The similarities between the right to bear arms under the United States Second Amendment and Article XVII of the Massachusetts Constitution of 1780 are nearly identical. Both speak of a right of the people “to keep and bear arms” for purpose of providing security through common defense. It certainly would not be unheard of to find provisions of the Massachusetts Constitution found incorporated into the United States Constitution because we know that is where “advice and consent” comes from.
Text Comparisons:
Initial Proposed Second Amendment: The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country.
Massachusetts Constitution Art. XVII: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.
U.S. Senate Second Amendment Proposal: A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms for the common defense, shall not be infringed.
Final Second Amendment Edit: 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.
The principal variation between the Second Amendment and the Massachusetts provision is the Federal Constitution speaks of a well-regulated militia as a “security of a Free State” while the Massachusetts provision refers to a “common defense” through an armed populace. It would not be a stretch to say “common defense” and “security of a free State” structurally speak of the same thing. James Madison in 1813 spoke of well-armed militias in terms of both security and defense as “the great bulwark of defense and security for free states.” Hamilton had said the militia was “the most natural defense of a free country,” and “the guardian of the national security.”
Thomas Jefferson remarked in his 1808 message, “For a people who are free, and mean to remain so, a well-organized and armed militia is their best security.”
On December 13, 1859, the governor of Massachusetts requested the opinion of the State Supreme Court on questions relating to the militia, and in response to the governor, the justices said the United States Second Amendment and Article XVII of the Massachusetts Constitution were both “similar provisions.” Would had been difficult to refer to these two constitutional provisions as similar if the Second Amendment was viewed as an individual right to privately own and use weapons for personal defense while the State Constitution was viewed strictly as a right of the people to maintain armed militias for their common defense in contrast to entrusting their security to a standing army in times of peace.
Prominent Massachusetts politican, Francis Bird, said of the Massachusetts “right to bear arms for the common defence” on October 29, 1853:
Not for self-defence, Mr. Attorney-General and Messrs. Justices, for that is a natural right, and needs no constitutional guarantee; but for the “common defence.” The Attorney-General graciously admits “the right of individuals peaceably to organize themselves into armed bodies, at their own expense, for military instruction or defence against lawless violence.”
Speaking of the Federal Second Amendment, he says:
“To keep and bear arms,” not for self-defence, not for “military instruction,” not for “special service in keeping guard;” but as members of a “well regulated ” [State] militia. This was the very purpose of adopting this second amendment to the federal constitution—to put this matter of the independence of the State militia beyond the domain of controversy; and this is the right guaranteed by this amendment, the right of the people to bear arms, not for “making defence under special exigencies,” which could in no possible manner come under the control of Congress, and needed no guarantee, but to bear them as a part of the military power of the State.
As I have said here, the Massachusetts provision to keep and bear arms can only be understood through events of the revolutionary war. Massachusetts Governor Gage was ordered by the King to confiscate public arms from the Charlestown arsenal, invoking public outrage, and the King made sure no arms shipments could be delivered to the colonies. This forced the Massachusetts Committee of Safety to secretly collect muskets and gunpowder and keep at a secret location where they could later be used to arm local militia members.
Elbridge Gerry of Massachusetts confirmed this during his remarks on the Second Amendment on August 17, 1789:
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late Revolution. They used every means in their power to prevent the establishment of an effective militia to the Eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia; but they were always defeated by the influence of the Crown.
Both National and Massachusetts constitutions recognize this plight of the people of the colonies during the war in arming themselves to combat British forces by forbidding government to do what the King had done in disarming their ability to organize and bear arms against a common enemy. Otherwise, a national standing army would exist locally to replace local militia forces under the pretense of providing for security and defense of the State. As Pomeroy explained, the object of the Second Amendment is “to secure a well-armed militia” so that no national standing army would be required during time of peace.
The reason the Second Amendment or Article XVII of the Massachusetts Constitution does not imply an individual right to possess arms is because armed individuals acting under their own right would be useless in providing security or any kind of meaningful defense without proper organization and training. Judge Story drove this point home in his commentaries when he remarked, “[h]ow it is practicable to keep the people duly armed without some organization it is difficult to see.”
C.J. Marshal said, “In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments.”
The Second Amendment neither is a right nor does it recognize a right, but merely puts Congress on notice that no power exists that allows them to encroach and disarm the State militias or replace them with a standing army. There never was any need for a constitutional amendment for personal self-defense using a gun no more than there was ever a need for a constitutional amendment to eat food, or seek warmth.
In Reply to hansberrym:
Whether the scrupples objection remained or was removed is unimportant, the important point is is why the language was included with these similar armsbearing clauses. You don’t set out to say individuals have a right to bear arms for their own personal defense and if they happen to be conscientiously scruple, may “pay an equivalent for personal service.” (laughing)
Also, why do you keep harping on what Wilson said since his comments defeats the very premise you advocate? A renewal of the Assize of Arms in no shape or fashion can be argued to imply a individual right to own and use guns for personal purposes.
And, you are not getting any mileage out of Bliss for the simple fact all the courts who had cited it disagreed with it.
That said, it is pretty apparent it is you who is employing a false dichotomy.
In Reply to JimAZtec:
The CO provision was removed in committe during the drafting of the revised PA const. of 1790. As ratified the right to arms provision reads “The right of the citizens to bear arms in defence of themselves and the state shall not be questioned.”
The KY court in Bliss read the right in one important respect as James Wilson had some 30 years prior -as protecting a right to self defense. However the court in Bliss went further and struck down anti-concealed carry laws. But when the KY const.was revised in 1850 to add a clause to allow restrictions of concealed carry, it retained the original language which protected having arms for self defense.
This 1850 change to the KY const. put KY in line with how most states (then and now) saw the right to bear arms -as protecting self defense as well as defense of state, but allowing laws to restrict concealed carry.
Jim Said: “How strange it would be to grant some right to own a gun for home defense and have the persons pay an equivalent if they happened to have scruples with bearing arms to defend themselves singly. Why did Madison include a scruples objection with his original 2A proposal if the right is for individuals to keep guns for their own personal self-defense?”
But again you are employing a false dichotomy.
It is not necessarily an either/or choice, The inclusion of the CO provision makes good sense if one considers that the RKBA includes self defense AND in defense of the state.
Quakers would not bear arms to protect themselves and they would not bear arms to defend the state. Indeed it would be strange if Quakers would bear arms in defense of themselves but claim CO status when called to defend the state. It would be extremely strange if that sort of CO were given any credence whatever.
In Reply to hansberrym:
The KY right to bear arms was borrowed from the Penn Constitution. The original right was this: “That the right of the citizens to bear arms in defence of themselves and the state shall not be questioned. But those who conscientiously scruple to bear arms shall not be compellable to do so, but shall pay an equivalent for personal service.”
The scruple’s objection was dropped only because it was already found under Section 2 of the same constitution. Only reason it became tainted in KY was because of the Bliss ruling which other state courts thought was bizarre.
How strange it would be to grant some right to own a gun for home defense and have the persons pay an equivalent if they happened to have scruples with bearing arms to defend themselves singly. Why did Madison include a scruples objection with his original 2A proposal if the right is for individuals to keep guns for their own personal self-defense?
In Reply to JimAZtec:
You are employing a false dichotomy -that the right to bear arms is a right to self defense OR it is a right to defend the state.
The Kentucky const was revised to allow banning of concealed carry, but it remained an individual right to self defense as well as defense of the state.
The logical conclusion when taking into account the various statments during the founding era , as well as the state court decisions, is that the rkba was understood as including self defense AND the defense of the state.
hansberrym wrote: “The right to bear arms was understood to include both self defense and defense of state.”
No. It was understood to mean an organized peoples militia so no standing army would ever be necessary. That is why Jefferson, Mason and others insisted on an amendment to guard against “standing armies.”
What Gov Shulze is talking about when he said “in defense of themselves and the States,” is citizens defending themselves as an organized and trained militia vs. a standing army, and when called into service by the United States, as a defense of other States.
Bliss was overturned by later court rulings under the same language and also overturned by KY statute.
In Reply to JimAZtec:
Is one’s house community property?
Is one’s person community property?
The answer is plainly no. The right to bear arms was understood to include both self defense and defense of state.
Gov Shulze knew the right to bear arms was an individual right (“every citizen” as opposed to the collective). He also understood “bear arms” as meaning to carry arms rather than an idomatic expression such as “wage war” or “serve as a soldier”. Note that Shulze’s use of “them” refers back to “arms”, so he is talking about actual weapons, he is not using figurative expression.
Note that the court in Bliss interpreted the Kentucky right to bear arms (which was nearly identical to the text fo the PA provision) as a broad individual right.
In Reply to hansberrym:
You forgot to fully quote Wilson after he wrote, “This is one of our many renewals of the Saxon regulations,” and then says “one may assemble people together in order to protect and defend his house.” Wilson is obviously referring to the Assize of Arms, where the duty was imposed upon every freeman to bear arms for the defense of the state and community property from armed aggression.
This is why Penn. Governor John Shulze said of the same provision Wilson spoke of: “The right to bear arms is another important right guaranteed to all our citizens by the [Pennsylvania] constitution,” and imposes on the “legislature the duty of so organizing and disciplining the whole body of the citizens, that they shall be able, not only to bear arms, but to use them with confidence and skill, ‘in defense of themselves and the States, ’ if such a necessity shall arise.”
Definitions of “Bear Arms” leading up to the 2A:
1665: “to bear Armes or wage war by sea or Land.”
1669: “to bear arms, and serve as soldiers.”
1676: “to beare armes in martiall or millitary manner.”
1730: “to bear Arms, or learn or exercise himself in the Art of War.”
1731: “bearing arms or attending musters and training.”
1755: “the bearing of arms or Military Service.”
1775: “bear Arms, nor be concerned in warlike Preparations.”
1775: “bearing arms in the militia.”
1780: “Bairing Arms or Doing Duty” in the militia.
1787: “principled against fighting or bearing arms.”
Heller majority clearly got it wrong.
In Reply to JimAZtec:
But why do you say “or” ? Certainly people such as James Wilson and Roger Sherman can be relied on, and they saw it as “and”. The right to bear arms included self defense AND defense of the state.
James Wilson discussing the PA Const. right to bear arms provision: “With regard to the first, it is the great natural law of self preservation, which, as we have seen, cannot be repealed, or superseded, or suspended by any human institution. This law, however, is expressly recognized in the constitution of Pennsylvania. “The right of the citizens to bear arms in the defence of themselves shall not be questioned.” This is one of our many renewals of the Saxon regulations. “They were bound,” says Mr. Selden, “to keep arms for the preservation of the kingdom, and of their own persons.”
Roger Sherman as quoted during debates on the Federal militia act, describing the right to bear arms as an essential right of every citizen: “Representative Sherman questioned if Congress could give an exemption to pacifists since “the state governments had (not) given out of their hands the command of the militia, or the right of declaring who should bear arms?”91 He went on to argue that it was the privilege of every citizen, and one of his most essential rights, to bear arms, and to resist every attack made upon his liberty or property, by whomsoever made. The particular states, like private citizens, have a right to be armed, and to defend, by force of arms, their rights, when invaded. A militia existed in the United States, before the formation of the present constitution: and all that the people have granted to the general government, is the power of organizing such militia. The reason of this grant was evident; it was in order to collect the whole force of the union to a point, the better to repel foreign invasion, and the more successfully to defend themselves “
The majority in Heller got it right. The argument that the rkba was understood as exclusively related to service in a state organized militia is not tenable in the face of clear evidence of a broader understanding of the rkba.
In Reply to hansberrym:
OK, an individual right to what? Bear arms against burglars or as a duty like suffrage to protect liberty, life and property through a well regulated militia? You could be fined for not voting just as you could for not maintaining a musket and showing up for drills.
“How it is practicable to keep the people duly armed without some organization it is difficult to see.” J. Story
In Reply to JimAZtec:
Good luck with that “yup!” argument. That is even more lame that Stevens’ mumbling “embedded” and waving his magic wand over those texts.
Happily, the dissenters’ position makes it very difficult for any backtracking in the future.
From Stevens’ dissent: The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
From Breyer’s dissent: (1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting).
In the past, when the deniers found themselves out of ammo for a particular argument against a broad individual RKBA, they would simply move on to a different interpretaion. But in the wake of the Heller decision they can’t simply jump back to the States’ Rights(as in Hickman), and they can’t jump back to the purely Collective Rights interpretation(as in Silveira). They are now stuck with the 9-0 Supreme Court holding on the question on whether the RKBA is an individual right(as defined above by the dissent), and are only left to argue that the SCOPE of the individual RKBA is limited to service in a state militia. Note that this very limited individual rights reading was flatly rejected in Silveira and so the dissent in Heller can not even claim fidelity to lower circuit precedent.
hansberrym wrote: “Are you saying that the text you cite (“that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.”) acts as a qualifier on the RKBA of the preceding clause of those texts?”
YUP!
hansberrym wrote: “Are you back to saying that the RKBA is only a collective right of the people? That position lost 9-0 in Heller, even the dissenters accepted that 2A protects and indiividual right -the disagreement in Heller is in the scope of the individual right.”
I think you or your handlers misunderstood the dissenters position. Stevens said, “Surely it protects a right that can be enforced by individuals,” but it’s scope wasn’t for an individual right to “nonmilitary purposes.”
And further: “Similarly, the words ‘the people’ in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.”
So, the dissenters are arguing an individual right to serve and bear arms in a state militia which is all the amendment speaks of vs. goons arguing it really means keeping private guns for defense at home.
You’d be better off arguing as Madison suggests, that you have a 10th (and 9th) amendment right to keep guns at home.
In Reply to JimAZtec:
Are you saying that the text you cite (“that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.”) acts as a qualifier on the RKBA of the preceding clause of those texts?
Are you claiming that the opening phrase of the Second Amendment acts as a qualifier on the RKBA of the main clause of 2A ?
Are you back to saying that the RKBA is only a collective right of the people? That position lost 9-0 in Heller, even the dissenters accepted that 2A protects and indiividual right -the disagreement in Heller is in the scope of the individual right.
hansberrym said: “Note that VA, NC, and NY all supplied provisions similar to the 1780 MA const. but each lacked the qualifier “for the common defense”.”
Here we go again! Can’t you comprehend your own post? Re: “that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.”
Same substance as “for the common defense.” Madison is right to argue the second amendment does not protect an individual right to possess arms but only protects “the people” in organizing themselves into well armed militias as their means of defense.
There are also clear similarities (and one glaring distinction) between the MA 1780 const. provision and the provisions submitted to Congress by the VA, NC, and NY ratifying conventions as suggestions for the federal bill of rights.
VA proposal: 17th, “That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and be governed by the civil power.”
Note that VA, NC, and NY all supplied provisions similar to the 1780 MA const. but each lacked the qualifier “for the common defense” . As there had been debates in MA concerning the inclusion of that qualifier in the MA 1780 const. and the limits it placed upon the RKBA, it follows that VA, NC, and NY intended a broader protection of the right than the MA const.
The idea that qualifiers expand meaning, rather than restrict, is absurd on its face. But the idea that “the right to keep and bear arms” is most narrow when presented without qualifiers, as Stevens argues in Heller, defies not only common sense and ordinary grammar, but simply fails to take into account that the phrase “for the common defense” was read as a limitation on the RKBA in the years just prior to the second amendment’s drafting (though that phrase did not limit the right only to service in the organized state militia which is how Stevens interprets the RKBA).
PA Madison‘s claim that the second amendment does not protect an individual right to possess arms was rejected by all nine justices. The Collective Rights argument lost badly at the Supreme Court with the help of Saul Cornell, Nathan Kozuskanich, and others. While it certainly was not Cornell’s intention to aid the majority in Heller, his thorough debunking of the Collective Rights and States Rights theories painted the deniers into a corner, Having agreed that the RKBA is an individual right, the dissenters were unable to demonstrate that the right was exclusively tied to service in a state organized militia
It wasn’t until the NRA began its extensive 2nd amendment lobbying campaign that “to keep and bear arms” took on a whole new meaning from its original meaning … and this explains why court rulings on the subject are riddled with inconsistencies.
I agree with your conclusion, as stated in your final paragraph, Madison. The Second Amendment is about the right of the people to have a well regulated militia drawn from themselves.
In early America, a person who was qualified physically and by age for militia service in his state was said to be able to bear arms or to be capable of bearing arms. To serve in the military was to “bear arms.” Except for the person who considered it a “right” to serve in the militia, citizens would not have said they had an individual right to bear arms. That right was a right of the people as a political community in each state, to be protected from abuse at the hands of the new federal government and a federal army.
When early Americans wanted to apply the phrase “bear arms” to purposes other than, or in addition to, the military, they included words to identify those purposes, as in “bear arms for defense of self, home, and state.” Since no such added words were included in the Second Amendment, the meaning is military.
Some will agree that the preservation of the militia system was a purpose of the Second Amendment but will assert that it was only one of the amendment’s purposes. They don’t explain why the Framers didn’t mention any other claimed purpose, such as personal self-defense, hunting, or linsurrection.
I like your emphasis on the revolutionary war in explaining the motivation behind both armsbearing provisions. You also make an awfully strong argument against the individual interpretation when you wrote: “Armed individuals acting under their own right would be useless for providing security or any kind of meaningful defense without organization or regulation.”