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Edited on Fri Nov-14-08 07:25 PM by The Magistrate
More than most items of the Constitution, the Second Amendment bears the marks of its time. It embodies a particular view of political organization, takes one side of an emerging debate concerning military organization in the late eighteenth century, and reflects existing conditions of economic feasibility and military technology, colored by a somewhat romanticized view of the events in the recent Revolution. Because it is the least appreciated, the second item enumerated might be best gone into first.
Experience of warfare in Europe during the eighteenth century had begun to disclose certain limitations to the effectiveness of the typical standing armies of the period. Chief among these were cost of maintenance, and isolation from the society they served. These made them peculiarly brittle instruments when wars moved beyond the usual limited engagements over dynastic trifles to questions of serious national existence, such as emerged in the course of the Seven Years War, which might well have eventuated in the destruction of Prussia as an independent state, and more or less bankrupted the Bourbon monarchy of France. In both countries students of the military art began to formulate the idea of 'the nation in arms' as a better implement for war than the quasi-mercenary standing army, feeling that this could harness the full power of the nation more effectively, and more cheaply, at least in money terms, and that it would prove a more reliable and more dedicated implement in serious conflict. It was in some ways as much a throw-back to the old medieval 'heer' as it was a forward looking idea, but it was certainly to prove its value in the wars of the French Revolution, and set the pattern for industrial war in the twentieth century. It did not gain much footing in its earliest days, however, and for good reasons flowing out of the state of military technology and actual social patterns at the time.
Persons whose view of the military art of this period is conditioned by visions of 'minutemen' fighting 'Indian style' enjoying great success against serried ranks of 'redcoats' miss completely what the state of the art actually was, and just how lethal an implement those serried tanks were. A half-company of sixty men in rank, firing three rounds per minute in volley, put out about the same volume of fire in that time as a light machine team in the Second World War period equipped with a typical air-cooled, drum or clip fed weapon like a Degtyarev DP or a Bren, and had about the same tactical utility in actual practice. The problem was how to condition men to work precisely, in unison, despite the tremendous fear, and frequent bloody demonstration of just how well founded that fear was, and to hold them in position to do the work when it had to be done. This required a great deal of practice in the mechanics of loading and firing, and the inculcation of a habit of unthinking obedience. It took some time, and a good deal of mind-numbing brutality, to make a good soldier. Simply knowing how to load and prime and pull a trigger was not nearly enough. Herding men close was not just a function of the need to concentrate fire in order to provide by mass effect what individual accuracy could never achieve. The aristocrats officering armies then were under no illusions that the men they directed were fired by a dedicated patriotism and willingness to uphold the social order of their country. But in dense mass, a sort of herd instinct takes over, a corporate identity emerges in which men are loyal to their fellows, and even to their chiefs whom they have come to fear and respect, and this was viewed, and even today is viewed, as a far more certain cement to morale and fighting spirit than any other conceivable motivation. The fact is that men fighting in dispersion, in skirmish order, tend to 'funk it', to revert to individuals, acting more from individual interest, including individual survival, than otherwise. Men who feel no great attachment to a cause for which they are fighting simply cannot be trusted to fight properly on their own. Some will do so, certainly, but the general level of performance will be poorer, and this is particularly so when the soldier is a member of a degraded and exploited caste, uneducated, with no horizon of loyalty past immediate family and home village, as was always the case in this period in Europe.
English military organization, which the North American colonies necessarily inherited, retained a number of features more attuned to the 'nation in arms' concept than existed on the continent. From the Elizabethan period the principal military focus of England was naval, and army traditions and practices came up from the Civil War, fought by privately raised forces whether on the side of the Crown or Parliament. The standing army remained small, and greatly restricted in its operations by Parliament, to such a degree that logistical operations were wholly divorced from military command, while militia forces liable to emergency calling up were a considerable portion of the whole. Even regular forces retained a certain 'private' character, as a regiment was in some sense virtually the property of its establishing Colonel, but this was much more pronounced in militia bodies, which were often virtually private clubs consisting of a clique of gentleman officers whose retainers and tenants formed the rank and file. Training was sketchy, and the bodies viewed by regular officers as of little use for anything more strenuous than suppressing civil outbreaks, and indeed there were normally legal restrictions on employing militia forces outside England. In the North American colonies, bodies of this character in normal times were the nearest thing to 'regular' forces in existence, and militia in the old sense of the 'heer', the levying up of able-bodied men from some threatened district in time of emergency, was an important element of the military power available to deal with conflicts with the Indian nations, or rival European colonials. It was principally with forces of these types that the portion of the Seven Years War fought in North America was conducted, what we in this country are apt to call The French and Indian War.
Militia bodies of emergency levy character were, in the circumstances of the time, largely dependent for what effectiveness they had on the weapons possessed by the populace called to arms. The local authorities had no money to obtain and maintain stocks of muskets in store against the occasion of emergency use, the most they were likely to have was some small store of powder and flints. The populace had to bring its own fire-arms to the call, and often provide its own bullets and powder as well. In some jurisdictions, men were required to possess arms themselves, and sometimes paid a small bounty to assist with the cost of doing so. A goodly portion of the militia which eventually mustered against the Crown in the early days of the Revolution possessed their arms under such regulations. Standing militia bodies, on the 'gentleman's club' pattern, of course possessed their weapons privately, the cost often defrayed by the unit's patron, or by subscription or dues levied on officers and men in the ranks.
Popular founding myth to the contrary, the militia with which the Continentals commenced the Revolution did not perform to much good effect against the English army. Around the fringes of the main battles, where the conflict remained one of small scale and guerrilla character, the militia did perform effectively, but it was not in these places that the outcome was decided. Saratoga was about the only real victory of the militia over the regulars, and that fight was decided more by the isolation of Burgoyne than by any superiority of the militia as a fighting implement. The Continentals did not begin to win real victories over the English until, with assistance from France, they trained up regular forces of their own and employed them in the standard manner of armies of the period, that was best suited to the weaponry and human material available. Regular forces provided by France played an important role in securing victory, and indeed, the crowning stroke that secured the surrender of Cornwallis at Yorktown was a victory by the French battle fleet in the waters off Virginia. The fact is that the victory of the Revolution was secured by regular forces of standing army style, and even by the employment of the crowning regular technical force of the time, a fleet of ships of the line.
The chaos of the pre-Constitutional period, under the Articles of Confederacy, is another thing that has largely passed from the popular mind. The fact is that each state in that time regarded itself as a sovereign and independent country, separate from the rest as any two states in Europe. The political leadership within each state, which necessarily was the expression of the wealthiest elements of its society, certainly cherished this view in all cases, as this gave more scope to its local ambitions, and its pride of place. Bringing men fired by such sentiments into a functioning Union did require much compromise, and accommodation of these essentially irridentist attitudes. Federal government was indeed, at least on paper, hamstrung militarily, and the largely mythical power of 'the militia' elevated as a military check against the equally mythical phantasm of 'federal tyranny', as a means of lubricating the joining of the separate states into some semblance of a common central government. In fact, of course, it never did, and never has done, any such thing as provide a check against 'federal tyranny'. 'Federal tyranny' almost immediately was undertaken in the financial sphere, when the assumption of state debts was turned into a colossal swindle, and was imposed on residents of the Appalachian frontier, in the episode which has come down in history as 'The Whisky Rebellion". In that brutal repression, far from providing resistance to Federal tyranny, state militia, drawn from coastal districts, actively aided it. The nearest thing to militia providing 'resistance to federal tyranny' in our country's history is our Civil War, and of course the southern states' claim that they were 'resisting federal tyranny' because they did not like the outcome of the election of 1860 was stuff and nonesense, and stuff and nonesense in a most shabby and cruelly degraded cause.
The wording of the Second Amendment clearly reflects all these conditions of time and place, and viewed as an airy hypothetical, could be taken as having at least the potential to secure its apparent object. It postulates a circumstance in which the principal military force of the nation consists of militia under state direction, said militia to consist of both formal bodies maintained in existence as a species of club, and the potential for emergency levying up the population of free men en masse. Both these, in the condition of the times, required arms in no wise different from the arms of a contemporary standing army to be owned by private citizens, and that was indeed the case. The muzzle-loading musket or rifle owned by a farmer was no different from, or less effective than, the weapons employed by infantrymen of any army in the world; cannon indistinguishable from the field-pieces or naval pieces of any country were privately owned by merchant skippers and others. If the only consideration in military effectiveness were the grade of arms in men's hands, one could say the militia so fostered could prove a match for Federal regulars if it ever came to cases.
It is just as clear that these conditions do not obtain at present, and that this real meaning and intent of the Second Amendment has been wholly put aside, and put aside many years ago. Militia under state direction, more or less the various state National Guards, is a mere auxiliary to the national, Federal military forces, and is in no meaningful way under the direction of a state's governor as a military force. No actual mechanism exists for any governor to call up the able-bodied populace of his or her state to muster under the arms it possesses as an emergency military force, and certainly not to do so as a response to some incursion on the state's prerogatives by the Federal government. The complete dominance of Federal over state authority has been solidly established in our political institutions and customs, and while the charming fiction of state sovereignty persists, and even has some uses, it is mostly meaningless, and this state of affairs is not going to be reversed. It is flatly illegal, and will remain flatly illegal, for individual citizens to own in any meaningful quantity arms of similar grade and effectiveness to those employed by the armed forces of the United States. While a small number of automatic weapons are in private hands, under great and carefully vetted restriction, field guns, anti-tank and anti-aircraft missiles, battle-tanks, attack helicopters, fighter-bombers, frigates, aircraft carriers, etc., are conspicuously scarce in private hands. But in the world envisioned by the Second Amendment at its origin, all these things would be privately held, and garnished with an M-16 or a Kalashnikov, rigged for full automatic fire, in a closet in most homes throughout the land. Even if one were to envision the resistance to 'federal tyranny' taking the form of asymmetric, irregular warfare, this would require for its effect widespread ownership of, and expertise in the compounding of, and employment of, high explosives and blasting agents, detonators, means of remote triggering, and a host of other items sure to provoke police interest were one to set out to acquire them in quantity. Small arms, even small arms capable of fully automatic fire, are not the sinews of irregular resistance to a modern military force engaged in repression of a restive populace. The fact is that there is no meaningful capacity among the citizenry of the United States to resist its government in arms, and the Second Amendment does not provide today any such capability to the citizenry of this country, nor will it ever.
That the thing has outlived its actual, original purpose, is simply past argument, and what we are left with is the question of what purpose it serves now, in the actual present time when we live. Persons who respond that it remains 'a check on federal tyranny' simply are not being serious, and cannot be taken seriously. Just about all the declarations of what purpose the Second Amendment serves at present boil down to "I want to own a gun or guns, and it makes it my right to do so." In the present day, it is hard to press an argument that the desire to own fire-arms is more functional than emotional. The claim that a fire-arm is needed for self-defense is, as a matter of practical probability, mostly illusory. While it is certainly true that firearms are on occasion used as implements of self-defense, it is very unlikely any particular individual will actually be in a position to do this, and then do so successfully. Hunting can be an enjoyable sport, but is rarely a necessity. Target shooting is rum fun, without question, as is sky-diving, bungee jumping, drag-racing, and any number of other high-intensity experiences. Indeed, one of the less examined elements of this whole question is just how much fun, what a tremendous, intoxicating thrill it is, to shoot a gun. It is, as the phrase goes, some of the best fun that can be had while fully clothed. Firing a gun gives the shooter a tremendous rush of power; to pull the trigger is to be Zeus hurling a thunderbolt, to briefly experience the power of life and death in one's own hand, even if what the round is sent speeding towards is nothing but a sheet of paper. The attraction of this feeling ought not to be underestimated, and deserves honest examination, particularly on the part of those who sample its joy often. People crave intense pleasures, and are very skilled at providing reasons why they should partake of them again, and again, and again and again and again....
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