Does the Second Amendment Secure an Individual Right?
November 27, 2007
The subject of weapons owned by the general population of a nation as always been a point of hotly debated contention. For hundreds of years, governments, even though many have the best intentions for doing so, often seek to disarm the common people. Some try to preserve general order by so doing and others seek to quell their opposition and ensure their own permanence. The common man, in contrast, has always sought to arm himself. Either to hunt for food, defend his family and property or, at times, to defend himself from unjust rule, whether that be from his own government or that of another.
The Second Amendment of the Constitution of the United States of America reads, "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." It is from this section of the Bill of Rights that we as American citizens are guaranteed the right to "keep and bear" personal arms, or guns. Interpretation of this Amendment, like the subject of personal weapons as a whole, is not without controversy. However, most scholars are convinced that the Second Amendment refers not to a National Guard (which is actually described in Article 1, section 8 of the Constitution and furthermore did not exist until 1903) but specifically refers to the individual citizenry.
The original intent of the authors of the Constitution can clearly be seen in the variations between the first few drafts. The original version was an unnumbered list, penned by James Madison, that was intended to be inserted into the main body of the Constitution rather than attached to the end as it is now. It was presented to Congress on June 8, 1789 and read, "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."[i] It should be noted that this statement was to be inserted in the First Article, Section Nine, between clauses 3 and 4, following the prohibition on suspension of habeas corpus and ex post facto laws, all individual civil rights. It follows then, that this statement too was understood to be an individual right of each citizen.
It is interesting that the authors chose, after weeks of debate and voting, the words "keep and bear arms". Implying not only the ownership of weapons but also the ability to bear, or carry, those arms. For the first ten to twelve decades no one really even questioned the intent of the Second Amendment. In Dred Scott v. Sandford (the 1856 Dred Scott Decision), the Supreme Court stated in an objection, "It would give to persons of the negro race, who were recognized as citizens in any one State of the Union . . .the full liberty . . .to keep and carry arms wherever they went." The Court indicated here that is was considered a universal right of all citizens to carry arms wherever they went. It is evident from this wording, that "to keep arms" was considered distinctly different than to "carry arms".
It was common practice for many members of Congress to carry pistols, and "guns and knives were abundantly evident on the floors of the House and Senate". In one heated House debate, 30 members showed their weapons. In at least three cases (1826, 1851, and 1856), a member of Congress challenged a colleague to a duel from the floor and then did duel outside.[ii]
In addition to the Constitutional guarantees, common law, derived from the British provided for personal ownership of arms. Even before the Revolutionary War, the Protestant colonists, being British subjects, had a conditional right to possess arms according to the English Declaration of Rights of 1689.[iii] When the British government attempted to disarm the colonist’s militias in the early phases of the Revolutionary War, the colonists cited the aforementioned English Declaration of Rights, their own local militia laws, Blackstone’s (who was the first to put English common law into writing) summary of the Declaration of Rights and the common law rights to self-defense. Clearly, the early Americans of our country saw the vital role that individual gun ownership played in not only personal defense but more importantly in the defense of the nation as a whole.
Even Aristotle, who lived around 350 B.C., saw the important role arms played in government when he said, "Those who have the command of the arms in a country are masters of the state, and have it in their power to make what revolutions they please. [Thus,] there is no end to observations on the difference between the measures likely to be pursued by a minister backed by a standing army, and those of a court awed by the fear of an armed people."
Indeed, other more infamous leaders also understood the importance of removing arms from their citizens and political opponents. Men like Joseph Stalin (1878-1953) who admonished, "If the opposition disarms, well and good. If it refuses to disarm, we shall disarm it ourselves. "Vladimir Lenin (1870-1924) said, "One man with a gun can control 100 without one … Make mass searches and hold executions for found arms." Likewise, Adolf Hitler during World War II in conversations with his staff stated, "The most foolish mistake we could possibly make would be to allow subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing."
It almost goes without saying that our Founding Fathers believed in this fundamental principle and many even gave their lives to ensure that we may have it. Thomas Jefferson, author of the Declaration of Independence wrote in 1824, "The constitutions of most of our States assert that all power is inherent in the people; that … it is their right and duty to be at all times armed." In a letter to James Madison in 1787 he replied, "What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance. Let them take up arms." Timothy Dwight, who was an Army Chaplain during the American Revolution, summarized the views of many of his peers when he said, "To trust arms in the hands of the people at large has, in Europe, been believed…to be an experiment fraught only with danger. Here by a long trial it has been proved to be perfectly harmless…If the government be equitable; if it be reasonable in its exactions; if proper attention be paid to the education of children in knowledge and religion, few men will be disposed to use arms, unless for their amusement, and for the defense of themselves and their country."
This fundamental principle has been repeated and believed essential from America’s very start by every great American leader. In 1960, John F. Kennedy reiterated rather eloquently, "Today, we need a nation of Minutemen, citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom. By calling attention to ‘a well regulated militia,’ the ’security’ of the nation, and the right of each citizen ‘to keep and bear arms,’ our founding fathers recognized the essentially civilian nature of our economy. Although it is extremely unlikely that the fears of governmental tyranny, which gave rise to the Second Amendment, will ever be a major danger to our nation, the Amendment still remains an important declaration of our basic civilian-military relationships, in which every citizen must be ready to participate in the defense of his country. For that reason I believe the Second Amendment will always be important."
I believe, however, that Thomas Paine, an American Revolution political philosopher, summarized many men’s conclusion to the entire debate best when he answered, "Arms, like laws, discourage and keep the invader and plunderer in awe and preserve order." [iv]
[i] Gales, Joseph. (1834). The Debates and Proceedings in the Congress of the United States. Retrieved November 21, 2006 from http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=227
[ii] O’Connor, Karen. (2006). American Government: Continuity and Change. New York: Pearson Longman.
[iii] The Avalon Project. (1996). The Avalon Project: English Bill of Rights 1689. Retrieved November 21, 2006 from http://www.yale.edu/lawweb/avalon/england.htm
[iv] Smith, Guy. (2006). Gun Facts. All Quotes Retrieved November 21, 2006 from http://gunfacts.info/pdfs/gun-facts/4.1/GunFacts4-1-Print.pdf
Reference List
Bradbury, Steven G. (2004). Memorandum Opinion for the Attorney General. Retrieved November 21, 2006 from http://www.usdoj.gov/olc/secondamendment2.htm
O’Connor, Karen. (2006). American Government: Continuity and Change. New York: Pearson Longman.
Schmalleger, Frank. (2006). Criminal Justice: A Brief Introduction. New Jersey: Pearson Prentice Hall.
Wikipedia. (2006). Second Amendment to the U.S. Constitution. Retrieved November 21, 2006 from http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution
