From the Editor: In light of the Orlando Massacre, this article about the second amendment–published in 2012–deserves repeating. We have re-published it in full here.
The Gun Lobby’s interpretation of the Second Amendment is one of the greatest pieces of fraud, I repeat the word fraud, on the American People by special interest groups that I have ever seen in my lifetime. The real purpose of the Second Amendment was to ensure that state armies – the militia – would be maintained for the defense of the state. The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.
-Retired Chief Justice Warren Burger, “The Right to Bear Arms,” Parade Magazine, January 14, 1990.
In 2008, this fraud was furthered by Mr. Scalia, joined by his fellow ideologues Thomas, Alito, Roberts and Kennedy. Yet five zealots in black robes cannot change the historical record. Writing something down on paper or pushing the send button to the internet doesn’t make it so. Scalia and gang, in ganging together to pen District of Columbia v. Heller, cannot change history, anymore than a Truther diary about how the 9-11 hijackers were Republican ideologues giving their lives for Bush and Cheney, makes such idiocy so.
In its 2002 decision Silveira v. Lockyer, the Ninth Circuit Court of Appeals provided a very detailed, extensive, and well researched examination of the historical record surrounding the adoption of the Second Amendment. Although Silveira v. Lockyer was overturned by Messrs. Scalia, Thomas, Roberts, Alito and Kennedy in 2008, the 9th Circuit’s outstanding research surpasses both Scalia’s NRA talking points that passes for a Supreme Court decision, as well as Justice Stevens’ far more persuasive dissent. This diary provides a summary of the Ninth Circuit’s research that led to that court’s conclusion that the Second Amendment was intended to protect the right of the states to form militias, and was not intended to allow anyone and everyone without restriction to buy whatever guns may be on the market. I hope, in a future diary, to analyze Scalia’s Heller opinion and illustrate why Scalia is wrong and a hypocrite to claim that he is governed by original intent.
The Second Amendment states:
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.
What did “militia” mean to the framers? Article 6 of the Articles of Confederation had required that:
every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.
And the original Constitution, written just two years before the enactment of the Second Amendment (the Bill of Rights was passed by Congress in 1789, but not ratified until 1791) also provided for a “militia”:
The Congress shall have the power . . .
To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.
Article I, sec. 8, clauses 15 and 16, and Article II, sec. 2, clause 1. Article 6 of the Articles of Confederation, and these three clauses of the Constitution, refer to state militias. The Constitution provides that the Congress may call the state militias into the service of the United States for the stated reasons, and when called into federal service the President becomes their Commander in Chief. The Constitution also provides for the federal government to organize, arm and discipline the state militias, with the states reserving the right to appoint officers and retaining responsibility for training according to federal standards. As will be seen in a few paragraphs below, it was this 16th clause of Article 1, section 8 that would between 1787 and 1789 create controversy, threaten the Constitution’s ratification, and lead to the adoption of the Second Amendment.
As an aside, and further bolstering the understanding of the time that “militia” meant a well-regulated state army, the first half of the Fifth Amendment, enacted simultaneously with the Second Amendment, provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger . . .
Again, the exemption of militia members called into federal service in time of war or public danger obviously applies to a state militia, a “well regulated” state militia, and not to a mob with guns.
Turning to the latter clause of the Second Amendment, “the right of the people to keep and bear Arms shall not be infringed,” the language enuciates a right “to keep and bear arms,” not to “possess and own arms.” Nineteenth Century state courts construed “bear arms” as having a purely military function. From the Tennessee Supreme Court:
A man in pursuit of deer, elk and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.
Aymette v. State, 21 Tenn. 154 (1840). From the Texas Supreme Court:
The word ‘arms’ in the connection we find it in the Constitution of the United States refers to the arms of a militiaman or soldier, and the word is used in its military sense.
English v. State, 35 Tex. 473 (1872). And from the West Virginia supreme court:
In regard to the kind of arms referred to in the [Second] Amendment, it must be held to refer to the weapons of warfare to be used by the militia.
State v. Workman, 35 W. Va. 367 (1891).
Turning to the historical context of the Second Amendment’s adoption and to the debates preceding its adoption, as SCOTUS observed back in 1939 in United States v. Miller (a unanimous decision authored by the ultra-conservative James Clark McReynolds), when the Second Amendment was adopted:
The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia.
Or, as Alexander Hamilton observed in Federalist Paper no. 29: “Standing armies are dangerous to liberty.” The minutes to the Constitutional Convention reveal that the delegates spent much time discussing the proper balance to be maintained between a national army and the state militias. James Madison told the Convention: “As the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.” The above quoted lines from Articles I and II of the Constitution reflect the compromise the delegates worked out; however, the anti-Federalists who opposed ratification of the Constitution attacked the authority of the Congress to arm the militias. In Federalist Paper 46, Madison countered:
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. 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.
Six of the original 13 states, when ratifying the Constitution, proposed amendments which would become the Bill of Rights. Four of these six ratifying conventions – those of New York, Virginia, Rhode Island and North Carolina – proposed amendments whose language closely mirrored what would become the Second Amendment. But the debates at the ratifying conventions in these four states make it clear that the delegates wanted to guarantee the right of the states to have militias, despite the constitutional empowerment to the Congress to arm the militias.
For example, at the Virginia ratifying convention, George Mason spoke out against Virginia’s ratification of the Constitution without amendment, and Article I section 8 clause 16 was one of the provisions of the Constitution that, to George Mason, mandated the Constitution’s rejection:
The militia may be here destroyed by . . . rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the state governments cannot do it, for Congress has an exclusive right to arm them. . . Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.
But we need not give [the federal government] power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use. . . . I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. I consider and fear the natural propensity of rulers to oppress the people. I wish only to prevent them from doing evil. By these amendments I would give necessary powers, but no unnecessary power. If the clause stands as it is now, it will take from the state legislatures what Divine Providence has given to every individual – the means of self-defense. Unless it be moderated in some degree, it will ruin us.
In contrast to the votes of the ratifying conventions of Virginia, New York, Rhode Island and North Carolina, the delegates at the New Hampshire ratifying convention did vote for an amendment that would have provided a personal right to possess arms:
“Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” While the proposed amendments of Virginia, New York Rhode Island and North Carolina, are very similar to what became the Second Amendment, the New Hampshire proposal is very different in both form and substance. In no other state did a proposal to establish an individual right to possess arms pass, although such proposals were made, and voted down, at the Pennsylvania and Massachusetts ratifying conventions.
The 13 conventions that had ratified the Constitution had proposed countless amendments – Virginia alone had proposed 40, so James Madison was given the task of weeding them out, whittling them down to a mere twelve. These twelve amendments were duly debated in the First Congress – they would become the ten Bill of Rights, with the eleventh proposed amendment not adopted until 1992. The actual amendment that Madison proposed to the First Congress read:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
In regard to the Second Amendment, not a single Congressman or Senator is recorded as saying that it would establish an individual’s right to possess a weapon. While ambassador to Great Britain, John Adams, in 1787, had authored A Defence of the Constitutions of Government of the United States, in which he wrote that a general availability of arms would “demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man – it is a dissolution of government.” In the First Congress, no one contradicted the Vice President’s words. Rather, most of the debate surrounding the Second Amendment centered on Madison’s conscientious objector provision, a provision that makes sense only if it is understood that the amendment guarantees the right of the states to maintain militias and not any individual right to possess firearms. Congressman Eldridge Gerry (later Vice President to President Madison) spoke out against Madison’s conscientious objector language, because he feared that it would result in Congress, and not the state legislatures, defining what a concienscious objector is, and thereby introduce a slippery slope that would ultimately abolish the states’ authority over their own militias. Although both the House and the Senate passed versions of the amendment with the conscientious objector language, this language was stripped out to satisfy the concerns of Gerry and others raising this objection.
In summary, the original intent of the Second Amendment was to protect the right of the states to form and maintain state militias, free of the potential federal incursion created by Article I, section 8, clause 16 of the Constitution. Hopefully, we will one day get an intellectually honest majority on the Supreme Court that will reverse the judicial activism that the five right wing ideologues on SCOTUS forced on the American people in Heller, Citizens United, and the majority’s dangerous restriction on the interstate commerce clause in National Federation of Independent Business et al. v. Sibelius (otherwise known as the “Obamacare” decision).