This Washington Post OpEd by Dennis Barron (who is an English and linguistics professor out of the University of Illinois) really intrigued me. He takes the late Supreme Court Justice Anton Scalia to task for his reading of the Second Amendment. It’s this amendment that grants us gun rights. To refresh your memory, here is the Second Amendment in full:
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.
Specifically he takes Scalia to task for his interpretation of “bear Arms”. Scalia said that it undoubtedly meant that it protected the right to use guns for self-defense. According to Barron, at the time it was only used in a military context. It meant the use of arms for “war, soldiering or organized, armed action” according to Barron.
As I pointed out years back, the court’s 2008 decision District of Columbia v. Heller in which Scalia voted with the majority essentially turned the Second Amendment into:
The right of the people to keep and bear Arms, shall not be infringed.
Perhaps some future true-constructionist court will rediscover the true meaning of the amendment. (Scalia thought of himself as a true-constructionist, i.e. someone who interprets the law as it was originally intended to be interpreted.) If Barron is right, then it’s quite clear the right to bear arms is derived only from the state’s need to have a well-regulated militia. Your right to bear arms is not because you like to shoot squirrels, target practice or even to protect your home. And it’s not like this is a mystery: it’s written in plain English.
If militias were actually necessary in 2018, given the number of firearms in circulation you would think there would be militias all over the place. If you were thinking our army is a militia, you would be quite wrong. Dictionary.com gives these definitions in order of most frequent use:
- A body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
- A body of citizen soldiers as distinguished from professional soldiers.
- All able-bodied males considered by law eligible for military service.
- A body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.
Today, the Reserve and National Guard would qualify under the first definition, but not our standing army. They are very well regulated too. So clearly if you are a member of either of these, your right could not be infringed, at least as long as you remain a member. In practice though the state probably won’t tell you to keep your guns at home, particularly not those military grade guns. They’ll have you drive to your local armory to pick them up and truck you somewhere in uniform with a bunch of other soldiers.
The second definition is rather murky. A soldier presumably has had military training so perhaps this also covers the Reserve and the Guard. It’s unlikely that shooting at rabbits qualifies you as a soldier. If you haven’t been trained to maim and kill people with firearms under a chain of command using actual military-grade guns, you can’t credibly call yourself a soldier.
The third definition is pretty sexist in 2018 so presumably can be ignored. It should include women but presumably does not include the feeble. So grandma would probably not qualify to keep a gun in her nightstand.
The fourth definition perhaps cover unofficial militias. There are these militias out there today, but they have no legal sanction and are ephemeral organizations at best. Since they have no official sanction, they can’t be considered “well regulated” so presumably they don’t qualify at all. Around the time of our founding though, these militias were all we had. Given that, it’s probably not surprising the founding fathers said, “Hey, we need to ensure we keep our militias or the Indians might overrun us. So we need to make sure that citizens can bear arms.” There was nothing that can credibly be called a standing American army during the Revolutionary War. To the extent it was the “Continental Army” they were the ragtag militias that showed up to fight the war that George Washington did his best to train (with little in the way of funding from the Continental Congress, by the way). Our military of militias proved pretty ineffective. If France hadn’t helped us, particularly at Yorktown, it’s unlikely we would have won the war outright. Anyhow, it is murky at best whether a group of ad-hoc people calling themselves a militia are actually a militia, and would not be in a 1790s sense. To stretch the definition of militia though, perhaps these people have the right to bear arms because they meet the definition of militia.
Even if you say a citizen has the right to bear arms though, the wording of the amendment with a proper interpretation of its predicate “A well regulated Militia, being necessary to the security of a free State” suggests to me that if Congress declared that a well regulated militia was no longer necessary to the security of a free state, then your right to bear arms could be infringed and no constitutional amendment would be needed. If at some future time Congress decided, “Hey, we need a militia again” then that right could return.
In any event that clause was not added as an afterthought. Rather, it’s a predicate. Its wording though is quite odd. In more modern English, it should be read as: “Only because a militia is needed for our country to survive, citizens have the right to own guns.”
It’s laughable to assert this right is unlimited because the Supreme Court has stated many times it is not an unlimited right. Inmates can’t own firearms. In many states, being mentally ill can disqualify you. You can’t own bazookas. States are free to regulate firearms providing they don’t take away the right altogether.
So it’s fine if one state decides that “arms” mean nothing bigger than a handgun and another an AR-15. It’s fine if one state says that minors cannot own guns and another state allows it. The Second Amendment is no more absolute than any other right in the Bill of Rights. And if properly framed in the context of the 1790s, it would be hard to argue that anyone has a right to bear arms for any reason other that to maintain a free state’s right to exist using a militia.
Maybe someday we’ll get there, but it’s now obvious that our interpretation of the Second Amendment is just dishonest.