Silveira v. Lockyer (2002), US Court of Appeals, Ninth Circuit

We the People

Silveira v. Lockyer was a 2002 US Appeals Court decision that upheld California’s 1999 Assault Weapons Ban, which plaintiffs argued violated the 2nd Amendment of the US Constitution. The case involved a challenge to the constitutionality of the Roberti-Roos Assault Weapons Control Act (AWCA), by which California banned the manufacture, sale, transportation, or importation of specified semi-automatic firearms. The plaintiffs alleged that various provisions of the AWCA infringed upon their constitutionally guaranteed right to keep and bear arms as individuals.

Judge Stephen R. Reinhardt wrote the opinion of the court. The court engaged in an extensive analysis of the history of the Second Amendment and its attendant case law, and it ultimately determined that the Second Amendment does not guarantee individuals the right to keep and bear arms. Instead, the court concluded that the Second Amendment provides “collective” rights, which is limited to the arming of state militia. The Ninth Circuit refused to hear the case en banc and the US Supreme Court denied review.

[The National Rifle Association, Jews for the Preservation of Firearms Ownership, the Second Amendment Sisters, Women Against Gun Control, and Pink Pistols (a homosexual gun-rights group) filed amicus briefs with the Supreme Court in support of the challenge, funded by KeepAndBearArms.com, to the Silveira v. Lockyer decision.]

Following are the significant excerpts from the decision that offer perhaps the most thorough and most historically-accurate analysis found in any federal court ruling on the meaning and intent of the Founders’ language in the 2nd Amendment. [For a more exhaustive analysis of the issue, see The Real Second Amendment and District of Columbia v. Heller – A Radical Decision that Created a Middle Path.]

The decision disagreed with the holding of the Fifth Circuit in United States v. Emerson and, more recently, that of the US Supreme Court in District of Columbia v. Heller (2008), which held that the right to keep and bear arms is in fact a right of individuals. The Supreme Court also later held in McDonald v. Chicago (2010) that the 2nd Amendment is an incorporated right, meaning that it is applicable to state governments as well as the Federal government.

Conservative Judicial Disgust

Conservative jurists, both before and after the Heller decision, have denounced the distortion of the Founders’ intent and language by those advocating for an individual rights interpretation of the 2nd Amendment.

In 1991, Warren E. Burger, the conservative Chief Justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the NRA interpretation of the Second Amendment’s “right to keep and bear arms”. Burger answered that the Second Amendment “has been the subject of one of the greatest pieces of fraud – I repeat the word ‘fraud’ – on the American public by special interest groups that I have ever seen in my lifetime.” In a speech in 1992, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all”. In his view, the purpose of the Second Amendment was “to ensure that the ‘state armies’ – ‘the militia’ – would be maintained for the defense of the state”.

Appellate judges J. Harvie Wilkinson III and Richard Posner, two of the leading conservative legal thinkers and both appointed by Reagan, were critical of the Scalia majority opinion in Heller. Wilkerson was on Bush’s short list to replace Chief Justice Rehnquist and Posner was a former professor at the University of Chicago Law School, where he was a colleague of Scalia.

Posner wrote that Scalia’s opinion employed “faux originalism” and that, when it came to the original meaning of the Second Amendment, Justice Steven’s dissent had the better argument. The “motivation for the Second Amendment” was only to protect state militias from being disarmed by the federal government, according to Posner. “The text of the amendment, whether viewed alone or in light of the concerns that actuated its adoption, creates no right to the private possession of guns for hunting or other sport, or for the defense of person or property.”

Echoing Warren Burger’s language, Posner wrote that Heller is “not evidence of a disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.”

Posner and Wilkinson both condemned Heller as a right-wing version of Roe v. Wade, the bête noire of conservatives for more than thirty years. Wilkinson wrote a widely-circulated article that accused the Court of undermining states’ rights and legislating from the bench, imposing the majority’s values on the text. “Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts.”

Conservative law professor Nelson Lund, member of the Federalist Society, a devout originalist and a proponent of the individual rights interpretation, never-the-less said that Scalia’s argument “is not an originalist or historical argument. If it’s any kind of an argument at all, it’s probably a disguised and incomplete form of the Beyer interest-balancing approach that Scalia disdainfully dismissed.”

Re-Writing the US Constitution from the Bench

For the same five-justice majority to then claim that an amendment clearly intended by the ratifying state conventions and the First Congress to limit ONLY federal pre-emption of the state’s right to arm and organize their militias applied equally to all the states as well as to the federal government, is a brazen denial of the unambiguous history of the debate on and adoption of the 2nd Amendment.

Beyond simply “legislating from the bench”, as judge Wilkinson alleged, the Heller and subsequent McDonald opinions effectively amended the US Constitution from the bench, thereby bypassing the constitutionally-mandated procedure for altering the Constitution and hence engaging in an anti-constitutional crime against We the People – the greatest such crime since Abraham Lincoln violated the Constitution ten different ways in order to prosecute his War Against the South [See Civil War: The Conquest of Agrarianism by Industrialism and The Right of Secession – Lincoln as Tyrant.]

The only Americans who celebrated the Heller and McDonald decisions were those who, only since the 1970s (for the first 200 years of US history, nobody questioned the collective right meaning of the 2nd Amendment), have been trying to do what the five SCOTUS justices accomplished: engage in historical revisionism in service to a radical and fundamentally anti-American political agenda. [See The NRA Story: From Rifle Club to Extremist Gun Rights Lobby: How the National Rifle Association evolved from a Shooting Club to a Terrorist Organization.]

Summary of  the Ninth Circuit Appellate Analysis

[The parenthetical comments in square brackets and italics, concluded by my initials – RR – are my own interjections.]

The Text and Structure of the Second Amendment Demonstrate that the Amendment’s Purpose is to Preserve Effective State Militias; That Purpose Helps Shape the Content of the Amendment.

The Second Amendment states in its entirety: “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 commentators on all sides of the debate regarding the amendment’s meaning have acknowledged, the language of the amendment alone does not conclusively resolve the question of its scope. What renders the language and structure of the amendment particularly striking is the existence of a prefatory clause, a syntactical device that is absent from all other provisions of the Constitution, including the nine other provisions of the Bill of Rights. Our analysis thus must address not only the meaning of each of the two clauses of the amendment but the unique relationship that exists between them.

The first or prefatory clause of the Second Amendment sets forth the amendment’s purpose and intent. An important aspect of ascertaining that purpose and intent is determining the import of the term “militia”. Many advocates of the traditional individual rights model, including the Fifth Circuit, have taken the position that the term “militia” was meant to refer to all citizens, and, therefore, that the first clause simply restates the second in more specific terms. Relying on their definition of “militia”, they conclude that the prefatory clause was intended simply to reinforce the grant of an individual right that they assert is made by the second clause. We agree with the Fifth Circuit in a very limited respect. We agree that the interpretation of the first clause and the extent to which that clause shapes the content of the second depends in large part on the meaning of the term “militia”.

If militia refers, as the Fifth Circuit suggests, to all persons in a state, rather than to the state military entity, the first clause would have one meaning – a meaning that would support the concept of traditional individual rights. If the term refers instead, as we believe, to the entity ordinarily identified by that designation, the state-created and -organized military force, it would likely be necessary to attribute a considerably different meaning to the first clause of the Second Amendment and ultimately to the amendment as a whole.

We believe the answer to the definitional question is the one that most persons would expect: “militia” refers to a state military force. We reach our conclusion not only because that is the ordinary meaning of the word, but because contemporaneously enacted provisions of the Constitution that contain the word “militia” consistently use the term to refer to a state military entity, not to the people of the state as a whole. We look to such contemporaneously enacted provisions for an understanding of words used in the Second Amendment in part because this is an interpretive principle recently explicated by the Supreme Court in a case (United States v. Verdugo-Urquidez) involving another word that appears in that amendment – the word “people” (see note below). That same interpretive principle is unquestionably applicable when we construe the word “militia”.

[United States v. Verdugo-Urquidez: “The people” seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States”. The Second Amendment protects “the right of the people to keep and bear Arms”, and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people”. While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.]

“Militia” appears repeatedly in the first and second Articles of the Constitution. From its use in those sections, it is apparent that the drafters were referring in the Constitution to the second of two government-established and -controlled military forces. Those forces were, first, the national army and navy, which were subject to civilian control shared by the president and Congress, and, second, the state militias, which were to be “essentially organized and under control of the states, but subject to regulation by Congress and to ‘federalization’ at the command of the president.” (Paul Finkelman, “A Well Regulated Militia”: The Second Amendment in Historical Perspective, 2000).

Article I also provides that the militia, which is essentially a state military entity, may on occasion be federalized; Congress may “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”. The fact that the militias may be “called forth” by the federal government only in appropriate circumstances underscores their status as state institutions. Article II also demonstrates that the militia were conceived of as state military entities; it provides that the President is to be “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States”.

Like the Second Amendment, not all of the provisions in Articles I and II refer specifically to the militia as “the state militia”. Nevertheless, the contexts in which the term is used demonstrate that even without the prefatory word, “militia” refers to state military organizations and not to their members or potential members throughout these two Articles.

Our conclusion that “militia” refers to a state entity, a state fighting force, is also supported by the use of that term in another of the provisions of the Bill of Rights. The Fifth Amendment, enacted by the First Congress at the same time as the Second Amendment, provides that a criminal defendant has a right to an indictment or a presentment “except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”. The inclusion of separate references to the “land or naval forces” and “the Militia”, both of which may be in “actual service” to the nation’s defense, indicates that the framers conceived of two formal military forces that would be active in times of war – one being the national army and navy, and the other the federalized state militia. Certainly, the use of “militia” in this provision of the Bill of Rights is most reasonably understood as referring to a state entity, and not to the collection of individuals who may participate in it.

Not only did the drafters of the Constitution use “militia” to refer to state military entities, so too did the drafters of the Constitution’s predecessor document, the Articles of Confederation. The Articles provided that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage”. [Nota bene: even prior to the Constitution, states were required to keep arms and ammunition sufficient to outfit their militias – not to rely on individually-owned arms. – RR] The “well regulated and disciplined militia[s]” described by the Articles of Confederation were quite clearly those institutions established by the individual states. Thus, the prevailing understanding both before and at the time of the adoption of the Constitution was that a “militia” constituted a state military force to which the able-bodied male citizens of the various states might be called to service.

To determine that “militia” in the Second Amendment is something different from the state entity referred to whenever that word is employed in the rest of the Constitution would be to apply contradictory interpretive methods to words in the same provision. The interpretation urged by those advocating the traditional individual rights view would conflict directly with Verdugo-Urquidez. If the term “the people” in the latter half of the Second Amendment must have the same meaning throughout the Constitution, so too must the phrase “militia”.

Our reading of the term “militia” as referring to a state military force is also supported by the fact that in the amendment’s first clause the militia is described as “necessary to the security of a free State”. This choice of language was far from accidental: Madison’s first draft of the amendment stated that a well-regulated militia was “the best security of a free country”. Anti-Federalist Elbridge Gerry explained that changing the language to “necessary to the security of a free State” emphasized the primacy of the state militia over the federal standing army: “A well-regulated militia being the best security of a free state, admitted an idea that a standing army was a secondary one.”

In any event, it is clear that the drafters believed the militia that provides the best security for a free state to be the permanent state militia, not some amorphous body of the people as a whole, or whatever random and informal collection of armed individuals may from time to time appear on the scene for one purpose or another.

Finally, our definition of “militia” is supported by the inclusion of the modifier “well regulated”. As an historian of the Founding Era has noted, the inclusion of that phrase “further shows that the Amendment does not apply to just anyone” (Finkelman). The Second Amendment was enacted soon after the August 1786 – February 1787 uprising of farmers in Western Massachusetts known as Shays’s Rebellion. What the drafters of the amendment thought “necessary to the security of a free State” was not an “unregulated” mob of armed individuals such as Shays’s band of farmers, the modern-day privately organized Michigan Militia, the type of extremist “militia” associated with Timothy McVeigh and other militants with similar anti-government views, groups of white supremacists or other racial or religious bigots, or indeed any other private collection of individuals. To the contrary, “well regulated” confirms that “militia” can only reasonably be construed as referring to a military force established and controlled by a governmental entity.

After examining each of the significant words or phrases in the Second Amendment’s first clause, we conclude that the clause declares the importance of state militias to the security of the various free states within the confines of their newly structured constitutional relationship. With that understanding, the reason for and purpose of the Second Amendment becomes clearer.

The Meaning of the Amendment’s Second Clause: “The Right of the People to Keep and Bear Arms, Shall Not Be Infringed”.

Having determined that the first clause of the Second Amendment declares the importance of state militias to the proper functioning of the new constitutional system, we now turn to the meaning of the second clause, the effect the first clause has on the second, and the meaning of the amendment as a whole. The second clause – “the right of the people to keep and bear Arms, shall not be infringed” – is not free from ambiguity. We consider it highly significant, however, that the second clause does not purport to protect the right to possess” or “own” arms, but rather to “keep and bear” arms. This choice of words is important because the phrase “bear arms” is a phrase that customarily relates to a military function. Historical research shows that the use of the term “bear arms” generally referred to the carrying of arms in military service – not the private use of arms for personal purposes.

For instance, Professor Dorf, after canvassing documents from the founding era, concluded that “overwhelmingly, the term had a military connotation” (Michael C. Dorf, What Does the Second Amendment Mean Today?). Our own review of historical documents confirms the professor’s report. The Tennessee Supreme Court, in the most significant judicial decision to construe the term “bear arms”, concluded that it referred to the performance of a military function: “A man in pursuit of deer, elk and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.” (Aymette v. State, 1840). Other nineteenth-century judicial opinions evince that same understanding of the term, as it appears in the Constitution. See English v. State, 1872: “The word ‘arms’ in the connection we find it in the Constitution of the United States refers to the arms of a militiaman or soldier, and the word is used in its military sense.”; State v. Workman, W. Va. 1891: “In regard to the kind of arms referred to in the [Second Amendment, it must be held to refer to the weapons of warfare to be used by the militia.”; see also Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms, 1915: “The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as ‘bearing arms’.” Further, the Oxford English Dictionary defines “to bear arms” as “to serve as a soldier, do military service, fight”.

Thus, the use of the phrase “bear arms” in its second clause strongly suggests that the right that the Second Amendment seeks to protect is the right to carry arms in connection with military service. We also believe it to be significant that the first version of the amendment proposed by Madison to the House of Representatives concluded with an exemption from “bearing arms” for the “religiously scrupulous” (“No person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”) Historians have observed that “no state at the time, nor any state before, had ever compelled people to carry weapons in their private capacity” (Finkelman). Accordingly, the exemption from bearing arms for the religiously scrupulous can only be understood as an exemption from carrying arms in the service of a state militia, and not from possessing arms in a private capacity. Otherwise, Madison’s insertion of the religiously-scrupulous exception in the first draft of the present amendment would have made no sense at all.

Finally, we address the use of the term “keep” in the second clause. The reason why that term was included in the amendment is not clear. The Fifth Circuit, in US v Emerson (2001), citing no authority, concludes that “keep” does not relate to military weapons and therefore the use of the word supports the position that the amendment grants individuals the right to keep arms for personal use. There appears to be little logic or reason to that analysis. Arms can be “kept” for various purposes – military, social, or criminal. The question with respect to the Second Amendment is not whether arms may be kept, but by whom and for what purpose. If they may be kept so that the possessor is enabled to “bear arms” that are required for military service, the words would connote something entirely different than if they may be kept for any individual purpose whatsoever. In this connection, some scholars have suggested that “keep and bear” must be construed together (like “necessary and proper”) as a unitary phrase that relates to the maintenance of arms for military service. That argument appears to us to have considerable merit.

Certainly the right to keep arms is of value only if a right to use them exists. The only right to use arms specified in the Constitution is the right to “bear” them. Thus, it seems unlikely that the drafters intended the term “keep” to be broader in scope than the term “bear”. Any other explanation would run into considerable logical and historical difficulty. Furthermore, historians have noted that the right of the states to “keep” arms was a catalyst for the Revolution – it was the British troops’ attempts to capture the Massachusetts militia’s arsenal that prompted Paul Revere’s warning and the battles at Lexington and Concord to defend the states’ stores of munitions (Finkelman). Accordingly, the ability of states to “keep” arms for military use without external interference undoubtedly was prominent in the minds of many founders. In the end, however, the use of the term “keep” does not appear to assist either side in the present controversy to any measurable extent. Certainly, the use of the term does not detract from the significance of the drafters’ decision to protect the right to “bear” arms rather than to “own” or “possess” them. Thus, it in no way undercuts the strong implication that the right granted by the second clause relates to the performance of a military function, and not to the indiscriminate possession of weapons for personal use.

The Relationship between the Two Clauses.

Our next step is to consider the relationship between the two clauses, and the meaning of the amendment as a whole. As we have noted, and as is evident from the structure of the Second Amendment, the first clause explains the purpose of the more substantive clause that follows, or, to put it differently, it explains the reason necessitating or warranting the enactment of the substantive provision. Moreover, in this case, the first clause does more than simply state the amendment’s purpose or justification: it also helps shape and define the meaning of the substantive provision contained in the second clause, and thus of the amendment itself. This approach is consistent with that taken by the Supreme Court regarding the Preamble to the Constitution in a number of other instances. See US Term Limits v. Thornton, 1995, pointing to language in the Preamble to the Constitution to determine the nature of representation established in that document. More important, it is the approach that the Supreme Court has specifically declared must be employed when seeking to determine the meaning of the Second Amendment (“With the obvious purpose to assure the continuation and render possible the effectiveness of [state militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” – United States v. Miller, 1939)

When the second clause is read in light of the first, so as to implement the policy set forth in the preamble, we believe that the most plausible construction of the Second Amendment is that it seeks to ensure the existence of effective state militias in which the people may exercise their right to bear arms, and forbids the federal government to interfere with such exercise. This conclusion is based in part on the premise, explicitly set forth in the text of the amendment, that the maintenance of effective state militias is essential to the preservation of a free State, and in part on the historical meaning of the right that the operative clause protects – the right to bear arms. In contrast, it seems reasonably clear that any fair reading of the “bear Arms” clause with the end in view of “assuring … the effectiveness of” the state militias cannot lead to the conclusion that the Second Amendment guarantees an individual right to own or possess weapons for personal and other purposes. See, e.g., Gillespie v. City of Indianapolis, 7th Cir. 1999: “adopting the collective rights theory and concluding that firearms possession related to militia service represents too attenuated a connection to the purpose and objective of the Second Amendment to support a claim of an individual right”.

In the end, however, given the history and vigor of the dispute over the meaning of the Second Amendment’s language, we would be reluctant to say that the text and structure alone establish with certainty which of the various views is correct. Fortunately, we have available a number of other important sources that can help us determine whether ours is the proper understanding. These include records that reflect the historical context in which the amendment was adopted, and documents that contain significant portions of the contemporary debates relating to the adoption and ratification of the Constitution and the Bill of Rights. We now examine those sources, all of which ultimately point to the same result to which our analysis of the text leads us.

The Historical Context of the Second Amendment and the Debates Relevant to its Adoption Demonstrate that the Founders Sought to Protect the Survival of Free States by Ensuring the Existence of Effective State Militias, Not by Establishing An Individual Right to Possess Firearms.

An examination of the historical context surrounding the enactment of the Second Amendment leaves us with little doubt that the proper reading of the amendment is that embodied in the collective rights model. We note at the outset that the interpretation of the Second Amendment lends itself particularly to historical analysis. The content of the amendment is restricted to a narrow, specific subject that is itself defined in narrow, specific terms. Only one other provision of the Bill of Rights is similarly composed – the almost never used Third Amendment (No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.). The other eight amendments all employ broad and general terms, such as “no law respecting” (the Free Exercise Clause), “unreasonable” (searches and seizures), “due process of law” (for deprivations of life, liberty, and property), “cruel and unusual” (punishments). Even the Ninth and Tenth Amendments speak vaguely of “other” rights or unenumerated “reserved” rights. The use of narrow, specific language of limited applicability renders the task of construing the Second Amendment somewhat different from that which we ordinarily undertake when we interpret the other portions of the Bill of Rights.

What our historical inquiry reveals is that the Second Amendment was enacted in order to assuage the fears of Anti-Federalists that the new federal government would cause the state militias to atrophy by refusing to exercise its prerogative of arming the state fighting forces, and that the states would, in the absence of the amendment, be without the authority to provide them with the necessary arms. Thus, they feared, the people would be stripped of their ability to defend themselves against a powerful, over-reaching federal government. The debates of the founding era demonstrate that the second of the first ten amendments to the Constitution was included in order to preserve the efficacy of the state militias for the people’s defense – not to ensure an individual right to possess weapons. Specifically, the amendment was enacted to guarantee that the people would be able to maintain an effective state fighting force – that they would have the right to bear arms in the service of the state.

Historical Background of the Constitution and Bill of Rights

A significant motivation for the American colonists’ break from Britain was a distrust of the standing army maintained by the Crown on American shores. Nevertheless, many other newly independent Americans expressed the need to strengthen the federal fighting force, even in peacetime. During the brief period in which the Articles of Confederation were in effect, from 1781-1789, relatively weak federal authority existed, particularly as related to military matters. The bulwark of the national defense was the state militias, which bodies the states could voluntarily contribute to the services of the Confederation. The states retained the sole power to arm and otherwise to maintain their respective militias.

It is highly significant that prior to the enactment of the Constitution, the prevailing understanding as expressed in the governing charter then in effect was that the responsibility of arming their militias belonged to the states, not the federal government and not the individual militiamen. It was this function of the states, albeit no longer an exclusive one after the Constitution was adopted, that the Anti-Federalists attempted to preserve, through the enactment of the Second Amendment, in order to ensure that the militias would be effective.

Many leaders of the Revolution expressed concern that as the Continental Army disbanded following the cessation of hostilities with England, the various state militias were inadequate to provide for the common defense due to their poor training and equipment. The establishment of a national armed force was one of the primary reasons that the Constitutional Convention in 1787 was convened. The issue pervaded the convention’s debates. In Virginia Governor Edmund Randolph’s opening speech at the convention – in which he suggested that the body reject the Articles of Confederation entirely in favor of a new constitution, rather than merely revise them – cited military reform as a principal reason for strengthening the federal charter: “The confederation produced no security against foreign invasion … neither militia nor [state] draughts being fit for defence on such occasions.” Randolph also “observed that the Militia were every where neglected by the State Legislatures, the members of which courted popularity too much to enforce a proper discipline”. Other delegates to the Convention shared this view. Influential South Carolinian Charles Pinckney, for instance, maintained that a stronger federal government was necessary principally so as to maintain “a real military force”. The compromise that the convention eventually reached, which granted the federal government the dominant control over the national defense, led ultimately to the enactment of the counter-balancing Second Amendment.

The minutes of the proceedings of the Constitutional Convention reveal that the delegates to the convention devoted substantial efforts to determining the proper balance between state and federal control of military matters. Despite the general view that “standing armies are dangerous to liberty” (Alexander Hamilton, Federalist #29), and over the objection of some Anti-Federalists, the delegates to the convention agreed that a national army was “potentially dangerous” but “necessary”. Thus, Article I of the proposed constitution granted Congress the authority to establish a “National Army” and Article II established the President as commander-in-chief of that army.

The delegates at Philadelphia also provided for the strengthening of the state militias, in part to provide a check on the new national army. “As the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.” (James Madison). Under the compromise reached by the delegates, the militias were strengthened by the grant to Congress of substantial responsibility for their management, although they remained essentially state entities. On the one hand, the Constitution granted Congress the power to prescribe methods of organizing, arming and disciplining the state militias. On the other, the states expressly retained the power to appoint militia officers and provide the militiamen with their training, in accordance with Congressional dictates, if any.

The provision that most troubled the Anti-Federalists, and that prompted the most strident calls for amendment to the proposed constitution, was the one that authorized Congress to provide arms to the militias. The disagreement among the delegates arose not over whether Congress should be able to arm the militias at all, but over whether that power should be exclusive or concurrent with a state power to provide such arms – as well as over how other responsibilities for the militias should be distributed between the state and federal governments.

Federalists defended the compromise that was reached, which greatly increased federal involvement in the management of the militias, in part by arguing that stronger state militias would provide an important counterbalance to the new national army. In an effort to persuade the nation at large to ratify the proposed constitution, both Hamilton and Madison in The Federalist Papers pointed out that the state militias might even be called upon to resist the federal army should that body become oppressive. For instance, in Federalist No. 46, Madison argued:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger… Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.

In sum, what the debates held at the constitutional convention make clear, as well as the compromise that resulted, is that the balance of military power between the states and the federal government, although now an anachronistic subject foreign to our mode of thinking, was, at the time of the founding, a preeminent and much-debated question.

Anti-Federalist Objections and the Ratification Debates

The Anti-Federalists sought to ensure that the people of the several states would enjoy the protection of effective state militias so that their new-found liberties would be preserved. To accomplish this purpose, they sought to change, or at the least, to clarify, the nature of the proposed balance of military power between the state and federal governments. Despite the arguments advanced by Hamilton, Madison, and others, federal control over state militias remained one of the central objections to the new charter on the part of Anti-Federalists.

In particular, if the federal Congress were permitted to “organize, arm, and discipline” the militia, opponents of the Constitution contended, then Congress would have the implied power to disarm the state militias and thus the people as well. One of the principal arguments against ratification of the new Constitution was that it would take away from the states the right to arm the members of its militias, and thus could deprive the people of an effective counterforce to the new national army. Without an armed militia, the argument went, the people would be bereft of arms. For instance, Patrick Henry, a leading Anti-Federalist at the Virginia ratifying convention, attacked the grant of power that permitted Congress to arm the militias:

By this [provision], sir, you see that [congressional] control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither – this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous …

George Mason’s concerns were similar; he predicted that Congress would “neglect [the militia], and let them perish, in order to have a pretence of establishing a standing army”. The Anti-Federalists viewed the state militias as providing the only true opportunity for the people to bear arms. Luther Martin of Maryland’s alarmist rhetoric was typical of those who complained that the new Constitution jeopardized the people’s freedom because it deprived them of effective state militias and thus of their means of self-defense. Martin stated:

It was urged [at Philadelphia] that, if after having retained to the general government the great powers already granted, and among those, that of raising and keeping up regular troops without limitations, the power over the militia should be taken away from the States, and also given to the general government, it ought to be considered as the last coup de grace to the State governments; … and that every State in the Union ought to reject such a system with indignation, since, if the general government should attempt to oppress and enslave them, they could not have any possible means of self-defense …

[Nota bene: The staunchest Anti-Federalists argued that, without an organized and well-armed militia, an armed populace would have no defense against government tyranny. None argued that an assumed individual right to own and possess firearms for hunting and self-defense was sufficient to stave off the force of a tyrannical government – every argument stipulated that only state militias could protect against tyranny and that it was necessary for the states to retain the right to arm their own militias (not to rely on privately-owned weapons) in order for The People to retain a defense against tyranny. – RR]

The Anti-Federalist concern was that if Congress possessed exclusive power to arm the militia, the people would be incapable of resisting federal tyranny. Although Federalists, like Madison, responded that “the power [to arm the militia] is concurrent, and not exclusive”, the Anti-Federalists remained adamant. From the perspective of history, the Anti-Federalists’ worries that the new national government would permit the state militia to atrophy through neglect may seem to be inconsequential, because we have become so accustomed to the provision of defense being essentially a federal function, and so few of us remain concerned with any right of the people to take up arms against the federal government. Nevertheless, such arguments were central to the Anti-Federalist critique of the proposed new government.

Despite the Anti-Federalist arguments regarding the dangers of the distribution of powers with respect to state militias, and the effect upon the people’s ability to provide for their own defense, it soon became clear that the requisite number of states would ratify the new Constitution. Once it became apparent that ratification was likely, Anti-Federalists shifted their efforts from defeating the Constitution to securing amendments, to be adopted almost simultaneously, that would render the new system more to their liking.

Six of the state ratifying conventions adopted petitions urging that the newly established federal government enact a series of constitutional amendments, many of which became a part of the Bill of Rights. Four of those six state conventions included proposed amendments related to the militia power: New York, Virginia, Rhode Island, and North Carolina all proposed amendments similar in wording to the Second Amendment in its final form. Ratification debates from those states demonstrate that the proposed amendments had nothing to do with an individual right to possess arms, whether for personal or other use. Indeed, the ratification debates were almost entirely – but not completely – devoid of any mention of an individual right to own weapons. Rather, the proposed amendments were the result of concerns expressed in the various ratifying conventions – similar to those expressed at the Constitutional Convention itself – regarding the “definition of the respective powers of two levels of government” over the militia, and particularly over whether states would have the authority to arm the militias.

One of the strongest attacks on the proposed treatment of the militia in the Constitution was delivered by George Mason at the Virginia ratifying convention:

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless – by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. … Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.

Mason, like other Anti-Federalists, feared that the neglect of the state militia would lead to the oppression of the people, because without an effective militia the people would be defenseless, and thus he urged that the people’s right to an effective militia be secured by an amendment to the new Constitution.

He, like the others, saw the people’s right to self-defense exclusively in terms of the maintenance of a strong militia. Thus, the Anti-Federalists worried that the federal government would deprive the militia of its arms, not that it would take personal weapons from individual citizens. In order to meet that concern, Mason proposed an amendment similar in wording to what became the Second Amendment. He believed that the amendment would guarantee the people a militia that the state would be free to arm and thus render effective. He justified it as a protection for the people against tyranny and oppression by the federal government:

But we need not give [the federal government] 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 profession. 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. I consider and fear the natural propensity of rulers to oppress the people. I wish only to prevent them from doing evil. By these amendments I would give necessary powers, but no unnecessary power. If the clause stands as it is now, it will take from the state legislatures what divine Providence has given to every individual – the means of self-defence. Unless it be moderated in some degree, it will ruin us …

In short, to the extent that the ratification debates concerned firearms at all, the discussion related to the importance of ensuring that effective state militias be maintained, such militias being considered essential to the preservation of the people’s freedom. Those who deemed the Constitution inadequate for this purpose, absent some amendment, emphasized the importance of the states’ being afforded the right to arm their own militias, thus ensuring the people’s right to maintain a military force for their self-defense.

There were only a few isolated voices that sought to establish an individual right to possess arms, and alone among the 13 colonies, New Hampshire, by a majority vote of the delegates to its ratifying convention, recommended a proposed amendment to the Constitution explicitly establishing a personal right to possess arms: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” (Proposal 12 of the New Hampshire State Convention, June 21, 1788). The New Hampshire proposal is significant not only because it was substantially different from the proposals to emerge from the various other state conventions (which in turn were quite similar to that ultimately enacted as the Second Amendment), but also because it suggests that an amendment establishing an individual right to bear arms would have been worded quite differently from the Second Amendment.

In no other state did a proposal to establish an individual right to possess arms gain significant support. For instance, while one member of the Pennsylvania ratifying convention vociferously urged the inclusion of such a proposal in the recommendations made by that body to the First Congress, his views, like those of another few elsewhere who called for the establishment of such a right, were soundly rejected. As two commentators have observed, “the failure of Pennsylvania’s one man ‘minority’ merely accentuates the fact that opinion favoring a personal right to arms independent of the militia remained highly marginal in state conventions outside of New Hampshire.” (Uviller & Merkel).

In sum, a careful review of the ratification debates demonstrates beyond question that opponents of the new Constitution sought amendment of the Militia Clauses in order to preserve the people’s right to maintain an effective military force for their self-defense, and not to afford individuals a constitutional right to possess weapons.

The First Congress and the Second Amendment

By the conclusion of the process by which the Constitution was ratified, there were already countless proposals for altering the new governing charter; the Virginia convention alone offered forty. Madison, who was responsible for many of the compromises reached at the Constitutional Convention, as well as for many of The Federalist Papers, represented Virginia in the First Congress, which met in New York in April, 1789. He deftly pre-empted Anti-Federalist efforts to change fundamentally the new Constitution by introducing twelve proposed amendments soon after the new legislature convened. Madison was unenthusiastic about the idea of upsetting the delicate balances achieved by the delegates in Philadelphia by importing new concepts into the document. He sought to ensure that the amendment process left the “structure and stamina of the Govt. as little touched as possible” (letter from James Madison to Edmund Randolph, June 15, 1789). The amendments Madison proposed sought to eliminate ambiguities in the document that had been ratified, or to enumerate principles that he believed were implicit within it.

The debates of the First Congress regarding Madison’s proposed Second Amendment, like the debates at the Constitution’s ratifying conventions, support the view that the amendment was designed to ensure that the people retained the right to maintain effective state militias, the members of which could be armed by the states as well as by the federal government. Otherwise, the anti-Federalists feared, the federal government could, by inaction, disarm the state militias (and thus deprive the people of the right to bear arms). No one in the First Congress was concerned, however, that federal marshals might go house-to-house taking away muskets and swords from the man on the street or on the farm. Notably, there is not a single statement in the congressional debate about the proposed amendment that indicates that any congressman contemplated that it would establish an individual right to possess a weapon.

Moreover, in other public fora, some of the framers explicitly disparaged the idea of creating an individual right to personal arms. For instance, in a highly influential treatise, John Adams ridiculed the concept of such a right, asserting that the general availability of arms would “demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man – it is a dissolution of the government.”

Equally important, almost all of the discussion in the First Congress about the proposed amendment related to the conscientious objector provision, which, as we noted earlier, was ultimately removed. The fact that the overwhelming majority of the debate regarding the proposed Second Amendment related to the conscientious objector provision demonstrates that the congressmen who adopted the amendment understood that it was concerned with the subject of state militias. A right not to bear arms due to conscientious objection can only mean a right not to be compelled to carry arms that the government seeks to make one bear – to perform military service that one is unwilling to perform. There is no possible relevance of the term “conscientious objection” to a constitutional amendment guaranteeing a private right to possess firearms. Thus, if the Second Amendment was in fact designed to establish an individual right, the debate over the conscientious objector provision would have been entirely purposeless.

In sum, our review of the historical record regarding the enactment of the Second Amendment reveals that the amendment was adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms. The militias, in turn, were viewed as critical to preserving the integrity of the states within the newly structured national government as well as to ensuring the freedom of the people from federal tyranny. Properly read, the historical record relating to the Second Amendment leaves little doubt as to its intended scope and effect.

Text, History, and Precedent All Support the Collective Rights View of the Amendment.

After conducting our analysis of the meaning of the words employed in the amendment’s two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendment’s purpose was to ensure the maintenance of effective state militias, and the amendment’s operative clause establishes that this objective was to be attained by preserving the right of the people to “bear arms” – to carry weapons in conjunction with their service in the militia. To resolve any remaining uncertainty, we carefully examined the historical circumstances surrounding the adoption of the amendment. Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias – in which the people could exercise their right to “bear arms” – be ensured. The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Accordingly, we are persuaded that we were correct that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment.

by Robert Riversong: may be reproduced only with attribution for non-commercial purposes and a link to this page
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: