What did the Second Amendment say?
About this video
This video reads the Second Amendment and explains its grammar: a prefatory clause about a well-regulated militia and an operative clause protecting the right of the people to keep and bear arms. It notes that the Supreme Court did not definitively interpret the amendment for over 200 years. Lower courts split into two camps: a group right tied to militia service, and an individual right like the rest of the Bill of Rights.
You'll be able to
- identify the prefatory and operative clauses of the Second Amendment.
- explain the two main approaches lower courts took to interpreting it.
- explain why the lack of a Supreme Court ruling for 200 years was unusual.
Key words
- prefatory clause
- The opening part of the Second Amendment: 'A well-regulated Militia, being necessary to the security of a free State'.
- operative clause
- The part that does the work: 'the right of the people to keep and bear Arms shall not be infringed'.
- militia
- A group of ordinary citizens organised to fight when needed, rather than a professional army.
- infringed
- Limited, broken or violated.
- individual right
- A right each person holds personally and can assert against the government.
Transcript
[MUSIC] The Second Amendment reads 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. The first thing that you would notice grammatically about the Second Amendment is that, unlike many other provisions of the Constitution, it has what's called a prefatory clause and an operative clause. The prefatory clause is the first one.
The one that says a well-regulated Militia, being necessary to the security of a free State. Then the so-called operative clause is the second one. The one that says the right of the people to keep and bear Arms shall not be infringed. Then the question is, essentially, how do those two clauses interact with one another to produce a meaning? In other words, an enforceable understanding of what that amendment permits and what it forbids.
The Second Amendment is quite unusual in that it went for over 200 years without being definitively interpreted by the U.S. Supreme Court, notwithstanding the fact that there are hundreds or maybe even thousands of gun laws in the country which made it rather strange that we never got a definitive interpretation from the Supreme Court for over 200 years. What emerged among the lower courts that considered the meaning of the Second Amendment was basically two different approaches.
One put a great deal of emphasis on that so-called prefatory clause and emphasized the concept of Militia and said, "Look, whatever this is, it's not an individual right to do something. It's a right to do something as a group, to perhaps own or carry a certain weapon when participating in Militia service with a group of people." The other camp, the other approach to interpreting the Second Amendment was to interpret like essentially the other amendments in the Bill of Rights, which is that it is a personal right that individuals possess and that they may assert against the government so that they can do a particular thing regardless of whether they're doing it by themselves or with a group. [MUSIC]
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