We Need More Gun Control Control – The 2nd Amendment, Part 1


Welcome to “We Need More Gun Control Control…” a mini-series focused on plunging deep and wide into the world of gun control. We are not here to rehash some frivolous arguments or the back-and-forth discussions that keep taking place, but to truly provide a full exposé on the history, myths and cruft that has evolved around guns and gun control. In this part of the mini-series, we plunge neck-deep into the 2nd Amendment providing a complete perspective on how it came into existence, what it meant and what the intent really was. You will be shocked at some of what we reveal.

My Background

Author’s note: This section will be repeated for reference with each article in the series. If you have read it before, feel free to skip it.

Personally, I believe that one of the missing pieces within the gun control dialog is the element of bias. I believe that the words of one side are completely ignored by the other side – each side sees the other with extreme bias. The gun controllers view the other side to be “gun nuts” who don’t care, nor have been affected by guns. The gun rights advocates view the other side to be “liberals” or “non patriotic”, who want to do nothing but take guns away.

So, for the sake of clarity of my potential background and biases, I want to state some key elements of my history and background.

Courtesy of worldatlas.com

Yes, I am biased toward guns and I believe in less gun control. That is not without some significant history with the “dark side” of guns. In my military experiences as a medic, I witnessed, treated and even suffered the loss of my brothers to gun shot wounds. I intimately know the loss and the capabilities of weapons. As a former law enforcement officer, I have had guns pointed at me with the intent to kill me. As a hunter, I have had idiots shoot in my direction, zinging bullets by my head as I sit vulnerable on a deer stand.

I have personally suffered the negative side of guns – not once or twice (as many victims at best may), but many times.

I have not lived my life full of guns, as many gun controllers might think. While I have been around guns all of my life and most of my adult life (except for the past 7 years or so), the only guns I owned were a few old guns passed down to me from my family. Several of those guns were non-functional. It has only been in the last 7 years that I have renewed a passion and love for guns.  With my sons nearly grown, I have moved into a new phase of my adult “gun life”.

This is shared with you, the reader, to say, that I have not been the “gun nut” many may think. In fact, I am the person who has lived with and without guns.  I have personally seen the negative consequences of guns.

The 2nd Amendment (and more)

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.

Simple, isn’t it? It must not be, since the debate about what it means has being going on for decades.  Let’s plunge into arming ourselves with the tools to understand it better.

Dissection of the Words & Phrases

To understand, let’s make sure that we understand the context and definitions of some key words and phrases.

Courtesy of tenthamendmentcenter.com

Militia

First is the term “militia”. There are many arguments that the usage of this word makes the possession of arms something only granted to the military. In Webster’s Dictionary, the second definition of the term militia  is, “a body of citizens organized for military service”. More so, all of the definitions that Webster’s Dictionary provides for the word militia imply a citizenry, not a formal military. Then and now, the term militia explicitly and implicitly has the intent of non-formal, citizenry based defense.

At the time of the writing of this amendment, the term “army” had been clearly used to define the formal, government sanctioned forces that conduct war. Both sides in the Revolutionary War fought with armies. Granted, in the beginning, the colonies used militia and even continued to use militia to denote local bands of fighters not conscripted into the colonial army. If the framers of this amendment had wanted to ensure that only soldiers would bear arms, then they would have used the term “army”.

As we will see in subsequent sections of this article, the Constitutional authors (including the amendments) did use the term army elsewhere, and the meaning of militia here is clear in intent – citizenry, not soldier.

What is most important in the usage of this word, is the clear directive that those who are granted this right are equally granted the right to arm to the level of any army. The 2nd Amendment provides for citizens to arm themselves just like any standing army of any time period. This means:

  • the right to own automatic weapons
  • the right to own silencers
  • the right to own bazookas, rpgs, or even cannons

This list may sound intimidating and scary.  But, how can a citizenry force provide defense if it cannot arm itself as any army of any given time does? It can’t! As we will see later, it is in fact the desire of the authors for the citizenry to arm itself equally to the armies of its government to ensure those governments do not become tyrants.

…Security of a Free State

Next, let’s understand the phrase “necessary to the security of a free state”. At the time of this amendment, this country was far different from how we know it today. The “colonies” were emerging into a collection of “states” under a common “federal” government. They had fought a very bloody and protracted war to throw off the tyrannical despotism of a centralized “federal” (crown) government for freedoms and liberties of its people.

There was a clear paranoia and passion prevalent about preventing a return to any form of this tyranny or despotism. That included any form of a self-imposed tyranny that could evolve from the newly founded federal government. Look at every aspect of the foundation of that federal government. It was constructed from the ground up to prevent such tyranny. Tyranny is any manner or form of excessive, centralized power whether in a man’s hands or a small group’s hands. More so, it was to prevent any single or aggregate despot from emerging ever again and taking mans’ unalienable rights.

Many scholars believe the phrase “security of a free state” is a statement of a state’s rights. A big factor in this belief is that the original language by

Courtesy of theplancollection.com

James Madison was “security of a free country”. This was changed in later revisions to “security of a free state”. However, the implication that there was a clear inclusion of a state’s rights direction is a misbelief. At the time of the writing of this amendment, there is clear evidence that the phraseology “free state” was an idiom to mean “free country”, “free existence”, etc.  Philosophers and political scholars of the time would have influenced the framers. Cato, Hume, Montesquieu, Blackstone, et al regularly used “free state” to denote “land of liberty” or free country.

Why is this important? If the founders had been making explicit references for making guns possession a state’s rights issue, then every state could decide for itself the rights citizens have to own or possess guns. Variations of this have emerged today where you see states, like New York, have laws that seriously infringe on the rights of U.S. citizens to bear arms. Fundamentally, the usage of “security of free state” is a highly important element of the 2nd amendment, as it establishes a 3rd party in the distribution of “rights” discussion. This is opposed to the two-party view we take where we believe either the federal government or the states own “rights”. In fact, the framers of this amendment created a 3rd party construct (just like elsewhere in government) for the ownership of “rights”:  federal, state and citizenry.

In the case of the right to bear arms, the citizenry should own this right in totality. No federal or state body should regulate this “right” in any way.  The “security of a free state” phrase is the establishment of the citizenry as a balance to the ability of both the state and federal entities to become tyrants. 

Please understand, this fact is clearly lost today and not denoted in the constitutional analysis of the 2nd Amendment.

…the Right of the People to…

Many gun control arguments try to imply that having/owning guns a privilege, not a right. When that fails, the discussion begins to emerge about “who” the right to bear arms is granted. Is it soldiers? Is it just people who are trained to defend the country? Is it police? Two key arguments around gun control hinge on whether it is a right and then whom the right is to be given.

This part of the 2nd Amendment is clear.  The “right” phrase explicitly designates in this amendment of the Constitution that what is to follow is a right. Not a partial right, not a privilege, not a sometime right… A RIGHT. Whom is equally clear:  “the people” is encompassing of all people. Not people who are trained, not people who are soldiers, not people who are law enforcement… ALL PEOPLE. In fact, the idiom “the people” explicitly designates the entire population governed under this constitution.

Why is this important? This phrase is critical because it does not place any caveat on the status of “right-hood” nor who. Thus…

Courtesy of memecenter.com

  • It does not constrain the right to “mentally stable” people.
  • It does not constrain the right to people who have never committed a crime.
  • It does not constrain the right to people who pass a background check.

This list could go on and on. The point here is the word “people” is encompassing. We may not like the possibilities in this list, but “people” in the 2nd amendment had no modifier to it. When you combine the explicit designation of “right”, to people, it should require constitutional amendments (only) to limit, restrict or modify this right. The fact that our courts have done so is a gross infringement that only ends in a slippery slope.

…Keep and Bear…

While not much analysis is required for this statement, some key points should be highlighted. Oftentimes, the first point is why the authors felt it was necessary to write “keep and bear”. Why not just “bear” or why not just “keep”? Can one not bear, but keep? Can one not keep, but bear?

This phrase is very telling of the mindset as this amendment was written. Congress and the authors knew this amendment was fundamental and critical to the checks and balances of this country. They, also, knew that for tyranny or despotism to emerge again, then the population would need to be disarmed. Therefore, they knew that this amendment had to be strengthened in every possible way to avoid future revisionist interpretations or watering down (as has occurred).

They took the great care because they did not want someone down the road to say things like:

  • “Well, it says you can bear arms, but that doesn’t mean you can own them”.
  • “Well, it says you can keep arms, but that doesn’t mean you can use them”.

In fact, aside from providing the comprehensive clarity to ownership and usage, this phrase mandates the intent of the authors was that the 2nd Amendment must be as broadly interpreted as possible – at all times.

…shall not be infringed

Courtesy of pinterest.com

Finally, we reach the last phrase. In almost any legal or engineering verbiage, the word “shall” has a very strict interpretation. It means what is being specified must be an invariant. That means this can never be changed, weakened or reduced.

What does infringed mean? Webster’s Dictionary defines it with two meanings: 1) obsolete and 2) encroach. Boiled down, either means changed, modified, weakened, taken away… The list could go on.

With this phrase, the 2nd Amendment cemented the right to exist in totality, completely inviolate and unchangeable. Read that again:  inviolate and unchangeable.  The phrase, “shall not be infringed” makes it clear that the authors wanted no regulations, restrictions, oversight, etc (aka gun control) to this right.

At this point, we have just dissected the verbiage of the 2nd Amendment. To be sure that no other interpretation could exist and (that maybe, just maybe) the words did not actually mean something else, we need to fully review the historical context, times and mindset of the authors and congress at the time. In Part 2 of this analysis in this series, we delve deep into this context and evaluate if the words match.

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