Some 2nd Amendment musings

OK, a federal appeals court panel in Washington, DC, has made a decision that the 2nd Amendment's right, commonly referred to as "the right to bear arms", means that all individuals have a right to own firearms, in this case, handguns and un-safed shotguns and rifles. If the history of American legal tradition is maintained, this decision, like other similar ones before it, will be overturned. However, as a random philosophizer, I feel compelled to write down some of my reactions to the decision as it stands today.

First, let's get the full text of the 2nd Amendment in front of us:

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.

Much has been written about the strange wording of this amendment. To me, the key has to do with the expression "to bear arms", and also with "to keep arms". "To bear arms" means to act militarily. For example, a nation can bear arms against another nation. It does not mean, as commonly supposed, "to carry a gun", although of course in modern times, using firearms is usually part of bearing arms. You can also see the lexical connection between "military action" and weapons if you look at a word like "army", and reference it to its French source words "armée" (cf. Spanish "armada" for a similar connection).

There is also a more specific meaning of "to keep", basically "to maintain in readiness". Applied to the military domain, the phrase "to keep arms" would mean "to maintain materiel in readiness". Once again, there is a connection between this more specialized meaning and the modern gloss "to own guns", but there is clearly a bit more to "keep" than mere ownership.

The framers, in a stylistically elegant but ultimately misleading turn, put the two phrases "to bear arms" (i.e., to serve militarily) and "to keep arms", (i.e., to maintain military materiel in readiness) together in a single phrase, "to keep and bear arms". However, there was a reason why the two phrases could be joined together in this way, and the clearest source for this is in the 1777 Articles of Confederation, which was the law of the land while the Constitution and the Bill of Rights were in conception. Here is the key extract from Article of Confederation VI:

[E]very State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
This is the very likely source of "well-regulated militia", and it also comports with the "maintain in readiness" meaning of the phrase "to keep arms". To me there is no doubt whatsoever that this foregoing phrase from the Articles is exactly what is being described more concisely and with a different rhetorical purpose in the 2nd Amendment.

As for why "to bear arms" (i.e., to serve militarily) was considered so important, we have to understand that one of the major innovations of the Constitution relative to the Articles, was the centralization of the armed forces under the command of the president. As can be seen in the extract from Article of Confederation VI, the states were to have a much stronger role. In normal circumstances, it was Congress who declared war (Article of Confederation IX):

The United States in Congress assembled shall never engage in a war … unless nine States assent to the same
But the states continued to have an important role (e.g., Article of Confederation VII):
When land forces are raised by any State for the common defense, all officers of or under the rank of colonel, shall be appointed by the legislature of each State respectively, by whom such forces shall be raised, or in such manner as such State shall direct, and all vacancies shall be filled up by the State which first made the appointment.

There is one more very relevant piece to this puzzle: why was the militia considered so important? I believe the answer to this question becomes more clear once we recall that before July 4, 1776, all of the people in the Colonies were British, and so ultimately were their militias. The famous Redcoats were their own national military force, equivalent to the US Army today. The colonial militias, a concept that stems from a similar tradition in England, was primarily a list of able-bodied men who were available to serve militarily (i.e., to bear arms) in case of emergency, along with a few usually wealthy individuals who would contribute supplies and leadership. In some areas, the terminology of "active" versus "inactive" or "reserve" militias was used: active militiamen trained regularly, had their equipment, and so on; inactive militiamen were basically on a list somewhere and wouldn't do anything unless a crisis arrived and they were called up. A pre-revolutionary example was the French and Indian War, in which quite a few colonists served in the militia of their colony, along with militiamen from other colonies and of course officers and men from the regular [British] army. When the Revolution arrived, most (but not all!) of the militiamen in each colony maintained their allegiance to the colony (now "state"), but changed their national allegiance to that of the United States, and the most familiar part of the war was between the same militias that had supported the British military during the French and Indian war, and the regular British army. Once the British gave up and the world recognized that a new nation had been born, much of the credit was given to the state militias.

To be perfectly clear, before the Revolution, we had two independent, allied military forces in the colonies, the regular British forces, loyal to the King, and each colony's militia forces, equally loyal to the King, but also loyal to their colony. If the same injustices and opportunities that triggered the initiation of hostilities had occurred in the absence of an independent militia, there could have been no credible uprising and it is unlikely that the United States would have come into existence, at least not in the 18th Century. But the existing militia, trained and organized during the previous campaign against the French and Indians, supplied enough of a force to get the attention of the entire seaboard, and also of anti-English powers in Europe who seized the opportunity to get in a couple of licks against King George, and the rest is history. So while the militias cannot reasonably be given credit for winning the Revolution alone, it is completely clear that in their absence, it is unlikely that the Revolution would ever have gotten underway.

The Articles of Confederation, which were written while the fighting was still going on, gave a good deal of the military power to the militias, even though they also made allowance for a centrally-controlled national military and naval force. To a large number of Revolutionary War veterans, who were an important block among those voting yea or nay on the federal Constitution, any attempt to eliminate the state militias would have been an absolute deal killer. However, the unwieldiness of the system required by the Articles, based as it was on state militias and a largely state-controlled central military, was one of the primary motivations for the Constitution. This was a difficult proposition: to gut the militia system with one hand, while affirming and guaranteeing its continuation with the other. But in effect, this was what the framers decided to do, and the 2nd Amendment was their most important instrument in assuaging the doubts of the veterans.

I believe that once the context of 1790 is understood vis à vis the military (and especially the militia) role of the states in the Articles of Confederation, compared to the changes proposed in the new constitution, then the strange wording and content of the 2nd Amendment becomes much more clear: it is a guarantee that the state [formerly, colonial] militia system would not be eliminated. It contains phrases lifted right from the Articles of Confederation which were surely chosen to make the connection completely clear between the new, reorganized state militias and the former militias, and it made the promise that this system would continue forever. It even contains a piece of blatant pandering to the former militiamen: the phrase "being necessary to the security of a free state"† was surely designed as a piece of basically meaningless feel-good rhetoric. In any case, it worked. The Constitution was ratified, and the new federal system became the law of the land.

The militias, however, basically withered away in the coming centuries. Even though the US Constitution today gives the state militias the right to wage war (Article I, Section 10)

No State shall, without the Consent of the Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay
it is almost inconceivable that this could happen. The militias have become a source of manpower during natural catastrophes, and an adjunct to the regular military; their status as an independent military force no longer exists.

As the sacredness of an independent, powerful system of state militias has melted away over the years, the meaning of the 2nd Amendment has changed for most people. Since there is no longer a visceral attachment to the idea of a strong, separate militia, it has become very difficult to "get" the original meaning of the 2nd Amendment. Why have such an irrelevancy in the very Bill of Rights? What can it mean?

And a new meaning was invented: "to bear arms" can only mean "to carry a gun", and "to keep arms" can only mean "to own a gun". The part about "shall not be infringed" is clear enough. The part about "well regulated militias", well, that doesn't quite fit, so ignore it. And the new, 20th century version of the 2nd Amendment became "the right of all people to own and to carry as many guns as they like shall not be infringed". And that's the meaning that two out of three judges in the federal appeals court panel have decided on: there need be no connection at all to a militia or the possibility of service in a military force. Instead, everyone has the universal right to own and carry whatever weapons they want, and no law can be passed to limit that right, no matter how many people may be killed due to the absence of the law.

Well I hope sincerely that these two errant judges are slapped down as quickly as possible, and not just in order to save lives. I also think that it's important for Americans to know and to think enough about our own national history to understand why the courts have always insisted on at least a potential connection to militias when considering laws that limit the ownership or use of firearms. Judges Silberman and Griffith (and, sadly, millions of pro-gun zealots) have either not understood or have decided for reasons of their own to deny America's history and traditions.

† There is one other comment I want to add here: if the "free state" phrase is not just feel-good rhetoric, there is another, breath-taking possibility. What if "state" here means literally "State", as in Virginia and New York? This possibility actually has some credibility, given the strong tie of the militias to the individual states, and given the intense paranoia on the part of many Americans around 1790 that the federal system would take all power, not just military power, from the states. This interpretation would make an even stronger tie between the 2nd amendment and the militia clause in the Articles of Confederation, and would vitiate even more strongly the "universal gun ownership" argument. It would also suggest rather strongly that the word "people" as used in the 2nd Amendment refers "potential state militiamen". But I admit that the "State" interpretation may not be justified. Cool, though.

No comments: