The Self-Contradictory Second Amendment
The Second Amendment contradicts itself. On the one hand, well-regulated militia; on the other hand, uninfringed bearing of arms. But to regulate is by definition to infringe. One can make a lawyerly distinction between infringement and regulation; but the difference is relative to the observer.
Shall guns be controlled? For instance shall they be kept out of the hands of children, criminals, traitors and the insane? If not then the militia is not well-regulated; if yes then arms-bearing may be infringed.
Suppose that Mr. Discord, who constantly earns his name, wants a large stockpile of powerful weapons; may he buy it or not? If yes, then the militia is self-evidently ill-regulated; if no, then bearing arms is a privilege not a right; and if it’s a judgement call, then the Second Amendment has no legal force and in effect does not exist.
Perhaps, as a face-saving compromise, Mr. Discord has to fill out and notarize some paperwork before legally purchasing his arsenal. This paperwork, called the “Well-Regulated Militia Form, Schedule 23”, asks about name, address, e-mail, phone numbers, social security number, age, citizenship, restraining orders, psychiatric record, criminal record, safety and skill certification, types and numbers of weapons purchased and payment type. But you know how well Mr. Discord copes with paperwork. He’d call it bureaucratic interference with the free market.
Some say that the “well-regulated militia” clause is there just to justify the “bearing arms” clause. But if so then arms-bearing is the means, and well-regulation the end; so any arms-bearing that undermines well-regulation is against the stated intent of the Second Amendment. Any policies that aid one half of the Second Amendment and hinder the other half are in violation of it. Therefore the Second Amendment can exist only as a compromise.
No other amendment has a qualifying phrase. There is no First Amendment call for “well-regulated” speech or religion.
So the Second Amendment takes both sides of the gun control debate; therefore it can be quoted by both sides. How convenient! From this I predict that the big federal gun-control law, when it comes, will be titled, “The Well-Regulated Militia Enforcement Act”.
Appendix: The Second Amendment Repair Act
I propose the following as legislation before Congress.
The Second Amendment Repair Act
1. The right of the people to keep and bear arms in a well-regulated militia shall not be infringed.
2. Well-regulated militias shall not arm those under adult age, nor arm those found guilty of treason as defined by the Constitution.
3. States have the right to enforce additional regulation of their militias.
Commentary by the author:
Compare clause 1 of SARA to the original 2nd 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.”
Alas, poor Amendment! The sentence lies there, broken into four fragments, as if someone had dropped it on the floor. My critique of the 2nd Amendment is both literary and political; for its shattered incoherence is due to an unresolved political dispute. Washington insisted on good regulation of Jefferson’s popular militias; his objection was jammed on as a subordinate clause given top billing.
Clause 1 of SARA fixes the grammar of the 2nd Amendment. It’s a single coherent clause; that prevents partisans from exaggerating one clause and ignoring another. The original had well-regulation as an explanation for the need for the right to bear arms; here well-regulation is part of the right itself. This makes explicit the necessary link between rights (arms) and responsibilities (well-regulated). Clause 1 is as much about gun control as about gun rights.
This re-emphasis on regulation empowers clause 2. No children in arms, nor traitors; that’s necessary. If the militia is well-regulated, then it may not arm children or adolescents, who are not well-regulated people; and if the militia is of the state, then it may not arm those levying war upon the states. I choose these two regulations for the sake of clarity. Age is on public record; and treason is defined in the Constitution. (Article 3, section 3.)
Clause 3 establishes that militias belong to the states, which they may regulate as they see fit, as a matter of state’s rights.
This proposal is very conservative, in the non-Orwellian sense of the word ‘conservative’. It makes few changes in the original text, beyond rewriting it for clarity. This rewriting explicitly mandates both gun rights and gun control. Such rewriting is necessary because of the 2nd Amendment’s fragmented condition.
Since DC vs Heller in 2008, we have been living with a partial reading of the shattered 2nd Amendment, one that ignores the first two fragments and fetishizes the next two. So due to Scalia’s judicial activism, for over a decade the 2nd Amendment has been half-repealed, to malign effect now self-evident.
I propose that we repair it, and reinstate it, whole.
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