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. ~ 2nd Amendment to the US Constitution.
Nothing seems to evoke more passion from either side of the political aisle than the 2nd amendment to the U.S. Constitution. People on the Individual-Right side of the fence often cite the “shall not be infringed” clause, but those who wish to limit or eliminate the individual right to bear arms often cite the “well-regulated militia” clause.
The anti-individual-right argument being that the framers meant for Americans to be able to form militias to protect the people or the country, and those militias would need to be armed. This sentiment has been echoed by such noteworthy Civil Rights leaders as former ACLU head and mathematics professor Ira Glasser, which he discussed at length during the March 2nd, 2018 Comedy Cellar podcast. (click to listen)
Side Note: Don’t be fooled that the podcast is from the Comedy Cellar. Owner Noam Dworman is quite fond of discussing politics, and is incredibly thoughtful, fair, and insightful on the subject.
Oddly, the person who got it right (IMO), contradicting Ira Glasser, was Noam’s co-host, comedian Dan Naturman, who often describes himself as left-leaning. Dan does possess a law degree from Fordham University, and Noam studied law at the University of Pennsylvania, making them the only people trained in law involved in the discussion, not Glasser.
While Noam Dworman tends to seem centerist, he understandably felt the need to defer to Glasser’s judgement, since his work with the ACLU would seem to assert Glasser would be the more knowledgeable person in the room—but on this issue, he just wasn’t.
The argument the anti-individual-right group presents seems pretty sound on the face of it, but there are several flaws with this line of thinking, making it unarguably incorrect.
But let’s break down the flaws of these arguments one by one.
The first issue is that it is entirely contradictory with the rest of the Bill of Rights.
The Bill of Rights was drafted, not as a set of laws for the people to heed, but instead, limits set on government as to how government may restrict the people’s individual rights.
The Bill of Rights Institute writes:
The first 10 amendments to the Constitution make up the Bill of Rights. James Madison wrote the amendments, which list specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties.
So if the 2nd Amendment was drafted to allow the establishment of militias, and was not meant as an individual right, it would be inconsistent with the other nine amendments.
Our founding fathers believed you have inalienable rights by virtue of existing, and they cannot be taken from you. They don’t come from government at all—the founders of our country were very clear on that when they wrote the Declaration of Independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
The Bill of Rights places limits on what government may do, not establishes the formation of government entities. Those things are laid out in the first portion of the Constitution. But it also is written with the intention that the power comes from the people, not government.
For instance, our first amendment states “Congress shall make no law respecting an establishment of religion…” versus something like “You are free to practice any religion of your choosing.”
This pattern is consistent throughout the Bill Of Rights, and while most see both those phrases as essentially the same, there’s an incredibly important distinction. As the Bill of Rights are written, the people have the power and are imposing a limit on the government’s ability to limit their religious freedom. In the second theoretical example, it implies government has the power and is granting religious rights to the people.
So now that we understand the Bill of Rights (it’s in the name, for Pete’s sake) establishes rights of the people, not of government, and thus contradicts the idea that the 2nd amendment was meant to help local militias to form, let’s move on to issue #2.
THE MEANING OF THE WORD MILITIA
The meaning behind the word “militia” in the second amendment.
If we assume the term “militia” refers to local military and police, which are government entities after all; the people arguing the 2nd amendment was set up to allow local governments to establish militias comprised of the people believe our forefathers wrote an amendment that says that government cannot infringe on government’s rights to bear arms. This is not only inconsistent to the rest of the Bill of Rights, which guarantee individual rights, but its redundancy is nonsensical. If government cannot infringe on government’s rights to carry guns, then there would be no reason to even mention it in the first place.
The militia clause does refer to government, but not just local governments, it means any government. It wasn’t a right of the militia, it was a limit on it. This will make more sense as we move on to the next issues.
THE MEANING OF THE WORD REGULATED
The third important issue people get wrong with this, is believing “well-regulated” is synonymous with “well-organized.”
Merriam Webster defines “Regulate” as:
A: to govern or direct according to rule
B: to bring under the control of law or constituted authority
If the people arguing it was meant to set up militias were correct, “well-organized” would have been a more proper wording. But instead, the only logical interpretation was that they meant for the militia (the armed wing of government) to be controlled or regulated. They believed the way you do this, is to prohibit government from disarming the public as the British tried to do before the revolutionary war broke out—arguably the prime motivation for the 2nd amendment in the first place.
WHAT IS BEING PROTECTED?
The last issue with the anti-individual-right argument is what it argues is being protected. The incorrect argument is that it’s protecting a country (state) which is free. But the reality is it is protecting freedom itself, ensuring the state remain free. You’d have to deny nearly all of America’s founding history to believe that freedom wasn’t at the core of everything the founding fathers did. Freedom was always more important in their minds. Far more important than the state.
ANOTHER WAY TO WRITE IT
With all that in mind, let me reword the amendment in the way it was intended using language that is maybe more understandable in today’s vernacular.
In order for the people of the United States to remain free, the militia shall be kept under control by the people of the United States who have the right to keep and bear arms.
This is precisely how the amendment was intended, and the only interpretation of it which cannot be easily challenged.
Click here for several quotes by the founding father’s to bear out this claim. It was painfully obvious that they wanted government to fear the people, as many of them specifically wrote.
They knew government will always be prone to becoming bloated and oppressive. And while a government can pass a million laws, those laws have no teeth if there is no militia to enforce them. So in order to keep that government, specifically its enforcement wing (the militia) well-regulated, the people should be armed as well. This way, the government (and militia) always have some level of fear from the people. It’s the only reason to use the word “regulated” that makes sense.
The United States Supreme Court in 2008 with District of Columbia v. Heller held it is an individual right saying the following:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. (click for entire transcript)
This opinion, being current precedent, effectively settles the argument for now.
IS THIS IDEA OF THE GOVERNMENT FEARING THE PEOPLE EVEN REALISTIC NOW?
Since the United States Military is infinitely more powerful than its armed citizens, many argue the point becomes moot, since we “the people” couldn’t possibly fight them. Which in a narrow scope might seem accurate, but again, if you apply a little skepticism, it isn’t.
While it’s true, the U.S. military’s might is overwhelming—it’s arguably more powerful than nearly all the rest of the world’s military’s combined.
But, they’re still given orders by an elected government. When the military kills the citizens, it usually isn’t well-received by the people who voted for them, threatening their re-electability.
It’s also important to remember ours is a voluntary military comprised of the people, and thus aren’t likely to murder their brothers and sisters for no good cause.
But we actually have evidence it can work. Nevada Rancher Cliven Bundy, and a large group of supporters showed up armed to the teeth to fight the federal government over a land dispute. No shots were fired, perhaps in remembrance of the Waco Texas incident, and the federal government did back down. Those armed citizens, in this modern era with our massive military prowess, did precisely what the 2nd amendment was designed to enable, they fought the law, and the law didn’t win.
So why do gun control advocates believe this is what the 2nd amendment implies? It’s likely a simple case of confirmation bias—a phenomenon whereby someone attempting to prove something they hope to be true/false, eschew interpretations that conflict with their bias and/or accept suspect data that supports their bias, due to an inner desire to substantiate their argument.
We are all prone to do this, and with the exception of devout skeptics like myself, we’ll rarely even know we’re doing it, nor act to correct it.
Some may have come to these beliefs due to their own life experience. For instance, former US representative Gabby Giffords who was brutally shot in 2011 by a crazed killer on an unhinged political shooting spree, or former Reagan White House Press Secretary James Brady who was shot in a failed presidential assassination attempt.
Their lives were forever changed because of gun violence, so it’s quite reasonable to assume they would advocate limiting our right to bear arms. And when people have been forever affected by senseless gun violence, it behooves all of us to respect their trepidation in respect to lax gun laws. We haven’t walked a mile in their shoes.
But apologies to those who wish to limit our rights to bear arms, and believe the “militia” clause supports your argument. If you want to argue against gun rights, using the “militia” argument, it just isn’t consistent with the rest of the Constitution, and you’re unfortunately misinterpreting the clause.