Of all the Constitutional debates to be had in modern America, there is very possibly none more given to incoherent statements than those surrounding the Second Amendment. It is true that big government types are given to bizarre, expansive interpretations of the Interstate Commerce Clause, say, or the General Welfare clause; but these are arguments based more or less in degree, not in kind. “What constitutes interstate commerce?” is where you must begin debating the former, for instance, and from there you can go just about anywhere (and, as the grotesque specter of Obamacare illustrates, many people will). We can criticize the rampant statism to be found in an enormously-broad definition of “commerce,” but at least it kind of makes sense. If you’re given to mangling the English language, anyway.
The Second Amendment is different. It 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.” One may have to read it twice to understand it, but that’s about all it should take. It is remarkable in its straightforwardness: the people retain a right to arm themselves, and that right shall not be infringed. What constitutes “infringement,” is, like debating the eccentricities of commerce, a necessary debate to be had. But no sensible debate about the Second Amendment can begin without first acknowledging the fact that it guarantees an individual right to firearms, and without first acknowledging how plainly obvious that is.
Such a debate is a nice idea, anyway. There is still a large amount of the American body politic that is under the impression that the Second Amendment doesn’t mean what it means. The presence of the word “militia” in the first clause is, to these people, the end-all-be-all of the entire text: the constitutional provision that clearly guarantees an individual right evidently does no such thing, even though it does. I do not mean to make light of many peoples’ well-intentioned and passionate beliefs regarding the Second Amendment, but quite simply, there is a wrong way and a right way to look at it. And a great many people, those who cleave to the militia clause contained therein, are wrong.
The reigning anti-individualist interpretation to the Second Amendment is one in which the text grants a right to governments, not people; it is, in the words of the ACLU, a “collective right,” which presumably means a government “right.” One school of thought holds that it grants states the right to maintain militias, in order to provide a militaristic check against otherwise-unchecked federal power. The other holds that the Second Amendment places the burden upon the Federal government to uphold states’ militias—again in order to ensure that states will have localized defenses against a centralized standing army. Both are wrong on a functional level, because both ignore extant and binding clauses within the Constitution itself—and the second is such a wacky explanation that one struggles to know where to begin.
For starters, the states themselves are forbidden from keeping troops without the consent of Congress—period, with no exceptions. That’s in Article 1, Section 10 of the Constitution. There has never been any evidence that the Second Amendment changed this. Indeed, the Federal government’s own records contradict this. Every provision of the original Constitution that has been changed by subsequent amendments is highlighted to show such a change. In some texts an altered clause is marked with an asterisk; in others, in brackets. On the government’s own website it is noted: “Items [in the Constitution] that are hyperlinked have since been amended or superseded.”
And yet the provision that bans states from keeping troops shows no such demarcation—not on archives.gov, and not in any physical copy of the Constitution across which I’ve come. If the Second Amendment truly allows states to maintain their own militias—if it confers a “right” upon which the Federal government cannot infringe—then the editors of every copy of the Constitution over the last couple of centuries have been mercilessly sloppy.
Similarly, the Constitution has never been edited to suggest that the Federal government has the duty to maintain state militias; Article 1, Section 8 of the document still maintains that the Federal government may do whatever it pleases regarding the militia, and with no duties or responsibilities attached. If the feds were truly required to provide for state militias, then where is the change that reflects this reality? There isn’t one, because they’re not required to do so, and they never have been.
And with good reason: how on earth could a federally-sponsored militia somehow protect against the federal government? That would be like allowing a violent criminal to dictate the manner and execution of a restraining order taken out against him. People who claim that the Second Amendment guarantees states the “right” to a militia from Washington seem to think that the American people are supposed to seek security and protection against a tyrannical government from the tyrannical government itself. How on earth would this work?
If we’re to take the “collective right” explanation on its face, then the Second Amendment created a right that the states are powerless to execute, that the Federal government has no duty to provide, and that would be useless and oxymoronic if the latter did so anyway. If one spends five minutes thinking about the “collective right” theory, it quickly becomes apparent that the individual right is the only one that can possibly function appropriately, and is thus the only right that the amendment was ever intended to protect. To put it bluntly, the “collective right” approach makes no sense.
It does to some people, however. In an otherwise-noble quest to try and reduce the amount of gun violence in modern America, the anti-gun lobby often indulges in any number of bizarre political contortions in order to get its point across. Lowering the number of gun deaths in the United States—a number that is dismayingly high—should be any right-thinking, sensible person’s priorities. Yet we shouldn’t indulge in bizarre historical and linguistic psychoses in pursuit of that laudable end. The Second Amendment guarantees an individual right—subject to reasonable regulation and control, of course, but individual nonetheless. The only way to change this reality is to amend the Constitution again. Then, at least, the anti-gun crowd would be honest; but then again, they would probably lose in the attempt. Which makes it clear why they resort to falsehoods instead.
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