November 26, 2022

Thanksgiving Week: Twelve More Mass Shootings

by Hal Gershowitz

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What Would the Founders say?

With 610 mass shootings so far this year, including 12 in the past week in which 19 people were killed and 43 were injured, I believe they would say (or think), “This is not what we intended. Let’s clarify the 27 words of the 2nd Amendment.

At the rate of gun carnage so far in 2022, this year may become the worst and deadliest year since the Gun Violence Archive began tracking mass shootings in America a decade ago. 

Let’s acknowledge that the 2nd Amendment made sense when it was written and adopted 232 years ago. Let’s recognize that it meant exactly what it said and that it was essential to gaining the support of the people for the establishment of the United States of America.

The second Amendment was primarily written to assure the citizens of our new nation that they need not fear the establishment of a standing army. At the time of our founding, standing armies were armed forces that existed in the old world to repress the people and to protect the monarchies and thugocracies that ruled and plundered.

The second Amendment assured that the arms in the hands of the people of the new United States of America (living in about 800,000 households) outnumbered the arms in the hands of our standing army (about 800 men at the time) by at least one thousand to one, given that just about every household owned a musket or a sidearm.

The founders understood and intended that universal gun ownership and the ability to activate well-regulated militias would essentially negate any concern over a standing army. This notion was logical at the founding but illogical in the world in which we live today.

The overwhelming majority of Americans, including this writer, have enormous respect for our armed forces (our standing army). Indeed, it is probably the most admired single component of our government. Few, if any, thinking Americans believe that the Second Amendment is what is keeping America free. Few Americans of sound mind believe the nation’s gun owners are keeping our armed services in check.

While I haven’t fired a semi-automatic weapon since Air Force basic training, I have no problem with Americans owning guns. I count many responsible gun owners among friends and family. The avid hunters I know, family and friends alike, scoff at the idea of hunting with a high-capacity magazine.

Americans can and should accept the importance of the Second Amendment when it was woven into the very sinews of our founding structure. The courts and virtually all constitutional scholars agree that the right to bear arms was enshrined in our Constitution because that was the only way to quickly activate a “well-regulated militia” to protect the country from domestic insurrection, foreign invasion, or a rogue standing army acting on orders from a rogue domestic government.

 I, like many others, have read and reread just about everything of record attributed to the founders regarding the Second Amendment. I agree they believed strongly that an uninfringed right to bear arms would protect the American People against an American standing army that might someday repress them, as standing armies in monarchical Europe had repressed their forbears from time immemorial.

However, the era in which Americans might have been wary, if not distrustful, of the nation’s new standing military has long passed. Indeed, our armed forces are our federal establishment’s most admired, honored, respected, and trusted arm. Nonetheless, the Second Amendment, enshrined 232 years ago, remains to protect us from our own armed forces. There is no arguing with that. There also is no arguing with the total abandon with which the founders’ intent has been corrupted by the politicization and glorification of the Second Amendment.

It would be folly to question what the founders intended. Their intention was abundantly clear in what they wrote and spoke. They intended widespread gun ownership primarily to protect America from its own armed forces in the event that despotic leaders used America’s new standing army to repress the people. That is what they intended. What the founders did not intend, or anticipate, is the mockery made of their reasoning by ambitious politicians seeking votes and eager gun manufacturers seeking sales.

The founders would be appalled that their 27 words have been corrupted into a mind-numbing mantra causing many unthinking citizens to tolerate almost unrelenting carnage in American communities.

What the founders didn’t intend or envision was gun-toting citizens showing up at school board meetings to protest against books they didn’t like on the shelves of school libraries or at demonstrations to protest against vaccines, mask mandates, or at human rights rallies. Today, in the United States of America, various forms of permitless open-carry laws prevail in 38 of the 50 states. That was not unusual in the 19th century. It is a sad commentary in the 21st century.

And, for sure, the founders did not intend that an industry would, someday, profit handsomely by using the founders’ twenty-seven words to underpin and justify the mass marketing of weapons, the lethality of which the founders could not have imagined nor have condoned.

Those twenty-seven words comprising the Second Amendment speak loudly. They do not have an expiration date, even though the original rationale for their inclusion has long since expired.

The initial American standing army, 246 years ago, made many people nervous, including the founders. So, the Second Amendment to our Constitution was conceived to alleviate that concern.

The intent of those who drafted the Second Amendment was, primarily, to assure the citizens of the new nation they could defend themselves against their own government if the government ever used America’s fledgling standing army to oppress them. There was a context, however, to the constitutional right to bear arms. It was to assure American independence and freedom, not to rationalize an American nightmare.

It was presumed that the Americans of their day would accept the significant responsibility that came with their uniform right to bear arms. In Federalist 29, Alexander Hamilton writes, “Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.”

Here Hamilton articulates the logic and the reason for the Second Amendment. Perhaps, along with the right to bear arms, every gun owner should, today, contemplate Hamilton’s presumption that they and their fellow gun owners would be “assembled once or twice a year” to assure their fellow citizens that they were adequately trained and disciplined…and, of course, screened to ensure that only law-abiding citizens were among those bearing arms.

The founders embraced universal gun ownership as a counterbalance to a standing army. It presumed a citizenry well-disciplined to the task. Listen to George Washington’s letter to both houses of congress: “A free people ought not only to be armed but disciplined…”

This is what George Washington wrote to Thomas Jefferson regarding gun ownership:

“It may be laid down, as a primary position, and the basis of our system, that every citizen who enjoys the protection of a free government owes not only a proportion of his property, but even of his personal services to the defense of it, and consequently that the Citizens of America from 18 to 50 years of age should be borne on the Militia Rolls, provided with uniform arms, and so far accustomed to the use of them, that the total strength of the Country might be called forth at short notice on any very interesting Emergency.”

And listen to George Mason, at whose urging James Madison offered the Bill of Rights to the Constitution.

“That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”

We needn’t guess what the founders intended by their reference in the Second Amendment to a well-regulated militia. Representative Sean Casten of Illinois reminded us earlier this year in an excellent Twitter posting:

“The word militia shows up four times in the basic text of the Constitution, and once in the 2nd amendment and once in the 5th amendment.”

So, let’s take a deep dive into the basic text of our Constitution to understand the founders’ use of the word “militia” when it is used later in the 2nd Amendment.

Article 1, section 8: “The Congress shall have the power to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel invasions…(and) to provide for organizing, arming and disciplining, the Militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the Officers…and the Authority of training the Militia according to the discipline prescribed by Congress.”

Section 2 first sentence: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”

So, the term “militia,” wherever it is used in the introductory text of the Constitution and the second and fifth amendments that reference the term has real context and meaning. We know what the term means, and as Representative Casten observes, “it ain’t the Proud Boys.”

I offer this sampling of the founders thinking regarding the uninfringed right to bear arms simply to illustrate that there was a context to the Second Amendment that gun zealots generally ignore. The Second Amendment was intended and only intended, to assure that, if necessary, a disciplined peoples’ army (think militia) could be quickly raised to confront a menacing standing army under the control of a despotic regime, or to confront an insurrection or a foreign invasion.

We should begin the long, probable multi-decade slog to amend and clarify the Second Amendment to eliminate the never-ending, deadly abuse perpetrated in its name. The Second Amendment was never intended to transform Main Street into the OK Corral.

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