|
On the fundamental right to bear arms and opposing tyranny:
As you probably recall, ratification of the Constitution wasn't a forgone conclusion and when Massachusetts passed theirs with an attached 'request for amendment' most other states followed suit. Massachusetts didn't include any language towards guns or militia with their ratification but Virginia and New York did.
Their part specific to guns/militias read:
Virginia's Requested Amendment
- That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.
Virginia's was an almost word-for-word copy of the Virginia Declaration of Right's passed by the state 11 years earlier. New York's was split into 3 parts and you can see Virginia's influence in the wording.
New York's Requested Amendment
- That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.
- That the militia should not be subject to martial law, except in time of war, rebellion, or insurrection.
- That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power.
James Madison took the proposed amendments from all the states, summarized them, and submitted 20 amendments to Congress. His summarized 2nd amendment 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.
After debate only 12 amendments survived to be sent to the states. When it emerged the wording of the 2nd amendment was cut/rearranged to the one we know today:
- 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.
Context:
Shays' Rebellion was an armed uprising led by former Massachusetts Militiamen and Veterans of the American Revolution which took place between 1786 - 1787. Daniel Shays led several thousand "rebels" to fight against the economic injustices that were facing farmers and agrarian peasants all across America. These farmers were experiencing extreme poverty following the end of the Revolutionary War. All across Massachusetts (and the rest of America) farmers saw their lands foreclosed on in unfair property seizers, and they wanted to fight back, which they did here. They were also trying to fight taxes which were beginning to be levied against them. They fought this in many ways, but among them was closing and obscuring roads so that government agents couldn't reach rural parts of the state. Shays' Rebellion would ultimately be put down, but it startled the gentry who feared further uprisings throughout the United States.
I also like to point out that the naming of this event is really interesting. The people who did this, called themselves Regulators ( modeling off of the North Carolina Regulators
who also fought against economic injustices before the start of the American Revolution.). The idea of Civilian Regulation was a popular idea that sought to end government corruption and stamp out the overwhelming power of the gentry. They believed that if the government wasn't regulating itself on behalf of "We the People", then "the People" had the right to regulate, or take back the government -- to take it back and do what they believed was right. They didn't see themselves as a rebellion, but rather the gentry labeled them as such in order to de-legitimize their cause. The gentry didn't want to call these men "militiamen" or "regulators" for this reason (which they clearly were), but instead, branded them as "rebels" who needed to be stopped.
Veterans like Benjamin Lincoln would raise militias on their own and mounted their own assaults against the "rebels." They call themselves the "the Massachusetts Militia" even though it was the former militias who they were fighting! So as they begin to debate this on the national stage, especially in 1787 at the Constitutional convention, the gentry singled out Daniel Shay (even though there were actually many other leaders), and they said he was crazy and people were only following a demagogue. They hailed The Massachusetts Militia as the victors and saviors and asserted that militias are what will save America in the future against such madness.
Answer:
Although the Constitution is drawn up in 1787, it is not ratified until December of 1791 when the Bill of Rights was finally agreed upon. Whether or not to include the Bill of Rights (and what to include inside it) was a matter of extreme contestation between the Founders and everything within it was deeply fought over.
When we look at the Second Amendment specifically, we should look at a few things before hand. First, by the 1790s, other small rebellions had popped up all over the country. Terry Bouton's article "A Road Closed: Rural Insurgency in Post-Independence Pennsylvania" (The Journal of American History, Vol. 87, No. 3 (Dec., 2000), pp. 855-887) masterfully explains the fighting and rebellion that took place in the rural countrysides of Pennsylvania that mirrored what had happened in Massachusetts with Shays' Rebellion. Simply put, the gentry were terrified that they were losing control of rural America, and as a result they would not be able to seize foreclosed land and collect taxes, which they deeply wanted. Empowering militias to be trained and carry firearms allowed the gentry to call up these men in times of need and suppress these rebellions that were taking place.
Now there was already precedent in existence for protecting militias and their rights to bear arms in many states. Multiple other bills of rights from other states had already protected a militia's right to bear arms (such as Section 13
of Virginia's Declaration of Rights) and many of these states were fighting to have the federal government protect this as well.
Now, look at the very wording of the Second Amendment
. 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.
"A well regulated Militia" is the key phrase. They are referring to the militias led by people like Benjamin Lincoln and his Massachusetts Militia not Shays and his "rebellion". The initial goal was to protect a state's right to call up arms against rebels, not to arm the masses. The Founders feared that in some states (like Rhode Island) that were already being drastically controlled by the poor (rather than the gentry), that local governments would start being able to choose who could keep and bear arms, and that by creating the Second Amendment, the gentry would always have the ability to call up and arm militias in times of need.
Clarification: I also need to stress that this question mentioned Jefferson by name, however he was not a signer of the Constitution, but did certify the adoption of the Bill of Rights in 1792.
Tl;Dr: The second ammendement wasn't passed in spite of Shays' Rebellion, rather it was passed because of Shays' Rebellion.
Note also that the Articles of Confederation include a clause (Article VI, Section 4) that has similar wording to the Second Amendment: "... every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of filed pieces and tents, and a proper quantity of arms, ammunition and camp equipage."
It is a common misconception in regards to the Bill of Rights that as originally written, they were intended to protect the rights of the people from the government. This is not exactly true. In reality, the Bill of Rights was written to curb the abilities of the Federal Government, and allow the States to set their own policies with considerable leeway. The Federal Government, for example, could not pass a law limiting the right to assembly, but a state could. To quote from United State v. Cruikshank, “The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone.”
So what does this tell us about the Second Amendment, circa 1800? On the one hand, the operative clause was supposed to be taken exactly as written “the right of the people to keep and bear arms shall not be infringed" but properly read would add in there "By the Federal Government". On the other however, “A well regulated Militia, being necessary to the security of a free State” does actually mean that the Amendment was written with militia in mind, but not in a way to say that possession was tied to membership in the militia (a silly requirement, since all men between 18 and 45 were anyways). Rather, read it like “The Federal government can’t ban people from owning weapons because it would be oppressive to The States”. It was delegating the regulation of arms to the States, so that they could be assured a certain level of oversight over their militias. There was no reason that, say, 1800s Pennsylvania couldn’t have prohibited everyone from owning a firearm if the legislature so chose (That being said, many states had their own provisions mirroring the Bill of Rights and limiting what the states could regulate as well. The Pennsylvania Constitution, for instance, included a provision stating *“That the people have a right to bear arms for the defence of themselves and the state”. So just because the 2nd Amendment did not protect the right to bear arms on every level should NOT BE TAKEN to imply that it wasn’t nevertheless protected on the state level. Just depended on the state).
And for 200+ years, that’s essentially what the 2nd Amendment meant. In Presser v. Illinois, in 1885, the Supreme Court reaffirmed this fact, writing “But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.”
But in the early 1900s something HUGE happened. The 1925 Supreme Court case Gitlow v. New York ended with the ruling that the Free Speech Clause of the First Amendment applied to the States via the 14th Amendment’s Due Process Clause! Born from this was the process that became known as Incorporation. Slowly, the Bill of Rights began to go through this process and more and more parts of the various Amendments were incorporated against the states. Finally, by the late 60s, aside from some very minor provisions, all that remained unincorporated were the 2nd and 3rd Amendments. Born from this was the assumption by most modern, casual observers, that this was always the case, and thus the assumption that the 2nd Amendment applied to the people in the same way that the 1st Amendment did, which while perhaps a safe assumption, had not yet been verified by the Supreme Court, who did not deign to address this fact in Miller, a Federal case, and the only major 2nd Amendment Ruling of the modern era.
It was only in 2010, in a case known as McDonald v. Chicago, that the right to keep a firearm was found to be an incorporated right by the Supreme Court.
Now, what does this all mean? Well, technically at least, the Founding Fathers didn’t exactly mean the 2nd Amendment to be taken as we read it now. But it isn’t because of the wording. It clearly grants an individual right “to the people”. It is because of the concept of tiered government that was held by the Founding Fathers and applied to all the Amendments, which was turned out totally by the Incorporation Doctrine some 100+ years later. Perhaps it is an unforeseen development to the likes of Washington, Adams, Jefferson, Madison, Hamilton et. al. or maybe they knew they had gotten the ball rolling and envisioned that liberal democracy was heading in that direction. It seems to be that anyone can make whatever argument that they want there, and easily find support for it. But the fact is that it did happen, and it didn’t just affect the 2nd Amendment. It changed the 1st, 3rd, 4th and so one, and is a monumentally important evolution in government and the concept of rights as pertains to the United States and its citizens.
So what does this all mean then, for the TL;DR crowd? The 2nd Amendment, as originally written, was not meant to protect the individual’s absolute right to keep and bear arms, but it ISN’T because the Amendment should be read as not pertaining to the individual, but because it only applied to one level of Government. The flipside is that the 2nd Amendment protects the right to firearms for everyone, but applying it on a state level is a 20th century doctrine only made possible by the 14th Amendment that has resulted in this modern interpretation of the Bill of Rights as a whole.
So to bring it back to the video, the guy in it is pretty wrong in his understanding of the 2nd Amendment as the Founding Fathers wrote it. You simply can't talk about the 2nd Amendment without addressing Incorporation, and ignoring it pretty much invalidates whatever point you are making.
The 2nd amendment wasn't to protect the individual liberty of people against the State, it was to protect the Free State itself. Though protecting against tyranny is how it looks like it works now, the FF never thought of it as a mechanism against the tyranny of a Free State over its people, even though the idea of forcefully regulating a gov't that wouldn't regulate itself was popular among rural people and some States at the time.
|