In 2008, the U.S. Supreme Court in District of Columbia v. Heller held (5-4) that the Second Amendment guarantees an individual the right to possess firearms independent of service in a state militia and to use firearms for traditionally lawful purposes, including self-defense within the home. The court majority, along with many members of Congress, ignore the first three words of the Second Amendment, which explain why the right to firearms exists: “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.”
Surely the authors of the Constitution had in mind a militia organized by and subject to the government — not a ragtag crowd of ruffians carrying shotguns and AK-47s around an abortion clinic or into the U.S. Capitol.
The militia could be based on conscription: The original language of the Second Amendment included a clause excluding conscientious objectors from compulsory service in the militia. Article 1.8 of the Constitution empowered Congress to call “forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. … 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.”
Early Americans preferred militias to standing armies like the British force sent to maintain order in the colonies. The citizen militias of several Massachusetts towns drove back the Redcoats from Concord on April 19, 1775. Ultimately, however, to defeat the British they needed the Continental Army commanded by George Washington and financed by all the colonies.
The peace treaty with Britain was signed in 1783; the Constitution was written in 1787, ratified in 1788, and put into operation in 1789. Soon — in 1791 — a tax protesters’ Whiskey Rebellion broke out and ravaged western Pennsylvania until 1794, when President Washington mobilized a conscripted force of four state militias. Its 12,000 soldiers confronted a smaller group of mutineers, who promptly backed down and went home.
But even a well organized militia was not adequate when confronting major powers. The need for a standing army and navy became evident when the United States again fought Great Britain, and then other powers, in the 19th century and beyond. So, the historic vision of Cincinnatus with his plow and sword faded. Each state formed a National Guard subject to the governor, but they were not like the Swiss army that authorizes each soldier to keep his weapon at home.
In its Heller decision, the Supreme Court struck down the D.C. handgun ban as violative of the Second Amendment. Doing so, the court appears to have ignored the plain meaning of the Second Amendment, its historical context, and lengthy legal precedent.
The Second Amendment does not prohibit private ownership of guns — but neither does it create an absolute barrier to any kind of government regulation. Some say the amendment bars limits on the capacity or caliber of individual weapons and background checks on gun purchasers. But aren’t governments expected to place reasonable regulations on what citizens do? The Constitution’s Article 1.8 empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” So, we have many rules — set by local, state and federal authorities. For example, drivers are tested, licensed and taxed; so are autos.
Given America’s epidemic of gun violence, perhaps we should test, license and tax owners of weapons and the weapons themselves. As the Supreme Court in the Heller case noted in passing, the right to arms “is not unlimited and does not preclude the existence of certain longstanding prohibitions” such as those forbidding “the possession of firearms by felons and the mentally ill” or restrictions on “the carrying of dangerous and unusual weapons.”
Bottom line, the barriers to gun regulation do not necessarily lie in the Constitution or in common sense. They arise from financial inducements and political pressures by gun lobbies and the kinds of lawless fanatics who stormed the Capitol on Jan. 6, 2021.
Walter Clemens is professor emeritus of political science at Boston University. He is the author of several books, including “The Republican Virus in the Body Politic: How to Reboot America.”