Notes on the Bill of Rights and the First Amendment Concepts

he founding fathers vigorously debated the necessity of a nation being able

to defend itself from invading forces or from threats within. Today, a growing

number of voices is calling for changes to local and national gun laws as gun

violence increases. The debate about the meaning of the Second Amendment

and the degree to which government may limit guns has become especially

heated in the last few decades. Should an amendment created in 1791 still

guide an industrialized and modernized nation’s gun policy in the 21st century?

Founding Principles and Bearing Arms

At the 1787 Philadelphia Convention, the debate about weapons was generally

related to a standing army. In light of the recent Shays’ Rebellion, several

attendees were inclined to enable Congress to maintain a regular armed force, a

paid, professionally trained military. Others clung to the idea of states keeping

regular militias that the federal government could call into service. The latter

would require an extra step in times of need but would provide an additional

check on a potential runaway central government if the army was going to be

used for heinous purposes.

Constitutional Convention

The debates show us how far the Revolution and its aftermath had reversed

traditional thinking. Previously, most statesmen of the day assumed that

militias, locally controlled, would be less prone to corruption and abuse. By

1787, though, the men of the convention insisted an effective government

required a national army, but, as historian Michael Waldman explains in The

Second Amendment: A Biography, “there is no evidence—from James Madison’s

notes or those of any other participant—that the delegates in the Constitutional

296 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Convention had the slightest inkling that private gun ownership was viewed at

risk and required inclusion in a bill of rights. It simply did not come up.”

In the States

Several state constitutions had a bill of rights. Four of the thirteen states

protected the right to bear arms as part of a militia force. Only one, Pennsylvania,

protected the right to bear arms as individual self-defense.

Gun regulations were common. As historian Saul Cornell has described,

various states and localities maintained laws that, among other things,

designated the official location for gun and powder storage, barred firing

guns within city limits, and prevented people deemed dangerous from gun

ownership. In Maryland, Catholics were barred from having guns. Most states

banned African Americans, free or slave, from joining militias or owning

weapons. And Rhode Island created a gun registry in supporting the militia.

Much gun law came via common law court rulings. Gun ownership was

common and protected. The legal argument for using a gun in self-defense

was well established, but courts would eventually weigh the right to own a gun

against actions and regulations meant to protect others.

A National Standard

As the ratification debate moved toward adding a bill of rights, George Mason

and Virginia’s other critics of the proposed Constitution drafted suggested

amendments to send to the Congress. Their seventeenth suggestion read in

part, “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 defense of a free state.” This, along with suggestions from multiple

states, grew into the