The Second Amendment — and a Copy Editor’s Suggestions for Improvement
I want to approach the Second Amendment as something that’s just landed on my desk for a final review. We can discuss the back story later of how this Amendment came to be, but right now I’m only interested in reading this single sentence — the Second Amendment to the United States Constitution — as copy to see if it’s ready to go.
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 not ready to go. The first thing that jumps out at me is the missing hyphen for the compound adjective — like so: “well-regulated Militia.” Also, most people today would lower case “Militia” and “Arms.” But that’s a stylistic choice that’s neither here nor there.
“Being necessary to the security of a free state”? The modern convention is “being necessary for.” There are many little things like this sprinkled throughout various writings by the Founding Fathers, where archaic words or phrases crop up that often sound awkward or stiff to the modern ear. Benjamin Franklin has a remark that begins “History affords us many instances of the ruin of states…” Affords us? No one today says “affords us.” “History gives us many instances” is what people would write.
As to the second half of the Amendment, “the right of the people to keep and bear Arms, shall not be infringed” is fine on its own though we could do without the comma — maybe. More on that in a moment. But when you step back to look at the sentence as a whole, when you put the two parts together — the first part is about militias; the second seems to be about the general populace — and read them as the intended single sentence, it doesn’t gel. Something seems off, something’s missing. Let’s look at it again:
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.
Are those nonessential clauses? Plural, because there are two clauses here: “being necessary to the security of a free State” and “the right of the people to keep and bear Arms.” It’s often the case (but not always) that a clause or phrase surrounded by commas is nonessential, which is to say the sentence can survive without it. Here’s a good example that I purloined from Purdue University’s online writing lab:
That Tuesday, which happens to be my birthday, is the only day when I am available to meet.
The fact that Tuesday is the person’s birthday is superfluous to the meaning of the sentence: Tuesday is the only day when the person is available to meet, so “which happens to be my birthday” is a nonessential detail.
Returning to the Second Amendment, if we were to remove the first clause, we’d get this:
A well regulated Militia, the right of the people to keep and bear Arms, shall not be infringed.
That makes no sense. Maybe it’s the second clause that’s nonessential. Let’s put the first clause back in and take out the second one:
A well regulated Militia, being necessary to the security of a free State, shall not be infringed.
That makes more sense. It becomes even clearer if we were to rearrange a couple of things and add a few words: A well-regulated militia shall not be infringed because militias are necessary for the security of a free State.
But what about “the right of the people to keep and bear arms”? The Founders thought it essential to keep that phrase in, and so this clause must have some connection to the well-regulated militia. And do keep in mind that history shows that “to bear arms” is a military term. Some historians may find instances where “bear arms” isn’t necessarily referring to military matters— that “bear” is just another word for “carry” — but to the extent that this is true depends on context, and the context in which “to bear arms” appears in the Second Amendment points directly to the subject under discussion: militias — and the assurance that the men who were part of them were properly armed and trained.
But let’s return to the nonessential clause. When we put this “right of the people” clause back in as originally intended, there’s still something clunky and awkward about the sentence. I think I see what’s missing: a certain clause that would greatly clarify matters. If we stick this clause in, this is what we get:
A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, while serving in the militia, shall not be infringed.
That’s better. “While serving in the militia” is not only essential to the meaning of the sentence, it actually makes the meaning clearer. To make things even clearer, let’s modernize the language a bit and see what we get:
Seeing that a well-regulated militia is necessary for the security of a free State, the right of the people to keep and bear arms, while serving in the militia, shall not be infringed.
or:
A well-regulated militia is necessary for the security of a free State, and so the right of the people to keep and bear arms, while serving in the militia, shall not be infringed.
And maybe some emphatic em dashes would put even greater emphasis on the matter:
A well-regulated militia is necessary for the security of a free State, and so the right of the people to keep and bear arms — while serving in the militia — shall not be infringed.
Most modern defenders of the Second Amendment will object to this edit by saying, “If the Founding Fathers didn’t stick in ‘while serving in the militia’ it means that serving in a militia wasn’t the point of the Amendment.” I’m not buying it, for two reasons: a) a well-regulated militia is the subject of the sentence, which means that what follows will dovetail back to the subject; and b) I always return to the sensible presumption that if the Founding Fathers were speaking only about the general populace’s right to bear arms, they never would have mentioned militias. Think about it: If that the Second Amendment is essentially about the right of adults to possess weaponry, as many contemporary people today believe,¹ why mention militias at all?
Further to this, Michael Waldman, author of The Second Amendment: A History, points out that historians know that a discussion of militias was central to the debate because James Madison’s notes on the Constitutional Convention never mention a single reference to an individual’s right to own a firearm. So why didn’t something along the lines of “while serving in a militia” make it into the Amendment? After all, a similar idea was certainly on James Madison’s mind. Take a look at this, from the First Annals of Congress, June 8, 1789: “A well regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country.”
Look, the Founding Fathers weren’t ones to keep their cards to their chests. They were creating a new system of government, and if they wanted to make clear that people (only white male adults, of course) should have an unfettered right to walk around anywhere with a musket, the Second Amendment would have been written, plainly and bluntly, like this:
The right of the people to keep and bear Arms shall not be infringed.
Boom. Plain and simple. Because of my excision, the Second Amendment now says, with unequivocal clarity, that the right of the people to keep and bear arms shall not be infringed. Thing is, the Second Amendment, as written, does not say that. It doesn’t even come close to saying that. How do we know? The answer has to do with all that business about a militia. What is a militia anyway? Here you go:
That’s serious stuff. Look at all the key words and phrases: military force, regular army, eligible by law for military service. And yet most Second Amendment defenders will say “Forget about the militia stuff. That’s just a prefatory clause for the end of the Amendment, which is the main point.”
A prefatory clause? Why would a prefatory clause be needed when you can get straight to the point with the right of the people to keep and bear Arms shall not be infringed? What the Second Amendment says is that in a time when a young government didn’t have a permanent army² no restrictions would be placed upon civilians who were serving in a military force.
Now, because of the ongoing fear of having a permanent army, the Continental Army, formed in 1775, was dissolved in 1783. However, two regiments did remain, and it wasn’t until 1791, and particularly because of the aftermath of the Battle of the Wabash, that talk of the need for a permanent army began in earnest. In time, those two regiments led to the Legion of the United States, which later served as the foundation for the United States Army. So as the permanent military forces of the United States began to take shape, it would seem that armed and trained civilians (militias) are no longer needed, which suggests that the Second Amendment ought to be made “null and void” by way of a formal repeal.
In light of yet another mass murder — the slaughter in Virginia Beach, Virginia, is, as of this writing, the seventh mass shooting this year — what is to be done? History shows that the government can create laws and then change course. The Amendment that gave us Prohibition later resulted in an Amendment that repealed Prohibition. Can the Second Amendment be repealed? Should it be repealed? Some people say that it should. So what do we do? Do we dump the Second Amendment and recast our understanding of gun ownership as a privilege (like owning a car) instead of as a “right”? No doubt hunters will be up in arms, pun intended, over any such talk.
But let’s consider the supposed private “right” to own firearms. Should any adult be able to own a shoulder-fired missile? Do you think a line should be drawn somewhere, that maybe the civilian population shouldn’t have access to Uzis and hand grenades? No, I’m not engaging in hyperbole. I’m simply noting that weapons can range from a crude slingshot to a bow & arrow to a submachine gun and that along that continuum society draws a line: You can own this kind of weapon but not that kind of weapon.
Consider automobiles. Society draws a line when it comes to road safety and the speed with which one can drive a car. So maybe it’s time to reconsider where that line should be drawn with regard to owning firearms (and when it comes to CBRN weapons, that line has already been drawn). True, there’s no question that hunting will always be with us, which means rifles aren’t going anywhere. Fine. How about weapons that fire multiple rounds in quick succession because they are expressly designed to kill on a mass scale? A weapon of war, in other words. I say all civilians should be prohibited from buying them. Going down the line to smaller weapons — and here’s where many readers will hotly disagree with me — I would be happy to live in a world where only three classes of people had access to handguns: the military, the police, and security guards.
William Blackstone’s Commentaries on the Laws of England was first published in the 1760s, and we can readily see why these commentaries had a profound effect on the Founding Fathers. An excerpt:
The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up on one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control…
But this doesn’t mean anyone can do whatever they want whenever they want. One individual is a person living in a society among others who are also pursuing their natural liberty such that, as Blackstone reminds us:
“[E]very man, when he enters into society, gives up a part of his natural liberty. [T]his species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty [that] is sacrificed to obtain it. … For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power; and then there would be no security to individuals in any of the enjoyments of life.”
Gore Vidal once opined on “the pursuit of happiness”: “No one is quite sure just what Jefferson meant, but I suppose he had it in mind that government would leave each citizen alone to develop as best he can in a tranquil climate to achieve whatever it is that his heart desires with minimum distress to other pursuers of happiness.” In other words, there must be some restraints on people so that one person’s pursuit of happiness doesn’t interfere with another person’s pursuit of happiness. Or as Blackstone wrote, “Natural liberty [should be] restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.”
Sounds good to me. Let’s remove handguns and AR-15–styled weapons from the general population. If that idea is too radical, maybe we could institute a two-guns-per-person policy. Better yet, if we were to have a voluntary nationwide buyback on par with what Australia did in 1996 (though Australia’s was a mandatory buyback), I believe that a greater measure of peace and tranquility would be restored for the general advantage of the public.
Postscript (2020): I discovered, several months after writing this essay, that Justice John Paul Stevens made the same argument (about the need to insert a missing clause into the Second Amendment) in his book Six Amendments: How and Why We Should Change the Constitution.
¹. Kurt Andersen put it succinctly in Fantasyland: “We stockpile guns because we fantasize about our pioneer past, or in anticipation of imaginary shootouts with thugs and terrorists.”
². Madison and Jefferson were particularly leery of “standing” armies; see the authorization for military appropriations in Article I, Section 8, Clause 12 of the U.S. Constitution (an appropriation that’s done every two years).
Barry Lyons is a freelance writer living in New York City. Here’s an essay on words and phrases that annoy me.
