Home

Madison

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Constitution

Amendment II

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.

There was a time, when I accepted the interpretation of the Constitution that the 2nd Amendment applied to the regulation of the militia and that the permissibility of individuals owning firearms was not an absolute guarantee.  However, upon reading the original language, which the author of the Bill of Rights, James Madison proposed, it is clear that his intention was the individual right to keep and bear arms was not to be infringed.  In his original wording, the first independent clause states “the right of the people to keep and bear arms shall not be infringed;” it ends with a semi-colon, which according to common English grammar usage is, “to connect two independent clauses, Independent clauses are series of words that could stand alone as complete sentences.”  It should be noted that in the Second Amendment, rather than using semi-colons the Congress choose to rewrite and shorten Madison’s original wording and to use commas.

The second independent clause states that a “well armed and well regulated militia being the best security of a free country.” This clause adds clarity that to be effective the militia must be not only regulated but also well armed, as it was a check on government at all levels.

The third clause, I believe, is the most important, and the one excluded entirely from the amendment sent to the States by Congress, states “but no person religiously scrupulous of bearing arms shall be compelled to render military service in person” which if kept would have ended much rancor over the course of our history.  This is very much in keeping with Madison’s belief that religion and state should not mix; and that if a person was conscientious objector then the government should not compel him (I would add her except in Mr. Madison’s age women serving in the military and militia or bearing arms would have been an anathama) to violate the tenets of his religion.

So what should one take from Mr. Madison original langugage and has the two centuries since he utter those words changed how we should view the 2nd Amendment.

Rather than debating the pro and cons of the Second Amendment, let us consider for a moment the Bill of Rights in its entirety.  What was the purpose of those ten Amendments?  There were two; first and foremost it was ensure the rights of the individual were not abrogated by the state; second it was to to ensure that the Federal Government respected the rights and privileges of the individual states.

Madison, while initially oppossed to the inclusion of the Bill of Rights as not being necessary, was moved by the arguments of those oppossed to the Constitution, the anti-Federalists.  One of the principal arguments they made against the Constitution was that it lacked a Bill of Rights, which most state constitutions had.  A Bill of Rights to protect the individual liberties of citizenry.  Madison, ever the astute politican, realized that the sentiments expressed by anti-Federalists were representatives, beliefs which could not and should not be ignored.

When Madison introduced the amendments it was his desire that the Bill of Rights apply to all levels of government.  His fear was that in the future, some states would abridge the rights of the individuals because their constituions lacked a Bill of Rights or that they would choose out of political expediency to ignore the constiutional mandates of their respective state constitutions.[1]

The Bill of Rights protects all citizens from the power of the state; what political philosopher Thomas Hobbs referred to as Leviathan.  Protects them from the arbitrary and capricious acts to stifle dissent and to enforce order.  These were the rights, some which were the ancient rights guaranteed by the Magna Carta, which the founders of the nation believed were essential to an effective and representative state.

For decades politicians that revere the Bill of Rights must be respected have lectured us that the amendments mean what they say except for the 2nd Amendment.  George Will, once referred in a dismissive manner, to the 2nd Amendment as that unfortunate amendment.  His attitude is representative of the attitude of American elites towards the 2nd Amendment who somehow look at the ownership of firearms as something that only the great unwashed would have an interest in and therefore firearms should be outlawed.  Fortunately for the nation and our freedoms, this view has been rejected by the Supreme Court.[2] There have been attempts by academics to prove that 2nd Amendment does not mean what it says, although in one case it was proven his work was falsified.[3]

This attitude towards the 2nd Amendment stands in stark contrast to the general reverence which the other amendments, in particular the 1st Amendment are held.  Yet for all the reverence we shower on the other fundamental rights contained in Bill of Rights most Americans do not realize that they are not absolute.  For example the right of assembly, at least a string of Supreme Court cases have held that the state may restrict assembly by specifying a time, manner, or place of assembly.[4]

Likewise the Supreme Court has held Mapp v. Ohio, 367 U.S. 643 (1961) that evidence obtained by illegal or warrantless searches may be excluded from use in a criminal trial.  Yet the Court has also provided exceptions to the exclusionary rule; most importantly when there is a reasonable belief that evidence related to a criminal activity will disappear if a search is not immediately executed, though the state (in this case law enforcement) have a very high bar in proving the need for the exception.

I mention the exceptions to the absolute nature of Bill of Rights to highlight a tension that exists with our view of the 2nd Amendment.  While I have changed my belief on the nature of the 2nd Amendment, from acceptance of the typical liberal academic disdain to acceptance that the founders intended that the populace should be allowed to be armed, if they so choose.  As the legal history of the other amendments contained in the Bill of Rights highlight the abridgement of any of those rights are judged by a standard of strict scrutiny but may be abridged so too has the Supreme Court applied strict scrutiny to any law abridging the right of gun ownership.

Whilst the jurisprudence of the 2nd Amendment is relative new the belief by some that it is absolute is just as wrongheaded as the liberal academic view that the 2nd Amendment is the unfortunate amendment.  While the state may not be able to outlaw the ownership or possession of guns I suspect that the Supreme Court will allow reasonable restrictions.  As a long ago Supreme Court justice said, “our constitution is not a suicide pact.”  In order to have proper functioning society there has to be a balance between liberty and order; otherwise you have either repression or anarchy.  The tough part is finding that proper balance.

[1] The Marshall Court, in Barron v. Baltimore (32 U.S. (7 Pet.) 243 (1833)) held that the Bill of Rights did not apply to the states.  With the passage of the 14th Amendment after the Civil War the question of whether the Bill of Rights applied to the States it was believed that this question was settled; however to date the Supreme Court has only selectively incorporated the Bill of Rights (e.g. meaning that they apply to the states).

[2] See District of Columbia v. Heller (554 U.S. 570 (2008)); McDonald v. Chicago (138 S. Ct. 1317 (2009)).

[3] See Michael A. Bellesiles Arming America: The Origins of a National Gun Culture (Alfred A. Knopf, 2000).  Bellesiles was a professor of history at Emory University who won the Bancroft Prize in 2001 and who was later fired from his position, the Bancroft Prize rescinded after it was proven he falsified much of the information contained in his work.

[4] See National Socialists Party v. Skokie, 432 U. S. 43 (1977).

 

5 thoughts on “Understanding the Second Amendment

  1. Hank, I read “Understanding the Second Amendment” for several reasons but primarily because I noticed in the recent riots in Egypt how little gun play there had been. That type of behavior goes down in this country, and I suspect somebody would break out the fire power. But not there because the general populace is not armed. And if the Egyptian army had taken a side, well, the protest would have been greatly abbreviated. I believe in the right to bear arms and the responsibility to use them in a safe manner. Unsafe and irresponsible abuse of the right to bear arms is a legitimate concern of government at all levels which should enact “reasonable restrictions” such as requiring gun safety classes, gun locks, caliber restrictions, fully automatic weapons, and restrictions such on magazine size.

  2. I think Egypt is a perfect example of why I appreciate the wisdom of the 2nd amendment. Safety classes and the criminal element aside, the right of the people to be armed is to ensure the security of our free country. Arms are to be used when government overreaches or begins to change to the point where freedoms are in jeopardy. Government should fear its citizens whey they get to that point, and we should not allow the government to take away our rights just so that they feel safer.

  3. I also agree that Egypt serves as a good example as to why the citizens have the right to bear arms. Not to hunt. Not to defend their houses against theives. But to defend their freedoms against the government that has over reached. I think the best example of why the citizens have the right to bear arms remains the images from Tianemen Square and that lone protestor standing before a tank.

    There are many who argue that democracy itself is its own protection against tyrrany. That we have sufficient checks and balances to ensure that such an abuse of power cannot occur. Yet, history is replete with the seizure of power through democratic means. In an unfortunate proof of Dawkins Rule, it is only necessary to remember that Hitler and the Nazi party were elected to power. (This is not to suggest in any way, shape or form that I believe anyone who disagrees with me, is a member of an opposing political party, or who doesn’t support the 2nd Amendment, is a Nazi and/or Hitler reborn.)

    Having said all that, it becomes immediately obvious that any restrictions on the firearms themselves is therefore counter to the 2nd Amendment. I have no problems with requiring safety courses, background checks (for criminality and/or mental illness), and with locking mechanisms. But to say that a lawful citizen cannot own a fully automatic weapon or extended magazine size, is to ignore this most important reason for the 2nd Amendment. The logical argument to this then would be “why should Americans then be able to buy tanks or nukes?”

    To put it simply, there should not be any reason why they couldn’t possess those things. However, logistics and requirements for public safety (as noted above, “its not a suicide pact”) would prevent such weapons from being owned by the general public. On the other hand, I see no reason why they shouldn’t be allowed to own ATGMs or MANPADS. Though MANPADS are likely to be far more controversial. But, with the same requirements for proper background checks, safety courses, and security measures to ensure the weapons don’t fall into the wrong hands, there is no reason that a lawful citizen should not own weapons that would give them a fighting chance against the military might of the government.

    Otherwise, what difference does the 2nd Amendment really make in regards to securing our freedoms?

    • Interesting, so the average citizen needs MANPADS, tanks, where do you draw the line, how do you maintain a balance between liberty and order? Are the rights of the individual greater than the needs of the community for order? While I agree with that an armed citizenry is a bulwark against tyranny, but if the citizenry becomes a threat to the commonweal of society who should prevail? Answer these questions and we can continue the discussion.

      • The line is in the establishment of the laws. As long as the citizenry is obeying the laws (established by a representative government) then why should it matter if they have an M-4 in their closet or an SA-18? Laws still must be enforced but if the law is not being broken (how many lawful gun owners actually rob liquor stores?), then why should they be denied access to these weapons?

        I’m not suggesting that you should be able to go to the local Arizona gun show and purchase a JAVELIN. As noted in my original comments, background checks would be warranted as would requirements for acceptable training, and confirmation of a secure storage environment.

        Ultimately, I would argue that yes, the rights of the individual are greater than the needs for community order. But that you can maintain a healthy balance by allowing the people to WILLINGLY subsume their rights to those of the community. I can go out and buy a fire arm. That is an individual right. But I am expected not to use that weapon illegally. That is in the interest of community order. I don’t see that as being an infringement of my rights to say, “yes, you have the right to own a gun…no, you do not have the right to murder someone.”

        And I didn’t say the average citizen *needs* MANPADS or ATGMS, I said they should have access to the weapons necessary to secure themselves from government tyrrany.

        Just because we have gotten out of hand in how we sell and secure firearms does not mean that we would need to make the same mistakes with more advanced weaponry. But securing a weapon is not the same as denying it to lawful citizens.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s