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The Second Amendment to the United States Constitution of 1789, ratified on December 15, 1791, reads as follows:
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.
In 2008, the US Supreme Court, in District of Columbia v. Heller, held that the Second Amendment allows individual not associated with a militia to keep and bear firearms.
Fine, I have no problem with that. But in light of gun-caused deaths that happen in America several times a day on average, and mass shootings with legally-possessed firearms in places like Columbine High School, Virginia Tech, Chardon High School, the Aurora Mall Theater, and now Sandy Hook Elementary School, I think it’s high time to take a very conservative, strict constructionist approach to the Second Amendment.
When it was ratified, it was literally impossible for an Adam Lantz to go into any place where large numbers of people were gathered and murder dozens of them because semi-automatic and automatic weapons did not exist. The Founding Fathers, in their wisdom, knew only about muzzle-loaded firearms, which a well trained individual can fire about once a minute. A would-be mass murderer with a firearm in 1791 would get off one shot, two max, in any place with a bunch of people before being wrestled to the ground or being knifed or even neutralized with something like a sword.
So, in the spirit of strict constructionism, let’s apply that to the Second Amendment. Individuals can stock up on all the muzzleloaders, crossbows, longbows, swords, pikes, and battle-axes they want, but any weapon more advanced than what was available in 1791 can be banned by local authorities. Furthermore, in keeping with that strict constructionist interpretation, violators can be prosecuted to the fullest extent of the law and sentenced to very lengthy prison terms.
Repeat offenders, at least at first, may unfortunately have to be hanged just to get the point across that We The People are serious about this. Recidivism would thus be low after awhile.
This way, the people’s right to keep and bear arms is NOT infringed, and the people’s right to send their kids to school or to the movies without fear of being mowed down by automatic weapons is likewise not infringed.
What’s so unreasonable about that? I’m sure most of the Founding Fathers would approve.
Cross-posted from Voices on the Square
Photo by Mike_tn under Creative Commons license.
60 Comments
Works for me! You can hunt game with a Kentucky long rifle just fine.
Better yet, how about banning the sale or possession, except under controlled circumstances, of bulletproof vests and body armor to people whose jobs don’t require them? The typical NRA talk that “if only the victims had handguns they could have stopped the shooter” doesn’t work when the shooter’s wearing body armor.
By the way:
Thanks for this, OB. There is a whole range of options between allowing America to be a free-fire zone and total abolition of guns. It’s time we started talking about these options.
I suppose to be consistent that plate armor would be allowed, however, the reason knights stopped using it was that it couldn’t stop a musket ball, so I don’t anticipate seeing that outside of Renaissance festivals.
Exactly. There’s all sorts of options on this issue. Too bad the NRA went to the extreme more than a generation ago. I think they have a role to play. For example, their gun safety courses are top notch.
Why do you think the Founding Fathers would approve? Your plan effectively disarms the general public, which was exactly what they wanted to avoid.
I’m Just Askin’
My dear Barbarian, this is so sane it just might work!
I don’t own any guns, although I have taken the Hunter Safety course to get an FAC (Firearms Acquisition Certificate) here in Canada. I was appalled at the heighth, breadth and depth of bone-headed yahoo-ness among my fellow students and resolved to never, ever be in the any forest or duck-swamp where they might possibly be armed and stupid.
I have been fortunate enough to have taken private instruction in some fairly exotic weapons as well. My reason for this was a case where an airline passenger wrestled the gun away from a hijacker, then pointed it at the hijacker *with the safety still on*, which told the ‘jacker that the guy was clueless and of course he took the weapon back. I do not really expect to ever be in such a situation, but if I were, it would be *so* embarrassing to not even know how the damn things work.
I think that if it all goes pear-shaped (looks pretty likely, actually), some firepower might be a good idea to stave off marauding hungry mobs, if it comes to that. However, I find I am not particularly interested or talented in that direction, it would require lots of ammo and round-the clock vigilance — Not possible, I think. I would v much prefer to have a well-regulated militia of my neighbours who will look after that aspect. Me, I’d be OK loading, I have worked with ball-and-powder. Sometimes it is a great relief to be old enough to be pretty sure that if/when dystopia happens, I should already be safely dead of old age.
Because some of them were reasonable. In any case, it doesn’t really matter anymore, does it? After all, they are long dead. WE are not. I for one would like to keep it that way.
Besides, the Founding Fathers, who were the government, after all, never intended the general public to be as well-armed as they, or the Army or Navy. At least, I don’t see it that way no matter what 18th Century propaganda says. Even then, the general public was never as well-armed as the Army.
Stick to that tired old libertarian and extremist NRA principle, and individuals have a right to possess nuclear, chemical, and biological weapons. IMO, that’s a dangerously insane notion.
How can I stick to an argument I never made? I hope you’re not one of those jerks who starts making bogus accusations against anyone who doesn’t kiss their ass.
You said you were sure most of the Founding Fathers would approve and I asked why: something wrong with that?
I’m Just Askin’
(Sigh). I did not intend to say you were making the libertarian argument. I can see why you thought that. My poor choice of words there. I intended no bogus accusation in my reply, and I’m not looking for anyone to kiss my ass.
My last sentence in the original post was partly sardonic. I really don’t know if they would approve of my idea or not, and I don’t care. But no one can prove they would NOT approve of it in light of what’s happened so often lately, so that makes it a good propaganda gimmick.
I own no guns now, though I have in the past and I grew up with some, mainly shotguns, hunting rifles, and revolvers. I’ve never felt the need to possess a machine gun.
I do know how to use the damned things, and am pretty sure I could get some if I really had to. Maybe I should practice what I’m preaching and go into Civil War re-enacting. It might even be fun :)
The second amendment grants the right to bear arms, not the right to discharge or use those arms in anyway. No need to change a word, just enforce it as written.
the second amendment doesn’t mention ammunition. only ‘arms’
The Second Amendment is glaring evidence that our entire Constitutuion, the oldest on the planet, is not adequate for the current century. Trying to fix it through interpretation isn’t the answer; nor is adoration of the founding fathers.
In all of this gun control talk, (and believe me, I believe we need some very strict regulations), one thing is being missed. That is unless the federal government goes door to door to search and forcibly remove firearms from citizens, (and face it, that ain’t gonna happen), guns are going to be around this society for decades, scores of years, even centuries. Powder is a simple formula and so is reloading spent brass. Anybody with the knowledge and a little bit of skill with their hands can do it. So while we may begin to define the second amendment as to pertain only to those weapons that were around back then, (which is also probably a stretch), that doesn’t address the enormous, colossal number of advanced firearms already out there, the black market and etc. Unfortunately with the amount of guns in our society, right now as I type this, any meaningful and immediate control is impossible, (again, unless you strong arm people and that won’t end well). Like climate change, we should have acted half a century ago and now it’s too late to do anything but hope to limit the damage.
Hey OB ,are you making a case that militias ‘ formation didn’t fear a centralized government that turned on the citizen interests ,as well defined by Jefferson ,and what we have now under corporate-owned governance ?
…any weapon more advanced than what was available in 1791 can be banned…
And yet you have no problem reading the 2d Amendment as if it were not meant to only arm the potential militia members of that era…
So your solution is to ban lead, charcoal, sulfur and potassium nitrate? How about banning the knowledge to make gunpowder? Ammunition is absurdly easy to make and all of the ingredients are common and unregulated. I’m not pro gun! But I am pro reality.
Charcoal must be saved. I refuse to grill with propane…
Australia’s giving it a try, and if anything the Ozzies are more “macho” than we are.
Still, it is true that there’s not much that we can do that would have an immediate and positive effect, and that fact is exactly what the NRA types count on: They like to say “See, New York and Connecticut are gun-grabbing states and they STILL have mass shootings nyah nyah nyah!” while of course, for instance, ignoring the Virginia pipeline that smuggles guns to the Northeast.
The Second Amendment really deals with the state militia and arose out of many of the Founders’ fear that a large standing professional military could become the executioner of any Republic. It was felt that members of a large standing professional military could become more loyal to their commander rather than the citizens they were supposed to defend; they feared a man on horseback, a Caesar or a Napoleon.
It was felt by contrast that a national defense based upon a militia, composed of part-time soldiers, would be more loyal to their neighbors and fellow citizens than their commander. If say their commander ordered them to march on the government, or fire into a crowd, they would refuse such an order. These Founders trusted these more in that sense.
However, there is a problem with this. That is, the militia was supposed to be much of the foundation of the defense of the US. From the start, there were those like Washington and Hamilton who had fought in the Revolution and who saw with their own eyes that unless in the rare case that the militia was well-trained (such as some of the New England militias), they didn’t fight very well (“broke and ran at first shock” was often more like it). Founders like these wanted a more professional force, one better trained. While there grew up a popular mythology of the militia including the sure-shot with the Kentucky rifle, military professionals knew better.
Thus the Constitution was something of a compromise. The states got a guarantee of their own militias via the Second Amendment, but Congress and the Federal government was given the ability to organize and train them (as well as to command them when called up).
The correspondence of the time made scant reference to any individual “right” to own firearms. A bigger issue was the militia’s funding–Congress multiple times had to provide the state militias with weapons (so much for the NRA myth of a firearm over every mantle, eh? In truth weapons were rare and expensive). I admit that in many cases the Founders did imagine that indivdiduals might show up for duty with their own weapons, and some represenatives and the state constitution of Pennsylvania made references of the right of landowners to hunt with their own weapons, but these were of minor concern. The consensus view was that the militia would have to have much of their weapons provided by either the state or Federal government.
Two things later happened: one was the Civil War. By 1862, both North and South were fielding what were essentially professional armies, and commanders and common soldiers on both sides saw, in contrast to the preceeding popular myth, how militarily worthless militia soldiers could be in a fight (my favorite remark was that of hard-bitten Confederate general Jubal Early, who when his Confederate division tangled with some Pennsylvania militias near York, after the militia soldiers broke and ran and burned the bridge over the river behind them, sarcastically laughed “It’s a good thing those boys ran like that else some of them might have gotten *hurt*”).
The other was technology. The militia was, after all, supposed to be a militarily viable force, and as military hardware progressed where it was no longer viable for people to bring their own, in 1903 the Militia Act of 1903 established the National Guard, which is the direct and proper hier to the original militia. Many NRA members and their ilk dispute that because the Guard is government-equipped and organized, but as I hope my preceeding paragraphs have shown, that was largely the case with the original state militias.
The NRA was taken over by movement conservatives (it used to support some gun control laws previous) in the 1960s and has distorted the truth of the history of the 2nd Amendment. It is ironic that the “original intent” for it, the fear of a large professional standing military, is probably enthusiastically endorsed by most of the NRA’s members.
-stewartm
I intended this to be a tongue-in-cheek way to suggest that there are ways to address the American gun problem within the current system. PW got it right away.
That said, I agree with you and have said so before. I think the Constitution of 1789 has outlived its usefulness and needs to be scrapped. For starters, the electoral college, the Senate, and the Presidency itself need to go as far as I’m concerned. There’s more, much more, but that’s a whole new subject.
Yep. It’s a tough problem and I’m afraid there are no simple solutions but one thing is certain: piecemeal state laws are the enemy here. As long as people can move freely across state lines, (and that also isn’t going to stop), federal leadership is needed. The problem isn’t intractable though and we by no means should just throw up our hands and not try to do something but we have to accept that there are some things that aren’t going to happen and first and foremost is that even if we ban guns tomorrow, they aren’t going away anytime soon. If we stopped burning fossil fuel tomorrow the concentrations of CO2 in the atmosphere and the temperatures would continue to climb. The damage is a done deal. Only a time machine could prevent that. All we can do is try to manage it.
?? The early history of firearms was largely about manufacturing ammunition that was less of a threat to the person/people firing the weapon than the people being shot at.
-stewartm
Actually, no. There was an arms/armor race for a while. Plate armor could be marketed as “bulletproof” and was tested by shooting a pistol at it (leaving a little dimple).
Of course, some armor manufacturers cheated. :-P
-stewartm
Unfortunately precedent in US. vs. Miller says weapons used by military are subject to 2nd amendment protection.
Yes stewartm but we don’t have to go through that again, do we? That experimentation is over and we have the optimal recipe written down. We don’t have to re-invent gunpowder. That has already been done. The people who make it don’t have to relearn the formula with every batch.
You have a point.
Margaret, you are once more the voice of reason.
I’d like to add that in the times of the Founding Fathers the general public was, in a sense, the Army. It is only in modern times that we have a standing army that never disbands.
The problem wasn’t the gunpowder part, Bad gunpowder might just flash or not ignite. The problem was the bullets; at best they might not be accurate (most weren’t) and at worst they could have flaws or could be a mismatch for the firearm. Even by the time of the American Revolution, several hundred years after the military application of firearms, our capacity to make ammo was so limited that we were dependent on first the Dutch, and then the French, for the bulk what the Continental Army used; that supply line is an untold story of that war.
I don’t think that was because we lacked blacksmiths per se.
-stewartm
Um. A lot of you are taking this diary entry WAY too seriously and literally. The only really serious points are these:
1. The people who wrote and ratified the Second Amendment had no conception of modern firearms. If a new Constitution is ever written, it will have to take those into account.
2. Lots of Americans treat the Constitution as a kind of Holy Writ and the Founding Fathers as inspired prophetic figures. Which leads to the not-so-serious
3. I thought it would be fun, and maybe thought-provoking, to apply the standards of the time in a strict constructionist way to the Second Amendment.
Really.
Oh, that is an excellent historical analysis, Stewart. I’m a historian by choice. Thank you for taking the time to write it an post it here. I appreciate it.
But it amounts to the same thing. Once again, people have overcome those problems and now we know how to overcome those problems. Why don;t have to start from scratch. Are you suggesting we pass the Forget How to Make Bullets Act? It wasn’t the lack of blacksmiths, it was the lack of knowledge among the blacksmiths. That problem has been solved and while traditional blacksmiths are definitely a dying breed, master machinists are not. My little brother could manufacture a quality firearm, along with ammunition in a few hours by himself. All he would need is somebody with knowledge of making powder. And there are hundreds of thousands, if not millions in both of those groups out there.
It’s cool: you were writing, you were on a roll, you closed with an overly dramatic flourish. No big deal. And it really doesn’t matter because this is just an amusing intellectual exercise. Confiscate every single firearm in the country today (if you could) and tomorrow thousands will be smuggled across the border. Margaret is right about having to find a way to live with guns.
Your central thesis about there being a range of options between a free fire zone and a gun free zone is spot on and I think the reason we can’t get there is because of extremists on both sides. Fools who want such restrictions that guns are useless anyway like the old DC laws and fools who want a real AK to compensate for their teeny weeny.
Well, there are some who don’t believe that everyone SHOULD have the RIGHT to bear arms. I’m one of them. Of course, I don’t think the United States Senate should exist, either.
I haz bare arms but only in the summer. Too damn cold in the winter.
But up in Alaska you really don’t want bear arms. Just as Sara Palin.
The relevant question is: is making ammunition something that can be done by most people in their own garage over a weekend? Could say, restrictions on buying ammunition be circumvented this way? Given the fact that modern munitions are more high-tech and more precision-grade than their forebearers, I’d answer “no”.
We also know lots of other things. We know how to make computer hard drives, that’s also no secret. That doesn’t mean that the average person has the equipment and expertise to manufacture one himself, even after reading a book or two or three on the topic.
-stewartm
How about we formally declare (the Senate is good at taking up time doing this) Second Amendment Day, on which
Citizens will be encouraged in their right to bear arms – to bear them to the community melting pot, where the mayor will weigh said arms and fork over a suitable emolument, and/or a coin struck for the occasion, or even a revolutionary war facsimile rifle, depending on the number of said contraband forked over, then into the melting pot it goes. And of course, those exchanges will be of most value on the first Second Amendment Day, but the practice will continue until all modern weapons have gone the way of the dodo.
Since we already have a superfluity of memorial days, I propose this be combined with Independence Day and hasten to add that the mayors don’t have to do the actual melting. (I envision that to happen via solar reflectors in a contained environmentally friendly furnace, by experienced operators. ) I’ve already suggested various uses for the metals obtained – no doubt the Australians could tell us of the many rail lines and buses that were built when they did it in the late ’90′s.
I know there are a whole lot of people who do make their own ammunition. I know several of them. The cartridges would be the hardest but brass is durable too and can be collected and reloaded over and over. I can reload spent brass and I have. With a recipe and a bit of practice, I could mix powder. I can order bullet molds on the internet all day long and in lieu of that, I can make my own castings from an already manufactured bullet. But if you are determined to pretend those skills don’t exist, then my continuing this conversation boots nothing.
Goodnight to you.
“Better yet, how about banning the sale or possession, except under controlled circumstances, of bulletproof vests and body armor to people whose jobs don’t require them?”
Yes!!
When the Patriot Act was thumbing its nose at the First Amendment, we were told “the Constitution is not a suicide pact.” And yet, when the Second Amendment is discussed, the Constitution is very much a suicide pact. The First Amendment is phrased as an absolute. We treat as conditional. The Second is phrased conditionally. We treat it as an absolute.
(from a commenter at Charlie Pierce’s Esquire politics blog)
Hear, hear!
So, how does this explain the dramatic difference in gun violence between this country and say, Australia? I’m sure Australians know how to make their own bullets, too. Controlling access to guns is key. We do it for other things we consider detrimental to society’s well being? How is it that guns have become sacred cows?
Stewart, I think history shows that people are really good at finding ways to make weapons bu6t so what if you’re right? We’re Americans and if we don’t want to do something we’ll pay some foreigner to do it for us. Truck loads of weapons will come across both borders every day and they’ll be sold to people like Adam Lantz, not Mrs. Lantz.
Guns are no sacred cows: they ARE controlled. And that control is imperfect, surprise, surprise, surprise.
Australia is a shitty example: some stats say their gun ban accomplished zero, some say it made things worse.
Great post, thank you.
Recommended (FDL)
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From the standpoint of risk, vehicles are roughly similar, they can do a lot of lethal damage. To remedy that we have licensing and insurance to regulate and share the risk.
If we forced owners of non-hunting firearms to apply for insurance, I think it would make a lot of sense. It distributes the risk. Credit ratings would be one factor in determining the price of the premium.
The other side of the equation is keeping firearms out of the hands of the mentally unstable. It’s that ground where the NRA, a wholly owned subsidiary of gun and ammo manufacturers is really vulnerable.
I have known hunters who make their own shot gun shells.
My guess is the profit margin for gun manufacturers is in the ammo, so they will give away the rifle/hand gun at cost. They may not honor the warranty on their firearm if folks do not use their ammo.
But, I live in a tough ‘hood and need my own nuclear deterrent. In fact, the world would be a much safer place if everyone had their own.
Oh, re-enacting is totally fun, and the best part is that *nobody dies*. I have had great times with paintball, all consenting adults, and *nobody dies*. I got whacked a couple of times, at that place you retired to Valhalla (the canteen) and drank coffee and hot cider and ate chili and talked to your ‘enemies’ about how you almost had them until the next round. It was tons of fun, and *nobody died*. I have enjoyed shooting, ‘violent’ video games, re-enactment and paintball, too. I don’t agree w/the no wartoys crowd (I think it is a stage that has to be worked through, not repressed), and I am a *huge* proponent of catharsis. War-like play, in which *nobody dies*.
Real war is just evil. Real people die.
I don’t think Stewart is saying the skills, equipment, and knowledge to make one’s own ammunition does not exist. I do think he means that the ability to make the large quantities of precision ammo for finely machined weapons such as assault rifles on an individual basis is very limited.
One needs a factory, or at least a full scale machine shop, to do that. It’s a lot more complicated than, say, a meth lab. I’ve known people who make their own ammo, too, but none of them mass-produced ammo for a 9 mm Glock, much less a Bushmaster.
I live in a tough ‘hood, too! Funny that there have never been any mass school shootings here. For some reason, they all tend to take place out in white flight land.
Michael Moore had a great cartoon video on that subject in “Bowling for Columbine.”
I am aware but not familiar with the “reloading”process, but these are using purchased accessories and spent cartridges, plus specialized equipment:
https://en.wikipedia.org/wiki/Handloading
Note that most of these *buy* their own bullets and powder, though some cast bullets (for low velocity weapons only). And there’s considerable expense in at least the set-up and it would seem in time (no matter how many times I read “it’s easy” from devotees I’m looking at this and saying “it’s still far easier to run down to the store and BUY the ammo”.
I was thinking more on the lines of “start from scratch”. Make everything yourself, not buying powder or bullets or re-using cartridges or anything. That’s a harder proposition. You say “it’s been worked out” but a lot of this “worked out” still involves using other peoples’ technology, not your own.
At the very least a restriction on ammo sales would deter a *lot* of people; I really don’t see ammo manufacture catching on.
-stewartm
And where are my manners? Thanks for adding the picture, Mike.
If you’re gonna kill you’re gonna kill.If it’s not a gun it would be a car,a knife a brick or a stick. What if he would have killed them young students with a car. Do we ban cars then? Unfortunately,there is always gonna be people with a few screws loose.How do you fix that? You can’t!!
As I wrote on another thread, now that President Obama is in his second term and has nothing to lose politically, he should propose an outright repeal of the Second Amendment and put the weight of his office behind it. Then the pro-gun lobby might be forced to make a meaningful compromise.
Why should we consider any of the Bill of Rights valid any more? The ninth and tenth amendments were struck down by the Supreme Court in 2005 in Gonzales v. Raich.
http://en.wikipedia.org/wiki/Gonzales_v._Raich
In that decision, all four “liberal” members were joined by conservatives Kennedy and Scalia in the 6-3 majority (Thomas, O’Conner and Rehnquist opposed) to rule, in effect, that the commerce clause superseded the rest of the constitution and gave the federal government the power to regulate all human behavior under the premise that any such behavior could potentially affect interstate commerce, even if the behavior did not involve any commercial transaction. No, I am not exaggerating. You have no rights.
As an addendum to my post #57: You have no constitutional rights. You can only do what you are allowed or can impose and defend.
Anti-depressants may have something to do with it as well.
http://www.ssristories.com/index.php?p=school
Did you even read the diary entry? A brick, or a stick, or a car can kill only a very limited number of people before others can intervene. Automatic weapons can kill far more.
Your comment is typical of the NRA propaganda to which I’ve been exposed for most of my life. It was bullshit then. And it’s bullshit now. Besides, I didn’t even sardonically call for the banning of all firearms.
Get real. Stop insulting my intelligence or that of the other posters on this thread.