Why the Second Amendment is so Complicated

"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. These 27 words have caused almost as much controversy over the history of the Republic as the Amendment's oft-discussed next-door neighbor, the first. To most, those last 14 words, "the right of the people to keep and bear arms, shall not be infringed" says it all. You can't restrict people's access to guns, right? So all those gun control laws must be unconstitutional, right?

Well, as with most parts of our Constitution, it's never quite that simple. Before I go on, I should make a brief disclosure. I am a Democrat, and I support many, although not nearly all, forms of gun control. Amongst those I support are mandatory safeties, required licensing, 5-day waiting periods, the assault weapons ban and background checks, including at gun shows. While I believe I will present a balanced view in this article, it is only fair that any reader know my political tilt when reading this article, in case you believe it has affected what I have written.

Note also that it is not my intention with this article to give an answer. I will not state whether I believe these gun control methods are or are not constitutional. In fact, on some level, I'm still undecided myself. My aim with this article is merely to educate you on what controversies of interpretation exist, and explain why the amendment is not so easy to understand. I leave the final verdicts to you.

When interpreting the Second Amendment, first we must ask the big questions. First, does the Second Amendment guarantee an individual's right to own a gun, or merely require that the Federal Government maintain for each state a well-armed, well-regulated militia? Second, if there is an individual right to own a gun, how many restrictions, if any, is the government allowed to place on that individual?

To answer this question, we can use four approaches, depending on how you believe the Constitution itself should be interpreted. First, there is the Strict Textualist approach, where we look to the specific written words, and nothing else (note that this is how we interpret most laws, and the approach generally used by Supreme Court Justice Clarence Thomas when interpreting the Constitution). Second, there is the Original Intent approach, where we look to what the authors intended the Amendment to say (this is the approach generally used by Supreme Court Justices John Roberts and Samuel Alito). Third, there is the Historical approach, which looks at how the Amendment has been used and interpreted over the whole history of the Republic, with an eye towards favoring old, time-tested interpretations (in combination with Original Intent, this is the approach generally used by Supreme Court Justice Antonin Scalia). Finally, there is the Functionalist approach, that looks to what the Amendment actually means in today's world (this is the approach generally used by Justices Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens, and in combination with the Historical approach, by David Souter and Anthony Kennedy).

While you may have your own preferred Constitutional interpretation method, you quickly find that in reality, none of these approaches give us an easy answer to the big questions we asked.

Textualism

Looking at the text of the Second Amendment, we find that the answer to our big questions is not an easy one. Here is where the fact that the last 14 words, "the right of the people to keep and bear arms, shall not be infringed" would seem to give an easy answer. But this raises two issues. First, it seems odd to interpret a sentence by only reading part of th sentence, instead of the whole sentence. Second, the oddly placed comma between "arms" and "shall" raises legitimate question as to what the phrase "shall not be infringed" actually applies to.

So, we probably should not separate out the sentence to interpret it, but look at the whole sentence. "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." Any English teacher will tell you, this is a messed up sentence. There is no clear subject. Is the subject "A well regulated militia," "the right of the people to keep and bear arms," or both? Why does this matter? Well, what is "the right of the people to keep and bear arms?" If that is the subject, or a subject, then it seems that in fact, the government cannot restrict the people from owning guns. But, if the phrase is really a descriptor, then the well regulated militia is being described as the right of the people to keep and bear arms, and it is only the existence of the well regulated militia that cannot be infringed.

Now, perhaps, you see the difficulty. The Textualist interpretation of the Second Amendment really comes down to a point of grammar. Is "the right of the people to keep and bear arms" a subject, or a descriptor? That is for you to decide.

Original Intent

Original Intent is always a very murky area of Constitutional Law. After all, whose original intent are you looking at? The Framers as a whole? Well, most anyone who studies American history will tell you, the Framers of the Constitution disagreed on a lot. Most of the Constitution, after all, is a series of compromises. The Southern states wanted slaves to count as people for representation but not for taxes, the North wanted the opposite, thus they counted as 3/5 a person for both. The small states wanted equal representation for each state, the large ones wanted proportional, thus a House and a Senate. The point is, the Framers were never of uniform mind, so there is no singular "Framer" whose original intent we can latch onto.

Instead, the best way to use Original Intent is to look at the wording of the Amendment. This my sound like Textualism, but with one key difference. We don't just look at the words, but we use the words to divine what the writers of the words likely meant the words to mean. So, what do we get from the wording of the Second Amendment?

We know many of the Framers were revolutionaries, who had just defeated the British. Their support for well regulated militias is quite clear and obvious. Militias were necessary to keep the people free. That the Framers wanted an uninhibited militia is doubtless, but what about the right of the people? Well, the word "people" tells us something right there. "People" at the time was generally used to describe people as a group, not individuals. The Fifth Amendment, written at the same time, was explicitly meant to protect individuals, and so the wording chosen for it was that "No person" shall be deprived of due process, have to testify against himself, or be deprived of any of the other rights of the Fifth Amendment. So, the fact that "people" was used instead of "person" would seem to imply that maybe no individual right was intended.

So, is that it? Did the Framers intend to guarantee the "people" the right to bear arms through a well regulated militia, but not create an individual right? Well, unfortunately for us, the "people"/"person" distinction in the Constitution is not perfect. The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fourth Amendment grants an individual right here, no one can be subjected to an unreasonable search or seizure, yet the word "people" is used. The one caveat to this use is that the Fourth Amendment goes on to describe how warrants can be attained, and that is the method by which peoples' rights against unreasonable search and seizure is protected. It could be that the Framers meant the first half of the Fourth Amendment to speak of a general right of the people, while the second half was what applied to individual persons (and in fact, the word "person" is used in the second half of the Fourth Amendment).

The point is, Original Intent also does not give us a clear answer to our big questions on the Second Amendment. What did the Framers mean when they spoke of "the people"? That, too, is for you to decide.

History

There have been restrictions on gun ownership since the dawn of the Republic. Plain and simple. There have been restrictions on who can own guns, what guns can be used for, and when guns can be used throughout the history of the United States. So, does that mean our historical analysis is actually easy? Under a historical analysis, gun control laws are automatically constitutional? Of course it's not that easy.

The first dagger in the simplicity of this approach is that the Bill of Rights, which includes the Second Amendment, originally applied only to the Federal Government, not the States. In the 1833 case Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights was written to protect the people from a powerful Federal Government. Since people had more political power in the States than in the Federal Government, the thought was that the Bill of Rights need not apply to the States. As a result, states could do whatever they wanted, as long as they did not violate the restrictions set upon them b Article I, Section 10. This meant States could restrict free speech, take land without just compensation, even try you without a jury, or forbid you to be represented by a lawyer. Since nearly all of the early gun control laws were passed by States, mos of these laws were not even written with any consideration towards the Second Amendment.

Now, the Bill of Rights we know today does apply to the states, so when did that happen, and how does that affect the historical analysis? Well, the Bill of Rights was applied against the states through a process known as "incorporation." Throughout the 20th Century, various portions of the Bill of Rights were taken to be fundamental to an individual's right to due process of law. Since states are prohibited from preventing an individual's due process rights under the Fourteenth Amendment to the Constitution, the Fourteenth Amendment has been used to apply most of the Bill of Rights to the States.

What does this mean for Second Amendment history? Well, very little. While much of the Bill of Rights has been incorporated, the Second Amendment still has not. Why? Well, it's never come up. The Supreme Court has yet to hear a case challenging a state's gun laws, and as a result, the Supreme Court has yet to rule on whether the Second Amendment now applies to the states. There is very little doubt that if an individual right to own a gun is granted by the Second Amendment that the Court will then rule that this is a due process right, and then incorporate the Second Amendment. However, the whole questions we are trying to answer here is whether or not such a right exists.

It seems then, that since the Second Amendment has yet to be applied to states, we must ignore state laws and practices when doing a historical analysis of the Second Amendment. So, what has the federal practice been? Very mixed. For most of the Republic's history, the Federal Government has considered weapons an issue for the states. When restrictions have been passed, they have been passed during emergencies (the Civil War, World War II, etc.) and then quickly repealed when the emergency passed. This has changed in recent history, however, as gun control has become more of a national issue. Numerous laws have been passed in recent decades, culminating in the Brady Bill and the Assault Weapons Ban of the 1990's. So, what do we get from this?

If the Second Amendment really created an individual right, would the gun laws have been ok during the Civil War and other such emergencies? Well, we have a history of allowing the Constitution to be bent a little during emergencies, so maybe the existence and acceptance of those laws wasn't a statement that the Second Amendment grants no individual right. So, other than emergencies, we have a long history of the Federal Government not restricting guns. Does this mean the Federal Government felt it unconstitutional, or merely that it felt the matter was best left to the States? How does the modern movement towards restrictions play into this history as well?

Once again, we see there is no simple answer. Really, it all depends on how you read history, and that, I will leave to you.

Functionalism

Finally, we get to Functionalism. This theory is often embodied by the idea that the Constitution is a "living" document whose interpretation changes with the times. While Original Intent looks to how the Framers' intended words would apply to today's world, Functionalism goes a step further and asks how the Framers would have written the Constitution had they lived in today's world. In other words, with the world being what it is today, what would the Constitution look like?

I would note, this view of the Constitution is very controversial. It has many supporters, but also many detractors. This perspective has been used for good and ill in our nation's history. Great rulings like Brown v. Board of Education or Loving v. Virginia were made under this theory. However, also made under this theory were controversial decisions like Roe v. Wade and universally rejected decisions like Dred Scott v. Sandford. So, already we deal with some challenge just by looking at the Second Amendment this way.

This is where, however, statistics come in. Surely it is accepted that it is a function of government to protect citizens from other citizens. This means the government has a right to do what is necessary, within constitutional limits, to reduce gun violence, and gun accidents. Do we really think that if the Framers came to this world, and saw that we could prevent thousands of murders or accidental deaths, they would oppose it? Of course not, the Functionalist would say, so long as these restrictions are balanced against basic liberties, and are therefore not unreasonable. So, gun control that successfully reduces violence and accidents, while not dramatically curtailing civil liberties would be ok.

So, this means Functionalism, at least gives us a clear answer, that there is no absolute individual right to own guns, right? Do you really think I'd make it that simple? Of course not. First of all, the fact that we recognize some liberty would imply that there may be an individual right. Or is there? Obviously we can't outright ban guns, but is that because it would be unconstitutional, or merely because it is politically impossible?

Also, what about statistics that show that gun control may not reduce violence and accidents? After all, if you take guns away from the law abiding citizens who follow the control laws, doesn't that leave a higher percentage of guns in the hands of criminals, with more people unable to defend themselves? If the Framers came today and saw gun control actually makes thing worse, wouldn't they say "Aha! No gun control!"

But gun control does undeniably reduce accidental deaths. Additionally, it makes it harder for criminals to get guns. Not impossible, but harder.

So, functionally, we actually have a mess. Does the modern world require gun control? Does it require that individuals have a right to own guns? Does it require that the Constitution stay out, and let politics play out its course? That too, is for you to decide.

Conclusion

Who would have thought that 27 words can play such havoc. They seem so deceptively simple, yet the Second Amendment is in reality one of the most complicated parts of the Constitution. Does the Second Amendment guarantee an individual right to own guns, or merely that there will be a well armed, well regulated militia? If there is an individual right, what restrictions, if any, can be placed on it?

That, of course, depends. Is "the right of the people to keep and bear arms" a subject phrase or is it made a descriptive phrase by the comma placement? Does "the people" mean people as a group, or individual persons? How do we read the history of the Federal Government's approach to gun control laws, and what meaning, if any, should the history of state gun control laws be given in this interpretation? If the Framers were alive today, in this world, would they support gun control?

The answer to these questions are not easy, and they have been debated for over 200 years. They likely will be debated for over 200 more. I hope this has been helpful to you in beginning to understand just why this Amendment, these 27 words, are so very complex.