Why the 2nd Amendment

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.

History

Influence of the English Bill of Rights of 1689

The right to have arms in English history is believed to have been regarded as a long-established natural right in English law, auxiliary to the natural and legally defensible rights to life. [1]

The English Bill of Rights emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the Bill. [2]

Experience in America prior to the U.S. Constitution

The minutemen symbolize ideals that helped to inspire the Second Amendment in part.

In no particular order, early American settlers viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes:

- deterring tyrannical government;[3]

- repelling invasion;

- suppressing insurrection;

 -facilitating a natural right of self-defense;

- participating in law enforcement;

- enabling the people to organize a militia system.

Which of these considerations they thought were most important, which of these considerations they were most alarmed about, and the extent to which each of these considerations ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, "the people have a right to bear arms for the defence of themselves and the state".

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights (English Bill of Rights of 1689),  Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.   While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.  Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone. 

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

“Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.” 

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with various state and regional militia units.  In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessian mercenaries.  Following the Revolution, the Articles of Confederation governed the United States.  Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men. [4]

They considered it bad that there was no effective federal military crackdown to an armed tax rebellion in western Massachusetts known as Shays' Rebellion.  Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers.  Subsequently, the Philadelphia Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.  Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power. [5]

James Madison did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions."

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when "the sanctions of society and laws are found insufficient to restrain the violence of oppression".  Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation, as Alexander Hamilton explained in 1788:  

“If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

There was an ongoing debate in the 1780s about "the people" fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of "the people" (as described by the Federalists) related to the ongoing revolution in France.  A widespread fear, during the debates on the ratification of the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens, or prohibiting citizens from arming themselves.  Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article 1, Section 8 of the US Constitution, the individual right to arm was retained and strengthened by the Militia Act of 1792 and the similar act of 1795.  [6]

Drafting and adoption of the Constitution and Bill of Rights

Struggling under the inefficiencies of the Articles of Confederation, delegates from Virginia and Maryland assembled at the Mount Vernon Conference in March 1785 to fashion a remedy.  The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model.  At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems. 

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.  Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.  Anti-federalists, however, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government.  Many Anti-federalists feared the new federal government would choose to disarm state militias.  Federalists countered that in listing only certain rights, unlisted rights might lose protection.  The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption.  This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.  The Constitution was declared ratified June 21, 1788, when nine of the original thirteen states had ratified it.  The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.  James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791. [7]

Ratification Debates

The Second Amendment was relatively uncontroversial at the time of its ratification.  Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season, though Whitehill's language was never debated.  Rather, the Constitutional delegates altered the language of the Second Amendment several times to emphasize the military context of the amendment and the role of the militia as a force to defend national sovereignty, quell insurrection, and protect against tyranny. 

A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny.  Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny.  Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny.  Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is "a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?” [8]

Noah Webster similarly argued:

“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, on any pretence, raised in the United States.” 

The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected.  Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights", which he proposed to be added to the Constitution. 

Patrick Henry, in the Virginia ratification convention June 5, 1788, argued for the dual rights to arms and resistance to oppression:

“Guard with jealous attention the public liberty.  Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force.  Whenever you give up that force, you are inevitably ruined.” [9]

In Federalist No. 46, James Madison confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as "afraid to trust the people with arms." He assured his fellow citizens that they need never fear their government because of "the advantage of being armed...." [10]

Samuel Adams proposed that the 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 peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some 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 their grievances: or to subject the people to unreasonable searches and seizures. [11]

Compromise in Congress Produces the Bill of Rights

James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:

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. 

On July 21, Madison again raised the issue of his Bill and proposed a select committee be created to report on it.  The House voted in favor of Madison's motion, and the Bill of Rights entered committee for review.  The committee returned to the House a reworded version of the Second Amendment on July 28.  On August 17, that version was read into the Journal:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms. 

The Second Amendment was debated and modified during sessions of the House in late August 1789. These debates revolved primarily around risk of "mal-administration of the government" using the "religiously scrupulous" clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

The next day, August 25, the Senate received the Amendment from the House and entered it into the Senate Journal. When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe: 

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. [12]

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right.  As a Representative explained, this change allowed each amendment to "be passed upon distinctly by the States."  On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause: 

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed. 

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words "for the common defence" next to the words "bear arms" was defeated.  The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed. 

The House voted on September 21, 1789 to accept the changes made by the Senate, but the amendment as finally entered into the House journal contained the additional words "necessary to": 

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. 

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the States. [13]

Intent and Purpose

The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant, the pre-existing right of individuals to keep and bear arms.  Although the amendment emphasizes the need for a militia, membership in any militia, let alone a well-regulated (trained) one, was not intended to serve as a prerequisite for exercising the right to keep arms.

The Second Amendment preserves and guarantees an individual right for a collective purpose.  That does not transform the right into a "collective right."  The militia clause was a declaration of purpose, and preserving the people's right to keep and bear arms was the method the framers chose to, in-part, ensure the continuation of a well-trained militia.

There is no contrary evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment was intended to apply solely to active militia members. [14]

Supreme Court Justice Joseph Story (appointed by James Madison in 1811):

"The importance of this article [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject.  The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.”  [15]

Congressman James Jackson (Georgia) commented on his vision of a militia:

"In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation, as well as invasion, and to prevent the greatest of all evils--a standing army." [16]

The fact that the militia can be called out to either suppress insurrections or act as the check of last resort is by no means contradictory. Claiming the Second Amendment does not include a check against a tyrannical government because the Constitution provides a means of suppressing insurrections, or defines as treason the taking up of arms against the government, is a non sequitur (a statement containing an illogical conclusion).

The following laws not only contradict any "riposte," but also show that non-militia members as well, were expected to "keep" arms at home:

"That all persons though freed from Training by the Law yet that they be obliged to Keep Convenient armes and ammunition in Their houses as the Law directs To others." The Colonial Laws of New York.

Persons exempted from enrollment and service in the militia were "required and enjoyned to provide and keep at their respective places of abode ... arms and ammunition." Laws of Virginia.  [17]

Was the militia clause meant to be restrictive? There is no evidence that was the intention. The writings of three constitutional commentators, who were contemporaries of the Founders, provide very strong evidence to the contrary. If the militia clause had meant to be restrictive rather than merely stating a rationale or purpose, it is hard to believe that these jurists would misconstrue the intent and meaning of the Second Amendment:

St. George Tucker - "The right of self defence is the first law of nature."

Joseph Story - "The right of the citizens to keep and bear arms has justly been considered, as the palladium (protection or safety; safeguard) of the liberties of a republic."

Examining the text, laws and customs of the time, and the words of the Founders and their contemporaries, the narrowest plausible reading of the Second Amendment is that it was meant to preserve and guarantee an individual right for a collective purpose. (That does not transform the right into a "collective right" or the right of a "collective.") The militia clause was a declaration of that purpose, and the clause following was the method the framers chose to, in part, ensure the continuation of a well-regulated militia. 

The Connecticut Constitution [18]

First Article…

Section 7. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. 

Section 15. Every citizen has a right to bear arms in defense of himself and the state. 

Excepts from an article by Walter E. Williams January 2, 2013

Rep. John Lewis, D-Ga., in the wake of the Newtown, Conn., shootings, said: "The British are not coming. ... We don't need all these guns to kill people." Lewis' vision, shared by many, represents a gross ignorance of why the framers of the Constitution gave us the Second Amendment.

Alexander Hamilton: "The best we can hope for concerning the people at large is that they be properly armed," adding later, "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government."

James Madison: "(The Constitution preserves) the advantage of being armed, which the Americans possess over the people of almost every other nation ... (where) the governments are afraid to trust the people with arms."

Thomas Jefferson: "What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms."

George Mason, author of the Virginia Bill of Rights, which inspired our Constitution's Bill of Rights, said, "To disarm the people – that was the best and most effectual way to enslave them."

Rep. John Lewis and like-minded people might dismiss these thoughts by saying the founders were racist anyway. Here's a more recent quote from a card-carrying liberal, the late Vice President Hubert H. Humphrey: "Certainly, one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of the citizen to keep and bear arms. ... The right of the citizen to bear arms is just one guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America but which historically has proven to be always possible."

How about a couple of quotations with which Rep. Lewis and others might agree? "Armas para que?" ("Guns, for what?") by Fidel Castro. There's a more famous one: "The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing." That was Adolf Hitler.

Here's the gun grabbers' slippery-slope agenda, laid out by Nelson T. Shields, founder of Handgun Control Inc.: "We're going to have to take this one step at a time, and the first step is necessarily – given the political realities – going to be very modest. ... Right now, though, we'd be satisfied not with half a loaf but with a slice. Our ultimate goal – total control of handguns in the United States – is going to take time. ... The final problem is to make the possession of all handguns and all handgun ammunition – except for the military, police, licensed security guards, licensed sporting clubs and licensed gun collectors – totally illegal" (The New Yorker, July 1976).

There have been people who've ridiculed the protections afforded by the Second Amendment, asking what chance would citizens have against the military might of the U.S. government. Military might isn't always the deciding factor. Our 1776 War of Independence was against the mightiest nation on the face of the earth – Great Britain. In Syria, the rebels are making life uncomfortable for the much-better-equipped Syrian regime. Today's Americans are vastly better-armed than our founders, Warsaw Ghetto Jews and Syrian rebels. 

January 2, 2013

Walter E. Williams is the John M. Olin distinguished professor of economics at George Mason University and a nationally syndicated columnist.  [19]

The Effects of Civilian Disarmament

Two Quotes

“You cannot invade the mainland United States. There would be a rifle behind every blade of grass.”  (Admiral Isoroku Yamamoto, WWII)

"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing. Indeed, I would go so far as to say that the supply of arms to the underdogs is a sine qua non for the overthrow of any sovereignty. So let's not have any native militia or native police. German troops alone will bear the sole responsibility for the maintenance of law and order throughout the occupied Russian territories, and a system of military strong-points must be evolved to cover the entire occupied country."

(Adolf Hitler, dinner talk on April 11, 1942, quoted in Hitler's Table Talk 1941-44: His Private Conversations, Second Edition (1973), Pg. 425-426. Translated by Norman Cameron and R. H. Stevens. Introduced and with a new preface by H. R. Trevor-Roper. The original German papers were known as Bormann-Vermerke.)

Gun Control Laws

The peaceful, law-abiding people will be discouraged from owning, carrying, using, and even learning more about or practicing with firearms. "Gun control" laws act to discourage firearms ownership and use by making it more expensive, embarrassing, difficult, or legally risky to have and use guns

Gun control laws discourage people, or impose costs on people but they do not affect evil minds and evil intentions.

Gun control laws make it necessary for people to rely upon their government or private defense providers. For most people, hiring a private bodyguard or other security service that would come anywhere close to the effectiveness of being personally armed is too expensive. So most people depend upon their government police and upon dialing Emergency 911

The more Draconian the gun control laws and policies, the more it is likely the civilians are unarmed.

When a government takes power with evil intentions, and extensive gun control laws are in place, then you have the set-up for destruction.  Most of the people have obeyed the laws and placed their self-defense trust in their governments. The people are vulnerable.

Meanwhile, the aggressors are undeterred by gun control laws.  The aggressors would include street criminals, organized crime, and in the extreme, government agencies (e.g. the Nazi SS, the Soviet KGB, various death squads).  In fact, the government agencies are usually specifically exempted from gun control laws.  Therefore, and again in the extreme, there are deliberate programs of persecution by government, as in Nazi Germany or in Soviet Russia / Ukraine or in Cambodia.  There are cultures of civilian powerlessness as in China during the Japanese invasion and rape of Nanking in 1937.  There is the malign neglect that allows armed parties to raid and attack defenseless people, as in El Salvador and Uganda.  In all cases, the imbalance of power, coupled with the people’s dependence upon the same entity that does not mind if they get killed or enslaved, produces the worst human suffering imaginable.

Therefore, the only imaginable reason for having "Gun Control" is to subjugate a countries population making them complaisantly reliant on their Governments to protect them, but offer no protection from those very same Governments.  Look at the US today.  No longer do we have Police "Who Protect & Serve", but Law Enforcement who show up afterwards to clean up the mess and perhaps track down the perpetrators

When a civilian population widely possesses firearms such as rifles, shotguns, and handguns, along with ammunition for them, and the population has the training with the weapons along with the ethic of self-defense, then the population is very unlikely to be subjugated and victimized by aggressors, the government, or any invading force.

Endnotes:

Note: Number 16 omitted inadvertently, text is Number 17


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