1. Introduction

No other component of the Constitution is more debated, revised, and misunderstood than the Second Amendment. Both Democrats and Republicans argue over their modern connotations and perceptions of the 27 words worth fighting for, though neither maintains a firm control nor deep comprehension of the text and, as a result, fight over minutiae that fundamentally contend against James Madison and George Mason’s original work. The Second Amendment (2A) reads as follows: “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.” Short? Yes. Powerful? Also yes. It is important to note that this paper is neither  Constitutionalist nor Originalist. However, it embraces the underlying understanding that the Founders possessed on Morality. This paper seeks to break down the 2A into each constituent phrase and thoroughly examine each term as the Founders defined them in their own words, and determine what that means for the gun debate today.

2. A well regulated Militia

Immediately, Madison and Mason opened with “a well regulated Militia,” so it might seem that they advocated for a standing army regulated by the state, but this is not the case. Unaccompanied by its modern connotation, “to regulate” is defined as such: “to maintain according to a set of standards to that something operates or functions properly, such as with a machine or a process” (Willingham) The original connotation is significantly different from what we think of today. Madison and Mason did not mean “government regulation” regarding the private sector; it referred to the direct regularization and maintenance of equipment and proper training for tactical employment. An important distinction is that the regulatory state we know today had not evolved into its current form. Now, what does this mean in regards to a Militia? The term comes from the Latin militum vulgarum, which roughly translates to “like the military, everywhere” or “a vulgar (commoners) military” (Tacitus). More clearly, a Militia is a body that has the capability commensurate with a military present everywhere across a country and distributed throughout a population. It is a decentralized, distributed force of individuals who maintain weapons and tactics similar through a military force, but not centrally controlled or directed by a state. Let us now examine what the founders had to say about who composes the Militia. 

“What is the Militia? It is the whole people” ​​— George Mason

“A well regulated Militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country” — James Madison

“A militia, when properly formed, are in fact the people themselves, and include all the men capable of bearing arms” — President of the Continental Congress, Richard Henry Lee

In their own words, at the time of ratification, the Founders explicitly stated that a Militia is the only body with legitimate authority to stand in perpetuity. A properly-trained People with all kinds of arms, dispersed throughout a population, maintains a standing army’s tactical ability and power without imposing a fundamental threat to Liberty. Rather, Militia is conceived in Liberty. Altogether, the first phrase emphasizes a well-trained Militia formed of the entirety of the able-bodied populace with the tactical ability of a standing army.

3. Being necessary to the security of a free State

Second, Madison and Mason emphasize the importance of the phrase before it. The Militia is necessary, defined as “required to be done, achieved, or present; needed; essential.” Consider that this term appears only six times throughout the entirety of the Constitution, and the Founders referred to none of the three branches as “necessary.” The Second Amendment alone is the only place where a group or entity is so named. Naturally, the Militia is necessary to security (the state of being free from danger or threat), which originates in the verb “to secure,” meaning “to protect against threats.” Jefferson himself, an enormous defender of Militia, delivered in his 1808 annual message that “for a people who are free, and who mean to remain so, a well-organized and armed Militia, is their best security.” So who, or what, is necessary to be secured through the use of a well-regulated Militia? The following two words are free (not under the control or domination of another) and State (intentionally capitalized). This phrase is oftentimes the most misunderstood part of the Second Amendment and subject to the most historical revision. Madison, Mason, and Jefferson did not refer here to a state — an entity with a monopoly on Violence — but to “the particular condition that someone or something is in at a specific time,” not to a geographic region alone (Oxford). During the Constitutional Convention, Mason not only referred to “the free state of Virginia,” but more to the “broader state of freedom” (Willingham). One’s State of existence can be Free or not Free. In essence, the Militia is essential to preserving individual Liberty and universal Freedom. 

4. The right of the people to keep and bear arms

Now that Madison and Mason have linked the Militia with individual and collective Freedom, the third phrase expands on its function. It is vital to remember that a Right is any action that does not cause harm to another sentient being, and arms are “weapons and ammunition of any kind.” Here, the framers defined the Right to own Arms — from firearms to knives, etc. — as a Property Right in accordance with the Non-Aggression and Self-Defense Principles of Enlightenment. Professor Emeritus of Law at Washington State University in St. Louis’ School of Law David Thomas Konig explores the philosophical climate at the 2A’s conception in his 2004 paper “The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of ‘The Right of the People to Keep and Bear Arms.’” Here he provides an excellent reconnection between the shared Scottish and North American Colonies’ experiences. In Scotland at the time,

The right to bear arms was a deeply cherished right whose value lay firmly embedded in the history of the peoples of Britain...because for Scots, as provincial Britons, the issue had special meaning and epitomized their grievances as constitutionally subordinate. Its loss represented not merely a theoretical possibility, but a historically demonstrable fact...The Scottish Experience therefore had special resonance at the drafting of the Constitution and the Bill of Rights. (Konig)

After the “wicked” Jacobite rebellion in 1745, Westminster “strengthened its ban on keeping and bearing arms in the Highlands” (Konig) in order to assert central state control over the peoples’ lives and Liberty — quite literally Hayek’s Road to Serfdom. Amongst other historical grievances, one can easily understand the Scottish reverence of this Right and why the Founders embraced it in the Second Amendment. Militias directly limit a central authority’s ability to trample on Liberty.

Moreover, most of the Founders understood and practiced a moral philosophy known as Natural Law which states that Rights exist objectively in Nature. In addition, it specifies Ownership with overarching clarity. To “keep” means “to have; to own; to retain possession of” thus refined here as maintaining Rightful possession, control of, and Responsibility for the Usage of Arms (Oxford). Scottish Whig politician James Burgh wrote plainly in Political Disquisitions that “the possession of arms is the distinction between a freeman and a slave, it being the ultimate means by which Freedom was to be preserved” (Burgh). As such, “to bear,” meaning “to carry,” arms is an inherent Right that the Constitution only secures. No man, woman, or institution of people can “grant” or refuse to grant a Right that already exists. Frédéric Bastiat expanded on the proper role of law in his book aptly titled The Law in 1850. To Bastiat, the appropriate direction of law unperverted is to protect the Life, Liberty, and Property of man—in other words, Natural Rights. The individual “can only derive life and enjoyment from a perpetual search and appropriation…from a perpetual application of his faculties to objects, or from labor,” which is the origin of Property (Bastiat).  Hence, Property is any object that an individual uses to improve their Life or secure their Liberty. In short, the Right to keep and bear arms is a derivative of Property Rights, directly sustaining man’s Life and Liberty. It is an individual Right, not a licensed privilege, to possess Arms in order to secure one’s Free state.

5. Shall Not Be Infringed

The fourth and final phrase is perhaps the most concrete out of the entire Second Amendment. Mason and Madison ended the 2A by stating that the individual’s Right to own and bear Arms and the people’s obligation to operate a Militia shall not be infringed, meaning “to limit or encroach; to act as so to limit or undermine” (Oxford). Within that definition, we must determine another word. To “encroach” means “to advance gradually beyond usual or acceptable limits” (Oxford). A few quotes:

“To disarm the people is the best and most effectual way to enslave them” — George Mason

“The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government” — Thomas Jefferson

“The most foolish mistake we could make would be to allow the subjugated races to possess arms” — Adolf Hitler

Here the Founders indicate that the government shall not impose any limit on bearing any form of Arms. Today this concept is understood as incrementalism. Though the quote attributed to Hitler above is somewhat dubious, his actions as Reichskanzler undoubtedly support the claim. Associate Professor of Economics at the University of Louisville College of Business Dr. Audrey D. Kline provides an essential connection between incrementalism and Germany’s road to Tyranny. During the Weimar Republic, the government created registries on arms and ammunition ownership “which ultimately fell into the hands of the Nazis,” who used the lists to “methodically...disarm citizens.” Once Hitler passed the Enabling Law in 1933, he used his newfound absolute power to issue executive fiat informing municipal governments that “military weapons and ammunition had to be surrendered” eight days later by the end of March.  On April 4, 1933, Jews were raided of their Arms in East Berlin and “forbidden to own firearms”by 1938. It is important to note that the Enabling Law was an expansion of the 1928 Firearms Law that “was utilized to identify the so-called enemies of the state, locate them...and...confiscate their weapons,” which eliminated “private ownership of firearms from the majority of society.” As a direct result, this fortified Nazi control, and when defenseless Jews were deported seemingly overnight in October 1941, no one could challenge Nazi Tyranny. Hitler’s and other dictators' rise to power mirror one another in this crucial aspect: slowly disarming the populace directly expands state control. Our Founding Fathers distrusted any centralized authority because of both direct experience and the shared Scottish experience as previously examined. The death of the Weimar Republic teaches us that well-meaning laws designed to promote the “common good” and “public safety” quickly manifest dire consequences, neither Safety nor Liberty. 

In the United States today, the gun debate is mired with emotion-based arguments dependent on the “need” to feel “safe” without understanding the Reality-based Right of Arms ownership and gun control’s ineffectiveness. Gunfacts.info is a website that provides references to an eclectic array of authoritative sources that have found:

There are more than 22,000 1 gun laws at the city, county, state, and federal level. If gun control worked, then we should be free of crime. Yet the U.S. government “found insufficient evidence to determine the effectiveness of any of the firearms laws or combinations of laws reviewed on violent outcomes” and also concluded in one study that none of the attackers interviewed was “hindered by any law – federal, state or local –that has ever been established to prevent gun ownership.

In 1976, Washington, D.C. enacted one of the most restrictive gun control laws in the nation. The city’s murder rate rose 134 percent through 1996 while the national murder rate dropped 2 percent.

There is no empirical connection between gun control and increased safety. Violent crime increases as central authorities encroach upon the Right to bear Arms. The same is true for background checks. For example: 

One study contrasting a decade of data between California (after they passed “comprehensive” background checks) and 32 other states (that had not) concluded “found no change in the rates of either cause of death from firearms.” The study found no net difference between firearm-related homicide rates before and during the 10 years after policy implementation.

Limiting a Natural Right through licensing and so-called background checks directly threatens public safety. The result is one entirely contrary to gun control advocates’ driving motivation. No man-made central “authority” can grant a Right that already exists within every individual; any limitation is Tyranny. If gun control advocates — more accurately, anti-gun fanatics — cared about protecting the lives of innocent people, they would oppose gun control entirely. Dr. Gary Kleck from the University of Florida estimates that of 2.5 million gun defenses each year, guns are used 65 times more often to prevent a crime than to commit one. This totals about “400,000 life-threatening violent crimes...prevented using firearms” each year (Reed). Amongst more overwhelming evidence, it must be concluded that Freedom of gun use as a defense against crime and Violence is, and will always be, more effective than any form of gun control.

6. A Matter of Language

Since the Founders were humans, the 2A’s original phrasing is imperfect, and its meaning obfuscated through the years. However, they were men with a comprehensive and deeper understanding of Morality than most of Humanity today. If the Second Amendment were written today, it would read as follows: “Since a well-regulated Militia of the people is necessary to secure their Liberty, the Right of the People to keep and bear Arms shall not be infringed.” 

One of the most pervasive anti-2A arguments is the belief that the Founders did not intend to protect assault rifles. Assault rifles — hereon, more appropriately, referred to as Combat Rifles — are standard issue in America’s militarized police forces and standing army. They are designed for military-style engagements, which the Founders emphasized as the people’s Right in the form of Militia. According to gun-control advocates, the Founders could not have predicted the technological advances we have seen in all kinds of Arms. Nothing could be farther from the truth. In fact, semi-automatic weapons predate (and some were used) in the Revolution. Such include the Pepper Box Revolver, the Belton Flintlock Musket, the Girandoni Rifle, and the Puckle Gun — one of the first “machine guns” patented in 1718. Though the United States maintains the largest “defense” budget and most advanced standing militaries in the world, our modern equivalent to the Founders’ perception of a standing army is militarized police. George Mason stated that “once a standing army is established in any country, the people lose their Liberty.” 5th Vice President of the United States Elbridge Gerry went so far as to ask, “what, is the use of a Militia? It is to prevent the establishment of a standing army.” If Rights, by definition, are Absolute and Universal, how does law enforcement (a standing army by definition) have the right to own and use firearms that the people do not? Not even in Article I, Section 8, Clause 12 where it states that “the Congress shall have the power…to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years” is referred to as necessary, as examined. If not necessary, any standing army does not wield the right to maintain an Arms differential between it and the Citizenry. One can only wonder if all the atrocities and injustices committed at the hands of police and extrajudicial military engagements could have been stopped if the whole people directed necessary Force against Tyranny and the state adhered to its Constitutional limits.

7. Conclusion

Throughout the course of this essay, we have examined the 27 words of the Second Amendment to discern the philosophical origins and Founders’ original intent and what this means for today’s gun debate. James Madison and George Mason were conscientious and direct with their words. Unfortunately, gun control advocates from all sides have obfuscated and revised the 2A’s intent and meaning as well as directed the Law on a course entirely contrary to Liberty. Only through the Founders’ own words and study of etymology can one understand the 2A’s moral and constitutional framework. No central authority can limit the Right to protect an individual’s Freedom and the Freedom of society in the aggregate. Any form of gun control violates the Second Amendment, and rather than ensuring safety; it feeds Tyranny and Violence. Once the majority of the American people understand the importance of Militia and Arms ownership, we can put the gun-control debate aside and quell government overreach.

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Bibliography

Bastiat, Frédéric. The Law, translated by Patrick James Stirling, 4–12. Monee, Illinois: Demetra Publishing, 2020.

Burgh, James. Political Disquisitions; an Enquiry into Public Errors, Defects, and Abuses Calculated to Draw the Timely Attention of Government and People to a Due Consideration of the Necessity, and the Means, of Reforming Those Errors, Defects, and Abuses, of Restoring the Constitution, and Saving the State. London, United Kingdom: Printed for E. and C. Dilly, 1774.

“Debate in Virginia Ratifying Convention.” Article 1, Section 8, Clause 12: Debate in Virginia Ratifying Convention. The University of Chicago Press, 1788. https://press-pubs.uchicago.edu/founders/documents/a1_8_12s27.html.

Deist, Jeff. “Incrementalism and Gun Control.” Mises Institute, March 27, 2018. https://mises.org/library/incrementalism-and-gun-control.

“House of Representatives, Amendments to the Constitution.” Amendment II: House of Representatives, amendments to the Constitution, August 20, 1789. https://press-pubs.uchicago.edu/founders/documents/amendIIs6.html.

Jefferson, Thomas, and Brett F. Woods. “Eighth Annual Message, 1808 3:475.” Chapter. In Thomas Jefferson: Thoughts on War and Revolution, 226. New York: Algora Pub., 2009.

Kline, Audrey D. “Gun Control in Nazi Germany.” Mises Institute, May 8, 2014. https://mises.org/library/gun-control-nazi-germany.

Konig, David Thomas. “The Second AMENDMENT: A MISSING Transatlantic Context for the Historical Meaning of ‘the Right of the People to Keep and Bear Arms,’” 119-159. Law and History Review 22, no. 1 (2004): 119–59. https://doi.org/10.2307/4141667. 

Lee, Richard Henry. The James MADISON research library and Information Center. Accessed July 13, 2021. https://www.madisonbrigade.com/rh_lee.htm.

Madison, James. The James MADISON research library and Information Center. Accessed July 13, 2021. https://www.madisonbrigade.com/library_jm.htm

Mason, George. The James MADISON research library and Information Center. Accessed July 13, 2021. https://www.madisonbrigade.com/g_mason.htm.

Reed, Lawrence W. “Guns Prevent Thousands of Crimes Every Day, Research Shows.” FEE Freeman Article. Foundation for Economic Education, August 23, 2019. https://fee.org/articles/guns-prevent-thousands-of-crimes-every-day-research-show/. 

Tacitus, Publius Cornelius. Annals. NoDictionaries. Accessed July 10, 2021. https://nodictionaries.com/text-word-note/2293056-amicorum-ministeria-militum-uulgarentur-neue-tiberius-uim-principatus-resolueret-cunta-ad.

Willingham, AJ. “27 Words: Deconstructing the Second Amendment.” Constitution Center. CNN Politics, August 11, 2016. https://constitutioncenter.org/images/uploads/news/CNN_Aug_11.pdf.