The Second Amendment

Freedom and Gun-Control

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The first clause of the Second Amendment, the preamble, is "A well regulated Militia being necessary to the security of a free State," How important is this preamble in interpreting the Second Amendment? Historian David Thomas Konig, quoting from a widely used law dictionary of the eighteenth century, explains the importance of preambles in eighteenth century law: "The preamble, then, was more than merely a 'justification' for a statute, but a positive guide for understanding the purpose of the text of the statute in relation to other enactments. In the words of Giles Jacob, whose law dictionary enjoyed wide usage in the eighteenth century, 'The Preamble of a Statute which is the Beginning thereof, going before, is as it were a Key to the Knowledge of it, and to open the Intent of the Makers of the Act; it shall be deemed true, and therefore good Arguments may be drawn from the same.'102"

So the preamble of the Second Amendment is not superfluous as it would seem to be if it were merely a justification for the right. It is the "Key to the Knowledge" of the Second Amendment. Every clause in the Constitution must have some kind of effect. The preamble of the Second Amendment is no exception. Supreme Court Chief Justice John Marshall stated in Marbury v. Madison in 1803: "It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible.6"

In 1939, the Supreme recognized the importance of interpreting the text of the Second Amendment with the militia end in view: "The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." -United States v. Miller

Furthermore, it is difficult to understand why a military term such as bear arms would be used to describe the right to own and carry guns for private purposes. Legal scholar Michael C. Dorf explains, "In my view, protecting a 'right of the people to keep and bear Arms' is a sufficiently odd way of protecting an individual right to possess firearms for rebellion, self defense, or hunting as to provoke further inquiry.

"As I note in the next Part, at the time of the founding, the phrase 'bear arms' was most commonly used in a military setting, and even today it carries a military connotation." (Chicago-Kent Law Review Symposium on the Second Amendment vol. 76, 2000: 291) This is further supported by a search of the Library of Congress website. Simply type in the words "bear arms" and click search.

In all the recorded debates of the First Congress about the Second Amendment bear arms is used to refer to military activity. Elbridge Gerry of Massachusetts, for example, voiced his disagreement with the conscientious objector clause in earlier drafts of the Second Amendment which exempted such groups as Quakers from bearing arms. He explained, “I am apprehensive that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are the religiously scrupulous, and prevent them from bearing arms."

Thomas Scott of Pennsylvania echoed these concerns, He said that under the proposed clause, conscientious objectors could not be “called upon for their services” and that in such circumstances "a militia can never be depended upon. This would lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army.”

Gerry and Scott thought that exempting certain groups of people from militia duty could turn out to be a serious threat to the right to keep and bear arms. People opposed to war for religious reasons could still use firearms for private purposes so it’s difficult to see how such an exemption could threaten this right if the right is concerned with nonmilitary activities and has no necessary connection with a well regulated militia.

So what does the Second Amendment say about gun-control in our own day? Clearly, the evidence indicates that the Founders were clearly more interested in ensuring the existence of an armed citizen militia than in creating a barrier to laws intended to protect public safety. Nowadays, both sides of the debate show little interest in such a militia. Some think that gun control regulations should be stricter to protect public safety. Others are concerned that such regulations may interfere with their ability to use a gun in self-defense. In more recent rulings, the Supreme Court has tried to strike a balance between these two views. Basically, the court has recognized the validity of laws which don’t interfere with a law abiding citizen’s ability to use commonly owned firearms to protect their homes against intruders. Dangerous and unusual weapons, however, may be banned. The Supreme Court even went so far as to say that M-16’s, a weapon that would clearly be useful in a militia, may be prohibited. Such an approach is an attempt to resolve a modern day debate but is hard to reconcile with the plain militaristic language of the Second Amendment and the concerns the Founders had about tyranny. A more conservative court would have let the bulk of the issue be decided by the people through their elected representatives.

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