In her sit-down with Oprah Winfrey, Kamala Harris echoed Barack Obama in proclaiming, “I believe in the Second Amendment,” by which they both meant that the Constitution protects the right of private citizens to own weapons. Such a declaration might be obligatory politically, but one hopes that each of them, one a former prosecutor and the other an ex-Constitutional Law professor, privately realize the truth…which is that the Second Amendment does not nor was ever intended to allow any American to arm him or herself in any manner they pleased.
Instead, the amendment was a direct offshoot of the debates at the Constitutional Convention concerning one of the most contentious questions the delegates faced—whether the United States should have a standing army. For most the answer was obvious.
No.
Standing armies were widely considered tools of a tyrant and to be avoided wherever possible. In 1776, for example, Samuel Adams wrote to a friend, “A Standing Army, however necessary it may be at some times, is always dangerous to the Liberties of the People. Soldiers are apt to consider themselves as a Body distinct from the rest of the Citizens… Such a power should be watched with a jealous Eye.”
Opposition to a national military did not mitigate over time. In 1784, Richard Henry Lee wrote to James Monroe, “You are perfectly right, Sir, in your observation concerning the consequence of a standing army—that it has constantly terminated in the destruction of liberty. It has not only been constantly so, but I think it clear from the construction of human nature, that it will always be so.”
Still, there needed to be a means of national defense, and those who opposed a standing army knew just the thing—well-regulated militias, citizen soldiers who could be called to arms in times of need.
There was, however, a vocal minority that distrusted militias, mainly those who had fought in the war and had actually been forced to deal with them. Small as it may have been, this group was not to be ignored, since it included George Washington, who at one point observed of militias, “They come in, you cannot tell how; go, you cannot tell when; and act, you cannot tell where… They consume your provisions, exhaust your stores, and leave you at last in a critical moment.”
But Washington, although president of the Convention, could not overcome the deep distrust of standing armies, where opposition was overwhelming.
James Madison told his fellow delegates, “A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defense against foreign danger have been always the instruments of tyranny at home… Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”
Another Virginian, George Mason, “hoped there would be no standing army in time of peace.” Elbridge Gerry noted, “The existing [Confederation] Congress is so constructed that it cannot of itself maintain an army. This would not be the case under the new system.” He predicted, “Great opposition to the plan would spring from such an omission,” because it might lead to a “military government.”
But if militias were to be the means of national defense, how could the government be certain citizen soldiers would be prepared to fight? The answer was simple. They must be armed. But supplying those arms would cost. If, on the other hand, militiamen were required to bring their own guns to battle, a near bankrupt nation could save itself a good bit of money.
Although virtually every delegate believed that private individuals should be able to own weapons, as almost all did, none viewed the right to ownership as universal. Free Blacks, of whom there were almost sixty thousand, more than half of those in the South, were legally enjoined from owning weapons, as were those of mixed race, and no one was proposing eliminating that prohibition.
There was also the question of training. For a militia to be effective, its members could not act either as a rabble nor exhibit the sort of undisciplined, by-state individuality that had plagued Washington during the war.
But states had no intention of giving up control of their militias to the national government, except in time of war, and perhaps not even then. Still, as Jonathan Dayton pointed out, “preparations for war are generally made in peace; and a standing force of some sort may, for ought we know, become unavoidable.”
As with many other incendiary issues, the delegates sidestepped the problem to avoid angering the states and threatening ratification. They instead resorted to the safer alternative of vague language. In Article I, Congress is granted the power, “To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.” They tried to walk the middle ground on militias as well. “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.”
There was nothing in the original document that discussed gun ownership as a private, individual right, nor was there any detail as to how militias would be “organized, armed, and disciplined.” These omissions, as did many others, came up in a number of states during the ratification process, thus necessitating a series of amendments, which later became known as the Bill of Rights.
In 1789, in the First Congress, while considering these enhancements, Madison proposed, “The right of the people to keep and bear arms shall not be infringed. A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
To again avoid ruffling the feathers of the individual states, the final wording eliminated “trained to arms,” which might have given the national government unacceptable power, and so the final wording became, “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.” As the first clause would indicate, the intent that the guarantee of gun ownership was related to the need for national defense was clear.
And so it remained for more than two centuries. The most significant challenge occurred in 1939, when Jack Miller, a convicted bank robber on the run from both law enforcement and associates on whom he had informed, was arrested for carrying a sawed-off shotgun across state lines. He failed in his Second Amendment challenge, a unanimous Supreme Court ruling that his weapon of choice had no military usage.
In 2008, however, a sharply divided Court issued a 5-4 ruling in DC v Heller, in which Antonin Scalia, for the first time, applied the Second Amendment to private gun ownership, ruling that the Constitution guaranteed the right to keep a weapon in the home for self-defense.
Scalia, who prided himself on his ability to read and understand the Constitution better than, well, just about anybody, and who in the past had ridiculed “intent” as the basis for other decisions, relied almost solely on his insistence that the Founders intended for Americans to be allowed private ownership of guns.
In that assertion he was correct, but that is not the same thing as having that right explicitly enunciated in the Constitution—which it is not. Who can own what weapons and under what circumstances should be a decision made by state and national legislatures based on the will of their electorates, not by dictates of the courts. It was a neat trick for a textualist to avoid the specifics of the text, but Scalia was nothing if not inventive.
Nonetheless, after Heller, the first clause of the amendment had been effectively erased. That erasure became even more indelible in 2022, when, in his majority opinion in New York State Rifle & Pistol Association v. Bruen, Clarence Thomas extended Heller to, among other locations, streets and shopping malls. In adopting the most expansive view of the Second Amendment in American history, Thomas and five of his colleagues ruled that, “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
As a result, Second Amendment law has descended into the preposterous notion of whether the Founders would have agreed that a man or woman could stroll into a supermarket, movie theater, or public park with his or her hand on the grip of a holstered pistol or with an AK 47 slung over the shoulder in plain view of other citizens, including perhaps children.
With this idiocy, gun rights have overwhelmed the law. School shootings, assassination attempts, and other forms of gun violence, much of it perpetrated with weapons whose killing power the Founders could not have dreamed of, have become, in the words of JD Vance, “a fact of life.”
It is more appropriately a fact of death.
And so, thanks to a group of conservative justices who flaunt a Constitution whose words and intent they ignore when it suits their political aims, an amendment written to promote public safety has been transformed into one that threatens it.
Sorry, Vice President Harris and President Obama, your belief in the Second Amendment, genuine or not, is tragically misplaced.
Hi Lawrence - I agree with you completely, but never knew of the full phrasing that pre-dated the final version. I've never understood the absurd modern interpretation of the second amendment. It's just money and profit over common sense - and what about the assault weapons ban? Doesn't anyone notice that almost all the mass shootings and assassination attempts are with these?
So you just argued FOR their beliefs. I am no prosecutor, attorney general, VP or presidential candidate; nor am I a loquacious constitutional lawyer and former two-term President, but I too believe in the 2A, for whatever that means, and it means nothing. Judicial review has ruined this country.