What Does the Second Amendment Really Mean - Carlos Gamino, Wisconsin Attorney By Carlos Gamino

“… The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

This was the cornerstone of the late Justice Antonin Scalia’s majority ruling in 2008, the last time the Supreme Court weighed in on the contemporary merits of the Second Amendment.

To this, Scalia added, “It is not the role of this court to pronounce the Second Amendment extinct.”

Regardless of historical context or any looming public safety crisis, the right of private citizens to keep and bear arms stood, unchanged, in a 5 to 4 decision.

Now, in 2016, following the worst mass shooting in U.S. history, deciding whether the supposed “enshrinement” of any constitutional right outweighs the government’s responsibility to provide for the public’s wellbeing will inevitably be reopened for debate.

The Islamic State and other geopolitical concerns aside, let’s take some time to focus on the Second Amendment and the most recent decision regarding its continued validity.

In the Bill of Rights—the first ten amendments to the U.S. Constitution, the second contains a mere 27 words:

“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.”

Regarding the contemporary debate, a question still looms over whether or not the amendment says anything whatsoever about the right of an individual citizen to own a firearm for private use outside the context of “a well regulated militia.”

In the 2008 ruling, Justice Scalia addressed this issue by simply splicing the amendment into two parts which he labeled, respectively, “the prefatory statement of purpose” and the “operative clause.”

“A well regulated militia, being necessary to the security of a free state…” constitutes the prefatory statement of purpose, which according to Scalia, does little more than make known the reason that the right to bear arms was being protected.

Under Scalia’s interpretation, the framers were afraid that the new national government would try to disarm the population, as the British had tried to do.

“The right of the people to keep and bear arms…” is the operative clause, which again, according to the late justice, speaks to the freedom of all citizens and holds over time, regardless of the fact that organized militias are a product of a bygone century. Today, each state’s “well regulated militia” is its National Guard.

Contesting that analysis, Justice John Paul Stevens said on behalf of the minority that the Second Amendment’s structure was notable for its “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense.”

In essence, Justice Stevens maintained that if the amendment was intended to address the rights of individuals outside of militia service, it would have done so in plain English, which it clearly does not.

For many citizens, however, the right of the people to arm themselves has always been synonymous with the blanket concept of liberty, which is subject to the preservation of individual rights. Moreover, it has been argued that because other amendments (such as the first and fourth) speak directly to individual rights, so too does the Second Amendment.

But does this allow for a reinterpretation of the Constitution’s intentions as written? As the Supreme Court decision stands, yes. Nevertheless, as deplorable acts of violence utilizing easily obtained high-capacity weapons continue unchecked, interpretation of the Second Amendment may be up for reexamination—particularly when a new president assumes the Oval Office next year.

What Do You Think About the Second Amendment?

I’d love to hear your take on what the Constitution’s framers thought when they wrote the Bill of Rights, and particularly the Second Amendment. Share your thoughts on my Facebook page or on my Twitter feed!

Carlos Gamino