Why the Second Amendment is Obsolete
While the current debate over private ownership of guns in the United States relates almost entirely to the interpretation of the Second Amendment, the meaning of this amendment is widely misunderstood. Arguments for both regulation and ownership rights are informed by ignorance of history, and the majority of Americans have little knowledge of either the historical context of early America or what the writers and signers of the Constitution actually believed.
The wording of the Second Amendment to the United States Constitution is 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."
The Second Amendment does not protect an unqualified right to own firearms; it recognizes private firearm ownership to be a necessary prerequisite to having a militia and so acknowledges the right to bear arms as part of militia service. Because militias no longer exist in modern America, this right no longer makes sense as the Founding Fathers intended it.
The Second Amendment was not intended to be a check against government tyranny.
There is a large and very vocal number of people in the United States that strongly support the Second Amendment and consider it an important right that still applies to the modern world. In terms of their interpretation of the amendment, almost all of them fall into one of three categories:
- Those who do not base their interpretation on any part of the Constitution or any other historical documents. This includes the people, for example, who make the case that the Second Amendment has something to do with the right to defend oneself or one’s property. As nothing in the amendment or any other part of the Constitution makes any such connection, nor were any of the Founding Fathers ever documented as doing so, there is no reason to take an argument like this seriously.
- Those who do not consider the entire text of the amendment—much less the entire Constitution, and certainly not the historical context—but only the final clause: “…the right to bear arms shall not be infringed.” These people furthermore confuse the word “infringed” with “infringed upon” and consider any government regulation of gun ownership whatsoever to be unconstitutional. By ignoring half of the amendment, these people do not have much of a case and will not be dealt with here.
- Those who consider the right to bear arms a check against potential government tyranny. Essentially, they believe the Founding Fathers meant for the citizens of the United States to rebel against their government were it ever to become necessary to preserve American liberty. This is based on the phrase “necessary to the security of a free state,” and from a cursory reading of the amendment, it seems to make some sense—but only if one ignores the phrase “well-regulated militia.”
The amendment does not say the right to bear arms is necessary to the security of a free state; it says that a militia is. Militias were meant to suppress insurrections, not enable them, and the Second Amendment very clearly puts the right to bear arms in the context of militia service. It has nothing to do with encouraging uprising against the government.
This position is frequently supported by dubiously attributed quotes such as the well-known, “When government fears the people, there is liberty. When people fear the government, there is tyranny,” usually credited to Thomas Jefferson but which he never wrote or uttered.
The Constitution was written to strengthen the federal government against insurrection.
If the Founding Fathers saw armed uprising against perceived government tyranny as justified, they had plenty of chances to support it. Early America was plagued by tax revolts and slave uprisings, which were regularly suppressed by—you guessed it—the militia.
One revolt in particular, Shays’ Rebellion, was actually a major impetus for the writing of the Constitution. In 1787, Daniel Shays of Massachusetts and his supporters took up arms and attempted to overthrow the government in response to oppressive economic policies. With no standing military forces, the federal government under the Articles of Confederation had no power to step in and put down the rebellion, leaving it to the state of Massachusetts to raise a militia to defend itself.
If the Founding Fathers had wanted US citizens to exercise armed resistance against their own government, this would have been a perfect example of that right in practice, but they didn't see it that way. Rather than praising this behavior as patriotic, the Founding Fathers saw the difficulty of suppressing the rebellion as a problem, and they called the Constitutional Convention to form a stronger central government, giving Congress the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” (Article I, Section 8). Considering a major goal of the Constitution was to nationalize the militia to better equip the federal government to put down rebellions, it makes no sense that terms would be included specifically to encourage them.
Militias were used by the government to maintain law and order.
As evidenced by its use against Shays’ Rebellion and later insurrections like the Whiskey Rebellion in 1794, the militia was a critical part of the legal and social order of eighteenth century America. The Founding Fathers were very mistrustful of standing peacetime armies, and law enforcement of the time was much smaller and less organized than modern police forces. The militia bridged the gap between the army, which was reserved for border defense and Congressional declarations of war, and the constabulary, which provided local law enforcement.
The Second Amendment is framed by the qualification that the right to bear arms is a necessary prerequisite to having a militia. By their very nature, civilian militias were only raised when they were needed, meaning that members had to provide their own equipment. This is confirmed in the second Militia Act of 1792:
“…each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years…shall severally and respectively be enrolled in the militia… every citizen so enrolled and notified, shall, within six months thereafter provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack." (United States Statutes at Large, Volume 1, 2nd Congress, 1st Session, Chapter 33)
To “bear arms” did not just mean to own firearms. It specifically meant to bear arms as part of a militia. Owning firearms was more of a duty than a right. Citizens provided for the common defense, using their own weapons, when called to militia duty. Americans were not allowed to have guns so they could overthrow the government, they were required to have them so they could participate in the militia.
It's easy to argue about the Second Amendment if we only look at that single line. However, if we take into account the rest of the Constitution, the laws relating to militias and firearm use, the proceedings of the Constitutional Convention, and the letters and addresses of the Founding Fathers, it becomes very clear that it is really about militias, not guns. In that context, it doesn't really matter whether weapons technology or the social climate has changed in regards to private firearm ownership, because the Second Amendment was never about the right to own a gun. It's about the states' rights to form a militia and the citizens' duty to serve in it. Because militias no longer exist in the United States, there is no institution to which the Second Amendment applies, and it simply has no purpose in modern America.
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.