The Founders' Second Amendment

by Stephen P. Halbrook

  The Virginia Senate voted to take up the proposed amendments in its next session, which was two years later. The delaying tactic failed to create impetus for more expansively worded individual rights or for clarification or alteration of the state-federal balance, such as regarding the state militia power. The final ratification of the Bill of Rights would be forestalled until Virginia’s ratification on December 15, 1791.

  In the interim, the commonplace view continued to prevail that ultimately the armed citizenry would prevent tyranny. Representative Theodorick Bland wrote Patrick Henry on March 19, 1790, that “I have founded my hopes to the single object of securing (in terrorem) the great and essential rights of freemen from the encroachments of Power—so far as to authorise resistance when they should be either openly attacked or insidiously undermined.”21

  Some continued to support structural amendments, such as a requirement that two-thirds of Congress authorize a standing army or declare war.22 But criticism of the Bill of Rights was minimal, and no disapproval existed of the declared right to arms.

  That, indeed, is the significance of Virginia’s debate on the Bill of Rights for purposes of this study. Some of the proposed amendments were subjected to intense criticism based on their alleged ambiguities or insufficient protection for the particular rights guaranteed. But no vagueness lurked in the phrase “the right of the people to keep and bear arms.”

  MASSACHUSETTS FAILS TO RATIFY

  The debate over ratification of the Bill of Rights continued throughout 1790. Writers in the Federal Gazette parroted that no bill of rights was necessary: “A bill of rights for freemen appears to be a contradiction in terms. . . . [I]n a free country, every right of human nature, which are as numerous as sands upon the sea shore, belong to the quiet, peaceable citizen.”23 Another opined: “The absurdity of attempting by a bill of rights to secure to freemen what they never parted with, must be self-evident.”24

  Probably more indifference than the above die-hard sentiment resulted in the failure of Massachusetts to ratify the Bill of Rights. Governor John Hancock, in a speech to the General Court on January 14, 1790, commented on that body’s coming consideration of the proposed amendments, at one point referring to the protections of petit and grand juries in the Fifth and Sixth Amendments. “Some of the others appear to me as very important to that personal security, which is so truly characteristick of a free Government.”25 While he was not more specific, perhaps he had in mind the Second and Fourth Amendments, which promote personal security in different ways. The General Court answered the governor by promising a careful consideration of the amendments, adding that “the whole body of the People should have the fullest confidence, that their rights and liberties are secured to them in the General Government, by the most explicit declarations which have a tendency to give energy to its authority and laws.”26

  The legislative journals reflect that the Senate agreed to all of the Bill of Rights, the House concurred except as to what became the Tenth Amendment, and that the Senate then agreed to the House version but failed to complete action.27

  The Report of the Committee of the General Court on Further Amendments, issued in early 1790, did not criticize any of the Bill of Rights provisions but recommended twelve structural amendments further defining federal-state powers. It proposed “that Congress shall by law provide for calling forth the posse comitatus for executing the laws of the United States.” The posse comitatus consisted of the armed citizens of a community who the sheriff could call out to help keep the peace.28 The committee also urged an amendment that would have recognized a state power to veto congressional action establishing a “system for forming the militia” or making an “establishment of troops in a time of peace, beyond a limited number.”29

  The General Court referred the report to the next session. However, no action was thereafter taken on the Bill of Rights or other amendments.30 Massachusetts, along with Connecticut and Georgia, belatedly ratified the Bill of Rights in 1939.

  RHODE ISLAND ENTERS THE UNION

  For over a year after the first federal Congress met, Rhode Island remained a sovereign state outside the Union. After refusing to call a convention seven times, in January 1790 the Rhode Island legislature finally voted to have a convention to consider ratification of the federal Constitution. Rhode Island would at last ratify the Constitution on May 29, 1790, and the Bill of Rights on June 15, 1790.

  Rhode Island newspapers were more apt to print news of constitutional developments of neighboring states than of the federal government. The Providence Gazette printed nothing on the federal Bill of Rights in the above period but did publish a proposed new bill of rights for Pennsylvania that included the following: “That the right of citizens to bear arms in defense of themselves and the State, and to assemble peaceably together . . . shall not be questioned.”31

  The convention finally met in March 1790 to consider ratification. Federalist leader Henry Marchant moved that the amendments be read.32 A debate ensued on whether, as Madison had originally proposed, states should be “precluded from making any Law respecting Religion or abridging the Rights of Consci[ence].” James Sheldon argued: “If it is right that Congress should not make any Laws respecting it no State ought to have the Right.”33 Marchant thought it was “enough for us to keep it out of the Gen[eral] Gov[ernmen]t.”34

  In the conventions of the other states, the federalists had supported adoption of the Constitution without amendments, but by now their strategy was to support adoption of a bill of rights as an inducement to adoption of the Constitution. A committee of ten was appointed, including delegates opposed to the Constitution.35 The idea was to get the antifederalists to support ratification of the Constitution with a bill of rights they would support.36 The committee reported back, and the minutes reflected with a flourish:

  A Time of Expectation and the House very much crowded—Generals, Colonels, Delegates &c being obliged to Stand. The House now calling—Thus Life Passes and carries along the Tide of Time to land us in Eternity—of what consequence will then be all this Parade?37

  A bill of rights was read, and its arms guarantee was the New York language verbatim.38 This provision followed guarantees against cruel and unusual punishment and unreasonable search and seizure, and in favor of the rights to assembly, petition, speech, and the press.39

  Seeking to stall a vote on the Constitution, antifederalist Job Comstock “moves that before the Bill of (40) Rights be discussed—Moves that the Bill of Rights and Amendment[s] be Referred to the People at large to have the Opinion and Sentim[en]ts thereon. . . .” Marchant countered that “the Bill of Rights being agreed to it appears agreeable to our Minds—that it contains our professed Sentiments and is agreeable to the Constitutions of the United [States].” He moved for a vote on whether the bill of rights would be approved.40

  Comstock argued that “by adopting this Bill some Rights essential may be omitted,” and Elisha Brown moved to refer the issue to the regular town meetings.41 Marchant urged a convention vote because “we may declare that the People have such and such Rights and that when we adopt the Constitu[tion] it may appear that we claim such and such Rights Similar to what was done by New York and may go on to give instances and the Wishes of the People.”42

  The antifederalists then maneuvered an adjournment without voting on the Constitution.43 Town meetings proceeded to discuss the Constitution and proposed Bill of Rights. Meanwhile, the U.S. Congress was threatening to boycott any shipping to or from Rhode Island.44 As reflected in his diary entry for May 18, 1790, Senator William Maday of Pennsylvania observed:

  That the design of this bill evidently, was to impress the People of Rhode Island, with Terror. It was an Application to their fears, hoping to obtain from them, an Adoption of the Constitution, a thing despaired of, from their free Will or their Judgment. That it was meant to be Used the same Way That a Robber does a dagger or a Highwayman a pistol & to obtain the end desired by putting the party in fear.45

&
nbsp; After the town meetings, the delegates reconvened, and the federalists moved to adopt the Constitution with the Bill of Rights already agreed upon. The same committee met and suggested additional amendments.46 On May 29, the convention voted 34 to 32 to ratify the federal Constitution. The Bill of Rights formed the basis for Rhode Island’s ratification, which declared that the following rights “cannot be abridged or violated”:

  That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity,—among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety. . . .47

  It further declared that “all power is naturally vested in, and consequently derived from, the people,” and that “the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.” Following several guarantees, the declaration included the following by now familiar threesome: “That the people have a right peaceably to assemble. . .,”, “That the people have a right to freedom of speech . . .,”, and “That the people have a right to keep and bear arms; that a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state. . . .”48 The last section also declared against standing armies and against the quartering of soldiers in houses.

  A separate body of amendments concerning state powers did not mention the militia.49 However, it declared against federal conscription: “that no person shall be compelled to military duty otherwise than by voluntary enlistment, except in cases of general invasion. . . .”50

  The convention also recommended that the state legislature ratify what became the federal Bill of Rights51 On June 7, 1790, Rhode Island became the ninth state to ratify the Bill of Rights.

  As more states adopted the amendments, the great debate over the rights of man dwindled. But admonitions in support of the militia and against standing armies continued to be expressed. As “A Framer” argued in a plea addressed “To the Yeomanry of Pennsylvania”:

  Under every government the dernier resort of the people, is an appeal to the sword; whether to defend themselves against the open attacks of a foreign enemy, or to check the insidious encroachments of domestic foes. Whenever a people . . . entrust the defence of their country to a regular, standing army, composed of mercenaries, the power of that country will remain under the direction of the most wealthy citizens. . . . [Y]our liberties will be safe as long as you support a well regulated militia.52

  THE PENNSYLVANIA DECLARATION OF RIGHTS AND JUSTICE WILSON’S LECTURES

  At the same time as the federal Bill of Rights was being considered by the states, some of the state constitutions were also being amended. One of the most significant revisions was that of Pennsylvania in 1790, and it was carried out by the guiding hand of James Wilson. A prominent delegate to the Philadelphia convention, which drafted the federal Constitution, and of the Pennsylvania convention, which adopted it, Wilson was appointed by President Washington as Supreme Court Justice in 1789. The following analyzes the concept of the right to keep and bear arms from the perspectives expressed at the 1790 Pennsylvania constitutional convention, which revised that state’s bill of rights, and in more detail by Justice Wilson.

  “The whole of that Bill is a declaration of the rights of the people at large or considered as individuals, meant as a barrier against the encroachments of any of the Legislative, Executive or Judiciary Departments. . . . [I]t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.” Thus wrote Albert Gallatin to Alexander Addison, a candidate for election to the Pennsylvania convention, on October 7, 1789.53

  The Pennsylvania convention met from November 24, 1789, through September 2, 1790. On December 10, 1789, the convention unanimously resolved that the 1776 Declaration of Rights “requires alterations and amendments, in such manner as the rights of the people, reserved and excepted out of the general powers of government, may be more accurately defined and secured.”54

  A committee of nine was elected to draft proposed changes.55 Influential members included James Wilson, who also presided over the convention, and William Findley, who had signed the Dissent of Minority stemming from Pennsylvania’s 1788 ratifying convention.

  The delegates in the Pennsylvania convention were well aware of the progress of the still-pending federal Bill of Rights. As they knew, Madison’s original proposal declared that “the right of the people to keep and bear arms shall not be infringed,” followed by a militia clause and then the words that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”56 As Tench Coxe explained in Philadelphia’s Federal Gazette about that proposal, “the people are confirmed by the next article in their right to keep and bear their private arms.”57

  While the clause for religiously scrupulous persons was deleted in the final version, the delegates in the Pennsylvania convention would consider a similar provision. In its first report, submitted on December 23, 1789, the committee charged with recommending amendments proposed:

  XIX. That the right of the citizens to bear arms in defence of themselves and the state, and to assemble peaceably together, and apply in a decent manner, to those invested with the powers of government, for redress of grievances or other proper purposes, shall not be questioned.

  XX. That those who conscientiously scruple to bear arms shall not be compelled to do so, bur shall pay an equivalent for personal service.58

  The Declaration containing this proposal, which would be published nationally,59 was made at a time when only three states had ratified the federal Bill of Rights. Combined into a single sentence, bearing arms, assembly, and petition were rights of every citizen. The term “bear arms” could have a militia connotation, as the exemption for the conscientiously scrupulous indicated, but its primary meaning was in the context of the “right of the citizens” to carry arms “in defense of themselves and the state.”

  The committee of the whole proceeded to act on each of the draft provisions. On February 4, 1790, the committee voted to separate the right of citizens to assemble and to petition from the arms right, which was combined with the conscientious objector provision. The minutes reflect the following:

  The twentieth section of the said bill of rights being under consideration, it was moved by Mr. Pickering, seconded by Mr. McKean, to amend the same so as to read as follows, viz.

  That the right of the citizens to bear arms in defence of themselves and the state shall not be questioned; but those who conscientiously scruple to bear arms shall not be compellable to do so, but shall pay an equivalent for personal service. Which was carried in the affirmative, and the said section, as amended, adopted.60

  Timothy Pickering and Chief Justice Thomas McKean,61 both of whom had served in Pennsylvania’s federal ratifying convention, followed Madison’s example by combining a “right to bear arms” guarantee with a conscientious objector exception. Consideration of those two clauses in the same sentence did not detract from the fact that the right to bear arms extended to “defence of themselves and the state.”

  The following month, on March 10, 1790, Pennsylvania ratified the federal Bill of Rights. It seems fair to say that the Second Amendment’s right to bear arms was considered just as much an individual right as it was in the Pennsylvania Declaration.

  Meanwhile, months passed as the Pennsylvania convention dealt with other subjects. In a separate article from the Declaration of Rights, the committee of the whole agreed to a provision that “the freemen of this commonwealth shall be armed and disciplined for its defence.”62 The committee rejected a proposal to change “shall” to “may,”63 thereby authorizing compulsory self­arming and militia service.

  Attempts were made unsuccessfully to alter the conscientious objector clause.64 A memorial from Quakers protested that the “article materia
lly affects our religious liberties, which proposes that those who conscientiously scruple to bear arms shall pay an equivalent for personal service; such an equivalent it is well known we cannot, consistent with our principles, voluntarily pay.”65 The convention refused to reconsider.66

  In the final version of the state constitution as adopted on September 2, 1790, the troublesome clause was moved to a more logical place. The declaration of rights provision simply stated: “That the right of the citizens to bear arms in defence of themselves and the state shall not be questioned.”67 The militia clause in the body of the Constitution read: “The freemen of this commonwealth shall be armed and disciplined for its defence: Those who conscientiously scruple to bear arms, shall not be compelled to do so, but shall pay an equivalent for personal service.”68

  As noted, James Wilson played a leading role in drafting the new constitution. He had been an influential delegate to the convention that drafted the federal Constitution and then led the federalists at the Pennsylvania convention that ratified it. In 1789, Wilson was appointed by President George Washington as a justice to the U.S. Supreme Court, and the following year he also became the first law professor at the College of Philadelphia.69 His lectures there significantly addressed the right to have and use arms for self-defense.

  Wilson began with the philosophical premise that protection of life is the first law of nature, and that government may not abrogate that right. He explained:

  The defence of one’s self, justly called the primary law of nature, is not, not can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation—of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked.70