Stop accepting the fallacy
By Mike Kaarhus
"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." – The Second Amendment
01 JAN 2010. UNITED STATES – Recently I heard a pro-Second Amendment Congressman argue that Militia includes the people, and that the Second Amendment therefore guarantees to the people the right to keep and bear arms. I was dismayed. Why do some Second Amendment advocates think they must jump through the Militia hoop? Why don't they simply argue "Hey, the Second Amendment says the people can keep and bear arms, end of story"?
Apparently, it's because they think the argument is correct that says that the right to keep and bear arms applies only to the Militia. And so they think that, in order to preserve the people's rights to keep and bear arms, they have to define the people as the Militia. Here I will argue that it is fallacious that the Second Amendment applies only to the Militia, and that we the people err if we think we must jump through the Militia hoop, (or accept any fallacious argument), in order to defend our Second Amendment rights. I will also argue that misinterpreting the Second Amendment is a wrong way to try to abolish private ownership of firearms.
First, let's see why it is fallacious that the Second Amendment applies only to the Militia.
The idea that the Second Amendment is somehow mysterious or hard to understand is itself a fallacy – one that anti-gun rights activists use to try to confuse people. The Second Amendment is really rather simple. It is made up of two clauses: a main, and a subordinate. I call them the keep and bear clause, and the Militia clause (respectively). The 18th century writing style put the Militia clause (the subordinate one) first. The independent, standalone idea is in the keep and bear clause (the main one), which the writers placed second:
"... the right of the people to keep and bear Arms, shall not be infringed."
The Militia clause (the subordinate one) is not even a sentence:
"A well regulated Militia, being necessary to the security of a free State, ..."
The keep and bear clause contains the main idea, which is plainly stated: the people have the right to keep and bear arms. Gun ban advocates want us to think that the Second Amendment is mainly about the Militia. But the Second Amendment mentions the Militia only incidentally. The keep and bear clause could stand alone without the Militia clause. The Militia clause, however, cannot stand alone, nor does it establish anything. It is merely a phrase that references the Militia, and serves as a (somewhat flowery) introduction to the keep and bear clause. And so, contrary to what anti-gun rights activists would have us think, the Second Amendment is not really about the Militia. It is about the rights of the people to keep and bear arms. I thereby establish my first point:
Some may object that, if the Militia clause is essentially irrelevant (as I argue it is), then the founders would not have made it part of the Second Amendment. And so, they think they are legitimate in divining some unwritten intent in the Second Amendment – some idea concerning the Militia that the founders wished to imply without stating explicitly.
Such objections are prima facie incorrect. The founders were not ones to try to make important points or establish essential rights by dropping subtle, unspoken hints. They were direct and plainspoken concerning things they thought important; and the rights of the people to keep and bear arms is one of those things. Nor is there any record that I know of where the founders expressed reservations or doubts about the idea that the people have the right to keep and bear arms. It was from people alive today, and/or people who were alive in relatively recent years, that such reservations and doubts arose. Why then did the founders include the Militia clause? Why and how in the founders' minds was the right of the people to keep and bear arms connected to the necessity for a well-regulated Militia?
As far as I know, the founders didn't say; we can only speculate, hypothesize, and/or try to divine why and how. Here is my hypothesis, in case you are interested:
The people of that day knew how to use arms, and used them regularly to feed and defend themselves. The Continental Army did not have much money to train, pay, or arm troops. Most colonial men already owned arms, and knew how to use them. The Union needed them to join the Militia, and to thus save the Union the costs of training and equipping the necessary numbers to fill the ranks of the regular army. Not only was the Militia vital to the Union, but also it was vital that private persons (from whom the Militia was formed) become proficient in the use of arms. Thus, the Union needed private citizens free to keep and bear arms, and perhaps the founders wrote the Second Amendment partly in recognition of that fact. But, the mention of the Militia does not mean that there were not additional valid reasons why the founders wanted the people free to keep and bear arms.
Perhaps the founders chose to not state all the reasons. Perhaps they preferred brevity and simplicity to a long-winded rationale for the right of the citizens to keep and bear arms – a rationale that the citizens of that time already accepted as obvious, and took as a given. I will not here rehearse all the reasons; others have already done that.
Such speculations or hypotheses may be interesting, however, for the purpose of interpreting the Second Amendment, there is no fundamental need for them. The keep and bear clause gives the essential and salient message of the Second Amendment. The Militia clause is not essential or salient to the establishment of the right. Of itself, the Militia clause is incapable of establishing anything. There is no need for judges to fabricate and invoke some hypothesis that the Militia clause restricts the right to bear arms to the Militia. The founders said no such thing. From this, my second point follows:
"Arms" you must remember, is a rather large category of things. A stone can be an arm, as can a simple pike. I don't want a government that is powerful enough to prevent everyone from carrying sharpened maple branches, and neither did the founders. There is big problem with legislating a ban on guns from the bench – with seeking to ban private ownership of guns by contravening the Second Amendment with fallacious findings: Were such a tactic to succeed, then not only guns would be banned, but every kind of arm, even crude arms. Thus would be necessitated a behemoth, out-of-control government capable of preventing everyone from sharpening sticks.
Gun ban advocates cannot get the fine-tuning they want by simply misinterpreting the Second Amendment. If they want to ban only guns, they have to do it with laws, and through Congress; judicial activism is too blunt a weapon. It would be like swatting a fly with a wrecking ball. I do not, however, simply invoke the Constitution or the Bill of Rights as a rationale to dismiss the wishes of the citizenry today.
The 18th century Constitution and Bill of Rights, for example, contained no prohibition against slavery. I don't want slavery legal, so I like the fact that the Constitution was amended to prohibit it. Similarly, there was in the 18th century Constitution no section giving women the vote. Does that mean the founders were racist and/or sexist?
No. It means that they had more than enough to deal with just gaining independence from Britain – a goal that some colonial women and blacks also fought to obtain. They could not with their limited resources accomplish all desired rights in one fell swoop. Freedom and independence had to be given priority. But the founders established a method by which the Constitution could be amended. And it later was amended to establish more rights.
Similarly, if today the people decide that the nation would be better served by banning private firearms than by permitting them, then they are free to use the amendment process to do so. Personally, I think the right of the people to keep and bear firearms is a very wise, good, and practical idea. And I would oppose an amendment to the contrary. But I would respect the wishes of the people if they foolishly amended the Constitution to ban private ownership of firearms.
We who want to preserve the right of the people to keep and bear arms err when we suppose that, in order to do so, we must meet the requirements of a fallacious argument. We don't have to prove that We the People are the Militia in order to argue that the the Second Amendment grants to the people the right to keep and bear arms. But if we think we must prove that the people are the Militia, then we are playing a parlor game concocted by anti-gun rights activists. We are implicitly granting them that their fallacy has legal significance!
I do not grant that to anyone. My right to keep and bear arms does not depend on someone defining me as a Militia member. I am not a Militia member. I am one of the people. My right is expressly granted to me by the main and independent clause of the Second Amendment: the right of the people to keep and bear Arms, shall not be infringed. It is perfectly clear and plain of itself. That leads to my final point: