Constitution Society
1994 Stephen P. Halbrook

Copyright (c) 1994 Constitution Society. Permission is
granted to copy with attribution for noncommercial purposes.

There is considerable confusion about the legal theory
underlying the “right to keep and bear arms”. This is a
brief outline for a clarification of the discussion of this
issue.

(1) The Second Amendment to the U.S. Constitution does not
establish the right to keep and bear arms.None of the
provisions of the Constitution establish any “natural”
rights. They recognize such rights,but the repeal of
such provisions would not end such rights.Such rights
were considered by many of the Framers as obvious or
“self-evident”, but they were immersed in the prevail-
ing republican thought of the day, as expressed in the
writings of Locke, Montesquieu, Rousseau, Madison,
Hamilton, and others, which discussed “natural rights”
in some detail.Others argued that at least some of the
rights needed to be made explicit in the Bill of Rights
to avoid having future generations with less under-
standing of republican theory weaken in their defense
of those rights.That has turned out to have been a good
idea.

(2) The right to keep and bear arms is a natural right of
individuals under the theory of democratic government.
This was clearly the understanding and intent of the
Framers of the U.S. Constitution and was a long-estab-
lished principle of English common law at the time the
Constitution was adopted, which is considered to be a
part of constitutional law for purposes of interpreting
the written Constitution.

(3) What the Second Amendment also does is recognize the
right, power, and duty of able-bodied persons (origi-
nally males, but now females also) to organize into
militias and defend the state. It effectively recogniz-
es that all citizens have military and police powers,
and the “able-bodied” ones — the militia — also have
military and police duties, whether exercised in an
organized manner or individually in a crisis. “Able-
bodied” is a term of art established by English common
law at the time the Constitution was adopted, and is
the only qualification besides citizenship on what
constitutes the “militia”. While not well defined in
modern terms, it is somewhat broader than just able-
“bodied”: implicit is also “able-minded” and
“virtuous”. In other words, persons might be excluded
who were physically able to bear arms but who were
mentally or morally defective. Defense of the “state”
includes self-defense and defense of one’s family and
friends who are, after all, part of the state, but by
establishing the defense of the state as primary a
basis is laid for requiring a citizen to risk or sacri-
fice his life in defense of the state and is thus a
qualification on the implicit right of self-defense,
which is considered to prevail in situations in which
self-sacrifice is not called for.

(4) The U.S. Constitution does not adequately define
“arms”. When it was adopted, “arms” included muzzle-
loaded muskets and pistols, swords, knives, bows with
arrows, and spears. However, a common-law definition
would be “light infantry weapons which can be carried
and used, together with ammunition, by a single mili-
tiaman, functionally equivalent to those commonly used
by infantrymen in land warfare.” That certainly in-
cludes modern rifles and handguns, full-auto machine
guns and shotguns, grenade and grenade launchers,
flares, smoke, tear gas, incendiary rounds, and anti-
tank weapons, but not heavy artillery, rockets, or
bombs, or lethal chemical, biological or nuclear wea-
pons. Somewhere in between we need to draw the line.
The standard has to be that “arms” includes weapons
which would enable citizens to effectively resist
government tyranny, but the precise line will be drawn
politically rather than constitutionally. The rule
should be that “arms” includes all light infantry weapo
ns that do not cause mass destruction. If we follow the
rule that personal rights should be interpreted broadly
and governmental powers narrowly, which – was the in-
tention of the Framers, instead of the reverse, then
“arms” must be interpreted broadly.

(5) The right to keep and bear arms does indeed extend to
the states. As do the other rights recognized by other
Amendments, and as reinforced by the Fourteenth Amend-
ment. It is not just a restriction on the powers of
the central government. On the other hand, the citizens
of a state can adopt a constitution that might restrict
the exercise of such rights by delegating the power to
do so to the state government. However, if the restric-
tion of natural rights is unduly burdensome on those
rights, then such a provision would be incompatible
with the U.S. Constitution, its guarantee of the
rights, and its guarantee that all states have a
“republican” form of government – which such restric-
tions would compromise.

(6) The legal basis for a government not infringing on the
right to keep and bear arms is not constitutional
provisions like the Second Amendment, but that the
power to do so is not one of the enumerated powers
delegated to the government, whether Union or State.
That delegation must be explicit as pertains to arms.
They can’t be regulated on the basis of general powers
to tax or to regulate commerce. Arms have a special
status under constitutional law. Some State constitu-
tions may delegate such powers to the State government.
The U.S. Constitution does not delegate such powers to
the Union government. No powers are delegated to gov-
ernment by the preamble to a constitution, which is
only a statement of purpose, only by provisions in the
body of the document and its amendments.

(7) The legal basis on which the states can regulate arms
is in those situations in which they conflict with
property rights. It is a fundamental principal in law
that the owners or managers of real property have the
power to regulate who may enter their premises, and to
set conditions upon their entry. That includes public
property. Citizens have a right to keep and bear arms
— on their own property or property they control —
but not on someone else’s property without his permis-
sion.

(8) In other words, citizens have a right to keep and bear
arms in those places and situations where they have a
right to be, unless such rights are disabled by due
process of law. Fundamental natural rights can never be
lost, as contractual rights can be, only the exercise
of those rights restricted or “disabled”, to use the
legal term. The distinction is very important. Natural
rights are those which the individual brings with him
when he enters into the social contract, and reclaims
if the social contract is broken. The right to keep and
bear arms is such a natural right, as is the right of
free speech, religious belief, and privacy. The alter-
native is a contractual right created by a contract,
such as the social contract. The right to vote or to be
judged by a jury of one’s peers are examples of rights
created by the social contract, albeit important ones
that are also constitutionally protected. Because they
are constitutionally protected, it is only proper to
speak of them as disabled, rather than lost, so long as
the subject remains a citizen or natural person, de-
pending on whether it is a right of citizenship or
personhood.

(9) It is unconstitutional to “disable” any rights by
statute except one set: the rights of majority. The
disabilities of minority do not need to be established
by a court trial or hearing. However, they can be
removed sooner than they would be removed by constitu-
tion or statute, by reaching a certain age. This means
it is unconstitutional to disable the right to keep and
bear arms to a class of persons by statute, including
those, such as felons, who have been the subject of due
process on another issue, except through a proceeding
in which the court is explicitly petitioned to disable
them, the subject has an opportunity to argue to the
contrary, the petitioner has the burden of proof that
the subject if armed would be a threat to himself or
others, and the court grants that petition. Merely
being convicted of a crime, or declared mentally incom-
petent, is not sufficient if the language of the judge-
ment does not also explicitly disable the right to keep
and bear arms, or set restrictions on such right.

(10) “General police powers” is not a constitutional basis
for states or localities to regulate arms. “General
police powers” are the powers to use the means neces-
sary and sufficient to stop someone who threatens to
commit a major crime, or to arrest someone who has done
so. All citizens have such power. They differ from
regular, professional police only in that the regular
police also have “special police powers” in matters
such as minor offenses, and in that they outrank civil-
ians. Since citizens have general police powers, they
also have the right to such means as they require to
exercise such powers in situations in which they may be
called upon to do so. That includes arms.

(11) To be constitutional, state laws restricting the bear-
ing of arms must distinguish between public property,
private commercial property which serves the public and
which therefore confers certain rights to the public,
and other private property with no public access
rights. It is reasonable and constitutional to prohibit
persons from bearing arms onto purely private property
without notifying the owner or manager and obtaining
his or her permission, except over public easements,
such as sidewalks or the walkway from the street to the
front door. On the other hand, it would be an undue
burden on the right to bear arms to forbid persons from
traveling between places where they have a right to be,
and to bear arms while they do so, along public path-
ways or private easements, and using their own or a
public means of transportation. It may not, however, be
an undue burden to prohibit the bearing of arms onto
certain public property where persons do not have
unrestricted access, such as office buildings and
auditoriums, provided that authorities guarantee the
safety of persons who enter unarmed. Owners of commer-
cial property serving the public which confers some
rights of access to the public may prohibit the bearing
of arms by posting or giving a notice to that effect,
but lacking such notice, bearing arms onto the premises
would be permitted. The rule must be that laws must not
burden the right to bear arms except to the extent that
they would impose a greater burden on the right of
property owners to exclude persons bearing arms.

(12) The law must presume that places of business that cater
to arms, such as gun shops and shooting ranges, and
events such as gun shows, offer presumptive permission
to bear arms and that therefore it is not illegal to
bear them there or to travel to and from them.

(13) A carry permit system essentially is a removal of
restrictions against bearing arms on public and private
property unless there is an express prohibition against
doing so, either in the form of a posted sign or a
directive from the owner or his agent. The rationale
for issuing such permits is to equip persons of good
character to more effectively function as militiamen or
police in situations in which regular police are not
available or insufficient. That also includes self-
protection, but the key factor is the duty to perform
police duties as necessary. There also needs to be
explicit statutory protection of the state or other
permit issuing authority against criminal or civil
liability for any acts done by the permit holder. One
kind of carry permit is that which is one of the
“special police powers” of regular law-enforcement
officers, which allows them to carry anywhere, even
against the express wishes of a property owner.

(14) With the high levels of crime we now endure, the only
effective way to extend police protection to a level
that might deter crime is to recruit a substantial
proportion of the public to go armed, by issuing them
carry permits, offering them police training, and
organizing them into a network of militia units closely
coordinated with regular law enforcement agencies. It
is likely that as many as 25% of the adult public could
serve in this way on a regular basis, and another 25%
on an occasional basis, and that if they did, we might
expect it to have a significant positive impact on
crime. Some such citizens might even be granted higher
police rank, and perform regular police duties on a
part-time basis. Such involvement of the public in law
enforcement would also have other benefits: breaking
down the social and psychological barriers that now
separate the regular police from civilians, and deter-
ring some of the abuses of authority that police have
sometimes fallen into.

(15) That the militia should be “well-regulated” is not a
basis for restricting the keeping or bearing of arms.
The term originally meant “self-regulated” and militias
could be independent of state or national authority if
not called up by such authority. Militia members may
be required to carry certain standard arms during
formations, but they cannot be forbidden from carrying
additional arms of their own unless doing so would
impair normal militia operations. State-appointed
officers may direct when, where and in what manner
members of the militia are to train and perform their
duties, but may not forbid them to meet on their own.

(16) The Union government has the power, under the U.S.
Constitution, to regulate imports and interstate com-
merce in arms, but the Framers would not agree with how
the “interstate commerce” clause (Art. 1, Sec. 8) of
the Constitution has been broadly interpreted to in-
clude regulation of manufacture, possession, and local
sales and use of items. A strict constitutional inter-
pretation requires that the Union government has au-
thority only over transactions that cross state lines,
and not over actions or transactions that occur within
state borders, even if they involve items that may
someday cross state borders or may have once done so.
If we want the Union government to have such authority,
and a good case can be made for that, then the U.S.
Constitution needs to be amended to delegate that
authority to it.

(17) The Union government also has excise taxing power, but
since arms have special status under the Constitution,
no tax may be levied that imposes an undue burden on
the right to keep and bear arms. Rights are more funda-
mental than taxing powers, particularly since the right
to keep and bear arms is recognized in an amendment
which supersedes any prior provisions that conflict
with it, which includes all taxing powers except the
income tax (which does not provide a basis for taxing
arms). Arms may be taxed as general merchandise is,
such as with a sales tax, but any tax law which speci-
fies arms for special taxes, other than reasonable use
fees for public services related to them, must be
considered unconstitutional. That would include taxes
on ammunition and the ingredients to make it. The
analogy is to taxes on newsprint, which may be taxed
like other merchandise, but not in a way that would
impose an undue burden on the right of a free press.

(18) This means that no government has the power, unless
that power is specifically granted to it under its
constitution, to prohibit any person from manufacturing
or possessing any gun or ammunition for it on his own
premises or where he has a right to be, or against
using it in a safe and responsible manner, or against
selling or giving it to another person within the
borders of a state.

(19) Since the common law prevailing at the time the Consti-
tution was adopted defined “militia” to consist of
“able-bodied” citizens, including persons younger than
the usual age of majority, any law restricting the
possession, sale or gift of guns or ammunition to
persons under the age of majority or any other particu-
lar age, or to minors (since persons under the age of
majority may have their disabilities of minority re-
moved by a court), is also unconstitutional, unless the
constitution explicitly includes a disability of the
right to keep and bear arms among the disabilities of
minority. The proper test for being “able-bodied” must
involve meeting certain standards that are independent
of age, such as skill, judgement, and level of maturi-
ty. It is possible for persons to be “able-bodied” at
quite a young age, and the law must recognize that
competence where it exists. All citizens above the age
of majority would have to be presumed able-bodied
unless they or the state petitioned a court to rule
otherwise and it granted the petition. However, it
would be constitutional to require a reasonable test of
competence to citizens below the age of majority, and
to issue credentials to those qualifying which they
would be required to show when answering calls of the
militia or, if the right to keep and bear arms were
included among the rights disabled by minority, when
bearing arms. Early removal of the disabilities of
minority would then also remove the disabilities of the
right to keep and bear arms.

(20) The “full faith and credit” clause of the U.S. Consti-
tution requires that persons issued a carry permit by
one state must have that permit recognized in other
states. This suggests a uniform standard for qualifying
persons for issuance.

REFERENCE: Stephen P. Halbrook, That Every Man be
Armed,
available from The Independent Institute, 134 98th
Av, Oakland, CA 94603, 510/568-6047.