Michael Hays

Like other amendments in the Bill of Rights, the Second Amendment is brief: “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 legal arguments opposing gun control measures invariably resort to, and rely upon, a reading of these 27 words. They assert that the amendment states an unqualified Constitutional right to “keep and bear Arms.”

If this right were unqualified, it would differ from all other amendments about individual rights, which, even though stated without qualification, have been qualified in their exercise by legislation and adjudication reflecting long-established legal traditions derived from case law, initially English, finally American as well.

But the Second Amendment’s right to “keep and bear Arms” is not unqualified. It is qualified, indeed, uniquely so, by the contexts provided by its introductory phrase and by the Constitution’s relevant provisions. It is the only statement in the Bill of Rights or the Constitution to use an absolute construction, a group of words

The Second Amendment’s absolute construction limits the right to “keep and bear Arms” by qualifying it by reference to the Constitution’s three provisions on militias their purposes, management, and command. Yet few trace the connection. Absent a “well-regulated militia,” any right to “keep and bear Arms” arises, not in the Constitution or the Bill of Rights, but, by implication, in civil or case law because the country’s earliest founding documents together so state. I give the three provisions:

Article I, Section 8, gives Congress two powers respecting militias. One is “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The other, immediately following, is “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

These two provisions taken together, unusually long and specific indicate the Founding Fathers’ concerns about militias. The emphasis on, and the details of, these provisions raise two questions: what considerations made the Second Amendment necessary and what ends was it intended to serve. The answers come from a glance at a possible reading of the second provision in contemporary circumstances which required arms. States and citizens might have interpreted the second provision to imply that the federal government alone would provide arms for militia members a reading posing problems for order in states, defense by states, and protection in remote areas. On this interpretation, the Founding Fathers might have realized that the federal government would incur an enormous and unaffordable cost, and wished the Second Amendment to avoid it. The Second Amendment eliminates these possible interpretations but limits the Constitutional right to arms for service in militias regulated as stated.

In addition, Article II, Section 2, gives the president command control of the militia. It states that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” This provision not only makes clear federal authority for all militias, but also places ultimate command and control in the office of the president.

In sum, these three provisions on militias and their major implications tightly restrict the scope of the Second Amendment. One, militias have three, and only three, specific purposes: execute laws, prevent insurrection, and repel invasions. Two, the federal government creates, controls, and, under the president, commands, all militias; state governments have few and minor powers. Three, an independent militia that is, a self-selected group of individuals lacks any constitutional, legal, or judicial justification. And, four, in the absence of militias, whose role and responsibilities state national guards have exclusively assumed, the constitutional right to “keep and bear Arms” is a relic made irrelevant by changing circumstances. Other rights, all traditional, respecting arms are contingent on legislative enactment or judicial articulation.

Michael L. Hays (Ph.D., English) is a retired consultant in defense, energy and environment; former high school and college teacher; and continuing civic activist. His blog, First Impressions & Second Thoughts, appears on alternate Saturdays at http://firstimpressionssecondthoughts.blogspot.com/ or lcsun-news.com.

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Their View: No militia, no Second Amendment right