Regarding the Preamble of the Second Amendment

Phil Lee, 10/30/2008

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Anti-gun advocates have tried (and continue to try) to sell the notion that the preamble to the Second Amendment to the US Constitution limits the freedom guaranteed there. Let's examine Cardinal Rules of Legal Interpretation, By Edward Beal, London, 1908 on P 253 in connection with the Second Amendment:

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.

The Second Amendment has a preamble (here bolded) and an enacting part (the rest of the Amendment). On page 253 Beal writes:

Preamble
Defined

A preamble of a statute is a recital of some inconveniences for which a remedy is given.

"There was a time when statutes were made without preambles; and the preamble of a statute is no more than a recital of some inconveniences, which does not exclude any other, for which a remedy is given by the enacting part of the statute." -- 7 Bac. Abr. Statute (I.)2.

Enacting Part and Preamble.

The preamble may sometimes be usefully looked at as a guide to ascertain the subject-matter, scope and object of the statute.

Where the enacting part is clear and unambiguous, the preamble cannot be resorted to to control, cut down or restrict it.

Where the enacting part is ambiguous, the preamble can be resorted to explain it.

According to Beal, for the preamble of the 2nd Amendment to affect the meaning of the Amendment, the enacting part would have to be other than clear and unambiguous. The enacting part of this amendment seems pretty clear and unambiguous to me.

Now, before anyone asserts the date of this work by Beal as not reflecting the rules of 1789 when the US Constitution was drafted, Beal's reference "7 Bac. Abr. Statute (I.)2." refers to Bacon's Abridgment (A New Abridgment of the Law, By Matthew Bacon, London, Brown, Worrall, Schuckburgh, 1762) That is, Beal is taking his legal interpretation from a similar legal work dated 27 years before the US Constitution was offered for adoption.

So, . . . , the interpretation of the Second Amendment according to the rules of legal interpretation of preambles for English law between 1762 and 1908 when Beal was published are all the same. According to that interpretation, the actual meaning of the Second Amendment is the same as if it was written: The right of the people to keep and bear Arms shall not be infringed.

The US Supreme Court Heller decision makes the same point about the effect of the preamble, but uses more scholarship to support that point.

Updated by Phil Lee on 9/10/10. Contact maryland_alert at yahoo dot com (sorry for being obscure, but web mail address scavenge programs make this practice necessary).