This is part three of the “Know your Constitution” series.
I don’t expect that every amendment to require an article of its own, we’ll see how it goes.
We pick up with the second amendment, “The right to bear arms”. This amendment is short and simple.
“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”. (emphasis on comma mine)
That comma has been the centerpiece of many arguments, which is why I emphasized it. For such a short, simple statement, it has probably been argued more than any other amendment to the constitution. The simplest explanation I can give you goes back to the core of understanding why this document was written, which is limit the powers of the federal government. The Constitution itself is written defining the construction of government, maintaining a system of equal representation and allowing checks and balances to prevent any branch of government from becoming too powerful. The first amendment is yet another check allowing avenues of redress and protest. The second amendment is the ultimate balance, the availability of armed revolt.
Yep, that’s what it’s about. It has nothing to do with hunting, not even for survival. It’s about the survival of the union.
My reading, based on the way the other amendments are written within the Bill of rights, is that militias, the right to keep arms, and the right to bear arms should not be infringed. Without the comma, militias don’t enter the equation.
So what is a militia? It is an independent military force. The Militia Act of 1792 allowed the President to call upon militias to support federal troops, indicating they are independent. The second Militia Act of 1792, passed just six days later, provides for the organization of militias, and conscription of all able bodied men, age 18 to 45. Not for a couple of years, but for the period of twenty seven years, from age 18 to 45. It also provides that each man “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder”.
Based on 25 grains of powder per round, that’s enough powder for seventy rounds, required by law to be maintained by every man. Considering a guerrilla tactic of free fire rather than controlled fire ranks, a well trained rifleman could get off four rounds a minute maximum. So that’s enough powder to keep shooting for almost twenty minutes.
Can you imagine if someone were to arm themselves with sufficient ammunition to fire for a solid twenty minutes today? I couldn’t maintain a rate of one aimed shot a second for twenty minutes, but I could certainly use that rate to describe suppressing fire. That would be twelve hundred rounds, filling forty standard thirty round magazines. Just to put things into perspective.
When we consider the reasons firearms are banned, it is because they fit the requirements set forth by the second amendment. Hunting rifles and handguns are not what the amendment addresses. Arms suitable for military use are what are prescribed.
Moving on to the third amendment.
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”.
In the colonial era, the practice of billeting British troops in private homes was a widespread. One of the complaints against King George III in the Declaration of Independence was “for quartering large bodies of armed troops among us”. Keeping in mind the Constitution is designed to limit federal powers, this is one more instance in which the federal government is likened to an enemy of the people.
There have been very few third amendment arguments, most recently a man in Nevada refused to allow local police to use his home in a surveillance operation, was subsequently arrested, and is using the third amendment as his defense. It should be interesting to see how that case goes, as local Police Officers are not quite federal “Soldiers”. In Griswold v Connecticut (1965), the third amendment was cited as protecting against government intrusion in a “Right to privacy” defense. The closest case I can find that comes close to a violation is Engblom v. Carey (1982), in which National Guardsmen, fitting the description of soldiers under the Militia act of 1792 (see above) in which a state militia member can be called to federal service, were quartered in homes. In this case, the homes were owned by the State of New York, and were compensation for prison guards. The guards went on strike and the state called in the National Guard to fill in, housing the replacements in the striking guards homes. If you’re on strike do you still receive compensation? The state won the case on a technicality (Immunity of State officials from suit from unknowing violation of the law) so the third amendment complaint is not satisfactorily addressed.
Next we’ll pick up with the fourth amendment, which fits nicely with the fifth. See you then