Robert Alexander

March 24, 2018

Original Intent and 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.”


In the wake of every gun-toting madman, and an ever-expanding body count, comes a host of voices raised in heated debate about the Second Amendment to the Constitution, which protects the rights of American citizens to bear arms — as if the Founders can be held responsible for the carnage taking place in the nation’s schools, homes, and public places. After the passage of two hundred and twenty-some years, it’s understandable that the voices of those men — for there were no women at the Convention in Philadelphia — are getting fainter and fainter. What they left behind were a lot of papers, and words on those papers, and their words, once crystal clear, have become muddied. [1]

What did those men mean by the “right to bear arms”? This seems like an innocent enough question — but were they really talking about 30-cartridge-magazine assault rifles?

As a matter of fact, the right to bear arms never came up at the Constitutional Convention, that hot summer of 1787. There was talk about the danger of a standing army, to be sure, and Washington made his famous comment that we needed to get a commitment from the country’s enemies to forbear having standing armies before we could ourselves start down that path. But the right to bear arms, as it is enshrined in the Second Amendment, came out of the discussions in various ratifying conventions.

On September 12, 1787, after the draft Constitution had been returned by the Committee of Style to the Convention, George Mason commented that "He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours." [2]

Elbridge Gerry “concurred in the idea & moved for a Committee to prepare a Bill of Rights,” which Mason seconded. When it came to a vote, however, no state delegations were in favor of the motion, and subsequently both Mason and Gerry withheld their signatures from the final document which was sent out to the states for ratification.

On June 27, 1788, at the Virginia ratifying convention in Richmond, “Mr. Wythe reported, from the committee appointed, such amendments to the proposed Constitution of government for the United States as were by them deemed necessary.” The seventeenth proposal is as follows:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:
. . . .
"That the people have a right to keep and bear arms; that a well- regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power." [3]

These words seem clear: a well-regulated militia is key to the defense of a free state, standing armies should be avoided, and the military should be under the control of civil authority. According to the Documentary History of the Bill of Rights, three other state conventions also called for amendments which included language about the bearing of arms:

New York: "That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State."

North Carolina: "That the people have a right to keep and bear arms; 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."

North Carolina also included a proposed amendment which stated, "That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead."

Significantly, only the proposal of the Minority of the Pennsylvania ratifying convention actually included language about the right to self-defense:

"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."

Moreover, this right to own weapons for self-defense was also balanced out by the right of the community to disarm individuals if there existed “real danger of public injury.” [4]

This language about self-defense, however, was not included in the draft amendment which James Madison presented to Congress on June 8, 1789 — and which, like all Constitutional amendments, had to pass both houses of Congress by a two-thirds majority and then be ratified by the legislatures of three-fourths of the states:

"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." [5]

Why was there no mention here of the right to bear arms in self-defense? The right to arm oneself to defend one’s person or home was long recognized in English common law and had been included in various state constitutions." [6]

But the Founders saw the Federal Government as one with limited powers — specifically delineated in the various articles of the Constitution — which left the regulation of community matters to the states themselves. Just to be sure, they included this limitation as the Tenth Amendment in the Bill of Rights, which states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Furthermore, the Federal government had limited resources. As Gouverneur Morris, a staunch Federalist, stated in the Constitutional Convention in regard to the possible taxation of individuals, “It is idle to suppose that the General Government can stretch its hand directly into the pockets of the people scattered over so vast a Country.” [7] How much more likely would it be to have imagined at the time that the Federal government could possibly reach into all the homes in the country to disarm the population?

In any case, the proposed Constitutional amendment about the right to bear arms was referred to a so-called Grand Committee of the House of Representatives (composed of a member from each state), which on August 17 reported it back to the full body, having switched the position of the first two clauses:

"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." [8]

By making the statement about the militia an introductory clause, the committee drew the connection between the militia and the right to bear arms even tighter than it had been in Madison’s original proposal.

The debate in the House on this proposal was begun by Elbridge Gerry: "This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. . . . Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." [9]

Significantly, the discussion which followed involved only this clause about “religious scruples”—there was absolutely no discussion of the putative meaning of the “right to keep and bear arms,” either in self-defense or in any context other than the right of the individual states to organize a militia.

Finally, Egbert Benson moved that the offending clause — “but no person religiously scrupulous shall be compelled to bear arms”— should be struck out. [10] This motion was defeated and after a little more tinkering the proposed amendment, including the clause about religious exemption, was on August 21 approved by a two-thirds majority and sent with the rest of the draft Bill of Rights to the Senate:

"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 one religiously scrupulous of bearing arms, shall be compelled to render military service in person." [11]

On September 4, the Senate shortened the language to read, simply, “A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.” [12] No record exists of the debate, if any took place, concerning that change. Five days later the Senate decided to replace “the best security” with “necessary to the security” [13] — and after approval of this new version by the House, the Second Amendment was sent in its present form to the state legislatures for ratification:

"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."

Because the right to bear arms was so closely connected with the need for a “well-regulated” militia, it behooves us to look more closely at the history of this phrase in Colonial law, specifically in Virginia, as that was the legal code with which James Madison, who drafted the Second Amendment, was most familiar. Consistently, over a thirty-year period, it was the responsibility for members of the Virginia militia to keep a single-shot, long-barreled weapon at home, together with a limited amount of ammunition.

In 1757, during the French and Indian War — a full three decades before the Constitutional Convention met in Philadelphia — we find these terms in the statute titled, “An Act for the better regulating and disciplining the Militia”:

"Whereas it is necessary, in this time of danger, that the militia of this colony should be well regulated and disciplined, be it therefore enacted . . . that every person so as aforesaid enlisted . . . shall be armed in the manner following, that is to say: Every soldier shall be furnished with a firelock well fixed, a bayonet fitted to the same, a double cartouche-box, and three charges of powder, and constantly appear with the same at the time and place appointed for muster and exercise, and shall also keep at his place of abode one pound of powder and four pounds of ball, and bring the same with him into the field when he shall be required." [14]

It should be remembered this was during a time of war, when pitched battles were being fought in the American homeland between French and British troops and their respective Native American allies. At that “time of danger,” the militia’s right to bear arms meant the obligation to keep a single-shot flintlock at home, together with a pound of powder and four pounds of lead balls.

After the Revolutionary War ended in 1783, the Virginia statutes were redrawn, and the stated purpose of the new act was not only “for regulating and disciplining the militia,” but also for “guarding against invasions and insurrections”:

"Whereas the defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty . . . be it enacted by the General Assembly . . . [that] every [militia] officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutered, as follows: . . . every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good powder, and four pounds of lead, including twenty blind cartridges. . . .
"Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof." [15]

It’s worth noting here that the term “insurrection” at that time was most generally used with the modifier “servile,” referring to the several occasions when slaves got it in their minds to take up arms against their oppressors. It was the task of the slave patrols to ensure that slaves were kept from nighttime rendezvous when they might plan or initiate revolt. As these slave patrols were drawn from the militia, it was essential that members of the militia keep their firearms close at hand.

West of the Blue Ridge mountains, the danger was more often from the warriors of the First Nations defending their homelands. Here it was a matter of life and death that arms be kept at the ready against early dawn raids, and rifled weapons were more useful than muskets against shadowy figures slipping through the fog-filled woods; but east of the Blue Ridge, only muskets — less deadly than rifles — were allowed.

Throughout this entire thirty-year period, the right and responsibility of bearing arms —as part of a regulated militia — meant keeping at home a muzzle-loading, single-shot long-barreled weapon, with bayonet and one pound of powder and four pounds of lead. If such a weapon were to be brought into a church, or a theater, or a school, the damage would be limited—after one shot the perpetrator could be disarmed by angry civilians. On the other hand, “small-arms” in the 21st century are equivalent in killing power to 18th-century artillery, which was generally kept under lock and key in the local armories.

Whatever the Founders intended by the Second Amendment, it’s quite clear that they did not intend that artillery be kept in American households. In 1787, the same year the Constitutional Convention met in Philadelphia, a group of rebels in western Massachusetts attempted to take control of the artillery in the Springfield armory. Had they been successful in this attempt, American history might have taken a different turn. This was something that was in the forefront of the minds of the men who met that summer in Philadelphia—indeed, it was one of the very reasons which convinced Washington to come out of retirement and lend his prestige to the convocation. In Springfield there had been state militia loyal enough to man the artillery and fire a round or two at the rebels, killing several and dispersing the rest. The men of the Convention, and of the various state ratifying conventions, had no intention, the next time, of giving rebels access to the artillery.

What would the Founders say now at the argument that men and women, not part of any “well-regulated militia,” can acquire and store at home — or carry concealed on the street — weapons at least as deadly as the field artillery of their day? It doesn’t take a clairvoyant to answer that question. A rocket-propelled grenade, fired into a classroom at Sandy Hook Elementary School, or at Stoneman Douglas High School, might have killed fewer students than a murderer with one assault rifle. Yet the ATF, a Federal agency, forbids trafficking in RPGs. Likewise one man with a personal arsenal at the Mandalay Bay hotel, in Las Vegas, did far more damage than the artillery lined up in 1787 at the Springfield armory.

Has the Second Amendment come to this? Once upon a time it protected the right of a free people to a well-regulated militia. Now, according to its proponents, it protects the right of a mass murderer to purchase on the open market a killer’s multiple weapons of choice, along with thousands of rounds of ammunition. Can we not conclude that something has gone awry?

Robert Alexander
—author of The Northwest Ordinance: Constitutional Politics and the Theft of Native Land (McFarland Books, 2017).


Notes

[1] For a much fuller discussion of the various issues involved with the Second Amendment and its interpretation, see Jack N. Rakove, “The Second Amendment: The Highest State of Originalism,” 76 Chi.-Kent. L. Rev. 103 (2000); available at: http://scholarship.kentlaw.iit.edu/cklawreview/vol76/iss1/5. And for a well-reasoned discussion of the most recent Supreme Court decision regarding the Second Amendment, see Saul Cornell, “Heller, New Originalism, and Law Office History: ‘Meet the New Boss, Same as the Old Boss,’ ” 56 UCLA L. Rev. 1095 (2008-2009); https://www.uclalawreview.org/heller-new-originalism-and-law-office-history-“meet-the-new-boss-same-as-the-old-boss”/.
[2] Max Farrand, ed. The records of the Federal convention of 1787, 3 vols. (New Haven: Yale Univ. Press, 1911), 2:587-588; http://lcweb2.loc.gov/ammem/amlaw/lwfr.html.
[3] Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2nd edition, vol. 3 (Washington, 1836), 657-659; http://lcweb2.loc.gov/ammem/amlaw/lwed.html.
[4] All these proposals can be found in the Documentary History of the Bill of Rights, http://constitution.org/dhbr.htm.
[5] Annals of Congress, House of Representatives, 1st Congress, 1st Session, 451; http://lcweb2.loc.gov/ammem/amlaw/lwac.html.
[6] See, for example, District of Columbia v. Heller, 554 U.S. 570 (2008), 11 fn 8.
[7] Gouverneur Morris, speech of 8 August 1787, in Max Farrand, ed., The records of the Federal convention of 1787, 2:223.
[8] Annals of Congress, House of Representatives, 1st Congress, 1st Session, 778.
[9] Ibid.
[10] Ibid., 779.
[11] House Journal, 1st Congress, 1st session, 21 August 1789, 85; http://lcweb2.loc.gov/ammem/amlaw/lwhjlink.html.
[12] Senate Journal, 1st Congress, 1st session, 4 September 1789, 71; http://lcweb2.loc.gov/ammem/amlaw/lwsjlink.html.
[13] Ibid., 77.
[14] William Walter Hening, ed., “An Act for the better regulating and disciplining the Militia [April 1757],” The Statutes at Large . . . of Virginia, vol. 7 (Richmond, 1820), 93-94; http://vagenweb.org/hening/.
[15] William Walter Hening, ed., “An act to amend and reduce into one act, the several laws for regulating and disciplining the militia, and guarding against invasions and insurrections [October 1785],” The Statutes at Large . . . of Virginia, vol. 12 (Richmond, 1823), 9-12.

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