Breaking Down the 2nd Amendment

By Bill Arnett

In 1781, The American Revolution was over. The 13 colonies were now 13 independent states and would unite to form a new nation. But who or what would govern it? The very idea of a divine right king and a noble-blooded ruling class was repellent to our founders. Rather, this nation would be ruled by the people. One person would be elected as chief executive, but with a system of checks and balances so they would not have unlimited power. This “president” would be selected as the most able among the people and no one was more popular than General George Washington.

To many, this was a huge problem. What was to prevent beloved war hero George Washington, with a cabinet of former staff officers (such as Alexander Hamilton), from sending his fiercely loyal U.S Army to congress and, at bayonet point, declaring himself King George the First of Columbia?

It may sound ridiculous, but this was a sincere concern of the founding fathers. This fear was felt most strongly by the anti-federalists who worried, if the name wasn’t too obvious, of giving the new federal government any powers above the most bare essentials. Things like diplomatic relations, foreign trade and resolving inter-state disagreements were enough. To give the federal government, this imagined entity with it’s popularity contest-winning president, an army to do with what it liked was asking for a coup. These people had just fought a revolution to overthrow a king and would certainly didn’t want to have to do it again.

The solution was crude and simple: there would be no national army. If an army was ever needed congress would authorize its formation, oversee its use and then dissolve it when it wasn’t needed. In lieu of a standing army our national defense would be provided by each state's militias, essentially part-time citizen soldiers that would leave their 9-to-5 when duty called. These would be administered by the individual states, making them completely decentralized, something the anti-federalists liked, effectively coup-proofing the new nation.

King_George_I_of_Columbia.jpg

If this plan was liked by the Anti-Federalists you can bet there were people that didn’t like it: the Federalists. The Federalists wanted a robust federal government with a national bank, business incentives and well trained professional army. They had a strong argument. During the Revolution, the first into battle were the colonial militias. As irregular soldiers go their effectiveness was irregular. Against the well trained, well equipped and uniformly dressed British regulars they were just as likely to fight as run away. After the first battles, the Continental Congress authorized the formation of the Continental Army, not made up of moonlighting farmers and blacksmiths but by professional soldiers whose only job was to fight. They would be drilled, equipped and fight as a modern land army. It would be this army, despite the popular depiction of minutemen and rag-tag rebels, that would force and accept the surrender of British General Cornwallis at Yorktown.

Like so much of U.S. history, particularly the Constitution, a compromise would be struck. The Federalists would get a modest national navy (it’s hard to overthrow a government with a few frigates), and a small number of federal soldiers to guard the frontier and man the fort at West Point. In return the Anti-Federalists would get their wish: the United States would have no standing army and would instead be defended by the state militias. Acknowledging the deficiencies of militias, it was agreed that the federal government would pay to equip, train and maintain them.

But what if they didn’t? What if some future government decided to just stop paying the individual militia’s bills? This would re-open the possibility of a coup. The Anti-Federalists needed further assurances. Language was added to the Bill of Rights, a package of government-limiting amendments, to keep the nation's military power in the hands of the people and not any would-be king. They proposed this passage:
“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.”

It would be rewritten as this:
“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 one religiously scrupulous of bearing arms shall be compelled to render military service in person.”

And finally this:
“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.”

Even with this, what would become the Second Amendment, keeping military power out of the hands of a potentially power-hungry president, the Anti-Federalists weren’t satisfied. To make a coup even more difficult they added this, the Third Amendment:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

This system of national-defense-by-state-militia would prove a failure during the War of 1812. The U.S. Army would then balloon from 7,000 to 36,000 troops and become accepted as the most effective means of national defense. However, the state-administered well-regulated militias live on today in the form of the National Guard, funded by the federal government but at the command of each state's governor.

The Constitution does not provide for the personal right to a firearm. English common law considered self protection a natural right so it was never debated or even brought up. In 1789, the idea of a person living, on what was mostly wild frontier, without a firearm would seem like a joke. This does not mean that firearms are evil or useless or should be confiscated. It does means the argument that even the most modest form of regulation represents a violation of constitutional rights is invalid.


I wrote this mostly as an exercise for myself in writing an effective argument. I chose to contextualize the Second Amendment because I never thought we understood it correctly. Out of context, in modern English, the phrase “the right of the people to keep and bear arms shall not be infringed” seems to clearly confer an individual person's right to a firearm. But adding context, specifically Article I, Section 8, and after considering the well-documented debates between the founders, I believe the meaning changes to reflect a concerted effort to prevent the young nation from descending into monarchy, surely a fear of any revolutionary after winning a bloody conflict.

(More context? How about this: the word “Persons” appears 11 times in the Constitution and Bill of Rights as ratified, each time referring to a single individual. The phrase “The People” appears, in addition to the Second Amendment, seven times, always referring to a collective body of persons. If the Second Amendment was meant as an individual right it would have been written “the right of persons to keep and bear arms....”. In fact, the first draft shown above uses both “the people” and “persons” in the same passage, giving the right of militia forming to the collective while protecting the religious objective of the individual. Perhaps it’s just a Founding Father typo. This is a much shorter argument but not nearly as fun to research and write!)


 

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