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Interpreting the Second Amendment, An Introduction

The Second Amendment in the Bill of Rights was melded together from several proposals and simplified into twenty-seven words. This brevity is often blamed for the enigmatic meaning that has fueled the recent debate on guns, government, and individual rights. Lawyers, judges, historians, and political scientists delve repeatedly into the 18th century world of the Framers in attempts to ascertain the intended meaning of the Second Amendment.

There are several opposing interpretations of the Second Amendment. For some, the amendment is strictly martial and should be seen as ensuring the continued funding and arming of state militias. Others see the militia clause as a utopian ideal that only amplifies a direct right of the individual to keep and bear arms. Other variations range from reading a right to revolution in the amendment to dismissing the amendment entirely as obsolete and outdated for the twenty-first century.

The recent Supreme Court decisions of District of Columbia v. Heller, 554 U.S. 570 (2008 – Opinion PDF) and McDonald v. Chicago, 561 U.S. 3025 (2010 – Opinion PDF) specifically addressed two of the most contentious interpretations of the Second Amendment. In District of Columbia v. Heller the individual ownership of guns for self-defense was recognized as a Second Amendment right by the Supreme Court for the first time. In 2010, McDonald v. Chicago then added that the Fourteenth Amendment incorporated the Second Amendment extending the amendment’s reach to state governments. Both of these decisions were split five to four and dissenting opinions highlighted the difference in interpretations of the Second Amendment that persist. While it is expected that these rulings will remain as precedent for some time, the history and debate about the Second Amendment continues. Indeed, if history has taught us anything it is that this amendment has not been easily or clearly defined since its ratification under the Bill of Rights.

Originalism and History

One of the difficulties in interpreting the Second Amendment is deciding which sources to use for analysis. In part, the choice in sources depends on a scholars training and background. Lawyers and judges often focus on the amendment in one of two ways: original intent or original meaning. Both methods are focused on finding the correct legal interpretation. Original intent concentrates on the word choice, word placement, and, sometimes, drafts of the amendment as it made its way through legislation. The focus on original meaning includes a broader spectrum of primary sources to elucidate the context and understanding of those writing the amendment. Popular sources include records from ratification at the state level, popular opinions from Framers such as The Federalist Papers, and private correspondence from key figures like James Madison. At times, the longer legal and legislative tradition from England may also be discussed to further clarify meaning. Historians often add even more sources using a wider range of documents from both before and after ratification in attempts to gain a picture of the overall context of the late 18th century. This broader stroke can help inform how the amendment was understood but can include interpretation beyond the intended meaning of the Framers.^[2] Nonetheless, historians find viewing the amendment in this full context more informative than restricting sources to a single moment that cannot be pinpointed with certainty. The very idea that there is a singular "truth" is both limiting and unrealistic and runs the risk of fabricating a monolithic meaning instead of embracing the disparate opinions that existed even when the Bill of Rights was drafted. Everyday people often countered the ideal (and some may argue elite) expectations of the Framers. For example, our forthcoming article on popular rebellions will show that many "rebels" thought they were following the mandate of the Second Amendment. While falling outside the direct legal interpretation, these populist views are still informative and highlight the multiple interpretations of the amendment even as it was being ratified. Both approaches have created a large library of material for understanding the Second Amendment.

In addition to sources used, the approaches taken by lawyers and historians often differ. Lawyers examine the Second Amendment looking for an exact interpretation while historians are content discussing the "grey areas" with the prospect that not all explorations lead to a definitive resolution. These expectations often influence how these scholars use their sources. While both aim to argue a particular point of view, attorneys are trained to prove a case. This has led to accusations of cherry-picking quotes or highlighting minority opinions until they appear to speak for a majority.^[3] Alternatively, historians have been accused of the same. Proving one's thesis has even led to accusations of evidence fabrication and misuse as exemplified in the controversy around Arming America: The Origins of a National Gun Culture by Michael A. Bellesiles.^[4] Additionally, primary sources are interpreted in their historical context by both lawyers and historians. However, law and legislation become active/living documents for lawyers and court decisions are used outside their direct historical context. The opinion of a court can easily stand as good law for half a century or longer. Historians are more likely to push for the reexamination of court decisions in their immediate context highlighting popular reactions to a ruling rather than focusing solely on the judicial interpretation. Neither of these approaches are incorrect and both create a rich debate. But an awareness of these differences is useful for navigating the sources and conclusions as one delves into this controversy.

Indeed, whether lawyer, historian, or political scientist, accusations of bias and agendas abound. A scholar's training does influence the way they use sources or present a thesis. However, despite these differences in scholarship, there are real problems with bias when interpreting the Second Amendment. All scholars struggle with understanding the 18th century context and must be vigilant against imposing current ideals and perceptions on the past. Contemporary debates can also seep into past interpretations or influence the selection of sources towards a predetermined conclusion. Especially with the Bill of Rights, there is the danger of "rights-talk" with its "exaggerated absoluteness" that not only limits modern discourse but influences the study of the amendment to exclude any consideration of alternate or even concurrent interpretations.^[6] Inflammatory and narrow labels are often used to further accentuate difference over compromise. For example, an author may set up the debate between gun-rights activists against "gun prohibitionists" which suggests an all or nothing dichotomy.^[7] Finally, both gun-rights and gun-control political groups have funded research which perpetuates the idea that there are only two viewpoints available and also suggests an automatic bias in the scholar.^[8] The political motivation and economic self-interest of some of these financial backers suggests both scholars and their audience should fine tune their critical thinking and analysis when researching the Second Amendment.

Despite the challenges of bias, the rich selection of sources and variety in scholarship have created several angles for interpreting the Second Amendment. In order to better evaluate the meaning of the Second Amendment it is necessary to understand perceptions of citizenship, power, and liberty in the 18th century. A review of the historical context for the Bill of Rights which follows will provide the background behind some of more common interpretations of the Second Amendment. This introduction attempts to summarize some popular ideas and should not be considered all-inclusive or absolute. The rich scholarship on the Second Amendment shows consistently that even the Founders did not agree on one interpretation.

The Second Amendment in Context

Second Amendment scholarship has highlighted several political ideals and historical experiences behind the citizen militia and the armed citizen. The works of Niccolo Machiavelli are credited for invoking a republican ideal that was expanded by later authors such as James Harrington, John Trenchard, Thomas Gordon, and Walter Moyle (to name a few).^[9] These ideas were fueled by the historical experiences in England that transferred questions of sovereignty and safeguarding rights to the new colonies in America.

Early modern republican ideals centered on virtuous citizens who preserved a just government. Machiavelli promoted the citizen-soldier as superior to standing armies because they were loyal to their communities and thus more fierce in protecting their homes. Soldiers who sold their services to the highest bidder, were susceptible to corruption, and could be used by tyrants to oppress others. The virtuous citizen-soldier was willing to take up arms to protect the state and would return to civil occupations after a threat was defeated. Their prowess would make standing armies and their corruptible soldiers obsolete. This ideal mirrored the highly romanticized view of Republican Rome where mythical men like Cincinnatus put down the plow to engage the enemy but then humbly returned to the farm when their civic role was done.^[10] Later political theorists like Harrington associated these heroes with the 17th century yeoman farmer who likewise courageously left the field when called to service. These yeomen were property owners which Harrington thought would make them independent from the coercion of landlords and employers. This independence meant they could provide the self-governing voice required of citizens in a strong state.^[11]

The idealized English yeoman farmer offered a tangible example of the citizen-soldier for political theorists. Since 1181, the Assize of Arms under King Henry II required knights and freemen to arm themselves in service to their king and country.^[12] These freemen not only served in the King's wars but also protected their communities and were drafted into the sheriff's posse comitatus as needed.^[13] Over the centuries the types of arms required of militiamen changed with the technology but they were expected to only supply weapons and armor that matched their social status. This structured militia, that included a wider breadth of Englishmen, was praised by theorists like Machiavelli and Francis Bacon for keeping England secure and enabling the Crown's victories on the continent.^[14] However, by the 17th century some complained the yeomen militia shirked their duties and left their defence in the hands of tradesmen and laborers in select militias. Even after the Restoration in 1660, Charles II's volunteer militias were better organized than the general militia.^[15] James II later argued that he needed to retain the army since the general militia was not up to task.^[16] However, James II's promotion of Catholics contrary to the Test Acts, including promoting Catholic officers in the military, helped inspire the Glorious Revolution which ousted the Catholic monarch in favor of the Protestant William of Orange and Mary in 1689. Both were required to sign a Declaration of Rights by Parliament which acknowledged that James II had wrongfully kept a standing army "in time of peace" and caused "several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law." It also declared that, "subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law."^[17]

The meaning of the arms clauses in the English Declaration of Rights of 1689 is also contested when used to interpret the English legal influence on the Second Amendment. For some, the declaration did not grant any new privileges but ensured the return of control to the Protestant majority. Although the "ancient rights and liberties" included some access to arms, these were still determined by law and social status which included civic expectations and limitations.^[18] Others argue the use of "their defence" instead of "their common defence" means the right to arms included self-defense separate from a specific civic duty.^[19] The armed citizen could act for the greater good but also independently respond to protect his person, property, and liberty.

The armed citizen, although not necessarily exclusive from the citizen-soldier, was a free man because he recognized he was responsible for protecting his freedom. Machiavelli noted that just as states exist by arms or fortune, so it is with the citizens who are trained in arms.^[20] Trenchard and Gordon, like Locke, note self-defense as a natural right that justifies the armed citizen who uses force to defend his liberty against unjust tyrants and governments.^[21] Both roles work together to protect society and the state: the armed citizen protects his own which instills a love for liberty and expands his knowledge of arms and his rights which in turn ensures his response as the citizen-soldier for a just government. However, for some political theorists, both libertarian and republican, the English yeomen were too complacent to match this ideal and they instead looked to the American colonies where "an agrarian society of armed, self-sufficient husbandmen" flourished.^[22]

The circumstances of colonial living impacted the expectations for armed citizens. Several 17th century statutes required adult males to keep arms for militia service similar to the laws in England.^[23] But changes in England prompted laws like the Game Act of 1671 which banned guns (at least on paper) for those with less than £100 in property value. Conversely, the colonists were required to arm and efforts were made to ensure they were supplied. Even after Bacon's Rebellion in 1676, Virginian colonists were still allowed to keep arms.^[24] By 1684, the militia statute in Virginia specifically protected militiamen from the confiscation of their weapons such as arms taken in "disstresse" (payment for money owed) or impressed for service.^[25] Circumstance did create different expectations of armed citizens than in England, however, access to arms was still not universal. Some colonies barred indentured servants and non-Protestants from owning firearms while race also outlawed guns to Native Americans, free African Americans, those of mixed decent, and slaves. Over the next century these statutes continued to change as colonies expanded and urban centers developed. By the time of the Seven Years' War/French and Indian War (1754-1763) the militia were still viable but considered inadequate for the scale of the war and Britain increased the presence of the standing army.^[26]

The standing army in the colonies became a focal point of tension at the same time taxes to pay for the war incited protest. The use of army soldiers to police the population escalated tensions and the Quartering Act of 1765 forced colonists to house and feed these military police in their communities. During the Liberty Riot (1768) Boston residents rallied against the British sailors acting for the port authority which lead to a munitions ban and the confiscation of some arms.^[27] For many colonists, the threat of military oppression was dramatically realized in the Boston Massacre of 1770.^[28] In addition to the confiscation of arms in hotbeds like Boston, efforts were also made to disarm militias or render them obsolete.^[29] Colonists mustered militia companies in spite of these efforts which famously came to a breaking point with the "shot heard 'round the world" at Lexington and Concord in 1775.

During the American Revolution the rhetoric praising the militia as the answer to standing armies continued but was again tempered by the realities in the field. At the start of the war several states edited their charters and constitutions to include a Declaration of Rights that promoted the militia as the natural protector of liberty. However, the experience on the battlefield was mixed and General George Washington often found militiamen inefficient compared to the Continental soldiers.^[30] Washington defended the necessity of developing an army in a letter to the Continental Congress in 1776 where he noted that, "To place any dependence upon Militia is, assuredly, resting upon a broken staff."^[31]

There was a mixed response to the realities of relying on militias and the citizen-soldier after the Revolution as well. Washington experienced firsthand the struggles of working with militiamen but agreed they could be valuable if given enough structure:

"It may be laid down as a primary position, and the basis of our system, that every Citizen who enjoys the protection of a free Government, owes not only a proportion of his property, but even of his personal services to the defence of it, and consequently that the Citizens of America (with a few legal and official exceptions) from 18 to 50 Years of Age should be borne on the Militia Rolls, provided with uniform Arms, and so far accustomed to the use of them, that the Total strength of the Country might be called forth at a Short Notice on any very interesting Emergency, for these purposes they ought to be duly organized into Commands of the same formation; (it is not of very great importance, whether the Regiments are large or small, provided a sameness prevails in the strength and composition of them and I do not know that a better establishment, than that under which the Continental Troops now are, can be adopted."
-- George Washington, Sentiments on a Peace Establishment, May 2, 1783^[32]

Washington was not alone in the belief that citizens "owed" service to their country which, as outlined above, was a central characteristic of the republican citizen who served the community good over personal gain. But defining what was good for the community often differed and conflicts of interest impacted the efficiency of the militia. Shay's Rebellion (1786-1787) pitted urban interests against rural economies and some of the militia sent to suppress the rebellion sided with the rebels' cause instead. Both the rebels and their militia sympathizers believed their actions a just response to oppression while city and state officials bemoaned the lack of respect for the legal process and government.^[33] Shay's Rebellion was not the only event to highlight the disorganization and insubordination of local militias but it did galvanize the efforts to form a central government under a new constitution that could maintain stability for the new country.^[34]

The contentious ratification of the U.S. Constitution highlighted the continued concern for establishing and arming strong militias. Central control over the state militias in Article I Section 8 of the Constitution aroused suspicion and Anti-Federalists argued that the government could dismantle or weaken the militias in favor of a standing army.^[35] At the same time, the exclusion of a declaration of rights became a rallying point for Anti-Federalists who maintained that an enumeration of rights was principle to safeguard liberty under imperfect governments. The rights to arms was among the liberties listed and the Pennsylvania minority published their dissent which included:

"7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers."
-- Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787 ^[36]

Federalists argued that a declaration of rights was not necessary for the national government since these rights were already protected by state constitutions. Although not against a bill of rights, James Madison thought these "parchment barriers" could be limiting and unnecessarily threaten fundamental rights omitted from the document.^[37] Additionally, the Constitution was considered unique since the people were granting power to the government and therefore did not require declarations of their rights from a government obligated to them.^[38] But the insistence by Anti-Federalists on the inclusion of rights was popular and, in the end, ratification of the constitution in several states hinged on the assurances that a bill of rights would be considered by the first Congress. States forwarded their proposals for amendments which included several versions concerning the right to bear arms.

The experiences of Americans combined with the ideals expressed in political thought and the English legal heritage promoted the republican ideal of the citizen-soldier who not only protected the government when mustered but also protected freedom. The balancing and melding of all these ideas and experiences fell to the first Congress when they created the Bill of Rights.

Composing the Second Amendment

The Bill of Rights was composed and then edited down from over a hundred proposed amendments submitted to the first Congress after the contentious ratification of the U.S. Constitution.

Rights in State Constitutions

As noted above, several variations of a Declaration of Rights were created by state governments before the U.S. Constitution was written. Eight states would add a Bill of Rights or Declaration of Rights to their state constitutions after the start of the Revolutionary War.^[39] These declarations were well known and influential in phrasing the Second Amendment. Some, like Virginia, included an amendment which focused on the role of militia in retaining civic authority and preventing standing armies. Massachusetts stated the people had a right keep and bear arms for the "common defence" which was interpreted by some contemporaries as too vague for not explicitly protecting the personal right to bear arms for self-defense.^[40] Most states followed the language stressing the militia similar to Virginia and Massachusetts. The Declaration of Rights for Pennsylvania and Vermont were two that explicitly protected the right of individuals to keep arms for their individual protection in addition to the defense of the state. Thus, even before the Bill of Rights was drafted, several versions and expectations for rights to arms were already enacted by the states.

Amendments Submitted to Congress

Five states submitted right to arms provisions to be considered by the first Congress. These states included New Hampshire, New York, North Carolina, Rhode Island*, and Virginia.^[44] These state recommendations often mirrored their own state Bill of Rights except for New Hampshire which added the provision that Congress could not disarm citizens unless they were guilty of "Actual Rebellion."^[45] It is possible that Madison reviewed these suggestions but, of those listed above, only the submissions from New Hampshire, New York, and Virginia were noted in the official congressional record. Most agree that Madison closely followed the recommendations from his home state of Virginia when composing the Bill of Rights. Virginia's recommendations included a Bill of Rights that protected:

"Seventeenth, 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....Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead."

Virginians also included changes to the body of the Constitution including:

"Eleventh, That each State respectively shall have the power to provide for organizing, arming and disciplining it's own Militia, whensoever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State."^[46]

The concepts outlined in these state declarations of rights and amendments to the Constitution all stressed the importance of the militia in a free state. A robust militia organized from "the people" prevented the permanent development of a standing army and was the surest way to protect freedom. By the time Madison submitted the proposal to Congress he had shortened several ideas into one:

The mistrust of the central government was raised in the Congressional debate about this amendment on August 17, 1789. Representative Elbridge Gerry from Massachusetts objected to the inclusion of the clause protecting religious objectors because he was concerned the government would then "declare who are those religiously scrupulous," and effectively disarm political opponents.^[48] His objection was narrowly defeated by two votes in the House but this clause was later removed after the Senate debate.^[49] Some suggest the effort to protect religious objectors highlights the focus of this amendment on the duty expected of every citizen. However, others retain that the concern was to ensure a more general right to arms beyond any civic duty.^[50] Contemporary debates highlight the difficulty in discerning the exact meaning of these carefully phrased amendments. Indeed, the debates from 1789 show there were concerns the amendments would be misunderstood or even deliberately misconstrued. They also illustrate that agreement over the intended meaning and ideology was never absolute even as the Bill of Rights was written.