Something I can say without fear of contradiction about the 2nd Amendment is that it is part of our Constitution, it has not been repealed or amended, and it must mean something. Let’s take a look at the language:
AMENDMENT II
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.
There are two parts to it. The bottom line is: “the right of the people to keep and bear arms, shall not be infringed.” The part about a well regulated militia has no legal bearing. It’s merely explanatory. And one wishes it did a bit more explaining.
Imagine a hypothetical amendment that said, “The use of a horse is necessary for the movement of a freeman, therefore each citizen shall be provided with at least one horse.”
We could all agree that in the 21st-century such an amendment is an anachronism. But, until we did something to change the Constitution, we’d all still be entitled to a free horse. In other words, it doesn’t matter if we no longer agree that our security depends on a well-regulated militia, or even if we think gun ownership has anything to do with how well-regulated a militia might be. If we think the 2nd Amendment is outdated, we ought to change it.
However, there is one further problem in interpreting the 2nd Amendment. We might concede that legislatures cannot infringe on our right to bear arms, but we know that we can’t possibly have the right to own our own nuclear weapon. Some kind of line needs to be drawn between a right to a musket and a right to a thermonuclear device.
Once we start deliberating about where we should draw that line, we are forced to revisit the rationale for our right to bear arms. Why did the Founders think it was so important that we have a well-regulated militia?
The answer to this is actually fairly simple, but understanding the answer is a bit more complicated. The simple answer is that the Founders saw militias as an alternative to what they called “standing armies.” These were assemblies of permanent soldiers who needed to be paid in peacetime as well as during war. Providing them with housing and food and training was expensive, and they tended to act like locusts who had little regard for people’s property rights. Their expense also made it hard to justify keeping them organized without finding some use for them. Here are some quotes about standing armies from the late 18th-Century.
“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” (Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment [I Annals of Congress at 750 {August 17, 1789}])
“…but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights…” (Alexander Hamilton speaking of standing armies in Federalist 29.)
“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States” (Noah Webster in ‘An Examination into the Leading Principles of the Federal Constitution’, 1787, a pamphlet aimed at swaying Pennsylvania toward ratification, in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888))
The initial idea was that the federal government should not establish a standing army. And other than a regiment that guarded West Point and another that roamed the western frontier, the federal government had no standing army for its first few years of existence. The Legion of the United States was a small standing army that existed between 1791-1796. It wasn’t until the conflict with the British in the War of 1812 that we realized that we needed to have a standing army. The militia model went out of existence.
One could argue that the rationale of the 2nd Amendment was essentially discredited by 1812. Or, conversely, one could argue that we made a mistake in allowing a permanent standing army and that we should disband our armed forces and replace them with well-regulated militias. I mention this latter possibility not because it is plausible, but because the Founders had well-founded reasons for fearing standing armies and for preferring militias made up of self-armed citizen-farmers. That their vision proved impractical doesn’t mean that we don’t still have reason to arm ourselves as a check against tyranny.
Or, maybe, the impracticality of the vision does destroy that reasoning since we have no realistic chance of checking the power of the Pentagon through the use of any arsenal we might realistically acquire.
In any case, the 2nd Amendment had nothing to do with hunting or personal protection against common criminals. The right to bear arms was seen as a way to check the power of the federal government and to provide an alternative to standing armies. Since bearing arms in today’s America cannot substitute for the Army, Navy, Air Force, and Marines, nor can it realistically prevent the federal government from doing almost anything it wants to do, the entire legitimate rationale for the 2nd Amendment has been obliterated.
It makes little sense to argue that we have the right to hunt and protect our property, and only need arms suitable for those tasks. Nor does it make sense to argue that we must be as well-armed as the Air Force so that we may keep tyranny at bay.
We seek a cut-off point between the musket and an ICBM where we might uphold the right to bear arms, honor the spirit of the 2nd Amendment, and not act like insane people. But we can find no solution that can satisfy all three of those requirements.
The right to bear arms is indisputable. We just don’t know what “arms” are, or why we should have the right to bear them.
Add to this that we have no political will to decide any of these questions one way or the other.
The last time we had such an impasse was over the Jim Crow Laws, and the Court stepped in and put their thumbs on the scale, which created the momentum Congress needed to break their gridlock. It happened again with abortion rights, with less satisfactory results.
What I know for sure is that we ought to have legislatures figure out why we have a right to bear arms, what “arms” are, and then decide how we can best protect the public safety. Talking about guns in the context of the 2nd Amendment is a disaster.