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The Second Ammendment

The Second Amendment - which in practice, if not intent, means that there are an estimated 300 million guns scattered around various nuts, criminals and juveniles as well as law abiding citizens of the USA  - leaves most non-Americans scratching their heads. It is only one sentence in the Constitution - but has generated forests of paper in trying interpret the motives of the Founding Fathers - who, it should be remembered, were 18th century gentlemen living in a rural, frontier society. This was a long way from the gang infested projects of modern Baltimore - and the weapons of the time were muskets not AK47s.

The text of the amendment is as follows:  "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."

This is not meant to be a legal thesis, but it does seem that the focal clause of this sentence is to do with the militia - and the right to bear arms is what comes after that. I suspect that if you asked anyone on a Clapham Omnibus  (who wasn't a lawyer), they would agree with this. 

The latest landmark Supreme Court judgment on the matter was Colombia vs Heller in 2008. The minority judgement, voiced by Justice Stevens takes the same Clapham Omnibus view......

"The Amendment's text does justify a different limitation: the "right to keep and bear arms" protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase "bear arms" to encompass civilian possession and use, they could have done so by the addition of phrases such as "for the defense of themselves". 

Quite.

However the majority view, as expounded by Justice Scalia, took a much more lawyerly - some would say Jesuitical - view that descends into linguistics and seems to focus entirely on the intentions of the drafters rather than attempting to help the Constitution into the 21st century. It is deeply political and the fingerprints of the NRA and the Republican right are all over it

"The phrase "bear Arms" also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: "to serve as a soldier, do military service, fight" or "to wage war." But it unequivocally bore that idiomatic meaning only when followed by the preposition "against,". Every example given by petitioners’ amici for the idiomatic meaning of "bear arms" from the founding period either includes the preposition "against" or is not clearly idiomatic. In any event, the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died."

This is the same Justice Scalia who has just died, leaving a vacant a highly politically contested seat for Obama to fill - if he can - in the waning months of his presidency, without it being vetoed by Congress. It didn't go unnoticed that the President did not attend his funeral.....

In the meantime us non-Americans (joined it would seem by Obama) continue to scratch our heads at the lunacy of it all as kids with machine guns run amok in school yards. Even if there was some effort at proportionality it would help. As Robin Williams put it, "The Second Amendment says we have the right to bear arms, not to bear artillery."
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