Fun with the SECOND AMENDMENT

You may not have been aware of this, kids, but words have magical powers. We're not talking about ordinary, run-of-the-mill words here like "please" and "thank you" and "[DELETED]," but extra-special words like "gun" and "semiautomatic" and "Second Amendment." Mention these words, and, like a bad Stephen King movie starring a St. Bernard, ordinarily civilized people start foaming at the mouth.

Take, for example, the recent decision by the Ninth Circuit Court of California to uphold that state's ban on "assault rifles," which (to simplify the matter beyond all recognition) are defined as semiautomatic weapons that hold more than 10 bullets per magazine. This means that if you pull the trigger on one of these guns and fire off one bullet, the gun will, for your killing convenience, put another bullet in the chamber for you, ready to fire—and then repeat the procedure until you run out of bullets! Modern technology truly is wonderful isn't it?

Apparently, not everyone thinks so. Much like those filthy hippies who think we should do filthy hippie things like recycling instead of just cutting down more trees, the California Ninth doesn't think we should be allowed to use modern conveniences like assault rifles. Once the judge handed down his decision, patriotic defenders of our right to own high-powered machines of destruction like assault rifles and SUVs and McDonald's coffee and Barbara Streisand albums began comparing him to the Nazis—and rightfully so, since the Nazis were noted for their enthusiasm in taking guns away from people and giving them to other people who used them to shoot Jews. We look forward to Jerry Bruckheimer's execution any day now.

"But without my assault weapons, how will I hunt those flak-jacket wearing deer?" asked a good American armed with the latest deer-destruction hardware and a 6-pack of Coors. "The Second Amendment gives the people the right to own weapons to protect themselves against the government!" e-mailed another patriot from the security of his Nevada bunker. "My loaded handgun that I kept hidden in the cookie jar killed my baby!" replied a distraught mother, whose dirty filthy long-haired hippie dead baby probably shot itself just to get her to change her mind about gun control. "Guns don't kill people, corporations do!" shouted another filthy hippie from a passing Volvo. "Get your hands off my MAC-10, you damn dirty apes!" mumbled Charlton Heston, wandering, disoriented, along Ventura Boulevard. You get the idea.

Obviously, we can't all be right about what the Second Amendment means. Let's try to solve the problem by going back to grade school and diagramming the sentence, "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." What the heck do all these big words mean?

The first part of the sentence is, "A well-regulated militia." Simple enough. This tells us that what we're discussing is a militia, or a part-time civilian military organization like the Marine Corps Reserve or the Knights of Columbus. Note the compound adjective "well-regulated." This implies that the militia is subject to the rule of law, that is, military discipline—some sort of structure of officers and enlisted men with penalties for disobeying orders, something that Billy Joe and his buddies shooting their AR-15s at woodchucks most certainly do not have, unless you count the influence of Captain Morgan.

The second part of the sentence is "being necessary to the security of a free state." This is what we grammar Nazis call a "subordinate clause." This particular subordinate clause sets up a conditional sort of situation, saying that what comes next depends on something having happened before: "Bobby, because he picked up his toys, was entitled to dessert." "Barbara, because she was a very naughty girl, received a thorough spanking." Even John Ashcroft can explain what the word "security" means, so the other important word for us to direct our attention to in our little subordinate clause is the word "state." A "state" is a territory and its occupants organized under a recognized government—that is, not Charlton Heston, not your Counterstrike clan, and not a bunch of guys in camouflage hiding out in a bunker with enough cases of Bud Light to last the Apocalypse. So, what we're clearly talking about is a militia set up to keep the state, that is, the government, safe.

The third part, "the right of the people to keep and bear arms," gets kind of complicated once you understand the history behind the thing. "Right," "people," and even "keep" and "bear" aren't that difficult words, and "arms" means "weapons," like "swords" and "knives" and "whack-a-mole mallets" and, of course, "guns." Of course, it's the "guns" part that makes this difficult.

At the risk of stating the obvious, we no longer live in a society where the ordinary individual has a reason to carry around the latest military hardware. In the eighteenth century, the most sophisticated piece of personal armament was the Ferguson breech-loading flintlock, of which only about 200 were ever made. Most people had muzzle-loading smoothbore muskets. Though the top-of-the-line civilian weapon, the Kentucky long rifle handmade by Pennsylvania craftsmen, differed considerably from a mass-produced British military musket, the difference wasn't so great that one had a decided advantage over the other. It certainly wasn't as great as, say, the difference between a deer-hunting rifle and a shoulder-fired antitank rocket.

Plainly, things have changed considerably between the eighteenth century and the twenty-first. In those days, rather than a standing army, we had amateur militias (like the minutemen) that provided their own weapons—and, despite the fact the citizen-soldier was a much-vaunted ideal of the Roman Republic that was revived in the Renaissance by Machiavelli, the American militias got their asses kicked in set-piece battles until Von Steuben taught them disciplined drill. (Machiavelli's Florentine militia got its [butt] kicked by Spanish professionals, too.) Today, rather than having citizen-militias as we did in the early years of the Republic, we have a very modern and very professional military that makes the idea of amateur armed resistance ludicrous. Heck, if we relied on citizen militias today, Canada could take us over.

However, what the Second Amendment, a relic of the early Republic, undeniably says is that, because national security depends on a well-organized militia, people have the right to own weapons.

Funny how one little clause on a 200-year-old piece of paper can cause so much trouble. The thing is, the Constitution is just that: A 200-year-old piece of paper with words on it—words written by people, like the Bible or the script to the pilot episode of Family Ties. It's no more holy or infallible than the latest issue of Cosmopolitan or the Nicean Creed. The Founding Fathers weren't divinely inspired geniuses; they smelled bad in Philadelphia summers and [DELETED] just like everyone else did. Putting libertarian black-helicopter-conspiracy theories in their aristocratic, plantation-owning [DELETED] mouths, or assuming that they wanted the American people to have the capability of overthrowing the government that they had spent a long, hot summer putting together, borders on the ludicrous (especially considering how they quickly put down the first challenge to the Federal government, Shays' Rebellion in Massachusetts.) Therefore, defending gun ownership while wearing an NRA pin and a bracelet saying "WWJD" ("What Would Jefferson Do?") is worse than illogical; it's ignorant.

Since the Second Amendment is just words, all the constitutional scholars in the world sitting around trying to apply its antiquated terminology to our modern world is like a bunch of well-armed rabbis trying to interpret the precedent of God's smiting Onan for spilling his seed to modern techniques of in-vitro fertilization, or the Catholic Church disallowing birth control based on something Thomas Aquinas wrote. The Constitution ain't perfect, and it's had amendments repealed before—just look at Prohibition.

It seems that we have two choices. We can either literally do what the Second Amendment says and establish Swiss-style well-regulated militias and allow the people who join them to have all the damn machine guns they want—and face military discipline if their weapons are misused—or amend the Constitution to either do away with the Second Amendment or make it more relevant to our modern world.

Obviously, we can't do away with guns in America. The first and most obvious reason is that since we poisoned all the wolves, there remain an awful lot of deer in the woodlands and on the highways of America that desperately need to die. Also, besides the fact that this ain't Merrie Olde England and people in rural areas actually have to defend themselves against things like bears and mountain lions and wild pigs and Marlon Brando, I also believe people have a right to defend themselves and their property from human predators, as well. (Unfortunately, they don't seem to have the right not to be sued afterwards.) Furthermore, many people, who are undoubtedly somewhat insane but who are entitled to their opinions, find shooting guns to be fun. (We, personally, hate loud noises and prefer the whisper of steel on a fencing strip.) In any case, there is no reason people shouldn't be able to own lever-action, small-magazine rifles, shotguns, and even (well-regulated, registered, and controlled) handguns.

But should the right to own them be in there with our right to free speech and the right of women to vote? Nuh-uh.

What we need is a sane and non-dogmatic way of looking at guns in America—and we need to recognize that owning a firearm may be, like driving a car, a privilege and a responsibility, but it is not, and should not be, a right.

Late addendum: Leaving aside, for the moment, the fact that Waco shows you what happens if you try to "resist" the government, guns aren't the problem so far as the crime rate goes. Thats more a social and economic, and even a geographical, issue. And calling us liberal pinko tree huggers ain't gonna help with anything.

what we're clearly talking about is a militia set up to keep the state, that is, the government, safe

That's not at all what TJ said. Those dead white males said gun rights protected our liberties FROM the government. The Bill of Rights was intended as a check on government power.

"Get your hands off my MAC-10, you damn dirty apes!" mumbled Charlton Heston, wandering, disoriented, along Ventura Boulevard.

The NRA supported the federal assault weapons ban, and taking a shot at Heston's Alzheimers is extremely crude.

The third part, "the right of the people to keep and bear arms," gets kind of complicated once you understand the history behind the thing. "Right," "people," and even "keep" and "bear" aren't that difficult words, and "arms" means "weapons," like "swords" and "knives" and "whack-a-mole mallets" and, of course, "guns." Of course, it's the "guns" part that makes this difficult.

So "arms" doesn't mean firearms? That's bull----, just go to the first part of the sentence, which clearly refers to the militia. What kinds of arms does Mr. Mofo think militiamen used? What an idiot.

Heck, if we relied on citizen militias today, Canada could take us over.

The Canadian military might be able to move in with impunity, and take over America, but it would never be able to hold the territory. It would be driven back. Canadians don't have the resolve to be an occupying power, not of a nation ten times its size with active guerilla resistance forces.

In any case, there is no reason people shouldn't be able to own lever-action, small-magazine rifles, shotguns, and even (well-regulated, registered, and controlled) handguns.

Do the handguns have to be lever-action too?

The second part of the sentence is "being necessary to the security of a free state." This is what we grammar Nazis call a "subordinate clause." This particular subordinate clause sets up a conditional sort of situation, saying that what comes next depends on something having happened before: "Bobby, because he picked up his toys, was entitled to dessert." "Barbara, because she was a very naughty girl, received a thorough spanking." Even John Ashcroft can explain what the word "security" means, so the other important word for us to direct our attention to in our little subordinate clause is the word "state." A "state" is a territory and its occupants organized under a recognized government—that is, not Charlton Heston, not your Counterstrike clan, and not a bunch of guys in camouflage hiding out in a bunker with enough cases of Bud Light to last the Apocalypse. So, what we're clearly talking about is a militia set up to keep the state, that is, the government, safe.

Notice that he left off any explaination of the "free" state part.

Of course he's also wrong about the subordinate clause. In the first place the "clause" is the entire first part of the sentence, i.e. "A well-regulated militia being necessary to the security of a free state". It is not a subordinate clause, nor a restrictive one. It's an explanitory clause, in modern terms it would read "Because a well-regulated militia is neccessary to the security of a free state,", and that is how the Supreme Court interpreted it in "Miller". The hyphenate term "well-regulated" does not mean "controlled by government, especially not the federal government. "well-regulated" means properly functioning, or fit for it's inteneded purpose. Of course one would have to either read history, or at least consult a contemporary dictionary to know that. Still the declarative clause, "the right of the people to keep and bear arms shall not be infringed" is pretty darn clear. For further discussion see: Schullman interview with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of American Usage and Style: The Consensus.

Here is my letter to the gentleman (free republic is about activism after all isn't it?:

I read your latest piece. It was pretty funny even if inaccurate. I take issue with your definition of the term “well-regulated.”

It is incorrect. I would suggest that you look in your Oxford dictionary. I’m sure you must have access to one. Well-regulated means trained or synchronized. It does not mean “regulated by government” as you suggest.

Furthermore, what you think is a good idea regarding the second amendment is of no concern. The Constitution is the Supreme Law of the land. There is no “good idea” clause in the constitution that exempts us from adhering to it if we can invent something that the founders might not have considered.

The right to bear arms is an extension of your own right to defend yourself. Your right to life. The rights in the constitution are not granted by the document but merely enumerated. While they do tell government to keep its hands off our liberties, they did not create these liberties. Jefferson wrote in the declaration of independence “governments are created among men deriving their just powers from the consent of the governed.” The government cannot, without fraud and force, execute powers which the people they serve do not first possess. It’s quite simple really. You can’t sell your neighbor’s car without committing fraud and you cannot give the government powers you do not have.

Thus, the government itself may not possess firearms without committing fraud unless you can. And it cannot prevent you from owning firearms because again, this is not a power that you possess. You cannot tell your neighbor that he can’t possess a firearm and you cannot give the government such power to exercise on your behalf.

I would suggest that you read over the last Supreme Court case involving the second amendment, US v Miller, decided in 1939. The court performed a thorough bit of research concluding that the militia was the entire collection of people amenable to serve in the military. And at the time they were expected to bring their own guns. The militia act of 1792 defines the militia as all men between the ages of 17 and 45 who did not object for reasons of conscience. You are the militia as am I.

There is another case in the 5th district I believe which directly opposes the 9th’ circuit’s reading of the constitution. This is good news for those of us who want the constitution literally interpreted because it is likely that we will finally see the Supreme Court decide a second amendment case in our lifetime. As you probably know the Supreme Court doesn’t generally accept a case unless there is disagreement in the district courts.

Here’s what Justice Thomas said about the second amendment in his concurring opinion in Printz Sheriff Mack v US which overturned the “unfunded mandate” portions of the Brady Bill:

If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries §1890, p. 746 (1833).

It is quite likely that we will finally get a court ruling which states what we all have known for quite some time: The second amendment guarantees the right for citizens to own firearms on a personal basis and not just those deemed acceptable by the state. As US v Miller interpreted the amendment, firearms which served a military purpose were exactly the type of arms being protected. That would of course mean fully automatic weapons today.

I hope that you don’t dismiss this email out of hand simply because my view disagrees with yours. I would urge you to take a second look and consider what you’ve already written on the subject. You make an excellent point:

“Once the judge handed down his decision, patriotic defenders of our right to own high-powered machines of destruction like assault rifles and SUVs and McDonald's coffee and Barbara Streisand albums began comparing him to the Nazis—and rightfully so, since the Nazis were noted for their enthusiasm in taking guns away from people and giving them to other people who used them to shoot Jews.”

You may have been completely facetious here but it is absolutely true that this is what occurred in Hitler’s Germany though perhaps not in the way you might think. Exemptions to the gun laws were for citizens only. Non-citizens were not allowed to own firearms. And so rather than passing new gun-laws to further restrict ownership, Jews, Jehova’s witnesses, Gays, and other undesirables were claimed to be non-citizens. And then marked for death. This was easy to do since they had been stripped of their guns.

Before you say that it can’t happen here, the exact same thing did happen here when the Dred Scott decision was handed down. Justice Teney, who didn’t have even a little bit of constitutional support for this position, ruled that free blacks were non-citizens and instantly took them from the category of protected citizens with rights, into the abyss of non-human status since the constitution does not provide protection only to citizens but to people. The doctrine of “citizen” status as a guide for government behavior arose from racist anti-gun laws and court rulings which attempted to place rights out of reach from the freed slave. For an excellent article citing the laws and cases, read Clayton Cramer’s “The Racist Roots of Gun Control.” You can find it in many places on the internet.

Good luck,

Rick Fisk

rfisk@lycos.com

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