A Right To Bear Arms? Ambiguity in the Second Amendment

June 29, 2014

Latest Thinking, Second Amendment

Do we have a right to bear arms? And if so, what kind of right is this? Well, the second amendment in the American Constitution, of course, 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.”

“We” Americans, then, have a right to bear arms to the extent that we understand this amendment and agree that it has the power to define our rights. Or if this is a “natural right” then everyone should have the right to bear arms, not just us. But first let us focus on the meaning of the amendment here and what it means for Americans. For even if it isn’t a natural right, Americans would have the right because their Bill of Rights gives them the right.

For right wingers and gun rights advocates, this amendment means that individuals have a right to own and possess guns, for their own protection and sport. It is proof that the founders saw gun possession as a fundamental and perhaps even natural right. This right comes just after freedom of speech and religion in the first amendment. It is of the same level of importance and comes before protection from search and seizure and trial by jury, other rights listed in the Bill of Rights. It is an individual right. Just as the right to free speech and religion talks about “the right of the people” so too this amendment talks about the right of the people, meaning an individual right.

But, as anyone who has read or thought about this the amendment and its language realizes, the issue is more complex. For the language of the amendment is not transparent at all. The fact that it is not transparent raises complex interpretive problems leading to disputes on the amendment’s meaning and intention. And ultimately what is a debate over the nature of a core social value and definition of rights boils down to a debate about language, history and interpretation. So what else is new?

Unfortunately or fortunately, depending on your perspective, the amendment doesn’t just say “the people have a right to keep and bear arms.” That would have been a much clearer and more straightforward way to give individuals a right to own guns. Instead, the amendment prefaces the right to bear arms with a statement about the need of a free State to have a well regulated Militia. Why is that?

This is the horns of our interpretive dilemma and debate over what the amendment means. Before looking at historical facts to try to interpret this amendment, let us look at the language by itself and see what sense we can make of it. One of our supreme court justices (Justice Antonin Scalia, A Matter of Interpretation) thinks we can interpret the Constitution just by looking at its language and not looking at historical context to interpret language. Let’s see if he is correct in this case.

Here again is the language of the second amendment.

“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.”

Why does the language of the amendment link the “right of the people to keep and bear arms” with the need for a “free State” to have a well regulated militia? One way to read the amendment is as follows: “Since” a state needs a well-regulated militia, for its security, that is why the people’s right to bear arms shall not be infringed. In this reading, the language of the amendment makes the right to bear arms tied to and dependent on the need to support the State with a well-regulated militia.

Bearing arms is thus tied in some way to the need for a militia. The language of “bear arms” underscores the association of this amendment with the idea of military defense. “Bearing arms” in the founding is usually associated with the idea of military defense, as Akhil Reed Adams, has pointed out in his America’s Constitution: A Biography, 322-323. One can find numerous examples of how “bearing arms” refers to a military context in founding documents such as The Federalist Papers.

If this amendment was simply justifying a defense of my individual right to possess and own guns, why add any language about the militia at all? It is a good question and one that bears scrutiny.

One possibility is that the right to bear arms is derived from or dependent on the need for protection of the state. On this interpretation, there is not some individual right to bear arms separate from the need to protect the state. And thus the ownership of guns is tied to that purpose particularly. If that is so, then one could argue that the use of guns should be restricted to military purposes.

Some modern interpretations of the amendment have leaned towards this interpretation. They say that the amendment grants “the people” collectively, and not individuals as individuals, the right to own guns for the purposes of State security. On this view, since the State is created in part for protection of individuals there is a right for “the people” to bear arms in defense of themselves. But there is no individual right to bear arms, apart from this purpose to defend the State.

Champions of gun control would like to read the amendment this way and declare that gun ownership should not be for sport or personal protection but linked only to common defense of the state. Going further, you can also argue that the State can therefore control the right to bear arms since the purpose of the amendment is to protect the State’s right to defend itself. The State has the right, not individuals.

But there is another ambiguity in the language of the amendment concerning the purpose of the militias. What does the amendment mean when it says that well regulated militias are “necessary to the security of a free State.”

There are two ways of understanding this statement. Most probable is that the amendment is referring to militias that were intended to protect each state in the Union. In other words, the amendment is recognizing that though the Constitution grants the Federal government the right to create a permanent army, the States themselves still had the right to militias for their own protection. Indeed, the Constitution assumes that the individual States still retained quite a bit of sovereign power and thus had a right to protect themselves against aggressor states or foreign invaders, even though the newly formed Federal Government had the responsibility to defend the collective states and police conflicts between states. The States in other words retained some of their rights of independence that had existed before the Constitution.

This would make some sense reading the powers granted to the Federal Government in the Constitution:

Article 1, Section 8 of the ratified Constitution had already outlined the power of Congress:

  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • 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;

As is evident here, the Constitution envisions that Congress has the power to create an army with money appropriated through taxes for up to two years. An “army” which was made up of professional soldiers differed from a militia which was drawn from the people on an as needed basis (see Amar, Bill of Rights). The Constitution itself, even before the Bill of Rights was ratified, envisions that Congress has the power to call forth the “the Militia” to execute the laws of the Union, suppress Insurrections and repel invasions.” The Constitution presupposes that the States have militias and that Congress can mobilize the militias for broader Federal interests.

To tie the Constitution and Second Amendment together, then, the two seem to be saying that 1) the Federal Government presupposes the existence of the State militias that can be mobilized for Federal purposes and 2) the need for a well-regulated militia requires that the people’s right to bear arms not be infringed. Thus if the Federal government can take away people’s arms, the states cannot have well-regulated militias.

The second amendment, therefore, could be construed as a state right rather than an individual right. The protection is offered to the people by giving States the right to arm their citizens and create militias. On this reading, the protection is collective by offering individuals protections through their States. We know in fact that there was deep concern during the Debates on the Federal Constitution about the liquidation of State powers. One could argue that the second amendment was intended to protect this State right to create militias and arm their citizens. This could make some sense of the language.

Yet while the debates preceding the ratification of the Constitution often focused on the tension between State and Federal powers, the Bill of Rights seems aimed at ensuring individual rights. Freedom of speech and religion, search and seizure, trial by jury, are all rights of individuals. And “the right of the people” though phrased as a right of a collective is used also in other amendments to clearly mean an individual right, as in Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Still, the fact that the second amendment does not start with “the right of the people to bear arms” but with a preamble about a “well regulated Militia” seems to tie the individual right to the need for the States to have a capability of protecting themselves. My right to bear a gun is tied to the State’s purpose of creating security for me. Since the founders envisioned the purpose of the State to be partially for security, and to protect individual rights, then the mechanisms of ensuring that security have to be protected.

The language of the amendment therefore is interestingly ambiguous when read in the context of the Bill of Rights as a whole or the Constitution as a whole. By looking at language alone it is difficult to say what the “intent” or “meaning” of the amendment is or was intended to be. Justice Scalia is clearly wrong when he says we can interpret meaning of the founder’s language without looking at history. This amendment in its language is ambiguous. And perhaps that ambiguity was part of the intent.


(Note: Originally published 12/2009)


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