In response to the article “Lawyers, Guns and Money” (Summer 2007), I write to suggest that the meaning of the Second Amendment can best be determined by carefully reading the words the framers used in drafting the Constitution. The framers considered carefully the structure of government they were creating and chose with care words they believed best expressed their intent. It therefore is essential that their words be read with the same thoughtful attention with which they were written.
The preamble to the Constitution recites that the people ordained and established the Constitution; the first three articles define the powers the people delegated to the national government and create institutions for their exercise; and the 10th Amendment says that all powers not delegated to the United States, or prohibited to the states, are reserved for the states or the people. Thus, in discussing government, the framers spoke exclusively in terms of power—its delegation, its vesting, its exercise and its limitations.
The Bill of Rights, on the other hand, speaks exclusively of rights. The First, Second, Fourth, Sixth and Seventh Amendments enumerate particular rights retained by the people: to assemble and petition, be secure against unreasonable searches and seizures, enjoy the right of trial by jury, keep and bear arms, etc.; the Third, Fifth and Eighth protect certain individual rights against abuse by government of its delegated powers; and the Ninth provides that the enumeration of these rights shall not be construed to deny or disparage others retained by the people. Each of these rights is retained by, not granted to, the people. Each is protected against denial, disparagement or infringement by government, not derived from government. Each is personal, not communal or collective.
This use of language is both clear and purposeful. People have rights; government has only powers. The people define and delimit the powers of government; government does not define and delimit the rights of the people. Rights cannot be restricted by governmental action except as required for the exercise of a delegated power.
Read in its proper context, the meaning of the Second Amendment becomes clear. It simply acknowledges the right of the people to keep and bear arms and the power of the states to maintain militias. The amendment does not grant the right to keep and bear arms; it simply enumerates that right as one among the many retained by the people. Nor does it empower states to maintain militias; it simply implies that the power is not denied.
The fact that the amendment refers to both a right retained by the people and a power presumably held by state government does not transfer the right from the people to the state or make the people’s exercise of the right dependent on the state’s exercise of its power. Nor does the state’s exercise of its militia power depend on the people’s exercise of their right to keep and bear arms. The right and the power remain separate and distinct—the right is reserved to the people; the power is assumed to be exercised by the state.
It therefore follows that the right the amendment reserves to the people is—like all the other rights reserved in the Bill of Rights—an individual right, not a right of the state; that the right is separate from the militia power that the amendment presumes each state will have and will exercise; and that the right cannot be limited by or made dependent on the state’s exercise of the militia power.