Second Amendment Follies, Part 4: “to keep and bear arms”


bear arms

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.


The Myth Of Constitutional “Gun Rights”; A Second Look At The Second Amendment

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.”

That, of course, is the Second Amendment to the U.S. Constitution. And according to the gun culture, it’s the constitutional provision that confers on them the right (if not the duty) to stockpile all manner of artillery in their basements to protect themselves against curious ATF agents or deer with Uzis. It’s also the “amendment that makes all the others possible.” Seriously.

But there are many hitches to reading this little passage as a license for packing heat. And some of those hitches are to be found right there in the text of the amendment itself. While untangling the thread of the framers’ intent might require expertise in history and/or law, deciphering what they actually said requires only a fundamental knowledge of the mother tongue.

Let’s begin with the most trivial objection and work our way up the ladder.

Where’s the Hardware?

First of all, where do you see the word gun in this statement, or anywhere else in the Constitution? Or where do you see the more euphemistic “firearms”? All I see is “arms”, which could refer to stone knives, boomerangs, or water balloons. Okay, so that’s a stretch. It’s reasonable to assume that the framers intended “arms” to apply to the weaponry they were accustomed to. So maybe you really are authorized to keep a muzzle-loaded musket in your closet. But it doesn’t explicitly say so. And while that in itself might sound frivolous, it might have more weight in context with what follows.

To Have and to Hold

But where do you see anything about ownership of such pieces? All I see is the phrase “keep and bear”. Soldiers routinely “keep and bear” all manner of nifty toys without privately owning them. In Revolutionary times, of course, things were very different; it was expected that citizens would supply their own battle implements to aid the common defense, so “keep and bear” bore the implication of possession. But possession itself is not specifically and literally addressed.

The Long Four-Letter Word

Even if we acknowledge a right to own guns, that’s a matter independent from governmental authority to regulate gun ownership; by no means does one exclude the other. But to hear the gun lobby tell it, any attempt at government regulation (“gun control” in the official media spin), no matter how reasonable, is a commie maneuver to “take away” their precious phallic substitutes – even though the Constitution unequivocally states that arms not only can be regulated but well regulated. If someone proposed a law against firing a bazooka in a crowded mall, these folks would probably howl to the heavens.

This reaction, perhaps, says a great deal about the real motives of the NRA and its comrades – not to defend “freedom first”, but to defend profit first. They like to gauge (double meaning intended) freedom by the number of guns floating around, though for my part I feel a hell of a lot freer strolling through Tokyo than I do strolling through Little Rock. (I also feel freer in resisting the incendiary rhetoric trying to manipulate me into purchasing a dozen semiautomatic rifles when it only takes one to handle that jerk who cut me off in traffic fifty miles back.) Do they want to seize the Constitution and use it for their own lucrative ends? From these cold, dead hands, bub.

You often will hear them claim that restricting Second Amendment “rights” is as bad as restricting First Amendment rights – i.e., free speech. Actually, free speech is restricted; there are laws, for instance, against slander, libel, perjury and fraudulent advertising. But the analogy doesn’t hold up under fire.

Speech is devised for communication, for building relationships, for enshrining ideas, for artistic expression, for many things that exalt the human condition. Guns are devised to kill people. It’s not comparing apples to oranges. It’s comparing apples to pogo sticks.

For a more appropriate analogy, suppose the amendment instead said: “Well regulated transportation being necessary for efficient living in the modern world, the right of the people to operate vehicles shall not be infringed.” Would anyone maintain that it empowered anyone and everyone to drive a car unrestricted without licensing or examination, regardless of health or prior record?

Militias Intent

And why did the framers consider it so important for citizens to be up in arms? Because they might be called upon to participate in the militia, a civilian defense body that has been supplanted by today’s National Guard. Militias are no longer functional – and no, they do not include those characters in Michigan or Montana drilling in fatigues in preparation for Armageddon. They’re not regulated at all. (One might argue that they’re not exactly functional, either.) In other words, the whole concept of a militia is obsolete, and it has dragged the Second Amendment down along with it. Lest you think it’s implausible for an amendment included in the Bill Of Rights to slip into obsolescence without being repealed by another amendment, I suggest you keep your copy of the Constitution open to the same page and continue reading through the Third Amendment. When was the last time you heard of that one applying to anything in real life?

Subject to Review

But let’s cut to the chase, shall we? I lied. The passage quoted above is actually not the Second Amendment; at least it’s not the original version passed by Congress in 1791. It is, rather, a subtly altered version that states later ratified, much to the delight of the gun lobby, which almost always quotes the tweaked edition. Here’s the way the Amendment read as passed by Congress:

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.”

Notice the difference? The NRA is really hoping you won’t. But if you look closely, you’ll spot something that was missing from the other version. Actually, two somethings: little spermatazoid markings after “Militia” and “Arms”. They’re called commas, and they can drastically alter the meaning of a sentence. (Which sounds more appealing: ” a million dollars, and beads” or “a million, dollars and beads “?)

Under the standard rules of punctuation for the English language, these commas make “A well regulated Militia” the subject of the sentence – i.e., the thing that “shall not be infringed”. The other two phrases bracketed by commas just amplify that subject.

But guess what? Contrary to what the NRA seems to believe, removing the commas in this instance doesn’t materially alter the gist of the thought. It does make “the right of the people to keep and bear Arms” the subject, but it’s a heavily qualified subject; it’s still hard to ignore (though many try) the stated purpose of that right – “a well regulated Militia” – especially since it begins the sentence. They changed the syntax, but they didn’t substantially change the sense. “A well regulated Militia” is the heart of this Amendment whether it’s the thing that shall not be infringed, or whether it clarifies and defines the thing that shall not be infringed.

It would have been easy to add some succinct wording about using weapons to hunt for food or trespassers if that had been the purpose. For that matter, why spell out any specific usage at all, such as “a well regulated Militia”? Merely saying “the right of the people to keep and bear arms” would have covered all the bases, had that been the focus.

Moreover, earlier drafts of the Amendment contained the provision that “no person religiously scrupulous shall be compelled to bear arms”. That’s a very curious addendum indeed if Thomas Jefferson’s vision was aligned with Charlton Heston’s.

And Now the Kicker

In short, there is nothing in the text of the Second Amendment to indicate that it has anything to do with stalking either Bambi or rival gang members. In contemporary application, it simply means that states have the right to maintain armed National Guard units.

But having said all of this, we must add that none of it really matters anymore. Not since a 2008 Supreme Court ruling determined by five “conservative” justices. (You know the type: they scorn “judicial activism” or “social engineering”. Unless it advances their ideology and/ or lines their pockets.) They simply decreed that henceforth, the Second Amendment would say what they wanted it to, whether it really does or not.

Lovely how that works, isn’t it?

AFTERWORD (Jan.21, 2012): The most perceptive criticism I’ve heard of the above post has been to the effect that formal writing of the Revolutionary era was not as standardized in its punctuation as it is today, and it was not unheard of for a comma to stray between a subject and its predicate. True enough. But the fact that this passage was revised before ratification indicates that the framers were cognizant of the different nuances. It also suggests that it was the states that wanted to emphasize the “right to keep and bear arms” rather than Congress.

At any rate, as I stated above, it doesn’t really matter, because in both versions the intent is the same – the two phrases are interdependent. Just try switching them: “The right of the people to keep and bear arms being necessary to the security of a free state, a well-regulated militia shall not be infringed.” Would anyone argue that this establishes the right of a militia to do anything it pleases- to pillage, rape, and demolish at will? Don’t think so. A militia in such a passage would be defined in terms of keeping and bearing arms for the purpose of the security of a free state. Likewise, in the version of the Second Amendment we have, the right to keep and bear arms is defined in conjunction with a well-regulated militia for the purpose of the security of a free state. Nothing more.