May 20, 2011 – Amendment II of the United States Constitution – Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

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Amendment II

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.

Like most of the Bill of Rights, the Second Amendment was part of a conciliatory program by the Federalists, as promised by James Madison at the Virginia ratifying convention. For the most part, the Bill of Rights consisted of assurances that the new federal government could not do things which the Federalists never wanted to do anyway, and which the Federalists believed were not within the powers which had been granted to the new government.

For example, the Federalists had no wish to establish a national religion, and they believed that Congress’s enumerated powers (e.g., to establish post offices, to regulate interstate commerce) could not possibly be construed so as to give Congress the power to establish a religion. Accordingly, Madison and the other Federalists were perfectly happy to add a constitutional amendment plainly stating that Congress could not establish a religion.

The Second Amendment was of a similar character. Based on knowledge of history from ancient times to the present, the Federalists and the Anti-Federalists agreed that disarmament was a direct path to slavery. Indeed, the heavy-handed English government of King George III had precipitated the American Revolution through an aggressive gun control program in 1774-76: embargoing the import of guns and gunpowder by the American colonies, confiscating the guns and gunpowder which some towns stored in central repositories (the repositories kept guns for militiamen who could not afford their own gun, and provided merchants a place to keep reserve quantities of gunpowder in a fireproof building), putting Boston under military occupation and confiscating the firearms of the Bostonians, using the military to conduct house-to-house searches for firearms at Lexington and Concord, and then naval bombardment and destruction of coastal New England towns which refused to surrender all their arms.

Accordingly, the Second Amendment’s assurance that the federal government could never disarm the people was uncontroversial.

Where Madison had refused to budge was on the subject of federal powers over the militia. The original Constitution, in clauses 15-16 of Article I, section 8, had given Congress broad authority to summon the militia into federal service, and to provide for the organization, arming, and disciplining of the militia. At the state ratifying conventions, Anti-Federalists had strongly objected to these new federal powers. But Madison refused to limit federal militia powers, just as he refused all other proposals to constrict the federal powers granted by the new Constitution.

When U.S. Representative James Madison introduced his proposed Bill of Rights into the first session of the United States House of Representatives in 1789, he proposed that the right to arms language be inserted into Article I, Section 9, after Clause 3. Clauses 2 and 3 protect individuals against suspension of the writ of habeas corpus, bills of attainder, and ex post facto laws. Madison also suggested that what were to become the First, Third, Fourth, Eighth, and Ninth Amendments, portions of the Fifth Amendment (double jeopardy, self-incrimination, due process, just compensation), and portions of the Sixth Amendment (speedy public trial, right to confront witnesses, right to be informed of charges, right to favorable witnesses, right to counsel) also be inserted there.

Madison proposed that the remainder of the Fifth (grand jury), Sixth (jury trial, in the form of a declaration that “trial by jury as one of the best securities to the rights of the people, ought to remain inviolate”), and the Seventh Amendment (civil jury trial) be inserted into Article III, which deals with the judiciary. He recommended that what would become the Tenth Amendment be inserted as a new article between Articles VI and VII. His proposed limitation on congressional pay raises was to be inserted into Article I, Section 6, which governs congressional pay. (This was eventually ratified as the Twenty-seventh Amendment in 1992.)

If Madison had seen the proposed Second Amendment as a limitation on federal militia powers, then he would have placed the Amendment in the part of the Constitution which defines federal militia powers. (Article I, § 8, clauses 15-16.) Instead, he placed the proposed language in the portion of the original Constitution which guaranteed individual rights.

However, the House objected that interpolating changes into the original Constitution would imply that the original Constitution had been defective. So Madison’s changes were eventually appended to the Constitution, as amendments following the main text.

For the speech introducing the Bill of Rights into the House of Representatives, Madison’s notes contain the following: “They relate first to private rights—fallacy on both sides—espec as to English Decln. Of Rights—1. mere act of parl[iamen]t. 2. no freedom of press—Conscience…attaineders—arms to protest[an]ts.” James Madison, “Notes for Speech in Congress Supporting Amendments,” June 8, 1789, in 12 Madison Papers 193-94 (Robert Rutland ed., 1979) (bracketed letters not in original).

The English Declaration of Rights, enacted by Parliament in 1689, had declared that “The subjects which are protestants may have arms for their defence suitable to their conditions as and allowed by law.”

So Madison believed that the English Declaration of Rights was defective because it was a mere act of Parliament, and thus could be over-ridden by a future Parliament. Further, the English Declaration of Rights did not go far enough, in part because its arms guarantee protected only Protestants (98% of the English population at the time).

As introduced by Madison, the Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

After approval by the House, the Second Amendment was considered by the Senate. The Senate (1) removed the religiously scrupulous clause and the phrase “composed of the body of the people,” (2) replaced “the best” with “necessary to the,” and (3) rejected a proposal to add the words “for the common defence” after “the right of the people to keep and bear arms.” 1 Journal of the First Session of the Senate 71, 77 (1820).

The rejection of the “common defence” language made it clear that the Second Amendment right to arms was not solely for militia service.

The middle clause, about a well-regulated militia, was moved so that it became the introductory clause. As enacted, the Second Amendment had a form typical in state constitutions of 18th and 19th centuries: an introductory, purpose clause announced an important political principle, and then an operative clause declared the legal rule.

For example, Rhode Island’s 1842 Constitution declared: “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .” Eugene Volokh, “The Commonplace Second Amendment,” 73 NYU Law Review 793 (1998).

The right which is guaranteed in the operative clause is not limited by the purpose clause. In Rhode Island, the purpose clause refers to “the press,” but the operative clause protects the speech rights of “any person,” not just journalists. Likewise, the Second Amendment right does not belong only to the militia; it belongs to “the People,” just as the First Amendment right to assemble and the Fourth Amendment right to freedom from unreasonable searches and seizures, are rights of “the People,” and therefore rights belonging to all individual Americans.

Tench Coxe, a political ally of Madison who would later serve in Madison’s sub-cabinet, penned the most comprehensive section-by-section exposition on the Bill of Rights published during its ratification period. Regarding Madison’s proposed right to arms amendment, Coxe wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” Federal Gazette, June 18, 1789, p. 2.

After Coxe, the best evidence of the original public meaning of the Second Amendment comes from the most influential and widely used legal treatise of the early Republic, the five-volume, 1803 American edition of William Blackstone’s Commentaries on the Common Law of England, edited and annotated by the Virginia jurist St. George Tucker (1752-1827). Tucker was a militia colonel during the Revolutionary War, a Virginia Court of Appeals judge, a federal district judge, and professor of law at the College of William & Mary. Regarding the Second Amendment, Tucker’s 1803 treatise was essentially verbatim from his 1791-92 lecture notes at the College of William & Mary, almost immediately after the Second Amendment had been ratified.

Tucker’s Blackstone was not merely a reproduction of the famous English text. It contained numerous annotations and other material suggesting that the English legal tradition had undergone development in its transmission across the Atlantic, generally in the direction of greater individual liberty. Tucker’s treatment of Blackstone’s discussion of the right to arms was typical. According to Tucker: “The right of the people to keep and bear arms shall not be infringed. Amendments to [Constitution], and this without any qualification as to their condition or degree, as is the case in the British government.” St. George Tucker, 1 Blackstone’s Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia 143-44 (1803) (reprinted 1996 by The Lawbook Exchange).

Tucker’s Blackstone also included a lengthy appendix on the new American constitution. This appendix was the first scholarly treatise on American constitutional law and has been frequently relied upon by the United States Supreme Court and scholars. Tucker’s primary treatment of the Second Amendment appeared in the appendix’s discussion of the Bill of Rights:

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.

. . .This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Appendix to Vol. 1, Part D, p. 300.

Tucker’s appendix also mentioned the right to arms in the context of Congressional power over the militia. Noting that the Constitution gives Congress the power of organizing, arming, and disciplining the militia, while reserving to the states the power to train the militia and appoint its officers, Tucker asked whether the states could act to arm and organize the militia if Congress did not. He argued that the language of the Second Amendment supported the states’ claim to concurrent authority over the militia:

The objects of [the Militia Clauses in Article I] of the constitution, . . . were thought to be dangerous to the state governments. The convention of Virginia, therefore, proposed the following amendment to the constitution; “that each state respectively should have the power to provide for organizing, arming, and disciplining it’s own militia, whenever congress should neglect to provide for the same.” . . . [A]ll room for doubt, or uneasiness upon the subject, seems to be completely removed, by the [second] article of amendments to the constitution, since ratified, viz. ‘That a militia [sic] being necessary to the security of a free state, the right of the people to keep, and hear arms, shall not be infringed.’ To which we may add, that the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government.

Id., pp. 272-73.

Tucker’s treatise was studded with other references to the right to arms. For example, Tucker contended that Congress’s power to enact statutes that are “necessary and proper” for carrying into effect its other enumerated powers, U.S. Const. art. I, sec. 10, cl. 8, did not include the power to make laws that violated important individual liberties. Such laws could not be deemed “necessary and proper” in the constitutional sense, argued Tucker; therefore, they were invalid and could be struck down by a federal court. Tucker chose as an illustration a hypothetical law prohibiting the bearing of arms:

If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of those means.

Id., p. 289.

Similarly, Tucker observed that the English law of treason applied a rebuttable presumption that a gathering of men was motivated by treason and insurrection, if weapons were present at the gathering. Tucker, however, was skeptical that the simple fact of being armed “ought … of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself.” Vol. 5 Appendix, at 9, note B. He added: “In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Id. For more on Tucker and the Second Amendment, see David T. Hardy, “The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights,” 103 Northwestern University Law Review Colloquy 1527 (2009); Stephen P. Halbrook, “St. George Tucker’s Second Amendment: Deconstructing the True Palladium of Liberty,” 3 Tennessee Journal of Law & Policy 114 (2007).

From Madison, Coxe, and Tucker to the present, the large majority of Americans have always understood the Second Amendment as guaranteeing a right to own and carry guns for all legitimate purposes.

This view was re-affirmed after the Civil War. Specifically invoking the “the constitutional right to bear arms,” Congress enacted the Second Freedmen’s Bureau Bill to stop the South from interfering with gun ownership and carrying by the former slaves. Similarly, the Fourteenth Amendment was passed by Congress, and ratified by the states, for, among other things, preventing the Southern states from interfering with the Second Amendment rights of the Freedmen to keep and bear arms to defend themselves against the Ku Klux Klan and similar racial terrorists. , Stephen P. Halbrook, Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Oakland: Independent Institute, 2010).

The U.S. Supreme Court relied on this original meaning in the 2010 case McDonald v. Chicago, holding that the Fourteenth Amendment prohibits state and local governments from infringing Second Amendment rights.

During part of the 20th century, a theory was created that the Second Amendment was not an individual right, but was instead a “state’s right” or a “collective right.” Although lacking in historical support, these anti-individual theories were for a time popular among some elites. However, in District of Columbia v. Heller (2008), all nine Justices of the Supreme Court agreed that non-individual interpretations of the Second Amendment were supported neither by history nor by the Court’s precedents.

The Heller Court split 5-4 on whether the individual right was only for militia purposes (the four dissenters led by Justice Stevens) or was for all legitimate purposes (the five-Justice majority led by Justice Scalia). The majority result had strong support not only in the original meaning of the Second Amendment, but also in more than two centuries of history and evolving tradition of the Second Amendment, in which the American people had repeatedly affirmed the right to own and carry firearms for personal defense, hunting, and all other legitimate purposes. David B. Kopel, “The Right to Arms in the Living Constitution,” 2010 Cardozo Law Review de Novo 99.

David B. Kopel is Research Director of the Independence Institute, a think tank in Golden, Colorado. He is also adjunct professor of Advanced Constitutional Law at Denver University, Sturm College of Law; and an Associate Policy Analyst at the Cato Institute, in Washington, D.C. He is the author of 12 books and over 80 scholarly articles, many of them on firearms law and policy. He is co-author of the first law school textbook on the subject, Firearms Regulation and the Second Amendment, forthcoming from Aspen Publishers.

 

5 replies
  1. Jim Hiegel
    Jim Hiegel says:

    It still seems to me that the 5-4 Heller as well as other subsequent rulings have proved beyond a shadow of a doubt that the Court consists of not only some Liberal Judges, but Anti-American Judges. They should be removed & tried for treason. Not to mention the White House Usurper et al.

    Why do our patriots not do something? There are many smarter than I out there. And if I can see the problems today, I’m sure they can see them also & even know how to fix/circumvent the problem.

    When is the time for action? What action?

    Reply
  2. Jae William Erpelding
    Jae William Erpelding says:

    Such Great Information..
    These Kinds Of Things Should Be Part
    Of A Daily Diet In Every School From Kindergarten
    Up Through College Graduates..
    Thank You, & God Bless You For Your Efforts,
    Jae & Jehanne…

    Reply
  3. Richard Monts
    Richard Monts says:

    “The middle clause, about a well-regulated militia, was moved so that it became the introductory clause. As enacted, the Second Amendment had a form typical in state constitutions of 18th and 19th centuries: an introductory, purpose clause announced an important political principle, and then an operative clause declared the legal rule.”

    Thank you Prof Kopel for clarifying the phrase “well-regulated.” This has been misconstrued to mean the government has the right to regulate. It is my understanding the word “regulate” was used as in controlled or balanced. When used meaning balance or control, it is a check of government power, a physical balance of power, an extension of the separation of powers that is the hallmark of the Constitution.

    It was good to learn the form of the statement as introductory, purpose clause followed by the legal rule. To read the clause with this understanding clarifies the meaning.

    Reply
  4. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    This is the best write up on the 2nd Amendment I have ever seen and like to add a few thoughts.

    “Accordingly, Madison and the other Federalists were perfectly happy to add a constitutional amendment plainly stating that Congress could not establish a religion.”

    And that is under the fact that the 14th article of the Bill of Rights (the original draft submitted to the House and Congress had 17 and 21 articles a piece) required each state to also adhere to freedom of the press, conscience, association, speech, assembly, et.al. BUT did not require states to disestablish their state religion. There was no Establishment Clause in that 14th requiring states to be bound by that federal article. Madison thought the 14th article was the most powerful amendment in the whole lot; but it was killed in the Senate as senators were two patriotic to their own state to give up such plenary power over to the federal seat. Yet, many of the state constitutions already had, or soon had, such provisions.

    Now Madison and the Federalists did dispute the use of a Bill of Rights in that he knew the Constitution to be a “Positive Law” document: telling the federal seat what it is allowed to do. By injecting a “Negative Law” document: telling the federal seat what it is NOT allowed to do; gave pause that having a list of Do’s and Don’ts would leave open interpretation for more implied powers by use of sophistry than if there was strictly only a list of Enumerated Powers strictly granted the federal seat to do. By having a list of Don’ts, then the argument for aggregating more federal powers becomes “But the Constitution does not forbid regulation of manufactures or regulation of labor” by simply pointing to the Bill of Rights.

    One of the reasons, I suppose, that Madison wanted to insert the Amendments as revisions into the text of the Constitution where they belong is the fact that the Bill of Rights was instrumental in heading off another Constitutional Convention. If the Bill of Rights did not make a revised Constitution early enough, then the Constitution would likely have been replaced with another one that looked very different than the original. So making a revised version using amendments would have taken more of the wind out of the sails of the movement for another Constitutional Convention.

    Last, the 2nd Amendment is the only amendment in the Bill of Rights that actually affected and limited states rights; unlike the 14th Amendment SCOTUS “Doctrine of Incorporation” of the 1920s, the 2nd Amendment actually required states to respect citizen held gun ownership. The Militia Act of 1792 was passed quickly after the ratification of the 2nd Amendment that required each able bodied man to carry a musket/rifle and carry what would be a couple of clips of ammunition. This was enough ammunition for a skirmish with an invading armed regiment. Militia back then were the 1st line of defense for the country. The federal army was a reinforcement contigent.

    Reply

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