The Right to Keep and Bear Arms ? Report of the Senate Subcommitee on the Constitution, 1982. Contai

March 1st, 2012

Note: This Senate Subcommittee Report was taken from
aphrodite.nectar.cs.cmu.edu in /pub/firearms/politics/rkba as rkba82. It
was cleaned up by Richard Bash <[email protected]> and further
reformatted by Jon Roland to make it more usable in email and newsgroup
postings. A more complete version is planned.

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THE RIGHT TO KEEP AND BEAR ARMS

________

REPORT
of the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

NINETY-SEVENTH CONGRESS
SECOND SESSION

97th Congress
2d Session

COMMITTEE PRINT

<Emblem: Eagle with shield clenching shock & arrows>

FEBRUARY, 1982

Printed for the use of the Committee on the Judiciary

____

U.S. GOVERNMENT PRINTING OFFICE

88-618 O

WASHINGTON : 1982

For sale by the Superintendent of Documents,
U. S. Government Printing Office
Washington, D.C. 20402

COMMITTEE ON THE JUDICIARY

STROM THURMOND, South Carolina, Chairman

CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona
JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania

Vinton DeVane Lide, Chief Counsel
Quentin Crommelin, Jr., Staff Director

SUBCOMMITTEE ON THE CONSTITUTION

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina DENNIS DeCONCINI, Arizona
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont

Stephen J. Markman, Chief Counsel and Staff Director
Randall Rader, General Counsel
Peter E. Ornsby, Counsel
Robert Feidler, Minority Counsel

CONTENTS
_________

Preface, by Senator Orrin G. Hatch, chairman, U.S. Senate
Judiciary Committee, Subcommittee on the Constitution, from the
State of Utah

Preface by Senator Dennis DeConcini, ranking minority member,
U.S. Senate Judiciary Committee, Subcommittee on the
Constitution, from the State of Arizona

History: Second amendment right to “keep and bear arms”

Appendix: Case law

Enforcement of Federal firearms laws from the perspective of the
Second Amendment

Other views of the second amendment:

Does the Second Amendment mean what it says?, by David J.
Steinberg, executive director, National Council for a
Responsible Firearms policy.

National Coalition to ban handguns, statement on the Second
Amendment, by Michael K. Beard, executive director, and Samuel
S. Fields, legal affairs coordinator, National Coalition to Ban
Handguns.

Historical Bases of the Right to Keep and Bear Arms, by David
T. Hardy, partner in the Law Firm Sando & Hardy.

The Fourteenth Amendment and the Right to Keep and Bear Arms:
The Intent of the Framers, by Stephen P. Halbrook, PH. D.,
attorney and counselor at law.

The Second Amendment to the United States Constitution
Guarantees an Individual Right To Keep and Bear Arms, by James
J. Featherstone, Esq., General Counsel, Richard E. Gardiner,
Esq., and Robert Dowlut, Esq., Office of the General Counsel,
National Rifle Association of America.

The Right to Bear Arms: The Development of the American
Experience, by John Levin, assistant professor, Chicago-Kent
College of Law, Illinois Institute of Technology.

Standing Armies and Armed Citizens: An Historical Analysis of
The Second Amendment, by Roy G. Weatherup, J.D., 1972 Standford
University; member of the California Bar.

Gun control legislation, by the Committee on Federal
Legislation, the Association of the Bar of the City of New
York.

PREFACE

________

“To preserve liberty, it is essential that the whole
body of the people always possess arms, and be taught
alike, especially when young, how to use them.”
(Richard Henry Lee, Virginia delegate to the
Continental Congress, initiator of the Declaration of
Independence, and member of the first Senate, which
passed the Bill of Rights.)

“The great object is that every man be armed …
Everyone who is able may have a gun.” (Patrick Henry,
in the Virginia Convention on the ratification of the
Constitution.)

“The advantage of being armed … the Americans
possess over the people of all other nations …
Notwithstanding the military establishments in the
several Kingdoms of Europe, which are carried as far
as the public resources will bear, the governments
are afraid to trust the people with arms.” (James
Madison, author of the Bill of Rights, in his
Federalist Paper No. 46.)

“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.” (Second
Amendment to the Constitution.)

In my studies as an attorney and as a United States Senator, I have
constantly been amazed by the indifference or even hostility shown the
Second Amendment by courts, legislatures, and commentators. James
Madison would be startled to hear that his recognition of a right to
keep and bear arms, which passed the House by a voice vote without
objection and hardly a debate, has since been construed in but a single,
and most ambiguous, Supreme Court decision, whereas his proposals for
freedom of religion, which he made reluctantly out of fear that they
would be rejected or narrowed beyond use, and those for freedom of
assembly, which passed only after a lengthy and bitter debate, are the
subject of scores of detailed and favorable decisions. Thomas Jefferson,
who kept a veritable armory of pistols, rifles and shotguns at
Monticello, and advised his nephew to forsake other sports in favor of
hunting, would be astounded to hear supposed civil libertarians claim
firearm ownership should be restricted. Samuel Adams, a handgun owner
who pressed for an amendment stating that the “Constitution shall never
be construed … to prevent the people of the United States who are
peaceable citizens from keeping their own arms,” would be shocked to
hear that his native state today imposes a year’s sentence, without
probation or parole, for carrying a firearm without a police permit.

This is not to imply that courts have totally ignored the impact of the
Second Amendment in the Bill of Rights. No fewer than twenty-one
decisions by the courts of our states have recognized an individual
right to keep and bear arms, and a majority of these have not only
recognized the right but invalidated laws or regulations which abridged
it. Yet in all too many instances, courts or commentators have sought,
for reasons only tangentially related to constitutional history, to
construe this right out of existence. They argue that the Second
Amendment’s words “right of the people” mean “a right of the state” –
apparently overlooking the impact of those same words when used in the
First and Fourth Amendments. The “right of the people” to assemble or to
be free from unreasonable searches and seizures is not contested as an
individual guarantee. Still they ignore consistency and claim that the
right to “bear arms” relates only to military uses. This not only
violates a consistent constitutional reading of “right of the people”
but also ignores that the second amendment protects a right to “keep”
arms. These commentators contend instead that the amendment’s preamble
regarding the necessity of a “well regulated militia … to a free
state” means that the right to keep and bear arms applies only to a
National Guard. Such a reading fails to note that the Framers used the
term “militia” to relate to every citizen capable of bearing arms, and
that Congress has established the present National Guard under its power
to raise armies, expressly stating that it was not doing so under its
power to organize and arm the militia.

When the first Congress convened for the purpose of drafting a Bill of
Rights, it delegated the task to James Madison. Madison did not write
upon a blank tablet. Instead, he obtained a pamphlet listing the State
proposals for a bill of rights and sought to produce a briefer version
incorporating all the vital proposals of these. His purpose was to
incorporate, not distinguish by technical changes, proposals such as
that of the Pennsylvania minority, Sam Adams, or the New Hampshire
delegates. Madison proposed among other rights that “That right of the
people to keep and bear arms shall not be infringed; a well armed and
well regulated militia being the best security of a free country; but no
person religiously scrupulous of bearing arms shall be compelled to
render military service in person.” In the House, this was initially
modified so that the militia clause came before the proposal recognizing
the right. The proposals for the Bill of Rights were then trimmed in the
interests of brevity. The conscientious objector clause was removed
following objections by Elbridge Gerry, who complained that future
Congresses might abuse the exemption to excuse everyone from military
service.

The proposal finally passed the House in its present form: “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.” In
this form it was submitted into the Senate, which passed it the
following day. The Senate in the process indicated its intent that the
right be an individual one, for private purposes, by rejecting an
amendment which would have limited the keeping and bearing of arms to
bearing “For the common defense”.

The earliest American constitutional commentators concurred in giving
this broad reading to the amendment. When St. George Tucker, later Chief
Justice of the Virginia Supreme Court, in 1803 published an edition of
Blackstone annotated to American law, he followed Blackstone’s citation
of the right of the subject “of having arms suitable to their condition
and degree, and such as are allowed by law” with a citation to the
Second Amendment, “And this without any qualification as to their
condition or degree, as is the case in the British government.” William
Rawle’s “View of the Constitution” published in Philadelphia in 1825
noted that under the Second Amendment: “The prohibition is general. No
clause in the Constitution could by a rule of construction be conceived
to give to Congress a power to disarm the people. Such a flagitious
attempt could only be made under some general pretense by a state
legislature. But if in blind pursuit of inordinate power, either should
attempt it, this amendment may be appealed to as a restraint on both.”
The Jefferson papers in the Library of Congress show that both Tucker
and Rawle were friends of, and corresponded with, Thomas Jefferson.
Their views are those of contemporaries of Jefferson, Madison and
others, and are entitled to special weight. A few years later, Joseph
Story in his “Commentaries on the Constitution” considered the right to
keep and bear arms as “the palladium of the liberties of the republic”,
which deterred tyranny and enabled the citizenry at large to overthrow
it should it come to pass.

Subsequent legislation in the second Congress likewise supports the
interpretation of the Second Amendment that creates an individual right.
In the Militia Act of 1792, the second Congress defined “militia of the
United States” to include almost every free adult male in the United
States. These persons were obligated by law to possess a firearm and a
minimum supply of ammunition and military equipment. This statute,
incidentally, remained in effect into the early years of the present
century as a legal requirement of gun ownership for most of the
population of the United States. There can be little doubt from this
that when the Congress and the people spoke of a “militia”, they had
reference to the traditional concept of the entire populace capable of
bearing arms, and not to any formal group such as what is today called
the National Guard. The purpose was to create an armed citizenry, which
the political theorists at the time considered essential to ward off
tyranny. From this militia, appropriate measures might create a “well
regulated militia” of individuals trained in their duties and
responsibilities as citizens and owners of firearms.

If gun laws in fact worked, the sponsors of this type of legislation
should have no difficulty drawing upon long lists of examples of crime
rates reduced by such legislation. That they cannot do so after a
century and a half of trying — that they must sweep under the rug the
southern attempts at gun control in the 1870-1910 period, the
northeastern attempts in the 1920-1939 period, the attempts at both
Federal and State levels in 1965-1976 — establishes the repeated,
complete and inevitable failure of gun laws to control serious crime.

Immediately upon assuming chairmanship of the Subcommittee on the
Constitution, I sponsored the report which follows as an effort to
study, rather than ignore, the history of the controversy over the right
to keep and bear arms. Utilizing the research capabilities of the
Subcommittee on the Constitution, the resources of the Library of
Congress, and the assistance of constitutional scholars such as Mary
Karen Jolly, Steven Halbrook, and David T. Hardy, the subcommittee has
managed to uncover information on the right to keep and bear arms which
documents quite clearly its status as a major individual right of
American citizens. We did not guess at the purpose of the British 1689
Declaration of Rights; we located the Journals of the House of Commons
and private notes of the Declaration’s sponsors, now dead for two
centuries. We did not make suppositions as to colonial interpretations
of that Declaration’s right to keep and bear arms; we examined colonial
newspapers which discussed it. We did not speculate as to the intent of
the framers of the second amendment; we examined James Madison’s drafts
for it, his handwritten outlines of speeches upon the Bill of Rights,
and discussions of the second amendment by early scholars who were
personal friends of Madison, Jefferson, and Washington and wrote while
these still lived. What the Subcommittee on the Constitution uncovered
was clear — and long-lost — proof that the second amendment to our
Constitution was intended as an individual right of the American citizen
to keep and carry arms in a peaceful manner, for protection of himself,
his family, and his freedoms. The summary of our research and findings
forms the first portion of this report.

In the interest of fairness and the presentation of a complete picture,
we also invited groups which were likely to oppose this recognition of
freedoms to submit their views. The statements of two associations who
replied are reproduced here following the report of the Subcommittee.
The Subcommittee also invited statements by Messrs. Halbrook and Hardy,
and by the National Rifle Association, whose statements likewise follow
our report.

[Above-mentioned "private" views not included]

When I became chairman of the Subcommittee on the Constitution, I hoped
that I would be able to assist in the protection of the constitutional
rights of American citizens, rights which have too often been eroded in
the belief that government could be relied upon for quick solutions to
difficult problems.

Both as an American citizen and as a United States Senator I repudiate
this view. I likewise repudiate the approach of those who believe to
solve American problems you simple become something other than American.
To my mind, the uniqueness of our free institutions, the fact that an
American citizen can boast freedoms unknown in any other land, is all
the more reason to resist any erosion of our individual rights. When our
ancestors forged a land “conceived in liberty”, they did so with musket
and rifle. When they reacted to attempts to dissolve their free
institutions, and established their identity as a free nation, they did
so as a nation of armed freemen. When they sought to record forever a
guarantee of their rights, they devoted one full amendment out of ten to
nothing but the protection of their right to keep and bear arms against
government interference. Under my chairmanship the Subcommittee on the
Constitution will concern itself with a proper recognition of, and
respect for, this right most valued by free men.

Orrin G. Hatch, Chairman,
Subcommittee on the Constitution.
January 20, 1982.

The right to bear arms is a tradition with deep roots in American
society. Thomas Jefferson proposed that “no free man shall ever be
debarred the use of arms,” and Samuel Adams called for an amendment
banning any law “to prevent the people of the United States who are
peaceable citizens from keeping their own arms.” The Constitution of the
State of Arizona, for example, recognized the “right of an individual
citizen to bear arms in defense of himself or the State.”

Even though the tradition has deep roots, its application to modern
America is the subject of intense controversy. Indeed, it is a
controversy into which the Congress is beginning, once again, to immerse
itself. I have personally been disappointed that so important an issue
should have generally been so thinly researched and so minimally debated
both in Congress and the courts. Our Supreme Court has but once touched
on its meaning at the Federal level and that decision, now nearly a
half-century old, is so ambiguous that any school of thought can find
some support in it. All Supreme Court decisions on the second
amendment’s application to the States came in the last century, when
constitutional law was far different that it is today. As ranking
minority member of the Subcommittee on the Constitution, I, therefore,
welcome the effort which led to this report — a report based not only
upon the independent research of the subcommittee staff, but also upon
full and fair presentation of the cases by all interested groups and
individual scholars.

I personally believe that it is necessary for the Congress to amend the
Gun Control Act of 1968. I welcome the opportunity to introduce this
discussion of how best these amendments might be made.

The Constitution subcommittee staff has prepared this monograph bringing
together proponents of both sides of the debate over the 1968 Act. I
believe that the statements contained herein present the arguments
fairly and thoroughly. I commend Senator Hatch, chairman of the
subcommittee, for having this excellent reference work prepared. I am
sure that it will be of great assistance to the Congress as it debates
the second amendment and considers legislation to amend the Gun Control
Act.

Dennis DeConcini,
Ranking Minority Member,
Subcommittee on the Constitution.
January 20, 1982.

HISTORY: SECOND AMENDMENT RIGHT TO “KEEP AND BEAR ARMS”

The right to keep and bear arms as a part of English and American law
antedates not only the Constitution, but also the discovery of firearms.
Under the laws of Alfred the Great, whose reign began in 872 A.D., all
English citizens from the nobility to the peasants were obliged to
privately purchase weapons and be available for military duty. [1] This
was in sharp contrast to the feudal system as it evolved in Europe,
under which armament and military duties were concentrated in the
nobility. The body of armed citizens were known as the “fyrd”.

While a great many of the Saxon rights were abridged following the
Norman conquest, the right and duty of arms possession was retained.
Under the Assize of Arms of 1181, “the whole community of freemen”
between the ages of 15 and 40 were required by law to possess certain
arms, which were arranged in proportion to their possessions. [2] They
were required twice a year to demonstrate to Royal Officials that they
were appropriately armed. In 1253, another Assize of Arms expanded the
duty of armament to include not only freeman, but also villeins, who
were the English equivalent of serfs. Now all “citizens, burgesses, free
tenants, villeins and others from 15 to 60 years of age” were obliged to
be armed. [3] While on the Continent the villeins were regarded as
little more than animals hungering for rebellion, the English legal
system not only permitted, but affirmatively required them, to be armed.

The thirteenth century saw further definitions of this right as the long
bow, a formidable armor-piercing weapon, became increasingly the
mainstay of British national policy. In 1285, Edward I commanded that
all persons comply with the earlier Assizes and added that “anyone else
who can afford them shall keep bows and arrows”. [4] The right of
armament was subject only to narrow limitations. In 1279, it was ordered
that those appearing in Parliament or other public assemblies “shall
come without all force and armor, well and peaceably”. [5] In 1328, the
statute of Northampton ordered that no one use their arms in “affray of
the peace, nor to go nor ride armed by day or by night in fairs,
markets, nor in the presence of the justices or other ministers”. [6]
English courts construed this ban consistently with the general right of
private armament as applying only to wearing of arms “accompanied with
such circumstances as are apt to terrify the people”. [7] In 1369, the
King ordered that the sheriffs of London require all citizens “at
leisure time on holidays” to “use in their recreation bowes and arrows”
and to stop all other games which might distract them from this
practice. [8]

The Tudor kings experimented with limits upon specialized weapons –
mainly crossbows and the then-new firearms. These measures were not
intended to disarm the citizenry, but on the contrary to prevent their
being diverted from longbow practice by sport with other weapons which
were considered less effective. Even these narrow measures were
shortlived. In 1503, Henry VII limited shooting (but not possession) of
crossbows to those with land worth 200 marks annual rental, but provided
an exception for those who “shote owt of a howse for the lawefull defens
of the same”. [9] In 1511, Henry VIII increased the property requirement
to 300 marks. He also expanded the requirement of longbow ownership,
requiring all citizens to “use and exercyse shootyng in longbowes, and
also have a bowe and arrowes contynually” in the house. [10] Fathers
were required by law to purchase bows and arrows for their sons between
the age of 7 and 14 and to train them in longbow use.

In 1514 the ban on crossbows was extended to include firearms. [11] But
in 1533, Henry reduced the property qualification to 100 pounds per
year; in 1541 he limited it to possession of small firearms (“of the
length of one hole yard” for some firearms and “thre quarters of a
yarde” for others) [12] and eventually he repealed the entire statute by
proclamation. [13] The later Tudor monarchs continued the system and
Elizabeth added to it by creating what came to be known as “train
bands”, selected portions of the citizenry chosen for special training.
These trained bands were distinguished from the “militia”, which term
was first used during the Spanish Armada crisis to designate the entire
of the armed citizenry. [14]

The militia continued to be a pivotal force in the English political
system. The British historian Charles Oman considers the existence of
the armed citizenry to be a major reason for the moderation of
monarchical rule in Great Britain; “More than once he [Henry VIII] had
to restrain himself, when he discovered that the general feeling of his
subjects was against him. … His ‘gentlemen pensioners’ and his yeomen
of the guard were but a handful, and bills or bows were in every farm
and cottage”. [15]

When civil war broke out in 1642, the critical issue was whether the
King or Parliament had the right to control the militia. [16] The
aftermath of the civil war saw England in temporary control of a
military government, which repeatedly dissolved Parliament and
authorized its officers to “search for, and seize all arms” owned by
Catholics, opponents of the government, “or any other person whom the
commissioners had judged dangerous to the peace of this Commonwealth”.
[17]

The military government ended with the restoration of Charles II.
Charles in turn opened his reign with a variety of repressive
legislation, expanding the definition of treason, establishing press
censorship and ordering his supporters to form their own troops, “the
officers to be numerous, disaffected persons watched and not allowed to
assemble, and their arms seized”. [18] In 1662, a Militia Act was
enacted empowering officials “to search for and seize all arms in the
custody or possession of any person or persons whom the said lieutenants
or any two or more of their deputies shall judge dangerous to the peace
of the kingdom”. [19] Gunsmiths were ordered to deliver to the
government lists of all purchasers. [20] These confiscations were
continued under James II, who directed them particularly against the
Irish population: “Although the country was infested by predatory bands,
a Protestant gentleman could scarcely obtain permission to keep a brace
of pistols.” [21] In 1668, the government of James was overturned in a
peaceful uprising which came to be known as “The Glorious Revolution”.
Parliament resolved that James had abdicated and promulgated a
Declaration of Rights, later enacted as the Bill of Rights. Before
coronation, his successor William of Orange, was required to swear to
respect these rights. The debates in the House of Commons over this
Declaration of Rights focused largely upon the disarmament under the
1662 Militia Act. One member complained that “an act of Parliament was
made to disarm all Englishmen, who the lieutenant should suspect, by day
or night, by force or otherwise — this was done in Ireland for the sake
of putting arms into Irish hands.” The speech of another is summarized
as “militia bill — power to disarm all England — now done in Ireland.”
A third complained “Arbitrary power exercised by the ministry. …
Militia — imprisoning with reason; disarming — himself disarmed.” Yet
another summarized his complaints “Militia Act — an abominable thing to
disarm the nation. …” [22]

The Bill of Rights, as drafted in the House of Commons, simply provided
that “the acts concerning the militia are grievous to the subject” and
that “it is necessary for the public Safety that the Subjects, which are
Protestants, should provide and keep arms for the common defense; And
that the Arms which have been seized, and taken from them, be restored.”
[23] The House of Lords changed this to make it a more positive
declaration of an individual right under English law: “That the subjects
which are Protestant may have arms for their defense suitable to their
conditions and as allowed by law.” [24] The only limitation was on
ownership by Catholics, who at that time composed only a few percent of
the British population and were subject to a wide variety of punitive
legislation. The Parliament subsequently made clear what it meant by
“suitable to their conditions and as allowed by law”. The poorer
citizens had been restricted from owning firearms, as well as traps and
other commodities useful for hunting, by the 1671 Game Act. Following
the Bill of Rights, Parliament reenacted that statute, leaving its
operative parts unchanged with one exception — which removed the word
“guns” from the list of items forbidden to the poorer citizens. [25] The
right to keep and bear arms would henceforth belong to all English
subjects, rich and poor alike.

In the colonies, availability of hunting and need for defense led to
armament statues comparable to those of the early Saxon times. In 1623,
Virginia forbade its colonists to travel unless they were “well armed”;
in 1631 it required colonists to engage in target practice on Sunday and
to “bring their peeces to church.” [26] In 1658 it required every
householder to have a functioning firearm within his house and in 1673
its laws provided that a citizen who claimed he was too poor to purchase
a firearm would have one purchased for him by the government, which
would then require him to pay a reasonable price when able to do so.
[27] In Massachusetts, the first session of the legislature ordered that
not only freemen but also indentured servants own firearms and in 1644
it imposed a stern 6 shilling fine upon any citizen who was not armed.
[28]

When the British government began to increase its military presence in
the colonies in the mid-eighteenth century, Massachusetts responded by
calling upon its citizens to arm themselves in defense. One colonial
newspaper argued that it was impossible to complain that his act was
illegal since they were “British subjects, to whom the privilege of
possessing arms is expressly recognized by the Bill of Rights” while
another argued that this “is a natural right which the people have
reserved to themselves, confirmed by the Bill of Rights, to keep arms
for their own defense”. [29] The newspaper cited Blackstone’s
commentaries on the laws of England, which had listed the “having and
using arms for self preservation and defense” among the “absolute rights
of individuals.” The colonists felt they had an absolute right at common
law to own firearms.

Together with freedom of the press, the right to keep and bear arms
became on of the individual rights most prized by the colonists. When
British troops seized a militia arsenal in September, 1774, and
incorrect rumors that colonists has been killed spread though
Massachusetts, 60,000 citizens took up arms. [30] A few months later,
when Patrick Henry delivered his famed “Give me liberty or give me
death” speech, he spoke in support of a proposition “that a well
regulated militia, composed of gentlemen and freemen, is the natural
strength and only security of a free government. …” Throughout the
following revolution, formal and informal units of armed citizens
obstructed British communication, cut off foraging parties, and harassed
the thinly stretched regular forces. When seven states adopted state
“bills of rights” following the Declaration of Independence, each of
those bills of rights provided either for protection of the concept of a
militia or for an express right to keep and bear arms. [31]

Following the revolution but previous to the adoption of the
Constitution, debates over militia proposals occupied a large part of
the policital[[sic]] scene. A variety of plans were put forth by figures
ranging from George Washington to Baron von Steuben. [32] All of the
proposals called for a general duty of all citizens to be armed,
although some proposals (most notably von Steuben’s) also emphasized a
“select militia” which would be paid for its services and given special
training. In this respect, this “select militia” was the successor of
the “trained bands” and the predecessor of what is today the “national
guard”. In the debates over the Constitution, von Steuben’s proposals
were criticized as undemocratic. In Connecticut one writer complained of
a proposal that “this looks too much like Baron von Steuben’s militia,
by which a standing army was meant and intended.” [33] In Pennsylvania,
a delegate argued “Congress may give us a select militia which will, in
fact, be a standing army — or Congress, afraid of a general militia,
may say there will be no militia at all. When a select militia is
formed, the people in general may be disarmed.” [34] Richard Henry Lee,
in his widely read pamphlet “Letters from the Federal Farmer to the
Republican” worried that the people might be disarmed “by modelling the
militia. Should one fifth or one eighth part of the people capable of
bearing arms be made into a select militia, as has been proposed, and
those the young and ardent parts of the community, possessed of little
or no property, the former will answer all the purposes of an army,
while the latter will be defenseless.” He proposed that “the
Constitution ought to secure a genuine, and guard against a select
militia,” adding that “to preserve liberty, it is essential that the
whole body of the people always possess arms and be taught alike,
especially when young, how to use them.” [35]

The suspicion of select militia units expressed in these passages is a
clear indication that the framers of the Constitution did not seek to
guarantee a State right to maintain formed groups similar to the
National Guard, but rather to protect the right of individual citizens
to keep and bear arms. Lee, in particular, sat in the Senate which
approved the Bill of Rights. He would hardly have meant the second
amendment to apply only to the select militias he so feared and
disliked.

Other figures of the period were of like mind. In the Virginia
convention, George Mason, drafter of the Virginia Bill of Rights,
accused the British of having plotted “to disarm the people — that was
the best and most effective way to enslave them”, while Patrick Henry
observed that “The great object is that every man be armed” and
“everyone who is able may have a gun”. [36]

Nor were the anti-federalists, to whom we owe credit for a Bill of
Rights, alone on this account. Federalist arguments also provide a
source of support for an individual rights view. Their arguments in
favor of the proposed Constitution also relied heavily upon universal
armament. The proposed Constitution had been heavily criticized for its
failure to ban or even limit standing armies. Unable to deny this
omission, the Constitution’s supporters frequently argued to the people
that their universal armament of Americans made such limitations
unnecessary. A pamphlet written by Noah Webster, aimed at swaying
Pennsylvania toward ratification, observed

Before a standing army can rule, the people must be
disarmed; as they are in almost every kingdom in
Europe. The supreme power in America cannot enforce
unjust laws by the sword, because the whole body of
the people are armed, and constitute a force superior
to any band of regular troops that can be, on any
pretense, raised in the United States. [37]

In the Massachusetts convention, Sedgwick echoed the same thought,
rhetorically asking if an oppressive army could be formed or “if raised,
whether they could subdue a Nation of Freeman, who know how to prize
liberty, and who have arms in their hands?” [38] In Federalist Paper 46,
Madison, later author of the Second Amendment, mentioned “The advantage
of being armed, which the Americans possess over the people of all other
countries” and that “notwithstanding the military establishments in the
several kingdoms of Europe, which are carried as far as the public
resources will bear, the governments are afraid to trust the people with
arms.”

A third and even more compelling case for an individual rights
perspective on the Second Amendment comes from the State demands for a
bill of rights. Numerous state ratifications called for adoption of a
Bill of Rights as a part of the Constitution. The first such call came
from a group of Pennsylvania delegates. Their proposals, which were not
adopted but had a critical effect on future debates, proposed among
other rights that “the people have a right to bear arms for the defense
of themselves and their own state, or the United States, or for the
purpose of killing game; and no law shall be passed for disarming the
people or any or them, unless for crimes committed, or a real danger of
public injury from individuals.” [39] In Massachusetts, Sam Adams
unsuccessfully pushed for a ratification conditioned on adoption of a
Bill of Rights, beginning with a guarantee “That the said Constitution
shall never be construed to authorize Congress to infringe the just
liberty of the press or the rights of conscience; or to prevent the
people of the United States who are peaceable citizens from keeping
their own arms. …” [40] When New Hampshire gave the Constitution the
ninth vote needed for its passing into effect, it called for adoption of
a Bill of Rights which included the provision that “Congress shall never
disarm any citizen unless such as are or have been in actual rebellion”.
[41] Virginia and North Carolina thereafter called for a provision “that
the people have the right to keep and bear arms; 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.” [42]

“The right of the people to keep and bear arms shall
not be infringed; a well armed and well regulated
militia being the best security of a free country;
but no person religiously scrupulous of bearing arms
shall be compelled to render military service in
person.” [43]

In the House, this was initially modified so that the militia clause
came before the proposal recognizing the right. The proposals for the
Bill of Rights were then trimmed in the interests of brevity. The
conscientious objector clause was removed following objections by
Elbridge Gerry, who complained that future Congresses might abuse the
exemption for the scrupulous to excuse everyone from militia service.

The prohibition is general. No clause in the
Constitution could by a rule of construction be
conceived to give to Congress a power to disarm the
people. Such a flagitious attempt could only be made
under some general pretense by a state legislature.
But if in blind pursuit of inordinate power, either
should attempt it, this amendment may be appealed to
as a restraint on both.” [45]

The Jefferson papers in the Library of Congress show that both Tucker
and Rawle were friends of, and corresponded with Thomas Jefferson. This
suggests that their assessment, as contemporaries of the Constitution’s
drafters, should be afforded special consideration.

Later commentators agreed with Tucker and Rawle. For instance, Joseph
Story in his “Commentaries on the Constitution” considered the right to
keep and bear arms as “the palladium of the liberties of the republic”,
which deterred tyranny and enabled the citizenry at large to overthrow
it should it come to pass. [46]

Subsequent legislation in the Second Congress likewise supports the
interpretation of the second amendment that creates an individual right.
In the Militia Act of 1792, the second Congress defined “militia of the
United States” to include almost every free adult male in the United
States. These persons were obliged by law to possess a firearm and a
minimum supply of ammunition and military equipment. [47] This statute,
incidentally remained in effect into the early years of the present
century as a legal requirement of gun ownership for most of the
population of the United States. There can be little doubt from this
that when the Congress and the people spoke of a “militia”, they had
reference to the traditional concept of the entire populace capable of
bearing arms, and not to any formal group such as what is today called
the National Guard. The purpose was to create an armed citizenry, such
as the political theorists at the time considered essential to ward off
tyranny. From this militia, appropriate measures might create a “well
regulated militia” of individuals trained in their duties and
responsibilities as citizens and owners of firearms.

The Second Amendment as such was rarely litigated prior to the passage
of the Fourteenth Amendment. Prior to that time, most courts accepted
that the commands of the federal Bill of Rights did not apply to the
states. Since there was no federal firearms legislation at this time,
there was no legislation which was directly subject to the Second
Amendment, if the accepted interpretations were followed. However, a
broad variety of state legislation was struck down under state
guarantees of the right to keep and bear arms and even in a few cases,
under the Second Amendment, when it came before courts which considered
the federal protections applicable to the states. Kentucky in 1813
enacted the first carrying concealed weapon statute in the United
States; in 1822 the Kentucky Court of Appeals struck down the law as a
violation of the state constitutional protection of the right to keep
and bear arms; “And can there be entertained a reasonable doubt but that
the provisions of that act import a restraint on the right of the
citizen to bear arms? The court apprehends it not. The right existed at
the adoption of the Constitution; it then had no limit short of the
moral power of the citizens to exercise it, and in fact consisted of
nothing else but the liberty of the citizen to bear arms.” [48] On the
other hand, a similar measure was sustained in Indiana, not upon the
grounds that a right to keep and bear arms did not apply, but rather
upon the notion that a statute banning only concealed carrying still
permitted the carrying of arms and merely regulated one possible way of
carrying them. [49] A few years later, the Supreme Court of Alabama
upheld a similar statute but added “We do not desire to be understood as
maintaining, that in regulating the manner of wearing arms, the
legislature has no other limit than its own discretion. A statute which,
under the pretense of regulation, amounts to a destruction of that
right, or which requires arms to be so borne as to render them wholly
useless for the purpose of defense, would be clearly unconstitutional.”
[50] When the Arkansas Supreme Court in 1842 upheld a carrying concealed
weapons statute, the chief justice explained that the statute would not
“detract anything from the power of the people to defend their free
state and the established institutions of the country. It prohibits only
the wearing of certain arms concealed. This is simply a regulation as to
the manner of bearing such arms as are specified”, while the dissenting
justice proclaimed “I deny that any just or free government upon earth
has the power to disarm its citizens. [51]

Sometimes courts went farther. When in 1837, Georgia totally banned the
sale of pistols (excepting the larger pistols “known and used as
horsemen’s pistols”) and other weapons, the Georgia Supreme Court in
Nunn v. State held the statute unconstitutional under the Second
Amendment to the federal Constitution. The court held that the Bill of
Rights protected natural rights which were fully as capable of
infringement by states as by the federal government and that the Second
Amendment provided “the right of the whole people, old and young, men,
women, and boys, and not militia only, to keep and bear arms of every
description, and not merely such as are used by the militia, shall not
be infringed, curtailed, or broken in on, in the slightest degree; and
all this for the important end to be attained: the rearing up and
qualifying of a well regulated militia, so vitally necessary to the
security of a free state.” [52] Prior to the Civil War, the Supreme
Court of the United States likewise indicated that the privileges of
citizenship included the individual right to own and carry firearms. In
the notorious Dred Scott case, the court held that black Americans were
not citizens and could not be made such by any state. This decision,
which by striking down the Missouri Compromise did so much to bring on
the Civil War, listed what the Supreme Court considered the rights of
American citizens by way of illustrating what rights would have to be
given to black Americans if the Court were to recognize them as full
fledged citizens:

It would give to persons of the negro race, who are
recognized as citizens in any one state of the Union,
the right to enter every other state, whenever they
pleased. … and it would give them full liberty of
speech in public and in private upon all subjects
upon which its own citizens might meet; to hold
public meetings upon political affairs, and to keep
and carry arms wherever they went. [53]

Following the Civil War, the legislative efforts which gave us three
amendments to the Constitution and our earliest civil rights acts
likewise recognized the right to keep and bear arms as an existing
constitutional right of the individual citizen and as a right
specifically singled out as one protected by the civil rights acts and
by the Fourteenth Amendment to the Constitution, against infringement by
state authorities. Much of the reconstruction effort in the South had
been hinged upon the creation of “black militias” composed of the armed
and newly freed blacks, officered largely by black veterans of the Union
Army. In the months after the Civil War, the existing southern
governments struck at these units with the enactment of “black codes”
which either outlawed gun ownership by blacks entirely, or imposed
permit systems for them, and permitted the confiscation of firearms
owned by blacks. When the Civil Rights Act of 1866 was debated members
both of the Senate and the House referred to the disarmament of blacks
as a major consideration. [54] Senator Trumbull cited provisions
outlawing ownership of arms by blacks as among those which the Civil
Rights Act would prevent; [55] Senator Sulsbury complained on the other
hand that if the act were to be passed it would prevent his own state
from enforcing a law banning gun ownership by individual free blacks.
[56] Similar arguments were advanced during the debates over the
“anti-KKK act”; its sponsor at one point explained that a section making
it a federal crime to deprive a person of “arms or weapons he may have
in his house or possession for the defense of his person, family or
property” was “intended to enforce the well-known constitutional
provisions guaranteeing the right in the citizen to ‘keep and bear
arms’.” [57] Likewise, the debates over the Fourteenth Amendment
Congress frequently referred to the Second Amendment as one of the
rights which it intended to guarantee against state action. [58]

Following adoption of the Fourteenth Amendment, however, the Supreme
Court held that that Amendment’s prohibition against states depriving
any persons of their federal “privileges and immunities” was to be given
a narrow construction. In particular, the “privileges and immunities”
under the Constitution would refer only to those rights which were not
felt to exist as a process of natural right, but which were created
solely by the Constitution. These might refer to rights such as voting
in federal elections and of interstate travel, which would clearly not
exist except by virtue of the existence of a federal government and
which could not be said to be “natural rights”. [59] This paradoxically
meant that the rights which most persons would accept as the most
important — those flowing from concepts of natural justice — were
devalued at the expense of more technical rights. Thus when individuals
were charged with having deprived black citizens of their right to
freedom of assembly and to keep and bear arms, by violently breaking up
a peaceable assembly of black citizens, the Supreme Court in United
States v. Cruikshank [60] held that no indictment could be properly
brought since the right “of bearing arms for a lawful purpose” is “not a
right granted by the Constitution. Neither is it in any manner dependent
upon that instrument for its existence.” Nor, in the view of the Court,
was the right to peacefully assemble a right protected by the Fourteenth
Amendment: “The right of the people peaceably to assemble for lawful
purposes existed long before the adoption of the Constitution of the
United States. In fact it is and has always been one of the attributes
of citizenship under a free government. … It was not, therefore, a
right granted to the people by the Constitution.” Thus the very
importance of the rights protected by the First and Second Amendment was
used as the basis for the argument that they did not apply to the states
under the Fourteenth Amendment. In later opinions, chiefly Presser v.
Illinois [61] and Miller v. Texas, [62] the Supreme Court adhered to the
view. Cruikshank has clearly been superseded by twentieth century
opinions which hold that portions of the Bill of Rights — and in
particular the right to assembly with which Cruikshank dealt in addition
to the Second Amendment — are binding upon the state governments. Given
the legislative history of the Civil Rights Acts and the Fourteenth
Amendment, and the more expanded views of incorporation which have
become accepted in our own century, it is clear that the right to keep
and bear arms was meant to be and should be protected under the civil
rights statutes and the Fourteenth Amendment against infringement by
officials acting under color of state law.

Within our own century, the only occasion upon which the Second
Amendment has reached the Supreme Court came in United States v. Miller.
[63] There, a prosecution for carrying a sawed off shotgun was dismissed
before trial on Second Amendment grounds. In doing so, the court took no
evidence as to the nature of the firearm or indeed any other factual
matter. The Supreme Court reversed on procedural grounds, holding that
the trial court could not take judicial notice of the relationship
between a firearm and the Second Amendment, but must receive some manner
of evidence. It did not formulate a test nor state precisely what
relationship might be required. The court’s statement that the amendment
was adopted “to assure the continuation and render possible the
effectiveness of such [militia] forces” and “must be interpreted and
applied with that end in view”, when combined with the court’s statement
that all constitutional sources “show plainly enough that the militia
comprised all males physically capable of acting in concert for the
common defense. … these men were expected to appear bearing arms
supplied by themselves and of the kind in common use at the time,” [64]
suggests that at the very least private ownership by a person capable of
self defense and using an ordinary privately owned firearm must be
protected by the Second Amendment. What the Court did not do in Miller
is even more striking: It did not suggest that the lower court take
evidence on whether Miller belonged to the National Guard or a similar
group. The hearing was to be on the nature of the firearm, not on the
nature of its use; nor is there a single suggestion that National Guard
status is relevant to the case.

The Second Amendment right to keep and bear arms therefore, is a right
of the individual citizen to privately possess and carry in a peaceful
manner firearms and similar arms. Such an “individual rights”
interpretation is in full accord with the history of the right to keep
and bear arms, as previously discussed. It is moreover in accord with
contemporaneous statements and formulations of the right by such
founders of this nation as Thomas Jefferson and Samuel Adams, and
accurately reflects the majority of the proposals which led up to the
Bill of Rights itself. A number of state constitutions, adopted prior to
or contemporaneously with the federal Constitution and Bill of Rights,
similarly provided for a right of the people to keep and bear arms. If
in fact this language creates a right protecting the states only, there
might be a reason for it to be inserted in the federal Constitution but
no reason for it to be inserted in state constitutions. State bills of
rights necessarily protect only against action by the state, and by
definition a state cannot infringe its own rights; to attempt to protect
a right belonging to the state be inserting it in a limitation of the
state’s own powers would create an absurdity. The fact that the
contemporaries of the framers did insert these words into several state
constitutions would indicate clearly that they viewed the right as
belonging to the individual citizen, thereby making it a right which
could be infringed either by state or federal government and which must
be protected against infringement by both.

Finally, the individual rights interpretation gives full meaning to the
words chosen by the first Congress to reflect the right to keep and bear
arms. The framers of the Bill of Rights consistently used the words
“right of the people” to reflect individual rights — as when these
words were used to recognize the “right of the people” to peaceably
assemble, and the “right of the people” against unreasonable searches
and seizures. They distinguished between the rights of the people and of
the state in the Tenth Amendment. As discussed earlier, the “militia”
itself referred to a concept of a universally armed people, not to any
specifically organized unit. When the framers referred to the equivalent
of our National Guard, they uniformly used the term “select militia” and
distinguished this from “militia”. Indeed, the debates over the
Constitution constantly referred to organized militia units as a threat
to freedom comparable to that of a standing army, and stressed that such
organized units did not constitute, and indeed were philosophically
opposed to, the concept of a militia.

That the National Guard is not the “Militia” referred to in the second
amendment is even clearer today. Congress has organized the National
Guard under its power to “raise and support armies” and not its power to
“Provide for organizing, arming and disciplining the Militia”. [65] This
Congress chose to do in the interests of organizing reserve military
units which were not limited in deployment by the strictures of our
power over the constitutional militia, which can be called forth only
“to execute the laws of the Union, suppress insurrections and repel
invasions.” The modern National Guard was specifically intended to avoid
status as the constitutional militia, a distinction recognized by 10
U.S.C. Sec 311(a).

The conclusion is thus inescapable that the history, concept, and
wording of the second amendment to the Constitution of the United
States, as well as its interpretation by every major commentator and
court in the first half-century after its ratification, indicates that
what is protected is an individual right of a private citizen to own and
carry firearms in a peaceful manner.

REFERENCES

1. Charles Hollister, Anglo-Saxon Military Institutions 11-42 (Oxford
University Press 1962); Francis Grose, Military Antiquities Respecting a
History of the British Army, Vol I at 1-2 (London, 1812)

2. Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal History
of Medieval England 273 (2d. ed. New York 1980)

3. J. J. Bagley and P. B. Rowley, A Documentary History of England
1066-1540, Vol 1 at 155-56 (New York 1965)

4. Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley,
supra at 158.

5. 7 Ed. I c. 2 (1279).

6. Statute of Northampton (2 Edw. III c. 3).

7. Rex v. Knight, 90 Eng Rep. 330; 87 Eng Rep. 75 (King’s Bench, 1686).

8. E. G. Heath, The Grey Goose Wing 109 (London, 1971).

9. 19 Hen. VII c. 4 (1503).

10. 3 Hen. VIII c. 13 (1511).

11. 64 Hen. VIII c. 13 (1514).

12. 33 Hen. VIII c. 6 (1514).

13. Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979).

14. Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968).

15. Charles Oman, A History of the Art of War in the Sixteenth Century
288 (New York, 1937).

16. William Blackstone, Commentaries, Vol. 2 at 412 (St. George Tucker,
ed., Philadelphia 1803).

17. “An Act for Settling the Militia,” Ordinances and Acts of the
Interregnum, Vol. 2 1320 (London, HMSO 1911).

18. 8 Calendar of State Papers (Domestic), Charles II, No 188, p. 150.

19. 14 Car. II c. 3 (1662).

20. Joyce Malcolm, Disarmed: The Loss of the Right to Bear Arms in
Restoration England, at 11 (Mary Ingraham Bunting Institute, Radcliffe
College 1980).

21. Thomas Macaulay, The History of England from the Accession of
Charles II, Vol. II at 137 (London, 1856).

22. Phillip, Earl of Hardwicke, Miscellaneous State Papers from 1501-
1726, vol. 2 at 407-17 (London, 1778).

23. J. R. Western, Monarchy and Revolution: The English State in the
1680′s, at 339 (Totowa, N.J., 1972)

24. Journal of the House of Commons from December 26, 1688, to October
26, 1693, at 29. (London, 1742). The Bill of Rights was ultimately
enacted in this form. 1 Gul. and Mar., Sess. 2, c. 2 (1689)

25. Joyce Malcolm, supra, at 16.

26. William Hening, The Statutes at Large: Being a Collection of All the
Laws of Virginia from the First Session of the Legislature in 1619, at
pp. 127, 173- 74 (New York, 1823).

27. Id.

28. William Brigham, The Compact with the Charter and Laws of the Colony
of New Plymouth, 31, 76 (Boston, 1836).

29. Oliver Dickerson, ed., Boston Under Military Rule, 61, 79 (Boston,
1936).

30. Steven Patterson, Political Parties in Revolutionary Massachusetts,
at 103 (Univ. of Wisconsin Press, 1973).

31. See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965).

32. The most extensive studies of these militia proposals are John
McAuley Palmer, Washington, Lincoln, Wilson: Three War Statesmen (New
York, 1930); Frederick Stern, Citizen Army (New York, 1957); John Mahon,
The American Militia: Decade of Decision 1789-1800 (Univ of Florida,
1960).

33. Merrill Jensen, ed., The Documentary of History of the Ratification
of the Constitution, vol 3 at 378 (Madison, Wisc.).

34. Id., vol. 2 at 508.

35. Walter Bennett, ed., Letters from the Federal Farmer to the
Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975).

36. Debates and other Proceedings of the Convention of Virginia, …
taken in shorthand by David Robertson of Petersburg, at 271, 275 (2d ed.
Richmond, 1805).

37. Noah Webster, “An Examination into the Leading Principles of the
Federal Constitution …”, in Paul Ford, ed., Pamphlets on the
Constitution of the United States, at 56 (New York, 1888).

38. Jonathan Elliott, ed., Debates in the Several State Conventions on
the Adoption of the Federal Constitution, vol. 2 at 97 (2d ed., 1888).

39. Merrill Jensen, supra, vol. 2 at 597-98.

40. Debates and Proceedings in the Convention of the Com

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