A well-regulated militia...

Had those four words been omitted from the bill of rights, there would be no gun control debate (probably). As is often lamented and preferentially interpereted, that clause in the second ammendment has caused no small amount of gnashing teeth and screaming marmosets in both public and legal circles. More on those four words later. Right now, before the Supreme Court of the United States is one of the first cases on the second ammendment of the Constitution in a lifetime. In fact, I would bet that there is nobody alive who remembers the Miller decision from seventy years ago. Maybe there is someone, but I kind of doubt it. There is a lot of emotion tied up with this case, and there really is a lot riding on it. Because there has been so little decided before there is the opportunity for the court to make some significant changes and clarifications to existing law, as opposed to tweaking the law this way or that. But, like the chinese word for crisis, this contains both opportunity and danger. It is also possible that the Supreme court could make a decision which could lead to further controversy, and all the outrages which accompany it.

From what little I have seen and read so far, here is how I think that things are going to shake out in general. I think that the Supremes will decide that the second ammendment is an individual right. I think that they will specifically not refer to machine guns. I think that the Supremes will also say, that this individual right is subject to 'reasonable restrictions.' I think that the Supremes will also create some sort of "test," which will be the basis for what is and is not considered reasonable restrictions, and here is where the controversy will nest. This is also where the real meat of the matter will lie, and where the real opportunity is.

So, the obvious question is what test can be applied to a right that will be considered reasonable to both the gun owning and the unarmed American? What test will be most effective at putting to rest questions over the meaning of the second ammendment? Perhaps most importantly, what test will be most effective at safeguarding the freedoms and liberties of the individual in their pursuit of happiness?

It will be very easy for the court to become mired in the details and nuances of gun control. Barrel length, caliber, trigger locks, transport, assembly, cyclic rate, magazine capacity, concealed carry, et.c, etc. Unfortunately, Just like Carolyn McCarthy, the Supreme court probably does not have the kind of knowledge of the subject matter to decide it along the lines of features of a firearm. Not that they are stupid or uneducated, just the opposite. That being said, most Marines do not have an in depth knowledge of different firearms. They may know their weapon intrinsically, but the cross-sectional depth of knowledge that a gun enthusiast has is much more, and chances are that if you took five enthusiasts, locked them into a room, and asked them to come to an opinion of what would be a reasonable firearms for a woman to use at home, they would bring back seven different opinions. So, I think that if the Court were to go down this route, they would end up eliciting more cases, and inadvertantly muddy the waters even further. Nothing more would be settled, and we would still have controversy.

Now, while I was thinking this over, I suddenly had an idea, that when it occured to me seemed so obvious that I was suprised that I had not heard it before. I bounced it off of Kim, and he had said that he had not heard it either, so maybe this is a genuinely new idea. Maybe it is a new idea so simple and elegant that it will *settle* the issue of the second ammendment, and lead to an increase in both safety and liberty. Maybe.

It occured to me because of those same four words that have been confounding both sides of the debate for so many decades. "A well- regulated militia." There are probably as many opinions on what this means today as there are people who have thought about what it means today. One one hand, there are those who think that the militia clause is just a flowery prelude, and that it has no legalistic weight whatsoever. On the other side, there are people who think that it guarantees the right of the US military to be armed. To the former, I say that the founding fathers would not put even four words into the bill of rights that were unecessary. They would know that it would only lead to confusion at best and tyranny at worst, so they would strike absolutely anything that was not necessary or inaccurate. To the latter, I say that the idea that the government somehow is in danger of being disarmed by a disarmed populace is absurd on the most extreme. These people were fighting the tyranny of an overbearing government, not fretting about the red coats being insufficiently armed. Get real.

So, while we may not like what the second ammendment says inn some places, we cannot choose to quote "a well-regulated militia" while we ignore "shall not be infringed," or vice versa. I think that we have been focusing too much on the word militia, and too little on well-regulated. After all, what would be the difference between a well-regulated militia, and a poorly-regulated one?

Training.

It was a revelation to me, and when it occured to me, I was actually a little pissed that it had not occured to me earlier. Why are even gun banners okay with cops carrying guns? Because they are trained to do that. Why is a seventeen year old flying gang colors with a machine gun terrifying, but the same seventeen year old with a machine gun is reassuring when he wears the uniform of a US Marine? Because the Marine is trained to use the machine gun, and the uniform is the outward sign of that training. 

Think about it. The militia was a group of unpaid citizens who volunteered to go through the trainning necessary to bear arms in the field against aggressors. To shorten this, let us substitute "militia" for "an armed body of citizen volunteers." If we now apply "well-regulated" to mean "training," the second ammendment seems to become somewhat clearer.

"A trained, armed body of citizen volunteers, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

This makes more sense, to me, than quibbling over what is and is not a militia, and would be more helpful than the definittion and role of the miltia in the second ammendment. There are hundreds of arguments about whether the militia is the army or the national guard, or just the general population. There is also the schizophrenic ruling of Miller, which allows for weapons to be regulated, because the constitution does not protect non-military weapons, while the actual laws which regulate weapons restrict those that have "no sporting purpose."

So, how would this play out in the current case, should the Supremes decide to rule along these lines? Well, it would be a simple matter of saying that whatever requirements the states place upon what the lowest level of training one must have to carry a gun as a public servant is, then that is the level which allows a public citizen to carry the same gun.

The more that I think about it, the more I like this idea, for several reasons.

First, it actually clarifies the constitution, instead of either taking sides on an issue, or kicking the can down the road. Second, it is consistent with the rest of the constitution in it's tradition of setting up powerful interests in competition with each other. So, you have a state which must reconcile what it will allow it's citizens to do, and then holding it's own agents to the same standards. So, this effectively eliminates the possibility that the state governments will say that it's okay for their cops and political allies to defend themselves, but the average citizen cannot. Along the same lines, it will help to diminish the growing 'us versus them' mentality in many police departments where they hold cops to one standard, and "civilians" to another (never mind the fact that unless you are subject to the UCMJ, you are a civilian). It also eliminates the ridiculous situation where  retired combat veteran MP is not allowed to own a gun, but the city dog catcher, who has had no formal firearms training, can.

This solution also allows for the individual states to decide what requirements are appropriate for them, and does not force Hawaii to conform to the same standards as Texas, which is also consistent with the manner in which the constitution was written with strong states' rights.

So, states will have to think long and hard about how little training they are going to allow their personel to get away with for carrying a gun. This can only help to reduce the incidents of negligent discharges and accidental shootings by police officers, which have led to no small amount of conflict and distrust in our communities.

Additionally, there are already models of this in action in states which allow concealed carry. Civilians already have to go through a not insignificant training process to carry in the state of Texas. Many states have similar programs in place, which would provide a template for such a system. When someone wants to purchase a gun, then it becomes a simple system where they presenty their concealed carry card or firearms owner ID, or whatever is peculiar to the state, and  once the ID is verified, then the ID carrier can buy whatever they want. It is a simple, cheap and reliable system.

There are also a number of civilian owned and operated shooting academies which police departments used, which can also be used for testing and training purposes. Gunsite, Thunder ranch, and other establishments could provide for the training for such ownership, and all states would have to do is recognize the certificate from one of these courses as passing the requirements for gun ownership. In short, we are already a long way towards having the infrastructure for such a system in place, which means that the court will not be causing a lot of upheaval should they decide along these lines. Yeah, there may be a sudden surge in the number of applicants, but that is honestly a lesser problem.

[in response to some comments, let me make this clarification: this training threshold would be the highest standard that the state could impose upon the individual, as anything more would be considered unreasonable. The State would of course retain the ability to loosen it's requirements for citizens, and may, indeed, not have any requirements, should it so choose.]

Yes, it seems to me that the highest court in the land may have the opportunity to make a definitive ruling on a very important part of the bill of rights, and provide for a long-lasting  and publicly acceptable solution to the question before them.

I am very interested to see what others think about this.

Respectfully Submitted,
-doc Russia