"A well regulated Militia"

The fourth article of the Bill of Rights in the United States Constitution (somewhat confusingly also known as the second amendment), which came into force on December 15, 1791, 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”

When this amendment is brought up by those who support gun ownership in the US, they will almost always omit to quote the first half of this sentence, as it does not suit them to admit any qualification on their 'rights'. However, that qualification is very important - both historically, and now.

Why is this in the Bill of Rights?

In 1791 the United States had won a war of independence with Great Britain eight years previously, at which time the only “lawfully” constituted ‘army’ on the continent – apart from local militia - was the British Army. The revolutionaries needed an army of their own, fair enough. They initially constituted a ‘militia’ composed of Minutemen, other local militias and the early Continental Army which was initially largely disbanded in 1783.

Despite winning the war, the fledgling United States did not immediately have the men or money to form or arm an effective permanent army. It did form the Regular Army which expanded and contacted as required, but which was for decades dependent on additional militia.

For example, despite the temporary increase in Regular Army units in the War of 1812, nine out of ten infantrymen were militiamen, and at the end of the war in 1815 Congress set the peace establishment of the Regular Army at 10,000 men. These were divided among eight infantry regiments, one rifle regiment; and a corps of artillery, but no cavalry. In effect, most of the new regiments raised for the War of 1812 were treated as if they were volunteer regiments raised for the duration of the war and disbanded at its end.

There was therefore still a requirement for a militia which could be called upon in case of new hostilities. This militia would need to be armed and experienced in how to use those arms – more on this below, and were also regulated and underwent occasional training under the aegis of the various states.

The US now has one of the largest, best-funded, best-equipped and best-trained permanent fighting forces in the world, as well as the Federal and State National Guards, not to mention proper army reservists. It has no need of any other ‘militia’.

Even if it did, the Swiss army (actually a militia) requires only one weapon per household; recent mass killers in the US have been found to have over a dozen various weapons.

Let’s deconstruct the sentence that makes up this second amendment.

‘Well regulated’

If citizens bearing arms now fulfils the purpose of a militia, which it doesn’t, the concomitant requirement of being ‘well-regulated’ is totally absent. You can own a gun, but there is no requirement to register it, to train in the responsibility associated with weapons, or to be trained how to use them or even in basic safety measures.

It may surprise many that the NRA was originally formed largely to improve general marksmanship throughout the United States by means of ‘regulated’ gun clubs, and that in 1934 the then NRA President, Karl Frederick, said that:

"I have never believed in the general practice of carrying weapons. I seldom carry one. ... I do not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses."

Four years later, the NRA backed the Federal Firearms Act of 1938, and thereafter supported the Gun Control Act of 1968, which together created a system to federally license gun dealers, established restrictions on mail order sales of rifles and shotguns and prohibiting most felons, drug users and people found mentally incompetent from buying guns.

In the course of the early 1970s however, it gradually became more associated with the Republican Party - and arms manufacturers - and drifted hard against any form of regulation of ownership or registration, helping to undo many previous restrictions it had worked to establish.

The NRA and the Republican Party have since strenuously, and fairly successfully, resisted almost any form of regulation of gun ownership, including:

• background checks

• ownership registration

• limitation of weapon firepower.

‘Militia’

What did the term militia actually mean in 1791?

The word ‘militia’ is used precisely six times in the entirety of the US Constitution.

In Article I, Section 8 (‘The Congress shall have Power To’ section), thus The Congress shall have Power (inter alia):

• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

• To provide for organizing, arming, and disciplining, the Militia, and for governing such Part 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

In Article II, Section 2:

• The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States

In the second amendment, as we know:

• 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.

And finally, in the famous fifth amendment:

• No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

On May 8, 1792, Congress passed "[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States" requiring:

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia ... [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

There’s regulation for you.

Putting all these elements together we can plainly see that (at the end of the Eighteenth Century) the United States believed, in the absence of well-developed permanent national army, it needed to be able to call upon a disciplined and regulated Militia consisting of citizens with their own weapons for the nation’s self defence.

As stated above, given that the US now has one of the largest, best-funded, best-equipped and best-trained permanent fighting forces in the world, this requirement no longer applies, and has not applied for well over 100 years.

As a matter of interest, in 10 USC 246: Federal law continues to define the militia as:

all able-bodied males aged 17 to 44, who are citizens or intend to become one, and female citizens who are members of the National Guard.

The militia is divided into the organized militia, which consists of the National Guard and Naval Militia, and the unorganized militia.

The second amendment then, only now applies to the unorganized militia, or should we say disorganized Militia.

Furthermore, this definition of Militia raises a strict legal point of some interest, as it makes clear that it applies to female citizens only if they are in the National Guard; thus leaving open a legal argument that female citizens cannot avail themselves of whatever rights are provided in the second amendment.

One can only wait with keen anticipation for some concerned or aggrieved female citizen to take this point to the Supreme Court – if only to show how ridiculous the whole subject is.

‘Security of a free state’

As noted, in terms of national defence the US is well catered for; if it needs more soldiers it conscripts, arms and trains them as required.

However, flowing from another deeply rooted hangover from revolutionary days, there are those who believe that the second amendment is necessary to defend ‘the people’ from a tyrannical Federal Government when necessary.

Assuming for a minute that this is not just plain madness; the Civil War settled the issue that the Union is indissoluble, so the States do not need citizens to be armed to fight the Union – although they do still have local National Guard ‘militia’ - even though these are ironically, as clearly stated in the Constitution, ultimately under the direct control of the President as Commander in Chief.

Thus, the only remaining purpose of this argument would be that the US has an obligation to sanction the basis of domestic terrorism aimed against itself.

The Supreme Court

As with various other parts of the US Constitution, from time to time the Supreme Court has been called upon to interpret what this sentence means in practice, nowadays.

They have not distinguished themselves on any such occasion, unless you count vacillation, partisan pandering, logical inconsistency, and sophistry as distinguishing features.

The three main second amendment related Supreme Court cases are:

• United States v. Miller, 307 U.S. 174 (1939)

• District of Columbia v. Heller, 554 U.S. 570 (2008),

• McDonald v. Chicago, 561 U.S. 742 (2010)

A deep analysis of these judgements is pretty unedifying; and it is notable that the rationale of all these cases is so opaque that portions of all three judgement have been prayed in aid of their arguments by those in favour of, and those against, gun controls.

According to the Illinois Supreme Court in People v. Aguilar, 2 N.E.3d 321 (Ill. 2013) the seminal Heller case should be interpreted thus:

In District of Columbia v. Heller, the Supreme Court undertook its first-ever "in-depth examination" of the second amendment's meaning. After a lengthy historical discussion, the Court ultimately concluded that the second amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation"; that "central to" this right is "the inherent right of self-defense"; that "the home" is "where the need for defense of self, family, and property is most acute"; and that, "above all other interests", the second amendment elevates "the right of law-abiding, responsible citizens to use arms in defense of hearth and home". Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment.

You would be forgiven for wondering what all this talk about confrontation and self-defense has to do with a short sentence mentioning neither concept. Many pages on these, and other similar judgments also rabbit on about hunting, another concept equally foreign to the purpose, origin or meaning of the second amendment.

Ironically, one would think that the more ‘right-leaning’ Justices would be the ones less inclined to try and ‘update’ the second amendment with previously non-existent references to confrontation, self-defense and hunting – as they purport to be ‘originalists’ in terms of Constitutional interpretation.

As the new Supreme Court Justice nominee Amy Coney Barrett clearly stated in her Senate confirmation hearings only last week:

“As an originalist I interpret the Constitution to have the meaning that it had at the time people ratified it. It’s not up to me to update it”

For me, the most sensible words to emanate from Supreme Court Justices are either in dissenting opinions or extra-judicial statements.

Warren E Burger, a conservative Republican appointed chief justice of the United States by President Richard Nixon, wrote in 1990 following his retirement:

The Constitution of the United States, in its Second Amendment, guarantees a "right of the people to keep and bear arms". However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen ... People of that day were apprehensive about the new "monster" national government presented to them, and this helps explain the language and purpose of the Second Amendment ... We see that the need for a state militia was the predicate of the "right" guaranteed; in short, it was declared "necessary" in order to have a state military force to protect the security of the state.

In 1991 Burger further stated:

If I were writing the Bill of Rights now, there wouldn't be any such thing as the Second Amendment ... that a well regulated militia being necessary for the defense of the state, the peoples' rights to bear arms. This has been the subject of one of the greatest pieces of fraud – I repeat the word 'fraud' – on the American public by special interest groups that I have ever seen in my lifetime.

In 2008 in the minority opinion in Heller from Justices Souter, Ginsburg, and Breyer, Justice Stevens said:

The Amendment's text does justify a different limitation: the "right to keep and bear arms" protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase "bear arms" to encompass civilian possession and use, they could have done so by the addition of phrases such as "for the defense of themselves”

The redoubtable (and irreplaceable) Justice Ruth Bader Ginsberg further said in a radio interview in 2015:

When we no longer need people to keep muskets in their home, then the Second Amendment has no function ... If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only – and that was the purpose of having militiamen who were able to fight to preserve the nation.

Whilst not being Supreme Court Justices, I will give the final word on this topic to a 1992 opinion piece by six former American attorneys general:

For more than 200 years, the federal courts have unanimously determined that the Second Amendment concerns only the arming of the people in service to an organized state militia; it does not guarantee immediate access to guns for private purposes. The nation can no longer afford to let the gun lobby's distortion of the Constitution cripple every reasonable attempt to implement an effective national policy toward guns and crime.

Where Do We End Up?

There is a lot to say, and massive amounts of statistical data on gun incidents in the United States. I just want to pick up on three specific issues:

• deliberate shootings

• accidental shootings

• the rise of the new generation of self-styled ‘militias’

Deliberate Shootings

Gun violence in the United States results in tens of thousands of deaths and injuries annually. In 2017, the most recent year for which data are available as of 2020, the Centers for Disease Control and Prevention's (CDC's) National Center for Health Statistics reports that gun deaths reached their highest level since 1968, with 39,773 deaths by firearm, of which 23,854 were by suicide and 14,542 were homicides.

The rate of firearm deaths per 100,000 people rose from 10.3 per 100,000 in 1999 to 12 per 100,000 in 2017, with 109 people dying per day. In 2010, there were 19,392 firearm-related suicides, and 11,078 firearm-related homicides in the US. In 2010, 358 murders were reported involving a rifle while 6,009 were reported involving a handgun; another 1,939 were reported with an unspecified type of firearm.

About 1.4 million people have died from firearms in the U.S. between 1968 and 2011. This number includes all deaths resulting from a firearm, including suicides, homicides, and accidents.

Compared to 22 other high-income nations, the US gun-related homicide rate is 25 times higher. Although it has half the population of the other 22 nations combined, among those 22 nations studied, the US had 82 percent of gun deaths, 90 percent of all women killed with guns, 91 percent of children under 14 and 92 percent of young people between ages 15 and 24 killed with guns.

Gun violence against other persons is most common in poor urban areas and is frequently associated with gang violence, often involving male juveniles or young adult males. School shootings are described as a "uniquely American crisis", according to The Washington Post in 2018.

Legislation at the federal, state, and local levels has attempted to address gun violence through a variety of methods, including restricting firearms purchases by youths and other "at-risk" populations, setting waiting periods for firearm purchases, establishing gun buyback programs, law enforcement and policing strategies, stiff sentencing of gun law violators, education programs for parents and children, and community-outreach programs. Despite widespread concern about the impacts of gun violence on public health.

Congress has prohibited the CDC from conducting research that could be used to advocate in favour of gun control. That sentence I find so remarkable, I have to repeat it to believe it.

Congress has prohibited the CDC from conducting research that could be used to advocate in favour of gun control.

The CDC has interpreted this ban to extend to all research on gun violence prevention, and so has not funded any research on this subject since 1996.

Accidental Shootings

The victims here, and occasionally the perpetrators, are children.

• thus far in 2020, there have been unintentional shootings by over 220 children. This has resulted in 92 deaths and 135 injuries

• shelter-in-place orders during the coronavirus pandemic have led to major spikes in accidental shootings at home by children. Deadly unintentional shootings were up 43% in March & April compared to the same months in the previous 2 years

• around 77% of accidental gun deaths happen in the home

• from 2006-2016, almost 6,885 people in the U.S. died from unintentional shootings. In 2016 alone, there were 495 incidents of accidental firearm deaths

• accidental gun deaths occur mainly to those under 25 years old. In 2014, 2,549 children (age 0-19) died by gunshot and an additional 13,576 were injured

• adolescents are particularly susceptible to accidental shootings due to specific behavioural characteristics associated with adolescence, such as impulsivity, feelings of invincibility, and curiosity about firearms

• the majority of people killed in firearm accidents are under age 24, and most of these young people are being shot by someone else, usually someone their own age. The shooter is typically a friend or family member, often an older brother. By contrast, older adults are at a far lower risk of accidental firearm death, and most often are shooting themselves.

A statistically significant association exists between gun availability and the rates of unintentional firearm deaths, homicides, and suicides:

• in the United States, over 4.6 million American children live in homes with at least one unloaded, unlocked gun

• as gun sales in the US spiked by 70% in March 2020 when compared to March 2019, accidental shooting deaths by minors spiked by 43%.

• around 31 percent of accidental deaths caused by firearms might be prevented with child-proof safety locks and loaded chamber indicators

• a study from 2014 showed that those people that died from accidental shooting were more than three times as likely to have had a firearm in their home as those in the control

• a 2001 study found that regardless of age, people are nine times more likely to die from unintentional firearm injuries when they live in states with more guns, relative to states with fewer guns.

The rise of the new generation of self-styled ‘militias’

There have always been isolated sets of radical rightist and anti-Federalist groups that herd themselves in the boondocks with barns full of assault weapons and other military weapons waiting for the ATF to come and get them.

However, over the last few years in various parts of the United States we are now seeing cadres of private and very well armed extremist (at both ends of the political spectrum) militias patrolling the city streets with uniforms and assault rifles either protesting something, or protesting against other people protesting something – we have seen this most notable recently in Portland.

No self-respecting civilised democracy can afford to suffer such organisations to exist.

So far, these bands have resulted only in isolated instances of single deaths, but they are law and order accidents just waiting to happen. Again, thus far, despite the fact that no known interpretation of the second amendment have ever been propounded so as to justify this kind of armed mob behaviour under the constitution, the authorities have chosen not to engage such bands and seek to disarm them.

However, the day will assuredly come when opposing such militias will start a fire-fight, and then - equally assuredly - many local/state policemen and/or National Guardsman will die trying to stop them.

Such a travesty, other civilised countries seem to be able to avoid easily.

Conclusion

The second Amendment is radically outdated and is not properly enforced even under its own terms; furthermore, it encourages prolific unnecessary suffering and death - it badly needs amending.

If the US decides that citizens should be able to have weapons for hunting – then have an amendment that says so, and properly regulate the type of weapons and their purchase, storage and use. You probably don’t need a fully automatic assault weapon with anti-personnel bullets for this purpose.

If the US decides that the citizens need weapons for self-defence against other citizens with weapons – then have an amendment that says so, and properly regulate the type of weapons and their purchase, storage and use. Again, you probably don’t need a fully automatic assault weapon with anti-personnel bullets for this purpose.

However, as Barak Obama has noted, almost every other civilised country manages to regulate arms in such a way as to prevent frequent killing sprees, even those that have a strong traditional of game hunting such as the UK, Australia, New Zealand and Canada.