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.

It is indicative of the state of our nation that it is the second amendment which generates such division in our country today because it contrasts strikingly with the view of our Founding Fathers, for whom the second amendment appears to have been so universally accepted that it was adopted with little or no debate.  Somehow our priorities have changed so dramatically over the years that most people have a hard time understanding where our Founding Fathers were coming from when they drafted the second amendment.  In this article, I continue my series on the Bill of Rights by seeking to shed some light on the meaning of the individual right guaranteed by the second amendment.

As before, to understand the Constitution one must begin with the plain meaning of its words.  The second amendment is structured somewhat awkwardly to many, but when read in the context of the whole Constitution it becomes clear.  It begins:  "A well regulated Militia, being necessary to the security of a free State."  Three points immediately stand out to me in those phrases.

First, it is clear that the drafters considered the "Militia" to be necessary to national security.  The word "necessary" was used to demonstrate that the Militia was to exist, not at the discretion of Congress, but rather as a Constitutionally mandated organization.  This understanding not only accords with the plain meaning of the words used but also is consistent with the role that the Constitution identified for the Militia.  Specifically, Article I, Section 8 of the Constitution states that it is the Militia's job "to execute the Laws of the Union, suppress Insurrections and repel Invasion."  Moreover, that same section prohibits Congress from appropriating money to raise and support armies for a term longer than two years.  This was commonly understood to prohibit Congress from raising and supporting a standing army in times of peace.  Therefore, in the absence of a standing army, it is clear that the Militia would be needed to protect the nation from lawlessness, insurrection and invasion.

Second, the drafters believed that the "militia," in order to properly fulfill its functions, ought to be well regulated.  In today's English, one would probably expect the words "well regulated" to mean that the framers intended for Congress to create a federal agency, having the requisite expertise, to  issue rules and regulations designed to assure our compliance with proper standards of Militia conduct as interpreted for us by lawyers.  Such a concept, however, would have been totally foreign to our Founding Fathers and contrary to the spirit of the Bill of Rights, which were clearly designed to protect individual rights from governmental encroachment.  Some argue that the words "well regulated," at the time that this amendment was drafted,  meant "self-regulated" or "self-control."  They may be right, but I think the best understanding is reached by reference to other provisions in the Constitution.  Specifically, Article I, Section 8 empowers Congress "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 clause quite obviously gives the Congress certain express, albeit limited, powers to regulate the State Militias for the purpose of making sure that the Militias were sufficiently organized, armed and disciplined to enable them to fulfill their Constitutionally mandated duties when so called upon and to make clear that the newly created federal government would have the necessary authority to coordinate their use when the State Militias were called into the national service.  Therefore the term "well regulated" Militia should be understood not as a grant of authority to the federal government, but rather as an acknowledgment of the limited authority already granted.

Third, it is interesting to note that the drafters believed the "Militia" necessary to the security of a free State.  The meaning of the words "free State" provides a crucial key to unlocking the door to understanding the underlying motivation or spirit that our founders intended to convey by the words that they chose to comprise our second amendment.  Perhaps the best way to understand the words "free State" is to compare them to their polar opposite "slave State."  Our Founding Fathers believed very strongly that  maintaining a standing army in time of peace was dangerous to liberty.  In fact, several of the complaints that they made of King George in the Declaration of Independence related to the maintenance of standing armies in times of peace and the rendering of the Military independent of and superior to the Civil power.  Thus, the experience of our Founding Fathers, together with the lessons of history, convinced them that standing armies were the enemy of freedom and therefore they took special precautions, as set forth above and through the adoption of the second amendment, to prevent history from repeating itself.

With a proper understanding of the subordinate clause to the second amendment, the dominant clause, which reads "the right of the people to keep and bear Arms, shall not be infringed," now makes sense.  First, its reference to "the people" makes it clear that it identifies and protects an individual's right to keep and bear Arms.  Second, its reference to "keep and bear" establishes the individual's right to own and carry (on his person) Arms.  Third, its reference to "Arms" demonstrates that an individual has a right to keep and bear military weapons or arms and not just hunting rifles.  Finally, its reference to "shall not be infringed" is a bright line prohibition on governmental encroachment upon this right.  Therefore the second amendment, taken as a whole and interpreted in accordance with other provisions in the Constitution, definitely protects an individual's right to keep and bear Arms for his individual security and defense while also acknowledging that citizens of a "free State" have a duty to join together for their common security and defense.

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