I’m constantly amazed at how many people can read the text of the Second Amendment and still somehow believe it leaves the door open to extensive gun control measures.
Much of the confusion stems from the introductory clause, which reads, “A well regulated militia being necessary to the security of the free state,” and has been taken as opening the anti-gun door.
From time to time, someone decides to weigh in on how we, in our time, are unique in the fact that we’ve completely misread what the Second Amendment says.
This time, it comes from the Johns Hopkins News Letter:
Through the textualist lens, which is centered around the plain word of the law and not its historical trifles, the Second Amendment guarantees states the right to define their own standards of a proper state militia. But this guarantee does not extend far enough to imply that every able-bodied man is part of it. There is little reason why — if the militia consists of every able-bodied man — they would specify “well-regulated” rather than “bodily-able,” or even omit qualifications in its entirety. After all, few can claim realistically that a loose band of armed and fit men without any code, rules of engagement or training is “well-regulated” in any sense of the term, even Washington himself.
I’m going to give author Chris Zhang credit for writing one of the better thought-out pieces challenging the Supreme Court’s interpretation of the Second Amendment, but that doesn’t mean he’s less wrong than those who came before him.
The fact that he’s publishing it in a newsletter from the same institution that hosts the Bloomberg School of Public Health wasn’t missed, either, for the record. I’m sure the fact that he’s parroting a favorite talking point of the side a major donor for the school has taken is purely a coincidence.
Now, as for the argument itself, this paragraph is basically making the case that the Second Amendment isn’t really an individual right, and his claim is based on the whole “well-regulated” thing.
However, let’s look at this for a moment.
He says the Second Amendment guarantees states the right to define their own standards, yet where is the evidence for that? The Second Amendment refers not to states and their rights, but “the right of the people” specifically.
I’ve gone through the entire Constitution numerous times. Every single instance where “the people” are referred to in regard to a right, it’s clearly an individual right. Zhang would have us believe, though, that this time, it’s really about the states.
After all, they said “well-regulated” rather than something that included all able-bodied men, such as “bodily-able,” which is probably the dumbest argument he could have included. First, was that even a phrase in use at the time?
Second, one cannot look at an introductory clause purely in isolation, as Zhang and so many who have come before him have done. Nothing in that clause negates that “the right of the people to keep and bear arms shall not be infringed.”
At the time, “well-regulated” meant a properly functioning militia. That’s it. The inclusion of the phrase did not imply anything beyond that, though Zhang is bound and determined to try and make that case.
Zhang also suggested that the idea that the Second Amendment is an individual right is rather modern in many ways.
In 2022, Second Amendment attorney Kostas Moros collaborated with writer Stephen Gutowski to create an article that laid out much of the argument debunking the entire claim that no one, until recently, believed gun rights were for individuals, rather than states. The idea that people can and should have access to arms, that it was their right to be able to access weapons, dates from the time of the Second Amendment itself.
No amount of verbal contortions is going to change that, and Johns Hopkins will never undo the simple fact that the idea that “the right of the people” has never and will never mean “the states.”
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