Bill of Rights, checks and balances, citizen-soldier, counterbalances, Federalist 46, gun control, James Madison, limited powers, militia act, Militia Act of 1903, national guard, natural rights, second amendment, sovereignty of the people, state militias, states rights, U.S. Constitution, usurpation of powers
The following post discusses the original intent behind the Second Amendment. Readers should hold their assumptions, read carefully, and check their conclusion jumping until the end.
The rhetoric over gun control legislation is heating up, yet from no corner of the political spectrum do we hear discussed the underlying constitutional crisis that precipitated this ongoing debate, one that America has lived with for over a century. Unfortunately, the accusations and aspersions thrown from either side towards the other generates more heat than light, and it is nigh time to investigate the original intent of the Second Amendment. Although many alleged constitutional authorities have waxed obliquely on the reasons behind the insertion of this amendment, James Madison left little doubt as to why the arming of citizens was a critical civil liberty. His reasoning can be found in The Federalist No. 46.
I find, however, that far too many Americans do not understand the intent of the Bill of Rights, much less the intent of the Second Amendment, and so it is here I must begin. I suspect this reality arises more from the degraded state of our high-school education in civics than from anything else. For those who are comfortable with their understanding of the Bill of Rights, you can safely skip to the next section.
John Locke asserted that all humans possess natural rights from birth. Natural rights are imbued by the divine or, if one is an atheist, from nature. It matters little: Humans possess natural rights, and those natural rights are inalienable, immutable and intrinsic to the individual.
Locke frames the natural rights as life, liberty and property. Thomas Jefferson, to his credit, re-framed natural rights as life, liberty and the pursuit of happiness, understanding that life can be more expansive than merely possessing property, and that happiness can be found without property, or in addition to property. In addition, for Jefferson and others writing in the 18th century, their understanding of “happiness” hewed closer to our contemporary understanding of “contentment.” Too much baggage is heaped upon “happiness” today, up to and including hedonistic pursuits that completely disregard the natural rights of others.
Locke understood that the individual preceded government and hence, natural rights preceded government. No government, therefore, bestows natural rights. If it were otherwise, governments could bestow – and revoke – the natural rights of individuals. Natural rights imbue the individual with dignity.
America’s founders thus understood the need for a set of civil rights that would protect Americans from the usurpation of their natural rights. That set of civil rights we know as the Bill of Rights, which provides a free social space for citizens to engage the federal government should it fail the good of citizens. The Bill of Rights, for instance, protects freedom of opinion, a proper protection in a democratic republic. A mere democracy only relies on public opinion, and thus under-considers – or perhaps not at all – the necessity for freedom of opinion.
In summary, the following understanding cannot be emphasized enough: The Bill of Rights protects the individual’s natural rights by providing a set of civil rights creating a social space free of political tyranny, one that allows citizens to engage the federal government should that government fail to uphold the greater good, infringe upon the natural rights of individuals, or ignores the voice of the politically powerless.
The Bill of Rights was not inserted into the U.S. Constitution to provide license to those who would yell “Fire!” in a crowded theater, walk naked down a public sidewalk, compromise our environment, protect corporations, or any other matters of license or nefarious legal maneuvers that seek to protect non-individuals.  Natural rights can only be possessed by an individual, since only an individual possesses a conscience that regulates those natural rights and prevents their exercise from degrading into license. License occurs when one individual’s actions infringes upon the natural right of others.
Government is a man-made legal structure to oversee the proper working of a society, and does not hold natural rights, nor a conscience. Governments are created by the law, not by the divine or by nature, and thus do not possess natural rights nor a conscience (this also applies to corporations).
History is rife with examples of government that, when left unchallenged by its citizenry, usurps the rights of its citizens and increases its powers until despotism emerges. America’s founders assumed Americans would continue to pursue civic engagement to protect their natural rights, and hence inserted the Bill of Rights into the U.S. Constitution for those protections, and that purpose only.
First principles are just that simple and at the same time, that complicated.
The Correct Direction of Powers
In The Federalist No. 46, Madison writes a continuation of the issue he covered in No. 45, wherein he discusses the possible – but in his 1787-based estimation, unlikely – threats from federal government powers. To begin, an initial premise needed to be established. Early in the 46th paper, Madison establishes this first principle:
“…the ultimate authority, wherever the derivative may be found, resides in the people alone….”
While weighing the pros and cons of federal versus state authority, Madison comes to rest on the “ultimate authority” that was safeguarded in the U.S. Constitution: The federal government derives limited powers bestowed upon it from the states, and states derive limited powers bestowed upon them by the people. The citizens of the U.S. ultimately hold the sovereignty of the U.S. in their persons, granting limited powers to government for the proper functioning of American society. Powers flow from the bottom up, law flows from the top down.
Engagement in the Extreme: The Second Amendment
Keenly aware that history is filled with examples of governments that have usurped the natural rights of their citizens, in the remainder of The Federalist No. 46 Madison discusses “the federal and state governments… (and) the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other.”
In short, Madison was reviewing what he saw were the checks and balances built into the governmental framework of the American Republic, via the Constitution. Later in the 46th letter, Madison writes this postulation:
“The only refuge left for those who prophecy the downfall of the state governments, is the visionary supposition, that the federal government may previously accumulate a military force for the projects of ambition… That (if) the people and the states should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the states should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their heads… Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the state governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed (state) militia(s) amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence…
“Notwithstanding the 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.” 
State Militias as a Check and Balance
Madison framed the right of citizens to bear arms in the context of state militias (and the state militias filled their ranks with private citizens-turned-soldiers at a moment’s notice), another check and balance against usurpation of powers by the federal government, powers not assigned to the federal government within the U.S. Constitution. In regards to the Second Amendment, this check and balance came into action in the instance of any attempts on the part of the federal government to use military action against Americans to seize unconstitutional powers.
It is telling that in the 226 years since Madison wrote these words, should anyone invoke the same argument today in contemporary terms and publish it in a public forum, it’s very imaginable detractors would distort the argument’s intent and accuse the author of treason. Yet Madison framed the usurpation of powers by the federal government using military force as treason against the people, those who hold the ultimate source of sovereignty of the nation.
It must be added here the critical understanding that the original intent of the Second Amendment did not – nor does not – serve as a warrant for Americans to initiate armed rebellion against the federal government. The Bill of Rights also provides the social and legal space for freedom of speech and the press, all non-violent actions to be used as counterbalances to non-violent usurpation of rights. It is there to protect the human dignity of Americans. As Madison framed it, armed citizen-soldiers in state militias served as a counterbalance only in extreme instances of unconstitutional usurpation of powers by the federal government using military action against Americans.
It is true the sizes of the federal army and the state militias that Madison discussed hold little meaning today. In the 18th century, the number of soldiers represented the efficacy of an army. In the 21st century, while remaining important, headcounts are not the only variable that determines the potential success of a military venture. Today, weapon and surveillance technologies play large roles, too. Yet, Madison held the presence of mind to recognize that not only would the size of an army or militia play a critical role, but also passions and will power: Such unseen variables, per Madison, would play a greater influence amongst the members of the state militias as they fought to protect their states, communities and homes.
The Militia Act of 1903
Fast forward through history, and we find that the militias of the 18th century are now the National Guard units of today. Yet, while Guard units can be activated at the call of a state governor, we also understand these units act as a reserve labor supply that can be pressed into service by the Pentagon.
This change of events occurred in 1903, when Congress passed the Militia Act, which abolished the state militias in favor of Army National Guard units. The Guard units came under the control of the federal government as well as the states, and federal control has been increasing. Since the post 9/11 state-of-emergency declared by then President George W. Bush – otherwise known as Proclamation 7463 – this has allowed the president to call up the National Guard and deploy those troops overseas. (Update: As of 2016, this proclamation has been invoked for 16 years running.)
Proclamation 7463 serves as a clear indication of the National Guard’s role as a reserve labor supply for the Defense Department. Thus, Guard units can no longer be assumed to hold their primary loyalties toward the states in which they reside.
And per the Militia Act, National Guard units can be called upon to suppress rebellions. Strictly speaking, a “rebellion” should be defined as a unilateral violent action against a government. Yet, we implicitly understand that “rebellions” (and “revolutions”) are defined by those in power. Example: For those of the left persuasion still reading this, and who are old enough to remember South Africa’s system of apartheid, just recall how Nelson Mandela and the African National Congress were publicly positioned by the F.W. de Klerk government (and predecessors) in power at that time: The ANC was considered a “terrorist organization,” its members “terrorists.”
Also recall how the ANC was armed. If my memory serves me correctly, I cannot point to a single instance of the American Left calling for more gun control in South Africa in those days. But I digress….
If violent reactions broke out in response to the unconstitutional usurpation of powers by the federal government – initiated with the use military action – we understand that those who joined the reactions would be labeled as traitors or terrorists, rather than the federal government. This is the converse of what Madison wrote in The Federalist No. 46. It then follows that American Guard units would be mobilized against Americans to suppress such reactions.
The Constitutional Crisis
Such a postulation is made simply to highlight the untenable situation in which the Militia Act of 1903 places us. While Madison understood the right to bear arms allowed citizen-soldiers to collectively act as a militia-based counterbalance to unconstitutional usurpation of powers by the federal government using military action, the Militia Act of 1903 undercuts this check and balance, thus creating a constitutional crisis in the U.S. (albeit a very purposefully quiet one) that has existed for over a century. With the elimination of state militias, the original intent behind the citizen-soldier’s existence has been vanquished, with no alternatives in place to fill the breach. The underlying assumption of the Second Amendment – namely, state militias existing fully independent of the federal government – no longer exists.
Therefore, the check and balance provided by the Second Amendment against the unconstitutional usurpation of powers by the federal government in the event of military action against Americans, by default, reverts to the private citizen’s right to bear arms.
The Second Amendment is not first and foremost about protecting arms for their use in hunting, trap shooting or collecting, however worthy those endeavors may be, or for personal protection, however sadly present realities makes personal security crucial. Although important, nevertheless these are secondary considerations.
The realization of the Second Amendment’s raisons d’être leaves us in an uncomfortable position. We are therefore left with the result of citizens arming themselves, yet no longer under an organizing framework of a state militia. However, until another option can be forwarded, if one exists at all, the only viable response to this constitutional crisis is for citizens to retain their arms… any and all arms, considering the Second Amendment’s check and balance. Technology must match technology to be an effective check and balance.
There will be those who will argue vehemently against the sale of assault weapons, but in light of the Second Amendment’s purpose, this argument cannot stand. And for those who will use the hyperbolic argument that this allows an individual to walk down a street and arbitrarily shoot others, would that not represent a severe breach of the victims’ natural rights, as explained above under First Principles? This is a clear case of taking the most extreme form of license, an instance where the shooter clearly holds no conscience and, as I mentioned, for those without a conscience, there is the law.
It is obvious we are discussing an outlying case of federal usurpation of powers here. Yet, we must remember that simply because Americans have not had to call upon the Second Amendment in the 226 years since Madison wrote The Federalist No. 46, does not mean this danger will never arise. As Nassim Taleb reminds us, black swans do exist.
It is also wise to remind readers that the Bill of Rights always revolves around protecting the natural rights of Americans, the free social space created by our civil rights, and the ability to engage the federal government when governance fails the people. If the bearing of arms pertained only to external threats, the protection afforded arms would never have been inserted into the Bill of Rights.
A Lack of Options
The dearth of options emanates from the difficulty envisioning a trustworthy remedy. Moving backwards is not an option. If we were to separate the Guard from federal authority, in exchange for substantive gun controls for private citizens, one cannot help but understand this move would be viewed with grave suspicions and just outrage. The trust once possessed by the people towards their federal (and state) government has, over time, been irreparably damaged. We cannot trust the federal government to properly regulate Wall Street banks, nor protect the privacy of citizens while the Patriot Act provides broad powers of surveillance and intrusion, nor oversee environmentally safe offshore drilling in the Gulf of Mexico, nor deploy proper disaster management in the aftermath of hurricanes, nor protect Social Security (even though Social Security plays no role in the federal deficit). So how could we imagine the federal government developing a trustworthy response to this constitutional crisis?
So what are the options moving forward? It is very difficult to conceptualize them.
Our federal government has centralized, precipitously, over the past 150 years and state governments are now little more than a seamless extension of federal will. Any trustworthy alternatives are not readily apparent, and so the debate over the Second Amendment will continue, for as long as this constitutional crisis holds intact and the trustworthiness of our government remains lacking.
Disclaimer: I am not a member of the NRA, nor was I paid by any special interests, from any quarter, to write this post.
2017.01.21 update: No sooner than the Trump inauguration passed than support for private gun ownership emerged in a newspaper that would have been very hesitant to do so the day before. In a New York Times reflection on Sinclair Lewis’s 1935 novel, It Can’t Happen Here, unwitting support for the Second Amendment emerged:
“If Lewis’s post-election vision is what awaits us, there will be little cause for hope, or even civic engagement, in the months ahead. The only viable options will be to get out of the country — or to join an armed underground resistance.”
This is precisely the context for which James Madison justified the bearing of arms in The Federalist, No. 46 (see long quote block above). The review ends on this note:
“By the book’s closing pages, Jessup has returned to the United States as a disciplined resistance fighter, organizing armed rebellions throughout the Midwest. His transformation illustrates Lewis’s most powerful message: When it happens here, everyone should be prepared to resist. But Jessup’s story also underscores how difficult it can be to sort out what to do at moments of swift political change and social confusion. In our brave imaginations, we undoubtedly do the right thing when fascism comes to America. In reality, we might not recognize it while it’s happening.”
 Trevor Timm, in a 2012 essay on The Atlantic’s website, lashed out against the use of this phrase, “yelling fire in a crowded theater”:
“Without fail, whenever a free speech controversy hits, someone will cite this phrase as proof of limits on the First Amendment. And whatever that controversy may be, “the law”–as some have curiously called it–can be interpreted to suggest that we should err on the side of censorship. Holmes’ quote has become a crutch for every censor in America, yet the quote is wildly misunderstood.”
The idea that others “will cite this phrase as proof of limits on the First Amendment” is a brash generalization, because the use of the phrase is dependent upon context. Here, I use the phrase to suggest that all public actions require responsible citizens to first consider the consequences of public actions upon others, not just to one’s self. This, then becomes a form of self censorship rather that state-dictated censorship. It is only fitting, and here the phrase does not defend state-dictated censorship.
Nevertheless, the remainder of Timm’s essay is worth discussing in brief, since we are dealing with the Bill of Rights.
Timms maintains that the “crowded theater” phrase has become irrelevant, yet frequently used by those using the phrase as the final word “on the lawful limits of the First Amendment.” As the author writes:
“U.S. v. Schenck (1919) had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU’s Gabe Rottman explains, ‘It did not call for violence. It did not even call for civil disobedience.’ “
The Supreme Court also decided two other cases later in 1919 – Debs v. U.S. and Frohwerk v. U.S. – which both considered the speech activities of peaceful anti-war activists who went to prison under the Espionage Act for mild (relative to today’s standards) government criticism. These three rulings, as Timm correctly observed, “did more damage to the First Amendment as any other case in the 20th century.”
In the U.S. v Schenck decision, it was Justice Oliver Wendell Holmes who penned the “yelling fire in a crowded theater” sentiment in an obiter dictum (i.e., a judge’s incidental expression of opinion, not essential to the decision and not establishing precedent. See The Aristocracy of Monied Corporations in TSr Institute’s white papers on Google Drive for more insight on the judicial expansion of obiter dictums as if they establish precedence.):
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Justice Holmes may have realized the gravity of his opinions in Schneck and its companion cases. Holmes quickly backpedaled on the U.S. v Schenck , Debs v. U.S., and Frohwerk v. U.S. decisions. In the same year (again, 1919), while the Supreme Court’s majority opinion in Abrams vs. U.S. sent Russian immigrants to jail under the Espionage Act, Holmes – along with Justice Louis Brandeis – entered the first of a long series of dissents in defense of free speech that collectively laid the groundwork for Court decisions in the ’60s and ’70s, decisions that continue to shape First Amendment law today.
One of those SCOTUS decisions from the ’60s emanated from the Court’s 1969 case, Brandenburg v. Ohio, which effectively overturned Schenck and any authority the case still carried. The Justices held that inflammatory speech – even when advocating violence by the Ku Klux Klan – is protected under the First Amendment. But here, it is noteworthy to add that Brandenburg also included an exception: Free speech is protected unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Let’s look at how the exceptions are framed in (1) the Holmes obiter dictum, “to create a clear and present danger” and (2) in the Brandenburg decision, “to inciting or producing imminent lawless action.” Both exceptions to free speech seem to agree, at least implicitly, on the need for citizens “to first consider the consequences of public actions upon others, not just to one’s self. This, then becomes a form of self censorship rather that state-dictated censorship,” as I wrote at the outset of this footnote. Without this self censorship, without the exercise of public morals on the part of the individual citizen, the Supreme Court is clearly providing Congress the means to legislate these exceptions to free speech.
Thus, Timm’s argument seems to be much ado about nothing. While the phrase (and its variations) “yelling ‘fire’ in a crowded theater” holds little relevance for censoring political free speech, it has everything to do with individuals exercising public morals and consider the consequences of their actions so that the need for Congress to intervene in issues of free speech never has to arise.
In light of this, although the 1969 Brandenburg decision overturned the SCOTUS decisions of 50 years prior and protected free speech for political purposes, the exceptions both decisions considered a half century apart seem to remain in agreement and point towards this crucial understanding: All of the freedoms protected by the U.S. Bill of Rights implicitly require the individual to consider the consequences of public actions upon others.
There is no comprehensive, effective regulatory substitute for the individual citizen’s exercise of his or her public morals to maintain a free and open society when considering amendments under the U.S. Bill of Rights.
 In an earlier version, I paraphrased or used snippets of these considerations of Madison rather than publish this lengthy quotation, and was publicly accused of treason as a result. Thus, I felt compelled to quote Madison verbatim, so squeamish we 21st-century Americans have become of such discussions.