Two weeks ago, we looked at the Second Amendment and determined that it prohibited any federal infringement on the right to keep and bear arms, and that the prohibition even includes restrictions imposed while exercising legitimate federal power.
“A well regulated Militia, being necessary to the security of a free State…”
Many modern legal scholars and political pundits claim that the opening clause of the Second Amendment limits the right to keep and bear arms to those serving in the militia – or the National Guard as we call it today. But rules of construction don’t support this reading. The opening clause serves as a sort of introduction, telling us the “why” behind the “what.” It provides context for the amendment, but it does not define its scope. The second clause of the amendment defines whom the protection from infringement applies to – “the right of the people…”
All of them, not just a select few.
The right to keep and bear arms flows from an even deeper philosophical spring – the natural right of self-defense. In his paper, The History of the Second Amendment, legal scholar David Vandercoy traced the right back to Blackstone and English common law.
Blackstone described the right to keep arms as absolute or belonging to the individual, but ascribed both public and private purposes to the right. The public purpose was resistance to restrain the violence of oppression; the private was self-preservation. Blackstone described this right as necessary to secure the actual enjoyment of other rights which would otherwise be in vain if protected only by the dead letter of the laws.
That said, the existence, preservation and autonomy of the militia was intimately tied to the Second Amendment, and was the driving force behind its inclusion in the Bill of Rights. It was not only intended to preserve an individual right to keep and bear arms, but also to limit government power. It was understood that an armed populace would serve as a check against government encroachments on liberty.
Those who try to make this case today often get labeled as dangerous, paranoid extremists. But what we call an “extreme” position today was conventional wisdom in the founding era.
Consider the words of Noah Webster in An Examination into the Leading Principles of the Federal Constitution.
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. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
During the ratification era, many feared the federal government would gain control of the state militias, and eventually disband them and replace them with a standing army. The viewed this as a direct threat to liberty itself. During the Virginia ratifying convention, George Mason made an impassioned plea to ensure preservation of the militia, as recorded in the notes of the debates.
Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, (Sir William Keith) who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia.
This raises an interesting question: what exactly was the militia in the founding era? Was it a select group of people?
In fact, the militia was made up of all able-bodied men, generally between the ages of about 14 and 65. Mason referred to it as “the whole people” as he lobbied for what was to become the Second Amendment.
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…
Rob Natelson sums up the scope of the Second Amendment in The Original Constitution: What it Actually Said and Meant.
The Second Amendment served purposes besides buttressing the natural right of self-defense and the reserved power of armed resistance. By guaranteeing continuation of the state militias, it strengthened state power in the state-federal balance – even though state militias could be called into federal service. By protecting the militia, the amendment promoted citizen involvement in government military affairs, just as the jury system promoted citizen involvement in judicial affairs. Likewise, by protecting the militia, the Second Amendment reduced the need for federal standing armies.
Next week we will look at the Fourth Amendment.