Grey Matter Episode 8: The Second Amendment Part 1: Linguistics

“The Second Amendment Part 1: Linguistics”
by Kaitlin Puccio

The main argument against the imposition of an assault weapons ban is that it infringes on the Second Amendment constitutional right to bear arms. A secondary argument is that an assault weapons ban will not achieve the desired result of fewer mass shootings and other gun crimes because individuals who carry out such acts will get their weapons via illegal means. These two arguments deserve separate but equal scrutiny.

The Second Amendment of the U.S. Constitution states: “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.” This has been interpreted by individuals and the Supreme Court in District of Columbia v. Heller to mean that the Constitution grants an individual right to keep and bear arms outside of a military context—that is, to possess firearms for historically lawful purposes, including self-defense in one’s private home.

To come to its decision, the Court analyzed what the words of the Amendment would have meant at the time the Amendment was written, and separated the entire text into a prefatory clause (A well regulated Militia, being necessary to the security of a free State) and an operative clause (the right of the people to keep and bear Arms, shall not be infringed). The decision was written by Justice Antonin Scalia, a textualist who rejects legislative intent and relies solely on the plain meaning of text as it would have been understood by people at the time the terms were ratified.

There are other methods of interpretation that could apply, such as purposivism, which weighs the purpose of legislative text more heavily than the exact textual terms themselves. Depending on the method of interpretation, the Constitution could be understood in more than one way.

For example, the Second Amendment could be understood differently solely by interpreting the commas differently, as in: “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.” Using an em dash instead of commas shows that “the right of the people to keep and bear Arms” may be just another way of describing “A well-regulated Militia,” as in it is a clarifying phrase rather than an additional phrase. That is, the drafters wanted to be clear that a well-regulated Militia was comprised of the people, and as part of that Militia, these people needed to be able to possess and use firearms. In other words, citizens had the right to take up arms to defend their country. The phrase in parentheses (“being necessary to the security of a free State”) indicates that a Militia is necessary. Thus, if a well-regulated Militia is necessary to the security of a free State, individuals must then have the right to possess and use firearms in order to protect that security of the free State. Without that right, there would be no way to have a well-regulated Militia. A Militia without men who can possess and use firearms is no Militia at all. Taking away the em dashes and parentheses, and replacing them once more with the existing commas, it is easy to see that the Amendment could still be interpreted in the same way as it could be with em dashes and parentheses.

But, do we even need a constitutional right to bear arms? Even if the Second Amendment were interpreted to mean that we have a right to keep and bear arms specifically in a military context, it does not necessarily mean that we should not still have such a right.

If we didn’t have the Second Amendment, what would be the argument supporting the idea that we have a right to gun ownership for private use? The strongest practical argument is likely that gun ownership is necessary for self-defense (and where gun ownership exists outside of self-defense purposes, it is for recreational purposes, which is as harmful to the general public as any other “risky” recreational sport, like snowboarding.) A moral argument would acknowledge that individuals should have such a right even if it is not delineated in the Constitution, and even if it’s not for self-defense, because there is no compelling reason to restrict, withhold, or withdraw such a right. (Certainly, arguing that something is a constitutional right makes it more difficult for that right to be taken away, but in this case, it is not beyond reason to think that an argument will emerge that the Supreme Court got it wrong in Heller. The Court has in rare cases overturned decisions when the original solution proved “unworkable,” or when the real-world conditions changed dramatically. Given the current political climate, it would not be unthinkable that Heller would follow the same path.)

Even if we do accept that there is an individual constitutional right to bear arms, the stronger political approach is based more on the tangible, contemporary issues of self-defense when discussing gun crime and of criminal access to illegal weapons when discussing mass shootings. Citing the Second Amendment to oppose an assault weapons ban isn’t meaningful beyond principle. In other words, whether or not there is an individual constitutional right to bear arms, we should have a right to bear arms.

The question then becomes: If so many people cite protection and self-defense as reasons for gun ownership, where are we going wrong in society? Why do we need such individual protection? Are our crime rates too high? Does the other side then argue that we wouldn’t have such high crime rates if we had an assault weapons ban in place? The move from theory to practice requires careful and unbiased consideration.

The questions raised here will be further explored in “The Second Amendment Part 2: Weapons Bans.”

Copyright © 2023 Kaitlin Puccio