2nd Amendment: Right to Bear Arms

History of the 2nd Amendment


Founding Fathers – What were they thinking?


My research starts at the beginning.  Trying to figure out what the founding fathers meant when they inserted the Second Amendment into the fabric of our county.   It’s a task that no one has been able to interpret to everyone’s satisfaction. I am not going to give you any definitive answers either but I did come across some interesting tidbits and insights. You will have to be the one who decides what the founding fathers wanted to accomplish.


Birth of the American Dream


Our founding fathers were first generation Americans and immigrants.  They came for the promise of free land which was impossible to get in their home countries.   For some, by the 1700s life in the colonies was actually better and healthier than what it was in Britain. Family size was four children in Europe but it was eight children in the colonies. Colonial women were actually more likely to survive childbirth in the colonies than in Europe. There was more food and less disease. Most of the colonists were farmers and the population was spread out geographically as opposed to crowded cities like London where disease could spread like wildfire.  


Taxes were cheap.  Originally colonists were exempt from the oppressive taxes of Britain.  Local taxes were kept to a minimum (less than one half a percent!), most local government positions were staffed by volunteers and costs for roads were kept to a minimum.  It is too bad we couldn’t stick with volunteers in government.


Colonists and Their Guns


The amount of people owning guns depends on who you ask or what study you look at.  One study went through a sampling of wills counting how many guns were listed and came up with less than 10% of households owning guns.  Another study that also went through wills said the first study was slanted and that 45%-65% of households had guns. The first study also said the guns of the time were frequently listed as broken and rusted.  The second study said because guns were relatively expensive they were well taken care of and in good shape. Many colonial communities had established volunteer militias to fight the French and Indian wars. Those militias had small storehouses for guns,powder and ammunition.  Volunteers who owned guns were registered and the other arms were inventoried so the militia knew their total resources available.


There were few gunsmiths and almost no producers of gunpowder in the colonies.  Colonists were dependent on Britain for their supplies because Britain had control of all of the goods being shipped to the colonies..  


Today’s Headlines Started in 1776  – Taxes, Tariffs, and Protecting Monopolies


If you lived in the colonies vs. Britain you saved anywhere from 5% to 35% on your tax bill.  As the years went on the colonists started paying taxes to fund more road construction, constables and other public functions and those costs were kept to a minimum.   Britain began to assess taxes and tariffs to protect British monopolies, control trade and restricted the colonies to producing raw materials to protect manufacturing in the homelands. The level of Taxation went from being just enough to cover colonial expenses to being a source of revenue to pay down British debt. Colonists paid taxes and tariffs on pretty much everything.  Britain controlled what could be shipped in and out of the colonies, forbidding them from doing business with other countries. The opposite of free trade and a great example of what happens when you try to control trade.




The British East India Company was in trouble in financial trouble, to bail them out Britain gave them  exclusive delivery rights to the colonies for tea and tacked on additional tariffs. When the newly taxed shipments started arriving in American ports most were successfully turned back in protests by angry colonists without unloading. (They were probably extra crabby from missing their caffeine.)  Three ships in Boston refused to turn back and they became the unwitting hosts of the Boston Tea Party in 1773. Colonists dressed as Indians boarded the ships and dumped over a million dollars worth of tea into the Boston Harbor.


British Control

Britain’s response was swift and brutal. There were over 2 million people living in the colonies and Britain was frantic to control them. They  passed the coercive acts in 1774 closing the Boston Harbor to any trade, stripping Massachusetts Government of any local control, moved judicial trials to other colonies with the presumption of guilt and provided that the new British Army would be quartered in colonists homes. The Acts were so restrictive they even limited Town meetings to one per year. Letters from British officials calling for complete disarmament of the people and stopping the  import of firearms and gunpowder were leaked to the public. Printed in newspapers and read on courthouse steps, the colonists hearing the plans were outraged.


Colonial Resistance


They responded defiantly by holding Community meetings and getting organized. The Royal Governor sent British troops to break up one meeting in Salem but they were turned back when 3,000 armed colonists met them.  Enforcement of the new rules would be difficult when the 2,000 British troops stationed in Boston were supposed to be controlling 20,000 armed colonists in the area.


Gunpowder of the time was very unstable and generally placed in store houses for safety reasons. The British army was successful in confiscating hundreds of barrels of gunpowder from a storehouse in Charleston on September 1st of 1774. As news of the incident spread, calls went out to establish militias committed to defying the unjust laws and seizures of guns powder and ammunition. The gunpowder incident happened while the First Continental Congress meeting was taking place. The founding fathers recognize the importance of the crown confiscating the gunpowder and firearms of the people. They were facing unjust government rule by a standing British army and without representation in Parliament were denied any recourse..


Ben Franklin was quietly sent to the Netherlands France and Spain to open channels for them to supply guns and powder.. France stepped up and was able to smuggle arms and gunpowder to the colonies.


Armies vs  Militia


The only way Britain would be successful in controlling the colonists was to ensure they couldn’t fight back. The first battles of the Revolutionary War were fought over stores of guns and gunpowder. Paul Revere made his famous ride to tell the militia the British were coming – to take their guns and powder! The founding fathers looked to the militias to be their fighting force for the Revolutionary War. As they crafted the Constitution and the Bill of Rights they built safeguards in to prevent the new government to growing into a tyrannical beast taking taking advantage of its citizens.  


The founding fathers were against establishing a ‘standing army’.  They thought any law that needed an army to enforce it on the citizenry was automatically unjust.  Armies were meant to fight foreign threats and not their own people. That is why the 3rd Amendment forbids the forced billeting of soldiers in private homes.


Confiscating Loyalist Firearms


As the Revolutionary War progressed some colonial citizens remained loyal to Britain.  If they refused to change their allegiance to the new republic, their firearms were confiscated by the revolutionists.  If you wanted to keep your guns you had to pledge loyalty to the new republic! This makes it hard to understand how the right to bear arms was applied to the people they didn’t agree with.  Taking up arms against the republic was viewed as treason.


2nd Amendment and the Militia Act – Bring your own gun.


The bill of rights including the 2nd Amendment wasn’t ratified until 1791.  By that time the new country was struggling with the Northwest Indian War and the Whiskey Rebellion.  Congress passed the Militia Acts giving the President the right to call up the state militias to meet the challenges and provide for the conscription of free able-bodied white male citizens between the ages of 18 and 45 into a local militia company.  It required these  men to bring their own arms to the fight…..”shall within six months thereafter, provide himself…” with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack. Men owning rifles were required to provide a powder horn, ¼ pound of gunpowder, 20 rifle balls, a shooting pouch, and a knapsack.”


The law was changed in 1862 to allow African-Americans in the civil war.  The Militia act of 1903 over wrote these acts and set up the National Guard as we know it today.


Supreme Court Challenge


1875 US v  Cruikshank:  In 1873 an armed militia of white Democrats attacked black Republican freedmen who had gathered at a courthouse in Louisiana to stop an attempt of Democrat takeover of state offices in a disputed election.  Over 100 blacks and 3 white people were killed in the fight. The Democrats were charged with federal crimes including violating the 2nd Amendment Rights of Black Freedmen by taking their guns. The court overturned the conviction of the White Democrats saying it was faulty.  In practice whites were rarely held accountable for the killing of blacks. “The Justices held that the right of the people to keep and bear arms exists, and that it is a right that exists without the Constitution granting such a right, by stating “Neither is it [the right to keep and bear arms] in any manner dependent upon that instrument [the Constitution] for its existence.” Their ruling was that citizens must look to “municipal legislation” when other citizens deprive them of such rights rather than the Constitution.”  No one was convicted of a crime in the incident.


1939 US v Miller:  The court upheld the charges against two Arkansas men transporting sawed off shotguns across state lines.  These guys were the example gangsters of the day. Involved in everything from beating a gas station attendant, to robbing a bank of over $20,000, breaking out of jail, ratting out their partners, murders and drowning.  They had been stopped enroute to a small town, when the guns were found state police determined they were on their way to commit another robbery and had crossed state lines to get there. The case was set up as a 2nd Amendment challenge to the National Firearms Act by an Arkansas judge and the DA.  The supreme court said the 2nd Amendment protected firearms useful for a state militia and the sawed off shotguns did not have a reasonable relation to the preservation of a well regulated militia.


2008 District of Columbia v Heller:  The court ruled in favor of a police officer who was denied a license to keep a loaded pistol in his home in the District of Columbia.  In a 5 to 4 decision the court said ““The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”


Take Aways


The first shots of the Revolutionary War were fired to protect the colonists access to guns and powder.


Militias were established to protect the citizenry from both foreign and domestic threats.


Loyalists guns were confiscated.


The 2nd Amendment is a Federal issue but the States have the ability to be involved in regulation.


In a narrow 2008 decision the Supreme court ruled the statement of “a well regulated militia” does not limit gun ownership to militia purposes.