I often hear those who support gun rights quote the part that says “the right of the people to keep and bear Arms, shall not be infringed,” but I rarely hear anyone - even those on the gun control side of the debate - mention the “well regulated” part.
I find this odd for two reasons.
First of all, the phrase is right at the beginning of the amendment! How can anyone miss it?
Secondly, it seems like pretty loaded words that might bolster the argument from those who desire reasonable (and even unreasonable) gun control measures. Because if one can regulate they can have regulaTIONS, right?
So why is it that gun control advocates don’t delve into that phrase more? And has the SCOTUS or any other courts ruled specifically on what those two words actually mean?
Short answer: The Supreme Court of the United States has determined that the phrase has no legal meaning. See District of Columbia v. Heller, 554 U.S. 570 (2008).
What I want to know is what three commas are doing in that one sentence, at least one being completely superfluous. You can read the core sentence as “A well regulated Militia shall not be infringed.” In fact, the phrase that’s deemed the only meaningful part of the amendment can be deleted and leave more coherent sense behind.
I really, really wish Da Faddahs had gotten the clumsies on some other amendment (not the 1st).
I’ve always liked the second comma in this one: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;”
To me, that makes it look like a potential POTUS must be either a) a natural born Citizen at the time of the Adoption of the Constitution, or b) a Citizen of the United States at the time of the Adoption of the Constitution.
The Constitution was adopted in 1787, so that would make Zachary Taylor, born in 1784, the last legal president of the US. (Note that his predecessors, Tyler and Polk, were born in 1790 and 1795, respectively, and thus would not have held office legally.)
I hold with the theory that it means “in good working order, functional, capable of doing what it’s supposed to”. My reasoning is as follows:
The Constitution proposed to replace the Articles of Confederation explicitly forbade the states from having their own state armies or navies, and gave the federal government co-authority with the state governments over the militia- the able bodied civilians who could be summoned to arms. This was very controversial at the time; particularly, the fear was voiced that once the Federal government had a standing army AND authority over the militia, it could simply order the public disarmed, and impose whatever measures it wanted. (See The Antifederalist No.28 ) Alexander Hamilton, James Madison and John Jay wrote a series of essays called the Federalist Papers that went through the proposed constitution article by article and answered critics’ objections. The Federalist No. 29 is all about the Militia. In it, Hamilton consistently uses the word “militia” in a context where it’s clear that he means, in his own words “the body of the yeomanry”; and he actually uses the phrase “well regulated militia” in the sense given above, while specifically denying that it was either necessary or practical to require every man with a gun to be under government control:
So in context it seems to me that the Second Amendment is saying that since the states need armed citizens (they’re forbidden to have “troops”), the federal government is to be forbidden to disarm the citizenry under pretext of it’s Article One Section Eight authority.
Whatever it means has no bearing on the right to bear arms. I read it as a justification for that right. But it seems crystal clear to me that the right to bear arms is not to be infringed no matter what the first part means.
Really. Because I was reading that comma to mean that the restriction only held at the time of Adoption. But then I don’t understand Deutscher comma use.
(Whaddaya mean it’s not German? Who else capitalizes all the nouns!?)
OP, you’re not going to get a serious critical answer from most Yanks, even most Yanks on this board. The “right to bear arms” has passed into a religious tenet, the constitution into a holy text. Analysis of what the framers were actually trying to say is unwelcome.
Apparently the amendment was meant to ensure every man would be ready to bring his own musket if called up for militia duty. (In fact, I think “regulated” means “supplied,” i.e., armed.) Hardly relevant now. The National Guard provides its troops’ weapons.
Right. It’s so holy we’ve never amended it since it 1787. We’ve never seriously discussed the framer’s intentions either. Nope. It just isn’t done today.
Twenty-seven words but a wealth of possible interpretations.
The Second Amendment means:
Individual citizens have a right to own firearms.
Citizens have a right to form armed militia groups.
Individual citizens have a right to own military rage weapons.
The states can form their own military units to defend themselves against federal power.
Citizens have a right to join the armed forces.
The federal government has the authority to regulate individual ownership of firearms.
The federal government has the authority to regulate militia groups.
Citizens have the right to own weapons but only as part of a government-sanctioned militia group.
Citizens have the right to own muskets and other 18th century weapons.
I’ve seen all these arguments made. My personal opinion is we should go with what I feel is the most obvious interpretation - that the Second Amendment says individual citizens have the right to own firearms. It may not be 100% absolute but it should be interpreted as broadly as possible.
It’s also my personal opinion that this is a bad idea. I don’t think the people who wrote the Second Amendment foresaw the developments in firearms technology that have occurred since 1791. But they included means of amending the Constitution. If we feel unrestricted individual gun ownership is a bad idea, we can repeal the Second Amendment.
Oh, here, it’s in imperative passive at the end: “shall [not] be infringed.”
Infringed? What’s that? Well, usually today we use that word in intellectual property law. It implies a right which is reserved to someone and not to someone else.
So, unless “infringed” has radically changed in meaning in 200 years, the key word of the whole amendment is about not infringing on somebody’s right to do something–about not doing that without authorization. In a sense, the text as written is about denying access to a right. Whoa. That makes it entirely different from the general human rights we associate with say, the rest of the Bill of Rights.
So what is this that should not be infringed, and who would be infringing?
“A [well regulated] Militia.”
It’s those three commas, everything between them is just describing the militia.
A Militia shall not be infringed.
A well regulated Militia shall not be infringed.
A well regulated Militia, blah blah blah, justification blah blah, shall not be infringed.
“A well regulated Militia” is described both as, “being necessary to the security of a free State,” and as, “the right of the people to keep and bear Arms.” Your right to bear arms is vested in the well regulated militia. You have no defined right to bear arms outside a well regulated militia.
“A well regulated Militia shall not be infringed.” That’s it. That’s the whole active text.
No individual right to bear arms outside the militia. Quite the contrary. That would be infringement.
Don’t like it? Want an individual right to bear arms, Ice? You gotta amend the constitution, not me. Or just get a Supreme Court that doesn’t understand grammar and punctuation to reinterpret it for you.
Oh, they did? How nice for you, and all the People, all the Folk, all the PeeWee Kings and Viking Lords. How nice for a drive-by. Maybe we can catch a movie premiere this weekend and get terrorized. Oh go to church and get shot by a religious fanatic.
But hey, what’s the point of even trying to explain?
Of course, I grant my interpretation in the previous post could well be wrong. The Framers liked to sprinkle commas through the text as liberally as an enthusiastic child whose grandmother lets him sprinkle the powdered sugar on ginger cookies.
But then we’re back to what Little Nemo said: They may have wanted broad firearm ownership, but that’s ill-advised today.
(If you disagree, consider this: An English king once ruled that all his subjects were obliged to bear arms at their expense. Ask yourself this: Would you support mandatorily arming absolutely all able-bodied adults in the country, with no freedom not to bear arms? Whom would you rather we not arm? Because that guy is free to carry firearms under present common law, and he doesn’t have any obligation to society in return.)
Further, we can add the proviso that their archaic (and/or political and weaselly) English makes little sense in modern English, and is irritatingly vague.
If you insist on being ruled by a text infested by intrusive and non-meaningful commas, might I suggest the poetry of Edward Estlin Cummings instead?
Is this only the case with Second Amendment rights? Has the invention of the internet and social media sites made the First Amendment guarantees of free speech ill-advised today? Has narcotics smuggling made the Fourth Amendement’s protection against unreasonable search and seizure ill-advised?
I don’t think anyone would support that. The freedom to exercise a right must include the freedom not to exercise it. The right to vote must include the right not to vote, for example.
And I can wish for others not to use their rights; if I hated Muslims, I might wish for people to stop practicing Islam. But “whom we would rather” not exercise their rights has no bearing on the fundamental rights at hand; it’s not my decision to make on others’ behalf.
