Disarmingly Ignorant

12 03 2010

Category: Law, Politics

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.

That’s the Second Amendment to the US Constitution (text from US National Archives) which is currently being considered by the Supreme Court (where its meaning is continually debated). I thought I’d experiment with a little constitutional analysis of my own…

Just like the framers of the Constitution, I trained as a lawyer in the English legal tradition – I did it a bit later than them. I was interested to see if it gave me any insight into their drafting, not having read it before.

I am wholly ignorant of the vast quantity of learned and detailed constitutional jurisprudence; for the experiment that’s an advantage. I wanted to see if it had a plain and natural meaning to me. It did. Kind of…

On my reading the most important part of those 27 heavily litigated words is not about guns. The most important element is the founding of ‘a free state.’  Here’s how the logic of the sentence flows from there:

  • We are setting up a free state;
  • that free state needs to be secure;
  • to make it secure needs a well-regulated militia;
  • a well-regulated militia needs to be armed;
  • therefore the right of the people to bear arms shall not be infringed

The logical gap between the last two elements is the widest of that sequence and it would be good to know what is meant by ‘people‘ – whether it means individuals or refers collectively to the body of citizens.

In the Constitutionpeople‘ is only used twice and refers to the citizen body. An individual is a ‘person‘ or Citizen‘.

In the Bill of Rights (which includes as Article IV, the Second Amendment), ‘the people‘ are referred to five times. Leaving aside the Second Amendment, it seems clear that every other use of ‘people‘ refers to the citizen-body (i.e. rights held collectively rather than individually).

Person‘ is mentioned in two of the amendments in the Bill of Rights (Fourth and Fifth). Both times it seems to refer to rights held as an individual. In the Fourth Amendment both ‘people‘ and ‘person‘ are used and it seems clear to me that this shows the creators of the document intended to refer to ‘the people’ as the collective rights held by the body of citizens saving ‘person’ for the individual:

The right of the people to be secure in their persons, houses, papers…

I can illustrate what I mean with the Fifth Amendment which reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…

If you changed that to read ‘The people shall not be held to answer for a capital, etc…’ the meaning would be wholly altered and made collective.

So where have I got to? My uninformed conclusion would be that because of the logic of the sentence, and because it refers to ‘the people,’the right is a collective one not an individual one; it is only a right open to a militia made up of members of the citizen body. Perhaps a contemporary example would be Switzerland or Israel, both with citizen armies whose reservists keep their weapons.

But there also appears to be a more fundamental qualification; the people only need to have the right to guns for a militia because that’s the best way to preserve the security of the state. If that stops being the best way to preserve the security of the state then the right disappears.

If that weren’t the case they could just have written:  ‘Every citizen has the right to bear arms. That right shall not be infringed.’ They didn’t write that.

You’ll have noticed that my attempt to see if there’s a clear and obvious meaning to the Second Amendment has started to suck me into constitutional textual analysis – those are the bits you skipped when your eyes started to glaze over. It’s not surprising (the need for analysis not the glazed eyes, but that’s not surprising either).

It’s the reason I’m not a fan of written constitutions. To almost all citizens of free and democratic states on the planet that would sound absurd – a constitution must surely be a cornerstone of a free and democratic state. Yet the free and democratic state I live in does not have a written constitution.

Think about it like the English language; some languages are constrained by formal rules set out by official academies. English grows, develops, mutates without any control. In the past that’s how the British Constitution was; there were documents that went towards its make-up but there were also legal rulings, and conventions which weren’t set out anywhere. It meant it could mould itself and develop with a changing society.

An attempt to work from a single, simple, document freezes ideas and intentions at a moment and forces current and historical interpretations to be undertaken whilst trying to interpret historical documents in the light of vastly different societies operating in a vastly different world.

An effort to simplify and make clear can do the exact opposite; create additional opacity and confusion that has constitutional lawyers gleefully dancing on pin-heads for decade after decade.

Most constitutions can be amended of course, but the problem, as with the American Constitution, is that if they are a fundamental part of the state’s identity they take on the aura of a holy document, and changing holy documents hasn’t proven to be that easy or popular over time.

There are twenty seven words in the Second Amendment. How many have been written and spoken in courts over the years in an attempt to finesse what they mean?



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