Rights and the 2nd Amendment

In an old blog post I argued that the Second Amendment created three constitutional rights. “One is a right to participate in the military, in Latin jus militiae, from its origin in Roman law. The second is a right to possess weapons for the purpose of the participation in the militia, [now the National Guard] guaranteed by the first right. The third is a broader right to possess weapons unrelated to matters military.” The Second Amendment: Not One or Two but Three Rights  I was mistaken.

Guns don’t kill people, true -- in exactly the same way ricin and hand grenades don’t kill people.

There is a perfectly good sense in which guns don’t kill people, but it is not a sense that has any implications for gun control policy.

Mass Killings and Killings in Chicago

In conservative and right wing comments on internet news reports of mass killings, especially where those killings are racially motivated (a significant fraction of mass killings), there are recurring memes. In addition to the ever popular “guns don’t kill people,” and “it’s a crazy person problem, not a gun problem,” we find versions of “why aren’t the media reporting on the n number of killings in Chicago in the last m days” (for some large number n and small m). 

Why should Chicago’s homicide statistics show up in online discussions of a white nationalist’s premeditated slaughter of Hispanics in El Paso? The explanations I find are either scary, stupid, or both.

The Second Amendment: Not One or Two but Three Rights

I will here argue that the Second Amendment constitutionalizes three rights.  One is a right to participate in the military, in Latin jus militiae, from its origin in Roman law. The second is a right to possess weapons for the purpose of the participation guaranteed by the first right. The third is a broader right to possess weapons unrelated to matters military. I do not argue this interpretation because I think it conduces to good public policy. What it does is make good sense both of the operative language of the amendment and its militia clause.

The 2nd Amendment Right to the Open Carry of Swords and Shoulder Launched Missiles

As everyone knows the Second Amendment is not about guns. The objects of the right it constitutionalizes are “Arms.” Swords, bayonets, and hatchets, as well as muskets, were the arms of the Revolutionary War. Current arms of individual use include body armor, hand grenades and shoulder rockets.

The fact that shoulder rockets are a tad dangerous and of little socially approved private use surely has some bearing on their constitutional status. A frank recognition of this fact will show the supporter of the open carry of large clip semi-automatics that his mode of constitutional interpretation is not so different from those who contend that the carry of said semiautomatic, and perhaps also of a Saturday night special, is outside constitutional protection.

The Purpose of the Second Amendment Failed Long Since

The American colonies and the new United States were deeply distrustful of a standing army, a distrust inherited from their English Whig forebears. That is why the army and the navy were treated so differently in the Constitution.