The Second Amendment: Clarity - Part 1

Discuss General Issues

The Second Amendment: Clarity - Part 1

Post Number:#1  Postby JerTech » Fri Nov 11, 2011 3:56 pm

In honor of those who have used arms to defend our rights...


The Second Amendment to the United States Constitution

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.

What is the law of the land?

The Second Amendment is made up of two clauses. The first clause reads, "A well regulated militia being necessary to the security of a free state," and is known as the prefatory clause. The second clause reads, "the right of the people to keep and bear arms shall not be infringed." This is known as the operative clause.

A straightforward reading of the Second Amendment clearly shows that the first clause is not operational law. It is merely a preface to the law, written to explain why this amendment was created. Only the second clause is operational law. The Supreme Court of the United States has upheld this understanding:

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.
District of Columbia v. Heller (1)(a)

Therefore, with the understanding that the first clause is only a preface to the law, we see that the operational supreme law of the land simply declares that "the right of the people to keep and bear arms shall not be infringed."

We often try to look to other writings from our founding fathers in order to put their laws into context. This piece will contain several quotations from those involved in the writing of the Constitution. However, it must be understood that not all of these great men agreed with each other. The content of the Constitution was hotly debated, and that certainly includes the Second Amendment. Context is helpful, but contextual writings are not law. We must remember that only that which has been codified into law is law.

What does it mean to be regulated?

Despite the fact that the prefatory clause is not operational law, we can better understand the intent of the Second Amendment when we clarify this clause. First, let's look at what it means to be regulated.

In this context, the word, "regulated," refers to the competency of the militia. It is an adjective form of the word, "regular" - a professional soldier. (example: The regulars are supplemented by auxiliaries to form a larger, combined unit of soldiers.) It would be similar to saying, "well trained" and "well equipped." It does not refer to regulation in the sense of restriction by law.

This understanding is further supported by the fact that the operative clause states that the right shall not be infringed. A restriction of a right is, by definition, an infringement. This form of regulation would put the prefatory clause at odds with the operational clause.

Furthermore, if the first clause of the Second Amendment was operational and it referred to regulation in the sense of restriction by law, the amendment would contradict itself. If the logical law of noncontradiction were violated, the Second Amendment would be absurd - nonsensical. Ultimately, it is clear that the Second Amendment in no way supports any restriction on the right of the people to bear arms.


Disclaimer: I do not claim to be an expert on history or law. I am simply attempting to generate healthy discussion. I will update this as necessary.

The Second Amendment: Clarity - Part 1
The Second Amendment: Clarity - Part 2
The Second Amendment: Clarity - Part 3
The Second Amendment: Clarity - Part 4
Hominem unius libri timeo.
Wisconsin Carry Infringed - An interactive map of Wisconsin's posted locations.
The Second Amendment: Clarity - A treatise on what our right really is.
User avatar
JerTech
Forum Moderator
Forum Moderator
 
Posts: 2617
Joined: Tue Jul 05, 2011 2:00 am
Location: Milwaukee County

The Second Amendment: Clarity - Part 1

Advertisement

Advertisement
 

Re: The Second Amendment: Clarity - Part 1

Post Number:#2  Postby SA1911 » Fri Nov 25, 2011 7:48 pm

Nicely done, JerTech.

Another way to look at the logic is: the people need to have the right to keep and bear arms before the militia could be formed from those people. If the people didn't already have the arms, the militia would have been non-existent.

Although not a perfect comparison, the Swiss Army system has some similarities.
The 1911 pistol remains the service pistol of choice in the eyes of those who understand the problem. I was told I ought not to use my pistol, because it was not fair. The first thing one should demand of his sidearm is that it be unfair. Jeff Cooper
User avatar
SA1911
Founding Member
Founding Member
 
Posts: 547
Joined: Mon May 30, 2011 2:00 am
Location: Near Wausau


Return to General Discussion

Who is online

Users browsing this forum: No registered users and 1 guest

cron