When the Constitutional Convention convened in Philadelphia in 1787, its goal was to remedy the defects of the Articles of Confederation. These Articles gave insufficient power to the central government — especially with regard to funding.
Alexander Hamilton, James Madison and John Jay wrote a series of 85 articles under the name Publius encouraging their fellow-citizens to ratify the new Constitution. They recommended against adding a Bill of Rights on the grounds that the Constitution itself provided sufficient protection. The consensus was that the Constitution be ratified first, then be amended by a Bill of Rights.
There were originally 12 amendments, but these were reduced to 10. Among these was the Second Amendment:
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.
But what does it mean? “The people” are not mentioned in the Constitution except in the Preamble. It seems to mean some division below the States. Militia are mentioned several times, principally in Article 1, Section 8, enumerating the powers of Congress:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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;
From the Federal point of view, the purpose of Militias is to execute the Laws of the Union, suppress Insurrections and repel Invasions. Congress is responsible for organizing, arming, and disciplining the Militias, but the States appoint the officers and do the actual training. There is a strong argument that the right to bear arms refers to “a well-regulated militia,” not an individual. The Supreme Court has (recently) disagreed: Individuals have rights — but Congress can regulate them.
The intent seems to have been to allow for the formation of semi-formal military groups to protect “the people” from foreign invasion, from India attacks, and from slave rebellions. The weapon of the day was the “Brown Bess” (Land Pattern Musket 1722-1838). The Brown Bess was caliber 0.69 and weighed about 10 pounds. It had an effective range of about 50 yards and a rate of fire of 1-4 rounds per minute. This is a far cry from an AR-15: caliber 0.223, weighing about 7 pounds. The AR-15 has an effective range of about 600 yards and a rate of fire (auto) of about 750 rounds per minute. As has been all too evident over the past few years, this capability allows for massacres.
Are militias still needed? In the past century, the United States has fielded moderately well-trained troops in a hurry by calling up States’ troops. Since the 1903 Dick Act, these have been designated the National Guard. This arrangement was made more specific by the 1916 National Defense Act. State Militias are now the National Guard. Does this mean all other militias are illegal? Not necessarily. There are two forms of Militia, the organized Militia, now the National Guard, and the unorganized Militia, all other males 17-45 (65 if veteran).
So we — or at least all males 17-45 — are in the Militia. What kinds of Arms can we keep/bear? Where do these Arms reside? In Armories or in homes? Can we “bear” nuclear weapons? Tanks? Heavy machine guns? Must these weapons be registered and accounted for?
It seems fairly clear that the Federal Government is responsible for “organizing, arming, and disciplining” the Militia. Shouldn’t that include registering Arms and ensuring those holding them are responsible citizens? The relatively recent argument that gun ownership is an individual right is not universally accepted. The authority of the Federal Government, the states, and localities to “regulate” gun ownership has been affirmed by many courts. Yet this is still argued constantly.
In classical Greece and Republican Rome, one of the marks of citizenship was the ability to show up fully armed in the town square when the alarm was rung. In degraded form, this point-of-view persisted through the Middle Ages. Today, in Switzerland, most of the male population has a government-provided assault rifle in the home. But the Swiss are notoriously law-abiding; Americans are not. In parts of the U.S., at different times, all males were required to have a weapon nearby.
It would be incredibly ridiculous to say the Second Amendment allows for ownership of nuclear weapons. It is only slightly less ridiculous to argue for planes, tanks, and artillery. What about assault rifles? AR-15s are only useful for mass murder or war.
Perhaps we need legislation, or a constitutional amendment, defining the arms guaranteed by the Second Amendment as single-shot long guns, as the amendment originally referred to. Hand guns would require a background investigation equivalent to that for a top secret clearance — and a demonstrated need.
David J. Whalen holds a PhD in public policy. He teaches at Bakersfield College. The opinions expressed are his own.