This dissertation was not intended to address the ethical or moral implications of interpretations of the 2nd Amendment. Ethics is the moral principles that govern a person's behavior. Morals are concerned with the principles of right and wrong and the human character. Law is the system of rules that a particular political jurisdiction recognizes . It is my intent only to explore the legal aspects of this issue, and nothing more. I am not advocating for, or against any particular opinion or side.

THE SECOND AMENDMENT TO THE U.S. CONSTITUTION

“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.”

There are very few passages in American history more hotly contested, or which evoke more emotion, than the 2nd Amendment. Confusing punctuation and sentence structure has left legal scholars scratching their heads for decades. The meaning of this sentence is at best, confusing, and has provoked much commentary, but few Supreme Court decisions.

The problem with the 2nd Amendment is that most people start with their preferred conclusion, then work backwards to interpret the Amendment in support of that conclusion.

**********

When I set out to do this, I decided to approach the problem in a different way. Not by trying to support a pre-determined conclusion, but rather by trying to find the truth, no matter the outcome.

The ongoing debate is whether the amendment protects the right of private individuals to keep and bear arms, or whether it instead protects a right only through regulated militias. The preparatory clause “A well regulated Militia, being necessary to the security of a free State”, and the operative clause, “the right of the people to keep and bear Arms, shall not be infringed” and their relationship to each other have been analyzed ad nauseum by much more learned men than I.

Here is the 2nd Amendment, grammatically changed to reflect each of the two viewpoints:

 1.    A well regulated Militia is necessary to the security of a free State and the right of the people to keep and bear Arms shall not be infringed.

2.    People have the right to keep and bear arms in service of a well-regulated militia, which is necessary to the security of a free state.

I can see that either interpretation could be considered correct, depending on grammar and punctuation, so I researched other Amendments for clues to try to determine a constructive pattern which might yield an answer. (Legal Construction is the process by which the meaning of an ambiguous provision of a statute, written document, or oral agreement is determined). I can find neither the kind of ambiguities contained in the 2nd Amendment, nor any constructive clues which might clarify the issue.   It is truly Frustrating.   

It seems to me that since we can’t ask the author(s) what they meant, we are at an impasse, and the only thing to do is to ignore these conflicting interpretations and try to determine the intent and spirit utilized in the Amendment’s creation.    Years ago, when I was learning the practice of law, I was taught that when the interpretation of a law is difficult or impossible, one should try to ascertain the intent of the lawmakers.  

James Madison proposed the 2nd Amendment in 1791, and any research as to his intent has yielded no definitive answers, so now what one might do?

I decided to try to determine intent contextually, based on history, the state of the nation and the political climate as they existed at that time.

Back then, America was a frontier nation and an agrarian society, and it's people had a passion for independence. Your average white male owned firearm(s) for a number of reasons.  Perhaps hunting, to be of service in defense of one’s family or community against marauders or criminals, and just maybe, to join others in defense of his new country. Firearms were quite simply a necessary part of life in frontier America.

In 1791, weapons were not considered anything but tools to be used for good and honorable purposes.    There was no such thing as school or workplace shootings, or the kind of senseless mass murders that are all too common today.   The Texas Clock Tower shooting at the University of Texas in 1966 is recognized as the first mass shooting in history. This occurred some 170 years after the 2nd Amendment, and even in 1966, nobody foresaw the violent world in which we now live, or the types of weapons now available. As such, we cannot assume that the authors of the 2nd Amendment intended to limit that which was inconceivable hundreds of years after their death.

An interesting fact is that in Early America, some private citizens actually owned cannons: they were called privateers. Privateers were private citizens who operated ships that preyed upon ships of foreign countries, primarily the British, and the U.S. government legally allowed these privateers to operate without being prosecuted for piracy. These vessels were not a part of the U.S. Navy, but like all ships of war, they were armed with cannons. The cannons were not government owned, they were private property. At the time of the 2nd Amendment, anyone who could afford a cannon could own one, without any kind of restriction.

On May 8, 1792, a year AFTER the 2nd Amendment, Congress passed the Militia Act, requiring that every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age eighteen years, and under the age of forty-five years, be enrolled in the militia. Other acts would soon follow.

The Efficiency in Militia Act of 1903 is still in effect today, and it repealed and superseded all earlier Militia Acts. It described the Militia as every able man in the United States between the age of 17 and 44 and would be divided into two classes:

1. Organized militia – The National Guard of the State, Territory or District of Colombia, and

2. Reserve militia – Everyone not in the National Guard.

So, even if you argue that the Amendment only applies to well regulated militias, the Militia Act of 1903 decreed that everyone in the military and every able-bodied man in America between the ages of 17 and 44 is, by definition, a member of a regulated militia, and is therefore entitled to the protections afforded by the 2nd Amendment.

All that being said, it appears my argument as it relates to militia is moot. In a 2010 decision, the Supreme Court considered the Second Amendment’s prefatory clause, "[a] well regulated Militia, being necessary to the security of a free State," and determined that while this clause announces a purpose for recognizing an individual right to keep and bear arms, it does not limit the operative clause.

It seems that at least for now, the law of the land is “The right of the people to keep and bear Arms shall not be infringed.”

**********

As such, I have no choice but to come to the conclusion that the intent of the 2nd Amendment was that there be NO INFRINGEMENT upon people’s rights to keep and bear arms. To that end, and carrying it to its logical conclusion, it would seem that any law, rule, code or regulation that limits the ownership or carrying of weapons is unconstitutional.   Yes, I understand that this may mean that knives, spears, automatic weapons, sawed-off shotguns, silencers, large-capacity magazines or anything and everything that a person might carry for his defense, or take in his hands for a weapon, is explicitly allowed by law, and I well know exactly how dangerous this might be.

Some people argue that the Constitution should not be subject to interpretation; that it should be read literally. Others argue that it should be viewed as a living document that evolves and changes with the needs of our society. I would argue that the framers already took this argument into account.  They determined the Constitution could be changed at any time, and they set forth the specific manner in which that can be lawfully accomplished.

In summation, it appears that the ONLY way to Constitutionally enact and pass ANY gun law in the United States is by Amending the U.S. Constitution and the 2nd Amendment.  Until that is done, it may be that any law that restricts Americans from owning or bearing weapons is unconstitutional.

**********

Having said all of this, there just might be two lawful ways for our government to disarm Americans. To reiterate what I stated at the beginning, it is my intent only to explore the legal aspects of this issue, and nothing more. I am not advocating for, or against any particular opinion or side.

1. I am no Constitutional scholar, but it seems that a new, liberal Supreme court could re-interpret the 2nd Amendment to mean that only militia members are covered, which would mean that only people in the Military and able-bodied men between 17 and 44 are so protected. Congress could then amend the Militia Act of 1903 declaring that there is no longer a Reserve Militia, which would effectively allow only the U.S. military to have weapons.   This possibility alone might be enough to keep the Supreme Court from buying into the whole militia argument. After all, isn’t this ultimately EXACTLY what the 2nd Amendment was designed to protect against . . .  an armed government and an unarmed citizenry?

2. There is a much easier way for the government to stop all new sales of guns and ammo and not run afoul of the 2nd Amendment. Congress could revoke the Protection of Lawful Commerce in Arms Act (PLCAA), which would then allow victims of gun violence to sue the manufacturers, distributors and sellers of guns and/or ammunition to be sued for that violence. Plaintiff’s attorneys would then do all the heavy lifting. The first billion dollar verdict, and the manufacturers, distributors and retailers would stop selling guns and ammunition. They simply could not afford to stay in business. Congress could then specifically allow lawsuits against private party sellers of firearms and ammunition if the buyer later committed a violent act with that firearm or ammo. That would stop most, if not all, private party transactions.