The 2nd and 3rd Amendments

We should periodically review assumptions that direct our beliefs.  The world may have changed so they are no longer accurate.  We may need to make structural changes to direct new behavior.

Businesses that don’t update their assumptions fail.  My 1980s minicomputer consulting clients no longer exist.  They were ex-pioneers who imagined their competition was still each other.  They were aware of networked microprocessor-based systems but not the implications of a competing technology with a cost advantage that was already tenfold.  Their customers were little harmed because they could simply switch to new suppliers.

A nation’s customers, its citizens, can be greatly harmed, however, because it’s not easy to switch to a new one.  Nations keep going where they’re headed like giant cruise ships whose passengers were happy enough for long enough so the captain assumes they always will be happy.  He’s still happy.  He doesn’t notice the passengers’ distress now they’re in Antarctic waters in summer clothes.

Just as businesses degenerate slowly then collapse when their structure is not kept up to date, so it is with nations and empires.  The structure of GM, for example, where each brand (Chevy, Buick, Cadillac, etc) was targeted to a distinct market segment within which it battled competitors later ossified into baronies whose leaders fought each other.  Our Congress in the USA has similarly degenerated into warring factions whose eyes are closed to new realities.

The problem is in part institutional.  Our direction is governed by a Constitution established two and a half centuries ago with no requirement for periodic update.  Let’s consider two Constitutional Amendments to illustrate this issue.

The 3rd Amendment decrees that: “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.”  That is just about as useful today as prohibiting an elephant from being quartered in our house without our consent.  Citizens once needed such protection.  We no longer do.  This Amendment is now so completely irrelevant that must people are unaware it even exists.

The USA 3rd Amendment echoed the English Bill of Rights 1689 that prohibited the monarch from “raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law”  and was in response to 1760s and ’70s British Quartering Acts that required American colonies to pay the costs of British soldiers here and colonists to provide space for them to live.

The English Bill of Rights was passed when Protestant William and Mary were invited by parliament to replace Roman Catholic King James II and become joint sovereigns of England.  It set limits on the powers of the crown and among other things reestablished the right of Protestants to own firearms.  James II had tried to disarm Protestants and maintain a standing army.  Civilians were at that time required to help suppress riots.

So the English Bill of Rights was also the basis for the 2nd Amendment to the US Constitution as one of our Bill of Rights which decrees that: “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.”  It was adopted on December 15, 1791, along with the rest of the Bill of Rights and, interestingly, is the only amendment to the Constitution that states a purpose.

There was at that time substantial public opposition to a standing army from both Anti-Federalists and Federalists.  On May 8, 1792, Congress passed an Act decreeing that:  “every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years […] shall severally and respectively be enrolled in the militia…[and] every citizen so enrolled and notified, shall, within six months thereafter, 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 [and etc] and shall appear, so armed, accoutred and provided, when called out to exercise, or into service”.

The purpose of the 2nd Amendment, to provide for “the security of a free state“, has for many years been met in a different way.  We now have a standing militia armed with weapons whose power could never have been imagined in the days of muskets and firelocks.  Unlike the 3rd Amendment, however, its provisions are still relevant but are applied to a different purpose.

It would be better to retire both the 2nd and 3rd Amendments and draft new legislation suited to the purpose today.

People still want successors to muskets and firelocks for some of the same reasons left unstated in the 2nd Amendment, to hunt animals for food, defend themselves if police are unavailable, or just recreation.  It would be far easier to establish broadly acceptable legislation specifying who could own what firearms if we were now drafting legislation specifically for that purpose.

5 comments on “The 2nd and 3rd Amendments

  1. Good morning, Martin! The Constitution is more flexible than your comment implies. The system of judicial review and stare decisis (building upon past legal decisions) allows ample room to legislate current cultural development as it occurs. While these changes do not necessarily happen quickly (not certain that even the best run giant companies benefit from knee-jerk major policy changes), there is certainly process for them to occur. By example, there is absolutely no mention of birth control, abortions, or civil rights for women and Americans of African descent in the Constitution. As these issues became relevant, however, activist courts echoed public sentiment and sense of evolving fair play and their decisions refleced same. Roe v Wade is the most accessible decision to most in terms of understanding the evolution and implementation of public sentiment as binding law as related to a Constitutional concept. The Court grabbed the fundamental right to privacy guaranteed by our Constitution and bootstrapped onto it a woman’s right to privacy to her own body and therefore the right to remove a fetus if she was so inclined. More recently, the Supreme Court determined that the Affordable Health Care Act and its individual mandate was an appropriate use of Congress’ constitutionally granted power to tax. Without this act of judicial activism, the Act would have gone down as impermissable. But, the Court chose to do what it perceived as the “right thing” given social pressures at the time. I am absolutely certain the founding fathers, whether Federalist or Anti-Federalist never came close to contemplating or intending these interpretations of the document. Similarly, I would expect they did not contemplate the potential effect of assault weapons merged with random violent actors. However, there is already process in place to implement srictly-tailored legislation that is not under or over inclusive in scope to effect some measure of “gun control.” Assault weapons in particular have been mostly banned for many decades so I would expect that many people who do possess them do so illegally and so no amount of legislation or constitutional revision would change that. But, just like the abortion issue, proponents and vocal advocates of the “right” are so concerned about the slippery slope that they employ giant armies of lobbyists and public supporters so that no legislation is passed that can address any of the problems of excessive excersize of the “right”. I submit that the problem is not constitutional as much as it is that the issue itself is multi-faceted with both extremes convinced they are correct and with neither willing to bend.

    • Thanks so much for your comment, Julie. We agree entirely about your closing point: “extremes convinced they are correct and with neither willing to bend”. I just used different words: “warring factions whose eyes are closed to new realities”. I also agree that knee-jerk major policy changes are never a good idea, and I agree incremental changes are best most of the time. But…

      In the course of incremental change we may forget the original purpose, which for the 2nd and 3rd Amendments no longer exists. The 2nd Amendment makes it harder to agree about changes because it states as an absolute right what most of us want restricted.

      On the other hand, about Roe v Wade, there is as I see it no “fundamental right to privacy guaranteed by our Constitution”. We built a limited right to privacy by extrapolating from the clause about due process and extended that to cover abortion.

      On the third hand, I over-stated what I think because I don’t really have a better proposal than building on case law. All I’m suggesting is we should from time to time verify that the problem we’re trying to solve still exists and hasn’t been replaced by a different one.

      There are some rights that can only be defined by evolving case law. Privacy is one. The NSA copies and stores all our electronic communications, our smartphone’s location is always known, our actions in public places are captured and processed with facial recognition. We have much less privacy than most people imagine and I’m OK with that because it helps protect me from terrorist acts. The limits on privacy can only be defined incrementally because the opportunities and threats created by new technology keep evolving. It’s OK with me that in my interpretation we have no fundamental right to privacy because I think that helps us stay focused on the current purpose of privacy law.

    • You know, it’s funny, but I don’t think the Constitution gives us a right to breathe air without chemical toxins in it, and it doesn’t guarantee us the right to drink water that’s uncontaminated with lead. I don’t think it guarantees anyone the right to either an education or health care, either. But without breathable air, drinkable water, and education and health care, life for millions of Americans will become Hell. I think the Preamble to the US Constitution, with its remarks about promoting the general welfare, does envision the US government taking many different steps to advance, well, the welfare of the American people. I think it’s Constitutionally legal, within the letter of the law, and it’s within the spirit behind the Constitution for the government to promote clear water, clean air, an educated public and affordable health care because without all these things, the general welfare goes down the toilet. So I agree with you that these good things, these things that are almost essential to life, and to a civilized society are not necessarily natural rights. But I don’t care. I think we as a society should be promoting them anyway, and that the US government should be playing a big role in that effort. As for violence , the threat of violence, uh, how do you think the American Revolution was won? How do you think the United States expanded from being a relatively small nation consisting of just 13 states along the Atlantic seaboard, to being a huge nation of 50 states stretching from the Rio Grande to the Canadian border, and from Plymouth Rock to Hawaii? How do you think the slaves were freed and the Union was preserved in the 1860s? How do you imagine that several hundred million white Caucasians, by the year 2000, ended up owning and controlling millions of acres of real estate that just 500 years ago was the exclusive domain of the Native American tribes? I’ve read Ayn Rand on the supposed virtue of selfishness so long as the selfishness is never accompanied by force or the threat of force. But throughout history, how many successful societies can you name that weren’t established, preserved extended through force or the threat of force? England? France? The USA? Germany? Japan? The Netherlands? Italy? Russia? China? Where in the world do you see anybody owning, enjoying the use of private property or natural resources, where there’s no prior history of force the threat of force? Was this answer helpful?

  2. Just a few things to address in your response, Martin. There is a misconception that an enumerated right is the same as a fundamental right and that these rights are, because of their specific inclusion in the body of the Constitution “absolute” and that absolute means they cannot be regulated. That is not correct. All enumerated and additional fundamental (including privacy..which is fundamental though not enumerated) rights including penumbra which are ennunciated by the USSC from time to time are subject to regulation.

    I included Roe v. Wade only as an example to illustrate flexibility in interpreting the Constitution and applying it to evolving social and economic issues. The procedural due process 14th Amendment argument forward by the plaintiff in that case was a threshold argument advanced in order that the USSC could determine that it had jurisdiction to hear the case. Any other determination of the 14th A issue would have meant that the Court was not free to limit the states’ rights to legislate the issue as they saw fit. After the threshold determination that there was a fundamental (though not enumerated or absolute) right to privacy, the Court was able to rule that the contemplated state legislation (all abortions illegal in TX except if mother’s life was at risk) was not permissible based on applying the appropriate legal tests..which vary depending on the stage of pregnancy. Judge Rehnquist dissented from the majority opinion because of his concern that a fundamental right such as privacy should never be subject only to a rational scrutiny test..meaning that it would be too easy for states to restrict the individual’s fundamental right based on the opinion as written.

    My point in attempting to clarify the above goes back to the misconception that the existence of the 2nd Amendment as an enumerated fundamental right means that it cannot be regulated. The word “absolute” is misleading and I would suggest that those politicians (on both sides of the aisle including the president) who use the word do so to motivate supporters who do not understand what the word means in the context of the Constitution. The Congress is and has always been free to legislate restrictions on the 2nd A and any other of the guarantees contained in the Bill of Rights.

    I am in agreement that rights such as privacy are subject to evolving interpretation and would add to it the 2nd A along with the multiple aspects of the 1st A and 4th A among others that I have not contemplated. I do not agree, however, that because the original purpose of an amendment might appear to be obsolete, that the concepts it embodies necessarily diminsh along with the motivating circumstances of the authors. Their (authors of the Constitution) work was predicated on extensive studies of governments through the ages and I would suggest that even though the amendments comprising the BOR were modeled on the English Bill of Rights, that the struggles of people and their governance and governors is timeless and ageless. After all, does human nature really change?

    • Thank you again, Julie. The material you told me about in a separate message will be very helpful when you get a chance to post it here. I’m completely ignorant about the process of legal testing of Constitutional law.

      I point out to people every time I get an opportunity that the 2nd Amendment is not an absolute right. We’ve already excluded grenades and other kinds of “firearms” from civilian ownership, and we already have laws about guns specifically. We need to think what changes we, as a society, want in those laws.

      What I’m not clear about in your comment is whether we have any “absolute” rights (I think not), and I don’t understand a “fundamental though not enumerated right”. You say privacy is an example but how can we know it is a fundamental right if it isn’t stated as such in the Constitution? Does the Supreme Court posit fundamental rights as the intent behind enumerated rights?

      I do agree the concepts embodied in an amendment whose purpose is obsolete may still apply. I don’t see that being the case with the 2nd Amendment. Others do, but that’s my underlying point. Our legal system is not going to change so it’s no more than an academic point, but… I believe we’d be better positioned to reach consensus, on firearms law as an example, if we began by defining the purpose of the law in our society in this century. It confuses the issue if we start by trying to agree which bits of the concepts the Founding Fathers had in mind two and a half centuries ago are still applicable. Human nature does not change but technology and its impact on what we can do with our nature have changed fundamentally.

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