Submitted by SHANE HUGHES, Bowling Green
Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. Let me first start by breaking down the 2nd Amendment. The text reads:
“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.” (1)
In order to understand the 2nd Amendment, you need to understand subordinate clauses and the rules of grammar as practiced in a historical context by our founding fathers.
Commas were used to subcategorize ideas pertaining to the formal thought or premise, in grammatical context of that which is being stated. If you read the other amendments, you’ll find that the formal idea is recapitulated using semicolons and that commas are used as to denote exception to a premise or idea.
Nowhere in the Bill of Rights is the subdivision of a formal idea into supporting ideas by use of punctuation more apparent than in the 2nd Amendment. The 2nd Amendment, as read and intended by its writers, is formally establishing a well-regulated militia that shall not be infringed upon.
The supporting ideas of the formal are:
[the well-regulated militia] is necessary to security of a free State
the right of the people [the militia well-regulated militia] to keep and bear arms.
If you neglect the words between the first and last commas, you’ll see formal idea, and that all language in between is support for the formal.
Now, in order to understand what the founding fathers meant by “well-regulated militia” we have to look at Article 1 and Article 2 of the Constitution, where they defined the role of the Legislative Branch, i.e. Congress, and the role of the Executive Branch, i.e. the president.
Article 1, Section 8, Paragraphs 15/16, reads:
“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;” (2)
Article 2, Section 2, Paragraph 1, reads:
“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;” (3)
Let’s break these down to see if we can determine the intent of our founding fathers. “To provide for the calling forth of the Militia, to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
Congress has established no method for calling forth a militia as defined by our modern, colloquial interpretation, which is militias such as the Three Percent Militia, to respond to any of these scenarios. Congress has established a method for calling forth the National Guard from each state, and the National Guard routinely responds to these different scenarios, both at home and abroad.
Let’s look at the next paragraph of Article 1. “To provide for organizing, arming, and disciplining, the Militia,”
Congress has not provided for organizing, arming, or disciplining militias such as the Three Percent Militia, but they have provided organizing, arming, and disciplining for every state’s National Guard.
“and for governing such Part of them as may be employed in the Service of the United States,”
This portion means that Congress can call the militia to support the regular armed forces. Again, there is no process for this when it comes to the colloquial definition of militias. Only the National Guard can be called on to support the active duty military.
“reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
This portion means the states have the authority to train the militia as they see fit, as long as it meets the minimum standards set by Congress. Again, we see the same thing. All members of the National Guard go through the same military training courses as the active duty military. Nowhere does this apply to other militias.
Now, let’s look at the first sentence of Article 2, Section 2. “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 regular citizens who meet up every so often for target practice as defined in the colloquial definition of militia do not fall under the authority of the president. Yet again we see that the National Guard does fall under the authority of the president, but only when called to active duty. The rest of the time, the National Guard falls under the authority of their state’s governor.
If you need additional evidence that the founding fathers meant the National Guard when using the word militia, I present to you the Militia Act of 1792 (4)
Chapter 33, Section 3, reads:
“That within one year of the passing of this act, the militia of the respective states shall be arranged into divisions, brigades, regiments, battalions and companies as the legislature of each state shall direct.”
This further proves that the founding fathers intended for the militia to be a regular standing force that would reside under the authority of each state for the purposes listed in Article 1 of the Constitution.
Another important element of this debate includes the various Supreme Court rulings.
In District of Columbia v. Heller (5), the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nation’s capital. A 5–4 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, unconnected to a militia. This ruling was narrow in its scope, and applied only to handguns for personal defense. Let’s take a closer look.
Paragraph 1, subparagraph f, reads:
“None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.”
The key to this paragraph is that the ruling “limits the type of weapon to which the right applies.” This explains why the public does not have access to fully automatic weapons, such as the M240-G. The other important part to note is “those in common use for lawful purposes.” This is the part that establishes self-defense as a lawful reason for citizens to possess handguns. This can also be extended to rifles and shotguns used for hunting.
Paragraph 2 of DC v. Columbia expands on subparagraph f:
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those ‘ in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
There’s a lot going on with this paragraph so I’m going to focus on two things: First the ruling affirms that the 2nd Amendment is limited in scope and doesn’t prevent reasonable restrictions on guns for citizens unconnected to a militia, i.e the National Guard as I already established. Second, those restrictions apply to all weapons deemed “dangerous and unusual”, which could easily be applied to the AR-15, and all civilian rifles based on rifles used by the U.S. military for the express purpose of engaging in combat and attacking military targets.
Now for a personal note. I grew up in the hills of Southern Indiana. I served in the Marines Corps. I have worked as an armed guard with a private security company. I still serve in the National Guard. I own more guns than I need, or use. I am not anti-gun. The reason I make these arguments is not to advocate for any type of weapons ban. I make this argument to show that the NRA’s all-guns-of-any-kind-for-everyone is not supported by the laws laid down by our founding fathers and upheld in the Supreme Court. I support stronger background checks which include mental health assessments, but I seem to be in the minority of gun enthusiasts who mostly follow the NRA’s hardline approach.
SOURCES:
1) https://constitutioncenter.org/interactive-constitution/amendments/amendment-ii
2) https://constitutioncenter.org/interactive-constitution/articles/article-i
3) https://constitutioncenter.org/interactive-constitution/articles/article-ii
4) https://www.loc.gov/law/help/statutes-at-large/2nd-congress/c2.pdf
5) https://supreme.justia.com/cases/federal/us/554/570/
