In my last blog entry, I began to analyze some historical context regarding militias and the right to bear arms. Now, I would like to partake in some textual analysis and illustrate how the Second Amendment most certainly provides the individual right to bear arms:
1) As previously stated, there has historically never been a need to ensure the rights of soldiers because they were always protected. Even with that in mind, the Founding Fathers stated explicitly the military powers given to the federal government: raise and support armies, provide and maintain a navy, and maintaining the militia (Article 1, Section 8, Clauses 12-16). Since the first Article already enumerated that the federal government can maintain a militia, arguing for a militia's right to bear arms is a redundancy.
2) “A well regulated militia being necessary to the security of a free State” is prefatory, i.e. this phrase is a preamble. Preambles to amendments were common back in the day. One example is the Third Article of the Northwest Ordinance: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Does this mean that if society deems religion as irrelevant to good government, that we should not encourage education reform in the inner cities of Chicago?
The Constitution itself has yet another preamble embedded within a stipulation, this time within the Copyright Clause (Article 1, Section 8, Clause 8): “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” If there is a publication that does not promote the progress of science or useful arts, does it mean that a publisher is deprived of copyright protection? No! The federal government ensures copyright for all people. The purpose of the prefatory phrase is to illustrate an eighteenth-century issue. In short, whether this phrase was in the amendment or not, one should be able to figure out the operative clause, i.e., we have a right to bear arms.
3) This should be a given, but there are words in the English language that change meaning over time. As much dismay as this will cause my friends enamored with Big Government, “well-regulated” just so happens to be one of those words. Back in the day, “well-regulated” actually meant well-functioning. And just as a refresher, “militia” referred to “any able-bodied man.”
4) What is remarkable about the amendment is to note what it doesn’t say. It does not say that it protects the rights of the militia to bear arms. It does not say that the peoples' right to bear arms is protected only to the extent that it provides a well-regulated militia [See points 2 and 6]. Sometimes, tacitness can be as powerful as words.
5) “Location, location, location.” Although this phrase is used in real estate, the argument holds strongly when analyzing texts. Where a certain passage, word, or phrase is located helps give the text its meaning. If we don’t understand the context of a given phrase, one can pluck any phrase out of any text and distort the very meaning. Where is the Second Amendment located? This shouldn’t seem like a question I should even have to ask, but just as a refresher, the answer to that is the Bill of Rights. What is the purpose of the Bill of Rights? To establish the rights of the individual. The phrase “the people” is also located in the First, Fourth, Ninth, and Tenth Amendments, all of which dealing with the individual. The Tenth Amendment even uses language to distinguish between “the State” and “the people!” Since the Second Amendment is surrounded by nine other amendments ensuring the rights of the individual, it makes no contextual sense to assume that this amendment applies to the National Guard.
6) I know this is considered as an antiquated relic in the overall legal community, but we tend to forget that the Ninth Amendment exists. The text itself says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The essence of the Ninth Amendment is that the Constitution protects any non-enumerated individual rights. This amendment makes two important statements regarding our discussion. First, even if the Second Amendment did not protect the right to bear arms, the right to bear arms would certainly be protected by the Ninth Amendment because the right to bear arms has historically been a natural right. Second, since gun regulation is not explicitly stated as a power granted to the federal government, one can presume that they have no jurisdiction over gun control.
Conclusion: As for constitutionality of the right to bear arms, the case of McDonald v. City of Chicago is important indeed. The Fourteenth Amendment states, amongst other things, that any rights protected in the Bill of Rights [from being infringed upon by the federal government] also merit as much protection from state and local government. Once this historic case is resolved, the right to bear arms will firmly be established within American jurisprudence.