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"Understanding the Intent Behind the Second Amendment: The Founders' Perspective on the Right to Bear Arms"

This week I was asked about our Second Amendment which 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.”

I was also asked if the states had a Tenth Amendment right to invoke gun restriction legislation through the states' reserve power to the people.

More specifically, the Tenth Amendment reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectably, or to the people.”

The Tenth Amendment is really for those things that are not discussed, those things forgotten or otherwise not included. The constitution is a framework, much like your own bodily constitution is. Within that framework, we’ve filled in the details of law federally by states and through local ordinances.

The thing is that the right to keep and bear arms is described in the Second Amendment. It says explicitly that you have a specific right and in the first line even gives the purpose for it. That a well-regulated militia is necessary for the security of a free state. This language comes right out of “The Articles of Confederation” which states:

“Every state shall keep a well-regulated and disciplined militia, sufficiently armed and accounted, and shall provide and constantly have ready for use, in public stores a sufficient amount of arms ammunition and camp equipment”.

Under the confederation, it was the duty of the states to protect themselves. That’s what our Second Amendment is for. It is so the states can help provide for a national defense. It is not what many would say- that it is for personal self-defense or a right to hunt. I certainly don’t dispute these rights either.

These rights are provided for in the constitution under Natural law or God's law in which our founders believed that each person has natural rights given at birth as members of the human race. These rights are not spelled out but are found in the Ninth Amendment.

The Bill of Rights is our first ten amendments, twelve were sent to the states and ten of those were initially approved and became the first amendments approved. So, the second, ninth, and tenth are part of that document, written by James Madison and proposed by him in the first Congress under the Constitution of the United States.

During the Constitutional Convention, towards the last few weeks, they began discussing a bill of rights being added. It was not approved. There was a belief among our founders that it was not necessary, they believed that it was already included in the text throughout the constitution.

When the document was moved forward through the state ratifying conventions there were disappointments that they were giving up their rights to join a federal government, without guarantees of their natural rights- with no protections!

Some of the states were reluctant. If you were to look at the Anti-Federalist papers, which are articles written in opposition to the ratification of the Constitution, you’ll find these arguments.

James Madison simply took up the complaints from the states and submitted them for approval.

The section that became the second amendment was changed by the Senate before it moved on and was sent to the states for ratification. It reads, in its first draft:

“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”

This last line didn’t make it, eliminated by the Senate. But it does give you an idea of the thoughts at the time. Keep in mind they made it out of the House of Representatives.

This whole idea is how defense was carried out during our time of the founding. That you had arms in your home and when danger came, an invasion or Indian attack at the time, could be fought by the people coming out armed and ready to go. Even the line to promote the general welfare is linked to defense according to the Federalist Papers. The constitution says you can only fund an army for two years. Of course, congress can simply re-appropriate funds. This is not so for the Navy. Kind of interesting isn’t it? Defense was a main concern, if not the highest concern of our founders.

My book Textualism and Originalism defines the meaning of the Constitution breaking it down into sections to help explain and allow the reader to better understand. Our Founders gets into the historical record and language that the Federalist and Antifederalist papers argued at the time. The purpose is to give you a more historical context. This is important to understand the why, and frankly, it helps to better understand the document itself.

Our founders were pretty self-reliant. They built their roads, and bridges, used their foundries for cannons, and even poured their bullets and mined black powder. They were forced to be self-reliant and govern themselves when they carved a home out of the wilderness. It was not an easy life when they first came and they needed arms to survive.

The world may have changed but the security given to us by our founders is paramount in securing the rights we’ve so long enjoyed. Liberty is important! You can have security without liberty, yes you can, it’s called imprisonment!


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