Why your second amendment argument is bullshit

It seems like a misguided understanding of the Second Amendment has stood in the way of real debate on the issue of gun regulation. Hopefully this an analysis of the language and history of the Second Amendment will help start to clarify that argument.

Just say meh to guns

First of all, so I don’t lose the pro-gun reader, I own a gun. Actually, I own a gun, knives, swords. I used to own a bow and a crossbow. I still kind of wish I had a handheld repeating crossbow, but that’s only because I’ve been a D&D geek for too long.

I’m a little scared of the ideas of the extremes in either direction. I’m creeped out by the idea of a government setting in place an action to remove guns completely from civilian ownership, but I’m also creeped out by people who talk about needing guns to protect them from the government, or zombies. I’m creeped out by people who seem to pray that someone will break into their house so they can shoot them.

Perhaps this is an issue where ambivalence is key. Gun grabbing seems like a boogeyman,  yet, I think a world without guns would be a better world. Yet, as a historian, I know that there was plenty of violence before guns. Yet, as a viewer of Timecop, I know that the violence never reached the levels of destruction in the past that rogue time-travelling bandits with laser-targeting machine guns could produce.

time cop bandit

Imagine a 21st century outlaw let loose on any time before 1800.

While I’m not ideologically against guns, I’m not falling for the distraction that “guns don’t kill people, people kill people.” Weapons violently change the course of history. We know that the evolution of weaponry has turned the tides of civilizations. I believe it was Attila the Hun who owes wide-reaching military to the fact that his armies had the superior power of …the bow and arrow.

gun controlWeapons violently change the potential for casualties. Guns, like cars, need to be subject to sober and reasonable control. We balk at the idea of driving without any licensing and drivers who are stoned, drunk, out of their mind on painkillers, mentally unfit, or too old to be able to see clearly or make quick decisions. Yet some people balk at the idea of any regulation for something specifically designed to cause damage.

It’s not that violence would ended merely by a gun ban, but reasonable people are not looking for a gun ban and are not expecting to end violence. Problems with motor vehicle violence and irresponsibility mainly have to do with culture and education. A greater presence of DUI checkpoints, accountability for bars, and presence of an effective public relations campaign have the effect of influencing the culture and do drastically improve alcohol related statistics. Friends are more likely to discourage friends from driving drunk, bars are less likely to serve drunk customers and more likely to send for a cab, and people take the various dangers more seriously because the message is present.

With guns, what we have is a nonsensical set of premises that teeter from one extreme to another. We have exploitation of every opportunity for political points on either side, and we have a glorification of or demonization of guns that will do nothing but confuse the uninformed and empower the all-too-creepy.

Sober gun regulation encourages sober cultural treatment of what should be a weighty and mature concern.

Even though most Americans, including most gun owners, are in favor of tougher gun regulation, the push for better gun laws, for closing the loopholes that allow for no-questions-asked gun purchases, for mental health and felony screening, is usually met with the argument that the Second Amendment somehow guarantees unfettered access to guns.

Even though most Americans want more and better gun regulation, and a more nuanced and pragmatic discussion about gun culture, there is still a very loud very intractable minority that screams “Second Amendment! na na na!” plugs their ears, and commits to completely shutting down all discussion.

The bad news for them is that the Second Amendment is not there for them. Their Second Amendment argument is bullshit.

There is nothing in the second amendment that guarantees unrestricted access to firearms by individuals. Let me show how we know this.

A basic historical and grammatical analysis of the second Amendment

The words

This is the full text of the Second Amendment

second-amendment

Complete Second Amendment text. “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.”

It’s short and sweet–done so, ironically, to avoid confusion. However, it should be argued that the confusion is only an emotional one.

The Second Amendment is a compound sentence with an independent clause preceded by two modifying dependent clauses.

The Supreme Court interprets “A well-regulated militia.” as implying the imposition of proper discipline and training.” IMPOSED proper discipline and training. People that argue the second amendment protect gun ownership usually ignore this fundamental point.

Paraphrased, the second amendment modifies the keeping of arms with regulation through compelled discipline and training.

The second clause, “being necessary to the security of a free state,” modifies the first and main parts. Why do we need a well-regulated militia? To protect the security and freedom of the state.

It is this simple. Well regulated gun ownership The security of the free states is the only function for which well-regulated gun is guaranteed.

To paraphrase, the first two, modifying clauses establish that a well-regulated and trained militia with is necessary for the security and freedom of the states. 

The final part, “the right of the people to keep and bear arms, shall not be infringed,” is equally clear, but maybe not at first glance. It establishes the right of “the people.” This is tied to something called the “body politic.” It’s a phrase you might have heard from some bloviated gas-bag posting in a highfalutin’ journal… ahem… and have a decent sense of what it means, yet never really checked. I used to think it meant body of politics.

It actually means. “the people of a nation, state, or society considered collectively as an organized group of citizens,” and “a group of persons politically organized.” A body politic is also “a metaphor in which a nation considered to be a corporate entity.” (Under the old use of the word corporate.)

When the Bill of Rights or the Constitution is addressing an individual’s rights, it does so explicitly.

  • In the the Fifth Amendment it speaks of the individual: “No PERSON (individual) shall be held to answer for a capital, or otherwise infamous crime… nor shall any PERSON be subject for the same offence twice…”
  • In the Sixth Amendment, it speaks again of an individual: “The ACCUSED shall enjoy the right to a speedy and public trial.”
  • The Fourth Amendment drives this argument home by parsing between the collective and the individual: “The right of the people to be secure in their PERSONS, houses, papers and effects…” They first speak of the governed body, but quickly make clear people are to be secure in their persons against unreasonable search and seizure.

When the Bill of Rights or the Constitution is addressing the body politic, the people, the plurality, they do so explicitly.

  • “We the people of these united states.”
  • The first amendment, “…the right of the PEOPLE to peaceably ASSEMBLE.” This is why loitering can be illegal and protest cannot be made illegal.” (Don’t hear too many people throwing a fit over THAT one.)
  • “In the second amendment, “the right of the PEOPLE to keep and bear arms shall not be infringed.”

The Second Amendment never avows that individuals must be allowed to buy and collect guns in any capacity they choose, free of regulation. It guarantees nothing outside of a trained body serving a governing body for the body politic.

The history

At the time of the drafting of the Constitution and the Bill of Rights, gun ownership wasn’t something considered controversial. Most guns were owned by rich, or at least land-owning white men, the gentry, traders, and pioneers. While Indians did own guns, they were usually an inferior quality of trade gun. Also, an indian on a horse could loose thirty arrows in the time it took a man to reload and fire a gun.

They had no cause for concern of heavily armed crowds of the poor, or blacks, or women. The power and money and almost all the land was in the hands of rich, white men feared the power of a centralized tyrannical body. Remember that they had recently fought to free themselves from the British crown. As the states navigated their way through the ultimate structure of the federal government, the one thing that slowed the process down was near universal distrust of a federal body that could potentially have overwhelming financial and military control over the states.

There is nothing in the constitution or any of the amendments that tries to curtail gun ownership, but there is nothing that guarantees individual gun ownership. Even if you ignore my statements of facts or following assertions, you can read the words themselves; there is definitely nothing that promises uncontrolled, unregulated or untrained gun ownership. It instead attaches those each as stipulations to keeping guns. In almost all previous drafts of the second amendment, the modifying stipulations are present in some way.

Virginia Declaration of Rights, June 12, 1776
“XIII. 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.”[41]

A Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania, 1776
“XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”[43]

A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts, 1780
“Art. XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.”[42]

Proposed by James Madison June 8, 1789 to the House of Representatives:
“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.”

 

Common misunderstanding of the Second Amendment prevails in most segments of the population mainly because of the perpetuation of incomplete or purposefully inaccurate interpretations of the Second Amendment. People seem to love quoting the second half of the amendment, or cutting and selectively pasting the words of founding fathers speaking about the issue at the time.

second_amendment

Ignoring part of a thing ignores all of a thing.

An example of this quote splicing. Notice how in context the message changes:

Partial: “The great object is, that every man be armed…Every one who is able may have a gun.

Whole: “May we not discipline and arm them [the states], as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed.But can the people afford to pay for double sets of arms, &c.? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for may years, endeavored to have the militia completely armed, it is still far from being the case.”

— Patrick Henry speaking at the 1788 Virginia debate to ratify the Constitution. The partial quote was used by Stephen Halbrook in The Right to Keep and Bear Arms.[5]

The above quoted material is from “Interpreting the Second Amendment,” at Lawsonline.

There are many good sources to learn about the historical context and the expressed sensibilities, like the above and at Cornell University online. Make sure any sources you use to better understand the Second Amendment, or ANY of the Bill of Rights, or …ANYTHING, be primary sources or objective resources like these, and NOT libertarian and conservative  websites that are guilty of the worst kind of shenanigans. There is no real agenda to ban guns. Politicians that express a wish that there were no guns are not exactly confessing to some Illuminati/Mason/George Clooney plot to rid Americans of Guns so Obama can become supreme ruler of New Kenya.

Admittedly, progressive sources shouldn’t be trusted implicitly either, since they too share an ideology and will tend to be slanted by bias, but that is why you have articles like this that way what actually exists and offer argument here on the page, that reveal tactics and  demure from heavy bias.

Gun advocacy groups might say that they’re for some sort of control or regulation, but they betray this when they refuse to even discuss any method that would determine if a potential buyer is indeed batshit crazy.

There are plenty of worthwhile ideas for regulation that would in no way hamper private gun-ownership, but for that to happen, we must first overcome the paranoid and pathological arguments that are allowed to enter into reasonable mainstream debate, but that’s a discussion for the next article. For now, give your hysterical friends a friendly kick in the face and tell them that hyperbole alone won’t advance this or any other politically entrenched debate. Gun regulation must grow out of a mature society and must be a reflection of the desire for a mature and cautious society.

 


 

gun-rights-liberal-logic-piers-morgan-second-amendment

P.S.

Hey! The limey jackass is making a perfectly cogent point that could bear discussion amongst the non-drooly.

Also, while, satellites and streaming internet are certainly a technological advance, they aren’t exactly dangerous.

UNLESS you are a multi-national corporation and that technology is in the hands of people like us!

Efforts to regulate media and the internet continue and to such a degree, it makes the specter of gun bans seem like an old woman wagging her finger and clicking her tongue.

Maybe we should focus more of our attention and ranting on THAT contemporary political issue! The corporations are the new tyrants, and no amount of modern arms  can protect us from them. Only critical thinking skills and the cooperative action of the body politic.

The new militia member is the independent informed reader.

8 Comments on "Why your second amendment argument is bullshit"

  1. Brilliantly executed article. There was a little bit of controversy about gun ownership during the time of the Founding Fathers but it involved whether or not the Quakers could remain pacifist and refuse to own guns. The reason? You hit the proverbial nail on the head…the Founding Father’s wanted civilians armed against potential outside invasion more than they really feared an internal federal threat. This was because historically nation states with armed citizens (not necessarily armed with guns) were less likely to be overrun by neighboring hostile states. But EVERYONE was martially trained in those states- think Sparta. Anyway…D… great job on this. Seriously this may be the best article I have read on the topic in a while and I can only think of one other writer who comes close on this topic (and he supports common sense regulation too).

  2. Brilliant, now who do you get the gun culture to read it. I agree, we don’t have to ban them, but they can be treated like we do cars.

  3. mIchael Hansberry | September 13, 2015 at 3:39 am | Reply

    Other than the-other-guy’s argument-is-BS, what argument are you making exactly?

    At times you seem to be making a States Rights argument (as in Hickman, 9th circuit), at other times you seem to be making a Collective Rights argument (as in Silveira, also 9th circuit), but both of those theories have been discredited such that the dissenters in Heller latched onto a version of the limited individual rights theory. However the Heller dissenters could not show contemporary evidence for such an absurdly narrow reading, and they had to ignore evidence from the earliest state court cases on the right to bear arms.
    .
    Your take on the grammar of the second amendment is flawed to say the least. The dependent clause provides a rationale for the non-infringement of the right guaranteed, but the dependent clause does not modify the subject of the main clause, that is simply not the function of absolute construction.

  4. J Daniel Valencia | September 13, 2015 at 8:40 am | Reply

    Thank you Vivian and Cherilyn for your comments.

  5. J Daniel Valencia | September 13, 2015 at 8:45 am | Reply

    Thank you, Michael, for your comment. I’ve been afraid that that I might get the kind of comments that I usually see following articles about gun rights and regulations. You’re comment is civil and thoughtful.

    My intent was, clearly stated, a historical and grammatical analysis. I chose not to include a legal argument because for every decision that ignores the first part of the Second Amendment (Judge Charles Silberman’s determination that the clause prefatory and “constitutional throat clearing” as if it anything with the Bill of Rights was perfunctory), there is another decision that validates that clause (Chief Justice John Marshall who said, “It cannot be presume that any clause in the constitution is intended to be without effect.”) I want to restate an important point. All of the arguments that invalidate the “militia clause” assert nothing more cogent than, there’s nothing to see here. They didn’t mean it. It’s window dressing. The first part of the sentence should in no way be considered to have any bearing on the second part of the sentence.

    Besides, people have a tendency to treat judicial decisions and the judges who make them like a five-year old treats friends dependent upon whether or not they share candy. Take this comment to an article about The 9th Circuit’s decision that Gun ownership is NOT an individual right. “This little punk judge thinks he’s going to rule away the right to bear arms against evil government… Let’s just see what the Supreme Court does with it. If they try to nullify the 2nd Amendment, there will be revolution!” I’m sure if he gets the decision he wants, they’re brilliant, and if he doesn’t, they’re punk gun grabbers. That right there is an illustration of why I appreciate comments like yours and have comments set to rely on approval before they’re published.

    Regarding your comment about absolute construction, I’ll repeat Marhall’s sentiment. The idea that they threw that in there for the shits and giggles, that they would not have wanted it to be taken seriously, simply cannot be taken seriously. This is not a strawman argument. Arguments that insist upon the irrelevance of the first half of that sentence imply it had no value to the writers.

    The Second Amendment is intended to be read in its entirety. To disagree with that is to say that it was not meant to be taken as a whole and is not purposeful and the result of considerable debate, history, and reflection.

    Maybe you and the people who misunderstand absolute construction in a linguistic sense are confusing the modern usage with genitive absolutes, which technically do not limit or change the main part of the sentence but add to it. Just because the absolute construction is separate syntactically, doesn’t mean it’s separate linguistically. The “militia clause” is a nominative absolute. A nominative absolute like this one can generally be when “because” and a form of “to be” can included to make it a subordinate clause

    Here are a couple of examples to illustrate. From an article by another English teacher.

    “Their project being complete, the team disbanded.”

    “Stern discipline being called for, the offending student was expelled.”

    All include absolute construction and all modify the second half of the sentence.

    “Because their project was complete, the team disbanded.”

    “Because stern discipline was called for, the offending student was expelled.”

    “Because a well regulated militia is necessary to the security of a free state…”

    All of the sentences include implications.

    The team was formed for the project.
    He wouldn’t have been expelled if they didn’t think it was necessary.
    James Madison wouldn’t have written the Second Amendment if they didn’t feel it was necessary to protect to protect the security of the free state.

    Modifying it with the literal meanings I wrote about in my article:
    The right of the body politic to keep and bear arms shall not be infringed [Why?] because a well-regulated militia is necessary to the security of a free state. The clause modifies and limits the purpose and meaning of the main part.

    There are no reasonable arguments against my assertion. The Commonwealth precursor to this Second Amendment establishes that the right to bear arms was limited rich landowners. Gentry.The published debate leading up to the completion of the amendment talks specifically about the sovereignty of the state. The commas in the amendment itself are purely for pause, for taking a breath. This was the method of the time. Even the Eighteenth Amendment uses commas in this way. “The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged.” Obviously that is a restrictive clause, but it has commas as if it was a nonrestrictive clause. The 18 and older clause is meant to limit the whole statement. They would not include it otherwise.

    Finally, to answer your first question, I thought I had made that point a few times, but to give that horse a few more swift kicks, my main point is that we need to move forward with gun regulation and training. The majority of Americans want it, and they can’t let this narrow and absolutist view of the 2nd amendment empower the loudest and least reasonable voices intending to shut us up.

    This is an article that informed Souter’s opinion.

  6. J Daniel Valencia | September 13, 2015 at 8:48 am | Reply

    I do want to add that no part of my argument or thinking on this is that the Second Amendment limits gun rights or says that guns are only to be used by militias. The Bill of Rights is expressly meant to safeguard particular freedoms. It just doesn’t safeguard limitless, unfettered, individual gun ownership.

  7. Michael Hansberry | September 13, 2015 at 10:10 am | Reply

    J Daniel Valencia,

    Is it really your contention that the dependent clause modifies the subject of the main clause?

    You have not shown that the grammar of the second amendment supports your addition of a qualifier on the right of the people to keep and bear arms. Instead the examples you supply reinforce my point that the dependent clause is meant as a rationale for the non-infringement of the right, it does not create the right, nor does it qualify the subject of the main clause.

    Reading any sentence as it is found in the constitution is not ignoring some part of it, instead it is giving each part the meaning that was intended. But adding a qualifier where none exists would indeed give a meaning that is not supported by the text or grammar of the amendment.

    The standard model is the broadest reading of the second amendment. The limited individual rights interpretation is, not surprisingly, a far more narrow reading.

    While I thank you for responding, I am puzzled why you cannot say what sort of argument (States’ Rights, Collective Rights, or Limited individual Rights theory) you are making regarding the nature of the right protected in the second amendment.

  8. J Daniel Valencia | September 14, 2015 at 1:58 am | Reply

    The militia clause does modify the main part. “Modify” means restrict or add, in this case adding rationale or purpose.

    You say I’ve given no support, but you’ve ignored my support. If the amendment said “John should have a gun so that John can defend the state.” You’re correct to say that the second part doesn’t limit the first part. If John hunts with the gun, it can’t technically be taken away from him because he used it for a purpose other than defending the state. The amendment doesn’t qualify it in that sense. If that was all I was arguing, you’d be right.

    But that’s not what the amendment says, and you’re ignoring my total argument. The Second Amendment doesn’t say “John.” It doens’t say “individual.” It says “the people.” I need both part of the argument to be confronted or it’s not my argument but what you’ve adulterated to make it more convenient to rebut. The people, as established as the body politic in several ways, should not have the right to bear arms infringed (which was more military parlance than Billy and his shotgun) for the purpose of a well-regulated militia for a free state. It is the right of “the people” as a body to secure the free state. An individual acting as an individual can do nothing for the security of the free state. Individual rights are not the concern of the second amendment.

    There are many more books and arguments that support this, the fact that the precursor to the Second Amendment actually limits gun ownership to rich landowners, for example. Commas were used differently at the time and by James Madison. Etc. But an article that tried to be that total would be a book.

    Also, I presented a premise and a historical and grammatical argument. You have ignored much of it and tried to insist that I engage in a separate legal argument that I’ve repeatedly stated is not part of the point or the argument. This is bad argument people engage in to manipulate or out of lack of care. I’ve done it unintentionally myself. Feel free to write a theoretical legal argument. If it’s good, I’ll publish it.

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