Let’s Talk About That Whole ‘Well Regulated Militia…’ Bit

If I could go back in time and advise the Founding Fathers on one thing, it would probably be to advise them to leave out that whole part of the Second Amendment at the beginning, “A well regulated militia being necessary to the security of a free state” thing. I get what it was for and all, but it’s caused an untold amount of misunderstanding and misinformation.

It’s kind of ridiculous, but there’s a massive debate about what those 13 words actually mean with regard to the right to keep and bear arms.

For many, it’s clearly an indication that the amendment only applies to the militia, that it’s a collective right that meant the state could maintain guns; that the rest of the Second Amendment doesn’t actually apply to you and me.

However, a piece over at Reason debunks that claim.

Scholars divide the Second Amendment into two clauses: the prefatory and the operative clauses. Each serves a different purpose. The prefatory clause—the subordinate opening about a well-regulated militia being necessary for security—provides the amendment’s historical and cultural context. Meanwhile, the operative clause—the final half prohibiting infringement—unequivocally asserts the natural right of gun ownership. If the Second Amendment were a meal, the prefatory clause would be the appetizer, and the operative clause the main course.

From a grammatical standpoint, the prefatory clause is nonrestrictive. This introductory throat-clearing provides additional details unessential to the sentence’s core meaning. Justice Antonin Scalia affirmed this interpretation in District of Columbia v. Heller, the 2008 landmark legal precedent that secured the individual right to firearms. The prefatory clause, Scalia argued, “does not limit the latter grammatically, but rather announces a purpose.” 

Gun control advocates tend to elevate the prefatory clause’s militia reference, suggesting it’s a precondition for the right to firearms. Some even claim that the Second Amendment preserves the right to maintain a militia. 

Yet many linguistic scholars reject this interpretation. Kari Sullivan, a senior lecturer in linguistics at the University of Queensland, argues that the prefatory clause is neither internal nor conditional; instead, it’s temporal and external, meaning the opening words introduce its context and purpose. 

The amendment’s bifurcated construction mirrors other famous documents of the era. The Virginia Declaration of Rights, often considered the foundation of the Bill of Rights, also used the prefatory/operative structure. Regarding free speech, section 12 of the declaration stated: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” Prefacing a free press as “one of the great bulwarks of liberty” serves a similar prefatory purpose, adding colorful prose to the right articulated in the operative clause (i.e., can never be restrained but by despotic governments).

There is, of course, far more, including a strangely interesting discussion of punctuation in the Second Amendment as well.

However, in most debates, it’s the introductory clause that engenders so much discussion. They focus on the phrase “well regulated” without understanding its 18th-century meaning or they focus on the word “militia” and try to argue that because we have the National Guard, it doesn’t apply any longer.

But as noted above, even if you don’t completely dismiss the clause in and of itself, it’s still not a limiting clause. Saying why the amendment exists isn’t remotely the same as saying nothing beyond this purpose is permitted. Nothing is limiting in the clause at all.

Especially when you consider who “the militia” was at the time of the amendment’s ratification. It was all able-bodied free men between certain ages, which means guns for pretty much everyone in this day and age.

Of course, this isn’t going to sway the usual suspects. They don’t actually care about the Constitution, the Second Amendment, or anything else. They might claim to support it, but they see it more as an obstacle than anything else.

Gavin Newsom’s sad attempt at a 28th Amendment for gun control sort of illustrates that yes, the things they want run counter to the Second Amendment regardless of how you try to interpret that introductory clause.

But in the end, despite the protestations of the usual suspects, the truth is that not even the whole “well regulated militia” thing supports any case for gun control.