Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Censorship reflects a society's lack of confidence in itself.”     Potter Stewart

November 21, 2007

The Best Explanation of the Second Amendment I Have Ever Heard

by Stephen Littau

“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.”- Amendment II, U.S. Constitution

As Doug reported yesterday, the U.S. Supreme Court is going to take its first case on the Second Amendment in almost 70 years. During this period, legal scholars have debated whether the right to bear arms as described in the Second Amendment refers to an individual right or a collective right. For those of us who are certain that the right to bear arms is an individual right, it seems curious that of the ten amendments in the Bill of Rights that only this amendment was intended to be a collective right and a restriction on the individual’s rights rather than a restriction on the federal government.

Still I have found the construction of the Second Amendment to be problematic. Language evolves over time; this gives opponents of the Constitution an opening to make the words mean what they wish them to mean. What exactly did the framers mean by “militia” ? My understanding has always been that the framers preferred a citizen’s militia (not part of the government) to a permanent standing army as the first line of defense (the government would reinstate the army in times of war). If this was their intent, then it would make sense that the framers would want citizens to be armed to form militias in the event that the country came under attack from foreign threats or be ready in the event that the government became to oppressive.

My other problem with the construction of the Second Amendment is that I find the first part “A well regulated Militia, being necessary to the security of a free State” completely unnecessary. To me “the right of the people to keep and bear Arms, shall not be infringed” is short, sweet, and to the point. Individuals need to have the right to defend themselves, not only from the government but also from other individuals who threaten their lives, liberties, and property. A store owner should have every right to protect his store, his customers, his merchandise and himself from a hoodlum attempting to rob his store. A woman should have every right to carry a handgun to protect herself from the rapist hiding in the shadows. In both of these scenarios, the police (the government) are likely to not be of immediate assistance to these individuals.

Be that as it may, the Second Amendment says what it says and I still believe the authors of the amendment intended the right to bear arms as an individual right. Penn Jillette of Penn & Teller gave the best explanation of the meaning of the Second Amendment I have ever heard in an episode from their 3rd Season of their Showtime show Bullshit!

“A well regulated militia, being necessary to the security of a free state,” sure we need an organized military force to defend your country BUT “the right of the people to keep and bear arms shall not be infringed.”

This is the people in contrast with the militia. It doesn’t say “the right of the militia to keep and bear arms shall not be infringed” it says “the right of the people.”

Now why the word “people” ? Because the people who wrote this just fought a war for two years against a tyrannical state militia. They knew the time might come when they would have to do that again so they made the possession of weapons a right that the militia could never take away.

I have never heard this explanation before but it makes perfect sense. Penn goes on to say that the purpose of the Second Amendment was to make certain that the citizens could violently overthrow the government if the citizens found it necessary. It’s only natural that the government would try to disarm the citizen if it was under constant threat of an armed revolution. Moa, Lenin, and Stalin understood this perfectly well and said much the same thing.

TrackBack URI: http://www.thelibertypapers.org/2007/11/21/the-best-explanation-of-the-second-amendment-i-have-ever-heard/trackback/
Read more posts from
• • •

14 Comments

  1. I suppose this would be a really difficult question for people to answer were it not for the fact that two other amendments written and adopted at the same time contain the phrase “the right of the people to…” are unquestionably construed to confer an individual right. Given that reality, how can the phrase be legitimately construed differently when th same authors and adopters of the bill of rights are responsible for the Second Amendment?

    Comment by Rhymes With Right — November 21, 2007 @ 1:48 pm
  2. The argument has always been two-fold.

    1. The militia clause limits “keep and bear arms” to state and local militias, not individuals.

    2. Free State refers to the sovereignty of the individual states.

    If you check the writings of the day you find out that the Framers believed that the body of citizens constituted the militia, not just the government organized force called the militia. You also find out that the term “free state” meant a nation that was not a despotism and had been used by Madison, Jefferson, etc. for years before the amendment was written.

    Comment by Eric — November 21, 2007 @ 2:13 pm
  3. Is that your argument, Eric? What do you think of Penn’s explaination?

    Comment by Stephen Littau — November 21, 2007 @ 3:45 pm
  4. I have never heard this explanation before but it makes perfect sense. Penn goes on to say that the purpose of the Second Amendment was to make certain that the citizens could violently overthrow the government if the citizens found it necessary.

    Negative. The Second Amendment was written to take the military power of the United States out of the hands of a professional military class and keep it in the hands of ordinary people. This way, standing armies would not be built. The author of much of the Constitution, earlier in his life, wrote:

    “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”

    James Madison, “Political Observations”. Without a standing army, there would be little need for frequent warfare, as well as its attendant curses.

    Of course, like most of the Constitution, the Second Amendment is a miserable failure. The fear of standing armies lasted all the way to 1791, when the Legion of the United States was created. Its purpose was to butcher Indians, which it did rather well. Like most everyone else, war scared Americans until they could swing the big stick.

    Comment by Joshua Holmes — November 21, 2007 @ 4:05 pm
  5. A Different Argument for the Right to Bear Arms…

    Comment by js290 — November 21, 2007 @ 8:34 pm
  6. I’ve never doubted that the Second Amendment meant, clearly that the “people” have a right to bear arms, that is, possess and own them. The wrod “people”, as has been repeatedly brought up is used in several other amendments, and the courts have declared those amendment(s) mean an “individual right”. However, and this is where those who would desire to disarm the private citizen begin to enter into a word game, the lawyers’s trick of parsing the entire statement made by the 2nd. The term, “well regulated” in so far as a militia is concerned is what they, gun grabbers, hang so many of their hats on and suggest this term, “well regulated” somehow suggests a formal, under governmental control militia. To some extent I too have wrestled with that term and what, and/or why the framers used it.

    It has not been until recently in doing more reading and undnerstanding of the useage of the english language, at the time of the drafting of the Constitution, that this term has taken on a more clear, and now completely different meaning as compared to that of those who suggest it means govt. regulated. The term takes on a more clear and understandable meaning when one realizes that “regulated” as used by the framers would have meant “supplied”. If one reads the term, “a well supplied” militia…” one can see that Washington, in calling forth all able bodied men to serve in the militia found himself with many of those men not armed, that is, “supplied” with a rifle, cheif weapon of the day, but not everyone kept a rifle for whatever reason, including, but not limited to the fact that the city dwelling citizens in the colonies were very much under the thumb of an oppressive govt., England, and that govt./power who severely limited English citizens, save but for the elite to own firearms, were not about to look kindly on colonists who owned firearms. The woodsmen, and those who lived on farms had rifles, out of necessity, and didn’t pose as much a threat since they lived so far apart, whereas those who lived in cities were closely congregated, and if armed to well, or heavily posed a serious threat to the King’s goons, the army. Washington’s army, and resources were such that he could not supply the needed weapons. Of those who came forward to serve in the militia the primary owners of firearms were the farmers and such, few of the city folk had them. It is my contention that the framers were saying the “people” who are the militia need to be well regulated, that is, supplied,(armed) and that to be do and be so their right(s) to be armed, all those who felt the need would not, and should not ever be denied the right.

    The gun grabbers will never of course accept this type of argument and interpretation of the term “well regulated’ since it would obviously destroy their argument. But I leave it to the reader to make their own decision on this view of the term “well regulated”.

    Always pay attention and remain free, Richard

    Comment by Richard — November 21, 2007 @ 9:55 pm
  7. You never heard that argument before????

    I have been making that argument to my reps for at least 20 years.

    More to the point, as I have been saying, in 1776 a bunch of dirt poor farmers reached up over the mantle and took down their state of the art assault weapons and defeated the greatest nation on earth and in so doing, created the new greatest nation on earth.

    When understood in that context, the arguments of the gun grabbers fall flat. Pass it on.

    Comment by arthur — November 22, 2007 @ 7:19 am
  8. Stephen, I think that Penn’s argument, the right of revolution, is implicit in the Second Amendment.

    One of the crucial things, which modern constitutional inquiry often ignores, is to understand the Constitution within the framework of its day. And to understand that it was written by Revolutionaries, not by academics.

    Based on their other writings, and deeds as well, the right to revolution was obvious. In 1776 it was unclear if it was obvious, but they declared it anyhow in the Declaration of Independence. It was obvious, in their day, after winning their Revolution, that such a right existed. You have to read the Second Amendment in that light. You have to imagine that you are a Revolutionary that just successfully rebelled against a government you considered tyrannical. Now, what does the Amendment mean?

    Then, you must also consider the usage of the language in that day, by those men. They abhorred standing armies, as Richard points out, and considered the body politic to constitute the Militia. The term “free state” is crucial to the understanding as well. If you read the writings of American and Scottish Enlightenment authors of that time period, a free state is the opposite of a despotism. It had nothing to do with the states composing the USA. They used a different term for that, the term can be found throughout the Constitution: “the several states”.

    The Second Amendment is one of the reasons for the Living Constitution argument by the progressives and pro big government types.

    Comment by Eric — November 22, 2007 @ 8:28 am
  9. The reason for the inclusion of the prefatoy clause “A well regulated Militia, being necessary to the security of a free State” into the 2nd Amendment, in my opinion, was to emphasize the responsibility and necessity of Americans to be ready and willing to defend our system of government and freedoms from enemies. It is a reminder to us of the righteousness our our way of life and what we need to do to protect it.

    Comment by Dbjack46 — November 22, 2007 @ 11:16 am
  10. In 1833, U.S. Supreme Court Justice Joseph Story wrote _Commentaries on the Constitution_. This was only fifty years after the Constitution was created, so Story probably met and spoke with some of the people who were present. This is what Justice Story wrote about the 2nd Amendment:

    “The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

    It is clear then that “militia” refers to a armed general population, rather than a selected group of people chosen and paid for by the government. He makes it clear that this is an individual right, and that protection against power-mad rulers (and their professional men-at-arms) was indeed one of the justifications for it.

    In today’s world, I see it less as a protection from abuse of the army, and more so to prevent the government from using common criminals to oppress us — e.g. by denying us effective police protection while forbidding self-protection unless we agree to higher taxes.

    Comment by fsilber — November 22, 2007 @ 12:20 pm
  11. fsilber, one of the things that keeps a government in check is 150 million firearms in the hands of ordinary citizens, the militia. The government cannot overstep certain bounds or face a general and widespread insurrection. The government knows this, deep in their bones, even if they don’t know it consciously.

    The natural instinct of collectivist government is to disarm the population (see Hitler, Lenin, etc.). The desire to disarm the population is, by and large, a collectivist instinct. And an unnatural one, coming from European political traditions rather than American ones.

    Comment by Eric — November 22, 2007 @ 1:15 pm
  12. It has been said that in calling forth the militia, regular people would come bearing their OWN arms for the purposes of defending the state. In other words, they were predisposed to having arms before the militia was called. The founders considered the militia the first line of defense against invasion and it shows – remember their arguments in the Federalist denouncing standing armies, except as approved by the federal legislature. And even then, the standing army can only be authorized for up to two years, which is why we call the modern defense funding bill the “Defense AUTHORIZATION Bill.” It was expected that a militia of citizens would rapidly form to quell invasions while Congress and the President worked out legislation to raise the Army and Navy. This is what happened in the American Revolution when regular people volunteered to take up arms against Britian as part of their colonial militias.

    At any rate, the “collectivist” argument for the 2nd amendment is not consistent with what the founders said (especially in the Federalist) about the right of the armed citizen or the other nine rights listed in the Bill of Rights that point to other solely individual rights.

    The “collectivist” view is also inconsistent with the text of the amendment itself. Notice the phrase “…the right of the people to keep and bear arms…” This phrase presumes that the people already have the right to bear arms. The amendment does not give the people a right they didn’t already have – it merely recognizes the right, and said the government cannot infringe on the right.

    Comment by Adam — November 22, 2007 @ 7:06 pm
  13. These are all good thoughts.

    If one examines the text of the Second Amendment in isolation, its meaning is up for grabs. If one takes in to consideration the plethora of material on the subject of firearms and the people written by the founders, one would be hard pressed to find an opinion supporting anything but the individual rights view.

    My understanding of what was originally meant by well regulated had to do with readiness, which involved both supplies and training. A well regulated, or well disciplined, militia is one that trains regularly and has all the necessary accoutrements (rifle, powder, shot, food, etc.) at the ready. It means each member of a militia unit knows his job, his responsibilities, whom to contact and how in case of an alarm or emergency.

    It seems that all here, at least so far, agree that the Second Amendment pertains to an individual right. Some here appear to believe that the Second Amendment speaks of a civic obligation to be part of the militia. I would guess this is the with-rights-come-responsibilities approach. It is the approach I take. With that in mind, I’d like to ask: What is holding you back from locating your nearest militia unit and joining up?

    It’s fine to own a gun or three and say, “…from my cold, dead fingers,” but it will be a very different scenario when the storm troopers come and it’s just you and your .22 or your bolt action rifle. It is unrealistic to expect that a group of gun owners who do not know each other and who have never trained together will be able to mount an effective defense against whatever may come.

    If anyone is interested in doing a face-to-face or a 20 questions with a person or people in a militia unit near you, you can click on my name below to go to the primary nation-wide militia discussion forum.

    Peace,
    Flick

    Comment by Flick — November 23, 2007 @ 6:49 am
  14. Regulated basically means standardized. Washington had just fought a war in which most of his men were armed with weapons supplied by themselves, but he was required to keep them supplied with ammunition. The men had brought muskets, rifles and even shotguns of many diferent calibers. It was a logistics nightmare getting the right ammo in the right quantities to the right places when the men of any company could have as many as seven diferent calibers of weapons among them. The men of a WELL REGULATED MILITIA would all have weapons of the same type and caliber.

    Comment by Gary R — November 25, 2007 @ 3:07 am

Comments RSS

Subscribe without commenting

Sorry, the comment form is closed at this time.

Powered by: WordPress • Template by: Eric • Banner #1, #3, #4 by Stephen Macklin • Banner #2 by Mark RaynerXML