--- title: The Supreme Court Gets a 'Well Regulated Militia' Wrong description: Government, wrote Alexander Hamilton, should substitute “the mild influence” of the law for “the violent and sanguinary agency of the sword.” canonical: https://time.com/6331868/supreme-court-second-amendment-history/ author: TIME article:opinion: false article:content_tier: free article:published_time: 2023-11-07T13:00:00.000Z article:modified_time: 2026-08-04T07:42:50.219Z article:section: History og:title: What the Supreme Court Gets Wrong About the Second Amendment og:description: Government, wrote Alexander Hamilton, should substitute “the mild influence” of the law for “the violent and sanguinary agency of the sword.” og:url: https://time.com/6331868/supreme-court-second-amendment-history/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt73e98fa33cd27dff/698a4211096a9452c86ae4cf/gun-safety.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 og:image:width: 1024 og:image:height: 576 og:image:alt: Gun safety advocates rally in front of the U.S. Supreme Court og:type: article twitter:card: summary_large_image twitter:title: What the Supreme Court Gets Wrong About the Second Amendment twitter:description: Government, wrote Alexander Hamilton, should substitute “the mild influence” of the law for “the violent and sanguinary agency of the sword.” twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt73e98fa33cd27dff/698a4211096a9452c86ae4cf/gun-safety.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 ---  # What the Supreme Court Keeps Getting Wrong About the Meaning of a ‘Well Regulated Militia’ > Sponsored content. 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They are at time.com/newsletters and are separate from a paid subscription. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-sub-2026q3/newsletters?i=eb78debb-2dda-4fed-b1bd-27668eb0b3be&cr=time-sub-2026q3-v1) * TIME Subscriptions: [time.com/subscribe-agent](/c/time-sub-2026q3/subscribe?i=eb78debb-2dda-4fed-b1bd-27668eb0b3be&cr=time-sub-2026q3-v1) ## Video: Maine Mass Shooter’s Family Reached out to Sheriff 5 Months Before Rampage: Authorities [Watch (HLS stream): Maine Mass Shooter’s Family Reached out to Sheriff 5 Months Before Rampage: Authorities](https://cdn.jwplayer.com/manifests/WGEnrjwq.m3u8) (1:54)  _Published 2023-10-31. Five months before the deadliest mass shooting in Maine’s history, the gunman’s family alerted the local sheriff that they were becoming concerned about his deteriorating mental health while he had access to firearms, authorities said Monday._ by [Dominic Erdozain / Made by History](https://time.com/author/made-by-history/) ## Dominic Erdozain / Made by History Nov 7, 2023 1:00 PM UTC  Gun safety advocates rally in front of the U.S. Supreme Court before during oral arguments in a Second Amendment on Dec. 2, 2019 in Washington, D.C. Gun safety advocates rally in front of the U.S. Supreme Court before during oral arguments in a Second Amendment on Dec. 2, 2019 in Washington, D.C. Drew Angerer—Getty Images by [Dominic Erdozain / Made by History](https://time.com/author/made-by-history/) ## Dominic Erdozain / Made by History Nov 7, 2023 1:00 PM UTC On Nov. 7, the Supreme Court will [debate](https://time.com/5433987/guns-common-ground/) whether a drug dealer in Texas with a history of armed violence is entitled to own a gun under the Second Amendment. _United States v. Rahimi_ is the latest in a series of cases that have transformed the legalities of gun ownership in America. Beginning with _District of Columbia v. Heller_ in 2008, the Court has interpreted a phrase long-understood as protecting the state militias as conferring a personal right to own a gun. It was, wrote Justice Paul Stevens in a [blistering dissent](https://supreme.justia.com/cases/federal/us/554/570/#tab-opinion-1962736), “a dramatic upheaval in the law.” But _Heller_ was just the start. The Court has since struck down handgun regulations in Chicago and New York, dismissing public health considerations as secondary and ultimately irrelevant to an untouchable constitutional right. As we await another case built on that premise, now is the time to ask: Is the Court restoring American liberties or tearing them up? **_Read more:_** [_Supreme Court to Decide Whether Some Domestic Abusers Can Have Guns_](https://time.com/6332044/supreme-court-rahimi-guns-domest-violence-case/) The [current Court's interpretation](https://time.com/6190411/guns-supreme-court-new-york/) of the Second Amendment is incompatible with the republican philosophy that underpinned the Constitution and animated the Founders’ thinking. Such a right risked allowing an individual the right to tyranny over one’s fellow Americans—similar to the absolute right a monarch had over his people, and thus the very thing the Founders wanted to prevent. When the states debated the Constitution in 1787, they produced a storm of erudition covering every icon and anxiety of the republican mind. Whether the proposed government would deprive individuals of their gun rights was not among them. ### More From TIME The impetus for the[ Second Amendment](https://time.com/6111970/guns-supreme-court/) was the fear that state militias would drift into redundancy under a powerful national government—a government authorized both to raise professional armies and to arm the state militias. Under this arrangement, it was feared, the militias could either be absorbed into one, European-style “standing army,” or left to crumble while professional soldiers were recruited to do the work of national security. **_Read More:_** [_States Are Banning Assault Weapons. Courts Could Stop Them_](https://time.com/6267296/state-assault-weapons-bans-courts-future/) That’s precisely what the Founders dreaded—the emergence of a permanent or “standing” army — and they saw surrendering control of the local militias as a fatal step in that direction. Nobody could be certain how these powers would play out, but the Second Amendment was [James Madison’s promise](https://time.com/5216782/john-paul-stevens-repeal-second-amendment/) that Congress could never disarm the state militias. The wording was prosaic and unhurried, as if everybody knew what was at stake: “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.” This was military language marshaled to a military cause. It was not just that the Founders said nothing about arming the individual: they couldn’t have done so without betraying their political creed. They feared the tyranny of the individual as profoundly as the tyranny of kings, and their faith in a well-regulated militia was their answer to both dangers. It was no good having the power to raise armies and navies, warned several writers, if you fell into chaos and anarchy at home. Keeping the peace was the first duty of government, and a well-regulated militia was the appointed means—no small matter, in an age before professional police forces. It was the work of the militias, wrote one of the most eloquent advocates of the Second Amendment, “to provide for the protection and defense of the citizen against the hand of private violence, and the wrongs done or attempted by individuals to each other.” To compromise the militias was to threaten liberty at its most basic level: it was to leave the weak at the mercy of the strong. When the Founders spoke of the right of “the people” to keep and bear arms, in other words, they were not trying to arm individuals. They were trying to secure the community _against_ the armed individual: the hand of private violence. This idea was, in fact, the founding principle of the liberal state. The very “idea of government,” wrote Alexander Hamilton, was to substitute “the mild influence” of the law for “the violent and sanguinary agency of the sword.” Its original purpose, wrote the philosopher John Locke, was “to restrain the partiality and violence of men.” This was a government designed for “men,” not “angels,” in Madison’s classic formulation. Left to themselves, observed Locke in his hugely influential _Treatises of Government_, men would quarrel. They were slaves to their passions and prisoners of pride. Even the most rational and intelligent people could sink “to a Brutality below the level of Beasts” when their honor was on the table. True freedom began when they agreed to trim their sails, sheath their swords, and “resign” their natural proclivity for vengeance to the sober “umpirage” of the community. Only that would provide a sanctuary from the dark moods and “sudden thoughts” of one’s neighbors. The secret, Locke explained, was collaboration and consent. The forces that were wild and free in the “state of nature” now served the common good. And the vehicle for that was the militia. It channeled the strength that a man once exerted as he saw fit “to assist the executive power of the society, as the law thereof shall require.” Every able-bodied man joined the militia as part of this social contract—people enjoyed the benefits of living in a community, and paid their way through militia service. The right to keep and bear arms, then, was the antithesis of the modern concept of an individual entitlement. The right enshrined by the Second Amendment was the right of the states to provide protection against domestic and foreign violence for all members of the community. It had nothing to do with individual gun rights — except to protect people from those who would claim such prerogatives. And for most of America’s history, this precept was well understood. Only in the South, where slavery created its own species of common law, was there any sort of challenge to this collective and military interpretation of the right to bear arms. But even there, where firearms were much more prevalent than in the North, the carriage of weapons was regulated and often prohibited by law. With the exception of a notorious 1846 case in Georgia, courts vigorously upheld these laws, appealing to both the letter and spirit of the Constitution. **_Read More:_** [_The Supreme Court Just Expanded Gun Rights. Here’s What That Means_](https://time.com/6190411/guns-supreme-court-new-york/) Republics, advised a famous ruling in Arkansas in 1842, did not vote for “anarchy.” To suggest that, in providing for a well-regulated militia, the Founders were condemning their descendants to cower under a reign of _un_regulated firepower,[ was to trade in absurdity](https://time.com/5169210/us-gun-control-laws-history-timeline/). To deprive the legislature of the power to control firearms, argued the judge, would frustrate the end and aspiration of government: “peace and domestic tranquility.” It would condemn everyone to the perils that made government necessary in the first place. It was unthinkable that the architects of the Constitution would have authorized “a principle pregnant with such dangers.” The Georgia Supreme Court struck a similar note of incredulity in an 1874 opinion. To have included an individual right to deadly weapons in the Constitution, declared the judge, the Founders would have had to believe “that their whole scheme of law and order, and government and protection, would be a failure.” Because that was where citizens armed with revolvers—these “inventions of modern savagery"—would take America. The point was made even more sharply in Texas, where gun toting Confederate veterans unleashed a wave of terror in the decade after the Civil War. The world had seen too much blood shed in “the name of natural or personal liberty,” declared the state Supreme Court in 1872\. This wild and dangerous freedom, explained the judge, was “exchanged under the social compact of States, for civil liberty”—a very different animal.  Prohibitions against lethal weapons, therefore, were the soul of freedom and essential to democracy. The alternative was a state of war. “We must not,” warned the judge, “go back to that state of barbarism in which each claims the right to administer the law in his own case; that law being simply the domination of the strong and the violent over the weak and submissive.” It is therefore unfortunate that, in building its case for individual gun rights, the Supreme Court has leaned on the one exception to this pattern of condemnation—the infamous 1846 Georgia decision in _Nunn v. State_. The _Nunn_ opinion stood alone in divorcing the right to bear arms from the duty of serving in the militia, and it was crafted by a notorious white supremacist for the purpose of controlling slaves. By relying on this exception, the justices have distorted the Second Amendment and created the very thing that would have scared the Founders: a populace heavily armed for reasons other than military service. They’ve turned the American political creed on its head and threatened the very liberty that the Founders tried to safeguard. “Remember, all men would be tyrants if they could,” wrote Abigail Adams in 1776\. That is no less true today. _Dominic Erdozain is a visiting professor at Emory University and the author of_ [One Nation Under Guns](https://urldefense.com/v3/%5F%5Fhttps://www.penguinrandomhouse.com/books/725798/one-nation-under-guns-by-dominic-erdozain/%5F%5F;!!IBzWLUs!XPaJ0sg%5FJJR16uSJ8mysCSEHjzaPqxfb0BKVuYeIqqeztou9ecLr9XKbZPDCEPsOmnzBK-r9oTT9OCr3qg3LQqLBFNQG%5Fr2S$). _Follow him_ [_@domerdozain_](https://urldefense.com/v3/%5F%5Fhttps://twitter.com/domerdozain%5F%5F;!!IBzWLUs!XPaJ0sg%5FJJR16uSJ8mysCSEHjzaPqxfb0BKVuYeIqqeztou9ecLr9XKbZPDCEPsOmnzBK-r9oTT9OCr3qg3LQqLBFFzRAIo0$) _on X._ _Made by History takes readers beyond the headlines with articles written and edited by professional historians._ [_Learn more about Made by History at TIME here_](https://time.com/6317798/introducing-made-by-history-for-time/)_._ ## Transcript Still continuing to respond to continuing to investigate who knew what when and we want to get it the at the best answer to how can we prevent something like this from happening that include why did it happen in the first place? And what most gives me? Excuse me? What measures may have been a place that weren't used or were used and that's what we'll get to the bottom of the law enforcement Community activity information. a why was that. I think those kinds of facts are yet to be determined you're making assumptions. I'm not willing to make those assumptions. Alright, I believe the people of Maine deserve a serious and robust conversation about gun violence and Public Safety at the state and federal level levels in the coming weeks. To that end. I want to bring together legislative leaders on both sides of the aisle. along with Public Safety officials Public Health people Members of the judicial system Advocates on all sides psychiatrist community members and others for a thoughtful and comprehensive discussion. I'm not going to stand here today and tell you that I'm proposing XYZ, but I'm here to listen and to work with others get people around the table as probably as possible in memory of those we've lost. I'm ordering that all United States and state of Maine Flags. Remain Lord through Sunset Friday, November 17th. That's an additional 18 days to honor each person who is taking taken from us by this unspeakable tragedy. ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/6331868/supreme-court-second-amendment-history/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/6331868/supreme-court-second-amendment-history/"},"headline":"What the Supreme Court Keeps Getting Wrong About the Meaning of a ‘Well Regulated Militia’","datePublished":"2023-11-07T13:00:00.000Z","dateModified":"2026-08-04T07:42:50.219Z","description":"Government, wrote Alexander Hamilton, should substitute “the mild influence” of the law for “the violent and sanguinary agency of the sword.”","url":"https://time.com/6331868/supreme-court-second-amendment-history/","keywords":["Made by History"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt73e98fa33cd27dff/698a4211096a9452c86ae4cf/gun-safety.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"Dominic Erdozain / Made by History"}],"articleSection":"History","image":[{"@type":"ImageObject","url":"https://static.time.com/v3/assets/bltea6093859af6183b/blt73e98fa33cd27dff/698a4211096a9452c86ae4cf/gun-safety.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","width":1200,"height":675,"headline":"Gun safety advocates rally in front of the U.S. Supreme Court","caption":"Gun safety advocates rally in front of the U.S. Supreme Court","creditText":"Drew Angerer—Getty Images","representativeOfPage":true}],"publisher":{"@type":"Organization","name":"Time","url":"https://time.com/","logo":{"@type":"ImageObject","url":"https://time.com/images/logo.png","width":528,"height":156},"foundingDate":"March 3, 1923","sameAs":["https://www.facebook.com/time","https://www.instagram.com/time/?hl=en","https://twitter.com/time","https://www.pinterest.com/timemagazine"]}},{"@context":"https://schema.org","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"item":{"@id":"/section/history/","name":"History"}},{"@type":"ListItem","position":2,"item":{"@id":"/tag/made-by-history/","name":"Made by History"}},{"@type":"ListItem","position":3,"item":{"@id":"https://time.com/6331868/supreme-court-second-amendment-history/","name":"What the Supreme Court Keeps Getting Wrong About the Meaning of a ‘Well Regulated Militia’"}}]},{"@context":"https://schema.org","@type":"VideoObject","name":"Maine Mass Shooter’s Family Reached out to Sheriff 5 Months Before Rampage: Authorities","description":"Five months before the deadliest mass shooting in Maine’s history, the gunman’s family alerted the local sheriff that they were becoming concerned about his deteriorating mental health while he had access to firearms, authorities said Monday.","thumbnailUrl":"https://cdn.jwplayer.com/v2/media/WGEnrjwq/poster.jpg?width=720","uploadDate":"2023-10-31T16:05:44.000Z","contentUrl":"https://cdn.jwplayer.com/manifests/WGEnrjwq.m3u8","embedUrl":"https://time.com/6331868/supreme-court-second-amendment-history/","duration":"PT1M54S","potentialAction":{"@type":"SeekToAction","target":"https://time.com/6331868/supreme-court-second-amendment-history/?jw_start={seek_to_second_number}","startOffset-input":"required name=seek_to_second_number"}}] ```