The Second Amendment

By David M. Wagner, Esq.





When strange new constitutional rights are being invented on relatively imprecise terms such as "due process," it is amazing that one constitutional amendment that speaks in very precise language gets ignored.

The Second Amendment 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." Why do American judges today not draw the obvious conclusion that gun control (whether good policy or not) is unconstitutional, and that the Constitution envisions an armed citizenry?

The usual argument is that the right to own guns is restricted to the "militia," and the "militia" is the National Guard, so the right doesn't apply to ordinary people. This argument was dealt a serious blow in 1994 when Harvard University Press published "To Keep and Bear Arms: The Origins of an Anglo-American Right," by historian Joyce Lee Malcolm.

Since medieval times, Malcolm shows, civil order and national security were maintained by a network of citizen-militias. The law required people to participate in them. Sometimes the law was enforced, and sometimes it wasn't. Sometimes the people thought of militia service as a right, but more often as a duty. In any event, the militia was far from a disciplined "standing" army that the king could control.

Then, during the political and religious strife of the 17th century, governments began using the militia more as a political police force. Under Oliver Cromwell's government, "disaffected" militiamen were purged; standing (i.e., permanent) armies ready to do the government's bidding began to arise. When the monarchy was restored under Charles II, he continued the trend of dominating the militia and building a professional army. He also began to systematically disarm those who were deemed politically unreliable. James II continued and expanded these policies and ended up being overthrown.

All of this left the English people with a great dislike for standing armies, and a sense that their militia duties, while not always welcome, were nonetheless an important safeguard of their freedom. It also left them firmly convinced that government must not be allowed to disarm its citizens. The Declaration of Right, produced by the Parliament in 1689, included protection of citizen's gun rights. In fact, it made possession of guns an independent right, not at all dependent upon membership in a militia.

Our founding fathers knew this history well and revered the 1689 Parliament. When the first Congress proposed the Second Amendment in 1789, it was doing just what the English had done exactly 100 years earlier--making sure the federal government would never try the tyrannical moves made variously by Cromwell, Charles II, and James II. That's what they meant by signaling the importance of militias to free states in the very text of the amendment.

And no, "well-regulated" does not mean regulated by government. It means well-trained. The amendment is constructed so that private gun ownership is a consequence of the need for good regulation, not an exception to it. The amendment envisions Americans owning their own guns--not borrowing them from the government--and receiving regular training in their proper use. Englishmen in 1689 had learned the hard way not to let gun ownership become a government monopoly. Americans in 1789 still remembered.



This information provided by the February 1998 issue of the Washington Watch published by the Family Research Council. For more information, contact Family Research Council, 801 G Street, N.W., Washington, D.C. 20001. Phone (202) 393-2100. Legislative information line (toll call): (202) 783-HOME



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