The Inerrant Existence of the Second Amendment

By Zach Foster

A recent interview with Supreme Court Justice Stephen Breyer left television spectators with the impression that the Second Amendment shouldn’t really exist, and that it was only hastily thrown into the Constitution by James Madison in order to get the document ratified by the states.  Breyer stated that Madison “was worried about [political] opponents who would think Congress would call up state militias and nationalize them.  ‘That can’t happen,’ said Madison.  ‘I’ve got to get this document ratified.’”  While Breyer’s statement certainly paints a very moving picture of Madison as a man who had to make a hasty command decision in order to ensure the survival of the nation, this picture is historically inaccurate.

Writer Ed Morrissey of Hot Air dot com made an excellent point refuting Breyer’s statement by pointing out essay # 46, authored by Madison, from the Federalist Papers.  In this essay, Madison makes key statements about the citizenry being armed.

The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

Breyer makes it seem as if those calling for the addition of the Second Amendment were simply being paranoid at the idea of the standing state militias being drafted into the federal army, and James Madison supposedly agreed with this idea was absurd.  However, Madison’s own words refute the idea that he was even remotely opposed to an armed citizenry.  He clearly was in favor of the “unorganized militia” of citizens bearing arms in order to oppose a tyrannical government.  Having just gotten over a brief stint called THE AMERICAN REVOLUTIONARY WAR, Madison and the majority of the former underground government were all too familiar with what it was to live in terror under an army unsympathetic to the rights of the citizenry.  Furthermore, since Americans had only recently severed themselves from military rule by an ambitious government, it seemed only possible and realistic that this new government could go equally awry as King George’s monarchy.

Breyer argued that the circumstances behind the passing of certain parts of the Constituiton need to be re-evaluated and possibly changed depending on their consistency with today’s standards.  Let these circumstances be re-evaluated now.  Have the state militias been called into federal service?  The answer is an astounding YES.  The standing militias of the various states, if not temporarily absorbed by the federal army, have been called to serve the nation during times of war.  For example, regiments of state militias were called to war, often far outside of their home states, during the War of 1812, the Mexican-American War, the Civil War, both World Wars, the Korean War, the Persian Gulf War, and the ongoing wars in Iraq and Afghanistan.  Yes, the state militias still exist—they evolved into what most Americans know as the National Guard.

Not only have the old-time militias and the modern National Guard been called into federal service, but they have even been completely absorbed by the federal armed forces.  California used to have an active and professional Naval Militia with its own Marines, which were absorbed by the Department of the Navy during World War I and never released back into state service.  What then, with the state militias fighting abroad, would have protected the citizenry from invasion other than the right to bear arms?

Luckily, over twenty states have established or maintained, since the beginning, back-up militias known as State Guards whose purpose lies in supplementing the strength of the National Guard and taking over local duties when the National Guard is abroad.  Some of the most professional State Guards are the Texas State Guard, the New York State Guard, and the California State Military Reserve.  However, the strength in numbers of these State Guards does not nearly match the per-capita numbers of the State Militias after the Militia Act of 1792 was passed.  How would 1,000 California soldiers adequately protect 38 million California civilians?  They could serve as a first (or last) line of defense in the event of an invasion, but how long could they last?  This also begs a follow-up question: what about the nearly thirty states that have no back-up for their local National Guard units? Seeing as how there is little or no reason for every gun-carrying citizen to spontaneously declare war on the U.S. government, perhaps an armed citizenry is an effective method of maintaining homeland security should the armed forces ever fail to perform their defense duties.

The above paragraph is one instance of re-evaluating post-Revolutionary War reasoning in the context of today’s circumstances.  Let us analyze another valid modern circumstance: the rise of violent crime.  Penn and Teller did an excellent episode of their show B.S.! covering the pros and cons of gun rights in America.  It is a known fact that the rate of violent crime has risen many times over during the last century.  Their research and interviews showed many instances of victims unable to defend themselves from violent crime due to not carrying their firearms in obedience to anti-gun legislation on the state or federal level.  Their findings also presented guns as a deterrent to violent crime.  One compelling find was that the vast majority of guns used in violent crimes were smuggled into the country and purchased from the black market, NOT from mainstream law-abiding gun stores.

The most impressive segment of Penn and Teller’s show was the interview of an active gang assassin, who volunteered to be interviewed on the condition that his name be withheld and his face blacked out.  The assassin described himself as an “OG for life” and completely unrepentant of the people he has harmed or killed in service to his gang.  He stated defiantly that he laughs at anti-gun legislation because it only takes guns away from law-abiding citizens, not from criminals, and it only makes it easier for them to be victimized by criminals like him.  He said that if the police were to take away his gun, he would laugh and just go get another one—no—two more.  This purpose of self defense only supports the case for the arming of the citizenry, even while re-evaluating the rationale of the Second Amendment’s passing in the context of modern circumstances.

However, in order to be fair in this argument, the topic of gun regulation must be entertained.  Should guns and gun ownership be registered and regulated?  Absolutely.  Guns are valuable property and property that have the power to (and are made with the purpose of) killing human beings.  These are things that law enforcement needs to be aware of.  Registration of this type of property is harmless, as government registration is applied to other kinds of property; law enforcement agencies need to know who owns what gun, just as the DMV needs to be aware of who owns what car, and the post office needs to know who lives where.  Light regulation is also harmless, such as the federal ban on assault weapons.  Does the average citizen need a machine gun to protect himself?  No.  Does the average American need a machine gun to protect himself and his family from either a tyrannical government or an invading army?  No.  A point-blank spray of automatic fire can be far less effective than a well-aimed shot.

For example, the Zapatista National Liberation Army in southeastern Mexico has for over two decades managed to maintain autonomy and hold off the truly oppressive government army of the Mexican party-state.  The Mexican Army has the equipment of a modern army while the Zapatistas have single-shot wooden rifles, yet their 1994 uprising won the popular support of the world when the human rights abuses of the Mexican party-state were exposed.  They have made their point and continue to hold off the Mexican Army.

If these severely under-equipped guerrillas can hold their own, then millions of American citizens with finely crafted semi-automatic rifles and boxes of ammunition could probably defend their freedoms according to Constitutional law should the need ever arise (but God forbid!).  A conservative amount of regulation is a good thing.  Do Americans need to take their guns with them to Disneyland, or their children’s elementary school?  Probably not.  Should convicted felons and other criminals be allowed to own firearms?  Absolutely not, for their right to that property was justly removed through due process of law, according to Constitutional law.

Nonetheless, the necessity of American citizens to have the right to bear arms is clear and everlasting, and Madison’s support of this idea is proven by his own persuasive writing.  To insinuate that he didn’t really mean it is foolish.  Nonetheless, perhaps the socio-political relevance of the Second Amendment can be revisited in the age when there is world peace.