By Charles M. Strauss
Let’s take it word by word.
“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.”
What is a “Militia”? What is a “well regulated” Militia (as opposed to a poorly regulated one)? What about a well-regulated Militia makes it “necessary”? What is the “security” of a free State? What is a “State”? What is a “free” State (as opposed to an unfree State)? Who are “the People”? What does “keep” mean? What does “bear” mean? What are “Arms”? What does “infringed” mean?
Legal scholar and author Bryan Garner and Supreme Court Justice Antonin Scalia co-wrote a textbook, Reading Law: The Interpretation of Legal Texts (West, 2012), in which they set forth a long list of principles (“canons”) of construction, including these two:
- Fixed Meaning Canon: Words must be given the meaning they had when the text was adopted;
- Absurdity Doctrine: A provision may be either disregarded or judicially corrected as an error (when the correction is textually simple) if failing to do so would result in a disposition that no reasonable person could approve.
Let’s take an easy example of the Absurdity Doctrine. The word “bear” can mean either “carry” or “large mammal of the family Ursidae that defecates in the forest.” The word “arms” can mean “weapons” or “upper limbs (human) or forelimbs (non-human animal).” If the Second Amendment were interpreted to mean that the people have the right to the forelimbs of pickanick-basket-stealing mammals, then the Second Amendment would be absurd/meaningless. If the Second Amendment means the people have the right to carry weapons, then it makes sense. A constitutional provision must always be given an interpretation that makes it mean something, not nothing – whether or not the interpreter likes the resulting meaning.
What, then, is a Militia? When the text was adopted, the term was universally understood to mean “armed populace,” the antithesis of a standing army, the antidote to tyranny.
“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by (the Second Amendment) in their right to keep and bear their private arms.” (Tench Coxe, “Remarks on the First Part of the Amendments to the Federal Constitution,” Philadelphia Federal Gazette, June 18, 1789.)
“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.” (Eldrige Gerry, Rep. of Massachusetts, 1 Annals of Congress 750, August 17, 1789.)
Some current commentators, horrified by the very idea of an armed citizenry, propose that “militia” means the National Guard. That definition is absurd, for many reasons, including:
- The National Guard did not come into being until the 20th Century, so it can not have been the meaning “when the text was adopted.”
- While the National Guard may consist of “part-time soldiers” (as in a militia), their stated purpose is to do things like putting down rebellions, or warring against foreign enemies – but not resisting a tyrannical government. In Perpich v. DOD, the Supreme Court disabused him of that idea, explaining that the President, not the Governor is the Commander in Chief of National Guard troops. Thus, the National Guard cannot be the “Militia,” because the core purpose of the Militia is to protect the people against a tyrannical President “perverting his power to the injury of his fellow citizens.” It would be absurd to suppose that a tyrannical president would order National Guard troops to stop him. Defining the Militia as anything other than an “armed populace” would make the Second Amendment an absurdity, no less than defining “bear arms” to mean the forelimbs of furry forest excretors.
What about “regulated” and “well regulated”? If regulated meant “subject to rules and regulations issued by the government,” then again that would make the Second Amendment meaningless, to wit: “The People have the right to keep and bear arms, unless the government passes rules and regulations that say no they don’t.” In fact, at the time the Second Amendment was adopted, “well regulated” had a commonly understood meaning: “in good working order.”
From the Encyclopedia Britannica:
1709: “…if a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”
1714: “The practice of all well-regulated courts of justice in the world…”
1812: “The equation of time…is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”
1848: “…remissness for which I am sure every well-regulated person will blame the Mayor.”
1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”
1894: “…the newspaper, a never wanting adjunct to every well-regulated American embryo city.”
Thus, the term “well regulated” meant that something (a clock, a person’s mind) was functioning well, and properly tuned and calibrated. For example, Regulator-style clocks were developed in the early 18th Century. They were so-called not because they were subject to more government rules, but because they were more accurate than other clocks.
In DC v. Heller (2008), Scalia wrote: “Finally, the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”
Because “regulated” means “trained/competent,” “well regulated” means well trained, i.e., the People know how to shoot, and they know how to maneuver and operate tactically in concert with their fellow People, to effectively resist all enemies, foreign and domestic.
In Heller, Scalia went on to explain what a State is, and why a well-trained armed citizenry is necessary to the security of a free State:
The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States… Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” … It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “free country” or free polity.
There are many reasons why the militia was thought to be “necessary to the security of a free state.” … First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary – an argument that Alexander Hamilton made in favor of federal control over the militia… Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. (Italics added.)
Who are “the people” who have the rights to keep arms and bear arms acknowledged (NB: not “granted”) by the Second Amendment? The Supreme Court answered that question in a very unpleasant case, US v. Verdugo-Urquidez. Verdugo-Urquidez (hereafter, VU) was a Bad Dude, worse even than Corn Pop. He was a cruel, sadistic, violent drug dealer from Mexico, allegedly responsible for the unspeakably horrific torture and murder of DEA agent Enrique Camarena Salazar. DEA agents went to Mexico and arrested (i.e., kidnapped) VU and brought him to the United States for trial. They searched his home in Mexico and brought back records of drug shipments which they tried to use as evidence in the trial. VU’s lawyers objected that the DEA did not have a warrant to search for and seize those records. The Supreme Court noted that the Fourth Amendment says that “the people” have the right to be free from warrantless searches, but said that VU, a resident of Mexico, was not one of “the people.”
… “the people” refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
… “the people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the people of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” (Italics added.)
In other words, all Americans (and resident aliens, presumably) have Second Amendment rights, not just those who are members of the armed services/National Guard.
The text of the Second Amendment actually contains a grammatical error (in addition to the unnecessary comma between “Arms” and “shall”). It’s not the “right” to keep and bear arms; it’s the “rights” (plural). Keeping and bearing are separate rights. To keep means to own or possess. To bear means to carry. Does the right to carry mean the right to carry openly? Concealed? Some states permit open carry but prohibit concealed carry. Other states permit concealed carry but prohibit open carry. Which is right, or are they both wrong? As the Second Amendment is silent on the question, the presumption must be that carry means to carry, whether concealed or unconcealed.
The rights prohibitionists insist that the right to carry again pertains only when the militia has been called out (by the government). That is wishful thinking. The purposes of having a well-trained armed populace include showing up to quell uprisings and oppose foreign invasion – the same as the Army. But unlike the Army, the militia has another purpose – its core purpose (according to every single contemporary commentator, including the author of the Second Amendment) – and that is to resist tyranny. There would not be much hope of resisting tyranny if the people’s guns were kept locked up until the government unlocked them and told the people to resist the government’s own tyranny. Nor could the militia/armed populace be well-trained if they were not able to practice with and maintain their own arms.
As a side note, the rights prohibitionists scornfully insist that an armed populace could not possibly resist the most powerful army in the world, which has F16s and nuclear missiles. A bunch of Vietnamese communists in pajamas, and a bunch of goatherders in Afghanistan, would laugh at that (and thanks for all the cool weapons, President Biden!) A ragtag bunch of farmers and tradesmen in 1775 were told that they had no hope of resisting the most powerful army in the world, but by golly, here we are. However, that is beside the point. At issue is not whether the Second Amendment is a good idea, but what it actually says and means. There are people who think freedom of the press and religion are bad ideas, but their opinions do not change what the First Amendment says.
In one of the most bizarre Supreme Court cases ever, US v. Miller, the Court addressed one issue, the definition of the word “arms.” What “arms” do the people have the right to own and carry? Miller was a career criminal, a bank-robbing gangster who had been convicted of possessing (keeping) a sawed-off shotgun (barrel shorter than 18 inches), which had been made illegal by the National Firearms Act of 1934. Miller’s lawyer argued that the NFA violated the Second Amendment – and won the argument. The US appealed to the Supreme Court. By that time, Miller had gone into hiding, fearing he would be killed in retribution for testifying against other members of his gang. Neither Miller nor his lawyer appeared at the Supreme Court hearing, and indeed, Miller was murdered before the Court announced its decision.
The Court considered whether a shotgun with a barrel shorter than 18 inches was an “arm” that the people had the right to keep and bear.
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
Because the Court could not decide whether a short shotgun would be useful on the battlefield, they remanded the case to the lower court to answer that question. By that time, though, Miller was dead, and the case became moot, so the question has never been answered, and the NFA has stood unchallenged since then. Of course, the reason for the absence of evidence is that neither Miller nor his lawyer was there! Had there been somebody there to give evidence, the Court would have learned that short-barrelled shotguns have been in use as ordinary military equipment since the time of the blunderbuss, as well as in trench-clearing in The Great War of recent memory. Nevertheless, the Court did establish the principle that the arms that people have the right to keep and bear are those that would be suitable for fighting – what today are called “assault weapons” designed to be used for fighting. It is not clear whether the Second Amendment protects the right to own deer hunting rifles or duck hunting shotguns or Olympic target pistols. The only guns we know for certain are protected are those that “only belong on the battlefield,” that is, “assault weapons,” to use the language of those afflicted with enuresis ignavus (involuntary urination induced by cowardice).
“Infringed” is an interesting word. It doesn’t just mean “violated” or “denied.” Its root word is “fringe.” Fringe is something around the edge, the periphery, like the fringe on a flag. “Shall not be infringed” means “Not only don’t revoke completely but don’t even nibble around the edges, got it?”
In short, what the Second Amendment says is “Because a well-trained armed populace is necessary to the security of a free country, the people have the absolutely inviolable rights to own and carry military-type weapons suitable for resisting tyranny.”
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