Spencer Finley – Staff Writer
SJF5814@psu.edu

In my last article, I focused on the history of firearm ownership in the colonial period; however,
I excluded several key points, even on that topic, and only very briefly touched on several
others. By the conclusion of this article, I hope to tie up several of those loose ends.
First, the question of hunting weapons exists. As I mentioned in my previous article, people
were required to buy firearms for military service. However, I also mentioned that hunting
weapons were quite prevalent. This would seem to justify claims that there is, in fact, an
individual right to firearm ownership. However, there are three main reasons that I believe that
it does not justify an individual right to firearm ownership. The first is that there were, in fact,
regulations on who could own firearms, including hunting rifles. Laws passed in England in the
1670s restricted firearm ownership solely to noble protestants, which hardly seems like it
implies an individual right at all; further, Parliament passed legislation restricting who could
hunt and where they could hunt, furthering the notion that individual firearm rights were far
from universal. The second is that the variety of weapons which would be used by individuals
for use in militia service have already been greatly restricted. Machine guns, the weapons that
resemble the framers’ idea of the well-regulated militia, have already been heavily regulated;
no new fully-automatic weapons are allowed to be manufactured for civilian use, and one
needs a Class III weapons permit to own a weapon. The weapons in question- that is, assault
weapons- are simply made to look like military weapons, but lack their most significant
function. If the framers wanted to ensure the survival of a citizen’s militia, and the intent of the
framers is very significant to the interpretation of the Second Amendment, fully automatic
weapons would be far easier to acquire. The third is a more practical than legal reason. The
United States is undeniably hurt by our epidemic of gun violence. Not only does it result in a
massive loss of lives at home, but it contributes to a degradation of our image abroad- the
quantity of mass shootings makes us look weak and our unwillingness to solve the crisis of gun
violence, despite the exceedingly obvious solution, makes us look backwards and boorish.
The second question, one that I left entirely unaddressed, is the wording of the amendment
itself. The Second Amendment in its entirety reads “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.” There are two parts of the amendment- the prefatory and the operative clauses. The
individual right has largely been gleaned from the operative clause, with little attention being
paid to the prefatory. What little attention was paid to the prefatory clause would generally
seem to support the idea of a collective-right interpretation.
“The Antifederalists feared that the Federal Government would disarm the people in order to
disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The
response was to deny Congress power to abridge the ancient right of individuals to keep and
bear arms, so that the ideal of a citizens’ militia would be preserved.”
This portion of the Heller decision is essentially accurate in its general idea- it clearly states that
those who would have been pushing for Constitutional amendments in the 1790s would have
been thinking about the militia when they were thinking of the right to bear arms. If it is
acknowledged that the Prefatory Clause informs us of the intent of the amendment, as is so
plainly acknowledged in DC v. Heller, then it must be so that the Second Amendment applies to
firearm ownership in connection with service in the militia. The opinion in DC v. Heller further states that “The Amendment’s prefatory clause announces a purpose, but does not limit or
expand the scope of the second part, the operative clause. The operative clause’s text and
history demonstrate that it connotes an individual right to keep and bear arms.” However,
stating a purpose would limit the scope of the operative clause. If you were to give me the keys
of your house with the explicit provision that it was to water your plant, would that then give
me the right to invite my friends over for the purpose of throwing a large party?
Let us then consider the discussion of militia that was so prevalent at the time. The militia was
thought to be useful to defend the rights of the people from a tyrannical government. The
militia was to be useful because it would render a standing army unnecessary, which was
significant because standing armies were thought to be instruments of tyrants. We must
further consider the role of the Senate, which was made up largely of Federalists who thought
the whole business of a Bill of Rights to be superfluous and perhaps even wrong. Many
Senators had been involved in drafting the Constitution and intended to pass Amendments that
would have as little impact on the Original Text as possible, and making a small concession on
behalf of the militia seemed like a great way to score cheap political points while actually
modifying the text very little.