At a Labor Day BBQ with friends yesterday a conversation went down the political path. First, I want to say it was awesome to be able to have a discussion of a political nature, especially about ‘hot’ topics, and have everyone have the opportunity to contribute and in the end, although not everyone was in agreement, we all left as the good friends we were when we arrived, if not better!
The conversation was about one friend finding a certain logic in constitutionalism versus all of rhetoric that we seem to be subjected to by all sides of an issue. Another friend suggested a problem with constitutionalism is there are many ways to interpret the constitution.
Once again, the question was posed, does the second amendment say it is a citizen’s right to own a gun?
The interpretation argument is that the second amendment implies the right to bear arms is tied to being part of the militia and, therefore, if there is no militia there is no right to bear arms.
I’ve heard this line of thinking a number of times before. So, rather than be uncertain of it I decided it was time to look at this question in more detail.
First, let’s look at what the second amendment actually says. For this purpose, as a source, I’m going to use the transcription of the Bill of Rights found at www.Archives.gov. You can find it here: https://www.archives.gov/founding-docs/bill-of-rights-transcript#toc-amendment-ii.
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.
“A well regulated Milita, “
What is a Militia? Google, Dictionary.com, CollinsDictionary.com, and Merriam-Webster.com all define a militia as a military group comprised of non-military people that are part of the civil population. This group is typically temporary in nature and formed in the event of an emergency where regular military is insufficient.
“being necessary to the security of a free State,”
This language provides the reason for maintaining the ability to raise or form a militia. Keeping a state free sometimes means fighting for that freedom. Military force is often needed to defend that state and it’s freedom from aggressors, whether it be a regular army or a force formed on a temporary basis in an emergency.
the right of the people to keep and bear Arms,
This part is very clear. It simply refers to the ‘right’ of people to bear Arms. This part on its own does not indicate conditions for such a right. Nor does it indicate a Yes or No it is or is not a right. What it DOES do is define the topic of the amendment: the RIGHT of the PEOPLE to keep and bear Arms. Other parts of the amendment tell us what we want to know about that right.
shall not be infringed.
Infringe: act so as to limit or undermine (something); encroach on, restrict…
Shall not be infringed says it will not be limited, undermined, restricted, etc. Or in other words, it is allowed and unlimited.
Now, working through this from the beginning we have a basic statement that as a country or state we must be able to form a militia. However, a militia is comprised of private, non-military people. If the PEOPLE do not keep Arms or are not allowed to bear Arms, then there is no longer an ability to have a militia.
This means that we must preserve all components that make a militia possible. That means making it possible for the PEOPLE to keep and bear arms even when there is no current militia.
Another way to say this might be, if the ability to form a militia is guaranteed then so is the right of the People to keep and bear Arms. This is because the armed People make up the militia.
Therefore, the second amendment definitely provides for the right to keep and bear arms.
You may not agree with my evaluation. In support I’d like to reference the Supreme Court; District of Columbia v. Heller, 2008 and McDonald v. Chicago, 2010. Both hold that the right to keep and bear arms is an individual right.
So, for now, however you personally choose to interpret the second amendment, the reality is that the Supreme Court says it is an individuals right to keep and bear Arms.
Of course, it’s not quite that simple. What kind of Arms? For what purpose? Other restrictions? How many? Should this right be suspended for certain people? If so, how do we make that determination? And more…
The Bottom Line
All are good questions. But they start with, does the Second Amendment say the citizens of the United States have the right to keep and bear Arms. The answer to THAT question is, Yes… at least for now.