Do Americans have a constitutional right to own assault rifles with magazines that hold 30 rounds of ammunition? This is not a facetious question, nor an easy one, even for us passionate advocates for gun control.
The Second Amendment might be the most problematic because its intent is not clear. “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.” Does this mean that the right to bear arms is a collective right and exists only because the young nation needed militias? In other words, do you have to be in a militia to have guns? Or does it mean that everyone has the right to bear arms?
We know the wildly irresponsible position of the National Rifle Association (NRA): In the wake of Newtown it wants more guns in schools (in the hands of security guards and other “good guys”).
But when you consider that conservatives have been talking for three decades about “strict constructionism” and “original intent” when interpreting the Constitution, you do wonder how they can embrace the NRA’s position. In 1791 there were no Bushmaster AR-15-type assault weapons.
Indeed, context is everything. Everyone had guns back in the Revolutionary era. With the obvious urban exceptions, this was a frontier society, and people used guns to hunt, for protection and, of course, to fight the British. People also used their guns to kill native people, to resist (and shoot at) tax collectors and to rebel against the new federal government. Most notorious were Shays’ Rebellion in 1786 and 1787, against debt collection, and the Whiskey Rebellion in 1794, against taxes on stills, which George Washington ruthlessly suppressed.
The founders had a fear of standing armies, which they saw as potential oppressors of the people. Militias, by contrast, were called forth for specific actions and consisted of citizen soldiers expected to arm themselves and serve when asked. All the states had militias, and all able-bodied men were expected to serve, although some states, like Pennsylvania (think Quakers), exempted the “religiously scrupulous.” Militias were the country’s primary military force, and they used their weapons to revolt against British rule, thus fusing the right to revolution with the right to bear arms.
But prior to the writing of the Constitution and the Bill of Rights, different states had various takes on militias. Virginia stated that people “trained to arms” were necessary to a “well regulated Militia” and emphasized the dangers of standing armies. It also said that the military should always be “under strict subordination to, and governed by, civil power.” Pennsylvania, by contrast, said: “The right of citizens to bear arms in defense of themselves shall not be questioned,” stressing an individual right. And Massachusetts declared: “The people have a right to keep and bear arms for the common defence.” So even then, with widespread gun ownership, there were different emphases on whether the right to bear arms was for individual defense or to protect the state.
Fast forward to today. Few people use muskets, which took a minimum of 15 seconds to reload. Indeed, by the 1840s, when guns had become more deadly, various states enacted laws to control concealed weapons. Given the revolution in gun technology, banning assault weapons should please even the strictest constructionist. We also have a standing army. Groups called “militias” tend to be comprised of anti-government, outlaw types. And wouldn’t a “well regulated Militia” entail background checks?
Banning assault weapons, enforcing background checks and the like are all good and important priorities. But I think progressives should be more daring on this issue. 2013 bears little resemblance to 1791—for better or worse, we count on police protection from violence and we’re not as quick to armed revolt. The 222-year-old Second Amendment, borne of a frontier life and a revolution, is utterly anachronistic. It should be repealed.
How’s that for an opening gambit? The slaughter of innocent Americans has to stop, and I don’t believe George Washington or Thomas Jefferson—both avid gun collectors, but neither political extremists—would countenance the recent unrelenting carnage.
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