For the constitutional scholars amongst you...

[63splitwindow]

"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."

Why is the bolded part there in the first place? Surely not superfluous wording is it? The 2nd could have so easily not included that phrase and have unequivocally have said what many want it to say:

The right of the people to keep and bear Arms shall not be infringed.

[elleng]

1. Not bolded in the original,

and in the decision evaluating the 2d amendment, the Supremes actually decided to IGNORE it, much to the amazement of MANY.

The Supreme Court held:[43]

(1) 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 within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.
(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.
(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.
(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

https://en.wikipedia.org/wiki/District_of_Columbia_v._Heller

[63splitwindow]

3. "The Amendment’s prefatory clause announces a purpose"

Was the part of your answer about it not being bolded serious? I hope not.

Regarding the part of Heller I have quoted, are there any other examples of such an "announcement" in the Constitution?

[elleng]

5. The Second Amendment of the United States Constitution reads:

"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."

[Nuclear Unicorn]

2. Notice it addresses "a free state" as opposed to "the State."

It is intended to protect a quality of government, not a particular government.

[63splitwindow]

4. But why announce purpose at all?

Is this done elsewhere regarding other rights?

[dumbcat]

9. Because it was drafted by a different group of people

as were other parts of the Constitution. There were different groups that drafted the various amendments. This group must have thought the prefatory phrase was helpful. Then they were dicked with, modified, and changed to something that could receive a consensus of agreement.

There is no reason to look for consistency of style in the document.

[63splitwindow]

11. That makes sense. nt

[X_Digger]

23. In other 18th century writing, yes.

It's an odd construction for today's english readers. You still see it today in the text of legislation. e.g. "Wherefore, it is incumbent upon us to protect pizza- pizza being important for late-night study sessions; therefore the right of people to raise and cook tomatoes shall not be infringed."

[Old Codger]

6. Semantics

The wording of that amendment and all the others is in context of the usage of the day, the word regulated at that time meant trained, not as a lot say ruled over or any such thing...

The debate between the collectivist and the individualist
interpretations of the 2nd has often focused on the meaning of "well
regulated" in the opening phrase "well regulated Militia". The
collectivists claim this this refers to a Militia which is tightly
controlled by the government, deducing this from the etymology of
"regulated" which relates to "ruled". However, this ignores the usage
of the word "regulate" in which the "rule" refers to the proper
operations of a device rather than to man-made laws. We still see this
in the word "regular", which in many contexts means "properly operating."

http://yarchive.net/gun/politics/regulate.html

[63splitwindow]

8. I am not asking what it means...

I am asking why it is there at all if it was not meant to substantively affect the right to bear arms.

[Old Codger]

14. Ok I get that

My opinion on that it means more in the context of the part pertaining to the necessity for a well trained militia, at the time of this (as I understand what I have read) the militia consisted of every able bodied male over the age of 16 who owned a gun..they needed to be coordinated "regulated" . If I recall my history the confrontation at Lexington was caused by an attempt to confiscate the firearms and ammunition in Concord..

[Hortensis]

19. :) Ask the NRA why they carefully did not engrave the

introductory absolute phrase on the wall in their headquarters entry. Those words allow the federal government to limit the right of individuals to bear arms, and so they pretend they don't exist.

[Old Codger]

24. I really

Don't give much of a shit what the nra has to say or do,mostly they are one of the reasons that we cannot get some sort of reasonable gun control... The discussion concerning the 2nd amendment has been going on for a long time and I am pretty sure it will continue for some time to come...

[Hortensis]

25. Strictly speaking, my humor was directed at Splitwindow, Oldcrabby.

But your contribution is nevertheless of course greatly appreciated.

[Old Codger]

26. Oldcrabby??? N/T

[Hortensis]

27. Oh, sorry!

[Nuclear Unicorn]

20. Apparently it's semantics until it isn't.

[HereSince1628]

7. Our opinions on this don't much matter. Judges have given interpretations

and those interpretations are what count...at least until SCOTUS picks the issue up, re-examine it, and rule outside of those earlier interpretations.

If you want to approach it differently, through, a national convention to rewrite part of the constitution, the constitution is open to that.

[63splitwindow]

10. I agree on both your points...

Do YOU have an opinion as to why it is there?

[HereSince1628]

16. Not opinion so much as what I was taught...

The new United States didn't have and didn't much want a large, expensive to maintain standing army. Yet, the founders appreciated the need for volunteer militias to rise as needed to meet immediate needs of local, regional and national defense without waiting for arms to be delivered.

At the same time, self-defense and hunting were so common and so accepted that approval to have weapons for that purpose was largely taken for granted.

If we were writing an amendment about firearms in 2016, we would undoubtedly write something about 100 pages long trying to meet all the circumstances experienced over 200+ years and those anticipated by our imaginations. What the bill of rights did was keep its statement on guns short and to the point of the government's need. Not really addressing in any specific or limiting way the needs of citizens

[63splitwindow]

17. Thank you. nt

[NutmegYankee]

12. The first clause does not limit the second clause. It's actually common to Constitutions.

For instance the Rhode Island Constitution of 1842 stated:

Sec. 20 The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.

Like many state Constitutions, it also stated:

Sec. 22 The right of the people to keep and bear Arms shall not be infringed.


The purpose of the right is well understood. The right of commoners to keep and own arms was part of English common law, as derived from the Saxon tradition. We codified that already existing right. An armed population had always been the traditional defense force of Republics up until that time and this country was going to need a similar defense.

[beevul]

13. Its justificatory.

It is written very similar to the 1842 rhode island free press clause in their state constitution:


The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.

The overall point, however, is trivial to refute:

The second amendment and the bill of rights itself restrict ONLY government and authorize nothing, and contrary to belief popular among anti-gun folks, "A well regulated militia..." is not, and never was meant as a qualifier.

Looking at individual state constitutions, history shows us that they were authored by people who thought owning guns was an important individual right.

[jmowreader]

15. Several of the Founding Fathers were opposed to America having a standing army

The Bill of Rights is best understood as the Founding Fathers' plan to keep the tyranny of the Crown from ever happening here. The reason we have a Second Amendment is because Jefferson didn't want a standing government-owned army. His idea was pretty decent for the time: if we allow free men to own weapons of war (some rich guys raised private artillery companies and there were a LOT of horse cav and horse infantry units) they'll be ready and willing to muster and defend America if there's ever an invasion. Problem is, private citizens with no outside control will go home when it's time to put in the squash crop - or when the Other Side drops a red-hot cannon ball on their neighbor's roof from three miles away. The original justification for the Second evaporated when America raised a permanent military, but the Amendment is still with us like a rash that won't go away.

[63splitwindow]

18. Thank you. nt

[moondust]

21. Just ignore that part.

It doesn't mean anything because there aren't any militias for "the security of a free State" anymore. We don't need militias because we have a standing army, navy, air force, marines, coast guard, national guard, and reserves now. Plus there are no longer any slaves that need to be kept from running away by the threat of a bullet in the back. The Supreme Court basically says it's okay to go ahead and ignore the parts of the Constitution that seem outdated or don't fit your agenda.

[X_Digger]

22. "Because I'm out of soda, I'm going to the store." -- do stores sell more than soda?

Am I obligated to only buy soda?

18th century english was filled with this construction, {reason}, {statement}. For comparison, see Rhode Island's constitution, Article I, Section 20- "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject..".

You seem to think that the bill of rights somehow limits rights to certain purposes, or 'grants' rights to people. It doesn't. The preamble is a great place to start:

[div class='excerpt']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 insure the beneficent ends of its institution.

The Bill of Rights was intended as a 'the government shall not' document- "to prevent misconstruction or abuse of its powers"- not a 'the people can' document. If the Bill of Rights were a listing of all a person's rights, there would be no need for the ninth and tenth amendments ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." respectively.)

You should read other cases such as US v Cruikshank ("This right is not a right granted by the Constitution . . . neither is it in any manner dependent upon that instrument for its existence.&quot