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Original Intent: The 2ND Amendment

February 6, 2012 7 Comments

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.

– The 2ND Amendment to the U.S. Constitution.

The sentence above has spawned in modern U.S. history some of the most heated and vitriolic debates on government authority. The key point is whether government has authority to require background checks, waiting periods, and registration for a person to own and use firearms. Some cities have even outright banned the sale, use and possession of firearms, even handguns. In some states, there are laws governing open and concealed carry laws. But what did the Founding Fathers really mean when they wrote the Second Amendment? And how should it be applied today given that knowledge of the Founders Original Intent? That will be the topic of discussion for today’s blog article.

First, we will focus on quotes from the Founders that clearly outlines the intent and purpose behind the second amendment. Secondly, we will talk about the modern implications and authority of the different levels of government in respect to this amendment and its original intent.

The second amendment is traditionally broken up into two parts or clauses. The first clause is the militia clause, that states: “A well regulated Militia, being necessary to the security of a free state…” This clause is the lynchpin to most liberal arguments against private gun ownership and use. Liberals argue that the right belongs to the militia to control the use of fire arms. They view the police and military as the only legal owners of firearms. What did the founders think of this? How did they define “militia?” And what was the purpose of the militia?

I ask, sir, what is the militia? It is the whole people except for a few public officials. – George Mason

A militia, when properly formed, are in fact the people themselves…and include all men capable of bearing arms. – Richard Henry Lee

A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country. – James Madison

Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American…[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people. – Tenche Coxe

No free government was ever founded or ever preserved its liberty, without uniting the characters of the citizen and soldier in those destined for the defense of the state…. Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.” – “State Gazette,” Charleston, NV, 1788

We can see directly from these quotes that the militia is the complete body of men trained and capable of bearing arms. This would lead us to believe that the right of bearing arms, while used in the militia, belongs to the individual trained to use those arms. This is an individual right, not a collective right. What was the purpose of the militia?

The most effectual way to guard against a standing army, is to render it unnecessary. The most effectual way to render it unnecessary, is to give the general government full power to call forth the militia, and exert the whole natural strength of the Union, when necessary. Thus you will furnish the people with sure and certain protection, without recurring to this evil; and the certainty of this protection from the whole will be a strong inducement to individual exertion. – James Madison

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. – Elbridge Gerry

I object to the power of Congress over the militia and to keep a standing army … The last resource of a free people is taken away; for Congress are to have the command of the Militia … Congress may give us a select militia which will, in fact, be a standing army–or Congress, afraid of a general militia, may say there shall be no militia at all. When a select militia is formed; the people in general may be disarmed. – John Smilie

The Militia is composed of free Citizens. There is therefore no Danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them. – Samuel Adams

In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part in the use of arms for the purposes of war. Their civil occupations are not relinquished, except while they are actually in the field, and the inconvenience of withdrawing them from their accustomed labours, abridges the time required for military instruction. Militia therefore never amount to perfect soldiers, unless the public exigencies shall have kept them so long together as to absorb the civil, in the military character. – William Rawle, “A View of the Constitution of the United States of America”

The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws. – John Adams

The design of the militia was to protect the local community from threats against itself and to enforce the laws. We can see from these quotes that the citizens that were part of the militia were not “select” soldiers, as we see today in the national guard. The men serving in the militia were everyday people brought together to defend their community. This fighting force was large or controlled by the directly governor or the President of the United States to fight our wars. The use of the militia or today’s national guard in fighting wars oversees is a clear violation of that standard. As we can see by this quote of Richard Henry Lee at the ratification convention in Virginia: “The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.”

The militia is a protection against the dangers of a standing army, which could enforce tyranny through a barrel of a gun. The reason behind this is that the full body of citizens, armed and trained in their use will always out number the standing army produced by then national government. Take, for example, the following quotes

By the last returns to the Department of War the militia force of the several States may be estimated at 800,000 men – infantry, artillery, and cavalry. – James Monroe

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops… – Noah Webster

The second clause of the Second Amendment focuses on the real individual right of the people protected and to not be infringed upon by the government. It states: “… the right of the people to keep and bear Arms, shall not be infringed.” To form a militia people obviously need the ability to buy arms used to protect of themselves and their community. So any laws that limit a person’s ability to possess and bear their weapons in public are in clear violation of this clause. But if the above mentioned quotes are not enough evidence for the average reader let even more quotes from both our Founding Fathers and the courts of the U.S. be entered into the record as evidence of this correct interpretation.

The great object is that every man be armed … Everyone who is able may have a gun. – Patrick Henry

Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature. – Samuel Adams

Arms in the hands of citizens [may] be used at individual discretion… in private self-defense … – John Adams

The second amendment to the federal constitution, as well as the constitutions of many of the states, guaranty to the people the right to bear arms. This is a natural right, not created or granted by the constitutions.” – Henry Campbell Black, “Handbook of American Constitutional Law,” 1895.

This [Second Amendment] may be considered as the true palladium of liberty …. The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. – Saint George Tucker, “Blackstone’s Commentaries” (1803)

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” – William Rawle, “A View of the Constitution,” 1829

The Constitution shall never be construed….to prevent the people of the United States who are peaceable citizens from keeping their own arms – Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts

To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them. – Richard Henry Lee, in Letters from the Federal Farmer to the Republican

Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” – Patrick Henry debate in the state ratifying conventions

The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” – Thomas Jefferson

The rifle is the weapon of democracy. If guns are outlawed, only the government will have guns. Only the police, the secret police, the military. The hired servants of our rulers. Only the government – and a few outlaws. I intend to be among the outlaws.” – Edward Abbey, “The Right to Arms,” 1979

For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.” – Bliss vs. Commonwealth (1822)

“The right of the people to keep and bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. – Nunn vs. State 1846

The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff. – People vs. Zerillo (1922)

The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions. – State vs. Kerner (1921)

The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and ‘is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power. – Cockrum v. State (1859)

Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson’s “Commonplace Book,” 1774-1776, quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege.” – Arkansas Supreme Court, 1878

The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed – Thomas Jefferson

What the subcommittee on the Constitution uncovered was clear — and long-lost proof that the Second Amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for the protection of himself, his family, and his freedom.” – Senator Orrin Hatch, Chairman, Subcommittee on the Constitution, Preface, “The Right to Keep and Bear Arms”

The Constitution shall never be construed to prevent the people of the United States, who are peaceable citizens from keeping their own arms – George Mason

Is any more evidence needed? It is clearly seen in the words of the Founders of our nation, cases before the Supreme Court, and even from Blackstone’s Commentaries on the law that the right to bear arms belongs to the people individually, not collectively. If anyone can provide any quotes from the courts or the Founders that show this to be a collective right instead of individual, please share them.

What implications must now be taken into consideration after learning what the founder’s original intent on the second amendment? First, no peaceable citizen shall be deprived of their right to buy, possess or carry firearms, either openly or concealed. A person’s interpretation of “peaceable citizens” does give government authority for several legal actions. There is no debate that the government has authority to require background checks before an individual purchases a firearm. The purpose of that background check would be to ensure that the person has no outstanding warrants or felony convictions. The citizen who is guilty of such a crime may legally be denied their right to own a firearm until they are proven “peaceable” by regulations authorized by the state.

Secondly, gun registration laws provide a clear and unprecedented danger to peaceable citizens, without any benefit for the general welfare of all other citizens. In the aftermath of Hurricane Katrina the danger of gun registration laws became crystal clear. The police would go into neighborhoods and forcibly confiscate the firearms from law-abiding citizens, using the gun registration records. This is in clear violation of a person’s fourth and fifth amendment rights. They confiscated property without probable cause, and confiscated property without providing the citizen due process. After that the gangs and other criminals would flock into those areas and use their illegal guns to take what they wanted. The law-abiding citizens people were defenseless. This also happened under the Nazis in Germany and the Communists in Russia. The registration lists allowed the government to isolate and confiscate the arms owned by law-abiding citizens, thereby making them easier to control. The other part of this implication is that gun registration laws have had little or no effect on the solving of crimes. Guns used in criminal acts are rarely traced back to the own through gun registration records; so they serves no real purpose other than isolating and identifying the law-abiding citizens who own guns.

During the research for this article, there was an interesting part of the amendment that was found in the original drafts of what would become the second amendment, but excluded in the final text. In the original drafts of the second amendment, debated before the House of Representatives and Senate, included a clause that allowed for conscientious objectors excused from service in the militia. In the historical context this restriction on government make sense. The religious sect known as Quakers, were a well-known group of people in the states during our colonial and found periods. They were strictly pacifist and did not volunteer for any war. This allowed them to stay true to their faith and kept government from violating their right to freedom of religion and conscious. A U.S. hero in World War I, Sergeant Alvin York, was a Quaker and tried to get out of the draft by claiming conscientious objector status. It was obviously denied, but one may argue that the founders intended to allow this excuse from military service.

The original intent of the Founders on this topic of the Constitution is clear for everyone to see. When the federal, states, or local governments pass laws that prevent peaceable citizens from owning firearms are in clear violation of the U.S. Constitution.

Some of you would say that the Founders could not foresee a day when we would have of rapid fire weapons, so the second amendment requires reinterpreted. But we can see in the original intent that the specific type of weapon is not a concern when defending the right of the people to defend themselves. If you can regulate automatic weapons, what is to stop government from then regulating swords, knives and other “arms.” The meaning of the terms is clearly defined in the words of the Founders. This is the case for every questionable term that Constitutional modernists and activists think need should be reinterpreted for our modern progressive era. And that is the key behind the idea of original intent.

It is understandable that government must change with the times, but it cannot change not beyond the clearly limited enumerated powers of the Constitution. The words of the Constitution are clearly defined and understood if you do your due diligence and research the meaning behind the phrases when written. Both strict and liberal constructionists must do this research because both are bound to the origins of these phrases and clauses written 235 years ago. Both theories are necessary and proper for understanding the Constitution and the authority given in the document. But we can only completely understand that authority when we know and understand granted authority by viewing what the Founders meant when they wrote the document.