A better version of the Second Amendment

Well, I just learned something from Wikipedia I didn’t know before, but should have known — given all that time I spent studying that period in college.

I’ve always found the punctuation (and capitalization, but hey, it was the 18th century) of the Second Amendment problematic to the point that it was little better than gibberish. That’s because I was looking at the version that Congress passed:

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.

That comma after “Militia” just destroyed any clear meaning that may have been intended.

But now I’ve seen the version that was ratified by the states and authenticated by Thomas Jefferson in his capacity as secretary of state:

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.

Much better. It actually seems to have been composed by someone whose first language is English. And it certainly makes the role of the militia in the rationale of amendment much clearer.

Speaking of militias… I have another post I want to write on that subject. I’ll see if I can get to it before I need to leave this evening…

34 thoughts on “A better version of the Second Amendment

  1. Kathryn Fenner

    Sure, Bryan, “the people” means the people mentioned elsewhere, but what do you make of the modifying clause? Do you just ignore it? That would be poor construction.

    Reply
    1. Bryan Caskey

      You certainly don’t ignore any part of it; you analyze it. And that’s the fun part for us lawyers, right?

      The prefatory (which you incorrectly refer to as modifying) clause announces a purpose, but it does not limit or expand the scope of the operative part. It’s the preface. It does not limit, expand, or modify the operative clause. It establishes a logical connection between a purpose and a command.

      Purpose: We need to keep the ability to have a people’s militia ready to defend liberty.

      Command: The right to bear arms shall not be infringed.

      The entire purpose of the amendment is to prevent Congress from disarming the people, which would thereby disarm a citizens militia. George Mason (who helped draft it) said that all people are members of the militia. Thomas Jefferson also said that, by the way.

      To expand on my first comment: The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body (like a militia).

      If you don’t like what The Constitution says, that’s fine. There’s a method for changing it. Call your Congressman.

      Reply
      1. Kathryn Fenner

        Bryan, the preface is there to modify, to give meaning. It isn’t just like “it’s great to be here” language. It is substantively related to the primary statement.

        Unless you have drunk the NRA Kool Aid….

        Reply
        1. Bryan Caskey

          The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

          Although the use of a prefatory introduction is not common in the Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

          It’s a purpose and a command.

          Oh, and that’s not the NRA. That’s SCOTUS.

          Reply
      2. tavis micklash

        You can have reasonable restrictions though. Much like some speech not being protected. I.E. not yelling fire in a crowded theater.

        I’m not a lawyer so honestly so I can’t follow a lot of your response.

        I just don’t view proper background checks and limited magazine sizes as am infringement on the Bill of Rights.

        The moderate in me must point out that the “militia” argument for gun control is garbage. You can’t pick and choose amendments that you want to read as broadly as possible.

        The framers of the constitution never foresaw blogs or drone peeking through windows. Doesn’t mean that they aren’t subject to the Bill of Rights.

        I also support the right for people to buy and own assault rifles. Bang away. Just at 10 shots at a time and you ahve to do the proper background checks. Even if you buy them at the Jamil Shrine Gun Show.

        Reply
        1. Bryan Caskey

          Tavis. Let’s keep this common-sense. Forget the legal part of it. What makes 10 the magic number for magazine capacity?

          The time it takes to switch mags is negligible. Who is helped by this? What common-sense issue is resolved?

          Reply
          1. Bryan Caskey

            Also, I support background checks. I would support a law requiring background checks for private sales (the gun show loophole) if there was a system that was easy, free, and simple. That was in my blog today, though.

            Reply
          2. tavis micklash

            “The time it takes to switch mags is negligible. Who is helped by this? What common-sense issue is resolved?”

            I disagree. Its NOT negligible. In the heat of battle even simple tasks can get fumbled.

            Its one thing at the range or at your house. Its another thing with your adrenaline pumping.

            Anytime you enter a new variable there is an increased chance for failure.

            It also slows down the rate of fire. magazine swaps do take time. This is extra time for police to get there, the assailant to get second thoughts, or victims to escape.

            The has some benefit with out putting unreal restrictions on collectors and target shooters.

            Sure there will be a ton of clips grandfathered in or squirreled away. Over time the availability will decrease though. Over the long term this will minimize casulties in a mass shooting.

            Reply
  2. Steve Gordy

    While I’m not certain on this point, I’ve seen the suggestion elsewhere that the use of the terms “bear arms” would suggest service in the militia as a condition of said right. That’s the interpretation that would probably stand up to scrutiny under English common law.

    Reply
    1. Bryan Caskey

      Why would it be conditioned? At the time of the founding of the USA (as now), to “bear” meant to “carry.”

      In many instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house” — what he called the law of “self preservation.” Thus the right of self-defence [is] guaranteed by the [Ohio] constitution”).

      But to your point regarding English common law, I guess that’s why subjects in England can’t have arms.

      Reply
  3. Kathryn Fenner

    Anybody else having trouble getting here sometimes? Sometimes I can only pull up the old site, even with refreshes and clearing History…

    Reply
        1. Kathryn Fenner

          Also, a very annoying window pops up asking me to sign up to Follow Brad Warthen, and it blocks my comment window. I tried signing up, and it says you aren’t set up for this. Arrrgggh

          Reply
  4. Scout

    Why on Earth did they put that extra comma in the version for Congress? How odd! It definitely makes much more sense without it. I am struck by the implications of the modifying phrase “well regulated”. The free-for-all we’ve got going on with gun ownership right now does not comport with the phrase “well regulated” to me, under any of the possible meanings it may have (of which I discovered there are several: http://www.guncite.com/gc2ndmea.html) .

    Reply
  5. Tom Stickler

    Perhaps we can ask Lynne Truss, author of “Eats, Shoots & Leaves” to analyze (or analyse, as she would insist) this discrepancy.

    Reply
  6. Bryan Caskey

    Don’t worry Kathryn, you’re in the militia, too. I know the founders didn’t have women serve in the militia, but I’m much more liberal than they are on that issue. Also, from a woman’s perspective, I would think you would be in favor of smaller, weaker women being able to equalize a power struggle in a confrontation with a man.

    I honestly don’t know why feminists aren’t “all in” on guns. Nothing says “liberated woman” like a woman who can shoot the fleas off a dog at a 100 yards.

    Reply
    1. Kathryn Fenner

      Again, I’d have to carry the darn gun arou d. Heck, I don’t even carry my phone around. I put my faith idogs.

      Statistically, women are more likely to be hurt in a home with a gun, than in a home without one. Maybe that’s why.

      And who says girls can’t do math?

      Reply
  7. Brad Warthen Post author

    I really must get around to writing that post about how the War of 1812 showed us how inadequate the Jeffersonian ideal of a nonprofessional militia really was…

    Reply
  8. Brad Warthen Post author

    The battle of New Orleans was a bit of an anomaly — one of the few land battles we WON.

    Our most notable success was at sea, in several single-frigate-versus-single-frigate actions. It really stunned the Royal Navy. They were accustomed to always winning such (more or less) even contests against the French, the other superpower of the day…

    Reply
  9. Steven Davis II

    With this new blog site, it appears the longer the thread goes, the narrower it gets. I wonder if it went to 7-8 levels if it’d go to one character per line.

    L
    i
    k
    e

    t
    h
    i
    s
    .

    Reply
  10. Mark Stewart

    I appreciate Tavis’ taking a pragmatic, nondidactic approach to this serious problem. It isn’t about gun control exactly; it is really a question of outlook. Support of unencumbered gun rights is really just a capitulation to fear. It feels, to me, like the last 10 days could have taken place in the 1850′s. I believe we have heard this viewpoint more than once. But this is different. No one wants to disarm society today; but at the same time, it is clear that gun rights are not unlimited and unfettered – or should not be.

    Reply
    1. tavis micklash

      “I appreciate Tavis’ taking a pragmatic, nondidactic approach to this serious problem”

      I had to look up non didactic in the dictionary.

      ” It feels, to me, like the last 10 days could have taken place in the 1850′s.”

      It could have. Horrific events like this have pretty much always happened. It would have been a states rights issue in the 1850s. even if the feds wanted to propose something good SC would have bucked it on principle.

      ” No one wants to disarm society today; but at the same time, it is clear that gun rights are not unlimited and unfettered – or should not be.”

      That’s not true. Read Mother Jones and you will find TONS of people that want all firearms banned. There are extremes to both sides. This isn’t just republican paranoia here. It is something to be vigilant of.

      Reply

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