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.
Very few things in the American Constitution are as hotly debated as the 2nd Amendment. Every single word and punctuation mark (not even kidding) have been debated in public conversation, the media, and pretty much every court in the Nation. One would think that the English is pretty straight forward and clear. However, that’s not the case, and as a result, there have developed a lot of arguments for many perspectives that are based in misunderstanding of the Amendment itself. I hope to help everybody better develop their position by presenting the history of the 2nd Amendment, from before it’s implementation, up to the latest Supreme Court decisions. So, here we go…
Start at the beginning…
The American Revolution of 1776 was a world changing event, to say the least. A small set of 13 colonies waged a war for over 4 years for their independence against the worlds preeminent superpower, and won. What’s amazing about that, is that is the least impressive part about that war. What changed the world happened about 10 years later when the Constitution was ratified. However, all of that started half a century prior with the peak of the Age of Reason and the Enlightenment. Still with me? That’s a lot of bouncing around, but it’s important. Hang in there.
The Enlightenment was a monumental shift in geopolitical and societal thought. There are whole college majors on this time period alone, so clearly we cannot delve too deeply into it, but the highlights are important, so let’s set the stage. The foundations for the Enlightenment really get their start much farther back with the Protestant Reformation. Combined with the printing press giving the ability for people to read in their own vernacular, not needing an education to read Greek or Latin, the reformation kicked off massive civil unrest. Europe erupted in over a century of religious and civil wars. People were rejecting the power and corruption of the Roman Catholic Church, which at that time, pretty much ruled all of Europe. The influence of The Holy Roman Empire was far reaching. The response to this was the Age of Absolutism.
I found a very great, well written site that delves into the Age of Absolutism, here, by Richard Hooker. It’s really well worth the read and will give you a fuller picture of where this all started than I have time to do here. Anyways, back to following this rabbit trail.
The Age of Absolutism attempted to resolve the endless upheaval by consolidating power and control in an absolute Monarchy. Granting the Sovereign full control over the military and the courts among other powers. People were more than willing to give up local control in order to have peace. This, of course, was a pendulum swing too far for many, as the Monarchies quickly became tyrannical and out of touch with their people. They failed in upholding their purpose. This is the foundation that the Enlightenment came from. It was a rejection of all of the above, and a call for Reason to become the supreme authority. This period quickly became known as “The Century of Philosophy”.
Natural Law and America’s Founding Principles
The prevailing philosophical concepts that came out of the Age of Reason were things like individual liberty and religious tolerance. All under the heading of what they called “Natural Law”. Understanding Natural Law is critical to understanding the American Revolution, the Constitution, and the 2nd Amendment. Natural Law is ultimately the realization that mankind is created by God, and endowed with certain rights that exist simply on the concept that they are human. Since these rights are instilled by the Creator, no Government has the ability to grant or remove those ingrained rights, they can only infringe upon them. This was so foundational to the thinking of the American colonies that when they decided to rebel against the British, they included it in their Declaration of Independence, knowing that most of Europe and all of the colonies would be in agreement with these principles.
When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
The concept of Natural Law was so common place, so prevailing, that they called it “self-evident”. There was no explanation required. So, this ushered in the world changing concept, that instead of Absolutism, that Liberty was needed for peace and prosperity. The idea that Governments get their power from the people and not the other way around was a first in the world. This is what gave birth to the American Revolution, the Articles of Confederation, and ultimately, the Constitution and the Bill of Rights, which includes our 2nd Amendment.
Upon the completion of securing their Independence, the colonies now had to Govern themselves. Summing up all the ideals of the Enlightenment, they formed a confederation under the Articles of Confederation. The basic structure was a Republic that gave the individual States their own Sovereignty, by which they in turn supported each other under a weak centralized Government. Unfortunately, this structure was also unable to hold up it’s purpose of securing the liberties of it’s citizens as the individual States would not play well with each other, and the centralized Government had no power to bring about cohesion. This of course, left the States weak economically, and militarily. Thus the need to switch from a confederation to a federation, where a stronger central Government had the power to unite the States, while also having its own powers cheeked by those States.
Why America is… America!
Now we get to the heart of how the 2nd came to be. This is where the rubber hits the road and a major debate broke out, and fortunately for us, was well documented. There is a mountain of documentation from correspondence between the various founders and from National articles published at the time called “The Federalist Papers” and “The Anti-Federalist Papers”. The people really feared the idea of granting too much power to a centralized Government. After centuries of war in Europe and their own war in the colonies, it’s not any surprise that this was a prevailing fear for the time. So, the question of how to give a central government just enough power to secure liberty for the citizens, while at the same time, keep it from becoming too powerful and ultimately tyrannical was the debate of the day. This is the debate that truly changed the world.
“The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” – Federalist Paper 10, James Madison
So, the founders decided that we needed a centralized Government with enough power to unite the States, but also a means by which to check that power and limit it. Enter the Constitution and Federalism. The first way that the Founders implemented controls on Government, is through a Federal Republic. In a Republic, the purpose of Government is met by making the Rule of Law the supreme authority, rather than a Government. This law is the Constitution. Federalism was employed as a means of dividing the powers of the Government among the States and granting them the ability to regulate the centralized Government. For example, any change to the Constitution has to be approved by 3/4th’s of the States. All law has to be approved by Senators elected by the States to represent their own States interests.
The anti-federalist were afraid that reducing the Sovereignty of the States, was entrusting too much power in the Central Government and wanted certain guarantee’s that checks would be in place. They put forth the Bill of Rights. What is of particular interest is that there was an actual debate over whether the Bill of Rights should be included in the Constitution. This debate wasn’t about their legitimacy, but over their already assumed existence. The Constitution was written with the mindset that it was a complete list of things that the Federal Government was permitted to do, and that the Government had zero authorization to do anything else. So, the Federalist didn’t see the need for the Bill of Rights, because no such powers were granted to the Government in the Constitution. They just saw it as redundant.
For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. – Alexander Hamilton
Thankfully, the Anti-Federalist held their ground and insisted on the Bill of Rights as a safeguard for the people. So, now that we have come all the way to the Bill of Rights, we can finally, delve into the 2nd Amendment itself.
The Reason for the 2nd Amendment
The 2nd Amendment was put in place for one reason and one reason only. So, that the Government didn’t hold a monopoly on the use of force. You don’t have to take my word for it. The founders wrote on this extensively.
To disarm the people… was the best and most effectual way to enslave them.
-George Mason, speech of June 14, 1788
What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms. – Thomas Jefferson, letter to James Madison, December 20, 1787
The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed. – Thomas Jefferson
Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops. – Noah Webser An Examination of the Leading Principles of the Federal Constitution, October 10, 1787
Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.
– Patrick Henry, Speech to the Virginia Ratifying Convention, June 5, 1778
For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.
– Alexander Hamilton, Federalist No. 25, December 21, 1787
If the representatives of the people betray their constituents, there is then no resource 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.
– Alexander Hamilton, Federalist No. 28
If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.
– Alexander Hamilton, Federalist No. 28, January 10, 1788
While that is the primary purpose of the 2nd Amendment, the secondary purpose of self defense for individuals, from criminals, was also on their mind.
The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like law, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. – Thomas Paine
The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. – Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776
What is the Militia?
Many people will attempt to make the argument that the 2nd Amendment calls for organized Milita to be armed and that the average citizen who is not a member of this militia need not be armed. So, let’s look at what the founders said about the Militia. Who is the Militia according to the founders? We will start with George Mason, the co-author of the 2nd Amendment, so if there ever was an authority on what those words (his words) meant, it would be him. Let’s look at his thoughts and just so we aren’t limited to him, we will grab a few more. This will show that the understanding of what the militia was, was commonplace.
I ask who are the militia? They consist now of the whole people, except a few public officers.
– George Mason, Address to the Virginia Ratifying Convention, June 4, 1788
A militia when properly formed are in fact the people themselves…and include, according to the past and general usuage of the states, all men capable of bearing arms… “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. – Richard Henry Lee, 1788
If the representatives of the people betray their constituents, there is then no resource 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. – Alexander Hamilton
So, that is what the founders believed. That the Militia called for by the very author of the 2nd, and understood by the remaining body, was to be the whole of the people. Now, lest there be any misunderstanding, let’s look at what the Supreme Court has ruled on the militia. I give you the latest decision of the Supreme Court on the 2nd Amendment, The District of Columbia v. Heller.
The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State … .”
“Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”). – District of Columbia v Heller
So, make no mistake, both the founders, and the Supreme Court have defined the militia as the whole of the people. What is also interesting is that other cases, unrelated to the 2nd Amendment have gone on to define who “the people” are in the Constitution. The finding was that “the people” is not limited to citizenry, but all people under the jurisdiction of the United States. So, non-citizens legally within the United States are also granted 2nd Amendment protections. See United States v. Verdugo-Urquidez.
Now we have addressed who the militia is, who the people are, and now we must look at what the phrase “well-regulated” means. Does it mean heavily controlled with regulations? Well, let’s see…
The history of the phrase “well-regulated” is long and old. It far predates the Founding. It was common vernacular that you could find for a number of references that simply meant, that the object was in good working order. Some examples include:
1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”
1714: “The practice of all well-regulated courts of justice in the world.”
1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.
Daniel J. Schultz writes a tremendous document capturing what the phrase meant at the time of it’s writing. It’s far more indepth and detailed than I have time for here. To sum up the research, the phrase had nothing to do with regulations as we know them today, as laws, rules, or controls. It had to do with things being well taken care of and in proper working order and readily accessible.
So, what constituted as “arms” in 1789 that was protected by the 2nd?
We hear from people who are clearly disingenuous on the topic that it only meant muskets. Never mind that the muskets these mockers refer to were in fact the assault rifle of the day. Let’s look at guns that were actually fairly common in 1789.
Cannons, Mortars, Swivel guns, all could be legally owned and were able to fire exploding cannon balls, case shot, grape shot, bar shot (two balls chained together), and even hot shot (when the metal projectile was made red-hot just prior to loading in order to set structures on fire).
Not stopping there, citizens were allowed to own The Puckle gun was the first known revolving cannon. It fired a 32mm round, had a 11-round revolving cylinder, and was invented in 1718. As well as The Girandoni Air Rifle fired a .46 caliber projectile and had a 20-round magazine. It was invented in 1779 and was used by the Lewis and Clark expedition. Let’s not forget the Belton flintlock , in 1777. It was capable of firing up to either sixteen or twenty rounds within either sixteen, ten, or five seconds. Also, believe it or not, grenades existed then, and were legally owned by American citizens.
Legal and Historical Interpretation of the 2nd Amendment
So, to put this all in order:
A well regulated (well equipped) Militia (the whole of the people), being necessary to the security of a free State (the purpose), the right of the people to keep and bear Arms (the means), shall not be infringed (the founders intentions).
There really is no other genuine way to interpret the 2nd Amendment. To do so is blatant historical revision and dismissal of centuries of court law.
Proper application of the 2nd Amendment
So, what is the proper application of the 2nd Amendment? Well, it states that in it’s own text, “the security of a free state”. As pointed out above, the founders saw this as a check on Government by the citizens. The courts have upheld this and history has been witness to it. So, let’s look at that a little.
As mentioned above, our system is one that uses the Rule of Law as the supreme authority in the land. Law itself can be protective or tyrannical, just ask any African-american or Irishman. The only way any law has any teeth is through the use of force. In the United States, this force is conducted through our men and women in the various police agencies. They are called Law Enforcement Officers for a reason.
Since the law is enforced with the police, and the 2nd Amendment is meant to help citizens protect themselves from tyrannical enforcement, it reasons to say that anything the police have with which to enforce the law, the citizen should also have in order to defend from unjust force.
Some would argue that the 2nd Amendment is outdated and no longer needed because either our Government would never force citizens to surrender their liberties, or that there are other means that citizens can depend on to protect them.
This is clearly a dismissal of all evidence to the contrary. Take the Battle of Athens, TN in 1946. It was election day for the citizens of Athens. They were to elect a new Sheriff, Mayor, and State Senator.
In an effort to control the vote, and secure their positions, the Sheriff confiscated the ballot box and holed up with the Mayor. The citizens, many WWII soldiers, armed with their assault rifles acquired from their time in service, surrounded the corrupt officials and took back the ballot box. They detained the officials until the National Guard was sent to arrest them. The end result is the Government of Athens was disbanded and a new one was put in place.
We can also look at the Bundy Ranch standoff of 2014 in which armed citizens descended upon the ranch to defend the property of Clive Bundy from Federal law enforcement over reach. This too was later upheld by the courts.
The fact is, the principles of the Enlightenment, that the 2nd Amendment was penned under still exist today. Natural Law is still the foundational principle of our system. Our rights are ours, simply because we exist. It is the birthright of every human to secure their own Liberty. Any discussion on policy has to happen from that perspective. Or else the whole purpose of the 2nd Amendment, The Bill of Rights, even our whole Constituion is thrown out.
As the common expression states “the 2nd Amendment is the only Amendment that makes all other Amendments possible.”
Also don’t forget one of America’s own world renown geniuses, Benjamin Franklin…
Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.