August 23: Seeds of the Second Amendment

A seemingly mundane August 23 debate over who should govern state militias helps to illuminate the purpose of what later became the Second Amendment. The proposition on the table was to empower the national government to “make laws for organizing, arming & disciplining the Militia, and for governing such part of them as may be employed in the service of the U. S. reserving to the States respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed-“

Elbridge Gerry immediately objected that enabling the national government to “arm” militias “would be regarded as an instrument of Despotism.” James Madison replied that “‘arming’ did not extend to furnishing arms; nor the term ‘disciplining’ to penalties & Courts Martial for enforcing them.”

Madison, displaying again the nationalism we have repeatedly seen, explained that “[t]he Discipline of the Militia is evidently a National concern, and ought to be provided for in the National Constitution.” What is significant is the apparent connotation of the term “discipline,” by which the advocates for this power meant the authority to ensure the state militias were adequately prepared to defend the nation. That was evident both in the proposition on the table (“training the militia according to the discipline prescribed”) and in the ensuing debate. Madison, for example, complained that “[t]he States neglect their Militia now,” while Rufus King of Massachusetts, a member of the committee that drafted the proposal, explained that “discipline” meant ensuring readiness.

Elbridge Gerry insisted that national regulation of the militia was a threat to liberty. Madison’s response to that charge sheds light on the meaning of the Second Amendment he would later propose as a member of Congress: “As the greatest danger is that of disunion of the States, it is necessary to guard agat. it by sufficient powers to the Common Govt. and as the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.”

The Second Amendment stands alone in the Bill of Rights in announcing its purpose: “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 debate on August 23 strongly suggests that regulation refers to readiness, while the reference to a “free” state reiterates Madison’s observation that a prepared militia prevented the necessity of a standing army. The context of the militia as an alternative to a standing army is vital to the Second Amendment’s meaning.

Yet in District of Columbia v. Heller, the Supreme Court ruled that the prefatory clause about the militia did not control the meaning of the operative clause establishing the right to bear arms. That right consequently became a personal entitlement to gun ownership divorced from participation in a militia. The August 23 debate helps to show how the Court deformed the meaning of the Second Amendment by decapitating the clause indicating its purpose.

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