The Intent of the Second Amendment

As Abraham Lincoln said, “if you read it on the internet it must be true.”

I dearly hope that at least 99.99% of readers realize immediately that the above is a joke. The sad fact of the matter is that there is a great deal of misinformation on the internet and that includes wrongly attributed quotes. This tendency seems to reach a formidable height when it comes to the second amendment, where everyone and their brother will copy any quote in sight to justify their position.

The debate on whether guns contribute to or prevent crime is a completely separate discussion and while I have opinions enough when it comes to that I won’t be getting into it just now. Right now what I want to do is look at documents from the early days of our republic to see what exactly was intended by our Founding Fathers when it comes to the Second Amendment.

First, let’s look at the full text of the Second Amendment of the U.S. Constitution:

“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 Bill of Rights

The initial Constitutional amendments that form the Bill of Rights are of a nature which are to protect the rights of individual citizens, not to protect the rights of governments (by plural I mean federal, state, or local). Even if you don’t know the history of what brought about the Bill of Rights, you have only to read through the other amendments added early on to see that the rights of the individual was their concern after already detailing the rights and responsibilities of government in the Constitution itself.

These amendments are something that were debated at length following the writing of the Constitution. Some felt that there was no need for a Bill of Rights because the government had no right to do anything not specifically granted to it by the Constitution. Zachariah Johnson, in Virginia’s state convention regarding ratification of the Constitution, addressed the concern by saying that as things stood “[t]he people are not to be disarmed of their weapons. They are left in full possession of them.”[1] He also objected to making any amendments to the Constitution which were redundant by addressing fundamental rights the people were already known to possess.

Others, like Patrick Henry, felt that specifying a Bill of Rights was imperative to protect the rights of the individual against those who might later attempt to claim such things were not rights at all. This is the foundation of why we have our Bill of Rights – the individual. Yes, the wording of the founders refers to militia because they considered that to be the entirety of the people but the key purpose to specifying the second amendment in the first place is to protect the right of the individual person to keep and bear arms just like it protects the right of the individual to free speech.

In fact, the lack of assurances of individual rights in the Constitution itself was a major concern for many:

“Madison also wrote to Edmund Pendleton, just three days later, noting the dangers of a new constitutional convention, which antifederalists were advocating. The alternative was that Congress would propose a bill of rights: ‘In the mean time the other mode of amendments may be employed to quiet fears of many by supplying those further guards for private rights which can do no harm to the system in the judgments even of its most partial friends.’”[2]

There were concerns among many that the militia would become a select force with those in it having a greater power over the citizens versus a general militia comprised of all citizens. Richard Henry Lee wrote that “to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”[3]

“A well regulated militia…”

This is the part of the amendment that seems to draw the most controversy so let’s also look at what constituted “militia” in 1791 when the Second Amendment was added. While in the modern day “regulation” is considered as being laws or restrictions, keep in mind that a meaning less often used now refers to something being in good working order, functioning well.

To go a little further back to our days as colonists, the militias were meant to defend the colonies in the absence of the British army. During conflicts like the French and Indian Wars, the colonial militia fought alongside the British army in defense of the colonies and in support of Great Britain’s interests. The militia laws in the colonies at this time “required every able-bodied male citizen to participate and to provide his own arms. Militia control was very localized, often with individual towns having autonomous command systems. Additionally, the colonies placed relatively short training requirements upon their militiamen: as little as four days of training per year.”[4]

Though these laws were in place, as the colonists moved closer to revolution and the British tried to disarm them the colonists began forming their own militia that didn’t report to the colonial governors. These militia belonged to the people and operated based on the wants and needs of the people.

During the American Revolution militia didn’t have the best reputation, for while they had undoubtedly made a difference (Battle of Concord and Lexington) military leaders often lamented their reputation for being unable to stand and face the British as was needed (Battle of Camden). That reputation was so well known that Brigadier General Daniel Morgan was able to use it to his advantage in the Battle of Cowpens, drawing the British into a trap when they assumed that yet again the American militia was running from the battle. The end battle in The Patriot, a Mel Gibson film loosely based on various people and events of the American Revolution, is inspired by that Battle of Cowpens where the character Benjamin Martin proposes that they use the militia’s poor reputation to their advantage. Militia were loosely organized, local men gathering to protect their homes using what weaponry they had, and in the early United States of America they were considered under the control of the state.

The published materials on the history of militias are rather lacking from what I have found and quotes from our Founding Fathers allow for a variety of interpretation. One of the most enlightening documents I came across when researching this topic was actually the Militia Act of 1792. This was the first legislation on a federal level to address how our militias should function since the beginning of the war other than the Constitution’s mentions of who had the authority to call form or organize them. This act went in far more detail than the Constitution and sheds a good deal of light on what the Founders’ envisioned for the organization of our militias. In this act the militia is specified as comprising of every (male) citizen from age 18 to 45 and required that every such citizen arm himself with a musket or firelock, bayonet, cartridges, powder, musket balls and other items to be kept on hand.[5]

As mentioned earlier there were known weaknesses of militia for the defense of the nation and that led Congress to pass the Dick Act in 1903 and the National Defense Act of 1916. These provided for the formation of the National Guard and a centralization of power over them, in turn giving them support and resources from federal funds.[6] These and later acts have fundamentally changed the modern perception of what “militia” means but does not and cannot change what it meant historically.

Tench Coxe, who was a delegate from Pennsylvania to the Continental Congress from 1788 to 1789, wrote that:

“The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? It is 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. . . . [T]he 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.”[7]

If we are to assume that “militia” refers only to those bodies organized, supplied and maintained by the government, then why do we have an amendment guaranteeing that the government have access to weapons? Is it not inescapable that governments have access to weaponry? They hardly need a Constitutional amendment to guarantee the right of the government to have weapons. The government doesn’t need protection from itself but rather the individual needs protection from government overreach as is the entire purpose of these other amendments that were added in the same time period. This is a fatal flaw in my estimation to the supposition of some that the right to bear arms refers only to entities like the National Guard.

Conclusion

In the modern day the right to own a gun is considered by many as a privilege granted by government to those who are deemed worthy, subject to certain limitations. However, that was certainly not the view of our Founding Fathers. To them the private ownership of guns by law abiding citizens, barring a religious objection to violence, was not just the right but the responsibility of Americans.

 


 

[1] As quoted in Halbrook, Stephen P. The Founders’ Second Amendment: Origins of the Right to Bear Arms.

[2] Halbrook, Stephen P. The Founders’ Second Amendment: Origins of the Right to Bear Arms. pp. 247-248.

[3] Published as Letter from the Federal Farmer in May 1788. As quoted in Reynolds, Jack. A People Armed and Free: The Truth about the Second Amendment.

[4] Chuck Dougherty, The Minutemen, the National Guard and the Private Militia Movement:Will the Real Militia Please Stand Up? , 28 John Marshall Law Review 959, 962-970 (Summer 1995) (195 footnotes). Excerpt found online at http://academic.udayton.edu/health/syllabi/Bioterrorism/8Military/milita01.htm

[5] The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia. Retrieved from http://www.constitution.org/mil/mil_act_1792.htm

[6] Romano, John F. “State militias and the United States: changed responsibilites for a new era.” Air Force Law Review Winter 2005: 233+. General OneFile. Web. 10 Dec. 2015.

[7] Published in the Pennsylvania Gazette on February 20, 1788. As quoted in Halbrook, Stephen P. The Founders’ Second Amendment: Origins of the Right to Bear Arms.

 

4 thoughts on “The Intent of the Second Amendment

  1. How did we go from “well regulated militia” to “no regulation militia”?

    “Militia’s” are out of control. The people masquerading as “Patriots” are anything but.

    • You raise an interesting point though I think I’d go a different direction with it and there are a couple clarifications I think are worthwhile in this discussion. First, “well regulated” has multiple meanings. In the modern day we look at it as a matter of control, where well regulated is referring to the degree of control (regulations) over whatever is being discussed. That interpretation seems to be what you are referring to in your comment, where it could be restated: “How did we go from a well controlled militia to a uncontrolled militia?” Would that be an accurate interpretation of your words or am I reading into it incorrectly? I would point out that the early American documents which go in at length about the gear they wish each citizen to have would suggest that by “well regulated” the founding fathers actually meant well outfitted with all the necessarily gear with which to defend their homes (meaning their local area, not limited to their own personal property). That doesn’t seem to be an issue so much, and so I’m guessing that’s not your concern.

      We have only to go back in history to see that many founders saw local militias as a check on overreaching governments and so in a sense any modern militias could be construed as doing exactly what was hoped for. However, violence is absolutely not the answer to everything and I believe the circumstances and the way they choose to proceed says a lot about what kind of people they are and whether its patriotism or something else that is their motivation. Is there a particular militia/event you are alluding to? I know I’ve seen a few headlines about some things going on in Oregon but freely admit to not being well read on the events yet so I really have no (educated) opinion on what is at play. I’m extremely wary of anyone who would choose violence and claim patriotism as their justification. Maybe it is, maybe it isn’t, but that isn’t carte blanche to do whatever people please.

      Also, I think the War of Southern Secession changed a lot in terms of who holds the power and what rights the people have to take up arms against government or attempt to separate themselves from centralized government. I think it would have been extremely interesting if a case had been taken to the Supreme Court back in the day regarding the legality of secession rather than it being something settled by blood. That was why Jefferson Davis wasn’t charged with treason after the surrender of the Confederacy — the federal government was wary of taking the matter of secession before a court because they were concerned it wouldn’t go there way. Nowadays I don’t think any court would uphold the right to secession but a lot has changed in 150 years.

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