COURRÈGES: Making a Hash of the Second Amendment

With enough verbal gymnastics, you can make the Second Amendment mean the opposite of what it actually says.

Last Friday, the New Orleans advocate ran a letter to the editor from Peter Robins-Brown, a local freelance writer.  The letter is truly breathtaking insofar as it manages to combine virtually every bogus trope regarding the Second Amendment typically expressed by those supportive of severe gun restrictions.  Here’s what Robins-Brown writes, together with my analysis.

Even in the aftermath of mass shootings, gun advocates proclaim their Second Amendment “rights”. But what does the Second Amendment actually guarantee?

It says: “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.”

One of the great tragedies of modern America is that the NRA and its allies have convinced people to ignore the first two clauses of that four-clause sentence, while making the final clauses sacrosanct. Any sentence should be read in its entirety to understand its meaning:

  • “A well-regulated militia”: Are mass shooters or criminal gangs well-regulated militias?

First of all, mass shooters and members of criminal gangs are already forbidden from owning firearms, and very few would dispute the constitutional validity of those prohibitions (and to the extent we’re talking about public policy, I’ve already addressed the issue of statistics relative to gun control in a separate piece).

Secondly, notice the sleight of hand at word here. “Militia,” a singular term, suddenly changes to the plural “militias.” This is crucial, because the reference to the “militia” in the Second Amendment is actually to the whole body of the people capable of bearing arms, an individual state militia or other organized subset.  That phrase “body of the people” was regularly used to describe the militia around the time of ratification, both in Congress and the wider media. Even today, federal law still describes the militia as consisting of “of all able-bodied males at least 17 years of age and . . . under 45 years of age” who are citizens or have made a citizenship declaration.

Finally, the foregoing is why the first part of the Second Amendment, known as the “prefatory clause,” actually dovetails with the second part, the “operative clause.”  The “people” to whom the right is guaranteed are essentially the same people that consist of the militia.  Any other interpretation simply isn’t tenable.

  • “being necessary to the security of a free state”: America was founded as a free state after citizen-soldiers used single-shot muskets to defeat the British Empire. We didn’t have a standing army at the time. The founders were establishing a national security mechanism to protect against attempts by foreign adversaries to reassert authoritarian control over our newly formed “free state.”

Here, Robins-Brown doesn’t seem to apprehend that the founders were not simply concerned about “foreign adversaries” but also domestic tyranny.  The militia was seen as a bulwark against potential abuse by the federal government, particularly if it maintained a regular standing army.  James Madison (the “father of the constitution” who wrote the original version the Second Amendment), wrote about this explicitly in Federalist No. 46: “Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.”

  • “the right of the people to keep and bear arms, shall not be infringed.” These final two clauses (and they are two because of an oddly placed and seemingly unnecessary comma) come on the heels of the first two clauses. Basic grammatical rule tell us that this final part(s) is contingent on the first two parts.

Unfortunately, this bit is simply bad grammar.  The prefatory clause gives a justification, but it is not necessarily an exclusive one, and the existence of a justification does not make the operative clause contingent.  If we said that “being that sock-hops are good, the people have the right to dance,” it doesn’t make it acceptable for to enact bans on people dancing by themselves.  It isn’t consistent with the right expressed.

Furthermore, the justification is written into the amendment itself; even if Robins-Brown thinks it is antiquated or inadequate (even according to its own terms), it stands as written and the only proper way to change it it is to amend the Constitution.  Likewise, perhaps nobody holds “sock-hops” anymore, and perhaps they aren’t really “good,” but disagreeing with what the Constitution asserts doesn’t negate its legal effect.

I believe in the Second Amendment, which is why I support the U.S. military, a well-regulated militia that protects the security of our free state. Nothing in the Second Amendment guarantees Americans the “right” to own any kind of gun or number of guns they want. In fact, the first thing it speaks to is the term “well regulated.”

Now, this devolves into nonsense.  First of all, as previously discussed, the Second Amendment was drafted, in large part, because of suspicion of standing armies.  The “militia” is definitely not a standing army; to say that the U.S. military is a “well-regulated militia” turns the Second Amendment completely on its head.  It also makes the Second Amendment downright incoherent. A Constitutional right for the military to possess firearms?  Why on earth would that be necessary in any way?

Secondly, Robins-Brown does not seem to know what “well regulated” means in this context.  It is clearly not a reference to government regulation. It wouldn’t make any sense for the Bill of Rights to actually grant additional powers to the federal government (and the Ninth Amendment specifically disclaims any such implication). Rather, “well regulated” refers to the state of “being in proper, working order.”  In the context of the militia, this would refer to being well organized, trained, and equipped.  Few are claiming that there cannot be any laws governing firearms ownership and use, but those are narrow exceptions to the right guaranteed by the Second Amendment, not something explicitly authorized.

Of course, the Second Amendment was written 226 years ago. Would it be reasonable to make immutable laws now for weapons that will be used in the year 2243?

This argument, of course, could be used to negate any Constitutional right.  With today’s advanced media and information technology, should we simply consider the First Amendment to be dead letter?  With complex forensic evidence and modern psychiatric knowledge that is difficult for ordinary citizens to parse, should we consider the Sixth Amendment right to a jury trial to be archaic? Of course not.  Advancements in firearms technology do not eliminate the core right, and we should expect our judges to be competent enough to protect that right as newer technologies emerge.

Of course, this entire discussion is academic because the Supreme Court has ruled on this issue, and that decision is unlikely to be overturned.  Nevertheless, it is unsettling to see how these misrepresentations of what the Second Amendment actually says continue to have currency.

Owen Courrèges is an attorney living in New Orleans.  He has previously written for Uptown Messenger, the Reason Foundation, and the Lone Star Times.  He is also teaching sections of a Continuing Legal Education (CLE) course, “Gun Law in Louisiana,” on December 15, 2017, in Baton Rouge.

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