Was the Second Amendment right to bear arms intended to preserve state militias?

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  • It was one of many reasons for the 2nd amendment, and it isn't entirely clear what the exact intentions were. Guns and gun ownership were very different when the amendment was drafted. For example it was also probably intended to allow frontiersmen to own guns to provide food for their families/community. – Ron Beyer Nov 28 at 15:46
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    I'm voting to close this question as off-topic because it is a political question dealing with intent; it is not about the law or legal process. – Nij Nov 28 at 22:06
  • @Nij intent is important to interpretation. – phoog Nov 28 at 22:37
  • But the question is solely about intent, making it a purely political question. It does not approach interpretation at all. If it was about the interpretation applied in a given hypothetical scenario or actual historic case, that would make it about the law. @phoog – Nij Nov 28 at 23:58
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    @Nij I would infer from the fact that the question was asked here at Law that it is implicitly about interpretation. – phoog Nov 29 at 15:18

As a matter of history, the answer is of course unknowable.

As a matter of law, the answer is that the Second Amendment was intended to preserve more than just state militias. Instead, it was adopted to preserve the right of "all able-bodied men" to bear arms, regardless of their membership in any government-sanctioned fighting force. Importantly, whatever the purpose of the Second Amendment, it does not, as a matter of law, limit the actual effect of the Second Amendment.

This interpretation comes from District of Columbia v. Heller, 554 U.S. 570 (2008). I'll note that this interpretation -- the historical analysis in particular -- continues to be the subject of quite a bit of dispute. I don't purport to adopt or dispute the interpretation, merely to explain it.

The Court begins by looking at the text of the Second Amendment:

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 Court then breaks the Amendment into two pieces:

  1. The prefatory clause: "A well regulated Militia, being necessary to the security of a free State."
  2. The operative clause: "The right of the people to keep and bear Arms, shall not be infringed."

Prefatory clause: The Court begins with its definition of "militia" from United States v. Miller, 307 U. S. 174, 179 (1939): "[T]he Militia comprised all males physically capable of acting in concert for the common defense.” Defining it as men capable of acting for the common defense, rather than actually acting for the common defense, suggests that the term is not limited to the army, the national guard, a state militia, or any other fighting force that actually exists. Instead, it can encompass anyone who theoretically could be part of such a force.

The Court then defines "well regulated" broadly. "Well regulated" does not refer to any regulations or laws imposed on the militia. Instead, it means "nothing more than the imposition of proper discipline and training."

It also defines "security of a free state" broadly, saying that it doesn't mean "free state" as in New York or Georgia, but rather "free country."

Operative clause: The Court observes that the language implies an already-existing "right of the people," which in turn suggests a right that belongs to individuals, not to the collective. "Keep" means "have," and "bear" means carrying for defensive purposes, regardless of whether the bearer is participating in structured military activity.

Determining what "infringe" means is sort of the key component, and this is where the Court does the bulk of its historical interpretation, which can be boiled down to a few essential observations:

  • The English Bill of Rights protected Protestants’ right to be armed against royal militias targeting dissidents
  • Blackstone said that the right to bear arms is one of “resistance and self-preservation”
  • The Second Amendment was a response to English attempts to disarm colonists

Based on those observations, the Court concludes that the Second Amendment was adopted give Americans the right to possess and carry weapons to protect themselves in the event of a confrontation -- not necessarily limited to a confrontation with a hostile nation.

The connection: The Court then looks at how the two clauses belong together. The analysis is longer than it is interesting, but it essentially concludes that (a) a historical analysis indicates that the public was concerned that Congress may try to disarm the public; and (b) the prefatory clause was meant to announce a purpose for the operative clause, but not to limit its reach. Therefore, the right to keep and bear arms goes beyond the militia-related purposes that inspired it.

The dissenters obviously have quite a bit to say about all of this, but they lost, and so their opinions are currently not very useful for the purposes of legal analysis.

  • With related to the connection, keep in mind that the specific event that lead to the Revolutionary war was that the British were moving to disarm the towns of Lexington and Concord, which were pretty much on the edge of the frontier at the time. Most of the people there had several legitimate purposes for firearms ownership including hunting/defending against wild animals and militia action against Native American raids. This would be the reason for the new nation's concern... the war occurred specifically because of this issue. – hszmv Nov 28 at 18:52
  • All US able-bodied males between ages 18 and 45 inclusive are legally in the Unorganized Militia if nothing else. You don't have to have any training or any specified responsibilities or any communications with others to be part of a legally specified militia in the US. – David Thornley Nov 28 at 19:09
  • @DavidThornley according to 10 USC 246, the lower age limit is 17, not 18, and the upper is "under 45," which I think excludes 45-year olds. Former "regular" service members are included through age 63 ("under 64"). – phoog Nov 28 at 22:42
  • That statute is not particularly relevant when interpreting the Constitution. According to SCOTUS, militia is 18 and over for Second Amendment purposes. There is no upper age limit. – bdb484 Nov 28 at 22:58
  • Does the court assert the 18-and-over interpretation in US v Miller or elsewhere (it's not in the quotation)? Does the court's interpretation preclude a different statutory definition? Does it even matter for second amendment purposes whether a particular class of people is excluded from or included in the militia? – phoog Nov 29 at 15:23

No, the Second Amendment protects the individual right of self defense, embodied as the individual right to bear arms. The militia portion of the perfunctory clause is important to understand in the 18th century parlance.

Second Amendment

The foundation of the argument for those supporting the individual right to keep and bear arms is the protection of the same enshrined in the Second Amendment. The text is quite clear, and attempts to create confusion or massage it into a restriction are efforts of obfuscation.:

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.

Disaggregated into the individual clauses, translated into plain language into how they would have been understood at ratification:
A well regulated : in proper working order, being proficient
Militia : all able-bodied men who are not members of the Uniformed Services.
being necessary to the security of a free State : a nondespotically governed country
the right of the people : Individual Right
keep and bear Arms : the ability to have and carry arms.
shall not be infringed : The Federal and State Governments do not have the authority to violate the individual right to Keep and Bear Arms

Historic Context

What was the meaning of the Second Amendment as understood by its contemporaries? Was the aim about keeping weapons in your home while not having to be part of the response service (NG, Army)?

From a sister stack exchange, History.se, we have the following:

The historical context shows that it intends that everyone be armed, both for the defense of the state and for their own personal use; that the "militia" is intended to consist of all capable adults; that broad membership and independence from a centralized army is the very thing that makes it "well-regulated"; that people were afraid of the federal government raising an army that out-gunned the general populace; that an armed populace was considered a bulwark for other individual rights, to the point of being used as a defense against the government if it should ever take a turn to the tyrannical; and that the right to be armed was widely considered a natural right on a par with free speech, a free press, etc. A few quotes from contemporary writings:

Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

The Constitutional convention of New Hampshire, in their proposed amendments to the Constitution.

That the people have the right to bear arms for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under the strict subordination to, and governed by, the civil power.

North Carolina Constitution of 1776 (Section 30 in the linked version, except the last sentence there wasn't present in 1776). Similar language is also found in the minutes of the constitutional ratifying conventions of Virginia and New York.

And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms

— Samuel Adams, in the Constitutional convention of Massachusetts.

There are other things so clearly out of the power of Congress, that the bare recital of them is sufficient. I mean "the rights of conscience, of religious liberty — the rights of bearing arms for defence, or for killing game — the liberty of fowling, hunting, and fishing..." These things seem to have been inserted among their objections, merely to induce the ignorant to believe that Congress would have a power over such objects, and to infer from their being refused a place in the Constitution, their intention to exercise that power to the oppression of the people.

— Alexander White, in a response to a minority (anti-federalist) opinion of the constitutional convention of Pennsylvania. The minority opinion said that the Constitution was insufficient because it didn't protect individual rights well enough (i.e. they wanted a Bill of Rights baked into the Constitution). White says that such protection is unnecessary because it's blindingly obvious that the federal government has no right or power to curb those rights, even without their being listed specifically in the Constitution.

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government

— Alexander Hamilton, Federalist no. 28

If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.

— Alexander Hamilton, Federalist no. 29

What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty [...] Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

— Elbridge Gerry, House of Representatives debate on the adoption of the Bill of Rights. (He later became the original Gerrymanderer.)

  • I think your links in the "Second Amendment" section broke. – indigochild Dec 5 at 22:25

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