A Remark on Constitutional Phrasing

by Courtney C Horne @FireezDragon

So there are some people out there who insist that the constitution should be taken at its exact 200+ year old phrasing. They say there is no interpretation necessary.

Some of these people like to loudly complain about the fact that they can not own things like a rocket launcher or a machine gun. They love to point out the “shall not be infringed” part of the second amendment. They say that any ban on any weapon no matter what it is infringes. Some of them would loudly declare that they should be able to have a fully armed tank as long as they can afford it. Yes someone has told me with a straight face that they believe the constitution grants them the right to own a fully armed tank. They weren’t kidding. They weren’t exaggerating. They actually believed this and I am pretty sure I didn’t meet the only anomaly.

So let’s look at the text. There are actually two versions, the one passed by congress and the one ratified by the states. They read:

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.


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.

So some capitalization and punctuation varies but the text is the same. And it does include the phrase “shall not be infringed.” I give the literal wording folks that. Those words are there. But you know what words aren’t there??

Buy and sell. It says keep and bear. But it says nothing about the right to buy and sell. Nothing about the right to import or to engage in interstate commerce related to it. In fact, a hyper-literal reading would not prevent congress from banning all imports of firearms and banning all firearm interstate commerce. You can keep and bear the guns you have and any you can get in your state but beyond that, oh well.

Congress isn’t going to do this because it understands that you have to interpret the constitution. It understands that keep and bear inherently also relates to buying and selling even though the founders didn’t deem to include that in their phrasing. And it also understands that the founders couldn’t have anticipated tanks, rocket launchers, or machine guns or normal people wanting to own them.

And so looking at wording as if it is literal perfection as written- well it just doesn’t make sense. It falls apart to easy on a close inspection.