The kind of protection that particular rights enshrined in the Bill of Rights receive is not identical. Some are guaranteed in the most absolute imperative terms. The first amendment specifies that Congress shall make no law “respecting an establishment of religion, . . . or abridging the freedom of speech . . . .” The second amendment prescribes that the right of the people to keep and bear shall not be infringed.28
The pre-Revolutionary experiences exemplified how the right to keep arms could be infringed: King George’s ban on import of arms and ammunition, Redcoats breaking into houses at Lexington and Concord to seize firearms, and Gage’s decree ordering all Boston inhabitants to report and surrender their arms. Similarly, the patriots perceived the right to bear arms being infringed when British troops stopped citizens to search their persons and carts and seized any arms found, used entrapment to ferret out persons seeking to obtain arms, and ordered the dispersal of persons engaging in militia exercises. These were rather abrupt and open infringements, but the Founders would also have considered more subtle interferences to be infringements too. Being required to give one’s name to an official and obtain permission to publish one’s sentiments or to own a firearm would have been considered infringements.
A WELL REGULATED MILITIA
The substantive guarantee of the Second Amendment is preceded by a purpose clause—“a well regulated militia, being necessary to the security of a free state . . . .”What do these terms mean?
The phrase “well regulated militia” was frequently used by the Founders. The Virginia Declaration of Rights of 1776 referred to “a well regulated Militia, composed of the Body of the People, trained to Arms . . . .”29
Webster wrote: “The militia of a country are the able bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.”30 “Regulated” means “adjusted by rule, method or forms; put in good order; subjected to rules or restrictions.” Examples are “to regulate our moral conduct by the laws of God and society; to regulate our manners by the customary forms.”31 Thus, a well regulated militia includes all able-bodied men whose training is regulated by customary rules and methods.
Before and during the Revolution, the patriots could distinguish militiamen from troops by the clothes they wore and the nature of their occupations: Militiamen wore civilian clothes or special uniforms and were gainfully employed, while soldiers wore distinctive uniforms—the British wore Redcoats and the Continentals wore blue—and were engaged in military duties as an occupation. A well regulated militia consisted of civilians, not soldiers.
BEING NECESSARY TO THE SECURITY OF A FREE STATE
At the outset, the clause postulates that a well regulated militia is “necessary” to a free state’s security. Webster defined “necessary” in part as “that must be; that cannot be otherwise; indispensably requisite.”32 Constitutionally, then, it cannot be argued that in modern times a well regulated militia is no longer necessary to a free state’s security. The Founders pointed to the Crown’s neglect of the militia in the pre-Revolutionary years as a subtle manner of disarming the populace and thereby undermining republican institutions.
Webster defined “security” as “protection; effectual defense or safety from danger of any kind . . . .”33 Under this broad meaning, having a well regulated militia helps to secure a free state from any threat, whether invaders, tyrants, insurgents, or even individual criminals who may be repulsed by individual militiamen who keep their arms at home. That “security” means safety for individuals as well as groups of people is exemplified in the Fourth Amendment’s reference to “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”—which by definition are carried out by government agents. By the same token, the Second Amendment’s “security of a free State” includes security from governmental oppression.
The reference to a “free State” means a republican polity and is not restricted to a state government. A “free State” is not some elusive “collective” that is more than the sum of its individual parts. Webster defined “free” in part as follows: “In government, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitrary will of a sovereign or lord; as a free state, nation or people.”34 The term “state” meant in pertinent part:
A political body, or body politic; the whole body of people united under one government, whatever may be the form of the government . . . .
More usually the word signifies a political body governed by representatives; a commonwealth; as the States of Greece; the States of America.
In this sense, state has sometimes more immediate reference to the government, sometimes to the people or community. Thus when we say, the state has made provision for the paupers, the word has reference to the government, or legislature; but when we say, the state is taxed to support paupers, the word refers to the whole people or community.35
Thus, “the States of America” refers to the political units known as states. “A free state” more broadly encompasses the entire body politic, including “the whole body of people.”
While not stated in its text, the First Amendment too has “free state” aims. “The liberty of the press is indeed essential to the nature of a free state,” in Blackstone’s words.36 The same could be said for the prohibition on the establishment of a religion—Madison’s Memorial and Remonstrance Against Religious Assessments declared that “as faithful members of a free State,” they protested the bill providing for teachers of the Christian religion, which would be “a dangerous abuse of power.”37
Had a “free state” clause appeared in the First Amendment, it would not mean that the freedoms declared therein are no more than powers of the state governments. Consider the clause, “A well educated citizenry, being necessary to the culture of a free state, the right of the people to keep and read books, shall not be infringed.” It could not be argued that a government-selected intelligentsia is today’s well-educated citizenry and thus that this group is the only entity with the right to keep and read books, and then only when on duty. To the contrary, the right would extend to people who were not “well educated,” since they are among “the people.” Nor is it tenable to argue that only a government-selected militia have a right to keep and bear arms, and then only when on duty.
Variations of the theme that a well regulated militia is needed to secure a free state were common in the eighteenth century. The Earl of Middlesex wrote in a 1752 tract: “almost every free state affords an instance of a national Militia: For Freedom cannot be maintained without Power; and Men who are not in a Capacity to defend their Liberties, will certainly lose them . . . .”38 The Founders concurred with such sentiments.
THE PURPOSE CLAUSE DOES NOT NEGATE THE RIGHT
Nothing in the structure of the Second Amendment—a purpose clause followed by a substantive right—suggests that the former limits or may extinguish the latter. The declared “right of the people” is open-ended and would include all legitimate purposes, from defense of life to lawful hunting. To be sure, the militia clause declared a significant federal purpose and eschewed politically trivial purposes—the amendment does not begin with a purpose such as “duck hunting being lots of fun.” But to the Founders, all lawful activities involving the keeping and bearing of arms—from hunting to militia muster—promoted a well regulated militia. Target shooting for sport made one better able to defend a free state. The militiamen of Lexington and Concord had turned their goose guns on the Redcoats.
It might be suggested that the right to have arms is dependent on a militia being necessary for the security of a free state, but despite what the amendment declares, the militia is obsolete, and today the standing army allegedly protects a free state—ergo, no right to arm
s exists. Rephrasing the amendment as a conditional (hypothetical) syllogism, its first premise would state: If a well regulated militia is necessary to the security of a free state (p), then the right of the people to keep and bear arms shall not be infringed (q); that is, p implies q. If one then asserts p as a second premise, then the conclusion q would follow. Logicians speak of this syllogism as being valid by reason of modus ponens.39
Yet the denial of the antecedent, should it be expressed in the second premise, fails to imply the denial of the consequent in the conclusion; that is, even if a militia is not necessary for the existence of a free state, the people still have the right to keep and bear arms. To say that “not p” implies “not q” is to commit the logical fallacy of denying the antecedent.40
These rules concerning syllogisms derive from classic Aristotelian logic and have not changed since ancient Greece. The Founders were familiar with logic.
While the Second Amendment is the only individual right with a purpose clause, the Patent and Copyright Clause is the only delegation of power to Congress with a purpose clause. It provides: “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .”41 This reads as a delegation of power to Congress to exercise within its discretion, and the prefatory clause about promoting science and the arts does not appear to be a limitation on this power.42
The preamble to the Constitution also includes a declaration of purpose:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Again, the declared purpose does not limit the active part of the preamble—that the Constitution is ordained and established. Nor could one argue that the Constitution no longer, say, promotes the general welfare, and thus is no longer ordained and established. It goes without saying that the preamble is a general statement of purpose that has no effect on the powers and rights set forth in the constitutional text.
When all is said and done, the militia clause of the Second Amendment is a philosophical admonition that neither delegates, reserves, nor prohibits any specific power to the United States or to the states. As discussed below, the federal-state division of power over the militia is precisely delineated in Article I, Section 8 of the Constitution. But the clause serves as a reminder that a well regulated militia, not a standing army, is required to secure a free state.
THE MILITIA, WHEN IN ACTUAL SERVICE
The Founders distinguished not only between the people and the militia, but also between both of those entities and “the militia, when in actual service.” The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . .”
If keeping and bearing arms was a “right” only of “the militia, when in actual service,” the Framers certainly would have so stated. It would have been odd, when guaranteeing “the right of the people to keep and bear arms,” had the Framers really meant “the right of the militia to keep and bear arms when authorized and activated by the state government.”
POWERS RESERVED TO THE STATES
The Framers distinguished between “the people” and “the states.” As provided by the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” For the powers delegated to the United States, one looks to Article I, under which “the Congress shall have power” to do what is enumerated; Article II, which defines “the executive power"; and Article III, which provides that “the judicial power” extends to certain objectives.43 As the Tenth Amendment makes explicit, all other “powers” are reserved either to the states or to the people. No “rights” are delegated to the United States or reserved to the states. Only “the people”—individuals—have “rights.”
But as the Tenth Amendment confirms, “the people” also have “powers.” These powers include suffrage, jury duty, militia service, and other institutions in which the people govern, administer justice, keep order, disapprove of and nullify governmental actions, and otherwise participate in political society. As the Revolution proved, the ultimate power of the people that the Second Amendment helps secure is the ability to take arms to resist oppression and overthrow tyranny. In a constitutional republic, actual exercise of this power of the people would be rendered unnecessary.
Consistent with the above usage, Noah Webster defined “power” as follows :
Command; the right of governing, or actual government; dominion; rule; sway; authority. . . . The powers of government are legislative, executive, judicial, and ministerial. . . .
Under this sense may be comprehended civil, political, ecclesiastical, and military power.44
Finally, the Tenth Amendment clarifies that governmental powers are either “delegated” or “reserved,” in contrast with rights of the people, which may not be “infringed” or “violated.” The people also have powers that are “reserved.”
MILITIA POWERS DELEGATED TO THE UNITED STATES AND RESERVED TO THE STATES
It is striking that the state power to maintain militias vis-à-vis the federal military power was already treated in the text of the Constitution before the Bill of Rights was proposed, and the language of this state power does not contain the individual-rights vocabulary of the Second Amendment. Article I, Section 8, clauses 15 and 16 provide that “Congress shall have power”:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organising, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . .
Thus, “power” and “authority” (not “right”) over the militia are “reserved” (not “shall not be infringed”) to “the States respectively” (not “the people”). The division of authority between the United States and the states is clear. Congress has power to provide for calling up the militia to enforce the law, suppress insurrections, and repel invasions, but residual authority over the militia remains in the states when not federalized. As further provided in Article II, Section 2, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . .” When not federalized, the state governors are the commanders in chief of the respective militias of the states.
Moreover, the Congress has power to provide for organizing, arming, and disciplining the militia, and governing the federalized militia. But the powers to appoint militia officers and to train the militia—albeit under standards set by Congress—are reserved to the states. All other powers over the militia are reserved to the states.
The language of the residual state power to maintain militias is not the individual-rights vocabulary of the Second Amendment. Under the former, the “Congress shall have power . . . to provide for . . . arming . . . the Militia,” “reserving to the States” the powers of appointing officers and training the militia. This sharply contrasts with the latter’s reference that “the right of the people to keep and bear arms shall not be infringed.”
It goes without saying that Article I, Section 8 of the Constitution had already provided for the existence and armament of the organized militia, and it would have been redundant for the Second
Amendment to have done the same. Indeed, the Amendment’s Militia Clause has none of the specificity of the militia clauses in Article I and adds nothing particular to them.
Moreover, the militia is the only military force the states may normally maintain. Congress has the exclusive power “to raise and support armies” and “to provide and maintain a navy.”45 But “no state shall, without the consent of Congress, . . . keep troops, or ships of war in time of peace, . . . or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”46 Since the states may maintain “militia” but not “troops,” those terms must have some objective meaning. That meaning can only be the historical understanding of the Founders that militia are part-time armed civilians, while troops signify full-time standing forces.
Moreover, the contrasting use of the word keep is revealing: “no state” shall (without Congress’ consent) “keep troops,” but “the people” have a right to “keep . . . arms.” The Second Amendment does not say that “the power of the states to keep militia is reserved.”
READABLE BY ANY CITIZEN
This exhaustive textual analysis of the Second Amendment would never have been necessary in the nearly first two hundred years of the republic. It was only beginning in the second half of the twentieth century that the Orwellian view gained currency that “the people” means the states or state-conscripted militia, that “right” means governmental power, that “keep” does not mean to possess, that “bear” does not mean carry, that “arms” do not include ordinary handguns and rifles, and that “infringe” does not include prohibition.
But the Founders intended to, and did, word the Second Amendment in an easy to understand manner. Individuals have a right to have arms in their houses and to carry them, and the government may not violate that right. Recognition of the right promotes a militia composed of the body of the people, which is necessary for a free society.
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