1789 Senate action on right to arms
"On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'
It passed in the negative.
On motion to strike out of this article, line the second, these words, 'the best,' and insert in lieu thereof 'necessary to the:'
It passed in the affirmative.
On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'
It passed in the affirmative."
At this point in the drafting, the Second Amendment was in fifth position. Since "passed in the negative" was then parlance for "was voted down," the first passage documents that the Senate rejected a proposal to word the amendment as "right of the people to keep and bear arms for the common defense."
I was the discoverer of this passage, back in the mid-1980s, when I found a copy of the Journal of the First Senate sitting in Interior Department's library. If I were to guess -- the movant or at least proponent was John Adams, sitting as president of the Senate. Adams had drafted the Massachusetts Declaration of Rights, which had the "for the common defense" proviso. As Steve Halbrook has documented, that provision created a bit of a stir in the state, with several communities protesting that it might allow the state government to confine all arms to its armories -- they would still be available for the common defense. The critical point here is that the Senate, which was otherwise rather liberal in amending the House's proposals, rejected this language.
In debates a few years ago, at the American Enterprise Institute, the proponent of "collective rights" claimed that there was no record at all of the Senate deliberations. He was wrong. There are no verbatim transcripts, but there is the Journal which lists motions and votes. (Interestingly, the compilation of the House debates is actually fragmentary and noncontemporaneous. While it looks like a running log of debates, it was really compiled fifty years later by editing contemporary newspaper articles that described what went on.
BTW, the secretary of the Senate was a notorious lush, which may account for the typo in the last paragraph (he left "necessary to" out: "A well regulated militia being the security of a free state...")
Good article, Mr. Hardy. I would like to expound upon a point I made earlier regarding City of Salina v. Blaksley. To wit: militia service was considered a right as well as a duty. We have this comment from Elbridge Gerry regarding a proposed modification to the 2nd Amendment adding "but no person, religiously scrupulous, shall be compelled to bear arms":
"Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. THEY CAN DECLARE WHO ARE THOSE RELIGIOUSLY SCRUPULOUS, AND PREVENT THEM FROM BEARING ARMS. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now it must be evident, that under this provision, together with their other powers, congress could take such measures ith respect to a militia, as make a standing army necessary. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late revolution. They used every means in their power to prevent the establishement of an effective militia to the eastward. The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown." The Congressional Register, 17 August 1789. (Emphasis supplied).
It seems clear to me that Elbridge Gerry (a Jeffersonian, to use your categories, and the origin to the terminology "gerrymandering" when he was Governor of New York) was concerned that the federal government would, or could, try to prevent certain people from serving in the militia by some ruse associated with declaring that those of certain faiths are pacifists and thus ineligible to serve. Therefore, it seems clear to me that the "right-duty" aspect of militia service during the time our constitution and bill of rights is established...
Posted by: Legal at April 5, 2005 02:27 PM