(2)
WHAT THE
CONSTITUTION SAYS
(2a)
AMENDMENT II (in full):
"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."
Some prefer to interpret the Second Amendment as a flat and
unconditional prohibition of government's monitoring or restricting the
distribution, possession, or use of weapons in any way. No qualifiers,
ifs, ands, or buts. But is that what it really says?
If, in drafting the Bill of Rights, James Madison had
intended the Second Amendment to be a flat guarantee of the unrestricted
right of every citizen, to obtain whatever weapons he wished, and to use
them for whatever purpose he wished, he obviously could have made this
already brief amendment even shorter and more concise. It would have
read simply, "The right of the people to keep and bear arms shall not be
abridged." No qualifiers, ifs, ands, or buts. But that is not
what Madison wrote. So let us examine what he did write, point by
point.
POINT 1: Note that Madison used the
word "infringed," not "abridged." I point this out because the
generally accepted meaning of the word "infringed" (from the Latin
frangere, which means "to break") has changed significantly since the
early Nineteenth Century when the Bill of Rights was drawn up. As we
use it nowadays, the word "infringe" has a connotation close to that of
"abridge" or "encroach upon." But in Madison's time its meaning was
closer to that of the word "abolish."
How do we know this? There are language experts whose
profession it is to analyze historical writings in the context of other
learned writings of the period, and to determine the original meaning and
intent of such documents in light of the conventional interpretations of the
terms used therein at the time they were written. In this way we know,
for example, that Queen Victoria's use of the terms "awful" and "terrible,"
in describing of the architecture of St. Paul's Cathedral in London, would
have been the equivalent of "awesome" and "terrific" in modern-day parlance.
Likewise, scholars of the American English of the early Nineteenth Century
understand that James Madison used the phrase "shall not be infringed" as a
means to ensure that the right to keep and bear arms would not be abolished,
not to imply that it should never be subject to reasonable
qualifications and restrictions. Clearly, if Madison had truly
intended that the right to keep and bear arms was to be absolute, and not
even to be "abridged," he would certainly have used that term rather than
"infringed."
POINT 2: By qualifying the Second
Amendment with the phrase, "A well-regulated militia being necessary to the
security of a free State," Madison made clear the purpose for the right to
keep and bear arms. It is not for hunting. It is not for target
practice. It is not for gun collecting. It is not even for
self-defense. And it is most certainly not for the purpose of
empowering any group of disgruntled citizens to march into City Hall, the
State Legislature, or the Congress, and overthrow the duly elected
government at gunpoint.
The Second Amendment guarantees the right to keep and bear
arms only for the express purpose of maintaining a regulated militia.
Note that this is not the sole purpose for which weapons may be legally kept
and used in the United States, but it is the only purpose which is
explicitly guaranteed by the Second Amendment.
POINT 3: "The people are the
militia!" I have heard some say, in defense of various paramilitary groups
which have spontaneously sprung up here and there. And in one sense it
is true: the militia is made up of common citizens. Very well, let us
take a look at what the Constitution says about the militia.
Again, the Second Amendment itself stipulates that a militia
is a "well-regulated" entity, and that its objective is "the security of a
free State." This in itself obviously rules out any groups whose aim
is to subvert or overthrow the duly elected government. Furthermore,
"well-regulated" implies that militia membership is not necessarily open to
everyone, but that those deemed unsuitable for service, such as children,
criminals, addicts, and lunatics, may reasonably be excluded.
The legitimate functions of the militia are described in the
main body of the Constitution...
(2b)
ARTICLE I, SECTION VIII (in part):
"[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;"
This makes it inescapably clear that the specific purpose
of the "well-regulated militia" is to uphold and
protect the duly elected government, not to oppose it at the
whim of militia commanders as some have suggested. (Even if
that were one of its intended functions, the very notion of a
renegade band of militiamen armed with assault rifles and
grenades facing down the entire United States Armed Forces is
a bit far-fetched to say the least. Our government has
an established mechanism for the citizens to alter or abolish
it, and overthrow by force isn't it.)
The Constitution mentions "the militia" in one
other place, specifically...
(2c)
ARTICLE II, SECTION II, PARAGRAPH 1
(in part):
"The President shall be Commander-in-Chief of
the Army and Navy of the United States, and of the militia of
the several States when called into the actual service of the
United States."
This further reinforces the idea that a legitimate militia
is not just any group of people who choose to call themselves
a "Militia." The Constitution clearly
considers a militia to be a force under the authority and
dedicated to the security of the elected government.
Ordinarily this is the state government, but the President of
the United States is empowered to take control of the militia
when necessary. That is it. There is not even the
vaguest hint in the Constitution that the militia might take
any other form or be subject to any other authority, public
or private.
Now, let me say that there is nothing wrong with people's
having and using firearms for the purpose of paramilitary
exercises, as long as they do not threaten or endanger anyone
else in the process. Most of these groups are actually
beneficial, in that their members learn resourcefulness,
responsibility, teamwork, survival skills, and safety.
It is only those few groups, whose leadership allows a
posture of readiness and discipline to deteriorate into
paranoia, which create a problem. But regardless of
whether their motives are noble or perverted, such free-lance
groups do not constitute a "well-regulated militia"
in the Constitutional sense.
POINT 4: About a century ago it
became apparent that the various states were failing to
maintain "well-regulated militias," primarily
because they had other more immediate and pressing demands on
their tax revenues. And so the National Guard was
formed to replace what remained of the state militias.
While it is funded and regulated by the national government,
the National Guard's various units are ordinarily under the
direct authority of their respective state governors, unless
called into national service by the President. And so
the stated and intended purpose of the former state militias
is nowadays fulfilled by the National Guard. Moreover,
the National Guard furnishes its troops with weaponry,
equipment, and training appropriate to its functions, so it
is no longer necessary, or even desirable, for militiamen to supply their own
arms.
POINT 5: Some die-hard individuals,
having been grudgingly disabused of the notion of the Second
Amendment as a blanket guarantee of unrestricted gun rights,
have seized instead upon the Tenth Amendment.