Tuesday, March 27, 2018

Can the Second Amendment Be Repealed?

Breitbart is reporting today that the term "Repeal the Second Amendment" is trending higher on Twitter. This is an interesting and not-unpopular notion - that the Second Amendment has outlived its usefulness should be repealed. Can it be repealed?
"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." - Second Amendment to the U.S. Constitution
A quick answer to this question, and then I'll dive into some of the contested details of the language in this amendment: Yes and no. Yes, a constitutional convention may eliminate the text of the Second Amendment. However, no, the actual rights enumerated by the Second Amendment cannot be revoked. 

Contrary to the impression given by this amendment at first glance, the Second Amendment does not actually grant any rights. It instead acknowledges a preexisting right to keep and bear arms, and states that the preexisting right shall not be infringed. The right of the people (citizens in good standing) to keep and bear arms cannot be revoked, even if it is crossed off on paper, because it is a natural right which predates the U.S. Constitution. This was acknowledged in the US Supreme Court decision US v. Cruikshank:
"The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government." - US v. Cruikshank
I might add that any gun control or confiscation legislation concocted pursuant to a repeal of the Second Amendment wound necessitate law enforcement against, effectively, a guerilla army of American citizens. Of all the law enforcement and military personnel I have encountered, I have yet to meet the person who is enthusiastically willing to participate in widespread gun confiscation activities. 

Now, assuming the text of the Second Amendment stays right where it is, it is incumbent upon us to interpret and understand the Amendment correctly. There is much said about the term "well regulated militia", the allegation being that only people involved in state sponsored militia activities may keep and bear arms. Another supreme court decision addressed this by saying:
"Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." - DC v. Heller 
Indeed, a close examination of the Second Amendment reveals that the final part stating "the right of the people to keep and bear arms, shall not be infringed" does not depend on the language of the first part, which simply offers contextual background about the importance of a well regulated militia.

The term "well regulated" had a much different meaning in the 18th century parlance from the way we might interpret it today, especially when used as an descriptor for militia or military troops. A 19th century dictionary defined the term "regulated" to mean the following:
"REG'ULATED, participle passive Adjusted by rule, method or forms; put in good order; subjected to rules or restrictions." - American Dictionary of the English Language, Noah Webster 1828
So, in addition to the modern use of the word to mean something subject to rules and restrictions, regulated also meant "put in good order" to the writers of the Constitution. We can also look at writings of the time for context of the term "well-regulated", with and without the hyphen, when describing militia service. Here is an amateur article with a collection of historical references. I may be accused of cherry picking definitions. To that, I say, I'm fairly certain based on all relevant contextual information that the founders weren't referring to a hole in the ground for obtaining water when they qualified the word "regulated" with "well". They wanted to impress upon us the importance of a militia that was very well in good working order.

It has been argued that the modern day militia no longer refers to the armed citizenry, but instead to the military force that is the National Guard. This is not correct. Despite its creation and existence, there has never been a law codified which causes the National Guard to supersede the citizen militia. Instead, the National Guard fills the skills deficiency of the citizen militia described by Alexander Hamilton:
"The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss." - Alexander Hamilton, The Federalist Papers, #29
Hamilton described that it's a real burden for the average person with a full time occupation to become truly well regulated in military strategies, tactics, and techniques. Although this is largely irrelevant anyway since we know that the right of the people to keep and bear arms is not dependent on militia service, it is a consideration when evaluating the necessity of the national guard as a government funded and government organized militia organization. The armed citizen militia was not and is not enough to meet all of our nation's offensive and defensive fighting needs. That fact does not negate the importance of an armed populace. The law has upheld the place of the citizen militia in the defense of a free state, and may have even been a factor in why the continental US was not invaded by the Japanese in WWII. According to the Efficiency in Militia Act of 1903, which provided funding for the National Guard, there are two portions of the militia - the organized militia (the National Guard), and the reserve militia (everyone else):
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes—the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia." - The Efficiency in Militia Act of 1903 (emphasis added)
But does this mean only men between the ages of 18 and 45 can be members of the citizen reserve militia, and the right to keep and bear arms can be revoked from all other people? No, because - again - the Supreme Court has determined that the right of the people to keep and bear arms does not depend on militia service. We might also evaluate that the word "people", used to describe who may own and carry arms, is the same "people" used in the First Amendment to enumerate who has the right to peaceably assemble and petition the government for redress of grievances. Clearly, people means people, and not the government or military. I doubt very seriously the Founders of our nation would have emerged from a bloody war against an oppressive dictatorship, only to be extremely concerned about preserving the right of the government to own guns and petition itself for redress of grievances.

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