The 2nd Amendment of the U.S. Constitution has become one of
the most debated and discussed of all amendments, particularly in the wake of
the horrifying trend of mass shootings in public places, schools, and
university campuses, across the U.S. and the world. There are compelling arguments on both sides
of the issue, as to whether or not, the 2nd amendment should be abolished. These arguments are the source of much heated
debate between Congress and the President, (who in fact proclaimed in his State
of the Union Address last night, that he would continue to defend the 2nd
Amendment).
2nd Amendment cases have been brought up to the U.S. Supreme
Court for more than a century. Dating
back to Presser v. Illinois (1886), the Supreme Court held that the Second
Amendment prevented the states from “prohibiting the people from keeping and
bearing arms, so as to deprive the United States of their rightful resource for
maintaining the public security.” More recently in District of Columbia v.
Heller (2008), the High Court cited self-defense was the “central component” of
the amendment and that the District of Columbia’s “prohibition against
rendering any lawful firearm in the home operable for the purpose of immediate
self-defense” to be unconstitutional. In
2010, with its ruling on McDonald v. Chicago, the court expanded its decision
in Heller (2008), in that “the right to possess a handgun in the home for the
purpose of self-defense” is applicable to the states through the Fourteenth
Amendment’s due process clause (though important to note that the decision by
the court interpreted this right to be afforded to citizens; not to include or
extend to non-citizens.)
Both, the narrowness of these decisions by the High Court,
as well as constitutional questions related to the 14th Amendment’s equal
protection clause, have left the door ajar to much more debate surrounding the
2nd Amendment. Particularly, whether the
2nd amendment should be interpreted as a right to self-defense, or whether the
right should be interpreted as a right (to the people) to organize and
participate in the militia, for the purpose of preserving their liberties.
What seems to escape the debate on both sides, is the
all-important preamble to the 2nd Amendment, which reads: “A well-regulated militia, being necessary to
the security of a free state…” followed
by the rest of the 2nd Amendment-which is the part that most of us know and
which the debate seems to focus on-“…the right of the people to keep and bear
arms shall not be infringed.”
The 2nd Amendment is the ONLY amendment with a
preamble. It begs the question of
why. Why did the Framers include this
preamble, rather than simply stating that the right of the people to keep and
bear arms would not be infringed? The
Framers were first and foremost, preoccupied with the prospect of a tyrannical
national government which would ultimately infringe upon the rights of the
states (and the people). So, to ensure
the security of each state, in its ability to defend its sovereignty vis-à-vis
the national government, (as the 2nd amendment states), they ensured that each
state would have the right to organize and arm its own militia. However, this right entrusted to the states
was not absolute; but rather required regulation (by each state), as the
preamble clearly states.
What does this mean in today’s America? Perhaps proponents
of gun control as well as supporters of the 2nd Amendment should pay more
attention to the preamble of the 2nd amendment, to find a workable solution
that serves the concerns of both sides. The
right to keep and bear arms is not absolute.
It requires regulation (by the states); and regulation implies controls
and restrictions. That may not sit well
with gun supporters, but that is what the Framers intended when they included
that all important preamble to the 2nd amendment. That said however, the right of the people to
keep and bear arms-expressed and interpreted as the militia-should be upheld, if
regulatory requirements established by each state are met.
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