The Second Amendment Protects Gun Ownership...and Gun Regulation

Since this issue is bound to be deranged to the point of imbecility in the coming "debate" about gun control [ see this unreasonable "Reason" content ], I thought it would be fruitful to establish up front what informed citizens should expect of their right to bear arms, which to wit:

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.

That the 2A itself is incorporated in terms of national self-defense is obvious, what is apparently less obvious to modern audiences is that the "right of the people" which is subordinated to necessary upkeep of militia, is not a newly invented right being outlined by the 2A itself. Rather, it refers to existing rights held by Americans, making the question of the context of the right ( that is, in terms of militia and national defense ) moot.

So the question of regulation is not appropriately derived from military service, but from pre-existing laws. There are two major forms of these laws: the first and oldest is English Common Law, of which all Americans were and are inheritors, and the second ( and which was premised on the former ) is state constitutional law, as written at the time of the adoption of the Amendment.

As to the former, while the foundation of our present laws was laid by Common Law, it was not itself nearly so well formalized and, being subject to change through context and interpretation, was encoded in official law in different ways by different states. Nevertheless by the Colonial era the right of citizens to own firearms was well established, if not always equally applied - neither slaves nor minors, for example, nor "habitual drunkards" could own or carry weapons or types of weapons [ 1 ]. And among those legally entitled to own firearms there were general prohibitions against types and consequences [ 2 ]:

In some cases, there may be affray, where there is no actual violence; as when a man arms himself with dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.

Pistols were a primary target of prohibition, as well as concealed weapons, and even Thomas Jefferson was concerned about citizens carrying shotguns off the farm ( IIRC - I need to find the letter Jefferson described his concerns in ). So by the Revolutionary era, state constitutions both declared the ownership and use of firearms to be an inalienable right, and also prohibited concealed carry in some cases or banned types of firearms outright. It is objectively the case, then - with actual state constitutions being the objective proof - that the premise of inalienable right to self defense, a well regulated militia, and various forms of "gun control" are not contrary to the 2A, but are legally mandated by it.

The idea maintained by certain factions in the US today that the 2A bars any regulation is founded on an ahistorical, ungrammatical reading of its text. Ahistorical for the reasons listed, and ungrammatical not only because "the right of the people" is erroneously read by them as a new, rather than existing, right ( which is easily discernible by reading Madison's comments on it ), but also because "shall not be infringed" is read as a general rule meaning "shall not be limited". This is not the case. Rather the meaning of infringement, as understood by seventeenth and eighteenth century audiences, was a violation, as of a contract or promise.

Hence the language here cannot be read as a bar against limitation, which would in any case present an outright contradiction against the need for a "well regulated militia", but rather as enforcing the contemporary rights held informally ( as in common law ) or formally ( as in state constitutional law ). These rights are federalized and, as the Constitution was then written, the 2A barred federal laws from violating those prior rights.

The tendency on other factions of the American public to repudiate the ownership of guns entirely as unconstitutionally is so manifestly stupid that I won't bother to defend it here - I would rather just cite Scalia's majority decision in the Heller case, and the controversy at the time over an Emory University professor's fraudulent book denying firearms were commonly owned by colonial Americans.

Rather in today's fractious politics, it's far more important to point out that those proposing to defend the 2A against supposedly unconstitutional restrictions against AR-15s or assault weapons generally are objectively opposed to the actual 2A, and therefore to the protection of our rights outlined in it.

[ 1 ] FIREARM REGULATION, John Brabner-Smith, p. 404

[ 2 ] THE COMMON LAW AND THE RIGHT OF THE PEOPLE TO BEAR ARMS: CARRYING FIREARMS AT THE FOUNDING AND IN THE EARLY REPUBLIC, Stephen P. Halbrook, p. 51