“A Well Regulated Militia”
Considering the United States has had two high-profile mass-shootings in one week, one in Georgia and one in Colorado, the idea of gun control has come back into public discourse. Vice-President Kamala Harris has already “demanded action” on the issue of guns, and President Joe Biden has thrown around the idea of using Executive Orders to pass gun control instead if Congress does not act, Press Secretary Jen Psaki has also said such a thing is “under consideration.” Of course, the Second Amendment to the Bill of Rights promises us that the right to bear arms shall not be infringed, but gun control activists have ways around having to worry about that.
Easily the most common argument is that, even taking into account how it was originally written, the Second Amendment does allow some forms of gun control. Here’s The Young Turks host Cenk Uygur making that argument on Twitter on 3/23/2021:
Quick quiz: What is the only thing in US Constitution that mentions regulations? Answer: 2nd Amendment. It clearly states people with weapons must be “well regulated.” In America, that has been interpreted to mean that is the one thing that should have no regulations. Insanity.
Now, Cenk is right when he says the Second Amendment is the only one to use the word “regulate.” However, that does not mean that nine of the ten Amendments do not contain exceptions. The Third Amendment, for example, reads the following:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
So the power of the Third Amendment is reduced in times of war from not allowing soldiers to be quarter in a house without the consent of the owner to only not allowing it if it’s not “in a manner to be prescribed by law.”
The Fifth Amendment is also not absolute, as it reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Basically, you have the right to a trial by jury, unless the case arises “in land or naval forces, or in the Militia, when in actual service in time of war or public danger.” Once again, while exceptions exist, those exceptions are clearly listed in the amendment, and only apply in the case of a very specific crime during a very specific time.
One more, the Seventh Amendment doesn’t apply in all cases, and it reads:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Basically, you have the right to a trial by jury in a lawsuit unless the lawsuit is for something worth very little. Once again, although it doesn’t apply in all cases, the circumstances where it does not apply are clearly stated in the amendment.
Compare that with the language of 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.
In the other amendments, the exceptions are clearly listed out. However, with the Second Amendment, it just says that the Militia must be “well regulated.”
For that matter, let’s talk about grammar for a second. Typically, when a sentence like this has a coma in the middle, the first half is the reason for the second half. Basically, “the right of the people to keep and bear Arms shall not be infringed,” because “a well-regulated Militia” is “necessary for the security of a free State.” As such, only the second part of the sentence has any actual meaning, and the first half has no impact on the rest of the sentence.
However, even then, this is based on a misunderstanding of what the word “regulated” meant at the time. “Regulated” did not mean to regulate, but instead to make regular, because our founders envisioned militias being regular ways for citizens to defend themselves.
Many of our founding fathers, especially the anti-federalists, did not want a standing army. As such, instead of making our nation defenseless, they decided instead to make every citizen a member of a voluntary army, that army being the militia. The founders had seen the power for what a militia could do during the American Revolutionary War (although calling all those militia’s “voluntary” is a little misleading, as Washington did use some underhanded tactics to get people to sign up), and they knew that, if the new government were to ever become tyrannical, they would be the best ones to take it out.
It’s important to remember what the Bill of Rights was in the first place. All ten amendments were introduced to appease anti-federalists, who feared that the Constitution gave the federal government too much power and preferred the state-based Articles of Confederation. As such, the idea that the Second Amendment gives the federal government any sort of power — especially considering all nine other amendments of the Bill of Rights specifically limit the power of the federal government — is historically nonsensical.
