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Original Sources Underlying the Second Amendment

With Heller about to be argued, a lot of folks are debating what the Second Amendment means. But what does the historical record really show?

A cool (and useful) website is ConSource, which is a free, fully-indexed online library of constitutional sources. Apparently the lawyers (on both sides) have been using ConSource to track down historical references.

The website not only has an image of the Constitution posted on it, but also lots of useful related sources (e.g., the Federalist Papers and ratification debates).

Here are the gun-related documents on ConSource related to the Second Amendment:

The Second Amendment

Federalist 4

Federalist 29

The Dissent of the Minority of thePennsylvania Convention (Dec. 18, 1787)

Virginia Ratification Debates

Massachusetts Ratification Debates

Pennsylvania Ratification Debates

Madison's Resolution for Amendments to the Constitution

House Committee Report

Amendments Proposed by the Virginia Convention (June 27, 1789)

Articles of Amendments as agreed to by the Senate (Sept. 14, 1789)

Amendments to the Constitution (Sept. 28, 1789)

House Debates (Aug. 17, 1789)

House Debates (Aug. 21, 1789)

There are also some interesting secondary sources, specifically letters of the Framers:

John Randolph to St. George Tucker (Sept. 11, 1789)

George Mason to John Lamb (June 9, 1788)

Jeremy Belknap to Paine Wingate (May 29, 1789)

Fisher Ames to Thomas Dwight (June 11, 1789)

Fisher Ames to George R. Minot (June 12, 1789)

I can't say I've made a fully study of every bit of evidence. But there is lots of ammunition for the individual rights proponents in here.

Brett Bellmore:
I would think the anti-Federalist papers would be more to the point; If the Federalists had had their way, there wouldn't have been a Bill of Rights, after all.
3.17.2008 8:59pm
Brooks Lyman (mail):
In addition to those domestic sources, there was an existing body of European thought on the subject - Machiavelli, Beccaria, Blackstone, the English Bill of Rights and related laws - the ideas behind the Second Amendment were not an original invention of the American Founding Fathers, although they were one of first (and nearly the only) to codify the principle without waffling on the subject: the English right to arms talks about limiting it to Protestants and subjecting it to the laws, for example. The Second Amendment doesn't limit the right in any way, except the obvious prohibition of arms possession by criminals and the insane, which I assume is somewhere in the Common Law (?).
3.17.2008 9:22pm
Bill N:
ConSource is a great resource--I saw a presentation on it over the summer, before it went live. One interesting note: they are raising money for the project by selling ads on each document--look in the upper right hand corner of the entry for the Second Amendment (or any one of the documents). It says, "To adopt this document, please call...." I wonder how long it will take for the NRA to adopt the Second Amendment, or the ACLU to grab IV and V. Budweiser to grab XVIII and/or XXI?
3.17.2008 9:27pm
Cornellian (mail):
Bill N,

The military had better grab the Third Amendment before someone else does.
3.17.2008 10:25pm
Bill N:
How about: "The Third Amendment brought to you by The Marines--The few, the proud, the constitutionally quartered."
3.17.2008 10:38pm
AnonymousPoster:

Brooks Lyman:
...The Second Amendment doesn't limit the right in any way, except the obvious prohibition of arms possession by criminals and the insane, which I assume is somewhere in the Common Law (?).

I've always been curious about this - and what Heller may mean for it. If the 2nd amendment really is a individual right, then, just like the 1st,or the 5th, shouldn't it always apply? What is the legal justification for taking the right away from someone who has been convicted of a crime in the past, or who has been judged insane?
Mind you, while in custody, there are obvious restrictions on your rights, as there should be. But once you have completed a sentence or supervisory period, what justifies the restriction of your 2nd amendment rights (or the same type of rights given under your state constitution)?
3.17.2008 11:51pm
David E. Young (mail) (www):
Mason's letter to Lamb of June 9, 1788, included the completed Bill of Rights from the Virginia Ratifying Convention Antifederal Committee Mason was chairman of. In the letter, he noted that the Committee had not yet dealt with any amendments to the militia powers. Thus, the Second Amendment predecessor, already completed and included in that proposed Bill of Rights sent with the letter, was not intended as an amendment of the militia powers. It was the "great and essential rights" in Mason's proposed Bill of Rights that Madison promised to support in order to get enough votes in the Virginia Ratifying Convention to obtain the Constitution's adoption. Mason's Bill of Rights was made up entirely of provisions of the Virginia Declaration of Rights with added provisions from those of the other states. These are the very foundation of the first eight amendments and the ultimate source that Madison relied upon for his proposals to Congress. The Convention adopted Mason's proposed Bill of Rights almost verbatim. The two-clause Second Amendment predecessor was adopted verbatim.

Mason's Bill of Rights proposal, sent on to John Lamb in New York, was the foundation on which the New York Ratification Declaration of Rights was directly based. North Carolina adopted the Virginia Ratifying Convention's proposed Bill of Rights verbatim when it refused to ratify the Constituion. Thus, by September of 1788, three ratifying conventions had proposed bills of rights based directly on that of George Mason and the Virginia Convention Antifederalists.
3.18.2008 12:26am
Sedgequill:
Is the Second Amendment text the most analyzed and most controversial complex sentence in history? Would that the author(s) had composed the amendment text of simple sentences or a compound sentence. I say that as one who is quite fond of complex sentences, despite the difficulty these days of getting one spoken without interruption.
3.18.2008 12:33am
Tony Tutins (mail):

What is the legal justification for taking the right away from someone who has been convicted of a crime in the past, or who has been judged insane?

For felons, the right is taken away at the time of conviction. The state may deprive the felon of his life, liberty, and/or property, provided that the state complies with due process. The state can restore his liberty without restoring his property (in the case of fines); why would the restoration of liberty be accompanied by the restoration of his civil rights?

An insane person is not responsible for the consequences of his acts. He literally would have a license to kill. Keeping firearms away from such a person is common sense.
3.18.2008 1:55am
Tony Tutins (mail):

Would that the author(s) had composed the amendment text of simple sentences or a compound sentence.


The Second Amendment is a very simple sentence, with one subject -- right -- and one predicate -- shall (not) be infringed. Only the absolute adjective, with its present participle -- being -- looking oddly like a verb, confuses people.

The beginning of the sentence is simply the word "militia". All the other words in the first part of the sentence serve only to modify the word militia.

Googling shows the Second Amendment is diagrammed here. Being a geocities site, its bandwidth may be quickly exceeded, however.

Just read it as "the right to keep and bear arms shall not be infringed."
3.18.2008 2:13am
Cornellian (mail):
What is the legal justification for taking the right away from someone who has been convicted of a crime in the past, or who has been judged insane?

For felons, the right is taken away at the time of conviction. The state may deprive the felon of his life, liberty, and/or property, provided that the state complies with due process.


Not really a satisfactory answer though. If all that's required to extinguish second amendment rights is a conviction with due process, what would stop the state from imposing a life time ban on firearms ownership for everyone convicted from anything from a parking ticket on up?
3.18.2008 3:24am
Cornellian (mail):
Awesome website by the way, I'm totally bookmarking that.
3.18.2008 3:24am
A.W. (mail):
You left out the best Federalist paper on the subject: Federalist 46. In discussing why Americans are free and europeans aren't, it says:

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors."

http://www.constitution.org/fed/federa46.htm
3.18.2008 10:13am
Tony Tutins (mail):

what would stop the state from imposing a life time ban on firearms ownership for everyone convicted from anything from a parking ticket on up?

The Supreme Court. Originalists would realize that at common law, felons could be deprived of their lives, so being deprived of the right to vote, serve on a jury, or hold public office (even the petty office of Notary Public) are minor deprivations. The real issue is distinguishing felonies from petty offenses: An acquaintance of mine -- a hunter, veteran, and target shooter -- became a felon when he let a two-months-underage girl lick his lollipop. He can apply to have his civil rights restored after twenty years go by.
3.18.2008 12:42pm
Sedgequill:
Would that the author(s) had composed the amendment text of simple sentences or a compound sentence.



The Second Amendment is a very simple sentence, with one subject -- right -- and one predicate -- shall (not) be infringed. Only the absolute adjective, with its present participle -- being -- looking oddly like a verb, confuses people.

The beginning of the sentence is simply the word "militia". All the other words in the first part of the sentence serve only to modify the word militia.

I do tend to do something that grammar mavens, strict constructionists of the grammarian kind, would not accept; i.e, to expand linguistic constructions that rely on what is understood or implied. A construction called a nominative absolute or absolute phrase is easily made into a clause that takes nothing away from the writer's or speaker's intended meaning. For instance, one could begin a sentence with "All things (being) considered,"; or, with "When all things are considered,"—the second one undisputably a subordinate clause—without any difference in conveyed meaning. In my thinking, with which others may and do disagree, I expand "A well regulated militia, being necessary to the security of a free state," into "Because a well-regulated militia is necessary to the security of a free state,"; I don't believe that I distort the meaning of the original wording by doing so.


The absoluteness of a phrase, if conventional grammar is accepted, does not make the phrase expendable as to the meaning of a sentence. Some grammarians explain that an absolute phrase or nominative absolute modifies the entire sentence. Neither would a subordinate clause be expendable; the loss of either would be likely to convey a slightly to extremely different meaning to the reader or hearer of a sentence.

Just read it as "the right to keep and bear arms shall not be infringed."

No, thank you. My treatment of wording would be a step too far to many, but truncation not resulting from the constitutional amendment process is not the solution for me.
3.19.2008 11:32pm