Robbins: What the Second Amendment says
As I write this today, it is the March for Our Lives.
So, here we are again.
Four-and-half years after Marjory Stoneman Douglas, nearly 10 since Sandy Hook, nearly a quarter-century after Columbine. More than 311,000 school kids have experienced gun violence in their schools since Columbine. One-hundred and 69 have died for the simple reason that they went to school that day.
The gun violence in our schools, of course, does not include the recent spree in Buffalo, the King Soopers killings in nearby Boulder, or the Aurora Theater shootings, nor does it count the many, many more in too many states to count.
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Few, if any, would debate there is too much madness in our uniquely violent country. Where the rubber meets the road of our disagreements lies in why. Why here and nowhere else? Compared to France, the second-leading Western nation for mass murder, per capita we outdo the French by a factor of 17. Think of that a moment, if our rate of mass murder were a basketball game against the French, we would lead 170 to 10; you might say we’d be killing them.
As guns and gun laws center prominently in this debate, I thought a quick refresher on the Second Amendment might be useful. What, exactly, with no gloss or polish, does it say?
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.”
That’s it; a brief little wisp of a thing that, its brevity notwithstanding, has stirred up a horrific tempest, which has — so to speak — put us in armed, opposing camps.
Nothing in the Second Amendment says (or does not say) that gun ownership, the violence, type, or capacity of a firearm cannot be regulated. On that point, the amendment is mum. The closest that we come is with the word “infringed” which may be defined as “to act so as to limit or undermine (something).” So, at first glance, the inclusion of the word infringed might suggest that the right of the people to bear arms may not be limited … or regulated.
But not so fast.
Two fundamental precepts of legal interpretation are that legal language must be given its plain meaning and must be taken in the context in which it is provided. So, let’s look at that more closely.
Some folks just want ice cream or presents wrapped with a pretty bow on Christmas morning.
Momma says to her little one, “If you eat all your vegetables, Dear, 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, no ice cream for the little darling. This is sort of basic sentence construction; sometimes there are contingencies that must be fulfilled; otherwise, the promise in the second part of the sentence will go unmet.
“If you are a good little boy or girl, Santa will bring you lots of presents!” The implication is, of course, that if you are a little devil, lumps of coal for you!
The Second Amendment is sort of like that. It is constructed of contingencies. So, let’s take a deeper dive.
The first half of this single sentence that has stirred up so much anger 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 the Second Amendment was adopted (December 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 i) “to govern or direct according to rule;” ii) “to bring under the control of law or constituted authority;” or, iii) “to bring order, method, or uniformity to [something].”
In any of these conceptions, “regulating” something means to impose discipline on 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. And maybe it taps the brakes on the later phrase, “shall not be infringed.”
Perhaps what the Founding Fathers intended 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. Or perhaps it meant gun ownership might be subject to some restrictions. What seems certain, though, 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 must 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, at least arguably, “be infringed.” As constructed, the language of the Second Amendment may in fact provide that 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, as we now have a standing military, has the individual right to bear arms — like the militias themselves — similarly expired?
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. Slowly.
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 darn thang says without embellishment or spin.
And what it says is this; if you want dessert, you need to first mop up all your veggies. No veggies, no dessert.
If only it were as simple as that.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. He may be reached at 970-926-4461 or at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at Barnes and Noble & Amazon.com.