A complete understanding of the Second Amendment
Conventional approaches to the Amendment amount to: (1) cite a Framer who referred either to the militia as a State-run institution, or a Framer who referred to an individual right, and (2) argue that proves the Amendment was meant to protect only a State institution or an individual right. Oh, and (3) explain how the Framers who fall into the other class were really just sloppy with their wording. They said militia, but meant individual right, or said individual right, but were really thinking of militia duty.
But what warrant do we have for assuming that the framers -- an intellectual elite, of a period distinguished by its clear thinking and precise writing -- were just being sloppy? Or that Jefferson, who thought we should have revolutions every 25 years or so just to keep in form, and John Adams, who feared popular revolt almost as much as he feared tyranny, had exactly the same views on this matter?
What if we were to approach the Amendment in a scientific manner, assuming that when two men said different things they may have meant different things, and that our duty is to explain ALL the history as best we can?
This is a theme I began in my article "The Second Amendment and the Historiography of the Bill of Rights" (linked in the sidebar). Let me summarize it ...
At the time of the framing, there were two predominant American political philosophies.
(1) Classical Republicanism, which traced back to Harrington and thence to Machiavelli. This did not emphasize rights as such (a properly created republic would protect personal rights anyway, and a defective one would be not stopped by mere "parchment barriers" of written declarations). Its core was a triple relationship between property, political power, and force. Force took the form of the militia, composed of landowners, who alone could vote. The militia could be as powerful as anyone wanted, yet pose no danger. It couldn't revolt to seize power: as voters, they already had the power. Nor to seize property: as landowners, they already had the property. (Thus the concept resolved Machiavelli's dilemma, that a hired army must either be too weak for defend you or strong enough to take over, for "there is no reason why an armed man should obey an unarmed one"). To this point of view the militia, as an institution, is essential. (I say as an institution: note that the amendment refers to a 'well-regulated miltia"--at the time well-regulated meant well trained, well organized. It's not enough that every citizen be armed, they must also be disciplined and trained. The Classical Republicans also believed that universal military training would promote unity, patriotism, and political responsibility).
(2) What I call proto-Jeffersonianism. This was an outgrowth of the first. It emphasized individual rights (even as against a properly organized government). Also, it went beyond Classical Republicanism in wanting to give voting rights to non-landowners, in what is today termed universal manhood sufferage (women came in later, of course, although Richard Henry Lee, the eccentric Virginia Classical Republican, was in favor of giving landowning women the vote back in the 18th century).
So what if we had two different political groups wanted two different approaches to citizens and arms?
Look at the history. George Mason (a thoroughgoing Classical Republican) and Thomas Jefferson (a, well, Jeffersonian) in 1776 both proposed a Declaration of Rights for Virginia.
Mason's draft, which was adopted, had the provision: "That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state..." No mention of an individual right. (In fact, militia service was not a right at all, it was a duty). BTW, voting was restricted to landowners and running for office restricted to major landowners.
Jefferson's draft provided: "No freeman shall be debarred the use of arms." No mention of the militia. And he would have given the vote to all taxpayers and militia members (he explained that those who paid to support the state or were ready to fight to defend it had a sufficient tie to warrant voting privileges, whether they owned land or not).
Shortly thereafter, Pennsylvania adopted its own first constitution and bill of rights. This had an interesting political history. Patriot forces had to deal with two antiwar blocs -- the major merchants, who wanted British trade, and the Quakers, who were as always adverse to war. By a variety of clever political tactics, they neutralized both. The resulting convention was dominated by proto-Jeffersonians. They adopted a declaration of rights which was almost entirely taken from that of Virginia ... with one major exception. Out went the statement about the militia. In its place went a clearly individual right: "the people have a right to bear arms for the defence of themselves and the state...." With it went near-universal manhood sufferage -- all militia members and taxpayers got the vote.
The two approaches (either praise the militia, or protect an individual right, but don't do both) stayed separate for years and, as I develop in the article, tracked provisions for voting. States and ratifying conventions that gave universal manhood sufferage or were dominated by proto-jeffersonians did the one, those that gave only property owners the vote did the other. Until the Virginia (federal) ratifying convention of 1788, where the two were both recognized. Why not? They were hardly inconsistent. Protect individual arms AND call for a militia, thus pleasing both political groups.
This approach has the advantage of explaining all of the Framers' statements, rather than just those that support one's own view, and of taking them all at face value, rather than assuming that many Framers became strangely inarticulate when arms and militia were involved.
To phrase the point otherwise: proof that certain Framers thought X was the reason for an amendment does not prove that Y was not also a reason, unless we make the assumption that an amendment can have but one purpose -- which is obviously not the case, just look at the first, fifth, and sixth amendments. Thus proof that George Mason referred to the militia as important does not disprove that the amendment was also directed at protecting individual rights to arms. In fact -- when the first House rather dramatically edited down Madison's draft, some of the first things to go were his prefaces explaining why this or that right must be protected. The fact that the second amendment's militia provision survived this editing suggests that it had importance beyond that of an explanatory preamble. It, and the right to arms, both survived because each had importance independent of the other.
UPDATE in light of jvm's comment:
1. The evidence suggests that the second amendment embodies two independent constitutional provisions. I would not use the term "rights" since militia duty was a duty rather than a right. In the early States, court-martials for failure to comply with militia statutes were commonplace. Until the first draft was instituted in 1863, militia duty was the sole avenue for the government to compel military service, so speaking of militia as a right is close to speaking of a right to be drafted.
The wording of the second amendment is interesting in that the militia portion does not really order the government to do anything or forbid it to do anything. It makes a statement of fact. I think this has two reasons. (1) to Classical Republicans, declarations of rights were "declarations." If the government was not properly arranged, they would be disregarded anyway. (2) It'd have been pretty hard to define, with precision, just what they wanted with regard to the militia. The task might approach writing the Uniform Code of Military Justice into a constitution. After all, the idea was not to stop the government from acting but rather to induce it to pass legislation that would achieve an end.
BTW, there are two versions of the Amendment, one with one comma, and one with 2 or 3. No way to determine which is more official, since documents were hand-copied then, the scribes sometimes punctuated as they pleased, and most of the real originals were lost when the Capitol was burned during the War of 1812.
2. With regard regulation, I hope to bring on some guest bloggers who have published on that issue. It is safe to say that no right is without limits. Freedom of speech ends when a person sends a blackmail note (a proposal to use freedom of expression unless paid to keep silent), or demonstrators expect to occupy and block a street, or use bullhorns in the middle of the night, etc. (the "reasonable time and place" restrictions). At the same time, the recognition that rights have outer limits does not render them meaningless on a theory that "any restriction that I can categorize as 'somewhat reasonable' will fly." When I was at Interior Dept, they spent two weeks in court hashing out the "time and place" restrictions for the regulations on picketing on the White House sidewalk.
My own thoughts on this were that an analogy can be drawn to caselaw on the electronic media, a new technology with problems the Framers could not have foreseen. A high speed printing press is as protected as a Ben Franklin model; a requirement that the government authorize either press would be patently unconstitutional. On the other hand, if everyone could set up a 100 megawatt radio station in their backyard and choose the frequency, there would be a few problems, so the FCC is allowed to regulate that (but not in a way that would frustrate the core of the First Amendment -- no discrimination between messages allowed).
Akhil Amar and Sanford Levinson have floated a different approach. The purpose of the 2nd Amendment was primarily to allow the people as a mass to deter or resist tyranny, and the purpose of the 14th was to allow them to resist criminal attack. Ergo a weapon not useful to resisting criminal attack, nor to allowing the people en masse to resist -- a weapon in short that would allow one man or a few to become tyrants via terrorism -- can be restricted.
In any event, recognition of the right as a right is the beginning of the process of determining just how far it extends. In the case of the First Amendment, that only took the better part of a century (grin).