Ok, fair enough, here is my analysis:
I start off by noting that I do not own a firearm, have not fired a firearm, have not handled a loaded firearm, and have no desire or intention to do so. This is not because of any antipathy based on morality, but simply because I am so generally klutzy that I doubt my ability to safely handle a firearm (you should see what I did to my hand with a simple curved pruning saw last Xmas). I am not anti-gun, or anti-military, but am not particularly pro-gun or pro-war, either. Because of my lack of personal use of firearms, I like to think of my views as nice and detached where they are concerned, lacking any emotional investment in the issue, so to speak.
To start with, the Second Amendment means exactly what it says. It was intended by the authors as well as the legislators who initially approved it as an anti-gun-control measure. It tells the federal government that it is prohibited from preventing ownership and use of guns by the individuals living within its borders. What part of “the right of the people to keep and bear arms shall not be infringed,” is really ambiguous?
This understanding is supported by both the plain wording and the historical background to the amendment. The reference in the Amendment to the neccessity of a “well-regulated militia” makes clear the intent behind preventing the federal government from restricting gun ownership. Lack of ownership means lack of ability to put together a militia that can train and act independently of the federal government. For historical reasons, the people who ran the country in the late 18th century were wary of attempts by central government to prevent the formation and use of militias.
England had, for some 700 years prior to our revolution, struggled with a tension between two different systems of providing for the defense of the realm. I’m going to be brief, at the risk of inviting criticism for over-simplification; anyone who wants to discuss the ins and outs of the situation is free to engage me outside this thread. The old Anglo-Saxon method was to round up all the able-bodied men, who grabbed what weapons they could, and marshall them into a fighting force as needed (the fyrd). The more modern Norman method was for the king to use his retainers, who were required to provide a certain number of fighting men for a certain period of time as a condition of living on the various large tracts of land granted to them by the king. These two methods were both developed and extended from the 12th through 16th centuries. The problem with the use of the fyrd, or militia, was twofold: usually, they were very unskilled, as well as under-equipped; conversely, if they became well-equipped and well-trained, they became a threat to the established powers that be. Given the history of occaisionally sending an English king into early retirement, so to speak, kings were loathe to allow a strong militia to exist. The problem with reliance on the king and his retainers was also twofold: first, the king might be, and often was, roaming all over France, leaving England open to invasion (especially by those nasties, the Scots), and second, the king with his wealth could often buy a military for use in imposing his will upon the land in a dispute with the people (note that the king wasn’t the only one who would resort to this; the nobles invited Louis of France in to deal with King John, for instance).
In the 17th century, this tension came to a dramatic collision of opposing forces. During the nearly 100 years of effort by the people of England to deal with the Stuart regime (resulting in one decapitation and one unceremonious kicking-out), the crown as part of its attempt at personal rule tried repeatedly to restrict ownership and use of firearms (at the time mostly muskets). There were efforts to restrict gun manufacture, efforts to restrict ammunition manufacture, efforts to restrict gunpowder manufacture, as well as efforts to restrict ownership and use of each of these items. The Civil War that started in 1642 was fought in large part between Charles I and the military forces of his retainers on the one side, and the various militias, eventually unified into the Model Army, on the other. (yes, yes, over-simplification, but roughly accurate, enough for our purpose). Similar tensions existed at the time of the Glorious Revolution of 1688 (one of James II’s disliked efforts was the institution of a standing army, which he figured he could bankroll through proxies, avoiding the need of Parliamentary monetary grants). So, the newly independent colonies had a very fresh memory in 1789 of the dangers of a strong central governing tyrrany attempting to restrict the power of the people by preventing the formation of militias.
They also, of course, had their own history of troubles with the militia issue. During the course of the run-up to the American Revolution, there were numerous attempts by the ruling hierarchy to limit the ability of the colonists to create, maintain, and train militias. Many of the same types of control were utilized, including restrictions on ownership and use of firearms. Recall that the spark that finally turned the resistance into armed rebellion was an attempt by the British to secure an armory of weapons at Concord, Massachussetts. So there was an added understanding of the importance of having a trained band of armed men, which neccessitates either a standing army, or relatively common firearm ownership.
But, it is important to understand that this philosophical debate of the 18th century isn’t intended primarily to support the notion of armed rebellion against “tyrrany.” The main debate is one of how to best provide for a defence against aggression by an exterior force. Reliance on a militia reduces cost in times of peace, and limits the ability of the government to engage in hostile foreign action. Had the English kings been forced to rely on the fyrd, they would not have had the ability to attempt the conquest of France, a task which occupied the crown off and on for roughly 400 years. Part of the reason for the effort of the Stuart monarchs to establish a standing professional army was so that it could be used in Europe to support the efforts of the French and Spanish monarchs in suppressing Protestant military actions, which policies were unpopular in England. A modern example of what a standing army can enable is the just finished war in Iraq, impossible to have been contemplated had we been forced to raise a trained fighting force from a collection of state militias. Thus, the issue of militia versus standing army has both financial and foreign policy implications.
In revewing the import of the above paragraph, please keep in mind that a “standing” army and a “professional” army are not the same thing. As an example, America had a “professional” army in 1861, but it did not by any matter of means have a “standing” army, i.e. a body of fighting men already constituted and ready to fight a significant armed conflict. The first battles of the Civil War were fought between companies of men who composed what could best be considered the “militia” of the various states, though by that time there was much less effort at maintaining a competent militia, as evidenced by the woeful efforts of the first year of fighting. America did not have a “standing” army in 1789, though it did have a small “professional” army.
So, we see that historically, the people in charge in 1789 were determined to make certain that militia could exist, worried that the federal government might be induced to reduce the reliance on militia, resulting in efforts to restrict firearm ownership and use. This, they felt, would put the states at risk, both from external aggressors as well as tyrranical central authority. So, they passed an amendment that precluded the central government from “infringing” the right of the people to own guns.
Fast forward to 2003. What is the current status of the Amendment? What does it mean, and what, if anything, should it mean?
The current status is this: a. the Amendment applies only to the federal government action, not state action or individual action (Presser v. Illinois, 116 U.S. 252, 265 (1886); United States v. Cruikshank, 92 U.S. 542 (1875)); b. the Supreme Court has only once ruled on a federal attempt to limit gun ownership, ruling that the amendment allows an individual right to ownership only to the extent it allows a state to establish a well-regulated militia (United States v. Miller, 307 U.S. 174 (1939)), and declining as a result to bar the federal government from prosecuting a gang member for ownership of a sawed-off shotgun, and; c. no one appears to have seriously tested the extent to which such an interpretation applies to modern issues such as registration, background checks, bans on manufacture and import, etc.
Miller is an interesting read. The procedural history of the case is important to understand when trying to wrestle the extent of the decision to the ground. The defendant in the case, Miller, interposed a demurrer to the indictment that he had transported a firearm across state lines without properly registering it. The demurrer asserted, inter alia, that the provision of federal law in question violated the Second Amendment. The district court judge accepted this argument, granted the demurrer, and quashed the indictment. Miller, being no dummy, promptly took off, as I recall. The decision was appealed directly to the Supreme Court, which took it on appeal. At the hearing on the appeal, there was no appearance on behalf of the defendant, so no one presented any support to the Supreme Court of the assertion that the Second Amendment was violated by the National Firearms Act of 1934. The Court in its opinion cites a considerable amount of literature to support its determination that the militia is an organized band of all able-bodied men, who are supposed to supply the arms commonly in use by fighting soldiers of the time. The Court then notes that it has no evidence supporting the notion that a sawed-off shotgun "is any part of the ordinary military equipment or that its use could contribute to the common defense. " So it reverses the judgment and remands for further procedings. To what extent the ruling would have differed had the defendants still been participating in the proceedings is unknown. One suspects the Supreme Court in 1939 was unlikely to impede an effort by the federal government to reign in organized crime.
But the decision in Miller creates problems for both “sides” of the gun-control issue. On the one hand, the conclusion of the Court that the “right” embodied in the Second Amendment extends only to the possession of arms neccessary to participate effectively in a militia allows the federal government considerable scope to regulate such items as hand guns, shot guns, explosives, etc. On the other hand, in today’s world, fighting men use increasingly sophisticated items of weaponry. Does Miller allow the average Joe to obtain shoulder-fired anti-aircraft missiles, modern versions of laser-sighted automatic weapons, or other such “firearms”, on the theory that such items are being used worldwide by all the best-dressed soldiers?
Ever since World War II, the nature of fighting in the world has changed dramatically. Prior to that war, wars were fought, in essence, but people pointing bigger and bigger “guns” at each other and shooting until one side or the other obtained whatever objective resulted in stopping the shooting. Although WWI had introduced some variations that didn’t fit this scheme (airplanes, tanks, gas, e.g.), most of that war was a lot of men on one side firing guns at a lot of men on the other side. One could still conceive of a “militia” providing a substantially successful defence of the United States in the event of either an external attack or an attempt at internal tyranny. But WWII changed that. Wars are now increasingly fought between forces which attempt to utilize technological advances in weaponry to obtain military objectives. It is inconceivable to believe that a militia could withstand the sort of attack America unleashed on Iraq. In light of this, application of a definition of the right embodied in the Second Amendment based upon the notion of well-drilled citizen soldiers with their muzzle-loading rifles to the current situation is bound to create untenable results.
In my opinion, the current status of military efforts precludes the need for a “militia.” Frankly, states long since have concurred. Militia, to be effective, usually required state support through both financial efforts and legislative efforts, such as requiring all able-bodied men to own and train with weapons. These days, the concept of requiring every person to own and be able to use a weapon in a militia is a bit beyond reality. Thus, the decision in Miller probably ought to be revisited. Indeed, it would probably be wise to amend the amendment, eliminating the anachronistic reference to a “well-regulated militia.”
Does that mean the Second Amendment should be eliminated? This is much less clear. Current events in Iraq and, especially, Afghanistan show that the concept behind the Amendment may still have significant life. Part of the difficulty the United States is having in implimenting the institution of an American-friendly democratic government in these countries has to do with private weapons ownership. Indeed, I see that in each country, the United States is attempting to institute gun controls, restricting or eliminating private gun ownership, ostensibly to “stabilize” the situations. To what extent should the United States, or any other external power, no matter how benign its intent, be able to impose a government on a people through threat of military force? If the people of Afghanistan, through use of private weaponry, are able to successfully resist the introduction of an unpopular government, isn’t that exactly the second theme of the Second Amendment?
One final note: in discussing the Second Amendment, it is useful if people avoid discussion of issues relating to the desireability of gun control in general. Reduction of crime versus resistance to criminals is an issue totally unrelated to the right embodied in the amendment. IF society finds it desireable to restrict or otherwise infringe upon gun ownership, THEN it needs to confront the issue of whether the method chosen is allowed by the Second Amendment. Failure to secure a separation of these two issues leads to highly emotional debate that rarely advances an understanding of how to deal with the legal issues presented.
NOT that I have any strong opinions on the subject…
Lies, Damn Lies, and Statistics, as they say.