recently in my political science class, we were instructed to pick a topic covered in our text and write a research paper on it. the 2nd Amendment has always been something of interest to me, as i firmly believe in the Constitutional right to keep and bear arms. following is my research paper on this topic, which i am hoping you find to be enjoyable ;-)
The Second Amendment: Is Bearing Arms a Constitutional Right?
Luke Wagner
POLSC115 On-Line
Prof. Stan Mendenhall
November 27th, 2009
“A well regulated Militia, being necessary to the security of a free State, the right of the people to bear Arms, shall not be infringed.”
- 2nd Amendment, United States of America Constitution
“To disarm the people is the best and most effectual way to enslave them.”
- George Mason
“They that can give up essential Liberty to purchase a little temporary safety, deserve neither Liberty nor safety.”
- Benjamin Franklin
“Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the Right of the People to alter or abolish it.”
- Declaration of Independence
“I ask, sir, what is the militia? It is the whole people, except for a few public officials.”
- George Mason
“…No free man shall be debarred the use of arms within his own land.”
- Thomas Jefferson, Virginia Constitution of 1776
Table of Contents
I. History of the Second Amendment
a. How it came to be
i. The writing of the Constitution, penning and acceptance of the Second Amendment
b. Purpose and intentions of the Founding Fathers
II. Everyone has an Opinion
a. Modern Interpretations
i. Why most are wrong
b. Even Liberals admit they are wrong, sometimes
c. Who is the Amendment intended for?
III. One more Purpose
a. The right of Self-defense
b. Why is this important?
IV. Is Bearing Arms a Constitutional Right?
a. Changing times equals biased tolerance
b. The Government as Master
c. It shall not be infringed upon
d. The next step
The issue of the Second Amendment can be described as a “hot topic”, perhaps now more than ever before. In recent years it has gained attention with other issues like abortion and gay rights, always gaining greater notice during election times. With this issue come opposing viewpoints and thoughts covering extremes on both ends, and others being found more towards the middle of the spectrum. In this short paper it is my desire to explore the ideology and purpose of the Founding Fathers behind the 2nd Amendment, historical and modern interpretations of the Second Amendment and, in the end, come to a final conclusion as to whether the right to own and use a firearm today is truly a constitutional right. But as with all research papers, first a little history must be brought to light.
History of the Second Amendment
When this great country was first being formed, it was under British rule. Comprised of small colonies spread along the east coast facing a mysterious wilderness of sorts to the west, it was vastly different from what we find the United States of America to be today. After the first pilgrims landed in James Town in 1607, the first representative assembly was established (Welch, 22). Over the next several years there were constitutions and assemblies within each colony, but because of British rule the assemblies had to submit to royally appointed governors and troops. It was not until 1774, after years of conflict between self-government by the colonies and the mother British government, that the Continental Congress was established in an attempt to coordinate their actions. Two years later in 1776 Congress adopted the Declaration of Independence. Five years after that, while the Revolutionary War was still taking place, the States ratified the first constitution. This constitution was called the Articles of Confederation, and allowed each state to retain its own “sovereignty”, in essence making each state supreme over the national government.
The Articles of Confederation were short lived though, and in 1787 the Constitutional Convention took place in Philadelphia with fifty-five delegates from the State legislatures being present. It was at this meeting that instead of revising the Articles of Confederation as they had been instructed to do, they created a brand new constitution. After much deliberation, conflict and compromise, on September 17th, 1787 thirty-nine of the original fifty-five delegates signed what we now have and call the Constitution. Soon after the ratification of the Constitution, George Washington became the nations first President in 1788.
It was James Madison who drafted twelve amendments, including the 2nd, which we will be examining here. After being drafted, Congress proposed them, and then the States ratified ten in 1791. For the 2nd Amendment in particular, there were many factors behind the writing of it. As with all the contents of our historical documents, the words and phrases used were carefully selected, often times being debated over for long periods of time. Ideas for the wording and meaning of the 2nd Amendment came from many sources, mainly from similar documents that were earlier drafted for State Bills of Rights, as well as from many suggestions from state conventions. A great example of this is the Virginia Constitution of 1776 in which Thomas Jefferson penned, “…No free man shall be debarred the use of arms within his own land.” With all of the State Constitutions including a section on the bearing of arms though, four beliefs could be found across the board: 1) the right of the individual to possess arms; 2) the fear of a professional army; 3) the reliance on militias controlled by the individual states; and 4) the subordination of the military to civilian control (Court).
On June 22nd, 1788 the 2nd Amendment was penned. The purpose for penning such an Amendment was well grounded in history and experience. Having just ended the Revolutionary War with Britain, there was a very real fear of the creation of a standing army, one which could in time threaten democracy and civil liberties, such as had happened in Rome and Britain (Origin). The purpose is perhaps best described by Professor Joyce Malcom, as she points out two distinct goals of the penning of the 2nd Amendment: 1) it was meant to guarantee the individual’s right to have arms for self-defense and self-preservation, and 2) those privately owned arms were also meant to be used in militia service (LaPierre, 14). The 2nd Amendment that we have in the Bill of Rights today is not, however, the original wording. When it was first penned, the amendment was much lengthier and more explanative, as can be seen in the following:
“That 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 defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”
Here we see the intention of Madison and the other Federalists in penning the 2nd Amendment. That original purpose was clearly “to establish a ‘well-regulated’ democratic army of citizen-soldiers instead of a professional army; not to encourage the anarchic proliferation of weapons in civil society” (Origin). What we read above was eventually whittled down to what we now read in the Bill of Rights:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to bear Arms, shall not be infringed.”
Everyone has an Opinion
Over the years, as with any issue or topic, there have been different interpretations of the 2nd Amendment. As mentioned before, they range from one extreme to the other. Three interpretations are identified in the online article “The Second Amendment”:
1) The civilian militia interpretation, which holds that the Second Amendment is no longer valid, having been intended to protect a militia system that is no longer in place.
2) The individual rights interpretation, which holds that the individual right to bear arms is a basic right on the same order as the right to free speech.
3) The median interpretation, which holds that the Second Amendment does protect an individual right to bear arms but is restricted by the militia language in some way.
Those in favor of gun laws will either align themselves with the first or third interpretation for their defense. But when the Amendment is closely examined within the context it was written, and when the original context of certain words used is taken into consideration, the first and third given interpretations have no grounds to stand. Let’s look at the word militia, the fourth word in the 2nd Amendment. A modern interpretation can be found at Dictionary.com, giving four definitions for the word:
1) A body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
2) A body of citizen soldiers as distinguished from professional soldiers.
3) All able-bodied males considered by law eligible for military service.
4) A body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.
Found at the same site defining the word militia is the following dated 1777: "the whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not." This definition, dated closely to the time of writing of the 2nd Amendment, gives us a clearer understanding of what Madison meant when he used the word militia. Shortly after the penning of the 2nd Amendment, co-author George Mason said to the Virginia Assembly, “I ask, sir, what is the militia? It is the whole people, except for a few public officials.” He also made a clear distinction in his writing entitled Fairfax County Militia Plan between a “standing army” such as a guard unit, and a “militia,” composed of private citizens (LaPierre, 5). It is clear that the Founding Fathers, the authors of our founding documents and the 2nd Amendment, referred to the common people when using the word militia, not an organized military party as many today claim. Akhil Amar, a Yale Law Professor, is quoted speaking on the subject of the definition of the word militia in the 2nd Amendment,
“When the Constitution means ‘states’ it says so… The ultimate right to keep and bear arms belongs to ‘the people,’ not the ‘states.’ …Thus the ‘people’ at the core of the 2nd Amendment are the citizens – the same ‘We the People’ who ‘ordain and establish’ the Constitution and whose rights to assemble…is at the core of the 1st Amendment. …Nowadays, it is quite common to speak loosely of the National Guard as ‘the State militia,’ but when the 2nd Amendment was written…’the militia’ referred to all citizens capable of bearing arms. Thus ‘the militia’ is identical to ‘the people’… (LaPierre, 13).
Further, Professor Malcom points out that the idea or argument that today’s National Guard members are the only persons entitled to own and bear arms has no historical ground. The “militia” referred to in the 2nd Amendment is the people (Guns, 15). Perhaps my favorite quote on interpretation of the 2nd Amendment comes from CNN’s “Crossfire” co-host, liberal Michael Kinsley:
“My New Republic colleague Mickey Kaus says that if liberals interpreted the second amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory” (LaPierre, 12).
One More Purpose
While the purposes of the 2nd Amendment have been outlined previously, there is one that I believe is important to expand upon. Professor Malcom touched on the fact that one of the purposes of the 2nd Amendment is the protection of the right to self-defense. However, today this is a point that is viciously argued against by those desiring gun laws, often saying that self-defense is not grounds for ownership of firearms. Wayne LaPierre, author and chief national spokesman of the National Rifle Association says in his book,
“The Founders’ purpose in guaranteeing the right to keep and bear arms was not merely to overthrow tyrants. They saw the right to arms as crucial to what they believed was a prime natural right – self-defense” (LaPierre, 20).
Even as early as 1765, the right to self-defense was considered an absolute right (LaPierre, 24). Today, the protection of this right is of greater importance then ever before. The point proven by many studies done over the years is that criminals fear armed citizens. Common sense tells a person that an unarmed citizen is more easily made a victim of a crime than one in possession of a firearm. LaPierre draws on a study done in 1993 by Florida State University criminologist Gary Kleck that says, “As many as 2.45 million crimes are thwarted each year in the United States by average citizens using firearms, and in most cases the potential victim never has to fire a shot” (LaPierre, 23). Further pointed out by LePierre is that, “Counterattack – self-defense – has proved to be a more effective deterrent to crime then any of the laws on the books. Criminals don’t fear the law – but they do fear armed citizens” (LaPierre, 26).
Those in favor of gun laws will often times argue that these laws will lower crime rates. Yet, as pointed out, study after study has supported the fact that armed citizens are the best deterrent to crime. I remember learning from a fellow student at a place of secondary education that several of the students had concealed weapons permits and carried handguns with them in class. The fact that I was surrounded by competent and armed individuals made me feel safer than I had ever been before. I knew that, should an individual come through a door with the intentions of harming another, they would be either scared off or stopped in their tracks. It is interesting that other countries like Britain and Australia have seen increases in crime rates since banning firearm ownership by their citizens. George Mason once said, “To disarm the people is the best and most effectual way to enslave them” (LaPierre, 5). Criminals know this and bank their success in completing a crime on it. It would do America good to learn from the mistakes of other countries.
Is Bearing Arms a Constitutional Right?
Times have changed since the founding of this great country and the writing of our founding documents. But changing times does not justify the reinterpretation of a constitutional amendment protecting the right of every law-abiding U.S. citizen. Perhaps LaPierre says it best:
“If ‘changing times’ justifies ignoring or re-interpreting the 2nd Amendment, then ‘changing times’ affect many Constitutional rights, not just the right to arms” (LaPierre, 18).
Changing times is another point raised by those in favor of gun-laws. It is the same as their argument of tolerance with regards to the issue of religion. Those who are Christ following Christians are labeled as intolerant by those who hate Christians. Who is intolerant? Who, with regards to the 2nd Amendment right to bear arms, is contradictory in their thoughts and arguments?
It is very clear that the right to bear arms is a Constitutional right, one that our government has no right to take away. The arguments based on crime, the interpretation of the word “militia”, and changing times do not stand when compared to history. Our Founding Fathers had very clear intentions in writing the 2nd Amendment. It also appears clear that they knew at some point in the future of this great country, that right would be challenged by the government meant to protect it:
“As the Founding Fathers knew well, a government that does not trust its honest, law-abiding, tax paying citizens with the means of self-defense is not itself worthy of trust. Laws disarming honest citizens proclaim that the government is the master, not the servant of the people…” (LaPierre, 21).
Our government has clearly shown just this, a lack of trust in the people it is meant to serve. The government has positioned itself as a master, as one does who owns a slave. It is my belief that to lie down and give into the pressures of the government with regards to the 2nd Amendment is one of the most unpatriotic things an American can do, right along with fighting for laws contradicting the 2nd Amendment.
I often times wonder what our Founding Fathers would think of this country were they to be alive today. My guess would be “ashamed,” not only of the leaders, but of the people as well. Benjamin Franklin once said, “They that can give up essential Liberty to purchase a little temporary safety, deserve neither liberty nor safety” (Guns, 10). The right to bear arms is a Constitutional right, whether it be for self-defense, hunting, or collection. It is a right protected by the Constitution itself, and one that should not be infringed upon by the government. But, things will not change unless the American people wake up and realize this fact. Nothing will change for the good of this country unless the American people recognize their duty as citizens to hold our elected officials accountable to the oaths they have taken to uphold the founding documents of this great country. That, though, is a hard pill to swallow these days, and one that is met with great opposition. This does not however negate the need to stand and fight; for if not, we will soon be like other countries around the globe: unarmed, defenseless and cornered by the government created and meant to serve us, the American people.
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http://www.guncite.com/journals/shalideo.html
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