"[T]he people are not to be disarmed of their weapons. They are left in full possession of them."
Zacharia Johnson, speech in the Virginia Ratifying Convention, June 25, 1778
"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
-Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session, Feb 1982
Zacharia Johnson, speech in the Virginia Ratifying Convention, June 25, 1778
"The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner."
-Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session, Feb 1982
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 Second Amendment is generally interpreted in one of two ways. The first is that it provides all Americans with the right to bear arms. The second reading holds that it is in fact the militia, rather than private citizens, who are granted this right. The second view, as it is often presented today, is guilty of establishing a false dichotomy. We do not have to believe that the militia is granted this right to the exclusion of the average citizen. In fact, I shall attempt to prove that the two interpretations, far from being mutually exclusive, were intended to be roughly synonymous.
To do so, I look to the guideline by which Thomas Jefferson suggested that we may best judge the meaning of the Constitution: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” (1) (emphasis mine)
It has always seemed to me that there exists a disordinate level of confusion regarding the intended meaning of the Second Amendment. I’ve heard people whining about phrase placements and commas, but is it really that difficult? The exact text 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. What is it here that Madison is saying shall not be infringed? Obviously, the right of the people to keep and bear arms. So what is the rest about the militia, and why is it necessary for our security? The Second Amendment only makes sense if you understand its historical context.
In fact, Madison saw no distinction between the right of the citizens to own guns and the right to a militia. An armed citizenry is the militia.
"The Militia is composed of free Citizens. There is therefore no Danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them." - Samuel Adams, III S. Adams, Writings 251.
"Militias, when properly formed, are in fact the people themselves and include 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, Additional Letters from the Federal Farmer (1788)
“I ask sir, what is the militia? It is the whole body of the people except for a few public officials.” – George Mason, Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788
"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 shall 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 the state governments, but where I trust in God it will ever remain, in the hands of the People." – Tench Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
This meaning of the term “militia,” i.e. the people themselves, was well recognized and unchallenged for much of our nation’s history. The ubiquitous and influential nature of this understanding was confirmed by the Supreme Court in 1939, in U.S. v. Miller: “The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of the Colonies and the States, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of a kind in common use at the time” U.S. v. Miller, 307 U.S. 174, 179 (1939).
This fact is further confirmed in Title 10 Section 31 Subtitle A, Chapter 13 Sec. 311 of the US Code, which states that: “The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in Section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”
The two classes of militia are “organized” and “unorganized.”
It is evident that the Second Amendment does not guarantee the right to bear arms to the militia alone and to the exclusion of regular citizens. Rather, the militia and the American citizens are understood to be one and the same. An armed populace constitutes the unorganized militia of the United States of America.
Nor indeed, is the right to bear arms in any way understood to be limited to militia-related duties. It is included by default in the intrinsic right to self defense. As man has a natural interest in his own preservation and cannot rely upon government agents to be ever present to provide that protection, he must necessarily be permitted the means to do so himself. In United States v. Emerson (2001), Justice Cummings confirmed the almost universal historical understanding of the right to bear arms, as described in the United States Constitution, is not limited in scope to participation in the militia or military services
"[T]here are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service. See Bliss v. Commonwealth, 13 Am. Dec. 251, 12 Ky. 90 (Ky. 1822).
This was not a new idea for the colonists, who as British subjects had inherited the rights to own guns in the British Bill of Rights and had long practiced the tradition in America. Thus, the Second Amendment did not confer a new right; rather it merely confirmed officially what America's Founders assumed that all well intentioned individuals already assumed regarding gun ownership. In fact, this was the case with the entire Bill of Rights. America's Founders did not believe that they were bestowing these rights upon the citizens. They would never have been so presumptuous. The Founding Fathers believed that these types of most basic rights were God-given, and that any government which did not confer them upon the general citizenry was both tyrannical and illegitimate.
In 1896, the US Supreme Court declared in Roberson v. Baldwin that,
"The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the 'Bill of Rights,' were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case.... Thus, [Page 43] the freedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons . . . . [126]"
To further examine the historical context of the Second Amendment by reading, in their own words, America's Founders' beliefs on guns, the militia, and the Constitutionally protected right to own firearms, click here.
Why the Second Amendment Matters
Some may ask: "Why is this militia necessary? Why do we need the Second Amendment? Isn't that the military's job?"
The Founding Fathers would answer, "No." They had a rightful and legitimate fear of standing armies, having seen firsthand how these could be manipulated by the political powers that be to intimidate and subdue the populace.
As Thomas Jefferson stated, "The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first." This is why Jefferson proposed for the Virginia Constitution in 1776 that, "No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government." The Second Amendment is a foundational part of the effort to protect citizens from governmental encroachments.
The Founding Father's demands for protections for a well armed citizenry have proven well founded, as many tyrannical governments have used gun control and weapons bans as a starting point for engaging in systematic subjugation or elimination of political rivals, ethnic or religions groups, or other undesirables.
Citations
1. Thomas Jefferson, letter to William Johnson, June 12, 1823
