Second Amendment Interpretation

[agrippa1]

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.

In looking at this amendment recently, it seems that there are two competing interpretations:

First, that the right of the people to keep and bear arms shall not be infringed, regardless of the prefatory clause justifying that right.

Second, that the right to bear arms is tied to the outdated need for citizens to man their states' militias.

The second interpretation leads directly to a contradiction, because it reserves a right to the people, using as justification, the state's right to establish a militia consisting of those same people. The question that immediately arises is: Why would the state infringe a right that is established as necessary to its own survival? And if the amendment speaks to the infringement of this right by Congress, and establishes as its intent a state militia, why not reserve to the states the right to establish militias, rather than an individual right to bear arms, which would logically be only a means to the intended end?

I've puzzled over this wording most of my life, being a strong believer in individual gun rights as the last defense against tyranny. Finally, after applying Rand's principle of non-contradiction (I know it's not hers, but she introduced it to explicitly to me in AS), I discovered what I believe is the correct interpretation of the second amendment:

That because a well-regulated militia (i.e, a standing or reserve army) is necessary to the security of a free state, and because such a militia necessarily leads to an extreme imbalance of power in favor of the government, therefore the individual right to keep and bear arms is necessary to counter the imbalance and to check the potential misuse of power by the government or by the individual soldiers stationed among the citizens. That is, the right is necessary to counter the militias, not to enable them.

I'm sure this isn't an original interpretation, but I've never seen it stated explicitly, though Wikipedia's Second Amendment entry does include this excerpt from a Boston Journal of the Times from 1769 which supports the concept:

Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.

Has anyone run across a similar interpretation, maybe one that states it more succinctly?

[01503]

The militia ARE the people. It is a citizen's force. The militia is formed from the same people that would be deprived of their arms.

Jefferson drafted an Amendment similar, but more clear:

Virginia's Constitution and Bill of Rights were the first adopted after the Declaration of Independence. While records of the actual deliberations are limited, it is known that Thomas Jefferson drafted a document worthy of the Enlightenment. Jefferson's draft would have extended the franchise to any taxpayer, divided state lands among the landless citizens, ended importation of slaves, and banned the establishment of religion. His proposal did not mention the militia or its role in a republic, but did include a clearly individual right to arms: "No freeman shall ever be debarred the use of arms."

SOURCE: "The Second Amendment and the Historiography of the Bill of Rights" by David T. Hardy

(can be found here)

One of the first things dictators tend to do once taking power is taking away personal firearms from citizens, for the "Good of the People", the "Common Good", etc. However, it is much easier to control a population that is defenseless.

Der größte Unsinn, den man in den besetzen Ostgebieten machen könnte, sei der, den unterworfenen Völkern Waffen zu geben. Die Geschichte lehre, daß alle Herrenvölker untergegangen seien, nachdem sie den von ihnen unterworfenen Volkern Waffen bewilligt hatten.

The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so.

Adolf Hitler (1889-1945), April 11, 1942, quoted in Hitlers Tischegesprache Im Fuhrerhauptquartier 1941-1942. [Hitler's Table-Talk at the Fuhrer's Headquarters 1941-1942], Dr. Henry Picker, ed. (Athenaum-Verlag, Bonn, 1951)

SOURCE: FAQ on Jews for the Preservation of Firearms Ownership (JPFO)

(can be found here)

The point is, there are two rational reasons for a man to have arms: for recreation, or for self defense. He could use them for murder, but is a man willing to fire a gun and blow another's brains out unwilling to get that gun illegally? Therefore there is one reason left for a nation to deprive its people of arms--not to protect the citizens from each other--to take away their means of self defense.

This leaves two reasons one would want to take away guns: either they are not rational, not thinking of the consequences of this action; or they do indeed think, they do understand the consequences, and leaving the population without a means of defense is indeed their goal.

I hope the quick history helped.

[agrippa1]

I understand the moral principle behind the right to bear arms.

I'm specifically addressing the wording of the Second Amendment as written.

Saying that the militia are the people, that they are synonymous, reinforces the contradiction I referred to. I believe the amendment can only be rationally interpreted if the militia, especially the "well-regulated militia," is differentiated from "the people," i.e., the individual citizens.

The tenth amendment is clear in defining the differentiation between the United States, the States and the People. The People, in context of Constitutional rights, are the individuals.

[DavidOdden]

Article I, Section 8, Clauses 15-16 say that Congress has the power

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

which makes sense only if a militia is distinct from "the people, as a mass".

Article II, Section 2, Clauses 1 say that

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

The Militia Act of 1792 states

That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia,

blah blah blah, all establishing that the militia is a state-level military unit, whose members are a subset of "the people".

What do you want, when you're asking about the "interpretation" of the amendment? Are you asking about the objective meaning of the words used in the 2nd Amendment, or what the purpose of some individual(s) was? If you're concerned about purpose, are you concerned about the author's purpose, or the purpose of those who voted to ratify? As for the author's purpose, I believe that was that (as part of a bigger package) he felt it was necessary to keep the whole thing from unraveling. Thus I would conclude that his purpose was to get the BOR ratified, to prevent a second constitutional convention, and that this was an effective way to get the thing ratified.

As for the objective meaning, the prefatory clause states no restrictions on the right to bear arms; the operative clause asserts that there are none; and there you have the objective interpretation of the Second Amendment.

[Scott_Connery]

Here is a good read on the grammar of the 2nd if you want:

Second Amendment

[agrippa1]

Here is a good read on the grammar of the 2nd if you want:

Second Amendment

Thanks. This write up essentially follows the more rational of the two common interpretations. The key sentence here is:

"The to keep and bear arms is asserted as an essential for maintaining a militia." (italics added)

My interpretation diverges from this statement, in that I believe the Amendment can only be logically correct if interpreted to mean that a well-regulated militia is not the purpose of the right, but the cause. That is, the individual right to bear arms is required because a militia exists, not because that right is required in order to make a militia possible.

The amendment reads as an incomplete syllogism:

A: A well regulated militia is necessary for the security of a free state

B: Missing

C: Therefore, the right of the people to keep and bear arms shall not be infringed.

The missing premise is commonly assumed to be: The right to keep and bear arms is essential for maintaining a militia.

The prefatory clause is clearly meant as the premises for the logical assertion of a right. It follows therefore that the asserted right is justified by those premises, and thus if the premises can be proved wrong (or becomes untrue over the course of time), the right can be called into question by a later Congress. The correct way in which to effect this calling into question and ultimate rescindment would be to amend the Constitution with something to the effect that "A well regulated militia, being no longer dependent on individual gun ownership, the right of the people to keep and bear arms is no longer existent." However, a Supreme Court, recognizing that the premises are no longer valid, could attempt to subvert the right on those grounds, in spite of (mere) grammatical arguments to the contrary.

It should be clear that the right of individual gun ownership is no longer essential to the maintenance of a militia. It should be equally clear (especially from Mr. Copperud's definition of "well-regulated") that individual gun ownership has never been essential to the maintenance of a militia, since a state, or the United States, could have just as effectively mandated gun ownership (not as a right, but as a duty) for only those individuals suitable, screened and trained for the militia.

Therefore, the interpretation of the amendment, that the missing premise is as stated above, must be wrong. The missing premise in the syllogism must be "an unchecked militia is inconsistent with freedom," or words to similar effect.

The resulting syllogism:

A: A well regulated militia is necessary for the security of a free state,

B: However, an unchecked militia is inconsistent with individual freedom,

C: Therefore, the right of the people to keep and bear arms shall not be infringed,

Consists of two premises which are incontrovertible, and therefore expresses the logically correct reasoning behind the people's right to keep and bear arms.

Edited August 6, 2008 by agrippa1

[Grames]

... That is, the right is necessary to counter the militias, not to enable them.

I'm sure this isn't an original interpretation, but I've never seen it stated explicitly, though Wikipedia's Second Amendment entry does include this excerpt from a Boston Journal of the Times from 1769 which supports the concept:

I think your interpretation is clearly wrong, and here's why: in 1792 the militia and the people are the same. To assume that they are at odds is a modern premise. In 1769 the occupying British army troops were not a militia, but a professional standing army.

A: A well regulated militia is necessary for the security of a free state,

B: A militia is comprised of the people of a free state,

C: Therefore, the right of the people to keep and bear arms shall not be infringed,

Edited August 6, 2008 by Grames

[DavidOdden]

in 1792 the militia and the people are the same.

In fact there are two other places in the Constitution which demonstrate that "militia" and "the people" are not the same, not to mention in 1792 the Militia Act which proves the same point. Further details can be found here.

[nochrieaz]

The Founding Fathers believed heavily in what they called "natural law." That is: identity and causality. That A is A and there's no getting around it. The purpose of the entire Constitution is a means of "regulating" the government. Of keeping it bound by natural law - one of these laws being the individual's "God given rights." That these rights, on a metaphysical level, can never be taken away - that they are a part of him. That it is "right" for a man to be free. It is "right" for a man to own property, etc. They can be violated, sure, but by violating them a wrong is not made a right.

The word "militia" was synonomous with the words "military" or "army" at the time of the country's founding. After all, America's military was born out of a bunch of militias. The Minutemen, for example. Therefore, the use of the word "militia" in the 2nd Ammendment refers to the government run military. Volunteer, conscripted, full time, ad hoc - which ever.

"A well regulated militia being necessary to the security of a free state..." means: The military - and by extension the government - of a free (state of) people must be afraid ("well regulated") of it's citizens in order to maintain the state's identity as a free one (aka: in order to preserve the rights of the citizens). The Founders then merely went on to point out that possessing weaponry was the best means by which the people could keep the government afraid of them. Or, at least, revolt against a government which was no longer afraid.

Edited August 6, 2008 by nochrieaz

[D'kian]

I really fail to see any problem. The first part of the 2nd ammendment is the reason or justification, the second part says clearly "the right of the people to keep and bear Arms, shall not be infringed."

So regardless of how it's justified, the people have a right to keep and bear arms (that is to say to own and use arms) which the government cannot infringe.

[brian0918]

The Founding Fathers believed heavily in what they called "natural law." That is: identity and causality. That A is A and there's no getting around it. The purpose of the entire Constitution is a means of "regulating" the government. Of keeping it bound by natural law - one of these laws being the individual's "God given rights." That these rights, on a metaphysical level, can never be taken away - that they are a part of him. That it is "right" for a man to be free. It is "right" for a man to own property, etc. They can be violated, sure, but by violating them a wrong is not made a right.

The word "militia" was synonomous with the words "military" or "army" at the time of the country's founding. After all, America's military was born out of a bunch of militias. The Minutemen, for example. Therefore, the use of the word "militia" in the 2nd Ammendment refers to the government run military. Volunteer, conscripted, full time, ad hoc - which ever.

"A well regulated militia being necessary to the security of a free state..." means: The military - and by extension the government - of a free (state of) people must be afraid ("well regulated") of it's citizens in order to maintain the state's identity as a free one (aka: in order to preserve the rights of the citizens). The Founders then merely went on to point out that possessing weaponry was the best means by which the people could keep the government afraid of them. Or, at least, revolt against a government which was no longer afraid.

I have never seen it explained this way. It would be interesting if it were true, however then it would be very poor wording on their part. The term "well regulated" becomes the crux of the whole thing, but it is thrown in almost as a side-comment, a simple adjective added to "militia". The militia is normally seen as the actual entity "being necessary" for security.

In other words, you're saying the "security" is provided by the fact that the militia is "well-regulated" (by the people). However, a militia in and of itself provides "security" in the usual sense of the word. A better wording on their part would have been, "A well-regulated militia, being necessary for the existence (or identity) of a free state..." This removes the confusion that the militia is providing the security, not the people.

An even better wording would have been to just say exactly what you said. "A free state can only exist so long as the militia fears the public, so the right of the people to keep and bear arms shall not be infringed."

Edited August 6, 2008 by brian0918

[DavidOdden]

The term "well regulated" becomes the crux of the whole thing, but it is thrown in almost as a side-comment, a simple adjective added to "militia".

If you read The Constitution and other documents from that era, they are a bit hard to follow because of the language. Shakespeare is even harder to follow. The meaning of "well-regulated" in that era is "in proper working order; functioning". To paraphrase the Second, "Because a functioning militia is necessary to the security of a free state, the right of individuals to own and be in possession of arms shall not be {violated / denied}". The proper functioning of a militia requires that its members have weapons; a militia is drawn from the general populace; by law, all males of a certain character are part of that militia.

[Grames]

In fact there are two other places in the Constitution which demonstrate that "militia" and "the people" are not the same, not to mention in 1792 the Militia Act which proves the same point. Further details can be found here.

The same individuals comprise both groups. Those persons who were not eligible for service in the militia (women, children, slaves) did not have the right to vote and in some states had obstacles to owning property, so were excluded from "the people".

[DavidOdden]

The same individuals comprise both groups. Those persons who were not eligible for service in the militia (women, children, slaves) did not have the right to vote and in some states had obstacles to owning property, so were excluded from "the people".

An interesting interpretation. The Militia Act is clear about the composition of "militia", which states that

“each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia”

The Constitution and Bill of Rights do refer to the notion “person, people”, in a few places:

Art.I; Sec. 2; Cl. 3 “...shall be determined by adding to the whole Number of free

Persons

, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

Art I; Sec. 9; “The Migration or Importation of such

Persons

as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

Art. III; Sec. 3; “No

Person

shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Art. IV; Sec. 2; “A

Person

charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime”

1st amendment: “or the right of

the people

peaceably to assemble, and to petition the Government for a redress of grievances”

4th:“The right of

the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”

5th:“No

person

shall be held to answer for any capital, or otherwise infamous crime”

Is your position that only free able-bodied white male citizens between 18 and 45 had the constitutional right to peaceably assemble, be secure in their homes, and so on? Since the Constitution is rather silent on who gets to vote, how do you come to the conclusion that the meaning of "the people" for the US is determined by something not even addressed at the federal level? Why would there be a reference (implicit) to slaves as another kind of person?

[Grames]

An interesting interpretation. The Militia Act is clear about the composition of "militia", which states that

“each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia”

Those most active in society were the same individuals subject to militia duty. After subtracting every free and able-bodied white male citizen from the population, who is left? Women, children, slaves, the elderly, and sickly. With the exception of some of the old men, this is not the group of people that owned property, transacted business, voted or debated politics in 1792. They didn't put themselves in a position to need protection from the state, or to exercise their rights even though they had some.

Is your position that only free able-bodied white male citizens between 18 and 45 had the constitutional right to peaceably assemble, be secure in their homes, and so on? Since the Constitution is rather silent on who gets to vote, how do you come to the conclusion that the meaning of "the people" for the US is determined by something not even addressed at the federal level? Why would there be a reference (implicit) to slaves as another kind of person?

Not my position, their position. And its not even a properly justified formal argument, just custom and prejudice against women and slaves. How often did women commit treason? How many women peacably assembled to protest the whiskey excise tax of 1794? The laws and constitution were crafted with white male citizens in mind, and the protection of the the law was fully extended to other persons and 'second class citizens' over time as those prejudices were overcome by rationality. Since the Constitution let the several states have differing definitions of 'free person', it is appropriate to look to the the states for an in-context definition of 'the people'.

The three-fifths compromise came about because none of the slave states would give slaves the right to vote, or permit them to self organize in militias, yet they wanted the proportional representation in the House from counting the slave population. It is an obvious contradiction. Yes they were referred to as person, but only 3/5 of a person. I would say that in principle to be 3/5 of a person is to be no person at all.

With regard to the second amendment, with my hypothetical B term added:

A: A well regulated militia is necessary for the security of a free state,

B: A militia is comprised of the people of a free state,

C: Therefore, the right of the people to keep and bear arms shall not be infringed.

The militia is the linking term in the argument. If we dispense with that and extend the definition of 'the people' to the modern context of 'everyone but children and felons' we get a broad and strong right to keep and bear arms. Others would argue that dispensing with the militia obviates the entire amendment. To defeat that objection I want to equate the people with the militia. In the 1792 context it is possible to make that argument by appealing to the common understanding of the laws including their customs and prejudices of the time. Eliminating those prejudices for the modern context then extends the right.

I interpret the second amendment as follows:

An armed people is necessary for the security of a free state, Therefore, the right of the people to keep and bear arms shall not be infringed.

[agrippa1]

If you read The Constitution and other documents from that era, they are a bit hard to follow because of the language. Shakespeare is even harder to follow. The meaning of "well-regulated" in that era is "in proper working order; functioning". To paraphrase the Second, "Because a functioning militia is necessary to the security of a free state, the right of individuals to own and be in possession of arms shall not be {violated / denied}". The proper functioning of a militia requires that its members have weapons; a militia is drawn from the general populace; by law, all males of a certain character are part of that militia.

I agree, but why would a necessity of the state lead to a requirement for an individual right? In Switzerland all males of a certain age and status are required by law to keep arms. Surely our second amendment right to keep and bear arms is not equivalent to the Swiss government's mandate to keep arms. Unless you hold that the right to keep arms implies a duty to keep arms the assertion is implausible. Does the right to assemble, worship, petition the gov't, etc. imply a duty to perform those acts as well? There is definitely a logical flaw in the interpretation of the 2nd. It's quite possible that the flaw existed in the original intent of that amendment, but the more I read the words, the more I'm convinced we're reading it wrong.

The question is a salient one, because it is assumed by almost all Americans that the right to bear arms derives from the state's necessity to arm its men for militias. The argument that militias, as they existed in the eighteenth century, are no longer viable can therefore lead to the conclusion that the right to bear arms is antiquated and has been superceded by a need to prevent future Columbines, Va Techs, San Ysidros, Jim Bradys, etc., etc.

I interpret the second amendment as follows:

An armed people is necessary for the security of a free state, Therefore, the right of the people to keep and bear arms shall not be infringed.

You interpret "a well-regulated militia" as "an armed people."

Sorry, that's a stretch.

[DavidOdden]

I interpret the second amendment as follows:

An armed people is necessary for the security of a free state, Therefore, the right of the people to keep and bear arms shall not be infringed.

I see. Well, I interpret it as "An armed militia is necessary for the security of a free state, Therefore, the right of the people to keep and bear arms shall not be infringed." It isn't important to that amendment to say that "a militia is drawn from a particular set of the people", since that is not an essential fact of the concept "militia". The lower age could be 16 or 14; the upper age could be 50; it could include all free men, or all white men; it could even include women even though they felt that women were a bit delicate. At any rate, I'm simply saying that the founders and framers did not in fact interpret "the people" to mean "free able-bodied white males 18-45" and that in expressing rights and laws about treason, "people" means what it means, not something special. Whereas militia is a subset of "the people".

[Grames]

Sorry, that's a stretch.

Yes it is, but its the only way to get where you and I want to go given the wording of the second amendment. It would be better if the 2nd didn't try to justify why the right exists, or seem to subordinate an individual right to a need of the State. But it does, so the 2nd will always be in jeopardy of being practically vitiated by a hostile Supreme Court. Only rewriting it will settle the matter.

[Scott_Connery]

I really fail to see any problem. The first part of the 2nd ammendment is the reason or justification, the second part says clearly "the right of the people to keep and bear Arms, shall not be infringed."

So regardless of how it's justified, the people have a right to keep and bear arms (that is to say to own and use arms) which the government cannot infringe.

I think this sums it well. The final clause is not grammatically dependent on the status of the first bits. They are simply the founders explanation. It doesn't constitutionally matter if you belong to a militia (organized or not), it just matter is your right to keep and bear arms is being infringed.

People can debate whether or not they like this, but that is the only correct reading of the text.

[DarkWaters]

One of the first things dictators tend to do once taking power is taking away personal firearms from citizens ...

I hear this argument a lot. Usually, it is to insinuate that any law intended to limit private gun ownership is an early warning sign of dictatorship. While this is not NickS's reasoning (he did indicate that the lawmakers could just be irrational), I nevertheless wanted to identify the non-sequitur in the line of reasoning that I have described.

The quoted statement boils down to:

Dictatorship implies no right to bear arms. (I)

Needless to say, just as A => B does not imply B => A, the statement (I) does not imply that the absence of the right to private gun ownership implies a tyranny.

To allege that the absence of rights to private gun ownership is indicative of a tyranny leaves out of the context of the other freedoms that may or may not be protected by the state in question. The right to own a gun for private, emergency self-defense is one of a myriad of freedoms that should be protected in a free society. However, we must remember that we cannot judge how free a country is solely on the legal permissibility of gun ownership. Nicaragua after its 1979 revolution, Palestine, Sudan and Afghanistan are not free countries because their populations are heavily armed. Likewise, Washington D.C. was not a microcosm of Soviet Russia during the existence of its handgun ban.

Anyway, the issue of dealing with arms in a free society is a complex issue that can use more Objectivist scholarship. To be able to properly defend the right to bear arms for emergency self-defense, we should identify and dismiss improper defenses of this right.

[Scott_Connery]

To allege that the absence of rights to private gun ownership is indicative of a tyranny leaves out of the context of the other freedoms that may or may not be protected by the state in question. The right to own a gun for private, emergency self-defense is one of a myriad of freedoms that should be protected in a free society.

Gun ownership and the ability to protect one's own life are such a fundamental element of freedom (not just having a high standard of living or some other rubric) that any government which bans them is a tyranny.

It is of course true that some tyrannies do not ban guns, and some tyrannies that do ban guns are nicer than others, but these facts do not change the essential character of the government in question.

[DavidOdden]

Gun ownership and the ability to protect one's own life are such a fundamental element of freedom (not just having a high standard of living or some other rubric) that any government which bans them is a tyranny.

First a question -- are you saying that this is "true by definition", or are you making a factual claim which could be in error. It happens that Japan, which under any rational analysis of the concept "tyranny" is not a tyranny, outlaws swords and firearms, except for shotguns used strictly for skeet shooting and hunting, subject to a rigorous licensing procedure. It is completely correct to say that this is an improper restriction of citizen's freedom, and completely false to say that Japan is a tyranny.

This fact about fundamental elements of freedom is true of a number of other things: broadly, those things that are needed to disseminate ideas, and those things that are needed to survive.

[Seeker]

This fact about fundamental elements of freedom is true of a number of other things: broadly, those things that are needed to disseminate ideas, and those things that are needed to survive.

There is also the ultimate power of the people to make and break governments which entails the right to arms, which is arguably even more fundamental than all the others since they ultimately depend upon it.