Tuesday, June 14, 2016

Second Thoughts

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.

The founders of our country included the right to bear arms in the Constitution's Bill of Rights. That 18th century decision has serious, often tragic, and too-frequently horrific repercussions in the world we live in today. It is past time to consider the text, meaning, limitations, and implications of an amendment that, for better and worse, still has its hold on us today.

It was included as a bulwark against tyranny, as protection against internal and external powers that threatened the fledgling Republic. The founders were suspicious of standing armies and, having just won a war with them, felt that the individual states' citizen militias were indeed necessary for the security of a free country.

Beyond authorizing state militias, the amendment states that "the right of the people to keep and and bear arms shall not be infringed". Keep. This implies ownership and that the 2nd amendment confers rights upon individuals as well.

On first consideration, the 2nd amendment appears to be quite broad in scope, and specifies a sincere restriction on governmental gun control. On further inspection, we can see the limitations.

We relied on armed militias at the nation's founding. But things have changed. The stated premise of the amendment is no longer relevant or true. Armed, citizen militias are not necessary to the security of the state. More often they are a threat to it. The US has a substantial and very well equipped standing army that is perfectly capable of protecting the nation and projecting power abroad. The old state militias have been folded into a National Guard that is funded, armed, deployed by, and effectively under the control of the federal government. It is no longer the case that a well regulated militia is necessary to have a free country.

Even if the premise is no longer valid, the amendment can still have force. It's text still holds meaning. It confers a right but, like all Constitutional rights, it is subject to limitation.

There is already a consensus agreement that citizens do not have the right to own any weapons they may desire. Explosives, machine guns, rocket-propelled grenade launchers, and all manner of military equipment, are banned from private ownership. It is illegal to own these things because we recognize that there are obvious, practical limitations to the 2nd amendment. Allowing everyone to access the means of mass murder and wanton destruction is a threat to a free society. It is not required by our constitution. There is ample precedent for restricting weaponry simply because of its lethality and destructive capacity.

There is also precedent for controlling not only what weapons are available, but who may have them. Guns are designed for the purpose of killing other people. We can lawfully attempt to keep them out of the hands of dangerous individuals. Felons, fugitives, and convicted domestic abusers are currently prohibited from owning guns. This list could be expanded. People are rightfully aghast that someone being investigated for terrorism ties can still lawfully purchase a semi-automatic rifle.

The Bill of Rights was intended to place limitations on the powers of the federal government. Typically, its restrictions apply to the states as well. Freedom of speech is protected against actions by both state and federal legislatures. The 2nd amendment is the exception. And the exception is written into the amendment itself. The militias were state entities. The amendment plainly states that they are to be well regulated. It's a straightforward reading of the text to see that it does place limitations on federal regulation of firearms. It is also clear that the amendment confers not only the right, but the obligation of the states to regulate access to weapons. Mental gymnastics are required to read the phrase "well regulated" and conclude that it means unregulated. The 2nd amendment gives states the authority to regulate firearms as they see fit.

The second amendment prohibits the federal government from fully disarming the states and their citizens. It does not prohibit a national ban on military weapons that can be used to commit murder on a massive scale. It does not stop us from enacting stronger background checks and keeping deadly arms out of the hands dangerous and unstable people. It does not mean that the states can not regulate guns to any extent that they desire, including creating a total ban. We can create gun-free states.

Honoring our constitution does not require inaction after each horrific slaughter. It is not true that there is nothing we can do. That is our choice. We can make a different one.