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.)

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.




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.