Dick Sciaroni: The meaning of the Second Amendment
November 30, 2017
Allan Krosner's recent letter concerning gun rights raised interesting issues.
While I support gun rights, and recognize the broad sweep given those rights by the Supreme Court, I question the oft-heard notion that the purpose of the Second Amendment was to provide a means for individual citizens to protect themselves against the actions of their government.
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."
A fundamental rule for the interpretation of documents requires that all portions of a document be given full effect. That means that one cannot cherry pick portions of a document while ignoring others. Whatever interpretation is given, that interpretation must give full and equal effect to all portions of a document.
... the express language of the Second Amendment ... deals with the maintenance of a militia and not the right of citizens to keep and bear arms in order to protect themselves against their government.
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Applying this rule to the Second Amendment, one cannot ignore the opening clause. Calling it a preamble in order to claim that it has no legal meaning is incorrect. A preamble is often used to state the origin, scope, and purpose a legal document or a statute. For example, courts have often recognized that the preamble to the U.S. Constitution sets out the origin, scope, and purpose of the Constitution.
The opening clause of the Second Amendment sets out the scope and purpose of the amendment, to wit, the right to keep and bear arms to ensure the maintenance of militias — made up of the armed citizenry — which are "necessary to the security of a free State." Nowhere in the Second Amendment is there any language to the effect that the purpose underlying the right to keep and bear arms is to enable the citizenry to protect itself against government action. The unambiguous language of the Second Amendment makes clear its purpose, namely, to ensure the security of the State.
Moreover, there is no language in the Second Amendment to the effect that the right to keep and bear arms predates the Constitution. The absence of such language reinforces the stated scope and purpose of the Second Amendment — that the right to keep and bear arms relates to maintaining militias to ensure the security of the State. The express language of the Second Amendment cannot be read to mean that the purpose of the Second Amendment is to provide a means for the individual citizen to protect him or herself against actions by the State.
In short, the express language of the Second Amendment, when subjected to rules of interpretation, deals with the maintenance of a militia and not the right of citizens to keep and bear arms in order to protect themselves against their government.
That much said, I recognize that the Second Amendment has been interpreted by the Supreme Court to give the citizenry the right to keep and bear arms. The court's recognition of that right was simple pragmatism. Americans have owned guns throughout our country's history, and the Supreme Court's recognition of an individual's right to own a gun was a realistic recognition of that long tradition. The horses were long ago out of the barn and they are not coming back.
Thus given our traditions, I dare say that had the Supreme Court ruled otherwise, there would have been a groundswell of dissent of unquestioned magnitude. I would have joined in that groundswell. It is too late in the day to question the right of citizens to keep and bear arms. But in doing so, I would not have based my view on a mistaken reading of the Second Amendment.
Simply put, claiming that the purpose of the Second Amendment is to enable individual citizens to protect themselves against the intrusions of the government is fanciful thinking based on a flawed reading of the Second Amendment. If nothing else, the combination of logic and pragmatism tells us this is so. Were the purpose of the Second Amendment to be providing citizens the means to defend themselves against government actions, then 21st century realities would mean that citizens would have the right to "keep and bear" the type of "arms" necessary to match those of the government — "arms" like howitzers, tanks, fighters and bombers, battleships, napalm, and nuclear weapons, to name a few "arms."
Claiming that the Second Amendment gives citizens the right to use force to oppose government action is nothing less than claiming a constitutional right to rebellion, an implausible and inherently contradictory notion indeed.
Dick Sciaroni lives in Grass Valley.