Stanford Progressive

Mason, Madison, and Militias: A Progressive for a Right to Bear Arms

By Ross Raffin, published May, 2010


“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” – Second Amendment

A Democrat who argues for a right to bear arms is treated similarly to a Republican who argues for a right to an abortion. Although there is no inherent contradiction in either position, zealots decry any deviation from the orthodox party platform. However, arguing that the Second Amendment refers to an individual right does not mean the gun control debate is over. The fact that Americans have a right to bear arms does not mean they have a right to bear arms in any way they choose. Strict scrutiny, the highest standard available for reviewing the constitutionality of statutes, is far from incompatible with the goals of many gun control advocates. While an individual right to bear arms does not necessarily imply a strict scrutiny standard, this worst case scenario for gun control advocates is illustrative of how to handle Second Amendment regulation, especially after District of Columbia v. Heller (2008) which definitively ruled that there is an individual Second Amendment right. Problems of stare decisis notwithstanding, strict scrutiny would only apply to gun control regulations which do not meet a compelling state interest, are not narrowly tailored for their purpose, or have a less restrictive alternative. While this may be less palatable to some than the traditional rational basis standard, a historical interpretation coupled with a review of literature such as the Federalist and Anti-Federalist papers reveal a convincing conclusion: the Second Amendment refers to an individual right. However, most mainstream arguments on both sides, including those used by the majority and dissenting opinions in Heller, misrepresent the second amendment’s origin in some way. Conservatives rely too often on a faulty connection involving the English Bill of Rights while liberals tend to confuse Anti-Federalist issues with militia powers and the keeping of arms.

The Bill of Rights in Context

The first myth to dispense with is the bipartisan veneration of the Bill of Rights as a God-given appendage to the Constitution. The framers (minus several dissenters) and other Federalists vehemently argued that a Bill of Rights was unnecessary. The Anti-Federalists exploited this apparent weakness by methodically attacking nearly every clause in the Constitution as a tyrannical mandate subject to no constraints. In order to outmaneuver the Anti-Federalists at the ratifying conventions, the Federalists compiled a list of the least restrictive Anti-Federalist demands and promised to have them passed through the first Congress when the Constitution was ratified. The predecessor to Madison’s Second Amendment came from dissenter George Mason’s proposals at the 1788 Virginia Ratifying Convention. In Section 17 of the proposal, Mason combined, word for word, a portion of the Massachusetts’ Declaration of Rights stating that the people have a right “to keep and to bear arms” with Article 13 from Virginia’s Declaration of Rights (which he also helped write) concerning a well-regulated militia as the defense against a standing army.

These Anti-Federalist concerns were not simply theoretical; they were shaped by precedent, both from early England and, more importantly, from recent events. Standing armies, an army supplied by the government during a time of peace, were the main tool monarchs used to impose their will in 17th century England. In order to counter an uprising of armed men, Catholic King Charles II used the Militia Act of 1661 and the Game Act of 1671 to individually disarm his Protestant enemies. After King James II was overthrown in the Glorious Revolution of 1688, the winners reacted to the Militia Act in the English Bill of Rights, specifically by enumerating the right “[t]hat the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law.”

Conservatives tend to overreact to this superficially obvious analogue to the second amendment. In reality, the English Bill of Rights only protected individuals from the crown, not from the Parliament. The American conception of constitutional rights drastically differed from the English conception. For this reason, when Madison introduced the Bill of Rights in Congress, he specifically said the reasoning behind the English Bill of Rights is “inapplicable.”

The founders did not need to look more than a decade back in order to find a much more relevant example of the danger of standing armies. On September 1st, 1774, General Thomas Gage had a secret military detail seize publicly owned gun powder in the Charlestown powder house. By October 19th, 1774, the British had halted all arms transportation through Boston. To put this in perspective, when the Governor of Virginia seized some public powder and had it placed on a British vessel, Patrick Henry lead a historic march to obtain possession or reimbursement. This explains why Massachusetts was the only state at the time whose declaration of rights included “keeping” as well as “bearing” arms. It also explains why Mason chose to borrow specifically from Massachusetts and not other states declarations with “bear arms” language.

Mason on Militias and Arms

The main misconception on the liberal side involves the difference between Anti-Federalist concerns with the federal militia power and Federalist concerns maintaining pre-existing natural rights. Anti-Federalists worried that Article 1, Section 8 gave the Federal government the ability the destroy state militias through lack of funding and disuse. George Mason debated this issue at the Virginia Ratifying Convention on June 14, 1788 and specifically asked that “in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them.” Contrary to the arguments of many “collective right” advocates, Mason’s solution for this was not Section 17 of the 1788 Virginia Ratifying Convention proposal. Mason’s militia power amendment found voice in Virginia’s proposed Constitutional Amendment 11, that “each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.”

A second worry, which was debated heavily on June 16, was that because the Federal Constitution overruled State Constitutions, the Federal Constitution would also overrule the bill of rights passed by states. This was when Patrick Henry made several of his more famous witticisms, including saying that the Federalists “have a bill of rights [in Virginia] to defend [them] against the state government, which is bereaved of all power, and yet [they] have none against Congress, though in full and exclusive possession of all power.” Henry opened the discussion by reading the eighth to thirteenth articles of Virginia’s declaration of rights which were later incorporated as the first eight amendments of the U.S. Bill of Rights. Recall that the thirteenth article of the Virginia Declaration of Rights is Mason’s writing on a well-regulated militia. While Anti-Federalist coalitions in only three of the ratifying conventions, Virginia, Pennsylvania, and North Carolina, proposed a militia powers amendment, every single ratifying convention contained a proposed right to keep arms.

The Anti-Federalists at the Pennsylvanian Ratifying Convention followed the same reasoning as those at the Virginia convention. Their minority bill of rights, later printed as “Reasons of Dissent,” included “that the people have a right to bear arms for the defense 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.” This immediately dispels the notion that “bear arms” refers only militia related action, a stance held by several amicus briefs in both Heller and its due process-based sequel, McDonald v. City of Chicago.

The Heller majority, written by Justice Anton Scalia, made the strangely obvious mistake of ignoring that the English Bill of Rights did not limit the legislator. Madison commented that the bill had “gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite.” The Stevens dissent, on the other hand, confused Anti-Federalist militia power concerns with reproducing state-guaranteed individual rights on a federal level. While the Heller majority is closer to the truth than the dissent, the gap between common historical interpretations and both Heller opinions were staggering at times.

Rights and Regulation

The belief that the Second Amendment refers to individual rights does not imply a massive reversal in gun control. In a worst case scenario, the Constitutional implication would be that any law concerning the regulation of keeping and bearing arms must meet a higher standard of review than normal, known as strict scrutiny. In order to pass strict scrutiny, a law must have a compelling government interest, be narrowly tailored to the situation, and have no less restrictive alternative. Under rational basis, the alternative to strict scrutiny, the court would defer to the legislator if there is some reasonable possible rationale for the law.

The switch from rational basis to strict scrutiny would have a continuum of effects. At one extreme, the banning ownership of bazookas would pass strict scrutiny due to the immense government interest and narrowly tailored construction. At the other end, cases like District of Columbia v. Heller would result in repealing gun control laws which are found to be overly restrictive or not narrowly tailored. Unlike freedom of speech or religion, there is always a compelling state interest when gun control is involved; the main challenges will come from regulations being considered unnecessarily restrictive or overly broad. The interaction of regulation and the Second Amendment individual right to bear arms, not the existence of an individual right to bear arms, is the rightful arena of debate.


9 Comments »

  1.  Paladin, May 20, 2010 @ 3:39 pm

    And why exactly was the phrase, “shall not be infringed” included in the 2A? How do you explain the intent of this phrase with your assertion that the right is subject to infringement even under “strict scrutiny?”

    Also, why is it that that phrase, “shall not be infringed”, is not even mentioned in the Heller decision nor any other of the Supreme Court’s analysis?

    Inquiring minds of freedom would like to know.

  2.  Richard Allen Pierce, May 20, 2010 @ 3:48 pm

    “The first myth to dispense with is the bipartisan veneration of the Bill of Rights as a God-given appendage to the Constitution.”

    The main reason that the federalists were against a bill of rights was they were afraid that future generations may come to believe that if the right was not listed then the Government had the power to regulate that right. A prime example of that is the no-fly list. All US citizens have a right to travel anywhere and by any means they choose. The government does not have the right to prevent them without due process of law. If a person is deemed to dangerous to fly, then they need to be tried and convicted by a court of law, where the defendant has the right to address his accusers. The whole purpose of the second amendment is to afford the people a last means of defense in case our Government should ever turn to tyranny. Nice try, but your logic and history does not hold water. The drafters were well aware of how governments have always used game laws (gun control laws) as a means to disarm the public. Allowing the government to pass gun control laws is the same as giving the keys to the henhouse to the fox. It is why the Second Amendment has “Shall not be infringed”. I’m afraid to tell you, but every type of weapon that is issued to a soldier in our military today is the birth right of an American, including bazooka’s.

  3.  FrankInFL, May 20, 2010 @ 6:39 pm

    There is a fundamental difference between the English Decl of Rights and our Constitution. The former presumes that all power originates in Parliament and the Crown and merely allots to certain of the people rights granted by a benevolent master. The latter presumes that all power originates in the people, and further implements the axiom that rights come from God or nature or whatever, but NOT from the Constitution or government.

    That is: the RKBA existed before there was a Constitution and as ChJustice Waite noted in Cruickshank “…is not dependent on it [the C] for its existence.”

    What, then, might be the meaning of those words “shall not be infringed”?

  4.  Mariah Puzzle, May 21, 2010 @ 12:24 am

    The Fourth Amendment protects people against unreasonable search and seizure, a safeguard only recently extended to the states. Mariah Puzzle

  5.  HerbM, May 21, 2010 @ 9:47 am

    Since NO gun control law has been — nor likely can be — shown to actually work, there is no chance that any of them can pass strict scrutiny. They server no compelling state interest nor purpose, and any random method, e.g., outlawing bubble-gum, would work as well for the supposed purposes.

    None of the US Department of Justice, CDC, nor the National Academy of Science has been able to identify any (ANY!) gun control law which can be shown to reduce any (ANY!) of murder, violent crime, suicides nor accidents.

    When laws don’t serve any purpose they must NEVER be allowed to infringe constitutionally protected rights.

    BTW, this is even true of the ‘obviously reasonable’ NICS/Brady background check which isn’t even enforced on criminals.

    Less than 100 criminals are prosecuted each year for Brady/NICS violations — and the vast majority of these are because the authorities needed to arrest or prosecute a criminal but can’t make the real charge stick, or as a “predicate felony” for a conspiracy or RICO charge.
    http://www.usdoj.gov/oig/reports/ATF/e0406/final.pdf

    Clearly a law that cannot be shown to work, and which is only enforced on the law-abiding is an egregious infringement of freedom.

    That is just COMMON SENSE, right?

  6.  admin, May 29, 2010 @ 8:58 pm

    Paladin- Even at the time of the founding, there were laws controlling the bearing of arms. For instance, you couldn’t carry a gun in an open marketplace largely because at the time guns were very good at going off unexpectedly. Strict scrutiny by definition tells you when the government can “infringe” on rights. Under strict scrutiny, nearly all of the first eight amendments have all been curtailed in some way. Strict scrutiny defines when a right can be curtailed (see U.S. v. Carolene Products).

    “Shall not be infringed” was not analyzed in Scalia’s opinion separately like “keep” “bear arms” and “militia.” However, it was analyzed extensively in the Linguist’s amicus brief, if you are interested. There was no discussion because the case law on “infringed” has been studied in other cases (though I’m not sure which). Suffice to say, it does not equate to an absolute.

    You cannot ban certain weapons, but you can regulate their usage.

    Richard Allen Pierce- Every Supreme Court and Attorney General in America’s history disagrees with you. If you look in the historian amicus briefs in McDonald v. City of Chicago you will find multiple examples of gun regulations at the time of the founders. The game laws were used for total disarmament, that would be completely unacceptable to the founders. Regulation of keeping and bearing would not be unacceptable.

    This was never an “all or nothing” issue to the founders. I find it amazing that so many people today take such a simplistic view of plenary powers. Mason didn’t.

    FrankinL- you seem to agree with me entirely except for asking what I think “shall not be infringed” means. As the Supreme Court and numerous scholars have pointed out, whatever you plan to argue counts as “infringing” can’t include the gun regulations at the time of the founders. As Scalia argues, it would not count as infringement unless you reach a Heller-like scenario where the ability to defend yourself is taken away (via trigger-locks and the like).

    HerbM- The question is what the role of the court is. Assuming they pick a reasonableness standard, the only relevant factor for the court is that there is a possible reasonable intent for a legislative act. Even if, empirically, a law is found problematic, if the courts look at it under reasonableness they are only to determine whether one can imagine a reasonable explanation for the law. And before you say it, yeah, that does allow for some pretty stupid laws.

    As to strict scrutiny, you’ll find yourself alone if you hold the academic position that there is no state interest in protecting citizens from gun violence. Recall that “protecting the potential life of a fetus” was the compelling government interest in upholding partial birth abortions. Protecting human life has for a long time been a major interest. Because of how gun registration laws and such are tied into larger regulatory schemes involving police powers, I can guarantee you it would fall under necessary and proper jurisdiction.

    However, I would not be surprised to hear that quite a few current gun laws won’t pass strict scrutiny. To say all wouldn’t pass is silly, the Heller court explicitly reserved federal and state regulatory power.

    Ross

  7.  Kym Ducayne, June 29, 2010 @ 9:07 am

    Sounds like there are some very interesting stories there indeed. It must have took time gathering the research here and so well done. Great stuff

  8.  Paladin, July 20, 2010 @ 6:32 pm

    Just because a law existed at the time of the founding does NOT mean it was constitutional or that it did not violate the fundamental, human rights which precede the establishment of a government or society!

  9.  Paladin, November 14, 2010 @ 5:06 pm

    I’m sorry, did I miss a response to my post of July 20th?


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