Upon entering the conversation of guns, I know I do so at great peril as emotions run hot on both sides of the issue. I grew up with guns in my home, though I was never a hunter. I had extended family who did hunt and had guns in their homes to which I was exposed to throughout my childhood, and I have enjoyed occasional opportunities to shoot at targets. I suppose I have thought that persons had a right to own guns for protection and hunting, but it was never something I have sought to do. Like many, I must admit that the string of mass shootings have called me to question the legality of assault weapons and large capacity ammunition clips. The above said, I believe I look at the issue from a somewhat dispassionate point for view and offer the following thoughts, not on whether gun control legislation should be enacted, but whether the second amendment offers constitutional protection.
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.
While I am not a lawyer I am one that is used to using language, vocabulary and syntax, to exegete meaning from text, in my case scripture. With this training I am confused as to the claims of those who cite this amendment as the source of rights citizens have to unfettered ownership to firearms. My question is how can an amendment that recognizes and specifies the need for regulation and control of arms, “a well regulated militia” be the source of a right of that disallows any control of gun ownership?
I also am confused as to how the Supreme Court in the 2008 Heller Decision interpreted that the second amendment applies to individuals to have guns for personal safety and or hunting. As stated the amendment says the need for un-infringed bearing of arms is for the protection of the state by militias, and such right is given to “the people.” “The” as used in the amendment seems to be used as a determiner of the noun “people” generically, rather than specifically, meaning the amendment gives the collective citizenry the right to bear arms as part of a militia, with militia defined as a body of citizen, non-professional, soldiers called out in times of emergencies.
Had the amendment been intended to apply to individuals in any and all circumstances, it would have said the right of “persons,” or “individuals,” or just “people,” to bear arms shall not be infringed, with no other stipulations. The fact that the purpose of the entire amendment is to defend the state via a well regulated citizen militia also points away from the amendment’s intention to give constitutionally protected rights to individuals to own and bear arms.
As stated in the second amendment, the only people guaranteed the right to own and bear arms are people who are members of a well-organized, i.e. and structured, militia who use those arms in the protection of the state. Since the amendment does not prohibit others from owning and bearing arms, they are allowed to do so unless the State or United States prohibits or limits such ownership through laws or other regulation.
Again, these comments are not addressing whether federal, state, or local governments should control ownership and possession of guns or ammunition, but just whether the second amendment prohibits regulation of firearms or ammunition.
These are just my thoughts as I read the amendment. I would certainly be interested in hearing other ideas on how or why the second amendment can or should be interpreted in other ways.
From a lawyer friend of mine…..
And the question constantly posed, why do you need an assault rifle to hunt, drives me crazy. the 2nd amendment has nothing to do with hunting. Like all other rights enshrined in the Bill of Rights, it has everything to do with individual sovereignty and precluding the government (state or federal) from prohibiting individuals from arming themselves to resist forces of tyranny (internal or external) that would otherwise obviate their individual sovereignty. The “well-regulated militia” language shows that individuals will be required to resist collectively (as they always have and certainly did in the revolution) with arms they already possess. The well regulated aspect of it suggests that the arms have to be sufficient to actually resist these forces. I think of Texas and Arizona with Mexican drug cartels violently encroaching the border. If i lived on those borders i would want large magazines and AR rifles to ensure I could protect my family and community from their tyranny. Thank God this Bill will not go far in the House.
Implication: Giving the citizenry the same right to do just what occurred with the Revolutionary War should that become a necessity, or if some disaster occurred rendering the law enforcement or military unable to offer protection for citizens. Protection from tyranny or anarchy, etc.
Well thought out, well reasoned, well stated. However, here is one of those differing interpretations you requested.
“The people”, as I read the phrase in this amendment, is the same entity as originally referred to in the constitution: “We the people of the United States…”. It doesn’t state “we, the representatives of the people..” or “we, the military forces of the people…”. It is simply “We the people.” I would argue that the amendment in no wise points away from the constitutional right for individuals to bear arms, but that it justifies that right by citing a valid reason for such a right: the necessity of a well regulated militia. And, while the amendment cites the necessity of a well regulated militia, it does not specifically call for the establishment of such an entity. Instead, it acknowledges the existence of such an entity and uses said existence as a reason for “the people” to keep and bear arms. Much wordsmithing would be necessary to alter the meaning here.
Having said that, I see nothing in the amendment that speaks to the guaranteed availability of all arms to all people. Governmental restriction of certain types of weapons and/or certain accessories such as high-capacity magazines is not addressed at all. The amendment is silent on this issue. We the people may bear arms, but does the government have any right to say which arms we may possess? I see no such restriction here. Further, if we are to rely on the “well regulated militia” rationale for the right to bear arms, then where is that militia? I see individuals exercising their right to bear arms who are not part of any militia with which I am familiar. Nor to they appear to be well regulated…or even regulated at all.
So, where are we then? We are left with the second amendment as is. We are left with a citizenry who have a constitutional right to own and bear arms, yet without being part of a well regulated militia. We are left with ambiguity, imperfection, and a lot of questions. Is it time for another amendment to qualify the second? I dunno.
Thanks for the comment Mark. I guess I would apply the same meaning to “the people” listed in the preamble to the constitution as I do to the people listed in the second amendment. In addition to the grammatical hair splitting regarding “The people” vs, people or persons etc, the preamble refers to the goal of the constitution to is to form a more perfect union, provide for “common” defense, and promote “general” welfare, before any mention of individuals ie ourselves and posterity.
Again, this is all just to determine IF there are constitutional protection for individuals regarding bearing arms.
The above Mark is not me Mark T. Moore, but adds some good thinking to my post. Wouldn’t be a bad post to claim though….
I am said lawyer Mr. Moore refers to. Good thoughts here. Going for the forest real quick: the Bill of Rights was meant codify the rights the individuals had (inalienable rights) that pre-existed the Republic, that the Founders were concerned would eventually be proscribed by the Republic the very exercise of those rights helped create. My point is each of the initial amendments were rights that were critical to maintaining the sovereignty of the individual. The right to keep and bear arms is the individual right (a militia is not the people, the people are the people). If the militia had the right to keep and bear arms, then the primary part of the amendment would be superfluous (i.e., the military acting on behalf of the “people” has the right to be armed – such a protection is not worthy of an amendment and does not fit within the historical context of its drafting). Would then the Founders have been concerned that the government would disarm its own military (and if so by what force)? No, they were concerned that threats to Constitutional liberty (like King George) may necessitate the calling of a militia and that these non-regular militiamen would bring the weapons they use to protect their own individual soveriegnty (as was common in the Revolution) and aggregate that power to protect the State from whatever form of tyranny/criminality that threatened its free people.
Thanks for the post Scott. I am sure, and was sure when I offered my thoughts that there was more that went into these amendments that is considered when attempting to interpret and or apply them today, such as discussion and correspondance about the amendments etc. It’s similar to interpreting scripture. One simply can’t just go by the English versions. To do so well one has to consider the original language(s) of the time, the context of the times which impact how the languages are interpreted ect, which is less of an issue here, the breadth of scripture and other factors if one is to interpret faithfully.
I think the Dick Act of 1903 sheds even more light on how we define militias.
My understanding is that every “able bodied male” from 18-40 is a member of the unorganized state militia in each state they live in. Should a catastrophic failure of law enforcement occur (keep in mind that in the 1780s and early 1900s the U.S. did not keep a massive standing military as a general rule. It was no where near the size it is today, nor did it have the capacity it does today) any and every man could be called upon to defend their state from foreign or domestic enemies. It’s simply part of what it means to be a citizen.
The reason I bring this Act up is because it was enacted to clarify questions about the 2nd Amendment, and how or whether local state militias could be federalized to fill voids in Army, Navy and Marines (no Air Force at the time of the Act).
In spite of the Facebook note being passed around, that states that this Act cannot be repealed, the truth is that portions of this act have been repealed, replaced and updated over time. Why? Because its easier to do than amending the constitution. I do believe, no matter how one parses the wording of the 2nd Amendment, the legal understanding is that it gives each citizen the right to bear arms. The Dick Act of 1903 sought to give better definition, and is the piece this debate really should be battled over, in my unprofessional, but highly passionate opinion.
Good thought process, though, Kenny. I am in favor of always looking over our governing rules to see if they still make sense for the world we are living in today.
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Interesting comments from both sides. It’s fun to see engaging dialogue.
The Constitution is a sacred secular text and the hermeneutics applied to its interpretation is very similar if not the same as those applied to scripture. The division on the court is called conservative and liberal, but that is too glib – it is more about hermeneutics. It mirrors the division within the Protestant church. The originalists say look at the literal meaning of th text and if it is ambiguous, look to how the words were understood at the time of the text’s drafting. he pragmatists say, the culture shifts and the principles embedded in the text are elastic and shift with the times, it is a “living” constitution. The same debate as in the church, with many of the same results. I always found that fascinating.