Bush Administration Backs Individual Right to Bear Arms

Reversing the four-decade-long federal interpretation of the Second Amendment, the Bush administration has told the Supreme Court that it believes the Constitution protects an individual's right to bear arms.

Lawyers for the Department of Justice said the high court need not test that principle now.

"The current position of the United States ... is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms," Solicitor General Theodore Olson wrote in two court filings this week.

That right, however, is "subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

Olson, the administration's top Supreme Court lawyer, was reflecting the view of Attorney General John Ashcroft that the Second Amendment applies to private citizens, not merely to militias, the Associated Press reported today.

Ashcroft angered anti-gun-rights leftists when he expressed a similar statement in a letter to the National Rifle Association last year.

"While some have argued that the Second Amendment guarantees only a 'collective' right of the states to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," Ashcroft wrote.

In November, the attorney general sent a letter to federal prosecutors praising an appeals court decision that found "the Second Amendment does protect individual rights," but noting that those rights could be subject to "limited, narrowly tailored specific exceptions."

The 5th U.S. Circuit Court of appeals went on to reject arguments from Texas physician Timothy Emerson that a 1994 federal gun law was unconstitutional. The law was intended to deny guns to people under restraining orders.

"In my view, the Emerson opinion, and the balance is strikes, generally reflect the correct understanding of the Second Amendment," Ashcroft told prosecutors.

Olson's court filing Monday urged the high court not to get involved and acknowledged the policy change in a lengthy footnote. Olson attached Ashcroft's letter to prosecutors.

In the second case, a man was convicted of owning two machine guns in violation of federal law. The government also won a lower-court decision endorsing a federal gun control law.

The cases are Emerson vs. United States, 01-8780 and Haney vs. United States, 01-8272.

Here is the text of the Second Amendment: "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 Supreme Court last ruled on the scope of the Second Amendment in 1939, according to AP. The amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well regulated militia," the court opined then.

"This action is proof positive that the worst fears about Attorney General Ashcroft have come true – his extreme ideology on guns has now become government policy," fumed Michael D. Barnes, president of Brady Center to Prevent Gun Violence, the anti-gun-rights group associated with famous gun buyer Sarah Brady

"Hate to piss on your parade, but the 2nd Admendment does have three commas not one."

It appears your parade never got started. Do a little research:

Reading the Second Amendment

Sheldon Richman

"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."

Second Amendment

Is this sentence so hard to understand" Apparently so. Even some of its defender's don't like how it is worded because it allegedly breeds misunderstanding.

But the Second Amendment of the Bill of Rights is indeed a well-crafted sentence. By that I mean that its syntax permits only one reasonable interpretation of the authors' meaning, namely, that the people's individual right to be armed ought to be respected and that the resulting armed populace will be secure against tyranny, invasion, and crime. Someone completely ignorant of the eighteenth-century American political debates but familiar with the English language should be able to make out the meaning easily.

My concern is not to demonstrate that what the amendment says is good policy, only that it says what it says. No other fair reading is possible.

The Competing Interpretation

Before proceeding, let's understand the competing interpretation. As the American Civil Liberties Union of Southern California 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 states. 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].

This interpretation is diametrically opposed to the view that says the amendment affirms the right of private individuals to have firearms. The ACLU, HCI, and others reject this, arguing that the amendment only affirms the right of the states to maintain militias or, today, the National Guard. These competing interpretations can't both be right.

The first problem with the militia interpretation is that the amendment speaks of a right and, of course, the amendment appears in the Bill of Rights. (Powers with respect to the militia are enumerated in Articles I and II of the Constitution.) No other amendment of the original ten speaks of the States having rights. Nowhere, moreover, are rights recognized for government (which in the Framers' view is the servant) but denied to the people (the masters). Henigan and company are in the untenable position of arguing that while the Framers used the term "the people" to mean individuals in the First (the right to assemble), Fourth (the right to be secure in persons, houses, papers, and effects), Ninth (unenumerated rights), and Tenth (reserved powers) Amendments, they suddenly used the same term to mean "the States" in the Second. That makes no sense.

More important, the diction and syntax of the amendment contradict Henigan's argument. If the Framers meant to say that the States have a right to organize militias or that only people who are members of the militia have a right to guns, why would they say, "the right of the people to keep and bear arms shall not be infringed"? The Framers were intelligent men with a good grasp of the language. As we can see from the Tenth Amendment, they were capable of saying "States" when they meant States and "people" when they meant people. They could have said, "The right of the States to organize and arm militias shall not be infringed," though that would have contradicted Article I, Section 8, which delegated that power to the Congress. (Roger Sherman proposed such language, but it was rejected.) Or, they could have written, "The right of members of the state militia to keep and bear arms shall not be infringed," though that would have contradicted Article I, Section 9, which forbids the States to "keep Troops . . . in time of Peace." They didn't write it that way. They wrote "the people," without qualification. (The Supreme Court said in the 1990 case US. v. Verdugo-Urquidez that "the people" has the same meaning - individuals - throughout the Bill of Rights.)

But, say the gun controllers, what of that opening phrase, "A well regulated militia being necessary to the security of a free state"? Here's where we have to do some syntactical analysis. James Madison's original draft reversed the order of the amendment: "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" Perhaps this version makes Madison's thought more clear. His sentence implies that the way to achieve the well-armed and well-regulated militia that is necessary to the security of a free state is to recognize the right of people to own guns. In other words, without the individual freedom to own and carry arms, there can be no militia. As to the term "well-regulated," it does not refer to government regulation. This can be seen in Federalist 29, where Alexander Hamilton wrote that a militia acquired "the degree of perfection which would entitle them to the character of a well regulated militia" by going "through military exercises and evolutions, as often as might be necessary."

What the Syntax Tells Us

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.)

All of this indicates the highly dependent and secondary status of the phrase. Dependent on what? The main, independent clause, which emphatically and unequivocally declares that the people's right to have guns "shall not be infringed." (Note: the amendment presupposes the right; it doesn't grant it.)

Let's go at this from another direction. Imagine that a Borkian inkblot covers the words "well regulated militia." All we have is: "A [inkblot] being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." To make an intelligent guess about the obscured words, we would have to reason from the independent clause back to the dependent phrase. We would know intuitively that the missing words must be consistent with the people having the right to keep and bear arms. In fact, anything else would be patently ridiculous. Try this: "A well-regulated professional standing army (or National Guard) being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." That sentence would bewilder any honest reader. He'd ask why such unlike elements were combined in one sentence. It makes no sense. It's a non sequitur.

Imagine the deliberations of the Committee of Eleven, the group of House members to which Madison's proposed bill of rights was referred. Assume that one member says, "We should have an amendment addressing the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the national government to respect the right of the States to organize and arm militias." "No," replies another member. "The amendment should reflect the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the government to respect the people's right to bear arms." If both members were told to turn their declarative sentences into the imperative form appropriate to a bill of rights, which one would have come up with the language that became the Second Amendment? The question answers itself.

The Committee of Eleven reversed the elements of Madison's amendment. But that, of course, did not change the meaning, only the emphasis. 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.

I am not suggesting that the Framers said explicitly that the militia reference should go into a dependent participial phrase so that future readers would know that it takes its meaning from the independent clause. They didn't need to do that. To be fluent in English means that one intuits the correct syntax for the occasion and purpose at hand. Much knowledge of a language is tacit. We have to assume that the Framers knew what they were saying.

What Language Experts Say

This analysis is seconded by two professional grammarians and usage experts. In 1991, author J. Neil Schulman submitted the text of the Second Amendment to A. C. Brocki, editorial coordinator of the Office of Instruction of the Los Angeles Unified School District and a former senior editor for Houghton Mifflin, and Roy Copperud, now deceased, the author of several well-regarded usage books and a member of the American Heritage Dictionary usage panel. Brocki and Copperud told Schulman that the right recognized in the amendment is unconditional and unrestricted as to who possesses it.

Asked if the amendment could be interpreted to mean that only the militia had the right, Brocki replied, "No, I can't see that." According to Copperud, "The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people." As to the relation of the militia to the people, Schulman paraphrased Brocki as saying, "The sentence means that the people are the militia, and that the people have the right which is mentioned." On this point, Copperud, who was sympathetic to gun control, nevertheless said, "The right to keep and bear arms is asserted as essential for maintaining the militia."

It is also important to realize that, as a matter of logic, the opening phrase does not limit the main clause. As the legal scholar and philosopher Stephen Halbrook has argued, although part one of the amendment implies part two, it does not follow that if part one doesn't obtain, part two is null and void. The sentence "The earth being flat, the right of the people to avoid ocean travel shall not be infringed" does not imply that if the earth is round, people may be compelled to sail. The Framers would not have implied that a right can properly be infringed; to call something a right is to say that no infringement is proper. As another philosopher and legal scholar, Roger Pilon, has written, the amendment implies that the need for a militia is a sufficient but not a necessary condition for forbidding infringement of the right to have firearms. The sentence also tells us that an armed populace is a necessary condition for a well-regulated militia.

Superfluous Commas

A word about punctuation: most reproductions of the Second Amendment contain a plethora of commas: "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." But according to the American Law Division of the Library of Congress, this is not how the amendment was punctuated in the version adopted by Congress in 1789 and ratified by the States. That version contained only one comma, after the word state which, by the way, was not uppercased in the original, indicating a generic political entity as opposed to the particular States of the Union. If the superfluous commas have confused people about the amendment's meaning, that cause of confusion is now removed.

One need not resort to historical materials to interpret the Second Amendment, because it is all there in the text. Nevertheless, it is appropriate to point out that history supports, and in no way contradicts, that reading. Gun ownership was ubiquitous in eighteenth-century America, and the Founding Fathers repeatedly acknowledged the importance of an armed citizenry. They also stated over and over that the militia is, as George Mason, the acknowledged father of the Bill of Rights, put it, "the whole people." Madison himself, in Federalist 46, sought to assuage the fears of the American people during the ratification debate by noting that an abusive standing army "would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands." That would have comprised the entire free adult male population at the time. There's no question that at the center of the American people's tacit ideology was the principle that, ultimately, they could not delegate the right of self-defense to anyone else and thus they were responsible for their own safety.

Perhaps the deterioration of American education is illustrated by the high correlation between the number of years a person has attended school and his inability to understand the words "the right of the people to keep and bear arms shall not be infringed." It is more likely, though, that those who interpret the Second Amendment to preclude an individual right to own guns are driven by their political agenda. Whichever the case, they do themselves no credit when they tell us that a simple, elegant sentence means the opposite of what it clearly says.

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At the time of the original publication, Sheldon Richman was editor of The Freeman.
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Reprinted with permission from The Freeman, a publication of The Foundation for Economic Education, Inc., February 1998, Vol. 48, No. 2

The Second Then and Now

From The California Rifle and Pistol Association, Inc. Publication

The Firing Line July 2001

The Second Then and Now
by Jerry Phillips

-------------------------------------------------------------------------------- The U.S. National Archives and Records Administration (NARA) says that they have on permanent display in the rotunda of their building in Washington, D.C., the original joint declaration of the House and Senate proposing the first twelve Amendments to the Constitution. This parchment document was copied and the copies were provided to the states for ratification or death. The states (3/4 of them) ratified ten of the Amendments to the Constitution and are known as the Bill of Rights.

On its Wold-Wide Web site (www.nara.gov), NARA provides access to a number of historical images and some as transcripts. These include both an image and a transcript of the Bill of Rights.

In NARA's transcript, the Second Amendment is written with the three commas that are in the most commonly seen version of the Amendment. They also capitalize "state" as in that commonly seen version. That is, they write the Amendment "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."

I think it is very unlikely that NARA does not have the document as they claim, or that the document they have is not as they claim. I have seen or heard of no controversy on these matters. And it makes sense that he who has a document would be in the best possible position to say what that document says. Hence, I believe the most commonly seen version as stated above is the true and correct version.

From the image version at the NARA web page, one can see that there are spots in the place NARA say there are commas. But it is not possible to definitely say from the image that the spots are commas. One can definitely tell about the capitalized words. The same is true of a more legible black and white image I found at another web site. I'd like to see the actual document when I can, and suggest that others do so if they have any doubt as to what any of the Amendments actually say.

What does it matter how the "Second" is written? The capitalization means that the "State" the Amendment refers to is like the states of the union, not like a condition. It was referring to those states that were united by their ratification of the Constitution. This does not mean state governments. It means the people bound together by a government and having claim over an area with specified boundaries.

Actually, the two extra commas (the first and last) mean nothing. I only point out that they are there in the original Amendment because I have seen that someone else has claimed they don't belong. The reason that they don't matter is that their placement does not correlate with what is called "functional" punctuation.

What one must realize is that it was quite common until only a few years ago for commas to be used according to a different set of rules than generally apply today. Commas were included as speech signpost rather than only functional signposts. In other words, a comma was very commonly used (when the Bill of Rights was written) to indicate the location of a pause. This is something still done by people writing things to be spoken rather than only read (like speeches and scripts). Such commas have no effect on meaning. They only tell the reader where to pause while reading aloud for an audience.

The Second Amendment written without the first and last commas is just a version that is correctly punctuated according to the rules for "functional" punctuation. It has the same meaning as the original as long as nothing else is changed with respect to the original.

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