The legend is that the Second Amendment to the United States Constitution granted individuals the right to own firearms. In fact: that wasn't the issue at all; the right was a collective one, not an individual one, and it is best understood as the "Anti Redcoat Amendment," though no one called it that. It is worth remembering that the Constitution was drafted a mere dozen years after British Army regulars marched on Lexington and Concord to take custody of or destroy the powder, cannon and other military supplies of the well-organized and trained New England militia.
For the past weeks, the nation has been enthralled by the dramatic events in Tucson - the attempted assassination of Congresswoman Giffords, the killing of bystanders, including a federal judge and a nine-year old girl, and the question of what to do to prevent future incidents.
The almost universal observation by commentators is that we can't regulate guns because of the Second Amendment. Politicians compete to express the strongest support for "our Second Amendment rights."
In two recent 5-4 Supreme Court decisions, the Court determined that the Second Amendment right to "keep and bear arms" is a personal right.
So what was the "original intent" of the Second Amendment?
A good place to look might be the North Carolina ratification resolution. A North Carolina convention met from July 21st to August 4th 1788 and adjourned without either ratifying or rejecting the proposed Constitution. After ten other states ratified, the convention reconvened November 21st, 1789 and ratified. The convention appended to the resolution of ratification twenty declarations of rights and twenty-six proposed amendments. Several paragraphs of the declaration of rights as well as proposed amendments addressed issues later incorporated in the Second Amendment. These paragraphs make the original intent perfectly clear:
"DECLARATION OF RIGHTS....
"17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.
[This passage, drafted by delegates opposed to the draft Constitution, makes it perfectly clear that the passage on bearing arms reflects opposition to and suspicion of a standing army.]
18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the Laws direct.
19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.
[This curious declaration makes it clear that "bearing arms" is something soldiers do. Otherwise, why call attention to those "religiously scrupulous" of bearing arms and make provision for such persons to pay for others to "bear arms" in their stead?]
"IX. That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses.
[Another clear indication of opposition to standing armies in time of peace, unless the need was so obvious that it was supported by a super majority of both houses of Congress.]
X. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.
[Another provision intended to limit the ability to form standing armies except in wartime.]
"XI. That each state, respectively, shall have the power to provide for organizing, arming and disciplining its own militia whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion: And when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own state.
[Intended to limit federal power over state militias.]
"XII. That Congress shall not declare any state to be in rebellion without the consent of at least two-thirds of all the members present of both houses. "
[Now we get to the point of all the provisions concerning the bearing of arms: give "the people" the right and powers to rebel against a repressive federal power. Presumably a rebellion supported by at least a third of of the members of both houses of Congress would thereby become legitimate.]
The most vehement opponent of ratification was Delegate Lenoir. He voiced his darkest suspicions that the proposed government might become oppressive, emphasizing opposition to a standing army in time of peace and postulating the need for a militia to defend the people against a repressive government.
Federalists countered, arguing in favor of a standing army, asserting "We must [either] trust our friends or trust our enemies."
Delegate Lenoir:
"A constitution ought to be understood by every one. The most humble and trifling characters in the country have a right to know what foundation they stand upon. I confess I do not see the end of the powers here proposed, nor the reasons for granting them. The principal end of a constitution is to set forth what must be given up for the community at large, and to secure those rights which ought never to be infringed. The proposed plan secures no right; or, if it does, it is in so vague and undeterminate a manner, that we do not understand it.
"My constituents instructed me to oppose the adoption of this Constitution. The principal reasons are as follow: The right of representation is not fairly and explicitly preserved to the people, it being easy to evade that privilege as provided in this system, and the terms of election being too long. If our General Assembly be corrupt, at the end of the year we can make new men of them by sending others in their stead. It is not so here. If there be any reason to think that human nature is corrupt, and that there is a disposition in men to aspire to power, they may embrace an opportunity, during their long continuance in office, by means of their powers, to take away the rights of the people. The senators are chosen for six years, and two thirds of them, with the President, have most extensive powers. They may enter into a dangerous combination. And they may be continually reëlected. The President may be as good a man as any in existence, but he is but a man. He may be corrupt. He has an opportunity of forming plans dangerous to the community at large.
"I shall not enter into the minutiæ of this system, but I conceive, whatever may have, been the intention of its framers, that it leads to a most dangerous aristocracy. It appears to me that, instead of securing the sovereignty of the states, it is calculated to melt them down into one solid empire. If the citizens of this state like a consolidated government, I hope they will have virtue enough to secure their rights.
"I am sorry to make use of the expression, but it appears to me to be a scheme to reduce this government to an aristocracy. It guaranties a republican form of government to the states; when all these powers are in Congress, it will only be a form. It will be past recovery, when Congress has the power of the purse and the sword. The power of the sword is in explicit terms given to it.
"The power of direct taxation gives the purse. They may prohibit the trial by jury, which is a most sacred and valuable right. There is nothing contained in this Constitution to bar them from it. The federal courts have also appellate cognizance of law and fact; the sole cause of which is to deprive the people of that trial, which it is optional in them to grant or not. We find no provision against infringement on the rights of conscience. Ecclesiastical courts may be established which will be destructive to our citizens. They may make any establishment they think proper. They have also an exclusive legislation in their ten miles square, to which may be added their power over the militia, who may be carried thither and kept there for life. Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury. We are told there is no cause to fear. When we consider the great powers of Congress, there is great cause of alarm. They can disarm the militia. If they were armed, they would be a resource against great oppressions. The laws of a great empire are difficult to be executed. If the laws of the Union were oppressive, they could not carry them into effect, if the people were possessed of proper means of defence."
Ratification Temporarily BlockedDelegate Lenoir and his fellow Anti Federalists succeeded in blocking ratification by North Carolina in 1788. By 1789, however, ten other states had ratified. North Carolina reconvened the Constitutional Convention for a short session and passed the following resolution:
"IN CONVENTION
Whereas The General Convention which met in Philadelphia in Pursuance of a recommendation of Congress, did recommend to the Citizens of the United States a Constitution or form of Government in the following words Vizt.
Resolved, that this Convention in behalf of the freemen, citizens and inhabitants of the State of North Carolina, do adopt and ratify the said Constitution and form of Government. Done in Convention this 21 day of November 1789.
SAM JOHNSTON, President of the Convention
J HUNT Secretaries
JAMES TAYLOR"
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