What the Second Amendment Really Does Mean
A corporate right to keep and bear arms might be good policy, but it is bad law. The Second Amendment meant to protect and has been read for the bulk of American history as protecting an individual right to keep and bear arms. It still does, and it will until we amend our Constitution. So let us make the case on moral and practical principles to amend it, but let us not rely on vain hopes of a ‘reinterpretation’ that has no support in the Amendment’s language, its grammar, its placement and structure, or its history. Let us all read well and have better arguments.
Rotunda for the Charters of Freedom at the National Archives building in Washington, D.C., where the Declaration of Independence, Bill of Rights, and US Constitution are on display (photo by Kelvin Kay via Wikimedia Commons).
There is a time to argue for confiscating all guns in America, but this is not that time. There is a time to argue that widespread gun ownership is the only bulwark against autocracy, but this is not that time. Those are second-order debates. The first-order debate is over what the law is and why we know what it is. If we wish to avoid fighting against each other, we must learn to talk to each other, and to talk to each other, we must understand the terms of the debate. The Second Amendment protects an individual’s right to keep and bear arms. This is the only reasonable reading of the text, and only once we agree what the law is can we debate what the law ought to be.
Our first step is to look at what the Second Amendment says. It reads, in full, “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.” But what does that mean? There are, roughly, two alternative readings.
The first is what I call the “Individual Right” position. This is the Supreme Court’s current interpretation of the Constitution as articulated in The District of Columbia v. Heller. It holds that while “the Second Amendment right is not unlimited,” it does “protect […] an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense.” It should not have been a close decision. It is the unambiguously, unimpeachably, incontestably correct one, based not just on the history of the Amendment, but its placement in the Constitution, its language, and even its grammar.
“Unless we wish to exile from the protections of the Second Amendment half of the fathers of underage children and all women except those ‘who are members of the National Guard,’ those who propound the corporate right theory may not wish to be too strenuous in the belief that only those in the ‘militia’ retain the right.”
The second position is what I call the “Corporate Right” position. Its proponents argue that the Second Amendment protects nothing more than the forming and arming of militias. Specifically, quoting the dissent in Heller, “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” Or as Dorothy Samuels writes in her The Nation article, “The Second Amendment Was Never Meant to Protect an Individual’s Right to a Gun,” “The National Rifle Association [waged] an intense 30-year campaign to secure an individual’s constitutional right to keep and bear arms.” Neither the dissent nor Samuels is alone in making this argument, as anyone with an ear open to this debate knows (but see also, here, here, here, here, and here). Samuels continues, “the decision declared, for the first time, that the Second Amendment protects an individual right to a gun” (my emphasis).
This is simply wrong. Courts throughout our history have written that the Second Amendment secures an individual right to keep and bear arms, and every commentary from before the modern era recognized as much. Worse, the very language, grammar, and placement within the Bill of Rights demands an individual right reading of the Second Amendment. As I am as sure the Second Amendment protects an individual right to keep and bear arms as I am that grass is green and the sky is blue, I thought it useful to create a comprehensive (though not complete, that would take a book) list of reasons why. I hope this will help those who believe it is an individual right to express themselves better, and I hope it will correct the misunderstandings and suspicions of those who believe it is a corporate right.
Let us start with the words of the Amendment.
The Language
The corporate right position is straightforward. They say that, because the first clause references the militia, the right enumerated in the second clause must constrain the keeping and bearing of arms to only “a military purpose.” Ms. Samuels writes, “To find in that wording an individual right to possess a firearm untethered to any militia purpose, the majority performed an epic feat of jurisprudential magic: It made the pesky initial clause about the necessity of a ‘well regulated Militia’ disappear.”
This is not exactly what happened. The Heller Court simply read the language not as a writer of The Nation Anno Domini 2015 might but as a farmer, printer, or lawyer in America circa 1790 would have. For in the near quarter-millennium that have passed since the Amendment’s passage, many words have had their meanings obscured or altered altogether.
Let us start with the phrase “the right of the people.” Almost identical language can be found in the Ninth Amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Likewise, the Tenth Amendment, “reserve[s]” to “the States” or “the people” any power not explicitly delegated to the federal government. What rights to what corporate body—for example, a militia—is the Ninth Amendment meant to protect and the Tenth Amendment meant to reserve? There are none. They are reserved to individuals. That is because “the people” here means all the citizens individually, as it does in the preamble, “We the People of the United States.” There is no one I have read who believes “We the people” means those who drafted the Constitution alone. (See also United States v. Verdugo-Urquidez [1990], holding that “the people” was an eighteenth-century term of art for members of the political community.)
The final place in our Constitution where “the people” shows up is in Article 1, Sec. 2, which provides, “the House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” And while voting, even for the House, was originally restricted to men of property, this may not be the restriction on the right the Heller dissent and those who agree with them were hoping to impose, nor (happily) is it the one supported by language or history.
Let us look next at the phrase, to “keep arms.” The phrase is rare, but to the extent it shows up, it points towards an individual right. For example, William Blackstone was an eighteenth-century legal historian whose Commentaries were superbly influential and are reflected in the writings of not just every lawyer to attend the Continental Congress and the United States Congress but many of the non-lawyers (more on Blackstone in the section on history). In his Commentarieshe wrote, to quote Heller, “Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to keep arms in their houses” (internal quotation marks omitted, my emphasis). This alone seems, to me, to create what in law we call a “rebuttable presumption” of its truth.
Yet to this rebuttable presumption, the two dissents brought little contemporaneous evidence about the text of the Constitution, and none that was not refuted in turn by the Court. Instead, the dissents relied on twentieth-century cases, contemporary to them law review articles, and several statutes written before either state or federal constitutions, which regulated some firearms (even though the majority explicitly affirmed that some regulations were permissible). But none of it proves what they tried to prove. In the words of the Court, to argue that “ ‘keep Arms’ has a militia-related connotation […] is rather like saying that, since there are many statutes that authorize aggrieved employees to ‘file complaints’ with federal agencies, the phrase ‘file complaints’ has an employment-related connotation. ‘Keep arms’ was simply a common way of referring to possessing arms, for militiamen and everyone else.” I cannot improve on this response to a rebuttal not even fully made.
The dissent tried substantially the same trick when arguing about the meaning of “bear arms,” concluding it meant carrying them only for “military purposes.” This will not do. We have too many sentences like in Timothy Cunningham’s 1771 Law Dictionary, “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” Presumably these “Servants and labourers” were not going off to war, on Sundays or any other. To the extent the phrase “to bear arms” meant to bear arms for “military purposes,” it was universally in the phrase “to bear arms against.” For example, the Declaration of Independence says, “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country.” But to otherwise constrain the meaning of “bear arms” contradicts not just history (as we shall see) but dictionaries and plain sense.
So we have covered “the rights of the people,” and both “to keep and bear arms,” but what is almost funny is that even “well regulated” does not mean what we twenty-first-century people tend to think. This is important, for often “well regulated” is emphasized, as if by using a word we now associate with legislation, we mean that the right discussed must be practiced only when subject to that legislation. Yet “well regulated” in eighteenth-century parlance meant little more than well organized, well maintained, or in proper working order.
Looking back at Cunningham’s Law Dictionary, we read “All well-regulated governments have laid down and fettled certain rules of propagation, as necessary to the very being of human society” (my emphasis). Presumably those arguing for a corporate right would not read that sentence as saying that these governments must, to function, be first subject to rules they have not yet promulgated. But, if so, they should observe The Rule and Exercises of Holy Living and Dying (1838) in which Jeremy Taylor wrote, “If zeal be in the beginning of our spiritual birth […] or come upon any cause but after a long growth of a temperate and well-regulated love, it is to be suspected for passion and forwardness” (my emphasis). Likewise, a 1783 translation of Charles Gobinet’s 1655 work, Instuction de la jeunesse en la piété (trans., The Instruction of Youth in Christian Piety), says, “So that... if you have a wife and well-regulated mind, it will appear by the modesty of your exterior behaviour” (my emphasis). Presumably again, neither Mr. Taylor’s zeal nor M. Gobinet’s mind were suspected of being subject to government legislation.
But if discussions of well-regulated institutions elsewhere in life do not satisfy, then we can look to William Rawle’s 1825 A View of the Constitution of the United States. There he discusses the two parts of the Second Amendment. Of the explanatory or prefatory clause (more on this in a moment), he writes, “That [the Militia] should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country” (my emphasis). He does not say “lawless” nor does he give any indication these militia would be creatures even of the state governments, much less the federal one.
And finally, even “militia” meant (and indeed, still means) something quite different from the national guards about which we are accustomed to think. “Militia” meant at the time nothing more or less than all able-bodied men under arms. So, for example, Webster’s Dictionary of 1828 calls the militia “the able bodied men organized into companies.” Or Madison in Federalist 46 tries to assuage fears of an overweening government by noting how useless it would be for the American government to field a standing army against “a militia amounting to near half a million of citizens with arms in their hands.” Half-a-million was roughly the able-bodied (white) male population of the United States at the time. Or take it up with Thomas Jefferson, who wrote on January 26, 1811 to Destutt de Tracy, “the militia of the State, that is to say, of every man in it able to bear arms.” While I do not think it necessary to restrict the right to keep and bear arms to able-bodied men given the grammar of the article (more on this in just one paragraph), that is what we would have to do if we read “the militia” as an American of the eighteenth-century would have.
Indeed, even if it were permissible to look to modern definitions to find what founding-era documents meant, this would not help those in favor of a corporate right quite as much as they suspect. For according to 10 U.S.C. §246, “The militia of the United States consists of all able-bodied males at least 17 years of age and […] under 45 years of age who are […] citizens of the United States.” So unless we wish to exile from the protections of the Second Amendment half of the fathers of underage children and all women except those “who are members of the National Guard,” those who propound the corporate right theory may not wish to be too strenuous in the belief that only those in the “militia” retain the right.
In short, once we learn what eighteenth-century men meant by their words, we see that the Second Amendment could be rendered in modern English as something like, A citizenry with properly maintained arms, being necessary to the security of a free State, the right of the voting public to keep and carry with them Arms, shall not be infringed. And that is if we assume that the clause, “the right of the people to keep and bear Arms, shall not be infringed,” is limited by the clause, “[a] well regulated Militia, being necessary to the security of a free State.” But the thing is, it is not permissible to restrict that second clause (the operative clause, the “shall not be infringed” clause) by any meaning of the first clause. To explain that, we must look at the grammar.
Grammar
“A well regulated militia, being necessary for the security of a free State” is what grammarians call an explanatory, introductory, or (in Heller’s words) “prefatory” clause, and, specifically, it is called a “nominative absolute.” Now a relatively obscure construction, it is common in Latin and therefore was common to the English of those (like the Founders) who had been schooled in Latin classics. While the name “nominative absolute” is almost unknown outside of those nerds who geek out about Latin grammar (guilty), we still use the construction in everyday speech. I hope discussing the construction in non-controversial sentences will explain how it works and what it means for the Second Amendment.
Merriam-Webster gives a modern-day English example in, “he being absent, no business was transacted.” If we were to drop the first clause and keep just “no business was transacted,” no native English-speaker would think vital information had been withheld. If we said for a while only the “operative clause,” “No business was transacted,” and then later started adding the “prefatory clause,” “he being absent,” no one would think we had changed our tune. Yet that is what those arguing for a corporate right would have us believe, that the fairly straightforward operative clause, “the right of the people to keep and bear Arms, shall not be infringed,” is somehow changed, changed utterly by the introduction of the prefatory clause, “A well regulated Militia, being necessary to the security of a free State.”
To make this clear, let us look at some more sentences. “It being a holiday, the store is closed,” “John being sick, the Does aren’t coming for dinner,” “Being exhausted from caring for her newborn, Emily forgot to turn off the stove.” No one would think that if Emily just bought a coffee on the road, her stove would magically turn off; no one would think that if the State announced that the holiday were ended, the store would magically reopen. As the Heller Court said, “apart from [serving a] clarifying function, a prefatory clause does not limit or expand the scope of the clause.” This may be clearest of all if we alter the first clause with a “because” and use a finite verb: “Because it is a holiday, the store is closed,” “Because John is sick, the Does aren’t coming for dinner,” “Because she was exhausted from caring for her newborn, Emily forgot to turn off the stove.” Look back at the original sentences and these; we see there is no daylight between their meanings.
If we alter the Second Amendment in this way, we get, “Because a well regulated militia is necessary to the security of a free state, the right to keep and bear arms shall not be infringed.” That is all the Amendment means, all it has ever meant, and we strangle in its crib the real conversation about what our laws ought to be by pretending otherwise.
If this is not evidence enough, we have both the Amendment’s placement in the Constitution and considerable history to guide us. Let us look at the placement first.
Placement and Structure
The structural arguments are often overlooked. Let us ask the question, if a law were meant to protect the right of states to organize militias, where might we expect to find this right written? We might answer, presumably in the part of the Constitution which sets out the relationship of the federal to the state governments, especially if that part of the Constitution deals with the militia explicitly. There is such a clause, but that is not where we find the Second Amendment.
Known as the “Militia Clause,” Article I, Section 8, Clause 16 of the Constitution enumerates the role of Congress and the states in organization, arming, officering, and drilling the state militias. Congress has power “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States” and yet “reserv[es] to the States respectively, [the power of] the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” If a corporate right to keep and bear arms was meant to preserve State militias from federal interference, would it not make sense to place that right where the Constitution separates out federal from state responsibilities under the title “Organizing Militias”?
Instead, the Second Amendment sits in the Bill of Rights. As we all know, the First Congress of the United States passed the first ten amendments in exchange for the Anti-Federalists accepting the new Constitution. What most of us do not know is that James Madison originally proposed nineteen amendments, seventeen of which the House passed, from which the Senate consolidated twelve before a Joint Conference Committee edited the language of each.
Of those “original twelve amendments,” ten received enough votes to pass and became the Bill of Rights we know. The states did not pass the “original first” or the “original second” amendments, though the “original second” amendment would finally be ratified on May 5, 1992, and become our Twenty-Seventh Amendment. It says that Congress may pass no law that increases their compensation before the next election of representatives. The “original first” spoke to how many people a Representative could represent, giving an absolute cap of 50,000 people to one Representative. If we operated under that amendment now, the House of Representatives would (as of the 2020 Census) have roughly 6,700 members. I am getting to why this matters, and it has to do with the heading—structure. The amendments originally proposed as first and second were about the relationship between Congress and the people. They placed limits on Congressional action and power.
Meanwhile, if we turn our attention back to the Ninth and Tenth Amendments, which we discussed in the Language section, we may remember that they deal with reserving rights to the people and power to the states and the people together. That is, these Amendments speak to the breadth of the power of the citizens. And so if we look at the whole structure of the original twelve amendments passed by the joint committee in the First Congress, we see that the first two deal with the powers and organization of Congress, and the last two preserve unenumerated rights and powers to the states and to the people.
The middle eight, then, deal with specific rights protected, such as the right to “the free exercise” of religion, or to be free from Double Jeopardy, or from “cruel and unusual punishment.” If we are to accept that the First, Third, Fourth, Fifth, Sixth, Seventh, and Eighth Amendments all protect individual rights held by the people, it would be whimsical at best to assume that the Second just so happens to protect a corporate right held by their respective states, especially since, as we have seen, there is not only a Militia Clause that deals with that exact issue but the Tenth Amendment concerns itself with reserving power from the Federal to the State Governments.
We have so far seen that the language of the Second Amendment suggests it protects an individual right. Additionally, the grammar of the Amendment all but demands such a reading. Now, on top of all that, the very structure and placement of the Second Amendment is identical to seven other rights no one disputes are individual. I shall say it again: this creates a rebuttable presumption that the Second Amendment protects an individual right to keep and bear arms. There would have to be manifold historical evidence that the Founders, early courts, and contemporary legal theorists thought it protected only a corporate right, but what we find is the exact reverse. So our next step is to look to what that history says.
History
I would paraphrase the last argument of those who believe in a corporate right to keep and bear arms as, I see how you get there linguistically, grammatically, and structurally, but that is not what anyone during the Founding Era thought. For a version of this argument, I point back to Ms. Samuels in The Nation: “The National Rifle Association [waged] an intense 30-year campaign to secure an individual’s constitutional right to keep and bear arms,” and “the decision declared, for the first time, that the Second Amendment protects an individual right to a gun” (my emphasis). Likewise, the dissent in Heller wrote, “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
This is almost the perfect inverse of the truth. No one seems to have contemplated that the Second Amendment could be a corporate right until fifty years after its drafting, and until well after the nineteenth-century, every commentary and court decision held it to be an individual right. Let us now take a look at them.
Ten of the original thirteen states protected the right to keep and bear arms in their own Constitutions before there was a Federal Constitution. The language was varied but the effect remained the same, and surely that intended effect, binding as these Constitutions are on the states alone, was not to reserve the right to field a militia to the States. The Pennsylvania Constitution (1776) establishes “that the people have a right bear arms for the defence of themselves and the state” while the Connecticut Constitution (1776) says, “Every citizen has a right to bear arms in defence of himself and the state.” Meanwhile the Virginia Constitution (1776) establishes “that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State,” and the Massachusetts Constitution (1780) says, “The people have a right to keep and to bear arms for the common defence.” Notice that neither Virginia’s nor Massachusetts’s Constitutions mention an individual right specifically. We would be mistaken to conclude from this that they meant thereby to exclude an individual right. Here is Chief Justice Isaac Parker, writing for the Massachusetts Supreme Judicial Court in 1825: “The liberty of the press was to be unrestricted, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction” (my emphasis). The same was true for Virginia courts, as we shall see. If the Framers wished to protect less, they might have said more.
Of the forty-five states that have an explicit protection of the right to keep and bear arms, only Alaska and Hawaii have the Second Amendment in their Constitutions verbatim. What we do see is a general trend towards more explicit protections of the right. So, for example, the Kansas Constitution (1859) says, “A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.” This rise in specificity accompanies (though I have no direct evidence it is a consequence of) legislative attempts at regulation. Indeed, to protect against overreach, multiple pre-Civil War state courts had to correct their legislatures on the fact that “bear arms” meant for personal defense. See, for example, here, here, here, here, here, and here, and contrast this with the dissent’s claim that “had the Framers wished to expand the meaning of the phrase ‘bear arms’ to encompass civilian possession and use, they could have done so by the addition of phrases such as ‘for the defense of themselves.’ ” Congress thought it did not need to; later legislatures learnt otherwise.
This understanding of the right was not confined to state courts. In 1876, the Supreme Court in United States v. Cruikshank wrote that “[t]he very idea of a government republican in form implies a right on the part of its citizens... The right there specified [in the Second Amendment] is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon [the Constitution] for its existence. The second amendment declares that it shall not be infringed.” Not only was Cruikshank decided in 1876—about 130 years before District of Columbia v. Heller, which “decision [apparently] declared, for the first time, that the Second Amendment protects an individual right to a gun,” but the idea from Cruikshank that the right to keep and bear arms is not one granted but merely protected by the Constitution, seems to strike at the roots of Justice Stevens’s assertion in the dissent that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
Courts often confirmed the individual nature of the right even when it would have been convenient for them to hold otherwise. For example, in a Virginia case in 1824, the court held that Constitutional protections did not apply to free blacks the same way they did to whites. “We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Unless one wants to argue that 1824 Virginia included black Americans in its militia, what the Virginia court is saying is that the Virginia Constitution, which was one of those Constitutions which did not explicitly mention self-defense as Justice Stevens seems to think it ought, nonetheless protects an individual right to keep and bear arms (see also Dred Scott v. Sandford [1857]).
Let us now turn back to Mr. Rawle’s A View of the Constitution of the United States of America, which we met up in the Language section. Mr. Rawle wrote his treatise in 1825. He had been a successful lawyer in Philadelphia, had prosecuted the leaders in the Whiskey Rebellion, had revised the civil code of Pennsylvania, and had been appointed Attorney General by George Washington, a position he refused. He not only writes that “well regulated” means “well organized” in the prefatory clause, he has this to say about the operative clause: “The prohibition is general. No clause in the Constitution should by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.”
What is so remarkable to me about this passage is that Mr. Rawle wrote it in 1825, exactly one-hundred years before the Supreme Court held that the Fourteenth Amendment incorporated any portion of the Bill of Rights against the States. The First Amendment, incorporated against the States, is what prohibits Montana or Massachusetts from establishing a State Church. And yet, eight years before Massachusetts did, in fact, abolish the Church it had established since its days as a colony, Mr. Rawle argued that the Second Amendment would restrain even a state government from disarming the people.
If Mr. Rawle’s account is not to taste, we can turn to Joseph Story, a Supreme Court justice from 1812 to 1845, who wrote his Commentaries on the Constitution of the United States in 1833. He writes, “The importance of [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject.” And though he confines his commentary to the usefulness of armed men organized into a militia, Justice Story offers a worry and some ill-disguised scorn that may illuminate the meaning of the Amendment. First, noticing that “the American people [are] growing indifference to any system of militia discipline,” he wonders, “[h]ow it [will be] practicable to keep the people duly armed without some organization, it is difficult to see.” It is again directly inverse of what the proponents of the corporate right reading argue. They say the Second Amendment needed some people armed to maintain the militia; Justice Story worried that without the militia, we would not be able to keep the people armed.
In the next section of his commentary, Justice Story notes that our Second Amendment comes from “[a] similar provision in favour of protestants (for to them it is confined)” in England’s “bill of right of 1688.” There the individual right may be unambiguous even to a modern reader, for it states, “that the subjects, which are protestants, may have arms for their defense suitable to their condition, and as allowed by law.” Justice Story wryly notes that “under various pretenses” the subjects of England have all but lost that right, it being “at present in England more nominal than real, as a defensive privilege.” Another strike against Justice Stevens’s assertion that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”
These common law rights are our inheritance from English law. The great compendium of that law was published in 1765 by William Blackstone. Called Commentaries on the Laws of England, Blackstone’s influence on the American colonies is almost impossible to overstate. Edmund Burke is said to have commented that as many Commentaries circulated in America as in England, and today Blackstone is still the most cited authority in the Supreme Court. Justice Breyer, who joined Justice Stevens’s dissent (and wrote his own) in Heller, has written elsewhere that Blackstone’s “influence on the founding generation was the most profound.”
In Blackstone’s first chapter of the Commentaries (called “Of the Absolute Rights of Individuals”), he writes that one of the five auxiliary rights of private property was “that of having arms for [a citizen’s] defence,” which was part of “the natural right of resistance and self-preservation, when the sanctions of society are found insufficient to restrain the violence of oppression.”
Now, by “auxiliary rights,” Blackstone did not mean they were minor, as we might now. Rather he meant they were necessary to the preservation of those “sacred and inviolable rights of private property.” Indeed, he writes that though the rights of private property are “the principal absolute rights which appertain to every Englishmen […] in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment.” Thus the “auxiliary” rights, like the right of limiting the king’s power, the right of equal access to the courts, and (yes!) the right to keep and bear arms. The American colonies knew it too. As one New York Journal article in 1769 had it, “It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” As Justice Breyer says, this profoundly influenced the founding generation.
Few were influenced more so than St. George Tucker. Tucker had smuggled goods into the States during the American Revolution, and after the war wrote pamphlets encouraging the emancipation of slaves. In 1803, he published an American Edition of Blackstone’s Commentaries. In an appendix, he wrote an essay titled “View of the Constitution of the United States” which said,
This may be considered as the true palladium of liberty […] The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game.
This understanding persisted into the latter half of the nineteenth century. For example, in Senator Charles Sumner’s 1856 “A Crime against Kansas” speech:
The rifle has ever been the companion of the pioneer, and […] [n]ever was this efficient weapon more needed in just self defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guaranty, embodied in the Amendments to the Constitution, that “the right of the people to keep and bear arms shall not be infringed,” the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed.” (my emphasis)
Is there anything left of Justice Steven’s assertion that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution”? Is there anything left of Ms. Samuels’s complaint that the Heller “decision declared, for the first time, that the Second Amendment protects an individual right to a gun”?
If so, let us take some more whacks at it. After the Civil War, a report of the Commission of the Freedmen’s Bureau tells us, “the civil law [of Kentucky] prohibits the colored man from bearing arms […] Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” A Joint Commission on Reconstruction reported, “In some parts of [South Carolina,] armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freedmen. Such conduct is in plain and direct violation of their personal rights as guaranteed by the Constitution.” The Freedmen’s Bureau Act on July 16, 1866 assured freedmen “the right […] to have full and equal benefit of all laws and proceedings concerning personal liberty […] including the constitutional right to bear arms.” This was understood by proponents as well as opponents of the measure, and was discussed both during the passage of the Fourteenth Amendment and the Civil Rights Act of 1871 (see here).
Indeed, a Representative Nye thought the Fourteenth Amendment unnecessary for the same reason Senator Sumner was so irate in his “A Crime against Kansas” speech, because (quoting Nye) “as citizens of the United States, [blacks] have equal rights to protection, and to keep and bear arms for self-defense.” So too did Mr. Rawle back in his 1825 treatise, as we already discussed. With luck, we will see by now that this interpretation was not just partisan Republicans making hay during Reconstruction but the traditional understanding of a right both “sacred and undeniable” to quote Jefferson’s paraphrase of Blackstone in the rough draft of the Declaration of Independence.
This understanding persisted through the end of the nineteenth century. Thomas Cooley was one-time Chief Justice of the Michigan Supreme Court, Dean of University of Michigan Law School, and the man after whom Thomas Cooley Law School is named. He also wrote what Lawrence Solum, then at Georgetown and now at the University of Virginia, calls“the most influential treatise of constitutional law in the second half of the nineteenth century” (the Heller court said the same in its decision, and so have others). In this treatise, Cooley lists those “fundamental rights of the citizen.” Among them are the right to property, the free exercise of religion, and the right that “every man may bear arms for the defense of himself and of the State.” Like the Second Amendment in the Bill of Rights itself, Cooley does not tag this right on to the end of his list where we might invent an excuse to believe he had moved from individual to corporate rights. The very next right listed is “of the people to be secure in their persons, houses, papers, and effects” and next after that is that the people may be free from having “soldiers […] quartered upon citizens in time of peace.”
Later, in a book he wrote in 1880 called General Principles of Constitutional Law, Mr. Cooley even addresses the exact issue of this essay. After drawing the connection between the English Bill of Rights and the Second Amendment (as if Justice Stevens’s assertion needed more killing), Cooley writes,
It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent […] The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.
Now, we have seen why the phraseology does not, in fact, suggest the operative clause is limited by its prefatory clause, but it is useful to mark that by 1880 that interpretation had wide enough circulation to be refuted.
Around the same time Mr. Cooley wrote, John Norton Pomeroy wrote more emphatically of the Amendment’s meaning in An Introduction to Constitutional Law (1868), “The object of this clause is to secure a well-armed militia […] To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms.” And John Ordronaux was even more emphatic yet. In his 1891 Constitutional Legislation in the United States, Ordronaux wrote, “The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. From time immemorial the sword has been the sceptre of military sovereignty […] Therefore, it was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.”
So it is no surprise that the Court in Heller could only find one commentator, Benjamin Oliver, arguing in 1838, that the Amendment “was probably intended to apply to the right of the people to bear arms [in the militia] only.” Yet in the very next sentence Oliver admits that the general view of the Amendment in his time was to the contrary, that it protected an individual right; “It is a common practice in some parts of the United States, for individuals to carry concealed about their persons, some deadly weapon.” That it was not until Mr. Cooley’s treatise in 1880 that Oliver’s argument was given enough attention to be refuted shows us this argument did not grow easy in American soil.
The dissent relies most heavily upon United States v. Miller (1939), but the case cannot support the reading the dissent would thrust upon it. The Miller Court held that the federal government could prohibit the keeping and bearing of sawed-off shotguns, that “[i]n the absence of any evidence tending to show that possession or use of 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.” Far from proving, as Justice Stevens would have it, that a man may keep and bear arms only for “a military purpose,” the holding all but demands (as the Heller Court points out) that the right to keep and bear arms is an individual right, albeit one restricted to those weapons that have “a military purpose” (thus, I would note, exploding arguments that the Second Amendment was not meant to protect a right to “military-style assault weapons”—not that those are legal anyway).
Concluding their section on the history of the right to keep and bear arms, the Heller Court wrote, “The historical narrative that [those proposing a corporate right] must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an over-reading of the prefatory clause.” To that I can only add that they would also have to assume our Founders wrote the Second Amendment with twenty-first-century definitions in mind. For even if the prefatory clause controlled the amendment, it would at most prohibit arms to the able-bodied men of America.
Conclusion
No matter if we read the language of the Amendment as an eighteenth-century man would have, “Militia” as meaning the whole body of the people, “well regulated” as meaning well organized and maintained, “bear arms” as meaning for any lawful purpose, no matter if we look at the Amendment’s placement within the Bill of Rights, or at how it is not placed near the Militia Clause, no matter if we see how the grammar of a nominative absolute makes the prefatory clause an explanation for the Amendment and leaves its “shall not be infringed” clause unaltered, no matter if we check what the founding generation wrote, or what the next generation wrote, or what the Civil War generation wrote, or what the generation over one hundred fifty years after the Constitution wrote, no matter, indeed, if we consult anything but the dissent in Heller and angry articles written in our nation’s magazines by those who do not know what they are talking about, no matter what we do we cannot fail to see that the right was meant to be individual. And the Heller Court correctly decided that it was.
For those who still want to confine the right to keep and bear arms to those serving in the militia (and, if you are still reading this even now, God bless you), I write nothing in this essay to try and dissuade you. That is not its point. If you look at Switzerland or Canada or Japan and admire their gun laws, keep arguing for them. But we must be serious about what our laws mean if we are going to have real conversations in this country and not argue past each other.
A corporate right to keep and bear arms might be good policy, but it is bad law. The Second Amendment meant to protect and has been read for the bulk of American history as protecting an individual right to keep and bear arms. It still does, and it will until we amend our Constitution. So let us make the case on moral and practical principles to amend it, but let us not rely on vain hopes of a ‘reinterpretation’ that has no support in the Amendment’s language, its grammar, its placement and structure, or its history. Let us all read well and have better arguments.
