Political positions evolve when presented with a better argument. Do you want to take a fresh look at the second amendment debate? Do you wish to understand the opposing viewpoint better? Are you willing to discuss it and perhaps evolve your opinion? I have evolved mine, several times. What follows is my current understanding and framing of the issue.
The House Fire Analogy
In this analogy, I present both sides of the argument in a fairly equal manner but with my current opinions. This analogy touches on whether something is or is not in the Constitution, as well as states rights.
Personal Safety and Responsibility
Perhaps a good way to understand the intention of the second amendment and the debate is to study an analogy of a home fire. In all cases, the first line of defense against a house fire is those residing in the dwelling. If an able bodied homeowner accidentally starts a stove fire, he or she is not going to wait for the local fire fighters. They will attempt to put out the fire themselves.
Local Fire Departments is like Local Police
If a fire is too big you would need to call the fire department and/or rely on your neighbors for help.
Your Neighbors are the Militia
If there is not a dedicated fire fighting team ready, it’s up to the neighbors to put out the fire both in an attempt to save property, and to prevent it from spreading. The community need is both to try and save your neighbor and to protect yourself, your family, and your property. As society this has evolved, most communities rely on better trained professional fire fighters more than their neighbors. The need for the neighbors, militia, is rare, but exists.
No Fire Departments is like No State Guards
When the Founding Fathers wrote the Constitution, they lived at a time when there were no fire departments. Prior to the 1850s, a community might have a volunteer fire department, or not. Either way the able bodied members of the community were obligated to put out fires. This is analogous to a militia. Whether or not able bodied citizens were identified or not, that group of able bodied citizens, or “militia”, was obligated to defend the community in times of need. This general citizen obligation to both put out fires and defend the community existed whether or not the town had a fire department and/or local police.
Regulations = States Giving or Taking Power from the Federal Government
Continuing the analogy, let’s move on to regulating residents with regard to fighting fires using a simple clear example. Unless local law prohibits it, you are allowed to have a fire extinguisher in your home. The Constitution allows Congress to create any federal law that is constitutional. Congress could pass a federal law forbidding or requiring fire extinguishers in homes and/or businesses. I do recognize that forbidding fire extinguishers is an obviously bad law, but still, they could.
States too can pass an equally bad law banning fire extinguishers, or requiring them. However, if the Federal Government passed a law banning fire extinguishers, states could not pass a law requiring or even allowing them. That would be unconstitutional only because the state already agreed to the federal law in Congress. Why would such a law be constitutional? Because the constitution does not say anything about fire extinguishers nor their predecessors, buckets of water.
Definition and Intent of Arms
The debate with guns is that our Constitution does discuss something with arms and defense. The second amendment is in the Bill of Rights. Does it mean self defense or community defense? Or, both? Was its intention that one had a right to own a gun? Or, was the second amendment about community defense and purposely says nothing about self defense. If so, was this because the Founding Fathers had faith in our checks and balances? Did they want us to rely more on the default federal and state law mechanism in which state representatives in Congress, states, and towns can pass whatever gun laws they wish? Although my opinion is the later, that’s the central debate around the second amendment.
My opinion is that the intent was community defense, and our Founding Fathers intentionally did not say anything about everyone’s right to own a gun. It is clear by the writing at the time that some areas banned guns, some required them to be stored unloaded, etc. In my opinion, the Constitution skipped that part giving full authority to Congress and states to pass any gun laws they wish. Some gun advocates disagree with that assessment. They believe “keep and bear arms” means anyone can own, or “keep”, a personal weapon such as a gun as well as use, or “bear”, that said gun for its intended function of self-defense, hunting, and community defense. They also believe this has evolved to mean recreational shooting because of the well-regulated phrase which clearly means you have to practice or exercise your abilities. It’s clear the Founding Fathers meant “train as a team”, but training individually definitely contributes to the skill of the team.
Arms means new inventions like Pepper Spray
There are details too. The Constitution applies forward to new inventions. If the Constitution said something about a “bucket of water” in relation to fighting fires, then that term would carry forward through new inventions and cover fire extinguishers as well. At the time, arms meant weapons used in one-on-one combat. The typical arms one might carry of the time would be a knife, axe, sword, pike, or single shot musket. Today, arms can mean baseball bats, pepper spray, brass knuckles, better guns, etc.
Differing Urban, Suburban, and Rural Needs and Priorities
The second amendment debate is further complicated because of the differing urban, suburban, and rural needs. It’s difficult for many urban residents to understand why guns are needed at all because local and federal law enforcement is readily available–in particular the local police. On the other hand, rural residents understand the need for immediate access to guns better because their local police might be an hour away.
Urban vs Suburban vs Rural Needs
Let’s return to our analogy and think about a home fire under three scenarios: an urban apartment building, a suburban house, and a rural farm. If an apartment catches on fire, everybody is evacuated from the building and the community loss because of one apartment fire could mean many apartments are lost. Because of that extreme risk, apartments sometimes have rigid rules including no open flames like candles. Most, but not all, understand the need for such rigid rules. When this analogy is applied to gun control in urban areas, most of us understand that having too many guns in a crowded area increases risk. Some do not, but most of us do understand this and our Founding Fathers for sure understood this and implemented various gun control laws.
Many believe the need for gun control in urban areas outweighs the need for self-defense because of the speedy response of local police. This believe is not limited to the response time of local police. Other factors influence believers such as the fact that you are more likely to die from an accidental gun shot from a family member, than from an intruder.
Modern Suburban Neighborhood
Moving our analogy onto a modern suburban neighborhood. When a suburban home burns down, the residents of the home call the local fire department. Gone are the days for the need of your neighbors to pitch in. However, if the fire department is ever too busy or fails to show up, they would rely on those neighbors–that militia.
Furthermore, many prudent homeowners own a fire extinguisher. They would object to a law that banned fire extinguishers. Don’t get me wrong, both Congress and states have the right to create such a bad law, but they would object. This concept is similar to guns. Some think Congress and/or states can ban guns, some think they can’t because of the second amendment. The Supreme Court has weighed in and essentially cut the baby in half. They currently say Congress can pass some gun control laws but that the Supreme Court may need to decide if they go too far. They’ve also said that states can pass any gun control law they wish including the banning of all guns. That’s a summary of the big debate.
When Help is Not Available
To complicate things more, let’s move our analogy onto a modern rural area. When a rural home burns down, the residents of the home might call the nearest fire department, or not. The response time might not be sufficient. They might be “kind of” on their own. In that case, they must rely on their own resources and their neighbors. Many gun advocates will say this last analogy is closest to what the Founding Fathers meant.
To take this last example to the heart of the gun debate, let’s switch to self-defense. If someone comes on your rural farm property with the intent to harm you, you can call the local police or sheriff. But, if the response time of the local authorities is insufficient, and the federal or state laws prevent you from owning a gun, your only option is to protect yourself with other arms such as knives, swords, baseball bats, etc. Gun advocates would say you have a right to a gun. Others would say the state has a right to decide that and if you don’t like it, move to another state. Some, including myself, believe that the Federal Government could ban all guns, but that it would be a bad law if they did. It’s clear states could ban all guns within a state. At any rate, this represents the debate.
What do the words of the second amendment mean?
Second Amendment Text:
“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.”
Now, my, perhaps flawed but well-researched, interpretation:
“Militia” means the able bodied citizens within a community identified and governed by the state. The goal of a militia is the protection of its own city, or state. It never meant to any founder the right of a group of citizens within a city to rebel against a properly functioning city or state. State militias evolved into each state’s National Guard and Naval Militia as well as various state, county, and city run police forces.
Militias are part of the founding fathers’ ideas of checks and balances. The founding fathers did not want and even feared a standing national army. At the time, it was common for a king to use his army to squash the desires of a town taking away their freedom to make their own decisions. Militias and police forces were to supplement a standing national army so that the need for the military within the borders of the United States was lessened. This is one of the concepts that lead to the Posse Comitatus Act which forbids U.S. military forces on American soil. Yes, it was passed after the civil war in 1878, but its history goes back to the founding fathers and the abuses of armies by the Kings prior.
“Well regulated” means disciplined, trained, and exercised. It also means the state has the right and obligation to control arms and militia in order to protect the citizens from violence.
For example, article 28 of Delaware’s Declaration of Rights which preceded the Bill of Rights by more than a decade did not have a right to bear arms and explicitly had a gun control law right in their constitution which acknowledged that the mere carrying of guns caused violence.
“ART. 28. To prevent any violence or force being used at the said elections, no person shall come armed to any of them, and no muster of the militia shall be made on that day;” –1776
It’s clear that “well regulated” means the state can require tests and training, and establish any laws we want without limitation to the extreme nature of the laws. This include collecting data on every gun in America, and gun usage. This includes banning all guns that are not part of a standing army, nor police force, nor required for reasonable self-defense.
Well Regulated Militia
“Well regulated militia” means a well-trained state-run force used for defending the state. It clearly means the guns are for use defending the state with a militia. The need for defense against foreign invaders has lessened and evolved into today’s U.S. Military which was established in 1789, as well as the various police forces.
Being Necessary to the Security of a Free State
“being necessary to the security of a free state” means the guns, U.S. Military, and militias sole purpose is to protect America from foreign powers and uprisings. I reject the idea that the founding fathers believed the citizens of America had a right to overthrow America itself. The U.S. Military is for defending against foreign and domestic powers that wish to do us harm. Militia’s were originally intended to quash uprisings against the government or its people.
The “free state” verbiage not only means defending America from foreign powers, but also quashing uprising. It does not mean the state can be overthrown.
Modern interpretation of the original intent is as follows. In order to be truly free, you have the right to personal safety from uprisings such as a gang or an individual that intend you harm. This means you have the right to quick and easy access to arms–meaning weapons including knives and guns, but perhaps the local police substitute–maybe. This not obviously in the constitution and requires interpretation. That’s what the Supreme Court is for.
Personally, I do accept the District of Columbia v. Heller supreme court case which established the right to own a gun for personal safety and self-defense. I just do not think the second amendment in any way has anything to do with that. I think the second amendment is about community-defense, but I acknowledge others believe differently.
Furthermore, I agree that the new modern interpretation means that a regulation cannot require a trigger lock, nor disassembly because it impedes your right to self-defense. The second amendment establishes the absolute right to regulate guns in any way we as a society wish. But, the District of Columbia v. Heller decision introduces the concept of limits because of the need for self-defense. For example, we can’t have a regulation that says you can own a gun, but not bullets because that would prevent you from using it for self-defense. At least not until the Heller decision is overturned. However, we can have a law that requires a process to get bullets.
The Right of the People to Keep and Bear Arms
“the right of the people to keep and bear Arms” follows, and is tied to well-regulated. It’s clear this phrasing is intended to mean that the Federal Government does not have the right to disarm a sect of people. They cannot unfairly pick on one group or another whether that desire to disarm them is because they are in a particular area, have certain beliefs, or otherwise.
Keep and Bear Arms
Now let’s focus on the original intention of “keep and bear arms” which was two fold: a tax, and a draft. Its intention is to skip the expense of the state having to buy guns for the self defense of the town, state, and country. This is proven in Hamilton’s essay 29 in the Federalist Papers in which he discusses the expense of the state, “…annual deduction from the productive labor of the country…”. He goes on to equate this tax of the time for the 13 colonies to a million pounds annually.
The second meaning of “bear arms” at the time meant that able bodied white men were to be ready to serve unless they had conscientious objection. It is clear at the time that there was a strong need for a community of people to rise up to defend themselves.
The word “arms” has two original meanings. For the protection of the state, it meant weapons of war to be used when the militia is called upon by the state to defend the state. This meaning evolved into weapons used by the State Guard and other state agencies and is largely no longer part of the debate. “Arms” also meant weapons carried day-to-day for self-protection as allowed by law. This includes weapons you can easily carry with you while performing your daily routine. This would include arms such as knives, swords, and muskets. Today this would include stun guns, pepper spray, etc.
Where is the limit? What weapons can someone carry? What weapons are allowed to protect your home? I think the bottom line is that states and Congress can pass any gun laws they wish. Part of today’s debate is things like how big a blade is street legal, are large capacity magazines, assault rifles, etc. legal to own in your home. The debate also includes who has a right to buy and own guns, as well as where and how they can be bought, used, and stored. Our legal system gets to decide if a state or federal law is unconstitutional.
These concepts allow the U.S. Military to have functioning tanks, machine guns, rockets, and nuclear bombs. It also allows militias like police, the FBI, etc. to have powerful guns, but not nuclear weapons, nor rocket launchers. Finally, this allows individuals who have a right to self-defense to own a gun, but not a semi-automatic, nor large capacity clips, etc. Heck, we could even require all guns for individuals to use for self-defense be tied biometrically to the person. And, in a properly functioning democracy, I would expect regulations to fluctuate. There would be times an individual could own a large capacity clip, or machine gun. There would be times the FBI could own and use a rocket launcher. Anything we as a society agree upon.
Shall Not Be Infringed
The “shall not be infringed” is very interesting! Does it mean no matter what? Does it mean states can pass gun laws but not Congress? Or, does it mean Congress can because, after all, Congress is the states and can give any state right it wants to the “general government”, the Federal Government in Congress.
The original intent was that the standing national army should never have cause nor desire to engage a state militia. Furthermore, the founding fathers wanted the national army to fear the state militias. If the Federal government was allowed to take guns away from a state militia, then that state would not be able to defend itself from the Federal government. To do this requires Congress which requires the majority of states to agree. The second amendment is about federal vs state rights, and individual taxes levied to support the state militia. It was never about an individual or group’s right to own a gun. It was about public defense.
Is the Second Amendment Still Valid?
I do think there is a valid argument that the second amendment no longer applies to citizens except in rural areas. The taxation of your right to own a gun has moved to direct taxes that pay for police, militias, and military. It is clear the intent of the second amendment was the public defense of a city, a state, and/or the nation. Now that we have multiple standing police forces at the city, county, state, and national levels, its original intention is no longer valid. The right of the army and police forces to bear arms is clear, but I honestly do think one could argue that there is no right to bear arms at all — with no changes to the Constitution. Now, that argument might lose in court for one reason or another, but I do think it’s a valid argument.
Counter Argument: A counter-argument to it might be the “fear of a standing army” argument. Obviously, citizens could not overthrow our army because of the shear force. However, what about smaller police forces? If a local police force has arms, then individuals need them too just in case a police force goes awry (i.e. BLM type events).
Article II of the The Articles of Confederation gives all rights that are constitutional and that Congress has not specified to the states. This means, if a law at the Federal or state level is unconstitutional, it is voided. This also means that constitutional Federal laws override state laws.
The bottom line is the following:
- Congress can create any Federal law so long as it’s constitutional.
- States can create any law so long as it is constitutional and does not conflict with a federal law.
Article 2, The Articles of the Confederation:
“Article 2. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” –1777
Article 2 above in our first constitution evolved into:
- the Supremacy Clause of Article 4, Clause 2 of the U.S. Constitution,
- the 2nd amendment,
- the 10th amendment which clearly completes saying the same thing.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This law was held up in the Supreme Court case of McCulloch v. Maryland (1819). It’s clear. Congress, which represents the states, can pass any constitutional federal law they wish including laws that give or take away powers of the Federal Government.
Article 1, Section 8 of the U.S. Constitution clearly defines “militia”. There is NO DEBATE what our Founding Fathers and our Constitution says.
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
Article 2, Section 2 of the U.S. Constitution:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States”
When arguing for something they believe, sometimes people try to claim that if it’s not in the constitution, it belongs to the states. That’s just a miss-reading of the intentions of our founding fathers. Yes, it belongs to the states unless through Congress they give that power to the Federal Government, or take it away with different representatives later.
The 5th Amendment clearly treats the militia at the same level the U.S. military.
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;”
Declaration of Independence
One’s right to own a gun is not absolute. Owning guns for protection of life is one aspect of the debate which is frequently obfuscated with the enjoyment of guns such as hunting, collecting, etc. The later can clearly infringe on other people’s right to life and must be heavily regulated.
I think it is important to understand that the founding fathers fully understood and believed that government plays a major role in all of our lives and that mechanisms in the form of checks and balances were needed to guide the type of help. The amount, or quantity, of help was limited only by available resources.
It’s clear the government must pass laws that protect people, and keep people out of harm’s way. You see this idea in many Federal and State constitutional documents including the second paragraph of the first United States constitutional document, the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” –1776
Life, Liberty, and Happiness
All societies and groups of people have limits on all kinds of stuff. My right to LIFE comes before your right to have LIBERTY, which comes before another’s right to pursue HAPPINESS. This translates into the common good. These fundamental tenets are part of our American way and many societies around the world.
Notice that “Life, Liberty, and Happiness” are all capitalized and their order is significant. Sometimes enthusiasm for an issue inspires one to forget about these priorities. For common sense reasons, it is clear that your right to life is more important than another’s right to liberty, which is important than another’s right to pursue happiness.
When this concept is applied to gun laws, one’s right to own a gun for protection is a pretty important thing to consider. Not the end all, but important to your right to Life. Also important is your clear right to play with guns, or shoot them for entertainment as part of your right to pursue Happiness. Finally, it’s also clear that if your pursuit of shooting and playing with guns threatens the Life of others, then the right of Life of others takes precedent.
It’s an absurdity to claim an individual’s gun ownership and usage rights outweigh another’s right to life. The founding fathers would be appalled that aggressive gun owners and the NRA abuse and twist the words of the constitution to delay the passing of gun control laws. Our founding fathers in every time, and in every place freely passed gun control laws as needed.
I think it’s clear the second amendment’s focus is on managing an army and the various police forces. I reject the idea that the constitution guarantees your right to own a gun. It’s clear that if a state or even the Federal Government wanted to pass a law banning all guns, that law would be constitutional. The remedy in either case supporting either side of a specific federal or state law is to elect different representatives.
My Bottom Line
I think proper understanding of the second amendment is important. I own 4 guns myself and I think we can have our cake and eat it too. Meaning, we can make sure good people own as many guns as they want, and keep them out of the hands of bad guys. I believe we need federal and state laws enforcing strict gun control.
I also believe the second amendment at a minimum allows for the following:
- the government to collect gun and gun violence data in a national database,
- a national gun ownership card to regulate who has what guns, training, buying ammo, etc.,
- making laws to make it easier to take guns from bad guys, and suspected bad guys,
- serial numbers on ammo.
I hope you enjoyed this article. If I still have your attention, please continue on to my research below or switch to my overview of the National Gun Card idea — a solution I personally prefer.
*** Research and Analysis ***
The Founding Fathers documented their input in many places and relied on many existing document.
When reviewing intent, here is the list I follow to understand the intent of the founding fathers:
- U.S. Constitution (1787) — final document to kick off our country.
- Declaration of Independence (1776) — initial reason for the split.
- Bill of Rights (1789) — first rights established beyond the Constitution.
- U.S. Supreme Court Decisions with a focus on references. But, you must research each reference as the Supreme Court has always been a political body. Just not as political with lifetime appointments.
- The Federalist Papers (1788).
- The Articles of Confederation (1777) with a focus on what changed ten years later in the Constitution (1787).
- The 11 State Constitutions (1776-1783).
- Rhode Island Royal Charter of 1663 and the writings of Roger Williams who is arguably the founder of modern American society. The founder of our modern pluralistic American society led by and blending multiple languages, religions, and cultures with a focus on freedom of conscience. The government’s primary goal is to facilitate the right to life, liberty, and the pursuit of happiness.
- It’s okay to pull ideas, intent, and concerns from the constitutional debates which occurred in Philadelphia in 1787 and to a lesser degree the state debates that occurred at the same time. These debates are a good source to represent the viewpoint of white male land owning citizens–at least those allowed to participate in the debates.
- The 1689 English Bill of Rights.
- The 1215 Magna Carta.
The 13 Colonies Turned States
What follows is research into the constitutions and declarations of rights of the 13 American colonies. These documents are frequently used in Supreme Court opinions.
Two colonies (Rhode Island and Connecticut) did not need to update their freedom of rights and retained their original charters. The remaining 11 of 13 were created before the Bill of Rights. Six were created in 1776, the same year as our Declaration of Independence (VA, MA, DE, NC, PA, NJ). Two the following year (NY, GA). Followed by Massachusetts in 1780, and New Hampshire in 1783. From 1783 to 1789, the Bill of Rights was drafted and based on the existing Constitutions and Declarations of Rights.
- LINK: State and Continental Origins of the U.S. Bill of Rights
- LINK: Five Types of Gun Laws The Founding Fathers Loved
James Madison — Primary Author of the Bill of Rights
The Bill of Rights was sent to the states in 1789, and went into effect in 1791. Prior to that there is much clarity written by our founding fathers and contained in the various state constitutions.
James Madison based our Bill of Rights largely on the Virginia Declaration of Rights and other state constitutional documents of the time. He wrote The Bill of Rights a few years after John Adams wrote the Massachusetts Bill of Rights in 1780, and about 13 years after George Mason wrote the Virginia Declaration of Rights in 1776.
James Madison drew upon several common themes of the time:
- A fear of a standing army because a King, or ruler, might use the army against his own citizens.
- A citizen militia was needed in lieu of a standing army.
- The militia, or army, should be disbanded in times of peace.
- The militia, army, police at all times should be subordinate and governed by the citizens.
- The right to bear arms was needed to form a militia.
- A militia was needed to defend the state.
- The right to bear arms needs to be well regulated by the state.
Also, to a lesser degree:
- The right to bear arms was needed to defend yourself, and your property especially in unsecure towns.
- The need for gun control especially in well protected crowded communities.
Bottom line analysis:
- All indicated in one way or another that a militia is for the defense of the state.
- All except New York put the militia as subordinate and governed by the civil power. NY put its militia above the state!
- 1 of 13 declared the right to bear arms for personal protection (PA).
- 3 of 13 explicitly had a general right to bear arms to protect the state (Massachusetts, North Carolina, and Pennsylvania).
- 2 of 13 states allowed for conscientious objection to serving in the military (NY and New Hampshire).
- 1 of 13 had gun control in their constitution indicating the mere carrying of guns will lead to violence.
Virginia, George Mason
The first colony established in 1607 was the southern Virginia colony. George Mason wrote the Virginia Declaration of Rights in 1776. James Madison based our Bill of Rights largely on the Virginia Declaration of Rights.
“That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.” –Virginia Declaration of Rights, 1776
The second colony established in 1626 was the middle New York colony. New York’s 1777 Declaration of Rights did not contain a right to bear arms. It did allow Quakers to object to serving in the military:
“That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be there from excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth.” –1777.
Massachusetts, John Adams
The third colony established in 1630 was the New England area Massachusetts colony. One of our founding fathers John Adams was the principal drafter of the 1780 Massachusetts Bill of Rights, which included:
“The people have a right to keep and to bear arms for the common defense.” –MA Bill of Rights, 1780
The fourth colony established in 1633 was the southern Maryland colony. Maryland’s Declaration of Rights did not contain a right to bear arms. It does have the following militia terms:
“XXV. That a well-regulated militia is the proper and natural defence of a free government.
XXVI. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.
XXVII. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.” –1776.
The fifth colony established in 1636 was the New England area Rhode Island and Providence Plantations colony established by Roger Williams. Rhode Island did not need to create a new Bill of Rights. The 1663 Royal Charter was based largely on the text Roger Williams proposed in the 1644 charter. It was in force from July 8, 1663, until the adoption of the R.I. Constitution in May, 1843. It was easily the most progressive of all the colonial constitutions. Roger Williams founded Rhode Island on individual rights and planted the seeds that sprouted into the Bill of Rights.
“…be lawful to and for the said Governor…to nominate, appoint and constitute…military officers…for the leading, conducting and training up the inhabitants of the said Plantations in martial affairs, and for the defense and safeguard of the said Plantations;” –1663
The sixth colony also established in 1636 was the New England area Connecticut colony. Connecticut also retained its colonial charter.
The seventh colony established in 1638 was the New England area New Hampshire colony. New Hampshire’s Declaration of Rights did not contain a right to bear arms. It did allow anyone to object to serving in the military:
“XIII. No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.
XXIV. A well regulated militia is the proper, natural, and sure defence of a state.” –1783
The eighth colony also established in 1638 was the New England area Delaware colony. Delaware’s Declaration of Rights did not give the right to bear arms. It merely stated that because everybody deserves life, liberty, and property, they must pay for a police force. It also says that you must serve, or pay to skip serving.
“SECT. 10. That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expense of that protection, and yield his personal service when necessary, or an equivalent thereto; but no part of a man’s property can be justly taken from him or applied to public uses without his own consent or that of his legal Representatives: Nor can any man that is conscientiously scrupulous of bearing arms in any case be justly compelled thereto if he will pay such equivalent.” –1776.
Delaware had no gun rights in their Declaration of Rights. On the contrary, they actually had a bit of gun control law right in their constitution which acknowledged that the mere carrying of guns leads to violence.
“ART. 28. To prevent any violence or force being used at the said elections, no person shall come armed to any of them, and no muster of the militia shall be made on that day;”
The ninth colony established in 1653 was the southern colony of North Carolina. North Carolina’s 1776 Declaration of Rights did not contain a right to bear arms. It does have the following militia term:
“XVII. That the people have a right to bear arms, for the defense of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” –1776
The tenth colony established in 1663 was the southern colony of Connecticut. Connecticut also retained its colonial charter.
The eleventh colony established in 1654 was the middle colony of New Jersey. New Jersey’s 1776 Constitution did not contain a right to bear arms.
Pennsylvania, Benjamin Franklin
The twelfth colony established in 1682 was the middle colony of Pennsylvania. The Pennsylvania constitution matched our modern idea of Democracy more than any other constitution of the time. It included a list of rights that matched the Virginia Declaration of Rights.
“That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” –1776.
The thirteenth colony established in 1732 was the southern colony of Georgia. Georgia’s 1777 Constitution did not contain a right to bear arms.
*** English Input ***
1689 English Bill of Rights
The 1689 English Bill of Rights was a precursor to our Bill of Rights and is referred to in Scalia’s Heller opionion. Notice that the right to bear arms was limited by local law. In this case, the clear intention is that the King or national authority could not ban guns for one group and not another. It is clear the intention of this right was to give every able bodied white male the right to bear arms (guns, knives, swords, etc.) However, the right clearly did not apply to all citizens.
“That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.”
*** The Federalist Papers ***
The Federalist Papers was propaganda written by 3 founding fathers: Alexander Hamilton, James Madison, and John Jay. The goal of the Federalist Papers was to persuade the most resistant among the citizens to support the constitution. It is not a legal document, but can be used to backup and bolster the meaning behind the words in the constitution as well as explain the conservative side of the details not directly in the constitution. The Federalist Papers is frequently used in Supreme Court opinions.
Essay 4: John Jay
In essay 4, Jay argues in favor of the federal union. He predicts the national government will be more wise than the individual states.
Jay also argues that a national guard will be more efficient than state guards. We ended up with both!
“…place the militia under one plan of discipline, and…in…subordination to the Chief Magistrate, will, in a manner, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen…independent bodies.”
Essay 29: Alexander Hamilton
Hamilton refutes the argument that the power of Congress to regulate the militia is a threat to liberty. He even treats it as downright foolish,
Essay 29 by John Hamilton demonstrates clearly that the militia is a state-run or city-run force for defending the citizens and property of the state.
“The power of regulating the militia and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.”
“Bear arms is taxation”
Also in essay 29, Hamilton discusses the fact that “right to bear arms” was in lieu of a direct tax.
“To oblige the great body…of the citizens to be under arms for the purpose of going through military exercises…as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country to an amount which…would not fall far short of a million pounds.”
“Militias are not to overthrow the government”
Also in essay 29, Hamilton clearly supports the idea that militias are governed and subordinate to the civil government.
“If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.”
In this quote, I believe Hamilton is using “country” to mean neighborhood, town, or state. It is clear that under no circumstance is he saying that a militia is all that’s needed to defend the United States. The bolded portion of the phrase clearly indicates that the Federal Government through federal laws, if granted by Congress, rule over and regulate all militias. The remedy in either case supporting either side of a specific law is to elect different representatives.
Essay 46: James Madison
In essay 46, Madison makes a strong case for the right and need of citizens to own guns just in case the Federal Government becomes abusive. Madison insists that the United States military will never be able to conquer or suppress a militia. I think history has proven him absolutely wrong, but that’s okay, how could he possibly have predicted the power of our modern military supplied and pushed by the military industrial complex. However, this essay is strong evidence for the right to own a gun.
“It may well be doubted whether a militia…could ever be conquered by…regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition…”
*** 1787 Philadelphia Debates ***
The very long formal title is, “The Debates in the Several State Conventions of the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787 Together with the Journal of the Federation Convention”. The edition I’m using is a set of five volumes published in 1888.
The weight one gives to the debates should be less than other sources, but cannot be ignored.
New York, Supplement to the Journal
In the Supplement to the Journal, New York purposed clarifying the second amendment by adding “including the body of the people capable of bearing arms” meaning citizens capable of fighting a war.
“That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.” -1787. V1, P.328.
Rhode Island Ratification
It is clear by Rhode Island’s submission to ratify, their understanding of the second amendment was that it was for the defense of the state. They do repeat the “keep and bear arms” verbiage so they likely believed gun ownership was a right. They also support unconditional conscience objection to becoming a soldier in war.
“XVII. That the people have a right to keep and bear arms ; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state; that the militia shall not be subject to martial law, except in time of war, rebellion, or insurrection ; that standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity ; and that, at all times, the military should be under strict subordination to the civil power; that, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only by the civil magistrates, in such manner as the law directs.
XVIII. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.” -1790. V1, p. 335.
Luther Martin Letter
In the following clip from Martin’s letter, you correctly get the sense the second amendment is about defending the state. It also addresses that Congress now has power over each state’s militia and therefore the state has incentive to manage their militia well. Furthermore, Martin discusses the idea that the Federal Government can take all guns as a matter of fact (see bold).
“…if the militia was under the control and the authority of the respective states, it would enable them to thwart and oppose the general government. They said the states ought to be at the mercy of the general government…
In answer to these declarations,…the power over the militia should be taken away from the states, and also given to the general government,
…in this system we give the general government …the liberties of the states and their citizens, since we give it the right to increase and keep up a standing army as numerous as it would wish, and, by placing the militia under its power, enable it to leave the militia totally unorganized, undisciplined, and even to disarm them ;
…the citizens, so far from complaining …esteem it a favor in the general government, as thereby they would be freed from the burden of militia duties, and left to their own private occupations and pleasures.” -1788. V1, p. 372.
6 thoughts on “Understanding Both Sides of the 2nd Amendment Debate”
Good job, Mike.
You’ve added much to the article since I initially read it.
As you can imagine, I agree with much of what you say – and disagree on a few points. That’s for later, though.
It’s interesting that some states believe they have the right to nullify federal law. Missouri and California are two examples. Who knows how that will develop?
Thanks Wes. Although I’m a liberal, I’m trying to write these articles a bit more balanced with no logical fallacies. I simply want to present one or both sides, say if I’m on one side or the other, and allow others to believe what they believe — freedom of conscience!
Your article is quite extensive. Good work!
And, I’d say, the article is incomplete.
Now, this will surprise and shock many people including the NRA membership:
The 2nd does NOT give you the right to keep and bear arms.
But then, neither does the 1st give you the right to freedom of speech.
Why not? Take this challenge: Read the entire Bill of Rights and try to find the words “give” or “grant” or any such.
Hint: Such words are not there.
Every bit of the Bill of Rights is about prohibiting government infringement of any of our pre-existing civil rights.
I’m tempted to write more — a lot more — but that’ll have to wait for my own blog. For now, I suggest a careful reading of this Supreme Court Decision:
Thanks for reading. I learn stuff everyday and I appreciate hearing your differing viewpoints. I actually just finished updating the article and I now feel it’s finished. It’s definitely more complete, but the version you read was essentially the same tone.
I understand your point, but I fail to see the relevance. It seems to me that we are talking about two sides of a coin. Meaning, if the Bill of Rights says “Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…” that secures your right of freedom of speech, and your right to assemble. It’s clear as is, but also backed up by the state constitutions of the time, and the colonial charters going all the way back to Roger Williams. I’ve read all 13 colonial Constitutions, Declaration of Rights, and/or colonial charters. They seem extremely clear on this point leaving absolutely no doubt. Perhaps you can help me. What is the point or conclusion of the argument?
To me, it appears to be a logical fallacy. Specifically a red herring fallacy — a distraction. In order to believe this distraction, one has to ignore the very first paragraph of he Bill of Rights which includes the description of “declaratory and restrictive”. One would also have to ignore 150 years of clear writing prior to the Bill of Rights.
From the first paragraph of the Bill of Rights:
“…in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…”
I fail to see how any of my remarks were a distraction or red herring fallacy.
You said “Perhaps you can help me.”
I’ve already tried. Did you even glance at the Supreme Court decision I referenced? I’m guessing not; at 157 pages, it’s an “inconvenient” read but, I assure you, it’s no distraction.
My main point is that the Bill of Rights is entirely about restricting government from infringing our PRE-EXISTING NATURAL RIGHTS.
Perhaps this Wikipedia article about the BOR would be helpful: https://en.wikipedia.org/wiki/United_States_Bill_of_Rights#Second_Amendment
In that article’s “index,” or Contents, under 3. Application and text, “3.2 Second Amendment,” the opening sentence is this: “The Second Amendment protects the individual right to keep and bear arms. The concept of such a right existed within English common law long before the enactment of the Bill of Rights.”
More about this has to wait.
Hi Wes, thanks for keeping up the discussion. I referenced the Heller decision in my article, so yes, I have read the attached opinions, and I re-read Scalia’s opinion last night. As usual, I think we’re much closer than appears. Your input has made me rethink my thoughts on the second amendment and how I represent those thoughts.
For example, I added an analogy of fighting fires to the beginning that I think you’ll love. Please read that and let me know your thoughts. You may not fully agree with it, but I think it demonstrates the nuances of the second amendment without the baggage of specifically talking about the second amendment.
Your input and discussion lead me to a much better article!