Why The Prefatory Clause In The 2A?

[ConstitutionCowboy]

If Article I, Section 8, Clauses 15 and 16, deal with calling forth, organizing, arming, and disciplining the militia, wouldn't that give more than a passing legitimacy to the prefatory clause of the Second Amendment? To me, it tends to coincide with these militia clauses. Congress has power to call forth the militia because Congress must rely upon the militia to execute the laws of the Union, suppress insurrections, and repel invasions - to ensure the security of our free state.

The militia is the only permanent armed force in the Union and it existed prior to the formation of the Union. Though Congress has power to raise and support armies, and power to provide and maintain a navy, Congress doesn't have to. Ergo, the militia, being the only permanent armed force in the Union, and the militia being comprised of armed citizens, wouldn't it make sense that the clause in the Constitution prohibiting infringement of the right of the people to keep and bear arms be prefaced with a passage uniting it with Article I, Section 8, Clauses 14 and 15?

Even in Presser v. Illinois, the Court said the militia is the "reserve" military force and that the states cannot deny the citizens the right to keep and bear arms, thus depriving the Union of calling forth the militia even though the Court said the Second Amendment didn't apply to the states at that time. Digressing a little bit here, I'd say that if the states can't deny the people the right to keep and bear arms - thus depriving the Union the military resource - it's the same as the Second Amendment applying to the states.

One more digression: The Court in Presser v. Illinois labeled the militia as the "reserve" military force. If the Court meant that it is the reserve force because, no matter what, it is always there to fall back on, then the Court has mislabeled it. The militia is the main military force because it is always there, cannot be disarmed, and even though a standing army is raised, the militia forces will always be the first on the scene because only We the People - the militia - are numerous enough to have a presence on every scene at all times.

Back to the original train of thought, since the Constitution makes the Union dependent upon an armed populace - the militia - for the security of our free state, it makes sense that when the Second Amendment begins with, "A well regulated militia, being necessary to the security of a free state, ..." that this prefatory clause hearkens back to Article I, Section 8, Clauses 14 and 15. To that end, the right of the people shall not be infringed. So, with that in mind, no matter what "excuse" government can conjure up for limiting or restricting our keeping and bearing arms, it cannot employ any such excuse without depriving the Union its only guaranteed to be there, ready, always armed, Johnny-on-the-spot military force.

All that said, it's not to say that our keeping and bearing arms is limited to militia duty. It can't be. The right is not protected in that fashion. Our keeping and bearing of arms is limited to securing our free state. That includes the defense of our selves. The defense of ourselves is the first step in securing our free state - our state of being free. And, since no one can predict what arms will be necessary to meet whatever force bears down upon our free state, we must be free to bear up whatever force is necessary to secure our free state.

Now you might all be wondering why I brought this up. I brought this up because the anti-gun-rights crowd likes to say that the prefatory clause in the Second Amendment limits our keeping and bearing of arms to militia duty when in fact all the prefatory clause does is follow up on Article I, Section 8, Clauses 14 and 15. And, so what if the prefatory clause in the Second Amendment ties our keeping and bearing of arms to militia duty! Since We the People are the militia, what greater duty do we have than to protect our selves, our loved ones, our free state, our sovereign states, and our precious Union? I can think of no better reason to keep and bear arms and no better reason to protect that right from infringement.

Woody

 

[SMS]

I think you already said it...back then, the "militia" was "the people" and more specifically all able bodied men.

One of the key things the Supreme Court is supposed to do when faced with a Constitutional question is look at the intent of the document and read the text using the meaning of the words at the time the document was written. (that's why elections matter, all the McCain haters should be kicking themselves right now...as Obama prepares for his second Supreme Court nomination in less than two years)

Obviously militia has a different meaning to people today than it did hundreds of years ago....but anyone who tries to use that opening clause as an argument against a universal right is a mental midget.

 

[ConstitutionCowboy]

I think you already said it...back then, the "militia" was "the people" and more specifically all able bodied men.

One of the key things the Supreme Court is supposed to do when faced with a Constitutional question is look at the intent of the document and read the text using the meaning of the words at the time the document was written. (that's why elections matter, all the McCain haters should be kicking themselves right now...as Obama prepares for his second Supreme Court nomination in less than two years)

Obviously militia has a different meaning to people today than it did hundreds of years ago....but anyone who tries to use that opening clause as an argument against a universal right is a mental midget.

Quite right. All the prefatory clause says is, "By the way, since we rely upon the militia for our security, ..." It's the same argument I've seen that goes like this: "Since the science professor called in sick, science class is canceled today." The fact that the professor called in sick has no bearing on the operating clause about classes being canceled. If the announcement simply said "Science class is canceled today," the effect upon you is the same whether or not the professor is sick.

Woody

 

[buckeye]

One of the key things the Supreme Court is supposed to do when faced with a Constitutional question is look at the intent of the document and read the text using the meaning of the words at the time the document was written.

I agree whole-heartedly. Unfortunately, such thinking gets a person sneeringly branded an "originalist" by the self-supposedly enlightened. Wasn't the constitution written in plain language of the day? Wasn't it meant to be a timeless document, addressing (in that plain language of the day) difficulties of governing and reasserting pre-existing Rights?

 

[MadDawg]

Well back when the mostly agricultural village based societies were not likely to face tanks or cruise missles the whole militia thing makes a bit of sense. Of course one should read about the Battle of Bladensburg and how effective the citizen militia was back when they didnt have to face Cobra Gunships.

This sounds alot like some prelaw talk radio debate topic.

I got lost somewhere, who cancelled science class and why didnt the grad student just sub in? He can do more than just grade the freshman test papers.

 

[LightningCrash]

Five minutes reading about the history of the 2A could easily dispel the cognitive dissonance you are experiencing.
http://en.wikipedia.org/wiki/Second...ion#Drafting_and_adoption_of_the_Constitution

Wikipedia has listed the iterated draft forms of the 2A through its progress.
Particularly interesting is Madison's initial draft:

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

 

[rawhide]

Some scholarly discussion on the prefatory language in the 2A:

http://www.azcdl.org/Lund_PrimerOnTheRKBA.pdf

 

[henschman]

All the prefatory clause says is, "By the way, since we rely upon the militia for our security, ..."

This is right.

Well back when the mostly agricultural village based societies were not likely to face tanks or cruise missles the whole militia thing makes a bit of sense. Of course one should read about the Battle of Bladensburg and how effective the citizen militia was back when they didnt have to face Cobra Gunships.

I think you underestimate the power of the Rifleman... or the power of a Nation of Riflemen, if we were to become one again. Just one man who can control an entire quarter mile radius around him is pretty powerful, but a group of men who can do this are exponentially so. If we had even the 3% of the population that the founders had who could do this, there is no military force on the planet that would be capable of subduing us.

I think Col. Jeff Cooper says it better than me:

"It is interesting to hear certain kinds of people insist that the citizen cannot fight the government. This would have been news to the men of Lexington and Concord, as well as the Mujahedeen in Afghanistan. The citizen most certainly can fight the government, and usually wins when he tries. Organized national armies are useful primarily for fighting against other organized national armies. When they try to fight against the people, they find themselves at a very serious disadvantage. If you will just look around at the state of the world today, you will see that the guerillero has the upper hand. Irregulars usually defeat regulars, providing they have the will. Such fighting is horrible to contemplate, but will continue to dominate brute strength."

Another good Cooper quote: "The rifle is a weapon. Let there be no mistake about that. It is a tool of power, and thus dependent completely upon the moral stature of its user. It is equally useful in securing meat for the table, destroying group enemies on the battlefield, and resisting tyranny. In fact, it is the only means of resisting tyranny, since a citizenry armed with rifles simply cannot be tyrannized."

Of course the whole point in being a Nation of Riflemen is that no government in its right mind would ever even begin to think of doing anything too oppressive against them in the first place. Its a check and a balance against an overpowerful government, put in place with the hope that it never has to be used for its intended purpose. It is also a check and balance that is basically non-existent in our current society, in which even the vast majority of rifle owners are not what you could call Riflemen. The fact that this check and balance is so weak should scare anybody who knows anything about the history of the 20th Century.

What's the answer, you ask? Easy! The Appleseed Project!

 

[Gideon]

Of course the whole point in being a Nation of Riflemen is that no government in its right mind would ever even begin to think of doing anything too oppressive against them in the first place.

Some people think that armed homeowners are less likely to be robbed...

Then along comes a nice young lady selling magazine subscriptions, or a delivery man with a package for you to sign for, and they steal your identity. A person can rob you blind with a smile and a handshake and you might even invite them in for cookies and milk.

Governments are the same. Rifles are nice, and incredibly useful against those with much power and few people skills. But sometimes it takes a little more than open combat to secure these freedoms.

 

[henschman]

Yes, the nature of government is that it tends to accumulate as much power as it can get away with without causing widespread revolt. They don't do anything that would piss off enough people bad enough to make them take up arms -- they make very small and incremental moves on our liberty, and try to impose them in the least noticeable way possible. Its not part of any conspiracy -- its just the nature of government.

A good example is how gun control is handled in this country versus other countries. When the british commonwealth countries wanted to ban a type of gun, they just passed a law and told everybody to hand them over. That would not go over well in America. Gun control is done much more gradually here. We have always gone with licenses, taxes, restrictions on further importation or production of a certain type, stuff like that.

They do this in lots of areas of our lives. When they want to make people do something, the government frequently uses a tax incentive or something that doesn't seem quite as harsh or noticeable as sending out the stormtroopers to enforce it.

I know, its really devious, and it is harmful to liberty, but the fact is that the only thing keeping the government from accomplishing its ends through more quick, direct, and harsh means is the fact that people would be up in arms if they did this. The fact that our government has to be so much more sneaky in regulating our lives than the governments of other countries probably has a lot to do with the fact even today, in our society's pathetic state, our people are still the most individualistic, least trustful of centralized authority, and yes, the best armed people in the world.

I bet that if we were a nation of Riflemen again, we would be even more jealous of our liberty. Being a Rifleman isn't just about being able to go to war to protect liberty -- there is something else about being confident in the use of arms that makes a person a little more independent-minded, self-reliant, questioning of authority, and persistent. Thomas Jefferson said that while marksmanship only gives moderate exercise to the body, it "gives boldness, enterprise and independence to the mind."