The "Spectacularly Unhelpful" Second Amendment

By Garrett Epps, Salon

28 July 13

The most controversial amendment to the Bill of Rights is also the most confusingly worded

hile some parts of the Constitution are as dry as the English law's ancient Statute of Frauds, others are as delicate and suggestive as a poem by Emily Dickinson, offering empty spaces we are invited to fill. Dickinson's poetry is deliberately terse and operates by image and suggestion far more than by narration or exposition. It forces us to read carefully, with an openness to the multiple meanings suggested by every word or phrase, and no certainty that how we read them is correct: generations of school children, have learned to read using poems like "I'm nobody. Who are you?" As Walt Whitman is the father of American poetry, Dickinson is the mother. Dickinsonian reading is as much a part of the American mind as is Fundamentalism.

What would reading the Constitution with a Dickinsonian eye entail? Certainly we must become involved as much in what is not said as in what is. The language of the Constitution is compressed - in 7,000 words it evokes an entire nation - and practical unpacking of that text necessarily involves some of the tricks we learn encountering poems as apparently simple, yet baffling, as these words, written by Dickinson in 1865, as the United States suffered through civil war and social revolution:

Revolution is the Pod

Systems rattle from

When the Winds of Will are stirred Excellent is Bloom

The poem proceeds by juxtaposing an idea - revolution - with an image - the seed-pod of a plant. It does not contain a lesson about revolution; instead it forces the reader to expand his or her idea of it, to see it in a new way.

Let's apply a Dickinsonian eye to an important provision of the Bill of Rights:

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.

"Revolution is the pod" does not describe; the Second Amendment does not, truly, prescribe. Instead, it evokes the image of a militia, then weds it to two important concepts - on the one hand a "free State," on the other "the people" and their rights. Generations of scholars and judges have puzzled over this verbal collage. Who are "the people"? Are they an organized group of villagers assembled for "training day" on the village green, or solitary wilderness settlers toting home-forged rifles for protection against bears and cougars?

Many readers find in the Second Amendment a larger unstated vision of America as a polity in which an armed people "regulate" the state rather than the reverse, in which the individual is empowered to resist with deadly force unwelcome interference by either the government or the neighbors. (Just to make matters more confusing, a common usage in eighteenth-century America defined a "regulator" as a member of an extra-legal band of violent vigilantes.) Others, equally plausibly, deny this image, finding instead the important meaning of the amendment in the words "well regulated," and drawing from that the image of a republic in which the states are collectively armed for defense against rebels within and enemies without.

The duel of meanings is closely akin to the studied ambiguity of poetry. All discussions of what constitutional scholar Sanford Levinson recently called "the embarrassing Second Amendment" are shaped by complex images, by notions of what it is to be American, to be a citizen, or indeed to be a man. That it attracts the mythic imagination isn't surprising; its text offers one of the most puzzling conundrums in the entire Constitution.

"A well regulated militia being essential to the security of a free state," it begins. This is the only provision of the Bill of Rights to have a preamble, and one of only two provisions in the entire Constitution. (The other is the so-called Patent and Trademark Clause, which introduces the congressional power to create limited monopolies as designed "To promote the Progress of Science and useful Arts.") It is also the only place in the Bill of Rights, indeed one of only three places in the Constitution, in which the present tense is used - "a well-regulated militia being essential." (In the Tenth Amendment, the powers not delegated to the federal government "are reserved to the states respectively or to the people"; in the Citizenship Clause of the Fourteenth Amendment, "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside.") This is in sharp contradistinction to what might be called the prophetic future tense of the rest of the document: "Congress shall have the power," or "the executive power shall be vested in a President." The first clause of the Second Amendment is matter-of-fact, almost offhand. As we all know, it seems to say, a militia is important to "a free state."

What is a "free state"? Does it mean a state of the Union, or any organized sovereign government? Is a well-regulated militia essential to the United States as a free nation independent of other nations, or to its constituent states, sovereign and to some degree independent of their federal father? If it were possible to determine what this means, it might answer the key question about the Second Amendment, which is: does the amendment protect (1) the power of the states to maintain militias as part of the "common," that is, national, defense; (2) the power of the states to arm themselves against possible federal oppression; (3) the right of individuals to "keep and bear arms" for militia service; or (4) the individual right to do so for personal protection?

If the amendment is a structural protection for states, then state governments would have had and would continue to have plenary authority to regulate weapons inside their borders. Nothing in the Constitution says that states have to maintain militias. If they chose not to, then possession of weapons by individuals would be of little use to the amendment's purpose, and they could ban them altogether. If they choose to maintain militias, they could limit any individual right to the kinds of arms it would be useful for citizens to possess in the event of emergency. They could perhaps even limit possession to people of military age, whose ownership of weapons would be useful. Or they might even have the power - as some communities in the American West have tried to do over the years - to require citizens to maintain a workable weapon in their homes so as to be ready for service at a moment's notice. The amendment would simply prevent the federal government from overriding these state choices.

On the other hand, if the right to "keep and bear arms" is a protection of the individual against tyranny from any source, then states, like the federal government, would be at least limited in (though not necessarily totally disabled from) the restrictions they wish to impose on individuals. The amendment's text speaks of a beneficiary of the right - "a free state," which implies an organized government; and a holder of the right, "the people," which implies possession and use in some collective form. What it never says is, "a person." The Fifth Amendment provides rights to individual "person[s]." The Second does not do so explicitly; this however cannot be conclusive, as the Fourth protects the right of "the people" against unreasonable search and seizure, and that right can only be meaningful if it is extended to individuals.

Here the Framers' overall rhetorical approach is spectacularly unhelpful. As we have noted before, both the 1787 Convention and the First Congress adopted a grudging, tight-lipped tone toward the states. In only one place in either the Bill of Rights or the original Constitution is a right explicitly given to the states at the expense of the federal government. Suggestively enough, that solitary "state right" (more properly a "reserved power") relates to the organization and leadership of the state militia. That suggests an unusual degree of solicitude toward state power in this area, an interpretation that makes even more sense when we consider the radical military structure set up by the original Constitution.

Under the Articles of Confederation, all military forces were to be raised, provisioned, and organized by the states. The Confederation had the sole prerogative of "determining on peace or war," unless a state found itself either (1) actually invaded by another country (preemptive war against sovereign nations by the states without congressional consent being apparently barred by omission); (2) forewarned of a plan by "some nation of Indians" to invade the state (preemption in this case being allowed without congressional consultation); or (3) "infested by pirates" (the language suggesting that raids by pirates from outside the state's territory would not permit state reprisal without congressional approval, but that an actual pirate base on state territory could be attacked without consultation).

But despite Congress's predominance in the area of deciding on war, the entire military force of the Confederation was to be maintained by the states. The Confederation was to defray "charges of war" by raising funds through a direct requisition against the states based strictly on the value of land within their borders. But the military units were to be raised by the states, and the state legislatures would also designate the "regimental officers" ("all officers of or under the rank of colonel") even in wartime, when the forces would presumably be under joint Confederation command.

In the event of war, the Congress would set a number of troops needed and send each state a requisition "in proportion to the number of white inhabitants of such State." The states were to raise the troops required and "cloath, arm and equip them in a solid-like manner, at the expense of the United States" and then march them to the "place appointed" to be taken into the national service.

A cumbersome system indeed, and it would be unworkable if individual states had no ready supply of trained men and materiel in case of emergency. Accordingly, the Articles required that "every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field-pieces and tents, and a proper quantity of arms, ammunition and camp equipage."

Thus, under the Articles, the states not only could but must maintain fully combat-ready militias, while the Confederation would have no forces not directly supplied and staffed by the states. The prospect of the Confederation sending such troops against state governments, instead of foreign enemies, was virtually nil.

By contrast, consider the military setup under the 1787 Constitution. Congress could directly "raise and support armies," in time of peace or war. Congress could fund those armies by taxing the people of the states, without state consent. States could maintain militias and could appoint their officers. However, the organization and discipline of the militias was under congressional control at all times. In addition, the federal government could call the militias into the "actual service of the United States" at any time. When it did, the president would be their commander-in-chief. Once called into federal service, the militia could be used not only to "repel invasions" but to "execute the laws of the union [and] suppress insurrections" - in other words, to bend recalcitrant state governments to the federal will. Perhaps in no other area did the change from the Articles to the Constitution make a more drastic shift of authority from the states to the Union.

States were no longer required to maintain militias. The language seemed to take their existence for granted; but what would a state's "reserved power" to appoint officers avail if Congress, using its power to prescribe the discipline under which they would be maintained, were to overreach and order them disbanded? It's easy to imagine the horror of the veterans of '76 at the idea of a standing army kept by a Congress specifically empowered to take over, and perhaps disarm and disband, the state militias. The "shot heard 'round the world" had been fired when British regular troops, sent by a distant central government, marched to Lexington and Concord to seize the militia's weapons. Nothing in the Constitution would prevent that from happening again.

It would be quite logical, then, to read the Second Amendment as a direct response to this concern. The phrase "well-regulated militia" was directly lifted out of the Articles to refer to the state militaries ("every State shall always keep up a well-regulated and disciplined militia"). The Second Amendment could be read as reaffirming that state militias were essential, either to the state's freedom or to the well-being of the Union. Thus the federal power to discipline and call out the militia could not be expanded by construction to permit their dissolution. That reading is made even more logical when we consider that the Second Amendment, like all the provisions of the Bill of Rights, was initially read to apply only to the federal government. Nothing in it would apply to a state's power to regulate weapons ownership by its own people, if the state government so chose.

But this argument is far from conclusive. If the drafters of the Second Amendment were thinking purely of empowering the states and clarifying the status of the militia, then they have only themselves to blame for subsequent misunderstandings that have arisen. They could easily have said, "the power of the states to maintain a well-regulated militia, and to allow their people to keep and bear arms therefor, shall not be abridged." But they had trouble uttering the word "state" in the context of "power," as we have seen. Ensuring federal power, and limiting state authority, was a far more pressing concern of the Framers. And they chose the word "right," rather than "power"; if the word in this context refers to a state government, it would mark the only place in the entire Constitution - as written and amended from 1787 until now - where a state power is referred to as a "right." In every other context, the word "right" refers to an individual prerogative rather than a governmental power.

Constitutional historian Leonard W. Levy, a man of great learning and unambiguous opinion, deduced from the amendment's language that the Second Amendment must guarantee an entirely individual right:

The very language of the Amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause. Rather the right is an independent one, altogether separate from the maintenance of a militia. Militias were possible only because the people were armed and possessed the right to be armed. The right does not depend on whether militias exist.

Levy is a historian, not a linguist, and a real grammarian (ever-popular as a party guest) might say that the Militia Clause actually is grammatically subordinate to the Keep and Bear Clause, with the participle "being" to imply a cause-and-effect relationship: "Because (or since) a well regulated militia is essential to the security of a free state, the right of the people to keep and bear arms shall not be infringed." That reading arguably makes more sense than reading them as co-ordinate phrases: "A well-regulated militia is essential to the security of a free state and (or while we're on the subject) the right of the people to keep and bear arms shall not be infringed." If there is no subordinate relationship between the two clauses, then why would not the drafters have used the same aspect for both? The Militia Clause is in the present tense; the Keep and Bear Clause is in the future.

Consider the difference between saying, "The financial situation is quite critical, and I will have macaroni and cheese for lunch," and "The financial situation being quite critical, I shall have macaroni and cheese for lunch." Levy would apparently accept subordination, either grammatically or conceptually, only if the drafters had said, "Because and only because the right to keep and bear arms . . ." The co-ordinate reading of the two phrases seems to arise from a disposition to find a personal right in the language, rather than from the language itself.

That disposition might legitimately arise from the history of the phrase. "The right to keep and bear arms" went back to ancient disputes between king and Parliament, and to attempts by Catholic kings to disarm Protestant subjects. After the Glorious Revolution of 1688, William III granted his subjects the Bill of Rights, which specified that "subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law." That language provides fodder for both sides of the argument. It says that the arms are to be kept, not for defense of the Realm but for "their (i.e., personal) defence," which supports the idea of a personal right. On the other hand, it grants a highly qualified right, one which is limited by (1) a subject's religion; (2) a subject's "standing," or rank in the English social structure; and, most important, (3) laws set by Parliament, which, since it can "allow" the bearing of arms, must very likely also be able to "disallow" it. The English right to bear arms thus is a qualified one, enforceable against the Crown alone, and perhaps designed to safeguard the authority of Parliament as much as the liberty of the subject.

The argument is complicated by the important constitutional fact that the Fourteenth Amendment, enacted much later, has the effect of providing that many if not all the guarantees of the Bill of Rights now apply against both the states and the federal government. If the Second Amendment protected only a state's right to maintain a militia, it would make little sense to regard it as applying against the state - "a well-regulated state militia is essential, and so the state shall not have the power to regulate weapons" is a classic non sequitur. On the other hand, if it created a personal right against the federal government that could be abridged by the state (as the English right was provided against the king but subject to Parliament), the very nature of the right is changed - from qualified and purposive to categorical and absolute - by saying that the state also cannot limit it.

In all, the textual and structural evidence is in equipoise, though, as the earlier Levy quote illustrates, very few commentators are willing to admit the depth of its ambiguity. The argument seems currently to be tipped one way or another by extratextual ideas of American history, the nature of freedom and even the essence of manliness. Many Americans profoundly believe that the American Revolution was won by a completely unorganized popular movement, in which self-sufficient yeomen in fur and homespun dusted off ancient flintlocks and deployed individually against the Redcoats from behind trees and walls. The actual struggles of Congress and the leadership of the Army to construct a professionally trained and supplied force display the Patriot movement less than gloriously. They have tended to be eclipsed by the myth of the self-sufficient country rifleman. If America won its independence with grandpappy's squirrel gun, then any threat to current personal armories is a dagger pointed at the national heart.

Other historical images are equally persuasive, perhaps at an unconscious level. If we regard the Militia Clause as having some relation to the "keep and bear arms" language, of course, it's not necessary to designate the state militia power as the sole purpose of the clause. A more refined question might be, what personal right to bear arms would further the end of providing a citizenry trained and equipped to serve the militia in time of emergency? And how would that right be balanced against the kinds of restrictions on personal possession of weapons that might actually be counterproductive by restricting the power of the militia to "execute the Laws of the Union, suppress Insurrections and repel Invasions" Personal possession of hand grenades, field artillery, armor-piercing bullets, or tactical nuclear weapons might reasonably be thought to undercut the militia function. Semi-automatic weapons and powerful handguns might or might not, in individual hands, further the purposes of the militia. These questions, like other important constitutional questions, are surely amenable to arguments more finely reasoned than most of those employed in popular discourse about the Second Amendment.

In 2008, the Supreme Court decided that the Second Amendment guarantees a personal, individual right to possess a handgun in the home for self-protection. Two years later the Court decided that this right applies, by force of the Fourteenth Amendment, against the states as well as against the federal government. The Court is now, for the first time in our history, committed to spelling out the extent of the personal right, and we can expect questions of this sort to come up. It is thus in the interests of everyone concerned with the role of firearms in society to contribute more than images and myths to a reasoned resolution of this question - and during such discussions, perhaps we should all keep our hands where others can see them.

America's Real Subversives: FBI and NSA

By Amy Goodman, Guardian UK

28 July 13

As the 50th anniversary of the March on Washington nears, let's not forget the history of agency overreach and abuse of power

s the 50th anniversary of the 1963 March on Washington approaches, commemorating that historic gathering where Martin Luther King Jr gave his famous "I have a dream" speech, it is important to recall the extent to which King was targeted by the government's domestic spying apparatus. The FBI operation against King is one of the most shameful episodes in the long history of our government's persecution of dissenters.

Fifty years later, Edward Snowden, who is seeking temporary asylum to remain in Russia, took enormous personal risk to expose the global reach of surveillance programs overseen by President Barack Obama. His revelations continue to provoke worldwide condemnation of the US.

In a heavily redacted, classified FBI memo dated 4 January 1956 – just a little more than a month after Rosa Parks was arrested for refusing to give up her seat on a bus to a white passenger – the Mobile, Alabama, FBI office stated that an agent "had been assigned by [redacted] to find out all he could about Reverend Martin L King, colored minister in Montgomery and leader in the bus boycott … to uncover all the derogatory information he could about King."

The FBI at that time was run by its founding director, J Edgar Hoover, who was deploying the vast resources he controlled against any and all perceived critics of the United States. The far-reaching clandestine surveillance, infiltration and disruption operation Hoover ran was dubbed "COINTELPRO", for counterintelligence program.

The FBI's COINTELPRO activities, along with illegal operations by agencies like the CIA, were thoroughly investigated in 1975 by the Church Committee, chaired by the Democratic US senator from Idaho, Frank Church. The Church committee reported that the FBI "conducted a sophisticated vigilante operation aimed squarely at preventing the exercise of first amendment rights of speech and association." Among COINTELPRO's perverse activities was an FBI effort to threaten Martin Luther King Jr with exposure of an alleged extramarital affair, including the suggestion, made by the FBI to King, that he avoid embarrassment by killing himself.

Following the Church committee, Congress imposed serious limitations on the FBI and other agencies, restricting domestic spying. Among the changes was the passage into law of the Foreign Intelligence Surveillance Act (Fisa). Fisa compelled the FBI and others in the government to go to a secret court, the Foreign Intelligence Surveillance Court, in order to engage in domestic wiretapping.

Then came 11 September 2001, and the swift passage of the Patriot Act, granting broad, new powers of surveillance to intelligence agencies, including the FBI. Section 215 of that act is widely criticized, first for allowing the FBI to obtain records of what books people are signing out of the library. But now, more than 10 years later, and thanks to the revelations that have come from the Snowden leaks, we see that the government has used this law to perform dragnet surveillance on all electronic communications, including telephone "metadata", which can be analyzed to reveal intimate details of our lives, legalizing a truly Orwellian system of total surveillance.

In what is considered to be a litmus test of the potential to roll back the Obama administration's domestic spy programs, a bipartisan coalition of libertarian Republicans and progressive Democrats put forth an amendment to the latest defense authorization bill. Justin Amash, a Republican, and John Conyers, a Democrat, both of Michigan, co-sponsored the amendment, which would deny funding to the NSA to collect phone and data records of people who are not subjects of an investigation.

The White House took seriously the potential that its power to spy might get trimmed by Congress. On the eve of the debate on the Amash/Conyers amendment, House members were lobbied by NSA Director General Keith B Alexander, Director of National Intelligence James Clapper, as well as by hawkish members of the congressional intelligence committees.

The amendment was narrowly defeated. A full bill that would similarly shut down the NSA program is currently in committee.

Thanks to Edward Snowden, and the journalists who are writing stories based on his whistleblowing, we now know that the Obama administration is collecting oceans of our data. Martin Luther King Jr was a dissident, an organizer, a critic of US wars abroad and of poverty and racism at home. He was spied on, and his work was disrupted by the federal government.

The golden anniversary of the March on Washington is 28 August. Deeply concerned about the crackdown on dissent happening under Obama, scholar Cornel West, professor at Union Theological Seminary in New York, wondered if "Brother Martin [King] would not be invited to the very march in his name."