Is the Second Amendment for Just the Militia?
Let's begin with the simplest of observations. Our United States Constitution serves two distinct purposes.
The first is to explicitly enumerate the powers and procedures of our nation's central government, which was defined as the three distinct bodies (which, by the way, two thirds of the high school students currently lecturing us about the Second Amendment cannot name) – the Legislative, the Executive, and the Judicial, with levels of authority descending in that precise order.
The second is to explicitly enumerate the limitations of that central government's power, which is the sole reason why our Bill of Rights exists. The Constitution would not have been ratified in 1791 without the addition of these first ten amendments. Therefore, our Constitution would not exist without the limitations to our central government's authority described therein.
Some miss this simplest of understandings.
Take Brett Arends, who, in 2016 after the Pulse nightclub massacre in Orlando, committed to a different argument at Market Watch. He argues that the Second Amendment does not describe a "limitation" of the federal government's authority, as is commonly understood of each of the other nine amendments in the Bill of Rights. Rather:
The Second Amendment is an instrument of government. It's not about hunting or gun collecting or carrying your pistol into a saloon. The Founding Fathers left it up to us to pass sensible laws about all these things. The Constitution is about government.
His argument as to the veracity of this statement is among the more laughable things you'll ever read. He cites Alexander Hamilton in Federalist 29, cherry-picking choice phrases from the essay, filling in the gaps with his own thoughts. For example, Arend writes:
Each state militia should be a "select corps," "well trained," and able to perform "the operations of an army." The militia needed "uniformity in ... organization and discipline," wrote Hamilton, so that it could operate like a proper army "in camp and in the field," and so that it could gain the "essential ... degree of proficiency in military functions."
Hamilton was explicitly arguing against a standing, full-time federal military, favoring "well-regulated" militias among the states to preserve liberty from a tyrannical federal government. But Arend's logic appears to be based upon nothing more than an observation of the fact that a "well-regulated militia" is cited by both the Second Amendment and Federalist 29, so therefore, Federalist 29 must be making the case that the Second Amendment's purpose is to secure solely the militia's "right to keep and bear" firearms, not the right of "the people" as the Second Amendment explicitly states. There is nothing more that binds Federalist 29 to Arend's claim.
Perhaps it's pertinent to note, however, that there are mountains of practical examples among Hamilton's contemporaries refuting that claim.
Samuel Adams, in 1788 (the same year this Federalist Papers essay was published), said plainly that the "Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
James Madison, in 1789, said before the explicit language of the 2nd Amendment had been ratified (emphasis added) that the "right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country."
George Mason, in 1788 to the Virginia Ratifying Convention: "I ask, sir, what is the militia? They consist now of the whole people, except a few public officers."
Even Hamilton, in Federalist 29, asserts the same. It's pretty clear that Brett Arend missed a key point Hamilton makes in the essay.
Arend offers that "Hamilton was scathing about the idea that the 'militia' could mean every Bob, Billy, and Benjamin with a musket," saying Hamilton wrote that a militia is "the only substitute that can be devised for a standing army, and the best possible security against it."
But that's not the whole quote by Hamilton in Federalist 29. It actually reads (emphasis added):
[A]n army of any magnitude ... 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 or the use of arms, who stand ready to defend their own rights and the rights of their fellow citizens. This appears to me the only substitute for a standing army, and the best possible security against it, should it exist.
This is the sentence immediately before the one Arend references, which specifically cites that a "large body of citizens" – i.e., every law-abiding "Bob, Billy, and Benjamin" – should be both disciplined and armed with weaponry comparable to the "standing army," and that this is the "best possible security against [a standing army], should it exist." Arend conveniently left that last bit out in his selective dissection of the essay, too. Because that "standing army" does exist, and Hamilton's words are still relevant.
Hamilton's prescription for liberty was explicit. It describes an armed populace. Never once does he say guns should be limited among law-abiding citizens by the federal government, the tyranny feared by the anti-Federalists, whom he was entreating or hoped to pacify with this essay.
Like the Second Amendment, Hamilton is describing the necessity of a "well-regulated militia" as a reason for an armed populace. Given that a "well-regulated militia" will, at times, be necessary to "the security of a free State," "the right of the people to keep and bear arms, shall not be infringed" by the federal government.
This is all easily understood and sensible. Why is that wisdom disavowed by modern gun-grabbers, and worse, why are Hamilton's words being misrepresented?
Leftists lost this battle long ago, because suggesting that the Second Amendment applies only to protect a "state-sponsored militia" and not "the people" was always a losing battle when fought on the grounds of reason. The only way this "militia" boondoggle could succeed would be through revisionist assumptions about a "living Constitution" and judicial activism, not observation of history or honest appraisal of our Constitution's purpose.
And thankfully, the Supreme Court abrogated all of that nonsense in recent years in the cases of Heller v. District of Columbia and McDonald v. Chicago.
Look no farther as to why former justice John Paul Stevens (whose last case over which he presided was McDonald) recently penned an op-ed for the New York Times calling for the repeal of the Second Amendment. It is nothing short of surrender to the unmistakable logic of the Second Amendment's purpose. For the sweeping gun regulation that the left demands to be found consistent with the Constitution, the Second Amendment must first be abridged. And that will not happen anytime soon.
Like most gun rights advocates, I appreciate Stevens's honesty, and I welcome the left's efforts to try.
William Sullivan blogs at Political Palaver and can be followed on Twitter.