A grammatical analysis of the 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.”

These 27 words of the United States Constitution may be some of the most hotly debated words around the world other than “You are the rock on which I will build my church.” While Jesus’ commission to St. Peter has been translated through dozens of languages, the text of the 2nd Amendment has always been English. Thus the confusion around the meaning of this passage is between “what it says,” and “what people want it to say.”

The crux of the question comes down to which clauses of the Amendment are dominant and which clauses are subordinate. Because Madison proposed this amendment – rather than Jefferson, who was a grammarian – the phrasing can be a little difficult to understand at first glance. While it is readily apparent to anyone who has read the Federalist and Anti-Federalist papers (letters between Jefferson and Madison, along with others) the meaning should not be in question; basic sentence mapping can identify which clause is dominant and how the subordinate clauses augment the message.

The Liberal Argument

The liberal argument around the 2nd Amendment presents the idea that the first clause “A well regulated militia,” is dominant because it appears first in the sentence. If this would be the case, then the meaning of the amendment would simply refer to the powers of the militia (the National Guard, according to liberals) to posses weapons. Fortunately for millions of Americans, this is legally, grammatically, and historically inaccurate.

Legally, the argument that because it came first it’s more important is flawed from the beginning. When looking at clauses, sections, and articles amending a document, the parts that come later dictate the parts that come earlier. Because this is a single sentence, all parts would have the same ‘force of law’ because they were all adopted at the same time. Arguing that “because it is first” simply looks at the placement of the words, not the placement of the meaning, thus this phrasing does not determine the meaning of the passage.

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Grammatically, “A well regulated militia” seems to be the subject of the sentence at first glance. It is not. If you combine “A well regulated militia” with any of the other clauses in the passage, the sentence does not stand. “A well regulated militia, being necessary to the security of a free state…” is not a sentence. Nor does “A well regulated militia, the right of the people to keep and bear arms…” function as a sentence. Finally, “A well regulated militia, shall not be infringed…” is also not a sentence; therefore, militia cannot be the subject of the sentence.

Historically, advocates for “A well regulated militia” being the key point of the amendment are unfamiliar with Madison’s work, and the work of the Continental Congress in general. If people are curious how the 2nd and 10th Amendment interact, it is simple – James Madison wrote both of them. James Madison (along with most of the Continental Congress) was an advocate for state and individual rights. Madison argued against a standing army (which technically is still illegal). The supposition that he wanted a National Guard-like entity to be the only group with weapons is absurd.

As this argument is incorrect on so many levels, it is hard to believe that it is still espoused by members of Congress; however, we also need to remember there is a sitting member of Congress that believes that Guam may capsize if too many people get onto it, or that the Federal Reserve will function managing a digital currency any better than it has functioned running a conventional currency. “A well regulated militia” is a preamble clause of the 2nd Amendment, which is a formality that fell out of favor in English. According to the United States v. Wood, (299 U.S. 123, 142 (1936) preamble clauses’ functionality “depend on the terms or nature of the particular clause” which in this case is the opposite of what anti-gun liberals are arguing.

Conservative Argument

Many conservatives look to the last clause – “Shall not be infringed” – as the dominant clause in the amendment. Like the oversimplification presented in the liberal argument, this is also incorrect. Once again, we see problems arise legally, grammatically, and historically in a pure reading of “shall not be infringed” as a dominant subject matter clause. Working through the amendment looking at this argument breaks down some of the current “common sense” conservative arguments.

Initially, conservatives make the same mistake liberals make when looking at the macro-legal format of the amendment. In a document, that which comes last overwrites that which came first. It is how the amendment process works. However, even thought the word order of the amendment is how it stands, the latter clause does not supersede the preamble clause, because they were written at the same time. This means legally, neither clause has more weight than the other clause, because as an active passage of the Constitution, both have supreme weight.

Grammatically, we have seen the last clause and first clause “A well regulated militia” do not fit together and are just gibberish when placed alone. Likewise “being necessary to the security of a free state… shall not be infringed,” does not make sense either. Hence many conservatives rush to state, “The right of people to keep and bear arms, shall not be infringed…” as the whole meaning of the amendment. Once again, it is not. There are two very important parts to the amendment and the conservative reading ignores one of them (they are right on the “right to bear arms…” portion, however).

Historically, ignoring the first clause is like ignoring any clause of a law – it doesn’t look at how the law was passed. Every word in a law is scrutinized. The reason that many laws are convoluted is because the people scrutinizing the laws are morons – we elect our leaders in a paid-for popularity contest for goodness sake. During the Constitutional Convention, the delegates were land owners and business people who had put their lives on the line to ensure that the country had freedoms (and even they didn’t get all the rights on the first try).

To suggest that they simply put the “A well regulated militia, being necessary to the security of a free state,” in the statement for “sh*ts and giggles” forgets the seriousness of the passage. These men had put their lives on the line to ensure the birth of a free country (which took years to become free for everyone- and we still need freedom for some). This was not a liberal arts college book report, as some of the analysts treat it – this was life and death for them, so the whole amendment is relevant.

A Realistic Analysis

“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…” is a statement that needs all of its parts to get its bifurcated message across. This message has been weakened over the course of the last two centuries and we need to return to the original meanings if we are going to solve the issue of people using weapons to commit terrorist attacks across the country.

The first step is realizing that there are two messages in the 2nd amendment, just like there are multiple pieces in the first. The founders were not without the fault of jamming too much in little space; like any other politicians, they shoved two pieces in the place where one was meant to go. The first portion identifies that there needs to be a militia (not a National Guard): these are citizens who are trained and ready to use their firearms in defense of their community against threats from without and from within. These militias should not, based on the providence of the amendment, be controlled by the national government or the states, but can be called into service by the state when there is need. These are community groups who follow a set of guidelines from the state but are independent (hence their own flags). They are NOT groups of racists or activists who want to form their own private armies. We need to return to these concepts for issues such as the BLM riots in the summer of 2020.

The second issue in the amendment is that the rights of people to keep and bear arms should not be infringed. In this case, the “right” of “people to keep and bear arms” shall “not be infringed.” You would not think that this would be that complicated to understand. As the founders believed that rights were inherent in the person, the government does not need to give a person a right, he already has it. The Bill of Rights enumerates a list of rights that cannot be removed from a person without that person first committing a crime and second being convicted by a court when receiving due process.

The preamble of this passage states that we need a militia to defend the community during times of war and civil strife, run by the community. After the Civil War, corrupt judges “interpreted” the meaning into the National Guard (which has its place and nothing in the Constitution prohibits it, but it does not replace the militia). The primary clause of the amendment states, “the right of the people to keep and bear arms, shall not be infringed.” While the second can stand without the first, the meaning is lost. Contrary to liberal arguments, the right of the people to defend themselves is sacrosanct in a free nation. Without the right to bear arms, the “militia” just becomes another branch of the military, which a tyrant could use to oppress the people.

Catharsis

We do not have a gun problem in the United States, we have a crime problem. While recently guns have become the weapon of choice for mass killings, bombs and poison are still much more prolific in the killing of innocent people. Banning guns simply causes people to find other, more deadly ways to kill people. The world watched in horror as a crazed driver ran down people in London, it happened again in Paris, and again here in the United States. Bombs have an even higher death toll as they kill without the murderer needing to be in proximity to the victims. Poison is more effective still, yet we focus on guns because of the political ramifications.

Politicians have learned to use the gun debate to get their base riled up. Both parties know that their campaign lies are not effective. On the campaign trail, Democratic senators tell the people they will take away guns or “ban AR 15s” but when interviewed while in office say, “I support common sense gun reform and not banning any legal weapon.” Conservatives are not much better with the outcry, “they are going to take your guns.” No they are not, that is why we have a court and system of laws – if they take the guns without amending the Constitution, then we are no longer a nation of laws, and thus not a nation. The talking heads advocating for this are criminals, oppressing the civil rights of millions of Americans with hate speech.

Building a safer country means returning to the principles the Founding Fathers outlined. Bringing community policing and people owning weapons to protect themselves to the forefront of the argument needs to be a conversation we have. Schools are the government buildings that lack the basic security methods of bulletproof glass, armed guards, and CCTV. If we truly believe children are important, schools should have at least the same level of security as other government facilities. But they don’t, because every time a school shooting happens, politicians can use the deaths of children to get donations to be re-elected. The solutions cost less than the cost of a single campaign cycle – why not use the TV ad money, mailer money, and yard sign money to make the simple improvements need to school facilities to make them more safe? I do not know why we do not do this, maybe we should ask the people spending billions ($14 Billion in 2020, expected to double in 2024). If we took the money wasted on campaign promises that politicians do not intend to keep and divided it among the schools of the country, that would be nearly a quarter million dollars for each elementary, middle and high school in the country. Its not a gun problem, folks, its a problem with politicians who are spending money on stoking the hate, not making simple fixes to solve problems.


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Author Profile

Dr. Christopher W. Smithmyer
Dr. Christopher W. Smithmyer
Dr. Christopher Smithmyer is a writer for NRN, the Vice President of International Affairs at Brav Online Conflict Management, and an Adjunct Professor of MBA Business at Doane University. He is also part of the founding team at BlackWalletLTD, one of the leaders in stable coin 2.0 ecosystem maintenance. Dr. Smithmyer’s focus is international business and finance, along with reviews of board games, weapons platforms, and survival items.