Thoughts on the wording of the Second Amendment
Most of the controversy over the Second Amendment arises from the fact that it has both a "militia clause," stating that a well regulated militia is essential, and then the "right to arms" clause. Prof. Volokh's article The Commonplace Second Amendment points out that the use of a prefatory clause stating a purpose was quite common in State constitution drafting of the time. (This makes sense. The idea of judicial review, of a court striking down laws as unconstitutional, was undeveloped at the time. As the Jefferson-Madison letters on the idea of a bill of rights suggest, a bill of rights could be seen as establishing certain rights beyond controversy, not to guide the courts, but to let the people know clearly when rights had been infringed, so that they might vote the scoundrels out, rise up in arms, or otherwise react en masse. So why not state why a right was important?)
It turns out Jame's Madison's original version of the Bill of Rights, as introduced in Congress, had several "purpose" clauses in it:
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate."
Without the wording the people have the right to keep and bear arms, the militia clause is dependent upon the government for its arms which it may recall or fail to supply to establish a standing army.
“Let me here call your attention to that part which gives the Congress power "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." By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither — this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. - Speech of Patrick Henry, June 5, 1788, Virginia's Debates on The United States Constitution- Elliot's Debates”
This speech is drawn from Virginia’s history: "For the encouragement of the inhabitants of this his majesties collony and dominion of Virginia, to provide themselves with arms and ammunition, for the defence of his majesties country, and that they may appear well and compeletely furnished when commanded to musters and other the king's service, which many persons have hereto delayed to do, for that their arms have been imprest and taken from them.-- Be it (a) enacted by the governour, councill and burgesses of this present general assembly, and the authority thereof, and it is hereby enacted, That all such swords, musketts, (b) pistolls, carbines, guns, and other armes and furniture, as the inhabitants of this country are already provided, or shall provide and furnish themselves with, for their necessary use and service, shall from henceforth be free and exempted from being imprest or taken from him or them, that are already provided or shall soe provide or furnish himselfe, neither shall the same be lyable to be taken by any distresse, seizure, attachment or execution, Any law, usage or custom to the contrary thereof notwithstanding." An Act for better supply of the country with arms and ammunition, April 1684-- 36th CHARLES II
Posted by: Rudy DiGiacinto at September 12, 2005 06:19 PM
I seems to me in the way it is worded, that with or without the prefatory clause, the second amendment ASSUMES that the people have a right to keep and bear arms, and it instructs that the government SHALL NOT INFRINGE upon that right. So it does not grant a right, it merely recognizes the right and prohibits the government from acting against that right. The prefatory clause contibutes one very good reason why the government should not be permitted to abridge the right.
Posted by: Mike Neely at September 15, 2005 07:59 AM