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
It is unfortunate that the advocates of gun rights count it as a victory that the Supreme Court has decided that the first part of the Second Amendment, the conditioning statement regarding a well-regulated militia, should be ignored. For those who fantasize that in the event of the rise (or continued rise) of a tyrannical government, they will will take their assault rifles and defeat it Red Dawn style, merely having the unfettered right for every disreputable character in America to have and trade all the guns he wants without supervision seems like a wonderful thing. In practice, though, we have seen that Afghans armed with assault rifles facing even an army bound by rules of engage that forbade just slaughtering them was unable to do much with their guns; they killed and wounded our soldiers with explosives. If a U.S. standing army was determined to take down rebels and did not feel compelled to be particularly scrupulous about avoiding “collateral damage”, they would squash any would-be Red Dawners like bugs. This is why the gun rights crowd has missed the point, and have allowed the Supreme Court to disembowel the truly effective protection that the Founders really intended to give us while making the would-be rebels cheer them for it.
Jefferson knew that in any society wealth will tend to concentrate in a few hands, and the owners of that wealth will then seek to exercise tyrannical control over everyone else. He sought to control the roots of that problem through broad education, promotion of a broad economy of yeoman farmers beholding to no one, and the restriction of bank power. At the other end, he was opposed to the idea of standing armies, which are an obvious temptation to tyranny. One of the complaints he stated in the Declaration of Independence was that the Crown “has kept among us, in times of peace, standing armies, without the consent of our legislatures.” He would be truly horrified at our current state of militarization and perpetual warfare. He would also be horrified that our law provides for a federal military draft.
Madison explicitly viewed state militias as being a check on the danger of a federal army, and considered it important that in order to have a federal army under the constitution Congress would have to vote to raise one, and the President would then have to command it. This latter check, of course, has now been undermined by Congress funding a perpetual giant military force that is always available at the beck-and-call of the President, without need for a declaration of war. Madison’s views can be seen, for example, in the following statements:
“Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” From The Federalist Papers.
Mr. MADISON. …did not see any such immediate prospect of a war as could induce the house to violate the Constitution. He thought that it was a wise principle in the Constitution to make one branch of the government raise an army, and another conduct it. If the legislature had the power to conduct an army, they might embody it for that end. On the other hand, if the President was empowered to raise an army, as he is to direct its motions when raised, he might wish to assemble it for the sake of the influence to be acquired by the command the Constitution had wisely guarded against the danger on either side. From a House debate on giving the President the power to lay embargoes.
…to keep within the requisite limits a standing military force, always remembering that an armed and trained militia is the firmest bulwark of republics–that without standing armies their liberty can never be in danger, nor with large ones safe. From his first inaugural address.
Likewise, it is clear that the early state governors believed that it was their right and duty to refuse to call up and subject state militias to federal power. See, for example, the refusal by the governor of Connecticut to provide the state militia during the War of 1812 where in his view the grounds for such a requisition under the Constitution had not been satisfied.
Against this background, then, it can be seen that the Second Amendment, combined with the other checks in the Constitution, was intended to have a much broader and more significant scope than guaranteeing a right for individuals to play with firearms. It was intended to preserve the right of the states to maintain militias capable of providing real opposition to federal power, and to keep those militias under state control as a check on any would-be tyrant. The Founders envisioned that Congress would do its duty to disband standing federal armies and keep military power under the primary control of the states. It is this right that the Second Amendment was intended to protect. It is this structure that American citizens were expected to enforce by heavy and jealous pressure over their Congressional representatives, voting out anyone who dared to try to create a perpetual federal army of any size. The gun-rights crowd don’t care about this, but every American citizen should. We have allowed our Constitutional structure to be undermined in a very disturbing way, we cheer the Supreme Court for treating the carefully chosen words of the Bill of Rights as mere fluff, and we revel in false-macho dreams of Red Dawn rather than following the truly effective structure that the Framers , having just overthrown an oppressive power, were wise enough to give us.
Relatedly, we have allowed the Supreme Court to ignore the clear words of another provision of the Constitution, the Thirteenth Amendment. That Amendment states:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
When the federal government dictates to a young man that he shall, on pain of imprisonment, show up to serve at the whim of the government wherever on the planet the government chooses to send him, whether or not a war has been declared, to kill, be killed, serve under military law, and perform whatever task he is ordered to perform or be imprisoned or executed, what is that but involuntary servitude? Rather than answer this question, the Supreme Court merely blew it off in the Selective Draft Law Cases, 245 U.S. 366 (1918), stating in full:
“As we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.”
Now that women serve in combat roles, former President Obama wanted to extend registration for this involuntary servitude to them as well (while, incidentally, failing to do much about the rampant problem of rape in the military). There is not yet a proposal to extend draft registration to older people, because that would be unpopular. We prefer to inflict the “opportunity” for involuntary service based purely on youth, not physical ability, family status, etc., because a given voter will never get younger, and so the Powers can rely on the general voting population not caring enough about the rights of the young to speak up. Of course the precedents exist for the draft to be applied to persons of any age on short notice when the President commands it, placing everyone under military rule. Under Obama’s version, every adult in the country could be conscripted and placed under military discipline.
If America is ever under serious threat, the nature of the American population is such that any honest President could persuade an adequate number of volunteers to step forward on short notice to do what needs to be done. Why, then, give him the power to instead force people into involuntary service in an undeclared war against an artificial enemy, or against our own civilian population, based on a dishonest or tyrannical President’s whim? What is wrong with us that we let this state of affairs persist when it is clearly dangerous and inconsistent with our Constitutional principles?
Americans talk a good game. Any time we feel threatened or insulted out come the flags and the macho declarations that we are the Grand Protectors of Freedom who will bravely do whatever needs to be done to make ourselves and the world free. In practice, we are not willing to do so much as to write an e-mail to our Congresspeople demanding that they restore the Constitutional balance that the Founders designed to protect our real freedom. After a terror incident, we allow huge military and security apparatus power grabs to undermine our freedom and shred the Constitution while saying that we are doing it to “protect freedom”, when really we are staging a pathetic and cowardly retreat from freedom in favor of perceived safety. If Americans actually cared about freedom they would support what the Second and Thirteenth Amendments and the rest of the Constitution were intended to do. We would demand respect for the intended framework. We would not sit on our lazy behinds or hang around gun shows talking about freedom while making no effort to push the government to maintain the structures that protect it. The evolution of American society and government is evidence that, when it comes down to it, we just don’t care.
matthewnfortunato 