C. "A Well Regulated Militia, being Necessary to the Security of a Free State"
A feature of the Second Amendment that distinguishes it from the other rights that the Bill of Rights secures is its prefatory subordinate clause, declaring: "A well regulated Militia, being necessary to the security of a free State, . . . ." Advocates of the collective-right and quasi-collective-right interpretations rely on this declaration, particularly its reference to a well-regulated militia. On their interpretation, the "people" to which the Second Amendment refers is only the "people" in a collective, organized capacity as the state governments, or a small subset of the "people" actively organized by those governments into military bodies. "People" becomes interchangeable with the "State" or its "organized militia."
This argument misunderstands the proper role of such prefatory declarations in interpreting the operative language of a provision. A preface can illuminate operative language but is ultimately subordinate to it and cannot restrict it.
Wholly apart from this interpretive principle, this argument also rests on an incomplete understanding of the preface's language. Although the Amendment's prefatory clause, standing alone, might suggest a collective or possibly quasi-collective right to a modern reader, when its words are read as they were understood at the Founding, the preface is fully consistent with the individual right that the Amendment's operative language sets out. The "Militia" as understood at the Founding was not a select group such as the National Guard of today. It consisted of all able-bodied male citizens. The Second Amendment's preface identifies as a justification for the individual right that a necessary condition for an effective citizen militia, and for the "free State" that it helps to secure, is a citizenry that is privately armed and able to use its private arms.
1. The Limits of Prefatory Language.
In the eighteenth century, the proper approach to interpreting a substantive or "operative" legal provision to which a lawmaker had joined a declaration (whether a "Whereas" clause or analogous language) was (1) to seek to interpret the operative provision on its own, and (2) then to look to the declaration only to clarify any ambiguity remaining in the operative provision. (69) It was desirable, if consistent with the operative text, to interpret the operative provision so that it generally fulfilled the justification that the preface declared, but a narrow declaration provided no warrant for restricting the operative text, and the preface could not itself create an ambiguity. This rule applied equally to declarations located in any part of a law, not simply at the beginning of it, and to both statutes and constitutions. We therefore consider this rule applicable to the Second Amendment.
English Parliaments of the 1700's and late 1600's regularly included prefaces throughout statutes - not only at the beginning (constituting the first section) but also in particular sections. (70) The same rule of interpretation applied to both uses of prefaces. As an example of the latter, a section of a bankruptcy statute recited the problem of persons who "convey their goods to other men upon good consideration" before becoming bankrupt, yet continue to act as owners of the goods; the immediately following clause of the statute provided that if a bankrupt debtor possessed "any goods or chattels" with "the consent and permission of the true owner," was their reputed owner, and disposed of them as an owner, such property should repay the debtor's debts rather than return to the true owner. The difficulty arose when the bankrupt debtor possessed property that never had been his, such as property in trust. A leading case in 1716 read the enacting language to apply even in such cases and rejected the argument "that the preamble shall restrain the operation of the enacting clause; and that, because the preamble is too narrow or defective, therefore the enacting clause, which has general words, shall be restrained from its full latitude, and from doing that good which the words would otherwise, and of themselves, import." (71) The King's Bench reiterated the rule in 1723, rejecting in a criminal case an argument based on declaratory language introducing part of a statute: "Now those general words in the enacting part, shall never be restrained by any words introducing that part; for it is no rule in the exposition of statutes to confine the general words of the enacting part to any particular words either introducing it, or to any such words even in the preamble itself." The court acknowledged that "a construction which agrees with the preamble" was desirable, "but not such as may confine the enacting part to it." (72)
Blackstone summed up this understanding in explaining that, although the words of an enacting clause were "generally to be understood in their usual and most known signification," yet if its words, after due analysis, were "still dubious" or "ambiguous, equivocal, or intricate," one might look to the context, which included "the proeme, or preamble, [which] is often called in to help the construction of an act of parliament." (73) Chancellor Kent, a leading early American commentator, likewise reasoned that a preamble, although not technically part of the law, "may, at times, aid in the construction of" a statute or "be resorted to in order to ascertain the inducements to the making" of it, "but when the words of the enacting clause are clear and positive, recourse must not be had to the preamble." (74)
Prefatory language also was common in constitutions, and this rule of construction applied in the same way. Speaking of the preamble of the whole federal Constitution, Joseph Story in his Commentaries reiterated that statutory preambles are "properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation," and he could not see "any reason why, in a fundamental law or constitution of government," the same rule should not apply. (75) Similarly, the Supreme Court has held that the Constitution's preamble lacks any operative legal effect and that, even though it states the Constitution's "general purposes," it cannot be used to conjure a "spirit" of the document to confound clear operative language; (76) the Court has, however, also sought some guidance from the preamble when the operative text did not resolve a question. (77)
The same reasoning applied to declaratory phrases in the language of individual constitutional provisions, the closest analogies to the Second Amendment. The 1784 New Hampshire Constitution provided: "In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed." (78) Even though in some cases a trial outside of the county where a crime was committed might bring it closer to the crime scene, or a judge might think a trial in the county where the crime occurred not "essential to" (or even in conflict with) "the security of the life, liberty and estate of the citizen," neither fact would justify disregarding the clear operative language of this constitutional provision. (79) Likewise, the pre-1787 constitutions of Massachusetts, New Hampshire, and Vermont declared that freedom of speech in the legislature was "so essential to the rights of the people" that words spoken there could not the basis of "any" suit. (80) One could not use this declaration to avoid the clear immunity conferred by the operative language, even where particular statements made in the legislature - such as an egregious slander unrelated to a pending bill - were not thought "essential to" the people's rights. (81) In addition, Madison's draft of what became the First Amendment's Free Press Clause read: "the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." (82) The emphasized declaratory language presumably could not have qualified or limited the freedom clearly conferred, such as by exempting from protection, as hostile to "liberty," publications advocating absolute monarchy.
A discussion at the Constitutional Convention demonstrates the same understanding, including that prefaces in a particular constitutional provision might merely state policy. What would become Article I, Section 8, Clause 16 of the Constitution, empowering Congress to "provide for organizing, arming, and disciplining the Militia," had reached its final form. But George Mason proposed "to preface" it with the phrase, "And that the liberties of the people may be better secured against the danger of standing armies in time of peace." He wished "to insert something pointing out and guarding against the danger of" standing armies. Madison spoke in favor, because the preface would "discountenance" a peacetime standing army while "not restrain[ing] Congress from establishing" one. (83) No doubt an organized, armed, and disciplined militia would generally "better secure" liberties against peace-time standing armies (by reducing the need for such armies and the threat from any that were created), and thus the operative grant of power "agree[d] with" the declaratory preface; (84) but the preface did not restrain or confine the power.
We see no reason to except the Second Amendment from this broadly applicable interpretive rule. (85) Thus, the Amendment's declaratory preface could not overcome the unambiguously individual "right of the people to keep and bear Arms" conferred by the operative text - even if the collective-right and quasi-collective-right schools' understanding of the preface's meaning were correct, and even though the preface might help resolve any ambiguities concerning the scope of that individual right remaining after one has analyzed the operative text. At the same time, any interpretation of the right ought, if possible consistent with its text, to further the declared justification in general, as the Court in Miller recognized when it stated that interpretation of the Amendment should keep the "end in view" of assuring the continuation and rendering possible the effectiveness of the militia. (86) As we explain in the remainder of this subpart - considering in turn the meaning of "Militia," what a "well regulated Militia" was, and the ultimate end of "the security of a free State" - the individual-right view does further the ends set forth in the prefatory language, and therefore the preface, properly understood, is fully consistent with the individual-right interpretation of the operative text.
