The Second Amendment to the Constitution of the United States of America clearly states:
“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.”
If you take out both modifying clauses and reduce the Second Amendment to its essence, It reads: “A well regulated Militia, …, shall not be infringed.”
Both phrases: “being necessary to the security of a free State” and “the right of the people to keep and bear Arms”, are modifiers of the term Militia and are not the primary intent of the Second Amendment. Any grammarian can see that, you don’t have to be a Constitutional Scholar.
If one reads the legislative history of the Second Amendment (to non lawyers, legislative history is the collection of all drafts, written statements, debates, etc.,, taken as a whole) it becomes abundantly clear that the intent of the framers of our Constitution was that the Second Amendment was meant to facilitate the maintenance of “a well regulated Militia.”
If I may paraphrase the Second Amendment, it says that your right to bear arms is sacrosanct as long as you are part of a “well regulated Militia.” So if you want to bear arms freely, I believe (with some knowledge of Constitutional law) that you should join a well “regulated” Militia or the National Guard.
I fail to understand why noted legal scholars of Originalism, such as Antonin Scalia, cannot see this.
Welcome to my blog. I welcome your comment, because the post (as are all of my posts) is an invitation for a discussion and not just a rant.
However, I disagree with your position that my interpretation of the Second Amendment is wrong. I am not the only one to believe that the right of an individual to bear arms is based on the need to maintain stated regulated militia. In the SCOTUS decision on the District of Columbia’s gun control law, four justices dissented (District of Columbia v. Heller, 554 U.S. 570 (2008)) and agreed with Justice John Paul Breyer’s dissent which reiterated what had been the law of the land for years relating to the fact that the right to bear arms was pursuant to the maintaining of a well-regulated militia. A good article on the history of this topic can be found in http://www.loc.gov/law/help/second-amendment.php
With all due respect to Justice Antonin Scalia, I find that the majority of his positions are based primarily on conservative politics, rather than originalism.
In fact, my belief is that originalism itself is specious in that only the framers of the Constitution can speak to what they meant by any given arrangement of words. To suggest that a person living in the 21st century can correctly state the framers’ thoughts in constructing language goes beyond belief. The framers are, of course, not here to tell you what they were thinking and unless you claim an ability to go back in time …
If one states that they can divine the thought processes of the framers through their contemporaneous writings, then I would submit that such actions are in fact interpretations of Constitutional text and not originalism.
Sorry, Phil, but I think you’re wrong. The main clause in this sentence is “The right of the people to keep and bear arms shall not be infringed.” Your version, “A well-regulated militia . . . shall not be infringed,” does not even make sense. The Merriam-Webster dictionary defines “infringe” as “to encroach upon in a way that violates law or the rights of another.” Since the word “right” actually appears as the subject of the sentence, “infringed” refers to “right,” not militia. Neither grammarian nor legal scholar could make sense of your interpretation. Do you actually believe you know more about textualism than Justice Scalia?