Same Argument, Different Day
Over at Glen’s, there’s a debate in comments on what well-regulated means in the second amendment. Well, when I read the second amendment, the phrase ‘well-regulated’ modifies the word ‘militia’ and not the phrase ‘right of the people to keep and bear arms.’ But I’m no English teacher.
March 28th, 2006 at 12:26 pm
I agree SayUncle,
The 2nd Amendment begins with a sub-ordinate clause which is non-restrictive, but is simply explanatory as to why the people have a right to be armed. The second clause: “the right of the people to keep an bear arms shall not be infringed” stands as a complete sentence and is the main or independent clause giving the main idea. The whole complex sentence would be non-sensical grammatically and historically unless “milita” in the sub-ordinate clause agrees with “the people” in the independent clause–and especially if the subordinate clause somehow supposedly restricts the right clearly declared in the independent clause.
In the historical context, “well-regulated” meant a weapon in good repair, having ammunition and one in which the person was proficient. Also the Bill of Rights were “declarative and restrictive clauses” directed to the federal government declaring our rights and restricting the federal government from violating, abridging or infringing on the same. Whatever legal “regulation” is to be done should be left to the “free states” congurent with the wording of teh 2nd and 10th Amendments and in a way that would not infringe on the RIGHT to keep or bear (carry) weapons.
March 28th, 2006 at 1:21 pm
The question is, why bother with a clause that is merely explanatory? There’s no such clause anywhere else in the constitution, as far as I’m aware (although I could be forgetting something).
I’ve heard extensive arguments from both sides, but I think the bottom line is that the phrasing of the 2nd Amendment makes it unclear.
I take two things away from the 2nd: First, that RKBA is an individual right, not a collective one; second, that at least some degree of regulation is allowable, so long as said regulation doesn’t infringe on the greater right.
March 28th, 2006 at 2:13 pm
Justification clauses are a rarity nowadays, but according to Eugene Volokh they were not at all uncommon in the late Eighteenth Century.
March 28th, 2006 at 2:59 pm
tgirsch, glad to see you think RKBA is an individual one.
The question is, why bother with a clause that is merely explanatory? There’s no such clause anywhere else in the constitution, as far as I’m aware (although I could be forgetting something).
I’m not 100% sure, but I think it’s in there because of what was originally in the Virginia Declaration of Rights.
But that does not necessary state that the state can’t infringe of the right to keep and bear arms. So they added that clause and distilled it down to the statement that was introduced in the first session of congress.
But that’s just a guess. Good question, I’ll have to do a bit of digging.
Regarding “some degree of regulation is allowable”, they knew how to set “reasonable” limits on a right, just look at the phrasing on the Fourth. “…Against unreasonable searches and seizures…”, reasonable searches are OK. However, the language in the Second clearly says “shall not be infringed”. One would hope that language was clear enough.
The problem with your interpretation is that I can find plenty of quotes from people who debated the bill of rights before it was ratified, and none of them support anything other than free access by everyone to all arms, especially those that were well suited to fighting in military conflicts. Surely you are not being thrown on the “well regulated” stuff?
The only ”regulation” that I see the government being able to do here is to restrict gun activists that directly infringe on the rights of others, such as recklessly endangering your neighbor by using his house as a backstop.
It took the feds about a hundred years before they passed their first “gun control” law, and that law restricted the hunting in Yellowstone park, and said if the hunters were convicted, then the state had the right to keep the guns. This is my idea of “reasonable” gun control laws. Surely the first 100 gun law free years shows some intent.
March 28th, 2006 at 3:48 pm
Also, I’m told that “regulated” did not mean “governed by rules and laws” but instead meant “equipped”.
It’s a lot easier to equip a soldier when he is already familiar with their tools.
We shouldn’t be using a 20th century definition of an 18th century word.
March 28th, 2006 at 3:51 pm
The original meaning of the word ‘regulated’ as applied to military units can be seen today in the practice of referring to improvised military forces as ‘irregular’.
March 28th, 2006 at 3:53 pm
tgirsch said: “The question is, why bother with a clause that is merely explanatory? There’s no such clause anywhere else in the constitution, as far as I’m aware (although I could be forgetting something).”
The entire preamble to the Constitution is explanatory. And it’s filled with explanatory clauses like “in Order to form a more perfect Union” and “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare”.
March 29th, 2006 at 12:19 pm
Since the Bill of Rights were, according to the wording of the Preamble to the Bill of Rights “declarative” and “restrictive” clauses directed to the Federal Government, any legal regulation would be restricted to it and left to “the several States” and, as was so well-stated by tgirsch, “as long as said regulation doesn’t infringe on the greater right” so obvious in the main or independent clause of the 2nd Amendment sentence.
The 2nd Amendment should be quite clear IF one adheres to the basic rules of English grammar (usually taught by, maybe not learned, by the time opne finishes elementary education, and according to the historical meaning of “militia”. One example would be from a name that is in sporting news these days, George Mason University. George Mason was one of the founders, along with Jefferson, Patrick Henry and Samuel Adams, who insisted on a Bill of Rights. (He also wanted slavery banned then) Referring to this issue he said, “I ask sir, who is the ‘militia’? It is the whole people except for a few public officials.” So the original idea of gun control was that, if at all, it be directed toward public officials to whom DELEGATED POWERS are given by FREE CITIZENS.