12.19.2015 | The militia is broken

It's never the right time to talk about gun control, so why not today? That was my thought when I started promoting #gunsense on Twitter following the #SanBernardino mass shooting (it's been called a terrorist attack, but let's be honest about what it really is at its most basic level). It sparked an incredible debate unlike any issue I've engaged on publicly before. I learned a lot, and got some insight into America's gun culture: why it is the way it is, and why the debate is so intractable.

One of the biggest takeaways was learning that, under current law, all Americans are part of the militia. U.S. Code (10 USC 311) states that there are two parts to our militia: organized (our military), and unorganized (the public, consisting of all able-bodied Americans). #Gunners, as I call them, kept telling me their right to bear arms was inviolable for this reason and so could not be encroached on for any reason. At first I believed them. But there are two parts to the Second Amendment's single sentence, and one half of it refers to a "well-regulated militia." I just couldn't believe that our Founders would have enshrined such a dangerous inviolable right in our Constitution at the expense of public order and safety.

Ben Franklin spoke of trading essential liberty for temporary safety. As it strikes me, limiting magazine sizes and banning weapons that make it easier for novices to kill large numbers of people is trading a nonessential liberty for permanent safety—in state after state, and country after country, after gun laws are passed, violent gun deaths go down. This is mostly due to suicides—but mass shootings, as in Australia's experience, become much rarer and less deadly too. On the other side of the equation, Switzerland—which requires gun ownership for national security reasons—has a similar mass shooting problem and is an outlier among major countries for gun deaths and gun homicides.

As I dove deeper into the Constitution, I discovered that Congress does indeed have authority over the militia. I was told that only the states do, but once again #gunners were reading only one half of the idea. The Founders wisely divided militia power between the states, the people, and the federal government. This was meant to prevent one from having too much power over the other—and it's why we will often hear #gunners speak openly of insurrection and treason. But in this clause (A1 §8 c16), Congress was clearly given authority over all the militia, not just the portion under control of the states. It's right there in the first part of the sentence.

Treason was never a Second Amendment right. George Washington himself used the national guard to put down two rebellions (the Whiskey Rebellion and Shays's Rebellion). And putting down rebellions is an enumerated power of Congress. Also an enumerated power: providing for the militia's discipline. This is the key phrase that puts the militia under Congress' control, and refers to the well-regulated militia mentioned in the Second Amendment. Unlike the other rights in the Bill of Rights, this one was never meant to be beyond the reach of law.

Some of the debate gets hung up on semantics—#gunners say "discipline" means only training, and that "regulated" in the 18th century only meant "properly working." But even under those narrow defintions (one of which ignores the Latin root of regulate—regulare, "to rule"), a properly working militia must be willing to submit to Congress's rules for participating in the militia. In my view (and the Supreme Court's), that means that we can impose rules on obtaining weapons, and determine which weapons are in "common use" (a phrase that appears in the Heller decision), ensuring that the most dangerous ones are only in the hands of trained professionals. That training can be for formal military service, or for simply owning a gun like Japan does.

Let's be clear: this is not the total disarmament that #gunners fear and is unconstitutional besides. The hashtag is called #gunsense rather than gun control because the volume of the debate often obscures any chance for progress on #gunlaws at all. The Second Amendment was never a prescription for lawlessness (Georgia's restatement of the right later on in their state constitution made that explicitly clear: "the General Assembly shall have power to prescribe the manner in which arms may be borne")—and no right is absolute besides.

My hope is that we can move past some of these sad divisions and come together around some common-sense requirements that limit—but not eliminate—access to guns in the interest of public safety. And it is within our power, as other nations have demonstrated (and even states within our union), to reduce #gundeaths and prevent the worst tragedies from being so deadly.

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