Lots of room for interpretation in the Second Amendment but it’s all academic…

Note: a few posts ago I wrote that I wanted to do something on the Second Amendment. Well what follows is something but certainly not a complete analysis.


 

The Second Amendment to the U.S. Constitution (part of what we call the Bill of Rights) is terse and ambiguous in that it seems to connect the right of citizens to keep and bear arms (have guns) with something called the militia.

(I don’t think we are talking the modern phenomenon of self-proclaimed vigilantes running around in camouflage looking like a cross between GI Joe and a deer hunter.)

Well except the late Justice Antonin Scalia did not see it that way and the conservative majority of the U.S. Supreme Court agreed — citizens have a constitutional right to have guns for their own use irrespective of military service, it concluded.

So really for all intents and purposes that pretty well settles it unless a future court decides otherwise, and the high court does not like to reverse its own rulings, rather it prefers to follow the principle of stare decisis, going by legal precedent (what has been decided in the past), I guess to avoid uncertainty and promote trust in the law — even though on occasions it has, such as Brown v the Board of Education when it decided that separate is not equal in public services and accommodations, in the landmark civil rights case, thus overturning a ruling some 56 years previous.

I’ve been trying to research the Second Amendment but my work life and other things have impeded that. But I know the confusion in part comes in by the outdated language and the weird syntax and punctuation and even the strange choice of capitalization of the one-sentence amendment. I think it is correct to say that the more modern rules of English grammar were either not in effect or universal at the time of our forefathers. And today those modern rules seem to be fading with the use of the internet and tweets and the lack of emphasis on grammar in our schools — but like I often note in my blogs, that is another subject.

To further confuse matters, there are various versions of the Second Amendment with slightly different punctuation — such as the one used for ratification and the final official one approved by congress. And that leads to confusion. I think that in itself proves the value of universal rules and the correct usage in grammar (something I strive for but don’t always attain myself). The official version of the Second Amendment follows:

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. 

Now at first glance I’d have to say there is some connection with serving in a militia (a kind of self-defense force) with the right to keep and bear arms. But if I understand it correctly the high court majority felt that the first part of the sentence was nothing more than words — a “prefatory clause” they called it — or that even if it did express the need for a militia, the important part of the amendment is what it called the “operative clause”, the right of the people to keep and bear arms. I have to ask: does people really mean individuals or the plural like in the people of a state or nation? But of course this is all academic. The high court has spoken; we all have a right to have guns.

But to the chagrin of some ardent all-or-nothing gun enthusiasts the high court did hold that there can be some restrictions.

A primary concern at the time of the writing of the amendment was the role of local or state militias as opposed to that of a standing federal army. Some did not even want a regular federal army. It would take a historian to figure it all out really, or at least supreme court justices reading a lot of history (of course I guess that is what they do).

One book I am reading says that there just was not much of a public record of what the authors of the Second Amendment or those who voted for it thought about the individual right to have guns. Most of the discussion seemed to center around the role of the militia. However, in some proposed drafts or some state bills of rights, the individual’s right was protected.

As to my own opinion or feeling: I have come to the conclusion that individuals in the U.S. do have what appears to be a unique guaranteed right to keep and bear arms with some reasonable restrictions, still not clearly defined by the high court.

And I somewhat reluctantly agree with gun enthusiasts that if you get too carried away with restrictions then the right to keep and bear arms is a little empty.

Just before I began to write this post (actually several days ago) I read about another wild shooting, this time in Maryland. Several people were killed and others wounded. And of course we are just coming off the worst gun massacre in our history in Las Vegas a few weeks ago. And of course, especially in the inner cities, we have constant gun violence.

We have a problem in this country with the free flow of weapons and the phenomenon of apparently mentally deranged people wanting to make a name for themselves in this era of social media and instant mass communication. They want to go out in a blaze of glory (well what they think is glory but is really infamy).

While we cannot stop all of these deranged people we can do something to stem the free flow of weapons even if it approaches infringement on our right to have guns.

Who can think living in a society with the bullets flying is a good idea?

On the other hand, it can be comforting to know that each and every one of us does have a right to protect ourselves, even though not all of ourselves are going to take advantage of that due to personal considerations or interests.

I had wanted to do a more thorough presentation on the subject but even though the Second Amendment is only one sentence the subject is rather complex.

However, for the time, I remain at least a nominal supporter of the Second Amendment and the right to keep and bear arms.

p.s.

And about the militia. I think history shows that in the context of the Constitution we are talking of a state-organized military type unit, which in modern times is our National Guard, which each state has but which can be federalized when the need arises.

I personally don’t believe that the National Guard should be used for foreign engagements except in extreme emergencies when all qualified citizens might be subject to a military draft. But that is of course another subject.

 

 

 

 

 

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