Book Mini-Symposium Part I: Militias, Bearing Arms, and the Forgotten Language of Eighteenth-Century Rights

Although most modern Americans could easily dispense with the militia clause of the Second Amendment, eighteenth-century Americans generally believed that the preamble’s affirmation of the necessity of a well-regulated militia was far more important than asserting a right to keep and bear arms. Indeed, most of the first state constitutions did not even mention the right to bear arms.  Additional evidence of this view may be found in Federalist William Rawle’s comments on the meaning of the Second Amendment in A View of the Constitution of the United States. Rawle described the right to bear arms as a corollary of a well-regulated militia.

This conception is almost the exact opposite of the way most modern gun rights advocates view the matter. In modern gun rights ideology the right to bear arms makes possible a citizen militia, so the militia is an ancillary of the right to keep and bear arms.  Most members of the Founding era saw matters differently: because a well-regulated militia was necessary to the security of a free state,  they insisted, the right of the people to keep and bear arms had to be protected.

A closer look at the two first state declarations of rights is instructive. Virginia, the first state to draft a declaration of rights, did not expressly protect the right to bear arms. Instead, Virginia asserted: “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, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”  The militia was set against the danger of a standing army and the need for the military to be subordinate to civilian authority. This was the classic Whig conception of the militia.

In a separate provision Virginia also affirmed: “that all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”  The recasting of the Lockean trinity of life, liberty, property in this text suggests that the idea of individual self-defense was not seen as identical to either the right to bear arms or the preservation of a well-regulated militia.  Modern gun rights ideology, including the majority opinion in District of Columbia v. Heller, have blurred these distinct concepts together, effectively rewriting the original conception of Second Amendment in light of post-eighteenth century changes in American thinking about gun rights.

Turning to the second declaration of rights drafted after Independence, the Pennsylvania Declaration of Rights, the idea of the right to bear arms is clearly expressed: “that the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.” As was true for Virginia, Pennsylvania linked the militia with the traditional Whig fear about standing armies.

In Heller Justice Scalia adopted the modern gun rights view of this text, arguing that it unambiguously asserts an individual right to bear arms and that this right was synonymous with the individual right of self-defense.  One problem with this claim is that Pennsylvania also separated the Lockean trinity of life, liberty, and property, from the right to bear arms.

Another piece of textual evidence cutting against Scalia’s interpretation is the inclusion of a provision of a right not to bear arms. Protecting a right for conscientious objectors such as Quakers, Moravians, and Mennonites not to be forced to bear arms is hard to reconcile with Heller’s conceptualization of the right to bear arms as modern individual right. The idea of forcing someone to bear arms in individual self-defense is absurd.

Moreover, the history of the constitutional struggle over religious exemptions in Pennsylvania shows that “bearing arms” was not understood to be a synonym for “carry a gun” as Scalia argued in Heller. Pennsylvania allowed those religiously scrupulous about bearing arms to pay a fine instead of serving in the militia. For Quakers, the most militant pacifists in Pennsylvania, this compromise was unacceptable.  Any support for the militia, including  paying for substitutes, paying fines, or even paying for non-military supplies was a violation of Quaker faith.  Thus, a Quaker might bear a gun in many circumstances:  Quakers’ firms manufactured arms and Quakers even worked as gun smiths, but the one thing a Quaker might not do was serve in the militia. So contrary to Scalia, bearing a gun and bearing arms were not synonymous. Indeed, carrying a flag or a drum in a militia unit, either on a muster field  or in battle, would have violated the Quaker peace testimony, and been viewed by the community as an impermissible example of arms bearing. By contrast, using a gun to rid their own fields of critters and pests, an agricultural necessity, would have not posed any problem. Quakers were religious pacifists, not vegetarians, something Scalia’s account confuses.

Although the first declarations of rights drafted after Independence have often been quoted in the modern Second Amendment debate, they have seldom received the careful attention they deserve.  When read in context, these early legal texts do not support the simplistic claims so often made about the “original meaning” of the Second Amendment.  The time has come to free these texts from the ideological distortions wrought by the modern debate over gun rights and gun control and understand them as part of an eighteenth century debate over rights that shares little with our modern conflicts over the proper role of guns in a free society.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]