From: jcf@world.std.com (Joseph C Fineman)
Subject: Reflections on the 2nd Amendment
Summary: Ruminative review of a wrongheaded essay by Paul Fussell
Keywords: 2nd Amendment; weapons; Paul Fussell
Organization: The World Public Access UNIX, Brookline, MA
Date: Mon, 9 Nov 1992 03:02:38 GMT

REFLECTIONS ON THE SECOND AMENDMENT

  The essay below is part of a review (written in June 1990) of _Thank
God for the Atom Bomb and Other Essays_ by Paul Fussell (Summit,
1988), which I happened on in a used-book store.  Interesting,
obnoxiously opinionated articles by a literary critic....

  [One] essay in the volume is a ferocious exegesis of the Second
Amendment to the U.S. Constitution,

        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.

In attacking the National Rifle Association, which has carved the main
clause of this sentence on its headquarters, Fussell reiterates the
familiar claim that the introductory absolute construction (called by
him a "dependent clause") constitutes a limitation on the right
granted, and goes so far as to say that it gives Congress the right --
nay, the duty -- to draft every gun owner into the militia and put him
under military discipline.

  Without prejudice as to the merits of the Amendment itself, I think
that Fussell's interpretation of it, even in the more modest form in
which it is usually argued, is preposterous on grammatical grounds
alone.  An absolute construction can be the equivalent of a
conditional clause, but only when it expresses a condition; when it
expresses a putative fact, it is a mere comment, expressing a
circumstance or reason for the statement in the main clause.  For
example, "A quorum being present, a meeting may be called to order"
does mean "If a quorum is present, then...", but "A quorum being
present, the meeting was called to order" means "A quorum was present,
and so..."; the main clause is just as much a flat statement as it was
without the introduction.  Now in the case of the Amendment, the
absolute construction, by the generality of its phrasing ("a free
State"), is clearly meant as a statement of fact.  The meaning is not
"If, or to the extent that, a well-regulated militia is necessary...",
but "Since, as we know, a well-regulated militia is necessary...".
The absolute construction is only a preamble, and does not alter the
legal force of the main clause.  This is made doubly certain by that
clause itself, which calls bearing arms a _right_ -- i.e. an action
whose legitimacy is not created by the state, but existed anteriorly &
is not to be "infringed".  More explicitly even than the rest of the
Bill of Rights, this Amendment is aimed at limiting rather than
empowering the government.

  In taking this line, however, I have to explain how it is that the
Framers, in writing just this Amendment, felt the need to be so mealy-
mouthed.  There is plenty of _ambiguity_ in the other Amendments, in
that expressions such as "freedom of speech" & "due process of law"
are vague enough to allow for compromise & progress; that is part of
the genius of the Constitution.  But nowhere else did the authors
presume to give an excuse for granting the people what they
acknowledged to be a right.  To do so is, indeed, to call the right
itself into question, and Fussell et al. can scarcely be blamed for
taking up the challenge.

  No competent _individual_ draftsman would muck up a plain statement
with such a distracting introduction.  But, I think, that _is_ just
the kind of grease that is sometimes needed to get a draft out of a
_committee_.  I know why _I_ might put my name to such a formulation,
and I am almost as sure of why (say) Jefferson might do so.  After
all, _his_ main reason for wanting an armed populace was already on
record: to make our own government, as well as foreign ones, think
twice before invading.  The _implicit_ preamble, the one that would be
understood if nothing were said, was "A not too well-regulated
militia[,] being necessary for freedom in a secure State,...".  _But
let us throw the Federalists a bouquet in the form of an anagram.  Let
us put it this way:...._ (Incidentally, if you should venture an
absolute construction yourself, do not imitate the Bill of Rights in
putting a comma before the participle.  It is not good modern
punctuation, and is almost sure to mislead the reader.)

  Accordingly, if I were a Supreme Court justice, I would be driven to
the horrible conclusion that the people have an absolute right to keep
& bear, at any rate, such arms as existed in 1790.  What the Framers
would have said about machine guns, nerve gas, & nuclear bombs is hard
to guess.  Ideally, the Amendment would have been revised or repealed
about 1860; but we were busy.  As it is, we are left with a quaint
18th-century political adaptation to 18th-century technology, and the
courts must do their best, as they might in interpreting a contract
whose parties failed to anticipate the actual turn of events.

  What puts me in a really tiny minority is that I cannot make up my
mind about the substantive issue raised by Jefferson, Heinlein, Van
Vogt, et al.:  Is liberty made more, or less secure by the fact that
firearms are generally available?  Are my libertarian friends in
Colorado with their rifles & pistols, and the crack dealers in Roxbury
with their Uzis, actually protecting my freedom by keeping the cops on
their toes?  It is possible, but I am inclined to doubt it.  It is
hard for me, & probably hard for the government, to imagine a
situation in which those guns might actually be used against the
government, even symbolically.  The national tradition of orneriness
that those people represent is indeed an important -- perhaps the most
important -- guarantor of my liberty, but their arsenals are not what
makes the tradition powerful.  What makes it powerful is their
willingness to risk punishment in defying even petty infringements.
It is the craziness of the crack _users_ in risking jail for one among
many of life's little consolations that puts them on the front line &
keeps the police from coming after my beer again.  The fact that their
_dealers_ can shoot each other does nothing for me.  On these grounds,
altho I fear many will disagree with me, I suspect I could live with
an outright repeal of the Second Amendment.

Organization: School of Computer Science, Carnegie Mellon, Pittsburgh, PA