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The Second Amendment Protects an Individual Right


THERE IS A popular misconception that the Second Amendment to the U.S. Constitution refers to a collective right rather than an individual right. Both history and reason argue against this misinterpretation.

The right to self- (and collective) defense does not originate with, nor is it dependent upon, the Second Amendment. Man has natural, unalienable rights. Among these are the rights to life, liberty, and property. If he possesses these rights, then he must also possess a right to defend them. If he has a right to defend them, then he has a right to the means with which to defend them.

As the Supreme Court ruled in Miranda v. Arizona (1966): “Where rights secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them.” Thus, the exercise of rights may not be regulated or taxed. Thomas Jefferson called this a self-evident truth.

It should also be self-evident that collectives, as artificial entities, have no rights; only natural persons do. The term “states’ rights” is, therefore, a misnomer. Collectives may only exercise powers, and no more powers than the individuals who compose them possess, because the source of their power is the individual.

Article I, Section 2, of the Texas Constitution, for example, makes this clear when it states that “all political power is inherent in the people, and all free governments are founded on their authority.”

Author Phil Koehne pointed out in his book The Cult of Legislation (Publishing Packagers Corp., 1991) that the early Roman Republic was guided by the principle that “no one can transfer to another more authority than he himself has.” (“Nemo plus juris ad alium transferre potest quam ipse haberet.”)

Since none of us has the authority under the “Laws of Nature and of Nature’s God” (Declaration of Independence) to disarm our neighbors except in self-defense, it stands to reason that the collective has no such authority either.

To argue that a collective may exercise a power which an individual may not, or which an individual does not possess, is, therefore, absurd.

A collective-rights interpretation of the Second Amendment ignores the clear language of the Constitution. We are reminded in the Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

What people? The same ones mentioned in the First, Fourth, and Tenth Amendments. It says nothing about states. Furthermore, the Tenth Amendment tells us, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

There is a clear differentiation between the powers of the states and those of the people. If the drafters of the Second Amendment had wanted to convey a collective power, the Second Amendment would say that the right of the states to keep and bear arms was not to be infringed.

The Tenth Amendment says several things. It says that the federal government may exercise only powers specifically delegated. Article I, Section 8, lists the delegated powers. Nowhere among them is the power to regulate private arms. This amendment also tells us that the states have relinquished certain powers.

Among the relinquished powers listed in Article I, Section 10, is the prohibition against keeping “Troops, or Ships of War in time of Peace” without the consent of the Congress. If that’s true, then what is the militia and what does the Second Amendment mean?

The militia is an armed citizenry. A well-regulated militia is one that is properly trained in the weapons and tactics of the day. The Founders were fearful of standing armies at both the federal and state levels. The Second Amendment encouraged them to depend on the militia and to ensure that its members were armed and trained to a common standard.

By tying the militia to the security of a “free state,” they indicated that its purpose was to ensure not only the integrity of the state but the freedom of its inhabitants as well. It was to be a counterforce to the threat of government tyranny. To argue, then, that the institutions that the militia was designed to keep honest may disarm or limit the militia is preposterous.

Gun-control advocates occasionally quote Alexander Hamilton as saying that the militia “ought certainly to be under the regulation and at the disposal” of the national government. Article I, Section 8, of the Constitution delegates to Congress the power

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress

But giving Congress the authority to call upon the militia and to train it to a common standard doesn’t give it the authority to restrict the right of individuals to keep and bear arms. It was Alexander Hamilton who also wrote in Federalist No. 29

But if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights….

The collective-rights interpretation also ignores history. George Mason, a delegate to the Constitutional Convention commented, “I ask, sir, what is the militia? It is the whole people except for a few public officials.” Trench Coxe, Pennsylvania delegate to the earlier Annapolis convention, wrote:

Who are the militia? are they not ourselves…. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American…. The 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.

Noah Webster, compiler of the famous dictionary, remarked:

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. 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.

Elbridge Gerry, delegate to the Constitutional Convention from Massachusetts, asked:

What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty…. Whenever Government 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.

William Rawle, an early commentator on the Second Amendment, wrote in 1829:

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

The Second Amendment means, then, that since an armed citizenry trained to a common standard and discipline is necessary to the security of a free state, the right of individuals to keep and bear arms shall not be infringed. The Founders were so adamant about protecting the right of every individual to keep and bear arms, they prohibited even trespassing upon the fringes or outer edges of that right.

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    Benedict LaRosa is a historian and writer with undergraduate and graduate degrees in history from the U.S. Air Force Academy and Duke University, respectively.