The meaning of the Second Amendment is being debated once again. Other than in general terms, few discuss the amendment’s origins, the reasons for its inclusion in the Bill of Rights, or how the constitutional framers and ratifiers and early jurists interpreted the amendment.
But such a discussion gets to the heart of the matter. The Second Amendment reads: “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.”
“Gun controllers” interpret “militia” to be a professional unit such as the National Guard. The National Guard Association was not formed until 1878, however, and the wholesale nationalization and professionalization of the militia, the modern-day National Guard, did not occur until the Dick Militia Act of 1903.
Many “gun rights” Americans claim a broad, individualist interpretation: Each American has a right to own a firearm for sport, hunting, or personal protection. (This is not absolute; for instance, felons cannot own firearms legally, and respective states, wisely or unwisely, can regulate gun ownership without violating the Second Amendment.)
What did early jurists and constitutional commentators say regarding the Second Amendment? St. George Tucker in View of the Constitution of the United States (1803), the first systematic commentary on the Constitution after its ratification, describes the Second
Amendment to be “the true palladium of liberty.”
As the preservation of the statue of Pallas in mythological Troy — the Palladium — needed to be protected for the ancient city’s preservation, so the Virginian believed that the amendment ensured liberty’s protection in the United States. If the nation had a “standing army” — Revolutionary era-Americans’ description for a full-time, professional army — while individual Americans were denied the “right to keep and bear arms,” then “liberty, if not already annihilated,” Tucker wrote, “is on the brink of destruction.”
To Tucker, the Second Amendment is the linchpin that ensures the existence of all the other liberties.
Tucker was not alone. Although U.S. Supreme Court Justice Joseph Story believed the national government should have more authority than did Tucker, both jurists interpreted the Second Amendment as liberty’s safeguard. In 1833, Story noted in his influential Commentaries of the Constitution: “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
These jurists repeated a widespread interpretation that had been practiced by the states. The first state constitutions — which remained unaltered and in effect after the Constitution’s ratification — protected individual rights to possess and bear arms and allowed for a state militia.
The Seventeenth Declaration of Rights in the 1776 North Carolina Constitution reads: “That the people have a right to bear arms, for the defense 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 strict subordination to, and governed by, the civil power.” Declaration of
Rights 13 in the 1776 Pennsylvania Constitution is more explicit: “That the people have a right to bear arms for the defense of themselves and the state. … ”
Americans, of all political stripes and regions, believed that the Second Amendment was necessary for individuals and states to ensure that other liberties were protected and to prevent tyranny from encroaching on other liberties.
Dr. Troy Kickler is director of the North Carolina History Project.