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The Mysterious Appearance, Disappearance, and Reappearance of 'Necessary to' in the Senate’s ‘Right to Bear Arms’ Amendment (9 September 1789)

by NAWilliford

Cite as: NAWilliford, ‘The Mysterious Appearance, Disappearance, and Reappearance of 'Necessary to' in the Senate’s ‘Right to Bear Arms’ Amendment (9 September 1789)’ in Bill of Rights 2018 Editors' Commentary, Quill Project at Pembroke College (Oxford, 2019), item 263.

Content

On 9 September, the Senate took up consideration of the House’s proposed fifth amendment reading:

‘A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person’ (See Committee of Three Report).

The Senate Journal records that a successful motion altered the phrase ‘being the best security of a free state’ to read ‘being necessary to the security of a free State’ (U.S. Senate Journal, 1st Cong., 1st sess., 9 September 1789). Immediately afterward, however, the Journal records that a successful motion reworded the entire article to read:

‘A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed’ (Ibid.).

Thus, the phrase ‘necessary to’ dropped out of the documentary record. A comparison with the original manuscript Journal reveals the same language (U.S. Senate Journal, 1st Cong., 1st sess, 9 September 1789, 243-44). Therefore, the disappearance of the phrase was not simply a printer's error (although, the possibility that it may have been a scrivener's error in copying the Journal manuscript remains).

The phrase ‘necessary to’, however, reemerges in the Senate’s final approved amendments as they were transmitted to the House, as evidenced by Oliver Ellsworth's draft of the amendments of 9 September and by the printed copy of the amendments dated 14 September 1789 (Oliver Ellsworth’s Draft, ‘Senate Amendments (September 9, 1789)’, Consource, available at: https://www.consource.org/document/senate-amendments-1789-9-9, accessed 13 December 2018; ‘Articles of Amendment, As Agreed to by the Senate (September 14, 1789)’, Consource, available at: https://www.consource.org/document/articles-of-amendments-as-agreed-to-by-the-senate-1789-9-14, accessed 13 December 2018).

The version that left the Senate, including the phrase ‘necessary to’, would ultimately be the version approved for transmission to the states for ratification, and, consequently, would be fixed in the Constitution as the Second Amendment. Yet, when and how the phrase came back into the article in the Senate, or, indeed, if it really dropped out at all, seem to be unattested in the documentary record.

Approved for publication

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