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There Is No Constitutional Right to Bear Arms | The Triangle

There Is No Constitutional Right to Bear Arms

The Second Amendment to the Constitution is among the most debated 30 words in American history: “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.”

If one reads only the last 14 words of this sentence, it seems to unambiguously affirm the right of citizens to gun ownership. But that’s not what the sentence as a whole states. The 16 words that precede them limits such ownership to a single purpose, namely participation in a “well regulated Militia.” This phrase, subtended by its intended purpose, means participation in a state-authorized force for the protection and preservation of the Commonwealth.

In plain English (and this is about as plain as you can get), Americans may own guns to use for service in a militia; that is, a body of armed men defending the security and integrity of each of the several states of the Union. It did not mean a federal land force, for which the appropriate term was “army.” There was no such force in existence when the Constitution was ratified in 1787, the army of the Revolutionary War having been disbanded. The First Article of the Constitution envisioned such a force, and a navy to go with it, but left its provision and support to Congress.

This might include the use of state militias to enforce federal laws and to “suppress Insurrections and repel Invasions,” but only under command of officers chosen by the states themselves. The president was to be the Commander-in-Chief of such forces and of state militias when pressed into federal service.

In short, the federal forces were to be substantially composed of state militias. Commanded by the president, they retained their own officers and were dependent on biannual appropriations from Congress. They were not to be a standing force, but raised and supported for as long as necessary. The intent was that the militias themselves were to be the only permanent military force in the new nation. This may seem strange to us, but the Revolutionary Army itself was largely composed from colonial militias, and there was deep suspicion of standing national armies. With this in mind, we can better understand state militias themselves.

They were the only regular armed force in the country. Lacking permanent arsenals of their own, they were dependent on the private arms of those who joined them. Without such private ownership, they would have been impossible to maintain as constituted.

Private or semi-private militias (and such did exist as in the slave patrols of the South) were potentially dangerous, and thus the militias for which weapons might be kept by gun owners themselves were described as “well regulated,” i.e., authorized by and subject to the states. This, then, was the only gun ownership protected as a right under the Constitution.  Of course, guns had other purposes too. They were used for hunting and occasionally for self-defense. Like any other commodity, they could be lawfully purchased, sold or inherited.

They could also be regulated, with laws governing their acquisition and use. In a rural society, their uses were obvious. But their possession existed as a right for one purpose alone—militia service. If you were not eligible for such service, your ownership of a gun was, subject to whatever rules pertained, only a legal entitlement. But it was not a right, and it certainly would not have been singled out by a Constitutional amendment except for its necessity in the common defense.

That necessity no longer exists.

State militias and federal forces maintain their own arsenals, and so the Second Amendment is an anachronism, relevant to a former time but not to ours. It should thus be repealed, as it no longer serves any purpose.  There is precedent for this in the 21st Amendment, which repealed the language of the 18th Amendment prohibiting the use of alcohol. A simple act of repeal would not make gun ownership illegal, but merely subject to the same requirements and restrictions as any other commodity. State and federal laws would govern its possession and use.

In fact, many such laws already exist and have for a long time. The problem is that there is little will and less capacity to enforce them, and that they do not begin to address the culture of fear, greed and social pathology that makes the gun industry the great untouchable of American life.

If there is a single great impediment to rationally approaching the gun problem, however, it is the Supreme Court’s 2008 decision in District of Columbia v. Heller, written by Justice Antonin Scalia and adopted by a 5-4 Court majority. This stated that the ownership of firearms was a Constitutional right “unconnected with service in a militia” and to be upheld as such, subject only to the restrictions governing other protected rights. Not since the Dred Scott decision declaring slavery to be a Constitutionally-protected property right has any Court made a more brazen, not to say outrageous ruling. With a stroke of the pen, Scalia struck 16 words from an Amendment to the Constitution, namely tying gun ownership as a general right to military service. His excuse for this was that the clauses containing these words were merely “prefatory,” whereas the clause that followed them was the “operative” one. Since those first clauses set out the conditions under which the last one obtained, Scalia was not only literally rewriting the text of the Constitution, but the laws of grammar as well. Several hundred thousand gun deaths later, we can gauge the effects of Scalia’s pen replacing that of James Madison.

As Justice John Paul Stevens pointed out in a scathing dissent, Heller overturned a prior Court ruling in U.S. v. Miller that had banned the ownership of sawed-off shotguns on the basis of their inapplicability to militia service, a decision upheld for seven decades. The only remedy for Scalia’s mischief, Stevens wrote, and the logical one in a modern society, was to revoke the Second Amendment itself, the course I have favored here. This would not ban gun ownership itself. It would simply eliminate it as a constitutionally protected right to serve a purpose that no longer existed.

That could facilitate the enactment of essential gun laws, and perhaps even give legislators the courage to pass them. And that might give us something on our nightly screens beside the unending stream of massacres in malls, playing fields, schools and churches that make us the spectacle of the civilized world.