The Second Amendment in 2017

The Second Amendment in 2017

© David Burton 2017

The Second Amendment


     Let’s start with some numbers. Here are some facts provided by the British Broadcasting Corporation (BBC). “Just the facts, ma’am.”

     In the United States in 2015, “There were 372 mass shootings . . . killing 475 people and wounding 1,870 . . .
      - - -
     “Some 13,286 people were killed in the US by firearms in 2015 . . . and 26,819 people were injured [those figures exclude suicide]. . .
     “. . . The number of gun murders per capita in the US in 2012 - the most recent year for comparable statistics - was nearly 30 times that in the UK, at 2.9 per 100,000 compared with just 0.1.
     “Of all the murders in the US in 2012, 60% were by firearm compared with 31% in Canada, 18.2% in Australia, and just 10% in the UK.
     “So many people die annually from gunfire in the US that the death toll between 1968 and 2011 eclipses all wars ever fought by the country. . . there were about 1.4 million firearm deaths in that period, compared with 1.2 million US deaths in every conflict from the War of Independence to Iraq. [Emphasis mine]
     “No official figure exists but there are thought to be about 300 million guns in the US, held by about a third of the population. That is nearly enough guns for every man, woman and child in the country. [Emphasis mine]
     “The right to own guns is regarded by many as enshrined in the Second Amendment to the US Constitution, and fiercely defended by lobby groups such as the National Rifle Association . . .
     “The US spends more than a trillion dollars per year defending itself against terrorism, which kills a tiny fraction of the number of people killed by ordinary gun crime.
     “According to figures from the US Department of Justice and the Council on Foreign Affairs, 11,385 people died on average annually in firearm incidents in the US between 2001 and 2011.
     “In the same period, an average of 517 people were killed annually in terror-related incidents. Removing 2001, when 9/11 occurred, from the calculation produces an annual average of just 31.” (Ref. 1)

     “Each year in the United States, approximately 30,000 people, or 80 per day, die from gun violence. . . The murder rate in America is 15 times higher than in other first-world countries; the majority of these murders are committed with guns. As for the notion that guns are necessary in order to defend oneself from an intruder with a gun: One study of three U.S. cities revealed that injuries involving guns kept at home almost always resulted from accidental firings, criminal assaults, homicides and suicides by the residents, not self-defense scenarios. . .” (Ref. 2)

     Here are a few more final facts. Gun-related deaths in America wildly outpace our peer nations. More people now die by guns than by cars. And finally, America's gun violence problem goes far beyond homicides: Most gun-related deaths are by suicide.


     According to gun enthusiasts, the Second Amendment – the second of the first ten amendments to the U.S. Constitution which are known as the Bill of Rights - protects the right of the people to keep and bear arms. It was adopted on December 15, 1791, some two and a quarter centuries ago. The Supreme Court of the United States has ruled that the right belongs to individuals, while also ruling that the right is not unlimited and does not prohibit all regulation of either firearms or similar devices.[4]

     The Second Amendment to the U.S. Constitution reads:

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.(Ref. 5) It should be noted that the introductory phrase "A well regulated Militia, being necessary to the security of a free State" conveniently gets ignored by gun rights advocates.

     Let’s remember that the revolution against England was fought when the colonies did not have a standing army. General George Washington recruited members for his army but the numbers were remarkably insufficient to win that war. At that time, the individual colonies had militias comprised of civilian volunteers. The colonies did not provide guns and ammunition for those volunteers. Individual members had to provide their own. It was the citizen-soldier militias from each of the thirteen colonies that provided the much-needed additional troops to General Washington.

     Immediately following the Revolution, the colonies wanted to ensure that the militias would be available to be called upon to defend the united colonies whenever the need arose. Since the volunteer members of the militias at that time had to provide their own arms, the Second Amendment to the Constitution began with the introductory words, "A well regulated Militia, being necessary to the security of a free State", quite clearly showing that the words, “the right of the people to keep and bear Arms” applied to citizens being called to serve in the colonies’ (and later the states’) militias. That introductory phrase is no longer valid. The United States for many years has had a standing army with which to defend the nation. State militias, as such, no longer exist, having been supplanted by the National Guard. The members of these various National Guard units - the successors to the militias of the original colonies - do not have to provide their own arms. Consequently, the introductory phrase of the second amendment no longer applies and, if it no longer applies, the remaining words of the second amendment, likewise, no longer have standing. Indeed, today’s gun owners are not a well, or otherwise, regulated militia. Today, the closest thing to the militias of America’s War of Independence are various extremist and fringe groups – groups such as the neo-Nazis, the Ku Klux Klan, the Black Liberation Army and the Weathermen. America’s citizen-soldiers of the 21st century are not the colonial Minutemen of the 18th century.

     So, if gun advocates want to have a legal right to bear arms under the Constitution of the United States, they should work to have an amendment passed that simply states: “The right of the people to keep and bear arms shall not be infringed.” - with no preconditions.[6] In any case, it should be apparent to all that the Second Amendment is no longer applicable and should be repealed forthwith.

     “That well-regulated militia {in the second amendment} was replaced by a free standing army two hundred years ago. The founding fathers in all their wisdom could not foresee the future. What we have today is the result of a centuries old document and politicians who refuse to revisit it.” (Ref. 7)

     “As America grapples with a relentless tide of gun violence, pro-gun activists have come to rely on the Second Amendment as their trusty shield when faced with mass-shooting-induced criticism. In their interpretation, the amendment guarantees an individual right to bear arms—a reading that was upheld by the Supreme Court in its 2008 ruling in District of Columbia. v. Heller. Yet most judges and scholars who debated the clause's awkwardly worded and oddly punctuated 27 words in the decades before Heller almost always arrived at the opposite conclusion, finding that the amendment protects gun ownership for purposes of military duty and collective security. It was drafted, after all, in the first years of post-colonial America, an era of scrappy citizen militias where the idea of a standing army—like that of the just-expelled British—evoked deep mistrust.
      - - -
     “. . . The Heller decision, written by Justice Antonin Scalia, is rooted in originalism, the concept that the Constitution should be interpreted based on the original intent of the founders. While Waldman emphasizes that we must understand what the framers thought, he argues that giving them the last word is impossible—and impractical. ‘We're not going to be able to go back in a time machine and tap James Madison on the shoulder and ask him what to do,’ he says. ‘How the country has evolved is important. What the country needs now is important. That's certainly the case with something as important and complicated as guns in America.’
      - - -
     “. . . When the Supreme Court ruled in Heller, Justice Scalia said he was following his doctrine of originalism. But when you actually go back and look at the debate that went into drafting of the amendment, you can squint and look really hard, but there's simply no evidence of it being about individual gun ownership for self-protection or for hunting. Emphatically, the focus was on the militias. To the framers, that phrase ‘a well-regulated militia’ was really critical. In the debates, in James Madison's notes of the Constitutional Convention, on the floor of the House of Representatives as they wrote the Second Amendment, all the focus was about the militias. Now at the same time, those militias are not the National Guard. Every adult man, and eventually every adult white man, was required to be in the militias and was required to own a gun, and to bring it from home. So it was an individual right to fulfill the duty to serve in the militias.
      - - -
     “. . . In 1991, former Chief Justice Warren Burger said that the idea that the Second Amendment recognizes an individual right to gun ownership was ‘a fraud’ on the public. That was the consensus, that was the conventional wisdom.
     “The NRA {National Rifle Association}has been around for a long time. It used to be an organization that focused on hunters and on training. In 1977, at the NRA's annual meeting, activists pushed out the leadership and installed new leaders who were very intense, very dogmatic, and very focused on the Second Amendment as their cause. It was called the ‘Revolt at Cincinnati.’ From there, the NRA and its allies waged a 30-year legal campaign to change the way the courts and the country saw the Second Amendment. And they started with scholarship. They supported a lot of scholars and law professors. They elected politicians. They changed the positions of agencies of government. They got the Justice Department to reverse its position on what the amendment meant. And then and only then did they go to court. So by the time the Supreme Court ruled, it sort of felt like a ripe apple from the tree.
    - - -
     “. . . The thing about the Heller decision . . . was that Justice Scalia said this was the ‘vindication’ of his approach of originalism. But when it actually came time to doing the history, he skipped over the actual writing and purpose of the Second Amendment. Out of 64 pages [in the decision], only 2 deal with the militias. Which is what the founders thought they were talking about. One of the things that . . . people {should} take away from this is that the original meaning is always important, but it is not the only way to interpret the Constitution.
      - - -
     “. . . {In} Heller, there was a big shift in how the case was argued: There were many references to colonial America, and very little about current gun laws and current patterns of violence. . .
     “. . . since Heller, there have been dozens of cases in lower courts. Heller said: Yes, there is an individual right, but it can be limited. And the extent of the limits wasn't really clear. Well, dozens of judges have ruled since then, and overwhelmingly, they have upheld district gun laws. They've said, ‘Yes, there's an individual right, but society, too, has a right to protect itself.’ So maybe Heller's importance is not so great. And as this judicial consensus has developed across the country to uphold gun laws, we haven't yet heard from the Supreme Court one more time. So I think the Supreme Court isn't done yet.” (Ref. 8)


     Australia provides an example of what can happen with the application of modern and reasonable gun control laws. In 1996 at the Port Arthur historic site in Tasmania, one of Australia's most popular tourist destinations. A mass shooting occurred. “The dead numbered 35, with more than 20 others injured. . .
     “This was not the first shooting massacre {Australia} had suffered, but it was the largest in living memory. The tragedy ignited an explosion of public outrage, soul-searching and demands for better regulation of guns. {Australia} changed {its} laws. As a result, gun deaths in Australia . . . dropped by two-thirds, and {they} have never had another mass shooting.
     “Every country is unique, but Australia is more similar to the US than is, say, Japan or England. {They} have a frontier history and a strong gun culture. Each state and territory has its own gun laws, and in 1996 these varied widely between the jurisdictions. At that time, Australia's firearm mortality rate per population was 2.6/100,000 – about one-quarter the US rate, according to data from the Australian Bureau of Statistics and the US Center for Disease Control. {By 2013} the rate {was} under 1/100,000 – less than one-tenth the US rate. Those figures refer to all gun deaths – homicide, suicide and unintentional. If we focus on gun homicide rates, the US outstrips Australia 30-fold.
     “The 1996 reforms made gun laws stronger and uniform across Australia. Semi-automatic rifles were prohibited (with narrow exceptions), and the world's biggest buyback saw nearly 700,000 guns removed from circulation and destroyed. The licensing and registration systems of all states and territories were harmonized and linked, so that a person barred from owning guns in one state can no longer acquire them in another. All gun sales are subject to screening (universal background checks), which means you cannot buy a gun over the internet or at a garage sale.
     “Gun ownership requires a license, and every sale is subject to a 28-day waiting period. The licensing process considers not only the applicant's age and criminal convictions, but also a range of other factors relevant to possession of a product that is (a) designed for killing and (b) highly coveted by people who should not have it. Relevant factors include the applicant's living circumstances, mental and physical health, restraining orders or other encounters with the law, type of gun desired and for what purpose, safety training, storage arrangements, and the public interest.
     “Police make whatever inquiries they think necessary to inform the decision on whether (or under what conditions) the license should be granted. This can include checking with neighborhood police, the family doctor and especially spouses or partners. There are many red flags that do not appear in an automated computer record of criminal convictions: substance abuse, mental instability, conflict at home or at work, to name a few. Another risk factor is whether granting the license might make guns accessible to another household member whose own circumstances would disqualify them from a license – for example, a depressed teenager or a person with criminal convictions.
     “The screening process serves to block dangerous or irresponsible candidates, but also underscores for applicants and their families that bringing home a gun is a serious decision which affects the entire household, and indeed the entire community. Many applicants abandon their request during the waiting period – dissuaded by family members, or simply because the momentary enthusiasm for gun ownership passes.
     “Australia also requires a justifiable reason for the type of weapon the applicant wants to own. If you say you plan to hunt rabbits, your license doesn't allow you to {own} a high-powered rifle. And if you already have a couple of guns suitable for hunting rabbits, it becomes increasingly difficult to justify acquiring more. This is a measure against the accumulation of private arsenals. A significant legal and cultural difference between our two countries: Australia doesn't accept anticipation of killing another person (self-defense) as a reason for owning a gun. To qualify for a handgun license, you must belong to and regularly attend a target shooting club.
     “An important feature of a license is that it must be renewed every few years, and it can be cancelled or suspended if the bearer no longer meets the standard required – for example, due to domestic violence or a dangerous mental condition.
     “Australia didn't ban guns. Hunting and shooting are still thriving. But by adopting laws that give priority to public safety, {they} have saved thousands of lives.” (Ref. 9)


     The answer to the question of “How do we reduce gun violence in America?” starts with repealing the Second Amendment. Next, we have to get our legislators to stop succumbing to the bullying demands of the National Rifle Association (NRA) and other gun fanatics that keep guns in the hands of those who have little to no regard for human life and suffering. Finally, we need to begin the process of changing the weak federal laws that allow almost anyone access to a wide variety of deadly weapons.

     The truth is that Americans are hungry for action. The large majority of Americans want innovative, common sense reforms. Some of the more obvious reforms include:

  • Ban large capacity ammunition magazines. Large capacity magazines, some of which can hold up to 100 rounds, are the common thread uniting all of the major mass shootings in recent history. These magazines were prohibited under federal law until Congress allowed the 1994 assault weapons ban to expire in 2004. There's simply no reason not to ban them again.
  • Reinstitute the prohibition on automatic and semi-automatic firearms that was contained in The Federal Assault Weapons Ban (AWB) act of 1994. The ban was passed by Congress in 1994, but was allowed to expire in 2004.
  • Require a background check every time a firearm is sold. Under current federal law, a prospective purchaser only has to undergo a background check when buying a gun from a licensed dealer. If a person buys a gun from a so-called "private seller"—as is the case in an estimated 40 percent of gun sales every year—no background check is federally required. Uncounted numbers of convicted criminals and mentally ill individuals have exploited the "private sale loophole" to gain access to guns.
  • Make interstate gun trafficking a federal crime, and increase penalties for so-called “straw-man” sales in which someone buys a gun to deliver to a third party.
  • Make the owner of record of a firearm accountable for crimes committed with his or her gun
  • Require waiting periods for gun purchases so that background checks can be finished and to encourage buyers to “cool off” from any violent impulses that might be motivating them to buy a weapon.
  • Require training for those wanting to be issued a gun license.
  • Establish and maintain a registry of weapons.
  • Increase funding of the Alcohol, Tobacco, Firearms and Explosives (ATF) department to allow better enforcement of existing laws and of the needed new legislation.
  • Improve access to funding and data for researchers. Congress has, time and again, succumbed to gun lobby pressure to obstruct research into the development of smart, effective policies to fight gun violence, stopping the flow of data as well as money. The Centers for Disease Control and Prevention (CDC) once played a key role in supporting research into the public health concerns surrounding gun violence and the development of effective firearms laws. That was until Congress singled out guns in the CDC's funding bill with language stating that, “None of the funds made available for injury prevention and control…may be used to advocate or promote gun control.”
     As evidenced by Australia’s experience with stricter gun control regulations, gun laws do matter! [10]

     Coupled with new and better gun control laws, there is need for increased gun law enforcement and harsher penalties for gun law violations. While it is unreasonable to expect the elimination of all gunshot inflicted deaths and injuries, it can be expected and it should be demanded that the number of such deaths and injuries be greatly reduced, starting immediately. We as a nation need to put a stop to gun fanatic lobbying and remove pandering politicians from office.

     Repealing the Second Amendment is in keeping “with the spirit in which the Constitution was drafted. The Bill of Rights belongs to a document that was designed to be changed; indeed, it was part of the genius of our founders to allow for a process of amendment. The process is appropriately cumbersome, but it is not impossible. Since its adoption in 1787, the American people have chosen to amend the Constitution 27 times. A century ago, leaders like Theodore Roosevelt and Woodrow Wilson raised serious questions about the Constitution. Amendments soon followed, including provisions for a federal income tax, the direct election of U.S. senators, women’s suffrage and the prohibition of alcohol. The 21st Amendment, which repealed prohibition, established the precedent for {repealing the Second Amendment}.
      - - -
     “The Constitution is mere human law. It is excellent law, but it is not divine law; it is not revelation. We should be wary of amending the Bill of Rights. We should also be wary of idolizing it. The Constitution is the man-made law of a self-governing people; the people, therefore, are entitled to ask basic, critical questions about it. In our time, is a given constitutional provision a good law or a bad law? Does it promote the common good? The secular dogma of constitutional immutability must yield to careful, critical inquiry.
      - - -
     “Repealing the Second Amendment will not create a culture of life in one stroke. Stricter gun laws will not create a world free of violence, in which gun tragedies never occur. . . Though we cannot create an absolutely safe world, we can create a safer world. This does not require an absolute ban on firearms. . . The world {can be} a world with far fewer guns, a world in which no one has a right to own one . . .” (Ref. 2) In regard to the “right to own a gun”, the violent world around us demands that gun ownership should be taken not as a right but as a privilege granted by the appropriate governmental body.

     Today, in the 21st century, the time has long since passed for repealing the outdated and irrelevant Second Amendment to the constitution and for instituting meaningful federal and state laws to put an end to the escalation of gun crimes in the United States.

     Alternatively, the Supreme Court can rule, once-and-for-all, that the Second Amendment applies only to the maintenance of a “well regulated militia”, which was the original intent of the authors of the Bill of Rights. In today’s America, the need for this “well regulated militia” does not exist and there are none. The Second Amendment may have been relevant in 1776 – it is not relevant in the 21st century, more than 240 years later! We cannot go on pretending to be living in a long-gone outdated era with the result that tens of thousands of Americans are being killed and maimed each and every year with guns. We can and must do better.

  1. Guns in the US: The statistics behind the violence, BBC News: U.S. & Canada, 5 January 2016.
  2. Repeal the Second Amendment, America, The Jesuit Review, 25 February 2013.
  3. More Young Americans Now Die From Guns Than Cars, Dan Diamond, Forbes, 26 August 2015.
  4. Second Amendment to the United States Constitution, Wikipedia, Accessed 3 May 2017.
  5. Second Amendment, The Free Dictionary, Accessed 3 May 2017.
  6. Second amendment no longer applies, Wayne Robbins, St. Louis Post-Dispatch: Letters, 29 January 2010.
    23 September 2013.
  8. The Second Amendment Doesn't Say What You Think It Does, Hannah Levintova, Mother Jones, 19 June 2014.
  9. When will the US learn from Australia? Stricter gun control laws save lives, Rebecca Peters, The Guardian,
    14 December 2013.
  10. 4 Ways to Stop Gun Violence, Benjamin Van Houten, Yes! Magazine, 9 February 2011.


  1 June 2017 {Article 292; Govt_71}    
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