A 2nd Amendment Remedy
The phrase, “a 2nd Amendment remedy” is often used as an implied threat to use firearms as a remedy for some political or societal illness. For the purposes of this article, however, it is presented in the terms of a remedy for America’s ongoing problems with accepting and rationally enforcing the strictures of the Second Amendment in 21st century America.
The Second Amendment Of The US Constitution
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.
A fairly large number of the residents of America want harsh restrictions to placed upon Americans’ ability to purchase and own firearms. An even larger number are against any significant impediment to purchasing and owning firearms. For close to a century this battle has raged across the nation’s legislatures and courtrooms with no end to it in sight.
A practical remedy to this would be for the US government to issue every non-felon, able-bodied adult one Colt M16A4 and one Beretta M9A1, both with accompanying maintenance kits and paraphernalia.
The Colt M16A4 And The Beretta M9A1
Then, as the right to keep arms has been assured for the American people, legislators can go ahead and place nigh on any level of restrictions on the purchase and ownership of non-issue firearms that their constituencies will bear without infringing upon anyone’s constitutional rights.
And please! Do perform ballistic fingerprinting upon each issued weapon and record the data, along with the identity of the citizen the weapon was issued to in a national database. With all law-abiding adults in America having these weapons, there’s no longer any potential for misuse of such a database to confiscate Americans’ weaponry.
Additionally, as these M16A4s and Beretta M9A1s are to be issued for individuals’ use, the laws should be such that they are neither transferable nor saleable, and any maintenance or changes to the weapons’ firing pins or barrels should be restricted to licensed gunsmiths and include the new ballistic fingerprinting being entered into the national database.
Civil Rights, Equality and Liberty
Standard issue weaponry provides for liberty and an equality of arms across all economic and racial demographics in the nation. It eliminates the issue of the poor not being able to afford to exercise their 2nd Amendment rights or to having to use substandard and less effective arms to do so.
The issuance of the weaponry to the citizenry also follows the current societal trend that says that, if a person has a right to something but cannot afford it own their own, then it must be provided for them. This is a shift from the Militia Act of 1792 which required that all free, able-bodied, White men purchase their own musket or rifle along with sundry other pieces of military kit.
White, Black, Brown, or Yellow; rich man or poor woman – every citizen gets the same rifle and the same pistol to use in defense of person, property, and nation.
The Colt M16A4 And The Beretta M9A1
Some might question the choices of the M16A4 and M9A1 as the weapons to be issued to citizenry but I believe these are the best arms for the American people. They’re both US military issue small arms and having the populace armed with them ensures that the original intent of the Second Amendment will be upheld.
They’re being military issue small arms also falls directly in line with the SCOTUS’ long-standing opinions on the Second Amendment:
- United States v. Miller – 307 U.S. 174 (1939) – The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.
- Adams v. Williams – 407 U.S. 143 (1972) – The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id. at 307 U. S. 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
- Lewis v. United States, 445 U.S. 55 (1980) – These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a well regulated militia”); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three cases holding, respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not violate the Second Amendment).
- Mack and Printz v. United States, 521 U.S. 898 (1997) – In Miller, we determined that the Second Amendment did not guarantee a citizen’s right to possess a sawed off shotgun because that weapon had not been shown to be “ordinary military equipment” that could “contribute to the common defense.” Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.
- District of Columbia v. Heller, 554 U.S. 570 (2008) – Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.
As the US Supreme Court has clarified and amended its opinion on Miller but never reversed it, the issuance of arms such as the M16A4 and M9A1 falls firmly within existing case law and would withstand any challenge in the courts.
Additionally, the military is phasing out the M16A4 in favor of the M4 carbine so there’s an economic benefit to the choice of the M16 as there will soon be large stocks of the weapons available. The 80% parts interoperability between the two weapons makes this an even stronger point in the M16’s favor.
Only having to manage two calibers of ammunition – 5.56×45mm NATO for the M16 and 9x19mm NATO for the M9 – between the military and civilian stocks is also of great benefit, both economically and as part of a well-regulated militia consisting of all able-bodied, law-abiding citizens.
NOTE: A militia consisting of all able-bodied, law-abiding citizens would require a small modification to Title 10, Chapter 13 of the US Code, which enumerates the American militia as consisting of all able-bodied men between the ages of 17 and 45.
Sundry Ancillary Notes For Consideration
There are related issues and concerns with this particular second amendment remedy. Some of them are listed herein:
- It would need to made explicitly clear that the People constitute the unorganized militia per Title 10, Chapter 13 of the US Code, not any part of the States’ National Guard and are not subject to federalization under the Defense Authorization Act of 2007.
- Firearm safety courses would need to be made widely available and included in school curricula, preferably at multiple grades with progressive, age-appropriate course material.
- A series of laws prohibiting misuse of issued firearms would need to be drafted and should, along with all firearm-related crimes, carry stern mandatory sentencing.
- There’d probably be a need and market for some form of firearm liability and/or Personal Injury Protection insurance. Whether or not it would prove beneficial to have the several States make such coverage mandatory as they do with automobile insurance is open for debate.
- There’s the question of ammunition. Should the government issue ammunition and, if so, how much per person per year?
- There’s the question of competency measurement. Should the people have to demonstrate competency with their issued weapons and, if so, to what level and how often?
- There’d need to a methodology for conscientious objectors to opt out of being issued the arms just as they can opt out of armed military or militia service.
Obviously, there’s more related issues that would have to be addressed. The above listed seven were only those that came quickly to my mind. We can always, however, look both to America’s history and Switzerland’s current political, societal, and legal climate to help determine what those issues would be and how to address them.
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