The Forgotten Battle Before the Bill of Rights

How the First and Second Amendments Took Shape in the First Congress | Opinion by Alan J. Chwick, Paralegal

Sep 02, 2026

Before the First and Second Amendments became part of the Constitution in 1791, their ideas had already been debated for years. Their story runs from the Revolution through the Constitutional Convention and the state ratifying conventions that followed.

Americans who had just fought the Revolution faced a difficult problem: how could they create a national government strong enough to preserve the Union without giving it powers that might later be turned against the liberties the Revolution was supposed to secure?

The Constitution addressed that problem through enumerated powers, separation of powers, and federalism. Nevertheless, many Americans wanted liberties stated expressly, rather than left to inference from the structure of government.

The First Amendment dealt with religion, speech, press, assembly, and petition, and the Second addressed the right of the people to keep and bear arms and the role of a well-regulated militia in the security of a free state. Though these subjects were different, both amendments grew from the political experience of the Revolutionary generation. The Americans, as Colonials, had lived under harsh military authority, and they rebelled against a government they knew had exceeded its legitimate powers, and they remained wary of concentrated power. A Bill of Rights became part of the needed political settlement that helped secure acceptance of the new Constitution.

The Constitution was first written without a Bill of Rights. When the delegates met in Philadelphia in 1787, they were attempting to repair a national government that had proved inadequate under the Articles of Confederation. The Constitution they produced created a substantially stronger federal government.

Congress would possess taxing authority and power over commerce. The federal government would have executive and judicial branches and greater responsibility for national defense. Federalists regarded those powers as necessary if the Union was to survive. The opponents did not necessarily reject all of these powers, but their concern was what might happen after ratification, when the men who had written the Constitution were gone and later officials exercised the new government’s authority.

The Federalist response was that the new government could exercise only the powers delegated to it. Alexander Hamilton made this point forcefully in Federalist No. 84, as powers not granted to Congress could not simply be assumed. The same structural argument applied to matters such as establishing a national church or censoring newspapers. This argument, and its structural reasoning, by Hamilton was initially shared by James Madison. Separation of powers, elections, federalism, and the enumeration of federal powers were intended to provide safeguards against abuse.

The ratification debates, though, changed the practical question, as the critics repeatedly called for written guarantees, and a demand for a declaration of rights became impossible for the new government to ignore.

George Mason’s Virginia Model became an important advocate for a written declaration of rights. He had helped draft Virginia’s Declaration of Rights in 1776, which treated rights as inherent rather than as privileges granted by government. The Virginia declaration also addressed the militia, describing a “well regulated militia, composed of the body of the people, trained to arms” as the proper, natural, and safe defense of a free state.

Mason refused to sign the proposed Constitution because it contained no declaration of rights. His objection reflected a concern heard elsewhere during ratification: limits that seemed clear to the framers might be interpreted differently by future officials, and that concern helped shift the debate from outright acceptance or rejection toward the question of what amendments should accompany the new Constitution.

The state ratifications were proposing rights at their conventions, and these conventions were not merely occasions for recording votes. They were major forums for debating the powers and limits of the proposed federal government.

Pennsylvania, Massachusetts, Virginia, and New York conventions were especially important to the history of the First and Second Amendments. Their proposals were not identical, and they should not be treated as though they were, but taken together, they show a recurring concern about individual rights, standing armies, and the ability of the people to retain arms.

Pennsylvania ratified the Constitution in December 1787. Members of the minority opposed to ratification issued a detailed address that proposed, among other protections, a right to bear arms. The proposed language referred to the people’s right to bear arms for the defense of themselves, their state, or the United States, and also mentioned hunting. It reflected a broader concern that the federal government might eventually disarm the population.

Massachusetts presented a different example. During its ratification convention, a proposal was made that the Constitution not be construed to authorize Congress to prevent peaceable citizens from keeping their own arms. That proposal was defeated. It is important not to turn it into something it was not: it was debated, but it did not become Massachusetts’s formal ratification recommendation. Even so, its appearance in the debate shows that the question of arms possession was being discussed during the ratification struggle.

Virginia produced one of the most significant recommendations. Its proposed declaration stated that the people had a right to keep and bear arms and described a well-regulated militia composed of the body of the people trained to arms as the proper, natural, and safe defense of a free state. The wording is significant because it placed the right of the people and the militia in the same provision without making the two expressions identical.

New York followed with a similar course. Its proposed declaration protected the people’s right to keep and bear arms and described a well-regulated militia, including the body of the people capable of bearing arms, as the proper, natural, and safe defense of a free state. New York also expressed concern about standing armies and civilian control of the military.

These debates gave Madison and the First Congress a substantial body of proposed language to consider. The Second Amendment had identifiable roots in the ratification records.

James Madison reconsidered the Bill of Rights, as he had initially argued that a bill of rights was unnecessary. But by 1789, he had changed his position. His change was practical as well as political. The ratification struggle had demonstrated to him that many Americans wanted expressed guarantees, and he came to believe those concerns could be addressed without reopening the constitutional settlement.

In his June 1789 notes, he regarded the omission of a Bill of Rights as one of the objections most strongly urged by the Constitution’s critics and one that could be addressed without dismantling the constitutional system. He did not abandon the principle of limited federal power, but he concluded that written amendments could reinforce that principle and give the public greater confidence that the new government would respect the boundaries placed upon it.

On June 8, 1789, Madison introduced proposed amendments in the House of Representatives. His proposed arms provision was not identical to the Second Amendment that was eventually ratified. He proposed that the right of the people to keep and bear arms should not be infringed and referred to a well-armed and well-regulated militia as the best security of a free country. His proposal also contained a provision concerning persons religiously scrupulous of bearing arms. His proposed draft in June 1789 is not the language the states ultimately ratified. The House considered Madison’s proposals and passed a package of amendments. The Senate subsequently revised the package. Twelve amendments were ultimately sent to the states in 1789, and ten were ratified in 1791. The Second Amendment was thus the result of a legislative process. Madison supplied the initial proposal; the House and Senate altered it before the states considered the final version.

Madison’s proposal did lead to the final text, which is shorter and more precise than his original proposal: “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.” There are three particularly important features of the final wording. First, the amendment refers to “the people,” and not to “the militia.” Next, it identifies a right to “keep and bear Arms.” And lastly, it uses the words “shall not be infringed,” language of prohibition rather than permission.

The militia clause and the operative clause are related, but the text does not limit the right to militia members. The opening clause states why a well-regulated militia was considered necessary to a free state; the operative clause identifies the right protected by the amendment. That grammatical and historical relationship later became central to the Supreme Court’s interpretation of the amendment.

Madison’s proposal does raise a question, though: What does “Well Regulated” Mean? The phrase “well regulated” deserves particular care because modern readers can easily give the word “regulated” a meaning it did not necessarily carry in the eighteenth century.

In the Founding-era usage, “well regulated” described something that was properly ordered, disciplined, trained, or functioning as it should. The context in Virginia’s ratification proposal is instructive: the militia was described as being composed of the people and trained to arms.

None of this means the Founders opposed firearms regulation. They plainly did not. Colonial and early state governments adopted laws involving militia service, firearms, gunpowder, public safety, and military organization. The narrower constitutional question becomes whether a particular regulation is consistent with the right protected by the Second Amendment. The mere existence of firearms regulations in the Founding era does not, by itself, answer that question.

The Founding generation also viewed the militia very specifically. They did not understand the militia in the same way current Americans understand a modern military organization. The militia to them was closely associated with the able-bodied citizen population. And that understanding appears in state constitutional provisions and in the political writings of the period. Madison, in Federalist No. 46, discussed the advantage Americans possessed from being armed and connected.

This historical setting helps explain why the Second Amendment could mention both the militia and the people without making them synonymous. A militia made up from the population required an armed population. At the same time, the constitutional text protected the right of the people rather than creating a special privilege for a government military institution.

The modern Second Amendment doctrine has returned repeatedly to the historical material surrounding the amendment’s adoption. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the Second Amendment protects an individual right to possess a firearm for lawful purposes, including self-defense in the home. The Court examined the text and its historical setting rather than treating the militia clause as eliminating the operative right.

Next, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court addressed the application of the Second Amendment to the state and local governments and they held that the right recognized in Heller is incorporated through the Fourteenth Amendment.

And finally, as of this date, in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), the Court placed still greater emphasis on history and tradition. The Court rejected the use of means-end scrutiny as the ordinary method for resolving Second Amendment disputes and held that when the Constitution’s text covers an individual’s conduct, the government must demonstrate that its regulation is consistent with the Nation’s historical tradition of firearm regulation. This approach makes the Founding record especially important. The ratifying conventions, Madison’s proposal, congressional revisions, and early constitutional practice are not merely interesting background; they are part of the historical evidence used to understand the constitutional provision.

The broader constitutional structure points in the same direction. The First Amendment does not say that Congress creates freedom of speech. It says that Congress shall make no law abridging it. The Second Amendment does not say that government grants the people a right to possess arms. It states that the right of the people to keep and bear arms shall not be infringed. The Ninth Amendment cautions against denying rights retained by the people simply because other rights were enumerated. And the Tenth Amendment reserves powers not delegated to the United States to the states or the people. Together, these provisions reflect the Constitution’s broader concern with limiting governmental power.

The Founders did not assume that constitutional government would remain safe merely because the men who created it were virtuous. They attempted to establish rules that would continue to operate when political circumstances changed, and different people occupied positions of power. The ratification record does not provide a single sentence that resolves every modern controversy over firearms, but it does, however, establish the historical setting in which the Second Amendment was written. Simply stated: They fought a revolution. They were suspicious of standing armies. They associated the militia with the body of the people. Several state conventions proposed protection for the right to keep or bear arms. And their final wording deserves very close attention. “A well regulated Militia, being necessary to the security of a free State” describes a constitutional reason that “the right of the people to keep and bear Arms” identifies the protected right, and “shall not be infringed” establishes the restriction on government. This structure is the product of a political process extending from the Revolution through ratification and into the First Congress.

The debates over the Bill of Rights concerned the relationship between the new government and the people it was created to serve, and the First and Second Amendments are part of that settlement. The first protects the freedoms necessary for political and religious self-government. The second protects the people’s right to keep and bear arms while recognizing the importance of a well-regulated militia to the security of a free state. The Bill of Rights did not create the liberties claimed by Americans in 1791; it just placed specific constitutional restraints on a government whose powers had been the subject of intense debate.

Our Founders well understood that: Government changes, Political majorities change, Officials change, Constitutional controversies change, but the written Constitution remains the point of reference. History does not resolve every modern firearms dispute, but it does establish the setting in which the Second Amendment was written: The Second Amendment was adopted as a restriction on government power. It is a product of Americans who had experienced the consequences of unchecked governmental authority and who believed that a constitutional republic required more than good intentions. The Constitution is intended to provide enforceable limits.

Selected Sources

1. U.S. CONST. amends. I, II, IX, X.

2. U.S. CONST. art. I, § 8, cls. 15–16.

3. James Madison, Amendments to the Constitution, June 8, 1789, Annals of Congress.

4. Alexander Hamilton, The Federalist No. 84 (1788).

5. James Madison, The Federalist No. 46 (1788).

6. George Mason, Virginia Declaration of Rights (1776).

7. Declaration of Independence (1776).

8. Pennsylvania Minority Address, Dec. 18, 1787.

9. Massachusetts Ratifying Convention Proceedings, Feb. 6, 1788.

10. Virginia Ratifying Convention Proposed Declaration of Rights, June 27, 1788.

11. New York Ratifying Convention Proposed Declaration of Rights, July 26, 1788.

12. The Documentary History of the Ratification of the Constitution, vols. 8–10.

13. The Complete Anti-Federalist, Herbert J. Storing ed. (1981).

14. The Founders’ Constitution, Philip B. Kurland & Ralph Lerner eds. (1986).

15. William Blackstone, Commentaries on the Laws of England (1765–1769).

16. District of Columbia v. Heller, 554 U.S. 570 (2008).

17. McDonald v. City of Chicago, 561 U.S. 742 (2010).

18. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

ABOUT THE AUTHOR:

Alan J. Chwick, A.S., B.S., FL/NY/SC Paralegal, is known for his involvement in legal articles usually related to firearm regulations and for his contributions to discussions on firearm rights. Managing Coach (Ret.) of the Freeport NY Junior Marksmanship Club (FreeportJuniorClub.org). Escaped New York State to South Carolina and is an SC FFL & Gunsmith (Everything22andMore.com). AJChwick@iNCNF.org | TWITTER & TRUTHSOCIAL: @iNCNF

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