Over the past couple of months, I’ve been in some discussions on posts by other Viners about the “meaning” of the Second Amendment. In this article, I lay out a linguistic analysis of the amendment to support my understanding of what it means.
So, let’s start with the amendment itself, which I produce in full:
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.
You’ll note that (as could be expected) the amendment adheres to late eighteenth century practices in punctuation and capitalization rather than to our modern ways of doing things. You’ll also note that the amendment is a single sentence, starting with a dependent clause whose subject is “Militia,” followed by an independent clause whose subject is “right.”
Word by word, then, here are the parts of speech and function served by each of the twenty-seven words in the amendment.
“A” (indefinite article attached to “Militia”)
“well” (adverb modifying regulated)
“regulated” (adjectival verb form modifying “Militia”)
“Militia” (noun, subject of the initial, dependent clause)
“being” (gerundive adjective verb introducing an explanatory phrase)
“necessary” (adjective joined with “being” modifying “Militia”)
“to” (preposition introducing a prepositional phrase within the explanatory phrase)
“the” (definite article attached to “security”)
“security” (noun, object of the preposition “to”)
“of” (preposition introducing a prepositional phrase within the explanatory phrase)
“a” (indefinite article attached to “State”)
“free” (adjective modifying “State”)
“State” (noun, object of the preposition “of”)
[At this point, the introductory, dependent clause concludes]
“the” (definite article attached to “right”)
“right” (noun, subject of the independent clause)
“of” (preposition introducing a prepositional phrase identifying to whom the right belongs)
“the” (definite article attached to “people”)
“people” (noun, object of the preposition “of”)
“to” (first word in an infinitive, a non-finite verb form which generally requires two words—“to” plus the verb—in English)
“keep” (verb, second word in an infinitive)
“bear” (verb, second word in an infinitive—note that the “to” is not repeated and is attached to “bear” by the conjunction “and”)
“Arms” (noun, object of the infinitives “keep” and “bear”)
“shall” (supplementary verb form attached to “infringed”)
“not” (negative, denoting that the verbal construction is not positive)
“be” (supplementary verb form attached to “infringed”)
“infringed” (verb, with the subject “right”).
Whew! Now let’s look at the syntax of all these words. The first, dependent clause is a “nominative absolute”: a kind of adjectival clause in which the entire clause serves as an adjective describing or modifying the subject of the independent clause (which is usually—as is the case in the Second Amendment—the first noun in the independent clause). Thus, everything beginning with “A” and ending with “State” functions as an adjective modifying “right” in the independent clause; the “right” is not given without condition and that condition is spelled out in the nominative absolute. The second, independent clause specifies that this modified right shall not be infringed.
So, the syntax shows us the amendment recognizes that the people have a right to keep and bear arms because such is necessary for the security of a free state and this security is delivered by means of a militia.
I noted above that as we might expect the Second Amendment adheres to eighteenth century conventions on punctuation and capitalization; here I’d like to note that the same principle applies to vocabulary. Words change meaning over time and we must look at the words as the people who wrote and adopted the Second Amendment would have understood them. The best source for such information is The Oxford English Dictionary (hereafter OED), a “historical dictionary” whose purpose is to record the first known printed usage of every word in the English language and then to record the first known printed usage each time that word changes meaning, spelling, or orthography.
At the time of the Second Amendment, a militia (first known appearance in print in English 1590) was an irregular army composed of private citizens providing military service in times of emergency.
Because there is today much discussion of restrictions on gun ownership, there has been a great deal of debate over the words “well regulated” in the Second Amendment. In particular, many on the Right state that it merely meant “in proper working order” at the time of the Second Amendment (and I’ve repeatedly seen a link provided that shows the OED examples of “well regulated” but which presents a definition in the words of the author of the link and not in the words of the OED). I’ve also seen on the Vine an argument made that “well regulated” meant “trained” to the authors of the Second Amendment.
So, let’s see what the OED says about “regulate” and specifically about “well regulated.”
The first printed usage of “regulate” in English is from 1630 and the OED defines that usage as meaning “to control, govern, or direct by rule or regulation; to subject to guidance or restriction; to adapt to circumstances or surroundings.” In 1646, the OED defines a new usage of “regulate” as meaning “to bring or reduce to order.” In 1649, a new usage is defined as “to make regular or even.” In 1662, a new usage is defined as “to adjust in respect of time, quantity, force, etc. with reference to some standard purpose.” In 1680, a new usage is defined as “to correct by control.” There are no other “new” definitions for “regulate” between 1680 and the writing of the Second Amendment.
The OED defines “regulated” by reference to these meanings of “regulate,” but it does record one 1690 use of “well regulated” which might be of use to us here and it defines that use as “[of troops] properly disciplined.”
None of these definitions fit the meanings I’ve seen posited on the Vine; none of them say “in proper working order” or “trained” or any synonyms for such wording. The OED’s lone example of “well regulated” in reference to troops before the writing of the Second Amendment says that “well regulated” troops are “properly disciplined.”
So, what does all this tell us about the Second Amendment which might be useful for our contemporary debate about gun rights?
First, I’d note that the right is expressly given to “the people,” and not to “all persons” (another phrasing found in constitutional amendments granting rights) or to individuals and that it is only given to the people in the context of belonging to a militia. Even if we accept the argument made by the Right that all citizens are in essence part of a militia, it would not be possible to argue that contemporary Americans outside the Armed Forces are part of a “well regulated militia” by the definition of the words in use at the time the of the amendment, as contemporary citizens are not under the command of a state governor and are not properly disciplined by anyone. The reason that this right to keep and bear arms was so important in the context of a militia was that, at the time, a militiaman was expected to bring and provide his own weapon. These days when one joins any military force, one is issued a weapon as part of the process of training. This understanding of the Second Amendment—that it did not grant arms rights to individual persons—was the law of the land in the USA for more than two centuries after the passage of the amendment, until the Supreme Court case District of Columbia v. Heller (2008) which reversed these centuries of precedent by a 5-4 ruling that has since been widely critiqued by legal scholars.
Second, I’d note that the right is expressly given to the people because this right is necessary to the security of a free state. Thus, I think it possible to argue that any keeping and bearing of arms which threatens the security of a free state can be prohibited under the language of the amendment.
Third, I’d note our Founders repeatedly expressed distrust of standing peacetime armies (they thought such armies dangerous to democracy), thus requiring a reliance on a militia for national security. As we have long since abandoned the Founders’ ideas about a standing peacetime army, the need for a reliance on militias is too a thing of the past.
Fourth, I’d note that the Constitution itself (in Article One) very specifically grants to Congress the power “to make rules for the government and regulation of the land and naval force” and “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” Our friends on the Right who argue that the purpose of the Second Amendment right to keep and bear arms is to be able to protect ourselves from a tyrannous federal government seem to miss that the Constitution explicitly states that one of the purposes of a militia is to suppress such activity. [Our friends on the Right who make this argument often quote Thomas Jefferson in support of their argument; I’d merely note that Jefferson had nothing to do with the writing of the Constitution, as he was serving as the Ambassador to France for the US government under the Articles of Confederation the whole time the Constitutional Convention was being held.]
Can gun ownership be banned outright under the terms of the Constitution? I think an argument can indeed be made that the answer to this question is Yes, but I myself would not accept that argument. I would accept the argument that limitations on gun ownership can be enacted when that ownership threatens our security (as per the Second Amendment) and can be enacted by Congress rather than on a state by state basis (as per Article One granting Congress the power to regulate the land forces). Though again I personally would not accept such an argument, I believe an argument can be made that gun ownership under the terms of the Constitution can be limited to those participating in our modern equivalent of the militia (i.e., the National Guard).