Second Amendment Follies, Part 1: An Inconvenient Clause


Let’s be clear: Americans have a right to own guns. But it’s not a constitutional right. And it’s not a “God-given” right. It’s a right conferred by the rulings of a “conservative” Supreme Court, in a grotesquely distorted reading of the Second Amendment.

But in the interests of accuracy and satisfying curiosity, let’s consider the Second Amendment in more detail. We’ve touched on this topic in a previous discussion, but it was hardly exhaustive. In fact, it was quite cursory, and was designed to show that the amendment is a semantic mess that, at the very least, casts serious doubts on the gun culture’s claims of a constitutional right to be armed. And as long as there is one scintilla of doubt, then you cannot say (as many do) that there is an absolute right enshrined in the Constitution to tote a hogleg.

The gun culture tries to dance around the actual meaning of the Second Amendment in several ways. First of all, it simply ignores the first part of the sentence, the inconvenient explanation for its existence:

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

And instead, gunsters just cut to the part they actually like…

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

You seriously will hear many of them simply quote that second half as representing the entire Second Amendment (as on that handy-dandy magnetic sign pictured above), perhaps followed by a haughty “what part of that don’t you understand?”

How about the part they omitted? The part which, as we mentioned before, could be construed as the actual subject of the sentence. The part which, whether one reads it as the subject or not, is placed at the beginning and is clearly crucial to understanding the Amendment’s meaning and purpose.

Even when they acknowledge this elephant in the living room, the gun fanatics try to diminish its importance. They often try to dismiss the opening as merely a “justification clause” while the second half is the actual “rights clause”; or alternatively, “prefatory clause”, and “operative clause”. Nice words, but they don’t change anything: the beginning clause still expresses the purpose and reason for the amendment being drafted in the first place: i.e., to ensure a “well-regulated militia”. The gun culture’s conclusion that “gun rights” were not meant to be limited to this purpose alone is based on clues extraneous to the amendment itself, and indeed extraneous to the Constitution. (Incidentally, in strict grammarian usage, the two phrases referred to are not really “clauses”; but since that’s the label they’re commonly given, we won’t be sticklers on this point for the time being.)

Suppose you opened up a cookbook and found a passage like this:

A well-made fruitcake being necessary for a traditional Christmas celebration, you should make certain to have a supply of citron on hand.

Would you conclude that this sentence was written to encourage everyone to stockpile citron, all year long? Or would you conclude that it was written to help ensure a well-made fruitcake?

Another tactic the gun culture (and right-wing extremists in general) often employ is playing the “original intent” card; if the Constitution doesn’t say what they want it to, they try to discern what the framers really meant. They do this in part by just playing psychic, though they try to buttress their claims by scratching through an endless supply of documents for “historical context”.

Now certainly historical context is, up to a point, useful and even vital. It’s important, for instance, to understand what words like “militia” and “arms” meant to the Framers who used them. But the “original intent” crowd often turn historical context into a bottomless pit by mining all manner of documents for clues that are really tangential to the point under consideration. I recently had someone try to argue with me, for instance, that the Civil War was really not about slavery because her great-grandfather fought for the Confederacy, and by god he had other motives, and if I would just read all the letters and other papers left by the other Southern peasants, I’d see that they had other reasons for fighting. No doubt. But they weren’t exactly the ones who made the decision to declare war, were they? The ones who did make the decision were quite unequivocal about their motive.

An excellent illustration of how the gun culture utilizes this tactic can be found in what is surely the ultimate compendium of gun culture propaganda: Gun Facts , which is intended to address every “myth” that has been, is being, or ever will be, perpetrated by the “gun control” advocates. It covers gun culture talking points of every possible breed, from mass shootings, to children and guns, to gun laws, to microstamping to concealed carry — and of course to the Second Amendment and court rulings as well. A sleek PDF of Gun Facts can be downloaded for free; and oh by the way while you’re at it, you also can purchase another book heavily marketed within its pages that betrays the real NRA agenda: drawing a bead on “liberals”.

Incidentally, there is a simple but quite reliable litmus test for gauging the probable reliability of any such source of gun “facts”; just check to see whether it places obeisant faith in the absurd “statistic” of 2.5 million defensive gun uses per annum. If it does, there’s an excellent chance it will be just as sloppy about the rest of its “facts”. Gun Facts does, and is. (It also fails another telling litmus test, parroting the claim that Nazi Germany “established gun control” in 1938.) Furthermore, in another section, GunFacts states that firearms are used to prevent 400,000 crimes per day — which would be a whopping 146 million annual DGUs! How can this publication expect to shoot down “gun control propaganda” when it goes gunning against itself?

The main tactic the author uses in the “original intent” argument is to cite passages from several state constitutions (written before and after the U.S. Constitution) that declare residents of those states have the right to be armed for individual purposes. This supposedly demonstrates that the Second Amendment was drawn up with the same intention. See if you can follow the logic here: (a) Several states had constitutions that enshrined an individual right to “bear arms”; (b) the framers of the U.S. Constitution were familiar with these provisions; (c) they did not insert such a stipulation into the U.S. Constitution; (d) therefore, they meant to insert such a stipulation into the U.S. Constitution.

The author also mentions that during the deliberations on the Second Amendment, one senator proposed inserting the words “for the common defense”, but this suggestion was voted down. Evidently, he concludes that rejecting that wording also means a rejection of the concept. (In fact, “for the common defense” is, for one thing, redundant when you already have “well-regulated militia”).  And note the logic here: the absence of a phrase about the common defense means the whole concept is null and void, whereas the absence of a phrase about individual defense means this is clearly what the founders had in mind.

Not content with having shot himself in both feet, the author then turns around and shoots himself in the ass as well by quoting the first draft of the Second 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; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Talk about an inconvenient clause. Why would there be a provision for conscientious objectors if the purpose of the amendment is to guarantee individuals the right to go deer hunting or gun down illegal immigrants invading their homes? Yes, this clause was eventually eliminated (after being retained in the second draft). And evidently, the Gun Facts author believes, in Orwellian fashion, erasing the text of it erases it from ever having existed at all. But if you’re talking about original intent, it’s hard to argue that the Framers had private gun ownership in mind when they talked about military service and religious objections. It’s very clear that they were really talking about a well-regulated militia, whatever that means.

And just what that means is something we’ll be looking at in the next installment.




  1. I understand that the right to bear arms was and is, not a God bestowed or legal right, since later rulings from the courts were what led to our present and more popular views.

    However, are you saying because the amendment does not guarantee each individual the right to own guns based on the language in the law, that means that individuals cannot or do not have the right to personally own guns? It’s actually pretty hard to conceive of a society which allows its citizens to collectively own guns and then does not also permit citizens to own their own private weapons? So without discussing specific gun regulations it does seem that the right for individuals to own guns depends on the symbiotic right to own them as part of a well regulated militia—and visa verse.

    The clause in the first draft of the 2nd amendment need not pertain only to conscientious objectors, but also to the fact that the government should not have the right to force ANY of its citizens to fight wars they do not support! So if anything, it seems to be more about prohibiting the mass conscription of individuals to fight wars at the behest and order of the government, instead of by individual choice based on their citizens individual consent.

    Isn’t Conscientious objection more about an individual’s moral beliefs while a forced draft is more about massive numbers of citizens being forced to follow a government’s military objectives— especially if those objectives make no sense, or simply because their reason tells them that the war itself is immoral? So, in that sense, the draft also involves those libertarians who object to what their government orders them to do, for no truly objective reasons.

    As you know POP, I also belief that it’s fine for conscientious and principled people to own guns, based simply on the fact that defending oneself in certain situations may necessitate a personal, and primal need for self defense, which they consider a personal and moral choice. However, why do we need the ability to buy cases and cases of ammo, purchase military (style) rifles, or order body armor over the internet. I just can’t see why most of us would need 100 round magazines to defend our homes, to satisfy a jungle mentality which is certainly not appropriate in middle class neighborhoods whether we are able to protect ourselves or not.

    I’ve been through all the arguments before and have conclude that even those living in bad neighborhoods, need not be that desperate. But if they do face that kind of gun violence where they live, perhaps if owners were register their guns, as part of a national data base, it would be easier to trace weapons back to their previous owners, and thus would at least establish some common ground that allows authorities to determine who originally owned the gun. That could also provide a basis for checking on possible mental illnesses or prior criminal records and in short—we need to improve background checks so that less people will fall through the cracks in the system.

    Senators Manchin and Toomey crafted a fair and doable bill, but under pressures from he NRA many who cast votes became more inclined to do what they knew might help them secure a second term. And democrats too sold out to the industry.

    So that’s it! Don’t want to talk about banning rocks, or anyone’s need to singlehandedly take on an entire criminal army, or preparing for the boot jacked thugs who want ot rip our guns from our cold dead fingers. The simple fact is that weapons like the AR15 are the preferred way for psychotic gunmen to pick off dozens of people in a crowd while not having to reload every few seconds. Regulations may not save enormous number of lives, but it can save many more innocent people from being killed and injured over time. If we want And because we look at only one side of the statistics we have no way of knowing if some of our gun laws have already done for a great many people. We can do something if we want to! No sense in giving up all hope that we can improve the Especially the background checking system!

    • I’ll get into this a little more in the future. But the short answer is, no there is no “God-given” right. And the constitution does not explicitly grant or deny the right — though it does open doors to guarantee it by other means.

      • Yes, a “god” given right often turns into rights guaranteed only to those who worship a certain kind of God, one which then allows a qualified believer to validate his or her own biases. Or, it might provide a rationalization for rejecting the rights out atheists who don’t “get” Jesus or Mohamed, etc. All of these specific biases may then be used wrongly to determine who should be able to own a gun, and who should not—as well as the legality of many other issues.

        Since the 1st amendment acts to separate Church from State, the provisions in the rest of the Constitution must be devised according to a basic understandings of legal rights, not from versions of religious beliefs that can only facilitate bias. Thus, the provisions in the 2nd can only be decided by a reliance on legal jurisprudence–not religious or spiritual beliefs! Forgive me though, for concluding with this last ironic statement–“Thank God it does!”

  2. This is how my comment should have read near the end of my post:

    “And because we look at only one side of the casualty ledger, we have no way of knowing if some of our gun laws have already done great good for a great many people. We can do something if we want to! So, no sense in giving up all hope that we can truly improve the system—especially the background checking system!”

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