Reading the Second Amendment
By Sheldon Richman
"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."
Is this sentence so hard to understand? Apparently so. Even some of its defenders donít like how it is worded because it allegedly breeds misunderstanding.
But the Second Amendment of the Bill of Rights is indeed a well-crafted sentence. By that I mean that its syntax permits only one reasonable interpretation of the authorís meaning, namely, that the peopleís individual right to be armed ought to be respected and that the resulting armed populace will be secure against tyranny, invasion, and crime. Someone completely ignorant of the eighteenth-century American political debates but familiar with the English language should be able to make out the meaning easily.
My concern is not to demonstrate that what the amendment says is good policy, only that it says what it says. No other fair reading is possible.
The Competing Interpretation
Before proceeding, letís understand the competing interpretation. As the American Civil Liberties Union of Southern California put it, "The original intent of the Second Amendment was to protect the right of states to maintain militias." Dennis Henigan of Handgun Control, Inc., says the amendment is "about the distribution of military power in a society between the federal government and the states. That's all they [the Framers] were taling about." As he it elsewhere, "The Second Amendment guaranteed the right of the people to be armed as part of a 'well regulated' militia, ensuring that the arming of the state militia not depend on the whim of the central government" [emphasis added].
This interpretation is diametrically opposed to the view that says the amendment affirms the right of private individuals to have firearms. The ACLU, HCI, and others reject this, arguing that the amendment only affirms the right of the states to maintain militias or, today, the National Guard. These competing interpretations can't both be right.
The first problem with the militia interpretation is that the amendment speaks of a right and, or course, the amendment appears in the Bill of Rights. (Powers with respect to the militia are enumerated in Articles I and II of the Constitution.) No other amendment of the original ten speaks of the States having rights. Nowhere, moreover, are rights recognized for government (which in the Framers' view is the servant) but denied to the people (the masters). Henigan and company are in the untenable position of arguing that while the Framers used the term "the people" to mean individuals in the First (the right to assemble), Fourth (the right to be secure in person, houses, papers, and effects), Ninth (unenumerated rights), and Tenth (reserved powers) Amendments, they suddenly used the same term to mean "the States" in the Second. That makes no sense.
More important, the diction and syntax of the amendment contradict Henigan's argument. If the Framers meant to say that States have a right to organized militias or that only people who are members of the militia have a right to guns, why would they say, "the right of the people to keep and bear arms shall not be infringed"? The Framers were intelligent men with a good grasp of the language. As we can see from the Tenth Amendment, they were capable of saying "States" when they meant States and "people" when they meant people. They could have said, "The right of the States to organize and arm militias shall not be infringed," though that would have contradicted Article I, Section 8, which delegated that power to Congress. (Roger Sherman proposed such language, but it was rejected.) Or, they could have written, "The right of members of the state militia to keep and bear arms shall not be infringed," though that would have contradicted Article I, Section 9, which forbids the States to "keep TroopsÖin time of Peace." They didn't write it that way. They wrote "the people," without qualification. (The Supreme Court said in the 1990 case U.S. v. Verdug-Urquidez that "the people" has the same meaning--individuals--throughout the Bill of Rights.)
But say the gun controllers, what of that opening phrase, "A well regulated militia being necessary to the security of a free state"? Here's where we have to do some syntactical analysis. James Madison's original draft reversed the order of the amendment: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country." Perhaps this version makes Madison's thought more clear. His sentence implies that the way to achieve the well-armed and well-regulated militia that is necessary to the security of a free state is to recognize the right of people to own guns. In other words, without individual freedom to own and carry arms, there can be no militia. As to the term "well regulated," it does not refer to government regulation. This can be seen in Federalist 29, where Alexander Hamilton wrote that a militia acquired the degree of perfection which would entitle them to the character of a well regulated militia" by going "through military exercises and evolutions, as often as might be necessary."
What the Syntax Tells Us
How do we know that the "well regulated militia" is defined in terms of an armed populace and not vice versa? The syntax of the sentence tells use. Madison and his colleagues in the House of Representatives chose to put the militia reference into a dependant phrase. They picked the weakest possible construction by using the participle "being" instead of writing, say, "Since a well regulated militia is necessaryÖ" Their syntax keeps the militia idea from stealing the thunder of what is to come later in the sentence. Moreover, the weak form indicates that the need for a militia was offered not as a reason (or condition) for prohibiting infringement of the stated right but rather as the reason for enumerating the right in the Bill of Rights. (It could have been left implicit in the Ninth Amendment, which affirms unenumerated rights.)
All of this indicates the highly dependent and secondary status of the phrase. Dependent on what? The main, independent clause, which emphatically and unequivocally declares that the people's right to have guns "shall not be infringed." (Note: the amendment presupposes the right; it doesn't grant it.)
Let's go at this from another direction. Imagine that a Borkian inkblot covers the word "well regulated militia." Al we have is: "A [inkblot] being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." To make an intelligent guess about the obscured words, we would have to reason from the independent phrase. We would know intuitively that the missing words must be consistent with the people having the right to keep and bear arms. In fact, anything else would be patently ridiculous. Try this: "A well-regulated professional standing arming (or National Guard) being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." That sentence would bewilder any honest reader. He'd ask why such unlike elements were combined into one sentence. It makes no sense. It's a non sequitur.
Imagine the deliberations of the Committee of Eleven, the group of House members to which Madison's proposed bill of rights was referred. Assume that one member says, "We should have an amendment addressing the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the nation government to respect the right of the State to organize and arm militias." "No," replies another member. "The amendment should reflect the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the government to respect the people's right to bear arms." If both members were told to turn their declarative sentences into the imperative form appropriate to a bill of rights, which one would have come up with the language that came the Second Amendment? The question answers itself.
The Committee of Eleven reversed the elements of Madisonís amendment. But that, of course, did not change the meaning, only the emphasis. In fact, the reversal made it a better sentence for the Bill of Rights. As adopted, the amendment begins by quickly putting on record the most important reason for its inclusion into the Bill of Rights but without dwelling on the matter; thatís what the weak principle, "being," accomplishes. The sentence then moves on to the main event: "the right of the people to keep and bear arms." The framers correctly intuited that in a Bill of Rights, the last thing the reader should have ringing in his mindís ear is the absolute prohibition on infringement of the natural right to own guns.
I am not suggesting that the Framers said explicitly that the militia reference should go into a dependent participial phrase so that future readers would know that it takes it meaning from the independent clause. They didnít need to do that. To be fluent in English means that one intuits the correct syntax for the occasion and purpose at hand. Much knowledge of a language is tacit. We have to assume that the Framers knew what they were saying.
What Language Experts Say
This analysis is seconded by two professional grammarians and usage experts. In 1991, author J. Neil Schulman submitted the text of the Second Amendment to A. C. Brocki, editorial coordinator of the Office of Instruction of the Lost Angeles Unified School District and a former senior editor for Houghton Mifflin, and Roy Copperud, now deceased, the author of several well-regarded usage books and a member of the American Heritage Dictionary usage panel. Brocki and Copperud told Schulman that the right recognized in the amendment is unconditional and unrestricted as to who possesses it.
Asked if the amendment could be interpreted to mean that only the militia had the right, Brocki replied, "No, I canít see that." According to Copperud, "The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people." As to the relationship of militias to the people, Schulman paraphrased Brocki as saying, "The sentence means that the people are the militia, and that the people have the right which is mentioned." On this point, Copperud, who was sympathetic to gun control, nevertheless said, "The right to keep and bear arms is asserted as essential for maintaining the militia."
It is also important to realize that, as a matter of logic, the opening phrase does not limit the main clause. As the legal scholar and philosopher Stephen Halbrook had argued, although part one of the amendment implies part two, it does not follow that if part one doesnít obtain, part two is null and void. The sentence "The earth being flat, the right of the people to avoid ocean travel shall not be infringed" does not imply that if the earth is round, people may be compelled to sail. The Framers would not have implied that a right can properly be infringed; to call something a right is to say no infringement is proper. As another philosopher and legal scholar, Roger Pilon, has written, the amendment implies that the need for a militia is a sufficient but not a necessary condition for forbidding infringement of the right to have firearms. The sentence also tells us that an armed populace is a necessary condition for a well-regulated milita.
A word about the punctuation: most reproductions of the Second Amendment contain a plethora of commas: "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." But according to the American Law Division of the Library of Congress, this is not how the amendment was punctuated in the version adopted by Congress in 1789 and ratified by the States. That version contained only one comma, after the word state which, by the way, was not uppercase in the original, indicating a generic political entity as opposed to the particular States of the Union. If the superfluous commas have confused people about the amendmentís meaning, that cause of confusion is now removed.
One need not resort to historic materials to interpret the Second Amendment, because it is all there in the text. Nevertheless, it is appropriate to point out that history supports, and in no way contradicts, that reading. Gun ownership was ubiquitous in eighteenth-century America, and the Founding Fathers repeatedly acknowledged the importance of an armed citizenry. They also stated over and over that the militia is, as George Mason, the acknowledged father of the Bill of Rights, put it, "the whole people." Madison himself, in Federalist 46, sought to assuage the fears of the American people during the ratification debate by noting that an abusive standing army "would be opposed [by] a militia amounting to near half a million citizens with arms in their hands." That would have comprised the entire free adult male population at the time. Thereís no question that at the center of the American peopleís tacit ideology was the principle that, ultimately, they could not delegate the right of self-defense to anyone else and thus they were responsible for their own safety.
Perhaps the deterioration of American education is illustrated by the high correlation between the number of years a person has attended school and his inability to understand the words "the right of the people to keep and bear arms shall not be infringed." It is more likely, though, that those who interpret the Second Amendment to preclude an individual right to own guns are driven by their own political agenda. Whichever the case, they do themselves no credit when they tell us that a simple, elegant, sentence means the opposite of what it clearly says.
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