Breaking Down The Second Amendment

One short, two-clause sentence. That’s all the 2nd amendment is.

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.

Pretty simple, right? Well, apparently not. Few parts of the Constitution are as willfully misunderstood as this one. Granted, that misunderstanding is well-intentioned, but that doesn’t make it right. Let’s break it down, shall we?

First of all, the 2nd amendment is obviously one of the first 10 amendments to the Constitution – the part that is commonly referred to (even back in 1789) as “The Bill of Rights“. The whole point of The Bill of Rights – the reason the Anti-Federalists insisted on creating it – was to secure individual rights against a tyrannical government that might be possible under the Constitution. So it would be pretty nonsensical to read one of those 10 amendments in a way that doesn’t secure an individual right, doesn’t it? But this is exactly what these (admittedly well-intentioned) people do. They tell us that your right to “keep and bear arms” relies on you being part of a “militia” – you gain the right only collectively. But now, I’m getting ahead of myself.

I mentioned before that there are two clauses. These are generally referred to as the “prefatory” and the “operative” clauses. The prefatory clause sets the table and lays out the driving purpose, and the operative clause gets the actual work done. We’ll begin the analysis with the operative clause since it is the easiest to understand (and where the real work of the amendment gets done anyway):

the right of the people to keep and bear arms shall not be infringed.

“the right” – The important word here is “the”. We aren’t talking about “a” right, but “the” right. Think about it this way: if I ask for “a” book off the shelf, that could be any of them. If I ask for “the” book, I’m talking about a specific one – one that definitely already exists. I’m not creating it out of thin air; it’s already here and pre-defined. We aren’t making a right with this amendment – we’re talking about one that is already firmly in existence.

“of the people” – So who does this right belong to? “the people”. Everywhere else in the Constitution where this phrase is used, it refers to everyone – not some nebulous subset like “the militia”. So, this right already exists, and everyone already has it. Madison himself reinforces this reading in Federalist #46, where he talks about the American people as a whole being armed. He sees this as an advantage that we have against tyranny as opposed to the people in the European countries whose governments don’t trust them with weapons. It’s also helpful to remember that Federalist #46 was published in January of 1788 – almost 4 years before the 2nd amendment was ratified. Further proof that this right was not “made” by the 2nd amendment.

“to keep and bear arms” – The right that the people have is to possess, carry, train with, and use (if needed) weapons. They don’t just have to keep them locked up in a display case.

“shall not be infringed.” – No one can take away or limit this right in any way. There is no exception given for “reasonable” restrictions or limitations. There is not a provision for “unless most people think it’s OK”. There is no distinction between hunting or defense uses. These rights shall not be infringed. Period.

Now to look at the first clause:

A well regulated militia being necessary to the security of a free state,

“A well regulated” – These days, people think that “regulations” is just a fancy word for whatever rules the government wants to come up with. Of course, this clause doesn’t talk about “regulations” per se, but about a thing that ends up being “well regulated” in the end. What does that mean? Think about it this way: if you put a flow regulator on a shower head, what does that do? It makes the flow regular – another way to say that would be consistent, or normalized. The whole point of having a well regulated flow of water is to make sure that that water pressure is consistent – the same every time you turn it on. The same sense of “well regulated” is used by the founders here. We need to have a militia capability that is consistently available and of reliable quality across the country, so people need to be familiar and proficient with weapons. They can’t have that level of comfort or availability for defense if they don’t have ready access to those weapons by owning them. It’s as simple as that. This reading is backed up by Hamilton’s argument in Federalist #29:

A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. 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.

It isn’t about them being members of something, or having a bunch of rules to follow – it’s about achieving a state of proficiency in the use of weapons, especially around others.

Also, like I talked about above, the word “a” is used here, as opposed to “the“. The other place in the Constitution where “militia” is mentioned (Article 1, Section 8), refers to “the militia”, and that Congress can make rules about it. So you see, the 2nd amendment isn’t talking about a specific group, but only laying out a theoretical scenario that would apply to any “free state”, further cementing this initial clause as being prefatory in nature.

“militia” – This is the word that causes the most confusion. This word makes people think that the right discussed above isn’t held by the people, but only by members of “militia” units (what people today think of as the National Guard, though this isn’t accurate in the historical context). If you aren’t a member, then you don’t have the right to have weapons. This is of course nonsense, as most gun control advocates insist that they don’t want to take hunting rifles away and hunting has nothing to do with militia membership. Luckily, the founders left us with a definition of “militia”. Less than 6 months after the 2nd amendment was ratified, Congress passed The Militia Act of 1792, which included this definition:

…each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…

All white males aged 18 – 45, who were healthy and not in jail. That’s what the militia was. Mind you, this is not worded as eligibility for service, but these qualifications make you an immediate member in the militia, whether you like it or not.

“being necessary to the security of a free state,” – Everyone listed above had to be a member of the militia, and that militia had to be consistently available in all the states (“well regulated”) because we didn’t have a standing army (since we were a “free state”, not a police state) to provide security in the case of an invasion or domestic uprising. We may not have time to raise an army in a crisis and we need to have enough people who are able to defend themselves until we can.

So, taken all together, the amendment means basically this:

Since we need to have a competent militia that is available nationwide to defend us in case of an immediate crisis, everyone needs to have the right to keep and train with weapons so they may join in that militia effort if needed.

That’s all there is to it.

As an addendum: Gun control advocates will say that machine guns and other “assault weapons” have no place in modern society and shouldn’t be counted as “arms” because the founders couldn’t have envisioned them. There are two responses to this argument:

1) The founders couldn’t have imagined cell phones, Internet, 24-hour worldwide cable news, satellite communications, nationwide newspapers, radio, or even telegraphs. Should the 1st amendment speech protections not apply to those forms of technologically-advanced media as a result? Should 4th amendment search protections not apply to wiretaps, or email systems? Is there ANY other part of the Constitution that we interpret as being technologically-limited to 1791?

2) Yes, the founders allowed citizens to own smoothbore, single-shot, muzzle-loading long guns, and these seem weak to us today in the context of machine guns, grenade launchers, and the like. But these were THE MOST technologically-advanced personal weapons available at the time (along with being the standard issue weapon of the military in those days). The founders certainly could have limited the people to lesser weapons (bow-and-arrow, swords, knives, clubs) but they did not. They chose to allow the people the same weapons that the military had. Why shouldn’t that principle endure?

Opponents of the 2nd amendment are clear on the 1791 definition of arms, and want that one to be used. As demonstrated above, I don’t think they would be quite so happy living with the rest of that sentence as if it were 1791, though.

Commas have a purpose in the English language, and I don’t think it is to say “read the rest of this sentence like it’s 200 years ago”.

The Constitution lays out a set of principles that should be followed. It isn’t about living in the past – it’s about figuring out what the founders were trying to accomplish and applying that same thinking about principles to today. Freedom of speech applies just as much to your blog as it applies to your quill pen – it should be a concept that is technologically-neutral. The founders didn’t literally want us to be equipped with smoothbores – they wanted us to be as well equipped as the military. They didn’t want weapons limited to the militia, but weapons to be freely available so that anyone could join and be useful in the militia.

A sentence taken out of context (“for our own good”) can be a dangerous thing for liberty.

One comment

  1. […] in my interpretation. This has come up as a criticism of my argument in the recent article on the Second Amendment. I’d like to explain my point of view on […]

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