Amendment Two

As free Englishmen, the American colonists could point to a history in which local yeomen were called upon for defense of their towns and for mutual aid when disasters struck. They were the frontline of homeland security, foreign wars being largely the province of knights, nobility, and conscripted serfs.

When the United States came into being, the inhabitants of the States were concerned with being able to defend themselves from attack by a hostile power to the north -- British Canada. Previous to its absorption by the British Empire, that region, as French Canada, had also been a dangerous enemy. American history courses tend to minimize coverage of that time period.

There was also an enemy to the west. One of the reasons specifically given for the Declaration of Independence was the failure of George III to protect the colonies from Indian attack:

"He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions."

From the time of the Pequot War (1635), through the French and Indian War (1763), and on until almost the beginning of the 20th Century, the frontier was a dangerous place where no man, unarmed, could feel safe.

Finally, after independence had been gained from Great Britain, there was also the danger of interstate warfare : a classic case is the Toledo War, in which the Michigan Militia occupied the City of Toledo, Ohio. Thus the States were unwilling to ratify any document which would take away their rights to maintain a militia. The militia was to be at the service of the State governor, and had traditionally been recruited from the general populace and with officers chosen by the troops themselves.

Article I of the Constitution gives to the Congress specific powers, among which are:

• "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;"

This, however, was not completely satisfactory to some of the more exposed frontier States. It was objected to by several of the States which claimed that it contained no prohibition on Congress disarming the militias, and the Bill of Rights contained a specific amendment which supersedes that portion of Article I :

"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."

In District of Columbia v. Heller, No. 07-290 the Supreme Court held 5-4 that the Second Amendment provided for the personal keeping and bearing of arms, stating in the majority opinion,

"...the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

and in response to part of the minority dissent, which focused on both the preconceived notions of courts in settled case law, and the perceived need by some of the Justices for the SCOTUS to interpret the Constitution in view of current fads and whims, further stated,

"A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different."

While I agree with the conclusion of the Court that the Second Amendment guarantees to the individual the right to keep and bear arms for self-defense and sport, I am dismayed that in all the scholarship the construction of the Amendment itself has been misconstrued.

In every accurate transcription of the Second Amendment, there are three commas. Commas are used to set off appositives, noun phrases which identify or define a preceding noun or noun phrase, and the Second Amendment clearly has two appositives. This was pointed out to me through simple sentence diagramming (remember high school English?). "A well regulated Militia" is defined by the Amendment as both "being necessary to the security of a free State" and also as "the right of the people to keep and bear Arms". The concern of the dissenting States was the possibility that the Congress would refuse to support the State militias. The clear intent of the Amendment is "A well regulated Militia shall not be infringed."

Thus the majority opinion of the Court in District of Columbia v. Heller was correct, but based on a faulty reading of the Amendment text. I believe that the Second Amendment establishes an absolute right of the individual (who is the functional unit of any militia) to keep and bear any weapon, without restraint by Congress, and therefore by extension, without restraint by any governmental body in the United States.

Thus, as per the quote by Thomas Jefferson in the previous post with respect to Amendment One, the government's interest in this matter can only legitimately concern itself with an individual's actions.