The Second Amendment is not what you have been told.

[Bob in the Land]

This post is about the Second Amendment to the Constitution and whether it was intended to confer a right to own firearms to Americans. The Second Amendment is a rather awkwardly crafted article that has led to much discussion and confusion and therefore has been interpreted in various and often conflicting ways.

I am not a constitutional scholar (or any kind of scholar) nor have I meticulously researched Supreme Court arguments and decisions. I am an engineer who is accustomed to writing specifications that are thorough, clear, and concise. As such, I have found that the syntax of the Second Amendment strange and decided to try to determine precisely what the author(s) intended this amendment to address.

The prime source for understanding the issues that precipitated the Second Amendment are the Federalist Papers written by Alexander Hamilton, John Jay, and James Madison in 1787 and 1788. The Federalist Papers consisted of 85 letters discussing the issues surrounding the drafting of the U.S. Constitution.

The Federalist Papers focused on the issues that were to be addressed in the yet to the composed Constitution such as:
- foreign force and influence;
- dissensions and hostilities between the states;
- the union as safeguard against domestic faction and insurrection;
- the insufficiency of the present confederation;
- taxation;
- the authority of the states;
- structure of the government and its departments;
- the power to regulate the election of members of congress;
- the executive branch;
- the judiciary;
- the common defense (Federalist Papers 24, 25, 26, 27, 28, 29).

The last issue is directly related to the Second Amendment. There was significant discussion after the revolutionary war as to whether the United States should have a federal standing army, or should the states maintain a militia as they have since they were colonies.

None of the Federalist Papers discussed the issue of individual ownership of firearms, their use in personal protection; or the ability of individuals to bear arms. In fact, members of colonial (or state) militias were expected to provide their own personal weapons. Ownership of a weapon wasn’t an issue any more than ownership of a horse, plow, wagon, or any other common implement of the day. It wasn’t necessary to memorialize in the Constitution something as common as these items. In modern terms, an amendment to the constitution should not be needed to discuss the ownership of an automobile, cell phone, lawnmower or any other modern implement.

Given the imminent adoption of the constitution, it seems that the issue of ownership of weapons would have been thoroughly vetted in the Federalist Papers if that was an issue that was desired to be included in a Bill of Rights. Individual weapon ownership is not even mentioned in the Federalist Papers. What was a contentious was how to provide for the common defense; a standing federal army or a well regulated militia.

James Madison drafted the Bill of Rights and borrowed language from the Virginia Declaration of Rights to provide the framework of the Second Amendment. Section 13 of the Virginia Declaration of Rights is as follows:

"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, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

Madison’s draft of the eventual second amendment is presented below (it was the fourth article in the draft Bill of Rights). The draft was edited by the Senate, deleting the underlined words and adding words (in bold).

"A well regulated militia, composed of the body of the People, being the best necessary to the 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."

Section 13 of the Virginia Bill of Rights and the Second Amendment were focused on the issue of the common defense. The word people in both documents refers to the populace as a whole, not individuals. Both documents also refer to the militia as a group of people who needed to be regulated so that they did not become an unruly mob that in itself could threaten the common defense.

I have never seen a discussion about how the Second Amendment could have been composed. The First Amendment is rather straight forward “Congress shall make no law respecting the establishment of religion…” The Second Amendment could have been composed in the same manner (after all it immediately followed the First Amendment) “Congress shall make no law infringing on the right of a person to keep and bear arms.” But is wasn’t composed that way. It instead starts with “A well regulated militia being necessary to the security of a free state...” because the Second Amendment is about the right to maintain a well regulated militia, not about the ownership of weapons by an individuals.

The authors of the Federalist Papers did not think a Bill of Rights was necessary, since they felt Rights were inherent in the proposed Constitution (Federalist Papers No. 84). Many felt that if rights were to be conferred in the Constitution and/or its amendments, then every right would have to be identified and granted.

The right to individual ownership of weapons was not granted in the Second Amendment, nor did it deny the right to own a weapon. Since weapons ownership is not a right, ownership can be regulated through laws passed by Congress and executed by the administration.

I encourage everyone to do their own research as to the intent of those who wrote the Constitution and its Amendments and think about why the Second Amendment is phrased as it is.

[bucolic_frolic]

1. enumerated rights vs. general granting of rights

I doubt there are any answers in the further parsing of Second Amendment intent. That there are mass shootings daily and execution of store patrons and grade school children should jolt the common sense of any thinking mind as to what is practical, moral, and legal.

[Chainfire]

2. I too am among the non-scholar catageory

However, when writing in our language, the first phrase should tell us what the rest of the statement is about.

That is why that I believe that the Supreme Court could turn the gun world upside down by simply ruling on what the poorly phrased amendment really means. There is no need to even discuss a decades long, losing battle to try to amend the Constitution. Maybe the firearm issue alone is a good reason to stack the Court.

Such action would, beyond doubt, lead to bloodshed, but we need to decide, once and for all, if the people with the brains or the people with the guns are going to run the country.

[BusterMove]

3. If people were supposed to supply their own weapons (they were), and their service in

Last edited Thu May 26, 2022, 06:34 PM - Edit history (1)

the militias was mandatory (it was), then how can you say the 2nd didn't secure their individual right to own arms? {no it didn't grant a right - the rights existed already}.

The 1st Militia Acts codified mandatory individual ownership & possesion of arms for militia service...the Houses passed a law with guidelines for "arming" the militias just as they always been - the people themselves would buy and keep their own arms....as had been done in the colonies for decades.

Because if the people relied on the new govt, with their new powers over the militias, to arm them, the govt could easily DISarm them - hence the 2nd.


Did John Adams lose the right to own arms just because he was exempted from militia duty?

[mopinko]

4. it is my understand that the point was that they had had so much trouble

armong the continental army, that they wanted the people to arm themselves.
then it got real popular w slave owners. and that's how we got here.

[former9thward]

5. Since you are an engineer I would think you would have looked up the meaning of words that are used.

"well regulated" for example. The word "regulated" did not exist in 1789 as we now know it. We currently use the word to mean restrictions administered by some governing authority. In 1789 it meant "supplied and trained". Completely different meaning when the words were put in the Bill of Rights.

The entire Bill of Rights was written as a limitation of what the federal government could do. None of the B of Rs gives any rights to anyone. This limitation has been extended to state and local government over the years in various decisions. Rights were assumed but given our experience with Great Britain the proponents of the Bill of Rights felt it necessary to identify the most important.

[pwb]

6. The time it was written was important. The Colonies were at war with Britain and the States militia

played a big role in our cause. Every State has a National Guard with provided weapons when called upon, right now? A single shot muzzle loaded weapon was the high tech then.

Now the industry has people scared with their current high tech weapons. Also Military grade ammunition that tumbles when it hits flesh and tears the body apart I think the public should be denied.

The Amendment needs to be tweaked a bit to fit todays concerns.IMO.

[Igel]

8. Treaty of Paris ended the war with Britain.

1783.

The Constitution was written in 1787.

A number of state constitutions also speak of the right to bear arms for defense of themselves and the state. It's not a question of the other states being restrictive, just their not being explicit. Now, it pays to remember that the Bill of Rights is limiting the central authority, not having the central authority confer rights to its bosses--it's telling the feds that there are rights they cannot freely and easily limit. The feds couldn't limit the right to bear arms because the *states* had militias, and what wasn't authorized for the federal government was reserved to the states.

[uponit7771]

7. K&R, Alito will ignore history in tradition when it comes to the second amendment

[fightforfreedom]

9. Good post.

Bottom line, the second amendment is obsolete.