The Second Amendment

The Second Amendment to the U.S. Constitution dates to 1791, when the Bill of Rights (the first ten amendments) was ratified.  Here is the 2nd Amendment in its entirety:

"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."

Linguistically, that single sentence is a bit of a train wreck -- odd capitalizations, randomly inserted commas, clunky semantics.  Over the years, the 2nd Amendment has been a real eye-of-the-beholder enigma, never more so than today.

Now, Ol' Buster is surely no Constitutional expert (I just play one on the internet), but nevertheless I shall now enter where brave men fear to tread:

• The 2nd Amendment is not "sacred" or "sacrosanct".  We hear the gun nuts apply these religious adjectives a lot these days.  The Constitution is not holy writ, it's a set of fundamental laws and principles.  It was written by human beings, not gods.

• There is absolutely nothing in it to suggest that the point is for armed citizens to defend themselves against their own tyrannical government, an interpretation claimed today by so many gun nuts.

• Realistically, the one-sentence Amendment is saying:  We need a "militia" to protect us (the "state"), and that militia will be made of "the people", so any folks who want to keep a gun may do so.  (There was no standing army then.  National security was impromptu.  If called, you were expected to bring your own rifle.)

• I do not personally read the 2nd Amendment as giving unlimited weapons possession rights to individual private citizens.  The subject of the sentence is the militia.  Any gun rights flow from the necessity of a militia.

• Today, "militia" may be reasonably construed as our armed forces, along with federal, state and local law enforcement agencies.   Rights to bear arms reside with the people in those entities, not with every individual Tom, Swingin' Dick, and Huckleberry Hound.

Unlike Scalia or Silent Clarence, Justice Buster is not an "originalist".  Our Constitution, as good as it is (and it's damn good), is not an immaculate perfection.  Much of it, including the 2nd Amendment, is well over 200 years old, and like all similar codes, it requires constant reinterpretation through the lens of present day realities.  It is thus a living document, not a relic. 

In the 18th century, our young nation was largely rural and agrarian.  Most households kept a rifle to put food on the table.  The framers of the Constitution and the Bill of Rights knew nothing of high-caliber semi-automatic assault weapons, or 100 round ammo drums.  Such huge differences between then and now absolutely must be taken into account, in current gun policy and in any other area.


Not so very long ago, the Supreme Court agreed with Justice Buster.

The case was United States v. Miller.  The year was 1939, when the law required automatic weapons and short-barrelled rifles and shotguns to be federally registered and taxed.  Miller had such weapons, without registering or paying tax on them.  He was prosecuted for illegal possession, but a lower court found in his favor, saying the law violated Miller's 2nd Amendment rights.

The U.S. government appealed and the Supreme Court unanimously -- unanimously -- reversed the lower court decision.  The Supremes of 1939 found no conflict between the federal law and the Second Amendment, and wrote:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Describing the constitutional authority under which Congress could call forth state militia, the Court stated, "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

The Court also looked to historical sources to explain the meaning of "militia" as set down by the authors of the Constitution:

"The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

The Supreme Court of 1939 was something of a wise-owl Dream Team, and included such legal worthies as Louis Brandeis, Felix Frankfurter, Hugo Black, and William O. Douglas.

Alas, Mr. Miller was not around to hear the final verdict on his case.  Before the Court issued its decision, Miller was found dead.  He'd been shot to death.

It was only with the slew of conservative Justices appointed by Nixon, Reagan, and both Bushes that the bloody NRA viewpoint gradually gained traction, and the wisdom of the '39ers was slowly washed away.  A pity.

Therefore, in the name of common sense and public safety, Justice Buster orders the NRA to disband immediately, and also orders that all gun nuts (you know who you are!) be deported to the Ross Ice Shelf.

And with that, my court is adjourned.  I expect to be promptly disbarred.