How the Second Amendment Right To Bear Arms Affects the Local Police Power to Regulate Firearms

An Analysis of the Second Amendment | old site-

So what can we expect from the Supreme Court? Early in the Bush administration, the Department of Justice issued an extensive legal analysis supporting the gun-rights view of the Second Amendment. It has adhered to that position in the D.C. case but with an important twist. Suppose the Second Amendment does protect an individual right. Still, like all rights, that right can be regulated by the government for good reasons — as the Amendment's reference to a “well regulated” militia itself suggests. In the First Amendment setting, we let the government regulate speech only if it has extremely good reasons for the regulation.

The Second Amendment Was Ratified to Preserve Slavery

Gun-rights advocates have a different view. Their strongest point is that the Bill of Rights is a bill of individual rights. They argue that the Second Amendment's preamble explains why we have an individual right to keep and bear arms. And the “militia” mentioned in the preamble, in this view, is not the state-organized militia but rather what 18th-century thinkers described as the unorganized militia, the whole body of the people who, if armed, would be able to resist efforts by an oppressive government or to provide self-protection when the government failed in its duty to protect against predators and criminals.

In fact, interpreting the Second Amendment is a genuinely difficult task, precisely because we have to determine the relation between the first clause, sometimes called the Amendment's preamble, and the second, sometimes called its operative clause. The preamble could be a condition, limiting the scope of the operative clause, or it could merely be an explanation: “The reason people have an individual right to keep and bear arms is that it makes it easier to provide a militia as the security to a free state.” (In the case of there's some basically silly discussion of whether the Second Amendment even applies to the District, since it isn't a “state.” It's quite clear that the term in the Second Amendment refers to organized governments and not to the narrower group of subnational units we call the states of the United States.)