• Harvard College Law Review Facebook

© 2019 by Harvard College Law Review.

All rights reserved.

A Well-Regulated Militia’: the First Clause of the 2nd Amendment in Reframing the Debate Around Gun Control

by Michael Wu | Spring 2019

Much of the public discourse surrounding the Second Amendment centers around its final clause, which states that “the right of the people to keep and bear Arms, shall not be infringed.” Yet much of this dialogue ignores the equally important first clause of the same amendment, which discusses the necessity of a ‘well-regulated militia’. This article highlights the inadequacies of much of the status quo federal-level gun control legislation in addressing the ‘well-regulated’ first clause of the 2nd Amendment and argues for a shift in public discourse to reframe the debate around gun control in America toward understanding and progress.

5.  "13 Statistics That Tell the Story of Gun Violence in 2018." The Trace. December 26, 2018.

340 mass shootings. 40000 killed. In one year.[1]

Given the speed with which New Zealand authorized an assault weapons ban in response to the devastating Christchurch mosque shootings on March 15th of this year, it is certainly worth having another discussion about the federal government’s inaction on gun control measures in the United States.

First and foremost, there is merit behind both sides’ arguments. Were there not, we as a nation would not be stuck indefinitely at such an impasse. But in this discussion (and I mean discussion in the truest sense of the word – I am always eager for dialogue with readers), I would like to shift the focus from our current, public “liberal versus conservative” debate and reintroduce an important clause to the public dialogue that has seemingly been missing: the concept of a “well-regulated militia” included in the Constitution.

Included as the first words of the second amendment, it is clear that the Founding Fathers had big albeit cryptic plans for this phrase. The exact phrasing 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.”[2]

While this phrase has not featured prominently in the public debate, among scholars this phrase has been hotly contested since the ratification of the Constitution. This makes some sense, considering the (perhaps deliberately) vague and confusing nature of the phrasing penned by the Founding Fathers. The last definitive court ruling on this specific phrase was the landmark United States v. Miller case of 1939, in which the Supreme Court concluded that the possession of a sawed-off shotgun does not have a "reasonable relationship to the preservation or efficiency of a well-regulated militia”.[3] This situation should sound like déjà vu to our current state of affairs, given the completely legal use of bump stocks in the Las Vegas massacre and the other, innumerable weapons modifications made by private gun owners to increase lethality.

Miller stood as the definitive precedent on gun control for nearly seventy years until the watershed District of Columbia v. Heller ruling came in 2008. The Supreme Court stated in a narrow 5-4 majority that the local government’s complete ban of handguns was unconstitutional by the Second Amendment given the second clause stating, “. . . the right of the people to keep and bear Arms, shall not be infringed”. Yet this ruling upholds the tight upper bounds on gun ownership set by Miller in 1939, claiming that similar weapons to the shotgun which cannot be used for law-abiding purposes remain unconstitutional.[4]

Moreover, there are two key-phrases of importance: ‘well-regulated’ and ‘law-abiding’. It is clear that a well-regulated militia or any of its members would not commit such horrific acts of terror and violence like the Parkland and Columbine school shootings or massacres like the one that happened in Las Vegas two years ago. Our military service members are well-trained, disciplined, and selected to handle firearms. And yet the status quo in the United States is rife with states that require no training or background checks, which appears to be quite antithetical towards preserving “a well-regulated militia” in America. All this is done in the name of preserving the final clause of the second amendment while ignoring its first, meant together as a check and balance in gun legislation.

If I were tasked with creating an ideal society, I would not allow guns – I can see no need for weapons in a well-run and civil society. And yet America is not a perfect country, so I can empathize with the desires of my fellow Americans who wish to use firearms as protection of one’s family and community. What baffles me, however, is why we as nation cannot agree to settle somewhere between these two Supreme Court rulings that represent the upper and lower bounds of constitutional legislation and enact meaningful gun control laws to clarify the laws surrounding such a critically important subject. I think we can all agree on both sides of the political aisle that the status quo is broken. It seems that every other week we hear about another school shooting or massacre, and the numbers certainly support this. America had almost one mass shooting to mark every day of the calendar year. We have the highest gun suicide rate in the entire world.[5] In a world of nuances, more often than not the answers are found in the gray area. But instead the status quo feels like an unyielding and unempathetic back and forth between extremes, hurting the opportunity for real and necessary progress that needs to be made. Together, let us shift the public spheres of discussion and reframe the debate around gun control in America towards understanding and progress.

REFERENCES

 

[1] Mervosh, Sarah. "Nearly 40,000 People Died From Guns in U.S. Last Year, Highest in 50 Years." December 18, 2018.

[2] Strasser, Ryan. "Second Amendment." Legal Information Institute. June 05, 2017.

[3] Ibid.

[4] Ibid.

[5] "13 Statistics That Tell the Story of Gun Violence in 2018." The Trace. December 26, 2018.

1.  Mervosh, Sarah. "Nearly 40,000 People Died From Guns in U.S. Last Year, Highest in 50 Years." December 18, 2018.

2.  Strasser, Ryan. "Second Amendment." Legal Information Institute. June 05, 2017.

3.  Ibid.

4.  Ibid.