Motley 1
Daniel Motley
HIS-337–01
10–21-2015
The Second Amendment: The Enigmatic Dilemma
“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.”
1
The founders of the early American republic sought after guaranteeing the
rights of the people once they won their independence, and securing a document
that consolidated federal power. The failure of the Articles of Confederation
necessitated the creation of the Constitution of the United States of America and the
Bill of Rights. Discord amongst the federalists and the antifederalists warranted the
need for a document to ensure the rights of the people, since the “proposed
Constitution would operate on individuals.”
2
While the Bill of Rights guarantees the
liberties of the individual, they are not definitive in how they are to be interpreted.
Current historical and legal interpretations of the Second Amendment “do not
support an individual’s right to own a gun” and favors the “collective rights view of
the Second Amendment.”
3
The citizens of the United States are experiencing the
ramifications of this climacteric blunder, with mass shootings, gun-related
homicides and accidents occurring more than any other first world country.
4
1
U.S. Constitution Amendment II.
2
Halbrook, Stephen P. The Founders’ Second Amendment: Origins of the Right to Bear
Arms. Chicago: Ivan R. Dee ;, 2008. 171
3
Cornell, Saul. “It is Unproven That the Founding Fathers Intended to Protect the
Individual’s Right to Bear Arms.” Opposing Viewpoints in Context. 2005. Accessed
October 8th, 2015.
4
GBD Compare.” GBD Compare. 2015. Accessed October 23, 2015.
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American citizens must come to the realization that the Second Amendment has
been abused for over three centuries and no longer serves the intended purpose in
regulating the safety of the people.
I. The Original Intention of the Second Amendment
The ambiguous nature the language of the Second Amendment has is
culpable for the discrepancy amongst legal scholars and the general public. The
Second Amendment states,
“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.”
Supreme Court Chief Justice Warren Burger wrote that the second amendment
“must be read as though the word ‘because’ was the opening word, as in ‘[Because] a
well regulated Militia [is] necessary to the security of a free State…”
5
If this was the
original understanding of the Second Amendment when it was ratified, then its
modern-day interpretation would be incorrect. The interpretation, as given by
Warren Burger, is implying the necessity of having a militia in order to have a free
state; the people right to own arms shall not be infringed upon. Only when the
people serve a state-governed militia can they own a firearm.
The purpose of a state-governed militia is to ensure protection to the states
inhabitants outside of the federal government, whether it is a threat by a foreign
power or domestic. In other words, the “inclusion of the Second Amendment
embodied the Federalist assurance that the state militias would be allowed to
continue as a viable military and political supplement to the national army at a time
5
Bogus, Carl T. The Second Amendment in Law and History: Historians and
Constitutional Scholars on the Right to Bear Arms. New York: New Press, 2000. 16.
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when military tensions within and between the states ran high, suspicions of a
national standing army ran even higher, and military takeovers were the norm in
world affairs.”
6
While the states are guaranteed this freedom, the unreliability of
state-governed militias grew exponentially over the following century. The
government’s use of civilian militias reduced drastically shortly after the abysmal
failures of the War of 1812. As Keith Erhman and Dennis Henigan discerned, the
“history of the state militias between 1800’s and 1870’s is one of total
abandonment, disorganization, and degeneration.”
7
The inefficiency of civilian
militias lead to increased federal military forces and the installation of the draft
during times of emergency.
Any matter that pertains to the Second Amendment that is outside of a
civilian militia is not protected. Recreational activities for personal use such as
hunting, collecting, sporting, and even self-protection are not guaranteed by the
Second Amendment.
II. John Locke’s Natural Rights Theory
The United States Constitution, and most of the Western political systems
today, are based on the liberal political philosophy of John Locke, which can be
found in his second book Second Treatise of Government. His doctrine states that the
individual inherently has two natural powers. The first power is “to do whatsoever
he thinks fit for the preservation of himself and others within the permission of the
6
Bogus, Carl T. The Second Amendment in Law and History: Historians and
Constitutional Scholars on the Right to Bear Arms. New York: New Press, 2000. 16.
7
Erhman, Keith, and Dennis Henigan. “The Second Amendment in the Twentieth
Century: Have You Seen Your Militia Lately?” University of Dayton Law Review.
1989. Accessed October 22, 2015.
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law of nature: by which law, common to them all, he and all the rest of mankind are
one community, make up one society, distinct from all other creatures.” Locke’s
second power states that the “power a man has in the state of nature, is the power to
punish the crimes committed against that law. Both these he gives up, when he
joins in a private, if I may so call it, or particular politic society, and incorporates
into many commonwealth, separate from the rest of mankind.”
8
The purposes of these powers are not to support a private use of force, as
they are to show why they must be restricted. When an individual is his judge in his
own case, his decisions are likely to be influenced by passion and self-interest that
infringe the rights of others. The absence of an established law that controls and
regulates interactions between individuals perpetuates these actions. Indeed, when
an individual is in the right, he may lack the necessary power to enforce and protect
