Reader David F. Hammack writes:
The Constitution as a whole, including the Amendments, must be viewed through the lens of their time to be understood. But understanding the context of its creation isn’t as easy as it may seem.
The Second Amendment, for example is a beast. It’s been interpreted by the courts, including the Supreme Court, for the most egregious of political reasons, to distort its original meaning.
I’m not a Supreme Court Justice nor an attorney, and I don’t play one on TV. It’s not my intent to refute Cruikshank, but to offer a fresh historical perspective on the meaning of the Second Amendment
The Militia – What “They” Said
James Madison: “A well regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country.” (1st Annals of Congress, at 434, June 8th 1789,
Rep. Tenche Coxe of Pennsylvania: “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.
Patrick Henry: “Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense? Where is the difference between having our arms in our possession and under our own direction, and having them under the management of Congress?
If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” 3 Elliot Debates 168-169. “The great object is that every man be armed. Everyone who is able might have a gun.” 3 Elliot, Debates at 386.
Rep. Elbridge Gerry of Massachusetts: “Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” (spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789.)
Thomas Jefferson: “And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms… The tree of Liberty must be refreshed from time to time, with the blood of patriots and tyrants.”, letter to William S. Smith, 1787, in S. Padover (Ed.), Jefferson, On Democracy
Thomas Jefferson: “No free man shall ever be debarred the use of arms.”, Proposal for a Virginia Constitution, 1 T. Jefferson Papers, 334 (C.J. Boyd, Ed. 1950)
George Mason: “I ask you sir, who are the militia? They consist now of the whole people.” (Elliott, Debates, 425-426)
Richard Henry Lee: “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…” (LIGHT HORSE HARRY) LEE, writing in Letters from the Federal Farmer to the Republic (1787-1788)
Thomas Paine: “The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property.
The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside…
Horrid mischief would ensue were one half the world deprived of the use of them…” I Writings of Thomas Paine at 56 (1894)
Justice Joseph Story: “The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.
It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.” – Joseph Story. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
Justice Joseph Story: “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic…”
The phrase “well-regulated” was in common use long before 1789. It remained so for a century thereafter. It referred to the state of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected.
Establishing government oversight of the people’s arms was not only not the intent in using the phrase in the Second Amendment, it was precisely to render the government powerless to do so that the founders wrote it.
So, if something is “well regulated,” it is “regular” (i.e. a well regulated clock; regular as clockwork).
In the 18th century, a “regular” army meant an army that had standard military equipment. So a “well regulated” army was one that was well-equipped and organized. It doesn’t refer to a professional army. Seventeenth century folks used the term “standing army” or “regulars” to describe a professional army.
Therefore, “a well regulated militia” only means a well-equipped militia that was organized and maintained internal discipline. It doesn’t imply the modern meaning of “regulated,” which means controlled or administered by some superior entity.
The following are taken from the Oxford English Dictionary and bracket in time the writing of the Second Amendment:
1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”
1714: “The practice of all well-regulated courts of justice in the world.”
1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”
1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”
1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”
1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”
Arms – weapons considered collectively
There is a lot of misunderstanding of this term, even among the gun community. If you read the Second Amendment by itself, it’s easily (and often) misinterpreted. But if you study the the supporting documents and the ratification debates, it becomes much clearer.
Nonetheless, the keys are in the text of the Amendment itself. A few definitions first to promote understanding:
armament – weaponry used by military or naval force
bomb – an explosive device fused to explode under specific conditions
Usage – A couple of notable quotes
Niccolò Machiavelli: The main foundations of every state, new states as well as ancient or composite ones, are good laws and good arms. You cannot have good laws without good arms, and where there are good arms, good laws inevitably follow.
Adolf Hitler: The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so.
Actually, the modern definition still applies, as the Founders were well aware that military science was rapidly evolving, particularly in the field of arms. They specified arms to leave interpretation as broad as possible, but there are caveats.
“Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…” [Tenche Coxe, Congressman, Pensylvania]
Clearly their intent was that citizens be armed with military grade weapons.
It seems pretty clear cut, but in analysis, there are inherent limitations on both government and the people.
The prefatory clause, “A well regulated militia being necessary to the security of a free state,” is a justification clause and defines a limit on what type of arms. It does not say, “Because the People need to hunt for food, and slaughter live stock” or “As the People must be secure in their person and home.”
Though these are good and sensible reasons. While they were certainly considerations, it specifies the militia as defined above, so clearly all arms, up to and including military grade weapons.
The operative clause: the right of the people to keep and bear arms shall not be infringed.
Again, note the wording – keep and bear arms. These two terms are inextricably linked. It inherently limits the arms you may keep, to the arms you can bear. In other words, such arms as an infantryman or “soldier” carries; at the time, a musket or rifle (with bayonet), with sword, and or pistol.
Today, common, infantry type weapons include (but are not limited to) pistols, semi-automatic rifles, burst fire rifles, and fully automatic rifles of a caliber used by the individual infantryman.
This specifically excludes crew served weapons such as heavy machine guns, mortars, artillery, tanks, anti-aircraft guns, missiles (other than man-portable), fighter jets, etc. because a single militiaman cannot bear them by himself.
Just as the Federal government can commission privately owned ships, by a Letter of Marque and Reprisal, as ships of war (privateers), the governors of the States can commission officers to establish, and equip a militia unit, with the crew served arms needed to wage war.
What to Conclude?
Having properly defined “militia” as used in the vernacular of the Founders, and establishing the meaning of the phrase “well regulated” as it was used at the time the Second Amendment was written, it seems the “well regulated militia” was meant to be “the whole people”, all citizens, who, at need, could work together, and as effectively as a professional army, with the armament they provide themselves.
To do that, the arms and equipment in their possession, part of their “regulation”, would be arms and equipment equal to that of any army they may face. None of this seems to support the interpretation that the Second Amendment applies only to the National Guard, or a state sponsored, organized militia.
As to what constitutes arms…
This analysis must conclude that the government shall not infringe (in any way limit) the right of the citizen to own any weapon they can use effectively by themselves, as individuals, or carry them, as is fit.
While the prefatory clause is a justification clause, it is not the only justification found in the supporting documents, but one of several. It was seen as the most important, and justified the broadest possible latitude in the types of arms the People could own.
A hunting or slaughter weapon might or might not be effective for personal or home defense. A weapon suitable for home defense can also be used to hunt, and slaughter livestock, but not optimal in armed conflict. A weapon suitable for military use can be used for all of the above.
This does not limit one to “military grade” weapons only. Any weapon can be used effectively in combat. It may not be a “first choice” weapon, but it can certainly be used effectively if it is all you have; certainly more effectively than nothing at all.
Even if the Constitution were amended to preclude government access to the militia, this would not affect the Second Amendment.
The “militia clause” of the Second Amendment was not the “reason” for the amendment. It simply represented what the Founders saw as the most important of many reasons. Actually, the Second Amendment could be seen as guaranteeing The People the right to form militias, irrespective of government control.
The Second Amendment was founded on this principle, “Protestants may have arms for their defence suitable to their conditions and as allowed by law;”, from the Declaration of Right, commonly known as the English Bill of Rights.
Notice there is no mention of the militia, but this guarantees the right of the English people to have “arms for their defence”. Explicit with the “right to have”, is the right to use in your defence, therefore to carry with you if you felt you may be threatened.
Since the right to own and carry firearms was already commonly understood, but the British Governors had elected to deprive them, in some very important cases, of the means to equip their militia, the Founders saw this as the most likely abuse of power regarding firearms, since the right to own and carry arms had been undisputed for 100 years.
It did not deny the ownership and use of of arms for defense, and in fact states that the right to own and carry arms, even for use as a militia, shall not be infringed. Note another difference to the clause from the Declaration of Right…. “and as allowed by law” was specifically addressed by, “shall not be infringed”.
While the King could make laws regarding ownership and use of arms, Congress could not.
What Does It Mean Today?
Modern language only vaguely resembles the language of a couple of centuries ago. This is “linguistic drift”. As society changes, so does language. Words take on new meanings, or even express different ideas.
The Heller decision was the first SCOTUS decision that actually took a look at the basis of the Second Amendment, that actually parsed the arguments of the authors, and the delegates to the ratifying conventions.
The Court’s conclusion was inescapable. The only reason the opinion didn’t go any further than it did, was because the question before the court was very narrow.
The words in the Constitution define the concepts at that time. That specific concept was agreed to by all parties to the document. This was a contract agreed to on behalf of the representative’s constituents. While the meaning of the words may change over time, that concept remains the same. The concept, described by the words at that time, is the law.
As language changes, so does society, but, the law does not. That is why it is the duty of Congress to write laws pursuant to the Constitution, and as society grows, and the people, in great enough numbers, feel the Constitution no longer addresses the needs of society, to amend the Constitution.
Until that happens, regardless of what the words may mean today as opposed to the time when they were written, those concepts, agreed to by all signatories, shape the law.
The Constitution is a legal document just as a land survey plat is a legal document. Both are defining legal constructs. A piece of real estate is defined by boundaries. You will never see a parcel of land defined with a stream or river as a boundary. A stream may run congruent with the boundary, but markers are set to establish the boundary. Over time, a stream may change course.
If your boundary is on a stream, when it moves, do you suddenly have less land than you paid for? Of course not, your land still extends to the markers set at the time of the survey. This is why the concepts of the Constitution, not modern definitions of the words, define the law.