The Transgender Military Ban and the Second Amendment

Currently our legal system interprets the Second Amendment’s “right to keep and bear arms”.

It’s possible that when drafting the Constitution the authors were concerned with the government taking people’s guns away as a means of oppression and wrote the Second Amendment to protect against that, but under scrutiny that is probably not what they meant. Given the linguistic and political context in which the Constitution was written a different interpretation of the Second Amendment would likely be much closer to the original meaning.

The framers of the constitution were educated men and many of them were extremely well versed in Military tactics, and of course they had just won a war against what was previously thought to be one of the world’s greatest militaries, so they would have been well aware that a bunch of untrained, unorganized people who happen to each have their own gun is not a sufficient safeguard against tyranny. Guerrilla fighting tactics, can be extremely effective, and were of course an essential strategy in for the Continental Army during the Revolutionary War. But, in order to actually win an armed conflict a force needs to have some type of organization, training, leadership, and military planning, or to put it another way it needs to be “well regulated”.

What seems more likely than the authors of the Constitution inexplicably becoming concerned with individuals being allowed to freely own guns, is that when they wrote the Second Amendment they were actually trying to protect something else; the right to serve as part of a military or militia. This is supported by the fact that the term to “bear arms” in the time that the Constitution was written referred to participating in military activities, not just holding your own gun. The right to serve as part of your national or state protective force also makes a lot more sense logically as a thing the Founding Fathers would want to protect. They were trying to ensure that the new country had a national military that was capable or continuing to protect it from foreign intrusion. But as men who had just a few years prior been English citizens being oppressed by the English government to the point that they fought against the English Military, they had reason to want to safeguard against a federal government that had the power to oppress it’s own people.

By guaranteeing that citizens of the new United States had the right to serve in the armed forces, the Founding Fathers were creating a country with a military and militias made up of a bunch of different classes of citizens. And when the military is made up of different classes of citizens it’s harder to use it to oppress certain classes of citizen. Of course there were a lot of people that the authors of the Constitution did not consider citizens. But over the last two centuries the U.S. been able to work towards correcting that mistake and ensure that all Americans have equal standing under the law, and now fortunately, these rights apply to all Americans not just a select few land owning white men.

Interpreting the Second Amendment as protecting the right of U.S. Citizens who are able to join the armed forces and serve is probably a lot closer to what the Founding Fathers were trying to safeguard. This more accurate interpretation also clearly shows what is wrong with the current administration’s attempt to ban transgender Americans from serving. If a similar ban were attempted on a different class of people, for instance if a the President were to say that Catholics were barred from service, or people of Italian decent, or people with blond hair couldn’t join the military, or if the current administration were to attempt to pass a law preventing anyone from a Blue state from being in the Military, there would be national outrage. The motives of the government would be fiercely questioned, and the ban would easily be seen by the vast majority of Americans for what it is, an act of oppression that opens the door to additional possibly greater acts of oppression. But, because of sadly still common prejudices against transgender Americans and because the administration dressed this ban up in some inaccurate claims about medical costs for transgender troops, this ban is not being met with the opposition that a ban on basically any other group of Americans would be.

What happened next with the transgender military ban will be a test not just of America’s laws but also of the nation’s character and values. It’s an opportunity for the Constitutional originalists, the Second Amendment advocates, the proponents of a strong volunteer military, those who speak about protecting against tyranny, and anyone who truly values American equality to speak up and stand up for what they claim to believe in. In discussion of the Second Amendment there is often talk about whether guns are tools or weapons; the truth is, as Ani Difranco says, “Every tool is a weapon if you hold it right.” The Founding Fathers created the Constitution, but it can be interpreted, it can be held many different ways. Americans can interpret the Second Amendment in a way that it is a tool of equality and rightfully reject this ban on the grounds that it violates that Amendment. Or, the original intent of the Second Amendment can be ignored and the Federal government can be allowed to move forward with the ban and create a Federal law that is a weapon of oppression against certain Americans.