by Diane Rufino, May 2017 – June 17, 2021
INTRODUCTION –
“No free man shall be debarred (denied) the use of arms.” – as proposed by Thomas Jefferson for Virginia’s Bill of Rights, 1776
The Federal Farmer (anti-Federalist author) in 1788: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”
Patrick Henry to the Virginia Convention to Ratify the US Constitution, in June 1788: “The great object is that every man be armed.”
The Federal Gazette, dated June 18, 1789, described James Madison’s proposal for a Bill of Rights: “The people are confirmed in their right to keep and bear their private arms.”
“We have found no historical evidence that the Second Amendment applies only to members of a select militia while on active duty. All the evidence indicates that the amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.” — The Court of Appeals for the 5th Circuit (2001)
The Second Amendment: “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.”
THE HISTORY OF THE SECOND AMENDMENT –
The history behind the Second Amendment goes back well before the colonies were even settled. It goes back to the very history of the fore-fathers and founders of our country, the “subjects” of England who were often targeted by the King as political or religious enemies, had their firearms confiscated, often had their property stripped from them, and sometimes found themselves in jail for no reason other than they were disfavored and perhaps seen as a threat. It goes back most definitely and clearly to the history of England, the country that gave us so much of our common law, gave us the precursor to our US Bill of Rights, and gave us much of the foundation upon which we designed and crafted our Declaration of Independence, our constitutions (federal and state), and our systems of government.
In medieval England, there was no royal army. There wasn’t enough money or control to have such a formal army. Instead, the King would have to count on his subjects to fight for him – to fight for the kingdom. And so, by law, the King established a citizen militia. By law – The Militia Laws – every make subject beginning at a certain age, was required to own guns, have ammunition, be expected to know how to operate them, and show up for regular training sessions. Citizens could be called up at any time by the King to form the militia and so they always had to be in a state of readiness. Henry VIII, who reigned from 1509 – 1547, lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to have their sons from age 7 and older trained in the use of firearms. “Bring them up in shooting!” was the motto.
In other words, citizens (or “subjects”), had a DUTY to keep and bear arms.
150 years, in 1688, this medieval “duty” to keep and bear arms became an “indubitable right.” [That is, a fundamental right, an unquestioned right, a non-disputed right)
How did this happen??
Gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. Remember, Parliament is the so-called “People’s House.” Having a “people’s house” or Parliament was one of the rights the barons wanted King John to recognize in the Magna Carta – the “Great Charter.” If they were to be taxed, which they often were (and which they also passed along to those below them, the tenants on their land) to fund the Kings’ endless battles and wars, they wanted to have representation in those discussions and decisions.
As it turned out, Parliament refused to tax the people to provide the funding for the wars that King Charles wanted to fight and so he disbanded the Parliament. He did so several times. He went on to tax the people directly himself, thus violating their right to representation. (Where have we heard the protest “No Taxation without Representation!” before ?) Eventually, in 1642, civil war broke out and certain members of Parliament (called a “rump” Parliament), led by Oliver Cromwell, brought charges against Charles for high treason. He was captured, tried, convicted, and beheaded on January 30, 1649. His sons, the future King Charles II and King James II had fled to France at the time.
After Cromwell died and his son took over, rather than there being stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did. But what did Charles II come home to? He returned to a country that turned on his father – a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, being distrustful of his subjects, he sought to disarm them and control the bearing of arms. That is, he sought strict control on who exactly could have firearms and how many firearms they could possess. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens (subjects) that he deemed were, would be, or could be political opponents. One particular act that Parliament passed in 1662 was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown. At first, the Act was actively enforced. In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !!
Charles II died having produced no heir, and thus he was succeeded by his brother James II. King James II would use the Game Act to try to disarm all those subjects who he deemed were not well-enough off. In other words, he tried to limit gun ownership to only those of a certain social class of subjects. He sent out mass orders to confiscate firearms and to disarm the citizenry. According to the historical record, the orders were apparently not carried out. But the actions of the King to disarm his subjects certainly incited concern and fear among the people of England.
And so finally, inn 1688, the English people had had enough. They, together with a union of Parliamentarians, invited William and Mary of Orange (Netherlands) to take over the throne and depose King James II. (Mary was the daughter of James II). The members of Parliament and the people themselves promised they would oust James and offer no resistance to William and Mary IF they agreed to sign a Bill of Rights acknowledging the rights of the people and promised to be held to that agreement lest they would forfeit the monarchy. William and Mary agreed. They sailed from Orange and were met with the support of the citizenry in what would be known as the “Bloodless Revolution” (or “Glorious Revolution”). James was forced to flee.
A new Parliament was formed (not one loyal to James, who was still alive and still with a claim to the throne) and this new Parliament decided that a Bill of Rights was necessary to re-affirm all the essential rights asserted in the Magna Carta and all the rights that had been imperiled by James II. In order to tie the new King and Queen to an obligation to abide by these rights, the same statue that elevated William and Mary to the throne also contained those rights – the “Charter of Rights,” aka “The Charter of Ancient and Indubitable Rights,” aka, “The English Bill of Rights of 1689.” In fact, this Bill of Rights of 1689 was referred to as “The New Magna Carta.” The statute created a contractual obligation. It tied the right of the King and Queen to rule to an obligation to respect the rights contained in the Charter.
One of those rights was the right of British subjects to have arms for their defense (self-defense) “suitable to their position and allowed by law.” Actually, only Protestants were recognized to have that right. England had just gone through the Protestant Reformation.
Arms seizure weighted heavily during the deliberations in Parliament as it drafted the Bill of Rights of 1689. So incensed that the people, in mass, had been targeted for arms confiscation under the Militia Act (and even some members of Parliament had been targeted as well), that the people and Parliament felt that the “duty” to have and bear arms was actually a RIGHT. The ability to arm oneself for self-defense is and ought to be, they reasoned, an essential right of humanity.
Indeed, by 1688, and then enshrined in the English Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen because the right to keep and bear arms for self-defense, and of course, to resist a tyrannical King or government. Never again would a lawful citizen be stripped of his firearm by the King or an act of Parliament.
Between 1803 and 1776, the rights of Englishmen became the rights of Americans. After all, the New World was claimed by England and the colonists considered them English subjects, entitled to all the rights and protections afforded to those in England proper. In 1661, with the constant threat of hostile Indians and hostile French and Dutch settlers and traders, the colony of Virginia required all able-bodied men to have firearms and to be trained monthly in their use. Each county had its chief militia officer.
As relations with Great Britain began to deteriorate, especially after the Boston Tea Party and then the punishing response by the King and Parliament with the Intolerable Acts (which shut down Boston Harbor, abolished the Massachusetts colonial government, installed a British General (General Gage) and his redcoats in its place, and established the Quartering Act), the colonists began to collect firearms and stockpile gunpowder and artillery. And not just in Massachusetts, but in other colonies as well. Word was spreading among the colonies of the growing tyranny by the King.
Anyway, someone tipped off General Gage to the colonial stockpile at Concord, as well as the location of the “traitors” – those Sons of Liberty leaders, such as Samuel Adams, John Hancock, etc, who organized the infamous Boston Tea Party – which was in the town of Lexington, and on the night of April 18, 1775, he sent a column of soldiers to destroy the supplies. Their trip led them first through Lexington, where they encountered a small group of colonial militiamen. A shot went off (no one knows how it happened, or from which side), but the response was immediate. Shots rang out and an armed conflict between the mighty empire of Great Britain and Massachusetts had begun. The revolution began.
Virginians began to stockpile their ammunition in Williamsburg, in anticipation that British troops would come to subjugate them as well. A general alarm was spreading among the colonies, fueled by great patriots like Samuel Adams and John Hancock, Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown…. Just as King Charles II and King James II had done to their subjects approximately 100 years earlier in England. It was this general alarm that prompted Patrick Henry to introduce resolutions at a secret meeting of the Second Virginia Convention on March 23, 1775 at the Old St. John’s Church in Richmond to raise up the militia in every country and train them as quickly as possible. He believed so strongly that this was necessary that he gave that impassioned speech we all associate with him – “I know not what course others may take, but as for me, give me liberty or give me death!”
Patrick Henry’s resolutions read simply:
“Resolved, that a well-regulated militia composed of gentlemen and yeomen is the natural strength and only security of a free government; that such a militia in this colony would forever render it unnecessary for the mother country to keep among us, for the purpose of our defense, any standing army of mercenary forces, always subversive of the quiet, and dangerous to the liberties of the people, and would obviate the pretext of taxing us for their support.
That the establishment of such a militia is at this time peculiarly necessary, by the state of our laws for the protection and defence of the country some of which have already expired, and others will shortly do so; and that the known remissness of government in calling us together in a legislative capacity renders it too insecure in this time of danger and distress, to rely that opportunity will be given of renewing them in General Assembly or making any provision to secure our inestimable rights and liberties from those farther violations with which they are threatened.
Resolved therefore, that this colony be immediately put into a posture of defence: and that Patrick Henry, Richard Henry Lee, Robert Carter Nicholas, Benjamin Harrison, Lemuel Riddick, George Washington, Adam Stephen, Andrew Lewis, William Christian, Edmund Pendleton, Thomas Jefferson and Isaac Zane, Esquires, be a committee to prepare a plan for the embodying arming and disciplining such a number of men as may be sufficient for that purpose.”
Perhaps the most rousing speech delivered in colonial America was by Patrick Henry and it was in support of these resolutions: You may have read this speech, or at least the last paragraph of it in school, but I strongly urge you to read it now in its entirety. As you do, note his references to what has been happening in Boston, in Concord and Lexington, the imposition of the retaliatory Intolerable Acts, and the threat of the redcoats moving down to Virginia and other colonies with the same intent. Also, keep in mind the mindset of our Founders… men like Henry, Thomas Jefferson, Lee, Washington who were keenly aware of the history of the people England, the continued struggle to assert their rights, to seek assurances, to have them violated, and only to have to try to re-assert them again, and again…..
Here is the entire speech:
“The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.
Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.
I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!
They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come.
Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”
Patrick Henry was right, war was coming. And he was also right about the intent of the British to disarm the colonies, to subjugate them (because, after all, the King and the Parliament as well, considered the colonists as annoying little children). Just weeks after his famous speech at St. John’s Church, Virginia’s royal governor ordered British sailors to raid the armory at Williamsburg and to take the gunpowder back aboard their ships, which they did.
With the raid on the armory at Williamsburg, thus confirming Patrick Henry’s worst fears, the most powerful colony in the South (Virginia) was driven into an alliance with the most powerful colony in the North (Massachusetts). The Boston Revolution soon became an American Revolution.
Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions between the colonies and Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.
So, the colonies fought for their independence, for their rights and for the right of self-determination and self-preservation as free men and women. And they won… against all odds, they won.
Once the colonies proclaimed their independence, the strongest sign they could send to demonstrate that independence was to assume statehood and adopt state constitutions (the signs of sovereignty). And so, each colony organized itself as a state and drafted and adopted a constitution. Most also adopted a Bill of Rights, in one form or another.
The question for this article is: How did we get the language of our Second Amendment and what does it actually mean?
Different states provided different models for the right to bear arms. In 1776, George Mason went to work on the Virginia Declaration of Rights. He introduced the enumerated rights with a statement of nature’s law and a statement of the relationship of individuals and government, in general. He wrote:
THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.
That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.
Then he addressed the right to arms:
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….
The Virginia Declaration of Rights was adopted June 12, 1776.
Thomas Jefferson submitted a draft of a Bill of Rights to be taken up at the upcoming convention (to draft a constitution for the first government of the “united” states, which as we know, was the Articles of Confederation). He wrote: “No free man shall be debarred the use of arms.”
The Pennsylvania Bill of Rights, adopted in September 1776, recognized a right to bear arms for both self-defense and in defense of the State.
1. That all men are born equally free, and independent; and have certain, natural, inherent, and inalienable rights; amongst which are; the enjoying and defending of life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.
XIII. That the people have a right to bear arms for the defense of themselves and the state.
In March 1780, Massachusetts adopted its Constitution and Bill of Rights, written by John Adams. It acknowledged a right to keep and bear arms, but added that it was for “the common good.” The MA Bill of Rights read, in part:
The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.
Part the First. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.
Art. I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
XVII. The people have a right to keep and to bear arms for the common defense.
Looking at these three Constitutions and Bills of Right, we can see that there were at least three (3) colonial models to address the right to arms.
Again, to compare and contrast them concisely, addressing them in the order they were adopted:
(1) The Virginia model emphasizes the militia. “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…”
(2) The Pennsylvania model doesn’t mention militia; it emphases self-defense and defense of the State. “The people have a right to bear arms for the defense of themselves and the State.”
(3) The Massachusetts model took the Pennsylvania approach, but added a limitation in the form of the clause “for the common defense, and added the people also have a right to “keep” arms. “The people have a right to keep and bear arms for the common defense.”
These models would become important when our new nation would look to draft a national Bill of Rights.
And that time came in 1787, when after certain leading state leaders – namely, James Madison and Alexander Hamilton – found the Articles of Confederation unworkable for the growing union and took the initiative to call up a new constitutional convention. The Convention was held in Philadelphia from May to September 1787 and rather than heed the constitutional call of the Convention to “amend” the Articles of Confederation, a brand new plan of government was pursued and a brand new Constitution was drafted. Although the delegates from 12 states labored through the hot summer months of that year, engaged in countless debates, and pursued and negotiated through many contentious issues, in the end the final draft, the US Constitution, was not acceptable to many of the delegates. Seven delegates to the Convention walked out and refused to sign it on the last day – September 20, including Virginia’s George Mason. These delegates either complained that it conferred too much power to the federal government (mainly, an unlimited power to tax and spent, and to raise an army) or that it lacked a Bill of Rights, or both. Many of those who did not sign it were anti-Federalists, those who feared a weakening of the States at the hands of the federal government.
Nevertheless, once the Constitution was signed, it went to the States, which, acting in their own conventions, would take up the issue of ratification. If they ratified the Constitution, they would become part of the Union of States and if they didn’t, they would not. Delaware ratified first, by a unanimous vote. Then came Pennsylvania, New Jersey (unanimous vote), Georgia (unanimous vote), and Connecticut (overwhelmingly). In January 1788, Massachusetts called its convention. Samuel Adams, who, although he did not attend the Philadelphia Convention, attended the ratifying convention. Assessing the Constitution, he addressed the Convention:
“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 peaceful citizens, from keeping their own arms, or to raise standing armies, unless necessary for the defense of the United States or of one or more of them, or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances, or to subject the people to unreasonable searches and seizures of their persons, papers, or possessions.”
Samuel Adams is the strongest unsung hero of the Second Amendment. His writings on the right to have and bear arms goes back many years, even before his days in the Sons of Liberty.
Next, Maryland ratified the Constitution (overwhelmingly), then South Carolina, and finally New Hampshire (narrowly). When New Hampshire ratified in June 1788, it became the ninth state to do so. According to Article VII of the Constitution, the Constitution would go into effect when 9 states ratified. And so, the new Union was born.
But this new Union was still terribly fractured. Virginia, New York, North Carolina, and Rhode Island still hadn’t decided. Actually, North Carolina met in Convention on August 2, 1788 but quickly rejected the Constitution (193-75). It agreed to meet again; it was waiting to see what the other States did regarding a Bill of Rights.
When New Hampshire ratified the Constitution on June 21, 1788, the Virginia Convention was actually still going on. It was contentious. Virginia, New York, and North Carolina were not expected to ratify, and the issue was over a Bill of Rights, which James Madison had argued in Philadelphia was not necessary. George Mason and Edmund Pendleton, two of the delegates from Virginia at the Philadelphia Convention who would not sign the Constitution, were now delegates at the Virginia Ratifying Convention and were committed to preventing the document from being ratified. These men, and many others, were already calling for another Constitutional Convention – particularly George Mason, and he had the potential power to move the plan forward. Mason and Pendleton were joined in sentiment at the Convention by Patrick Henry, who was highly skeptical of the Constitution and was confident it would lead to the consolidation of the states under the federal government.
At issue at the Virginia Ratifying Convention was essentially the concerns of the anti-Federalists, which was that the Constitution lacked a Bill of Rights (and that the government tended to be overly-ambitious and powerful). The Virginia view, in general, was that a Bill of Rights is the very least that a government owes to its people. Mason argued for a Bill of Rights, and of course, any Bill of Rights worth its salt would have to include a right to bear arms. Patrick Henry told the Convention: “The great object is that every man be armed!”
In the end, a compromise was reached. James Madison promised that if the Virginia delegation would ratify the Constitution in the Convention he would recommend to the first US Congress that a Bill of Rights be added, as a series of amendments. Madison was known to be a trustworthy man and so, the Constitution was narrowly ratified on June 25 (89-79). However, the Virginia delegation did not merely ratify; in anticipation of a national Bill of Rights, it also proposed and drafted a series of amendments for consideration.
“Resolved, that, previous to the ratification of the new Constitution of government recommended by the late federal Convention, a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most exceptionable parts of the said Constitution of government, ought to be referred by this Convention to the other states in the American confederacy for their consideration”
When the Virginia delegation went back to write the amendments they would recommend, they looked to the Massachusetts and the Pennsylvania models, in addition to their own model. The language that they came up with is as follows: “That the people have a right to keep and bear arms; 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.”
The right to bear arms for defense of oneself and the State comes from the Pennsylvania model. The right to keep and bear arms comes from the Massachusetts model. By removing express limitations (such as “for the common good” or other qualifiers that might be later construed to limit the right (“for defense of themselves and the State”), the first part of the proposed amendment construes the right to arms in its broadest terms. The second part of the proposed amendment comes from the Virginia model and addresses the militia. The Virginia delegation already believed it was expressed in its broadest terms.
So, the Second Amendment actually articulates two separate thoughts and two separate rights, but both connected by the right to defense and self-defense. The intentional, conscious effort was to express the right to arms in the broadest terms possible, to be understood in its broadest sense.
The New York Convention followed. It wrapped up on July 26, one month after the Virginia Convention. It was another contentious convention. As in Virginia, it was a battle between anti-Federalists and Federalists. On the anti-Federalist side, the words of the Federal Farmer (possibly Richard Henry Lee) were invoked: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.” Daniel Webster, for the Federalists, answered: “Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be raised in the United States.” [to paraphrase: Because of the fact that the people are armed and therefore superior to any troops raised by the United States, they can prevent the execution of any law they perceive not to be just and constitutional].
The debates in New York led to the most famous work on the meaning and intent of the Constitution – the Federalist Papers. In fact, Madison addresses the militia (and a standing army) in Federalist No. 46. He wrote: “The people will never have to worry about a standing army because of the state militias.”
The New York Convention very narrowly ratified the Constitution (30-27). But as Virginia did, it called for a Bill of Rights and provided several for consideration. North Carolina went on to ratify, but only because a Bill of Rights has actually been adopted! And then Rhode Island ratified after that.
The Constitution was adopted on June 12, 1788 when the ninth state, New Hampshire ratified it. Fall 1788 saw the first national elections and as expected, James Madison was elected to the House of Representatives. In the months after the election and before taking his seat in Congress, which was in New York City at the time), Madison sat at his home in Montpelier and drafted a Bill of Rights. He drew from the proposed amendments that were submitted by the states. He planned to bring them with him to the first session of Congress and present them, thus making good on his promise. He drafted twelve amendments.
On June 8, 1789, Madison stood up in the House of Representatives and proposed what would become the federal Bill of Rights. His proposed Second Amendment read: “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.”
The first Congress amended Madison’s proposal; it removed the language concerning the conscientious-objector. Then a committee was formed – a drafting committee – consisting of Madison himself and Roger Sherman, an anti-Federalist, to provide the final draft. The final draft of the Second Amendment was a pared-down version which read: “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 the debates in the Senate on the proposed Bill of Rights, a motion was made to insert into the Second Amendment the words “for the common defense” next to the words “bear arms.” It was rejected !!
On September 25, 1789, Congress approved the amendments (all 12 of them) and then they were sent to the states.
James Madison’s friend, Tench Coxe, of Philadelphia, provided the most comprehensive analysis of the Second Amendment in a publication under the pen name “The Pennsylvanian.” It was printed in all the states. He wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which might be occasionally called to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms.”
The Bill of Rights was ratified on December 15, 1791.
All the leading commentators of the day saw the right to bear arms as an individual right, including US Supreme Court Justice Joseph Story (1811-1845), who was the leading constitutional expert and commentator during the early-mid 20th century, Michigan Supreme Court Justice Thomas Cooley (1864-1885), the leading constitutional commentator at the end of the 19th century, and Sir William Blackstone, the leading English commentator who was very influential on our founders and framers.
St. George Tucker, who first gained fame as a Revolutionary War hero from Virginia, became famous again for writing a very famous treatise. In 1803, he wrote a 5-volume set, being characterized as the American version of Blackstone’s “Commentaries.” It was titled: Blackstone’s Commentaries, with Notes of Reference to the Constitution & Laws of the Federal Government of the United States & of the Commonwealth of Virginia. Tucker was seen as the best source and authority on the original intent and early interpretation of the US Constitution until about 1825, and his work has been cited by the US Supreme Court over forty times. For those looking to understand the meaning and intent of the Constitution at the time it was adopted and as it served our first sessions of government, it would be interesting to read Tucker’s volumes.
Tucker wrote about Blackstone’s exposition on the right to arms as it existed in the English law and explained how it applied to the United States. Tucker wrote: “’The right of the people to keep and bear arms shall not be infringed.’ This amendment is without any qualification as to their condition or degree, as in the case of the British government.”
He went on to elaborate even further: Explaining the scope of the amendment, he wrote: “This [the Second Amendment] may be considered the true palladium of liberty… The right of the self-defense is the first law of nature; in most governments, it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, then liberty, if not already annihilated, is on the brink of destruction.”
In 1825, Tucker’s treatise was replaced by the text written by William Rawle – A View of the Constitution of the United States of America. Regarding the Second Amendment, Rawle wrote in his book: “No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people..” [Rawle was part of the convention in Pennsylvania that ratified the US Bill of Rights; he was offered the position of first US Attorney General but turned it down].
The most influential constitutional commentator of the late 19th century and early 20th century was Thomas Cooley. He was considered the greatest legal mind of the time. He wrote the text: The General Principles of Constitutional Law in the United States of America. In his text, he explains exactly what the right is that is protected in the Second Amendment: “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia, but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the actions or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and that they need no permission or regulation of law for the purpose…”
Professor Randy Burnett of Boston University’s School of Law sums up the history of the Second Amendment this way: “What is shown by the historical record is that we have statements made before the second amendment was proposed, while the second amendment was being considered, and immediately after the second amendment was ratified, each of which reflects the understanding of the speaker that the amendment protects an individual right to have and bear arms. What we don’t have – what we don’t find in the historical record is a single example of any contemporary at the time of the second amendment referring to it as anything other than an individual right.”
Professor Eugene Volokh, of the UCLA School of Law, comments: “Throughout the 1700’s, throughout the 1800’s, and up until the early 1900’s, the right to bear arms was universally seen as an individual right. There was virtually no authority for the collective rights/ states’ right point of view.” (States right to call a militia, that is).
But yet, in the late 20th century and now in the 21st century, somehow this history means nothing?
“The Second Amendment is a right held by States and does not protect the possession of a weapon by a private citizen.” — The Court of Appeals for the 6th Circuit (2000)
“The right to keep and bear arms is meant solely to protect the right of the States to keep and maintain an armed militia.” — The Court of Appeals for the 9th Circuit (1996)
The conservatives on the bench in the District of Columbia v. Heller case and then in the McDonald v. Chicago case got it right. They chose to be intellectually honest.
References:
DVD: “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006). Second Amendment Films LLC
Diane Rufino, “Making Sense of the Meaning and Intent of the Second Amendment,” May 24, 2017. Referenced from her blogsite: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/
United States v. Miller, 307 U.S. 174 (1939)
District of Columbia v. Heller, 554 U.S. 570 (2008)
McDonald v. Chicago, 561 US 742 (2010)
Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp
Don B. Kates, Jr. “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983). Referenced: http://www.constitution.org/2ll/2ndschol/57mich.pdf
George Mason, the Virginia Declaration of Rights. Referenced at: http://www.history.org/almanack/life/politics/varights.cfm
Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june25/
The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june27/
Teaching American History (an Intereactive Resource) – http://teachingamericanhistory.org/ratification/overview/
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