban on handgun possession violated the Second Amendment because it prohibited an entire class of arms favored for the purpose of personal self-defense. “Self-defense” is, of course, the justification most commonly cited by political advocacy groups who object to most any firearm regulations because the idea induces an emotional response that can undermine rational perception.

Some people believe that the Second Amendment was intended to ensure that the people could rise up against the federal government if it becomes too oppressive. They presume that the Constitution is so irrational that it affirms war against itself as a crime—Article III: “Treason against the United States shall consist only in levying war against them”—and then grants its citizens permission to do so with the Second Amendment. Nonsense. As Abraham Lincoln aptly noted in his first inaugural address, “It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”

The Founders feared that a standing army could be used by the federal government to oppress the people, as was then common among the armies of monarchs. So the use of militias instead of a standing army was thought by some to be preferable. Militias would be used to defend the nation and its government, not used to oppose the government. But even at the time of the writing of the Bill of Rights, that notion had already proven to be misguided. Having personally witnessed the ineffectiveness of militias, George Washington wrote in a letter to the Continental Congress that, “To place any dependence upon militia, is, assuredly, resting upon a broken staff.” The United States has had a standing army ever since, fortunately with very few instances of it being used to oppress the people.

Aside from any questions regarding the original intent of the Second Amendment, the American gun culture has fostered considerable confusion about the practicality of gun ownership and the usefulness of laws intended to promote gun safety. At the urging of the National Rifle Association (NRA) in 1996, Arkansas congressman Jay Dickey introduced an amendment that stopped the funding of scientific studies of gun safety conducted by the National Center For Injury Prevention, a division of the Centers for Disease Control. In 2011, congressional Republicans further restricted funding by also applying the Dickey Amendment to funding for the National Institutes of Health. (Now retired from Congress, Mr. Dickey has expressed regret for his role in the matter.) Despite NRA attempts to hide the truth, enough studies have been conducted to debunk gun industry and NRA propaganda and to reveal some of the pernicious effects of an abundance of guns upon American society.

The biggest myth propagated by the gun culture is the idea that gun ownership is a reliable means of self-defense. If you are a drug dealer, an inner-city gangster, or if you live in an unusually crime infested neighborhood plagued by home invasions, then perhaps a gun could be of some benefit—but probably not, since it would more likely be stolen than used for defense. Studies have clearly shown that for each occurrence of a gun kept in the home being used to injure or kill in self-defense, such a gun is used in 11 attempted or successful suicides, 7 criminal assaults or homicides, and 4 accidental shootings. That’s about a 22 to 1 chance that a gun kept in the home will kill or injure someone other than an intruder.

Some have suggested that the mere presence of a gun deters crime and, therefore, wouldn’t be accounted for with studies of gun injuries and deaths. There is no evidence that the two-thirds of American households without guns experience higher rates of crime than those with guns. In fact, a 2003 study found that counties with higher levels of households with guns have higher rates of burglaries, not lower. This could merely be the result of higher-crime areas inducing people to buy guns for protection. It also illustrates how so many criminals acquire their weapons by stealing them from people who think owning a gun is a good idea.

Some suggest that the increasing number of mass shootings in the United States is not the result of a culture of easily accessible and abundant guns, but instead, of too few guns. They proclaim that if everyone were armed, any mass shooter could be promptly neutralized. While in some circumstances an armed citizenry could likely stop an attacker, in many others the chaos would undoubtedly be exacerbated. In a column entitled “The ‘Good Guy With a Gun’ Myth,” combat veteran James Hatch wrote that even highly trained and experienced military professionals often have difficulty determining “who’s who in the zoo” in a firefight. Just imagine a crowded theater or concert hall with 10, 20, or 30 armed citizens when the bullets start flying.

The uncompromising passion of gun advocates and the defensiveness of the gun industry have elicited wholly irrational reactions to any discussion at all of gun safety measures. After having spent his entire adult life writing for gun magazines and describing himself as a “Second Amendment fundamentalist,” 67-year-old Dick Metcalf was fired from Guns & Ammo Magazine for writing that “all constitutional rights are regulated, always have been, and need to be.” Metcalf had concluded that a requirement of 16 hours of training to obtain a concealed carry license was not an infringement. A number of other writers for guns and hunting magazines have similarly found themselves in trouble with gun industry advertisers for any mention of sensible regulation.

Most irrational is the hold the NRA and other gun lobbyists have on a great many members of Congress. In addition to basic common sense, two recent studies have provided evidence suggesting that background checks for gun purchases can curb violence—or at least background checks that are associated with licensing permits. A 1995 Connecticut law requiring permits (and with them, background checks) was associated with a 40 percent reduction in homicides and a 15 percent drop in suicides. Obviously an association is not proof of cause and effect, but we can certainly reason that making it more difficult for felons and the mentally impaired to obtain weapons and reducing the lethality of those weapons will reduce homicides and suicides. Nevertheless, Congress has repeatedly failed to restrain the availability of assault weapons with high-capacity magazines or to impose background checks on gun show or Internet purchases of firearms, despite the wishes of an overwhelming majority of the American people, including gun owners. (A recent Quinnipac University poll showed that 93 percent of Americans, including 92 percent of gun owners, prefer universal background checks.)

It seems that the gun industry and members of Congress are perfectly willing to imply that the United States is somehow inferior to all other nations—that we can do nothing to reduce our overwhelming lead among nations in gun violence. But then again, perhaps if we, as a society, come to recognize that we have been duped by the gun lobby and those members of Congress who do their bidding, then we can begin to hold them accountable and to shed such a shameful distinction.

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(1) Gun-Violence-Graphic 2

(2) Screen Shot 2016-01-10 at 5.46.04 PM

(3) Screen Shot 2016-01-10 at 5.46.47 PM

(4) Screen Shot 2016-01-10 at 5.45.12 PM

Since 1968, more Americans have been killed by private gun violence than were killed in all U.S. wars combined, from the Revolutionary War through the Civil War, two World Wars, Korea, Viet Nam, and the latest wars in Iraq and Afghanistan. (Pundifact/Politifact)

(5) Screen Shot 2016-01-10 at 5.45.41 PM

635854190773881145-Newtown

A few of the faces of those who were murdered by Adam Lanza, the son of gun-enthusiast Nancy Lanza, using her Bushmaster XM15-E2S assault rifle.

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