So we have examined the first half of the Second Amendment, the clause that explains its real purpose. Now let us cut to the chase and examine the part of the text that the gun CULTure considers most vital — and indeed often lifts out of context and places on a hallowed pedestal: the second half of the amendment, which reads:
…the right of the people to keep and bear arms, shall not be infringed.
This, remember, was intended as a condition of a “well-regulated” militia. But let’s humor the gun fanatics for a moment and pretend that the first half of the amendment never existed. Just how does the second half stand up on its own? Answer: upon the most wobbly of legs.
A group effort
First of all, notice that people is plural. And the people in a passage like this is presumed to be a collective noun. Which is to say that it isn’t necessarily intended to refer to every individual. It would be a true statement to say that the American people eat beets, but it’s not true to say that every American person does. And you can have a right for Americans as a nation to be armed without having a right for every American to be armed.
Gunsters, of course, will insist that such a right is implied, or even explicitly stated. Our old friends back at GunFacts try to establish this by citing other commentators, court rulings and even public opinion. It’s true, as its author notes, that courts have affirmed several times that the Second Amendment should be interpreted on an individual basis. But they also have ruled otherwise on several occasions. And even when the rulings went in favor of the gun lobby, they were not unanimous; dissenting justices sometimes expressed grave concerns over such a tortured reading.
And here’s the thing: why should it require the interference of a court at all to establish such a meaning? To repeat an intractable principle we’ve stated before: if an interpretation is not unequivocal, then it is not absolute. Which is to say, if something isn’t clear then it isn’t clear. What could be more basic than that? Courts often step in to determine the exact circumstances to which a constitutional provision should be applied; but in this case, the court made a declaration about what a constitutional provision actually says.
Having and holidng
The next point is that the Second Amendment does not even address gun ownership at all. It just stipulates the right to “keep and bear” arms. Soldiers, whether regular army or militia, routinely keep and bear arms without personally possessing them. And in the Eighteenth Century, the expression “bear arms” was normally, though not always, used in a military context.
Of course, things were very different back then. Militiamen were not only presumed, but required, to supply their own firearms. They were also presumed to be white males. But it doesn’t automatically follow that the Framers of the Constitution presumed such an arrangement would always obtain, throughout all future generations. Moreover, the “right” enumerated in the Second Amendment, as practiced in Revolutionary times, was not one that today’s gun culture would find particularly appealing. As Fordham history chair Saul Cornell comments:
In 1776, most of the original state constitutions did not even include an arms-bearing provision. The few states that did usually also included a clause protecting the right not to bear arms. Why? Because, in contrast to other cherished rights such as freedom of speech or religion, the state could not compel you to speak or pray. It could force you to bear arms…
Militias were tightly controlled organizations legally defined and regulated by the individual colonies before the Revolution and, after independence, by the individual states. Militia laws ran on for pages and were some of the lengthiest pieces of legislation in the statute books. States kept track of who had guns, had the right to inspect them in private homes and could fine citizens for failing to report to a muster.
These laws also defined what type of guns you had to buy — a form of taxation levied on individual households.
Members of the “militia” (National Guard) are no longer required to supply their own weapons. The conditions that led to the adoption of the Second Amendment have radically changed. Which means that the amendment no longer serves the purpose it was designed for.
Another thing that has changed, very drastically, is of course the weaponry itself. And if the Framers could have foreseen what kinds of horrific implements of destruction would be available in the future, chances are they would have worded the Second Amendment such that today’s gun fanatics wouldn’t assume they are entitled to wield an AR-15 or a Nimbus 2000 or whatever.
A flawed comparison
If you’ve ever made the latter suggestion within firing range of gun fanatics, however, then most likely you’ve heard at least one of them retort that by the same token, the Framers would have limited the First Amendment to the use of newspapers only, since that’s the only form of media they were familiar with. It’s a flawed comparison not only because there is a big difference between a medium of mass communication and a medium of mass slaughter, but also because it fails to grasp the actual parallels between the two amendments.
While both amendments mention certain things (“the press” and “arms”), in neither case is this thing the real topic of discussion. Rather, the topic of discussion is the activity with which that thing is associated (expression and defense respectively). And the First Amendment, while it guarantees the freedom to express oneself through the press, says nothing about anyone’s right to own a press — or a TV, or a computer. Likewise with the Second Amendment and “arms” of whatever flavor.
There have been cases, for example, in which a judge ordered an individual guilty of possessing child pornography, as part of the probationary process, not to have any Internet access. Which is in effect a prohibition against that person owning or accessing a computer. This does not seem to be a violation of First Amendment rights. Why should it be deemed a violation of Second Amendment rights to put restrictions on private usage of something far more lethal? (And let’s not forget that the First Amendment does not imply any right to commit slander or libel, or to disclose classified information.)
On the fringes
Which brings us to that final word in the amendment. What exactly does “infringing” entail, anyway? It certainly does not mean, as the NRA would have you believe, that there should be no kind of restriction on guns whatsoever. In fact, if you read the Second Amendment for what it is, you realize that even if U.S. citizens were strictly prohibited from all private ownership of guns, it would not be an infringement on the “right of the people to keep and bear arms” in the service of a “well-regulated militia”.
That’s never going to happen, of course. But even if we insist on contorting the Second Amendment into a proclamation that all individuals have a right to be armed, that doesn’t rule out also deciding that heavy restrictions on guns are perfectly constitutional. In fact, the Supreme Court did just that in its celebrated 2008 fiat. Yes, the “conservative” Supreme Court. Yes, the Supreme Court that is snugly ensconced in the hip holster of the gun lobby. Even as the “conservative” majority incorrectly asserted in Heller v District of Columbia that the sacred text applies to the populace in general, it also freely acknowledged that this does not mean everyone has a right to bear any type of weapon under any circumstances.
In sum, the Second Amendment was meant to guarantee a well-regulated (and organized) militia, in service of the federal government rather than in opposition to it, and was not meant as a guarantee that any citizen could be armed for any purpose. But confronted with these facts, the gun culture goes for a hail Mary, trying to buttress its version of the amendment with an argument outside the amendment. And that’s something we’ll consider in the final installment of this series.