The Second Amendment is not limited to a simple sentence. It is of critical importance that it could have been left at that, a simple sentence making a straightforward declaration about a right of the people, but it was not.
OPINION — In my lifetime ‘gun control’ has become as explosive as any political issue in this country can be. To my mind, all we need to do to settle that issue once and for all is to read the Second Amendment and do what it says.
Here it is: “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.”
One possible interpretation of that wording is that the whole rationale for a militia has been eliminated. The idea of a ‘standing army’ was the single thing that struck the most fear into the hearts of those who authored the Constitution. Since they would brook no standing army, having a militia would be “necessary to the security” of the Union. Since we now have a standing army, plus a National Guard that has been called out in more than one time of crisis, a militia really is unnecessary. Since a militia is unnecessary, the rationale in the Amendment for a right to keep and bear arms no longer exists.
On the other hand, there is nothing particularly wrong with having a militia. So, why not have a well-regulated militia (or a unit of ‘the militia’) in each state? If one wanted to “keep and bear arms,” one would have to be a member in good standing of the militia in the state of which one was a citizen.
People who want an utterly unfettered right to “keep and bear arms” don’t like that idea. As I understand it, they offer four main arguments to support their point of view. Those are: the ‘original language’ argument; the ‘subordinate clause’ argument; the ‘protection against tyranny’ argument; and the ‘self-defense’ argument. All of those arguments are offered in support of their contention that the Second Amendment asserts an unfettered right to keep and bear arms.
My understanding of those arguments leans heavily on The Second Amendment Primer, by Les Adams, though I have also participated in ‘discussions’ on this topic, including face-to-face and via the internet. In the Introduction of his book Mr. Adams informs us that he is a lawyer who “had studied constitutional law in law school” who was gradually led to investigate the controversy surrounding the Second Amendment. I have also read The Bill of Rights Primer, co-authored by that same Esq. Adams and Akhill Reed Amar. In both books scholarship is on impressive display.
In this critique of the argument concerning original language I’ll focus on three terms, “militia,” “well regulated,” and “security.” Esq. Adams also talked about “bear arms,” but I won’t bother with that. I suppose any term in the Amendment could be subject to debate, but I’ll limit myself to three.
Mr.’s Adams and Amar make the case that originally the right to keep and bear arms was a political right accruing to the people as a whole. According to them, it was widely thought at that time that “the militia” referred to all arms-bearing citizens, which in turn could be all adult males—though some states would pass laws prohibiting people of (relatively recent) African heritage, even freemen, to own guns. The Constitution makes it very clear, however, that a/the “militia” was a specific organization (a point I’ll revisit below).
As for “well regulated,” despite any talk of “originalism,” its meaning doesn’t appear to have actually evolved. Esq. Adams says that then and there it meant “well functioning” and leaves it at that, but when it comes to organizations that is still what “well regulated” means. The U.S. Army, for example, has a whole book of Regulations for the sole purpose of ensuring that it will function well as an army.
There is another word in the amendment that I think bears some examination, even though it is one Mr. Adams and others, in my experience, ignore. That word is “security.” When I remembered the amendment, having read it some time ago, I remembered that word as “defense,” but the word in the amendment is definitely “security.”
It sounds too contemporary to be in that document. Why did they use that word instead of “defense?” As noted, the idea of a militia was prompted by the fear of a standing army. With no standing army, if the nation was attacked by a foreign power, an armed, well-regulated militia would be necessary for its defense. So why did they use “security” instead?
I submit that the answer lies in Section 8 of Article I of the Constitution, where the powers of Congress are enumerated, as in “Congress shall have the power to….” It then lists quite a few “To…’s.” In one of them “the militia” is indisputably referred to as an organization: organizing it, funding it, etc.
That the Constitution addresses “the militia” in its original text, before the Bill of Rights was added to it, is not something people who want an unfettered right to keep and bear arms emphasize. Altogether, in the two books authored by Mr. Adams that point of interest is mentioned once—in the one he co-authored with Mr. Amar.
One of the powers explicitly given to Congress is “To provide for calling forth the militia to…suppress Insurrections….” I’m saying that is why “security” is in the Second Amendment, not “defense.” “Security” includes defending democratic government against armed insurrection by people who, unable to prevail to their satisfaction politically, would use arms to impose their point of view on everyone else.
That brings us to the “protection against tyranny” argument. Some people would have us believe that the people who wrote the Constitution to institute a new government put the Second Amendment in the Bill of Rights to ensure that there would be people with guns available to perpetrate at their discretion in an armed insurrection against the government.
That never made much sense to me. For sure, then as now, there were people who thought such “protection against tyranny” is a good thing, but the Constitution makes it clear that facilitating armed insurrection is not the purpose for having “the militia.” Tyranny has made an entrance more than once in human history through an armed insurrection.
Most fundamentally, this nation was founded on the proposition that power is the enemy of justice. No person, group, or organization is to be trusted with unfettered power.
Justice is all about containing power, keeping it on a leash, regulating it. That is why distrust of governmental power is completely valid—and a concern that I, a rationalist who is neither a conservative nor a liberal nor an adherent of any other ideology, share. [On my Web site, www.ajustsolution.com, I have a proposal for separating the power of printing money from government (and the banking system)—which would allow us to end all taxation and public debt, among other good things it would accomplish.]
Governmental power is not the only kind of power that exists, however. Having money is a form of power, too, which is one reason why many other people and I distrust ‘Big Business’. Having a gun in your hand is also a form of power. That is why many other people and I want to regulate in some way the ownership of guns.
Actually, for many who argue for an unfettered right to keep and bear arms any discussion of a/the “militia” is beside the point, anyway. That’s because all of that is contained, they say, in a subordinate clause. It is their contention that a subordinate clause, being “subordinate,” is of little or no importance compared to the main clause.
I am genuinely embarrassed for lawyers who would say such a thing and mean it. In the first place, I challenge anyone to show me any document ever written by any lawyer that didn’t contain at least one subordinate clause in every sentence. Would they call those clauses meaningless verbiage? They would not.
In the English language subordinate clauses have always mattered, including the place and time of the writing of the Constitution. Those who suggest otherwise are confusing one of the words we use to describe the parts of a sentence with the more common meaning of the word “subordinate.”
In grammar, a clause is designated as being “subordinate” because it cannot stand alone as a complete sentence unto itself. It would make no sense to write, “A well-regulated militia, being necessary to the security of a free state.”
On the other hand, consider writing, “The right of the people to keep and bear arms shall not be infringed.” That can stand alone as a sentence and make perfectly good sense. Grammatically, that is why that part of the Second Amendment is called a main clause.
Yet, the Second Amendment is not limited to that simple sentence. It is of critical importance that it could have been left at that, a simple sentence making a straightforward declaration about a right of the people, but it was not.
The authors of the Second Amendment wanted to say something more. They wanted to relate that right to something else. That is why they added a subordinate clause that did not have to be there in order for the Second Amendment to be grammatically and logically correct. If anything, that enhances the importance of that “subordinate” clause. It obviously refers to “the militia” of Section 8 of Article I of the Constitution.
That does not quite exhaust the arguments of those who want an unfettered right to keep and bear arms, however. Finally, we have the self-defense argument.
Plain and simply, that is not mentioned in the Second Amendment. Shame on the ‘strict constructionists’, much less the ‘originalists’ among us who bring that topic into the discussion.
Mr. Adams does include quite a few quotes from people who have supported a right to keep and bear arms on that ground. Many people may have voted for it on that ground. For one thing, there was no such thing as a police department in that place (or anywhere in Europe) at that time.
That does not make self-defense part of the Second Amendment as it was written. Just as the authors of that amendment could have left out the subordinate clause they included in it, they could have included a clause about self-defense, but did not.
In support of his point of view Mr. Adams does quote eight (but only eight) state constitutions that include a right to keep and bear arms. Only one of the eight includes any mention of self-defense.
In the primer on the Bill of Rights Esq. Adams co-authored, they discuss how the Fourteenth Amendment extended the applicability of the Bill of Rights to the individual states and suggest that it changed the focus of the intent of the right in question to self-defense. They argue that much of that change in focus had to do with allowing people of (relatively recent) African heritage to defend themselves against racists. What ‘gun-hating Liberal’ could argue with that?
Whatever anyone else may say, and for whatever reason, I say the Fourteenth Amendment did not change the wording of the Second Amendment or explicitly introduce wording into the Constitution to change the intent of the Second Amendment. It still has all the same words—and no more—with that pesky subordinate clause that did not have to be there still there.
So, let each state have a well-regulated militia (or a unit of ‘the’ militia). While, again, Article I of the Constitution grants explicit powers to Congress regarding any militia, surely there is room in there for each state to specify what kind(s) of guns the members of the militia in that state may keep and bear, and whether a gun can be kept at home—or on one’s person—or not. To own a gun of any kind, however, a person would have to be a member in good standing of the militia in the state of which one was a citizen.