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Original Intent and the Second Amendment

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 keep and 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 thirty-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 state 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 asserted the necessity of a bill of rights, which would include the following language:


"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]


According to the Documentary History of the Bill of Rights, three other state conventions—New York, North Carolina, and Pennsylvania—also called for amendments which included language about the bearing of arms:[4]


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."


And Maryland's report included similar language:


"That no person conscientiously scrupulous of bearing arms, in any case, shall be compelled personally to serve as a soldier."


Significantly, only the minority report of the Pennsylvania ratifying convention included language about the right to bear arms for other purposes—i.e., self-defense or hunting:


"That the people have a right to bear arms for the defense 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 hunting and self-defense was also balanced out by the right of the community to disarm individuals if there existed "real danger of public injury."


This language about self-defense, however, was not included in the draft Constitutional amendment which James Madison presented to Congress on June 8, 1789—and which, before it could take effect, had to pass both houses of Congress by a two-thirds majority and then be ratified by 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, qualifying phrase, the committee drew the connection between the militia and the right to bear arms even tighter than it had been in Madison's original language.


That same day, August 17, the debate in the House on this proposal was begun by Elbridge Gerry of Massachusetts:


"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]


The discussion which followed, as reported in the Annals of Congress,  involved only this clause about "religious scruples"—there was no other discussion of the putative meaning of the "right to keep and bear arms," either for self-defense, or for hunting, or in any context other than the right of the individual states to organize a militia.

Ultimately, Egbert Benson moved that the offending clause—"but no person religiously scrupulous shall be compelled to bear arms"—should be struck out. This motion was defeated by two votes, 24–22." [10]  


On August 20, Thomas Scott, from Pennsylvania, objected to that very same language: "He observed that if this becomes part of the constitution, such persons can neither be called upon for their services, nor can an equivalent be demanded." Therefore "it was agreed to insert the words 'in person' to the end of the clause," which would require an individual claiming this exemption to provide a substitute. After this, the amendment was adopted.[11]


The next day, the House approved the entire draft of the Bill of Rights by a two-thirds majority and sent it to the Senate. The amendment concerning the bearing of arms then stood as follows:


"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." [12]


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." [13] 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"[14]—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."


What's indisputable is that the heart of the meaning of the Second Amendment lies in the phrase keep and bear arms. Justice Antonin Scalia discussed those words in detail in his opinion in the important case of District of Columbia v. Heller (2008)—and I will assert here that, whether or not he so intended, he misconstrued the meaning of the phrase as it was understood in the late eighteenth century.


Justice Scalia argues first (following Blackstone), that the right to "keep arms" meant simply that citizens had the right to "keep arms in their houses"—a point which I will not dispute. He says, moreover, that the phrase "was simply a common way of referring to possessing arms, for militiamen and everyone else" [italics his]. [15]


It's important, however, to point out that the amendment does not stop there—that is, asserting the right of "the People" to keep arms in their houses (for whatever purpose they see fit). The verb is immediately followed by another, and the compound verb, keep and bear arms, has already been preceded by an introductory phrase expounding how important a militia is to the security of a free state. I would suggest, therefore, that the presence in one sentence of these qualifying words casts into doubt Justice Scalia's assertion that keep arms—in this context—really applies to "everyone else" besides members of the militia.


This becomes increasingly evident, in my opinion, when we examine the meaning of the expression bear arms. Even now, in the twenty-first century, the Merriam-Webster dictionary (online edition) lists a secondary meaning for the phrase, which is: "to serve as a soldier." [16] And what's true now, according to the Oxford English Dictionary, was also true in the eighteenth century. The OED also lists, as the only idiomatic use of bear arms—going as far back as the 14th century—the meaning "to serve as a soldier." [17]


In this light, the meaning of the Second Amendment is precisely to protect the right of citizens to keep guns in their houses for the express purpose of serving in the militia—particularly because, as we've noted, no other reasons are given there for people to keep guns at home, such as hunting and self-defense. Furthermore, no other uses are discussed in the relevant Congressional debate. It seems clear from all this, that what Congress intended in the Bill of Rights was to protect the right of the community ("the People") to organize an armed militia to defend itself against soldiers from an overweening central government (as the British Crown had been) or a group of local insurgents (such as white rebels in Massachusetts in Shays' rebellion or black rebels in South Carolina in the Stono rebellion). Moreover, it becomes clear in this context why the first part of the compound verb is necessary—why individuals would need to keep their guns at home—lest someone else, be it British soldiers or American insurrectionists, would arrive at the local armory before the militia!


Justice Scalia, in District of Columbia v. Heller, does in fact admit that at the time of the Founding the phrase had "an idiomatic meaning that was significantly different from its natural meaning: 'to serve as a soldier, do military service, fight' or 'to wage war.' " [18] But he also argues against that interpretation in the Second Amendment because the meaning of bear arms  "was not limited to the carrying of arms in a militia." [19] Of course that's true, though hardly relevant, since the question we're attempting to answer is not what the phrase might have meant in general conversation, but rather what Congress intended it to mean when they used it in the Second Amendment—where, as I think I've demonstrated, the right to keep guns at home is connected only with the right to serve in the militia.


Finally, Justice Scalia argues that if we assign the idiomatic meaning to the second part of the compound verb, the phrase "keep and bear arms" is incoherent. The word arms, he claims, "would have two different meanings at once: weapons (as the object of keep) and (as the object of bear) one-half of an idiom. It would be rather like saying 'He filled and kicked the bucket' to mean 'He filled the bucket and died.' " The Justice is scathing in his judgment of this interpretation; he calls it "grotesque." [20]


I would assert that Mr. Scalia's argument, in fact, is what's grotesque. First, attempting to separate the "meaning" of "one-half of an idiom" from the meaning of the idiom itself is nonsensical. Moreover, in the second half of Mr. Scalia's example—kick the bucket—the idiom has nothing at all to do with buckets. But, on the contrary, the idiom bear arms has everything in the world to do with arms. Thus, despite what he claims, the Justice, in my opinion, stands guilty of intentional obfuscation.


One can easily imagine a world where the militia has the right to "bear arms" but not to keep them at home—and must instead pick them up at the armory on muster days. (If I'm not mistaken, the National Guard is restricted from keeping certain weapons at home.) The meaning of the phrase in the Second Amendment seems, therefore, perfectly clear to me: citizens have the right to keep weapons in their houses for the purpose of serving in the militia.


Finally, Justice Scalia argues that "giving bear arms its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed." [21] Let me point out that Elbridge Gerry was in fact the first commentator to endorse this so-called absurdity, asserting, as we've already seen, that if the clause on religious scruples was allowed to stand, the national government could indeed "prevent them from bearing arms." Which is to say, the national government could prevent individuals from serving as soldiers in the militia, and in this way could disarm the only countervailing force to Federal power. (One should remember here that Mr. Gerry was so concerned about the power the Constitution gave the national government that he refused to sign the final document.)


*         *         *


Because the right to "keep and 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 the militia 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 in Hening's Statutes of Virginia "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 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." [22]


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 keep and 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":


"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." [23]


It's worth noting here that the term "insurrection" at that time, in the Southern states, 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 for use by the militia 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 convention. 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 who met in Philadelphia, and at the various state ratifying conventions afterward, 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 on the street—weapons at least as deadly as the field artillery of their generation? 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 it protected the right of a free people to a well-regulated self-defense. Now, according to certain of 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?




[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 a 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,' " UCLA L. Rev. 56 (2008­–2009): 1095; 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, Justice Antonin Scalia, "Opinion of the Court," District of Columbia v. Heller, 554 U.S. 570 (2008), 11 fn 8; https://supreme.justia.com/cases/federal/us/554/570/.

[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., 779–780. It's hard to tell from the Annals of Congress whether the vote was on Benson's proposal to remove only those words or on another, unreported, proposal to remove the entire amendment—but in any case it failed and the entire amendment was adopted in its original form.

[11] Ibid, 796.

[12] House Journal, 1st Congress, 1st session, 21 August 1789, 85; http://lcweb2.loc.gov/ammem/amlaw/lwhjlink.html.

[13] Senate Journal, 1st Congress, 1st session, 4 September 1789, 71; http://lcweb2.loc.gov/ammem/amlaw/lwsjlink.html.

[14] Ibid., 77.

[15] Scalia, Heller, 9.

[16] https://www.merriam-webster.com/dictionary/bear.

[17] Oxford English Dictionary, Third Edition (Oxford: Oxford Univ. Press, 2016); most recently modified version published online December 2021; https://www.oed.com/view/Entry/10809?rskey=OkIA3V&result=13.

[18] Scalia, Heller, 12.

[19] Ibid.

[20] Ibid., 13.

[21] Ibid.

[22] 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/.

[23] 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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