2nd Amendment: Self-Defense Constitutional Provisions

III.   SELF-DEFENSE: CONSTITUTIONAL PROVISIONS

The preceding chapter discussed the primary means used to secure the unalienable right of self-defense: the right to have arms, the militia, and the absence of standing armies. These principles are woven throughout the United States’ legal documents, starting with the Declaration of Independence which set forth the general principle of self-defense.

Similar to the Declaration, the state constitutions drafted before the U.S. Constitution in 1787 recognized that the natural defense of a nation rested in local hands. Of the seven state constitutions which had a Bill of Rights before 1787, all seven said that permanent, standing armies were unsafe and should not be maintained in time of peace.⁷⁹ In 1776, for example, Virginia’s Bill of Rights said the following: “Standing armies, in time of peace, should be avoided as dangerous to liberty.”⁸⁰

The presupposition was that, by nature, the fundamental defense of a state should work from the inside-out. While every state Bill of Rights asserted this in some form, four of them explicitly stated that the militia (a citizen-army) was the natural defense of the state.⁸¹ Virginia’s Constitution said that, “A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State.”⁸² The state militias included every male between the ages of 17 and 45;⁸³ that is, everyone except for a few public officials.⁸⁴ Every citizen was required to be armed and prepared to fight.⁸⁵

The three constitutions which did not mention the militia by name stated that every individual had the right to own firearms either for his own defense or for the common defense.⁸⁶ Pennsylvania’s Constitution, for example, stated both: “The people have a right to bear arms for the defense of themselves and the state.”⁸⁷ Weapons were considered to be a necessary means for self-defense. If individuals were denied this means, then the very backbone of self-defense would have been crippled.

In addition to the right of bearing arms, the states also affirmed the importance of maintaining a militia instead of a standing army. The state constitutions recognized that self-defense was an individual right and duty, flowing from the inside-out, not vice-versa.

A.    Self-Defense in the U.S. Constitution

When reading the Constitution, one must remember that its drafters incorporated the ideas from the National Charter, the Declaration. It had asserted that self-defense was a citizen’s right and duty — a maxim which was embodied in both the state and national constitutions.

But even though defense was seen primarily as an individual duty, the national government was also given power to defend the nation. For example, Congress has the “Power To lay and collect Taxes, Duties, Imposts and Excises” in order to “provide for the common Defense.”⁸⁸ At face value, this provision seems to give Congress unlimited power in defending the nation. In a time of crisis, this is the case; the framers wanted Congress to have the necessary and proper means to meet any foreign insurgency.

During peace-time, however, the founders wanted the national government to have a more limited role in defending the nation. The text and the context of the Constitution reflect this intent.

Text of the Constitution

The text of the Constitution uses restrictive language when delineating Congress’ power to defend the nation. Congress is to “provide” for the common defense, not to “promote” it (U.S., Constitution, art. I, sec. 8, cl. 1).

The significance of what this provision says, and what it does not say, is based on the distinction between “provide” and “promote” in the Constitution. On the one hand, Congress is given the power “To provide for calling forth the militia,”⁸⁹ but on the other hand, it is given the power “To Promote the Progress of Science and useful Arts.”⁹⁰ What is the difference?

To “provide for” incorporates a limitation whereas “promote” is an enlargement.⁹¹ Webster’s 1828 dictionary defines provide in the following way: “to get, collect or make ready for future use; to prepare. . To stipulate previously.”⁹² Thus, “provide” means to prepare for a future event. Promote on the other hand means “To forward; to advance; to contribute to the growth, enlargement or excellence of any thing valuable.”⁹³ “Promote” connotes a continual, active pursuit of growth. “Provide” is more limited than “promote,” which is assertive and expansive. In providing for the common defense, therefore, Congress has a limited role during times of peace. This reflects the founders’ commitment to allow self-defense to be, first and foremost, an individual right and duty.

Context of the Constitution

The context of Article I, Section 8 shows that Congress should not bear the primary responsibility for defending the country during a time of peace. The provision empowering Congress to “provide for the common Defense” is limited by the statements following in the rest of Article I, Section 8.

The first limitation is found in clauses 12 and 13. The language states that Congress has the power to “raise and support Armies” and to “provide and maintain a navy.” The distinction in the wording between these two phrases is a crucial one.

“Armies” is a plural noun indicating that more than one army will be raised and that Congress will not maintain a permanent army. But “Navy” is a singular noun, indicating that only one navy will exist. This is further supported by the fact that Congress must “maintain” the navy. To “maintain” something is a continual, ongoing process. Therefore, Congress must continually fund a permanent navy.

In contrast, Congress must “support” the armies that are raised. The power to “support” an army is not as expansive as the power to “maintain” that army. “Maintaining” is perpetual; “supporting” is temporary, for the support of an army depends upon its existence. Once the army is disbanded, the support for it ends. And thus, Congress’ power to “support an army” is evidence of restrictive language that limits its power to “provide for the common Defense.”

It is important to note that while a standing army in time of peace was considered dangerous to liberty, a permanent navy was not. This distinction lies in the difference between the natures of an army and a navy. A navy was not considered capable of keeping a population in subjection since its strength was at sea. An army, on the other hand, was capable of being quartered in people’s homes. This made them dangerous.

James Madison acknowledged this distinction. Concerning the navy, he stated that, “The batteries most capable of repelling foreign enterprises on our safety are happily such as can never be turned by a perfidious government against our liberties.”⁹⁴ But concerning a professional army, he said that “a standing army is one of the greatest mischiefs that can possibly happen.”⁹⁵ This distinction is further realized in the state constitutions. s already mentioned, all seven of the state constitutions, which had a Bill of Rights before 1787, said that standing armies should be avoided for they were dangerous to liberty.⁹⁶ Not one constitution, however, made the same claim about the navy.

A second limitation is found in the second part of clause 12. Congress shall have power “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.“⁹⁷ (Emphasis added.)

Any delegation of money to the army expires in two years and, if not renewed, the army must then disband. Congress is not required to continue funding an army. In fact, Alexander Hamilton writing in the Federalist Papers said,

The legislature of the United States will be obliged by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in th executive department permanent funds for the support of an army.⁹⁸

Therefore, the two-year limit for funding an army was seen as a restriction upon Congress’ power to “provide for the common Defense.”

Finally, Congress has the power to “provide for organizing, arming, and disciplining, the Militia.”⁹⁹ Rufus King, a delegate to the Constitutional Convention, explained this provision in the following manner:

By “organizing,” the committee meant proportioning the officers and men — by “arming,” specifying the kind, size and caliber of arms — and by “disciplining,” prescribing the manual exercise, evolutions, etc.¹⁰⁰

This provision is a limitation on Congress’ power to “provide for the common Defense” because it gives Congress the power to unify the state militias, Once united, the militias can more effectually be used by the President, acting as Commander In Chief. An important purpose of this clause is to give the President power over the militias so that he will be less likely to use a standing army for military purposes. Hamilton stated in the Federalist Papers that,

If standing armies are dangerous to liberty, an efficacious power over the militia in the same body ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary will be a more certain method of preventing its existence than a thousand prohibitions on paper.¹⁰¹

By preventing the need for a standing army, the militias can limit Congress’ role in peace-time defense, which is better left to the states and the people. The assumption was that self-defense should work from the inside-out.

Although the founders thought that a standing army was dangerous, they wanted Congress to have discretion in deciding if an army was needed. They did not want to tie the hands of Congress in case the need arose for a standing army in time of peace. The concern was that Congress, sensing danger from abroad, might need to raise a standing army — even though war had not been officially declared.

For example, Jonathan Dayton, a delegate to the Constitutional Convention, expressed this very idea. Although he did not think that a peace-time standing army would be necessary, he conceded that, “a standing force of some sort may, for ought we know, become unavoidable (emphasis added)” because “preparations for war are generally made in time of peace.¹⁰²

If the Congress had to wait until an actual war was in progress, then the nation would have been placed in a precarious position. As Hamilton put it, “the United States would then exhibit the most extraordinary spectacle which the world has yet seen — that of a nation incapacitated by its Constitution to prepare for defense before it was actually invaded.”¹⁰³

Furthermore, the founders did not feel it necessary to limit the size of a standing army. During the Constitutional Convention, Elbridge Gerry moved to limit the size of standing armies in peace-time to two or three thousand men. Another delegate then reminded him that the best guard against a peace-time standing army was the clause which limited the appropriation of funds.¹⁰⁴ Without the funding from Congress, the army could not exist.

Thus, the delegates to the convention resolved not to expressly prohibit or limit the size of standing armies. Instead, they felt that a limitation upon the purse strings would be enough of a safeguard to prevent an unnecessary army. Again, the assumption was that self-defense should work from the inside-out — a supposition that is woven throughout the context of Article I, Section 8.

B.    Self-Defense in a Federal System

The American form of government also reveals that Congress’ peace-time role in defense is limited.

The United States of America is federal in form. In such a system, the governmental powers are distributed between national and state governments. The national government has authority over matters of national unity; the states, over matters that are local and allow for diversity. Those matters which are considered to be matters of national concern are enumerated in the Constitution. What is not delegated to the national government is reserved for the several states and the people.

At the heart of a federal system is the law of unity and diversity -a principle derived from the “Laws of Nature and of Nature’s God.”¹⁰⁵ The law of unity and diversity has two significant implications for the defense of the nation: strength in unity and freedom in diversity.

Strength in Unity

The benefit of unity in a federal system is strength. The “one people” who united under the Declaration later established the Constitution “in order to form a more perfect Union.” Having achieved this union, they better secured the defense of the nation — for unity breeds strength, and strength deters foreign invaders.

In addition to deterrence, unity also improves the defense against an actual invasion. The slogan, “United we stand, divided we fall” is certainly true in warfare. And thus, the Constitution allows the national government to unify the defense of the nation. First, Congress has the sole power to declare war; and it may declare war for the entire nation.¹⁰⁶ This power gives the nation, as James Madison said, “the advantage of uniformity in all points which relate to foreign powers.”¹⁰⁷

Second, “[t]he President shall be Commander in Chief . . . of the militia of the several States, when called into the actual Service of the United States.”¹⁰⁸ Under this provision, the President can assume the command which the state governors normally have over their militias. The reasoning behind this is evident: one commander will allow for unity in war; fifty commanders will not.

Third, Congress can “provide for organizing, arming, and disciplining, the Militia.”¹⁰⁹ This provision is intended to get the militia to think and act as a unified army. The President can then more effectually command the militia as one unit when they are nationalized.

Fourth, Congress has the power to raise armies and provide a navy by drafting citizens from any state in the union.¹¹⁰ Under the Articles of Confederation, many states had severely hampered the Continental Army by refusing to supply their citizens for the war effort.¹¹¹ The national government’s power to raise troops is intended to prevent the states from dividing the nation in this way ever again.

Finally, the national government can apply the manpower of the whole union to any part of the whole. The national leaders have the authority to quell an internal rebellion or defend a state from external invasion.¹¹² One reason that rebellions and invasions were considered to be national concerns was that either could threaten the nation’s integrity.¹¹³

To maintain a strong defense, therefore, the Constitution provides for a unified defense. But unity does more than protect the citizens from outside forces; unity also protects the people from internal tyranny by reducing the need for a standing army. In Federalist No. 41, James Madison explained that, “The Union itself . . . destroys every pretext for a military establishment which could be dangerous.” Therefore, he continued, “the effectual establishment of the Union, (is] the best possible precaution against danger from standing armies.”¹¹⁴ National unity means national strength, which in turn, means that Congress does not need to raise a permanent standing army. Again, the assumption is that the national rulers are not vested with unlimited powers in matters of defense, but rather, it is supposed that their role is limited. As Hamilton said in Federalist No. 29, the national government has “the duties of superintending the common defense.”¹¹⁵ (Emphasis added.)

Freedom in Diversity

In addition to the benefits of unity, there are well-founded reasons for remaining diverse. The “Constitution of the United States,” as the title suggests, recognizes that the “Free and Independent States” formed under the Declaration will exist in the midst of the Union. These state governments maintain their own individuality and act as a check upon the national government. Thus, the benefit of diversity in a federal system is the maintenance of freedom.

The Constitution allows for diversity in matters of defense. For example, the Constitution respects the people’s right to keep and bear arms. Being a document of limited and enumerated powers, the Constitution only allows Congress to exercise the power given to them by the people. I the people did not give Congress any authority to confiscate guns, then Congress cannot pass any “gun control” legislation. In fact, this is the case; Article I, Section 8 of the Constitution gives Congress no such power. This means that the unalienable right of self-defense, which includes the right to own and use a weapon for a lawful purpose (such as self-defense), remains a right and power to be exercised by the people. This is the primary way that the Constitution secures the people’s right to keep and bear arms. The Second Amendment of the Bill of Rights was added later, to serve as a further protection.

Another way the Constitution permits diversity in defense is by allowing the militia to normally remain under the authority of the states: “Congress shall . . . [reserve] to the States respectively, the Appointment of the Officers, and the Authority of training the Militia.”¹¹⁶ While the states have original jurisdiction over their militias, Congress does have the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”¹¹⁷ Once Congress “calls forth” the militia, the President becomes their Commander in Chief.¹¹⁸ Until then, each governor retains his authority as commander his state militia.

The militias are important for they are an effective way to check national encroachments upon the states’ power. In Federalist 46, James Madison argued this very point:

Let a regular army . . . 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. . . . To these [the standing army troops] 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 [state] governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms will be most inclined to deny the possibility of it.¹¹⁹

Besides their ability to check the national government, the state militias can reduce the need for a standing army. Madison stated in the Constitutional Convention that since “the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good militia.”¹²⁰ Neglecting the militia leaves a void which a standing army must fill. But by keeping the militias well-regulated, the people can bear the brunt of the defense burden.

A federal system keeps the peace-time strength dispersed. Furthermore, it allows the people both to provide a valuable check upon the national government and to prevent the necessity of a standing army. Thus, the federal system limits the Congressional role in providing for the common defense. The assumption, once again, is that self-defense should work from the individual-outward.

In conclusion, the right of self-defense is inherent in the nature of a federal system because both the unity and diversity elements contribute to an inside-out system of defense.

C.    Self-Defense in the Second Amendment

The prevalent, recurring theme up to this point is that self-defense is a natural right to be exercised by every individual. The common methods of securing this principle are the following: the right to have arms, the militia, and no permanent standing armies. These principles were very important to the founding fathers, as evidenced by the state ratifying conventions.

State Proposals for Amendments

Of the 13 states that ratified the Constitution, eight requested that additional amendments be added to the Constitution. A common theme found in six of these state proposals was the importance of self-defense, as well as the three methods for preserving that right.¹²¹ For example, Virginia’s proposal read,

That the doctrine of non-resistance against arbitrary power and oppression is absurd slavish, and destructive of the good and happiness of mankind. . . . 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.¹²²

Among the states requesting a right to keep and bear arms amendment, two states made it unmistakably clear that they wanted a protection for every citizen. The Pennsylvania Convention Minority, for instance, stated that

The people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.¹²³

Also, the state of New Hampshire requested the following provision: “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”¹²⁴

James Madison was given the task of incorporating all of these ideas into a Constitutional amendment. A Congressional Subcommittee explains that Madison, when drafting the Bill of Rights,

did not write upon a blank tablet. Instead, he obtained a pamphlet listing the State proposals for a Bill or Rights and sought to produce a briefer version incorporating all the vital proposals of these. His purpose was to incorporate, not distinguish by technical changes, proposals such as that of the Pennsylvania minority . . . and the New Hampshire delegates.¹²⁵

The state proposals should help interpret the Second Amendment because it was these proposals that gave rise to what is now the Second Amendment. It states that,

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.

Text and Context

The language of the Second Amendment indicates that self-defense was the foundational principle implied. The words “Militia,” “security of a free State” and “keep and bear Arms” all contribute to this understanding.

Since the right of self-defense is one of the “Laws of Nature and of Nature’s God,” it will exist with or without the Bill of Rights. But the framers wanted to further secure this right, and therefore, they drafted the Second Amendment. In this Amendment, the framers either explicitly stated or strongly implied the three most common ways to secure the right of self-defense: the right to have arms, the duty to be in the militia, and the danger of standing armies. The text and context of the Amendment, supplemented with the Congressional debates, reveal this intent.

The Right of the People to Keep and Bear Arms

The first important provision in the Second Amendment is that “the right of the people to keep and bear Arms, shall not be infringed.” Two differing interpretations have been derived from this phrase.

The first view is the “collective rights” interpretation. Advocates of this position assert that the language of the Second Amendment ties the right to keep and bear arms to the militia clause. This suggests the following construction of the Amendment: because the militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. This interpretation would limit the right to bear arms to those in the militia and, presumably, to those in other military bodies as well.

The second view is the “individual rights” interpretation. The proponents of this view argue that the “right of the people” which is being protected refers to every individual citizen. Important in arriving at this conclusion is the historical evidence prior to the drafting of the Second Amendment — especially the state proposals, since they directly gave rise to the language of the Amendment. Of the states proposing a right to keep and bear arms, none restricted gun ownership to only the militia, and in fact, some states actually made an explicit request for a guarantee of a universal right.

While these two interpretations differ superficially, in the end they both arrive at the same answer, that is, if the proper rules of interpretation are followed. Under the “collective rights” view which links arms ownership to militia duty, the Second Amendment only protects the right of militia-members to bear arms. But for one to then conclude this as a matter of policy would effectively divorce the Bill of Rights from the Constitution. Article I, Section 8 does not give Congress the authority to confiscate the weapons of non-militia-members, meaning that Congress can not deny any citizen of his right to keep and bear arms. Thus, the Second Amendment and the Constitution together protect every individual’s right to keep and bear arms. (Even standing alone, the Second Amendment would at least make the right to bear arms applicable to the entire male population. Federal laws from 1792 to the present have defined the militia as comprising every male citizen, not just a select few.)¹²⁶

According to the second view, the Anglo-American history (especially the state proposals) should help interpret the Second Amendment. This would link the right to have arms to non-militiamen as well as militiamen, thereby protecting everyone’s right. Either way, therefore, both interpretations ultimately yield the same conclusion since the Constitution and the Second Amendment must be examined together. The result is a constitutional protection of an individual right to keep and bear arms.

The “individual rights” interpretation is further supported by a closer examination of the text and context of the Amendment. First, the “right of the people” means everyone. Most people would agree that the “right of the people” in the First and Fourth Amendments guarantees individual rights. The right of the people to peaceably assemble, to petition, and to be safe from unreasonable searches and seizures are rights that are commonly considered to apply to all individuals.

The same must be said, therefore, for the “right of the people” in the Second Amendment. To argue that this right only guarantees a collective right, while the “right of the people” in the First and Fourth Amendments guarantees individual rights, would suggest that the framers were guilty of equivocating. (But whenever one interprets a text, one must give the benefit of the doubt to the author. This is Aristotle’s rule of interpretation. One must not assume an author to be illogical unless there are compelling reasons for such an assumption.)

Second, the words “shall not be infringed” indicate that there is a preexisting right of the people which is being preserved. Even if the right to have arms only related to the militia, the laws of nature and of nature’s God would still permit an individual to use a weapon for his personal self-defense.

Finally, the contextual analysis supports an “individual rights” interpretation. Madison, the author of the Bill of Rights, wrote that, “They [the proposed amendments] relate 1st. to private rights.”¹²⁷ Madison’s statement means that the Second Amendment was intended to secure a private right.

The Second Amendment further states that the people shall not be denied their right “to keep and bear arms.” The words “keep” and “bear” do not mean the same thing, although they are similar in meaning. Noah Webster defined “keep” as a matter of possession: “to have in custody for security or preservation.”¹²⁸ Meanwhile, “bear” refers to where one can keep what he possesses; “bear” means “to wear . . . as, to bear a sword . . . to bear arms in a coat.”¹²⁹

Therefore, having defined these terms, and remembering that the Second Amendment secures the right of self-defense, one could put the following gloss on the latter half of the Amendment: “the right of each individual to lawfully possess and wear arms for his self-defense, shall not be infringed.” This is a guarantee of an individual right, and it assumes that self-defense works from the inside-out.

A few words must be said concerning the nature of this right. Quite simply, a right is not a wrong. As with any right, it must be used for a lawful purpose, not a wrongful one. For example, a person can not claim a right of liberty to drive a car through his neighbor’s front yard. The right of liberty must be exercised in a lawful fashion, meaning that there are limits to that right. Similarly, an individual’s right to keep and bear arms is not unlimited. While one may use a gun for a lawful purpose (such as in self-defense), one does not have a right to use a weapon to commit a crime.

A Well-Regulated Militia

The second important provision in the Second Amendment is the statement: “a well regulated Militia, being necessary to the security of a free State.”

The militia of the 1700’s included every free citizen. George Mason stated in the Virginia convention, “I ask, Who are the militia? They consist now of the whole people, except a few public officers.”¹³⁰ The founders believed that the militia should be well-regulated, that is, that every citizen should be trained and be vigilant, ready to exercise his citizen duty.¹³¹ Defense was seen as a matter of individual self-government and was a duty that everyone shared.

Furthermore, a well regulated Militia was considered to be “necessary to the security of a free State.” The Second Amendment emphasized the “Militia” and the “State,” not the army and the nation. This emphasis (upon a local defense) reaffirmed the federal nature of the United States, for defense was considered to be primarily a duty for the diverse parts in times of peace.

A Standing Army, the Bane of Liberty

Finally, a third item which is implied in the Second Amendment is the deterrent to having a standing army. This is accomplished by the phrase, “a well regulated Militia,” because it is a well-regulated militia that will diminish the need for a standing army. Elbridge Gerry stated during the Congressional debates over 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.”¹³² Thus, the militia preserved the individual right and duty of self-defense by reducing the need for a permanent standing army.

By way of summary, the text and context of the Second Amendment show that the inside-out principle of self-defense lies at the very foundation of the Amendment.

D.    Self-Defense in the State Constitutions

The right of self-defense is embodied in many of the current state constitutions as well. While forty-three state constitutions have right to keep and bear arm provisions, several have pro-militia and anti-standing army clauses as well.¹³³ North Carolina’s constitution, for example, states all three:

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; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained.¹³⁴

States such as Pennsylvania, Kentucky, Washington (to name but a few) make it unmistakably clear that the right to keep and bear arms in those states applies to every citizen. For example, Washington’s Constitution states that, “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired.”¹³⁵

In conclusion, the right of self-defense has been embodied in the constitutional documents of the United States: the state constitutions, the U.S. Constitution and the U.S. Bill of Rights. All of them affirm that the principle of self-defense should work from the inside-out.