by

The Vague Main Clause of the Second Amendment

secondamendment

I have often reflected on the problematic vagueness of the initial absolute adjunct clause of the Second Amendment. Reading about yet another university massacre last week, the topic came to mind again. But this time I realized that the worst thing about the amendment may be the main-clause syntax.

The absolute adjunct clause (“A well-regulated militia, being necessary for the security of a free state”) has been much discussed. Its comma is extraneous under modern punctuation rules (an unmotivated comma between subject and predicate is simply a mistake), so ignore that. And the syntax and semantics are the same as in the underlined part of This being so, we were forced to alter our plans: The phrase this being so is understood to mean “because this was so.”

So the framers of the Second Amendment meant something like “Because a free state needs to maintain a well-regulated militia in order to protect its own security … ” followed by the main clause.

Much legal argument has been devoted to the issue of whether the mention of state militias was crucially restrictive. Since 18th-century state governors couldn’t call on thousands of armed police and helicopter loads of National Guard personnel, they had to call out the local yeomanry and tell them to bring their personal muskets or shotguns. Perhaps today the Second Amendment could be interpreted as permitting a state to forbid weapons in people’s homes, and keep all the firearms in locked cabinets down at the police station or the armory.

The Supreme Court has increasingly tended to rule otherwise: It has repeatedly defended the right of individual citizens to keep and carry their own firearms. It would have been good if the framers could have given us clearer guidance than a vague adjunct with an inexplicit suggestion that it was supposed to convey a rationale.

But reading the sad news of Elliot Rodger’s rampage last week I realized that the main clause of the Second Amendment is perhaps even more unfortunate. “The right of the people to keep and bear Arms, shall not be infringed” is what it says (and again that comma is an error under today’s conventions, so let’s ignore it). What a terrible place for an agentless passive! Infringed by whom? The question is absolutely vital.

Early elaborations of the meaning of the amendment suggested that the amendment was supposed to guard against any move by the federal legislature to curtail the rights of the people in the individual states to keep and carry weapons. The states needed to be able to defend themselves (the framers thought) against federal tyranny.

But if instead shall not be infringed means “shall not be infringed by any authority, not even elected governments of states, counties, cities, or towns,” then no gun control law of any kind is compatible with the Constitution as it stood by the end of 1791.

The relevant corpus of legal reasoning is hugely complex, but increasingly it looks as if the latter interpretation is becoming the only one that the Supreme Court will uphold: Regardless of the will of the electors, no level of government can limit a lonely, mentally ill, sexually frustrated student’s right to buy a couple of Sig Sauers and a Glock 34 plus a few hundred rounds of ammunition for his mission of retribution.

Every few months, in perpetuity, we will see an unstable young student (almost always male) take out his guns and ammunition and head out across campus, murdering fellow students or faculty at will. Despite the “longstanding practice of prohibiting certain classes of individuals from possessing firearms—those whose possession poses a particular danger to the public” recognized by the First Circuit in United States v. Rene E., it doesn’t look as if the police will ever be more effective in stopping these massacres than the Santa Barbara police were in stopping the deranged Elliot Rodger (they spoke to him, but couldn’t see a solid argument that he posed a danger to the public).

Mass shootings on campuses are now unheard of in Britain. The awful Dunblane school massacre back in 1996 traumatized the nation, and rapidly led to gun laws so strict that none of us are permitted to have Sig Sauers or Glocks in the drawers of our nightstands. That doesn’t mean Britain is immune to gun crime: In the Cumbria shootings of 2010 a properly licensed shotgun and rifle were used in a motiveless rampage killing of 12 random people. But the culprit in this unusual rural event was no callow youth in a dorm room; he was a 52-year-old grandfather with 36 years of legal shotgun ownership behind him. The key point is that in Britain an embittered university student with a grudge against his peers cannot go to a gun store and buy handguns to implement a Facebook-advertised revenge.

In America, it looks as if things will always be otherwise: Gun-control movements are going nowhere, and even some liberals advocate giving up on them, because all that discussing the issue ever does is make legal gun-owners paranoid.

I just hope it is not because the badly formulated syntax of the Second Amendment failed to make clear its intent.

Return to Top