THE BLOG
06/03/2013 10:15 am ET Updated Aug 03, 2013

Rethinking the 2nd Amendment Entirely

Has anybody serious actually read the 2nd Amendment to the US Constitution? Do it, and know a fair amount of history of the period, and strange things start happening to the political mind. Basically, the Amendment is ridiculously obsolete, like the powdered wigs worn by its adopters.

The NRA won't like to know that. Neither will the "originalists' who insist that the Constitution must be applied as its drafters intended some 226 years ago.

Here is actual text of the Amendment, which is part of the Bill of Rights drafted, chiefly by Virginia's James Madison:

"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."

What does this sentence mean ? What could it likely have meant, in 1787 ?

It's a most unusual provision to find incorporated into constitutions. As others have noted, only a very, very few written constitutions contain such a provision. This fact tells us quite a bit, actually, about what the Amendment likely meant in 1787; because almost all currently operative written constitutions were written well after 1787 -- most of these quite recently. And the history of recent times, quite bluntly, tells us why : citizen militias don't exist any more in first world nations.

At the time that our Amendment was drafted, we had just won a war against a long-serving professional army to which paid mercenaries -- the Hessians, from Hesse in Germany -- were added. We won that war by using private citizens called to serve. Most of them brought their own arms, because the Convention in Philadelphia hardly ever had ANY money, much less enough to buy weapons and ammo, not to mention facilities for making them.

Those who were called to serve -- slaves as well as citizens -- had to be trained and formed into a fighting force. Ours was the first of what during the Napoleonic Wars became a standard feature of first world armies : citizen militias conscripted to fight invading armies, chiefly of citizen militas too. However, militias of that sort disappeared from the first world during the course of the 1800s, as the Industrial Revolution and national banking systems -- including national debt issues -- gave nations the funds with which to outfit, equip, and arm entire armies (and reserve armies) into which conscripted citizens (and others) blended with professionals.

In our country, the militias of the 1780s became the National guard, organized state by state. Today it acts as a reserve force.

Now let's take a look at the words of the Amendment again:

"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."

As to "well regulated Militia,' clearly the drafters had in mind the recruited, seasonal fighting force of non-professionals, trained and regulated to fight under Federal commanders but having their own arms available. Available but "well regulated."

as to "the right of the people," the operative words are "the people." "the people" is a collective noun. The Amendment DOES NOT say 'the right of every individual." It DOES NOT confer upon just anybody any right whatsoever. it confers the right COLLECTIVELY ONLY. It envisions -- as it must have -- a well-regulated BODY of soldiers armed and operating AS A BODY, under regulations, under command.

as to "to keep and bear" : at the time of the Amendment's adoption, most citizen arms were kept at home. There wee no arms arsenals. but these were very quickly developed, and, as the "right to bear and keep" belongs to "the people," not to individual persons, the arsenals that were soon built to keep them were exactly the keeping mechanism envisioned by the Amendment. Today we also allow arms to be kept at sport shooting clubs and hunters' lodges, under lock and key for the membership as a body.

There is not one word in the Amendment about individuals using arms for individual self-defense.

These directives and permissions are surely what the drafters of the Amendment in 1787 intended. That they DID NOT intend an unregulated group of people, or individuals, to suddenly brandish arms was shown almost immediately after the Amendment's adoption in 1789-91, when Federal forces at the orders of President George Washington, no less, put down the "Whiskey Rebellion" in 1794.

But this is all just history. Citizen militias no longer exist, and the need for the amendment has vanished with them. Two consequences follow:

1. "Originalism" as a method of Constitutional interpretation cannot be the decider in constitutional disputes. LIFE CHANGES, and especially in an evolving society whose very mission is to make a better life for everybody, it MUST change. Thus the law must change too. What lawmakers in 1787 intended may be of interest to writers of history, and may inform us, to our benefit maybe, as to the goals they intended to set our nation upon. But what they intended cannot limit our free nation's freedom to change our arrangements, except to assure that those changes promote democratic values.

2. the NRA is arguing a non-existent will-o-the-wisp. Their call for everybody to be armed all the time with whatever weapons they want when they want is as entirely UN-historical as their justification for it is ONLY historical. Not surprisingly, and quite sensibly, the NRA's call is opposed by an overwhelming majority of Americans. The NRA fails. As does "originalism."

Given the obsolete-ness of the Second Amendment and its abuse by those who hang 21st century arguments upon it, it's a good time now to rethink the Amendment; to reinterpret it; or to replace it entirely.