According to the Founders, all federal gun restrictions are unconstitutional
Following the recent tragic shooting at a grocery store in Boulder, Colo., President Biden joined a chorus of congressional Democrats demanding strict gun-control legislation, including a ban on guns commonly referred to as “assault weapons.
“We can ban assault weapons and high-capacity magazines in this country once again,” Biden said. “I got that done when I was a senator. … We should do it again.”
Putting aside whether restricting gun ownership for lawful citizens is effective public policy (it isn’t), questions remain about the extent of the power of Congress and president to impose gun laws in light of the Second Amendment.
The Constitution guarantees that “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.”
A plain reading of the Second Amendment ought to be enough to stop nearly all federal gun laws. But over the past century, courts and scholars have watered down the Bill of Rights with convoluted arguments that contradict the overwhelming historical evidence available today.
The truth is, the intentions of those who debated, wrote and passed the Second Amendment are clear: The purpose of the amendment is to protect individual liberty by, in part, stopping the federal government from instituting gun restrictions of any kind, because America’s founders wanted to ensure citizens had the ability to defend themselves against a tyrannical national government and other domestic threats, as well as from foreign invaders.
Evidence of this view can be found in the Second Amendment itself. First, there are no “except” clauses in the text. It simply says the right to bear arms “shall not be infringed.”
Second, although the text does first reference “militias,” in the period in which the Bill of Rights was passed, as well throughout the entire history of the American colonies, militias were composed of individual citizens in a given community who owned guns — farmers, blacksmiths, tradesmen, etc. In 18th century America, militias could not have existed without individual gun rights. The two concepts were inextricably tied together.
The argument that the Second Amendment’s writers intended to restrict individual gun ownership but not gun ownership by militias makes no sense in the historical context.
Additionally, note that the justification for the Second Amendment included in the text is that it is “necessary to the security of a free State.” Preserving the “free State” is at the heart of the Second Amendment (not hunting or self-defense), and one of the biggest perceived threats to freedom in the founding era was a powerful national government.
That is why James Madison, the “father of the Constitution,” wrote in the Federalist Papers that “being armed” is an “advantage” that “the Americans possess over the people of almost every other nation.”
“Notwithstanding the military establishments in the several kingdoms of Europe,” Madison wrote, “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.”
Madison’s Federalist Papers are made even more remarkable by the fact that the passage above was written in the context of trying to convince people that they should not fear the creation of a federal government. The whole point Madison was making is that armed militias and local governments are a deterrent against an authoritarian national force.
To suggest that Madison held this view but then also believed the Second Amendment gave the federal government the authority to decide who can own a weapon and what type of weapon is “safe” enough for non-military use would render Madison’s arguments in the Federalist Papers completely devoid of reason.
There’s also ample evidence from various other letters, speeches and state conventions in the 18th and early 19th centuries that illustrate that the Founders believed the Second Amendment protects individual gun rights and that those rights are important for stopping tyrannical governments, including the federal government.
For example, in Massachusetts, Samuel Adams said a Bill of Rights should include a guarantee that the “Constitution be never construed to authorize Congress … to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”
In a passage about the Second Amendment, early Supreme Court Justice Joseph Story, who was nominated by President Madison, wrote, “The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.”
The notion that the federal government has the power to impose gun-control laws is an invention of the 20th century, when progressive judges, rather than applying the law as it had always been understood, decided to rubberstamp unconstitutional gun restrictions in the name of public safety.
Until the 20th century, almost no one questioned the plain meaning of the Second Amendment. That’s why the first federal gun-control law wasn’t passed until 1934, under President Franklin Roosevelt.
You might think that the Second Amendment is outdated, and that the Founding Fathers were wrong to be afraid of a tyrannical federal government. But if you want Congress to impose gun restrictions, the only truly constitutional way of doing so is by repealing or altering the Second Amendment, not reinterpreting its meaning to contradict everything the people who passed it into law believed.
Justin Haskins is the editorial director of the Heartland Institute. Follow him on Twitter @JustinTHaskins.