The Founders' Second Amendment

by Stephen P. Halbrook

  Iredell was more charitable. He granted the existence of unalienable rights but reiterated that Congress had no authority to legislate in any manner to violate them:

  Those rights which are unalienable are not alienated. They still remain with the great body of the people. . . . But when it is evident that the exercise of any power not given up would be a usurpation, it would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying . . . that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one.54

  Bloodworth was not persuaded. “Without the most express restrictions, Congress may trample on your rights. . . . Rulers are always disposed to abuse them.”55

  Samuel Spencer added that “we could not guard with too much care those essential rights and liberties which ought never to be given up. . . . When there is no rule but a vague doctrine, they might make great strides, and get possession of so much power that a general insurrection of the people would be necessary to bring an alteration about.”56 That would be precluded with a declaration “securing every unalienable right.”57

  By now the ultimate question—whether to adopt the Constitution—loomed. Bloodworth opposed adoption until amendments were adopted.58 Governor Johnston moved that the amendments be proposed after ratification and that the Constitution be ratified now. William Lenoir contended that the Constitution “endangers our liberties,” whereas it should “secure those rights which ought never to be infringed.”59 Lenoir saw grave peril in the powers of Congress:

  We find no provision against infringement on the rights of conscience. . . . They have also an exclusive legislation in their ten miles square, to which may be added their power over the militia, who may be carried thither and kept there for life. . . . They can disarm the militia. If they were armed, they would be a resource against great oppressions. . . . If the laws of the Union were oppressive, they could not carry them into effect, if the people were possessed of proper means of defence.60

  Richard D. Spaight retorted that ten states had already ratified, and only by ratifying now could North Carolina have had any influence on what amendments were adopted.61 As for the “ten miles square” capital, he demanded: “Is there the least colour or pretext for saying that the militia will be carried and kept there for life?” A claim that dissidents would be taken to the capital and tried without a jury was “an astonishing misrepresentation!”62

  Charles M’Dowall took a more moderate course: “I am for the strongest federal government. A bill of rights ought to have been inserted, to ascertain our most valuable and unalienable rights.”63 Willie Jones announced his intent to introduce amendments to be adopted prior to ratification.64

  James Iredell took the floor, refuting claims that the new government could criminalize free speech on the basis that the Constitution delegated power to Congress “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. They have no power to define any other crime whatever.”65 While Iredell was a poor prophet regarding the powers that Congress would later claim, this was the federalist position—Congress could not violate rights such as a free press and keeping arms because it had no power to pass criminal laws over those (or virtually any other) subject.

  Yet Iredell was conciliatory as to the eventual adoption of a bill of rights: “The first session of Congress will probably be the most important of any for many years. . . . [N] or do I doubt that every amendment, not of a local nature, nor injuring essentially the material power of the Constitution, but principally calculated to guard against misconstruction the real liberties of the people, will be readily obtained.”66

  The next day, the motion of Willie Jones was taken up. “I am very sensible that there is a great majority against the Constitution,” he averred.67 They had every right to ref use to ratify the Constitution and would thereby achieve their goal of amendments:

  I have, in my proposition, adopted, word for word, the Virginia amendments, with one or two additional ones. . . . There is no doubt we shall obtain our amendments, and come into the Union when we please. Massachusetts, New Hampshire, and other states, have proposed amendments. New York will do also, if she ratifies.68

  Iredell urged that Virginia’s example of ratification previous to amendments be followed and predicted the adoption of worthy amendments “such as tend to secure more effectually the liberties of the people against an abuse of the powers granted.”69

  William R. Davie “hoped they would not take up the whole collectively, but that the proposed amendments would be considered one by one.” However, the great majority voted to adopt the resolution as it stood.70

  On the next day, August 1, 1788, James Iredell conceded that “all debate is now at an end. It is useless to contend any longer against a majority that is irresistible.”71 The resolution then adopted by the whole house required that, prior to North Carolina’s ratification, there be laid before Congress or a convention of states a declaration of rights “securing from encroachment the great principles of civil and religious liberty, and the unalienable rights of the people,” together with amendments to “the most ambiguous and exceptionable parts” of the Constitution.72

  The resolution included a “Declaration of Rights” and a separate document entitled “Amendments to the Constitution” with structural changes. The Declaration was copied virtually word-for-word from Virginia’s recommendations. The first three sections declared the natural rights to life and liberty, including the means of “protecting property” and obtaining “safety”; that “all power” is invested in “the people”; and that “the doctrine of non-resistance against arbitrary power” is absurd.73

  The Declaration included three successive sections all beginning with the same clause: “That the people have a right peaceably to assemble together . . .” (§ 15); “That the people have a right to freedom of speech” (§ 16); and finally Section 17:

  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 defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.74

  Three more sections followed on military and religious matters: Soldiers may not be quartered in houses; “any person religiously scrupulous of bearing arms” may be exempt; and religion may be freely exercised.75 The above six provisions would be distilled into what became the First, Second, and Third Amendments to the Constitution.

  The separate “amendments” dealt exclusively with the powers of the state and federal governments. Again mirroring the Virginia proposals, it began with a Tenth Amendment-type declaration “that each state in the Union shall respectively retain every power” not delegated to the federal government.76 The succeeding structural amendments included three concerning military matters: No standing army in peacetime without consent of two-thirds of the Congress; no enlistments for more than four years except during war; and finally:

  That each state respectively shall have the power to provide for organising, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same; that the militia shall not be subject to martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.77

  The North Carolina convention went beyond that of Virginia and added several more structural amendments. For instance, Congress “shall not introduce foreign troops into the United States” without a two-thirds vote.78

  James Iredell mad
e one last attempt to turn the tide. He proposed that the Constitution be adopted prior to amendments, but that a few of the structural amendments—not including the declaration of rights—be recommended for adoption at a later date. The amendments he recommended included, among others, the above quasi-Tenth Amendment provision and the proposal that “Each state respectively shall have the power to provide for organising, arming, and disciplining, its own militia, whensoever Congress shall omit or neglect to provide for the same.” The convention rejected Iredell’s motion by a vote of 84 to 184.79

  The next day, August 2, the convention had but formally to adopt the resolution of refusing to ratify the Constitution before amendments were proposed, and the vote was the reverse of the above vote.80

  The great state conventions of 1788 were finished. James Madison now expressed positive support for a bill of rights—a complete break from the previous spring when Hamilton, in The Federalist No. 84, characterized a bill of rights as “dangerous.”81 Madison sent a pamphlet with proposed amendments to Thomas Jefferson on October 17, explaining:

  Not a few, particularly in Virginia have contended for the proposed alterations from the most honourable & patriotic motives; and that among the advocates for the Constitution, there are some who wish for further guards to public liberty & individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added . . . . My own opinion has always been in favour of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.82

  Madison also wrote to Edmund Pendleton, just three days later, noting the dangers of a new constitutional convention, which antifederalists were advocating. The alternative was that Congress would propose a bill of rights: “In the mean time the other mode of amendments may be employed to quiet the fears of many by supplying those further guards for private rights which can do no harm to the system in the judgments even of its most partial friends . . . .”83 The references in these letters to “individual rights” and “private rights” were hardly accidental—Madison opposed amendments that would have changed the distribution of federal-state powers.

  How Madison came to propose the Bill of Rights in Congress the following year is the subject of the next chapter. By coincidence, the same day Madison would do so—June 10, 1789—William R. Davie wrote him a letter noting: “Our Convention meet again in November, with powers to adopt the Constitution and any Amendments that may be proposed; this renders it extremely important that the Amendments, if any, should be proposed before that time.”84 Madison and his colleagues did just that, and North Carolina adopted the Constitution on November 21, 1789, several weeks after Congress passed the Bill of Rights and proposed it to the states.85

  “To Keep and Bear Their Private Arms”

  CHAPTER 12

  Mr. Madison’s Amendments

  MADISON’S PROPOSED AMENDMENTS

  In the first federal elections under the new Constitution, James Madison ran for a seat in the House of Representatives against James Monroe, who supported the antifederalist cause. Departing from previous federalist positions, Madison championed a bill of rights and won the election.1 In what is thought to be a speech he drafted to deliver to the House had he won the election, Monroe advocated a declaration of rights, stating:

  The following appears to be the most important objects of such an instrument. It should more especially comprise a doctrine in favour of the equality of human rights; of the liberty of conscience in matters of religious faith, of speech and of the press; of the trial by jury of the vicinage in civil and criminal cases; of the benefit of the writ of habeas corpus; of the right to keep and bear arms.... If these rights are well defined, and secured against encroachment, it is impossible that government should ever degenerate into tyranny.2

  As fate would have it, Madison would write a similar speech. The Virginian had a compilation of proposed amendments from around the country, including those from the state conventions.3 In his notes for a speech introducing what became the Bill of Rights, Madison noted three kinds of objections to the Constitution: “the theory of its structure,” the “substance of its powers,” and “omission of guards in favor of rights & liberties.” The last objection was the “most urged & easiest obviated.” He continued: “Read the amendments—They relate 1st to private rights.”4 Madison observed a “fallacy on both sides—espec[ially] as to English Decl[aratio]n. of Rights—1. mere act of parliament. 2. no freedom of press—Conscience... attainders—arms to protest[an]ts.”5

  Madison thus saw the rights he would propose, such as freedom of the press and keeping and bearing arms, as not involving the structure or powers of government but as involving private rights. The “fallacy” of the English Declaration was that it was a mere legislative act that Parliament could repeal; by contrast, the American bill of rights would be part of the Constitution and not subject to repeal by Congress. Moreover, the English Declaration either omitted or unreasonably limited fundamental rights. Freedom of the press and religion were not recognized at all, and bills of attainder were not prohibited. The right to keep and bear arms was limited to Protestants, further limited by class, and limited yet more by the legislature: “That the Subjects which are Protestants, may have Arms for their Defence suitable to their Condition, and as are allowed by Law.”6

  On June 8, 1789, in the House of Representatives, Madison proposed his long-awaited bill of rights. Madison’s draft contained both philosophical declarations and substantive restrictions. First, the Constitution would contain a new preamble declaring fundamental principles: “all power is originally vested in, and consequently derived from the people”; “government is instituted... for the benefit of the people”; and “the people have an indubitable, unalienable, and indefeasible right to reform or change their government....”7 Having the ultimate power, it went without saying that the people had the right to be armed.

  Madison then proposed that the text of the Constitution be amended to limit the powers of Congress. Civil rights could not be abridged on account of religious belief, no national religion could be established, and the rights of conscience could not be “in any manner, or on any pretext infringed.”8 “The people shall not be deprived or abridged of their right to speak,” and a free press, “as one of the great bulwarks of liberty,” would be inviolable.9 “The people shall not be restrained from peaceably assembling and consulting for their common good,” and petitioning the legislature for redress of grievances.10 The next guarantee referred to the same entity with rights—“the people”—and interposed a philosophical declaration between two restrictions: “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.”11

  This provision began with a substantive guarantee in the nature of a command that the right to keep and bear arms shall not be infringed. While the Virginia, New York, and North Carolina proposals stated simply “that people have a right to keep and bear arms,” Madison inserted the stronger guard that this right “shall not be infringed.”

  Madison’s proposal next made the philosophical declaration that a well­armed and regulated militia is “the best security of a free country.” While the state conventions had used the term “free state,” this reverted to the language of The Federalist No. 29, in which Hamilton stated that “a well-regulated militia [is] the most natural defence of a free country....”12 Whichever way worded, this declaration did not limit the substantive right but gave the chief political reason for guaranteeing the right against governmental infringement. Keeping and bearing arms would be protected for all lawful purposes, but mention of self-defense, hunting, shooting at the mark (target shooting), and other purposes had no place in a federal Constitution that delegated no power to regulate these activities. Since Congress could raise a
nd support armies, the superiority of the militia in securing a “free” country must be declared. Moreover, conscientious objectors should not be forced to bear arms in military service.

  Other than the above substantive guarantees, most of the remainder of Madison’s resolutions related to procedural guarantees are about double jeopardy, search and seizure, and other criminal matters. A longer version of what became the Ninth Amendment concluded the limitations on the power of Congress:

  The exceptions here or elsewhere in the constitution, made in favour of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.13

  Of significance is where in the Constitution Madison would have inserted the substantive rights that became the First, Second, Third, Fourth, Eighth, and Ninth Amendments and portions of the Fifth and Sixth Amendments. These provisions would have been in Article I, Section 9, which exclusively provides for limits on federal power. The guarantees would specifically be placed between clause 3, which prohibits suspension of the privilege of the writ of habeas corpus, and clause 4, which prohibits passage of any bill or attainder or ex post facto law. Both the new and old provisions protected individual rights and did not concern the powers of the states vis-à-vis the federal government.