Why is the Second Amendment to the US constitution structured differently from all other amendments?

Question

The Second Amendment reads as follows:

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.

This can be neatly divided into two parts, split after the word "State", in which the second half would be merely an explicit statement of the law. The question, though, is what is the purpose of the first half?

From what I have seen, it seems that there are two main viewpoints. One view assumes that the first half is a limitation on the explicit law in the second half, in which the right to keep and bear arms is in some way limited to something related to a militia or security of a state. The other view assumes that the first half is not a limitation on the right in the second half, but some kind of introduction or statement of purpose or motivation.

I don't really understand either of these options. If the first half is intended to be part of the law, why not write it explicitly? Something like the right to keep and bear arms to maintain a militia shall not be infringed. If the first half is not intended as part of the law itself, why is this the only constitutional amendment with such an introductory clause?

I have seen several questions on this site that relate to the wording of the Second Amendment, but they all just discuss what the intent (or the law) of the amendment actually is. This question is not about what the amendment actually allows or limits, but about the reason for its unique written structure.

Answer 1

This seems to go back to the various texts that inspired the Bill of Rights. In particular the "Virginia Declaration of Rights" (by Virginia anti-federalist George Mason) This reads:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

The Virginia declaration contains a number of these "preambles": 'That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.' In this case we can see the Virginian text was edited and inserted into an amendment about the freedom of religion, and in doing so lost the preamble. (In fact that text seems to be all preamble, and doesn't actually specify any actual right! So perhaps we should say this was an inspiration to the first amendment, and not a copy-paste job, as the second seems to have been.)

So the reason that the second amendment has this preamble seems to be that it was lifted from the Virginia declaration and uses the same style that Mason had used. Other amendments don't have such justifications. They were lost in the editing and combining of different texts.

For comparison, the English Bill of Rights contains no such preamble:

Protestants may have arms for their defence suitable to their conditions and as allowed by law;

Answer 2

Not sure of the answer to your question but I think that the answer will not alter the overall effect

Legal texts with a preamble before the operative clause (e.g. A being the case, there shall be B) are not unusual. The preamble "sets the scene" and may (but does not have to) commence with "Whereas..." of "As"- see this question.

The Constitution itself starts with a 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 this Constitution for the United States of America.

Preambles "set the scene" but within that general idea different uses of preambles can be discerned. They may be used to convey a sense of dignity and purpose perhaps with a reassurance about good and noble intentions. The preamble to the constitution (above) is like that.

Sometimes a preamble will set out some kind of justification for what follows. For example the 18th Amendment could have been drafted to start:

Alcohol being the cause of many vices and a mother's ruin...

and the 21st Amendment could have had a preamble saying:

As wine doth gladden the heart of man...

Preambles don't normally affect the meaning of the operative part because the operative part should be clear in its own terms but if the meaning of the operative part is ambiguous, so that the court has to look outside its terms for clues as to what might have been intended, then the preamble is one of the things which might shed light on the intended meaning. For example if you had an amendment saying the brewing of alcohol shall be prohibited you could argue that that just prohibits beer and not cider or wine, but if there were a preamble saying alcohol in all its forms is pernicious and a great evil that would suggest that all alcohol is prohibited even alcohol which does not require brewing as part of is production.

It is possible to read too much into preambles. Laws generally have to be fairly simple to be effective so there is nothing unusual per se in a law which goes further than the precise problem set out in the preamble. For example if the text read

As the reckless driving of automobiles is a danger to horse riders, it shall be prohibited to drive faster than 30 miles per hour.

that obviously would not mean that it is OK to drive faster than 30 miles per hour as long as you are not driving recklessly and as long as there are no horse riders around.

I don't know why the Second Amendment has a preamble whereas others do not but I don't think there necessarily has to be a reason. There are a lot of amendments but they were not all passed at the same time - it is not as if you have a long document drafted at a single time and are looking for reasons why the same drafter used different styles in different parts. If I had to guess why the Second Amendment has the preamble which it does my guess would be that the preamble is designed to make the proposed amendment acceptable to those who were concerned about standing armies. There is evidence of concern at the time about having a permanent army - that it might become an oppressor of the people in peacetime when it is not occupied in fighting. Some evidence of this concern can be found in the Third Amendment passed the same year. The emphasis in the preamble on a well regulated Militia being necessary for the security of a free State may be in effect saying to doubters bearing arms is necessary for a proper Militia - it doesn't have to mean a standing army and loss of freedom But that is just a guess on my part.

I cannot shed any more light on why the Second Amendment has a preamble whereas others do not. However I would observe that a key point in understanding the overall issue is that the text of the Second Amendment does not create a right to bear arms. The way you word the question might seems to suggest that it does and thus gives the precise wording of the text perhaps greater importance that it deserves.

The text presupposes an existing right to bear arms and states that that existing right "shall not be infringed". What is the difference between creating a constitutional right to bear arms and creating a constitutional right to the non-infringement of an existing right to bear arms?, I hear you ask.

It can make a difference to the importance of the preamble. Normally preambles have no effect but if the Second amendment had said Because we need Militias there shall be a right to bear arms then you could possibly argue that the intended meaning is that there should be a right to bear arms as part of a Militia (but not otherwise). I don't think this would be a very good argument because the idea of Militias (as distinct from standing armies) is that they come into action when needed so you need individual people to have arms at home so that they, together with their arms, can form a militia when needed. But it is an argument which could be made if the Second Amendment had created a right to bear arms.

But because the Second Amendment does not create a right to bear arms that argument cannot be made.

You could make an argument, based on the preamble, that the First Amendment should be interpreted to mean the right to bear arms shall not be removed in the case of Militias (but may be removed in other cases) but that reading, though not impossible, would be quite strained because the word used is infringed which is quite an emphatic word with the sense of not interfered with at all. If the intent had been to say that only part of the existing right was to be protected then "shall not be infringed" would be an odd choice of words.

So the fact that the First Amendment is not worded as the creation of a right, and it is not even worded as defining the right which is not to be infringed, but is simply states a constitutional prohibition on the infringement of a existing right defined elsewhere means that it is difficult to give the preamble (why ever it is there) any weight in modifying the the otherwise straightforward simple meaning of the text.

Of course that leaves the nature of the existing right which is not to be infringed up for debate. As with everything to do with the Common Law there is no written code to be consulted: you have to work out what the Common Law was when the Second Amendment was passed using decided cases (which set legal precedents) and written texts considered authoritative such as William Blackstone's Commentaries on the Laws of England (1765).

The nature of the existing right which the Second Amendment prohibits the infringement of was identified by the US Supreme Court (in the case of [DISTRICT OF COLUMBIA ET AL. v. HELLER])3 as the right of having arms for defence which existed at the time in the English Common Law (and therefore in the law of each state). It said that that existing right to bear arms was an individual right and not a collective right limited to organised militias, and that the Second Amendment to the Constitution merely codified that existing individual right (rather than creating a new right).

William Blackstone in Vol. 1, Commentaries on the Laws of England (1765) states:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

SCOTUS refer to this saying:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and selfpreservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; Cite as: 554 U. S. ____ (2008) 21 Opinion of the Court see also 3 id., at 2–4 (1768). Other contemporary authorities concurred.

The rationale appears to be that because the right of resistance and self-preservation is a natural right it cannot be a right conditional on military service.

The SCOTUS majority opinion concludes:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed

Random note on the wider issue I know that the right of private citizens in the USA to walk around with firearms for personal protection (rather than, for example, just for hunting) is controversial and many people in the US would like to see more restrictions, whilst others may regard any restrictions as the "thin end of the wedge". For those who want to develop legal arguments that the right to bear arms should be understood to be more restrictive than it is currently considered to be the most fruitful area of legal research would probably be the content of the English Common Law at the time (rather than the wording of the 2nd Amendment). Blackstone refers (in the quote above) to a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression - plenty of room for arguments about conditions and qualifications there.

Answer 3

The original conception of the US political structure was a cohesion of independent states, with the following principles:

• The states would act as a unit in international affairs through federal structures
• The states would set limits on themselves through federal structures to prevent economic, political, or military conflict between themselves
• The states would each develop and maintain a Liberal (citizen/rights-centered) form of government
• The states would otherwise be independent of each other's influence

The founders were particularly worried about the creation of a strong, centralized military, something which (in their view of European history) inevitably led to tyrannical rule of one sort or another. Their solutions was to empower states to form militias for internal defense, which could be summoned by the federal government at need. This is why we still find an assortment of town and state armories on the East Coast and in the Midwest: locations for training private citizens in basic military tactics and the use of weapons. The idea was to have trained men who could be called up at short notice, either with their own hunting weapons or with military weapons (like cannon) stored in the armory.

In other words, the passage means exactly what it says: that (in 18th century Liberal logic) citizen militias were essential for preserving the independence and liberty of a state, and therefore citizens (not necessarily individual citizens) must be allowed to keep and bear arms. The separation of the passage into two separate and ostensibly unrelated clauses is largely unjustified — in other passages separate clauses are separated by semicolons — and the whole thing makes less sense within the modern world, where the military has become a highly technical profession unsuited to citizen militias. But...

Answer 4

Your question title and body are asking two different things. Given that answering the title is much harder (guessing at the motivations for why certain wording was chosen over some other wording), I'll answer the question in the body:

The question, though, is what is the purpose of the first half?

First, the text of the Second Amendment as you quote in your question:

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.

Now, the crux of your question is a misunderstanding:

This can be neatly divided into two parts [...]

This statement is incorrect; the sentence cannot be divided into two separate statements, because the first part describes and constrains the second. Otherwise they probably would have used a period, or not bothered with the first part at all, and just said something like

The right of the people to keep and bear arms shall not be infringed.

And that would just be it.

In modern, plain English, one should read the full sentence as saying this:

Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

I'll leave it as an exercise to the reader to determine what the implications for this interpretation are, compared to how it is commonly interpreted.