The 2nd Amendment as an individual right to bear arms
Amendment 2 – The Right To Bear Arms
One sentence, two clauses. A prefatory clause and an operative clause. The reason and the result.“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.”
While this sort of sentence structure may seem irregular to a modern eye it fits with a pattern found in other contemporaneous legislation. Constitutional scholar Eugene Volokh assembled in his paper The Commonplace Second Amendment dozens of examples of such language[29].
Language is a process that is always evolving and as such it is important to understand the language used as the Founders understood and used it. It is understood that there is no guarantee that what a word means today will mean what it meant even 20 years ago. For example we see “literally” gain a new definition[1] ofMy modest discovery is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly ... I list dozens more such provisions in the Appendix.
... These state provisions also remind us that early constitutions were political documents as well as legal ones. They were meant to capture people's allegiance, both in order to get the provision approved, and to persuade future generations to adhere to it. In this context, setting forth the justifications for a provision makes perfect rhetorical sense.
Due to the ever changing nature of the linguistic landscape it grows increasingly more important the further separated we are from the time of the legislation’s passing to examine it with the appropriate linguistic lenses. If all the law’s refinements and changes were hinged upon the mercurial linguistic perception of the layman then the simplest way to change a law would be to publish a popular dictionary. This sort of legislation-by-dictionary is clearly anathema to the intent of the founding fathers and as such the purpose of understanding the language and meanings used at the time of writing becomes ever clearer.“virtually – used in an exaggerated way to emphasize a statement that is not literally true.”
Prior to the ratification of the 2nd amendment 7 of the 13 states had some sort of precursor to the 2nd amendment[2, 3, 4, 5, 6, 7, 8] – Virginia, Pennsylvania, Maryland, North Carolina, New York, Vermont, Massachusetts.
The Virginia Declaration of Rights[2] declares the following,
Article XIII of the Pennsylvania State Constitution[3] declares,“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; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.”
Articles XXVIII-XXXI of the Maryland State Constitution[4] declare,“That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”
The North Carolina Declaration of Rights states in Article XVII[5],“XXVIII. That a well-regulated militia is the proper and natural defence of a free government.
XXIX. That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature.
XXX. That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.
XXXI. That no soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, except in the manner prescribed by Law.”
The Constitution of New York[6],“That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”
The Constitution of Vermont states in Chapter 1, Section XVIII[7],“And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.”
The Massachusetts Declaration of Rights, Chapter 1, XVII[8] declares,“That the people have a right to bear arms for the defence of the themselves and the State; and as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”
These 7 precursor amendments can be broken down into three overlapping groups. The first group, Pennsylvania, North Carolina, New York, and Vermont, guarantee a right to bear arms to the people individually. The second group; Maryland and Virginia, guarantee a right to bear arms to a well-regulated militia. The third group, Massachusetts, guarantees the people a right to bear arms communally for the common defense. All states, however, decried the dangers of a standing army in their precursor amendments.“The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it”
James Madison brought forth a proposal for a Bill of Rights to the House of Representatives on June 8th, 1789[9]. The section of the original proposal relating to the bearing of arms is as follows,
Even now we can see the influence of Massachusetts, Vermont, North Carolina, and Pennsylvania ‘the right of the people to keep and bear arms’, ‘well-regulated’ and Virginia on the draft ‘well-regulated miltia’ as well as the religious protections offered by New York ‘but no person religiously scrupulous…’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 select committee suggested by Madison and agreed upon by the House would review the bill and on August 17th, 1789, they returned an alternate wording of the amendment[10],
Immediately we see the influence of Maryland and Virginia ‘well-regulated militia’, Virginia ‘composed of the body of the people’, ‘security of a free State’, as well as Massachusetts, Vermont, North Carolina, and Pennsylvania ‘the right of the people to keep and bear arms’, and New York ‘but no person religiously scrupulous…’ It also becomes clear from the structure of the proposed amendment that the founders envisioned the militia to consist of the whole of the people rather than a discrete body of people. This is further backed up by the language of the Militia Acts of 1792[citation] which defined the militia as “each and every free able-bodied white male citizen...who is or shall be of age of eighteen-years, and under the age of forty-five years…”A well-regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
After debate the House would send a new version to the Senate on August 24th, 1789[11],
However due to a presumed scrivener’s error the Senate would enter the amendment in the Senate Journal with two mistakes – a comma after ‘the right of the people to keep and bear arms’ and replaced the semi-colon before the conscientious objectors clause with a comma[12, 13].A well-regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
Aside from the grammatical errors it follows an identical structure to the previous proposal as the only changes made by the House were to the nature of the conscientious objectors clause.A well-regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.
By September the formatting of the amendment had drastically changed[14]. On September 4th the Senate voted to remove the militia definition ‘composed of the free people’ and the conscientious objectors clause ‘but no one religiously scrupulous..’ from the proposed amendment[15], thus changing it into a more familiar form.
On September 9th the Senate debated the amendment once again. The Senate Journal records[16] an amendment to insert the phrase ‘for the common defence’ after the phrase ‘the right to bear arms’ which would have changed the wording to, ‘the right of the people to bear arms for the common defence shall not be infringed’. This proposed amendment was voted down. A subsequent motion was put forward to alter the prefatory clause, replacing ‘the best’ with ‘necessary to the’, changing the wording of the clause to ‘a well-regulated militia being necessary to the security of a free State’. The Senate would send their changes back to the house.A well-regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.
On September 21st, 1789, the House voted to accept the Senate’s changes – the amendment had taken it’s final form[17].
Now that we understand the history of the amendment’s language, lets get into what that specific assemblage of words means individually and as a whole.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.
It is important to clarify the contemporary understandings of the various phrases used by the 2nd amendment and it’s predecessors as without said understanding it is impossible to properly evaluate the intent of the Founding Fathers and the Congress.
In Federalist No. 29[18] Alexander Hamilton provides for us an interpretation of the phrase “common defence” that was suggested to appear in the 2nd Amendment,
This sentiment makes it clear that the contemporary meaning of the phrase “common defence” was understood to refer to a Lockean social contract in which an individual right to bear arms was ceded in favor of a communal right to bear arms in defense of said community.“The power of regulating the militia and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defence, and of watching over the internal peace of the confederacy. ”
A definition of arms as it is used in the United States Constitution and Bill of Rights is provided to us by both a contemporary court case[19]
As well as the First Edition of Black’s Law Dictionary[20],...the term “arms,” in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively, and in the most restricted sense, includes guns or firearms of every description, as well as powder, lead, flints, and such other things as are necessarily used in loading and discharging them, so as to render them effective as instruments of offence or defence, and without which their efficiency lor these purposes would be greatly diminished, if not destroyed.
And, finally, in A Dictionary of the English Language[21] – published in 1766 – lexicographer Samuel Johnson provides us with a definition of arms that predates not only the Bill of Rights but the Revolutionary War and Declaration of Independence themselves,Arms. Anything that a man wears for his defense, or takes in his hands, or uses in his anger, to cast at or strike at another.
Taken in conjunction these three examples make it clear that the Founding Fathers understood that they were extending an individual right to arms to the people and that arms included guns and firearms of all descriptions as well as the implements required to maintain and use them.
Arms. Weapons of offence or armour of defence.
The word 'militia' is defined contemporaneously by the Militia Act of 1792[30],
It is clear that the intention was not to create a discrete class of citizens enrolled in the militia who would be solely vested with this right, rather that the entire able body of the people was to be considered the militia. The Militia Act of 1862 would expand this to include those of 'African descent'[31]. This definition would once again be upheld in 1903[32]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
In 1875 United States v Cruikshank[33] defined 'the people' as being,
This ruling further clarifies the intent of the Founders to vest the entire people of the United States with the right to bear arms rather than vesting that right exclusively in a discrete body of militia.Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual, as well as their collective, rights.
The popular understanding of the phrase ‘well-regulated’ has changed considerably since it’s addition to the Bill of Rights and the constitutions of Maryland and Virginia. The phrase – in modern times – refers to something which is strictly regulated by or subject to oversight by the law. The modern definition does not, however, match contemporaneous meaning. It’s contemporaneous usage was more akin to “properly functioning”, “well operating” or “in its ideal state”.
In 1822 Anne Newport Royall writes in Letters from Alabama 1817-1822[22] describes her wonder at the improvements the town of Huntsville have made since her previous visit in 1818,
Royall is describing what she views to be a well planned and constructed city and it’s awe inspiring features. She is not describing a fire company and fire engine that are strictly regulated by Huntsville’s laws.Huntsville has greatly increased since my first visit; and notwithstanding the check it has received, in the great number of new towns on the river, it will always be a place of wealth and business. Its capital is considerable, and the proprietors are thoroughgoing business men. It 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. It has now two printing offices – each publishing a paper; sixteen stores; several commission merchants; auctioneer; a land office; and various other public offices, which draw numbers of people from the country. They have a very fine fire engine, and a well-regulated company. There are two academies for young ladies, one for gentlemen, and several common schools. Great encouragement is given to the encouragement of learning throughout the state. Every sixteenth section of land is set apart for the benefit of education, and a provision is made by law for a university, which is soon to go into operation. There’s your chance Mr. Black-Coats! They have a tolerable library; fine taverns; several Doggeries; twenty-one lawyers! And eight practising physicians.
William Thackary’s 1848 novel Vanity Fair[23] describes the mental state of the fictional Major Dobbin,
In the above passage Thackary suggests Dobbin to be mentally ill as a ‘well-regulated person’ would not show such avoidant behaviour. It is clear that no laws or regulations are being referenced and the government is certainly not prohibiting or passing legislation to prevent Dobbin from seeing his family. It is clear that this contemporaneous usage of ‘well-regulated’ refers to a mind that is properly operating or functioning. It does not refer to one subject to strict oversight or regulation.He did not like to own that he had not as yet been to see his parents and his dear sister Ann—a remissness for which I am sure every well-regulated person will blame the major. And presently he took his leave, leaving his address behind him for Jos, against the latter’s arrival. And so the first day was over, and he had seen her.
When he got back to the Slaughter’s, the roast fowl was of course cold, in which condition he at it for supper.
Knowing what early hours his family kept, and that it would be needless to disturb their slumbers at so late an hour, it is on record, that Major Dobbin treated himself to half- price at the Haymarket Theater that evening, were let us hope he enjoyed himself.
Author and abolitionist George William Curtis discusses marriage in his 1861 novel Trumps[24],
Curtis claims that any ‘well-regulated person’ would consider marriage from a pecuniary – or financial – point of view. Curtis’ language aligns with that of Thackary’s. Both examples refer to someone who’s mind is functional and operating properly – a man possessing the proper and unfettered capacity for thought. He does not suggest that a ‘well-regulated person’ is bound by or acting under regulatory oversight or within the confines of regulation or the law.Marriage is a most important relation. Young men can not be too cautious in regard to it. It is not an affair of the feelings merely; but common sense dictates that when new relations are likely to arise, suitable provision should be made. Hence every well- regulated person considers the matter from a pecuniary point of view. The pecuniary point of view is indispensable. We can do without sentiment in this world, for sentiment is a luxury. We can not dispense with money, because money is a necessity. It gives me, therefore, great pleasure to hear that the choice of my son has evinced the good sense which, I may say without affection, I hope he has inherited, and has justified the pains and expense which I have been at in his education. My son, I congratulate you. Mrs. Dinks, I congratulate you
In Edmund Yates: His Recollections and Experiences[25] Yates describes his friend John Montesquieu Bellew,
Yates describes Bellew as a man who ‘persistently and yet so unintentionally’ does ‘the wrong thing in the wrong place’ and who he describes as ‘not very firm, or very strong-minded, or very decisive’. Despite his worthy characteristics Yates claims Bellew’s friends would have looked more kindly upon a ‘more strictly well-regulated person’. Yates is not trying to say that Bellew’s faults are due to governmental regulation or by interference from the law. The flaws are mental, not due to regulations. Here as in previous examples ‘well-regulated’ refers to something that is properly functioning or in its ideal state.I do not think there was ever a man more thoroughly misunderstood by the majority of people, even by those who thought they knew him, than John Montesquieu Bellew. He generally passed for a sharp, shrewd, scheming man of the world, always on the look-out to better his position, and not very scrupulous as to the means; much of a lady-killer, and not a little of a charlatan.
There were never more mistaken notions than all of these, though I am bound to state there they were mostly, if not entirely, due to the man himself. Never was a man so wholly and completely his own enemy as Bellew; never did a man so persistently and yet so unintentionally do the wrong thing in the wrong place …
… He was not very firm, or very strong-minded, or very decisive; but he was frank, kindly, generous and hospitable, a kind and affectionate husband, an excellent friend, and a good father...
… Some of his friends blamed him, and some pitied him; but to a few good and staunch and true who knew the man, his affectionate disposition, his warm and generous heart, he was lovable to the last. By those his memory is still cherished in the full feeling that they could far more readily have spared a more strictly well-regulated person.
The Jew and Other Stories[26], published in 1846 by Russian novelist (and anti-Semite) Ivan Turgenev describes a hunting trip,
Turgenev suggests that any ‘well-regulated person’ would find themselves in a ‘supremely agreeable frame of mind’ after a successful days shooting. Context makes it evident that Turgenev does not mean that someone under government regulation or law would find themselves in a ‘supremely agreeable frame of mind’ after a successful days shooting. Once again ‘well-regulated’ refers to someone with a mind that is properly functioning or in an ideal state.One autumn day there were five of us, ardent sportsmen, gathered together at Piotr Fedorovitch's. We had spent the whole morning out, had run down a couple of foxes and a number of hares, and had returned home in that supremely agreeable frame of mind which comes over every well-regulated person after a successful day's shooting. It grew dusk. The wind was frolicking over the dark fields and noisily swinging the bare tops of the birches and lime-trees round Lutchinov's house. We reached the house, got off our horses....
On the steps I stood still and looked round: long storm-clouds were creeping heavily over the grey sky; a dark-brown bush was writhing in the wind, and murmuring plaintively; the yellow grass helplessly and forlornly bowed down to the earth; flocks of thrushes were fluttering in the mountain-ashes among the bright, flame-coloured clusters of berries. Among the light brittle twigs of the birch-trees blue-tits hopped whistling. In the village there was the hoarse barking of dogs. I felt melancholy... but it was with a genuine sense of comfort that I walked into the dining-room.
Blackwood’s Edinburgh Magazine, Volume 35 published in 1834 contains an article titled Hints to the Aristrocracy: A Retrospective of Forty Years, From the 1st January 1834[27]which says,
The author discusses people who ‘went forth to resist’ the ‘encroachments of the Crown’. People who, in spite of taking up arms to resist the encroachment of the Crown, maintained a ‘well-regulated organization.’ This is clearly anathema to the notion that ‘well-regulated’ means subject to governmental oversight or regulation as it would be impossible to be both ‘well-regulated’ and in open defiance and revolt of said government. The definition of ‘well-regulated’ can once again only be interpreted to refer to something properly function or being in its ideal state.The English have, in every age, as Mr Burke observes, been remarkable for their love of freedom, but never till recently actuated by the passion for equality: they were extremely solicitous that the public liberties should be maintained, but they had no wish that the order of society should be subverted in the struggle, or the privates elevated to the rank of officers, in combating the common enemy. They went forth to resist the encroachments of the Crown, in the natural order of society, headed by their landlords, their magistrates, or their leading citizens, and when the victory was gained, fell back to the same state of established and well-regulated organization. Even during the democratic fervor of the great Rebellion, the same order was preserved...
Author and abolitionist Harriet Beecher Stowe – of Uncle Tom’s Cabin fame – used the phrase in her 1896 book The Writings of Harriet Beecher Stowe[28],
Betsy is anxious and afraid because Jack has run away and not returned home. Dorcas begins to suggest that someone with a ‘well-regulated mind’ would ‘exercise self-control’ before she is interrupted by Betsy who asserts that she does not have a ‘well-regulated mind’ due to being unable to control her anxieties. It’s clear that neither character is referring to a state of government regulation or any sort of legality – once again ‘well-regulated’ refers to a mind in its ideal state or that is properly functioning.“Come now, Betsey,” said Miss Dorcas, “eat your toast; you really are silly.”
“I can’t help it, Dorcas; it’s getting dark and he doesn’t come. Jack never did stay out so long before; something must have happened to him.”...
… And there ’s no sort of reason, Betsey, why you should n’t exercise self-control and eat your supper,” pursued Miss Dorcas authoritatively. “A well-regulated mind”---
“You need n’t talk to me about a well-regulated mind, Dorcas,” responded Mrs. Betsey in an exacerbated tone. “I have n’t got a well-regulated mind and never had, and never shall have; and reading Mrs. Chapone and Dr. Watts on the Mind, and all the rest of them never did me any good. I’m one of that sort that when I’m anxious I am anxious; so it don’t do any good to talk that way to me.”
These seven examples show that the contemporaneous definition of ‘well-regulated’ does not match the modern perception. It is clear that the Founding Fathers understood the term ‘well-regulated’ to be defined akin to 'properly functioning' or 'being in an ideal state' and that they did not consider the term to refer to a state of government regulation and control.
This analysis of the language and history of the amendment should make it clear that the 2nd amendment was intended to enshrine an individual right to bear arms into the constitution rather than granting that right to a discrete class of enrolled militiamen.
Reply With Quote
Originally Posted by Akar
