23 Feb 2023, 9:50 am
The Second Amendment has always been somewhat confusing. Why this preamble about a well-regulated militia? Why not just say the federal government could not prevent people from having guns?
Because it wasn't an individual right. The concern was that since Congress had been given powers in the Constitution regarding militias that states had been deprived of the power to regulate their own militia. This is clear from discussions from the minutes of the Virginia Ratification Convention, which has out-sized importance given the importance of Jefferson, Madison, etc who were from that state.
The Virginia Ratification Convention discussions are the key to explication of the 2nd Amendment. One of the proposed amendments at that Convention was as follows:
"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state..."
This is not some individual right to own guns. It's a collective right of "the People" to keep and bear arms. Who are the "People"? The states! Essentially. The central government is the power to be feared here.
The concern came from power given to Congress with regard given to militias. One delegate outlined their power of Congress 'to provide for the arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.' Another part tells you that they are to provide for calling them forth, to execute the laws of the Union, suppress insurrections, and repel invasions. These powers only amount to this--that they can only call them forth in these three cases, and that they can only govern such part of them as may be in the actual service of the United States..."
Given that Congress has expressed power to call out the militia..to arm, organize, and discipline them...did that imply that states had no ability to do so? Did Congressional power clear the field? Mr. Mason expressed his concern:
"But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use. I am not acquainted with the military. I beg to be excused for any errors I may commit with respect to it. But I stand on the general principles of freedom, whereon I dare to meet any one. 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."
Patrick Henry expressed concern that militia called out from other states might not be interested in putting down for instance a slave insurrection in another state...
And that MAY have been the biggest fear. In any case, the 2nd Amendment was a collective guarantee that states could not be prevented by Congress from having the power to arm and to have a well-trained ("well-regulated") military force of their own to deal with internal problems (or deter an attempt to overthrow democracy).
So knowing the real concern the words of the Second Amendment make total sense. "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." A well-regulated militia means being properly armed, trained and disciplined. What does the "right of the People to keep and bear arms" mean. Well, arms does not refer to weapons; it means using them in a military sense, in a collective sense. An individual cannot act in a militarily sense. He can only do so as part of a military unit that has been trained. So this clause simply means Congress did not clear the field with regard to arming and maintaining a militia. States had the power to do so.
https://press-pubs.uchicago.edu/founder ... 12s27.html
https://press-pubs.uchicago.edu/founder ... 14s43.html
Because it wasn't an individual right. The concern was that since Congress had been given powers in the Constitution regarding militias that states had been deprived of the power to regulate their own militia. This is clear from discussions from the minutes of the Virginia Ratification Convention, which has out-sized importance given the importance of Jefferson, Madison, etc who were from that state.
The Virginia Ratification Convention discussions are the key to explication of the 2nd Amendment. One of the proposed amendments at that Convention was as follows:
"17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state..."
This is not some individual right to own guns. It's a collective right of "the People" to keep and bear arms. Who are the "People"? The states! Essentially. The central government is the power to be feared here.
The concern came from power given to Congress with regard given to militias. One delegate outlined their power of Congress 'to provide for the arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.' Another part tells you that they are to provide for calling them forth, to execute the laws of the Union, suppress insurrections, and repel invasions. These powers only amount to this--that they can only call them forth in these three cases, and that they can only govern such part of them as may be in the actual service of the United States..."
Given that Congress has expressed power to call out the militia..to arm, organize, and discipline them...did that imply that states had no ability to do so? Did Congressional power clear the field? Mr. Mason expressed his concern:
"But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use. I am not acquainted with the military. I beg to be excused for any errors I may commit with respect to it. But I stand on the general principles of freedom, whereon I dare to meet any one. 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."
Patrick Henry expressed concern that militia called out from other states might not be interested in putting down for instance a slave insurrection in another state...
And that MAY have been the biggest fear. In any case, the 2nd Amendment was a collective guarantee that states could not be prevented by Congress from having the power to arm and to have a well-trained ("well-regulated") military force of their own to deal with internal problems (or deter an attempt to overthrow democracy).
So knowing the real concern the words of the Second Amendment make total sense. "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." A well-regulated militia means being properly armed, trained and disciplined. What does the "right of the People to keep and bear arms" mean. Well, arms does not refer to weapons; it means using them in a military sense, in a collective sense. An individual cannot act in a militarily sense. He can only do so as part of a military unit that has been trained. So this clause simply means Congress did not clear the field with regard to arming and maintaining a militia. States had the power to do so.
https://press-pubs.uchicago.edu/founder ... 12s27.html
https://press-pubs.uchicago.edu/founder ... 14s43.html
