Recently, I had a rather long Twitter debate with some liberal friends about the Second Amendment. As much as I like Twitter, a few dozen characters (at one time) is not enough space to fully explain the right to keep and bear arms. Thankfully, I have a blog (as members of Congress might say) “to revise and extend my remarks.” So here goes.
The Second Amendment 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.
The text of the Amendment has two distinct parts: a prefatory clause (or, as it is sometimes called, the justification clause) and an operative clause. For clarity I will identify each clause separately.
The prefatory clause:
A well regulated Militia, being necessary to the security of a free State …
And now the operative clause:
… the right of the people to keep and bear Arms, shall not be infringed.
The big argument between conservatives and liberals stems around how the prefatory clause interacts with the operative clause.
Essentially, which comes first, the chicken or the egg? Does the existence of a well-regulated militia flow from the citizen’s right to keep and bear arms? Or does the citizen’s right to keep and bear arms flow from the existence of a well-regulated militia?
If conservatives are correct, then the right to keep and bear arms should not be infringed; this right is not dependent upon the existence of well-regulated militia. But if liberals are right, then the right to keep and bear arms is confined to the construct of a well-regulated militia; therefore, if a citizen is not a member of the military or the police, his right to weapons may be infringed by the State because, in point of fact, only the military has the constitutional right to bear arms.
Since this is a question of constitutional interpretation, it is customary to use well-established canons of statutory construction to reach the correct answer.
One such canon, noscitur a sociis, “counsels that a word is given more precise content by the neighboring words with which it is associated.” United States v. Williams, 553 U. S. 285, 294, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). This canon is probably the most important canon for examining the Bill of Rights.
Some quick background: An amendment to the Constitution is enacted by way of a two-step process. First, both houses of Congress pass the proposed amendment by 2/3 votes. Then, the amendment is sent to the States for ratification; if 3/4 of the state legislatures ratify the amendment, it becomes a part of our Constitution.
When the Bill of Rights was enacted by Congress, the twelve proposed Amendments were all on one document. (I say, “twelve proposed amendments,” because two of them failed to gain immediate ratification; one was never ratified, while the other proposed amendment took 203 years to be ratified.) This single document was sent to the States for ratification. The States, in turn, ratified ten of these proposed changes, making them the first ten Amendments to our Constitution.
When you think of the Bill of Rights as one document, and not ten separate Amendments, you will see just how important noscitur a sociis is to the proper interpretation of the Bill of Rights. Being part of the same document, ambiguities found in one Amendment can be explained by unambiguous language found in another Amendment.
So with a view toward a proper interpretation of the Second Amendment, one should examine the Third Amendment, which reads:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
While the Third Amendment does not talk about weapons, it does talk about the quartering of soldiers. There is no ambiguity here… If we are at peace, the government cannot commandeer a person’s home to house soldiers without the owner’s consent.
Before we go any further, I don’t want anyone to get the wrong impression here. I have a great deal of respect for the military. If an Army captain were to ask to stay in my house, I would be quite hospitable. But that was not the view of the quartering soldiers in the 18th Century. Before the Revolution, it was common for British soldiers to use force to take a colonist’s home – even during peacetime. The Third Amendment restricts this practice. As such, it is unconstitutional for soldiers to force citizens to give them room and board during peacetime.
Clearly, the Third Amendment demonstrates that the framers of the Bill of Rights had a greater respect for the people’s rights than they did the military’s rights. So with this in mind, if liberals are correct, why would the framers have used the Second Amendment to subordinate “the right of the people to keep and bear Arms” to military regulation?
I don’t think they did.
Back in 1791, there was no telephone. There was no internet. There was no instant communication. Short of running for help, there was no way that a citizen could get assistance in an emergency, such as if, let’s say, a few soldiers wanted to commandeer his home in violation of the Third Amendment. Therefore, since running for help would have necessitated an abandonment of the premises, thereby playing into the hands of the soldiers seeking quarter, the only practical means a citizen had to protect his Third Amendment right was to use reciprocal force.
So let’s imagine what would have happened if an Army captain had tried to commandeer a citizen’s home in 1791, during peacetime.
“Sir,” says the officer, “My men need your house.”
“Captain,” says the homeowner, “the Third Amendment says you can’t take my home. If you don’t leave, I will have to shoot you.”
Now if we adopt the liberal view of the Second Amendment, the conversation might have continued like this:
“Sir,” says the officer, “are you part of a well-regulated Militia?”
“No, Captain, I am not.”
“Well, sir, the Second Amendment says you are not supposed to have a gun unless you are part of a Militia. We are part of a Militia. We have the right to your gun. Give us your gun or we will place you under arrest.”
“Drat! You got me. Here it is.”
In the above hypothetical scenarios, as long as the citizen has a gun, he has a chance of protecting his Third Amendment right. But once he forfeits his gun, he also forfeits his Third Amendment right.
In view of noscitur a sociis, the liberal explanation for the Second Amendment becomes absurd. The people’s right to keep and bear arms does NOT depend upon military regulation. Rather, military regulation depends upon the people’s right to keep and bear arms.
Yes, the security of a free state necessitates a well-regulated militia. But in order for the militia to be well-regulated, the people’s right to keep and bear arms must not be infringed. Otherwise, the militia will have no accountability. And if left to their own devices, an unregulated and unaccountable militia will treat constitutional provisions, such as the Third Amendment, like toilet paper.
Now liberals will take this to its extreme and ask, “Well, if the right to keep and bear arms should not be infringed, then I guess you are saying that citizens should have the right to keep and bear rocket launchers, tanks, or weapons of mass destruction, right?”
That’s a fair question, which I will now answer — using another canon of statutory construction – the so-called, “Mischief Rule.”
In Heydon’s Case, 76 Eng. Rep. 637 (Ex. 1584), the English Court of the Exchequer directs courts to look at the “mischief and defect” that the statute intended to cure. For over 400 years, courts have followed this directive. See Elliot Coal Mining Co. v. Director, Office of Workers’ Compensation Programs, 17 F.3d 616, 631 (3d Cir. 1994).
In our discussion, the “statute” is the Second Amendment. The question before us is, “What ‘mischief and defect’ was the Second Amendment trying to cure?”
Given that the purpose for the Second Amendment was to promote “well regulated” militias, it stands to reason that the “mischief and defect” to be cured is the insecurity that comes from having an unregulated and out-of-control military.
Fortunately, we do not have an out-of-control military today. Our forces are the bravest, and perhaps, the most honorable forces in the whole world. And as best as I can predict, I don’t see this changing in my lifetime. But if the military ever were to step out of line, the purpose for “the right to keep and bear arms” would be to restore order to the military, to keep it in check. As such, the Second Amendment must protect a citizen’s right to keep and bear those arms which are necessary to bring regulation to a rogue military force.
To this end, weapons of mass destruction would be unnecessary because their use — under any circumstance — would certainly kill innocent civilians. Therefore, weapons of mass destruction — be they nuclear, biological, or conventional — would not be protected by the Second Amendment. On the other hand, tactical weapons that could be used without causing collateral damage to innocent civilians would be protected by the Second Amendment as these weapons could be used to regulate an out-of-control military force without creating the very insecurity that the Second Amendment attempts to prevent.
With that being said, the pooling of armaments together by citizens — such as by so-called, “citizens militias” — does invite some measure of regulation by state and local governments. If you want to have a militia, according to the Second Amendment, it has to be well-regulated. So while any citizen has the right to keep and bear those arms which are necessary to hold the military in check, this does not imply that citizens may create militias that are so isolated from proper regulation that insecurity is created.
So if you want to form a militia and pool your money together to buy a rocket launcher or two, or maybe an armored personnel carrier, go right ahead. But understand this…. You are now subject to regulation just like the military itself is, meaning, the commander-in-chief of your group is now the Governor of your state, and in some instances, the President of the United States.
In short, by viewing the Second Amendment in light of the Third Amendment, we find that its purpose is to provide security by keeping honest soldiers honest. To this end, the Second Amendment protects the individual citizen’s right to keep and bear only those types of weapons which are necessary to hold the military accountable — if and when the military ever runs afoul. However, as individual citizens pool their resources together to form small armies of their own, they become subject to the regulations of the state and federal governments just as would the official army or national guard would.