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There it sits, ungrammatical commas and all, a complete anachronism born out of assumptions no longer valid, having long outlived its purpose, haunting the American polity and sowing untold death and destruction. If you’re looking for how a bit of bad drafting can intersect with the often ludicrous logic of over-trained legal minds, the Second Amendment to the Constitution of the United States should do you quite nicely.
It probably seemed simple and straightforward to those who passed it. Not that there wasn’t the usual wrangling about how best it could reflect the legislative intent – it went through several drafts before it was ratified as part of America’s Bill of Rights. The version actually voted upon in Congress didn’t have the extra misplaced commas. Those got inserted later, somehow. Initially, it also included language ensuring that religious objectors couldn’t be compelled to bear arms either. Like all things political, it was a compromise, a bit of a botch job, and inevitably short-sighted, since those who wordsmith laws and constitutions can’t anticipate the many ways the world will change around the words they write in stone. More’s the pity with this one.
Except, of course, laws and even Constitutions aren’t written in stone, which is how this particularly awkward sentence was foisted upon the nation in the first place – it was itself one of numerous amendments. When things like that become obsolete, or pernicious in unforeseen ways, you change them, don’t you? You amend the thing again. Yet Americans, or enough of them anyway, carry on as if the Second Amendment was written by Almighty God, inscribed on a tablet of granite, and delivered to the Continental Congress by Jesus Christ Himself in a golden chariot.
I remember being more than a little surprised when I first looked into this in detail, actually read the cursed thing, looked up the history, and read a few of the Cliff’s Notes on the relevant jurisprudence. I’d assumed that the Second Amendment unambiguously granted every citizen the individual right to own any damned weapons he or she pleased, presumably because the guys in tricorner hats lived in a more rough-and-tumble world in which it was always a good idea to keep a loaded musket by your nightstand, just in case a bear barged in, or something like that. Nobody ever laid any emphasis on the words about a militia, or how the first words of the text, what lawyers insist upon calling the”prefatory clause”, might inform how the final “operative” clause ought to be interpreted.
Well, it turned out that the militia stuff was actually the nub of it. The debate around the language, as the amendment worked its way through the system, centred mainly upon how it was vital to ensure that the individual States had legal authority to organize their own local armies. The rather straightforward reason why this was so vital was that the Federal Government, of course, would not itself have a standing army, this being a possible tool of tyrannical despots down the road. The boat on the no Federal army thing kind of sailed, eventually, but at the time the thinking was that they hadn’t booted all the King’s horses and all the King’s men out of the country just to leave the door open for the eventual rise of some new quasi-monarch. Here’s how Justice Stevens, sadly writing one of those 5/4 minority dissents so typical of the modern, politicized US Supreme Court, put it in 2008:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
He was right, of course, but the problem was that the nimrods who wrote it didn’t make that clear enough. They didn’t, for example, simply say:
The people of each of the States shall be entitled to raise and regulate their own independent State militias, and nothing shall be done to interfere with that right.
See, that would have made it clear. Nobody could read that and argue that the average boob is thus guaranteed the right to keep a bazooka in the hall closet, the better to thwart possible armoured assault. But no, they had to muddy it up with a bunch of oddly placed commas and a prefatory clause, allowing scholars and lawyers to argue that the second part isn’t limited by the first, and that militias and the right to raise them provide just one contemplated example of the things you could do with your unrestricted right to own lethal weaponry. In other words, it wasn’t a collective right, as the introduction might lead you to believe, but an individual right. John. Q. Citizen could therefore own as many firearms as he pleased, of any variety that suited him, and, if he further pleased, he could also join the militia, presumably bringing his own firepower along with him because that’s how they did it back in the day.
This thinking was adopted by my favourite* jurist, Justice Antonin Scalia, writing for the majority in the 2008 case of District of Columbia v. Heller. Now, Scalia fancied himself a clever and witty man, and his ruling included this prime example of his judicial mind firing furiously on all of its clever and witty cylinders:
A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.
I think this means that in Scalia’s view, the grammar of the text means that the law isn’t permitted to restrict the inherent right to own weaponry for any desired purpose, like, say, hunting, because, among other things, that would get in the way of raising militias. I think. That, and anyone who disagrees is a mad hatter from the other side of the looking glass. He liked to throw in that sort of taunting snark to spice things up a bit. Strip away the trappings, and he was basically a garden variety internet troll.
The wording of the damned amendment does, I suppose, lend itself to Scalia’s interpretation, in one strict grammatical construction. Judges like Scalia are “Textualists”, a.k.a. “Originalists”, who pretend to believe that the Constitution means exactly what the words say, no more, no less, and we can’t start putting a spin on it just because we want to honour the spirit of the thing, instead of the letter. One mustn’t look at the context in which it was written, what the policy was when it was first drafted, or what people so motivated would want it to mean now, in our present circumstances, given the inherent intent. Nope. That’s not how you go about it. To Scalia and his ilk, divining meaning and purpose in the nation’s musty old constating documents is something akin to diagramming a sentence.
He hewed to this philosophy even when his rigid take on the letter of the law rendered a provision obsolete, contrary to any reasonable intent one could impute to the Framers, and terribly, terribly harmful in a way that would have made those Framers weep. And of course he, the Great Scalia, gave the Second Amendment a couple of quick reads and knew exactly and absolutely what the shitily written, comma stuffed artifact of the 18th century really meant, and could only conceivably mean. Look, he’s just there to call balls and strikes, not make policy.
Right, so let’s be ruled from the grave, then. Also, bullshit, Antonin, you read it the way it suited you, determined to make it dovetail with your own policy preferences.
Really, it’s just as plausible to take a purportedly textualist approach and conclude that the Amendment From Hell says something different – these umpires calling the balls and strikes tend to have their own strike zones, right? – something like my own cut at it above. The bad drafting suits that parsing just as well, even if you refuse to squirm out of Scalia’s strait-jacket and consider what the people who wrote it actually said they were trying to accomplish. Thus interpreted, the whole problem goes away, since no gun law, however strict, can get in the way of raising a militia any more. You don’t need your own AR-15 in the closet if you want to join the Army. Here in the 21st Century we don’t expect you to tote your own shootin’ iron to Fort Bragg, soldier. We’ll issue a standard assault weapon from stores, at the same time we give you the uniform, which you don’t have to bring either.
If you were a thoughtful, decent sort of person, and happened to be sitting on the Supreme Court, you might be inclined to favour my interpretation, just because people keep getting gunned down in droves by weapons the like of which none of those swell guys at the Continental Congress could possibly have imagined. Had they been able to see what an AR-15 with a hundred round drum could do in the hands of an average 12-year-old, I bet they would have been a Hell of a lot more careful in delineating which sacred rights they were and were not protecting. That’s not the way it’s ever going to break, though. Not with Gorsich and Kavanaugh (and whoever else, God forefend, Trump gets to appoint) rounding out the squad.
The obvious answer at this point is to end-run the judges and repeal the bloody Second Amendment altogether, just like they repealed the one that brought in Prohibition. Just as obvious is that there isn’t a ghost of a chance that could happen. Too many people spreading way too much money around don’t want it to. These architects of a nation with more firearms than people might have operated under some constraints on how much of their filthy lucre they could use to buy politicians, but Scalia and his pals made sure you couldn’t mess with that, either, in a case called Citizens United.
Here’s where that leaves us:
Military grade firefights in schools, churches, mosques, synagogues, movie theatres, wherever it becomes necessary. That’s the answer.
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