by Ryan McMaken, Mises Institute
While many defenders of private gun ownership recognize that the Second Amendment was written to provide some sort of counterbalance against the coercive power of the state, this argument is often left far too vague to reflect an accurate view of this historical context surrounding the Amendment.
After all, it is frequently pointed out that private ownership of shotguns and semi-automatic rifles could offer only very limited resistance to the extremely well-equipped and well-armed United States military.
It is often, therefore, just assumed that the writers of the Second Amendment were naïve and incapable of seeing the vast asymmetries that would develop between military weaponry and the sort of weaponry the average person was likely to use.
Was the plan really to just have unorganized amateurs grab their rifles and repel the invasion of a well-trained military force?(1)
The answer is no, and we know this by looking at the wording and reasoning behind the Second Amendment. The text, of course, 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.”
Gun-rights advocates often fixate on the second half of the amendment, claiming that the phrase about a militia is just something that provides a reasoning for the second phrase. Many opponents of gun control even suggest that the only phrase here of key importance is “shall not be infringed.”
The Second Amendment as a Guard Against a Standing Army
Looking at the debates surrounding the Second Amendment and military power at the end of the eighteenth century, however, we find that the authors of the Second Amendment had a more sophisticated vision of gun ownership than is often assumed.
Fearful that a large federal military could be used to destroy the freedoms of the states themselves, Anti-Federalists and other Americans fearful of centralized power in the US government designed the Second Amendment accordingly. It was designed to guarantee that the states would be free to raise and train their own militias as a defense against federal power, and as a means of keeping a defensive military force available to Americans while remaining outside the direct control of the federal government.
This grew out of what was a well-established opposition to standing armies among Americans in the late eighteenth century. In his book Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 1783–1802, Richard Kohn writes:
No principle of government was more widely understood or more completely accepted by the generation of Americans that established the United States than the danger of a standing army in peacetime. Because a standing army represented the ultimate in uncontrolled and controllable power, any nation that maintained permanent forces surely risked the overthrow of legitimate government and the introduction of tyranny and despotism.
We can see this plainly in the speeches and writings of the Anti-Federalists like Patrick Henry, but we also see it in the more moderate attendees of the constitutional convention as well, such as George Mason, who “When once a standing army is established in any country, the people lose their liberty.”
Sentiments like Mason’s did not represent the views of oddball outliers. Rather, Kohn notes, these were mainstream views of the danger of an unimpeded federal military establishment.
But how to combat the power of a federal standing army?
On this, the Americans did not need to re-invent the wheel. After all, the idea of locally-controlled military forces answerable to civil officials was put into place in seventeenth-century England. The English militias had been created out of fear of a large standing army directly answerable to the king.
Although the system had fallen into disuse in England by the time the Americans were debating the matter in the eighteenth century, the Americans were well aware of this history.
These ideas were further developed at the Virginia ratifying convention where Patrick Henry mocked the idea that liberties could be preserved by simply “assembling the people.” Without locally controlled, military might, Henry noted, federal force could destroy the independence of the state governments. Similarly, George Mason concluded that the “militia … is our ultimate safety. We can have no security without it.”
As historian Leon Friedman concludes, “the people organized in the state militias were regarded as a counterforce against the threat that the regular army could be used as an instrument of oppression and service in the militia was a right of the citizen that could not be transgressed by the federal government.”(2)
In light of this, it’s easier to see the key element offered by the “militia” phrase of the Second Amendment.
Even after the adoption of the new constitution, opposition to a powerful federal military continued. Congress opposed not only attempts to increase the size of the professional US army much beyond 1,000 men, but also opposed attempts to mandate any specific training in a “federally organized militia system.” In the end, opposition to federal control of military affairs meant training of militias was “left entirely to the states.” (3)
The “Unorganized Militia” and Private Gun Ownership
As Brion McClanahan has shown, the Second Amendment — like the First Amendment — was never written to apply to the states themselves, but to Congress. The states were still free to regulate the ownership of weaponry in their own constitutions and by their own legislatures. Most state governments, however, elected to include provisions in their own constitutions protecting private gun ownership as an element of the state’s overall militia strategy.
This is understandable given the long tradition of the “unorganized militia” in American history. While some advocates of gun control might claim that gun ownership is guaranteed only to those engaged in active militia service, this idea is directly opposed by the provisions in state constitutions guaranteeing private gun ownership and a general inclusion in the militia of all able-bodied males. This notion was recognized by policymakers even before ratification of the federal constitution, as noted by legal historian David Yassky:
As we have seen, in practice Founding-era militias were far from universal, but in the Founders’ conceptual framework the militia consisted of the mass of ordinary citizens, trained to arms and available to serve at the call of the state. As George Mason put it: “Who are the militia? They consist now of the whole people, except [for] a few public officers. … When the Second Congress sought to exercise its constitutional authority to “provide for organizing, arming and disciplining the Militia,” it directed “each and every free able-bodied white male citizen of the respective states [except for persons exempted under state law and certain other exempted classes] … who is … of the age of eighteen years, and under the age of forty-five years” to enroll in the militia of their states. Or as Patrick Henry declared at the Virginia ratifying convention: “The great object is, that every man be armed.” (4)
By the close of the nineteenth century, this sort of language would be commonplace. An 1894 collection of texts from state constitutions shows that not fewer than 22 state constitutions5 contained language along the lines of “the militia of the State shall consist of all able-bodied male residents of the State, between the ages of eighteen and forty-five years.” (6)
To ensure a ready availability of men used to handling firearms, these constitutional provisions are often accompanied by state guarantees of a right to keep and bear arms similar to the 1780 Massachusetts declaration of rights which states:
The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.
Some states specifically stipulated that the ownership of arms is for personal use. One of the most specific of these is perhaps the Colorado Constitution (1876) which states:
That the right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question.
But if there was left any doubt that this might apply specifically to one’s own personal property — and not to some general idea of “defense of homeland” — the Montana Constitution states a person may keep arms “In defense of his own home, person and property…” [emphasis added.]
Both Montana’s and Colorado’s texts are remarkably similar to that of Missouri’s which states persons may “keep and bear arms in defense of his home, person and property or in aid of the civil power…” Other similar clauses include Arkansas’s text: “The citizens of this state shall have the right to keep and bear arms for their common defense.” Maine’s: “Every citizen has a right to keep and bear arms for the common defense; and this right shall never