The Right to Bear Arms and the Right to Own Guns

“When the sword is once drawn, the passions of men

observe no bounds of moderation”

— Alexander Hamilton, Federalist #16

A simple reading of the Second Amendment in its historical context and using eighteenth century semantics, reveals pretty clearly that it means what it says. The right granted no longer exists; at least not in the way the Founding Fathers intended it.

In spite of all the creative and tortured logic to make the right to gun ownership the same as the right to keep and bear arms under the Second Amendment, those are actually two separate and distinct issues. Now before you gun enthusiasts start looking up my address, I believe the right to own guns is and always has been protected by the Constitution – but not by the Second Amendment.

In the interest of full disclosure, please know that I am not a lawyer, or a judge, or a Constitutional scholar, or an expert on American history. I’m not a member of the NRA and I have no ties to the gun industry. Nor am I associated in any way with the pro-gun or the anti-gun lobby. In fact, I don’t even own a gun. I have tried to keep my bias out of this essay. I went wherever my research took me. Sometimes I liked it and sometimes I didn’t. But it would be dishonest not to include the latter.

That said, here’s the entire text of the Second Amendment to the Constitution:

“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.”

From the Founders perspective, the inclusion of this simple right in the Bill of Rights for their new Constitution was a no-brainer. This is because they were adamantly opposed to anything resembling a “Standing Army,” which they saw as a threat to liberty. A better alternative, they thought, was the formation of a citizen militia. In Federalist No. 29, Alexander Hamilton posits that:

“. . . it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

This intense objection to standing armies arose because of the mischief caused by the British Redcoats before and during the Revolutionary War. They would go house to house confiscating rifles, power and musket balls. The right to bear arms, then, was to put neighbors together to fight, if necessary, a foreign army

So, as explained by Hamilton and others, a trained militia would be a better choice and would have the additional advantage of being subject to civilian control when comprised “of the people” rather than full-time professional soldiers. This principle was first included in the Virginia Bill of Rights, which was adopted June 12, 1776, (three weeks before the Declaration of Independence was signed.) It provides in paragraph 13 thereof:

“That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence [sic] of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”

Following this in the Declaration of Independence, Jefferson enumerated the “long train of abuses and usurpations” by Britain, which included the following:

• • He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.                                                                                       
  • He has affected to render the Military independent of and superior to the Civil power.

• • For Quartering large bodies of armed troops among us.”

So, the die was cast. Standing armies were verboten; a well regulated militia would become the army of choice in the United States. In the early days of the republic, they were sometimes referred to as “Minutemen.” This understanding was implemented in the Articles of Confederation, (ratified on March 1, 1781,) where Article VI declares, in part, that:

“. . . every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”

Seven years later, the Constitution itself established that the militia, even though quartered in the individual States, would nonetheless be under control of the central government. Congress reserved powers over the militia as indicated in Article I, Section 8, paragraphs 15 and 16:

1. 1. 15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

1. 1. 16. 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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The Constitution also gave the President authority over the militia, and states in Article II, Section 2, that:

“The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . .”

Each of the first ten amendments to the Constitution, the Bill of Rights, was adopted in 1791, and drew heavily from the Virginia Bill of Rights. Therefore, when read with the foregoing history in mind, the language in the Second Amendment and its application to the right to keep and bear arms is clear and unambiguous. That right is predicated on, “A well regulated Militia, being necessary to the security of a free State.” (The 2^nd Amendment was also “incorporated” in 1791, which means it applies to the states as well as the federal government.)

The Founders may have thought of a militia in much the same way as Noah Webster’s 1828 dictionary defines it:

“Militia: The body of soldiers in a state enrolled for discipline, but not engaged in actual service except in emergencies; as distinguished from regular troops, whose sole occupation is war or military service.

 The militia of a country are the able-bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations.”

There were a series of militia acts beginning in 1792:

The Militia Act of 1792 established a Militia System for defending the nation and stated: That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, … every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock….

The First Militia Act of 1792, provided authority to the President to call out militias of the several states, “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe”.

The Second Militia Act of 1792, which provided for the organization of state militias and the conscription of every “free able-bodied white male citizen” between the ages of 18 and 45:

“. . . each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside …

 The Act went on to say that militia members were required to equip themselves with a musket, bayonet and belt, two spare flints, a box able to contain not less than 24 suitable cartridges, and a knapsack. Alternatively, everyone enrolled was to provide himself with a rifle, a powder horn, ¼ pound of gunpowder, 20 rifle balls, a shot-pouch, and a knapsack. Exemptions applied to some occupations, including congressmen, stagecoach drivers and ferry-boatmen.

The Second Militia Act had a sunset clause and expired in 1794. It was replaced by the Militia Act of 1795, which made the president’s authority to call out the militias permanent. It also made permanent the  provisions of the 1792 Act. As circumstances dictated, the Militia Act of 1795 was amended many times thereafter.

Of course, the Founders were also quite aware of the English common law idea of “Posse Comitatus,” which provides for “a county sheriff or other law enforcement officer to conscript any able-bodied males to assist him in keeping the peace or to pursue and arrest a felon;” i.e., a posse. Under this principle, law enforcement is left to State and local jurisdictions and the military (standing army) is prohibited from interfering in any way. (Sadly, there have been instances where the federal government has violated the rule of Posse Comitatus and sent in standing armies anyway. But, that’s for another essay.)

From the Revolutionary War and up through the Civil War and the Spanish-American War, militia were used extensively, albeit with limited effectiveness, as an adjunct to the regular military. In fact, the line between the militia and the regular army became more and more blurred. As a result, the Militia Act of 1903, as amended in 1908, organized the various state militias into the present National Guard system. With the passage of the 1916 National Defense Act approximately one half of the United States Army’s available combat forces and approximately one-third of its support organizations were to be made up of National Guard units. However, “State Defense Forces” (also known as State Guards, State Military Reserves, or State Militias) are military units that are supposed to operate under the sole authority of the States, but, in fact, are regulated by the National Guard Bureau through the Army National Guard.

Over the years, the proponents of the Second Amendment have suggested there is an ambiguity attached to the meaning of “arms.” Again using Webster’s 1828 dictionary, arms are defined as:

“Weapons of offense, or armor for defense and protection of the body.”

No doubt these were the “arms” referred to in the Second Amendment. And, for individual militia men, they were easy to “keep.” But as we know, “arms” have evolved substantially over the last 200 years and have become much more deadly and unwieldy, and making them more difficult to hang over the fireplace mantel. The point is that hunting rifles and guns used for sport are almost never referred to as “weapons of offense.”

Some have argued that the Second Amendment actually refers to a “group” right rather than an “individual” right. This argument is based on the understanding that a militia is a “body of soldiers” composed of “able bodied men.” Thus, the people (individuals) comprising the militia would have the collective “right to keep and bear arms.” But it follows from that logic that those persons who are not part of the militia would have no such entitlement; claims by the NRA to the contrary notwithstanding. After all, given the primary purpose of a militia, to “bear arms” really means to “wage war.”

Consider too that all equipment, supplies, uniforms, housing, transportation, training, and “weapons” needed by the militia/National Guard are government issue and are paid for, almost exclusively, by the Federal Government. Furthermore, there are minimum and maximum age limits for members of the National Guard. And so, again, the “people” entitled to “keep and bear arms” is actually a term of art, and in any case the weapons are kept in an armory, not by the soldiers themselves. As a practical matter, then, militia members no longer “keep” arms.

Another argument made by the gun rights proponents is that the “well regulated militia” clause was made part of the Amendment merely as but one example of the right to bear arms and included other purposes as well. There is no mention of the need to keep and bear arms to hunt for food, or to help protect family members and neighbors from harm, or to defend life and limb against a local insurrection or riot. All of these “needs” to have arms readily available were much more common in the late eighteenth century when we were a nation at peace and were not used as a justification for the militia. In fact, they were not “arms” at all – they were guns!

It is clear from history that the Founders specifically meant for the entitlement to keep and arms to inure to the benefit of a prepared, but part-time, military, and then protected that right through the Second Amendment so that no standing army could go around knocking on doors to collect the household firearms. I believe, therefore, that the Founders meant what they wrote – that the right to keep and bear arms is contingent on the need for a well regulated militia.

And a militia and a regular army are distinguished by the latter being a specific organization where soldiers are full-time; they are employed by the federal government. Whereas, the militia is comprised of volunteers who are otherwise occupied until called up for service. In fact, the history of the debate and legislative action regarding gun ownership is in connection with arms for the military. In fact, gun control was widely used in the nineteenth century as the nation expanded to the west.

For example, the City of Tombstone, Arizona Territory, had adopted an ordinance requiring all those entering the town to check their guns at the Marshal’s office and get them back when they left. At that time, Virgil Earp was then the Marshal with help from his brothers. The Earp’s and the so-called Clanton gang had been enemies for years. When the Clanton’s came to town on October 26, 1881, they refused to turn in their guns, thereby violating the ordinance. Marshal Virgil Earp, along with brothers Morgan and Wyatt, and Doc Holiday, tried to enforce the ordinance, which is famously known as the “Gunfight at the OK Corral.”

The 2nd Amendment was adopted in 1791, and the gunfight took place in 1881. The wording of the 2nd Amendment then was the same as it was in 1791, and as it is now. There were other towns in the old West that had similar ordinances. To my knowledge, none were ever found to be unconstitutional.

However, it should also be understood that gun ownership is one of those “inalienable rights” that Jefferson wrote about in the Declaration of Independence, and that this “right” is also a matter of common law. I believe gun ownership is also protected as an unenumerated right under the Ninth Amendment, which states,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Therefore, over time, and in consideration of the Founders original intent, the Second Amendment has become inoperable in respect of personal use. Here’s the logic:

1. 1. Absent any other means of protection, a militia is necessary for a free State,
   2. A militia is composed of State residents of a certain age who are part-time soldiers,
   3. To perform adequately, part-time soldiers need to be trained and trained well,
   4. The people who comprise the militia need to keep arms to carry out their function,
   5. The State is prohibited from interfering with militia members’ right to own arms for that purpose.
   6. Therefore, “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.”
   7. However, beginning in the early 20th century, a militia is no longer needed to secure a free State since the federal government has assumed that function through the National Guard and Reserve units.
   8. States no longer “regulate” their militia replacements, the National Guard.
   9. Arms as weapons have evolved substantially from muskets, bayonets, and swords,
   10. Arms to be used by the people making up the National Guard are not owned or kept by them but are provided by the federal government and keep in armories,
   11. Arms needed by the National Guard and guns owned and kept by the people are actually unrelated rights.
   12. Therefore, the right of the people to keep and bear arms as a necessary part of a well regulated militia is no longer necessary and the right no longer exists under the Second Amendment.

Of course, as explained above, I believe that the right to own guns, but limited as to use, eligibility, and practicality, is still protected by the Constitution; guns have long since become an integral part of our society. Gun owners and the militia are, for all intent and purposes, two separate groups.

The Tenth Amendment of the Bill of Rights says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

That gives the States (and local governments too) the right to control gun ownership in whatever manner and to whatever extent they deem appropriate.  For example, they do this already by specifying the weaponry permitted for use by law enforcement officers within the State.

On June 26, 2008, the Supreme Court, by a 5 to 4 decision in the case of District of Columbia v. Heller, ruled in favor of Heller and found that D.C’s law that prohibited handguns from being in homes along with certain restrictions on long guns were a violation of the Second Amendment.

In his majority opinion in this case, Justice Scalia seemed to invite reasonable gun control, writing:

“Like most rights, the right secured by the Second Amendment is not unlimited…It is … not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Of course, four other Justices disagreed. Thus, the meaning of the Second Amendment in 2008 was decided by a single vote. But some, including your humble scrivener, believe the court in this case, when considering the history and original intent of the amendment, added some conditions that were not there when the amendment was adopted in 1791. Scalia seemingly ignored the fact that the militia no longer existed as it did up until 1903 when the National Guard was created. Therefore, since a “well regulated militia” no longer exists, the right to bear arms is moot.

In fact, Warren Burger, the conservative Supreme Court Chief Justice, said in 1991:  

“The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.”

Legal rights and even unalienable rights carry with them a burden of responsibility as well. The government is obligated to take whatever steps are necessary, like Tombstone did, to assure that my right to keep from being shot is superior to your right to own guns. Those who ignore this responsibility do so at their own peril. Just ask the Clanton gang.

Therefore, in light of the forgoing, I believe the pro-gun advocates have a very strong Constitutional case for the right to own guns. It’s just not found in the Second Amendment.