The United States Constitution

Bill of Rights : Amendment II


Updated March 14, 2007

"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."

Without this amendment, all others are meaningless. This amendment is a guarantee to the people of the United States of America that the right to keep and bear arms can not, shall not, nor will not be infringed upon.

To infringe upon - by definition - is the attempt to limit the right of:

  • legal or moral entitlement to do - or refrain from doing - some thing;
  • legal or moral entitlement to obtain - or refrain from obtaining - an action, thing or recognition in civil society. In the Second Amendment, the entitlement is the right to the action(s) of keeping and bearing a thing called arms by the people.

What this means is, the people, who in times of need may form a militia, have the inalienable right to keep and bear arms without fear of such right being vacated. In order to be an effective militia - an integral part of a free society - the people should be armed in equal or greater proportion than any potential threat - foreign or domestic - and trained to use such armament. Additionally, the uninfringed right of the people to keep and bear arms is the most powerful deterrent to tyranny.

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of 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 bands of regular troops…" Noah Webster, "An Examination into the Leading Principles of the Federal Constitution" (1787) in Pamphlets on the Constitution of the United States (P. Ford, 1888)

The people have the inalienable right to keep and bear arms without fear of Government persecution or prosecution. To restrict the right of the people to obtain arms, any arms, infringes upon the right to keep and bear arms, in effect disarming the militia; that action is unconstitutional by any definition.

A militia is very distinct from a regular army. Since the militia is created from private citizens (the people), it is generally armed with privately owned weapons, acquired with private funds, and not restricted by Government bureaucracy, funding or uniformity.
A militia's role is also very distinct from a regular army in that "it can serve to supplement the regular army, or it can oppose it."
The term militia - in the American sense - is defined as the activity of one or more citizens organized to provide defense or paramilitary service, or those engaged in such activity; however, the word militia can have several somewhat different meanings:

  • 1) "Defense activity, as well as those engaged in it, when it is defense of the public, its territory, property, and laws"
  • 2) "The entire able-bodied male population of a community, town, or state, which can be called to arms against an invading enemy, to enforce the law, or to respond to a disaster"
  • 3) "A private, non-government force, not necessarily directly supported or sanctioned by its government"
  • 4) "An official reserve army, composed of citizen soldiers, also called an Army Reserve, National Guard, or State Defense Forces"

At the time in American history when the Constitution was ratified, the militia was deemed to represent "the entire able-bodied male population of a community, town, or state, which can be called to arms against an invading enemy, to enforce the law, or to respond to a disaster."

"I ask, Who are the militia? They consist now of the whole people, except a few public officers." George Mason, 3 Elliot, Debates at 425-426, June 16, 1788.

In any of these four stated definitions the common theme is a militia is "distinct from a regular army." It can serve to supplement the regular military, or it can oppose it, for example to resist a military coup. In some circumstances, the 'enemies' against which a militia is mobilized are domestic political opponents of the government, such as strikers; in other circumstances, it may be construed necessary to mobilize militia during political unrest in which time constitutional rights are revoked or suspended and a government becomes oppressive and tyrannical. In many cases the role, or even the existence of a militia, is controversial. For these reasons legal restrictions may be placed on the mobilization or use of militia.

"First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always by kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing select corps of militia, or distinct bodies of military men, not having permanent interests and attachments in the community to be avoided." Richard Henry Lee writing in Letters from the Federal Farmer to the Republic, Letter XVIII, January 25, 1788.

Central to the complete concept of 'militia' as used by the American Founders in the second amendment of the Constitution was that it be 'well-regulated', which meant well-trained and well-organized, but not necessarily by government. Thus, the term would not have been properly used to refer to an armed, unruly mob, but only to persons who behave in a responsible, law-enforcing mode, and who might act to control an armed, unruly mob as an 'insurrection'.
"In recent times there has developed what appears to be a campaign to stigmatize the term by having journalists and others apply the term to unsavory armed groups. A leading organization in this effort has been the Anti-Defamation League, which has been criticized for doing so."

Further argument - "The Second Amendment unambiguously protects "the right of the people" to keep and bear arms. This is exactly the same phrase - "the right of the people" - used in the First and Fourth Amendments, where it indubitably refers to individual rights. All three amendments were framed at the same time, along with the Tenth Amendment, which expressly distinguishes between "the people" and "the states." Thus, the framers of the Amendment clearly chose to protect a right of individuals, not a right belonging to the states.
Were there any basis for the states' right theory, it would have to arise from the Second Amendment's prefatory phrase, "A well regulated Militia, being necessary to the security of a free State . . ." This phrase, however, cannot be read to alter the meaning of the Amendment's operative clause, which provides that "the right of the people to keep and bear Arms, shall not be infringed." First, the grammatical structure of the Amendment clearly indicates that the prefatory phrase serves only an explanatory purpose. It is certainly true that the Constitution implies that it protects the right of the people to keep and bear arms because a well-regulated militia is necessary to the security of a free state. But it is equally true that the Constitution does not say or imply that this right of the people is protected only to the extent that some government agency (such as Congress or the courts) believes that the right fosters a well-regulated militia. If that were its meaning, the Second Amendment should have provided: "A well regulated Militia, being necessary to the security of a free State, the right of the Militia to keep and bear arms shall not be infringed." But the Constitution does not say this. On the contrary, the Second Amendment clearly distinguishes "the people" from the "militia." The framers, moreover, were familiar with dozens of state constitutional provisions that included similar explanatory phrases, none of which had ever been interpreted to limit or qualify the operative language to which they were appended."

"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Thomas Jefferson, letter to Justice William Johnson, June 12, 1823, The Complete Jefferson, p 322.

There is also debate about the frivolous use of commas in the Second Amendment. The original ratified version of the Bill of Rights - with the correct rendition of the Second Amendment - carries but a single comma, after the word "state." Hence, "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 three comma version - as appears on the parchment copies of the Bill of Rights - is believed to have been taken from the writings of Madison, later carried by scribes to the so-called original copies. That version reads, "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." A copy of the original ratified wording can be found in the Statutes at Large, Amendments to the Constitution, Volume I, Page 97, Article II, with single comma, at the Library of Congress.
To reiterate - the correct rendition of the Second Amendment carries but a single comma, after the word "state." It was in this form that those twenty-seven words were written, agreed upon, passed, and ratified. This is why it is so important to use the proper Second Amendment during debate; it was clearly and flawlessly written in its original form. Also, the function of the words, "a well regulated militia being necessary to the security of a free state," are readily discerned when the proper punctuation is used. On the other hand, the gratuitous addition of commas serve only to render the sentence grammatically incorrect and unnecessarily ambiguous. In an attempt to diminish – if not abolish - the inalienable “right of the people to keep and bear arms” (as originally presented and guaranteed by the Second Amendment), the anti-gun movement shamefully exploits this perceived ambiguity. This total disregard of the original intent of the Constitution endangers our most basic and essential freedoms.
Going back to a perceived notion that States choose whether or not to allow the people to keep and bear arms, forty-four States have specific wording that guarantees the right of the people to keep and bear arms. Only six do not mention this right specifically, although four defer to the United States Constitution or mention inalienable rights. The actual text of the individual State constitutions can be found at the Second Amendment Foundation website. The bottom line is the Constitution of these United States is the Supreme document of the land and it overrides all lesser State documents.

"Enlighten the people generally, and tyranny and oppressions of body and mind will vanish like evil spirits at the dawn of day." Thomas Jefferson, letter to P. S. Dupont de Nemours, April 24, 1816. Found in "The Writings of Thomas Jefferson," edited by Paul L. Ford, vol. 10, p. 25 (1899). This sentence is one of many quotations inscribed on Cox Corridor II, a first floor House corridor, U.S. Capitol.

In a recent 2 to 1 landmark decision - Friday, March 9, 2007 - the U.S. Court of Appeals for the D.C. Circuit ruled that the District's longtime ban on keeping handguns in homes is unconstitutional. Most anti-gun activists claim the militia "clause" in the Second Amendment as proof that private gun ownership is not granted by the Constitution; it is only granted to the militia. However, the Appeals Court ruled the opposite, which has been the main argument pro-gun activists have consistently maintained:

"We conclude that the Second Amendment protects an individual right to keep and bear arms," Silberman said in the 58-page majority ruling.

The Opinion states:
"To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia."

God Bless the DC Circuit Court of Appeals! The Constitution is Alive and Well once again!

In a more recent landmark decision, on June 26, 2008 in a 5-4 vote, the U.S. Supreme Court declared for the first time that the Second Amendment to the Constitution guarantees the right of individual Americans to keep and bear arms.
Well done!

Quotes of the Founding Fathers and Their Contemporaries - in Regard to the Right of the People to Keep and Bear Arms - may be found on the Second Amendment Foundation website.

If you care to contact me concerning this topic, please E-mail: C. Alan Russell

©1998-2007 - C. Alan Russell - All rights reserved.

This Page Has Been Accessed Times