When Rights Conflict
On March 14th students across the the USA walked out of the classrooms to protest the lack of controls on the purchase of assault rifles.* This was organized in response to the deaths of 17 individuals in a recent mass shooting in Parkland Florida. The students who participated were advocating for their own right to life. Protecting the life of its citizenry is the most important function of government.
As has been typical in every mass shooting since Columbine in 1999, the call to limit certain types of firearms in the wake of the tragedies has been met by a coordinated and well funded push-back by gun rights advocates in general and the National Rifle Association in particular. They advocate that the 2nd amendment of the US constitution guarantees an absolute and unalienable right of the individual to own personal firearms.
As in most of the culture war debates today, there is a clash a of values at the heart of the conflict. The students who walked out value their safety and security. The gun owners value their freedom of action. The students are advocating that freedom of action in gun ownership is of less value than the collective security of society. The gun owners are arguing that collective security can never really be guaranteed by society so the individuals must have the right to defend themselves.
So the students are advocating less guns through gun control. While the response of gun advocates has been that more guns will make us safer. More armed guards, arming teachers, and the expansion of concealed carry laws are the best best way to protect society. The raw statistical evidence is on the side of the students; murders, and accidental deaths strongly correlate with the sheer amount of guns in a society. However for good or ill our society never resolves these issues on purely utilitarian grounds. Our values have at times overided pure utility.
So how do choose which way is correct? We live in a constitutional republic. Our constitution is a social contract that sets up boundaries for the government and protections for its citizens. It also gives us a framework to work out solutions when rights conflict such as we are witnessing today. Perhaps if we were better acquainted with it we could come up with a solution to what to do about guns that most of us can all live with.
The Ambiguous Amendment
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.
Many historians of the period have argued that the constitution was intentionally designed to be ambiguous as to give society a tool to work out problems. Thus seems to be the case with the second amendment. The conclusion of the amendment makes a strong statement for the right to for people to own weapons. However that conclusion is qualified by the reasoning that the purpose of the amendment is to guarantee the security of the state.
So the while Bill of Rights seems lead toward security of the state being the primary value, the word state is qualified with the word "free", which means that the state will be limited in its scope. Therefore some Supreme Court interpretations will both uphold the ability of society to enact gun control, while at the same time undermining it. District of Columbia v. Heller in 2008 was such a case, While striking down Washington DC's strict handgun law on the grounds that it violated a the right to bear arms for lawful purposes, the majority still maintained that gun rights are not absolute and gun control legislation can be constitutional as long as it does not deny due process and lawful use.
Why the Militia Clause Matters
In writing the majority opinion of District of Columbia v. Heller Justice Scalia made a historic departure for the court, as the 2nd Amendment had previously been interpreted in light of the militia requirement stated in the first four words of the amendment. Justices Stevens, and Breyer both wrote dissenting opinions arguing this point among others. The decision was close, 5-4. To make things more ambiguous, sometimes in constitutional law dissenting opinions are appealed to in future cases to make decisions. So the militia clause may be brought back to life someday. I believe the militia clause remains important and may again become relevant as it reveals proper place in society of those who bear arms.
At the time of the writing of the Constitution and Bill of Rights, all of the states had laws on the books that would call up "all able bodied white male citizens" for service in a local militia and required them to provide their own weapons, powder and shot for defense of the state. In the colonial and early republic there were four potential reasons a state would call out the militia, conflicts with Native American Tribes, attacks from the European powers or their proxies, slave rebellions, and the suppression of popular revolts.
Shays rebellion in 1786 in western Massachusetts was a seminal event in the confederation period which spearheaded the impetus for the convention that led to our Constitution and Bill of Rights. In the current debate about gun control, both left wing and right wing commentators get the interpretation of the period wrong. Left wing commentators have narrowed the necessity of militia of colonial America to maintain slavery and to encroach on Indian lands. While there is some truth to these arguments, they are over simplified; they also impose contemporary cultural ideas on a distant past. Foreign powers remained a real threat to american communities until the end of the war of 1812, and local insurrections were not uncommon during the period. The people of the time would see the militia not as tool to maintain an oppressive system, but rather as an aid to the safety of the community as a whole.
Right wing commentators and meme generators often equate the second amendment with a right of revolution, so citizens have right to bear arms to protect themselves from the government. This is a wishful delusion. Neither the constitution nor the the Bill of Rights expresses such a sentiment. Even the Declaration of Independence, where this idea most clearly stated, offers the only reason as a lack of representation for the moral impetus behind a right of revolution. The Constitution provides for the representation for all citizens, so there is no need for a right of revolution to be outlined.
Frankly, Madison, Hamilton, Jay, Washington, Franklin and Morris would be aghast if people thought like the NRA advocates today that there is a right to protect oneself from the government in the constitution. It would be like adding a self-destruct button to it, it would delegitimize the entire social contract. In recent history, laws outlawing communist organizations were enacted because they in fact did advocate overthrow of the government. But romantic fantasies of freedom fighters die hard. The real protector of our liberties is not the Second Amendment, but the Fourth The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... An appeal to the Second Amendment to protect our rights nothing more or less advocating for anarchy.
Neither the right and left of our current time understand the Second Amendment is primarily about protection of the community as a whole. This is what the militia clause and its historical context teaches us. It is why I advocate that the students walking out are correct. Their right to live in a safe and secure environment supersedes the freedom of action espoused by the NRA and gun advocates. Protecting the community as a whole is the sole reason given in the Second Amendment for the lack of infringement to bear arms according to both a historical and strict constructionist logic.
Conclusions
First, an assault weapons ban would be not only allowed by the Constitution, but follow the spirit of the document to protect the most important rights of those who make up the community. It remains to be seen whether or not a reinstatement of a ban will be politically possible in our current environment. If not feasible, we should look for other solutions for protecting the safety of the state by regulating guns. One thing is clear, guns are not going away in our society anytime soon. They are too much a part of our history and culture. This does not mean we should give up trying to make a safer society.
Indeed a compromise solution may be found by appealing to the militia requirement. Perhaps states can form militias that essentially act to train and evaluate those who choose have more potent types of fire arms. We can indeed limit this to only those who would prefer to own semi-automatic firearms with the penitential for large ammunition clips.
Those who would want to own such arms, would need to report on a periodic basis (every few years?) as in colonial times and have their proficiency and safety practices evaluated. This type of arrangement actually occurs today in the modern republics of Switzerland and Israel. I realize that even suggesting such a solution will set off alarm bells from the right and left. The right will fear it is a way for the government to monitor those with powerful firearms. The left will fear a militarization of society. In fact both these criticisms have merit and should be considered in coming up with a solution as to what we should do about guns.
I am arguing that there are ways using the tools handed down to us by our predecessors to come up with solutions that meet the needs of our times and uphold our constitution. We need not devolve into a winner take all zero sum mentality, but can be true the spirit of our republic and work towards a consensus solution. I understand that this solution may not be perfect or last forever no less please everyone who has a stake in the outcome, but we must hope that we can make things better.
*While staunch Second Amendment supporters advocate there is no such thing as an assault rife, see the following article about the development of these types of weapons: https://www.rand.org/blog/2016/06/a-brief-history-of-the-assault-rifle.html
