WHAT ARMS?

“Well, it looks as though the Supreme Court punted on the latest gun control case,” I said as I looked at an article relating the fact. 

“What are you talking about?” Socrates asked as he looked up from his newspaper. 

“Someone appealed Maryland’s ban on semi-automatic rifles to the Supreme Court, but they declined to hear the case,” I replied. [1] “I’m a little surprised. I thought the Supreme Court was moving in the direction of gun rights.” 

“It doesn’t mean that much if the Court declines to hear a case.” Socrates said. “In light of recent decisions, they’re going to have to take up the issue eventually. But this doesn’t mean that the Court means to uphold Maryland’s law.” 

“I hope not. It would be disappointing if they started to backtrack on their recent Second Amendment cases.” 

“I take it you’re big on the right of citizens to own firearms,” Socrates said with a challenging smile. 

“You’re damn right!” I exclaimed with a tone of righteous indignation. “We have a right under the Second Amendment to bear arms.” 

Socrates took on an amused expression, to which I responded, “Don’t tell me that you’re one of those people who think the Second Amendment only protects the National Guard.” 

“Of course not,” Socrates replied. “The National Guard was created out of the militia in 1903. [2] The Second Amendment was ratified in 1791. How could the Second Amendment have been intended to protect the existence of the National Guard?” 

“Well, a lot of people think that because the Second Amendment refers to the militia.” [3] 

“But ‘militia’ is a pretty universal term, isn’t it? Last I checked, the militia consists of all able bodied male citizens from 17 to 45. [4] Are you sure they don’t mean that the right to possess and carry firearms exists only in connection with militia service?” [5] 

“You’re right. I think that’s it. But what say you?” 

“Well let’s take a look at the Second Amendment,” said Socrates. “It 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.’” 

“You have a good memory.” 

“It’s not that long. But let’s consider the meaning of the terms. I note that the Amendment refers to the ‘right of the people.’ Does that mean only the segment of the people in the militia or the National Guard?” 

“Certainly not.” 

“The ‘people’ must be the citizens of the United States, do you agree?” 

“I do.” 

“Every citizen?” 

“Sure.” 

“But you don’t mean that three-year-olds have a right to bear arms, do you?” 

“No, that would be silly.” 

“And dangerous. So, would it be fair to assume a measure of common sense and say that every citizen has a right to bear arms unless they suffer from a disability, such as minority or insanity?” 

“I think so.” 

“And would it also be sensible to prohibit arms to those who have demonstrated an inability to refrain from violence? I mean those who have been convicted of some crime involving violence.” 

“That makes sense.” 

“Okay, now that we’ve established that the right to bear arms applies to everyone with the exceptions mentioned, now we need to decide what sort of arms the Amendment refers to.” 

“You’re not going to suggest that the Second Amendment only means that we only have a right to keep and bear black powder muskets, are you?” 

“No. But does the Second Amendment say that we have a right to keep and bear any sort of arms we desire? 

“Of course it does. Why wouldn’t it?” 

“So does it protect a right for anyone to possess a bazooka, a grenade launcher, or even a tank?” 

“No, I suppose it doesn’t. But what sort of arms is it referring to?” 

“Consider the wording of the Amendment. Does it refer to ‘a’ right to keep and bear arms, or ‘the’ right to keep and bear arms?” 

“’The’ right to keep and bear arms.” 

“Then what is ‘the’ right to keep and bear arms? Clearly the Amendment was referring to a right that existed prior to its adoption. Otherwise it would have said ‘a’ right to keep and bear arms.” 

“Interesting point. I never thought of that.” 

“So where can we find what right the Amendment is referring to?” 

“Beats me.” 

“Well, didn’t the Framers come out of a legal tradition, by which I mean the legal tradition of England?” 

“Yes, you’ve pointed out to me before how we inherited the common law from England.” 

“And the paramount authority on the common law at the time of our nation’s founding was Blackstone’s Commentaries, am I right?” [6] 

“If you say so.” 

“So, doesn’t it make sense that in order to understand what the Framers meant by the right to keep and bear arms we should consult Blackstone?” 

“It does. But what did Blackstone say about it?” 

“He said that having arms for one’s defense is a necessary auxiliary right to the right to personal security. He wrote that it was “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” [7] 

“That makes sense. You can’t call the police while someone’s holding you at gunpoint.” 

“He didn’t make it up. When he wrote that he was referring to the English Bill of Rights of 1689, which included the provision that “the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” [8] 

To that I laughed out loud. “Catholics and Jews weren’t allowed to have guns, but Protestants were? So the Second Amendment protects the right of Protestants to keep and bear arms, and the rest of us just have to hope for the best?”

“Well, there’s a history behind that,” Socrates explained. “The previous king, James the Second, had purportedly disarmed Protestants while allowing Catholics to own and possess arms. So, in historical context, the provision could have simply meant that Protestants would be allowed to have arms going forward, without prohibiting arms to Catholics or Jews.” 

“We can hope,” I said, still laughing. “Catholics weren’t too popular in the English speaking world in those days.” 

“No, but when Blackstone referred to the right to have arm’s for one’s defense, he didn’t mention any religious qualifications. And if you study his Commentaries, you will find that he was not at all favorable to Catholicism. So, doesn’t it make sense that if Catholics and Jews were intended to be excluded from the right to have arms that he would have mentioned it?” 

“Maybe.” 

“Besides, the Founders were anxious to keep religion and government separate. So, does it make sense that they intended the Second Amendment to apply only to Protestants?” 

“No, I guess not.” 

“Anyway, the point I’m trying to make is that the Amendment, since it referred to ‘the’ right to keep and bear arms, must have been referencing the antecedent English law.” 

“That makes sense.” 

“And what was the scope of that antecedent law? Wasn’t it to have arms for self-defense?” 

“It sounds like it.” 

“Doesn’t that clarify what kind of arms are intended to be covered by the Second Amendment? One doesn’t need a tank or grenade launcher for self-defense.” 

“Okay, but then why does the Second Amendment mention the militia?” 

“That’s the prefatory clause of the Amendment. It doesn’t necessarily define the scope of the operative clause. It makes sense that they would have thought of the militia in connection with the personal ownership of firearms in those days. An infantryman’s musket and those possessed by civilians wouldn’t have been that different. Of course, nowadays, the weapons that are suitable for self-defense and those carried by the military can be quite different. For example, a select-fire assault rifle is overkill as a personal defense weapon. But it’s standard issue for the military.” 

“Okay, maybe a fully automatic machine gun isn’t necessary for civilians. But the Supreme Court just rejected a case dealing with the prohibition of semiautomatic rifles. How do you think they’ll eventually come down on that?” 

“Time will tell,” Socrates said. “But don’t you think it’s highly questionable that a semiautomatic rifle is a self-defense weapon? Their range is somewhat beyond what is necessary for those purposes.” 

“True, but they’re necessary for deer hunting.” 

“There’s no danger of deer shooting back. Is a semiautomatic rifle necessary for deer?” 

“You seem to think it would be okay if they restricted us to shotguns and handguns. But what about our ability to rise up against the government if it turned against us? Wasn’t the Second Amendment adopted for that purpose too?” 

“Jacob, does it make sense to you that a document creating a government would provide for its own overthrow?”

“I’ll say it again. The Second Amendment refers to the militia.”

To this, Socrates laughed. “The militia is an agent of the state. Would an agent of the state overthrow the state?” 

“No, but what about those independent militias we hear about?”

“They’re not militias. I don’t know what to call them, but they’re not militias, properly speaking. Besides, think. Even if we gave those guys automatic weapons, do you think they would stand any chance against the United States Military?” 

I had to concede that point. “No, I think it would be pitiful.” 

“Yes it would.” 

“Then how do we fight against our government if it becomes tyrannical?” 

“Civil disobedience,” Socrates said. “It’s the only way.”

 

—Jack Quirk