A Well-Regulated Militia

The second amendment has seemed to generate greater controversy than any other single amendment (Roe v. Wade involved both the 9th and 14th amendments). It is worth looking therefore at the language of that amendment from a theoretical linguistic standpoint. It 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.

Like any other spoken or written communication, its interpretation -- its significance, as I termed it in my blog on the meaning of meaning -- depends on its literal meaning, the linguistic and real world contextt in which it occurs, and assumptions about the intent of the speaker/author. This latter claim is required to account for how we interpret many of the utterances we encounter in the real world. Suppose for instance, I say (1)

(1) Can you reach the salt?

while eating at a large table with others. In that context, given that I can reasonably be assumed to have need of salt and other condiments, the utterance would be interpreted not as a pure information question but as a request for salt, the language of which acknowledging that the addressee may have to put him/herself out a bit to take possession of the salt. However, were I to say (1) to a paraplegic in a context in which we are in his/her kitchen and (a) we are not eating and so I have no expectable need for salt and (b) I am trying to arrange things so that my friend an function in it independently. In that context, it would normally be interpreted as being an information question which is the default, but not the only use of an interrogative sentence.

The most relevant contexts for the interpretation of the Second Amendment are the linguistic context and the real world context in which it was written. The linguistic context is one in which various restrictions are placed on the federal and state governments that prohibit them from infringing specific enumerated rights of individuals (and in a few cases rights of the states) as well as various unenumerated rights (Ninth Amendment) that are "retained by the people." These rights are presumably those that were assumed to hold at the time of the writing of the constitution. One such right would be the freedom to move from one place to another to find work or for any other reason (except to flee prosecution). Another would be the right to take any job one wanted that one could get. Still another would have been the right to own and use a musket or pistol for hunting and self-protection. This last fact is critical to understanding the intent of the writers of the second amendment. Since we can reasonably assume the writers of the Bill of Rights knew that ordinary citizens did own such weapons, if they meant to prohibit future ownership they would have said so.

A very serious problem with the composition of the second amendment is the position of the commas which are almost randomly sprinkled into the sentence. It reads, again, "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." This is a clear mistake. It should read "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 point is that if one treats the phrase "being necessary to the security of a free State" as being in apposition to "A well regulated Militia" we would be left with an ungrammatical and incomprehensible sentence, namely.

A well regulated Militia the right of the people to keep and bear Arms, shall not be infringed.

This is total nonsense. As a result, we must see the phrase "being necessary to the security of a free State" as having "wide scope" over the sentence, that is, this phrase limits how the rest of the amendment is to be interpreted. The last comma is also ill-placed. Methinks that our founders suffered from an excess use of commas.

In my brief survey of the kinds of weapons individuals could have owned at the time of the writing of the 2nd amendment suggests that ordinary citizens had access only to single shot weapons. Percussion pistols were developed in the next century and so no revolvers can be found dated at the time of the writing of the constitution. Nevertheless one can buy revolvers and automatic pistols today in the United States. Gattling guns, a precursor to machine guns, were developed a century after the penning of the Bill of Rights). The closest thing to a shotgun at the time of the Revolution was a musket loaded with a single ball and three to six buckshot.

So, in interpreting the 2nd Amendment we have to take into consideration the weapons that were available for use by civilians for protection of the state and themselves as well as for hunting. Single shot weapons, if carried on one's person and loaded, could be used for personal defense only if the person threatening oneself had only a knife or had missed you with his single shot weapon, leaving him vulnerable to your single shot weapon. Otherwise these were fairly useless except for muskets used for hunting food. In fact, single shot weapons would have been useful for protection only when combined with others in a "well-regulated militia."

I am amazed that people want to own fireable gattling guns, machine pistols with multi-cartridge magazines, .50 caliber rifles, and other weapons of war. I can only guess at how the founders of the constitution might have felt about such a thing, but the language of the constitution is quite explicit -- there is no linguistic wriggle room. They are legitimized only by their inclusion in service of a "well-regulated militia." Since our forefathers were not idiots, we can fairly safely assume that they would never have meant to license personal ownership of any true weapon of war such as machine guns, .50 caliber rifles, machine pistols with multi-cartridge magazines, etc On the other hand, it can reasonably be assumed, I think, that they would have found the modern day equivalents to the kinds of weapons individuals owned for their personal use as acceptable, including revolvers (but not automatic pistols), true hunting rifles, and hunting shotguns(i. e., modern day muskets loaded with a ball and some buckshot).