Understanding the Second Amendment
The Second Amendment is, to say the least, problematic. It sits in the Bill of Rights, our pantheon of liberties, alongside freedom of speech and due process of law. But like so many parts of our Constitution, it is a source of constant argument over its meaning. And it is particularly problematic for liberals, who interpret the Bill of Rights expansively but are disgusted with the consequences of the easy availability of guns in our country. So, I wanted to spend a little time tackling this troublesome Amendment, and understanding what it really means.
The first step to understanding the Second Amendment is to understand its context within the Constitution as a document.
Note that I am not discussing the historical context of the Second Amendment. I’m not a historian, and the history of the Second Amendment has been debated ad nauseam in legal opinions in scholarly publications. I want to focus on the textual context of the Second Amendment. In other words, coming at the Constitution assuming only a basic understanding of history and civics, how do those 27 words interact with the rest of the text?
The first step to understanding where the Second Amendment fits into the Constitution is understanding what the Constitution says about the U.S. Army. Or, more specifically, what it doesn’t say. The Constitution has exactly two references to the Army. One reference is that the president is Commander-in-Chief of the Army and Navy. The other reference is mostly about funding:
The Congress shall have Power…[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.
If you read the text of the Constitution, the Army is almost an afterthought. And sensibly, given the resistance of both the founders and the 18th Century public to a professional, standing army. The text is much more focused on a different mechanism of national defense — one that would be much more familiar to the Roman Republic than to the Roman Empire.
In 1789, the main source of military power was the state militias — bodies of citizen-soldiers organized and trained by their state governments. When necessary, Congress would have the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and the power “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.” Furthermore, during those times when Congress had to call the Militia into national service, the president would be their commander-in-chief.
A worry of the founding generation — from citizens skeptical of federal power to politicians well-versed in the history of Marius, Sulla, Caesar, and the rest — was that Congress would raise a professional army and supplant the militias. So the Constitution has three backstops against this sort of power-grab.
First, if you look back at the quote above about funding the Army, the most important words in that sentence are the words “two years.” This two-year limitation on appropriations is unique within the Constitution. In theory, Congress could appropriate money indefinitely for any other purpose, but not the Army. And two years is a very important span of time: the length of a Congressperson’s term. Thus, in order to continuously fund a standing army, every single Congressperson would have to vote on it, each term. And since voting on a standing army would be unpopular, if you make it so that Congress has to vote every two years on a standing Army, you (in theory) don’t get one.
Second, although Congress has the power to organize, arm, and call up the Militias, there’s one key limitation:
reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
The Constitution envisions a well-trained fighting force, but the officers would be appointed by state officials, and the training would be done by state officials. Though the president might be commander-in-chief when the state Militias were called into service, soldiers’ loyalty would be to their home states, not to the president or the federal government.
And then there’s a third backstop. Congress cannot simply disband the state militias and replace them with a national standing army. Why not? Because “the right of the people to keep and bear Arms, shall not be infringed.” Congress could not, by law, disarm the state militias.
Considered in context, the Second Amendment makes sense as one of three backstops against an attempt by Congress to create a dominant, professional, standing army. Congress would have to keep voting to reauthorize a standing army, and the easier alternative (the state militias) were loyal to their states and unable to be disarmed.
But our analysis isn’t done here. The Fourteenth Amendment was adopted in 1868 because the experience of the young republic had shown that states could be just as great a — if not a greater — threat to civil liberties than the federal government. Thus, the 14th Amendment (kind of) made it illegal for states to abridge individual liberties.
This is where Second Amendment analysis gets kind of tricky. It is fairly evident how a state could abridge free speech, or freedom of religion, or due process. But how could a state abridge it’s own right to have (or not have) a militia? Does the logic of the Second Amendment — that armed militias are necessary for opposing federal tyranny—imply that individual gun-ownership is necessary to avoid state tyranny?
Maybe. But maybe not. The Constitution makes it the responsibility of the federal government to “guarantee to every State in this Union a Republican Form of Government.” If a state devolved into tyranny, it was the job of the federal government to sort things out — militarily, if need be. If a state is violating the rights of its citizens, the president can send the 101st Airborne to intervene.
So, the use of military force to prevent tyranny is a nicely closed circle. The U.S. Army protects against state tyranny, and the state National Guards protect against federal tyranny. Individual gun-ownership need not enter the picture.
Individual gun-ownership need not enter the picture, but does it enter the picture anyway?
And here’s where I — and many liberals — get stuck. I tend to read rights expansively, and I believe that the 9th Amendment commands us to read rights expansively. The word “abortion” never appears in the Constitution, but I think Roe v. Wade is a correct interpretation of the 9th and 14th amendments. Reading an individual right to gun ownership into the phrase “the right of the people to keep and bear Arms” is not nearly as big a conceptual or linguistic stretch.
So I can’t really blame people for wanting to read the Second Amendment broadly. Is my opposition to “gun rights” anything more than my personal preferences masquerading as constitutional law? Am I a hypocrite for picking and choosing which rights I like?
These are all fair criticisms. Ultimately, I think that the criticisms fail and that I am on solid ground, but that will be the subject of another essay.
