Saturday, October 17, 2009

The Right To Bear Arms: On James Madison’s Original Wording of the Second Amendment

There is a bit of an ambiguity in the language of the second amendment, as I suggested in my last blog entry. Does the second amendment protect the individual’s right to bear arms or is that right tied to a State’s right to have a well-regulated militia? Or does the second amendment protect both? The language of the second amendment by itself is ambiguous. Can history help? Do historical sources shed light on what the second amendment was intended to mean?

When we turn to the larger historical context, we can find many sources that are relevant to the discussion. Of particular interest is the wording used by Madison when he proposed what was to become the second amendment. Let’s see whether Madison’s original wording sheds light on the ambiguity of the second amendment.

Madison and the Proposal of the Bill of Rights
We know that the Bill of Rights was intended to allay the fears of the anti-Federalists who had been against the ratification of the Constitution and afraid of a large powerful Federal government. James Madison, who was a supporter of the Constitution's ratification, and a co-author of The Federalist Papers, proposed the amendments to Congress on October 18, 1788 explicitly indicated that the goal was to reduce the fear of opponents to the Constitution that the federal government would encroach on their liberties.

I know some characters who opposed this Government on these grounds; but I believe that the great mass of the people who oppsed it, disliked it because it did not contain effectual provisions against the encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow citizens think these securityes necessary. View online.

Madison says the purpose of the Bill of Rights was intended to reassure the people who opposed the Constitution’s ratification because they did not think it offered the protections that they were accustomed to having against government interference in their lives. Given Madison’s view of the amendments’ purposes, it would seem reasonable to conclude that the amendments were designed to protect an individual's right to bear arms. But there are some interesting twists and turns of meaning that emerge when we look at Madison's own formulation of what became the current second amendment. Madison’s original language differed from the language of the final version that was approved by Congress.

Madison's Original Version of the Amendment
Here is how Madison formulated what was originally the fourth amendment in his original proposal:

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 services in person. View online.

Contrast this with the way the second amendment is now worded in the approved Bill of Rights.

"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."

How interesting! In Madison's original proposal, the language is the reverse of the current second amendment. In Madison’s version, the amendment begins with the people's right and then talks about the need for a well regulated militia. In the approved version that we now have, by contrast, the amendment begins with the need for a militia and then the right to bear arms. Second, in Madison’s version, the militia is required for “the best security of a free country.” By contrast, the current amendment speaks about the “security of a free State.” Third, in Madison’s version an exemption from military service is offered for people of religious conscience. That clause is dropped from the approved amendment altogether. What are we to make of these differences, if anything?

Let’s take up the order of the phrases first. Based on the order, Madison’s language seems to emphasize the people's right to bear arms as an independent self-contained statement much more than the present second amendment. His original language would seem to be a cleaner way to emphasize the individual nature of the right. By reversing the order of Madison’s original, the language of the now approved amendment seems to make the need for the well-regulated militia more primary and the individual right subservient to the need for a well-regulated militia. Is it possible the reversal in language signals a move away from the original intention of Madison’s language? It is difficult to know but that is one reasonable interpretation.

The ambiguity is actually even there in Madison’s language too. Madison’s language also links the right to bear arms to the need for a well armed militia, as if to say the right of the people to bear arms shall not be infringed "because" a well armed and well regulated militia being the best security of a free country. Both Madison’s and the current version of the amendment link the right to bear arms to the need for a militia.

Madison’s version of the amendment fits his language in other amendments as well. Stylistically, Madison begins two of the other amendments before the arms amendment with similar language:

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments…
The people shall not be restrained from peaceably assembling and consulting for their common good...
The right of the people to keep and bear Arms shall not be infringed….”

Each of these amendments emphasizes “the people”. Thus the rights enumerated in the amendments are rights of the people (not rights of States per se). And to emphasize this point, Madison proposes similar language for the preamble to the Constitution: "First, That there be prefixed to the constitution a declaration, that all power is originally vested in, and consequently derived from, the people.”

It is interesting that there is a slight difference in how the right is articulated in each of the three amendments that Madison enumerates. Two of them emphasize that “the people” shall not be restricted in an action ( “shall not be deprived…” “shall not be restrained”). The one about arms focuses on “the right” of the people shall not be infringed. It also puts “the right” before the verb. This change in emphasis may underscore Madison’s view that the bearing of arms is a right.

There is a second interesting difference between Madison's original wording and the final wording of the approved amendment. Madison speaks about a well armed and well regulated militia being the best security "of a free country" whereas the approved amendment says "being necessary to the security of a free State". This is potentially a significant difference. It is true that the founders did sometimes refer to their home state as “my country.” But it seems more likely here that Madison may have had in mind here the newly created United States, since the Constitution had just been ratified and a unified country had been created. In that interpretation, Madison is linking the right to bear arms to the need of the newly created United States to utilize a militia. By contrast, the approved amendment seems to link the right to bear arm to the need of militias for the States, and seems to be referring to individual States. Thus the final version of the amendment seems to link the right to bear arms to the powers and needs of the States vis-à-vis the newly created Federal government.

There is a third significant difference between Madison’s version and the final amendment as it now appears. Madison goes on to offer an exemption for people of conscience, such as Quakers: "but no person religiously scrupulous of bearing arms shall be compelled to render military services in person.” The current amendment does not have this anywhere, and in fact, ironically enough, it was precisely this clause about an exemption that was subject to debate in the Congress. We shall see that one of the State Constitutions has a similar statement and may have provided the example that Madison picked up on.

It is clear that Madison is envisioning a kind of military draft and the exemption is intended to acknowledge that people do not have to serve in the military if they are what we now call “conscientious objectors”. In other words, in Madison’s version, the first amendment which guarantees freedom of religion trumps the right to bear arms. One right trumps another right.

If we look at Madison’s language, then, it seems to start with the right that “the people” have to bear arms and the fact that that right is attached to the need for the country to have an armed force that can be mobilized. As soon as he shifts to the need to call forth a militia, he then focuses on the exemption that people of conscience have. The three parts are all tied together.
If we now ask about what the right of the people to bear arms means it is possible, even in Madison’s version, to give that it both an individual or a collective interpretation. The individual interpretation we have already described. The collective interpretation would be like this: The people [who have come together to create a political entity, the Country] have a right to “bear arms” or “have a military force.” In other words, it is the people who have entered into political statehood that collectively have a right to have an armed force. They retain this right even after a Federal government is created. They can still have an armed force comprised of private citizens and they can legislate to draft people for the military. The armed force does not belong to the Federal Government and should not be a standing army. It should be a force of the people that can be brought together and disbanded based on need of security. Having said that the people have a right to conscript their individual citizens, Madison then offers an exemption for the conscientious objectors. On this interpretation, then, the right of the people as a political collective is being protected against the government that they created. The government may tax them but it can’t forbid them to have their own military force comprised of the people.

This part of Madison's amendment which refers to people of conscience never made it into the final Bill of Rights. And if we look at the debate in Congress on the Bill of Rights, we find, ironically enough, that it was precisely this clause about the exemption for people of conscience, and not the right to bear arms, that was subject to debate and which was excised from the final amendment. This may explain why the statement about the militia was moved to the first part of the present day amendment. Once the reference to the exemption was dropped from the end, the word statement about the need for a military did not have to come at the end. It could now be reordered and placed in the beginning.

In conclusion, the wording of Madison’s amendment can lend itself to either a collective or individual interpretation. And the change between Madison’s version and the present day amendment suggests that even more emphasis was placed on the need for the state to have a well-regulated militia comprised of ordinary citizens.