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2A: The quiet part out loud [1]

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Date: 2023-11-28

A couple of things right up front:

This is going to be long. It’s just how I write. Hopefully I can make it interesting enough to be worth it.

To avoid them being so long folks never get to the “meat”, I have moved the disclaimers — and there are a whole bunch of them — to be after the main thing. Please don’t assume I’m all for guns; my position, such as it is, is a lot more complicated than that, and it also regularly evolves.

One disclaimer still up front: I’m neither trolling nor trying to start a pie fight. I have plenty of opinions, but I will do my best to state them as such, rather than facts. If I fail in that, point it out in comments, and I’ll try to do what I can to address it.

I lied, one more disclaimer: I could be wrong.

Okay, with all of that out of the way…

Discussions around guns in America crop up here on a regular basis. Usually because of gun violence making the news. Several times now, there has been something that it bugs me that people seem to overlook in the discussion. It is the quiet part of the second amendment to the Constitution of the United States, the unspoken but also incontrovertible (as far as I can see) implications of it:

The second amendment is about killing people. And it is about “weapons of war”.

The kicker is that so far as I can see, those statements are true no matter which interpretation of it you think is correct, or what the motivations were for including it. And the reason that I bring it up is the frequency of “you don’t need anything like that to hunt, or for self defense” or “these are battlefield weapons and civilians have no business having them” arguments. Which gloss right over the question of “does the amendment intend exactly that ?” But before going further, let’s make sure we’re all looking at the same words, real quick. So, courtesy of the National Archives, here it is:

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

Nowhere does it mention hunting. Nor, as far as I can see, does it specifically mention self-defense — although that seems to have been picked up as an secondary benefit implicitly possible if the primary purpose is being achieved (this is one of the points that seems least clear from a simple reading approach, to me).

What it does specifically mention are a “well regulated Militia” and “the security of a free State”. While hardly a source to be used uncritically, Wikipedia's page on the meaning of "militia" specifically in the United States seems to be rather on point. The particularly relevant aspect being that as the word was used during the relevant time frame, the militia were specifically constituted from the civilian population, rather than being a standing army. However, their intended use was fundamentally military in nature, as the name reflects. Specifically, the only way that a militia could possibly be of use to “the security of a free State” under threat would be military action with the most effective weaponry available. Whether personally supplied or provided by the state (discussed further below), that meant weapons of war… in the hands of civilians. Being used to kill other humans.

There are, of course, a variety of different possible interpretations of the second amendment. But as noted above, they all end up coming to the same conclusions, although some of the implications vary quite widely. So let’s run through the big ones I am aware of. Please note that I’m trying to cover all bases here; whether I agree with any particular case is an entirely separate discussion.

Possibility 1: If it isn’t crew served, go for it (“Yee Haw!”)

I suppose this possibility actually has, strangely, the least compelling argument for “it is about killing people”, in the sense that if you just allow whatever, the “why” of allowing whatever isn’t particularly straightforward to narrow down. However, it certainly would show a sufficient lack of concern over the fact that people would inevitably get killed that it seems hard to argue that it isn’t about killing people. Certainly it being about “weapons of war” is pretty much part of the definition of this case.

Possibility 2: “Private” Militia (standard infantry equipment, citizen provisioned)

The classic “movie patriot” concept. As best I can tell an accurate portrayal of some, but by no stretch all, militias in the era; quite a lot of them fall into the next category instead. Brought forward to the modern day, this implies individual citizens being able to own “military grade” infantry service weapons. From everything I can tell, for a long time that proposition wasn’t even especially controversial — basically up until the advent of the machine gun, although I’m sure there must have been some variation in acceptance even prior to that.

Possibility 3: “Public” militia (standard infantry equipment, state provisioned)

Better known as “national / state guard units”. This does not imply a personal (individual) right to own such arms, only a collective (as a state) right to do so — but the arms in question actually become a lot broader in this case, as states at the time could absolutely expect to be faced with waging at least short-term military conflicts at scale. Especially states bordering a foreign power (which was pretty much “most of them” at that point, remember). As far as I can tell anything short of strategic scale weapons would rationally be fair game here, and one could certainly make an argument that even those aren’t ruled out, by virtue of not being explicitly prohibited in an otherwise broad right.

Possibility 4: “They only meant exactly what they had right then” (what is ‘innovation’?)

Black powder rifles were, at the time, most assuredly weapons of war. Extensively used in the one they had just finished fighting not terribly long before. And used to kill quite a lot of people.

Possibility 5: “It was about hunting fugitive slaves” (I have no joke here, it isn’t funny)

If someone has already risked death to escape, any threat short of that is not likely to be terribly effective at coercing them to return to their former situation. And they certainly would have wanted the best weapons they could get for doing it.

Possibility 6: “They intended that the people be able to overthrow the government” (suicide squad)

To even hope to have a chance here, military-level armaments would absolutely be required. Something they had quite a lot of very recent experienced with, including “lacking them” at times. And they certainly would have expected to be killing people in the process.

Basically, it comes down to the fact that in order to be a useful weapon in the context involved, something had to be a “weapon of war”. And standing armies were something they had very bad experiences with and quite a lot of reasons to distrust, so “but they only intended them for the military” is nonsensical. If they had meant that, they would have said it; they certainly talked about non-militia forces elsewhere. None of that means that as written it is still a good idea today — that is, once again, a separate conversation. But being able to kill people, using weapons of war? Yeah, it is absolutely what they were talking about.

Now, the many, many disclaimers:

I have very basic “civilian” familiarity with firearms. Enough to understand the obvious dangers, handle them with care, perform basic “user-serviceable” maintenance with a manual or similar guidance, and so on. I can’t even claim to know how much I don’t know, except that it is clearly somewhere north of “a lot”. I am not an expert, but I do try to pay attention to them and understand what they have to say.

Similarly, I am neither a trained historian nor a scholar of constitutional law. It is almost certain that I have some amount of “pop culture contamination” running around in my head. However, the beliefs I discuss above are based on the assumption that the people who wrote the Constitution intended it to be understood “well enough to get by day to day” without such a background, as long as one then consults with a suitable expert when subtleties arise. In short: drawing logical conclusions from basic statements is not unreasonable, although it may be incomplete, especially once history and case law come into play.

If you think firearms are evil and the second amendment is the worst idea ever and we should get rid of it? More power to you! That’s what the amendment process is for, and any qualms I might have about such a proposal would be a thing to be brought up in the context of having those discussions. In fact, some of what I said might make it easier to sell such a change.

If you think the current opinions from SCOTUS are out of whack and do not reflect anything sane? Certainly a discussion that can be had, and quite probably is worth having. It just isn’t the focus of this particular diary (it might well be the subject of a future one).

If you think the US fetishizes guns far too much and it isn’t healthy or a sign of a stable society? Chances are pretty good that I actually agree with you on most if not all of this aspect of the subject.

If you think that assault rifles are only good for killing people… to the extent of my (very limited) experience, I agree with you. At the very least I agree that it seems like a logical proposition given their history, intended uses, and at least some of the (again, limited) data I have observed to date, and an argument to the contrary needs to have a fair bit of evidence or explanation as to why that interpretation of the data is wrong.

If you think that the notion of pretty much any of the modern private militias being able to take on an organized unit of state or federal troops of any meaningful size is basically laughable… again, my experience is quite limited, but from every indication I’ve seen to that this seems like a valid assessment.

If you think that a state-organized militia is the only valid interpretation, keep in mind that the Florida State Guard absolutely qualify. And so far as I can tell, traditionally would have been expected to have military training as part of being “well regulated”. Certainly that seems to be true of the other state guards in existence today.

Responses may be delayed, I have to run errands today. Ideally if this is discussion-worthy folks will have plenty to discuss even without me.

[END]
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