What is the Point of the Second Amendment?
Interpretations that the Second ensures the right to self-defense, or the right to gun control, come from later Supreme Court rulings (which are extrapolations of the Second Amendment, and not written explicitly in the Constitution).
Yes, we can look to the old English rights bills or states’ constitutions and bills of rights to confirm the importance of self defense and fire arm ownership, but the core Constitution is focused on the militia aspect.
Furthermore, claims about the Second Amendment being ratified to preserve slavery, or the militia portion of the Second Amendment applying to rag-tag militias not organized by the state, are at best half-truths.
When in doubt we can refer to the draft and final versions of the Constitution and Bill of Rights, but there is much more than the originalist wording to consider for the full story of what the Second Amendment and its related texts mean today (including Supreme Court Rulings, the Federalist and Anti-Federalist papers, state Constitutions, and past Human Rights documents; all of which are discussed below).
Below we provide historical evidence for each of the above claims. Keep in mind we aren’t arguing against a modern interpretation that defends the right to keep and bear arms in the name of personal defense, we are simply pointing out the original intention of the Second (which is constantly muddied by our divisive modern politics and special interest groups) and how it has been interpreted over time.
TIP: This page will argue that the point of the Second Amendment is not solely “to keep and bear arms” and certainly not solely for self-defense, but instead is also to secure a free-state via a well-regulated militia. The term well-regulated militia means a state-organized working reserve of citizens who can be called upon by the state government to put down rebellions, or in dire cases, called upon by the state to put down a tyrant. It is for the defense of the state that one must be able to keep and bear arms, from a purely originalist perspective (this being true despite the stances of some who identify as “originalists” arguing that the original intent is focused on the keep and bear part).
The Second Amendment Explained: The Constitution for Dummies Series. Short, simple overview of the Second Amendment.
TIP: The Federal Government used the Second Amendment to put down uprisings quickly. Before the Constitution was even signed they were dealing with Shays’ rebellion, and the Bill of Rights wasn’t enacted until later. Given the events of Shays’ and the later Whiskey rebellion, and what is said by Jefferson and in the Federalist papers (see below), we can be pretty confident that the militias of the Second Amendment are specifically meant to be state controlled, not federally controlled like a standing army. Thus, the concept compares roughly to the original National Guard, but not as much to the current Guard. See The History of the National Guard.
Understanding the Second Amendment
The Second Amendment is sometimes thought of as protecting the right to self-defense and the right to keep and bear arms without restriction. This is a misleading interpretation of the historical intentions behind the Bill of Rights (1791) which Amends the Constitution (1787), Supreme Court rulings on the matter, other Amendments cited in “the gun debate,” and the language of the Second Amendment itself.
The Second Amendment protects both the right to keep and bear arms and the right to a well-regulated militia that can act to defend the state, like the National Guard. In the gun debate, it protects both individual “gun rights” and collective “gun control rights.” This line of thinking has long been upheld by the Supreme Court and is reflected in historical documents including the state constitutions.
Before we move on, let’s take a close look at the language of Second Amendment to make sure we remember its language; it says simply and only, in one long sentence:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” – The Second Amendment ratified on December 15, 1791.
Compare to Madison’s initial draft “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.” – Draft of the Second Amendment approved by the House August 24, 1789.
Based on the wording of the Second Amendment alone, and even on the drafted version, we could say the order of contingency of the argument works like this:
Due to the security of a Free state being paramount, a Well-Regulated Militia is Necessary. Thus, the right to Keep and Bear Arms is Protected.
In other words:
- Major Premise: The security of a free State is necessary.
- Minor Premise: [In absence of a standing army,] a well-regulated Militia is needed to secure a free state.
- Conclusion: Therefore, the right of the People to keep and bear arms, shall not be infringed.
Meanwhile, it is the Courts who have interpreted this to mean that the Right to Individual Self-Defense and the Right of the State to Regulate Individually kept Firearms is appropriate.
In other words, the wording of the Second implies that all other gun rights are contingent on ensuring the security of a free state and that the people are understood to be potential parts of a working militia ready to be called upon by the state to put down a rebellion (and thus they can keep and bare arms).
Of course, this isn’t exactly what springs to mind when we cite the Second Amendment in the modern gun debate, However, it is arguably a historically correct interpretation. That is, the government is charged with protecting both individual and collective firearm rights, as “a state’s right to self-defense via a militia” is just as important, if not more so, than “the right for any citizen to own a gun” based strictly on an original interpretation of the Bill of Rights; and arguably even based on more recent interpretations.
Now that we have a clear understanding of the wording as written, we have to consider people’s opinions (both the opinions of those who worked on the bill of rights and other rights documents, and the opinions of those who interpreted it via the Courts).
What were Madison’s intentions? What did the other Federalists and Anti-Federalist think? Which other human rights documents and constitutions did the founders of this nation build on?
We’ll look at questions like that below.
TIP: And there is always provision 15 and 16 of Article I section 8… which is pretty clear on a Militia and its purpose.
15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16: 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;
TIP: The videos on this page are very helpful in understanding the gun debate from a historical context. They include statements both for and against gun laws in America. Please note that when it comes to Constitutional scholars, the gun debate is always about gun control and never about a ban on guns.
A Well Regulated Militia: History of the Second Amendment. A talk with Professor Saul Cornell, the author of two prize-winning works in American legal history, and one of the nation’s leading authorities on early American constitutional thought.
The Second Amendment: Individual Rights Vs. Collective Rights – The Right to Keep and Bear Arms Vs. a Well-Regulated Militia
The wording of the phrase “a well-regulated Militia” is somewhat anachronistic today. The conversation about this concept tends to favor gun rights vs. gun control. However, a reading of the Second Amendment confirms that it does not explicitly ensure the right to self-defense, nor does it guarantee the right to gun control.
Despite this, the Supreme Court has upheld the right to self-defense and gun ownership (individual rights), as well as gun control measures (collective rights) over time, based on their interpretations of the Second Amendment. Meanwhile, groups like our police force and National Guard have taken on the roles of today’s militias.
Below we will provide historical evidence of the original intentions of the Second Amendment, discuss state-based gun rights and gun control laws, and review court rulings that have affected our current interpretation of the Second Amendment.
The Constitutional Right to Bear Arms Has Outlived Its Usefulness. This is a debate on gun rights, not a call for or against guns. It includes arguments for and against from some of the top gun experts in America in a debate format.
FACT: In the late 1700’s “well-regulated” meant roughly “in working order.” This can be interpreted as a type of regulation that allows for the function of the rest of the Second. In other words, despite the wording, both regulation and the right to keep and bear arms make sense with this definition. This is further backed up by our list of documentation below.
Terms Related to the Second Amendment and the Gun Control Debate
Before moving on, it will help to define a few terms related to the Second Amendment that are used in the gun control debate:
- Originalist means someone who thinks we should interpret the Constitution as written.
- Individualist means someone who favors a reading of the Second Amendment that favors individual rights, self-defense, and the right to keep and bear arms.
- Collectivist means someone who favors a reading of the Second, which favors collective rights, gun control, and the right to a well-regulated militia formed by having guns in the hands of trained citizens.
- Incorporation doctrine. The incorporation of the Bill of Rights, or “incorporation” for short is the idea that the Bill of Rights should apply to all states. Before the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court held that the Bill of Rights applied only to the federal, but not any state governments.
TIP: Prior to the 70’s and 80’s the courts mostly took a collective rights stance on the Second Amendment favoring gun laws and the security of the state, but in modern times an individual rights position is often taken favoring the individual right to keep and bear arms.
Does the Second Amendment Protect the Right to Bear Arms? Does the Second Amendment Protect the Right to a Well-Regulated Militia?
As noted above, the Second Amendment has been confirmed by the Courts to protect both the right to bear arms and the right to a well-regulated militia in defense of each state. Also noted above, this means that it protects defense of both the individual and collective, and it protects the idea that guns and gun owners can be regulated.
Below, we look at some historical facts to see that the main intent of the Second Amendment is to ensure a free state via a well-regulated militia, and to confirm the right to keep and bear arms that goes hand-in-hand with this. We will also provide historical evidence that backs up the idea that, while self-defense and gun control aren’t the primary aim of our federal Bill of Rights, they do have a historical context as well.
The Federalist Papers on a Well-Regulated Militia
We have The Federalist: No. 29 where Alexander Hamilton explains the benefit of militias over standing armies (and alongside standing armies). Hamilton clearly expresses the idea that while a tyrant could take over the U.S. and take control of a standing Army, a tyrant would be hard-pressed to take over state-organized militias. He goes on to list other benefits of a militia in defense of the state, the country, and liberty.
Madison meanwhile talks about how states rights and Federal Government balance each other in the Federalist: No. 46, specifically Madison reiterates the idea that a small fraction of armed citizenry helps to ensure a free state.
TIP: For context, the 1642 – 1651 English Civil War (AKA English Revolution) saw the House of Commons and Oliver Cromwell defeat the Royalists and Charles I securing the right for Parliament to consent to be governed. This led to religious tolerance and ultimately the Glorious Revolution of 1688, in which the whole Liberty and “rights” idea was popularized. One can say Cromwell’s army is roughly equivalent to a militia as Charles controlled the Royal army (this is one of many examples; likewise George III could order Americans in the Royal army to fight against “the rebels” during the American Revolution).
TIP: Hamilton and Madison were the two primary authors of the Federalist Papers. Madison is the father of the Constitution and sponsored the Bill of Rights. Hamilton was a war hero, the first Treasury Secretary, and a key member of the Federalist party. Madison’s ideas included checks and balances and separations of powers, he also warned of special interests; specifically, political factions and private organizations who would pervert laws in America use rhetoric over fact.
The Federalist Papers – 29 (January 10, 1788)
Most state constitutions have gun laws that refer to both militias and the right to keep and bear arms. Many of these laws date back to around or before the U.S. Constitution. The earlier ones tend to focus on collective rights and militias, while the newer ones tend to use terms focused on the individual.
- For instance Alabama and Connecticut state: “That every citizen has a right to bear arms in defense of himself and the state.”
- Montana, a comparatively new state wrote, “The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”
- Meanwhile, Massachusetts law reads, “The people have a right to keep and to bear arms for the common defense. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.”
Common threads among state gun laws include reasonable limits and regulations on guns, bits about defending the state, and of course about defending one’s self and private property. This helps show how important a well-regulated militia was, and helps to confirm the corresponding individual rights stance. See State Constitutional Right to Keep and Bear Arms Provisions.
Compulsory Militias in Early America
At the time of the Constitution’s adoption every state had a compulsory militia for most able-bodied males, The militia’s performed critical military and police functions in both the North and the South, where they were militias were often called “Slave Patrols.” The voluntarization of the militia did not occur in the northern states until the Jacksonian era, with Delaware, actually a slave state, being the first in 1831. Thus, there was an expectation that gun owners were as trained and well-regulated as they might be when preparing to enter the National Guard.
What Is a “Well-Regulated Militia”?. Really what they were saying was, “an armed, well-functioning citizenry who knows how to use their weapons is necessary to the functioning of a free state.”
TIP: There is a difference between a band of armed rebels and a well-regulated militia. Militias are like police or the National Guard, and can be called upon by the State or even Federal Government to put down insurrections and uprisings. Historical uprisings include the Whiskey Rebellion, Shay’s Rebellion, and Slave Rebellions. A fringe U.S. group that currently calls themselves a militia is not the same as the militias of early America in that it operates without legal sanction.
Patrick Henry and Slave Patrols
Patrick Henry and other founders and politicians at the time were troubled by the thought that slave patrols could be used against southern slave states by the federal government. They alleged that a concern for state’s rights was the reason the language says defense of the “state” and not “country.” There are also other debates surrounding the wording of the Constitution and Bill of Rights.
Historically, the Second Amendment of the Bill of Rights was considered as meaning to protect free states from rebel uprisings. Specifically, the southern slave owners ran slaves patrols (a sort of mix between a militia, police force, and neighborhood watch) who put down slave uprisings. The slave states rightfully feared that if their militia were under the command of a central government, they could be used against the slave states and even to free the slaves. This was not an unfounded fear since it had been done in the past and was done later by Lincoln.
Slavery WAS legal at the time, so the well-regulated militias in late 1700’s can be said to be upholding the law in defense of the state. The trained and organized militiamen had to have their right to keep and bear arms protected for this to work.
TIP: Slave patrols were meant to catch runaway slaves and put down uprisings. The term references this, not the idea that patrols were comprised of slaves.
Slave Patrols and the 2nd Amendment p1. A view on slave patrols by Thom Hartmann (a left-winger), he is joined by historians (which helps keep this video centered). See an opposing view here.
Was the Second Amendment Ratified to Preserve Slavery? Some claim the Second Amendment was ratified to preserve slavery (pointing to slave patrols which helped quell slave uprisings, and the danger they posed if commanded by the Federal Government instead of the free state). While this certainly wasn’t the only reasoning behind the Second Amendment (nor the primary one), we can’t exactly dismiss the fact that slavery and slave patrols were very real things. Even seemingly benevolent constitutional laws like the Three-Fifths Compromise are about slavery on some level. The Three-Fifths Compromise, for instance, led to the dominance of the Southern bloc until Lincoln since having slaves count as citizens resulted in more seats in Congress and more electoral votes for the pro-slavery states. It was the progressive Federalist/Whig/soon-to-be-Republicans of the time who didn’t want slaves to be fully represented as people, although it was also this group who ended slavery under Lincoln. History is complex. It is likely that some gun laws, like other laws, have racist undertones of this sort, and helped to preserve slavery in these sorts of ways, but there is a lot more to the history of the Second Amendment and gun laws than slavery or race. So yes, slave patrols were real, but preventing slave rebellions was only one of the many things that militias did in the North or South.
The History of Racist Gun Control in the United States. Are gun laws sometimes racist? It’s partially a matter of perspective, but the simple answer is “yes, sometimes.” Look at American history; we know there are racist aspects and it’s a narrow view to argue otherwise. Here is that perspective.
The History of Gun Laws and Liberty and Britain
To understand the gun debate in America, we can look to the history of British gun laws since the English Revolution (between England, Wales, Ireland, and Scotland) where it is clear there is an intention to allow men of all religions to bear arms. The Protestants, for example, wanted the right to keep and bear arms, and didn’t want Charles I or II telling them they couldn’t, as this would weaken their power and leave them open to a takeover. They had much the same reasons as the slave owners to want their militias. This helps confirm that the individual rights stance has historic significance.
From Wikipedia, “The 1689 Bill of Rights (which the Glorious Revolution resulted in) did not create a new right to have arms, but instead rescinded and deplored acts of the deposed Catholic King James II, who, as far as relevant here, forced the disarming of Protestants while extending the right to bear arms to Catholics and Protestant dissenters in addition to upholding prior legislation that limited the ownership of arms to certain social classes.”
The relevant grievance reads:
- “By causing several good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law.”
The remedy in the 1689 Bill of Rights reads:
- “That the Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.”
The English Bill of Rights established that regulating the right to bear arms was one of the powers of Parliament and did not belong to the monarch. The 1689 Bill of Rights also restricted the right of the monarch to have a standing army.”
Glorious Revolution | 3 Minute History
The Supreme Court Rulings on the Second Amendment
We also have a few key Supreme Court rulings which have more-or-less upheld the right to bear arms along with the right for this to be regulated (background checks for mental health, clarifications on individual rights versus collective rights, and the prevention of the ownership of more deadly weapons).
The Supreme Court Rulings Include (source):
1939’s United States v. Miller. 307 U.S. 174 which adopted a collective rights approach (determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun “has some reasonable relationship to the preservation or efficiency of a well-regulated militia . . . .”)
US v. Miller
2008’s District of Columbia v. Heller (07-290) which said a D.C. handgun ban that had stood for 32 years should be struck down as the Second Amendment established an individual right for U.S. citizens to possess firearms and the D.C. handgun ban was violative of that right. However, Miller was cited as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purpose.
Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purposes as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.
District of Columbia v. Heller | quimbee.com
2010’s McDonald v. City of Chicago (08-1521) which strengthened gun laws when the plaintiff in McDonald challenged the constitutionally of the Chicago handgun ban. Chicago prohibited handgun possession by almost all private citizens. In a 5-4 decision, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine. However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.
Supreme Court Clips: McDonald v. City of Chicago – incorporation of the Second Amendment
Putting the Information on the Second Amendment Together
If we aggregate the information above, we can conclude a few things with some certainty. 1) That several unanswered questions remain. 2) The two key aspects under consideration are “the right to keep and bear arms” and “a well-regulated militia.”
Because the “well-regulated” part is clearly the main intention of the Amendment, we can see how current U.S. gun laws fall short. Those with no training or intention of being well-regulated are currently able to obtain powerful semi-automatic weapons in most of the country. While our laws do a good job at ensuring the right to bear arms, the same cannot be said of their theoretical effort to ensure a well-regulated militia who would be able to form together as a unit in defense of the state.
Regulating a Militia as Per the Second Amendment
If we want to be constitutionalists rather than fans of current special interest groups and politicians, we are left with few options outside of better regulating a militia, which could technically include compulsory training within the law. In The Federalist Papers, Hamilton said that the government couldn’t force people to join a militia, but we know that both the states and the Federal Government have done this regardless.
To satisfy the call for a well-ordered militia without compulsory service, the U.S. could offer non-compulsory basic firearms training along with restrictions on guns and the acquisition of guns for those who didn’t complete the training. I’m sure there are other options as well.
Can We Ban Guns? Are Background Checks For Guns Constitutional?
Banning guns is unconstitutional; the regulation of arms, including by background checks, is constitutional. This interpretation can be gleaned by the Second Amendment alone, and has been reinforced by the Supreme Court cases we have mentioned.
This means, that while a full ban is not constitutional, legislation like the Brady Bill (Brady Handgun Violence Prevention Act) is within the bounds of a constitutional gun law. It also means there are grounds for assault weapons bans and for closing loopholes like those that gun shows use to speed up their gun sales.
A Solution to Gun Laws in the U.S.?
It may make sense for our country to mirror the guns laws of a place like Switzerland, which allows all citizens to own basic hunting weapons. All citizens, within reason, retain the right to keep and bear a list of permitted arms, while all other types of weapons must be “earned” through service, training, and permits.
Essentially the Swiss do this by creating three categories of weapons, and three classes of regulation accordingly as described here. Only those who have elected to put in the training it takes to be a well-regulated non-standing militia have the right to own the higher classes of weapons. Thus the Swiss gun owners will theoretically have performed background checks and obtained proper permits, very similar to the National Guard, and will have the skill-set and training to be called upon as a well-regulated militia.
The Swiss solution is just one of many popular solutions to gun rights and gun control, but it is little more than an example of how we may be able to address gun issues with a centered respect for rights, authority, and the Constitution.
Swiss Gun Ownership – The REAL Story