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.

A Right To Bear Arms?

Do we have a right to bear arms? And if so, what kind of right is this? Well, the second amendment in the American Constitution, of course, says:

"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."

"We" Americans, then, have a right to bear arms to the extent that we understand this amendment and agree that it has the power to define our rights. Or if this is a "natural right" then everyone should have the right to bear arms. But first let us focus on the meaning of the amendment here and what it means for Americans. For even if it isn’t a natural right, Americans would have the right because their Bill of Rights gave them the right.

For right wingers and gun rights advocates, this amendment means that individuals have a right to own and possess guns, for their own protection and sport. It is proof that the founders saw gun possession as a fundamental and perhaps even natural right. This right comes just after freedom of speech and religion in the first amendment. It is of the same level of importance and comes before protection from search and seizure and trial by jury, other rights listed in the Bill of Rights. It is an individual right. Just as the right to free speech and religion talks about "the right of the people" so too this amendment talks about the right of the people, meaning an individual right.

But, as anyone who has read or thought about this the amendment and its language realizes, the issue is more complex. For the language of the amendment is not transparent at all. The fact that it is not transparent raises complex interpretive problems leading to disputes on the amendment's meaning and intention. And ultimately what is a debate over the nature of a core social value and definition of rights boils down to a debate about language, history and interpretation. So what else is new?

Unfortunately or fortunately, depending on your perspective, the amendment doesn't just say "the people have a right to keep and bear arms.” That would have been a clearer and more straightforward way to give individuals a right to own guns. Instead, the amendment prefaces the right to bear arms with a statement about the need of a free State to have a well regulated Militia. Why is that?

This is the horns of our interpretive dilemma and debate over what the amendment means. Before looking at historical facts to try to interpret this amendment, let us look at the language by itself and see what sense we can make of it. One of our supreme court justices (Justice Antonin Scalia, A Matter of Interpretation) thinks we can interpret the Constitution just by looking at its language and not looking at historical context to interpret language. Let's see if he is correct in this case.

"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."

Why does the language of the amendment link the "right of the people to keep and bear arms" with the need for a "free State" to have a well regulated militia? One way to read the amendment is as follows: "Since" a state needs a well-regulated militia, for its security, that is why the people's right to bear arms shall not be infringed. In this reading, the language of the amendment makes the right to bear arms tied to the need to support the State with a well-regulated militia.

Bearing arms is thus tied in some way to the need for a militia. The language of "bear arms" underscores the association of this amendment with the idea of military defense. "Bearing arms" in the founding is usually associated with the idea of military defense, as Akhil Reed Adams, has pointed out in his America's Constitution: A Biography, 322-323. One can find numerous examples of how "bearing arms" refers to a military context in founding documents such as The Federalist Papers.

If this amendment was simply justifying a defense of my individual right to possess and own guns, why add any language about the militia at all? One possibility is that the right to bear arms is derived from or dependent on the need for protection of the state. On this interpretation, there is not some individual right to bear arms separate from the need to protect the state. And thus the ownership of guns is tied to that purpose particularly. If that is so, then one could argue that the use of guns should be restricted to military purposes.

Some modern interpretations of the amendment have leaned towards this interpretation. They say that the amendment grants "the people" collectively, and not individuals as individuals, the right to own guns for the purposes of State security. On this view, since the State is created in part for protection of individuals there is a right for "the people" to bear arms in defense of themselves. But there is no individual right to bear arms, apart from this purpose to defend the State. Champions of gun control would like to read the amendment this way and declare that gun ownership should not be for sport or personal protection but linked only to common defense of the state. Going further, you can also argue that the State can therefore control the right to bear arms since the purpose of the amendment is to protect the State’s right to defend itself. The State has the right not individuals.

But there is another ambiguity in the language of the amendment concerning the purpose of the militias. What does the amendment mean when it says that well regulated militias are "necessary to the security of a free State." There are two ways of understanding this statement. Most probable is that the amendment is referring to militias that were intended to protect each state in the Union. In other words, the amendment is recognizing that though the Constitution grants the Federal government the right to create a permanent army, the States themselves still had the right to militias for their own protection. Indeed, the Constitution assumes that the individual States still retained some sovereign power and thus had a right to protect themselves against aggressor states or foreign invaders, even though the newly formed Federal Government had the responsibility to defend the collective states and police conflicts between states. The States in other words retained some of their rights of independence that had existed before the Constitution.

This would make some sense reading the powers granted to the Federal Government in the Constitution:

Article 1, Section 8 of the ratified Constitution had already outlined the power of Congress:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

As is evident here, the Constitution envisions that Congress has the power to create an army with money appropriated through taxes for up to two years. An “army” which was made up of professional soldiers differed from a militia which was drawn from the people on an as needed basis (see Amar, Bill of Rights). The Constitution itself, even before the Bill of Rights was ratified, envisions that Congress has the power to call forth the "the Militia" to execute the laws of the Union, suppress Insurrections and repel invasions." The Constitution presupposes that the States have militias and that Congress can mobilize the militias for broader Federal interests.

To tie the Constitution and Second Amendment together, then, the two seem to be saying that 1) the Federal Government presupposes the existence of the State militias that can be mobilized for Federal purposes and 2) the need for a well-regulated militia requires that the people’s right to bear arms not be infringed. Thus if the Federal government can take away people’s arms, the states cannot have well-regulated militias.

The second amendment, therefore, could be construed as a state right rather than an individual right. The protection is offered to the people by giving States the right to arm their citizens and create militias. On this reading, the protection is collective by offering individuals protections through their States. We know in fact that there was deep concern during the Debates on the Federal Constitution about the liquidation of State powers. One could argue that the second amendment was intended to protect this State right to create militias and arm their citizens. This could make some sense of the language.

Yet while the debates preceding the ratification of the Constitution often focused on the tension between State and Federal powers, the Bill of rights seems aimed at ensuring individual rights. Freedom of speech and religion, search and seizure, trial by jury, are all rights of individuals. And “the right of the people” though phrased as a right of a collective is used also in other amendments to clearly mean an individual right, as in Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Still, the fact that the second amendment does not start with “the right of the people to bear arms” but with a preamble about a “well regulated Militia” seems to tie the individual right to the need for the States to have a capability of protecting themselves. My right to bear a gun is tied to the State’s purpose of creating security for me. Since the founders envisioned the purpose of the State to be partially for security, and to protect individual rights, then the mechanisms of ensuring that security have to be protected.

The language of the amendment therefore is interestingly ambiguous when read in the context of the Bill of Rights as a whole or the Constitution as a whole. By looking at language alone it is difficult to say what the “intent” or “meaning” of the amendment is or was intended to be. Justice Scalia is clearly wrong when he says we can interpret meaning of the founder’s language without looking at history. This amendment in its language is ambiguous. And perhaps that ambiguity was part of the intent.

Religion and Freedom, Separation of Church and State and Natural Rights

One of the classic liberties protected by the constitution is religion. This protection appears in the Bill of Rights as the first amendment to the constitution. We have taken the separation of church and state for granted since the Bill of Rights, although there was recognition of the need to protect religion from government before this. But it is interesting to ask what particular status does religion have as a right that is protected? Is it a special kind of right?
Typically religion is lumped together with freedom of consciousness and freedom of the press, at least that is the way the constitution categorizes these rights. But behind this categorization that seems so self-evident to us now is an interesting theoretical puzzle and historical story. At issue is the question of whether religion should have any special status as a right over other rights? In other words, if the rights of life, liberty and property are taken as natural rights, what is the right of religion?

On the classic notion of natural rights of course, the basic right is the right to life and the other rights are derivative, such as the rights to property and liberty (right not to be enslaved), which are fences around and extensions to the right to life. But religion is not mentioned as a natural right in John Locke's Second Treatise on Government for example or even in his Letter on Toleration. Locke clearly thought that the state should not get involved in matters of religion. But he never said that this protection was a natural right. Instead, he presented it as a strong recommendation about how the social contract should be put together. The social contract should stay out of people's religious business because government should be focused on civil ends and religion is focused on salvation, which is not the business of civil government. Thus on one reading of Locke, religious freedom is strongly recommended as a foundation for a social contract, but it is not a natural right. It is a strongly recommended civil right, but civil rights derive from decisions at the social compact, not from nature.

But it is not immediately clear why religion should have this special status? After all, when the social compact is made, soccieties have to come to agreement on how their government is to be structured and put in place a process for governing that takes account of the people. Thus the social contract was understood as an agreement that represented the majority of the people's views about how to be governed, as long as the basic rights of life, liberty and property were not sacrificed. And it was understood that in agreeing to enter into society a person's freedom was going to be curtailed because the majority would agree to a set of rules which would limit the freedom of individuals.

It is here that the question about religion arises. On a theory of natural rights, why should freedom of religion have a special status over other types of freedoms that a society considers. In other words ,if at the moment of the social contract, a group considered all the different freedoms to embrace, why should religion have special consideration? There are a vast number of freedoms that a society does not allow, for laws are intended to limit behavior in a way that protects the rights of others. And so by definition there is not total freedom in a society, but only a specific set of freedoms that have been endorsed by a given society with its social laws. For example, there are rules about how fast we can drive or how loud we can be in public or about how to transfer property or what constitutes a contract and so on. Why should religion not be regulated by law of a society when so many other activities are regulated?

One answer is probably historical. The whole notion of natural rights and of the social contract arises in a century that had witnessed religious wars among groups of Christians. It is arguable that the theories of the state that emerge in the seventeenth century were at least in part an attempt to decide how Christians of various varieties could live together in one state, without the rulers imposing religion on the members of society. Thus, religion gets a special exemption for its ability to generate social conflicts. And this is due arguably to the fact that religion is a symbolic system of ultimate meanings. Because people believe religious commitments are about ultimate matters, they are willing to go to war to protect those commitments. On this reading, then, religion is a special kind of protection because of its nature as an ultimate system of meaning that can rip a society apart.

There is a second answer that is coupled with the first. Those who wanted to separate Church and State conceived of religion in Proestestant terms. If one reads Locke's definition of religion, for example, religion tends to be a set of beliefs about salvation. Now this notion that religion is beliefs (a view of religion that still popular in the States for example) rests on a Protestant conception of religion. For what Luther and subsequent Christians did is argue that religion was an inward matter, not a matter of practice or outward works. Their aim in making those arguments was against the Roman Catholic Church. But in shifting the definition of Christianity to inner life, and not works or practice, they shifted the definition of religion. It is this definition of religion that is guiding the assumptions of Locke when he writes about religious toleration. Religion tends to be inward and not external. Because it is internal, Locke can more easily argue that it is a matter between a person and God and not a civil matter. The same assumption is evident in the first amendment. Separation of church and State is categorized with freedom of press and ability to express diverse views.

But had religion been thought about differently, and many scholars of religion for example see religion as not just a set of beliefs, but a whole social system with ways of life and pratices, it becomes much harder to argue that religion should be separated from government. For if religion is a set of practices, and not just beliefs, then the question of how my religious practice, as an act in the world, can affect your freedom becomes much more profound. As examples consider for example the following: my religion tells me to slaughter goats in my home, but society may think this is a health hazard. Or my religion tells me to take drugs that society has banned as harmful to society. In other words, if religion was thought to be a set of practices aimed towards salvation, the potential conflict between my religious practice and the rules that the majority wanted to implement is much more of a potential issue. The debate about whether Darwin should be taught in public schools or a mandatory part of education is an example where specific religious beliefs come in conflict with a more general social practice. Can jews be fired for not working on Saturday when the rest of the business works on Saturday?

I am not arguing that the separation of Church and State should be abandonned. I derive from a people who have been persecuted from religious persecution. But I am suggesting that the issue is more complex than most people think. For it is always possible that some religion has religious beliefs and practices that are or come into conflict with other laws and rights that others want to protect.

For example, one can coneive a religion that arises that has a law that says one much drive at 80 mph. But society in general has set the speed limit at under 65 mph for safety reasons. Does religious practice always get to override the general rules implemented by the majority. I would argue that it does not, for there are always new forms of religion that can emerge and contest the norms.

While it seems simple to protect the diversity of religious belief, it is much more complicated to protect the diversity of religious practice. Any practice can always come in conflict with the established norms and not every practice of everyone can be protected, for that would mean no laws, as the theorists of liberty understood. We need therefore at least two different theories of the separation of church and state. The first that treats religion as belief, has no real issues. We shouldn't be telling people what to belief-that's easy. But the question of whether we allow any religious practice is a different matter. I'm not arguing that we should abandon the separation of church and state in this sense, only that it presents a different problem. And it presents the problem of majorities and minorities. Can majorities legislate against minorities? In what situations should majority decisions be accepted and in what conditions should majority deicsions be limited and examined. This is another whole topic that goes to the core of the debate over what the Constitution was trying to see. One can argue that religious practice is one area where society should have a higher standard than "majority rules" to override the minority. But whether that means that "minority rights" always trump the majority is another tricky question.