What the ratifying conventions demanded before Madison drafted an arms right

James Madison did not sit alone in a candlelit study and dream up the Second Amendment. He was closer to a court reporter taking dictation from the country. The states had told him, in writing and at length, what they wanted, and his job in the spring of 1789 was to boil down a stack of demands into something a Congress could pass.

That fact is the most useful thing in the whole debate, and it is oddly neglected. If you want to know what the Second Amendment was meant to do, do not begin with the lawyers who argue over it now. Begin with the people who asked for it.

Why the conventions wanted a bill of rights

The Constitution drafted in Philadelphia in the summer of 1787 had no bill of rights. The framers had a reason: the new government had only enumerated powers, so there was no authority to infringe the rights of speech, press or arms. Hamilton made that argument in Federalist No. 84. But the argument did not reassure many people. A government given the power to raise armies, tax and regulate the militia was a government that might use those powers in ways nobody intended.

Each state held a convention to decide whether to ratify. Delaware went first, in December 1787, Pennsylvania a few days later, and New Hampshire's vote in June 1788 was the ninth, enough to put the Constitution into effect. Virginia and New York followed. Along the way, several conventions proposed amendments. A number of states ratified on the understanding that a bill of rights would be added, and that promise was a large part of why the Constitution passed.

Four of those proposals matter most for the right to arms, and they are the subject of this post. I will take them in order, quote the language exactly, and then show what Madison did with them.

The Pennsylvania minority, December 1787

Pennsylvania was the second state to ratify, on December 12, 1787, by a vote of 46 to 23. The losing delegates did not go quietly. Twenty-one of the twenty-three published an address, "The Dissent of the Minority of the Convention," on December 18, 1787, giving their objections and a list of proposed amendments.

Among them was this, which I quote because it is the earliest detailed arms proposal tied to the federal Constitution:

That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.

Look at the three components.

Three purposes. Defence of "themselves and their own state, or the United States," and "killing game." The proposal states that arms serve personal protection, public defence and hunting. A militia-only reading has nothing to do with the last, and little to do with the first.

A ban on disarming "the people or any of them." The words "or any of them" matter. They protect the individual, not just the collective. A law that disarms one citizen disarms "any of them."

An exception for crimes and real danger. The proposal itself contains the limit: disarmament is acceptable "for crimes committed, or real danger of public injury from individuals." It is not an absolute right. The same clause that protects arms recognizes that a person who has committed crimes, or who is a real and specific danger, may be disarmed. We will return to this limit in the discussion of United States v. Rahimi in Justice Thomas stood alone in Rahimi, and his dissent deserves a careful reading.

Massachusetts, February 1788: Samuel Adams's proposal

Massachusetts ratified on February 6, 1788, by a close vote of 187 to 168, and recommended a list of amendments. A proposal on the arms question was made in the convention, and it is commonly credited to Samuel Adams, the Boston patriot; the Heller opinion calls it "Samuel Adams' proposal in Massachusetts." The wording usually cited is that the Constitution should never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. The record of who made the motion is thinner than the credit suggests, so treat the attribution with care.

Two comments. First, the proposal speaks of "peaceable citizens," which is a built-in limit: the protection runs to the law-abiding. Second, I should be accurate about its fate. The proposal was not adopted by the convention; the notes of the proceedings say it was voted down, and the convention's recommended amendments did not include it. It is best read as evidence of what some delegates thought should be said, not as an official demand of the state. That is how I will use it. The weight of the argument rests elsewhere.

New Hampshire, June 1788: Congress shall never disarm any citizen

New Hampshire's convention ratified on June 21, 1788, the ninth state to do so. Among the amendments it recommended was this:

Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

This is the sharpest of the four. "Any Citizen." Not any militia, not any state, not the people as a mass. The word is citizen, and the exception, "such as are or have been in Actual Rebellion," is narrow. It limits Congress, which is the body the convention feared, and it protects the individual against a federal disarmament statute.

Note what the clause does not say. It does not say what an individual may keep or why. It says only what Congress may not do. This is the grammar the Second Amendment would later use: not a grant, but a limit on the legislature.

Virginia, June 1788: the recommended amendments

Virginia ratified on June 25, 1788, after a long debate in which Patrick Henry and George Mason opposed the Constitution and Madison defended it. The convention adopted a list of recommended amendments, including a declaration of rights modeled on Mason's 1776 text. The arms provision reads:

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 defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

This is the template for the federal amendment. Here we find, in order, a right of "the people" to "keep and bear arms" (not "bear arms" alone, as in Pennsylvania's 1776 text), the militia clause with its famous phrase "well regulated militia composed of the body of the people," and the standing-army clause. Madison's language in 1789 would follow this order: right, militia, a limit on military service for conscientious objectors. The idea that a militia is "composed of the body of the people" appears in the text itself, which answers the argument that the militia was a select corps. The Virginia convention equated the militia with the body of the people, and then declared the right of the people to keep and bear arms.

I leave to George Mason and the well regulated militia composed of the body of the people the story of Mason's own role. For present purposes the point is that Virginia's proposal tied the individual right and the militia purpose in one sentence, without any suggestion that one cancels the other.

Other states recommended amendments too, but these give the clearest evidence on arms.

Madison condenses the demands, June 1789

Now to the drafter. The first Congress under the Constitution met in the spring of 1789. On June 8, 1789, Madison rose in the House of Representatives and introduced a set of amendments, drawing on the state proposals. His arms provision read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Compare it with what had come before.

Madison combined the elements in a compact form. He chose the right of "the people," not any other holder. He chose the prohibitory verb, "shall not be infringed," in place of the permissive English "may have." He put the militia purpose as a justification for the right, and attached a religious-conscience exemption. He left out the phrase "or any of them," and the specific exception for crimes or rebellion, which he presumably thought were understood.

The House and Senate revised the text over the summer. The conscientious-objector clause did not survive, the words "well armed" fell away, and the arrangement of the clauses changed. Congress sent twelve proposed amendments to the states on September 25, 1789. Ten were ratified, and they became the Bill of Rights when Virginia ratified on December 15, 1791. The text that survived is the one we know:

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.

What the conventions' demands prove

Let me set out what the record establishes, in five points.

1. The demands used the language of individuals. "Any citizen," "any of them," "peaceable citizens," "the people." The state conventions did not ask for a protection for the state militia as an institution. Where the states' own military power was concerned, the Constitution already preserved it.

1. The demands aimed at the federal government. Pennsylvania's "no law shall be passed," New Hampshire's "Congress shall never disarm." The fear was that Congress, armed with its power over the militia, would disarm the people and then rule the unarmed. That fear makes sense only if the target is private arms.

1. The demands included personal and public purposes. Defence of oneself, of the state, of the nation, and hunting.

1. The demands included limits. Crimes, real danger from individuals, actual rebellion, "peaceable" citizens. The founders did not imagine that the right was a license for criminals or insurrectionists, and the exceptions they wrote tell us the limits they expected.

1. Madison condensed rather than invented. The structure of the Second Amendment is the structure of Virginia's proposal. The verb is borrowed from New Hampshire and Pennsylvania. The idea of the militia as the body of the people is Virginia's.

The strongest objection, stated fairly

The best answer from the other side holds that the conventions were concerned with the militia and the standing army, not with private ownership. The fear that provoked the demands, the argument goes, was that Congress would use its power over the militia, which was a state institution, to destroy it, for example by neglecting to arm it or by disarming it. The proposals protected the states' ability to maintain a militia against federal interference. The Second Amendment, on this view, was a federalism provision, and phrases like "any citizen" mean a citizen as militiaman.

It is a respectable view, and the Heller dissent leaned on it. I have four answers.

One, the text of the proposals. Pennsylvania's minority included hunting. New Hampshire said "any Citizen." A federalism clause for the benefit of state militias does not need to mention game or individuals.

Two, the "or any of them." It cannot be read as a protection of a state institution, since it protects any individual from being singled out for disarmament.

Three, the premise that the militia was the people. Virginia's proposal says so in terms. If the militia is "composed of the body of the people," then a federal law disarming the people disarms the militia, and the two protections coincide. This is the point developed in Every able-bodied man must own a musket, the Militia Act of 1792 and its heirs, where the militia act of 1792 is read as an act requiring private ownership.

Four, the Court's reading. In District of Columbia v. Heller (2008), the majority read the proposals of the ratifying conventions as evidence that the right was understood to belong to individuals, and Justice Scalia pointed to New Hampshire's proposal, the Pennsylvania minority's proposal and the Massachusetts proposal as referring to individual rights. The dissent read the same record differently. That difference should be stated. But on the words themselves, "any citizen" does not read like a federalism clause.

A concession is in order. Reasonable people can say the evidence is mixed, since the state proposals were written by different hands, with different emphases, and several states said nothing at all about arms. I do not claim the record is unanimous. I claim that where the founding generation spoke about arms in terms of who held the right, they said "the people" and "any citizen."

A moment of conservative irony

There is a fine joke hiding in all this, and it is on the people who say the Second Amendment was an afterthought. It was not an afterthought. It was a demand. Several states made their ratification smoother by promising to add a bill of rights, and arms were on the list. The Federalists, who thought a bill of rights unnecessary, wrote one in order to win the votes, and spent the rest of their careers defending what they had put in. Madison, who had privately called bills of rights "parchment barriers," ended as the author of the first ten. It is not often that the men who said the lock was unneeded are the ones who cut the key.

For related reading, The right of the people means the same thing in the First, Second and Fourth shows how the amendment's holder, "the people," works across the Bill of Rights, and the site's Constitution page has the text of the amendments.

The case in brief

1. The Second Amendment answered demands from the state ratifying conventions of 1787 and 1788, not an idea invented in the House.
2. Pennsylvania's minority, New Hampshire and Virginia asked for a guarantee in words about "the people," "any of them" and "any citizen," not about state institutions.
3. Those same proposals included limits for crimes, real danger and actual rebellion, so the right was understood to have edges.
4. Madison condensed the proposals on June 8, 1789, and Congress sent the text to the states in September, with ratification on December 15, 1791.
5. The objection that the demands were only about state militias must explain the words "any citizen," "or any of them" and "killing game."

What you can do: read the Pennsylvania minority's dissent and New Hampshire's recommended amendment in the founding-era record and see which words your own legislators use when they talk about "the people."