The Second Amendment might be the most misunderstood feature of the U.S. Constitution. The assertion that it protects an individual right to the unregulated ownership of firearms is, as the late Chief Justice Warren Burger put it, a “preposterous fraud.” The amendment itself indicates this, as the opening clause begins with the proposition that “A well-regulated militia, being necessary to the security of a free State ...” That well-regulated militia is defined in Article I, Section 8 of the Constitution, which gives the Congress the authority for “organizing, arming, and disciplining the militia.”
This language was rooted in the 18th century American fear of standing professional armies as dangerous to liberty. For evidence of this they looked at the experience of the ancient Roman republic, the civil wars and constitutional struggles of 17th century England, and the examples of 18th century continental absolute monarchies. Many 18th century Americans insisted on the right to be defended by a well-organized militia of citizen-soldiers, not a standing professional military. Militia service was a civic duty for free adult men. Both the Second and Third amendments aimed at avoiding the dangers of a professional army. However, so far as I know, no current self-styled “supporter” of the Second Amendment has called for the abolition of the United States Army.
This 18th century fear of standing armies is illustrated by the 1776 Virginia Declaration of Rights, which stated, “That a well-regulated militia, composed of a body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”
This concept of the “right to bear arms” as a public duty of militia service for the common defense also is reflected in James Madison’s first draft of the Second Amendment: “The right to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
What did it mean to “bear arms”? For most of the 19th century, the “Arkansas doctrine,” which limited the constitutional right to bear arms to the militia, was the standard interpretation and consistent with the debates over the issue in 1787-88. In 1840, the Tennessee Supreme Court upheld a law banning concealed weapons like the Bowie knife or “Arkansas toothpick,” noting the fundamental purpose of the Second Amendment was militia service for the common defense.
The Court argued that, “The object then, for which the right of keeping and bearing arms is secured is the defense of the public. A man in the pursuit of deer, elk and buffaloes might carry his rifle every day for 40 years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”
The key to understanding the Second Amendment is the idea that the United States should rely on citizen-soldiers, not a professional standing army, for the common defense. It is true that the NRA has deployed quotations from various Founding Fathers purporting to show that they would oppose any regulation of the private ownership, purchases, or sale of guns. However, these quotations are often ripped out of context, changing and sometimes completely inverting the original meaning intended.
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For example, supporters of the current NRA view of the Second Amendment often cite Supreme Court Justice Joseph Story, who in his influential 1833 commentary on the U.S. Constitution described the “right to bear arms” as “the palladium of the liberties of a republic.” However, in the same paragraph, Story went on to say, “And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.”
The question of whether the regulation of the private ownership of guns is a good or bad idea should be debated on its own merits, but it is hard for me to see how the Second Amendment can be taken as a ban on any regulation, at least if we are to consider the original purpose of that amendment. In 2008 the U.S. Supreme Court ruled, 5-4, in District of Columbia v. Heller in favor of an individual right to own firearms. I agree with Judge Richard Posner, U.S. Court of Appeals for the 7th Circuit, who argued that with this ruling the court had invented a new right that was not intended by the framers of the Constitution.
• Scott R. Grau of Elkader has a Ph.D. in history and is an adjunct instructor at Kirkwood Community College.