Ernest Tews has written a letter to the editor of the Asbury Park [NJ] Press, demanding regulation of gun owners. Actually he seems to think that the Second Amendment makes such a demand. He starts out conventionally enough, quoting the Second Amendment and then making the usual plaint that’s it’s just so darned hard to understand. “The Second Amendment says, ‘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.’ The Second Amendment is frustratingly non-specific, but let’s look at it as a product of the time it was written.” I think part of Ernest’s confusion here . . .
is due to the Amendment’s somewhat archaic construction. And part of that comes from changes in language and the meaning of words over the decades. So are there any examples of this style of prefatory statement grammar we can find to help Ernest out? How about this phrase from the NH Constitution:
The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.
Or, from the Massachusetts Constitution:
The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.
Obviously the Founders set great stock in the free press. But these statements quite clearly demonstrate this somewhat archaic construction of a prefatory clause followed by the operative (or independent) clause. Keeping that construction in mind, let’s look at a Second Amendment analogue. Suppose the First Amendment contained a similar phrase:
A well-educated electorate being necessary to the preservation of a free state, the right of the people to read and write books shall not be infringed.
Do you think anyone would argue that this means literacy and book ownership should be limited to registered voters? Of course not. As for those who would argue that “Unlike guns, books never killed anyone” I would say Mein Kampf, The Turner Diaries, The Protocols of the Elders of Zion, The Satanic Verses, Stephen King’s Rage (originally titled Getting It On), etc.
In addition, when you have all nine Supreme Court justices agree that it protects an individual right, it must be specific.
Second, lets look at the time in which it was written — shortly after these small colonies fought a long war against one of the world’s superpowers. They won by the skin of their teeth, in part by virtue of having the latest and best “military style assault weapons” of the day; weapons which were actually superior to the “Brown Bess” musket with which the British troops were armed.
Having freed themselves from an oppressive government which had ignored and denied their rights as Englishmen, they were determined not to make the same mistakes again. One of the “mistakes” which led to the Revolution was the fact that there was nothing like a Constitution or a clearly established set of an Englishman’s rights. There were traditions, understandings of “the way we have always done things” and precedents. But those had a way of being reinterpreted in ways unfavorable to individual rights.
Thus, looking at it as a product of its time, we can see that the Founders would have wanted explicit rights for individuals and explicit (and limited) powers for the government. They also would have wanted to ensure that, should it ever happen that the people once again suffered a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism that those selfsame people would have the means to throw off such Government, and to provide new Guards for their future security. So to speak.
But enough of my interpretation, let’s see what Ernest thinks is important about that time:
A war was recently ended with a colonial power. Americans were steadily moving into and taking aboriginal lands from the previous owners, who were angry enough to fight back. The militia of a place was a quasi-governmental group: Folks got together to protect themselves; elected leaders and the local governments supported those efforts.
And all of these are reasons why the Founders would not intend the Second Amendment to protect the individual right to keep and bear arms? I’m not following you Ernest.
Now look at today: We have a well-regulated militia — local police and the National Guard. We have a free state.
I’ll grant you that the police are becoming more and more militarized, but in theory they are peace officers, not soldiers. Which means that no, they aren’t any sort of “militia”. As for the National Guard, they are indeed, by statute, part of the organized militia.
Unfortunately for Ernest, however, the individual right to keep and bear arms protected by the Second Amendment really has nothing to do with the organized militia. As the Supreme Court held in Heller:
The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
Let me repeat that for all the Ernests out there: The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. So what’s the next arrow in Ernest’s quiver?
If one were to include all folks who wish to own a weapon, and have them included in the “militia” envelope, the assumption is the militia is to be well-regulated. That is part of the deal. If you want to use the Second Amendment, you have to use the whole thing.
No, the whole militia question is a red herring used by anti02A types for decades to try to disguise the truth that the freedom to own and carry the weapon of your choice is a natural, fundamental, and inalienable human, individual, civil and Constitutional right — subject neither to the democratic process nor to arguments grounded in social utility.
In addition, the Founders’ concept of “well-regulated” did not mean “wrapped up in red tape” as Ernest seems to believe. To find out what it meant in the 18th century, let me turn to Samuel Johnson’s A Dictionary of the English Language (published in 1755). Johnson’s dictionary was considered by most to be the pre-eminent English language dictionary until the publication of the Oxford English Dictionary some 175 years later. Johnson defines regulate as:
- To adjust by rule or method
- To direct
If we look up adjust we find:
- To regulate; to put in order
- To make accurate
- To make conformable
And the definition of direct is given as:
- To aim in a straight line
- To point against as a mark
- To regulate; to adjust
Finally the Oxford English Dictionary itself defines regulated as:
- Governed by rule, properly controlled or directed, adjusted to some standard.
- Of troops: properly disciplined (Obsolete rare).
Although work started on the OED in the mid to late 1800s, it wasn’t completed and published until 1928 so it’s not unreasonable that they classified that particular usage of regulated as obsolete.
Next Ernest goes into some modern-day type regulation he would apparently like to see implemented:
One of the proposed New Jersey gun-control laws, written by Assemblywoman Angelica M. Jimenez, would require a mental health evaluation and a police inspection of the prospective gun buyer’s home. Is this too strict?
No it isn’t too strict; it just constitutes multiple violations of peoples’ civil rights. Why in bloody blue blazes should I have to prove my sanity to anyone for any purpose? Is it the default assumption in New Jersey now that anyone who wants to own a gun is mentally ill? Okay, come to think of it, given the insane laws and even more insane punishments ($1,000 fine per round of hollow-point…a year in prison for unlicensed possession of an AirSoft gun) gunnies face in the Garden State, maybe they have to be a little nuts to live there.
Back on topic. I don’t have to demonstrate my sanity to vote, go to church, publish a blog, drive a car or buy a dog; I shouldn’t have to prove it to do anything at all. As for the “police inspection” of the home, can you say Fourth Amendment boys and girls?
Too many of the recent acts of violence were perpetrated by people who would not pass such a review, but because a review was not required, they purchased guns anyway.
Ayup. That’s because (unlike plenty of other places Ernest wouldn’t want to live) we have an assumption of liberty here. I once read an interesting definition of the difference between freedom and oppression. In a free system, the laws state what you are prohibited from doing, whereas in a tyranny the laws tell you what you are permitted to do.
There’s an interesting thing about those “recent acts of violence” — all but one of them took place where peoples’ liberty was restricted (i.e. “gun free” zones). As for the single exception, if the stinking Pima County Sheriff had arrested the Tucson shooter when he started making death threats all over town, the shooter would have been behind bars when Rep. Giffords held her parking lot meeting.
And the National Rifle Association has pointed out that mental status should be checked, but it is currently not required.
Ernest, there’s a reason I’m a Life Member of Gun Owners of America and not the NRA. Setting that aside, though, you’re just plain wrong. What Wayne et al. have been calling for is ensuring that people who have been adjudicated a risk to themselves or others get on the “no buy” list, not that anyone and everyone who wants to buy a firearm should undergo a mental health evaluation.
I would add the idea that any new owner of a weapon must also go through the training a police officer takes for carrying a weapon, and the new owner should be re-qualified at least as often as a police officer.
Except 90% of the POST standards have absolutely nothing to do with carry by your average Joe. For us “civilians,” there’s no “continuum of force.” We aren’t worried about needing to use less-than-lethal force, we aren’t going to try to approach a BG to handcuff him. For us, it’s simple; do I face the imminent threat of death or great bodily harm? If yes, deadly force is authorized. If no, deadly force is prohibited.
As for requalification, if memory serves, the average cop shoots 50 or 100 rounds once or twice a year to qualify. Hell, I’ve been known to shoot 10 times that amount in a single weekend. Obviously Ernest doesn’t know many carry permit holders; otherwise he’d know that the vast majority of us who carry by choice (instead of as a requirement for a job) are considerably more responsible than the average citizen. Since I have chosen to take responsibility for my safety and that of my loved ones, I have a duty to be able to shoot straight, to have properly functioning equipment and to know and practice safety at all times.
As to carrying a weapon in colleges or restaurants, what a disaster: Alcohol and weapons don’t mix at all, and please don’t waste my time saying colleges have no alcohol problems.
Yes many college students drink to excess; doing stupid things is part of the process of growing up. How else can we know our boundaries unless we test them?
As for carry on campus being a disaster, please list for me all of the drunken accidental shootings on campuses in Utah and Colorado. That will be a short list because you can’t; there haven’t been any of the “sky is falling!” problems that the Chicken Littles among us predicted when campus carry was legalized there.
Finally, saying “alcohol and weapons don’t mix” is meaningless. Right now, locked up in my basement, I have half a dozen bottles of single malt scotch, probably half-again as many bottles of rum. I have easily a dozen cases of home-brewed meads, melomels and wines.
I also have at least half a dozen pistols, 4 rifles and 3 shotguns locked up in my gun safe. Oh, and my home carry piece and back-up, too. In addition, I regularly have wine or beer with a meal. So does this mean I’m mixing alcohol and weapons? OMG! Call out the National Guard!
No, Ernest, the Second Amendment isn’t “non-specific,” cops aren’t “the militia,” guns and alcohol do sometimes mix just fine, and the sky is not falling.
Honest.