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The Constitution and the Second Amendment

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The following is Chapter 2 from FFF’s new ebook Freedom and Security: The Second Amendment and the Right to Keep and Bear Arms by Scott McPherson.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness — That to secure these rights, Governments are instituted.… — Declaration of Independence, 1776

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. — U.S. Constitution, Amendment II

Late in the spring of 1787 delegates from eleven states gathered in Philadelphia to attend a constituent convention, to reform the Articles of Confederation, the closest thing to a unifying government between the several states during and after the American Revolution. Before summer’s end, however, they had drafted a new Constitution that, once adopted, would significantly alter the relationship between citizens and their government. When ratified by the people of New Hampshire in June 1788, it became “the law of the land.”

The Constitution was a unique document. From time immemorial, individuals were considered subjects, their interests, when considered, tied to service of the elite and the state. Americans of the Revolutionary Era saw themselves instead as the great inheritors of English liberty, which celebrated the rights of individuals to property and contract, and a large measure of political freedom. As Robert Higgs rightly notes, “[ government] in the United States was founded on an explicit recognition of rights — natural, inalienable rights of each individual — and governments were understood to be legitimate only insofar as they acted to protect those rights.”

But Great Britain had no written constitution; government followed a combination of statute, judicial precedent, and the common law. It could too easily be corrupted by enterprising politicians; it was that corrupt government, after all, that Americans had cast aside by force of arms. Americans determined to rectify that deficiency with a written contract between citizen and government.

Along with the US Constitution, a radical idea was born: that government would be legally limited in its scope, its powers strictly defined. Those powers, it was believed, were necessary to secure the “national interests,” as Alexander Hamilton put it in Federalist No. 23, delegated to the central government for “their proper and efficient management,” and listed in Article 1, Section 8 of the Constitution.

Yet all other authority would remain with the states and, more important, the individual citizen. No less an authority on this subject than James Madison, considered a “father of the Constitution,” can be cited here. He wrote that the federal government’s powers are “few and defined.” George Washington, who presided over the Constitutional Convention, wrote to his old friend Lafayette, “The people evidently retained every thing which they did not in express terms give up.” Jackson Pemberton writes that it was “determined to form a government which would at once be able to discharge its necessary functions, but which, even under the hands of ambitious and self-seeking men, would be virtually unable to encroach upon the native rights of the citizens.”

Still, Americans of that time could be described as “anti-government extremists” today — they did not trust any government, even one of strictly delegated powers. Political parties were in their infancy; playing citizens against one another was largely the craft of a later time, and many people saw meddling government as the true danger. Not just the rich, but the lowest ranks of free citizens in the United States enjoyed more personal liberty, and in time would have a higher standard of living, than perhaps any other people in the history of the world. There was real fear that the new federal government would swallow up the state governments and become a genuine threat to individual liberty.

Equally troubling, the power to raise and maintain an army in the United States would give the new central government an ample force at its disposal, possibly for just those purposes. For many Americans, the memory of an army garrisoned among the people, and later occupying parts of the country, remained fresh in their minds. In its dissent, published in a Philadelphia newspaper in December 1787, the minority of the Pennsylvania Ratifying Convention warned,

A standing army … may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.

Even among the “Federalists” — those inclined to favor a strong central government — there was sincere concern about a standing army. James Madison, in Federalist No. 41, conceded,

A standing force … is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale, it has its inconveniences. On an extensive scale, its consequences may be fatal. On any scale, it is an object of laudable circumspection and precaution.

Whether their concerns centered around a standing army, or the prospect of too much power being vested in the new central government, or the worrisome implications of marrying both, many Americans greeted ratification of the Constitution with a sense of foreboding. They wanted the “law of the land” to include a Bill of Rights.

The Bill of Rights

The idea of adding a Bill of Rights to the U.S. Constitution was hotly debated. Generally speaking, Anti-Federalists, those who had argued against ratification of the Constitution, wanted a written guarantee that key rights would be safe from an overzealous federal government, and in state ratifying conventions they were able to extract from the majority assurances that amendments would immediately be offered to safeguard those liberties. Federalists, on the other hand, were opposed to the idea.

It is interesting to note that even among critics of the proposal, there was no hostility to individual rights in theory. On the contrary, desire for a limited government was universal. Federalists feared (and, in time, were somewhat vindicated for asserting) that by listing certain rights in the Constitution, it could well come to pass that only those rights would be regarded.

The Federalists believed that a bill of rights was unnecessary because the structure of the national government adequately protected the rights of the people. Their structural argument was premised on the notion that the national government would be one of enumerated, and therefore limited, powers. The people were protected by virtue of the fact that the federal government in most cases would lack the power to act in a manner which might affect their civil liberties.

Alexander Hamilton, the quintessential Federalist, asked, “[ Why] declare that things shall not be done, which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

As promised, however, when the First Congress convened in New York City on March 4, 1789, James Madison, now a Representative from Virginia, introduced thirty-nine amendments to the Constitution which were condensed into twelve proposed amendments, and submitted to the states for their approval. Ten received the required support, and became the first Ten Amendments to the Constitution on December 15, 1791 — the Bill of Rights.

Future of Freedom Foundation president Jacob Hornberger has rightly pointed out that this title is a misnomer; it is really a bill of prohibitions. “The people who crafted the Bill of Rights were careful to make certain that the language prohibited the federal government from infringing upon preexisting rights,” he writes. This is integral to the very notion of a free citizen: Americans took their freedoms for granted, and they were to be enjoyed without qualification. Among them are the right to speak and publish without fear of prosecution, to a trial by jury, to free association, and to security against unwarranted search and seizure and “cruel and unusual punishments,” and to safety from self-incrimination. It was no surprise that the “law of the land” now also provided that “the right of the people to keep and bear arms shall not be infringed.”

The Second Amendment

Only in the latter half of the twentieth century did any confusion arise over the meaning of the Second Amendment to the US Constitution, and then only by anti-gun zealots who claimed that the right protected was state governments’ “right” to have militias. During the ratification debates, and subsequent discussions in the press about the amendments proposed as a bill of rights, it was normal to speak of the “right to keep and bear arms” as an individual right, enjoyed by all free citizens.

The militia itself was understood as comprising “the whole people” or “the people themselves,” as George Mason and Richard Henry Lee both stated. Patrick Henry said, “The great object is, that every man be armed… Everyone who is able may own a gun.” In his defense of the Constitution, the Pennsylvanian Tench Coxe, a Federalist and friend of James Madison wrote, “Their swords, and every other terrible implement of the soldier, are the birth-right of an American.” By denying the federal government the power to disarm anyone, the militia — the whole people in arms, prepared to defend hearth and home — would remain the best “security of a free State.”

After James Madison proposed his list of amendments to the House of Representatives on June 8, 1789, no one, least of all Madison himself, doubted that the rights to be expressly protected were of a personal nature. Representative Fisher Ames of Massachusetts wrote just four days later, “The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.” Sen. William Grayson wrote to his fellow Virginian Patrick Henry that “a string of amendments were presented to the lower House; these altogether respected personal liberty.” Coxe wrote an article in Philadelphia’s Federal Gazette detailing the proposed amendments’ meanings, citing the text that would eventually become the Second Amendment as a protection of the people’s “private arms.” If anyone disagreed that every free citizen had the right to keep and bear arms, no records exist of a public objection.

Furthermore, when New Hampshire ratified the US Constitution in June 1788, its convention delegates recommended that an amendment be added promising that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.” The ratifying conventions of New York, Virginia, Pennsylvania, Rhode Island, and North Carolina all concurred, with similar recommendations of their own.

Far from believing that the right to arms was confined to official service in a state militia, American statesmen at that time were careful to guard against the creation of a “select,” as opposed to a general, militia. If, they warned, a small percentage of the population could instead be designated “the militia,” then under Congress’s Article 1, Section 8 power to call forth, organize, arm, train, and discipline the militia, the remainder of the citizenry might well find themselves disarmed. In a series of letters opposing ratification of the Constitution, an anonymous writer, known as the “Federal Farmer,” but probably Richard Henry Lee of Virginia, or possibly Melancton Smith of New York, feared that a nation of armed yeoman could be neutered within a generation:

This may be done in a great measure by congress, if disposed to do it, by modelling the militia. Should one fifth, or one eighth part of the men capable of bearing arms, be made a select militia … and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless.

Alexander Hamilton most certainly did not see active service in the militia as prerequisite for gun ownership, as he made clear in Federalist No. 29. John Smilie, speaking in the Pennsylvania Ratifying Convention in 1787, cautioned, “When a select militia is formed; the people in general may be disarmed.” In other words, regardless of any intentions of a future Congress, or would-be king, concerning the formal construction of the militia, the right of individuals to own firearms was a fundamental American right, to be jealously guarded. The Second Amendment provided the necessary protection.

 

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