“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.”
Families of the children killed in the Newtown, Conn., school shooting two years ago have filed a lawsuit. I hope they win. But my attention was drawn to a strange paragraph in a story about the lawsuit: “Bill Sherlach, whose wife, Mary, was killed in the 2012 shooting, said he believes in the Second Amendment but ... that the gun industry needs to be held to ‘standard business practices’ when it comes to assuming the risk for producing, making and selling a product.”
The sentiment is unexceptionable, but I found myself wondering which Second Amendment he believes in: the one the First Congress wrote or the one advertised by the National Rifle Association’s propaganda. There is a difference.
There is, in fact, no mystery about the Second Amendment’s original meaning, textually or historically. Textually, the relationship between its two linked clauses could not be clearer: The “right” is essential to the maintenance – i.e., the “keeping” of weapons – for the use of militias. “The people” – the public in its collective sense, as similar uses of this substantive elsewhere in the Bill of Rights show – are assured the right subject to its effective regulation. It is constitutional boiler plate that all such liberties are subject to “time, place and manner” restrictions.
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The arms at issue when the Second Amendment was framed in 1791 are those useful in military emergencies involving threats to the public realm.
The NRA and its allies would like us to forget that our Bill of Rights was framed in the light of English law, custom and historical experience, which the American colonists knew and shared. Few members of the First Congress would have been ignorant of the relevant background. In the English civil war (1641-1649), a crucial fighting issue was the struggle between Parliament and the crown for the control of county militias, which until Parliament challenged the king had been a crown prerogative. No doubt the Second Amendment was therefore intended to reinforce Article I provisions vesting power to raise and maintain armed forces in Congress, not the president.
These are the facts, widely accepted before the NRA, backed by certain practitioners of law-office history, converted the Second Amendment into a form of private license. This perversion was written into law by the Roberts court in a District of Columbia case in 2008. Perhaps the D.C. ordinance at issue overreached. But if incompetent legislation created an occasion for the perversion of basic rights, they soon would become unrecognizable.
The late Chief Justice Warren Burger did not hesitate to call the perversion propagated by the NRA constitutional “fraud.” Justice Lewis Powell, whom I knew well, made a standing offer to debate the point publicly with anyone who contended that the Second Amendment conferred a “private” license to carry deadly weapons – as in N.C. now a supposed right to carry concealed weapons everywhere prevails, in schools and churches as well as barrooms, where alcohol intensifies the danger. Powell, so far as I recall, had no takers of importance. The recent U.S. Supreme Court decision would have been inconceivable on a court once peopled and controlled by Powell, Brennan, White, Stewart and Blackman.
Among the current jurists who voted six years ago to rewrite the Second Amendment (many of them the same as those who have rewritten the First Amendment to make the mere expenditure of campaign money into “free speech”), there are “originalists” who claim to look back to, and honor, historic meaning. They should be sent back to elementary school reading circles to learn, among other things, the logical connection between what rhetoricians call a prolepsis and its analepsis – as embodied in the two linked clauses of the Second Amendment. The liberties they take with the plain meaning of “the right to keep and bear arms” would be less harmful if they were consistent and confined the supposed original right, as their theory would seem to demand, to flintlocks.
There were no Glock pistols or AK-47s – to say nothing of Bushmaster AR-15s – in 1791.
Edwin M. Yoder of Chapel Hill is a former editor and columnist in Washington.