What Part of the Second Amendment is so Hard to Understand?

Illinois Review ^ | March 14, 2013 A.D. | John F. Di Leo

The Second Amendment is completely misunderstood by half the country. People who would never dream of challenging the meaning of freedom of speech, or the right to be from search and seizure, assume all sorts of imaginary limitations to the right to keep and bear arms, limitations that, upon thoughtful consideration, would be detrimental to the nation’s health and safety.
Others have written whole books on the subject, but for those who don’t need a whole book, just a quick clarification, here it is, part by part.
"A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."
The 2nd Amendment is part of the Bill of Rights, so let’s start by remembering what the Bill of Rights was. In the days of our Founding, we were part of the British Empire, a limited monarchy in which the monarch had gone off the rails and forgotten (actually, “consciously circumvented” might be nearer the mark) most of his limits. Our Founders therefore set up constitutions for each of their respective colonies, and added bills of rights to each of them, sometimes passing their bills of rights first, because they viewed these as being more important than, say, how many senators they had or how long a judge’s term should be.
THE SUMMER OF 1787
In designing a national government for the United States, the Constitutional Convention in 1787 debated whether to include such a list in this final document as well. Many of the delegates had arrived in Philadelphia – George Mason in particular, as the foremost champion of such things – with the natural expectation that such inclusion was a foregone conclusion.
But the Framers made the conscious decision not to do so for a very good reason. A Bill of Rights is a wall built around things that you don’t want the government to get at, when the government is otherwise able to get at anything else. An otherwise unrestricted government needs to be told, point blank, “these things are off limits to you!”
Our Framers, however, were writing a Constitution. The Constitution was a wall, not built around the things that are off limits for their protection, but around the government so that it could not expand beyond its enumerated powers! The Constitution was itself, by its very nature, even better than a Bill of Rights, because if the government can’t expand beyond these seven articles of enumerated powers, then you don’t NEED to list what’s off limits. By definition, everything else is off limits!
So the Framers decided, almost unanimously, that a Bill of Rights would be counterproductive in this document. It would send a mixed message: on the one hand the first seven articles say “the national government can’t exceed these bounds,” but then on the other hand a Bill of Rights would say “but on the off chance that it does exceed these bounds, here are several excesses that are really really off limits, we really mean it here.” The Framers therefore decided that a Bill of Rights in this context would be schizophrenic, and they voted it down (losing the endorsement of the great George Mason as a result).
THE RATIFICATION DEBATES OF 1787-88
When the Framers returned to their respective states, however, to pursue ratification, they found that this explanation was too complicated to make in the public square, and found that most states would simply refuse to ratify without a Bill of Rights. So the leading federalists (the supporters of the Constitution) agreed, state by state, to ratify only on the condition that a Bill of Rights would be added, thinking that it would be no serious loss to the logical strength of the Constitution. That choice is debatable to this day, but as the Constitution would not have been ratified without the agreement, it’s probably moot.
The Constitution was ratified, the new government was elected and installed, and during President Washington’s first term, the first ten amendments were added as the Bill of Rights.
Some argue that there is a special order of importance to the Bill of Rights, but this too is a stretch. The first is no more important than the tenth; the fifth no less important than the second. Rather, the Founders organized them in what they considered to be a logical range of the kinds of threats of which they feared a future government capable, in a manner that seemed sensible.
The first and last of the ten are logical bookends for the group, beginning with the rights to free speech, assembly, and religion, and closing with the fact that these ten are not our only rights, but that in fact any choices not specifically given to the government in the first seven articles is reserved to the states and the people.
So don’t think that the 2nd Amendment is the second most important freedom, less important than free speech and more important than the ban on government confiscation of private property found three amendments later. No, all ten are equal; all ten make up a clear reminder that the government is severely limited in its activities and powers; limited in fact to those specifically mentioned in the first seven articles.
A WELL-REGULATED MILITIA
The first clause of the 2nd Amendment is probably the most commonly misunderstood. The word “militia” conjures up the idea of a military; it shares the same root, after all… but it is in fact the opposite of a military.
In the summer of 1775, George Washington, a member of the Continental Congress representing Virginia, was commissioned as a general and sent to command the patriot forces at Boston, then in its seventh year of martial law under the British governor. Washington was amazed to discover that most of our troops – farmers, ranchers, handymen – had minimal experience with weapons. They needed basic training, at a time when their nation had neither time nor funds to provide it.
A dozen years later, the Framers recollected this experience, and the many difficulties involved in teaching patriots to handle arms in case of war; they decided to ensure that such problems never arose again.
So they established an expectation that the public must always be ready to take up arms as needed. Whether that means a posse of civilians, deputized to hunt down a killer in the Wild West, or a locally raised platoon to defend a town from invaders, or one or two members of a family, defending the family farm from a band of thugs, or the townsfolk banding together to overthrow a corrupt or tyrannical territorial governor… the people must be ready before the event. They cannot be expected to learn on the fly.
The militia, as cited in the 2nd Amendment, is therefore "the civilian citizenry." The Founders meant for it to cover all law-abiding citizens, all free Americans. The term had a couple of different legal meanings over the years… it was specifically defined by federal statute in the 1790s, for example, as all free men between age 18 and 45. That definition would change and expand as women gained property rights and voting rights, as the evil of slavery was finally ended, etc.
But the underlying, basic fact remains: in this context, the militia refers to the civilian citizenry. When they say “a well-regulated militia,” then, they’re making a distinction between a bunch of citizens who can be called on to collect arms from the local armory at a moment’s notice – willing but perhaps not able – and a bunch of citizens who are already accustomed to the handling of arms.
Like our friends Switzerland and Israel today, our Founders expected our civilians to be armed, to have their own stores of weapons and ammunition at home, and to be experienced enough with their use to be helpful if needed in any struggle.
Just drafting a kid at 18 and putting a gun in his hands for the first time was to be avoided at all costs; the early years of the War of Independence were a nightmare because of this; they never wanted that experience to be repeated. The purpose of the 2nd Amendment was to ensure that, if this 17 or 18 year old was called upon to serve, he had been handling weapons for years, and would therefore need minimal further training.
The government will always have weapons. They set up a nation with a minimal standing army, but it would soon become clear that a larger standing army – and navy – would be needed. And the citizenry must always be at least as well equipped and as well practiced as that military.
THE SECURITY OF A FREE STATE
Now this context makes more sense. The word “security” has so many different definitions today – financial security, emotional security, security guards and Social Security. In this case, the meaning is clearly all forms of defense against the physical security threats that a huge country – already larger than any of the nations of Europe – might encounter. The 2nd amendment is to enable the civilian citizenry to provide for their own security, from robbers and killers, from other governments and our own.
The gun rights debate often concentrates on self-defense, on target marksmanship, on hunting rights. But these went without saying in the Founding era. The Founders thought of these as parts of that regular practice with firearms that would produce the well-regulated militia that the nation would need.
If we go out on weekends for target practice, if we go deer hunting during the season, all this is just practice so that the militia is in fact well-regulated enough to provide for the security of a free state – that is, the security that keeps the state free. Free of what? Of threats from without and within. Free of threats from enemy nations and from our own government.
Remember, not all our states were free at the time of the War of Independence. If they all were, we would have had no such revolution. But Massachusetts had been under martial law for seven years; the Virginia territorial governor had dissolved the popularly elected House of Burgesses at Williamsburg. Our primary threats were seen as being from our own government, even more than from other governments. The Founders rightly believed that only if the government knew that the people were better armed than they were, would they respect the rights of the free people, and keep it a free state.
In essence, guns in civilian hands make a state free. Guns only in government hands turn it into a police state, a tyranny.
THE RIGHT OF THE PEOPLE
This is a right, not a privilege. The Founders made it clear that the right of the people to be armed is not some generous frill, to be granted or removed by law, on the whim of a legislature, an executive, a judge or a bureaucrat.
Since all the people make up the militia, all the people have this right. The Founders intended for children to be raised in houses with guns, so that they are comfortable with weapons, so that they are already “well-regulated” the second they reach the age at which they may be called upon to help secure their homes, their neighborhood, or their nation.
TO KEEP AND BEAR ARMS
Note that they said both “to keep” and “to bear.” The Founders encountered problems with shared armaments. There were towns in which the townsfolk had armories that the territorial governors confiscated, leaving the people defenseless. The Founders were therefore quite adamant that people should have their own guns in their own homes – both plenty of guns and plenty of ammunition.
If on a typical suburban block, only a quarter of the homes are armed, then the Founders would hope that this quarter would be very well armed, so that they have enough to share with their neighbors if the need should arise. Since all the citizens of the neighborhood are potentially part of the militia, it’s helpful for some residents to be gun collectors with a selection large enough to share; the very idea of any limit on the quantities of guns in a household, or the ammunition stores or magazine size, would be an unconscionable outrage to those who risked their lives that this nation could be free.
Just as there is no question that the Framers intended for us to keep arms; it says also, just as clearly, that we may bear them.
This means that we can carry them with us, whether openly or concealed, whether at home or in public. The government must not force us to lock our guns in a safe where we can’t get at them; we must be able to reach them at need. Laws against concealed carry or open carry are therefore unconstitutional as well, since the Framers knew that it was the knowledge that civilians are armed that keeps those who might impinge on our liberty in check.
Look at the crime statistics: states with open-carry or concealed-carry have fewer crimes and fewer assaults than states with neither. States with both open-carry and concealed-carry have the best of all. Chicago and Washington D.C., cities with neither, cities in which most firearm ownership is illegally banned outright, have the worst crime statistics of all. There’s nothing surprising about this. Consider:
If a mugger looks at thirty people on a street, sees five with visible holsters, and knows that another ten probably have their holsters hidden, he’ll do the math and realize that hoping to guess which ones constitute the unarmed half would be pretty poor odds. Eventually, he’ll choose a different line of work.
This is the beauty of it; you don’t have to be armed yourself to be protected by concealed-carry and open-carry; the knowledge that you might be among the armed protects you as well as your neighbor who is armed… as long as the local papers don’t publish a list of one or the other so that criminals know whose houses to rob and whose not to.
SHALL NOT BE INFRINGED
After all this, does this final part need to be explained? Note that the 2nd Amendment names no specific party here. Many other amendments say "Congress shall make no law…" But just to be absolutely clear in their meaning, they left that part out in this one. In the 2nd Amendment, the Framers allowed for no misunderstanding: NOBODY can infringe upon the right of the people to keep and bear arms. Not Congress, not the Executive Branch, not the Judiciary. Nobody.
As we have seen, the 2nd Amendment was among the ten conditions for the ratification of our Constitutional government. We would have no Congress, no President, no Courts, if it weren’t for the agreement to include a Bill of Rights that counted the right to be armed among them.
This is among the plainest, clearest, most important of freedoms, and its importance is demonstrated daily, as millions of crimes are averted or thwarted in America by civilians practicing this right, and as millions of foreigners, denied such rights by their governments abroad, are tyrannized, unable to defend themselves.
Would the rape rooms of Saddam Hussein’s Iraq, the killing fields of Communist Cambodia, the holocaust of Hitler’s Germany, the starvation camps of the Soviet gulag, have been possible without the prior disarming of their citizens? Never.
It is the unlimited possession of firearms in the hands and homes of free citizens that keeps a nation safe, and any attempt to restrict that right, whether by local, state, or federal authorities, is unconstitutional and illegal, and must be nullified by other responsible government bodies to preserve the legitimacy of our form of government.
Copyright 2013 John F. Di Leo
John F. Di Leo is a Customs broker and international trade compliance lecturer. His columns appear regularly in Illinois Review.
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