Info Brief: Second Amendment—Text and History: Founding

Let’s begin—as we always do when interpreting the Constitution—with the Constitution’s text.

Looking at the Second Amendment’s text, it’s worth noting that the Amendment can be separated out into two different clauses:

There’s the first part (which lawyers usually call the “prefatory clause”). This part of the Amendment goes to the Second Amendment’s connection to the Founding generation’s commitment to the citizen-soldier, organized around local militias. This language expresses at least one of the Amendment’s core purposes—preserving “the security of a free State” through a “well regulated Militia,” comprised of members of the local community.

Many Founders feared a national army filled with professional soldiers. They thought that history taught us that these sorts of armies might lead to tyranny. Instead, the Founders thought it better to protect ourselves through local militias formed through groups led by our community’s leaders and formed by members of the local community. The Second Amendment would protect our ability to arm ourselves so that we can carry out our local militia duties without fear of the national government disarming us. So, this language is about federalism—protecting the powers of state (and local) governments and limiting the powers of the national government.

The second part of the Amendment then goes to the substance of the right itself. (Lawyers call it the Amendment’s “operative clause.”) This text expresses a core “right of the people”—the right “to keep and bear Arms.” And at the Founding—like the rest of the Bill of Rights—this text originally protected only against the national government “infring[ing]” that right. (It didn’t apply to state governments.)

This quick review of the Amendment’s text helps us understand one of the arguments at the core of the constitutional debates over the Second Amendment’s meaning:

Does the Second Amendment protect a right to keep and bear arms only when reasonably connected with militia service? If so, this would greatly limit the Amendment’s reach, since we are no longer committed to local militias in the way that the Founding generation envisioned.

Or, does the Second Amendment also protect an individual, freestanding right to keep and bear arms—one not necessarily connected to militia service? On this view, the Amendment’s prefatory clause sets out an important reason for protecting gun rights, but not the only reason. In turn, the Amendment’s second part speaks in broad language about the right to keep and bear arms and protects an individual right separate from whether or not one serves in the local militia.

The Supreme Court addressed this debate in its landmark decision, District of Columbia v. Heller, which we’ll discuss later in the lesson. As we will see, this was the first modern Supreme Court case about the scope of the Second Amendment.

The Founding-era story brings us back to the American Revolution, the Original Constitution, and the Bill of Rights. This story offers us two big lessons. First, many members of the Founding generation were suspicious of standing armies—professional armies, paid by the government and separate from local citizen militias. And second, many members of the Founding generation greatly valued citizen militias—organized by state and local governments, led by local community leaders, and comprised of members of the local community.

The Founding-era story that’s important to the foundation of the Second Amendment begins with the presence of the British army in colonial America. At this time, the British army was seen as an imperial occupying force, especially in Boston where the colonial government was suspended.

For instance, consider the Quartering Acts. Boston had a population of around 15,000-16,000 people, and, by 1775, the British stationed 4,000 soldiers there. For the colonists, the British troops felt like an overwhelming force present everywhere, including (thanks to the Quartering Acts) inside the home. So, this experience colored the meaning of “standing armies” for early Americans.

These events led to a growing and widespread suspicion of standing armies. For instance, the Declaration of Independence charged that King George III had “kept among us, in times of Peace, Standing Armies without the Consent of our legislatures” and had “affected to render the Military independent of and superior to the Civil power.” This concern also went back to the English Bill of Rights, which said that, the “raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.”

The Argument: Professional armies—like the British Army and the Hessians—couldn’t be trusted. European monarchs and despots had standing armies. In America, we needed virtuous citizen-soldiers like the militia. The Founding generation here looked to the example of the Greek city-states and the Roman army during the Republic. On this view, part of the breakdown of the Roman Empire was its reliance on conscripts and hired soldiers over citizen-soldiers, degrading its republican character.

The Founding Vision: The Second Amendment grew out of the popular belief in Founding-era America that standing armies posed a danger to liberty, and that the better way to defend the nation while preserving freedom was the militia, composed of all able-bodied men of fighting age in the community.

At the same time, many also believed that the right to self-defense and to individual arms was a pre-constitutional right that was among the natural rights of all persons. Those thinking of the right to self-defense could point to the English Bill of Rights of 1689 (“subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law”). This understanding of the right was cited by Justice Scalia in the Heller decision.

The core idea is that militia duty is a key part of republican citizenship. Citizens fulfill this duty, and the government steers clear of a standing army.

These early concerns are reflected in the state constitutions in place during the Founding era. Some states specified individual rights to bear arms in their state constitutions, while others did not and only had language about the militia. At the same time, all of the state constitutions during this period mentioned militia duty, opposition to standing armies, and a division of authority between the military and the civilian government—with military power controlled by a non-military/civilian government officials.

What lessons did the Founders draw from history and the American Revolution? They feared a standing army. But they also feared relying on a poorly trained militia to defend the nation.

So, with the new Constitution, the Founding generation looked to give the national government new powers over the military in the interests of national security. The U.S. Constitution itself contained provisions known as the “Militia Clauses” setting out the relationship between Congress, the militia, and the states. (So, these Clauses come before the Bill of Rights—and the Second Amendment.)

Article I, Section 8, gives Congress the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

And here’s a bit more from Article I, Section 8. It gives Congress the power 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.”

And Congress was also given the separate power to “raise and support Armies” (with money for that purpose limited to no more than two years) and to “provide and maintain a Navy.” At the same time, the Original Constitution did not contain an analogue to the state “anti-standing armies” provisions. Federalists like Alexander Hamilton felt that a limitation on Congress’s power to “raise and support armies” would needlessly hamper the ability of the national government to protect the American people.

Key Point: With the new Constitution, the national government was given broad authority to establish a peacetime standing army and to regulate the militia.

At the same time, the Constitution’s massive shift of power from the states to the national government in this context was also a major objection to the new Constitution for the emerging Anti-Federalists.

During the battle over ratification, both key Federalists and key Anti-Federalists battled over the proposed Constitution, standing armies, and the scope of national power. To give a sense of the stakes—and why this debate mattered to the Founding generation—let’s review the key arguments on each side. These arguments would shape the Second Amendment.

First, let’s review some of the Federalist arguments. In The Federalist Papers, both Hamilton and Madison addressed the issue of standing armies and the militia. The central idea behind Alexander Hamilton’s arguments was that the Constitution was necessary for national security reasons and thus standing armies were sometimes needed to secure the liberties of the people. For Hamilton, the American Revolution showed that we shouldn’t rely on state-organized militia for national defense.

At the same time, James Madison tried to chart a middle course between Hamilton and the Anti-Federalists. Madison agreed that standing armies were an essential part of modern states and necessary to security. However, he added that what afforded Americans protection against foreign threats was not only a standing army, but the militia as well. Both were necessary to protect a free republic.

Madison’s Main Point: The Anti-Federalist concerns about a national army overpowering the American people were probably overblown. The American people were almost impossible to subdue. American militias were big, and the American people were armed. Good luck, standing army!

Finally, Anti-Federalist “Brutus” wrote many times about the anti-republican character of standing armies. For Brutus, the power of Congress to raise and support armies at its pleasure in times of peace and war and to control the militia evinced a tendency toward consolidation of government and “destruction of liberty.” Many Anti-Federalists feared the dangers of a standing army under the new Constitution.

With the Second Amendment, the Founders responded to some of the Anti-Federalists’ concerns—advancing a republican conception of gun rights, militia service, and a right to bear arms. The Second Amendment responded to the Anti-Federalist fears that Congress might use its power to “organize, arm, and discipline” the militia as an excuse to disarm the American people. The Second Amendment prevents this.

Key Point: The U.S. Constitution gives the national government broad authority over the army and the militia.

So, the Federalists didn’t make any real concessions to the Anti-Federalists on standing armies and the military powers of the national government. But they did write certain key protections into the Second Amendment.

In the end, the Militia Clauses and the Second Amendment are paradigmatically about promoting public safety and promoting the common good.