indicate an individual right.
But yet again, the question comes down to what this
But the point remains that the framers wrote the Second
means today. In 1789 Madison could make the plausible
argument, as he did in FEDERALIST No. 46, that armed citi-
zens could stand against their government. Today, though, the
notion that even the best armed of private citizens can effectively
stand against the military is not realistic.
1 And with the type of
paramilitary organizations around, there is a real question of
whether this is desirable.
Amendment, and the rest of the Bill of Rights, with a clear belief in
its value as a guarantee against a tyrannical national government.
The only question is whether they saw this protection as an indi-
vidual holding his gun alone or with his comrades.
Making the Second Amendment
In 1786, a decade after the DECLARATION OF INDEPENDENCE,
the United States was a loose government under the ARTICLES
OF CONFEDERATION. A year later, in 1787, the Philadelphia
Convention was charged to amend the Articles. But rather than
only amend the Articles, the Convention created a whole new
Two camps emerged after the convention: the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who
3 As discussed above in relation to slavery and guns, much
of the anti-federalists’ opposition to our proposed Constitution had
to do with its lack of listed rights. Only by listing protected rights, the
anti-federalists argued, could the national government not encroach
In answer to anti-federalist arguments, James Madison on June 8,
1789, presented to Congress what ultimately became the Bill of
Rights, including the Second Amendment5:
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’s proposal went through various modifications during the
legislative process, and partisans of the modern gun-control debate
argue the meaning of each legislative point and counterpoint.
September 1789, what became the Second Amendment went to the
ARIZONA ATTORNEY MARCH 2015 54
1. On this point, Lenard Levy, a proponent of the interpretation that the Second Amendment
protects an individual right to bear arms, notes that although “[t]he right to keep and bear
arms still enables citizens to protect themselves against law breakers … it is a feckless means of opposing a legitimate
government.” LEVY at 149. See also TUSHNET at 29 (the
Second Amendment is “not realistic these days to think
of an armed citizenry defending us against an
6. Quoted in Bogus, Hidden History, at 366.
Bogus argues that this allowed Quakers out
of military service in the militias.
Precursors to Madison’s proposal in-
cluded the Pennsylvania Constitution, which
had the phrase “the right to bear arms” but
not a militia clause. LEVY at 135, 142.
John Adams’ MASSACHUSETTS DECLARATION
OF RIGHTS of 1780, also used the phrase
“to keep and bear arms.” LEVY at 143.
8. The Right in the State Courts:
States had their own constitutional provisions on the topic, and
state courts decided cases under their own constitutions. For a survey
of state constitutional provisions guaranteeing the right to bear arms
in various forms, see Eugene Volokh, State Constitutional Rights To
Keep and Bear Arms,
11 TEX. REV. L. & POL. 191 (2006).
Regarding the Second Amendment’s application to the states
today, see Michael Anthony Lawrence, Second Amendment
Incorporation Through the Fourteenth Amendment Privileges or
Immunities and Due Process Clauses,
72 MO. L. REV. 1 (2007) (argu-
ing that the Supreme Court should
recognize the Second Amendment
as applying to the several States
through the 14th Amendment privi-
leges or immunities clause or, alter-
natively, through the due process
clause) and for a counter view, see
David A. Lieber, The Cruikshank
Redemption: The Enduring Rationale
for Excluding the Second Amendment
from the Court’s Modern
Incorporation Doctrine, 95 J. CRIM. L.
& CRIMINOLOGY 1079 (2005).
9. And perhaps fruitlessly. See, e.g.,
Robert A. Creamer, History is not
Enough: Using Contemporary
Justifications for the Right to Keep
and Bear Arms in Interpreting the
45 B.C. L. REV.
905 (2004) (arguing the limits of
any historical approach to the
questions of whether the Second
Amendment protects an individual
or collective right and instead that
contemporary justifications should
determine the question).
For an argument using an
empirical study of contemporary
word usage in the press on what
the Second Amendment’s words
meant at the time, see Kozuskanich
at 413, asserting that the meaning
of “bear arms” was military, not
2. St. George Tucker also published a first
Second Amendment commentary. Tucker annotated Sir William Blackstone’s COMMENTARIES
ON THE LAWS OF ENGLAND and was the leading
Jeffersonian constitutional theorist of his day. In
footnotes 40 and 41 he distinguished the difference between the English right that Blackstone
had described and the more extensive American
right to bear arms: “The right of the people to
keep and bear arms shall not be infringed.
Amendments to C. U. S. Art. 4, and this without any
qualification as to their condition or degree, as is
the case in the British government.” Further he wrote
“Whoever examines the forest, and game laws in the British
code, will readily perceive that the right of keeping arms is effectually
taken away from the people of England.” Tucker notes that “In America we may reasonably
hope that the people will never cease to regard the right of keeping and bearing arms as
the surest pledge of their liberty.” At 414 n. 3.
3. This conflict was accentuated by the recent news of violent revolution in France with
similar anti-federal tensions.
The Second Amendment
4. See Prequel and Preamble: Did They Forget to Pay the Bill? regarding the Bill of
Rights and Second Amendment as a limit on federal government rather than a grant of individual
rights, see Bogus, Hidden History, at 369.
5. Madison intended his Bill of Rights to be
inserted into the existing Constitution. The right
to keep and bear arms was not to be inserted in
Article I, Section 8, which specifies Congress’s
power over the militia. Rather, it was to fit in
Article I, Section 9, between clauses 3 and 4,
following the existing prohibitions on suspension
of habeas corpus, bills of attainder, and ex post
facto laws. This may show that the Second
amendment is an individual right such as
habeas corpus, etc.
7. Regarding the redraft of amendment to present form, see Bogus,
Hidden History, at 369–71.
On July 21, 1789, Madison’s draft amendments went to a select
committee for review. On July 28, the committee returned a reworded
Second Amendment, which was read into the Journal on August 17:
A well regulated militia, composed of the body of the people, being the
best security of a free State, the right of the people to keep and bear
arms shall not be infringed; but no person religiously scrupulous shall be
compelled to bear arms.
Quoted in LEVY at 144–45.
On August 24, the House sent the following for the Senate’s review:
A well regulated militia, composed of the body of the people, being the
best security of a free state, the right of the people to keep and bear
arms shall not be infringed; but no one religiously scrupulous of bearing
arms shall be compelled to render military service in person.
The Senate changed the semicolon in the religious exemption portion to a
comma and then removed the militia definition and the conscientious objector
A well regulated militia, being the best security of a free state, the right
of the people to keep and bear arms, shall not be infringed.
On September 9, the Senate sent its final
version to the House:
A well regulated militia being the security of
a free state, the right of the people to keep and
bear arms shall not be infringed.
On Sept. 21, 1789, the House accepted the
changes but added the words “necessary to”:
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.
This version went to the states to become
the Second Amendment. Academic careers are
made arguing the relative meaning of these different versions to the modern gun control debate.
St. George Tucker