The Constitutional Question of the Second Amendment

The Constitutional Question of the Second Amendment

 By James C. Whiteside

            Abstract:  The gun lobby has made the Second Amendment its core logic. By manipulating it far beyond what it was meant to mean the gun lobby has made it to appear sacred.  As such the Amendment stands out as part of the great contradiction of the Constitution.  Originally written as the basis for protecting the sovereignty of the People it was altered by the Framers to insure the continued oppression and confinement of the slaves.  The vagueness of the writing has allowed it to be used today as an “iron jacket” of legal means to protect gun industry sales and profits at the risk of random violence throughout the society.

The question is one of several: what did it say, why did the Framers say it, what did they mean, who did it serve and how was it supposed to serve the whole country?  Those questions are, of course, at the core issue of the gun controversy.  Taking a broader view, does the right to possess anything abrogate all other rights of civility, liberty and a peaceful life?  More specifically has gun ownership and possession been made sacrosanct, made sacred by its imputed constitutional character rather than being a genuine function necessary to modern life?  The placement of gun ownership protection within the Constitution rather than simply in statute law enables its continued justification by gun lobbyists as being forever true.   Thus regardless of the foolishness of prescribing practical social relations forever for any people, we remain after 235 years tethered to the stonework of the Framers.  Or do we?

Nothing is more sacred to the gun lobby and its functioning than this amendment.  It is the foundational excuse for the gun lobby’s rabid demand for flooding the citizenry with guns.  But that amendment had specific functions as James Madison began to write what would later be called the Bill of Rights.  After receiving a draft, Patrick Henry assailed Madison over the phrasing of the Second as insufficiently protective of South’s slave patrols.[i]

Madison originally wrote “A well regulated militia being necessary to the security of a free country…”  Henry complained that under Article 1, Section 8 this would allow the new constitutional government to “strip the slave states of their slave–patrol militias.  He knew the majority attitude in the North opposed slavery, and he worried they’d use the Constitution to free the South’s slaves…”[ii]

Madison changed the phrasing from “country” to “state” accepting Henry’s as well as George Mason’s argument that the original phrasing would destroy the militias by “rendering them useless, by disarming them.  Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution]…”[iii]

Thus the original phrasing of and placement in the Constitution was in response to a completely different social order prevailing at the time—a sub-section of society and the nation demanding  protection for its “peculiar institution” of human property in order to continue its elitist life.   Having weapons totally inferior to what exists today and in a society that would lack a professional police institution for 50 years, the Southerners wanted their slave patrols and got them to keep their “property” in bondage.

The amendment written as it is in such an abstruse and stringent fashion allows it to be mangled for most any purpose a casual reader or an interested manipulator might prefer, particularly to fit his (usually his not her) particular obsession or business interest.

It is particularly poignant that gun ownership rights were considered with all other rights as and were thereby blessed by Jefferson in his magnificent text of the Declaration as birth rights.  This is the “iron jacket” R.H. Tawney analyzed in 1920 pointing out that as a theory of birth rights they were taken for granted as the fundamentals of social organization.[iv]  Some effort was made to clarify other amendments by attachment to particular function and usage.   In the case of gun possession function was talked about as self-protection as well as protection from tyrannical governments foreign and domestic.  But such clarification was not placed in the amendment itself quite probably to obscure who was being privileged and whose condition of servitude was being secured.

Thus a privilege was distorted into a birth right.  It was “endorsed indiscriminately as rights which were not accompanied by service as well as rights which were.”   The assumption was “that private property in land, and the private ownership of capital, were natural institutions … [and] social well-being must result from their continued exercise.”[v] In an era when political forces were attacking privilege, the absolute right to property however named or defined, however human or degraded was being written in stone.  It’s “service” such as it was, was to itself for confining a people for exploitation by a privileged sector.

As Tawney put it, practical conduct always “continues to express theory long after it has been discredited in the world of thought.”  Thus we are burdened with absolute gun possession rights frozen in time and law,  ideally suited for manipulation by modern gun manufacturing for a completely different purpose—accumulated profit and unending growth by means of stimulated fear.  “The magnificent formulae in which a society of farmers and master craftsmen enshrined its philosophy of freedom are in danger of becoming fetters used by an Anglo-Saxon business aristocracy to bind insurgent movements...” [vi]

The attempt of the Framers to found a society upon rights from the nature of man himself was to be both a triumph and a limitation.  “It gave (the .) the enthusiasm and infectious power of religion.”[vii] Thereby, whatever effort is made to change the practical rules of ownership or use of guns will be challenged.  When the issues are raised by people aware of and sensitive to the volume of killing made possible by Second Amendment ownership claims, they will be considered an insurgent movement, attempting a sacrilege against the sacred text.

Will it matter whether the changes are realistically proportioned or suitably shaped to protect the populace, whether children, spouses, men or women at home or in the street, or anyone else from random death and injury?  So far it seems unlikely such considerations will be made.  The N.R.A. has made clear that it doesn’t matter if a hundred thousand men, women and children are shot each year, as they are, or that they desire a limited disarmament in the country, which they do,—curtailment of gun possession of any kind for any circumstance, for the N.R.A. and the National Shooting Sports Foundation (NSSF) is unthinkable.  Possession they say is written in stone regardless of usage or purpose and because of its sanctity, the ancient chiseled stone of the amendment must rule in its most simplistic interpretation.   Call it the Guns R Us theory of random death in modern civil society

“The Bill of Rights coheres around a notion of citizenship.   This citizenship derives its meaning from membership (actual or potential) in public associations essential to our democracy: the electorate, the militia, the jury.”[viii]  The larger theme before the Framers was popular sovereignty: rule by the People.   Of course, this “People” were vastly circumscribed at the time to being only white men and only those with sufficient property at that.  Nevertheless the Framers “… recognized an issue of major importance—how to protect the People from foreign despots as well as a self-interested or corrupt “minority government.”  That is, from a self-dealing government.[ix]  This has been judged to be the major reason for the fragmentation of control they designed.  Four instruments of that control were elections, militias, citizen juries[x] and liability of officials in civil cases.[xi]  Each was a check upon an oppression by rulers as Madison indicated.

This was particularly important in regards to the Framers, “Dreading of a permanent professional army under federal control, they entrusted the nation’s security to citizen soldiers—the militia.”   However, “The Framers’ militia consisted of the people at large—all voters—whereas today’s self-styled and self-selected militias set themselves apart from the general citizenry.” [xii]

The analysis here is by Akhil Reed Amar, one of our major constitutional scholars, and Alan Hirsch in For the People where they argue there is both an individual and a collective right to “bear arms.”  Unfortunately, they explain, an excessively narrow viewpoint has been grafted on to the Constitution by both conservatives and by liberals later in history, posing all constitutional rights as individualistic in nature.   For the Framers, rights belong to us less as individuals to be left alone than as public citizens entitled to act together, collectively.  They are inherently public, the right to maintain an effective democracy.[xiii]

A militia as the Framers conceived of it “was not an elite fighting force but the entire citizenry of the time: all able-bodied adult white males.”[xiv]   It was “universal in scope” seen as a political body not merely a military force but “popular sovereignty—applied in the military realm.”[xv]   It was one part of the four-pronged protection in a dual role like that of juries protecting the people from private misconduct (by convicting criminals) while also guarding against an oppressive government through jury nullification and in civil cases by holding corrupt government officials liable.[xvi]

The militia dual role then was one of both protections against foreign tyranny as well as domestic tyranny.   It includes the rights of free speech and assembly to make peaceful protest against oppressive governments.  Both can be regulated and in fact must be regulated to prevent any use of modern armaments such as Uzis and AR-15s in some mass aggression.  Such regulating could include waiting periods, permits, and mandatory education.  Such regulations should preclude any unrestricted access to any kind of firearm for any purpose.  All guns are not created equal.  Concealability may make handguns for instance, weapons of aggression.[xvii]

Since the Second Amendment was conceived as a collective right to forestall a minority government, “The vision animating the amendment was nothing less than popular sovereignty.”  It was “expected to protect against not only foreign enemies, but also a potentially tyrannical federal government.  In short, the right to bear arms was intended to ensure that our government remained in the hands of the People.[xviii]

Certain members of the gun lobby today are heard to say they are holding and stocking guns in preparation to defend themselves against federal attack and seizure.  They mistake their constitutional usage.  Force as they to wish to apply it can only be used in the extreme circumstance where the government has lost all legitimacy and all other civil and political means have been tried.  That is after the government has suspended all “proper forms of constitutional government—free election, open courts, and so on.”[xix]  Antagonistic citizens cannot merely attack government for not being to their liking, that would be treason.

The Second Amendment also rests on a condition of shared commitment to the public good according to Wendy Brown.  She argues the amendment makes no sense in the “brutish world” of today where few citizens have any commitment to anything besides themselves least of all a common good.[xx]   Amar and Hirsch contend in a nuanced disagreement that she is merely making another argument complaining that the American people lack sufficient virtue for true self-government.  They acknowledge the citizenry has not lived up to Thomas Jefferson’s highest hopes but the solution is not to separate ourselves from self-rule but to gather it to us and further construct it.  In their opinion we cannot and “will not build a virtuous citizenry by denying citizens the right to self-government.[xxi]  On the other hand what public good results from 100,000 thousand shootings a year, 30,000 of which result in deaths by suicide or homicide leaving 70,000 citizens with woeful injuries?

How do we reconcile these issues? Second Amendment language further specifies a “well-regulated militia.”  The originating intent was for all persons to be armed in the circumstances of the country in that era being one of a rational fear of slave rebellions and Native-American objections to being obliterated.   Unfortunately, the modern gun lobby objects to any such “well-regulated” limitation.  It claims gun ownership as a birthright without any responsibilities specified or required.  The gun lobby seems to enjoy stimulating the disgruntled, increasing their dissatisfaction while simultaneously increasing gun possession popularity as the solution.  By this means¸ it uses dissatisfaction and alienation in the society to suggest a notion of true patriotism as one of revolt made possible and constitutional by the Second Amendment.  No such notion either fits or is feasible and certainly not countenanced by the constitutional Framers.

The whole gun protection issue as well as other rights were later changed by Reconstruction and the Fourteenth Amendment which allowed for people other than militiamen to use guns to protect themselves.  It included all law-abiding people such as women and blacks.

“It is vital to distinguish between a generally democratic and law-abiding regime, and one that is neither.  Today’s’ extremist groups, including self –styled “militias,” ignore this.  For all the imperfections of American democracy today, elections are essentially free and courts are always open.  Under these circumstances, those who wage war against their government and their countrymen are not following the Declaration of Independence, they are desecrating it.”[xxii]

Amar and Hirsch continue: “Insofar as we lack the armed citizenry envisioned by the Framers, and are experiencing substantial gun violence not envisioned by them we ought to ask whether the benefits of the right to bear arms are overridden by its manifest harm.”[xxiii]

“But if the answer is yes, the best solution would be to repeal (rather than ignore) the Second Amendment.”   This we should not do without at least considering the vision underlying this maligned amendment.  As Elaine Scarry puts it, “the second amendment is a very great amendment, and coming to know it through criminals and the endlessly disputed claims of gun clubs seems the equivalent of our coming to the know the First Amendment only through pornography.”[xxiv]  The need is to understand in its fullness of meaning the needs of the country not merely that beneficial to the arms industry’s profits.

There is a considerable caveat to this reconsideration of the Second Amendment.  The concepts of militias or citizen armies have been twisted and distorted to mean a gun, more than one if possible, in every household isolated from the rest of any common social security.  Even the regular armies and the state national guards have lost all or most of their citizen designation, replaced by volunteers and a professionalized officer corps.  “The final principle, disregarded for far too long, is to reconcile the American military profession to American society. (eio)  If the army of a republic ought to be rooted in society, so too should the officer corps.  In the United States, however, this is not the case.”[xxv]

It seems particularly poignant at the very least that after all the framers work to avoid it, the U.S. today has a permanent, standing, professional army.    So we have handicapped our democracy two ways: accepting a spurious, self-selected citizen armamentarium attempting to create an illusion of protection while isolated in its substance from any public association and a permanent professional officer corps isolated from the citizenry.  This is exactly what George Washington warned against in every particular—“those overgrown military establishments which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty.”[xxvi]

Liberty, someone has pointed out is not keeping a certain kind of man from getting a certain kind of gun.  That’s not liberty at all, that is a society of fear running hard to distance itself from forces distorting its true concepts.  Liberty should be about having a civil society.  We lack that society grievously.  The overpowering, mind numbing question is why?  Did we ever have it?  If so, how did we lose it?

[i] Thom Hartmann.  “The Second Amendment was Ratified to Preserve Slavery.”  Truthout, Jan. 15, 2013.

[ii] Ibid.

[iii] Ibid.

[iv] R.H Tawney.  The Acquisitive Society. Harcourt, Brace and World, 1920, pp. 16-18.

[v] Ibid.

[vi] Ibid at 19.

[vii] Ibid at 15.

[viii] Akhil Reed Amar and Alan Hirsch. For the People. The Free Press, 1998, pg. xii..

[ix] Ibid at xii-xiii & 174.

[x] Ibid at xvii

[xi] Ibid at 174

[xii] Ibid at xiv, page  note.  Also 170.

[xiii] Ibid at xv.

[xiv] Ibid at 170

[xv] Ibid at 171.

[xvi] Ibid at 174

[xvii] Ibid at 179.

[xviii] Ibid at 171.

[xix] Ibid at 176

[xx] Ibid at 177-178, Wendy Brown. “Guns, cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson’s Embarrassing Second Amendment.” 99 Yale Law Journal 61 (1989)

[xxi] Amar and Hirsch, opus  cit. at 177

[xxii] Ibid  at 176 page note.

[xxiii] Ibid at 177.

[xxiv] See Elaine Scarry.  “War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms.” 139 University of Pennsylvania Law Review 1257 (1991); Sanford Levinson, “The Embarrassing Second Amendment,” 99 Yale Law Journal 637 (1989).

[xxv] Andrew J. Bacevich. The New American Militarism. Oxford University Press, 2005,  pp. 221-226.

[xxvi] Ibid at 224.