The Second Amendment

James Madison, who wrote the Constitution in close association with his friend Thomas Jefferson, did not think a Bill of Rights was necessary. Alexander Hamilton agreed and said in a lengthy discussion of a possible Bill of Rights in Federalist Papers #84,  “The Constitution is its own Bill of Rights.” These men worried that if a list of such rights was drawn up something would be left out or, worse yet, folks would think those were the only rights that citizens have. Indeed, Hamilton went on to note that a Bill of Rights is both “dangerous” and “unnecessary,” since he thought such rights are clearly implied in the Constitution itself and need not be specified or if specified could be circumvented by devious minds. Hamilton assures his readers that “Here in strictness people surrender nothing [by not having their rights specified]; and as they retain every thing they have no need of particular reservations. . . . [the Constitution] contains all which in relation to their objects, is reasonably desired.” Further, the men thought that citizens’ rights were self-evident, a favorite concept of Enlightenment thinkers.

But since several states were reluctant to ratify the Constitution without a specified Bill of Rights, Madison eventually drew up a list of twelve such rights that were soon pared down to ten. The one that is most talked about these days is the right of citizens to keep and bear arms, the Second Amendment. This right was specified because the Founders regarded militias, raised by the states and paid by the states as the need arose, as essential to the freedom of the American people. Their model, in all likelihood, was Cincinnatus, the citizen/farmer in the early days of Rome, who fought when the need arose and then went back to his farm when the danger had passed. The founders were known to have greatly admired the Roman Republic, using it as a model for their own government. And given their experience with the constant presence of the red-coated British, they were very concerned about the possibility of a standing army — even their own army — that would strengthen the government and weaken the people’s freedom.  Indeed, when they were considering ratification of the Constitution, Hamilton had to assure his New York readers, in Federalist #24, that they need not fear the presence during peace time of a standing army: it simply wouldn’t happen.  The states would retain the power to raise militias when necessary and disband them when the danger had passed: they would be “well regulated.” Thus, in order to avoid a standing army, state militias were essential. Not only had the conjoined militias won the Revolution after all, but, during Washington’s presidency, a collection of several state militias amounting to 17,000 men was quickly rounded up and, led by the President himself, headed West to put down the Whiskey Rebellion in Western Pennsylvania. The word got out that the militia was headed their way and the Rebellion broke up. At that time it was determined that the militias could safely protect the citizens of the new nation.

The point of this little history lesson is to show that the Second Amendment was less about the right to keep and bear arms than it was about the need for armed militia. Indeed, when, much later, in 1934, the Congress passed the National Firearms Act to keep such things as sawed-off shotguns out of the hands of gangsters, the case eventually went to the Supreme Court whose decision clearly centered around the Founders’ express need for a militia. In their decision, they reasoned that “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” Might not the very same thing be said of today’s automatic weapons?

In fact, if you read the Second Amendment carefully, you will see that it presents us with a compound statement in which two clauses are interdependent. It reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” In other words it states that since a militia is necessary to defend freedom, the right to keep and bear arms shall not be infringed. The statement is quite precise: one thing necessitates the other. If there were no need for a militia — as, say, if there were a standing army, navy, marine corps, air force, and national guard — then there would be no grounds for the so-called “right” to keep and bear arms. And, conversely, the right to keep and bear arms need not be recognized when the need for a militia disappears — because of the presence of a standing army, for example.

The relentless attempts by the arms manufacturers — for the most part — to bully this Congress and the Supreme Court into allowing any and all weapons in the hands of any and all citizens, regardless of age, flies in the face of the Second Amendment as it was written and understood for many years. The arguments by groups such as the NRA tend to focus exclusively on the “right” itself, and ignore the explicit concern for militias. But, assuredly, the fact that state militias are a thing of that past implies that the right to keep and bear arms can no longer be said to be protected by this Amendment. Perhaps in the end Hamilton was right — certainly with respect to the Second Amendment: it has proven to be “dangerous.”

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7 thoughts on “The Second Amendment

  1. Hugh, this is a great blog, and thanks for writing it. I was glad you restated Hamilton’s views on the Bill of Rights, because he’s startingly right — too often we forget that there are many other rights within the rest of the Constitution! However, the Bill of Rights is a beautiful and important work unto its own, and in conjunction with the rest of the Constitution, because it really puts into writing “human rights,” maybe in the best way history’s ever seen. My entire adult life, I’ve had the First Amendment memorized and on a card in my wallet (yes, I am a card-carrying journalist!). It’s not just about the press, religion, etc. — but about the freedom of thought and expression, which really is the freedom to be human when you think about it.

    However, the Second Amendment. Ah, yes, there Hamilton is exactly right in his worry, and so was Madison in his view of it, and so are you in your expression of both your worry and your view! It most definitely should be linked to the militia. It is a single sentence, not two that make arms an either/or thing with an option separate from being in the militia. For much of America’s history, the Supreme Court ruled that way. Look at this ruling from 1876: In United States v. Cruikshank (1876), the Supreme Court of the United States ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence” and limited the applicability of the Second Amendment to the federal government.” That was upheld in a 1936 ruling, which also specified the government could regulate the types of guns being used/sold. (Probably in response to Midwest gangsters using Tommy guns and BARs.)

    It’s only been in the last 50 to 60 years, because of groups like that blasted NRA, that public opinion began to push for the sentence into two segments, and only since 2001 and, most dramatically, in 2008 in Holder, that the Supreme Court’s actually ruled that way — separating personal arms bearing from militia ties.

    It’s danged frustrating. Justices like Scalia, who claim to be originalists on the Constitution, and many of their supporters who do the same, want to see the original wording of the amendment read differently. Ack! Personally, I am OK with hunting shotguns, and that’s about it. If people want to carry semiautomatics or even big rilfes, they should serve in the Guard! You’re exactly right, Hugh. That is what the Amendment says. Even if a person is 65, flat-footed, whatever. If he feels the need to conceal and carry, he’s should do his one weekend a month, his two weeks every summer at Fort Ridgely, and be on call whenever there’s a tornado or flood.

    Sorry, I run long on this! Like you, I have strong beliefs on this thing. Not to mention on the First Amendment. Thanks, Hugh, for keeping this issue in front of us. It’s worth noting that not a single gun bill has made headway in Congress since the Newtown shootings. I wish the ghosts of Hamilton and Madison would prowl the halls of Congress for a couple of days …

    • Feel free to run on whenever you wish! This was fun to read. I do think Obama fumbled the ball on gun control. After Sandy Hook an overwhelming percentage of Americans wanted at least some sort of screening process in gun purchases. He should have gone to the public — the way Reagan used to do — and made sure he had public opinion solidly behind him and run with the ball right over the NRA sponsored Congress. I do think he might have made some inroads at that point. But it now seems like a false hope.

      • It is extrememly frustrating to talk about this with anyone, especially here in the south. I’ve made the same arguments as you, Hugh and BTG. There is no need for ordinary citizens to carry guns in parks and bars and churches. This Second Amendment worship (and distortion) is enraging.

  2. Thanks Hugh! 🙂 You’re right about Obama, too. If ever he had public momentum on his side and could have gained even more by taking it to the public before he went to Congress — basically going to Congress with it a done deal, and making any members of Congress who tried to question him look cold-hearted and, thus, irrelevant — the weeks after Newtown was it.

  3. Hugh, good piece and I enjoyed Dana’s comments as well. We all see a daily accumulation of deaths that are unnecessary. I cannot believe we fail to come to action when not doing anything is not the answer and certainly not doing the opposite of what is needed like some states have done. We need someone with Chutzpah to drive this home and the President has punted too many times. I am weary of politicians scared of the NRA, who has changed from a more reasonable voice when created to this marketing engine for the gun industry. Thanks for shining a light on what this Amendment says and intended. BTG

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