Arguing the Second Amendment: The Heller Decision

While the Constitution is in many ways a beautifully written document, the framers deserve no gold stars when it comes to how they phrased the Second Amendment:

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 conflict resolved by the Supreme Court in DC v Heller today arises from the ambiguity created by the frankly flowery language.

In a nutshell: Does the Militia preamble part of the amendment limit the right or not? If it doesn’t, why is it in there? (Because – say the Supremes – it’s basically an example of why it’s necessary not a limitation.)

If it is limited to militias, why does it speak of the ‘right of the people’? Doesn’t that sound like an individual right? (And wouldn’t that lead to an absurd result?)

I’m no gun nut, so let me say this from a strictly legal standpoint: Scalia’s majority decision striking down DC’s ban on handguns is much less tortured than Stevens’ dissent.  As usual, he comes off like a jerk, especially when describing the minority position.

But the dissenters have failed to convince me that ‘to keep and bear arms’ doesn’t mean what it sounds like it means.

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Comments (5) Read through and enter the discussion with the form at the end
Paul Harris - June 27, 2008 8:23 AM

"the framers deserve no gold stars when it comes to how they phrased the Second Amendment"


I don't think the problem is with the Framers. The problem is attempting to understand this amendment outside of its historical context. Putting the amendment into historical context was one of the things those in the majority tried to do in deciding on their interpretation of amendment.


We can attempt to understand the meaning of this amendment by considering what the reaction would have been to attempts to impliment a DC type ban, or some of the other more restrictive regulations in place today, on the types of firearms that were in common use by those living in the post Revolutionary War period.


We could also consider what the reaction would have been to attempts to limit firearms ownership to only those that were serving in a State run militia.


If you do this I believe you come away understand that during this period the 2nd amendment was viewed as an individual right, self-defense was a legitimate reason for owning a firearm, and that keeping/bearing a firearm in such a way that it could be effectively utilized for self-defense was considered a reasonable exercise of this right.

Whit Fell - June 27, 2008 10:11 AM

The militia included and includes all able bodied men and boys who would respond with their weapons when called. No weapons - no militia.

Thorkyl - June 27, 2008 11:11 AM

"the framers deserve no gold stars when it comes to how they phrased the Second Amendment"

I agree, It should have been worded...

The right of a citizen, to own, carry, and use a weapon for legal purposes,
including but not limited to, challenge of the tyranny of the government,
hunting, and self defense, shall not be challenged by,
or regulated by the government.

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Ron Mears - February 12, 2011 4:06 PM

If the framers had not intended for individuals to keep and bear arms whether affiliated with a militia or not it seems reasonable to think that the entire country would have been disarmed by 1810. It was not done.

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