What does Second Amendment really say?

Posted Online: May 01, 2013, 12:30 pm
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By Mark W. Schwiebert
Since the tragic December shooting at Sandy Point Elementary School in Newtown, Conn., much has been said and written about the Second Amendment. However, relatively little I've come across has discussed the actual language of that amendment.

It therefore seems appropriate to take another look at what it says and the context in which it was written.

The actual wording reads: "A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms shall not be infringed".

This is part of the first 10 amendments to the Constitution, commonly known as the Bill of Rights. These provisions were added after the First Congress convened in 1789 to prevent the kind of tyranny the Founding Fathers experienced at the hands of the British.

This is illustrated by the surrounding amendments: the First Amendment concerns free speech and the right to "petition the government for redress of grievances"; and the Third Amendment bars the quartering of troops in houses -- a nasty practice the British employed during our Colonial Period.

The "well regulated Militia" was regarded as a bulwark against such tyranny. The related right to bear arms meant the militia would be equipped to do its job should it be called upon to do so. Militias had been mustered throughout the colonies during the War for Independence ending in 1783, and their usefulness was still fresh in the minds of the founders in 1789.

Likewise in 1789, we had no standing army to defend the nation from foreign aggressors like England. Neither did we have organized police departments to maintain public order and protect against criminal behavior. A "well regulated Militia" -- not a group of individuals taking the law into its own hands -- was seen as a needed tool to cover for these inadequacies.

The Federalist Papers, perhaps our best guide to the intentions of the founders in drafting the Constitution, discuss the militia only at No. 29 of the 85 Papers. This elaborates on how the Constitution allowed the federal government to call out the militia, but retained for the states the authority to appoint officers. The militia itself was to be called out "to execute the laws of the Union, suppress Insurrections, and repel Invasions." (Article 1, Section 8 of the Constitution)

For over 200 years, the logical link between the right to bear arms and a well regulated militia prevailed. Only in 2008 did this change. In that year, five U.S. Supreme Court judges reversed this 200-year history. (Interestingly, these were the same five judges who handed down the Citizen's United decision that unleashed the flood of campaign spending we had to endure in the 2012 election.) In the District of Columbia vs. Heller, the court for the first time ruled that language regarding a "well regulated Militia" could basically be disregarded and that the right to bear arms was independent of this provision.

Now the customary rule of law in interpreting statutes, constitutions, or other documents is that "the plain meaning" should be given the language of the document. This requires reading the instrument as a whole and giving effect to clarifying phrases in interpreting its meaning. Here, a narrow majority of the Supreme Court chose essentially to dismiss these rules and its own prior decisions, to conclude the right to bear arms was independent of the need for a well regulated Militia. Whether this is good public policy or not, the legal reasoning of the court was, at best, questionable. Four judges made this point emphatically in dissenting opinions.

However, even the Heller majority allowed for certain restrictions on this expanded right to bear arms. For example, the court stated restrictions on possession of guns by felons or the mentally ill could be proper; as could restrictions prohibiting guns from schools or government buildings.

Unfortunately, how you keep guns out of the hands of the mentally ill is anyone's guess. Recall Adam Lanza, the mentally disturbed Newtown, Conn., killer who turned his mother's own guns on her before using those same guns to kill nearly two dozen schoolchildren and then himself. Some argue "guns don't kill people; people kill people," but it is undeniable that a whole lot fewer children -- if any-- would have died if Adam Lanza had been armed with a knife or a slingshot instead of a high powered, rapid-fire rifle.

It is also true that there are multiple causes of the violence in our culture today. The entertainment media -- citing the First Amendment -- too often behave irresponsibly in glorifying violence in movies, TV programs, and video games. And we have certainly underfunded mental health care for far too long. Each clearly requires attention.

But given these conditions, does it not seem that peddling ever more guns with high capacity ammo clips is a little like carrying a can of gasoline into a room full of static electricity? Our gun homicide rate is among the top 10 in the world – right up there with the likes of El Salvador, Guatemala, and Columbia.

Can anyone seriously suggest the Founding Fathers intended this? The plain meaning of the Second Amendment certainly doesn't suggest it. Neither does our common sense.
Mark W. Schwiebert, an attorney, served as mayor of Rock Island for 20 years.


Local events heading

  Today is Monday, Oct. 20, the 293rd day of 2014. There are 72 days left in the year.

1864 -- 150 years ago: The store of Devoe and Crampton was entered and robbed of about $500 worth of gold pens and pocket cutlery last night.
1889 -- 125 years ago: Michael Malloy was named president of the Tri-City Stone Cutters Union.
1914 -- 100 years ago: Dewitte C. Poole, former Moline newspaperman serving as vice consul general for the United States government in Paris, declared in a letter to friends that the once gay Paris is a city of sadness and desolation.
1939 -- 75 years ago: Plans for the construction of an $80,000 wholesale bakery at 2011 4th Ave. were announced by Harry and Nick Coin, of Rock Island. It is to be known as the Banquet Bakery.
1964 -- 50 years ago: An application has been filed for a state permit to organize a savings and loan association in Moline, it was announced. The applicants are Ben Butterworth, A.B. Lundahl, C. Richard Evans, John Harris, George Crampton and William Getz, all of Moline, Charles Roberts, Rock Island, and Charles Johnson, of Hampton.
1989 -- 25 years ago: Indian summer is quickly disappearing as temperatures slide into the 40s and 50s this week. Last week, highs were in the 80s.

(More History)