Bearing arms and verbal harms

OPINION:

When the Supreme Court entertains arguments on the constitutionality of gun regulation in the District of Columbia in mid-March, it would be refreshing to hear some consideration of what the Second Amendment actually says.

The words are familiar — “A well-regulated militia being necessary to the safety of a free state, the right of the people to keep and bear arms shall not be infringed.” Perhaps so familiar we have stopped bothering to parse them accurately.

Nonetheless, the ancient rules of textual construction long antedate the Second Amendment and were doubtless familiar to James Madison, its principal draftsmen, and his colleagues in the First Congress. And the paramount rule is that when the meaning of a text is clear on its face, the polemical accretions that tend to accumulate around plain words may be disregarded.

In the Second Amendment — as in the two articles of the Bill of Rights that bracket it — the word “people” is used in a collective sense, establishing a community right. Disputes over militias had a long history in Anglo-American law and lore; and Madison and his confreres obviously meant to be sure that the constitutional status of militias was well-understood. They took pains, accordingly, to assure that “the right to keep and bear arms” would be understood as a right belonging to the community. Otherwise, they would have phrased the amendment very differently.

What is the evidence for their careful distinction between “people” (collective) and “person” or “persons” (individual)? It is abundant, beginning with the first words of the Constitution. “We the people of the United States” (preamble); “the right of the people peaceably to assemble” (First Amendment); “The House of Representatives shall be [chosen] by the people of the United States” (Article 1, Section 2). And elsewhere. Without exception, the noun “people” is clearly collective.

It is equally clear that when the Framers had individual rights or powers in mind they said so explicitly: “No person shall be a senator” (Article 1, Section 3); presidential electors were to “vote by ballot for two persons” (Article 1, Section 3); “No person” could be elected president who did not meet the criteria of eligibility (Article 2, Section 5); “no person” could be convicted of treason except by a prescribed process (Article 3, Section 3). In at least one instance, the Fourth Amendment, offering protection against unreasonable searches and seizures, the two terms are instructively juxtaposed: “the right of the people to be secure in their persons.”

Obviously, the Framers of the Constitution took care to use words precisely and would be astonished to learn that they labored in vain. But then we live in a so-called “postmodern” age in which some smart people (perhaps “educated beyond their intelligence,” as an old editor of mine used to say) claim that verbal meaning, however apparently clear, is always radically uncertain. It may be an amusing academic game, but it is perilous in matters of law and constitutionality, where certainty is an indispensable value.

Is this to argue that the Second Amendment, accurately construed by the known rules of interpretation, disposes of all issues surrounding the possession, care and use of guns? That is at least debatable. The Constitution and the Bill of Rights that followed it by three years were written in a thinly settled society, largely rural, where neither firearms — nor for that matter, horses and buggies — posed any substantial social menace. Game, moreover, was an essential part of many diets and it would defy common sense to assume the Framers meant to inhibit hunting.

Yet that very history exposes the fallacy of that crowd-pleasing scene staged by the late Charlton Heston, when he flourished his antique musket and cried it would be wrested only from his cold, lifeless hands. Heston”s dramatic star turn sheds no light on the Second Amendment. He lived behind locked gates in a big house in Hollywood. And his long antique firearm, no AK-47 or sawed-off shotgun, was no danger to anyone.

In the conditions of modern urban life, the promiscuous possession and use of deadly weapons cost thousands of lives every year. This laxity makes neither more nor less sense than would the relaxation of our well-established regulatory regime for motor vehicles. Most of us would scorn the suggestion that we could do without stoplights, auto insurance and rules of the road; and yet that is the bizarre contention of the defenders of an absolute individual right to “keep and bear arms” — and even carry concealed weapons into crowded restaurants, theaters and stores.

Properly understood, the Second Amendment suggests two things: That right is a community right, guaranteeing “well-regulated militias.” And the private and individual possession and use of firearms is an issue of the appropriate exercise of federal, state and local police powers. If that is what the text means, it will be interesting to see what the Supreme Court’s “originalists” have to say about it.

Edwin M. Yoder Jr. was associate editor and editorial pages editor of the Washington Star and later a columnist with the Washington Post Writers Group. His novel “Lions at Lamb House,” about Sigmund Freud and Henry James, was published in September.