Original intent and the Second Amendment

Katie Rhodes

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 and the right to bear arms — as if the country’s founders can be held responsible for the carnage taking place in the nation’s schools, homes and public places.

As a matter of fact, this topic 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, but the right to own firearms, as it is enshrined in the Second Amendment, came out of the various state ratifying conventions. According to the documentary History of the Bill of Rights, four states called for such an amendment. The proposals from New York and North Carolina were essentially the same as that from Virginia:

“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.”

Only a proposal of the Pennsylvania convention included language about the right to self-defense. Significantly, this was also balanced out by the right of the community to protect itself from “danger of public injury”:

“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.”

According to the Annals of Congress, however, James Madison did not include this language about self-defense in the draft he presented to the House on June 8, 1789:

“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.”

Why was there no mention of self-defense? The right to defend one’s person or home was long recognized in English common law and had been included in various state constitutions. But the founding fathers saw the federal government as one with limited powers, which left the regulation of community matters to the states themselves. Moreover, Madison’s proposed amendment was referred to a committee which switched the position of the first two clauses, drawing even tighter the connection between the militia and the right to bear arms:

“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.”

The debate in the House was begun by Elbridge Gerry of Massachusetts, who commented only on the last clause:

“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.” 

The discussion which followed involved only this clause about religious scruples. There was absolutely no mention 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, the House sent the proposed amendment to the Senate, which deleted the clause about religious scruples and shortened the language to its present form. No record exists of the debate, if any took place, concerning these changes:

“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 was most familiar. 

In 1757, during the French and Indian War, we find in Hening’s Statutes of Virginia an act “for the better regulating and disciplining the militia”:

“Every soldier shall be furnished with a firelock well fixed … and shall also keep at his place of abode one pound of powder and four pounds of ball.” 

Even during wartime, when pitched battles were being fought in the American homeland between French and British troops and their respective Native American allies, the militia’s right to bear arms meant only the obligation to keep at home a single-shot musket, together with a limited amount of ammunition. 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.” The term insurrection at that time was mostly 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, drawn from the militia, to ensure that black folks were kept from night-time rendezvous when they might plan or initiate revolt. Hence it was required that members of the militia keep their firearms close at hand:

“Every officer and soldier shall [be] armed, equipped, and accoutered, as follows … with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel … [and] each non-commissioned officer and private shall have at every muster one pound of good powder, and four pounds of lead … Provided, That the militia of the counties westward of the Blue Ridge … shall not be obliged to be armed with muskets, but may have good rifles … in lieu thereof.” [Hening, 12:12]

West of the Blue Ridge mountains, where slaves were few, the danger was rather from warriors of the First Nations defending their homelands. Here, rifled weapons were more useful than muskets against shadowy figures slipping through the woods; but east of the Blue Ridge, only muskets — less deadly than rifles — were allowed. 

Consistently, over a 30-year period, the right to bear arms — as part of a regulated militia — meant keeping at home a muzzle-loading, single-shot, long-barreled weapon. If such a firearm were brought into a church or a theater or a school, the damage could be contained; after one shot the perpetrator would 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 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. The same year the Constitutional Convention met in Philadelphia, a group of rebels in western Massachusetts had 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 in the forefront of the minds of the men who met that summer in Philadelphia. 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 Constitutional Convention, and of the various state ratifying conventions, had no intention, the next time, of giving rebels access to the artillery.

What would the country’s 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 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 federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) 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 militia. Now, according to certain proponents, it protects the right of a mass murderer to purchase on the open market a killer’s weapons of choice, along with thousands of rounds of ammunition. Can we not conclude that something has gone awry?  

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

This opinion column does not necessarily reflect the views of Boulder Weekly. 

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