The Rev'd Fr. Robert Hart, Second Amendment Scholar
Thursday, September 26, 2024 at 02:09PM
Embryo Parson in Fr. Robert Hart, Right to Keep and Bear Arms



Well, it is clear that neither Fr. Hart nor Mr. Michals has ever read the US Supreme Court cases US v. Miller (1939), District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association, Inc. v. Bruen (2022), which speak clearly and authoritatively on the meaning of the Second Amendment, and particularly to the meaning of the "militia", and to the relationship between its prefatory clause (“A well-regulated Militia, being necessary to the security of a free State”) and its operative clause - what Hart calls the "subordinate" clause - (“the right of the people to keep and bear Arms shall not be infringed”). 

Unfortunately for Hart, as the Court in Heller noted in its primary holding, the operative clause is not logically subordinate to the prefatory clause, and neither was it viewed as such in American legal history:  "Private citizens have the right under the Second Amendment to possess an ordinary type of weapon and use it for lawful, historically established situations such as self-defense in a home, even when there is no relationship to a local militia." 

Concerning the logical relationship between the two clauses Fr. Hart thinks he understands, as David Kopel and I observe in a footnote in our 1997 Maryland Law Review Article, Communitarians Neorepublicans and Guns Assessing the Case for Firearms Prohibition:

“Stephen Halbrook observes that the Second Amendment may be stated in the form of a hypothetical syllogism: ‘If a well-regulated militia is necessary to the security of a free state . . . then the right to the people to keep and bear arms shall not be infringed.’ (HALBROOK, supra note 148, at 85).  If, for argument's sake, a civilian ‘well-regulated militia’ is no longer ‘necessary to the preservation of a free State,’ it does not logically follow that ‘the right of the people to keep and bear arms’ may be now infringed. To so conclude would be to commit the fallacy of denying the antecedent. In illustrating the fallacious logic entailed in denying the antecedent, an analogous but simpler syllogism may be used: ‘If it is raining, there are clouds. It is not raining. Therefore, there are no clouds.’ The conclusion is obviously fallacious, for there may in fact be clouds even though it is not raining.

The Cato Institute's Sheldon Richman parses as follows:

‘Approaching the sentence as grammarians, we immediately note two things: the simple subject is "right" and the full predicate is "shall not be infringed." This, in other words, is a sentence about a right that is already assumed to exist. It does not say, "The people shall have a right to keep and bear arms ...."That has important implications for the opening militia phrase .... Gun opponents often argue that if the opening phrase does not apply-if, say, the standing army takes the place of the militia-then the right to keep and bear arms is nullified. That view would require a willingness by the framers of the Constitution to agree to this statement: If a well-regulated militia is not necessary to the security of a free state, the right of the people to keep and bear arms shall(or may) be infringed. But it is absurd to think that the Framers would embrace that statement. Their political philosophy would not permit them to speak of a permissible infringement of rights .... The term infringement implies a lack of consent ....If [the Framers'] concern had been to keep the national government from limiting the states' power to form militias, they might have written: "A well-regu-lated militia being necessary to the security of a free state, the power of the States to form and control militias shall not be limited.’"

Hart is merely parroting the tired, old argument of liberal hoplophobes, discredited by the corpus of "standard interpretation" law review articles and now officially by the US Supreme Court, that Americans have the right to keep and bear arms ONLY in connection with service in the militia. 

Article originally appeared on theoldjamestownchurch (http://www.oldjamestownchurch.com/).
See website for complete article licensing information.