By Dr. Edwin Vieira, Jr., Ph.D., J.D.
June 14, 2016
As regular readers of my commentaries know, from time to time I have written about the National Rifle Association’s curious misreading of the Second Amendment—to wit, that the Amendment’s first thirteen words (“[a] well regulated Militia, being necessary to the security of a free State”) have no significance with respect to the interpretation and application of the Amendment’s last fourteen words (“the right of the people to keep and bear Arms, shall not be infringed”). According to the NRA, the Second Amendment secures “the individual right to keep and bear arms”, to which “[a] well regulated Militia” is irrelevant.
I must describe the NRA’s fixation as a most curious misreading of the Second Amendment because, if “the individual right to keep and bear arms” is irrelevant to “[a] well regulated Militia”, then by dint of the NRA’s own linguistic logic “the individual right to keep and bear arms” must be equally irrelevant to “the security of a free State” to which the Amendment declares that such a Militia is “necessary”. If so, then the NRA’s reading of the Amendment is at odds with its contention that “the individual right to keep and bear arms” guarantees Americans the wherewithal to preserve “the Blessings of Liberty” promised by the Constitution in its Preamble. For, if “the individual right to keep and bear arms” is as irrelevant to “the security of a free State” as it supposedly is to “[a] well regulated Militia”, it passes understanding that it could guarantee any aspect of “a free State”, including especially the “Liberty” of that State’s citizens.
This apparent conundrum is, of course, not the product of the Constitution. For, according to the most basic rules of constitutional interpretation, the NRA’s construction of the Second Amendment is impossible. In general, “[i]t cannot be presumed, that any clause in the constitution is intended to be without effect”. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). And “[i]n expounding the Constitution * * * , every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added”. Holmes v. Jennison, 39 U.S. (14 Peters) 550, 570-571 (1840). Moreover, with respect in particular to the clause “[a] well regulated Militia, being necessary to the security of a free State”, “[i]t cannot be supposed that the framers of the Constitution did not use this expression with deliberation or failed to appreciate its plain significance”. Wright v. United States, 302 U.S. 583, 587-588 (1938). See also, e.g., Myers v. United States, 272 U.S. 52, 151-152 (1926); Knowlton v. Moore, 178 U.S. 41, 87 (1900); Blake v. McClung, 172 U.S. 239, 260-261 (1898); Reid v. Covert, 354 U.S. 1, 44 (1957) (opinion of Frankfurter, J.).
Continue Reading: Edwin Vieira Jr. — A Serious Question For The NRA, Part 1
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