Download This PaperThe Second Amendment Demands Gun Regulation
35 Pages Posted: 23 Feb 2020 Last revised: 8 Nov 2021
Date Written: January 26, 2020
Abstract
The right to keep and bear arms. The militia. The Second Amendment includes both. Yet, the relationship between the two, and why they are connected in the Second Amendment, are opaque, shrouded in an archaic, stilted sentence structure and subject to the vagaries of an original public trying to extract an original meaning. The first part of the Second Amendment seems to be a black-swan preamble that justifies the amendment’s existence. The second part seems to recognize an existing right. Every argument, however, fails to connect the amendment’s two parts. We should stop to consider what it means that the amendment is so incredibly difficult to understand. Either: one, we seriously misunderstand the amendment; two, the Framers were sloppy and broke a “no preamble” rule; three, the Framers were incompetent at expressing themselves; or finally, the Framers didn’t have a meeting of the minds and the amendment has no real meaning. The literature has failed to consider that we might be completely wrong about the Second Amendment. Instead, the last three arguments are made, often implicitly, and the Framers are assumed to be incompetent at, and inadequate for, the task of drafting the amendment. We know, however, that the Constitution was written with great care, by people at least as smart as us, who had at least as much awareness of their place in history, as we have of ours. So let’s presume that we have seriously misunderstood the amendment rather than engaging in the blood sport of arguing against the Framers’ competence.
“The Framers could not have anticipated...,” is the phrase we use to dismiss their ideas and begin our ad hominem argument. This article argues for their ideas, their idealism, and their practicality, by making the philosophical argument. That argument asserts that basing every provision of the Constitution on a philosophical analysis of the underlying issues was critical to creating a stable document; one that would change only when we find that the original analysis was flawed. The philosophical mind of James Madison was engaged to accomplish this goal. This article clarifies the Second Amendment by asking and answering a series of important questions: 1) If the Second Amendment mentions the militia, and the Constitution mentions the militia, could those two things be related? 2) Does the Second Amendment modify the militia clauses of the Constitution? 3) If so, who wanted those clauses modified? and 4) Is there something wrong with the militia clauses of the Constitution? The answers to these questions are: 1) yes, 2) yes, 3) the Antifederalists, and 4) yes.
Of the ten amendments in the Bill of Rights, nine address subjects on which the Constitution was silent. The Second Amendment is different. It reaches back into the Constitution and changes it. The Antifederalists thought the power of the federal government over the militia was despotic, tyrannical, absolute. They used the Second Amendment to fix that.
Keywords: US Constitution, Second Amendment, arms, militia, militia weapon, conscription, lethality, gun violence, jury, posse comitatus, natural philosophy, US Declaration of Independence, Equal Men Abstraction, Newtonian Constraint
Suggested Citation: Suggested Citation