2nd chances

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 is unique among the Bill of Rights for appearing to protect an object you hold in your hand rather than an idea you hold in your head. The First Amendment protects freedoms of speech and religion, the Third protects a person’s dominion in their own home, the Fourth through Eighth protect criminal and civil procedural rights, the Ninth and Tenth limit the scope of the Constitution – these are all concepts, not things. Is the Second Amendment really about protecting an object, rather than an idea? If it’s the latter, then what is the idea?

Imagine if the First Amendment read something like, “Congress shall make no law infringing on the right of the people to keep and operate a printing press.” The sentiment would be clear: a free press is vital to a properly functioning democracy, the spread of information and debate is a bulwark against government tyranny. And of course, a printing press is necessary to print newspapers, so it would make sense to protect this physical object, as one of the most important instruments of our freedoms. This version of the First Amendment would have worked just fine for the first two hundred years of the nation.

And then it would become ridiculously outdated with the rise of digital information and the dominance of the Internet as the means through which speech is disseminated among the masses. Perhaps there would be a strong subculture of holdouts who would insist on the totemic power of the physical printing press, absolutely convinced that this thing was the idea of the First Amendment itself. They would fight furiously for the right to own and collect their printing presses, and the National Printing Press Association would fight every minor infringement, insisting that it was perfectly normal and supremely American for a person to own dozens upon dozens of presses, each with gigantic capacity, capable of printing millions of newspapers per day, in a world where no one reads newspapers anymore.

But those holdouts could not be considered seriously engaged in the project of upholding the freedoms established in the Bill of Rights. It would be obvious that those people had lost all sight of the purpose of protecting the citizenry from the tyranny of the government.

You could criticize the holdouts as bitter people, clinging to their printing presses in the face of a changing society that confuses their simple minds. But that would be a poor engagement with their legitimately held underlying concerns. A complete engagement would ask what the First Amendment is really about, and whether the physical printing press can still be considered an important object in the concepts behind the First Amendment.

The analogy is exceedingly obvious at this point. In the Second Amendment debate, we have a contingent of Americans who are certain that their guns are the object that must be protected, and another contingent who insists that private gun ownership is a public menace and must be limited, or eliminated entirely. In the ferocious argument between these factions, there is almost no serious discussion about the true concepts underlying the words of the Amendment.

What discussion there is barely gets beyond the surface, a trivial debate about the term “a well-regulated militia.” Gun control advocates seize upon the phrase to insist that use of guns in a militia context is the core of the right, rather than individual gun ownership. Whether or not that is true is completely irrelevant, when compared to the true purpose of the Second Amendment.

The Second Amendment, like all of the rest of the Bill of Rights, is about limiting governmental power. It is about ensuring that governmental tyranny will ultimately have to contend with the will of the people. The other amendments protect intellectual liberty, procedural rights, legal limits – these are important weapons in the arsenal of freedom. But another important weapon is the actual weapons. The Second Amendment is intended to preserve the threat of armed revolt against tyranny.

Thomas Jefferson believed that “The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants.” These thoughts led directly to the Second Amendment, which protects the idea of armed rebellion as a limitation on governmental power. This idea is what is intended to be protected, not the physical objects of guns, whether or not in the context of a militia. But guns are now as obsolete for rebellion as the printing press is for freedom of the press.

The problem is that the disparity of destructive power between the weaponry of the government and the weaponry that people can own has become too great. Even if all citizens were armed with fully automatic assault rifles, this arsenal would pale in comparison to the firepower available to state and local police forces, never mind the world-ending power of the national armed forces. Private gun ownership might be a problem in many ways, but it is not at all a problem for the government’s power over the people.

And it would be nonsensical to try to balance this out by escalating the firepower in the hands of the citizens, for example by arming every citizen with their own nuclear weapons. The Second Amendment wasn’t meant as a pact of mutually assured destruction. Jefferson said “a little rebellion now and then is a good thing” – meaning that the limitation is created by an insurrection that can be forcibly put down by the government, not that the government should fear world destruction. When patriots take a cause seriously enough to put their lives on the line, the government might have to put them down violently as well, but the bloodshed on both sides forces all to consider the sensible limits of governmental power.

So “a little rebellion” based on guns is a laughably ineffective tool in today’s society. Government power is no longer truly threatened by private gun ownership, and hasn’t been for about a century. The Second Amendment worked well enough for the first hundred and forty years or so, but we have been in a different world since the end of the Great War. Still, it would be myopic to declare that the Second Amendment should now be considered obsolete. The idea is not obsolete, merely the objects specified in support of the idea.

The Second Amendment protects the idea of armed rebellion as a limitation on governmental power. Even though guns are obsolete for the protection of this idea, no serious discussion of the Second Amendment can propose their elimination without also proposing the armaments that should replace them.

It should be obvious by now that the weapons that matter are no longer ballistic, they are digital. The revolution may not be televised, but it will be online. The government does not fear guns. The government fears anonymity, connection and encryption (ordered this way not for importance, but just for the ACE acronym):

• Anonymity – the right to interact with government without revealing your identity
• Connection – the right to digital access to governmental resources
• Encryption – the right to unbreakable encoding of messages

These are the armaments that matter in terms of a little rebellion now and then – their power far exceeds the combined firepower of private gun ownership. Second Amendment reform should be pushing in this direction:

A digital Militia, being necessary to the security of a free State, the right of the people to remain Anonymous to the government, Connect online to all governmental information, and use and possess tools for unbreakable Encryption, shall not be infringed.

Gun control advocates and their opponents are equally subject to the charge of dereliction of patriotism, when they focus on guns rather than reforming the Second Amendment so that it can rejoin the rest of the Bill of Rights as a truly effective protector of our freedoms.