A Brief History of the Second Amendment

The Second Amendment was written in 1790 and ratified a year later. It reads just 27 words:

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.

Today, the meaning of these 27 words are highly disputed, often misunderstood and subject to heated debates among lawyers and citizens alike.

For over 200 years, the Second Amendment led a relatively quiet life. It was well understood by the courts, and was reaffirmed several times. Its meaning was not hotly contested, challenged in courts or even frequently debated compared to the meaning of free speech, equal protection, and due process, for example. The Second Amendment was universally believed to mean that states could form armed militias, or what we now call the National Guard, to address threats to the security of the state. And the citizens who made up these militias could own their own weapons for this purpose. Only a few cases ever reached the Supreme Court over the first 200 years of its life, and all affirmed this meaning of the Second Amendment.

Then in 2008, the Supreme Court in a 5–4 ruling overturned 200 years of precedent and decided that the Second Amendment actually confers the right of individuals to own guns.

Now the Second Amendment has become one of the most emotional and misunderstood amendments in the history of our government. It has become a beacon for gun-rights advocates, many who claim they would rather die than give up their Second Amendment rights.

What happened? What did those 27 words really mean when written by the Constitutional Framers and how did that meaning change from enabling armed state militias to protect the states in 1790, to conferring an individual right for personal gun ownership in 2008?

A brief history of the Second Amendment tells a fascinating story of America and its evolution over time.

The Militias

In the Colonial time before the American Revolution, militias were formed to provide security against threats to the local communities from Indians, French forces, insurrections and more. These were military forces drawn from citizens who were full-time farmers, shopkeepers, or craftsman that were expected to serve when called into the militia. They drilled regularly and were required to own arms, although many did not since guns were expensive to acquire and often difficult to keep in working order. They were an informal collection of citizens turned temporary soldiers out of necessity and often decided whether to engage in battle by a majority vote. Today they most resemble the National Guard, except they didn’t have uniforms, had to purchase and maintain their own guns, and often voted for their officers.

Massachusetts’ militias were the first to engage the British Army at Lexington in the Revolutionary War and gave them all they could handle. But as the war dragged on, local militias proved no match for the British Army. General George Washington continually scrambled to turn a patchwork of militias and citizen soldiers into a Continental Army that could compete against the British. They didn’t win many decisive battles, but were dogged, determined and with some help from the French were able to survive a war of attrition which taxed the British, ultimately leading to their defeat.

Following the war, there was tremendous skepticism and much debate among the states about creating a standing national army. They had just rid themselves of the British Army’s long occupation. Also, a national standing army was expensive to maintain at a time when the country was broke, and increased taxation not very popular. And it could cause domestic trouble as an instrument of the federal government against the states. A common thought was, “if you gave a king an army, he would find a war to fight.” Some of these concerns were confirmed following the war when the Continental Army was disbanded and armed former soldiers marched on Philadelphia demanding their back pay and pensions. Washington himself averted a potential military takeover of the government from former soldiers at a meeting in Newburgh, NY in 1783.

As the Constitution was being drafted, there was much debate and discussion of a standing army versus a collection of militias to handle national security. Ultimately, it was decided that there would be no standing army, but a military composed of local militias that would be “on call” on an as needed basis by Congress and commanded by the president for a maximum of 2 years.

The security of the new country would rest on local militias who would be called up to form an army when needed. And the militias would also act as a potential defense against the threat of an overpowering federal military, should one be required. This decision led directly to the Second Amendment.

The Bill of Rights

Following the Constitutional Convention in 1787, the initial draft of the Constitution was distributed to the states for discussion and ratification. The response was less than enthusiastic. Most of the states felt the new Constitution levied too much power to the federal government at the expense of the states. One of the concerns not addressed in the initial draft was the state’s ability to form and arm a militia to address their needs for security. At this time there were no police or other traditional law enforcement in the states. Some groups were formed to address specific threats such as runaway slaves or unruly immigrants, but the militia was considered essential to public security of the states. And it needed to be armed to be effective.

A few states ratified the Constitution as is, but others ratified it while also suggesting changes or amendments, including that it incorporate a “Bill of Rights” that protected some essential rights from intervention by the federal government. After debate and discussion in the new House of Representatives and the new Senate, Congress agreed to a Bill of Rights that included 10 constitutional amendments including freedom of speech, right to assemble, freedom of religion and the press, right to trial by jury, freedom from unreasonable searches and seizures and more.

The Second Amendment

The Second Amendment in the Bill of Rights dealt specifically with the militias and the right to bear arms:

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.

When read today, a more confusing 27 words is difficult to imagine. What is a “well regulated Militia”? Why do they specify that it is “necessary to the security of a free State”? Does a “free State” mean a free America, or a free Virginia and New Jersey? Why have a preamble at all? None of any of the other Bill of Rights contain one. If “the right of the people to keep and bear Arms” means all the people can keep and bear arms, then why mention the militia and a free state at all?

Furthermore, what is meant by the “right” which shall not be “infringed”? Does this mean it can’t be regulated or limited in any way or subject to laws? All rights have limits. You have a right to free speech but it can’t libel or slander anyone or be hateful or incite a riot. You have the right to drive, but need to be of age and have a valid license and obey the rules of the road.

Finally what is meant by “keep and bear Arms”? Does that mean one can keep it and brandish it openly when needed?

We could argue endlessly about the meaning of each of these terms, but the Framers of the Constitution used an older English language and different terms than we do today. It was clear to them what it meant, they never proposed editing or clarifying it, and the judicial system ruled on it pretty consistently for over 200 years. So they seem to have understood what it meant.

Bearing Arms

The term “bear arms” has been the subject of numerous research efforts by constitutional scholars. Legal scholar David Yassky, researched the term “bear arms” in the Library of Congress database containing all official debate records between 1774 and 1821. The term “bear arms” or “bearing arms” was used 30 times in debates during that period, and all of them clearly referred to a military arming itself, not an individual.

Another legal scholar researched newspaper articles, books and pamphlets from the period and found “bear arms” referred to a military context 202 times, versus 8 times referring to a non-military context.

A search of the National Archives database on the writings of the six key founders (Washington, Madison, Hamilton, Jefferson, Adams and Franklin) shows “bear arms” used 153 times, each referring to a military context or repeating the Second Amendment and not claiming an individual’s right.

Despite high hopes of state militias protecting the new country, militias quickly proved incapable of defending the nation against attacks. In 1792, Congress passed the Uniform Militia Act, which required all white men between 18 and 45 to enroll in the militia and required them to own a gun and ammunition for it.

In 1794, when President Washington mobilized 15,000 militiamen to put down the Whiskey Rebellion against a tax of whiskey, most of the militiamen did not have guns and the government had to provide them. In the War of 1812 with Britain, 7,000 militiamen could not stop the British from invading Maryland and burning down the White House. A standing national army would soon be formed.

Clarifying the Second Amendment

In the early 1800’s, violence rose in the west and south, and states began to pass their first laws regulating guns and concealed weapons. Some argued that “a right to bear arms” meant individuals could carry weapons however they wanted for individual protection. Even at this time, just 20–30 years after the Constitution was written, people were probing and the courts were clarifying what the Second Amendment meant.

In 1820, a Kentucky state court overturned a law barring the carrying of concealed weapons. Around the same time, an Arkansas court ruled that the Second Amendment only protected militias. In 1840, the Supreme Court clarified things with a ruling saying, “the object, then, for which the right of keeping and bearing arms is secured, is for the defense of the public.” And that, “bear arms” was understood to have a military meaning, not an individual right. Individuals using guns to hunt, or carrying a concealed pistol would not be characterized as “bearing arms.”

The Supreme Court would revisit the Second Amendment again in 1876, US v. Cruikshank, regarding an ugly episode where white and black militias battled in Louisiana over the outcome of a state election. 100 black men were killed, many after they had surrendered. Two white men were also killed. Federal prosecutors charged the white men with violating the civil rights of the black men, including their right to bear arms since they took away their weapons. Three white men were convicted, and appealed. The Supreme Court overturned the convictions, ruling that the Second Amendment and the rest of the Bill of Rights only applied to Congress and the federal government. So Congress could not infringe on the right to bear arms for a well-regulated militia. And the Bill of Rights and the Second Amendment did not apply to the states, which set criminal laws. In spite of the Bill of Rights protections, the states were free to do as they wished. There was no mention in this ruling whether the Second Amendment conferred an individual right to “bear arms” or only in a military context.

Following the Civil War, firearms became more common as former soldiers and others acquired guns. Over the next 50 years as large cities emerged and the country industrialized, America became a very violent place. President Lincoln was assassinated in 1865. Two other presidents were assassinated in 1881 and 1901, and a third was shot in 1912. Gun laws were crafted to control the violence, particularly in the big cities. In 1911, New York City passed a gun law that required a license to own a gun (granted by the police department), and made it a felony to carry a concealed gun outside the home. Within 10 years, similar laws were passed in 10 other states.

Many of these gun laws were challenged in court. In 1886, the Supreme Court heard Presser v. Illinois, which involved an armed private militia facing off against a newly created state National Guard. The private militia argued for their right to bear arms and be regarded as a militia under the Second Amendment. But the court ruled that the state was within its rights to choose which militia would represent the state’s interests. It also reaffirmed that the Second Amendment did not apply to states, but also that states could not pass laws that would “prohibit people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.” So states could pass gun laws, but not interfere with the federal military need.

In 1894, in Miller v. Texas, a defendant claimed that the state’s law prohibiting the carrying of weapons interfered with his Second Amendment right. The Supreme Court disagreed, ruling, ”We have examined the record in vain, however, to find where the defendant was denied any of these provisions.”

Prohibition and new high capacity, rapid-fire machine guns developed during World War I sparked a new wave of violence in the 1920’s and early 1930’s. Criminal gangs battled for control of illegal liquor sales, and then moved into robbing banks. New President Franklin Roosevelt ended prohibition and passed the National Firearms Act of 1934, which imposed a heavy tax on the most popular criminal guns, required that machine guns and sawed-off shotguns be registered, and prohibited their transfer across state lines. In 1938, the administration tried to expand the law to all guns, but gun owners and the NRA protested. The final bill banned interstate trafficking in guns without a license.

That law was challenged and upheld by the Supreme Court in United States v. Miller in 1939, a landmark decision examining and clarifying the Second Amendment’s intent in detail for the first time since it was written. A unanimous ruling upheld the National Firearms Act, stating that without evidence that a sawed-off shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” The ruling continued, “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” The Miller decision identified the Second Amendment’s origination to the need to arm militias due to lack of a standing army, and its test for which weapons could be banned was based on their military usefulness in the current world, not that of 1789.

Up to this point, the Supreme Court had directly considered the Second Amendment four times, and had never found an individual right to gun ownership in its 27 words. The Second Amendment was well understood by most and not debated nearly as much as the right to free speech, due process or equal protection clauses. But that was about to change. A new school of constitutional interpretation was emerging that would soon find meanings in the Second Amendment that had somehow stayed hidden for over 200 years.

Part 2 of “A Brief History of the Second Amendment” will cover the next 50 years of the Second Amendment, and its role in dramatically changing gun rights in America.

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Sources:

The Second Amendment: A Biography. Michael Waldman

Almost a Miracle: The American Victory in the War of Independence. John Ferling

Constitute: https://www.constituteproject.org/

American Enlightenment Project: https://americanenlightenmentproject.org/articles/

Federal Judicial Center: https://www.fjc.gov/

Bureau of Alcohol, Tobacco, Firearms and Explosives: https://www.atf.gov/rules-and-regulations/national-firearms-act

The Atlantic, The Supreme Court’s Worst Decision of My Tenure: https://www.theatlantic.com/ideas/archive/2019/05/john-paul-stevens-court-failed-gun-control/587272/

US Census Bureau: https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural/ua-facts.html

New York Times: ‘It’s a Long Story’: Justice John Paul Stevens, 98, Is Publishing a Memoir: https://www.nytimes.com/2018/11/26/us/politics/john-paul-stevens-memoir.html

Violent death rates in the US compared to those of the other high-income countries, 2015/2019. Erin Grinshteyn, David Hemenway: https://repository.usfca.edu/cgi/viewcontent.cgi?article=1147&context=nursing_fac