The Foreign Relations Amendment
In the discussion on the role of international relations in interpreting the Constitution there is one provision of the Bill of Rights that undoubtedly was drafted with foreign relations’ considerations in mind. This amendment was constructed first and foremost to address international repercussions that would follow from a denial of this right. So what amendment was it?
Indeed, as the D.C. Circuit notes in the recent decision in Parker v. District of Columbia, the amendment should be read in light of contemporaneous statutes, including the first Militia Act. That act gave the President the power to call forth the militia in cases of invasion by a foreign nation or Indian tribe, and also in the case of internal rebellion. Likewise, Article II vests in the President the power as commander-in-chief “of the militia of the several States” to call state militia into “service of the United States.” Early constitutional commentators understood the executive power to wage war to depend on the individual right to bear arms. In the absence of a standing army, this individual right safeguarded a federal power.
But of course, such an individual right is secured not to appease foreign sentiments in the halls of diplomacy but rather to defend against foreign encroachments in the theater of war. One might say that with the Second Amendment the Founders displayed a decent respect for the security of a free state from the incursions of mankind.