- The 2nd Amendment to the constitution is confusingly written.
- The best support for the right to keep and bear arms is actually from Muslim sources.
The 2nd Amendment to the US Constitution is tremendously contentious in the US. Gun control is also the issue about the US that makes Europeans the angriest of any US issue. Meanwhile, most US gun proponents see the 2nd Amendment as being a cut and dried issue, however, the reasons given for the right to keep and bear arms in the 2nd Amendment, are not the normal ones given by gun rights advocates.
In this article, I will cover the phrasing of the 2nd Amendment, the reason the 2nd Amendment was crafted as it was, and finish with the strongest support for the right to keep and bear arms coming from an unlikely place.
See our references for this article and related articles at this link.
The 2nd Amendment
The 2nd Amendment to the constitution says the following:
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.
The problem with the wording of this amendment is that it makes bearing arms as being dependent upon a militia. However, very few Americans belong to a militia. And this gets into a complicated topic, which is what did the delegates at the Constitutional Convention mean by the use of the term “militia.” It turns out that is a hazy topic. There are two definitions.
- “Lower Case” Militia: This means regimented groups of armed men, armed as members of a military unit.
- “Upper Case” Militia: Everybody
Lower case militias were far more common prior to the establishment of the US than they were as time progressed, and therefore the 2nd Amendment is problematic as things have changed so much in the intervening years. Therefore, the term militia as being necessary to the security of a free state is a bit of a head-scratcher for modern readers of the 2nd Amendment. Something that tends to be left out of modern discussions on the 2nd Amendment is that keeping and bearing arms was considered completely standard in the years before the constitution was ratified.
The following quote presents the case that the 2nd Amendment means the upper case militia.
George Mason also argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein. – Wikipedia
Here Mason is showing the logic that supports the citizens having weapons, and it is not the “common defense.” It is a defense against the government. However, motivation is not anywhere listed in either the 2nd Amendment or the 8 state constitution (I will get to these in a moment) that preceded the 2nd Amendment. That is an extremely unfortunate omission.
There turns out to be a reason why the term militia was used, and why others wanted the term to be narrow and not “everybody,” which is explained in the following quotation.
According to the Dr Carl T. Bogus, Professor of Law, the Second Amendment was written to assure the Southern states that Congress would not undermine the slave system by using its newly acquired constitutional authority over the militia to disarm the state militia and thereby destroy the South’s principal instrument of slave control. In his close analysis of James Madison’s writings, Bogus describes the South’s obsession with militias during the ratification process :
The militia remained the principal means of protecting the social order and preserving white control over an enormous black population. Anything that might weaken this system presented the gravest of threats.
This preoccupation is clearly expressed in 1788 by the slaveholder Patrick Henry :
If the country be invaded, a state may go to war, but cannot suppress insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress … Congress, and Congress only [under this new Constitution], can call forth the militia.
That’s why, in a compromises with the slave states, and to reassure Patrick Henry, George Mason and other slaveholders to be able to keep their slave control militias independent of the federal government, James Madison (also slave owner) changed the word “country” to “state,” and redrafted the Second Amendment into its current form.
And here comes the logic for the use of the term “well regulated militia.”
Another way to maintain slavery is the emphasis on the “well regulated Militia”, introducing the Second Amendment. According to Pennsylvania attorney Anthony Picadio, the Southern slave states would never have ratified the Second Amendment if it had been understood as creating an individual right to own firearms because of their fear of arming free blacks. – Wikipedia
Yes, as the 2nd Amendment had to prevent slaves from being armed because an armed slave is often not a slave for very long.
The quote continues..
Firstly, slave owners dreaded that enslaved blacks might be emancipated through military service. Few years earlier, there had been a precedent when Lord Dunmore offered freedom to slaves who escaped and joined his forces with “Liberty to Slaves” stitched onto their jacket pocket flaps. Freed slaves had also served in General Washington’s army.
Secondly They also greatly feared “a ruinous slave rebellion in which their families would be slaughtered and their property destroyed.” When Virginia ratified the Bill of Rights on Dec. 15, 1791, a successful slave rebellion was roiling Haiti. So the right to bear arms was deliberately tied to membership in a militia by the slaveholder and Amendment’s chief drafter, James Madison, because only whites could join militias in the South.
George Mason appears extremely conflicted. He states that denying arms to citizens allows them to be enslaved, but then he is himself a slave owner and needs to have the 2nd Amendment written in such a way that his slaves and Southern slaves can continue to be deprived of the right to keep and bear arms.
And the following quote explains why a broad “everybody” or “every nonslave” 2nd Amendment could not be written and why it is not entirely accurate to interpret the term militia as the upper case variant.
For the record, Thomas Jefferson had submitted in 1776 a draft constitution for Virginia that said “no freeman shall ever be debarred the use of arms within his own lands or tenements”. Mr. Picadio wrote it was logically rejected because “it would have given to free blacks the constitutional right to have firearms”.
Yes, that would be another big problem. What if armed freed blacks helped free slaves?
The Right to Keep and Bear Arms Is Only for Whites?
I believe almost no one knows that the 2nd Amendment was written in a vague way to keep slaves and freed blacks unarmed. I did not know this before I did the research.
The 1792 Militia Act, passed only 1 year after the 2nd Amendment was ratified, is very clear on this topic of race, however. This tell us what the US really thought “a militia” was, and how it thought that militia should be provisioned.
[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia … [and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”
It should be recognized that this is not just a person who is armed.
According to this act, the US government viewed a member of the militia as a person provisioned like a member of the military. This would be in modern terms a man armed with an AR-15, and several spare magazines. This is particularly interesting, as these are the types of weapons that many people want Americans to have regulated and restricted. And this is not just a lone wolf, but a man that is training as part of a military unit. But getting back to the what is as militia, this states it is every able-bodied white man between 18 and 44 is to be enrolled in a militia. However, this did not happen, although it is clearly what the act called for.
This view of the militia as essential citizens trained as a military unit is supported by the following quotation.
An early use of the phrase “well-regulated militia” may be found in Andrew Fletcher’s 1698 A Discourse of Government with Relation to Militias, as well as the phrase “ordinary and ill-regulated militia”. Fletcher meant “regular” in the sense of regular military, and advocated the universal conscription and regular training of men of fighting age. Jefferson thought well of Fletcher, commenting that “the political principles of that patriot were worthy the purest periods of the British constitution. They are those which were in vigour.” – Wikipedia
But on the question of whether the militia actually was under the control of the state, the following quotation is also informative.
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people”, the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people” – those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”. – Scalia (Wikipedia)
Who Controls the Militias?
The following case which tested the right to assemble a militia shows how contradictory the US has been regarding militias.
In Presser v. Illinois, 116 U.S. 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.
At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right “cannot be claimed as a right independent of law”. This decision upheld the States’ authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes. However the court said: “A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force.” – Wikipedia
How can a militia be critical to the common defense, and the view of a militia member be a person trained and provisioned similarly to soldier with the military arms of the day, and then when the citizens go forward and organize as a militia, the US courts state that the citizens have no right to create their own militias or own weapons for semi-military purposes? The state can regulate the militia? Ok. However in modern times, states don’t create militias, so what is the point? So the citizens have to belong to a state-controlled militia, but then they get to keep and bear arms even if they aren’t part of a militia? What?
The Preexisting State Constitutions Supporting Keeping and Bearing Arms
Prior to 1788 there were eight states that had support for the right to keep and bear arms in their state constitutions. Curiously, all of these arms clauses were in my view not only more clearly in their intent to support the right of the citizens to keep and bear arms, but were better in explaining WHY, the right was granted.
A few that caught my eye as particularly well explained were the following.
That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. – Wikipedia
The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it. – Wikipedia
Notice that the paragraphs are nearly identical.
However, while the conversations around the 2nd Amendment normally is focused on personal defense, that is not the reason given in any of the 8 state constitutions that support bearing arms.
Why Is the Only Logic Presented for Keeping and Bearing Arms is for the Common Defense?
I also have the question as to why the only justification provided is for the common defense. What about the right to personal defense? This was widely accepted in the colonies, yet it is entirely left of any of the federal or state arms clauses. This illustrates the unending self-centeredness of the US governing bodies. The only reason they appear interested in codifying the right to keep and bear arms is so that their citizens can defend the nation. How is that different than simply having the right the join the military? Normally that is not considered right, it is considered an obligation. Is the 2nd Amendment meant to be a right or an obligation? Because the delegates to the Constitutional Convention should probably have been reminded that the Bill of Rights is supposed to be a list of rights, not a listing of obligations. They are supposed to be a list of things that the government cannot do to the citizens.
Now let us consider the time period for a moment. The Bill of Rights was ratified in 1791, so three years after the Constitution was ratified in 1788. In 1791 and the US was mostly a rural country and of course extremely small being made up of the 13 East Coast colonies. It looked nothing like it does today. It was also lightly policed, with few full time and career police officers. There was no 911 at the time. Secondly, hunting would have been extremely common. Why would a person on a farm not also have the right to keep and bear arms for personal defense? How about for hunting purposes? Yet according to the logic presented in the 2nd Amendment, the only reason that farmers had the right to keep and bear arms is for the common defense. That clearly makes no sense, and it was entirely out of line with the common uses of firearms at the time.
This brings up the natural question of why are all of these weapons clauses (the 8 state constitution weapons clauses and the 2nd Amendment) written in such a narrow way that it is only for the protection of the state?
A More Enumerated 2nd Amendment
I would have written the 2nd Amendment differently, something more like this.
The right of the citizens to keep and bear arms shall not be infringed. The reason is for this amendment is for a.) the common defense b.) for defense against enslavement by the US government e.) for personal protection f.) for hunting, and for other reasons not enumerated in this amendment.
This would provide an unequivocal right to keep and bear arms that would be less subject to debate. And it could probably be further improved. Naturally, the reason b.) would have to be wordsmithed as it is probably too direct. But of course, I am trying to write an arm bearing amendment that looks out for the interests of the individual citizens, where this is not the intent of the crafters of the 2nd Amendment.
Naturally, this was easy for me to do. But the 2nd Amendment was not written by one person. It was a committee, and meant a number of compromises, going through many revisions. And as we have seen slavery considerations worked their way into the amendment.
The Most Persuasive Argument for the Right to Keep and Bear Arms
Figuring out the 2nd Amendment is extremely confusing. It requires reading a large number of sources, and those sources often are contradictory. The crafters were self-centered, and had to dance around the issue of slavery. There is a debate as to what even the term “militia” means which does not have a satisfactory resolution. I have no desire to interpret the term in any particular way, and I could debate myself for hours on the topic, just because of the contradictory sources. Something very disappointing is that the crafters of the 2nd Amendment seemed far more interested in allowing the citizens to keep and bear arms for the government’s purposes (to keep slaves in line, to allow the citizens to be called up to defend the country), rather than the right to keep and bear arms for the personal reasons of the citizens. There were very obvious other reasons to have the citizens keep and bear arms, and 2nd Amendment does not address them at all. Furthermore, these other reasons are nowhere in the intermediate versions of the 2nd Amendment that they debated before settling on the current one that was ratified along with the rest of the Bill of Rights. This shows they were nowhere in the minds of the delegates.
However, I came upon something that was immediately persuasive that US citizens should have the right to keep and bear arms. It is simple and unequivocal and is the best evidence I have ever seen. It is the following quote related to what are the rights of non-Muslims to keep and bear arms in Muslim lands.
Non-Muslim Weapon Rights Under Sharia
Under Sharia law, there is an intrinsic freedom to own arms. However, in times of civil strife or internal violence, this right can be temporarily suspended to keep peace and prevent harm, as mentioned by Imam ash-Shatibi in his works on Maqasid ash-Shari’ah (The Intents and Purposes of Shari’ah). Citizens not practicing Islam are prohibited from bearing arms and are required to be protected by the military, the state for which they pay the jizyah. In exchange they do not need to pay the zakat. – Wikipedia
Under Sharia, non-Muslims are treated as a type of second class citizen. Islam proposes the violent subjugation of non-believers that is designed to humiliate non-believers and to promote them to convert to Islam. According to Mohammed non-believers were lower than “dogs and pigs,” and were “the worst of creatures.” So naturally, you would not want such creatures to be armed? You wouldn’t. Secondly, under Sharia, Muslims are allowed to keep and bear arms while non-Muslims are not. What does this tell us about the power dynamic that was set up under Muslim conquered lands between Muslims and non-Muslims?
If Muslims under Sharia prevented non-Muslims from keeping and bearing arms, for Muslim controlled lands, then this should be all the evidence necessary to convince a reasonable person that citizens should have the right to keep and bear arms.