Constitutional Law

Comment on clarity of the 2A

Over at Brett's Constitution.

I think the meaning of the 2A is only ambiguous if a reader assumes (as did the Court in Miller) that the two clauses must somehow interrelate at a substantive level. If one recognizes (as I suggested in a 1985 law review article, see the left sidebar for it, The Second Amendment and the Historiography of the Bill of Rights) that the two clauses had different constituencies, ancestry, and purposes, the meaning becomes much more clear. The Framers had to please two groups, one of which wanted praise of the militia system, the other of which wanted a guarantee of a right to bear arms. (And some, like Geo. Mason in 1788, wanted both). The two clauses got put in one amendment because they had a common subject, arms, not because one controlled the other. Just as the intellectual rights -- press, speech, assembly, petition, and religion -- all got stuck together in the 1A.

Separate the two and the only ambiguity is how far the right to arms extends. That's the same as the situation with the First Amendment -- does freedom of religion protect polygamy, or freedom of speech cover "fighting words" or defamation?

Full post as published by Of Arms and the Law on March 25, 2008 (boomark / email).