Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America
UCLA Law Review, Vol. 56, No. 1295, 2009
Washington University in St. Louis Legal Studies Research Paper No. 12-05-26
49 Pages Posted: 14 Jun 2012
Date Written: June 14, 2012
Abstract
This article seeks to apply careful analysis to the preamble of the Second Amendment, sensitive to the linguistic usages of the time and to the historical context of the prevailing political culture. This approach does not entirely reject Justice Scalia’s announced method of giving an original meaning to the amendment as understood by the public in 1791. This article, however, includes an analysis of post-ratification meaning in order to contrast nineteenth-century sources with the more proper object of analysis, that of the eighteenth century.
Part I of the article revisits the emergence of original public meaning jurisprudence. Part II examines the ways that the American public between 1776 and 1800 struggled to use the language of written law to articulate what it meant in establishing republican government. Part III looks at the constitutional mechanisms created to give meaning to the American public’s ideas on the restraint of power, especially the many nonjudicial mechanisms, including the “well regulated militia,” that mobilized or enlisted public participation in checking arbitrary government. Part IV turns to the use of preambles in the new state constitutions and in the Second Amendment, showing the preamble to the Second Amendment to be inseparable from “the right of the people to keep and bear Arms” and narrowing its meaning to service in state constituted militias. A brief final concluding section sees the 1790s as a liminal decade in American constitutionalism — one in which ideas were being overtaken by political changes occurring so fast that the political community had trouble recognizing the powerful historical forces that the community itself was propelling. Within a generation, a new political culture gave rise to a public understanding of an individual right to keep and bear arms that overtook the “original public meaning” of a collective right and buried what the “public” actually had meant when it ratified the amendment in 1791. What the clear articulation of that right meant in 1830, therefore, illuminates what it did not mean in 1791.
Keywords: Second Amendment, originalism, living constitutionalism, preambles, legal history
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