A Modest Proposal: Let’s Repeal The Second Amendment
“The Congress shall have Power. . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two years; . . . To provide for calling for the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; . . . To make Rules for the Government and Regulation of the land and naval Forces; . . . To provide for organizing, arming, and disciplining the Militia, and for governing such parts of them as may be employed in the Service of the United States, reserving to the States respectively the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;" Article I, Section 8, Constitution of the United States.
“The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Article II, Section 2, Constitution of the United States.
“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.” Amendment II, Constitution of the United States
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively , or to the people.” Amendment X, Constitution
of the United States.
The Constitution, read as an organic, internally consistent whole, makes it pretty clear that the Second Amendment right to “bear arms” was intended solely and specifically to provide for the defense of the nation in time of war or insurrection, under powers clearly delegated to Congress and the President in Articles I and II.
The Second Amendment is the only one in the Bill of Rights that has a specifically stated purpose, where the right to bear arms is prefaced with the qualifier that a “well regulated Militia” is “necessary to the security of a free state.” To the Founders, that “well regulated” Militia clearly meant the state militias, organized, trained and regulated “according to the discipline prescribed by Congress,” as provided in Article I, Sect. 8.
That well-regulated Militia, clearly, included only those state militias that would be called upon “to execute the laws of the Union, suppress insurrections and repel invasions.," as provided in Article I, Sect. 8. It clearly did not mean the likes of the paranoid, paramilitary Montana Militia whose members have recently traveled across state lines, down to Bunkerville, Nevada, to join an armed insurrection against federal agents seeking to execute the laws of the Union against a freeloading white racist cattle rancher who refuses to pay the nominal fees for grazing his herd on federally-owned public lands while ranting about "welfare queens." Those are our lands, not his private ranch, and they are maintained at our expense through our taxes.
But that, apparently, is not how the reactionary conservative majority on the Supreme Court views the Second Amendment. Instead of taking the express language of the Second Amendment at face value and reading it in context of the Constitution as an integrated whole, the 5-4 majority led by Justice Antonin Scalia, has chosen to read the Militia Clause right out of the Second Amendment. Scalia's opinion is a schizoid exercise of ideological sophistry, in service of the extremist right-wing paranoia he apparently shares with the gun crazed Montana Militia and the NRA.
Here’s Justice Scalia’s rationale, as stated in his majority opinion from District of Columbia v. Heller, 554 U.S. 570 (2008):
We reach the question, then: Does the preface fit with an operative clause that
creates an individual right to keep and bear arms? It fits perfectly, once one knows
the history that the founding generation knew and that we have described above.
That history showed that the way tyrants had eliminated a militia consisting of all
the able- bodied men was not by banning the militia but simply by taking away the
people’s arms, enabling a select militia or standing army to suppress political
opponents. This is what had occurred in England that prompted codification of the
right to have arms in the English Bill of Rights. The debate with respect to the right
to keep and bear arms, as with other guarantees in the Bill of Rights, was not over
whether it was desirable (all agreed that it was) but over whether it needed to be
codified in the Constitution. During the 1788 ratification debates, the fear that the
federal government would disarm the people in order to impose rule through a standing
army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from
The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242
(H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s
“command of the militia” could be used to create a “select militia,” or to have
“no militia at all,” but also, as a separate concern, that “[w]hen a select militia is
formed; the people in general may be disarmed.”
554 U.S. at 595.
Here, let’s put Scalia’s breathtakingly agenda-driven casuistry aside, having his law clerks scurry around to cherry-pick selected factoids from pre-ratification anti-federalist screeds. What's really astonishing is how his reasoning expressly adopts the right-wing paranoia that drives the Montana Militia and NRA gun fetishists.
What is the Constitutional basis for his concern about “tyrants” who would eliminate a militia by “taking away the people’s arms?” How is that concern any different from what is driving the Montana Militia today, facing down federal agents in Nevada through armed insurrection, interfering with those agents' effort to execute the laws of the Union? How does that comport at all with the express language of Article I, Sect. 8, that clearly states the Founders' intent that the Militia will be called upon to suppress insurrections? If the Founders actually wanted the Militia to rise up in insurrection against the federal government, as Scalia's reasoning would have it, why didn't they say so in the preface to the Second Amendment instead of qualifying the right to bear arms with the Militia Clause?
Clearly, the Heller majority’s analysis of the Second Amendment runs directly against the Founders' stated purpose, which was to have a well-regulated and armed militia available to help execute federal law, not rise up in arms against federal law as the rag-tag Montana Militia is doing today in Nevada. That uprising, clearly, is criminal activity, but it would be protected under the majority’s expressly stated rationale in Heller that has effectively read the Militia Clause out of the Second Amendment. It's also a fair question to ask how Scalia and company would rule if one of those Montana Militia gun nuts shot and killed a BLM agent and were tried for murder. Would they overturn his conviction based on Scalia's rationale in Heller,? How would they distinguish it from the rights of the people purportedly protected under Scalia's reading of the Militia Clause?
The Militia Clause is in any event now irrelevant. We now have a standing army that is funded through Congress’ power to levy taxes for the “national defense” under Article I, Section 8. That funding is invariably and enthusiastically voted for by present-day “conservative” Republicans in Congress, even though the term “defense” has been perverted to include wars of aggression in places like Vietnam, Iraq and Afghanistan. Since the Militia Clause is thus irrelevant, so is the Second Amendment itself when properly understood in both context and its clearly stated purpose.
America does not need an armed citizenry any more, to form well organized state militias to be called upon to execute federal laws, suppress insurrections and repel invasions as the Founders clearly intended. Therefore, the federal government’s constitutional interest in having an armed citizenry is now obsolete, and the issue of gun control has become entirely one of public safety, an area that is unquestionably reserved to the states under the Tenth Amendment.
Initially, the Bill of Rights was based on a concern to limit the power of the federal government, not the states. This fact is tacitly confirmed in Scalia’s reasoning in Heller as cited above, where the anti-federalists were concerned about Congress’ power to take guns away from the people, not state action. That concern for limiting federal power and not state power is also stated in the tenth amendment, reserving powers not delegated to Congress or the President to the states and to the "people."
Today, therefore, the question of gun control is a matter of state concern in which the “big” federal government has no real, compelling interest. Without the clearly important federal concern for national defense, the federal government has no legitimate reason for upholding an individual right to own firearms through the federal courts, while the states have a clearly compelling interest in regulating gun ownership in the interest of public safety.
This compelling interest is more than sufficiently evidenced by the ever increasing incidence of gun violence throughout America, and it should be left to the citizens of each state, acting through their elected local leaders, to determine who can possess which firearms and under what conditions as a matter of “states’ rights.”
If the citizens of Texas or Florida want to elect a legislature to enact “stand your ground” laws that permit carrying guns around in public without limit and thereby incur the risk of increased gun deaths, so be it. But the good people of Connecticut, California or Massachusetts should have an equal right to protect themselves from such insanity. The federal government, within its jurisdiction, should also have the same power to ban firearms when appropriate and necessary for public safety on federal lands, as with the Montana Militia morons in Bunkerville today, and to prosecute violators accordingly.
Unfortunately, given the ideologically driven sophistry of the reactionary right-wing majority on the Supreme Court today, the only way to provide for such rational gun control any time soon will be to repeal the Second Amendment. So why shouldn’t we simply get rid of such an archaic provision that has been so absurdly twisted by an agenda-driven Court majority, just as we got rid of the fugitive slave laws, effectively repealing a portion of Article IV through the 13th Amendment after the Civil War.
The Second Amendment is equally obsolete and irrelevant to any important interest of We the People today as were the fugitive slave laws in 1865. So let’s just repeal it with an amendment that expressly reserves issues of gun control to the several states and exempts them from the full faith and credit mandate under Article IV, Section I, as to licensing.