Political analysis
The Supreme Court Takes On the Second Amendment
- By NotYourDaddy
- February 02, 2008
The last time the Supreme Court entertained a 2nd amendment case was almost 70 years ago. At that time they focused on minutiae around the concept of a militia, and concluded that the 2nd amendment only applies to types of firearms that would be pertinent to the preservation of a well-regulated militia. They did not address whether the right itself applies to all individuals, or only those belonging to a militia, perhaps assuming that was clear enough in context. Nevertheless, that ruling has bolstered the anti-gun lobby by focusing on the militia aspect of the 2nd amendment, rather than acknowledging the imperative that “the right of the people to keep and bear arms shall not be infringed.”
Perhaps, this time, the Supreme Court will get it right. Or perhaps not. It’s always a crap shoot when the Supreme Court takes up interpretation of a Constitutional amendment. Once they rule, either all of us win or all of us lose. However, if they’re going to undertake it, better to have them do it now. The next administration may pack the court with liberals who would rule that the amendment doesn’t apply to individuals at all, and only those belonging to a state militia (e.g., National Guard) have the right to keep or bear arms.
Those who argue that the 2nd amendment does not apply to individuals base their argument on the ambiguous wording of the dangling participle at the beginning of the amendment, which refers to “A well-regulated militia being necessary to the security of a free state.” It is not clear from the wording in the amendment whether that participle represents a condition upon which the right to keep and bear arms is contingent, or an example of a reason why the right was considered important. Nothing in the text of the amendment specifies that the existence of a militia is a required condition for the people to maintain their right to keep and bear arms. Neither does it say that is the only reason why this right should be protected. It simply mentions the importance of a militia, and then leaves it dangling. The grammatical taboo against dangling participles lies in their inherent ambiguity. Now that the framers of the amendment are long gone, there’s no way to clarify with absolute certainty what they intended, — at least not by simply by reading the text of the amendment itself.
Therefore, to understand their intended meaning, one must look further than that specific amendment, and take into account the context in which it was written, specifically the fact that it was included in the Bill of Rights. The purpose of the Bill of Rights is to secure protection for individual rights from infringement by the government. If all of the other amendments in the Bill of Rights are intended to secure the rights of individuals, why would the framers have slipped one in that had nothing to do with securing the rights of the individual, but rather applied to some abstract collective body?
The same people who want to wield a dangling participle to abridge our individual rights also claim that the term “the people,” as used in the 2nd amendment, does not refer to individuals, but rather to the collective population, or representatives thereof (e.g., the militia). The 4th amendment also refers to “the right of the people” to be secure against unreasonable search and seizure. Would anybody seriously argue that the 4th amendment does not protect the right of individuals to be secure against unreasonable search and seizure, but rather the right of some abstract body that represents the collective population? Perhaps what the founding fathers really meant was that only the police should be secure against unreasonable search and seizure…
Given the context of the 2nd amendment, and its prominent inclusion in the Bill of Rights, it could not be more clear that it refers to the rights of individuals. It would have had to have been included by accident if it truly had the singular characteristic that it, alone among the amendments that constitute the Bill of Rights, was not intended to protect the rights of individuals from being infringed by government.
-
Rate it!
Let us know what you thought of this article. Your feedback drives the quality of our content. Plus, it’s easy!
Rate this article -
Socialize it!
We greatly appreciate you adding us to your favorite social network.
Spread the word
The Second Amendment was written in 1789 to tell the new federal government what it COULDN’T do, not to tell individuals what they COULD do. When read as the complete single sentence that it is, it told the federal government that it could not infringe the right of the people to keep and bear arms as well regulated militias in the common defense of their respective states.
The composition of the militias of 1789 was determined by state laws that required most able-bodied male citizen adults to be enrolled in a militia company for military discipline and to muster for training at specified times.
Militiamen were generally required by state law to supply their own militia weapons and accoutrement's. It is quite unlikely that Madison would have drafted the Second Amendment to keep the federal government from infringing the “right” of individual militiamen to obey their own state militia laws.
Rather, the amendment was intended to prevent the state militia system itself from being abolished through federal action. A burning issue of the time was the question of whether or not the people of the respective states would be able, under the new Constitution, to continue defending their states with militias made up of themselves. Very little attention was given to any idea that the federal government must be restrained from denying individuals the use of arms in defense of self and home or for hunting.
339 days ago by Leif Rakur