Part 1 of 2
Many people will state that we cannot know the intentions of the framers. Not just people like ourselves, but people within the Legal Profession itself: Scholars, Judges and Attorneys. This is only true if one disregards the writings of many of the founders and framers of our Governing Documents.
Actually, there are some things we can infer. We can know the intentions of several of the founders, based upon their writings before and after the ratification of the Constitution and the Bill of Rights:
"Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes... 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." Thomas Jefferson, Commonplace Book, 1774-1776, quoting from
On Crimes and Punishment, by criminologist Cesare Beccaria, 1764
"Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." Tench Coxe,
The Pennsylvania Gazette, Feb. 20, 1788.
"Besides the advantage of being armed, which the Americans possess 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." James Madison,
The Federalist, No. 46, 1788.
"[W]hen 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.". . . I ask, who are the militia? They consist now of the whole people, except a few public officers." George Mason, Virginia's U.S. Constitution ratification convention, 1788.
[b"The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."[/b] Samuel Adams, Massachusetts' U.S. Constitution ratification convention, 1788.
"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." Tench Coxe, Federal Gazette, June 18, 1789.
"Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins." Rep. Elbridge Gerry (Co-Author of the 1st Amendment) of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789.
I could go on, for quite some time, with various of the founders quotes and how they saw the meaning the Militia or the Right to keep and bear arms. Those that dismiss the plain meaning of the Second Amendment, will also dismiss these writings. I will however give two legal theories of the meaning of the second. First by Justice Story in his Commentaries and then by Thomas Cooley:
Justice Story said:
"The next amendment is: "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 Story's Familiar Exposition of the Constitution of the United States (1840), the following two sentences are also added:] One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.}
"The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the 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. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights." Justice Joseph Story, Commentaries on the Constitution of the United States (1833)
A mere 40 or so years after the establishment of this nation, Justice Story gives us a profound look at the legal and idealogical thinking of that time.
Thomas M. Cooley said:
"The Constitution. -- By the Second Amendment to the Constitution it is declared that, "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."
"The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
"The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.
"Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.
"What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited." Thomas M. Cooley, General Principles of Constitutional Law (1880)
A hundred years after the founding, the Right contained in the second amendment still stood as clear as when it was written.
Today however, we can look back and see that one of Cooley's warnings have come true. The militia, by Congressional neglect (or design), has all but disappeared from our country.
