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

A review of David Starkey's “Monarchy” (U. K.)

"God save our gracious King!
Long live our noble King!
God save the King!

Send him victorious,
Happy and glorious,
Long to reign over us:
God save the King!"

- "God Save The King" (alternatively, "God Save The Queen"), adopted as the national anthem of the United Kingdom in 1745

Throughout the English-speaking world, people are fascinated by the British monarchy. Although the institution has very little power today, Americans still follow its every move, as though we had never fought a revolution against it. Despite all of this interest, there has sometimes been a trend in recent years - amongst historians, at least - to try and focus on what happened to "ordinary people" in history, and focus less on the traditional subjects of "politics and the military." For example, Ken Burns once said that the history of the United States is usually told as "a series of presidential administrations punctuated by wars," and that all other aspects of American history - including those dealing with ordinary people - are given short shrift, or even lost entirely. There is truth in this claim, and there is value in focusing on the lives of ordinary people - and on other celebrities from other areas. Why, then, do we focus so much on powerful political leaders? Why do we continue to be fascinated by the lives of kings and queens, when the "common man" is held up as the "greater ideal" for an enlightened democracy?

Queen Victoria

Why do we sometimes ignore the "ordinary people" of history?

I think part of it might be that the lives of ordinary people are usually not as well-documented as the lives of the rich and powerful. Thus, a dig by archaeologists that unearths details of an ordinary person's life doesn't get as much fame and sexiness as those that unearth details of a major monarch's life. For example, most people would rather hear more about Julius Caesar and his generals, than about the ordinary men and women that made up the empire he ruled. The same is true of American presidents and generals. But besides the fact that the lives of ordinary people are not as well-documented, there is another reason that historians focus so much on politics and the military (including monarchy). This is that the lives of ordinary people are affected quite extensively by what genius - or moron - is in power at the moment. For the history of most countries of the world, this necessarily entails a thorough examination of kings, queens, and royal families - on the monarchs and dynasties who are in charge at any given time. These kings are not just studied because historians are fans of royalty and juicy court gossip, although there is plenty of that. Rather, it is because the history of entire countries depends on these things, and on the "royal soap operas" that are so often found at the center of power.

Queen Elizabeth the First

When King John signed the Magna Carta, it was like signing a surrender document …

“No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”

– The original Magna Carta (1215), Section 39 – using the translation (from the Latin into English) that was offered by Yale Law School's “Avalon Project”

When King John of England signed the Magna Carta in 1215, it was tantamount to signing a surrender document, and was just as humiliating for him. Before, the authority of the king had been almost (if not completely) absolute. Now, it was limited, and his nobles had the king's signature to prove it. Why did the king agree to sign this document in the first place? If he wanted to continue to have absolute power (and he did), why would he agree to such limits upon his power?

King John of England

The short answer for this is that he had no choice – he was forced to sign this document by angry men wielding a sword at him. But how did these noblemen manage to force him to do this at sword-point? How is it that King John lost his grip on absolute power at this time, with his descendants having very little chance of recovering it later on?

The Magna Carta

How did the Virginia Declaration of Rights influence the Bill of Rights?

“That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety … That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”

– George Mason, in the “Virginia Declaration of Rights,” Sections I and II

George Mason actually refused to sign the Constitution of the United States …

George Mason was present at the Constitutional Convention, but he refused to sign the finished document. When the final draft was approved, he said that he “would sooner chop off [his] right hand than put it to the Constitution as it now stands.” Why, you might be wondering? Because the original Constitution didn't have a Bill of Rights; and having authored the Virginia Declaration of Rights earlier on in his career, he knew the importance of a Bill of Rights in a country's constitution.

George Mason, author of the Virginia Declaration of Rights

He wrote the Virginia Declaration of Rights in May 1776 (ratified June 1776)

Specifically, he had authored the “Virginia Declaration of Rights” in May 1776 – a document that was later approved in June 1776. It not only influenced the United States Declaration of Independence (passed in July 1776), but the United States Bill of Rights (which was passed in 1791). It drew upon influences from both American and British history, but it also made some original contributions of its own, as well as some improvements on previous ideas. It was also amended somewhat by Robert C. Nicholas and James Madison.

James Madison

It influenced our federal Bill of Rights in many ways, as I will show with some relevant quotes

The Virginia Declaration of Rights influenced 7 out of the 10 amendments in the United States Bill of Rights (which is 70% of them), and was thus a major influence on our Constitution. This post will show the most influential parts of the Virginia Declaration of Rights, and the parts of the United States Constitution that they influenced as well.

United States Bill of Rights

The Petition of Right influenced the United States Bill of Rights

“The history of Great Britain is the one with which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them.”

– John Jay, in the Federalist Papers (Federalist No. 5)

It sounds ironic to say it now, but a number of the Founding Fathers of the United States were actually against including a “Bill of Rights” within our Constitution. Some of them thought that it would be dangerous to do so, because they argued that any right not listed there would be construed “not to be protected” by the Constitution. They were partially wrong on this score, of course, and it would fall to other Founding Fathers to make sure that a “Bill of Rights” was later passed. But this early objection to the “Bill of Rights” may have been the reason that it eventually included a Ninth Amendment when it was passed, which 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.” (In other words, rights may not be withheld merely because they aren't listed in the Constitution.) This addressed the concern of those Founding Fathers who had objected to a bill of rights because of this.

Parliament of England

Some Founding Fathers were against having a “bill of rights” in the Constitution …

Nonetheless, when Alexander Hamilton listed examples of a “bill of rights” in one of the Federalist Papers, he was not endorsing them, but slamming them. He was holding them up as bad examples which should be avoided to avert danger from having a “comprehensive” list. Specifically, Hamilton said that “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants.” (Source: Federalist No. 84)

Alexander Hamilton

… while others were for it

Other Founding Fathers disagreed, and held them up as models of good laws that should be emulated to protect rights. Because of their well-deserved popularity, these laws had a great influence on the first ten amendments to the Constitution (the amendments that later became known as our “Bill of Rights”). They are thus deserving of our attention despite Hamilton's objections to them, and were positive influences on our Constitution once the “Bill of Rights” was passed. I plan to cover all of these documents in this series (plus a few others); but in this post, I shall focus exclusively on the “Petition of Right,” written by Sir Edward Coke. Two decades before King Charles the First was beheaded in the English Civil War, he was forced to sign this document. (And he wasn't too happy about signing it … )

Petition of Right, 1628

Aristotle and The Church of Jesus Christ of Latter-Day Saints

One of the great Macedonian kings was Philip II of Macedon. He fathered the boy who would become Alexander the Great, and he hired a tutor to teach this now-famous son. The tutor was another famous person that you've probably heard of, incidentally, because it was none other than Aristotle, the Greek philosopher. Our church is among a number of those whose leaders have quoted from Aristotle, incidentally, as I will show below.

Aristotle

King Philip II of Macedon, who hired Aristotle to tutor his son