In 1791, the Bill of Rights was approved by the majority of states in the young United States. That year, every amendment therein became law. That includes the Second Amendment, which has loosely and strictly been interpreted over the years as a right to keep and bear arms.
For better or worse, the Second Amendment has been part of the American jurisprudence, and firearms part of the American experience. That peculiar building block of our constitutional institution has become part of American culture. Or could it be the other way around? Is politics downstream or upstream of cultural attitudes, then and now? Over two centuries after its passage, the Second Amendment is often characterized as outdated, and the public obsession with firearms is deemed a backward bug of a modern nation-state. But is the Second Amendment truly outdated? To find that out, we have to understand the context and limitations prescribed by the authors. From there, we can determine if the conditions of the signing still apply today.
The Ideological Origins of the 2nd Amendment
"A well regulated militia, being necessary for the security of a free State, the right to keep and bear arms shall not be infringed. "
Both pro and anti-gun advocates point to the Federalist Papers as evidence of the Constitutional Convention’s attitude toward the perceived individual right to own firearms. While the Papers establish the authors and the audience as fearful of standing armies, these sources only provide a generational snapshot of attitudes toward tyranny that go back over a century earlier. The Constitutional Convention chaired in 1787 and the Bill of Rights was ratified in 1791. But the troubled origins of the Second Amendment date back centuries.
For those of a progressive persuasion, the 2nd Amendment is, at best, a product of its time. The Constitutional Convention chaired in the summer of 1787, just four years after the Treaty of Paris ended the Revolutionary War. The prefatory clause, “a well regulated militia,” is used to argue that gun ownership is a collective, rather than an individual right couched in the framers’ fear of standing armies. Pro-gun advocates argue that the militia provides historical context and justification for an individual right. After all, the 3rd Amendment and 4th Amendment are individual rights meant to guard against a standing army. But the Bill of Rights, as a whole, represents a final split from a past that had bisected long before the framers.
Precedence in England
To better understand the thought process behind these Amendments, we need to look at the English common law from which they are derived. England had long affirmed the security of private dwellings since at least the 1381 Forcible Entry Act. This would later become the origin story of the Castle Doctrine and follows a progressive codification of circumstance from civil law into jurisprudence. The right to keep and bear arms in England does not follow such a stable trajectory, thanks to the Protestant Reformation and its aftermath.
When Henry VIII formed the Anglican Church, he instantly had real and imagined enemies in a realm that had been Catholic for centuries. Although he was theoretically bound to the written and unwritten facets of the Magna Carta, Henry immediately set about making those who did not conform to his church into second-class citizens by restricting their education, property rights, and gun ownership.
The Split Reaches the Colonies
The Glorious Revolution brought the Catholic insurgency to an end. The reign of King William marked the start of what was to become the modern constitutional monarchy, but it had implications for the colonies as Anglicanism itself splintered. The Protestant Reformation that erupted in the German States in the 1530s was predicated on an individualist interpretation of scripture, thus an infinitive number of interpretations of the world. This fracture is seen as the Anabaptists, Zwinglists, and Calvinists branched away from orthodox Lutheranism in the Continent.
The Puritans that landed on Plymouth Rock in 1620 were just such a splinter group from England, alienated from the Anglican church and reviled like the Catholics of the age. But distance from England and the realities in the colonies dictated the importance of gun ownership for both sustenance as well as defense. Despite their separatist tendencies with England, Puritans enjoyed an improved relationship with the Crown after the Glorious Revolution. That relationship began to fray as the literate Puritan population began to conflict with themselves and the Crown as the latter sought closer supervision and exploitation over their subjects.
While the decades leading up to the American Revolution are dominated by themes of taxation without representation, that was but one facet of contention. Bernard Bailyn in “The Ideological Origins of the American Revolution” illustrates an eroding of the American faith in English liberty. England had sought to appoint Crown judges in American judicial courts, replacing democratically appointed locals. Conspiracies also abounded that with the Crown would come the Anglican Church and with it societies out to convert the Native nations and turn them against the colonists.
There were double standards and abuses of the rule of law. Customs houses and port cities like Boston and New York teemed with customs officials that raided some enterprises for violations and left better-connected lawbreakers at peace. At times, the Crown simply made others disappear. Jesse Lemisch’s “Jack Tar in the Streets” explored the role of the merchant seaman in the Revolution. Therein, he describes a systemic campaign by the Royal Navy to kidnap thousands of Americans and press them into service, despite that the practice was outlawed.
The Historical Treatment of the Second Amendment
The treatment of the Second Amendment began heatedly, as it was debated between the competing Federalist and Anti-Federalist factions at the Constitutional Convention. This debate was symptomatic of a nation continuing the splinter of competing ideas and scarred from the events of the Revolutionary War and the weaknesses of the Articles of Confederation.
The debate around the Second Amendment inevitably revolved around the state of the militia. England had a tradition of citizen militias and the young United States fought the war, largely with militia, for better and worse. Alexander Hamilton, for his part, liked the militia tradition but thought federal regulation of the militia was necessary so that the patchwork of state and local militias would not fall into decay or disagreement. The Anti-Federalists, led chiefly by James Madison, gained the Second Amendment, justifying it for the purposes of maintaining a militia, while giving the Federalists an out by allowing Congress the enunciated power to organize and arm the militia. This may seem counterintuitive, as it could create a standing army without officially doing so. The Second Amendment thus appears to be a redundancy, yet it was retained.
As central as the militia argument was to have the Second Amendment in the first place, it was sparsely treated in federal court when deciding issues of armed conflict and the militia. Instead, it was up to the states and localities to create their own laws in respect to gun ownership, although most states inevitably adopted some form of the Second Amendment into their own constitutions.
Interestingly, the notorious 1857 Dred Scott case was among the first federal suits to address the context of the Second Amendment, albeit indirectly. The Taney Court ruled that Black Americans were not citizens (and could not sue), but stated differing conditions of citizenship. Citizenship “would give them full liberty of speech in public and in private; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”
On the national level, the Second Amendment would not come under serious scrutiny until Miller v. United States in 1939, where FDR’s Supreme Court held conflicting views: The Second Amendment was tied to militia service, yet the decision also empowered the federal state to regulate firearms ownership to what is in common use. It would not be until District of Columbia v. Heller in 2007, that the Supreme Court made a significant ruling; this time breaking precedent on considering the Second Amendment a collective right, citing a longer precedent of the right that had long been treated as individual.
The Relevance of the Second Amendment in This Century
The Second Amendment is perhaps the most polarizing of all in the Bill of Rights today. To some, it is an archaic loophole that allows terrible acts of violence to be commonplace — to not only happen but to become normalized as firearms and firearms ownership has been normalized over the past two centuries. But to others, it is a necessary precaution to secure liberty from the likes of tyrants.
The cost-benefit analysis of retaining the right to keep and bear arms has consistently come down on the side of liberty. As history has taught us, the Second Amendment was created as a safeguard against real abuses of power, the root causes of which still exist. The Second Amendment and Bill of Rights are as relevant now as ever because the machinations of tyranny have evolved alongside our understanding of ourselves and the laws we abide.
