Sunday, February 25, 2018

"A Well Regulated Militia" - part 5

Summation: Whither the Second Amendment?

The republican militia was an anachronism at its conception in Florence. The Second Amendment and the 1792 Militia Acts mandated an unworkable system for raising a military for the new republic that was quickly abandoned. In law and custom, the Second Amendment has led to much mischief. Fletcher’s “well-regulated militia” has often degenerated into an ordinary and ill-regulated paramilitary force. As Bogus[27] pointed out, it became part of the slave system, indeed may even have been written into law to bolster the slave system. When the South seceded, it was the South Carolina state militia that threatened Fort Sumter. Racists, terrorists, and the criminally violent have been persuaded that the Second Amendment is an unlimited firearms license, while weapons makers use it as an excuse to sell vast numbers of battlefield weapons to civilians who do not need and often abuse them.

What remains after it is admitted that Fletcher was wrong? To say that Fletcher’s militia was a proposal for a system that has only rarely been successful and has at times been a great tool of oppression? Jefferson’s description of the militia in his first inaugural address is a far cry from the hopes of the classical republicans for a replacement for regular military. Four other ideas accreted to the the Second Amendment: (1) Federalism, the idea of the state militias as a check on Federal power, analogous to Fletcher’s belief in baronial power as a check on royal power,[30] (2) the idea that the Second Amendment granted a right to form informally organized paramilitaries without any legal sanction, (3) the individual right to own weapons for self defense as mentioned in Burgh and which I daresay most of the Founders and any Scots highlander would have recognized,[31] and, covertly, (4) the individual right to act as a vigilante armed with lethal force, so important and terrifying in the South. It is worth expanding on the racism of (4): older versions of Arkansas, Florida, and Tennessee law specifically refer to white men.[32]

Now, as in Renaissance Italy, even well-regulated militia can seldom overcome regular military; they are unseasoned and outgunned. The Federalist hope that the state militia would be a check on the vast standing army of the 21ˢᵗ century United States is forlorn. Even less effective are paramilitaries. There seems no satisfactory answer to that challenge: widespread availability of battlefield weapons to civilians creates the opportunity but does not grant the ability to organize into an effective force. Few modern uprisings in the USA and elsewhere have succeed in doing anything but killing in numbers ranging from small to vast. In addition, the widespread availability of battlefield weapons is itself a source of danger, enabling terrorism and increasing the lethality of violent crime.

Paramilitaries of varying degrees of regulation, however, have over and over become a part of US history: they became the infamous, murderous slave patrols of the slave states. The slave patrols later became Confederate soldiers, and still later the brutal racist terrorists of the segregated South. The regulated militia, the National Guard, after the civil war, also became a tool of capitalism at its worst, used against strikes and, indeed, any sufficiently unpopular organized political activists.

The personal right to self-defense with arms was mentioned by Burgh:

No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion. And though for a while, those, who have the sword in their power, abstain from doing him injury, yet by degrees he will be awed into submission to every arbitrary command.”[33]

This right has often claimed by 21ˢᵗ century firearms advocates as part of the Second Amendment, was not part of the Second Amendment, as the prefatory clause “A well regulated militia…” shows. It was a part of common law; no 18ᵗʰ century gentleman (and certainly no Scotsman) would be denied that right. Madison, who had read Burgh, did not include it in the Second Amendment and, of the original 13 states, only Pennsylvania had such a right in statute law. That right was a matter of swords, unreliable single-shot pistols, muzzle-loading muskets, and early slow-to-load rifles. The Colt revolver emerged decades after the Second Amendment was passed, and the modern rifle and semi-automatic pistol after that. The laws codifying a right to self-defense were also written later; in three states the right was granted only to white men.[34] In the wake of recent white supremacist terrorism enabled by easy access to firearms, this is an area of law in dire need of updating.

It seems to me important to align our thinking on the Second Amendment with the actual history of the amendment. The current governing Supreme Court decision on the Second Amendment, District of Columbia v. Heller,[35] is based on invalid history; republicanism is mentioned neither in the decision or the dissents. Racism also is not, yet it certainly was a factor. The earlier United States v. Miller[36] does at least allude to republicanism, but it would have been well had it said more.

It is hard for any people to say that any of their founding principles are wrong, yet it seems that is what is called for here. If many republican ideals remain powerful, yet others must be set aside. Even in its own time, the militia ideal was an unrealistic anachronism. Suggesting the repeal of any of the amendments of the Bill of Rights is risky; one amendment having been repealed, others might follow. Instead, a more historically accurate interpretation of the law seems sensible; modest weapons for self-defense and sport and membership in the various state Guards and militia for people who desire to serve. A strict liability standard for firearm users and owners seems sensible,[37] as do requirements for the inclusion of various safety technologies in civilian firearms.[38] At the strongest, a case could be made for the restriction of the right to keep arms to members of a well-regulated militia – that is, members of one of the State Militias or National Guards.

This is not going to be achieved quickly. Yet lethal violence has become a commonplace in the USA and the easy availability of firearms enables it, as it does more organized terrorism. We need to change our thinking and our laws.

Notes on Part 5

[30] Fletcher, Discourse, pp. 6–9

[31] There is some doubt as to whether the highlanders recognized any obligation to service at all. Andrew Fletcher sourly commented, "Nor indeed can there be a thorough reformation in this affair, so long as the one half of our country, in extent of ground, is possessed by a people who are all gentlemen only because they will not work; and who in everything are more contemptible than the vilest slaves, except that they always carry arms, because for the most part they live upon robbery.” – Andrew Fletcher, "The Second Discourse Concerning The Affairs Of Scotland." Fletcher, Andrew. Two Discourses Concerning the Affairs of Scotland, 1698. The Association for Scottish Literary Studies. Accessed October 15, 2017.

[32] Eugene Volokh. “State Constitutional Right to Keep and Bear Arms Provisions.” Texas Rev. of Law & Politics 11, no. 1 (Fall 2006): 192–217.

[33] Burgh, Political Disquisitions Vol II, p.390.

[34] Volokh, cited above.

[35] Justice Scalia. 2008. District of Columbia v. Heller (Justice Scalia, Opinion of the Court) U.S. Supreme Court.

[36] J. McReynolds. 2016. United States v. Miller. 1939. United States v. Miller. U.S. Supreme Court.

[37] Jim Wright. 2015. “Bang Bang Sanity.” Weblog. Stonekettle Station. 26 June 2015. Accessed 12 July 2017.

[38] Hemenway, David. 2004. “Ch 10: Policy Actions.” In Private Guns Public Health, 209–23. Ann Arbor: University of Michigan Press.

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