This page was last updated on May 2, 2018.
I hope readers learn as much reading this paper as I did writing it.
Unless noted otherwise, quotes in this paper come from the America’s Founding Documents section of the National Archives website. Quotes from other sources include links to those sources.
As always, do yourself a favor and do your own factchecking.
“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.” - Second Amendment to the U.S. Constitution.
Before getting into Amendment II, here’s some background.
Let’s start with the Declaration of Independence (DoI). The DoI preamble begins,
“The unanimous Declaration of the thirteen united States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, …”
Translation: Just as the “Creator” – not our governments - grants us our rights, we – “the governed” - endow our governments with “just powers.” This thought permeates the founding documents.
Let’s now look at the Constitution. “Many Americans, persuaded by a pamphlet written by George Mason, opposed the new government. Mason was one of three delegates present on the final day of the convention who refused to sign the Constitution because it lacked a bill of rights.
“James Madison and other supporters of the Constitution argued that a bill of rights wasn’t necessary because – ‘the government can only exert the powers specified by the Constitution.’ But they agreed to consider adding amendments when ratification was in danger in the key state of Massachusetts.” James Madison (JM) was our fourth President and is often referred to as the “Father of the Constitution.”
The problem was, while JM and other Founders considered this and other positions to be obvious, there was no guarantee future generations would share the vision of the Founders. Without the Constitution explicitly specifying “the government can only exert the powers specified by the Constitution,” future generations of the government were free to do what they wanted. Among others, it was this omission that led to the Bill of Rights.
I don’t know about you, but I didn’t know – or forgot - The Bill of Rights has a preamble. Here’s an excerpt describing the reason for The Bill of Rights.
“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
Thank goodness for George Mason, the Founders who eventually agreed with him, and ultimately the state legislatures that ratified The Bill of Rights. As we’ve seen all too frequently, those in power – regardless of ideology - routinely ignore “the powers specified by the Constitution.”
Getting back to the Second Amendment, it was ratified by three-fourths of the state legislatures on December 15, 1791. These first 10 Amendments are The Bill of Rights. It’s fairly obvious Amendment II is about “the security of a free State” and defending our country from its enemies, both domestic and foreign. Amendment II says absolutely nothing about hunting, self-protection, slavery, target competition, and so on.
As a reminder, there were 12 articles in the amendment proposal sent to the state legislatures for ratification. At the time, however, the states ratified only articles three through 12. Those ratified articles became the first 10 amendments, The Bill of Rights. “Article the first” remains unratified, but “Article the second” was ratified in 1992, nearly 203 years after its proposal. If you don’t know the story, do yourself a favor read how “Article the second” became Amendment XXVII.
When discussing Amendment II, most people get it wrong from the very beginning when they say Amendment II grants us the right “to keep and bear Arms.” That is not what Amendment II says, however. Amendment II says, “the right of the people to keep and bear Arms, shall not be infringed.” This is a huge distinction completely consistent with our founding documents. Amendment II does not grant us the right to bear arms; it affirms our pre-existing right “endowed by [our] Creator.”
The anti-Amendment II crowd tells us the right “to keep and bear Arms” really belongs to a “well regulated Militia,” not individual citizens. In the language of the day, “well regulated” meant something in good working order, not something under the control of government. Given the content of the Bill of Rights and its protections for individuals, who could interpret the Second Amendment to mean “the right of the people to keep and bear Arms, shall not be infringed” really means there is no right for individuals “to keep and bear Arms?” Right XIII of the Pennsylvania Constitution makes it clear the states really didn’t like the idea of “standing armies in the time of peace.” It’s an illogical stretch to believe the Founders would eliminate one of the things – an armed citizenry - that made the U.S. a reality, not a dream.
While the Founders were concerned about foreign enemies, the Founders were also concerned about potential future domestic “enterprises of ambition” by our government against us. Federalist #46, written by JM, spends a good bit of time on this topic. Here’s an excerpt.
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”
Note “the right of the people to keep and bear Arms” is not the only defense of the people. “The existence of subordinate governments” (states, counties, etc.) is also intended to defend against domestic “enterprises of ambition.”
It’s probably no surprise the usual suspects claim Amendment II is about slavery. The assertion is, among the jobs of slave-state militias were to hunt down runaway slaves and return them to their oppressors (aka “owners”), tamp down slave revolts, and so on. Without “the right … to keep and bear Arms,” this aspect of their duties would be more dangerous and may have emboldened slaves to leave and/or revolt. Even if true, it doesn’t matter whether or not slave states voted for Amendment II for the wrong reason. If criminals vote for a ban on firearms because they know they will still get firearms but their prey will be unarmed, will anti-gun activists refer to the ban as pro-criminal?
It’s a nice try, but the right to bear arms wasn’t a new idea and was part of some (all?) non-slave-state constitutions. The first Constitution of Pennsylvania (September 28, 1776) is one example. The PA Constitution, predating the U.S. Bill of Rights by 15 years, included “A Declaration of the Rights of the Inhabitants of the Commonwealth, or State of Pennsylvania.” Right XIII states,
“That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”
According to the Pennsylvania Historical & Museum Commission, “slavery never was prominent in Pennsylvania.” At the time around the 1776 PA Constitution, slavery was already on its way out of PA. Importing slaves became illegal in 1767 and in 1780 PA enacted “An Act for the Gradual Abolition of Slavery.” Though Vermont’s constitution abolished slavery in 1777, PA was the first state to abolish slavery because VT didn’t join the U.S. as the 14th state until 1791. Though any slavery is too much, there wasn’t enough in PA to make rounding up runaway slaves a PA priority for Amendment II.
While I believe the authors of Right XIII and Amendment II had the same intent and wanted to convey the same thought, notice the difference in the wording of Right XIII and Amendment II. Right XIII is more explicit about “why” it exists. Amendment II is stronger in conveying the idea that the “Creator” granted “the right of the people to keep and bear Arms,” not man.
Does this mean all weapons should be legal to own? The answer is “no” in my opinion. I think most of us would agree nukes, biological weapons, chemical weapons, 16” guns (like those on battleships), and so on shouldn’t be in private hands. Given the primary intent of Amendment II, does it make sense to ban combat-capable rifles? The challenge is to know where to draw the line.
Should all persons be allowed to own and/or use legal weapons? The answer is “no” in my opinion. I think most of us would agree children below a certain age shouldn’t be allowed to own and/or use firearms. A possible exception could be supervised gun safety classes at firing ranges.
What about background checks, and what should be checked? Done correctly, I think most people agree background checks make sense. The challenge is to know where to draw the line. What about felons?
What about persons with certain mental illnesses? After the Parkland, FL, school shooting, we read numerous stories claiming President Trump (R) and Congress repealed “Obama-era protection” to keep mentally ill persons from purchasing firearms. In truth, the “Obama-era protection” was not to take effect until about 11 months after BHO left office. Further, the repeal had no effect on pre-existing laws that “already [made it] illegal to sell guns to anyone ‘who has been adjudicated as a mental defective or who has been committed to a mental institution’ per Title 18 section 922(g) of the United States Code.” While almost every story “blamed” the NRA for the repeal, those same stories tended not to mention “the ACLU and 23 national disability groups” also opposed the rule. In summary, the rule placed persons with certain mental illnesses on a “no buy” list without a court hearing. A person could challenge his placement on the list only after he was already on it. If you’re interested, below are links to pieces from groups that pushed for and/or agreed with the repeal.
Wrapping up the “who should not have access to weapons” topic, there’s one thing to remember. If someone wants to get a weapon bad enough, no number of laws will stop him. If a gal can’t get her preferred weapon, she will find a suitable alternative, whether “better” or worse. Weapon bans are like the locks on your house; they stop only law-abiding citizens.
What about registering firearms? Given the stated purpose of Amendment II, it would be nuts to allow the government to know who owns what arms and where they are. That’s why both federal and some (all?) states require data about approved background checks to be deleted. According to the FBI NICS website, “Per Title 28, Code of Federal Regulations, Part 25.9(b)(1), (2), and (3), the NICS Section must destroy all identifying information on allowed transactions prior to the start of the next NICS operational day.”
Pennsylvania law prohibits a firearm registry, or does it? The problem is another “Pennsylvania law states that a firearms dealer’s state license will be revoked if the licensee fails to keep a record in triplicate of every firearm sold and retain the records for 20 years.” Though not as convenient as a state-run firearm registry, requiring firearms dealers to retain these records is a de facto firearm registry.
© 2004-2018 Robert W. Cox, all rights reserved.