Does the Second Amendment Mean Anything Anymore?

The Second Amendment has become the most controversial law in America, because of what it does not say. Despite what many people think, the Second Amendment does not mention an individual the right to own weapons, nor require anybody to serve in a “militia.”

Here is the actual text adopted by the U.S Congress back on 15 December 1791:

“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.” – Second Amendment to U.S. Constitution.

Who are the Militia?

The text is vague and the terms; “right,” “arms,” “people,” and “militia” are not defined. The vagueness was probably deliberate because the amendment’s author George Mason wanted a flexible document that would change with the times. Mason; unlike many people today, understood conditions would change and he wanted a constitution that would change with them.

Here is what Mason said in a debate at the Virginia Ratifying Convention for the Constitution on 14 June 1788:

“I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.”[1]

Get the point Mason did not know what the militia was nor did he try to define it. He made the term vague in order to give government and lawmakers flexibility to change with the times. Mason was vague because the concept of a militia was controversial and unpopular back in his day.

In his time, the practice in many American communities was that all free men or free white men had to contribute to local defense. These men were often organized into militia units or companies for that purpose. Yet, as Mason undoubtedly knew, there were already many American communities that lacked a militia in 1791.

The Myth of the Citizen Soldier

Despite what many modern Americans think, those militia units did not constitute a military force. The practice in 1790s America, taken from Britain, was that there would be both a standing army of regular professional soldiers; who would fight the wars and a militia.

School students from Montgomery County, Md., in suburban Washington, rally in solidarity with those affected by the shooting at Parkland High School in Florida, at the Capitol in Washington, Wednesday, Feb. 21, 2018. (AP Photo/J. Scott Applewhite)

 

Contrary to modern popular belief, the militia rarely went to war and contributed little to national defense even in the 18th Century. Most militiamen understood that they would never fight outside their home regions. Waging war was the soldier’s job the militia’s role was simply to protect hearth and home.

The militia’s function was understood to be limited, and its military effectiveness was questionable and hotly debated in 1791. George Washington felt the militia was militarily useless and relied on a force of trained volunteers and European mercenaries to win the Revolutionary War.

Tellingly, within a year of the Second Amendment’s passage, Congress created a Regular Army to fight the Indians. The reason for the organization of the nation’s first regular military force; the Legion of the United States, was that militias had proven incapable of defending the frontier settlements from Native American attacks.  Since then, America’s wars have been fought by the Regular Army, augmented at various times by volunteers or draftees.

The American Citizen Soldier is a myth. The national tradition is a highly-trained professional army, not a ragtag militia. By the mid-19th century, most militia companies had degenerated into drinking societies or political clubs. In 1904, the militia was effectively abolished and replaced with the National Guard, a semi-professional force explicitly designated as part of the regular military.

Is there a Right to Bear Arms?

Okay, since the Citizen Soldier is basically a myth, we must ask ourselves what is the right to bear arms and what does it mean?

Strangely enough, Americans have only been having that argument for about 30 years. For most of our history, the Second Amendment was largely ignored. Restrictions on guns; and outright bans on weapons ownership were common in American history and produced little controversy until the 1980s and 1990s.

That meant there was actually no serious effort to define the “right to bear arms” until modern times. The U.S. Supreme Court did not make a clear ruling on the issue until 26 June 2008, in a case called District of Columbia v. Heller; 217 years after the ratification of the Second Amendment.

Heller was the first time the Supremes ruled that a U.S. Citizen had a right to own a gun that was unconnected to a “militia.” It can be argued that until June 26, 2008, there was no individual right to own a gun in the United States.

Critics argue that the Second Amendment does not grant that right. Instead, they claim the Heller decision’s author; the late Justice Antonin Scalia, created that right with his opinion. Since 2008 the Courts have resisted extending the Heller decision beyond the right to keep weapons in a person’s home.

Does the Second Amendment Grant a Right to Gun Control?

There is a school of thought that contends the Second Amendment really grants the government the right to organize military or paramilitary forces. This was the argument made by the four of the nine Supreme Court justices that dissented in the Heller decision.

A related argument is that the Second Amendment simply grants the federal government the right to regulate militias and other paramilitary organizations. This interpretation has given rise to the controversial theory that the Second Amendment gives the government the power of gun control.

“Gun control is as much a part of the Second Amendment as the right to keep and bear arms,” Adam Winkler a professor of Law at the UCLA School of Law wrote in an essay for the Constitution Center.

The problem with Winkler’s claim; like the Heller decision, is that it is a broad interpretation. Neither argument is supported by the text of the amendment, although it can be argued the wording implies both arguments.

There you see the problem, not even judges and legal scholars can agree on what the Second Amendment states. Therefore it is easy to see to why Americans are still arguing over the Second Amendment.

Perhaps it is time that Americans considered replacing the Second Amendment with something more clear. The vagueness of the existing text may no longer be enough to protect the right to bear arms or clarify government’s power.

Gun rights activists, in particular, should be concerned, because the Second Amendment can be interpreted to grant government the right to gun control or gun confiscation. Revising or replacing the Second Amendment might be the only way to preserve the right to own a gun.

 

 

 

[1] http://press-pubs.uchicago.edu/founders/print_documents/a4_4s9.html