THE RIGHT TO BEAR ARMS

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“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.” There are very few passages in American history more hotly contested, or which evoke more emotion, than the 2nd Amendment. The problem is that most people start with their preferred conclusion, then work backwards to interpret the Amendment in support of that conclusion. This has NEVER been proper the way to conduct research. ********** I am going to approach the problem in a different way. Not by trying to support a pre-determined conclusion, but rather by trying to find the truth, no matter the outcome. The ongoing debate is whether the amendment protects the right of private individuals to keep and bear arms, or whether it instead protects a right only through regulated militias, and this all depends on interpretation. Here is the 2nd Amendment, grammatically changed to reflect each of the two views: 1. A well regulated Militia is necessary to the security of a free State, and the right of the people to keep and bear Arms shall not be infringed. 2. People have the right to keep and bear arms in service of a well-regulated militia, which is necessary to the security of a free state. I can see that either interpretation could be considered correct, depending on grammar and punctuation, so I researched other Amendments for clues to try to determine a constructive pattern which might yield an answer. (Legal Construction is the process by which the meaning of an ambiguous provision of a statute, written document, or oral agreement is determined). I can find neither the kind of ambiguities contained in the 2nd Amendment, nor any constructive clues related to to clarify the issue. It is truly Frustrating. It seems to me that since we can’t ask the author(s) what they meant, we are at an impasse, and the only thing to do is to ignore these conflicting interpretations and try to determine the intent and spirit utilized in the Amendment’s creation. Years ago, when I was learning the practice of law, I was taught that when the interpretation of a law is difficult or impossible, one should try to determine the intent of the lawmakers. James Madison proposed the 2nd Amendment in 1791, and any research as to his intent has yielded no definitive answers, so now what one might do? I decided to try to determine intent contextually, based on history, the state of the nation and the political climate as they existed at that time. Back then, America was a frontier nation and an agrarian society, and it's people had a passion for independence. Your average white male owned firearm(s) for a number of reasons. Perhaps hunting, to be of service in defense of one’s family or community against marauders or criminals, and just maybe, to join others in defense of his new country. Firearms were quite simply a necessary part of life in frontier America. In 1791, weapons were not considered anything but tools to be used for good and honorable purposes. There was no such thing as school or workplace shootings, or the kind of senseless mass murders that are all too common today. The Texas Clock Tower shooting at the University of Texas in 1966 is recognized as the first mass shooting in history. This occurred some 170 years after the 2nd Amendment, and even in 1966, nobody foresaw the violent world in which we now live, or the types of weapons now available. As such, we cannot assume that the authors of the 2nd Amendment intended to limit that which was inconceivable in the hundreds of years after their death. An interesting fact is that in Early America, some private citizens actually owned cannons: they were called privateers. Privateers were ships owned by private citizens that preyed upon ships of foreign countries, primarily the British, and the U.S. government legally allowed these privateers to operate without being prosecuted for piracy. These privateers were not a part of the U.S. Navy, but like all ships of war, they were armed with cannons. The cannons were not government owned, they were private property. At the time of the 2nd Amendment, anyone who could afford a cannon could own one, without any kind of restriction. On May 8, 1792, a year AFTER the 2nd Amendment, Congress passed the Militia Act, requiring that every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age eighteen years, and under the age of forty-five years, be enrolled in the militia. Other acts would soon follow. The Efficiency in Militia Act of 1903 is still in effect today, and it repealed and superseded all earlier Militia Acts. It described the two classes of militias within the United States: Organized militia – consisting of State Defense Forces, the National Guard and Naval Militia. Unorganized militia – Every able-bodied man of at least 17 and under 45 years of age, who is not a member of the State Defense Forces, National Guard, or Naval Militia. So, even if you argue that the Amendment only applies to well regulated militias, the Militia Act of 1903 decreed that everyone in the military and every able-bodied man in America between the ages of 17 and 44 is, by definition, a member of a regulated militia, and is therefore entitled to the protections afforded by the 2nd Amendment. In a 2010 decision, the Supreme Court considered the Second Amendment’s prefatory clause, "[a] well regulated Militia, being necessary to the security of a free State," and determined that while this clause announces a purpose for recognizing an individual right to keep and bear arms, it does not limit the operative clause. It seems that at least for now, the law of the land is “The right of the people to keep and bear Arms shall not be infringed.” ********** As such, I have no choice but to come to the conclusion that the intent of the 2nd Amendment was that there be no infringement upon people’s rights to keep and bear arms. To that end, and carrying it to its logical conclusion, I believe that any law, rule, code or regulation that limits the ownership or carrying of weapons is unconstitutional. Yes, I understand that this means that knives, spears, automatic weapons, sawed-off shotguns, silencers, large-capacity magazines or anything and everything that a person might carry for his defense, or takes in his hands for a weapon, is explicitly allowed by law, and I know exactly how dangerous this might be. Despite this danger, the law is the law until it is changed. Some people argue that the Constitution should not be subject to interpretation, that it should be read literally. Others argue that it should be a fluid document that evolves and changes as does our society. I would argue that the framers already took this argument into account. They determined the Constitution could be changed at any time, and they set forth the rules to do so. In summation, I believe the only way to Constitutionally enact and pass ANY gun law in the United States is by Amending the U.S. Constitution and the 2nd Amendment. Until that is done, I believe that any law that restricts Americans from owning or bearing weapons is unconstitutional. ********** Having said all of this, there just might be a lawful way for our government to disarm Americans. A new, liberal Supreme court could re-interpret the 2nd Amendment to mean that only militia members are covered, which would mean that only people in the Military and able-bodied men between 17 and 44 are so protected. Congress could then amend the Militia Act of 1903 declaring that there is no longer an Unorganized Militia, which would allow only the U.S. military to have weapons. This possibility alone might be enough to keep the Supreme Court from buying into the whole militia argument. Isn’t this ultimately EXACTLY what the 2nd Amendment was designed to protect against... an armed government and an unarmed citizenry?