Opinion: What happened to a ‘well regulated Militia’?

First off, I would like to acknowledge our community for coming together after the tragedy that occurred at King Soopers in Table Mesa. I shop there, and could easily have been there on that Monday afternoon. Also, thanks to the Daily Camera for the following Sunday edition’s story, which made the awful events very personal and real.

This all reminded me of a question that has been on my mind for some time: How did the Second Amendment, which includes the phrase, “A well regulated Militia, being necessary to the security of a free State, …” become interpreted as creating an individual’s right to “bear arms”, rather than the collective right that the “well regulated Militia” language would imply? So I looked it up. Wikipedia has an excellent and lengthy discussion.

I don’t claim to be an expert on this, but here are some things I learned. The various states’ militias were seen by people in the 18th century as protection against potential oppression by the federal army, since no one really knew what this new government, that the founders had just created, would do. So the militias’ role was collective defense, not individual. And for some southern states, the militias were potentially a defense against slave “insurrections.” The semi-final version’s language was a lot clearer about the importance of the militia because it had an additional phrase: “A well regulated militia, composed of the body of the people, being the best security of a free state, …”

It wasn’t until the latter half of the 20th century that serious discussions started about the Second Amendment being an individual right rather than just a collective one. But even as late as 1990, retired Supreme Court Chief Justice Burger, a conservative Republican, wrote, “We see that the need for a state militia was the predicate of the “right” guaranteed; in short, it was declared “necessary” in order to have a state military force to protect the security of the state.” And in 1991, he stated, “If I were writing the Bill of Rights now, there wouldn’t be any such thing as the Second Amendment … This has been the subject of one of the greatest pieces of fraud – I repeat the word ‘fraud’ – on the American public by special interest groups that I have ever seen in my lifetime.”

Only in the last couple of decades have the courts really shifted more towards the individual rights model. Some of my friends have put forward possible explanations – the long-term effect of the Reagan-era right wing shift, the NRA’s emergence as a political force, etc. But what may be of most consequence was the flat-lining of economic improvement of our lower middle class after the post WW II boom that allowed so many of that generation to hugely improve the circumstances of their lives. This shock produced an ongoing level of anger and resentment, which continues to show up in all sorts of arenas.

Locally, Boulder tried to help lead the way, as it has in many other areas, with its 2018 assault weapons ban. That put the issue squarely on the table. But in 2003, the Colorado Legislature had passed a bill making firearms regulation a “matter of statewide concern”. This followed the 2000 Colorado Supreme Court’s “Telluride decision”, where the Court determined that if the Legislature declares something a “matter of statewide concern”, then local governments cannot regulate it unless the state constitution specifically provides otherwise. Therefore, Boulder’s law was pretty much bound to fail in the courts. So we need our Legislature to take on passing gun control laws, including, of course, modifying the 2003 law so local governments can enact stronger rules, just as they now do with oil and gas extraction.

I don’t expect that legislation, either state-level or nationally, will make a big difference immediately. There are just too many guns out there, some 350 to 450 million in the U.S. by some reports. Besides, it can take a generation for change to really take hold. Mandatory use of seat belts in cars was fought against as an infringement of liberty. Smoking remained socially acceptable even after science determined it caused cancer. Climate change resulting from fossil fuel use was a fringe issue for decades even after the public discussion started in the ‘70s. But now most people see things differently, and the norms of acceptable behavior have shifted.

So now is the time for the states and Congress to act. Let’s get on with it!

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