In the Revolution, the patriots asserted a right to bear arms for the common defense against the established government which they deemed as lawless. They, not the lawless government, decided what was the common defense and when to bear arms in what they perceived to be the common defense.
The clause thus might have been interpreted liberally to allow the bearing of arms for lawful purposes, with the greatest protection for the important civic purpose of the common defense. The common defense could include armed defense against foreign aggression, insurrection, domestic tyranny, and criminal violence.
The clause might also have been interpreted strictly as allowing arms to be borne only for “the common defence,” and only as defined by the government. Bur it would be a curious “right” if it could be exercised only by persons selected by the government and only when the government so ordered.
Similarly, the earlier version of the right of the people to assemble “for their common good”123 could have been interpreted narrowly to limit that right only to the “common good” as defined by government. But a “right” to assemble only with the government’s permission would be no right at all.
Rejection of both the “common defence” and “common good” phrases expressed an intent that the people have a right to keep and bear arms, and to assemble, for private as well as public purposes. Moreover, the decision of whether to exercise these rights rests with the people, not the government.
The Senate then made a change in the precatory clause of the Second Amendment. The declaration that a well regulated militia is “the best security of a free state” was neutralized or perhaps strengthened to state that a well regulated militia is “necessary to the security of a free state.”124 This met Gerry’s objection in the House debate that “a well regulated militia being the best security of a free State, admitted that a standing army was a secondary one.”125 The Senate then passed its final version: “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.”126
After completing work on other provisions, the Senate then resolved the passage of the proposed amendments by over the necessary two-thirds vote and transmitted such passage back to the House of Representatives.127 On September 19 and 21, the House debated and agreed to the Senate amendments. A conference committee—including James Madison, Roger Sherman, and John Vining from the House and Oliver Ellsworth, Charles Carroll, and William Paterson from the Senate—met and resolved final details.128
On September 25, 1789, the Senate agreed to the House resolution approving the final version of the amendments and recommended it to the states (including North Carolina and Rhode Island, which had not yet ratified the Constitution) with a preamble initiated in the Senate.129 It stated: “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....”130 The Second Amendment (the fourth article of the amendments submitted to the states) as it finally passed Congress read: “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.”
CHAPTER 13
The Bill of Rights in the States
THE ADOPTION of the proposed amendments by the states was by no means a foregone conclusion, and the ratification struggle ensued through 1791.1 Three positions emerged during the controversy: The proposed amendments were adequate, further guarantees were needed, and freemen had no need of a bill of rights. None of the proponents of these three different positions ever called into question the basic, individual right of keeping and bearing arms. In fact, little dispute erupted about such personal and unalienable rights—the most prominent criticism was that the amendments failed to include provisions limiting federal powers and enhancing state powers.
At the same time that the proposed federal bill of rights was being considered by the states—about which few records remain—some states were revising their own constitutions and bills of rights. These state proceedings shed further light on the perceived nature of the rights guaranteed both at the federal and state levels.
The view that the rights of freemen are too numerous to enumerate was coupled with the argument that the ultimate protection of American liberty would be provided by the armed populace rather than by paper guards. The pro-amendment view held that both the existence of a bill of rights and an armed populace provided complementary safeguards. The following editorial from the Gazette of the United States in October 1789 assumes that keeping and bearing arms would contribute to a well regulated militia, and vice versa:
The right of the people to keep and bear arms has been recognised by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States; From various parts of the Continent the most pleasing accounts are published of reviews and parades in large and small assemblies of the militia. . . . Such men form the best barrier to the Liberties of America.2
As to the nature of “rights” that should not be “infringed”—terms that appear only in the Second Amendment—a writer in the Independent Gazetteer wrote: “But there are some rights too essential to be delegated—too sacred to be infringed. These each individual reserves to himself; in the free enjoyment of these the whole society engages to protect him . . . . All these essential and sacred rights, it would be difficult if not impossible, to recount, but some, in every social compact, it is proper to enumerate, as specimens of many others. . . .”3
The abuses of British rule were still fresh in the minds of Americans, but if anyone needed a reminder, in 1789 Dr. David Ramsay published his acclaimed History of the American Revolution. The work featured detailed accounts of the Crown’s violations of the colonists’ rights, including Gage’s disarming of the inhabitants of Boston in 1775.4
STRUGGLE FOR THE BILL OF RIGHTS IN VIRGINIA
Since debates were not recorded, little is known about what was said in the state legislatures that considered the proposed amendments. Action by the Virginia General Assembly, however, was described by correspondents of James Madison. A legislative report there also revealed concerns with the proposed bill of rights.
Hardin Burnley, a member of the Virginia House of Delegates, wrote to Madison on November 5, 1789, that most of the delegates who opposed the adoption of the amendments “are not dissatisfied with the amendments as far as they go” but wanted delay to prompt an amendment on direct taxes.5 On November 25, House of Delegates member Henry Lee—the Revolutionary war leader who more recently had served in the Virginia ratifying convention—wrote to Madison:
The assembly . . . are now engaged in consideration of the amendments proposed by Congress, to the constitution. Some time ago Mr. Henry made a motion for postponing this business to the next session. This gentleman has left us & since his departure his motion has been taken up & rejected. It is probable that all the amendments will be adopted here. The two last are disapproved of by Mr. Randolph & others. The enmity to govt. is I believe as strong as ever in this state. Indeed I have no doubt of this fact if the assembly be considered as a just index of the feelings of the people. Never adventure direct taxation for years.6
The “last two” amendments were numbered the eleventh and twelfth and would become the Ninth and Tenth Amendments, which respectively protected undefined “rights . . . retained by the people” and “powers reserved to the states respectively, or to the people.” As noted above, these provisions were opposed by Edmund Randolph, who had refused to sign the Constitution at the end of the 1787 convention in Philadelphia but who supported it at the 1788 Virginia convention. At this point, Randolph was not only a member of the Virginia legislature but two months before had been appointed the first attorney general of the United States by President Washington.7
More insight in this debate was set forth in a letter from Hardin Burnley to Madison dated November 28 as follows:
The fate of the Amendments proposed by Congress to the General Government is still in suspence. In a committee of the whole house the fi[r]st ten were acceeded to with but little opposition for on a question taken, on each separately, there was scarcely a dissenting voice. On the two last a debate of some length took place, which ended in rejection. Mr. E. Randolph who advocated all the others stood in this contest in the front of opposition. His principal objection was pointed against the word retained in the eleventh proposed amendment, and his a[r]gument if I understood it was applied in this manner, that as the rights declared in the first ten of the proposed amendments were not all that a free people would require the exercise of; and that as there was no criterion by which it could be determined whether any other particular right was retained or not, it would be more safe, & more consistent with the spirit of the 1st & 17th amendments proposed by Virginia, that this reservation against constructive power, should operate rather as a provision against extending the powers of Congress by their own authority, than as a protection to rights reducable to no definitive certainty.8
The “1st & 17th amendments proposed by Virginia” could be characterized as differently worded versions of the Ninth and Tenth Amendments that the Virginians thought were superior. As noted, the other proposed amendments seem to have aroused little if any controversy.
The committee of the whole approved the amendments on November 30. Hardin Burnley wrote Madison again on December 5, describing the debate after the amendments had been reported by the committee to the House:
Those which respected the ten first were agreed to with even less opposition than they experienced in the Committee, & that wh. passed on the llth & 12th was rescinded by a majority of about twelve. The amendments with the resolutions on them are now with the Senate, where from the best information which I have been able to collect there is such a division in opinion as not to furnish a ground for probable conjecture as to their decision. Some of that body I am informed propose rejection in toto, others adoption, & others again wish to postpone a decision on them ‘till next Session of assembly. I believe it may be said with certainty that the greater part of those who wish either to postpone or reject, are not dissatisfied with the amendments so far as they have gone, but are apprehensive that the adoption of them at this time will be an obstacle to the chief object of their persuit, the amendment on the subject of direct taxation.9
The Virginia Senate would postpone consideration of the proposed amendments until the next session. A majority report dated December 12, 1789, extensively criticized some amendments as too narrow, but no one questioned the right to bear arms provision.10 While some of the proposals were similar to those proposed by Virginia and other states, others “are not substantially the same, and fall far short of affording the same security to personal rights, or of so effectually guarding against the apprehended mischiefs of the government. . . .”
Most prominent was the First Amendment (which was then the third proposed amendment), which allegedly condensed and weakened four separate articles of the bill of rights Virginia had proposed. The report stated in part:
The 3d amendment, recommended by Congress, does not prohibit the rights of conscience from being violated or infringed; and although it goes to restrain Congress from passing laws establishing any national religion, they might, notwithstanding, levy taxes to any amount, for the support of religion or its preachers; and any particular denomination of christians might be so favoured and supported by the General Government, as to give it a decided advantage over others, and in process of time render it as powerful and dangerous as if it was established as the national religion of the country.
This amendment does not declare and assert the right of the people to speak and publish their sentiments, nor does it secure the liberty of the press. Should these valuable rights be infringed or violated by the arbitrary decisions of Judges, or by any other means than a legislative act directly to that effect, the people would have no avowed principle in the constitution to which they might resort for the security of these rights.11
The above predicted that Congress would use taxation and other delegated powers to exercise powers that were otherwise denied, such as supporting an establishment of religion. The criticism of the speech and press guarantees focused on the opening words of the First Amendment—“Congress shall make no law”—which appeared to allow other branches of the government such as the judiciary to violate those rights.
The Virginia Senate report further complained about the deletion of state proposals for “the right of the people to instruct their representatives, and their right to consult with each other for the common good,” noting that “these rights are denied by Congress, and they have refused to allow any amendment declaratory of them, as we discover by their Journals; and even the humble privilege of petitioning against oppression is not fully asserted or secured. . . .”12
The report also criticized the Sixth Amendment as not sufficiently protecting the right of the accused to be tried by a jury in his own neighborhood. Criminal defendants could be tried in distant parts of a state, “where a person, obnoxious to Congress, might fall an innocent sacrifice to their resentment.”13
Among the structural amendments proposed by the Virginia ratifying convention was the declaration that “those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress,” but made “exceptions to the specified powers” or were “inserted merely for greater caution.”14 By contrast, the Ninth Amendment—under which the enumeration “of certain rights” may not be construed to deny “others retained by the people”—had not been requested by Virginia or any other state. The report’s criticism of that language as ambiguous may still be heard today:
If it is meant to guard against the extension of the powers of Congress by implication, it is greatly defective. . . ; and as it respects personal rights, might be dangerous, because, should the rights of the people be invaded or called in question, they might be required to shew by the constitution what rights they have retained; and such as could not from that instrument be proved to be retained by them, they might be denied to possess. Of this there is ground to be apprehensive, when Congress are already seen denying certain rights of the people, heretofore deemed clear and unquestionable.15
The Virginia Senate report also found vagueness lurking in what became the Tenth Amendment. Virginia had proposed that “each state in the Union shall respectively retain every power” not delegated to the federal government.16 The Tenth Amendment—which declared that “the powers not delegated to the United States” are “reserved to the states respectively, or to the people”—would have meant the same “were it not for the words ‘or to the people.’” Consequently, continued the report:
It is not declared to be the people of the respective States; but the expression applies to the people generally as citizens of the United States, and leaves it doubtful what powers are reserved to the State Legislatures. Unrestrained by the constitution or these amendments, Congress might, as the supreme rulers of the people, assume those powers which properly belong to the respective States, and thus gradually effect an entire consolidation.17
Use of the term “the people” may have been an unclear expression in regard to reserved “powers,” a criticism paralleling that of use of “We the People” in the preamble of the Constitution. Is the reference to the people at large or to the people of the states respectively? But the report found no such ambiguity in the phrase “the right of the people” to assemble, bear arms, and against unreasonable search and seizure. Where “rights” are concerned, “the people” unambiguously refers to individuals.
Other than the Tenth Amendment, Congress had not proposed any of the structural amendments affecting the Federal-State balance that Virginia and other states
had advocated. One such proposal was the state power “to provide for organising, arming, and disciplining its own militia,” if Congress neglected to do so.18 The Virginia Senate report stated about this deficiency:
We consider that of the many and important amendments recommended by the Conventions of Virginia and other States, these propositions contained all that Congress are disposed to grant; that all the rest are by them deemed improper, and that these are offered in full satisfaction of the whole. . . . Considering therefore, that they are far short of what the people of Virginia wish, and have asked, and deeming them by no means sufficient to secure the rights of the people, or to render the government safe and desirable, we think our countrymen ought not to be put off with amendments so inadequate.19
The Virginia Senate voted to reject what became the First, Sixth, Ninth, and Tenth Amendments, “these to be referred to the consideration of the people,” Edward Carrington (a member of the House of Delegates) wrote to Madison on December 20. The House of Delegates insisted on adoption of all of the amendments, a conference committee could not resolve the differences, and “thus the whole amendments have fallen.” Carrington concluded: “My information from the various parts of the Country is that the people are at ease on the subject of amendments, expecting nothing but that those sent on would be adopted and that others will be supplied as further deliberation and experience shall discover the want of them.”20
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