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we explore a provocative civic proposal: revive a modern militia ethos through universal small-arms competence, end outdated exclusions, and use training to foster self-reliance, especially for those most at risk.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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Chapters

• 1:32 Introducing Nelson Lund
• 2:27 Militia History And Founding Fears
• 5:01 Ratification Debates And Federal Limits
• 7:09 Reading The Second Amendment’s Text
• 9:58 Well-Regulated And Constitutional Structure
• 12:59 Modern Regulation And Incorporation
• 15:09 Natural Rights: Locke And Blackstone
• 18:06 Defining Permissible Regulations

Transcript

SPEAKER_01: 0:46

Today's guest is Nelson Lund, distinguished university professor at George Mason University's Anton and Scalia Law School. Professor Lund is the author of Rousseau's Rejuvenation of Political Philosophy, A New Introduction, and has written extensively on constitutional law, including topics like federalism, separation of powers, and the Second Amendment. He earned his PhD in political science from Harvard and his law degree from the University of Chicago, where he served as executive editor of the Law Review. His career includes service in the U.S. Department of Justice, the White House Counsel's Office, and clerkships with Justice Sandra Day O'Connor and Judge Patrick Hagenbotham. At George Mason, he teaches constitutional law and jurisprudence, and a scholarship continues to shape debates about the Constitution and American legal thought. Professor Lunn, thank you so much for being here today. I'm excited to talk about the Second Amendment. So the Second Amendment refers to, quote, a well-regulated militia. Did the founders think that people had the right to keep and bear arms only if they were enrolled in the militia?

SPEAKER_00: 1:54

No, they didn't. But we need a little background here. Starting in the 20th century, a lot of debate about, there was been a lot of debate about an individual right versus a state's right interpretation of the Second Amendment. But that question never came up during the founding period. And in order to see why not, and why the founders were motivated to adopt the Second Amendment, it's helpful to go back to England. There's a long history of conflict over the use of military forces in English history. And the condominium, so to speak, that was eventually arrived at in England allowed the Crown to raise armies only for foreign wars. And that had to be paid for by Parliament, which gave Parliament a lot of power over the crown. As for domestic, to preserve domestic tranquility and to repel sudden invasions, they came up with a cheaper alternative, which was the militia, which consisted of most able-bodied men who were required to undergo some unpaid military training and be available when the crown needed them to do things like suppress riots or that sort of thing, or a sudden invasion if that were to occur. Well, at the at this at the our constitutional convention, people were very aware of this, very aware of this history. And they had a kind of, I would say a kind of sentimental attachment to the militia, because it had been such an important part in preserving the rights of the people in England, and then again to some extent in the United States before we became a nation. So there was a very distrust of standing armies in peacetime, because the the, as we had seen in our colonial history, the the crown of this path to abuse the use of military force in dealing with civilian population. So there was kind of a, I would say a sentimental or kind of romantic attachment to the or emotional attachment to the militia. But during the Constitutional Convention, the framers decided to authorize standing armies in peacetime and create federal control over the state militias. And they did this because of their experience during the Revolutionary War, where the militia forces had proved to be just not a sufficient means of national defense. Now, during ratification, this was a major issue because the Anti-Federalists were very worried about oppression by a powerful new federal government. Nobody knew how the new federal government was actually going to operate, and people were afraid that it might usurp the rights of the states and oppress the people. Now, the Federalists argued that this wasn't a serious risk, in part because the American people were armed and they would be impossible to subdue through the kind of military force that the federal government would be able to raise at that time in our history. Now, the Second Amendment was completely uncontroversial because nobody argued that the federal government should have any power to disarm American citizens. Since the Bill of Rights applied only to the federal government, the states were left with their pre-existing authority to regulate guns and other weapons as they saw fit. Now, as it happened, the states imposed virtually no restrictions on the right to keep and bear arms at the time the Bill of Rights was adopted or for many years thereafter. The few regulations that existed applied almost exclusively to the misuse of weapons, not to their possession, not to their being carried around in public. Because there were no federal gun control laws like those that we have today, there was no reason for people to talk about whether the Second Amendment would allow Congress to adopt such laws.

SPEAKER_01: 6:13

So if the founders, you say it wasn't controversial, if they didn't discuss the issue, like where can we kind of look for the answer in all of this?

SPEAKER_00: 6:23

Well, I think the first step is where we should always begin with the Constitution, is to read the language very carefully, starting with the prefatory phrase about the militia, which says a well-regulated militia being necessary to the security of a free state. Grammatically, this phrase is an ablative or nominative absolute. Such grammatical constructions do not modify or limit anything in the operative clause. Typically, they explain the purpose of the statement in the operative clause. The real command of the Second Amendment comes in that operative clause, which says that the right of the people to keep and bear arms shall not be infringed. The right of the people is the same terminology used in the First and Fourth Amendments to adopt to identify a right that belongs to individuals, not to the government. Now, the next thing to look at is Article I of the Constitution. Section eight gives Congress almost plenary authority to regulate the militia. The Second Amendment does not take any of that authority away from Congress and give it to the states. Any such interpretation would have been, would have generated a lot of controversy, but that didn't happen.

SPEAKER_01: 7:43

So if the Second Amendment doesn't change the allocation of the authority over the militia, why does it talk about a militia at all?

SPEAKER_00: 7:52

Well, to answer this question, you have to recognize that the term well-regulated does not necessarily mean heavily regulated. It has a more general meaning, namely appropriately regulated. Something's well-regulated if it's appropriately regulated. Or to put it another way, it's not inappropriately regulated. And what the Second Amendment does is to forbid Congress to enact one specific category of inappropriate regulations, namely those that infringe on the right of the people to keep and bear arms. There was good reason to worry about this possibility. Under the broad authority given to Congress by the necessary and proper clause of Article I, Congress might have been tempted to seize people's weapons under the pretext of exercising its very broad authority to regulate the militia. So, for example, it might have said all arms shall be stored in government-controlled arsenals, and people are not allowed to keep their weapons at home that they'll need for militia duties. The Second Amendment simply says that this sort of thing is forbidden. By forbidding certain inappropriate regulations, the Second Amendment uh fosters a well-regulated militia.

SPEAKER_01: 9:08

Hasn't the world changed quite a bit since the 18th century? So how does that make it dangerous to leave guns completely unregulated?

SPEAKER_00: 9:20

Well, the world has changed for sure, but that doesn't need that doesn't mean we need to misinterpret the Second Amendment. First, recall that it originally applied only to the federal government. So the states were free to regulate weapons as they saw fit. It was only in the 20th century that the Supreme Court started applying some provisions of the Bill of Rights to the states. But in 1868, when that amendment was adopted, there was very little regulation of weapons, mostly just restrictions on concealed carry. It's true that various changes in society have now made significant gun control laws politically popular, which was not the case in 1791 or 1868. So we're now faced with questions about the constitutional limits of the government's regulatory authority that just didn't come up when the Second and 14th Amendments were adopted.

SPEAKER_01: 10:18

So how should we be thinking about those constitutional limits today?

SPEAKER_00: 10:23

I think the most important point to keep in mind is that the natural or inherent right of self-defense is at the very foundation, is at the very foundation of our political system. We can see that in the writings of John Locke, who was the true father of our Declaration of Independence. According to Locke, the natural law forbids us to harm other people and gives each of us the right to enforce that law by force if necessary. When we form a political society, we transfer that personal right of enforcement to the government, but we always retain the right of self-defense when the government is unable or unwilling to enforce the natural law. You can see this through an example. According to Locke, if someone steals your money, you ordinarily must rely on the government to punish the thief. But if someone threatens to kill you if you don't hand over your money, you have an immediate right to kill the robber. For the same reason, people always retain the right to resist a predatory government, including, if necessary, through a political revolution. The same principle was adopted by William Blackstone, the English jurist who was the leading authority on English law among founding Arab Americans. He said that the right to keep and bear arms was an indispensable barrier that protects the fundamental rights of personal security, personal liberty, and private property. Blackstone emphasized that the right to keep and bear arms is derived from the natural right of resistance and self-preservation when the laws of society are insufficient to restrain the violence of oppression. Consistent with Locke's view, Blackstone drew no distinction between oppression by the government and by oppression by criminals from whom the government is unable or unwilling to restrain. Now, naturally, Blackstone recognized that the government may regulate the possession and use of weapons in order to prevent criminals from violating our natural rights to life, liberty, and property. But in order to determine which regulations are permissible, we have to ask whether the regulation unduly compromises the absolutely fundamental right to self-defense. So, for example, a regulation that sets up security measures that stop everyone from bringing a gun onto an airplane actually enhances the protection for the right to life. But that's not true when the government declares various public places to be gun-free zones without the kind of security screening that we have at airports. This kind of rule simply creates an invitation for violent criminals because they can be sure that law-abiding people will be easy victims in a gun-free zone, so-called gun-free zone. It's no coincidence that a very high proportion of mass shootings occur in these so-called gun-free zones. A better name, I think, would be helpless victim zones. And these zones violate the principles on which the Second Amendment is based.

SPEAKER_01: 13:39

So obviously, we should be enforcing the Second Amendment because it's part of the Constitution. But when in doubt, should we err on the side of public safety then?

SPEAKER_00: 13:49

I would say that when in doubt, we should err on the side of public liberty. A robust respect for the right to keep and bear arms promotes the moral temple, the moral temper that befits a free people. Citizens who arm themselves recognize that their lives and safety are not a gift from the government, and that they are claiming responsibility for their own freedom and security. The importance of this attitude was recognized almost two centuries ago by Alexis de Tocqueville in Democracy in America. The spirit of the Second Amendment can help retard our nation slide into the kind of moral and political stupor that Tocqueville warned us against. Instead of enacting useless and frequently counterproductive restrictions on the rights of law-abiding citizens, Congress could promote this spirit by exercising its almost plenary authority over the militia. During the founding period, virtually all able-bodied men were automatically included in the militia, and they were required to undergo a modest amount of military training. Under current law, the militia still includes almost all able-bodied men between the ages of 17 and 44, but the training requirement has been abandoned. Today, Congress could begin by removing the outdated exemption for women. Next, Congress could make training in the use of small arms a condition of receiving a high school diploma or being admitted to a college or university. This training would obviously be useful if the militia were ever summoned to deal with a sudden emergency. And it would be useful to many individuals, especially women, who would be less likely to fall victim to violent crime. But most important, training in the use of small arms would help instill a spirit of self-confidence and self-reliance in America's future decision makers. They're going to need those qualities if they're going to be genuinely responsible citizens rather than docile sheep or whining victims of governmental pettiness and indifference.

SPEAKER_01: 16:23

Professor Lund, thank you so much. I know we are going to do another podcast episode on Supreme Court cases. So if that's something you're interested in, it will be coming. But Professor Lund, thank you so much for taking the Second Amendment and distilling it into something that is easily understood by the general public. We appreciate it.

SPEAKER_00: 16:42

Well, thank you very much for having me. It's been a pleasure.