The regrettable 2nd Amendment

There is no more obvious, nor more costly mistake in the Constitution than the 2nd Amendment. This statement is equally true whether you support completely unlimited gun ownership, or some restricted freedom, or complete prohibition of private guns. Whatever your position, you should agree that America is tormented by the conflict over guns, and that the Constitution fails to ensure the domestic tranquility that it promises in the preamble. Other passages in the Constitution have been the cause of, or have at least failed to prevent, greater grief. But nowhere else does the language in the Constitution perplex the reader as much as this:

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.

 Many Americans are aware on some level that the 2nd Amendment is about guns. When they read the amendment in its entirety, though, they learn that the founders linked “the right to keep and bear arms” directly to “a well regulated militia.”

What “a well regulated militia” means is made clearer, perhaps, by this passage from Federalist #29:

To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.

so, right from the start and before the constitution was adopted or the 2nd amendment was even written, Hamilton recognizes that the citizenry at large isn’t going to constitute anything approximating a well-regulated militia. To maintain the well-regulated part among the entrire population would be a “real grievance” and a “public loss.” Clearly Hamilton concieves “a well-regulated militia” as a corps of trained and disciplined men drilling under the supervision of sworn officers.

But when the amendment was written, some months later, it extended the right to keep and bear arms to the whole people. There is some contention that the 2nd amendment took the shape it did because southern delegates wanted the widest latitude for white posses to go armed when hunting runaway slaves or putting down future slave revolts.

We should note, too, that in military terms, private ownership of weapons is not conducive to a well-regulated militia. Imagine you’re the commander of a company of citizen militia who turn out ready for action with their private weapons: small bore pistols, hunting rifles, and shotguns. How would you array this company of fighters to optimize their effectiveness? You couldn’t. It is a pretty basic military fact that soldiers in the same company or squad need to be equipped with similar or complementary weapons. No commander would want to go to war with the hodge-podge of weapons that citizens turned out with. So, the right of the people to bear diverse and random arms can’t be seen as a serious step toward “a well-regulated militia.”

Next, there’s the grammatical consideration. I’m not a lawyer and I’m not qualified to offer a legal interpretation of my own. But I know how to write or parse a sentence in English. In the sentence that is the 2nd Amendment the subject is “right” and the verb is “shall be infringed” modified by “not.” There are two phrases (“of the people” and “to keep and bear Arms”) that modify the subject, answering: whose right is it? And what is the right?

The first 13 words of the sentence are a dependent clause. And dependent clauses do not change the meaning of the sentences they are part of. The 2nd Amendment is the same with or without mention of militia or security. Either way, the right shall not be infringed. That is obvious just as a matter of English grammar. And Supreme Court Justice Antonin Scalia affirmed it legally in his opinion of the Heller Case, discussed below, saying, “a prefatory clause does not limit or expand the scope of the operative clause.”

The language of the amendment does not support the militia-only way of reading it, whether you judge it by a simple literate citizen’s understanding or the highest Supreme Court standards.

The rest of this article aims to show that the meaning of the 2nd amendment, and the facts of gun rights in America are very much still muddled up. The notion that the Constitution provides Americans with a solid basis or foundation of law just isn’t supported in this matter. Gun owners aren’t happy, and neither are gun control advocates.

 The 2nd Amendment isn’t the starting point for understanding American law and policies. We know the founders looked to English law and other prior legal ideas when they wrote the Constitution. But the process of casting back in history for legal explanations didn’t stop after the Constitution was written. Legal scholars continue to do it, and the Constitution is neither the first nor the last words, but just another thing to consider. As recently as 2008, Justice Antonin Scalia referred back to the 18th Century English legal scholar William Blackstone repeatedly in discussing gun rights: 

William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.”

As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”

[T]he right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Nor are historical precedents and principles the only sources of details that shape gun questions in American courts. Those decisions also depend on the immediate circumstances of particular cases. The Supreme Court, in an 1875 decision called United States v. Cruikshank, declared that the 2nd Amendment doesn’t guarantee the right to bear arms, but only constrains Congress from limiting gun rights. States and cities, according to Cruikshank, can perhaps still do it. Here’s the essence of Cruikshank: 

The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

The Cruikshank case teaches that the national government can’t restrict gun rights, but that perhaps the states can. Cruikshank came as the national government was withdrawing troops from the defeated post-Civil War South, abandoning the civil rights of black Americans to local officers in the former Confederate states.

Another case, Presser v. Illinois, from 1886, says states can’t restrict gun rights either, because that would deprive the national government of solders: 

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

 The Presser decision also depended on local circumstances. Chicago in the 1880s seethed with labor rights activism. The Presser case revolved around a company of workers, many of them recent immigrants, marching through the streets of the city with shouldered arms behind a commander (A German and a Socialist!) astride a horse and waving a sword. The company was not part of the US military, nor part of a militia authorized by the State of Illinois. Presser claimed his organization was a group of citizens exercising their first amendment right to assemble and their second amendment right to bear arms. The Supreme Court decided that the right to assemble didn’t necessarily include forming private armies. Illinois was allowed to stop Presser’s military parades, but the Presser case affirmed the general right of citizens to own guns.

 There are dozens of relevant cases and comments about the 2nd Amendment. It is far from a settled question. Let’s look at one more case: District of Columbia v. Heller, from 2008. This case was ginned up by the Libertarian Cato institute to push back at a Washington DC law prohibiting possession of handguns even inside one’s home. When I say it was ginned up, I mean Cato went looking for plaintiffs in order to stir up a case. Cato itself wasn’t the injured party.

Anyway, the Heller decision says that the 2nd Amendment assures the right of the people to keep and bear arms. This is not a flippant nor self evident statement. The majority opinion, written by Justice Scalia, says: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”

It’s kind of a shocking conclusion, that 220 years into American legal jurisprudence, a top scholar of the Constitution would come to the conclusion that the 2nd Amendment means what it obviously says. But that is the whole point. It is a muddle.

I recommend you read more about the topic, and from a variety of sources. Here's an article in The Atlantic, written by a constitutional law professor named Garrett Epps, who disagrees with Justice Scalia about the law and disagrees with me about the history. Epps is definitely right about this:

No matter what anyone tells you, no one (and I certainly include myself) can really know the single meaning of any part of the Constitution at the time it was adopted.

 We can’t expect the Constitution, written so long ago, to anticipate every new change in technology and science and world affairs. Many people point out that the founders’ notion of arms (muzzle-loading muskets) fails to anticipate the far more deadly modern assault rifle. But that failure is worse than that. The 2nd Amendment fails to provide much clarity at all.

Discuss:

• Setting aside what you think about guns, would it be possible to write down a clear a definite statement of what the policy should be?

• If it would be possible, what would your statement of American gun laws be?

• Why do you think the authors of the 2nd Amendment didn’t make their intentions more clear?