Two Against One
Although the truth may be self-evident that people are endowed with certain inalienable rights, the rights themselves are anything but. They become self-evident after they have been usurped. Getting them back requires articulating what was lost and why having it is necessary to the full expression of human existence.
Once a right has been detected, articulated, acknowledged, and codified into the law of the land, a sticky complication awaits. As the right itself remains as elusive as ever, it is the legal code the government commits itself to defending. Assuming it understands the code. It doesn’t always.
Take, for example, the second amendment to the U.S. Constitution. Although it has remained unchanged all these years, our understanding of it is causing us problems now.
After being passed by Congress on Sept. 21, 1789, the text preserved in the National Archives reads:
“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 text ratified by three-quarters of the states on Dec. 15, 1791, strips out two commas to state the same thing:
“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.”
As the 20th century matured, debate over what right the amendment guaranteed simmered: a collective right to keep firearms for use in a militia? or the right of individuals to keep and bear arms for all lawful purposes? In the 21st century, that debate erupted. Understandably. The text’s two rhetorical illusions baffle us due to our far remove from the times in which it was framed. The first is what that last comma means.
Since two commas were stripped out by 1791, we can assume those commas were either superfluous or misplaced. Take the phrase “a militia, being necessary to the security of a free State ….” It is obvious that the language is stating that a militia is necessary to a state’s security; the comma was removed, an edit we would have made today. The comma in the phrase “…the right to bear Arms, shall not be infringed” appears to be misplaced. No one today would have inserted a comma at that spot; with or without the comma, the meaning of that clause is unambiguous. First entered by a Senate scribe in 1789, that comma disappeared by the time the text was ratified.
And the remaining comma? “A well regulated militia being necessary…, the right of the people to bear arms shall not be infringed.” No one today would flag the comma as superfluous or misplaced; but we are unsure of its function. If judged to forge a causal relationship between clauses – as did the comma between militias and free states – its meaning would read: Because militias are necessary to the preservation of a free state, the people’s right to bear arms must not be infringed. That would in turn mean the second amendment protected the people’s collective right to bear arms to serve in a militia.
Some suggest, vehemently, that the comma sets off not a causal but a prefatory clause that provides just one example of why the right to bear arms must be protected. The conclusion: the amendment guarantees the right of individuals to keep and bear arms for all lawful purposes and any Federal attempt to restrict that possession and use would be a violation of the amendment.
So which is it?
This is where the second rhetorical illusion comes in, that of omission. The amendment focuses on arms for use in a militia. The fight for independence had only recently been won, memories of the conflict were raw, fear of tyranny acute. Should oppression threaten again, it would most likely come from their own young, untried Federal government. The entities authorized to raise militias in times of defense were the states, who relied on mustering fit constituents and their weapons. It was most natural, then, to formally restrict the Federal government from infringing on citizens’ possession of firearms suitable for that purpose.
But shining a protective spotlight on one item in a personal inventory cannot possibly mean that the Federal hand may grope and seize in the shadows at will.
In 1791, the right of the individual to keep and bear arms for general use was not in question. Eighteenth-century settlers in the New World were fully occupied cauterizing a virgin wilderness while expropriating it from the native population. Firearms for farming, hunting, and self-defense were part of the necessary kit. So were horses, chickens, and plowshares. No amendment was considered necessary to protect citizens’ possession of, say, mules. Nor was any thought given to protecting the right of citizens to possess quotidian firearms.
Were a new government to be formed whose people had lately wrested their liberty from a grim religious tyranny, a protection would certainly be encoded saying the people’s right to possess and read the holy books of their chosen religion was not to be infringed. By no means would that be understood to indicate that the government could ban all other books. By the same token, protecting firearms suitable for militias from Federal restrictions did not, by default, make private firearms fair game for confiscation.
As the ninth amendment specifies: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
A malignancy has been spawned by probing the Second Amendment to ferret out a right it does not conceal. It has demonized the gun debate, goading gun advocates into calling any gun regulation an attempt to rob them of their constitutional rights. And it puts the opposition on edge, because denying someone their rights is a charge they do not take lightly. The result has been an ugly shouting match between equally franchised citizens consumed by a misconceived power struggle facing off as threatened belligerents against threatened control freaks. It has also served to eviscerate any gun regulation attempted.
Guns are not just objects, they are lethal weapons. Those who carry them exert unauthorized power that effectively quashes another very important right of all in their midst, the first amendment right of free speech.
Consider a violent dispute that erupts over a bill in a bar after an animated evening of food and drink. One disputant draws a gun and with that act assumes power of judge, jury, and executioner over everyone at the table. The unarmed may cajole, appease, perhaps grovel, but the right of free speech of all but heroes dies in their throats. The outcome at the table will depend entirely on the mercy of the one holding the gun.
Consider the U.S. congressman who met in a diner with a handful of constituents to discuss, among other things, guns. During the course of the discussion, he took out his handgun and placed it on the table to show, he later said, that firearms by themselves are not dangerous – an absurd postulate; they are in demand because they are dangerous, and as soon as one is purchased, it is no longer alone. No one at the meeting said a word about the gun and the discussion seemed to wrap up normally. Afterwards, to the congressman’s astonishment, those present were furious. Some called for his license to be revoked. He hadn’t even pointed the gun at anyone, he said later, defending his action and calling those who objected to his gesture as stooping to a “backhanded tactic” to repeal the second amendment. Demonization at work in every thrust and counterthrust.
Our only way out of this is to accept the fact that U.S. citizens have a preexisting right to own guns for legal purposes, including self-defense. What does not follow is that gun regulation violates the second amendment. With the constitutional question removed from the equation, we can use common sense to establish a gun policy that gun owners would have no justification in perceiving as an attempt to rob them of their “Second.” In fact, to preserve the “First” of others, which untrammeled gun possession eclipses, we would do well to follow the example of our frontier towns of the Wild West. On entering town, those carrying guns left them with the sheriff. After dining, gambling, and settling bills, cowboys and cowgirls, cattle rustlers and drovers, Indian fighters and Indians, picked up their guns at the sheriff’s before riding off into the sunset.
Note: After writing this, I was elated to stumble across the article “In Defense of Looseness” (The New Republic, Aug. 27, 2008) written by Richard Posner, American jurist and leading figure in the field of law. Posner states there, and elsewhere, that the second amendment text creates no right to the private possession of guns for self-defense, defense of property, hunting or any other sport. Please see his article to read his in-depth treatment of the subject.