The Janus-faced Second Amendment: Looking Backward to the Renaissance, Forward to the Enlightenment

ARTICLES

The Janus-Faced Second Amendment:

Looking Backward to the Renaissance,

Forward to the Enlightenment

DAVID T. HARDY*

ABSTRACT

The present debate over interpretation of the Second Amendment focuses on

whether it was intended to guarantee the existence of the militia as a system or

to guarantee an individual right to arms. The purpose of this Article is to dem-

onstrate this is a false dichotomy: the Second Amendment was meant to guaran-

tee both. There were those of the Framing generation who feared a standing

army and valued the militia as an institution, and those who feared that the new

government would disarm the people and valued an individual right to arms.

The Second Amendment has two clauses because it was meant to assure both

groups. This understanding meets a standard test of science: it explains all

observed data, and is inconsistent with none.

The practical signif‌icance of this is that we cannot interpret the right to arms

as limited to the militia, or as an exclusively militia-centric right.

Further, this Article will suggest that the modern National Guard is not, and

was not intended to be, the militia referenced in the Constitution. The militia of

the Constitution were intended as a state-off‌icered and controlled force, subject

to certain protections (chief‌ly that they could not be deployed outside the

United States). The modern National Guard was created under the Army, not

the Militia, Clause of the Constitution, as a reserve component of the Army, fed-

erally off‌icered and controlled, and subject to service overseas.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422

I. DID THE SECOND AMENDMENT HAVE ONE PURPOSE, OR TWO? . . . . 424

* David T. Hardy, PC, Tucson, Arizona. Mr. Hardy’s articles on f‌irearms laws and the right to arms

have been cited by the United States Supreme Court in McDonald v. City of Chicago, 561 U.S. 742, 762

n.10 (2010) (plurality opinion), id. at 841 (Thomas, J., concurring) and in Staples v. United States, 511

U.S. 610, 626 n.4 (1974) (Stevens, J., dissenting), and by eleven U.S. Circuit Courts of Appeals. He has

testif‌ied on the same subjects before the Senate Judiciary Committee and its then-Subcommittee on the

Constitution. © 2020, David T. Hardy.

421

A. Historical Background: Classical Republicanism vs.

Jeffersonianism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425

B. The Right to Arms vs. the Militia in Early American Statecraft. . 427

1. The Initial Contrast: Thomas Jefferson vs. George Mason 428

2. The Sequel: Virginia vs. Pennsylvania . . . . . . . . . . . . . . . 429

3. Proposals for a Federal Bill of Rights in the State

Ratifying Conventions, 1787–88 . . . . . . . . . . . . . . . . . . . 431

4. Virginia Proposes Supplementing the Right to Arms

Clause with a Militia Clause. . . . . . . . . . . . . . . . . . . . . . . 432

C. Treatment of the Second Amendment’s Two Clauses by Early

Constitutional Commentators . . . . . . . . . . . . . . . . . . . . . . . . . 434

D. The Right to Arms Clause vs. the Militia Clause in the Framing

of the 14th Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436

II. IS THE MODERN NATIONAL GUARD THE “WELL REGULATED

MILITIA” OF THE SECOND AMENDMENT? . . . . . . . . . . . . . . . . . . . . . 438

A. The Constitutional Context . . . . . . . . . . . . . . . . . . . . . . . . . . . 438

B. The Antebellum Militia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440

C. The Militia and the National Guard, 1865–1933 . . . . . . . . . . . 442

D. Is the Post-1933 National Guard the “Militia” of the Second

Amendment?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448

INTRODUCTION

“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 core interpretational debate over the Second Amendment is whether its

second clause—protecting the right to keep and bear arms—should or should not

be qualif‌ied by its f‌irst clause, which proclaims the importance of a well-regulated

1. There is no authoritative count of the number of commas in the Second Amendment: surviving

State ratif‌ication notices use zero, one, two, and three commas. Ross E. Davies, Which is the

Constitution?, 11 GREEN BAG 2D 209 (2008). In an era before photocopies and pdf f‌iles, copyists

punctuated as they thought best.

422 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 18:421