DEMOCRACY & THE SECOND AMENDMENT Karl Rogers

Copyright © 2012, 2013 by Karl RogersSecond edition Published by Trébol PressLos Angeles, Californiawww.trebolpress.com All rights reserved. No part of this publication may be reproduced or transmitted in any form orby any means, electronic or mechanical, including photocopying, recording, or any otherinformation storage and retrieval system, without permission in writing from the publisher. info@trebolpress.com ISBN-10: 14894077385ISBN-13: 978-1484077382 Printed in the United States of America

DEMOCRACY & THE SECOND AMENDMENT Arguably, one of the biggest political mistakes of the Democratic Party and the American Left ingeneral has been their opposition to the right to bear arms. This has effectively alienatedAmerican gun owners, especially among the white working class in rural communities acrossAmerica. This has allowed the Republican Party and the American Right in general to positionthemselves as the allies of the American white working class, despite the fact that this politicalparty supports the same moneyed interests that have suppressed and exploited this class. Theargument of this booklet is that it is time that the American Left reconsidered its ratherreactionary and shallow understanding of the right to bear arms, as given in the SecondAmendment of the US Constitution (ratified in 1791):[1] “A well-regulated militia being necessary to the security of a free State, the right of the people tokeep and bear arms shall not be infringed.” Having said this, it is important to be clear from the outset that the argument below is notpremised on a sheepish and mindless adherence to the wording of the Constitution, as if it werea sacred text written in stone. The Constitution was not written to be blindly followed asdoctrine. It is a document written by human beings, warts and all. Its purpose was to provide aframework for equality under the law and to provide the foundation upon which people coulddevelop a shared understanding of the nature of good government and citizenship. Given thatArticle V presents the procedure by which the Constitution can be amended, it is evident that theFramers at the Philadelphia Convention were aware that the people would need to amend it fromtime to time, and adapt it to changing circumstances, such as the abolition of slavery or theformation of political parties. Thomas Jefferson (who was not present at the PhiladelphiaConvention) went even further and argued that it should be rewritten by every generation (everynineteen or twenty years or so).[2] Like it or not, the Constitution is a living document. It is opento differences of interpretation among the members of each generation of Americans, as they tryto apply it to the changing circumstances and needs of America. This is not only unavoidable, butit is desirable in a democracy. Debates over the “original meaning” of the words written in the eighteenth century are helpfulfor interpreting the Constitution, but they are not binding absolutes. Without performing a séance,we cannot know what the Framers intended. Their circumstances were different from those ofcontemporary America, and they probably would have written a different document were they towrite the Constitution today. The meaning of the wording of the Second Amendment remainsopen to interpretation. In fact, the exact wording of the original Bill of Rights (which hangs in theUS National Archives in Washington D.C.), as written by congressional clerk William Lambertin 1789, differs from the wording of the document ratified by the States. It reads: “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.” There are two additional commas. Do these commas change the meaning of the sentence?Perhaps they do. Or perhaps this is just an old fashioned way of writing that represents pauseswithout significance. Or perhaps they are just smudges. Do we really need to know? Of coursewe don’t. What matters is how the Constitution helps and guides people to better understand howfreedoms and rights—such as the right to keep and bear arms—should be exercised and applied,or, if need be, amended. This comes down to an ongoing and incomplete experiment in self-governance of the people, by the people, and for the people. Furthermore, even though themeaning of the Second Amendment must be situated within the historical context of the AmericanRevolution and the founding of a new nation—as expressed in the Declaration of Independenceand the Constitution—it also must be situated in ongoing democratic deliberations about what itmeans to be a good citizen, with natural rights to life, liberty, and the pursuit of happiness, andhow this relates to good government, which governs with the consent of the governed. Thiscomes down to fundamental questions about human nature and our relation as citizens with thestate. Any answers to these questions are themselves part of the ongoing American experiment inself-governance. How Americans understand and develop and share their experiences of thisexperiment will change and develop in time, in response to changes in American society and thewider world, as well as changes in language, demographics, culture, values, and the aspirationsof the American people. It also should be pointed out that there are many American gun owners who considerthemselves to be progressive or liberal, and either support the Democratic Party (or a ThirdParty) or do not vote. There are also many Americans who consider themselves to beconservative or libertarian, either support the Republican Party (or a Third Party), and do notpossess any firearms, nor wish to. It is not a right or left wing issue. The problem is that it hasbecome widely perceived that the American Left and Democratic Party oppose the right to beararms. They have become perceived as “gun grabbers.” In part, this is due to the machinations ofthe right wing propaganda machine.[3] But, it is also in part due to the failure of the AmericanLeft to develop a positive and substantive position on the Second Amendment and thedemocratic purpose of the right to keep and bear arms, rather than merely offering a media-ledseries of knee-jerk reactions to horrific and evil mass shootings and murders by armed madmen,such as Virginia Tech in 2007 when Seung-Hui Cho shot and killed 32 people and wounded 17others before killing himself, or, more recently in 2012 at the Sandy Hook School, Newtown,CT, when Adam Lanza shot and killed his mother, 20 children, and 6 adults before committingsuicide. While the need to do something—anything—to stop these kinds of atrocity fromhappening is quite understandable, given the monstrousness of these pointless acts of violence,we should try to take a step back and approach the situation in a reasoned and thoughtful mannerif we really want to understand the situation and improve matters. We need to start with anattempt to understand the purpose and meaning of the Second Amendment. Before proceeding to present a positive and substantive position on the Second Amendment,it is necessary to map out the contemporary positions in regard to the Second Amendment. Let’s

start with the opposition to the Second Amendment. Generally speaking, opposition to the Second Amendment is based on the position that it is anobsolete amendment—unnecessary in a modern society—and that it should be repealed. Ingeneral, this position is based on the following premises: Violence is morally wrong;Firearms make violence easier;Legally available firearms make it easier for violent people (i.e. criminals or lunatics) to obtainthem. According to advocates of this position, the right to keep and bear arms should be limited to thepolice and the military. The argument is that individual citizens should either have no right tobuy and possess firearms, or only have a strictly limited right (i.e. firearms of a limited caliberand rate of fire, limited magazine capacity, usable only in shooting clubs or by historicalreenactment societies, subject to background checks and requiring a permit, etc.) Advocates of alimited right to bear arms have also argued that all firearms should be registered in a nationalregistry, self-defense should not be considered as a good reason to possess a firearm, and thedefense of the citizenry from armed criminals should be left to law enforcement. This positionpresupposes that the citizenry cannot be trusted with modern firearms and that the governmentshould strictly control or have a monopoly over the means to inflict violence. Henceforth, I shallterm this position as the statist interpretation of the Second Amendment. Advocates of the statist interpretation also often argue that legally available firearms make itmore likely that accidents involving children and firearms will happen, and also make itpossible for disturbed children to obtain firearms and take them to school. Massacres such as theColumbine high school shooting in 1999 are often cited as one of the consequences of a legalfirearms industry.[4] They will also cite concerns about vigilantes or militias, such as theMinutemen or Black Panthers, taking the law into their own hands and innocent bystanders beingcaught in the crossfire. Legally obtained firearms have also been used in incidents of domesticviolence (including the murder of children) and by individuals who panicked and mistakenlykilled someone they perceived to be suspicious and a threat. The “Stand Your Ground” laws instates such as Florida have come under the media spotlight since Trayvon Martin was shot andkilled by George Zimmerman in February, 2012. The statist interpretation is based on the belief that strict gun control reduces the number offirearm related deaths. This seems reasonable. But, is this true? While most accidental shootingsare the result of hunting accidents, there have been too many unfortunate incidents in whichinnocent bystanders were killed in the crossfire between untrained people using firearms. TheChildren’s Defense Fund reports that 408 children under 15 were killed by firearms in 2008,354 in 2009, and 116,385 children and teens since 1979.[5] Some evidence also suggests thatthe presence of a firearm in the home increases the chance of suicide or a crime of passion, oftenin conjunction with drug or alcohol use.[6] Removing firearms from the general population

reduces the likelihood that petty (unorganized, opportunist) criminals, curious or alienatedchildren, or mentally ill people will gain access to firearms, and if they do, they are limited toair pistols, imitation firearms, antique weapons, or starting pistols. This cannot be reasonablydenied. The existence of a legal firearms market means that criminals, children, and mentally illpeople will find it easier to find firearms. Accidental shootings, as well as murders and suicideswith firearms, are much, much rarer in the United Kingdom, for example, than in America simplybecause there are far fewer firearms in the UK. Simple probability and logic shows that therewill be a greater number of accidents and deaths involving firearms if more firearms exist insociety. It would seem that the statist interpretation has considerable merit and forms the basis forstrict laws to control and limit the possession and use of firearms. The UK has some of thestrictest gun control laws in the world, so let’s take a look at this country as an example. The right to bear arms in England was written into common law in 1181, known as the Assizeof Arms, as decreed by King Henry II. Gun control in Britain began in the sixteenth century, afterthe English Civil War, when Parliament announced Parliamentary Sovereignty to write laws andabolished all prior pronouncements by monarchs. The 1689 Bill of Rights gave only Protestantsa conditional right to bear arms: “That the subjects which are Protestants may have Arms fortheir defense suitable to their conditions, and as allowed by law.” This was largely consideredto be a natural right to resist persecution and for self-defense, but left Catholics and Jews largelydefenseless. This state of affairs continued until the 1824 Vagrancy Act allowed constables and watchmen(the police were not formed until 1829) to arrest any armed person if they were deemed to beintent on committing a “felonious act,” and the 1870 Gun License Act required the purchase of alicense (for 12 schillings from a post office) to bear a firearm outside one’s own house. It was only in 1903, after the Pistols Act had been passed, that it became a legal requirementto obtain a license before purchasing a pistol. Licenses could be bought from the post office andit was an offense to sell pistols to children and drunkards. After the 1920 Firearms Act, a certificate was required to possess any firearm in the home.The local chief constable decided whether the applicant had given “good reasons” forpossessing a firearm, and applications were denied if the chief constable decided that theapplicant was “of unsound mind,” “intemperate,” or “unfit to be trusted with firearms.”Arguably, this law was passed largely to disarm the working class after the First World War. In 1933, the Firearms and Imitation Firearms (Criminal Use) Bill increased the punishmentsfor the use or a firearm (or imitation) in the commission of a crime. It imposed a mandatorysentence of 14 years for anyone using a firearm (or imitation) to resist arrest. (Remember thatpolice officers in the UK are not issued with firearms as standard equipment.)

The 1937 Firearms Act give chief constables increased discretionary powers when grantingcertificates. Henceforth, under the British law, self-defense was no longer considered to be a“good reason” to possess a firearm. This law also regulated arms dealers and strictly controlledthe sale and possession of machine guns. English, Scottish, and Welsh legislation were reconciled under the 1968 Firearms Act, whichbecame the basis for British firearms regulation for twenty years. Since 1968, British subjectshave been largely restricted to double-barreled shotguns, requiring a firearms certificate andpolice approval that the applicant has “good reason” to own a shotgun and can be trusted to useit “without danger to the public safety or peace.” Anyone who had served more than three yearsin prison or had shown mental health issues was denied a certificate. Firearms certificates forother types of firearms had to be applied for separately, each application stating type andpurpose, such as for sport or work related. The procedure for vetting applications requiredpositive verification of identity; two referees of “veritable good character” (who could beinterviewed and investigated) who knew the applicant for at least two years; a good report froma family doctor; a police inspection of premises and storage facilities where the firearm was tobe kept; a national police background check; and, the applicant was interviewed by a HomeOffice Firearms Inquiry Officer. Penalties for the illegal possession of a firearm were set atbetween five and ten years’ imprisonment and an unlimited fine. It was after the 1987 Hungerford massacre, when Michael Ryan went on a shooting spree inthe town of Hungerford and killed 16 people, including his mother, and wounded 15 others,before shooting himself, that the Conservative Party led government effectively banned semi-automatic rifles, pump-action shotguns, and explosive ammunition in the 1988 Firearms Act.Stricter controls on the issuance of shotgun licenses were imposed, but semi-automatic pistolsand .22 rifles were unaffected. This remained the legal basis for gun control in the UK until the 1997 Firearms Act. This lawwas the Labour Party led government’s response to the 1996 Dunblane massacre, when ThomasHamilton, a licensed gun owner and former scout master (dismissed from the Scout Associationfive years earlier) shot dead 16 children and their teacher, Gwyneth Mayor, in the gymnasium ofDunblane Primary School. This law banned all handguns for private ownership (with theexception of muzzle-loading black powered guns and pistols made before 1917 or of historicalinterest). Even the Olympic shooting team is not exempt from this law and has to train outside ofthe UK. Now the UK firearms laws are among the strictest in the world. But, have they really reducedthe level of firearms based crime and murders in Great Britain and Northern Ireland? Accordingto the statist interpretation, we should expect to see a dramatic decrease in firearms based crimeand murders. However, in 2001, four years after the passing of the 1997 Firearms Act, theBritish Broadcasting Corporation (BBC) announced in a news report that there has been a 40percent increase in handgun crime![7] At first glance, it would seem that the evidencecontradicts the statist interpretation quite dramatically. But, the BBC news report is misleading.

What the BBC news report failed to take into account was that the increase in handgun crimewas largely due to a change in how the police categorized “handgun crime” in the UK after the1997 Firearms Act. This act included the use of imitation guns and starting pistols during a crimeunder the category “handgun crime.” Furthermore, since the 2006 Violent Crimes Reduction Act,crimes involving the use of air pistols are also included under the category “handgun crime,” andthis has resulted in a further increase in police reporting of “handgun crimes.” In fact, accordingto an Official Home Office Study published in 2007, although the number of “handgun crimes”had increased due to changes in police reporting rules, and there had been a slight increase inorganized gang related crime using firearms, the number of homicides committed with firearmshad remained constant since 1997, and there hadn’t been any significant change in the number offirearm related deaths, accidents, or serious injuries.[8] If we look at more current datapublished by the Home Office, we can see that the number of recorded crimes involving the useof shotguns has remained relatively constant between 2000 and 2011, at just over 600 per yearin England and Wales, with a 25% decrease in the use of handguns between those years, from4010 in 2000 before rising to 5874 in 2001 and slowly decreasing each year to 3105 in 2011,and a 50% increase in the use of rifles from 36 in 2000 to 74 in 2011.[9] It would seem that thelaw did not make any dramatic difference. There has been the predictable gradual but slightreduction in firearm related crimes and deaths as firearms became rarer in society. The lack ofany dramatic difference should be unsurprising, once we take into account that prior to 1996there were less than 60 thousand firearms certificates (permits) issued for the possession of ahandgun (which is less than 0.1% of the population). Most British people did not even noticethat handguns had been banned! Criminal gangs continue to use illegally acquired firearms, asthey did before the law was passed.[10] Of course with over 90 million gun owners in the USA we should expect a large difference inthe number of homicides committed with firearms in the USA to the number committed in theUK. Again, this is simple logic. All other things being equal, there is a high level of crime andmurders using firearms to be expected if there is a large number of firearms among the generalpopulation. If we compare the UK with the USA in 2010, there were 14 homicides committed inEngland and Wales using firearms, whereas in the USA there were 9,369 homicides usingfirearms (67.5% of all homicides).[11] 41.4% of robberies and 20.6% of assaults involved theuse of a firearm by the perpetrator. No one could reasonably deny that there is a dramaticdifference between the two countries if we compare official statistics of crimes involvingfirearms. However, the reported crime rate in the UK and USA is approximately the same (atabout 800 per 10,000 people), with the majority of crimes being against property. It is not thecase that Americans are more prone to commit violent crimes and given the high level of firearmownership in the US it is reasonable to conclude that most gun owners keep and use theirfirearms safely and responsibly. It is simply the case that the existence of more firearmsincreases the likelihood of violent crimes using firearms. The legal firearms market makes iteasier for violent people to obtain firearms, legally or illegally. Again, this is a predictableresult. Supporters of the Second Amendment need to be honest about it. However, crime statistics about murders with firearms only tell us part of the story. If we

look at violent crimes that do not involve the use of firearms, a rather interesting twist develops.Comparing the British Home Office and the FBI’s statistics, we can see that in 2010 there were133% more reported rapes and 125% more violent assaults in the UK than in the USA. Giventhat the UK has a population approximately one-fifth of the size of that of the United States, thismeans that a person is between 6 and 7 times more likely to be violently assaulted and a womanis between 6 and 7 times more likely to be raped in the UK than in the USA. How are we toexplain this startling result? Are British people more prone to rape or violent assault thanAmericans? This seems unlikely, especially given that Britain and America have about the sameper capita crime rate, so how can we explain it? Is it more likely that rape and violent assaultsare reported in the UK than the USA? Again, this seems unlikely and there is no evidence tosupport such a claim, but we can explain this difference if we take civilian firearm ownershipinto account. In America, every year, there are numerous cases in which armed citizens have preventedcriminals or mentally ill people from committing acts of violence, without a shot beingfired.[12] Each year, there are millions of incidents of citizens using firearms successfully forself-defense. In most cases, the firearms are not fired and no one is injured. These cases are tooboring to make the national media; if reported in the press at all, they only make local news. Themedia are not interested in reporting that an armed assailant was successfully disarmed andhanded over to the police, without any shots being fired or anyone being injured. It is simply thecase that the legal firearm possession has prevented violent crimes such as rapes and assaults, aswell as successfully used to defend property. Contrary to the statist interpretation, armed citizensdo successfully prevent crimes and stop armed criminals. Armed women have been able toprotect themselves and deter would-be rapists or assailants. Firearms are equalizers that allowpeople to defend themselves against much stronger and more violent people. Disabled andelderly people are also better able to defend themselves and their properties against aggressiveassailants. There is a strong argument that law-abiding citizens can possess and bear firearmsresponsibly and effectively use them for self-defense. It is arguable that, in the UK, theHungerford massacre would have involved fewer deaths had the local citizens had firearms forself-defense. It is arguable that the Dunblane and Sandy Hook school massacres could have beenprevented if these schools had armed security. There is a reason why these madmen choose softtargets, like schools and other “gun free zones,” rather than police stations, gun shows, orNational Rifle Association meetings. Furthermore, since the relaxation of laws and restrictions on conceal and carry since 2001,according to the FBI, the rates of rapes and violent assaults have dropped by between 5% and6%, and this drop is apparent in states that allow conceal and carry and not apparent in statesthat do not. It seems that relaxed conceal and carry laws do protect law-abiding citizens. Womenwould be well-advised to take advantage of them. Arguably, given that criminals or prospectivecriminals do not know who is concealing and carrying a handgun, it also can act as a deterrent. Despite the disproportionate level of news coverage, even in the USA instances of legallylicensed gunmen or vigilantes going on shooting sprees are extremely rare. Violent crimes with

firearms involving otherwise law-abiding citizens are also rare. Police and FBI reportsconsistently show that the vast majority of shootings and crimes involving firearms arecommitted by people using illegally obtained firearms. The UK’s example shows that strict guncontrols have not significantly lowered the levels of homicides and serious injuries fromfirearms among criminal gangs. The number remains small, but fairly constant. This is largelydue to the fact that organized criminals obtain their firearms illegally, including militaryhardware, and will do so regardless of the law. Predictably, the FBI’s statistics shows that theuse of firearms by organized gangs of criminals is not significantly reduced by the strictness ofstate firearm laws. Banning the legal possession and use of any weapon does not negativelyimpact on the use of those weapons by organized criminals to commit crimes. In fact, if anything,it extends the black market to sell the newly banned weapons and affords profitableopportunities to smugglers and corrupt officials. There is considerable truth to the slogan “Ifguns are made illegal, only the criminals will have guns.” As the UK’s example shows, evenwhen there is a nationwide ban on all firearms, organized criminals are able to smuggle theminto the country. Also, it can be reasonably surmised that, even if there was a worldwide ban onall firearms, criminal organizations would be able to make and distribute their own guns.Furthermore, even though firearms clearly make it easier to kill people, intentionally orotherwise, people have used all sorts of objects as weapons to kill other people. People intenton murder will choose a different kind of weapon if a firearm is not available, even if firearmsmake it considerably easier to kill people. There clearly are good arguments on both sides of the debate regarding the SecondAmendment. Let’s take a closer look at some of the arguments in support of the SecondAmendment. Supporters of the Second Amendment claim that all law abiding Americans should have theright to buy and possess firearms for self-defense, sport, hunting, or any other lawful purpose.They often appeal to the cultural tradition of gun ownership in America as being part ofAmerican history and identity, handed down from generation to generation. They consider thistradition to be enshrined in the Bill of Rights and claim that it is an important part of the libertyof American citizens, and they argue that the individual citizen’s right to self-defense was takenfor granted by the Founding Fathers. Indeed, Thomas Paine, Thomas Jefferson, and GeorgeMason all argued in favor of the individual citizen’s right to bear arms as being essential forliberty and self-defense. Of course, it does not make something good just because it is traditional. After all, at onetime, slavery was considered to be a tradition in the United States. We need to provide reasonsand argument to defend any tradition. For the reasons I have given above, advocates of theSecond Amendment can criticize the statist interpretation that protection of the citizenry is bestleft to the police and military. Not only can they show that citizens are capable of defendingthemselves, but they can also argue that relying on the police to defend the citizens againstviolent criminals is naïve. There are too many examples of cases when the police were notavailable; they did not arrive on time; they refused to help (say in instances of domestic abuse or

violence); or there was a communication breakdown and the police were not properly informedof the seriousness of the situation. Advocates of the Second Amendment argue that strict guncontrol laws do not reduce gun related crime committed by organized criminals, but, instead,disarms citizens of the ability to defend themselves against armed criminals. There is a strongargument that people are best placed to defend themselves. Henceforth, this position shall betermed as the individualistic interpretation of the Second Amendment. Clearly both statist and individualistic interpretations need to be considered. In my opinion,the Supreme Court of the United States (SCOTUS) considered both interpretations and tried tostrike a middle path in the case of the District of Columbia v. Heller, 2008.[13] Adopting theindividualistic interpretation, SCOTUS took the “individual right to self-defense” as the basicmeaning of the Second Amendment, and by a 5-4 majority ruled that the Washington D.C. lawbanning handguns and requiring trigger locks on all firearms in the home was unconstitutionalbecause it unreasonably infringed on the individual right to self-defense. However, SCOTUSalso adopted the statist interpretation by holding that the individual right to self-defense is notabsolute, in the sense that it is not a right to keep and bear any weapon in any manner and for anypurpose. SCOTUS ruled that it is reasonable for the government—either at a federal or statelevel—to limit the kinds of weapons citizens are permitted. This ruling is consistent with themajority decision in the 1939 SCOTUS case United States v Miller, which upheld the 1934National Firearms Act (banning civilians from possessing automatic weapons and sawn-offshotguns).[14] In the DC v Heller case SCOTUS also ruled that it was reasonable for thegovernment to regulate the carrying of concealed weapons; prohibit felons and mentally illpeople from possessing firearms; prohibit the carrying of firearms in schools and governmentbuildings; regulate the sale of firearms; and, prohibit the possession and carrying of “dangerousand unusual weapons.” Bringing both interpretations of the Second Amendment together allows us to argue thatcitizens have “the right to keep and bear arms” for self-defense, but the government has theauthority and duty to regulate how firearms are used, transported, sold, and stored, and whichcategories of people can legitimately be prevented from owning firearms (e.g. felons, children,and people suffering from mental health problems). This “compromise position” allows theindividual right to self-defense to be respected for law-abiding citizens while admitting somedegree of gun control. Clearly, some kind of background check is required to ensure that criminals, minors, andmentally ill people are unable to purchase firearms, either in gun shops or online, and it is boththe duty and responsibility of the government (at federal and state levels) as well as licensed gundealers to make sure that these background checks are performed correctly, efficiently, and in atimely manner (so as not to unduly hinder a law abiding citizen’s right to bear arms for self-defense). Background checks should be universal and the federal government should imposeminimum requirements for firearm ownership (i.e. 18 years or older, no outstanding warrants forarrest, and no court imposed restraints due to mental health concerns) and state governments canimpose additional requirements. Loopholes (such as private sales, gun shows, and online sales)

should be closed. Existing laws should be strictly enforced and there should be severe penaltiesfor people involved in acts of illegal arms trafficking. All of these measures are reasonable andthere is no good reason for any law-abiding citizen to object to them. However, we need to say a few cautionary remarks regarding background checks. Obviouslypeople should not be prevented from passing on firearms that are family heirlooms. Privatetransfers of ownership should be respected, providing the recipient can legally own a firearm.Also some people have a legitimate concern about how universal background checks could leadto the creation of a national registry which could be used by a future government to seizefirearms. This concern should be addressed. It is also the case that governments have shownthemselves to be not very good at protecting the data they collect. If criminal organizationsgained access to a national registry, they could use it to steal firearms. Likewise, foreignterrorists or covert agents could use such information to gain weapons. It is possible that anational registry could be a resource used by foreign governments to create a Fifth Columnwithin America. Any system of universal background checks should not involve the creation of anational registry. We also need to reflect on how “mental illness” has been used in the past as apolitical tool by governments to oppress political dissenters and opponents, as well as a tool tocontrol women, minorities, religious sects, and people who did not “fit in” with the norms ofsociety, as decreed by a powerful minority or politicians. Any system of universal backgroundchecks cannot allow “mental illness” to be used as a political tool by which people can bedenied their constitutional rights. Before any person can be denied their right to bear arms on thegrounds of “mental illness,” this prohibition needs to be determined by a court as the result ofviolent crimes that person actually committed. People should not be denied their rights on thegrounds of suspicion or prejudice on the part of government agents or police. Due process mustbe respected and the person should have the right of appeal. The fact that someone has soughthelp and treatment from mental health professionals should also not be used against them toremove their rights if they have not committed any violent crimes. To do so is not only aviolation of due process and their constitutional rights, but it is likely to result in people notseeking help and more mentally ill people slipping under the radar. Furthermore, bringing both the individualistic and statist interpretations together implies thatfirearm owning citizens also should have a legal responsibility to prevent other people(especially their children) from gaining access to their firearms, which means that firearmsshould be safely and properly transported and stored, and gun owners should be heldaccountable for the irresponsible care and use of firearms. Gun control is the responsibility andduty of both the government and the citizenry who chose to exercise their right to bear arms forthe purpose of self-defense. How the government exercises its responsibilities and duties shouldbe decided by the citizenry through their representatives, petitioning, and the ballot box—ifgovernment truly has the consent of the governed—and each gun owning citizen has a duty andresponsibility to his or her fellow citizens to obey the law. In my view, irresponsible gunowners should at least lose their right to bear arms and possibly face severe penalties (includingthe possibility of serving long prison sentences) providing that due process and theirconstitutional rights are respected. While people who have outstanding warrants for their arrest

and who are on parole or probation should not be able to possess and obtain firearms, there isno justification for continuing to deny the rights of people who have completed their prisonsentences and terms of probation or parole. If we recognize and accept this shared responsibility and duty, we have already started to gobeyond the “compromise position” set down by SCOTUS, as well as beyond either theindividualistic and statist interpretations taken separately. Recognizing this affords us theopportunity to promote a positive and substantive democratic interpretation of the SecondAmendment that moves beyond both the statist and individualistic interpretations. It movesbeyond limiting the debate to whether citizens should have the unrestricted right to protectthemselves or whether this is the exclusive responsibility of agents of the government. It movesus toward a fundamental debate about the balance of power between the citizenry (the people)and the government (the state). This requires the courage to follow through a line of reasoning tosee where it leads us, and, as I said at the very outset, such debates are essential for thecontinuance of the American experiment in self-governance. The next step in this line ofreasoning requires that we take a good look at the militia clause of the Second Amendment inorder to develop a positive and substantive democratic interpretation of its meaning andpurpose. Both the individualistic and statist interpretations tend to consider the militia clause— “Awell regulated militia being necessary to the security of a free State,”—as being an antiquatedand subordinate clause of the Second Amendment, which acts as a preamble that does not limitthe scope of the main clause—“the right of the people to keep and bear arms shall not beinfringed.”—even though the government can regulate and limit this right in relation to certaincategories of people and which arms they can bear. The “compromise position” has modified thesecond clause of the Second Amendment to “the right of some people to keep and bear somearms shall not be infringed unreasonably.” Should this “compromise position” be consideredthe final word on the Second Amendment? Should the debates only be limited to the details ofwhat “infringed unreasonably” means?—Limited to debates about whether assault rifles shouldbe banned and whether magazine capacity should be limited? Or do we need to take the militiaclause into account? What sense can we make of the militia clause? Statist opponents of the Second Amendment have referred to the militia clause as evidence ofthe obsolescence of the Second Amendment. They argue that it should be repealed. According toadvocates of an unrestricted individualistic interpretation, tightening the details of the“compromise solution” is taken to be the means by which “gun grabbers” will erode the SecondAmendment and individual liberty. Far from being the final word, I shall argue that bothinterpretations and the “compromise position” are reactionary and shallow interpretations thatfail to encompass the purpose of the Second Amendment as protecting the democratic means bywhich the people can preserve their freedom from tyrannical government through collectiveaction. The Framers already took the right to self-defense and hunting as givens. There wouldhave not been any need to specify these rights in the Constitution. They specified the SecondAmendment as the basis by which the people can defend themselves against tyrannical

government, either foreign or domestic. The Second Amendment is just as important a check andbalance on the power of government as is the First Amendment protection of freedom ofassociation, political speech, and the right to petition government. To those opponents of theSecond Amendment who argue that the Framers had swords and muskets in mind when they putink to parchment, I would ask: Given that the Framers could not have imagined cinematicphotography, computers, or the Internet, does this mean that the First Amendment does not applyto cinema or opinions expressed on web pages? Does this mean that the Fourth Amendment doesnot apply to your computer and emails? To the advocates of the unrestricted individualisticinterpretation, I would ask: if the Framers did not intend government to regulate the right to beararms, why did they give Congress the power to regulate and organize militias in theConstitution? Let’s ask the following question: what would it mean if the militia clause was taken to be themain clause of the Second Amendment rather than a preamble or subordinate clause? What doesthe militia clause mean in the context of the Constitution? Let’s take a look at how the wordmilitia is used in the Constitution. As well as appearing in the Second Amendment, the wordappears in three other parts of the Constitution: Article I, Section 8: This section empowers Congress “To raise and support armies, but no appropriation of money to that use shall be for a longerterm than two years;” “To provide for calling forth the Militia to execute the laws of the Union, suppress insurrectionsand repel invasions;” “To provide for organizing, arming, and disciplining, the Militia, and for governing such part ofthem as many be employed in the service of the United States, reserving to the Statesrespectively, the appointment of officers, and the authority of training the Militia according to thediscipline prescribed by Congress.” Article II, Section 2: This declares that “The President shall be Commander in Chief of the Army and Navy of the United States, and ofthe Militia of the several States, when called into the actual service of the United States;” The Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on apresentment or indictment of a grand jury, except in cases arising in land or naval forces, or inthe militia, when in actual service in time of war or public danger;” The Constitution couldn’t be clearer. It explicitly empowers Congress and the President

respectfully to organize, discipline, and command the militias of the several states, when calledinto service during invasion or insurrection. This clearly gives two branches of governmentresponsibility for organizing the militia as military units during wars or times of public danger. Itis also quite clear that during peacetime the militias should be under the command of theirrespective state legislature and governor, giving state government the responsibility fororganizing and training the state militia. The Constitution gives government at both federal andstate levels the authority to regulate the militia and the right to bear arms. Who are the militia? Congress has answered this question for us. According to the 1903Militia Act, the militia consists of the state based and organized National Guard of the variousstates (distinct from the National Guard of the United States, which is a federally controlledreserve military force) and the Naval Militia. The US Code Title 10, Sec. 311 – 313, defines themilitia of the United States as consisting of all able-bodied males at least 17 years old and under45 years old who are or intend to become citizens of the United States, and all female citizens ofthe United States who are members of the National Guard. The militia is the collective able-bodied male adult population that is eligible for the draft, and the female population that hasalready volunteered to serve in the National Guard. Is this definition acceptable? A critique of this definition of the militia already provides us with two points of departurefrom which we can develop a positive and substantive democratic understanding of the SecondAmendment and its purpose. First, any consistent democratic position must reject any chauvinistic inequality between menand women. The definition of militia must apply equally to men and women. In other words, itmust apply to the whole adult population regardless of gender. By defining the militia as thewhole adult population regardless of gender, this would mean that we can bring both clauses ofthe Second Amendment together: the militia and the people when armed are one and the same. Second, any consistent democratic position must reject the legitimacy of the draft. Thiscoercive imposition by the government upon the people has no basis in the Constitution andshould be opposed as an illegal act of tyranny. But, wait. Let’s not get ahead of ourselves. Whyis the draft unconstitutional? The Second Amendment defines a right, not an obligation to bear arms. The draft should beprohibited by the Thirteenth Amendment as a form of “involuntary service.” “Neither slavery nor involuntary service, except as a punishment for a crime whereof the partyshall have been duly convicted, shall exist within the United States, or any other place subject totheir jurisdiction.” The Fourteen Amendment holds that all American citizens should be treated with due processand receive equal protection under the law, regardless of race (or gender, I would add), andthere is no legitimate basis for any claim that the Thirteenth Amendment only applied to black

slaves. If it did at the time of writing, it was subsequently qualified and amended by theFourteenth Amendment. Participation in the militia or the armed forces must be voluntary andany adult who chooses not to bear arms should not be compelled to participate. However, in 1918, SCOTUS ruled that American citizens had a “supreme and noble duty” tocontribute “to the defense of the rights and honor of the nation, as the result of a war declared bythe great representative body of the people.”[15] Yet the Constitution does not mention any such“supreme and noble duty.” This duty is an invention of SCOTUS. This ruling wasunconstitutional and, arguably, was yet another example of judicial activism and legislating fromthe bench—confirming that SCOTUS is a “despotic branch of government,” as Thomas Jeffersontermed it in 1804.[16] Congress failed in its duty to abide by the Constitution and either impeachSCOTUS or overrule it for exceeding its authority. This ruling was a coup d’etat over thesovereignty of the people and the legitimacy of the government, which should remain constrainedby the consent of the governed in accordance with the Constitution. Of course, Congress’sinaction should be unsurprising, given that it had already unconstitutionally granted thegovernment the authority to draft citizens into the armed forces and “involuntary servitude,”whenever it deemed it necessary, and to suppress the First Amendment rights of citizens underthe 1917 Espionage Act and the 1918 Sedition Act. Nor should we be surprised by the lack ofany veto or objection to these laws from the Woodrow Wilson Administration. It is a matter of historical fact that Wilson was intolerant of dissenters and used the 1917Espionage Act and the 1918 Sedition Act to silence and imprison anti-war protestors,anarchists, socialists, suffragettes, and pacifists.[17] The Sedition Act made it a crime to sayanything “disloyal, profane, or abusive” about the government, the flag, and the armed forces.Despite all of Wilson’s pretensions to be progressive and democratic, the WilsonAdministration, with the support of Congress, SCOTUS, and the press, took America down thepath towards tyrannical government, militarism, and fascism.[18] Eugene Debs (union leaderand Socialist Party presidential candidate in 1904, 1908, and 1912) was sentenced to ten yearsin prison for “obstructing recruiting” by making an anti-war speech.[19] When suffragette leaderAlice Paul went on hunger strike, after she had organized a picket of the White House and thewomen were subsequently arrested, imprisoned, and beaten, Wilson tried (and failed) to get herincarcerated indefinitely in a lunatic asylum.[20] In 1917, the anarchists Emma Goldman andAlexander Berkman were arrested, sentenced to two years, and then deported to Russia for“conspiring to induce persons not to register” for the draft.[21] The poet E.E. Cummings servedas an ambulance driver during the war and was held in a military detention camp for over threeyears for saying that he felt no hatred for the Germans. The Sedition Act was repealed byCongress in 1921. Furthermore, in 1948, Congress exceeded even the bounds of this unconstitutional SCOTUSruling, which only legitimated the draft when Congress had declared war. Congress has notdeclared war since 1941. Yet Congress gave the Executive the unconstitutional authority to draftAmerican citizens into the Korean and Vietnam “police actions.” The draft during the SecondWorld War was ended in 1946, and the Selective Training and Service Act (passed in 1940

prior to declaring war!) was allowed to expire in 1947. However, in 1948, Congress passed theSelective Service Act, which made all males between the ages of 19 to 26 eligible to beingdrafted for 21 months, followed by a commitment to serve either 12 months of active duty or 36months in the reserves. In 1951, despite not having formally declared war, Congress passed theUniversal Military Training and Service Act to raise an army for the “police action” in Korea.This lowered the draft age to 18 years and increased active duty from 21 to 24 months, butgranted exemptions to students. This illegitimate government action was further expanded by President Johnson’s signing ofan executive order (Executive Order 11241, August 26 th, 1965) that rescinded the exemption formarried men without children, as granted by President Kennedy (Executive Order 11119,September 10th, 1963). These executive orders bypassed Congress altogether. They wererevoked by President Reagan (Executive Order 12553, February 25th, 1986). In 1967, Congress passed the Military Selective Service Act, which expanded the ages ofdraft eligibility to the ages of 18 to 35. Student exemptions were limited to the completion of afour year degree or their 24th birthday, whichever came first. This was used to draft Americancitizens to fight in the undeclared war against Vietnam. In 1971, this act was amended to baseselection on a lottery, and all eligible male citizens were compelled to register for the lottery.Student deferments were ended (except for Divinity students!) and conscientious objectors couldelect for non-combative military service or alternate community service. Unconstitutionally andperversely, this compulsory service did not equate to “involuntary service” in the minds of thecongressmen who voted for this act, nor did it do so in the mind of President Nixon, who signedit into law. On January 27th, 1973, Secretary of Defense Melvin Laird announced the end of the draft andthe creation of an all-volunteer armed forces. The registration requirements were ended byPresident Ford on March 29th, 1973 (Proclamation 4360, Terminating Registration ProceduresUnder Military Selective Service Act). While the Constitution clearly empowers Congress to raise an army and navy, and to organizethe militia, there is no constitutional authority to draft American citizens into the armed forces orthe militia. The Second Amendment refers to “the security of a free State,” which means that itrefers to right to keep and bears arms as being a condition for the defense of one’s state, as “afree State.” At most, we could argue that citizens who choose to exercise their right to keep andbear arms become obliged by the Second Amendment to submit to the authority of state andfederal government to defend their state in times of war, invasion, or insurrection. Byidentifying the militia as the people when armed, it would seem constitutional to go this far, butonly this far. In which case, it follows that every armed adult citizen has no obligationwhatsoever to submit to a draft to fight in undeclared wars or any action that does not directlyrequire the defense of their state against insurrection, invasion, or tyrannical government. The Second Amendment should be understood as a right, not an obligation to keep and bear

arms. This means that the draft must be considered by the people as being a strictlyunconstitutional and undemocratic act of tyrannical government. It is a form of slavery. Hence, in“a free State,” participation in the militia must be voluntary in virtue of choosing to exercise theright to bear arms, and the government must respect pacifism, personal freedom, and variousreligious beliefs that prohibit violence of any kind, even in self-defense. We can argue withcertainty that the Constitution does not compel those people who had not chosen to keep and beararms to serve in the militia and armed forces. Citizens have no “supreme and noble duty,”irrespective of any opinions that Supreme Court judges may have, unless they choose to burdenthemselves with such a duty. Arguably, if citizens have any “supreme and noble duty,” it is theduty of the people—acting as the militia, conscientious objectors, or protestors—to rise up andoppose any government that attempts to impose the draft or any other kind of “involuntaryservice” (i.e. slavery), or is attempting a coup d’etat over their sovereignty and constitutionallylimited government. The people have a right to secure their own freedom. It was for this reason that Thomas Jefferson wrote in 1776 that: “No free man shall ever bedebarred the use of arms.”[22] According to Jefferson, the possibility of freedom is dependentupon the ability of the people to thwart those who would enslave them. It is a condition of beinga free man that one has the means to defend one’s freedom from tyrants and invaders. As GeorgeMason wrote in 1788, disarming the people is the best means to enslave them, and, in “a freeState,” the militia and the people are one and the same.[23] The term militia refers, in thefullest reading of the Second Amendment, to the right of the people to defend themselves—as thepeople—and this right is necessary for the existence of “a free State.” It was for this reason thatPatrick Henry declared: “The militia is our ultimate safety. We can have no security without it.The great object is that every man be armed.”[24] If one of the purposes of the SecondAmendment is for the people to maintain the means to defend themselves against tyrannicalgovernment, citizens who choose to bear arms and partake in the militia are not only obliged toobey their government if it acts in accordance with the Constitution and with the consent of thegoverned, but they have a duty to resist it if it does not. However, rather than imply any duty or obligation whatsoever, the Second Amendment refersto the right to keep and bear arms as being a condition for the continued liberty of the people, butby choosing to exercise this right, the people become the militia “necessary to the security of afree State.” Read in this way, the Second Amendment is a statement of fact about what isrequired for the defense of the people. This right should not be violated if the means to maintain“a free State” are to be preserved. In this respect, “the militia” and “the people when armed” arenot only one and the same, but they are collective terms. The people when armed—actingcollectively as the militia—are inherently defensive of their own states, communities, andneighborhoods against aggressors. Forming themselves into the militia is the means by which thepeople defend themselves—of themselves, by themselves, and for themselves. This is aninherently democratic condition for liberty of the people within their own states that has nothingto do with being compelled by the draft to fight in the US Armed Forces against people inforeign countries for natural resources, reasons of geopolitics, or on ideological grounds.

We can clearly see that this democratic interpretation opposes both the statist andindividualistic interpretations. Far from being an obsolete amendment, the Second Amendmentbecomes conditional for the preservation of all other rights from tyrannical government. Itspecifies the means by which the people when armed—acting as the militia—can protectthemselves as a free people. Giving the government a monopoly over the means to commitviolence, surrenders the means by which the people can defend themselves as a free peopleagainst tyranny or defend their state against a coup d’etat. It places the people at the mercy of thegovernment. The statist downplaying of the militia clause has been part of the process by which thebalance of power has shifted from the people to the government. The result of the statistinterpretation is that it delegates responsibility for the protection of liberty from the citizenry tothe agents of the government, such as law enforcement officers and the military. The protectionof the people is no longer the responsibility of the people, but is the responsibility of theirrepresentatives and the agents of the government, supposedly acting on behalf of the people.These agents of the government, somehow, are supposed to be more moral and capable of actingwith restraint than civilians. Not only is this naïve, but it removes an essential check and balancebetween the people and government. How can agents of the government be relied upon to protectthe people from the government itself? Should a government undergo a coup d’etat or becometyrannical, the right to keep and bear arms provides the people with the means to rise up andoverthrow that government and restore constitutionally limited government, which governs withthe consent of the governed. The statist interpretation is anti-democratic because it assumes that agents of the governmentare more responsible than any other citizen and thereby can be trusted with weapons that cannotbe trusted to the citizenry in general. The statist interpretation denies fundamental and universalhuman rights to self-defense and self-determination. It threatens to revert the people into beingsubjects of the state, rather than citizens of a republic. Contrary to the statist interpretation, thedemocratic interpretation demands that agents of the government must be considered as part ofthe people and should not possess any rights or privileges that the people in general do notpossess. The result of the individualist interpretation is that the right to bear arms is treated as anindividual right to bear arms for self-defense, sport, and any other lawful purpose, rather than aright of the people when armed—acting collectively as a militia—to protect the freedom of thepeople from invaders, insurrection, or tyrannical government. It is every man and woman forthemselves. This leaves the people weakened and disorganized. Hence, we need to note that theword “individual” is not used in the Second Amendment. It does not discuss the right of theindividual citizen to keep and bear arms for personal self-defense, hunting, sport, or just becausethey happen to like guns. As I have already said, in the eighteenth century, keeping weapons forpersonal self-defense and hunting was taken for granted, just as it had been in England and manyother countries for centuries. The Second Amendment was written as a response to the War ofIndependence and the founding of a new nation. It should be read as good advice. It is the

statement of a condition for preserving liberty, not a liberty in itself. The right to keep and beararms is a means to this end, not an end in itself. The individualist interpretation is anti-democratic because assumes that self-defense is onlyan individual right, rather than a collective responsibility of the people, and leaves the peoplevulnerable and disorganized against the possibility of tyrannical government. It is short sightedto treat the militia clause as if it is an antiquated preamble that should not be taken as limitingindividual citizens’ rights to possess firearms. When we understand the militia clause in terms ofthe democratic interpretation, we can understand how the responsibility for the defense of “afree State” is a collective responsibility of the people, acting as an organized militia. What the Second Amendment says is that the right to bear arms must belong to “the people,”which is a collective term, and hence the democratic interpretation is not a defense of “everyonefor themselves” anarchy and the right to buy guns and shoot animals in the woods. In ademocracy, the people and “a free State” are one and the same, with the militia being the peoplecollectively organized to be capable of defending themselves from invaders, insurrection, andtyrannical government, and thereby preserving themselves as the collective sovereigns of “a freeState.” This is a fundamental condition for self-governance by the people, who collectivelycome to the aid of their government in times of war or public danger, but are not slavishlyobedient to a militaristic police-state. The Second Amendment should be understood asinforming us of the means by which the people can protect all their other rights as a free peopleand support a government that governs with the consent of the governed. The Constitution and the Second Amendment need to be read in the context of theEnlightenment tradition that inspired the Founders when writing and signing the Declaration ofIndependence and the Framers when writing and ratifying the Constitution. The rights to life,liberty, and the pursuit of happiness were not taken to be exclusively American rights. Theywere taken to be natural rights, bestowed by “Nature’s God,” to ALL human beings. Otherwisethere would be no rights at all, only privileges and powers. It was on this basis that the dictatesand impositions of the British monarchy were taken to be usurpations of fundamental humanrights and therefore illegitimate. Government by consent of the governed was taken to be a basiccondition for human freedom, wherein government constituted an agreement between humanbeings to respect and preserve the rights of each other, thereby protecting their own; it is notsome nationalistic form unique to the tastes and fancies of Americans. The Articles of theConstitution were written as a series of compromises by which human beings could have a formof government that was limited and balanced, in order to best preserve human rights and freedomfrom the caprice of despots. The Bill of Rights enumerates universal human rights, the rights ofthe people and persons; it does not list the privileges of Americans (the term “citizen” is onlyused in the Articles as a qualification for public office and is not used in any of the Amendmentsuntil the Eleventh Amendment). It is in this respect that the Constitution can be viewed aspresenting us with an ideal form of government for all human beings, but it is an ideal that grewout of the British understanding of Enlightenment tradition, as best expressed in the philosophyof John Locke, English common law, and the spirit of the Magna Carta. Both the rights to self-

defense and self-determination should be seen as fundamental and universal human rights, whichare enshrined in the Constitution, and not as particular and exclusive American privileges. Having just survived the War of Independence, the Founders and Framers were all too awareof the importance of the possessing the means to fight for the people’s freedom from tyrannicalgovernment and an invading army. As Jefferson wrote in the Declaration of Independence: “That whenever any Form of Government becomes destructive of these ends [the right to Life,Liberty, and the Pursuit of Happiness,] it is the Right of the People to alter it or abolish it, and toinstitute new Government, laying its foundations on such principles and organizing its powers insuch form, as to them shall seem most likely to effect their Safety and Happiness… when a longtrain of abuses and usurpations, pursuing invariably the same Object evinces a design to reducethem under absolute Despotism, it is their right, it is their duty, to throw off such Government,and to provide new Guards for their future security.”[25] If only words were required to secure liberty, then it would have been secured the moment JohnHancock signed the Declaration of Independence, on the 4th of July, 1776. But, alas, as thesubsequent seven years of war showed, sometimes securing liberty comes only through thesuccessful armed struggle of a people against the armed forces of a violent and determinedoppressor. The Bill of Rights shows that in the eighteenth century they were aware that limits ongovernmental power were necessary to preserve the liberty of the people, but that these rightscould only be preserved if the people had the means to preserve the security of “a free State”from tyrannical government by acting collectively as a “well-regulated militia.” Hence, evenduring his presidency in the early nineteenth century, Jefferson remained aware of theimportance of a well trained and organized militia to defend the people against invasion,insurrection, and tyrannical government. In his 1808 State of the Union speech, he said “For a people who are free, and who mean to remain so, a well organized and armed militia istheir best security. It is, therefore, incumbent on us, at every meeting to revise the conditions ofthe militia, and to ask ourselves if it is prepared to repel a powerful enemy at every point of ourterritories exposed to invasion.”[26] By seeing how the rights to self-defense and self-determination are related in the Declarationof Independence, we can see that the ideals that found the Articles and Bill of Rights do notimply a free-for-all state of anarchy. Laws, reason, and personal responsibility are importantfoundations for citizenship and respecting the rights of others. Obviously voluntary membershipin the militia and exercising the right to bear arms would not be available to criminals, violentlunatics, and children—thereby satisfying important conditions for public safety—but what kindsof limits should be placed on the regulations established by legitimate government? Forexample, should there be restrictions on the kinds of firearms that the people are allowed topossess? In order to answer this question, we need to examine a part of the militia clause that has not

yet been discussed. The militia clause talks of a “well-regulated militia.” What does this mean? The term “well-regulated” did not only mean “properly legislated.” Its meaning was notlimited to the establishment of the regulation of categories of people who are excluded from themilitia, such as criminals, mentally ill people, and children, or the establishment of categories ofweapons permitted for civilian use. According to the Oxford English Dictionary, in theeighteenth century, the word “regulated” meant “properly maintained and working” when used todescribe the condition of a watch or instrument. The term “well-regulated” meant “properlyarranged and organized” to achieve some function. Taking this meaning of “well-regulated” intoaccount, we can see that in the context of the Second Amendment, a “well-regulated militia”meant properly trained and disciplined, capable of fighting effectively. The militia clause makesit a condition for “the security of a free State” that the people are properly trained anddisciplined in how to keep and bear arms. It should be a condition of the right to keep and beararms that the possessor has learned how to properly use, care for, and store them. This is bringsthe connotations of skill and knowledge to the idea of gun control. In this respect, the right to keep and bear arms would require that people learn how to beararms responsibly and safely, demonstrating skill and knowledge, and proving that they arecapable of being a responsible member of a “well-regulated militia.” The demonstration ofproper training and competence should be a prerequisite for the right to bear arms, and theimposition of this prerequisite is not only consistent with the militia clause, but it a condition forthe meaning of the Second Amendment as a statement of the means by which the people canpreserve “the security of a free State.” Firearms are dangerous. Without proper training, gun users are a threat to bystanders, as wellas themselves. Proper training reduces the chances of accidents or innocent bystanders beingshot. It also reduces the chances that people will panic, over-react, and shoot someone theyperceive as a threat, when in fact that person was not. Violent madmen are often mentallydisorganized and incapable of discipline and would be exposed as such through the rigors ofproper training. It is therefore in the public interest that gun users are properly trained in how touse, carry, and store firearms as a condition for ownership. It is reasonable for society toprohibit untrained, ill disciplined and inexperienced people from owning and using dangerousweaponry. This is not much different than the restriction that a person must be able to pass a testto demonstrate that they know how to drive a car before they are given a license to do so. Now we can see how we can envision a system of universal background checks that wouldtake into account concerns about preventing criminals, homicidal lunatics, and children fromlegally obtaining firearms, alongside concerns about the perils of excesses of government andthe centralized accumulation of information about citizens. The federal government could imposea minimum set of standards required for firearm training, transportation, and storage on anyperson who wished to purchase and own any firearm, with higher standards required for moredangerous weapons, and the state governments would be able to impose their own standards inaddition, say for conceal and carry. In my opinion, the training requirements should be of the

same level and quality as those required of law enforcement and federal agents, and peopleshould not be permitted to purchase and possess firearms until they can demonstrate in a test to astate licensed firearms instructor that they have the skill, knowledge, and discipline to meet bothfederal and state requirements. Private organizations like the National Rifle Association couldact as important watchdogs over these standards and how they were being applied, but instead ofmerely opposing regulation, such organizations could make sure that regulation improved thelevel and quality of training and knowledge among gun owners, leading to higher levels of skilland public safety. They could help make sure that the militia was “well-regulated.” Under theirArticle IV power, state governments would issue firearm licenses within their own state, andthese would be recognized by all other states. There would not be any national firearm registryand the records of state licenses would be kept only by states. These records would beaccessible by federal agencies and law enforcement in other states, just as driving licenses aretoday, but federal agencies would not be permitted to keep records, except in cases of federallyissued licenses. Prior to obtaining a state license to purchase and possess a specific category orcategories of firearms and ammunition, the applicant would need to pass a course of training anda test, and the issuing state authority would check age and run a background check via a federaldatabase to determine whether the person was a wanted criminal, under probation or parole, ordenied ownership of firearms by a court order in any state. This would not comprise a nationalregistry of gun owners. It would be a national list of the people who were not permitted to ownfirearms. Additional background checks and waiting times could be imposed by the states, asthey do today. If these requirements were unduly restrictive, the people have the remedies of theSupreme Court and the ballot box. In this way, the states would take responsibility for theregulation of the militia; the federal government would enforce the requirement the states weremaintaining at least a minimum set of training, storage, and transportation standards, without theneed for a national registry. Licensed firearms dealers would verify the state license and run aninstant federal background check (to see if the person was not permitted a firearm) at the time ofpurchase of a weapon or ammunition, and private sales would require state approved transfersof ownership (again requiring license verification and an instant background check). No federalregistration of any firearm would be required, but states could impose their own registrationrequirements. This understanding of “well-regulated militia” fits in with the democratic interpretation andsatisfies concerns regarding background checks, governmental overreach, public safety, andpersonal responsibility. What of the question of the limits of the types of firearms available to the militia? It isridiculous to claim that the authors of the Second Amendment had in mind muskets and singleshot pistols and therefore these are the only kinds of firearms the people should have a right tobear. This would be akin to claiming that the First Amendment only covered spoken free speechor that written on paper with ink, rather than radio, television, or the Internet. If the purpose ofthe Second Amendment is to protect the right of the people to possess the means to protectthemselves from invaders, criminals, and tyrants, then technological innovation in the means ofviolence requires that the people keep up with innovation too. The Second Amendment requires

that people should have a right to keep and bear the firearms of their day. Otherwise they wouldbe incapable of preserving “a free State” from despots, invaders, and criminals. Does this meanthere should not be any restrictions on the kind of firearms the people should keep and bear? Once we take the above understanding of “well regulated militia” into account, then we canargue that, while it would be reckless and irresponsible to allow unregulated (i.e. unrestricted,untrained, and undisciplined) possession and use of automatic handguns, assault rifles, andmachine guns, it would also be contrary to the democratic interpretation to prohibit the peoplefrom possessing automatic handguns, assault rifles, and machine guns, while allowing the policeand military to use these, if people were capable of demonstrating that they were sufficientlyskilled, knowledgeable, and responsible to bear them. If the only things that qualify a policeofficer or soldier to use automatic weapons are training and discipline, then any person who candemonstrate the same level of training and discipline should be able to possess the same kindof weapons as their professional counterparts. Providing that a person is a law-abiding adult, thedemonstration of adequate training, knowledge, and skill—alongside proper storage andtransportation facilities—should be the only restrictions upon firearm possession. If one’s neighbors constituted a “well-regulated militia,” skilled in the proper use of theirfirearms and trained in rapid response, and could be called upon by using communications orpanic buttons, then there is good reason to believe that crime would be reduced. It is reasonableto believe that the existence of such a militia would be able to defend the country from aninvading army, an insurrection, or tyrannical government, and would exercise the right to beararms responsibly. In this way, the universal rights to self-defense and self-determination wouldbe preserved and respected through organized, collective action. But, you may ask, what of heavier weaponry? The same argument applies. Providing thatpeople are properly trained and disciplined in their use, care, and storage, there is no goodreason to prevent law-abiding adults from possessing weapons such as bazookas, grenadelaunchers, anti-tank rocket launchers, flamethrowers, etc. Such weapons would be very useful inthe event of having to defend against an invading army or prevent a coup d’etat. It is alsoreasonable for trained and disciplined citizens to possess high explosives and skilled insabotage and guerrilla warfare fighting. It certainly is highly questionable that private securityfirms (including mercenaries by any other name) are permitted a range of weaponry unavailableto the citizenry in general. But what about the possession of weapons such as tanks or fighteraircraft, surely civilians should be banned from owning these? Again, the same argumentapplies. However, clearly there is a greater level of training and discipline required to use,properly care for, and store such armaments. In all practical likelihood, given this requirementfor a higher level of training and discipline, as well the expense of maintaining tanks and fighteraircraft and the need for their proper storage, these would be used only within the stateorganized militia anyway, such as the National Guard, owned collectively. Surely there are limits! We cannot let a militia, no matter how “well-regulated” have accessto nuclear, biological, and chemical weapons, right? That would be madness, right? Yes, it

would. But the implications of this run deeper than we might initially think. It is ridiculous toassume that military training conveys a deeper moral character than militia training would. Allother things being equal, there is not any difference between well-trained and disciplinedmilitary personnel and well-trained and disciplined citizen militia. If any weapon is toodangerous to be possessed by a well-trained and disciplined citizenry, then it is also toodangerous to be possessed by well-trained and disciplined professional military. Given that acivilian government is supposedly representative of the people and answerable to the people, ifcivilians cannot be trusted with any weapon nor can the government and its agents. If weconsider it madness to have the nuclear arsenal under the watch of a well-trained anddisciplined volunteer militia, even with all the checks and safeguards, including oversight andcontrol by Congress and the President of the United States, then in what way is it sane to havesuch weapons under the control of the military, which is supposedly checked by the sameCongress and President? It is not. Such weapons should be banned outright. No governmentshould be permitted any weapons denied to the people and all nuclear, chemical, and biologicalweapons should be internationally outlawed and destroyed.[27] Furthermore, we can even question whether the existence of a standing army is compatiblewith the spirit of individual liberty envisioned by some of the Founders. Jefferson and Paine, forexample, considered a standing arming to be threat to the liberty of the people because it securesan imbalance of power in favor of the government over the people. Noah Webster wrote:“Before a standing army can rule, the people must be disarmed; as they are in almost everykingdom in Europe.”[28] On their argument, the “common defense” of the union should be theresponsibility of the militias, trained and organized by the several states, until such time that theyare called into service by Congress, upon declaring war against an invader or should aninsurrection occur. Only thereafter should an army be raised by Congress and placed under thecommand of the President, acting as Commander-in-Chief. Even the 1973 War Powers Act onlyallows the President to deploy the US Armed Forces for only up to 60 days in the event of “anational emergency due to an attack upon US territory” before seeking Congress’ approval,which still retains the right to demand that the President withdraw the troops before the 60 daylimit. Again, there are no legitimate constitutional or legal grounds for using US Armed Forcesto invade other countries, on whatever pretext, and claiming it to be an act of defense or in thenational interest. Ultimately, in a democracy, all the defensive functions of the military would beperformed by a “well-regulated militia” and would only be defensive functions. The 1934 National Firearms Act should be repealed and the standing army should begradually demobilized, as and when the people are trained and equipped into a well regulatedmilitia capable of taking over the “common defense” of the union, with the current militarypersonnel transitioned into instructors and trainers for the citizen militia. Could the USA be defended by the people acting as a militia? History provides us withnumerous examples of militias being able to defend their national territory againsttechnologically superior armed forces. Consider the example of the American Revolution andWar of Independence. Here is our first example of how the people were able to come together to

defeat a professional and well equipped military force. Also consider the French Revolution, theHaitian slave revolt, the Boer War in South Africa, Nestor Makhno and the Ukrainian peasantmilitias against the German army and then the Bolsheviks, the Russian workers and peasantmilitias against the invading foreign and “white armies” during the Russian Civil War, the CNT-FAI militias during the Spanish Civil War, the French Resistance against the GermanOccupation, Tito and the Yugoslav partisans against the Nazi German army, Mao and theChinese Red Army against the Japanese army and the Nationalist forces, the Cubanrevolutionaries, the peasant resistance during the Vietnam War, and the militias in Iraq andAfghanistan. If the people were organized into a “well-regulated militia” in America, with thecitizenry of every state, city, and town armed, organized, trained, and prepared to fight aninvading army, it would be impossible for any invader to invade and occupy the USA. Even thelargest army in the world, even if equipped with better weapons, would not be able to achievethis. The vastness of the USA, combined with a well-armed and determined citizenry, wouldmake the campaign doomed from the outset. Just imagine the problems facing a military forcewhen invading a country the size of the United States of America, populated by 300 to 400million people, armed and organized as militias throughout the several states. However, is America ready for this democratic interpretation of the Second Amendment?Many Americans will be horrified at the idea of allowing citizens access to military weaponry,even if they are properly trained in their use, care, and storage. For these people, this ideainvokes images of thugs driving around in trucks, terrorizing their town with machine guns, ordrunken young men taking their militia-issued stinger missile launchers down to the freeway toplay with the traffic. People will have concerns about the possibility of vigilantism, mob rule,street gangs, and civil war. Even though these are hardly the behavior one would expect from a“well-regulated militia,” these are legitimate concerns. People would also be quite reasonablyconcerned with the prospect of criminals being able to steal heavy weapons from the citizenry.Most people, liberals and conservatives alike, adopt some kind of statist interpretation of theSecond Amendment because they hold that society is safer if citizens are not permitted militaryweapons, such as machine guns and rocket launchers, or explosives. There are good statistarguments for the strict control of such weapons. This is why “the compromise position” isappealing and many Americans adopt a statist interpretation and think that the national defense isbest secured by professional armed forces, while holding to an individualistic interpretationregarding the means for their personal defense and that of their homes and families. If you think that individual citizens should not have the right to own and use an Apachehelicopter gunship, then you advocate some level of gun control. If you think it reasonable for thearmed forces to have such weapons, then you hold to a statist interpretation. After that, it is amatter of degrees. Where the line should be drawn is a matter of debate and opinion about whatgood legislation should be and what “well-regulated” should mean. One person may think thatthe line should be drawn at rocket and grenade launchers, another at automatic weapons andassault rifles. The decision as to where that line should be drawn is the job of Congress and thestate legislatures. If people do not like those decisions, they have the ballot box as a remedy.

Most people would agree that some level of gun control and regulation (in the sense of rulesand laws) are necessary to prevent irresponsible and violent individuals from gaining access topowerful weapons. These people are not “gun grabbers.” They are citizens with genuine desiresto live in a “well-regulated” society, without fear of being gunned down in the street or theirchildren being murdered in school by some lunatic with an assault rifle. Freedom also involvesthe freedom from arbitrary violence and fear. People are not “gun grabbers” for wanting toregulate the right to bear arms and keep bazookas, rocket launchers, and machine guns, assaultrifles, and even handguns out of the hands of violent madmen, especially in a society for whichthe very idea of collective responsibility is an anathema and widely considered to be un-American “socialism.” Instead of hurling insults at anyone who even suggests gun controls,perhaps organizations such as the National Rifle Association would be better advised toconvince their fellow Americans that they strongly advocate proper training and responsible gunownership, which are themselves forms of gun control. Arguably, the problem of gun violence in the USA is due to poor public education,inadequate mental health care, and failing cultural values. The US Constitution was based on theideals and values of the Enlightenment for which moral conscience, personal responsibility,scientific knowledge, and reason were paramount. These ideals and values are being eroded.While I can understand the calls for further legal steps to control and limit gun ownership in thelight of horrific and pointless acts of gun violence, these will only deal with the symptoms andnot the causes of America's deeper societal problems. Americans need to take a good hard lookat the cultural values that are being promoted in the media and schools, which celebrate violenceas glamorous, glibly represent the avoidance of personal responsibility as being cool, treatlearning and reflection as geeky and weak, idolize bullies and whores, and have turnedcorruption and greed into societal norms. The political and legal problems in America comedown to the question of how the values of political life have become reduced to those ofopportunism, personal advancement, and enrichment at the expense of other people. To behonorable and decent is to be a sucker. The cultural values of America politics have become thevalues of the Mafiosi.

While it would be foolish to blame Hollywood and television for all of society's ills and theexistence of mad gunmen, we would do well to look carefully at how the media celebratesviolence and greed as manly and sexy, and how it denigrates intelligence and cooperation aswimpy and boring. We need to look at how violence is glamorized and presented as heroic inmovies and on television. We need to look at how media and politicians profit from promotingviolence, ignorance, and division, rather than promoting peace, enlightenment, and solidarity.We need to look at how we let them get away with it. Without doubt, banning assault rifles or semi-automatic handguns will save a few Americansfrom violent madmen, but it will not save Americans from organized and violent criminals, andit will not save Americans from their own society’s failings. Such a ban would be simplysweeping America's problems under the carpet and is a knee-jerk reaction to horrible and evilacts.

What is needed in America is a deep and honest look at American society and how peopleunderstand the concepts of citizenship and government. The democratic interpretation of theSecond Amendment itself requires that people are already predisposed to live democratically—to organize themselves collectively and take responsibility for the liberty and protection of eachother. The challenge of the American Left still remains that of education and persuasion ofAmericans to raise their political and social consciousness, to cooperate with each other, toshow solidarity with their fellow human beings, and live up to their democratic potential. Through education, political participation, and cooperative action, once the people realizetheir potential to become a self-governing society and organize their social and economicconditions democratically, for the benefit of everyone rather than a few, then the people, capableof defending themselves, will be able to realize their revolutionary potential as the torch-bearersof the American Revolution, the values and ideals of the Enlightenment, and the emancipation ofhumanity from tyranny and oppression. The argument of this essay is that Americans should adopt the democratic interpretation of theSecond Amendment, as they should adopt a democratic understanding and practice of citizenshipand government. The responsibility for the protection and governance of society, as a freesociety, must be divided throughout that society as a collective responsibility—it must be aresponsibility of the people, in practice as well as in principle, as a continuation of theexperiment in self-governance. The people must do it for themselves. If the existence of astanding army threatens the very possibility of a democracy, by providing the government withan imbalance of power over the people, then, in a democracy, it would be the responsibility ofthe people to arm, train, and organize themselves, so as to defend themselves and a their societyeffectively, and to demand that their government demobilizes the military and leave it to thecitizenry to defend themselves, their neighbors, their communities, their states, and their country.The government must be at the mercy of the people. The individual principle of a right to self-defense extends into a collective principle of a right of the people to defend themselves as a freepeople, as being a condition for the possibility of the existence of democracy. It is an act ofsolidarity and collective self-determination. In a democracy, the responsibility for the protectionof life, liberty, and property is the responsibility of all the people; to delegate this responsibilityto agents of the government is to surrender liberty because it gives the government the monopolyover violence, which gives it a monopoly over power, and ultimately gives it power over lifeand property as well. The balance of power between government and the people cannot bemaintained if the government possesses a monopoly over the means to commit acts of violence;yet it is this balance of power that preserves the legitimacy of government as governing with theconsent of the governed and is the cornerstone for all other rights.

[1]NOTES: The Constitution of the United States of America (Bedford, Mass: Applewood Books, n.d.)[2] In his 1816 letter to Samuel Kercheval, Jefferson argued that the Constitution should be rewritten every generation (every 19

or 20 years) because the “the dead have no rights” and the living should choose for themselves the form of government bestsuited to their own happiness and good. An online copy of this letter can be found at Teaching American History:http://www.teachingamericanhistory.org/library/index.asp?document=459In a 1789 letter to Madison, Jefferson argued that people have no right to impose laws on future generations. Imposing unalterablelaws on future generations or being unquestioning loyal to the laws of the past would suppose that “the earth belongs to the deadand not the living.” An online copy of this letter can be found atFrom Revolution to Reconstruction http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl81.htmAs he also wrote in his 1824 letter to John Cartwright: “A generation may bind itself as long as its majority continues in life; whenthat has disappeared, another majority is in place, holds all the rights and powers their predecessors once held and may changetheir laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man.”Letter to John Cartwright, 1824; http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl278.htm[3] See Karl Rogers, Occupy Media! Propaganda and the Free Press (Amazon Digital Publications, 2012); and, DebunkingGlenn Beck: How to Save America from Media Pundits and Propagandists (Praeger, 2011)[4] For example, see Michael Moore’s 2002 documentary Bowling for Columbine. [5] The Children’s Defense Fund, “Protect Children Not Guns 2012” http://www.childrensdefense.org/child-research-data-publications/data/protect-children-not-guns-2012.pdf[6] Linda L. Dahlberg, Robin M. Ikeda, and Marcie-jo Kresnow, “Guns in the Home and Risk of a Violent Death in the Home:Findings from a National Study,” The American Journal of Epidemiology, Volume 160, Issue 10, pp. 929-36: http://aje.oxfordjournals.org/content/160/10/929.full[7] “Handgun Crime Up Despite Ban”, BBC, July 16th, 2001[8] Home Office, “Firearms Offences and Intimate Violence 2005/6”http://rds.homeoffice.gov.uk/rds/pdfs07/hosb0207.pdf[9] Home Office, “Homicides, Firearms Offences and Intimate Violence 2010/11”http://www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/crime-research/hosb0212/[10] Home Office, “Knife, Gun, and Gang-related Violence 2010/11”http://www.homeoffice.gov.uk/crime/knife-gun-gang-youth-violence/[11] Federal Bureau of Investigation, “Crime in the United States.”http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/offenses-known-to-law-enforcement/expanded/expandhomicidemain[12] For example see the media watchdog Keep and Bear Arms: http://www.keepandbeararms.com[13] District of Columbia v. Heller, 554 U.S. 570 (2008)[14] United States v. Miller, 307 U.S. 174 (1939),[15] Arver v United States, 245 U.S. 366 (1918)[16] Letter from Thomas Jefferson to Abigail Adams, 1804; see Lester J. Cappon, The Adams-Jefferson Letters: TheComplete Correspondence Between Thomas Jefferson and Abigail and John Adams (Chapel Hill, NC: The University ofNorth Carolina Press, 1988)[17] William Preston, Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 (University of Illinois Press,1994)[18] It should be of little surprise that the Wilson Administration established the Creel Commission and the Office of PublicInformation to develop propaganda campaigns to manipulate the American population to support the war effort and to vilifypacifists and opponents. See Occupy Media! Propaganda and the Free Press.[19] Ernest Freeberg, Democracy’s Prisoner: Eugene V. Debs, the Great War, and the Right to Dissent (HarvardUniversity Press, 2008)[20] Katherine H. Adams Alice Paul and the American Suffrage Campaign (University of Illinois Press, 2007)[21] Howard Zinn, A People’s History of the United States (Harper Classics, 2010) , Chapters 12 and 13[22] The Papers of Thomas Jefferson VOL 1, 1760-1776, ed., Julian Boyd, Princeton University Press, 1950), p. 344[23] “That the people have a Right to mass and to bear arms; that a well regulated militia composed of the Body of the people,trained to arms, is the proper natural and safe defense of a free state, that standing armies, in time of peace, are dangerous toliberty, and therefore ought to be avoided.” Within Mason’s declaration of “the essential and unalienable Rights of the People,”—

drafted by Thomas Jefferson, George Mason, and others, and later adopted by the Virginia ratification convention, 1788.[24] Speech before the Virginia ratification convention, June 14th, 1788; http://conservativeminds.org/patrick-henry/patrick-henry-on-the-need-for-a-militia/[25] The Declaration of Independence (Bedford, MA: Applewood Books, n.d.)[26] For an online copy of this speech go to Presidential Rhetoric at presidentialrhetoric.com:http://www.presidentialrhetoric.com/historicspeeches/jefferson/stateoftheunion.1808.html[27] Obviously, there are enormous problems with the questions of how to achieve and enforce such an international ban. Thediscussion of this topic is well beyond the scope of this essay. However, perhaps a first step that the United States governmentcould take would be to assert unilaterally the doctrine that the pre-emptive use of nuclear, biological, or chemical weapons wouldbe illegal and a war crime, thus making it illegal for any military personnel to give or obey any order to participate in an attackusing such weapons. Neither Congress nor the President could order the first use of such weapons, under any circumstances.This initiative would take the step of asserting that such weapons should be reserved for proportionate retaliation, until such timeas an international ban and mechanisms for enforcement have been negotiated and agreed upon.[28] Noah Webster, An Examination into the Leading Principles of the Federal Constitution (Gale ECCO, 2010), firstpublished 1787.