Ruminations on the Second Amendment (from Jay)

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.

Until recently, I had questioned the notion that the Framers intended to equate "Militia" with "the right of the people to keep and bear Arms," even though that is how we would read the sentence today. The other day, a constitutional scholar on the radio convinced me otherwise. In writings from the period, he said, 95 percent of the instances of the phrase "bear arms" clearly referred exclusively to military use. Some state constitutions even included language relieving conscientious objectors of the obligation to bear arms, which would have made no sense had the phrase extended to individual gun ownership.

All well, then Scalia asserted yesterday that "the right of the people to keep and bear Arms," which in his view implies individual rights, was intended not as an equivalence for a militia but merely as a necessary prerequisite to one. (He does not take the position that the second comma, which incidentally is absent in some versions of the Bill of Rights, should be understood to imply a conjunction.) That seems to me to be a reasonable argument, one which goes a long way toward undermining the case made above.

But then I had another thought: If the Framers really intended that individuals should possess the fire power necessary to overturn a dysfunctional government, wouldn't we be forced to conclude that private ownership is countenanced for all types of weaponry?

At the moment what I think most likely is that it would hardly have occurred to the Framers that there would ever arise a compelling reason even to consider prohibiting guns for private use … but then they didn't live on today's street corners either. I believe that they did not specifically address the issue, thereby, if inadvertantly, leaving the states (and Congress) free to legislate as they see fit.