The Right To Keep And Bear Arms Must Never Be Infringed
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.
The Second Amendment To The Constitution Of The United States
The right to keep and bear arms, permanently enshrined in the Second Amendment to The Constitution, is one of the American citizen's most cherished rights, and one of its most controversial. Since the founding of the Republic, this single sentence has generated continual legal debate, with judges and legal scholars haggling over the meanings of every word. On at least seven occasions, the debate has risen all the way to the Supreme Court.
This ongoing controversy says more about the reluctance of government to bow to the Founding Fathers' will and subordinate itself to the true sovereigns of this Republic, the American people, than it does about any complexity or nuance of law. Within this Amendment there is neither controversy nor conundrum, and there is no room for either confusion or doubt. The legal principle is clearly and succinctly stated: Government is to have no authority over private ownership of arms. That is the beginning, middle, and end of any discussion regarding either the meaning or intent of the Second Amendment. A plain reading of the text allows for no other understanding.
Grammar. It Matters
One of the more annoying grammatical idiosyncracies of the Constitution is its curious case of what English teachers for decades have termed "comma-itis"--the excessive use of unnecessary commas. Many of the commas appearing in the text of the Constitution seem to have the function of providing a cue for a dramatic pause when reading the text aloud, but serve no grammatical function.
A well regulated Militia--pause--being necessary to the security of a free State--pause--the right of the people to keep and bear Arms--pause--shall not be infringed.
The temptation is to strip away the "unnecessary" commas to render the text in grammatically correct syntax:
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.
Or perhaps:
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.
However, we should not eliminate any commas if doing so will alter the meaning of the sentence. Correcting grammar must never change the substance of a text. We must therefore consider each portion of the sentence first, before contemplating any removal of commas.
The first two commas set off the phrase "being necessary to the security of a free State." This has the seeming effect of rendering the phrase as a parenthetical phrase. However, a parenthetical phrase or expression is one which does not alter the meaning of the overall sentence, and can be removed entirely without changing that meaning. Yet we cannot remove "being necessary to the security of a free State" without reducing the Second Amendment to pure word salad.
We resolve this point by noting that the phrase "being necessary to the security of a free State" is also an adjectival phrase modifying "A well-regulated militia." Adjectives and adjectival phrases are modifiers which act to "...denote a quality of the thing named...." The phrase "being necessary to the security of a free State" establishes a quality of "a well-regulated militia", namely that it is essential to the political order. This adjectival relationship is not altered by removing the first comma, and so we may plausibly rewrite the text without it:
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.
I will step out of order to note that the third (now second) comma setting off "shall not be infringed" commits the unpardonable sin of separating the subject of the independent clause, "the right of the people to keep and bear Arms" from its verb "shall". This comma is pure grammatical mistake and can also be excised without altering any meaning of the 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.
Can we also remove the sole remaining comma? Perhaps, but before we can do so we must establish the grammatical function of the phrase "A well regulated Militia being necessary to the security of a free State."
We begin by noting that "the right of the people to keep and bear Arms shall not be infringed" is an independent clause. It is itself a complete sentence, capable of expressing a coherent thought without any additional words or phrases. We must therefore establish the relationship between this independent clause and the preceding phrase.
Some language scholars will see the preceding phrase as filling the role in Latin grammar of the "ablative absolute":
a construction in Latin in which a noun or pronoun and its adjunct both in the ablative case form together an adverbial phrase expressing generally the time, cause, or an attendant circumstance of an action
As we can see from the definition of ablative absolute, it is merely a fancy synonym for "adverbial phrase."
a word belonging to one of the major form classes in any of numerous languages, typically serving as a modifier of a verb, an adjective, another adverb, a preposition, a phrase, a clause, or a sentence, expressing some relation of manner or quality, place, time, degree, number, cause, opposition, affirmation, or denial, and in English also serving to connect and to express comment on clause content
Thus the phrase "a well regulated Militia being necessary to the security of a free State" should be viewed as an adverbial phrase modifying the independent clause. We can safely rule out the modifying effect being one of "place, time, degree, number, cause, opposition, affirmation, or denial," and so are left with a relation of "manner or quality." The adverbial phrase is telling us something about the independent clause.
The clue to what that might be is the word "necessary". Preserving the political order requires a "well regulated Militia"--that is the principle articulated in the adverbial phrase. The phrase is therefore expressing a quality of importance. The phrase is telling us why the right to keep and bear arms should never be infringed. If we were to render the full text of the Second Amendment in more modern syntax, we might state it thus:
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.
This is grammatically equivalent to the actual text of the Second Amendment, and preserves all of its meaning and content.
(As an aside, we also see that we can not remove that last comma. Unlike the other two, it is genuinely necessary for the sentence.)
This full appreciation of the grammar of the Second Amendment establishes the proper understanding of the Constitutional principle being elucidated. The reference to "a well regulated Militia" does not circumscribe nor limit the articulated right in any capacity. Rather, it clarifies why the right must be regarded as sacrosanct in all circumstances: we cannot sustain the Republic, we cannot preserve the political order laid out by the Constitution, if we do not abjure any authority of Government to restrict the private ownership of arms.
The Second Amendment is categorical and unconditional. Government may not restrict the right to keep and bear arms, period.
The Supreme Court Fails Basic English
Perhaps the most influential of Supreme Court rulings on the current state of Second Amendment jurisprudence is the 2008 ruling District of Columbia v Heller (554 US 570). While Justice Antonin Scalia's opinion gets the fundamental right of the people to keep and bear arms correct, it makes a subtle error of English grammar which weakens the ruling overall by mischaracterizing the articulated principles of the Second Amendment.
Scalia initially frames the grammar almost correctly, including the modern restatement of the Second Amendment:
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, "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."
However, because he failed to note the adverbial nature of the prefatory phrase (I shall not quibble over his term "prefatory clause", as the adverbial phrase is also referenced by some linguists as a "truncated dependent clause"), he misses the significance that the phrase "announces a purpose", and therefore wanders off into the weeds of jurisprudential speculation disconnected from either the text of the Amendment or the particulars of the case before the Court:
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.
Logic does indeed demand there be a link between the "stated purpose and the command", but that link is already provided by the function of the adverbial phrase. That link is simply the adverbial phrase telling us why the command matters. There is no need for any speculation beyond this, and it is in that speculation that Scalia fatally wounds his Heller reasoning, for he fatuously concludes the right to keep and bear arms is not unlimited (emphasis mine).
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.
Not only is there no Constitutional text which Scalia can cite for this assertion, but a correct grammatical reading of the Second Amendment demands the exact opposite conclusion be reached: The right to keep and bear arms is unlimited. The plain reading of the text doe not permit any other meaning to be attached to the Second Amendment.
The Constitution Presumes No Infringement
If we delve deeper into the Constitution as a whole, we immediately find the presumption of an unlimited right to keep and bear arms implicit in the war-making powers specifically granted Congress. Article 1, Section 8, Clause 11, in assigning to the Congress the power to declare War, also includes a significant other power--the commissioning of private mercenary warships.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
A "Letter of Marque and Reprisal" is a legal instrument by which a private individual is authorized to capture the maritime vessels of an enemy power. The letter of marque protects the holder from charges of piracy when engaged in the raiding of commerce upon the high seas.
Such commerce raiders, also known as "privateers", are not part of a regularly constituted naval force nor even a naval militia. They operate outside the military chain of command. As the term privateer indicates, such ships are private owned, privately outfitted, and privately operated. A letter of marque acts as a license to engage in quasi-military actions.
Letters of marque and reprisal are commissions or warrants issued to someone to commit what would otherwise be acts of piracy. They will normally contain the following first three elements, unless they imply or refer to a declaration of war to define the enemies, and may optionally contain the remainder:
Names person, authorizes him to pass beyond borders with forces under his command.
Specifies nationality of targets for action.
Authorizes seizure or destruction of assets or personnel of target nationality.
Describes offense for which commission is issued as reprisal.
Restriction on time, manner, place, or amount of reprisal.
Any ship outfitted to engage in commerce raiding will necessarily be an armed vessel. The privateers of the 18th and 19th century were fully armed warships in most regards identical to the naval warships of the era, complete with cannon and various small arms.
In other words, the Constitutional authority to grant a letter of marque necessarily presumes the private citizen receiving such letter has the capacity to acquire not merely small arms but various modes of artillery. Whatever weapons of war are state of the art for the sea, these are the weapons presumed to be available to the would-be privateer.
The letter of marque is thus incompatible with any notion of a limitation of the right to keep and bear arms. The letter of marque is a current power of Congress, and no Amendment has ever rescinded or moderated that power. As a bit of historical trivia, in 1941 Congress granted a letter of marque to the private airship Resolute, which for a time engaged in anti-submarine patrols off the coast of California.
It is not inconceivable in this age of private military contractors that Congress might find a use for such letters again in the future. Should Congress wish to issue such letters, it necessarily must allow for private persons to acquire the armaments necessary to outfit a commerce raider, whatever those arms might be--it is highly unlikely a commerce raider could be restricted to any specified class of small arms carried by an individual.
Even before the Second Amendment was ratified, the Constitution inferred that, a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms should never be infringed.
What About "A Well Regulated Militia"?
Despite the foregoing analyses, many opponents of the right to keep and bear arms focus on the term "well regulated Militia" to manufacture limitations upon the right to keep and bear arms. The common argument is that the "militia" has been supplanted by the National Guard and reserve components of the regular military forces, as they are the elements that are "well regulated".
Since San Bernardino, Sandy Hook, Columbine et al., the "progressives," the media and their acolytes have beaten their chests calling for even stricter gun restrictions, although the most restrictive states and cities that have the highest crime. They insist that the Second Amendment does not apply to individuals, but only to the National Guard, even though the modern Guard did not come into existence until the Dick Act of 1903. To them, the Supreme Court decisions in Heller v. District of Columbia and McDonald v. Chicago affirming an individual right are mistaken, a conclusion reachable only by abjuring grammar and history.
This argument is false. The National Guard is not the militia, let alone the "well regulated militia".
The distinction is statutory. 10 USC §246 makes clear distinction between "the militia" and the "National Guard".
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b)The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
On just this statutory basis, it is impossible to conceptualize a meaning of "militia" as pertaining solely to the National Guard, or any reserve component of the regular military. Federal statute itself precludes any such understanding of the term.
This was clearly stated in United States v Miller (307 US 174) and reaffirmed in the Heller ruling:
...the Militia comprised all males physically capable of acting in concert for the common defense.
In similar fashion to the initial grammatical analysis of the Second Amendment as a whole, we also see that any intimation that "well regulated" implies close government regulation and control is unsupported by proper understanding of the term. A simple review of examples of ordinary usage of the term before and after the drafting of the Constitution rejects this formulation:
The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:
1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."
1714: "The practice of all well-regulated courts of justice in the world."
1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."
1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."
1862: "It appeared to her well-regulated mind, like a clandestine proceeding."
1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."
The term "well regulated" today should be apprehended simply as an anachronistic term indicating normal function.
The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.
In plain modern English, the prefatory adverbial phrase of the Second Amendment merely states that the capacity of ordinary citizens to act in and for the common defense is an essential element of preserving the political order of this country. The Second Amendment as a whole states that because this capacity is so vital to preserving the Republic, the right of ordinary citizens to arm themselves however they will is explicitly placed beyond the purview of any and all government authority.
The Common Defense Is Our Right And Our Responsibility
We require no legal text, nor philosophical treatise, to understand the imperative of common defense. Neighbor helping neighbor, neighbors coming together in time of crisis, is among the oldest customs of any civilized society. Whether the threat before us is natural cataclysm or some malignant bad actor intruding upon our communities, the reflex of all communities is the same--to unite against the foe and reject him entirely.
The common defense is both our right and our responsibility. Without this, our communities and ultimately the whole of the Republic would eventually cease to be. An helpless people can never hope to remain a free people.
For this reason, the right to keep and bear arms must never be infringed. It must always remain absolutely inviolate, and beyond the purview of any government.