The Founders and the 2nd Amendment

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Rob Natelson

Rob Natelson

EDITOR’S NOTE:  The following is excerpted from a speech by Rob Natelson given in Grand Junction, CO on March 23, 2013

The Second Amendment of the United States Constitution states that:

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

What does this amendment really mean?

In recent years, people offering answers to that question have often focused on the militia part of  the Second Amendment: “A well-regulated militia being necessary for the security of a free state. . .”

But in my view, that’s the wrong place to begin. The militia phrase is what lawyers call a “preamble”—a non-binding explanation of intent. It is not the effective, or operative, part of the amendment. In other words, it is only a guide to interpretation, not the actual law. The actual law is “the right of the people to keep and bear arms shall not be infringed.”

Notice two things about the phrase I just read.  First, it refers to “THE right of the people to keep and bear arms.” Like “the freedom of speech” and “the freedom of the press” in the First Amendment. The Founders were referring to a right already existing before the Constitution was ever adopted. In the Founders’ view, it was a natural right, given by God and not to be impaired by government. On the contrary, it was a right that government must guarantee.

Another thing this phrase—THE right to keep and bear arms—implies is that the Founders knew the scope of the right. In other words, they understood what it did and didn’t include. We can understand what it did and didn’t include by examining the history of the Founding. It has always bothered me that so many judges and constitutional writers merely speculate about what First and Second Amendment rights mean, rather than going to the historical records and finding out.

I’ll say more in a moment about what is and isn’t encompassed by the Second Amendment.

So—this phrase refers to “THE right to keep and bear arms.” It also says that this right “shall not be infringed.” What does that mean? On this subject, also, there’s no need to speculate. Because 18th century dictionaries tell us exactly what “infringe” meant.

In this context, the word “infringe” meant to reduce or impair in any way. In other words, government shall not reduce or impair in any way “THE right to keep and bear arms.” Today, political demagogues talk about imposing “common-sense” or “reasonable” restrictions on the right to keep and bear arms. But the Constitution, properly understood, is clear that there are NO permissible restrictions on the right, however much the politicians may think they are “common sense” or “reasonable.”

On the other hand, the Founding-Era record also tells us that not every use of every weapon is part of the right that cannot be infringed. So let’s look now at what the right does and doesn’t include.

History makes it clear that the Second Amendment is designed to serve four principal purposes.

First, it guarantees the states militia power of their own to balance the military power of the federal government;

Second, it promotes the God-given right of personal self defense;

Third, it enables the citizenry to repel foreign invasion; and

Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.

The first purpose—providing a state military balance to federal power—is more important in assessing federal gun control laws than in assessing state gun control laws. Since I’m focusing on the Colorado laws this evening, I’ll discuss here the other three principles. We begin with the right of self-defense.

 

CONTINUE READING http://tenthamendmentcenter.com/2013/04/01/the-founders-and-the-2nd-amendment/

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