May 20, 2022

The 2nd Amendment: The Great American Anachronism.

by Hal Gershowitz

Comments Below

Merriam Webster: Anachronism— a person or a thing chronologically out of place, especially one from a former age that is incongruous in the present.”

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.” Okay, I’m a Second Amendment guy. I believe the uninfringeable right to bear arms was brilliant, appropriate, and necessary when the Constitution was adopted 231 years ago. Without the Second Amendment, the US Constitution would have never been adopted, nor should it have been. Among our founding generation, there were both strong Federalists and strong anti-Federalists. Patrick Henry, James Winthrop, and George Mason were strong anti-federalists. Alexander Hamilton, John Jay, and James Madison were among the leading Federalists. Without the Second Amendment, the anti-federalists would have prevailed. Without the Second Amendment, there would be no United States of America.

Two hundred and thirty-one years ago, the founders who gathered in Philadelphia to write our Constitution were all wary of the dangers of a standing army. They all knew that standing armies in Europe, from time immemorial, were used by ruling monarchies to repress their people. Nations (think monarchies) that maintained standing armies used them primarily to keep their people in check. The founders all embraced the idea of a citizenries’ right to bear arms and their right to establish militias as a bulwark against a standing federal army that might repress them.

Understand this: our founders understood that the people, because they could keep and bear arms and organize into local or state militias, could protect our new nation against a potentially tyrannical federal government emboldened with a standing army. The nation’s founders, all of them, embraced the idea that an armed citizenry could, if necessary, keep in check the new federal government they were creating. After all, any citizen with his single-shot musket was, potentially, as formidable a warrior as any federal soldier with his single-shot musket.

Looking askance at a standing army made sense nearly two-and-a-half centuries ago. According to the first United States census conducted in 1790, there were just under 680,000 families or households in the new country. Almost every household owned a musket, so the country was well-armed and well-protected should the newly formed American republic go rogue. That was extraordinarily significant because the new republic, at the time of the constitutional convention in 1791, only had a standing army of about 800 men and probably not too many more muskets. The armed households of the country far outnumbered the armed army of the new United States of America.

But that was then, and this is now.

Every one of our nation’s founders embraced the idea of the second Amendment as essential at the time. However, all of them would turn over in their graves if they knew the utter folly the twenty-seven words of the Second Amendment have since visited upon the nation’s ability to fight gun carnage in America. And let us not be insulted with the inane refrain that guns don’t kill—people do. No demented individual ever mowed down a classroom, a church, a synagogue, a mosque, or a supermarket with a club or a knife.

So far, there have been 198 mass shootings this year (defined as three people shot, excluding the shooter), and the year is only 19 weeks old. What, one might ask, would the founders say if they understood the extent to which their Second Amendment had so crippled the nation’s ability to deal with domestic, home-grown gun carnage? Carnage in which the victims were invariably citizens of the very country they worked so hard to establish?

Over 500 Americans have been killed over the past decade in mass shootings, including the ten killed in Buffalo, New York, last week, the 11 killed at the Tree of Life Synagogue in Pittsburgh in 2018, the 60 killed on the Las Vegas strip in 2017, the 49 lives lost at the Pulse nightclub in Orlando in 2016, and the nine killed at the AME Episcopal Church in Charleston South Carolina in 2015. The founders never anticipated that their 2nd Amendment would turn so many Americans into clay pigeons at which deranged or simply malcontented fellow Americans would shoot.

We have a Second Amendment to protect us from a renegade standing army that has never existed in America. At the same time, the nation and its many communities are left bereft of any effective means to control or regulate and, yes, “infringe” upon the acquisition of all manner of handguns, long guns, and semi-automatic machine guns in America. While polls show that respect for our armed forces has diminished in recent years (largely because of the fruitless twenty-year deployment in Afghanistan and the mayhem that accompanied our final withdrawal from Kabul), our military is still, by far, the most admired and respected component of our federal government, especially when compared to our Congress.

One need not wonder what the founder’s appraisal of our standing armed services would be today, given the concern they all had about the dangers of a standing army 231 years ago. Civilian control of our standing military has never been questioned or challenged in the history of the United States. When American civilian Presidents or their civilian Secretaries of Defense (or Secretaries of War) have seen the need to fire some of our most popular Generals, the Generals have complied and immediately retired. Since our founding 246 years ago, eight high-ranking Generals or Admirals have been fired by their civilian Commanders in Chief, and they have immediately retired without protest or question. President Abraham Lincoln fired Generals John C. Fremont and George B. McClellan. President Franklin Delano Roosevelt fired Admirals James O. Richardson and Husband E Kimmel. President Harry Truman fired General Douglas MacArthur. Admiral William Fallon was fired by President George W. Bush and Generals Stanley McChrystal and David McKiernan were fired by President Barack Obama.

Today, the very notion that we need an armed citizenry to protect us from our men and women in uniform is as preposterous as it is unrealistic. The firearms available to the general public are rightfully available for self-protection and hunting or, perhaps, for target practice. Still, those weapons would be of no value against the weapons available to the United States military. However, too many of the 300+ million guns in private hands have proven remarkably effective in over 20,000-gun murders committed in the United States last year.

The right to own a gun in America is not, and should not, be an issue. However, the fact that that right cannot be “infringed” or effectively regulated or controlled is a great American anachronism for which we pay a terrible price every year.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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26 responses to “The 2nd Amendment: The Great American Anachronism.”

  1. m kaback md says:

    EXACTLY…!!!

  2. Dan says:

    On the other hand, too many citizens do not avail themselves of the right to go forth armed in case of attack by anyone. Too many have allowed their state and local governments to abridge their right to be armed at will or at all. Many depend on local law enforcement to guard their personal security. To me, as a retired LE officer, know all too well that the honest citizen, properly armed, need to be ready to protect themselves and their families.

    • Bob says:

      You forgot to mention, “ mentally & emotionally stable”- isn’t that the real issue? Somebody walking into a bakery with a array of guns on their shoulder is two sense short of a nickel. I see that happen, I’m going to call the police & the mental health people immediately.

  3. Elliot solomon says:

    Although I do agree with Hal, as one who have never owned a gun and who believes in gun control, I always find it odd that all the attention written is always about the NRA gun owners and not the overwhelming supply of non registered guns in the inner cities which are taking more lives per year than those taken by mass murders

  4. Larry Fox says:

    These columns on the amendments feel – in the very best way – like returning to my Civics class.

    The Bill of Rights, I believe, was not included when the Constitution was agreed to. The anti-Federalists, led by George Mason (the principle author of the Constitution of the Commonwealth of Virginia from which our federal constitution was largely cribbed) refused to sign the Constitution because, absent a Bill of Rights more inclusive than the ten that passed, he believed our Constitution granted too much power to our national government. He wanted – insisted – on more protections for people vis-a-vis the government.

    As to the 2nd, the part after the comma is quite clear. But the comma and the precedent phrase exist! What does it mean that the right to bear arms has as its predicate our need for a well-regulated militia? Does the first phrase – by the laws of drafting – not represent a binding condition or constraint on the second phrase? Until the past few years, the dominant consensus of mainstream constitutional lawyers was inconsistent with the leanings of our present Court.

    In plainspeak, to what degree is our unimpeachable right to bear arms limited, if at all, by what we take “well-regulated” to mean? To many – and to be frank, to me – it means that functional regulatory limits on the types of arms, and ammunition, and on the demonstrated degree of impulse control of potential owners of arms are well within the ambit of the language of the 2nd.

    We’ll-meaning people can differ. The Courts decide what the law means when the law – to the discredit of its drafters – is ambiguous. George Mason would quite certainly not be a progressive by today’s standards, but he was undeniably a patriot. It’s too bad that his is the smallest of the memorials on the Mall.

    • Virginia Arthur says:

      I agree with you. We do need to make sure that military type weapons and ammunition are not owned by American citizens or anyone residing here other than the police and the military.
      People who are unstable must be flagged so that they can not purchase a weapon. This can be revisited if the person has sought help from mental health providers and are deemed stable and no threat to themselves or others.
      Anyone who has committed a crime with a weapon should be flagged and not permitted to purchase a firearm.
      Anyone who is found to be a member of an extremest group should be flagged.
      I believe that we can reach a good balance here and protect the public.

  5. Perry says:

    I for one believe firmly in the 2nd amendment. The facts of the recent spate of shootings is the
    result of breakdown in religious belief, family structure and a press and undeserved compassion and understanding of perpetrators of the crimes. If we do not enforce minor laws and people are not punished early of course they will resort to more violence including
    murder and senseless shootings. I have maintained the erosion of Civil society is happening daily with the election of feckless unworthy leadership.

  6. David Rosen says:

    Let’s remember that, for more than a century and a half, the Bill of Rights was not applied to restrict the power of the states. It is only because the Supreme Court decided—in the period from the 1940’s to the 1960’s—to apply the Bill of Rights in its entirety to the states that second Amendment rights—whatever they are—restrict states rights the limit industry visuals’ right to possess arms.

  7. Stuart Goldfine says:

    Prohibition never worked, nor will gun control. Guns today are bought on the Internet, stolen, or smuggled through our porous Southern border.
    After a mass murder, the blame is always the NRA. Name one mass murderer who belonged to the NRA.
    NRA members don’t use an AK-47or similar to kill a deer, bear, duck, or pheasant.
    I do not own a gun, but today, we need more police in the inner cities and a return to capital punishment. Eliminate the criminal element and use it humanely, like the Firing Squad was used in Utah.

    • Bill Giers says:

      CULTURE must be examined. Attitudes that effect behavior. When anything has been banned or restricted in the US, that action has INCREASED that activity or desire for what was banned. As many people die in auto accidents as die from shootings. If you check the statistics, 85% or more are single shot suicides. The great majority of the rest of the shootings are gang, drug, crime related. Do check the FBI stats on how often guns are used to prevent crime and how many private citizens save their own lives by using guns as protection.

  8. kip carter says:

    While I understand your position it does not help your position when you show your lack of knowledge of firearms. There is no such firearm as a “semi automatic machine gun”. Actual automatic firearms have been heavily regulated since 1934. I believe that the decision to close down mental health hospitals in the 1960’s and to rely on people to reliably take their own medications is a large part of the root of our current situation.

    • Hal Gershowitz says:

      Kip Carter is correct. I should have written,semi-automatic weapon instead of semi-automatic machine gun.

    • Virginia Arthur says:

      I agree. There is a severe lack of mental health providers in this country. Too many children have severe mental health problems, there are not enough mental health providers in the schools to recognize these children and refer them to mental health providers and to follow up on their progress.
      We do need more mental health facilities. This is a must because there are too many people who have severe mental health problems and are never treated.

  9. Robert borns says:

    Again a joy to read the column with facts galore that I either didn’t know or forgot. For discussions though, I side with Perry. What a team. —Perry and Hal.

  10. Neil Hanson says:

    This is the second of these essays that I have read, and find myself enjoying them. I am a lifelong gun owner/enthusiast and hunter, though most of my hunting is by bow. I agree strongly with the ideas you share here. To take 2A seriously would require that each citizen have access to and control over nuclear weapons, which hopefully would be considered absurd by any who considered such an idea. My right to own weapons is not more significant than my responsibility to my society and tribe to keep the vulnerable safe. Thanks for an excellent essay! BTW, I’d welcome the opportunity to build some sort of “back and forth” essay with you that you could publish exposing multiple perspectives on an argument.

  11. Peggy Jacobs says:

    This subject fires up everyone. I agree with your position, but rarely hear a commentator refer to the purpose of the 2nd amendment. I fear we are stuck with it, despite the changes since its adoption.
    “so this will never happen again” is a useless statement. Very depressing.

  12. Bob McCleskey says:

    This is THE most intelligent, unbiased, and thought provoking analysis of the second amendment that I have ever read. It’s especially relevant with Buffalo, NY, and now Uvalde, Texas, fresh on our minds. This happens NOWHERE else in the world but I hold out little hope of real change toward reasonable gun laws in this country.

  13. 2 events have made me believe that the 2nd Amendment is not an anachronism. First is the end of secular government in Turkey in favor of what is becoming a religio-facist state.
    Second is the January 6, 2021 insurrection wherein an attempt was made to overturn a democratic election. Standing armies are not the only danger we face these days. That said I believe that background checks don’t infringe the right to bear arms. Nor does prohibiting the mentally ill or spousal abusers from obtaining weapons infringe the right. Strictly enforcing these regulations should be a priority. I am also in favor of bringing back the universal draft to democratize whatever standing army we have.

  14. Jerry Mathews says:

    The resending of your column in light of today’s Texas tragedy, leaves little else to be said Hal -sick at heart!

  15. Terry Barber says:

    Obviously, a timely article, given the 18 known dead children and three adults. Senator Murphy raised the question for his colleagues: “ What are we doing here”? Sadly, it’s only a few sociopaths in the Senate who hold 90% of Americans hostage to passable if necessary gun legislation.

    Maybe we need a mental health test for all candidates for national office—like that for those wanting to become military officers face.

    Maybe a majority of states need the ability nationally to recall members of Congress who brashly violate the manifest will of the people and the Constitution. I’m thinking of McConnell who has with intention and destructive aims negatively impacted our courts—from district to federal to SCOTUS.

    Changes are needed. Let like-minded people change proven anachronistic language, repeal anachronistic laws, and given the new realities of a new age bury the anachronistic and inquisitorial attitudes toward women and people and of color to bring forth an improved Democracy for all.

  16. SUE MELTZER says:

    Thank you for this “re-do.” You have expressed my feelings about the 2nd amendment exactly. I do not see the reason why guns are so widely accepted in the American culture. My heart aches more and more with each mass shooting. THIS MUST STOP!

  17. Virginia Arthur says:

    I absolutely agree with you! We do need mental health evaluations on all candidates for national AND State offices.
    We also need to have the ability to recall members of Congress if they are ignoring the will of the majority of people whom they represent.
    As far as changing the Constitution, I don’t know how that would work

  18. Larry Fox says:

    As an expert-rated marksman, I certify that your column hit the mark. Bulls-eye. But while the amendment is an anachronism, the current interpretation of it is an abomination, and the execution of our registration legislation makes it evident that our gun nuts – a substantially different, and hugely smaller group than our set of gun owners – makes it quite clear that in our present debate, the amendment is just a foil. We are not enforcing our existing laws on registration.

  19. Phyllis says:

    I whole heartly agree with the ideas expressed in this current column. I own a gun, I have trained to use the gun. I could carry a concealed weapon if I choose too. I do not have a problem with registration or background checks. With that said I also believe the citizens of the US strongly believe in their rights but also choose not to accept responsibility for the their actions that effect the “good of all”. We need to take better care of all folks with mental illness. The current trumpers and all that support that attitude are putting us all in danger with their hate speech that insights actions such as the shooting in New York. We have a former president talking about civil war. I fear for our country and constitution.

  20. Bill Matles says:

    James Madison, the author of the 2nd amendment, BANNED GUNS FROM UVA. Wyatt Earp banned guns from Dodge City and KS banned guns from salons. In Heller V District of Columbia Scalia, who wrote the majority opinion again restates the Madisonian opinion the
    2nd Amendment does NOT prohibit restrictions and control of guns.

  21. Robert says:

    Here we go again! Some malcontent, demented idiot uses a firearm to kill helpless children and every well-meaning and demonstrably misguided person in the U.S. screams “gun control.” “We must abolish the 2nd Amendment!” I say “wrong.” It matters not at all what the so-called rationale was for enacting the Second Amendment. What does matter is that there are a host of dead children and adults. Additionally, although there are no mass murders by knife wielding assailants, in the absence of a gun one can be certain that there would be a bomb throwing lunatic, or the self-martyr suicide bomber, even without a Second Amendment.

    One can be as certain as the sunrise and sunset that if some demented person wants to kill, that person will find a way. And with all due respect it is not an insult to state the obvious about what does the killing, i.e., “guns do not kill, people do.” The absolute certainty that people do the killing is so self-evident that it is an insult to any thinking person to deny that people are not the killers who pull the triggers. Or, if anti-self-defense zealots succeed in disarming ordinary Americans, if there remains such a thing as an ordinary American, is there any sane person who thinks that killing will decline in the present societal framework and mindset or that criminals will no longer possess guns? Criminals would rejoice at the prospect of no Second Amendment!

    There is a larger problem that needs to be addressed, one that is all but completely ignored. It is the spiritual state of the nation. Although I am a layperson, it is patently obvious to me that the insane malice that pervades contemporary society is the brainchild of sociologists and psychologists who have no spiritual steerage, or who on the other hand are the willing handmaids of Satan.

    And yes, I believe there is a heaven and a hell and that both are eternal. That humans by their choices are marching in one direction or the other. It is obvious by listening less than ten minutes to the daily news stream, (if “news” is how one would care to characterize the tripe that flows from the media), that those in control of what the public hears and sees have turned good into evil and evil into good and thus pervasive insanity fills the “mediasphere,” just watch and listen! It is precisely that insanity that is at the root of the malice and hatred that pervades this nation and the associated killing.

    Tragic, and heartbreaking is the death of innocent children in a school or recreational setting, but when the killing of more than forty million children and thousands of would-be mothers at the hands of abortionists, it is suddenly “choice,” “my body,” driven by lust and selfish desire for sensual pleasure. If men or women want to engage in illicit or otherwise sex, then they are responsible for their actions and outcome. They can use protection or have a medical procedure to prevent conception. Simple and cheap without the human carnage and associated pushback.

    I am for freedom including the freedom to bear arms, I am also for ages-old tried and proven moral standards.
    2 Chronicles 7:14 “14 If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.”

    What this country needs now is for God’s people to return to God, to turn from “WICKED WAYS,” to return to civil discourse, to desist from the hatred and combative language that pervades this land, to approach the problems in a logically consistent and spiritual manner, to respect and love one another; then there will be peace, but/and not until!

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