Why the Second Amendment still matters
Despite critics labelling it a relic of a bygone age of muskets, the right to bear arms is no anachronism.
‘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.’
These few words from the Second Amendment, written over two hundred years ago, cause no end of confusion and rancour in the United States – especially now in the wake of the Newtown tragedy. Many will feel, with historian Richard Hofstadter, that ‘otherwise intelligent Americans cling with pathetic stubbornness to the notion that the people’s right to bear arms is the greatest protection of their individual rights and a firm safeguard of democracy - without being in the slightest perturbed by the fact that no other democracy in the world observes any such “right”’. Why, many wonder, is the US still in the thrall of the Second Amendment?
Some, particularly those from outside of the US, wonder whether the entire US Constitution is simply an anachronism. Indeed, according to research published last year, this sentiment has become increasingly prevalent over the past 25 years. Yet most American commentators continue to respect the Constitution. Some do argue that the Second Amendment should itself be amended. But gun-control advocates generally try to get around what would undoubtedly be a long and probably fruitless campaign to draft a new Amendment and get it ratified by two-thirds of the states. After all, gun control is an elite project; if it is to be realised, it won’t be through democratic methods.
So, like lawyers unwilling or unable to tackle the question of innocence or guilt head on, gun-control advocates try to get around the Second Amendment. This means that a lot of gun-control ire is aimed not so much at the Second Amendment than at those downright dastardly doers of despicable deeds, the National Rifle Association. For instance, Kurt Eichenwald complained in Vanity Fair magazine that ‘the Second Amendment has been twisted and bastardised in ways that could never have been conceived at the time of the nation’s founding’.
So have two centuries negated the need for the Second Amendment? Not in terms of technology: guns have changed in the past two hundred years, but they still throw lead from a metal tube. In the same way, the advent of new media, from the radio to the internet, does not alter the need for free speech to be guaranteed by the First Amendment.
Parallels between the First and Second Amendments do not end there. Speech may be used for harmful purposes, as is demonstrated by the classic example of ‘shouting fire in a crowded theatre’. Few who argue for gun controls think it would be reasonable to curtail free speech or amend the First Amendment to avoid a situation in which you might be trampled to death in a theatre. But these same people seem willing to outlaw weapons on the basis of the same statistically unlikely possibility that, without such controls, more children will be shot by psychopaths in schools.
It seems the Second Amendment is singled out for change. Some argue that it was never intended to guarantee individuals the right to weapons. Often discussed as the ‘collectivist interpretation’, ‘collective rights view’ or ‘republican view’, one of the more detailed arguments suggests that the Second Amendment was about militias, not personal gun owners. Now that militias are no longer necessary to ensure the safety of the state, neither is the right to bear arms.
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Saul Cornell, chair in American history at Fordham University, notes that the right to bear arms is a ‘civic right’ intimately bound up with military service; the individualist interpretation had to wait until the Jackson era in the 1830s. Others argue that the ‘people’ was a collective entity and did not refer to individuals. History professor Lawrence Cress argued that the Second Amendment in fact defended state’s rights against federal power.
Gun-control opponents usually opt for the individualist perspective. Robert E Shalhope, Joyce Malcolm, Stanford Levison and others, espouse this view: the Second Amendment guarantees individuals the right to ‘possess arms for their own personal defence’ (1).
The mistake made by both sides is that there is not necessarily a contradiction between individualist and collective perspectives. A collective right to vote implies individuals voting; in turn, voting would make no sense without the collective vote. We assume that both the collective and the individual do civic good. Similarly, armed defence implies that the citizen, whether individually or as a collective, wields weapons responsibly. One would hardly trust a soldier to wield a weapon collectively but not individually. It is the perception of the citizen and the relationship between citizen and state that has altered.
As criminology professor Peter Squires asked, ‘when did the gun turn bad? What is the relationship between the “civilising firepower” of those early pioneers who, according to the received history, laid the foundations of a great society, and the indiscriminate, destabilising violence of an illegal automatic weapon fired from the window of a car in a “drive-by” shooting in the suburbs of San Diego?’ (2) But the question really is, when did one’s fellow citizens become enemies? When did Americans with weapons transform from armed fellow citizens into gun-wielding psychos?
The second problem with this discussion is that the freedom to bear arms should be understood as a negative freedom. It is the freedom from seizure of arms by government rather than any sort of individual right to a weapon. No one ever thought of denying women the ‘right’ to own a weapon because it was not a right. All discussions were about who should not be allowed weapons, not who should have them.
As with free speech, it is restrictions that are the point. Should some guns be made illegal, they would have to be seized. They would become one of the few items (with illegal drugs) that would not be permitted in private homes; the police would have to break down doors and seize weapons. In the United Kingdom, not only must citizens apply for permission from the police to keep even a shotgun in their homes (and pay a licence fee), they must allow police inspections at any time of where and how the keep it.
It is this tyranny – of seizure of weapons by any government, whether federal or state – that the Second Amendment had in mind. This is why ‘the people’ and not states are given the right to bear arms. The prospect of such a tyranny has not faded with time. It is one reason why the Second Amendment remains relevant.
Finally, it should be noted that guns can also prevent tyranny and enforce equality. ‘God made men; Sam Colt made them equal’, as the frontier saying goes. In another of the many ironies of gun control, most of those who were liberal or left-wing prior to the 1970s sided against gun controls because they were most often directed at African-Americans, immigrants or others whom some thought were best left powerless.
Contrasting with liberal sentiment today, anti-slavery activists were indignant that African-Americans had their rights to bear arms abridged. At an Anti-Slavery Conference held in Paris in August, 1867, anti-slavery campaigner William Lloyd Garrison complained to a sympathetic audience that blacks were ‘not permitted to own or bear firearms in self-defence’ (3).
Whereas the moderate Booker T Washington espoused the control of guns at the turn of the twentieth century, the radical black leader WEB DuBois, a founder member of the National Association for the Advancement of Colored People (NAACP), praised armed black self-defence (4). Likewise, in postwar America, whereas Martin Luther King famously espoused non-violence, more radical voices like Robert F Williams noted that armed blacks were the most effective deterrent against Klan violence. Whites were unwilling to trade shots, he averred, with those whose lives they regarded as cheaper than theirs. Malcolm X also espoused armed self-defence and the Black Panther Party for Self-Defence held their first demonstration against gun controls at the California legislature.
The Second Amendment remains a powerful defence against the tyranny of seizure of weapons and a guarantee that all citizens have power in relation to the state and their fellow citizens. Those with an interest in preserving American equality and democracy – and such an interest does not end at the US’s borders – should rally in defence of the Second Amendment and recall that this legislation is not really about guns at all, but about the place of the citizen in a democratic republic.
Kevin Yuill is author of Assisted Suicide: the Liberal, Humanist Case against Legalisation, which will be published by Palgrave Macmillan early in 2013.
(1) Robert Shalhope, ‘The Ideological Origins of the Second Amendment’, Journal of American History 69 (1982) 599-614; Joyce Malcom, To Keep and Bear Arms: The Origins of an Anglo-American Right, Harvard University Press, 1996; and Legal scholar Sanford Levinson stressed the individual rights perspective in his aptly titled 1989 article, “‘The Embarrassing Second Amendment’, Yale Law Journal, Volume 99, pp. 637-659
(2) Gun Culture or Gun Control? Firearms, Violence and Society, Peter Squires, Routledge, 2000, p22
(3) Cited in the Special Report of the Anti-Slavery Conference held in Paris, 26 and 27 August, 1867 (London, the Committee of the British and Foreign Anti-Slavery Society, 1867), 82.
(4) Dominic J. Capeci Jr. and Jack C. Knight, ‘Reckoning with Violence: W. E. B. Du Bois and the 1906 Atlanta Race Riot’, The Journal of Southern History, Vol. 62, No. 4 (Nov., 1996), pp. 727-766
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