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from a few years ago
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Love it or hate it, the Second Amendment provides the constitutional framework for American gun laws. As with all things constitutional, Americans are adapting 18th-century laws to fit 21st-century lives. But in reality, the concerns of the Founding Fathers had little to do with either side’s position in the modern gun-control debate. None of the issues animating that debate — from “stand your ground” laws to assault weapons bans — entered into the Founders’ thinking.
Yet because both sides in debates about the Second Amendment invoke what the Founders would have thought, it’s important to look at what they actually intended.
1. The Founding Fathers were devoted to the militia.
Read the debates about the Constitution and the Bill of Rights, and the militia’s importance leaps off the page. Alexander Hamilton, writing in the Federalist Papers, called a well-regulated militia “the most natural defense of a free country.” His anti-Federalist critics agreed with the need for a citizens’ militia, writing that “a well regulated militia, composed of the Yeomanry of the country, have ever been considered as the bulwark of a free people.”
Their disagreement was over how best to ensure that the militia was maintained, as well as how to divide up the roles of the national government vs. state governments. But both sides were devoted to the idea that all citizens should be part-time soldiers, because both sides believed a standing army was an existential threat to the ideas of the revolution.
2. The amendment’s primary justification was to prevent the United States from needing a standing army.
Preventing the United States from starting a professional army, in fact, was the single most important goal of the Second Amendment. It is hard to recapture this fear today, but during the 18th century few boogeymen were as scary as the standing army — an army made up of professional, full-time soldiers.
By the logic of the 18th century, any society with a professional army could never be truly free. The men in charge of that army could order it to attack the citizens themselves, who, unarmed and unorganized, would be unable to fight back. This was why a well-regulated militia was necessary to the security of a free state: To be secure, a society needed to be able to defend itself; to be free, it could not exist merely at the whim of a standing army and its generals.
The only way to be both free and secure was for citizens to be armed, organized and ready to defend their society. The choice was a stark one: a standing army or a free nation.
3. The authors of the Bill of Rights were not concerned with an “individual” or “personal” right to bear arms.
Before the landmark 2008 Supreme Court case District of Columbia v. Heller, courts had ruled that the right of individual citizens to bear arms existed only within the context of participation in the militia. In Heller, the Supreme Court overturned that precedent, delivering gun rights advocates their biggest legal victory.
This was not, however, a return to an “original understanding” of the Second Amendment, as Justice Antonin Scalia claimed for the majority. It’s not that the Founding Fathers were against the idea of an individual right to bear arms. It just was not an issue that concerned them.
Again, the militia was all important: The men writing the Bill of Rights wanted every citizen to be in the militia, and they wanted everyone in the militia to be armed. If someone was prohibited from participating in the militia, the leaders of the Founders’ generation would not have wanted them to have access to weapons. In fact, the 18th-century regulations that required citizens to participate in the militia also prohibited blacks and Indians from participating as arms-bearing members.
4. The Founding Fathers were very concerned about who should, or should not, be armed.
These restrictions on militia membership are critically important to understand. Because despite the words of the Second Amendment, 18th-century laws did infringe on Americans’ right to bear arms.
Laws rarely allowed free blacks to have weapons. It was even rarer for African Americans living in slavery to be allowed them. In slave states, militias inspected slave quarters and confiscated weapons they found. (There were also laws against selling firearms to Native Americans, although these were more ambiguous.)
These restrictions were no mere footnote to the gun politics of 18th-century America. White Americans were armed so that they could maintain control over nonwhites. Nonwhites were disarmed so that they would not pose a threat to white control of American society.
The restrictions underscore a key point about militias: They were more effective as domestic police forces than they were on the battlefield against enemy nations; and they were most effective when they were policing the African American population..............
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Love it or hate it, the Second Amendment provides the constitutional framework for American gun laws. As with all things constitutional, Americans are adapting 18th-century laws to fit 21st-century lives. But in reality, the concerns of the Founding Fathers had little to do with either side’s position in the modern gun-control debate. None of the issues animating that debate — from “stand your ground” laws to assault weapons bans — entered into the Founders’ thinking.
Yet because both sides in debates about the Second Amendment invoke what the Founders would have thought, it’s important to look at what they actually intended.
1. The Founding Fathers were devoted to the militia.
Read the debates about the Constitution and the Bill of Rights, and the militia’s importance leaps off the page. Alexander Hamilton, writing in the Federalist Papers, called a well-regulated militia “the most natural defense of a free country.” His anti-Federalist critics agreed with the need for a citizens’ militia, writing that “a well regulated militia, composed of the Yeomanry of the country, have ever been considered as the bulwark of a free people.”
Their disagreement was over how best to ensure that the militia was maintained, as well as how to divide up the roles of the national government vs. state governments. But both sides were devoted to the idea that all citizens should be part-time soldiers, because both sides believed a standing army was an existential threat to the ideas of the revolution.
2. The amendment’s primary justification was to prevent the United States from needing a standing army.
Preventing the United States from starting a professional army, in fact, was the single most important goal of the Second Amendment. It is hard to recapture this fear today, but during the 18th century few boogeymen were as scary as the standing army — an army made up of professional, full-time soldiers.
By the logic of the 18th century, any society with a professional army could never be truly free. The men in charge of that army could order it to attack the citizens themselves, who, unarmed and unorganized, would be unable to fight back. This was why a well-regulated militia was necessary to the security of a free state: To be secure, a society needed to be able to defend itself; to be free, it could not exist merely at the whim of a standing army and its generals.
The only way to be both free and secure was for citizens to be armed, organized and ready to defend their society. The choice was a stark one: a standing army or a free nation.
3. The authors of the Bill of Rights were not concerned with an “individual” or “personal” right to bear arms.
Before the landmark 2008 Supreme Court case District of Columbia v. Heller, courts had ruled that the right of individual citizens to bear arms existed only within the context of participation in the militia. In Heller, the Supreme Court overturned that precedent, delivering gun rights advocates their biggest legal victory.
This was not, however, a return to an “original understanding” of the Second Amendment, as Justice Antonin Scalia claimed for the majority. It’s not that the Founding Fathers were against the idea of an individual right to bear arms. It just was not an issue that concerned them.
Again, the militia was all important: The men writing the Bill of Rights wanted every citizen to be in the militia, and they wanted everyone in the militia to be armed. If someone was prohibited from participating in the militia, the leaders of the Founders’ generation would not have wanted them to have access to weapons. In fact, the 18th-century regulations that required citizens to participate in the militia also prohibited blacks and Indians from participating as arms-bearing members.
4. The Founding Fathers were very concerned about who should, or should not, be armed.
These restrictions on militia membership are critically important to understand. Because despite the words of the Second Amendment, 18th-century laws did infringe on Americans’ right to bear arms.
Laws rarely allowed free blacks to have weapons. It was even rarer for African Americans living in slavery to be allowed them. In slave states, militias inspected slave quarters and confiscated weapons they found. (There were also laws against selling firearms to Native Americans, although these were more ambiguous.)
These restrictions were no mere footnote to the gun politics of 18th-century America. White Americans were armed so that they could maintain control over nonwhites. Nonwhites were disarmed so that they would not pose a threat to white control of American society.
The restrictions underscore a key point about militias: They were more effective as domestic police forces than they were on the battlefield against enemy nations; and they were most effective when they were policing the African American population..............
