The Second Amendment: The Congressional Debates

Caches of Tabuk 7.62 mm short assault rifles, ...

Caches of Tabuk 7.62 mm short assault rifles, Tabuk 7.62 mm assault rifles, and other rifles inventoried at the Iraqi Civil Defense (ICDC) armory in Al Shahabi, , during Operation IRAQI FREEDOM. Location: AL SHAHABI, AL ANBAR IRAQ (IRQ) (Photo credit: Wikipedia)

We learned from the Constitutional ratification debates that the authority that Congress took over the state militias was of grave concern to the states, particularly Virginia, New York, North Carolina and New Hampshire.

Each of these states submitted a Declaration of Rights with their ratification letters (North Carolina submitting after the Bill of Rights ratification process had already started).

After five of the eleven states that had ratified the Constitution requested amendments and alterations, Madison sat down crafted a list of possible amendments, drawing from the suggested changes the states had requested.

Thus, the Second Amendment began life like this:

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…

The proposal was to ease the fears of the anti-Federalists of the militias not being properly armed, not that the government would seize their arms. It was expected that every male capable of bearing arms would do so, except for those who have religious objections to fighting, like the Quakers. The religious objections clause was eventually struck from the language, leaving it  up to the state legislatures to determine who was eligible to serve, and who was not.

James Madison, probably far more than his contemporaries, was a big picture guy. He thought in terms of a nation, as opposed to Sovereign States, like most anti-Federalists did. It was Madison who struck the word sovereign (used in the Articles of Confederation) and replaced it with several in his Virginia Plan. Of course he used the word country instead of state. There are those who, in order to prove (to themselves) that the right to bear arms sprang from the suppression of slave revolts, point out that the word country was changed to state by Madison when he caved to pressure put on by Patrick Henry. The problem with this argument is that he didn’t make that change.

The change was made in committee, in which Madison didn’t even participate. When it came out of committee on July 28, 1789, it was worded like this:

[6] 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.

It needs to be noted that not everyone in Congress agreed with Madison’s concept the nation is comprised of several states. Many believed the States were still sovereign, and retained a certain amount of authority over the Federal government. That is why States is often spelled with a capital “S” (If you read my writings, I often use this form, though sometimes I miss a few in editing). The Second Amendment clearly intimates that, at least to members of that committee, the States are sovereign, something we have forgotten today.

It underwent several more changes by both the House and the Senate until September 14, 1789, it was officially adopted by both chambers:

ARTICLE THE FOURTH. 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.

Up until ratification, the right to keep and bear arms was the 4th Amendment.

While the Senate debates were kept secret, the House debates were not. How did the members of the House of Representatives feel about the right to keep and bear arms?

Elbridge Gerry (Mass.): This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed….What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures with respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishement [sic] of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown.

[Ed. Note: I removed the language concerning the religiously scrupulous, as that language was ultimately removed from the amendment]

Shortly after the Second Amendment was adopted (not ratified), Congress realized that they needed a standing army to quell Indian raids and incursions, and to protect settlers to the west. They intended to keep it as small as possible. In the early 1900’s the militias were transformed into the National Guard, more a reserve force than a militia, then the military exploded in size after the First World War.

If you sit and read the debates, however, Congress was not worried about keeping and bearing arms. They were concerned about the militias, and who would serve and who would not. It was all about the militias, from the debates on the ratification of the Constitution, to the debates on the amendment itself.

The Congressional Journal is here, while an abridged version of the Congressional Journal is here. {Ed. Note: There several typos which I attempted to fix as I found better sources. This was a starting point.]

A letter from Senator Richard Henry lee of Virginia to Patrick Henry gives us a brief glimpse into the Senate debates.

“…The history of the world and reason concurs in proving that so extensive a Territory {as the} U. States comprehend never was, or can be governed in freed{om} under the former idea-Under the latter it is abundantly m{ore} practicable, because extended representation, know{ledge of} character, and confidence in consequence, {are wanting to sway the} opinion of Rulers, without which, fear the offspri{ng of Tyranny} can alone answer. Hence Standing Armies, and des{potism} follows. I take this reasoning to be unrefutable, a{nd} therefore it becomes the friends of liberty to guard {with} perfect vigilance every right that belongs to the Sta{tes} and to protest against every invasion of them- taking care always to procure as many protesting States as possible-This kind of vigilance will create caution and probably establish such a mode of conduct as will create a system of precedent that will prevent a Consolidating effect from taking place by slow, but sure degrees. …”

While Senator Lee does not mention militias or the right to bear arms specifically, you can read the fear of standing armies in the letter. The rights of the states must be protected from invasions by the Federal government, and how better to do that than with the State militia, the guarantor of a free State?

Samuel Nasson was from Maine (part of Massachusetts at the time), and was elected to the Massachusetts General Court (the Massachusetts Legislature) in 1787, but was defeated in 1789. He was an anti-Federalist who wrote a letter to George Thatcher, an ardent Federalist who served as a Representative in Congress from 1787 to 1801. The letter said, in part (all spellings in the original):

A Bill of rights well secured that we the people may know how far we may Proceade in Every Department then their will be no Dispute Between people and rulers in that may be secured the right to keep and bear arms for Common and Extraordinary Occations such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy you know to learn the Use of arms is all that can Save us from a forighn foe that may attempt to subdue us for if we keep up the Use of arms and become well acquainted with them we Shall allway be able to look them in the face that arise up against us for it is impossible to Support a Standing armey large Enough to Guard our Lengthy Sea Coast and now Spare me on the subject of Standing armeys in a time of Peace they allway was first or last the downfall of all free Governments it was by their help Caesar made proud Rome Own a Tyrant and a Traytor for a Master.

Mr. Nasson never rose above state level politics, but when he wrote this letter, he was writing his Congressman. He was not one of the Founding Fathers, but he did fight in the war, and made the rank of Major.

Thatcher was one of the original members of Congress, coming from the District of Maine. The State of Maine, prior to being admitted to the Union, was a district controlled by Massachusetts.

Thatcher wrote an editorial in the Cumberland Gazette (Portland, Maine) under the name Scribble Scrabble discussing, prior to the discussion on the Bill of Rights, about the right to keep and bear arms listed as Article XVII in the 1780 Massachusetts Constitution.

Art. XVII. 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.

Thatcher interpreted this to mean that people were not limited to the use of arms for defense only, because it did not contain negative words like only. He did, however, believe that the right to keep and bear arms was an alienable right, one which government could give and control, unlike his constituent, Samuel Nasson.

On June 12, 1789, Massachusetts Representative Fisher Ames wrote a letter to one George R. Minot (I have yet to determine who that is) stating that the rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.

In a letter from John Randolph (of Roanoke) to his father St. George Tucker, Randolph wrote (September 11, 1789):

A majority of the Senate were for not allowing the militia arms & if two thirds had agreed it would have been an amendment to the Constitution. They are afraid that the Citizens will stop their full Career to Tyranny & Oppression.

John Randolph (of Roanoke, Virginia) was the stepson of St. George Tucker. In 1789, Randolph would have been 16 at the time of this writing, so he was neither Representative nor Senator. So, we once again get the point of view of, while not an average person, someone not in the government, plus we get a glimpse into the Senate debates. Unfortunately, it is not 100% clear what he meant by this. Randolph was an anti-Federalist, but an aristocrat to the core. If I am reading this correctly, he is saying that the Senate is afraid to arm the militia, lest the militias be used to overthrow the government, and the government be subjected to tyranny and oppression from the citizens. The first part looks as though he is suggesting that the Senate almost agreed to disarm the militias, afraid of letting citizens keep their arms.

Congress was pretty clear in their debates, that they were addressing the concerns of the states about militias. States were concerned that the Federal government would not supply arms to the militias.

Apparently in the Senate, the debates were much fiercer, and approval of the amendments given more grudgingly.

How did some of the Founding Fathers feel about the right to bear arms? Continue on to Part 3: The Founding Fathers (part 1)

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