The counter to the murderous outrages, the shootings, that have overwhelmed us
all is not more firearms. What is needed is stronger weapons of the vote and
the pen. Emma Gonzalez and the others
who spoke out at the demonstration rally in Fort Lauderdale after the killing rampage there have it
right.
What is needed is new laws, and
those enforced. And should the current batch of lawmakers not provide them, or
the current policing forces not protect us, then we need to exercise the vote
and throw the current batch out and get people in who can make and enforce laws
limiting gun availability and use.
I’ve been thinking about what sorts of laws might be useful,
laws that both limit arms sales and use and still uphold the core values
represented in the second amendment. I am hopeful that such laws can be written, adopted and enforced.
If it is determined that there is no way
to limit sales and or use of arms within the purview of the current read of the
second amendment, then I believe we need to augment the meaning of the
amendment by further amendment. That approach of course is more difficult, since it involves an amendment to the constitution. We will look at
that possibility later in this essay.
So lets begin with some laws that do make sense under at
least some reading of the Second Amendment.
The Second Amendment
to the Constitution 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.” (The two comas are not part of the article as ratified
by the States.)
The notion of a “well regulated Militia” and its value to
the security of a free State, together constitute a prefatory clause to the
statement, “the right of the people to keep and bear Arms shall not be
infringed. The right of the people to keep and bear Arms is related to the
matter of having a well regulated Militia and a secure state. Whether it is
exclusively so has been a matter of debate, but the wording of the amendment
certainly suggests that a primary reason for this right is the matter of
security and a regularized militia.
Nothing in this wording suggests that the right to bear arms
supports insurrection, rebellion or revolution. Indeed it would be very odd if
the constitution included in it the right to bear arms specifically as a
protection against unwelcomed governance under the constitution. State and local militias in the South
did indeed bear arms against the Federal government, and doing so constituted
rebellion, not exercise of guaranteed rights.
The right to revolution and rebellion lies not in the constitution but
in the success of the revolution itself. If the revolution prevails, the right
prevails.Otherwise the so-called patriots are simply traitors.
So the romantic notion that “the State” in this instance
does not mean the government under the Federal constitution, and that the right
to bear arms is a guarantee of independence from federal government, is just
that – romantic.
The amendment is then about a well regulated militia in support of the security of the State.
“The people” whose right it is to bear arms, can most easily be understood as
meaning “citizens” organized in some fashion as militias. In our long history of such organization, a sheriff’s
posse, local police forces, a state
militia or national guard all have been examples of a “well regulated
militia.” When local policing powers
were not sufficient for protection, local militia groups had the right to exist
and take on such authority as necessary. And, by extension, individuals could
provide for their own protection in situations where they felt adequate protection
from larger organized militia was lacking or not immediately present.
A beginning point for limiting arms use might be, then, to
specify that certain arms are limited in production, license and use, to “well
regulated militia,” and that individuals, unless they could show cause why
their recourse to such militia for protection was inhibited or inadequate, could not posses or use such weapons.
Several sample laws:
Regarding use of assault weapons or automatic weapons.
(A)
No person, except those members of a well regulated
militia recognized by state or federal law, may purchase, own or use classes of weapons
determined to be designed for assault, or that fire multiple projectiles
automatically.. Or
(B)
Persons who are members of a well regulated
militia recognized by state or federal law may be trained to use the classes of
weapons designated as assault weapons or weapons that fire multiple
projectiles automatically, and may use them in the line of duty related to their
service in such militias. Such weapons must be registered by the militia to
which the person belongs and may be assigned to specific persons for their use.
No other sale, purchase or use of such weapons shall be permitted.
Regarding all other firearms:
(A)
Individual citizens, provided such individuals
are registered as members of an organized and well regulated militias recognized
by state or federal law, and have been trained in the use of such weapons, may own and retain firearms not part of a
militia armory and not excluded as assault or automatic weapons. The use of
such weapons for individual and household protection is to be understood as an
extension of powers granted to militia in defense of the “security of a free
state.”
Individual citizens not registered as
members of an organized and well regulated militia may be licensed to use such
weapons for sport or hunting, provided they receive training from a recognized
militia on the safe and proper use of such weapons. Such license does not
include the use of these weapons “in defense of the security of a free state,” except under extraordinary circumstances.
In
every case these proposals emphasize the point that use of or ownership of
firearms is an extension of the need to provide for a militia to defend the
security of a free state. A “militia”
would include everything from the Federal Armed Forces, the National Guards of
the several states, police and other law enforcement groups, recognized local
security organizations (including security services and neighborhood watch
groups) and any other organization the state deems able to provide both
training and supervision of the use of assault and automatic weapons.
Under
such laws no individual could legally own assault or automatic weapons and no
individual not a part of an organized militia could be licensed to use such
weapons. All other firearms could be owned and used by individuals provided
they received training in their use from a “well regulated militia” and were
licensed. It would be up to the states to set other limits on who may own or
use allowed firearms.
What
happens if some such laws are not enacted?
Could the Constitution be amended to make unambiguous the understanding
of the limits of arms bearing considered to be the people’s right? I think it could, but that would be even more
difficult than enacting specific laws to cover allowed weapons use.
Here
is an example of such an amendment:
On
the right to bear arms:
The
right of the people to bear arms shall not be infringed, provided that bearing
such arms is in defense of the security of a free state. The State, and the
several states, in order to provide for the security of its people, may limit ownership, bearing and use of such
arms to members of recognized militia or, in the case of arms for personal
defense or use of firearms for sport or recreation, the state may license individuals duly
trained for those purposes. The use of assault and automatic weapons is by
this amendment reserved for active duty militia members in training for, or in,
combat or police action.
Rapid fire weapons in the hands of individuals with personal agendas for action are a real and present danger to the security of a free State and to individuals deserving of the protection of that State. Not to limit the sale and use of such weapons is counter to the vision of a society that promotes life, liberty and the pursuit of happiness.
Your essay makes clear the intention of the Second Amendment and it's logical use. I fear, however, action is unlikely without a Constitutional amendment. District of Columbia v. Heller (2008) is the Supreme Court's ruling breaking with 200 years of precedence to separated the two clauses. As I understand it (not being a lawyer)this makes the right to bare arms an individual personal matter, a right which the government may not take away. Given the current court, Congress my even have a difficult time making laws to limit that right. I hope I'm wrong. I suspect Citizens United and Heller will eventually come to be recognized as terrible mistakes. Tom Downs
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