Atty. Ralph D. Sherman

130 West Main Street • New Britain, Connecticut 06052

tel. (860) 229-0213 • fax (860) 229-0235 • e-mail atty@ralphdsherman.com

Legal Opinion

August 1998

The Second Amendment (Part 2): The "justification" clause

This is the second in a series of columns on the meaning and interpretation of the Second Amendment: "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."

The language of the amendment is far from clear to today's readers. The first 13 words form what is known as the "justification clause." It's the only justification clause in the Bill of Rights, and it's often cited by those who argue that the Second Amendment does not guarantee a right to individual citizens.

In analyzing the justification clause, two basic questions arise. One is: Who is the militia? This question is very important, and I'll address it in the future. The more fundamental question is: Does it matter? That is, does the justification clause matter? Does it limit the right, or does it just explain why the framers thought it the right was important to include in the Bill of Rights?

The short answer is all I can give in the limited space of this column. The fact is, the writings of the framers show that they thought of the Second Amendment right as something that existed before and independently of the Bill of Rights. In other words, the right was not granted by the Second Amendment; the right was inherent in citizens as human beings.

Further, although the writing style of the amendment seems strange to us today, it was not unusual 200 years ago to include a justification clause in a constitutional provision. For example, Rhode Island's first constitution stated: "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty..." No one today would argue seriously that the liberty of a publication like the National Enquirer is "essential to the security of freedom in a state." But we do believe that freedom of the press is a broad thing, broader than the scope of Rhode Island's justification clause, broad enough to cover the National Enquirer.

Similarly, a provision of New Hampshire's 1784 constitution stated: "In criminal prosecutions, the trial of the facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed..." This justification was based on the fact that it would be difficult to ascertain the truth if the trial were held far away, because witnesses would be reluctant to travel. Today, with different justification, criminal defense attorneys sometimes want to move a trial to a location far from where the alleged crime was committed. But the defendant still has the right to a local trial, even though the 1784 justification may not matter to him.

So while the framers believed that the need for "a well-regulated militia" was a justification of the Second Amendment guarantee, the right existed independently of the framers' words. And there could be other valid justifications besides the one stated in the amendment.

To give our political opponents the benefit of the doubt, however, I will discuss the "militia" question in my next column.

Any readers who would like citations to books, articles, etc., on this topic should feel free to e-mail me.

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