Original 2nd Amendment

Because my previous post, 2nd Amendment On Trial, had generated a goodly amount of interest and commentary I felt that it might be interesting and potentially valuable to make a post regarding the original form and intent – as best as can be derived through historical sources – of the Second Amendment.

On June 8, 1789 James Madison introduced the Bill of Rights to the first session of the first congress of the U.S. House of Representatives. Within was contained what was to become the 2nd Amendment. His original text follows:

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.

Annals of Congress,
House of Representatives, 1st Congress, 1st Session: pp. 451

It is pertinent to note that The Bill of Rights was not originally intended to composed of numbered amendments to be added at the end of the Constitution. These Rights instead were to be inserted into the existing text of the Constitution. The Second Amendment was to be inserted in the First Article, Section Nine, between clauses 3 and 4, following the prohibition on suspension of habeas corpus, bills of attainder, and ex post facto laws, all which are individual civil rights asserted by individuals as a defense against government tyranny.

On August 17, 1789 The House entered the following reworded 2nd Amendment into the House Journal:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.

Annals of Congress,
House of Representatives, 1st Congress, 1st Session: pp. 771

The House of Representatives debated the revised Amendment until August 24. This debate primarily centered on the possibility that the future US government could use the “but no person religiously scrupulous shall be compelled to bear arms” clause to disband the militia. This was resolved on August24, 1789 and a reworded the 2nd Amendment was sent to the U.S. Senate:

A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

Journal of the Senate of the United States of America,
Volume 1: pp. 63

This modification to the Amendment prevented the government from using the religion of any of its people as a means to disband the US militia made up of the body of the people. They couldn’t claim that Thou Shalt Not Kill or An It Harm None, Do As You Please were religious mandates that would prevent States or communities from raising a fighting force in their own defense.

Sadly, between September 4 and September 9, 1789 the Senate voted to change significantly the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause. The final version to leave the Senate was:

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Journal of the Senate of the United States of America,
Volume 1: pp. 71

This abbreviated version of 2nd Amendment was sent to the House of Representatives on September 9, 1789 and was voted on and accepted on September 21, 1789. Strangely the Amendment was modified somewhat during the course of this – without further ratification by the Senate. The final version that the House sent to the States for ratification was:

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.

Journal of the House of Representatives of the United States,
Volume 1: pp. 305

As you can see the 2nd Amendment underwent a great deal of revision just in course of its birth. What we have today bears little resemblance to what was originally intended and written. History is unclear on the reasons for many of the revisions. One thing remained clear in the course of all the debates and revisions though – the primary purpose of the 2nd Amendment to the US Constitution was to guarantee that the People had the means to protect their liberty from the possible tyranny of our own government.

Related Reading:

Barron's AP U.S. Government and Politics, 8th Edition
A Guide Book of Carry Gun Values
The Second Amendment Primer: A Citizen's Guidebook to the History, Sources, and Authorities for the Constitutional Guarantee of the Right to Keep and Bear Arms
The Supreme Court
History's Greatest Generals: 10 Commanders Who Conquered Empires, Revolutionized Warfare, and Changed History Forever

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21 Responses to “Original 2nd Amendment”

  1. damewiggy Says:

    interesting interpretation, jon.

  2. jonolan Says:

    Dame Wiggy,

    It’s an interpretation; I don’t dispute that. But it’s not much of an interpretation if you read the source material. Our founders were more concerned about what our government could become than just about anything else.

    Read the Federalist Papers and their counterpoint literature for further explanation and insight into what our government was thinking in the first few decades of America.

  3. Leif Rakur Says:

    Thomas Jefferson, the most prominent of the Bill of Rights advocates, called the Second Amendment “the substitution of militia for a standing army.” In a letter to Dr. Joseph Priestley, June 19, 1802, he claimed some credit for that amendment along with others he proposed.

    Jefferson said he “wrote strongly” to James Madison urging adoption of his provisions. Madison “acccordingly moved in the first session of Congress for these amendments, which were agreed to and ratified by the States as they now stand.”

    Jefferson thought a standing army was “so dangerous to the rights of the nation” that government should be “restrained from keeping such instruments on foot, but in well-defined cases.”

    That, to Jefferson, was the function of the Second Amendment.

  4. jonolan Says:

    Oh yes! In The Federalist Papers, No. 46 Noah Webster is quoted as saying,

    Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States

    A well and universally armed populous was thought of a prerequisite for any thought of allowing a standing federal army.

  5. Christy Says:

    the primary purpose of the 2nd Amendment to the US Constitution was to guarantee that the People had the means to protect their liberty from the possible tyranny of our own government.

    So be it! (Or if speaking to someone familiar with Christian lingo, AMEN!)

    ;)

  6. jonolan Says:

    Hi, Christy! I hope you had a great Thanksgiving.

    “So be it! (Or if speaking to someone familiar with Christian lingo, AMEN!) “

    Or if speaking to someone familiar with Wiccan lingo, SO MOTE IT BE!

  7. Christy Says:

    Hey, Jonolan.

    Not familiar with Wiccan terminology. Learn something new every day.

    Yes, I had a fabulous, awesome, lovely Thanksgiving – one of the best in years. =) I hope you had a great Thanksgiving as well!

  8. Christy Says:

    Of course, on second thought, you could be just messin’.

  9. jonolan Says:

    Christy,

    No I’m not messing around.

  10. Christy Says:

    Just checking. =)

  11. Christy Says:

    For the record, thanks for the analysis.

  12. DC v. Heller - It's On! | Reflections From a Murky Pond Says:

    [...] Finally, after over 70 years the US Supreme Court will hear a case whose basis is whether the 2nd Amendment to the US Constitution is an individual right or a collective [...]

  13. Onemorecup Says:

    jonolan:

    Just love what I see over here! You have done a pretty exhaustive study on the 2nd Amendment and you deserve many kudos indeed!

    For anyone to make an assessment other than what you’ve proffered here would be nothing short of ignorance. Sure…we all have our opinions; but one cannot argue with a well-researched point of view.

    I feel quite privileged to have you visit “The Thinker” (my blog) vis-a-vie Stalin’s statement about how to bring America down. However, after reading your assessment here, I am reminded that the point he makes is ‘all consuming’ and ostensibly would bring anything down. If you don’t mind I would love to add your site to my Blogroll. CHEERS!

    jp schilling aka Onemorecup
    “The Thinker”

  14. jonolan Says:

    JP Schilling, Welcome to this blog!

    I don’t know what to say except thank you.

  15. geneo Says:

    Great work, Jonolan.

    I am not an “original intent” guy myself, but anyone who is should consider this carefully. You do a good job here of sticking to the sources. I’ll add that I think there is a clear legal distinction between “the People” and plain old “people” that runs through most of the legal work from the founding period I have seen. “the People” is a nation. The academic concept of “nationalism” was not fully developed at this point.

    I believe if we trace this concept of “the People” back in time through the Western history of ideas, we’ll find that it is roughly co-extensive with the Latin concepts “populi” and “gentium.” So, if I were a judge, I would have a hard time constructing an argument supporting individual gun ownership from original intent. I would also have to consider that the way we do military organization has changed so much during the founding period that the founders’ idea of “the People” bearing arms doesn’t really apply.

    I want to be clear here — I am NOT opposing individual gun ownership. I own guns, handle them responsibly, aned store them in an appropriate manner. I respect them and enjoy them. I am simply voicing my skepticism of the argument that the Second Amendment protects that right. The more I learn about constitutional and international jurisprudence, the more it seems that the Second Amendment, in modern terms, is really just protecting our right to keep a standing volunteer army.

  16. geneo Says:

    One more thought: I wonder what the intent of this amendment was in regard to the STATES. The Bill of Rights was not intended to be incorporated to the states at this time. Trying to figure out how the right of the People to keep and bear arms, as a national right, was going to really be a buffer against the tyranny of the national government. Is the assumption here that, if one branch or one state got out of control, some other branch would take control of the militia and, as Locke says in his Treatise “do what Jephta did?” (i.e. appeal to heaven and lead your army out). I would love to know what you think about that.

    Also, Jonolan, I don’t want to presume to put words in your mouth, but I am developing a deep appreciation for your love of Liberty and hatred of Tyranny. I’ve got some stuff about a man in my town who was arrested under very suspicious circumstances for exercising his First Amendment Rights, if you’d like to check it out.

  17. jonolan Says:

    To my mind, geneo, the key point addressing you point is that the 2nd Amendment was originally intended to be to be inserted in the First Article, Section Nine, between clauses 3 and 4 of the US Constitution. The surrounding rights are all individual rights. Therefore it is logical to assume – via intended context – that what became the 2nd Amendment was intended as an individual right.

    And…thank you, geneo. I’m a strong proponent of liberty – and the individual responsibility that it requires.

  18. ReyMac Says:

    jonolan-
    came to check out your source material, as you suggested. I follow your argument until your conclusion. I think you’re making a jump that the right to bear arms was specifically intended to allow for protection against one’s own government. But that said, the final version passed and numbered in the Bill of Rights reads very differently from the original text. That said, the legal argument (if a=b, and b=c, then a=c) equates a militia with the necessity of people to own guns for the protection of “a free State” which means country, no? The protection from within appears to be your interpretation.

  19. jonolan Says:

    Mine and many others – including most of the SCOTUS judges, ReyMac. It is still open for argument though. Your view falls in line with the federalists and other groups.

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