TRANSLATING  THE SECOND AMENDMENT
"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."

To a certain segment of the community the above words are part of the gospel of liberty, to other segments they are an 18th century anachronism deserving little attention and no protection. The truth of what the words mean is not to be found in today’s rhetoric, though we often attempt to argue these issues in 20th century terms or with 20th century viewpoints. Such an approach is erroneous as it subjects the words, and issues those words illuminate, to the gross misinterpretations of an evolving language.

This view is not new, as even the framers understood that future generations would apply their own "spin" to the Constitution and to the powers and rights it contained. If this propensity for re-definition was recognized by the people intimately involved in the creation of this nation and it’s constitution then we are bound to heed their warning and avoid the pitfalls they foresaw.

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed" -Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p322.

So the debates of 2nd Amendment rights should, and must, be framed in the terms in common use at the time of it’s writing. What the "militia" may be today is less relevant to the debate than what it was to the framers of the Constitution. What "well regulated" meant should be what it meant in 1797, not what it may have come to mean in 1997 usage. Who "the people" are may or not be a constant and the key to understanding what they are is to understand who or what they were to the founders.

Lastly we need to look at the historical context by which these men, then recently former Englishmen, arrived at the conclusions they did regarding arms, power, control, rights of men, and the powers of the state. The rights and powers of the Constitution did not form in a vacuum, but are a reflection of the experiences of the men who wrote it. Experiences obtained from their own lives, and from an insightful examination and understanding of their history and heritage as "Englishmen."

Looking at the 2nd Amendment we find key terms that need 18th century definition contemporary to the people who wrote it. Terms that frequently appear in the debate and include: "well regulated," "militia," "the people," "right" "keep and bear," "arms" and "infringed."

We begin with "well regulated."

Today "well regulated" in the minds of many would be synonymous with "controlled by legislation" or "controlled by government." This is the first and most glaring illustration of my point that terms must be understood in the language of the times. In 1797 "well regulated" would not be "controlled by laws" but would rather be defined as "properly functioning." Musical instruments were "regulated" when they were in proper tune, and a "regulated" clock was one that kept the correct time: items that were functioning at the optimal designed efficiency, and in a uniformly identical manner, not simply items that were subjected to governmental edict.

At the Battle of Bunker Hill in June 1775 the Americans had only been pushed out of the earthwork by British bayonets after having run out of gunpowder and not having bayonets of their own. The United States Congress in the first Militia Act required all militia members to have certain military equipment: to include a bayonet.  So another meaning of "well regulated" in 18th century terms when talking about a group being "well regulated" could also mean "uniformly equipped."

In the debates on the proposed Constitution there a many references to "well regulated" and these references are directed at having the individual states militia's uniformly equipped, properly drilled or functioning.  It would not have made much sense to have 13 states militia's, which were to serve as the bulk of the military land force of the nation, made up of a hodgepodge of dissimilarly equipped or trained units. 

A "well regulated" militia, to the framers would be a "properly functioning" militia or "uniformly, equipped and operating militia." This then is more an adherence to an operational or philosophical ideal, rather than a web of legislative or legal restraints.

Who or what is "a militia?"

"A militia, when properly formed, are in fact the people themselves... and include all men capable of bearing arms."-Richard Lee, Additional Letters from the Federal Farmer, (1788

"I ask, sir, what is the militia? It is the whole people, except a few public officials."-George Mason

In English history the militia stems from the Saxon "fyrd" or a universal levy of the citizens into a military force for defense of the realm. The Saxon army of King Harold, defeated at the Battle of Hastings by the invading French army of William the Conqueror of Normandy, was mostly "the fyrd" with a core of Harold's "housecarls" or his personal bodyguard: professional troops in his paid, permanent service. This universal levy continued through most of English history with the individual citizen being required to keep and practice with arms "suitable to his station" at his own expense. The vigor of it’s existence depended more on the external threats to the realm and the internal security concerns of the crown, but ebb and flow it continued until well into the American experience and beyond. The United States laws on the militia required, not just permitted, the citizen to keep arms for militia service until the 1920’s when the arms keeping requirement was dropped.

For most 18th century Americans the Militia would not be the National Guard, which actually didn’t come into existence in it's modern form until after World War I, as such an organization would be viewed as a select militia. Militias in the framer's terms would be one of two forms a "select militia" or a "yeomanry militia." 

The "select" type is a militia literally made up of only certain selected members of the society.  Historically this allowed the exclusion of persons out of favor with the crown, and was used as a tool to deny arms and thus power to the opposition. When Protestants were in power the right to arms, and membership in the militia, was limited to "good Protestants:" with the Catholics returning the favor when they held the crown and the power. The "lawless and wild" Scots and Irish were denied arms on a routine basis: usually from their propensity to "revolt" and assert their legitimate nationalistic goals. Needless to say being able to pick your militia members, and choose who could and could not possess arms, had a great effect on the ability to project power or impose your will on those denied both arms and power.

On the other hand a "yeomanry" or universal militia is one made up of the entire populace and the individual politics aren’t considered. Everyone is in the militia under this model, everyone is a citizen-soldier, and early Americans saw the Swiss model of universal membership as the ideal. Much, if not most, contemporary thought held a select militia little different than a standing army. And certainly the framers for the large part agreed:

"This may be done in a great measure by congress; if disposed to do it, by modeling the militia. Should one-fifth or one-eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, 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." --Richard Henry Lee, Letters from the Federal Farmer (1787-1788), [emphasis mine]

In fact the concern of many of the framers centered on two issues when the matter of military land forces was considered. First was whether this nation was to have a "standing army" at all.  Second was the nature and format of the nation's Militia. 

Under the constitution Congress may "establish and maintain a Navy" and it may "raise and support Armies" but the life of that army is limited to a two-year budget appropriation. The framers feared the power of the standing army, as they had feared the Kings standing army, and as their ancestors had been oppressed by the Kings standing armies. Madison and Hamilton argued in no less than two Federalist Papers (#29 and #46), --a collection of essays explaining, justifying and promoting the proposed new Federal Constitution-- in support of a standing army for the new nation and used the universality and power of the larger "militia" as a counterweight to the danger that a standing army might present.

"....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 own rights and those of their fellow citizens. Where in the name of common sense are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow citizens?" Alexander Hamilton, The Federalist Papers (No 29)

"Let a regular army, fully equal to the resources of the country, be formed... [formula of 1/100 of the eligible population deleted]… of twenty-five or thirty thousand men. To these would be opposed a militia amounting to near a half a million citizens with arms in their hands. "-James Madison, Federalist Papers (No. 46) [emphasis mine]

In Madison’s eyes his army of 30,000 raised by the United States, and its potential for use in oppression by the new central government, would be easily outnumbered, and outgunned, by the militia of 500,000 men. In 1797 that was the entire male population of militia eligible age. Extrapolating the same ratio to the modern U.S. military, numbering at it’s peak 3 million men, then the modern militia would number 50,000,000! Far larger than the National Guard, and certainly indicative of the universality of the framers "militia."

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in 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." -Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787) [emphasis mine]

"The people" and the significance of the term:

Some argue that the 2nd Amendment isn’t about an individual right but rather is a collective one giving power to the states to keep their National Guard. When written and adopted the framers chose the term the "right of the people" when describing whose "right to keep and bear arms shall not be infringed." They did not say "the states" right or "the militia’s" right, but the "right of the people." If they were speaking of a State, then they would have referred to a power and not rights for "rights" were generally only applied to people and not governments. Clearly if they intended to protect the individual states authority then they would have stated that it was the "power of the state to keep a militia;" or "the power of the state to keep and bear arms." If referring to only the actual militia members in a select militia model then the language might have been "the right of the militia to keep and bear arms. Certainly that language would argue FOR the collective or selective application of the right. But that is not the language they chose.

The States are specifically forbidden in the Constitution from "keeping troops or ships of war" in times of peace. A standing organization like the National Guard stretches that constitutional provision to it’s limits. If the National Guard are considered "troops" then the state cannot keep them except in times of war.. This has ramifications in the nature of the Guard, and it’s relationship to being militia. Certainly if they are considered a part of the regular "army" or military establishment [Perpich v. Department of Defense, 1990, L Ed 2d 312] then they are certainly "troops" and cannot be kept by the States; and are then most assuredly NOT the constitutional militia, and cannot be the people referred to in the 2nd Amendment.

The group selected to have the right to arms protected was "the people."  Not the states.  Not a militia. Not troops.  But the people, the body of the populace of the United States.  The same universal body politic that sanctions the Constitution itself with the words "We the People of the United States."

The use of a term in the constitution should mean the same throughout the document. So if "the people" is somehow a collective empowerment in the 2nd Amendment, it would make the other uses of the same term ambiguous in the other Bill of Rights provisions where it is found and individually applied.. A collective right interpretation over an individual right interpretation leaves other uses and interpretations of "the people" as individual rights at risk. If right of the people in the 2nd Amendment isn’t an individual right, then what of the 1st, 4th, 9th, and 10th Amendments and their use of the same "the people" term? Is there then no individual right to free speech, to assemble, to worship, and be free from unwarranted search and seizures? Can a right of "the people" be an individual right in those others, but some form of collective right in the 2nd amendment and then ONLY in the 2nd? Common sense alone would say otherwise.

And in the 10th Amendment, the reserved powers clause, we find that "the States" and "the people" are both mentioned as clearly separate entities leaving the interpretation that they are somehow synonymous more than suspect.

It’s not about the right to arm bears!

It’s about the right to keep and bear arms. From the present back to our ex-English founders,  back through the age of enlightenment and even back into antiquity itself the right to arms for personal and collective defense seemed inviolable: unless you were a tyrant attempting and intending to oppress. For the founding fathers "self-defense" included defense against tyranny, otherwise the whole rationale justifying our separation from Britain by force of arms is invalid. Remember everything the British did in 1772-1789 was legal under British law.  We colonists were the law-breakers and traitors. Let's do that again!   We cannot claim a sacred status for our own American Revolution unless we accept the basic concept that people have a right to resist the unlawful, immoral or oppressive acts of their own government with armed force.

To "keep and bear" actually encompasses two rights concerning arms, the first "to keep" and the second 'bear."  The "keeping" clearly cannot be defined by other than a individual right: "the people" may "keep" arms. Other provisions of the constitution clearly allow the states to keep both troops and ships of war in times of war so the states rights/powers are already assured that authority and the Second Amendment saying it once again would be superfluous and redundant. The only possible interpretation is to prevent Congress --the new central government-- from disarming the people and thus the militia, which federalist and anti-federalist alike universally viewed as the ultimate barrier to government misconduct. The States power to "keep" was already in the Constitution before the addition of the bill of rights, it was the issue of the peoples right to arms that required re-affirmation by amendment before key states, such as Virginia, would agree to ratify the Constitution.

The second part 'bear" is the assurance that all citizens are equally enfranchised as part of the militia: that universal body of armed citizens. The British historical experience was that the crown --the central government-- had a tendency to use "select militias" to bar members of opposition factions the right to either keep or bear arms. Arms equals Power. The power to intimidate, the power to oppress. Let us postulate we have two groups the "Blues" and the "Greens." If only the chosen select militia members may "keep and bear arms" then if  the Blues controlled the government, Blues controlled the Army, and Blues were the only ones permitted to be militia, then the Greens were effectively rendered powerless and subject to the will of the Blues. This bearing provision was handled by making everyone, except certain specified officers of the government, part of the Militia of the United States. Both Blues and Greens have a right to arms: neither can assert armed supremacy over the equally armed other. 

Only in the last couple decades has that right been severely challenged, and of late largely by the nation that prides itself on it’s adherence to individual freedoms. Prior to 1934 there was absolutely no Federal gun control, not a single statute. Since then there has been a steadily increasing torrent of Federal restrictions, that in the minds of many are flagrant and blatant violations of the right to arms. As violations of the right to arms, they are also gross violations of the Constitution. More and more constitutional scholars are discovering the seemingly lost 2nd Amendment and are decrying the unforgivable lack of legal protection of this right from the nations courts.

"The Supreme Court has almost shamelessly refused to discuss the issue. [the Second Amendment]...." -- Sanford Levinson, The Embarrassing Second Amendment, Yale Law Review, 1989.

What part of "shall not be infringed" do you not understand?

Looked up ‘infringed’ in a good dictionary lately? An ‘infringement’ is any trespass or encroachment, however slight, "especially on a right." The language "shall not be infringed" means the right may not in any way be trespassed upon, encroached, weakened, impaired, invalidated, mitigated, or restricted. And note that while the 1st Amendment restricts the federal legislature with the phraseology "Congress shall make no law," that there is no such qualifier in the 2nd. This arguably suggests that no entity, not Congress, not the President, the Courts, perhaps not even the States, may "infringe" on the right. Any trespass would be a violation; so a strict interpretation of the right should render all Federal gun control invalid, and by incorporationist doctrine, to the states as well.

"Incorporation" is the process of applying the Federal bill of rights as a controlling factor over the states.  When initially conceived the Bill of Rights only applied to the Federal governments powers and only relatively recently were these rights applied to the states. Before that states were free to do any of the proscribed acts subject only to their individual constitutions, laws, and legislatures. The "incorporation" doctrine protects individual rights from the states power by application of Federal Constitutional guarantees, as is done for the "politically correct" and acceptable rights found in the other 9 of the first 10 amendments. Rights that we value so highly such as the right to petition; to assemble; to have freedom of religion; freedom from unreasonable search and seizure; freedom against self-incrimination.  All these fabulous rights we cherish, defend,  and that we require the Federal and state governments to respect, we support until it comes to the right to arms in the 2nd Amendment. Then suddenly semantic and definitional barriers are erected to avoid the protection of this, perhaps most critical, individual right!

Better Red than dead?

"Thus, after over three centuries, the right to bear arms is becoming anachronistic. As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant; and as the society itself becomes more complex, the military power in the hands of the government more powerful, and the government itself more responsive, the right to bear arms becomes more futile, meaningless and dangerous." -John Levin, "The Right To Bear Arms: The Development Of The American Experience", Chicago-Kent Law Review, Fall-Winter 1971.

Some as you see will argue that even IF my interpretation is correct, that it’s no longer valid as the reasons for having these arms is gone. That any modern army could easily defeat a citizen force possessing only small arms. Perhaps. And it certainly it becomes more "true" with each additional restriction on the type of arms citizens may or may not possess! Well, shame on us then! For if this is true it seems the fear of the anti-federalist faction voicing opposition to the Constitution's powerful central government was right: A standing army then is indeed dangerous to the liberty of a nation and is, in fact, raised on the ruins of the militia.

"What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.... Whenever Governments 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." – Elbridge Gerry of Massachusetts, during floor debate over the Second Amendment, I Annals of Congress, at 750, August 17, 1789

As we allegedly cannot defeat a modern army with our private arms should tyranny occur should we meekly submit to oppression? The assertion that "it can’t happen here" is false.  How about black slavery? Racial discrimination and lynching? How about the forced  "internment" of American citizens of Japanese ancestry during WW2 without trial, or due process? Our  government forcibly confiscated their property and locked them up in "detention centers" all with the approval of the courts, congress, and the executive!  It HAS happened here. Which clearly disproves the "can't happen" assertion, and indicates that it could happen on a greater, far more oppressive, scale at some future point in time if the conditions are right.

In a real world perspective the value of individual armed resistance to modern armies is not an invalid concept.  There are many examples of such resistance succeeding, or at least maintaining pressure, against their modern and better equipped foe. Witness the IRA in the formation of the Irish Republic, or the IRA in Northern Ireland today, are these not successful resistance to real or perceived injustice and oppression by much better armed foe?  What of the American experience in Vietnam?  The Philippines against Marcos?  The Indonesians against Suharto?  

And even if resistance were futile, or doomed to be ultimately unsuccessful, should we not even try?  How much less successful will that effort be if it starts from a point of total civil disarmament?   Certainly the students in Tiananmen Square discovered that unarmed resistance to an armed tyrant is of questionable efficacy.  The point of the 2nd Amendment is to ensure that our citizens never start from that same unarmed condition should we as a people have to rise against tyranny.

"If you will not fight for right when you can easily win without bloodshed; if you will not fight when your victory will be sure and not too costly; you may come to the moment when you will have to fight with all the odds against you and only a precarious chance of survival. There may be even a worse case.  You may have to fight when there is no hope of victory, because it is better to perish than live as slaves."  [emphasis mine] - Winston Churchill  

That said, and even discarding  such resistance as futile what of personal self defense from criminals?  Do we not have an inherent right to self-defense from unlawful criminal attack? 

"A covenant not to defend myself from force by force, is always void... For the right men have by Nature to protect themselves, when none else can protect them, can by no covenant be relinquished." -Thomas Hobbes, 'Leviathan'

Levin and his ilk are way off base if they think the police can or will save them from criminal predation. Already the courts have ruled that police protection is to the community as a whole and no guarantee of individual protection is provided. Those rulings leave personal self-protection as an individual responsibility. You are on your own, but Levin and the other destroyers of the 2nd Amendment civil right would destroy your access to the means of affecting that defense in their hatred of firearms and their zeal to eviscerate the right to arms. Sarah Brady and HCI have no reservations in ultimately having only the police and the military to possess firearms, leaving you and I subject to the vagaries of a "police protection" that cannot be required to "protect;" nor be held accountable when it fails.

To the framers self-defense was so basic and well accepted a concept as to never be a matter in question: it was a given that free men had a right of self-defense and for arms to achieve that. The second amendment is just as much a resource for individual self-protection as it is a resource for protecting the militia, and the nation.

So in the end, what does the 2nd Amendment translate as?

A properly equipped, and functioning militia, made up of the body of the people with arms in their hands, being the best defense of a free nation and of the individually sovereign States; the right of the people of that nation to keep and bear their individual arms shall not be trespassed, encroached upon, weakened, impaired, invalidated or mitigated.

Madison and Jefferson, both Virginians, had a real impact on the Constitution of their home state.  Perhaps the most indicative passage of what they intended can be found in Virginia's own protections of the Right to Arms.

VIRGINIA STATE CONSTITUTION

Article 1, Section 13.

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

If the men who created the 2nd Amendment to the federal constitution also wrote the above, then who can doubt that the militia was all the citizens, and that the right to arms was indeed individual.

The bottom line.....

In ignoring the 2nd Amendment, and in failing to protect and defend that right, we may be setting the stage for the violation of all our other rights as well.

The only protection of every citizen from such deprivation of rights is a strict adherence to the Bill of Rights by everyone for everyone. This should be self-evident but the danger of erosion of rights stems largely from the fact that so many citizens of the majority, who have never been deprived of any of these rights, find it difficult to understand what the deprivation of them means in the lives of others."     Earl Warren, "A Republic, If You Can Keep It"

It seems pretty clear to me that the right is individual and clearly protected. If the right is no longer applicable, if indeed it has become an anachronism, then the intellectually honest solution is to debate, and propose a repeal of that right via the provided amendment process. Not to simply ignore or redefine the right out of existence, because "we do not like guns."  For in doing so a precedent is set to treat any other right in a similar manner; subjecting each right in it's turn to re-definition, semantic games and ultimately to irrelevance. Ignoring any right becomes a slippery slope of untold danger to all our rights and to our very liberty.

In 1919 a Federal prohibition on alcohol manufacture, possession, transportation or consumption required a Constitutional Amendment to enact.

Think about that for just a moment.

At the start of this century the people and the Congress understood that the Federal government could not ban a substance, alcohol, unless they changed the Constitution to empower it to do so: and alcohol isn’t a specifically protected Constitutional right! A little over a decade later it took another Constitutional amendment to repeal the earlier ban.

In 1934 when the Congress enacted the first Federal gun control it was on machineguns and they did so not with a ban, but with a taxation measure. They understood that they did not have the authority to ban the machineguns any more than they could ban alcoholic beverages in 1919 without changing the Constitution. Instead the Congress used the interstate commerce clause and taxation power ($200 per machinegun-- a lot of money in 1934) as a means of restricting their use; thereby avoiding the need to go through the constitutional amendment and ratification process.

As late as 1968 the Congress still cited in preambles to any legislation the constitutional empowerment that allowed them to enact the legislation; now they no longer bother.  They legislate on whatever issue, or in any area they please, and any constitutional authorization or empowerment, or a lack thereof,  is apparently irrelevant.

Today the Federal government via bureaucratic "rule making," or even the President by Executive Order (without consulting Congress) bans items, enacts restrictions on conduct, or controls items, outside Constitutionally granted powers. Many of these acts infringe on the right to arms, or other rights, and is conduct that 50 years ago would be unconscionable. But there is more significance in the mindset than the method. There is a greater danger and trap in the process that is increasingly eroding all our rights and turning the Federal government into the overbearing, overpowering, and omnipresent colossus that the framers feared. 

There is much more at risk than simply the right to arms.


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   Last updated: 09/21/2013 09:35:36              Copyright 1998 William L. Liddell