“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.”
By: Paul Abrahams
Tags: Firearms, Mass Shootings, Guns

“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.” Paul Abrahams Follow Dec 17, 2020 · 5 min read

These are the words of the Second Amendment to the Constitution of the United States of America. The Second Amendment has been the subject of intense conflict between gun rights advocates and gun control advocates; the Supreme Court’s interpretation of it has changed direction several times.

The significance and meaning of the militia clause has been the focus of much of that conflict. Among all the amendments and clauses of the Constitution, the Second Amendment is unique in having an introductory clause stating its rationale. So why was the militia clause included? It must be because that clause is an essential part of the constitutional meaning of the right to keep and bear arms. Were that not so, the clause would not have been put there. And without that clause, the right to keep and bear arms would be unqualified and thus could not be restricted.

A well-regulated militia isn’t just any old militia. If regulation hadn’t mattered to the authors of the Amendment, the phrase “well-regulated” wouldn’t have been there. And who might do the regulating — a state government, the federal government, or both? The amendment doesn’t say, since it doesn’t clarify whether the phrase “free State” refers to the individual states of the union or to the union as a whole, i.e., the United States of America, which is a “state” in a larger and more abstract sense.

Even the phrase “well-regulated militia” could be interpreted in two different ways. It could mean that every “free State” needs to have a militia, since having a militia is essential to its security. Or it could mean that if that State has a militia, that militia needs to be well-regulated.

There seems to be general agreement that the term “arms” refers to firearms, i.e., guns and rifles. Neither gun control advocates nor gun rights advocates dispute this.

In enumerating the powers of the President, the Constitution says that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States”. That statement implies that militias are created by States.

The Second Amendment does not preclude legislation on the subject of guns held by persons other than members of a militia. Nothing in the Amendment would invalidate a law prohibiting the private ownership of guns altogether, or, on the other hand, invalidate a law requiring every household to be armed. The fact that the Second Amendment was meaningful in 1787 does not imply it is meaningful today. There are other anachronisms in the Constitution, notably the Third Amendment, which states that no soldier shall, in time of peace, be quartered in any house without the consent of the owner. That amendment has not had any relevance since 1787.

For gun rights groups, the Second Amendment as they interpret it is sacred. They love their guns in a way that goes far beyond the utilitarian view that we acquire guns only for self-protection, and not for their own sake.

They see themselves as “patriots”, a very different role than merely defending themselves as individuals. They see their arsenals as a line of defense against a tyranical government — and they claim for themselves the right to decide that a government is tyranical. I find that very scary.

Until recently I did not fully appreciate the distinction between “open carry”, where weapons are visibly displayed, and “concealed carry”, where they are not. What brought that distinction home to me was a photo of a man on the grounds of the Wisconsin state capitol carrying an assault rifle . Groups of armed men have been showing up at demonstrations and at election sites. Open carry can have one purpose only: intimidation.

We can’t prevent people from acquiring guns for the same reason we can’t prevent people from smoking marijuana or having abortions: laws to that effect are unenforceable. We can and should reduce the supply of guns, but we can’t hope to eliminate them. Too many Americans own guns and gun collections for that to be possible.

If, as I maintain, the Second Amendment has no present relevance to laws about gun ownership, then what should the laws be? There is a strong case to be made for the argument that people ought to be able to defend themselves and their families, no matter what the Second Amendment says or doesn’t say. Moreover, that argument does not conflict with anything in the Constitution. Instead, it says that a right to armed self-defence is wise public policy. It also accepts the realities of gun ownership.

But that argument does not imply that gun ownership for purposes other than self-defence cannot be restricted or even prohibited altogether. Limiting gun ownership to what is necessary for self-defence is a reasonable and practical policy.

That has another implication: guns with features unnecessary for self-defence, such as large-capacity magazines and automatic firing, should be available only to the police and the military. Gun enhancements like silencers are useful only for criminals and should be outlawed altogether.

Just as cars must be registered and people who drive cars must have driver’s licenses, guns should have to be registered and have ineradicable serial numbers. Gun owners should be required to pass a test demonstrating their competence in handling guns and their knowledge of gun safety. They should also have to register the serial numbers of their guns. Ownership of guns by unlicensed persons should be prohibited.

Guns are controversial, and people have strong feelings about them. In some parts of America, people buy guns almost as casually as they buy shoes. But owning a gun does not make you safer. Statistically, in fact, owning a gun makes it more likely that you will be killed by a gun. Accidents and suicides are the leading causes of gun deaths. The United States has the sad distinction of having more than twice as many gun deaths per capita as any other developed country.

Fortunately, mass shootings are rare. They are deeply tragic, but no law can stop them altogether. We can only hope to reduce their number. Licensing requirements for gun ownership would go far towards achieving that objective, and also towards reducing the number of suicides and accidental deaths.

Too many gun owners will defend their guns no matter what the law says. “We’ll never let them take away our guns”, they often say. The choice of words is significant; “our guns” versus “my gun” reveals the political significance of the issue. Sadly. guns are too ingrained in American culture for it to be possible to eliminate them.