If you haven't read the Introduction, Episode 1 or Episode 2 you should do so before reading below.
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.At the heart of the debate on firearms is the second amendment to the U.S. Constitution. What do we know about these twenty seven words; why were they written?
- The Second Amendment to the U.S. Constitution
The short answer is, there is no specific information that explains the rationale for the amendment.
One popular theory, especially in pro-gun circles, is that the purpose of the second amendment is to arm citizenry to protect them from a tyrannical federal government. There are also many quotes from our founding fathers that directly support this theory. Below is one from none other than hero of the revolution and the first President of these United States, George Washington.
Hold on. It's 118 words long and pure fiction written by some pro-gun person, we shouldn't read it. Let's move on.
Here's a better one anyway from Thomas Jefferson:
The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.While Jefferson is no Hamilton or Adams, he does have a direct style of communication.
Oh, wait. That's fiction too . Again, written by some person who, unsatisfied with the clarity of the amendment itself, decided to help it along. Of course, the Second Amendment Foundation, a gun advocacy group, posits that these may have been written by gun control advocates to poison the well; conspiracies within conspiracies.
In fact, there's no written proof that the the purpose of the second amendment is to protect us from a tyrannical government. Nobody wrote words to that effect.
That's the problem with our Constitution. It's as if is was written in some ancient tongue and needs to be translated and interpreted to be understood. Of course, it was written in the ancient tongue of another time and it does need to be translated and understood. And that's how we've gotten 224 years of lawyers fees.
So what do we know?
First, we know about the historical context. The U.S. Constitution was written to replace the Articles of Confederation. After the Revolutionary War, the country that was deeply in debt  and had a token standing army. The Articles of Confederation gave all the power to the states and the federal government had little authority.
When rebellions over taxes to pay war debts started, as it did in the Shay's Rebellion in western Massachusetts, the state government had to privately fund a militia of three thousand citizens to go put it down. The states were pretty pissed about this and as interstate issues continued to arise it became pretty clear that something needed to be done to replace the Articles. Hence the Constitutional Congress and eventually the U.S. Constitution including the Bill of Rights and it's trusty second amendment.
The Shay's incident illustrated both the handiness of an armed citizenry as well as demonstrated the need for a stronger central government. So maybe the second amendment is both about an armed citizenry for the protection of the central state as well as an armed citizenry for the defense of individual liberty.
Or maybe I'm just guessing.
Which I am.
What else do we know? Let's look at the Federalist Papers.
As you'll recall from sixth grade history these were a series of eighty-five anonymous essays written during the period of the Constitution's ratification to convince citizens that ratification was in their interests.
It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.Apparently, choosing a government by reflection and choice over accident and force is a good idea .
Within the Federalist Papers one finds Article 84 where Alexander Hamilton argues against the need for a Bill of Rights. If only that could have prevailed our dialogue today on the second amendment would be moot.
Relevant to our topic at hand, the Federalist Papers speak of the need for a militia and rights of self defense and speak to the need to defend against usurpation of power both at the state and federal level. Complex stuff with no clear language that says "Everybody gets any kind of gun they want." or "the second amendment is all about protecting us from our government" or even, "the government gets to decide what arms the militias or people are allowed to have".
Case law over time has tried to translate, interpret and clarify what this amendment means. Of course, case law is also of little help because it seems to wax and wane. I won't bore you with the case citations , but suffice to say there has been a long legal history of precedent being set both ways -- both for expanded and restricted gun ownership. Lately the Supreme Court's zig towards expanded interpretation of the Constitution is contrary to almost seventy years of the courts going in the other direction. But that's what makes this so exciting and interesting.
Here's what I've been able to divine with some level of certainty about the second amendment.
- The second amendment is an individual right. We get to keep arms as well as bring them along to our militia drills.
- Laws can be made to restrict that right (e.g. the National Firearms Act at the federal level and myriad state and local laws such as Concealed Carry laws and Assault Weapons Bans) but there are limits that are determined on a case-by-case basis.
- Beyond that not much.
I suppose there's one thing that can be said. Neither side in the gun debate can definitively claim that the second amendment supports one position or the other. If they do, they're being disingenuous.
Read the next post in the series
1 - Dubunked here and here. [Update: That second link no longer works. I wonder why the Second Amendment Foundation took down their bogus quotes section?]
2- The Revolutionary War cost the US $101 million in 1776 currency (around $2.5 billion in today's dollars) and left the United States with $75M in debt.
3 - The Secretary of War tried to scrape together 100 troops to march on Shay's rebels and couldn't get any takers.
4- Of course there were concerns about this new constitution would infringe on rights though as Alexander Hamilton pointed out, the Constitution did not include any surrendering of rights so protections of rights, such as in the Bill of Rights, was unnecessary. But Madison and a bunch of States Rights guys won the day and now we're stuck with all this Constitutional arguing.
5 - Terribly dry stuff also written in that same ancient tongue as the second amendment. Does anyone really read this stuff?
6 - It turns out it was Alexander Hamilton, John Jay and James Madison and not some Roman dude named Publius.
7 - See how I took that paragraph of ancient tongue and simplified it down to a more modern equivalent comprised of 15 words. Maybe we need to rewrite the second amendment in a similar fashion.
8 - We could use a little more reflection and choice in this whole discussion on guns.
9 - United States v Miller, District of Columbia v Heller, etc....
10 - Kind of like Tenkara. But different.
11- Isn't that just a fancy way of saying they're lying? Yes, it is.
12 - See 11