Amending the Second Amendment

Michael Bloomberg has money to burn, and thinks that his financial success gives him the right to tell other people how to live their lives. The Napoleon of Manhattan has long hated firearms that don’t belong to his phalanx of highly-paid former NYPD bodyguards. He has spent millions of dollars attempting to shape elections and public opinion against owning firearms, with mixed results.

Bloomberg’s thinking about firearms at any given moment are always revealed in the messages broadcast from his three primary anti-gun news outlets, Moms Demand Action, Mayors Against Guns (they should have dropped the pretense that they were only against “illegal” guns long ago), and Bloomberg Businessweek.

Bloomberg and his paid-for allies recently began attempting to float the idea that the Second Amendment should be either struck down, or so fundamentally altered as to make it meaningless.

Paul M. Barrett champions the latter approach in his Bloomberg Businessweek post, Gun Control and the Constitution: Should We Amend the Second Amendment?

In it, Barrett takes some interesting, if somewhat deceptive positions.

For a couple of centuries, you might be surprised to learn, the Supreme Court didn’t say exactly what the Second Amendment means. As far as Stevens can tell, “federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”

Perhaps Barrett has never heard of Supreme Court Justice Joseph Story.

Born in 1779 (the same year that the 22-shot Girandoni “assault rifle” was created), Story was a Supreme Court Justice who served on the Court from 1811-1845. The son of a member of the Sons of Liberty who participated in the Boston Tea Party, Story had the opportunity to pore through the laws, letters, and correspondence of the Founders while the ink on these documents was still relatively fresh. As a result, Story’s Commentaries on the Constitution of the United States, first published in 1833, is regarded as on of the definitive texts on the jurisprudence of the Constitution.

Of the Second Amendment, Story wrote:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

Story knew that the role of the Second Amendment was to help ensure that American citizens retain arms of contemporary military use, and the skill to use them in war against foreign invaders or a corrupted government.

It was this armed and well-regulated citizenry that was, as Story noted, a “strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

It is vital to keep in mind that “well-regulated” meant “smoothly functioning,” or “in good order,” and describes a citizenry well-trained at arms and the art of war. It never meant—and could never logically be interpreted to mean—legislated into obscurity.

The Founders were explicit. They wanted a citizenry capable of going toe-to-toe with corrupt government forces in battle and triumph over them, a position that Story both confirmed and worried over immensely.

It was Story’s concern that the American people were becoming complacent, and not keeping up their skill at arms. He was worried that if men did not keep up their skill at arms, “indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.”

Supreme Court Justice Joseph Story, son of one of the Sons of Liberty,  did not know the names of Michael Bloomberg and Paul Barrett but he knew that one day men like them would come to undermine the Second Amendment… and the Republic itself.

One can only surmise that Justice Story also knew that one day he would be followed by lesser minds on the Court, including 93-year-old former Justice John Paul Stevens, who has seen his mental acumen dull with age.

In his dotage, Stevens perversely suggests that the Second Amendment should be rewritten with five additional words in the hopes of fundamentally transforming an individual right into a right of government.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the militia shall not be infringed.

Presumably, Stevens would rewrite the Second Amendment this way thinking that it would restrict arms to those serving in the National Guard and Reserves. It actually changes it not one bit… or it could perhaps be argued that such a change explicitly requires arming Americans with contemporary military arms.

While Stevens seeks to rewrite the Second Amendment to constrict it to those “serving in the militia,” he fails to grasp the simple fact that the militia has two components, or classes.

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

In the plain English of U.S. Code, the unorganized militia is every able-bodied male 17-45.

Presumably, Barrett and Stevens will accept that the revised Second Amendment they champion will require arming the unorganized militia the same as their federally-organized militia counterparts in the National Guard and Reserves.

This must necessarily include the striking of the National Firearms Act of 1934, The Gun Control Act of 1968, and the Hughes Amendment of the Firearms Owners Protection Act of 1986, so that the militia could receive submachine guns, selective-fire assault rifles, grenade launchers, crew-served machine guns, mortars, rockets, mines, explosives, hand grenades, and other arms of military utility, without infringement.

Presumably, the current U.S. Code restrictions limiting the militia to able-bodied males aged 17-45 would be challenged in the courts, as it unfairly discriminates against women, the disabled, and older members of the unorganized militia. This is patently sexist and ageist, discriminating against military veterans and civilians who have intimate knowledge of these systems, and the skill to use them far beyond the arbitrary age restriction of a mere 45 years. After all, old militiamen have often acquitted themselves well in battle. Samuel Whittemore was 80-years old on April 19, 1775, when he cut down 3 British Regulars on the Concord Road.

Is this the route down which Bloomberg, Barrett, and their allies would truly like to proceed?