1.3.3 The structure of the Bill of Rights
The primary right of the people is personal liberty. All government functions are designed to insure personal liberties. The Constitution's Preamble states the Constitution's (and thus the government's) purposes:
"PREAMBLE: We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America."
All of these purposes serve the final purpose of securing liberty: justice is established so institutions and majorities will not abuse our liberties. Domestic tranquility is secured lest criminal elements trample liberties. The common defense is provided for so foreign powers will not invade and enslave us. The "general welfare" (which benefits everyone, not select groups) must be promoted for the sake of fostering liberty. (Roads and mail, for example, benefit all citizens by allowing free movement, trade, and communication.) These are the sole legal purposes of the federal government and each is subordinate to maintaining the blessings of liberty.
This pattern of subordinating everything to personal liberties is also found in the Bill of Rights. The First Amendment protects freedom of religion, speech, and the press. The remainder of the Bill of Rights is subordinate to free expression, not in the sense of being less important, but in the sense of insuring First Amendment rights. Therefore the Second through Tenth Amendments are designed to protect the First Amendment.
Article II: Gun rights are the "teeth" of the Bill of Rights, meaning that the people are empowered to enforce it against being infringed.
Articles III, IV, and V: Property rights give us a limited sphere of "personal sovereignty" where we can live freely without intervention.
Articles V, VI, VII, and VIII: Legal rights prevent the government from persecuting those who speak out against federal policies or practices.
Article IX: The rights retained by the people are anticipated as a contingency against the government inventing all sorts of new powers.
Article X: State rights divide and dilute the powers of the federal government. The more centralized the power the greater the tyranny.
FREE THOUGHT AND EXPRESSION (the essence of liberty)
GUN RIGHTS (enforce liberty)
PROPERTY RIGHTS (sphere of liberty)
LEGAL RIGHTS (prevent persecution)
UNENUMERATED RIGHTS (limit the expansion of federal powers)
STATE RIGHTS (divide and dilute the federal government's powers)
The Bill of Rights has an integrity that can only be maintained as each of its part remain intact. Eliminate a part, and the whole will crumble.
1.3.4 The meaning of the Second Amendment
Now let's examine the meaning of the Second Amendment as it was originally intended as an integral to the whole of the Bill of Rights.
"Article II: 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."
"A well regulated Militia" does not refer to the regular army. It would be absurd to recognize the federal government's prerogative to raise an army in the Bill of Rights since: (a) It is presumed that all governments raised armies. (b) Since Article II amends the Constitution which already recognizes this prerogative. And (c) since the Bill of Rights is in its entirety a limitation upon, not an empowering of the federal government. Nor does it refer to a state's national guard. Had the Framers meant state militias, they would have not connected the militia with the right of the people to bear arms. It does mean a well-organized army of the people by the people. The word militia originally legally meant (Virginia Bill of Rights, Section 13) and still legally means (U.S. Code, Title 10, Section 31) the whole able-bodied citizenry of the country, not the formal armed forces of the United States. Therefore, "A well regulated Militia" is a well-organized citizens' army, not a well-controlled standing army.
"Being necessary to the security of a free state." It does not say, "being necessary to the security of a crime-free state" nor does it say "being necessary to the security of a free hunting state." Thus, self-defense and hunting are not protected, per se (although these are legitimate derivative activities of gun owners). The reason that the right of the people to bear arms and form militia is protected is to secure a free state. Without the ability of the people to rise up against the growing tyranny of a government, there is nothing to stop the tyranny of the government growing! This intention is made explicit in Section 13 of the Virginia Bill of Rights which clearly influence the development of Article II of the Bill of Rights.
"The right." As we have seen, rights are God-given and governments are formed to protect rights, not to grant them or take them away. Thus the right to bear arms is not something that the government can legitimately legislate away through gun regulation, registration, licensing, taxation, or prohibition.
"Of the people." Consistent with the view that "Militia" refers to an army of the people by the people, the Second Amendment recognizes the right of the people, or private individuals, to keep and bear arms. This right is possessed by people independently of membership in any government-controlled armed force or law enforcement agency.
"To keep and bear." Notice that we have the right both to keep and bear arms. The Framers did not waste words but were very concise in all their texts. So clearly they intended to say that keeping and bearing arms are two different things, both of which are protected. Now the keeping of arms is ownership and possession of arms on your property. The bearing of arms is the carrying of arms with you off of your property. So you have the right to carry weapons with you as well as to own them. Any federal, state, or local law that prohibits bearing firearms on your property or in public is unconstitutional. (Of course, people like business owners may prevent you from bearing arms on their property by exercising their own property rights.)
Arms." What are these arms that are to be protected? Clearly they are those that are useful and effective in maintaining an armed militia. In other words, it is military-style weapons like assault rifles, submachine guns, and combat shotguns that are explicitly protected, not just hunting and target shooting weapons. Whatever type of firearms are the standard-issue weapons of the armed forces, these are the weapons that you and I have the right to own. The more militarily effective a firearm is, the more it is protected by the Constitution. This is not to say that you and I should be permitted to own anything used by the army. Just as the citizen of 1789 did not own canons and ships-of-the-line, today's citizen should not own M-1 Abrams tanks and Stinger anti-aircraft missiles. But just as the citizen and the soldier were armed with the same musket then, so citizens should be able to keep and bear Colt M-16 assault rifles now.
Select-fire assault rifles like the M-16 are the most Constitutionally protected firearms precisely because they are standard infantry weapons.
"Shall not be infringed." "Infringe" means to encroach upon and does not necessarily mean to totally do away with. There are many ways that the right to keep and bear arms can be infringed: regulation limits gun ownership by controlling the production and sales of firearms. Licensing means that an individual is permitted to own or carry weapons. Registration means that an individual's possession of a particular weapon with a serial number is recorded. (Gun businesses are regulated, gun owners are licensed, and guns themselves are registered.) Taxation restricts gun ownership, particularly among the poor, by increasing the cost. Prohibition is either an outright ban of gun possession or the limitation of guns that can be bought.
All of these — regulation, licensing, registration, taxation, prohibition — are totally unconstitutional with respect to arms useful to a militia.
Regulation of guns is illegal if it is designed to reduce the supply or availability of them to the public. There is no difference in principle between limiting production and sales of guns and banning possession of guns. Both have the same effect of disarming citizens.
Licensing means the government gives permission to do something like driving a car and is totally contrary to the nature of a right. What would you think about the government "licensing" your religion or free speech? Having permission and having the right are incompatible.
Registration means you must list your gun with the government which is also contrary to a right. How would you feel about Christians having to register Bibles and newspapers having to register printing presses?
Taxation of guns is also illegal if the taxes exceed the normal sales tax because this artificially raises the cost and limits the citizens' ability to purchase guns. The $200 transfer tax on automatic weapons is a good example of an illegal tax intended to restrict ownership.
Prohibition is clearly unconstitutional as the ultimate infringement of gun rights since it absolutely bans their possession and use. Even limiting gun purchases to one gun per month is an infringement of gun rights since it slows the arming of a militia when a crisis develops.