The Historical Intent Of The Second Amendment

“The Historical Intent of the Second Amendment” John C. Davis February 6, 2001

In modern society there is a movement, which seeks to remove the liberties of a large and patriotic segment of American society ostensibly with the goal of protecting society. The liberty most directly at risk is the right to keep and bear arms as guaranteed by the second amendment of our bill of rights. Media sensationalism regarding the atrocities committed by a few of the most twisted individuals from a population of millions feeds this movement. Horrific acts are committed every day but they receive the full attention of the media if and only if those crimes are committed with firearms. The movement to disarm America does not care if these maniacs attack kindergarten students with machetes and baseball bats, or if they deliberately drive their Cadillacs over them in busy playgrounds, these horrific acts do not support their agenda. Those who are opposed to the second amendment also ignore the fact that in the majority of these crimes a single law abiding citizen could have ended the situation without the ensuing loss of life, had his or her right to keep and bear arms not been infringed upon by unconstitutional legislation. With the all out assault being waged by gun control groups on our right to keep and bear arms and the tacit support of these groups by an overwhelming majority of the media. I believe that it is imperative that freedom loving Americans understand the intent of our founding fathers when they incorporated the second amendment into the Bill of Rights. We must understand their intent if we are to protect this essential right from those who would use the irresponsible and atrocious acts of the sickest members of our society to strip us of the one freedom which ensures the remainder. The Questions “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…”. This is the original text of what was later to become the second amendment as put forward in the Madison Resolution on June 8, 1789. The Madison Resolution contained twelve articles and was submitted as the rough draft for a bill of rights. Of its twelve articles, ten (including a modified version of the one quoted previously) would be ratified by the states and become the basis of the Bill of Rights. When records concerning the possible need to amend the Constitution are researched, one almost always finds the issue of the peoples right to keep and bear arms arising. The framers of our Constitution however, considered the subject important. While going through several changes, the subject was never dropped. Our founding fathers perceived need for this amendment, as well as their intent when it was created is the focus of this document.

It is necessary to look at the list of amendments proposed by the various states in exploring the origins of the second amendment as well as their reasons for including such provisions in their proposals. It is equally important to consider the writings of the founding fathers to understand why they worded it as they did and the importance they attached to it. The third consideration regarding the perceived need for such an amendment was fears and concerns of the founding fathers including the general fear of standing armies in peacetime, the threat of invasion by a foreign power, and the possibility of corruption in the federal government. The second amendment went through several changes before being ratified. These changes have muddied the waters for those who would attempt to interpret the framers’ intent in including it in the Bill of Rights. What is now the second amendment had been the fourth of twelve in the original Bill of Rights submitted to the states. The first two of these twelve would never receive the two-thirds vote required for ratification and were removed. Changes made to what was to become the second amendment were made before its submission to the states for ratification. Once the need for this amendment is established, it is important to research the debates of the house and senate regarding its final form. By studying the debates it is possible to gain insight into what the founding fathers thought was important and why. Much of the debate focused on phrasing and the language of the amendment. By exploring the arguments it is possible to find the meaning they attached to what they obviously felt to be a critical piece of legislation. The desires expressed by the founding fathers in these debates become apparent as well as their concerns regarding government manipulation. Another area to be explored is the language and word order of the final document. The founding fathers were seldom known to be obtuse in their statements regarding the rights of man. Following a detailed study of the text of the second amendment, I contend that although the document is overly punctuated, its meaning is clear. The language and etymology of the second amendment lead to the third question about its creation. The question as to whether it was intended to protect a state’s right to form militias or a citizen’s right to keep and bear arms. This issue requires a contemporary definition of the term militia as well as a look at the sentence structure utilized in the second amendment. It becomes necessary to look at the relationship between an armed citizenry and the militia, as well as its perceived role. It is also necessary to establish which, if either, concept was subordinate to the other and whether these roles were in conflict. Why a Bill of Rights? When the Constitution of the United States was signed on September 17, 1787, and sent to the states for ratification, it lacked a

bill of rights. Delaware, the first state to ratify the document, did not forward any proposed amendments and voted unanimously for ratification. Nearly every other state convention, however, had members expressing dissatisfaction with the document. Many of those in opposition were anti-federalists who voiced concerns that the new constitution concentrated too much power in the federal government and did not protect the rights of individuals. The Constitution received the votes necessary for passage but returns from the states included various proposed amendments intended to protect the rights of the people. With an overwhelming majority of the states ratifying the Constitution but with recommendations for up to 40 amendments, it became apparent that a compromise between the federalists and antifederalists, including a bill of rights, was needed if the new government was to succeed. In 1789 President Washington recommended that congress accommodate public demands for a bill of rights, and James Madison responded by introducing the twelve amendments mentioned earlier. Concerns Regarding Government Manipulation On 17 October 1788, prior to submitting his resolution to Congress, Madison had voiced concern about the possibility of government using the Bill of Rights to take powers it was not entitled to by the Constitution. In a letter to Thomas Jefferson he approved the Idea of a bill of rights “provided it be so framed as not to imply powers not meant to be included in the enumeration.”. It was Madison’s contention that the granting of federal powers in the Constitution prohibited the government from infringing on the rights of the people since they had not been provided with the authority to do so, but by setting out a list of rights it might be construed through omission that the government had the power to effect those areas not specifically protected. On 20 February 1788, in issue 1 of “Marcus”, James Iredell voiced his concern that by enumerating those rights reserved to the states, or the people, the federal government could take upon itself any powers not thus prohibited. It was Iredell’s concern that any such list would be incomplete due to the magnitude of the task and that it would be impossible to include all powers that the government was not intended to have. Despite the concerns voiced by people like Madison and Iredell, the overwhelming desire on the part of the public pressured the federal government to draft such a bill. Ironically, Madison, who had originally been concerned about the implications of a bill of rights, had to fight for the opportunity to propose one. It was these concerns, however, which led to the incorporation of the ninth amendment which stated that the Bill of Right was not intended to enumerate all the right

of the citizen and that it should not be interpreted to mean that a citizen had no rights but those mentioned. Why Legislate an Armed Citizenry? When Madison drew up his resolution, he studied the lists of proposed amendments from the states. Several states had submitted proposals concerning the rights of the people to bear arms, the need for militias, or a combination of the two. Among the proposed amendments from Virginia was one stating, “that congress shall never disarm any citizen except such as are or have been in actual rebellion.”. The right to keep and bear arms in defense of ones self and ones nation had also been present in many of the documents from which the founding fathers had drawn their inspiration when creating the Constitution. Among the direct ancestors of our Bill of Rights was the English Bill of Rights of 1689. The right of English citizens to bear arms was covered in section seven of the Rights of the People, which stated, “That the Subjects which are protestants, may have arms for their defense suitable to their conditions, and as allowed by law.” This right was specifically included to redress the grievances inflicted by the crown when “Papists” were allowed arms while Protestants were disarmed. Various state constitutions, including those of South Carolina, Virginia, Pennsylvania, New York, and Massachusetts, also contained sections providing either a right or a requirement for citizens to be armed for the defense of self and state. The perceived need for this armed citizenry was to protect the state against the machinations of a central government whether it be in London, Philadelphia or the District of Columbia. Fear of a Standing Army The fear of standing armies was based on England’s use of military force to attempt to control the colonists. While the colonists had not been opposed to the presence of British troops during the French and Indian wars, their presence during times of peace was irksome to the colonists. The British military held itself separate and superior to colonial civil authority, and it was through these troops that George III enforced his various tax acts in the name of providing security for the colonies. One of the major charges leveled against the Crown by the colonists was that he had “kept among us in times of peace standing armies.” While the Constitution forbid the maintaining of standing armies during peacetime, it did provide the legislature with the ability to raise an army, which was to be directly under civilian control. Personal Writings of our Founding Fathers Many of the founding fathers made statements defending the people’s rights to keep and bear arms and claiming that the purpose of those arms was to keep those in power honest. The same men who

had written our Constitution and Bill of Rights warned against the disarmament of citizens. The first President of the United States, George Washington, stated, “When firearms go, all goes-we need them every hour.” Alexander Hamilton voiced his ideal of an armed populous when in issue 28 of The Federalist he wrote “…In a single state, if the persons [e]ntrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource, except their courage and despair…”. This idea of a citizen opposition to tyranny relies on the ability of citizens to acquire suitable arms for such an endeavor, and it is unlikely that our founding fathers would have intended that the government be allowed to rescind that availability, thus removing the governments only barrier to the usurpation of powers not granted it under the Constitution. Thomas Jefferson considered practice in arms an essential part of education. So integral to contemporary society was the use of arms that in a report on the University of Virginia, Jefferson recommended the practice of arms and warfare as a preferred method of exercise. Jefferson based this opinion on the gymnastics of old World schools and stated that by learning these skills at an early age, the students were more likely to retain the later in life. Political Debate Regarding the Second Amendment When Madison stood before Congress on 8 June 1798, to remind them that it was the day he had previously named for bringing forward a bill of rights as provided for in article 5 of the Constitution, his proposal initially met with resistance. Many members of Congress voiced the opinion that the new government had not had time to prove itself, and it was too early for such an endeavor. Madison, however, argued that the surest way for the government to prove its good faith to the public was to respond to their desires for a bill of rights. When Madison’s motion was carried, he proposed a series of articles he had compiled from the various states’ recommendations or their established constitutions. Madison’s resolution was then sent to the committee of the whole, where it would receive its first changes. On 22 August, the articles emerged, and the embryonic second amendment had been modified to read “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.” After two days the resolution, including this version of what would become the second amendment, was passed by the House and forwarded to the Senate for consideration.

The Senate debate on the proposed article, which would become the second amendment, is recorded in numerous sources dealing with the Bill of Rights. Much of the background material regarding this and other debates has been lost, was never recorded, or in the case of the Senate debates, was kept secret. The only comprehensive record I was able to uncover regarding senate actions on this amendment listed the various motions, which senator made them, and whether they passed. Much of what I have pieced together regarding the reasoning behind the changes made during the Senate debate is based on conjecture, later writings of those present, and a detailed knowledge of the subject. Much of this debate dealt with the exact wording of the amendment and whether or not some version of this article would be passed. While a discussion on the exact wording of the second amendment will follow, several motions made during the debates related to specific issues the senators wished to see reflected in the resulting amendment rather than matters of word choice or grammar. Wording of the Second Amendment On 4 September 1789, the Senate agreed to amend the article by dropping everything after the word infringed. While I was unable to uncover any record as to why this was done, the most probable reason is that the remainder regarding those “religiously scrupulous of bearing arms,” was covered in the article, which would become the first amendment. On 12 September the Senate voted to drop the clause, “compromised of the body of the people.” This statement undoubtedly seemed extraneous since it was part of the contemporary definition of the word militia, and it was likely dropped for the sake of brevity. I believe that had this statement remained in the amendment, its intent would have maintained far more clarity as the English language evolved. While there remains no evidence that states brevity as the Senates purpose in dropping this statement, it is the most probable option. Is One Clause Subordinate to the Other? If anyone familiar with the rule of English language usage were to look, without personal bias, at the sentence structure of the second amendment, it would not be difficult for them to discern which clause was the primary and which was the subordinate clause of the second amendment. While the clause “the right of the people to keep and bear arms shall not be infringed,” falls at the end of the sentence, it is still the primary clause. This is readily apparent because between the two clauses, it is the only one capable of standing alone as a sentence. “A well regulated militia, being necessary to the security of a free state,” is incapable of standing alone and therefore by commonly accepted rules of English grammar both in the 18th century and today is the subordinate clause. The rules of English usage from both the 18th

century and today also state that even if a subordinate clause is false, this does not negate the primary clause and thus the right of the people in this case is pre-eminent. Once the primary clause has been discerned one can look at the specific wording of it to discover its meaning. The subject is rights, more specifically “the right of the people to keep and bear arms.” In every other case regarding the Constitution or the Bill of Rights, the term “the people” is held to mean the body public, and not the states. In this case the enemies of liberty try to twist the meaning of the word militia from the subordinate clause to indicate that the amendment refers only to the states’ right to form organized militias. This in and of itself violates the grammatical rules of this sentence, as well as our founding fathers own definition of the word militia, which we can read in the embryonic version of the second amendment, which has already been covered. The action in this sentence is the passive construction “shall not be infringed.” None of these words has had a significant change in meaning since the eighteenth century when judged by dictionaries from both periods. The first three words are simple enough, so let us examine the last. The word infringed according to Webster’s College Dictionary is defined in this form to mean to defeat, invalidate or to encroach upon something, in this case the right to keep and bear arms. In breaking down this sentence it becomes readily apparent that our founding fathers intended this right to be inviolate, and the federal government was forbidden to impose limits, restrictions, or impediments upon it. Is One Clause Dependent on the Other? Since all able-bodied men between the ages of eighteen and forty-five were considered to be the militia (life-spans and the roles of women being considerably different now then they were in the 18th century), the question becomes one of how they were to be regulated. The fact that you were male, and met the age and physical requirements of the day made you a member of the unorganized militia, which had few recorded regulations. The primary regulation regarding members of the unorganized militia regarded the requirement to provide oneself with a suitable firearm for the military standards of the day. In this fashion it can be shown that the clause regarding the militia is dependent on the ability to acquire and keep arms suitable for military use. While the state has the ability to call forth the militia, the militia has been shown to be the body of the people as a whole. By the contemporary definition therefore the importance of the militia was merely stated in the second amendment to emphasize the importance of this right of the people, and it was not intended to be a statement giving the states the right to form organized militias.

Conclusion While there is no body of evidence to suggest that our founding fathers intended that the second amendment was to apply only to the rights of the states to form organized militias, there is an overwhelming amount of material, both supplementary, and structural which indicates it was meant to ensure the peoples right to remain armed according to accepted military standards without restriction by the federal government. Therefore one can only conclude that this is what our founding fathers intended even if they were unable to foresee the confusion that changes in the English language and grammar would create. I believe that had they been able to foresee these grammatical as well as societal changes they would have retained the statement regarding the nature of the militia to forgo such confusion. If one can gain anything by reading the writings of our founding fathers it regarding this issue, it would be an understanding that the second amendment was included in the bill of rights in an attempt to remove the temptation of the federal government to assume tyrannical powers, as well as a defense against foreign invaders. The enemies of the freedom hold the second amendment to be a carry over from an age when natives were considered an obstacle to progress and vigilante justice prevailed, but most have never looked at it for what it is. The second amendment is the one guarantee for the security of the remainder of our Bill of Rights, and is the best defense of our nation against all enemies foreign, and domestic.

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