The Second Amendment

With all the recent attention to the second amendment (due to the various highly visible shooting attacks), I want to post an essay that I’ve been writing for the past 10+ years on my thoughts about the right to bear arms.

As with all my political beliefs, I’m very much driven by the need to secure our rights. Interestingly enough, as I wrote this essay, my thoughts about what exactly my rights are changed quite a bit… and that’s a good thing. I don’t clam that the proposals I make are necessarily perfect (or even that they would work)… but they are things that I think are steps in the right direction.

Anyway, without further ado, here are my 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.

When discussing the bill of rights, the second amendment is a very special case. The bill of rights was added in order to protect certain rights which were deemed absolutely vital by the founding fathers.

Most of the amendments continue to preserve those rights (or at least they do when they are correctly enforced). The amendments protecting the rights to freedom of religion, freedom of speech, or freedom from illegal search and seizure continue to function in their current form.

The second amendment however is different from all other amendments for two reasons. Due to circumstances beyond the abilities of the writers to predict, it is no longer capable of securing the rights for which it was initially intended. To add to the complexity, the right to bear arms has actually taken on two different meanings, both of which are important, which have different, and even contradictory requirements.

As such, preserving the second amendment in it’s original context will not serve the purpose for which it was intended. If your purpose is to secure our rights (which WAS the fundamental purpose of the people who wrote the amendment, and is my purpose as well), it is not sufficient merely to understand the amendment. It will also require that changes be made.

In order to understand this, we have to look at the various ways in which our unalienable rights might be threatened in a way in which arms might be used to secure the rights. Obviously, this refers to a situation where an armed or violent threat is made against our rights. There are three general sources from which those threats to our Life and Liberty might come that the second amendment might address:

Threats from other individuals
Threats from other nations
Threats from our own government

THREATS FROM OTHER INDIVIDUALS

Our rights are often threatened by other individuals. This might include theft of property, threat to our life, or some other form of infringement. In all cases, we have the right to protect ourselves from those threats.

It is fortunate that we have a police force. With respect to protecting our rights, the police force serves two important purposes. The first is that it deters these crimes (infringements on our rights) from occurring in the first place.

It is certain that the presence of a police force does tend to deter some crimes from being committed; probably the majority of them. Although it is impossible to determine exactly how many crimes would have been committed if no police force existed, I’m positive that the number would be far greater than in the current state. However, no matter how visible the police force is, it doesn’t deter 100% of the crimes.

The second purpose for having a police force is to catch someone who has committed a crime. If you look at the crimes that are actually committed, in almost every case, the police only become involved AFTER the crime was committed, and as a result, the victim of the crime has already had their rights infringed on. It is important to use other means, where available, to secure the rights of the potential victims of these crime which would be committed, even in the presence of the police force. So, having a police force is necessary in securing our rights, but it is not sufficient, and other means must be available to every individual.

One of the means available is the right to be armed. Although this means may not be effective in all cases, it is certainly effective in some situations. As such, the right to bear arms must be preserved, and even ‘optimized’. In other words, the goal should be to preserve the right to bear arms in such a way that it optimizes the likelihood that the arms will be capable of being used to protect the rights of the potential victim.

The very atmosphere of firearms anywhere and everywhere restrains evil interference – they deserve a place of honor with all that’s good. — George Washington

For the first time, a civilized nation has full gun registration! Our streets will be safer, our police more efficient and the world will follow our lead into the future! — Adolph Hitler, 1935

It should be noted that the second amendment was not written with the intent to preserve our rights to bear arms in order to protect ourselves from criminals. The original intent was to protect ourselves against other nations and our own government (which will be discussed below).

It is unfortunate that this amendment does not directly address this right, as it is equally important to protect our rights against threats, whether it be at an individual level or a nation wide level. It might be that the founding fathers recognized that securing the right to bear arms for the intent to secure our rights against a military attack would also protect our rights at the individual level, but it is unfortunate that the amendment was not worded in such a way as to make that clear.

There is one other difficulty which arrives in determining the meaning of this amendment respect to personal protection. When the amendment was written, the weapons that might be borne were extremely limited, and any weapon which might be used to defend yourself against a military might equally well protect you personally against some form of personal attack. In essence, the right to secure yourselves against personal attack and the right to secure yourselves against military attack had the same requirements, both of which could be met by allowing personal ownership and bearing of weapons.

This is no longer the case though. With respect to personal protection, there are some legitimate limits on the right to bear arms. As with all rights, your right ends where it begins to infringe on someone else’s, so it is critical that one person’s right to bear arms not infringe on another’s right to life.

For example, a person has the right to bear arms in order to protect their life, but it would not be appropriate for that to include a grenade as it would be virtually impossible to use such a weapon in a way which did not endanger the life of other innocent individuals. Similarly, it would not be appropriate to use a machine gun for self-defense in a public area… there is too much danger that someone other than the criminal would be hurt. Although it is important that an individual be able to secure their right to Life by bearing arms, it must be done in a way that does not infringe on other individuals rights to secure theirs.

In order to maintain this balance, it is not at all inappropriate to restrict some sorts of weapons from being used in some environments. Nor is it inappropriate to require some form of training before a weapon can be born. Provided these restrictions are enforced in a way that does not infringe on a person’s right to protect his life, they are legitimate.

THREATS FROM OTHER NATIONS AND OUR OWN GOVERNMENT

As proposed and written, the second amendment is primarily directed against threats from nations (ours or some other nation). When the Declaration of Independence was written, only a few years earlier, one of the fundamental rights listed was:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

It was this very right that the colonists had just exercised when they revolted against England and fought for their independence. As the war progressed, official armies were raised, and government supplied weapons were used by some, but at the beginning, it was common citizens using weapons that they owned that started the fight.

Realizing that this revolt could never have occurred without privately owned weapons, the second amendment was added to the bill of rights, and was given higher precedence over all other amendments except for the first. The simple fact that it was placed second underscores how strongly the founders felt about this right.

The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing. (Hitler’s Table Talk, 1941-1944: Secret Conversations, Part Three)

Among the many misdeeds of the British rule in India, history will look upon the act of depriving a whole nation of arms, as the blackest. — Mahatma Gandhi

The second amendment was proposed and debated by Congress in 1789 to become part of the constitution. A summary of this is available here.

The founding fathers recognized the need for a military that could be used, at the direction of the president (who would act as commander as specified in the Constitution) to secure this country from a foreign invader.

However, they also recognized the danger of having a standing (or permanent) federal military. Much of the discussion was centered around the fact that a standing federal military could all too easily be employed by the government to usurp the rights of the people. They had just experienced this threat first hand by the British military.

Their solution to this was to propose that the states would maintain militias which would NOT be subject to federal direction. People would be trained to use their weapons, and in time of war, these militias could be drawn on to form a military to defend the country.

The truth is that all men having power ought to be mistrusted. — James Madison

A free people ought not only to be armed but disciplined; to which end a uniform and well digested plan is requisite: And their safety and interest require that they should promote such manufactories, as tend to render them independent on others, for essential, particularly for military supplies. (George Washington’s First Annual Message to Congress; January 8, 1790)

It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. (James Madison, The Federalist #46

None but an armed nation can dispense with a standing army. To keep ours armed and disciplined, is, therefore, at all times, important, but especially so at a moment when rights the most essential to our welfare have been violated. (Thomas Jefferson to the state governors, 1803)

Standing armies [are] inconsistent with [a people’s] freedom and subversive of their quiet. (Thomas Jefferson; Reply to Lord North’s Proposition, 1775)

Bonaparte… transferred the destinies of the republic from the civil to the military arm. Some will use this as a lesson against the practicability of republican government. I read it as a lesson against the danger of standing armies. (Thomas Jefferson; Letter to Samuel Adams, 1800)

The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so. (Thomas Jefferson; Letter to Thomas Cooper, 1814)

So, the second amendment solved two threats at once… it provided the means to create an army, as needed, to secure the country against an armed invasion, and it (in theory) limited the need for a standing army which could be a threat against our rights from our own government. Also, though not directly addressed, the threat from other individuals was dealt with because you had armed citizens trained in the use of those weapons.

Unfortunately, two things have occurred. First, a standing army has been kept, almost from the beginning while at the same time, state run militias have all but disappeared. Second, technological advancement has made it nearly impossible NOT to have a standing army running on government supplied weapons, instead of personally supplied ones.

It is important to realize how the changes due to technological advancement affect this problem. First, it is no longer possible to rely on personally owned weapons. Even if absolutely no restrictions were placed on ownership of weapons, the economic reality is that ownership of fighter jets, aircraft carriers, tanks, and other such weapons is not feasible. Since other countries have governments that provide these weapons to their military, we must do the same if we want to have a military capable of protecting this nation. Also, the training necessary to use these weapons requires a commitment of time that cannot be done using training methods similar to the national guard. Only a full-time member of the military will be able to learn to fly a modern fighter jet, or run a battleship, or drive a tank.

A second part of the problem is that securing the right to protect ourselves against other individuals is no longer solved by securing our right to protect ourselves against threats from our government or other nations. Protecting ourselves against a government military (whether ours or another nations) means providing extremely powerful weapons to people, but at the same time, those same weapons are completely unsuitable to be used for personal protection, and in many cases would actually serve to put others at increased risk.

So the solution proposed by the founding fathers will no longer work. If we wish to continue to secure our rights, a new solution is necessary, and the second amendment will need to be modified to support that solution.

MY GOAL

My goal is to formulate an amendment which would replace the current second amendment that would better secure the rights of the citizens for which it was originally written in today’s environment.

It is critical to maintain as many of the checks listed in the Constitution as possible. Further weakening of this check due to political actions (as opposed to the unavoidable advancement of technology) must be curtailed.

It is critical to restore other checks on the power of the government that have been eroded over time. Since the second amendment check has unavoidably weakened, others must be strengthened to maintain the proper balance of power. This might mean adding additional checks to the Constitution that could be used by the citizens to limit the power of the government.

It is critical to place checks on the military. Since there is no way to arm the civilian populace on the same level of the military, and since it is no longer possible to NOT have a standing army, it is important to reduce the ability of the military to be used against the populace.

The Constitution currently includes the following powers:

The Congress shall have Power…

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
(Constitution, Article I, Section 8)

No State shall, without the Consent of Congress, … keep Troops, or Ships of War in time of Peace, … or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
(Constitution, Article I, Section 10)

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
(Constitution, Article II, Section 2)

In addition, as already mentioned, the second amendment was written to allow for the following:

The states would train militias consisting of the citizens of that state. Those militias could be called on to defend the country.
A standing army would not be maintained which could be used against the citizens of the United States.

With all this in mind, I propose the changes listed below.

RESTORE THE STATES ROLE IN THE MILITARY

The current military consists of several branches (US Army, US Navy, etc.), all trained and regulated by the federal government, and commanded by the president. The state military forces (the national guard) are (in strictly military terms) a negligible force when compared to the federal military.

I propose that that the state militias be restored as the primary military force of the United States, and the bulk of the maintenance of each branch of the military would be assigned to the states. Because of the requirements for maintaining a modern branch of the military, it’s not practical that every state maintain all of the branches individually. To be practical, I would propose that each branch of the military be maintained by no fewer than three states, and up to around 25% of the total states.

So between 3 and 15 states would maintain army units, another 3 to 15 states would maintain navy units, etc. The militia would answer to the governor of that state, NOT the President of the United States.

All federal training military installations would be turned over to the states. The federal budget that covers maintenance of these units would be given to the states and the states would be responsible for training and maintaining these militias. Most of the military forces would be assigned to one of the state militias.

A very limited standing federal military, primarily limited to the highly technical fields (air force and navy) would be kept, and who’s primary objective would be to form the ‘glue’ that would bind the various state militia groups together in the event of a war. The less technical military positions (such as army and marines forces) would be kept almost exclusively at the state level.

REGULATION OF THE STATE MILITIAS BY THE STATES WITH CIVIL OVERSIGHT

Regulation of the state militias must be done by the states, NOT the federal government, but it should be done in a uniform way. In time of war, the only way that the state militias will be capable of being united quickly into a strong federal military is if the training and regulation of the militias be fairly similar.

As such, regulations and procedures still have to be set at a national level. One way would be to designate some states as oversight or regulatory states. When dividing up the forces among the states, leave at least 20% of the states without state militias. These states would form a regulatory and oversight committee. Representatives from those states (selected by the state legislature or the governor) would be members of that committee.

The committee would be responsible for assigning rules and regulations over the state militias. In addition, they would be responsible for oversight of the different state militias to make sure that they were conforming to the rules.

The committee would also have representation from non-military, non-government groups, including education groups, psychiatric and medical groups, human rights organizations, etc. These groups would provide suggestions, and perhaps have some say in the regulation and oversight of the state militias.

The supremacy of the civil over the military authority I deem [one of] the essential principles of our Government, and consequently[one of] those which ought to shape its administration. (Thomas Jefferson; 1st Inaugural speech, 1801)

RESTRICT THE FEDERAL GOVERNMENT’S POWER OVER THE MILITARY

Additional restrictions need to be placed, or enforced, on the federal government’s use of the military.

The first would be that the president could only deploy troops in time of war. During the history of the United States, the Congress has officially declared war only 5 times: the war of 1812 (in 1812), the Mexican-American war (in 1846), the Spanish-American war (in 1898), and in World War I (1917) and World War II (1941). All other uses of the military have been at the direction of the president without authorization of the congress.

This practice absolutely has to stop. I am not at all opposed to the use of the military to protect this country, but we need to be much more selective in it’s use. We are in a state where we are continually at war, and it is draining the resources of this country.

Our duty is… to act upon things as they are and to make a reasonable provision for whatever they may be. Were armies to be raised whenever a speck of war is visible in our horizon, we never should have been without them. Our resources would have been exhausted on dangers which have never happened instead of being reserved for what is really to take place. (Thomas Jefferson; 6th Annual State of Nation, 1806)

No nation could preserve its freedom in the midst of continual warfare. (James Madison; Political Observations, Apr 20, 1795)

Other means are available, and should be used in most situations. If other means fail, and military force is called for, then it should be with the support of the country that it serves… and this means that it’s use should be sanctioned and defined by a declaration of war.

Another useful check on this would be a limit (of perhaps two years) on any declared war. After two years, the federal military would be disbanded and returned to the states unless the congress acts to officially extend the year another two years.

One further check that was included in the original constitution, but which has been lost, is a check by the states on the ability to declare war.

Initially, Congress was composed of two groups: the House which consisted of representatives elected by the people, and the Senate which consisted of representatives appointed by the state legislatures. In other words, the States had a significant say in whether or not war was declared, and, since the senators were appointed by the states, they could act in ways that were not dependent on popular support by the people.

With the passing of the 17th amendment, which stated that senators would be elected by popular vote, the states lost their voice in the federal government, and the senate and the house became two groups elected in exactly the same way. As it now stands, it is not really necessary to have both groups… they are elected in the same way, so having two groups merely adds a level of bureaucracy to the government.

If the states are in charge of the militias of this country, it is critical that they have a say in the declaration of war. Since, in times of war, the federal government will be assuming control of the military, having the states agree in the declaration has a huge impact on things. Instead of the president seizing control of the states militias, they (by declaring war) are granting control of those militias to the federal government.

An immediate repeal of the 17th amendment would restore the state’s voice in the federal government. That, when coupled with the transfer of most of the defense budget to the states, would quickly restore the states to their original power.

Once that was done, and the senate was restored to it’s original purpose, regulation of the state militias could be handled, at least in part, by the senate. Oversight would still rest with the committee formed by the states without any militias.

As already mentioned, the President could only deploy federal troops, or state militias that had been called into the federal military due to a declared war. The Federal military would NOT be involved in any recruitment or draft. If such things were necessary, it would have to be done at the state level, under the direction of the oversight committee.

Also, with respect to the standing federal military, all members should be recruited only from the state militias, not directly from the citizens of the country.

FURTHER SEPARATION OF POWERS OF FEDERAL AND STATE GOVERNMENTS

A critical check that has been eroded is the loss of power at the state level and the gain at the federal level.

Although not directly related, I feel that this check must be restored so that the transfer of military force from the federal to the state level is meaningful in terms of restoring a check.

So I would propose the following additional changes to enforce the separation of power.

1) I would place a restriction that someone who had served as an appointed state senator could not serve as a member of the House or the President or Vice President. Since I firmly believe that politicians want to preserve power for themselves, by restricting them from transferring from state politics to federal politics will help to maintain each group fighting to preserve their separate powers.

2) I would place term limits on the House and President, but not necessarily on the Senate.

REORGANIZATION OF THE MILITARY

As part of the reorganization of the military, I would recognize four branches:

The army would include all land based forces (including soldiers, tanks, etc.).

The navy would include all water based forces (including the marines).

The air force would include all air based forces.

The guard would be for all local defense. This would include the coast guard and the national guard.

The main three (army, navy, and air force) would be treated quite differently than the guard.

As described above, the main three would be divided among the states. All states which did not support one of the three main types of units would be members of the oversight group.

Training conducted by the main three would only be available to citizens who joined those forces. These forces are the ones that would be called up in time of war to form the federal military.

The guard is different. Every state will have a guard. The guard will consist of a standing group (who are full-time members of the guard) and part-time members.

The guard will not be called up during a war to join the federal military. They may be called up in times of disaster to form local security, defense, or service. This will always be done under the direction of the state, NOT the federal government.

The guard is the only branch that will never be directed by the federal government, and the only branch that can be used for local defense. None of the three main branches (at either the state or federal level) can be used in an actual military capacity on US soil except in the case of an actual military invasion.

The guard also perform another important function. They will be used to train ALL eligible citizens in the use of weapons upon request, and this is covered below.

TRAINING OF NON-MILITARY CITIZENS

Since the ability to protect your rights is an unalienable right, and one which must be secured, the state guard units will serve one non-military function.

The guard will be available to train any eligible citizen (defined below) in the use of weapons for the intent of self defense, and the defense of others. Training will be available for both basic and more advanced weapons.

Basic training will be in the use of standard weapons (handguns, shotguns, and hunting rifles). This training will be free of charge, and anyone who passes the training can purchase those types of weapons.

Advanced training will be in the use of non-standard weapons (assault rifles, automatic weapons, etc.) which are primarily thought of as military weapons, but which are available to non-military people. Advanced training will be at minimal cost, but will be more extensive, and include a greater degree of psychiatric screening. People who pass this training will also be able to purchase those types of weapons.

A certain number of people will not be eligible for guard training, and without guard training, some (all?) types of weapons will not be legal to purchase.

Citizens who have committed a violent crime will not be eligible for guard training. Eligibility may be restored automatically after a certain amount of time, or upon appeal to a court.

Psychiatric screening will also be done, especially for the training and purchase of advanced weapons.

Screening will be done by a group that does NOT answer to the guard, or any other military group.

One important restriction will be that people may only be screened out for conditions which are currently recognized by the medical community, and which are treated by both government health care agencies AND insurance companies as treatable conditions. In other words, a person cannot be screened out for a condition which no government health agency will treat, or which is not covered by health insurance companies. In addition, conditions have to be specified (which can be reasonably met) where eligibility can be gained. One of the conditions may mean periodic screening checkups.

This training will allow people to have access to the guns that they need for personal protection, along with proper training in their use, while still placing reasonable restrictions on their use in order to protect the lives of other innocent people.

MANDATORY TRAINING?

One question which I periodically revisit is the question of whether gun ownership and training should be mandatory.

I’m sure that many people immediately reject such a notion… and I’m not convinced that it’s a good idea, but I’d be more in favor of that legislation than on laws that infringe on the right to bear arms.

Our rights must be secured. Our right to a government that derives it’s power from the people is a basis for the fact that we elect officials through voting. It is critical that people exercise their right to vote.

Likewise, it is critical that people exercise their right to bear arms. We risk losing any right that is not secured and exercised!

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state. (Thomas Jefferson; unknown source)

Even so, I don’t think that it should be a crime not to own a gun (or not to vote)… so at this point, I don’t feel gun ownership should be mandatory.

I DO feel though that you are not securing a vital individual right if you do not own a gun!

A NEW AMENDMENT (OR AMENDMENTS)

I haven’t actually come up with an amendment I like. At some point I’m going to try to do so, but I want it to address some of the points I’ve made.