What does the Second Amendment actually amend?
It is rare that anyone asks the question, “What does the Second Amendment amend?”
This is a military historian’s view of the Second Amendment, which, in a historical context, is a military clause directly linked to national defense and the kind of military force required to meet that end. The Constitution contains clauses granting Congress enumerated powers, which through legislation enable the federal government to operate. Seven of these clauses explicitly govern war, armies, navies and militias.
Early Americans viewed the British standing army composed of regulars (the Redcoats) as an instrument of tyranny, and public sentiment railed against the establishment of an American standing army. Understanding this, the Constitution’s authors authorized Congress to raise and fund an army for a limited period of two years, thereby ensuring the army was not a permanent or standing army.
Instead, for the common defense, Article I, Section 8 granted Congress the authority for “organizing, arming, and disciplining, the Militia.” Other than the appointment of officers by states, the clause did not specify the composition of the militia, i.e. who could join and serve. As written, this absence opened the possibility that Congress could legislate who could and who could not join the militia, and this concerned Alexander Hamilton and James Madison.
The Constitution was signed Sept. 17, 1787, and sent to the states for ratification. The ratification process was bitter and problematic in the extreme. Hamilton, John Jay and Madison wrote and published 85 essays known as the Federalist Papers that explained and argued the pros and cons of the particularly contentious provisions of the Constitution.
The Constitution was ratified June 21, 1788. The first 10 amendments, ratified in 1791, came about as a response to the dangers articulated in the Federalist Papers, which are often used today to help interpret the intentions of the authors of the Constitution.
On Jan. 9, 1788, Alexander Hamilton, writing under the pseudonym Publius, published Federalist Paper No. 29, titled “Concerning the Militia.” Hamilton wrote, “to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power.”
He argued that a large militia restricted to and comprised only of hand-picked men, might itself be as dangerous to liberty as a standing army. Hamilton continued, “Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped.” For Hamilton, the unconditionality of militia membership for “the people at large” held the greatest guarantee that the army would never impose tyranny on the United States. Hamilton’s arguments, in turn, became the basis for the Second Amendment.
Madison produced the first draft of the Second Amendment, which included a religious exemption clause and specified the militia would be “composed of the body of the people.” On Aug. 24, 1789, the House of Representatives sent its version of the amendment to the Senate: “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.”
The Senate considered and debated the text, including an unsuccessful proposal to include the phrase “for the common defense” after the phrase “bear arms.” In the end, the Senate dropped the religious exemption clause and altered the composition clause to drop the phrase “the body of ” as well and the upper case punctuation of the word “People.”
The text of the Second Amendment appears to be clearly stated, “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.” However, by eliminating key phrases and punctuation, the amendment’s wording is easily misunderstood today.
Consequently, arguments abound about the amendment’s meaning. The preamble to the Constitution begins with the phrase “We the People” and continues with the words “ourselves” and “our,” which are the plural form. Five of the 10 amendments contain the phrase “the people” and three others include the words, “person,” “the accused/him,” and “the owner.” Clearly the Constitution’s authors drew a distinction between the rights of the collective whole and the rights of individuals.
Of course, the collective whole in 1789 excluded women, slaves, Native-Americans, the disabled, and Americans under the age of 21. Nevertheless, keep the plural form in mind when reading the Second Amendment.
The final form of the amendment consists of linked phrases separated by commas. The amendment restated the militia’s existence and purpose as an obvious necessity for the security of a free state. The second half of the amendment explicitly prohibited the restriction of the right of the people (plural form) to keep and bear arms. It is obvious from reading Hamilton’s Paper No. 29 and Madison’s draft amendment that concerns existed about the composition of the militia, however, the Senate lost important verbiage clarifying this point.
In 1789, Americans were concerned that the militia would not be tailored through selectively organized recruitment and then used for tyrannical purposes. The draft House amendment clearly addressed the composition of the militia, even granting religious exemptions. Sadly, the ratified amendment addressed the militia’s composition in a confusing and indirect way.
The origin of the Second Amendment was never about individual gun ownership or personal and property protection. It was a response to Hamilton and Madison’s concerns that a specially recruited militia, subservient to arbitrary power, was as much danger to liberty as a standing army. The Second Amendment amended Article I, Section 8, Clause 16 and prohibited Congress from organizing the militia in such a way as to exclude “the People at large” from militia membership.
Edward J. Erickson lives in Macungie and is a retired professor of military history from the Marine Corps University in Quantico, Virginia. He may be reached at ederickson100@gmail.com.