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The Second Amendment and Guns

© 2018 Eugene Falik


Much, if not all of the arguments in favor of an unfettered right for anyone in America to have whatever sort of gun s/he would like eventually comes down to the language of the Second Amendment to the U.S. Constitution which says:


"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."


For many years this was understood to mean that the individual states had a constitutional right to have a state militia. Not that individuals had a right to have a home armory.


Today, all states do have militias, in the form of the National Guard. But, in fact, the state National Guard units are ultimately under the control of the federal government, not the states, since they can be federalized at any time by the president


So what was the “original intent” of the framers as the so-called strict constructionists like to ark back to? They were creating a federal system so that the individual, sovereign, state governments could work together more effectively than they had under the Articles of Confederation. The framers didn't really trust a national government so they created a system of checks and balances, and limitations. The national government had only specific, limited powers. But among those powers was the power to do all things necessary and proper for carrying out the enumerated powers. The “elastic clause.”


As the country grew, it became clear that we were not a people of individual states, but of the United States and federal law was supreme. The states might have their militias but fewsupposed that the state militias purpose was to protect the states or their citizens against the United States the federal government. And then the South Carolina militia fired on the federal fort in Charleston harbor. And the Civil War began.


President Lincoln took the position that the United States was indissoluble no state or group of tates had the right to secede from the Union. The matter was settled for all time by the supreme decision at Appomattox Court House when General Robert E. Lee surrendered his forces and sword to General Ulysses S. Grant. And, despite the plain fact that Lee and his forces were plainly guilty of treason against the United States, Grant sent them home with their horses and Sidearms.


So, after 1865 there was no right to make war on the United States. And today, state militias are ultimately under the control of the federal government. The Second Amendment was effectively Repealed.


And then came two Supreme Court decisions, District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Whereas up until then it was understood that the Second Amendment was a right of the states vis a vis the federal government, in these two decisions the Guns.Docx Page 2 of 3 © Copyright 2018 Eugene Falik

Court found that it protected the rights of individuals against the states! The only saving grace was Mr. Justice Scalia’s dicta that there could be some limits on the individual “right to bear Arms.”


Now there are two questions that must be reviewed. First, what precisely is meant by “Arms”? And what are the limits on their regulation? In terms of a definition of what is meant by “Arms” perhaps Oxford’s definition is simple and best:


Weapons; armaments.

‘arms and ammunition’


It seems clear, both from the context of the Second Amendment and from Oxford that arms includes any device or thing that is used to make war. It certainly includes things whose primary purpose is to make war.


Under this definition, certainly rifles would appear to be protected. It is less clear that hand guns are protected since they are not typically used by soldiers. When they are used, it is by officers for the purpose of controlling (policing) their troops. So, if we follow this logic, there is a constitutional right to own a rifle but probably not a right to own a hand gun.


Let’s follow this a bit further. Since weapons of war are permitted, there can be no doubt that semi-automatic rifles are permitted, as are fully automatic rifles (machine guns). Thus federal law banning machine guns must fall. On the other hand, the federal government or the states may regulate or ban handguns since they are clearly not weapons of war.


While we are at it, let us examine other weapons of war which the Court has authorized such as howitzers, canons, and bombs. It seems clear that despite Justice Scalia’s dicta, most people have at least some rights to possess these devices. Indeed, the Court’s recent reasoning would lead one to conclude that the police may not interfere with my right to keep a few atomic bombs in my basement.


Now I suspect that few people would subscribe to this reasoning (outside of the National Rifle Association). So, if we accept DC v. Heller and McDonald v. Chicago, it would appear that any sort of rifle is permitted but the states can limit handguns. Then the question that must be answered is, what larger caliber weapons are permitted?


I would suggest that a simple test might be to limit the amount of explosives that one could possess. That would have the effect of limiting the size of weapons (probably less power than a hand grenade), and the amount of ammunition (20 bullets perhaps).


Of course, these limits wouldn’t allow a person to fight a war, which was the original intent of the Second Amendment, but they would probably accord with most people’s idea of what is sensible. The only ones who wouldn’t accept such limits are the NRA and the so-called alt-right that really does believe in overthrowing our government.


On the other side of  these Second Amendment folks is much of the American public which, according to all surveys, believes that all weapons (“arms”) should be subject to government regulation. How much, and what sort of regulation may be in dispute, but it appears that well over half of the public believes that all transfers of gun (or other weapon) ownership should be subject to government review. And there is a general consensus that particular categories of people should never be allowed to have access to weapons. These categories include those with a history of psychiatric problems, those convicted of family abuse, and those convicted of violent crimes. Of course, in some places, such as New York, particularly New York City, we believe that anyone who wants to own a gun must make an affirmative showing of why s/he needs it.


Finally, there is the question, unresolved by the Court, of the purpose and need of weapons. which brings us full circle to the “original intent” so dear to the right wing’s hearts. Any reading of original intent at the time, discussions of the framers and the public, makes it clear that the original intent was to allow the state militias to quickly raise armed bodies either to maintain public order or to wage war against the United States should the new national government prove unworthy of the power and trust placed in it.


We now have paid, professional police forces to maintain order. And, as mentioned earlier, the Civil War was the final decision on statespowers vs. that of the federal government. So what is the remaining justification for people to have guns? Certainly it is not for safety. Households that have guns have a far higher death rate than those that do not. And states where guns are freely available have very significantly higher death rates than states that limit gun possession. Finally, a recent article in The New York Times, “What Explains U.S. Mass Shootings? International Comparisons Suggest an Answermake plain that the result of the high gun ownership rate in the United States is the proximate cause of the multiple mass shootings that we have experienced.



Useful information about the Second Amendment and guns:

The Lessons of a School Shootingin 1853

How a now-forgotten classroom murder inflamed the national gun argument.

By SAUL CORNELL March 24, 2018

https://www.politico.com/magazine/story/2018/03/24/first-us-school-shooting-gun-debate-217704


Congress Quashed Research Into Gun Violence. Since Then, 600,000 People Have Been

Shot.

By SHEILA KAPLAN MARCH 12, 2018

https://nyti.ms/2tETZRn (New York Times)


What Explains U.S. Mass Shootings? International Comparisons Suggest an Answer

The Interpreter

By MAX FISHER and JOSH KELLER NOV. 7, 2017

https://nyti.ms/2j79rRs (New York Times)