23 July, 2012
The Security of a Free State
“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 preceding quotation is what we today know as the Second Amendment. It was among the 19 amendments suggested by James Madison and it was included in the 12 subsequently approved by the Senate and sent to the states for consideration by President Washington in October 1789. Of these 12, ten were ratified and became the “Bill of Rights” we revere today. An eleventh of the 12 was ratified as the 27th Amendment in 1992, more than 200 years after its initial submission.
The grammatical construction of the Second Amendment has provided fertile soil for discussion and dispute over its exact meaning. Due to this obtuse construction, it has been among the most controversial aspects of the constitution. Furthermore, the subject matter inflames passions among gun owners and gun enthusiasts as well as among people who think private ownership of firearms is fraught with problems and dangers.
In light of the latest atrocious example of gun related violence – the Aurora Theater Shootings – let us consider the language of the Second Amendment in order to clarify its intent and import. It seems that there is a purpose implied in the language, which is often overlooked by those arguing for and against “the right of the people to keep and bear arms.” This is the citation of “the security of a free State.” It is possible to see this as the actual objective of the Second Amendment, rather than private ownership of weaponry or the organization and operation of militias. Despite the confusing order of the words, it is clear militias are not advanced as an end in themselves. Additionally, the right to keep and bear arms is not unequivocally asserted as an end in its own right. It seems to be a means of ensuring proper equipment for the well-regulated militias, rather than private arsenals for individuals. Both the private arms and the militias seem to be means to the end of “the security of a free State.”
In 1789, the United States was not a superpower. It was a fledgling nation in a world abounding with hostile powers. Based on their experience during the Revolutionary period, many Americans had an abhorrence of “standing armies.” Nonetheless, they knew Great Britain, Spain, and eventually, France looked upon their nation as a potential conquest. Furthermore, they shared the continent with various Indian [aka Native American] nations that were greater or lesser threats depending on the time and circumstances. Consequently, there was a need to raise and equip a military force that did not in itself seem a threat to the Republic they had just founded and the Revolution they had recently waged.
The answer the Father of the Constitution devised and his contemporaries later ratified was a militia system in which the people took responsibility for the armament for the purpose of achieving and ensuring “the security of a free State.” This solution did not extend a private right, but instilled a civic obligation. Note that the Second Amendment speaks of the “right of the people” not the right of people or of persons. In this wording it echoes the Preamble’s “We the people of the United States.” This is a collective reference, not an individualistic one; it is a civil reference, not a personal one.
Some have used the well-known hostility of this era to standing armies to argue that the Second Amendment was concerned with the security of the individual states and therefore, was intended to provide a basis for armed resistance to the Republic ordained and established by the Constitution. This makes some sense until one thinks about it. James Madison was a nationalist and he was the most effective proponent of the Constitution. Because he was the author of the Second Amendment, it is highly dubious that he planted the seeds of insurgency in the very Constitution he had worked so hard and successfully to create. Madison was a profound political thinker and his perception of the need and prescription of the means for “the security of a free State” reflects this profundity. He gauged the temper of his times and wrote a guarantee of the means to deal with the extant threats in a manner acceptable to his contemporaries.
If, as is contended here, the Second Amendment is aimed at ensuring the security of the Republic launched in 1789, one can be confident that there was no intent to allow a private individual to expend $3,000 on a personal arsenal with no official oversight or safeguards. This is hinted at by the inclusion of the term, well-regulated, as a modifier of militia. Madison clearly was not advocating rogue bands of armed individuals as the guarantors of “the security of a free State.” He was championing organized and responsible corps of citizen soldiers that formed – “a well-regulated militia.”
Madison believed the right and the responsibility for “the security of a free State” rested with “the people.” Consequently, he wanted “the people” to have an unfettered and uncompromised right “to keep and bear arms” so that they could fulfill this crucial responsibility. He was not extolling guns as the playthings of hunters, target shooters, or other enthusiasts. He did not believe in some frenzied frontier where political power came from the barrel of a gun. He thought and asserted that the people, that is, the citizenry had the right and the duty to arm themselves and organize into well-regulated militia corps.
There is nothing in Madison’s amendment that suggests or supports a private individual acquiring an arsenal of arms and ammunition without any notification or oversight whatsoever. As the New York Times reported on 22 July 2012, “With a few keystrokes, the suspect, James E. Holmes, ordered 3,000 rounds of handgun ammunition, 3,000 rounds for an assault rifle and 350 shells for a 12-gauge shotgun — an amount of firepower that costs roughly $3,000 at the online sites — in the four months before the shooting, according to the police. It was pretty much as easy as ordering a book from Amazon.” Whatever else this process may be, it is most emphatically not well-regulated. In fact, it is virtually unregulated. The suspect in the Aurora massacre acted as an individual; he gave no evidence of any intent to perform a civic duty. He was acting for his own private purposes and made only a negative contribution to “the security of a free State.”
If Madison was concerned with the practicalities of assuring “the security of a free State,” when he proposed the Second Amendment, the state he had in mind was the recently ordained and established constitutional Republic. As such, Madison surely wanted to advance the purposes of the Republic he did so much to originate. He would have wanted to enhance the unity, establish justice, ensure tranquility, provide for a common defense, promote the general welfare, and secure the blessings of liberty to the Republic and its citizens. Well-regulated militia units could do all of these things, but heavily armed lone wolves preying on their compatriots would do none of them.
If “the people” have a right to keep and bear arms, then some individual people must do the keeping and the bearing. That seems inarguable. The question is for what purpose and under what conditions. Today, the well-regulated militia takes the form National Guard that traces its history back 375 years to the earliest English colonies in North America. In its current incarnation, the National Guard is a dual state-federal organization For example, following the September 11, 2001, attacks, more than 50,000 Guard members were called up by both their States and the Federal government to provide security at home and combat terrorism abroad. As the foregoing makes evident, the well-regulated militia mentioned in the Second Amendment is a long-established military organization under the provisional control of the state governments and under the ultimate authority of the federal government. People who are members of the National Guard keep and bear arms as part of their service.
Private individuals who own one or many guns are not in that role performing militia duty as contemplated by the Second Amendment or practiced by National Guard members. One has to ask, “Why any private person should own a firearm designed for rapidly firing at human targets from close range?” The extent of the contribution such private individuals who own such weapons make to “the security of a free State” is as dubious as the contribution made by National Guard members is obvious.
The regulation of private gun ownership is feeble as the Aurora massacre once again demonstrates. Nothing in the reported information about the suspect in this mass murder would have prevented or even delayed him in the procurement of his weapons and ammunition. At this time, more than a dozen guns are legally sold every minute of every day. As ABC News reports, “There are almost 300 million privately-owned firearms in this country - that's almost enough to arm every man, woman and child.” While the national murder rate is at a 47 year low, the gun murder rate in the United States is 19.5% or almost 20 times that of the next 22 richest nations combined.
Furthermore, 80% of all gun deaths and 87% of all child gun deaths are Americans. Whatever this situation is, it is ludicrous to purport that it is well-regulated. It is more candid to admit that it is virtually unregulated. This being said, on a worldwide basis, the majority of massacres have been committed with legally obtained firearms. Thus, there are no quick fixes or simple solutions. If we follow the true North Star of the Second Amendment’s objective – the security of a free State – we may be able to make better arrangements than we have achieved thus far.
The furious debate which has raged and continues to rage concerning the Second Amendment seems to be missing the vital point of the purpose for which the amendment was crafted, proposed, and ratified. It is apparent that “the security of” the free State known as the American Republic is neither advanced nor enhanced by the prevailing circumstances and conditions regarding private acquisition and use of firearms and ammunition in contemporary America. Madison surely put great thought into the composition of the Second Amendment; perhaps, we can finally do likewise regarding its meaning and implementation in the twenty-first century. Unfortunately, people such as Rep. Louie Gohmert (R-Texas) who said Friday that the shootings that took place in an Aurora, Colo. movie theater hours earlier were a result of "ongoing attacks on Judeo-Christian beliefs" and “questioned why nobody else in the theater had a gun to take down the shooter,” do not seem up to the thoughtfulness this issue demands. Mr. Gohmert and those who agree with him seem to think the security of a free State would be enhanced if venues were filled with people who could blaze away at a moment’s notice as long as the people firing are true-believing Judeo-Christians. It is good that James Madison has been dead for 211 years if not he might shoot himself or Gohmert.