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
February 1982
PREFACE
by
Sen. Orrin G. Hatch
Chairman, U.S. Senate Judiciary Committee, Subcommittee on the
Constitution, from the State of Utah
"To preserve liberty, it is essential that the
whole body of the people lways 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. 26.)
"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, ha 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
oarmory 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 the Congress has established the
present National Guard under its own 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 for the
preservation 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 by 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 Kaaren
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 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
while these still lived. What the Subcommittee on the Constitution
uncovered was clear--and longlost--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 form 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.
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 simply 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 governmental
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, recognizes 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
than 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
freemen, 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 obligated 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 des-
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 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 repeated 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 fro 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 know 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 without
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 statutes comparable to those of the
early Saxon times. In 1623, Virginia forbade its colonists to travel unless
the 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 have3 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 this 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 one of the individual rights most prized
by the colonists. When British troops seized a militia arsenal in September,
1774, and incorrect rumors that colonists had been killed spread through
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 political scene. A variety of plans were put forth by
figures ranging from George Washington to Baron von Steuben.[32] All 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 on 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 modeling 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 antifederalists, 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
the 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, Sedgewick
echoed the same thought, rhetorically asking an oppressive army could be
formed or "if raised, whether they could subdue a Nation of freemen, 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 of
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]
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, and the New
Hampshire delegates. Madison proposed among other rights that:
"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."[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 Eldridge Gerry, who complained that future Congresses might abuse the
exemption for the scrupulous to excuse everyone from military service.
The proposal finally passed the House in
its present form: "A well regulated militia, being necessary for 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 to 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."[44]
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 at tempt 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. 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 obligated 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 by 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 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 on 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 stat 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 'keep and bear arms'."[57] Likewise, in 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 by 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 the organized militia units as a threat
to freedom comparable to that of a standing army, and stressed that such
organized units did not constituted, 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 the 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 halfcentury 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 (2nd. ed. New York 1980).
3. J.J. Bagley and P.B. Rowley, A Documentary History of England 1066-1540,
Vol. I 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 (2nd 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 Calender 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 (University 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 miitia proposals are John Macauly
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 Bennet, 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 (2nd ed.
Richmond, 1805).
37. Noah Webster, "An Examination into the Leading Principles of the Federal
States, at 56 (New York, 1888).
38. Johnathan Elliott, ed., Debates in the Several State Conventions on the
Adoption of the Federal Constitution, vol. 2 at 97 (2nd ed., 1888).
39. Merril Jensen, supra, vol. 2 at 597-98.
40. Debates and Proceeding at the Convention of the Commonwealth of
Massachusetts, at 86-87 (Pierce & Hale, eds., Boston, 1850); 2 B. Schwartz,
the Bill of Rights 675 (1971).
41. Documents Illustrative of the Formation of the Union of the American
States, at 1026 (Washington, D.C.,GPO, 1927).
42. Id. at 1030.
43. Annals of Congress 434 (1789).
44. St. George Tucker, ed., Blackstone's Commentaries, Volume 1 at 143 n.
40, 41 (Philadelphia, 1803).
45. William Rawle, A View of the Constitution 125-6 (2nd ed., Philadelphia,
1803).
46. Joseph Story, Commentaries on the Constitution, vol. 2 at 746 (1833).
47. Act of May 8, 1792; Second Cong., First Session, ch. 33.
48. Bliss vs. Commonwealth, 12 Ken. (2 Litt.) 90,92 (1822)/
49. State v. Mitchell, (3 Black.) 229.
50. State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840).
51. State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas Constitutional
provision at issue was narrower than the second amendment, as it protected
keeping and bearing arms "for the common defense." Id. at 34.
52. Nunn v. State, 1 Ga. 243, 251 (1846).
53. Dred Scott v. Sanford, 60 U.S. 691, 705.
54. The most comprehensive work in this field of constitutional law is
Steven Halbrook, the Jurisprudence of the Second and Fourteenth Amendments
(Institute for Humane Studies, Menlo Park, California, 1979), reprinted in 4
George Mason L. Rev. 1 (1981).
55. Cong. Globe, 39th Congress, 1st Sess., pt.1, p. 474 (Jan. 29, 1866).
56. Id. at 478.
57. H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871).
58. See generally Halbrook, supra, at 42-62.
59. Slaughterhouse Cases, 83 U.S. 36 (L873).
60. United States v. Cruikshank, 92 U.S. 542 (1876).
61. Presser v. Illinois, 116 U.S. 252 (1886).
62. Miller v. Texas, 153 U.S. 535 (1894).
63. United States v. Miller, 307 U.S. 175 (1939).
64. Id. at 178, 179.
65. H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933).