‘A Well-Regulated Militia’: the First Clause of the 2nd Amendment in Reframing the Debate Around Gun Control

340 mass shootings. 40000 killed. In one year.[1]

Given the speed of New Zealand’s assault-weapon ban in response to the devastating Christchurch mosque shootings on March 15th of this year, it’s certainly worth having another discussion about the state of gun control regulations by the US federal government and their lack of a response.

First and foremost, I’d like to lay the groundwork that there is merit behind the arguments for both sides or else we as a nation would not be stuck at this deadly impasse for what seems like an eternity. But in this discussion (and I mean discussion in the truest sense of the word – I’m always eager for dialogue with readers), I’d like to shift the focus from our current public liberal versus conservative debate and introduce an important clause to the public dialogue that has seemingly been missing: the concept of a “well-regulated militia” included in the Constitution.

Included as the first words of the second amendment, it’s clear that the Founding Fathers had big albeit cryptic plans for this phrase. The exact phrasing of the amendment is 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.”[2]

While this phrase has been seemingly absent from the public debate, amongst scholars this phrase has been hotly contested since essentially the ratification of the Constitution. And this makes some sense, considering the (perhaps deliberately) vague and confusing nature of the phrasing by the Founding Fathers. The last definitive court ruling on this specific phrase was the landmark United States v. Miller case of 1939, where the courts concluded that the sawed-off shotgun in question did not have a "reasonable relationship to the preservation or efficiency of a well-regulated militia”.[3] This situation should sound like déjà vu to our current state of affairs, given the completely legal use of bump stocks in the Las Vegas massacre and the other innumerable weapons modifications made by private gun owners to increase lethality.

Miller stood as the definitive precedent on gun control for nearly seventy years until the watershed District of Columbia v. Heller ruling came in 2008. The Supreme Court stated in a narrow 5-4 majority that the local government’s complete ban of handguns was unconstitutional by the second amendment given the second clause stating, “the right of the people to keep and bear Arms, shall not be infringed”. Yet this ruling upholds the tight upper bounds on gun ownership set by Miller in 1939, claiming that similar weapons to the shotgun which cannot be used for law-abiding purposes remain unconstitutional.[4]

And now we have two key-phrases of importance: ‘well-regulated’ and ‘law-abiding’. I’d say it’s pretty clear that a well-regulated militia or any of its members would not commit such horrific acts of terror and violence like the Parkland and Columbine school shootings or massacres like the one that happened in Las Vegas two years ago. The way the actual US military works is that we don’t just put weapons into the hands of whoever wants them in combat. Our military service members are well-trained, disciplined, and selected to handle firearms. And yet the status quo in the United States is rife with states that require no training or background checks, which appears to be quite antithetical towards preserving “a well-regulated militia” in America. All this is done in the name of preserving the final clause of the second amendment while ignoring its first, meant together as a check and balance in gun legislation.

If I were tasked with creating an ideal society, I would not allow guns – I can see no need for weapons in a well-run and civil society. And yet America is not a perfect country, so I can empathize with the desires of my fellow Americans who wish to use firearms as protection of one’s family and community. What’s baffling to me however, is why we as nation cannot converge somewhere between these two Supreme Court rulings that represent the upper and lower bounds of constitutional legislation and enact meaningful gun control laws to clarify the undecided gray area on such a critically important subject. I think we can all agree on both sides of the political isle that the status quo is broken. It seems like every other week we’re hearing about another school shooting or massacre, and the numbers certainly support this. America had almost one mass shooting to mark every day of the calendar year. We have the highest gun suicide rate in the entire world.[5] In a world of nuances, more often than not the answers are found in the gray area. But instead the status quo feels like an unyielding and unempathetic back and forth between extremes, hurting the opportunity for real and necessary progress that needs to be made. Together, let’s shift the public spheres of discussion and reframe the debate around gun control in America towards understanding and progress.

[1] Mervosh, Sarah. "Nearly 40,000 People Died From Guns in U.S. Last Year, Highest in 50 Years." December 18, 2018.

[2] Strasser, Ryan. "Second Amendment." Legal Information Institute. June 05, 2017.

[3] Ibid.

[4] Ibid.

[5] "13 Statistics That Tell the Story of Gun Violence in 2018." The Trace. December 26, 2018.