On the Second Amendment and Firearms Ownership

Re:  The Second Amendment

1) Let’s make it clear that the Founders intend for the Right to Bear Arms to be *both* an individual and a collective right.  The individual has the right to have firearms for self-defense and for sustenance [hunting].  The States have the right to create militias to enforce the laws and to provide for defense of the community from external and internal threats – including rebellion and insurrection, which leads us to…

2)  The Second Amendment *does not* enshrine a right of revolution, rebellion, or insurrection.  This is one of the most common myths floating around out there.  It would be illogical [and unwise] for a government to provide for its own destruction through force of arms.  Instead, the Constitution of 1789 provides for multiple mechanisms to change the government:  by legislation; by election; by Amendment; and by calling a Constitutional Convention.  The Constitution also provides that a Constitutional Convention may be called by either the States or by the People directly through some sort of undefined convention system.  A Constitutional Convention – despite language that it is only to propose amendments – is considered to the power to completely rewrite the government as the Convention of 1789 did with the Article of Confederation.  We have never had a Con. Con., though we came close in 1986 [over the issue of a Balanced Budget Amendment].

3)  There is a natural right to revolution against tyranny, but this is not a legal right.  First, in a participatory democratic and free republic such as ours, members of the society who are able to meaningfully participate in that democracy have *no* right of revolution at all.  Only those classes that are not afforded the protection of law or who do not have the right to participate [i.e. vote] have a natural right of revolution.  Thus, blacks prior to 1866 – and maybe before 1964, at least in the segregationist states – had a right to revolution.  Also, women prior to being given the right to vote would have also been within their natural rights to rebellion.  The question of whether these revolutions would have been successful leads us to…

4)  If a group uses its natural right of revolution, it had darn well better win or, if it loses, had better pray that the victors are charitable.  Early in the days of the Republic, the new federal government faced the Whiskey Rebellion.  President Washington’s government took a peaceful route and attempted to negotiate with the rebels.  When that failed, Federal Marshall’s were sent in to enforce the tax laws the rebels were protesting.  Upon successfully quelling the Whiskey Rebellion, Washington’s administration elected to not prosecute the rebels and, when the State of Pennsylvania did, President Washington pardoned those convicted.

Following the Civil War, President Lincoln urged a peaceful reconciliation using the famous phrase “With charity towards all and malice towards none.”  Following his assassination, President Johnson followed this and was nearly impeached by the Radical Republicans in Congress who wanted to see the Confederate Rebels punished.  In fact, only one Confederate was found guilty of treason – the commander of the infamous Andersonville Prison where thousands of Union soldiers died from horrible neglect.

5)  All rights and liberties have bounds and the question of what those bounds are may change over time.  For instance, it used to be that pornography was illegal, but now is generally considered protected by the First Amendment – a case of loosing of bounds.  A reverse situation can be found following the Fourteenth Amendment when the U.S. Supreme Court essentially gutted the protections and privileges of that Amendment – without major protest or opposition from either of the other branches nor from the State government.  This castration of the Fourteenth Amendment lasted until the New Deal and was finally ended in the wake of the Civil Rights Act of 1964.

6)  The Constitution says that the State’s may have militias, but subject to rules established by Congress.  A counter-check is given to the States in that the States appoints the officers of the militia.  Also, the Federal government may call upon the militias.  Thus, if a State attempted to rebel using its militia, the Federal government may simply call that militia into service to suppress the rebellion.  Of course, the members of that militia and its officers may attempt to ignore such an order which is really what caused the Secession Crisis of the Winter of 1860/1861 to become a full blown war.  We are taught about Fort Sumter, but in other places Federal troops refused to acquiesce to State demands to surrender Federal forts.  In Texas, Governor Sam Houston resigned rather than attempt to order the State militia to move upon Federal property.

A more recent example is when President Eisenhower called upon the Arkansas National Guard [the National Guard is the modern version of the militia] to enforce the Supreme Court rulings on desegregation.  Fortunately that situation did not devolve into a Second Civil War [on a side note, perhaps if the United States did not have the Soviet Union as our Cold War enemy at the time, the desegregation movement could have become a Second Civil War].

7)  Following the National Guard Act of 1910 (I think), the militias were restructured into two groups – the Structured and Unstructured.  The Structured is the active members of the National Guard that we are most familiar with.  The Unstructured National Guard though included *every* able-bodied and able-minded male citizen between the ages of 18 and 45 who were not conscientious objectors.  Today, in light of Supreme Court case law regarding gender equality, I think it can be argued that every citizen [and perhaps even resident] of the United States, fit in mind and body, is a part of the Unstructured National Guard – unless they have a legitimate conscientious objection to service.

This is one of the theories behind why a military draft is constitutional.  Indeed, if a crisis is severe enough, the qualifications may be expanded to include teenagers and people over 45.  Also, conscientious objectors may be called into non-combat service as happened in WW I and WW II.  Further, those who are not physically fit for combat service [what they used to label as 4-F] may still be drafted to perform essential non-combat service within their capabilities.  For instance, if the U.S. had had to invade Japan in late 1945/early 1946 as had been planned, there were provisions for 4-F recruits to be brought in to serve as support staff and, if manpower shortages were affecting industry, to be compelled to serve in vital industries.

8)  Historically, prior to the American Revolution, many colonies made it an affirmative duty for every male citizen to be prepared for militia service by keeping various lists of equipment – including firearms and ammunition.  If a person had religious objections or refused to participate, they were fined and ordered to pay to provide the equipment to someone who could not afford the necessary equipment themselves.

9)  In light of all of this, it is clear that Congress and the Federal Government may create reasonable restrictions on the right to bear arms by creating rules to delineate what it means to be a member of the militia and who is qualified to be in the militia.  Also, State governments may limit what type of weapons may be used for the right of sustenance and when that right may be used.  Thus, we have laws creating hunting seasons and forbidding such things as crossbows or spearfishing by non-tribal individuals.

10)  In one of the few cases dealing with the Second Amendment, the U.S. Supreme Court ruled in the Miller case way back in the 1930s that government may forbid the use possession of a sawed-off shotgun as it was not a weapon one would normally expect to see in military service as standard issue.  Indeed, the Geneva Conventions specifically banned shotguns.  At the time of the Miller case, standard issue weaponry was a rifle and, if an officer, a pistol.

So, what are reasonable boundaries for the right to bear arms considering all of the above?  I propose the following.

• Firearm ownership would be mandatory for all qualified citizens pursuant to the duty to be a member of the militia.  That would be those of able-mind, over the age of 18, and not conscientious objectors.  If a cons. obj. then they must pay a fine to support training and production.  Notice that I do not included “able-bodied” as a restriction.  The right to self-defense and the right to hunt should not be limited merely due to physical handicap.  As to those under 18, their right to hunt can be protected by requiring a training program but limiting their right to possess fire-arms to only those used in hunting and in the presence of a qualified adult.

• Every member of the militia would be subject to a period of initial education and training using a nation-wide standardized certification program.  I imagine that this could be done by members of the military or by law enforcement.

• Prior to this training, candidates would be subject to a background check.  Prior felony convictions or substantial misdemeanor violations of the law could be disqualifiers.  This initial training could be done piece-meal to accommodate the trainees personal schedule.  This training would also include what can be fairly called indoctrination classes to foster a pro-American attitude. 

  Also, prior to training, candidates would undergo an initial psychological evaluation which, with modern technology, could be done via computer.  During or following training but prior to certification, a trainer, instructor, supervisor, or group of fellow trainees may recommend that an individual undergo further and more detailed psychological examination by a professional counselor.  Mental illness would not necessarily be prohibitive, if low-level or controlled by medication.  Candidates would also be subject to drug and alcohol testing.

• Further, if there are concerns about a trainee’s loyalty to the American system of liberty, a trainee can, upon recommendation by a supervisor, be subjected to further inquiry by a qualified board of officials.
  Once qualified and certified, a member of the militia is issued basic standard equipment.  I imagine that we would follow the example of nations like Sweden, Switzerland, and Israel in what this would be.  Possibly a set of military fatigues, a gas mask, a rifle, a sealed box of ammunition; maybe a pistol and ammunition; and possible some form of small-caliber machine gun.

• Re-certification training would be required yearly.  This could be as little as a couple of weekends.  This would also give an opportunity for the trainers to evaluate a member’s mental health and, if need be, recommend further inquiry.  Again, there would be drug and alcohol testing at this time.

• Only people who have gone through militia certification may have military grade weaponry.  Again, allowance would be made for minors to hunt and for the disabled to hunt and have personal fire-arms for self-defense.

• Private production of modern style firearms [non-musket; non-flintlocks] would be illegal.  Only government sanctioned monopolies would be allowed to produce these classes of firearms.

• New firearms would only be available for purchase from a government sanctioned facility – such as Alcohol Beverage Control [ABC] stores in some jurisdictions for alcohol.

• Ammunition could still be produced by private businesses and sold and various outlets.  However, it would be taxed at rates based, in part, upon consideration of the lethality or harm caused by the ammo.  Certainly classes of ammunition – armor-piercing, hollow points, etc. – could be banned completely.  One area of protestation regarding this is the question of criminals with body armor.  In all seriousness I suggest that a shotgun blast to the face or a shot gun slug to the armored body will do a great deal to stop an attack by a individual wearing body armor.   [And, with just a touch of facetiousness, I suggest that a flamethrower would be effective against body-armor as well.  And yes, small flamethrowers for agricultural purposes are available for commercial purchase.]

• Black powder muskets and flintlock pistols could still be produced by private business or licensed individuals.
  Every firearm would have a title and registration number similar to what we do with vehicles.  Any private transfer of firearms would have to be registered.  All firearms from before the new rules would need to be registered and titled.  So, no more gun shows or unsupervised gun sales.
  There would be no concealed carry, however open carry by qualified individuals would be allowed.  My thinking on this is that citizens have a right to know which of their fellow citizens is armed so that they may elect to avoid that person or situation.
  While no firearms from before the new rules would be confiscated simply because of their class, ammunition for those weapons could be restricted and be taxed quite heavily.
• Uniform and nation-wide laws and penalties for the violation of those laws would be created.  Severe mandatory-minimums would be established for certain crimes such as theft of a firearm or defacing the registration markings.

• Possession of firearms by non-law enforcement, non-active military is certain places could be prohibited – bars, churches, courthouses.  Though such limits would have to be reasonable and not so restrictive as to effectively ban possession of firearms by the general citizenry.
• Finally, if a member of a household is considered to be mentally unstable or dangerous to themselves or others, even the qualified members of the household may be prohibited from having certain classes of firearms in their homes.

I think the above is a fair balance between the rights of the individual and the rights of society.  I also think it is a fair compromise between the radical positions on both sides of the issue.  And, through ammunition taxation and by financial penalty associated with either non-militia membership or low-level violations of the rules, regulations, and laws of this scheme, I think a substantial part of the costs of this program would be covered thus lowering its financial burden on society.

 If I’ve missed anything, or if anyone has any specific concerns, please feel free to comment.