-4

There are a couple other questions on this site about this sentence, most notably this one but none of them really focus on whether the second part of the amendment is conditional on the first part.

The Second Amendment

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.

It is common for people to say that the "A well regulated Militia" part of this sentence implies that the right to bear arms might be able to be infringed in the absence of a well regulated militia.

By the standards of the time, was this a grammatically sound assumption to make? Can the right to bear arms be conditional on the well-regulated militia?

  • But a well-regulated militia is necessary, so there can't be an absence of one. – Jim Aug 13 at 5:46
  • 4
    There is no way that this question can be answered at this site. The legal (and syntactical and semantic) interpretation of this question has been debated for over a century, and it is still being debated today. At best, an answer would be "yes, it's possible." But challenges to this passage are based on ascribing to it ambiguity—and then arguing for an interpretation that is not currently in law. (Opponents of the current law argue that it's not talking about the rights of individuals to bear arms, but the rights of the Militia to bear arms and of the people to have such a Militia.) – Jason Bassford Aug 13 at 6:37
  • 1
    @jasonbassford I am not asking what the legal answer is. I am asking a question about English syntax. Although I ultimately am interested in a legal discussion about it, all I’m looking for with this particular question is the language aspect of the matter. – Sam I am Aug 13 at 13:56
  • It's all wrapped up together. After over a hundred years, nobody has been able to sufficiently agree on or interpret the wording. – Jason Bassford Aug 13 at 13:57
  • 1
    @JohnHennig That's just to give people background for why I'm asking. You don't need to believe that claim in order to provide an answer. – Sam I am Aug 14 at 16:50
2

The decision in District of Columbia v. Heller, 554 U.S. 570 (2008), was written by Justice Antonin Scalia. Scalia later co-authored (with Bryan A. Garner) a book entitled Reading Law: The Interpretation of Legal Texts. The text of the decision is of course a basic source on the Second Amendment. Scalia also writes about the case in his book, where he is describing how an originalist (which is what he called his legal philosophy) approaches law, which goes, he says, beyond the historical usage of words:

For example, in the Heller case, which upheld the individual right to possess firearms, one of the significant aspects of the Second Amendment was that it did not purport to confer a right to keep and bear arms. It did not say that "the people shall have the right to keep and bear arms," or even that "the government shall not prevent the people from keeping and bearing arms," but rather that "the right of the people to keep and bear arms" (implying a preexisting right) shall not be infringed." This triggered historical inquiry showing that the right to have arms for personal use (including self-defense) was regarded at the time of framing as one of the fundamental rights of Englishmen. Once the history was understood, it was difficult to regard the guarantee of the Second Amendment as no more than a guarantee to of the right to join a militia. Moreover, the prefatory clause of the Second Amendment ("A well regulated militia being necessary for the defense of a free state") could not be logically reconciled with a personal right to keep and bear arms without the historical knowledge (possessed by the framing generation) that the Stuart kings had destroyed the people's militia by disarming those whom they disfavored. Here the opinion was dealing with history in a broad sense.

Because questions about the Second Amendment appear on EL&U from time to time, I thought it would be worthwhile to provide this background, which is essentially the late Justice Scalia's answer to the question.

  • 2
    This completely ignores the question for the alleged syntax' eventual currency in history. Granted though, it's nigh impossible to prove a negative, as well as it hard to decide what constitutes currency (as "this" and "sound" brings in all of the contextual baggage the question wanted to avoid. Nevertheless, I'd expect examples of a similar syntax or at least an honest attempt. Flagged. Soryy if bear arms trigger you. – vectory Aug 13 at 17:30

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.