2nd Amendment and the Militia
by Cornel Rasor
Often, the misinformed will assume that only the people who are in a militia are guaranteed the right to keep and bear arms. This comes from an incorrect reading of the Second Amendment which 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”. For some reason these folks assume something about article 2, also known as the Second Amendment, that they do not apply to several other articles that are worded very similarly.
The first thing to keep in mind is that the Constitution itself is in an enumerative document. That is, it was designed to be a list of things that the creation of the states would have the authority to do. That creation, the national or “federal” government would be limited in its scope and unable to step outside of the boundaries placed around it by the document known as the Constitution.
Indeed, Madison, in Federalist #45 explained that the federal government would have few and defined responsibilities, primarily extending to external objects:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
With this as a preface, we shall see how some misguided souls misuse the phrase “the people” when they attempt to dismantle the freedoms that the Second Amendment guarantees.
Articles 1, 2, 4, 9 and 10 all refer to “the people” and in every case they mean just that. There are no qualifiers. Amendment 2 according to the debates and the states submissions could read “Because a well regulated militia is necessary to the security of a free state…”
Further, the 2nd amendment is primarily to protect against federal tyranny (and to prevent the creation of a standing army when coupled with article 1 section 8 which section(s) will be detailed below).
Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.”) And further it was to confirm the enumeration in Article one, Section 8, Clause 15 of the only responsibility the federal government was given over the militia. This article, section and clause creates the ability for the federal government to call up a militia and when compared with Article 1, Section 8, Clause 12 which only allows appropriation of monies to supply an army for a period of two years clearly prevents a standing army. The founders had no intention for the national government to have a standing army.
“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of 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 pretence, raised in the United States.” –Noah Webster, An Examination of the Leading Principles of the Federal Constitution, 10 October 1787
Federalist #29 Concerning the Militia
By thus circumscribing the plan, it will be possible to have 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.”
Federalist #46 again
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”
“A militia when properly formed are in fact the people themselves…and include, according to the past and general usage of the states, all men capable of bearing arms… “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” – Richard Henry Lee, Federal Farmer No. 18, January 25, 1788
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams, Massachusetts Ratifying Convention, 1788
“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” – Rep. Elbridge Gerry of Massachusetts, I Annals of Congress 750, August 17, 1789
“[I]f 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.” – Alexander Hamilton, Federalist No. 28, January 10, 1788
Militias were composed of “the people” and so that is why the verbiage is such. Whether they were in the militia or not was inconsequential.
Tench Coxe, Delegate to the Constitutional Convention of 1787: “The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom.
Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. “
This statement clearly implies that the people should have at their disposal the same weapons that the military would have. Two years later writing for a newspaper, Tench Coxe said:
“As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” – Tench Coxe, Philadelphia Federal Gazette, June 18, 1789
Moreover, George Mason, the co-author of the 2nd amendment said:
“I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” – Speech in the Virginia Ratifying Convention, June 14, 1778
It is also important to remember that when the founders used the word “State” they were referring to nations and that is indeed what they believed each colony would become when they won their freedom from Great Britain. At the time of the founding the 2nd amendment would have been clearly understood as applied to a nation.
From the Unanimous Declaration (commonly known as the Declaration of Independence)
“That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
Thus, the nation of New York advocated to the constitutional convention that her people would never be debarred the right to keep and bear arms:
“We, the delegates of the people of the state of New York, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the 17th day of September, in the year 1787, by the Convention then assembled at Philadelphia, in the commonwealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately considered the present situation of the United States,— Do declare and make known,—
“That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence era free state.”
When the states signed the compact known as the constitution, they delegated (different from surrendered) certain enumerated powers to their creation – the new national government – but they never intended to lose their unalienable rights.
Much more is available to bolster the rights of the people but we must also remember that these rights are natural God-given rights and do not emanate from a document. Our constitution is simply our rule of law that guarantees these already extant rights. It does not grant them.