THE SECOND AMENDMENT AND THE SUPPOSED RIGHT TO REVOLT


GUEST OPINION

Published in Northern Express, Week of August 29 - Sept 4, 2022

BY TOM GUTOWSKI | AUG. 27, 2022

There’s an increasingly common notion that the basis of gun rights in America is that every citizen has the right to oppose government—should it become tyrannical—through force of arms, and that therefore no limitation whatsoever on the ownership or use of firearms is valid. This is factually incorrect and extremely dangerous. There were two legal bases for gun ownership in the colonies. One was English common law. To risk over simplification: In England, many people owned weapons, but the government retained the right to decide who could own one, the conditions under which it could be discharged, and under what circumstances it could be carried in public. Not surprisingly, the situation in the colonies was similar. The other basis for gun ownership was membership in one of the militias that were created for the common defense. In most colonies, all able-bodied males between certain ages were required to own a weapon and register it with the government, to muster periodically, and to serve when called upon. The musters were often social events, as well as occasions for inspecting weapons and for providing training. Overall, then, the right of an individual to own a gun, whether based on common law or membership in a militia, came with certain restrictions and with civic obligations. The obligations weren’t always fulfilled. Many militia members couldn’t afford weapons, some didn’t maintain them, some failed to show when called up, and a few even defected to the other side when called upon to put down an insurrection. And while the Minutemen justly gained fame during the revolution, the overall performance of the state militias was less than stellar. To improve the functioning of the militias, the Constitution gave Congress the power (in article 1 section 8) to provide for calling up the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and the power to provide for “organizing, arming, and disciplining” them. The Constitution reserved “to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Anti-Federalists opposed giving the central government so much authority over state militias. So James Madison, a Federalist and supporter of the new Constitution, wrote the Second Amendment to assure them that state governments would always have the power to arm their militias should the federal government, for whatever reason, ever fail to do so. Militias existed to quell insurrection, not foment it. The framers feared anarchy, which was not unreasonable, especially in view of the difficulty involved in putting down Shays’ Rebellion, which took place in Western Massachusetts shortly before the Constitutional Convention. The Second Amendment was a sop to those who feared that a strong central government might disarm the militias; it didn’t create a constitutional right to violently resist either the state governments or the federal government. Arguments to the contrary tend to rely on poorly done historical analysis or on simple assertion backed by quotes that are either out of context or simply fabricated. In fact, there are so many fake Thomas Jefferson quotes in circulation—for example, he never said “the strongest reason for the people to retain the right to keep and bear arms” is to “protect themselves against tyranny in government”—that monticello.org has a section devoted to debunking them. In any event, the issue was settled at a cost of over a half-million lives by the Civil War. The mechanisms that are supposed to keep the government from becoming tyrannical include the separation of powers among the branches of government, competing interests among citizens, and, most importantly, the vote. Those with differing opinions are supposed to fight it out with ballots, not bullets. Today the radical right denies the legitimacy of each of these mechanisms, and talks instead about “Second Amendment remedies.” They claim that the government has been captured by the “Deep State,” that their political opponents are evil people with whom compromise is unthinkable, and that our elections are rigged, despite overwhelming evidence to the contrary. Add in the fact that gun manufacturers advertise their wares as symbols of masculinity and that Trump’s legal woes are mounting, and it’s no wonder the violent rhetoric has escalated. The notion that Madison’s intent was to make it impossible for the government to impose rules on the ownership, storage, or use of guns makes no sense. Madison twice submitted a bill to the Virginia state legislature that would have prohibited the carrying of a gun in public unless one was “performing military duty.” The bill failed, but it clearly showed that Madison thought such laws were permissible. And even the 2008 District of Columbia v. Heller decision, written by conservative justice Antonin Scalia, held that “the right secured by the Second Amendment is not unlimited.” We can find a workable balance between gun rights and gun safety. After all, the vast majority of gun owners are reasonable and responsible people. Let’s not let the loudest and most radical voices dominate the conversation.

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