The 2nd Amendment: What Does It Really Mean?

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.

On the surface, these words, which constitute the 2nd Amendment to the Constitution of the United States, seem simple enough. On closer look, however, the meaning becomes less clear. Do these words guarantee a right of militias, as the 1st clause seems to suggest, or a right of the people as the 2nd clause seems to say?

That question is at the heart of the argument between gun supporters and groups such as the National Rifle Association (NRA) and gun controllers and their groups like the Brady Center to Prevent Gun Violence. Unfortunately, the gun issue has once again exploded to the front of the American agenda in the wake of the tragic theater shooting in Colorado last week which resulted in 12 deaths, the youngest a 6-year-old girl.

So how do you go about trying to determine the truth of the 2nd Amendment? Well, it might prove instructive to begin with what is known about the thought processes of those who framed the Constitution and the First 10 Amendments, known collectively as the Bill of Rights.

Most historians agree that the 1st Americans viewed the idea of the right to bear arms for these purposes:

• deterring tyrannical government
• repelling invasion
• suppressing insurrection
• facilitating a natural right of self-defense
• participating in law enforcement
• enabling the people to organize a militia system

If you agree with that list, then it seems the Founding Fathers were looking at collective, not individual, rights when it came to bearing arms, which is, by very definition of the phrase, related more to military terminology than hunting or gun collecting. That view was born out by Alexander Hamilton, who in 1788 said: "If circumstances should at any time oblige the government to form any army of any magnitude, that army can never be formidable to the liberties of people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens."

So where did this idea of Daniel Boone gunning bears, not Minutemen bearing guns come from? You need look no farther than the ethos of the frontier and the related American myth of the Wild West, with men like Davy Crockett and Wyatt Earp credited with dispensing justice at the end of a single-bore rifle or a six-shooter. Geographically, the strongest anti-gun restriction power resides in the South and the West, which is not surprising given the history of the gun in their settlement.

In fact, the passage of history raises a large impediment to understanding exactly what the Framers had in mind when they wrote the documents which created our nation. I can't imagine that Thomas Jefferson or James Madison, despite all their wisdom, could envision an assault rifle that could hold a 100-round clip and fire more than 60 shots a minute or an internet where you could somewhat anonymously purchase 6,000 rounds of ammunition.

Noted constitutional scholar and Yale professor Akhil Reed Amar agrees that elapsed time and ensuing change pose problems with Constitutional interpretations. "What makes the 2nd Amendment so slippery today is that the legal and social structure on which the amendment is built no longer exist," Amar says. "The amendment's syntax seems odd because modern readers persistently misread the words 'militia' and 'people,' imposing 20th Century assumptions on an 18th Century text."

So after his years of study, how does Amar see the issue?

"Virtually no one today is seriously arguing to take away all guns from homes. To do so would be a nightmare for anyone who cares about liberty and privacy," Amar says. "Instead, most proposals seek to regulate rather than prohibit - limiting the amount and type of ammunition, restricting the number of guns one can buy in a week, and so on."

"Requiring the registration of guns and even licenses with practical and book tests, sends some gun lovers up the wall - it is a 1st step toward confiscation they predict in dire tones. But this is hard to take seriously," he adds. "The authors of the 2nd Amendment. after all, were perfectly comfortable knowing that the government would know who had the guns - every voter - and also perfectly comfortable requring those who owned the guns to be properly trained and monitored for their use."

"Realistic gun control today may not be exactly what the Framers had in mind when they said that the armed citizenry should be well regulated. But - at least in a world that is so distant from the Founders - it's close enough," Amar notes.

OK. So that's how Amar feels. But he is only a legal scholar. What does the Supreme Court - the ultimate legal authority - have to say. Well, again we find opinion divided.

In 1990, ex-Chief Justice Warren Burger said:

"Americans also have the right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns any more than anyone would challenge the right to keep fishing rods and other equipment for fishing - or to own automobiles. To 'keep and bear arms' for hunting today is essentially a recreational activity and not an imperative of survival as it was 200 years ago."

"Saturday night specials and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles," Burger added.

But what about today's Supreme Court. In its last major case on the issue, the court, by a 5-4 vote, ruled against handgun laws adopted by the District of Columbia, a decision hailed by the pro-gun forces as the constitutionally correct one.

Writing for the majority, Justice Antonin Scalia stated:

"Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right. This contrasts markedly with the phrase 'the militia' in the prefatory clause. The 'militia' in colonial America consisted of a subset of 'the people' - those who were male, able bodied, and within a certain age range."

"Reading the 2nd Amendment as protecting only the right to 'keep and bear arms' in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as 'the people'

However, writing in dissent, Justice John Paul Stevens countered by saying:

"The Amendment's text does justify a different limitation: the 'right to keep and bear arms' protects only the right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase 'bear arms' to encompass civilian possession and use, they could have done so by the addition of the phrases such as 'for defense of themselves.'"

So with even the Supreme Court divided in its opinion, where does that leave us in our search to answer our initial question - what is the real truth of the 2nd Amendment? While an ultimate answer will prove difficult, no one should be able to stifle discussion. We need a free-ranging and vigorous examination of all the issues surrounding weapons and their improper uses. I found it unconscionable that there was a movement immediately after the Aurora killings to stifle such a debate. It's not the right time, it was said. Well, to anyone who believes that, I respond, if not now, when? Silence is not an option. That will never solve the issue of gun violence in America. Only reasonable talking followed by appropriate action can do that. Let's start now. It's a matter of life and death. 

Tales, Tidbits, and Tips

We all have our own opinions on the gun issue. You have yours. I have mine. Sometimes we can articulate our ideas clearly. Sometimes, not so much. And, every so often, someone else captures exactly what we are thinking and feeling better than we ever could. That happened to me last Monday with John Stewart's segment on gun control. Click here to see what The Daily Show host had to say.