Ask any gun enthusiast what the Second Amendment says and the answer will likely be a paraphrased version of, “The right of the people to keep and bear arms shall not be infringed.” But this is only the concluding half of the amendment.
The generally ignored opening clause provides an interesting premise for that conclusive final statement. “A well regulated Militia, being necessary to the security of a free state,” the amendment begins. What does this mean, and why was it included?
The people retain the right to keep and bear arms because a well-regulated militia is necessary to ensure our security and freedom. Restated this way, the focus becomes clear: the Second Amendment was intended to ensure the existence of a citizen militia. If the primary focus were gun ownership, for any of the multitude of reasons we hear today, one of two variations might have been adopted: 1) those reasons would have been included in the opening clause; 2) the militia clause would have been excluded. Including the militia clause, and only the militia clause, limits and defines the purpose of the amendment very specifically.
In fact, our founders thought this so important that they took care to describe Congress’ responsibilities regarding the militia in the body of the Constitution. Article I, Section 8 defines these specific Congressional rights and obligations:
“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 first clause is interesting, as it runs precisely contrary to an argument we hear so often: Our founders enabled citizens to take arms against a government turned tyrannical. Why then is this presumed right of righteous insurrection not mentioned in the Constitution, while the means of employing the militia to suppress insurrection is expressly defined?
The second clause is equally interesting, as Congress is tasked with providing for the arming of the militia. Combine this with the citizens’ right to “keep and bear” arms. This seems to suggest that the militia is to be provided government-owned arms, which they may keep and bear as members of the militia. The presumed inviolable right of the people to personally own guns is nowhere directly expressed, and may not even be implied.
The elaboration on training and discipline is also instructive, as it clearly addresses the Second Amendment requirement that the militia be “well trained.” Insofar as the right to keep and bear arms is secured for the discrete purpose of maintaining a well-trained militia, and Congress retains the responsibility for organization, training and discipline of that militia, Congress clearly holds significant power with respect to defining and restricting the possession and use of firearms.
Obviously, Congress has been negligent in this matter for generations, allowing us to drift far from original intent. Gun enthusiasts will say that the age of the citizen militia has long since passed, rendering the militia clause archaic. I would counter that this nullifies the very purpose of the amendment, thereby rendering it entirely obsolete.
Gun safety advocates argue that the founders knew only muzzle-loading muskets and could not have imagined the dangerous capabilities of modern weaponry. Perhaps, as others have recently suggested, the Second Amendment should be repealed in favor of legislation more appropriate to security and freedom in our modern society.
Robert Hammer is a health care financial analytics manager who has actually read and thought about the Constitution.