Constitution

The Second Amendment in Today’s America

A long time ago I swore an oath to “support and defend the Constitution of the United States against all enemies foreign and domestic.”  Originally, the words meant little to me.  They were a tradition, an obligatory ceremony to enable me to do what I really wanted-to lead men and women in the service of arms.  I’ve been places since then.  Seen things that others perhaps have not-things perhaps I wish I had not.  As a result, my appreciation for that document and the society that it provides the working framework for have grown over the years.   With that appreciation has come a more developed need to understand it.  To understand not just the literal words that it includes but the important context in which it was written, amended and interpreted over the years.  To understand what exactly is foundational, and what is less so.  Because there are times when we, as a function of our civic duties, have to answer for our votes.  Times like the one we’re living in now.

In the last  15 years, there have been over 300 thousand people killed by firearms in our country. There have been 247 mass shootings in 2015 to date.  Presently, the ownership of personal firearms is protected by the Second Amendment.  As a result there has been no substantive federal legislation passed to address any public safety risk caused by the existence of firearms in our country.  Though the impact that meaningful legislation would have had these last few years is debatable, it is hard to imagine a reality where there would be none.  Which means that Americans are giving their life, every day, involuntarily, to preserve the Second Amendment.  And so we owe it to them to explain our unwavering support for it.

“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.”

This ambiguous, grammatically clumsy 27 words is at the heart of one of the most publicly argued debates of our times.  Though there’s plenty of room for interpretation of what the words mean, the Supreme Court has repeatedly interpreted its meaning to be at a minimum, focused on personal ownership of firearms.  I’ll leave the debate of interpretation to the lawyers, because for once, I am satisfied to take present rulings at face value.  When it comes to the Bill of Rights, interpretation is less important then understanding the role it has had in our national identity.   If the seven articles of the Constitution are the backbone of our government, the first ten amendments, the Bill of Rights, is its soul.

When you spend time in a place where most of these rights are in question, you find yourself saying things like, “if only they had a free press…if only they had due process…if only the government just didn’t take whatever they wanted from their people…if only these people didn’t fear the knock at the door in the night…”  You really get a sense of the power of the Bill of Rights by witnessing what happens in its absence.

There is one thing that I can’t ever recall saying though.  It’s this.  “If only these people had their own guns.”   Which tells me that as far as I have experienced, in a modern world, the Second Amendment’s utility holds a different value then some of the other amendments.  Which is fine.  Not all ten amendments in the Bill of Rights are created equal.  Most people outside of the legal profession couldn’t begin to tell you about the Seventh Amendment.   No one is dying over the right to a jury in a federal civil case though.  But arms that we have the right to bear are killing people every day.  So what were our founding father’s thinking when they passed it?  Thankfully for us, they left us a well documented explanation.  One that is a clear and unambiguous case for its re-assessment in our modern world.

In May of 1787, four years after the Treaty of Paris ended the American Revolution and six years after they were originally ratified, delegates from each of the 13 American colonies met in Philadelphia to improve the Articles of Confederation.  Four months later, the 55 delegates emerged from their secret meeting with a signed draft of the Constitution of the United States of America.  Which was not their tasking.  Professor Robert Ferguson of Columbia University writes:

“We forget how controversial the Constitution was in the moments of its birth. The document that now governs the United States was drafted in secrecy by men who knew that they had acted beyond the mandate given to them…they junked the Articles of Confederation altogether and wrote out their own document of fundamental principles. When they were done, they had substituted a much stronger ideal of union than the suspicious compromisers of the original Confederation had contemplated or would have allowed.”

It was as if today’s congress had formed a committee to review our congressional term limits or budgetary processes and had returned with an entirely new proposal for government.  You can imagine, the people of the day needed some convincing.   Enter Alexander Hamilton, James Madison and John Jay, also known as the Federalists.  Over the next year, these three men would publish 85 essays in the press aimed at convincing the American public that the newly drafted Constitution was a good idea. The essays would be called the Federalist Papers.  They represented one side of two major schools of thought at the time; union or confederacy (yes we would fight this out for good four score and seven years or so later).  Support for the Constitution meant you supported stronger central government than the present confederacy allowed.

Within a year, the campaign hit its mark and the Constitution would be ratified by all 13 colonies with one stipulation from Hamilton’s home state of New York.  A “bill of rights” must be added.  In 1789, James Madison, one of the three federalists introduced the “Bill of Rights” that would be signed into law  two years later.

This walk through your freshman year civics class is helpful because of context.  We’re trying to add some meaning to the Second Amendment, more meaning than the 27 words written into law.  People are dying.  And it’s important.  And the same men that wrote those 27 words, also wrote 85 essays advocating for their cause.  85 essays that cover 480 pages to be exact.   And you can find your answer clear as day in #8.

Alexander Hamilton wrote 51 of the 85 essays.  In #8, titled The effects of Internal War in producing Standing Armies and other institutions unfriendly to liberty we see some of our founding father’s most currently relevant thoughts on the Second Amendment.  In it Hamilton outlines two distinct types of nations.  Ones under constant threat of invasion and war and others that aren’t.  He references Great Britain as the latter and the other European countries as the former.   His argument is of course for Union because as one country, we are less likely to be at odds or threat of war with each other.

In such instances, Hamilton writes, “The army under such circumstances… will be utterly incompetent to the purpose of enforcing encroachments against the united efforts of the great body of the people”

On the other hand, if we remained a confederacy, our loosely affiliated states would leave us constantly defending our borders from each other.  Leaving a nation in which “The continual necessity for his services enhances the importance of the soldier, and proportionally degrades the condition of the citizen.”

Hamilton was selling the Union by highlighting the benefit of the small standing army it would require.  And with a small standing army, the power is always in the hands of the people, even when it comes to battle, just as long as no one decides to pass a law that prohibits us from owning our own guns.  Enter the Second Amendment and we’ve come full circle.  There’s one problem though.  We stopped being that nation that Hamilton had in mind a long time ago.

Eight days short of the 150th anniversary of the adoption of the Bill of Rights, the Empire of Japan bombed Pearl Harbor.  Thirty years of draft, four major wars and a defense budget that dwarfs any other country on the planet and we live in a very different world than the one Hamilton envisioned in 1788.  We have become the nation that he warned we would without our strong union.

Hamilton could not have predicted the path of globalization and technology that has shrunk the world to the scale that he viewed Europe or a North America of disagregated states.  But he did predict the outcome clearly.  “Our liberties would be a prey to the means of defending ourselves.”   Hamilton was not advocating for a small standing army at all costs.  Instead he was advocating for a union that would avoid the clear necessity of a large one.  Our union alone cannot do that today and though there are arguments for shrinking our military and a more isolationist approach to foreign affairs, a reality where individual gun ownership protects us from the force of our government has long since past.  And with it, so has the original intent and utility of the Second Amendment.   So why haven’t we changed it?  The answer, unfortunately has much less thought behind it than our forefathers put into drafting it. It’s not the NRA either. In a word, it’s tradition.

For 224 years, the same document that has given us our freedom of speech and assembly, our right to due process and worship, has told us it’s our right to be entirely unimpeded in our pursuit to own firearms.  Guns have been a part of our culture for much longer than we’ve been horrified by mass shootings or had murder rates in our inner cities on par with war zones.  We’ve bought guns to protect our homes, no matter how statistically less safe that makes us.  We have political activist groups whose sole purpose is to preserve it, though like I said, don’t blame them.   The NRA is an expression of our traditional mindset and frankly by itself, couldn’t make a dent in the media market that competes for our consciousness. In the 14 years before Sandy Hook, the NRA spent in total $81 million on congressional campaigns.  The annual media market in America is $288 billion.  The NRA, its small money and 1.5% of the population that are members are virtually inconsequential.   It’s not the NRA our politicians are afraid of.  It’s the media storm that comes with the suggestion of change they fear they won’t survive.

The gun advocates are the voice of tradition and principle. Which sounds and may even feel right.  But when we’re honest with ourselves, the intent of the Second Amendment as written, to keep the government powerless against and armed populous, has long since past it’s utility.  It’s not guns that keeps the government in check in 2016.  It’s information.  And organization.  And an aware population.  When we really get down to why we care about guns, it’s tradition.  And a part of our identity.  And I don’t want to minimize that without a reason.  But I think we’ve got a fair reason.

Something  happens when a tradition that is hurting or excluding people loses its utility though.  It dies. Like slavery, segregation, male privilege and marriage inequality, its time eventually comes.  My children won’t remember the “good old days” where people treated people right and you could have guns without problems.  They’ll remember mass shootings though.  They’ll remember a world where they can’t walk into anywhere with more than a few people without walking through a metal detector.  They’ll remember armed guards in schools.  They’ll remember never driving anywhere in the city after dark.  And then eventually, they’ll remember when someone somewhere decided enough was enough, and made a difference.  It may not be tomorrow. It may not be any time soon.  But it will happen.  And though I’m sure that means that our country is headed towards ruin, I’ll respectfully take this opportunity to point out that future generations have been ruining our nation with progress for centuries, just like those radical 55 delegates ruined the Articles of Confederation with the Constitution.

When I raised my hand to support and defend that document, that meant keeping it relevant too.  Right now part of it is in question.  And the consequences are unacceptable. We owe it to ourselves not to stop the discussion with the hand wave of the Second Amendment.  There’s too much at stake.  There’s a process to change things.  And one day, if we don’t allow room for incremental change on purpose, sweeping change will happen to us.  And that’s likely to be a far less desirable outcome for those who oppose it.

15 replies »

  1. I believe the author either fails to see than our right to bare arms was intended to protect us from our own government if necessary, or he believes that our military prowess has made that impossible. Based upon the paper I will asume it is the second. He is operating under the assumption that rifles, shotguns, and comercial explosives could not stand up to tanks, drones, and F-22s. In general he is right one tank would be worth 100 unorganized men with conventional weapons, and 1 F-22 would be worth 1000 unorganized men, 1 platoon of trained soldiers might be worth 100 unorganized men. But, he is still failing to take into account sheer numbers. There are somewhere between 90 and 150 million gun owners in the US. It is estimated that there are more functional guns in the US than human beings. Even if only 20 percent of adults age 18 to 65 were to in a very unorganized fashion take up arms against the great US military they would have more armed milita men than the 29 largest standing armies in the world combined. Ask any military expert out there. 30 million armed people regardless of how unorganized would overwhelm the US military in a matter of days.

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  2. Time to become civilized. Put down the guns. The government is not out to get us. Twisted. Thank you, Mr. Hugh’s for your very thoughtful and thought provoking essay. I am sickened that my granddaughter must know “active shooter” drills. She is 5 years old. I asked her why she has to do this and she said in case a stranger comes into the school. Again, enough with the guns!

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  3. Unfortunately guns are not going to go away no matter what laws are passed. It will just create a black market, remember prohibition? If it’s out there people will get it. I don’t think only criminals had a drink or two during this time.. What they did was illegal at the time, but I doubt all people who drank were career criminals. It the culture that must change, not the laws. Good luck with that. As long as people feel threatened they will protect themselves

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  4. Well written essay. Valid points made. However, the main point that is being missed in this, and every debate that centers around the Bill of Rights is that the intent of the Founders was to create a free nation. They recognized that certain rights were given by the Creator, and not the government. The Bill of Rights is the first 10 of those rights. Madison, in fact, in one of the other Federalist Papers argued that we shouldn’t even list any of our God given rights because to do so would later give the government the notion that they gave them, therefore they could take them. None of the weapons that our military has used in its entire history have been made by the government. They are made by private citizens, and sold to the government. So, essentially what is happening is that I create a tank in my garage, and the government decides I have no business having a tank and takes it away. This is wrong because my right to have a tank was not given me by my government in the 1st place.

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  5. An excellent article and, amazingly, excellent points made in the comments as well. I’m just awestruck to have found a piece of the web in which civilized, rational discourse can still happen. I feel like we should all be whispering for fear the trolls will find us.

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  6. If at some point you decide you are incapable of owning a firearm to protect yourself, your family and your property then that is fine. Maybe you can talk your way out of being killed by a home invader or burglar or lack the intestinal fortitude to protect your family and rely on others to do it for you. There are those of us that will not be victims. There are those of us that believe that it is our God given right to defend our own lives and those around us. You would actually choose to delegate these rights to a government that can’t balance a budget or even have a leader that can’t do something as simple as tell the truth? I ask you not to speak for me. I do not share your views of a dillusional utopian society where when a law is passed everyone obeys it. I pray for your cowardly soul.

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    • What were you looking for? A secret place where cowards could gather and discuss diplomatically how to take away the rights of others? I do not tell you that you have to own a weapon. I don’t ask you to consider it either. I do ask that you do not infringe upon my rights though.

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  7. The simple truth is that guns will always be available to criminals, in these mass shootings how many are in “no gun zones” in places where it is still legal to carry a firearm for protection these shooting do not occur. And that is just one argument. It is held to be self evident that I have the right to protect myself and my family, the police can not nor will ever be able to know where crime will occur before it does , so the best they can do is show up after the fact .

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    • Who’s taking your guns Jeffery ? The argument of criminals will always get guns is the same as some responsible gun owners will accidentally kill someone. No you can not prevent every gun death , but if you can even inadvertly prevent one, I think gun safety is worth it. Again, no one is taking a single gun from gun owners, our potential legal buyers. By the way, I have seen nothing in the constitution that implies that a felon can not own a gun, or can’t vote. Point, the constitution is in some sense a living document e er evolving. That’s why we have amendments.

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      • No, you can’t prevent every home invasion, rape, burglary, or murder. But if you can even inadvertently prevent one by owning a firearm, I think it’s worth it.

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