What Does the 2nd Amendment Mean? (Corrected Version 10/27/17)

by | Nov 10, 2017 | Governance and Government | 164 comments

The Second Amendment to the Constitution of the United States 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.” It seems simple and straight forward. Unfortunately, the wording/grammar itself and the multiple attempts to interpret it throughout history have added layers of intended and unintended legal, academic, and emotional complexity.

After reading a sampling of the various positional arguments and scholarly discussions, as well as the documents leading up to ratification of the Amendment itself in 1791 as part of the Bill of Rights, it appears to me that the current entrenched and strident  argument on gun control comes down to two fundamental questions: (1) Was the Amendment created to protect a strong state militia or was it created to ensure an individual’s right to own a firearm? (2) Can we protect the constitutional freedom to bear arms and still accommodate restriction and regulation on that freedom?

My answer, and that of many scholars, to the first question, is “both”. Based on the historical record and the documented discussions leading up to the 2nd Amendment, it appears logical and straight forward that the Founding fathers meant to include both options in the Amendment. However, to me, they are separate and distinct intentions and are not intertwined or interdependent as many interpretations imply.

The intent was to assure that (a) all citizens of the United States had and should always have the right to “bear arms” (i.e., to own and use a gun;) and (b) that each state should have the right and the responsibility to maintain an equipped and trained militia. While these two intents may have been linked by practice and experience in the 18th century, they are not so in the 21st century. Therefore, for me, how we handle one does not necessarily strengthen or weaken the other.

In reading the Constitutions of some of the states, there emerges a pattern that supports the separation of these two Constitutional intents. In their support of the 2nd Amendment, several states (e.g., Virginia and New York) added the qualifying requirements that said state militias should be well trained and regulated. Perhaps the Articles of Confederation make it the most clear in stating “ …every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” 

It’s true that the Founding Fathers likely envisioned that all citizens owning firearms would know full well how to use them, and would be willing and expected to “step up” to the defense of state and country when called upon – to be the necessary militia. But as more states joined the Union and our society evolved, it is also true that the vision evolved and became more sophisticated – the distinction between an individual owning guns for protection of family and property and the maintenance of a strong, trained, and well-regulated state militia (i.e., National Guard Units) became much clearer; and both are supported by the 2nd Amendment. However, they are not necessarily meant to be the same beings in the same space and time.

So what of our tolerance for regulation on the individual freedom to bear arms? One, I don’t believe there was never the intent to regulate or control the right to bear arms. Nor do I believe that the freedom and right to bear arms will be eroded if regulated in any way. We continue to have free speech, yet regulations on that right have evolved over the years based on common sense and public safety: we can’t yell “fire” in a crowded theater when there is no fire; we can’t incite violence without consequence; we can’t libel someone without being held accountable. And we continue to have tremendous latitude on speaking freely, which we defend vigorously.

Conclusion? We can maintain our adamant support of the 2nd Amendment while defining and implementing sensible regulation on gun ownership. I am a gun advocate and gun owner. Raised on a ranch, it would not occur to me to be without one or more guns for protection against the uncertainties and challenges of life; and to know how to safely use them. Similarly, it would never occur to me to stockpile weapons, own and use assault weapons, or utilize large capacity magazines. All those things are part and parcel of our trained and equipped state militia and national military; and I definitely expect them to have, and to use, such weapons when called upon to exercise their responsibilities. 

This thought process results in my failure to understand two things: (1) why anyone would think banning gun ownership among our citizens was in support of our Constitution, and (2) how anyone can reasonably defend the right of our citizens to own military-grade assault weaponry.

Regarding recent events in Sutherland Springs Texas the perpetrator, Devin Patrick Kelley, had an assault weapon with large capacity magazines (a Ruger AR rifle with a 30-round magazine). President Trump noted: “If the neighbor who confronted the gunman hadn’t had a rifle,” Trump said, “instead of having 26 dead, you would have had hundreds more dead.” However, we must also note – if Kelley hadn’t had assault weaponry and large capacity magazines, far less people in that church would have likely been killed and injured before the gunman was brought down. Further, had Stephen Willeford, the hero who brought down Devin Patrick Kelley, not been a trained NRA instructor, his use of the weapon might not have been so measured, and others may have also been inadvertently injured or killed. 

We have the framework of reasonable and logical gun ownership regulation in many states – background checks, prohibition against ownership under conditions such as having mental health issues, being a felon, etc., and requirements to undergo training before being allowed to take ownership of the weapon. These regulations need to be in place in every state and they need to be rigorously and consistently enforced; and applied to both the public and private sale of guns. We need to build on these regulations by immediately banning the private ownership of assault weapons, bump stocks, large capacity magazines, and silencers. These items cannot be logically justified for private ownership in a strong democracy with a stable political system and a standing state militia and national military.

These are the basic steps to good governance for the safety of the populace and strong protection of the 2nd Amendment. It’s time to stop the rhetoric and partisan hard-lining, and get about doing the business of the people for the protection of both the people and the Constitution.

NOTE: This posting was edited from the original to clarify terminology re “Automatic” weapons and “assault” weapons; and to note that Stephen Willeford also owned and used an AR-15 rifle in bringing the shooter down. The original posting identified Mr. Willeford’s weaponry as a basic hunting, non-assault rifle rather than an AR-15;  and failed to note that he was a trained, former NRA instructor.

164 Comments

  1. Karen Mohring
    Karen Mohring on November 19, 2017 at 4:26 pm

    Yes, I agree, stop the rhetoric and partisan hard-lining. I would also add, stop the lies.
    The Ruger AR-556 is NOT an automatic weapon, it is a semi-automatic rifle. I would also add that the rifle used by the neighbor to shoot at the shooter was an AR-15 platform rifle as well. Neither rifle is a “military grade” weapon. The same type of gun was used by both, which negates your entire premise.
    You give examples of how the 1st Amendment is “regulated” by libel and inciting a riot, just like the 2A is “regulated” by laws against murder and assault with a deadly weapon.
    The Constitution and its accompanying Bill of Rights do not give us our rights, we are born with them. They protect our rights from infringement by the Government. They are a rulebook for the Government, not the Citizen.
    Every other Right protected by the Bill of Rights is an individual one. This is why the Supreme Court ruled that the 2A protects an Individual’s right to keep and bear arms.
    While on the subject, the words “bear arms” are also in the 2A. Definition of “bear”, to carry.
    As for the National Guard, nope wrong again. The National Guard and all its equipment are owned by the Federal Governent. Making it part of the “standing armies”.
    Title 32 U.S.C. in July 1918 completely altered the definition of the militia and its service, who controls it and what it is. The difference between the National Guard and Regular Army was swept away, and became a personnel pay folder classification only, thus nationalizing the entire National Guard into the Regular Standing Armies of the United States.”
    http://www.barefootsworld.net/article2.html
    You are wrong on so many levels in your writing here, I don’t have time to address it all. A lot more research is required before you write about the 2A or “gun control” again, if you want to tell the truth that is.

  2. Fran David
    Fran David on November 28, 2017 at 2:42 am

    I take your criticism as very valid, apologize for my unintentional errors, and appreciate you taking the time to write and send your response. I assure you there was and is no intent to lie. I do disagree that my “entire premise” is negated, and, I disagree with some of your conclusions and interpretations. However, I find your response and arguments well-presented and will continue to give the matter much thought. Thank you for engaging in the conversation.

  3. Karen Mohring
    Karen Mohring on November 28, 2017 at 6:15 pm

    I appreciate your response. You can “disagree with some of my conclusions” all you like, that does not make them false. They are based on many hours of reading the correspondence and arguments of the founders and other men of the time the US Constitution and Bill of Rights was written and ratified.

    Here are two excerpts from St. George Tucker in his work of 1803 titled “View of the Constitution of the United States”.
    http://lf-oll.s3.amazonaws.com/titles/693/Tucker_0023_EBk_v6.0.pdf
    8. 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. Amendments to C.U.S. Art.4.

    This may be considered as the true palladium of liberty. … The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine
    this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious
    pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable
    to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior
    tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

    The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.

    Another contentious point in your article is that you keep referring to “assault weapons”. There is no such animal. The AR-15 platform is nothing more than a rifle, and technically a 22 rifle at that. It is far different than the weapons used by our military.
    The fact that Willeford is a retired NRA instructor means nothing more than he taught people gun safety. There are plenty of citizens that are not instructors who have just as much knowledge, skill and accuracy as this man does. What do suppressors (silencers) have to do with gun control? They do nothing more than dampen the sound of a gun. They certainly do not make it “silent”, not by any stretch of the imagination. Their purpose is not to hide a gun shot, but to save the hearing of those, like instructors, who spend many hours with their ears being assaulted by this sound.
    Why ban bump stocks, a useful tool for those with hand strength issues? Because 1 person used it for a heinous purpose? The same function of a bump stock can be performed with other objects, such as a shoe lace. Should those be banned too?
    And this is where we come to the real purpose behind the ire of most gun owners anytime “gun control” is mentioned. Those who are proponents of “stricter gun laws” do not understand the concept of innocent until proven guilty in a court of law. Because a handful of people over the last 100 years have used their legally owned firearms in an unlawful manner, to attack and kill their fellow citizens, ALL citizens MUST have their 2A rights infringed upon. This makes all those who do not have the capacity to think for themselves feel “safe”. It does nothing to actually make them safer, but as long as they feel that way, it is good. Keep in mind that a large majority of these “shooters” did not legally own the weapons they used to carry out these assaults. A large majority of them actually lied on their 4473 forms, and were not caught because the reporting of prohibited persons to the NICS system is NOT completed as it is supposed to be. Why expand a background check system that does not work to private sales? Never mind that then all private sales would have to be performed (and paid for) at a licensed dealer because there is NO private citizen access to the NICS system. Keep in mind that the “private sale” background check regulation will only apply to law abiding citizens. The criminals selling stolen guns out of the trunk of their cars are never going to abide by this law.
    Please name one instance where any of the new laws you are proposing would have stopped any of these shootings.
    Bottom line is you can’t regulate evil, Laws only regulate the law abiding, if a criminal is willing to break the law to murder someone, do you think he will balk at breaking a law in procuring the weapon to do so?
    Perhaps we should look instead to the reason these attacks are happening. What has occurred in our society in the last 50 years to cause otherwise good citizens to WANT to kill as many of their fellow citizens as possible? There is the real discussion we should be having. It is also the only discussion that may actually do any good in the prevention of more of these types of murders.

  4. D. M.
    D. M. on November 28, 2017 at 8:55 pm

    Hi Fran, I highly suggest an excellent, enlightening read called “Historical Bases of the Right To Keep and Bear Arms” by David T. Hardy, http://www.guncite.com/journals/senrpt/senhardy.html

    [Originally published as Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Cong., 2d Sess., The Right to Keep and Bear Arms, 45-67 (1982) (“Other Views”). Reproduced in the 1982 Senate Report, pg. 45-67.]

  5. Fran David
    Fran David on April 17, 2018 at 9:29 pm

    Thanks for the referral and taking the time to read and reply. I have been away from the blog and writing but am back to it now. In the process, I have located the suggested document and am in the process of reading it. Thanks.

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