Ignoring Half of the Second Amendment

The framers of the Constitution of the United States exercised great caution and meticulous care in crafting the language of each constitutional article and amendment. They labored with deliberate intention over the form, organization, order, word choice and precise grammatical construction.

The Constitution was written to establish a government of laws, rather than men, to control oppression, vindictive punishment and arbitrariness on the part of the government. The predictability and accepted due process of the law is crucial for the operation in practice of the rule of law in government.

That is especially true in a case law system, practiced in the United States, because the judiciary relies heavily on the principle of stare decisis — to stand by precedent for stability, reliability and authority.

In a series of recent decisions, the justices of the U.S. Supreme Court have been negligent and careless in interpreting the language and the spirit of the Constitution. In so doing, including by overturning well-established precedent, they threaten to collapse the authority of the court and undermine the stability of law.

The Roberts Court seems to have converted the Supreme Court into a kind of PAC (although the worst of those cases preceded Roberts, in Bush v. Gore).

The Supreme Court’s June 28, 2010, ruling in a key Second Amendment case, McDonald v. Chicago, determined the extent to which local and municipal officials all over the country can regulate firearms.

In essence, the decision extended nationwide the gun rights the court granted two years earlier to the District of Columbia in Heller v. D.C. In its landmark 2008 ruling, the court overturned a long history of precedent and radically re-interpreted the Second Amendment as an individual right, rather than a collective-security right in the form of state-organized militias.

Only by ignoring the first clause so completely as effectively to delete it and exclusively focusing on the second clause of the Second Amendment could the court reach such a false and dangerous conclusion.

Such exclusive focus mangles the language of the Second Amendment, since the first clause grammatically controls the second clause and gives it its meaning. In effect, the court has illegally altered the Constitution and subverted its clear intent.

The very first words of the Second Amendment are: "A well-regulated militia …" The entire second clause of the Second Amendment, limiting government control over the right of the people to keep and bear arms, is in reference not only to a militia, but a well-regulated one.

The Amendment continues, "…being necessary to the security of a free State …." Thus, the Second Amendment is intended for the defense of the State, i.e., the government against external threats, which, at the time of the ratification of the Constitution, included territories controlled by Britain, France and Spain.

The word "being" in the first clause is part of a participial phrase, which functions as an adjective to describe what the militia does, and the entire first clause controls the predicate in the second clause.

The NRA and now the Supreme Court have improperly construed the second clause of the Second Amendment, completely ignoring the first clause, arguing that the Amendment provides a putative individual right for citizens to defend themselves not only against criminals but against perceived encroachments, tyranny or disagreeable laws and policies by the democratically elected government and its legally sanctioned law-enforcement agents.

There is no such right, there never has been such a right and the framers of the Constitution never intended for such a right to be so construed. Such a misconstruction supports sedition and is logically and textually as well as grammatically indefensible.

The Constitution was written in order to provide political processes by which the government operates and by which elections and changes in power would be managed peacefully.

The Supreme Court's decision in Heller provides the basis for undermining peaceful and stable government. Members of the Hutaree Militia, who planned to murder police officers, believed they were operating within constitutionally protected rights — and the Supreme Court's decision, perhaps unintentionally, has strengthened the position of like-minded people.

Candidates for public office have recently used alarming language and campaign signs, depicting rifle sights and urging citizens to exercise "Second Amendment options," which come close to inviting citizens to target their opponents and change government by force rather than elections.

The incidence of the use of guns to resolve even simple disputes, rather than discourse, arbitration and political processes, has been rising at all levels of society — most tragically in schools, where the use of gun violence to solve disputes is now widely perceived as normal.

Between May 26, 2008, and September 1, 2008, 125 people had been shot and killed in Chicago — which was twice the number of American service members killed in Iraq, and about the same as the number of American military personnel killed in Afghanistan over the same period.

Also in that period, 247 people were reported to have been wounded by guns in Chicago. Some shootings might have been accidental, but still resulted in death. As jarring as these figures are, Chicago is hardly America's most dangerous city.

In its rulings in McDonald v. Chicago and Heller v. D.C., the Supreme Court appears to be oblivious to the social impact its decisions have on the lives of ordinary citizens. The court's politicized errors cost lives.