The 2nd Amendment: What It Really Means to “Repeal and Replace”
By Sean Brown
There is apparently a widespread belief making the rounds that the 2nd amendment needs to be rewritten in order to specifically only protect limited firearm ownership rights of hunters, collectors, target shooters, and those who are concerned with self-defense. In this view, the simply open-ended “right to bear arms” really ought to be interpreted only in the sense of allowing sportsmanship and defense with guns, and not in the sense of guaranteeing a universal right to bear weapons of all sorts. To be fair, Republicans and the NRA do not do very much to dispel this view, choosing to focus on precisely these activities as their core arguments as to why guns are safe to be legal, rather than chiefly arguing the Constitutional history of gun rights, or the history of why the 2nd amendment exists. This article aims to do just that.
It must be noted that all of the aforementioned activities and uses would have been technologically feasible (and many of them indeed in existence) in the 1790s, yet no such specific distinctions were carved out in the text. The 2nd amendment was not written into the Constitution to protect these rights, since they would not have been viewed by the Founders as nearly significant enough to warrant a constitutional amendment. The 18th amendment, which banned alcohol and was fortunately repealed by the 21st, is an atrocity with regards to its utter triviality when compared to all of the rest of them.
Moreover, the Founders were reluctant to even put in a Bill of Rights at all because they doubted it would be necessary, and they even considered it possible that it would be misconstrued if the government got clever, chose to read between the lines of “shall nots”, and thus inferred implied powers whenever they were not explicitly forbidden from doing something. The 2nd amendment must therefore be viewed as something far more substantial than merely guaranteeing certain reasonable property rights to sportsmen, because the protection of property rights was basically taken as all but a given at the time; and indeed significantly more than to simply enable self-defense, since guns were not the primary instrument of personal self-defense at the time, rather being employed chiefly in military applications.
There is a popular libertarian argument that often circulates which asserts that the 2nd amendment was written to provide a popular check on the government’s power: that an armed populace cannot be easily ruled by a tyrant. This is, however, perhaps overly optimistic with regard to both people’s willingness to actually engage the government, and their chances at victory in that event. Additionally, since the amendment does mention “a well regulated militia”, doubt is potentially cast upon the “popular check” argument. But the 2nd amendment also recognizes the right of the people, so the common argument that it only applies to state-funded militias (when literally everywhere else in the entire document people means what it says -- individual persons -- and not state governments) is most certainly unfounded.
However, it must also be recognized that a good number of the the Founders were essentially aristocrats, who, as opposed to holding a philosophical bent of liberty (which a good number of them certainly did), merely wanted to ensure that their own assets and societal stature would be sufficiently protected. The only reason they really limited federal power was because many of them held substantial positions of influence within their home states and were not eager to see their own powers superseded by a powerful national government. Though the Articles of Confederation failed -- essentially a much-too-radical attempt to create a federal government so small that it almost did not exist -- they still sought to create as small of a workable national government possible via the Constitution, mainly because they wanted the state governments to retain substantial power, not chiefly nor necessarily so that the people's liberties (at large) could be upheld. The Bill of Rights, a charter of individual liberties, was only added at the insistence of the more radically libertarian anti-federalists, who insisted, certainly not without merit, that their liberties were not sufficiently protected from encroachment despite a fiercely minimalistic federal government as it was.
State governments are essentially barred from raising armed forces by design, but at the same time, not allowing the states to raise armies while allowing it by the federal government creates a serious balance of power problem. By permitting the people of each state to keep and bear arms, and permitting the existence and operation of militias within the states -- militias which usually were (and still are) either ad hoc or poorly funded -- the Founders essentially hoped that by granting the people a particular explicit liberty, the state governments would be thus empowered to employ these militias, which are naturally not offensively capable, to successfully stand up to the federal government should it attempt to encroach too far on states’ rights.
Given this context, it seems eminently reasonable that the 2nd amendment was seen in those times to permit private ownership of cannonry and of naval combat forces: it was not meant to secure rights for rights’ sake, but to empower state governments. It should also be noted that the Constitution gives Congress the power to grant letters of marque and reprisal, essentially licenses for citizens to individually undertake combat operations against enemies of the United States. Given this enumerated power, it makes even more sense that the 2nd amendment should be interpreted to permit ownership of military-grade weaponry.
While the view of the 2nd amendment creating an individual check on the federal government is somewhat overly optimistic, it instead forms a potential state check, which, one might argue, is the next-best-thing. Of course, the meaningfulness of this in the present day is dubious, since such a thing was indeed tried in 1861 and it did not end well for the states which were bold enough to give it a go. Regardless, however, I think it is quite clear based on historical context that the 2nd amendment protects the right of the people to own weaponry of a vast array of classes, strengths, and categorizations, for any and all purposes of self-defense, including defense of one’s state against the federal government.
As such, any proposal to “repeal and replace” the 2nd amendment must be undertaken with full appreciation for the sheer magnitude of the shift in attitude one is taking toward firearms and weaponry in general. While it may appear to be an attempt to provide for public safety -- although the actual efficacy of gun control at achieving this end is highly suspect -- it is actually a well-concealed attack against the federalist system of government with the United States was endowed and still currently enjoys to a significant extent. While I admire the fact that the proponents of such an idea are proposing to repeal and replace the 2nd amendment, rather than dishonestly interpreting it to mean something it never has meant before in order to cheat the Constitutional prohibition against gun control, I still think that many people take such proposals far too lightly, without an appropriate appreciation for the true magnitude of the change they are actually proposing.
Sean Brown is the Secretary of the Lancaster County Chapter and is the Editor of the Libertarian Penn.