"Drop the Musket ..."

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"Drop the Musket and Assume the Position!" -- December 8, 2002

The gun control debate is heating up in America and at the center of this debate is the Second Amendment. Last year, Attorney General John Ashcroft caused a stir when his Justice Department issued a memorandum supporting the constitutional right of individuals to bear arms. Since then, several criminal defendants have challenged their weapons convictions on constitutional grounds.

Over the next few years, judges are going to have to answer the age-old question: “Can they tell I’m not wearing anything beneath my robe?” And while they’re pondering that question, they’ll also have to decide whether the Second Amendment gives citizens the right to bear arms.

Historically, courts have been reluctant to address this issue. For instance, despite the fact the Supreme Court decides several First Amendment cases each term, it has not decided a Second Amendment case since 1939. In that case, United States v. Miller, the high court ruled that the Second Amendment does not guarantee citizens the right to keep and bear arms.

The Second Amendment states, “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.” In Miller, the court interpreted this language to mean that the right to keep and bear arms belongs to “well-regulated militias” and not private citizens.

However, with all due respect, the Supreme Court’s interpretation of this language is more faulty than the transmission on my first car. The phrase “A well-regulated militia being necessary to the security of a free state” is merely a prefatory phrase. The operative words in the Second Amendment are “the right of the people (not the militia) to keep and bear arms shall not be infringed.”

For instance, let’s suppose the Founding Fathers had prefaced the first amendment by saying, “Because we are a bunch of men wearing wigs, make-up and tights, the right of free speech … shall not be infringed.” Would this mean that the right to free speech only applies to men wearing wigs, make-up and tights (i.e. Ru Paul and Dennis Rodman)? Of course, not. The right to free speech would apply to all, regardless of the prefatory language. Surely, the same reasoning should apply to the Second Amendment.

Some constitutional scholars with too much time on their hands (as if there is any other kind) disagree. They argue that the Founding Fathers were solely concerned about states’ rights when they drafted the Second Amendment. They wanted to insure that the states could arm themselves against a tyrannical federal government, if necessary.

This is partly true but surely, the Founding Fathers were also concerned about the ability of citizens to arm themselves against a tyrannical government (state or federal). After all, many of these same men had fought for their independence from the British government just 12 years earlier.

Surely, at least one purpose of the Second Amendment was to give the people a right to revolt against the government should it ever become as large or powerful as Oprah. In doing so, the Second Amendment allows citizens to arm themselves with the same weapons as used by the government. Unfortunately, the Founding Fathers could not have foreseen the incredible increase in the destructive power of modern weaponry.

During colonial times, the weapon of choice was the musket. While great for roasting marshmallows and picking up trash on the side of the highway, the musket didn’t pose much of a danger to human life. Therefore, it was safe to allow ordinary citizens to own them.

However, modern weaponry is almost as destructive as my two sons. Today, we have Uzis, surface-to-air missiles, rap music, etc. Therefore, a literal interpretation of the Second Amendment would give any citizen the right to own an AK-47, a tank or even a Stealth Bomber.

For the last 60 years, the Supreme Court has tried to ignore this disturbing fact by relying on the reasoning of the Miller case. However, I’m not sure that even Miller can protect us from the extraordinary dangers of the Second Amendment.

After all, under Miller, states are allowed to keep and bear arms to fend off the federal government. As a result, state militias could theoretically own weapons of mass destruction. Can you imagine the same people who run your local department of motor vehicles having “the bomb”?

The bottom line is that the Second Amendment is simply too dangerous and must be repealed. Weapons are far too destructive nowadays to be allowed the hands of citizens or individual states.

Besides, in the 21st century, we have found a better way of dealing with tyrannical government. It’s called the “two-party system.” So long as we continue to elect roughly equal numbers of Republicans and Democrats, they will be too busy fighting each other to bother us.

If you enjoyed this article, then you will love Sean Carter's new book, If It Does Not Fit, Must You Acquit? -- Your Humorous Guide to the Law. The book is not available in stores but may be purchased at Amazon.com or by clicking here.

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