What the Second Amendment Means
by Sheldon Richman, October 1995
The decline of education in the United States may be reflected in the high correlation between the amount of formal schooling a person has and his inability to understand the following words: "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."
The radio and television talk shows have been raging in recent years with discussions of the Second Amendment to the U.S. Constitution. The debate is over whether that amendment protects private, individual ownership of firearms or whether it means something else. Typically, people who favor gun ownership take the first position, although some legal scholars who do not like gun ownership reluctantly agree that the amendment protects it nonetheless. Opponents of guns argue that the amendment protects only the right of the states to form militias or National Guard units. As the American Civil Liberties Union of Southern California has put it, "The original intent of the Second Amendment was to protect the right of states to maintain militias." Dennis Henigan of Handgun Control, Inc., says the amendment is "about the distribution of military power in a society between the federal government and the state. That's all they [the Framers] were talking about." As he put it elsewhere, "The Second Amendment guaranteed the right of the people to be armed as part of a 'well regulated' militia, ensuring that the arming of the state militia not depend on the whim of the central government." (Emphasis added.)
Thus, we have diametrically opposed individualist and collectivist interpretations of the amendment. People on both sides of the issue agree, however, that the sentence was not well written. I disagree. A knowledge of English syntax and vocabulary — and nothing else — should be sufficient to determine that the amendment protects an individualist right to firearms.
Approaching the sentence as grammarians, we immediately note two things: the simple subject is "right" and the full predicate is "shall not be infringed." This, in other words, is a sentence about a right that is already assumed to exist. It does not say, "The people shall have a right to keep and bear arms." The amendment recognizes , but does not grant, the right. As the U.S. Supreme Court wrote in the late 19th century, the right to keep and bear arms is independent of the Constitution.
That has important implications for the opening militia phrase, which confuses so many people. Gun opponents often argue that if the opening phrase does not apply — if, say, the standing army takes the place of the militia — then the right to keep and bear arms is nullified. That view would require a willingness by the framers of the Constitution to agree to this statement: If a well-regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms shall (or may) be infringed. But it is absurd to think that the Framers would embrace that statement. Their political philosophy would not permit them to speak of a permissible infringement of rights. In their view, individuals, joining together to form a political unit, delegate rights and powers to government. But the people do not — cannot — consent to an infringement of their rights — such consent, logically, would make no sense. The term infringement implies lack of consent.
As a matter of logic, it is an error to believe that nullification of the opening phrase would nullify the main clause. Imagine a long-lost constitution that stated: "The earth being flat, the right of the people to abstain from ocean travel shall not be infringed." Would anyone seriously argue that discovery of the earth's spherical shape would justify compelling people to sail?
The advocates of gun control maintain that the amendment merely affirms the states' right to form state militias. You want to own a gun? they ask. Join the National Guard. That view dissolves under even casual analysis. First, James Madison's amendment says "the right of the people." If he meant states, why didn't he say so? The Bill of Rights, in fact, never ascribes rights to states. On the other hand, the people are mentioned in the First, Fourth, Ninth, and Tenth Amendments, as well as the Second. Surely the Framers did not mean to say that states have a right to peaceably assemble and be secure in their persons, houses, papers, and effects. The states are mentioned in the Tenth Amendment, but in terms of powers, not rights. Moreover, that amendment names both the people and the states, indicating that the Framers wrote "states" when they meant states and "people" when they meant people.
The meaning that the gun controllers impose on the amendment simply cannot be squared with the Framers' syntax and choice of words. If their concern had been to keep the national government from limiting the states' power to form militias, they might have written: "A well-regulated militia being necessary for the security of a free state, the power of the States to form and control militias shall not be limited." (That, however, would have conflicted with other clauses in Article I of the Constitution.) The main clause of my revision keeps the focus on states and militias, where the gun controllers say it should be. In contrast, Madison's main clause focuses on the people's right to keep and bear arms. How can it be reasonably concluded that the amendment means anything but that the people have an unconditional right to own and carry arms?
To see this more clearly, consider that Madison's original draft reversed the order of the elements: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country." That sentence implies that the way to achieve the well-armed and well-regulated militia necessary to the security of a free state is to recognize the right of people to own guns. In other words, without individual freedom to own and carry firearms, there can be no militia. ("Well regulated," Alexander Hamilton wrote in the Federalist Papers , meant well drilled and disciplined.)
How do we know that the "well regulated militia" is defined in terms of an armed populace and not vice versa? The syntax of the sentence tells us. Madison and his colleagues in the House of Representatives chose to put the militia reference into a dependent phrase. They picked the weakest possible construction by using the participle "being" instead of writing, say, "Since a well regulated militia is necessary. . . ." Their syntax keeps the militia idea from stealing the thunder of what is to come later in the sentence. Moreover, the weak form indicates that the need for a militia was offered not as a reason (or condition) for prohibiting infringement of the stated right but rather as the reason for enumerating the right in the Bill of Rights. (It could have been left implicit in the Ninth Amendment, which affirms unenumerated rights.)
The House reversed the elements of Madison's amendment. That changed the emphasis, but not the meaning. In fact, the reversal made it a better sentence for the Bill of Rights. As adopted, the amendment begins by quickly putting on the record the most important reason for its inclusion in the Bill of Rights but without dwelling on the matter; that's what the weak participle, "being," accomplishes. The sentence then moves on to the main event: "the right of the people to keep and bear arms." The Framers correctly intuited that in a Bill of Rights, the last thing the reader should have ringing in his mind's ear is the absolute prohibition on infringement of the natural right to own guns.
The lack of conflict between the militia and individual ownership of guns is made all the more clear by the fact that in the Framers' day, the militia comprised, as George Mason put it, "the whole people." Thus, the amendment, rather than being muddled or contradictory, is elegant and appropriate to its task.
Finally, even if we grant the gun controllers' arguments about the Second Amendment, they still would not get where they want to go. In their view, the amendment authorizes the creation of state militias. But that implies no prohibition on private gun ownership. And the Ninth Amendment says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." So the people have unenumerated rights. By what warrant can we exclude from those rights the right to keep and bear arms?
Mr. Richman is senior editor at the Cato Institute in Washington, D.C., and the author of Separating School & State: How to Liberate America's Families , published by The Future of Freedom Foundation.
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