« Kurt Eggert: The Nondelegation Doctrine, Originalism, and Government by Judiciary
Michael Ramsey
| Main | Ryan Williams: Lower Court Originalism
Michael Ramsey »


The Word “People” is Broader than the Word “Militia” in the Second Amendment, and the Prefatory Clause Strongly Suggests a Right to Carry Outside the Home
Andrew Hyman

The Second Amendment 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.”  This language will soon be under the microscope again, now that SCOTUS has agreed to hear a gun rights case from New York.  This case mainly involves whether the Second Amendment protects a right to carry a gun outside the home, and it could provide an opportunity to revisit the question whether the Second Amendment is limited and/or expanded by its prefatory clause (the prefatory clause precedes the operative clause).

Some scholars have suggested that the word “people” in the operative clause is no broader than the word “militia” in the prefatory clause.  For example, earlier this month Adam Gopnik wrote in the New Yorker:

Justice John Paul Stevens, in a dissent that rightly became and remains famous, disassembled Scalia’s opinion [in D.C. v. Heller].  The only way to imagine that the “people” are anyone other than the members of those militias, he wrote, is by citing peripheral and secondary and much later linguistic references, in defiance of the plain meaning of the words at the time.

To me, that’s incorrect first and foremost because any dictionary of that era shows the two words (i.e. people and militia) have different meanings, and secondly because the framers could very easily have used the word “militia” instead of the word “people” in the operative clause, if they had wanted to.

The framers and ratifiers understood that the militia would not always include all categories of American citizens.  Indeed, the original unamended Constitution distinguished the militia from the Army and Navy: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States....”  Accordingly, the Second Militia Act of 1792 exempted from the militia all U.S. Army and Navy officers, and many other categories of people too.  Obviously, they understood that the “militia” is a subset of “the people.”

When a House Committee suggested replacing the word “militia” in the draft Second Amendment with the words “militia, composed of the body of the people,” the House opted to delete everything after the comma.  Maybe that’s mainly because they wanted to be concise, but it would have been just as concise for them to have replaced the word “people” in the Second Amendment with the word “militia” if that was what they were really aiming at.

Certainly the prefatory clause has meaning and effect on the operative clause.  I’ll give some examples.  First, the prefatory clause suggests that non-militia members are not entitled to weapons more deadly than those of the militia itself, if that would imperil the militia.  Second, the prefatory clause implies that it’s okay for gun rights protected by the operative clause to be well-regulated.  Third, the prefatory clause strongly suggests that the rights protected by the operative clause are not limited to the home, given that militia members in the late 1700s had to carry weapons on the way to (and during) militia service.  Fourth, because people could be kicked out of the militia or put on menial duty for being lawbreakers or irresponsible, the prefatory clause suggests that it’s okay to limit gun rights of people who are not “law-abiding and responsible citizens” (as Justice Scalia wrote in Heller).  But all of that is a far cry from claiming that the prefatory clause implies that the operative clause does not recognize any right of non-militia members.  If that were true, then the word “people” in the operative clause would have been replaced with “militia.”