Following the recent school shooting in Connecticut, American citizens have once again displayed their total ignorance concerning the Constitution, the Bill of Rights, and the Second Amendment. Facebook postings, comments to so-called news articles and letters to the editor are calling for repeal of the Second Amendment. These individuals believe the right to own a firearm is based on the Second Amendment and the right will vanish if the Amendment can be repealed. Unless the Second Amendment created the right, then repeal of the Amendment cannot constitutionally abolish the right.
Following the Federal [Constitutional] Convention of 1787 and the subsequent ratification of the Constitution in 1788, the several States began submitting amendments to Congress for consideration. By September of 1789, Congress had reduced approximately 210 separate amendments to 12. The amendments were inserted into a congressional resolution and submitted to the several States for consideration. Of these, numbers 2-12 were ratified by the States in 1791 and became the so-called Bill of Rights.
A little known fact about this resolution is that it contained a preamble declaring the purpose of the proposed amendments. Most modern editions of the Bill of Rights either do not contain the preamble or only include the last paragraph. The most important paragraph is the first one because it discloses the intent of the proposed amendments.
A review of this paragraph shows that the sole purpose of the proposed amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being proposed. The amendments, if adopted, would place additional restraints or limitations on the powers of the federal government to prevent that government from usurping its constitutional powers. Every clause of the Bill of Rights, without exception, is either a declaratory statement or a restrictive provision.
If the Bill of Rights had granted rights, then the word “granted” would have to appear each and every time a right was being established. A review of the Bill of Rights shows that the word “granted” does not appear in any Amendment.
In reality, the Bill of Rights placed additional or secondary restraints on the powers of the federal government concerning the rights of the people and powers reserved to the States. That is why the words “no,” “not” and “nor” appear throughout the Amendments instead of the word “granted.”
Since the Second Amendment did not create or grant any right concerning firearms, the right enumerated in the Amendment has to be an existing right separate from the Amendment. Thus, repealing the Second Amendment would not eliminate any right because the right enumerated in the Amendment was not created by the Amendment. The right to keep and bear arms exists independent of the Constitution or the Second Amendment.
In order to help explain this constitutional principle, I reluctantly decided to reference a United States Supreme Court case from 1875. Normally, I would not cite a court case to support a constitutional principle because too many opinions do not reflect the true intent of the Framers. However, I decided to make an exception because this decision states this constitutional principle clearly and concisely and has never been overturned.
In the case of United States v Cruikshank, the United States Supreme Court held that the rights enumerated in the Bill of Rights were not granted by the Amendments and are not dependent upon the Constitution for their existence. The Court also ruled that the Amendments were restraints on the powers of the federal government and it is the duty of States to secure the individual rights of the American people.
One of the most definitive and succinct interpretations of the Second Amendment is found in the Court’s second holding:
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed: but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National [Federal] Government…”
The Second Amendment did not create or grant any right to keep and bear arms. It placed an additional restraint on the powers of the federal government concerning the existing right to keep and bear arms. Thus, all a repeal could do, from a federal standpoint, is remove the secondary restraint imposed on federal power by the Amendment. And since many States have a right to keep and bear arms clause in their constitution, separate and apart from the Federal Constitution or the Second Amendment, the existence or non-existence of the Second Amendment would not affect the right because the federal government was not granted and does not have the general power to abolish a natural or individual right secured by a State Constitution.
Note: There is a school of thought that the Fourteenth Amendment made, through a doctrine known as incorporation, the Second Amendment applicable to the individual States. Since the Second Amendment did not create a right, then repeal of the Amendment could not abolish the right in the individual States through the Fourteenth Amendment.