The original plain meaning of the right to bear arms.

• Author: Junger, Peter D.

The Second Amendment is the fly in the ointment if not the trout in the milk--of constitutional interpretation. The accepted stratagem of constitutional scholars is to pretend that it is not there--or, at most, to pass it off in a footnote. But even in a footnote the constitutional protection of the right "to keep and bear arms" is an embarrassment; consider Tribe's claim in a footnote--the footnote that contains the only reference to the Second Amendment in his brilliant treatise--that

[t]he congressional debates ... indicate that the sole concern of the second amendment's framers was to prevent such federal interferences with the state militia as would permit the establishment of a standing national army and the consequent destruction of local autonomy. (1) Totally ignoring it is equally embarrassing for, no matter how much we wish it would go away, it is there. It is almost enough to make one wish that the Constitution had remained unwritten.

Only the Humpty Dumpty--sic volo, sic jubeo--school of constitutional analysis appears capable of dealing with it. (2) The members of the plain meaning school, which is not to be confused with the "ordinary language" school of philosophy, are likely to be embarrassed by its words: "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." (3) Either this language does not have a plain meaning or it plainly forbids laws, at least federal laws, (4) outlawing the possession of arms, at least those arms, such as swords, rifles, and pistols, that existed when the Constitution was adopted. (5) The conclusion, however, that the Second Amendment forbids gun control laws is politically unacceptable to either the "conservatives" who believe that the government can constitutionally do whatever it wants (except violate the "Takings Clause" of the Fifth Amendment), or the "liberals" who believe in the First Amendment, equal opportunity, and gun control laws. The plain meaning of the Second Amendment--if there is one--is palatable only to libertarians who find the plain meaning of other parts of the Constitution, such as the Sixteenth Amendment, anathema.

Those who advocate interpreting the Constitution in accordance with the original intent of the framers are no better off. The original intent is ambiguous: either the framers intended to outlaw standing armies as Tribe suggests, (6) or they intended to outlaw gun control laws, neither conclusion being palatable to the liberal-conservative consensus, though true libertarians--i.e., anarchists--might embrace both horns of the dilemma. The only other conclusion that can be reached is the Second Amendment was intended to be a nullity, which reveals the framers in a rather farcical light.

Other schools of constitutional interpretation may have less difficulty with...