You’re Misreading the Second Amendment

I can’t believe I’m having to write about this again. And again. And again. But I guess that’s the short definition of being insane American. We do the same thing over and over again, expecting a different result. We hope that thoughts and prayers will make a real difference, against all evidence to the contrary.

It reminds me of the story of the man from the flood. You know the one: where the radio announcement warned of a coming flood, but the man insists that his faith will protect him. The rains and flooding come, and the man climbs onto his roof. Someone in a passing boat tells him to jump aboard, but the man insists his faith and God will protect him. A helicopter comes, throws down a ladder and tells him to climb to safety. Still the man insists that God and faith will protect him. The man drowns, and when he gets to the Pearly Gates, he asks for an audience with God, asking why, when he had unwavering faith, did God let him die? And God tells him that He sent him a radio announcement, a boat, and a helicopter. What more did the guy want?

All this is to say that prayers are useless without action. Prayers alone, I’m sorry, don’t mean dick.

But how can we change? How can we take action? After tragedies like Uvalde, there are always immediate discussions about gun laws. At about the same time, gun advocates and lobbyists tout the virtues of the “good guy with a gun” and “gun laws only hurt law abiding citizens” and “guns don’t kill people, people kill people.” And then very little happens. I talked about some of this in a different article I wrote after another similar tragedy. That’s right. I just quoted myself. Boom.

OR action happens in a single city or state, such action being rendered ineffective because one only need drive across a state border or one town over to circumnavigate the action. Unfortunately, gun laws will only be effective if they are comprehensive. Otherwise, we’re pushing a boulder up a hill that never ends. Part of the problem is that people seem to have wildly different views on whether implementing such laws are constitutional. They cite the Second Amendment as if it were a Commandment (of course, never commenting on the irony of the fact that Thou Shall Not Kill seems entirely antithetical to 2A, but I digress), claiming that any gun law violates the amendment.

But does it?

Over the past few days months years, I have been looking at 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.”

I’ve always been fixated on a specific part of the law: the first three words. “A well regulated…” Beginning the amendment with those three words (like most of the words the framers decided to put to paper) seemed intentional to me, and I never understood why gun right activists always seemed to ignore them, insisting only on focusing on the rest: “the right of the people to keep and bear Arms, shall not be infringed.” Why, I would argue, would the framers start with those words if they did not mean them? So, I recently made a Social Media post to that effect, saying, and I quote myself, “You can’t claim to support the 2nd Amendment and be against regulation. ‘A well regulated’ are the first three fucking words.” Gasp!

Then a friend called me out for ignoring the fourth word, “militia” claiming that by doing so, I was belying my command of the English language and being disingenuous to boot. The friend then went on to claim that the framers’ intended definition of “militia” was, as quoted from a Cornell article “all able-bodied [free] male citizens of the United States and all other able-bodied [free] males who have . . . declared their intention to become citizens of the United States, between the ages of eighteen and forty-five.” (I added the word “free” in brackets here because, let’s face it, the framers certainly didn’t mean Black people, and to my friend’s credit, he had changed “male citizens” to “people” during our discussion). I did not immediately turn around and say “then, clearly, everyone who is not between the ages of eighteen and forty-five with a penis should immediately surrender their weapons. Go me. But, I did recognize it might be time to do some more investigation to see if I was simply latching onto those first three words without sufficient reason. It also made me want to understand more about the meaning of “militia” in the context of the time.

Also, because he dared impugn my English Major honor, I decided to really dig into the amendment itself, especially focusing on the grammar, proving that being an English Major isn’t actually useless. Challenge accepted.

Let’s look at 2A again.

“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.”

Now, let’s look at the word “militia.” What does it mean? What did it mean?

According to Merriam-Webster, militia has a few meanings:

1a: a part of the organized armed forces of a country liable to call only in emergency
The militia was called to quell the riot.
b: a body of citizens organized for military service
2: the whole body of able-bodied male citizens declared by law as being subject to call to military service
3: a private group of armed individuals that operates as a paramilitary force and is typically motivated by a political or religious ideology
specifically : such a group that aims to defend individual rights against government authority that is perceived as oppressive

Unfortunately, this range of meanings only causes trouble for us because the meanings are so different. So perhaps we should just look at the Constitution itself for guidance. Here are all the direct references to “Militia” in the Constitution that I could find:

Article 1, Section 8:

The Congress shall have Power….

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress

Article 2, Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

Not only did “militia” seem to have a very specific meaning to the framers, but it also seems to clearly fall under the regulatory oversight of both state and federal governments. So, whether today’s interpreters choose to define militia as “everyone between the ages of eighteen and forty-five,” it seems that the Constitution considers the group a governable body, subject to its control and regulation. So, perhaps the fact that 2A says “well regulated militia” is doubly emphasizing the framers’ intent to have regulation. Again, at the time, they certainly didn’t intend for a group of slaves to take it upon themselves to organize into their own militia, so the framers, right or wrong, absolutely had parameters in mind when they created the amendment. But I digress. Again.

The analysis by Cornell Law School goes on to annotate these clauses in the Constitution, including references to subsequent laws and definitions. It’s a lot to quote word-for-word, so I will paraphrase. In short, the government has been able to call upon state militias to help put down armed insurrections and civil war (and also to serve its darker purpose of suppressing the Native Americans, which we conveniently like to ignore), and such actions have been supported by law. More than that, according to the act of February 28, 1795, “Sec. 4. And be it further enacted, That the militia employed in the service of the United States, shall be subject to the same rules and articles of war, as the troops of the United States.”

The fact that the government called upon militias to serve the nation indicates that they are specific, recognized entities, not to be confused by the population at large. Furthermore, this act clearly shows the fed’s intention for the use of militias to be regulated.

Upon reading further into Cornell’s annotations, I discovered where my friend got his definition of militia, and it was, almost word-for-word, copied, but the definition was taken out of context. Here is a larger excerpt:

Under the National Defense Act of 1916, the militia, which had been an almost purely state institution, was brought under the control of the National Government. The term “militia of the United States” was defined to comprehend ‘all able-bodied male citizens of the United States and all other able-bodied males who have . . . declared their intention to become citizens of the United States,’ between the ages of eighteen and forty-five. The act reorganized the National Guard…

The word militia, far from meaning every able-bodied male of a certain age, meant very specific groups that were ultimately redefined to be the National Guard. This more generalized definition also came long after the framers actually wrote the amendment itself.

But don’t take my word for it; read it yourself.

Even Hamilton incontrovertibly linked the idea of regulation to the concept of militia in The Federalist Papers No. 29, saying “THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.”

That’s a lot to take in, I know. May be time to take a quick intermission. Go take a leak. Drink some water. Maybe drink something stronger. you’re gonna need it, cuz grammar jargon incoming. Ready?

Now that I have hopefully established the concept of militia to mean more than the general American horde, let’s get to the fun grammar stuff.

Unfortunately, the Second Amendment is not as clear as it could be. Perhaps this is why it is so heavily debated. In fact, 2A is kinda a grammar cluster fuck. What do I mean? Let’s break it down, grammar Nazi style.

In order to have an independent clause, you need a subject and a predicate. The only kinda independent clause in 2A is “the right of the people to keep and bear Arms, shall not be infringed.” I say “kinda” intentionally, because the problem with this independent clause is that it has a comma between the subject and the predicate. One of the only ways that’s really allowed to happen is if an appositional phrase is placed between subject and predicate. In such a case, the independent clause exists on both sides of the appositive. Brain hurting yet? Sorry. Let me help with an example: I can say something like “Fido, my fat puppy, eats too many treats.” Subject “Fido” is separated from predicate “eats too many treats.” Despite this separation, the sentence is considered complete because it has both requisite elements, and really, what the sentence is saying is “Fido eats too many treats” with a dependent descriptive phrase in the middle telling us his treat eating habits are to blame. Please don’t @ me for fat shaming a hypothetical Fido. What does this have to do with 2A? Glad you asked.

Perhaps that troubling comma is telling us we’re reading the amendment incorrectly. Technically, following the above rules of grammar, 2A seems to be trying to make “A well regulated Militia” the subject, followed by a dependent clause, “being necessary to the security of a free State,” appropriately separated by commas. Ideally, the sentence should either follow up with another dependent, descriptive phrase, OR hit us with the predicate of the subject. In this case, it doesn’t do either… not really. Instead, it follows with another subject with “the right of the people to keep and bear Arms”. Then it does that weird thing by adding a comma and seeming to follow it up with the sentence’s predicate “shall not be infringed.” Because of this comma, it can be argued that it’s unclear whether the subject of the predicate is supposed to be “A well regulated Militia” or “the right of the people to keep and bear Arms.” In other words, like Fido’s sentence above, the framers may have been saying, “A well regulated Militia shall not be infringed.”

Traditionally, we do not interpret 2A in this way. Instead, we go off what sounds correct to the ear to derive what we imagine was the proper meaning. We assume that they meant to say, “the right of the people to keep and bear Arms shall not be infringed.” Without that dubious comma. The comma has the power to change everything. However, we assume that “A well regulated militia” is not the subject of the sentence, therefore placing it into the context of a subordinating clause that includes “being necessary to the security of a free State.” I am willing to make this leap with you. If we do this, however, we must also accept that the following independent clause is incontrovertibly linked to the dependent clause before it, thereby establishing a condition by which the writers intended to frame their rule. If they had not intended that condition, they would not have put it in there.

In effect, they wanted to protect the right of the citizenry to bear arms (which in and of itself is an ambiguous term–IE: it does not say “the right of the citizenry to wield guns“), BECAUSE a WELL REGULATED militia is necessary to the security of a free state. It does not, in fact, say, “Any bonehead who wants a gun, whether properly trained, vetted, or licensed, being necessary to the security of a free state, the right of the people to keep and bear guns shall not be infringed.”

Perhaps there isn’t a correct interpretation, and that’s what’s so frustrating. But be that as it may, in reading more about militias and studying the Second Amendment in general, I contend that the need for regulation seems clear and perfectly in line with the framers’ intentions.

Why? Because you can’t ignore those first three (or four) words for your convenience. Either all the words matter or none of them do.

And because our children deserve better than the status quo. So far, gun advocates have gotten their wishes, and very few effective gun control regulations have come from these tragedies. Clearly, the do-nothing-actually-different-from-what-we’ve-always-done strategy isn’t working.

TLDR: The framers of the Second Amendment made some mistakes with grammar, but they clearly intended for there to be regulation.