Vail Law: The first half of the Second Amendment key to interpretation (column)
March 13, 2018
Some folks just want the ice cream.
Bear with me just a second. Let's consider this …
Mom says to her little one, "If you eat all your vegetables, dear, then you can have ice cream for dessert." The second half of the sentence is contingent on the first. And the implication is that if the first condition is not fulfilled, then no ice cream for the little darling. This is sort of basic sentence construction; sometimes there are contingencies which must be fulfilled otherwise the promise in the second part of the sentence will be unfulfilled.
“If the contingency is eliminated, that is if militias are no longer “necessary to the security of a free state,” then “the right of the people to keep and bear arms” may, in fact, be infringed. The right to keep and bear arms depends entirely on the contingency of being prepared to form into militias to secure the national defense. And, keeping our eye on the 21st century, militias are no longer where it’s at when it comes to national defense.”
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"If you are a good little boy/girl, then Santa will bring you lots of presents." The implication is, of course, that if you are a little devil, then lumps of coal for you.
The Second Amendment is little different. It is constructed of contingencies. It reads, in whole, like this; "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."
Let's vivisect this.
The first half of this single sentence contemplates that "a well regulated militia is necessary to the security of a free state." No argument there. There are, however, a couple of things worth noting. First, at the time, when the Second Amendment was adopted (Dec. 15, 1791) the fledgling United States had little or no standing army. The national defense was secured by the militias of the various states. Second, and while we're at it, what exactly is a "militia?" Webster's defines a militia as "a body of citizens organized for military service."
So far so good.
Worth noting too, is a third phrase within the first half of this sentence; that is the part that speaks to the militia being "well regulated." Now, one could take this several ways. Webster's provides us with several suspects; "regulate" may mean 1) "to govern or direct according to rule;" 2) "to bring under the control of law or constituted authority;" or, 3) "to bring order, method or uniformity to (something)." In any of these conceptions, "regulating" something means to impose discipline to a thing, to contain or control it in some meaningful way. It is the opposite of the helter-skelter doing as one may wish without controls.
I'll venture what the Founding Fathers intended here in employing the word "regulate" was to bring the militias under the authority of the central government in times of need and to impose some structure on them. But you are, of course, free to disagree. What is certain, however, is the clear intent to impose order or a set of rules on the bearing of arms.
On to the second part of the sentence which balances on a conditional fulcrum.
That part holds that as a well-regulated militia is necessary to the security of a free state, "the right of the people to keep and bear arms shall not be infringed."
The condition for "the people" "to keep and bear arms" is in consideration of the need for the militia to vouchsafe "the security of a free state." In other words, the hinge upon which the second half of the sentence balances is the reasonable supposition that: A) if the militias are comprised of "the people" (or, alternatively, of "citizens"); and B) if the militia needs to fight at times to keep our freedom, then C) duh, the people who comprise the militia need to be armed.
The purpose for "the people" to bear arms is to be prepared to form into militias when called to the public defense, to bring their muskets with them, and to leap into the fray to protect our precious freedoms.
If the contingency is eliminated, that is if militias are no longer "necessary to the security of a free state," then "the right of the people to keep and bear arms" may, in fact, be infringed. The right to keep and bear arms depends entirely on the contingency of being prepared to form into militias to secure the national defense. And, keeping our eye on the 21st century, militias are no longer where it's at when it comes to national defense.
Nowhere does the Second Amendment provide for the right to keep and bear arms for any purpose other than to secure the national defense or to do so in any form other than in the sole context of forming a militia. Read it again. Read it slowly.
This is important. It is so fundamental to the law that it is axiomatic; most times, plain language controls. If a word or phrase or sentence can be easily understood in applying the usual and customary definitions and construction to it, then viola, that is what the court will adopt as its meaning.
Now, I'm not arguing here about how the Supreme Court has interpreted the Second Amendment over the years and I'm not nosing around in what the various state constitutions may or may not have to say on the subject. What I am simply trying to get at is what the whole darn thang says without embellishment or spin.
And what it says is it says is this: If you want dessert, then you need to first mop up all the veggies. No veggies, no dessert.
As simple and as clear as that.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.