English. What a language! Words come and go and some even change meaning. The flavor of language today is different from eras past. If language were a meal, the usage of the 18th century, the language of the Constitution, would be plated and served five course dining, while language today is more akin to take-out Chinese scooped from boxes.
Usage contrasts are stark within the constitutional amendments that have been written over time. If we read the Bill of Rights, written in 1789, we find ourselves plodding along, reading and rereading trying to be sure we’re understanding the “thereofs”, the “whereins”, and phrases like “twice put in jeopardy.” Those are all still meaningful, but do not share a cadence with today’s language. If we skip to Amendments 17-27, the last ten, all written in the 20th century, the reading makes for more easily accessed comprehension. “The right of citizens of the United States to vote … shall not be denied …”–easy-peasy.
If we were to randomly select an early amendment to consider for revision–oh, let’s say maybe the Second Amendment–we could find ways to modernize the language and make the meaning more fit for 21st century consumption. There is precedent for amendment revision. The 17th was revised in 1992 after being in effect since 1913.
Way back in 1789 the word “Militia” (note the capital M still being used for nouns from our Germanic language roots) had a definite and standard meaning. Militias were a group of citizen soldiers who were enlisted within every state to serve as protectors of our country from invaders domestic or foreign. There was no confusion because state militias were the only official army in the country. The national army was, for the most part, disbanded after the Revolutionary War due to fear by some that a strong government run military could be used tyrannically over citizens, and conversely by others who feared, due to poor treatment showered on soldiers by the government–like not paying them–the army could exercise a coup d’état. There was conflict of thought even then, but the result was 13 state militias to serve when needed.
Slowly, a national army grew, especially after the Civil War. Citizen militias were replaced by the standing military as a primary force for defense. Since 1636, “National Guard” and “militia” were synonyms until Congress took control of the National Guard through the National Defense Act of 1916. The Act called for the name change, making the state-run militias obsolete in favor of the, now federally managed, National Guard.
Law the Second Amendment created has been replaced by statute–the 1916 Defense Act. Therefore, to be accurate the first words of the amendment should be revised to read: “A government regulated National Guard, being necessary to the security of a free state …” That is the law today, making the rest of the amendment about keeping and bearing arms moot and in need of its own consideration if private citizen gun ownership is to be addressed at all in the Constitution.
To further conflict, the word militia has evolved into two distinct meanings. One is the original, and obsolete meaning from the Second Amendment–a citizen band in support of the national army. The other definition for militia, in common use today, is an armed aggressor and enemy of the government. Modern supremacist groups have formed militias that band together prepared to fight against any perceived tyranny foisted by the U.S. government. Therefore, any modern reading of the Second Amendment, as it is written, gives the impression the Constitution is calling for a band of armed insurgents against the government. Today’s self-appointed, supremacist militias that hide out in camps in wilderness areas do so explicitly to avoid being “well regulated.” 240 years of language evolution have made the entire amendment hazy.
Also, what wouldn’t be clear to the fine folks who wrote the amendment, is the evolution of “arms” (or Arms) over the years. When they were writing the choice was pretty much a one-shot pistol or a one-shot musket. The Founding Fathers would be agog over what “arms” have become.
The Constitution is rife with compromises and limitations–there’s the three-fifths of a person compromise, and the whole system of a bicameral Congress for example. The Founding Fathers were careful with what they were writing, so to say that if they had had a chance to limit the type of gun available to citizens, from hundreds of choices, they likely would have.
There is another sanctioned remedy beyond revision to the obsolete and confusion riddled Second Amendment. We could go the 21st Amendment route and completely repeal the Second, like we did with prohibition. That way the Second would still be part of the Constitution, just invalid in modern applications. Then we could rely on the 10th Amendment, like we did licensing alcohol manufacture and sale after the repeal of the Volstead Act. Because militia and arms would no longer be enumerated, states and people decide the legality of gun ownership in this country with full knowledge of what is available.
There, we’ve fixed the ambiguities of the Second Amendment. Let’s move on to the Third. It’s been ages since any army Colonel has tried to require me to quarter a soldier in my house …