The Founders’ View of the Right to Bear Arms: A
Definitive History of the Second Amendment
by David E. Young
(Golden Oak Books, 288 pages, $30)
The best writers communicate their ideas in the fewest words
possible. So it was with the Founding Fathers: They crammed a lot
of history and meaning into the sentence “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.”
In The Founders’ View of the Right to Bear Arms: A
Definitive History of the Second Amendment, David E. Young
unpacks the much-debated right with extensive historical
references. Critics will make a number of charges, and correctly —
Young is an independent, non-credentialed historian; he too often
paraphrases his source material instead of using quotes; his prose
is a bit awkward. But the book is an invaluable work for those who
want to know the truth about guns and the Constitution, especially
in light of the current Supreme Court case regarding Washington,
D.C.’s gun-control laws. The debate rages: Can all individual
Americans have guns, or does the Second Amendment only protect
arms-bearing when it relates to the militia?
The answer is complicated because American history took several
steps in creating the amendment we all know and love. The language
began in state declarations of rights, and when the fight over the
Constitution came, some states proposed federal amendments based on
those rights. From those proposals, early lawmakers pared down the
verbiage into its current form. Drawing heavily his 1995
primary-source collection The Origin of the Second
Amendment, Young details each step and the public debates that
took place in between.
State declarations of rights frequently incorporated a
three-part formulation by George Mason, which Young dubs the Mason
Triad. Here it is in Virginia’s declaration:
That a well-regulated militia, composed of the body of
the people, trained to arms, is the proper, natural, and safe
defence of a free state; that standing armies, in time of peace,
should be avoided, as dangerous to liberty; and that in all cases
the military should be under strict subordination to, and governed
by, the civil power.
Of particular note is the assertion that a “well-regulated militia”
is “composed of the body of the people, trained to arms.” Also pay
attention to the dual purpose: The right guaranteed arms for the
defense of the state, but it also placed the government military
under “strict subordination.”
Subsequent state declarations varied quite a bit in their
precise wording, particularly in the first part of the triad. Some
chose the “right of the people to bear arms” language, and others
chose the “well regulated militia” formulation, but none included
both as the final amendment would. Young argues that the two
phrases were understood to mean exactly the same thing — a well
regulated militia is the people, and almost every time
early lawmakers felt the need to define a well regulated militia,
that’s how they did it.
THE “RIGHT TO BEAR ARMS” clauses contain some interesting
differences in themselves. Pennsylvania said people could bear arms
“for the defence of themselves and the state.” North Carolina (“for
the defence of the state”) and Massachusetts (“for the common
defence”) took a more limited view.
When the Articles of Confederation failed to facilitate a
sustainable government for America, the Framers drafted a
constitution. This divided the country into Federalists, who liked
the Constitution as it was, and Antifederalists like George Mason,
who opposed it — most notably, they decried the document’s lack of
a bill of rights. When the states decided whether to ratify, their
conventions debated and sometimes suggested bill-of-rights
provisions.
In the Federalist-dominated Pennsylvania convention, Robert
Whitehill unsuccessfully proposed a list of amendments. If this
wording had ended up in the final document, there would be no
Second Amendment debate:
That the people have a right to bear arms for the
defence of themselves and their own state, or the United States, or
for the purpose of killing game; and no law shall be passed for
disarming the people or any of them, unless for crimes committed,
or real danger of public injury from individuals.
Samuel Adams similarly failed in Massachusetts; his proposal said
Congress cannot “prevent the people of the United States, who are
peaceable citizens, from keeping their own arms.” New Hampshire did
approve language that “Congress shall never disarm any citizen,
unless such are or have been in actual rebellion.”
Virginia, with input from Mason, proposed language quite similar
to the final Second Amendment, but with the “the people” clause
first and the “well regulated militia” one second, and the militia
defined as “the body of the people trained to arms.” New York
followed suit but defined the militia as those “capable of
bearing arms.” North Carolina refused ratification, but
suggested adding all of Virginia’s recommendatory amendments.
ENOUGH STATES APPROVED the Constitution that it went into effect
with a bill of rights missing, but there was sufficient pressure
that the government soon got to it. Based on Virginia’s suggestion,
James Madison introduced a first phrase of “The right of the people
to keep and bear arms shall not be infringed” and a second phrase
of “a well armed and well regulated militia being the best security
of a free country.”
He left off the remaining parts of the Mason Triad, and and it’s
an important question why. “Federalists openly supported having an
army whenever it was thought expedient by Congress,” Young writes,
so it’s clear Madison cut part two because he did not want it to
apply.
However, Madison’s edit was not interpreted as nullifying the
third part, the goal of an armed citizenry that could keep
government power in check. At the time, Federalist Tench Coxe wrote
a newspaper editorial arguing, as Young paraphrases, “The people
are protected in their right to keep and bear their private arms
because civil rulers may tyrannize and military forces raised for
defense may pervert their power to the injury of their fellow
citizens.” (Original quote available here.)
Madison planned to put what became the entire Bill of Rights
after the third clause of Article 1, Section 9 of the Constitution
— that clause and the one preceding it are the only two
individual-rights protections in the Constitution itself. They
prohibit bills of attainder, ex post facto laws and suspension of
habeas corpus. Were his Second Amendment predecessor meant as a
purely militia matter, not as a protection of individual rights,
he’d have put it in the previous section.
The House of Representatives put together a committee to further
refine the amendments. It flipped the order of the two clauses to
begin with the “well regulated militia” language, and it reinserted
the definition of “militia.” The committee also moved the
protections one clause up, putting them between the two
individual-right references already in the Constitution — making
it absolutely clear how they viewed the provisions. Soon
thereafter, of course, lawmakers decided to list all amendments
outside the core document.
FINALIZING THE AMENDMENT, lawmakers defeated a motion to insert the
words “for the common defence” after “bear arms” and re-deleted the
definition of “militia.” Had either of those phrases made it in,
the amendment’s meaning would have been much clearer, but there’s
an important distinction between the two actions. The words “for
the common defence” would have changed the amendment’s meaning, and
they were not allowed in. By contrast, merely removing a definition
cannot change a law’s meaning unless a new definition is added.
(Some historians who filed a Supreme Court brief for D.C. take
the exact opposite approach — “for the common defence” is somehow
redundant, but the definition was removed to keep the government
from having to maintain the entire population as a “well regulated”
militia.)
The gun debate, not to mention gun technology, has changed
significantly since the Founding era. The Constitution didn’t
spring from concerns about protection against crime, and there’s no
obvious way to decide what modern guns the Framers would have
defined as “Arms.”
But there’s no doubt at all that the Second Amendment secures
the right of the citizens to own guns. A read through The
Founders’ View of the Right to Bear Arms is a great way to
understand that.
