Events in history are too often taken for granted and that which is easiest to accept and understand, despite it being false, is too often held as truth. American legal scholars throughout the nineteenth century understood the Second Amendment to mean that every individual had the right to keep firearms and use them in self defense or to hunt game.[1] However, the legal scholars of the 1800’s lived in a drastically different world than the one we inhabit. Gun related deaths in America today are tallied in overwhelming numbers every year and the revolvers and repeating rifles of the old west pale next to the automatic assault rifles of today. Gun violence is a pervasive fear in America and headlines of gun related incidents can be found in newspapers across the country every day. Perhaps it is time to reconsider what the legal scholars of old took for granted: that the Second Amendment guarantees a right for every individual to own firearms. Typically, the notion of an individual right is an originalist one. Originalists interpret the Constitution according to the original intent of the framers, and thus, when the Second Amendment appears to mean that every individual can own a gun, that is what it means to an originalist because if the founding fathers wanted the Second Amendment to grant states the right to maintain militias, then they would have made that thought more explicit. If originalists, however, were to delve deeper into American history, they would discover that the original intent of the Second Amendment was, in fact, the latter: that states are guaranteed the right to maintain militias.

In order to understand the framers’ decision in adopting the Second Amendment, one must first examine the events of the Constitutional Congress. In 1787, the Founding Fathers met in Philadelphia to draft what became the nation’s Constitution. Among the issues the Founders had to sort out were separation of powers, the role of religion in their new nation, the right of the people to be secure in their properties and in themselves, and the right of the people to express their views. Some of these issues were later hashed out and made more explicit in the Bill of Rights, but among them was not a concern about gun ownership. Such an anxiety did not weigh heavily on the Founders’ minds, but something else did: a great fear of tyranny. Thus, the Framers set about establishing ways of preventing their own government from becoming oppressive in the future. One way in which the Framers achieved this, under pressure from even more fearful Anti-federalists, was by allowing individual states to have militias.

First of all, the importance of militias in the Framer’s minds should not be understated. After the Revolutionary War, most people feared large standing armies as the tool of an oppressive government. The unknown author of the Brutus anti-federalist papers[I] wrote that “the power to keep standing armies in time of peace, has been justly objected, to this system, as dangerous and improvident.”[2] Standing armies were so important they had even been listed in the Declaration of Independence, as one of the many reasons for rebellion.[II] After all, it was the English professional army that they had fought, not the English militia. A militia is always drawn from the citizenry and it was this aspect that appealed most to the founding fathers. Adam Smith, the Scottish philosopher, also recognized the value of the “citizen-soldier.” He wrote: “The citizen-soldier may be defined as one whose interest in, and dedication to, military affairs is secondary to the major business of his life. He is, by vocation, a scholar, physician, lawyer, butcher, baker, candle-stick maker, or framer, he is, by avocation, a soldier.”[3] This secondary interest that Adam Smith described is precisely what the founding fathers, or at least some of them, sought in order to prevent the military from becoming an oppressive government. Thus, with all their fears about oppression and standing armies, the issue of militias was among the topics of heated debate at the Constitutional Convention.

Before the Revolution, all the colonies had their own militias and were lobbying for their continued use at the constitutional convention.[4] In fact, of all possible subjects pertaining to gun ownership, the topic of militias was the only topic of discussion. According to the official records of the constitutional convention, there was much discussion of standing armies and militias and absolutely no mention of an individual right to bear arms.[5] Thus, when gun rights proponents argue that the original intent of the Second Amendment was to guarantee an individual right to bear arms for self-defense and hunting, the argument is grievously flawed since such notions as self-defense and hunting were hardly entertained at the constitutional convention. In The Complete Anti-federalist by Herbert Storing, a compilation of anti-federalist proposals for the convention, there were seventy-two references made to militias and standing armies.[6] For example, the author of the eighth Brutus paper wrote: “If the general legislature deem it for the general welfare to raise a body of troops, and they cannot be procured by voluntary enlistments, it seems evident, that it will be proper and necessary to effect it, that men be impressed from the militia to make up the deficiency.”[7] There were only two proposals involving an individual right to bear arms for hunting purposes but these were flatly rejected.[8] By looking at these statistics, one can see that Congress accepted only proposals which directly dealt with the issue of the militia and none that concerned individual rights. Perhaps the most convincing argument can be found in earlier versions of the Second Amendment. James Madison, the man who physically wrote the Second Amendment, wrote two drafts, the first of which read: “A well armed and well regulated militia being the best security of a free country…”[9] Those familiar with the strangely worded amendment will notice that the word “country” was later changed to “state” in the final draft. According to Constance Crooker, author of Gun Control and Gun Rights, Madison made the change in order to assure states of their right to keep and maintain militias.[10] Also, the phrase “well armed” was omitted from the final draft and thus draws emphasis away from the gun ownership aspect of the Second Amendment. If the original intent was indeed to guarantee an individual right to bear arms, then Madison surely would not have made a change that undermined the Second Amendment’s purpose.

Madison himself was strongly pro-militia and any rights that he thought individuals should have regarding arms were entirely null and void except for the express purpose of serving the militia. Madison wrote: “Americans have the right and advantage of being armed, unlike the citizens of other countries, whose governments are afraid to trust people with arms… A well regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country.”[11] Although it might seem as if Madison is advocating an individual right in the first clause of the quotation, his negative reference to “other countries” and heavy emphasis on the importance of citizen-soldiery reveal what he considered most important: a well regulated militia. Curiously, the phrase “well regulated militia” appears in more places than the Second Amendment. New York, North Carolina, Rhode Island, and Virginia all made proposals at the constitutional convention, using the phrase “well regulated militia” in a similar context to the Second Amendment.[12] All of these proposals were aimed at granting states the right to keep and maintain militias. However, this historical evidence is impressive but is far from conclusive. For example, pro-gun advocates routinely point to a joint Virginia-North Carolina proposal that would have allowed states to organize militias when Congress failed to do so.[13] The proposal was rejected by the convention, an odd decision if the founding fathers were really concerned about states’ rights.

Pro-gun advocates might also argue that the Second Amendment was intended to serve both debated purposes: to grant states the right to maintain militias and to ensure individuals their right to keep and bear arms. The pro-gun advocates could argue that, if militias are drawn from the citizenry and militia members are required to provide for themselves, then the Second Amendment should guarantee an individual right in order to ensure that militias are well-regulated. At first glance, this logic appears sound. However, it cannot be the case for two reasons. First of all, it is true that militias are drawn from the citizenry, back before militias became the National Guard, but people could not simply join militias despite the Uniform Militia Act of May 8^th, 1792. The Uniform Militia Act designated all able-bodied males ages 17-45 to be in the militia.[14] Article I, Section 8, however, of the Constitution, grants Congress the power to maintain and arm the militias: “To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”[15] Note that Article I, Section 8 defers to the states the duty of appointing the officers of the militia. Therefore, able bodied men could not just join a militia; they had to be chosen or appointed.[16] Constance Crooker makes the analogy that if people were able to join or even form militias at will, it would be just as dangerous as if they were allowed to join or form any jury so they might sit in judgment of their peers.[17]

The next reason why the Second Amendment cannot protect both states’ rights and individual rights guarantees is based upon the history of gun control laws. Proponents on both sides of the Second Amendment debate agree that the Amendment is derived, as are many American laws, from old English laws pertaining to gun ownership.[18] Gun rights advocates might spin the historical evidence one way, but when looking at these old English laws it is apparent that a universal right to bear arms was never granted to the citizenry. During the reign of King Henry the VII, wheel-locks were entirely banned as a result of a public fear of the poor and later, in 1541, Parliament limited the ownership of guns to the nobility and the wealthy.[19] This might have been one of the fearful European countries of which James Madison spoke. However, English laws later became more relaxed. Meanwhile, in colonial Virginia, the expropriation of guns was allowed in a crisis and the government of Connecticut was allowed to impress arms for military service.[20] The word “impress” in this instance means that citizens’ guns could be confiscated and used by soldiers. Thus, people in colonial Connecticut kept their guns for the defense of the colony, not for their personal use alone. Finally, in 1689, the English Bill of Rights gave Protestants the right to keep and bear arms for the purpose of self defense. The English Bill of Rights also granted noblemen the right to organize feudal militias so that the central government could not dominate the military and become tyrannical.[21] The English Bill of Rights is the closest legal predecessor to the Second Amendment because of its militia purpose and it is important to note that in the English Bill of Rights, as in all the other laws mentioned, no universal right for all persons to own firearms is ever granted to the citizenry.

While delving into the history of firearms in the United States, the question inevitably arises as to how many individuals in the citizenry who could own guns actually did? Michael Bellesiles, the author of Arming America: the Origins of a National Gun Culture, has an answer. He painstakingly reviewed documents from the colonial era, primarily wills but also everything from legislative documents to letters of correspondence, in order to discover the level of gun ownership in colonial America and to discover what role guns held in society. After tallying his data, Bellesiles concluded that in Massachusetts, for instance, only twenty-three percent of males over the age of sixteen owned a firearm.[22] This low ownership is accounted for by the fact that guns in those days were often expensive imports from Europe.[23] Also, contrary to popular belief, the necessity for guns was even lower than the rate of ownership. Colonial Americans seldom hunted for food, rather, they grew crops, and when they did hunt, they often chose to trap animals rather than shoot them.[24] As for militias, Bellesiles notes that militias were dismal failures compared to professional armies. The militias were so poorly-regulated because of a lack of sound firearms and, of course, civil reluctance to fulfill militia requirements.[25] As a testament to militia’s laughable presence on the battle field, Bellesiles concluded that at the battle of Lexington, only 7 of the 130 militiamen present fired their weapons.[26] These facts raise an interesting point: if gun ownership in colonial America was so low and guns did not pose a threat to society as they do today and, in addition, if militias were a nuisance in peace time and abysmal failures in war, then the original intent of the Second Amendment might very well have been to guarantee an individual right to keep and bear arms. Pro-gun advocates, no doubt, rejoice over such historical reasoning, but the original intent and the consequences that occur over two hundred years later are two very different things. In an age when students live in fear of rogue gunmen with terrifying arsenals of automatic weapons, society may be forced to reconsider such an intent, if it was the intent of the framers at all. Thankfully for gun control advocates, the Supreme Court has long been of the persuasion that the Second Amendment was intended to safeguard states’ rights and therefore, society need not yet launch an appraisal of the individual right to bear arms.

Throughout the years, the Supreme Court has decided, for varying reasons, that the Second Amendment has a states’ rights purpose. In 1939, the U.S. Supreme Court heard the case of U.S. v. Miller, the last case to directly question the Second Amendment for the sixty-nine years leading up to D.C. v. Heller in 2008. The case involved Jack Miller, a bootlegger, who failed to pay a two-hundred dollar interstate gun tax on his eighteen-inch shotgun required by the National Firearms Act of 1934.[27] Miller argued that the National Firearms Act violated the Second Amendment. A lower court judge agreed and threw out the case.[28] Miller and some of his bootlegging buddies promptly disappeared before the U.S. could appeal and only the U.S. was represented before the Supreme Court.[29] The Supreme Court voted in favor of the United States, holding that Miller was not protected by the Second Amendment since the Justices did not think that an eighteen-inch shotgun was suitable for service in a militia.[30] The decision reads in part: “…an eighteen-inch shotgun does not have a reasonable relation to the preservation or efficiency of a well regulated militia.”[31] In summary, the Supreme Court ruled that the Second Amendment does not grant a right for each individual to keep and bear arms, but rather that the relationship of that weapon to use in a well-regulated militia grants the right for it to be born. It should be noted that U.S. v. Miller is not the definitive Supreme Court case on the Second Amendment; in fact, it was preceded by two other cases: U.S. v. Cruikshank (1876) and Presser v. Illinois (1886).[32] The Supreme Court in both of these cases decided that the Second Amendment does not guarantee an individual right to bear arms.[33] U.S. v. Cruikshank was decided on the grounds that the Second Amendment was not “integrated.” What the Court meant was that the Second Amendment only applied to the federal government and states could choose not to recognize the amendment.[34] As ridiculous as this reasoning sounds, one should note that U.S. v. Cruikshank and Presser v. Illinois were decided before the Court later applied the Bill of Rights to the states through the Fourteenth Amendment. In addition, any shreds of legal justifications in the two cases that preceded U.S. v. Miller are often disregarded because the decisions were undoubtedly biased. Cruikshank involved a group of southern blacks who asserted their Second Amendment right and were forcefully disarmed by the Ku Klux Klan.[35] Also, the decision in Presser v. Illinois[III], which involved German immigrants, in the words of Gregg Carter, the author of Gun Control in the United States, “smacks of bigotry.”[36]

However, District of Columbia v. Heller, the newest case being decided by the Supreme Court, is different from its three predecessors and U.S. v. Miller is an unlikely precedent. This is because Miller was decided on the basis that only arms “having a reasonable relation” to use in a militia are protected by the Second Amendment, and the gun involved in D.C. v. Heller is a pistol. Clearly a pistol would make for an adequate side arm if militias were called upon.[37] The law in question is a District of Columbia statute that forbids the registration of handguns in the District of Columbia.[38] Unregistered handguns are, of course, illegal. Thus, the law effectively forbids the ownership of handguns in the District of Columbia.[39] Dick Anthony Heller wanted to keep a handgun at his home for the purpose of self-defense; he did not fit any of the exceptions to the D.C. statute, such as being a police officer, and was thus prevented from owning the gun.[40] Heller then challenged the constitutionality of the statute and won a 2-1 victory in the D.C. Circuit Court.[41] The Circuit Court majority wrote: “Once it is determined that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.”[42] The United States appealed and the case went before the Supreme Court. D.C. v. Heller is unique because the law in question directly prohibits the ownership of a type of firearm instead of adding requirements for ownership like the interstate tax questioned in U.S. v. Miller. As a result, the Supreme Court will have to directly address the core meaning of the Second Amendment and make a decision which could have a momentous impact in the future. Either way the Court decides, they will be setting a powerful precedent.

At this point, one may wonder: why the big Supreme Court case? Why the big debate in the first place? The meanings of other amendments are not so heavily debated, why is the Second Amendment so controversial? These are all valid questions and the crux of the matter, with all due respect to James Madison, is that the Second Amendment is poorly written and hard to understand. To refresh the reader’s memory the Second Amendment 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. William van Alstyne, professor of law at William and Mary Law School, notes that “the Amendment is confusing, ‘non-sequitur’ in midsentence.”[43] In addition, if one examines the two main clauses of the Amendment, the operative clause (the what) and the purpose clause (the justification), one will find that the relationship between them is confusing.[44] The purpose clause (A well regulated…state…) clearly asserts that militias are important to a free state. However, the operative clause (…the right… infringed.) does not directly compliment the importance of militias. In fact, it leaves several questions unanswered. For example, it does not specify the relationship of “the people” to well-regulated militias, the very definition of a “well-regulated militia” is not provided, and it does not mention or negate the use of arms for purposes other than use in a militia. These questions and others have been debated by legal scholars and linguists alike.

Perhaps the strongest of all arguments that pro-gun advocates could use regards the phrase “the people.” Gun control advocates understand “the people” to mean something other than “everyone,” people in a militia for example. However, Mark Tushnet, the author of Out of Range, points out that “the people” is used collectively, referring to everyone, in both the First and Fourth Amendments.[45] Pro-gun advocates rightly point out that, in the context of the Bill of Rights, it is likely, given the connection, that the Second Amendment does grant an individual right. Of course, the phrase “the people” is only one piece of the puzzle.

The first and most noticeable puzzle piece is the mention of a “well-regulated militia.” At first glance most people understand the phrase to mean a militia that is smoothly and efficiently operated and thus, disregard the phrase as having any importance to the central meaning of the Amendment. Pro-gun advocates, however, argue that “well-regulated” means efficient as well as “not heavily regulated,” meaning that the militias should not be disarmed.[46] The argument was prompted by the fact that Article I, Section 8, of the Constitution gives Congress the burden of training and supplying the militia, and there would be no purpose to making the Second Amendment redundant on the matter and so it must mean something else.[47]

Finally, the last points of linguistic debate are connotations of military service in the Second Amendment. Linguists agree that the word “keep” implies an individual right but the phrase “bear arms” is a point of contention.[48] Most linguists say that arms are only borne against other people. [49] For example, arms are borne against the enemy or in self-defense, but no one, not even in 1791, would say that arms can be borne against deer. Thus, this argument seems to support the militia and states’ rights interpretation of the Second Amendment because it grants individuals the right to keep arms only for military service. However, the Department of Justice rightly pointed out recently that “arms can also be borne in self-defense.”[50] Therefore, pro-gun advocates speculate that the founding fathers could have been concerned over a substantive right to self-defense.

Whatever concern or whatever intent the founding fathers had, the legal scholars of the twenty-first century may never know. Although the historical evidence seems to suggest a states’ rights purpose to the Second Amendment, the evidence is not perfect and there are legitimate counter arguments for the individual rights theory. Although the legal precedents define the Second Amendment as supporting states’ rights, these decisions are questionable. Two of the three Supreme Court decisions addressing the Second Amendment are invalid as precedents today and the other deals with a very specific instance; in addition a whole new precedent is about to be created, one with more worth and broader consequences than any of its predecessors. Finally, the words of the Second Amendment themselves have become subjects of debate. Both linguists and legal scholars have picked apart each clause and each adjective, participle, and verb and have still not found conclusive proof for either side of the Second Amendment debate. Perhaps, with no answer in sight, it is time for society to consider what it feels the Second Amendment should mean. At least then the gun debate would deal with the effect on people instead of with the tedium of a centuries old law.

Sources Cited

1. Carter, Gregg Lee. Gun Control in the United States. ABC-CLIO Inc., 2006. Provides Supreme Court case information.

2. The United States Constitution. Establishes the three branches of government and their respective duties.

3. Crooker, Constance E. Gun Control and Gun Rights. Greenwood Press, 2003. Provides an unbiased look at the gun debate. Includes historical information and current issues.

4. Bellesiles, Michael. Arming America: the Origins of a National Gun Culture. Soft Skull Press, 2003. Mainly provides historical data for the current gun debate.

5. D.C. v. Heller http://www.scotuswiki.com/index.php?title=DC_v._Heller Provides the details of D.C. v. Heller.

6. Henderson, Harry. Gun Control. Facts on File Inc., 2003. Contains historical data.

7. A Militia of One (Well Regulated). New York Times, Sunday January 13^th, 2008. A look at the current debate from the language perspective.

8. Unknown Author, Brutus paper #8 (The papers were untitled by the author) http://www.constitution.org/afp/brutus08.txt Primary source. Includes arguments against standing armies and against federal control of taxation.

[I] The Brutus papers were sixteen essays published in the New York Journal. The author is unknown but most scholars credit Robert Yates, a New York Judge, with the works.

[II] “He [the King] has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”- Declaration of Independence

[III] Presser v. Illinois actually involved a sword.

[1] Constance E. Crooker. Gun Control and Gun Rights, 62.

[2] The Anti-Federalist Papers, Brutus #8. Unknown author. http://www.constitution.org/afp/brutus08.txt

[3] The Citizen-Soldier Under Federal and State Law. West Virginia Law Review. http://www.constitution.org/mil/cmt/WhiskerCitizenSoldier.htm

[4] Crooker, Gun Control and Gun Rights, 46.

[5] Ibid, 61.

[6] Ibid, 61.

[7] The Anti-Federalist Papers, Brutus #8. Unknown author. http://www.constitution.org/afp/brutus08.txt

[8] Crooker, Gun Control and Gun Rights. 61.

[9] Ibid, 60.

[10] Ibid, 60.

[11] Ibid, 59.

[12] Ibid, 61.

[13] Ibid, 63.

[14] Ibid, 61.

[15] James Madison, et al. The United States Constitution. Ye Ole Printing Press, 1787. Article I, Section 8.

[16] Crooker, Gun Control and Gun Rights. 61.

[17] Ibid, 61.

[18] Ibid, 58.

[19] Ibid, 45.

[20] Ibid, 59.

[21] Ibid, 58.

[22] Michael Bellesiles. Arming America: the Origins of a National Gun Culture, 447.

[23] Ibid, 136.

[24] Ibid, 136.

[25] Ibid, 140-153.

[26] Ibid, 172-173.

[27] Harry Henderson. Gun Control, 53.

[28] Ibid, 53.

[29] Ibid, 53.

[30] Ibid, 53.

[31] Ibid, 53.

[32] Gregg Lee Carter. Gun Control in the United States, 128-129.

[33] Ibid, 128-129.

[34] Ibid, 128.

[35] Ibid, 128.

[36] Ibid, 129.

[37] D.C. v. Heller. http://www.scotuswiki.com/index.php?title=DC_v._Heller

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] A Militia of One (Well Regulated) New York Times, Sunday January 13^th, 2008.

[44]Ibid.

[45]Ibid.

[46] Crooker, Gun Control and Gun Rights. 64.

[47] Ibid, 64.

[48] A Militia of One (Well Regulated) New York Times, Sunday January 13^th, 2008

[49]Ibid.

[50]Ibid.

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