The Right to Bear Which Arms? – 2A Interpretation and the Federalist Papers

By Mark Houser

The 2020 presidential campaigns have just begun, but on the issue of gun control, we’re already hearing a common refrain from numerous candidates: The Second Amendment does not protect anyone’s right to own, as they put it, “weapons of war” (a term the candidates use to refer to such things as semi-automatic rifles and standard-capacity magazines).

That’s wrong. The Second Amendment unambiguously protects our right to own “weapons of war.” That is, weapons suitable not just for sport, but for combat.

Many people find this obvious. It’s hard to imagine what else the Second Amendment could possibly be intended to do. James Madison wrote the Second Amendment in the aftermath of a bloody war for independence from a tyrannical empire. The first shots of that war were fired to resist disarmament. Can anyone truly believe that Madison wrote the Second Amendment with, say, hunting or target shooting in mind? It’s a preposterous notion.

But, let’s suppose that we’re not sure what “arms” the Second Amendment refers to. How might we figure out what the authors of our Constitution and Bill of Rights were thinking when they used the term “arms?” Were they thinking about “weapons of war,” or something else?

The Federalist Papers offer a window into the minds of the founders of our country and the architects of our Constitution specifically during the time between its writing and subsequent ratification (and the addition of the Bill of Rights).

In the papers, the term “arms” appears 27 times. “Arms” unambiguously refers to weapons (rather than something like “appendages”) 25 times. In every instance that the term “arms” refers to “weapons,” “arms” is used in the context of combat and warfare, not recreation.* Here are just a few examples:

“(W)ho, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.” –Federalist 2 (John Jay)

“(T)hat combination and union of wills of arms and of resources, which would be necessary to put and keep them in a formidable state of defense against foreign enemies.” –Federalist 5 (John Jay)

“To these would be opposed a militia amounting to near half a million of citizens with arms in their hands…fighting for their common liberties…It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.” –Federalist No. 46 (James Madison)

Moreover, in the papers’ extensive discussions of the civilian militia, there is never any suggestion that the arms of the militia ought to be different from or inferior to those of the state military. If anything, the papers call for parity in arms between the militia and the state military.

In Federalist 29, Hamilton wrote:

“If circumstances should at any time oblige the government to form an army of any magnitude that army 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 and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

This statement simply wouldn’t make sense if Hamilton envisioned the militia being armed with categorically inferior weapons compared to those carried by the state military. What good is a militia that’s well-trained, but poorly armed?

And note that the terms “sport,” “game,” and “hunt” do not appear anywhere in the Federalist Papers. That the Second Amendment protects the right to own weapons suitable for fighting is clear not only from what the papers say, but also from what they don’t say.

Gun control proponents are quick to point out that Madison and his contemporaries didn’t imagine the sort of weapons that exist today. That’s probably true, but it’s irrelevant to the question at hand.

We don’t say that the First Amendment doesn’t apply to typed or online publications simply because the Framers did not imagine typewriters or the internet. We don’t say that the Fourth Amendment does not apply to search and surveillance capabilities that the Framers did not imagine, such as GPS tracking. Technological development doesn’t change the fundamental nature of the rights that the Bill of Rights seeks to secure.

The Second Amendment clearly and unambiguously protects the right to own weapons suitable for combat. The Bill of Rights concerns itself with defense against tyrants–foreign and domestic–not with clay pigeons or whitetail deer.

The only way to escape this conclusion is to adopt a method of constitutional interpretation that willfully ignores the clear language and plain meaning of the Constitution and thus imperils every right that it seeks to secure.

Note, I have not argued here that it’s a good thing that the Second Amendment secures the right to own “weapons of war.” I have merely shown that the Second Amendment obviously does secure that right. Intellectually honest opponents and proponents of gun control alike must recognize that reality.

Yes, this is an inconvenient truth for gun control proponents, because it means that measures they think are “common sense” (like an “assault weapons ban”) are blatantly unconstitutional, and, if the courts are faithful to the document, would require a constitutional amendment in order to be legal.

However, gun-rights supporters can’t complacently retreat to the apparent safety of the Second Amendment, no matter how plain and obvious its meaning. On the contrary, they would do well to remember that the Constitution has been amended 17 times since the adoption of the Bill of Rights.

Our rights may be innate and eternal, but the document that protects them from violation is certainly not. And even if the document remains unchanged, we have ample evidence that, without our tireless vigilance, it will often be ignored.

So it’s not enough to merely have the Constitution and to know what it means. We must also do the continual work of holding our politicians accountable to it.

 

* The Anti-Federalist papers use “arms” in the same way.