If we were drafting the Constitution today, I am absolutely certain that no one would suggest adding the Third Amendment. I’m also willing to bet that a lot of people have to think very hard to remember what it is. Yet, there it is in third place.

So, I’m sure you are wondering, what does it have to do with the Second Amendment. Perhaps, a lot as I will explain below.

The recent attempt on former President Trump’s life has once again brought about calls for more gun regulation. And, whenever anyone attempts to counter those arguments with a reference to the Second Amendment, the anti-gun advocates counter with, but it also says “well regulated” as if that supports their demands for more gun regulation.

That argument suggests to me that not only can they not read what the Second Amendment actually says, but that they don’t remember the history surrounding the Bill of Rights. This is where the Third Amendment comes in.

The Third Amendment, if you haven’t already remembered, deals with the quartering of troops in private homes. No one worries about that today. It simply isn’t done, and that is why no one would think of adding a prohibition on it in a constitution being drafted today.

But it must have been a matter of great concern at the time. We don’t usually pass laws prohibiting things that don’t bother us. If you think carefully about the Bill of Rights (the first ten amendments to the Constitution) you will realize that they are restrictions or limitations on the power of the federal government. They were intended to prohibit those abuses of governmental power that they had actually experienced. They were clearly not grants of power to the government. The authority granted to the various branches of government were spelled out in the prior Articles of the Constitution.  

So, if the Second Amendment is viewed in the light of history, what might the Framers actually have been saying? Why did they feel a need to add it? Surely they weren’t afraid that the newly established federal government was going to interfere with the ability of people to go hunting. So let’s look at the text. It 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 word “regulated” refers to “militia”, not “arms” or “the right of the people to keep and bear arms.” What is the purpose of that introductory phrase “A well regulated militia, being necessary to the security of a free state”? The Constitution already gave the federal government the authority to create an army and a navy. Wouldn’t that be sufficient for the security of the nation? So why was a militia “necessary to the security of a free state”? What was the immediate history with which the Framers were clearly familiar?

The “States,” having recently declared their independence from Britain in the Declaration of Independence, fought a war using state militias to truly establish that independence. Is it not possible that the Framers had some fear of a powerful federal government? Ratification by the states was going to be necessary to establish that Constitution to which the states were now going to be subordinate. Could that explain their concern about protecting “the security of a free state”?  

Is it not possible that some wondered if in the future it might be necessary for the states to take up arms against an abusive federal government as they had against George III? Would a “well regulated militia” be necessary for that task? If so, would it not be necessary to guarantee that the people have the right “to keep and bear arms”?  

Obviously, I cannot know what went through the minds of those who drafted the Second Amendment. But they must have had a reason. If it wasn’t to insure that people could have the means to revolt against an oppressive government, what could it have been? The Amendment was to prohibit the federal government from infringing the right to keep and bear arms. Why limit the federal government in this way? There had to be a compelling reason. Why else emphasize the necessity of a “well regulated militia” for the “security of a free state”?

Perhaps that necessity no longer exists. Perhaps, that necessity, like the necessity of the Third Amendment, is no longer needed. On the other hand, how many of the worst dictatorships in other lands would exist today if the people in those lands had enjoyed the benefit of keeping and bearing arms?

Think about it!

Howard Lurie is Emeritus Professor of Law, Charles. Widger School of Law, Villanova University