You're Viewing the Archives
Return to IVN's Frontpage

On the Regulation and Infringement of Bearing Arms

by Jeremy D. Lucas, published


The existence of American freedom, namely those rights afforded in the U.S. Constitution, has long produced a cavalcade of misinterpretations, exaggerations, and tragedies that push us to the brink of arguing each and every issue with our hearts more than our minds.

When snippets of information about the Newtown massacre began to spread last month, capping off a year of widely publicized shootings, even the president, like the rest of us, had become troubled by an affective conscience. For if our most vulnerable citizens could become the mass casualties of a man with semi-automatic weapons, the natural progression of our hearts is to empathize with the victims and their families, then look for remedies that might, if possible, bring an end to the wave of similar crimes.

Unfortunately, so much time has passed between the formation of our Second Amendment and the carnage of modern, domestic terrorism that most of us simply choose a corner, pick someone or something to blame, and proceed to speak as though the Founders would share our disdain for those in the other corner.

However, those who were entrusted with drafting a Bill of Rights were anything but equally yoked. There were feuds, disagreements, and written debates that lasted for many years, especially when it came to the right of every person to keep and bear arms for their own defense.

From 1788 to 1789, the new constitution passed through the legislative bodies of every state in the union, men who were tasked with vetting the document and either approving or disputing its intent. Each state expressed its own concerns about the lack of citizen rights, but the nation was a blank slate and any allowance of rights beyond those that were unalienable (life, liberty, and the pursuit of happiness) would be a risky undertaking.  A free press could, if unregulated, spread lies and conspiracies that were unbecoming of the dignity of man.  Freedom of speech could, if unregulated, lead to dangerous threats and even greater falsehoods.  And needless to say, arms in the hands of untrained, malicious users, if unregulated, could mean a lengthy catalogue of innocent victims.

Following the Revolutionary War, the people gradually shifted their attention to a debate over centralized government versus the unique authority of each territory to regulate itself.  For example, if there was to be a collective force of arms—a military organized for the security of all —the question was whether states should be permitted to form militias as a means of protection against the possibility of a tyrannical government.

The New York legislature characterized this militia as a body of people capable of bearing arms; a reasonable exclusion of those who were either too young, too old, or too undisciplined to manage weapons.  Several of the Pennsylvania delegates like James Wilson shared a similar sentiment.

“I believe any gentleman, who possesses military experience, will inform you that men without a uniformity of arms accoutrements, and discipline, are no more than a mob in a camp; that, in the field, instead of assisting, they interfere with one another.”

Wilson was not entirely opposed to the benefits of a militia, but he feared that this would minimize the need for a centralized, well trained military to guard the new nation against enemies both foreign and domestic.  In essence, he believed that the military and the militia could not co-exist.  One would diminish the need for the other.

A more dominant view was that standing armies, owing their allegiance to the Federal Government, could be made the unwilling instruments of tyranny.  In order to keep the government from ever threatening its own people with military action, the Constitution gave states the right and freedom to organize their own militias and arm their own people.

“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.”

During the Constitutional Convention, an anonymous letter was addressed to the Citizens of the United States and published in the Pennsylvania Gazette.

“Who are the militia? Are they not ourselves?  Is it feared, then, that we shall turn our arms each man against his own bosom.  Congress has no power to disarm the militia.  Their swords, and every other terrible implement of the soldier, are the birth-right of an American.  The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”

By this definition, militias were quite simply the collective embodiment of all armed citizens living within a given state or territory.  And if there was to be a contingent of armed citizens, according to the Second Amendment, they must also be well-regulated.

Still, the Founders had their share of apprehensions about giving up all power to organize, arm, and discipline the militia within each individual state.  There could be, as one believed, dark and bloody ringleaders who commit “many horrid murders” deserving of great punishment.  In these cases, when it would be “expedient to disarm those who cannot conveniently be guarded,” the Federal Government wanted some understandable control.

A desire to protect the most innocent from violence has never been a sinister objective, even if that desire comes from the elected members of a central government.  However, the Constitution was strongly worded in favor of the state and its responsibility over regulating the arms of its own militia.

One of the greatest fears of the present day is that the untaught and unstable will acquire weapons for which they are not prepared to use.  Or, more tragically, that they may acquire those weapons legally and then use them for evil.

Modern assault rifles and semiautomatic weapons have become the talk of the land, ranging from the Beretta AR-70 to the AK-74; all of which can fire hundreds of rounds per minute.  The existence of extremely dangerous weapons has always stirred up the anxieties of those who do not use them, but it was James Iredell, a former Justice of the Supreme Court, who, for this very reason, learned how to quell the fears of his own mother.

“Be not afraid of the Pistols you have sent me.  They may be necessary implements of self-defense, though I dare say I shall never have occasion to use them.  It is a satisfaction to have the means of security at hand if we are in no danger, as I never expect to be.  Confide in my prudence and self-regard for a proper use of them, and you need have no apprehension.”

Samuel Nasson, a delegate to the Massachusetts Convention, argued it this way:

“The right to keep arms for common and extraordinary occasions such as to secure ourselves against the wild beast and also to amuse us by fowling and for our defense against a common enemy or to learn the use of arms is all that can save us from a foreign foe that may attempt to subdue us, for if we keep up the use of arms and become well acquainted with them, we shall always be able to look them in the face that arise up against us.”

Those who wrote, enacted, and endorsed the Second Amendment were cognizant of public apprehension about dangerous weapons getting into the hands of dangerous men, but they stood for the right of all Americans to keep and bear arms for any range of personal or collective reasons.  That those weapons may become more technologically savvy over the years was a change to be expected, but the text of the Bill of Rights was far less likely to undergo any major edits over the same period.

Today, the American public seems grossly divided over the need for existing militias.  Some argue that if the purpose of the Second Amendment was to ensure states could protect themselves through an armed citizenry, then militias will always be an essential part of this nation’s internal security.  Others argue that modern media is fueling the fires of an irrational citizenry, prone to take illogical matters into their own hands and use their militias as a cover for unnecessary violence.

The Militia Act of 1792, signed by President Washington, ensured for more than 100 years that every ‘free able bodied white male citizen’ aged 18 to 45 should “provide himself with a good musket or firelock,” even a bayonet and ammunition.  Setting aside the obvious element of racial discrimination, this was clearly a law urging citizens to keep and bear arms.  But the law also declared that the president could, if need arose, take full command of a state militia.  Almost twenty years later, in his 8th Annual Message, President Jefferson suggested that with growing challenges to the trade of weapons abroad, more local factories should be constructed for the manufacture and production of our own munitions.

In 1903, the government drafted a new Militia Act, which became the original root of our National Guard; an organization meant for the individual protection of states, but one that could be mobilized through the order of a sitting president.  If, then, the National Guard represented a “well-regulated Militia,” as prescribed in the Bill of Rights, then this left open a discussion of other, less regulated organizations that still refer to themselves as militia groups.

An unregulated body of armed citizens may be perfectly safe, but their lack of accountability makes them a dangerous wild card in the eyes of nonmembers.  Given the need for armed support in times of immediate crisis, such as the devastation from Hurricanes Katrina and Sandy, Americans now rely almost solely on the protection and efforts of their National Guard, making other organizations seem to many like nothing more than vigilante thugs.

By 1939, in the case of United States v Miller, the Supreme Court heard the arguments of a man who had been transporting illegal weapons across state lines.  The conclusions of the court have long been debated on both sides of the political aisle, but one part of their decision is particularly interesting.

“…the Militia comprised all males physically capable of acting in concert for the common defense. A body of citizens enrolled for military discipline. And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

According to the Supreme Court, militias were, from the very beginning, a collection of armed citizens who would, when called upon, bring their own weapons.  In other words, militia members were not to be amateur cadets, but already skilled fighters.  The catch, of course, was that they had to be skilled in weapons that were “in common use” at the time.  Today, defining what weapons are “in common use” would require some brutal honesty about criminal behavior and international terrorism.

If, for example, the United States were to face an unprecedented invasion from a foreign terror cell, pistols and handguns would not silence the screams of more violent weapons used by the enemy.  What is common to the average American household may not be what is common to a global villain.  Hence the position of many gun owners who extol their right to keep and bear assault rifles as well as other weapons of war.

Almost twenty years ago, Senator Joe Biden was crucial to the passage of a Federal Assault Weapons Ban that lasted almost ten years until its expiration in 2004 under a Republican administration.  With Biden now serving as vice president, gun-owners have long been wary of any action by President Obama that might reflect the interest of his second-in-command; a point reinforced with the cover of this week’s Time Magazine, which shows Biden, New York City Mayor Michael Bloomberg, and shooting victim Gabby Giffords, all titled as the “Gunfighters.”

But the debate over banning or not banning weapons has not always been about assault weapons.  In 1968, presidential candidate and former Secretary of State Robert Kennedy was killed with a pistol.  Earlier that same year, civil rights leader Martin Luther King, Jr. was assassinated with a Remington Rifle.  Both of these high profile incidents, along with the publicized slaughters of President Kennedy and Malcolm X, cut through to the heart of American sympathies and understandably so.  The capacity for any individual to possess weapons for unmitigated violence led the government to take action, passing the Federal Gun Control Act with a democratic majority.  If a person with criminal intent was able to acquire weapons, the government simply wanted a means for tracing that acquisition.

Right or wrong, the pendulum of reasonable debate over the Second Amendment has never been about who supports the Bill of Rights and who does not.  We are, by the nature of our existing freedoms and often questionable laws, endlessly bound to argue and argue over the paradoxes of our political contradictions, ad naseum.

If, as the Founders themselves argued, the Second Amendment was designed primarily for the regulation of a well-suited militia, then perhaps we, as a people, can find room to discuss the management of our weapons without declaring a monopoly on constitutional patriotism or suggesting that ours is a more sincere compassion.  Just as the debate was necessary among gentlemen in centuries past, we are certainly capable of a productive discourse in this, our present generation as well.

About the Author