August 13, 2013 by David K. Sutton
Does The Second Amendment Simply Say, ‘A well regulated Militia shall not be infringed’?
It’s true that we all carry baggage when engaged in a debate. We all have our own ideas about how things should work and what things mean. So when it comes to a debate on guns and the Second Amendment, my baggage is “regulation.” A gun rights advocate will haul around their “unfettered access to firearms” attaché. So it’s likely our interpretations, in a parsing of the Second Amendment, will be quite different.
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.
Gun rights advocates see this as two clauses. The prefatory clause sets up the eventual operative clause. So for their interpretation to be correct, that second comma is really important.
How A Comma Gave Americans The Right To Own Guns (Business Insider) — Gun control proponents argue the founders used commas more frequently than common English today, Ross Guberman wrote in his legal writing blog. Some historians even claim that many states ratified a version of the Second Amendment with only two commas, not three. The extra commas don’t mean much in that context, the argument goes.
Anti-gun academics have also argued the framers really meant “A well regulated militia … shall not be infringed,” the Times said. Phrases surrounded by commas can often be left out of a sentence without damaging the meaning.
Obviously I agree with the anti-gun academic argument. If the Second Amendment really is two clauses, then each clause should stand on its own. But the first, so-called “prefatory” clause doesn’t read properly by itself.
A well regulated Militia, being necessary to the security of a free State
If this clause is to stand on its own, shouldn’t it read more like this?
A well regulated Militia is necessary to the security of a free State
If you replace “being” with “is” and remove the first comma then I would better understand how gun rights advocates interpret the Second Amendment. But it does not say that. The first “clause” doesn’t work by itself. It cannot stand on its own. That means the Second Amendment cannot be seen as two clauses working in tandem. Instead, the Second Amendment is a singular statement.
But wait, there’s more! Equally as important, if not more important, is the third and fourth sections of the Second Amendment, the part gun rights advocates refer to as the “operative” clause. If the third and fourth sections were instead one section, then gun rights advocates would have a much stronger case when claiming the “shall not be infringed” part is directly attached to “the right of people to keep and bear arms” part.
In modern english, gun rights advocates want you to believe this is how the Second Amendment reads, in two distinct sections: A finely tuned civilian army is necessary to secure a free state. The right of the people to own and carry arms shall not be infringed.
But as one whole statement, this is what the Second Amendment actually says: Citizens have a right, that shall not be infringed, to own and carry arms, as part of finely tuned civilian army, to secure a free state.
It’s all about those pesky commas. There’s simply no reason that middle comma should have any greater importance, unless you need to make sections three and four have greater importance than the whole of the text. So that’s why gun rights advocates hang onto that one comma. They must completely and conveniently ignore the other two commas for their interpretation to stand.
— Yes, I’m aware of an alternate version of the Second Amendment text that only has one comma. But the Second Amendment, as passed by congress, has three commas. It is true that the text, as ratified by the states, only contained one comma, but I would like to remind everyone, especially conservatives, that only congress can pass laws. For that reason, the official Second Amendment has three commas, not one. Oh, and the three comma version is preserved in the National Archives. So let’s nip that one in the bud right now. —
Gun rights advocates will likely point out that many of the Founders did not like the idea of a standing army, and they would be correct. Hence the use of the term “Militia” which could also be called a civilian army. But in modern America, we’ve obviously evolved, for better or for worse, beyond this concept. We have a large standing army, and the idea of a civilian army, outside of official government control, is no longer plausible, and is certainly not desirable. Therefore, the nearest thing we have to a Militia in modern America is the National Guard.
Each of the four sections of the Second Amendment are in support of each other. The Second Amendment is not making two statements. It is telling us what is necessary to secure a free state. And I seriously doubt armed anarchy was what the Founders had in mind.
If the original intent was the “right of the people to keep and bear Arms,” with no pre-qualifiers, then that is where the emphasis would be placed. But it was not written that way. If anything, the emphasis is on “well regulated Militia” and “shall not be infringed,” with the middle two sections going along for the ride. So yes, citizens may “keep and bear Arms” in support of a “well regulated Militia” but that is the only reason they are guaranteed that specific right in the constitution.
This interpretation of the Second Amendment, which I believe to be it’s true meaning, does not mean citizens cannot own and carry firearms. It simply means owning and carrying a firearm is not a constitutionally protected right, except for a “well regulated Militia.” And in a modern context, that means the National Guard.
Wikipedia — National Guard members are a subset of the Militia as defined by 10 U.S.C.§ 311. The majority of National Guard soldiers and airmen hold a civilian job full-time while serving part-time as a National Guard member.
So now you see, any absolutist firearm rights argument (e.g. “There’s a Second Amendment, therefore you cannot regulate firearms.”) is a result of a misreading of the Second Amendment. Yes, you can own a firearm. But also yes, the state can regulate the types of firearms and ammunition that can be sold and owned, possibly even including a complete ban on all firearms, except for that which is protected by the constitution, a well regulated Militia (National Guard).
Of course a firearms ban is pretty much untenable in America, and only a small percentage of people are actually advocating a total ban. But make no mistake, the Second Amendment, as written, does not prohibit firearms regulation.
The conservatives who hold 5 of 9 Supreme Court seats disagree. But remember, they carry baggage too.