On the Second Amendment
Amendment II: 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.
I do not claim to know what was in the minds of our founding fathers when they approved this amendment to the Constitution. I don’t know if this is the way Madison originally penned it, or if it was altered in committee during the process of ratification. I will leave it for others to peruse the Federalist Papers and other writings of the period; I address only the amendment as adopted. This is what the courts have to work with; this must serve to guide their deliberations into the question of who shall be allowed to carry which weapons, and under what circumstances they may be carried.
The amendment consists of a dependent clause: A well regulated militia, being necessary to the security of a free state, and an independent clause: the right of the people to keep and bear arms, shall not be infringed. If we ignore the unnecessary and inappropriate commas, the primary sticking point, as I understand it, is the relevance of the dependent clause: Does it substantially alter the meaning of the independent clause? Or is it merely a stylistic flourish?
I choose not to argue for either position in this grand debate; I will only suggest that before you make up your mind about the function of the dependent clause of the Second Amendment, you consider the following questions:
What would constitute a “well-regulated militia”? Would the self-proclaimed Posse Comitatus, so prominent in the news during the 1970s and ‘80s, or the Branch Davidians of the 1990s qualify?
Does the term, “people”, refer to all members of our society, or only to citizens? – only to men? – only able bodied men? Are toddlers and preschoolers people? How about felons and prison inmates? – or the mentally deficient? – or paranoid schizophrenics? Would it infringe upon a toddler’s Second Amendment rights to relieve him of the loaded pistol he had tucked into his diaper?
Does the term, “arms” refer only to weapons available in eighteenth century America? Or would it include such innovations as repeating rifles and concealable side-arms? Perhaps machine guns, howitzers, Sherman tanks, submarines, aircraft carriers and stealth bombers might also be included. Then, how about cruise missiles and nuclear warheads?
Does banning firearms on commercial aircraft violate a traveler’s rights? Would a prohibition of firearms in a church infringe upon the rights of a worshiper? Could a teacher deny her students their right to pack iron? How about a prison warden? Bear in mind, Jeffrey Dahmer would be alive today, had his right to keep and bear arms not been so egregiously infringed.
And remember folks, nuclear warheads don’t vaporize people; people vaporize people. (Sorry, I couldn’t resist that.)
As I write this, the constitutionality of a law banning hand guns in the District of Columbia is under consideration by the Supreme Court. The point of contention in this case is whether the ban unreasonably infringes on the right of the people to bear arms. Just to be sure, I went back and reread the Second Amendment. It may be due to my failing eyesight, but nowhere could I find the phrase unreasonably infringes. Nonetheless, the Court has chosen to deliberate the case as though the amendment, as approved and adopted, did say . . . the right of the people to keep and bear arms shall not be unreasonably infringed.
Do you suppose this is what politicians mean when they decry judicial activism?