The Founders' Second Amendment Read online

  To the existing prohibitions on state action in Article I, Section 10, Madison would have added that no state shall “violate” the equal rights of conscience or a free press, or deprive the accused of jury trial.14 To the provisions on the judiciary in Article II, Section 2, would have been added other parts of what became the Fifth and Sixth Amendments, together with the Seventh—in common law suits, “the trial by jury as one of the best securities to the rights of the people, ought to remain inviolate.”15

  Toward the end of the Constitution (in a new Article VII), Madison would have inserted a version of what became the Tenth Amendment, absent recognition of power in “the people”: “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively.”16 A provision on the separation of powers would also have been added there.

  Throughout, Madison utilized consistent word choice: the federal and state governments have “powers,” while only “the people” as individuals have “rights,” albeit the people also have “powers.”17 At no point did Madison suggest that any of the Bill of Rights provisions were intended to protect state powers from federal intrusion, that “the people” really meant the state governments, that a state government had “rights” instead of“powers,” or that the term “infringe” applied to anything other than governmental violation of individual rights.

  In his speech introducing the proposals, Madison acknowledged that a great number of people were dissatisfied with the Constitution and that he and his colleagues should “conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.”18 He noted that “the first of these amendments relates to what may be called a bill of rights.”19 Madison conceptualized the different sources of the rights sought to be guaranteed as follows:

  The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States, as well as the federal constitution, we shall find that although some of them are rather unimportant yet, upon the whole, they will have a salutary tendency....

  In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify those positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring that the legislative, executive, and judicial branches shall be kept separate and distinct....

  But whatever may be the form which the several States have adopted in making declarations in favour of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.20

  According to the above analysis, the press, religion, arms, and similar substantive guarantees are “rights which are retained” and among “the pre-existent rights of nature.” These are the areas in which the Government “ought not to act.” Jury trial and other procedural rights arise from the social compact. They specify that the government must “act only in a particular mode.”

  The Bill of Rights was conceived to deny exercise of power whether by direct infringement or indirectly through exercise of a delegated power. Those federalists who still opposed a bill of rights pointed only to the lack of an explicit power over any of the proposed guarantees. Congressman James Jackson of Georgia argued: “The gentleman endeavours to secure the liberty of the press; pray how is this in danger? There is no power given Congress to regulate this subject as they can commerce, or peace, or war.”21 Madison had already responded to this argument using search and seizure as an example:

  The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for the purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view? If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.22

  In other words, Congress has no delegated power to abridge freedom of the press or to infringe on the right to keep and bear arms. But under the “necessary and proper” clause, it might seek to exercise a delegated power—such as collecting revenue—by issuance of general warrants. What became the Fourth Amendment would guard against such unreasonable search and seizure. Similarly, the exercise of the tax or commerce powers could not violate freedom of the press or the right to have arms.

  Although he followed the recommendations of several state conventions that a declaration of rights be adopted, Madison did not offer extensive amendments concerning the structure of government. One such amendment was conspicuously absent—the proposal by the Virginia, North Carolina, and Harrisburg conventions, “That each state respectively shall have the power to provide for organising, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.”23

  Some die-hard federalists continued to scorn declarations of rights. Representative Fisher Ames of Massachusetts privately quipped:

  Mr. Madison has introduced his long expected amendments.... He has hunted up all the grievances and complaints of newspapers, all the articles of conventions, and the small talk of their debates. It contains a bill of rights, the right of enjoying property, of changing the government at pleasure, freedom of the press, of conscience.... Oh! I had forgot, the right of the people to bear arms.24

  Ames wrote under the above paragraph: “Risum teneatis amici [Could you forbear the laughter of a friend?].” He then continued that the Amendments “may do good towards quieting men who attend to sounds only, and may get the mover some popularity – which he wishes.”

  Ames wrote to another correspondent: “The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people. Freedom of the press, too.”25

  Others were pleased with the proposals for individual rights but were disappointed that structural changes strengthening state powers were not included. Senator William Grayson of Virginia informed Patrick Henry: “Last Monday a string of amendments were presented to the lower House; these altogether respected personal liberty ....”26 Still others agreed that the amendments should focus on individual rights and not alter the Federal-State balance. After reading the amendments that Madison sent him, Joseph Jones wrote to Madison that “they are calculated to secure the personal rights of the people so far as declarations on paper can effect the purpose, leaving unimpaired the great Powers of the government....”27

  Ten days after Madison proposed his amendments to the House, Tench Coxe published “Remarks on the First Part of the Amendments to the Federal Constitution,” under the pen name “A Pennsylvanian,” in the Philadelphia Federal Gazette.28 Probably the most complete exposition of the Bill of Rights to be published during its ratification period, the “Remarks” included the following: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.” In short, the proposal was designed to guarantee the right of the people to have “their private arms” in order to prevent tyranny and to overpower an abu
sive standing army.

  Coxe sent a copy of his article to Madison along with a letter of the same date. “It has appeared to me that a few well tempered observations on these propositions might have a good effect.... It may perhaps be of use in the present turn of the public opinions in New York state that they should be republished there.”29 Madison replied on the 24th, acknowledging “your favour of the 18th instant. The printed remarks inclosed in it are already I find in the Gazettes here [New York].”30 The New York Packet, for one, had reprinted it the day before.31 Madison added that ratification of the amendments “will however be greatly favoured by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.”32

  Coxe’s defense of the amendments was also prominently reprinted on the front page of the special July 4, 1789, issue of the Boston Massachusetts Centinel.33 A search of the literature reveals no writer who disputed Coxe’s analysis that what became the Second Amendment protected the right of the people to keep and bear “their private arms.”

  The significance of Coxe’s interpretation has been challenged on the grounds that it was not published widely enough, that readers were too indifferent to dispute it, that Madison did not specifically approve Coxe’s words, and that Madison’s placement of the arms-bearing and militia clauses were reversed in the Amendment’s final form.34 Yet such skepticism fails to address why Coxe, a prominent federalist in his own right, got it wrong as well as why Madison in his laudatory letter failed to correct Coxe. The essay was published in at least three prominent newspapers and apparently other “Gazettes.” By contrast, no writing from this epoch has been found which states that what became the Second Amendment did not protect a personal right to keep and bear private arms. And readers did indeed respond when they disagreed with Coxe’s analyses, as is illustrated below.

  The long-running dispute was over whether a bill of rights was even necessary to protect fundamental rights. On that issue, Coxe wrote about what became the Ninth Amendment in his “Remarks on the Second Part of the Amendments” in the June 30 issue of the Federal Gazette:

  It has been argued by many against a bill of rights, that the omission of some in making the detail would one day draw into question those that should not be particularised. It is therefore provided, that no inference of that kind shall be made, so as to diminish, much less to alienate an ancient tho’ unnoticed right, nor shall either of the branches of the Federal Government argue from such omission any increase or extension of their powers.35

  “One of the People” replied to Coxe in “On a Bill of Rights,” arguing “the very idea of a bill of rights” to be “a dishonourable one to freemen.” “What should we think of a gentleman, who upon hiring a waiting-man, should say to him ‘my friend, please take notice, before we come together, that I shall always claim the liberty of eating when and what I please, of fishing and hunting upon my own ground, of keeping as many horses and hounds as I can maintain, and of speaking and writing any sentiments upon all subjects.’ ” The government had no power to interfere with individual liberties without a specific delegation, just as “a master reserves to himself... everything else which he has not committed to the care of those servants.”36

  Samuel Nasson, a delegate to the Massachusetts convention who voted against ratification of the Constitution, explained the common understanding of the arms guarantee in letter dated July 9 to Representative George Thatcher, a federalist from that state:

  I find that Amendments are once again on the Carpet.... A Bill of Rights well secured that we the people may know how far we may Proceed in Every Department. Then there will be no Dispute Between the people and rulers in that may be secured the right to keep arms for Common and Extraordinary Occasions such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy. You know to learn the Use of arms is all that can Save us from a foreign foe that may attempt to subdue us, for if we keep up the Use of arms and become well acquainted with them, we Shall always be able to look them in the face that arise up against us.37

  The above is the most extraordinary correspondence from a constituent to a congressman on the meaning of what became the Second Amendment. The right to keep arms exists for “common,” that is, ordinary occasions and for “extraordinary” occasions, such as hunting beasts and fowl (“fowling”) and protection from a common foe. Only a citizenry familiar with the use of arms could prevent the oppression of a standing army, about which Nasson further remarked:

  Only think how fatal they were to the peace of this Country in 1770, what Confusion they Brought on the Fatal 5 of March [the Boston Massacre]. I think the remembrance of that Night is enough to make us Careful how we Introduce them in a free republican Government—I therefore hope they will be Discouraged, for I think the man that Enters as a Soldier in a time of peace only for a living is only a fit tool to enslave his fellows.38

  Not all constituent mail favored a bill of rights. A week before Madison had introduced the amendments, federalist and Congregational pastor Jeremy Belknap wrote to Senator Paine Wingate of New Hampshire that Samuel Adams, on taking office as lieutenant governor, expressed his “devout & fervent wish” that “the people may enjoy well grounded confidence that their personal & domestic rights are secure.” This is the same Language or nearly the same which he used in the Convention when he moved for an addition to the proposed Amendments—by inserting a clause to provide for the Liberty of the press—the right to keep arms—Protection from seizure of person & property & the Rights of Conscience. By which motion he gave an alarm to both sides of the house & had nearly overset the whole business which the Friends of the Constitution had been labouring for several Weeks to obtain. Should a Man tell me that he devoutly wished I might not break into his house & rob his desk—I think I should have a right to suspect that he viewed me in no better light than a Burglar. So if a Man publickly expresses a devout wish that the new Government may not rob him of his personal & domestic rights—I think it not uncharitable to conclude that he has a jealousy of its intentions.39

  Still fuming at Adams’ effort to have the Massachusetts convention in 1788 recommend a bill of rights,40 the pastor clearly did not support the impending federal bill of rights. Yet he correctly characterized bill-of-rights supporters who wished for recognition of the “personal” rights to keep arms, a free press, and against unreasonable searches—they indeed feared the intentions of a government with no restraints.

  Writing to Madison from Paris, Thomas Jefferson offered “a word on the declaration of rights you have been so good as to send me. I like it as far as it goes; but I should have been for going further.” He suggested a stronger version of “the right to speak to write or otherwise to publish any thing but false facts,” and made recommendations concerning the rights of the accused and against standing armies.41 Yet neither here nor in any other writing did Jefferson express any dissatisfaction with the language of what became the Second Amendment. Given his 1776 proposal for Virginia that “no freeman shall ever be debarred the use of arms”42 and his lifelong enthusiasm for firearm ownership, Jefferson must have perceived that these values were expressed in the guarantee that “the right of the people to keep and bear arms, shall not be infringed.”

  ACTION BY THE HOUSE SELECT COMMITTEE

  On July 21, 1789, the House appointed a select committee to consider Madison’s amendments together with those proposed by various states. The committee included John Vining of Delaware as chairman, Madison, Roger Sherman of Connecticut, and a member from each of the other states.43 Sherman formulated his own draft of proposed amendments to the Constitution. Seven of the ten amendments in the Sherman draft declared rights of the people, while three concerned the structure and power of government. Sherman’s rights guarantees were far more limited than those of Madison: The draft included no declaration of the rights of the people to keep and bear arms, against unreasonable search and seizure, to counsel a
nd to due process of law, and no mandate on separation of church and state (hardly a surprise from a Connecticut representative).44

  Among the structural amendments Sherman drafted was a proposal, similar to those of the Virginia, North Carolina, and Harrisburg conventions, that the states retained power over the militia:

  The militia shall be under the government of the laws of the respective states, when not in the actual service of the United States but such rules as may be prescribed by Congress for their uniform organisation and discipline shall be observed in of ficering and training them; but military service shall not be required of persons religiously scrupulous of bearing arms.45

  The last phrase concerning conscientious objectors resembled the last clause in Madison’s proposal guaranteeing the right of the people to keep and bear arms. Its placement in the Sherman draft with a state militia power was perhaps more logical, because it concerned not a “right” to bear arms but an exemption from being “required” to bear arms in military service.

  Although there is no record of the select committee’s proceedings, Sherman’s restrictive notions of freedom raised eyebrows. Senator Richard Henry Lee wrote to Samuel Adams bemoaning the decline of the libertarian values which were universal in 1774, giving as an example:

  You well know our former respected, republican friend, old Mr. R-g-r-Sh-n [Roger Sherman] of Con[necticut] whose person, manners, and every sentiment appeared formerly to be perfectly republican. This very gentleman, our old republican friend opposed a motion for introducing into a bill of rights, an idea that the Military should be subordinate to the Civil power. His reason as stated was “that it would make the people insolent!” This was in a committee of the H. of R. for reporting amendments to the Constitution.46