THE TRUE MEANING OF THE 2ND AMENDMENT
“… the people are confirmed by the next article in their right to keep and bear the private arms.”
One of the more fascinating, and infuriating, aspects of human beings in civil society is the inclination to invent (or concoct) meanings for things that are obviously incorrect, but which are emotionally attractive or widely persuasive. The 2nd Amendment must be at the top of the list for this treatment, and the sheer variety of ascribed meanings it has been given over the years is nothing short of miraculous. That’s probably because it is the clearest, most succinct, and least subjective; it has no wiggle room. The 2nd Amendment is also the most discussed (argued), placing it exactly opposite of the 9th Amendment, which holds the ignominious and unchallenged distinction of being the most ignored amendment in the Bill of Rights. Indeed, it’s possible the 9th Amendment went completely unnoticed and undiscussed from 1791 until a patronizing 1965 inclusion by Justice Douglas (penumbra, anyone?) and a dignified clarification by Justice Goldberg in Griswold v. Connecticut, and a related echo by Justice Blackmun in Roe v. Wade in 1973. As we will see, the 9th Amendment is probably the most important amendment.
The continued production of incorrect and specious interpretations is harmful and distracting. If society has degenerated to the point that The People cannot own specific guns, or any guns, then the solution is the repeal or modification of the 2nd Amendment, not to allege that it means something other than the plain language with which it is expressed. Unless society follows its written rules, using the meanings of the words as tradition and current practice dictate, there are no rules—just rulers who rule.
It is the very clarity and “no wiggle room” aspect of the 2nd Amendment that is the source of the “interpretation” debate. People who believe that guns should be regulated, banned, restricted, etc., can’t allow the idea that the intention of the 2nd Amendment is to do just what it says, to prevent government from restricting firearms and firearm access to make sure that “… the right of the People to keep and bear arms shall not be infringed.” Even “pro”–2nd Amendment arguments allow interpretations that are incorrect, and therefore result in confusion and contradiction, which cycle incorrectness endlessly. Explaining that rights are not “absolute” in 2012, Supreme Court Justice Antonin Scalia famously opined that “arms” necessarily meant only those weapons that can be carried by people, concluding with the patently false statement that cannons were not understood to be “arms” in 1791 (despite the etymology from Latin “arma” meaning “weapons” and 1755 definition in Dr. Johnson’s Dictionary as “ weapons of offence, or armour of defence”).
On May 26, 1972, President Richard Nixon and Soviet General Secretary Leonid Brezhnev signed an agreement known as SALT 1 (Strategic Arms Limitation Talks) to begin addressing nuclear weapons, missile defense systems, etc. On June 17, 1979, President Jimmy Carter and Brezhnev signed the SALT II Treaty. SALT II limited the total of both nations’ nuclear forces to 2,250 delivery vehicles and placed a variety of other restrictions on deployed strategic nuclear forces, including MIRVs. There is nothing in the archives or public records from the United States or Russian sides to indicate that anyone understood these talks to cover ONLY nuclear missiles and anti-missile defense systems that could be carried by people.
There can be no resolution to the issue of “gun violence” or gun ownership in the twenty-first century if neither side incorporates the actual 2nd Amendment meaning, and its purpose, in their position. There can only be a battle of straw arguments, frustration, and rising animosity. The meaning and purpose of the amendment is clear, but whether it is still desirable is open to debate.
The wording of the 2nd Amendment explains why the right of the People to keep and bear arms is explicitly stated in the Constitution: because a well-regulated militia is necessary for the security of a free State. No, not the State of Georgia, the “United States of America” State. The State that Antony Blinken is currently secretary of. Even the individual words of the amendment have been misconstrued to mean the exact opposite of what they actually do.
For this essay, it is expedient to use the dissenting opinions of Supreme Court Justices Stevens and Breyer in the District of Columbia v. Heller case in 2008 as representative of the largest “anti”–2nd Amendment cohort. It is necessary to reiterate that in substantial respects, the “pro”–2nd Amendment cohort’s proposed interpretation and arguments are defective as well, following Justice Scalia’s silly example of how rights are not “absolute”. This essay explains the obvious meaning of the 2nd Amendment, the reasons for it, and the logical problems and contradictions of interpretations by Breyer and Stevens et al. Their proposed meaning is internally inconsistent, self-contradictory, and violates basic principles of law. Hopefully, documenting the background of this amendment will help others to avoid making similar errors.
There are a few basic, foundational elements of the Constitution, the Bill of Rights, and general law that need to be highlighted prior to addressing the specifics of the 2nd Amendment. It is primarily these elements that refute most proposed interpretations, both “anti” and “pro”. The substance of the eighteenth-century drafting debates forms a coherent whole narrative if one cares to look.
The Constitution of the United States is the most documented governmental instrument in human history. There is an unbroken chain of continuity from before the Declaration of Independence, to the Articles of Confederation, to the Constitution of 1787, to the Bill of Rights, to almost thirty years of post-ratification rulings and discussion by the original participants. Among the documents are thousands of pages recording the debates in the federal constitutional convention, the state ratifying conventions, the letters between and among the drafters and ratifiers, the arguments for and against it published in various newspapers, and antecedent foundational documents like the state constitutions. There is no doubt about what the text of the Constitution means, nor what the drafters and debaters thought it meant, nor the issues they were trying to address. Many of the same people were involved over that twelve-to-fifteen-year period from Independence to Constitution ratification, and certainly the topics were thoroughly discussed in the states and were a matter of public record.
While the Constitution is clear in almost all aspects, it does require some very basic understanding and application of two legal principles used then and now. The first principle is that the words used should signify something; they should be understood to have force (verba aliquid operari debent—debent intelli uta liquid operantur), so that a word or words cannot be ignored or assigned contrary meanings. The second principle is that any proposed interpretation of a word or phrase must fit the whole document without contradiction or a resulting absurdity, so that if a proposed interpretation of a word or clause renders another part of the document nonsensical, that proposed interpretation cannot be correct. Here are a couple of explanations:
“Is it not a maxim of universal jurisprudence, of reason and common sense, that an instrument or deed of writing shall be so construed as to give validity to all parts of it, if it can be done without involving any absurdity?”
John Steele, North Carolina
“If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage—is entirely without meaning—if such is to be the construction…. Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.
“It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.”
Chief Justice Marshall, Marbury v. Madison 1803
The Constitution was created because the Articles of Confederation failed in so many ways, and it was universally acknowledged that something needed to be done. The first major, radical change was to form the document so that it was between the individual citizens of the country and the federal government directly, and not as a compact between the states. This can plainly be seen in the preamble to the Articles of Confederation (“we the delegates of the states… agree to perpetual union between the states of….”) compared to the preamble to the Constitution...