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Misreading the Second Amendment

2ndamendment (2)

 

Every once in a while, I’ll read or hear from some gun nut the foolish notion that the Second Amendment is intended to give the citizenry the right to mount an insurrection against the government.

The exact opposite is the reality.

Journalist Andrew Reinbach explained the situation in a piece he wrote four or five years ago for The Huffington Post, a copy of which I’ve saved for reference.

Reinbach wrote:

If somebody brings up the first phrase –” A well regulated Militia, being necessary to the security of a free State…” they [the National Rifle Association, et al] insist the militia meant the people at large, and that the idea was to create a counterweight to the central government, so it wouldn’t dare infringe on the people’s rights.

I’m sorry to have to burst their bubble — well, not really — but the legislative history following the Second Amendment’s passage very clearly supports the opposite of what they say. In 1789, the militia was intended to substitute for a standing Army, and to defend the government from insurrection.

Congress passed two Militia Acts in 1792. The first created state militias, each under control of that state’s governor, specifically created to resist invasion, and suppress insurrection. The second directed all able-bodied white men between the ages of 18 and 45 to belong to their state militia, own a gun and related equipment for that purpose, and report for duty twice a year. The law even laid out how many bullets each militia member had to bring with him–25 if he owned a musket, 20 if he owned a rifle. After the Civil War the Acts were modified to allow black militia members to belong. In 1903, the state militias were merged with the National Guard.

Aside from frontier fights with the Indian Nations, the militia was used only twice between 1792 and 1814: Once against the Whiskey Rebellion in western Pa. (led in person by George Washington); and then at Bladensburg, Md., to defend Washington DC against the British (the militia ran at the first volley and the day has been called the Bladensburg Races ever since). There was one use of a militia under the Articles of Confederation; in 1787, Shay’s Rebellion in western Massachusetts was put down by a private militia after Shay’s men attacked the Springfield armory.

There is no record of any legally-constituted militia “defending the people against a tyrannical government” under the Constitution — acts it would construe as treason, under Article 3, Section 3 (“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”) The only way to claim otherwise is to use the Civil War as an example. Even then, using state armies that way fit the Constitution’s definition of treason; it was simply expedient after the war to let the matter go.

Given that, anyone can see that the militia under the Constitution was an instrument of the state from the first, and never meant to safeguard the people from the state. What the NRA is doing is trying to confuse colonial militias — when there was no United States — with militias under the Constitution.

The record likewise makes clear that personal gun ownership was protected by the Second Amendment as a way to arm the militia. Of course, lots of people owned muskets or rifles then anyway. And in general, most people didn’t care. But a glance at the historical and legislative record explains why the Second Amendment has three clauses in one sentence and can’t be understood without considering all of it — screams from the right notwithstanding.

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5 Comments

  1. Am I the only one who notices that Pat routinely trots out old columns such as this one, sometimes after only a few months? He changes a few words but doesn’t acknowledge the repeat. I pointed this out once before so sometimes I think he recycles just to troll me. Either that or the suits are standing over him yelling “You’re not making rate, Cunningham!!”

  2. Apparently the “milita” force resembled today’s National Guard troops.

  3. Neftali

    There goes Pat again with his absurd and fantasy notion that the 2nd Amendment somehow has “three clauses.” Of course, the truth is that it has only two.

    Pat obviously needs to re-read DC v Heller.

    “The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment , 73 N. Y. U. L. Rev. 793, 814–821 (1998).

    Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).3 “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.4”

    https://www.law.cornell.edu/supct/html/07-290.ZO.html

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