What the Second Amendment Means Today

By Jay Cost

Monday, February 19, 2018

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions without actually knowing anything about guns, crime, or mental illness.

I have no desire to add to the cacophony of extremists and know-nothing “experts.” But seeing as how these debates inevitably revolve around the Second Amendment, I can at least provide some useful historical context about the constitutional rights to keep and bear arms.

The Bill of Rights was the means by which the Federalist supporters of the Constitution managed to mollify a critical mass of Anti-Federalist skeptics. The deal was straightforward: Ratify the Constitution in the state conventions, and the new Congress will offer a more fulsome enumeration of rights than is found in the core document (Article I, Section 9).

So, understanding the Bill of Rights means understanding a bit about the Anti-Federalists. Many of their objections to the new Constitution centered around the way it did not protect true republican government — or rule of, by, and for the people.

The Anti-Federalists directed their ire at pretty much every dot and tittle of the document, but their criticisms of the executive and judiciary were particularly intense. A common gripe was that these branches were unelected by the people (remember, the Electoral College, not the people, was originally supposed to choose the president) and seemingly unbound by the Constitution.

Regarding the executive, Anti-Federalist William Symmes wrote:

But was ever a commission so brief, so general, as this of our President? Can we exactly say how far a faithful execution of the laws may extend? or what may be called or comprehended in a faithful execution?

If the President be guilty of a misdemeanor, will he not take care to have this excuse? And should it turn against him, may he not plead a mistake! or is he bound to understand the laws, or their operation? Should a Federal law happen to be as generally expressed as the President’s authority; must he not interpret the Act! For in many cases he must execute the laws independent of any judicial decision. And should the legislature direct the mode of executing the laws, or any particular law, is he obliged to comply, if he does not think it will amount to a faithful execution?

Given the rise of the modern “imperial presidency,” this is a prescient objection.

Regarding the courts, the pseudonymous Brutus wrote:

I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. . . .

There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

Again, prescient!

This is an important framework for understanding the Bill of Rights, which is too often framed in a Lockean or individualistic sense — “The Bill of Rights protects me and my things.” While that is no doubt true, the Bill of Rights is also a republican enumeration, intended to protect self-government — especially against the unelected executive and courts — not simply by forbidding certain actions but also expanding the space for public participation beyond what the Constitution outlined.

The First Amendment creates the preconditions for public participation by protecting the rights of conscience, assembly, writing, and speech. The Second through Eighth Amendments go on to limit potential executive and judicial power, and also empower the citizenry.

The Fourth Amendment protects citizens from unreasonable searches and seizures, for instance, but the Fifth, Sixth, and Seventh Amendments empower juries: groups of citizens the Anti-Federalists thought were an essential check upon the judiciary. As the pseudonymous Centinel wrote, “[The trial by jury] is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department.”

This framework — simultaneously limiting the government and empowering the citizenry — is a good way to understand the Second Amendment and its cousin the Third Amendment. The Constitution gave the president the executive control over the armed services, but this lent itself to anxieties about “standing armies,” or permanent military establishments. Alexander Hamilton captured the general sentiment about standing armies in Federalist 8, writing, “The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen.”

There were several widely recognized problems with standing armies. First, they were expensive and required burdensome taxes to feed, clothe, house, and train. Second, standing armies were thought to be the tools of empire on the lookout for opportunities of conquest, not republics looking to defend the homeland. Third, standing armies might revolt against the civil authority, as could have happened with the Newburgh Conspiracy of 1783.

Accordingly, the Third Amendment — by prohibiting the forced quartering of soldiers in private houses — reduced the burdens that a standing army may oppose on the citizenry. The Second Amendment, by protecting the right to bear arms, empowered the people to serve as the republican alternative for civil defense — the militia. In this way, the people could protect the homeland without the need for burdensome and dangerous military establishments. So, while the Second Amendment identifies an individual right, it does so with a public purpose in mind.

Of course, we in 2018 do not have the same worries about standing armies that Americans had in 1789. Our military is deferential to the civil authority, and is a model of courage and discipline. Just as important, the United States is wealthy enough to support it now, which it most certainly was not in 1789.

Yet this does not, in my judgment, render the Second Amendment a historical anachronism. It is not consistent with a limited, republican government for law enforcement to take over every aspect of civil defense, broadly understood to include internal dangers (from insurrection to crime) as well as external foes. That would require a massive kind of police/surveillance state. At a certain point, individuals in a republic need to defend themselves and their neighbors. Even though its prefatory clause speaks only about the militia, in spirit the Second Amendment protects this right — just as the First Amendment does not mention the Internet but protects this column.

This analysis also suggests that the Second Amendment is not some willy-nilly license to wield whatever weapon one likes. It establishes an individual right for a public purpose — and it therefore follows that the people, acting through their representatives, can properly set the terms of how that right will be enjoyed. This implies a fairly broad framework for a debate on regulations of armaments — even if, in 1789, weapons technology was so limited that the Founding generation could never anticipate the need for such deliberation.

As we debate what kind of response is prudent in the wake of Parkland, it is important to remember the nature of the right the Second Amendment originally protected — for it was not a selfish right to bear weapons for oneself, but a public-spirited right to ensure that citizens could defend the polity without recourse to omnipotent, unaccountable armed forces. While the nature of such defense has obviously changed in the last 229 years, it is still an important right in 2018.