By Jeff Olson
In light of the mass shootings in our country lately and in recent history, the continual political exploitation of those shootings to rationalize stricter gun control laws, and the efforts of some in our national leadership to allow and even encourage international treaties to supersede our Second Amendment rights, I thought it important and timely to provide a brief treatise of what’s been called the safeguard of individual liberty in America.
Especially during the past 30 years, the Second Amendment has become one of the most controversial parts of our Constitution. This amendment, written in 1789 and ratified in 1791, states: “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.” This statement has been misinterpreted through the lens of politics and ideology and other avenues for many years, but what about the historical record? As with any document of a legal nature, the original intent of the drafters should carry considerable weight and, in the minds of many, should be the ultimate arbiter in correct interpretation. The primary issue has always been the contested scope of the Second Amendment: do individual citizens have a constitutionally-protected right “to keep and bear arms”? My focus here will be to briefly examine four sources of information to determine the answer to this important question. While an exhaustive study of the Second Amendment is well beyond the scope of this writing, I will attempt to provide sufficient core historic references which reveal our Founders’ perspectives and intent and hopefully to inspire some of you to do some study of your own.
The Second Amendment is a part of the Bill of Rights, which was (is) essentially an individual and state’s rights document. So, by definition, every amendment in the Bill of Rights addresses specific areas of jurisdiction where the federal government has no constitutional authority. Therefore, this amendment represents another element of freedom which was intended to remain outside of the jurisdiction of the federal government (with few and extreme exceptions). In reality, it did not grant or bestow any new right for citizens; rather it simply secured in writing a right (self-protection) which had already been an inherent God-given right understood as integral to the preservation of individual freedom throughout colonial and earlier history. In other words, the Second Amendment merely protected a right which was preexisting and therefore pre-political in origin. This is well documented from original sources, including legal commentaries that under girded American law.
James Wilson was one of only six Founders who signed both the Declaration of Independence and the Constitution, was an original justice on the U.S. Supreme Court and the second most active member of the Constitutional Convention. He also conducted legal training for students, teaching that the Second Amendment recognized and provided “a new security to the already existing, natural God-given rights of citizens for their own self defense.” In Blackstone’s Commentaries on the Laws, the most influential legal commentary at the time of the framing of the Second Amendment, he stated “The…right of the [citizens] that I shall at present mention, is that of having arms for their defense. [This is] the natural right of resistance and self-preservation when the sanctions of society and laws are found insufficient to restrain the violence of oppression…” Joseph Story was the founder of Harvard Law School and served-thirty four years on the Supreme Court, having been nominated by President James Madison. Story was called the foremost of American legal writers and is titled a “Father of American Jurisprudence.” In his 1833 Commentaries on the United States Constitution, he stated in reference to the Second Amendment, “The importance of this article will scarcely be doubted by any persons who have duly reflected upon the subject……The right of the citizens to keep and bear arms has justly been considered as the palladium [safeguard] of the liberties of a republic since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them….There is certainly no small danger that indifference may lead to disgust, and disgust to contempt, and thus gradually undermine all the protection intended by this clause of our national Bill of Rights.”
The views of the Founders themselves can give us a wealth of insight on the Second Amendment. First, however, we will take a quick look back in time prior to 18th century America. American republicanism drew strongly from early Florentine tradition which considered the citizen-warrior as the staunchest bulwark of a republic. Here, the most dependable protection against government corruption was the economic independence of the citizen and his ability and willingness to become a warrior. This theme of relating arms and civic virtue birthed the belief that arms were essential to liberty in order for the individual citizen to protect himself, to hunt, to defend his state against foreign invasion, to keep his rulers honest, and to maintain his republican character. Therefore; arms, civic rights, and liberty were inseparable. These principles were an integral part of the foundation upon which America’s Founders constructed the Second Amendment. Samuel Adams, Signer of the Declaration and considered “Father of the American Revolution.” stated “[T]he said Constitution [should] be never construed….to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Fisher Ames, a Framer of the Second Amendment in the First Congress said; “The right……of bearing arms…..is declared to be inherent in the people.” George Mason, Delegate to the Constitutional Convention, and “Father of the Bill of Rights” stated that “….when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised….to disarm the people. That it was the best and most effectual way to enslave them. But that they should not do it openly; but to weaken them and let them sink gradually.” One of the sources who our Founders looked to was 18th century British political writer James Burgh. In his “Political Disquisitions,” he stated “No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave.” Burgh clearly articulated that the very character of the people, which is the cornerstone and strength of a republican society, was related to the individual’s ability and desire to arm and defend himself against threats to his person, his property, and his state.
Now let’s take a look at a part of the Second Amendment which many people have misinterpreted for various reasons: the meaning of “militia.” According to Richard Henry Lee, a signer of the Declaration and original framer of the Second Amendment: [T]he militia shall always include, according to the past and general usage of the States, all men capable of bearing arms. A militia…..are in fact the people themselves…[and] are for the most part employed at home in their private concerns. Samuel Adams stated that the militia is composed of free citizens. George Mason asks and answers the question, “I ask, sir, what is the militia? It is the whole people, except for few public officials.”
James Burgh saw in England what could happen to a country that depended solely upon a military to provide its arms; how they had become a people interested only in luxury and commerce, eventually surrendering their arms. There is an integral relationship between the possession of arms and the spirit and character of a people, and it is here where the lamp of liberty will either grow dimmer and perhaps go out, or burn more brightly as a lighthouse to the world.
Now we look at colonial legislative acts within individual states and of our early federal Congress. The first is important because much of the legislation in the state governments reflected foundational principles which would eventually undergird and become part of America’s Constitution. As an early example: Virginia required every home to have a functioning firearm within his house; a 1676 law declared that “Liberty is granted to all persons to carry their arms wheresoever they go.” The states’ contributions also extended into their conventions where they were deliberating ratification of the federal Constitution. In proposing the wording for the Second Amendment, New Hampshire submitted: “Congress shall never disarm any citizen.” Pennsylvania declared: “[N]o law shall be passed for disarming the people, or any of them.” In addition, Congress’s first federal law on this subject, The Militia Act of 1792, defined “militia of the United States” not as the Continental Army or any other organized military body but rather as including almost every adult male in the United States. Under this act, which continued in force until the 20th century, each adult was required (by law) to possess a firearm and a minimum supply of ammunition.
We now turn to state constitutions. Why is this important? First of all, the Second Amendment was primarily a reflection of the beliefs present in the individual states. Secondly, bear in mind that the federalism built into our constitution preserved the sovereign ties of the states. Each state retained most of the authorities and powers it possessed prior to ratification of the Constitution. In other words, the Constitution basically made explicit what had already been implicit. Only the limited powers enumerated in the Constitution belonged to the federal government, thus the balance of power still remained with state governments.
To quote just a few of the state constitutions: “The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called to question.” – Colorado, Mississippi, Missouri, and Montana. “The people have the right to bear arms for their security and defense.” – Idaho, Kansas, and Utah. It is interesting to note that some state constitutions, adopted even well over 150 years after the Second Amendment, still continued to reflect the original intent.
In summary, there can be no legitimate doubt that the historic evidence overwhelmingly supports the guarantee to every individual citizen the right to keep and bear arms. The Second Amendment must be interpreted within the context and purpose of the entire Bill of Rights which were and still are the primary legal avenue by which individual rights are protected. This being the case, why would the Second Amendment be included as the only amendment not to protect an individual right? Actually, James Madison (“Father of the Constitution”) originally proposed that the right to keep and bear arms should be a textual amendment to be included in the Constitution in Article I, Section 9 in the section limiting Congress’ power over individual citizens.
To those who would say that times have changed and that the Constitution should be “modernized”, then go right ahead but follow the mechanism the Founders designed. The amendment process (Article V) was intended to make the Constitution changeable to meet the needs of an evolving America, but it was to be with the “consent of the governed” through the states, not as an edict from unelected federal judges or through the encroachment of a despotic legislative body. And, lest we forget, the U.S. Constitution was predicated on the foundational basis of one timeless and transcendent truth – the fallibility and perfectibility of man. In other words- human nature as reflected in what is often referred to as the doctrine of original sin. Times may have changed but, at their core, people have not! We remain corruptible and certainly so by power and greed. This is why man cannot, must not be the final arbiter of law and truth. We must remain a nation of laws, not men.
I could expand this article to include more information to support not only the historic component of the Second Amendment, but also its wise and life-saving application and the statistical proof that more stringent gun laws serve only to further embolden and empower the criminal and subject the rest of society to greater vulnerability and risk. I could also reference recent Supreme Court Cases which have upheld the constitutionality of the individual right to gun ownership. However, these are issues you can do through your own research, and I encourage you to do so.
While I expect this article for the most part to be “preaching to the choir” in our neck of the woods, it nevertheless is important to know not only what you believe but why you believe it and be as prepared as possible to defend it. The importance of this will only increase in the future. Therefore, learn your Constitution and other founding documents. Learn them well and hold your elected officials accountable, especially those who took an oath of office which included upholding, preserving, protecting and defending the Constitution of the United States. If we don’t do this, then it will be just a matter of time before our freedom is a fond memory of which our grandchildren will know only from our stories and (perhaps but unlikely) their history books.