Purpose of the 2nd Amendment

by Steven Krulick

SK@Krulick.com
PO Box 467, Ellenville NY 12428
© 2005, 2008, Kryolux Inc

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The 2nd Amendment didnít arise in a vacuum. The need to add a Bill of Rights to the new federal Constitution, as urged by Thomas Jefferson, George Mason, and other anti-Federalists, was questioned mightily at first by Federalists such as Hamilton and Madison, who considered it unnecessary, or even dangerous! Only when Madison narrowly won his seat in Congress with a pledge to incorporate a BoR as a first order of business did he determine to honor that pledge with a Bill of Rights that wouldnít weaken his strong-central-government Constitution. As the Federalists won big in the first Congressional election, placating the anti-Federalists wasnít even a priority of that first Congress, which was more concerned with the massive debt and with foreign alliances. Still, Madison pushed "the nauseous project," as he termed it, through the House, and then, with the Senateís passage, twelve amendments were sent to the states for ratification. When #3 through #12 passed, those ten became what we call the Bill of Rights, though they didnít officially carry any such name at the time.

There was NO general cry during the 1780s for federal protection of individual gun ownership; the Constitution didn't address it, neither prohibiting nor permitting it. That remained a state matter, which the BoR didn't change. IF the 2nd Amendment had been about protecting private gun ownership for its own sake -- or for any purpose desired by the owner -- the ratification debates would have been full of references to the virtues of arms ownership, or to frontier-dwellers' need to protect themselves, or to rural citizens' need to hunt game. No, the only concern raised constantly, since before the Constitution itself was ratified, was about militias vs. standing armies, and how much control the states would maintain over their militias in the new setup.

Madison believed in the virtue of a "universal" militia of citizen-soldiers (i.e. free, adult, property-owning white males only, serving required conscript duty), controlled by state legislatures and governors, with local officers the troops knew and trusted. He did not favor "select" militias (a smaller, better-trained elite corps) or standing armies, as the more-militarily-experienced Hamilton and Washington did. The Militia Act of 1791 fleshed out the Constitution's militia clauses using Madison's model, requiring every qualified, non-exempt adult white male to secure, at his own expense, a standard militia musket and supplies -- making it more of a burden and tax than what we would consider a "right" -- and muster himself and register his militia weapons each year in an organized state militia.

HIS draft of a militia amendment was based on Jeffersonís request that the state militias maintain primacy over a standing army, and that the right of the STATES to maintain their pre-existing militias wouldnít be weakened or destroyed by the feds, either through action or inaction. That it was strictly a militia amendment can be seen in his complete draft of the amendment, which essentially DEFINES "bearing arms" as "to render military service in person" and included a conscientious objector clause.

The "Second Amendment" is a republican-insprired "declaratory clause" that confirms that because the well regulated militias of the states are necessary to their security, the people, as the enfranchised body politic, from which those militias are drawn, has the right to democratically organize, control, maintain, man, and arm those militias, free from fear the federal govt will FAIL to provide for arming them, as the Constitution mandates it must, but as the anti-feds feared would happen, thus weakening them or destroying them, and building a standing army, "the bane of liberty," on the ruins! It has NOTHING to do with "personal gun rights" independent of militia service! NOTHING!

Jeffersonís seventh letter regarding his contribution to the BoR process was written to Dr. Joseph Priestley, June 19, 1802. It, like the other six letters (written 12/20/87, 2/7/88, 2/12/88, 7/31/88, 3/13/89, and 3/18/89), can be found by date at:

http://www.constitution.org/tj/jeff.htm:

"One passage, in the paper you enclosed me, must be corrected. It is the following, Ďand all say it was yourself more than any other individual, that planned and established ití i. e., the Constitution. I was in Europe when the Constitution was planned, and never saw it till after it was established. On receiving it I wrote strongly to Mr. Madison, urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the States of all rights not specifically granted to the Union. He accordingly moved in the first session of Congress for these amendments, which were agreed to and ratified by the States as they now stand. This is all the hand I had in what related to the Constitution."

Notice, as mentioned, the purpose of the 2nd Amen was ONLY "the substitution of militia for a standing army," with no mention of "guns" or "individual rights"! Again, in EACH letter, each time he brings up his concerns for why a BoR is desired, the ONLY concern he ever brings up regarding what was to become the 2nd Amen is his concern over "standing armies" and NEVER gun ownership per se or any individual rights in that regard!

According to TJ, Madison submitted an amendment for "the substitution of militia for a standing army" and another for "an express reservation to the States of all rights not specifically granted to the Union"! And it was THESE [purposes behind the] amendments "which were agreed to and ratified by the States as they now stand."

Hereís what TJ said to Washington, September 9, 1792:

"Of this the few letters I wrote on the subject (not half a dozen I believe) will be a proof; and for my own satisfaction and justification, I must tax you with the reading of them when I return to where they are. You will there see that my objection to the Constitution was that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies, trial by jury, and a constant habeas corpus act. Colonel Hamiltonís was that it wanted a king and house of lords. The sense of America has approved my objection and added the bill of rights, not the king and lords."

Again, WHAT did TJ ask for? A right for any person whatsoever to own and carry guns? NO!

FREEDOM FROM STANDING ARMIES! America APPROVED HIS objection and added the bill of rights, which, clearly included THOSE protections HE LISTED! Personal gun rights are simply not to be found there!

The 2nd Amen is unique... the ONLY BoR amendment that SPELLS OUT the reason for its existence!

And that is why one canít ignore it! In LAW, specifically in Constitutional interpretation, there ARE NO subordinate clauses! Chief Justice John Marshall, in Marbury v. Madison, stated that there IS NO "surplusage" in the Constitution! This "debate" is ONLY being promulgated by those who CANíT or WONíT accept that the 2nd Amen MUST be read and understood IN ITS ENTIRETY!

IF they were not writing a narrowly focussed MILITIA AMENDMENT, they could have simply left OUT the first half!

Yet even so, based on what Madison MEANT by "bear arms," even the ABSENCE of the first half leaves no doubt that it is strictly a militia amendment!:

"Main clause" is a grammatical, NOT a legal term; there are NO subordinate "clauses" in Constitutional interpretation... the law MUST be interpreted in its entirety. The ENTIRE 2nd Amen is rightly seen as a militia amendment, not a gun amendment, particularly when the phrase "bear arms" is properly understood as MEANING "serve as soldier," or "render military service" which is the RIGHT the particular individuals who qualify to serve have -- to serve in the STATE-RUN militias -- and it is THAT one of the rights the feds canít infringe upon, along with the others.

Though the commas DO make a difference in structural interpretation, the mere existence of the well-regulated-militia and security-of-a-free-state phrases show the focus and purpose of the 2nd Amen constitutionally, as there is NO surplusage in the Constitution. The functional sentence IS and ALWAYS WAS "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." In its entirety.

The argument does not hang exclusively on the number of commas, but on the presence of the militia clause itself, as the courts have confirmed, and on the meaning of the term "bear arms" as Madisonís draft confirms.

There is NO SURPLUSAGE in the Constitution, as Justice Marshall said. If itís there, it MEANS something!

As the 2nd Amen is the ONLY amendment in the BoR that spells out the PRECISE reason for itís being, one canít simply ignore it or treat it as optional. This isnít a grammatical exercise, but "a constitution we are expounding!" (Marshall)

The Anti-Federalists offered no purpose for the Second Amendment other than the perceived danger of standing armies. Jonathan Elliotís records of the debates in the ratifying conventions contain at least 80 pages of discussion concerning standing armies and the militia, 1 Elliotís Debates, supra, at 88, 371-72; 2 Id. at 96-99, 406, 520-522, 531, 536-37, 3 Id. at 378-94, 400-03, 405-31, 440-41; 4 Id. at 97-100, 214-15, 260-62; 5 Id. at 127, 440, 443-44, 451, 464-67, 480, and not a single reference to the need to "bear arms" (or to "carry guns") for any purpose other than militia service. Similarly, the index to Herbert Storingís The Complete Anti-Federalist -- the most comprehensive collection of Anti-Federalist writings -- lists 76 references to "standing armies." (Complete Anti-Federalist, supra, at 94-95.) That same index shows only two references to a "right to bear arms,"... The 2nd Amen makes NO reference to "weapons" at all! The term is "BEAR ARMS," which is NOT about any weapons per se, but about rendering military service in person in a well-regulated militia!

George Mason articulated the Anti-Federalist fear that the Constitution did not sufficiently protect the state militias from destruction, and the 2nd Amen was drafted later to address these ratification concerns:

"The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless -- by DISARMING them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them..."

(3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1836), at 379.) The Anti-Federalist concern, therefore, was that the Congress might allow the state militias to die simply by failing to arm them, NOT by confiscating existing weapons.

The phrase "disarm" was clearly used in the 2nd Amen and ratification debates to mean "refuse to provide arms for" the militias. The debates among the states reflected a fear that giving Congress excessive power over the militia would enable Congress not only to regulate the militia, but also to disarm it completely, leaving the states defenseless against the federal government. In this sense, the state militias were thought to function as the "bulwarks of liberties." (Statement by Gov. Randolph, in 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 400 (1836; rprt.1941).)

The 2nd Amen (and the Constitution itself) neither prohibits NOR permits gun ownership; itís SILENT on individual gun ownership!

The ONLY right that can be called INDIVIDUAL, since the word "individual" does NOT appear IN the 2nd Amen, which means such interpretation is NOT clear, but must be inferred, is the RIGHT of "the people" which is a collective term in itself. The SCotUS says "The People" which is a "class of persons" (United States v. Verdugo-Urquidez), in this case, in 1789, the class comprising able-bodied property-owning white males of suitable age and not in prison, have the right to "bear arms," which is a military term equal to "serve as a soldier" in the state-run militia. The state has the right, or authority, or power to appoint officers and maintain the militia. The feds canít force the weapons to be stored in some depository, hence those INDIVIDUALS enrolled in the militia who have also enrolled (that is, REGISTERED) their guns (see Militia Act of 1792) may store their PERSONAL MILITIA weapons at their homes. AS members of the class of voters, i.e., the enfranchised body politic, they also participate in the "keep arms" function, which involves maintaining the "upkeep and readiness" of that militia. Thatís it.

There IS nothing in the 2nd Amen to EXCLUDE individual private ownership of arms. But thereís nothing in the 2nd Amen to GUARANTEE absolute individual ownership of arms either! Thatís because the 2nd Amen wasnít ABOUT that! Those individuals who qualified for "bearing arms" (serving) within a well regulated militia could not be deprived of owning and storing at home THOSE weapons in service to the militia, such weapons being inspected and "enrolled" (registered) each year during the call up for drilling and taking a "return of militia" to maintain a record of the inventory of men and weapons the state had at its disposal (Militia Act of 1792).

Other than that, thereís nothing to prevent the feds or states from placing limits on the classes of weapons that people may own, and restrict the classes of individuals who may own weapons. 200+ years of SCotUS and Appellate rulings have affirmed all this. And all within 2nd Amen interpretation.

The 2nd Amen neither protects nor prohibits owning and carrying weapons, since thatís not why it was written or what the language means! (That is a matter for the states to deal with, under their internal police power and public safety and order powers; they CAN, if they choose, provide/protect an INDIVIDUAL right to own guns, in their respective state constitutions, OR they can deny/prohibit such a right.)

In the 2nd Amen, the federal govt (and the federal govt only, not the state govts, as per Presser and Cruikshank) is merely prohibited from infringing on the right (power, for those purists who claim states donít have rights) of the states to maintain their militias, particularly by "disarming" them, which, as George Mason said during ratification debates, meant failing to "arm" them, as they were instructed to do by the Constitutionís militia clause (which also gave the states the right/power to appoint their own officers and do the actual discipline the feds laid down for them to follow), and thus lead to their weakness and inability to stand up to federal standing armies, one of the anti-feds greatest fears.

Thatís about it. NO reference to hunting, personal self-defense, target shooting in the Amendment OR any of the Congressional debates over it.

The right to bear arms is merely the JUS MILITIAE, or the right of the Freemen (the enfranchised body politic) to be involved in the stateís (or nationís) military function, as a citizen-soldiers (as opposed to a "regular" professional soldier in a standing army) "trained to arms" and "enrolled" into an organized, "well regulated" state militia. Itís not about "carrying arms" or "kinds or arms" but BEARING ARMS (to serve as a soldier).

There is NOTHING in the drafting and debating and passage of the 2nd Amen that speaks about "individual gun ownership" independent of militia service! Itís all about state versus federal control and arming of the militia, and the virtues of militias versus standing armies, since itís a MILITIA amendment and NOT a GUN amendment!

Miller confirms this. The SCotUS in Miller said the 2nd Amen must be viewed thusly:

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces [the well regulated militia described in the previous paragraph] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

So, where in the congressional debates WERE the other reasons? Why even give ANY reason? Why not leave it out, as the other amendments are not similarly preambled? Did Jefferson give any reason other than to maintain the primacy of the militia over the standing army? HE said THAT reason was put forth by Madison, and THAT was what was ratified! WE HAVE the preamble:

Blackstoneís Commentaries on the Laws of England: "Introduction of the NATURE of LAWS in general. ß. 2. 2. IF words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point."

And the ONLY purpose anyone brought up FOR such an amendment was to protect the state militias from federal weakening or destruction by FAILING TO ARM them as the Constitution required! Claiming there WERE other reasons without citing any contemporary evidence of the urgent need to actually amend the Constitution is simple blatant assertion and hardly worth mentioning.

Now, BOTH terms "MILITIA" and "THE PEOPLE" are in the 2nd Amendment; some say that this means they are DISTINCT entities. On the contrary... the use of BOTH terms only confirms the meaning and purpose of the Amendment as being related to the military for the common defense!

Now, in 1789 the MILITIA and the PEOPLE were essentially the SAME CLASS! The militia was ONLY composed of free, white, property-owning adult males, drawn from "the body of THE PEOPLE," which was ALSO composed of the exact same FREEMEN!

The militia was "drawn from the body of the people" and was composed of the same FREEMEN as made up THE PEOPLE CLASS! Hence, when the FFs spoke of ONE they were in effect speaking of BOTH!

As Tench Coxe said:

"Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man gainst 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." -- Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

Coxe equates the militia with the hands of THE PEOPLE!

The "great body of the people, trained to arms," which IS the well-regulated militia. Anything else is a mob of insurrectionists.

Nor is the militia EVERY single individual, but it WAS the free white men Coxe was addressing! Basically, the same free white men who composed THE PEOPLE CLASS!

"Who are the militia? Are they not ourselves?" The "whole BODY of the people" is the militia part of the WHOLE people, which is the collective enfranchised body politic.

"Who are the militia? Are they not ourselves?"

Certainly NOT everyone! Only the "great body of the people, trained to arms," IS the well-regulated militia. And THE PEOPLE, from whom are DRAWN the militia, (the body OF the People), are NOT each and every individual, but is ONLY composed of the MEMBERS OF the enfranchised body politic in its collective and political capacity.

Yes, the enfranchised body politic, the free, white, property-owning, able-bodied males 17-45! The same class that could vote, serve in office and juries, and had a DUTY to serve in the militia. So, what does THAT have to do with an individual right to "own and carry a gun"? Itís about the makeup and democratic control of the stateís military function, period.

The militia was NEVER everybody. Who was the militia in 1790? Able-bodied, white, male, property-owners not in prison or feeble-minded, approx. 18-45. The SAME basic CLASS of persons who made up the enfranchised body politic that could vote and serve in office and in juries! So the WHOLE PEOPLE, as Adams and Madison meant it, was ONLY the enfranchised males, and THEY were the same basic class as were the militia! No blacks, no women, no children, no elderly, no cripples, no felons, no insane, no foreigners, no indians. In other words, WAY, WAY fewer than half the US population. And militia service was not just a right, but a DUTY, an obligation to enroll, muster, train, and register weapons each year, for a time specified, in a well regulated state militia. And the 1792 requirement to purchase and bring and register weapons and supplies was a TAX that many felt burdened them, but it was the price to pay to avoid a standing army, "the bane of liberty."

When George Mason said: "Who are the militia?... the whole people..." he meant they came from every class and background within the enfranchised body politic, rather than just being from one economic or social class, but he feared that may devolve in time.

The context of "who are the militia?" was the composition of the militia, not the personal rights of militia men. The universal military obligation which Mason had in mind was enforced in the Selective Service Acts of the twentieth century. Under the militia system exemptions were generously provided. Men with money could buy themselves out of their obligation or pay a substitute. The exemptions under the Selective Service Acts were much more stingy and much more strictly enforced.

Here, read the larger context:

Mr. GEORGE MASON. "Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty.

Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are.

But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered."

So MASON equates the militia with THE PEOPLE!

Oh, and one more, from Melancton Smith, the Federal Farmer:

"A militia, when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary."

So SMITH equates the militia with THE PEOPLE!

According to history professor Jack N. Rakove:

(http://www.saf.org/LawReviews/RakoveChicago.htm)

The issue, again, was a matter of allocating powers within a structure of federalism, not of defining private rights. Moreover, in discussing the advantages of a general militia over a select militia, the Farmer actually winds up arguing against the idea that the militia should consist of the entire population. His own idea, the Farmer writes, was that "the federal head may prescribe a general uniform plan, on which the respective states shall form and train the militia, appoint their officers and solely manage them, except when called into the service of the union." Such an "arrangement," he continues, places the sword in the hands of the solid interest of the community, and not in the hands of men destitute of property, of principle, or of attachment to the society and government, who often form the select corps of peace or ordinary establishments: by it, the militia are the people, immediately under the management of the state governments, but on a uniform federal plan...

In this analysis, it turns out, there are two kinds of select militia, neither of which comprises the whole body of the people. A nationally organized select militia would likely draw upon the worst elements of society, the dregs who formed the feared regular troops of European monarchies; while a state-based select militia (here equated with "the people") would consist of the solid citizens, to the exclusion of the same untrustworthy elements who could not be counted upon to maintain the social order. And in both cases, the Federal Farmer constructs his argument within a matrix of federalism; he never posits the distinction between government (whether national or state) and population on which the individual right interpretation relies.

Beyond illustrating the propensity of individual right writers to truncate quotations mercilessly, the consideration of these debates and texts demonstrates that the discussions of 1787-88 were preoccupied with the question of the militia, and that this question was addressed almost exclusively under the rubric of federalism. Whether there was, or should be, a private, constitutionally sanctioned right to own and use firearms was simply not at issue. The rhetoric of ratification certainly included many statements from both sides on the advantages of a well regulated militia as a valuable [Page 146] alternative to a standing army, but such statements did not require either side to reach the question of the nature and extent of the private rights of ownership and use, much less the question of the power of the states to legislate should the use of firearms prove inimical to the health and welfare of society.

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Professor Lawrence Cress notes in "An Armed Community: The Origins and Meaning of the Right to Bear Arms":

(http://www.potowmack.org/lcress.html; an excellent and thorough article that elaborates on and substantiates the themes of this essay.)

When discussions during the early national period turned to the preservation of liberty, then, classical assumptions about the citizenís responsibility to bear arms in the interest of the common good quickly came to the fore. "For a people who are free, and who mean to remain so," Jefferson reminded Congress in 1808 in language that summarized the republican principles embodied in the Second Amendment, "a well organized and armed militia is their best security." No one argued that the individual had a right to bear arms outside the ranks of the militia. To the contrary, bearing arms outside the framework of the established militia structure immediately provoked fears for the constitutional stability of the Republic. John Adams, who was as important to the Massachusetts Declaration of Rights as Mason was to Virginiaís, borrowed the style of the Quaker Stateís declaration when he drafted the Declaration of Rights that stood for ratification with the 1780 Massachusetts constitution. "The people," he wrote, "have a right to keep and to bear arms for the common defence." By "the people," John Adams meant the militia. "The public sword, without a hand to hold it, is but cold iron," he noted some years later, and "the hand which holds this sword is the militia of the nation."Ö The militiaman, "regulated by law," defended liberty; but individuals united under arms by the passions of the moment threatened the constitutional order and the freedom it preserved.

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Ad hoc groups of individual men, "carrying guns" outside a duly-constituted, well-regulated militia, was, to Adams, a quite serious threat to liberty and social order:

"It must be made a sacred maxim, that the militia obey the executive power, which represents the whole people in the execution of laws. To suppose arms in the hands of the citizens, to be used at individual discretion, except in private self defense, or by partial orders of towns, counties, or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man -- is a dissolution of the government. The fundamental law of the militia is, that it be created, directed, and commanded by the laws, and ever for the support of the laws." John Adams, A Defence of the Constitutions of Government of the United States of America, p. 474-5 (1787-88).

Thus, to claim that EVERYONE is "in" the Militia, and hence has a need and RIGHT to any weapon one chooses, and that the Militia is just a EVERYONE coming together with their guns at their own whim and discretion, and for their own ad hoc purposes, is the antithesis of what the 2nd Amen AND the leaders of the day were saying!