Thursday, April 12, 2018

The Second Amendment's Creative Ambiguity

Bill of Rights
I've been writing for a couple of weeks about the Second Amendment's ambiguous wording. Quoting various Founding Fathers, I showed that the Second Amendment allows for two contradictory interpretations: (1) that it provides for a "well regulated Militia" or (2) that it allows citizens to "keep and bear arms." Overlooking that "bearing arms" in the 18th Century meant military service, and that almost every household in that era was armed, we still find two sides at loggerheads--just as we would have in 1791 when the Bill of Rights was adopted. It's time to sum up how that ambiguity made a difference with the speeches I've written about.

Let's remember what the Second Amendment says:


"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."


Parkland shooting survivor Emma Gonz├ílez has argued persuasively for modest gun control measures. That surely would infringe, at least to a small degree, on individual gun rights. She didn't actually mention the Second Amendment at all. If we take "shall not be infringed" literally, she would be wrong to think that gun control was legal. However, if we take "well regulated militia" literally, her proposals are quite modest, legal, and consistent with history. 


NRA executive Wayne LaPierre took the other side of the Second Amendment's ambiguity, claiming that any infringement on gun rights puts us on a slippery slope to tyranny. That sounds, well, I suppose, a bit paranoid, but he obviously concerned himself with "shall not be infringed" while ignoring "well regulated militia." 


Similarly, Mark Robinson, an ordinary citizen whose passionate pro-gun speech went viral on the Internet, argued against any sort of gun control whatsoever, and he seemed to equate even modest anti-gun measures with gun confiscation. Although that sounds like an implausible conspiracy theory when I put it that way, his reaction is typical of many pro-gun advocates. Like LaPierre, he accepted "shall not be infringed" but ignored "well regulated militia." His reaction obviously arises from deep mistrust of anyone who is not a conservative, but it also exploits (as do most pro- and anti-gun control speeches) the Second Amendment's utter lack of clarity.


Yet, although the Second Amendment is obviously, blatantly, unmistakably unclear, both sides in the gun control debate act as if they know exactly what it means. They don't. Both sides say that their side is absolutely, clearly, historically right. That claim is quite dubious. The Founders who wrote the Second Amendment did not, as I argued in my earlier post, know exactly what it meant, and neither do we. 



Food for thought: the Founders of our republic believed in an armed citizen militia, and viewed this as an alternative to having a regular army, which they considered to be a threat to liberty. Is it possible that they wrote the Second Amendment as an alternative to having an army, and not as a way for citizens to take the law into their own hands? James Madison: "A standing military force, with an overgrown Executive will not long be safe companions to liberty." Today, conservatives accept the need for an armed citizenry, but also tend to favor a strong army and powerful president. Things are complicated, are they not? 

Image: National Archives

 

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