Those in favor of gun control often point to the use of the word militia in the second amendment as part of an argument that the second amendment is no longer valid. I want to examine this argument and the actual text of the second amendment.
First, contrary to some opinions, militias still exist, although they may no longer be state funded. Many states have militia units with required drill attendance minimums, uniform standards, and military equipment. Most modern organized militias still require that members purchase their uniforms, equipment, and supplies, just like in the 18th century when the second amendment was written. Anyone who says that militias don’t exist is just plain wrong.
Second, others say that the National Guard is the only “well regulated militia.” This opinion only holds water when we apply the modern view of the word regulated. We live in a regulatory world. Our federal government has dozens of regulatory agencies that regulate every aspect of our lives. In the 18th century, our founding fathers meant trained, efficient, and orderly. Government is definitely not the only organization capable of training.
Third, if we still need militias in modern America depends partly on what you think of their purpose. Some believe that a militia is to help the military when needed to fight foreign forces. Others believe the purpose of a militia is to fight our own government if needed. Still, others believe their purpose is to fight to protect our rights regardless of who they have to fight. This discussion is worth having, but this is not for today’s article.
Finally, we could examine who the militia is. The modern vision of a militia is a group of conspiracy theorists playing army in the woods. That is not how the framers of the Constitution saw the militia. George Mason addressed this question during the Virginia ratification debate.
“I ask, sir, what is the militia? It is the whole people except for a few public officials.”
After the war for independence, many towns and even some of the new states required militia service of all able-bodied white men over the age of majority through a designated cut-off age. Not only were militia members required to keep arms, but many other households were required to keep arms even though there wasn’t a militiaman in the home. In short, the militia was basically every citizen.
So, if you are an able-bodied US Citizen between eighteen and sixty-five, congratulations. You are in the militia. You should have firearms and be trained and ready to use them on short notice. Owning arms is not enough. Constant training is required. Legal protection is an excellent idea too. I recommend Right To Bear Insurance. PewPewTactical named Right To Bear the most affordable carry insurance. Check it out at ProtectWithBear.com.
Now, let us look at the basic text of the second amendment and dissect the sentence as we did in primary school.
“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”
What portion or portions of this make a complete thought? What parts can stand alone as a complete sentence?
The first half, “A well regulated Militia, being necessary to the security of a free state…” though important, is not a complete thought. The founding fathers could have easily made it a complete thought by simply replacing the word “being” with the word “is.” In which case, it would have read ‘A well regulated militia is necessary to the security of a free state.” That simple change would have made any argument about a militia’s need and/or purpose supremely relevant. Our founding fathers had a good grasp of the English language yet chose not to make the first half of the second amendment a declarative complete thought.
The first two commas separate out a dependent clause, “, being necessary to the security of a free state,”. This portion only applies to the first portion, “A well regulated militia.”
The second half of the second amendment is a declarative statement . “the right of the people to keep and bear arms, shall not be infringed”. This portion can stand alone. This is the stance that the US Supreme Court took when striking down a gun ban in Washington D.C. v. Hellar.
“According to the court, the second comma divides the amendment into two clauses: one ‘prefatory’ and the other ‘operative.’ On this reading, the bit about a well-regulated militia is just preliminary throat clearing; the framers don’t really get down to business until they start talking about ‘the right of the people … shall not be infringed,’”
Thomas Jefferson proposed a “corrected” version of the second amendment that only had one comma. His version only included the second comma. This supports the Supreme Court’s findings. Unfortunately, for clarity’s sake, Thomas Jefferson did not make his suggestion until after the proposed amendment had already been sent to the states for ratification because he had been in Paris.
The only grammatical argument that can be made to support restricting gun rights would be if the section between all three commas is one large dependent clause. That would leave “A well regulated militia…shall not be infringed”. This would take us back to the question about the need and purpose of the militia.
Intentional or not, the only declarative portion of the second amendment as it is written is that the right of the people to keep and bear arms shall not be infringed. This is possibly the most cut-and-dry declaration in the United States Constitution, and yet for nearly a hundred years, our government has been infringing on your right to keep and bear arms.