GUNS/BARMS

[Matey]

Original Intent and Purpose of the Second Amendment


Summary
The original intent and purpose of the Second Amendment was to preserve and guarantee, not grant the pre-existing right of individuals, to keep and bear arms. Although the amendment emphasizes the need for a militia, membership in any militia let alone a well regulated one, is not required to exercise the right to keep and bear arms.




Introduction

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.
One does not have to belong to a well regulated militia in order to have the right to keep and bear arms. The militia clause is merely one, and not the only, rationale for preserving the right. The Founders were expressing a preference for a militia over a standing army. Even if today's well regulated militia were the National Guard, the Second Amendment still protects an individual right to keep and bear arms.

There is no evidence from the writings of the Founding Fathers, early American legal commentators, or pre-twentieth century Supreme Court decisions, indicating that the Second Amendment applied only to members of a well regulated militia or that the sole purpose of this amendment was to preserve the right of states to keep their militias.

Evidence of an Individual Right

In his popular edition of Blackstone's Commentaries on the Laws of England (1803), St. George Tucker, a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge, wrote of the Second Amendment:

The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.
In the appendix to the Commentaries, Tucker elaborates further:
This may be considered as the true palladium of liberty... The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
Tucker's remarks are solid evidence that the militia clause was not the sole reason for preserving the right of the people to keep and bear arms. Tucker specifically mentions self-defense. This indicates two things: The scope of the right to keep and bear arms was not restricted to military purposes or the common defense (just such a provision was rejected by the Senate), and that "the people" means individuals, not a collective entity, and not a state.
(William Blackstone was an English jurist who published Commentaries on the Laws of England, in four volumes between 1765 and 1769. Blackstone is credited with laying the foundation of modern English law and certainly influenced the thinking of the American Founders.)

In the Federalist Papers, No. 29, Alexander Hamilton clearly states membership in a well regulated militia is not required for the right to keep arms:

What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
---The Federalist Papers, No. 29.
After James Madison's Bill of Rights was submitted to Congress, Tench Coxe (see also: Tench Coxe and the Right to Keep and Bear Arms, 1787-1823) published his "Remarks on the First Part of the Amendments to the Federal Constitution," in the Federal Gazette, June 18, 1789 He asserts that it's the people (as individuals) with arms, who serve as the ultimate check on government:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the 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 next article in their right to keep and bear their private arms.
"Coxe's defense of the amendments was widely reprinted. A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear "their private arms." The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights." (Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991).
Earlier, in The Pennsylvania Gazette, Feb. 20, 1788, while the states were considering ratification of the Constitution, Tench Coxe wrote:

Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.
William Rawle's "A View of the Constitution of the United States of America" (1829), was adopted as a constitutional law textbook at West Point and other institutions. In Chapter 10 he describes the scope of the Second Amendment's right to keep and bear arms:

The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.
This is another quote where it is obvious that "the people" means individuals since Rawle writes neither the states nor the national government has legitimate authority to disarm its citizens.
(In 1791 William Rawle was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He was also George Washington's candidate for the nation's first attorney general, but Rawle declined the appointment.)

A lengthier quote from Rawle, and more quotes from St. George Tucker are presented in the quotes from commentators section.


More quotes from the Founding Fathers.

The Early Supreme Court

There were only three Second Amendment related Supreme Court cases in the 19th Century. Here is a quote from the case of Presser v. Illinois, 116 U.S. 252 (1886) :

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government...the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
At the time of this decision the entire Bill of Rights was considered inapplicable to the states. It served as a limitation upon only the federal government (Barron v. Baltimore, 1833). Regardless of this limitation, the Presser court wrote that the right to keep and bear arms existed for "all citizens capable of bearing arms" and the states could not infringe upon this right.

More information regarding Supreme Court cases.

Individual Rights and the Militia

The militia clause was never meant to limit the right to keep and bear arms. Rather it was the "chief political reason for guaranteeing the right against governmental infringement. Keeping and bearing arms would be protected for all lawful purposes, but self-defense, hunting, shooting at the mark (i.e., target shooting), and other nonpolitical purposes had no place in a federal Constitution which delegated no power to regulate these activities. Since Congress could raise and support armies, the superiority of the militia in securing a "free" country must be declared." See Halbrook, Stephen P. "The Right of the People or the Power of the State Bearing Arms, Arming Militias, and the Second Amendment". Originally published as 26 Val. U. L.Rev. 131-207, 1991).

The following is excerpted from To Keep and Bear Arms: The Origins of an Anglo-American Right, Joyce Lee Malcom, Harvard University Press, 1994:

The Second Amendment was meant to accomplish two distinct goals, each perceived as crucial to the maintenance of liberty: First, it was meant to guarantee the individual's right to have arms for self-defense and self-preservation. Such an individual right was a legacy of the English Bill of Rights. This is also plain from American colonial practice, the debates over the Constitution, and state proposals for what was to become the Second Amendment. In keeping with colonial precedent, the American article broadened the English protection. English restrictions had limited the right to have arms to Protestants and made the type and quantity of such weapons dependent upon what was deemed "suitable" to a person's "condition." The English also included the proviso that the right to have arms was to be "as allowed by law". Americans swept aside these limitations and forbade any "infringement" upon the right of the people to keep and bear arms.
These privately owned arms were meant to serve a larger purpose as well, albeit the American framers of the Second Amendment, like their English predecessors, rejected language linking their right to "the common defense". When, as Blackstone phrased it, "the sanctions of society and laws are found insufficient to restrain the violence of oppression," those private weapons would afford the people the means to vindicate their liberties.

The second and related objective concerned the militia, and it is the coupling of these two objectives that has caused the most confusion. The customary American militia necessitated an armed public, and Madison's original version of the amendment, as well as those suggested by the states, described the militia as either "composed of" or "including" the body of the people. A select militia was regarded as little better than a standing army. The argument that today's National Guard, members of a select militia, would constitute the only persons entitled to keep and bear arms has no historical foundation. Indeed, it would seem redundant to specify that members of a militia had the right to be armed. A militia could scarcely function otherwise. But the argument that this constitutional right to have weapons was exclusively for members of a militia falters on another ground. The House committee eliminated the stipulation that the militia be "well-armed," and the Senate, in what became the final version of the amendment, eliminated the description of the militia as composed of the "body of the people." These changes left open the possibility of a poorly armed and narrowly based militia that many Americans feared might be the result of federal control. Yet the amendment guaranteed that the right of " the people" to have arms not be infringed. Whatever the future composition of the militia, therefore, however well or ill armed, was not crucial because the people's right to have weapons was to be sacrosanct. As was the case in the English tradition, the arms in the hands of the people, not the militia, are relied upon "to restrain the violence of oppression"

The Constitution gave to the federal government broad authority over state militia. Was the Second Amendment meant to placate states fearful about this loss of control? In fact not one of the ninety-seven distinct amendments proposed by state ratifying conventions asked for a return of any control that had been allocated to the federal government over the militia. Sherman's [Roger Sherman a representative of Connecticut] proposal that some power be returned to the states was rejected by the drafting committee. In any event, the Second Amendment does nothing to alter the situation. Indeed, that was precisely the complaint of the anti-Federalist Centinel in a discussion of the House version of the arms article. The Centinel found that "the absolute command vested by other sections in Congress over the militia, are [sic] not in the least abridged by this amendment." Had the intent been to reapportion this power some diminution of federal control would have been mandated. None was.

... George Mason had attempted to add... a proviso during the convention when he moved to preface the clause granting Congress authority to organize, arm, and discipline the militia with the words "And that the liberties of the people may be better secured against the danger of standing armies in time of peace." A strong statement of preference for a militia must have seemed more tactful than an expression of distrust of the army. The Second Amendment, therefore, stated that it was the militia, not the army, that was necessary to the security of a free state. The reference to a "well regulated" militia was meant to encourage the federal government to keep the militia in good order.


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