​Parsing the Second Amendment

Any discussion of the right to bear arms has to take note of the Second Amendment. Here's Anthony Mason:

At the heart of the debate over guns in America is a single, inscrutable sentence: The Second Amendment of the Bill of Rights, whose wording is unusual.

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"It's unusual. It's short. It's clogged with commas," said Michael Waldman, who heads the Brennan Center for Justice at New York University Law School, and is the author of a biography of "The Second Amendment."

"The Second Amendment says, '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.' What does that mean?"

The most-disputed clause in the Constitution is the phrase about militias, which were a great concern when the Bill of Rights was written in 1792.

"At the Constitutional Convention in Philadelphia, there was a very big controversy about how to allocate military power," said Nelson Lund, professor of constitutional law at George Mason University. He says the states feared the new government would try to disarm the 13 state militias, which required every white male over 16 to own a musket.

"The anti-Federalists were very worried that the states would be deprived of their power to resist federal tyranny," Lund said.

"The militia, sir, is our ultimate safety," Patrick Henry argued. "We can have no security without it."

While guns were commonplace then, so were gun regulations. New York and Boston prohibited the firing of guns within city limits.

And in the notes for the Constitutional Convention, Waldman says, "There's literally not a word about it protecting an individual right for gun ownership for self-protection, hunting, or any of the other things we think about now."

"There's one side that believes that this amendment refers specifically and only to militias," said Mason.

"Well, I know people say that, but it just can't be true," replied Lund. "If you look at what the words say, it says 'The right of the people to keep and bear arms.' It does not say, 'The right of the states' or 'The right of the militias.' It says 'the right of the people.'"

The debate over the Second Amendment came to a head at the Supreme Court in 2008, in a case filed over the Capital's gun laws, called District of Columbia v. Heller. In a 5-4 vote, the court affirmed an individual's right to keep and bear arms, striking down D.C.'s ban on handguns in the home.

'The inherent right of self-defense," Justice Antonin Scalia wrote in the majority opinion, "has been central to the Second Amendment right."

But, Scalia added, "The right ... is not unlimited," also leaving room for gun regulation.

Lund said, "It is absolutely a continuing grey area."

Another grey area is how the court might rule on future Second Amendment issues after the sudden death of Justice Scalia in February.

"So, you know, a lot depends on who replaces Justice Scalia," said Lund.


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