Re-reinterpreting our constitutional right to bear arms

"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."

Two people can read the Second Amendment of the U.S. Constitution and walk away with very different interpretations. The first person believes the amendment prohibits the government from preventing any citizen from owning and carrying any weapon of any kind. The second person concludes that the amendment creates a more-restrictive right, one that is reserved for the states and intended to apply specifically to citizens who are members of a well-regulated militia, the principal goal of which is to secure our free State against the threat of a standing army.

Until 2008, the controlling Supreme Court case on the interpretation of the Second Amendment was United States v. Miller, 307 U.S. 174, which was decided in 1939. That case let stand a ban on the possession of sawed-off shotguns, as stipulated in the National Firearms Act of 1934. In doing so, the court adopted the “collective rights theory,” which holds that “the Framers intended only to restrict Congress from legislating away a state's right to self-defense,” as explained by Cornell University Law School’s Legal Information Institute.

Under the collective rights theory, a local, state, or federal law prohibiting or restricting the right of an individual to keep and bear arms would not be prima facie unconstitutional. This interpretation focuses on the first four words of the Second Amendment: “A well regulated militia.” Its followers believe there is no individual right to possess firearms. Instead, the amendment is intended to ensure an effective military to defend the states.

The conflicting interpretation, which is referred to as the "individual right theory," won the favor of the Supreme Court in the 2008 decision District of Columbia v. Heller, 554 U.S. 570. In Heller, the court ruled that Washington, D.C.’s handgun ban violated the Second Amendment. The 5-4 majority found that Miller was an allowable exception because there is no law-abiding purpose for an individual owning a sawed-off shotgun.

What was reinterpreted once can be reinterpreted again

So maybe the Second Amendment isn’t as clearly written as it could be. The Supreme Court exists in large part to decide which of various conflicting interpretations of ambiguities in our Constitution will govern in specific circumstances. For example, it wasn’t until Katz v. United States, 389 U.S. 347, in 1967 that tapping a telephone without a warrant was ruled a violation of the Fourth Amendment’s prohibition against unlawful (warrantless) searches and seizures.

These and other ambiguous passages in the Constitution may have been the Framer’s way of future-proofing the document, whether they did so knowingly or unknowingly. As Brandeis University’s Andreas Teuber writes in 1988’s Original Intent or How Does the Constitution Mean?:
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“[T]he Framers drafted the text in such a way as to leave little trace of their concrete proposals or substantive intentions. This feature of its construction is, in part, what makes the Constitution so special and enduring; and how it has come to have so many readers. It's also a feature it shares with the Ten Commandments.”

Determining what the Framers meant by ‘well regulated’

An entry by Daniel A. Schultz on the ‘Lectric Law Library explains that “well regulated” has a much different meaning today than the phrase did when the Constitution was written. Today, “regulated” is construed as “managed” and “controlled.” In those days “regulated” was synonymous with “organized” and “effective.”

Looking at the earliest interpretations of the Second Amendment, Schultz writes that the original intention was to serve as “a check on the standing army, which the Constitution gave the Congress the power to ‘raise and support.’” The 10 amendments comprising the Bill of Rights were proscriptions directed at the government, explicitly stating what the government could not do. It’s “incongruous,” according to Schultz, to believe the Second Amendment does a 180 and grants a power to the national government.

It helps to remember that the Framers had just fought a war to win the rights they were attempting to codify. They considered everyone who could bear an arm as a potential militia member. Likewise, the Second Amendment’s description of a “right of the people” rather than of the states argues against the collective rights theory confining the right to the states. In a nutshell, this is the direction the Supreme Court went in Heller.

However, Schultz goes way off the track when he claims all the gun owners in the U.S. are “ready to form militias that would be well trained, self-regulated and disciplined.” Statements like this make me wonder what country Schultz lives in, because by no stretch of the imagination can I envision any such assemblage in the United States as constituting a force able to defeat a trained, equipped standing army, whether that army’s from Russia or Bermuda.

A modest proposal: Bring back militias

If we really want to abide by the intent of the Framers, we would require that the citizenry form a militia – apart and separate from the standing army. After all, you can’t have a secure, free state without one, according to the Foundings. But c’mon, the only way to fight an army is with an army. If it is necessary for the citizenry to form an army with a reasonable chance of defeating another modern army, you need millions of residents living in a constant state of readiness. Not to mention an air force. And a navy. And a nuclear arsenal.

The Second Amendment’s original intention is pointless in every modern context. What practical good would a militia -- in an early 19th century sense -- be today? What’s the purpose today of telling the national government it must not prohibit the right of individuals to bear arms so that they may form militias capable of protecting our democracy by defeating a standing army?

Rather than attempting to undercut a right the Constitution grants to the people in the Second Amendment, the national government should require gun owners to be prepared to form a well-organized militia. It could be considered a part of the cost of owning a weapon: You have accepted the responsibility to be ready to use that weapon in defense of the Constitution as a member of a militia that’s ready to form at the drop of a hat.
Kind of a cross between the National Guard and Oprah’s book club.

Think of the social possibilities! You want to get people involved with their neighbors? Nothing beats being bunkmates for six weeks of basic training, not to mention all that target practice and all those war games. Fun for the whole family!

Then again, the rich people that really run the show might not be receptive to giving tens of millions of poor people the full gamut of modern weaponry. It could give the more downtrodden among us ideas. Something like Robin Hood, only different.

All I know is, the Fourth of July would never be the same.

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