“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.”
James Madison wrote the Bill of Rights in response to a call from the states for a compromise between the Federalists and the Anti-Federalists. Prominent Anti-Federalists refused to ratify the Constitution without more protection for individual liberties and rights and to also limit possible abuses of the government. The Bill of Rights was adopted in 1791 to guarantee these rights to the people.
Each of the ten amendments making up the Bill of Rights has the express purpose to safeguard the individual’s rights and to establish specific limits on governmental power. A record of the House of Representatives debate on the Bill of Rights, specifically in reference to the 2nd Amendment, reads: “This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government….” In addition, in James Madison’s speech to Congress regarding the proposed adoption of the Bill of Rights, he states: “… I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.“ To suggest that only the 2nd would stand in stark contrast to this goal of protecting the rights of citizens, is to ignore the entire historical context and reasoning of these right’s ratification.
The operative clause assigns the right to keep and bear arms to the individual people, unconnected with service in a militia .
The prefatory clause “A well regulated Militia, being necessary to the security of a free State” is announcing a purpose but not the final scope for the operative clause .
This same sentence structure can be found elsewhere during the period, where a prefatory clause is used to announce a purpose and not in limitation of the scope of the operative clause. For example, The Rhode Island Constitution, Article 1 Section 20:
“The press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty. …“
Even without analyzing the grammatical structuring of sentences and lexicon of the time, there is no better source for determining “the people” whom this right belongs than to hear the framers and founders themselves:
“Where is the difference between having our arms in our possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” – Patrick Henry, 1836
“No free man shall ever be debarred the use of arms.” – Thomas Jefferson, 1776
“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…” – Richard Henry Lee, 1788
“The great object is, that every man be armed. Every one who is able may have a gun.” – Patrick Henry, 1788
“What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take arms.” – Thomas Jefferson, 1787
“And that the said Constitution be never 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, 1788
Even with the operative clause declaring the right to keep and bear arms lies with the people, it is still important to discuss the Militia in the context of being one of the purposes for arming the people.
The wording “well regulated” has somewhat shifted it’s primary meaning since 1787. While now the connotation of the word lends itself to mean “controlled,” well regulated then was to mean “in proper working order.” Something was said to be well regulated if it was functioning as expected, and in reference to the militia this was meaning that it was well equipped.
Sentences in the Oxford English Dictionary using this phrase can help discern the meaning of “well-regulated” during this period:
- 1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”
- 1714: “The practice of all well-regulated courts of justice in the world.”
- 1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”
- 1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”
- 1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”
- 1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”
The Militia differs from the federal government’s Continental Army in that the Militia were independently organized citizens who fought unbound from federal government authority. The framers themselves have asserted that the militia in question is the whole of the body of citizens and distinctly separate from any federal standing army :
“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 birthright of an American…[T]he 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.” – Rep. Tench Coxe, 1788
“I ask, Who are the militia? They consist now of the whole people, except a few public officers.” – George Mason, 1788
The legal definition of the Militia now as outlined in the United States Code, Title 10, Section 311 further highlights the general body of the public as being the Militia :
“The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.”
As the second amendment was ratified at a time when the primary form of common military arms were muzzle-loading rifles, it is falsely asserted that these are the only form of arms that the amendment protects. Just as the freedom of religion does not only apply to religions established before 1791, or the right to free speech/press do not only cover word of mouth and print media but have expanded to radio, television, and the internet, so too does the 2nd Amendment evolve.
In United States v. Miller (1939), the Supreme Court held that Miller, whom was in possession of a sawed-off shotgun of less than 18 inches, was in violation of the National Firearms Act of 1934. The court asserted that the 2nd Amendment did not guarantee a citizens right to a gun which had no “reasonable relation to the preservation or efficiency of a well regulated militia.” In other words, guns in the hands of citizens must be that of the type of weapons that would have use in a militia.
More recently in Printz v. United States (1997), in the concurring opinion written by Justice Thomas he states:
“In Miller, we determined that the Second Amendment did not guarantee a citizen’s right to possess a sawed off shotgun because that weapon had not been shown to be “ordinary military equipment” that could “contribute to the common defense.“
In Caetano v. Massachusetts (2016) the Supreme Court, in a per curiam decision, ruled:
“The Court has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding'”
- “The Bill of Rights: A Brief History.” American Civil Liberties Union.
- Annals of Congress. The Debates and Proceedings in the Congress of the United States. “History of Congress.” 42 vols. Washington, D.C.: Gales & Seaton, 1834–56.
- Madison, James. “Amendments to the Constitution.” 8 June 1789. Speech.
- SUPREME COURT OF THE UNITED STATES, DISTRICT OF COLUMBIA ET AL. v. HELLER (No. 07–290)
- Rhode Island Constitution, 1842, Article 1 § 20
- Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836
- Thomas jefferson, The Jefferson Papers 344 – Proposed Virginia Constitution, 1776
- The Founders’ Constitution, Volume 3, Article 1, Section 8, Clause 15, Document 11
- The Founders’ Constitution, Article 1, Section 8, Clause 12, Document 27. Debate in Virginia Ratifying Convention, 14 June 1788
- Jefferson, Thomas. Letter to William Stephens Smith. 13 Nov. 1787. MS. N.p
- Debates and Proceedings in the Convention of the Commonwealth of Massachusetts. pg. 86. 1788
- Tench Coxe, To The People of the United States, PA. Gazette, 16 Jan. 1788
- George Mason, The Founders’ Constitution, Article 4, Section 4, Document 9, Debate in Virginia Ratifying Convention, 14 June 1788
- 10 USC § 311: Militia: composition and classes, 1994 Main Ed.
- U.S. Supreme Court, United States v. Miller, 307 U.S. 174 (1939)
- U.S. Supreme Court, Printz v. United States (95-1478), 521 U.S. 898 (1997) (Justice Thomas, concurring)
- U.S Supreme Court, Caetano v. Massachusetts, 577 U.S. (2016)