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Amendment 2 is worded as an absolute:
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.
The prohibition on infringing upon the right of the people to keep and bear arms is not limited to the Congress. Although I think that some regulations are acceptable (such as requiring registration of ownership for firearms) this simple wording does not seem to allow any room for the banning of handguns or automatic weapons. (Personally I don’t see any reason that people would have cause to own automatic weapons but that’s beside the point.) The only possible wiggle room I can see in the wording is the purpose of having a well regulated militia as the reason for the right. If the goal is for a well regulated militia it could be argued that the government (state or federal) could prohibit gun ownership for convicted felons or those diagnosed with some significant type of mental disability because gun ownership among such people would detract rather than advance the cause of a well regulated militia.
2 replies on “Constitutional Amendment II”
Many people argue that the 2nd amendment protects arms with the sole purpose of having a “well regulated Militia.” The best evidence I’ve found to refute that claim based on the syntax of the amendment comes from the Northwest Ordinance of 1787, which says:
“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
This sentence has the exact same structure as the amendment. To me, it says that education shall forever be encouraged because religion, morality, and knowledge are necessary. Now, whether or not education actually brings about religion, morality, and knowledge, education should be encouraged with the hope that it will, but the cause (education) is separate from the potential effect (r, m, and k).
If we use this analysis with the 2nd Amendment, then the right to bear arms should not be infringed because a well-regulated militia is necessary. However, whether or not the militia happens, the right to bear arms generally must be protected to allow for the possibility, but the cause (right to bear arms) is separate from the potential effect (well-regulated militia).
Perhaps I’m stretching this a bit though…what do you think?
I’m not sure how much you are stretching it. My argument was that restrictions on gun ownership for convicted felons or those diagnosed with some significant type of mental disability might actually help serve the purpose of creating a well regulated militia.
The only thing we know for sure is that the first generation under the Constitution clearly valued their right to keep and bear arms.