Posted on 06/12/2003 11:36:10 AM PDT by 45Auto
The modern debate over the wording of the Second Amendment could be quickly resolved if the Amendment was read through the preamble to the Bill of Rights. A preamble to the Bill of Rights? What are you talking about? You mean the preamble to the Constitution don't you? No Senators Kennedy, Feinstein, Schumer, Lautenberg and your fellow gun-grabbing buddies, we mean the preamble to the Bill of Rights. Next to Hillary Clinton's billing records from the Rose Law Firm, this little known text might be the most closely guarded secret in American History.
Following the Federal Convention of 1787 and the subsequent ratification of the Constitution, the several States began submitting amendments to Congress for consideration. By September of 1789 Congress had reduced 210 separate amendments to 12. The amendments were inserted into a congressional resolution and submitted to the several States for consideration. Of these, numbers 2-12 were adopted and became the so-called Bill of Rights.
A little known fact about this resolution is that it contained a preamble declaring the purpose of the proposed amendments. Most modern editions of the Bill of Rights either do not contain the preamble or only include the last paragraph. The complete preamble, which is still part of the Bill of Rights, is printed below as it appeared in the 1789 resolution:
Congress of the United States, begun and held at the City of New York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.t
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
As stated in the preamble, the only purpose of the proposed amendments was to prevent the federal government from "misconstruing or abusing its powers." To accomplish this, "further declaratory and restrictive clauses" were being proposed. The amendments, when adopted, placed additional restraints or limitations on the powers of the federal government. Thus, every clause of the Bill of Rights, without exception, is either a declaratory statement or a restrictive provision.
A declaratory clause, pursuant to English language dictionaries, is a simple statement or assertion. A restrictive clause is a statement that restricts or limits. If the Second Amendment is read through the preamble, it reads as follows:
Article II. A well regulated Militia, being necessary to the security of a free State, (declaratory clause) the right of the people to keep and bear Arms, shall not be infringed. (restrictive clause)
The first part of the Amendment is declaratory, not restrictive, because it is merely an assertion or statement that a well-regulated militia is necessary to the security of a free State. It does not grant the States or the people any rights. It also does not restrict the federal government from exercising any power. Thus, the first part of the Amendment has no effect on the right to keep and bear arms, "collective [State] or individual."
The second clause, like the first, does not grant the States or the people any rights. Therefore, any assertion that the Second Amendment grants rights, "collective or individual," is constitutionally inaccurate. In addition, since the Amendment did not create any rights, then the right enumerated, whether it be collective or individual, had to be an existing right.
This leaves us with only one option concerning the second part of the Amendment. It is restrictive, not declaratory, because it specifically places a restraint on the exercise of power by the federal government.
Those groups and individuals opposed to the private ownership of firearms claim this restraint pertains to the State militias. According to the Brady Campaign, the Second Amendment was adopted "to prevent the federal government from disarming the State militias."
The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III's troops fresh in their minds, many of the "anti-federalists" feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written to prevent the federal government from disarming the state militias.
The Coalition to Stop Gun Violence claims the Amendment was adopted to "ensure the right of the states to maintain their own militias."
The Second Amendment was adopted to ensure the right of states to maintain their own militia to protect themselves against foreign and federal encroachment.
The Second Amendment, as shown by the preamble, does not place any restraint on the powers federal government concerning the States or their militias. Consequently, any assertion the Second Amendment restricts the powers of the federal government concerning the State militias is patently false.
There is another way to use the preamble to prove this fact. In a sentence, a non-restrictive clause gives information that is not essential to the meaning of a sentence. This information can be removed without changing the meaning of the sentence. A restrictive clause gives information that is critical to the meaning of a sentence and cannot be removed without changing the meaning of a sentence. If the Second Amendment is read through this sentence structure, the declaratory clause in the first part of the Amendment is the non-restrictive clause because it does not restrain the exercise of power. Thus, the Amendment reads as follows:
Article II. A well regulated Militia, being necessary to the security of a free State, (non-restrictive clause) the right of the people to keep and bear Arms, shall not be infringed. (restrictive clause)
This sentence structure triggers a question. Is the existence of a State militia essential to a people's right to keep and bear arms? The answer is no because people can have a right to keep and bear arms without the existence of a State militia. In the alternative, since the word militia, as used in the Second Amendment refers to an armed citizenry, not a State organized army, you cannot have a State militia unless that same people has the right to keep and bear arms. From a constitutional standpoint, State militias exist because the individual citizens who make-up those militias have the right to keep and bear arms. Thus, the individual right to keep and bear arms is essential to the existence of a State militia--not visa versa.
Since the phrase--"A well regulated Militia, being necessary to the security of a free State," is the non-restrictive or non-essential part of the Amendment, then, as stated above, it can be removed without changing the meaning of the sentence. In addition, this phrase is an incomplete thought and cannot stand alone as a sentence. Thus, it needs addition information to give it meaning.
Conversely, the phrase--"the right of the people to keep and bear Arms, shall not be infringed," is the restrictive or essential part of the Amendment. It cannot be removed without changing the meaning of the sentence. This phrase is a complete thought and can stand alone as a sentence because it does not need additional information to give it meaning.
If the non-restrictive part is removed and the Amendment is read in a manner that allows the verbiage to stand alone as a complete thought, then the Second Amendment can be reduced to the following sentence:
[T]he right of the people to keep and bear arms, shall not be infringed.
Those groups and individuals who advance the militia interpretation of the Second Amendment have failed to grasp the significance of this verbiage. If the purpose of the Second Amendment was to prevent the federal government from disarming the State militias as organizations like the Brady Campaign claim, then this sentence structure accomplishes that goal. By denying the federal government the power to infringe the existing right of the people right to keep and bear arms, the State militias could never be constitutionally disarmed because the people of the individual States are the militia referenced in the Amendment. Thus, the States would retain the so-called right to maintain armed militias. Irrespective of how organizations like the Coalition to Stop Gun Violence attempt to twist the sentence structure of the Second Amendment, it is the right of individual citizens to keep and bear arms that ensures the existence of the State militias contemplated by the Founders.
In conclusion, the preamble to the Bill of Rights shows that the purpose of the Amendments was to prevent the federal government from abusing its delegated powers. To accomplish this, further declaratory and restrictive clauses were being added to restrain the exercise of power by the federal government. Thus, the preamble negates any assertion that the purpose of the Second Amendment was to grant the States the right to maintain armed militias. It also negates the claim that the Amendment granted the people an individual right to keep and bear arms. The sole purpose of the Second Amendment was to place an enumerated restraint on the powers of the federal government concerning the existing right of the people to keep and bear arms.
False, sourceless. Naturally.
False.
OK. The protection of the right to keep and bear arms at the state level has always had its foundations in state constitutions and state laws.
You're free to try to produce so much as a single exception.
You can't, you won't. Old news.
Because that person had taken the inane contrary position that centralized federal power and an activist federal judiciary should replace those state mechanisms.
Poor you.
Good analogy.
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