One Minute Introduction to the Second Amendment
The Second Amendment, America for that matter, can be summed up just by reviewing the preambles of the three main founding documents: Declaration of Independence, Constitution and Bill of Rights.
The Declaration of Independence attests that God-given rights exist implicitly in humankind and that the purpose of government is to secure these rights.
"...that all men are... endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men"
The Constitution was written to provide a framework to secure unalienable rights for all time.
"... in Order to ...secure the Blessings of Liberty to ourselves and our Posterity."
And the Bill of Rights was written to specifically declare a number of those unalienable rights to ensure a good government and prevent abuse of power.
"...in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
The Second Amendment in the Bill of Rights declares that the Militia comprising the general civilian populace is a key to freedom and restricts government from infringing on the right of the people to keep and carry arms.
"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 American Founders understood that freedom can only be protected when the people are vigilant, prepared and able.
Overview of the Second Amendment to the United States Constitution
The Second Amendment to the United States Constitution was passed with a group of ten amendments commonly called the Bill of Rights. Twelve amendments were originally proposed as part of the Bill of Rights but the first two were not ratified by the States. Therefore, the actual Second Amendment to the Constitution was the proposed fourth amendment (as an aside, the original proposed second amendment was finally ratified in 1992 as the 27th Amendment!). The Bill of Rights, including the Second Amendment was ratified on 15 December, 1791.
One of the major concerns that many states had regarding the new federal Constitution was that, while rights of the people were implicit, many of the rights that were viewed as being essential to preserving liberty were not explicitly listed. In many cases, these rights existed in the state constitutions and there was a strong desire by many leaders to have them established in the federal Constitution. This sentiment is expressed in the preamble to the Bill of Rights:
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
The intent of the Bill of Rights was to “prevent misconstruction or abuse of its,” the Constitution’s, “powers.” That is, the intent of the Bill of Rights was to limit the power of the federal government over the people and ensure that “spin” could not be used to limit rights. The Bill of Rights reminds us that government is for the people and that peoples’ rights do not come from the government; rather government is instituted to protect peoples’ rights. This founding principle is the premise from which the Bill of Rights amendments must be received and understood.
History of the Right to Keep and Bear Arms
The right to keep and bear arms began its modern history with the English Bill of Rights in 1689 and the philosophy of John Locke in 1690, and was reaffirmed in 1765 by Sir William Blackstone.
What is of paramount importance to understand when reviewing this history is the ingrained nature of the use of arms for self-defense and “self-preservation,” which would include self-provision. By the time the Bill of Rights was added to the United States Constitution in 1791, the English right to arms for defense was more than one hundred years old, and, as a practice, was even older in Colonial America.
The English Bill of Rights
England had suffered under King Charles II who returned to power from exile in 1671, yet still faced dissent following the de facto republic under Oliver Cromwell. To defend his power he took the means of defense and self-provision from the people under the guise of the Game Act. This act purported to regulate hunting and manage game in the kingdom by stripping people of their firearms and even their hunting dogs and is known as the first recorded gun control law. The subsequent reign of King James II (1685-1688), who attempted to Catholicize an almost entirely Protestant England, took the oppression a step further, deploying a standing army and raiding homes in order to find hidden firearms. By 1688 the people revolted, James II abdicated in the face of the Glorious Revolution, and William and Mary came to power by agreement. That agreement included creation of the English Bill of Rights which was established in 1689. The influence of the English Bill of Rights on America’s founding documents is evident. The History of England, During the Reigns of King William, Queen Anne, and King George the First from 1746 describes the English Bill of Rights this way (emphasis added):
… the chusing of such Persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster, Jan. 22 1689, in order to such an Establishment, as that their Religion, Laws, and Liberties might not again be in Danger of being subverted; upon which Letters, Elections have been accordingly made: And thereupon, the said Lords Spiritual and Temporal, and Commons, pursuant to their respective Letters and Elections, being now assembled in a full and free Representation of this Nation, takeing into their most serious Consideration, the best Means for the attaining the Ends aforesaid, do, in the first Place, as their Ancestors in like Cases have usually done, for the vindicating their ancient Rights and Liberties, declare: That the pretended Power of suspending Laws, or the Execution of Laws by regal Authority, without Consent of Parliament, is illegal.
That the Pretended Power of (t) dispensing with Laws, or the executing of Laws by regal Authority, as it hath been assum’d and exercis’d of late, is illegal.
That the Commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other Commissions and Courts of the like nature, are illegal and pernicious.
That the levying Money to, or for, the Use of the Crown, by Pretence of Prerogative, without Grant of Parliament, for longer Time, or in any other Manner, than the same is or shall be granted, is illegal. That it is the Right of the Subject to petition the King, and all Commitments and Prosecutions for such petitioning are illegal.
That the raising and keeping a Standing Army within the Kingdom in time of Peace, unless it be by Consent of Parliament, is against Law.
That the Subjects, being Protestants, may have Arms for their Defence suitable to their Condition, and as allow’d by Law.
That the Election of Members of Parliament ought to be free.
That the Freedom of Speech, or Debates, and Proceedings in Parliament, ought not to be impeach’d or question’d in any Court or Place out of Parliament.
That excessive Bail ought not to be requir’d, nor excessive Fines impos’d, nor cruel and unusual Punishments inflicted.
That Jurors ought to be duly impannel’d and return’d, and Jurors which pass upon Men in Trials for High Treason, ought to be Freeholders.
That all Grants and Promises of Fines and Forfeitures of particular Persons before Conviction, are illegal and void.
And that for Redress of all Greivances, and for the amending, strengthening, and preserving of the Laws, Parliaments ought to be held frequently.
And they do claim, demand, and insist upon all and singular the Premises, as their undoubted Rights and Privileges; and that no Declarations, judgments, Doings, or Proceedings, to the Prejudice of the People of the said Premises, ought in any wise to be drawn hereafter in Consequence or Example.
John Locke - Second Treatise of Government
English philosopher, John Locke, wrote his famous work, Two Treatises of Government, in 1690. Locke’s Second Treatise lays out the philosophy of Civil Government, explaining that kings have no right to hereditary rule, the laws of nature, the state of war, and many more topics, step by step, ending with the dissolution of government.
Locke provides a foundation for his philosophy by explaining the law of nature. To get a quick understanding, consider two small children playing harmoniously. Then one finds a toy. The other one then wants it and wants to take it. They can work it out, or they can fight over it. In a nutshell, this is natural law. Noting that it can’t always be worked out, Locke summarizes (from chapters 2):
And in the case, and upon this ground, EVERY MAN HATH A RIGHT TO PUNISH THE OFFENDER, AND BE EXECUTIONER OF THE LAW OF NATURE.
Locke explains the state of war, be it between individuals, an individual and government, or governments (from chapter 3):
And hence it is, that he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life: for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for no body can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i.e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me, thereby puts himself into a state of war with me.
The law of nature and the state of war brings about the understanding of the individual’s right to take the life of another:
This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.
And lest someone think that Locke was anti-social or a promoter of war, these quotes are closely followed by:
And here we have the plain difference between the state of nature and the state of war, ... Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature.
William Blackstone - Commentaries on the Laws of England
That the right to arms had become implicit in English, and thus Colonial American, society by the time of the United States Bill of Rights is emphasized in the words of Sir William Blackstone in his comprehensive Commentaries on the Laws of England. By 1765 the natural law philosophy of Locke and the English Bill of Rights had become a “birthright” even to the prominent English jurist (emphasis added):
And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliaments be supported in it's full vigor; and limits certainly known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next to the right of petitioning the king and parliament for redress of grievances; and lastly to the right of having and using arms for self preservation and defence. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws of our country have laid them under necessary restraints. Restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no man of sense or probity would wish to see them slackened. For all of us have it in our choice to do every thing that a good man would desire to do; and are restrained from nothing, but what would be pernicious either to ourselves or our fellow citizens.
A well regulated Militia, being necessary to the security of a free State,…
This declaratory clause in the Second Amendment is both maligned and misused today, but it was well understood and incredibly important to the American Founders. The Founders were strongly against keeping large armies during times of peace. These standing armies, they believed, were dangerous to liberty, having the potential to fall under the control of a tyrannical government.
The founding document of the United States of America, the Declaration of Independence, lists standing armies as one of the tyrannies of King George III:
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
George Washington, in his 1783 Sentiments on a Peace Establishment, written six years before the Bill of Rights and Second Amendment, noted,
…a large standing Army in time of Peace hath ever been considered dangerous to the liberties of a Country…
And Thomas Jefferson stated even more emphatically,
There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army.
The Founders’ solution to the ready defense of the United States of America was the Militia. George Washington’s Sentiments on a Peace Establishment expresses the militia concept as being so natural in America that it should be unnecessary to prove or explain:
Were it not totally unnecessary and superfluous to adduce arguments to prove what is conceded on all hands the Policy and expediency of resting the protection of the Country on a respectable and well established Militia…
and
…we might see, with admiration, the Freedom and Independence of Switzerland supported for Centuries, in the midst of powerful and jealous neighbours, by means of a hardy and well organized Militia. We might also derive useful lessons of a similar kind from other Nations of Europe, but I believe it will be found, the People of this Continent are too well acquainted with the Merits of the subject to require information or example.
Also in 1783, George Washington stated,
The adoption of a proper peace establishment, in which care should be taken to place the militia throughout the Union on a regular, uniform, and efficient footing. The militia of this country must be considered as the palladium of our security and our first effectual resort in case of hostility.
James Madison combined the Founders’ disdain for standing armies with the desire for a strong militia when he said,
As the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia.
Similarly, in 1803, President Thomas Jefferson said,
None but an armed nation can dispense with a standing army; to keep ours armed and disciplined is therefore at all times important.
Later, in 1808, he further expressed,
For a people who are free, and who mean to remain so, a well organized and armed militia is their best security.
Jefferson’s words convey the understanding that the militia is simply an “armed nation” of “people who are free,” organized and disciplined to be able to protect the country. That the nation is armed and free is given. The crux of securing the safety of the nation is how well the people can be organized and disciplined to be a ready and effectual fighting force.
That organization and discipline became broadly known as “well-regulated” in the Bill of Rights as the Second Amendment to the United States Constitution. By 1794, three years after ratification of the Bill of Rights, George Washington had aligned his language to the amended Constitution, saying,
The devising and establishing of a well-regulated militia would be a genuine source of legislative honor, and a perfect title to public gratitude.
This is the meaning of, “A well regulated Militia, being necessary to the security of a free State,…” The well-regulated Militia of the Founders was viewed as a sacrosanct institution for protecting liberty in the United States of America; the “palladium of security” and the best security institution “for a people who are free, and who mean to remain so.”
Grammar and Context of the Second Amendment to the United States Constitution
There has been significant commentary in recent years regarding the grammatical structure of the Second Amendment. Generally, those commentaries have been based in attempts to substantiate a political position against the Second Amendment rather than trying to determine the intent of the Second Amendment.
More important than the grammatical structure of the Second Amendment is the time and context in which it was written. While some suggest that the Constitution is a "living document," the meaning of which changes with time, James Madison, leading advocate for the Constitution and author of the Bill of Rights thought otherwise. In an 1824 letter to fellow Virginian and founding father, Richard Henry Lee, Madison wrote:
With a view to this last object, I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders will, I believe, appear to all unbiased inquirers into the history of its origin and adoption. Not to look farther for an example, take the word "consolidate" in the address of the convention prefixed to the Constitution. It there and then meant to give strength and solidity to the union of the states. In its current and controversial application it means a destruction of the states by transfusing their powers into the government of the union.
It has been said that, "A text without a context is only a pretext," meaning that words, particularly short statements, can be twisted to have meanings other than intended if they are evaluated without consideration of the authorship, surrounding text, and circumstances of their writing.
For context, the Second Amendment is a protection for the people from the federal government. It is in no way a restriction on the people by the federal government. That would be exactly counter to the expressed intent in the preamble of the Bill of Rights:
"...in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
To assume a restriction on people would also be counter to historical context. The Second Amendment was written following the War of the Revolution by which the states comprising the United States achieved freedom from Great Britain and after the federal Constitution of the United States was adopted by those states to replace the earlier Articles of Confederation. This was a time when State sovereignty remained prominent above that of a federal government, with general concern for the continuing freedom of the people and of the states from tyrannical government. It was also a time when, because of decades of tyrannical British rule, there was a broad disdain for standing armies with preference for requiring able-bodied men to be a part of each state's citizen militia.
The text of the Second Amendment declares:
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.
As the preamble to the Bill of Rights suggests, there is a (1) declaratory statement and a (2) restrictive statement in the Second Amendment:
- A well-regulated militia is necessary to the security of a free state
- The right of the people to keep and bear Arms shall not be infringed
These statements stand alone with very little confusion. And taking them as stand-alone declaratory and restrictive (on the government) statements is the correct way to understand their meanings. However, some people become confused about how they relate (and others purposefully pervert the relationship for political reasons). To explain the relationship, not much logic is required, but, again, the foundational meaning of rights in the Bill of Rights is required.
In short, the right of the people to keep and bear arms is not to be infringed and the implicit personal right to arms for self-protection and self-provision is strengthened and reinforced by the need for a well-regulated militia to ensure the security of the state from threats within and without.
The “confusing” statement about the Militia is not a limitation on Second Amendment rights; it is an expression of the extreme importance of Second Amendment rights for the protection of the states. Even without an understanding of the militia, this should once again be clear from the preamble of the Bill of Rights which states the goal of limiting government, not peoples’ rights. And with an understanding of the militia in 18th century colonial America this fact is unimpeachable.
What about the “implicit” rationale of self-protection and self-provision? Why are they not spelled out along with the militia? The answer is based in the context of history. In colonial America many people carried firearms in every-day life for hunting and protection from animals and hostile people, alike. An armed individual in society was not only accepted, but more likely expected.
But that said, Founder, Robert Whitehill, from Pennsylvania, who was against acceptance of the Constitution because it did not affirm rights (as the Bill of Rights later did), proposed the following amendment which explicitly addresses self-protection and self-provision:
That the people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil power.
Finally, the context for the Second Amendment of the United States Constitition, and perhaps the key to its grammatical structure, is demonstrated in the constitutions of the states which ratified the Bill of Rights. State consitutions written prior to the Constitution, under the Articles of Confederation and under the new Constitution, provide the basis for the language used in the federal Bill of Rights- especially the constitutions of Pennsylvania and Virginia. The Second Amendment is a strong blend of the right to bear arms and militia goals from these two states:
The 1776 Pennsylvania Constitution, Chapter I, right XIII, states:
That the people have a right to bear arms for the defence of themselves and the state;
and the Virginia Constitution of 1776, Section 13, states:
That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State;
Clearly, the federal Second Amendment is a compromise expressing that the values of both state constitutions should be protected. This is further evidenced by the 1790 Pennsylvania Constitution, Article IX, Section XXI, created about the same time as the federal Bill of Rights, which uses the language "shall not be questioned" which is very similar to "shall not be infringed:"
That the right of the citizens to bear arms, in defence of themselves and the state, shall not be questioned.