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