On Preambles

[Bill Funk]

Randy Barnett wrote:

> Upon rereading this for class, it occurred to me that it was relevant to our
> discussion of the Second Amendment.  In his opinion to President Washington
> on the constitutionality of the national bank, Attorney General Edmund
> Randolph wrote of the Preamble to the Constitution:
> "[T]he Preamble if it be operative is a full constitution in itself; and the
> body of the Constitution is useless; but it is declarative only of the views
> of the convention, which they supposed would be best fulfilled by the powers
> delineated and that such is the legitimate nature of preambles."

I guess I am not quite sure what Randy means in terms of how this relates to the
SEcond Amendment.  I assume he means that the introductory (and ungrammatical)
clause "A well regulated militia, being necessary to the security of a free
state" is preambular and therefore is not "operative."  If that is what he
means, I agree.  At the same time, it also suggests that the operative language
of the Amendment was seen as the means for "best fulfilling" the purposes of the
preamble.  This would support the reading of the Amendment, which Eugene has
noted is one of the standard readings, that while the Second Amendment reflects
an individual right to keep and bear arms, the reason for protecting such a
right is to assure that State militias will be available to assure the security
of the state.  And, of course, the security of the state needs to be protected
both from possible uprisings within it as well as possible tyranny by the new
federal government, which, as viewed at the time, would not have a large
standing army.

Bill Funk
Lewis & Clark Law School