Although many will argue that it was the electoral coercion of the NRA, several senators who voted "no" cited the Second Amendment as the reason why. This is a common tactic—pro-gun advocates throwing constitutional rights into every debate about guns—even when it isn't terribly relevant. That's a problem, in my view; we should all try to adhere to the Constitution, but it's hard to do that when the actual meaning of the Bill of Rights is diluted. Second Amendment advocates actually hurt their own cause by citing it too often. To determine if an assault-weapons ban or universal background checks really are a threat to our Second Amendment rights, we must first understand the content and language of the Second Amendment.
For public information, here is what the Second Amendment actually says:
"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."Intelligent people can have intelligent disagreements about how to interpret this sentence, especially since it is a particularly confusing piece of the law of the land. There are too many nouns and not enough verbs, for one thing; for another, what's up with all the commas?
Well, first off, don't worry so much about all the commas. Commas were used a lot more freely—and haphazardly—in colonial times than they are today. Different copies of the Constitution, transcribed by different printers, have different numbers of commas. Back then, it was simply a punctuation mark inserted to give speakers (remember, the Declaration of Independence and Constitution were read from public places across the colonies) cues on where to pause and take a breath. Apparently it was even the British legal tradition at the time to disregard commas when interpreting statues—they were considered annotations more than parts of the text.
Now that we have codified grammatical rules to an extent that was unimaginable—even impossible—in the 18th century, we have also abandoned the once-common practice of inserting commas between subjects and their predicates. That accounts for the two Second Amendment commas that look weirdest to the modern eye: the first ("Militia, being") and the third ("Arms, shall"). Take those out, and you're left with two clear clauses regardless of what you do with the second, middle comma.
The second half ("the right of the people to keep and bear Arms shall not be infringed") is the money phrase and the independent clause of the amendment—in other words, it's the main idea. This seems great for gun advocates—except it's not the only idea. We also have to figure out what to do with the dependent, participial clause that begins the sentence: "A well regulated militia being necessary to the security of a free State."
Those who have studied Latin will recognize this immediately as an ablative absolute clause. Under this Latin device, an entire string of words before the main idea of a sentence would be put in the ablative case, which is used to express means or accompaniment (i.e., it's used after the word "with"). Here's an example:
Omnibus paratis, familia discessit ad urbem.It's a construction we still use in English sometimes, as the non-awkwardness of the translation suggests. However, in Latin, the ablative absolute is used for a special reason: to express purpose. Therefore, a less literal, but more colloquial, translation would be, "Since everything was ready, the family departed for the city."
With everything prepared, the family departed for the city.
If you were to translate the Second Amendment into Latin and then back into English, the best translation would read something like, "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." That establishes a much clearer causal link for the right to bear arms with the necessity of a "well-regulated militia." This gives rise to the liberal interpretation of the amendment.
However, since the Bill of Rights is, in fact, not written in Latin, the true meaning is open for debate. Progressive legal scholars like Jeffrey Toobin observe that, for much of American history, the right to bear arms was only understood in the context of protecting state militias. Only in the late 1970s, Toobin argues, when the Republican Party was making its hard turn to the right, did the NRA campaign successfully to alter the national perception of the amendment to cover individual citizens' gun rights. To Toobin, that makes the individual-rights interpretation wrong. However, it can also be convincingly argued that the organized-militia-only interpretation flew in the face of the actual, original intent by the Framers. Colonial-era writing samples suggest that the phrase "bear arms" was a deliberate choice and specifically refers, then as now, to individual possession of weapons, not the military use of them.
What is clear is that the relationship between the first clause and the second clause is the key to understanding the amendment's meaning: does the dependent clause qualify or restrict the independent one or not? On one hand, the first half could be a specific and exclusive raison d'être for the entire main clause, in the full spirit of the ablative absolute, as if the Bill of Rights had been written in Latin itself. Or the first clause could just be irrelevant fluff, a throwaway statement that may be tangentially true but does not affect the amendment's main point; it might as well not even be there. The middle ground is that the first clause is neither meaningless nor decisive; it provides a context, and perhaps an explanation, for the main thrust of the amendment, but it doesn't take anything away from the core meaning.
So are background checks unconstitutional? You can argue that they do take away certain citizens' rights to bear arms, or that they obstruct law-abiding citizens' rights even if they do get their guns in the end. But background checks also fit perfectly with the idea of a "well-regulated" gun-toting population, should you accept the liberal or the moderate interpretation of the Second Amendment. Anything short of denying the relevance of the first clause, and you acknowledge that the Constitution believes regulation of guns is important. (Ironically, conservatives who deny that are thus also denying any similarities between the Second Amendment's structure and the ablative absolute of Latin—many conservatives' favorite language.) However, many of the senators who claimed that they believed background checks violated the Second Amendment were moderates, even Democrats—not conservative ideologues.
If you believe in the hard-right interpretation of the Second Amendment, that's fine. But I don't think these swing-vote senators on the background-checks bill do. Given their overall philosophies and temperaments, a much more nuanced view of Second Amendment law seems likely. Maybe they too, like the rest of us, need a grammatical lesson and a refresher on what the Constitution actually says.