Ranking the Bill of Rights, Number 10: The Second Amendment

Luckily, the Bill of Rights is more limited than history. So, rather than ranking 173 historical happenings, I can get away with ranking a much more manageable ten amendments, which constitute the United States’ Bill of Rights.

Coming in last place is the Second Amendment which reads: “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.”

Seriously, Framers? That’s the best you can give us? The Second Amendment is—by far—the most poorly worded and punctuated amendment. The opening noun clause “a well regulated Militia” is neither the subject nor the object of the sentence. The opening phrase isn’t even necessarily part of the substance of the amendment, but rather a justification for the amendment. But, if the justification no longer holds—if a well regulated militia is not so necessary for a free state—does the declarative clause lose its meaning? Antonin Scalia maintained that it did not in the Heller case, claiming that the first clause is a prefatory clause, a non-exclusive reason for having the right to keep and bear arms. Moreover, there is significant ambiguity as to what constitutes “Arms” and at what point a right (which is arguably collective despite Scalia’s ruling) is infringed. And, what the heck is that comma after “Arms” doing there?

Another reason for the Second Amendment’s last place ranking is that it’s the most dubious from a policy perspective. When comparing the right to keep and bear arms to free speech or a guarantee of trial by jury, it simply pales in comparison. There is significant empirical debate on the efficacy of gun control and significant moral debate on the importance of the right to keep and bear arms in a constitutional democracy.

A last place finisher, being necessary for a ranking of the Bill of Rights, the Second Amendment, shall finish last.

3 responses to this post.

  1. Posted by Wey on July 22, 2009 at 9:16 PM

    seriously? even behind the third amendment?

    Reply

  2. […] been nearly eight months since we started our journey by placing the Second Amendment in its rightful place: last. The problems that plagued the Second Amendment—lack of clarity and dubious public policy […]

    Reply

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