A Revolutionary Approach to 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.”

So reads the Second Amendment, which is a hot political topic.  What does that sentence mean?  Let’s begin with the meaning of the first thirteen words, referred to in Justice Scalia’s majority opinion in the famous Heller case as the “prefatory clause.” (As distinct from the rest of the sentence, which Scalia referred to as the “operative clause.”)   What is a Militia?  Why recite the necessity of a Militia? What’s up with the first comma?   What is the meaning of “the security of a free State?”  What is the meaning of “keep and bear arms?” (It is translated by Scalia as “have weapons.)   Does the prefatory wording establish the sole purpose for which arms may be kept and borne, or does it mean,  “Here is the primary purpose, but not the only purpose, for which arms may be kept and borne?”

The essence of the Scalia opinion is that the prefatory clause is a reason, perhaps even the principal reason, for establishing the right to keep and bear arms, but it is not the sole reason. Per Scalia, once the Framers had granted the right to keep and bear arms, it would have been senseless for them to go on to say, By the way, we did not mean that literally, we meant that arms may only be kept or borne for “the security of a free state.” Would the Framers have been comfortable allowing the States to ban the bearing of arms for the defense and protection of a citizen’s family from an armed attacker or for hunting for one’s dinner?

The essence of the dissents to the Scalia opinion is that the prefatory clause should be read as a limitation of the scope of the objective clause.  They read the sentence to mean that we are entitled to maintain an armed force to defend ourselves in case we are threatened or attacked by an enemy, but that is the only purpose for which arms may be kept or borne.

This writer acknowledges that the majority opinion makes more sense to him, as a matter of grammar and syntax and logic, than the dissents, but that is not the point of this essay.  The point is to address the meanings of certain other words or phrases of the amendment: “militia,” and “the security of a free state.”

Militia.  Both Scalia and the dissenters seem to think of a militia as an armed force established by a governmental unit – such as our colonial militias (which eventually matured into state militias), or a standing force of the federal government (the regular army, navy, etc) or a state (the national guards).  But “militia” can have more meanings than those given it by the Court. Here is another common meaning, from a popular dictionary: “a military force that engages in rebel or terrorist activities, typically in opposition to a regular army.”

The security of a free state.  No one, neither the majority nor the dissenters, pays much attention to the phrase, “the security of a free State.”  They all appear to take it to mean, national defense  – i.e.,  a defense against foreign countries that might go to war against the United States (a free state).  It does not appear that the Court felt it had any reason to think about a Militia like the Colonial militias, formed in order to resist a denial of their freedoms by their own government (the British Crown) – a resistance for the purpose of restoring “the security of a free state.” No Justice paid any attention to the possibility that “state” was being used by the Framers in the sense of the primary definition of the word: “the particular condition that someone or something is in at a specific time,” as distinct from its secondary definition, “a nation or territory considered as an organized political community under one government.”

Thus the phrase “the necessity to the security of a free state” is ambiguous.  It might refer only to having weapons for defense, for keeping the country free from foreign attack or domination.  But it might also refer to having weapons for offense: (i) in order to “rebel . . . in opposition to a regular army,” as in the case of the American rebellion against the British Crown, in order to establish (or re-establish) a free nation, or (ii) in order to preserve America’s status as a free nation – keeping us in a free condition (a “free state”).

If the Framers meant to refer only to national security, why didn’t they just refer to the security of the state (the United States of America) instead of referring to the security of “a free state?”  Was it one of the intentions of the Framers to ensure that the citizenry would be able to rebel against the American government, to create armed militias (like the original colonial militias) to resist the devolution of the country into an un-free state, such as a state whose government had become authoritarian?

 

 

One thought on “A Revolutionary Approach to the Second Amendment

  1. Does this mean that current prohibition against sale of hand grenades, mortars, tanks, machine guns and nuclear weapons violates the Second Amendment?

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