Kirk Swearingen has a hot take published by Salon under the title, “The Second Amendment is a ludicrous historical antique: Time for it to go.”
“Those of us who are not gun fetishists are supposed to ‘keep our powder dry’ on the subject, but it must be said: The Second Amendment is as antique as a muzzle-loaded long gun, and should be treated as a historical artifact,” Swearingen writes to begin his article. “We’re not supposed to even whisper such things because the NRA and right-wing extremists have sensible Americans…so bullied and cowed that we feel we are only allowed to hope for sensible gun-safety legislation around the edges of their highly profitable assault on American lives.”
But Swearingen doesn’t just cite the toxic influence of NRA lobbyists on legislation; Swearingen actually goes for a textual argument, stating that the Second Amendment uses conditional language.
Here is the Second Amendment: “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.” According to Swearingen, the text of the Second Amendment means that “so long as a militia of citizens is necessary (and a well-regulated one, at that), then what follows [the right to bear arms] is true. But only if that first part pertains.” And according to Swearingen, since the U.S. has long since replaced its citizen militia with a robust standing military, plus the National Guard, the Second Amendment no longer applies.
Is Swearingen Correct?
Swearingen is onto something – the Second Amendment may well be outdated in certain respects. But Swearingen’s reading of the Second Amendment seems a bit like wishful thinking. Where Swearingen reads the Second Amendment to mean that the right to bear arms only applies when a militia is necessary.
I think most honest reads of the Second Amendment will find the text to mean the right to bear arms simply exists because a militia is necessary. But obviously, that is open to interpretation.
Nevertheless, despite not agreeing with Swearingen’s textual analysis of the Second Amendment, I can appreciate the sentiment that the Second Amendment is outdated. Sincerely. The thing was crafted at a time when the arms being borne were single-shot muskets that required a minute to load and fire.
It allowed citizens to arm themselves with a weapon that posed little threat to their communities or neighbors yet gave the citizen firepower comparable to that of the military, in effect offering to rapidly augment the firepower of the military (or to balance against the prospect of a hostile government takeover).
Today, the arms that the Second Amendment is allowing everyday citizens to bear include high-powered rifles, things like the AR-15, which very much pose a threat to community and neighborhood when used improperly — and yet which fail to grant the bearing citizen firepower comparable to that of military personnel.
Because whereas the military in the late 1700s, when the Second Amendment was authored, used single-shot muskets, the modern military uses F-35s, Abrams tanks, Los Angeles-class submarines, M-60s, and intercontinental ballistic missiles.
This means the guy in Kansas exercising his Second Amendment right to bear arms is not really capable of augmenting the capabilities of the contemporary U.S. military, nor is he a hedge against the military’s ability to conduct a hostile takeover.
So yes, the Second Amendment is outdated in the most practical terms.
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Harrison Kass is the Senior Editor at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.
