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.