TOWARD A NEW UNDERSTANDING OF THE SECOND AMENDMENT
 
-BY-
     David T. Hardy
 
 
 
Nearly two centuries ago, the American people voted to guarantee that "A
well regulated militia being necessary to a free State, the right of the
people to keep and bear arms shall not be infringed," a statement which
remains one of the most controversial provisions of our bill of rights.
Opponents of gun ownership usually emphasise the "well regulated militia"
clause, and claim the second amendment was intended to protect only
National Guard units. Gunowners usually stress the "right of the people to
keep and bear arms," and conclude that the amendment was logically meant
to protect an individual right to own and use arms.
 
Both approaches assume that the second amendment's two clauses had but one
purpose, and protect either organized reserve units, or the individual gun
owner. Yet would the First Congress have used two different clauses to
state one idea? It was a ruthless editor, deleting several of Madison's
amendments entirely and abbreviating the second amendment from his 46
words down to the final 24. Would two clauses that said the same thing
have survived this ordeal? 
 
Resolving this problem requires investigation, not just of the second
amendment, but of the history of our concept of freedom. This
investigation proves that the first Congress kept both the militia and
right to arms clauses because each establishes a different principle, and
each had a distinct history, philosophy, and constituency. But to see
this, we have to carefully examine the different histories of each portion
of the second amendment.
 
THE MILITIA AND THE FREE STATE
 
The origin of the militia clause lies, not in America nor even in England,
but in the medieval Italian city-state of Florence. Historians have long
known that around the year 1400, while most of Europe was under monarchy,

CONTINUED FROM PART 1)
    Florence suddenly became a "think tank" for republican thought. 
    The reason was only recently discovered. In 1399, Florence was 
    menaced by the forces of Giangaleazzo Visconti, who nearly 
    established himself as monarch of half of Italy, and whose 
    propagan dists portrayed him as a modern Caesar. The 
    Florentines--who included the greatest writers of the 
    age--responded by portraying their government as the noble 
    descendant of the Roman republic. Visconti died, a failure, in 
    1402; but the legacy of Florence's crisis remained. To a 
    Florentine, patriotism and republicanism were identical.
     
    Over the next century Florentines developed the theory of a 
    republic.  Their most widely read author was Nicolo Machiavelli, 
    who argued that only a militia, a universal citizen army, could 
    support a republic.  Machiavelli argued that a weak mercenary army 
    was useless to a republic, while a strong one would overthrow it. 
    Only when the citizens and the military were the same could the 
    army be both powerful and safe: "Rome remained free for 400 years 
    and Sparta for 800, although their citizens were armed all that 
    time; but many other states that have been disarmed have lost 
    their liberties in less than forty years." Arms also gave
    citizens the will to defend their rights: only the armed have
    virtu--pride, freedom and boldness: "among the other dangers of 
    being disarmed, it causes you to be despised."
     
    Machiavelli's republicanism entered English political thought 
    through James Harrington, a remarkable political thinker of the 
    1650's. Harrington argued that a stable republic rested upon the 
    triple relationship of land ownership (representing economic 
    power), voting rights (representing political power) and militia 
    duty (representing physical power). Let landowners be given the 
    franchise and organized into a militia, and the republic would be 
    forever secure. "Men accustomed to their arms and their liberties 
    will never endure the yoke." Harrington's followers--who became
    known as the Classical Republicans--expanded upon his theme: 
    "democracy is much more powerful than aristocracy," Henry Neville 
    wrote, "because the latter cannot arm the people for fear they 
    could seize upon the government."
     
    In England, the Classical Republicans were the proverbial day late and
    dollar short. England had long had a militia. As early as the seventh
    century, all freemen were required to serve in the fyrd, or militia, and
    to own arms. But by the Harrington's time these traditional duties were
    being supplanted by a standing army. Only in the American colonies did
    Harringtonian thought take hold; John Adams, our second President, was not
    the only American who claimed he learned politics from Harrington.
     
    The experiences of our Revolution reinforced the militia ideal. Historian
    Donald Higginbotham has called the American militia "absolutely essential
    to the launching and continuance of the Revolution," for it stripped Tory
    forces of their home ground and created an insoluable supply problem which
    would have ended the war even without victory by Washington's army.
     
       But while republicanism and the militia concept were a vital 
    component of revolutionary American political thought, they were not 
    early Americans' only philosophy, nor the only link between arms and
    freedom.
     
    THE INDIVIDUAL RIGHT TO ARMS
     
    The republican concept stressed stability and the survival of the state;
    it saw a free state as one preserved from outside occupation and internal
    tyranny. In the 18th century, Enlightenment, or "radical" thought added a
    new dimension: a free state was one where individuals retained certain
    rights even as against the government they elected.
    
    But what individual rights were beyond the powers even of a free Republic?
    The most basic answer: "unalienable" rights, those no human could give up
    or alienate. This concept came from Harrington's contemporary, Thomas
    Hobbes. Hobbes contended that governments were founded for one reason--to
    safeguard each citizen against violence. The right to defend oneself if
    the government failed to do so was thus unalienable: if the government
    failed to protect, it had already breached its contract with the citizen.
    "A covenant not to defend myself from force, by force, is always void...
    For the right men have by Nature to defend themselves, when none else can
    protect them, can by no Covenant be relinquished." Thus, at a minimum, no
    citizen could ever give up a right to self-defense--even if he desired to.
    European writers such as Pufendorf and Burlamaqui--always favorites of
    Jefferson--even argued that self-defense was a moral duty: a failure to
    defend against illegal attack was, like suicide, a moral wrong.
     
    To go from a right to self defense to a right to arms suitable for such
    defense was but a minor step, which came in the wake of the English Civil
    War. When, after that war, Charles II ascended the throne in 1660, he
    began to disarm the English people. A limited militia, composed only of
    his supporters, was ordered to seize the arms of all "disaffected
    persons." The 1662 Militia Act formally empowered militia officials to
    seize the arms of anyone they might "judge dangerous to the peace of the
    kingdom." His successor, James II, ordered vigorous enforcement of that
    Act. English governmental records of the 1680's are filled with reports of
    arms seizures, and orders for still more searches and raids.
     
    But James eventually went too far, and in 1688 he was overthrown and
    driven from the kingdom. Parliament enacted a "Bill of Rights" which all
    future monarchs must swear to uphold. Among the "ancient rights and
    liberties" thus protected was that of having "arms for their defense,
    suitable to their conditions and as allowed by law." (It is noteworthy
    that an early draft had proposed a citizen right to arms for the "common
    defense;" the House of Lords demanded that this be changed to "for their
    defense.")
     
    The 1688 declaration became the core of common law rights. Blackstone's
    great legal treatise labelled its arms clause as an extension of "the
    natural right of resistance and self-preservation." In the 1760's,
    American newspapers invoked Blackstone to establish that "it is a natural
    right which the people have reserved to themselves, confirmed by the Bill
    of Rights, to keep arms for their own defense." Thus, by 1688, an
    individual right to arms for self-defense was enshrined in British law. It
    was quite independent of the militia concept--after all, it was the James'
    militia that had been responsible for disarming individuals, and "Militia
    Act" which had legalized this!
     
    AMERICA, 1776: THE CONFLICT BETWEEN MILITIA AND INDIVIDUAL ARMS RIGHTS
     
    The difference between republican (militia-emphasizing) and Enlightenment
    (individual-arms-emphasizing) approaches became most distinct in 1776,
    when many newly-independent states adopted constitutions. The first,
    Virginia, considered several proposals, and two of these proposals
    embodied are direct ancestors of the second amendment. Thomas Jefferson
    submitted a thoroughly Enlightenment draft, which would have extended the
    electoral franchise to all taxpayers, regardless of land ownership, and
    failed to mention the importance of the militia. But Jefferson's draft
    establishes him as the father of the "right to arms" portion of the second
    amendment; he would have guaranteed that "no freeman shall ever be
    debarred the use of arms."
    
    George Mason, on the other hand, submitted a solidly republican approach.
    Mason would have limited the franchise to landowners, and, while leaving
    individual arms unmentioned, would have recognized that a "well regulated
    militia" was the "proper, natural and safe defense of a free State." Mason
    thus sired the "well-regulated militia" portion of the amendment. The
    Virginia legislature, dominated by major landowners, opted for a version
    of Mason's draft.
     
    Only a few months later, Pennsylvania likewise adopted a constitution.
    But, unlike Virginia, its convention was completely dominated by
    Enlightenment thought. (Pennsylvania's "establishment" had opposed
    independence; its "radicals," Jeffersonians to a man, hijacked the State
    constitutional convention). The Pennsylvania convention had copies of the
    Virginia declaration of rights and, John Adams tells us, it took its own
    bill of rights "almost verbatim" from these. But there was one very
    conspicuous exception. Pennsylvania entirely omitted Virginia's section
    praising the militia. Instead it substituted a clear individual rights
    guarantee: "the people have a right to bear arms for the defense of
    themselves and the State." Where the Virginia republicans had stressed the
    militia, the Pennsylvania Jeffersonians instead guaranteed individual
    rights to arms. They also made clear their emphasis on self-defense.
    Whereas Virginia had begun its Declaration with a statement that
    governments were founded to ensure, among other things, the public
    "safety," Pennsylvania opened with the note that all men "have certain
    natural, inherent and unalienable rights"--the first one listed being that
    of "enjoying and defending life and liberty."
     
    Later states essentially chose between these two models, depending upon
    which group was in control. But Jeffersonian democracy, with its emphasis
    on individual freedom, increasingly won out. In State after
    State--Connecticut, Kentucky, Indiana, Mississippi, Missouri, to name but
    a few--voting rights were given to all taxpayers, and individual rights to
    arms were guaranteed.
     
    Thus, prior to the Federal constitutional convention, Americans saw
    themselves as having two choices for bills of rights; a Classical
    Republican emphasis on the militia's importance to a State, or a
    Jeffersonian emphasis on rights to arms for the individual.
     
    THE FEDERAL BILL OF RIGHTS: BOTH THE MILITIA AND A RIGHT TO ARMS
     
    In 1787, delegates met to draft proposed amendments to the Articles of
    Confederation. Instead, they resolved to draft an entirely new document, a
    written constitution. This set the stage for verbal battles throughout the
    States, as conventions met to determine whether their proposal should be
    ratified.
     
    One major weakness of the constitution was its lack of a bill of rights.
    The demands for such a bill came from almost entirely from Jeffersonian
    groups; they predictably ignored the militia, and sought guarantees of
    individual arms. In Pennsyvania's ratifying convention, a crucial report
    drafted by Jeffersonians called for a bill of rights guaranteeing that "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."
    Instead of praising the militia, it treated it as a danger to individual
    rights, since it allowed everyone to be subjected to martial law!
    
    Alerted by the Pennsylvania delegates, other Jeffersonians pressed for
    individual rights to arms. In Massachusetts, Sam Adams called for a bill
    of rights guarantee that the new government would never "prevent the
    people of the United States, who are peaceable citizens, from keeping
    their own arms." Crucially, the New Hampshire convention, which gave the
    constitution the crucial ninth ratification, which made the document
    binding on the States which had already ratified, demanded security that
    "Congress shall never disarm any citizen except such as are or have been
    in actual rebellion."
     
    So far, the militia had received little emphasis; by 1787 Jefferson
    carried far more weight with Americans than did Harrington. But then came
    the Virginia convention, the one place where republicans as well as
    Jeffersonians were demanding a bill of rights. In 1776, Virginia had sired
    both George Mason's proposal to protect the militia, and Jefferson's
    proposal to protect individual arms. This time, the Virginians saw no need
    to choose between these ideas: both were vital. Patrick Henry lauded the
    militia and also argued that "the great object is, let every man be
    armed," while his colleague Richard Henry Lee both argued for a militia of
    landowners and claimed that "to preserve freedom, it is essential that the
    whole body of the people always possess arms, and be taught alike,
    especially when young, how to use them."
     
    By the end of the Virginia convention, even Mason, the archtypical militia
    supporter, accepted that British attempts to undermine the militia had
    been but a first step in a broader, more diabolical plan to strip
    Americans of all arms:
     
    "Forty years ago, when the resolution of enslaving America was formed in
    Great Britain, the British Parliament was advised by an artful man, who
    was governor of Pennsylvania, to disarm the people--that was the best and
    most effectual way to enslave them--but that they should not do it openly;
    but to weaken them and let them sink gradually, by totally disusing and
    neglecting the militia"
     
    The Virginia convention for the first time proposed a bill of rights that
    would both laud the militia and guarantee individual arms:
     
    "the people have the right to keep and bear arms; that a well regulated
    militia, composed of the body of the people trained to arms, is the proper
    natural and safe defense of a free State...."
     
    When, a year later, James Madison moved enactment of an American Bill of
    Rights, he took the future second amendment largely from the Virginia
    model. We know that the First Congress agreed to keep the two ideas
    separate, since the Journal of the First Senate shows it voted down a
    motion to add "for the common defense" to the right of arms guarantee. We
    also know that Americans of the time accepted that Madison's language
    covered the individual rights demanded by other spokesmen. Newspapers in
    Boston and Philadelphia described the future second amendment as
    incorporating Sam Adam's demands, including his clearly individual right
    to bear arms, while the Federal Gazette on June 18, 1789 explained that by
    Madison's draft "the people are confirmed by the next article in the right
    to keep and bear their private arms." (Madison wrote the author with his
    thanks, and noted that the article had been reprinted in all the
    newspapers in the then-capital.)
    
    EPILOGUE
     
    The militia ideal faded in the new nation. In 1792 Congress enacted the
    first Militia Act, which did require virtually every adult citizen to own
    a firearm and ammunition, but made no provision for their organization or
    training. (In 1903 this enactment was replaced with a statute, the present
    10 U.S.C. 311, which did define the militia to include most citizens, but
    failed even to specify their armament). Since the militia portion of the
    second amendment does not command Congress to do anything--it merely says
    that a "well-disciplined militia" is "necessary,"--it became no more than
    an artifact of Classical Republicanism, and the only part of the Bill of
    Rights that orders the government to take action.
     
    The second half of the amendment, on the other hand, had been proposed by
    the Jeffersonians, and together with their other concepts (voting rights
    for all taxpayers, protection of individual rights, greater economic
    freedoms) grew in the age of Jeffersonian democracy. Almost from the
    outset, Americans saw the individual right to arms, not the fading militia
    ideal, as the real meat of the second amendment. St. George Tucker, in his
    famous 1803 edition of Blackstone simply quoted the right to arms portion
    of the amendment, and added that "The right of self defence is the first
    law of nature." William Rawle, a friend of Washington whose 1825 "View of
    the Constitution" was used in many American law schools, did discuss the
    militia clause--only to vaguely conclude that States ought to adopt such
    laws "as will tend to make good soldiers." Turning to the amendment's
    second portion, he became quite concrete: " The corollary from the first
    position is that the right of the people to keep and bear arms shall not
    be infringed. The prohibition is general. No clause in the constitution
    could by any rule of construction be conceived to give to Congress a power
    to disarm the people."
     
    Where, then, did anyone get the idea that the right to arms was linked
    only to militia duty, and not to the individual right of self defense?
    This mistake is a modern one. The earliest court decisions--Kentucky in
    1822, Indiana in 1833, Georgia in 1837, to name only a few--recognized an
    individual right to arms. The Georgia Supreme Court in paricular noted
    that the second amendment protected "the right of the whole people, old
    and young, men, women and boys, and not militia only, to keep and bear
    arms of every description." Only in 1905 did a Kansas court invent
    (without any historical examination worth mentioning) the idea that the
    right to bear arms was meant only to protect the organized state militia.
    Since there is no question that the right to arms clause was more
    important to the the Americans who demanded a bill of rights--prior to
    Virginia's convention, few proposals even gave the militia a mention--this
    was truly a case of the tail wagging the dog! There had been framers who
    stessed the militia--but they were appeased by the first part of the
    second amendment; its right to arms clause was meant to answer entirely
    different critics, seeking an entirely different principle. In any event,
    few antigunners would really want to restore the militia system, which
    made gun ownership mandatory. Their claims actually seek to defeat both
    portions of the second amendment, and to circumvent George Mason's
    objectives as well as those of Thomas Jefferson.
     
                     -END-
    ADDENDUM:
     
    This article represents an extreme condensation of the thesis advanced by
    the author in his article "The Second Amendment and the Historiography of
    the Bill of Rights," JOURNAL OF LAW AND POLITICS, vol. 4, p.1 (1987). Also
    of interest may be the author's "Armed Citizens, Citizen Armies: Toward a
    Jurisprudence of the Second Amendment," HARVARD JOURNAL OF LAW AND PUBLIC
    POLICY, vol.9, p.559 (1986).