Preface

The misconception that the Second Amendment does not protect an individual right and that the right to keep and bear arms does not entail a right to rebel (against an usurpation of a constitutional government) is refuted.

It's the People, Stupid!

There are those who deny the Second Amendment protects an individual right, and insist it is a right of the people to posses arms only while they are associated with state militias or the National Guard, and only while on active duty.

As evidence the Founders intended to preserve an individual right to keep arms, the pro-individual rights camp typically quotes from James Madison's Federalist No. 46 as follows:

[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.

It is often asserted that this excerpt is quoted out of context.

The passage in question is presented again, with the words that are supposed to indicate a "collective" or state's right to keep arms, emphasized:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments,to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding 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.

How can anyone possibly construe the above passage to mean the people as individuals weren't allowed to keep their own arms? Of course the militia was subject to state and national control. An orderly militia could not function in any other way! To do so otherwise is a recipe for constant chaos and anarchy. The people as Madison states, not the government, were to be trusted with arms. Remember Madison writes, "...the governments [of Europe] are afraid to trust the people with arms". There is only one way to read that phrase; it is clearly the right of individuals to keep and bear arms. Madison also sanctions the right of the people to overthrow a tyrannical government with their own arms under the control of government "chosen by themselves". Alexander Hamilton discusses this right in more detail as we'll see later.

For those who haven't read the previous sections on this site and are thinking "Aha! What about the well-regulated militia part?": In Federalist No. 29, Alexander Hamilton clearly states membership in a well-regulated militia is not required for the right to keep arms.

What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen...The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution... Little more can reasonably be aimed at with the respect to the people at large than to have them properly armed and equipped ; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

"The Original Right of Self-Defense"

The "collective" rights fantasists argue further that since the people are attached to a state militia, which is attached to a local government (a state), the right to keep and bear arms does not include a right to defend against an usurpation of the government. Moreover, how could such a right exist when the Constitution delegates control of the militia to the federal government, and one of the purposes of the militia is to suppress insurrections?

The "collective" rights theory fails to take into account the full system of checks and balances intended and inherent in our system. The Founders realized that insurrections may occur from time to time and it is the militia's duty to suppress them. They also realized that however remote the possibility of usurpation was, the people with their arms, had the right to restore their republican form of government by force, if necessary, as an extreme last resort.

This claim is not made out of thin air. We will now examine Hamilton's Federalist No. 28. Hamilton begins:

That there may happen cases in which the national government may be necessitated to resort to force cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes exist in all societies, however constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government) has no place but in the reveries of these political doctors whose sagacity disdains the admonitions of experimental instruction.

Here Hamilton simply states the national government may occasionally have to quell insurrections and it is certainly justified in doing so.

Hamilton then goes on to say:

If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

Hamilton clearly states there exists a right of self-defense against a tyrannical government, and it includes the people with their own arms. However, Hamilton argues that under a national government the above situation should be rendered extremely unlikely to occur:

[T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!

There is nothing left of the state rights fantasy after reading the above paragraph. In the unlikely event that a state or the national government is overcome by tyrannical forces, it is the people who are free to choose their "instrument of redress". It is the people that are in possession of all forms of power, whether through the franchise or through arms. In other words the people, yes as individuals, are the ultimate check in a system of checks and balances.

Though the Federalist Papers were written prior to the drafting of the Bill of Rights (but after the Constitution had been sent to the states for ratification), Hamilton's comments clearly state the relationships that were understood between a well regulated militia, the people, and their governments. The idea that the Second Amendment was meant to protect a state's organized militia and nothing else is refuted.