The Second Amendment:
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.
The original intent and purpose of the Second Amendment was
to preserve and guarantee,
not grant, the pre-existing right
of individuals to keep and bear arms. Although the amendment emphasizes the
need for a militia, membership in any militia, let alone a
well-regulated one, was not intended to serve as a prerequisite for exercising the right to
keep arms.
The Second Amendment preserves and guarantees an individual right for a
collective purpose. That does not transform the right into a "collective
right." The militia clause was a declaration of purpose, and preserving
the people's right to keep and bear arms was the method the framers
chose to, in-part, ensure the continuation of a well-regulated militia.
There is
no contrary evidence from the writings of the Founding Fathers,
early American legal commentators, or pre-twentieth century Supreme Court decisions,
indicating that the Second Amendment was intended to apply solely to active militia members.
Evidence of an Individual Right
In his popular edition of
Blackstone's Commentaries on the Laws of
England (1803),
St. George Tucker (see
also),
a lawyer, Revolutionary War militia officer, legal scholar, and
later a U.S. District Court judge (appointed by James Madison in 1813), wrote of
the Second Amendment:
The right of the people to keep and bear arms shall not be infringed,
and this
without any qualification as to their condition or degree,
as is the case in the British government.
In the
appendix to the Commentaries, Tucker elaborates further:
This may be considered as the true palladium of
liberty...
The right of self-defense is the first law of nature;
in most governments it has
been the study of rulers to confine this right within the narrowest
limits possible. Whenever standing armies are kept up, and the right
of the people to keep and bear arms is, under any color or pretext
whatsoever, prohibited, liberty, if not already annihilated, is on the
brink
of destruction. In England, the people have been disarmed, generally,
under the specious pretext of preserving the game: a never failing lure
to bring over the landed aristocracy to support any measure, under that
mask, though calculated for very different purposes. True it is, their
bill of rights seems at first view to counteract this policy: but the
right of bearing arms is confined to protestants, and the words suitable
to their condition and degree, have been interpreted to authorise the
prohibition of keeping a gun or other engine for the destruction of
game, to any farmer, or inferior tradesman, or other person not
qualified to kill game. So that not one man in five hundred can keep a
gun in his house without being subject to a penalty.
Not only are Tucker's remarks solid evidence that the militia
clause was not intended to restrict the right to keep arms to active
militia members, but he speaks of a broad right – Tucker specifically
mentions self-defense.
"Because '[g]reat weight has always been attached, and very rightly
attached, to contemporaneous exposition,' the Supreme Court has cited
Tucker in over forty cases. One can find Tucker in the major cases of
virtually every Supreme Court era." (Source:
The Second Amendment in the Nineteenth Century)
(William Blackstone was an English jurist who published
Commentaries on the Laws of England, in four volumes between 1765 and 1769.
Blackstone is credited with laying the foundation of modern English
law and certainly influenced the thinking of the American Founders.)
Another jurist contemporaneous to the Founders,
William Rawle, authored
"A View of the Constitution of the United States of America" (1829). His work was adopted as a
constitutional law textbook at West Point and other institutions.
In
Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:
The prohibition is general. No clause in the constitution
could by any rule of construction be conceived to give congress a power to disarm
the people. Such a flagitious attempt could only be made under some general
pretence by a state legislature. But if in any blind pursuit of inordinate
power, either should attempt it, this amendment may be appealed to as a
restraint on both.
This is another quote where it is obvious that "the people"
refers to individuals since
Rawle writes neither the states nor the national government
has legitimate authority to disarm its citizens. This passage also makes
it clear ("the prohibition is general") that the militia clause was not
intended to restrict the scope of the right.
(In 1791 William Rawle was appointed United States Attorney for Pennsylvania by President George Washington, a post he held for
more than eight years.)
Yet another jurist,
Justice Story (appointed to the Supreme Court as an Associate Justice by James Madison in 1811), wrote a constitutional commentary in 1833 ("
Commentaries on the Constitution of the United States"). Regarding the Second Amendment, he wrote (
source):
The next amendment is: "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."
The importance of this article will scarcely be doubted by any persons,
who have duly reflected upon the subject. The militia is the natural
defence of a free country against sudden foreign invasions, domestic
insurrections, and domestic usurpations of power by rulers. It is
against sound policy for a free people to keep up large military
establishments and standing armies in time of peace, both from the
enormous expenses, with which they are attended, and the facile means,
which they afford to ambitious and unprincipled rulers, to subvert the
government, or trample upon the rights of the people. The right of the
citizens to keep and bear arms has justly been considered, as the
palladium of the liberties of a republic; since it offers a strong moral
check against the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first instance, enable
the people to resist and triumph over them.
As the Tennessee Supreme Court in
Andrews v. State
(1871) explains, this "passage from Story, shows clearly that this
right was intended, as we have maintained in this opinion, and was
guaranteed to, and to be exercised and enjoyed by the citizen as such,
and not by him as a soldier, or in defense solely of his political
rights."
Story adds:
And yet, though this truth would seem so clear, and the importance of a
well regulated militia would seem so undeniable, it cannot be disguised,
that among the American people there is a growing indifference to any
system of militia discipline, and a strong disposition, from a sense of
its burthens, to be rid of all regulations. How it is practicable to
keep the people duly armed without some organization, it is difficult to
see. There is certainly no small danger, that indifference may lead to
disgust, and disgust to contempt; and thus gradually undermine all the
protection intended by this clause of our national bill of rights.
Story laments the people's lack of enthusiasm for maintaining a
well-regulated militia. However, some anti-gun rights advocates
misinterpret this entire passage as being "consistent with the theory
that the Second Amendment guarantees a right of the people to be armed
only when in service of an organized militia."
(See
Arms, Anarchy and the Second Amendment for an example of reaching that conclusion by committing a non-sequitur.)
The need for a well-regulated militia and an armed citizenry are not
mutually exclusive, nor was the right to have arms considered dependent
on membership in an active militia (more on that later). Rather, as
illustrated by Tucker, Rawle, and Story, the militia clause and the
right to arms were intended to be
complementary.
More Evidence Supporting an Individual Right
After James Madison's Bill of Rights was submitted to Congress,
Tench Coxe (see also:
Tench Coxe and the Right to Keep and Bear Arms, 1787-1823)
published his "Remarks on the First Part of the Amendments to
the Federal Constitution," in the Federal Gazette, June 18, 1789
He asserts
that it's the people (as individuals) with arms, who serve as the ultimate check
on government:
As civil rulers, not having their duty to the people duly
before them, may attempt to
tyrannize, and as the military forces which must be
occasionally raised to defend our country, might pervert their power
to the injury of their fellow-citizens, the people are confirmed
by the next article in their right to keep and bear their private arms.
"A search of the literature of the time reveals that no writer disputed or
contradicted Coxe's analysis that what became the Second Amendment
protected the right of the people to keep and bear 'their private
arms.' The only dispute was over whether a bill of rights
was even necessary to protect such fundamental rights."
(Halbrook, Stephen P.
"The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as
26 Val. U. L.Rev. 131-207, 1991).
Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were
considering ratification of the Constitution, Tench Coxe wrote:
Who are the militia? are they not ourselves. Is it feared, then, that we
shall turn our arms each man against his own bosom. Congress have no power
to disarm the militia. Their swords, and every other terrible implement
of the soldier, are the birth-right of an American...The
unlimited power of the sword is not in the hands of either the
federal or state governments but, where I trust in God it
will ever remain, in the hands of the people.
The Federalist Papers
Alexander Hamilton in
Federalist, No. 29, did not view the right to keep arms as being confined to active militia members:
What plan for the regulation of the militia may be pursued by the national government
is impossible to be foreseen...The project of disciplining all the militia of the United
States is as futile as it would be injurious if it were capable of being carried into
execution... Little more can reasonably be aimed at with the respect to the
people at large than to have them properly armed and equipped
; and in order to see that this be not neglected, it will be necessary to
assemble them once or twice in the course of a year.
James Madison in
Federalist No. 46 wrote:
Besides the advantage of being armed, which the Americans possess
over the
people of almost every other nation, the existence of subordinate
governments,to which the
people are attached, forms a barrier against the enterprises of
ambition, more insurmountable than any which a simple government of any
form can admit of. Notwithstanding the military establishments in the
several kingdoms of Europe, which are carried as far as the public
resources will bear, the governments are afraid to trust the people with
arms. And it is not certain, that with this aid alone they would not be
able to shake off their yokes. But were the people to possess the
additional advantages of local governments chosen by themselves, who
could collect the national will and direct the national force, and of
officers appointed out of the militia, by these governments, and
attached both to them and to the
militia, it may be affirmed with the greatest assurance, that the throne
of every tyranny in Europe
would be speedily overturned in spite of the legions which surround it.
Here, like Story, Madison is expressing the idea that additional
advantages accrue to the people when the citizens' right to arms is
enhanced by having an organized and properly directed militia.
The Federalist Papers Continued – "The Original Right of Self-Defense"
The Founders realized insurrections may occur from time to time and it
is the militia's duty to suppress them. They also realized that however
remote the possibility of usurpation was, the people with their arms,
had the right to restore their republican form of government by force,
if necessary, as an extreme last resort.
"The original right of self-defense" is not a modern-day concoction. We now
examine Hamilton's
Federalist No. 28. Hamilton begins:
That there may happen cases in which the national government may be
necessitated to resort to force cannot be denied. Our own experience has
corroborated the lessons taught by the examples of other nations; that
emergencies of this sort will sometimes exist in all societies, however
constituted; that seditions and insurrections are, unhappily, maladies
as inseparable from the body politic as tumors and eruptions from the
natural body; that the idea of governing at all times by the simple
force of law (which we have been told is the only admissible principle
of republican government) has no place but in the reveries of these
political doctors whose sagacity disdains the admonitions of
experimental instruction.
Hamilton explains that the national government may occasionally need to
quell insurrections and it is certainly justified in doing so.
Hamilton continues:
If the representatives of the people betray their constituents, there is then no
recourse left but in the exertion of that original right of
self-defense which is paramount to all positive forms of government,
and which against the usurpations of the national rulers may be exerted
with infinitely better prospect of success than against those of the
rulers of an individual State. In a single State, if the persons
intrusted with supreme power become usurpers, the different parcels,
subdivisions, or districts of which it consists, having no distinct
government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.
Hamilton clearly states there exists a right of self-defense against a
tyrannical government, and it includes the people with their own arms
and adds:
[T]he people, without exaggeration, may be said to be entirely the
masters of their own fate. Power being almost always the rival of power,
the general government will at all times stand ready to check the
usurpations of the state governments, and these will have the same
disposition towards the general government. The people by throwing
themselves into either scale, will infallibly make it preponderate. If
their rights are invaded by either, they can make use of the other as
the instrument of redress. How wise will it be in them by cherishing
the union to preserve to themselves an advantage which can never be too
highly prized!
Thus the militia is the ultimate check against a state or the national
government. That is why the founders guaranteed the right to the people
as opposed to only active militia members or a state's militia. But of
course, via the militia clause, the Second Amendment acknowledges, as
well, the right of a state to maintain a militia. (For more on militia
see:
http://guncite.com/gc2ndmea.html.)
Hamilton concludes, telling us the above scenario is extremely unlikely to occur:
When will the time arrive that the federal government can raise and
maintain an army capable of erecting a despotism over the great body of
the people of an immense empire, who are in a situation, through the
medium of their State governments, to take measures for their own
defense, with all the celerity, regularity, and system of independent
nations? The apprehension may be considered as a disease, for which
there can be found no cure in the resources of argument and reasoning.
Again, it is the recurring theme of the people's right to keep and bear
arms as individuals, enhanced by a militia system, that (in part)
provides for the "security of a free state."
Connecting the Dots...
"The opinion of the Federalist has always been
considered as of great authority. It is a complete
commentary on our Constitution, and is appealed to by
all parties in the questions to which that
instrument has given birth. . . .
"
--- The U.S. Supreme Court in Cohens v. Virginia (1821)
Although the Federalist Papers were written prior to the drafting of the
Bill of Rights (but after the Constitution was sent to the states for
ratification), the passages quoted, above, help explain the
relationships that were understood between a well-regulated militia, the
people, their governments, and the right to keep and bear arms. The
Second Amendment did not declare or establish any new rights or novel
principles.
The Purpose of the Militia Clause
"Collective rights theorists argue that addition of the
subordinate clause qualifies the rest of the amendment
by placing a limitation on the people's right to bear
arms. However, if the amendment truly meant what
collective rights advocates propose, then the text
would read "[a] well regulated Militia, being
necessary to the security of a free State, the right
of the States to keep and bear Arms, shall not be
infringed." However, that is not what the framers of
the amendment drafted. The plain language of the
amendment, without attenuate inferences therefrom,
shows that the function of the subordinate clause was
not to qualify the right, but instead to show why it
must be protected. The right exists independent of the
existence of the militia. If this right were not
protected, the existence of the militia, and
consequently the security of the state, would be
jeopardized." (U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999))
For more information about justification clauses see: Volokh, Eugene,
The Commonplace Second Amendment, (73 NYU L. Rev. 793 (1998)). (See also, Kopel, David,
Words of Freedom, National Review Online, May 16, 2001.)
Parting Shots
There are 3 ways the Second Amendment is usually interpreted to deny it
was intended to protect an individual right to keep and bear arms:
- It protects a state's right to keep and bear arms.
- The right is individual, but limited to active militia members because the militia clause narrows the right's scope.
- The term "people" refers to the people collectively, rather than the people as individuals.
Yet, three jurists, who were contemporaries of the Founders,
and
wrote constitutional commentaries, read the Second Amendment as
protecting a private, individual right to keep arms. There is no
contrary evidence from that period (see Guncite's
Is there contrary evidence? and
Second Amendment challenge).
Instead of the "right of the people," the Amendment's drafters could
have referred to the militia or active militia members, as they did in
the
Fifth Amendment, had they meant to restrict the right. (Additionally, see GunCite's page
here showing evidence that the term, "people," as used in the Bill of Rights, referred to people as individuals.)
It strains credulity to believe the aforementioned three jurists misconstrued the meaning of the Second Amendment.
The only model that comports with
all of the evidence from the
Founding period is the one interpreting the Second Amendment as
protecting an individual right for a collective purpose. The militia
clause and the right to keep and bear arms were intended to be
complementary.
Perversely, gun rights defenders are accused of creating a Second
Amendment myth, when it is some present-day jurists and historians who
have failed to give a full account of the historical record.
(The assertion that the Second Amendment was intended to protect an
individual right should not be confused with the claim that all gun
control is un-constitutional. However, to read why many gun rights
advocates oppose most gun controls, today, please see GunCite's,
Misrepresenting the Gun Control Debate.)
