Some of you may be wondering why we're writing about the Supreme Court decision on the so-called millionaire's amendment rather than the one everyone else is talking about: the landmark Heller decision affirming that the Second Amendment guarantees an individual right to keep and bear arms. The fact is we disagreed about what to say. This editorial, which argues that the Supreme Court should recognize only a collective right to keep and bear arms in the context of "a well-regulated militia," reflects the opinion of the board in March. But we found ourselves fractured in our discussion this morning.
After poring through the opinion this morning, I find myself uncharacteristically agreeing with Justice Scalia and questioning the Second Amendment argument I've been making for at least 25 years.
Oddly enough, a footnote in the dissent is what clarified things for me. On page 8 of Justice Stevens' dissent (page 75 of this pdf), Stevens attempts to counter the majority's notion that only some "logical connection" between the prefatory clause of the amendment - “A well regulated militia, being necessary to the security of a free state" - and the rest of the amendment is necessary to justify its preferred reading of the entire amendment. Stevens quotes a legal treatise that asserts, “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” (Stevens' emphasis) Stevens then claimed that the enacting clause of the Second Amendment is not clear and ambiguous.
I'm sorry if I'm betraying my liberal roots here, this seems pretty clear and unambiguous to me: "The right of the people to keep and bear arms shall not be infringed."
If it is settled law in the United States that a prefatory clause is not controlling unless there is something unclear or ambiguous in the enacting clause, then I cannot argue with the decision reached by the majority in this case.