Some of the History Behind the US Second Amendment

Peter B. GiblettStarred Page By Peter B. Giblett, 22nd Jan 2013 | Follow this author | RSS Feed
Posted in Wikinut>Guides>History

Is the Second Amendment an embarrassment or one of the cornerstones of American society? It is certainly an area of open debate today with heartfelt opinions on either side. the intention here is to peel open this part of American society with a little look at the history and thinking of the era in which the words were drafted.

Introduction

The text of the Second Amendment to the US constitution 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.

Truth is, legally, the wording of this amendment is not clear, which should have made it the subject of much judicial wrangling and rulings over the years, instead there is only one message that is focused on by many commentators, "the right to keep and bear arms", yet some argue this is a mis-interpretation of the original intentions. The words on the first segment talk about "a well regulated militia being necessary to the security of a free state", clearly identifying the need for a police and armed forces as being responsible for state security, indeed few would argue against the need for this in a modern society, the biggest questions though have always focused on the personal right to carry arms.

This article looks at some of the historical influences that may may have had bearing for the founding fathers when they drafted the constitution. It should be remembered that many of these honourable gentlemen were lawyers trained in England so the traditions of the old country would have weighed heavily on their minds..

Historical Perspective: American Revolution

Richard Prince suggests that the real reason the Second Amendment was ratified, and why it says 'State' instead of 'Country' was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia's vote at the constitutional convention and seemingly founders Patrick Henry, George Mason, and James Madison were totally clear on that need. In Virginia and other southern states of the union, there were the militia or 'slave patrols' and they were regulated by individual states.

In Georgia, to use one example from before the American revolutionary war of independence, laws were passed in 1755 and 1757 that required plantation owners to organise their white male employees as a branch of the Georgia Militia, and those armed militia units were forced to make regular inspections of all the slave quarters in each county of the state, the law even required armed militia members to keep a keen eye out for slaves who may be planning uprisings or to escape.

Thomas Jefferson's first draft for what became the Second Amendment had said: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person". Madison apparently demanded the word 'country' be changed to 'state' to bring control of the militias under the remit of individual states rather that at the federal level.

When the Constitution was written, there were two major strands of concern here: slave rebellions and native attacks, each was seen as an essential reason for individuals to bear arms in that day.

According to David Vandercoy of Valparaiso University (in 1994) the Second Amendment has been described as "the most embarrassing provision of the Bill of Rights" because of the confusion that existed about whether the right is granted to the state or to the individual, he also points out that eighteenth-century legal commentators frequently discussed the evils of standing armies, indeed one major English lawyer, William Blackstone, once observed that "professional soldiers endangered liberty", his proposition being that it was safer to create a temporary militia force to fight wars, which was disbanded in the time of peace, one of the reasons why the English Bill of Rights, in 1689, specifically excluded a permanent army.

George Washington once suggested, "Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained".

One contention is the original intent of the Second Amendment was to protect each individual's right to keep and bear arms, and to guarantee that individuals, acting collectively, could throw off the yoke of any oppressive government which might arise in troubled times, yet to take this interpretation could be stating that the original constitutional guarantees were weak, an argument that seems illogical. Is it possible to understand the original intent of this amendment? We can only do this by looking at the times themselves both in England and in the new country, with its Federalist and Anti-federalist debates.

Historical Perspective: Its English Foundation

An Englishman's obligation to serve in a citizen army is an old proposition, dating back to at least 900 AD, coupled with this obligation to defend the realm was the obligation to provide arms for this purpose, yet this rule only applied to "free men" and at that time the majority of the English were not free being peasants or serfs, living under the rule of feudal lords. The idea of a citizen-army continued to develop through to the Tudor period, indeed Henry VIII decreed that fathers must purchase longbows for sons between seven and fourteen years of age and teach them to shoot every Sunday, indeed the statute is in theory still law today.

Perhaps one of the most influential precursors was the English Capitalist Revolution itself with a war between parliamentary forces and those of the King, the end result of which broke the chains of the old feudal system and setup the modern capitalist economy. After the 1640's the remainder of the 17th century brought about massive change in how society was run. During this time there was a delicate balance of power between parliament and the monarchy, the eventual supremacy of parliament led to the implementation of the Bill of Rights upon the ascension of William and Mary to the throne and new freedoms across the country. The English had been able to possess individual arms for centuries, but again the 1689 act limited their use to self defence.

Frontier Territories

During 1607 the English established their first permanent settlement in North America at Jamestown, and from that time until the inclusion of Arizona, Alaska, and Hawaii as states it is argued that the country had many frontier territories contained within its borders, indeed it is the dangerous nature of this frontier land, which promoted the need for a local militia from time to time in order to protect the lands of those staking a claim. Prior to the American Revolutionary war the overall duty to protect citizens of this ever growing territory fell to the British Army and of course the American Colonies presented the British Army with a very large logistics problem and their primary role was actually protecting the colonies from claims of other nations, such as France or Spain, rather than the needs of the people in protecting their individual homes and families.

This is where raising a local volunteer militia helped, this meant at the outbreak of any hostilities, a settlement’s government called out their local militia and a means of protecting its local citizens, but it is important to remember that these forces operated under strict control of the civilian authorities in each state, and many of the militia units supported the regulars in the British Army when needed to fight specific campaigns. Another distinction would be funding - militias were locally funded whereas the British Army was funded from London and to perform the duties assigned to local militia groups would have required extra funding.

During the American Revolution many of these militia units supported George Washington's Continental Army, indeed Washington had his military history commanding a local militia in Virginia.

Politics and Thinking of the Founding Fathers

English republican views, from the century before, and the building of the frontier territories would certainly have profoundly influenced the views of the Founding Fathers, both Federalists, being those promoting a strong central government, and Anti-federalists, those believing that liberties including the right of self-rule would be protected best by preservation of local autonomy, agreed that arms and liberty were inextricably linked.

In relation to a proposal to allow Congress the power to raise armies, it seems that much of the debate focused on how to avoid the dangers of a standing army, just as occurred a century before in England. The solution adopted was two-fold initially, Congress would have the power to raise an army but no appropriation of money for that use could be for more than a two year period, it was felt that as the people controlled the House of Representatives and the Senate, and Congress controlled the purse, the people were given an effective check against the dangers of a standing army. A further check against the dangers of a standing army was provided by the existence of states militia forces. This is all about implementing checks and balances.

Farmer Richard Henry Lee, author of "Letters from the Federal Farmer" saw evil in Congress's power to raise an army, whilst he understood the need to provide for the common defence but believed that additional checks were essential, he proposed requiring two-thirds consent in Congress before a standing army could be raised.

Another Antifederalist, George Mason, asserted that history had demonstrated that the most effective way to enslave a people is to disarm them.

Federalists, supporting the Constitution as drafted, did not dispute the premise that governmental tyranny was the primary evil that people had to guard against. Noah Webster argued that the proposed Constitution provided adequate guarantees to check the dangers of any standing army. James Madison argued further that the proposed Constitution offered sufficient guarantees against despotism by its checks and balances, the real deterrent to governmental abuse was the armed population.

Today we are only able to analyse the documents of this era, it is not possible to talk to the people of this era yet the truth is that much of the thinking would never have been written down and can never be available to us in the twenty first century and of course some of the words were certainly the result of compromise after protracted debate.

Today?

What would happen today if an armed group sought to throw off the yoke of an oppressive government in our troubled times?

The answer to this question could certainly be an article of its own right, truth is every idea has its supporters and opponents, even vehement ones, and we tend to use words rather that armed insurrection to succeed.

Not Living in 1791

Writer Michael Benton makes the point that "It is easy to get caught up in the rhetoric of organizations like the National Rifle Association" their focus is of-course on the later segment of the amendment's words, the “right of the people to keep and bear arms” and that gun control supporters "are just as far off point, as the amendment does afford citizens the right to own a gun at the federal level" and that any "state walks a fine line when they attempt to limit that right".

Benton further points out that "both groups fail to understand is we do not live in 1791 anymore nor is our society some utopia... Guns and gun related violence exist in our society today." In reality the Founding Fathers never considered the constitution to be cast in stone and they certainly did not consider the Bill of Rights to remain static for more than two hundred years, the truth is society has developed and so must laws the USA was founded upon.

Just a look at the later development of human rights across the planet will show that there are new ideas at play in the world today and Sanford Levinson from Austin School of Law states in The Embarrassing Second Amendment (originally published in Yale Law Journal, Volume 99) "put mildly, the Second Amendment is not at the forefront of constitutional discussion... is not taken seriously by most scholars". It is this writers opinion that this area of law needs much more understanding and thought, truth is few court cases have ever tested the limits of this constitutional amendment.

About the Author

Peter B. Giblett has been a senior manager in the business world for over 20 years, then studied law at TVU - London to obtain his LLB(Hons) and subsequently in 2002 qualified as a barrister at the historic Inns of Court School of Law in London, today he remains a nonpracticing barrister and consults on business matters and lives in Canada. This page is provided for information only and does not constitute legal advice.

Other related pages include:

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Comments

author avatar Stella Mitchell
22nd Jan 2013 (#)

Extremely interesting to read Peter , but my understanding of this weighty subject is not sufficient to make a further comment.
Bless you
Stella

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author avatar Steve Kinsman
23rd Jan 2013 (#)

This is a brilliant article Peter.Thom Hartman in an article on alternet.org last week made a strong case that the 2nd Amendment was added to the Bill of Rights to protect slavery. Great star page, beautifully researched. Kudos to you.

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author avatar M G Singh
24th Jan 2013 (#)

What a wonderful post, I loved reading it.

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author avatar Sivaramakrishnan A
24th Jan 2013 (#)

A great treatise, Peter. I feel it is like who will bell the cat? The majority will rather have the police to look after internal security than be bothered about having the right to keep and bear arms. But it is blown out of proportion and become a sensitive and emotional issue; reason and logic are the obvious casualties! siva

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author avatar Terry Trainor
7th Feb 2013 (#)

Great piece,

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author avatar Judy Ellen
11th Feb 2013 (#)

I agree with Siva!! Thank you for this in depth piece on the Second Amendment. I agree that we must look at the history of this amendment to fully understand what position to take on gun control. There are too many extremist out there using this Amendment to insist that assault weapons should not be banned. I personally see no need for every citizen to possess assault weapons. Some extremist also think that if our government outlaws assault weapons then all guns will eventually be outlawed. We are very privileged and blessed to have someone as intelligent and educated as you to learn from Peter!! Every article you write is a masterpiece!!

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author avatar Peter B. Giblett
12th Feb 2013 (#)

I doubt everything I write is a masterpiece, but I do try.

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