“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”
U.S. Constitution (1791)
“A well-regulated Militia…”
One core of the interpretative divide seems to lie in defining a “Militia.” Is it a social construct or a governmental entity? Some may hastily assume that ‘we, the people’ collectively form the Militia.1 2 However, the historical and constitutional evidence suggests otherwise. The Militia is and has always been a group of armed individuals appointed by Congress and organized at the state level.
EVIDENCE:
If the Constitution’s framers intended the Militia to be the “yeomanry” and anyone who desired a free State, we would expect the Constitution to echo this sentiment. The Constitution, however, addresses the Militia explicitly as an apparatus under the State and Federal government.
Article I, Section 8; The Constitution of the United States of America states:
[The Congress shall have Power] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress
U.S. Constitution (1791)
Debate over the second amendment:
Delaware — December 7, 1787
Pennsylvania — December 12, 1787 - Dissent requests fourteen alterations to be made
New Jersey — December 18, 1787
Georgia — January 2, 1788
Connecticut — January 9, 1788
Massachusetts — February 6, 1788 - Massachusetts requests that nineteen alterations be made to it.
Maryland — April 28, 1788 https://archive.csac.history.wisc.edu/Amendments_Proposed_by_William_Paca_in_the_Maryland_Convention.pdf https://archive.csac.history.wisc.edu/md_amendments.pdf https://archive.csac.history.wisc.edu/md_address_of_the_minority.pdf
South Carolina — May 23, 1788 - South Carolina requests that two alterations be made to it.
New Hampshire — June 21, 1788 (the 9th state; this made the Constitution effective) - New Hampshire requests that twelve alterations be made to it.
Virginia — June 25, 1788 - Virginia requests that 20 alterations be made to it.
(- North Carolina requests 26 amendments) https://csac.history.wisc.edu/constitutional-debates/debate-about-amendments/recommendatory-amendments-from-state-conventions/north-carolina-hillsborough-convention-recommendatory-amendments-2-august-1788/
New York — July 26, 1788 - New York issues a circular letter requesting that 33 alterations be made to it, and also that the new United States Congress take positive action on all amendments demanded by other state ratifying conventions.
North Carolina — November 21, 1789 - North Carolina requests that twenty-six alterations be made to it.
Rhode Island — May 29, 1790 - Rhode Island requests that twenty-one alterations be made to it.
The debate over the Second Amendment didn’t happen in a single room on a single day. It was a four-year process that evolved from state-level protests to federal law.
During the battle on whether or not to ratify the Constitution, “Anti-Federalists” refused to support it without a Bill of Rights, fearing the new federal government will disarm the people to impose tyranny.
- Pennsylvania Dissent of the Minority
On Dec 12, 1787, Pennsylvania becomes the second state to vote in support of the Constitution. In response, the Anti-Federalists publish a furious dissent demanding several amendments including one for protecting the right to bear arms individually:
Seventh. 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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers. 3
Minority of the Convention of the State of Pennsylvania (1787)
The rejection of these amendments showed that the founders understood the difference between the private individual right of gun ownership and the collective right to bear arms under a state militia. It is telling that the founding fathers voted against this proposal.
- Massachusetts Compromise and the Adams Amendment
In early 1788, the ratification of the Constitution was in peril as Massachusetts was the first state where Anti-Federalists had a potential majority. To ensure a vote in favor of the Constitution, leading Federalists worked with Anti-Federalist John Hancock to propose a “Conciliatory Proposition” in which Hancock would propose nine amendments to be passed immediately after the ratification of the Constitution.
On the morning of February 6, 1788, during the final hours of the Massachusetts Ratifying Convention, Samuel Adams attempted to introduce various amendments to the Constitution, including one that would have explicitly guaranteed the individual right of citizens to own firearms.
“And that the said Constitution be never construed… to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.””
Samuel Adams in Commonwealth of Massachusetts (1856)
This means the Founding Fathers present in Massachusetts explicitly voted “No” on adding this specific protection of individual gun ownership to their ratification terms. Probably, the main reason why is that it “was judged hazardous to hamper the main issue with further conditions” Wells (1865),
While this rejection was largely political, it at least confirms that the founding fathers in Massachusetts understood there was a difference between the individual and private right for peaceable citizens to keep their own arms, and the collective right to bear arms for the militia.
- New Hampshire’s Proposed Amendment
New Hampshire was the ninth state to ratify the Constitution, which made the document legally binding. However, like many states, New Hampshire ratified it on the condition or strong recommendation that a Bill of Rights be added immediately after.
The convention in New Hampshire submitted a list of twelve proposed amendments to the First Congress alongside their ratification of the U.S. Constitution, the twelfth being:
“Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”
New Hampshire Ratifying Convention (1788)
This proposal, including hundreds of others from each state convention, were sent to the House of Representatives.
Debates over the Bill of Rights
Once the constitution was officially ratified, Madison’s task in the First Congress in New York was to filter over 200 state proposals into a cohesive Bill of Rights. He aimed to satisfy Anti-Federalist demands for liberty without sacrificing federal stability.
When Madison was writing his draft for the second amendment, he chose not to use the language from the New Hampshire proposal (“Never disarm any citizen”) and instead looked to his own state, Virginia, which had proposed language focusing on the “Militia” and the “security of a free state.” The first proposed draft of the second amendment was as so:
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Madison (1789)
There were seven major changes occurred to the original draft before the current text of the amendment:
- Removal of the “well-armed” description of the militia: Since this debate of this removal is not recorded, we can only guess about the resons of its removal. It is possible that they voted this down to make sure the amendment did not imply that the federal government had an obligation to supply the weapons to the militias of the states.
- Anti-Federalists Elbridge Gerry proposed to add “trained to arms” after a well regulated militia as “it would become the duty of the Government to provide this security, and furnish a greater certainty of its being done.” however, as “Mr. Gerry’s motion not being seconded”, the motion died.
- Removal of the Conscientious Objector clause: The clause stating that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person” was deleted in the Senate. Even though this wording passed in the House, we can discover the thought of why this clause was contested. In all of these cases, all support and controversy was under the assumption that the second amendment is in regards to service of a formal militia. United States House of Representatives (1987)
- Fear of Government Manipulation: Elbridge Gerry argued that this clause was dangerous because the government could arbitrarily declare large groups of people “religiously scrupulous” to prevent them from bearing arms. He feared this would destroy the militia, giving the government an excuse to establish a “standing army” (which he viewed as a threat to liberty).
- Fear of Unfairness: James Jackson argued it was unjust for some citizens to defend the country while others did nothing. He proposed that those who refused to fight due to religion should have to pay an “equivalent” (a fee) to support the defense.
- Fear of a Declining Religion: Thomas Scott worried that if religion declined in the future, people with no religion would pretend to be scrupulous just to avoid military service. He argued this would result in a militia that “can never be depended upon.”
- Defense of the Clause: Elias Boudinot argued in favor of keeping the protection. He believed the government should respect the consciences of its citizens and noted that forcing pacifists to fight was useless anyway, as they would “rather die than use [arms].”
- Removal of the phrase “composed of the body of the people” for defining the militia: Though this phrase was in the original drafts for the second amendment, the Senate voted explicitly to remove this from the wording of the amendment. One reason this could be is that if the Second Amendment constitutionally defined the militia as “the body of the people” (everyone), it would force Congress to organize all people which would not be feasible. Much to the dismay of the Anti-Federalists, the wording remained parital towards the Federalist agenda by keeping the idea of a select militia without violating the Constitution.
- Removal of the description of the militia as “being the best security of a free country”:
- Denial of the propsed addition to change “bear arms” to “bear arms for the common defense”:
- Denial of the proposed addition to ban standing armies in peacetime:
- Aedanus Burke proposed to add a change, stating: “A standing army of regular troops in time of peace is dangerous to public liberty, and such shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both Houses; and in all cases the military shall be subordinate to the civil authority. Burke, however, saw”apparent disposition of the committee” and reluctantly recalled his proposal.
- Denial of the proposed addition to add a clause to say that the military would be “under strict subordination to the civil power”:
“being necessary to the security of a free State”
Some critics might question, “If the framers were concerned about the potential for government tyranny, why would they enshrine protections for the same government?” This argument needs to be clarified since anyone who has taken an introductory civics class should have heard of the concept of checks and balances. After all, the foundational idea behind the American experiment was to see if different branches or segments of the government could effectively regulate each other.
In Federalist No. 46, James Madison directly addresses the federal overreach of power. He imagines a hypothetical situation where the federal government steps outside its constitutional bounds. In such a scenario, Madison theorizes that the state Militias would stand with their local government. This makes sense. If the federal government were to impose its oppressive will over the people, a grass-roots militia probably wouldn’t cut it- even if they were to have machine guns.
If the Militias of the States were going to be a reasonable alternative to the military, the founders wished it to be robust enough. Hamilton writes, “If a well-regulated militia is the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of national security.”
In this instance, “well-regulated” refers to the capabilities of the Militia. Hamilton acknowledges that if the people were the Militia, there could be no feasible way to discipline them to be competent militiamen. Such a task seemed so implausible that in comparison to a well-trained Militia, Hamilton states that:
The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution…. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year. But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia… it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. - Federalist Paper No. 29
To defend the security of a free state, we would need a well-trained and well-disciplined Militia. Hamilton explains that this is not, nor could be, the people at large.
The crux of the interpretative divide seems to lie in defining a “Militia.” Is it a social construct or a governmental entity? Some may hastily assume that ‘we, the people’ collectively form the Militia. However, the historical and constitutional evidence suggests otherwise. The Militia is and has always been a group of armed individuals appointed by Congress and organized at the state level.
If the Constitution’s framers intended the Militia to be a personal construct, we expect the Constitution to echo this sentiment. Yet, the Constitution addresses the Militia as a governmental entity.
[The Congress shall have Power] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress… (Article I, Section 8) (usconst?).
As demonstrated in these quotes, the framers explicitly advocated for the governmental establishment and regulation of Militias, with each state authorized and encouraged to organize its own.
Some critics might question, “If the framers were concerned about the potential for government tyranny, why would they enshrine protections for the same government?” This argument needs to be clarified since anyone who has taken an introductory civics class should have heard of the concept of checks and balances. After all, the foundational idea behind the American experiment was to see if different branches or segments of the government could effectively regulate each other.
In Federalist No. 46, James Madison directly addresses the federal overreach of power. He imagines a hypothetical situation where the federal government steps outside its constitutional bounds. In such a scenario, Madison theorizes that the state Militias would stand with their local government (madison1788?). This makes sense. If the federal government were to impose its oppressive will over the people, a grass-roots militia probably wouldn’t cut it—even if they were to have machine guns.
If the Militias of the States were going to be a reasonable alternative to the military, the founders wished it to be robust enough. Hamilton writes, “If a well-regulated militia is the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of national security.”
In this instance, “well-regulated” refers to the capabilities of the Militia. Hamilton acknowledges that if the people were the Militia, there could be no feasible way to discipline them to be competent militiamen. Such a task seemed so implausible that in comparison to a well-trained Militia, Hamilton states that:
The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution… Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped… it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it (hamilton1788?).
To defend the security of a free state, we would need a well-trained and well-disciplined Militia. Hamilton explains that this is not, nor could be, the people at large.
“The right of the people to keep…”
While the “Militia” is clearly a governmental entity, we must grapple with the second half of the text: “the right of the people to keep and bear Arms.”
The term “people” within the Constitution appears to have a level of ambiguity. The “People” who ordained and established the Constitution were the delegates of the Constitutional Convention and state representatives—not necessarily the broader public.
However, when we specifically analyze the right to “keep” arms, the historical record pivots away from the collective and toward the individual. The Supreme Court has acknowledged that the Second Amendment codified a “pre-existing right” inherited from English law. That inheritance comes directly from the English Bill of Rights of 1689, which guaranteed: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” (engbill1689?).
Crucially, this protection was explicitly framed around “defence”—a personal necessity.
This aligns with the most influential legal commentator of the era, Sir William Blackstone. In his Commentaries, Blackstone described self-defense as “the primary law of nature” (blackstone1765?). This natural right was linked to the “Castle Doctrine”—the principle that a man’s home is his sanctuary. If the right to defense in the home was the “primary law of nature,” then the right to “keep” the tools of that defense (arms) in the home was a necessary prerequisite.
We see this confirmed in the state constitutions written by the same generation of Founders. The Pennsylvania (1776) and Vermont (1777) constitutions explicitly protected the people’s right to bear arms “for the defence of themselves and the State” (paconst1776?). The inclusion of “themselves” is the smoking gun: it proves that the legal concept of arms ownership extended to the private defense of the individual.
“…and bear Arms”
While the right to “keep” arms appears individual and home-centric, the right to “bear” arms returns us to the collective, military context established by the Militia clause.
Advancements in data analysis offer new ways to interpret the original intent of the framers. One such method is corpus linguistics, an approach employed by Woods (2020) to scrutinize the phrase “the right of the people” and “bear arms” within the context of American English at the time.
Woods analyzed 153 occurrences of “the right of the people” within the Corpus of Founding Era American English (COFEA). He discovered that the vast majority of these instances were used in the context of collective rights (such as “to assemble” or “choose their own rulers”) rather than individual liberties (woods2020?).
More importantly, Woods scrutinized the terms “to keep and bear” within the COFEA. He identified every instance where the word ‘arm’ or ‘arms’ appeared within four words of any form of the verb ‘bear.’ A random sample of 300 such instances yielded the following breakdown:
- Instances of bear arms in an ambiguous context occurred about 2% of the time.
- Direct quotation of the Second Amendment occurred less than 1% of the time.
- Non-militia/private usage context occurred about 4% of the time.
- Militia/Military context accounts for the remaining 93%.
Even the word “arms” has a collective, military connotation. Baron (2019) performed a similar analysis and found that “bear arms” was overwhelmingly a military idiom. Baron states:
A search of Brigham Young University’s new online Corpus… shows 1,572 instances of the phrase… and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military (baron2019?).
This linguistic evidence is reinforced by the Statute of Northampton, an English law remaining in force during the Founding era that banned men from going “armed by night nor by day” in fairs or markets (northampton1328?). While the home (Keep) was a sanctuary, the public square (Bear) was a regulated space where the carrying of weapons was restricted to preserve the peace.
Conclusion: The Third Way
Careful examination of the Second Amendment reveals that its true essence is not a simple binary.
The language and context of the Constitution, supported by historical evidence and data-driven analysis, suggest a bifurcated interpretation. The Founders, including Madison and Hamilton, perceived the “well-regulated Militia” as a government-regulated body, and the “bearing” of arms as a civic, military duty. This supports the collective interpretation of the Amendment regarding public carry and military service.
However, the “keeping” of arms was grounded in the “Castle Doctrine” and the natural right to self-defense, as evidenced by Blackstone and early state constitutions.
Thus, our understanding of the Second Amendment must shift from a winner-take-all debate to a nuanced “Castle and Citadel” model: safeguarding the individual right to possess arms in the home, while recognizing the state’s historical authority to regulate the “bearing” of arms in the public sphere.
References
Footnotes
Ironically, the “We” in “We the People” could not refer to all the people of the United States, as those who established the Constitution were merely 39 deputies in Philadelphia from the various States, and those who ordained it were the roughly 1,000 delegates elected to special state Ratifying Conventions from the various States. The people in this case could not be the general population.↩︎
I often see George Mason, one of the strongest critics of the constitution, quoted to define the militia as “the whole people” Elliot (1987). It is extremely obvious that Mason understood that the militia was some organized aparatus under the respective states in his arguments against the Constitution. Elliot (1788) For example, under the Constitution, he worried about
• “double sets of regimentals” (something that could only be a worry if the state militia is regimented)
• “neglect” from the government in arming the people (something that could only be a worry if the militia is disciplined by the government)
• “martial law of the militia when not on duty” (I am pretty sure he is not worried that the US Government is the one giving martial law to literally all people)
• “concurrent power” from the United States Congress and the various States (which could only be a worry if the United States Congress and State governments have concurrent power over the militia)
The rhetorical point Mason is making in his debate is specifically against the Constitution’s wording in which the militia of the future could exclude the higher classes as opposed to the current composition of the militia which contains the “whole people”. The full quote for context is:
↩︎I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper [The US Constitution] on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.
Ironically, even the anti-federalists were completely okay with the indiviudal right to bear arms to be restricted as long as it was in response to crimes committed or public safety.↩︎