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23.10.02

Gun control advocates like to take advantage of the fact that the Second Ammendment states a rationale for establishing the right to bear arms. In contrast to the First Amendment -- which simply asserts freedom of the press, etc. -- the Second explains why it exists. Bearing arms is not a right that exists in some absolute or a priori sense, it's a right that has been instituted to serve a particular purpose -- the maintenance of a "well-regulated militia." The implication is that the right to bear arms is a means to a certain end -- and thus when that end is not being served, the means does not apply. Asserting a right to bear arms in situations that do not support a well-regulated militia is like chewing all the time, because it's important to chew when you have food in your mouth.

So gun control advocates have focussed on the idea of a "militia," claiming that the practices that would be limited by the gun control measure in question are not part of maintaining a militia. Gun rights advocates, having seen this argument for years, have a ready answer. They broaden the definition of "militia" to include pretty much anyone. An armed citizenry constitutes a (potential) militia that could resist tyranny, just like the minutemen and others did.

But it seems like it would make more sense to focus on "well-regulated." Gun regulation appears to be right there in the Constitution. And it's not just that Congress is permitted to regulate, but rather that regulation is part of the premise on which the right to bear arms rests. Of course, what constitutes "well-regulated" is nebulous (as is much of the Constitution -- how cruel is "cruel and unusual punishment"?), and the argument could be made that any particular measure goes too far. But it would at least move the debate away from the idea of infringing upon sacred rights, and into the balancing of two opposed but constitutional interests -- the interest in regulation and the interest in resisting tyranny -- much like the courts currently have to balance the "free exercise" and "establishment" clauses of the First Amendment.

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