Skip to Content

Support MinnPost

MinnPost logo Year-end member drive

Be the one who makes it our best year ever!
Only 56 more members needed to set a record and secure a $5,000 challenge grant.

Gun rights in the 1780s and today

Battle of Guilford Courthouse, March 15, 1781
Illustration by Don Troiani/National Park Service
American militia firing at the British infantry from behind a split rail fence during the Battle of Guilford Courthouse, March 15, 1781.

Second of three articles.

The original U.S. Constitution, as drafted in 1787, made no mention of gun rights and guaranteed relatively few other rights.

The Constitution actually granted the federal government considerable power over the state militias, such as power to arm and discipline them and to call them into federal service to repel invasions or suppress insurrections. (It’s all in Article 1; Section 8.)

Anti-federalists -- those who opposed the ratification of the Constitution – argued that the powerful new national government the framers sought to create jeopardized many important rights of the states and the people, including the independence of the state militias. If Congress had the power to arm the militias, did it also have the power to disarm them? Could the national government call up a state’s militia and send it out of state to suppress an insurrection elsewhere? (Apparently, it could.) Would a state whose militia had been thus nationalized and deployed elsewhere be defenseless? This was a special concern in southern states where the militia had duties as slave patrols, to capture runaways and to protect the white population against the possibility of a slave insurrection.

During the hard-fought campaign for ratification, James (“Father of the Constitution”) Madison and other federalist leaders proposed a compromise. If the states would ratify the draft as it stood, the leaders of the first Congress would propose constitutional amendments to explicitly guarantee that the federal government could not trample upon basic rights and civil liberties, such as freedom of speech, press and religion and the right to keep and bear arms. Those amendments, the first 10 ratified soon after the Constitution took effect, are what we call the Bill of Rights. The right to bear arms was the second one ratified.

As you know from the previous installment, it 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.”

Several of the state constitutions protected the right of the militia to be armed, which modern gun-rights advocates cite as evidence that owning guns was considered as fundamental to liberty as freedom of speech. Many of those state provisions refer explicitly to a right to have guns for protection of one’s home or for hunting. If the federal amendment had picked up some of that language, it would be much easier to argue that the federal right covers such individual self-defense needs and hunting pursuits.

But the fact that the first Congress left out those references, even though they were present in some of the state constitutions, is a talking point for those who now argue that the federal right to own a gun was fundamentally tied to the militias and might not guarantee the right of non-militiamen to have guns unrelated to militia work.

Nonetheless, the Second Amendment was quickly approved by the necessary two-thirds of both houses of Congress and then quickly ratified by the requisite three fourths of the (then 13) states. It soon became largely invisible for two centuries, during which it was seldom the key point in a lawsuit and never the reason for any law to be struck down. Not until 2008 would the U.S. Supreme Court squarely face the question of whether the militia language at the beginning of the amendment meant that the right to bear arms was tightly connected to membership in a militia.

In the meantime, the concept of a state militia, as it was understood at the time, would have essentially disappeared.

State militias

In the 1780s, state militias were a vital part of the national defense. In many states, every able-bodied male (an exception would be made for members of pacifist religious denominations like the Quakers) was expected to have a gun, which he would acquire and maintain at his own expense, and to be available to be called forth to defend the state or the nation. Militias of this sort played a significant role in winning the war for independence, although ultimately the colonists developed a trained professional army (led, of course, by Gen. Washington.) But that army disbanded after the war.

The assumption in the 1780s was that the national government would not have a large standing army in time of peace and that the state militias would remain the backbone of the national defense. In time of war, a national army might be created for the duration of the war. The U.S. Constitution explicitly authorizes Congress "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."

It’s hard for contemporary American to grasp the degree to which 18th-century Americans saw themselves as citizens of their states more so than the nation. And, in fact, if you read the kind of statements that led to the adoption of the Second Amendment, it’s clear that many of the anti-federalists did not trust that the new national government would respect the sovereignty, freedom and independence of the states. Many anti-federalists noted that the Constitution did not bar the national government from building up a permanent standing army, an army that could, if you let your imagination go down this path, be used to bully, dominate and even tyrannize the states.

Believe it or not, among the ideas that the anti-federalists floated for changes to make the Constitution more acceptable would be an amendment that would simply have barred the United States from having a standing army. Think for a second about the impact that would have had it if been adopted. But that idea, which was formally proposed, did not make it into the Bill of Rights.

During the campaign for ratification, the pro-Constitution Federalists urged their doubters to bear in mind that the militias already provided the necessary check against the threat to the states from a federal standing army. In one of the famed pseudonymous essays on behalf of the ratification that later came to known as the “Federalist Papers,” (#46), James Madison sought to assure readers that any U.S. Army that sought to oppress them would stand no chance because: “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.”

Elbridge Gerry, a member of the Constitutional Convention who refused to sign the draft, said in the debate of the First Congress over what became the Second Amendment: "What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty."

Tune into this line of thinking and you begin to understand why the constitutional language that gave the national government substantial power over the state militias -- including, perhaps, the power to disarm them, as anti-federalist Patrick Henry suggested at the Virginia ratifying convention -- was alarming.

On the contemporary far right, you can occasionally hear talk that resonates with the ideas above. But to most 21st century Americans, it borders on crazy talk for several reasons. The United States has a standing Army (and Navy, Air Force and Marine Corps) of magnitudes and capabilities far beyond anything the founding generation could have imagined. It operates a global network of military bases scattered around the world. The United States is in a state of essentially permanent undeclared war with various nations, elements and what our presidents like to call “regimes,” which is a euphemism for governments we don’t like. Some of us are alarmed by this development but not because we imagine that this standing military might be used against the states that make up the U.S.A.

Those who care about such things may be vaguely aware that the official state militia system went away long ago and was replaced (in some of its roles) by the National Guard, which has chapters in every state and which serves as a source of troops for civil emergencies within the states and for troops who can be called into active duty by the U.S. military, as many were in the Iraq war. (Some states still have organizations militias, too.)

We can no longer relate to the utterly ludicrous (in 21st century eyes) idea that not only those hardy souls who have signed up for the National Guard but all able-bodied men are expected to be armed and ready for military action and, even more ludicrous, that such a force would have any chance if it came into conflict with the actual United States Army, Navy, Air Force and Marines.

In fact, as I noted above, the Constitution explicitly authorized Congress to call forth the militia to suppress an insurrection, which suggests that a rebellion against federal authority by one state would be put down by the militia of other states under federal control. (This actually happened during the George Washington Administration when Washington mobilized elements of four state militias to put down the so-called Whiskey Rebellion, but the rebels all scattered before the troops could get there.) It is also perhaps worth noting that the Constitution itself (Article III, Section 3) defines the act of "levying war" against the federal government as treason. The idea that the Constitution intended to set up battle between federal and state military elements is a muddle at best. I'm somewhat convinced by the Madison Federalist Paper quote above that the state militias were intended to provide a check against the danger to liberty represented by a standing army, but he seems to envision a circumstance ("half a million citizens with arms in their hands") in which all of the state militias have combined to turn back some effort to impose federal tyranny.

Muskets and single-shot cannons

It may have been the case that, in the 1780s (when the chief weapons of war were muskets, single-shot cannons that took forever to reload, flintlock pistols and cutlasses for hand-to-hand combat), in the unlikely event of a war between the U.S. military and the state militias, the sheer numbers of men making up the state militias would have given the militia side some hope.

But now, when the U.S. military would start the conflict with pretty much a monopoly on the aircraft carriers and the aircraft, and the cruise missiles and the tactical nukes, and the attack helicopters and the battleships, and the drones and the laser-guided – OK I’ll stop without even mentioning nukes.

In the circumstances of the 21st  century, in the unlikely event that the president and the Congress was contemplating using the U.S. military to conquer, oppress or otherwise impose the will of the federal government on one or more or all of the 50 states, I am prepared to stipulate that, to the extent that the purpose of the Second Amendment was to assure that the militias of the several states would be able to deter or repel or defeat the United States military, that purpose is obsolete.

What the Supreme Court would decide 219 years later that the Second Amendment meant 219 years earlier will be discussed in the next installment of this thrilling miniseries. For the moment, let me just wrap this one up by suggesting – with full knowledge that the suggestion borders on sedition -- that there is something fundamentally strange and I would say crazy about worrying too much what the words and phrases “keep and bear” and “arms” and “well-regulated militia” meant to James Madison or Patrick Henry or the very small number of ordinary white, male Americans who voted for the state legislators who ratified the Second Amendment in 1790.

Thursday: The U.S. Supreme Court and the Second Amendment.

Get MinnPost's top stories in your inbox

Related Tags:

About the Author:

Comments (57)

The power pyramid has been inverted since 1780

It reads, the right of the "people" to keep and bear Arms. Please keep in mind the original hierarchy had the People at the top, then the State and the Federal government at the bottom of the power pyramid. The rights of the State and Federal government came from the people, not the other way around. Today's big government believes it has the right to take away the rights of the people, just like dictators, Communists, Socialists, Marxists, etc.

Let's remember who the People were:

White, male landowners of a certain age. Our understanding of "the People" has changed and our Constitution has been changed to reflect that fact. Perhaps it's time to change the 2d Amendment as well, to provide clarity and to render it pertinent to the society in which we live today. From my perspective, that means putting military grade weapons in the hands of the military and eliminating high-capacity, high-powered long guns capable of being disassembled and quickly reassembled for the purpose of concealment.

By the way, under our Constitution we ARE the government, a government authorized to do whatever the majority determines we should do, through our representatives, provided that it does not exceed an express constitutional limit on our joint powers or impermissibly infringe on our individual rights.

If you want to change the second amendment go ahead and try

Try to change it. Get 38 of the 50 states to ratify it. You will find that you MAY be able to get two or three states to go along with your citizen disarmament plan but the rest of the states will vote for freedom and liberty which includes the right to bear arms. I may go along with your idea if the guns are also taken away from the police and military but that would be stupid wouldn't it because criminals and murderous regimes would still have them wouldn't they?

Hyperbole

He didn't say anything about "citizen disarmament". He suggested changing the 2nd Amendment to put military grade weapons in the hands of the military (only). Personal ownership of handguns and hunting weapons would still be guaranteed. That is hardly disarmament, and in fact is quite reasonable. As for taking weapons away from police and the military, that's just silly talk.

Hyperbole does not strengthen your argument.

Rights

Yes, it mentions the rights of we, the people to bear arms--in relation to a well regulated militia. It's pretty safe to say that most gun owners are not a member of a well regulated state militia, namely the National Guard these days.

A little nit picking

During the Revolution war militias played a steadily decreasing role due to their unreliability, the Continental Army had to be created in order to win the war, and off course the professional soldiers of the French Army played a significant role. While the Continental Army was disbanded after the war, the nation did NOT rely entirely on militias for defense. A regular Army and Navy were maintained, and and dozens of forts were constructed by the federal government, many off them manned by Regular troops. Furthermore congress established West Point in order to train professional Army officers in 1802.

The war of 1812 repeated the revolutionary experience. The nation went to war unprepared and started out with large militias contingents but things went badly. Both the regular army and the militias proved inadequate in the first year of the war. General Jackson had a particularly difficult time with his militia down south. As the war went the Regular forces were increased and played a larger part in the war. And of course there was the Navy which had no militia component at all. A US army history concludes:

"The militia, occasionally competent, was never dependable, and in the nationalistic period that followed the war when the exploits of the Regulars were justly celebrated, an ardent young Secretary of War, John Calhoun, would be able to convince Congress and the nation that the first line of defense should be a standing army."

Another interesting lesson of the War of 1812 was that the rifleman actually played a very small part in the battles. Artillery and engineering emerged as the dominant factors in military campaigns. In other words, a bunch of guys with rifles didn't win wars.

Now it's true that the war of 1812 was fought after the Second Amendment was ratified, but the idea that militias were going to be the primary "national" defense is a dodgy proposition. Many people forget that the United States declared war on England in the war of 1812, we were NOT defending ourselves. The founding fathers did not see a great need for defense of any kind in the aftermath of the Revolutionary War. They correctly observed that due to geography there was little threat of invasion, and logistics of the era made a sustained attack or invasion incredibly difficult. I wouldn't assume that the founders believed that militias were militarily proficient, more likely they assumed it unlikely they would be necessary for national defense. And they were right, since the War of 1812 (which we started) the United States wasn't invaded until the Japanese landed on some Aleutian Islands during WWII. The framers didn't see a great need for national defense in the first place, so to claim that militias were backbone of that defense is kinda like claiming my garden hose is the backbone of the fire department.

As for these "able bodied men" militias, in practice no actually set up such militias. Every state militia was in practice comprised of volunteers. After the Revolutionary war the militia weaponry was maintained and stored in armories. Regardless of any state constitution the idea that a bunch of guys with whatever guns they had on hand could show up and form an effective military force was absurd for sooooo many reasons. Madison knew this.

At any rate, the text of the Second Amendment clearly states that the function of the militias is to defend the state, not overthrow it.

The Founding Fathers were

The Founding Fathers were kind enough to make their intent crystal clear in many of their writings:

Alexander Hamilton: [i]f circumstances should at any time oblige the government to form an army of any magnitude[,] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

Noah Webster: Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.

George Mason: "to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia." "Who are the militia? They consist now of the whole people, except a few public officers." Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.

Patrick Henry: "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined."

Samuel Adams: "Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures."

Thomas Jefferson: "No freeman shall ever be debarred the use of arms

The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, ... or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press."

John Adams: "Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defense, not for offence."

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -Thomas Jefferson

"The beauty of the Second Amendment is that it will not be needed until they try to take it." -Thomas Jefferson

"A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government."- George Washington

Quotes don't trump the Constitution

Michael,

Most your quotes pre-date the constitution or come from ant-federalists who lost the debate or Jefferson who had nothing to with the drafting or adoption of the Second Amendment. NONE of these quotes actually reflect the text of the Second Amendment. Everyone except Jefferson eventually signed off on a constitution that defined armed insurrection as treason and made it illegal.

The function of the militias was to defend the government of the people, not attack it.

Right!

People say very different things when their on the outside trying to get in, and then when they do get in.

"Treason doth never prosper:

"Treason doth never prosper: what's the reason? Why if it prosper, none dare call it treason." - John Harrington

At the time of ratification the militia was the whole body of the People. The People have a right to keep and bear Arms that cannot be infringed by anything other than another Amendment.

Sure the Federal Government could call up the militia's, but to say they were only used for the defense of the government is false. Militias were much more about protecting the people than the Federal Government, which is the whole point of not having a standing armed force which would owe its allegiance to the Federal Government.

They were used to protect against Indian raiding parties, perform law enforcement duties and were there for the self defense of the People.

When they wrote the constitution they had just gone through the Revoluionary War. Every British Subject that chose to fight for America was a traitor. Even so, they enabled the Federal Government to be able to put down insurrections. Otherwise there would be chaos. They hoped that using the constitutions ability to be amended and separation of rights and powers between the People, States, and the Federal government that there would be no need of armed insurrection.

They however put in the Bill of Rights the Second Amendment. Because they knew people being armed was a counterbalance to the ever increasing power of the Federal Governement as they had just seen in their own Revolutionary War with Britain. This right of the People is a Balance to the Power of the Federal Government.

Daniel Webster said

"When we speak of preserving the Constitution, we mean not the paper on which it is written, but the spirit which dwells in it. Government may lose all of the real character, its genius, the temper without losing its appearance.
Republicanism, unless you guard it, will creep out of its case of parchment, like a snake out of its skin. You may have despotism under the name of a Republic.

You may look on a government and see it possesses all the external modes of freedom, and yet finding nothing of the essence, the vitality, of freedom in it; just as you may contemplate an embalmed body, whereart hath preserved proportion and form, amid nerves without action, and veins void of blood"

Thomas Jefferson maintained that "The natural progress of things is for liberty to yield and government to gain ground."

I am not for armed Insurrection. I Am for the Rule of Law. The federal government ignores the constitution left and right and uses the justification of supreme court "opinions". They should use the Supreme law of the land (the constitution) and amend it if they want more power.

Where Does Their Fear Come From?

Underlying this entire discussion of gun rights is the unacknowledged reality that some of our gun-loving friends are very, very afraid deep within their souls.

Oh, they talk tough, bully others, throw their weight around (figuratively), and act in generally threatening ways,...

ways which go far beyond what a healthy person would find useful or necessary under the routine circumstances of our lives,

but for many of these people, their firearms become an emotional/spiritual substitute for the aspects of their personality which would have allowed them to feel strong, in control, in charge of their own lives, and able to do what life might demand of them.

With firearms in their possession, they feel strength and wholeness they would otherwise lack. Without their firearms, they feel weak, incapable of control, easily pushed around by others, and thus unable to meet life's demands when it would ask those things of them. They also feel heartache and deep emotional pain and insecurity. Those same feelings lie just beneath and behind their fear of having those firearms taken away.

They would suffer deep and powerful grief (with it's attendant depression, anger, and even the desire to mingle anger with bargaining to create revenge-based actions) if their firearms were taken away. A substantial minority of our "law-abiding" friends and neighbors might be likely to cast the law aside in response to that grief.

As a compensation for the pieces of their personalities (literally or figuratively) beaten out of them by those who raised them, they use their guns to fashion themselves as warriors who can control any situation and conquer any foe.

But in psychological terms (Jung and Pearson) they are not healthy warriors (the highest form of warrior being a diplomat, the second highest being those who fight to protect others), but "Shadow Warriors." Because they are operating out of the shadow side of their psyches in this area, they unconsciously create circumstances which allow them to battle others and seek to create a world which would run them up against all the things they most fear.

It is for this reason that we must NOT allow the most vehement (though sometimes soft spoken) shadow-warrior types to set state and national policy regarding firearms. If we, as we have done with the NRA for the past thirty years, allow them to have their way, they will bring us closer and closer, and eventually force us ALL to live in exactly the world they claim to be desperately trying to forestall,...

eventually taking us full bore into any one of the violent dystopias that fill science fiction novels and movies, while remaining completely convinced that they were right about the need for all of us to be armed to the teeth,...

and completely UNaware that it is they, themselves, who have brought all of us into the exact world they most feared would become reality.

The fears which arise from within them, fears inflamed and exploited by the NRA and our nation's arms and ammunition manufactures (for their own profit), are another aspect of their operating out of the shadow side of their warrior personality aspect.

Those fears have no basis in reality, but, if we allow those who harbor such fears (and those politicians who are afraid of them) to structure state and national policy based on those irrational fears, they will create a world which MAKES those fears a reality for ALL of us.

Our gun-loving friends and neighbors who rely on firearms in this dysfunctional way have one more symptom of which they, themselves are unaware. Some of them are addicted to their guns, and just as is the case with other addictions, the sense of safety and satisfaction they invest in their guns dissipates over time. Then they need MORE guns and bigger guns, and more powerful guns. In the end, they can NEVER have enough. They will NEVER feel strong enough or safe enough.

Coupled with this, their shadow warrior, then, drives them to create circumstances in which they have the opportunity to USE those guns in violent ways. Killing something is, for these folks, the most violent, and therefore, most satisfying use of their guns. Though a small minority of the gun-loving folks, these folks can be very dangerous to all the people around them and to law enforcement personnel.

I suspect it is their (unconscious?) fear of people such as these that causes some of our politicians to set policy in ways that seek to keep such people happy; ways which are ultimately so destructive for our society in general.

Agreed

This fear actually borders on hysteria as near as I can tell. Look at the references to communism and fascism. As if universal background checks or gun permits will usher in some kind of dictatorship. The one that gets me is the current references to some kind of "Kingdom" as if Obama is going to declare himself to be some kind of King.

I think one thing that feeds this fear is a serious and deep failure to understand the actual nature of their own government. They don't understand that they live in a representational democracy with a constitution that's survived longer than any other government on the planet.

perhaps, perhaps not

Arguably the Haudenosaunee confederacy, which many cite as an inspiration to the US federal form of gov't, is much older than the American gov't. Not judging, just saying.

Meland?

Are you suggesting Europe is not the center of the universe? Surely you jest?

Fear? Insanity?

I own a fire extinguisher. Call me fearful or crazy but I have it just in case there is a fire. I also own a gun. I am not crazy or fanatical I am a realist. In fact I have a doctorate and I am a former college football player but there are bad people out there who may attack me or my family. I may need to use my fire extinguisher some day and I also may need to use my gun someday. I hope that neither one will ever be used but I have them just in case. You can choose to have your own fire extinguisher or not. You also may choose to own your own gun or not but please don't tell me what tools or insurance I can own.

Tools

Are there other tools that will accomplish the same objective (protecting your family) that don't also carry the same risk (maiming or killing your family)? Would a taser accomplish that goal? It's non-leathal (most of the time), which gives you a lot more options should the burglar turn out to be your granddaughter trying to get in the patio door, as happened to the poor priest recently.

As with any tool, the

As with any tool, the situation will determine how effective a particular tool is; each tool will have its own pro's and con's. There are some situations where a taser, bat, knife, gun, or whatever will be more or less effective than other options available, but there are a multitude of situational and operator factors that will change from situation to situation and person to person to determine what the most effective tool will be. What's most effective for one person, may not be as effective for another.

Including the tool for mass murder

And of course it goes without saying that you could select the best tool for attacking an elementary school. Ya know, a mortar and a tank would be good tools as well. What scoundrel has decided we cannot have access to them!

It is interesting to note

It is interesting to note that in U S v. Cruickshank that the Constitution does not guarantee the right to bear arms 'for a lawful purpose"

(quote)

The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=92&invol=542

(end quote)

In Presser v. State of Illinois, private militias or armed groups unsanctioned by government are specifically prohibited:

(quote)

The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=116&invol=252

(end quote)

And the states rights to decide the matter is reaffirmed:

(quote)

'We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the United States; that, by virtue of this, it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends, where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated,' namely by the constitution and laws of the United States.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=116&invol=252

(end quote)

So it would seem that the gun issue is squarely in the state's (eg. Minnesota) hands. But in a nice twist, the state, in turn, cannot pass acts that would deprive the federal government of a peoples militia:

(quote)

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=116&invol=252

(end quote)

The final take-away is that the second amendment was specifically tied to the idea of the right of arming a governmental controlled militia, whether as needed by the individual states or the US, and the prohibition of placing rules to obstructing the arming of an effective governmental-controlled militia. In the absence of a governmental call for a state militia or a national militia, there then is no other possible legal militia-- the second amendment lies dormant and is not germane to the issue of private gun use or possession.

In the end, private gun possession and use is constitutionally a state (eg., Minnesota) issue, with federal input based on the interstate effects of Minnesota's decisions.

We can pretend that things mean what we want, or we can try to disentangle meaning out of a tangle. We can pretend that the federal government was not viewed with distrust at the time of this countries founding and that states were not fiercely protective of their prerogatives and slide their relationships into a new harmony which was rarely the case.

We make law with the Constitution we have, instead of the Constitution we want.

I believe

that your final quotation from Presser is dicta, as the next sentence reads:

"But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect."

Other than that, I tend to agree with your ultimate conclusion:

"In the end, private gun possession and use is constitutionally a state (eg., Minnesota) issue, with federal input based on the interstate effects of Minnesota's decisions."

I would add, however, that neither state action nor inaction precludes federal action, whether based on the Commerce Clause or some other power granted to the federal government.

Nice work!

It boils down to 'the rule of law, not men (or guns)'.

Huh?

"It reads, the right of the "people" to keep and bear Arms. Please keep in mind the original hierarchy had the People at the top, then the State and the Federal government at the bottom of the power pyramid."

It continually amazes me that so many Americans don't understand the nature of their own government. Today's government is a product of the constitution, and it's more representative than it was when it was ratified. You understand that universal suffrage didn't exist in 1787 right? Our government is a product of representational democracy, our nation is five times larger in territory, and our population is 1000% greater than it was in 1790. We have a big government because we have a big country, not because of communism.

My wife grew up in Argentina during the military dictatorship of the 1980s. When she sees people here complain about the "oppression" they suffer at the hands of our "big" government she just shakes her head and says: "You people don't have a clue." And she's right.

Opressive governments exist because they can

Power struggles have always existed and always will. One of the basic concepts the founders tried to implement with the constitution and the Bill of Rights, was to protect the people from a potential oppressive government in the future. In effect to create a balance of power that favored the individual and the States, in the event that the Federal government became oppressive. The right to protect yourself and your family only has meaning, if you have the means to protect yourself.

Reality

No one, absolutely no one, except gun rights supporters who wish to stoke fear through hyperbole, is talking about denying the right of personal ownership of handguns or hunting weapons. You have the means to protect yourself and your family, and no one is trying to undermine it.

As for resisting an oppressive government, reality intrudes. First, re-read the article. If you think a bunch of guys with rifles, of any type, could take on the United States military and succeed, you are simply mistaken. The imbalance of power is overwhelming. An ant taking on an elephant. Good luck with that.

More reality - *it will never happen*. Power struggles in the U.S. are resolved through politics, not force of arms. The U.S. government is not an alien entity imposed on the people from above. The people *are* the government. Our leaders are elected for defined and relatively short terms of office - they are neighbors and fellow citizens. The military is composed of citizen volunteers. I do not believe that the military would obey the order of any president insane enough to order them into action against the U.S. population. I simply cannot imagine any circumstance in which that would occur. Such a president would quickly find himself to be an ex-president. The whole notion that our government is some kind of alien entity trying to oppress us is baffling. It betrays a lack of understanding of our system and how it works, and a disturbing mindset that the individuals who express it are somehow separate from the body politic, which they must be prepared to fight against by force. Some, I guess, are simply sore losers. In our system, the majority rules, and the proper recourse for those who lose on a vote is to make their case to their fellow citizens and try again in another vote - not to take up arms. You win some, you lose some, but you don't declare war on your neighbors, or the government (which is composed of your neighbors), because you lost.

Want proof? Serious gun control is going nowhere fast, because of *political* (not armed) resistance. Democracy works. Stop trying to redefine it as fascist dictatorship.

It may be strange...

But it can't be avoided.

" there is something fundamentally strange and I would say crazy about worrying too much what the words and phrases “keep and bear” and “arms” and “well-regulated militia” meant to James Madison or Patrick Henry or the very small number of ordinary white, male Americans who voted for the state legislators who ratified the Second Amendment in 1790."

No matter what you want to do with the Second Amendment, it cannot be ignored. Nor can you merely declare it to be obsolete, you have to prove that it is, and THAT requires a debate about its intent and the meaning of its language. We cannot go off and decide the Second Amendment is obsolete because our Supreme Court is making law based on it, and that law may well decide whether or not we have to live with the occasional mass murder.

We have bigger weapons...

Those who fear the tyranny of the Federal government (thus the need to arm ourselves) seem to forget we, as a people, have a much stronger weapon to fight alleged battles with our government's military. It is called: the ballot box. And it has worked to preserve our democracy (through many crisis) for over two centuries. I would urge these folks to spend more time on making sure we have the right elected officials rather than prepare for a battle that will not take place...and they could not win anyway. That is what will assure our security as a nation.

How's the ballot box working for the Iranians?

The easiest way to take over a country is by taking over the election process. Do we really get to choose who we elect? Under the current two party system, the choices are often bad and worse.

As I noted above

the ballot box is exactly what some of these people fear; a perversion of 'the tyranny of the majority'.

The 2nd amendment

In English, a comma is generally used to separate a dependent clause from the independent clause if the dependent clause comes first: such as: 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. The independent clause therefore stands alone as a sentence. The right of the people to keep and bear arms shall not be infringed. Everybody keeps hanging on to the dependent clause in the sentence, but that could be replaced, such as: A possibility of your house being burglarized and your family injured, the right of the people to keep and bear arms shall not be infringed. The meaning of the independent clause is the not changed. Another example, lets modernize it; A possibility that you or your family may be harmed by gang violence on the street, the right of the people to keep and bear arms shall not be infringed.

Based on the dependent clause in the 2nd amendment it is clear that it meant that the right of the people to keep and bear arms shall not be infringed is not because they might be needed as a militia, but because a militia could be used against the people. The right of the people to keep and bear arms shall not be infringed, stands alone as a sentence and is quite clear. What is stated in the dependent clause is irrelevant.

Except that

the militia ARE the people.

Grammer distortion

The Second Amendment specifically states that the right to bears to arms is about defending the state, against aggression, not your home against burglars. The second amendment isn't about the right of personal self defense. The Constitution is tells what the government can do and how it will function, it's not a blue print for our personal lives.

THEY WERE RIGHT!

" it’s clear that many of the anti-federalists did not trust that the new national government would respect the sovereignty, freedom and independence of the states. Many anti-federalists noted that the Constitution did not bar the national government from building up a permanent standing army, an army that could, if you let your imagination go down this path, be used to bully, dominate and even tyrannize the states."

They were right. We cannot trust all power in a central government. Our federal government does not respect the sovereignty, freedom or independence of our states. The federal government is bullying and tyrannizing the states. I for one am glad the founders understood how important a check the right to bear arms is on tyranny and despotism!

States and Rights

Here's just a little background on the dynamic of the states and federal government to help bring it into perspective.

Before the Civil War we were more of a confederation of states--a loose affiliation if you will. Each state and bank could and did print its own money, which was a big problem for people and corporations who were trying to conduct business across state lines. A bank in one state wouldn't necessarily know if a note issued from another bank was any good, so chances are they wouldn't accept it. Or, if they did, there would be a fee issued to complete the transaction.

Each town would maintain its own clocks, which made running the trains on time difficult. Rather than have a central time zone, one town would be at noon while the one a little farther west would be 11:58, a few miles west yet 11:57, and so on down the line. That made it a challenge to work up a timetable for the trains and make sure they not only arrive on time, but also so you don't have two trains trying to use the same track at the same time.

Those are just a couple of small examples of the difficulties of using regional standards back in the day instead of standards set at a national level.

After the Civil War we had a stronger federal government and a lot of these issues got resolved. That's when we stopped being a loose affiliation of states and became the United States of America in more than just name.

So you can see there's a bit of a balancing act between states rights and federal obligations to find the right solution that works well for society.

Government

A quick question for you: what is it that makes the federal government so bad while at the same time a state government is so good? Aren't they both a type of government? Is it the scale of one as compared to the other? If so, at what point is a government considered too big? Is it the number of people employed by the government or the types of power that government has? If so, what happens if a state government bumps over that limit in terms of employees and/or power?

Societal Issue

Ignoring the 2nd Amendment for a few moments, let me take a stab at the greater issue that's at play here.

One of the main reasons we're in this debate in the first place is we don't like to see our fellow citizens murdered. There have been a lot of mass shootings in recent decades and people would like to see them stop. Society has a vested interest in a peaceful environment as that makes it easier to get the kids to school, conduct business, and grocery shop. If that environment becomes unstable and unpredictable because you or your kids may get popped off at the local elementary, then the populace naturally turns to its representatives and asks them to come up with a solution to the problem.

The government can not protect people from themselves

Any violence sucks. On Monday bombs killed Americans and there are hundreds of ways to make bombs from hundreds of materials, many of which are readily available things we use day to day. Banning guns will not stop violence and the government can not stop violence. Ask any police officer is they can protect you against violence in your own home or in public. You can even make your a basic gun with parts you can buy at the hardware store. The odds of a gun owner harming anyone are much lower than the odds of being harmed on any motorway or being harmed by mother nature.

Protection is one primary function of the government

Please, we're not trying to protect mass murders from themselves, we're protecting ourselves from mass murders. And THAT's exactly the role of the government. THAT why we have a military, police, etc.

Before a solution can be

Before a solution can be chosen, we must first determine what the problem is. Ultimately, I think that is where we are running into problems, the populace cannot agree what the problem actually is. For example, I see the shootings as a cultural problem and not a gun problem.

Well here goes.

I've been through a class on Constitution 101....

You're assertions;

"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;"

that the government is the militia is incorrect. The "PEOPLE" are the militia and the government can control it's armies served with the duties of protecting the United states as a whole. However the people have a right to bear arms and any other means to protect themselves from a tyrannical government.

I've been impressed with the "Word-smithing" that is going on in an attempt to redefine the English language. All these particular words and sentence constructs need redefinition so as to find a legal means to dispose of the 2nd amendment because it's "outdated". In my opinion, the English language has not changed. What has changed is some people's inability to understand parts of basic English.

Contitution 101

Unfortunately Mr. Kline you failed to learn the difference between enumerated and unenumerated rights in you Constitution Class. The Constitution consists of enumerated rights attributed to the government, not natural rights purported to belong to "free people". It's not wordsmithing, it simply text.

To Doan...

I quickly remind you, America is NOT Iran. We have the longest standing democracy in the world; I ran has none.

Why do we have the longest standing democracy?

Americans have more personal freedoms than other nations. We should and do protect and cherish those freedoms. Personal freedoms include the right to own property and protect ourselves and our families. The government technically doesn't own anything and doesn't produce anything, it is just a shared expense.

Why do we have the longest standing democray in the world?

Because we have an enforceable constitution. The only guns have been involved the preservation of our democracy is when we put down armed rebellions. We owe our freedom to the fact that we have a nation of law, not the gun in your closet.

The KKK was pro gun control and its obvious why.

They wanted to oppress minorities. Taking away some peoples right, doesn't give other people more rights, it just gives the government more control and gives everyone less rights. I've read that there are more guns in the USA than people, so lets assume that there are over 100 million gun owners, that are law bidding citizens that are not a threat to anyone. Why should gun owners be a privileged class? If some people have the right to own guns, shouldn't anyone, that is not a threat to others, be able to own guns?

Problem is....

Most people who are killed by guns die either by their own hands or by the hands of friends or relatives. Gun deaths at the hands of strangers are relatively rate.
So, who is NOT a threat to others?

No, the problem is this simply isn't true

The KKK did not promote gun control.

As I Said Earlier

The obvious solution to the problem of too much damage (especially mass murders and far too many individual suicides and accidental shootings of family members),...

is completely unacceptable to our most gun-dependent friends and neighbors,...

because their need for their guns is NOT based on any rational consideration (despite their making pseudo-rational arguments),...

but based on their psychologically dysfunctional need to have one or more firearms in their possession to make up for missing aspects of their own personalities,...

aspects which were literally or figuratively beaten out of them by those who raised them,...

(who refused to tolerate independent thought or action in their offspring and punished those things far too severely),...

leaving those same offspring feeling weak, needy, and defenseless without their firearms.

The fact is that, short of having armed, awake guards patrolling your property, the presence of a gun in your home for your own defense is far more likely, by all the available statistical evidence, to end up harming a member of your family than any criminal who might pay you a visit.

If a criminal does pay you a visit, the likelihood of you successfully waking up and defending yourself, even if you have military or law enforcement training, is very slim indeed.

An intelligent, well-trained dog would provide a far greater security benefit with far less danger to your family members (as most rural farm folks know).

Meanwhile, rather than buying more and more guns and seeking to be allowed to buy and keep even MORE, our time, energy, and money would be far better spent seeking to alleviate the circumstances which lead to the societal dysfunctions that create the criminals among us and motivate them to criminal activity (which is not to say those criminals should not be held accountable for their actions once they have performed those criminal acts),...

not to mention seeking to ensure that those who are incarcerated receive the psychological help they need to recover from what their upbringing has done to them and the training they need to find dependable work when they're released so that prison returns to trying to create good, functional citizens again,...

instead of just teaching inmates how to be better criminals and treating them badly enough to be sure they're motivated to act out against society when they're set loose,...

which has been the overall effect of the badly mistaken and misguided, revenge-based, "get tough on crime" approach of the past few decades.

Nicely done, Eric

This is more discussion of a constitutional issue than I’ve encountered in decades. My own 2¢ remains much as it was yesterday: the 2nd Amendment represents one of the genuine mistakes of the Founders, not because of what it means or doesn’t mean, but because it was written so poorly that we’re arguing about its meaning two centuries later.

Some of the comments do remind me that among the saddest and most amusing sights I’ve seen in the past 20 years or so was a group of mostly middle-aged, paunchy, white males, waving semi-auto rifles and proudly carrying signs labeling itself as a “Tyranny Response Team,” as if they’d actually encountered tyranny, and truly believed that they’d last more than a couple of minutes if “regular” troops wanted to take them out permanently.

It appears that a legitimate “militia” doesn’t exist in any state, and since that’s among the primary justifications for the 2nd Amendment, I’d suggest that the absence of any sort of meaningful “militia” calls into question the basic validity of the amendment from the get-go. No militia, no need to arm the citizenry, with or without regulatory impediments.

That line of thought doesn’t necessarily prohibit the acquisition of firearms by individuals but it likewise does not grant the acquisition and/or possession of firearms the status of holy writ. Among the many interesting and sometimes erudite comments, the one that resonates with me best is that of Todd Hintz, which is not at all lengthy, and doesn’t rely on constitutional law. I think he’s on to something that’s too easy for gun advocates to pretend doesn’t exist.

Meanwhile, I look forward to some credible evidence, presented by Eric, or by one of our several commentators, that supports the notion (often stated or implied by gun advocates) that we’re somehow safer as a society because, unlike virtually all the rest of the civilized world, firearms of amazing variety and lethality are exceedingly easy to get. We require far more in the way of proven ability, and make the process of acquisition far more demanding in terms of time, money and attention, when the topic is driving an automobile, than we do when the topic is gun ownership.

I speak to that from some recent experience, having purchased a semi-automatic handgun and also having acquired a valid Minnesota driver’s license since moving here just a few years ago. Let me say it again: It’s a lot easier and less expensive to buy a gun than it is to get a driver’s license in Minnesota. Not to pick on Minnesota, that difference in ease and expense was also true in my previous states of residence. I find that difference curious.

Since much of the discussion has referred to federal vs. state powers and rights, it might be useful to consider the issue of attachment to one’s state in comparison to attachment to the country as a whole. When the Constitution and Bill of Rights were written, travel was both exotic and dangerous. Few people traveled often, and most people lived and died within a day’s journey (on foot or horseback) of the place where they were born. While I’ve never thought “states’ rights” was a compelling argument as an adult, it’s at least understandable that citizens in 1790 might well have had far more emotional and familial attachment to a state than to the country as a whole.

I suspect that for many 21st century Americans, that’s no longer the case. I’ve lived in 3 different states for extended periods. Should I travel abroad and be asked by someone in another country where I’m from (as if she doesn’t already know by the plaid Bermuda shorts, Hawaiian shirt and black socks), my initial response will not be “Minnesota.” I’ll start with “…the United States,” and work my way to the local area later. My loyalty is to the country, not the state.

Guns

I have to clarify for the record that I am indeed a gun owner, lest someone think I favor one side or the other. I collect WWII items and part of my collection are various M1, M1903, and carbine rifles. By today's military standards they would be pretty wussy, but if an outright ban on military grade rifles popped up these would undoubtedly get caught up in the net. Already we're looking at the prospect that 15 round magazines for the M1 carbine may get banned.

Even among my more conservative collector friends they find that a background check on all gun purchases is a very reasonable position, whereas bans on high capacity magazines and AR15 sales is silly. I've been through the reasons why at length in other articles on gun issues, so I won't go into them here again unless someone wants clarification.

For political make-up, I'm considered about as liberal as they come when looking at social issues. Rome didn't fall because Adam and Steve got hitched. On fiscal issues I'm pragmatic: for the most part I'm pretty conservative on finances, but there are times when you have to pry open the pocketbook to get a job done properly. My take is to stop whining about it and pull together to get it done.

I'm not sure I would be considered loyal to the country or the state. Reading Jared Diamond's "Guns, Germs, and Steel" has given me a bit of a perspective on how societies form, evolve, and are controlled, so I'm a little jaded whenever someone or something demands my loyalty. Wife excluded, of course. (I had to throw that in there as she may be reading this post. Hi, sweetheart!)

I wore white socks with black shoes yesterday? Does that make me an inverse Minnesotan?

Have you read

Jared Diamond's -Collapse-, which finishes the cycle?

Diamond

I'm still in the middle of "Collapse." Hopefully we're smart enough that we can construct a new cycle and not finish the old one.

Missing so far

is any discussion of who's in the national army that these militia are supposed to be resisting.
These are American citizens, better screened than most gun owners (the first psychological tests were developed for the military). There seems to be an implicit assumption that these Americans would cooperate with a government that attempted to establish a dictatorship or other form of tyranny. It would seem more likely that their first action would be to 'throw the bums out'. Why would self appointed militia men be more patriotic than the American citizens in our armed forces? So far, they seem to have done a good job of preserving the American way of life.
Of course, this is also an argument for reinstating the draft (disclaimer: my kids are to old for it), so that the military are even more representative of the citizenry at large.

Important issue, no concensus potential

It's clear to me that in order to protect the 2nd amendment "rights" of a vocal segment of our democracy, we'll have to accept the occasional mass murder, road rage incident, accidental death, etc.

Good series of articles.

I liked Eric's observation that:

"It’s hard for contemporary American to grasp the degree to which 18th-century Americans saw themselves as citizens of their states more so than the nation."

I'd add that 18th century Americans and Americans into the 19th and 20th century have had a hard time too but until the 14th Amendment was passed and the "Slaughterhouse Cases" decided after the Civil War, a human being was a citizen of a State first. That concept was in Article IV "privileges and immunities" clause.. The Fourteenth Amendment adopted a separate "privileges and immunities" clause that prohibited a state from denying the "privileges and immunities" to an "citizen" of the United States.The Supreme Court construed the "privileges and immunities" of the United States as a different set of "privileges and immunities" of citizens of a State.

All these arguments

have been presented over the years.

Again, I'll ask you to read Federalist No. 46. An armed populace provides a check against any standing army the national government can raise. It has nothing to do with fighting pitched battles against the regular Army: it's for a cost-benefit analysis.

I read Federalist 46

It says absolutely nothing about about state militias fighting federal armies. Rather Madison argues that a government composed of elected representatives from the state are not about to create a federal army for the purpose of attacking and dominating their own homes. Madison is arguing that democratic government they're creating cannot become an instrument of tyranny. And guess, what, after more than 200 it never has.

re: I read Federalist 46

Here's the quote, in case you missed it.

"Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."

Mr. Madison continues.

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. "

You stand corrected, Mr. Udstrand.