So often we hear people, particularly politicians, declare they are supporters of the Second Amendment. A more proper characterization of what most of them support is a bastardized interpretation of the Second Amendment that completely ignores the history and language of a relatively simple sentence: “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.” That language was not intended to prevent the government from making reasonable regulations that restricted (or even forbid, in some cases) private ownership of firearms.
To read the Second Amendment as a guarantee of the unrestricted personal right to own firearms, wholly untethered to security of the state or membership in a state militia is to ignore the provision’s self-contained explanation for the right created. It is important to remember that militias were creatures of state government, and the Founding Fathers feared the accumulation of power in a central government. So, through the Second Amendment, they ensured the central government could not disarm the militias and that state militias would operate as a bulwark against a tyrannical central government. (How’s that working out?)
The unseverable connection between military service and the right created by the Second Amendment is made clear by examining the history of the amendment. James Madison, the author of the amendment, originally included a religious scruples clause in the first draft of the text, using the term “bearing arms” as follows: “The right of the people to keep and bear arms shall not be infringed; a well armed and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” 1 Annals of Cong. at 451.
In this original text, “bearing arms” plainly means serving in the military. While that meaning may not be clear where the term is first used, when the same words are used in the third clause—”no person religiously scrupulous of bearing arms, shall be compelled to render military service in person”—it is unquestionable that bear arms is meant to serve in the militia. Madison, one of the greatest minds of his time, undoubtedly knew that a phrase using the same words would be read to mean the same thing each time used.
As one of the briefs in the District of Columbia v. Heller case points out, “The term ‘bear arms’ or ‘bearing arms’ appears 30 times in the Library of Congress database containing all of the official records of debates in the Continental Congress and U.S. Congress between 1774 and 1821. In each instance the usage was unquestionably the military usage.”
While the “religious scruples” clause ultimately was deleted from the final text of the Amendment, the remaining text still contains the term “bear arms,” and there is nothing to even mildly hint that the term in the phrase “keep and bear arms” was intended to have a different meaning after the deletion. As the above-quoted brief concluded, “The only reasonable conclusion, therefore, is that ‘bear arms’ in the Second Amendment mean[t] ‘to serve as a soldier, do military service, fight.’”
Of course, all of these arguments were rejected by the Supreme Court in the Heller case. The decision, written by Justice Antonin Scalia was roundly and justifiably criticized by legal scholars—liberals and many conservatives alike. That criticism led Scalia to expend considerable effort defending Heller in a book he authored in 2012 with Bryan Garner, “Reading Law: The Interpretation of Legal Texts.”
Interestingly, in the book, Scalia approvingly quotes Justice Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute.” Unfortunately, however, Scalia ignored that logic in Heller, because the result in Heller could only be achieved by ignoring the Second Amendment’s preamble: “A well regulated Militia being necessary to the security of a free State.” That preamble explains the rationale for the Second Amendment—a rationale unrelated to personal self-defense and intended specifically to forbid any effort by the federal government to disarm state militias. Contrary to the wise counsel of Story, Scalia treated the preamble dismissively in his opinion in Heller.
So, I too support the Second Amendment, just as I support all other amendments to the Constitution—even the ones I am none too fond of. I just support the Second Amendment as it is written and for what it means. I am a small-government conservative who opposes concentration of power in the central government. I also support the 10th Amendment, which reserves to the states powers not vested in the federal government. And one of those powers, I believe, is to regulate firearms.
Cary Ichter is managing partner of Ichter Davis, a boutique litigation firm formed to handle commercial litigation, trust and estate disputes, and family law litigation for high net worth individuals.