THE SECOND AMENDMENT TO THE CONSTITUTION FROM THE
PERSPECTIVE OF A STRICT CONSTRUCTIONIST
By
Dr. Jimmie R.
Applegate
Constitutional
Conservatives believe the “Founding Fathers” of the United States of America
were guided by divine wisdom when they wrote the Declaration of Independence,
the Constitution and the Bill of Rights.
The Bill of Rights is the first ten amendments to the Constitution
ratified in 1791 at the insistence of the Anti-Federalists who demanded the
Constitution more clearly emphasize the endowed rights of individuals. Constitutional Conservatives believe in the
sanctity of these documents; that is, the documents mean exactly what they say,
and that any contemporary interpretations must consider events, conditions and
arguments made at the time they were ratified.
The 2nd Amendment is a case in point.
The
2nd Amendment is two lines long.
It is concise and to the point—“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 sounds
like a simple statement meaning having and holding arms is an endowed right of
the people that is not to be violated.
Unfortunately,
all is not always as simple and clear cut as it appears. So the remainder of this paper is a brief
discussion of the background, the situation, the events and the discussions
resulting in the ratification of the Constitution and Bill of Rights in
1791. The purpose of this section is to
set the stage, describe the scenery and consider dialogue leading up to
ratification. In other words, the
purpose is to interpret these formal events from the perspective of a
Constitutional Conservative to justify a strict construction of the 2nd
Amendment. The author contends the
original intent of the 2nd Amendment was to codify the right of
individuals to keep and bear arms of sufficient quality and quantity to, if
necessary, overthrow a government that was not functioning of, by and for the
people collectively and individually.
By
the late 1700’s the English colonists in the New World had a long history of
keeping and bearing arms dating back to 880 A.D. during the rule of King
Alford. Threehundredfifty years later
most Englishmen were accustomed to being armed voluntarily, either for self- protection
or by a king’s decree. So it is not
surprising that by the middle 1500’s armed citizens were given the name
“militias”. The militias included all
able bodied men. They were not
conscripted, not enlisted, not drilled and certainly not professional
soldiers. They were nothing more than
citizens who kept and bore arms.
Disagreements
over the power of kings versus that of Parliament resulted in conflict. When the citizen militias refused to follow
the orders of Parliament, Parliament created the “New Model Army” to replace the
ineffective militias 130 years before the Revolutionary War and 146 years prior
to the ratification of the Constitution.
Militias composed of all able bodied males just because they were
citizens living in a specific part of the realm and who coalesced primarily for
protection were replaced by professional soldiers who were conscripted, paid
and trained as men of war.
The
preceding narrative set the stage for the Revolutionary War and the role
militias played in English and Colonial American history. It also describes the general understanding
of their role in protecting liberty and freedom. On April 18, 1775 at Lexington Green the shot
“heard round the world” most likely was fired by a Minuteman. The Massachusetts’s colony had taken the lead
in creating an elite group of trained soldiers ready to engage an enemy at a
minute’s notice, thus the name Minutemen.
It was a small group of “professional” Minutemen who faced the British
at Lexington Green. The Minutemen were
an elite, well trained and armed force, whereas the militias remained as a rag
tag group of untrained citizens. These
differences were exacerbated during the Revolutionary War as the fighting
forces became more professional. This
was well known to the Founding Fathers and the framers of the Constitution.
The
endowed right of citizens to keep and bear arms was the subject of many verbal
and written comments during the ratification debates. In Letters
from the Federalist Farmer to the Republican, Richard Henry Lee argued that
to preserve liberty, it is essential that the whole body of the people always
possess arms, and be taught alike, especially when young, how to use them. Patrick Henry argued “the great object is
that every man be armed…Everyone who is able may have a gun”. These same Anti-Federalists prevailed in the
argument to add a “Bill of Rights” to the Constitution to include the 2nd
Amendment guaranteeing the right to keep and bear arms. The Anti-Federalists were not alone in their
argument. The Federalist, Daniel
Webster, also argued “the real deterrent to governmental abuse is an armed
population”. James Madison, another Federalist, agreed “the
real deterrent of governmental abuse is the armed population”. A foremost Federalist, Alexander Hamilton,
said, “the people retained the right to defend their political rights and
possessed the means to do so” if their elected representatives failed
them. Both Anti-Federalists and
Federalists agreed the people had a right to be armed and, not only that, but
an armed populace was critical to the preservation of liberty. (See, The
Federalist Papers)
The
arguments in favor of allowing the people to keep and bear arms were reinforced
again and again in the state Constitutional Conventions to ratify the
Constitution. For example New York, New
Hampshire, Virginia, North Carolina and Rhode Island ratified the Constitution
with the understanding the people had a right to keep and bear arms and that
Congress would never disarm law abiding citizens.
In
summary, when the Constitution was ratified in 1791 the common understanding of
the word “militia” in the 2nd
Amendment was all able bodied male citizens who resided in the
same geographic division (underline added for emphasis). For example, the words “populace”, “population”,
“the whole body of people”, “citizens” and “everyone” were used time and time
again in place of the word militia. Once
an understanding of what militia meant in 1791 from the perspective of a strict
constructionist of the Constitution, it is easier to put the meaning of the
word into the context of the time in which it was written. And after all, that is the purpose of this
paper.
I
leave you with these final words:
· from George
Mason: “I ask, sir, what is the
militia? It is the whole people …..”
· from Alexander
Hamilton: “The best we can hope for
concerning the people at large is that they be properly armed”.
· from Samuel
Adams: “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”.
· from Thomas
Jefferson: “No Free man shall ever be
debarred the use of arms.”
· from Noah
Webster: “The supreme power in America
cannot enforce unjust laws by the sword; because the whole body of the people
are armed, and constitute a force superior to any band of regular troops that
can be, on any pretense, raised in the United States”.
Author’s
note:
The
author quoted freely from Vandercoy, David E., The History of the Second
Amendment, Valparaiso University Law Review, 1994; and The Federalist Papers.