Tuesday, August 9, 2016

On Regulation and the Second Amendment

Yet another post inspired on social media. The original question is:

"The language is pretty specific. The way I read it says that citizens can have firearms for the purpose of a regulated militia. What does that actually mean? If you've a license, does that automatically mean you're in a militia or required to be in one in the event of tyranny, or is it just a license so you can have guns? "Regulated militia" seems to be a key phrase, but I haven't heard anyone talk about it."

One thing to note about "regulated" in the 1700's, is it means "equipped, trained". Every military aged male at the time was expected to own and maintain his own guns and ammo for the purposes of common and self defense. The Militia Act of 1792 spells it out quite clearly. Regulated didn't refer to rules, it meant a state of readiness.

As the rights of people in this country have evolved, I would surmise that the law of common defense is everyone's responsibility, not just military aged males.

The reading of the Amendment is: 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 first part is a predicate: "a well regulated militia, being necessary to the security of a free state" is the REASON, not a limitation.

"The right of the people" is important here. Everywhere else in the Constitution, Bill of Rights and Declaration of Independence, The People refers to the individual.

"The right of the people to keep and bear arms" keep is own, bear is carry/use.

"Shall not be infringed" I think this part is pretty clear, but I'll explain.
DC vs Heller contends that this applies to the individual and arms that are "in common use". While I disagree with the "in common use" clause to a point, it does specifically protect semi-automatic rifles due to that clause. I disagree, as in the days following the revolution, most military equipment (cannons, ships, guns) was privately owned. The founders wanted to keep it that way, and generally opposed the creating and maintaining of a standing army.

While we have that standing army now, it is not omnipresent, and in the event of an invasion (however unlikely) The People would be required to take up arms and defend themselves and their neighbors. The other use is revolution against the government, and while no one (including my gun loving self) wants to see that, it's always possible if the government forgets who's actually in charge (The People).

This is a very important point, and one that's been lost in all the political rhetoric following mass shootings and unrest.