Introduction
This essay is a response to Dominic Erdozain’s One Nation under Guns. I’m going to start out by establishing some background information that will be relevant later.
Citizens United
I’ve spent the last 15 years involved with Wisconsin United To Amend (WIUTA), a non-profit group dedicated to seeking a Constitutional amendment to reverse the regrettable decision of the US Supreme Court in its 2010 decision in Citizens United v. Federal Election Commission that corporations and other artificial entities are included in the Constitution’s meaning of “people” and that their spending on political campaigns is included in the concept of free speech and therefore protected by the 1st Amendment.
As WIUTA’s website (wiuta.org) states:
... a necessary step toward genuine self-governance is to amend the Constitution to make clear that:
• The rights protected in the Constitution are those of individual human beings only
• The spending of money is not speech, and political spending can be limited to allow all Americans to participate in the democratic process
Our mission is to amend the Constitution in order to achieve a government truly of, by, and for the people.
As a result of my involvement in that movement, I’ve spent a fair amount of time on the origins of the Constitution (and its amendments) and the history of Constitutional interpretation. I’ve been particularly interested in the meaning of the term “people” in that context.
Use of the Word “People” in Amendments to the US Constitution
(1) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(2) 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.
(4) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
(9) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
(10) The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
(17) The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
1984
George Orwell’s dystopian novel of a future world divided among 3 oppressive superpowers — Oceania (wherein the novel was set), Eastasia, and Eurasia — features a long-term effort by Big Brother (the dictator of Oceania) to get everyone under his control to use NewSpeak, a language in which, famously:
War is peace.
Freedom is slavery.
Ignorance is strength.
Orwell didn’t just incorporate that idea into the fictional part of the book, he had an extensive non-fiction essay at the end of it explaining the underlying concept, which was to make it very difficult for anyone to express dissent because they couldn’t find words that clearly distinguished what they wanted (like liberty) from what they had (like tyranny). NewSpeak was specifically calculated to enhance ambiguity rather than clarity.
The Prosecutor’s Role
Make no mistake about where Erdozain is coming from. His book is not a dispassionate, even-handed, scholarly analysis of pros and cons of the effects and possible regulations of guns. It’s a polemic. He’s a partisan, an impassioned advocate. If he were a district attorney, he’d be making the strongest case he could that the accused should be found guilty. If that were to happen, he’d be equally ferocious in advocating for the maximum possible sentence. His only mention of arguments opposing his own comes when he thinks he’s found a weakness in them that he can exploit.
Where Did the Revolutionaries Get Their Guns?
Erdozain tries valiantly to make the case that the word “militia” in the 2nd Amendment refers to — and can only mean — use of weapons by the military. This utterly flies in the face of the historical record.
The colonials were a largely rural and agricultural people. It’s estimated that it took 20 farmers to support themselves plus one city dweller. Those farmers regularly supplemented their fields, gardens, and farm animals with wild game — deer, turkeys, wild hogs, geese, rabbits, and squirrels — that they shot themselves, with their own guns. As a result, they got to be very good marksmen. A standard complaint of the British regulars and their Hessian mercenaries during the Revolutionary War was that the colonials “didn’t fight fairly”. To them, organized warfare meant both sides would march in an orderly manner to a battlefield, line up in ranks on opposite sides, and on command all fire in the general direction of the other side, likely hitting something. Those pesky colonials, on the other hand, would wait for a column of troops to be coming up the road, and then some rube would pop out from behind a tree and pick one off — usually the one riding a horse and/or with the most glitter on his uniform.
So where did those rebels get their guns? Not from the American army; the only regular military force in what was to become the United States (ignoring occasional incursions by French troops from Canada) was the British Army. Not from the National Guard armory; there was no such guard, let alone a nation. No, they went to war with their own guns.
So why are people today surprised when the 2nd Amendment refers to “the right of the people to keep and bear arms”? That state of affairs was the personal lived experience of the Founders, who knew that such citizen arms were exactly what won the Revolutionary War.
What Made a Militia, Then?
Consider the motivations of those Founders. The people who approved the Declaration of Independence probably had unanimity on only one thing: getting out from under British rule. And the ones who approved the Constitution were 100% agreed on only one objective: replacing the ineffectual Articles of Confederation with a stronger central government to truly make us the United States of America. On pretty much any other subject you care to name, they had opinions all over the map. That’s why those two documents are considered marvels of compromise.
However, there was one attitude which they came close to all sharing, namely distrust of a standing army. The Constitution mentions an army only once: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”. There’s no way to know for sure, but it’s a reasonable guess that the expectation was that a national army would only be summoned for a crisis of national proportions, and otherwise the individual states could, if they so desired, gin up their own militia forces as needed to address threats from, say, marauding bears, French-Canadian interlopers, Indian attacks, roving gangs of bandits, etc. Or (not at all incidentally) against a future tyrannical national government, akin to the one they had only recently overthrown. The 2nd Amendment starts off by assuring them that the Framers understood that such an ability would remain a right of each individual state, one that they wouldn’t give up just because the national government was now strengthened.
It’s instructive to see what the term “militia” meant at the time the 2nd Amendment was proposed. The Oxford English Dictionary lists meanings of words chronologically, based on when that particular meaning first gained currency. Here’s what it says about “militia”:
3. a. A military force, esp. the body of soldiers in the service of a sovereign or a state; in later use employed in more restricted sense, to denote a “citizen army” as distinguished from a body of mercenaries or professional soldiers
1590 clearly intended to refer to an army
1672 “There be in Ireland, as elsewhere, two Militias; one are the Justices of Peace, their Militia of High and Petty Constables; also the Sheriffs Militia of his Servants and Bailiffs, and Posse Comitatus ... There is also a Protestant Militia, of about 24000 Men.”
1696 Militia: “the People and Inhabitants of a Kingdom trained up in War for the Defence of it.”
1776 Adam Smith, in The Wealth of Nations — The state “may ... oblige either all the citizens of the military age, or a certain number of them, to join in some measure the trade of a soldier to whatever other trade or profession they may happen to carry on. Its military force is (then) said to consist in a militia.”
4. b. U.S. The whole body of men declared by law amenable to military service, whether armed and drilled or not.
1777 “Our troops are all militia, and, although perhaps as good as any militia, yet they are not disciplined.”
1789 Constitution — “Congress shall have power ... to provide for calling forth the militia.”
The idea of a militia simply being individual citizens with their own arms wasn’t (despite Erdozain’s unsupported contentions to the contrary) a latter-day reinterpretation by his bête noire, the National Rifle Association. Here’s what contemporaries had to say about it:
“I ask, sir, what is the militia? It is the whole people.... To disarm the people is the best and most effectual way to enslave them.”
—George Mason, during Virginia’s US Constitution ratification convention, 1788
“A militia when properly formed are in fact the people themselves ... and include all men capable of bearing arms.... To preserve liberty it is essential that the whole body of people always possess arms”
—Richard Henry Lee, Additional Letters From the Federal Farmer 53, 1788
Was this opinion uniformly held by everybody at the time? Probably not. But neither was the reverse. And citations of contemporary opposing viewpoints are notable for their scarcity.
Erdozain pooh-poohs these definitions in the form of a chapter title: “Death by Dictionary”. What he means is “death of my fondly held personal opinion at the hands of people who think that words mean things when I wish they meant something else”.
Finally, here’s what a modern dictionary (Merriam-Webster) says “militia” means:
1 a : a part of the organized armed forces of a country liable to call only in emergency
The militia was called to quell the riot.
b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service
3 : a private group of armed individuals that operates as a paramilitary force and is typically motivated by a political or religious ideology
specifically : such a group that aims to defend individual rights against government authority that is perceived as oppressive
That last bit (Definition 3) leads us out of the realm of history and into current events.
Neo-Militias
What’s a militia in today’s world? Well, these outfits — self-armed, self-proclaimed patriots, who meet and drill regularly — claim that they qualify: 3 Percenters, Boogaloo Bois, Oath Keepers, Patriot Front, Proud Boys, etc. Are they recognized as the modern equivalent of the “militia” spoken of in the 2nd Amendment? Not at the moment. But how long before any of them make just that case in a legal setting? And it gets run up to our current Subprime Court? Which looks (as they always claim to do) at the “original intent” of the Constitution and says “Yeah, that seems right. You’re militias as they were understood in 1789. Keep on truckin’. But the rest of you, those who aren’t in one of those militias, you don’t have any right under the 2nd Amendment to own guns, so turn ’em in!”.
The Revisionism of the Heller Decision
As Wikipedia says of the 2008 Supreme Court ruling in District of Columbia v. Heller, the 2nd Amendment ...
protects an individual’s right to keep and bear arms for traditionally lawful purposes such as self-defense within the home, and that the District of Columbia’s handgun ban and requirement that lawfully owned rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock” violated this guarantee. It also stated that the right to bear arms is not unlimited and that certain restrictions on guns and gun ownership were permissible. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense or whether the right was only intended for state militias.
Erdozain contends that Heller got it wrong because it was revisionist. It purported to find an individual right to gun ownership which hadn’t ever existed since the 2nd Amendment was ratified in 1791. Why did it take 217 years, he wonders, for that interpretation to be recognized? Well, that’s one way to spin it. A different way to spin it is that it took 217 years to challenge that interpretation. Who’s actually doing the revisionism here?
The Straight Dope on the 2nd Amendment
Cecil Adams, the pen name of an essayist who claimed to know everything worth knowing, wrote a regular weekly newspaper column for the Chicago Reader called “The Straight Dope”. In 1995 he responded to a question about what the 2nd Amendment really means by saying that it seemed to him that it meant pretty much what it said it did. One reader took exception to his analysis, resulting in the following exchange, which I’ve scanned out of my local alternative weekly, Isthmus.
Why is it that Cecil Adams [2/24/1995], as well as the NRA, have different copies of the United States Constitution from my own? The Second Amendment in my own library clearly starts out with the words “A well-regulated militia.... “ What is well-regulated about a private citizen with a stash of guns in his basement? The opening words of this amendment seem to clearly indicate that the possession of guns was not meant to be beyond control. —Ed Cohen, Chicago
Let’s put it this way: It was not meant to be beyond regulation. The question is whether the power to regulate encompasses the power to ban. So far as guns are concerned, the courts have held that it does. You may say outlawing guns altogether was not what you had in mind. But it’s certainly what some people have in mind, at least with respect to broad categories of firearms such as handguns, and a few would happily prohibit guns, period. Federal case law currently offers virtually no protection against such draconian measures. [Note: This was written in 1995. The Heller case was decided in 2008.]
Put yourself in a gun owner’s shoes. While the first half of the Second Amendment is no miracle of clarity, the second half is about as plain as it can be. “The right of the people to keep and bear arms shall not be infringed.” But gun-control advocates deny this sentence means what it seems perfectly evident it says, and the courts have backed them up. Gun owners’ recognition that one of their most cherished rights has been interpreted out of existence accounts for the apocalyptic tone in which their arguments are often framed.
But let’s get back to “well-regulated”. A number of serious scholars have disputed the idea that this phrase necessarily means “subject to a lot of regulations”. The historian Robert Shalhope, for example, makes a good case that for the framers it meant “duly constituted” — that is, subject to civilian authority. The framers, in other words, did not propose to have armed gangs of self-appointed militiamen roaming the streets. Some take Shalhope’s argument a step further and say that “well-regulated” applies only to the militia and does not constrain an individual’s right to keep and bear arms in any way. A more reasonable interpretation, however, is that if the government can regulate the militia it can regulate the individuals in it, provided it does so in a way that does not make a shambles of their basic Second Amendment rights. For that reason I think even if the amendment had been interpreted more in line with the framers’ intent, the regulatory landscape would not necessarily look a lot different from the way it does now [1995]. But it’s silly to think the framers would guarantee a right in one half of the Second Amendment only to allow the government to unguarantee it in the other half.
However odd it strikes us today, the framers regarded private gun ownership as one of the pillars of their liberty. They had recently defeated one of the most powerful nations in the world using an army that in the early going had consisted of amateur soldiers using their own weapons. They considered these citizen militias vastly preferable to standing armies, which in their experience had been instruments of oppression. They also had no professional police force upon which to depend for defense of their lives and property. It seemed natural to them that ordinary folk should have the right to own guns.
That was then, you may say, and this is now. In the 1990s it may well be foolish, as a matter of public policy, to allow law-abiding private citizens to own guns (although I’m not persuaded this is so). But it seems pretty clear that’s what the founders intended, and it eats at the heart of the constitutional process to simply wave that right away. No one doubts today that slavery is bad, but the Constitution as written permitted it, and a duly ratified amendment was required to put the matter right. Likewise we should concede that the Second Amendment means what it seems to mean, and that if we want to control guns to the point of prohibition, amending the amendment is the honest thing to do.
A Horrifying “Legal Principle”
One thing which Erdozain advocates that should scare the living daylights out of anyone concerned with human rights and liberty is the insidious and pernicious legal doctrine of a “collective right”. He says that as long as some people can keep and bear arms, society as a whole has upheld that right. Collectively “we” own guns.
Stop and think about that for a moment. As long as some people don’t have to quarter troops in their homes, that collective right under the 3rd Amendment is still in effect, right? As long as some people are “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, that collective right under the 4th Amendment still goes, yes? As long as some people “enjoy the right to a speedy and public trial ... by an impartial jury [and] have the Assistance of Counsel”, that collective right under the 6th Amendment is still just hunky-dory, OK?
A right which doesn’t apply to individuals should be called by its proper name: a privilege. But what our Bill of Rights guarantees is individual, personal rights! And the horrifying concept of a “collective right” needs to be stopped dead in its tracks before anyone thinks to apply it elsewhere.
But No Downside, Surely!
Well, even if it’s really stretching the Constitution, and even granting that we could somehow manage the logistical challenge of rounding up all the privately owned guns in a nation where they outnumber people (especially given that those very people would be highly resistant to such rounding up), wouldn’t it be worth it? Wouldn’t we all be better off? Surely there’s no downside, right?
Well, glad you asked. A Milwaukee-based organization called Jews for the Preservation of Firearms Ownership (JPFO) was founded by relatives of Holocaust victims and has dedicated itself to the principle of “never again”. It has put together the following timelines of the genocides of the 20th Century (in which “GCL Enact” refers to the dates on which gun-control laws were enacted):
Nation or Region GCL Enact Genocide Nature of Victims Deaths
Ottoman Turkey 1866, 1911 1915-1917 Armenians (mostly Christians) 1-1.5M
Soviet Union 1929 1929-1945 political opponents, farming communities 20M
Nazified Europe 1928, 1938 1933-1945 Jews, Gypsies, political opponents 20M
China, Nationalist 1914, 1935 1927-1949 political opponents, army conscripts 10M
China, Communist 1951, 1957 1949-1976 “counter-revolutionaries”, rural populations 20-35M
Guatemala 1871, 1964 1960-1981 Maya Indians, political opponents 100-200K
Uganda 1955, 1970 1971-1979 Christians, political opponents 300K
Cambodia (Khmer) 1938 1975-1979 educated persons, political opponents 2M
Rwanda 1979 1994 Tutsi people 800K
Now, to be fair, there are plenty of civilized countries that have strict gun-control laws that have never and probably will never experience genocide, so JPFO isn’t contending that there’s an inevitable cause-effect relationship between the two.
But there’s an important distinction to be made. The places where gun-control laws have been effective are healthy, thriving democracies. The places where the genocides occurred were horrible authoritarian dictatorships. Surely the USA is more akin to the former than the latter! And, indeed, for our first 249 years that’s been the case. So far.
So Is This Just a Lost Cause?
I hope I’ve made a successful case that Erdozain’s contention that the 2nd Amendment is a dead letter is dead wrong. Even if I haven’t, let’s get real about the likelihood that (1) any court in America is going rule it to be such, (2) Congress will ever amend it as Cecil Adams suggested, or (3) least of all that it’s ever going to be repealed. Let’s not kid ourselves: none of that is going to happen!
Does that mean we can do nothing? Far from it! I have no quarrel or quibble with Erdozain’s recitation of the appalling toll that gun violence is taking on our country. Regardless of what I think of his legal misanalysis, he’s made a powerful factual case that some sort of action is needed. The question before us is a practical one: What’ll work?
Well, the very Heller decision that he criticizes lays out a pathway: it “also stated that the right to bear arms is not unlimited and that certain restrictions on guns and gun ownership were permissible.”
And this mirrors my own take on the subject. While I’m probably as close as you’ll get to a free-speech absolutist, I recognize that there are exceptions to it. The ones recognized in legal precedents are:
• memorably, “The most stringent protection of free speech would not protect a man in falsely shouting ‘Fire!’ in a theatre and causing a panic.” —Justice Oliver Wendell Holmes Jr., Schenck v. United States (1919)
• incitement to riot
• slander or defamation
• fighting words (likely to provoke a violent response)
Similarly, there are exceptions to freedom of the press. These things may be prohibited (or punished if and when they occur):
• child pornography
• information that could harm national security, such as classified information or military secrets
• violations of personal privacy, such as medical records or private financial information
• copyrighted material without permission from the copyright holder
And, somewhat to my surprise, I recently learned that there were legal rulings about exceptions to the 14th Amendment’s guarantee that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States ...” It turns out that this doesn’t apply to children born to:
• foreign nationals serving in diplomatic missions
• members of invading military forces (not that this has been a problem since 1814)
Anyway, the take-home point is that, even if a right is guaranteed in the US Constitution (as I contend the right to keep and bear arms is), it’s not absolute; it’s not unlimited; it’s not without exceptions. Indeed, that Supreme Court has already ruled as much in the case of the 2nd Amendment. In 1939’s decision in United States v. Miller, the Supreme Court ruled that the government may prohibit machine guns and sawed-off shotguns.
So it seems to me that this is the route most likely to produce real improvement. Don’t just pretend the 2nd Amendment is useless, obsolete, meaningless, a dead letter, etc. Not only are you on extremely shaky legal and historical ground, you’re just butting your head against a stone wall and alienating people who are potential allies in that they too abhor the carnage of gun violence but aren’t about to side with you if they think you’re advocating gun confiscation. Instead focus on what we have in common: good-sense measures to identify exceptions to the 2nd Amendment. (Note that I said “good” sense, not “common” sense, because there’s not much common about it.)
Support red-flag laws that’ll keep guns out of the hands of dangerous people. (We already do this in the case of people convicted of violent crimes who’ve served their time.) Widen the sorts of people we should be concerned about to include anyone who’s made threats of violence. I’d add in anyone who’s ever been convicted of drunken driving more than twice. I’m sure you can think of others.
Support limitations on the kinds of guns people can have. Semi-automatic weapons (one shot per trigger pull) are probably not going to get nixed, but full-auto ones (continuous stream of bullets per trigger pull) should be, and it’s probably doable. Snub-nose automatics? Yeah, those too.
Support licensing and registration of gun dealers and make it an offense to transfer any firearm without going thru an officially approved and documented procedure, including a background check (based on those red-flag laws) and a waiting period.
Just as there’s a danger in declaring that constitutional guarantees of rights can be ignored or considered null and void in their entirety, so too is there a danger in opening the floodgates to exceptions that kill them off via a death of a thousand cuts. A dictatorial regime could find ways to treat almost all gun ownership as an exception to the 2nd Amendment. At this point in history, that seems to me to be the lesser concern.
During the Great Depression, the Roosevelt administration faced a hostile Supreme Court that persisted in ruling almost all of FDR’s innovative New Deal programs to be an unconstitutional overreach of federal power. Undaunted, Roosevelt and his allies in Congress just kept passing variations on them, new programs which remained in effect until new cases could wend their time-consuming way up the judicial ladder until they too were shot down. But in the meantime, they delivered! The same tactic could work with gun regulation if we can convince Congress to play along. And, even if Congress doesn’t prove amenable, there are 50 different state legislatures that can keep plugging away, passing one law after another that’ll be in effect (and saving lives) until a court gets around to ruling against them.
But regulating guns, fraught as it is with obstacles, is only one avenue we can pursue. There are others that don’t involve direct confrontations with the 2nd Amendment.
Support strong mental-health resources all across the country to provide assistance to people who are desperate for help but not getting it, so they turn to acting out instead of crying out.
Support programs in our public schools that teach responsible gun use the same way we promote responsible driving or how to use kitchen appliances.
Support everyone from city parks and recreation departments to the Boy Scouts to Ducks Unlimited and the National Wildlife Federation in setting up rifle ranges where teenagers could learn first-hand how to use guns properly — and, not at all incidentally, safely.
Support buy-back programs in which people can turn in their guns for cash — and not some piddly token amount, either, but something approximating their actual value.
Imaginative people can think of other things, but not if they’re off beating the dead horse of trying to invalidate the 2nd Amendment.
And geez, people, get rid of your obsession over whether concealed carry is a good thing or a bad thing. I’ve seen opponents of gun violence come down on both sides of the issue. If it were up to me, I’d just confine my attention to whether a person had a gun or not, regardless of whether I could see it.
Wisconsin Elected Officials on Guns
Quotations from a Capital Times article on gun control after the shooting at Abundant Life School.
“I'm a responsible gun owner and a representative of a state which has a proud sporting tradition, including hunting,” said U.S. Sen. Tammy Baldwin, D-Madison. “But I also understand that commonsense gun safety laws do not violate the Second Amendment. In fact, they save lives.”
Assembly Speaker Robin Vos told the Cap Times he thinks Wisconsin’s existing gun laws are “adequate” — he instead pointed to the need to continue to address mental health in schools.
“It seems like, whenever I read about (shootings) in other places, or even in Wisconsin, it usually has some similarities. It is usually someone who’s mentally troubled, right, who has had either been bullied or challenged,” Vos said. “So it seems to me, like very often it’s not access to the gun, it’s access to services that would be a better antidote or a better solution for what we need to look at now.”
Well, let’s take them both up on it. Let’s support Sen. Baldwin’s efforts at sensible gun controls. And let’s remind Rep. Vos, time and time again, when adequate state funding for mental health comes up, that if he isn’t strongly supportive of it, by his own standards he’s in favor of more gun violence.
A Few Parting Remarks
“I like taking guns away early. Take the guns first, go through due process second.” —Donald J. Trump, 2018 Feb. 28
“When it comes to 45s, I’m much fonder of the kind you can dance to than the kind you can die to.” —Richard S. Russell, opinionated American
