There is a problem with this particular Amendment. The first issue seems to be that there were two versions. The first was passed by Congress, and the other was the version ratified by the States and authenticated by then Secretary of State, Thomas Jefferson.
I am assuming, and correct me if I am wrong, but the only version that matters to anyone other than historians, is the version ratified and authenticated. It may be that the first version is useful when attempting to interpret the will of the Founders, but actually they appear to amount to the same thing in the end.
Here is the authenticated text:
"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"
Let's shoot our way through the orange obstruction ...
For as long as I have considered these things, which is not very long, I have held a belief.
I have always understood the second amendment to be a conditional statement. That is, the second doesn't concern individual Rights to keep and bear arms "outwith" a well-regulated militia.
Indeed, I am not the only one to hold that belief, because until District of Columbia v. Heller there hadn't been the opportunity for SCOTUS to consider the matter. The second amendment had been argued about for generations, but until that instance had never been tested as no cases had been brought on that point.
Sure there have been plenty of cases about gun rights, and many thousands of laws passed, yet never had the SCOTUS been asked whether or not the second amendment conferred an individual Right to Keep and Bear Arms.
Well now we have one, and the Court ruled that it does indeed confer that Right.
Along with many others I felt that the SCOTUS had over-reached, and the "many others" included four Justices of the Supreme Court. So I am in good company. Then this Diary appeared a couple of days ago. It's an excellent argument for the control and regulation of the very firearms preferred by those who want to either feel macho, or kill a lot of people very quickly.
So I waded into the comments of that Diary, and now I am thinking that I am wrong, at least wrong on the wording of the Amendment. Kossack Catesby made the following comment:
Nor does the 2A say you need to be (0+ / 0-)
in the militia to bear arms. It just says a populace without restriction on guns is needed in order to create an effective one.
That was a bit startling, because it is an argument I hadn't previously considered. So I went and read the Amendment again ... carefully. Now I am decently literate, and I do try to be intellectually honest, and this time I have to say that I rather suspect I may have been wrong on this point. There, said it and it didn't hurt a bit :)
What is clear is that the amendment seeks to address the matter of defense. "A well regulated Militia being necessary to the security of a free State", is pretty clear so far .... they are talking defense. It continues after the comma "the Right of the People to keep and bear arms shall not be infringed". Forgive me if I am taking up time with stuff you all learned in High School.
It seems to me that the argument that the people only have the individual Right to keep and bear arms within a Militia (as I have believed), is incorrect. That the Second Amendment does indeed confer the individual Right in order that the people can be co-opted to form the well-regulated Militia.
So now I have unknotted my knickers, unwadded my panties and got my thinking straight on that .... and offered my humble apologies to those who I may have accused of not being able to read, what does all of this mean in the context of the current debate?
Well not much, really.
It is clear from the wording of the amendment that the Framers had only one thing in mind when they wrote it. They were concerned with the defense of a free State. To that end they granted the right to keep and bear arms to individuals, but only in the context of the ability to form well-regulated Militia. Absent the need to form such Militia, the entire imperative for the second amendment disappears.
Well the United States now has a standing Army, a decent Navy, a highly effective Marine Corps, even a better than competent Air Force, and all of that is supplemented by the National Guard. Highly trained, well-regulated and impressively armed. When the People join the military, they do not need to provide their own weapons because the military has plenty of really good guns, and they will give you one. Indeed, they may even prefer that you leave your own guns at home.
Predicated as it is on the ability to form a well-regulated Militia, it is quite reasonable to argue that the individual right to keep and bear arms is completely redundant. I'll go further. It is also reasonable that any current arguments about gun control that invoke the second amendment are specious, irrelevant, nonsensical.
If it is argued by the SCOTUS that the second amendment allows for the use of such weapons for "ordinary lawful purposes", then that is simply wrong. The SCOTUS gets to interpret the Constitution, they do not get to re-write it. I come to the view that SCOTUS was wrong in the case of District of Columbia v. Heller, if they ruled that case based upon the wording of the second amendment. There may be rights to self-defense covered by other amendments and other laws, but the second doesn't cut it.
The debate surrounding gun control is not top of the agenda for most Americans. Indeed it falls well below matters such as jobs, the economy, health and education. That said it is an important debate, and one that liberals and progressives should be able to have. For all the years I have been reading and posting to this site, it is a debate that we simply have not been able to have. Those supportive of the right to keep and bear arms have been broadly confined to the RKBA Group Diaries, with occasional forays into the Diaries of others when they appeared. This despite the fact that most of the RKBA Group are good contributors on other matters. Indeed, I feel confident that they would argue they are good contributors in the gun control debate too.
Let us bear in mind that the removal of that redundant amendment would not necessarily remove the Right to Keep and Bear Arms. It would simply remove that right under the specific circumstances the second was predicated on. Then maybe we cut away some of the dead trees, and get a better view of the forest.
Remember that the 9th and 10th Amendments are actually much more appropriate in this matter. Not just those amendments either. Gun owners are pursuing a legal activity because the law says so. Thousands of laws, actually, both Federal and State.
By repealing the second amendment, because actually the imperative has simply vanished, gun ownership could be discussed on a firmer footing, and Congress might be freed to you know, actually Legislate appropriately.
For anyone minded to believe that we still need the Right, that we may form militia to defend against an out-of-control Federal or State Legislature, then I simply suggest that those fantasists read the following superb article by Dante Atkins.
Do I think this will happen? Nope, I'm not that naive, but I have few doubts that it SHOULD happen.
Yet again this subject is brought to the fore by another senseless tragedy, but this time there has been a difference in tone. Kossacks all too keen to jump in and stand on their Constitutional Rights have been a little more subdued, and other members of the site have tackled the subject in a way that they generally do not.