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When it comes to the federal Bill of Rights, I figure the provisions mean what they say, and often, it's clear.
For instance, Congress shall make no law ...
abridging the freedom of speech, or of the press,
is
forthright. No law
means no law,
not
exceptions for whatever some non-elected bureaucrat
deemed important to national security
or they really
meant we should have laws to protect impressionable
children from racy material or the rantings of dimwitted
white supremists.
The Second Amendment, though, isn't as clear: 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.
Is this a personal right or a right exercised through the state government's militia?
Constitutional scholars point out that the federal
constitution, with its preamble We, the people of the
United States,
is a compact of the people,
not
the states.
So when the Constitution talks about
the rights of the people,
it means individual
rights, not the rights of states of the union.
The meaning of militia
seems to change over time.
Did the founders mean that only members of a well
regulated Militia
should keep and bear arms
? Or
was an armed populace the way to regulate
the
militia, to keep the government from trampling on other
liberties?
That one could be argued for the rest of this millennium and the next, so perhaps we should look elsewhere for the intent of the Founding Fathers.
Search their other papers as I might, I've never seen a word in favor of any state or federal regulation of firearms, and there are favorable references to individual ownership as a means to prevent tyranny.
Another way to consider this: Did the Founders intend for the government to have a monopoly on deadly force, or was this power also to be held by individual citizens?
When the federal Constitution was written in 1787, the most potent weapons system was a wooden sailing ship bristling with cannon. The Founders did not reserve these armaments for state or federal government, but presumed that individuals might also own warships.
The evidence is in Section 8, where Congress is granted
power to grant Letters of Marque,
and in Section 9,
where states are forbidden to issue such letters.
What's a Letter of Marque? The dictionary at hand says
A document issued by a nation allowing a private citizen
to equip a ship with arms in order to attack enemy
ships.
Letters of Marque were abolished in 1856 by an international treaty, but it does seem clear that the Founders believed that individuals had the right to own and deploy the most powerful weapons of the day.
On the other hand, it could be argued that the granting of the Letter was a form of licensing. No one seems to know which scenario the Founders had in mind:
1) The owner of an already armed ship applying for a Letter of Marque, or
2) The owner of a ship receiving the Letter of Marque before installing the cannons.
The history of guns in the United States isn't much
help, either. No matter how often you read that the
West wasn't won with a registered gun,
the fact is that
lawmen tamed the wild cattle towns of Kansas by requiring
cowboys to check their sidearms at the city limits.
Further, the gun that won the West
probably
wasn't a Sharps, Colt or Winchester. Many historians
credit the mountain howitzer, a small cannon often towed
with cavalry detachments, rather than any civilian
firearm.
This brings up another point. No matter how much our
pioneers believed in their right to keep and bear arms,
they wanted to keep that right to themselves. The frontier
trader who sold guns to Indians
was deemed an enemy
of society, rather than a civic-minded soul who was
extending the Second Amendment to the first Americans.
Some scholars say that the first American gun-control laws were passed in the South during Reconstruction, and these laws were designed to keep guns out of the hands of recently freed slaves, lest they start defending themselves from the night-riding terrorists of the Ku Klux Klan.
Much the same held in the labor wars in the mining districts: the first task for the state militia was to disarm the striking miners, while the company guards got to keep their rifles, pistols and machine guns.
Given the rather oppressive history of American gun-control laws, the modern political alignments seem surprising. Republicans ought to campaign for strong gun-control laws, perhaps with licensing to insure that only the right kind of people are armed. Democrats should be fighting to arm everybody, especially the marginalized and oppressed, and perhaps even to offer rifle vouchers and ammo stamps.
It hasn't worked out that way, of course, and so the present is just as confusing as the past.
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