The following is chapter one of an upcoming book by Bruce Krafft:
I have often heard people complain about how “confusing” the Second Amendment’s wording is. 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. Part of that is due to its somewhat archaic construction and part of that comes from changes in language and the meaning of words over the decades. And unfortunately . . .
Part of that comes from deliberate obfuscation on the part of those working to promote and exploit any uncertainty they can in order to press for their ultimate goal of complete victim disarmament. They claim that the prefatory clause (A well regulated militia being necessary for the security of a free state) is not an explanation of why the right is important and must be protected but instead is a limitation on the main clause (the right of the people to keep and bear arms shall not be infringed).
So are there examples of Second Amendment style prefatory statement grammar we can find which would counter this argument? How about this phrase from the NH Constitution:
The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.
Or, from the Massachusetts Constitution:
The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.
Obviously the Founders set great stock in the free press, but in addition these statements quite clearly demonstrate this somewhat archaic construction of a prefatory clause followed by the operative (or independent) clause. Keeping that construction in mind, let’s look at a Second Amendment analogue. Suppose the First Amendment contained the phrase:
A well-educated electorate being necessary to the preservation of a free state, the right of the people to read and write books shall not be infringed.
Do you think anyone would argue that this means literacy and book ownership should be limited to registered voters? Of course not. Admittedly analogies are not logic; I believe, however, that this analogy is persuasive. As for those who argue that “Unlike guns, books never killed anyone” I would say Mein Kampf, The Turner Diaries, The Protocols of the Elders of Zion, The Satanic Verses, Stephen King’s Rage (originally titled Getting It On), etc.
But let us suppose for a moment that the militia clause were restrictive; what constitutes “well regulated” and who comprises the “militia”?
The antis would have you believe that “well regulated” means that the militia should be thoroughly bound by laws and strictures, but that is a more recent meaning of the phrase. To find out what it meant in the 18th century we turn to Samuel Johnson’s A Dictionary of the English Language (published in 1755). Johnson’s dictionary was considered by most to be the pre-eminent English language dictionary until the publication of the Oxford English Dictionary some 175 years later. Johnson defines regulate as:
- To adjust by rule or method
- To direct
If we look up adjust we find:
- To regulate; to put in order
- To make accurate
- To make conformable
And the definition of direct is given as:
- To aim in a straight line
- To point against as a mark
- To regulate; to adjust
Finally the Oxford English Dictionary itself defines regulated as:
- Governed by rule, properly controlled or directed, adjusted to some standard.
- Of troops: properly disciplined (Obsolete rare).
and gives the following example of its use in that sense:
1690 London Gazette No. 2568/3 We hear likewise that the French are in a great allarm in in Daupine and Bresse, not having at present 1500 men of regulated troops on that side.
We can also look at the writing of the Founders and their contemporaries to glean their understanding of the term. From a letter General Washington wrote to Major General Philip Schuyler in October of 1776:
I am unacquainted with the extent of your works and consequently of the Number of Men necessary to man them. If your present Numbers should be insufficient for that purpose, I would then by all means advise your making up the Deficiency out of the best regulated Militia that could be got. Some might likewise be useful in bringing up Supplies and fill the Places of Men who would render more Service with Arms in their hands.
Thirty years after the ratification of the Bill of Rights writers still used the phrase “well regulated” to mean properly functioning. In her Letters from Alabama on Various Subjects Anne Royall (considered by many to be the first female journalist in the country) we find the following in a letter dated January 29, 1822 written from Huntsville, Alabama:
[Huntsville] has now a population of 1300 inhabitants. Two churches have been built since I have been here; a theatre, (now burnt,) and a number of dwelling houses. … They have a very fine fire engine, and a well regulated company.
Obviously this does not mean that the fire company was thoroughly bound by laws and strictures, but rather that the firefighters were well trained and practiced to work together to fight fires.
Now that we have determined that “well regulated” means “properly functioning”, where can we look to find out who comprises the militia? The antis would have us believe that the militia is merely an obsolete term for the National Guard; hence the Second Amendment only applies to National Guardsmen. Fortunately there are numerous sources available to refute this. During the debates in Virginia on whether to ratify or reject the new Constitution which had come out of Philadelphia, George Mason (sometimes called the Father of the Bill of Rights) said:
A worthy member has asked, who are the militia, if they be not the people, of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c. by our representation? I ask who are the militia? They consist now of the whole people, except a few public officers.
During those same debates Founder Richard Henry Lee (writing as M.T. Cicero to “The Citizens of America”) explained quite explicitly just who and what constituted the well regulated militia:
No free government was ever founded, or ever preserved its liberty, without uniting the characters of the citizen and the soldier in those destined for the defence of the state . . . . Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.
In addition to these writings there is also legislative history, some contemporary to the Founding and some more recent, stating who is in the militia. The Militia Act of 1792 defined militia in Section 1:
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act.
In fact current U.S. Code contains a definition of the militia in Title 10-A Chapter 13 § 311:
a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
b) The classes of the militia are—
- the organized militia, which consists of the National Guard and the Naval Militia; and
- the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Which means that, well, pretty much everybody is in the militia.
So what now that we know who’s in the militia the next logical question is what comprised the militia’s duties and responsibilities? And for that we can turn to the Constitution, Article 1, section 8, clause 15:
[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
I freely admit that before I started studying the subject in some detail I had no idea there was any sort of public safety or civic responsibility component to the militia’s duties. Like most people I was familiar with the militia’s military duties, but in an age before police forces the militia also assisted in upholding the law. This common law precept actually dates back 500 years, to 13th century England and the Statute of Winchester which required that anyone who witnessed a crime must set up a hue and cry. All able-bodied men hearing the outcry were required cease their work and take up the chase, continuing the hue and cry from town to town until the miscreant was apprehended and turned over to the authorities.
As for suppressing insurrections and repelling invasions the militia did not live up to the time-burnished image we have of them today. As the Revolution continued, militias (who could elect their own officers) started refusing to operate outside of their home regions, and were plagued by desertion. And although the militia was instrumental in suppressing the Whiskey Rebellion, President Washington was dismayed by their poor organization, dearth of coordination and lack of trained officers and engineers. It was the performance of the militias in the War of 1812, however, which sounded their death knell. They were again reluctant to serve outside of their home states, lacked discipline and, when operating outside of their home region routinely proved unable to stand up to the British regulars.
All of this, however, while enlightening is really immaterial to the Second Amendment since, in fact, the militia clause is dependent upon and not a limitation of the operative clause.
On to the Operative Clause
So now we get to the meat of the Second Amendment:
… the right of the people to keep and bear arms shall not be infringed.
I believe I have shown that the right to keep and bear arms is not reserved to the militia, so then whose rights are protected here? For everyone except lawyers and the antis that is a pretty straightforward question: the right of the people refers to the people. To wit, the same individuals whose rights are protected in the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
And the same individuals whose right to peaceable assembly and petition for redress are protected in the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
There are in fact several contemporaneous examples where the phrase “the people” is used to enumerate what are plainly meant as individual rights. An excellent example can be found in the various articles in the Declaration of Rights found in Pennsylvania’s 1776 Constitution:
X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure …
XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments …
XIII. That the people have a right to bear arms for the defence of themselves and the state …
Similarly the Virginia Declaration of Rights (which was actually passed separately from their Constitution) states in Article III:
That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community …
And in Article XIII the Declaration states:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state …
If the term the people was meant in a collective sense, as in a group, then specifying that the militia was composed of the body of the people would be nonsensical.
In addition to these examples, the Supreme Court has actually ruled specifically that when the Constitution says “the people” it means individuals. In Dred Scott v. Sandford, 60 U.S. 393 (1856) the Court stated:
“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty.
We see this again in Adamson v. California, 332 U.S. 46 (1947) when the Court states:
The reasoning that leads to those conclusions starts with the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government…
And even though he dissented from the majority, Justice Black agreed with that interpretation:
The first 10 amendments were proposed and adopted largely because of fear that Government might unduly interfere with prized individual liberties.
Finally in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) the Court states:
While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community…
Beyond these court cases, however, lies simple logic. Throughout the Constitution “the people” are referred to as having “rights” and “powers” whereas governments have “powers” or “authority”, never “rights”. Obviously then the people referred to in the Second Amendment are not a select government entity but instead individual citizens. Tenche Coxe makes this clear in his letter of February 20, 1788 to the Pennsylvania Gazette:
The power of the sword, say the minority of Pennsylvania is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible army must be tremendous and irresistible. Who are these militia? Are they not ourselves? … Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. [emphasis in original]
So That’s Whose Rights Are Protected, Now What Constitutes ‘Keeping’, ‘Bearing’ and ‘Arms’?
While most people have no problem understanding that the phrase to keep and bear arms can and does refer to the activity of an individual, anti-gun groups like the Brady Center to Prevent Gun Violence [sic] have argued that it has an exclusively military meaning. From the group’s amicus brief to the Supreme Court in District of Columbia v. Heller:
The debates surrounding adoption of the Second Amendment, and in particular Madison’s initial proposal to the First Congress, make clear that the framers understood the right to “keep and bear Arms” to refer only to military purposes.
Unfortunately for the Bradys, this is simply not the case. For example both Connecticut and Alabama state in their constitutions’ Declaration of Rights:
Every citizen has a right to bear arms in defence of himself and the State.
Some might try and argue that defence of the State implies service in a militia but since the right specified is for personal defense as well as defense of the state that position is indefensible.
Additionally, in their statement announcing the ratification of the U.S. Constitution in 1788 the New York State delegates listed a number of rights which were not part of the Constitution, but which they felt existed despite that exclusion. Specifically:
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
Showing that they, at least, believed that the right to keep and bear arms was a right of the people separate from militia service.
However, there are numerous instances of the phrase “bear arms” being used to describe a civilian’s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the “people” [or “citizen” or “citizens”] “to bear arms in defense of themselves [or ‘himself’] and the state,” or equivalent words, thus indisputably reflecting that under common usage “bear arms” was in no sense restricted to bearing arms in military service.
As Judge Garwood’s citation makes clear the concept of keeping and bearing arms was not relegated purely to military service, but also to the fundamental right of self-defense (which we will address again later).
For the definition of keep we can turn once again to Johnson and his dictionary. The first five definitions of keep are given as:
- To retain; not to lose
- To have in custody.
- To preserve; not to let go.
- To preserve in a state of security.
- To protect; to guard.
All these definitions are very close to our contemporary understanding of the word’s meaning so the term keep really need no interpretation. To keep arms means to have them in your possession, not locked up in a militia armory and at a gun range.
So what did the Founders consider to be arms? According to Noah Webster’s 1828 dictionary arms are:
1. Weapons of offense, or armor for defense and protection of the body.
2. War; hostility (as in To take arms, is to arm for attack or defense.)
3. The ensigns armorial of a family; consisting of figures and colors borne in shields, banners, &c., as marks of dignity and distinction, and descending from father to son.
4. In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.
And according to the Online Etymology Dictionary the French word armes appeared around 1300 and meant “weapons of a warrior”.
The Bill of Rights was written in a time when the Second Amendment’s right to bear arms included a one-ball musket and maybe a long bayonet, or a one-shot handgun.
We have available today many things which were not around when the Bill of Rights was written. For example television, radio, high speed printing presses, the internet, cell phones, video cell phones, Mormonism and Reform Judaism; none of these existed in the early 1790s but are people like John and Jeff suggesting that none of these are protected under the First Amendment? Of course they are all protected, because the core right involved (freedom of the press and religion) is not affected by the instruments used to exercise it.
But even if we were to allow such limits, the fact of the matter is that people had access to far more than single shot weapons in the 1780s. There were six-shot handguns like the pepper-box revolver made by London-based firearms manufacturer Henry Nock (inventor of the Nock volley gun capable of firing simultaneously from its 7 barrels) or the Continental firm of Segallas.
We had 9-shot handguns like this one, sold by Christie’s for a little over $30,000 in December of 2006. It is described as:
A rare nine-shot flintlock repeating magazine pistol on the Lorenzoni principle, by H.W. Mortimer & Co., London, gun makers to his majesty, circa 1799-1806
Weapons using the “Lorenzoni System” (as described by ForgottenWeapons.com in a video here) first appeared in Europe around 1680. The mechanism worked by loading several shots worth of powder and ball in the frame. The operating lever loaded a ball and a set amount of powder into the chamber and cocked the locking mechanism. Obviously the machining on these weapons had to be fine enough to seal the combustion away from the remaining powder, but the design was successful enough that it appeared in long guns as well, specifically the 7 shot Cookson flintlock rifle.
Although there are no known examples of it, the Belton Flintlock was said to fire 16 or 20 balls in 16 seconds or less, the 18th Century version of “spray and pray”.
Moving away from firearms, the Austrian army fielded a 22 ball capacity air rifle good for 30 shots before the air reservoir needed changing or recharging. Many historians partially credit the survival of the Lewis and Clark expedition to the fact that they carried such a Girandoni air rifle (purchased by Lewis out of his own pocket) which they demonstrated whenever they met a new Indian tribe. With ballistics comparable to a modern day .45 ACP, its virtually silent operation and its ability to fire many shots without reloading it would have been extremely intimidating even to people who were familiar with black powder weapons, much less those who had never so much as seen a firearm.
So it is obvious that the Founders, being highly intelligent and well-educated men, must have been aware of many sorts of “high powered” and “high capacity” weapons available at that time. In addition, they were aware of the progress science had made in the previous few centuries and fully expected invention and innovation to continue, as demonstrated by the Constitution’s Copyright Clause:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Indeed it is downright insulting to claim that the Founders would have been unable to predict that there would be changes and developments in weapons, which probably explains why they used the general term “arms” instead of specifying particular weapons that were to be protected.
Okay, But What Does “Infringed” Mean?
Well going back to our friend Mr. Johnson we find his definition is:
Infrin’ge, v. a. to violate, break a contract
Well that’s a little vague so perhaps Webster’s 1828 Dictionary had a more comprehensive definition:
1. To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2. To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.
3. To destroy or hinder; as, to infringe efficacy. [Little used.]
Well that seems pretty straightforward. But maybe we should look for places where the Founders used the word and see if they meant the same thing. In the transcript of the June 8, 1789 House of Representatives’ debate on amending the Constitution we find James Madison suggesting for inclusion:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
This is followed two paragraphs later by the preliminary version of what would become the Second Amendment:
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.
During Massachusetts’ convention to ratify the Constitution, Samuel Adams proposed the following language be added:
And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defense of the United States …
I think from these we can see that our modern day version of shall not be infringed to mean is subject to reasonable regulation would not sit well with either Mr. Madison or Mr. Adams.
Okay So We’ve Got the Meanings of Each of the Words, but What Do They Mean When Put Together?
Putting all of these different words together, what does the Second Amendment actually mean? We are now departing from legalistic, historical and linguistic analysis and delving into my personal philosophy regarding the meaning of the Second Amendment, which, some of you may have surmised (given my penchant for quoting L. Neil Smith’s 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) is quite rigorous.
The Founders believed that a well-trained, properly functioning militia was essential to protecting the nation and preserving citizens’ liberty. As time passed, however, it became obvious that in practice the militia was ill-trained, undisciplined and poorly led which resulted in the creation of a standing army. But if we no longer require a militia, does that mean that the antis are right when they says that the Second Amendment is an outdated relic that should be dumped onto the ash heap of history?
Of course not! First of all, maintenance of a militia was only one of many reasons for having a Second Amendment. Secondly, despite many peoples’ belief to the contrary the Bill of Rights does not give us any rights.
Periodically (especially after a highly publicized mass shooting) there will be calls for a repeal of the Second Amendment. Supporters of this idea apparently believe that getting rid of the Second Amendment means that the freedom to own and carry the weapon of your choice will somehow go away. They are operating under the delusion that the Bill of Rights grants people rights; it does nothing of the kind. The Bill of Rights protects rights with which people are endowed by their Creator. Even the most cursory reading of the document should make that obvious. Let’s parse the First amendment, shall we?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble … etc.
Note that Congress is not creating these rights; the free exercise of religion, the freedom of speech, the press and assembly are all presumed to already exist. After all, if people did not already have these rights then there would be no need to prohibit Congress from infringing them.
How about the Fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … etc.
There it is again; the [already existing] right of the people to be secure in their persons … etc. shall not be violated. Just by virtue of being a human being you have the right to be left alone and not have government nosies snooping through your mail, phone records, searching your house, etc.
Likewise, the Second Amendment doesn’t say: A well-regulated militia … etc., the people are granted the right to keep and bear arms. No the way it’s worded presupposes that the people already have the right to keep and bear arms. So if it is a pre-existing right and that right shall not be infringed what gun laws are permissible?
How about, none?
The sole exception I would be willing to grant is that someone who is in some sort of locked down facility, be it a prison or a ward for the dangerously insane, should not have access to weapons. In other words, to quote National Gun Rights Examiner David Codrea: “If a person can’t be trusted with a gun then they can’t be trusted without a custodian.
“But, but, but . . .” I hear someone spluttering in the background “surely you don’t mean criminals should have guns?!?” But, but, but . . . I do mean precisely that, and there are several reasons for my belief. First and foremost is the fact that there’s a difference between a malum prohibitum and malum in se law, especially as regards gun control. Malum prohibitum literally means wrong (or evil) because prohibited while malum in se means wrong/evil in and of itself. A good example of mala prohibita laws is those regarding so-called “assault weapons”; the fact that your weapon has a flash-hider, a telescoping stock or a bayonet lug isn’t something that’s wrong all by itself. Laws against shooting someone (outside of DGUs) are good examples of mala in se laws because harming someone else is obviously wrong in and of itself. Got it?
The primary purpose of mala prohibita gun laws isn’t to punish bad behavior, but to prevent it. Laws against felons possessing guns are an excellent example of this. The idea behind these laws is that they will prevent crime by preventing access to one of the tools criminals use. The problem is that when you pass laws which are primarily focused on preventing some sort of crime and they don’t work, the laws’ proponents will say that the laws need to be made stricter or some “loophole” or another needs to be closed, when the fact of the matter is they should just be repealed.
I have often suggested that since gun control laws don’t work, they should be repealed. One of the two standard retorts I get from the antis is “well since laws against murder don’t stop all murders should we just go ahead and repeal them?” This is why I explained the difference between mala prohibita and mala in se laws; although they do have a deterrent effect, the primary purpose of laws against murder is not to prevent murders but rather to punish people who commit them.
Most gun control laws, however, aren’t written with an eye towards punishing bad behavior but rather trying to prevent it. As I mentioned earlier, various “assault weapon” laws are good examples, as are background checks, prohibitions on felons or domestic offenders having guns, bans on concealed carry and bans on guns in certain locations (like schools, churches, government buildings, etc.); none of the proscribed items or behaviors actually cause any harm. Instead they are viewed as being precursors to criminal behavior.
Second, the right to self-defense antedates the Constitution, the Magna Carta, Hammurabi’s Code, the Bible, written language, hell it even antedates spoken language because even animals have the right to defend themselves! This right should not go away merely because you have been convicted of a crime; and the safest, most effective self-defense tool in existence is the gun (more on that later).
Actually I take it back; there are some reasonable regulations on the Second Amendment that I can fully support. I don’t think that politicians, bureaucrats or cops should be imprisoned for any term of more than 10 years or fined more than $100,000 (just like any other civil rights violation under 18 USC §242) for violating (i.e. infringing) or attempting to violate, someone’s Second Amendment rights. Of course if the violation led to the death, kidnapping (i.e. “wrongful arrest”), attempted kidnapping or sexual abuse (i.e. strip search) of a citizen exercising their rights I would set the maximum term at life with no possibility of parole.
Somehow I don’t think this is what most people think of when you bring up the subject of “reasonable regulations”.
 I.e. fortifications
 Sorry, couldn’t resist!
 Dr. Emerson was challenging his conviction for firearms possession while subject to a domestic protection order
 David E. Young, The Origin of the Second Amendment: A Documentary History of the Bill of Rights 1787-1792 (Golden Oak Books, 2001) 654.
 Young 654-655
 L. Neil Smith: Letter to a Liberal Colleague
 L. Neil Smith: Letter to a Liberal Colleague
 Defensive Gun Uses