A Libertarian perspective on the 2nd Amendment
For my first blog post on the 2nd amendment I wanted to discuss the basics of pro-2nd amendment argument and the underpinnings of that argument. In order to keep this to a reasonable length, I won’t be going to deep into any particular aspect of the argument, and there is a lot to cover. The totality of the evidence clearly shows that the Framers of the Constitution were of a mind that closely dovetails with, if not outright matches, the Libertarian perspective on the 2nd Amendment, as well as the rest of the Bill of Rights.
The tl:dr is this: The 2nd amendment enumerates a natural, individual right to buy, sell, possess, transport, train with, and carry weapons, specifically firearms, specifically for the purpose of defense, both against deadly criminal threats as well as a tyrannical government, as well as any other lawful uses therewith.
We reach this conclusion based upon the amendment as it is written, as well as the supporting documents of the contemporaneous writings of the Framers of the Constitution. This has been confirmed by a small number of US Supreme Court decisions.
The amendment is written: “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”. Everything up to “the right of the people…” is a pre-ambulatory, or subordinate phrase. Further, the primary phrase, is referring to a right of the people, I.e. individuals. The word militia was understood to mean every able-bodied male (side note: in over 200 years it has not changed that military service is never compulsory for women) between the ages of 17 and 45. In a militia, the individual was required to supply their own equipment, including their firearm, which, again indicates that the Framers were enumerating a right for individuals.
Finally, the phrase “well-regulated”, with respect at the time to the military, meant similarly equipped, based on role, with each other and any other units they may work with. This indicates that individuals, who, regardless of their desire or intention, are legally considered part of the militia if they meet certain criteria (US Code Title 10, Subsection A, part 1, Chapter 12, § 246), have a right to own firearms that are equivalent to what the military is issued. Although we are referring to the militia in order to determine that military issued firearms, and certainly military-style firearms (whatever that means), the Framers understood, and enshrined in this amendment, the natural individual right, for ALL individuals, to keep and bear arms.
Typically, advocates of gun control, will hear or read the above and they will ignore that the argument has, thus far, been based on grammar and common understanding of the meaning of words at the time the document was written, and claim that I, or anyone else, could not possibly know the minds of men who lived and died over 200 years ago. However, they forget that the Constitution and its amendments were far from the only documents the Framers had written.
In Federalist #46, James Madison specifically discusses that state and local militias and a limit on the size of any federal standing army would be the best checks against an over-reaching federal government using the standing army to oppress the people, as King George III had done to the Colonies. Furthermore, many more of the Federalist Papers, as well as the Anti-Federalist Papers (written by those concerned that the Constitution may give the Federal Government too much power over the states), indicate that the Framers were acutely aware and concerned by the possibility of an over-reaching Federal government, and the Amendments to the Constitution enshrined in the Bill of Rights were specifically designed to assuage the concerns of the Anti-Federalists by enumerating the things that the government may not do.
The 9th Amendment even goes so far as to reserve all other rights not stated in the other Amendments to the people. With that context, the idea that the phrase “well-regulated” was intended to give the Federal Government the power to regulate (which in the modern context is literally infringement by another name), does not hold up to scrutiny.
Others may make the argument that the Constitution, and, by extension, the amendments, are a “living document”. Simply put, this argument makes no sense. The Constitution is and was, for all practical purposes, a contract signed by the framers and ratified by the States. A contract does not change over time, unless that contract provides a process for that change, which the Constitution does with the Article 5 convention and the standard amendment process.
Otherwise, the text, and, by extension, the intent of the Framers, remain the law of the land in the language that it was written. If you doubt this, I invite you to enter into a legal contract to deliver a good or service to an entity, such as a government or a corporation, in exchange for payment of some kind. I further invite you to then provide something other than the designated deliverable and explain that the meaning had changed and what you provided is what this deliverable now means. Look at the true story that inspired the movie "The Dogs of War" for how that works out.
Finally, the US Supreme Court has delivered a few opinions on the 2nd Amendment (would be great if they took those cases more often). The most recent of which were Heller (which overturned the DC firearms ban) and McDonald (which overturned the Chicago firearms ban). However, many pro-2A folks avoid the Miller decision in 1939, which dealt with a violation of the National Firearms Act of 1934 via possession of a “sawed-off shotgun”.
Arguments over the NFA aside, the case, as Ben Shapiro recently pointed out, dealt with the specific type of gun in the individuals possession, instead of simply saying Miller was not in the militia or the military, and thus not allowed to possess a firearm at all, which the anti-gun lobby’s understanding of the 2nd amendment would suggest.
This really just scratches the surface of this argument.
The Montgomery County Libertarian Party Committee welcomes submissions from members and others that reflect Libertarian values and political positions. If you have such a point of view you’d I like to share with the world, let us know.