Why ‘We The People Need’ The 2nd Amendment
By TLB Contributor: Dan Asmussen
The Second Amendment to the United States Constitution states: “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 reference to a “well regulated” militia, probably conjures up a connotation at odds with the meaning intended by the Framers. In today’s English, the term “well regulated” probably implies heavy and intense government regulation. However, that conclusion is erroneous.
The words “well regulated” had a far different meaning at the time the Second Amendment was drafted. In the context of the Constitution’s provisions for Congressional power over certain aspects of the militia, and in the context of the Framers’ definition of “militia,” government regulation was not the intended meaning. Rather, the term meant only what it says, that the necessary militia be well regulated, but not by the national government.
To determine the meaning of the Constitution, one must start with the words of the Constitution itself. If the meaning is plain, that meaning controls. To ascertain the meaning of the term “well regulated” as it was used in the Second Amendment, it is necessary to begin with the purpose of the Second Amendment itself. The overriding purpose of the Framers in guaranteeing the right of the people to keep and bear arms was as a check on the standing army, which the Constitution gave the Congress the power to “raise and support.”
As Noah Webster put it in a pamphlet urging ratification of the Constitution, “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe.” George Mason remarked to his Virginia delegates regarding the colonies’ recent experience with Britain, in which the Monarch’s goal had been “to disarm the people; that (that) . . . was the best and most effectual way to enslave them.” A widely reprinted article by Tench Coxe, an ally and correspondent of James Madison, described the Second Amendment’s overriding goal as a check upon the national government’s standing army: 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.
Thus, the well regulated militia necessary to the security of a free state was a militia that might someday fight against a standing army raised and supported by a tyrannical national government. Obviously, for that reason, the Framers did not say “A Militia well regulated by the Congress, being necessary to the security of a free State” — because a militia so regulated might not be separate enough from, or free enough from, the national government, in the sense of both physical and operational control, to preserve the “security of a free State.”
It is also helpful to contemplate the overriding purpose and object of the Bill of Rights in general. To secure ratification of the Constitution, the Federalists, urging passage of the Constitution by the States had committed themselves to the addition of the Bill of Rights, to serve as “further guards for private rights.” In that regard, the first ten amendments to the Constitution were designed to be a series of “shall nots,” telling the new national government again, in no uncertain terms, where it could not tread.
It would be incongruous to suppose or suggest the Bill of Rights, including the Second Amendment, which were proscriptions on the powers of the national government, simultaneously acted as a grant of power to the national government. Similarly, as to the term “well regulated,” it would make no sense to suggest this referred to a grant of “regulation” power to the government (national or state), when the entire purpose of the Bill of Rights was to both declare individual rights and tell the national government where the scope of its enumerated powers ended.
In keeping with the intent and purpose of the Bill of Rights both of declaring individual rights and proscribing the powers of the national government, the use and meaning of the term “Militia” in the Second Amendment, which needs to be “well regulated,” helps explain what “well regulated” meant. When the Constitution was ratified, the Framers unanimously believed that the “militia” included all of the people capable of bearing arms.
George Mason, one of the Virginians who refused to sign the Constitution because it lacked a Bill of Rights, said: “Who are the Militia? They consist now of the whole people.” Likewise, the Federal Farmer, one of the most important Anti-Federalist opponents of the Constitution, referred to a “militia, when properly formed, (as) in fact the people themselves.” The list goes on and on.
By contrast, nowhere is to be found a contemporaneous definition of the militia, by any of the Framers, as anything other than the “whole body of the people.” Indeed, as one commentator said, the notion that the Framers intended the Second Amendment to protect the “collective” right of the states to maintain militias rather than the rights of individuals to keep and bear arms, “remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.”
Furthermore, returning to the text of the Second Amendment itself, the right to keep and bear arms is expressly retained by “the people,” not the states. Recently the U.S. Supreme Court confirmed this view, finding that the right to keep and bear arms was an individual right held by the “people,” — a “term of art employed in select parts of the Constitution,” specifically the Preamble and the First, Second, Fourth, Ninth and Tenth Amendments. Thus, the term “well regulated” ought to be considered in the context of the noun it modifies, the people themselves, the militia(s).
The above analysis leads us finally to the term “well regulated.” What did these two words mean at the time of ratification? Were they commonly used to refer to a governmental bureaucracy as we know it today, with countless rules and regulations and inspectors, or something quite different? We begin this analysis by examining how the term “regulate” was used elsewhere in the Constitution. In every other instance where the term “regulate” is used, or regulations are referred to, the Constitution specifies who is to do the regulating and what is being “regulated.” However, in the Second Amendment, the Framers chose only to use the term “well regulated” to describe a militia and chose not to define who or what would regulate it.
It is also important to note that the Framers’ chose to use the indefinite article “a” to refer to the militia, rather than the definite article “the.” This choice suggests that the Framers were not referring to any particular well regulated militia but, instead, only to the concept that well regulated militias, made up of citizens bearing arms, were necessary to secure a free State. Thus, the Framers chose not to explicitly define who, or what, would regulate the militias, nor what such regulation would consist of, nor how the regulation was to be accomplished.
This comparison of the Framers’ use of the term “well regulated” in the Second Amendment, and the words “regulate” and “regulation” elsewhere in the Constitution, clarifies the meaning of that term in reference to its object, namely, the Militia. There is no doubt the Framers understood that the term “militia” had multiple meanings. First, the Framers understood all of the people to be part of the unorganized militia. The unorganized militia members, “the people,” had the right to keep and bear arms. They could, individually, or in concert, “well regulate” themselves; that is, they could train to shoot accurately and to learn the basics of military tactics.
This interpretation is in keeping with English usage of the time, which included within the meaning of the verb “regulate” the concept of self- regulation or self-control (as it does still to this day). The concept that the people retained the right to self-regulate their local militia groups (or regulate themselves as individual militia members) is entirely consistent with the Framers’ use of the indefinite article “a” in the phrase “A well regulated Militia.”
This concept of the people’s self-regulation, that is, non-governmental regulation, is also in keeping with the limited grant of power to Congress “for calling forth” the militia for only certain, limited purposes, to “provide for” the militia only certain limited control and equipment, and the limited grant of power to the President regarding the militia, who only serves as Commander in Chief of that portion of the militia called into the actual service of the nation. The “well regula[tion]” of the militia set forth in the Second Amendment was apart from that control over the militia exercised by Congress and the President, which extended only to that part of the militia called into actual service of the Union. Thus, “well regula[tion]” referred to something else. Since the fundamental purpose of the militia was to serve as a check upon a standing army, it would seem the words “well regulated” referred to the necessity that the armed citizens making up the militia(s) have the level of equipment and training necessary to be an effective and formidable check upon the national government’s standing army.
This view is confirmed by Alexander Hamilton’s observation, in The Federalist, No. 29, regarding the people’s militias ability to be a match for a standing army: ” . . . but 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 use of arms, who stand ready to defend their rights . . . .”
It is an absolute truism that law-abiding, armed citizens pose no threat to other law-abiding citizens. The Framers’ writings show they also believed this. As we have seen, the Framers understood that “well regulated” militias, that is, armed citizens, ready to form militias that would be well trained, self-regulated and disciplined, would pose no threat to their fellow citizens, but would, indeed, help to “insure domestic Tranquility” and “provide for the common defense.”
While addressing a town meeting in Preston Connecticut on November 26, 1787, James Madison stated:
“It is our ardent wish that an efficient government may be established over these states so constructed that the people may retain all liberties, privileges, and immunities usual and necessary for citizens of a free country and yet sufficient provision made for carrying into execution all the powers vested in government. We are willing to give up such share of our rights as to enable government to support, defend, preserve the rest. It is difficult to draw the line.
All will agree that the people should retain so much power that if ever venality and corruption should prevail in our public councils and government should be perverted and not answer the end of the institution, viz., the well being of society and the good of the whole, in that case the people may resume their rights and put an end to the wantonness of power.
In whatever government the people neglect to retain so much power in their hands as to be a check to their rulers, depravity and the love of power is so prevalent in the humane mind, even of the best of men, that tyranny and cruelty will inevitably take place.”
Following the French and Indian War, England increased taxes and stationed a large army in the colonies. On April 3, 1769, the Boston Evening Post announced that colonial authorities urged the citizenry to take up arms. In reply to the claim that this request was unlawful, the newspaper observed that:
It is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms as expressly recognized by the Bill of Rights, and who live in a province where the law requires them to be equipped with arms, are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.
Shortly after the “Boston Tea Party,” British soldiers, led by General Gage, attempted to disarm the colonists. The British Parliament banned all exports of muskets and ammunition to the colonies and began seizing the colonists’ weapons and ammunition.
The British efforts to disarm the colonists hardened American resistance. At that point, the colonists began to form the “minutemen,” a nationwide select militia organization.
In February 1775, a colonial militia prevented the British from seizing weapons at an armory in Salem, Massachusetts. Two months later, the colonists defeated British troops at Concord. Distinguished colonial leaders, such as George Washington and Samuel Adams, strongly influenced the organization of these local militias.
The “militia” which won the Revolutionary War consisted of all who were treated as full citizens of the community. George Mason stated, “Who are the militia? They consist now of the whole people.”
Similarly, the Federal Farmer referred to a “militia, when properly formed, [as] in fact the people themselves.”
The individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor in the colonists’ victory over the British army in the Revolutionary War. Without that individual right, the colonists never could have won the Revolutionary War. After declaring independence from England and establishing a new government through the Constitution, the American founders sought to codify the individual right to bear arms, as did their forebears one hundred years earlier in the English Bill of Rights.
The Ratification Debates:
A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”
Noah Webster similarly argued:
“Before a standing army can rule the people must be disarmed; as they are in almost every kingdom 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 that can be, on any pretense, raised in the United States.”
Richard Henry Lee’s view that a well regulated militia was the entire armed populace rather than a select body of men was reiterated by proponents to a bill of rights. As “M.T. Cicero” wrote to “The Citizens of America”:
“Whenever, therefore, the profession of arms becomes a distinct order in the state, the end of the social compact is defeated. . .”
No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and the soldier in those destined for the defense of the state. . . . Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.
George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia.”
He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.”
Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.
The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights” which he proposed to be added to the Constitution.
The framers also saw an armed populace as the safeguard of religious liberty. Zachariah Johnson told the Virginia convention their liberties would be safe because the people are not to be disarmed of their weapons. They are left in full possession of them. The government is administered by the representatives of the people, voluntarily and freely chosen. Under these circumstances should anyone attempt to establish their own system [of religion], in prejudice of the rest, they would be universally detested and opposed, and easily frustrated. This is the principle which secures religious liberty most firmly. The government will depend on the assistance of the people in the day of distress.
Patrick Henry, also in the Virginia convention, eloquently argued for the dual rights to arms and resistance to oppression: “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.”
Thus, the federalists agreed with Blackstone that an armed populace was the ultimate check on tyranny.
While both Monroe and Adams supported ratification of the Constitution, its most influential framer was James Madison. In The Federalist No. 46, he confidently contrasted the federal government of the United States to the European despotisms which he contemptuously described as “afraid to trust the people with arms.” He assured his fellow citizens that they need never fear their government because of “the advantage of being armed.”
Many years later, Madison restated the sentiments of The Federalist No. 46 by declaring: “[A] government resting on a minority is an aristocracy, not a Republic, and could not be safe with a numerical and physical force against it, without a standing army, an enslaved press, and a disarmed populace.”
Although on the other side of the ratification debate, Anti-Federalist Patrick Henry was unequivocal on the individual right to bear arms. During the Virginia ratification convention, he objected to the Constitution’s inclusion of clauses specifically authorizing a standing army and giving the federal government control of the militia. He also objected to the omission of a clause forbidding disarmament of the individual citizen:
“The great object is that every man be armed. . . . everyone who is able may have a gun.”
By January of 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. The Pennsylvania convention, for example, debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia.
The revised amendment on the right to bear arms now read:
“That the people have a right to bear arms for the defense 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 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.”
The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification.
Samuel Adams proposed that the Constitution:
Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.
Other states which had not yet ratified the Constitution followed the Maryland convention’s practice of ratifying the Constitution while submitting proposed amendments. The New Hampshire convention, for example, adopted the nine Massachusetts amendments and added three others: one to limit standing armies, a second to ensure an individual right to bear arms, and a third to protect freedom of conscience.
The proposed amendment on freedom to bear arms read: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”
Drafting the Second Amendment
When the first Congress convened on March 4, 1789, James Madison, who had previously advocated passage of the Constitution without amendments, now pressed his colleagues to act on a bill of rights.
When his initial efforts failed to produce any response, he drafted his own version of a bill of rights and presented them to members of Congress on June 8 of that year.
He explained to Jefferson that he deliberately drafted the amendments to be unexceptional and therefore likely to win approval.
His version of what would later be 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.”
That Madison envisioned a personal right to bear arms, rather than merely a right for the states to organize militias, is evident from his desired placement of the right in the Constitution. Madison’s original plan was to designate the amendments as inserts between specific sections of the existing Constitution, rather than as separate amendments added to the end of the document.
Madison did not designate the right to keep and bear arms as a limitation of the militia clause of Section 8 of Article I. Rather, he placed it as part of a group of provisions (with freedom of speech and the press) to be inserted in “Article 1st, Section 9, between Clauses 3 and 4.”
Such a designation would have placed this right immediately following the few individual rights protected in the original Constitution, dealing with the suspension of bills of attainder, habeas corpus, and ex post facto laws. Thus Madison aligned the right to bear arms along with the other individual rights of freedom of religion and the press, rather than with congressional power to regulate the militia.
This suggested placement of the Second Amendment reflected recognition of an individual right, rather than a right dependent upon the existence of the militia.
At that point, the Senate took up the Bill of Rights. Unfortunately, Senate debate on the issue was held in secret, and therefore no record exists of that body’s deliberations.
The Senate form of the second amendment now described the militia not as “the best security” of a free state, but as “necessary to the security” of a free state, an even stronger endorsement than Madison’s original description. The Senators also omitted the phrase describing the militia as “composed of the body of the people.” Elbridge Gerry’s fear that future Congresses might expand on the religious exemption clause evidently convinced the Senate to eliminate that clause as well.
Even more important, however, was the Senate’s refusal of a motion to add “for the common defense” after the phrase “to keep and bear arms.”
Thus the American Bill of Rights, like the English Bill of Rights, recognized the individual’s right to have weapons for his own defense, rather than for collective defense. In this form, Congress approved the Second Amendment and sent the Bill of Rights to the state legislatures for ratification.
In retrospect, the framers designed the Second Amendment to guarantee an individual’s right to arms for self-defense. Such an individual right was the legacy of the English Bill of Rights. American colonial practice, the constitutional ratification debates, and state proposals over the amendment all bear this out. The American Second Amendment also expanded upon the English Bill of Rights’ protection; while English law allowed weapons “suitable to a person’s condition” “as allowed by law,” the American right forbade any “infringement” upon the right of the people to keep and bear arms.
In his influential Commentaries on the Constitution, Joseph Story emphasized the importance of the Second Amendment. He described the militia as the “natural defense of a free country” not only “against sudden foreign invasions” and “domestic insurrections,” but also against “domestic usurpations of power by rulers.” He went on to state that “the right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
The structure of the Second Amendment within the Bill of Rights proves that the right to bear arms is an individual right, rather than a collective one. The collective rights’ idea that the Second Amendment can only be viewed in terms of state or federal power “ignores the implication that might be drawn from the Second, Ninth, and Tenth Amendments: the citizenry itself can be viewed as an important third component of republican governance as far as it stands ready to defend republican liberty against the depredations of the other two structures, however futile that might appear as a practical matter.”
Furthermore, the very inclusion of the right to keep and bear arms in the Bill of Rights shows that the framers of the Constitution considered it an individual right. “After all, the Bill of Rights is not a bill of states’ rights, but the bill of rights retained by the people.”
Of the first ten amendments to the Constitution, only the Tenth concerns itself with the rights of the states, and refers to such rights in addition to, not instead of, individual rights.
Thus the structure of the Second Amendment, viewed in the context of the entire Bill of Rights, evinces an intent to recognize an individual right retained by the people for the sole purpose of defending oneself against a tyrannical government. The Second Amendment IS the cornerstone of the Bill of Rights, and it is that which enables the other nine to exist.
If our government attempts to disarm us, they will start the 2nd American Civil War — only this time it won’t be North verses South. It will be the forces of a standing army against a well regulated militia.
A militia more commonly known as “We The People”…
Parting Shot …
About the Author: Dan Asmussen is an avid researcher and American Patriot. To find out more about what Dan thinks and knows, please click on the link below.
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