America should not be having a gun debate. That’s because the Second Amendment isn’t a puzzle. It was a straightforward fix to a very particular problem that was relevant then and not relevant now. The good news? Within that fix is our fix – the one we need to solve America’s intractable gun problem. The fix is the word that ISN’T anywhere in the 2A. “Own”. I dare ya! Point to the word “own” in the Second Amendment and good luck finding it. It isn’t there because individual gun ownership was never the point.
James Madison – the amendment’s author – knew perfectly well what “own” meant. But the 2A was solving a whole other problem: some of the states feared that an overzealous federal government would try to assert military dominance over the states. The Second Amendment gave the states the right to maintain well regulated militias (we call them National Guards these days) to defend themselves should the federal government over-reach.
The fears that motivated Madison to write the amendment disappeared a long, long time ago. The 2A solves a problem we no longer have while creating one we should never have had to begin with!
The citizens who joined the militias would be like any American signing up with their state’s National Guard today. When they show up for training or their service, Joe Citizen isn’t taking his gun with him, he knows the Guard will provide him whatever firearms he needs. And then, when Joe’s obligation to the Guard is fulfilled, Joe will hand the Guard back his firearm and go home. That’s because the weapons were never Joe’s. They always belonged to the well regulated militia. Just like the Second Amendment says.
Well Regulated – Yes! Ownership – No!
The gun lobby invented the nonsense that the 2A is a “Have All The Guns Ya Want!” amendment. The stone cold fact is the 2A is all about regulating guns! That’s why the amendment frames itself using the word! It’s not just a “militia”, it’s a “well regulated” militia. Regulations are the point. Gun ownership isn’t. That’s why James Madison – the amendment’s author – avoided the word “own”. He used “keep” and “bear” instead because he knew: neither equals “own”. There simply is no right to individual gun ownership anywhere in the Constitution. And especially not in the Second Amendment.
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.The “gun ownership”-free Second Amendment text.
The Constitution, the Bill of Rights and the rest of the amendments are written in “Contract English”. Our contract law is based on the Constitution’s view of private ownership. Madison knew quite well what “ownership” was. He could easily have written the 2A so as to make gun OWNERSHIP a fait accompli – just by using the word “own”. He didn’t.
Ever rent a car or an apartment? Ever read the contract? You get to “keep” and “bear” the car and the digs. But do not think for two seconds that you own them. You don’t!
Scalia & His Heller Sleight Of Hand
Antonin Scalia agrees with me here. He, too, acknowledged – when he wrote the Heller decision – that the word “own” appears nowhere in the 2A. That’s why “own” also appears nowhere in Heller. Strange, no? That a decision we think makes gun ownership pretty ubiquitous never uses the word “own” in relation to guns!
Scalia uses one other word – in his closing: “possess”. He used “possess” in a bit of sleight of hand to bamboozle us into not asking about the word “own”. It turns out, one definition of the word “possess” is “own”. Okay – fair enough! But would Scalia ever equate “possess” with “own” in a contract where someone else possessed something he owned? Of course not!
Scalia knew he couldn’t use “own” in Heller because to do so, first he’d have to explain why “own” isn’t in the 2A.
Okay, so what are we to do with this – the fact that we’ve been living in bullshit’s shadow? Do we simply shrug our shoulders – as always – and wish someone would do something while refusing to change how we think? That won’t solve this problem!
The Definition Of Madness
The very first step must be toward our thinking. We are the definition of madness – doing something again and again, getting the same result, and never changing.
How many more Americans must die? Must we really tolerate angry men hunting our children? Does the majority really have to endure what they insist they don’t want? Can a word that doesn’t appear in the 2A really get to be the last word on public safety in America?
There simply is no right to individual gun ownership anywhere in the US Constitution. We need to stop pretending that there is.