Understanding The Second Amendment Through History And Natural Law

What if the fiercest argument about the Second Amendment is solved by going back to grammar, history, and first principles? We bring on Professor Nelson Lund—constitutional scholar and author of Rousseau’s Rejuvenation of Political Philosophy—to cut through the noise with a clear reading of the text, a tour of English militia traditions, and a deep dive into the natural rights foundation that powered the founding era.

We start where the framers started: with England’s uneasy balance between standing armies and a citizen militia, and with Americans’ fear that concentrated military power would swallow liberty. From there, we unpack why the Constitution authorized peacetime armies, why Anti-Federalists worried about oppression, and why the Second Amendment’s operative command—“the right of the people to keep and bear arms, shall not be infringed”—protects an individual right. Professor Lund explains how “well-regulated” meant appropriate rather than heavy-handed, and how the amendment restrains Congress from disabling the people under the guise of militia regulation.

As the conversation moves to modern law, we examine incorporation under the Fourteenth Amendment and the reality that today’s regulations raise questions the founders didn’t face. Lund turns to Locke and Blackstone to argue that self-defense sits at the core of our political morality: government bears primary responsibility for enforcement, but individuals retain the right to repel lethal threats and resist oppression when law fails. That framework helps distinguish rules that enhance safety—like universal airport screening—from unsecured “gun-free zones” that signal vulnerability.

Finally, we explore a provocative civic proposal: revive a modern militia ethos through universal small-arms competence, end outdated exclusions, and use training to foster self-reliance, especially for those most at risk. The result is a fresh lens on gun policy that prioritizes liberty without trivializing safety and treats citizens as responsible partners in their own protection. If you value constitutional clarity and practical solutions, this conversation will challenge assumptions and sharpen your thinking.

Professor Lund recommends The Heritage Guide to the Constitution for more, including the section on the Second Amendment that he authored. 

More from Professor Lund Here

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Center for American Civics

Episode Transcript

SPEAKER_01 (00:00):
Today's guest is Nelson Lund, distinguished
university professor at GeorgeMason University's Anton and
Scalia Law School.
Professor Lund is the author ofRousseau's Rejuvenation of
Political Philosophy, A NewIntroduction, and has written
extensively on constitutionallaw, including topics like
federalism, separation ofpowers, and the Second

(00:20):
Amendment.
He earned his PhD in politicalscience from Harvard and his law
degree from the University ofChicago, where he served as
executive editor of the LawReview.
His career includes service inthe U.S.
Department of Justice, the WhiteHouse Counsel's Office, and
clerkships with Justice SandraDay O'Connor and Judge Patrick
Hagenbotham.
At George Mason, he teachesconstitutional law and

(00:43):
jurisprudence, and a scholarshipcontinues to shape debates about
the Constitution and Americanlegal thought.
Professor Lunn, thank you somuch for being here today.
I'm excited to talk about theSecond Amendment.
So the Second Amendment refersto, quote, a well-regulated
militia.
Did the founders think thatpeople had the right to keep and

(01:04):
bear arms only if they wereenrolled in the militia?

SPEAKER_00 (01:07):
No, they didn't.
But we need a little backgroundhere.
Starting in the 20th century, alot of debate about, there was
been a lot of debate about anindividual right versus a
state's right interpretation ofthe Second Amendment.
But that question never came upduring the founding period.
And in order to see why not, andwhy the founders were motivated

(01:32):
to adopt the Second Amendment,it's helpful to go back to
England.
There's a long history ofconflict over the use of
military forces in Englishhistory.
And the condominium, so tospeak, that was eventually
arrived at in England allowedthe Crown to raise armies only

(01:57):
for foreign wars.
And that had to be paid for byParliament, which gave
Parliament a lot of power overthe crown.
As for domestic, to preservedomestic tranquility and to
repel sudden invasions, theycame up with a cheaper
alternative, which was themilitia, which consisted of most

(02:20):
able-bodied men who wererequired to undergo some unpaid
military training and beavailable when the crown needed
them to do things like suppressriots or that sort of thing, or
a sudden invasion if that wereto occur.
Well, at the at this at the ourconstitutional convention,

(02:40):
people were very aware of this,very aware of this history.
And they had a kind of, I wouldsay a kind of sentimental
attachment to the militia,because it had been such an
important part in preserving therights of the people in England,
and then again to some extent inthe United States before we

(03:02):
became a nation.
So there was a very distrust ofstanding armies in peacetime,
because the the, as we had seenin our colonial history, the the
crown of this path to abuse theuse of military force in dealing
with civilian population.
So there was kind of a, I wouldsay a sentimental or kind of

(03:23):
romantic attachment to the oremotional attachment to the
militia.
But during the ConstitutionalConvention, the framers decided
to authorize standing armies inpeacetime and create federal
control over the state militias.
And they did this because oftheir experience during the

(03:44):
Revolutionary War, where themilitia forces had proved to be
just not a sufficient means ofnational defense.
Now, during ratification, thiswas a major issue because the
Anti-Federalists were veryworried about oppression by a
powerful new federal government.

(04:04):
Nobody knew how the new federalgovernment was actually going to
operate, and people were afraidthat it might usurp the rights
of the states and oppress thepeople.
Now, the Federalists argued thatthis wasn't a serious risk, in
part because the American peoplewere armed and they would be
impossible to subdue through thekind of military force that the

(04:28):
federal government would be ableto raise at that time in our
history.
Now, the Second Amendment wascompletely uncontroversial
because nobody argued that thefederal government should have
any power to disarm Americancitizens.
Since the Bill of Rights appliedonly to the federal government,
the states were left with theirpre-existing authority to

(04:50):
regulate guns and other weaponsas they saw fit.
Now, as it happened, the statesimposed virtually no
restrictions on the right tokeep and bear arms at the time
the Bill of Rights was adoptedor for many years thereafter.
The few regulations that existedapplied almost exclusively to
the misuse of weapons, not totheir possession, not to their

(05:12):
being carried around in public.
Because there were no federalgun control laws like those that
we have today, there was noreason for people to talk about
whether the Second Amendmentwould allow Congress to adopt
such laws.

SPEAKER_01 (05:26):
So if the founders, you say it wasn't controversial,
if they didn't discuss theissue, like where can we kind of
look for the answer in all ofthis?

SPEAKER_00 (05:37):
Well, I think the first step is where we should
always begin with theConstitution, is to read the
language very carefully,starting with the prefatory
phrase about the militia, whichsays a well-regulated militia
being necessary to the securityof a free state.
Grammatically, this phrase is anablative or nominative absolute.

(05:58):
Such grammatical constructionsdo not modify or limit anything
in the operative clause.
Typically, they explain thepurpose of the statement in the
operative clause.
The real command of the SecondAmendment comes in that
operative clause, which saysthat the right of the people to
keep and bear arms shall not beinfringed.

(06:20):
The right of the people is thesame terminology used in the
First and Fourth Amendments toadopt to identify a right that
belongs to individuals, not tothe government.
Now, the next thing to look atis Article I of the
Constitution.
Section eight gives Congressalmost plenary authority to
regulate the militia.

(06:41):
The Second Amendment does nottake any of that authority away
from Congress and give it to thestates.
Any such interpretation wouldhave been, would have generated
a lot of controversy, but thatdidn't happen.

SPEAKER_01 (06:56):
So if the Second Amendment doesn't change the
allocation of the authority overthe militia, why does it talk
about a militia at all?

SPEAKER_00 (07:05):
Well, to answer this question, you have to recognize
that the term well-regulateddoes not necessarily mean
heavily regulated.
It has a more general meaning,namely appropriately regulated.
Something's well-regulated ifit's appropriately regulated.
Or to put it another way, it'snot inappropriately regulated.

(07:25):
And what the Second Amendmentdoes is to forbid Congress to
enact one specific category ofinappropriate regulations,
namely those that infringe onthe right of the people to keep
and bear arms.
There was good reason to worryabout this possibility.
Under the broad authority givento Congress by the necessary and

(07:46):
proper clause of Article I,Congress might have been tempted
to seize people's weapons underthe pretext of exercising its
very broad authority to regulatethe militia.
So, for example, it might havesaid all arms shall be stored in
government-controlled arsenals,and people are not allowed to
keep their weapons at home thatthey'll need for militia duties.

(08:10):
The Second Amendment simply saysthat this sort of thing is
forbidden.
By forbidding certaininappropriate regulations, the
Second Amendment uh fosters awell-regulated militia.

SPEAKER_01 (08:22):
Hasn't the world changed quite a bit since the
18th century?
So how does that make itdangerous to leave guns
completely unregulated?

SPEAKER_00 (08:33):
Well, the world has changed for sure, but that
doesn't need that doesn't meanwe need to misinterpret the
Second Amendment.
First, recall that it originallyapplied only to the federal
government.
So the states were free toregulate weapons as they saw
fit.
It was only in the 20th centurythat the Supreme Court started
applying some provisions of theBill of Rights to the states.

(08:56):
But in 1868, when that amendmentwas adopted, there was very
little regulation of weapons,mostly just restrictions on
concealed carry.
It's true that various changesin society have now made
significant gun control lawspolitically popular, which was
not the case in 1791 or 1868.

(09:18):
So we're now faced withquestions about the
constitutional limits of thegovernment's regulatory
authority that just didn't comeup when the Second and 14th
Amendments were adopted.

SPEAKER_01 (09:31):
So how should we be thinking about those
constitutional limits today?

SPEAKER_00 (09:37):
I think the most important point to keep in mind
is that the natural or inherentright of self-defense is at the
very foundation, is at the veryfoundation of our political
system.
We can see that in the writingsof John Locke, who was the true
father of our Declaration ofIndependence.
According to Locke, the naturallaw forbids us to harm other

(09:59):
people and gives each of us theright to enforce that law by
force if necessary.
When we form a politicalsociety, we transfer that
personal right of enforcement tothe government, but we always
retain the right of self-defensewhen the government is unable or
unwilling to enforce the naturallaw.

(10:21):
You can see this through anexample.
According to Locke, if someonesteals your money, you
ordinarily must rely on thegovernment to punish the thief.
But if someone threatens to killyou if you don't hand over your
money, you have an immediateright to kill the robber.
For the same reason, peoplealways retain the right to
resist a predatory government,including, if necessary, through

(10:45):
a political revolution.
The same principle was adoptedby William Blackstone, the
English jurist who was theleading authority on English law
among founding Arab Americans.
He said that the right to keepand bear arms was an
indispensable barrier thatprotects the fundamental rights
of personal security, personalliberty, and private property.

(11:09):
Blackstone emphasized that theright to keep and bear arms is
derived from the natural rightof resistance and
self-preservation when the lawsof society are insufficient to
restrain the violence ofoppression.
Consistent with Locke's view,Blackstone drew no distinction
between oppression by thegovernment and by oppression by

(11:33):
criminals from whom thegovernment is unable or
unwilling to restrain.
Now, naturally, Blackstonerecognized that the government
may regulate the possession anduse of weapons in order to
prevent criminals from violatingour natural rights to life,
liberty, and property.
But in order to determine whichregulations are permissible, we

(11:55):
have to ask whether theregulation unduly compromises
the absolutely fundamental rightto self-defense.
So, for example, a regulationthat sets up security measures
that stop everyone from bringinga gun onto an airplane actually
enhances the protection for theright to life.
But that's not true when thegovernment declares various

(12:18):
public places to be gun-freezones without the kind of
security screening that we haveat airports.
This kind of rule simply createsan invitation for violent
criminals because they can besure that law-abiding people
will be easy victims in agun-free zone, so-called
gun-free zone.
It's no coincidence that a veryhigh proportion of mass

(12:40):
shootings occur in theseso-called gun-free zones.
A better name, I think, would behelpless victim zones.
And these zones violate theprinciples on which the Second
Amendment is based.

SPEAKER_01 (12:53):
So obviously, we should be enforcing the Second
Amendment because it's part ofthe Constitution.
But when in doubt, should we erron the side of public safety
then?

SPEAKER_00 (13:03):
I would say that when in doubt, we should err on
the side of public liberty.
A robust respect for the rightto keep and bear arms promotes
the moral temple, the moraltemper that befits a free
people.
Citizens who arm themselvesrecognize that their lives and
safety are not a gift from thegovernment, and that they are

(13:24):
claiming responsibility fortheir own freedom and security.
The importance of this attitudewas recognized almost two
centuries ago by Alexis deTocqueville in Democracy in
America.

(13:52):
The spirit of the SecondAmendment can help retard our
nation slide into the kind ofmoral and political stupor that
Tocqueville warned us against.
Instead of enacting useless andfrequently counterproductive
restrictions on the rights oflaw-abiding citizens, Congress
could promote this spirit byexercising its almost plenary

(14:15):
authority over the militia.
During the founding period,virtually all able-bodied men
were automatically included inthe militia, and they were
required to undergo a modestamount of military training.
Under current law, the militiastill includes almost all
able-bodied men between the agesof 17 and 44, but the training

(14:38):
requirement has been abandoned.
Today, Congress could begin byremoving the outdated exemption
for women.
Next, Congress could maketraining in the use of small
arms a condition of receiving ahigh school diploma or being
admitted to a college oruniversity.
This training would obviously beuseful if the militia were ever

(15:03):
summoned to deal with a suddenemergency.
And it would be useful to manyindividuals, especially women,
who would be less likely to fallvictim to violent crime.
But most important, training inthe use of small arms would help
instill a spirit ofself-confidence and
self-reliance in America'sfuture decision makers.

(15:24):
They're going to need thosequalities if they're going to be
genuinely responsible citizensrather than docile sheep or
whining victims of governmentalpettiness and indifference.

SPEAKER_01 (15:36):
Professor Lund, thank you so much.
I know we are going to doanother podcast episode on
Supreme Court cases.
So if that's something you'reinterested in, it will be
coming.
But Professor Lund, thank you somuch for taking the Second
Amendment and distilling it intosomething that is easily
understood by the generalpublic.
We appreciate it.

SPEAKER_00 (15:56):
Well, thank you very much for having me.
It's been a pleasure.