A PHILOSOPHER READS THE SECOND AMENDMENT Part II Guest Post by Merrill Ring

 

A PHILOSOPHER READS THE SECOND AMENDMENT

 Merrill Ring 

Part II The Second Amendment and the Human Appendix 

So, what does the Second Amendment, the first clause of it, have to say about militias?  Worries about whether its talk of militias is relevant to the understanding of the whole has led to a failure to consider carefully what is actually said about militias there.  The amendment says that a militia “being necessary to the security of a free state”. 

 

There is a simple question to be asked:  is that true?  Is a militia, well-regulated or not, necessary to keeping a free country free?  The answer is obviously No – and pointing to the current United States proves that.  We maintain our freedom from external foes without having militias.  (Note:  the National Guard is not a militia – it is a government agency and the militias thought of in revolutionary times were not. And while the current terrorist organization which call themselves “militias” are composed of citizens and not part of the government, they act in opposition to the government rather than in support of it as the militia named in the Second do).

 

Since we today are a free state without such a force as cited in the Second, how do we account for that false statement occurring in the Constitution?  While Madison generalized too far, he was in fact (of course) thinking not of free states generally but of this particular one, the United States as it was in the1780’s.  Why, though, would he have said that militias are necessary to the security of his country? 

The crucial answer to that resides in the Constitution that governed the new country prior to the Bill of Rights, specifically Article I, section 8, clause 12 (the Army Clause).  “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;….”  It is that provision that lies behind the idea that a militia is necessary for our defense. 

The Constitution did not allow for standing armies, regular armies.  The experience the framers had of the British regular army led them to reject such an army for their new country.   So, in the Army Clause they limited the creation of such an army.  That limitation must be contrasted with what is said about a navy in the very next clause (Clause 13): “To provide and maintain a Navy;”.  Congress is called upon to establish a Navy and to keep it in operation (“maintain”).  Armies would come and go – the Navy will persist.

And yet, what about a need for a fighting force between emergencies, given that it will take time for Congress to order the raising of an army and for there to be a successful creation of that army when an emergency arises?  It is just here that the Second Amendment, with its announced need for a militia, was called for.  Citizen militias were to be what functioned to perform military service in the absence of a regular army: they were necessary for the security of the country should the Navy not succeed in preventing enemy forces from landing.

The Second Amendment was not written and ratified to establish individual rights:  it was put in place to operate as a necessary means to defend the United States in the circumstances created by the Constitution.  That is what the text of the Second says.     A historian concurs: “The Constitution's drafters hoped that the militia would remain the nation's primary means of defense against foreign aggression. Considering the development of military tactics and technology of the time, the state militias were able to adequately fill this role. Moreover, the Constitution specifically gave Congress the power to call forth the militia to repel foreign invaders. Many of the Constitution's drafters hoped that the militia clauses would thus preclude the need for a federal standing army, which they viewed as the enemy of a democratic government.” (C. Dougherty, ‘The Minutemen, the National Guard and the Private Militia Movement: Will the Real Militia Please Stand Up?’, 28 John Marshall Law Review 959, 962-970, Summer 1995).

Over the course of American history, however, a standing army was created and grew and, concomitantly, citizen militias shrank until they faded away.  There may  have been no precise moment when a sufficient regular army came to be and so when the militia envisioned in the Second Amendment became unnecessary for the country’s security and faded from existence. 

What we have to notice here is that when that moment occurred, what was the effect on the Second?  Answer: The amendment logically went into the constitutional dead letter file.  And with that, the Second Amendment’s right of citizens to keep (and bear) arms became, without force, empty.

For philosophers, there is an analogous topic.  It was begun by Bertrand Russell who (about 1900 when France was a Republic) raised the issue of whether the present King of France is bald or not.  He created some of his major philosophical machinery trying to answer that, coming down on the side of holding that it is false that the present King of France is bald.  Half a century later (Sir) Peter Strawson pointed out that both “The current King of France is bald’” and ‘The current King of France is not bald’ presuppose that France has a king.  But that presupposition is not true.  Hence, today (France not being a monarchy) neither the statement ‘The King of France is bald’ nor “The King of France is not bald” has a truth value – they are neither true nor false, as there is no King to have or not have hair.  They have, under the condition of a false presupposition, lost a claim to truth or falsity and are thus not subject to sensible discourse.

There is in American law one of those previously discussed maxims of law which provides a norm about what judgment should be made if a legal situation analogous to the philosophical case arises.  The very first maxim of jurisprudence in the California Civil Code (and I understand that the maxim can be found in other Codes) is: “3510.  When the reason of a rule ceases, so should the rule itself.”

In the Second Amendment, the “reason of a rule” is, as argued earlier, the first clause, “the rule itself” is the second clause.  When the country no longer needed militias to provide security, the maxim informs the fair and impartial jurist that the rule granting citizens a certain right pertaining to gun ownership also ceases.

It is very important here to be clear what that argument shows.  It does not follow from anything held here about the Second Amendment that the cessation of civilian militias in the military needs of the country entails that citizens have no right to gun ownership. The only conclusion is that the Second Amendment has ceased providing such a right:  there are now no Second Amendment rights.  Of course, the right to keep arms may well have Constitutional backing elsewhere in the document (to be discussed shortly).

In sum, to adapt a well-known saying, the Second Amendment is dead, dead, dead.  Well, probably that is not the best way to put it.  A good analogy is to the human appendix.  It is an organ that once had a function in the human body but over the course of time has ceased having a role though it remains part of the body – and sometimes, though now useless, it becomes inflamed causing pain and suffering.  So too the Second:  though now without a purpose, it remains in the body politic and is the source of political inflammation, pain and suffering.  (Someone given to horror movies might say that a better analogy would be to compare the Second today to the living dead.)

The equivalent of an appendectomy would be a constitutional amendment to repeal the Second.  Such an attempt does not look at all plausible in any modest period of time.  Of course, the Supreme Court might come in a variety of ways to defend gun ownership not on the grounds of the Second but of the Ninth:  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 

There has been thought given to that in the constitutional literature.  I understand that the subject of the Ninth is a vexed topic for the legal establishment:  It does seem to the American on the Clapham bus that, as Bishop Berkeley once said, they have kicked up a cloud of dust and then complain that they cannot see.  It seems clear that the Ninth covers such things as a right to marry (the right to marry the person of your choice assumes a right to marry), a right to raise your children (“parental rights”).  A  right to private ownership of guns for individual purposes (as different from the right for community purposes  given in the Second) seems to fit into that category as private gun ownership has an unbroken history going back to the Mayflower and far beyond as the main body of Scalia’s opinion shows.  (The majority of Scalia’s opinion would function wonderfully to defend individual gun rights under the Ninth.)

The American gun culture would not like that switch to the Ninth.  For one thing, there would be no “shall not be infringed” rider, the phrase that has produced open carry and assault rifles and school shootings.  But using the Ninth would also make gun ownership for individual purposes, an inferred right:  with the Second that culture has a symbolic victory – gun ownership is explicitly in the Constitution, even as far up as the Second Amendment to it, showing that guns are central to American life.  The truth is, however, that the Second is an expression of a need of the country back in its infancy and has been for some time constitutionally dead.