Sunday, April 22, 2007

The Second Amendment

The recent mass shooting at Virginia Tech have been occasion for many to think about the state of gun control and the Second Amendment in the United States. As students of the law, Law Law Stud invites you to participate in the discussion.

The Second Amendment is not, as perhaps some would prefer to think of it, simply an outdated relic of the 18th Century. It is not a political compromise of the sort that preserved slavery in the South. It was part of a group of amendments that were ratified by the states as guarantees against the terrifying prospect of an overreaching Federal Government. This group of amendments are now known to us as the Bill of Rights.

Nonetheless, because guns and firearms are the most specifically recited tangible, physical objects, and because they can be used to end lives, they and the Second Amendment are source for much debate.

The Second Amendment reads:

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.

First, there is the matter of what constitutes "arms". The modern interpretation is that it means firearms. Given that the Founding Fathers had, less than ten years before the ratification of the Constitution, ended a shooting war with Great Britain, it is likely that they also had such a definition in mind. Since there hasn't exactly been a great public controversy over the right of private citizens to own swords and catapults, we shall focus on firearms.

State vs. People
Second, to whom does this right apply? There are two principal interpretations. The first interpretation focuses on the word "State": Since a State necessarily regulates its Militia, the argument goes, it could dictate the terms of gun ownership. The second interpretation focuses on the fact that the amendment says specifically that "the right of the people to keep and bear Arms shall not be infringed." From a textual position, this second interpretation seems strongest, as it is unencumbered by apostrophes or supporting clauses. From another point, a principal rule of Constitutional Law is that governments have powers, people have rights. This is particularly spelled out in the Ninth and Tenth Amendments.

Third, what is the point of reciting the need for a well regulated Militia? A principal rule of statutory interpretation is that every word means something. By extrapolation, every clause has a reason. What then is the reason for the reference to the Militia, and what does it have to do with the right of the people? The traditional explanation has been the linkage between the yeomen Minutemen of Massachusetts and their involvement in the War of Independence. The war brought realization to all doubters that, whether federal or local, a free state relies for its security on its militia, or military forces. At the time of the ratification, the United States was still largely in debt, such that the provisioning of military arms was not affordable. In much the same way as ancient Spartan hoplites, then, it made sense for citizens to provide for their own arms. Besides, given the initial battles of Lexington and Concord, it was apparent that private control of military arms kept alive the specter of resistance to any government. Indeed, the nation saw in Shay's Rebellion and the Whiskey Rebellion that armed resistance was credible resistance.

Thus, an armed citizenry not only provided the government with soldiers (a State free of occupation), it also kept government on its toes (a State of free men).

State Power
Fourth, assuming that the Second Amendment, despite its clear language, can be read expressly as granting States power to regulate firearms, what if any impact do subsequent history and amendments have? Bruce Ackerman and Kurt Lash, proponents of "regime theory", hold that the introduction of the Civil War Amendments may require incorporation of the Second Amendment. Incorporation, students of Constitutional Law will remember, is the application of the Bill of Rights against State governments. The Thirteenth Amendment, which explicitly abolished slavery, has been interpreted also to forbid "badges and incidents of slavery". Civil Rights Cases, 109 U.S. 3 (1883). Professor Lash notes that if the right to keep and bear arms is interpreted as a right of self-defense, then any State law which restricts self-defense would violate prohibitions on "badges and incidents of slavery", because slaves were not allowed to defend their persons, nor to hold, much less defend, their own property.

Fifth, there is the matter of what exactly "infringement" means. Returning again to statutory interpretation, note that the Second Amendment states that "the right of the people to keep and bear Arms shall not be infringed." (Emphasis mine.) This is a different limiting word than that of the First Amendment, which prohibits "abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Why this difference? defines infringe and abridge slightly differently.


  1. (v.t.) to commit a breach or infraction of; violate or transgress: to infringe a copyright; to infringe a rule.
  2. (v.i.) to encroach or trespass (usually fol. by on or upon): Don't infringe on his privacy.


  1. to shorten by omissions while retaining the basic contents: to abridge a reference book.
  2. to reduce or lessen in duration, scope, authority, etc.; diminish; curtail: to abridge a visit; to abridge one's freedom.
  3. to deprive; cut off.

Law Law Stud takes the position that an infringement is a total abridgment, such that all infringements are abridgments, but not all abridgments are infringements. This seems to make sense in light of how most people tend to think about the difference between Second and First Amendment rights. While most reasonable people may find hate speech disgusting, but protected, most reasonable people would probably tolerate certain aspects of gun control, such as requiring safety education, locks, and automatic but speedy background checks. Certainly, nobody wants a mentally unstable person to have easy access to guns.

Finally (at least for now), the Second Amendment is interesting in what it leaves out. While it explicitly discusses "the right of the people to keep and bear Arms" (emphasis mine), it says nothing about their use. Presumably, it leaves this to state common law and criminal law. Certainly, killings not justified by self defense would be proscribable. This, of course, seems to make eminent sense, though supporters of gun bans would be livid. Even if we assume, then, that any abridgment would be an infringement, contra the discussion above, and that the Second Amendment can be incorporated against the States, all that it protects is "the right ... to keep and bear Arms," not to use them. In plain English, this means that an individual would have the right to have a gun, and even a right to carry a gun, perhaps even by concealed carry. But that individual might not have the right to use that gun without a license. Since use is not governed by the Second Amendment, then, it is governed by state common and criminal law, and under the doctrine of state police powers, use may be heavily regulated, even to the point where only shots fired in self-defense are ever permissible. Still, that would provide legal cover for those who do use their guns to stop mass shooters before many more are killed, cover that is already available under common sense.

This promises to be an interesting debate, and Law Law Stud welcomes your thoughts, so long as you do not lose your point in name-calling. Have at it!

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