Tuesday, March 27, 2018

Why Does the Second Amendment's Ambiguous Wording Cause So Much Confusion?

Bill of Rights, National Archives
We're hearing lots of speeches this month about the Second Amendment, which many quite responsible people believe underlies America freedom. Although the problems with gun rights in the 18th Century differed from those of today, there was still a big gap between the absolutists and the conservatives. (Although, as we'll see in a moment, many 18th Century conservatives took a position that would be considered liberal today, and vice versa.) 

The problem is that the Second Amendment is a prime example of what we could call creative ambiguity. When a statement is ambiguous, this means that it carries two different meanings. LiteraryDevices.com gives an example: "He gave her cat food." Does this mean that he fed his cat, or that he fed a woman some cat food? The sentence is ambiguous because it might carry either meaning. So, let's look at the Second Amendment to the United States Constitution:

"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."

This is a classic political statement, written by politicians (for the Founding Fathers were, most certainly, politicians) who needed to get something passed, had trouble agreeing, and wrote up a compromise that made little sense. Does the Second Amendment call for regulation, or not? Frankly, I don't think they intended it to be clear. Let's look at what they could have said if they wanted to be clear:

1. The Founders could have chosen to be thoroughgoing libertarians along the NRA's lines. 

If the Founders anticipated and shared the views of the National Rifle Association, they could have written this. (For consistency, I'll imitate 18th Century style):

"The right of the people to keep and bear Arms in defense of the state or themselves, and for sporting purposes, in their Homes, places of Commerce, and about their persons, shall not be infringed."

That would be simple and clear, would it not? But they did not write that, did they? Actually, however, some of them thought about writing about something very similar! For example, during the debate about ratifying the Constitution, before the Bill of Rights was written, the proto-libertarian delegates known as the Pennsylvania Anti-Federalists proposed this amendment:

"The people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game, and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and governed by the civil powers."

The NRA would be reasonably happy with that, I would think. And we would hear much less debate as to whether the Second Amendment authorized individuals to own firearms. Nevertheless, even this very libertarian statement proposed disarming citizens who were dangerous.

2. The Founders could have chosen to side with traditionalists like George Washington.

If the Founders wanted to establish a strictly controlled armed citizenry, they could have written a Second Amendment like this:

"The several States shall be empowered to maintain, and discipline a citizen Militia, and this right shall not be infringed."

That would also make sense, but it would say something different. Again, surprisingly enough, some of the Founders thought about writing something quite similar. When they ratified the U.S. Constitution, the Virginia legislature proposed this amendment:

"Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power."

That is very clear. Virginia's proposal placed the bearing of arms under "strict subordination" to the state governments as an alternative to a federal army. Note that their phrase, "well regulated Militia," made it into the amendment's final version, but their comments about "body of people trained to arms," "strict subordination" or "governed by the Civil power" did not.

By the way, here is what President George Washington said in his First Annual Address to Congress, which was the predecessor of today's State of the Union Speech:

"A free people ought not only to be armed, but disciplined; to which and a uniform and well digested plan is requisite; and their safety and interest required that they should promote such manufacturies as tended to render them independent of others for essential, particularly military, supplies.

"The proper establishment of the troops which may be deemed indispensable will be entitled to mature consideration. In the arrangements which may be made respecting it [,] it will be of importance to conciliate the comfortable support of the officers and soldiers with the due regard to economy."

As you can see, Washington sided with the Federalists, placing the armed citizenry under government control and training. He gave this speech in January 1790, almost two years before the Bill of Rights were adopted in December 1791.

Now, as fate has it, ratification of the Bill of Rights and support for the Constitution required at least some support from both the Federalists (who wanted strict government) and Anti-Federalists (who were more libertarian.) No version of the bearing arms amendment that made sense was likely to satisfy both groups. So, we ended up with a creative answer, a Second Amendment that prohibits infringement on gun rights, with a preamble that, due to being grammatically incorrect, either by our standards or the standards of the 18th Century, satisfied the Federalists without offending the Anti-Federalists. 

3. So, here we are today, faced with an ambiguous amendment. 

Modern handgun, from ATF webpage
Both sides could read their own opinions into our Second Amendment in its final form. Both sides still do. Anyone who follows Twitter or blog comments repeatedly sees this libertarian catch phrase:  "What part of shall not be infringed do you not understand?" Liberals invariably respond, "What part of well regulated militia do you not understand?" I have used that latter phrase myself, but who knows which interpretation is right?

Placing emphasis on personal gun rights, a recent conservative newsletter gives a libertarian interpretation:

"The Second Amendment also states that our right to bear arms shall not be infringed. The word 'infringed' is perhaps the most powerful word in the Amendment, as well as the word we discuss the least – an unfortunate combination."

In contrast, Mark Moe writes this: "However, unless you believe that the Founders’ knowledge of grammar and sentence structure was suspect (and what right-thinking person would think that?), the Second amendment, though it does employ a peculiar and sometimes awkward construction called an 'absolute,' is actually a very straightforward call for the establishment of an armed militia when necessary. It has nothing to do with individual gun 'rights' except in that context." So, he sides with the Federalists. 

Sorry, Mr. Moe, although I think that the Founders understood grammar perfectly well, it is obvious that they chose to ignore grammar for political reasons. As a result, we find ourselves today struggling between two different, and equally plausible, interpretations of the Second Amendment.

The Second Amendment was created as a political expediency, and we today are left with its political echoes. Under the Constitution, does the government have a right to regulate or discipline firearms users? Do individual citizens have gun rights independent of state control? Or not? Goodness gracious, who knows?

In upcoming posts, I'll look at some recent gun rights speeches on both sides, and relate them to the Second Amendment's creative ambiguity.

P.S.: If you visit Washington DC, my hometown, be sure to visit the National Archives and look at the original Bill of Rights, which is on public display in the lobby, next to the nation's other founding documents. Very inspiring. 

No comments:

Post a Comment