What does the first part of the 2nd amendment mean?

[Moriarty]

Ask a typical person what the 2nd Amendment of the US Constitution says, and you are likely to get some variation of the phrase “the right to bear arms.”

However, in law, words matter, and anybody giving that answer is ignoring the initial clause in the amendment.

In its entirety, the 2nd Amedment reads, “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.”

So, what’s this business about “a well regulated militia being necessaty to the security of a free State”? If the framers truly intended for there to be a right to bear arms, why not simply state that? It’s not like the first amendment reads, “The free exchange of ideas being the cornerstone of a successful government, Congress shall make no law abridging the freedom of speech, or the press…”

What do you make of this editorializing in the 2nd amendment, if indeed that is what it is? Or, is this a qualifier to the 2nd amendment, such that it is intended to apply to well regulated militias (these words, of course, being written before the concept of public policing became the social norm)?

Truly, I’m not trying to advocate for the abolishment of guns, or gun rights. I am not a gun owner, and I believe that there are sociological studies showing that gun ownership does not make a person safer, but I also respect individual rights, and understand the argument that outlawing guns won’t remove guns from outlaws.

Instead, I’m just trying to get a handle on the enigmatic words I read at the beginning of Amendment #2. What do you make of it?

[Shodan]

It means “the federal government may not interfere with the right of the people to keep and bear arms, because the states might need a militia and therefore the people would be experienced in the use of weapons and could hit the ground running and be already supplied with weapons”.

Except more succinctly.

Regards,
Shodan

[XT]

IIRC, the “A well regulated Militia being necessary to the security of a free State” was part of a more complete sentence that was contatenated (by committee of course) onto another shortened statement “the right of the people to keep and bear Arms shall not be infringed.”…giving us this marvel of clarity we have today. The writers certainly knew and understood what they meant, and I think would be shocked at how it’s interpreted today. I believe the full sentences for both are in the Federalist Papers or maybe the notes from the committee.

Anyway, here is Unca Cecil’s take on it FWIW:

Historically there have been two interpretations of the Second Amendment: the states-rights argument and the individual-rights argument. The states-rights view is that the Second Amendment merely guarantees the states the right to organize militias and citizens the right to join. (Militia here means any armed force raised for the common defense, not just the national guard.) The individual-rights view is that the Second Amendment means what it says: citizens have the right to keep and bear arms. The states-rights view currently prevails in federal case law, but the individual-rights view is probably closer to the framers’ intent. A reasonable restatement of the amendment might go something like this: “Since we as a nation have found it necessary to organize citizen militias to defend against tyranny and may be compelled to do so again, and since these militias are necessarily composed of volunteers supplying their own weapons, the right of individuals to keep and bear arms shall not be infringed.”

OK, some gun-control advocates will concede, but that merely means infringed by the federal government. As an article in Mother Jones put it, “The legal precedents are clear: Almost any state or local gun-control action is fine; the Second Amendment does not apply. On the federal level, only laws interfering with state militias are prohibited.”

This is a crock. The legal precedents are far from clear. They are also pathetically sparse, suggesting a reluctance on the part of the courts and the legal community generally to deal with the issue. (An enlightening article in the Yale Law Journal a few years ago was titled “The Embarrassing Second Amendment.”) In almost every other aspect of law the Bill of Rights has been broadly construed to restrain the states as well as the federal government. Few today would argue that states can abrogate the right to free speech guaranteed by the First Amendment. Yet many are prepared to let them gut the second, on the grounds that the framers did not foresee urban violence on the scale we face now. Maybe they didn’t, but so what? Civil-liberties advocates don’t accept urban violence as an excuse to curtail other constitutional rights, such as the protection against unlawful search and seizure.

Accepting the Second Amendment at face value doesn’t mean you can’t regulate gun ownership. No one can argue plausibly that the authors of the Bill of Rights meant to make the authorities powerless to disarm criminals. The framers likely would have objected to a blanket proscription of handguns, which they would have seen as legitimate weapons of self-defense, and arguably they would have opposed a ban on assault rifles, the AK-47 being to today’s oppressed what the long rifle was to those of 1776. But local gun registration presents no obvious constitutional problems. Criminals don’t register guns of course; that’s the point. Arrest a carful of mopes with guns and no permits and you have a good ipso facto case for throwing the book at them. How much better to approach gun control on a reasonable basis rather than make a religious war out of it.

If anyone has a link to where the full texts of the first half of the 2nd is, I would appreciate it…I remember there was more to it but don’t have time to look it up where I’m at atm.

-XT

[mlees]

@xtisme

If anyone has a link to where the full texts of the first half of the 2nd is, I would appreciate it…I remember there was more to it but don’t have time to look it up where I’m at atm.

-XT

I am not sure if this is what you are looking for:

America's Founding Documents

@from link above

Amendment II

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.

In a download of an image of the Bill of Rights from the same web site, those (quoted) words above come verbatim from “Article the Fourth”, which is explained below by the underlined (by me) section.

@Bills of Rights description

On September 25, 1789, the First Congress of the United States therefore proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two proposed amendments, which concerned the number of constituents for each Representative and the compensation of Congressmen, were not ratified. Articles 3 to 12, however, ratified by three-fourths of the state legislatures, constitute the first 10 amendments of the Constitution, known as the Bill of Rights.

It’s interesting, though, that these first ten amendments were less wordy than most of the ones that followed.

[robby]

@Atomicktom

Ask a typical person what the 2nd Amendment of the US Constitution says, and you are likely to get some variation of the phrase “the right to bear arms.”

However, in law, words matter, and anybody giving that answer is ignoring the initial clause in the amendment.

Cecil has another great comment in the article mentioned above:

@CECIL ADAMS

While the first half of the Second Amendment is no miracle of clarity, the second half is about as plain as it can be.

…But it’s silly to think the framers would guarantee a right in one half of the Second Amendment only to allow the government to unguarantee it in the other half.

[Frylock]

It’s always seemed clear to me, which probably means I’m missing something. It can be paraphrased as:

In order to be secure, a free State must have a militia in good working order. Because of this, no one’s right to keep and bear arms will be infringed.

I don’t think this means people’s right to bear arms should be preserved as long as its relevant to the maintenance of a militia. Rather, the thing seems to be saying that the way to ensure the maintenance of militias is to not infringe on the right at all. To try to judge that this or that person’s keeping or bearing of arms is or is not relevant to the maintenance of a militia is to go down a dangerous slippery slope, and the best thing is just to refuse to make judgments about this kind of relevance at all.

So far so good. The problem is, it turns out, a well regulated militia isn’t necessary for the security of a free state. The constitution seems to contain (implicitly) a statement of fact, which seems to have turned out to be false. And the constitution implies that one of its normative statements is valid because of the truth of this statement of fact–only the statement of fact turns out to be false.

I’m not sure what to do about this. One possibility might be to deny that what is implied is simply a statement of fact, but rather, is supposed to be a norm–that things aren’t going constitutionally unless a well regulated militia is necessary to the security of a free state. Another possibility might be to say that since the statement of fact turns out to be false, the norm that is supposed to take its validity from that fact no longer applies, and the gov’t can do whatever it pleases concerning the right to keep and bear arms. Another possibility might be to say that even though the implied fact turns out to be no fact at all, nevertheless, the norm following it remains the norm, as it is after all written down right there in the bill of rights, so keep away from our guns. Another possibility is that we simply have an incoherent constitution and need to make another amendment to clarify it. Another possibility is to argue persuasively that a well regulated militia really is still necessary to the security of a free State.

-FrL-

[Czarcasm]

I think we should start with the definition of “well-regulated militia” as a whole term. Too many times I have seen discussions of this sort where people spew out “The militia was every able-bodied man who had a personal weapon!”(or statements that mean pretty much the same thing), but where does the “well-regulated” part of the phrase fit in? What would be the difference between a well-regulated militia and an unregulated militia? Who, exactly, is supposed to be regulating this militia?

[Polycarp]

mlees, I believe he’s talking about the ~450 proposals sent to the First Congress for amendments, drawing from which Madison compiled the 12 articles Congress submitted to the states. Examples of them are given here and there, but I’ve never seen the precursors to the present Second Amendment. Anyone have a source that gives them?

[Dinsdale]

I posted recently about my recent “conversion” re: the 2d amendment. One of the many facets of my decision-making reflected the terribly high value I place on my right to privacy, which I currently see being progressively infringed upon. And whatever ambiguity the 2d may contain, it is sure a heck of a lot clearer than any penumbra!

[Polycarp]

@Czarcasm

I think we should start with the definition of “well-regulated militia” as a whole term. Too many times I have seen discussions of this sort where people spew out “The militia was every able-bodied man who had a personal weapon!”(or statements that mean pretty much the same thing), but where does the “well-regulated” part of the phrase fit in? What would be the difference between a well-regulated militia and an unregulated militia? Who, exactly, is supposed to be regulating this militia?

Oddly enough, this is the point at which Originalism in Constitutional law plays a big part. Because in 1789, that was the meaning of the term “militia” – the (free adult male) citizenry which could be called to arms in case of invasion or rebellion. And the last time people brought out the big guns, so to speak, on a GD Second Amendment debate, someone put forth contemporary examples of “well regulated” meaning “properly equipped”, i.e., in this case having their own weapons to use, therefore ready as an effective militia in case of need. We’re 230 years away from that time and usage, to be sure, but I think we start from as good a comprehension as possible of what they likely meant. Then we can apply how times have changed, and find out where it takes us.

[Scumpup]

Well regulated defined.

[Czarcasm]

@Polycarp

Oddly enough, this is the point at which Originalism in Constitutional law plays a big part. Because in 1789, that was the meaning of the term “militia” – the (free adult male) citizenry which could be called to arms in case of invasion or rebellion. And the last time people brought out the big guns, so to speak, on a GD Second Amendment debate, someone put forth contemporary examples of “well regulated” meaning “properly equipped”, i.e., in this case having their own weapons to use, therefore ready as an effective militia in case of need. We’re 230 years away from that time and usage, to be sure, but I think we start from as good a comprehension as possible of what they likely meant. Then we can apply how times have changed, and find out where it takes us.

Then the contemporary difference between “militia” and “well regulated militia” would be that the latter were properly equipped? This definition brings up an important question. In our modern society, what is the definition of “properly equipped”? Equipped to do what, exactly?
Defend against personal attack?
Defend against attack from other governments?
Defend against tyranny from our own government?

Is there a purpose for this “well regulated militia” that is not already being filled by other groups, like the police and our military?

[BrainGlutton]

@Atomicktom

What does the first part of the 2nd amendment mean?

It means not even the people who drafted it were clear on what it was supposed to be for.

It means, “We’re a cowardly bunch of weasel-wording wusses who are going to pass our inability to make a coherent political settlement on to future generations.”

It also means, arguably, that the “well-ordered militia” is intended to be, not an arm of the state, but a countervailing populist military force against the state; one more reason the Second Amendment needs to be scrapped.

[Bricker]

Wait until the Supreme Court releases their opinion in Heller, and we’ll see what it means then.

[Stealth_Potato]

@Frylock

So far so good. The problem is, it turns out, a well regulated militia isn’t necessary for the security of a free state.

Oh, indeed? The key word here is “free.” Had the amendment simply said “necessary to the security of a state,” I would agree - a professional standing army is more than sufficient to secure a state, especially if it is large, well-funded, unrestrained and allowed to act with impunity internally as well as externally. However, for a state to remain free, the people must have no cause to fear their government, and must be empowered to change and influence it. To suggest that the government should have a complete monopoly on armed force is contrary to this interest.

Not to mention, I would place the right to effective self-defense on the list of liberties that are necessary for any society to even be considered “free;” or, for that matter, civilized.

@Czarcasm

Who, exactly, is supposed to be regulating this militia?

You err by assuming that “well-regulated” refers to regulation as control. Well-regulated at the time meant “in good working order,” and has no connotations of government oversight or restriction.

[mlees]

@BrainGlutton

It means not even the people who drafted it were clear on what it was supposed to be for.

It means, “We’re a cowardly bunch of weasel-wording wusses who are going to pass our inability to make a coherent political settlement on to future generations.”

It also means, arguably, that the “well-ordered militia” is intended to be, not an arm of the state, but a countervailing populist military force against the state; one more reason the Second Amendment needs to be scrapped.

I don’t understand this logic.

How did they expect any amendment forwarded to the states for ratification to get passed if it was not clear in meaning (to themselves, and the folks who were going to vote on them)?

[Stealth_Potato]

@BrainGlutton

It also means, arguably, that the “well-ordered militia” is intended to be, not an arm of the state, but a countervailing populist military force against the state; one more reason the Second Amendment needs to be scrapped.

No, you have that wrong. The purpose of an armed populace - the citizen militia - is to provide for the defense of the liberty of the people and the security of the state. So long as the government also operates with these goals in mind, the militia is a force for the state, not against it.

However, should the legal institutions meant to safeguard our liberty and our control over our government prove insufficient, the situation changes considerably. If you are arguing that the people should not have the ability to defend themselves from a tyrannical state, then I must respectfully disagree with you.

[BrainGlutton]

@Stealth Potato

If you are arguing that the people should not have the ability to defend themselves from a tyrannical state, then I must respectfully disagree with you.

The people cannot defend themselves from a tyrannical state with small arms. Saddam Hussein ruled a population armed with AK-47s; it didn’t help.

[Czarcasm]

@Stealth Potato

You err by assuming that “well-regulated” refers to regulation as control. Well-regulated at the time meant “in good working order,” and has no connotations of government oversight or restriction.

Was that the only definition of “well-regulated” at that time, or is that the definition some people choose to follow because it frees up the second part of the Second Amendment?
From Scumpup’s link, it seems that(according at least to The Federalist Papers #29), “Hamilton indicates a well-regulated militia is a state of preparedness obtained after rigorous and persistent training. Note the use of ‘disciplining’ which indicates discipline could be synonymous with well-trained.” I don’t think just having a weapon in your possession quite qualifies, at least according to Hamilton’s definition of the term.

[Frylock]

@Stealth Potato

Oh, indeed? The key word here is “free.” Had the amendment simply said “necessary to the security of a state,” I would agree - a professional standing army is more than sufficient to secure a state, especially if it is large, well-funded, unrestrained and allowed to act with impunity internally as well as externally. However, for a state to remain free, the people must have no cause to fear their government, and must be empowered to change and influence it. To suggest that the government should have a complete monopoly on armed force is contrary to this interest.

Not to mention, I would place the right to effective self-defense on the list of liberties that are necessary for any society to even be considered “free;” or, for that matter, civilized.

So you’re taking the fifth option I listed:

Another possibility is to argue persuasively that a well regulated militia really is still necessary to the security of a free State.

There’s a couple of problems with the argument you’ve given.

For one thing, if the people are supposed to have no reason to fear their government, then rifles and machine guns aren’t going to do the trick. They’re going to need tanks. And bombs. And special ops forces. And stuff like that. Lots of it. This is only a problem for your argument if you don’t think the second amendment covers the right to keep and bear this kind of stuff as well. Do you?

A more direct problem with your argument is as follows. You say that a government monopoly on arms is contrary to the possibility that people be empowered to change and influence the government. And you also say that a state is not free unless its people have the power to change and influence the government. And there seems to be a suppressed premise in your argument to the effect that people do not have the power to change and influence their government unless they have free access to arms. I’d deny the suppressed premise, as well as the first express premise I just listed. We have in place a perfectly nice way for the people to change and influence their government without resorting to armed conflict–the democratic process. That we have this in place shows that access to arms is not necessary for popular empowerment.

So far you haven’t given a good argument that free popular access to arms is necessary to the security of a free state. I think it would be hard to give an argument for this conclusion. For we have, right now, at least fifty free states which are quite secure, and in which free popular access to arms is not generally guaranteed. Since we have this counterexample to the claim of necessity, it seems the claim can not be true.

-FrL-