There is one major flaw in your otherwise very interesting analysis. It is where you discuss the meaning of “security of a free state”. In order to better understand this wording, one needs to look at the actual debate that took place over the wording of the amendment at the time.
The 2nd Amendment, as originally proposed, contained the words “security of a free country”. This is obviously significant, as it eliminates the concept that they were talking about “state” as a state of being free or state of political freedom. They were, in fact, discussing the preservation of the country.
The wording was changed to “state” after southern states, led by Virginia, expressed concern over the implication that the Federal Government would be empowered to regulate who could function in the militia and thus be armed. The southern States feared that the Federal government might include slaves in a call to service and offer them arms that would not be taken away. They wanted to make sure that the states could have a say in who was called to service, and have the power to disarm any slaves who were called to service. Thus the wording was changed to “State”.
When one looks at this process it is hard to argue against the idea that “well-regulated” was meant to define a collective, and not an individual, right. This is in fact what the courts – including the SUpreme Court in 1937 and a Federal Appeals court in 1995, had always held to be the case. It was only in the recent Heller case that the Supreme Court reinterpreted the 2nd Amendment to guarantee an individual right. Interestingly enough the majority decision was written by Scalia – a man who CLAIMS to strongly believe in “original intent” as a guiding light and who certainly knows all of this history.
If “country” was changed to mean state as in “state of Virginia”, that’s a different conclusion, all right, but it doesn’t change the instruction to the federal government in any way.
Bottom line, the prefatory phrase is not an instruction; it’s informational and contains absolutely no direction for the government. So it really doesn’t matter what it means.
It’s like the preamble. Full of words, but signifying nothing.
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#1 by David on February 9, 2013 - 12:33 am
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There is one major flaw in your otherwise very interesting analysis. It is where you discuss the meaning of “security of a free state”. In order to better understand this wording, one needs to look at the actual debate that took place over the wording of the amendment at the time.
The 2nd Amendment, as originally proposed, contained the words “security of a free country”. This is obviously significant, as it eliminates the concept that they were talking about “state” as a state of being free or state of political freedom. They were, in fact, discussing the preservation of the country.
The wording was changed to “state” after southern states, led by Virginia, expressed concern over the implication that the Federal Government would be empowered to regulate who could function in the militia and thus be armed. The southern States feared that the Federal government might include slaves in a call to service and offer them arms that would not be taken away. They wanted to make sure that the states could have a say in who was called to service, and have the power to disarm any slaves who were called to service. Thus the wording was changed to “State”.
When one looks at this process it is hard to argue against the idea that “well-regulated” was meant to define a collective, and not an individual, right. This is in fact what the courts – including the SUpreme Court in 1937 and a Federal Appeals court in 1995, had always held to be the case. It was only in the recent Heller case that the Supreme Court reinterpreted the 2nd Amendment to guarantee an individual right. Interestingly enough the majority decision was written by Scalia – a man who CLAIMS to strongly believe in “original intent” as a guiding light and who certainly knows all of this history.
#2 by admin on February 9, 2013 - 3:43 am
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David, thanks so much for your comment.
If “country” was changed to mean state as in “state of Virginia”, that’s a different conclusion, all right, but it doesn’t change the instruction to the federal government in any way.
Bottom line, the prefatory phrase is not an instruction; it’s informational and contains absolutely no direction for the government. So it really doesn’t matter what it means.
It’s like the preamble. Full of words, but signifying nothing.