The 2nd Amendment and The Right to Keep and Bear Arms

This year the Supreme Court will be reviewing a case involving the 2nd Amendment, McDonald v. Chicago. The central question to be decided in this case will be whether or not the 2nd Amendment applies to the states. In my opinion it should.

The 2nd Amendment says, "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." Through it's expression, "the right", the 2nd Amendment is stating that right is a pre-existing right. It doesn't create the right to exist, it declares that the right does exist. In the absence of law, Man has certain natural rights. Among those are the rights to self-defense and self-preservation. In order to exercise the rights to self-defense and self-preservation one must have the means to exercise them, and thus must have the right to keep and bear arms for ones protection. The 2nd Amendment, therefore, declares the pre-existing right to keep and bear arms, and prohibits that right from being infringed.

However, one may ask, "why does the 2nd Amendment reference the militia?" I believe to answer that one needs to look at the Constitution and consider how the Bill of Rights were added to the Constitution. When the Bill of Rights was drafted James Madison had wanted the first 10 Amendments to be inserted into the Constitution. However, this did not happen. Instead the Bill of Rights was tacked on at the end of the Constitution rather than having the individual Amendments inserted in various places within the Constitution. So, the way I see it, one needs to look at where the 2nd Amendment may have been inserted into the Constitution.

The place to look is Article 1, section 8. which states "The congress shall have power, To provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." If you add the 2nd Amendment to that clause it would look like this; "The congress shall have power, To provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress. 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." Seen in that manner, I believe it makes more sense.

The militia section of the 2nd Amendment explains the importance of the militia in protecting a free State, it does not mandate membership in the militia to keep and bear arms, but rather protects the right to keep and bear arms in order that the Congress should be able to organize, arm, and discipline the militia. If states and their municipalities were able to take away a person's right to keep and bear arms, then the ability of Federal Government to call forth, organize, discipline, and arm the militia could be put at risk. As section 8 says, states are limited to appointing officers and training the militia according to the discipline prescribed by Congress. It doesn't give states the right to take arms away from the people who would make up the militia. From this perspective my belief is that the 2nd Amendment is related to Congress' authority to organize the militia and it applies to the states through the 14th Amendment.

Extremus