The Second Amendment

By John Phillips on June 05, 2018

The Second Amendment is one hell of a sentence. It reads, in its entirety:

“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.”

Both the Constitution and the Bill of Rights are full of this kind of writing. The rules for comma usage were less precise at the time. A comma meant, “pause here, please.” The capitalization is baroque, too. The nouns “Militia,” “State” and “Arms” are capitalized, but “people” is lowercase.

Nowadays, this wouldn’t make it past a copyeditor. The use of commas is just odd. More problematically, the connection between the clauses is unclear. What is the relationship between the well-regulated militia, the free state, and the right of the people to bear arms?

One reading is that the two clauses are unrelated. That there are two unrelated thoughts, as if it were written:

“A well regulated militia is necessary to the security of a free state.
The right of people to keep and bear arms shall not be infringed.”

This is how the amendment is currently understood. The first bit about the militia and the free state is taken as preamble, a kind of clearing of the throat. The real meat is in the second bit, about the right of the people to keep and bear arms. This is the position that Justice Scalia took, writing in the majority opinion:

“The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.”

The “prefatory clause” refers to the bit about the militia and the free state. The operative clause refers to “the right of people to keep and bear arms.”

If we modernize the grammar of the sentence, removing the unneeded commas and capitalization, we get:

“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.”

This construction is called an “ablative absolute” by grammarians. The clause before the comma can’t stand alone as a complete sentence. It modifies meaning of the main clause, which could stand alone. But how does it modify it?

According the majority opinion, the initial clause can be ignored. It “does not limit or expand the scope of […] the operative clause.”

In the dissenting opinion, Justice Stevens agues the initial clause does limit the scope of the right. In this view, the amendment protects the rights to keep and bear arms only for a limited set of military purposes. The dissenting opinion reads:

“The Second Amendment was adopted to protect the right of the people of each of the several States to main­tain a well-regulated militia. It was a response to con­cerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.”

In the this view, the people have the right to keep and bears arms, only as part of well-regulated militia in defense of a free state.

This seems like a more natural reading of the amendment. In this view, all of the words matter, not just those in the second half of the sentence. It’s a shame that the founding fathers didn’t have a better copy editor. They might have written:

The right of the people to keep and bear arms, as part of a well-regulated militia for the protection of a free state, shall not be infringed.

In this construction, the scope of the right is made more clear.

If the founders had meant to guarantee a right to bear arms without restriction they could simply have written:

“The right of the people to keep and bear arms shall not be infringed.”

And, sadly, this is where we live now.

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