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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.

Keeping and Bearing What (and When and Where)?

In DC v Heller, the Supreme Court has quite forcefully (and rightly, I think) made two arguments concerning the 2nd Amendment to the Constitution, the most fundamental law of the United States.  First,it guarantees a right possessed by individuals, and not by “the people” as a collective entity.  Second, what the Amendment specifically protects is the possession and carrying of firearms.

     Let me repeat that, just so there is no confusion.  SCOTUS says, and I agree, that the 2nd Amendment guarantees to individual citizens the right to possess and carry firearms.

     Any interpretation of the 2nd Amendment must begin with the understanding that the Amendment does not create, nor does it define the right to keep and bear arms.  The Founders viewed this as a natural (or, as some would prefer, God-given) right.  All the 2nd Amendment does is reference this right and provide a reason for giving it Constitutional protection.  But it tells us nothing about the scope of this right, i.e., about just what sorts of keeping and bearing are protected.

     This issue of scope is discussed briefly in DC v Heller, but the Supreme Court has yet to attempt a substantial account of just what this right protects.  The need for such can be seen if we consider the 1st Amendment protection of the right to freedom of speech.  The 1st Amendment uses language that is just as absolutist at the 2nd:  government “shall make no law…abridging the freedom of speech.”  Yet the law prohibits all sorts of speech with little or no controversy:  fraud, perjury, threats, slander, and so forth.  The right to freedom of speech may not be abridged, but it simply does not extend to, and thus does not protect, these sorts of speech.  There is a wealth of Supreme Court jurisprudence on the scope of the right to freedom of speech, and yet there are still questions that arise.

     The Supreme Court’s Heller decision recognizes the need for an account of the scope of the right referenced in the 2nd Amendment.  That they don’t attempt one is largely due to the fact that they find DC’s law so restrictive that it would fail any reasonable interpretation of the 2nd Amendment.  (SCOTUS will usually, though certainly not always, make the narrowest decision possible, so as to minimize political consequences.)

     This account will be largely an exercise in historical and philosophical investigation:  what was the generally accepted understanding of this right at the time the Amendment was adopted (history), and how can we understand and apply that right here and now (philosophy)?  That this right may not be infringed does not mean that it is unlimited in scope; some kinds of keeping and bearing may fall outside the scope of this right, just as some kinds of speech fall outside the scope of the right to freedom of speech.  Likewise, that its inclusion in the Constitution is justified by the need for a militia does not mean that service in a militia is the only kind of keeping and bearing that is protected.

     A final note:  there was considerable regulation of firearms at the time of the founding.  There was no serious effort to do away with most of these regulations for decades, and when there was, it seldom had anything to do with the 2nd Amendment.  (Prior to Heller, the Supreme Court had provided very little interpretation of the 2nd Amendment.)  Concealed carry was outlawed in places, on the theory that you were up to no good if you felt the need to conceal your weapon.  Prohiitions on carrying firearms in public were not uncommon.  Figuring out exactly what the founders were trying to protect with the 2nd Amendment will be no easy task.