I am not under the delusion that this diary will draw universal acclaim; there may be a few Kossacks that disagree with me -- well, maybe more than a few. As the title suggests, I am calling into question the wisdom of the usual interpretation of the Second Amendment by its proponents. The Second Amendment reads:
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.
I support the Constitution as written and amended. It's not my intention to deprive anybody of the rights they have under that noble document. However, under the fold I will argue for what I believe is a rational interpretation of this amendment.
My first point is that the amendment speaks of a "well regulated militia". Presumably, this phrase was used for a purpose. In general, the Bill of Rights is not cluttered with excess verbiage, so what was that purpose? We really don't have anything today that corresponds to the 1789 concept of a militia. Our National Guard comes closest, but a member of the National Guard is not expected to keep arms at the ready, as was the case in 1789. So, my first argument is that the Second Amendment is more or less obsolete, as is the Third Amendment. (No fair looking it up; can you recall the subject of the Third Amendment?)
But even if the Second Amendment is obsolete, it still part of our Constitution and we cannot simply dismiss it. It is up to us -- meaning our generation and our courts -- to decide what it means in the context of our nation today.
In 1789 the word "arms" referred to the musket, a primitive weapon by today's standards. The people who framed the Constitution probably had this weapon in mind. There were pistols as well, so let's include them under the term "arms". We should also include bayonets, as they were pretty much a standard accessory to the musket. Short knives would round out the picture of personal arms.
If we are to use the framers' intention as a legal argument, then it is these sorts of arms they had in mind. Firearms of the day took about 15 seconds to load and fire. They were inaccurate and had a limited range. True enough, the founding fathers could reasonably be expected to foresee that arms in the future would be improved, but we could hardly expect them to envision weapons available to the average citizen whose firing rate is measured in many hundreds of rounds per minute, and whose accuracy is deadly at hundreds of yards.
One of my more frivolous arguments is that if we are guaranteed the right to bear arms, then we are guaranteed the right to carry (i.e. "bear") a bazooka. Well, that would certainly deter anybody from cutting me off on the freeway. The Second Amendment would also sanction my arming myself with a few hand grenades -- you know, just in case. Flame throwers anybody? After all, these items are, by any objective definition, "arms".
Getting back to the serious point, the word "arms" means something much different in 2012 than it did in 1789, and we need an interpretation that makes sense today. This is why courts are necessary; somebody has to make the judgement what a particular law (or amendment in this case) ought to mean in context.
Let's take a quick look at the First Amendment. We have an absolute right to free speech. That is, no law may be passed that prevents you from expressing yourself. True, if you say something that causes actual harm, you can be prosecuted, but you cannot be restrained in advance from expressing your opinion, as long as your mode of expression doesn't cause harm to others. You cannot shout down the President during a speech he is giving, for example, but you are unconditionally free to criticize later what he has said.
Can we say that the Second Amendment gives citizens such an untrammeled right to carry loaded firearms? No, and the reason is that firearms -- unlike speech -- can cause immediate and irreparable harm. We don't allow citizens to carry guns onto airplanes, for example. If you take a White House tour, it would be prudent to leave your loaded nine millimeter handgun at home. There are many places where the right to bear arms is severely curtailed, and rightly so.
So, whatever we might think the Second Amendment means, or ought to mean, it seems essential to agree as a practical necessity that the carrying of a loaded firearm must be subject to reasonable regulation. We may have a right to travel within the nation's borders, but that right is subject to all sorts of regulation. We must obey speed limits, stop for traffic lights, etc. This is to say that we are forbidden to compromise public safety while exercising our right to travel freely.
Let's get down to what is reasonable. In enumerating the aims of the Constitution, the Preamble talks of "domestic Tranquility". In light of this, is it reasonable for a state to forbid the carrying of loaded firearms in public by private citizens? I would argue that it is not only reasonable, but it is necessary. In my opinion, the carrying of a loaded weapon poses a real and significant danger to anybody who happens to piss off the bearer of that weapon. A loaded gun in a public place puts everybody within range of that weapon in danger.
There are drivers who, by reason of training, experience, and good reflexes, could drive relatively safely at 50 MPH in residential areas. We don't let them do that because there are many more drivers who would be a danger to public safety at that speed. So, I do not mean to suggest that every citizen who carries loaded firearms in public is an immediate danger to his or her fellow citizens. I am perfectly willing to concede that most of these people are well-trained and responsible. But there are also people who have hair-trigger tempers. There are people who are racist or homophobic. There are people who drink alcohol or who use mind-altering substances. There are people who are paranoid about the intentions of others. There are people who are simply mentally incompetent. To allow these people to carry loaded firearms in public is to put innocent citizens in danger.
The statistics on gun ownership and use are confusing, contradictory, and downright unreliable, so please don't try to cite statistics that support your position. I have read many articles on the subject, and most are slanted one way or the other. This paragraph from a Wiki article gives one an idea of the difficulty in analyzing the problem statistically:
In the United States, research into firearms and violent crime is fraught with difficulties, associated with limited data on gun ownership and use, firearms markets, and aggregation of crime data. Research studies into gun violence have primarily taken one of two approaches: case-control studies and social ecology. Gun ownership is usually determined through surveys, proxy variables, and sometimes with production and import figures. In statistical analysis of homicides and other types of crime which are rare events, these data tend to have poisson distributions, which also presents methodological challenges to researchers. With data aggregation, it is difficult to make inferences about individual behavior. This problem, known as ecological fallacy, is not always handled properly by researchers, leading some to jump to conclusions that their data do not necessarily support.
One argument against this view is that one is entitled to protect one's self. But in my opinion this argument simply fails. A loaded gun doesn't actually protect, at least not in the same sense as a flak jacket or a bulletproof windshield. A gun is an offensive weapon; it is designed primarily to kill human beings. You might argue that if you are threatened, simply showing a handgun will serve a deterrent purpose. But pulling a loaded gun on somebody is a felony; it is assault with a deadly weapon even if you have no intention of pulling the trigger.
I therefore believe that it ought to be unlawful to carry a loaded gun in public. Exceptions can be made for a person's home ("castle"), or for a target range, or for legitimate hunting purposes, or for any other legtimate purpose. I am not calling for the confiscation of all guns, nor of any guns for that matter. I am calling for this reasonable regulation: No loaded guns where people can gather. This makes sense for the same reason that it makes sense to prohibit loaded guns in airports; it is just a matter of public safety.