February 2003
What Is the True Meaning of the Second Amendment?

The present confusion surrounding the Second Amendment is understandable; the text is over two hundred years old; the language is vague; and the final draft is the product of numerous contributors. However, we are fortunate to have a healthy record of the debate of the original authors. This record serves as the best course for understanding the true meaning of the amendment. During the ratification of the Constitution, the Founders promised that a list, detailing rights guaranteed to the people, would soon follow in the legislature. Over one hundred amendments to the original Constitution were proposed. James Madison authored many of these. Several of the most popular proposals limited the strength of a standing national army and extolled the virtues of a local militia. These were not new ideas; rather their roots were in the Articles of Confederation and several state constitutions, specifically Virginia’s, which Madison authored almost entirely.

Madison’s initial proposal, and the House Special Committee version of the amendment, included an important key to understanding the context of the much debated "keep and bear arms" phrase. It contained a conscientious objectors clause: "but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." This phrase clearly indicates that the term "bear arms" was meant in a strictly military sense and was written specifically in the context of militia duty. The Second Amendment was intended to protect the right of the states to maintain a militia and the right of that militia to keep and bear arms. Individual gun ownership was never mentioned in any evolving version of the amendment, and was never discussed in recorded debate.

Although the Second Amendment does not guarantee an individual right for gun ownership, the Constitution protects the right to own a gun under the Ninth Amendment. Like owning and driving a car, possessing a gun is a right that although not enumerated in the Constitution, does exist, and is subject to regulation. Whether one construes the right to personal gun ownership to descend from the Second or Ninth Amendment, the policy consequences are the same. However, under the Ninth Amendment, legislators can discuss regulations without fearing the constitutional consequences of "infringing" on the right to bear arms. In conclusion, one clarification must be made. Although the Second Amendment does assure the right of an armed citizenry to protect against the national government, nowhere does the Constitution issue the right to rise in armed rebellion against the government.

To understand whether the right to bear arms was meant as an individual or collective right, we must look not only at the amendment’s historical origins, but also at its linguistic roots. There are three constitutional moments of significance to the Second Amendment debate. The first significant moment is the English Bill of Rights of 1689, which secured the right to arms for Protestants. From William Blackstone’s Commentaries on the Laws of England we learn that the right to bear arms was the fifth auxiliary right to the three primary rights of personal security, personal liberty, and private property.

Second, understanding the language used in the United States’ Bill of Rights is essential to understanding its interpretive context. The first part of the Second Amendment, "A well regulated Militia, being necessary to the security of a free State," holds no legal requisite. There is no command or right granted by these words. However, the second clause of the amendment, "the right of the people to keep and bear Arms, shall not be infringed," contains the imperative and has legal validity. We must first understand the term "the people." Does it have a collectivist meaning or does it imply the individual? By looking within the Bill of Rights itself, specifically the First Amendment, the language, debate, and consequential judicial elucidation of the text, point to an individualist interpretation. There is no evidence that the Framers intended the usage of "the people" to be different in the text of the Second Amendment. Had Congress intended the amendment to be collective, referring only to a right within the context of the militia, then they would have adopted an amendment similar to the one proposed by Roger Sherman, which designated the right to bear arms as a right of the state. Further, when the final draft was passed through the more conservative, Federalist Senate, the House’s inclusion of a religious exemption was rejected, as well as a proposal to include common defense language. In both Federalist Papers 46 and 29, Alexander Hamilton and James Madison speak of the advantage of being personally armed, yet they also point out the need for regulation.

The third constitutionally historic moment arises from the events preceding and following the passing of the Fourteenth Amendment. Perhaps the most significant of these is Justice Roger Taney’s decision in the controversial Dred Scott v. Sanford case of 1856, in which he made two relevant points to the Second Amendment debate. The first point is the clarification that the words "the people of the United States" means citizens. And second, as citizens, there are certain rights maintained, including "their rights by force of arms." The Fourteenth Amendment itself holds conclusive evidence for an individualist interpretation, as its purpose was to apply the individual rights of the first two amendments to the states.

In conclusion, the text of the Second Amendment is not ambiguous and was never interpreted as a collectivist right until the 1960s. All existing sources and applicable judicial decisions read the Second Amendment as an individual right. However, there is a fallacy in the debate on gun control, the fallacy of an absolute right. There exists no such right in the Constitution. All rights are subject to reasonable regulation, including gun ownership.

In the debate over the context and application of the Second Amendment, it is necessary to examine three moments of our national narrative. The Constitution itself is a narrative to our nation’s growth and evolution. Instead of weaving amendments into the text of the Constitution, they were added in chronological order, in effect telling a story, similar to the sediments of a canyon wall, about public estimation in the times in which they were adopted. Likewise the meaning of the Second Amendment has evolved throughout history. The first moment in the narrative of relevance to this debate was the Founding. The original Second Amendment was very much a product of the revolution; the local men made up the amateur militia and became war heroes. The Founders were fearful of establishing a standing army similar to the British army. The amendment at its heart is a military one. It is not coincidental that it is followed by the text of the Third Amendment. Even the grammatical structure of the amendment indicates its military origins. The militia is ‘the people,’ ‘the people’ is the militia. The use of "the people" here speaks to the political people. The militia was not paid or professional, rather they were members of the general society obligated to serve, similar to the duty of citizen jurors. This concept of the militia does not exist today.

The second moment we must consider is the reconstruction period. Following the Civil War, Americans became more comfortable with the concept of a standing army. It was the national army that had defeated the loosely organized local militias of the South. The amendment began to hold a more individualistic meaning. Especially in context of the Fourteenth Amendment, which applied the first and second amendments to the states. The 1866 companion statute to the Fourteenth Amendment affirms laws concerning personal liberty and personal property, including the right to bear arms. Blackstone’s Commentaries had begun to be influential in interpreting the original intent of the Framers and the question of what Americans believed to be their fundamental rights began to emerge.

The answer to the question of fundamental rights may best be found in the third moment of the national narrative: state constitutions. Almost all state constitutions explicitly talk about a right to bear arms and apply it to personal use. These constitutions have for the most part been revised and rewritten in the last twenty years and offer the best barometer of current public belief that the right to bear arms is a fundamental, and individual, right.

As with every constitutional debate, when evaluating the true meaning of the Second Amendment, two popular camps of interpretation emerge: originalist and nonoriginalist. If one adopts an originalist interpretation, then he or she must ignore the importance and application of the Fourteenth Amendment to the Second Amendment. A more logical approach to understanding the Second Amendment is to use dynamic interpretation, a view that incorporates the full history of the interpretation of the amendment, not just the intent at a given moment in time. Using this method of understanding, one must look not only at the beliefs of a 1789 originalist, but also at those of an 1868 originalist. If one were to focus solely on what the original framers of the amendment intended, then Goldwin is correct in his evaluation. However, the authors of the Fourteenth Amendment changed the context of the Second Amendment, and presumably its understanding.

A more productive tool than original intent for understanding constitutional history is original understanding. Using this tool, what gives meaning to the text is not necessarily what the authors intended, but how it was interpreted and incorporated by those who adopted the law at the time it was passed. Throughout history, people have understood the Second Amendment to place more emphasis on individuals, not the development of the militia.

The majority opinion in Dred Scott, at the same time both horrible and significant, is key to understanding how the Second Amendment was interpreted prior to the Fourteenth Amendment. In his opinion, Justice Taney suggests that blacks could not be citizens because citizenship matters and comes with certain rights, one of which is the right to keep and carry arms. In the context of this decision, it makes no sense to interpret the right to carry arms in a strictly military sense. It more closely aligns with the rights of individuals. Taney was not an outlier in this interpretation. The Republican platform of 1856 referred to the protection of the right of the people to keep and bear arms, without mention of the militia. Further, the Democratic Party’s 1864 platform called for the end of the interference with the right of the people to bear arms in their defense. As always, the gun debate was robust. However, the consequences of individual gun ownership had a different meaning during the Civil War than it does now.

The Miller v. U.S. case of 1939 continues the dynamic interpretation. Miller was a landmark case that generated hundreds of other cases on the federal and state level, most of which provided a more limited and restrictive interpretation of the Second Amendment. It is essential that one’s understanding of the amendment should be more than an analysis of what those in the distant past thought it meant at one point in time. It is always necessary to discover what the language means in our own society, in our own time.

The question of whether the Second Amendment is an individual or collective right demonstrates that there is a fallacy of the excluded middle. When people discuss a collective right, it conjures up images of a state-run militia. When they speak of the individual, it portrays the picture of fairly atomized individuals using guns to hunt or protect their homes. Both of these images are incorrect. The Second Amendment never meant to restrict gun use to the militia. However, there is no evidence to support that the amendment has anything to do with hunting or protection. The excluded middle is the concept of a communitarian right, the vision of individuals possessing arms acting together as a community to protect themselves, if needed, from a tyrannical government. An individual would not make an effective revolutionary by himself, and it was never intended that he would. This in effect, answers the outlandish question of whether an individual has the right to bear a weapon of mass destruction. Such a weapon would allow one individual to become a tyrant and defeats the intention of the amendment

One final point centers on the treatment of the Second Amendment by both conservative and, especially, liberal scholars. Scholars on both sides of the political spectrum must allow for more serious study and discussion of the Second Amendment. Liberals believe in gun control, but they also firmly hold the need to protect individual rights. This creates a dichotomy in their discussion of the Second Amendment and often leads liberal scholars to avoid serious discussion of the topic. Conservatives on the other hand, especially originalists, try to avoid the topic because they embrace the Second Amendment. However, by doing so, they must accept what they cannot. The amendment takes very seriously the potential for sedition and armed rebellion against the government. Although the Constitution does not authorize rebellion, the document is a product of a revolutionary period and necessarily recognizes that there must be a legitimate amount of risk to the government in order to create and preserve a free society. One of those risks is to allow citizens of the nation to keep and, if need be, bear arms.