Why the Second Amendment Requires the Regulation of Automatic Weapons
The
Second Amendment was ratified in 1791 as one of the Bill of Rights, the ten
amendments necessary to persuade the states to ratify the Federal Constitution. States insisted on the Second Amendment as a
condition for ratifying the Constitution to
protect their autonomy from the power of the national government. Until
the Civil War, all the effects of the Constitution were limited to the federal
government alone, except where states are explicitly mentioned. States were
allowed to regulate guns.
The Second Amendment says, "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
Militia
A
militia is a military organization drawn from the civilian population, as
opposed to a professional army. All able-bodied males between the ages of 17
and 45 were required to be Militia members when the Second Amendment was
ratified. Militia members owned their own guns but were required to keep them
in working order and to report for duty when called. As there was no standing
army or police force when the Second Amendment was written, the Militia was the
law enforcement and national defense forces of the day.
Militias were state forces, not federal. Fear of standing
armies was the major motivation for siting lethal force in the population under
the control of the states, but the slave states also were concerned about the
national government interfering with their peculiar institution and insisted on
controlling the whip hand.
The War for Independence proved the deficiencies of the
Militia system, which is why Congress created a Continental Army to fight the
British. General Washington could request troops and supplies from the states,
but they didn't always deliver. Even after the Constitution was ratified,
during the Whiskey Rebellion in 1794, the local Militia had proved unequal to
the task of restoring order and collecting taxes. President Washington then
assembled a federal militia of more than 12,000 men from the surrounding states
and eastern Pennsylvania. The weakness of the militia system was that local
militias could turn into mobs, scofflaws, or even side with the lawbreakers.
The Second
Amendment guarantees that the federal government won't abolish the state
militias or prohibit the people from keeping and bearing arms. I won't argue
against the Supreme Court's determination that weapons like shotguns and
hunting rifles are allowed to law-abiding citizens or that handguns are allowed
for people to keep in their homes for protection. Some people live in rural
areas where they may be endangered by wild animals, and law enforcement may be
far away. In colonial times, people needed guns to fight Indians, wild animals,
and criminals.
A False Analogy
What I will say is that the Supreme Court's statement
that "Just as the First Amendment protects modern forms of communications,
and the Fourth Amendment applies to modern forms of search, the Second
Amendment extends, prima facie, to
all instruments that constitute bearable arms, even those that were not in
existence at the time of the founding" (Heller p.8) is a false analogy. Prima
facie, in legal terms, means it's a fact on its face unless proven
otherwise.
The equivalency of all bearable arms is a preposterous
concept. It is a false analogy to equate whether what someone says, writes, or
hears is "indecent" or whether using thermal imaging and someone's
utility bills to surmise they are growing marijuana in their house constitutes
a search is analogous to giving a gun that can fire only three or four bullets
per minute the same legal status as one that can fire 800 to 1,500, merely
because a person can carry them. This syllogism is a perfect example of pure
logic yielding an absurd result. No one ever died from reading or seeing
something obscene. No one ever died from an unreasonable home search, well,
almost no one. According to the Centers for Disease Control, 49,000 people were
killed by guns in 2021.
Also,
bearable arms is not mentioned in the Constitution. The right to bear arms is a
right. Arms are arms. Bearable arms as a legal construct is a creation of the
Supreme Court.
In 1791, guns were
handmade, weighed ten pounds, and an expert marksman could shoot only three or
four rounds per minute. The guns were inaccurate, useless beyond 100 yards, and
dangerous to the shooter. Today, automatic weapons shoot between 800 and 1,500
rounds per minute. Sniper rifles may be accurate to a range of two miles. While
the Brown Bess musket of the Revolutionary War period weighed ten pounds,
modern pistols can be carried in a woman's purse where her two-year-old toddler
can reach it and shoot her mother dead in the supermarket. The Supreme Court is
saying that these two guns are equivalent under the law. And this is the reason
so many people claim a blanket "right to bear arms."
How did the Court come to such an obviously irrational
result? Simple. They rewrote the Second Amendment. The Heller decision says, "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 re-phrased, '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 abridged.'" The only problem with this argument is
that even though the Amendment could be re-phrased, it wasn't. The Supreme
Court then proceeded to decide the case as if it had been, claiming that the
first two phrases, the subject of the Amendment: "A well-regulated
Militia, being necessary to the security of a free State..." are a preface,
an introduction having no operational meaning.
This
is also absurd. The Preamble to the Constitution: "We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the common
defense, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the
United States of America." This is the preface to the whole document and
its purpose. What follows is essentially nothing but instructions.
Starting with:
"All legislative Powers herein granted shall be vested in a Congress of
the United States, which shall consist of a Senate and House of
Representatives."
Then: "The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States..."
Followed by: "No Person shall be a Representative who..." Get the picture?
No prefaces. It's nothing but one instruction after another.
In contrast to the Supreme Court's interpretation of the
Second Amendment as having a preface, the First Amendment begins,
"Congress shall make no law..." The Third, "No Soldier
shall..." The Fourth is "The right of the people to be
secure..." The Fifth "No Person shall..." In the Sixth,
"All criminal prosecutions..." The Seventh, "In suits at common
law,..." The Eighth, "Excessive bail shall not be required..."
The Ninth, "The enumeration in the Constitution, of certain
rights,..." and the Tenth "The Powers not delegated to the
Constitution..."
The Court's majority admits that the Second Amendment is
the only part of the Constitution with a supposed preface. Its argument is that
the prefatory clauses do not grammatically limit the latter "right to bear
arms" clause. It uses a linguistic analysis, not a legal argument, to
claim the right to bear arms is not limited in any way by "a
well-regulated militia being necessary to the security of a free state."
The Court asserts that "logic
demands that there be a link between the stated purpose and the command,"
and absent such a logical connection, the first two phrases of the Second
Amendment can be ignored in deciding the meaning of the third. It sets up a
straw man. It asserts that the supposed preface can not alter the powers of the
operative clause, the right to keep and bear arms, which is true, but beside
the point. The three text citations that the Court uses to support its claim
tell a different story. "But though the preamble cannot control the
enacting part of a statute, which is expressed in clear and unambiguous terms,
yet, if any doubt arise on the words of
the enacting part, the preamble may be resorted to, to explain it." A general treatise on statutes: their rules of
construction, and the proper boundaries of legislation and of judicial interpretation
by Dwarris, Fortunatus,
Sir, 1786-1860; Potter, Platt,
1800-1891 p. 269 cited but not quoted by
Supreme Court in Heller.
"The influence of the
Preamble,' says Mr. Justice Story in his
Commentaries on the Constitution of the United
States, ' has a foundation in the exposition of every code of
written law, upon the universal principle of interpretation, that the will and intention of the Legislature is to be regarded and followed. The preamble is properly referred to when
doubts or ambiguities arise upon the words of the enacting part. The preamble
can never enlarge; it cannot confer any
powers per se. Its true office is to expound
powers conferred, not
substantially to create them.' 'The
preamble to a
statute,' say the
Supreme Court in Illinois,
' is no part
of the act, still it may
assist in ascertaining the
true intent and
meaning of the
Legislature.'" A treatise
on the rules which govern the interpretation and construction of statutory and
constitutional law by Sedgwick, Theodore, [Speaker of the House of
Representatives and a US Senator] 1811-1859; Pomeroy, John Norton, 1828-1885 p. 43 cited but not
quoted by the Supreme Court in Heller.
But the true political intent of the Court's decision in Heller is revealed in the third citation, the
strongest one in support of its position that the preface of the Amendment is
unrelated to its enacting clause: "'It is nothing unusual in acts...for
the enacting part to go beyond the preamble; the remedy often extends beyond
the particular act or mischief which first suggested the necessity of the law.'
J. Bishop Commentaries on Written Laws
and Their Interpretation §51, p.49 (1882)." What was left out of the
quotation by the ellipses? ‒ "of Parliament." The Court is
passing off a nineteenth-century English legal analysis on the role of prefaces
as American. Whereas the American commentators on the role of the preface say
it can be used to illuminate the enacting part, the English citation says the
contrary. That the Court is hiding its' source is proof of its dishonesty.
The Framers of the Constitution had the delicate task of
talking about militias without taking credit for their creation, making it
clear that the Militias were pre-existing state bodies before the United States
federal government was even conceived. Hence, "A well-regulated
Militia..." clearly says the Militia must be regulated, and "being
necessary to the security of a free State" defines it clearly as a state
institution. It's not a preface. The Amendment couldn't say, "There shall
be militias of the several states," because that would make them creatures
of the federal government. "A well-regulated Militia" is a statement
acknowledging the existence of independent state power within the federal
system. The "well-regulated" puts a federal foot in the door
acknowleging the right of states to have militias, but warning that they must
behave. That's why the states insisted that before ratifying the Constitution,
their power be acknowledged in a Bill of Rights.
Far from being a preface, well-regulated Militia refers
specifically to the practical need to have interoperability of arms in a
fighting force where every soldier supplied his own weapon. Every weapon was
handmade; no two were identical. Practical military doctrine desired that
soldiers could share ammunition and be able to pick up and fire each other's
guns in the chaos of combat. Even today, standardizing guns and bullets is a
major issue in multi-national forces like NATO. The Supreme Court's ignorance
of the actual combat conditions and obstacles of colonial combat and its desire
to reach a pre-conceived conclusion led it to edit the Second Amendment to the
detriment of public safety. There is no constitutional right to bear arms for
illegal purposes, and people who don't own guns have as much of a right to
self-defense as those who do. The regulation of firearms consistent with the
clear public safety intent of the Second Amendment is how the unarmed protect
themselves.
The Supreme Court in Heller,
on the other hand, decided that the beginning of the Second Amendment has no
operational meaning, it's an introduction to the purpose of the last phrase,
"the right of the people to keep and bear arms shall not be
abridged." The Court removed the right to bear arms from its militia and
security context and gave it to the individual. That's why so many gun
aficionados are working overtime to expand gun rights, opposing background
checks, calling for concealed carrying privileges and opposing any limits on
the kinds and amounts of weapons a person may possess.
Although
the majority of the Supreme Court fashion themselves as strict
constructionists, textualists faithful to the meaning of the founding document,
when it comes to the Second Amendment, they should be called
re-constructionists. In other contexts, they find meaning by going back to
English common law and even further. But in the case of the Second Amendment,
when encountering a textual difficulty, they just re-wrote it.
In my opinion, the church and school shootings
and mass killings stem directly from the Supreme Court's decision to ignore the
militia and security phrases, the first two of the Second Amendment. In
examining the Constitution and legal documents in general, the most important
points come first. Hence, the First Article of the Constitution is about the
powers and composition of the legislature, not the executive or the courts.
I am an English major, not a lawyer, but the Supreme
Court's expansion of the Second Amendment individual right to bear arms is
based on linguistic, not legal analysis. It's clear from a grammatical
standpoint that the subject of the text of the Second Amendment is "A
well-regulated Militia..." The term well-regulated alone is an operative
term, otherwise, the supposed preface would say, "A militia being
necessary..." Of course, the relationship between the Militia, a secure
State, and the right to keep and bear arms is ambiguous. One must assume that
those who wrote, "Congress shall make no law" and "No soldier
shall" were perfectly capable of using extreme precision in wording when
desired and that any vagueness was intentional, not irrelevant.
So, let's return to the Court's argument that all bearable
arms are equally protected, "even those that were not in existence at the
time of the founding." According to the Court, if I could invent an atomic
bomb that was small enough to be shot from a gun that I could carry, it would
be protected right along with a 1791 rifle that could only shoot three or four
bullets per minute to a distance of 100 yards or less and had to be reloaded
after each shot.
I submit that the framers of the Constitution were not
morons who did not anticipate technological progress in armament technology.
Many of them were the same soldiers who fought in the War for Independence and
would have been more than well aware of the constant search for better and more
lethal guns. Perhaps that's the reason they left the relationship between
Militias, security, and the right to keep arms deliberately vague. While guns
in 1791 could fire only three or four bullets per minute, and guns today can
fire 800 to 1,500 bullets per minute, I do not think that the men who wrote the
Constitution would consider them legally equivalent, as Justices Scalia,
Roberts, Kennedy, Thomas, and Alito do.
While
certainly, the people who wrote the Constitution could never have imagined the
internet and the 1996 Communications Indecency Act, and they would have
difficulty imagining thermal imaging but not going through another person's
garbage or effects, they were intimately familiar with instruments that could
fire 800 to 1,500 bullets per minute. They were called well-regulated militias
of 200 to 400 men. Today, the Second Amendment would seem to require that a
single eighteen-year-old with the firepower equivalent to a militia in 1791
would have to be well-regulated.
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Joshua Leinsdorf
Atlantic Highlands,
New Jersey
September 11, 2025