Second Amendment: Clear As Mud

Saturday’s TD published the letter “Second Amendment Isn’t Hard to Understand.” (http://www.inrich.com/cva/ric/opinion/letters.apx.-content-articles-RTD-2008-01-19-0014.html.) As I’ve mentioned before, the TD publishes a whole lot of letters interpreting the Second Amendment as guaranteeing your right and mine to own and bear AK-47s, Uzis and other killing machines. And they all opine that the amendment is crystal clear on its face. Our writer today is no different. After quoting the amendment (although not without adding her own words) our writer asks “Why are the words ‘shall not be infringed’ so difficult to understand in 2008?” So our writer not only adds to the language of the amendment but also interprets only a part of it. I could reply to the writer “Why are the words ‘A well regulated Militia being necessary to the security of a free State’ so easy to ignore in 2008.”

What our writer is unwilling to recognize is that the Second Amendment is not as clear as she says. Interpreting it without knowing the context in which it was proposed and ratified may just produce the wrong conclusion. She needs to realize that our founding generation was deathly afraid of standing armies. As British citizens, they surely knew that it was only about a century since Oliver Cromwell had used Britain’s “New Model Army” with its red uniforms to overthrow the king and have himself installed as Lord Protector. They also knew that the kings in Europe, including their beloved George III, maintained power by keeping large standing armies to protect them. Even during our Revolution there were many Americans who feared George Washington’s Continental Army as a force that could impose a new tyranny after ousting the British. Militias of the people, however, could provide for the national and state defense without the dangers of a standing army.

The first statement of what later became the Second Amendment was contained as Article XIII of the Virginia Declaration of Rights. It read,

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

The phrase “That the people have a right to keep and bear arms” was added to this language in 1788 by the Virginia constitutional ratifying convention in its proposed bill of rights. The New York convention broke up the right into three paragraphs:

That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

When James Madison submitted his version of the Bill of Rights to the Congress in 1789 the provision was close to its final language,

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

The final version, adopted by the Congress and then sent to the states for ratification, reversed the order of the first two clauses and dropped the conscientious objector provision.

To me it is clear that the right to keep and bear arms must be read in conjunction with the founding generation’s determination to rely on militias, rather than a standing army, for national defense. Certainly the right to bear arms is a right of the people, not the state or federal governments. On the other hand, the right was clearly intended to guarantee the existence of militias, not for any other purpose. Further, the fact that we now are perfectly comfortable maintaining a standing army, navy, air force and marine corps and that our state militias have been themselves formalized into National Guards and Reserve components, could lead one to the conclusion that the right to bear arms for the purpose of maintaining a strong national defense is no longer relevant in 2008.