The Second Amendment

by Michael Waldman

  Tellingly, debate revolved around the conscientious objector language. Thomas Jackson of Georgia averred that while he “did not expect that all the people of the United States would turn Quakers or Moravians [a small Protestant sect],” in case of invasion it would be unjust if some served and others sat it out. The amendment should have an additional clause requiring a conscientious objector to hire someone in his stead. A South Carolinian noted that in his state and Virginia, men could be excused from the militia if they could find a substitute. Roger Sherman of Connecticut cut this down. “It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent.” In any case, it should be up to each state how it would run its militia. Besides, he said serenely, he was confident that in case of invasion, many Quakers would “defend the cause of their country.”

  Finally a New York congressman urged that the whole conscientious objector clause be struck out. Why not leave the question to “the benevolence of the legislature,” he asked. He presciently warned, “If this stands part of the constitution, it will be a question before the judiciary, on every regulation you make with respect to the organization of the militia, whether it comports with the declaration or not?” The House narrowly voted to retain the “religious scruples” language, by a vote of 24 to 22.

  Gerry was not done. He objected (bless him!) to the vagueness of the amendment, “the uncertainty with which it is expressed.” If a well regulated militia is the “best security of a free state,” then that implied a “standing army was a secondary one.” The amendment should protect “a well regulated militia, trained to arms,” thus imposing a duty on Congress to ensure that the state militias alone would protect order. This time Gerry found no support. The debate ended. But not before another lawmaker proposed yet again that the amendment include an outright ban on a standing army. He “could not help himself,” he explained. Two days later, even after the amendment was passed, two lawmakers tried one last time. If the amendment did not require conscientious objectors to pay for a replacement for militia service, “a militia can never be depended upon. This would lead to the violation of another article in the Constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army.”

  Here it was, on the floor of the House: the purpose of the right of “keeping arms” was to strengthen the militia and thus ward off the specter of an army. Twelve congressmen joined the debate. None mentioned a private right to bear arms for self-defense, hunting, or for any purpose other than joining the militia.

  The Committee of the Whole voted to refer the amendments. Now the full House of Representatives would require a two thirds vote for passage. And after all the agonizing work, Madison still was short of votes. No doubt he found it necessary to play his biggest card: Washington himself. The president had written a letter saying he thought some of the changes were of minor importance, but “are necessary to quiet the fears of some respectable characters and well meaning men.” Adding that he did not foresee “any evil consequences that can result from their adoption, they have my wishes for a favorable reception in both houses.” Not a roaring endorsement, perhaps, but enough. Federalist votes swung behind the plan. On August 29, 1789, the House passed a version of the Bill of Rights that included seventeen amendments.

  The United States Senate then took up the topic. In its first days, the Senate met in secret. We do not know what the senators said in their debates, nor do contemporary records explain the reason for any edits. Tantalizing reports leaked, some jarring. One claimed a majority of the Senate had voted “for not allowing the militia arms & if two thirds had agreed it would have been an amendment to the Constitution. They are afraid that the Citizens will stop their full Career to Tyranny & Oppression.” That seems far-fetched. Perhaps it is a garbled attempt to report that the Senate considered but rejected a ban on a standing army in time of peace. We know it considered but rejected the idea of inserting “for the common defence” in the amendment.

  The Senate reworded and reordered the amendment to its final form:

  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.

  Of note, the senators removed the description of the militia as being “the body of the people.” Future Congresses could determine who would serve, including the possibility of a “select” militia. And they deleted entirely the provision allowing conscientious objectors to avoid service. We do not know why these changes were made. Many other amendments were rewritten, always to trim words, tighten syntax, and combine thoughts. (Two separate amendments, dealing with religion and speech, were combined into one, for example.) It is also true that the Senate, chosen by state legislatures rather than voters, was designed to be a more aristocratic body than the House. Its members were overwhelmingly Federalist, and less inclined to give ground to public clamor. Its debates were secret, shielded from public view. Did the Senate hope to nudge the Constitution away from the idea that the full citizenry armed and ready for service was the way the new nation would organize its military? Again, we do not know.

  The amendments were sent to the states. Legal historian Bernard Schwartz picks up the story. “It is amazing, considering the crucial significance of the Bill of Rights, that we know practically nothing about what went on in the state legislatures during the ratification process. At the time, there was nothing in the states comparable even to the Annals of Congress, which reported, however sketchily, proceedings and debates in the federal legislature. Even the contemporary newspapers are virtually silent on the ratification debates in the states.” There must have been some controversy: a few amendments failed to pass. (The original Second Amendment, which stopped congressmen from voting themselves a pay raise, did not pass until 1990.) Of the few remaining fragments of the debate, none concern the amendment on the “well regulated militia” and “the right of the people to keep and bear arms.”

  • • •

  On March 1, 1792, Secretary of State Thomas Jefferson made his laconic announcement. He informed the states he was sending along “an Act concerning certain fisheries of the United States, and for the regulation and government of the fishermen employed therein; also of an Act to establish the post office and post roads within the United States; also the ratifications by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures.”

  WHAT DID IT MEAN?

  Modern readers accustomed to hyperventilation about the Second Amendment might pause. Wasn’t the debate that led to the Second Amendment a debate about gun ownership? So what did the Framers think the Second Amendment meant? We are faced with a maddening paucity of explanation. Yes, plainly, lawmakers were thinking of the militias, and the urgent need, as they saw it, to protect the system of citizen service against the threat of an overpowering federal military. But was there more? Did they, in fact, want to use the United States Constitution to protect the right to bear arms for citizens for reasons other than service in the militia?

  As we have seen, it can be hard to derive one clear answer to the question of what the Framers meant. The amendment was the product both of political leaders who pushed for a stronger central military authority, and angry citizens who opposed it. It did not give the Anti-Federalists the structural changes they sought, but rather steered public energy into something else. Stanford historian Jack Rakove notes, “Understanding this aspect of the politics behind the Bill of Rights is critical to an originalist inquiry because it indicates that the final decisions about Madison’s proposals fell not to those who were most ardent for the cause of amendments but to those who doubted that such amendments were even useful, much less necessary.”

  Gun rights proponents today point to another set of rights, suffusing the thinking of the Framers
, that would justify an interpretation of the Constitution that the nature of the right protected was private. After all, Americans of that era spoke passionately of their belief in natural rights—rights that could be recognized by government, but not created by government. Gun proponents highlight the English Bill of Rights, enacted a century before. A previously little known historian, Joyce Lee Malcolm, writing in a tone of having discovered a lost hieroglyph that explains everything, declared in an influential book, “The right of individuals to be armed had become, as the [English] Bill of Rights had claimed it was, an ancient and indubitable right. It was this heritage that Englishmen took with them to the American colonies and this heritage which Americans fought to protect in 1775.” Perhaps that is the right the Framers were seeking to protect. It is far less clear that the Founders understood their English heritage this way.

  Some background is in order. One hundred years before the American Revolution, England went through one of its periodic upheavals. The Glorious Revolution of 1688 marked the decisive moment that the absolute monarchy devolved power to Parliament. King James II was a Catholic, a recipe for trouble in overwhelmingly Protestant England. He sought to disarm the kingdom’s Protestants, through their militias and at times in their homes. When his wife gave birth to a son (who could carry on a Catholic throne), Parliament shuddered. It reached out to a Protestant prince from Holland, who was married to one of James’s daughters, and invited him to invade and seize the throne. William and Mary set sail for England. When they arrived, James dithered, panicked, and abdicated. A nearly bloodless revolution had occurred. But Parliament did not offer the crown without conditions. A hurriedly cobbled together Declaration of Rights—designed to confer legality and win support from all parties—purported to codify existing English rights. It complained that the king had disarmed some of the Protestants, while allowing “Papists” to have weapons. Instead, the declaration guaranteed “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” What did this mean? We believe it meant that all Protestants—in other words, nearly all Englishmen—could have arms. But there were those curious qualifiers. “Suitable to their conditions” meant that arms were actually limited to upper-class Englishmen. The government limited gun ownership by limiting hunting. And “as allowed by law” meant that Parliament, not the king, could limit gun ownership. The declaration was not interpreted in England as prohibiting strict gun laws. The same Parliament that approved the Declaration of Rights opposed allowing Englishmen to all have guns in their homes. Such an idea “savours of the politics to arm the mob, which . . . is not very safe for any government,” one member of Parliament warned.

  Perhaps this was a background right, something the Framers intended to include in the Constitution, without ever quite saying so. There are some tantalizing clues: James Madison’s notes for his speech to Congress introducing the Bill of Rights refers to the “English Decl. of Rts.” and mentions “arms to Protestants” as one of its provisions. He may have been favorably contrasting a more universal right to the sectarian English version. But aside from that enigmatic scrawl (the report of his speech makes no mention of it, or of much else in the notes), there is no mention of the provision on arms from the English Declaration of Rights in the records of either the Constitutional Convention, the Congress, or the state legislatures that ratified the Bill of Rights.

  However, we can draw some conclusions about what the Framers thought they were doing.

  Let’s be clear: the eloquent men who wrote “we the people” and the First Amendment did us no favors in the drafting of the Second Amendment. One reason it was ignored for so long is that it is so inscrutable. As later generations pore over the text, peering at stray commas and fuzzy wording, it is worth noting a few things about the text itself.

  Start with those commas. The Founding generation believed in freedom to punctuate. Spelling and capitalization seemed an afterthought. Standardized rules did not take hold until the next century. Still, we must cope with the oddly choppy grammar, so unlike the other amendments to the Constitution. The version passed by Congress (and on display in the National Archives) stutters: “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.” Law professor David Yassky, arguing in a brief in a federal court case, noted that a modern reading of this might be that “A well regulated militia . . . shall not be infringed.”

  Then there is the opening clause: “A well regulated militia, being necessary to the security of a free state.” We know that the debate among the Framers revolved around this point: the survival and role of the militia. We know, too, that originally drafts included “and well armed” and made clear that militia service was universal. What was the significance of moving this clause to the beginning of the amendment? Did it render it merely throat clearing before the declaration of the right? Did it limit the right? Or did it explain the meaning of the right? It is worth noting that in the eighteenth century, “preambles” or “explanatory clauses” at the beginning of legal declarations had force: they were to be read as limiting what came after. John Jay wrote in an opinion in 1791, “A preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.” Linguists point to the Framers’ familiarity with Latin, and call the first clause an “ablative absolute”—it provides “the conditions under which the rest of the sentence is valid.” At a time of intense public argument about constitutional first principles, the preamble aimed to communicate with ordinary Americans in their town meetings and taverns. Some argue that the operative clause is the “right” in the next section. The fact is that the Second Amendment is the only one of the ten in the Bill of Rights that has an explanatory clause of any kind. The First Amendment does not say, “Robust debate being necessary to sound public policy, Congress shall make no law . . .” We must take the preamble seriously.

  Many modern readers are brought up short by “well regulated.” Regulation, as we imagine it now, necessarily implies governmental rules and control. In the 1700s, not so much. “Well regulated” seems to have connoted internal balance, self-control, and good decorum. To Alexander Hamilton, it appeared to mean a “select” militia of only the most ardent men. In the Articles of Confederation, it seemed to mean a militia with enough weaponry. It may be that “well regulated” means “well disciplined.” (The Constitution itself gives Congress the power to regulate commerce, which has a more modern meaning.) Some have asserted that a “free state” is a generic term, referring to republican government generally. But every other time that word is used in the Constitution, it refers not to “government” but states. (New Jersey, Georgia—those kinds of states.)

  Then, the magisterial phrase: “the right of the people.” Set aside the question of what constitutes a right. Who are “the people”? The phrase dots the Bill of Rights. Today those on both sides of the issue take it to recognize an individual right of some kind, whether for personal protection or militia service. When we look at the rest of the Bill of Rights, the meaning blurs a bit. The Fourth Amendment, for example, protects “the right of the people to be secure in their persons”—but goes on to protect their “houses, papers, and effects, against unreasonable searches and seizures.” The First Amendment protects “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Ninth Amendment reserves rights to “the people,” as distinct from the Tenth Amendment, which reserves them to “the states.”

  More frequently, the Framers used “the people” to mean something close to what we would call “the body politic.” “We the People” formed the Constitution. (Not “we the persons.”) An interesting clue to their thinking comes from the transcript of the Virginia ratification convention. In that contentious
session where Madison and Henry and Mason debated the militia, speakers used the phrase “the people” fifty-four times, touching on other issues as well. Every single one referred to the collective mass of Virginians, the voters, or the population generally. There is one exception: Madison seemed to regard “the people” as a synonym for “the militia.” He was asked why Congress would be given the power to call forth the militia. Madison replied that resistance to the laws obviously must be overcome. “This could be done only two ways; either by regular forces, or by the people. By one or the other it must unquestionably be done. If insurrections should arise, or invasions should take place, the people ought unquestionably to be employed to suppress and repel them, rather than a standing army. The best way to do these things, was to put the militia on a good and sure footing, and enable the Government to make use of their services when necessary.”

  Finally, what did “keep and bear arms” mean? Of course, modern Americans debate this phrase. There is no certain answer. Some find this to refer to carrying guns in an individual capacity, for self-defense. The official records of the time offer a strong clue of what the Framers meant. David Yassky notes:

  Searching a Library of Congress database containing all official records of debates in the Continental and U.S. Congresses between 1774 and 1821 reveals thirty uses of the phrase “bear arms” or “bearing arms” (other than in discussing the proposed Second Amendment); in every single one of these uses, the phrase has an unambiguously military meaning. The Continental Congress, for example, approved a prisoner exchange with the British conditioned on the returned prisoners being forbidden to “bear arms” for a specified period, and the Twelfth Congress debated legislation concerning prisoners taken “whilst voluntarily bearing arms in the service of Great Britain.”