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Charles Marion Russell

Breaking Camp, by Charles Marion Russell

Charles Marion Russell  (March 19, 1864 – October 24, 1926)
Frederic Sackrider Remington (October 4, 1861 – December 26, 1909)
(co-featured in the video at the bottom of this post)
Photo credit: Wikipedia
(please click on small images to enlarge them)

The Second Amendment flawed, but…

I have reread the Second Amendment, and it seems to me that it lacks coherence.

As drafted by James Madison,  (16 March  1751 – 28 June 1836), the fourth President of the United States (4 March 1809 – 4 March 1817), and passed by Congress (25 September 1789), the second amendment read as follows:

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.

As ratified (15 December 1791) by Thomas Jefferson (13 April 1743 – 4 July 1826), then Secretary of State, but later the third President of the United States (4 March 1801 – 4 March 1809), it read and still reads:

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.

The two versions do not differ from one another except for two capital letters: Militia and State, removed by Thomas Jefferson, and the removal of a comma after “arms.” However, both seem flawed.

The Flaw

Here is the problem. The Second Amendment states that “[a] well regulated militia [is] necessary to the security of a free state,” but it fails to state explicitly that such a militia did not exist when settlers started to travel west of the Mississippi. The words “free state,” are followed immediately by the words: “the right of the people to keep and bear arms shall not be infringed.” Allow me to quote the Second Amendment again.

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.

In other words, the Second Amendment (see Bill of Rights) does not contain a clause to the effect that there was no “well regulated militia,” in the early years of Western expansion. Without that clause, it would be my opinion that the Second Amendment is not formulated clearly and that it could be misinterpreted.  In fact, 222 years later and with the presence of law-enforcement agencies, it would also be my opinion that the Second Amendment is de facto unenforceable, not to say mostly irrelevant.

Indeed, having said the above, I doubt very much that Thomas Jefferson would have considered settlers “[a] well regulated militia.” I believe therefore that the first part of the sentence, ie. “[a] well regulated militia being necessary to the security of a free state,” infers that in 1791 there was no “well regulated militia” and that this first part of the sentence was understood as inferring that such a militia did not exist.

In short, the historical context may clarify the Second Amendment but, if read out of context and literally, the amendment may convey the wrong message and may be misinterpreted or used in bad faith and to the detriment of the nation. This has long been the case among members of the National Rifle Association (NRA). I should also note that people tend to read or hear messages according to their expectations, which is an interfering agent labelled noise.

“Communication requires that the communicating parties share an area of communicative commonality.  The communication process is complete once the receiver has understood the message of the sender.”[i]

Buccaroos, by Charles Marion Russell

Buccaroos, by Charles Marion Russell

Attack on a Wagon Train, by Charles Marion Russell

Attack on a Wagon Train, by Charles Marion Russell


Hobbes’ “State of Nature

However, even rephrased, the Second Amendment remains “flawed.”

It could well be that in their attempt to get to the best land first and claim it for themselves, our settlers bearing arms may have been in Thomas Hobbes‘ state of nature. “In that state, each person would have a right, or license, to everything in the world, and therefore, lack of a rule of law.” (Thomas Hobbes, Leviathan, I.13 & 14)

One assumes that a “well regulated militia” and a social contract, ie. a rule of law, would precede the arrival of settlers.  If militias are difficult to regulate, imagine scattered armed settlers facing either baffled and indignant Amerindians or settlers competing for a piece of land, a piece of land that had been the Amerindian’s hunting-ground.  Amerindians whose territory was shrinking did massacre settlers. Under such circumstances, and settlers being armed, how could one avoid a “war of all against all” (bellum omnium contra omnes)? 

The real and the Mythical Wild West

Western expansion has often been idealized.

“It is a tale of conquest, but also one of survival, persistence, and the merging of peoples and cultures that gave birth and continuing life to America.”[ii]

Not quite!  There may not have been a duel once or twice a week, but there was both a real Wild West and a mythical Wild West, a Wild West created by the collective imagination and marketed convincingly by Hollywood. “No other nation,” says David Murdoch, “has taken a time and place from its past and produced a construct of the imagination equal to America’s creation of the West.”[iii]

Author Waddy W. Moore uses court records to show that on the sparsely settled Arkansas frontier lawlessness was common. He distinguished two types of crimes: unprofessional (dueling, crimes of drunkenness, selling whiskey to the Indians, cutting trees on federal land) and professional (horse stealing, highway robbery, counterfeiting).[iv]

Therefore, with respect to Western expansion, it would appear the founding fathers put the cart before the horse. Settlers went westwards before the arrival of a militia, not the other way around. Besides, the Manifest Destiny also militated against the rule of law. Americans were made to believe that they were destined to expand all the way to the Pacific. Yet Waddy W. Moore also writes that “once convicted, punishment was severe.”[v]  So, at some point, earlier than later I should think, the long arm of the law did reach a mostly untamed West. 


Given that Second Amendment lacks clarity, I believe it is flawed. Respect for the founding fathers has led me to state that “[a] well regulated militia being necessary to the security of a free state,” the opening phrase of the Second Amendment, inferred that there was no “well regulated militia[,]” which may have been the case, but truth be told, the Second Amendment does not indicate that a “well regulated militia” did not exist.


However, although the Second Amendment does not state that there was no well-regulated militia in the territories that were about to be settled, the Second Amendment did not transform settlers into a militia. It goes no further than allowing settlers the right to bear arms to protect themselves. But times have changed. What could protect settlers now endangers the life of innocent little children. So would that the Second Amendment had stated that in the absence and only in the absence of a “well regulated militia[,]” settlers could bear arms!

Yet, as drafted by James Madison and ratified by Thomas Jefferson, the third and fourth Presidents of the United States respectively, central to the Second Amendment is the notion of security: “A well regulated militia being necessary to the security of a free state.” Such is the spirit and the letter of the Second Amendment.  It may be flawed, but only in part.  When all is said and done, the Second Amendment is about security, every one’s security, but particularly the security of little children whose safety now demands that private citizens not bear arms, which is in keeping with the aforementioned spirit and letter of the Second Amendment.

Consequently, as I noted above, there is measure of bad faith on the part of members of the National Rifle Association. The boys are playing “cowboys and Indians” putting at risk the life of little children and in clear violation of the Second Amendment. Allow me to repeat that although the Second Amendment is flawed, security constitutes its chief component and main concern.

Instead of lobbying Washington, all four and a half million members of the National Rifle Association should visit the bereaved families of Newtown and apologize.  Moreover, instead of putting money in the pockets of politicians, members of the National Rifle Association should compensate the families of Newtown. Some mothers and fathers will not recover sufficiently to earn a living and some may require medical treatment.


[i]  Robert V. Hine and John Mack Faragher, The American West: A New Interpretive History (Yale University Press, 2000) p 10.  Quoted in Wikipedia, “The American Frontier.”
[ii] Waddy W. Moore, “Some Aspects of Crime and Punishment on the Arkansas Frontier,” Arkansas Historical Quarterly (1964) 23#1 pp 50-64. Quoted in Wikipedia, “The American Frontier.”
[iii] David Murdoch, The American West: The Invention of a Myth (2001) page vii. Quoted in Wikipedia, “The American Frontier.”
[iv] Waddy W. Moore, op. cit.
[v] Ibid.
© Micheline Walker
12 January 2013
— A Desperate Stand, by Charles Marion Russell

A Desperate Stand, by Charles Marion Russell