Comments on the Second Amendment to the Constitution

Comments on November 25, 2000

The text of the second amendment to the United States constitution reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shell not be infringed."

Strangely enough, when people talk about the second amendment, and "second amendment rights" it seems that only the second half of this is quoted, "the right of the people to keep and bear arms, shell not be infringed." However, it seems to me that if one is going to "protect" second amendment rights, then all the clauses of the amendment must be accepted and protected.

To me, this seems like a right to serve in the national guard, or the armed services rather than a right to private ownership of weapons. After all, it doesn't say, "For your own pleasure the right of the ..." or even, "so that people may hunt, the right of the ..." rather the talk is of a militia. This is a major departure from the popular belief about the second amendment, so I thought that I would make a study of this to see what the founding fathers, particularly James Madison who wrote the second amendment.

To be honest, it's a little late to ask Mr. Madison what he meant by this, so I have to see what I can about the thoughts that were running through his mind at the point where the amendment was written. To assertain his thought process I looked at my copy of volume 3 of The Annals of America, published by Encyclopaedia Britannica, Inc., published in 1976. This book consists primarily reprints of various historical documents. After reviewing these documents it becomes obvious that my interpretation is, in fact, correct.

In a letter dated July 31, 1788, Thomas Jefferson wrote a letter to James Madison which is reprinted in its entirety. Since this was written before the Second Amendment was written I will quote the portion dealing with the subject of armes, and armies. First, "But if such cannot be found then it is better to establish trials by jury, the right of habeas corpus, freedom of the press, and freedom of religion in all cases, and to abolish standing armies in time of peace, and monopolies, in all cases, then not to do it in any." (The context is an attempt to convince James Madison of the necessity of the a Bill of Rights.) Also,

If no check can be found to keep the number of standing troops within safe bounds while they are tolerated as far as neccessary, abandon them altogether, discipline well the militia, and guard the magazines with them. More than magazine guards will be useless if few, and dangerous if many. No European nation can ever send against us such a regular army as we need fear, and it is hard if our militia are not equal to those of Canada or Florida. My idea then is that, though proper exception to these general rules are desirable and probably practicable, yet, if the exceptions cannot be agreed on, the establishment of the rules in all cases will do ill in very few.

In another place in the same book it gives the original statement of the amendments that became the Bill of Rights. I have to note that this is not in the current form, as there were no amendments yet, so the amendments call for editing the Constitution as apposed to adding the amendments as notes on the back as is currently done. (That is, then document says, "drop this clause", "reword this clause", etc) The result is that I cannot give the "text" of the second amendment, only that portion of the document which became the second amendment. It reads, "The right of the people to keep and bear arms shall not be infringe; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." Again, note that the connection between military service and the "right to bear arms," even to the extent that the an exception is noted for those people who appose the use of force on religious grounds.

Similarly, on page 244 a picture of the "Senates working draft of the Bill of Rights." which shows an early version of the second amendment. Although the amendment has been crossed off, it is still clearly legible. "A well regulated militia, composed fo the body of the people, bing the best security of a free state the right of the Popele to keep and bear arms, shall not be infringed but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person." In this it can be seen that any "right to bear arms" is only conferred for the purpose of serving in the armed services. Also, the right of people to refuse military service due to a religious prohibition against military service is affirmed. (This latter point is eliminated from the final draft.)

Throughout all this, the right of the people to serve in the military is emphasised, but there is no mention of a right to own weapons outside of the military. Thomas Jefferson was, in fact, in favor of banning a peacetime military completely, with only enough people in a militia to keep thieves out of the military supplies. While in today's world this might be a bit extreme it does show that Thomas Jefferson's idea was not that people have a right to private weapons.

Comments on December 31, 2001

These are some additional comments on the subject of the second amendment. This does not main that I have changed my views, rather that I would like to further expand on what I have said.

The purpose of the second amendment is to ensure that people have the right to their own self defense. This self defense was to be part embodied in the "militia." The term "militia" as it was used in the late 18th century appears, from all my reading, to mean the state military. (Recall that the constitution was written as a document to unite 13 independent "states," each with its own military. However, also recall that the concept of a police force as we know it was not invented until the Scotland Yard was started in the early 19th century in England. Therefore, the police force idea did not exist in the minds of the writers of the bill of rights, so we have to infer the attitude toward that. I am not a historian, but I would tend to believe that the writers would have seen the police force as an arm of the state militia. (This is important.)

The net affect is this. The second amendment does not give people the right to own a gun and use it without regulation, even as a method of self defense. However, if one feels threatened, then it would be legal to go to the local police force (or national guard) and announce that you have decided to join. Note, this does not give you the right to collect pay, and you might have to supply your own gun, but the police force or national guard would be required to accept you (and you would be required to abide by their rules [the "well regulated" part]).

However, dispite all this, any law congress would pass to regulate guns is unconstitutional. The reason, I would hold, is not the second amendment, but rather the 10th amendment. That is, the only mention of arms is the second amendment, and the arms for the military. Since regulating arms falls into neither of these catagories, this is left to the states and local governments, and the people.

And this is reasonable. Why should I, as a citizen of Kansas, think that I should dictate how someone from Maine defends themselves? I have heard arguments that regulating guns makes people more safe, or less safe depending on the left or right wing leanings of the speaker.

This is not relavant to a national discusion, however, regardless of who is right. I very much doubt that the state of Wyoming, or many other western states, could make guns illegal. I'm from Iowa, and I really think it would be a bit of a struggle there because of the use of guns in hunting, and perhaps this would be the case in all 50 states, perhaps not. For that reason, the expectations of a few people that gunsj would be made illegal is unreasonable.

A member of the Supreme Court that the constitution was an "evolving document." Some people have rightfully made the point that if it is an "evolving document" then it is worthless because we would not be a nationed governed by law, but rather governed by the whim of a few people. I would add that we will have an "evolving document" as long as people are not willing to look into the minds, and especially the language, of the writers of the document. "If I use a word it means exactly what I say it means, not more not less" is an idea that needs to be applied to the writers of the constitution as well as me, personally.