Thursday, 20 March 2008
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.
Proponents and opponents of gun control argued over the meaning of the Second Amendment to the Constitution before the Supreme Court on Tuesday. Those who argue that government--local, state, or federal--may pass laws restricting aspects of gun ownership and use, contend that the Second Amendment was intended to prevent the federal government from disbanding individual state militias. Their opponents argue that the Second Amendment provides a universal right for all citizens to own firearms, regardless of whether they are part of a state militia. The language of the Second Amendment is somewhat murky and can be read either way. However, both a close analysis of the Second Amendment itself and a careful reading of key historical documents strongly suggest that it is the gun control advocates who are reading the amendment correctly.
With regard to the amendment itself, it may first be noted that the three commas present in the amendment do not conform to modern standards of usage, but they do reflect late seventeenth century punctuation practices (note also the capitalization of "State"). According to the standards of modern usage, the first and the third commas should be omitted, yielding an introductory participial clause followed by an independent clause. The introductory clause, "A well-regulated militia being necessary to the security of a free State" is equivalent in meaning to the causal dependent clause, "Because a well-regulated militia is necessary to the security of a free State." The second clause, "the right of the people to keep and bear arms," is an independent clause. Proponents of unrestricted gun ownership argue that the amendment should be read as though the introductory participial clause wasn't present, but that reading begs the question, "then why is the introductory clause there at all?" The answer is obvious. The introductory clause is present because it provides a rationale for the independent clause. In other words, the amendment states that the reason that the federal government is not allowed to ban individual gun ownership is that states have the right to form militias. If the state does not choose to form a militia, or if the state or local government chooses to pass laws restricting gun ownership, an individual may not claim a personal right to own arms based on this amendment.
A second argument based on the amendment revolves around the phrase "well-regulated militia." This phrase in and of itself implies that the state has the right to regulate its own militia, for example, by restricting membership or by regulating the weaponry that its soldiers may carry. Thus, even for members of a state militia, restrictions may apply, and that goes double for non-members of the militia.
Turning to relevant historical documents, it should first be noted that the main body of the U.S. Constitution explicitly allows the formation of a federal militia. Article 1, Section 8, says, in part,
The militia is a body of soldiers who are not members of the full-time army or navy (Congress is also given the power to establish these). The federal militia (i.e., the National Guard) is controlled by the federal government, but its officers are chosen by the individual states. The framers of the Constitution believed that it was important to maintain a ready body of citizen-soldiers, like the minutemen in the American Revolution, to deal with situations that might arise that were beyond the ability of the standing army or navy to address. The reasoning behind this detail of the Constitution is discussed by Alexander Hamilton in the Federalist Papers, no. 29.
The Congress shall have the power ...
15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:
16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.
Federalist 29 is a sustained argument with those in the various states who opposed a federal militia, because they were suspicious of its motives. The states had just fought a protracted war with England, and they were jealous of the liberties they had won. The last thing they wanted to do now was to hand over the authority of their local militias to the newly created federal government. Hamilton tried to calm his opponent on this issue by reminding them that the Constitution provides for the individual states to choose the officers. Furthermore, he says, it is inconceivable that militias from one state would agree to be involved in actions against other states or other frivolous matters. Two paragraphs of his argument deserve to be cited in full.
Hamilton obviously believed strongly that the Constitution itself provided adequate protections for the hard-fought freedoms of the citizens of the various states. It is equally clear, however, that many were not convinced. There were many Americans who would not vote to ratify the Constitution until a Bill of Rights was added that spelled out certain rights that individuals and states retained.
If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their designs.
In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of selfpreservation to the too feeble impulses of duty and sympathy.
It is in the context of specifying the rights of individuals and states that the Second Amendment should be read. Hamilton's assurances that the federal government would not run roughshod over the states did not convince everyone. Hamilton understood that opposition to the portion of the Constitution dealing with the militia was based on the fear that federal troops would overwhelm local militias. In his opinion, this fear is unfounded. As he states elsewhere in Federalist 29, "If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens." Hamilton knew that the states themselves had militias (i.e., the state guard) that were as skilled as the members of any federal army or militia, so he argued that there was no cause for alarm. Those who demanded the language of the Second Amendment did not agree, for the amendment explicitly prohibits the federal government from hamstringing the state militias by banning gun ownership.
The Second Amendment guarantees the rights of states to protect themselves from the federal government, not the right of individuals to build their own, private arsenals. This reading of the amendment is supported by an analysis of the language of the amendment and by a historical examination of the arguments surrounding the establishment of federal and state militias. The violence that persists in many of America's cities is the direct result of unregulated gun ownership, and cities and states must have the right to protect their citizens from gun violence. If read correctly, the Second Amendment is no threat to the peace and security of our cities, because it does not restrict state and local governments from taking measures to limit the negative effects of private gun ownership. However, if the Supreme Court decides to ignore the clear meaning of the amendment and hold that individuals may own guns without restriction, the time will have come to begin a campaign to repeal the Second Amendment.