Justice  /  Origin Story

What the Supreme Court Gets Wrong About the Second Amendment

Government, wrote Alexander Hamilton, should substitute “the mild influence” of the law for “the violent and sanguinary agency of the sword.”

The impetus for the Second Amendment was the fear that state militias would drift into redundancy under a powerful national government—a government authorized both to raise professional armies and to arm the state militias. Under this arrangement, it was feared, the militias could either be absorbed into one, European-style “standing army,” or left to crumble while professional soldiers were recruited to do the work of national security.

That’s precisely what the Founders dreaded—the emergence of a permanent or “standing” army — and they saw surrendering control of the local militias as a fatal step in that direction. Nobody could be certain how these powers would play out, but the Second Amendment was James Madison’s promise that Congress could never disarm the state militias. The wording was prosaic and unhurried, as if everybody knew what was at stake: “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.” This was military language marshaled to a military cause.

It was not just that the Founders said nothing about arming the individual: they couldn’t have done so without betraying their political creed. They feared the tyranny of the individual as profoundly as the tyranny of kings, and their faith in a well-regulated militia was their answer to both dangers. It was no good having the power to raise armies and navies, warned several writers, if you fell into chaos and anarchy at home. 

Keeping the peace was the first duty of government, and a well-regulated militia was the appointed means—no small matter, in an age before professional police forces. It was the work of the militias, wrote one of the most eloquent advocates of the Second Amendment, “to provide for the protection and defense of the citizen against the hand of private violence, and the wrongs done or attempted by individuals to each other.” To compromise the militias was to threaten liberty at its most basic level: it was to leave the weak at the mercy of the strong.

When the Founders spoke of the right of “the people” to keep and bear arms, in other words, they were not trying to arm individuals. They were trying to secure the community against the armed individual: the hand of private violence. This idea was, in fact, the founding principle of the liberal state. The very “idea of government,” wrote Alexander Hamilton, was to substitute “the mild influence” of the law for “the violent and sanguinary agency of the sword.” Its original purpose, wrote the philosopher John Locke, was “to restrain the partiality and violence of men.” This was a government designed for “men,” not “angels,” in Madison’s classic formulation.