You Being Duly Enrolled....

What if I told you that the 2nd Amendment to the US Constitution requires registration and mandatory training of gun owners?

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 2nd Amendment is unique in the Constitution in having what the Supreme Court (SCOTUS) calls a “prefatory” and an “operative” clause.  The prefatory clause—A well regulated Militia, being necessary to the security of a free state—explains why it is necessary to give Constitutional protection to a specific right.  The operative clause—the right of the people to keep and bear Arms, shall not be infringed—extends Constitutional protection to that right.

     This has caused no end of confusion, as many people conclude that the prefatory clause limits the right protected in the operative clause to a right to serve in a militia.  In DC v. Heller, SCOTUS decisively rejects this interpretation, arguing quite persuasively that it is linguistically, historically, legally, and philosophically defective.  The majority rules unequivocally that the 2nd Amendment grants individuals the right to possess and carry arms, including firearms.

     Those who are interested in SCOTUS’s arguments can read (all 150+ pages of) DC v. Heller for themselves.  I want to reflect a bit on the Court’s account of the relationship between the prefatory clause and the operative clause.  I think we might find that the Court’s argument proves just a bit more than fans of the 2nd Amendment will like.

     The Court is clear that, while the prefatory clause cannot limit the meaning of the operative clause, any viable interpretation of the operative clause must be “consistent with the announced purpose.” [554 U.S. 570, 578 (2008)]  Thus, after advancing an interpretation of the operative clause, the majority opinion takes up the question of whether or not this interpretation is consistent with the purpose announced in the prefatory clause.  Not surprisingly, they conclude (rightly) that it is—an individual right to possess firearms is quite consistent with (perhaps even necessary for) a well regulated militia.

     But let’s push the logic of this requirement that the interpretation of the operative clause be consistent with the purpose announced in the prefatory clause.  In other, less tortured words:  the way that we implement the right to keep and bear arms cannot be incompatible with the maintenance of a well regulated militia.  What more does this tell us about the meaning of the 2nd Amendment?

     It is worth noting in this context that militia musters were common during the founding period.  If you were called, you were expected to show up with your weapon to demonstrate that it was in good working order and that you knew how to use it, and to participate in training.  This is what made a well regulated militia.  It is true that the musters weren’t taken very seriously much of the time, and that militias were mostly ineffective and irrelevant.  But in their failure, they demonstrate precisely what would have to be the case for militias to be effective.  Possession of firearms would inevitably be a matter of public knowledge, and training in their use would be required.

     It is hard to imagine what might compel the proper authorities to call up the citizen militia in this age of a massive military establishment, a National Guard that can be activated without much difficulty, and a highly militarized police force.  But even so, we can ask how we might implement the right to keep and bear arms in a way that facilitates the formation of a citizen militia.  Registration of gun owners?  Mandatory training prior to possession?  Sort of like we handle cars and driving?  

     We’ve all heard the screams of the gun fetishists.  If the government is allowed to know anything about guns, we are on a slippery slope to total confiscation and they’re coming to take our guns and blah blah blah.  I’ve been hearing this for as long as I can remember.  The truth is that every law creates the possibility of corruption or overreach; every law, that is, puts us on a slippery slope to tyranny.  But some slopes are more slippery than others, and the slide towards gun confiscation seems not very slippery at all.

     But as I write this, a new idea occurs to me.  Fascists have traditionally moved to disarm the populations of countries in which they seize power.  Perhaps, now that Trump and the GOP feel themselves safely in charge, they will change their tune on the 2nd Amendment.  Gun grabbers from the GOP?  Oh no.  Surely it’s just a bad dream.