Of all the portions of the Constitution, the one most likely to be misunderstood, and certainly the most contentious, is the Second Amendment. It states, "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." While at first glance it may seem pretty straightforward, many people today argue that it does not mean what it says, or that it is no longer relevant today. Let's address those two points, and attempt to clarify the meaning of the Second Amendment as the authors intended it, and discuss how it could apply today, over two centuries after it was written.
In looking at the text of the Second Amendment, we see immediately that it is broken up into two parts, "A well regulated Militia, being necessary to the security of a free State," and the second part which states, "the right of the people to keep and bear Arms, shall not be infringed." The first part explains the reason for the second part, or describes the end goal that will be achieved by enacting the second part. Worded slightly differently, it would state, "The right of the people to keep and bear arms shall not be infringed, because a well regulated militia is necessary to the security of a free state."
For most of our history, that is how people understood it. In modern times, however, some people have had difficulty understanding the meaning of the phrase "well regulated". They insist that well-regulated is somehow synonymous with infringed, and therefore, the government has the right to infringe on the right to bear arms. This creates a nonsensical paradox, that the author of the Bill of Rights almost certainly did not intend. Another modern argument is that somehow the right to bear arms applies only to the militia, which in the modern context refers to law enforcement officers only. This argument, however, is not grammatically sound. Take the following sentence, as an example: "A well tailored suit, being necessary for a sharply dressed man, the right of the people to keep and wear clothes shall not be infringed." In this sentence, who has the right to wear clothes? A) The people, B) A well tailored suit, C) A sharply dressed man, D) The Police. Looking from the perspective of grammar, there is only one right answer.
Ultimately, though, most arguments attempting to change the meaning of the Second Amendment are made in bad faith. Everyone understands what it means, some people just don't like what it says. Imagine, if you will, that the 28th Amendment has been ratified. It states: "A well-regulated medical field being necessary to a healthy state, the right of the people to have abortions shall not be infringed." Assuming that amendment were to be ratified, under which circumstances could abortions be banned? What if a local governing body set up local restrictions on abortions? Could congress limit the number of abortions someone could get? Could background checks be required? Should people who get abortions have to register them with the government? What if only "Assault abortions" were banned? What about waiting periods? This, of course, is only a hypothetical exercise, as even the most ardent pro-life advocate would have to concede that all of these restrictions would be unconstitutional.
What about the broader context of the Second Amendment? Surely context will indicate what the authors intended! Ok, let's look at the context.
The Second Amendment was added to the Constitution in 1791 as part of the Bill of Rights. Leading up to the signing of the Constitution, and in the two years that followed, many of the founding fathers feared that the Constitution gave the Federal government too much power, and did not specifically protect certain individual rights. Others argued that a bill of rights was not necessary, as the Constitution limited the Federal government to only the powers specified in the Constitution, and therefore a Bill of Rights would be redundant. Still others argued that a Bill of Rights could be misinterpreted to only cover the rights listed, and the government could then violate any right not listed. James Madison, who initially believed the Bill of rights was unnecessary at best, and dangerous at worst, eventually introduced the Bill of Rights to Congress. Thomas Jefferson played an important role in persuading him, by telling Madison “A bill of rights is what the people are entitled to against any government on earth, general or particular, and what no government should refuse, or rest on inference.”
We can see from the Bill of Rights that each of them was a guarantee to the people that certain rights were so important, that the government was expressly forbidden from violating them. The Bill of Rights does not grant any new rights to the people, and it does not limit the people to only the rights listed. The Bill of Rights acts solely as a limitation on the government to further restrict its power.
What about the broader context? How does the Second Amendment factor into the Constitution?
The Constitution as a whole rests on the concept of a balance of power. It separates the Federal government into three branches, each with powers of checks and balances over the other two. It also limits the power of the Federal government in relation to all the states. In effect, it grants the Federal government only the specific powers spelled out, and all other powers belong to the states or the people. Finally, the Constitution further diffuses power by prohibiting a standing army, and entrusting the use of force to the militia made up of the people. This is why the Second Amendment states that the militia is necessary for a free state. It is a force powerful enough to repel an invading army, while at the same time acting as a check against the power of the government.
The Constitution also spells out Congress's role in relation to the militia. Article I, Section 8, grants Congress the power to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" In other words, the militia is to act on behalf of Congress to enforce the laws, maintain order, and protect the country against any invading army. These are the roles of the militia made up of the people, not the police or military. Congress also has the power 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;" This describes the "well regulated" aspect of the militia. Congress has the important role of setting standards for the militia, ensuring they are well armed and equipped, and that they are well trained. The administration of the militia is left to the various states. When Congress calls forth the militia, as in the case of war, they would fall under Congress's authority. Otherwise, it is up to the states. When was the last time Congress has provided for arming the militia? When was the last time Congress has set fitness or marksmanship guidelines for the militia? When was the last time Congress has called on the militia to maintain order? Congress has been derelict in its duty toward the "well regulated militia", and instead has spent its focus on infringing on the right to bear arms.
Ok, but what about more context? What were Madison and the rest of founders thinking when they wrote the Second Amendment? Surely more context could explain what it means!
James Madison did not whimsically decide to include the Second Amendment in the Bill of Rights. He drew from a long line of established historical precedent. He looked to documents such as the Magna Carta of 1215 and the English Bill of Rights of 1689. In regard to the English Bill of Rights, two of the complaints levied against King James the Second were that he kept a standing army in times of peace, and that he caused protestants to be disarmed, while catholics were not. As a result, the English Bill of Rights guaranteed, among other things, that a standing army in times of peace was against the law, and that protestants may have arms for their defense. Madison understood that the English Bill of Rights did not grant protestants the right to bear arms. Instead, it codified that it was illegal to deprive protestants of their inherent right to bear arms.
As a Virginian, Madison also drew upon the Virginia Constitution, drafted in 1776, which starts with Virginia's Bill of Rights. Article I, Section 13 of the Virginia Constitution stated: "That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; 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." (Note: in 1971, Virginia added "therefore, the right to keep and bear arms shall not be infringed" to their Constitution). The Virginia Constitution expands on some of the concepts which eventually became the Second Amendment. In Virginia's version, we see the definition of a well regulated militia as one that is "composed of the body of the people, trained to arms." Virginia's version also makes clear that the militia is the proper, natural, and safe defen(s)e of a free state instead of an army. It is clear that Virginian's saw a powerful government and a powerful military as a threat to freedom. This is why a well regulated militia is so important to freedom. Several of the other original 13 states had similar provisions in their Constitutions at around the time of the Second Amendment. For example, Article I, Section 21 of Pennsylvania's Constitution, enacted 1790, states: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."
Madison's original draft of what became the Second Amendment further clarifies what Madison intended. His first version stated: "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.” Notice the phrase about the right of the people to keep and bear arms came first, and was independent of the phrase about the militia. Clearly, bearing arms is independent of service in the militia. Secondly, notice that Madison intended the militia to be both well armed and well regulated. It would be absurd to believe that Madison intended the phrase "a well regulated militia" to mean that the government could disarm the people. His intention was the exact opposite. He intended the people to be well armed.
Ok, sure. The Second Amendment makes sense in the context of the Constitution. But what did others at the time of the writing of the Constitution have to say about the right to bear arms, or of the militia? Could they shed some light on the meaning of the Second Amendment?
The Founding Fathers had much to say about the right to bear arms and the role of the militia. Afterall, they had just overthrown the most powerful government in the world, largely because the people were armed. A thorough review of the Founding Fathers' views of the militia would take several books to cover. However, below are a few examples to provide further context.
In a March 5th, 1774 speech given on the anniversary of the Boston Massacre, John Hancock had the following to say: "But since standing armies are so hurtful to a State, perhaps my countrymen may demand some substitute, some other means of rendering us secure against the incursions of a foreign enemy. But can you be one moment at a loss? Will not a well-disciplined militia afford you ample security against foreign foes?" He later added: "A well-disciplined militia is a safe, an honorable guard to a community like this, whose inhabitants are by nature brave, and are laudably tenacious of that freedom in which they were born. From a well-regulated militia we have nothing to fear; their interest is the same with that of the State. When a country is invaded, the militia are ready to appear in its defense; they march into the field with that fortitude which a consciousness of the justice of their cause inspires; they do not jeopard their lives for a master who considers them only as the instruments of his ambition, and whom they regard only as the daily dispenser of the scanty pittance of bread and water. No; they fight for their houses, their lands, for their wives, their children; for all who claim the tenderest names, and are held dearest in their hearts; they fight pro aris et focis, for their liberty, and for themselves, and for their God." To Hancock, a well regulated (or well disciplined) militia was one that could take on the most powerful armies on earth. The advantage the militia had over militaries was that militia members fought for themselves and their loved ones, while armies fought for whoever would pay them.
In the Federalist Papers No. 29 published on January 10, 1788, Alexander Hamilton described the role of the militia in the newly formed nation. Hamilton addressed critics of Congress's proposed Constitutional power to provide for organizing, arming, and disciplining the militia. Hamilton argued that a militia could more effectively check the power of the government, as without the militia, Congress would simply turn to the army. In Hamilton's words: "To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper." This is almost prophetic in that as this nation has lost the well regulated militia, the government has relied on a powerful standing army, and an established and militarized federal police force. The Constitution's prohibition on funding an army for more than two years at a time has been rendered meaningless. Hamilton further defined "well regulated" as "to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia." Thus, Hamilton envisioned the militia to be well trained. Hamilton envisioned having "an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, 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 own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.'' In other words, the militia should be so well trained to address any national security, that an army would be redundant. And in the case the army were to become too powerful, the militia would stand ready to defend the people against it.
In an essay on the Second Amendment from 1793, Supreme Court Judge, and signer of the Constitution, William Paterson stated: "A well-regulated militia is considered as essential to the preservation of civil Liberty. What, indeed, is a militia but the people themselves prepared to act as soldiers for the purpose of resisting oppression and securing their rights. To be prepared for war is the way to prevent it; to be ready in arms to meet and resist tyranny never fails to deter its approach. Tyrants dread freemen, when freemen not only have arms in their hands, but know how to use them. Discipline, aided and enforced by the energy and impulse of freedom, is irresistible. Even men, untutored in the art of war, but resolved to be free or die, have achieved wondrous things." Paterson's essay makes it clear that the militia is composed of the people who are well armed, and well trained to resist tyranny.
While slightly later than the time of the writing of the Second Amendment, the U.S. Supreme court declared in Nunn vs the State of Georgia in 1846 "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right...." According to this ruling, the right to bear arms applies to all people, not just the militia, and all laws that infringe on that right are unconstitutional.
Ok, so the militia made sense at the time of the Constitution. But times have changed, and weapons have become more powerful. Surely the founding Fathers could not have imagined a weapon as powerful as the AR-15. Even they would have agreed that weapons of war only belong in the hands of the government, right?
The purpose of the Second Amendment is that the people should be the natural defense of the nation instead of the army. The purpose of the militia is to enforce the laws, protect against insurrection and invasion, and to prevent tyranny. By keeping the power with the people, the government is forced to depend on the people, not the other way around. In order to accomplish the objectives laid out for the militia, the militia must have the appropriate weapons, training, discipline, and leadership. To fend off an invading force, the militia must have sufficiently powerful weapons of war. To prevent tyranny, the militia must be more powerful than any force a prospective tyrant could muster. This was just as true in 1776 as it is today, and it applies to any weapons that could be imagined at any point in the future.
The founders of this nation feared standing armies as a threat to freedom. A large part of the reasons for the revolutionary war was that Great Britain sent soldiers to the states to enforce taxes that the people did not consent to. In slightly over 200 years we now find ourselves living under the largest government in history, with the most powerful military in history, with our freedom eaten away by a standing army of militarized federal law enforcement officers. We should not be asking why civilians should own weapons of war. Instead, we should be asking why IRS agents need weapons of war.
But you can't take on the government with only an AR-15! You would need F-15s and nuclear weapons!
Saying that there is no point to a militia because the military is too powerful is much like a rapist telling a woman to not resist because the rapist is more powerful than her. The woman would be much better off carrying a gun and training on how to use it effectively. If the point of the militia is that standing armies are a threat to freedom, then a powerful military is even more reason for a well regulated militia, not less. The army is unconstitutional. The Constitution only empowers Congress to raise and support an army for a period not to exceed two years. If the authors of the Second Amendment did not envision civilians owning AR-15s, then they did not envision the military having tanks, F-22s, and nuclear weapons. And they certainly did not envision our political leaders threatening to use these weapons against their own people. These are even more reasons for a well regulated militia.
Governments murder far more people than criminals do. Criminals murder far more people than gun owners do. This is why the militia is the most natural defense of a free state. As the disparity in weapons technology between weapons owned by militaries as compared to civilians has increased, so have the atrocities. The U.S. government historically has been perhaps the most benevolent empire in the history of empires, Yet it, too, has committed its share of atrocities. On December 29th, 1890, the U.S. army committed the worst mass shooting of civilians in U.S. history when it massacred between 150 and 300 Lakota Sioux. Of course, the army disarmed them first.
The Founding Fathers saw the overreach of Great Britain, as it sent soldiers to the colonies to rule over the Americans. What they experienced pales in comparison to the great tragedies We have seen in the past century. The Founding Fathers would have been appalled to hear of the totalitarianism that swept through Germany in the 1930s, or the 100 million people who died because of communism.
As the U.S. government has grown increasingly large, it has become less representative of the will of the people. Politicians see the people as a resource to be taxed, rather than holding to their purpose to secure the freedom of the people. Our ballooning national debt is becoming an insurmountable burden on future generations who did not consent. The militia is becoming more necessary than ever as a check on the growing power of the government.
But guns kill people! Don't you care about the children? Doesn't the U.S. have the highest rate of gun violence when compared to western nations with lower gun ownership rates and lower gun violence rates?
Yes. Guns kill people. That is their purpose. Every gun is a weapon of war designed to kill people. But that is precisely why it is so important for the people to be well armed. Laws will not prevent authoritarian governments from murdering their own people. Laws will not prevent criminals from murdering other people. Only when the people can protect themselves with the use of force, can they ensure their own security and freedom.
There is no correlation between gun ownership and homicides. Those who will compare gun ownership and murder rates in the U.S. as compared to Western Europe are being statistically disingenuous. The U.S. is an outlier compared to the rest of the world because it has so many more firearms per capita. When you compare guns per household, the disparity shrinks. Comparing the U.S. to carefully selected countries with lower homicide rates, and then claiming guns are the cause is lazy at best, and deceitful at worst. One could just as easily compare the U.S. to all third world countries with much lower gun ownership rates, and claim that guns are the reason the U.S. has the lowest homicide rate of the carefully selected countries.
But that's not a fair comparison! Third world countries face poverty and lawlessness, and a wide range of socioeconomic factors that lead to their high homicide rates.
Compare Honduras and Switzerland. Both countries have roughly an equally sized population. Honduras has a low gun ownership and high homicide rate, while Switzerland has a high gun ownership rate and low homicide rate. Compare Sweden twenty years ago with Sweden today. Twenty years ago, Sweden had a high gun ownership rate and low homicide rate. Since then, homicide has skyrocketed, while gun ownership has plummeted. Compare North Korea with South Korea. Both have negligible gun ownership rates, share a common history and culture, and have largely homogenous populations, yet the homicide rate in North Korea is significantly higher than in South Korea. Compare the United States with the United States. Gun ownership rates and homicide rates are not spread equally among the population. Homicide rates in communities with high gun ownership is substantially lower than in communities with low gun ownership rates. Once you understand the socio-economic factors that lead to higher homicide rates in Honduras, Sweden today, and North Korea, you will see those same socio-economic factors plaguing areas of the U.S. with high homicide rates.
Any time the U.S. experiences a high-profile mass shooting, politicians inevitably argue that the U.S. needs stricter gun control measures. They fail to mention that all the gun control laws passed so far have been ineffective at reducing homicide rates. Rather than evaluating past gun control laws, and repealing ineffective laws, they simply push for more. Central to the failure of gun control laws is the fact that they only affect law abiding citizens. Those who comply with anti-gun laws are not the people who would have committed murder to begin with. Those who are willing to murder are not deterred by anti-gun laws.
Ok, so what would a modern American militia look like today? What role would it play, and how would it function?
Ideally, the first step toward a modern American militia would start with Congress. It is their duty to organize, arm, and discipline the militia. Rather than maintaining a hostile relationship with an armed populace, Congress should embrace the fact that they derive their powers from the people. Congress should establish basic standards for becoming a member of the American militia. For example, Congress could dictate that at minimum people must pass a physical fitness test, a pistol and rifle qualification, a written test on rights and responsibilities of the militia, and complete a first responder casualty care course. These standards could be equivalent to what would be required for the police or military. Congress could also determine how often the militia must meet these standards. Congress also has the authority to ensure the people have access to the training required to be part of the militia, ensuring it is part of high school curricula, or provided to local communities. Congress could also provide scholarships to militia members in under-represented or high crime areas to boost militia membership where it is needed most. Afterall, arming and training the militia is one of the very few things that the Constitution authorized Congress to spend taxes on.
In addition to the basic requirements for being a member of the militia, each militia member could seek out additional training to add to their qualifications. For example, militia members could add "active shooter response", "riot response", "militia officer", or "commercial drone operator" to their list of qualifications. Training for these extra quals could be at the expense of the militia member, or paid for through taxes, depending on the need for the qualifications and Congress's discretion.
By compiling a list of active militia members and their various qualifications, a mayor of a town could call up the militia to provide security for a local parade, the governor could call up the militia to control a riot, the governor of a border state could request volunteers for a temporary paid rotation as a border patrol officer, and Congress could mobilize the militia in case of war. Over one million people in the U.S. hold Top Secret clearances. Militia members with Top Secret clearances and the requisite training could carry weapons on planes and in government buildings, making hijackings and terrorism virtually impossible. A militia membership could grant concealed carry privileges anywhere in the U.S., making gun free zones a hard target for would be mass shooters. This would greatly reduce the need for police, federal law enforcement, and military. It would also ensure that local militia members protect their local communities.
A well regulated militia would greatly reduce the need for a standing military. The reality of the world today necessitates a military, though much of the personnel requirements could be greatly reduced. Switzerland is a great example of what a modern military supported by the militia could look like. Switzerland has a small standing military, relying heavily on reserves and militia in case of war. Likewise, the U.S. could maintain a military to serve as a strategic deterrent, but rely on the militia for security. (Strategic deterrent typically refers to nuclear weapons. In this case, the term is broader, and includes conventional weapons with the purpose of deterring an attack by an adversary). Some functions would also have to remain with the military due to the significant investment and training that would be required. For example, the military would still need to maintain special operations forces, helicopter pilots, and early warning radar. By rethinking the role of the military to simply one of strategic deterrence, the U.S. could greatly reduce the size of the military, withdraw from its many bases overseas, and significantly reduce expenses. Likewise, federal law enforcement could focus on national security threats such as international terrorism and espionage, and relegate nearly everything else to local law enforcement or the militia. We do not need 200,000 armed federal law enforcement officers when 10 million armed militia members could more effectively protect our freedom.
All of this sounds great in an ideal world, but we all know Congress would never do any of this. How can the modern American militia exist without the support of Congress?
Our politicians have long ago stopped representing the will of the people. Instead, they use the people to accumulate more money and more power. They use the people's taxes, taken by force, to further build their control. No, the American people cannot look to the largest government in history to secure their personal freedom. Instead of waiting for Congress to build the American militia, the people must build it themselves organically. The people must arm themselves, train themselves, and discipline themselves. The more self-reliant the people can become, the less they will have to rely on the government to provide for their needs. The Founding Fathers intended for the militia to protect the people against a tyrannical government. More importantly, a well regulated militia protects the people from becoming dependent on a benevolent one.
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