Does the Second Amendment Refer to States' Rights?

Copyright 1998,1999 Bob Johnson,

Well, No.

It's amazing that some gun control zealots still claim that the Second Amendment was intended to protect a collective right, that is, a right of State governments.  This claim has been so thoroughly disproved that those who still promote it should simply be laughed at.

"The Right of the People"

Unfortunately, there are some who still take them seriously, and it is no laughing matter.  Are we to believe that "the right of the people peaceably to assemble" in the First Amendment refers to individuals; that "the right of the people to be secure ... against unreasonable searches and seizures" in the Fourth Amendment refers to individuals; that "the people" in the Ninth and Tenth Amendments are individuals; but "the right of the people" in the Second Amendment refers to State governments? Ridiculous!

When the U.S. Senate approved the amendment, it voted down a proposal to add the words "for the common defense" [ref. 1].  Clearly, the U.S. Senate didn't intend the Second Amendment to refer to a collective right.  Legal scholars of the early nineteenth century; men who had personally witnessed passage of the Second Amendment, agreed that neither Federal nor State governments could restrict in any way the individual right to carry weapons for self defense [ref 2].

In 1846, the Georgia Supreme Court overturned a state law banning sales of small handguns because it violated the U.S. Constitution [Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]. Why were there no similar rulings from the U.S. Supreme Court? Because there was such unanimous agreement about the meaning of the Second Amendment that Congress never bothered to pass anti-gun legislation.  Almost a century later, when Congress passed the National Firearms Act of 1934 and the Federal Firearms Act of 1938, it still didn't attempt to make any guns illegal because it was agreed that would be unconstitutional.  Instead, Congress created a tax on machine guns and sawed-off shotguns.  That's why the BATF is part of the Department of the Treasury: they are tax collectors, their job is to collect the Federal Excise Taxes on alcohol, tobacco, and firearms.  When they arrest someone for illegal possession of a sawed-off shotgun, for example, they are arresting them for failing to pay the required $200 tax.   Even the U.S. Supreme Court, in 1990 [United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)], pointed out that  "The Second Amendment protects the right of the people to keep and bear Arms ...." when it was explaining what individual rights were mentioned in the Constitution.  Are you going to argue with the Supreme Court?

"A Well Regulated Militia"

Why does the Second Amendment refer to "A well regulated militia..."?  Because "militia" doesn't mean "a group of armed men".  A "militia" is a group of people who can be drafted into public (usually military) service, which basically means "everybody".  That's why, in debates leading to passage of the Second Amendment, you see such terms as "armed militia", "special militia", or "organized militia": they were terms that described particular subsets of the general militia [ref. 3].

The term "well regulated", in the eighteenth century didn't mean "limited by a lot of regulations", which is how it sounds to modern ears.  It meant about what we mean now when we say "well trained", but in a sense that applies to machinery as well as people ("functioning in an orderly manner" is probably a good modern equivalent).  We still use this meaning when we refer, for example, to a "regulated power supply" for our electronic equipment.  To ensure that the militia was "well regulated", the Second Congress passed a law that required almost all male citizens to own a gun and ammunition, and be trained in their use.  That law was still in force in the early part of the twentieth century.

"A Free State"

We also find in the Second Amendment the phrase "the security of a free state".  A "free state" is one in which the citizens are free, not one in which the government is free to do whatever it wants (we call that a "totalitarian state").  But freedom is not only limited by the actions of government; it can also be limited by individuals.  The men who drafted, and enacted, the Second Amendment understood something very fundamental: there is no freedom in a society where citizens must barricade themselves in their homes from fear of criminals.  If you aren't free to come and go when you please, you don't live in a "free state".

Although there is much argument about armed citizens overthrowing a tyrannical government, even Thomas Jefferson pointed out that this was "the last resort".  The day-to-day reason for bearing arms is seen in Jefferson's frequent urging that responsible citizens should carry arms for defense against criminals.  And make no mistake: when honest citizens carry guns, crime rates do go down. In the "wild west", crime and homicide rates were a small fraction of what they are today.  The "shoot out at the OK corral" became famous overnight because of its ferocity: three men killed in a single day!  Jesse James and his men finally met their match in Minnesota when (for the first time in their bank robbing career) local citizens drew their guns and shot back when they robbed the town bank.

Put Them Together...

You don't need to add more conjunctions, and you don't have to call on obscure rules of grammar.  To understand the Second Amendment you just need to understand the individual words and string them together:

"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."

That's it.  It means what it says. It's a short, concise way to say "Because our citizens can't be free if they can't defend themselves from criminals, from foreign terrorists, and perhaps from out-of-control government agents, the right of every individual to own weapons, and to carry them for self defense, shall not be infringed."  If you wish that weren't what it meant, don't lie about what it says.  Be honest and start campaigning for a new amendment.

References not directly linked in the main text:

1.  The Right To Keep And Bear Arms, Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-Seventh Congress; Preface, 4th paragraph after opening quotations.  An ASCII version is also available.

2.  ibid.; 5th Paragraph

3.  A "militia", as explained above, is a group of people who are eligible to be called to military service (or other service).  Since Congress and the President can pass a law in just a few days and make anyone subject to the draft, we are all, for practical purposes, members of the militia.  An "armed militia" is a group of armed people.  A "special militia" is a group trained and organized by the government for military service, not part of the full-time military, but with a special legal status like the modern National Guard.  An "organized militia" is a group of people organized for military service, but not part of the regular military.  It is usually synonymous with "special militia", and is used that way in the current U.S. law defining the militia.  Most press reports using the word "militia" are referring to a "private militia", which is a group of people who have pledged service to an individual's private army.  Since private militias were quite common in the early days of the country, the word "militia" had a connotation that was much more clearly divorced from definitions created by Congress and the courts than it is now.  Since virtually anyone could volunteer to join someone's private army, or to defend the town, everyone was a member of the general militia.  Most states have always regulated or prohibited private militias.  No legal scholar that I know of has ever claimed that the Second Amendment protects a right to organize private armies.  Despite what you sometimes hear from gun control zealots, the NRA has never made that claim, either.

General Acknowledgement:  Those from whom I first learned these concepts deserve credit, but in most cases I don't remember who they are.  Without intending to slight others, I want to thank Clayton E. Cramer, David B. Kopel, and Stephen P. Halbrook, whose writings stand out as pivotal in the development of my personal understanding of the Second Amendment.

Back to Bob's Political Page

Back to Bob's Home Page

Published 4 June 1998.  Minor edits 12 June 1998.  Improved modern equivalent of "well regulated" and added general acknowledgement 23 March 1999.