NRO reader, Sharon Bloch of St. Louis, Mo., writes, "My husband
I have been discussing the Second
specifically the meaning of the prefatory language: "A well
regulated Militia, being necessary to the security of a free State."
Does the language mean to imply, as the anti-gun folks claim, that
the right to bear arms is only for the purpose of maintaining
a militia or is the language, as my husband maintains, superfluous?"
clause isn't superfluous, but it doesn't constrict the main clause
of the Second Amendment, which states: "The right of the people
to keep and bear Arms, shall not be infringed."
The best explanation
of the introductory clause can be found in UCLA Law Professor Eugene
Volokh's article "The
Commonplace Second Amendment," which appeared in the New
York University Law Review in 1998.
that the Second Amendment follows a common pattern of constitutional
drafting from the Early Republic: There is a "purpose clause,"
followed by a main clause. For example, Rhode Island's 1842 freedom-of-the-press
provision declared: "The liberty of the press being essential
to the security of freedom in a state, any person may publish sentiments
on any subject, being responsible for the abuse of that liberty."
This provision requires courts to protect every person's right to
"publish sentiments on any subject" — even when the sentiments
are not "essential to the security of freedom in a state,"
or when they are detrimental to freedom or security. (The Rhode
Island Constitution, by the way, echoes William Blackstone's 1769
Commentaries: "The liberty of the press is indeed essential
to the nature of a free state.")
the 1784 New Hampshire Constitution declared: "Economy being
a most essential virtue in all states, especially in a young one;
no pension shall be granted, but in consideration of actual services,
and such pensions ought to be granted with great caution, by the
legislature, and never for more than one year at a time." This
provision makes all pensions of longer than one year at a time void
— even if the state is no longer "a young one" and no
longer in need of economy. Volokh supplies dozens of similar examples
from state constitutions.
As Volokh explains,
the purpose clause can be used to resolve gray areas. For example,
courts treated the Second Amendment as an individual right that
could be exercised by any American. When asked what types of arms
were protected, many courts held that the type of weapon had to
be something that could be suitable for militia-type use. For example,
a rifle would be protected, but not brass knuckles.
Handgun Control, Inc., castigate the National Rifle Association
and other Second Amendment champions for sometimes quoting only
the main clause of the Second Amendment. The anti-gun groups argue
that the main clause can't be properly understood unless the introductory
clause is also quoted.
But the United
States Supreme Court does not seem to agree. Of the 29 U.S. Supreme
Court opinions that have quoted the Second Amendment, 23 contain
only a partial
quote. This quoting pattern suggests that, generally speaking,
Supreme Court justices have not considered the purpose clause at
the beginning of the Second Amendment to be essential to the meaning
of the main clause.
The state constitutions
of Alaska, Hawaii, and North Carolina each contain language identical
to the Second Amendment. In all three states, it is indisputable
that the state constitutional right belongs to individuals without
regard to militia membership. State v. Mendoza, 82
Haw. 143, 149 n. 9, 920 P.2d 357, 363 n. 9 (1996); State
v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921).
at history and at judicial precedent, there are other methods for
analyzing the introductory clause of the Second Amendment, and they
all lead to the same result.
Halbrook (who has a 3-0 record before the Supreme Court) observes
that the Amendment may be stated in the form of a hypothetical syllogism:
since) a well-regulated militia is necessary to the security of
a free State; then the right of the people to keep and bear arms
shall not be infringed."
argument's sake, a civilian 'well-regulated militia' is no longer
'necessary to the preservation of a free State,' it does not logically
follow that 'the right of the people to keep and bear arms' may
be now infringed. To so conclude would be to commit the fallacy
of 'denying the antecedent.' In illustrating the fallacious logic
entailed in denying the antecedent, an analogous but simpler syllogism
may be used: 'If it is raining, there are clouds. It is not raining.
Therefore, there are no clouds.' The conclusion is obviously fallacious,
for there may in fact be clouds even though it is not raining."
editor of Ideas
on Liberty, parses as follows:
the sentence as grammarians, we immediately note two things: The
simple subject is 'right' and the full predicate is 'shall not be
infringed.' This, in other words, is a sentence about a right that
is already assumed to exist. It does not say, 'The people shall
have a right to keep and bear arms
has important implications for the opening militia phrase
Gun opponents often argue that if the opening phrase does not apply
— if, say, the standing army takes the place of the militia — then
the right to keep and bear arms is nullified. That view would require
a willingness by the framers of the Constitution to agree with this
statement: If a well-regulated militia is not necessary to the security
of a free state, the right of the people to keep and bear arms shall
(or may) be infringed. But it would be absurd to think that the
Framers would embrace that statement. Their political philosophy
would not permit them to speak of a permissible infringement of
The term infringement implies a lack of consent
Framers'] concern had been to keep the national government from
limiting the states' power to form militias, they might have written:
'A well-regulated militia being necessary to the security of a free
state, the power of the States to form and control militias shall
not be limited.'"
"What the Second Amendment Means," FREEDOM DAILY,
explains that nullifying the opening clause does not nullify the
a long-lost Constitution that stated: 'The Earth being flat, the
right of the people to abstain from ocean travel shall not be infringed.'
Would anyone seriously argue that discovery of the Earth's spherical
shape would justify compelling people to sail?"
Schulman, an award-winning science-fiction writer from Southern
California, and also a writer on gun-control issues, decided to
ask professional grammarians what the Second Amendment meant. He
called the Los Angeles Unified School District's Office of Instruction,
and was referred to Mr. A.C. Brocki, Editorial Coordinator for the
Office of Instruction. Mr. Brocki was described as the District's
foremost authority on grammar, the person whom the rest of the Office
of Instruction staff relied on for definitive answers.
walked Schulman through the grammatical terms. While over-punctuated,
the Second Amendment could still be broken down grammatically. The
first three words were a "nominative absolute." This nominative
absolute was modified by the participial phrase that begins with
"being." The "compound subject" of the sentence
was "the right of the people." The verb phrase was "shall
not be infringed," and "not" was an adverb modifying
the verb phrase. The five-word phrase "to keep
was an infinitive phrase modifying "right."
put the sentence in modern English: "Because a well-regulated
militia is necessary to the security of a free state, the right
of the people to keep and bear arms shall not be infringed."
Asked if the
sentence could be interpreted to restrict the right to arms only
to the militia, Mr. Brocki said "no." He stated that the
sentence meant that the people are the militia, and that the people
have the right.
"Could another professional in English grammar or linguistics
interpret the sentence to mean otherwise?" Mr. Brocki replied,
"I can't see any grounds for another interpretation."
Asked if he
would stake his professional reputation on the opinion and if he
were willing to be quoted on the subject, Mr. Brocki said, "yes."
asked Mr. Brocki whom Mr. Brocki considered to be the nation's top
expert on English usage. Mr. Brocki referred Schulman to Roy Copperud,
a retired journalism professor at the University of Southern California,
and author of American Usage and Style: The Consensus, which
won the American Publishers' Humanities Award. Before beginning
a seventeen-year teaching career, Prof. Copperud had been a newspaper
writer for major daily newspapers for three decades. He served on
the usage panel of the American Heritage Dictionary, and
was cited as an expert by the Merriam Webster's Usage Dictionary.
telephone calls and an exchange of correspondence, Prof. Copperud
wrote back to Schulman stating his interpretation of the Second
Amendment. Schulman had sent Prof. Copperud a list of questions,
and the questions are interpolated below with Prof. Copperud's written
Can the sentence be interpreted to grant the right to keep and bear
arms solely to "a well-regulated militia"?
The sentence does not restrict the right to keep and bear arms,
nor does it state or imply possession of the right elsewhere or
by others than people; it simply makes a positive statement with
respect to a right of the people.
Is "the right of the people to keep and bear arms" granted
by the words of the Second Amendment?
The right is not granted by the Amendment; its existence is assumed.
The thrust of the sentence is that the right shall be preserved
inviolate for the sake of ensuring a militia.
Is the right of the people to keep and bear arms conditioned upon
whether or not a well-regulated militia is, in fact, necessary to
the security of a free state?
No such condition is expressed or implied. The right to keep and
bear arms is not said by the Amendment to depend on the existence
of a militia. No condition is stated or implied as to the relation
of the right to keep and bear arms and the necessity of a well-regulated
militia as requisite to the security of a free state. The right
to keep and bear arms is deemed unconditional by the entire sentence.
Does the clause "A well-regulated Militia, being necessary
to the security of a free State," grant a right to the government
to place conditions on the "right
The right is assumed to exist and to be unconditional, as previously
stated. It is invoked here specifically for the sake of the militia.
Which of the following does the phrase "well-regulated militia"
The phrase means "subject to the regulations of a superior
authority"; this accords with the desire of the writers for
civilian control over the military.
If at all possible, I would ask you take into account the changed
meanings of words, or usage, since that sentence was written.
To the best of my knowledge, there has been no change in the meaning
of words or in usage that would affect the meaning of the Amendment.
If it were written today, it might be put: "Since a well-regulated
militia is necessary to the security of a free state, the right
of the people to keep and bear arms shall not be abridged."
As a "scientific control" on this analysis, I would also
appreciate if you could compare your analysis of the text of the
Second Amendment to the following sentence, "A well-schooled
electorate, being necessary to the security of a free State, the
right of the people to keep and read Books, shall not be infringed."
Is the grammatical structure and usage of this sentence, and the
way the words modify each other, identical to the Second Amendment?
Could this sentence be interpreted to restrict "the right of
the people to keep and read Books" only to "a well-educated
electorate" — for example, registered voters with a high-school
(1) Your "scientific-control" sentence precisely parallels
the Amendment in grammatical structure. (2) There is nothing in
your sentence that either indicates or implies the possibility of
a restricted interpretation.
the project, Prof. Copperud, who passed away half a year later,
told Schulman that he personally favored gun control. See, J. NEIL
SCHULMAN, STOPPING POWER 151-59 (Santa Monica: Synapse-Centurion,
If the Second
Amendment is confusing to some people these days, the confusion
is not the fault of the Amendment's author James Madison, or of
the rest of the Founders. Rather, the confusion is mainly due to
the success of gun-prohibition organizations in trying to convince
the public that "the right of the people" really means
"the power of the government."