By now, we should all realize that the Second Amendment is used by the N.R.A. and its sycophants to argue that we should all have the right to possess grotesquely lethal arsenals.
We should also recognize the the Second links gun ownership to membership in the militia. Here as a reminder is the text as usually printed, from the National Archives:
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.
First, let's dispense with one of the sillier arguments one sometimes hears from gun advocates, that the term "militia" somehow includes odd collections of alienated "survivalists" crashing around in the woods. No, thanks to the use of the "well regulated" phrase, we may easily dismiss that fatuous argument: in the modern day, a "well regulated Militia" means the National Guard and the various Reserve units of the regular military.
Without any further ado, one might -- I would argue, should -- read the Second as linking the right to "keep and bear Arms" to membership in such a "well regulated Militia." Apparently, however, some argue that because of the positioning of the three commas in the Second, the phrase about the Militia is essentially window dressing.
But their grammatical gymnastics fall apart when one examines the version of what we now call the Second as actually submitted to the States for ratification and sees that it does not include the first or third comma! Here is is, as printed in volume I of the Journal of the Senate of the United States of America:
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.
One finds the same punctuation in the Annals of Congress for the first Congress, in which is copied the ratification of the Bill of Rights by the several States, either directly or by reference.
With this punctuation, it becomes abundantly clear that the right to "keep and bear Arms" qualifies and is inextricably linked to the necessity of having a "well regulated Militia." Simply put, Congress intended and the States ratified an amendment making that linkage quite clear. Put another way, there is no Constitutional right to private ownership of guns for private purposes.
I wish this analysis was entirely my own, but modesty forfends; I direct you to a very interesting and insightful column on the punctuation of the Second Amendment published in today's New York Times by Adam Freedman, a regular columnist with the New York Law Journal.
Not only should guns be strictly controlled for protection of the public safety, but the Constitutional basis exists for doing so. Let's get rid of the guns. We should, and we can.
Note: this was originally posted in a slightly different form on ketches, yaks & hawks 16 December 2007
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And let me point readers to a blog responding to Adam Freedman’s piece in the Times, for Herr Freedman begs a question that he neglects to answer, which is answered by this blog and by comments posted to it. http://hillbillywhitetrash.blogspot.com/2007/12/grasping-at-straws.html
Note: originally submitted by Flick, 17 December 2007
I “allowed” (as blog terminology puts it) the comment above by Flick in the spirit of public debate on contentious issues, although I disagree quite strongly with the gist of Flick’s response.
It’s worth noting that Flick is apparently affiliated with a group known as “AWRM: A Well Regulated Militia” which describes itself as “The only interactive online resource center on the web that is of, for, and by the Unorganized Militia.” Name notwithstanding, hardly the framer’s image of a “well regulated Militia” at all, as noted below.
The blog Flick to which points purports to counter Freedman’s piece by stating that “it ain’t so,” that Freedman supposedly ignores a broad swath of literature (without identifying or describing that literature), and calling for “a ruling that the constitution actually means what it says” without acknowledging that what the Second Amendment (not the Constitution, but a minor point) actually says definitely links private gun ownership to participation in a well-regulated militia.
(By the way, it is definitely worth noting that Article I, section 8 of the Constitution places the organizing, arming, disciplining and calling out of the militia under the explicit control of Congress, while Article II, section 2 makes the President its commander when it is called out).
Put another way, as I argued above, “strict construction” of the Second Amendment does indeed support the view that the “right to keep and bear arms” is a collective right related to membership in state regulated militias, and not independent of it. The wishful thinking of those who want to view gun ownership as an “inalienable right” is just that: wishful thinking, unsupported by the Constitution.
In short, the counter-argument is no argument at all, but merely a recitation of dogma.
Note: originally submitted by Sanderling 17 December 2007
I would think that the wording “the right of the people to keep and bear Arms, shall not be infringed” really makes the point of the 2nd Amendment.
Note: originally submitted by Totalrecoil, 17 December 2007
Most opponents of gun control I’ve met describe themselves as conservatives. One of the greatest shibboleths of conservatives is “strict construction” of the Constitution. But for reasons which escape me (well, not really, since I have a good idea of what they’re *really* saying, but for reasons which do escape their own logic), they love to take major liberties when construing the Second Amendment.
Totalrecoil may not like the fact, but the Second *does* include that pesky little phrase about “well regulated Militias,” and since the framers spent a fair bit of verbiage in Articles I and II on the subject of Militias, it’s safe to say that they weren’t just throwing words around. No matter what gun fanciers might wish, the Second *does* link possession to Militia service.
In other words, the point of the Second Amendment is that “the right of the people to keep and bear Arms” is inextricably linked to their participating in a”well regulated Militia.” Period.
Which means, among other things, that there’s no way the framers meant the Second to be an impediment to staunching the flow of deadly weapons that terrorize this nation night and day.
Note: originally submitted by Sanderling 17 December 2007
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