Second Amendment
Here are some facts:
The Bill of Rights was modeled largely on the Virginal Declaration of Rights (drafted May, 1776, by George Mason) that predated the Declaration of Independence by about a month. The Declaration of Independence was heavily influenced by the Virginia Declaration as well.
Article XIII of the Virginia Declaration:
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, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
The Pennsylvania Constitution of 1776, ratified in September of that year, borrowed Article XIII very closely but with some interesting variations:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
The Bill of Rights was modeled largely on the Virginal Declaration of Rights (drafted May, 1776, by George Mason) that predated the Declaration of Independence by about a month. The Declaration of Independence was heavily influenced by the Virginia Declaration as well.
Article XIII of the Virginia Declaration:
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, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
The Pennsylvania Constitution of 1776, ratified in September of that year, borrowed Article XIII very closely but with some interesting variations:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
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| James Madison |
After the US Constitutional Convention and before ratification, James Madison sought to address some of the criticisms of the Constitution by proposing a number of amendments, rather than risk having the new document thrown out completely. The criticisms largely dealt with the perception that certain important rights needed to be specifically protected. Here is what Madison said about the right to bear arms in his initial proposal:
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.
The suggested text went back and forth between the House and the Senate (changing incrementally every time), and eventually the text was ground down to the following:
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.
It is the only item in the Bill that contains a “justification” clause as well as an “operative” clause. The “justification” clause (the first 13 words of the amendment) has been the target of much speculation and difference of opinion about how to construe the text, and the fact that the Second is the only amendment with such a clause seems to call attention to it.
The following is an opinion, but the very well informed opinion of Eugene Volokh of the UCLA Law School: the Second Amendment belongs to a large family of similarly structured constitutional provisions: They command a certain thing while at the same time explaining their reasons. Without coming down on either side of the argument about how to construe the amendment, Professor Volokh points out that the clausal construction of the text was actually fairly common in contemporaneous state documents, and goes on to cite numerous examples.
Here is my analysis.
The Militia Justification
In Mason’s time, the Militia was not only the “proper, natural, and safe” defense of the state: it was the only defense. All able-bodied free white males of a certain age range were expected to serve and provide their own kit in the process. Note the way the Virginia article is constructed: a description of the militia, an assertion of exactly what the purpose of the militia is, a warning against standing armies, and finally language affirming the superiority of the civil authority over the military. What is missing? Any mention at all of a right to bear arms is missing. It seems as if the author has simply assumed the right does not require mentioning. (It is thought this might come from Mason’s long acquaintance with Blackwell and English Common Law.)
Now note the construction of the Pennsylvania amendment: first, an explicit statement of the literal right, mentioning self defense and service to the state, and then an almost word-for-word repetition of the standing army and civil/military warnings in the Virginia document. There is no doubt the second grows from the first.
Now we skip forward past a painful war and the contentious fight to forge a national constitution to consider Madison’s words. Madison constructs as follows: a statement of the right followed by a semicolon, then a reduced (but still recognizable) quote of the first part of the Virginia document that asserts the purpose of the militia, and finally a “conscientious objector” dispensation.
The progression is still clear--Madison has tossed out the standing army objection (not at all unexpected after a war that absolutely required the states to turn their separate militias into a single unified army in order to have a chance at victory) but kept the Virginia language about the purpose of the militia. He has also included a specific and explicit statement of the right, and the semicolon marks them as two separate but related items.
By the time the amendment had worked its way through Congress the conscientious objector clause had been tossed, the “militia” and “infringement” clauses switched places (for better grammatical flow?), and the semicolon was gone. But Madison’s intent can clearly be seen in the original.
What are the common threads here? First, the fact that in his original text Madison uses a semicolon to divide the militia clause from the infringement clause is vital. They are two independent thoughts--the right does not depend on the existence of the militia, nor does the militia depend on the right. They are mentioned together solely because the mindset of the period assumed that a citizen called to serve in the militia would bring his own firearms, and government could not interfere with that.
Considering the “justification” clause on its own, one thing stands out: the world has changed. As mentioned, at the time of the writing of the Virginia document, the militia was the sole instrument in defense of the fledgling states. As the revolution progressed, it became clear that small, mobile bands of militia could harass the British Army sufficiently to keep the conflict simmering for many years, denying the British a clear-cut victory. After all, they were armed essentially the same: muzzle-loading muskets, deadly accurate in the right hands, but incapable of rapid fire. (The only real advantages the British had were artillery and hundreds of years of military discipline.) Trying to imagine a parallel today takes some thought: Vietnam springs to mind, but the analogy falls apart when one considers that Ho Chih Minh had the enthusiastic backing of the Soviet Union, to the point of advanced supersonic fighter jets. I’m trying to imagine a North Vietnamese farmer who owned his own MiG-21, or even a Kalashnikov, and coming up short. One could use the example of the Taliban in Afghanistan, but how many goat herders would normally have a rocket-propelled grenade over the fireplace? For wolves, perhaps?
Warfare has changed too dramatically to think that an “amateur” militia possessed of the normal weapons a private person might own could survive the onslaught of a high-tech equipped aggressor. The militia justification, compelling as it might have been in the 18th century, is now completely irrelevant. But as Volokh points out, irrelevant or not, it doesn’t affect the basic right.
Thus the inescapable and unpleasant conclusion: the right to bear arms described in the Second Amendment is not subject to the militia clause. Despite Orlando, despite San Bernardino, despite Newtown, despite Gabby Giffords, despite Ronald Reagan, despite Columbine, despite Aurora, despite John and Bobby Kennedy, despite Martin Luther King, the right to keep and bear arms is guaranteed by the Constitution. Any laws that any locality should choose to pass that limit that right will eventually be struck down, as the Supreme Court proved in D.C. v. Heller.
That the founding fathers used the militia as a justification for private firearms ownership is self-evident. That the justification they used is now stone dead is self-evident. That the right to bear arms needs to be revisited is self-evident. Reasonable people think that reasonable limits should be placed on gun ownership. That said, the text of the amendment is clear: an amendment to the Constitution will be required to change or restrict it in any way. And speaking as a firearms owner myself, it should indeed be amended and restricted.
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.
The suggested text went back and forth between the House and the Senate (changing incrementally every time), and eventually the text was ground down to the following:
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.
It is the only item in the Bill that contains a “justification” clause as well as an “operative” clause. The “justification” clause (the first 13 words of the amendment) has been the target of much speculation and difference of opinion about how to construe the text, and the fact that the Second is the only amendment with such a clause seems to call attention to it.
The following is an opinion, but the very well informed opinion of Eugene Volokh of the UCLA Law School: the Second Amendment belongs to a large family of similarly structured constitutional provisions: They command a certain thing while at the same time explaining their reasons. Without coming down on either side of the argument about how to construe the amendment, Professor Volokh points out that the clausal construction of the text was actually fairly common in contemporaneous state documents, and goes on to cite numerous examples.
Here is my analysis.
The Militia Justification
In Mason’s time, the Militia was not only the “proper, natural, and safe” defense of the state: it was the only defense. All able-bodied free white males of a certain age range were expected to serve and provide their own kit in the process. Note the way the Virginia article is constructed: a description of the militia, an assertion of exactly what the purpose of the militia is, a warning against standing armies, and finally language affirming the superiority of the civil authority over the military. What is missing? Any mention at all of a right to bear arms is missing. It seems as if the author has simply assumed the right does not require mentioning. (It is thought this might come from Mason’s long acquaintance with Blackwell and English Common Law.)
Now note the construction of the Pennsylvania amendment: first, an explicit statement of the literal right, mentioning self defense and service to the state, and then an almost word-for-word repetition of the standing army and civil/military warnings in the Virginia document. There is no doubt the second grows from the first.
Now we skip forward past a painful war and the contentious fight to forge a national constitution to consider Madison’s words. Madison constructs as follows: a statement of the right followed by a semicolon, then a reduced (but still recognizable) quote of the first part of the Virginia document that asserts the purpose of the militia, and finally a “conscientious objector” dispensation.
The progression is still clear--Madison has tossed out the standing army objection (not at all unexpected after a war that absolutely required the states to turn their separate militias into a single unified army in order to have a chance at victory) but kept the Virginia language about the purpose of the militia. He has also included a specific and explicit statement of the right, and the semicolon marks them as two separate but related items.
By the time the amendment had worked its way through Congress the conscientious objector clause had been tossed, the “militia” and “infringement” clauses switched places (for better grammatical flow?), and the semicolon was gone. But Madison’s intent can clearly be seen in the original.
What are the common threads here? First, the fact that in his original text Madison uses a semicolon to divide the militia clause from the infringement clause is vital. They are two independent thoughts--the right does not depend on the existence of the militia, nor does the militia depend on the right. They are mentioned together solely because the mindset of the period assumed that a citizen called to serve in the militia would bring his own firearms, and government could not interfere with that.
Considering the “justification” clause on its own, one thing stands out: the world has changed. As mentioned, at the time of the writing of the Virginia document, the militia was the sole instrument in defense of the fledgling states. As the revolution progressed, it became clear that small, mobile bands of militia could harass the British Army sufficiently to keep the conflict simmering for many years, denying the British a clear-cut victory. After all, they were armed essentially the same: muzzle-loading muskets, deadly accurate in the right hands, but incapable of rapid fire. (The only real advantages the British had were artillery and hundreds of years of military discipline.) Trying to imagine a parallel today takes some thought: Vietnam springs to mind, but the analogy falls apart when one considers that Ho Chih Minh had the enthusiastic backing of the Soviet Union, to the point of advanced supersonic fighter jets. I’m trying to imagine a North Vietnamese farmer who owned his own MiG-21, or even a Kalashnikov, and coming up short. One could use the example of the Taliban in Afghanistan, but how many goat herders would normally have a rocket-propelled grenade over the fireplace? For wolves, perhaps?
Warfare has changed too dramatically to think that an “amateur” militia possessed of the normal weapons a private person might own could survive the onslaught of a high-tech equipped aggressor. The militia justification, compelling as it might have been in the 18th century, is now completely irrelevant. But as Volokh points out, irrelevant or not, it doesn’t affect the basic right.
Thus the inescapable and unpleasant conclusion: the right to bear arms described in the Second Amendment is not subject to the militia clause. Despite Orlando, despite San Bernardino, despite Newtown, despite Gabby Giffords, despite Ronald Reagan, despite Columbine, despite Aurora, despite John and Bobby Kennedy, despite Martin Luther King, the right to keep and bear arms is guaranteed by the Constitution. Any laws that any locality should choose to pass that limit that right will eventually be struck down, as the Supreme Court proved in D.C. v. Heller.
That the founding fathers used the militia as a justification for private firearms ownership is self-evident. That the justification they used is now stone dead is self-evident. That the right to bear arms needs to be revisited is self-evident. Reasonable people think that reasonable limits should be placed on gun ownership. That said, the text of the amendment is clear: an amendment to the Constitution will be required to change or restrict it in any way. And speaking as a firearms owner myself, it should indeed be amended and restricted.
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