On December 15, 1791, the Founding Fathers of the United States of America ratified the first ten amendments to the Constitution of their fecund new nation, via the passage of the Bill of Rights. In doing so, they ensured that certain freedoms which are fundamental to the existence of a free republic could not be violated by a despotic government. Most of these liberties are familiar to all inhabitants of the Western world. Indeed, entitlements to freedom of speech, the free exercise of religion, due process of law, and a speedy, impartial trial can easily be viewed as prosaic by those who have been privileged to possess them assuredly since birth. Citizens of the United Kingdom are ineffably fortunate in this regard, and we would all do well to treasure our unassailable rights rather than considering them frivolously.
For many Britons, however, there is one particular freedom enshrined within the Bill of Rights that is so alien as to be arrantly bewildering.
I refer, of course, to the most distinctly and enduringly American of all freedoms, which has engendered increasingly vituperative disputes between liberals and conservatives in recent years; the right to keep and bear arms. Yet, there is nothing inexplicable about the particular infatuation of proud Americans with firearms. This right, articulated within the Second Amendment, is as glorious and as essential to the American way as any other, for reasons which are wholly comprehensible.
A solitary sentence is all that we must dissect. For the Second Amendment reads as follows: ‘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.’
It must be expressed, immediately and plainly, that the right articulated here is an individual one; every American is guaranteed the right to own a firearm under the Second Amendment. Indeed, for almost two centuries, this was an entirely innocuous statement to make, and a multitudinous array of sources corroborate this fact. In the Federalist No. 46, James Madison, the principle architect of the Constitution, extolled the ‘advantage of being armed’ as one ‘which the Americans possess over the people of any other nation’, while rebuking foreign governments that were ‘afraid to trust the people with arms.’ Moreover, in 1792, Tench Coxe, a Pennsylvania delegate to the Continental Congress, made clear that the American people are ‘confirmed in their right to keep and bear their private arms’ under the Amendment.
Although the Amendment’s reference to a ‘well regulated militia’ may engender the assumption that it applies exclusively to some sort of organised civilian army rather than the citizenry at large, this would be a corruption of the original intent of the Framers. In actuality, the militia consists of all those blessed enough to be American citizens. To that point, perhaps the most lapidary historical definition of the term is contained within the pseudonymous letters of the “Federal Farmer” – a Founder of indeterminate identity – who elucidated that ‘(a) militia, when properly formed, are in fact the people themselves.’
In the late twentieth century, however, a vocal subset of the legal cognoscenti came to argue that the Second Amendment actually bestows a collective right upon each state to arm a militia (specifically, the National Guard) for its defence, rather than solidifying an individual right to gun ownership for every citizen. As we have explored, this is patently ludicrous, and the development of this preposterous contention resulted in the Supreme Court’s decision in the case of District of Columbia v. Heller (2008), which established definitively that the Second Amendment exists to protect an individual right. A more voluminous article than this could be dedicated purely to the myriad of historical sources which demonstrate the veracity of the “standard” individual right interpretation, but I will mention only one other before advancing to the next stage of this piece.
Specifically, Nelson Lund’s comprehensive 1996 essay, The Past and Future of the Individual’s Right to Arms, contains an especially charming textual argument. As Lund emphasises, the phrase ‘the right of the people’ is used not only in the Second Amendment, but identically in the First and Fourth, to invoke the clear individual rights to peaceable assembly and freedom from unreasonable searches and seizures respectively. To use Lund’s wryly incisive words exactly, the belief ‘that the word ‘people’ in the Second Amendment refers to the state governments requires one to assume that the Framers of the text were unbelievably sloppy in their use of language…. one might just as well go all the way and assume that the Second Amendment uses the word ‘arms’ to mean the upper limbs of the human body.’
Yet, endeavouring to understand the meaning of the Second Amendment is fatuous if one does not also wish to comprehend its purpose.
Fortunately, the answer to the question of why anyone would actually desire to own a firearm, irrespective of their entitlement to do so, can be deciphered with minimal difficulty. Unequivocally, the Second Amendment exists to enshrine what Alexander Hamilton described in The Federalist No. 28 as the ‘original right of self-defence which is paramount to all positive forms of government.’ The notion that one’s right to self-defence is vital and inalienable being, in large part, the product of the Lockean philosophy that underpinned both America’s founding, and the antecedent English Bill of Rights of 1689.
Indeed, the concept of a right to bear arms is not an American invention. Within his Two Treatises on Government, Locke posited that all individuals ‘should have a right to destroy that which threatens (them) with destruction.’ The most obvious connotation here is that, as a matter of sacrosanct principle, I am entitled to defend myself against an assailant who threatens my life or the security of my home. This was embodied, to an extent, within the aforementioned English Bill of Rights, which articulated that Protestants were entitled to possess ‘Arms for their Defence’. The Second Amendment, conversely, preserves this right for all Americans, and facilitates one’s natural right to self-defence through securing his ability to possess a firearm for the protection of both himself and his family. Prior to Locke, philosophers who also influenced the Founders, including Cicero and Aristotle, similarly described the right to arms as inextricable from liberty. This idea was reflected in several of the various state constitutions of 1776, before the ratification of the federal Bill of Rights, including those of Pennsylvania and Virginia.
Additionally, however, Locke also wrote that the right to self-defence could not be ‘denied the community, even against the king himself.’ Here, the most salient purpose of the Second Amendment reveals itself; to serve as a check on government tyranny. The American Revolution was fought in the name of liberty against an undemocratic regime. It is unsurprising, then, that the Founders feared that such oppression could once again be inflicted upon the American people, without an appropriate means of resistance being expressly protected for them as a whole. For it would, of course, prove infinitely more arduous to impose tyranny upon an armed rather than impuissant populace.
Again, historical evidence for this reality abounds, both within the sources explored above and otherwise. Returning to the aforementioned quotation by Tench Coxe, he observed that the American people are empowered to bear arms precisely because ‘civil rulers’ and the ‘military forces’ at their disposal ‘may attempt to tyrannize’ or ‘might pervert their power to the injury of their fellow citizens.’ George Mason, meanwhile, himself regarded as the father of the Bill of Rights, recalled at a 1788 address to the Virginia Ratifying Convention that ‘the British parliament was advised… 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 to weaken them and let them sink gradually, by totally diffusing and neglecting the militia.’ In turn, he posed the question, ‘why should we not provide against the danger of having our militia, our real and natural strength, destroyed?’
And, in 1840, Joseph Story, a Supreme Court justice and tremendously esteemed jurist, published A Familiar Exposition of the Constitution of the United States, wherein he explicated this particular point with characteristic eloquence. “One of the ordinary modes,” he observed, “by which tyrants accomplish their purposes without resistance, is, by disarming the people”. Accordingly, the “militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. 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 usurpations and arbitrary power of rulers”.
In thinking of tyranny, one may likely be inclined to dwell upon the most wretched despots of the twentieth century – Hitler, Stalin, Mao, Pol Pot, Pinochet, Marcos – and the evils that their abhorrent reigns engendered. Opponents of the Second Amendment will frequently deride the suggestion that similar horrors could perniciously infect the United States – the world’s eternal beacon of freedom and prosperity – as absurd. Yet, as Charles C. W. Cooke questions in his 2014 article, The Great Equalizer, do such individuals not recall the great American tragedies of slavery and segregation? How, for almost two centuries following the nation’s founding, black Americans were systematically disenfranchised, subjugated, murdered, and abused? To quote Cooke directly, ”it’ did ‘happen here.’ And ‘it’ was achieved — in part, at least — because its victims were denied the very right to self-protection that had been recognized as the unalienable prerogative of ‘all men.’’
Enslaved Americans could not fulfil their natural, constitutional right to forcibly resist the evils that were inflicted upon them, and a civil war in turn became necessary for their emancipation. Federal sanction has even been granted for the eugenic sterilization of the disabled in recent American history; the egregious Supreme Court decision in the case of Buck v. Bell (1927) validated state laws which served precisely that purpose, on the despicable grounds that it would be “better for all the world, if… society can prevent those who are manifestly unfit from continuing their kind.” Perversions of government authority as abominable as slavery, segregation, and coercive sterilisation embody tyranny in its most overt form.
The state is as fallible as those who operate it, and it is, therefore, imperative that the right to self-protection remains unchallengeable, for all of those who are inexpressibly fortunate enough to share in American freedom.
If an understanding of both the significance and the reality of the Second Amendment forms a lacuna in the educations of some Americans, then those who reside outside of the United States can hardly be reproved for finding the nation’s perdurable gun culture baffling. But, although language, mores, and ideals may have evolved to a certain extent since the days of the Continental Congress, the Second Amendment still cannot be considered some shameful relic of a primitive time. Rather, reality is antipodal to such a contention. The Second Amendment is an expression of a fundamental, inalienable right that is as intrinsic to the continued success of the American experiment as any other, and its meaning is utterly clear. It shall endure, and rightly so.
Photo by Fibonacci Blue on Wikimedia Commons.