Sam Zwick

I originally wrote this piece in July of 2022 following one of the 695 mass shootings that took place in the United States last year. Unfortunately, it’s just as relevant now as it was then.

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Twenty-seven words. Written today, it may even be shorter; sentences from 130-years ago tend to have a bit more flourish after all. So why is it that a string of just 27-words is so controversial in the United States?

The Second Amendment is, from a linguistic standpoint, not terribly complicated: 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.

Simple as it may sound, there are few things in law that are cut and dry. As gun violence and mass shootings dominate the national landscape, the debate about what the “right to bear arms” truly means is constant. 

Following the Supreme Court’s 2022 landmark decision in New York State Rifle and Pistol Association v. Bruen, many of the roadblocks to obtaining and carrying a firearm in the US have begun to fall. People who occupy the political right tend to see that as a good thing. The right to own guns is there in the Amendment, clear as day, they argue. Those on the left disagree. The right to carry a gun is not mentioned anywhere and ignoring the “well regulated Militia” clause is a pretty clear case of willful ignorance.

For a moment, let’s imagine a world where we can bridge the political divide with the written word. Rather than amend the Amendment in the here and now, let’s fire up the Delorean, travel back to 1791 and start from scratch. Is there a way that the Second Amendment could have been written to eliminate the debates that rage today?

Professor Brad Jacob of Regent University in Virginia took a stab at the question and started with the Militia clause. 

“One fairly easy fix,” he wrote in an email response, “with the benefit of hindsight would be to eliminate the ‘prefatory clause’ (“A well regulated Militia, being necessary to the security of a free State”), which caused uncertainty up until DC v. Heller about whether there is a personal right to keep and bear arms, or just a power of the states to maintain militias.” 

The case Professor Jacob cites, DC v Heller, is a 2008 Supreme Court case which stated that the Second Amendment guarantees an individual the right to possess firearms independent of service in a state militia and to use those firearms for traditionally lawful purposes, including self-defense within the home. 

Prefatory clause out the window, we’re left with: The right of the people to keep and bear Arms, shall not be infringed.

That seems like the kind of change the right wingers could get behind, but it’s hard to say that a shorter, more concise writing is necessarily more clear.

“Of course, that doesn’t really help with any of the questions that remain unanswered today,” Professor Jacob continues. “What ‘arms’ are protected? Are there particular places in which the government may prohibit firearms? What kinds of processes and procedures (background checks, red flag laws, etc.) can the government put in place that may make gun ownership slower and more difficult, but not necessarily impossible?”

All fair questions. 

Perhaps a more robust amendment is the better course.

Given the chance to start from scratch, the vast majority today’s of gun control advocates would ensure that automatic weapons were banned from the beginning. Unfortunately, that does little to help our current exercise, as the first automatic weapons weren’t invented until about 100 years after the Second Amendment was codified into law. It also opens up a major can of worms with regards to anticipating future problems with current laws.

Would it have been great to set a legal limit on the output of greenhouse gasses at the outset of the Industrial Revolution? Absolutely. Is it reasonable to ask a government to anticipate problems that humanity is ill equipped to contemplate, let alone foresee? Absolutely not. 

With no way to ban something before it exists, we are left with a law that is still open to a wide range of interpretations. And perhaps interpretation is actually the issue here. Professor Edward Fallon of Marquette University in Wisconsin seems to think so.

“There is no need to rewrite the Second Amendment,” Professor Fallon wrote in an email. “One only needs to give it the meaning that the original words were intended to have.”

Here, we fall into the rabbit hole that is Originalism. To keep it brief, Originalism is a legal theory employed largely by conservatives which aims to enforce how a law is enforced based on how it would have been understood, or was intended to be understood, at the time it was written. The concept is interesting in theory, but how does it work in practice?

Former Justice Antony Scalia wrote the majority opinion in the aforementioned DC v Heller case and, in Professor Fallon’s opinion, took some extreme liberties in interpreting the Second Amendment. 

“In the Heller decision, Justice Scalia interpreted the word ‘arms’ to include handguns (the original meaning was limited to the weapons used in warfare), interpreted the word ‘Militia’ to include all able bodied citizens of the State (the original meaning was limited to an organized and trained military unit), and interpreted the word ‘State’ to include all members of society in general (the original meaning was a reference to State governments and the power of State governments),” Fallon writes. “All three of Justice Scalia’s interpretations are inconsistent with the use of these same three words in the Articles of Confederation (adopted about seven years earlier than the Constitution), a near contemporaneous document which uses these three words consistently with their originally understood meanings and not in the way Justice Scalia does in the Heller decision.”

So if a single justice is able to take those sorts of liberties in interpreting the “original” meaning of a law, does the actual language of the law matter at all?

“The framers knew what the words they used meant. It never occurred to them that it would be necessary to protect against future generations giving new meaning to words,” Professor Fallon concluded. 

Using Fallon’s reasoning, let’s try to pull the “original” meaning out of the amendment: A well trained military unit, being necessary to maintain the security of the State governments, the right of the organized and trained military unit to keep and bear the weapons of warfare, shall not be infringed. If we strip out the old-timiness of the sentence, it reads: To ensure the security of the State governments, a well trained military unit shall maintain the right to keep and bear the necessary weapons of warfare.

Progress?

In a vacuum, yes. We’ve limited the people allowed to own a gun to members of the military. No more 18-year olds with no prior firearm training walking into a sporting goods store and leaving with a gun and box of bullets. We’ve also established that the reason the military can bear arms is exclusively to maintain the security of the state governments. Keeping a gun on you in public, or even at home, is not permitted as the only reason a military member should bear their arms is in defense of the state. 

But let’s put on our Scalia-hat for a second and see where some Originilaist thinking might turn back that progress. What are the weapons of warfare? Surely automatic weapons fall in that category today. What constitutes defending the state? Ask anyone who took part in the January 6th insurrection and most would tell you that they did so in defense of a government they felt was under attack. 

Another conservative, Justice Clarence Thomas, penned the majority decision of Bruen this past June. In it, Thomas pushed heavily to use historical analogs as the benchmark by which to decide whether any existing or yet-to-be-written gun regulation is constitutional. Basically, is there a historical precedent for this type of regulation? If there is not, then the regulation is unconstitutional. If there is, well quite frankly, the court will decide if they like it or not. Multiple state-level gun regulations dating back centuries were dismissed by the majority in the decision for various reasons, most of which do not stand up to scrutiny. In short, the court appears to have jumped the shark on Originalism and has begun pulling together decisions a la carte. 

So where does that leave us? As we sit before a no-doubt confused James Madison, our time machine cooling in the barn, we have ripped apart, attempted to clarify, and reassembled the Second Amendment. Yet no matter the changes we make, it is still possible, if not shockingly easy, for a determined conservative judge to contort it into a right to bear any and all arms.

If the goal here is to fix what’s broken, it’s not a string of 27-words from 1791, but the fact that the justices of the Supreme Court can bend those words, and by extension, any words, to their will. 

Fire up the Delorian, Marty, we need to try this again. This time, we’re off to 1789 and the formation of the Supreme Court because that’s where the real issues lie.