Historical insight

[unixronin]

"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."

The arguments about the meaning of the Second Amendment are near-continuous, even since DC v. Heller.  Possibly the three most oft-repeated arguments invoked to weaken it are attempts to narrowly define the meaning of "arms", attempts to argue that "the People" actually means "the States" when used in the Second Amendment, and arguments that the prefatory militia clause, rather than being explanatory, is rather a condition, and that it is no longer true.

To get a clearer insight on this last, we can shortcut much argument by simply considering the original draft form of the relevant passage in the Bill of Rights recommended by the Virginia Ratifying Convention, in June 1778:

"That the people have a right to keep and bear arms; 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; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

It's pretty clear from reading this that the keep-and-bear clause stands on its own, and that rather than being a necessary condition for it, the militia clause is actually a benefit enabled by it.  The draft then goes on to explain why a citizen militia is felt to be superior, in time of peace, to a standing army, but recognizes that this is not always possible by amending the qualifier "as far as the circumstances and protection of the community will admit".  No such qualifier — indeed, no qualifier whatsoever — is amended to the keep-and-bear clause.

Any questions?

Comments

[unixronin.livejournal.com]

Maybe they just felt the document was getting too verbose as it was. Not that it would have stopped us today....

[ilcylic.livejournal.com]

This is a case where a bit of verbiage then would have saved us a lot of verbiage now. Say, NFA 1934, GCA 1968, FOPA 1986, 1994 Crime Bill, 1994 AWB, All of Section 922, etc. :D

[unixronin.livejournal.com]

Yeah, I believe it would. Sometimes I wish I could interfere just a teensy bit in history, and go back to make the comment, "I think you're failing to make sufficient allowance for future lawyers searching this document for possible loopholes that they can exploit in order to violate it."

[novel-tharkun.livejournal.com]

But then you'd have the authors, instead of preparing a loose law set to guide a nation and allow changes for a long time, preparing something more akin to the tax code in attempts to use English as a technical language.

I'd hate to try to think how ripe a dense document would be to arguments of definition shift in phrase and words.

[unixronin.livejournal.com]

Well, in this case, I think the best clarification of the intent of the Second Amendment would have been to omit the militia clause altogether. "The right of the People to keep and bear arms, shall not be infringed." Period.