The Right to Bear Arms?

Edward J. Dodson

[September 2011]

Was it the original intent of the Framers that owning firearms is a fundamental right of each citizen?

Living in the modern United States has its challenges. But, then, the challenges have always been considerable. During the first two and a half centuries following the earliest settlement at Jamestown, Virginia, the North American continent held constant danger. Survival required the expert use of weapons. From time to time, the colonials were pressed to form into militia units to defend their communities from external attack by the warriors of indigenous tribes and their European military allies. They came with their rifles and powder and lead balls. First, all of the tribes occupying the lands along the Atlantic coast were either pushed west or annihilated. During the late 1750s the French pressed south, with Huron and other allies, across the Great Lakes into Hudson River and Ohio River valleys. Often, the colonial militia fought them on their own. Britain sent its armies to defeat Montcalm and take control of Canada. William Johnson, who had come to the Hudson Valley as a young man from Ireland, who built an active trading business with the area's tribes and who became an adopted chief of the Mohawks, lead the colonial militia to important victories that opened the way to Britain's conquest of North America.

When conservatives in the British Parliament and the King's council decided the colonials ought to be taxed to pay for Britain's military expenses in North America, thousands among an armed citizenry finally arose to fight for independence -- or to maintain the empire. Their survival, their opportunity to choose a political destiny, depended to an astounding extent on the rifles and pistols they possessed and had learned to use from childhood.

After eight years of fighting, elected representatives of the victorious -- and ostensibly sovereign States -- signed Articles of Confederation. They governed themselves and cooperated loosely for the next decade, until meetings planned to amend the Articles and work out other difficulties evolved into a full-scale convention to design a new Constitution. Just as with the war for independence from the British empire, the people were greatly divided over the effort by self-selected leaders to press for a stronger form of national government.After long and bitter debate, each of the States eventually ratified the new Constitution. Already, however, the feeling of liberation the European-Americans had was joined by fears of a new despotism and cynicism best expressed by Thomas Jefferson's famous phrase: "That government governs best which governs least." With a wild frontier to conquer Americans were not about to relinquish their weapons.

Ratification of the new Constitution occurred only because the Framers promised they would also add to the Constitution a series of amendments -- a Bill of Rights. As drafted by James Madison, the Second Amendment to the Constitution read:

"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."

Today, there is great controversy over the original intent of the Framers. Clearly, Madison satisfied strong Quaker opposition by declaring that no citizen could be forced to serve in the military. The language above suggests, however, that a conscientious objector would escape military service only by finding a willing replacement.

In the large towns and growing cities along the Atlantic coast, the people no longer had much reason to bear arms on a daily basis. The community leaders increasingly found it difficult to find enough volunteers to fill militia companies. Life on the frontier remained dangerous, and having one's rifle close at hand still meant the difference between life and death. The British were providing arms to the tribes now fighting to retain control of the Ohio River Valley, and there were few regular army officers and companies around for protection. The people on the frontier took for granted their right to keep and bear arms and to form into militia companies whenever circumstances demanded they do so. It never occurred to them to ask for permission from either the Governor of their State or the President in Washington, D.C.

One of the first seriously militant attempts to assert the right of citizens to defend their liberty against the incursions of the State occurred in the early 1790s in the western counties of Pennsylvania. During 1791 the Congress had seen fit to pass an excise tax on whiskey, with limited success at enforcement over the next few years. Then, in 1794 a federal marshal was sent to serve indictments to offending farmers. Nearly forty men -- most members of the local militia -- responded by picking up their rifles and confronted the revenue inspector at his home near Pittsburgh. The inspector had a small force to protect him, and he ordered them to open fire on the men. Several were wounded, one killed. By nightfall the area's settlers had gathered a force of five hundred men. Another fight occurred at the home of the revenue inspector, although he had departed. A major from Fort Pitt and eleven regular soldiers were waiting for the settler, and second brief fight occurred. The soldiers were momentarily captured, then released. The next day, the settlers issued a call for the militia to meet in Pittsburgh and some six thousand mustered with the intent of marching on the government in Philadelphia.

President George Washington responded by getting one of the justices of the Supreme Court to authorize raising Federal militia to respond to the settlers. George Washington and Alexander Hamilton joined the force at Carlisle, Pennsylvania and opened negotiations with the rebellious settlers. At the Federal show of force most of the settlers voted to accept the government's terms. The idea of disarming the settlers never entered the minds of the Federal authorities. The year 1791 was also the year the Congress assigned to a commitee made up of a representative from each state the task of drafting a Bill of Rights to be added to the Constitution. The final wording of Amendment II reads:

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.

In a sense not generally appreciated, the wording of this Amendment is remarkably visionary. The link between "the right of the people to keep and bear arms" and the need for "a well regulated Militia" is inseparable. The expectation is that when citizens become members of the Militia they will serve armed with their personal weapons. A condition for serving, in fact, is ownership of an appropriate weapon. Looking at the societal context for passage of the Amendment, Earl Warren, Chief Justiceof the United States, wrote in 1972 [see: A Republic If You Can Keep It, Quadrangle Books, p. 126] as follows:

The courts have pointed out that the Second Amendment links the "right to keep and bear arms" with a "well regulated Militia." At the time of the writing of the Constitution, the states constituted, for the most part, a frontier society on the edge of the unknown. Some of the states required every male to have a gun, a certain amount of ammunition and equipment for service in the militia in times of community danger. It was with honor and pride that young men equipped themselves for such service. The Founding Fathers had implicit faith in a militia because their experiences with the British had made standing armies abhorrent to them. As a consequence, through the Second Amendment, they guaranteed the right of the states to maintain the militia and accorded the people the right to bear arms for that purpose. Additionally, society tacitly acknowledged that, in wild frontier country, guns were needed in hunting for food and protection against marauders, whether man or best. Such weapons were almost always long guns. ...

A sizeable minority of citizens living in these United States continue to have a healthy fear of standing armies and the quasi-military agencies attached to the Federal and State governments. Periodically, the actions of people who have obtained positions of authority and responsibility in local and state police agencies, as well as in the Federal Bureau of Investigation, have been overtly criminal. The rights of innocent citizens have been violated by these authorities. The checks and balances inherent in our system does not prevent frequent injustices from being perpetrated in the name of law and order. Ours is still a very dangerous society, and not all the danger comes from criminal organizations, street gangs or people who simply are devoid of moral principles and respect for the persons or property of others.

Other elements of life in parts of the North American continent have not changed all that much, either. Although the overwhelming majority of people live in or around urban centers, there are still millions of people living in semi-wild frontier country, who use rifles to hunt for food and for protection against marauders. Their need to bear arms is practical. Yet, on the other side of equation, the easy access to hand guns has resulted in the rapid escalation of domestic arguments into deadly confrontations, in the frequent use of even more exotic automatic weapons in robberies and, in particular, the trafficing in illegal drugs. Violence seems to be such an every day event in many of our communities that the very idea of community is stressed to the breaking point.

The debate over the Second Amendment, what it means and what the original intent of the Framers was continues. So do the killings. There is a degree of insanity in it all. Only a greater degree of justice, of equality of opportunity, of adoption of univeral moral principles holds the promise of bringing about a ceasefire. I hope I live long enough to see this happen.