The reality of the 2A, "well regulated" and the "individual right to bear arms"...
Last edited Sun May 29, 2022, 12:27 AM - Edit history (2)
I see a LOT of confusion on these things.
Scholarship has been focused on them for decades and I thought I'd like to clear up some of the nonsense.
1) What was the 2A and why was it included in the Bill of Rights and Constitution?
So it's 1789. The Constitution has been written and ratified by many States.
It's decided that a Bill of Rights be added that guarantees protections, aka taking power away from the Federal Gov't.
It's important to remember the world in 1789.
The fledgling USA was acutely aware and afraid of the ability for a tyrannical Federal Gov't to terrorize it's people.
The Bill of Rights is full of features to keep the Fed Gov't from doing just that.
The 2A was written. Here's the big line:
"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."
Now what does that mean and what was the context?
The document is obviously unclear so we head on over to Federalist #46 and hear from James Madison.
Madison clearly said (I paraphrase) If the Federal Gov't were to become tyrannical and turn on the American people, it would be the duty and obligation of the State militias to defeat them in combat if needed.
Full text below:
On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.
Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, 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. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
2) So what's a militia?
Think of the militia as our modern State National Guard. In 1789 it wasn't as formal and organized as it is today. The militia was just about every fighting age male, working on a farm or industry.
3) Well regulated?
The phrase had a meaning in 1789. It's used in contemporaneous documents and most certainly means "well trained, equipped and performing at a set standard."
4) Did the Constitution establish the "Individual Right" to keep and bear arms?
It did not. That was not adopted into law until 2008.
Key takeaways.
Note: I hadn't read any of these documents recently so this is just from memory and a t may need to be crossed or an i, dotted.
** The Constitution was written and the country founded with the intent to make the States serve as a check on the Federal Gov't and an adversary if necessary.
** This is ensured by the 2A, a requirement for States to have a well equipped and trained militia to serve in a "Break glass in case of emergency" to indeed battle the Federal Gov't if needed.
** There is no individual right to keep and bear arms in the Constitution? That is simply because the founders couldn't imagine a population without guns as in the 18th Century was a necessary and vital tool in each and every house.
Having said that, there is nothing standing in the way of States an/or the Federal Gov't enacting laws and regulation of guns.
It may take a Constitutional Amendment or a new SCOTUS though...
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