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Constitutional Interpretation – Errors with the Second Amendment

The uproar over the second amendment after the recent court decision brought a new spotlight to an issue which died down in recent years. What exactly does the second amendment mean? Does it apply to individuals? Or only the military? Errors are common in this discussion, as Matthew Dennis illustrates in his opinion piece.

Gun advocates will need to make their case on its contemporary merits, because in fact the Constitution, specifically the Second Amendment, gives them no ammunition. An individual “right” to own firearms simply does not exist.

More to the point, “the people” refers to a collective body, and a collective right, not to individuals. In the First Amendment, for example, “the right of the people peaceably to assemble” is guaranteed. A “person” cannot assemble – only collectively, among people, does the right of assembly have meaning. But as we know from the prefatory first clause of the Second Amendment, the point here is to protect “the people” who collectively constitute the state.

Mr. Dennis makes several errors, mistakes, and misunderstandings common to this discussion (and The Constitution in general).

  • Grammar and English
  • Historic understanding
  • Constitutional Interpretation

First, Mr. Dennis makes errors in English language and its usage by stating “the people” in the second amendment only means a collective right, not individual. To understand his error doesn’t require vast English language analysis (which could be done, but frankly is boring), but simply comparing the second amendment with the fourth.

Second Amendment: 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.

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If “the people” only refers to a collective, the fourth amendment also only applies to a collective as it uses the same language. This leads to the bizarre conclusion searches are only illegal if applied to a group; you as an individual have no guarantee against unreasonable or warrantless searches and seizures. This is obviously ridiculous, and against all historical meaning and understanding of the amendment, as well as common sense.

The only way to avoid the absurdity his faulty logic presents argues “the people” means one thing in the second amendment, and something completely different in the fourth (and the other amendments), which is logically inconsistent. While context can illuminate meaning, no reason exists to believe the phrase means one thing in the second amendment, and something entirely different in the fourth (except it favors your position).

‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.

Some use a different tactic to avoid the previous logical absurdity, arguing the second amendment only applies to “The Militia” (meaning the military), and thus denies an individual right. Unfortunately that argument also arises from ignorance of historical and legal facts, and also leads to absurd results. Historically, the militia has been men not in the military, and current US Code is specific (US Code TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311).

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Stating the second amendment applies only to the military is laughable. Of course the military can have arms — that’s their purpose. If the restriction is true, the second amendment is redundant and unnecessary; the amendment only makes sense if the right is individual, just as the rest of the Bill of Rights.

Arguing “the people” isn’t individual is absurd, and the militia (both historically and current law) specifies application to individuals not in the military; neither attempt to deny individual rights of the amendment stands scrutiny of language, history or law. No doubt can remain the framers intended the Bill of Rights to be individual rights. And for almost 200 years, no one questioned that logical conclusion.

Until the last few decades, it’s been understood what the bill of rights means — history is clear. Only recently have groups popped up claiming hidden meanings and exclusions to promote their own agenda, and in the attempt creating logical errors and denying historical and legal facts.

Finally, all his errors stem from his fundamental fatal flaw tainting all his logic:

The Constitution is a remarkable, living document that continues to guide and protect us.

It’s become popular to allow The Constitution to be a living, malleable document. It’s especially beloved by groups knowing their extreme ideas have no chance of passing a popular vote — it’s much easier to get a single judge to agree to an extreme position than the whole country to amend The Constitution.

The problem becomes when meaning can be “found”, it can be “unfound” just as easily. That’s one reason why abortion is so divisive. When the right to abortion was “found” in The Constitution (since it’s not really there), abortion proponents know it can just as easily be “unfound” — thus the war over abortion continues with no settlement in sight (or possible), because according to the “living document” view rights are not absolute but subject to varying meaning.

It’s interesting people desire The Constitution to be “living” when it favors them, and not living when it’s against them. To illustrate, consider abortion verses the patriot act. The far left embraces the living Constitution when it “finds” abortion rights, but not when it “lives” in terms of changes made by the patriot act or other areas favoring the current administration. But you can’t have it both ways — The Constitution is either malleable and pliable to anyone who wants to change its meaning, or it isn’t. If you enjoin the “living document” philosophy when it suits you, be prepared for situations when the outcome is not in your favor.

However, all these problems can be avoided (by all groups who wish to subvert The Constitution) by proper Constitutional interpretation. Not by original intent, nor by finding new meaning as a living document, but by the textualist method, meaning the text is clear and says what it means. In ambiguous situations (as, for example, new technologies like radio and the Internet), textualists seek to determine original meaning, which differs considerably from original intent. Original meaning seeks how the document has been understood and applied over the last 200 years, allowing The Constitution to be applied to new situations (the Internet), while maintaining consistent meaning and guaranteeing the rights contained therein are unchangeable and permanent.

In such a light, the second amendment is crystal clear — it’s an individual right, and always (until very recently) understood in such a way.

The Constitution codifies absolute, permanent and unchangeable rights guaranteed to all citizens. As such, it’s a “dead” document. If you don’t like parts of it (like the second amendment), the document allows for changes to be made. But it’s dishonest to argue something having well-understood meaning and application for over 150 years suddenly means something different in the last few decades.

Allowing The Constitution to be a “living document” means rights can be “found” (or lost) at any time. When that occurs, citizens have no guaranteed rights and whatever rights they posses can be changed by judges or popular opinion, creating the exact situation The Constitution is designed to avoid.

Further Reading: Constitutional Interpretation

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