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Original Intent of the Second Amendment
 
Clayton E. Cramer
 
Judge Coffey's recent article, "The 'Right' to Bear Arms?" is one of those reminders of why the legal profession can't be trusted with history. Rather than pick apart every component of his position, let me settle for demonstrating the falsity of the heart of his argument: original intent of the Second Amendment.
 
The Bill of Rights was adopted in response to the concerns of Antifederalists about the powers of the proposed central government. Throughout the thirteen states that eventually ratified the Constitution, these concerns were voiced in official requests for a Bill of Rights, and by Antifederalists in the ratifying conventions, newspapers, and pamphlets. The language of the various state requests for a right to bear arms make it clear that this was to be an individual right.
 
New Hampshire's convention requested the following addition to the Constitution: "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion."
 
[1] Pennsylvania's Antifederalists demanded an amendment: "That the people have a right to bear arms for the defence 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..."
 
[2] Three different states, New York,[3] Rhode Island,[4] and Virginia, all made the same request (with minor differences in capitalization only): "That the people have a right to keep and bear arms;..."
 
[5] In each case, this was a free standing clause, independent of the phrase "well-regulated militia" that appears in the Second Amendment.
 
The debates in the various state ratifying conventions are full of discussions of the hazards of a strong national government -- and throughout those debates, both Antifederalists and Federalists assumed that privately owned arms were a fundamental part of keeping such a national government restrained. The delegate T. Sedgwick to the Massachusetts convention insisted that the national government's power would be restrained by the knowledge that an army intent on enslaving "their brethren" could not do it. He asked, "if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?"
 
[6] In Virginia's convention, George Mason pointed to the example of Sir William Keith, royal governor of Pennsylvania in the 1750s, who advised the British Parliament, "to disarm the people; that it was the best and most effectual way to enslave them;..."
 
[7] In the same convention, Zachariah Johnson argued that there was little danger of the national government attempting something as foolish as establishing a national church. He pointed out the many reasons why the power of the national government was limited, including the size of the country, diversity of religious beliefs, and, "The people are not to be disarmed of their weapons."
 
[8] These are but a sampling of the dozens of statements made in pamphlets, conventions, and official documents, that emphasized that governmental power was restrained ultimately by fear of a popular armed uprising -- and this is not surprising in a nation born in an armed revolution, started by an attempt to confiscate privately owned arms at Lexington and Concord.
 
Not an individual right, but a right of the states? Ask the man who wrote the Bill of Rights: James Madison. His notes for the speech in which he introduced the Bill of Rights tell us, "They relate 1st. to private rights--"
 
[9] Can anyone consider the prerogative of a state to be a "private right?" Madison's proposed language is clear: "The right of the people to keep and bear arms shall not be infringed;..."
 
[10] The provision concerning the "well-regulated militia" was inserted before the right the keep and bear arms clause in committee, and contrary to Judge Coffey's claims, there is no extant debate that shows any dispute or even discussion concerning "the right of the people to bear arms" -- it was too uncontroversial to even discuss. The militia and the people were very nearly the same thing, anyway. At the Virginia convention, George Mason, one of the members of the Philadelphia Convention that wrote the Constitution, asked and answered the question, "Who are the militia? They consist now of the whole people, except a few public officers."
 
[11] Madison himself, in the Federalist Papers, made clear that in the unlikely event of a tyrannical national government, such an army would be opposed by the general population, "a militia amounting to near half a million of citizens with arms in their hands..."
 
[12] For those intent on seeing "the people" as a collective phrase, the U. S. Supreme Court recently stated its position that this phrase means the same thing throughout the Constitution and the Bill of Rights: "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
 
[13] To fully demonstrate the falsity of Judge Coffey's position would take several hundred pages, so I won't discuss the hundreds of decisions made by state supreme courts in the last two hundred years about the meaning of the phrase "the right of the people to keep and bear arms," nearly all of which have admitted that an individual right is thereby protected. I won't quote the various legal scholars of the early Republic who recognized the Second Amendment as protecting an individual right, or the many state constitutions that used similar language to protect an unambiguously individual right.
 
[14] I won't quote the many legal scholars who have recognized the Second Amendment as protecting an individual right, including such well-known liberals as Law Professor Sanford Levinson
 
[15] and former U.S. Supreme Court Justices Hugo Black
 
[16] and William O. Douglas.
 
[17] I won't engage in a detailed analysis of the flaws with the Presser v. Illinois (1886) decision; the same reasoning used in Presser to find the Second Amendment was not a limitation on state laws, was also used in that era to find the rest of the Bill of Rights was not applicable to the states. I will simply point out one straightforward assertion of the limitations of state power that is contained in Presser: "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."
 
[18] The history of the Second Amendment, and the analogs to it in the various state constitutions, is a fascinating, and at times, astonishing subject. Judge Coffey's account of it so contrary to nearly all the evidence, as to be false. -------
 
Clayton E. Cramer is a software engineer with a telecommunications manufacturer in Northern California. His first book, By The Dim And Flaring Lamps: The Civil War Diary of Samuel McIlvaine, was published in 1990.
 
Bibliography
 
  • [1] Charlene Bangs Bickford and Helen E. Veit, ed., Documentary History of the First Federal Congress 1789-91, (Baltimore, Johns Hopkins University Press: 1986), 4:14-15.
  •  
  • [2] "The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents", in John P. Kaminski & Gaspare J. Saladino, ed., The Documentary History of the Ratification of the Constitution: Commentaries on the Constitution, (Madison, WI, State Historical Society of Wisconsin: 1984), 3:19.
  •  
  • [3] Bickford & Veit, 4:20.
  •  
  • [4] Jonathan Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution, (New York, Burt Franklin: 1888), 1:335.
  •  
  • [5] Bickford & Veit, 4:17.
  •  
  • [6] Elliot, 1:97.
  •  
  • [7] Elliot, 3:379-380.
  •  
  • [8] Elliot, 3:645-646.
  •  
  • [9] Charles F. Hobson and Robert A. Rutland, ed., The Papers of James Madison, (Charlottesville, University Press of Virginia: 1977), 12:193.
  •  
  • [10] Hobson and Rutland, 12:201.
  •  
  • [11] Elliot, 3:425-426.
  •  
  • [12] James Madison, "Federalist 46", in Jacob E. Cooke, ed., The Federalist, (Middletown, CT, Wesleyan University Press: 1961), 321.
  •  
  • [13] U.S. v. Verdugo-Urquidez, 110 S.Ct. 1056, 1060, 1061 (1990).
  •  
  • [14] Clayton E. Cramer, "State Constitutions and the Second Amendment", American Rifleman, [February 1992], 22.
  •  
  • [15] Sanford Levinson, "The Embarrassing Second Amendment", in Yale Law Journal, 99:637-659.
  •  
  • [16] Hugo L. Black, "The Bill of Rights and the Federal Government", in Edmond Cahn, ed., The Great Rights, (New York, Macmillan Co.: 1963), 44-45, 54.
  •  
  • [17] William O. Douglas, "The Bill of Rights and the Military" in Edmond Cahn, ed., The Great Rights, (New York, Macmillan Co.: 1963), 146-147.
  •  
  • [18] Presser v. Illinois, 116 U.S. 252, 266 (1886).
 

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