Now that we know the Founders said the People are the militia, the militia is independent of government and is intended to be a bulwark against government tyranny, let’s address a more difficult subject. What did the Founders mean when they said the People have the right to ‘arms?’ Did they leave us anything to help us understand what sort of ‘arms’ did they have in mind?
This is a more difficult question to answer. Not because there is no evidence to help us determine the answer, but because the Founders did not address this point directly. Therefore, we are forced to consider indirect evidence by which we may draw our conclusion. Consequently, this post will be longer than the rest in this series. I be the reader’s indulgence, as while it is the longest post, it is one of the most important (which is probably not a coincidence).
Once again, we must go back to the time of the founding and consider the Founders intentions in the context of their times. Or, as Jefferson and Madison both put it:
“On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed.”
— Thomas Jefferson, letter to William Johnson, 12 June 1823
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security
–James Madison, letter to Henry Lee, June 25, 1824
So, what motivated the Founders to write the Second Amendment? We must first remember that the Founders had just fought to free themselves from a tyrannical government. Now they were concerned with insuring the preservation of the liberty they had just won for themselves, as well as their posterity. Therefore, whatever meaning the Founders intended to be implied by the term, ‘arms,’ we must draw a conclusion that is consistent with their expressed intentions: to provide the People with the ability to defend the nation; suppress rebellion or insurrection; and to defend themselves against a tyrannical government and whatever army it may bring to bear against them.
Here is where we must use logic. First, what did the word, ‘arms,’ mean in their day? According to the Webster’s Dictionary of 1828 (edited for the purposes at hand):
‘ARMS, noun plural [Latin arma.]
1. Weapons of offense, or armor for defense and protection of the body.
2. War; hostility.
To be in arms to be in a state of hostility, or in a military life.
To arms is a phrase which denotes a taking arms for war or hostility; particularly, a summoning to war.
To take arms is to arm for attack or defense.
Bred to arms denotes that a person has been educated to the profession of a soldier.
Sire arms are such as may be charged with powder, as cannon, muskets, mortars, etc.
A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary.
Notice that the Founders did not use a qualifying adjective before ‘arms,’ therefore, we are not entitled to assume they meant firearms, or sidearms, but more probably, they intended the broader definition, which extends to both offensive and defensive armament. Furthermore, it leaves open the possibility that they meant to include military weaponry, as well. But why should we assume this understanding?
First, the founders came from English Common Law, where the right to keep and bear arms was permitted, but only under stated restrictions. However, the English Common Law narrowly not only defined the types of weapons that were permitted, it also described the conditions under which they were permitted. this means the Founders were familiar with such restrictions, but they chose to leave such language out of the Second Amendment. While this is not an affirmative expression of intent, when one considers how concerned our Founders were over the precise use of language, and how thoroughly they debated that language, it is certainly telling that they left all qualifiers and restrictions out of the Second Amendment.
At this point, simple logic would suggest that the most likely intention of the Founders was that the Second Amendment includes the individual right to keep weapons of war. Otherwise, the Founders would be contradicting their expressed intentions of preserving the Peoples’ ability to wage war against an invading army or the army of a tyrannical government turned against them. To assume the Founders imply a negation of an intent they so clearly, forcefully and repeatedly asserted is simply unwarranted and — frankly — bordering on irrational (or secretly tyrannical).
Still, this is not enough. We should see if we can find something from the Founders that suggests they did — in fact — intend for the People to be at least as well armed as any army they may have to face. Does anything like this exist in the historic record? Yes, and from none other than one of the most authoritative voices on how the Constitution was intended to be understood:
“[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”— Alexander Hamilton, Federalist No. 28, January 10, 1788
EDITORIAL NOTE: I am well aware that the conclusions in this post will draw strenuous objection from many fronts. However, I will deal with the most obvious of them in separate posts. The purpose of this post is meant to be narrow, so it can be more easily understood. That purpose being to determine whether or not the Founders actually left us sufficient evidence to determine whether they intended the Second Amendment to cover private ownership of military weapons.
ADDENDUM: 28 Feb 2018 (please follow this link for an explanation of this addendum)
I formed my position on the Founders’ original intent behind their use of the word, ‘arms,’ long before I wrote this post. However, it was not until today that I found the following passage. To date, it is the clearest, most forceful assertion I have found in the Founders’ writings. It leaves no room for argument or debate over the original meaning of the Second Amendment. It clearly links the militia to the individual American, and the individual American’s birth right to own and bear any military weapon of the common soldier. It even allows that the Founders recognized such weapons can be and are terrible, but that they asserted this right nonetheless.
“The powers of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry (farmers/landowners collectively) of America from sixteen to sixty. The militia of these free commonwealths entitled and accustomed to their arms, when compared with any possible [standing] army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared then, that we shall turn our arms each man against his own bosom? Congress have no right to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.”
Now, I fully realize the peril of making blanket statement such as the one I am about to make, but — in this case — I do not see how there can be any other rational conclusion:
From the whole of the historic record — both in the context of the times and in the body of the historical record left to us — It is clear that the Founders intended the Second Amendment to block Congress from having any authority over the individual American and his birth-right to keep and bear the military weaponry of a soldier.