by Charles R. Mosteller

The Second Amendment states, “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.”

Where the question of interpreting whether the right to keep and bear arms is a substantive personal right or a collective right is concerned, judicial canons of construction and interpretation cannot simply be dismissed summarily out-of-hand.

It is a canon of interpretation that real effect should be given to all the words of the Constitution (Myers v. United States – 1926). Thus, the Second Amendment cannot be properly read to mean that its words are without effect and mean nothing.

A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. (Perrin v. United States – 1979). Therefore, the words “right of the people to keep and bear arms,” as used in the Second Amendment, cannot be properly read to mean that the militia, and not the people, possesses the right to keep and bear arms.

The Militia Clauses (Article I, Section 8, Clauses 15 & 16) of the Constitution empowered Congress to “provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States.” As such power to arm the militia was conferred upon Congress by the organic document of the Constitution, no amendment was then necessary for the militia to be armed. If the power to arm the militia implies any “power to disarm” at all, then such would imply a power to disarm the militia, and not a power to disarm the people. Additionally, the Second Amendment declares that the militia is “necessary,” not optional, and not just to any type of State, but to a “free” State.

A distinction exists between the “organized” militia, and the “unorganized” militia (U.S. Code – Title 10, Chapter 13, Section 311). Thus, the National Guard is but one component of the total militia. To disarm all senior citizens, every male citizen 45 years of age or older, and all female citizens who are not a part of the National Guard, simply because they are not part of the militia, would amount to a repeal of the right to keep and bear arms by mere implication. Repeals by implication are disfavored. Furthermore, constitutional provisions cannot be repealed by statutes; they can only be repealed by changing the constitution, and such an undertaking requires a constitutional convention and ratification of proposed changes by a 2/3 majority of the states.

The states existed before the Constitution, and, consequently, their legislative powers antedated the Constitution (Carter v. Carter Coal Co. – 1936). The power of States to arm and equip their respective militias and police forces is not derived from the Constitution, but from the police power of the State, which preceded constitutions and legislative enactments.

The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself. Federalism secures to citizens the liberties that derive from the diffusion of sovereign power (New York v. United States – 1992).

“The people” seems to have been a term of art employed in select parts of the Constitution (United States v. Verdugo-Urquidez – 1990). Thus, the words “people” and “State” are not interchangeable-at-will when interpreting the Second Amendment, for they each possess distinct identity and meaning.

No mere exercise of the art of lexicography can alter the essential nature of an act or a thing (United States v. La Franca – 1931). Therefore, a mere “play on words” cannot be resorted to, in order to effect an eerie talismanic transmutation of the right of the “people” to keep and bear arms into a right of the “militia.”

The Supreme Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment (Printz v. United States – 1997)(Justice Thomas, concurring). Therefore, the question of the selective Incorporation Doctrine’s application to the Second Amendment continues to evade adjudication by the High Court.

The only modern Second Amendment case from the Supreme Court is United States v. Miller – 1939 (United States v. Emerson – 1999)(U.S. District Judge Sam Cummins). Miller focused not upon whether the right to keep and bear arms was a personal, as distinguished from a collective, right, but on whether a particular type of weapon had a perceived militia use at the time of issuance of that opinion by the Supreme Court.

The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence (United States v. Cruikshank – 1875). The basic right to keep and bear arms is properly termed a pre-existing right, one which is fundamental to – and implicit in – the very concept of ordered liberty upon which our constitutional system was founded!

The power to arm a militia is a distinctly different thing from the power to disarm the people in their capacity as individual citizens!

Charles R. Mosteller
P.O. Box 181
Tigerville, South Carolina
29688
CharlesMosteller@aol.com 

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