That Tricky Second Amendment Thingy

wellregulatedmilitia

My social media feed has been ablaze over the last few days with arguments about the limits of the Second Amendment, and when I say “ablaze” it often feels as if my monitor is going to burst into flame from the heat.

This little cluster of twenty-seven words separated into two clauses is probably one of the most hotly debated elements of the Constitution:

“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 Second Amendment is an odd-duck in so many respects and was one of the amendments written (primarily by Madison) to help ease the anxiety (particularly in the south) of a powerful federal government taking away the rights of the states.  There are some who hold that its actual intent was to assure the southern states that they could keep their slave patrols and there is significant evidence to support this.   Of course as with anything else involving the 2nd there are powerful arguments on both sides and it is likely that this is just one of the foundational reasons.  After all, a general distrust of government was a rather common sentiment in the aftermath of the colonial period.  All of this being said, our 2nd Amendment is certainly unique in all the world.  No other country has such a right written into its foundational document, and while the Supreme Court has held that the government DOES have some interest in controlling certain types of weapons, it has sidestepped broad rulings and largely permitted restrictions only based on other constitutional provisions such as the commerce clause of Article I.

Many make the case that the right to keep and bear arms would appear to be subordinate to the militia clause in which this right is framed, but the Supreme Court has largely avoided addressing this issue directly and no broad ruling on this question has ever been issued by the court.

One might also think that so-called “constitutional originalists” such as Justice Clarence Thomas, Chief Justice John Roberts, or the late Justice Antonin Scalia would take a great interest in this question. It would seem from the wording that the original intent of the framers, as would have been understood at the time the Bill of Rights was written, was that the right to bear arms was to further the maintenance of a “well regulated militia” which could be called into service at times of national peril.   Once again, no such case has come before the court to see how justices who hold this philosophy or the more interpretive “living Constitution” philosophy would rule.

An interesting side note to this, and an angle that could be considered should we ever have a Congress interested in placing limits on the rights of individuals to keep weapons (or certain types of weapons) would be the definition of the word “militia” which might be construed by the wording in Article I, Section 8 of the Constitution to be the province of Congress:   

“The Congress shall have the power . . .”     “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;”      (Underlined emphasis is mine.)

If the “organizing, arming, and disciplining” of the militia is the province of Congress, it would seem to me that “well regulating” said militia and providing how it was to be armed and under what circumstance would be a power of Congress allowing Congress to have considerable say as to the access to weapons.  Again, this would require a Congress willing to pass such legislation which would almost certainly be challenged leaving the decision to the Supreme Court, and unfortunately I don’t see this happening any time soon.

I’m expecting the hot debate to continue.

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