Sparks Commentary: The Second Amendment: Protecting the gun rights “of the people”

"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."

- Second Amendment to the United States Constitution (ratified 1791)

Does the Second Amendment apply only to the "militia," or to the whole "people"?

The Second Amendment says that "the right of the people to keep and bear arms, shall not be infringed" (Source: Second Amendment). Supporters of the right to "bear arms" have long pointed to this portion of the amendment as evidence for legal gun rights possessed by individuals. But gun control advocates point with equal fervor to the prior clause of this amendment, which said that "A well-regulated militia, being necessary to the security of a free State ... " (Source: Second Amendment). They argue that this mention of the phrase "militia" somehow means that the gun rights apply only to the country's armed forces, and therefore cannot be legitimately possessed by the whole "people." If this argument is to be believed, then it would seem that there couldn't have been much of a distinction between the "militia" and the "people," or this latter clause about the "right of the people" would have been a non sequitur that didn't follow from the previous clause (which was presumably supposed to support it, if this amendment's context is any clue here). But there is now a greater distinction between the two than there was then, because the term "militia" is currently understood in a very narrow sense that didn't apply at the time that this amendment was first written.

"Brown Bess" musket and bayonet, which was used in the American Revolution

What distinctions did the Founding Fathers make between the "militia" and the "people"?

Because of this, gun control advocates maintain that a constitutional right to "bear arms" applies only to a narrow portion of the country's population. Thus, they argue, it cannot be understood to apply broadly to the whole "people," as people like me would hold. Thus, it would seem appropriate to correct the record here, and to show that the term "militia" was actually understood to mean something broader when this amendment was written. Gun control advocates may be partially correct in one respect, I should acknowledge here, when they say that not everyone was always included under the term "militia." Nonetheless, this definition was much broader than contemporary interpretations would usually admit today. In the context of the amendment itself, it is clear that it was never intended to be restricted to the "militia" anyway (as I will show later). But even if it was, the concept of a "militia" can be shown to be much broader than the mere armed forces of this country. It should thus be understood broadly today, if the original intent of the amendment is to be upheld.

American infantry in the Revolutionary War

The Constitution actually distinguished between a "militia" and an "army"

The most narrow interpretation of the word "militia" today is that it applies only to the National Guard, although some would also include the entire military and the police force (if we're talking about a less extreme form of this argument). While there wasn't much of a distinction between the "militia" and the "people" at this time, there actually was a distinction made between the "militia" and the "Army," as the following clause from the Constitution itself would make clear: "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" (Source: Article 2, Section 2, Paragraph 1). Thus, the term "militia" was defined as distinct from the "Army and Navy of the United States." It is organized at the state level, rather than the federal level. This is why many today would consider the modern equivalent of this to be the National Guard (and rightly so); and why they would exclude the Army and Navy from this category, which are instead organized at the federal level. This argument is correct that the Army and Navy are not part of the "militia"; but to deny gun rights to the Army and Navy on this basis would be to ignore the inherent attributes of a military. Indeed, the military is a force that must, by its very definition, be armed (at least some of the time). If the military couldn't bear arms, then it wouldn't truly be a "military," it would seem. Thus, the Constitution's use of key words like "Army" and "Navy" necessitate its being armed by definition. We can thus deduce its constitutional gun rights, irrespective of its connection with a "militia." Since most people would agree with me that the military does possess legal (and constitutional) gun rights, irrespective of its connection with a "militia," I will not spend much time responding to this argument here. Rather, I will respond to the argument that "the people at large" would not possess gun rights; since this is the more common idea (I acknowledge with some sorrow). A group may still count as a "militia" under this constitutional definition, it would seem, even if it is not "called into the actual service of the United States" (in the words of the clause quoted earlier). Even in peacetime, a group may still count as a "militia."

Storming of Redoubt #10 at the Siege of Yorktown, a wartime action that involved militia

The Founding Fathers feared "standing armies," and made sure to limit their power ...

In the Founding Fathers' time, it was believed that standing armies posed a serious and imminent threat to the people's liberties. Americans thus looked with fearful eyes at the various other countries that were run by their own military establishments. This is why they inserted a clause into the Constitution saying that the Congress shall have the power "To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years" (Source: Article 1, Section 8, Paragraph 12). It was thought that if one gave the Army perpetual funding that did not have to be renewed, then the Army would be able to exist perpetually without any dependence on the people, or the legislature that these same people had elected. By forcing them to renew their budgets every two years, you would thus make sure that the Army was on a short leash (according to this argument). Without the power to tax, the Army is thus unable to renew its own budget (or live off its previous budgets). Thus, it must instead depend on the Congress (which is elected by the people) to continue its funding. This is not only a legislative check on the executive branch - a branch which the Army is a part of - but a way to keep the military firmly in the Congress's control, as well as in the president's control. Notably, these budgetary renewal requirements do not apply to the Navy, since the Constitution empowers Congress "To provide and maintain a navy" without any limits on the duration of the funding (Source: Article 1, Section 8, Paragraph 13). The Navy, it seems, was not considered "dangerous" to the people's liberties in the same way that the Army was. Another amendment from the Bill of Rights said that "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law." (Source: Third Amendment) Although this Third Amendment was primarily a reaction to prior abuses from the British military (many of them during the American Revolution), it was also a reaction to the perceived - and possibly real - dangers of standing armies, and the military's ability to force itself into the houses of civilians in these peaceful prior times without the consent of the legislature.

Thomas Gage, the British officer that was in charge of the 1768 occupation of Boston

A group need not be "employed in the service of the United States" to qualify as a "militia"

The Constitution also says that the Congress shall have the power "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions" (Source: Article 1, Section 8, Paragraph 15). Thus the president is dependent upon the Congress for the ability of "calling forth the militia." The Constitution also adds that the Congress shall have the 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, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress" (Source: Article 1, Section 8, Paragraph 16). Thus, a group need not be "employed in the service of the United States" to qualify as a "militia." The states have the power of the "appointment of the officers," according to this clause, and "the authority of training the militia" according to the discipline prescribed by Congress. This is another way for Congress to keep itself in the picture, and make sure that the president does not grow too independent of the people. I might also mention briefly that the Congress shall have the power "To make rules for the government and regulation of the land and naval forces" (Source: Article 1, Section 8, Paragraph 14), thus allowing it to maintain some additional control over the military.

President George Washington inspects the troops before they go to fight in the "Whiskey Rebellion" in 1795

Alexander Hamilton said that a "well-trained militia" protects against rogue standing armies ...

I now turn to the writings of the Founding Fathers themselves, and what they said about the "militia" in the Federalist Papers. Alexander Hamilton wrote there that "The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, 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." (Source: Federalist No. 29) Thus a "well-trained militia" protects against the dangers of standing armies, and the army can never be "formidable" to the liberties of the people as long as one exists.

Alexander Hamilton

James Madison said that a "militia" is much larger than a "standing army" ...

Now I turn to the author of the Second Amendment himself, who is James Madison - the Father of the Constitution and the Bill of Rights. Before he wrote the Second Amendment, he had been another contributor to the Federalist Papers along with Alexander Hamilton, and wrote nearly half of those famous essays. In one of these essays, he wrote that "The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence." (Source: Federalist No. 46) If Madison's high-end estimate of "thirty thousand men" were indeed "one hundredth part of the whole number of souls" (as he said), then these 30,000 times 100 would equal 3,000,000 people (or three million). "Half a million of citizens," or 500,000 (the number that Madison gave for this militia) divided by the round number of 3,000,000 (the total number of people, according to Madison's calculations) would actually amount to exactly one-sixth of the population of the United States (or 16 ⅔ %). With the current population of the United States being 326 million people today, 16 ⅔ % of the population would be upwards of 54 million Americans. The combined total of the United States military and National Guard, by way of comparison, is less than 3 million Americans, which would seem to discredit the argument that Madison intended for gun rights to be restricted entirely to them.

... and would be a full two-thirds of "the number able to bear arms"

One other thing about Madison's math might be noted here, which is that the percentage would be even higher if it were based upon the actual "number able to bear arms." If Madison's high-end estimate of "thirty thousand men" were indeed "one twenty-fifth part of the number able to bear arms" (as he said), then these 30,000 times 25 would equal 750,000 people. "Half a million of citizens," or 500,000 (the number that Madison gave for this militia) divided by 750,000 (the "number able to bear arms," according to Madison's calculations) would amount to exactly two-thirds of this "number able to bear arms" (or 66 ⅔ %). This is far more than a majority of this "number able to bear arms," which would again suggest that Madison never intended for gun rights to be restricted to a narrow segment of the eligible population (namely, those who are actually able to "bear arms"). Furthermore, if Madison's math is correct, then the numbers of a "militia" in his time were at least 16 times greater than those of a "standing army" ("half a million" - or 500,000; divided by "thirty thousand men," or 30,000; the high-end estimate for Madison's army). Thus a "well-regulated militia," as understood by Madison, is much greater than a "standing army," and included a significant portion of the population. More importantly, the size of a "militia" is not held to be fixed here in relation to the people. Thus, Madison's number should not be taken as a "maximum limit" of some kind, since people who are regular citizens one day could be serving in a "militia" the next day.

James Madison

James Madison thought it possible to shake off the "yoke" of tyranny with the aid of "arms" alone

In the Federalist Papers, James Madison also wrote that "It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes." (Source: Federalist No. 46) The use of the double negative is key here: If it is "not certain" that they would "not be able to," then it is at least possible that they would be able to shake off their yokes "with this aid alone" (namely, with the aid of arms and weapons). From the author of the Second Amendment, this is a high endorsement of gun rights. Moreover, it agrees with the position of modern gun advocates that a government monopoly on guns would be dangerous. (Indeed, weapons are an excellent defense against every form of tyranny, as Madison acknowledges here; and would help to neutralize the threat of a police state from a tyrannical government.)

James Madison

Defining "the people" too narrowly jeopardizes other rights besides the right to "bear arms" ...

Returning for a moment to the original wording of the Second Amendment itself, the wording says that "the right of the people to keep and bear arms, shall not be infringed." (Source: Second Amendment) As pointed out before, supporters of the right to "bear arms" typically point to this portion of the amendment to bolster their arguments for legal gun rights. But gun control advocates will instead point to the prior clause of this amendment, which said that "A well-regulated militia, being necessary to the security of a free State ... " (Source: Second Amendment). To repeat something I said earlier by way of review, it would thus seem that there couldn't have been much of a distinction between the "militia" and the "people" if this argument is to be believed. Otherwise, this latter clause about the "right of the people" would have been a non sequitur that didn't follow from this previous clause (which was presumably supposed to support it, if this amendment's context is any clue here). Gun control advocates would thus try to define the "militia" narrowly, and may inadvertently define "the people" narrowly in the process. Yet few of them would ever want to apply this narrow definition of "the people" that they use here in other contexts besides gun rights, as I will show below.

United States Bill of Rights (which included the Second Amendment)

... such as the right to vote, the right to protest, and the right not to be searched

For example, the Constitution says that "The House of Representatives shall be composed of members chosen every second year by the people of the several States" (Source: Article 1, Section 2, Paragraph 1). It says in a later amendment that "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof" (Source: Seventeenth Amendment, Section 1). If we were to limit "the people" only to the militia (as gun control advocates would sometimes advocate), then no one outside the militia could vote in these Congressional elections. The Bill of Rights mentions "the right of the people peaceably to assemble" (Source: First Amendment). It also mentions "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" (Source: Fourth Amendment). The Bill of Rights even protects a number of other rights that are not written down, because still another amendment said that "The enumeration [or "listing"] in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Source: Ninth Amendment) If we were to limit "the people" only to the "militia," then these rights would not really apply to anyone that is outside the "militia," which doesn't seem like a state of affairs that gun control advocates should particularly want. Some might want to apply their definition selectively to the Second Amendment, and use a much broader definition of "the people" to interpret these other clauses about their own protest rights and voting rights. Whatever this selective interpretation values, it would seem not to value the original intent of the Constitution. Rather, it would seem to read conflicting definitions into the document that are inconsistent with one another.

Crowd protesting the "stop and frisk" policies of the New York Police Department (NYPD), 2012

The Second Amendment doesn't restrict gun rights to the "militia" anyway, and never did

In the words of this amendment itself, "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." (Source: Second Amendment) The key phrase of this amendment is about "the right of the people," not the right of the militia. Thus, it would seem that all attempts to limit these rights to a "militia" require these words to be used interchangeably here. Otherwise (as I said earlier), then it would seem that this latter clause about the "right of the people" would have been a non sequitur that didn't follow from the previous clause. To see these words' interchangeability in the context of the amendment itself, one need look no further than the amendment's own wording, which says nothing about the right to "bear arms" being restricted to a "militia" (despite all the modern claims to the contrary from revisionist gun control advocates). However Madison may have understood this word in some of the other contexts quoted here, his operative clause in this amendment said that "the right of the people to keep and bear arms shall not be infringed." Moreover, this cannot be supported by the "necess[ity]" of a militia for the "security of a free State," unless the context defines this "militia" as functionally equivalent to "the people."

Footnote to this blog post:

In the Federalist Papers, Alexander Hamilton also wrote that "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year." (Source: Federalist No. 29)

If you liked this post, you might also like:

The Bill of Rights: Historical context and strict construction

The First Amendment: Protecting religion from government (and not the other way around)

The First Amendment: Protecting freedom of speech and freedom of the press

The tyrannical police state: The worst nightmare of the Founding Fathers

Actually, the death penalty is constitutional (as the Fifth Amendment makes clear)

Beginning of a series about

The Constitution