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Bear Arms: A Definitive History of the Second Amendment, David E. Young unpacks the much-debated right with extensive historical references.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.
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