http://www.sierratimes.com/03/06/11/greenslade.htm
The Second Amendment and the
Preamble to the Bill of Rights
By Robert Greenslade and Claude Ellsworth
The modern debate over the wording of the Second Amendment could
be quickly resolved if the Amendment was read through the
preamble to the Bill of Rights. A preamble to the Bill of Rights?
What are you talking about? You mean the preamble to the
Constitution don't you? No Senators Kennedy, Feinstein, Schumer,
Lautenberg and your fellow gun-grabbing buddies, we mean the
preamble to the Bill of Rights. Next to Hillary Clinton's billing
records from the Rose Law Firm, this little known text might be
the most closely guarded secret in American History.
Following the Federal Convention of 1787 and the subsequent
ratification of the Constitution, the several States began
submitting amendments to Congress for consideration. By September
of 1789 Congress had reduced 210 separate amendments to 12. The
amendments were inserted into a congressional resolution and
submitted to the several States for consideration. Of these,
numbers 2-12 were adopted and became the so-called Bill of
Rights.
A little known fact about this resolution is that it contained a
preamble declaring the purpose of the proposed amendments. Most
modern editions of the Bill of Rights either do not contain the
preamble or only include the last paragraph. The complete
preamble, which is still part of the Bill of Rights, is printed
below as it appeared in the 1789 resolution:
Congress of the United States,
begun and held at the City of New York, on Wednesday the fourth
of March, one thousand seven hundred and eighty nine.
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 ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United
States of America, in Congress assembled, two thirds of both
Houses concurring, that the following Articles be proposed to the
Legislatures of the several States, as Amendments to the
Constitution of the United States, all, or any of which Articles,
when ratified by three fourths of the said Legislatures, to be
valid to all intents and purposes, as part of the said
Constitution; viz.t
ARTICLES in addition to, and Amendment of the Constitution of the
United States of America, proposed by Congress, and ratified by
the Legislatures of the several States, pursuant to the fifth
Article of the original Constitution.
As stated in the preamble, the only purpose of the proposed
amendments was to prevent the federal government from
"misconstruing or abusing its powers." To accomplish this,
"further declaratory and restrictive clauses" were being
proposed. The amendments, when adopted, placed additional
restraints or limitations on the powers of the federal
government. Thus, every clause of the Bill of Rights, without
exception, is either a declaratory statement or a restrictive
provision.
A declaratory clause, pursuant to English language dictionaries,
is a simple statement or assertion. A restrictive clause is a
statement that restricts or limits. If the Second Amendment is
read through the preamble, it reads as follows:
Article II. A well regulated Militia, being necessary to the
security of a free State, (declaratory clause) the right of the
people to keep and bear Arms, shall not be infringed.
(restrictive clause)
The first part of the Amendment is declaratory, not restrictive,
because it is merely an assertion or statement that a well-
regulated militia is necessary to the security of a free State.
It does not grant the States or the people any rights. It also
does not restrict the federal government from exercising any
power. Thus, the first part of the Amendment has no effect on the
right to keep and bear arms, "collective [State] or individual."
The second clause, like the first, does not grant the States or
the people any rights. Therefore, any assertion that the Second
Amendment grants rights, "collective or individual," is
constitutionally inaccurate. In addition, since the Amendment did
not create any rights, then the right enumerated, whether it be
collective or individual, had to be an existing right.
This leaves us with only one option concerning the second part of
the Amendment. It is restrictive, not declaratory, because it
specifically places a restraint on the exercise of power by the
federal government.
Those groups and individuals opposed to the private ownership of
firearms claim this restraint pertains to the State militias.
According to the Brady Campaign, the Second Amendment was adopted
"to prevent the federal government from disarming the State
militias."
The U.S. Constitution established a permanent professional army,
controlled by the federal government. With the memory of King
George III's troops fresh in their minds, many of the "anti-
federalists" feared a standing army as an instrument of
oppression. State militias were viewed as a counterbalance to the
federal army and the Second Amendment was written to prevent the
federal government from disarming the state militias.
The Coalition to Stop Gun Violence claims the Amendment was
adopted to "ensure the right of the states to maintain their own
militias."
The Second Amendment was adopted to ensure the right of states to
maintain their own militia to protect themselves against foreign
and federal encroachment.
The Second Amendment, as shown by the preamble, does not place
any restraint on the powers federal government concerning the
States or their militias. Consequently, any assertion the Second
Amendment restricts the powers of the federal government
concerning the State militias is patently false.
There is another way to use the preamble to prove this fact. In a
sentence, a non-restrictive clause gives information that is not
essential to the meaning of a sentence. This information can be
removed without changing the meaning of the sentence. A
restrictive clause gives information that is critical to the
meaning of a sentence and cannot be removed without changing the
meaning of a sentence. If the Second Amendment is read through
this sentence structure, the declaratory clause in the first part
of the Amendment is the non-restrictive clause because it does
not restrain the exercise of power. Thus, the Amendment reads as
follows:
Article II. A well regulated Militia, being necessary to the
security of a free State, (non-restrictive clause) the right of
the people to keep and bear Arms, shall not be infringed.
(restrictive clause)
This sentence structure triggers a question. Is the existence of
a State militia essential to a people's right to keep and bear
arms? The answer is no because people can have a right to keep
and bear arms without the existence of a State militia. In the
alternative, since the word militia, as used in the Second
Amendment refers to an armed citizenry, not a State organized
army, you cannot have a State militia unless that same people has
the right to keep and bear arms. From a constitutional
standpoint, State militias exist because the individual citizens
who make-up those militias have the right to keep and bear arms.
Thus, the individual right to keep and bear arms is essential to
the existence of a State militia--not visa versa.
Since the phrase--"A well regulated Militia, being necessary to
the security of a free State," is the non-restrictive or non-
essential part of the Amendment, then, as stated above, it can be
removed without changing the meaning of the sentence. In
addition, this phrase is an incomplete thought and cannot stand
alone as a sentence. Thus, it needs addition information to give
it meaning.
Conversely, the phrase--"the right of the people to keep and bear
Arms, shall not be infringed," is the restrictive or essential
part of the Amendment. It cannot be removed without changing the
meaning of the sentence. This phrase is a complete thought and
can stand alone as a sentence because it does not need additional
information to give it meaning.
If the non-restrictive part is removed and the Amendment is read
in a manner that allows the verbiage to stand alone as a complete
thought, then the Second Amendment can be reduced to the
following sentence:
[T]he right of the people to keep and bear arms, shall not be
infringed.
Those groups and individuals who advance the militia
interpretation of the Second Amendment have failed to grasp the
significance of this verbiage. If the purpose of the Second
Amendment was to prevent the federal government from disarming
the State militias as organizations like the Brady Campaign
claim, then this sentence structure accomplishes that goal. By
denying the federal government the power to infringe the existing
right of the people right to keep and bear arms, the State
militias could never be constitutionally disarmed because the
people of the individual States are the militia referenced in the
Amendment. Thus, the States would retain the so-called right to
maintain armed militias. Irrespective of how organizations like
the Coalition to Stop Gun Violence attempt to twist the sentence
structure of the Second Amendment, it is the right of individual
citizens to keep and bear arms that ensures the existence of the
State militias contemplated by the Founders.
In conclusion, the preamble to the Bill of Rights shows that the
purpose of the Amendments was to prevent the federal government
from abusing its delegated powers. To accomplish this, further
declaratory and restrictive clauses were being added to restrain
the exercise of power by the federal government. Thus, the
preamble negates any assertion that the purpose of the Second
Amendment was to grant the States the right to maintain armed
militias. It also negates the claim that the Amendment granted
the people an individual right to keep and bear arms. The sole
purpose of the Second Amendment was to place an enumerated
restraint on the powers of the federal government concerning the
existing right of the people to keep and bear arms.
Robert Greenslade focuses his writing on issues surrounding the
federal government and the Constitution. He believes politicians
at the federal level, through ignorance or design, are
systematically dismantling the Constitution in an effort to
expand their power and consolidate control over the American
people. He has dedicated himself to resurrecting the true intent
of the Constitution in the hope that the information will
contribute, in some small way, to restoring the system of limited
government established by the Constitution.
--
Lady Libertarian - United States of America
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