“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 it says in the second amendment to the U.S. Constitution. But the precise meaning of that apparently simple sentence has been more fiercely debated than many verses in the Bible. Indeed, for gun advocates the verse has taken on the status of holy writ.
Interpretations have come before the courts many times. The presently prevailing interpretation is expressed in the 2008 Supreme Court case Heller v District of Columbia.
Here’s the essential part of that decision — read it carefully:
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment . Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , 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. Pp. 47–54.
2. 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.”
To summarize, the court dismisses the idea that only those persons involved in “a well regulated militia” are entitled to bear arms. It parses the grammar of the amendment carefully, noting the first part is a “prefatory phrase” that does not impose limitations on the second part. This may not seem logical to the casual reader but it is in keeping with the rules of grammar and the court supports the finding with additional materials from the period of the drafting of the constitution. Like it or not, it is a fully supportable conclusion.
For the purposes of those who want reasonable restrictions on gun ownership — restrictions that will help us avoid the terrible tragedies that have overwhelmed us in recent years; it is part two that gives hope and encouragement. Contrary to the hysterical claims of the National Rifle Association and many in the Congress, the court clearly states the right to bear arms is no less subject to limitation than other rights.
Freedom of Speech does not extend to slander or, as Justice Holmes famously stated “to cry fire in a crowded theater when there is no fire.” It does not cover inciting a riot or encouraging treason. Freedom of Religion certainly does not extend to — say — reviving the ancient Carthaginian worship of the god Baal with infant sacrifices. We could go down the list with examples.
There is a clear legal foundation for imposing limits both on the types of weapons available to the public and on what members of the pubic may have such weapons. In opposing pretty much all such limitations, (in defiance of the wishes of the majority of its own members), the leadership of the NRA leagues itself firmly with terrorists and maniacs. This merits the scorn of decent people everywhere.
Even more worthy of scorn are the NRA’s boot lickers in Congress and state legislatures who are afraid of a minority of NRA members. Their manhood rests in the phallic symbol of a gun barrel.
There have been truly vicious and heartless efforts by some politicians, and right wing media, to discredit the students from Parkland who are spearheading the movement to get intelligent restrictions on assault weapons at long last. The kids have shown themselves to be tough and organized — unwilling to settle any longer for the mealy-mouthed and vacuous “thoughts and prayers” the politicians have offered in place of real solutions.
As Parkland students stated and tweeted:
“Actually, for me, the worst news I got was that 17 people died in my school. One of my best friends was shot twice. And many more were injured. But, sure, keep making us look like we don’t know anything. in reality what we’re doing is much, much, much bigger than you can imagine. t.co/CUn4BfffSX
— Sarah Chadwick// #NEVERAGAIN (@sarahchad_) February 21, 2018
Parkland student David Hogg stated the situation very clearly. When interviewed by CNN’s Anderson Cooper, he said, “The fact that some of the students at Stoneman Douglas High School… are showing more maturity and political action than many of our elected officials is a testament to how disgusting and broken our political system is right now in America. But we’re trying to fix that,”
Sarah Chadwick, David Hogg and the rest of the Stoneman High students know what they are talking about. They are the ones who hid in closets and dark corners as a monster murdered their friends at random. They know too well the terrible price of the NRA’s intransigence, and they aren’t going to take it anymore.
As I wrote this article, thousands of young people assembled in Washington D.C. to demand something be done to protect the most valuable part of out nation — our youth. They are showing the way, as young people have so often in history, to an older generation too ossified, too bought and paid for by special interests like the gun lobby, too tarnished and grown amoral to do the right thing.
These kids are our only hope. May whatever gods there are, bless and empower them for we have never needed them more than we do right now.
Commentator Toby Grace is Editor Emeritus of Out In Jersey magazine.