Sunday Book Review: The Founders’ Second Amendment

Posted by: Phineas on March 24, 2013 at 3:50 pm

**Posted by Phineas

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The right to carry a weapon and the efforts to restrict that right, the latter euphemistically called “gun control,” have been much in the news lately. In the wake of horrific mass-killings at an elementary school and a movie theater, the liberal left in America (and other people genuinely appalled at what happened) have called for new restrictions on the kinds of firearms people are allowed to have. Strenuous efforts were made in the federal Senate to reinstate a ban on so-called “assault weapons,” while the states of Colorado and New York have recently passed highly restrictive new firearms laws.

Central to this debate (more of a screaming argument, really) has been the Second Amendment to the Constitution of the United States, which 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.

Since the Constitution and the Bill of Rights are documents meant to limit the power of government, a central question has been “What does the amendment mean, and what does it allow the government to do?”

One would think the question would be an easy one, the phrase “shall not be infringed” being quite clear, but things are no longer so simple. Advocates of strict gun control have variously argued that the Second Amendment refers to a group right, not one held by individuals; that it refers to the right to bear arms solely while serving in a militia, not to have them in one’s home; that the right is limited only to hunting and other sporting uses, thus allowing the government to regulate firearms “not necessary” to that; that the frontier no longer exists, so there’s no need for militia-style defense; and that the progress of technology has made weapons too dangerous for individual use, thus rendering the amendment obsolete and non-operative.

Defenders of the right to bear arms, on the other hand, not only point to the plain text of the amendment, but argue that one must look to the experiences of the founding generation at the time of the amendment’s writing and how they understood the precise words they used in it and other areas of our core documents. In other words, one must consider their original intent.

Stephen A. Halbrook’s “The Founders’ Second Amendment: Origins of the Right to Bear Arms” (hereafter “TFSA”) provides an invaluable contribution to the “originalist” argument in defense of the right to keep and bear arms. Halbrook explains his intention thus:

This work seeks to present the views of the Founders who actually created the Second Amendment. It is based on their own words as found in newspapers, correspondence, debates, and resolutions. Generous quotations from the Founders are used to allow them to speak for themselves, thereby avoiding the appearance of re-characterization of their views.

The “Founders” were the generation of Americans in the eighteenth century who suffered in the final stages of British colonialism, fought the Revolution and won independence, debated and adopted the Constitution and Bill of Rights, and established the republic. The members of that generation passed away by the early nineteenth century, but their constitutional legacy is, if not immortal, a singular triumph in the history of human freedom. (Kindle edition, beginning at location 175)

Halbrook covers the roughly 60 years from 1768 (the British military occupation of Boston) to 1826 (when Adams and Jefferson died) and the Founders thinking on the right to keep and bear arms in great detail, from the colonists’ original assertion of their rights as Englishmen through the writing of the first post-independence state constitutions, the writing and ratification of the U.S. Constitution, and the debate over the Bill of Rights. He cites not only the opinions and arguments of the first-tier, well-remembered Founders (Adams, Jefferson, Madison, &c.), but also of nearly forgotten but influential men such as Tench Coxe and St. George Tucker. Quotations come from both those who supported the ratification of the Constitution (“Federalists”) and those who opposed it (“Anti-Federalists”), as well as those who would support it only with a Bill of Rights, with the right to bear arms being primary among their concerns. To make sure we understand the meanings of the amendment’s words as the Founders’ did, he frequently cites from Noah Webster’s “Compendious Dictionary of the English Language” (1806).

On reading TFSA, several things become clear:

  • That, as the Founders understood it, “rights” vest in individual people and cannot be taken from them, only suppressed through tyranny.
  • That governments have no rights, only powers, and these powers can be restricted by the People.
  • That the keeping (as in “possession of property”) and bearing (“carrying”) of arms covered everything from hunting to self-defense to defense against oppressive government, and that this was a private right of the citizen, not something granted by the State or to be used only when the government permitted it. Indeed, the bearing of arms was considered the hallmark of a free citizen and necessary to the defense of his other rights, while the banning or restriction of arms in Europe was seen as prima facie evidence of oppression.

In no case, Halbrook avers, did anyone among the Founders acknowledge a government “right” to restrict, ban, or confiscate the arms of law-abiding citizens.

TFSA also spends a great deal of time on the question of a “militia” versus a “standing army,” which was a topic of overriding importance at the time, given the Americans’ experience of tyranny and violence at the hands of British regulars. Halbrook argues, to my mind convincingly, that the militia clause of the Second Amendment, “A well regulated Militia, being necessary to the security of a free State,…” is a statement of purpose, not proscription limiting the right to bear arms to militia service. It is an assertion that the People’s right to keep and bear arms cannot be denied because a militia, composed of the body of the People, is essential to enforce the laws, suppress rebellion, defend against invasion, and as a last resort against tyrannical government, that last being something the Founders had very personal experience of in their own lives.

Regarding style, Halbrook’s writing is straightforward and easy to follow. If the book sometimes seems tedious, it is because the author is making a strong effort to be thorough and to bring home the point that early American opinions on the right to bear arms were remarkably consistent. In this case, this thoroughness is a virtue, not a flaw. However, the Kindle version, on which this review is based, is plagued with frequent typographical errors that look to be the result of scanning from the original without a subsequent editing. While very annoying, this does not detract from the book’s immense value in the current debate.

“The Founders’ Second Amendment: Origins of the Right to Bear Arms,” by Stephen Halbrook, is available in both paperback and Kindle format. (Fair disclosure: Buying a copy nets me a few pennies.)

Highly recommended.

(Crossposted at Public Secrets)

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5 Responses to “Sunday Book Review: The Founders’ Second Amendment”

Comments

  1. The Founders did make one teensy mistake, though: they invented the term “states’ rights.” States — political agencies with the pre-indemnified privilege of using force — cannot have rights. They can have authorities and powers; that’s all. In a constitutional order founded on citizen sovereignty, those authorities and powers are defined and limited by being written down and agreed upon by an essential consensus — i.e., an overwhelming majority — of those who’ll have to endure them.

    I doubt today’s political dialogue would be as acrimonious had the Founders been more careful about the use of the word “rights” — and had explained carefully why it must be so.

  2. Anyone debating whether citizens should have the right to keep and bear arms should come down here and live in close proximity to the Mexican border unarmed. I dare you! Why expect us in the southwestern US to be without weapons when the Federal government, through Fast & Furious, has knowingly and irrevocably armed the murderous thugs about whom we are the most vigilant?

  3. Neo says:

    Let’s not forget the 9th amendment …
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  4. Brontefan says:

    The term States’ Rights was thwarted by the passing of the 17th Amendment. Senators were meant to represent the state governments, return annually to account for their votes. When the 17th Amendment changed from the State Assemblies selecting the Senators–to the people voting for them, it upset that delicate balance of power set up by the founding fathers. Women didn’t have the vote in 1913, under Wilson–so it was passed by the male population. It is probably one of the worst moves ever made to threaten our Republic because it literally made the US Senate the most elite club in the world.

  5. H Hazell says:

    The elite “informed and wise” can spout a long nuanced litany of “interpretations” of our Second Amendment. I take a simple approach: “keep” = own and maintain, “bear” = to be on one’s person wherever one’s person may be, “shall not be infringed” = will absolutely not be infringed. Anyone in a profession involving compliance clearly understands that a shall statement establishes an “absolutely will” condition and that when coupled with “not” establishes an “absolutely will not” condition. The entire Bill of Rights should be immune from nuance.