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Thursday, July 01, 2010

Second Amendment ≠ right to commit treason

Current mood: intellectual

The Second Amendment is one of the least understood texts in United States politics, so here I will briefly correct several common myths. I will start by presenting the complete text of the Amendment for future reference: 

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.
Note first that the Second Amendment says nothing about firearms. It simply says "Arms". This could mean firearms. It could mean nukes. It could mean any kind of weapons in general. It could mean all sorts of things. Like many key words and phrases in the Constitution (and its amendments), the exact meaning of "Arms" is deliberately left open to interpretation. (A famous example of constitutional ambiguity is the so-called "necessary and proper" clause.)

Second, as Inigo Montoya tells Vizzini, "I do not think it means what you think it means". There are many possible interpretations of the Second Amendment, which may or may not involve constitutional protection of a private citizen's rights to ownership.  To borrow from Wikipedia:

Three grammatical interpretations traditionally informed jurists, scholars and the general public on the correct reading of the Second Amendment.

One interpretation, known to grammarians as a nominative absolute construction, proposes the Second Amendment consists of an opening justification phrase or qualifying clause, followed by a declarative clause where the opening phrase modifies the main clause much as an adjective would modify a noun. Under this interpretation, the opening phrase is considered essential as a pre-condition for the main clause. This was a grammar structure that was common during that era. This grammatical description is considered by some to be consistent with the concept of the Second Amendment as protecting a collective right to firearms for members serving in a select militia.

Another interpretation holds the Second Amendment contains an opening prefatory or amplifying clause followed by an operative clause. The opening phrase is meant as a non-exclusive example—one of many reasons for the amendment. This interpretation is consistent with the position that the Second Amendment protects a modified individual right. In Heller, the Supreme Court endorsed this description of the Second Amendment. Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.

A third interpretation views the first clause as simply explanatory; neither a qualifying nor amplifying clause. So while militia service is the stated justification for protecting the right to keep and bear arms, it is not a pre-condition on that right. Adherents to this interpretation observe that the latter clause of the amendment still guarantees the right to "the people," and, therefore, is not limited to members of a select militia. This style of syntax was common for the time and similar language exists in the Copyright Clause of the U.S. Constitution.
I personally find the first interpretation most likely, as it seems most stylistically consistent with the rest of the Constitution. (I am a literature student, not a historian or political scientist.) However you choose to interpret it, the Second Amendment does not give you the right to take up arms against your government
. This particular act is, in fact, named and clearly defined in Article III, Section 3 (emphasis mine):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Nevertheless, I've seen attempts to argue the Second Amendment as a right to treason. A common argument is based on the preamble to the Declaration of Independence, which reads in part:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The fallacy here is that the Declaration of Independence is not a legal document
, but an attempted philosophical justification of treason against Great Britain. It is a beautifully written document of great historical significance, hence its preservation and prominent display in the National Archives, etc., but it is not a part of the Constitution or laws of the United States of America.

In short,

  • the Second Amendment is not about firearms;
  • it may or may not be about individual private ownership;
  • regardless of the above, it is certainly not a protection for treason; and
  • you won't change that by citing our nation's most famous defense of treason.

(By the way, to those worried about a rogue government taking over America: It would be very difficult for a lunatic fringe, left or right, to completely take over the government and establish a totalitarian dictatorship or whatever it is you're worried about. It's almost as if the Founding Fathers designed it that way. Ironically, the only people who seem to want to "go rogue" -- if you take their rhetoric at face value -- are the Tea Party, who have built their entire political platform on such fears.)

5:00 am - 4 comments - 3 Kudos