Tenth Amendment Center: Understanding the Meaning of the Second Amendment and the Right to Keep and Bear Arms
In the age of the Internet when “pseudo-quotes” attributed to founders often obscure the truth of what they said and facts surrounding their actual beliefs, it’s important for gun rights activists to know the real historical record.
Saul Cornell serves as the Paul and Diane Guenther Chair in American History at Fordham University. He recently wrote an article titled “5 types of gun laws the Founding Fathers loved” examining firearm regulations before and after the American War of Independence. The article is fascinating and includes information that I, as an amateur history buff, was unaware of. Some of these facts are relevant to the modern gun debate.
However, it is worth taking a second look at the thesis of the piece itself, and highlighting some other related points that are often not discussed.
Cornell summarizes his argument (bold emphasis added):
Ironically, those on both ends of our contemporary political spectrum cast the Second Amendment as a barrier to robust gun regulation. Gun rights supporters — mostly, but not exclusively, on the right — seem to believe that the Second Amendment prohibits many forms of gun regulation. On the left, frustration with the lack of progress on modern gun control leads to periodic calls for the amendment’s repeal.
Both of these beliefs ignore an irrefutable historical truth. The framers and adopters of the Second Amendment were generally ardent supporters of the idea of well-regulated liberty. Without strong governments and effective laws, they believed, liberty inevitably degenerated into licentiousness and eventually anarchy. Diligent students of history, particularly Roman history, the Federalists who wrote the Constitution realized that tyranny more often resulted from anarchy, not strong government.
No doubt, the Federalists were fearful of anarchy (and democracy, too), but the anti-federalists who criticized the Constitution raised objections about many of its provisions that today border on prophetic. If there are concerns about anarchy in our modern political climate, much of that is due to what Samuel T. Francis referred to as “anarcho-tyranny,” in which an overbearing government enforces rules it shouldn’t, and won’t enforce rules that it should. We see every day as the federal government violates the restrictions placed on it by the Constitution, and the states too often let them get away with it.
In his article, Cornell highlights that gun registration and regulations existed in the American colonies. In fact, all but Pennsylvania had local citizens, white men between the ages of 16-60 in state-regulated militias. They also had to register their firearms with that militia.
But the regulations Cornell focuses on were all colonial or state laws – not regulations imposed by the general government.
This brings up an important, but common mistake people make when they discuss the Second Amendment, as opposed to the validity or effectiveness of gun control policies – the presumption is the amendment prohibits all gun control laws at all levels of government.
This is not true.
The Second Amendment (along with the entire Bill of Rights) was only intended to apply to the federal government – not the states. Barring a state constitutional provision protecting the right to keep and bear arms, states retain the authority to set whatever restrictions on guns they desire. In other words, the power of state government to regulate firearms flows from the state constitutions. The federal government has no say one way or another.
However, many states do have their own version of the Second Amendment. Even if they do not, we then get into the discussion of whether the right to bear arms is an extension of the natural right of self-defense and thus an extension of self-ownership.
In other words, there are many different facets of the debate, and it is good to know what argument is being made. Whether gun control works and whether gun control is constitutional are related but distinct issues.
The historical example Cornell uses of local militia showcase one of the problems with comparing colonial America to today when discussing the gun debate. As Cornell points out, in the 1700s, the average man was involved in the enforcement of law and order. There was not the kind of legal segregation between an “officer of the law” and a civilian we have now. This is why George Mason referred to the militia “the whole people, except for a few public officials” at the Virginia Ratifying Convention.
It was the militia that participated heavily in the early battles against the British in the War of Independence. In fact, the war was instigated by efforts to seize the arms and munitions of militia stored in Lexington and Concord.
When the Constitution was being discussed and ratified, there were no militarized police forces with legal privileges such as sovereign immunity or qualified immunity. Law enforcement didn’t have special powers denied to the common citizen. Today, average people have been wholly removed from the enforcement of laws. Also, the federal government now has its tentacles into local law enforcement agencies through grant programs, something that was inconceivable in 1787.
In addition to the common man’s involvement in enforcing government’s rule, the founders also had profound suspicions toward a standing army. During the Philadelphia Convention, James Madison remarked that “A standing military force, with an overgrown Executive, will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”
It is no surprise that had they won the war against America, the British intended to confiscate all firearms and station a standing army in the colonies.
The defense of the nation and the individual states was to be entrusted primarily to the armed populace, not a large, permanent military or massive police forces. Hence, the term “well-regulated militia.” The states were to safeguard their liberties against both foreign and federal tyranny through the use of well-armed, well-trained citizen-militia, not a professional force.
Cornell’s article mentions that “men could be fined if they reported to a muster without a well-maintained weapon in working condition” – perhaps this is what the Founders meant by “well-regulated,” not federal criminal background checks or restricting the magazine sizes for semi-automatic rifles.
It goes without saying that the original vision for our nation’s defense bears little semblance to what the United States looks like today, once again proving the anti-federalists had legitimate concerns about the Constitution’s broad authority, despite Federalist promises of “few and defined” powers.
Cornell also brings up historical open-carry laws, but again the colonies individually enacted these policies. As stated before, the Second Amendment is concerned with federal authority.
He also brings up local laws requiring safe storage of arms, but adds that this “made sense since the black powder used in firearms in this period was corrosive.” The reasons for enacting safe storage laws today have to do with regulating access to firearms (or more ulterior motives) than worries about accidental explosions.
Cornell then pointed to the fact that the founders took arms from civilians following the Revolution unless they took an oath of loyalty to the government, a soft form of disarmament. Again, this act has to be understood within the historical context, in which many American loyalists had fought on the side of the British and probably didn’t wear that on their sleeve after the fighting had been done. Those unwilling to swear loyalty to the government had more than their arms taken away; many were expelled outright from the states. The point of this was to prevent efforts to undermine American independence and eradicate possible fifth columns. America’s position after the war was far from stable, which is why the War of 1812 is often called America’s Second War of Independence.
The confiscation advocated today is purely on the basis that no private citizen should have “military-style” firearms, a notion that would have been utterly foreign to the founders. This is why there is no proposal today to confiscate firearms of private civilians based on their lack of loyalty to the U.S. Constitution.
Cornell then writes:
One of the most common claims one hears in the modern Second Amendment debate is the assertion that the Founders included this provision in the Constitution to make possible a right of revolution. But this claim, too, rests on a serious misunderstanding of the role the right to bear arms played in American constitutional theory.
A bit of nuance is perhaps required to differentiate between the “right of revolution” and the “right to resist government tyranny.” The conversations at the Virginia Ratifying Convention reiterated fears of a standing army created by a central government with direct powers of taxation. It is why the Second Amendment was proposed, to prevent a powerful centralized government from stripping the arms of its citizens, as had been done in Europe.
Obviously, those weapons were to be used by the people against their government if it went beyond its authority.
We see this reflected in the Virginia Ratifying Convention’s proposed version of the Second Amendment:
That the people have a right to keep and bear arms; 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, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.
This view was echoed around the same time by Noah Webster, who wrote the following in 1787 before the Constitution was ratified:
“Before a standing army can rule, the people must be disarmed, as they are in almost every country 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. 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.[Emphasis added]
Alexander Hamilton also acknowledged the right of resistance in Federalist #28. “If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense,” a right which he declared to be “paramount.”
Which brings us back to the Battle of Lexington and Concord. It was not a foreign government attempting to invade the American colonies and overthrow their government. Their own government was trying to seize military arms to prevent violent resistance to policies and acts against their own people considered to be intolerable and in violation of their rights.
However, we must also acknowledge that at that point in 1775, the question was about upholding the rights of Englishmen in the American colonies. The militia at Lexington and Concord were not fighting to overthrow the British government. Breaking free from England became a war objective later on.
During the Virginia ratifying convention, George Mason referred to British efforts to disarm the colonists as he argued for the need to protect the right to keep and bear arms.
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.
Lastly, whatever the intent of the Second Amendment, the founders acknowledged the right of revolution in the Declaration of Independence, not to mention when they killed British soldiers trying to maintain British supremacy in America. Again, the initial thought was not to overthrow the British rule, only to assert their rights as Englishmen. Once the British government acknowledged those rights, their rule would be accepted once more.
But when a long train of abuses and usurpations…
TJ Martinell
February 27, 2018 at 03:57PM
