Legal Hermeneutics And Its Application To Second Amendment Analysis: Original Intent and The Right To Keep And Bear Arms
The Second Amendment to the United States Constitution provides that "[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." Upon reading the Second Amendment, numerous questions arise as to who, in fact, possesses the right to keep and bear arms, whether such right exists solely within the province of "a well-regulated Militia" and/or in the hands of those not so situated.
The manner in which 'original intent' is extrapolated from the text of the Second Amendment (as is true of much of the Constitution as a whole) hinges upon either strict constructionist or interpretivist viewpoints. A literal reading of the text focuses on syntax. In such a case, the commas after the introductory and subordinate clauses are instructive, for they condition the right to keep and bear arms upon the need for a well regulated militia. Thus, literalists may read the Second Amendment as follows: "Since a well regulated Militia is necessary to the security of a free state (placing emphasis on the commas/pauses), [which is synonymous with the people's right to bear arms, such right shall not be infringed]." Such a modern-day reading juxtaposes the armed forces and civilians alike in a collective right to use deadly force in furtherance of national safety, which these readers extend to personal security (e.g., the use of deadly force in self-defense or in defense of family and others). Indeed, upon the Second Amendment's promulgation, militias were composed of civilians (i.e., the people), who joined forces to ensure the security of "the State." Today, however, people have a choice of whether or not to join the armed forces, and such decision separates civilians from the military in a deeply significant way: some train for combat, while others have no such inclination.
Interpretivists read the Second Amendment in the context of present-day circumstances. Breaking away from the letter and focusing on spirit, interpretivists seek to establish a modern application of the Framers' intent, by reading the Second Amendment, as follows: "A well regulated Militia being necessary to the security of a free state, the right of the people [entrusted with law enforcement] to keep and bear arms shall not be infringed." In other words, Second Amendment rights speak solely to a "well regulated Militia," which is the holder of Second Amendment rights. Such a reading adheres to the notion that arms in the hands of the masses (i.e., ordinary people untrained in the skill of combat or defense) breed chaos, criminality, and disorder. The interpretivist stance screens out perceived potential abusers of the right to keep and bear arms by construing 'original intent' to confer such right only to a well trained army.
Curiously, the foregoing attempts to resurrect the Framers' intent offer divergent opinions and are, therefore, each interpretive. Even strict constructionists, those wedded to the letter itself, impose thereon the ideology that the right extends to non-militia. On the other hand, the interpretivist philosophy confines Second Amendment rights to law enforcement and defense. Query: have we failed to ascertain 'original intent?' At first glance, the hermeneutical debate seems to throw us into a mire of confusion; for once the human eye discerns text, the word erodes. Humans cannot ever categorically declare a "true" statement about what the Framers intended, unless we were to resurrect the Venerable Mr. Madison and his comrades themselves!
The true magic of 'original intent' is its inherent ambiguity, which triggers an admixture of viewpoints and freedom of thought. Intent, then, is left behind in time's archives, buried with a well regulated Militia and the civilians who comprised it; and, yet, intent lives and travels through countless years, as we continue to hearken to voices of infinite wisdom, those who knew not to say too much or too little, those who echo in the minds of lawmakers and thinkers of our current day who, centering upon syntax, context or both, carry out and breathe life into the letter and the spirit of the Constitution, one of the greatest documents ever composed.