Amid the debate and calls for action in the wake of the Newtown massacre, it’s instructive to take a historical perspective on the Second Amendment to the U.S. Constitution. The Supreme Court ruled in 2008 that the Constitution guarantees individuals the right to possess guns in their homes for self-defense, and in 2010 clarified that this right must be recognized in every jurisdiction in the nation. Both were 5-4 decisions, reflecting a lack of consensus among legal minds about the meaning of the Second Amendment, which reads in full: “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.”
Such disagreement is nothing new and by no means restricted to gun policy. It dates to the earliest days of the nation, when Federalists, informally led by figures like Alexander Hamilton and (despite his protestations of impartiality) President Washington, favored a powerful executive, while the Republicans of the time, led by Thomas Jefferson and James Madison, believed more idealistically in the will of the people, admired the French Revolution, and favored more Congressional power. These two proto-parties disagreed vehemently about whether the Constitution leaned one way or the other.
The Bill of Rights, which includes the Second Amendment, had come about in the first place because of a disagreement about the Constitution’s meaning and character. Some said individual rights didn’t need to be spelled out because the body of the Constitution itself adequately asserted that government possessed only the powers enumerated therein. Others, afraid government would grab additional powers if unchecked, advocated the positive declaration of specific rights. The latter argument won out, resulting in the first ten amendments (the Bill of Rights). So it was not an infallible judgment from the gods, but a conflict about the meaning of the Constitution, that produced that enumeration of what we treasure today as some of our most basic rights. And amendements can be superceded or rescinded, as was the case with Prohibition.
American society has continued to hash out interpretations of the Constitution. The Supreme Court interprets and re-interprets the Commerce Clause, for example, to determine the constitutionality of federal laws that couldn’t have been dreamed of by the framers. And advocates of gun rights and gun control will continue to argue over the Second Amendment in spite of the Supreme Court’s recent rulings.
However, the outdated nature of the Second Amendment is plain in its text, and thus the Supreme Court is wrong to use it to decide questions of gun rights. The subordinate clause to the “right to bear arms” explains that that right comes about because of the need for a “well regulated militia.” That’s because it was written at a time when there was no standing army. After the Revolution, the Continental Army more or less dissolved, and the new country’s military forces reverted to state militias comprised not of professional soldiers but of citizens who undertook to take up arms on a part-time basis as needed. Strongly distrusting the idea of standing armed forces because they feared monarchical power, the Republicans of the time favored this state of affairs and resisted efforts by Washington and the Federalists to create a standing army.
When Madison formulated the Bill of Rights, he wanted to assure the many Americans aligned with Republican sentiments that the federal government wouldn’t disarm their militias and assert federal military power, a real fear at the time. Today, of course, we no longer have militias, and all but the country’s farthest-right fringe elements agree that even if the federal government deserves no other portfolio, it should be responsible for national defense. In any case, we no longer depend on militias for that purpose.
The fact that the Second Amendment is outdated doesn’t necessarily mean a right to bear arms no longer exists. What if the Bill of Rights had never included that right, or if a Bill of Rights had ultimately been deemed superfluous and never written down in the first place? It’s hard to imagine, in that event, 18th century federal marshals going about confiscating everyone’s guns. A right to own guns could have been discerned then, and could be now, in other ways.
It’s important to remember, then, that the Constitution is a fallible document, in part because it is a product of its time. More pertinent to today’s gun debate than the 18th century military situation are the advances in weapons technology since the time of the framers, who didn’t imagine automatic and semi-automatic weapons or 30-bullet cartridges. The difference between military weaponry on the one hand, and guns intended for personal defense or hunting on the other, is now so vast that “arms” (as in a “right to bear arms”) can no longer be considered an integral concept. We need to decide the legality and terms of possession of weapons on the basis of their sheer destructive power.
Making it harder for unstable or irresponsible people to get their hands on military weapons won’t stop gun violence, most of which comes from handguns anyway. But it might prevent some horrific massacres – and it will say much about who we are as a people.