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
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.