Second Amendment Redux

Slave patrol – a well regulated militia

I have written elsewhere about the Second Amendment of the US Constitution having its roots in two or three major aspects of USA history.

On 15 Dec 1791, the second (of an initial ten amendments) was appended to the US Constitution as part of the Bill of Rights.

“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.”

Nowhere, in not one single instance before the 21st century (2008), was this amendment taken by any court as a federal guarantee of an individual’s right to keep and bear arms.

A federation of “states” such as the USA – without a monarch at its head – had never been formed in quite this way.

The US Bill of Rights was based loosely on an English Act of Parliament passed in 1689.  A parliament had been convened largely in opposition to the deposed monarch (and convert to Catholicism) James II, with a majority of the English parliament having invited the Protestant William of Orange and his queen Mary (an Anglican daughter of James II) to become replacement sovereigns of England.

The 1689 Bill of Rights essentially laid-out the conditions for this invitation, outlining the rights which had been infringed by James II.  It was basically saying to William III “You can be King of England instead of James, but only if you honour these rights”.

This English Bill of Rights included a provision that “Protestants may have arms for their defence suitable to their conditions and as allowed by law…”

It is without doubt that this right was a product of the recent English Civil War, and the Wars of Religion in Europe, in which Protestants had suffered persecution at the hands of the Catholic Church-supporting aristocracy in many lands.

As students of history, we must realise that the writers of this Constitution were only two or three generations removed from these events in England.

The framers of the US Constitution were seeking to balance the power of the federal executive with the rights of states as a way to prevent the Presidency and Congress from morphing back into an over-reaching monarchy and elitist House of Lords in all but name.

Their worries were largely conjectural – the USA was in deep, deep debt post-Revolution and in no position to create a standing army large enough to be a danger to state governance anyway.

Perhaps even more important, by sub-contracting the formation of militias to individual states, the US government was relieved of a huge cost burden.

Finally, slave state economies simply could not function or exist without well-armed militias (aka slave patrols).  If the US government had attempted to remove slave states’ “…right of the people to keep and bear Arms…” as part of a “…well regulated Militia…”, there would have been uproar, and it is almost certain that the Bill of Rights and US Constitution would not have been ratified.

Anyone who doubts the centrality of slavery to American gun culture should read carefully the contemporary correspondence of men like Patrick Henry, he of the “Give me liberty or give me death” quote so beloved of Junior High School history teachers.  “Liberty” was clearly not a concept meant to extend to all humans. After all, our hero Patrick held dozens of slaves in bondage his entire life.  Mr. Henry was explicit in his worry that if an individual state’s right to maintain a standing militia were superceded by a centralised federal army, this federal army (full of potential abolitionists) might fail to arm or deploy itself sufficiently or act with the necessary severity needed to maintain the white supremacist status quo.

Once the USA realised and accepted that it was an empire in all but name, both states and federal government soon got over their queasiness about maintaining a national standing army.  St. Clair’s Defeat at the hands of a Shawnee/Miami/Lenape Confederation in 1791, and the US failure in its attempts to invade and annex Canada during the War of 1812, made the transition from irregular militias to a professional army an urgent imperative.

So let’s read this sacred amendment one more time…

“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.”

The words “well regulated militia” and “state” are not there by accident.

If it had been written with anything contemporaneously akin to AR-15s and teenage boys weaned on Call of Duty in mind, it would have stated simply that:

“The right of an individual to keep and bear Arms, shall not be infringed.”

A degree in history should be mandatory as part of all higher law degrees.

Many members of the US Supreme Court are supremely lacking in both a sense of ethics, and a sense of historical context in their decision-making.

(Author’s note: I am not anti-gun ownership, although I find the widespread availability and fetishisation of military style firearms disturbing and “weird”.  I have owned a fine old handmade double-barrelled 12 gauge shotgun most of my life, and cannot imagine what use I could make of an AR-15.  If the apocalypse comes, I’ll be more worried about seed potatoes than anything else.)