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Bench & Bar
The newsletter of the ISBA’s Bench & Bar Section

April 2017, vol. 47, no. 9

What does the Second Amendment really mean?

The Second Amendment is a dominating and divisive issue in today’s political discourse. The 2008 and 2010 Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago, which struck down handgun bans as unconstitutional, have inflamed this discussion. Further, in light of mass shootings around the country in recent years, we have been inundated with demands for either limitations on gun ownership or limitations on government interference with gun ownership by private citizens. Statistics on gun ownership and gun crimes are constantly thrown at us, as is often emotionally charged rhetoric advancing one position or another. Yet, proponents and opponents of gun ownership in the United States rarely discuss, in a detailed fashion, the Constitutional framework or historical legal understanding governing the Second Amendment or its application to the states through incorporation in the Fourteenth Amendment’s Due Process Clause. This article will briefly attempt to do so.

The text of the Second Amendment, as ratified by the States and authenticated by Thomas Jefferson, then-Secretary of State, reads: “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.” Gun control advocates give significant attention to the “well regulated militia” wording. The general idea offered by such advocates is summed up in a 2012 New Yorker article called “So You Think You Know the Second Amendment?” That article argues (i) that the Second Amendment is divided into two clauses (the “militia clause” and the “bear arms clause”) and (ii) that the “militia clause” trumps the “bear arms clause” because the Second Amendment merely “conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.” (See, e.g., <newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment>.) Proponents of this argument seek to convince the public that the framers of the Constitution never intended to give the people an individual right to keep and bear arms.

Gun-rights advocates, perhaps not surprisingly, take the opposite approach, focusing on the “keep and bear arms” portion of the Second Amendment. Often the “well regulated militia” portion of the Amendment is deemphasized or ignored in arguments that the Constitution prohibits the government from regulating or even establishing reasonable limits on civilians having unfettered access to high-tech, military-grade ordnance. (See e.g., Matt MacBradaigh, “Gun Control Myth: The Second Amendment Makes Clear Guns Aren’t Just For the Military,” PolicyMic, The Brenner Brief, The Bell Towers, Vocativ and Tavern Keepers, January 28, 2013.)

These respective positions are actually helpful in framing several important questions about the Second Amendment, namely:

(1) What does the term “militia” mean in the context of the Constitution and in the minds of the framers?

(2) Did the framers intend to give the right to “keep and bear” arms to individuals?

(3) Having answered the first two questions, can the Second Amendment be broken into two clauses?

This article will attempt to answer each of these questions succinctly.

A. The Definition of the Word “Militia”

As discussed above, one of the main points of contention in the arguments surrounding the right of individual citizens to “keep and bear arms” is the use of the term “Militia.” Most of these arguments assume definitions—often diametrically opposed to those their opponents use—such that discussions quickly break down as those of differing views start talking over each other. For example, some argue that the “Militia” is the U.S. Army or National Guard. (See e.g. David McGrath, “NRA version of 2nd Amendment Lacks Common Sense,” Chicago Tribune Publishing, June 5, 2015.) As with all discourse, establishing a common definition is necessary to facilitate rational discussion. So we will start with defining the term “militia” as used in the Constitution.

1. Why the term “well regulated Militia” cannot refer to the U.S. Army or National Guard

A well-established principle in Constitutional analysis is that the document must be read in its entirety. Accordingly, the Second Amendment, as it currently exists, must be framed in the context of the rest of the Constitution. This exercise can help us eliminate potential erroneous definitions of the term.

Article I, Section 8 sets forth the enumerated powers of Congress, which include the power “To raise and support Armies...” Separately, it authorizes Congress “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions” and “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.” Further, Article II, Section 2, setting forth the powers of the President, states “The President shall be Commander in Chief of the Army and Navy, and of the Militia of the several States, when called into the actual Service of the United States…” In differentiating the terms Army from Militia, on its face the Second Amendment cannot mean the Army. It must mean something else. But under that plain language, the powers of Congress and the President were limited to only those parts of the “Militia” that would be called to national service (which includes states’ National Guard forces—designed to be called up into national service). Therefore, the Constitution contemplates that the “Militia” is something greater than and different from the National Guard (which definitionally are those elements called into service of the United States.) Thus the term “Militia” refers to something other than the Army and National Guard.

Separately, the 14th Amendment necessarily seems to remove the term “Militia” from applying to official state militias. Though long debated, the Supreme Court settled incorporation of the Second Amendment to the states through the 14th Amendment in McDonald v. City of Chicago (2010). The entire basis of the “incorporation doctrine,” which successive courts have used to apply various amendments in the Bill of Rights to the states, is derived from either the due process or privileges and immunities clauses of the 14th Amendment. And though successive courts used “selective incorporation” to identify limits on states in interfering with these rights, if the “right to keep and bear arms” is a right of citizens, it too should properly apply to the states. If states cannot abridge the “right of the people to keep and bear arms,” then, definitionally, the term “militia” cannot be satisfied with the mere existence of state militias. Accordingly, it must mean something else.

2. How the term “Militia” was popularly understood at the time of the Constitution

Historians dislike interposing of modern beliefs or ideas into the past. The tendency of some to do this is often referred to as the “Flintstone Fallacy”—after the popular cartoon which placed modern concepts in a pre-historic context. Just because people today tend to refer to the term “militia” as an institution of government does not make it so. Therefore, an exploration into the historical use of the term is important. And in this, it is key to understanding that our founders, who were citizens of the Crown of the British Empire, were legal students of British concepts—including that of the term “militia.”

From at least the enactment of the English Bill of Rights in 1689 and continuing through the Revolutionary War period, the British Empire (a) maintained a large navy as the first line of defense of the Empire; (b) maintained a standing Army and various standing colonial militias (including in each American colony) for defensive deterrence and to fight foreign wars; and (c) relied on informal civilian militias to provide additional domestic defense and to preserve domestic order.

The British Empire maintained various “official military” forts (e.g., Fort Carillon/Ticonderoga, Fort Niagara, Fort William Henry, etc.) for use by the standing Army and official colonial Militias in North America, under the ostensible control of local authorities, to protect the frontiers of its Colonial territories. However, of necessity, it also permitted local settler militias to be formed to defend local communities from actual or perceived threats. Examples of privately-built local forts constructed on individual homesteads (e.g., Prickett’s Fort (West Virginia), Nutter Fort (Virginia), Light’s Fort (Pennsylvania), etc.) are simply too numerous to list in this article.

Indeed, in 1766 (ten years before the Declaration of Independence), Justice William Blackstone specifically referenced this factual history when setting forth the common law definition of the term “militia,” which he stated was an “auxiliary right of the individual, supporting the natural rights of self-defense, resistance to oppression, and the civic duty, to act in concert with his neighbors in defense of the state.” (Blackstone, J., Commentaries on the Laws of England, Page 139, Book the First, Chapter the First, London, 1766.) In 1774 (just before the American Revolution), the Colony of Virginia alone was speckled with literally hundreds of civilian militia forts, palisades, blockhouses, and stations where families would gather in times of danger. These civilian militia forts would be stocked with supplies and food that could last weeks and would be defended by civilian militiamen—able-bodied men—armed with muskets and other weapons (in several cases, some privately-owned cannons).

This legal and popular understanding of the term “Militia” was the one known to the likes of James Madison and the other framers, as they drafted the Constitution. Indeed, the debates in the Convention, the history and legislation of colonies and states, and the writings of approved commentators, show plainly enough that the term Militia comprised nothing less than all males physically capable of acting in concert for the common defense. Indeed, Alexander Hamilton, in his Federalist Paper No. 29, Concerning the Militia (New York 1788), specifically clarified that the phrase “a well regulated militia” meant something totally different than that of a “standing army” since “standing armies are dangerous to liberty” but “militias” consist of “citizens … who stand ready to defend their own rights and those of their fellow-citizens,” and a “well-regulated militia” consists of an “excellent body of well-trained militia, ready to take the field” who would “be, little, if at all, inferior to [a standing army] in discipline” if such standing army was ever used by the State to try to take away the liberties of its citizens. Additionally, James Madison, in his Federalist Paper No. 46, The Influence of the State and Federal Governments Compared (New York 1788), pointed out that the American people should not fear threats of force by an army regulated by Congress precisely because of the right of the citizenry to form militias by keeping and bearing arms and joining together in common defense: “The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed 100th part of the whole number of souls; or one 25th part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than 25- or 30,000 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…” (Id.) “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.” (Id.) “Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.” (Id.) Or, as the U.S. Supreme Court, citing to Blackstone’s Commentaries, Adam Smith’s Wealth of Nations, and Osgood’s The American Colonies in the 17th Century, defined a militia as “A body of citizens enrolled for military discipline.” See United States v. Miller, 307 U.S. 174 (1939). But of critical importance is the understanding that “ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Id.

Based on the above, it is clear that the word “militia” likely refers to the common-law definition of “militia” set forth by Justice Blackstone—which, as stated, was all private individuals capable of forming groups that would gather together for self-defense.

B. The Right to Keep and Bear Arms is an Individual Right

Now that we have a working definition of the term “Militia” as popularly understood at the time of the drafting of the Constitution, we turn to whether the right stated in the Second Amendment—to keep and bear arms—is a “communal right” or an “individual right.” To do this, we should look at these rights in the context of the other rights identified in the Constitution.

The entirety of the Constitution, it is understood, arises from the principles enunciated in our nation’s founding document, the Declaration of Independence, in which Thomas Jefferson adopted, as a basis of our government’s right to exist, the principles of the social contract:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

As John Locke stated in his Second Treatise on Government, every just society exists based on a “social contract” where each man (citizen) surrenders certain freedoms (e.g., the freedom to take the property or happiness of others by overpowering and/or killing them - as animals do in their natural state) in exchange for the expectancy that others cannot do the same to them. Under this social contract, the purpose of government is to protect all of its citizens impartially—preserving certain inalienable rights (life, liberty, property, etc.) while preventing each man from acting as his own judge, jury, and executioner.

With this lens, historians and jurists understand the purpose of the Bill of Rights was to expound on the above principles and to set forth explicit language in their goal of limiting government interference with the preexisting inalienable rights of the kind recognized in this country’s founding document—the Declaration of Independence.

Indeed, the Supreme Court, when it took up the issue of the District of Columbia’s handgun ban in Heller, engaged in a textual analysis of the words “right of the people,” as used in the Second Amendment, to determine that it must apply to individual (rather than collective) rights. As the Heller Court observed, those identical words—“right of the People” - are used in other Bill of Rights Amendments that the Supreme Court has previously and unequivocally defined as individual rights: In the First Amendment’s Assembly-and-Petition Clause the term is used as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Emphasis added.)

And the Fourth Amendment’s Search-and-Seizure Clause states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.)

Thus, the Heller Court’s determination that the identical language as used in the Second Amendment should also refer to individual rights is hardly baseless or absurd. Further, the Heller Court was certainly not the originator of the concept of the right to bear arms as an individual right.

The historical analysis above about privately-owned citizen forts shows that common law presumed a right to bear arms. This extends back to at least the English Bill of Rights in 1689, which explicitly refers to an individual’s right to be armed when it reversed King James II’s presumably illegal disarmament of Protestants, explicitly granting them the right to “Arms for their Defence suitable to their Conditions and as allowed by Law.”

Moreover, a review of antebellum American case law shows a plethora of state and federal decisions all recognizing an individual right to be armed. See, e.g., Nunn v. State of Georgia (1 Ga. (1 Kel.) 243 (1846) (Georgia Supreme Court deeming state ban on individual gun ownership unconstitutional as Second Amendment violation.) The Supreme Court even addressed the issue, in dicta, in the infamous decision of Dred Scott v. Sandford, 60 U.S. 393 (1857). There, the Court reasoned that if it held individual African-Americans were entitled to all the rights and benefits under the Bill of Rights, it would be forced to hold them entitled to “the full liberty of speech in public and in private upon all subjects upon which [every other] citizen might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

The Court recognized this individual right more explicitly in U.S. v. Cruickshank, 92 U.S. 542 (1876) (“This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed…”). Indeed, for over a century, the Supreme Court has recognized that “the law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the ‘Bill of Rights,’ were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case.” Robertson v. Baldwin, 165 U.S. 275 (1897).

Given the above, stating anything approaching what periodicals like the New Yorker assert (e.g., that “the amendment conferred on state militias a right to bear arms—but did not give individuals a right to own or carry a weapon.”) is simply unsupported by the factual and legal history of the Second Amendment.

C. In the Context of the Above, The Words “Well Regulated Militia” Do Not Trump the Right to Keep and Bear Arms

Taking the above in its entirety, attempts to break down the Second Amendment into separate clauses is erroneous. Using (i) the historically understood term “Militia” (defined by Blackstone as all citizens capable of service), (ii) recognition that the right to keep and bear arms is an inherent right pre-existing the Constitution; and (iii) the context of the use of “Militia” in Articles I and II of the Constitution, the Second Amendment’s intent becomes clear: Although the Congress and the President have authority to call up the citizenry in the service of this country (e.g. selective service, the draft, etc…), the government cannot interfere with groups of private citizens from banding together in times of danger.

Even if the clauses could be broken down, the “keep and bear arms” clause would trump the “militia” clause. In the context of the Second Amendment, the “militia” clause is merely an explanatory reason for the “keep and bear arms” clause. It does not make sense for the reason to trump the rule. It only makes sense the other way around. If “the right of the people to keep and bear arms” were truly ambiguous, as the above discussion is intended to refute, the militia clause might resolve the ambiguity. But there is no ambiguity. The plain meaning of “people” having the right to keep and bear arms means individual people, not merely some collective group of people.

Indeed, events about a dozen years ago, when Hurricane Katrina devastated the U.S. Gulf Coast, illustrate the proper intent of the Second Amendment. At that time, civil society simply broke down. Law enforcement officers had either abandoned their posts or were unable to cope with the devastation. Further, neither state nor federal forces were able to easily access those communities that were devastated. And citizens were left victims of those law-breakers with guns. Indeed, for the days following the hurricane, stores were looted, homes were robbed, and people were beaten by groups of armed thugs brandishing weapons. The only people who stood any chance of not being victims were those lawfully armed. And they exercised the true intent of the Second Amendment: to band together with their neighbors for mutual protection.

Conclusion

The phrase “well regulated militia” in the Second Amendment cannot be interpreted to mean the same thing as the Army or National Guard (which constitutes only those portions of the Militia referenced in Articles I and II of the Constitution, called forth into the “actual service of the United States”). It is also separate from state militaries. Rather, along with the rest of the Bill of Rights, the Second Amendment sets forth restrictions on governmental interference with personal liberties. This “right” to keep and bear arms in the Second Amendment uses the same language as two other deeply held “a fortiori” rights that rest with individuals. The language of the Second Amendment is not mere surplusage (an abhorrent proposition under ordinary rules of construction). And the term was commonly understood to refer to all persons capable of defending themselves, their communities, their states, and their country.

This is not to say that there is a very appropriate discussion regarding whether and to what extent Congress (or the States) can regulate or establish reasonable limits on the Second Amendment, subject to similar heightened scrutiny tests that would be applied to other inalienable rights set forth in the Bill of Rights. Moreover, as Heller suggests, certain weapons of war may even be outside the scope of Second Amendment protection. With its October 2015 decision in Shew v. Malloy, the Second Circuit entered this discussion, applying heightened scrutiny to New York and Connecticut statutes enacted after the December 2012 Newtown school shootings to ban certain types of semi-automatic weapons and large-capacity ammunition magazines. In Shew, the Second Circuit upheld the core elements of each statute while also striking down a provision of the New York law regulating load limits and a specific provision of the Connecticut law prohibiting a specific kind of non‐semiautomatic weapon as unconstitutionally infringing upon the Second Amendment.

The Fourth Circuit joined this discussion in Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016), where a divided panel applied strict scrutiny in analyzing a challenge to Maryland’s bans on “assault weapons” and large-capacity magazines. This was recently vacated by an en banc panel of the 4th Circuit, which held such devices are outside of Second Amendment protections. Nonetheless, the en banc Fourth Circuit still applied intermediate scrutiny in upholding Maryland’s ban. Until the U.S. Supreme Court chooses to step into the fray (having declined to take up Shew), the analyses of the Second and Fourth Circuits may instruct a more constructive national conversation that will focus on narrowly tailored gun control restrictions that could survive heightened scrutiny, rather than the kinds of blanket bans struck down in Heller and McDonald. And such a conversation is needed. After all, no rationally prudent person can deny the tremendous degree to which technology has transformed firearms into vastly more efficient and easier to use weapons over the past two centuries. However, the factual and legal history of the Second Amendment also prevents those same rationally prudent persons from denying the automatic corollary—namely, that there has always been a fundamental individual right to own and carry firearms, subject to reasonable restrictions.