The Second Amendment is, by today’s standards, one of the
most controversial of rights stated in the Bill of Rights. The Amendment
states, “A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall not be
infringed.” In
general terms, there are two distinct camps of interpretation. The first is the
individual rights camp. It says that the Amendment was written to secure the
rights of individuals to bear arms. The second group I will call the militia
camp, for it says the right to bear arms is corporate in nature, belonging to
the people as constituting a militia. In this short paper, I will argue that
neither party is entirely wrong or entirely correct. The first reading neglects
the corporate nature of Amendment and does not account for its purpose. The
second reading wrongly delimits the extent of the right to bear arms to the
militia. The thesis put forward in this paper is that the people, considered as
nation, have the right to bear arms, independent of a militia, and that this
right secures the liberty referred to in the Declaration of Independence. Furthermore, this right of the people
to carry and bear arms is vital for the protection of a free state. To that
end, a militia of the free people was crucial. Indeed, it is the creation of a
militia that is the true purpose of the Amendment.
There are various academic methods
of reading the Amendment, but, for the sake of brevity, only two of which will
be used. The first is the most obvious: to look at the historical context of
the Amendment to understand its meaning. The second is textual analysis, or
exegesis, that is, to examine the precise wording of the text (i.e., the
Amendment).
Historical Setting
Congress ratified the Bill of
Rights (the first ten amendments of the Constitution) on December 15, 1791,
merely eight years after the end of the great Revolutionary War (1783). James
Madison (1751-1836) initially proposed twelve amendments, but Congress
eventually settled on ten. To many, including Madison, the Constitution did not
do enough in itself to protect the rights of citizens of the new country. The
Constitution sealed the existence, even growth, of a form of centralized
government. Madison feared a powerful, centralized government might behave
similarly to how British government conducted itself up to, and during, the
Revolutionary War. Or perhaps some foreign force would invade the new country. It
was necessary, therefore, to put limits on centralized government, to prevent
it from any potential abuse of its power that might stop citizens from
exercising their liberties, “The Conventions
of a number of the States having at the time of their adopting the
Constitution, expressed a desire, in order to prevent misconstruction or abuse of
its powers, that further declaratory and restrictive clauses should be added”.[1]
And as stated already, the Bill of Rights had the extended application of preventing
external abuses of power, say by a foreign government.
In the case of the Second Amendment,
its import was to guarantee the right of the people to bear arms to defend
themselves in a military setting. Conversely, the Amendment prevents government
from prohibiting the people bearing arms in their own defense against an
oppressive military force. After all, it was not that long ago that the British
tried, unsuccessfully, to forbid American citizens in Boston from arming
themselves.[2] To the then colonists,
this was a brazen denial of their rights as English citizens, for in the Bill
of Rights of England, written in 1689, it states, “That the subjects which are Protestants may have arms for their defence
suitable to their conditions and as allowed by law”.[3]
In the lead up to the War, the British had killed citizens (Boston
Massacre, March 1770), and without approval had quartered themselves in
citizens’ houses (according to the Quartering Act of 1765). Such was the
importance of the militia to the War, that most likely the Patriots would not
have won without the contribution of the militia.[4]
By very briefly examining the historical setting, we were oriented in the context of the text. But to understand the text in its precise detail, we must go from historical events to exegesis of the historical text.
By very briefly examining the historical setting, we were oriented in the context of the text. But to understand the text in its precise detail, we must go from historical events to exegesis of the historical text.
Textual Analysis
There is some preparatory work necessary before we tackle
the Second Amendment in itself. As the Bill of Rights is an extension of the
Constitution, it is preferable to exegete similar concepts in that text before
we come to the Bill of Rights proper. Doing this will provide yet more
contextual clues about the Amendment’s meaning.
THE CONSTITUTION
Article 1 states:
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….
In section 15, the
militia is viewed as a federal, or national, entity, and not as a body that
fights for a given state. The national focus is made plain by the phrase, “Laws
of the Union”. It is in defense of the Union, not the states as such, that the
militia will be called forth. In that context, “repel Invasions” makes more
sense, since it would not be proper in the context of the federal Constitution
to speak of the “invasion” of a state.
It is often
stated that because it is states’ militias that make up the “militia”, that
what we are really referring to is, in the first place, states’ militias.
However, in section 16, it is again evident that the militia is a national, or
federal, body raised up to defend and serve the United States and not
individual states, or even the sum of the states. Certainly, the states have a
role in the militia, which is given to them by Congress; this role is to, in
general terms, oversee the welfare of the national
“militia.” The text implies that the various militias of states must contribute
to the one, overarching, federal militia. So, the respective contribution of
states is not immediately relevant to the purpose of Article 1. Its purpose is
to underscore the federal, or national, nature of the new federal State’s militia,
and to that end, it refers to the nation’s militia (singular) and not the
states’ various militias.
Behind this
federal reading lies a particular view of government. The new nation is not the
sum total of its states plus a president and government, which is the model put
forward in the Articles of Confederation (1777). The new nation is, on the
contrary, a singular whole, which is comprised of various states. The Union and
the whole trumps individualism of any kind.
In Section
2:1 of the Constitution, it states:
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 called into the actual Service of the United States….
The federal nature and purpose of the militia is acutely
conspicuous in the statement above. Only the president shall command the
militia. The militia is just another federal organ, and is consequently juxtaposed
to the United States’ Army and Navy. The assumption is that all these federal
organs are called together into federal service; there is in this no thought of
the militia existing independently of the military; nor should we say that the
military controls the militia; or that the militia belongs to the military. The
point is that the militia is one part of the ‘body’ called the United States,
to which belongs the military, also.
I hope the
reader can see a kind of order of interpretation: states’ militias are assumed to exist;
it is these states’ militias that combine to make one federal militia governed
by the president, separate to the military, yet belonging to the one ‘body’ of
the United States. A similar method of interpretation is behind Second Amendment.
Now we will look at the Second
Amendment text.
THE SECOND AMENDMENT
An Overview. The
Amendment states:
A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed.
The
two readings. Grammatically,
there are two primary ways this text is read:
1)
The
Militia Reading: “Due
to the necessity of a militia to provide security for the nation, the people
have the right to keep and bear arms.” This reading delimits the right of the
people to bear and keep arms: the right to keep and bear arms is solely to the
end of maintaining a national militia.
2)
The
Individualistic Reading:
“American citizens may keep and bear arms as an inviolable right. This right is
necessary to furthering the security of the nation via a national militia.”
Which reading is correct? The Militia Reading (MR) has a
difficult time at the outset. It is the right of the people to keep and bear
arms that shall not be infringed. On the face of it, the MR implies constant
violation, or infringement, of a right to bear arms by the people, for it
delimits the bearing of arms to serving in the militia only.
As a counter-argument, MR responds that it has the advantage
syntactically. The placement of, “A well regulated Militia” at the beginning of
the sentence gives to it a defining role, and demonstrates what the Amendment
is actually about, namely, a well regulated militia. That being so, the right
to bear arms is tied exclusively to establishing a militia.
The MR is correct to insist that the purpose of the Amendment
is to establish the existence of a national militia for the safety of the free
State; and that the purpose of the Amendment is not to defend the individual’s
right to bear and carry arms. The syntax is indeed rather jarringly and
woodenly conceived in order to leave the reader with no illusions as to its presence;
that is, the Amendment is unequivocally written to pronounce the necessity of a
well-regulated militia, and thus the Amendment begins in such an awkward
fashion.
Even so, it is one thing to discover the purpose of the
Amendment, it is quite another to unveil the scope or extent of the phrase, “the
right of the people to keep and bear Arms”. The MR believes that the “people”
are co-extensive with the “Militia.” From a grammatical viewpoint, this is
highly unlikely. If the writer wished to say that the existence of a militia
presupposes the prior right of the people to bear arms, he could not have used
words more suited to his purpose than those actually found in the Amendment.
However, if the writer had wished to maintain that it was the militia that had
the right to bear arms, he could not have been more unclear than the wording in
the current Amendment. To make sense of the MR, it is necessary to insert
“militia” at some point into the right’s clause. Something like the following
should have been written in that case, “the right of the people to keep and
bear Arms for the Militia shall not be infringed.”
Moreover, the MR does not require the phrase “the people”. It
becomes tautologous in that schema. Why refer to the “people” when it is
assumed that the militia are the people? And why court confusion over one’s
meaning by adding the term “people”?
Thus, grammar, syntax, and logic demonstrate that “the right
of the people to keep and bear Arms” is not co-extensive with the right of the
militia.
The Individualistic Reading (IR) suffers, too. The MR has
rightly directed us to the corporate language of the Amendment. Notice how it
is a “militia” not “militias”, and that the militia is necessary for the
security of the free “state”, not free states. Look, too, at the comment that
it is the “right”, not rights, of the “people”, not peoples. The MR says that such
language underscores that the Amendment is federal, or national, in scope, and
does not extend, properly speaking, to individual rights. To put this another
way, it is not the rights of individuals which is at center here, but the right
of the people, or nation, to furnish a national militia.
To a certain extent, the MR is correct, for the Amendment’s
nature is federal and national, and not individualistic. It is proper to say
that the Bill of Rights taken in sum, that is, all the Amendments put together,
gives to American citizens various rights. Nonetheless, the purpose of the
Second Amendment is not individual rights to bear arms, but the furnishing of a
well regulated militia. Even then, it is not “individual rights” to bear arms
that are afforded, but a “right” to the “people” to bear arms is given. This
may seem like splitting hairs, but the difference has a major implication. The
right, here, is a national, or people’s, right; it is not a right given to the
ordinary citizen in and of himself or herself. The issue at stake is the safety
of the nation, not merely the welfare of individuals or separates states.
Consequently, it is the people as a whole that are demarcated by the right, and
not individuals.
An
Exegesis. An exposition
of the various phrases of the Amendment draws out the interpretation offered in
this paper.
“A well regulated Militia.” The
need of a federal, national militia, well regulated and provided for, has
already been discussed in the Constitution. To paraphrase the Amendment, “You
cannot have a national militia
without the nation’s right to bear
arms.”
“being necessary to the security”. This phrase underscores the previous point,
namely, that the purpose of the Amendment is to ensure the safety and security
of the nation; to that end, a militia is vital, and, by extension, the right of
the people to bear arms, too.
“of a free state.” The federal, or national, nature of
this militia is brought out by the phrase, “free State”. Contrast this to the Declaration of Independence. At the time
of its creation, there was no united nation, merely the sum of the colonies or
states. The Declaration comments, “to
do all other acts and things which Independent States may of right do”, and,
“the United Colonies are, and of right, ought to be free and independent
States”. By the time of the Bill of Rights, we are dealing with the United
States as a formal body or nation. Thus, the term “state” means “nation,” just
as it does in the Constitution 1:8, “…from any King, Prince, or foreign State.”[5]
The insertion of “free” is to emphasize the natural condition of a state over
against an unnatural occupation, or invasion, of that state.
“the right of the people”. The national nature is brought out
here, too, in that it is a “right”, not rights, that is afforded the people.
More pointedly, it is the “right of the people”,
not “peoples’” or “states”, further underlining the national dimension.
As to “the people”, it is the classic meaning
of “nation” that is meant here, as in, “We the people of the United States”.
More specifically, “people” is used to
designate the body of citizens who constitute the United States; it is used in
the same manner in the 1st, 4th, 9th, and 10th
Amendments. There is no United States, no government, no militia, without the
people. The United States was a “people” driven democracy, not a government led
one. The people were the United States. Also, because these rights are real and
relevant to the daily lives of Americans, they were given to the people, and
not to the government, militia, or to the nation or state. So, we must see that,
“people” is counterpoised to the government: the right is given to the people
in the context of limiting the authority of government.[6]
Any hope of the MR succeeding is
scuppered due to “people” consistently having a wider application and meaning
in the Amendments and the Constitution itself.[7]
There is no more basic definition of the United States than its “people.” The
government may fail, but the people may prevail via a well regulated militia.
“to keep and bear arms”. The people have a right to keep arms
and to bear them. We can say what this does not look like. The text is not
telling us that in the first place the militia has a right to keep and bear
arms. This is not a right afforded to the militia in itself. It is a right
afforded to the people, who are distinguished from the militia. It is therefore
wrong to state, as some have, that “militia” and “people” are synonyms.[8]
We must remember that the particular function of the “people” in the
Constitution is that it is the sole constructor of justice and the only
provider of a common defense (see its Preamble). In other words, the “people”
represent the whole of the United States, whereas “militia,” “president,” “army,” “navy,”
“congress,” etc., are merely categories of the people. The people have a right
to bear arms in order to constitute the militia. The people also have a right
to keep arms. The arms are not provided by the militia as militia, nor by
government, for that matter; arms come from the people itself.[9]
This is precisely what one would expect, given that the Bill of Rights was
created to protect against an overbearing government, which would include its
military.
“bear arms.” It was possible that somewhere in the
growth of this phrase that it had a purely martial meaning, and was thus
applied merely to military contexts. This seems to be borne out here, in that
it is the militia that is the subject
of the Amendment. Even so, it is not the militia that has the right to bear
arms- it is the people. And as much as the “people” may form a martial function
(apply itself as an Army, or Navy, or Militia, or a president going to war),
the “people” in its raw nature is devoid of martial import. This is the same
point as before: the people are the nation, not a category of it. Furthermore, Stephen
H. Halbrook has amply demonstrated that to “bear” an arm, or weapon, was not a
military concept around the time of the Second Amendment.[10]
“shall not be infringed.” The right of the people to have and
bear arms is inviolable. As we shall see later, the modern application of this
phrase is perhaps the most devastating.
Implications
- The Amendment’s primary purpose is to ensure the role of the
militia for the security of the state. The Amendment is not about
individual rights to bear arms. A national militia helped save the
colonies and create the new nation. Consequently, the people must be free
to bear arms to constitute the militia for the sake of national security.
Although the Amendment does indeed inform us about the right of the people
to bear arms, the right to bear arms by the people is not the purpose of
the Amendment; its purpose is to secure the safety of the nation via a
well regulated militia.
- The Amendment is concerned with a militia and not militias. It
was the nation that came together to fight against the English; it was the
“people” who defeated the Crown. It was not the various militias that
defeated the English. It was the American “militia”. Nor was it a
multitude of citizens who went to war, or even the sum-total of the
citizens who won the victory, but the people fighting together, as a
whole, forming a united, national body called “the people”, and the people
formed the “militia”.
- The Amendment is concerned with the nation and not states.
This point follows from the former. The safety of the nation and the
people is at stake here, and not the welfare of individual states, nor of
the states considered together. Nor is the concern the right of states
(plural) to raise their own militias. It was not Massachusetts that fought
the English; it was the Patriots. The Virginians did not conquer the
Crown; it was the Patriots! Thus, it was the purpose of the Constitution
to furnish a “more perfect union” for the people of the United States.
- A militia is not the Army, Navy, and probably not the National
Guard. In the Constitution, both Army and Navy are distinguished from
“Militia.” Does the National Guard (NG) equate to the militia? In some ways, yes. The NG utilizes
working men and women who are not part of a standing army. The NG, too, is
a “national” movement, as its name denotes. However, the NG today is akin
to a part-time standing army. And as the old saying goes, “If it looks
like a duck…”! Moreover, the national “militia” was comprised of the
various states’ militias. This presumes the rights of individual states to
retain a militia independent of the US military.[11]
- According to the Second Amendment, the militia has no right to
keep and bear arms. This may seem a ridiculous concept. Surely a
militia has to bear arms in order to fight. Yes it does! However, we are
discussing here what the Second Amendment teaches, not what pans out in
real life. The Amendment gives a right only to the people, not to the
militia. And even though the militia are part of the people, the militia
are not the people per se. Rather,
the people are the militia. The whole thrust of the Amendment is to give
the nation the right to defend
itself; to that end, the nation
must be allowed to bear arms and create
a militia. If we don’t put things this way, then we endanger the right of
the people to bear arms. If we say that it was the militia’s right to bear
arms, then we shift the right from the people to this thing called a
‘militia’.
- Consequently, there is no militia without the prior right of the
people to bear arms. This brings us to the crux of the matter. It is
crucial that the people had the right to bear arms in order to constitute
a militia, to defend, in turn, the nation. This right existed prior to,
preceded, the constituting of a militia, and was not circumscribed, or
determined, by a militia, therefore. Ordinary citizens had the right to
bear arms- for personal safety, for livelihood (as in hunting), and for
times when a given state was in crisis. It has been said, very often, that
the Amendment assumed the rights of individuals to do these things. Yet, there
was no need to state specifically that citizens (plural) had rights to own
guns (which are arms) to go hunting, for example. For such was a fact of
life!
- The right of the people to bear arms is arguably a fundamental
practice necessary to maintain the more basic right of “liberty.” This
contention follows from the last. In the Declaration of Independence two levels of “rights” are spoken
of. There are creational rights, rights given by our Creator, “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.” Then there are governmental rights that
secure the practice of the “Creational rights.” Specifically, there is the
“right of the people” to alter or abolish any form of government that
jeopardizes the Creational rights. The right of the people to bear arms is
interpreted by many as a natural right, therefore.[12]
- What is the relevance of my conclusions to the gun-control debate?
The Second Amendment assumes the right of the people to bear arms, to
retain guns. This is a right prior to that of forming a militia, and
indeed, necessary for forming a militia. The assumption is not only that
people can own guns, but that the ownership of guns is vital for the
security of the nation. The implication is that the people would fail in
its duty if the people did not have arms enough to form a militia in a
time of crisis.[13]
The issue of ‘gun-control’ is never raised, nor implied at any level.
Indeed, it is assumed that the people must have the right to raise the
type of arms that might be used against a proper military threat. Back in the
day, those arms included canons, bombs, and so forth. I’m pretty sure, however,
that if Washington, Jefferson, et. al.,
had access to nuclear weapons that the wording of the Amendment would be different.
In other words, the type of arms the people might use is a valid issue.
[1] Preamble to the Bill of
Rights.
[2]Stephen
H. Halbrook, “Encroachments
of the Crown on the Liberty of the Subject: Pre-Revolutionary Origins of the
Second Amendment,” http://www.guncite.com/journals/rev-hal.html.
[3] “English Bill of Rights,
1689”, The Avalon Project,
http://avalon.law.yale.edu/17th_century/england.asp.
[4] See Mark V. Kwasny, Washington’s Partisan War, 1775-1783
(Kent, Ohio: Kent State University Press, 1996), 329.
[5] We should, perhaps, see in
this phrase a development from Declaration of Independence, which refers to,
“Free and Independent States”. Obviously, by the time of the Constitution, the
colonies were now states, which were now, in their turn, a nation united.
[6] John C. Wallace, Ninth
Circuit Judge, stated:
The fourth amendment extends its guarantees to "the
people," meaning "the people of the United States." Elsewhere in
the Bill of Rights, the Framers sought to constrain the reach of the federal
government in the name of "the people." Besides the fourth amendment,
the name of "the people" is specifically invoked in the first,
second, ninth, and tenth amendments. Presumably, "the people"
identified in each amendment is coextensive with "the people" cited
in the above amendments. No contrary indication appears in either the
text or history of the Constitution.
John C.
Wallace, Ninth Circuit, 1239 (9th Cir. 1988). Cited by Stephen Halbrook, “The Right to Keep and Bear Arms under the Second and
Fourteenth Amendments The Framers' Intent and Supreme Court Jurisprudence”, Constitution Society, http://www.constitution.org/2ll/schol/jfp5ch01.htm.
[7] For the Constitution, see
the Preamble and Article 1, section 2.
[8] Another
argument put forward is that the militia was comprised of white males, and that
this point highlights the scope of the “right of the people” to extend to a
particular group only, namely, a white-male militia.
Once again, this reading
ignores the general, more universal, nature of “people”: it is the nation, and
not white males. Out of this nation, the militia is gathered, a militia of
white males (at that time).
[9] “And further, that ordinarily, when called for service these men were
expected to appear bearing arms supplied by themselves and of the kind in
common use at the time.” “United States v. Miller (No.696), May 15th,
1939”, Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/307/174
[10] Stephen H. Halbrook,
“What the Framers Intended: a Linguistic Analysis of Right to “Bear Arms”, http://www.guncite.com/journals/hal-lin.html.
[11] It is said:
Regarding the Militia Acts, Sherman, “conceived
it to be the privilege of every citizen, and one of his most essential rights,
to bear arms, and to resist every attack upon his liberty or property, by
whomsoever made. The particular States, like private citizens, have a right to
be armed, and to defend by force of arms, their rights, when invaded” ” Nicholas
J. Johnson, et. al., Firearms Law and the
Second Amendment, 2nd ed., (New York: Wolters Kluwer, 2018), 352.
[12] Johnson records George Tucker’s
comment on Blackstone’s Commentaries:
“This may be considered as the true palladium of liberty….The
right of self defence is the first law of nature: in most governments it has
been the study of rulers to confine this right within the narrowest limits
possible. Wherever standing armies are kept up, and the right of the people to
keep and bear arms is, under any colour or pretext whatsoever, prohibited,
liberty, if not already annihilated, is on the brink of destruction.” [Johnson,
Firearms Law, 355.]
[13] Richard Henry Lee, in the Federal Farmer No. 18, January 25, 1788, writes:
First, the constitution ought to secure a genuine and guard
against a select militia, by providing that the militia shall always be kept
well organized, armed, and disciplined, and include, according to the past and
general usuage of the states, all men capable of bearing arms; and that all
regulations tending to render this general militia useless and defenceless, by
establishing select corps of militia, or distinct bodies of military men, not
having permanent interests and attachments in the community to be avoided. I am
persuaded, I need not multiply words to convince you of the value and solidity
of this principle, as it respects general liberty, and the duration of a free
and mild government: having this principle well fixed by the constitution, then
the federal head may prescribe a general uniform plan, on which the respective
states shall form and train the militia, appoint their officers and solely
manage them, except when called into the service of the union, and when called
into that service, they may be commanded and governed by the union. This
arrangement combines energy and safety in it; it places the sword in the hands
of the solid interest of the community, and not in the hands of men destitute
of property, of principle, or of attachment to the society and government, who
often form the select corps of peace or ordinary establishments: by it, the militia are the people,
immediately under the management of the state governments, but on a uniform
federal plan, and called into the service, command, and government of the
union, when necessary for the common defence and general tranquility. But,
say gentlemen, the general militia are for the most part employed at home in
their private concerns, cannot well be called out, or be depended upon; that we
must have a select militia; that is, as I understand it, particular corps or
bodies of young men, and of men who have but little to do at home, particularly
armed and disciplined in some measure, at the public expence, and always ready
to take the field. These corps, not much unlike regular troops, will ever
produce an inattention to the general militia; and the consequence has ever
been, and always must be, that the substantial men, having families and
property, will generally be without arms, without knowing the use of them, and
defenceless; whereas, to preserve liberty, it
is essential that the whole body of the people always possess arms, and be
taught alike, especially when young, how to use them….
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