![]() Remarkably, scholars, courts, and both sides of the gun debate have ignored the last clause- “shall not be infringed”-which helps illuminate the Amendment’s meaning. ![]() However, in 2008 the Supreme Court in Heller dismissed the preamble and focused on the rights clause-“the right of the people to keep and bear Arms”-to find, for the first time, an implied right to own a gun for self-defense, a “right” not found in the text and never debated at founding conventions. For 200 years, most courts focused on the Amendment’s prefatory clause- “A well-regulated Militia, being necessary to the security of a free State”-to conclude its purpose was to protect state militias. Guesswork over Two Thirds of the AmendmentĬonstitutional scholars have long considered the 2 nd Amendment “baffling” and its first two clauses hopelessly contradictory. These meanings have not been self-evident, though they should be. Let’s walk through how the Amendment’s precise use of language begins to reveal its plain meaning. Heller to choose instead between two individual rights-to serve in the militia or to self-defense-never arguing the state right debated. ![]() Unable to explain either, gun-control and gun-rights advocates asked the Supreme Court in District of Columbia v. Its wording, and how exactly it gave states what they demanded, have long mystified scholars and the courts. The Antifederalists won this debate, resulting in the 2 nd Amendment that preserved the States’ right to maintain armed militia. “If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it?” Cannot put them into the hands of her militia-men?”īut Antifederalists like Patrick Henry rejected assurances that “states have the right of arming” militia, warning “implication will not save you, when a strong army” comes. In state ratification debates, Federalist leaders like James Madison, who soon drafted the Amendment, assured: “I cannot conceive that this Constitution, by giving the general government the power of arming the militia, takes it away from the state governments.” John Marshall, later chief justice, argued: “If Congress neglects our militia, we can arm them ourselves. Constitution-that shifted to Congress the power “ to provide for organizing, arming, and disciplining Militia”-left the States’ right to arm their militias merely implied, and subject to federal tyranny. The 2 nd Amendment was drafted out of fears that the proposed new U.S. Under the country’s first constitution that governed the revolution and founding, the States had an express right to maintain and arm their militias.
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