Amdt2.2 Historical Background of the Second Amendment

Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Historical surveys of the Second Amendment often trace its roots, at least in part, through the English Bill of Rights of 1689,1 which declared that “subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.” 2 That provision grew out of friction over the English Crown’s efforts to use loyal militias to control and disarm dissidents and enhance the Crown’s standing army, among other things, prior to the Glorious Revolution that supplanted King James II in favor of William and Mary.3

The early American experience with militias and military authority would inform what would become the Second Amendment as well. In Founding-era America, citizen militias drawn from the local community existed to provide for the common defense, and standing armies of professional soldiers were viewed by some with suspicion.4 The Declaration of Independence listed as greivances against King George III that he had “affected to render the Military independent of and superior to the Civil power” and had “kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” 5 Following the Revolutionary War, several states codified constitutional arms-bearing rights in contexts that echoed these concerns—for instance, Article XIII of the Pennsylvania Declaration of Rights of 1776 read:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.6

Similarly, as another example, Massachusetts’s Declaration of Rights from 1780 provided:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.7

Mistrust of standing armies, like the one employed by the English Crown to control the colonies, and anti-Federalist concerns with centralized military power colored the debate surrounding ratification of the federal Constitution and the need for a Bill of Rights.8 Provisions in the Constitution gave Congress power to establish and fund an Army,9 as well as authority to organize, arm, discipline, and call forth the militia in certain circumstances (while reserving to the states authority over appointment of militia officers and training).10 The motivation for these provisions appears to have been “recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense.” 11 However, despite structural limitations such as a two-year limit on Army appropriations and certain militia reservations to the states, fears remained during the ratification debates that these provisions of the Constitution gave too much power to the federal government and were dangerous to liberty.12

In The Federalist, James Madison argued that “the State governments, with the people on their side,” would be more than adequate to counterbalance a federally controlled “regular army,” even one “fully equal to the resources of the country.” 13 In Madison’s view, “the advantage of being armed,” together with “the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” 14 Nevertheless, several states considered or proposed to the First Congress constitutional amendments that would explicitly protect arms-bearing rights, in various formulations.15

Tasked with “digesting the many proposals for amendments made by the various state ratification conventions and stewarding them through the First Federal Congress,” 16 James Madison produced an initial draft of the Second Amendment as follows:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.17

The committee of the House of Representatives that considered Madison’s formulation altered the order of the clauses such that the militia clause now came first, with a new specification of the militia as “composed of the body of the people,” and made several other wording and punctuation changes.18

Debate in the House largely centered on the proposed Amendment’s religious-objector clause, with Elbridge Gerry, for instance, arguing that the clause would give “the people in power” the ability to “declare who are those religiously scrupulous, and prevent them from bearing arms.” 19 Gerry proposed that the provision “be confined to persons belonging to a religious sect scrupulous of bearing arms,” but his proposed addition was not accepted.20 Other proposals not accepted included striking out the entire clause, making it subject to “paying an equivalent,” which Roger Sherman found problematic given religious objectors would be “equally scrupulous of getting substitutes or paying an equivalent,” 21 and adding after “a well regulated militia” the phrase “trained to arms,” which Elbridge Gerry believed would make clear that it was “the duty of the Government” to provide the referenced security of a free State.22

As resolved by the House of Representatives on August 24, 1789, the version of the Second Amendment sent to the Senate remained similar to the version initially drafted by James Madison, with one of the largest changes being the re-ordering of the first two clauses.23 The provision at that time read:

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 one religiously scrupulous of bearing arms, shall be compelled to render military service in person.24

The Amendment would take what would become its final form in the Senate, where the religious-objector clause was finally removed and several other phrases were modified.25 For instance, the phrase referencing the militia as “composed of the body of the People” was struck, and the descriptor of the militia as “the best security of a free State” was modified to “necessary to the security of a free State.” 26 Several other changes were proposed and rejected, including adding limitations on a standing army “in time of peace” and adding next to the words “bear arms” the phrase “for the common defence.” 27 The final language of the Second Amendment was agreed to and transmitted to the states in late September of 1789.28

See William Rawle, A View of the Constitution of the United States of America 126 (1829) ( “In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, ‘suitable to their conditions, and as allowed by law.’” ). back
3 Joseph Story, Commentaries on the Constitution of the United States § 1891 (1833). back
Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 115–16 (1994). back
See The Federalist No. 29 (Alexander Hamilton) (referencing proposition that “standing armies are dangerous to liberty” and militias are “the most natural defense of a free country” ). back
The Declaration of Independence paras. 13–14 (U.S. 1776). back
Pa. Declaration of Rights § XIII (1776), in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 3083 (Francis N. Thorpe ed., 1909). back
Ma. Declaration of Rights § XVII (1780), in 3 id. at 1892. back
See, e.g., 3 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, As Recommended by the General Convention at Philadelphia in 1787, at 401 (Jonathan Elliot ed., 1836) (statement of Gov. Edmund Randolph) ( “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” ). back
U.S. Const. art. II, § 8, cl. 12. back
Id. art. II, § 8, cl. 15–16. back
Perpich v. Dep’t of Def., 496 U.S. 334, 340 (1990). back
See Steven J. Heyman, Natural Rights and the Second Amendment, in The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms 200–01 (Carl T. Bogus ed., 2000) (collecting anti-federalist objections regarding power over militia and “to raise a standing army that could be used to destroy public liberty and erect a military despotism” ). back
The Federalist No. 46 (James Madison). back
Id. back
E.g., Amendments Proposed by the Virginia Convention June 27, 1788, in Creating the Bill of Rights: the Documentary Record from the First Federal Congress 19 (Helen E. Veit et al. eds., 1991) (proposing among other things, “[t]hat the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State[,]” and “[t]hat any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead” ); Amendments Proposed by the New York Convention July 26, 1788, in id. at 22 (proposing similar language but omitting religious-objector provision); Amendments Proposed by the New Hampshire Convention June 21, 1788, in id. at 17 (proposing that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion” ). back
Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America 59 (2006). back
1 Annals of Cong. 451 (1789) (Joseph Gales ed., 1834). back
The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins 264 (Neil H. Cogan ed., 2015) (House Committee of Eleven Report, July 28, 1789) [hereinafter, Complete Bill of Rights]. back
1 Annals of Cong. 778 (1789) (Joseph Gales ed., 1834). back
Id. at 779. back
Id. back
Id. at 780. back
Complete Bill of Rights, supra 18, at 267 (House Resolution, August 24, 1789). back
Complete Bill of Rights, supra 18, at 267 (House Resolution, August 24, 1789). back
Any Senate debate of what would become the Second Amendment does not survive in recorded form. See James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Tex. L. Rev. 1, 36 (1986) ( “The documentary record of debates on the Bill of Rights consists . . . of deliberations in the House of Representatives.” ). back
Complete Bill of Rights, supra 18, at 270. back
Complete Bill of Rights, supra 18, at 268–69. back
Complete Bill of Rights, supra 18, at 274. back