Confusion: The wording of the Second Amendment

One of the primary arguments of gun advocates in that the Second Amendment guarantees the right for citizens to own and carry guns.  Their argument has been repeated so many times that many progressives or moderates parrot the same line.  Then they offer arguments as to why there should be limitations on gun ownership, such as bans on assault weapons.

There are two problems with the Second Amendment.  First, under any circumstance, it is confusing; something that an English teacher would mark up in red ink and tell the author to redo and clarify.  Secondly, there are actually two versions of the Amendment; The first passed by two-thirds of the members of each house of Congress (the first step for ratifying a constitutional amendment).  A different version passed by three-fourths of the states (the second step for ratifying a constitution amendment).  The primary difference between the two versions are a capitalization and a simple comma.

The version passed by Congress is:

  • 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 version ratified by the states and authenticated by Secretary of State Thomas Jefferson 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.

It’s difficult to determine the difference between having a capital M and a lower-case m in the word militia.  Generally, a capital letter means a proper noun.  In that case, the upper case M, as in the Congressional version, references a particular militia, that being the armed forces of the United States.  The lower-case m in the second version would refer to a group of individuals who form an ad hoc army, most likely to oppose the armed forces of the United States.  Therefore, it would be okay to keep and bear arms only as part of the official armed forces of the United States.  This argument supports a limited version of the right to bear arms; only when serving in the official armed forces of the United States.

The comma in the first version (between the words Arms and shall) also changes the meaning of the amendment.  The first version with the comma maintains the reference to the official armed forces of the United States.  That is further evidence that the right to bear arms is limited to serving in the official military of the United States.  The lack of a comma (between arms and shall) in the second version, implies that there is equality or parity between bearing arms for the official forces of the United States and for personal use of firearms.  This supports the N.R.A. position on the Second Amendment. as does the lower case m.

The provision for passing an amendment to the U.S. Constitution requires ratification of the same language by two-thirds of the members of each house of Congress, and the legislatures of three-fourths of the states, as described in Article V of the Constitution. It states:

[shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;]

But in the case of the Second Amendment, the language between the Congressional and state versions have different meanings.

What this does is to throw out either meaning of the Second Amendment. It puts the definition of the right to bear arms in the same category as other items not mentioned in the Constitution and Bill of Rights, such as the right to privacy, the right to reproductive freedom, the right to gay marriage.

Bearing arms is then a legislative issue.  It may be that the policy desired by Congress, the states of the U.S., and most importantly the people, is to permit individuals to own assault weapons.  It also may be to prohibit them.  In any case, the decision should be made on wise policy, without constitutional reference to the Second Amendment.  The Second Amendment should be null and void, because its ratification did not follow the prescribed method for passing an amendment.  This makes it blatantly confusing.

As Fareed Zakaria pointed out in Time, “Congress passed the first set of federal laws regulating, licensing and taxing guns in 1934. The act was challenged and went to the U.S. Supreme Court in 1939. Franklin Delano Roosevelt’s solicitor general, Robert H. Jackson, said the Second Amendment grants people a right that ‘is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.’ The court agreed unanimously.”

Let’s continue (or start) the debate and discussion on gun ownership based on sound policy, rather than on the lame and unconstitutional elements of the Second Amendment.

Images by Carol Ruzicka

Arthur Lieber Arthur Lieber (333 Posts)

Since 1969, Arthur Lieber has been teaching and working in non-profit educational organizations. His focus has been on promoting critical, creative, and enjoyable learning for students in informal settings. In the 2010 mid-term elections, he was the Democratic nominee for US Congress from Missouri’s 2nd Congressional District.

  • Paul Ciancio

    Why would a right (granted by your creator) be written IN THE BILL OF RIGHTS if it was meant for “the army”???????? Back then there WAS NO STANDING ARMY… The “militia” or “Militia” or “MILITIA” or “mILITIA”, was and still is “we the people”. Here are some quotes.

    “I ask, Sir, what is the militia? It is the whole people. To disarm the
    people is the best and most effectual way to enslave them.”
    George Mason

    Co-author of the Second Amendment
    during Virginia’s Convention to Ratify the Constitution, 1788

    “A militia, when properly formed, are in fact the people themselves …”
    Richard Henry Lee

    writing in Letters from the Federal Farmer to the Republic, Letter XVIII, May, 1788.

    “A free people ought … to be armed …” –George Washington

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  • Al Eng

    “lame and unconstitutional elements of the Second Amendment.” How unAmerican is this statement? You can be opposed to guns but your ideology is opposite American belief and Constitutional rights. If you don’t like the 2nd amendment Overturn it. If that’s not good enough move somewhere and create your own world and Constitution.

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  • anabelle kyrie

    “Who are the militia? Are they not ourselves? Congress have no power over or to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American . . . . The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” —
    Tench Coxe The Pennsylvania Gazette, Feb. 20, 1788

  • Arthur Lieber

    I appreciate your comments. I just think that public safety is much more important than the right of anyone to own a gun. Industrialized countries with fewer guns are safer.

  • anabelle kyrie

    That, Sir is what makes this country so very great. Your RIGHT to disagree and voice that disagreement. I have no problem with your beliefs. It just brings great sorrow to me to see people wanting to take these precious rights that make our country great, away from the people. I would also add that countries that have enacted gun control have also seen their violent crimes, both with and without guns rise after said bans were enacted. Because the criminals will never care about laws, and the law abiding people are left defenseless. God Bless you and America, stay safe.

  • Arthur Lieber

    Anabelle, I too hope that you stay safe. I also agree that the ability to disagree in a civil fashion is one of the strong points of our country. In my mind, the key to an issue like the Second Amendment is balancing our rights. None are absolute; we must compromise when different rights bash into one another. As I said, I favor the right to safety over the right to own a gun. But honest people can disagree.

  • Tyler

    You favor the right to safety over the right to own a gun, even though owning a gun does in fact allow you to safer, to protect yourself, from those who would do you harm? It has been quite a while since I have seen anybody say something that contradicted itself so badly.

  • Ratherdrive

    A standing army was created in Article One, well prior to the BOA.

    Good to see you mentioned the Virginia Convention to Ratify, which is where the debate on the 2A took place. And where private ownership of firearms was not even discussed, it was just assumed.

    Self defense did not come up, either.

    That convention made it very clear that what Virginia, and the rest of the South, did not want infringed by Congress was the practice of using militia as slave patrols in the South. Can’t very well maintain slavery without force, obviously.

  • Ratherdrive

    Tench Coxe was nowhere near Richmond when the Second Amendment was being debated.