Happy Constitution Day! It was September 17th, 1787 when delegates to the Constitutional Convention in Philadelphia put pen to paper and signed the Constitution, and we’ve been arguing about its meaning ever since. On today’s Bearing Arms’ Cam & Co, we take a closer look at how the debate over the Constitution helped to create the Second Amendment (though not the right to keep and bear arms itself).
Almost as soon as the text of the Constitution became public, there were fierce debates between those that supported ratification (known as Federalists) and those who opposed it (the Anti-Federalists), primarily on the grounds that it gave far too much power to the federal government. Leading intellectuals on both sides took to the pages of our nation’s newspapers to argue and debate the merits and drawbacks of the new framework of government, and in January of 1788, James Madison, writing under the pseudonym “Publius”, published what became known as Federalist 46, in which he wrote approvingly of the right of the people to keep and bear arms as a check on any tyranny that might be imposed by the federal government.
Madison’s take was that the Constitution itself provided enough checks and balances that tyranny shouldn’t be a huge concern for American citizens, but he was willing to game plan what might happen in a worst case scenario. The fact that Americans possessed the right to bear arms was the final and best guarantee that a tyrannical government would be opposed by the People.
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
Many Americans weren’t convinced, and ultimately the guarantee of a Bill of Rights was necessary to secure enough votes to ratify the Constitution. While it’s largely ignored today, the Preamble to the Bill of Rights makes its purpose clear:
The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
In other words, We the People maintain a healthy skepticism when it comes to governmental power, and despite the assurances of Federalists, we think it’s best that we have a Bill of Rights that restricts the power of the federal government to infringe on our rights.
Note that the Bill of Rights didn’t actually create any rights at all. It protected pre-existing rights that Americans were concerned about losing, including the right to keep and bear arms.
As for the idea that the Second Amendment only protects some sort of collective right to join a militia, all you have to do is look at some of the state constitutions that were adopted contemporaneously with the U.S. Constitution to see that isn’t the case.
Here’s what Pennsylvania’s 1790 constitution had to say about the bearing arms:
The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.
Kentucky’s 1792 constitution contained almost identical language:
That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.
James Madison and other Federalists may have thought that a Bill of Rights was ultimately unnecessary, but they didn’t dispute the rights that are protected by that document, including our right to keep and bear arms protected (but not created) by the Second Amendment to the U.S. Constitution. No matter how much gun control advocates may object, it’s clear that that our individual right to keep and bear arms was seen as a fundamental right by the Founding Fathers. Now it’s up to our generation to keep it that way.