English Professor Hopes To Revive Debate Over Militia Clause Of 2A

The U.S. Supreme Court declared twelve years ago that the Second Amendment protects an individual right to keep and bear arms, but some folks just can’t let go of the idea that the language of the amendment does nothing more than protect the collective right of the people to bear arms in a state militia.

Jim Vanden Bosch is a retired English professor from Michigan, and he’s devoted hours to the arcane subject of “absolute phrases,” particularly the grammar used in those phrases in the 18th and 19th century. He claims that the language of the Second Amendment, as it would have been understood at the time it was written, doesn’t apply to an individual right to own and carry a gun.

“I’m just surprised no one checked Scalia on his grammatical comments in the Heller opinion,” said Vanden Bosch. “There were grammarians involved in the deliberations, but no one was an expert on the absolute phrase.”

Vanden Bosch is that expert. And what he found in his study, using written examples from the era in both Britain and America—including the famous Federalist Papers—is that an absolute phrase using “being” as its key word was in common usage.

“At the time of the writing of the Second Amendment, this type of grammar was typical,” he said. “Understanding this fact should give today’s legislators, courts and voters more courage to insist that interpretations of the amendment should not be wide open.”

Taking the absolute phrase into proper account, the amendment ensures that states could maintain armed militias. It did not comment on an individual’s right to keep any kind of gun in any place at any time.

I’m not an English professor or an expert in absolute phrases, but I have studied the Second Amendment for over fifteen years, and Vanden Bosch’s interpretation of the language used in the amendment leaves much to be desired. For one thing, the good professor seems so focused on the prefatory clause of the Second Amendment that he pays no mind to the part that states “the right of the People to keep and bear arms shall not be infringed.”

The amendment must be read in its entirety, not just in part, and taken as a whole the Amendment suggests that the right of the people to keep and bear arms shall not be infringed in part because a well regulated militia is necessary to the security of a free state. If the Second Amendment were meant to only deal with the right of states to establish a militia, why include the People in the amendment at all?

Take a look at Rhode Island’s state constitutional amendment protecting the freedom of the press, which states:

The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.

While the prefatory clause is slightly different than the language of the Second Amendment, the meaning is still clear. Because a free press is essential to the security of freedom, people have the right to publish their opinions on any subject. Similarly, because a militia (defined at the time as the body of the people capable of bearing arms) is necessary for a free state, the right of those people to keep and bear arms shall not be infringed.

Of course, we no longer have organized militias, so does that mean that the Second Amendment should be read as an historical anachronism? Way back in 1998, years before the Heller decision was handed down, UCLA law professor Eugene Volokh answered that question with a resounding “no.” In “The Commonplace Second Amendment,” Volokh explained why the idea of the Bill of Rights only protecting freedoms on a temporary basis is “unsound.”

This reading seems at odds with the text:  The Amendment doesn’t say “so long as a militia is necessary”; it says “being necessary.”  Such a locution usually means the speaker is giving a justification for his command, not limiting its duration.If anything, it might require the courts to operate on the assumption that a well-regulated militia is necessary to the security of a free state, since that’s what the justification clause asserts.

But the unsoundness of the “temporary right” reading becomes even starker when one considers the other state constitutional provisions.  Consider, for instance, the New Hampshire Venue Article:

In criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

Today few believe that the trial of the facts in the vicinity where they happen is essential to life, liberty, and property.  Perhaps this was so when most jurors were expected to rely on their personal knowledge about the facts or about the characters of the defendants and the witnesses, when travel was very difficult, or when cultural divides were primarily geographical. Today, though, it’s much more common to hear insistence on a trial being moved outside the vicinity where the crime was committed, on the theory that jurors in the area of the crime would be unduly inflamed against the defendant. Even those who support local trials would probably only say that local trials are helpful, not “essential”; and even those who stress the importance of trial by jurors who come from a demographically similar place wouldn’t care much about trial in the same county.

We wouldn’t, however, interpret the “is so essential” language in the Venue Article as meaning “so long as it is believed by judges to be essential.”  Bills of Rights are born of mistrust of government:  The government is barred from prosecuting cases in another county because of the fear that some future government may not be attentive enough to “the security of the life, liberty, and estate of the citizen.”  The provision’s enactors doubtless contemplated that there’d be disagreement about the value of local trials. It seems most likely that they mentioned the value of local trials in the constitution to show their commitment to this position, not to leave the judiciary — itself a branch of the government — carte blanche to conclude otherwise, and thus eliminate the operative clause’s check on government power. The trial-in-the-county provision must remain in effect whether or not a judge thinks it still serves the purpose; the provision was enacted by the people, and it’s up to the people, not judges, to decide whether it’s obsolete.

Even if organized militias as they existed in 1791 aren’t around in 2020, that doesn’t mean that the right that protected their existence disappeared when the militias went away or became the National Guard. As Volokh notes, the people themselves must decide when their rights are obsolete. Neither judges nor English professors have the authority to decide otherwise.