The Second Amendment (part 3)
Clayton Cramer
Copyright Clayton E. Cramer 1991 All Rights Reserved
Distribution for non-commercial purposes allowed, provided the
original distribution limitations are retained, and no alterations
are made to the text.
Please note that this is the result of saving a Microsoft Word
file without formatting, so no guarantees about loss of meaning
from loss of italics.
I will be sending articles based on this to American Rifleman
shortly; hopefully, they will see fit to print some of them.
A book length version of this is under way as well.
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CLAYTON E. CRAMER
Removing the phrase "for Their common Defence" clarified the
individual nature of that right.
It would seem quite clear that article six expressed the
understandable concerns about the dangers of a standing
army. Equally clear is that article seven expressed concern
about the dangers of individuals being disarmed, and sought
to protect the rights of the overwhelming majority of
Englishmen to possess arms.
The Legislative Intent Of The Second Amendment
In determining the legislative intent of the Second
Amendment, there are several areas appropriate for study:
state constitutions of the period, the state requests for a
Bill of Rights, the actions of Congress with respect to the
Second Amendment, and contemporary commentaries on the
meaning of the Second Amendment.
State Constitutions
Not surprisingly, many of the provisions contained in the
Bill of Rights were present, in one form or another, in the
constitutions adopted during the revolutionary and
republican periods. Those constitutions adopted before the
Bill of Rights can tell us what sense "the right to keep and
bear arms" had in the political vocabulary of the time;
those constitutions adopted after the Bill of Rights can
tell us the common understanding of the Second Amendment.
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"FOR THE DEFENSE OF THEMSELVES AND THE STATE":
THE SECOND AMENDMENT & INDIVIDUAL RIGHTS
Pennsylvania's 1776 constitution declares: "That the
people have a right to bear arms for the defence of
themselves and the state..."45 Vermont's constitution of 1777
similarly proclaims: "That the people have a right to bear
arms for the defence of themselves and the State..."46 The
1786 Vermont constitution retains the same individual rights
wording.47
If, as the collectivist school claims, the "right to keep
and bear arms" reflects concerns about the enlarged powers
of the central government, why do these state constitutions
contain explicitly individual guarantees of the right to
keep and bear arms? The evidence is clear that at least
some significant fraction of the newly independent states
were worried not only about common defense, but also about
personal self-defense.
There were a number of other state constitutions adopted
during this period of time that seem to argue for a
collectivist reading of the intent of the Second Amendment.
Massachusetts's 1780 Constitution asserts: "The people have
a right to keep and bear arms for the common defence."48
However, there were significant dissenters to that
phrasing. The town of Northampton requested a less
restrictive wording to this provision of the 1780
Constitution: "The people have a right to keep and bear
arms as well for their own as the common defence." The town
of Williamsburg made a similar objection to the language of
the 1780 Massachusetts Constitution.49
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CLAYTON E. CRAMER
This may be an indication that no general right to keep
and bear arms was intended; it is hard to imagine why "for
the common defence" would be added to such an assertion,
unless it was intended to limit the breadth of that right.
But this clause was drafted by John Adams, who, as we have
seen, admitted an individual right to bear arms for self-
defense at the Boston Massacre trial, and would later argue
"arms in the hands of citizens [may] be used at individual
discretion".50
Similarly, the North Carolina Constitution of 1776
restricts the people's "right to bear arms, for the defence
of the State".51
New York's 1777 constitution is an interesting case. It
contains no guarantee of an individual right to keep and
bear arms -- but contains an interesting obligation:
And whereas it is of the utmost importance to the
safety of every State that it should always be in a
condition of defence; and it is the duty of every man
who enjoys the protection of society to be prepared and
willing to defend it; this convention therefore, in the
name and by the authority of the good people of this
State, doth ordain, determine, and declare that the
militia of this State, at all times hereafter, as well
in peace as in war, shall be armed and disciplined, and
in readiness for service...
And that a proper magazine of warlike stores,
proportionate to the number of inhabitants, be, forever
hereafter, at the expense of this State, and by acts of
the legislature, established, maintained, and continued
in every county in this State.52
The "duty of every man" included defense of the State,
either in person, or for conscientious objectors, by the
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THE SECOND AMENDMENT & INDIVIDUAL RIGHTS
payment of in lieu fees. The "militia of this State, at all
times hereafter, ... shall be armed and disciplined, and in
readiness for service..." strongly suggests that New York
intended a citizen's militia along the lines of the Swiss
Army. In light of the definition of "militia" provided for
us by George Mason at the Virginia ratifying convention, it
would appear in the words of Patrick Henry, "The great
object is, that every man be armed... Every one who is able
may have have a gun."53 Is this a "right to keep and bear
arms", or an obligation? If the Second Amendment derives
from such an obligation, the collectivist claim that no
individual right was intended, can not be easily brushed
aside. While every man would be armed under such a system,
except for the "religiously scrupulous", the arms would be
for the purpose of collective defense. An individual right
might still exist, separate from the collective obligations,
but evidence would have to be produced to uphold that
position.
In the same way that state constitutions adopted before
the Bill of Rights can tell us something about the intent of
the Second Amendment, the state constitutions containing a
"right to keep and bear arms" clause adopted afterwards can
tell us something about the meaning commonly ascribed to the
Second Amendment after its passage.
There is no shortage of such clauses to consider; the
question is how long the adoption of constitutions with
"right to keep and bear arms" clauses is relevant to the
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CLAYTON E. CRAMER
issue of original intent. I have chosen, rather
arbitrarily, to examine those constitutions adopted in the
period before 1845. The last living signer of the
Constitution, Charles Carroll, died in 1832, and only a few
adults alive at the time the Bill of Rights was ratified
would have long survived him.
In this formative period of American history, there are a
total of fifteen constitutions, adopted by nine states, one
territory, and one independent nation (the Republic of
Texas)54 that contain a "right to bear arms in defense of
himself and the State"55, or some slight variant. Because
these provisions specify "in defense of himself", it is
unambiguous that the right protected in each case is
individual. These must be considered as evidence for the
individualist school that no need was felt to come up with
new and unique language, when the Second Amendment was
available as a model.
By comparison, there are only three constitutions in this
period that specify "for the common defence": the Maine
State Constitution of 1819, and the Tennessee State
Constitutions of 1796 and 1834. None of these specify an
individual right, and so we must assume, absent other
evidence, that the intent was collectivist.
There are some exceptional state constitutions that are
not clearly in either camp. The Rhode Island State
Constitution of 1842 (Rhode Island had continued to use its
colonial charter) uses the second clause of the Second
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"FOR THE DEFENSE OF THEMSELVES AND THE STATE":
THE SECOND AMENDMENT & INDIVIDUAL RIGHTS
Amendment by itself: "The right of the people to keep and
bear arms shall not be infringed."56
Since Rhode Island's constitution also guarantees "The
right of the people to be secure in their persons, papers
and possessions against unreasonable searches and seizures"
and "The people shall continue to enjoy and freely exercise
all the rights of fishery, and the privileges of the shore",
it is difficult to imagine "the people" referring only to a
collective right. We may infer that "the people" was not a
rhetorical device to refer to "persons" from section 21,
which restricts the "right in a peaceable manner to assemble
for their common good, and to apply to those invested with
the powers of government, for redress of grievances" to
"citizens".57
The New York State Constitution of 1821 carries over the
language of the 1777 constitution. It does not directly
evidence either a collectivist or individualist
interpretation of the Second Amendment, but does provide
some evidence to justify the collectivist argument that the
intentions of the "well regulated militia" clause were for a
collective defense.
The very lop-sided division between the "common defence"
and individualist state constitutional provisions indicates
that the individualist understanding of the Second Amendment
was predominant during this critical period of American
history.
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CLAYTON E. CRAMER
Requests For A Bill of Rights
Only five state constitutional conventions made formal
requests for a Bill of Rights: Massachusetts, South
Carolina, New Hampshire, Virginia, and New York.58 In the
case of Pennsylvania, the Federalist faction overwhelmed the
Antifederalists at the state convention, and rammed through
ratification of the Constitution by a 46-23 vote. Attempts
by the Antifederalists to append a request for a Bill of
Rights to the ratification were defeated by the same margin.
In response, 21 of the 23 delegates met after the
convention, and issued "The Address and Reasons of Dissent
of the Minority of the Convention", which includes their
request for a Bill of Rights.59 While lacking the official
status of the requests made by the five state conventions,
it can be considered to be a statement of the Antifederalist
position, and should be considered when studying the
official requests.
The Pennsylvania request included an amendment that can be
clearly seen as a predecessor to the Second Amendment:
7. That the people have a right to bear arms for the
defense of themselves and their own state or the United
States, or for the purpose of killing game; and no law
shall be passed for disarming the people or any of them
unless for crimes committed, or real danger of public
injury from individuals; and as standing armies in the
time of peace are dangerous to liberty, they ought not
to be kept up; and that the military shall be kept
under strict subordination to and be governed by the
civil powers.60
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"FOR THE DEFENSE OF THEMSELVES AND THE STATE":
THE SECOND AMENDMENT & INDIVIDUAL RIGHTS
The phrases "for the defense of themselves" and "no law
shall be passed for disarming the people or any of them
[emphasis added] unless for crimes committed, or real danger
of public injury from individuals" leave no doubt that the
Antifederalists in Pennsylvania desired an individual right
to keep and bear arms. The phrase "or real danger of public
injury from individuals" seems to be intended to handle
those cases where no crime was alleged or proven, but where
a clear-cut hazard by particular individuals could be
established -- certainly, mental illness was not unknown to
the people of Pennsylvania. Note also that "to bear arms"
is again used in the context of personal self-defense, as
well as a part of a military body -- further suggesting that
Prof. Levin's distinctions were not recognized by
Revolutionary Americans.
At the same time, there is a concern about standing armies
expressed, and the desire for "strict subordination" shows
the concerns about military dictatorship. That this is
expressed in the same paragraph as the "right to bear arms
for the defense of themselves and their own state" can be
considered evidence that a connection existed in the minds
of the drafters between personal armaments and the dangers
of standing armies -- much as the English Parliament saw an
obvious connection between private arms and standing armies.
Massachusetts is one of the states whose request for a
Bill of Rights, adopted February 6, 1788, does not include a
predecessor to the Second Amendment -- but came very close to
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CLAYTON E. CRAMER
doing so. Samuel Adams, a Federalist delegate, proposed a
Bill of Rights be added to the state convention's
ratification of the Constitution:
And that the said Constitution be never construed to
authorize Congress to infringe the just liberty of the
press, or the rights of conscience; or to prevent the
people of the United States, who are peaceable
citizens, from keeping their own arms; or to raise
standing armies, unless when necessary for the defence
of the United States, or of some one or more of them;
or to prevent the people from petitioning, in a
peaceable and orderly manner, the federal legislature,
for a redress of grievances; or to subject the people
to unreasonable searches and seizures of their persons,
papers or possessions.61
In the ensuing machinations of Federalists and
Antifederalists, Adams attempted to withdraw his own motion,
at which point the Antifederalists revived it, and Adams
voted against his own motion. It lost 187-168 -- a very
narrow victory for the Federalists, and indicative of the
widespread support that this list of rights had among
Massachusetts delegates.62 It might be tempting to assume
that Adams' list of rights was derived from the Pennsylvania
minority report -- but "The Address and Reasons of Dissent"
did not reach Boston until after the Massachusetts
convention had ratified the Constitution, sans a Bill of
Rights.63
Again, a request for a Bill of Rights had been made,
recognizing the right of "peaceable citizens ... keeping their
own arms", with no suggestion that such arms were specific
to military duty or obligations. The phrase "keeping their
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"FOR THE DEFENSE OF THEMSELVES AND THE STATE":
THE SECOND AMENDMENT & INDIVIDUAL RIGHTS
own arms" shows that these were not government owned
weapons, which individuals kept in their homes -- these were
personally owned arms.
When the subject of standing armies was raised at the
Massachusetts ratifying convention, the Federalist delegate
Sedgwick argued for ratification of the constitution, and
against the concerns about Federal power. He asserted that
it was,
a chimerical idea to suppose that a country like this
could ever be enslaved. How is an army for that
purpose to be obtained from the freemen of the United
States? They certainly, said he, will know to what
object it is to be applied. Is it possible, he asked,
that an army could be raised for the purpose of
enslaving themselves and their brethren? or, if raised,
whether they could subdue a nation of freemen, who know
how to prize liberty, and who have arms in their
hands?64
Clearly, the argument runs that the population will be
armed, and in a manner that would make it impossible for a
standing army to overwhelm the people. While still evidence
for a collectivist view of the Second Amendment, it strongly
implies that arms would be widely distributed and available
to "freemen of the United States".
South Carolina's list of desired amendments to the
Constitution, adopted May 23, 1788, is remarkably short --
indeed, the shortest of all, and contains no requests for a
right to keep and bear arms, and no limitations on standing
armies. Indeed, only the Tenth Amendment, reserving powers
to the states, seems to have an ancestor in South Carolina's
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--
Clayton E. Cramer {uunet,pyramid,pixar,tekbspa}!optilink!cramer
You must be kidding! No company would hold opinions like mine!
Article X, "Sec. 23. That the rights of the citizens to bear arms in defence
of themselves and the State shall not be questioned." KY State Const. 1799