We argue fiercely today about the intended relationship between the famous opening phrase (“A well regulated militia, being necessary to the security of a free state,”) and the famous main clause (“the right of the people to keep and bear arms, shall not be infringed”). But it’s fruitless to try to nail down that relationship, to hope to prove for good and all that the opening phrase is or is not a preamble, or that a preamble does or does not determine the meaning of a main text, or that a “being” phrase means something different from or identical to a “whereas” clause.
The sentence is weak. The weakness is deliberate.
Madison couldn’t afford, on the one hand, to let the amendment seem to contradict the hard-won federal military power in the main body. He couldn’t afford, on the other, to underscore too strongly for the states’ comfort the overwhelming nature of that federal power. He seems therefore to have resorted to a preamble-ish-like phrase (others in the first 10 don’t have preambles), referring to supposed benefits of state militias, but resorting to the loose “being” construction — technically a kind of “absolute” phrase that modern English avoids, for good reason — that has left the phrase’s grammatical relation to the main clause permanently in doubt.
And even as the amendment’s opening phrase refers to a “free state,” its main clause refers to a “right of the people.” In 1789 Madison was still trying to move sovereignty away from the states and locate it in what the Constitution’s preamble calls “We, the people” — citizens of the whole United States. Some today who favor assertive gun laws follow the historian Garry Wills’ famous argument that the opening phrase refers to a state power, not an individual right, and that whereas in the Fourth Amendment, “the right of the people” does refer to individuals, in the Second it doesn’t. Meanwhile, defenders of a right to private gun ownership insist that when the founders said “a well-regulated militia,” “a free state,” and “the right of the people,” they simply meant that private individuals must remain armed against potential tyranny.
However well or poorly such arguments are formed — Wills’ is exhaustively well-founded and logical; many of the gun advocates’ are not — both sides in the current gun-rights debate are trying to make sense of something intended by its author not to make that kind of sense. Madison was not trying to protect a right to individual gun ownership. He was trying to conjure a mood of grudging, semi-coherent consensus, to establish nationhood. To that end, he denied real divisions and real effects and wrote the denial into founding law.
We must learn to manage, somehow, the unintended consequences of founding politics. To that end, we must face up to them. Without the nationalists’ smoothness — even their slipperiness — at the constitutional convention and during the amendment process, our nation might not have come into being. Neither Madison nor any other founder could have envisioned the modern uses that the Second Amendment has been put to, or that arms have. For political reasons having little to do with our struggles today, the founders incidentally built a murky confusion around the relationship of guns and liberty into American culture, a confusion that stunts, all these years later, much-needed public discussion of what has long since become a deadly national problem.
To begin to free ourselves from incoherence, to begin thinking publicly about how we might drastically reduce our penchant for gun violence, we must face the stark fact that in this case, our founders don’t have much help to offer us. We’re on our own.