The District of Columbia Court of Appeals said that the word “the” in “the right to keep and bear arms” shows that the Second Amendment protected a pre-existing right. All nine Justices agreed. The majority opinion makes exactly this point. (“The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” 128 S.Ct at 2797-98.) The Stevens dissent agrees. (“And the Court’s emphatic reliance on the claim ‘that the Second Amendment … codified a pre-existing right,’ ante, at 19, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.” Id. at 2831.) All nine Justices also agree that there was a pre-existing common law right to personal gun ownership. The dispute between the majority and the dissent is whether there was also a pre-existing militia right, which could have been the antecedent for “the” right to keep and bear arms.
Is is possible to use the word “a” to refer to a pre-existing right? Yes, but such a use does not, in itself, show that the writer considers the right to be pre-existing. So when the writers of the 1816 Indiana Constitution used the phrase “a right to keep and bear arms,” or when I use the same phrase, the reader cannot tell from that phrase and that phrase alone that right is pre-existing. The Indiana drafters very likely did consider the right to be pre-existing, but to prove that point, you have to look at sources beyond the actual constitutional text.
Henigan cites to two state constitutions which he says show that there was a pre-existing militia right: First, the 1776 North Carolina Declaration of Rights “That the people have a right to bear arms, for the defence of the State…”, and the 1780 Massachusetts Constitution: “The people have a right to keep and bear arms for the common defence…”
To state the obvious, both of these provisions refer to “a” right to arms. You can’t tell from the text alone whether these provisions refer to a pre-existing right.
Dennis is right that I do see these provisions as including gun ownership for “defense of hearth and home.” See, e.g., State v. Newsom, 27 N.C. (5 Ired.) 250, 251 (1844)(provision protects right to arms for personal defense, but does not protect gun ownership by free blacks, who were supposedly not part of the social compact). But whatever the scope of the Massachusetts and North Carolina provisions protecting “a right” to arms, the text of those provisions does not prove that the right is pre-existing. It might be, but you can’t prove it was pre-existing just by looking at the text.
So in short, we have a wealth of common law and English sources showing that there is a pre-existing natural right to have arms for personal defense. We have zero sources from before 1789 showing a pre-existing right to be in the militia, or to have arms only for use in the militia. If there were such sources, Justice Stevens could have cited one in support of his bare assertion about a pre-existent militia right.
Because all nine Justices agree that the Second Amendment’s particular language points to a pre-existing right, the failure of Justice Stevens, and his supporters, to point to a source proving a pre-existing militia-only right is a fatal flaw in his theory of the Second Amendment as a militia-only right.