Why Does the Second
Amendment Refer to "The People"?

Madison’s draft of the Second Amendment declares that “the right of the People to keep and bear arms shall not be infringed”. He could have left out “of the People” without loss of meaning if he intended to guarantee that natural right to all. Alternatively, he could have defined the class of protected persons with some other term. For example, the Third Amendment pertains to “the Owner”. The Fifth Amendment reads “No person … “ The Sixth Amendment refers to “the accused”.

Consistency in constitutional interpretation precludes assuming any word to be happenstance. And, of course, the ratifying generation accepted this limitation of right to “the People”. Regardless of whatever might have been on anyone’s mind in the 18^th century, the Second Amendment was written and ratified with this constraint which we may not sweep under the rug.

Today, the debate concerning “the People” is focused on whether the right was intended to be limited to the militia. Instead, I wonder who Madison and the founding generation understood would be excluded from the class “the People”. (On occasion, the militia included a few individuals who would not have been construed to be full-fledged members of the political community.) .....

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