The Foreign Relations Amendment

The Second Amendment. It provides that “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.” Whether one ascribes to a collective rights or an individual rights theory of the Second Amendment, there is common ground among both camps that the primary concern was for the security of a free State. Security from what? Well, of course, foreign or Indian invasion. There is disagreement as to whether the amendment furthers other purposes, such as individual self-preservation or in order to resist and throw off a tyrannical government. But there is no dispute that a well-armed populace was viewed as necessary so that they could be called upon to protect the nation’s security interests from threats from abroad.

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.