The Right of the People to Keep & Bear Arms

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 2^nd 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 2^nd 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 2^nd 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 2^nd 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 4^th 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 1^st 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 2^nd Amendment might mean, the operative clause is as clear as anything in the Constitution.

Finally, the argument that the 2^nd 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.

Comments

[LC]

eloquently explained. bottomline is the that second amendment no matter how its parsed does not say you have the right to bear arms only if you need to form a militia. a little common sense would say that my rights not being infringed upon i will already be armed and ready if a militia needs to be formed.

[George Mason]

Allow me to put this into 18th century context: "By the rude bridge that arched the flood, their flags to April breeze unfurled, here once the embattled farmer stood, and fired the shot heard 'round the world." This is why the right of the people to keep and bear arms shall not be infringed. Too many of our liberal friends do not understand that the purpose of our Constitution is to limit the power of the government so that it does not infringe on the rights of the people.
The Constitution tells the government what it cannot do, it does not place limits on the people.

[Richard Pierce]

George: Close but no cookie for you. The Constitution tells the government what it can do, not what it cannot do. In other words if it's not in the Constitution then the General Government cannot do it. Our General Government is one of limited delegated powers. If we the people did not delegate a power to them, then they are forbidden to do it. Our Government has for so long ignored this principal that it no longer operates as a legitimate Government. The one law they passed that really burns me the most, because I am reminded of it every day, is the law they passed requiring toilets to use a certain amount of water to flush it. They used the commerce clause as the part of the constitution granting them the right to regulate it. No one can tell me that just because a toilet is shipped across state lines that the Government can tell me how much water I can use to flush it. That and taxation are the two most abused clauses in the Constitution they use to justify their unconstitutional power grabs.

[Anthony Renli]

It has always been my opinion that if the other portions of the bill of rights apply to states, then the second amendment applies to states. It’s as simple as that. Based off of the Constitution as it is written, they decided correctly.

Now, if I were re-designing the constitution I would probably add some provision allowing local control (on a city by city basis) so that if the people in Chicago want to restrict gun ownership, they can. This is a case where I personally believe that local control should be what decides the issue. That being said, this would require amending the Constitution, which would be at best almost impossible and at worst would have massive unintended consequences.

[George Mason]

Richard old boy, according to my copy of the Costitution (especially the Bill of Rights) the phrasing that is repeated over and over is "Congress shall make no law....(infringing on our rights)." The "government may not quarter soldiers in our homes" "property may not be taken without just compensation." "The right to trial cannot be denied." etc. The first articles of course describe our governmental structure but the way I read it the purpose is to protect us from the type of government depredations visited upon our forefathers by the king (and on us by the Obama regime).

[Donald Pay]

I have no problem with the decision. Better to be "armed and progressive" than go through another Supreme Court coup like the one that put the tyrant Bush in office. If that happens again, well, let's just say it ain't gonna happen again.

[CMh]

My take is that the framers assumed a standing army(well regulated militia) would be needed to protect the State from outside forces (being necessary to the security of a free State). Because the state would have an army it was essential that the people always be armed to protect themselves from the State.

[Ivan]

I guess the duck can't count! Every recount by every group, government or private had Bush winning. The supreme court ruling was the only decision that could be made. You've got to know you lose all credibility when you keep spewing this drivel. Donald you must be extra proud of your man Gore knowing the Oregon authorities are reopening the case accusing him of assault on a woman.

[KB]

Thanks for all the comments. George and Richard: I think you are carrying on the old argument, dating from the Federalist era: does the Federal Government have only the powers explicitly or implicitly granted in the Constitution, or does it have any power of government not explicitly or implicitly proscribed? For better or worse, from the very beginning, the latter understanding has been controlling. Blame John Marshall.

[KB]

Thanks for all the comments. George and Richard: I think you are carrying on the old argument, dating from the Federalist era: does the Federal Government have only the powers explicitly or implicitly granted in the Constitution, or does it have any power of government not explicitly or implicitly proscribed? For better or worse, from the very beginning, the latter understanding has been controlling. Blame John Marshall.

[George Mason]

cmh; you need to read the whole Constitution. We only have a standing navy. The army is stands at congresses discretion. Our forefathers were concerned about standing armies as well which is why the President (a civilian) is C-in-C.

[William]

Personally, I DO blame John Marshall (not that it does me a lot of good) - lol

[Murat]

Law enforcement will never make a dent. But btweeen drug treatment and prisons are there any bets on the winner in the state budget crisis battle? I'll take prisons and give you 10-1. Originally posted by Joe Mealey

[Rekany]

It's awfully quiet in here. Silence eqlaus assent? Everyone agrees with Scalia, and New York Times v Sullivan was wrong. Or maybe everyone's just politely ignoring my earlier faux pas in hitting post too soon. In which case, I'll just follow up on myself a third time. To provide a Florida angle, there's Florida Star v BJF. That would have to fall if for-profit newspaper corporations had no First Amendment protection. But there's more recent, topical news out of Broward, courtesy of the :A South Florida mayor pledged this week not to speak to reporters unless they register as lobbyists. Under a new county ethics code, all elected city officials in Broward County, Florida must record the names of any lobbyists with whom they meet. To Lauderhill Mayor Richard Kaplan, that includes reporters. “Though reporters do not necessarily consider what they do is lobbying, their work is provided to the editors who use their research to write editorials,” Kaplan wrote in an email to a Sun-Sentinel reporter. Editors try to influence the decision-making process indirectly, which, Kaplan wrote, is lobbying. [...more...]So, do for-profit newspaper corporations have a special entitlement under the First Amendment? Apart from, say, television stations, which lobby the FCC.