“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 to the United States Constitution. Undoubtedly, most Americans are familiar with these lines even if they cannot recite them directly from memory. However, like many aspects of the Constitution there has been debate as to the meaning of the amendment, particularly with regard to the terms ‘militia’ and ‘well-regulated’. In order to clear up some of this confusion, let us dive a little deeper into the meaning of the amendment with the hope that we can clarify the original intent of both the language and the amendment as a whole.
Much of the debate revolving around the Second Amendment stems from the language used in drafting the Bill of Rights. More specifically, those in favor of expansive restrictions believe that the clause following the second comma is subordinate to the first clause and that the “right of the people to keep and bear arms” extends only to those individuals who are active participants in the organized militia or National Guard. Though on the surface this seems like a plausible explanation, there are some real flaws with looking at the amendment this way.
Up until the 2008 Heller case, many of those in favor of restricting the Second Amendment argued that the amendment applied only to a government sponsored militia force. Though much of this thought ran contrary to documentation predating the Constitution (i.e. Federalist Papers), treatment of the Second Amendment as a collective right was a highly popular interpretation. In the 2008 case, the Supreme Court confirmed that the Second Amendment does in fact protect an individual right and that there is no requirement to participate in organized militia activity in order to enjoy the amendment’s protection. Further, though the court ruled that some restrictions with regard to where weapons can be carried may be permissible, the majority opinion established that the amendment also protects the rights of individuals to own the same type of weapons that a militia would utilize and are in common use for lawful purposes.
Possibly the most glaring issue with the aforementioned interpretation is that the Second Militia Act of 1792 (the Bill of Rights was ratified just prior, in 1791) established a very clear definition for the term ‘militia’. In the text of the act, the militia is defined as “every free able-bodied white male citizen” between ages 18 and 45. Later, this definition was expanded to include all males and the ages opened to those between 18 and 54. With this in mind, even if the right of the people to keep and bear arms were subordinate to militia participation, all able-bodied males would be protected by the amendment. Though the Militia Act was replaced in 1903 with the establishment of the National Guard, the original intent of the Second Amendment remains unchanged and the distinction between an organized militia and an unorganized one still exists, as is outlined in the 1939 United States vs. Miller case:
“The significance attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
Another issue with the limited interpretation of the amendment can be found when examining the main body of the Constitution. In Article 1, Section 8, Congress reserves the right to call forth the militia to uphold the laws of the land. If the federal government maintains the authority to equip and deploy the militia, why would it be necessary to include an amendment protecting the militia’s ability to arm itself? If the militia (by nature an armed body) is to be maintained by the federal government, surely it would not also need protection from that very same governing body.
Even among those who accept the legal definition of the militia there are some who place great emphasis on the phrase ‘well-regulated’
and believe it to imply certain restrictions on the right to keep and bear arms. In fact, based on the usage of the phrase in the Oxford English Dictionary between 1700 and 1900, ‘well-regulated’ meant for something to be well-ordered or properly calibrated. Clearly, the importance of considering the original meaning of the language cannot be understated.
Perhaps most telling of all, those familiar with 18th century English have established that no such hierarchical relationship exists between the right of the people to bear arms and the importance of the militia. In a 1991 interview, former USC journalism professor, Roy Copperund, maintained that “[t]he right to keep and bear arms is not said by the amendment to depend on the existence of the militia”. Copperund then went further to explain that the language implies that the right to bear arms existed prior to the amendment’s drafting and is unconditional.
In summary, not only is the right of the people to keep and bear arms not contingent on the existence of a militia, the Second Amendment’s usage of ‘well-regulated’ does not imply the sort of restrictions that are often proposed by gun control proponents. The individual right to keep and bear arms has been recently affirmed by the Supreme Court, not only in the 2008 Heller case, but also in 2010 in McDonald vs. Chicago. After closer examination, it is clear that proposing further restrictions on the Second Amendment without a complete understanding of its meaning is incredibly misguided and inherently reckless.