The 2nd Amendment:
A Historical Understanding
The Bill of Rights, like any historical document, can only be understood in its historical context. In placing it in context we must remember that the men who wrote it lived in a small and in many ways backward agricultural country. America in that era was not a superpower with the political options of a superpower. It was a rough frontier country still importing most of its manufactured goods. The men who wrote the constitution were men well accustomed to the hard world of agriculture, animal husbandry and poor communications over appalling roads.
In short, these were practical men of affairs and men of the frontier. When they wrote the Constitution and the Bill of Rights they were struggling to establish the foundations on which a successful government could be built. They were also men with bitter recent experiences of bad government and the brutal realities of civil and revolutionary war that bad government had brought in its train.
These historical circumstances are obvious. Almost too obvious to mention - yet it's surprising how many modern commentaries or analyses start from the assumption that the framers of the Constitution and the Bill of Rights were engaging in an esoteric theoretical exercise in political theory. Or worse yet amusing themselves with a complex post-modern exercise in textual elaboration.
The Constitution and the Bill of Rights are historical as well as legal documents. They can only be understood from a perspective that embraces the historical context that surrounded them. This viewpoint
emphasizes that these are practical documents written by men intent on the establishment of a successful system of government. The preamble to the Bill of Rights reinforces this understanding. It states:
"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."
Clearly the amendments were being produced because some of the states were concerned about how power was distributed and wanted the matter clarified. "Declaratory and restrictive clauses" were being added to affirm what was and prescribe what should be. In short, the preamble makes it clear that its framers were dealing with issues of governmental power.
The controversial and "elusive" 2nd Amendment is best understood from this perspective. That it is an attempt by practical men to "declare and restrict" relationships of power. The Amendment 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".
OK - Simple enough, a regulated Militia is necessary and the people's right to keep and bear arms shouldn't be messed with.
So what is the difficulty in understanding this Amendment? The difficulty is that to our modern sensibilities these two statements, one about a Militia and the other about people's rights seems ambiguous. Indeed, we might ask, why should they be connected at all? But since they obviously are connected which of the two parts should have priority? Should it be read that since a Militia is necessary therefore people (in the Militia) should have arms i.e.- should it be read as a collective right? Or should it be read as two statements - one about a Militia, a military organisation, another about an individual right to arms? As I shall explain below both of these "obvious" modern interpretations are in error. To see why this is we must examine the arguments supporting these interpretations and the actual historical context in which the document was made.
The collective rights argument can be made, but it rests on an assumption. It assumes that a Militia of 1791 is the same as a "Militia" in the year 2000. That is, it assumes that they are both uniformed bodies of troops (full time or part time) under the direct command of the government through government-appointed officers. Under this interpretation the right to bear arms means that there is a "right" to establish military organisations under government control and that "the people" enrolled in those military organisations have the right to weapons. Hence no individual private "right" to arms exists. Under this interpretation, the Amendment merely refers to the "right" of government troops to arm themselves.
This is the essence of the "collective rights" interpretation of the 2nd Amendment. However, as an argument it has two serious problems. First, the assumption that the Militia of 1791 is the same as America's contemporary military organisations (full or part time) is just plain wrong. Second, the argument, reduced to its basic structure, is bizarre. The argument asserts that people have the "right" to bear arms because government formed and controlled military organisations are required.
OK, but why would this be necessary? The government clearly - then as now- has the right to raise and equip troops. Why in the name of wonder would "the peoples" right to arms come into it?
Essentially, the argument here is that the US Army (full or part time) can only be armed if the government delegates the "right to bear arms" to the whole population! This assumes that the government can only have armed troops if it delegates the right to bear arms to "everyone" but that they can only exercise that right as part of the government's army!
This is bizarre. This is bizarre.
First, the government already has the Constitutional authority to arm its troops
(and a host of other organisations paramilitary and otherwise!). There is no need to especially empower government to do this. It is a normal function of government already established by the Constitution. The Constitution itself asserts that the government has the right to "make war". One would presume this implies that the troops would be armed! Second, why in the name of wonder would all citizens (the people) have the right to arms if only members of a serving military (full or part time) actually exercise that right, or were intended to actually exercise that right?
This is so loopy an interpretation that one is driven to the assumption that either these guys were on "funny weed" or that's not what they meant.
Fortunately, we are saved from that somewhat disrespectful speculation by the other flaw in the "collective rights" argument. That is - the nature of the Militia.
Here we need to step back for a little historical perspective. The America of 1791 was not a superpower. National pride aside, it was a backward, recently colonial frontier. Its entire history had been one of war and threats of war. The French in the north, the Spanish in the south and the Indian Nations had all threaten the initial settlements. Moreover the colonies, from their various origins, had been "independent states" loosely tied together by their collective master the British Crown. In every case they had begun their precarious existence without a standing army of any kind. (Not unusual, in the early colonial period even the British Crown tended to raise its armies "at need" and disband them after the crisis had passed.) The colonies had followed their English traditions and organised their defence around a governor's guard (usually very small - more a personal defence force than an army), an organised "watch" to perform police duties (police in the modern sense are a hundred years in the future) and a levee en masse of every able bodied man in times of emergency.
As time went on and the colonies grew this initial arrangement was supplemented by garrisons of regular British troops, part time colonial reserves - of various levels of service and organisation- and Indian alliances. By the time of the Revolution the old practice of levee en masse was going out of use, at least in the more settled areas. Wars, for example the French and Indian War (1755-60), were conducted by regular British Troops supported by American "Militia" regiments mobilised for the war.
However, the early levee en masse tradition of the Militia, what might be called the "people's militia" continued. (We might note here that the Militia of formed bodies of troops was sometimes called the "regular", "standing" or "formed" Militia. The levee en masse Militia was often referred to as the "unorganised" Militia. The fact that there were two "types" of Militia both referred to as "the Militia" can be confusing.) As late as the 1860's we see Americans, North and South, responding to a military emergency by spontaneously forming regiments and electing their own officers. This is normally presented as a quaint example of Civil War enthusiasm. However, in reality this is the living continuation of the old levee en masse tradition of the American citizen soldier.
Back to the argument
Once we understand the nature of the "Militia" in 1791 and the levee en masse tradition of the colonial military system the meaning of the 2nd Amendment becomes obvious.
First, as the amendment itself states, there is a need for a Militia i.e. a military force. Nothing new here, the need for an organised military force has been part of the American (colonial) reality since get go.
The Militia must be well regulated. Well again, nothing new, this force was intended for use not window dressing and the colonies very lives had often depended on it. Hence "well regulated" i.e. Equipped, trained, adequately led etc.
But why should this be tied to "the people"? Couldn't the government just hand out guns, and the authority to use them, to its troops? The government's current regular army and its para-military forces such as the FBI and BATF are armed in this manner. Why not just do that under the "war making" powers vested in government by the Constitution?
Well yes, the government could have proceeded in this manner. The government then, as now, has the authority to arm its troops. Yet clearly they did not do so or for that matter wish to do so or the 2nd Amendment would never have mentioned "the people." Indeed one would wonder why there was even a need for a 2nd Amendment?
The reasons they tied the need for a Militia to an individual right to arms is both practical and political. Practically - the US, at this period in history, is a small, poor agricultural nation up to its ears in the task of nation-building and settling a frontier. It simply could not afford a regular army of any size. An army capable of "defending" the whole US was so out of all proportion to the country's resources as to be unthinkable.
The second reason is political. Americans of this period had a deep distrust of regular (standing) armies. A distrust they gained the hard way, through bitter experience. As English colonists under the Crown they shared England's history and political traditions. Centuries of Royal abuse of the Royal (government) armies had sensitised the British political tradition to the danger of armies at the immediate beck and call of the King. (The rise of Parliament and the decline of absolute monarchy can be traced in the struggle of the Crown to maintain armies and the struggle of Parliament to choke them off with lack of funding.)
The colonists (now Americans) had also had the bitter experience of a hostile Crown using its regular army (the garrison in America) to suppress dissent, impose the Crown's will and ultimately to make war on the American people.
Having fought a long and bitter war against an over-powerful government (the Crown) the whole thrust of the American political experiment was to limit, balance and restrain government power. Large regular armies under central control were simply out of the question.
Hence "the people" themselves would be the basis of the military system. The regular army would be reduced to a tiny force that was both politically safe and affordable. The need for a military would be filled by a Militia. "Regular" militia would be made up of formed bodies of troops permanently organised under
their own officers (often part time). There would also be the mass of the people, the "citizen's Militia" which continued the old levee en masse system, the calling out of every able bodied man for the emergency. In short the "every man Militia" of early colonial tradition and the frontier continued to be the foundation on which the American military system stood.
Under this system the necessity of the "people's right" to keep and bear arms becomes obvious. A semi-professional Militia force would have little time to train and was unlikely to have much in the way of surplus arms. Such a force would necessarily be dependent on the people already being skilled with arms and in many cases providing their own arms, especially during a rapid expansion in an emergency. (Again, we find examples of soldiers, especially officers, providing their own arms well into the Civil War era.) This would apply even more strongly to the traditional levee en masse, every man to the fort tradition, of the frontier. If these men were unarmed or unskilled in arms this final layback reserve of military strength would be militarily useless.
These historical understandings explain the 2nd Amendment. A "well regulated Militia" was required because that was the basis of the country's military establishment. This could only be supplied by "the people" and would only be of use if the people were equipped and skilled with arms. To deprive "the people" (individuals) of the right to keep and bear arms would have undercut the whole military system of the country. This would have forced the government into a choice between an unaffordable, politically unacceptable regular army or defencelessness. Hence the individual right to keep and bear arms was essential, indeed number two on the list of essential things to affirm in the Bill of Rights.
There are a couple of further historical points that underline this insistence on an individual right to arms. The men who organised the American government had all experienced a "lawful government" that ignored their rights and which had responded to complaints with arrogant force. Indeed the Crown had taken the position that the Americans had no rights (A large part of the colonist's grievances were based on the fact that the King was engaging in direct divine right rule of the Colonies through his Governors, a practice that the rise of Parliament had stopped in Britain.) Grievances and
complaints, no matter how humble and respectful, were simply treated as disloyalty and dismissed. An experience that convinced the Americans of the futility of mere reasoning and petitions in the face of a
willfully despotic government.
Americans of this generation were well aware that their success in the Revolution had rested on them having the means to revolt i.e. arms. Further, the Crown had responded to their civil disobedience with direct attempts to disarm the colonists i.e. Lexington and Concord. Hence the framers of the Constitution and the Bill of Rights had a keen awareness of the political implications of armed vs. unarmed. Their intense last straw reaction to the British attempt to seize their arms was based on the realisation that a loss of arms meant that the colonists would be helpless. Helpless before the Crown, or the Indians, or bandits or anyone else who wanted to take a swipe at them. This condition of unarmed defencelessness and the subservience to any armed party that it implied was the match that set off the Revolution. It is also a major driving force in the current desire of many Americans to retain their arms.
In the colonial period, to men representing semi-autonomous states and very nervous about an over-powerful Federal Government, the right of individuals to arms was essential. Hence the need they felt to re-assert the individual right to keep and bear arms by including it in certain "declaratory and restrictive clauses" designed to prevent the Federal Government from any "abuse of its powers."