A Citizen’s 2nd Amendment Fantasy

By Merrill Ring 

The aim here is to produce an argument that the 2nd amendment is not operative in the modern world and that hence it does not establish the right of American citizens to own weapons.  It does not follow that there is no such right but that if there is it is not the 2nd amendment that provides it.

I am not well versed on the arguments – I’m not a legal scholar at all - employed in the Supreme Court cases on the 2nd amendment or on the argumentation of legal scholars about the topic (though I am not totally ignorant about that.) Hence, I entitle this piece a fantasy, a citizen’s fantasy.  What I have to say is what I think should be and should have been said about the meaning of the 2nd amendment: whether anyone has actually so argued is not the point here.

What does the 2nd say?  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.

Ignoring the final comma (whose existence has been an issue), the 2nd has the structure ‘This being so, such and such is the consequence’.  Or : Such and such being necessary to freedom, a right to weapons must be accepted..

While a great deal of attention has been paid to the word “Militia” (and will be paid again shortly), it is crucial to begin an exploration of the meaning of the amendment with the thesis that such a Militia is “necessary to the security of a free State.”

The question that must be asked is ‘Is that true?’  Must we have a militia in order to maintain our freedom? 

Sidebar:  It should be noted here that I understand the reference of “security of a free State” to be to our freedom as an independent nation, to be free from control by other nations.  That is, I do not think that the concern is internal freedom, freedom from an oppressive government of our own.  Others – the groups that today call themselves ‘militias’ and the NRA – will emphatically disagree with this interpretation.  But I shall not argue the point here, only say that the amendment sets out a condition necessary for the maintenance of freedom of the new country from external domination.

This next point is usually overlooked.  Given that at the time of the creation of the Constitution there was no standing army and that in fact the founders were strongly opposed to a standing army, what did they believe must be done for security of a nation’s freedom?  Something less than a standing army.  And so, no matter what the militias of the day may have been like – and they were not well-regulated – the founders, in the first clause of the 2nd amendment, were calling for the creation of a Militia. 

Sidebar: One small issue.  Why does the 2nd say “a Militia” rather than “militias”?  Given that the Constitution was bundling together independent states into a union, the expectation would have been within each of those states the citizenry of the state would constitute a militia.   However, to function as the nation’s security in the place of a standing army, those separate militias would have to have some coordination.  That would make them a Militia.

To be effective, in its purpose, any militia, a Militia,  must be organized, drilled, regulated, etc. in order to be the equivalent of a standing army. 

Further, the founders assumed that all (eligible) citizens - the 2nd does contain the words “the people” - would serve in those bodies, those militias.    

Moreover, since there was no standing army, which means that those militias were not government agencies, there would be no provision for government acquisition and distribution of weapons to members of the Militia – hence all the citizens would be required to purchase and maintain (“keep”) their own weapons as personal property, to be employed when serving in their capacity as militia members (“bear arms”.)

Sidebar:  the NRA and friends, ignoring desperately the fact that the 2nd has to do with service as citizens in sole existing form of military activity mentioned in the Constitution, the Militia, misinterpret the phrase “bear arms”.  It is a military phrase and  has nothing to do with individuals having a right to carry weapons whenever and wherever they want.

As a result of those assumptions, the 2nd amendment was written:  in the absence of a standing army the country requires that well- trained and organized militia forces be created, that those will be composed of all eligible citizens who shall then, in the absence of government provision, be required to own their own weapon for use when on military duty.

The consequence of that aim is then noted in what follows in the 2nd amendment: it is the right of the people to form a militia and to be in the militia and thus they have a right to have weapons: all that is necessary for the freedom of the nation.

However, the world has moved on:  there is in today’s world, whether in this or other nations, no need for militias.  Standing armies are universal (Switzerland?), including the US.  And governments have seen they must provide the weapons needed for the body that today guarantees the security of a free state, namely a standing army.

Sidebar:  The National Guards of the states are government organizations and act as adjuncts of our standing army and so do not qualify as a militia by the terms of the 2nd.

Therefore and this is the bit therefore, one not usually recognized:    therefore, the first clause of the 2nd, namely ‘This being so”, is not true.  Our security is provided by a standing army and so a well-regulated Militia is not necessary to our freedom and in consequence does not exist. 

What, then, happens to the consequent clause of the 2nd, the clause that provides the right of the people to have a weapon as personal property?  It is null and void:  it has no legal standing

The right given by the 2nd would exist only if the weapon is to be used in the service of a well-regulated militia.  There is no such body in the nation today, hence the right as given by the 2nd does not exist.  The condition for having that right is not satisfied in today’s world and so the right pronounced in that amendment is not existent.

Sidebar:  According to the 2nd, citizens have a right to own a weapon only if it is to be used in the Constitutionally recognized form of military activity.  Even if the right given in the 2nd were available today (which it is not), that would not be a right to a weapon for self-defense, for vigilantism against the government, for hunting, for target practice. 

The 2nd and 3rd amendments today are very close kin.  They are pointless in the modern world.

It is necessary to be careful here.  What doesn’t follow from the falsity of the first clause of the 2nd is the falsity of the consequent: it does not follow that citizens have no Constitutional right to have weapons.  To infer that would be to engage in what in logic is a formal fallacy, the fallacy of denying the antecedent.  It is fallacious to argue from the falsity of the antecedent in ‘If he gets the most votes, he will win the election’ to the falsity of the consequent:  as we know only too well, it is entirely possible to not get the most votes and still win the election.

That is, even with there being no constitutionally recognized Militia, it doesn’t follow that there is no Constitutional right to for citizens to own weapons.  Such a right, however, does not derive from the 2nd.

I do not think – with all the attention having been focused on the 2nd – that anyone has attempted to put together a case for using the 9th – “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” – and the 14th – “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” – as a justification for the owning of weapons by citizens of the US.   

Given the widespread possession of guns by people when the Constitution was written and their importance for self-defense and for hunting at that time, it seems quite clear that the right to own a weapon for say self-defense was one of those unenumerated in the Constitution and that the 14th made sure that the privilege of owning a gun was to be maintained in the face of action by the states.

Of course, the NRA and friends would not like that line of justification and would not like it for two reasons. 

First, they want gun possession to be so important that it warrants a specific amendment in the Bill of Rights and was not recognized as merely another right to be protected.  Moreover, the absence of the phrase “shall not be infringed”, which was included in the 2nd but has no force in reading the 9th and the 14th will make them quite unhappy since the prohibition against infringement is the justification used by NRA and friends for not having any restrictions on guns at all (no checks, open carry, multiple weapons, any kind of weapon.)

Using the 9th and the 14th to defend rights to gun ownership would permit legislative action to significantly restrict gun ownership, that is, to enable the country to have sensible gun restrictions.

As I said at the outset, this entire line of thought is a fantasy, given the current legal situation. 

But we can always hope and work for the fantasy to come true.

In the meantime, when gun rights advocates talk of the 2nd, it is worth whipping out these points to remind them that the interpretation of the 2nd was done by a biased Supreme Court and that if they want they can use other pieces of the Constitution to enable them to have a right to the ownership of a gun for other than military purposes.