A Brief Look at the Origins and History of the Second Amendment

The right to keep and bear arms embodied in the United States Constitution’s Second Amendment is almost certainly the most contentious and hotly debated of all the rights enumerated in the Bill of Rights. I have been active in the gun rights arena for almost a decade now, and in this book I will attempt to guide readers down the logical paths of the gun control/gun rights arguments which I followed in developing my personal belief that the freedom to own and carry the weapon of your choice is a natural, fundamental, and inalienable human, individual, civil and Constitutional right — subject neither to the democratic process nor to arguments grounded in social utility[1]. To this end I will present and then dismantle arguments that the antis[2] use to try and justify their goals . . .

I should probably take a moment here to explain the difference (to me) between things that are rights and those which aren’t. My attitude about rights can best be summed up by the old Pagan rede An it harm none, do as ye will. The Wikipedia definition states:

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people

My major disagreement with this definition is the idea that rights somehow include any sort of entitlement. As far as I am concerned while a right gives you the freedom to perform (or refrain from performing) an action it most assuredly does not include the requirement that someone else perform (or refrain from performing) an action. You have the right to worship as you choose, but you do not have a right to be provided with a church. You have the right to ‘feel safe’ insofar as you may take whatever precautions you deem needful, but you may not require me to do (or not do) anything.

The Origins of the Right to Keep and Bear Arms:

So to begin at the beginning . . . the first explicit enumeration of individual rights actually predated our Bill of Rights, Constitution and Declaration of Independence. In 1689 the English Bill of Rights specified several individual rights, including a somewhat watered down version of a right to keep and bear arms. Specifically An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown stated in its grievances that:

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom …

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

In order to rectify this, the Act enumerated this rather mealy-mouthed right to keep and bear arms:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

But however tepidly this and other rights were confirmed, this document marked a sea change in the very concept of peoples’ rights. Until the beginning of the Age of Enlightenment (or Age of Reason as it is sometimes called) it was not generally acknowledged that the people in general had rights independent of their social or economic status. Before the Enlightenment it was accepted that kings, nobles, clergy, guild masters etc. had rights, but those rights (or powers as I would call many of them) were associated with the position rather than the person.

British try to confiscate Colonists’ arms 1768 – 1776

Unfortunately, as has happened so frequently over the centuries, the politicians lied. In the mid-1700s Britain started more strictly enforcing the mercantilist laws and regulations set forth over the previous hundred years or so; limiting the colonies ability to trade with other countries and putting up barriers to manufacturing in the colonies. With the passage of the Sugar Act of 1764 and the Stamp Act of 1765 these policies started spreading hardship more widely among the colonists, leading to widespread unrest and rioting.

In 1768 rumors spread around Boston saying that British troops were being sent to suppress the riots and enforce the taxes. A group of colonists submitted a series of resolutions to Governor Gage including:

WHEREAS, by an Act of Parliament, of the first of King William and Queen Mary, it is declared, that the Subjects being Protestants, may have Arms for their Defence; it is the Opinion of this town, that the said Declaration is founded in Nature, Reason and sound Policy, and is well adapted for the necessary Defence of the Community.

Governor Gage, however, rejected the petition leading Samuel Adams (writing as A.B.C.) to write in the Boston Gazette:

It is reported that the Governor has said, that he has Three Things in Command from the Ministry, more grievous to the People, than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this Province are to be disarmed. 2d. The Province to be governed Martial Law. And 3d, that a Number of Gentlemen who have exerted themselves in the cause of their country, are to be seized and sent to Great-Britain.

Two days later British troops landed in Boston.

Over the next few years there were a number of incidents between the troops and Bostonians; the Boston Massacre being one of the most famous, but hardly the worst. Tensions heightened further with the destruction of several tons of tea at the Boston Tea Party and the consequent passage of the punitive Coercive Acts (or Intolerable Acts as the colonists called them).

Then in August of 1774 the Salem Committee of Correspondence held an “unlawful” meeting to select delegates to an upcoming convention. As a result Governor Gage ordered the arrest of 7 members of the Committee, 5 of whom refused to post bail, preferring to be jailed instead. They were not incarcerated for long, however; after approximately 3,000 armed militiamen gathered in the town center the judge, realizing the British troops were going to be leaving at some point, ordered their release. This event seems to have caused Governor Gage to realize that controlling the increasingly fractious colonists would prove difficult as long as they were armed, so he set out to try and do something about that.

Even though there was an embargo on firearm and powder shipments to the colonies, most towns (and militias) had goodly supplies on hand, usually stored in a specially built powder house (due to the volatility of black powder). On September 1st, 1774 Governor Gage sent some 260 troops up the Mystic River to Charlestown (modern-day Somerville) to seize the powder being held in their powder house and bring it back to Boston for “safekeeping”.

This action almost sparked the Revolution, but when the initial rumors of Boston being bombarded by His Majesty’s warships, Redcoats on the march, arms seizures across the state and cats and dogs living together proved false the 20,000 or so militiamen headed towards Boston returned to their homes. Although concerned enough by the colonists’ reaction to cancel another planned powder seizure (in Worcester) Governor Gage did order his troops to conduct warrantless searches and seizures of all arms and ammunition.

The Revolution was, however, sparked by an attempted arms seizure, when Governor Gage sent regulars to confiscate and/or destroy military supplies held by the militias. The first shots were fired in Lexington where the outnumbered militia retreated, allowing the Redcoats to continue on to Concord. There, however, they were met by some 500 militiamen who forced the regulars to retreat back to Lexington and then all the way back to Boston, under heavy fire the whole way.

On July 6, 1775 the Continental Congress in Philadelphia adopted the Declaration of the Causes and Necessity of Taking up Arms which stated (in part):

The inhabitants of Boston being confined within that town by the general their governor, and having, in order to procure their dismission, entered into a treaty with him, it was stipulated that the said inhabitants having deposited their arms with their own magistrates, should have liberty to depart, taking with them their other effects. They accordingly delivered up their arms, but in open violation of honour, in defiance of the obligation of treaties, which even savage nations esteemed sacred, the governor ordered the arms … to be seized by a body of soldiers …

So as can be seen here, the seizure of arms and ammunition was one of the important grievances the colonists held against the British. This, in part, led to the creation of the Bill of Rights and the Second Amendment, almost exactly 100 years after the English Bill of Rights was passed in Parliament.

The original text of what we now know as the Second Amendment was:

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.

A certain amount of shuffling and editing eventually led to the Second Amendment text with which we are all familiar:

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.[3]

The Second Amendment in the 19th Century:

For more than three-quarters of a century nothing much happened with the Second Amendment at the Federal level, but there were some state level cases. In 1837 the Georgia legislature passed An Act to guard and protect the citizens of this State, against the unwarrantable and too prevalent use of deadly weapons, which outlawed the sale and possession of:

Bowie, or any other kind of knives, manufactured and sold for the purpose of wearing, or carrying the same as arms of offence or defence, pistols, dirks, sword canes, spears, &c., shall also be contemplated in this act, save such pistols as are known and used, as horseman’s pistols, &c.

Since Georgia did not have a right to keep and bear arms specified in their constitution in the case of Nunn v. State, 1 Ga. 243 (1846) the Georgia Supreme Court ruled that the Federal right to keep and bear arms applied to the Georgia legislature:

The language of the second amendment is broad enough to embrace both Federal and State governments–nor is there anything in its terms which restricts its meaning. The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. … Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

The first real Second Amendment case to reach the U.S. Supreme Court was United States v. Cruikshank, 92 U.S. 542 (1876). The ruling in this case is often misrepresented as stating that the Second Amendment does not protect the individual right to keep and bear arms but in fact this case was more about whether the Fourteenth Amendment incorporated the Bill of Rights against the states[4]. The portion of the ruling used to argue against an individual right states:

The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution.

But by reading the whole paragraph you find it says:

The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government …

This is fully in line with the idea that the Bill of Rights does not grant people certain rights but instead protects rights with which people are endowed by their Creator. Even the most cursory reading of the document makes that obvious.

The First Amendment doesn’t say that the Constitution or Congress grants people freedom of religion, speech or assembly. It does say, though, that Congress may not pass any law prohibiting the (pre-existing) freedom to worship or abridging the (pre-existing) rights of free speech and assembly.

Likewise the Second Amendment doesn’t say: A well regulated militia being necessary to the security of a free state, the people are permitted to keep and bear arms. No, it says that the (pre-existing) right to keep and bear arms shall not be infringed.

Presser v. Illinois, 116 U.S. 252 (1886) was the next “Second Amendment” case to reach the SCOTUS, which again ruled that the BOR was impotent against the states. The Presser ruling did, however, state:

It is undoubtedly true that all citizens capable of bearing arms constitute the … reserve militia of the United States as well as of the states, and, in view of this prerogative … the states cannot, even laying the [Second Amendment] question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

Unfortunately this statement was mere dicta and not part of the ruling itself, so it does not constitute any sort of binding precedent.

The case of Robertson v. Baldwin, 165 U.S. 275 (1897) provides corroboration that the Second Amendment protects an individual right rather than a collective right. The ruling concerned seamen and whether their contracts violated the Thirteenth (involuntary servitude) Amendment. In ruling that Constitutional rights have exceptions the Court stated:

Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons

If the Second Amendment did not protect an individual right to keep and bear arms then the question of whether it could be construed as impacting laws concerning individuals carrying concealed weapons would never arise.

 

The Second Amendment in the 20th Century:

The 1920s saw Prohibition and the consequent mob warfare, complete with blazing Tommy guns, murder and mayhem. Theoretically this is what led Congress to enact the National Firearms Act in June of 1934 (I say ‘theoretically’ because Prohibition had been repealed more than 6 months earlier). What the NFA did was create a special tax for “gangster” weapons, especially automatic weapons and short barreled (a.k.a. sawed-off) shotguns and rifles[5]. Soon thereafter two moonshiners named Frank Layton and Jack Miller were arrested for possession of a sawed-off shotgun. Their case before the Federal District Court was dismissed with the judge stating:

The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States

The government appealed to the SCOTUS arguing (among other things) that:

In [the U.K. and the U.S.] the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law.[6]

The Supreme Court agreed to hear the case. Unfortunately Miller and Layton were indigent and their attorney did not have the wherewithal to appear before the court himself, so arguments were heard only from the government’s side. In a very poorly written decision the court reversed the District court’s ruling stating (in part):

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

The case was thus remanded back to the lower court. At this point all the defendants needed to do was show that a short-barreled shotgun was militarily useful (as any veteran of the WWI trenches could have testified) and, in all likelihood, that portion of the NFA would have been ruled unconstitutional. But bad luck continued to dog the case as Jack Miller was murdered a month before the Supreme Court’s ruling was handed down. Unable to afford to fight the charges, Layton pled guilty and was sentenced to 5 years of probation so the court never actually heard the case again.

Despite the fact that the Court’s ruling said nothing anywhere about either the National Guard or “state militia”, in the decades following Miller lower courts have cited the government’s collective rights theory when dismissing challenges to gun laws. For example, the Ninth Circuit in Hickman v. Block, 81 F. 3d 98 (1996) states:

The question presented at the threshold of Hickman’s appeal is whether the Second Amendment confers upon individual citizens standing to enforce the right to keep and bear arms. We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.

Oddly enough the Ninth Circuit and her sister courts never seemed to notice that the question of whether Miller and Layton were militia members was never raised. Instead the question was whether their weapon was suitable for use by the militia.

Fortunately these issues have begun to be dealt with following the Court’s rulings in District of Columbia et al. v. Heller, 554 U.S. 570 (2008) in which the Court ruled that the Second Amendment does indeed protect an individual right to keep and bear arms and McDonald v. Chicago, 561 US 3025 (2010) which incorporated the Second Amendment against the states.



[1] L. Neil Smith: Letter to a Liberal Colleague

[2] A catch-all term for those who favor gun control, from the moderate “license and register” types through the extremist “Mr. and Mrs. America, turn them all in” folks.

[3] There are actually several versions with differing punctuation and capitalization, but this is the version ratified by the states.

[4] Many people do not realize that the BOR was initially recognized as limiting only Congressional action; it was not until almost 50 years after passage of the Fourteenth Amendment that courts started using the due process clause to enforce the BOR on state governments.

[5] These are often referred to as SBS for a short-barreled shotgun and SBR for a short-barreled rifle.

[6] This has come to be known as the “collective rights” interpretation of the Second Amendment