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Trained and Trusted: Militias and the Second Amendment (Guest Post by Stan Scott)

This is the second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. Crossposted at Foggy Bottom Line.

Military service taught me a lot about weapons.  No Army officer would issue a sidearm, rifle, or tank to anyone who had not demonstrated training proficiency and trustworthiness.  We didn’t let just anyone walk around armed.  

I learned to use weapons when necessary but to secure them at all times.  No shame fell more heavily on a soldier than when he or she lost, misused, or simply could not control an assigned weapon. I simply don’t understand how people can so cavalierly support the idea that more firearms, in the hands of just anyone who wants to have one, could possibly make society safer – or that people who misuse or fail to secure those weapons should not face punishment.

Arming random citizens does not make us safer. To be sure, a firearm owner will, from time to time, use a firearm in self-defense. When this happens, it can stop crime and even save lives. More often someone uses the weapon to inflict harm on others or themselves. Someone steals a rifle and uses it to kill several people and then commit suicide. Every year, 23K Americans use their own weapon and skip the first step. Or the owner leaves it on a coffee table where a toddler finds it and plays a bit of tragic shoot-out with another child. Or drops it and accidently shoots someone in a grocery store. These are all failures we can minimize with more training, just as we did in the Army, but simply putting more guns into circulation will not stop this. Guns don’t save lives any more than they kill people. People save lives, with or without a gun, by knowing what they’re doing.

Similarly, no Army officer would issue a weapon to a soldier who did not continually demonstrate that they could be trusted not to intentionally misuse it. Once qualified through rigorous training and a demonstrated ability to safely possess, use, secure, and maintain a firearm, soldiers also had to demonstrate discipline, a sense of duty and honor, respect for others, integrity, selfless service, and personal courage. Officers stopped trusting – and issuing firearms to – soldiers who failed to live these values. Among the many ways a soldier could demonstrate such a failure would be violence against their own family or friends. Showing disloyalty to the United States would also get you there.

We are of course talking about regulation of civilian firearm ownership and use, not the standards we would expect a soldier to meet. But Second Amendment advocates claim membership in a citizen militia as a protection against regulation of the type and characteristics they’re allowed to own. They’re either militia members subject to Article I Section 8 training requirements and demonstration of good character or they’re not. Even gun owners who reject the militia construct must agree that we need some regulations in place to make sure only good guys have guns.

These regulations should include a tiered system of firearms training that includes more rigorous requirements for citizens who wish to own more deadly weapons. Ownership and use of powerful semi-automatic rifles that can accept high-capacity magazines should have a different – and higher – training standard than ownership of a small caliber revolver in case someone really does make it into their bedroom. 

Such a regulatory regime must also make sure authorities conduct an extensive background check before every firearm transfer, even those among family members. It should include a waiting period to provide a “cooling-off” period for people looking for a gun to use in anger or during a suicidal episode, and cap the number of firearms any individual may purchase during a certain period to limit black market trafficking in guns to states with stricter regulations.

Regulations should also create a system that takes guns out of the hands of people who have demonstrated a failure to properly use and safely secure their weapons or a potential for using them to do harm to innocent people. People who don’t report stolen weapons, transfer guns to others who misuse them, and leave a weapon unsecured that is later used to harm someone else, by accident or on purpose, should lose ownership privileges. And anyone who brandishes a weapon at a family member, or otherwise abuses a family member physically or emotionally, especially while intoxicated, should lose the right to bear arms, at least temporarily. The exact nature of the due process system used to take them away isn’t the important principle here. The important principle is that anyone who beats up a family member has no business bearing arms at all, since they have demonstrated a failure of the kind of self-discipline society should demand from militia members and other gun owners.

Constitutional history suggests that the framers would have been fine with these kinds of restrictions on firearm ownership and use. The men who wrote the Constitution considered provisions, based on some State Constitutions, that would specifically protect bearing arms for self-protection. They intentionally rejecting inclusion of these provisions, and Patrick Henry complained about this at the Virginia ratification convention. James Madison and the other men who wrote and ratified the Second Amendment did not believe it protected the individual bearing of arms solely for self-defense. Whether or not such a right is a good idea, the Framers did not think the Constitution protected one and acted intentionally to leave it out.

Madison and the other Founders did think of a Militia – a well-regulated militia, organized, armed, and disciplined by Congress – as important to national defense, and as a counter to Federal power and a standing Army. Most importantly, slave states thought of militias as the only way they could control their slave populations, because they played just that role. Madison knew these states would reject the Constitution if it did not include protection for these slave patrols. This is the key reason the Second Amendment exists, not to protect individual self-defense, and not to make sure citizens are able to shed the blood of tyrants. The Second Amendment exists to make sure Congress couldn’t end slavery by refusing to organize and arm a militia that would protect it. 

More guns do not make modern American society polite and safer. They make it more adversarial and violent – armed Americans are only “good guys with guns” until they’re not. Firearms in the wrong hands make going to schoolseeing a movie, or running for exercise more dangerous. Proper regulation that ensures only good guys have guns, and that these good guys have the training they need to own, use, maintain, and secure their weapons properly, and safely until they need them for self-defense or shedding tyrant blood makes all the sense in the world. 

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

6 Responses to “Trained and Trusted: Militias and the Second Amendment (Guest Post by Stan Scott)”

  1. Stacy McMahon says:

    Scott ignores that people who choose to own guns do so either because they grew up with guns and are thus trained and inculcated with knowledge of gun safety, or because they are enthusiasts and thus seek out training and become expert with handling and using their weapons. So just because there is no government-mandated training and certification, does not mean that the vast majority of gun owners aren’t qualified to handle their weapons. There are of course a subset who have bad intent, just as Scott admits there are in the military (where people are there for many reasons, not necessarily because they are enthusiastic about being soldiers) but we have criminal law to deal with them.

    The kind of training and licensing requirements Scott presumably has in mind would prevent very few crimes committed with guns, but would add a significant burden on the law-abiding public, and create new opportunities for misuse of government authority on top of it. Want to renew your gun license next year? It was a bad idea to criticize the sheriff. Like your AR-15? Too bad the unelected licensing board just decided not to renew registrations for those, under the authority delegated to them by the legislature.

  2. Sandy Sanders

    I have to admire the integrity of Stan Scott. He ran for elective office and was considered for appointive office (That was SB in Hanover) and you might think he would trim his sails a bit – tack a bit more of a moderate position on hot button issues like guns.

    But Stan is also an excellent propagandist as well: He finds arguments that will help him with different groups and today is no different: He goes right to the slavery issue.

    But alas it seems that the article cited (The Transpartisan article) does seem to indicate that there was a very real fear of slave rebellions in Virginia (and probably other states as well). The article seems to suggest that any personal right of self-defense was so wrapped up in the militia v. slaves issue that it is not clear there was original meaning of the Second Amendment. But a reading of the Scalia opinion shows (and the article admits – there is evidence in support of a pre-existing right to self-defense. ) a strong case for exactly that – from the 1688 Glorious Revolution that overthrew James II and set up William & Mary as king and queen of Great Britain (they shortly after that named a little college not far from here after the new king and queen.) and there was a clear establishment of a clear right to self-defense. People disagree on that interpretation:

    Justice Scalia devoted a large part of his opinion to an attempt to show that the right to use a firearm to defend one’s home pre-dated the United States Constitution and was widely accepted both in England and the Colonies for many years before Independence. His claim that colonial history as well as English history supported his conclusion that the right to bear arms for self-defense in the home pre-existed the ratification of the Bill of Rights has been seriously disputed, not only in Justice Stevens’ dissenting opinion, but also by a number of respected scholars.

    Patrick Henry is cited in Scott’s response to my posting. Now there are propagandists and there are propagandists and Henry was one of the best of all time. He had been nominated and elected to be a delegate to the Constitutional Convention but declined as he put it: “I smelt a rat.” Thank the Lord Jesus that the men who did attend loved their nation and loved liberty. That would not happen in a Constitutional Convention today. Of course Henry was going to marshal every argument to defeat the Constitution that he felt was too much power flowing to the central government. (I think if Henry were alive today he’d say: See I was right!) So Henry will certainly use one of the most incendiary arguments for his Virginia audience: The fear of a slave rebellion.

    And while it would have been ideal to get rid of slavery in 1789, the real fear of rebellion is a legitimate right the state and national governments had a right to prevent. (There is also evidence that the Black Codes after the so-called Civil War were used to disarm blacks. Seems to me the solution for disarming blacks is to allow all law-abiding American adults to own and posses firearms.) Henry the master propagandist adroitly attempted (and nearly succeeded in) to scuttle the new Constitution using every argument, including the fear of slave rebellions.

    But the Anti-Federalists did get the promise of the Bill of Rights and while the Bill of Rights was largely limited to the Federal Government until the middle of the 20th Century (They only applied to the Federal Government and eventually were incorporated one by one into the clauses of the Fourteenth Amendment.) today we can hardly imagine life with those rights. And one was the Second Amendment.

    Unlike the Transpartisan article (Wait a second, I thought I was the transpartisan? I’ve supported candidates from three different parties!) I will say: The words of the Second Amendment are clear: They protect the right of the people to protect themselves and to, if necessary, restore liberty from a tyrannical government. Thankfully, the ballot is still available to redress wrongs.

    Now there should be protection is to keep violent felons from getting guns and severe sentences for the abuse of a firearm in the commission of a crime. But that is not what so-called Universal Background Checks do – they criminalize the private sale of guns – even a friend or family member (some of those laws do exempt some intra-family transfers) without an intrusive background check. If we seek to get rid of intrusive laws such as mandatory ultrasounds before an abortion, why bring intrusive laws for the possession of a firearm? I have grave concerns about Red Flag laws – they will be used inconsistently in different counties or cities, they may not provide sufficient protections to firearm rights without expensive legal action and they could be an issue in “mean and hateful” but not threatening political speech. And the banning of so-called “assault weapons” merely undermines the right to the people to have the arms necessary to preserve liberty.

    Thankfully we are not there and Stan and I demonstrate that with these postings. I beseech my friends and foes to use that ballot to ensure all law-abiding Americans have that right to keep and bear arms without infringement.

  3. I make two core points in my post that neither of you address.

    First, historical evidence demonstrates that the men who wrote the Constitution decided not to include a right to bear arms for individual self defense in that document or the Second Amendment to it. They considered language that would have but made the decision to leave it out. Instead, they settled on language that calmed slave state leaders who worried that the new Federal Government would allow state militias to die as part of a plan to end slavery.

    This means that any claim to a legitimate right to individual firearm ownership based on the Founders intent has no basis in history. Scalia’s misinterpretation of the Second Amendment does not change this.

    My second point is that if gun enthusiasts claim membership in a “whole body of the people” militia, they are subject to Constitutional regulation of firearms ownership. In this case Scalia got something right in Heller when he pointed out that “Like most rights, the right secured by the Second Amendment is not unlimited” and is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

    This is not propaganda. It’s American history that goes to core gun rights advocates’ claims: That the Founders intended to protect a right to individual firearm ownership, outside the context of state militias, for self defense and to provide a means to overthrow the government should it become a threat. They did not, and dismissal of this challenge to Scalia’s incorrect interpretation suggests that you should also dismiss challenges to rulings you agree with, such as Roe v. Wade.

    In any event, firearms are a problem in the US today. There are simply too many of them in circulation, many of them are not properly secured and kept out of the hands of bad guys. The solution to this is stricter training requirements, especially for high-powered weapons, and stricter rules for gun transfers. Simply growing up around firearms does not mean someone has the training needed to use guns safely and effectively. Indeed, it probably gives most people a false sense of their capabilities and leads to picking up bad habits (e.g., leaving a loaded firearm on a table where a child can find it). I can tell you a lot of stories about new soldiers from rural areas who had grown up around guns but hadn’t the foggiest notion of gun safety or security.

    The National Rifle Association and other groups spend a lot of money on…propaganda…supporting the gun industry. They realize that a firearm, once purchased, will literally last forever with fairly minimal maintenance. This means the gun industry must sell a lot of guns to people who already have them to keep business alive. So they scare people with…propaganda…about the need to pack heat at the grocery store, just in case. Or to have several weapons and lots of ammunition in case the government comes for them. Sometimes they even promote fake research – literally faked research with invented survey responses – that supports the ideal that guns save lives. The simple fact is that the gun I have in the drawer next to my bed is statistically more likely to be used against me than to protect me.

    In the end, I argue that no right to carry a firearm in a public place, concealed or not, trumps my right to peaceably assemble in public places without fear of someone misusing a dangerous weapon. We need strict regulations governing all gun transfers. None should take place, even among family members, without a deep background check and a two-week waiting period. We need strict training requirements to make sure people use and store weapons properly. We need provisions for taking guns away from people who have demonstrated violent behavior as well as make sure that people with an immediate need to arm themselves can do so. And we need to hold liable people who fail to properly secure their firearms and use them safely.

    Yes, this will make owning firearms more expensive and difficult. That’s the point.

  4. If there was no compelling need for arming in self-defense and to the extent it is legal arming in defense of property we need only see the last five days in major US cities including Richmond, Virginia to see why it is needed and we are thankful there is the Second Amendment and its corresponding Virginia counterpart.

    • The response to the protests by militia groups and other Second Amendment activists puzzle me.

      Of course Second Amendment supporters claim an individual right to bear arms in self defense, presumably including defense of personal property or a business.

      But they also claim to need firearms to “water the tree of liberty with the blood of tyrants.” Armed agents of the state have killed peaceful citizens, white and black, who have not resisted. When Americans assemble peaceably to demand a redress of these grievances, armed agents of the State violate their Constitutionally protected right to do this.

      Hard to imagine anything more tyrannical than this.

      So why aren’t Constitutional Militias mobilizing to protect the right of peaceful protesters to assemble and express their dissatisfaction?


  1. […] This is the second in the Lincoln-Douglas Debates II series – the Sanders-Scott Debates. The first entries, on abortion policy, are here and here. You can read Sandy’s entry on this issue at Virginia Right. Crossposted at Virginia Right. […]

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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