Allanea
27-08-2004, 19:09
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.
Yes, yes, I know. Countless people wrote about it, many of them more intelligent then I am. But I just wanted to set a few things straight.
DISCLAIMER: This is not a post about gun control, nor is it a post about the validity of the Constitution. It is mean to answer one question, and one question only: Does the 2nd Amendment guarantee a right of individual people like you and me to own arms. If you support gun control, that it’s a different argument
So, what is it all about? Is that ‘right’ thing limited to the National Guard? Or does it include Mr. Jones the grocery salesman?
Let’s look at the wording, first. What does it say?
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.
This is obviously divide into two logical parts.
The first part is “A well-regulated Militia, being necessary to the security of a free state”. The second is “the right of the people to keep and bear arms, shall not be infringed.”
The two clauses are related logically in a structure common to 18th and 19th century document. In legal jargon, they are a ‘justificatory’ and an operative ‘clause’. So, in other words, the first half provides a reason to have the second. That is, ‘The right of the people to keep and bear arms [henceforth RKBA] shall not be infringed.’ BECAUSE ‘a well regulated militia’ is ‘necessary to the security of the free state’.
That means that that while the government is not allowed to infringe the RKBA, the RKBA is not limited to members of the militia - because the justification clause does not limit the operative clause.
And Professor Eugene Volokh of the UCLA Law School thinks that way, too. (http://www1.law.ucla.edu/~volokh/common.htm)
Consider that as a simple analogue:
"A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed."
What does it mean? It means you are going to stop infringing on the right to read and write, hoping that, as a result, some of them will be smart enough to vote for Bush. To the same tune, the Second Amednent means the government is going to stop infringing on your RKBA, hoping that, as a result, it will be possible to create a ‘well-regulated militia’.
It is perfectly clear, from the writing of the Founding Fathers that they intended ordinary people to be able to exercise the right to bear arms:
One loves to possess arms, though they hope never to have occasion for them.
Thomas Jefferson to George Washington, 1796. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.
[The Constitution preserves] [/I] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms. [/I]
James Madison,The Federalist Papers, No. 46.
The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...[I]t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Paper
In 1982, the United States Senate started a sub-committee on the subject. They reached the same conclusion.
Bibliography
The CommonPlace Second Amenment (http://www1.law.ucla.edu/~volokh/common.htm) by Eugene Volokh
The Right to Keep and Bear Arms Report of the Subcommittee on the Constitution of the committee on the Judiciary United States Senate, 97th Congress, Second Session February, 1982 (http://www.accuratepress.net/report.html)
The Right to Arms: Does the Constitution or the Predilection of Judges Reign? Robert Dowlut, Oklahoma Law Review (http://www.guncite.com/journals/dowjud.html)
Recommended Reading
Halbrook, Stephen P., [I]That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984.
Yes, yes, I know. Countless people wrote about it, many of them more intelligent then I am. But I just wanted to set a few things straight.
DISCLAIMER: This is not a post about gun control, nor is it a post about the validity of the Constitution. It is mean to answer one question, and one question only: Does the 2nd Amendment guarantee a right of individual people like you and me to own arms. If you support gun control, that it’s a different argument
So, what is it all about? Is that ‘right’ thing limited to the National Guard? Or does it include Mr. Jones the grocery salesman?
Let’s look at the wording, first. What does it say?
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.
This is obviously divide into two logical parts.
The first part is “A well-regulated Militia, being necessary to the security of a free state”. The second is “the right of the people to keep and bear arms, shall not be infringed.”
The two clauses are related logically in a structure common to 18th and 19th century document. In legal jargon, they are a ‘justificatory’ and an operative ‘clause’. So, in other words, the first half provides a reason to have the second. That is, ‘The right of the people to keep and bear arms [henceforth RKBA] shall not be infringed.’ BECAUSE ‘a well regulated militia’ is ‘necessary to the security of the free state’.
That means that that while the government is not allowed to infringe the RKBA, the RKBA is not limited to members of the militia - because the justification clause does not limit the operative clause.
And Professor Eugene Volokh of the UCLA Law School thinks that way, too. (http://www1.law.ucla.edu/~volokh/common.htm)
Consider that as a simple analogue:
"A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed."
What does it mean? It means you are going to stop infringing on the right to read and write, hoping that, as a result, some of them will be smart enough to vote for Bush. To the same tune, the Second Amednent means the government is going to stop infringing on your RKBA, hoping that, as a result, it will be possible to create a ‘well-regulated militia’.
It is perfectly clear, from the writing of the Founding Fathers that they intended ordinary people to be able to exercise the right to bear arms:
One loves to possess arms, though they hope never to have occasion for them.
Thomas Jefferson to George Washington, 1796. The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors.
[The Constitution preserves] [/I] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms. [/I]
James Madison,The Federalist Papers, No. 46.
The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals...[I]t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.
Albert Gallatin to Alexander Addison, Oct 7, 1789, MS. in N.Y. Hist. Soc.-A.G. Paper
In 1982, the United States Senate started a sub-committee on the subject. They reached the same conclusion.
Bibliography
The CommonPlace Second Amenment (http://www1.law.ucla.edu/~volokh/common.htm) by Eugene Volokh
The Right to Keep and Bear Arms Report of the Subcommittee on the Constitution of the committee on the Judiciary United States Senate, 97th Congress, Second Session February, 1982 (http://www.accuratepress.net/report.html)
The Right to Arms: Does the Constitution or the Predilection of Judges Reign? Robert Dowlut, Oklahoma Law Review (http://www.guncite.com/journals/dowjud.html)
Recommended Reading
Halbrook, Stephen P., [I]That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984.