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The problem with the Second Amendment is that it’s confusingly worded

2ndAmendment

Garrett Epps TRIES TO PARSE one of the most controversial elements of the U.S. Constitution:

Many readers find in the Second Amendment a larger unstated vision of America as a polity in which an armed people “regulate” the state rather than the reverse, in which the individual is empowered to resist with deadly force unwelcome interference by either the government or the neighbors. (Just to make matters more confusing, a common usage in eighteenth-century America defined a “regulator” as a member of an extra-legal band of violent vigilantes.) Others, equally plausibly, deny this image, finding instead the important meaning of the amendment in the words “well regulated,” and drawing from that the image of a republic in which the states are collectively armed for defense against rebels within and enemies without.

The duel of meanings is closely akin to the studied ambiguity of poetry. All discussions of what constitutional scholar Sanford Levinson recently called “the embarrassing Second Amendment” are shaped by complex images, by notions of what it is to be American, to be a citizen, or indeed to be a man. That it attracts the mythic imagination isn’t surprising; its text offers one of the most puzzling conundrums in the entire Constitution.

“A well regulated militia being necessary to the security of a free state,” it begins. This is the only provision of the Bill of Rights to have a preamble, and one of only two provisions in the entire Constitution. (The other is the so-called Patent and Trademark Clause, which introduces the congressional power to create limited monopolies as designed “To promote the Progress of Science and useful Arts.”) It is also the only place in the Bill of Rights, indeed one of only three places in the Constitution, in which the present tense is used—“a well-regulated militia being necessary.” (In the Tenth Amendment, the powers not delegated to the federal government “are reserved to the states respectively or to the people”; in the Citizenship Clause of the Fourteenth Amendment, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside.”) This is in sharp contradistinction to what might be called the prophetic future tense of the rest of the document: “Congress shall have the power,” or “the executive power shall be vested in a President.” The first clause of the Second Amendment is matter-of-fact, almost offhand. As we all know, it seems to say, a militia is important to “a free state.”

What is a “free state”? Does it mean a state of the Union, or any organized sovereign government? Is a well-regulated militia essential to the United States as a free nation independent of other nations, or to its constituent states, sovereign and to some degree independent of their federal father? If it were possible to determine what this means, it might answer the key question about the Second Amendment, which is: does the amendment protect (1) the power of the states to maintain militias as part of the “common,” that is, national, defense; (2) the power of the states to arm themselves against possible federal oppression; (3) the right of individuals to “keep and bear arms” for militia service; or (4) the individual right to do so for personal protection?

If the amendment is a structural protection for states, then state governments would have had and would continue to have plenary authority to regulate weapons inside their borders. Nothing in the Constitution says that states have to maintain militias. If they chose not to, then possession of weapons by individuals would be of little use to the amendment’s purpose, and they could ban them altogether. If they choose to maintain militias, they could limit any individual right to the kinds of arms it would be useful for citizens to possess in the event of emergency. They could perhaps even limit possession to people of military age, whose ownership of weapons would be useful. Or they might even have the power—as some communities in the American West have tried to do over the years—to require citizens to maintain a workable weapon in their homes so as to be ready for service at a moment’s notice. The amendment would simply prevent the federal government from overriding these state choices.

On the other hand, if the right to “keep and bear arms” is a protection of the individual against tyranny from any source, then states, like the federal government, would be at least limited in (though not necessarily totally disabled from) the restrictions they wish to impose on individuals. The amendment’s text speaks of a beneficiary of the right— “a free state,” which implies an organized government; and a holder of the right, “the people,” which implies possession and use in some collective form. What it never says is, “a person.” The Fifth Amendment provides rights to individual “person[s].” The Second does not do so explicitly; this however cannot be conclusive, as the Fourth protects the right of “the people” against unreasonable search and seizure, and that right can only be meaningful if it is extended to individuals.

 

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13 Comments

  1. Don Massey

    Laws are not interpreted by individuals but by courts. What did you find that previous court rulings have said in regard to the second admendment in regards to issues raised in your article? That’s what counts no matter how you and I “feel” about gun ownership.

    I had not thought of this until I read your article.

  2. Don Massey: Regarding Supreme Court rulings involving the Second Amendment, here’s what Justice Antonin Scalia, perhaps the most conservative member of the court, said for the court majority four years ago in overturning a ban on handguns in Washington, D.C.:

    “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…

    “The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms…”

  3. Dude read it as it is written dummy. Ban my comment if you want . The constitution was never meant to be rewritten or tailored to suit others agendas . Do not mock the Forefathers friend . You are a boot licking liberal gun grabber . Do not hide behind a blog and state your political party to clarify were you stand.

  4. The ‘confusion’ arises from a failure to understand the rules of English grammer and usage.

    The term “well-regulated” modifies the noun, “militia”, not the noun, “right”. The two aren’t even in the same clause. It is the militia that is to be “well-regulated”, while acting in that capacity. There is no condition placed on “the right of the people” by any part of the sentence.

    Those are just the facts.

  5. The wording of the Second Amendment is confusing only to those who failed high school English.

  6. C. Snyder

    In the context of the second amendment “regulate” means to standardize both training and equipment, nothing more, nothing less.

  7. Don’t know what the word `regulator’ meant in 18th Century usage, but `well regulated’ meant well trained & drilled, not carefully overseen & controlled by the state. Some liberals say that `well regulated miltia’ only authorizes the National Guard, and confers no individual right. Let me add that as an 18th Century reenactor I learned that military use of the flintlock musket requires much drill & practice just to achieve firing of synchronized volleys in massed ranks.

  8. A well-regulated comment section, being necessary to the sagacity of a free blog, the right of the sheeple to post bad “grammer” shall not be infringed.

  9. What an asinine argument. If you don’t have anything intelligent to say, please STFU.

  10. Congress of the United States
    begun and held at the City of New-York, on
    Wednesday the fourth of March, one thousand seven hundred and eighty nine.
    THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
    RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
    ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

    [‘in order to prevent misconstruction or abuse of its powers’;
    ‘further declaratory and restrictive clause added’ as follows: ]

    Amendment II
    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.

    archives.gov/exhibits/charters/bill_of_rights_transcript.html

  11. wfeather

    Funny how the 1 comma version is the only version RATIFIED by the states!

  12. When the Supreme Court got a case they could not duck, the HELLER case, they only addressed the limited issue of, “were Washington, D.C.s restrictive gun laws and bans constitutional?”
    They heard no evidence, took no testimony about other issues, thus Scalia made his statement in dicta, ”
    “Supreme Court rulings involving the Second Amendment, here’s what Justice Antonin Scalia, perhaps the most conservative member of the court, said for the court majority four years ago in overturning a ban on handguns in Washington, D.C.:

    “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…

    “The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms…””

    In similar fashion, in the 1939 MILLER case, there was no court record, no testimony, no evidence from the Arkansas trial court for the SCOUS to review. Only the Solicitor General , the government, present any argument about the Second Amendment and the 1934 National Firearms Act. So the Court said, “it is not within judicial notice whether a sawed off shotgun has any military purpose” because the SCOUS is a review and not an investigator. But the Court certainly implied that the M16/M4 and AR15 rifles are exactly they type of arms that were protected by teh Second Amendment.

    The Court sent the MILLER case back to Arkansas for the trial that never happened, the case is still open.

  13. “The problem with the Second Amendment is that it’s confusingly worded”, ha, ha, ha, ha, ha, what an absolute fraud. Hmmmm, I’m so confused, guns, I’m so confused. Hmmm, this confounding statement, let me try to clarify. “the right of the people” kind of like the people who have a right to abort children, oh wait, they must have meant a collective right to destroy defenseless babies.

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