Sunday, December 06, 2009

A Short Examination and History of The Second Amendment

"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.”
-U.S. CONST. amend. II.
The Second Amendment of the United States Constitution is made up of 27 small and simple words, so it would be easy to assume that its meaning and interpretation would also be simple. That would be a mistake. The Second Amendment, its meaning and origin, has evolved over time and taken on, rightly or wrongly, new and different interpretations to different people, but where did this amendment come from, why did the Framers include it in the document that would help define the identity of the new American Nation, and what does it mean today?
One long standing impediment to a better understanding of the Second Amendment is the general tendency for legal scholars and historians to gloss over or, in some cases, to completely avoid a direct analysis of the Second Amendment, treating it as the “equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members” (Levinson, 1989). There are, perhaps, several reasons for this avoidance, ranging from the deliberate dodging of the politically charged issue of gun control legislation to the conspicuously absent attention historically paid to this amendment by the United States Supreme Court.
Overall scrutiny of this amendment, however, can be delineated into two, seemingly, mutually exclusive interpretations; the first is that “the Second Amendment guarantees an individual’s right to own a firearm, and…[the second] that it merely guarantees the right of the states to maintain militias, and thus does not guarantee an individual right” (Oder, 1998). These interpretations rely on the separation of the clauses of the text since “[w]hat is special about the [Second] Amendment is the inclusion of an opening clause…that seems to set out its purpose” (Levinson, 1989). This amendment “is one of only two provisions of the Constitution that contains its own preamble, and this raises a question of the extent to which this statement of purpose should guide the interpretation” (Rakove, 2002).
This makes it difficult to clearly interpret the meaning of this amendment because “legal analysts who wish to limit the Second Amendment's force…focus on its "preamble" as setting out a restrictive purpose” (Levinson, 1989), namely that the right to own a gun is dependent on membership in a state militia, and this guarantees only a collective right. Because the foremost, and only (until recently), direct Supreme Court opinion relating to the Second Amendment, United States v. Miller, (307 U.S. 174, 1939) “strongly suggested that no right to possess a firearm exists outside of a well-regulated Militia” (District of Columbia v. Heller, 2008), this interpretation of the amendment has gained a strong hold over general public opinion and has been used as the basis for popular and restrictive firearm legislation (Levinson, 1989).
Furthermore, proponents of the collective right position assert that this amendment also “protected against domestic insurrection” (Cress, 1984) in that it can be read to prohibit the ownership of firearms by people not belonging to those who are duly authorized by the state to put down such uprisings (Cress, 1984); In other words, “[i]t did not guarantee the right of individuals, like Daniel Shays and his followers, to closet armaments” (Cress, 1984), but ensured against such insurgents from possessing them. In addition, supporters of this view interpret the term “the people” in the operative clause as a collective term (Cress, 1984); to support this they turn to state constitutions, many of which “use the words "man" or "person" in regard to "individual rights…[but use] the term "the people"…to refer to the "sovereign citizenry" collectively organized” (Levinson, 1989).
This view suggests that the Framers intended the role of “well regulated militia” to be the duty of every citizen. Consider the martial connotation of the term “bear”, as in “to bear arms” in the operative clause; Since the Second Amendment, taken in this context, seems to merge the concept of the militia with both the right to keep and bear arms, it has been suggested (Cress, 1984) that “citizenship…was defined in part by militia service…not an insistence on individual prerogative” (Cress, 1984).
Opponents of this interpretation, however, hearken back to the Florentine tradition “articulated most clearly by Niccolo Machiavelli, [who] idealized the citizen-warrior as the staunchest bulwark of a republic” (Shalhope, 1982), suggesting that the Framers intent was to preserve the individual right to keep and bear arms in order to secure the framework for a lasting republic. Arguments from this side point to a clear division of the clauses as ensuring two separate and distinct rights, drawing as evidence on the clearer “usage of the term “the people” in the First, Fourth, Ninth, and Tenth Amendments” to refer to the protection of the individual right to keep arms (Levinson, 1989).
Furthermore, they, too, turn to the constitutions of the states, such as those of Pennsylvania, Virginia, Maryland, New Hampshire, and New York, to show that each of these clearly established, as an individual right, the right to keep and bear arms, separate from the right of the state to have and control their own militias (Shalhope, 1982). For those in this camp, the Second Amendment secures the individual’s right to keep and bear arms as a bulwark against the possible tyranny of federal authority “since it offers a strong moral check against the usurpation and arbitrary powers of rulers” (Story, 1833, cited in Shalhope, 1982).
Both of these viewpoints rely on differing interpretations of events and ideologies of the eighteenth century, and both draw differing conclusions from similar philosophical and historical influence on the Framers. The conflict between these views remained unresolved, chiefly because, for many on each side of the argument, the political ramifications of this amendment reach far into the courts and the lives of Americans today and, for some, it is difficult to divorce their research from their own personal agendas and opinions (Shalhope, 1982). History, however, remains intact regardless of how it is interpreted, therefore in order to begin to completely understand the full meaning of this amendment, it is first important to understand the historical context in which it was drafted.
The Framers did not create the Constitution or the Bill of Rights “within a vacuum” (Shalhope, 1982); they were deeply influenced by the political theories of Hobbes, Locke, Rousseau, and other Enlightenment thinkers (O’Conner & Sabato, 2008); they drew on these, and various other social and political philosophies to devise a frame of thought that has come to be described as “republicanism” (Shalhope, 1982). In this way of thought “a republic’s very existence depended upon the character and spirit of its citizens” (Shalhope, 1982), and “survived only through the constant protection of the realm of Liberty from the ceaselessly aggressive forces of Power” (Shalhope, 1982).
That the Framers were aware of the necessity to safeguard against the possibility of tyranny from within the government is easily evident in the complex system of checks and balances that they established for the new nation (O’Conner & Sabato, 2008), thus insuring against the possibility of one section of the government growing more powerful than any other. It was important for these early Americans that the authority of the government reside with the citizens. This makes it “essential…to understand the place of the armed citizen in libertarian thought and the manner in which this theme became an integral part of American republicanism” (Shalhope, 1982) .
When James Madison drafted the amendments to the Constitution, he did so out of a dire necessity to achieve a compromise among the states, in order to assure consensus on ratification (Higginbothom, 1998). The origin of the Second Amendment can be traced to the tempestuous and passionate debates surrounding the achievement of this accord among the states, and from the events that shaped the lives of those who offered suggestions and opinions on how these amendments would be shaped.
For example, much examination has gone into the events surrounding the creation of the U.S. Constitution and those directly preceding it in order to understand what kind of nation that the Framers were trying to create. Most of this study has centered on events related to the American Revolution and have completely ignored the legacy of the Colonial Wars, such as the French and Indian War. The reason that these prior conflicts should be considered is because of the extensive use of colonial militias by the British in their struggle against French, and the impact this may have had on the Framers views of “a well regulated militia”.
“Throughout the seventy years of conflict”, writes military historian Howard H. Peckham, “England never solved the primary problem of America’s indifference to military service” (1964). Again and again, throughout the Colonial Wars, and even during the American Revolution, colonial militias failed to achieve success as well as regulars (Peckham, 1964); more significantly, however, was that, even when their homes and territory were directly threatened by French encroachment, Americans remained wholly ambivalent toward military service of any kind (Peckham, 1964).
The mutually exclusive dichotomy of the idealized militia, held by so many states’ leaders during the ratification debates, and the dismal reality of the militia, displayed in actual historical events, shows that the Framers had many great and noble ideals, but that “the revolutionary generation redefined its experiences and made them as virtuous and as heroic as they ought to have been” (Shalhope & Cress, 1984). ‘This impulse”, writes Shalhope (1984), “helps to explain the exaggerated significance accorded the militia by Americans in the 1780’s”, and better illustrates the “environment filled with hyperbolic praise of the militia” (Shalhope, 1984), during the drafting of the Bill of Rights, and Congressional subsequent debates.
Much emphasis is placed on the fact that “colonial and Revolutionary Americans were virtually of one mind in espousing a well-regulated militia under local authority“ (Higgenbotham, 1998) for defense, and aggressively shunned the establishment of a standing, peacetime military force under federal control. The fear that such a force could be used as an instrument of oppression is reflected in the text of several states’ bill of rights and constitutions, which affirm, in one form or another, that standing armies are “dangerous to liberty” in times of peace and “should not be kept.” Furthermore, within these separate state documents, the right of individuals to keep and bear arms is solidly espoused, as separate and distinct from articles relating to militias (Shalhope, 1982).
Security of the nation, then, should be the domain of militias and, as many anti-federalists argued, these militias should be controlled by the individual states. The trouble with this was that Federalists were concerned that “they [the states] would not provide the resources required to maintain readiness” (Rakove, 2002). To address this, Article I, section 8 of the U.S. Constitution was drafted to help to ensure that “its [the militias] establishment, exercise, and weapons would be uniform in all the states” (Higgenbotham, 1998), however there is “no authorization for the central government under any circumstance to assemble for training or any other reason even some small part of the state militias” (Higgenbotham, 1998). The individual right to keep arms, it seems, was regarded as a distinct liberty, completely detached from any connection to service in a militia, or service to the government, whatsoever, as no mention of it is made.
The suggestion that James Madison drafted the Second Amendment to ensure a collective right to bear arms solely to those belonging to the militia, then, would seem, at best a form of well intentioned naïveté or, at worst, the intentional subversion of an individual right for the benefit of political and legislative gain. Moreover, it becomes clearer that the researcher need not be wholly versed in Colonial or legal history, or even Revolutionary ideology to better understand the original meaning of the Second Amendment, but must be at least somewhat familiar with what James Madison himself intended.
“Madison and his colleagues on the select committee…were anxious to capture the essence of the rights demanded by so many Americans in so many different forms” (Shalhope, 1982); to this end they were forced to consolidate and reword many of these suggested changes (Shalhope, 1982). The original wording of this amendment, according to “Madison’s original suggestion reads: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person” (Dumbauld, E. 1979, cited in Shalhope, 1982). This wording makes it very clear that the meaning of the Second Amendment was “to protect two separate rights: the individual’s right to possess arms and the right of the states to form their own militia” and not “to subordinate one right to the other nor to have one clause serve as subordinate to the other” (Shalhope, 1989).
The text, as it was put forth to Congress, was altered slightly, to read: “ A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms”. Shalhope illustrates (p. 610) that the debate that followed the presenting of what was then the third clause of the second proposition in Congress centered mostly on the phrase “scrupulous of bearing arms”. According to The Debates and Proceedings in the Congress of the United States, (1 Cong., 1 sess., Aug. 17, 1789, p. 778) the representative from Massachusetts, Elbridge Gerry, worried that “this clause would give an opportunity to the people in power to destroy the constitution itself ” by giving them the power to “declare who are those religiously scrupulous and prevent them from bearing arms”, (cited in Shalhope, 1982). A lively debate is recorded that shows that other representatives were more concerned with matters such as to whom exactly the phrase “scrupulous of bearing arms” referred, that no one sect should be singled out, and that, perhaps, it should be made clear that “paying an equivalent” instead of serving themselves would later “be established by law”. The entire amendment was considered by Rep. Gerry “a declaration of rights…intended to secure the people against the mal-administration of the government” which “if…in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed” ( 1 Cong., 1 sess., Aug. 17, 1789, p. 778). Not a word is recorded in that debate that either denies or supports the individual right to keep and bear arms, but it could be inferred from this silence that such a right existed as a safeguard against the future possibility of the government becoming a threat to the liberty of the citizens, and did not even require questioning.
In late 2008 the United States Supreme Court agreed to hear the landmark case of District of Columbia v. Heller, which opened the gate on tidal wave of historical, textual, and legal analysis of the Second Amendment provided as amici curiae briefs in support of each side. While the question at hand involved the constitutionality of specific city codes, the greater debate centered, once again, on the individual versus collective right to bear arms, with much textual, historical, and legal evidence in support of each side. Of these, one of the most sweeping is the brief for the State of Texas, et. al. in which the attorney generals of 31 states stood together to protect the right of the citizens of their states to keep and bear arms. “An individual right” this brief asserts, “that can be altogether abrogated is no right at all.”
On June 26th 2008, the Court offered a 4-5 split opinion, with Justice Antonin Scalia, writing for the majority: "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem” he wrote, addressing the issue of the amendments militia clause. “That is” he continued ”perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct." (District of Columbia v. Heller, 2008). Most importantly the Court affirmed the “individual right to possess and carry weapons in case of confrontation” (District of Columbia v. Heller 2008). “This meaning” wrote Justice Scalia, “is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment…codified a pre-existing right,” (District of Columbia v. Heller 2008).
The debate over, and search for clarity about, the Second Amendment will, no doubt, continue in the lower courts; questions concerning the proper restrictions and limitations on the individual right to bear arms will, no doubt, linger into the coming decades. In short, the examination of the Second Amendment is far from over. Nevertheless, the Heller decision has helped to at least establish a strong basis from which to begin that work, and it is “most notable for…its complete and unanimous rejection of the “collective rights” interpretation” (Reynolds & Denning, 2008). Perhaps now genuine progress can be made towards building strong legislation which protects, not only people’s rights, but their lives.

Cress, L.D. (June, 1984). An Armed Community: The Origins and Meaning of the Right to Bear Arms. The Journal of American History, 71(1), p. 22-42. Retrieved from JSTOR Database April 12, 2009. Document ID: 1899832.

District of Columbia et. al.. v. Heller. 554 U.S. ___ (2008). Retrieved April 3, 2009 from

Higgenbotham, D. (January, 1998). The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship. The William and Mary Quarterly, Third Series, 55(1), p. 39-58. Retrieved from JSTOR Database April 11, 2009. Document ID: 2674322.

Levinson, S. (December,1989). The Embarrassing Second Amendment. The Yale Law Journal, 99(3), p.637-659. Retrieved from JSTOR April 13, 2009. Document ID: 796759.

O’Connor, K. & Sabato, L. J. (2008) American government: continuity and change (9th ed.). NewYork: Pearson Education.

Oder, B.N. (1998). Teaching the Meaning of the Second Amendment: A brief note on recent research. Magazine of History, 13(1), p.64. Retrieved from ProQuest April 20, 2009.

Peckham, H.H, (1964). The Colonial Wars: 1689 – 1762. Chicago: The University of Chicago Press

Rakove, J.N. (January, 2002). Words, Deeds, and Guns: "Arming America" and the Second Amendment. The William and Mary Quarterly, Third Series, 59(1), p.205-210. Retrieved From JSTOR Database April 11, 2009. Document ID: 3491652.

Reynolds, G.H. & Brannon, D.P. (2008). Heller’s Future in the Lower Courts. Northwestern University Law Review, 102(4), p. 2035. Retrieved from ProQuest April 22, 2009.

Shalhope, R.E. (December, 1982) The Ideological Origins of the Second Amendment. The Journal of American History. 69(3), p.599-614. Retrieved April 12, 2009 from JSTOR Database.

Shalhope, R.E. & Cress, L.D. (December, 1984) The Second Amendment and the Right to Bear Arms: An Exchange. The Journal of American History,. 71(3), p. 587-593. Retrieved from JSTOR Database April 12, 2009. Document ID: 188743.

The Debates and Proceedings in the Congress of the United States, (1 Cong., 1 sess., Aug. 17, 1789, p. 778) , retrieved April 25 from