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Abstract

Modern debates about the meaning of the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms or a right that can be exercised only through militia organizations like the National Guard. This question, however, was apparently never even raised until long after the Bill of Rights was adopted. Early discussions took the basic meaning of the amendment for granted and focused instead on whether it added anything significant to the original Constitution. The debate later shifted because of changes in the Constitution and in constitutional law and because legislatures began to regulate firearms in ways undreamed of in our early history.

The Founding generation mistrusted standing armies. Many Americans believed, on the basis of English history and their colonial experience, that governments of large nations are prone to use soldiers to oppress the people. One way to reduce that danger would be to permit the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or similar emergencies, the government might be restricted to using a militia that consisted of ordinary civilians who supplied their own weapons and received a bit of part-time, unpaid military training.

Using a militia as an alternative to standing armies had deep roots in English history and possessed considerable appeal, but it also presented some serious problems. Alexander Hamilton, for example, thought the militia system could never provide a satisfactory substitute for a national army. Even those who treasured the militia recognized that it was fragile, and the cause of this fragility was just what made Hamilton disparage it: Citizens were always going to resist undergoing unpaid military training, and governments were always going to want more professionaland therefore more efficient and tractableforces.

This led to a dilemma at the Constitutional Convention. Experience during the Revolutionary War had demonstrated convincingly that militia forces could not be relied on for national defense, and the onset of war is not always followed by a pause during which an army can be raised and trained. The convention therefore decided to give the federal government almost unfettered authority to establish armies, including peacetime standing armies. But that decision created a threat to liberty, especially in light of the fact that the proposed Constitution also forbade the states from keeping troops without the consent of Congress.

One solution might have been to require Congress to establish and maintain a well-disciplined militia. Such a militia would have had to comprise a large percentage of the population in order to prevent it from becoming a federal army under another name, like our modern National Guard. This might have deprived the federal government of the excuse that it needed peacetime standing armies and might have established a meaningful counterweight to any rogue army that the federal government might create. That possibility was never taken seriously, and for good reason. How could a constitution define a well-regulated or well-disciplined militia with the requisite precision and detail and with the necessary regard for unforeseeable changes in the nations circumstances? It would almost certainly have been impossible.

Another approach might have been to forbid Congress from interfering with the states control of their militias. This might have been possible, but it would have been self-defeating. Fragmented control of the militias would inevitably have resulted in an absence of uniformity in training, equipment, and command, and no really effective national fighting force could have been created.

Thus, the convention faced a choice between entrenching a multiplicity of militias controlled by the individual states, which would likely have been too weak and divided to protect the nation, or authorizing a unified militia under federal control, which almost by definition could not have been expected to prevent federal tyranny. The conundrum could not be solved, and the convention did not purport to solve it. Instead, the Constitution presumes that a militia will exist, but it gives Congress almost unfettered authority to regulate that militia, just as it gives the federal government almost unfettered authority to maintain an army.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that federal control of the militia would take away from the states their principal means of defense against federal oppression and usurpation and that European history demonstrated how serious the danger was.

James Madison, for one, responded that such fears of federal oppression were overblown, in part because the new federal government was to be structured differently from European governments. But he also pointed out another decisive difference between Europes situation and ours: The American people were armed and would therefore be almost impossible to subdue through military force, even if one assumed that the federal government would try to use an army to do so. In Federalist No. 46, he wrote:

Read more from the original source:
The Second Amendment and the Inalienable Right to Self-Defense