A nation of hunters who kept arms contributed to the militia so necessary to a free state. The forces of a tyrant could never prevail in the United States, Jefferson wrote to A. L. C. Destutt de Tracy in a January 26, 1811, letter. Should such forces conquer one state, there were then sixteen other states spread over a great country, and they would “rise up on every side, ready organised for deliberation by a constitutional legislature, and for action by their governor, constitutionally the commander of the militia of the State, that is to say, of every man in it able to bear arms . . . .” That militia would be organized into regiments and battalions, and would be “always in readiness.”42
In an 1822 letter, Jefferson wrote to Peter Minor that he was sending him a keepsake, “an article of the tackle of a gunman, offering the convenience of carrying the powder & shot together.” “Every American who wishes to protect his farm from the ravages of quadrupeds & his country from those of biped invaders” ought to be a gunman. “I am a great friend to the manly and healthy exercises of the gun.”43
But it was a letter written toward the end of his life that Jefferson best expressed the interrelated principles of the First and Second Amendments, and the higher law that is the foundation of such rights, in language reminiscent of the Declaration of Independence. In a June 5, 1824, missive to English Whig Major John Cartwright, Jefferson wrote that the American Revolution “presented us an album on which we were free to write what we pleased,” excluding royal parchments bur appealing “to those of nature” that were “engraved on our hearts.” Jefferson continued about some of its “important principles: The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, . . . that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.”44
Jefferson continued by denying that “one generation [can] bind another, and all others, in succession forever,” for “the Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons . . . .” But he concluded with an absolute: “Nothing then is unchangeable bur the inherent and unalienable rights of man.”45 As to the above-referenced people’s “right and duty to be at all times armed,” this meant that the duty could be changed by the majority but that the right was inherent and unalienable.
Thomas Jefferson and John Adams both died on July 4, 1826, exactly fifty years after the signing of the Declaration of Independence. The Founders’ generation had faded, but their principles endured.
No firearms were listed in Jefferson’s will or the inventories of his estates.46 Perhaps he had passed on this part of his legacy to the living before his death.
James Madison held on until 1836. He was the sole survivor of the Virginia convention of 1776 and the Philadelphia convention of 1787.47 Writing at some point in the period 1831–1836, Madison penned some reflections on the 1829 Virginia constitutional convention. Madison’s following words best captured the reasons for the Constitution and Bill of Rights, which he himself had drafted: “A Government resting on a minority, is an aristocracy not a Republic, and could not be safe with a numerical [and] physical force against it, without a standing Army, an enslaved press, and a disarmed populace.”48
Conclusion
CHAPTER 16
What Does the Second Amendment Say?
A WELL REGULATED MILITIA, being necessary to the security of a free State,” declares the Second Amendment, “the right of the people to keep and bear Arms, shall not be infringed.” The previous chapters have concerned the historical context facing the Founding generation, which culminated in the adoption of the amendment as part of the Bill of Rights. With those experiences as a backdrop, the focus of this conclusion is: What does the Second Amendment’s text actually say?
THE RIGHT OF THE PEOPLE
The Second Amendment begins with a clause declaring a political principle about the militia, followed by a clause declaring a substantive right. The substantive guarantee is “the right of the people,” which can mean only individual rights, not state powers. The term “the people” is in juxtaposition to the government, federal or state. Only individuals have “rights,” while the United States and the states have “powers.” Historically, all able-bodied males constituted the “militia,” but “the people” is broader than the militia. The phrase “the right of the people” appears in the First Amendment—“Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This is an individual right, even if assembly is regarded as a “collective” activity.1
“The people” who assemble and petition consist of individuals, or even a single individual, doing so freely and not under government auspices or compulsion. This has no parallel with the “collective right” view of the Second Amendment which would limit the “right” to bear arms to such persons who are selected and possibly conscripted by government for militia duty.
After the Second Amendment’s reference to “the right of the people to keep and bear arms,” the Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”
This description of “the people” as having “persons, houses, papers and effects” is instructive. These are the same “persons” whose “papers and effects” include printed matter and arms that they keep in their “houses” and bear or carry outside the home. In light of the Crown’s abuses, the Fourth Amendment was intended to play a key role in protection of First and Second Amendment rights.
The Ninth Amendment uses the same phraseology, only in the plural rather than the singular: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” All four of these Bill of Rights guarantees protect individuals from government action; none of them delegate or reserve powers to governmental bodies.
The term “the right” also appears in reference to a subclass of private individuals constituting less than “the people” at large. The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .” The Seventh Amendment states in part: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. . . .” In every instance where it is used, the term “right” is a guarantee to individuals against governmental action.
The original Constitution contained but a single use of the term “right,” and it referred not to a preexisting right, but to a statutory right of private persons. Congress has power to secure “to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . .”2 By contrast, the term “power” consistently appears in the text in reference to what the United States or the States may or may not do.
Similarly, the original text of the Constitution contained no reference to “the people” standing alone. There is a single reference to the members of the House of Representatives being “chosen every second Year by the People of the several States,” but this is qualified by the additional clause that “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” That meant the voters rather than the people at large.3
The meaning of the Constitution’s terminology may be gleaned in the first comprehensive English dictionary compiled by an American, which was accomplished by none other than the prominent federalist Noah Webster. In his preliminary work A Compendious Dictionary of the English Language (1806), Webster defined “people” as “persons in general.”4 Webster’s An American Dictionary of the English Language (1828) was adopted as the standard by Congress and
the American people and became the accepted norm even in England.5 Webster there defined “the people” as “the commonalty, as distinct from men of rank.”6
The constitutional text also clearly distinguishes between “the people” and “the militia.” The Second Amendment itself refers to “a well regulated militia” as being necessary for a free state’s security, while the right to keep and bear arms is guaranteed to “the people,” not just to the militia. Nor does the text use “the people” and “the State” synonymously, as the Tenth Amendment attests in referring to powers “reserved to the states respectively, or to the people.”
In the constitutional lexicon, only “the people” have “rights,” while governments have “powers.” Webster defined “right” in pertinent part:
Just claim; immunity; privilege. All men have a right to the secure enjoyment of life, personal safety, liberty and property. We deem the right of trial by jury invaluable, particularly in the case of crimes. Rights are natural, civil, political, religious, personal, and public.7
Although the term “States’ rights” came into use in the early republic, the constitutional text eschews that usage. As the above demonstrates, “the people” means individuals, and only individuals have “rights.”
The term “the” used twice in the phrase “the right of the people” is significant. The term “the right” expresses a preexisting right, not a new right invented for the Bill of Rights. To declare that “the right” to do or be free of something shall not be abridged, infringed, or violated presupposes that the right already exists. Further, the term “the right” cannot mean a governmental command, such as that a person is compelled to assemble and to petition or to bear arms.
Similarly, “the people” refers to the populace at large. It does not mean “some of the people appointed by the States,” similar to the Militia Clause of the Constitution, which reserves to the states respectively “the Appointment of the Officers.” Nor does it mean a specifically identified group of people, such as the people “in the Militia, when in actual service,” as in the Fifth Amendment, or “the accused,” as in the Sixth Amendment.
It would be rather curious if “the people” means only such persons as the government selects. To suggest that “the right of the people” means only a command issued by a government to persons appointed by the government demeans the very nature of a bill of rights.
TO KEEP AND BEAR ARMS
The Second Amendment refers to the right to “keep” arms as well as to “bear” arms. Webster defined “keep” in part as:
1. To hold; to retain in one’s power or possession; not to lose or part with; as, to keep a house or a farm . . . .
2. To have in custody for security or preservation. . . .
3. To preserve; to retain.8
Webster’s following further definition seems particularly apropos to the right to keep arms: “To have in the house . . . .”9
As is clear, the right to “keep” arms is a liberty an individual would exercise. This is borne out by Samuel Adams’ proposal in the Massachusetts convention “that the said Constitution be never construed to authorise Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms . . . .”10
In addition to the non-peaceable persons referenced above, another class of individuals was in fact deprived of the right to “keep” arms. St. George Tucker, writing in 1796, noted that under a 1748 law, slaves were “prohibited from keeping or carrying any gun, powder, shot, club, or other weapon offensive or defensive . . . .”11 Having no right to keep arms was the mark of a slave.
Where state-owned arms were stored in a public arsenal, the term “deposit” rather than “keep” was ordinarily used. For instance, a 1789 Georgia act on “Indian Violences” concerned the discharge of troops and “collecting and securing the public arms,” and provided that on a certain date “the troops shall deposit their arms in the public storehouse.”12
The term “bear,” according to Noah Webster, meant “to carry” or “to wear; to bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat.”13 Only a civilian would “bear arms in a coat”—ordinary soldiers carried muskets in their hands, while officers with pairs of pistols carried them in holsters.14
The phrase “to bear arms in a coat” does not mean to carry a weapon, suggests historian Garry Wills, for that reading “does not recognize the term ‘coat of arms,’ a decidedly military form of heraldry presided over by the College of Arms . . . .”15 Yet saying “bear arms in a coat” would be a strange way of meaning “to bear a coat of arms.”16 The College of Arms, the historical agency of the British monarchy that officially approves coats of arms, does not use the Queen’s English in this manner.17
Consistent with the meaning of “bear arms” as carrying weapons on the person, Webster defined “pistol” as “a small fire-arm, or the smallest fire-arm used . . . . Small pistols are carried in the pocket.”18 An arms historian notes: “Among eighteenth-century civilians who traveled or lived in large cities, pistols were common weapons. Usually they were made to fit into pockets, and many of these small arms were also carried by military officers.”19
Slaves were deprived of the right to bear arms. St. George Tucker wrote about restrictions on slaves: “Let no Negroe or mulattoe be capable . . . of keeping, or bearing arms . . . .”20
The term “bear arms” was used to describe an activity that “the people” had a right to do as well as prohibited conduct when engaged in by slaves. Persons in military forces also carried arms, but to “bear arms” meant no more than to carry them and had no exclusive military usage.
It has been argued that “bear arms” is an exclusively military usage, and that “keep” has no independent meaning, for “‘keep and bear’ appears to have been understood as a unitary phrase, like ‘cruel and unusual’ or ‘necessary and proper.’”21 Yet all of these words have different meanings. Punishment could be cruel but not unusual, a law could be deemed to be necessary but highly improper, and an arm could be kept in the home without bearing it.
What “arms” could the people keep and bear? According to Webster, “arms” are “weapons of offense, or armor for defense and protection of the body.”22 Citing Blackstone’s Commentaries, Webster noted: “In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.”23
Even though these definitions of “arms” signify weapons carried by hand, Webster added that “fire arms, are such as may be charged with powder, as cannon, muskets, mortars, & c.”24 However, elsewhere Webster states: “The larger species of guns are called cannon; and the smaller species are called muskets, carbines, fowling pieces, & c. But one species of fire-arms, the pistol, is never called a gun.”25 The Framers certainly had in mind the kinds of arms that General Gage confiscated from Boston’s civilians and that militia acts required: muskets, shotguns, pistols, bayonets, and swords.
When the Constitution was being debated, Webster asserted that the people were sufficiently armed to defeat any standing army that could be raised, implying that they had similar arms.26 However, the words “keep and bear arms” suggest that the right includes such hand-held arms as a person could “bear,” such as muskets, fowling pieces, pistols, and swords, and not cannon and heavy ordnance that a person could not carry or wear.
SHALL NOT BE INFRINGED
The Bill of Rights uses several terms to provide that the rights it guarantees shall not be violated by government. The First Amendment prohibits “abridging” freedom of speech and press and “the right of the people” to assemble, the Second Amendment provides that “the right of the people” to arms “shall not be infringed,” the Fourth Amendment mandates that “the right of the people” to be secure from unreasonable searches “shall not be violated,” and the Ninth Amendment proscribes the Constitution’s enumerated rights from being construed “to deny or disparage” other rights “retained b
y the people.”
The above terms refer to governmental action that violates in some manner individual rights. The Constitution nowhere uses these terms to describe what the federal or state governments may or may not do in relation to each other. As the Tenth Amendment exemplifies, the United States and the states have “powers,” not “rights,” and these powers may be either “delegated” or “reserved.” As will be analyzed below, the Militia Clause in Article I, Section 8 refers to state militia powers as being “reserved.” Nowhere does the Constitution provide that the United States shall not “infringe” on a state power.
For the breath of the term “infringe,” Noah Webster’s definition of that term indicates the following direct and indirect transgressions:
1. To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or private person in fringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2. To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.
3. To destroy or hinder; as, to in fringe efficacy.27
It is noteworthy that the Second Amendment proscribes any infringement, not just “unreasonable” infringement. Some guarantees are more relative than others—for instance, the Fourth Amendment proscribes only “unreasonable” searches and seizures. As has been observed:
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