Grammar and Context of the Second Amendment to the United States Constitution
There has been significant commentary in recent years regarding the grammatical structure of the Second Amendment. Generally, those commentaries have been based in attempts to substantiate a political position against the Second Amendment rather than trying to determine the intent of the Second Amendment.
More important than the grammatical structure of the Second Amendment is the time and context in which it was written. While some suggest that the Constitution is a "living document," the meaning of which changes with time, James Madison, leading advocate for the Constitution and author of the Bill of Rights thought otherwise. In an 1824 letter to fellow Virginian and founding father, Richard Henry Lee, Madison wrote:
With a view to this last object, I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders will, I believe, appear to all unbiased inquirers into the history of its origin and adoption. Not to look farther for an example, take the word "consolidate" in the address of the convention prefixed to the Constitution. It there and then meant to give strength and solidity to the union of the states. In its current and controversial application it means a destruction of the states by transfusing their powers into the government of the union.
It has been said that, "A text without a context is only a pretext," meaning that words, particularly short statements, can be twisted to have meanings other than intended if they are evaluated without consideration of the authorship, surrounding text, and circumstances of their writing.
For context, the Second Amendment is a protection for the people from the federal government. It is in no way a restriction on the people by the federal government. That would be exactly counter to the expressed intent in the preamble of the Bill of Rights:
"...in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
To assume a restriction on people would also be counter to historical context. The Second Amendment was written following the War of the Revolution by which the states comprising the United States achieved freedom from Great Britain and after the federal Constitution of the United States was adopted by those states to replace the earlier Articles of Confederation. This was a time when State sovereignty remained prominent above that of a federal government, with general concern for the continuing freedom of the people and of the states from tyrannical government. It was also a time when, because of decades of tyrannical British rule, there was a broad disdain for standing armies with preference for requiring able-bodied men to be a part of each state's citizen militia.
The text of the Second Amendment declares:
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.
As the preamble to the Bill of Rights suggests, there is a (1) declaratory statement and a (2) restrictive statement in the Second Amendment:
- 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
These statements stand alone with very little confusion. And taking them as stand-alone declaratory and restrictive (on the government) statements is the correct way to understand their meanings. However, some people become confused about how they relate (and others purposefully pervert the relationship for political reasons). To explain the relationship, not much logic is required, but, again, the foundational meaning of rights in the Bill of Rights is required.
In short, the right of the people to keep and bear arms is not to be infringed and the implicit personal right to arms for self-protection and self-provision is strengthened and reinforced by the need for a well-regulated militia to ensure the security of the state from threats within and without.
The “confusing” statement about the Militia is not a limitation on Second Amendment rights; it is an expression of the extreme importance of Second Amendment rights for the protection of the states. Even without an understanding of the militia, this should once again be clear from the preamble of the Bill of Rights which states the goal of limiting government, not peoples’ rights. And with an understanding of the militia in 18th century colonial America this fact is unimpeachable.
What about the “implicit” rationale of self-protection and self-provision? Why are they not spelled out along with the militia? The answer is based in the context of history. In colonial America many people carried firearms in every-day life for hunting and protection from animals and hostile people, alike. An armed individual in society was not only accepted, but more likely expected.
But that said, Founder, Robert Whitehill, from Pennsylvania, who was against acceptance of the Constitution because it did not affirm rights (as the Bill of Rights later did), proposed the following amendment which explicitly addresses self-protection and self-provision:
That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.
Finally, the context for the Second Amendment of the United States Constitition, and perhaps the key to its grammatical structure, is demonstrated in the constitutions of the states which ratified the Bill of Rights. State consitutions written prior to the Constitution, under the Articles of Confederation and under the new Constitution, provide the basis for the language used in the federal Bill of Rights- especially the constitutions of Pennsylvania and Virginia. The Second Amendment is a strong blend of the right to bear arms and militia goals from these two states:
The 1776 Pennsylvania Constitution, Chapter I, right XIII, states:
That the people have a right to bear arms for the defence of themselves and the state;
and the Virginia Constitution of 1776, Section 13, states:
That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State;
Clearly, the federal Second Amendment is a compromise expressing that the values of both state constitutions should be protected. This is further evidenced by the 1790 Pennsylvania Constitution, Article IX, Section XXI, created about the same time as the federal Bill of Rights, which uses the language "shall not be questioned" which is very similar to "shall not be infringed:"
That the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned.