What does the Second Amendment to the Constitution mean? Let's look at it. From ePublius:
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.
Does the 2nd Amendment establish a right of individual citizens to keep and bear arms? My friend and esteemed Keloland colleague, Cory Heidelberger, argues not. His argument is a familiar one of late, but only of late. Indeed, it is the only coherent argument against the obvious conclusion that the Supreme Court reached.
Cory reads the portion of the amendment up to the second comma as controlling. The 2nd Amendment empowers the states governments to regulate firearms in pretty much any way they wish, for the purposes of regulating state militias. Thus, it cannot limit the power of the states to ban guns, but only limits the power of the federal government to do so.
There are three basic problems with this argument. The first is that, if you really think this is the way to interpret the Constitution, you would have to conclude that the Establishment Clause empowers South Dakota to establish a state church. The legislative purpose of the latter was clearly to prevent the establishment of a national church by Congress, and to protect the then existing state establishments. I doubt that Cory would endorse that conclusion, but if he doesn't it makes his argument look rather ad hoc.
The second problem is that the argument is inconsistent with the language of the amendment. The 2nd Amendment consists of an explanatory clause and an operative clause. I applaud Cory for noticing that none of the other amendments has an explanatory clause. But I also notice that the Constitution itself has an explanatory section, the Preamble. As beautiful and priceless as the later is, I don't know that the language of the Preamble controls the legal meaning of any part of the document. It is clear in this case that the explanatory clause does not control the operative clause.
Let's consider an analogous case. Suppose I leave my millions earned by blogging to Cory, by this phrase in my will:
Cory Heidelberger, being the best Keloland blogger, I leave him my estate.
Would that middle clause empower a judge who preferred the posts of David Newquist or the Radioactive Chief to give the money to one of the latter? No. Heidelberger gets the cash, because that's what the last clause plainly states.
The operative clause of the 2nd Amendment is similarly plain in its meaning:
the right of the people to keep and bear Arms, shall not be infringed.
Consider that phrase: "the right of the people." Not the prerogatives of state governments, but the right of the people. We know what that means. From the 4th Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
The "right of the people" refers to rights of the individual persons who make up the people. Likewise with this clause in the 1st Amendment:
the right of the people peaceably to assemble.
That is a right of individual persons to come together, peaceably, with others of a like mind. Whatever the explanatory clause of the 2nd Amendment might mean, the operative clause is as clear as anything in the Constitution.
Finally, the argument that the 2nd Amendment doesn't protect an individual right to bear arms is at odds with the history of the times in which it was drafted and ratified. As Justice Scalia shows in Heller, the "right to bear arms" in the seventeenth century was understood as a right of individuals to be scrupulously guarded against the designs of tyrannical government.
Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."
That's what the right to keep and bear arms means. It means the right to keep and bear arms. It means that government cannot disarm the people. If you believe that the language of the Constitution means anything at all, you have to believe that the right to bear arms is protected against the Federal Government. If you believe that the fundamental rights protected in the First Ten Amendments also apply to the states, then the Court was dead spot on in Heller and in McDonald v. Chicago. No creative reading of the Constitution can avoid this.