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Reading Time: 3 minutes

Yes, they have had another mass shooting in the US. Yes, the debate rages on, eternally at an impasse. Yes, an eight-year-old girl was shot dead by an eleven-year old neighbour over a dispute about a puppy. But no, apparently Americans should not be able to amend a fricking Amendment. Gun control will infringe people’s rights!

Except the text of the Second Amendment 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.

A well regulated militia. Well regulated. Hmm, some kind of control. By whom? Self-control? It seems so. Perhaps, say, regulating themselves not to carry nuclear warheads? Of course. What about RPGs? Of course. What about assault rifles? Well…

Let’s think, when have they needed assault rifles to defend against the State? Oh yes, Waco. Let’s allow cults to arm themselves to fend off those wacky SWAT teams. There is an arbitrary line drawn in what the term “arms” is allowed to include. What about machetes? Samurai swords? Why not those in public?

As the New Yorker states, in answering the claim that change even needs to be made to the Second Amendment:

The right the Court announces [in Heller] was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. . . . Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding….

Stevens, a Republican judge appointed by a Republican President, brilliantly analyzes the history of the amendment, making it plain that for Scalia, et al., to arrive at their view, they have to reference not the deliberations that produced the amendment but, rather, bring in British common law and lean on interpretations that arose long after the amendment was passed. Both “keep arms” and “bear arms,” he demonstrates, were, in the writers’ day, military terms used in military contexts. (Gary Wills has usefully illuminated this truth in the New York Review of Books.) The intent of the Second Amendment, Stevens explains, was obviously to secure “to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” The one seemingly sound argument in the Scalia decision—that “the people” in the Second Amendment ought to be the same “people” referenced in the other amendments, that is, everybody—is exactly the interpretation that the preamble was meant to guard against.

Stevens’s dissent should be read in full, but his conclusion in particular is clear and ringing:

The right the Court announces [in Heller] was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. . . . Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding…

Justice Stevens and his colleagues were not saying, a mere seven years ago, that the gun-control legislation in dispute in Heller alone was constitutional within the confines of the Second Amendment. They were asserting that essentially every kind of legislation concerning guns in the hands of individuals was compatible with the Second Amendment—indeed, that regulating guns in individual hands was one of the purposes for which the amendment was offered.

Either way, whether seen from state regulation or external regulation, regulation is at the heart of the extant amendment.

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Jonathan MS Pearce

A TIPPLING PHILOSOPHER Jonathan MS Pearce is a philosopher, author, columnist, and public speaker with an interest in writing about almost anything, from skepticism to science, politics, and morality,...