Second Amendment Fallacies
by P.A. Madison on September 28th, 2010
Summary: The Federal Second Amendment serves as a “dogmatic maxim” that says well-armed militias of the people are preferred over standing armies during peace for security of a Free State.
I wanted to take the opportunity today to add some late commentary over the recent court holding in McDonald v. Chicago that extended the protection of an “individual right to possess a firearm unconnected with service in a militia” against state infringement which had been an open question since the earlier gun case of District of Columbia v. Heller. Specifically, I want to address the obvious errors of fact used to support an “individual right to possess a firearm unconnected with service in a militia” under the Second Amendment in these decisions.
Before I do, I want to add the disclaimer that I am not arguing for or against particular gun laws but only arguing gun laws, no matter how wise or foolish, are not in any way applicable to the Second Amendment. Owning a gun for personal purposes is different to the purpose of bearing arms as part of the military power of a State, which was compelled by State law and punished for refusal in early times.
Additionally, State courts rulings will be given little weight for the reason State courts have a history of inconsistent interpretations over the extent of “bear arms” found in State constitutions (most all dealt with self-defense provisions, something the Second Amendment does not speak of). Furthermore, we see no later changes in statutory treatment of bearing arms after particular court rulings, leaving us to conclude such cases had little influence on public meaning.
The first error I will address is the one that treats the Second Amendment as though it confers a right directly to people of the States. The federal bill of rights, and specifically the Second Amendment, did not confer anything to the people in terms of individual rights and freedoms for the simple reason they already possessed such rights through their own sovereignty under their own constitutions. It was the States with the approval of the people who gave to the new federal government and not the other way around.
Instead of serving as an individual right, the Second Amendment served as one of the “dogmatic maxims with respect to the construction of the Government” by James Madison.
Amendments were asked for and offered only to calm anti-federalists fears over future claims of national power to do such things as establish and compel worship to a national religion (in return preventing the “free exercise” of religion), enact laws of seditious libel, or disarm and replace State militias with a national standing army, etc. George Mason complained “[t]here is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in time of peace.” Thomas Jefferson also complained of a missing security against the threat of a standing army to Madison.
No complaint can be found of a missing right for individuals to own a gun.
Tench Coxe remarked about the “apprehensions of the people have been excited, perhaps by persons with good intentions, about the powers of the new government to raise an army.” James Madison said standing armies during peace were “the greatest danger to liberty.”
At the time of the adoption of the Constitution, at least half the states included a declaration that said standing armies during peace were dangerous to liberty and ought not to be maintained alongside the constitutional right to bear arms. Example: Vermont, 1777, “that the people have a right to bear arms, but no standing armies shall be maintained in time of peace.” Other common examples were; “The people have a right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated.”
The Declaration of Colonial Rights of 1774 laid out fundamental rights belonging to Americans, such as trial by jury, right to assembly for petition of redress of wrongs, entitlement to all the immunities and privileges granted and confirmed by royal charters and entitlement to life, liberty, and property. Nowhere was there any mention of any private right for people to own a gun.
However, the Declaration of Colonial Rights does mention standing armies three times; making clear the keeping of a standing army in the several colonies in time of peace was “against law.”
Perhaps no man explained the relationship between the Second Amendment and standing armies better than William Barnes did during the 1878 Constitutional Convention of the State of California:
In addition to that, I find in article two a declaration that a well-regulated militia, being necessary to the security of free States, the right of the people to keep and bear arms shall not be infringed. Now, we know that this question was considered a very important one in the early organization of the government, and it is no less important now than it was then, because the people had their choice then as they have now between a well-organized State militia in the several States and a standing army maintained by the central government, which, under our system of republican institutions, has always been considered an enemy to liberty, and when the people had their choice between maintaining a large standing army, maintained by the General Government as the great armies of Europe are maintained, at a vast cost to the General Government and to the people, they determined upon the plan which now exists, that is to say, to provide for the organization and equipment of a militia force.
Coupled with the denouncement of standing armies, and the fact State constitutions only speak of bearing arms for purpose of “defense,” makes clear State arms-bearing provisions were designed to place the military defense of the State in the hands of the people themselves in order for there to be no justification for maintaining standing armies where soldiers could have no allegiance to the State.
This all goes to the very heart of the question over the extent of the Second Amendment because as the court in Heller states, the “very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’”
If the right did not preexist in the Declaration of Colonial Rights it must had existed later in the States. However, none of the State constitutions makes any mention of a private individual right to own or carry guns. They all addressed the right to bear arms for the sole purpose of “defense” of the State or “the people” in an aggregate sense while silent on any other purpose of using arms.
If the federal Second Amendment was intended only to address individual rights to keep firearms for personal defense the Constitution would had been rendered void of any security against standing armies, something that was causing apprehension and demand to be included in new amendments that Madison eventually offered. No apprehensions are found over keeping everyday private firearms. Perhaps no one explained the principle behind the Second Amendment at the time of the drafting of the Bill of Rights better than Tench Coxe when he wrote in the Pennsylvania Gazette, 1788:
The powers of the sword, say the minority of Pennsylvania, 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 (farmers/landowners collectively) of America from sixteen to sixty. The militia of these free commonwealths entitled and accustomed to their arms, when compared with any possible [standing] 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 have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.
Note Coxe says it is the “militia” that is to be secured against disarmament by Congress and not individuals unassociated with a militia.
Coxe writing in 1787 as “An American Citizen,” pointed out the people are the militia and because of this, troops would be rendered unnecessary: “The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them — for our detached situation will seldom give occasion to raise an army.”
Because Coxe makes clear it is the people in the capacity of soldiers in service of the militia who are “entitled and accustomed to their arms,” the Second Amendments right to bear arms can only mean those arms born by the people in service of the militia for the purpose of making standing armies during peace “unnecessary.”
Sophomoric gun rights enthusiasts usually argue erroneously the Second Amendment recognizes a right of all persons to have weapons in order to facilitate resistance to a tyrannical government. To the contrary, the aim was not for people to use their private guns to resist their own government but to put the military power of the State in the hands of the citizens themselves in order to prevent a tyrant from imposing his rule through use of an already existing army.
Tench Coxe confirms this in his writings on the subject in the Philadelphia Federal Gazette, June 18, 1789:
As civil rulers, not having their duty to the people duly 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 next article in their right to keep and bear their private arms (Coxe’s state required militia members under pains and penalties of law to arm themselves at the time, i.e., militias were armed with the private arms of their members.)
One might argue the Second Amendment says nothing about standing armies but neither does the Third Amendment and historians agree it is rooted in the practice of maintaining a standing army during times of peace where law required people to quarter those troops on their property. One of the things that made standing armies so odious was they lived among the people.
New Hampshire Governor John Page in June of 1841 explains the bearing of arms as part of the military power of the State through an armed citizenry:
The “right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.
Pennsylvania Governor John Andrew Shulze said in 1829, the “right to bear arms is another important right guaranteed to all our citizens by the [Pennsylvania] constitution.” This right says he, imposes on the “legislature the duty of so organizing and disciplining the whole body of the citizens, that they shall be able, not only to bear arms, but to use them with confidence and skill, ‘in defense of themselves and the States, ‘ if such a necessity shall arise.”
Louisiana Governor Francis Nicholls was more explicit: “Every citizen of this state has a right to keep and bear arms in conformity with our militia laws.”
In 1860 Francis Bird of Massachusetts said “the right of the people to bear arms” meant “to bear them as a part of the military power of the State.”
The above quotes illustrate the military connection with the right to “bear arms.” How can we be sure? States never used the phrase “bear arms” in their civil codes when addressing private gun ownership and usage but only when speaking of their military use through organized militias of the people for purpose of defense of homes, communities and State.
The court has never found a single exception of state statutory laws treating “bear arms” as anything other than arms belonging to the militia.
The Heller court attempted to get around this damaging fact by trying to find laws that used the phrase “bear arms” outside of a military context. However, they utterly failed, offering only three obscure examples from early colonial times by declaring, “these purposive qualifying phrases positively establish that ‘to bear arms’ is not limited to military use.” Example by the Heller court:
For example, an early colonial statute in Massachusetts required every “freeman or other inhabitant” to provide arms for himself and anyone else in his household able to “beare armes”. . .
If the majority had quoted the entire above statute it would had destroyed their false assertion because it specifically said the purpose of bearing arms was “for war,” i.e., military deployment and not personal self-defense. The majority brings up an early Virginia code requiring “all men that are fittinge to beare armes” to “bring their pieces” to church. This was a militia act due to war with the Indians at the time and not anything that could be construed to mean, “bear arms” in a non-military context.
Suffice to say the majority was unable to find any relevant civil codes referring to “bear arms” outside of service in the military, though they found an un-enacted phrase from Madison in Virginia of “bear a gun” for deer preservation. Bearing a gun (singular) and bear arms (plurality) is two different things.
Additionally, there was a Pennsylvania minority Second Amendment proposal that included the additional qualifier of “killing game” along with the right to bear arms, but this was not adopted nor did any future Pennsylvania game laws use the term “bear arms.” It was likely intended to be an additional security against disarmament of the people’s militias through the pretense of preserving game.
History shows all the States required by law those capable of bearing arms to do so, whether they were required by law to arm themselves with their own “private arms” or given public arms to use when the US begun supplying the States with US arms. Eventually all the States did away with compelling citizens to provide their own arms and instead armed their militias with public arms. As been pointed out already, when Tench Coxe spoke of “private arms” he was referring to his own State of Pennsylvania law that militia members provide themselves with their own musket (“private arms”) at the time, else the fines for missing muster days would be used to purchase a musket for those unable to provide their own.
It is difficult to conceive how a mandatory duty to keep and bear arms by law for which a person could be fined or jailed for refusing can be elevated to an individual freedom beyond the regulation of law.
Armed militias of the citizens served the vital function in providing communities with an armed police force when needed since there were no established police forces in early America that could respond to such events as rioting. This is why we find many State constitutional provisions for citizens to bear arms in defense of themselves (aggregate/community) or the State.
Framer James Wilson speaking of the constitutional right of the citizens to bear arms in the defense of themselves shall not be questioned under the Pennsylvania Constitution, said, “[t]his is one of our many renewals of the Saxon regulations,” and that “one may assemble people together in order to protect and defend his house.” No question Wilson was speaking from personal experience after having in the year 1779 to collectively defend his home along with 34 others from 200 angry protesters who opened fire, killing two who were inside.
Wilson and his fellow defenders were only able to hold off the mob long enough for the militia to be called out the next morning through resupplying themselves with lead and gunpowder kept at a nearby public armory they managed to visit during the night.
Thus, Wilson is talking about the renewal of Assize of Arms as established under King Alfred, where his subjects were compelled to become united under sword for the common defense of their family, neighbors, parish, and realm. Without such a united defense, no single man with a musket could have been able to defend either themselves or home against a mob of 200 people.
The bearing of arms was never considered a fundamental right of individuals to personally keep and use firearms but rather viewed as a civic duty, an obligation of citizenship in the same breath as casting a ballot or jury duty. One of the early arguments against granting suffrage to woman was it could lead to the obligation of them bearing arms. Proof of the civic function of bearing arms can be found in such things as the application for citizenship that asks, “are you willing to bear arms on behalf of the United States?”
Judge Advocate General of the Army (C. 1169, May 27, 1910) held the word “arms” under the Second Amendment “refers to the arms of the militia or soldier and does not authorize the carrying of weapons not adapted to use for military purposes.”
The United States in July of 1863 issued orders forbidding citizens of the city of Baltimore and County to keep arms except those with the “constitutional right” to keep arms in being members of a militia.
The court calls “explicit evidence” the words “constitutional right to bear arms” under §14 of the Freedmen’s Bureau Act they assert the 39th Congress viewed as a “fundamental right.” However, the insertion of these words was in response to the arming of all white militias within former Mississippi that excluded blacks. In other words, §14 of the Freedmen’s Bureau Act actually supports arms of the citizenry under a well-regulated militia rather than an individual right to arms outside of the service of a militia.
It is important to note the Freedmen’s Bureau Act was limited only to former rebel States that were then under United States military jurisdiction, which in return made the Second Amendment applicable under any law, made by Congress while administering these former States.
This fact became very apparent with an act of Congress on March 2, 1867 that disbanded all the armed militias within former rebel States, leading to the charge Congress was infringing citizen’s right to keep and bear arms. President Johnson called the disbanding of the militias as “contrary to the express declaration of the Constitution, that ‘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.’”
The majority makes a bizarre claim that the Civil Rights Act of 1866 “similarly sought to protect the right of all citizens to keep and bear arms” as the Freedmen’s Bureau Act did, even though the Civil Rights Act made no mention of bearing arms. The majority tries to slink around this inconvenience by suggesting the words “the right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal” was understood by some to include bearing arms.
How did the majority come to this wild conclusion with the Civil Rights Act having nothing to do with any personal rights outside of the administration of justice?
They think Sen. Lyman Trumbull suggested the Freedmen’s Bureau Act would have protected the right to bear arms without the words “constitutional right to bear arms” inserted. In reality, all he said was the insertion of the “constitutional right to bear arms” would had no “material effect” to the already existing section.
So then, the majority unwisely jumps to the conclusion the Civil Rights Act of 1866 must also had been intended to secure the “constitutional right to bear arms” even though it made no mention of the right.
Trumbull said his Civil Rights Act of 1866 “neither confers nor abridges the rights of any one, but simply declares that in civil rights there shall be an equality among all classes of citizens, and that all alike shall be subject to the same punishments.” This remark effectively demolishes the majorities’ assertion.
Another bizarre claim the Heller court makes that is worth mentioning was with asserting the provision of the English Bill of Rights that read, “the subjects which are Protestants may have arms for their defense, suitable to their conditions, and as allowed by law,” was “clearly an individual right, having nothing whatever to do with service in a militia.”
Actually, it had everything to do with service in the militia. The Duke of Ormond had formed an all Irish Militia and provided Protestants who served in his militia with arms. James II moved to selectively disarm Ormond’s militia under rumor of another rebellion similar to that of 1641. Meanwhile, Papists were allowed to remain armed and employed in militias contrary to the law of the time.
The Manuscripts of the Marquess of Ormonde, 1678, shows the proposal of arming Protestants was to “enable Protestants to withstand and defend themselves against any Papists whatsoever that should come with commission and bear arms in any military employment, and to dispense with those laws that at present made it rebellion so to do.”
With all the States compelling people by law to keep and bear arms and imposing penalties for failure to do so, proves beyond any doubt the bearing of arms under the Second Amendment is indeed connected to service in the militia. The additional fact that there were no demands for new amendments to the federal Constitution for any private right of individuals to have weapons but only demands for security against standing armies is further proof the Second Amendment was adopted for the sole purpose of securing citizens right to bear arms in service of well-regulated militias in order to make standing armies unnecessary.
The Second Amendment acknowledges the ancient principal that says a free people can only remain free when people are able to collectively provide for their own defense instead of professional armies that could become a tool of despotic rulers. The “right of the people” in the federal Constitution is used only in a collective recognition sense due to the fact the federal Bill of Rights had no force of law upon individuals themselves within their own sovereign States.
Did the Fourteenth Amendment incorporate the Second Amendment?
The Second Amendment or right to own, carry, or use a gun was never part of the Fourteenth Amendment debates. Senator Howard quickly summarized some of the first eight amendments including “right to keep and to bear arms” when speaking of privileges and immunities of U.S. citizens when introducing the amendment to the Senate in 1866 but here he was only drawing attention to the Bill of Rights as a whole where “personal rights” were “secured by the first eight amendments” can be found. He followed up by qualifying the rights to be those recognized by “present settled doctrine” to belong to a “citizen solely as a citizen of the United States and as a party in their courts.” The Second Amendment was never a personal right citizens could claim as a party in federal court.
And not once did Howard suggest the Fourteenth Amendment would change this settled doctrine – only that States would be compelled to respect these rights of U.S. citizens (read, emancipated blacks) before state courts of law.
As for due process there is no “history, legal traditions, and practices” of treating “bear arms” as a fundamental right of individuals unconnected to service in the militia thereby making the Second Amendment a bad candidate for incorporating private gun ownership under the judicial theory of substantive due process.
And finally, this declaratory principal found under the Second Amendment lies today in a dormant state due to the fact States no longer compel their citizens by law to bear kept arms in State organized militias for security of a Free State.