Last Updated on August 20, 2022 by Constitutional Militia
Bill of Rights: “further declaratory and restrictive clauses”
Were close attention paid to what the original Constitution actually provided, the Second Amendment would be recognized as something of a redundancy. The Second Amendment is one of the ten “further declaratory and restrictive clauses” that, compiled in the Bill of Rights, were “added” to the original Constitution “in order to prevent misconstruction or abuse of its [then existing] powers”. When Alexander Hamilton wrote that the original “Constitution [wa]s itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS” as to the General Government, he understated the matter, because the Constitution embodied “A BILL OF RIGHTS” as to the States, too. This was self-evident with respect to those provisions that explicitly prohibited the States from exercising certain powers or engaging in certain activities, which the Supreme Court early on described as “a bill of rights for the people of each state”. But it should also have been obvious with respect to the States’ powers that concerned the Militia.
The very purpose of the Second Amendment proved Hamilton correct. Primarily, the Amendment aimed at preventing “misconstruction * * * of [the original Constitution’s] powers”—that is, the “[w]rong interpretation of [its] words”. Not at detracting from exorbitant powers that had been carelessly delegated to the General Government, but instead at ensuring that no error would occur in the application of the already properly limited powers that had been delegated. So, what the Amendment meant, the original Constitution meant as well. But because the original Constitution could and should have been construed consistently with the meaning of the Second Amendment in the first place, with the Amendment thereafter serving at the most as a mere guide to and confirmation of that construction, then the original Constitution could and should have been so correctly interpreted and applied even before the Amendment’s ratification, and even thereafter without the Amendment’s aid.
On the face of the original Constitution, Congress’s power “[t]o provide for organizing arming, and disciplining, the Militia,” referred to “the Militia of the several States” as they existed in 1788. A basic principle of “the Militia” in 1788, and for generations theretofore, was that everyone eligible for the Militia was to be “organized” in some manner, even those who might have qualified for exemptions from certain Militia duties. And because of the nature of the three purposes for which the Militia might have been “call[ed] forth” “in the Service of the United States”—especially “repel[ling] Invasions” which might have threatened the very survival of the entire Union—under the original Constitution Congress should have “provide[d] for organizing, arming, and disciplining” everyone eligible for “the Militia” in some appropriate manner. That is, “the Militia” should have been composed of “the body of the people” as a whole. Therefore, by definition, Congress’s power “[t]o provide for organizing * * * the Militia” excluded any license to decide, in some invidiously discriminatory fashion, who would or would not compose “the Militia”. In the guise of “organizing * * * the Militia”, Congress could not have jury rigged a “select militia”, with everyone else consigned to an “unorganized militia”(or to no “militia” at all)—whether the Second Amendment had existed or not.