The Founders' Second Amendment

by Stephen P. Halbrook

  The committee did not adopt the amendment, although subordination of the military to the civil power was already implicit in the Constitution. While Sherman’s remark was consistent with his restrictive concept of some rights, it would be a mistake to attribute to him a narrow view of the personal right to have arms. In debates over the militia bill the following year, Sherman “conceived it to be the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack upon his liberty or property, by whomsoever made.”47

  The House select committee disregarded Sherman’s draft of amendments and instead amended Madison’s proposals, reporting them on July 28. Had the House committee intended to confirm a state militia power, Sherman’s proposal or the comparable state proposals would have been appropriate. Instead, the committee reported back a list of individual rights, including the following: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.”48

  The select committee did not change Madison’s words that “the right of the people to keep and bear arms shall not be infringed,” although it moved the philosophical declaration about a well regulated militia to its position before, rather than after, the substantive guarantee. It also inserted, consistent with the phraseology of the Virginia and North Carolina convention demands, the definition of such a militia as “composed of the body of the people.”49

  The committee also changed Madison’s formulation that a well regulated militia is “the best security of a free country” to “the best security of a free state.” Retaining the adjective free differentiated other uses of state throughout the constitutional text to denote the state governments. “A free state” and “a free country” meant, in eighteenth-century usage, a free political society.

  The select committee version used the word infringed in three other places besides the arms guarantee, including two instances in which Madison’s original draft had used the terms “violated” or “inviolate.”50 The equal rights of conscience, and the freedom of speech, press, assembly, and petition could not be “infringed,”51 and no state could “infringe” conscience, speech, press, or jury trial in criminal cases.52 The term “infringe” was invariably tied to a “right” of the “people,” never a state power.

  The reporting of the House committee version was perceived as the triumph of the attempt by Samuel Adams to cause the Massachusetts ratifying convention to demand a declaration of rights, including the right of peaceable citizens to keep their own arms. A writer opined in Boston newspapers:

  It may well be remembered, that the following “amendments” to the new constitution of these United States, were introduced to the convention of this commonwealth by its present Lieutenant-Governour, that venerable patriot SAMUEL ADAMS.... To the honour of this gentleman’s penetration, and of his just way of thinking on this important subject, every one of the intended alterations but one [i.e., proscription of standing armies] have been already reported by the committee of the House of Representatives, and most probably will be adopted by the federal legislature. In justice therefore for that long tried Republican, and his numerous friends, you gentlemen, are requested to republish his intended alterations, in the same paper, that exhibits to the public, the amendments which the committee have adopted, in order that they may be compared together....

  “And that the said constitution be never construed to authorise Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States who are peaceable citizens, from keeping their own arms;... or to prevent the people from petitioning in a peaceable and orderly manner, the federal Legislature, and for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers, or possessions.”53

  Adams had continued actively to promote amendments, but no evidence exists that he read the proposed Bill of Rights in any manner inconsistent with his above proposals. “Should a strong Federalist as some call themselves see what has now dropt from my Pen,” Adams wrote to Richard Henry Lee on August 24, “he would say that I am an Antifed, an Amendment Monger....”54 Adams had written to Lee that spring that governmental powers “ought to be critically defined and well understood” to prevent “Misconstruction of ambiguous Expressions, and by interested Judges too.”55

  The amendments were viewed as protective of individual rights but as not affecting state powers. On August 9, Representative William L. Smith of South Carolina wrote to fellow federalist Edward Rutledge: “The Committee on amendmts. have reported some, which are thought inoffensive to the federalists & may do some good on the other side.... There appears to be a disposition in our house to agree to some, which will more effectually secure private rights, without affecting the structure of the Govt.”56

  DEBATE IN THE HOUSE

  On July 28, Chairman Vining presented the select committee report. The proposed amendments as revised by the select committee were debated in the House committee of the whole from August 13–22. Unfortunately, the recorded debate reflected “the unreliable shorthand reports of one Thomas Lloyd, the incompetent, often inebriated stenographer” assigned to record the proceedings.57

  As had Madison, the select committee recommended that amendments be inserted into the Constitution’s existing text. Roger Sherman immediately objected that “we ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric.” Madison wanted them “interwoven into those parts to which they naturally belong” for ease of understanding.58 Debate on the question consumed the first day. “The amendments reported are a declaration of rights, the people are secure in them whether we declare them or not,” quipped Sherman,59 who did not want to sully the masterpiece with such unimportant details.

  The next day began with the consideration of the amendments from top to bottom. The first proposal was to add to the Constitution’s preamble the affirmation that “Government being intended for the benefit of the people.” Elbridge Gerry moved to amend it to refer to “Government of right,” explaining:

  This holds up an idea that all the Governments of the earth are intended for the benefit of the people:... I do not believe that one out of fifty is intended for any such purpose.... If we contemplate the history of nations, ancient or modern, we shall find they originated either in fraud or force, or both. If this is demonstrable, how can we pretend to say that governments are intended for the benefit of those who are oppressed by them.60

  While his motion failed, this political realism was shared by many. The very purpose of declaring rights was to check oppressive government. In any event, the above amendment to the preamble carried.61 The convention on the same day approved two structural amendments—one fixing a formula for the number of representatives in the House and another prohibiting any law varying the compensation of members until after new elections to the House.62

  Debate over the declaration of rights began on August 15. Just as in the Philadelphia convention of 1787,63 Roger Sherman continued to object to guarantees because Congress had no power to violate rights. He thought the amendment that “no religion shall be established by law” to be “altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the constitution to make religious establishments....”64

  Once again, Madison responded that delegated powers could not be exercised to infringe on rights, but that explicit guarantees would prevent misconstruction:

  Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make such laws of such a nature as might infr
inge the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.65

  Use of the term “national” provoked Elbridge Gerry to regret the misuse of language entailed by the naming of the two major political parties: “those who were called antifederalists at that time [of the state conventions] complained that they had in justice done them by the tide, because they were in favour of a federal government, and the others were in favour of a national one; the federalists were for ratifying the constitution as it stood, and the others not until amendments were made. Their names then ought not to have been distinguished by federalists and antifederalists, but rats and antirats.“66

  Even the “rats” must have chuckled as the House members passed the above provision. Next up was the proposition that free speech and press, and “the right of the people peaceably to assemble” and apply for redress of grievances, “shall not be infringed.” Egbert Benson, a New York federalist, characterized such rights as follows: “The committee who framed this report, proceeded on the principle that these rights belonged to the people; they conceived them to be inherent, and all that they meant to provide against, was their being infringed by the government.”

  Theodore Sedgwick of Massachusetts, who had moved to strike out the reference to assembly—”it is a self-evident unalienable right which the people possess”—thought it unnecessary “to enter these trifles in a declaration of rights, under a government where none of them were intended to be infringed.”67 The year before, in the Massachusetts convention, Sedgwick had discounted any federal oppression—how could a standing army “subdue a nation of freemen, who know how to prize liberty; and who have arms in their hands?”68

  Madison replied that “if we confine ourselves to an enumeration of simple acknowledged principles, the ratification will meet with but little difficulty.” His further comment shed light on the meaning of “infringe”: “the liberty of the press is expressly declared to be beyond the reach of this government.”69 The amendment passed as proposed.70

  The House committee of the whole would consider and approve most of the rest of what became the Bill of Rights on August 17. First up was the following: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” The recorded debates do not include any objection to the self­evident phrase “the right of the people to keep and bear arms,” and the nature of the phrase “shall nor be infringed” was clear enough in this and the previous contexts where those words appeared.

  But the clause providing for an exemption from the militia of conscientious objectors raised a firestorm. Elbridge Gerry clarified that the purpose of the amendment was protection from oppressive government, and thus the government should not be in a position to exclude the people from bearing arms:

  This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

  What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishment of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavoured to counteract them by the organisation of the militia; but they were always defeated by the influence of the crown.71

  Gerry argued that the federal government should have no authority to categorize any individual as unqualified under the amendment to bear arms. “Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provisions on this head.” He therefore moved that the “conscientious objector” clause be limited to actual members of religious sects scrupulous of bearing arms.72 Keeping and bearing arms was a right of “the people,” none of whom should be disarmed under any pretense, such as the government’s arbitrary determination that they are religiously scrupulous.

  In reply, James Jackson of Georgia “did not expect that all the people of the United States would turn Quakers or Moravians; consequently, one part would have to defend the other in case of invasion.” The reference to “all the people” indicated again the centrality of the armed populace for defense. Jackson moved to add to the clause “upon paying an equivalent to be established by law.”73

  Roger Sherman opposed the addition, given that “those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent....” He noted that “the states respectively will have the government of the militia, unless when called into actual service”—an obvious reference to the Constitution’s existing militia provisions in Article I, Section 8, not to the proposed amendment—and that whole sects should not be excluded, in that some Quakers would turn out and defend their country?74 A motion to strike out the entire clause about the religiously scrupulous then failed.75

  Gerry proceeded to object to the wording of the first part of the proposed amendment, the militia clause:

  A well regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one. It ought to read, “a well regulated militia, trained to arms;” in which case it would become the duty of the government to provide this security, and furnish a greater certainty of its being done.76

  Gerry’s words exhibit again the sentiment that security rested on the armed populace as a whole, not on specialized bodies of armed men. But his proposal was not seconded. The keeping and bearing of arms by the citizens at large would promote a sufficiently well regulated militia without an explicit duty of the government to train them to arms.

  Antifederalists held that mere recognition of an individual right to have arms was necessary but not sufficient to promote a well regulated militia and discourage a standing army. Aedanus Burke of South Carolina sought to add to the personal arms guarantee the following structural amendment:

  A standing army of regular troops in time of peace is dangerous to public liberty, and such shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both houses; and in all cases the military shall be subordinate to the civil authority?77

  The motion was defeated,78 reflecting allowance for a limited army approved by a majority of both houses.

  The House went on to approve the proposals against quartering of soldiers in homes; prohibitions on double jeopardy, self-incrimination, cruel and unusual punishment; and guarantees of due process and just compensation. It also confirmed the proposals in favor of “the right of the people” to security from unreasonable search and seizure and that the enumeration of rights did not deny rights “retained by the people.”79 For the time being, all of the above substantive rights were to be inserted in Article I, Section 9, squeezed between other restraints on the power of Congress—the restriction on suspension of the writ of habeas corpus and the prohibitions on bills of attainder and ex post facto laws.

  To be inserted among t
he restrictions on state powers was the proposal that “no state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.” Madison “conceived this to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments....”Samuel Livermore of New Hampshire moved to transpose the sentence to read that the listed rights “shall not be infringed by any state.” The motion carried and the amendment passed.80

  While the above would not survive, it specified “essential rights” that “shall not be infringed.” The linguistic parallel to the Second Amendment is striking, particularly the usage identifying “rights” as things that may not be “infringed.” The term “infringe” just was not used in relation to state powers.

  To be sure, the proposed prohibition on state action did not include subjects such as petition, arms, and search and seizure, and it certainly did not include an establishment clause—some states at that time had established religions. Did this mean that Madison deemed the rights to conscience, press, and jury trial to be more important, that these rights were more threatened by the states, or that this limited list was the most likely to be adopted? Whatever Madison’s thoughts on the subject, the Congress would reject these restrictions on state action.

  The House finished what must have been an incredibly long day by approving amendments to the article on the judiciary providing for certain common­law rules in trials and the right to trial by jury in criminal cases.81

  The following day saw the approval of two more judiciary provisions: indictment by grand jury except in cases, among others, “in the militia when in actual service in time of war, or public danger,” and trial by jury in civil cases. Also approved was the new article declaring that the legislative, executive, and judicial powers would not be intermixed.