2A per a Vermont Lawyer
Below is the response of a Vermont lawyer to a post on a Vermont bulletin
board, in which another writer had related reservations about the Second
Amendment being directed more towards a collective right and not an
individual right. His response is lawyerly, but very strongly in support of
citizen rights. Evan
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The introductory phrase to the 2nd Amendment is not “superfluous” in the sense
that it has no meaning. Clearly the “meaning” was to introduce the legal
principle
and underscore how important the right of the people to keep and bear arms
is. Obviously the founders considered the right of “the people” to be armed as
extraordinarily important to make it the second amendment, second only to the
first amendment since, based on their particular experience as
revolutionaries,
they realized that the power of the written word and the power of the people
to assemble was the first and most important step of the Revolutionary effort.
First the people had to be won over by intellectual argument before they could
go on to the next stage and actually take up arms.
However the introducing phrase of the Second Amendment is merely that, an
Introduction and does not have any limiting effect upon the legal principle
stated, namely “the right of the people to keep and bear arms shall not be
infringed.” It is well settled in Case Law interpreting the meaning of
legislation that the word “shall” is highly significant in that “shall” means
a proactive mandate, i.e. nondescretionary.
Note that the introducing phraseology does not mandate a specific limited
purpose.
It does not say “The right of the people to keep and bear arms for the
purpose of forming a militia shall not be infringed.” In legal analysis, the
opening phrase would considered “Dictum”, i.e. “…an observation concerning
some rule, principle, or application of law… not necessarily involved in
the case or essential for its determination; any statement of the law
enunciated by the court merely by way of illustration, argument, analogy, or
suggestion (but not determinative of the actual principle of law stated.)
Blacks Law Dictionary, 12th Edition.
The Founders, many who were the leading lawyers of the day were certainly
quite familiar with Legal Dictum, especially useful in a legal / political
document
such as the Constitution.
If the First Amendment stated: “The right of the people to speak at public
meetings
and write freely about public meetings being necessary for the preservation
of a free
state, Congress shall pass no laws abridging freedom of speech or of the
press,” I
doubt many serious people would argue that the freedom of speech or press is
restricted to only that speech and publication that relates to “public
meetings.”
Rather then being a “qualifier” the introductory phrase to the 2nd Amendment
is
an “acknowledgment” as to how important that right of the people to keep and
bear
arms is since it relates to the very preservation, i.e. “security” of a “free
state.”
At least from the perspective of objective legal analysis, the introductory
phrase
cannot be interpreted as a restriction upon the general right of the people.
Of course
political panderers and obfuscators will claim and say whatever they can
get away with ….and be supported by those who wish to rationalize away any
reasonable application of basic logic in order to justify their own fears and
personal
beliefs. Unfortunately, the Founders, brilliant as they were, could not
protect us
from Sophists and blatant mendacity.
Thanks,
Fred