If we were to ask Americans today to name the most hotly debated amendment to the U.S. Constitution, many would say the Second Amendment: the right to bear arms. On the other end of the spectrum, the least debated would probably be the one that comes right after it: the Third Amendment.
But these were originally twin amendments to the Constitution. Together they were supposed to help “ensure domestic tranquility,” help keep the peace. They were designed to go hand in hand.
This episode of The Washington Post's “Constitutional” podcast examines the colonial and revolutionary roots of these two amendments, with renowned historian Gordon Wood — professor at Brown University and Pulitzer Prize-winning author of “The Radicalism of the American Revolution.”
Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple Podcasts, Stitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham
Transcript of “Episode 11: War”
LILLIAN CUNNINGHAM: It was March of 1770 in Boston. Snow silenced the cobblestone streets and the wharves on the waterfront creaked and moaned in the cold.
A couple blocks from the water, a British soldier was standing guard on the icy steps of the Customs House, in his red coat, his black tricorn hat. British troops had been in Boston for more than a year now--occupying the town, forcing the defiant colonists to pay taxes.
A young barber’s apprentice, a citizen of Boston, walked by the soldier on this winter night. Dusk had fallen early, hours before, and the sky was deep dark except for a tiny sliver of moon. There had already been rumbles up the street between groups of colonists and soldiers. But those had mostly quieted. Now, though, this young colonist and the British soldier got into a spat. The soldier hit the boy on the head with the butt of his musket. And soon enough this quiet, dark scene came alive.
The boy ran off shouting and crying, and he returned shortly with a crowd of other colonists. They started to form around the soldier, growing bigger, and angrier. Church bells, which were sometimes used to alert the town that there was an emergency, started ringing. They called more and more people outdoors into Boston’s brisk night air.
Then, other British soldiers arrived. They pushed through the mob of people to defend the officer. Boys from Boston were picking up stones, packing them in snow, and hurling them at the British. The rioting escalated. The town’s lanterns were glowing with whale oil; and when the wind blew in off the harbor, this street--King Street--flickered in and out of darkness.
All of a sudden, a scatter of shots burst from the British soldiers’ bayonets. They had fired into the crowd. Eleven colonists were hit. Three men died right there, on the icy ground. Two more would die soon of their wounds. That’s when the colonists’ screams, and the march of more soldiers arriving, woke the rest of Boston.
One report at the time described what happened next this way: “The troops had risen on the people, and the beat of drums, the church bell, and the cry of fire, summoned from their homes the inhabitants, who hastened to the place of alarm. In a few moments thousands collected, and the cry was ‘To arms, to arms!'
Revolution was rumbling.
I’m Lillian Cunningham with The Washington Post, and this is Constitutional.
If we were to ask Americans today to name the most hotly debated amendment to the U.S. Constitution, many would say: the Second Amendment, the right to bear arms. On the other end of the spectrum, the least debated would probably be the one that comes right after it: the Third Amendment.
What’s the Third Amendment again? You might be thinking. It’s the amendment about quartering troops--in other words, the amendment that prohibits soldiers from being housed in citizens’ homes.
Both amendments were enacted in 1791 as part of the Bill of Rights. But since then, the Second Amendment has become the subject of fierce, emotional, volatile debate in America. And the Third Amendment has kind of just tumbled into obscurity. It hasn’t seen a single Supreme Court case in the entire 226 years since its passage.
But the interesting thing is, these were originally twin amendments to the U.S. Constitution. Together they were supposed to help “ensure domestic tranquility,” help keep the peace. They were designed to go hand in hand.
Both of these amendments, taken together, were supposed to aid democracy by preventing a military state. They were supposed to constrain the army’s ability to oppress citizens. The Second Amendment, allowing citizens to have weapons and to form a militia, was supposed to reduce the need for full-time soldiers. And the Third Amendment was supposed to keep any soldiers from taking over citizens’ private property.
But neither amendment is really in use today the way it was originally intended.
So to understand the original design of these two amendments to ensure domestic tranquility, we’re going back to the colonial days of America, with renowned U.S. history scholar Gordon Wood. If his name sounds familiar, it might be from the scene in the film “Good Will Hunting” when Matt Damon’s character obliterates a Harvard student in a bar.
It turns out this is gonna be kind of a Boston-themed episode! Harvard bars, Gordon Wood, the Boston Massacre, the Boston Tea Party...
But, to understand how the tensions between British soldiers and civilians in Boston left an enduring mark on the U.S. Constitution, we actually first need to go all the way back to England in the 1600s. That’s when (and where) this deep fear of the military really took root.
Because before Americans were scared of the British military, the British were scared of the British military. In particular, they were scared of a thing called “standing armies.”
GORDON WOOD: The Second and Third Amendments grow out of the common English fear of standing armies, which goes back to at least the 17th century. It's a fear that the army is capable of tyrannizing a population.
CUNNINGHAM: This is Gordon Wood, history professor at Brown University and Pulitzer Prize-winning author of “The Radicalism of the American Revolution.”
WOOD: A standing army is a paid professional army similar to what we have and what we've mostly had throughout our history. That's the kind of army they feared. It’s an army of full-time soldiers, who train and are on duty even when there isn’t a war. The military we have today in the United States--that’s a standing army. The British soldiers who were occupying Boston on that snowy night of the massacre in 1770--that was also a standing army.
CUNNINGHAM: But the thing is, for a long time, that kind of army wasn’t really common. Instead, countries like England had previously had militias. Militias were just groups of citizens who would fight for their country when needed--like, if a war broke out. But the rest of the time they were just regular citizens. They had other professions, regular lives.
So when England organized its first standing army--its first full-time, professional army--in the mid 1600s, there was a lot of skepticism. British citizens weren’t used to this.
The backdrop was that England had been going through a very rocky time, on essentially two fronts. First of all, England was experiencing a lot of religious conflict. It had traditionally been a Catholic country, then the Church of England broke away. After that, there were a bunch of fights over exactly how protestant the country should be: Should it be Puritan? Should it go back to being Catholic?
The second source of conflict, which came to a head in the middle of the 1600s, was a power struggle between the parliament and the royals. This resulted in a series of civil wars that tore through the country, and that’s when England created its first professional military.
It was called the New Model Army, and it was formed by those who supported Parliament. A lot of the men in the army were Puritans. They didn’t like the king, King Charles I--he had married a Catholic, he had imposed taxes on British citizens without parliament’s consent, they felt he was a tyrant. So eventually this army launched basically a military coup and it executed King Charles. In his place, one of the military leaders, Oliver Cromwell, took power.
Cromwell is always portrayed with one of those big white puritan collars over his armor, and brown hair that kind of fluffs down to his shoulders.
Anyway, some people saw Cromwell as a liberator of England, but a lot of others saw him as a military dictator. Beyond killing the king, this army of his started doing other things that made British citizens very uneasy. The army turned on the parliament, which had created it, and it started making demands of them. It staged massive mutinies.
Eventually people were like, “This is kind of terrifying too. We don’t really like this army...” The army was disbanded, and a king returned to the throne. But then that king (King James) started building up another standing army of his own. And on top of that, he decided to deny British citizens the right to have their own weapons.
Meanwhile, over in France, King Louis XIV was using an army as well. He was telling his soldiers to occupy protestants’ homes and terrorize them, steal from them, destroy their property because they weren’t Catholic.
So you put all this together and you can see how, by the late 1600s, citizens had developed this really strong fear that professional armies were basically the tool of choice that tyrants and monarchs and dictators could use to terrorize their populations.
WOOD: Today we see it elsewhere in countries where the army is the stabilizing force and often the source of tyranny in communities. That fear is is a strong one and deeply embedded in English traditions. And we've inherited that.
CUNNINGHAM: That fear of soldiers doing the bidding of dictators came over to America. It was ingrained in the English colonists. Many of them had even decided to start new lives in the colonies precisely because they were worried about this kind of oppression in England.
These English colonists landed up and down the East Coast. They came over on ships south, to what’s now Virginia. On ships north, to what’s now Massachusetts. Lord Baltimore, a Catholic, was given the Maryland colony. The king’s brother, the Duke of York, was given a middle colony that was renamed New York. A wealthy Quaker, William Penn, got: Pennsylvania.
By the late 1700s, there were 13 British colonies and about 2 million colonists. But America was not an easy place to live.
WOOD: America has always been a violent people and certainly much more violent than England. Even in the 18th century, we had many more homicides per capita than the English did. It has to do with the social structure. People were less sure of who's who. Why is that person superior to me? The social structure in England is far tighter. People were far more aware of those above them and respected them in a way that just wasn't true here. There was far more struggles for social supremacy in America. So the crime rate was--relative to population, of course--was far greater in America.
CUNNINGHAM: Violence was there from the beginning. They were, after all, taking over land from native inhabitants and from other colonial powers. So guns were being used against Native Americans but also by Native Americans, since arms dealing had become such a popular trade in the colonies. And on top of all of this, there was a feeling that persisted among colonists of being unmoored, unconstrained, in this big, wild land far from England, where brutality was a matter of survival.
For quite some time, there weren’t any British soldiers stationed in America. But then in the 1750s, war broke out with the neighboring French colonies--this was the French and Indian War--and that’s when British troops first arrived.
They were here to fight on behalf of America (on behalf of their colonies). But when the war was over, they stayed. That’s when the the colonists and the British soldiers first started having problems. And those fears of military power were reawakened.
WOOD: In 1765, in the aftermath of the French and Indian War, the English pass a Quartering Act, which compelled the colonists to house soldiers--not in private homes, but in barns and inns and so on. Some of the colonists opposed this, mainly on grounds of money--that they were being compelled, particularly the Colony of New York, they were being compelled to spend money housing soldiers without having consented to it themselves. And that became part of the anti-British feeling that of course led to the Revolution.
CUNNINGHAM: This is also what would eventually lead to the Third Amendment, prohibiting soldiers from taking over private property.
The colonists were not happy about this new quartering act that the British had imposed on them. But interestingly, housing soldiers in civilian spaces was fairly common practice in England at the time.
WOOD: They didn't want the armies living in barracks, in concentrated barracks. So they said: Well, they should be scattered around the countryside in inns and barns and such.
CUNNINGHAM: In England, this practice was actually done to keep soldiers dispersed and to make it so they couldn’t hatch rebellions as easily. But in America, they saw this very differently. After years of not having a military around, the colonists did not welcome this imposition. And that was only the beginning. Here’s where we return to Boston, which sat at the very center of the tensions.
WOOD: A crucial clash comes in Massachusetts in 1768. The British, because Massachusetts was so disorderly, sent 4,000 troops.
CUNNINGHAM: To Boston.
WOOD: 4,000 troops in a town of 15,000.
CUNNINGHAM: The troops were sent to enforce some unpopular new taxation laws by the British government. Soon enough, the cobblestone streets of Boston clicked with the heels of soldiers. A standing army had set up permanent position among Boston’s citizens. In theory, the army was there to help keep the peace. But the soldiers’ presence tapped into that suspicion, that fear of takeover, and it pressed Boston into conflict.
WOOD: These were people of the same ethnicity. They were British soldiers living with a British population, but they were soldiers. And there was a lot of resentment and anger. There were soldiers sometimes taking part-time jobs in the community. And there was resentment of that. There was some even intermarriage between the soldiers and some of the women of Boston. And so it was bound to lead to some trouble and it did. That's the so-called Boston Massacre.
CUNNINGHAM: This is the scene we opened on, where a skirmish between soldiers and colonists on an icy March evening burst into violence. The British soldiers killed five civilians that winter night--in a town that already thought the soldiers shouldn’t be there.
WOOD: And boy, that really electrified the Boston population and fed into this fear of a standing army.
CUNNINGHAM: For a long time after the massacre, that fear kept simmering and bubbling up on the streets of Boston--the fear of a military that could terrorize and suppress citizens. Five years later, those tensions in Boston reached a boiling point: the famed Boston Tea Party.
Now, the Boston Tea Party didn’t directly involve the military. But it led to a final military crackdown that would burn Americans’ trust of England and that would ensure the future U.S. Constitution had amendments protecting citizens against soldiers.
What happened was that, in 1773, the British Parliament gave the British East India Company a monopoly on selling tea to America. The colonists were already annoyed about the taxes that they had to pay on tea, and they saw this new monopoly as unfair. It was kind of the last straw. When the company’s tea ships arrived in Boston, the colonists wanted the boats to turn around and sail back to England without dropping off their tea. But the governor of Massachusetts--Thomas Hutchinson, who strongly represented the interests of England--he allowed the boats to dock.
So on a December evening, there were three ships--the Dartmouth, the Beaver and the Eleanor--swaying out in Boston Harbor. In the winter darkness, a group of about a hundred colonists, spurred on by Samuel Adams, boarded these three ships. Within a few hours, they dumped 340 chests overboard into the cold waters, ruining what today would be nearly $2 million worth of tea.
In his diary the next day, John Adams--the soon-to-be founding father and the second cousin of Tea Party instigator Sam Adams--wrote: “This Destruction of the Tea is so bold, so daring, so firm, intrepid and inflexible, and it must have so important consequences, and so lasting.”
The consequences were important and lasting. It was this act of defiance and revolt that led the British Parliament to enact stricter laws against the colonists that lead to all-out revolution.
WOOD: One of the Coercive Acts that they acted against Massachusetts following the Tea Party was a new quartering act, which was very severe, much more serious than the one of 1765. And this gave the governor of Massachusetts the right to compel civilian citizens to house soldiers, if they would not pay for housing them in inns or barns or other places like that, they were compelled to house them in their homes. That of course was exactly what led to Jefferson's statements in the Declaration of Independence against housing soldiers in peacetime.
CUNNINGHAM: By the time, the colonies were declaring their independence from England and planning to start their own new government, two things were crystal clear to them about the military. One: They did not trust armies. And two: They particularly did not like any laws about soldiers being able to take over citizens’ homes.
In the Declaration of Independence itself, the colonists railed against the king that he had: “sent hither swarms of Officers to harass our people and eat out their substance. He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”
And, they criticized the king for: “Quartering large bodies of armed troops among us.”
And so, you can start to understand why the Second and Third Amendments to the U.S. Constitution would ultimately seem so fundamental and clear to the framers--they designed these two amendments to be safeguards in their future American democracy against a military state.
As America fought for independence, the colonies--turned states--began crafting their state constitutions. And many tried to write language into those documents that would prevent the type of military rule they had felt under the British government.
In Massachusetts, part of the state constitution read: “The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.”
Virginia’s state constitution had similar language. It said: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.”
So even before the U.S. Constitution was written, and before the 2nd and 3rd Amendments were added to it, these ideas were already appearing in the state documents. And part of what they were expressing was a desire to go back to relying on militias and on citizens’ right to bear arms as an alternative to having a standing army, which they now entirely distrusted.
WOOD: I suppose the closest we have today to a militia would be the National Guard, but it isn't quite what they had. Every man between 16 and I think 50 was obligated in most communities to belong to the militia. And if something serious happened, the militia was called out and men were supposed to come in and organize themselves and oppose some enemy. A militia is ordinary citizens who come when there's a threat, or pull out their guns and come and congregating in the center of the town and prepare to fight. It's a kind of amateur army.
CUNNINGHAM: So militias rather than standing armies were the favored method of defense among Americans. At least, many Americans. There were some notable exceptions...
WOOD: Now, during the Revolution, Washington--
CUNNINGHAM: George Washington, that is--
WOOD: He felt that militia were unreliable. Whenever they confronted real regular British soldiers, redcoats, they often ran and dispersed. They didn't stand up to the enemy, and he had a strong objection to the militia and he wanted regular soldiers. He and Hamilton were strongly in favor of what we would call a standing army, a professional military force.
Both of them, especially Hamilton, wanted to build up the United States as a fiscal military state capable of taking on the European powers on their own terms. And that meant a large army, a large navy.
CUNNINGHAM: But that concept of large, permanent military power was so out of favor at the time of the drafting of the U.S. Constitution in 1787, and at the time of the first session of Congress in 1789, that standing armies couldn’t even be discussed as an option.
Just about everyone along the political spectrum opposed standing armies. Thomas Jefferson--a Democratic-Republican who was for small government--opposed them. But even John Adams, a federalist who was interested in a strong national government, opposed them as well.
The idea that citizens should be empowered against, and protected from, the possibility of a military state was so self-evident, given the recent history with Britain, that those Second and Third Amendments slid easily into the Bill of Rights in 1791.
WOOD: Madison adds these amendments. And he was very shrewd because there are Antifederalists--that is, opponents of the Constitution--who wanted real amendments. That is to say, they wanted the curbing of the taxing power; they wanted curbing of the powers of the court; they wanted a curbing of powers of the president. And Madison decided to simply list common-law liberties that nobody objected to. There was no controversy over these amendments being added to the Constitution. Many of these amendments had been listed by the states in their state constitution, written in 1776. So there's nothing controversial at the time about particularly these two amendments.
CUNNINGHAM: They’re ratified and cemented into the Constitution without any real opposition--and without any sense that they might be misconstrued or controversial for future generations in the United States.
The Third Amendment read: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
That, of course, is a direct response to those Quartering Acts that the British Parliament forced on the colonies in the lead-up to the Revolution.
And the Second Amendment read: “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.”
WOOD: Although it's a very poorly worded amendment, the people who wrote the amendment did not draw the distinction that we do between individually owning a gun or belonging to the militia. Back then they would not have understood the distinction that many were trying to draw in the 21st century.
CUNNINGHAM: Having weapons and being able to use those weapons in the form of militias to defend the country were, to them, part and parcel of the same right.
WOOD: They would not have understood our debate, but they didn't have machine guns and so on. And so they they had a very different world. They couldn't anticipate the kind of issues that we're facing.
CUNNINGHAM: They couldn’t picture an America where a major threat to its domestic tranquility was gun violence in cities or mass shootings in small towns. Where perhaps the more present fear among many Americans wasn’t an army turned against civilians, but citizens turned against fellow citizens.
WOOD: The proliferation of guns in America is beyond anything that exists elsewhere in the developed world and it's become a peculiar kind of American tradition, unfortunately.
CUNNINGHAM: But the thing is: Not only could the framers not foresee the type of debates that would emerge over gun ownership today. Most of them would never have imagined that militias would be obsolete, either. Except for the few men like Alexander Hamilton, who were in favor of professional armies all along.
WOOD: Hamilton thought it might take four or five decades before the United States would build up a force capable of taking on the Europeans. And that turned out to be true. By the time we get to the Civil War, the United States mounted an army that was capable of taking on any European power if it had to.
CUNNINGHAM: And the size of that army has only grown over time. By now, in the 21st century, the U.S. military has close to 1.5 million active personnel. These people are employed full time by the Department of Defense, in peace as well as war. And the weapons arsenal the military has--including tanks, fighter jets, nuclear weapons--so far outstrips anything individuals could possess.
In other words, the Second and Third Amendments did not, in the end, prevent the formation of an ultra-powerful standing army--an army so powerful that it could tyrannize a population even without stepping on our Second and Third Amendment rights.
WOOD: Back then, the crown often could not mount anything more than a bunch of soldiers with the same kind of rifle or gun or musket that the individuals had. You could put up cannons and so on, but still the nature of the firepower was not what it is today. There's no way private citizens can mount anything that would be comparable to what the U.S. government can mount.
CUNNINGHAM: So instead of relying on the Second and Third Amendments to secure us from military takeover, we mostly rely on other pillars of the Constitution--we rely on democratic elections and free speech and so forth--to create the kind of society where a military wouldn’t terrorize its own citizens by turning bombs and nuclear weapons on them, even though it could.
So where does that leave something like the Second Amendment today? The right to bear arms, in the United States, has evolved into a different right. If it serves some type of defense, it’s the defense against other individuals--other civilians--more so than an effective defense against military tyranny.
For a couple hundred years--until the late 20th century--the Second Amendment was discussed almost as infrequently as the Third Amendment. People had guns, in the same way people had homes that weren’t occupied by soldiers, but both amendments seemed more like historical relics, reminders of our revolutionary story, rather than core features of present-day America.
As gun violence has risen, though, it’s asked new questions of us as a society. And one of those questions is, what does it mean to keep the spirit of these amendments alive? And maybe not just alive, but also relevant and valuable?
WOOD: It seems to me it doesn't stop us from trying to regulate the ownership of guns in various ways.
CUNNINGHAM: That was, in effect, what happened in England. After King James had built his own standing army and took away British citizen’s right to bear arms, he was chased off the throne. And to get rid of these concerns once and for all about oppressive monarchy, the Bill of Rights that the British then wrote at the end of the 1600s gave protestant citizens back the right to bear arms. That language about the right to bear arms, in the British Bill of Rights, was what carried over to America hand in hand with the fear of standing armies.
But in England ever since, despite listing the right to bear arms in its Bill of Rights, the country has instituted more and more restrictions and regulations on that right, until today gun possession is very rare--with the exception of some guns that are still around for hunting and sport and things like that. But gun deaths in England are among the lowest around the globe.
So could the U.S. version of that right ever evolve in a similar way?
The colonial and revolutionary impulses that gave birth to America’s Second and Third Amendments have left a lasting imprint on our culture. Understanding their history helps explain certain paranoias that Americans have as a society--certain sensitivities to government force, certain fears of liberties that could be stripped, a certain reluctance to disarm citizens.
But these amendments don’t actively serve the same purpose they once did: And a question for America today is, given that, what do we do? Do we let them play a passive role as hallmarks of our history? Reminders on paper of the Boston Massacre? Or the Quartering Acts by British troops? Do we let them play an entirely new role as defense or aggression against other citizens? Or do we figure out how to re-envision them or regulate them or recast them or reimagine them into better protectors of the peace and domestic tranquility we seek in a new century? And what would that look like?