The phrase "the right of the people" means the same thing
in the Second Amendment as it does in the First and Fourth Amendments.
The U.S. Constitution recognizes and protects, but does not_grant,_
the pre-existing right of individuals to keep and bear arms. This
is because the Framers assumed that the basis of governmental power
originates with the people, whose natural rights are either ceded to
government in the form of governmental powers, specifically protected
from the powers of government by listing them in the Bill of Rights,
or retained by the people, according to the Ninth Amendment.
The history of the drafting of the Second Amendment also makes clear
that "the right of the people" means a civil right belonging to each
individual citizen. The first proposed draft of the amendment as
written by James Madison reads:
"The right of the people to keep and bear arms shall not
be infringed; a well armed and well regulated militia
being the best security of a free country; but no person
religiously scrupulous of bearing arms shall be compelled
to render military service in person."
In addition to clarifying that the Second Amendment has nothing
to do with guns owned for "sporting purposes" like hunting (see
Gun Control Act of 1968, Appendix I.), this earlier draft clearly
illustrates that the "person" whose religious scruples require that
he_not_"bear arms" would not be compelled to do so by the Congress,
and that the "person" referred to in the text is an individual, and
not a group.
This version of the Second Amendment also closely reflects the spirit
of the First Amendment's clauses dealing with religious freedom, in that
the Congress should have no power to prohibit the keeping and bearing of
arms, but neither should it have the power to compel those persons we
would today call "conscientious objectors" to do so. It's unlikely that
Madison intended this earlier draft of the Second Amendment to prohibit
the Congress only from calling up all the Quakers and other pacifists
_en_masse_as a militia, but rather that each individual would respond
to the nation's call as their individual consciences dictated, and that
they would "keep and bear" their private weapons to that end. Indeed,
the Militia Act passed by the Second Congress in 1792 did require
exactly that, and such a requirement was in force for well over 100
years (see 2.0). This is not to say that the right to keep and bear
arms is dependent upon the existence of an organized militia, or
that_only_military weapons are constitutionally protected, since, as
with the other enumerated rights found in the Constitution, the right
is assumed by the Framers to be pre-existing. Just because the right
to "peaceably assemble" is protected by the First Amendment explicitly
for the political purpose of petitioning the government "for redress of
grievances", this does not mean that_only_political speech and political
gatherings are constitutionally protected. The authors of the Bill of
Rights explicitly rejected any such narrow construction of the rights
of the people, by means of the Ninth Amendment. The Senate, in revising
Madison's proposal, rejected adding the words "for the common defence"
to the amendment by a vote on September 9th, 1789; clearly implying
that the right intended to be protected in the Second Amendment is a
right to bear arms broader than simply for militia service. The Bill
of Rights is about limiting the power of government, not the freedoms
enjoyed and exercised by We the People, and consequently it should not
be subject to such a narrow interpretation in any of its provisions.
The Bill of Rights sets forth the_minimum_standards which its authors
felt define a "free state". Ironically, Madison's "religious scruples"
clause was deleted because of fear that the government could misuse
those words to disarm whomever_it_defined as "religiously scrupulous".
The often-heard phrase "states' rights" is likewise the basis of
some confusion in arguments about constitutional issues, because
states don't have_"rights"_under the American Constitution, they have
delegated_"powers,"_ and the Ninth and Tenth Amendments_clearly_
distinguish between "powers" and "rights". Governments, whether state
or federal, don't have "rights". They have_only_such powers as are
granted to them under the law. This is a very crucial distinction in
American law, and one which is the basis for every just government.
Once a government claims the "right" to do_anything,_asserting the sort
of natural rights which belong only to individuals, we have returned to
an era of the "divine right" of kings.
In American law, the idea of a "collective" right (a right belonging
to everyone - but to no one in particular) has no place. It was by just
such an idea of "collective" rights that the constitutional guarantees
of rights enumerated in the Soviet Constitution were deprived of all
practical effect. "The people" owned all the printing presses, and
could publish whatever "the people" wanted, but if anyone dared to
exercise their individual right to free expression, they might be shot,
sent to the Gulag, or to the mental hospital for "rehabilitation."
Interpreting the phrase "the right of the people" to mean a "collective"
right in the Second Amendment places the First Amendment (and the
Fourth Amendment) in peril of similar "re-interpretation". Does the
First Amendment guarantee of assembly apply only to state legislatures?
At the most basic level, the arguments for censorship under the
First Amendment and the arguments for "gun control" under the Second
are the same. Both involve prior restraint on liberty (see 3.0), and
both rest on a paternalistic assumption that the general public cannot
be trusted to exercise their liberty wisely. Underlying both is the
implication that there are certain officials of the state, censors in
the case of the First Amendment, and the police and military in the
case of the Second, who may exercise the liberties which are denied
to the people (watching and reading what is otherwise forbidden, or
carrying arms in defense of themselves and other citizens) and who can
be trusted not to abuse that power, or be corrupted by it, in ways which
their fellow citizens (mere mortals that they are) cannot. In effect
and in fact, to defend censorship, or to defend "gun control," is to
assert that there ought to be some citizens who are "more free" than
others, and that second-class citizenship for all but a select few is
permissible. Such elitism, obviously, has no place among those who
value equality before the law as a political ideal, or as the first
proposition of the American republic.