As more cases of school shootings occur around the country, the nation reflects on solutions to this issue. The main concern when assessing these options is the constitutionality of these approaches. Gun control policies are constantly being challenged as it is argued that they violate the right to bear arms as stated in the Constitution. Different interpretations of the wording of the Second Amendment have been offered, challenging whether such right is given as an individual right or as a collective right solely given to state-organized militias for protection against the federal government. I suggest that the second amendment stands as both an individual and a collective right. It creates an individual right to keep and bear arms to satisfy a collective right to form part of a state militia group.
The second amendment is comprised of two elements: a prefatory clause (a well-regulated militia being necessary to the security of a free state) and an operative clause (the right of the people to keep and bear arms shall not be infringed).
In the English language, the prefatory clause is independent of the operative clause and does not enhance or complement the operative clause unless the operative clause is ambiguous. Admittedly, the operative clause is, with no doubt, unambiguous. It is clear that the right of individuals to bear arms is not to be impaired. However, without its connection to the operative clause, the prefatory clause is the one that becomes ambiguous. It is ambiguous not in the sense that it is an unclear statement, certainly a militia is necessary to protect the people from the tyranny of a federal government, but without its connection to the operative clause its purpose of being included in the amendment is uncertain. If the framers intended to grant all individual citizens, the right to keep and bear arms, indistinctive of whether they belonged to a state militia or not, then stating the need for a militia is irrelevant when the intention of the bill of rights was to list out the rights of the people. To propose that the prefatory and operative clauses are independent of each other is to suggest that the prefatory serves no function in the bill of rights other than as a commercial break to remind the readers of the importance of a militia. On the contrary, the operative clause is not a commercial break, nor can it be disposed of as something of no worth. Chief Justice Marshall in Marbury v. Madison argued that it cannot be presumed that any clause in the constitution is intended to be without effect.
The prefatory clause enunciates the reason for the operative clause. Namely, the need for a state militia to secure the freedom of the people against the federal government is the reason why the individual right to keep and bear arms is given to the people. The Second Amendment does not create an individual right to own weapons for seemingly any lawful purpose, as the individual rights theorists advocate. An additional connection exists between the two clauses; the term “militia” in the prefatory clause and the phrase “bear arms” in the operative clause are both military terms. “Militia” refers to a military force formed by civilians for emergency purposes. The general concern the states had when forming the federal government was the fear of the federal government suppressing the power of the states. It is no surprise that to guarantee the freedom of the states and of the individuals from an oppressing and tyrannical federal government, the framers drafted an amendment that guaranteed both the state and the individual the right to own and carry weapons for protection against the federal government.
The phrase “bear arms” originates from the Latin term “arma ferre,” which means “to bear equipment of war. The phrase “keep and bear arms” was read as referring to the possession and use of weapons in connection with militia service. The word “bear” does the lion’s share of the work in this regard. Adherents to the militia-based reading of the Second Amendment argue that the phrase’s plain meaning is military. The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is to serve as a soldier, do military service.
The prefatory clause and the connection between both clauses refer to a collective right, while the operative clause refers to an individual right. The term “the people” is used throughout the constitution, except within the preamble, to make mention of citizens as individuals. For example, the Fourth Amendment guarantees the people the right to secure their property against searches and seizures. Property is owned individually and not collectively, thus constituting the Fourth Amendment as an individual right while consequently giving the term “the people” an individualistic meaning. Wherefore, the right to keep and bear arms is indeed an individual right, which nonetheless does not mean that the right is given to all people without purpose.
To understand the meaning and purpose of the wording of the second amendment more clearly, we can refer to the country’s history and traditions. Many gun advocates suggest that the country’s tradition shows a long-standing history of gun ownership. Individuals certainly possessed guns in the past for hunting and self-defense purposes, but it was not until the threat of English forces that the right to own guns was acknowledged. During the 18th century, colonists became weary of the increasing number of English militaries on their land and feared the threat of a standing army. Their fears became a reality during the Boston Massacre, when English soldiers killed 5 men. Later, during the Revolutionary War, it became clear that armed militias were vital to preserving their free state. Colonies, however, did not have the economic means to provide weapons to their militias. Because of this, it became the responsibility of all men to own and possess their own weapons and to be ready to report for duty when called upon to defend the land and their rights. There was an inherent understanding that the individual right to own and carry weapons was directly connected to their right to be part of their local militia. Without the right to own guns, they would have been unable to belong to their local militia and defend their land from a standing army. The responsibility of owning a gun, at least at that time, would have had no purpose were it not for the threat the English military posed to their freedom and security.
The right to own weapons for the preservation of a free state did not exist without regulations. At the time, the larger cities in the colonies passed laws inhibiting the use of firearms as a means of protection for individuals’ homes. New York City, Boston, and Philadelphia, among other cities, placed bans on the discharging of weapons within their cities. New York prohibited discharging guns 3 days before and after New Year’s. Boston passed a statute banning the firing of any weapon. Philadelphia banned the discharge of weapons unless one received a permit from the city. Other laws similar to these were enacted in smaller cities during the time of the 13 colonies.
This hybrid right allows for individuals who are part of a state-organized militia to own and possess weapons in an individual capacity for the protection of their freedom and the freedom of the state against the federal government. This right implies that individuals have the right to belong to their state militia, but not without regulations from their state. The states also have the power to regulate the weapons owned by members of their militias, which are only to be used for protection against a tyrannical government. The second amendment does not grant individuals the right to own guns for hunting or for protection against other individuals. Instead, law enforcement has been tasked with the duty to protect communities. If voters desire to have the right to own guns for reasons other than military purposes, they have the power to influence the government to guarantee that right for them.
This blog post is part of the CIMA Law Group blog. If you are located in Arizona and are seeking legal services, CIMA Law Group specializes in Immigration Law, Criminal Defense, Personal Injury, and Government Relations.
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