The Founders' Second Amendment
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Next up was the proposal that “The powers not delegated by the constitution, nor prohibited by it to the states, are reserved to the states respectively.” Thomas Tudor Tucker of South Carolina proposed the prefix “all powers being derived from the people,” and alteration of the first clause to refer to “the powers not expressly delegated.” Madison recalled that “expressly” had been defeated in the Virginia convention, and the motion failed.82
Gerry then “proposed to add, after the word ‘states,’ and people thereof.” Daniel Carroll of Maryland, who had served at the Philadelphia convention, opposed the addition because “it tended to create a distinction between the people and their legislatures.” This addition was defeated—for the moment—and then the reservation of powers clause was approved.83
The committee of the whole rose and reported the approved amendments to the House. Representative Frederick A. Muhlenberg of Pennsylvania, the Speaker of the House, wrote to Benjamin Rush, giving him the inside scoop on the above proceedings:
But this Day has at length terminated the Subject of Amendments in the Comittee of the whole House, & tomorrow we shall take up the Report & probably agree to the Amendments proposed, & which are nearly the same as the special Comittee of eleven had reported them. I have no Doubt but there will be two thirds as required by the Constitution in our House, but cannot say what Reception they will meet with in the Senate. Mr. Gerry & Mr. Tucker had each of them a long string of Amendts. which were not comprised in the Report of the special Comittee, & which they stiled Amendments proposed by the several States. There was a curious medley of them, and such as even our Minority in Pennsylvania would rather have pronounced dangerous Alterations than Amendments—these they offered in separate Resolution to the House in Order to get them referred to a Comittee of the whole, but both Attempts failed—the previous question having been ruled against Gerrys Motion, & carried, and Mr. Tuckers was negatived by a very large Majority.84
Wishing for no further amendments, Speaker Muhlenberg—who had been president in Pennsylvania’s ratifying convention in 178785—continued: “I hope it will be satisfactory to our State, and as it takes in the principal Amendments which our Minority had so much at Heart, I hope it may restore Harmony & unanimity amongst our fellow Citizens....”86 Among the amendments that “our Minority” in the Pennsylvania convention had proposed were that “the people have a right to the freedom of speech,... therefore, the freedom of the press shall not be restrained by any law of the United States,” and that “the people have a right to bear arms for the defence of themselves and their own state, or the United States,” and “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....”87
On the 19th, Roger Sherman renewed his motion to add the amendments at the end of the Constitution rather than intersperse them throughout. This time the motion was approved by two-thirds of the House.88 As Madison explained to Alexander White, compromising on this matter of form was necessary to secure the objective of passing the substance of the amendments.89
The House would now consider the amendments, albeit in no particular order. On August 20, it debated the exemption of religiously scrupulous persons from being compelled to bear arms. Thomas Scott of Pennsylvania objected that the exemption would mean that “you can never depend on your militia. This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army.”90
“What justice can there be in compelling them to bear arms, when, if they are honest men they would rather die than use them,” queried Elias Boudinot of New Jersey. “In forming a militia we ought to calculate for an effectual defence, and not compel characters of this description to bear arms.... If we strike out this clause, we shall lead such persons to conclude that we mean to compel them to bear arms.” The proposed amendment was finally accepted after the insertion of the words “in person” at the end of the clause.91 This discussion highlighted the sentiment that not only “bearing,” but also merely “keeping” of arms by the people was considered both a right and a duty to prevent standing armies.
Gerry, on the next day, made a last, unsuccessful attempt to insert “expressly” into the clause reserving to the states the powers not delegated to the United States. But then, surprisingly, Roger Sherman moved to add that those powers “are reserved to the states respectively, or to the people.” And that motion passed without debate.92 This reinforced, as the words dictate, that “the states” and “the people” are indeed distinct. Moreover, the clause referred to “powers” not delegated as being “reserved” to the states or to the people, in contrast with the usage discussed above in which “rights” of the people may not be “infringed.”
While this provision—which became the Tenth Amendment—concerned Federal-State powers, it was a rule of interpretation and did not structurally alter the balance of those powers. Indeed, the House had now passed a declaration of individual rights gleaned from the recommendations of the state conventions, but had all but ignored the structural amendments proposed by those conventions. Thomas Tudor Tucker sought to raise the latter on August 22 by proposing that Congress may not impose direct taxes unless it first seeks to requisition the amounts from the states and such states do not pay their proportions. Tucker noted that “this proposition was referred to the committee, along with many others in the gross; but the committee of eleven declined reporting upon it.“93 Among those “many others” was the proposal that the states may arm and organize the militia should Congress neglect the same.
But the House members were in no mood to add new amendments, and certainly not structural ones. The proposal on direct taxes did not prevail, and no further amendments were considered.94 The final amendment proposals were agreed to and sent to the Senate.
The provisions that survived were the most fundamental and least controversial. Madison wrote to Edmund Randolph on August 21:
For a week past the subject of amendts. has exclusively occupied the H. of Reps. Its progress has been exceedingly wearisome.... It has been absolutely necessary in order to effect any thing, to abbreviate debate, and exclude every proposition of a doubtful & unimportant nature.... Two or three contentious additions would even now frustrate the whole project.95
Those who demanded amendments were essentially happy with the declaration of individual rights but did not get the structural changes they wanted. Patrick Henry “is pleased with some of the proposed amendments; but still asks for the great desideratum, the destruction of direct taxes.”96 Certainly the right to have arms figured into Henry’s dictum: “For Rights, without having power and might is but a shadow.”97 For Richard Henry Lee, the amendments were “short of some essentials, as Election interference & Standing Army & C....”98
Agitation over amendments raged in the newspapers. The guarantee of an armed populace must have alleviated the following concern: “Power should be widely diffused.... The monopoly of power, is the most dangerous of all monopolies.”99 Further, citizens must keep, bear, and exercise in arms to sustain a well regulated militia:
A late writer... on the necessity and importance of maintaining a well regulated militia, makes the following remarks:—A citizen, as a militia man is to perform duties which are different from the usual transactions of civil society.... [W]e consider the extreme importance of every military duty in time of war, and the necessity of acquiring an habitual exercise of them in time of peace....100
Several of the proposed amendments were subjected to criticism. But what became the Second Amendment was apparently not attacked, aside from one editorial that argued the inefficiency of the militia clause, never questioning the arms guarantee. After quoting the House-approved language, the prominent antifederalist “Centinel” opined on September 9 in the Independent Gazetteer:
It is remarkable that this article only makes the observation, “that
a well regulated militia, composed of the body of the people, is the best security of a free state;” it does not ordain, or constitutionally provide for, the establishment of such a one. The absolute command vested by other sections in Congress over the militia, are not in the least abridged by this amendment. The militia may still be subjected to martial law..., may still be marched from state to state and made the unwilling instruments of crushing the last efforts of expiring liberty.101
“Centinel” was, of course, Samuel Bryan, apparent author of the Pennsylvania Dissent of the Minority,102 which demanded recognition of the right to bear arms for defense of self, state, and country, and for hunting. By not objecting to lack of a list of purposes in the proposed arms guarantee, such antifederalists must have assumed that exercise of the right to keep and bear arms would extend to all lawful purposes. Had anyone interpreted “the people” in the guarantee to exclude ordinary citizens and to include only government-chosen militiamen, Bryan would have squawked loudly. By the same token, Samuel Adams and the drafters of the New Hampshire proposal did not object to the lack of an explicit exclusion of criminals from the individual right to keep and bear arms, because this too was understood.
Centinel’s observations indicate the understanding that the Second Amendment’s militia clause merely declared an abstract principle and did not alter the balance of Federal-State powers over the militia set forth in Article I, Section 8, of the Constitution. The clause did not declare, as urged by the Dissent of Minority and the Virginia, North Carolina, and Harrisburg conventions, “That each state respectively shall have the power to provide for organising, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.”103
However, the fact that Bryan and the other antifederalists never attacked the “right to bear arms” clause demonstrates that it recognized a full and complete guarantee of individual rights to have and use private arms. A storm of protest would have ensued had anyone hinted that the right extended only to persons selected by a governmental unit to serve in a militia.
ACTION IN THE SENATE
“The lower house sent up amendments which held out a safeguard to personal liberty in great many instances, but this disgusted the Senate,” Senator William Grayson of Virginia wrote to Patrick Henry after the House transmitted its amendments to the Senate.104 Senator William Maclay of Pennsylvania wrote in his diary on August 25 that the amendments “were treated contemptuously by Z [Ralph Izard of South Carolina], [John] Langdon [of New Hampshire] and Mr. [Robert] Morris [of New York]. Z moved they should be postponed to next Session Langdon seconded & Mr. Morris got up and spoke angrily but not well. They however lost their Motion and Monday was assigned.”105
The twenty-two members of the Senate, which met in secret and did not record debates, began consideration of the amendments on September 2, 1789. In the next two days, it sliced out parts of what became the First Amendment, including the phrase “nor shall the rights of conscience be infringed,” but rejected a motion to delete a version of the First Amendment altogether.106 It then passed a modified amendment protecting speech, press, and petition, and recognized “the right of the people peaceably to assemble and consult for their common good....”107
The Senate next considered a motion to add the following to the House version of what would become the Second Amendment:
That standing armies, in time of peace, being dangerous to liberty, should be avoided, as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to, and governed by, the civil power; that no standing army or regular troops shall be raised in time of peace, without the consent of two-thirds of the members present in both Houses; and that no soldier shall be enlisted for any longer term than the continuance of the war.108
This failed by a vote of 6 to 9. Those favoring the clauses included Virginia senators Richard Henry Lee and William Grayson, and Senators Pierce Butler (South Carolina), James Gunn (Georgia), John Henry (Maryland), and Paine Wingate (New Hampshire). The majority was inclined to add neither declaratory clauses nor structural changes.
The Senate’s dim view of some amendments is reflected in a letter from Theodorick Bland Randolph to St. George Tucker, both antifederalist Virginians and relatives of congressmen. He stated:
The house of Representatives have been for some time past engaged on the subject of amendments to the constitution, though in my opinion they have not made one single material one. The senate are at present engaged on that subject; Mr. Richd. H. Lee told me that he proposed to strike out the standing army in time of peace but could not carry it. He also says that it has been proposed, and warmly favoured that, liberty of Speech and of the press may be stricken out, as they only tend to promote licentiousness.109
The members of the majority who killed the anti-standing-army propositions110 likely eschewed declarations of abstract political principle as well as opposed the requirement that two-thirds of the Congress must authorize a standing army. However, the Senate went on to pass the individual-rights guarantee proposed by the House bur “amended to read as followeth: ‘A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.”’111
In comparing the House draft with this Senate version, the House redundantly mentioned “the people” twice—once in defining “militia” as the “body of the people,” and again as the entity with the right to keep and bear arms. The Senate more succinctly avoided repetition by deleting the well-recognized definition of the militia as “the body of the people.”
It is also plausible to interpret the Senate’s editing as leaving more discretion to Congress to define and compose the militia. If not defined constitutionally as “the body of the people,” the militia could be statutorily defined as something less than that, such as a select militia.112
The Senate also deleted the phrase that “no person religiously scrupulous shall be compelled to bear arms”—perhaps because the basic guarantee of the amendment depicted the keeping and bearing of arms as an individual “right” and not as a duty and also to leave the matter of conscientious objection to the legislature. Deletion of the clause also addressed Congressman Gerry’s argument in the House that it would allow the federal government to “declare who are those religiously scrupulous, and prevent them from bearing arms.”113
On September 7, the Senate rejected the proposal that Congress may not impose direct taxes unless particular states failed to pay amounts requisitioned.114 However, it passed the House version of what became the Tenth Amendment: “The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.“115 Apparently, the House-transmitted version had not included the clause “or to the people,” but the Senate version restored it.116
The next day, September 8, the Senate rejected a string of amendments declaring the natural rights to life, liberty, and property; that “all power” is vested in “the people”; and that “the doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”117 Unlike the declaration of specific rights, such as the press and arms, these were perceived perhaps as useless truisms or platitudes.
A number of structural amendments, clarifying or redefining the powers of the government, were proposed and rejected. A renewed proposal to require two-thirds of both houses of Congress to consent to a standing army, and limits on the terms of enlistment of soldiers, failed.118 The Senate then rejected an explicit reservation of the state power to maintain militias incorporating the language of the Virginia, North Carolina, and Harrisburg conventions:
That each state, respectively, shall have the power to provide for organising, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same; that the militia shall not be sub
ject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.119
The above action highlights the clear distinction between the “right” of “the people” to keep and bear arms, and the “power” of the “state” to organize, arm, and discipline its militia. Besides the linguistic differences, the individual right was considered with other personal liberties, and the state power was considered with other governmental powers. The two were completely separate proposals. The Senate passed the individual right to have arms and rejected the state power to maintain militia. By declaring the right of the people to keep and bear arms, Congress did not actually intend to declare the power of states to maintain militias—the very proposal Congress rejected.
John Randolph commented on the Senate rejection of the militia amendment, apparently from information he received from Senator Richard Henry Lee, as follows: “A majority of the Senate were for not allowing the militia arms & if two thirds had agreed it would have been an amendment to the Constitution. They are afraid that the Citizens will stop their full career to Tyranny & Oppression.”120 Yet as the federalists had argued in the Virginia convention, the militia power was concurrent, and thus states had a residual power to provide for arming the militia such as by requiring citizens to arm themselves. Proponents of this amendment wanted an explicit clarification, but were unsuccessful.
On September 9, the Senate returned to the declaration of rights, passing a form of the First Amendment similar to the final version.121 The Senate then rejected a proposal to add “for the common defence” after “bear arms” in what became the Second Amendment.122 Had it succeeded, recognition of “the right of the people to keep and bear arms for the common defence” would have protected an individual right to keep arms. But what did it mean to “bear arms for the common defence,” and who would decide on exercise of this “right”?