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DEMOCRACY & THE SECOND AMENDMENT

Karl Rogers







Copyright 2012, 2013 by Karl Rogers
Second edition

Published by Trbol Press
Los Angeles, California
www.trebolpress.com

All rights reserved. No part of this publication may be reproduced or transmitted in any form or
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ISBN-10: 14894077385
ISBN-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 in
general has been their opposition to the right to bear arms. This has effectively alienated
American gun owners, especially among the white working class in rural communities across
America. This has allowed the Republican Party and the American Right in general to position
themselves as the allies of the American white working class, despite the fact that this political
party supports the same moneyed interests that have suppressed and exploited this class. The
argument of this booklet is that it is time that the American Left reconsidered its rather
reactionary and shallow understanding of the right to bear arms, as given in the Second
Amendment 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 to
keep and bear arms shall not be infringed.

Having said this, it is important to be clear from the outset that the argument below is not
premised on a sheepish and mindless adherence to the wording of the Constitution, as if it were
a sacred text written in stone. The Constitution was not written to be blindly followed as
doctrine. It is a document written by human beings, warts and all. Its purpose was to provide a
framework for equality under the law and to provide the foundation upon which people could
develop a shared understanding of the nature of good government and citizenship. Given that
Article V presents the procedure by which the Constitution can be amended, it is evident that the
Framers at the Philadelphia Convention were aware that the people would need to amend it from
time to time, and adapt it to changing circumstances, such as the abolition of slavery or the
formation of political parties. Thomas Jefferson (who was not present at the Philadelphia
Convention) went even further and argued that it should be rewritten by every generation (every
nineteen or twenty years or so).[2] Like it or not, the Constitution is a living document. It is open
to differences of interpretation among the members of each generation of Americans, as they try
to apply it to the changing circumstances and needs of America. This is not only unavoidable, but
it is desirable in a democracy.

Debates over the original meaning of the words written in the eighteenth century are helpful
for interpreting the Constitution, but they are not binding absolutes. Without performing a sance,
we cannot know what the Framers intended. Their circumstances were different from those of
contemporary America, and they probably would have written a different document were they to
write the Constitution today. The meaning of the wording of the Second Amendment remains
open to interpretation. In fact, the exact wording of the original Bill of Rights (which hangs in the
US National Archives in Washington D.C.), as written by congressional clerk William Lambert
in 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 pauses
without significance. Or perhaps they are just smudges. Do we really need to know? Of course
we dont. What matters is how the Constitution helps and guides people to better understand how
freedoms and rightssuch as the right to keep and bear armsshould 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 the
meaning of the Second Amendment must be situated within the historical context of the American
Revolution and the founding of a new nationas expressed in the Declaration of Independence
and the Constitutionit also must be situated in ongoing democratic deliberations about what it
means to be a good citizen, with natural rights to life, liberty, and the pursuit of happiness, and
how this relates to good government, which governs with the consent of the governed. This
comes down to fundamental questions about human nature and our relation as citizens with the
state. Any answers to these questions are themselves part of the ongoing American experiment in
self-governance. How Americans understand and develop and share their experiences of this
experiment will change and develop in time, in response to changes in American society and the
wider world, as well as changes in language, demographics, culture, values, and the aspirations
of the American people.

It also should be pointed out that there are many American gun owners who consider
themselves to be progressive or liberal, and either support the Democratic Party (or a Third
Party) or do not vote. There are also many Americans who consider themselves to be
conservative or libertarian, either support the Republican Party (or a Third Party), and do not
possess any firearms, nor wish to. It is not a right or left wing issue. The problem is that it has
become widely perceived that the American Left and Democratic Party oppose the right to bear
arms. They have become perceived as gun grabbers. In part, this is due to the machinations of
the right wing propaganda machine.[3] But, it is also in part due to the failure of the American
Left to develop a positive and substantive position on the Second Amendment and the
democratic purpose of the right to keep and bear arms, rather than merely offering a media-led
series 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 17
others 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 committing
suicide. While the need to do somethinganythingto stop these kinds of atrocity from
happening 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 manner
if we really want to understand the situation and improve matters. We need to start with an
attempt 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. Lets
start with the opposition to the Second Amendment.

Generally speaking, opposition to the Second Amendment is based on the position that it is an
obsolete amendmentunnecessary in a modern societyand that it should be repealed. In
general, 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 obtain
them.

According to advocates of this position, the right to keep and bear arms should be limited to the
police and the military. The argument is that individual citizens should either have no right to
buy and possess firearms, or only have a strictly limited right (i.e. firearms of a limited caliber
and rate of fire, limited magazine capacity, usable only in shooting clubs or by historical
reenactment societies, subject to background checks and requiring a permit, etc.) Advocates of a
limited right to bear arms have also argued that all firearms should be registered in a national
registry, self-defense should not be considered as a good reason to possess a firearm, and the
defense of the citizenry from armed criminals should be left to law enforcement. This position
presupposes that the citizenry cannot be trusted with modern firearms and that the government
should strictly control or have a monopoly over the means to inflict violence. Henceforth, I shall
term this position as the statist interpretation of the Second Amendment.

Advocates of the statist interpretation also often argue that legally available firearms make it
more likely that accidents involving children and firearms will happen, and also make it
possible for disturbed children to obtain firearms and take them to school. Massacres such as the
Columbine high school shooting in 1999 are often cited as one of the consequences of a legal
firearms industry.[4] They will also cite concerns about vigilantes or militias, such as the
Minutemen or Black Panthers, taking the law into their own hands and innocent bystanders being
caught in the crossfire. Legally obtained firearms have also been used in incidents of domestic
violence (including the murder of children) and by individuals who panicked and mistakenly
killed someone they perceived to be suspicious and a threat. The Stand Your Ground laws in
states such as Florida have come under the media spotlight since Trayvon Martin was shot and
killed by George Zimmerman in February, 2012.

The statist interpretation is based on the belief that strict gun control reduces the number of
firearm related deaths. This seems reasonable. But, is this true? While most accidental shootings
are the result of hunting accidents, there have been too many unfortunate incidents in which
innocent bystanders were killed in the crossfire between untrained people using firearms. The
Childrens 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 that
the presence of a firearm in the home increases the chance of suicide or a crime of passion, often
in conjunction with drug or alcohol use.[6] Removing firearms from the general population
reduces the likelihood that petty (unorganized, opportunist) criminals, curious or alienated
children, or mentally ill people will gain access to firearms, and if they do, they are limited to
air pistols, imitation firearms, antique weapons, or starting pistols. This cannot be reasonably
denied. The existence of a legal firearms market means that criminals, children, and mentally ill
people will find it easier to find firearms. Accidental shootings, as well as murders and suicides
with firearms, are much, much rarer in the United Kingdom, for example, than in America simply
because there are far fewer firearms in the UK. Simple probability and logic shows that there
will be a greater number of accidents and deaths involving firearms if more firearms exist in
society.

It would seem that the statist interpretation has considerable merit and forms the basis for
strict laws to control and limit the possession and use of firearms. The UK has some of the
strictest gun control laws in the world, so lets 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 Assize
of Arms, as decreed by King Henry II. Gun control in Britain began in the sixteenth century, after
the English Civil War, when Parliament announced Parliamentary Sovereignty to write laws and
abolished all prior pronouncements by monarchs. The 1689 Bill of Rights gave only Protestants
a conditional right to bear arms: That the subjects which are Protestants may have Arms for
their defense suitable to their conditions, and as allowed by law. This was largely considered
to be a natural right to resist persecution and for self-defense, but left Catholics and Jews largely
defenseless.

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 be
intent on committing a felonious act, and the 1870 Gun License Act required the purchase of a
license (for 12 schillings from a post office) to bear a firearm outside ones own house.

It was only in 1903, after the Pistols Act had been passed, that it became a legal requirement
to obtain a license before purchasing a pistol. Licenses could be bought from the post office and
it 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 for
possessing a firearm, and applications were denied if the chief constable decided that the
applicant 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 punishments
for the use or a firearm (or imitation) in the commission of a crime. It imposed a mandatory
sentence of 14 years for anyone using a firearm (or imitation) to resist arrest. (Remember that
police officers in the UK are not issued with firearms as standard equipment.)

The 1937 Firearms Act give chief constables increased discretionary powers when granting
certificates. 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 controlled
the sale and possession of machine guns.

English, Scottish, and Welsh legislation were reconciled under the 1968 Firearms Act, which
became the basis for British firearms regulation for twenty years. Since 1968, British subjects
have been largely restricted to double-barreled shotguns, requiring a firearms certificate and
police approval that the applicant has good reason to own a shotgun and can be trusted to use
it without danger to the public safety or peace. Anyone who had served more than three years
in prison or had shown mental health issues was denied a certificate. Firearms certificates for
other types of firearms had to be applied for separately, each application stating type and
purpose, such as for sport or work related. The procedure for vetting applications required
positive verification of identity; two referees of veritable good character (who could be
interviewed and investigated) who knew the applicant for at least two years; a good report from
a family doctor; a police inspection of premises and storage facilities where the firearm was to
be kept; a national police background check; and, the applicant was interviewed by a Home
Office Firearms Inquiry Officer. Penalties for the illegal possession of a firearm were set at
between five and ten years imprisonment and an unlimited fine.

It was after the 1987 Hungerford massacre, when Michael Ryan went on a shooting spree in
the 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 pistols
and .22 rifles were unaffected.

This remained the legal basis for gun control in the UK until the 1997 Firearms Act. This law
was the Labour Party led governments response to the 1996 Dunblane massacre, when Thomas
Hamilton, a licensed gun owner and former scout master (dismissed from the Scout Association
five years earlier) shot dead 16 children and their teacher, Gwyneth Mayor, in the gymnasium of
Dunblane Primary School. This law banned all handguns for private ownership (with the
exception of muzzle-loading black powered guns and pistols made before 1917 or of historical
interest). Even the Olympic shooting team is not exempt from this law and has to train outside of
the UK.

Now the UK firearms laws are among the strictest in the world. But, have they really reduced
the level of firearms based crime and murders in Great Britain and Northern Ireland? According
to the statist interpretation, we should expect to see a dramatic decrease in firearms based crime
and murders. However, in 2001, four years after the passing of the 1997 Firearms Act, the
British Broadcasting Corporation (BBC) announced in a news report that there has been a 40
percent increase in handgun crime![7] At first glance, it would seem that the evidence
contradicts 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 crime
was largely due to a change in how the police categorized handgun crime in the UK after the
1997 Firearms Act. This act included the use of imitation guns and starting pistols during a crime
under 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, and
this has resulted in a further increase in police reporting of handgun crimes. In fact, according
to 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 in
organized gang related crime using firearms, the number of homicides committed with firearms
had remained constant since 1997, and there hadnt been any significant change in the number of
firearm related deaths, accidents, or serious injuries.[8] If we look at more current data
published by the Home Office, we can see that the number of recorded crimes involving the use
of shotguns has remained relatively constant between 2000 and 2011, at just over 600 per year
in England and Wales, with a 25% decrease in the use of handguns between those years, from
4010 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 the
law did not make any dramatic difference. There has been the predictable gradual but slight
reduction in firearm related crimes and deaths as firearms became rarer in society. The lack of
any dramatic difference should be unsurprising, once we take into account that prior to 1996
there were less than 60 thousand firearms certificates (permits) issued for the possession of a
handgun (which is less than 0.1% of the population). Most British people did not even notice
that handguns had been banned! Criminal gangs continue to use illegally acquired firearms, as
they did before the law was passed.[10]

Of course with over 90 million gun owners in the USA we should expect a large difference in
the number of homicides committed with firearms in the USA to the number committed in the
UK. Again, this is simple logic. All other things being equal, there is a high level of crime and
murders using firearms to be expected if there is a large number of firearms among the general
population. If we compare the UK with the USA in 2010, there were 14 homicides committed in
England and Wales using firearms, whereas in the USA there were 9,369 homicides using
firearms (67.5% of all homicides).[11] 41.4% of robberies and 20.6% of assaults involved the
use of a firearm by the perpetrator. No one could reasonably deny that there is a dramatic
difference between the two countries if we compare official statistics of crimes involving
firearms. However, the reported crime rate in the UK and USA is approximately the same (at
about 800 per 10,000 people), with the majority of crimes being against property. It is not the
case that Americans are more prone to commit violent crimes and given the high level of firearm
ownership in the US it is reasonable to conclude that most gun owners keep and use their
firearms safely and responsibly. It is simply the case that the existence of more firearms
increases the likelihood of violent crimes using firearms. The legal firearms market makes it
easier for violent people to obtain firearms, legally or illegally. Again, this is a predictable
result. 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 FBIs statistics, we can see that in 2010 there were
133% more reported rapes and 125% more violent assaults in the UK than in the USA. Given
that the UK has a population approximately one-fifth of the size of that of the United States, this
means that a person is between 6 and 7 times more likely to be violently assaulted and a woman
is between 6 and 7 times more likely to be raped in the UK than in the USA. How are we to
explain this startling result? Are British people more prone to rape or violent assault than
Americans? This seems unlikely, especially given that Britain and America have about the same
per capita crime rate, so how can we explain it? Is it more likely that rape and violent assaults
are reported in the UK than the USA? Again, this seems unlikely and there is no evidence to
support such a claim, but we can explain this difference if we take civilian firearm ownership
into account.

In America, every year, there are numerous cases in which armed citizens have prevented
criminals or mentally ill people from committing acts of violence, without a shot being
fired.[12] Each year, there are millions of incidents of citizens using firearms successfully for
self-defense. In most cases, the firearms are not fired and no one is injured. These cases are too
boring to make the national media; if reported in the press at all, they only make local news. The
media are not interested in reporting that an armed assailant was successfully disarmed and
handed over to the police, without any shots being fired or anyone being injured. It is simply the
case that the legal firearm possession has prevented violent crimes such as rapes and assaults, as
well as successfully used to defend property. Contrary to the statist interpretation, armed citizens
do successfully prevent crimes and stop armed criminals. Armed women have been able to
protect themselves and deter would-be rapists or assailants. Firearms are equalizers that allow
people to defend themselves against much stronger and more violent people. Disabled and
elderly people are also better able to defend themselves and their properties against aggressive
assailants. There is a strong argument that law-abiding citizens can possess and bear firearms
responsibly and effectively use them for self-defense. It is arguable that, in the UK, the
Hungerford massacre would have involved fewer deaths had the local citizens had firearms for
self-defense. It is arguable that the Dunblane and Sandy Hook school massacres could have been
prevented if these schools had armed security. There is a reason why these madmen choose soft
targets, like schools and other gun free zones, rather than police stations, gun shows, or
National 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% and
6%, and this drop is apparent in states that allow conceal and carry and not apparent in states
that do not. It seems that relaxed conceal and carry laws do protect law-abiding citizens. Women
would be well-advised to take advantage of them. Arguably, given that criminals or prospective
criminals 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 legally
licensed 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 reports
consistently show that the vast majority of shootings and crimes involving firearms are
committed by people using illegally obtained firearms. The UKs example shows that strict gun
controls have not significantly lowered the levels of homicides and serious injuries from
firearms among criminal gangs. The number remains small, but fairly constant. This is largely
due to the fact that organized criminals obtain their firearms illegally, including military
hardware, and will do so regardless of the law. Predictably, the FBIs statistics shows that the
use of firearms by organized gangs of criminals is not significantly reduced by the strictness of
state firearm laws. Banning the legal possession and use of any weapon does not negatively
impact 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 profitable
opportunities to smugglers and corrupt officials. There is considerable truth to the slogan If
guns are made illegal, only the criminals will have guns. As the UKs example shows, even
when there is a nationwide ban on all firearms, organized criminals are able to smuggle them
into the country. Also, it can be reasonably surmised that, even if there was a worldwide ban on
all 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 or
otherwise, people have used all sorts of objects as weapons to kill other people. People intent
on murder will choose a different kind of weapon if a firearm is not available, even if firearms
make it considerably easier to kill people.

There clearly are good arguments on both sides of the debate regarding the Second
Amendment. Lets take a closer look at some of the arguments in support of the Second
Amendment.

Supporters of the Second Amendment claim that all law abiding Americans should have the
right 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 of
American history and identity, handed down from generation to generation. They consider this
tradition to be enshrined in the Bill of Rights and claim that it is an important part of the liberty
of American citizens, and they argue that the individual citizens right to self-defense was taken
for granted by the Founding Fathers. Indeed, Thomas Paine, Thomas Jefferson, and George
Mason all argued in favor of the individual citizens right to bear arms as being essential for
liberty and self-defense.

Of course, it does not make something good just because it is traditional. After all, at one
time, slavery was considered to be a tradition in the United States. We need to provide reasons
and argument to defend any tradition. For the reasons I have given above, advocates of the
Second Amendment can criticize the statist interpretation that protection of the citizenry is best
left to the police and military. Not only can they show that citizens are capable of defending
themselves, but they can also argue that relying on the police to defend the citizens against
violent criminals is nave. There are too many examples of cases when the police were not
available; 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 informed
of the seriousness of the situation. Advocates of the Second Amendment argue that strict gun
control 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 strong
argument that people are best placed to defend themselves. Henceforth, this position shall be
termed 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 to
strike a middle path in the case of the District of Columbia v. Heller, 2008. [13] Adopting the
individualistic interpretation, SCOTUS took the individual right to self-defense as the basic
meaning of the Second Amendment, and by a 5-4 majority ruled that the Washington D.C. law
banning handguns and requiring trigger locks on all firearms in the home was unconstitutional
because it unreasonably infringed on the individual right to self-defense. However, SCOTUS
also adopted the statist interpretation by holding that the individual right to self-defense is not
absolute, in the sense that it is not a right to keep and bear any weapon in any manner and for any
purpose. SCOTUS ruled that it is reasonable for the governmenteither at a federal or state
levelto limit the kinds of weapons citizens are permitted. This ruling is consistent with the
majority decision in the 1939 SCOTUS case United States v Miller, which upheld the 1934
National Firearms Act (banning civilians from possessing automatic weapons and sawn-off
shotguns).[14] In the DC v Heller case SCOTUS also ruled that it was reasonable for the
government to regulate the carrying of concealed weapons; prohibit felons and mentally ill
people from possessing firearms; prohibit the carrying of firearms in schools and government
buildings; regulate the sale of firearms; and, prohibit the possession and carrying of dangerous
and unusual weapons.

Bringing both interpretations of the Second Amendment together allows us to argue that
citizens have the right to keep and bear arms for self-defense, but the government has the
authority and duty to regulate how firearms are used, transported, sold, and stored, and which
categories of people can legitimately be prevented from owning firearms (e.g. felons, children,
and people suffering from mental health problems). This compromise position allows the
individual right to self-defense to be respected for law-abiding citizens while admitting some
degree of gun control.

Clearly, some kind of background check is required to ensure that criminals, minors, and
mentally ill people are unable to purchase firearms, either in gun shops or online, and it is both
the duty and responsibility of the government (at federal and state levels) as well as licensed gun
dealers to make sure that these background checks are performed correctly, efficiently, and in a
timely manner (so as not to unduly hinder a law abiding citizens right to bear arms for self-
defense). Background checks should be universal and the federal government should impose
minimum requirements for firearm ownership (i.e. 18 years or older, no outstanding warrants for
arrest, and no court imposed restraints due to mental health concerns) and state governments can
impose 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 penalties
for people involved in acts of illegal arms trafficking. All of these measures are reasonable and
there 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. Obviously
people should not be prevented from passing on firearms that are family heirlooms. Private
transfers 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 lead
to the creation of a national registry which could be used by a future government to seize
firearms. This concern should be addressed. It is also the case that governments have shown
themselves to be not very good at protecting the data they collect. If criminal organizations
gained access to a national registry, they could use it to steal firearms. Likewise, foreign
terrorists or covert agents could use such information to gain weapons. It is possible that a
national registry could be a resource used by foreign governments to create a Fifth Column
within America. Any system of universal background checks should not involve the creation of a
national registry. We also need to reflect on how mental illness has been used in the past as a
political tool by governments to oppress political dissenters and opponents, as well as a tool to
control women, minorities, religious sects, and people who did not fit in with the norms of
society, as decreed by a powerful minority or politicians. Any system of universal background
checks cannot allow mental illness to be used as a political tool by which people can be
denied their constitutional rights. Before any person can be denied their right to bear arms on the
grounds of mental illness, this prohibition needs to be determined by a court as the result of
violent crimes that person actually committed. People should not be denied their rights on the
grounds of suspicion or prejudice on the part of government agents or police. Due process must
be respected and the person should have the right of appeal. The fact that someone has sought
help and treatment from mental health professionals should also not be used against them to
remove their rights if they have not committed any violent crimes. To do so is not only a
violation of due process and their constitutional rights, but it is likely to result in people not
seeking help and more mentally ill people slipping under the radar.

Furthermore, bringing both the individualistic and statist interpretations together implies that
firearm owning citizens also should have a legal responsibility to prevent other people
(especially their children) from gaining access to their firearms, which means that firearms
should be safely and properly transported and stored, and gun owners should be held
accountable for the irresponsible care and use of firearms. Gun control is the responsibility and
duty of both the government and the citizenry who chose to exercise their right to bear arms for
the purpose of self-defense. How the government exercises its responsibilities and duties should
be decided by the citizenry through their representatives, petitioning, and the ballot boxif
government truly has the consent of the governedand each gun owning citizen has a duty and
responsibility to his or her fellow citizens to obey the law. In my view, irresponsible gun
owners should at least lose their right to bear arms and possibly face severe penalties (including
the possibility of serving long prison sentences) providing that due process and their
constitutional 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 is
no justification for continuing to deny the rights of people who have completed their prison
sentences and terms of probation or parole.

If we recognize and accept this shared responsibility and duty, we have already started to go
beyond the compromise position set down by SCOTUS, as well as beyond either the
individualistic and statist interpretations taken separately. Recognizing this affords us the
opportunity to promote a positive and substantive democratic interpretation of the Second
Amendment that moves beyond both the statist and individualistic interpretations. It moves
beyond limiting the debate to whether citizens should have the unrestricted right to protect
themselves or whether this is the exclusive responsibility of agents of the government. It moves
us 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 to
see where it leads us, and, as I said at the very outset, such debates are essential for the
continuance of the American experiment in self-governance. The next step in this line of
reasoning requires that we take a good look at the militia clause of the Second Amendment in
order to develop a positive and substantive democratic interpretation of its meaning and
purpose.

Both the individualistic and statist interpretations tend to consider the militia clause A
well regulated militia being necessary to the security of a free State,as being an antiquated
and subordinate clause of the Second Amendment, which acts as a preamble that does not limit
the scope of the main clausethe right of the people to keep and bear arms shall not be
infringed.even though the government can regulate and limit this right in relation to certain
categories of people and which arms they can bear. The compromise position has modified the
second clause of the Second Amendment to the right of some people to keep and bear some
arms shall not be infringed unreasonably. Should this compromise position be considered
the final word on the Second Amendment? Should the debates only be limited to the details of
what infringed unreasonably means?Limited to debates about whether assault rifles should
be banned and whether magazine capacity should be limited? Or do we need to take the militia
clause 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 of
the obsolescence of the Second Amendment. They argue that it should be repealed. According to
advocates 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 Second
Amendment and individual liberty. Far from being the final word, I shall argue that both
interpretations and the compromise position are reactionary and shallow interpretations that
fail to encompass the purpose of the Second Amendment as protecting the democratic means by
which the people can preserve their freedom from tyrannical government through collective
action. The Framers already took the right to self-defense and hunting as givens. There would
have not been any need to specify these rights in the Constitution. They specified the Second
Amendment 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 and
balance on the power of government as is the First Amendment protection of freedom of
association, political speech, and the right to petition government. To those opponents of the
Second Amendment who argue that the Framers had swords and muskets in mind when they put
ink to parchment, I would ask: Given that the Framers could not have imagined cinematic
photography, computers, or the Internet, does this mean that the First Amendment does not apply
to cinema or opinions expressed on web pages? Does this mean that the Fourth Amendment does
not apply to your computer and emails? To the advocates of the unrestricted individualistic
interpretation, I would ask: if the Framers did not intend government to regulate the right to bear
arms, why did they give Congress the power to regulate and organize militias in the
Constitution?

Lets ask the following question: what would it mean if the militia clause was taken to be the
main clause of the Second Amendment rather than a preamble or subordinate clause? What does
the militia clause mean in the context of the Constitution? Lets take a look at how the word
militia is used in the Constitution. As well as appearing in the Second Amendment, the word
appears 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 longer
term than two years;

To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections
and repel invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such part of
them as many be employed in the service of the United States, reserving to the States
respectively, the appointment of officers, and the authority of training the Militia according to the
discipline 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 of
the 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 a
presentment or indictment of a grand jury, except in cases arising in land or naval forces, or in
the militia, when in actual service in time of war or public danger;

The Constitution couldnt be clearer. It explicitly empowers Congress and the President
respectfully to organize, discipline, and command the militias of the several states, when called
into service during invasion or insurrection. This clearly gives two branches of government
responsibility for organizing the militia as military units during wars or times of public danger. It
is also quite clear that during peacetime the militias should be under the command of their
respective state legislature and governor, giving state government the responsibility for
organizing and training the state militia. The Constitution gives government at both federal and
state 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 1903
Militia Act, the militia consists of the state based and organized National Guard of the various
states (distinct from the National Guard of the United States, which is a federally controlled
reserve military force) and the Naval Militia. The US Code Title 10, Sec. 311 313, defines the
militia of the United States as consisting of all able-bodied males at least 17 years old and under
45 years old who are or intend to become citizens of the United States, and all female citizens of
the 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 has
already 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 departure
from which we can develop a positive and substantive democratic understanding of the Second
Amendment and its purpose.

First, any consistent democratic position must reject any chauvinistic inequality between men
and women. The definition of militia must apply equally to men and women. In other words, it
must apply to the whole adult population regardless of gender. By defining the militia as the
whole adult population regardless of gender, this would mean that we can bring both clauses of
the 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. This
coercive imposition by the government upon the people has no basis in the Constitution and
should be opposed as an illegal act of tyranny. But, wait. Lets not get ahead of ourselves. Why
is the draft unconstitutional?

The Second Amendment defines a right, not an obligation to bear arms. The draft should be
prohibited by the Thirteenth Amendment as a form of involuntary service.

Neither slavery nor involuntary service, except as a punishment for a crime whereof the party
shall have been duly convicted, shall exist within the United States, or any other place subject to
their jurisdiction.

The Fourteen Amendment holds that all American citizens should be treated with due process
and receive equal protection under the law, regardless of race (or gender, I would add), and
there 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 the
Fourteenth Amendment. Participation in the militia or the armed forces must be voluntary and
any 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 to
contribute to the defense of the rights and honor of the nation, as the result of a war declared by
the 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 was
unconstitutional and, arguably, was yet another example of judicial activism and legislating from
the benchconfirming that SCOTUS is a despotic branch of government, as Thomas Jefferson
termed it in 1804.[16] Congress failed in its duty to abide by the Constitution and either impeach
SCOTUS or overrule it for exceeding its authority. This ruling was a coup detat over the
sovereignty of the people and the legitimacy of the government, which should remain constrained
by the consent of the governed in accordance with the Constitution. Of course, Congresss
inaction should be unsurprising, given that it had already unconstitutionally granted the
government 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 under
the 1917 Espionage Act and the 1918 Sedition Act. Nor should we be surprised by the lack of
any 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 1917
Espionage 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 say
anything disloyal, profane, or abusive about the government, the flag, and the armed forces.
Despite all of Wilsons pretensions to be progressive and democratic, the Wilson
Administration, with the support of Congress, SCOTUS, and the press, took America down the
path towards tyrannical government, militarism, and fascism.[18] Eugene Debs (union leader
and Socialist Party presidential candidate in 1904, 1908, and 1912) was sentenced to ten years
in prison for obstructing recruiting by making an anti-war speech.[19] When suffragette leader
Alice Paul went on hunger strike, after she had organized a picket of the White House and the
women were subsequently arrested, imprisoned, and beaten, Wilson tried (and failed) to get her
incarcerated indefinitely in a lunatic asylum.[20] In 1917, the anarchists Emma Goldman and
Alexander 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 served
as an ambulance driver during the war and was held in a military detention camp for over three
years for saying that he felt no hatred for the Germans. The Sedition Act was repealed by
Congress in 1921.

Furthermore, in 1948, Congress exceeded even the bounds of this unconstitutional SCOTUS
ruling, which only legitimated the draft when Congress had declared war. Congress has not
declared war since 1941. Yet Congress gave the Executive the unconstitutional authority to draft
American citizens into the Korean and Vietnam police actions. The draft during the Second
World 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 the
Selective Service Act, which made all males between the ages of 19 to 26 eligible to being
drafted for 21 months, followed by a commitment to serve either 12 months of active duty or 36
months in the reserves. In 1951, despite not having formally declared war, Congress passed the
Universal 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, but
granted exemptions to students.

This illegitimate government action was further expanded by President Johnsons signing of
an executive order (Executive Order 11241, August 26
th
, 1965) that rescinded the exemption for
married men without children, as granted by President Kennedy (Executive Order 11119,
September 10
th
, 1963). These executive orders bypassed Congress altogether. They were
revoked by President Reagan (Executive Order 12553, February 25
th
, 1986).

In 1967, Congress passed the Military Selective Service Act, which expanded the ages of
draft eligibility to the ages of 18 to 35. Student exemptions were limited to the completion of a
four year degree or their 24
th
birthday, whichever came first. This was used to draft American
citizens to fight in the undeclared war against Vietnam. In 1971, this act was amended to base
selection 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 could
elect for non-combative military service or alternate community service. Unconstitutionally and
perversely, this compulsory service did not equate to involuntary service in the minds of the
congressmen who voted for this act, nor did it do so in the mind of President Nixon, who signed
it into law.

On January 27
th
, 1973, Secretary of Defense Melvin Laird announced the end of the draft and
the creation of an all-volunteer armed forces. The registration requirements were ended by
President Ford on March 29
th
, 1973 (Proclamation 4360, Terminating Registration Procedures
Under Military Selective Service Act).

While the Constitution clearly empowers Congress to raise an army and navy, and to organize
the militia, there is no constitutional authority to draft American citizens into the armed forces or
the militia. The Second Amendment refers to the security of a free State, which means that it
refers to right to keep and bears arms as being a condition for the defense of ones state, as a
free State. At most, we could argue that citizens who choose to exercise their right to keep and
bear arms become obliged by the Second Amendment to submit to the authority of state and
federal government to defend their state in times of war, invasion, or insurrection. By
identifying the militia as the people when armed, it would seem constitutional to go this far, but
only this far. In which case, it follows that every armed adult citizen has no obligation
whatsoever to submit to a draft to fight in undeclared wars or any action that does not directly
require 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 strictly
unconstitutional 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 the
right to bear arms, and the government must respect pacifism, personal freedom, and various
religious beliefs that prohibit violence of any kind, even in self-defense. We can argue with
certainty that the Constitution does not compel those people who had not chosen to keep and bear
arms 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 burden
themselves with such a duty. Arguably, if citizens have any supreme and noble duty, it is the
duty of the peopleacting as the militia, conscientious objectors, or protestorsto rise up and
oppose any government that attempts to impose the draft or any other kind of involuntary
service (i.e. slavery), or is attempting a coup detat over their sovereignty and constitutionally
limited 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 be
debarred the use of arms.[22] According to Jefferson, the possibility of freedom is dependent
upon the ability of the people to thwart those who would enslave them. It is a condition of being
a free man that one has the means to defend ones freedom from tyrants and invaders. As George
Mason wrote in 1788, disarming the people is the best means to enslave them, and, in a free
State, the militia and the people are one and the same.[23] The term militia refers, in the
fullest reading of the Second Amendment, to the right of the people to defend themselvesas the
peopleand this right is necessary for the existence of a free State. It was for this reason that
Patrick 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 Second
Amendment is for the people to maintain the means to defend themselves against tyrannical
government, citizens who choose to bear arms and partake in the militia are not only obliged to
obey their government if it acts in accordance with the Constitution and with the consent of the
governed, but they have a duty to resist it if it does not.

However, rather than imply any duty or obligation whatsoever, the Second Amendment refers
to the right to keep and bear arms as being a condition for the continued liberty of the people, but
by choosing to exercise this right, the people become the militia necessary to the security of a
free State. Read in this way, the Second Amendment is a statement of fact about what is
required 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 are
not only one and the same, but they are collective terms. The people when armedacting
collectively as the militiaare inherently defensive of their own states, communities, and
neighborhoods against aggressors. Forming themselves into the militia is the means by which the
people defend themselvesof themselves, by themselves, and for themselves. This is an
inherently democratic condition for liberty of the people within their own states that has nothing
to do with being compelled by the draft to fight in the US Armed Forces against people in
foreign countries for natural resources, reasons of geopolitics, or on ideological grounds.

We can clearly see that this democratic interpretation opposes both the statist and
individualistic interpretations. Far from being an obsolete amendment, the Second Amendment
becomes conditional for the preservation of all other rights from tyrannical government. It
specifies the means by which the people when armedacting as the militiacan protect
themselves as a free people. Giving the government a monopoly over the means to commit
violence, surrenders the means by which the people can defend themselves as a free people
against tyranny or defend their state against a coup detat. It places the people at the mercy of the
government.

The statist downplaying of the militia clause has been part of the process by which the
balance of power has shifted from the people to the government. The result of the statist
interpretation is that it delegates responsibility for the protection of liberty from the citizenry to
the agents of the government, such as law enforcement officers and the military. The protection
of the people is no longer the responsibility of the people, but is the responsibility of their
representatives 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 acting
with restraint than civilians. Not only is this nave, but it removes an essential check and balance
between the people and government. How can agents of the government be relied upon to protect
the people from the government itself? Should a government undergo a coup detat or become
tyrannical, the right to keep and bear arms provides the people with the means to rise up and
overthrow that government and restore constitutionally limited government, which governs with
the consent of the governed.

The statist interpretation is anti-democratic because it assumes that agents of the government
are more responsible than any other citizen and thereby can be trusted with weapons that cannot
be trusted to the citizenry in general. The statist interpretation denies fundamental and universal
human rights to self-defense and self-determination. It threatens to revert the people into being
subjects of the state, rather than citizens of a republic. Contrary to the statist interpretation, the
democratic interpretation demands that agents of the government must be considered as part of
the people and should not possess any rights or privileges that the people in general do not
possess.

The result of the individualist interpretation is that the right to bear arms is treated as an
individual right to bear arms for self-defense, sport, and any other lawful purpose, rather than a
right of the people when armedacting collectively as a militiato protect the freedom of the
people from invaders, insurrection, or tyrannical government. It is every man and woman for
themselves. This leaves the people weakened and disorganized. Hence, we need to note that the
word individual is not used in the Second Amendment. It does not discuss the right of the
individual citizen to keep and bear arms for personal self-defense, hunting, sport, or just because
they happen to like guns. As I have already said, in the eighteenth century, keeping weapons for
personal self-defense and hunting was taken for granted, just as it had been in England and many
other countries for centuries. The Second Amendment was written as a response to the War of
Independence 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 bear
arms is a means to this end, not an end in itself.

The individualist interpretation is anti-democratic because assumes that self-defense is only
an individual right, rather than a collective responsibility of the people, and leaves the people
vulnerable and disorganized against the possibility of tyrannical government. It is short sighted
to treat the militia clause as if it is an antiquated preamble that should not be taken as limiting
individual citizens rights to possess firearms. When we understand the militia clause in terms of
the democratic interpretation, we can understand how the responsibility for the defense of a
free 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 everyone
for themselves anarchy and the right to buy guns and shoot animals in the woods. In a
democracy, the people and a free State are one and the same, with the militia being the people
collectively organized to be capable of defending themselves from invaders, insurrection, and
tyrannical government, and thereby preserving themselves as the collective sovereigns of a free
State. This is a fundamental condition for self-governance by the people, who collectively
come to the aid of their government in times of war or public danger, but are not slavishly
obedient to a militaristic police-state. The Second Amendment should be understood as
informing us of the means by which the people can protect all their other rights as a free people
and 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 the
Enlightenment tradition that inspired the Founders when writing and signing the Declaration of
Independence 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. They
were taken to be natural rights, bestowed by Natures God, to ALL human beings. Otherwise
there would be no rights at all, only privileges and powers. It was on this basis that the dictates
and impositions of the British monarchy were taken to be usurpations of fundamental human
rights and therefore illegitimate. Government by consent of the governed was taken to be a basic
condition for human freedom, wherein government constituted an agreement between human
beings to respect and preserve the rights of each other, thereby protecting their own; it is not
some nationalistic form unique to the tastes and fancies of Americans. The Articles of the
Constitution were written as a series of compromises by which human beings could have a form
of government that was limited and balanced, in order to best preserve human rights and freedom
from the caprice of despots. The Bill of Rights enumerates universal human rights, the rights of
the people and persons; it does not list the privileges of Americans (the term citizen is only
used in the Articles as a qualification for public office and is not used in any of the Amendments
until the Eleventh Amendment). It is in this respect that the Constitution can be viewed as
presenting us with an ideal form of government for all human beings, but it is an ideal that grew
out of the British understanding of Enlightenment tradition, as best expressed in the philosophy
of 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, which
are 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 aware
of the importance of the possessing the means to fight for the peoples freedom from tyrannical
government 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 to
institute new Government, laying its foundations on such principles and organizing its powers in
such form, as to them shall seem most likely to effect their Safety and Happiness when a long
train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce
them 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 John
Hancock signed the Declaration of Independence, on the 4
th
of July, 1776. But, alas, as the
subsequent seven years of war showed, sometimes securing liberty comes only through the
successful armed struggle of a people against the armed forces of a violent and determined
oppressor. The Bill of Rights shows that in the eighteenth century they were aware that limits on
governmental power were necessary to preserve the liberty of the people, but that these rights
could 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, even
during his presidency in the early nineteenth century, Jefferson remained aware of the
importance 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 is
their best security. It is, therefore, incumbent on us, at every meeting to revise the conditions of
the militia, and to ask ourselves if it is prepared to repel a powerful enemy at every point of our
territories exposed to invasion.[26]

By seeing how the rights to self-defense and self-determination are related in the Declaration
of Independence, we can see that the ideals that found the Articles and Bill of Rights do not
imply a free-for-all state of anarchy. Laws, reason, and personal responsibility are important
foundations for citizenship and respecting the rights of others. Obviously voluntary membership
in the militia and exercising the right to bear arms would not be available to criminals, violent
lunatics, and childrenthereby satisfying important conditions for public safetybut what kinds
of limits should be placed on the regulations established by legitimate government? For
example, should there be restrictions on the kinds of firearms that the people are allowed to
possess?

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 not
limited to the establishment of the regulation of categories of people who are excluded from the
militia, such as criminals, mentally ill people, and children, or the establishment of categories of
weapons permitted for civilian use. According to the Oxford English Dictionary, in the
eighteenth century, the word regulated meant properly maintained and working when used to
describe the condition of a watch or instrument. The term well-regulated meant properly
arranged and organized to achieve some function. Taking this meaning of well-regulated into
account, 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 makes
it a condition for the security of a free State that the people are properly trained and
disciplined in how to keep and bear arms. It should be a condition of the right to keep and bear
arms that the possessor has learned how to properly use, care for, and store them. This is brings
the 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 bear
arms responsibly and safely, demonstrating skill and knowledge, and proving that they are
capable of being a responsible member of a well-regulated militia. The demonstration of
proper training and competence should be a prerequisite for the right to bear arms, and the
imposition of this prerequisite is not only consistent with the militia clause, but it a condition for
the meaning of the Second Amendment as a statement of the means by which the people can
preserve the security of a free State.

Firearms are dangerous. Without proper training, gun users are a threat to bystanders, as well
as themselves. Proper training reduces the chances of accidents or innocent bystanders being
shot. It also reduces the chances that people will panic, over-react, and shoot someone they
perceive as a threat, when in fact that person was not. Violent madmen are often mentally
disorganized and incapable of discipline and would be exposed as such through the rigors of
proper training. It is therefore in the public interest that gun users are properly trained in how to
use, carry, and store firearms as a condition for ownership. It is reasonable for society to
prohibit untrained, ill disciplined and inexperienced people from owning and using dangerous
weaponry. This is not much different than the restriction that a person must be able to pass a test
to 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 would
take into account concerns about preventing criminals, homicidal lunatics, and children from
legally obtaining firearms, alongside concerns about the perils of excesses of government and
the centralized accumulation of information about citizens. The federal government could impose
a minimum set of standards required for firearm training, transportation, and storage on any
person who wished to purchase and own any firearm, with higher standards required for more
dangerous weapons, and the state governments would be able to impose their own standards in
addition, 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 people
should not be permitted to purchase and possess firearms until they can demonstrate in a test to a
state licensed firearms instructor that they have the skill, knowledge, and discipline to meet both
federal and state requirements. Private organizations like the National Rifle Association could
act as important watchdogs over these standards and how they were being applied, but instead of
merely opposing regulation, such organizations could make sure that regulation improved the
level and quality of training and knowledge among gun owners, leading to higher levels of skill
and public safety. They could help make sure that the militia was well-regulated. Under their
Article IV power, state governments would issue firearm licenses within their own state, and
these would be recognized by all other states. There would not be any national firearm registry
and the records of state licenses would be kept only by states. These records would be
accessible by federal agencies and law enforcement in other states, just as driving licenses are
today, but federal agencies would not be permitted to keep records, except in cases of federally
issued licenses. Prior to obtaining a state license to purchase and possess a specific category or
categories of firearms and ammunition, the applicant would need to pass a course of training and
a test, and the issuing state authority would check age and run a background check via a federal
database to determine whether the person was a wanted criminal, under probation or parole, or
denied ownership of firearms by a court order in any state. This would not comprise a national
registry of gun owners. It would be a national list of the people who were not permitted to own
firearms. Additional background checks and waiting times could be imposed by the states, as
they do today. If these requirements were unduly restrictive, the people have the remedies of the
Supreme Court and the ballot box. In this way, the states would take responsibility for the
regulation of the militia; the federal government would enforce the requirement the states were
maintaining at least a minimum set of training, storage, and transportation standards, without the
need for a national registry. Licensed firearms dealers would verify the state license and run an
instant federal background check (to see if the person was not permitted a firearm) at the time of
purchase of a weapon or ammunition, and private sales would require state approved transfers
of ownership (again requiring license verification and an instant background check). No federal
registration of any firearm would be required, but states could impose their own registration
requirements.

This understanding of well-regulated militia fits in with the democratic interpretation and
satisfies concerns regarding background checks, governmental overreach, public safety, and
personal responsibility.

What of the question of the limits of the types of firearms available to the militia? It is
ridiculous to claim that the authors of the Second Amendment had in mind muskets and single
shot pistols and therefore these are the only kinds of firearms the people should have a right to
bear. This would be akin to claiming that the First Amendment only covered spoken free speech
or that written on paper with ink, rather than radio, television, or the Internet. If the purpose of
the Second Amendment is to protect the right of the people to possess the means to protect
themselves from invaders, criminals, and tyrants, then technological innovation in the means of
violence 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 would
be incapable of preserving a free State from despots, invaders, and criminals. Does this mean
there 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 can
argue 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, and
machine guns, it would also be contrary to the democratic interpretation to prohibit the people
from possessing automatic handguns, assault rifles, and machine guns, while allowing the police
and military to use these, if people were capable of demonstrating that they were sufficiently
skilled, knowledgeable, and responsible to bear them. If the only things that qualify a police
officer or soldier to use automatic weapons are training and discipline, then any person who can
demonstrate the same level of training and discipline should be able to possess the same kind
of weapons as their professional counterparts. Providing that a person is a law-abiding adult, the
demonstration of adequate training, knowledge, and skillalongside proper storage and
transportation facilitiesshould be the only restrictions upon firearm possession.

If ones neighbors constituted a well-regulated militia, skilled in the proper use of their
firearms and trained in rapid response, and could be called upon by using communications or
panic buttons, then there is good reason to believe that crime would be reduced. It is reasonable
to believe that the existence of such a militia would be able to defend the country from an
invading army, an insurrection, or tyrannical government, and would exercise the right to bear
arms responsibly. In this way, the universal rights to self-defense and self-determination would
be preserved and respected through organized, collective action.

But, you may ask, what of heavier weaponry? The same argument applies. Providing that
people are properly trained and disciplined in their use, care, and storage, there is no good
reason to prevent law-abiding adults from possessing weapons such as bazookas, grenade
launchers, anti-tank rocket launchers, flamethrowers, etc. Such weapons would be very useful in
the event of having to defend against an invading army or prevent a coup detat. It is also
reasonable for trained and disciplined citizens to possess high explosives and skilled in
sabotage and guerrilla warfare fighting. It certainly is highly questionable that private security
firms (including mercenaries by any other name) are permitted a range of weaponry unavailable
to the citizenry in general. But what about the possession of weapons such as tanks or fighter
aircraft, surely civilians should be banned from owning these? Again, the same argument
applies. 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 requirement
for a higher level of training and discipline, as well the expense of maintaining tanks and fighter
aircraft and the need for their proper storage, these would be used only within the state
organized militia anyway, such as the National Guard, owned collectively.

Surely there are limits! We cannot let a militia, no matter how well-regulated have access
to 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 to
assume that military training conveys a deeper moral character than militia training would. All
other things being equal, there is not any difference between well-trained and disciplined
military personnel and well-trained and disciplined citizen militia. If any weapon is too
dangerous to be possessed by a well-trained and disciplined citizenry, then it is also too
dangerous to be possessed by well-trained and disciplined professional military. Given that a
civilian government is supposedly representative of the people and answerable to the people, if
civilians cannot be trusted with any weapon nor can the government and its agents. If we
consider it madness to have the nuclear arsenal under the watch of a well-trained and
disciplined volunteer militia, even with all the checks and safeguards, including oversight and
control by Congress and the President of the United States, then in what way is it sane to have
such weapons under the control of the military, which is supposedly checked by the same
Congress and President? It is not. Such weapons should be banned outright. No government
should be permitted any weapons denied to the people and all nuclear, chemical, and biological
weapons should be internationally outlawed and destroyed.[27]

Furthermore, we can even question whether the existence of a standing army is compatible
with the spirit of individual liberty envisioned by some of the Founders. Jefferson and Paine, for
example, considered a standing arming to be threat to the liberty of the people because it secures
an 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 every
kingdom in Europe.[28] On their argument, the common defense of the union should be the
responsibility of the militias, trained and organized by the several states, until such time that they
are called into service by Congress, upon declaring war against an invader or should an
insurrection occur. Only thereafter should an army be raised by Congress and placed under the
command of the President, acting as Commander-in-Chief. Even the 1973 War Powers Act only
allows the President to deploy the US Armed Forces for only up to 60 days in the event of a
national 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 day
limit. Again, there are no legitimate constitutional or legal grounds for using US Armed Forces
to invade other countries, on whatever pretext, and claiming it to be an act of defense or in the
national interest. Ultimately, in a democracy, all the defensive functions of the military would be
performed by a well-regulated militia and would only be defensive functions.

The 1934 National Firearms Act should be repealed and the standing army should be
gradually demobilized, as and when the people are trained and equipped into a well regulated
militia capable of taking over the common defense of the union, with the current military
personnel transitioned into instructors and trainers for the citizen militia.

Could the USA be defended by the people acting as a militia? History provides us with
numerous examples of militias being able to defend their national territory against
technologically superior armed forces. Consider the example of the American Revolution and
War 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, the
Haitian slave revolt, the Boer War in South Africa, Nestor Makhno and the Ukrainian peasant
militias against the German army and then the Bolsheviks, the Russian workers and peasant
militias 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 German
Occupation, Tito and the Yugoslav partisans against the Nazi German army, Mao and the
Chinese Red Army against the Japanese army and the Nationalist forces, the Cuban
revolutionaries, the peasant resistance during the Vietnam War, and the militias in Iraq and
Afghanistan. If the people were organized into a well-regulated militia in America, with the
citizenry of every state, city, and town armed, organized, trained, and prepared to fight an
invading army, it would be impossible for any invader to invade and occupy the USA. Even the
largest army in the world, even if equipped with better weapons, would not be able to achieve
this. The vastness of the USA, combined with a well-armed and determined citizenry, would
make the campaign doomed from the outset. Just imagine the problems facing a military force
when invading a country the size of the United States of America, populated by 300 to 400
million 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 idea
invokes images of thugs driving around in trucks, terrorizing their town with machine guns, or
drunken young men taking their militia-issued stinger missile launchers down to the freeway to
play 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 reasonably
concerned 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 the
Second Amendment because they hold that society is safer if citizens are not permitted military
weapons, such as machine guns and rocket launchers, or explosives. There are good statist
arguments for the strict control of such weapons. This is why the compromise position is
appealing and many Americans adopt a statist interpretation and think that the national defense is
best secured by professional armed forces, while holding to an individualistic interpretation
regarding 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 Apache
helicopter gunship, then you advocate some level of gun control. If you think it reasonable for the
armed forces to have such weapons, then you hold to a statist interpretation. After that, it is a
matter of degrees. Where the line should be drawn is a matter of debate and opinion about what
good legislation should be and what well-regulated should mean. One person may think that
the line should be drawn at rocket and grenade launchers, another at automatic weapons and
assault rifles. The decision as to where that line should be drawn is the job of Congress and the
state 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 rules
and laws) are necessary to prevent irresponsible and violent individuals from gaining access to
powerful weapons. These people are not gun grabbers. They are citizens with genuine desires
to live in a well-regulated society, without fear of being gunned down in the street or their
children being murdered in school by some lunatic with an assault rifle. Freedom also involves
the freedom from arbitrary violence and fear. People are not gun grabbers for wanting to
regulate the right to bear arms and keep bazookas, rocket launchers, and machine guns, assault
rifles, and even handguns out of the hands of violent madmen, especially in a society for which
the 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 to
convince their fellow Americans that they strongly advocate proper training and responsible gun
ownership, 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 the
ideals 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 the
light of horrific and pointless acts of gun violence, these will only deal with the symptoms and
not the causes of America's deeper societal problems. Americans need to take a good hard look
at the cultural values that are being promoted in the media and schools, which celebrate violence
as glamorous, glibly represent the avoidance of personal responsibility as being cool, treat
learning and reflection as geeky and weak, idolize bullies and whores, and have turned
corruption and greed into societal norms. The political and legal problems in America come
down to the question of how the values of political life have become reduced to those of
opportunism, personal advancement, and enrichment at the expense of other people. To be
honorable and decent is to be a sucker. The cultural values of America politics have become the
values of the Mafiosi.
While it would be foolish to blame Hollywood and television for all of society's ills and the
existence of mad gunmen, we would do well to look carefully at how the media celebrates
violence and greed as manly and sexy, and how it denigrates intelligence and cooperation as
wimpy and boring. We need to look at how violence is glamorized and presented as heroic in
movies and on television. We need to look at how media and politicians profit from promoting
violence, 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 Americans
from violent madmen, but it will not save Americans from organized and violent criminals, and
it will not save Americans from their own societys failings. Such a ban would be simply
sweeping America's problems under the carpet and is a knee-jerk reaction to horrible and evil
acts.

What is needed in America is a deep and honest look at American society and how people
understand the concepts of citizenship and government. The democratic interpretation of the
Second Amendment itself requires that people are already predisposed to live democratically
to organize themselves collectively and take responsibility for the liberty and protection of each
other. The challenge of the American Left still remains that of education and persuasion of
Americans to raise their political and social consciousness, to cooperate with each other, to
show solidarity with their fellow human beings, and live up to their democratic potential.

Through education, political participation, and cooperative action, once the people realize
their potential to become a self-governing society and organize their social and economic
conditions democratically, for the benefit of everyone rather than a few, then the people, capable
of defending themselves, will be able to realize their revolutionary potential as the torch-bearers
of the American Revolution, the values and ideals of the Enlightenment, and the emancipation of
humanity from tyranny and oppression.

The argument of this essay is that Americans should adopt the democratic interpretation of the
Second Amendment, as they should adopt a democratic understanding and practice of citizenship
and government. The responsibility for the protection and governance of society, as a free
society, must be divided throughout that society as a collective responsibilityit must be a
responsibility of the people, in practice as well as in principle, as a continuation of the
experiment in self-governance. The people must do it for themselves. If the existence of a
standing army threatens the very possibility of a democracy, by providing the government with
an imbalance of power over the people, then, in a democracy, it would be the responsibility of
the people to arm, train, and organize themselves, so as to defend themselves and a their society
effectively, and to demand that their government demobilizes the military and leave it to the
citizenry 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 free
people, as being a condition for the possibility of the existence of democracy. It is an act of
solidarity and collective self-determination. In a democracy, the responsibility for the protection
of life, liberty, and property is the responsibility of all the people; to delegate this responsibility
to agents of the government is to surrender liberty because it gives the government the monopoly
over violence, which gives it a monopoly over power, and ultimately gives it power over life
and property as well. The balance of power between government and the people cannot be
maintained 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 the
consent 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 best
suited 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=459
In a 1789 letter to Madison, Jefferson argued that people have no right to impose laws on future generations. Imposing unalterable
laws on future generations or being unquestioning loyal to the laws of the past would suppose that the earth belongs to the dead
and not the living. An online copy of this letter can be found at
From Revolution to Reconstruction http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl81.htm
As he also wrote in his 1824 letter to John Cartwright: A generation may bind itself as long as its majority continues in life; when
that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held and may change
their 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, Debunking
Glenn Beck: How to Save America from Media Pundits and Propagandists (Praeger, 2011)
[4] For example, see Michael Moores 2002 documentary Bowling for Columbine.
[5] The Childrens 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 16
th
, 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: The
Complete Correspondence Between Thomas Jefferson and Abigail and John Adams (Chapel Hill, NC: The University of
North 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 Public
Information to develop propaganda campaigns to manipulate the American population to support the war effort and to vilify
pacifists and opponents. See Occupy Media! Propaganda and the Free Press.
[19] Ernest Freeberg, Democracys Prisoner: Eugene V. Debs, the Great War, and the Right to Dissent (Harvard
University Press, 2008)
[20] Katherine H. Adams Alice Paul and the American Suffrage Campaign (University of Illinois Press, 2007)
[21] Howard Zinn, A Peoples 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 to
liberty, and therefore ought to be avoided. Within Masons 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 14
th
, 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. The
discussion of this topic is well beyond the scope of this essay. However, perhaps a first step that the United States government
could take would be to assert unilaterally the doctrine that the pre-emptive use of nuclear, biological, or chemical weapons would
be illegal and a war crime, thus making it illegal for any military personnel to give or obey any order to participate in an attack
using 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 time
as 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), first
published 1787.