John Whitehead's Commentary
The Second Amendment’s Right to Bear Arms: What It Means
“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 Second Amendment to the US Constitution
You can largely determine where a person will fall in the debate over gun control and the Second Amendment based on their view of government and the role it should play in our lives.
In the first group are those who see the government as a Nanny State, empowered to look out for the best interests of the populace, even when that means overriding our rights as individuals and free will.
These individuals tend to interpret the Second Amendment to mean that only members of law enforcement and the military are entitled to own a gun. Case in point: President Biden recently (and wrongly) asserted that “the Second Amendment, from the day it was passed, limited the type of people who could own a gun and what type of weapon you could own. You couldn’t buy a cannon.”
In the second group are those who see the government as inherently corrupt.
These individuals tend to view the Second Amendment as a means of self-defense, whether that involves defending themselves against threats to their freedoms or threats from individuals looking to harm them. For instance, eleven men were recently arrested for traveling on the interstate with unlicensed guns that were not secured in a case. The group, reportedly associated with a sovereign citizens group, claimed to be traveling from Rhode Island to Maine for militia training.
And then there is a third group, made up of those who view the government as neither good nor evil, but merely a powerful entity that, as Thomas Jefferson recognized, must be bound “down from mischief by the chains of the Constitution.” To this group, the Second Amendment’s assurance of the people’s right to bear arms is no different from any other right enshrined in the Constitution: to be safeguarded, exercised prudently and maintained.
How to exercise this right is the question that keeps jockeying for supremacy before the U.S. Supreme Court. After declaring more than a decade ago that citizens have a Second Amendment right to own a gun in one’s home for self-defense, the Court has now been tasked with deciding whether the Constitution also protects the right to carry a gun outside the home. The case, NY State Rifle & Pistol Assoc. v. Corlett, takes issue with a state law that requires a license in order to carry a concealed gun outside the home.
On the heels of Corlett is another legal challenge to the state’s authority to regulate—or ban outright—gun ownership outside the home. The attorneys general of 21 states—including Louisiana, Arizona, Montana, Alabama, Arkansas, Georgia, Idaho, Kansas, Kentucky, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming—have filed an amicus brief in Young v. Hawaii asking the Supreme Court to uphold Hawaiians’ Second Amendment rights to bear arms outside their homes.
Unfortunately, while the various federal circuit courts of appeal continue to disagree over the exact nature of the rights protected by the Second Amendment, the government itself has made its position extremely clear.
When it comes to gun rights in particular, and the rights of the citizenry overall, the U.S. government has adopted a “do what I say, not what I do” mindset. Nowhere is this double standard more evident than in the government’s attempts to arm itself to the teeth, all the while viewing as suspect anyone who dares to legally own a gun, let alone use one in self-defense.
Indeed, while it still technically remains legal to own a firearm in America, possessing one can now get you pulled over, searched, arrested, subjected to all manner of surveillance, treated as a suspect without ever having committed a crime, shot at, and killed. (This same rule does not apply to law enforcement officials, however, who are armed to the hilt and rarely given more than a slap on the wrists for using their weapons against unarmed individuals.)
Now the Biden Administration is setting its sights on gun control.
Mark my words: gun control legislation, especially in the form of red flag gun laws, which allow the police to remove guns from people “suspected” of being threats, will become yet another means by which to subvert the Constitution and sabotage the rights of the people.
Giving police the power to preemptively raid homes in order to neutralize a potential threat is a powder keg waiting for a lit match.
Under these red flag laws, what happened to Duncan Lemp—who was gunned down in his bedroom during an early morning, no-knock SWAT team raid on his family’s home—could very well happen to more people.
At 4:30 a.m. on March 12, 2020, in the midst of a COVID-19 pandemic that had most of the country under a partial lockdown and sheltering at home, a masked SWAT team—deployed to execute a “high risk” search warrant for unauthorized firearms—stormed the suburban house where 21-year-old Duncan, a software engineer and Second Amendment advocate, lived with his parents and 19-year-old brother.
The entire household, including Lemp and his girlfriend, was reportedly asleep when the SWAT team directed flash bang grenades and gunfire through Lemp’s bedroom window.
Lemp was killed and his girlfriend injured.
No one in the house that morning, including Lemp, had a criminal record.
No one in the house that morning, including Lemp, was considered an “imminent threat” to law enforcement or the public, at least not according to the search warrant.
So what was so urgent that militarized police felt compelled to employ battlefield tactics in the pre-dawn hours of a day when most people are asleep in bed, not to mention stuck at home as part of a nationwide lockdown?
According to police, they were tipped off that Lemp was in possession of “firearms.”
Thus, rather than approaching the house by the front door at a reasonable hour in order to investigate this complaint—which is what the Fourth Amendment requires—police instead strapped on their guns, loaded up their flash bang grenades and acted like battle-crazed warriors.
This is what happens when you adopt red flag gun laws, which Maryland did in 2018, painting anyone who might be in possession of a gun—legal or otherwise—as a threat that must be neutralized.
Meanwhile, the government’s efforts to militarize and weaponize its agencies and employees is reaching epic proportions, with federal agencies as varied as the Department of Homeland Security and the Social Security Administration placing orders for hundreds of millions of rounds of hollow point bullets. Moreover, under the auspices of a military “recycling” program, which allows local police agencies to acquire military-grade weaponry and equipment, $4.2 billion worth of equipment has been transferred from the Defense Department to domestic police agencies since 1990. Included among these “gifts” are tank-like 20-ton Mine Resistant Ambush Protected (MRAP) vehicles, tactical gear, and assault rifles.
Ironically, while the Biden administration’s gun control efforts have helped to spike gun sales nationally, the government has made no effort to curtail its own addiction to weapons of war, a significant number of which have conveniently been “lost” and used in violent crimes in communities across the U.S.
The U.S. military boasts weapons the rest of the world doesn’t have, and it continues to develop even more weaponry, each deadlier than the last.
Make no mistake: every last one of these weapons will eventually make its way back to domestic police forces to be used against the American people.
Included in the government’s military arsenal are armed, surveillance Reaper drones capable of reading a license plate from over two miles away; an AA12 Atchisson Assault Shotgun that can shoot five 12-gauge shells per second and “can fire up to 9,000 rounds without being cleaned or jamming”; an ADAPTIV invisibility cloak that can make a tank disappear or seemingly reshape it to look like a car; a PHASR rifle capable of blinding and disorienting anyone caught in its sights; a Taser shockwave that can electrocute a crowd of people at the touch of a button; an XM2010 enhanced sniper rifle with built-in sound and flash suppressors that can hit a man-sized target nine out of ten times from over a third of a mile away; and an XM25 “Punisher” grenade launcher that can be programmed to accurately shoot grenades at a target up to 500 meters away.
What the government has yet to acknowledge, however, is that its own gun violence—inflicted on unarmed individuals by battlefield-trained SWAT teams, militarized police, and bureaucratic government agents trained to shoot first and ask questions later—is not making America any safer.
Indeed, the U.S. government may be the most egregious perpetrator of gun violence in America, bar none.
All the while gun critics continue to clamor for bans on military-style assault weapons, high-capacity magazines and armor-piercing bullets, the U.S. military is passing them out to domestic police forces.
Under the auspices of a military “recycling” program, which allows local police agencies to acquire military-grade weaponry and equipment, more than $4.2 billion worth of equipment has been transferred from the Defense Department to domestic police agencies since 1990. Included among these “gifts” are tank-like, 20-ton Mine Resistant Ambush Protected (MRAP) vehicles, tactical gear, and assault rifles.
While Americans have to jump through an increasing number of hoops in order to own a gun, the government is arming its own civilian employees to the hilt with guns, ammunition and military-style equipment, authorizing them to make arrests, and training them in military tactics.
Among the agencies being supplied with night-vision equipment, body armor, hollow-point bullets, shotguns, drones, assault rifles and LP gas cannons are the Smithsonian, U.S. Mint, Health and Human Services, IRS, FDA, Small Business Administration, Social Security Administration, National Oceanic and Atmospheric Administration, Education Department, Energy Department, Bureau of Engraving and Printing and an assortment of public universities.
This is the double standard at play here.
How is it that while violence has become our government’s calling card, from the more than 80,000 SWAT team raids carried out every year on unsuspecting Americans by heavily armed, black-garbed commandos and the increasingly rapid militarization of local police forces across the country to the drone killings used to target insurgents, “we the people” are the ones who must be regulated, restricted and banned from owning a weapon?
If we’re truly going to get serious about gun violence, why not start by scaling back the American police state’s weapons of war?
I’ll tell you why: because the government has no intention of scaling back on its weapons.
We’ve allowed ourselves to get so focused on debating who or what is responsible for gun violence—the guns, the gun owners, or our violent culture—and whether the Second Amendment “allows” us to own guns that we’ve overlooked the most important and most consistent theme throughout the Constitution: the fact that it is not merely an enumeration of our rights but was intended to be a clear shackle on the government’s powers.
When considered in the context of prohibitions against the government, the Second Amendment reads as a clear rebuke against any attempt to restrict the citizenry’s gun ownership.
As such, it is as necessary an ingredient for maintaining that tenuous balance between the citizenry and their republic as any of the other amendments in the Bill of Rights, especially the right to freedom of speech, assembly, press, petition, security, and due process.
Supreme Court Justice William O. Douglas understood this tension well. “The Constitution is not neutral,” he remarked, “It was designed to take the government off the backs of people.”
In this way, the freedoms enshrined in the Bill of Rights in their entirety stand as a bulwark against a police state.
To our detriment, these rights have been steadily weakened, eroded and undermined in recent years. Yet without any one of them, including the Second Amendment right to own and bear arms, we are that much more vulnerable to the vagaries of out-of-control policemen, benevolent dictators, genuflecting politicians, and overly ambitious bureaucrats.
When all is said and done, the debate over gun ownership really has little to do with gun violence in America. It’s also not even a question of whether Americans need weapons to defend themselves against any overt threats to our safety or wellbeing.
Truly, the debate over gun ownership in America is really a debate over who gets to call the shots and control the game.
In other words, it’s that same tug-of-war that keeps getting played out in every confrontation between the government and the citizenry over who gets to be the master and who is relegated to the part of the servant.
The Constitution, with its multitude of prohibitions on government overreach, is clear on this particular point. As 20th century libertarian Edmund A. Opitz observed in 1964, “No one can read our Constitution without concluding that the people who wrote it wanted their government severely limited; the words ‘no’ and ‘not’ employed in restraint of government power occur 24 times in the first seven articles of the Constitution and 22 more times in the Bill of Rights.”
In a nutshell, as I make clear in Battlefield America: The War on the American People, the Second Amendment’s right to bear arms reflects not only a concern for one’s personal defense, but serves as a check on the political power of the ruling authorities.
It represents an implicit warning against governmental encroachments on one’s freedoms, the warning shot over the bow to discourage any unlawful violations of our persons or property.
As such, it reinforces that necessary balance in the citizen-state relationship. As George Orwell, who plays a starring role in my new novel The Erik Blair Diaries, noted, “That rifle hanging on the wall of the working-class flat or labourer’s cottage is the symbol of democracy. It is our job to see that it stays there.”