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US Constitution, 2nd Amendment

1. A well regulated militia, being necessary to the security of a free state,
2. the right of the people to keep and bear arms, shall not be infringed.

James Madison wrote it. Its meaning had to have been understood at the time it was written. Yet, to modern readers, it has become a mystery, as cryptic as any quatrain written by Nostradamus.




clauses, drafts, interpretations


Some believe 2nd Amendment says right-to-arms depends on being in a militia -- quite wrong -- the reverse is true.

A militia depends on the people having a right-to-arms -- those compelled had to bring their own arms.


1. A well regulated militia, being necessary to the security of a free state,
2. the right of the people to keep and bear arms, shall not be infringed.

In the order above, the first clause may seem to define a purpose of the second clause, leading to the assumption right-to-arms applied to being in a militia.


1. The right of the people to keep and bear arms shall not be infringed;
2. a well armed, and well regulated militia being the best security of a free country;
3. but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person

Above is the order in Madison's earlier draft. In this, an existence of a right is acknowledged. The rights clause acts as the basis for following clauses. The supposed requirement of being in a militia, in this, seems absent or vaguely implied.


1. That the people have a right to keep and bear arms;
2. That a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.

Above is Virginia's draft proposal for "Bill of Rights" (Madison was Virginia's delegate). In this, clauses are separate sentences, only related by being in same paragraph. The rights clause stands alone, which Supreme Court affirmed in "D.C. vs Heller".


Although state militias are obsolete, and so too the militia clause, the right-to-arms is a specialization, an expression, of the natural right-to-defense. Since natural rights existed before, and will exist after, any constitution or law, the rights clause will never become obsolete (affirmed by Supreme Court).

Should be noted SCOTUS has reasons for not over-relying on any drafting history for interpretation, as perhaps done here.




Supreme Court's interpretations
of 2nd Amendment


summary:

Effectively now, 2nd Amendment has been interpreted and affirmed to have essentially this phrasing and meaning:

1. The people have a natural right to defend themselves;
2. and because a well regulated militia is necessary to the security of a free state;
3. the right of the people to keep and bear arms shall not only be infringed according to "reasonable" limitations;
4. this amendment applies to all levels of government.


2nd Amendment (original):

1. A well regulated militia, being necessary to the security of a free state,
2. the right of the people to keep and bear arms, shall not be infringed.


In D.C. vs Heller (2008), US Supreme Court demystified and interpreted 2nd Amendment, explained it phrase-by-phrase, suggesting this phrasing to help understand it:

1. Because a well regulated militia is necessary to the security of a free state,
2. the right of the people to keep and bear arms shall not be infringed.

Supreme Court recognized natural right-to-defense, then related it to rights clause of 2nd Amendment.

Supreme Court affirmed militia clause does not limit rights clause.

Rights clause can stand alone:
The right of the people to keep and bear arms shall not be infringed.

Ruling:
"Held: The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense."


In McDonald vs Chicago (2010), Supreme Court ruled 2nd Amendment, combined with (was "incorporated" by) 14th Amendment, also limits state governments:

"[..] this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense
[..] framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
[..] We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller."


References:
"District of Columbia v. Heller" (case 07-290) - supremecourt.gov
"McDonald v. Chicago" (case 08-1521) - supremecourt.gov




D.C. vs Heller

Here discusses some aspects of "D.C. vs Heller" which may be less well-known.

This case was initiated by Cato Institute and Institute of Justice. (see Anatomy of a Lawsuit: District of Columbia v. Heller, by Robert A. Levy)

commentary about majority's opinion:

Majority strove to balance individual rights vs governmental powers (dissenters strove for rights=0% powers=100%). Right-to-keep/bear-arms, like any other right, isn't absolutely unlimited (felons disqualified, etc). Yet, conversely, ended opinion by saying power of government isn't unlimited either, saying "takes certain policy choices off the table".

SCOTUS was perfectly aware D.C. had created an absolute ban indirectly thru a legal dilemma. Each part of this dilemma, individually, could be argued as not unconstitutional, as each part in itself wasn't fully limiting. More generally, SCOTUS is perfectly aware government will try to effectively destroy rights by pretense of regulation. SCOTUS quoted its prior decision: "A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional."

Majority argued first clause was a preface/preamble, second clause was operative. Oddly, dissenters didn't argue. But Madison wrote early drafts with clauses in reverse order.

commentary about dissenters's opinion:

Majority argued against Breyer applying interest-balancing (judicial doctrine of balancing-interests is often a pretense, misused to rule in favor of government against individual rights) : "A constitutional guarantee subject to future judges assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. [..] Like the First, it is the very product of an interest-balancing by the people which Justice Breyer would now conduct for them anew."

Draft of 2nd Amendment had a religious exemption "religiously scrupulous" clause, which does support argument that militia clause wasn't only an announcement/preamble clause. Majority counter-argued: "It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.", Quakers were notorious for being extreme pacifists, forbidding themselves to possess any weapons, interpreting such people would simply refuse to bear arms, for any reason.

Many statements from dissenters were so illogical as to be unintended humor. "As used in the Second Amendment, the words "the people" do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia." So 4 Supreme Court judges illogically base their argument on militia clause being the basis of the amendment, from which rights clause is derived. Therefore to them, "the people" was a typo that should've been written "only those people in the militia". 2nd Amendment would've been ludicrously pointless:
1. A well regulated militia, being necessary to the security of a free state,
2. [WRONG] the right of only those people in the militia to keep and bear arms, shall not be infringed.

A point of logic is, historically, militias were temporarily formed during an emergency, those citizens compelled into a militia brought themselves and their weapons. Why the word "keep" was written should be plainly obvious. Dissenters's argument implies "the people" (everyone) could be legally disarmed before a militia was formed, rendering a militia ineffective.

other commentary:

Although militia clause is practically obsolete, vestiges remain, some sheriff departments, like a militia, require deputies to bring their own guns. (US National Guard has some semblance and function of states's militias, but constitutionally is branch of federal military.)

notable quotes:

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications [..] the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

Ruling in "D.C. vs Heller" ended with:
"[..] but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."




notes