1791: We Did Not See This ComingOctober 10, 2017 · 13 minute read · Comments
The Second Amendment was passed fifteen years after the American Revolution, in 1791, as part of the Bill of Rights. This was just three years after the Constitution was ratified in 1788. The complete Second Amendment of the United States Constitution reads:
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.
James Madison originally proposed the Second Amendment as a way to provide more power to state militias. It begins with the concept that states must have a strong militia to ensure their security: “A well regulated Militia, being necessary to the security of a free State…”. The Second Amendment concludes with the notion that people must have the right to bear arms as an extension of the state militia concept (e.g. “the people” who can be called upon for military service during a time of need).
It was deemed a compromise between Federalists — those who supported the Constitution as it was ratified — and anti-Federalists — those who supported states having more power. Recall that it took twelve years after the American Revolution for the Constitution to be ratified. During this time the states continued to govern themselves without an established, active federal government.
The ratification of the Constitution in 1788 greatly expanded the federal government’s authority, in part by giving Congress the power to raise and support armies. Article 1 Section 8 of the United States Constitution, control of the army and the power to direct the militia of the states was delegated to the federal Congress. The First Congress did not immediately act upon this provision, however, choosing instead to set up the State, War and Treasury departments and the judiciary, among other things.
However on August 7, 1789, President Washington urged congress to establish “some uniform and effective system” for the military “on which the honor, safety and well being of our country so evidently and essentially depend.” It was not until September 29, 1789 (the last day of its first session), that Congress passed a bill empowering the president “to call into service, from time to time, such part of the militia of the states, respectively, as he may judge necessary.”
Before that time the federal government lacked military power. After the American Revolution the Continental Army was disbanded. Believing that “standing armies in time of peace are inconsistent with the principles of republican governments [and] dangerous to the liberties of a free people,” the U.S. legislature disbanded the Continental Army following the Revolutionary War, except for a few dozen troops guarding munitions at West Point, New York, and Fort Pitt, Pennsylvania.
As the federal government ramped up and began operating in 1789 the states felt their power and independence threatened. The states wanted assurances that they could “balance” federal power and they wanted the right to keep their militias. In turn, the federal government was dependent on the state militias for its military power.
The Militia Clauses
After the Constitution was ratified in 1788, and the Bill of Rights was passed in 1791, the first Congress proceeded to spell out it’s control over the state’s militias.
The Militia Clauses in the Constitution gave Congress authority for “organizing, arming, and disciplining” the militia, and “governing such Part of them as may be employed in the Service of the United States”.
The first legislation on the subject was the Militia Act of 1792 which provided, in part:
That each 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, … every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock.
It is clear both from the language in the Second Amendment as well as the political climate at the time that the Second Amendment was a balance of power issue between the states and the federal government. It had little or nothing to do with an individual citizen’s rights. However, citizens were not only encouraged to bear arms - it was legally mandated, but only in the context of being enrolled in the militia.
Interpretations of the Second Amendment
There are two interpretations of the Second Amendment. One view interprets the amendment to mean it provides for “collective rights”, while the opposing view is that it provides “individual rights”.
The collective rights view of the amendment is that it gives each state the right to maintain and train formal militia units that can provide protection against an oppressive federal government. They argue the “well regulated militia” clause clearly means the right to bear arms should only be given to these organized groups. They believe this allows for only those in the official militia to carry guns legally, and say the federal government cannot abolish state militias.
Those with the individual rights viewpoint believe the amendment gives every citizen the right to own guns, free of federal regulations, to protect themselves in the face of danger. The individualists believe the amendment’s militia clause was never meant to restrict each citizen’s rights to bear arms.
The Supreme Court’s View
Scholars highlight the prefatory language “a well regulated Militia” to argue the intention of the Second Amendment was only to restrict Congress from legislating away a state’s right to self-defense. Scholars call this theory “the collective rights theory.” A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.
One of the first rulings came in 1876 in U.S. v. Cruikshank. The case involved members of the Ku Klux Klan not allowing black citizens the right to standard freedoms, such as the right to assembly and the right to bear arms. As part of the ruling, the court said the right of each individual to bear arms was not granted under the Constitution.
Ten years later, the court affirmed the ruling in Presser v. Illinois when it said that the Second Amendment only limited the federal government from prohibiting gun ownership, not the states.
The Supreme Court took up the issue again in 1894 in Miller v. Texas. In this case, Dallas’ Franklin Miller sued the state of Texas, arguing that despite state laws saying otherwise, he should have been able to carry a concealed weapon under Second Amendment protection. The court disagreed, saying the Second Amendment does not apply to state laws, like Texas’ restrictions on carrying dangerous weapons.
All three of the cases heard before 1900 cemented the court’s opinion that the Bill of Rights, and specifically the Second Amendment, does not prohibit states from setting their own rules on gun ownership.
In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. In that case, Jack Miller and Frank Layton were arrested for carrying an unregistered sawed-off shotgun across state lines, which had been prohibited since the National Firearms Act of 1934.
Miller argued that the National Firearms Act violated their rights under the Second Amendment. The Supreme Court disagreed, however, saying “in the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” The Court then explained that the congress included the Second Amendment to ensure the effectiveness of the military.
It would be nearly 70 years before the court took up the issue again, this time in the District of Columbia v. Heller in 2008. The case centered on Dick Heller, a licensed special police office in Washington, D.C., who challenged the nation’s capital’s handgun ban. For the first time, the Supreme Court ruled that despite state laws, individuals who were not part of a state militia did have the right to bear arms. As part of its ruling, the court wrote, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
The court would rule on the issue again two years later as part of McDonald v. City of Chicago, which challenged the city’s ban on private handgun ownership. In a similar 5-to-4 ruling, the court affirmed its decision in the Heller case, saying the Second Amendment “applies equally to the federal government and the states.”
In 2016, the Supreme Court again ruled on a right-to-bear-arms case, Caetano v. Massachusetts. The case involved a woman who was in possession of a stun gun for self-defense against an abusive ex-boyfriend. Because stun guns were illegal under Massachusetts law, the woman was arrested and convicted for possessing the weapon. The case made its way to the Supreme Court, which ruled that stun guns and, indeed “all instruments that constitute bearable arms,” are protected under the Second Amendment.
In summary, for 217 years the Second Amendment was viewed by our highest court as regulating the preservation or efficiency of a “well regulated militia”. Then in 2008, the view changed that despite state laws, individuals who were not part of a state militia did have the individual right to bear arms.
Our world has changed significantly the last 226 years
The late 1700’s was a very different time from today.
- The US military was based on the States loaning their militia to the federal government. In other words there was no US military.
- Police forces and Sheriffs did not exist to protect citizens.
- Most people lived in very rural areas and firearms were necessary for protection and for hunting.
Things have changed dramatically since then!
Today the US military is the world’s largest employer.
With about 1.4 million active-duty military personnel, 1.1 million National Guard and reserve personnel and 700,000 civilian personnel, the U.S. Department of Defense employs more people than any other organization in the world. By comparison, the world’s largest corporation, Wal-Mart, has about 2.2 million workers on its payroll. The Department of Defense is also a huge land manager, controlling approximately 30 million acres worldwide, an area bigger than Pennsylvania.
The United States budgets almost as much money for defense as the rest of the world combined.
In 2013, the United States handed out $619 billion to the military, about as much as the next nine highest-spending countries combined and 37 percent of the worldwide total, according to the Stockholm International Peace Research Institute, which tabulates such numbers annually.
Today there are over 250 sworn police officers per 100,000 citizens.
In 2008, State and local law enforcement agencies employed more than 1.1 million people on a full-time basis, including about 765,000 sworn personnel (defined as those with general arrest powers). Agencies also employed approximately 100,000 part-time employees, including 44,000 sworn officers.
Federal police employed an additional 120,000 full-time law enforcement officers, authorized to make arrests and carry firearms in the United States.
From 2004 to 2008, overall full-time employment by state and local law enforcement agencies nationwide increased by about 57,000 (or 5.3%). From 2004 to 2008, the number of full-time sworn personnel per 100,000 U.S. residents increased from 250 to 251.
Today’s weapons were unthinkable in the 1700’s.
When the Bill of Rights was passed men had stopped carrying rapiers only 40 years earlier, and guns became the weapon of choice for a duel. A true dueling pistol was officially standardized in 1777 as “a 9 or 10 inch barreled, smooth bore flintlock of 1 inch bore, carrying a ball of 48 to the pound.” Often lavishly decorated, the pistols are made until dueling fell out of favor in the mid-1800s - about the same time that guns were becoming much more lethal.
It took 44 years after the Bill of Rights for weapons technology to advance to the first Colt revolver. In 1835 Samuel Colt developed the first mass-produced, multi-shot, revolving firearms. Colt was the first to apply Industrial Age machining tools to the manufacture of firearms.
The Crimean War (1854-56) was the last war to use only muzzle-loaded guns. 65 years after the Bill of Rights.
In 1873 the Winchester rifle was introduced - 82 years after the Bill of Rights. Winchester rifles were affordable, and produced in such great numbers that it became known as “the gun that won the West.”
It took a over a hundred years before the first automatic pistol was created by Joseph Laumann in 1892. The Borchardt pistol of 1893 was the first automatic with a separate magazine in the grip, and this remains the defining feature of handguns today.
Today we have automatic weapons that can fire 950 rounds per minute and weigh less than 5 pounds. They are designed to fire ammunition that will penetrate body armor, comprised of 1.6mm titanium plates and 20 layers of Kevlar, out to 200 meters and beyond (for example the Heckler & Koch MP7A1).
The framers of our Constitution and Bill of Rights had no way to foresee two hundred years into the future to the kinds of firearms that exist today. Can you imagine what kind of weapons might exist in 2217, two hundred years from now?
Where do we go from here?
For whatever reasons we never revisited the Second Amendment, to either clarify it, or to make it relevant to the world as it is today. Yet things are very different now:
- The political issues that the Second Amendment addressed are no longer relevant.
- Firearms today are nothing like the muskets of the 1700’s.
- The reasons to own weapons are different today than in the 1700’s. For one thing we have a standing military and police force now.
In hindsight wouldn’t it have made sense that:
- As the federal government built up it’s own military capability, and therefore no longer relied on State militias, we should have clarified or modified the Second Amendment?
- As federal, state, and local police forces were organized and expanded shouldn’t we have considered curbing or reducing ordinary citizens right to bear arms?
- As weapons and ammunition evolved from hunting and protection and became ever more lethal shouldn’t we have responsibly curbed the types and numbers of weapons that private citizens could own?
Isn’t it time to look at this topic with fresh eyes and open minds? To have a real national debate about what types of weapons and ammunition we believe citizens should own?
- Perhaps owning more than a few guns may not be in the public’s best interest. For what reason should a private citizen own 50 assault rifles?
- Perhaps owning certain types of weapons or ammunition may not be in the public’s best interest? Do we want private citizens with tracer rounds, or rounds specifically designed to defeat body armor?
- Perhaps it is reasonable to be concerned about certain individuals owning firearms. Do we want serial criminals or those with an active mental illness owning firearms?
The debate is not about banning gun ownership - rather it should be about how to responsibly manage modern firearm ownership in a modern society. Today it is much harder to obtain a license to drive a car that it is to own a firearm - where there is no “driver’s exam”. Is this really in the best interests of our country and our society?
Cornell Law School: Second Amendment
Historical timeline of the development of modern weapons
The Second Amendment & the Right to Bear Arms
9 Things You May Not Know About the U.S. Armed Forces
Law enforcement in the United States
Heckler & Koch MP7A1