DO INDIVIDUALS HAVE THE RIGHT TO KEEP AND BEAR ARMS?
Jul 02, 2008
Usually I don't write posts this long, but in light of the coming Independence Day holiday, and the recent supreme court decision, both the length and the subject matter of this post are an exception.
The second amendment reads as follows:
‘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.’
This language is very confusing to many, and for those that take it out of the context of history, and our founders writings about its purpose, many are led to believe that the right to keep and bear arms only applies to the militia, which in modern terms may be our military or national guard.
Note however, from the start, it does not state that ‘A well regulated militia, being necessary to the security of a free state, the right of the PEOPLE IN THE MILITIA to keep and bear arms, shall not be infringed.’
If we understand the plain language of the 2nd amendment, and especially if we look at it in the historical context in which it was written, we will see that the 2nd amendment is a compromise to forming a militia at all, due to the fears that the anti- federalists and the people at that time had of standing armies under the control of a centralized government.
We would see that well armed citizens are in fact a pre-requisite for the existence of the militia, as opposed to the view that the pre-requisite for citizens to be armed is that they be in the militia.
Federalist #29 and #46 give us context for this understanding. Federlist # 29 states:
‘If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all, inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens.’
This statement clearly distinguishes the militia or the army from the citizen, and implies that the citizens may be armed, and in fact it is absolutely necessary that they be armed to defend their rights if need be. It did not imply that the militia would defend our rights, but that ‘a large body of armed citizens would defend themselves from an army of any magnitude', and this would include the possibility that they may need to defend themselves from even the militia. While the militia may be composed of armed citizens, it was assumed that other armed citizens, not in the militia ,would hold it in check. This could not be so if there was no individual right to keep and bear arms.
In Federalst #29, we see that there is a notion that our national military be composed of armed citizens, called to duty when the need arises. Some feared that perhaps this loose collection of soldiers may not be strong enough to keep us safe, but also feared a large strong standing army. A compromise was introduced, such that a small select group of citizens should form a select militia, to train regularly, and in time of need be supplemented by drawing on the ranks of other armed citizens. As stated:
‘The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent…it will be possible to have an excellent body of well trained militia, ready to take the field whenever the defence of the state shall require it.’
Would this small select militia be a threat to the liberties of the people? What about our national defense? Only if individual citizens had the right to keep and bear arms to supplement the small select militia and also to keep it in check would this work. In fact our founders were certain of the strength and power of armed citizens, drawing recently from the experience of a victorious war against England’s powerful military. Again going back to Federalist #46 it is stated:
‘Besides the advantage of being armed, which the Americans posses over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition……the military establishments in several kingdoms in Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.’
Again, a reason and reaffirmation that it was intended that the second amendment protect the rights of individuals to keep and bear arms.
There is a distinction made between this select militia and citizens, a point made in the recent case DISTRICT OF COLUMBIA ET AL. v. HELLER (2008):
"The Amendment’s prefatory clause ( the well regulated militia part) announces a purpose, but does not limit or expand the scope of the second part , the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms."
"The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved."
I will end my discussion with other quotes made by our founders and others discussing the constitution and the right of the people to keep and bear arms.
"That the said Constitution shall never be construed to authorize Congress to infringe the just liberty of the press or the rights of conscience; or to prevent the people of the United States who are peaceable citizens from keeping their own arms ... "
-- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850)
"Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."
-- Tench Coxe, in Remarks on the First Part of the Amendments to the Federal Constitution
"The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon.... [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order."
-- Thomas M. Cooley, General Principles of Constitutional Law, Third Edition 
"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing."
-- Adolph Hitler, Hitler's Secret Conversations 403 (Norman Cameron and R.H. Stevens trans., 1961)
In the context of our history and our founder’s writings, we see that the clause regarding the militia fails to limit in any way the rights of the people to keep and bear arms. In this context the following statement is certainly equivalent to the one in question, being the 2nd amendment:
‘Because a well regulated militia is necessary for the security of a free state, and because it both draws from the ranks of ,and its power is held in check by, armed citizens, the right of the people to keep and bear arms shall not be infringed.’