“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.”

At the time the Second Amendment was written there was no permanent, standing army. Consider the possibility that “the right of the people to keep and bear arms” is what keeps the Militia “well regulated” and thus the State “free.”

Also, the word “People” when used elsewhere throughout the Constitution refers to individual rights, not “collective” rights.

I confess that I have no idea what the Second Amendment means, and I don't find a whole lot of guidance in the decided cases that I have read.

What I do find interesting, though, is that folks on both sides of this issue seem to be focusing on what the language of the Second Amendment meant at the time it was adopted . . . all of a sudden everyone is an "originalist," I guess.

Andrew - I love it! Barnett "breathes life" into the Constitution just like Justice William Brennan would have! I am glad to see that you and he are forgoing the "strict-constructionist" views of Scalia and Thomas and prefer to interpret the meaning of the Constitution within modern life. I agree 100%!!!

Tom W's reading is the right one and most Constitutionalists do look at original intent. Sometimes language by itself can have different meaning based on small differences ie: "I did not have sex with that woman Monica Lewinsky" v. "I did not have sex with that woman, Monica Lewinsky". A comma can make all the difference.

Further, Bogus shies away from the RI Constitutional issue, built upon the US language. RI reads "The right of the individual to keep and bear arms shall not be infringed". Pretty definative... but not for the RI Supreme Court. Scary.

The Second Amendment is the one that guarantees all others. That is why it is second only to freedom of speech, religion and the press; the most basic freedoms.

JPS

Matt,

Professor Barnett's discussion of the militia is part of his originalist argument. Here's his conclusion…

Instead, resting their argument almost exclusively on historical “context” and parsing of text, [authors Richard Uviller and William Merkel] propose that the right to keep and bear arms was expressly conditioned on its exercise as part of a militia that no longer exists. This interpretation is belied by contemporaneous statements about the nature of the right and the meaning of the Amendment before, during, and after its ratification, by evidence of later usage, by the original meaning of the Fourteenth Amendment, by repeated affirmations by Congress, and by the current statutes of the United States.

Notwithstanding their opinion that "it would be difficult to conceive of any institution less necessary to the security of the fifty free states at the beginning of the new millennium" than the now-disorganized common militia, we may just need the militia again one day, as we did on September 11th. When we do, it may well be under circumstances where it would be better if its members have access to their own weapons to arm themselves. Fortunately, as the evidence shows, the founders had the foresight to enshrine an individual right of the people to keep and bear arms in the Constitution when they added the Second Amendment.

But if you're looking for someone forgoing the original interpretation, a better place to look is at the people claiming that 2nd amendment now applies solely to a form of organization, the modern National Guard, that didn't even exist when the amendment was written.

And I agree with Tom and Jon. It's a little difficult to believe that the Founders decided to stick one collective-only right into the middle of a list of individual rights.

In 18th century America, the militia was comprised of men who volunteered for service and who were required, by the state's lack of money for armaments, to bring their own weapons to the fight. This being a requirement for "any well regulated militia," of course the 2nd ammendment applied to every man, whether a member of a militia or not, as, one day, any man might be called upon to defend his country - or to defend his family and neighbors against a fascistic government at home.

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