Intentions, Meanings and Interpretations of the
Second Amendment and Gun Control
By: Ellen Rita Heidrick

As the American colonists experienced first hand with English rule of the American colonies, a government unlimited in power may not protect the rights of the populace. The colonists sought independence from the absolute rule of the English crown and an atmosphere suitable for the exercise of their God-given inalienable rights. After declaring the independence of the nation, defeating British troops, and escaping tyrannical English rule in the American Revolution, the Founding Fathers formulated the Constitution. Its purpose was to establish a limited republican federal government in America and to protect the people from an oppressive government. The Fathers wanted to insure the safety of their children’s rights and that of generations to come from the tyranny they had experienced.

The framers of the Constitution--James Madison, Alexander Hamilton, and George Madison, to name a few--needed to ensure the security of the rights of the people from encroachment by the government before many states would ratify the new constitution. Thus, they formulated the Bill of Rights, which became the first ten amendments to the Constitution, to protect the rights of the people. The right to keep and bear arms was secured by the second amendment of the Bill of Rights which states: "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."¹  This right was considered by the people to be important and by some to be the most important right included in the Bill of Rights.

The framers thought the possession of arms by the citizens of the country was necessary to the preservation of a republican form of government and the security of the state. The Founding Fathers intended for the federal government of America to be republican, thus making the citizens the most powerful political force in the country. To ensure a republic, the framers guaranteed that the people possessed the means to defend the republic and their rights. These men believed that the right of the people to keep and bear arms ensured that the government would not encroach on their rights because of the potential of armed resistance by the people to such tyranny, thus ensuring the security of a free state. The right to keep and bear arms was regarded by the Founding Fathers, and is still regarded today by many, as an inherent and inalienable right, not only guaranteed by the Second Amendment, but one that has always existed.

Despite the intention of the Framers and the protection afforded by the second amendment, Congress has passed gun-control laws that restrict the types of guns Americans may possess, require registration of guns by the people, and require permits for carrying guns, especially handguns. These gun-control laws have spurred much debate across the nation, often fueled by gun-related crimes and especially in recent years, gun-related deaths of children, such as the high-school students shot in 1998 and 1999. The debate over gun-control and the second amendment centers on the extent to which the amendment was intended to limit the ability of the government to regulate, restrict, or prohibit private ownership of firearms. Gun-control laws which purport to make citizens safer, divide the country into two camps: those who support such laws and believe restrictions on gun ownership do not violate the Constitution, and those who contend gun-control laws violate the Constitution and threaten Americans’ second amendment rights.

Proponents of gun-control laws generally argue that the second amendment was meant to protect the collective rights of the states to maintain militia units.²  They stress the amendment’s militia clause, arguing that the purpose of the amendment was to insure that state militias would be maintained against the encroachment of the government. This view, the "exclusively states’ right" or the "collective rights view," as it is often called, asserts that the amendment was intended to respond to Anti-federalist opposition to the provisions in Article I, section 8 of the Constitution, authorizing a standing army and granting the federal government various powers over the state militias.³  Those who hold the states’ right view argue that the framers’ concern was with the concentration of military power in the hands of the federal government.

Besides maintaining a states’ right view, proponents of gun-controls also argue that the amendment does not guarantee individual’s rights to own guns and thus, gun controls are constitutional. The American Civil Liberties Union for example, is an organization that has supported gun-controls and has interpreted the second amendment to refer to the protection of states’ militias rather that an individual right. Those proponents also argue that the second amendment is outdated and irrelevant to modern American life. In addition, they assert that gun-controls are necessary to eradicate high crime rates in modern America and do not violate the second amendment.

Opponents of gun-control laws believe that the right to keep and bear arms is not a states’ right but an individual right and that it is necessary for the people to protect themselves: protect their rights from government encroachment, and protect the freedom of the state from the rise of a tyrant in America and foreign invasion. Opponents emphasize the second clause of the amendment, arguing that the framers not only intended an individual right, a "right of the people," but also a militia consisting of the entire able-bodied male population, using their privately-owned weapons for the defense of the state.⁴  Advocates of this view contend that the militia clause is complimentary and amplifying, rather than qualifying the right to keep arms. Some who maintain this view hold that gun controls infringe on citizens’ rights to own the arms necessary for protecting individual rights from an oppressive government and, thus, violate the second amendment. They contend that the second amendment, like other guaranteed rights, was intended to secure citizens’ protection from an oppressive government.

The evidence put forward in this paper attempts to prove that the framers intended for the right to keep and bear arms as a way to protect the people from an oppressive government. The words of the Founding Fathers, political philosophers and commentators, and opinions of the courts of the United States explain that the amendment was intended by the framers to protect an individual right, rather than a states’ right. Examples used here also prove that gun-controls have been used in the past by tyrannical governments to oppress groups of people and violate their rights. In addition, an effort is made hereto suggest what the framers would think of today’s gun-control laws.

To Preserve Liberty and the Republic: The Meaning of the Second Amendment and the Framers Intentions

The second amendment protects "the right of the people to keep and bear arms." The protection of this right is necessary for U.S. citizens to protect their rights from an oppressive government and to keep their republican government from becoming tyrannical. The framers intended the people to possess the means necessary for them to defend their rights, liberty and their republic from the rise of a tyrant or from foreign invasion.

Don B. Kates, Jr., one of the most cited modern commentators on the second amendment and author of "Handgun Prohibition and the Original Meaning of the Second Amendment" published in the Michigan Law Review, wrote about the framers’ interpretation of the right to bear arms and their intentions for the second amendment. He said:

The Founding Fathers were necessarily influenced by the fact that the entire corpus of republican philosophy known to them took English and classical history as a lesson that popular possession of arms was vital to the preservation of liberty and a republican form of government.⁵ The Founding Fathers learned from the history of the Greek city-states and the Roman republic the necessity and importance of the private possession of arms by the free populace for the survival of a republican government. Kates also wrote: The same thought that held arms ownership vital to republican citizenship also warned the Framers that to be disarmed by government was tantamount to being enslaved by it; the possession of arms was the vital prerequisite to the right to resist tyranny. The Founders learned from Aristotle that a basic characteristic of tyrants was ‘misuse of the people; hence they deprive them of arms.’⁶ The Founding Fathers also learned from their own experiences that arms possession was critical to their liberty.

The British crown tried to usurp the rebellion of the American colonist by depriving them of their rights. The British first tried to take away the arms of Americans to make them powerless against the crown. George Mason said at Virginia’s convention on the ratification of the U.S. Constitution:

When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them: but that they should not do it openly, but weaken them, and let them sink gradually.⁷ The plan to which George Mason referred was put into action in April, 1775. After the Boston Tea Party, the conflict between British rule and American rebellion came to a head in Lexington and Concord.

British troops were sent to Lexington and Concord to take the arms from the stockpiled reserves of the colonists. General Thomas Gage, commander and chief of the British army in America, received orders on April 14, 1775 to march to Lexington and Concord, arrest rebel leaders Samuel Adams and John Hancock, and destroy the military supplies assembled at Concord.⁸  John Hancock headed the Committee of Safety which had stockpiled weapons and organized militia volunteers in preparation for a conflict with British troops. Patriots in Boston heard of Gage’s movements and sent out riders, Paul Revere included, to warn the rebels. When Gage and the British troops reached Lexington to take the arms from the American rebels they were met by about 70 armed militia men in formation on the village green.⁹  The rest is history.

The American Revolution added an appreciation of the right to bear arms in the minds of Americans. The Revolution began with rebellion of armed citizens. The privately-equipped militia successfully challenged and defeated British rule in America. The image of privately armed citizens defeating a tyrannical government to preserve liberty, freedom and the rights of the people earned a special place in the hearts of Americans and is emblazoned in the history of the United States.

The Revolution taught the Founding Fathers and generations of Americans that only armed citizens can guarantee freedom and liberty. Richard Henry Lee, a Virginian politician, said: "To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them."¹⁰  James Harrington, an influential man at the time of the ratification of the Constitution, asserted that the right to bear arms is essential to the liberty of people. He said:

Preservation of republican liberty requires independence, which rests primarily on possession of adequate property to make men free from coercion by employers or landlords. But widespread ownership of land is not sufficient. These independent yeomen should also bear arms.¹¹ The framers intended to preserve the rights of Americans by including them in the Bill of Rights and by including among them the right to defend those rights with arms.

The Founding Fathers learned that guns in the hands of citizens ensures a republican form of government. The preservation of such government was the basis on which the framers formulated the Constitution’s separation of powers, the checks and balances placed on the federal government’s powers, and the protection of the people’s liberty and rights from the encroachment of the government. The framers intended the second amendment to be an extra security feature in the Constitution against the formation of an oppressive government.

With arms, the people would have the power to preserve the republic and protect their rights. Mary E. Becker, essayist and author of the article "Politics of Women’s Wrongs and the Bill of Rights: A Bicentennial Perspective," wrote:

The drafters of the Constitution saw the ability of armed citizens to oppose the national government as an important check on the misuse of federal governmental power. As the framers of the Second Amendment realized ‘ultimate political power’ lies ‘with those who control the means of force.’¹² Sanford Levinson, author of the often cited essay on the second amendment entitled "The Embarrassing Second Amendment," noted that "...a state facing a totally disarmed population is in a far better position, for good or for ill, to suppress popular demonstrations and uprisings than one that must calculate the possibilities of its soldiers and officials being injured or killed."¹³   Levinson argued that "the ultimate ‘checking value’ in a republican polity is the ability of an armed populace, presumptively motivated by a shared commitment to the common good, to resist government tyranny." Without arms, the people are vulnerable to the oppression of law enforcers and the government. The framers knew this.

The authors of the second amendment saw the usefulness of the threat of armed citizens against an encroaching oppressive government. They received some of this wisdom from political philosophers and theorists like Sir William Blackstone. Blackstone, in his Commentaries on the Laws of England, stated that possession of arms was "one of the five auxiliary rights of English subjects without which their primary rights could not be maintained."¹⁵   Blackstone’s Commentaries state:

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree and such as are allowed by law. Which is also declared by the same statute... and is indeed a public allowance, under due restrictions, of the natural right of resistance, and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.¹⁶ The framers themselves were knowledgeable about the workings of government and the potential threat an unchecked government might have on the people’s liberty.

Distrust of the government played a fundamental role in the formation of the Constitution. In the late 1700s, Alexander Hamilton commented on the benefit of a healthy distrust of the government. In Federalist Paper No. 25, he wrote about trusting the government: "For it is a truth, which the experience of all ages has attested, that the people are commonly most in danger when the means of injuring their rights are in the possession of those whom they entertain the least suspicion."¹⁷   Distrusting the government to protect the people’s rights is what prompted the framers to add the Bill of Rights to the Constitution.

The framers believed that the federal government they formed must have a system of checks and balances so that the republic would persevere and the peoples’ rights would be protected. Joseph Story, nineteenth century author of Commentaries on the Constitution (1833), considered the citizens’ right to keep and bear arms "as palladium of the liberties of a republic; since it offers a strong moral check against usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."¹⁸    James Madison, the author of the second amendment and another constitutional author, wrote that the possession of arms by the citizens is the ultimate check on a tyrannical government. In Federalist Paper No. 46, Madison wrote the following:

..the advantage of being armed which the Americans posses 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.¹⁹ The framers were wary of the potential threat the newly-formed federal government posed to the freedom of the people and the security of the free state. The framers feared the government becoming too powerful and encroaching on the peoples’ rights and threatening the freedom of the whole country.

The first sign that a government is becoming tyrannical is when it institutes a disarmament policy. James Madison wrote in Federalist No. 46 that the government to fear was that which is "afraid to trust the people with arms."²⁰   Disarming American citizens, whether systematically or all at once, was considered by the framers to be a grave threat to the peoples’ liberty, as the people would have no arms with which to defend themselves from an encroaching government or to overthrow a government that attempted to disarm them. The U.S. Supreme Court has also recognized the importance of armed citizens.

In Aymette vs. the State (1840), Justice J. Green delivered the opinion of the Court and stated what class of weaponry citizens were allowed to own and why the right of the people to keep and bear arms was protected . He said for the Court:

As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defense so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. ... The right to keep and bear arms for the common defense is a great political right. It respects the citizens on the one hand and the rulers on the other.²¹ The Court decided in Aymette that a concealed bowie knife, which Aymette was convicted for carrying, was not protected by the second amendment from restrictions passed by the Tennessee legislature because it was not of the sort useful to the militia and was instead, the type used by criminals. The Aymette decision set the precedent that was followed when the Court ruled for the last time on the second amendment in United States v. Miller (1938).²²

Modern commentaries have also seen the advantage of armed citizens to defend the freedom of the state and the peoples’ liberties. Robert J. Cottrol, author of Gun Control and the Constitution: Sources and Explorations on the Second Amendment and another oft-cited modern commentator on the second amendment, wrote "the Second Amendment, like the other provisions of the Bill of Rights, was designed to prevent the newly created federal government from encroaching on rights that were then enjoyed."²³  Theodore Schroeder, author of Free Speech for Radicals and an early twentieth century developer of the theory of freedom of speech, wrote:

[t]he obvious import [of the constitutional guarantee to carry arms], is to promote a state of preparedness for self-defense even against the invasions of government, because only governments have ever disarmed any considerable class of people as a means toward their enslavement.²⁴ Don B. Kates, Jr., also noted in his essay, "Handgun Prohibition and the Original Meaning of the Second Amendment," the "theme of personal arms possession as both a hallmark and the ultimate guarantee of personal liberty" which "appears...in the writings of Cicero, Sidney, Locke, Trenchard, Rousseau, Sir Walter Raleigh, Blackstone and Nedham."²⁵   He also commented that "authoritarian philosophers...recommend[ed] arms prohibitions as the surest security for absolutism."²⁶   The modern commentators and the framers have noted that firearms in the hands of the people protect the people’s liberty from the encroachment of the government and the government from becoming tyrannical.

A Fundamental and Individual Right

The rights of the people guaranteed by the Bill of Rights were rights that existed prior to the formulation of the Constitution and were fundamental to free people. These rights were considered by the Federalists--like James Madison and Alexander Hamilton--to be so fundamental and obviously protected from the encroachment of the government that no person of their time could consider them in jeopardy. Thus, the writers of the Constitution did not feel the need to put them into the Constitution. Nevertheless, the Federalists conceded to the demands that the rights of the people be added to the Constitution and that the obvious and fundamental protections be put into writing.

These rights were not granted by the government but "exist independent of the very government against which the Bill of Rights is asserted."²⁷   In fact, the Bill of Rights would better explain its purpose if it had been called the "Bill of Prohibitions," for the document grants no rights but prohibits the federal and, through the Fourteenth Amendment, the states from infringing on the rights of the people.²⁸   Author John F. McManusexpressed the purpose of the Bill of Rights in these words:

The Second Amendment, like its counterparts in the ‘Bill of Rights,’ grants no rights whatsoever. The right of each person to publish, speak, and own a firearm existed prior to the adoption of the Constitution, and all federal limitations on these rights, whether constructed by Congress or dictated from on high by a judge are totally illicit...the federal government has no legitimate authority to limit firearms ownership (and a long list of other rights), simply because there is nothing in the Constitution granting it such power.²⁹ Thus, the framers intended to protect the rights of the people and not create new rights for the people or the states.

The second amendment in particular was designed to protect the peoples’ individual right to possess arms. James Madison, who the Federalists put forward to draft the Bill of Rights, wrote in his personal notes that the amendments "relate first to private rights."³⁰   Madison knew his contemporaries would interpret the amendment as protecting an individual right. James Monroe included the "right to keep and bear arms" among the basic "human rights" he proposed to add to the Constitution.³¹ Despite the intention of the framers, proponents of gun-control laws and those who take the states’ rights position refute the words of the framers.

States’ rights proponents assert that the framers created the right of the states to maintain a militia independent from the federal government in the second amendment. Thus, states’ rights proponents assert, the second amendment guarantees a right to the states and no right to individuals. This interpretation of the amendment is not consistent with the intentions of the framers or the meaning of the text.

The text of the second amendment was analyzed and interpreted to protect a previously-existing individual right by Roy Coppernud, a retired journalist, professor at the University of Southern California, and expert on American usage of the English language.³²  Coppernud sits on the panels of the American Heritage Dictionary and the Merriam Webster’s Usage Dictionary and is the author of the book on usage, American Usage and Style: The Consensus.³³   Coppernud, in his expert opinion on American usage, said about the text of the Second Amendment the following:

The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people: it simply makes a positive statement with respect to a right of the people.... The right is not granted by the amendment; its existence is assumed... .³⁴ Despite the interpretation of the meaning of the amendment’s text by a prominent expert on American usage and the framers’ words on the amendment, those who hold the states’ rights view still maintain that the amendment did not guarantee an individual right but created a states’ right.

The states’ rights interpretation also cannot be upheld when compared to the amendment’s own words. The second amendment’s phrase "the right of the people to keep and bear Arms" proclaims an individual right.³⁵  The phrase ‘the right of the people’ appears in other provisions of the Bill of Rights, always denoting rights pertaining to individuals. The first and fourth amendments, for example, are worded identically to the second, and are interpreted to protect individual rights. The first amendment states: "Congress shall make no law respecting...the right of the people peaceably to assemble, and to petition the Government for redress of grievances."³⁶  The fourth amendment states: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated...."³⁷  No one can successfully argue that the first and fourth amendments assert a states’ right. These amendments clearly state ‘the right of the people,’ just as the Second Amendment does.

States’ rights proponents argue that the amendment asserts a states’ right to form a militia. Yet, the word ‘state’ is only mentioned in the amendment to assert the necessity of the right of the people to keep and bear arms so that the people have the firearms necessary to form a militia and ensure the security of the free state. The amendment says nothing of a states’ right, but plainly describes an individual right: ‘the right of the people.’

None of the ten amendments in the Bill of Rights guarantee a states’ right. The only amendment in the Bill of Rights that comes close is the tenth, which refers only to the power "reserved to the States" and clearly distinguishes ‘the states’ from ‘the people.’³⁸  In United States v. Verdigo-Urquidez, Chief Justice Rehnquist for the U.S. Supreme Court, addressing to whom the fourth and second amendments pertain, ruled:

‘[T]he 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.³⁹ The states’ rights view ignores the second amendment’s words ‘the people’ and only concentrates on the opening clause of the amendment that mentions the militia.

The Militia

In the eighteenth century, the militia was synonymous with the entire adult male citizenry. The colonies adopted the English tradition of armed citizens serving as the local police force and defense from foreign and domestic invasion. Colonial law required that every household possess arms and that every male of military age carry his arms with the militia in a military emergency. The 1792 Congress, after enacting the second amendment, "defined the militia to include the entire ‘able-bodied military-aged male citizenry’ of the United States and required each of them to own his own firearm."⁴⁰

According to the framers, it is the individuals who make up the militia and who possess the arms of the militia. The Federal Farmer, one of the most important Anti-Federalist publications, referred to the "‘militia, when properly formed, [as] in fact the people themselves.’"⁴¹   The Founders guaranteed that the militia would have arms by guaranteeing that individuals (who made up the militia) could possess arms.

The U.S. Supreme Court has interpreted the second amendment as guaranteeing an individual right and ensuring the arms of the militia, even though it has only a few limited rulings on this amendment. In 1857, Chief Justice Roger B. Taney ruled in Dred Scott v. Sanford, while addressing the citizenship of free blacks, that the right to keep and bear arms was included among the rights of citizens.⁴²   In 1938, the Supreme Court issued its most recent ruling on the Second Amendment in United States v. Miller. Justice James C. McReynolds’ discussion of the militia, in the majority opinion he delivered in Miller, indicates that the Court saw a clear relationship between the individual right and the maintenance of the militia.

McReynolds’ decision in Miller relied on the antebellum Tennessee case, Aymette v. The State, which allowed the state to restrict the carrying of weapons not suited for militia or military use.⁴³   In Aymette, the Court upheld Tennessee’s restrictions on the carrying of concealed bowie knives because that weapon was not suitable for use in the militia or for military defense. As previously discussed, a bowie knife would not serve a suitable military purpose and would only serve for the intimidation of law-abiding citizens. A well-regulated militia, the Court recognized, is only armed with the privately owned firearms of the individuals who made up the militia.

In Miller, the Court upheld the regulation of a sawed-off shotgun because the weapon did not serve a purpose for the militia or military and was used by criminals in the 1930s. Jack Miller and Frank Layton were indicted for violating the National Firearms Act of June 26, 1934, which "required registration, police permission and ... a prohibitive tax for firearms that were deemed gangster weapons - automatic weapons, sawed-off rifles and shotguns and silencers."⁴⁴    Miller argued that the restriction violated the Second Amendment to the U.S. Constitution. The Miller Court concluded that the restriction on the possession of a sawed-off shot gun was constitutional since such a weapon was not used by the militia or military. McReynolds noted: "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."⁴⁵   The Court ruled that the possession of a sawed-off shotgun was not included among the weapons the American people possess to arm the militia.

The Court’s ruling aside, McReynolds provided an excellent definition of the militia. McReynolds, on the militia, stated in part:

...the militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military defense.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.⁴⁶ This definition of the militia clearly upholds an individual right to bear arms, for without such the militia would not have arms. The states’ rights position fails to overcome this judicial reason.

The second amendment’s protection of the individual right to bear arms is what makes the militia possible, but the right is not solely determined by the militia’s need for arms. Roy Coppernud interpreted the second amendment’s text to include protection of an individual right to arms not limited to or determined by the need for arms for the militia. Coppernud said in part:

The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia. ...The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of free state. The right to keep and bear arms is deemed unconditional by the entire sentence.⁴⁷ Coppernud’s interpretation of the Second Amendment challenges the states’ rights position and upholds the individual right position.

States’ rights proponents argue that the second amendment guarantees that states have the right to form a militia. They claim that because the National Guard has been organized, a well-regulated militia has been satisfyingly formed and ordinary citizens do not need to possess arms for the defense of the country, as they were required during colonial times. Today an organized army provides for the military needs of the country. Ordinary citizens are not called upon to bear their privately-owned arms and defend the country or put down insurrections inside America’s borders, or at least not since the Revolution. States’ rights proponents also use this fact to argue that guns are no longer needed in the hands of individual citizens (civilians). The framers would disagree.

It is true, the Congress raises the army for the defense of the country. Ordinary citizens have not been called upon to bear their own arms and defend the country in the last century. Today, ordinary citizens do not report to the National Guard when the Guard is called upon to put down insurrections inside and out of America’s borders. In the world of the Constitution’s framers, a standing army was not a desirable situation, given their experience with the British regular army.

The National Guard and the United States Army are now federally organized and represent the federal government while the framers intended the militia mentioned in the second amendment to constitute ordinary civilians. Experience at the time of the framers showed that standing armies were the tools of oppressive governments. The framers wanted ordinary citizens to have the right, protected by the second amendment, to organize an unofficial militia and rise up against the federal government, if it threatens the security of the free state, the republican form of government, or the peoples’ rights and liberty. The militia is, and was intended by the framers to be, distinct from any federally-organized army and militia so that the people would have recourse against a tyrannical government, if it should rise in America, like the framers had when they and their contemporaries rose up against the tyranny of British rule.

The framers feared that without guns the people would not have the arms necessary to defend their rights and liberty. The second amendment was added to the Bill of Rights by the framers to alleviate that fear. Because the peoples’ right to possess arms is protected by the second amendment they, we, can have the arms needed to defend our rights and republic if a tyrannical government were to rise in America. American citizens need to fear for the security of the free state and their rights if the American government were to outlaw gun-ownership by the people and confiscate firearms from the people.

What happens when a government takes arms from the people’s hands?

History has shown that anti-gun policies of a government can lead to confiscation of guns and the oppression of the populace. Stephen Halbrook, an author and attorney who has studied and written on anti-gun policies implemented by Adolf Hitler’s Nazi regime, noted that gun registration policies make it "easy for a tyrannical government to confiscate firearms and make prey of its subjects."⁴⁸   The policies of the Nazi regime are an excellent example of the atrocities that can happen when a government uses gun-control policies to take away the arms of the population.

Seventeen-year-old Herschel Grynszpan shot Ernst vom Rath, a junior counselor at the German embassy in Paris on November 7, 1938, one day before the Beer Hall Putsch, a historical event for the Nazis.⁴⁹   The shooting was in revenge for the Polish Jews, including Herschel’s family, who were kicked out of Germany and forced into Poland, beaten and left to die by the German police. In retaliation for Herschel’s crime, the Kristallnacht was an officially organized attack on the Jews.

The infamous Kristallnacht, the Night of the Broken Glass, was proceeded by the confiscation of arms held by Jews. The Nazi police had taken precautions to ensure that the Jews could not fight back during their rampage. On November 8, the police began removing weapons from Jewish households. No Jews were allowed to possess weapons, especially firearms. As Joseph Story said in 1840, "One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is by disarming the people, and making it an offense to keep arms."⁵⁰   In Berlin alone the Nazi police confiscated 2,569 daggers and swords, 1,720 firearms, and 20,000 rounds of ammunition.⁵¹   The German Secret Service (the "SS" ) easily found which Jews had weapons and confiscate them. The Weimar Republic had passed a firearm law in1928 requiring registration of all firearms and extensive police records on gun owners.⁵²

The unarmed Jews made perfect victims for the terror the Nazis advanced upon them. The SS, under orders from the highest German offices, attacked Jewish homes and shops, burned synagogues and arrested all the Jews that could be found and put them in concentration camps. At least 236 died and many more were arrested during the Kristallnacht.⁵³

The Nazis inflicted terror and atrocities during Kristallnacht and the Holocaust with the help, at least in part, of the gun-control registration laws. In his speech on June 14, 1788, George Mason said, "To disarm the people..[is] the best and most effectual way to enslave them."⁵⁴   Revealing his agenda for gun-control, Hitler said on April 11, 1942, "The most foolish mistake we could possibly make would be to permit the conquered Eastern peoples to have arms. History teaches that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by doing so."⁵⁵   The heinous crimes perpetuated toward the Jews during Kristallnacht and the Holocaust are lessons from history that should never be forgotten. "Those who will not learn the lessons of history are condemned to repeat them," observed George Santayana, American historian and essayist.⁵⁶

History provides examples of the tyranny and persecution that occurs when total gun control is enforced. In 1929, the Soviet Union established gun control. Millions of defenseless dissidents were then exterminated.⁵⁷   Vladimir Ilyich Lenin said, "A system of licensing and registration is the perfect device to deny gun ownership to the Bourgeoisie."⁵⁸  The lessons gun control has taught us over history should be those which the gun-control debate embraces.

The Gun Control Debate

America is faced with questions about whether or not to impose gun-control and which anti-gun policies are constitutional. The high-crime rate in America and especially the death of children and teenagers by firearms have plunged the country into a heated debate over the issue. The country pays special attention to the shootings of students in high schools and cries for more restrictions on guns and even prohibition.⁵⁹  The second amendment is stuck in the middle of such debates. The amendment’s meaning is sometimes lost or forgotten in the dispute over which policies are constitutional and effective against crime. What would the framers think of contemporary gun control?

Gun control comes in many forms. Registration requires all those who own guns to register them with the proper authorities. Licensing requires people to obtain permission from the authorities, whether they be local police or federal officials, to possess or sell a firearm, especially handguns. Market restrictions limit the types and number of guns sold and to whom they are sold. Prohibition restricts the sale and possession of certain types of firearms. The Brady Handgun Control Act of 1993 is a mix of gun-control policies which restricts the sale and possession of guns to those who do not have the proper license.⁶⁰   Each type of gun-control policy is intended to stop crime or at least lower the crime rate.

Such gun-control laws, however, do not have the desired effect on criminal use of guns. These laws mostly inhibit the legitimate use of firearms by law abiding citizens. That is the argument B. Bruce-Briggs, an oft-quoted commentator on the gun-control debate, asserted in "The Great American Gun War," an essay on gun-controls.⁶¹   He claims that registration of weapons has little or no purpose and is inconvenient. Likewise, Bruce-Briggs says that "...licensing systems are a screen not against criminals but against honest citizens... ."⁶²   Criminals are not the sort of people who apply for handgun permits or register their firearms. Bruce-Briggs also argued that market restrictions on the sale of guns hike up the price to legitimate consumers, but do not affect criminals, lunatics or terrorists who purchase their weapons in illegal sales.

Gun-control laws are passed with the anticipated affect of reducing crime, yet they do not measurably reduce crime. The criminals still have guns and use them in crimes, but the law abiding citizens are restricted in their legitimate possession and use of firearms with the passing of each gun-control law. Supporters of gun-control laws argue that the restriction of the legal possession, sale and purchasing of firearms is necessary for crime to be reduced and for the country to be safe. They claim that the good outweighs the evil.

Supporters of gun-control laws maintain that registration, banning assault rifles and handguns, and legislation like the Brady Bill will stop the flow of guns into illegal use. Raymond W. Kelly, undersecretary for enforcement at the U.S. Treasury Department and a former police commissioner of New York City, is a gun-control law supporter who agrees with those claims. In an excerpt from a speech he gave at an FBI symposium in Quantico, Virginia, February 16, 1993, he asserted that the country has become "too accustomed to, and accepting of, crime and violence."⁶³   Kelly maintained that "the vehicles to help us regain some ground over violent crime are...gun control and... community policing."⁶⁴   Like gun-control supporters, Kelly believes that registration, banning assault rifles and requiring federal permits for handguns will reduce crime. He said: "National registration will help us [law enforcement] trace how guns that are supposed to be sold legally end up in illegal hands."⁶⁵   Kelly claimed that gun control laws are critical to rid America of crime and free Americans from fear.

Kelly did not address some critical details in his advocacy of gun-control laws. He did not mention that criminals don’t always buy the guns they want to use in crimes, they also steal them. National registration, which Kelly strongly advocated, is just another constraint on law-abiding citizens’ legal acquisition of firearms and an excellent tool for law enforcement or the federal government to confiscate firearms from citizens. National registration was used in this way by the Nazis before Kristallnacht. A tyrannical government, though America may not have one, will be well armed with the necessary tools for disarming the populace when national registration and strict gun-control laws are in place. Kelly and gun-control supporters argue that in order to reduce crime all citizens will have to be reduced in the legal acquisition and ownership of firearms.

The framers certainly would not agree with the argument that gun-control laws reduce crime and that law abiding citizens should be reduced in their legitimate uses and possession of firearms to meet that end. Cesare Baccaria, whom Thomas Jefferson and John Adams have quoted, wrote in his book, On Crimes and Punishments (1819), the theory the framers held about gun-control laws. He wrote:

False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are of such a nature. They disarm those only who neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty - so dear to men, so dear to the enlightened legislator - and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.⁶⁶ Gun-control laws have not proven to be an effective deterrent of crime. Criminals will not lawfully purchase guns and do not abide by the gun-control laws. Gun-controls have, however, proven to be an affective method of reducing the type and amount of firearms law-abiding citizens possess, and have proven, historically, to be an excellent method of prohibiting and confiscating firearms.

During the late eighteenth century, gun-controls were implemented in France by a tyrannical government for the supposed purpose of reducing crime. Kates wrote about the situation in France and the framers’ beliefs on gun-control laws. He wrote:

In the French despotism [the framers abhorred], the single most important duty of the police, "protecting" the public security, was effected through enforcing arms prohibitions. Although actually aimed at continuing the subordination of the peasantry, the ostensible reason for the French arms prohibition was to reduce homicide and other violent crime, and so was it rationalized by the French monarchs and their apologists. The Founders gave such arguments short shrift, believing that if a population were actually unfit to possess arms, it was only because of the degradation induced by subjection to the oppression and exploitation of aristocratic and monarchical authoritarianism.⁶⁷ Given the history of gun-control laws aimed at reducing crime, of which the framers were aware and detested, they would not look at the gun-control laws in America today as an effective formula for reducing crime, but as a way for the government to take guns from law-abiding citizens. Given gun-controls’ history of use by oppressive governments to violate the peoples’ liberties and exterminate populations, and track record of leading to total disarmament of a population and confiscation of firearms, as in Nazi Germany and the Soviet Union, it is likely the framers would not endorse gun control.

Conclusion

The framers of the Constitution sought to protect later generations of Americans from the rise of a tyrant. The framers also sought to create a republican government. They added the Bill of Rights to protect the peoples’ rights from the encroachment of the government. With one such right--the right to keep and bear arms-- the framers intended the individual people to possess the means to defend their rights and the republic. Tyrants can not rise, because the people, the same people who constitute the militia, posses the means of force to put them down.

The framers had good reason to believe that arms in the peoples’ hands were needed to protect the people from the government and the republic from tyranny, for history has provided examples of absolute and tyrannical governments which deprived their people of arms in order to oppress the populace. Gun-control methods deprived the Jews in Nazi Germany and dissenters in Soviet Union of arms to defend themselves against infringements on their liberty and extermination. The horrors some populations have faced when their guns have been confiscated are those which the framers feared and why the right of the people to keep and bear arms, a necessity for those people to form a militia and to keep secure a free state, was important enough to be included as the second amendment to the Constitution.

Not since the American Revolution, have American citizens--potential militia members--had to exercise their protected right to keep and bear arms to overthrow a tyrant. Despite claims by extremists, America has not yet experienced a manifested, authentic threat of a tyrannical government. Gun-control laws have limited the types of firearms one can purchase and possess, required permits to carry and licenses to sell guns and required registration of firearms. Confiscation of firearms occurred in California within the past year, where law enforcement confiscated assault rifles. But, overall and despite the constraints on the legitimate ownership of firearms, Americans still have the right to keep and bear arms. The protection of that right, however, dwindles with every constraint and some fear that eventually Americans may be required to hand over their weapons.

When another law outlawing a type of firearm or restricting the sale or purchase of firearms is proposed, the American people are given the excuse by gun-control supporters that they will still be allowed to own guns (their hunting rifles and rabbit guns), just not an assault rifle or an automatic or semi-automatic firearm. Some firearms, the types of weapons gun-control supporters have tried or have already succeeded in banning, are the types of weapons the militia members need to possess in order to be successful against an army led by a tyrannical government, if one should rise. If the American people lose the right to own these types of guns, a tyrannical government could rise in America and the people will not have the necessary weapons to stage a successful defense of their republic and rights.

Law-abiding citizens in America are restricted in their legal possession and purchase of firearms, while gun-control laws have little or no effect on the criminal’s use of firearms. Restrictions on the legitimate acquisition and possession of firearms could inhibit American citizens from organizing a successful militia. The types of weapons the militia can use in the defense of the republic and the people’s rights could make the difference between defeating a tyrannical government and being enslaved by it.
 

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Endnotes

¹ Amendment 2, United States Constitution, James Burns, J. W. Peltason, and Thomas E. Cronin, GOVERNMENT BY THE PEOPLE, (Prentice-Hall, Inc., 1987), 9.

² Kermit L. Hall, The Oxford Companion to the Supreme Court of the United States, (New York: Oxford University Press, 1992), 763.

³ Leonard W. Levy, Kenneth L. Karst and Dennis J. Mahoney, Encyclopedia of the American Constitution, vol. 4. (New York: MacMillan Publishing Company, 1986), 1639.

⁴ Burns, 9.

⁵ Don B. Kates, Jr., "Handgun Prohibition and the Original Meaning of the Second Amendment." Michigan Law Review, November 1983, 221.

⁶ Ibid., 232.

⁷ "Second Amendment Debate and Poll: What did the Founding Fathers intend with the Second Amendment?" April 14, 2000. <www.youdebate.com/DEBATES/SECONDAMENDMENT.HTM>

⁸ David Goldfield, et al The American Journey: A History of the United States. (Upper Saddle River, NJ: Prentice Hall, 1998), 158.

⁹ Ibid.

¹⁰ Kates, 221-222, emphasis added.

¹¹ Sanford Levinson, "The Embarrassing Second Amendment." The Yale Law Journal, 1989, 647.

¹² Geoffrey R. Stone, Richard A. Epstein and Cass R. Sustein, The Bill of Rights in the Modern State, (Chicago: The University of Chicago Press, 1992), 500.

¹³ Levinson, 657.

¹⁴ Ibid., 648.

¹⁵ Robert J. Cottrol, Gun Control and the Constitution: Sources and Explorations on the Second Amendment, (New York: Garland Publishing, Inc., 1994), xiii.

¹⁶ Volume 1 of Blackstone’s Commentaries on the Laws of England 1765, also see Cottrol, xiii.

¹⁷ Federalist Paper No. 25 by Alexander Hamilton, taken from The Federalist Papers, introduced by Charles R. Kesler,(NAL Penguin Inc, 1999), 132.

¹⁸ Levinson, 649.

¹⁹ Federalist Paper No. 46 by James Madison, Kesler, 267.

²⁰ Kates, 228 and Federalist Paper No. 46, supra 38 at 267.

 ²¹Cottrol, 6 and 7.

²² Further discussion of Aymette v. the State (1840) and United States v. Miller (1938) will come later in the paper.

²³ Cottrol, xviii.

²⁴ Levinson, 650.

²⁵ Kates, 233.

²⁶ Ibid.

²⁷ Steven Silver, "Dishonesty and Deception: The ACLU and the Second Amendment." (Firearms Sentinel, Fall/Winter 1995), from Gun Control: Opposing Viewpoints (San Diego, CA: Greenhaven Press, 1997), 81.

²⁸ John F. McManus, "Missing the Mark on Gun Ownership." The New American, July 19, 1999, 44.

²⁹ Ibid.

³⁰ 12 Papers of James Madison, taken from "Handgun Prohibition and the Original Meaning of the Second Amendment" by Don B. Kates, Jr. Michigan Law Review. November 1983, 223.

³¹ Kates, 228.

³²At the request of J. Neil Schulman, journalist for the Journal on Firearms and Public Policy, a publication of the Second Amendment Foundation, Coppernud analyzed the text of the Second Amendment.

³³ Roy Coppernud, American Usage and Style: The Consensus, (1981).

³⁴ Opinion of Roy Coppernud, from "The Text of the Second Amendment," by J. Neil Schulman, Journal on Firearms and Public Policy, Summer 1992, printed in Gun Control: Opposing Viewpoints, 89.

³⁵ Amendment 2, U.S. Constitution, emphasis added, Burns, 9.

³⁶ Ibid., Amendment 1, U.S. Constitution.

³⁷ Ibid., Amendment 4, U.S. Constitution.

³⁸ Amendment 10, U.S. Constitution, Burns, 10.

³⁹ United States v. Verdigo-Urquidez, 494 U.S. 259; 110 S. Ct. 1056; 108 L. Ed. 2d (1990), Robert F. Cushman, Cases in Constitutional Law, 8th ed., (Englewood Cliffs, NJ: Prentice Hall, 1994), 248.

⁴⁰ Kates, 216.

⁴¹ Levinson , 647.

⁴² Dred Scott v. Sanford, 19 How, 393; 15 L. Ed. 691 (1857), see also Cushman, 126-131.

⁴³ United States v. Miller (1938) and Aymette v. the State (1840) taken from Robert J. Cottrol’s Gun Control and the Constitution: Sources and Explorations on the Second Amendment, (New York: Garland Publishing, Inc., 1994), 2 and 30.

⁴⁴ Cottrol, xxvi.

⁴⁵ United States v. Miller (1938), from Robert J. Cottrol, 178.

⁴⁶ Ibid., 179.

⁴⁷ Schulman, opinion of Roy Coppernud, 90.

⁴⁸ Robert W. Lee, "Gun Report: Lessons of History," The New American, August 2, 1999, 40.

⁴⁹ G. S. Graber, History of the SS, (New York: David McKay Company, Inc., 1978), 105-106.

⁵⁰ "Second Amendment Debate and Poll: What did the Founding Fathers intend with the Second Amendment?" April 14, 2000, <www.youdebate.com>.

⁵¹Anthony Read and David Fisher, Kristallnacht: The Nazi Night of Terror, (New York: Time Books, 1989), 64.

⁵² Lee, 40.

⁵³ Read, 69.

⁵⁴ "Second Amendment Debate and Poll...".

⁵⁵ Ibid.

⁵⁶ Lee, 40.

⁵⁷ John J. McNight, "Gun Control has Proven Record of Effectiveness," Freedoms’ Alert, July, 2000, 5.

⁵⁸ "Second Amendment Debate and Poll... ."

⁵⁹ The American public cries over the middle-class white suburban teens killed in high-school shootings and seeks retribution, while Hispanic and African-American teens have been killing each other in inner-city schools for decades and no one cares.

⁶⁰ The Brady Handgun Control Act of 1993, 107 Stat. 1536 Public Law 103-159, Nov 30, 1993, 103rd Congress, H.R. 1025, 4814-4724; also Cottrol, 54-64.

⁶¹B. Bruce-Briggs, "The Great American Gun War," The Public Interest, Fall 1976, 36-61, reprinted In Lee Nisbet’s The Gun Control Debate: You Decide, (Buffalo, NY: Prometheus Books, 1990).

⁶² Ibid., 69.

⁶³ Gun Control: Opposing Viewpoints, 141.

⁶⁴ Ibid.

⁶⁵ Ibid., 143.

⁶⁶ Cesera Baccaria, On Crimes and Punishment, (1819), taken from Kates, 234.

⁶⁷ Kates, 233. Kates footnoted his research to include I. Cameroon, Crime and Repression in the Auvergne and the Guyennea 1720-1790, (1982), at 7-8; and, L. Kenneth and J. Anderson, The Gun in America, (1975).
 
 

Bibliography

Primary Sources

Brady Handgun Control Act of 1993, The, 107 Stat, 1536 Public Law 103-159, Nov. 30, 1993, 103rd Congress, H.R. 1025.

Dred Scott v. Sanford, 19 How. 393; 15 L. Ed. 691 (1857).

Kesler, Charles R., The Federalist Papers, Penguin Inc., 1999.

"Quotes on the Right to Bear Arms." www.tuxedo.org>

"Second Amendment Debate and Poll: What did the Founding Fathers intend with the Second Amendment?" April 14, 2000, <www.youdebate.com>.

United States v. Verdigo-Urquidez, 494 U.S. 259; 110 S. Ct. 1056; 108 L. Ed. 2d (1990).
 
 

Secondary Sources

Burns, James, J. W. Peltason, and Thomas E. Cronin, GOVERNMENT BY THE PEOPLE, Prentice Hall, Inc., 1987, a publication of the United States Constitution.*

Bruce-Briggs, B., "The Great American Gun War." The Public Interest, Fall 1976.

Cottrol, Robert J., Gun Control and the Constitution: Sources and Explorations on the Second Amendment, New York: Garland Publishing, Inc., 1994.

Cushman, Robert F., Cases in Constitutional Law, 8th ed., Englewood Cliffs, NJ: Prentice Hall, 1994.

Goldfield, David, et al, The American Journey: A History of the United States, Upper Saddle River, NJ: Prentice Hall, 1998.

Graber, G. S., History of the SS, New York: David McKay Company, Inc., 1978.

Gun Control: Opposing Viewpoints, San Diego, CA: Greenhaven Press, Inc., 1997.

Hall, Kermit L., The Oxford Companion to the Supreme Court of the United States, New York: Oxford University Press, 1992.

Kates, Don B., Jr., "Handgun Prohibition and the Original Meaning of the Second Amendment." Michigan Law Review, November, 1983.

Levinson, Sanford, "The Embarrassing Second Amendment." The Yale Law Journal, 1989.

Lee, Robert W., "Gun Report: Lessons of History." The New American, July 19, 1999.

Levy, Leonard W., Kenneth L. Karst and Dennis J. Mahoney, Encyclopedia of the American Constitution, vol. 4, New York: MacMillan Publishing Company, 1986.

McManus, John F., "Missing the Mark on Gun Ownership." The New American, July 19, 1999.

McNight, John J., "Gun Control Has Proven Record of Effectiveness." Freedoms’ Alert, July, 2000.
 
 

Nisbet, Lee, The Gun Control Debate: You Decide, Buffalo, NY: Prometheus Press, 1990.

Read, Anthony, and David Fisher, Kristallnacht: The Nazi Night Of Terror, New York: Times Books, 1989.

Schulman, J. Neil, "The Text of the Second Amendment." Journal on Firearms and

Public Policy, The Second Amendment Foundation, Summer, 1992.

Silver, Steven, "Dishonesty and Deception: The ACLU and the Second Amendment." Firearms Sentinel, Fall/Winter, 1995.

Stone, Geoffrey R., Richard A. Epstein and Cass R. Sustein. The Bill of Rights in the Modern State, Chicago: The University of Chicago Press, 1992.
 
 

*While the words of the U.S. Constitution are a primary source, the publication of the Constitution is a secondary source.

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