Purchase Online
View on Publisher’s Website

The Founders’ Second Amendment: Origins of the Right to Bear Arms

by Stephen P. Halbrook

Published by The Independent Institute (2008)

SUMMARY

Stephen Halbrook’s The Founders’ Second Amendment is the first book-length account of the origins of the Second Amendment, based on the Founders’ own statements as found in newspapers, correspondence, debates, and resolutions. Halbrook investigates the period from 1768 to 1826, from the last years of British rule and the American Revolution through to the adoption of the Constitution and the Bill of Rights, and the passing of the Founders’ generation. His book offers the most comprehensive analysis of the arguments behind the drafting and adoption of the Second Amendment, and the intentions of the men who created it.

CONTENTS

Introduction

Part I: Disarming the Colonists

1. “The Inhabitants to Be Disarmed”
2. From the Tea Party to the Powder Alarm
3. The Arms Embargo and Search and Seizure at the Neck
4. A Shot Heard ’Round the World and a “Cruel Act of Perfidy”

Part II: Of Revolution and Rights

5. “Times That Try Men’s Souls
6. “That the People Have a Right”
7. “A Musket to Defend These Rights”

Part III: The Constitution and Compromise

8. A Constitution With No Bill of Rights?
9. The “Dissent of the Minority”
10. Virginia Tips the Scales
11. “A Majority That Is Irresistible”

Part IV: “To Keep and Bear Their Private Arms”

12. Mr. Madison’s Amendments
13. The Bill of Rights in the States
14. The Great Militia Debate
15. Old Founders Never Die, They Just Fade Away

Conclusion: What Does the Second Amendment Say?

NOTEWORTHY REVIEWS

“Stephen Halbrook’s The Founders’ Second Amendment is first-rate work, utterly convincing. This is a solid and important work.”

— FORREST MCDONALD, Distinguished Research Professor Emeritus of History, University of Alabama

“I enthusiastically recommend Stephen Halbrook’s book, The Founder’s Second Amendment. This is an original and valuable approach, focusing on the place of individual ownership of firearms during the time of the American Revolution and the drafting and ratification of the Constitution and Bill of Rights. It will add appreciably to the scholarship on the origins and meaning of the Second Amendment.”

— JOYCE L. MALCOLM, Professor of Legal History, George Mason University School of Law

“Halbrook delves deeply into the importance of firearms during the Revolution, finding that attempts by search-and-seizure to control the flow of guns was regarded as the typical tyrannical behavior of a standing army. Liberty hinged on free ownership. . . . his book should be welcomed as a timely introduction to this most contentious of debates.”

— PUBLISHERS WEEKLY

“The subject of The Founders’ Second Amendment is currently ‘front-and-center’ as a ‘hot’ and major controversy. Well researched and well presented, Halbrook’s book has brought forward a substantial amount of new research, not redundant of what others have provided, and this book will find a solid place among leading works on the subject.”

— WILLIAM W. VAN ALSTYNE, Lee Professor of Law, College of William and Mary

The Founder’s Second Amendment is an impressive achievement. Halbrook shows conclusively to any honest mind, both in respect to historical evidence and analytical jurisprudence, that the Framers intended the Second Amendment not as the reserved right of a State government to organize a militia, but of the people as individuals to keep and to bear arms. In this meticulously researched and exhaustive study, Halbrook has produced what promises to be the standard work for years to come on the original intent of the Second Amendment. It will be an invaluable resource for scholars of the Constitution.”

— DONALD W. LIVINGSTON, Professor of Philosophy, Emory University

“Stephen Halbrook’s The Founders’ Second Amendment is crisply written, rich with history, and sure to be valuable to anyone interested in understanding the original meaning of the Second Amendment’s right to bear arms.”

— GLENN HARLAN REYNOLDS, Beauchamp Brogan Distinguished Professor of Law, University of Tennessee

“Like much of Halbrook’s other excellent work, The Founders’ Second Amendment is both well-written and full of fascinating details. It will serve as an important resource for professional scholars and interested laypersons. One especially useful aspect of Halbrook’s work is that the author so consistently lets a huge variety of original sources speak for themselves.”

— NELSON LUND, Patrick Henry Professor of Constitutional Law, George Mason University

The Founders’ Second Amendment: Origins of the Right to Bear Arms: Halbrook is a well-published scholar who has written a timely, well-informed, lucid book on the ‘origins of the right to bear arms.’ He covers the Second Amendment’s historical underpinnings from 1768-1826, and so offers readers a rich interpretive framework from which to grasp the U.S. Supreme Court’s (conservative) decision in June 2008, which was handed down after the book’s publication. The decision affirms the constitutional right of individuals to keep guns at home for self-defense, and prohibits government from violating said right. (That is, the Court struck down the District of Columbia’s ban on individual ownership of handguns.) In brief, Halbrook explores why he believes the ‘original intent’ of the framers was to underscore a personal, and not merely a militia-based, collective right to bear arms. Given his interpretation that only individual persons have substantial rights, whereas it is states that possess ‘powers’ in the requisite sense, it is not unexpected that the author’s argument supports the Supreme Court’s subsequent decision. Recommended. Suitable for educated readers, all levels.”

— CHOICE

“Historian and philosopher Stephen Halbrook is the single most prolific researcher on the Second Amendment, having contributed literally dozens of scholarly articles on various aspects of the subject. The Founders’ Second Amendment masterfully both extends and summarizes his (and others’) research. It is the last word—the single most comprehensive work on the thinking of the Founding Fathers’ era about the constitutional right of citizens to be armed.”

— DON B. KATES, JR., author, Armed: New Perspectives on Gun Control and The Great American Gun Debate (with Gary Kleck)

“Stephen P. Halbrook is a giant among Second Amendment scholars. As the Supreme Court’s recent decision in District of Columbia v. Heller vividly illustrates, the smug dismissal of the Second Amendment’s importance is no longer tenable. For the first time in our history, the Supreme Court has found that a gun-control statute violated the Second Amendment, and it did so largely on the basis of the kind of original-meaning historical analysis that Halbrook pioneered. Nobody has been more persistent or more prolific than Halbrook in the long intellectual campaign that made this victory possible. Whatever may happen in future litigation, Halbrook deserves the gratitude of everyone who thinks that the Constitution deserves to be taken seriously as law. . . . Halbrook has now produced a book that only he could have written. The Founders’ Second Amendment is a comprehensive study of the legislative history of this quintessentially American constitutional provision. Aimed at both a general and a professional audience, Halbrook’s work has several valuable qualities that are often absent from modern legal and historical scholarship. First, it is highly readable. Anyone who has been called on to explain the genesis of a law knows how difficult it can be to combine completeness with clarity. Halbrook has not only succeeded in this difficult task, he has made the story interesting as well. The volume doesn’t stop with the usual materials of a legislative history—i.e., general background, legislative debates, and public commentary by prominent participants in the process. Halbrook seems to have read everything ever written by or about the people who were involved in the story he tells, including obscure records and pamphlets as well as private letters and diaries. . . . Finally, Halbrook is not afraid to quote liberally from the documents on which he relies. . . . Halbrook lets the actors in his story speak for themselves, and the reader is free to conclude that his interpretation of what they said is questionable or even wrong. . . . Neither we nor our courts will find all the answers we need in the history that Halbrook presents so well. But this is the place to start looking, because some very important preliminary questions are indeed answered here. Every American who cares about this provision of the Constitution can now arm himself against the sophistries and oversimplifications that have permeated much of the popular and professional discourse about the origins of the Second Amendment. Doing so would be a fitting tribute to those who set us on a road to freedom at Lexington and Concord.”

— NATIONAL REVIEW

The Founders’ Second Amendment: Origins of the Right to Bear Arms considers the history of the constitutional rights of Americans to bear arms in early America from 1768 to 1826, offering up the first book-length account of these origins based on the Founders’ own statements from newspapers, debates, and legislative resolutions. The depth and detail added to source material quotes makes this a fine pick for both college and high school collections strong in American history and politics.”

— MIDWEST BOOK REVIEW

“Stephen P. Halbrook’s new book represents the most careful and well-thought-out study yet in support of the politically ascendant claim that the Second Amendment, as originally intended and understood, protects a right to own guns for purposes other than service in the lawful militia. It far surpasses Justice Antonin Scalia’s historically naıve analysis in District of Columbia v. Heller, the 2008 Supreme Court decision that first recognized a constitutional right to weapons possession for hunting and self-defense. Halbrook’s latest work is exhaustive in scope. He reviews dozens of documents (many of them previously ignored) that can quite plausibly be read to support an original understanding of a right that extends far beyond what was required to ensure the people’s capacity to serve in the militia. . . . Halbrook has clearly immersed himself deeply in the primary record of the constitution making process on the state and federal levels. His analysis of Justice James Wilson’s law lectures in Philadelphia, St. George Tucker’s Blackstone’s Commentaries, and post-ratification state constitutional reform in the early 1790s do support (but not irrefutably so) the claim that for some contemporary readers, more was at stake in the Second Amendment than preservation of the militia. . . . Halbrook concedes much more than other gun rights advocates respecting the meaning of the right to arms. He acknowledges that the principal evil that the framers of the Second Amendment aimed to prevent was the disarming of the militia that would invite creation of a standing army. He even allows that the militia of the framers has long since gone away. . . . As Halbrook concludes, “the experiences of the American Revolution proved the right to keep and bear arms serves as the ultimate check that the founders hoped would dissuade persons at the helm of state from seeking to establish tyranny. In hindsight, it would be difficult to quarrel with the success of the founders’ vision” (p. 338). It seems to me one could quarrel with the success of that vision on at least two levels. Realizing that the American War was fought as much over taxes as over guns, one might ask whether objections to readily affordable taxes on tea imposed by a government whose legitimacy nobody had questioned until a decade before justified a resort to arms, seven years of war, 40,000 dead, and 100,000 refugees. One could also argue that precisely those dangers which animated the framers of the Second Amendment have now been willingly embraced by the governmental agents of the American people, and that we confront the very ruin the framers prophesized. We have an enormous standing army we cannot afford, and with it foreign military adventures and two wars looking suspiciously like wars of imperialism. We have lost our virtue, and become slaves to deficit spending and heavy taxes, and a client dependent on foreign interests to finance our martial folly. To the framers of the Second Amendment, these would have been grounds for lamentation, not celebration.”

— AMERICAN HISTORICAL REVIEW

“Halbrook’s approach is to discover the answer to the question of what did the Amendment ‘mean to the Founders?’ . . . Halbrook’s book covers the relevant history from 1768 until the 1820’s. He presents much strong historical evidence that supports the individual rights approach. . . . Halbrook covers the fundamentals and this book remains as timely as ever. . . . this is an impressive and thoroughly researched and documented work. It is one the best scholarly books available on the topic. Of course, for many readers, this book is no longer the definitive exposition of originalism and the individual rights model. Justice Scalia’s majority opinion in Heller has succeeded it. On the other hand, this book is much more readable than a U.S. Supreme Court opinion.”

— LAW AND POLITICS BOOK REVIEW, American Political Science Association

Purchase Online
View on Publisher’s Website

The Founders’ Second Amendment: Origins of the Right to Bear Arms

by Stephen P. Halbrook

Published by The Independent Institute (2008)

SUMMARY

Do Americans have a constitutional right to bear arms? Or is this power vested solely in government? Recent years have seen a sea change in scholarship on the Second Amendment. Beginning in the 1960s, a view emerged that individuals had a “right” to bear arms only in militia service—a limited, “collective” right. But in the late 1980s Dr. Stephen Halbrook and a handful of other scholars began producing an altogether persuasive analysis that changed thinking on the matter, so that today, even in canonical textbooks, bearing arms is acknowledged as an individual right.

Stephen Halbrook’s The Founders’ Second Amendment is the first book-length account of the origins of the Second Amendment, based on the Founders’ own statements as found in newspapers, correspondence, debates, and resolutions. Dr. Halbrook investigates the period from 1768 to 1826, from the last years of British rule and the American Revolution through to the adoption of the Constitution and the Bill of Rights, and the passing of the Founders’ generation. His book offers the most comprehensive analysis of the arguments behind the drafting and adoption of the Second Amendment, and the intentions of the men who created it.

With the recent U.S. Supreme Court ruling in District of Columbia vs. Heller upholding the Second Amendment as protecting an individual right to bear arms, The Founders’ Second Amendment could scarcely be more timely as the authoritative book on the subject.

CONTENTS

Introduction

Part I: Disarming the Colonists

1. “The Inhabitants to Be Disarmed”
2. From the Tea Party to the Powder Alarm
3. The Arms Embargo and Search and Seizure at the Neck
4. A Shot Heard ’Round the World and a “Cruel Act of Perfidy”

Part II: Of Revolution and Rights

5. “Times That Try Men’s Souls
6. “That the People Have a Right”
7. “A Musket to Defend These Rights”

Part III: The Constitution and Compromise

8. A Constitution With No Bill of Rights?
9. The “Dissent of the Minority”
10. Virginia Tips the Scales
11. “A Majority That Is Irresistible”

Part IV: “To Keep and Bear Their Private Arms”

12. Mr. Madison’s Amendments
13. The Bill of Rights in the States
14. The Great Militia Debate
15. Old Founders Never Die, They Just Fade Away

Conclusion: What Does the Second Amendment Say?

NOTEWORTHY REVIEWS

“Stephen Halbrook’s The Founders’ Second Amendment is first-rate work, utterly convincing. This is a solid and important work.”

— FORREST MCDONALD, Distinguished Research Professor Emeritus of History, University of Alabama

“I enthusiastically recommend Stephen Halbrook’s book, The Founder’s Second Amendment. This is an original and valuable approach, focusing on the place of individual ownership of firearms during the time of the American Revolution and the drafting and ratification of the Constitution and Bill of Rights. It will add appreciably to the scholarship on the origins and meaning of the Second Amendment.”

— JOYCE L. MALCOLM, Professor of Legal History, George Mason University School of Law

“Halbrook delves deeply into the importance of firearms during the Revolution, finding that attempts by search-and-seizure to control the flow of guns was regarded as the typical tyrannical behavior of a standing army. Liberty hinged on free ownership. . . . his book should be welcomed as a timely introduction to this most contentious of debates.”

— PUBLISHERS WEEKLY

“The subject of The Founders’ Second Amendment is currently ‘front-and-center’ as a ‘hot’ and major controversy. Well researched and well presented, Halbrook’s book has brought forward a substantial amount of new research, not redundant of what others have provided, and this book will find a solid place among leading works on the subject.”

— WILLIAM W. VAN ALSTYNE, Lee Professor of Law, College of William and Mary

The Founder’s Second Amendment is an impressive achievement. Halbrook shows conclusively to any honest mind, both in respect to historical evidence and analytical jurisprudence, that the Framers intended the Second Amendment not as the reserved right of a State government to organize a militia, but of the people as individuals to keep and to bear arms. In this meticulously researched and exhaustive study, Halbrook has produced what promises to be the standard work for years to come on the original intent of the Second Amendment. It will be an invaluable resource for scholars of the Constitution.”

— DONALD W. LIVINGSTON, Professor of Philosophy, Emory University

“Stephen Halbrook’s The Founders’ Second Amendment is crisply written, rich with history, and sure to be valuable to anyone interested in understanding the original meaning of the Second Amendment’s right to bear arms.”

— GLENN HARLAN REYNOLDS, Beauchamp Brogan Distinguished Professor of Law, University of Tennessee

“Like much of Halbrook’s other excellent work, The Founders’ Second Amendment is both well-written and full of fascinating details. It will serve as an important resource for professional scholars and interested laypersons. One especially useful aspect of Halbrook’s work is that the author so consistently lets a huge variety of original sources speak for themselves.”

— NELSON LUND, Patrick Henry Professor of Constitutional Law, George Mason University

The Founders’ Second Amendment: Origins of the Right to Bear Arms: Halbrook is a well-published scholar who has written a timely, well-informed, lucid book on the ‘origins of the right to bear arms.’ He covers the Second Amendment’s historical underpinnings from 1768-1826, and so offers readers a rich interpretive framework from which to grasp the U.S. Supreme Court’s (conservative) decision in June 2008, which was handed down after the book’s publication. The decision affirms the constitutional right of individuals to keep guns at home for self-defense, and prohibits government from violating said right. (That is, the Court struck down the District of Columbia’s ban on individual ownership of handguns.) In brief, Halbrook explores why he believes the ‘original intent’ of the framers was to underscore a personal, and not merely a militia-based, collective right to bear arms. Given his interpretation that only individual persons have substantial rights, whereas it is states that possess ‘powers’ in the requisite sense, it is not unexpected that the author’s argument supports the Supreme Court’s subsequent decision. Recommended. Suitable for educated readers, all levels.”

— CHOICE

“Historian and philosopher Stephen Halbrook is the single most prolific researcher on the Second Amendment, having contributed literally dozens of scholarly articles on various aspects of the subject. The Founders’ Second Amendment masterfully both extends and summarizes his (and others’) research. It is the last word—the single most comprehensive work on the thinking of the Founding Fathers’ era about the constitutional right of citizens to be armed.”

— DON B. KATES, JR., author, Armed: New Perspectives on Gun Control and The Great American Gun Debate (with Gary Kleck)

“Stephen P. Halbrook is a giant among Second Amendment scholars. As the Supreme Court’s recent decision in District of Columbia v. Heller vividly illustrates, the smug dismissal of the Second Amendment’s importance is no longer tenable. For the first time in our history, the Supreme Court has found that a gun-control statute violated the Second Amendment, and it did so largely on the basis of the kind of original-meaning historical analysis that Halbrook pioneered. Nobody has been more persistent or more prolific than Halbrook in the long intellectual campaign that made this victory possible. Whatever may happen in future litigation, Halbrook deserves the gratitude of everyone who thinks that the Constitution deserves to be taken seriously as law. . . . Halbrook has now produced a book that only he could have written. The Founders’ Second Amendment is a comprehensive study of the legislative history of this quintessentially American constitutional provision. Aimed at both a general and a professional audience, Halbrook’s work has several valuable qualities that are often absent from modern legal and historical scholarship. First, it is highly readable. Anyone who has been called on to explain the genesis of a law knows how difficult it can be to combine completeness with clarity. Halbrook has not only succeeded in this difficult task, he has made the story interesting as well. The volume doesn’t stop with the usual materials of a legislative history—i.e., general background, legislative debates, and public commentary by prominent participants in the process. Halbrook seems to have read everything ever written by or about the people who were involved in the story he tells, including obscure records and pamphlets as well as private letters and diaries. . . . Finally, Halbrook is not afraid to quote liberally from the documents on which he relies. . . . Halbrook lets the actors in his story speak for themselves, and the reader is free to conclude that his interpretation of what they said is questionable or even wrong. . . . Neither we nor our courts will find all the answers we need in the history that Halbrook presents so well. But this is the place to start looking, because some very important preliminary questions are indeed answered here. Every American who cares about this provision of the Constitution can now arm himself against the sophistries and oversimplifications that have permeated much of the popular and professional discourse about the origins of the Second Amendment. Doing so would be a fitting tribute to those who set us on a road to freedom at Lexington and Concord.”

— NATIONAL REVIEW

The Founders’ Second Amendment: Origins of the Right to Bear Arms considers the history of the constitutional rights of Americans to bear arms in early America from 1768 to 1826, offering up the first book-length account of these origins based on the Founders’ own statements from newspapers, debates, and legislative resolutions. The depth and detail added to source material quotes makes this a fine pick for both college and high school collections strong in American history and politics.”

— MIDWEST BOOK REVIEW

“Stephen P. Halbrook’s new book represents the most careful and well-thought-out study yet in support of the politically ascendant claim that the Second Amendment, as originally intended and understood, protects a right to own guns for purposes other than service in the lawful militia. It far surpasses Justice Antonin Scalia’s historically naıve analysis in District of Columbia v. Heller, the 2008 Supreme Court decision that first recognized a constitutional right to weapons possession for hunting and self-defense. Halbrook’s latest work is exhaustive in scope. He reviews dozens of documents (many of them previously ignored) that can quite plausibly be read to support an original understanding of a right that extends far beyond what was required to ensure the people’s capacity to serve in the militia. . . . Halbrook has clearly immersed himself deeply in the primary record of the constitution making process on the state and federal levels. His analysis of Justice James Wilson’s law lectures in Philadelphia, St. George Tucker’s Blackstone’s Commentaries, and post-ratification state constitutional reform in the early 1790s do support (but not irrefutably so) the claim that for some contemporary readers, more was at stake in the Second Amendment than preservation of the militia. . . . Halbrook concedes much more than other gun rights advocates respecting the meaning of the right to arms. He acknowledges that the principal evil that the framers of the Second Amendment aimed to prevent was the disarming of the militia that would invite creation of a standing army. He even allows that the militia of the framers has long since gone away. . . . As Halbrook concludes, “the experiences of the American Revolution proved the right to keep and bear arms serves as the ultimate check that the founders hoped would dissuade persons at the helm of state from seeking to establish tyranny. In hindsight, it would be difficult to quarrel with the success of the founders’ vision” (p. 338). It seems to me one could quarrel with the success of that vision on at least two levels. Realizing that the American War was fought as much over taxes as over guns, one might ask whether objections to readily affordable taxes on tea imposed by a government whose legitimacy nobody had questioned until a decade before justified a resort to arms, seven years of war, 40,000 dead, and 100,000 refugees. One could also argue that precisely those dangers which animated the framers of the Second Amendment have now been willingly embraced by the governmental agents of the American people, and that we confront the very ruin the framers prophesized. We have an enormous standing army we cannot afford, and with it foreign military adventures and two wars looking suspiciously like wars of imperialism. We have lost our virtue, and become slaves to deficit spending and heavy taxes, and a client dependent on foreign interests to finance our martial folly. To the framers of the Second Amendment, these would have been grounds for lamentation, not celebration.”

— AMERICAN HISTORICAL REVIEW

“Halbrook’s approach is to discover the answer to the question of what did the Amendment ‘mean to the Founders?’ . . . Halbrook’s book covers the relevant history from 1768 until the 1820’s. He presents much strong historical evidence that supports the individual rights approach. . . . Halbrook covers the fundamentals and this book remains as timely as ever. . . . this is an impressive and thoroughly researched and documented work. It is one the best scholarly books available on the topic. Of course, for many readers, this book is no longer the definitive exposition of originalism and the individual rights model. Justice Scalia’s majority opinion in Heller has succeeded it. On the other hand, this book is much more readable than a U.S. Supreme Court opinion.”

— LAW AND POLITICS BOOK REVIEW, American Political Science Association