‘Armed in America’ historian defends collective rights interpretation of Second Amendment

Gun Laws, Politics & 2nd Amendment, Second Amendment

Patrick J. Charles knows more about the Second Amendment than most. After spending a decade pouring over microreels filled with evidence of the founders’ contentious drafting of the Constitution, the U.S. Air Force senior historian and legal scholar penned three books parsing out the context behind the nation’s conception of gun ownership.

In his latest effort, Armed in America: A History of Gun Rights from Colonial Militias to Concealed Carry, Charles asserts historical record does not support the individual right to bear arms as we know it today. Rather, the founders believed in arming the populace for the sole purpose of a well-trained militia — a fact the courts and others seemingly ignore.

His opinion doesn’t sit well with the gun rights community. This, despite his belief the Supreme Court got it right with the landmark Heller v District of Columbia in 2008. He also says partisan reimagining of Second Amendment history isn’t limited to conservatives, either.

“Whether you’re talking about the collective rights argument or whether you’re talking about the individual rights arguments, there’s been people on both sides who’ve misappropriated historical evidence over time or failed to fully contextualize it,” he said. “So that’s what really kept driving me forward (in my research).”

His work has garnered the attention of federal judges in the Second, Fourth, Seventh, Ninth and D.C. District Courts of Appeals. Even Supreme Court Justice Stephen Breyer used a passage from the historian’s previous book in the landmark McDonald v. City of Chicago — the 5-4 decision that affirmed the Second Amendment applies to state and local governments — saying the flawed historical record of Heller meant the constitutional right of gun ownership for private self-defense was muddy, at best.

“People often get confused when they see terms like self defense or self preservation and they automatically think, oh that’s my right to self defense,” Charles said. “But that’s not what the framers are referring too. It’s broader, legal language and a philosophical debate about communal liberty that they were concerned about preserving.”

Charles sparred onstage with fellow legal scholar Brannon Denning at the National Constitution Center in Philadelphia last month over his painstaking interpretations. Both men agree the historical narrative used in legal opinions doesn’t reflect reality, but Denning — as a lawyer — says he’s less concerned.

“History is obviously relevant,” he said. “I think what has happened is, courts and others have sort of created what might be termed as a ‘usable past’ … I think as a matter of constitutional law we feel like we need to build a bridge to the past and sometimes … that’s not necessarily done according to Hoyle, history as practiced by historians. But I think for lawyers, it works.”

Charles said evidence found in congressional debate transcripts during the ratification of the Constitution and public responses to the Bill of Rights never referenced individual self-defense, not even once. He argues, instead, the framers were mostly concerned with protecting citizens from a tyrannical federal army. Militia, being comprised of the local population, would be less inclined to mistreat or abuse their authority as a protective force, according to Charles, but would be rendered useless without firearms.

“That’s more or less why I come to the conclusion it had nothing per se to do with our individual conception of the right today,” he said. “That’s not to say the right doesn’t exist today. It is, it’s in Heller. Or that the right has never existed in our history. It did. It grew in the 19th century. But based upon that conception alone, the central idea of how important a militia was to the founding era’s view of republican liberty cannot be overstated.”

Denning disagrees, saying the intertwined nature of the role of a militia member enables both views of the right.

“Because the militia was the people … to me, it speaks to both,” he said. “It speaks to trying to ensure that the militia would remain a force in being and protecting the ability of the constituent parts of the militia to be armed.”

It’s a viewpoint the Supreme Court affirmed in Heller a decade ago, holding the Second Amendment guarantees an individual’s right to arm themselves for self-defense in the home. Charles agrees with this ruling, but says the historical narrative used to support it is inherently flawed.

“I think you could say with the Castle Doctrine in the 14th century in Germanic law … the castle doctrine basically says I have the right to defend my home if it becomes assailed and I do not have to retreat in my home if my home is under attack,” he said. “If you think and you apply common sense logic that a handgun is one of the most common weapons owned in the United States, the court holding in Heller is legitimate on its face. The court holding, but not everything else around it. Everybody on all sides just wanted to throw away and write a new narrative.”

Charles’s biggest gripe? The fallacy that one general understanding of civilian gun ownership existed from 1689 until the ratification of the 14th Amendment in 1868. The Second Amendment’s interpretation as an individual right wasn’t born until the 19th century, he argues, and didn’t take on its modern day relevance until the rise of the National Rifle Association’s political prominence beginning in the 1930s.

But for the nation’s founders, he says, “a well-regulated militia” meant more than just being “well-trained.”

“It was about being well disciplined, adhering to the rule of law about standing up and fighting, about being loyal to the government,” he said. “There were all these larger tenants to being a quote unquote well-regulated militia from the late 17th century to the late 18th century that go well beyond just having a gun. Many commentators at the time talked about how without that, you had an armed mob. And that that armed mob was more dangerous to liberty than for you just to have a gun. They forsaw that.”

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  1. Someone that takes the Second Amendment and twists it around to fit their own preconceived idea. Totally wrong to my way of interpretation of the amendment and reading it with the appropriate commas setting apart the different meaning entirely from this guy.

  2. Did these two “experts” not discuss the idea that individuals have a GOD given right to protect themselves and family? Government, government and more government results in very little help (if any) when one’s life is threatened. Did they not also discuss the purpose of the amendments was to protect individual GOD given rights. I’m getting a tired of having to defend, in some abstract legal manner, rights that each of receive from GOD when we are conceived and born.

  3. I don’t understand his thinking. In one sense he says 2A applies to a local population because they would be less inclined to abuse their authority then goes on to say “It was about being well disciplined,——– about being loyal to the government. If you are loyal to the central, federal government, what is the of the local non-abusive populace being armed?

  4. So the founders intended for every able adult (Men at the time, but I think today we could include Women too) to be armed and well trained in the use of those arms.


    If you want to add some requirements like being well disciplined, adhering to the rule of law about standing up and fighting, about being loyal to the government concepts that the founders laid out… good luck with that. All the conservative gun owners that I know fit into that category now and would love to see those be requirements for gun ownership.

  5. First and foremost, there is little or nothing said of two things: 1) the Constitution does not grant us rights, and 2) the Constitution is a document of the People to create a limited and enumerated power government. All rights are reserved to the People and nothing in the Constitution grants the government the power to limit the rights of the People, even and especially outside of the 2nd Amendment. In other words, the 2nd is not to be looked at only and specifically and in it’s limited wording – it is a clarification but not the single last word.

    1. Just as importantly, the second amendment’s prominence didn’t disappear just because we have a large standing military. Though it might seem improbable to many, we are in great need of the second amendment due to foreign enemies in our midst. So in the sense that Patrick Charles emphasizes, we remain militia. The FBI tells us that there are jihadists now situated in every state. We can’t simply call in the marines or national guard when they choose to strike, as they will plan for that and they will continue to create mayhem and slaughter as long as they can. Only armed Americans will be able to resist them, hopefully with semi-automatic rifles with sufficient loaded, detachable magazines.

      All loyal Americans are militia.

      1. All loyal Americans are the militia – loyal to the Constitution and what it means. We need not be loyal to the Government when it tries to take our rights away that were given to us under the Constitution. Nor are we required to be loyal to Congress critters that break their oath of office when they attack the Constitution that they swore to “protect and defend” AS IT WAS WRITTEN.
        Our Government fears all gun owners because when you consider numbers, the “standing militia” is the largest military force on the planet. Even when you take the conservative count of 80 million gun owners, we compromise the largest force even if you count all the standing armies of the world. The Second Amendment of our Constitution was enacted to protect us from a tyrannical Government gone wild, and from the inability of our own warfighters to protect us even if they did their very best, and died heroically in the process. The standing militia is meant to protect the innocent against terrorism, and random acts of violence until proper law enforcement arrives and ACTS (not hides until “backup” arrives in sufficient numbers to overwhelm the shooters). I may have missed some points here, but I think I hit the main reasons why we have the Second Amendment in our Bill of Rights – and the Constitution as a whole.

  6. Regardless of the interpretations, the Second Amendment reads, “, the right of the PEOPLE to keep and bare arms shall not be infringed.” It does not read, “, the right of the MILITIA to keep and bare arms shall not be infringed.”
    Since the PEOPLE comprise the MILITIA, they are, therefore, one in the same. Arguing that the Second Amendment only applies to a “well regulated militia” is idiotic in its entirety.

  7. I served my country 9 years. I have earned the right to protect my family and yours. Taking guns away from the good will only leave those whom are bad with guns. Dial 911 fools, see how fast someone is there to protect you. 9 times out of ten you will be dead before help arrives. If you front like guns and are afraid to protect yourself and others move to some other country, but do not infringe upon my rights as a human being . Also I want to see alcohol manufactures being arrested for murder, manslaughter, car manufactures, knife, baseball bat and so on until we are left with only our bare fists. You need to live in reality. There is know one better to protect your children, family, and self but you.

    God bless

  8. Ridiculous! Charles implies that the militia was mean to support (being loyal to) the government, when there is a mountain of written evidence to prove that the government is that which the people had a right to defend themselves from.

    Alexander Hamilton, in his 9th Essay of The Federalist, described the “idea” behind the 2nd
    Amendment as shown below, and it’s the only way to think of it. The Bill of Rights didn’t exist at that time, yet, but this was a very specific topic of discussion then and it’s precisely why the right to bear arms is the 2nd Amendment.

    “If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.”

    If the government had an Army, any part of that body (such as militia, National Guard, etc…) would be a part of that Army. Mentioning a “large body of citizens” is clearly a reference to the population at large. And also noteworthy is that he says that those citizens should be little, IF AT ALL, inferior to the standing army in terms of discipline and use of arms.

    Samuel Adams said: “Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”

    James Monroe, in preparing for inclusions to the Bill of Rights, had written a list titled “Basic Human Rights”. In it he listed the right of the people to keep and bear Arms, not the right of the State (or colony) to keep a militia, or the right of the people to keep a hunting rifle. It is a BASIC HUMAN RIGHT, the right to self defense.

    So yea, it wasn’t about having a musket to hunt deer, it was about the right of the people to be equally armed as their federal government’s military to ENSURE that no tyrant would ever have the possibility of enslaving them. And progressives are so happy to throw away such a vital right, even when the world saw in excess of 100,000,000 million people murdered by brutal dictators and tyrants, in just the 20th century alone!

    Just wow on disarming the populace.

  9. “It depends on what the meaning of the word ‘is’ is. The 2nd Amendment doesn’t need to be explained to men and I mean men. Free men and women know how to remain free.

  10. The United States was about one thing Freedom. Individual Freedom was dominant in the Declaration of Independence. Jefferson thought States Rights with no strong central ruler was right.
    He lost that argument to Hamilton, Clay and Madison who individual States would war with each other over taxes, boundary disputes and needed to be together as allies against foreign powers etc.

    Madison clearly became the dominant arranger of the states. Jefferson suggested that if there was to be a rule book of the states and individuals in those states then each individual needed a bill or guarantee of 10 generally agreed upon protections to forever be granted to all individual citizens. Those became The Bill of Individual Rights. Stupid people who cannot learn from history seem to somehow think they are smarter than the dead people of yesteryear. The slippery slope of trying to single out the individual right to have arms, as being a collective right, rather than an individual right, endanger the First Amendment right, as a collective right. Meaning that you cannot say, print or even believe what you want as an individual. Obviously those things are what representation by elected politicians are for. That is the collective right not the individual right. All those in favor of silence forever hold your tongue and let the king speak for all of us.

  11. One factor I think Charles overlooks is that the States did not provide arms for their militias in the 18th Century, but instead required each adult male within the age range established by statute to provide himself with a musket and a quantity of powder and ball; without an individual right to keep and bear arms, the militia would have been unarmed. Moreover, the private ownership of arms, including mortars and cannon, was taken for granted throughout the 19th Century. “Privateers” (like the famous Jean Lafitte) were pirates employed by the government to raid an opposing county’s shipping. These privateers provided their own ships, cannon, muskets, sabers, powder, ball, provisions and crew. This they could not possibly do without a private right of arms. Other than laws concerning the concealed carry of firearms, there were few if any laws restricting rights to possess weapons until Jim Crow.

    1. Correct. There can be no “collective” right when the rights of the individuals making up that collective are not also guaranteed. However, as stated elsewhere here, because the Second Amendment is not the source of the individual’s right to arms (whether it actually refers to an individual or collective right), the right still exists independently, and is guaranteed by the Ninth Amendment. And it is inviolate because of the “due process” clause of the Fifth Amendment and the lack of authority (in the organic Constitution) to break into the people’s rights via legislation. (Please see the preamble to the Bill of Rights that explains its nature and purpose.)

      BTW, you don’t have to be a pirate to be a “privateer.” If you could put a ship, crew, and guns to sea, you could petition Congress for a “letter of marque and reprisal.” This authorized the private agent to prey on enemy shipping during times of war.

  12. In the First, Fourth, Ninth, and Tenth Amendments, the term “the People” means the individual. Since that is so, “the People” in the Second Amendment also means the individual citizen.

    1. I agree wholly with your definition of “the People”. The State (our Government) has no right to restrict the possession of firearms of any kind. You just have to supply you own firearm, ammunition, and be able to use them to defend our way of life against any enemy. Only those who are judged to be mentally incompetent by a court of law and are an imminent danger to themselves or others should be excluded.

  13. It is pretty clear in the civil war days if you could afford to buy a gun, you could buy what ever you convince a gun cotton foundry to build for you. after the war they shorten the name to foundries but there were no laws because the state had laws that existed prior to the creation of the united states that stated what a person of good standing could visit any trade market but that shop keepers could bar their doors to anyone. that there would be no sumptary laws for the sake of mirroring the nobility but that a free and open market would decide who could afford what but no matter what we decided as a country we would respect that other countries had different laws and beliefs. All stats were required to have areas were game could move through freely that would not have home built up against it so that people of all walks of life could hunt there to supplement their larders. That no mortars or cannon could be used because as time as people who owned mortars where over hunting the game. So they decided that small arms such as fifty caliber fire arms and hand cannon could be used as they could only shoot one bullet. That is in the papers that discus the late seventeen hundreds issues and adopting the existing laws of the lands that were in exsistance that the individual states had drafted at the time of the war for independence. Can you imagine what would happen if you carried the minigun off an aircraft into a store slung over your shoulder? outside of videogames it would not happen because common sense would tell you not to do it. Our laws are only supposed to cover things that harm others. an automatic weapon that cooks off when it hits the ground or knocks someone over back wards spraying ammo down range and every direction is a danger in the hands of untrained personel. The founding fathers belived that we needed every gun in the war and more often than not it was the ammo that people were short of, for them a society where everyone behaved did not exist. It does not exist today, people are deluding themselves in philoshy way to belive that all people carrying weapons does not slow and deter crime. the fire arm is the great equalizer not to be hide by the elite proatarian cops and felons and poor serfs hide in their rented fields only to pay their crops to share cropper who by nothing other than the ownership of a firearm took what they wanted of the crops. We fought the nasties wars in our history over it. We still call it the civil war. Lawyers need to go actually read their history before that say any type of fraud is good for them.

  14. “We the People” the first three words pretty much sums up what the Constitution is talking about and if a “well regulated militia” means joining one to have and keep your gun rights, every patriotic American would join , besides everyone should be a member of your local militia anyways

  15. the second amendment is very clear and simple. A well regulated(trained) militia(the People banded together) being necessary to the security of a free state, the right of the people (as in We The People) to keep(own ,possess) and bear(to carry or keep on ones person) arms(weapons, and no limit to what arms or how many is mentioned) shall not be infringed (interfered with).
    How can someone allegedly educated get it so wrong. I would think anyone who can actually read could understand the simple language of the bill of rights.

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