“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.”
WASHINGTON – The Framers of the U.S. Constitution had the ethos of Aristotle as well as other big thinkers in mind when drafting their sacred document. And for at least one Second Amendment scholar, the Greek philosopher remains an inspiration as debate over the precise meaning of the second tenet in the Bill of Rights rages into the 21st Century.
“From Aristotle through the time of the American Founding Fathers and beyond, it was an axiom of liberal political thought that free governments armed their peoples while tyrants tried to disarm them,” said Don Kates, a former constitutional law professor and fellow at the Independent Institute in Oakland, Calif.
Kates is apparently referring to Aristotle’s “Politics,” where the philosopher declared: “In a constitutional government the fighting men have the supreme power, and those who possess arms are the citizens.”
But 222 years after ratification of the Bill of Rights in this country, the meaning and intent of the Second Amendment – “the right of the people to keep and bears arms” – continues to confound some modern-day thinkers.
“In reality, a part of the basis for the conception of the Second Amendment as an individual right is both constitutional history but also sort of the cultural significance of firearms ownership in the United States,” said John Hudak a Brookings Institution fellow.
John Hudak is a governance studies fellow at the Brookings Insitution
Debate over regulation of firearms – and what is permissible under the Second Amendment — came to the forefront on Capitol Hill this year after a series of mass shootings.
The stickiness of the debate stems from the vagueness of some of the wording in the Constitution and the limited definition of what the framers intended, according to Hudak, a fellow in governance studies at the non-profit Washington think tank.
But Sanford Levinson, a professor of law at the University of Texas in Austin, argues that the Second Amendment is clear in at least one respect. It should be thought of in terms of empowering the public to overthrow a tyrannical state, he said in an interview. However, he contends that that is “not what the Supreme Court said [in 2008] because that is much too radical a notion, so they transformed the Second Amendment into a self-defense amendment in the home.”
Levinson thinks that there is little “historical warrant for that,” but he does think the self-defense argument was a “was a widely shared view” by the mid-20th century.
In a 1989 article for the Yale Law Journal, Levinson talked about the reluctance of scholars and academicians to take the Second Amendment seriously. He called his piece “The Embarrassing 2nd Amendment.”
In 2013, the argument pits those opposing limitations on the Second Amendment, the purported right to bear arms, against those who want reasonable restrictions and question what the amendment really meant when it was ratified in 1791. Finding that balance, perhaps, is the most difficult part of the conversation.
To this day, the vagueness of the wording – “A well regulated militia, being necessary, etc.…” – haunts the debate over what restrictions government can impose on the purchase, possession and use of firearms.
“Eighteenth Century statements hailing the right to arms are so numerous that they literally fill a whole volume,” Kates said in a recent publication “The historicity of the Second Amendment Right to Arms.” He reiterated his views in a recent and interview.
To complicate the argument even more, advancing technology shapes the discussion because firearms today are vastly different – more efficient and lethal – than the 18th century weaponry of flintlock muskets.
“So that creates this difficulty of both a combination of vague constitutional language and constantly evolving and advancing technology on the issue,” said Hudak who previously served as program director and graduate fellow at the Center for the Study of Democratic Institutions at Vanderbilt University, a nonpartisan research center in Nashville.
“No one rational in the United States thinks the individual has the right to a nuclear arm. And from that extreme you have to figure that there are restrictions that are reasonable,” Hudak said. “The possession of a handgun, the criminalization or outlawing of a handgun in the normal course of one’s life, is considered too extreme of a restriction. But, of course, restrictions do exist — the court just hasn’t been absolutely clear on what those [what can be regulated] are.”
One of the biggest points of contention is sale and possession of so-called assault weapons. These guns have a higher muzzle velocity and differ dramatically from muskets of the Revolutionary War.
But handguns are far more prevalent than assault weapons, easier to conceal, and potentially just as lethal.
The challenge is to find a way to bridge the gap between champions of an individual right to bear arms – a right that “shall not be infringed” — and gun safety advocates who argue that some extremely dangerous weapons should be restricted.
Gun control advocates also want background checks on gun buyers expanded to better enforce existing law that prohibits felons and the mentally ill from purchasing firearms.
Hudak gave an example of a guide for a rule or technique to assess the firearms of the future. In previous decades, he said the courts went back and forth on what constituted pornography until the 1973 Miller v. California ruling, where the Supreme Court redefined obscenity standards without — in the court’s opinion — violating the First Amendment. Hudak foresees a potential for the gun debate to go down this path.
In 2008 a landmark decision by the Supreme Court in District of Columbia. v. Heller ruled that the Second Amendment is an individual right to possess a firearm for lawful purposes, such as self-defense.
“What is likely going to happen in the next five to 10 years is that we will go down one of those two paths, either the [Supreme Court] court will start issuing narrow rulings on guns, like Heller was, or they’ll just throw their hands up and finally say we are not filling our docket with gun cases every term.”
Should the court continue to track the debate – as in the first path cited by Hudak – one could hope the justices would shed light on what the framers meant in 1791 with the phrases, “A well-regulated militia” and “shall not be infringed.”
“The way we conceptualize the American military today is very different from what the American military looked like in 1787,” Hudak said, referring to use of the words “regulated militia.”
In the late 1700s and early 1800s the United States was a fragile democracy that was vulnerable to attack and invasions. There was only a small standing army and the need for an armed, well-regulated militia was obvious.
“A well-regulated militia essentially means the ability of a military to do what it needs to do,” Hudak said. “Regulation not in the way we think of an EPA regulation but in the idea of a military being skilled, trained and disciplined to carry out a war.”
In those early years of the Republic, the U.S. faced increasing belligerence against its sovereignty, whether at home or at sea.
The War of 1812 was premised in part on the fear of some patriots that the British might launch an attack on the U.S. homeland. The undeclared Quasi-War in 1798 broke out after French ships marauded American vessels. In those instances the U.S. was vulnerable. Therefore what was needed was, “a pretrained set of civilians who could be ready to step up in a moment’s notice and fight a war,” Hudak said.
Professor Levinson said the debate is not likely to be settled in the foreseeable future — unless one side gives up.
“The fight is never going to be resolved by reference to what framers would have wanted or what the text of the Second Amendment is,” Levinson said.
During the process of ratifying the Constitution, both Federalists and Anti-Federalists were in agreement on the right to bear arms.
Don Kates said the Framers believed an armed populace was essential to the “diffusion of power necessary to preserve liberty.”
Kates cited the Federalist Papers, where James Madison argued that the U.S. government would not become a tyranny “because of the advantage of being armed, which Americans possess over the people of almost every other nation.” However, Kates said toward the end of Madison’s life, he came believe in the necessity of a standing army in the fledgling democracy called the United States of America.