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COMMITTEE ON THE JUDICIARY

      STROM THURMOND, South Carolina, Chairman

CHARLES McMATHIAS, 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

                        (II)

                  CONTENTS

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

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

History: Second amendment right to "keep and bear arms"...........1

Appendix: Case law...............................................14

Enforcement of Federal firearms laws from the perspective of the second
amendment..........................................19

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....................................24

  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......................................27

  Historical Bases of the Right to Keep and Bear Arms, by David T. Hardy,
partner in the Law Firm Sando & Hardy..........45

  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..........................68

  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. Gardner, Esq., and Robert Dowlut, Esq., Office of
the General Counsel, National Rifle Association of
America........................................................83

  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..............110

  Standing Armies and Armed Citizens: An Historical Analysis of The Second
Amendment, by Roy G. Weatherup, J.D., 1972 Stanford University; member of the
California Bar.............130

  Gun control legislation, by the Committee on Federal Legislation, the
Association of the Bar of the city of New
York...................................................171

                             (III)

[IV is blank]

                         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. 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, 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.

                          (V)

                            VI

  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.:" [sic] 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

                  VII

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 capa-

                  VII

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 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 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.   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 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, 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.
(IX) 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 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
                      (1)

                         2 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.[ll] 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".[l9] 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

                        3 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 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 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]

                        4   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 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 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 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

                        5 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 antifederalist, 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,
Sedgwick echoed the same thought, rhetorically asking if 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 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 antifederalist, 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, Sedgwick echoed the same thought,
rhetorically asking if 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 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 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".[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
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 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 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 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 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 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. 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, 1836). 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. Johnathan 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 Commonwealth of Massachusetts, at 86-87
(Peirce & 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 (2d 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 v.
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. Sandford, 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).

                   APPENDIX

                   CASE LAW

The United States Supreme Court has only three times commented upon the
meaning of the second amendment to our constitution. The first comment, in
Dred Scott, indicated strongly that the right to keep and bear arms was an
individual right; the Court noted that, were it to hold free blacks to be
entitled to equality of citizenship, they would be entitled to keep and carry
arms wherever they went. The second, in Miller, indicated that a court cannot
take judicial notice that a short-barrelled shotgun is covered by the second
amendment--but the Court did not indicate that National Guard status is in any
way required for protection by that amendment, and indeed defined "militia" to
include all citizens able to bear arms. The third, a footnote in Lewis v.
United States, indicated only that "these legislative restrictions on the use
of firearms"--a ban on possession by felons--were permissible. But since
felons may constitutionally be deprived of many of the rights of citizens,
including that of voting, this dicta reveals little. These three comments
constitute all significant explanations of the scope of the second amendment
advanced by our Supreme Court. The case of Adam v. Williams has been cited as
contrary to the principle that the second amendment is an individual right. In
fact, that reading of the opinion comes only in Justice Douglas's dissent from
the majority ruling of the Court.

  The appendix which follows represents a listing of twenty-one American
decisions, spanning the period from 1822 to 1981, which have analysed right to
keep and bear arms provisions in the light of statutes ranging from complete
bans on handgun sales to bans on carrying of weapons to regulation of carrying
by permit systems. Those decisions not only explained the nature of such a
right, but also struck down legislative restrictions as violative of it, are
designated by asterisks.

20th century cases

1. * State v. Blocker, 291 Or. 255,---P.2d---(1981). "The statute is written
as a total proscription of the mere possession of certain weapons, and that
mere possession, insofar as a billy is concerned, is constitutionally
protected."

  "In these circumstances, we conclude that it is proper for us to consider
defendant's 'overbreadth' attack to mean that the statute swept so broadly as
to infringe rights that it could not reach, which in this setting means the
right to possess arms guaranteed by  27." 2. *State v. Kessler, 289 Or. 359,
614 P.2d 94, at 95, at 98 (1980). "We are not unmindful that there is current
controversy over the wisdom of a right to bear arms, and that the original
motivations for such a provision might not seem compelling if debated as a new
issue. Our task, however, in construing a constitutional provision is to
respect the principles given the status of constitutional guarantees and
limitations by the drafters; it is not to abandon these principles when this
fits the needs of the moment."

  "Therefore, the term 'arms' as used by the drafters of the constitutions
probably was intended to include those weapons used by settlers for both
personal and military defense. The term 'arms' was not limited to firearms,
but included several handcarried weapons commonly used for defense. The term
'arms' would not have included cannon or other heavy ordnance not kept by
militiamen or private citizens."

  3. Motley v. Kellogg, 409 N.E.2d 1207, at 1210 (Ind. App. 1980) (motion to
transfer denied 1-27-1981). "[N]ot making applications available at the
chief's office effectively denied members of the community the opportunity to
obtain a gun permit and bear arms for their self-defense."

  4. Schubert v. DeBard, 398 N.E.2d 1339, at 1341 (Ind. App. 1980) (motion to
transfer denied 8-28-1980). "We think it clear that our constitution provides
our citizenry the right to bear arms for their self-defense."

  5. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App. 1975). "The pistols in
question are not contraband. * * * Under Art. I,  23, Mo. Const. 1945,
V.A.M.S., every citizen has the right to keep and bear arms in defense of his
home, person and property, with the limitation that this section shall not
justify the wearing of concealed arms."

  6. * City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745 (en banc
1972). "As an example, we note that this ordinance would prohibit gunsmiths,
pawnbrokers and sporting goods stores from carrying on a substantial part of
their business. Also, the ordinance appears to prohibit individuals from
transporting guns to and from such places of business. Furthermore, it makes
it unlawful for a person to possess a firearm in a vehicle or in a place of
business for the purpose of self-defense. Several of these activities are
constitutionally protected. Colo. Const. art. II, 13." 7. * City of Las Vegas
v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738 (N.M. App. 1971). "It is our
opinion that an ordinance may not deny the people the constitutionally
guaranteed right to bear arms, and to that extent the ordinance under
consideration is void."

  8. State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952). "The law of
this jurisdiction accords to the defendant the right to keep and bear arms and
to use same in defense of his own home his person and property."

  9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950). "The second
amendment to the constitution of the United States provides the right of the
people to keep and bear arms shall not be infringed. This, of course, does not
prevent the enactment of a law against carrying concealed weapons, but it does
indicate it should be kept in mind, in the construction of a statute of such
character, that it is aimed at persons of criminal instincts, and for the
prevention of crime, and not against use in the protection of person or
property."

10. *People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 246 (en banc 1936). "It
is equally clear that the act wholly disarms aliens for all purposes. The
state . . . cannot disarm any class of persons or deprive them of the right
guaranteed under section 13, article II of the Constitution, to bear arms in
defense of home, person and property. The guaranty thus extended is
meaningless if any person is denied the right to posses arms for such
protection."

  11. *Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d 678
(1928). "There is no qualifications of the prohibition against the carrying of
a pistol in the city ordinance before us but it is made unlawful 'to carry on
or about the person any pistol,' that is, any sort of pistol in any sort of
manner. * * * [W]e must accordingly hold the provision of this ordinance as to
the carrying of a pistol invalid."

  12. *People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922). "The
provision in the Constitution granting the right to all persons to bear arms
is a limitation upon the power of the Legislature to enact any law to the
contrary. The exercise of a right guaranteed by the Constitution cannot be
made subject to the will of the sheriff."

  13. *State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921). "We are of
the opinion, however, that 'pistol' ex vi termini is properly included within
the word 'arms,' and that the right to bear such arms cannot be infringed. The
historical use of pistols as 'arms' of offense and defense is beyond
controversy." "The maintenance of the right to bear arms is a most essential
one to every free people and should not be whittled down by technical
constructions."

  14. *State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903). "The people
of the state have a right to bear arms for the defense of themselves and the
state. *** The result is that Ordinance No. 10, so far as it relates to the
carrying of a pistol, is inconsistent with and repugnant to the Constitution
and the laws of the state, and it is therefore to that extent, void."

  15. *In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902). "The second
amendment to the federal constitution is in the following language: '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.' The
language of section 11, article I of the constitution of Idaho, is as follows:
'The people have the right to bear arms for their security and defense, but
the legislature shall regulate the exercise of this right by law.' Under these
constitutional provisions, the legislature has no power to prohibit a citizen
from bearing arms in any portion of the state of Idaho, whether within or
without the corporate limits of cities, towns, and villages."

l9th century cases

16. *Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878). "If
cowardly and dishonorable men sometimes shoot unarmed men with army pistols or
guns, the evil must be prevented by the penitentiary and gallows, and not by a
general deprivation of constitutional privilege."

  17. *Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878). "We believe
that portion of the act which provides that, in case of conviction, the
defendant shall forfeit to the county the weapon or weapons so found on or
about his person is not within the scope of legislative authority. * * * One
of his most sacred rights is that of having arms for his own defence and that
of the State. This right is one of the surest safeguards of liberty and
self-preservation."

  18. *Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871). "The
passage from Story shows clearly that this right was intended, as we have
maintained in this opinion, and was guaranteed to and to be exercised and
enjoyed by the citizen as such, and not by him as a soldier, or in defense
solely of his political rights."

  19. *Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846). " 'The right of the
people to bear arms shall not be infringed.' 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 such merely as are used by the militia,
shall not be infringed, curtailed, or broken in upon, in the smallest degree;
and all this for the important end to be attained: the rearing up and
qualifying a well-regulated militia, so vitally necessary to the security of a
free State."

  20. Simpson v. State, 13 Tenn. 356, at 359-60 (1833). "But suppose it to be
assumed on any ground, that our ancestors adopted and brought over with them
this English statute, [the statute of Northampton,] or portion of the common
law, our constitution has completely abrogated it; it says, 'that the freemen
of this State have a right to keep and bear arms for their common defence.'
Article II, sec. 26. * * * By this clause of the constitution, an express
power is given and secured to all the free citizens of the State to keep and
bear arms for their defence, without any qualification whatever as to their
kind or nature; and it is conceived, that it would be going much too far, to
impair by construction or abridgement a constitutional privilege, which is so
declared; neither, after so solumn an instrument hath said the people may
carry arms, can we be permitted to impute to the acts thus licensed, such a
necessarily consequent operation as terror to the people to be incurred
thereby; we must attribute to the framers of it, the absence of such a view."

  21. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec.
251 (1822). "For, in principle, there is no difference between a law
prohibiting the wearing concealed arms, and a law forbidding the wearing such
as are exposed; and if the former be unconstitutional, the latter must be so
likewise." "But it should not be forgotten, that it is not only a part of the
right that is secured by the constitution; it is the right entire and
complete, as it existed at the adoption of the constitution; and if any
portion of that right be impaired, immaterial how small the part may be, and
immaterial the order of time at which it be done it is equally forbidden by
the constitution."

The following represents a list of twelve scholarly articles which have dealt
with the subject of the right to keep and bear arms as reflected in the second
amendment to the Constitution of the United States. The scholars who have
undertaken this research range from professors of law, history and philosophy
to a United States Senator. All have concluded that the second amendment is an
individual right protecting American citizens in their peaceful use of
firearms.

                    BIBLIOGRAPHY

Hays, THE RIGHT TO BEAR ARMS, A STUDY IN JUDICIAL MISINTERPRETATION, 2 Wm. &
Mary L. R. 381(1960) Sprecher, THE LOST AMENDMENT, 51 Am. Bar Assn. J. 554 &
665 (2 parts) (1965) Comment, THE RIGHT TO KEEP AND BEAR ARMS; A NECESSARY
CONSTITUTIONAL GUARANTEE OR AN OUTMODED PROVISION OF THE BILL OF RIGHTS? 31
Albany L. R. 74 (1967) Levine & Saxe THE SECOND AMENDMENT: THE RIGHT TO BEAR
ARMS, 7 Houston L. R. 1 (1969) McClure, FIREARMS AND FEDERALISM, 7 Idaho L. R.
197 (1970) Hardy & Stompoly, OF ARMS AND THE LAW, 51 Chi.-Kent L. R. 62 (1974)
Weiss, A REPLY TO ADVOCATES OF GUN CONTROL LAW, 52 Jour. Urban Law 577 (1974)
Whisker, HISTORICAL DEVELOPMENT AND SUBSEQUENT EROSION OF THE RIGHT TO KEEP
AND BEAR ARMS, 78 W. Va. L. R. 171 (1976) Caplan, RESTORING THE BALANCE: THE
SECOND AMENDMENT REVISITED, 5 Fordham Urban L. J. 31 (1976) Caplan, HANDGUN
CONTROL: CONSTITUTIONAL OR UNCONSTITUTIONAL?, 10 N.C. Central L. J. 53 (1979)
Cantrell, THE RIGHT TO BEAR ARMS, 53 Wis. Bar Bull. 21 (Oct. 1980) Halbrook,
THE JURISPRUDENCE OF THE SECOND AND FOURTEENTH AMENDMENTS, 4 Geo. Mason L.
Rev. 1 (1981)

ENFORCEMENT OF FEDERAL FIREARMS LAWS FROM THE PERSPECTIVE OF THE SECOND
AMENDMENT

  Federal involvement in firearms possession and transfer was not significant
prior to 1934, when the National Firearms Act was adopted. The National
Firearms Act as adopted covered only fully automatic weapons (machine guns and
submachine guns) and rifles and shotguns whose barrel length or overall length
fell below certain limits. Since the Act was adopted under the revenue power,
sale of these firearms was not made subject to a ban or permit system.
Instead, each transfer was made subject to a $200 excise tax, which must be
paid prior to transfer; the identification of the parties to the transfer
indirectly accomplished a registration purpose.

  The 1934 Act was followed by the Federal Firearms Act of 1938, which placed
some limitations upon sale of ordinary firearms. Persons engaged in the
business of selling those firearms in interstate commerce were required to
obtain a Federal Firearms License, at an annual cost of $1, and to maintain
records of the name and address of persons to whom they sold firearms. Sales
to persons convicted of violent felonies were prohibited, as were interstate
shipments to persons who lacked the permit required by the law of their state.

  Thirty years after adoption of the Federal Firearms Act, the Gun Control Act
of 1968 worked a major revision of federal law. The Gun Control Act was
actually a composite of two statutes. The first of these, adopted as portions
of the Omnibus Crime and Safe Streets Act, imposed limitations upon imported
firearms, expanded the requirement of dealer licensing to cover anyone
"engaged in the business of dealing" in firearms, whether in interstate or
local commerce, and expanded the recordkeeping obligations for dealers. It
also imposed a variety of direct limitations upon sales of handguns. No
transfers were to be permitted between residents of different states (unless
the recipient was a federally licensed dealer), even where the transfer was by
gift rather than sale and even where the recipient was subject to no state law
which could have been evaded. The category of persons to whom dealers could
not sell was expanded to cover persons convicted of any felony (other than
certain business-related felonies such as antitrust violations), persons
subject to a mental commitment order or finding of mental incompetence,
persons who were users of marijuana and other drugs, and a number of other
categories. Another title of the Act defined persons who were banned from
possessing firearms. Paradoxically, these classes were not identical with the
list of classes prohibited from purchasing or receiving firearms.

  The Omnibus Crime and Safe Streets Act was passed on June 5, 1968, and set
to take effect in December of that year. Barely two weeks after its passage,
Senator Robert F. Kennedy was assassinated while campaigning for the
presidency. Less than a week after his death, the second bill which would form
part of the Gun Control Act of 1968 was introduced in the House. It was
reported out of Judiciary ten days later, out of Rules Committee two weeks
after that, and was on the floor barely a month after its introduction. The
second bill worked a variety of changes upon the original Gun Control Act.
Most significantly, it extended to rifles and shotguns the controls which had
been imposed solely on handguns, extended the class of persons prohibited from
possessing firearms to include those who were users of marijuana and certain
other drugs, expanded judicial review of dealer license revocations by
mandating a de novo hearing once an appeal was taken, and permitted interstate
sales of rifles and shotguns only where the parties resided in contiguous
states, both of which had enacted legislation permitting such sales. Similar
legislation was passed by the Senate and a conference of the Houses produced a
bill which was essentially a modification of the House statute. This became
law before the Omnibus Crime Control and Safe Streets Act, and was therefore
set for the same effective date.

  Enforcement of the 1968 Act was delegated to the Department of the Treasury,
which had been responsible for enforcing the earlier gun legislation. This
responsibility was in turn given to the Alcohol and Tobacco Tax Division of
the Internal Revenue Service. This division had traditionally devoted itself
to the pursuit of illegal producers of alcohol; at the time of enactment of
the Gun Control Act, only 8.3 percent of its arrests were for firearms
violations. Following enactment of the Gun Control Act the Alcohol and Tobacco
Tax Division was retitled the Alcohol, Tobacco and Firearms Division of the
IRS. By July, 1972 it had nearly doubled in size and became a complete
Treasury bureau under the name of Bureau of Alcohol, Tobacco and Firearms.

  The mid-1970's saw rapid increases in sugar prices, and these in turn drove
the bulk of the "moonshiners" out of business. Over 15,000 illegal
distilleries had been raided in 1956; but by 1976 this had fallen to a mere
609. The BATF thus began to devote the bulk of its efforts to the area of
firearms law enforcement.

  Complaints regarding the techniques used by the Bureau in an effort to
generate firearm cases led to hearings before the Subcommittee on Treasury,
Post Office, and General Appropriations of the Senate Appropriations Committee
in July 1979 and April 1980, and before the Subcommittee on the Constitution
of the Senate Judiciary Committee in October 1980. At these hearings evidence
was received from various citizens who had been charged by BATF, from experts
who had studied the BATF, and from officials of the Bureau itself.

  Based upon these hearings it is apparent that enforcement tactics made
possible by current federal firearms laws are constitutionally, legally, and
practically reprehensible. Although Congress adopted the Gun Control Act with
the primary object of limiting access of felons and high-risk groups to
firearms, the overbreadth of the law has led to neglect of precisely this area
of enforcement. For example the Subcommittee on the Constitution received
correspondence from two members of the Illinois Judiciary, dated in 1980,
indicating that they had been totally unable to persuade BATF to accept cases
against felons who were in possession of firearms including sawed-off
shotguns. The Bureau's own figures demonstrate that in recent years the
percentage of its arrests devoted to felons in possession and persons
knowingly selling to them have dropped from 14 percent down to 10 percent of
their firearms cases. To be sure, genuine criminals are sometimes prosecuted
under other sections of the law. Yet, subsequent to these hearings, BATF
stated that 55 percent of its gun law prosecutions overall involve persons
with no record of a felony conviction, and a third involve citizens with no
prior police contact at all.

  The Subcommittee received evidence that BATF has primarily devoted its
firearms enforcement efforts to the apprehension, upon technical malum
prohibitum charges, of individuals who lack all criminal intent and knowledge.
Agents anxious to generate an impressive arrest and gun confiscation quota
have repeatedly enticed gun collectors into making a small number of
sales--often as few as four--from their personal collections. Although each of
the sales was completely legal under state and federal law, the agents then
charged the collector with having "engaged in the business" of dealing in guns
without the required license. Since existing law permits a felony conviction
upon these charges even where the individual has no criminal knowledge or
intent numerous collectors have been ruined by a felony record carrying a
potential sentence of five years in federal prison. Even in cases where the
collectors secured acquittal, or grand juries failed to indict, or prosecutors
refused to file criminal charges, agents of the Bureau have generally
confiscated the entire collection of the potential defendant upon the ground
that he intended to use it in that violation of the law. In several cases, the
agents have refused to return the collection even after acquittal by jury.

  The defendant, under existing law is not entitled to an award of attorney's
fees, therefore, should he secure return of his collection, an individual who
has already spent thousands of dollars establishing his innocence of the
criminal charges is required to spend thousands more to civilly prove his
innocence of the same acts, without hope of securing any redress. This, of
course, has given the enforcing agency enormous bargaining power in refusing
to return confiscated firearms. Evidence received by the Subcommittee on the
Constitution demonstrated that Bureau agents have tended to concentrate upon
collector's items rather than "criminal street guns". One witness appearing
before the Subcommittee related the confiscation of a shotgun valued at
$7,000. Even the Bureau's own valuations indicate that the value of firearms
confiscated by their agents is over twice the value which the Bureau has
claimed is typical of "street guns" used in crime. In recent months, the
average value has increased rather than decreased, indicating that the reforms
announced by the Bureau have not in fact redirected their agents away from
collector's items and toward guns used in crime.

  The Subcommittee on the Constitution has also obtained evidence of a variety
of other misdirected conduct by agents and supervisors of the Bureau. In
several cases, the Bureau has sought conviction for supposed technical
violations based upon policies and interpretations of law which the Bureau had
not published in the Federal Register, as required by 5 U.S.C.  552. For
instance, beginning in 1975, Bureau officials apparently reached a judgment
that a dealer who sells to a legitimate purchaser may nonetheless be subject
to prosecution or license revocation if he knows that that individual intends
to transfer the firearm to a nonresident or other unqualified purchaser. This
position was never published in the Federal Register and is indeed contrary to
indications which Bureau officials had given Congress, that such sales were
not in violation of existing law. Moreover, BATF had informed dealers that an
adult purchaser could legally buy for a minor, barred by his age from
purchasing a gun on his own. BATF made no effort to suggest that this was
applicable only where the barrier was one of age. Rather than informing the
dealers of this distinction, Bureau agents set out to produce mass arrests
upon these "straw man" sale charges, sending out undercover agents to entice
dealers into transfers of this type. The first major use of these charges, in
South Carolina in 1975, led to 37 dealers being driven from business, many
convicted on felony charges. When one of the judges informed Bureau officials
that he felt dealers had not been fairly treated and given information of the
policies they were expected to follow, and refused to permit further
prosecutions until they were informed, Bureau officials were careful to inform
only the dealers in that one state and even then complained in internal
memoranda that this was interfering with the creation of the cases. When BATF
was later requested to place a warning to dealers on the front of the Form
4473, which each dealer executes when a sale is made, it instead chose to
place the warning in fine print upon the back of the form, thus further
concealing it from the dealer's sight.

  The Constitution Subcommittee also received evidence that the Bureau has
formulated a requirement, of which dealers were not informed that requires a
dealer to keep official records of sales even from his private collection.
BATF has gone farther than merely failing to publish this requirement. At one
point, even as it was prosecuting a dealer on this charge (admitting that he
had no criminal intent), the Director of the Bureau wrote Senator S. I.
Hayakawa to indicate that there was no such legal requirement and it was
completely lawful for a dealer to sell from his collection without recording
it. Since that date, the Director of the Bureau has stated that that is not
the Bureau's position and that such sales are completely illegal; after making
that statement, however, he was quoted in an interview for a magazine read
primarily by licensed firearms dealers as stating that such sales were in fact
legal and permitted by the Bureau. In these and similar areas, the Bureau has
violated not only the dictates of common sense, but of 5 U.S.C.  552, which
was intended to prevent "secret lawmaking" by administrative bodies.

  These practices, amply documented in hearings before this Subcommittee,
leave little doubt that the Bureau has disregarded rights guaranteed by the
constitution and laws of the United States.

  It has trampled upon the second amendment by chilling exercise of the right
to keep and bear arms by law-abiding citizens.

  It has offended the fourth amendment by unreasonably searching and seizing
private property.

  It has ignored the Fifth Amendment by taking private property without just
compensation and by entrapping honest citizens without regard for their right
to due process of law.

  The rebuttal presented to the Subcommittee by the Bureau was utterly
unconvincing. Richard Davis, speaking on behalf of the Treasury Department,
asserted vaguely that the Bureau's priorities were aimed at prosecuting
willful violators, particularly felons illegally in possession, and at
confiscating only guns actually likely to be used in crime. He also asserted
that the Bureau has recently made great strides toward achieving these
priorities. No documentation was offered for either of these assertions. In
hearings before BATF's Appropriations Subcommittee, however, expert evidence
was submitted establishing that approximately 75 percent of BATF gun
prosecutions were aimed at ordinary citizens who had neither criminal intent
nor knowledge, but were enticed by agents into unknowing technical violations.
(In one case, in fact, the individual was being prosecuted for an act which
the Bureau's acting director had stated was perfectly lawful.) In those
hearings, moreover, BATF conceded that in fact (1) only 9.8 percent of their
firearm arrests were brought on felons in illicit possession charges; (2) the
average value of guns seized was $116, whereas BATF had claimed that "crime
guns" were priced at less than half that figure; (3) in the months following
the announcement of their new "priorities", the percentage of gun prosecutions
aimed at felons had in fact fallen by a third, and the value of confiscated
guns had risen. All this indicates that the Bureau's vague claims, both of
focus upon gun-using criminals and of recent reforms, are empty words.

  In light of this evidence, reform of federal firearm laws is necessary to
protect the most vital rights of American citizens. Such legislation is
embodied in S. 1030. That legislation would require proof of a willful
violation as an element of a federal gun prosecution, forcing enforcing
agencies to ignore the easier technical cases and aim solely at the
intentional breaches. It would restrict confiscation of firearms to those
actually used in an offense, and require their return should the owner be
acquitted of the charges. By providing for award of attorney's fees in
confiscation cases, or in other cases if the judge finds charges were brought
without just basis or from improper motives, this proposal would be largely
self-enforcing. S. 1030 would enhance vital protection of constitutional and
civil liberties of those Americans who choose to exercise their Second
Amendment right to keep and bear arms.

88-618 O-82--3



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

"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, U.S. Constitution

  The "right of the people to keep and bear arms" is part of the Bill of
Rights. It stands alongside the First Amendment's rights of freedom of speech,
press, religion, and assembly. Opponents of strict or any regulation of
private possession of firearms regard the Second Amendment as no less
important than the First, indeed as a defense against a tyrannical government
that would deprive the people of the basic rights for which a revolution was
fought and an independent nation founded. Regardless of the degree of gun
control any of us may prefer, it is essential that the meaning and intent of
the Second Amendment be clearly understood, and its mandate carried out.

100 Years of Court Decisions

  Although a lively debate has raged over the purpose of the Second Amendment,
the nation's courts--federal and state alike--have been in basic agreement on
this subject for as long as judicial judgments have been made on contentions
that the Second Amendment establishes a personal right to have firearms, free
from government regulation. Such decisions go back more than 100 years. The
Supreme Court's first decision in this field was in 1875 in United States v.
Cruikshank. Here the Court found that the right to keep and bear arms was not
a right granted by the Constitution, was not dependent on the Constitution for
its existence, was protected only against infringement by the federal
government, and in any case its application to personal rights was only in the
context of the freedom of the states to have their own militias. That is, the
right of the individual to have firearms was given constitutional protection
only to the extent that the right of the particular individual to have a gun
was essential to the ability of the state to have an effective militia.

  The significance of this relationship of the individual to the organized
militia is better understood when one recalls the nature of the armed forces
Code in their attempt to prove that the militia is not limited to the National
Guard--namely, that there is an "unorganized militia" and that under the
Second Amendment every member of it has a constitutional right to have
firearms. Title 10, Section 311, states that "the militia of the United States
consists of all able-bodied males at least 17 years of age and . . . under 45
years of age who are, or who have made a declaration of intention to become,
citizens of the United States."

  Those who cite that regulation in the debate on gun control interpret it to
mean that every such person, in fact every adult citizen, has a Second
Amendment right to a gun to protect himself or herself against violent harm to
themselves, their families and their communities. The police, they contend,
are not always available. When widespread violence occurs, the National Guard
and other military forces may be preoccupied elsewhere. In this light, the
National Rifle Association sees the armed citizen as "a potential community
stabilizer" whether as a civilian member of an organized posse or simply as a
member of the "unorganized militia." In some renditions of the right to keep
and bear arms, the armed citizen is seen as "a vital last line of defense
against crime, federal tyranny, and foreign invasion"--the people's "ultimate
check against abuses by their government," including abuse of power by a
militia.

"Well Regulated" Militia

  Whatever the merits of such notions about personal and national security
(they are, to say the least, highly questionable in this day and age), it is
important to note that the only kind of militia the Second Amendment expressly
regards as consistent with security is a "well-regulated" militia. One may
rationally and reasonably conclude that this applies both to an organized
militia and an unorganized one. Otherwise, an armed citizenry consisting of
men and women using guns for presumed high purpose according to their
respective dictates of personal whim and political fancy is the stuff from
which anarchy could result, and in turn the tyranny against which the private
possession of guns is supposed to protect Americans.

  The right to keep and bear arms (a term that connotes a military purpose)
stems from the English common law right of self-defense. However, the
possession of guns in the mother country of the common law was never an
absolute right. Various conditions were imposed. Britain today has one of the
strictest gun laws in the world.

  There is nothing absolute about the freedoms in our own Bill of Rights.
Freedom of speech is not freedom to shout "fire" in a crowded theater. Freedom
of religion is not freedom to have multiple spouses, or sacrifice a lamb in
the local park, as religiously sanctioned practices. Similarly, whatever right
the Second Amendment protects regarding the private possession of guns, for
whatever definition of "militia," is not an absolute right. It must serve the
overall public interest, including (from the preamble of the US Constitution)
the need to "insure domestic tranquility, provide for the common defense and
promote the general welfare." Whatever right there is to possess firearms is
no less important than the right of every American, gun owners included, to
protection against the possession of guns by persons who by any reasonable
standard lack the crucial credentials for responsible gun ownership.
                        27

100 Maryland Avenue, N.E. Washington, D.C. 20002 Phone: [phone] or 7191

national coalition to ban handguns

JUNE 26, 1981

NATIONAL COALITION TO DAN HANDGUNS STATEMENT ON THE SECOND AMENDMENT

By: Michael K. Beard, Executive Director

Samuel S. Fields Legal Affairs Coordinator

participating organizations

American Civil Liberties Union

American Ethical Union



Americans for Democratic Action

American Jewish Congress



American Psychiatric Association

American Public Health Association

Black Women's Community Development Foundation

B'nai B'rith Women

Board of Church & Society, United Methodist Church

Center for Social Action, United Church of Christ

Church of the Brethren, Washington Office

Disarm Educational Fund

Friends Committee on National Legislation

International Ladies' Garment Workers Union

Jesuit Conference--Office of Social Ministries

National Alliance for Safer Cities

National Association of Social Workers

National Council of Jewish Women, Inc.

National Council of Negro Women

National Jewish Welfare Board

Political Action Committee, Woman's National Democratic Club

The Program Agency, United Presbyterian Church in the U.S.A.

Union of American Hebrew Congregations

Unitarian Universalist Association

United States Conference of Mayors

United States National Student Association

United Synagogue of America

Women's Division, Board of Global Ministries, United Methodist Church

Women's League for Conservative Judaism

Young Women's Christian Association of the U.S.A., National Board

(partial listing)

-----------------------------------------------------
l John Levin. "The Right to Bear Arms: The Development
l of the American Experience."  Chicago - Kent Law
l Review, Fall-Winter 1971.
l
l 1975 American Bar Association Gun
l Control Policy
l
l Standing Armies and Armed Citizens:
l An Historical Analysis of the Second
l Amendment
l
l Gun Control Legislation
l By The Committee on Federal Legislation
l

N.C.B.H. STATEMENT

  There is probably less agreement, more misinformation, and less
understanding of the right to keep and bear arms than any other current
controversial constitutional issue. The crux of the controversy is the
construction of the Second Amendment to the Constitution, which reads: "A
well-regulated militia, being necessary to the security of a free State, the
right to keep and bear arms shall not be infringed." In addition to the five
decisions in which the Supreme Court has construed the Amendment, every
Federal court decision involving the Amendment has given the Amendment a
collective, militia interpretation and/or held that firearms control laws
enacted under a state's police power are constitutional. Thus arguments
premised upon the Federal Second Amendment, or the similar provisions in the
thirty-seven state constitutions, have never prevented regulation of firearms.

--American Bar Association   Background Report on   Firearms Control

   The Union agrees with the Supreme Court's long-standing interpretation of
the Second Amendment that the individual's right to keep and bear arms applies
only to the preservation or efficiency of a "well-regulated militia." Except
for lawful police and military purposes, the possession of weapons by
individuals is not constitutionally protected.

--American Civil Liberties Union   Policy # 43

N.C.B.H. STATEMENT

  The Second Amendment to the United States Constitution says: "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." While NRA takes
the firm stand that law-abiding Americans are constitutionally entitled to the
legal ownership and use of firearms, the Second Amendment has not prevented
firearms regulation on national and state levels. Also, the few federal court
decisions involving the Second Amendment have largely given the Amendment a
collective, militia interpretation and have limited the application of the
Amendment to the Federal Government.

--National Rifle Association   "NRA Fact Book on Firearms   Control"

 N.C.B.H. STATEMENT

YOU DO NOT HAVE A CONSTITUTIONAL RIGHT TO OWN A HANDGUN.

  The Second Amendment to the U.S. Constitution states: "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." Some people claim that
this amendment prohibits the federal government from interfering with their
private "right to bear arms." However, in every instance where the Supreme
Court has ruled on the Second Amendment or discussed it in a footnote or dicta
their position has been uniformly in favor of interpreting the Second
Amendment as a collective right of the several states and not as an individual
right.

  While the American "right to bear arms" developed at the time of the
revolution, it grew out of the duty imposed on the early colonists to keep
arms for the defense of their isolated and endangered communities. This duty
was limited, however, by the colonial governments in order to prevent the use
of firearms for harmful purposes. To prevent civil disturbances the colonial
governments were careful to keep arms from falling into the "wrong hands" and
passed regulations concerning the conditions under which arms could be used.

  Following the revolution the founders of the nation lacked confidence in the
newly formed federation. Having just waged a revolution against an oppressive
colonial ruler, they felt the need to protect their collective right to rise
up and defend themselves against the new federal government. The founding
fathers wanted to be sure than a people's militia could continue to exist in
case the states needed to protect themselves from abuses by the new federal
government.

  Records of the debates over the passage of the Second Amendment clearly show
that the intent of Congress was to prevent the federal government from
destroying the state militias. The "right to bear arms" was a corporate right
used to insure that a balance between liberty and authority within the union
would be maintained. Personal self-protection was not the issue. While some
attempts were made to include a personal right to have arms in the Bill of
Rights, these provisions were never adopted.

  Many court decisions and virtually every leading legal scholar and
constitutional expert in the country agree that the intent, wording and
meaning of the Second Amendment in its full context, refer only to the
people's collective right to bear arms as members of a well-regulated and
authorized militia. Moreover, no serious student of law believes that the
amendment prevents the reasonable regulation of firearms. This is evidenced by
the many unchallenged laws on the books which require licenses and permits or
prohibit the carrying of concealed weapons.

  While the Second Amendment does not guarantee an individual a right to bear
arms, the rights and responsibilities of self-protection are implicit in much
of the constitution and in the vast body of law that rules our political and
social life. Members of the pro-handgun lobby sometimes cite common law to
support their arguments against handgun control. According to these arguments
the individual has a Common Law right to keep and bear arms for self-defense
and to defend one's country. It should be noted, however, that England, the
country which is the source of all U.S. Common Law, has enacted some of the
most stringent handgun control laws in the world and thus does not feel that
they are in violation of Common Law rights.

  Attached to this submission are four scholarly articles on the origins and
meaning of the Second Amendment. An analysis by the U.S. Federal Courts
follows immediately.

What the Courts Say

  The "right to bear arms" question has been brought into the courts many
times since the Constitution was written. The courts have consistently ruled
that the Second Amendment does not guarantee a personal right to own firearms.

  Supreme Court decisions on the "right to bear arms" have repeatedly stated
that the Second Amendment was conceived of as a restraint on the power of the
federal government over the state militias.  In U.S. v. Cruikshank, 95 U.S.
542 (1874), the Court held that while there may be an individual right to
possess arms, it existed independently of the Second Amendment.

  Subsequent decisions elaborated on the scope of the Second Amendment's
guarantee. In Presser v. Illinois, 116 U.S. 252 (1886), the Court upheld an
Illinois statute forbidding bodies of men to associate in military
organizations or to drill or parade with arms in cities or towns. The court
also ruled that the states had the power to regulated firearms as was
necessary for the common good.

  The third and least important of the Second Amendment cases was Miller v.
Texas, 153 U.S. 535 (1894), in which a convicted murderer asserted that the
state had violated his Second and Fourth Amendment rights. The Supreme Court
unanimously dismissed the claim saying that the Second Amendment did not apply
to the states citing, Cruikshank and other cases.

  The most frequently discussed case on the issue of the Second Amendment is
U.S. v. Miller 307 U.S. 174, 59 5. Ct. 816, 83 L.Ed. 1206 (1939). At issue is
the so-called "ordinary military equipment question. Proponents of the Second
Amendment as an individual right insist that the Miller Court was attempting
to dichotomize "militia" and "non-militia" weapons, the latter being subject
to legislative control while the former is not. The argument then goes on to
state that the court was unaware that Miller's weapon, a sawed-off shotgun,
had in fact been used in World War I. Therefore, the argument continues, if
the Court had only been made aware of this historical fact it would have
overturned Miller's conviction and ruled the 1934 National Firearm Act
unconstitutional.

  The problem with this argument is twofold. First, the Court was not creating
the "militia" versus "non-militia" dichotomy for the purposes of identifying
individual right versus collective right weapons. Second, and probably more
important, the Court was probably not attempting to formulate a rule at all.
See: Cases v. U.S. 131 F.2d 916 (1 CCA, 1942) cert. denied 319 U.S. 770, 63 S.
Ct. 1431, 87 L.Ed. 1718 (1942). [Note: in the certiorari denial the defendant
is referred to as Velazquez v. U.S. His full name was Jose Cases Velazquez,
hence, this has been a source of some confusion.]

  In rejecting the military character of the shotgun the Miller court wrote:

In the absence of any evidence tending show that possession or use of a
"shotgun having a barrel of less than eighteen inches in length" at this time
has some reasonable relationship to the preservation or efficiency of a *well
regulated militia*, we cannot say that the Second Amendment guarantees for the
right to keep and bear such an instrument [emphasis added].

  What we have then is two tiered test: first for the weapon and second for
the weapon holder. Even assuming that clear convincing proof had shown that
sawed-off shotguns were not merely part of the military arsenal but in fact
were standard issue as common as K-rations and helmets and furthermore it was
a court martial offense to be found without it, it still would not have done
Mr. Miller a whit of good. Mr. Miller fails miserably in the weapon holder
test. He was not acting in the role of the member of "militia," much less a
regulated militia," [sic] and least of all the "well regulated militia,"
described by the Court and the Second Amendment.

  The most that can be said for whose right emerged in Miller is that of the
state militia's and their own arsenals. But even here common sense tells us
there are clear parameters on state militia arsenals. If not, it would
logically follow that the several states could, at will, establish independent
nuclear strike forces. If nothing else, such a development would certainly
enliven the annual Governor's conference.

  But, of course, shortly after the Miller court ruled, the idea of a
"militia/non-militia" test was put to a well needed rest. In Cases [a.k.a.
Velazquez] the Court of Appeals not only rejected the idea that individuals
were part of the militia/non-militia weapons dichotomy but insisted that no
such dichotomy was intended:

we do not feel that the Supreme Court in this case was attempting to formulate
a general rule applicable to all cases. The rule which it laid down was
adequate to dispose of the case before it and that we think was as far as the
Supreme Court intended to go.

  Since Miller the Supreme Court has on at least two occasions spoken on the
subject of the Second Amendment. In E. Adams v. Williams 407 U.S. 143, 92 S.
Ct. 1921, 322 Ed. 612 (1972) Justice Douglas discussing search and seizure
problems wrote:

  A powerful lobby dins into the ears of our citizenry that these gun
purchases are constitutional rights protected by the Second Amendment, which
reads, "A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be infringed."
 There is under our decisions no reason why stiff state laws governing the
purchase and possession of pistols may not be enacted. There is no reason why
pistols may not be barred from anyone with a police record. There is no reason
why a state may not require a purchaser of a pistol to pass a psychiatric
test. There is no reason why all pistols should not be barred to everyone
except the police.

    The leading case is United States v. Miller, 307 U.S. 174, 59 S.Ct . 816,
83 L.Ed. 1206, upholding a federal law making criminal the shipment in
interstate commerce of a sawed-off shotgun. The law was upheld, there being no
evidence that a sawed-off shotgun had "some reasonable relationship to the
preservation or efficiency of a well regulated militia." Id., at 178, 59 S.Ct.
at 818. The Second Amendment, it was held, "must be interpreted and applied"
with the view of maintaining a "militia."

  "The Militia which the States were expected to maintain and train is set in
contrast with Troops which they were forbidden to keep without the consent of
Congress. The sentiment of the time strongly disfavored standing armies: the
common view was that adequate defense of country and laws could be secured
through the Militia--civilians primarily, soldiers on occasion." Id., at
178-179, 59 S.Ct., at 818.

  Critics say that proposals like this water down the Second Amendment. Our
decisions belie that argument, for the Second Amendment, as noted, was
designed to keep alive the militia.

  Douglas and Marshall's opinion on the Second Amendment  is unequivocally
clear: the Amendment is a collective right of the state.

  Most recently in Lewis v. United States 445 U.S. 95, 100 S. Ct. 915 __ L.Ed.
____ (1980) Justice Blackmun, writing for the majority, upheld the 1968 Gun
Control Act and noted in a critical footnote:

8. These legislative restrictions on the use of firearms are neither based
upon constitutionally suspect criteria, nor do they trench upon any
constitutionally protected liberties. See Unites States v. Miller, 307 U.S.
174, 178, 59 S. Ct. 816, 818, 83 L.Ed. 1206 (1939) (the Second Amendment
guarantees no right to keep and bear a firearm that does not have some
reasonable relationship to the preservation or efficiency of a well regulated
militia"); United States v. Three Winchester 30-30 Caliber Lever Action
Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1975); United States v. Johnson, 497
F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied,
490 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) (the latter three cases
holding, respectively, that Sec. 1202(a)(1), Sec. 922(g), and Sec. 922(a)(6)
do not violate the Second Amendment).

The Miller standard has once again been vindicated to be a collective right of
"a well regulated militia."

The Court of Appeals on Various Aspects of the Second Amendment

U.S. v. Wilbur 545 F.2d 7641 (1st 1976)

  In prosecution for violation of the Gun Control Act of 1968, trial court
action in curtailing defense counsel's argument on Second Amendment was proper
as preventing confusion lest jury believe that United States Constitution
provided defendants with legal defense.

 Eckert v. City of Philadelphia 477 F.2d 610 (3rd 1973)

  Appellant's theory in the district court which he now repeats is that by the
Second Amendment to the United States Constitution he is entitled to bear
arms. Appellant is completely wrong about that.

U.S. v. King 532 F.2d 505 (3rd 1976)

  We firmly disagree with the argument that the statute violates appellant's
right to keep and bear arms. He was neither charged with nor convicted of
keeping and bearing arms. He was charged with and convicted of engaging
without a license in the business of dealing in firearms and of conspiring
with others so to do.

U.S. v. Graves 554 F.2d 65 (3rd 1977)

  The courts consistently have found no conflict between federal gun laws and
the Second Amendment, narrowly construing the latter to guarantee the right to
bear arms as a member of a militia. Graves has not attempted to invoke the
Second Amendment as a defense in the present prosecution. Even if he had, we
would deem controlling the interpretation adopted in Miller and the cases
following it.

U.S. v. Johnson 497 F.2d 548 (4th 1974)

  The statute prohibiting the transportation of a firearm in interstate
commerce after having been convicted of a felony is not unconstitutional as
violative of defendant's Second Amendment right to keep and bear arms since
the Second Amendment only confers a collective right of keeping and bearing
arms which must bear a reasonable relationship to the presentation or
efficiency of a well-regulated militia.

U.S. v. Snider 502 F.2d 645 (4th 1974)

Dissent (not in conflict with the majority view on this issue):   Although
thousand of perfectly well intentioned persons doubtless believe with all
sincerity that the Second Amendment protection of the right to bear arms is
violated by the Gun Law e.g. 18 U.S.C. Appendix (201 et seq.), such a
contention would be frivolous.

U.S. v. Johnson 441 F.2d 1134 (5th 1971)

  Appellant's remaining contention, that his constitutional right to bear arms
has been infringed by the Act, misconstrues the Second Amendment. The Supreme
Court dealt with such a constitutional attack directed against the National
Firearms Act of 1934 in U.S. v. Miller.

U.S. v. Williams 446 F.2d 4b (5th 1971)

  Statutes proscribing offense of and penalty for possession of an
unregistered firearm are not violative of the right to bear arms as guaranteed
by Second Amendment.

McKnight v. U.S. 507 F.2d 1034 (5th 1975)

  Appeals Court upholds lower court's rejection of defendant's motion for
relief on the basis that the firearms charge under which he was convicted
violated his Second Amendment rights.

88-618 O-82--4

N.C.B.H. STATEMENT

U.S. v. Forgett 349 F.2d 601 (6th 1965)

  Upholds Miller ruling regarding the National Firearms Act as not violating
the Second Amendment.

Stevens v. U.S. 440 F.2d 144 (6th 1971)

  Constitutional right to keep and bear arms applies only to the right of the
state to maintain militia and not to individuals' rights to bear arms.
Congress had authority under commerce clause to prohibit possession of
firearms by convicted felons, based upon congressional finding that such
possession passes threat to interstate commerce.

U.S. v. Day 476 F.2d 562 (6th 1973)

  As to the alleged right to bear arms, Day's claim is meritless. There is no
absolute constitutional right of an individual to possess a firearm.

U.S. v. Birmley 529 F.2d 103 (6th 1976)

  Statute under which defendants were convicted of possession of unregistered
firearms did not violate defendants' right to bear arms.

U.S. v. Warin 530 F.2d 103 (6th 1976)

  It is clear that the Second Amendment guarantees a collective rather than an
individual right. The fact that the defendant Warin, in common with all adult
residents and citizens of Ohio, is subject to enrollment in the militia of the
state confers on him no right to possess the submachine gun in question.

U.S. v. Pruner 606 F.2d 871 (6th 1979)

  Upholds Justice Douglas' concurring and dissenting discussion on the
proposition that the purchase of guns is a constitutional right protected by
the Second Amendment in Adams v. Williams.

Witherspoon v. U.S. 633 F.2d 1247 (6th 1980)

  Appellant contended that the Second Amendment afforded him protection from
the federal firearms statutes because he was on his own business premises.
There is, of course, no such specific proviso in the Second Amendment nor is
there any Supreme Court interpretation to that effect.

U.S. v. Lauchli 444 F.2d 1037 (7th 1971)

 We reject defendant's argument that the Gun Control Act of 1968 is violative
of the Second Amendment guarantee of the right to bear arms.

U.S. v. McCutcheon 446 F.2d 133 (7th 1971)

  Statute requiring one who makes firearm to file with Secretary of Treasury
or his delegate written application to make and register firearm and pay any
applicable tax thereon and statute requiring registration of such firearm by
maker thereof did not infringe Second Amendment right to keep and bear arms.

U.S. v. Three Winchester 30-30 Caliber Lever Action Carbines 504 F.2d 1288
(7th 1974)

  Statute prohibiting possession of firearms by previously convicted felon
does not infringe on Second Amendment's protection of right to bear arms.

U.S. v. Synnes 43B F.2d 764 (8th 1971)

  While the Court in Miller dealt with the prohibited possession of a
sawed-off shotgun, the reasoning and conclusion of that case has carried
forward to other federal gun legislation. We think it is also applicable here.
Although Sec. 1202(a) is the broadest federal gun legislation to date, we see
no conflict between it and the Second Amendment since there is no showing that
prohibiting possession of firearms by felons the maintenance of a "well
regulated militia."

U.S. v. Decker 446 F.2d 164 (8th 1971)

  The record-keeping requirements at issue here bear an even more tenuous
relationship to the Second Amendment than did the statute involved in Miller.
Thus, in light of the defendants failure to present any evidence indicating a
conflict between the requirements of Secs. 922(m) and 923(g) and the
maintenance of a well-regulated militia. We decline to hold that the statute
violates the Second Amendment.

N.C.B.H. STATEMENT

Cody v. U.S. 460 F.2d 34 (8th 1972)

  Second Amendment right to bear arms is not an absolute bar to Congressional
regulation of the use or possession of firearms and its guarantee extends only
to use or possession which has some reasonable relationship to the
presentation or efficiency of a well-regulated militia.

U.S. v. Turcotte 558 F.2d 893 (8th 1977)

  We find no reason to reconsider the decision in Cody that the prohibition of
section 922 does not obstruct the maintenance of a well-regulated militia, and
therefore is not violative of the Second Amendment.

U.S. v. Wynde 579 F.2d 1088 (8th 1978)

  Upholds U.S. v. Turcotte, which declared that Sec. 922(h) does not violate
the Second Amendment right to bear arms.

U.S. v. Tomlin 454 F.2d 17b (9th 1972)

  Statutes requiring registration of firearms and making it unlawful for any
person to receive or possess unregistered firearms are not unconstitutional as
infringing on right to bear arms under Second Amendment.

U.S. v. Oakes 564 F.2d 384 (l0th 1977)

  Purpose of the Second Amendment guaranteeing the right of the people to keep
and bear arms, was to preserve the effectiveness and assure the continuation
of the state militia. To apply the Second Amendment so as to guarantee
defendant's right to keep an unregistered firearm which was not shown to have
any connection to the militia, merely because defendant was technically a
member of the Kansas militia, would be unjustified in terms of either logic or
policy; and his membership in "Posse Comitatus," an apparently
non-governmental organization.



 HISTORICAL BASES OF THE RIGHT TO KEEP AND BEAR ARMS

by David T. Hardy, Partner in the Law Firm Sando & Hardy

  In analysing the right to keep and bear arms, we must constantly keep in
mind that it is one of the few rights in the Constitution which can claim any
considerable antiquity. Freedom of the press, for instance, had little
ancestry at common law: statutes requiring a government license to publish any
works on political or religious matters were in effect in England until 1695,
when they were allowed to expire for economic, not libertarian, reasons.[1]
Long after that date, prosecutions after-the-fact for seditious libel were
common. In the Colonies, these and similar statutes were likewise enforced and
offending religious material was burned in Massachusetts as late as 1723.[2]
Protests against general search warrants did not become common until after
1760, and the invalidity of such warrants at common law was not recognized
until the eve of the American Revolution.[3]

  In contrast to these rights, the right to keep and bear arms can claim an
ancestry stretching for well over a millennium. The antiquity of the right is
so great that it is all but impossible to document its actual beginning. It is
fairly clear that its origin lay in the customs of Germanic tribes, under
which arms bearing was a right and a duty of free men; in fact, the ceremony
for giving freedom to a slave required that the former slave be presented with
the armament of a free man.[4] He then acquired the duty to serve in an
equivalent of a citizen army. These customs were brought into England by the
earliest Saxons. The first mention of the citizen army, or the "fyrd" is found
in documents dating to 690 A.D., but scholars have concluded that the duty to
serve in such with personal armament "is older than our oldest records." (Not
knowing of the earlier records, 18th century legal historians including the
great Blackstone attributed the origin of the English system to Alfred the
Great, who ruled in the late 9th century A.D.)[5]

  This viewpoint of individual armament and duty differed greatly from the
feudal system which were coming into existence in Europe. The feudal system
presupposed that the vast bulk of fighting duties would fall to a small
warrior caste, composed primarily of the mounted knight. These individuals
held the primary political and military power. Thus peasant armament was a
threat to the political status quo. In England, on the other hand, a system
evolved whereby peasant armament became the great underpinning of the status
quo and individual armament became viewed as a right rather than a threat.

  This in turn significantly changed the evolution of political systems in
Britain. Since so much military power lay with the private citizen, the
traditional monarchy was necessarily much more a limited monarchy than an
absolute one. Even after the Norman Conquest of 1066, which brought feudal
systems into Britain, kings regularly appealed to the people for assistance.
William Rufus, second Norman king of England, was driven to appeal to the
citizenry to put down a rebellion of feudal barons. To obtain the assistance
of the individual armed citizen, he promised the people of England to provide
better laws then had ever been made, to rescind all new taxes instituted
during his reign, and to annul the hated forest laws which imposed draconian
punishments; inspired by his promises, the citizenry rose with their arms and
defended his government against the rebels.[6] After his death, his brother,
Henry I, often drilled the citizen units in person, seeking to appeal to the
individual members. In short, kingship in Britain became a far more democratic
affair than it would ever become on the Continent, due in major part to the
individual armament of the British citizen.

  The Angevin monarchs expanded this still farther. Henry II, who is
considered the father of the common law, promulgated the Assize of Arms in
1181. This required all British citizens between 15 and 40 to purchase and
keep arms. The type of arms required varied with wealth; the wealthiest had to
provide themselves with full armor, sword, dagger, and war horse, while even
the poorest citizens, "the whole community of freemen", must have leather
armor, helmet and a lance.[7] Twice a year all citizens were to be inspected
by the king's officials to insure that they possessed the necessary arms.
Conversely, the English made it quite clear that the king was to be expected
to depend exclusively upon his armed freemen. When rebellious barons forced
John I to sign the Magna Carta in 1215, they inserted in its prohibitions a
requirement that he "expel from the kingdom all foreign knights, crossbowmen,
sergeants, and mercenaries, who have come with horses and weapons to the harm
of the realm."

  Henry III continued this tradition. In his 1253 Assize of Arms he expanded
the age categories to include everyone between 15 and 60 years of age, and
made a further modification which bordered on the revolutionary. Now, not only
were freemen to be armed, but even villeins, who were little more than serfs
and were bound to the land. Now all "citizens, burgesses, free tenants,
villeins and others from 15 to 60 years of age" were legally required to be
armed.[8] Even the poorest classes of these were required to have a halberd (a
pole arm with an axe and spike head) and a knife, plus a bow if they owned
lands worth over two pounds sterling.

  The role of the armed citizen expanded under the rule of the four Edwards.
During civil wars in Wales, Edward I discovered the utility of the Welsh
longbow, an extremely potent bow (its pull was estimated to have been between
100-200 pounds, whereas today a 60-pound bow is considered extremely powerful)
which could penetrate the heaviest armor. Unlike the crossbow (and to an even
greater extent, the armor and horse of the mounted knight) the longbow could
be made cheaply enough and maintained easily enough to become the universal
armament of all citizens. While on the Continent so deadly a weapon was
considered a threat to the rule of the armored knight, in Britain its use was
encouraged by the monarch. At Crecy, Poitiers and Agincourt, the longbow in
the hands of British commoners decimated the French armored knights. By 1369
Edward III was ordering the sheriffs of London to require "everyone of said
city stronge in body, at leisure time on holidays" to "use in their recreation
bowes and arrows."[9] He hardly needed the encouragement; the archery ranges
outside London were so constantly swamped with arrows that no grass would grow
upon them. Edward IV continued this policy, commanding that "every Englishman
or Irishman dwelling in England must have a bow of his own height", and
commanding that each town build and maintain an archery range upon which every
citizen must practice on feast days.[10] In 1470 he banned games of dice,
horseshoes, and tennis in order to force citizens to use nothing but the bow
for sport.[ll] He imposed price controls on bows in order to ensure that bows
would be inexpensive enough for even the poorest citizen to purchase them.[12]

  While the common law sought to force all commoners to possess what was then
the most deadly military weapon, it also imposed only the most minimal
restraints upon use of that weapon. These focused purely upon criminal misuse
of the weapon or its transportation into certain highly protected areas. In
1279, for instance, those coming before the royal courts were required to
"come without all force and armor".[13] The Statute of Arms, whose date of
enactment is uncertain, required that spectators at tournaments attend without
armament and that those participating in the tournament carry swords without
points.[14] The 1328 Statute of Northampton prohibited anyone, other than the
king's servants or citizens attempting to keep the peace, from coming before
the king's ministers "with force and arms", or acting "in affray of the
peace", and from going or riding "armed by night or by day in fairs, markets,
nor in the presence of the justices or other ministers nor in no part
elsewhere...."[15] In light of the common law preference for individual
armament, however, English courts construed this to mean that only carrying of
arms in a threatening or terrifying manner was prohibited. In the words of
William Hawkins in his "Pleas of the Crown", "no wearing of arms is within the
meaning of the statute, unless it be accompanied with such circumstances as
are apt to terrify the people; from which it seems to follow, that persons of
quality are in no danger of offending against the statute by wearing common
weapons...."[16] Thus the sole common law restraints upon use of armament in
this period focused either upon carrying into specially protected areas or
upon what today would be considered assault with a deadly weapon.

  While firearms had been invented sometime before, only in the 16th century
did they become truly portable with the invention of the wheellock. This
breakthrough inspired a number of attempts in Europe and England to control
weaponry. The Emperor Maximilian attempted to impose bans upon wheellock
manufacture throughout his empire on the Continent; the French imposed strict
controls both upon manufacture and sale of firearms and upon assembly of
ammunition and making of powder.[17] The English briefly experimented with
such but found them repugnant to their institutions. Henry VII had in 1503
banned the shooting of crossbows upon an extremely limited basis.[18] First,
only shooting and not possession was outlawed, and that only without a license
or "placarde" from the king. Secondly, an exception was made for those who
shot in defense of a residence ("but if he shote aw of a howse for the
lawefull defen of the same") and for lords who owned land worth 200 marks per
year. Third, as might be surmised from the ban upon shooting rather than upon
ownership, the purpose was to force citizens to use the longbow, which was
considered a much deadlier weapon.

  His successor Henry VIII was a great devotee of the longbow and early in his
reign attempted to push its use by still more vigorous means. In 1511 he
enacted "an act concerning shooting in longe bowes" which banned games,
required fathers to purchase bows for sons between the ages of 7 and 14 and to
"lern theym and bryng theym up in shootyng". From age 14 until 40 each
non-disabled citizen was obliged to practice longbow shooting and also to have
bow and arrows "contynually in hys house." Anyone who failed to own and use a
longbow was subject to a fine. The ban upon crossbows was renewed and the
property requirement for such was raised to 300 marks.[l9]

  In 1514 Henry extended the ban upon crossbows to include "handgonnes" (which
at that time meant any firearm carried by hand, as opposed to cannons, rather
than what are today called "pistols"), and to extend the ban to possession as
well as shooting.[20] Once again the intent was to force ownership and use of
the longbow in place of the less efficient firearms of the time.

  Unlike his continental equivalents, Henry was soon forced to give up his
attempt at gun control. In 1523 the property qualification was lowered from
300 pounds sterling to only 100 pounds, and the penalty was reduced from
imprisonment and fine to a fine only.[21] In 1541 the statute was again
amended (adding in its preface a protest that despite the earlier law people
"have used and yet doe daylie ryde and go in the King's highwayes and
elsewhere, having with them crosbowes and little handguns") to permit
ownership of the longer arms (over three-quarters of a yard or one yard in
total length, depending upon type) by any citizen, and ownership of the
shorter arms by citizens with over 100 pounds' worth of land.[22] It also
prohibited shooting within a quarter of a mile of a town except upon a range
"or for defense of his person or house", and provided that "it shal be laufull
from henceforth to all gentlemen, yoemen and servingemen . . . and to all the
inhabitants of citties, boroughes and markett townes of this realme of
Englande to shote with any handgune, demyhake or hagbutt at anye butt or bank
of earth . . . to have and kepe in everie of their houses any such handgune or
handgunes . . . with the intent to use and shote the same at a but or bank of
earth . . . this present act or anythinge therein conteyned to the contrarie
notwithstandinge." Eventually Henry gave up the entire effort and simply
rescinded his firearm laws by proclamation.[23] Weapons control--at least that
which limited armament rather than required it--was recognized as repugnant to
the English system. Indeed, the Tudor legal commentator Sir John Fortescue
would comment (in his comparison between the happy state of peasants in
England, with its limited monarchy, and the unhappy state of peasants in
France, with absolute monarchy) that the French peasants were so poorly off
that they not only starved but could not have any "Wepen" or the means to
obtain it.[24] The consciousness of English as a weapons owning and using
people, in contrast to the French and other Continentals, was beginning to
take form.

  Under Elizabeth the English militia system developed still farther; indeed,
it was during her reign that the phrase "militia" was first used to describe
the concept of a universally armed people ready to stand in defense of their
nation.[25] The militia were now mustered by county lieutenants and called to
formal musters to display and practice with their weapons.[26] Elizabeth also
sought the creation of "trained bands" or "train bands", which were small
militia units given special training and provided with governmentally
purchased arms.[27]

  Her efforts largely decayed under her successor James I, who permitted
repeal of some of the most important militia statutes. His successor, Charles
I, paid the price. Increasing hostility from Parliament, which was now
beginning to assert itself as a distinct legislative body, brought the kingdom
to the brink of civil war. The king compromised, sending his best advisor to
the scaffold, but when Parliament asked for control over the militia he
exploded. "By God, not for an hour, you have asked that of me in this, which
was never asked of a king,"[28] he replied. An unsuccessful attempt to arrest
five members of Parliament on charges of treason led to the final breach. The
five members were protected by the London militia, and the king was forced to
flee the city and attempt to muster his own army.

  As the civil war wore on, Parliament was at length driven to create the "New
Model Army", a standing body of veteran troops who were predominantly
Puritan.[29] These were rigorously disciplined under the leadership of Oliver
Cromwell, who eventually rose to head the army, and with their aid Parliament
ended as the victor in the civil war. But in July 1647 the New Model Army
(alienated by a failure of pay and by the anti-Puritan measures of the
Parliament) marched on London and took over the government. On December 6,
1648 troops, acting on Cromwell's orders, surrounded the Parliament building
and drove off over 140 members. The remainder formed what became known as "the
Rump Parliament". By 1653 even the Rump was an impediment to Cromwell and he
used his troops to totally shut down parliamentary government; the army
officers then selected a new Parliament composed largely of Puritan elders. A
short time later Cromwell pressured its dissolution and in 1654 he replaced it
with yet another Parliament, in whose election only those whose land was worth
over 200 pounds sterling could vote. This Parliament in turn named Cromwell
"Lord Protector" and king of England in all but name. Yet a year later
Cromwell dissolved even this Parliament and established a military
dictatorship, dividing the nation into eleven districts, each headed by a
major general whose duties included political surveillance, censorship of
publications, and influencing future elections.[30] A major factor in the
dissolution of several of these parliaments was their attempt to adopt new
militia statutes; Cromwell, who controlled by the new model army, had little
interest in permitting Parliament to reorganize the militia.

  Following Cromwell's death, the English were more than happy to accept back
the son of the late Charles, Charles II, as monarch. Charles II promptly
dissolved the army, offering full pay plus a bonus from his own finances, and
guaranteeing work on public works projects for the demobilized troops.[31] He
also sought to secure himself by a variety of legislation which people in
Parliament, in their haste to welcome the end of Puritan rule, did not
recognize as dictatorial. In 1661 and 1662 he expanded the definition of
treason, imposed press censorship, restricted practice of religion by Puritans
and others and leveled the protective walls of many towns which had sided with
Parliament.[32] Instructions were also issued to the lord's lieutenant to form
special militia units out of volunteers of favorable political views, "the
officers to be numerous, disaffected persons watched and not allowed to
assemble, and their arms seized...."[33] The excessive searches for arms under
that order led to Parliamentary resistance and refusal to grant a militia bill
in the sessions of 1660 and 1661.[34] Only in 1662 was Charles able to obtain
a militia statute pleasing to him. The 1662 statute permitted the King to
appoint Lieutenants for each county and major city; these lieutenants could
charge persons with the responsibility of equipping and paying a militia man.
But not every Englishman was required to be armed or serve, and those who were
required could always hire a substitute to appear for them. The lieutenants
were moreover empowered to hire persons "to search for and seize all arms in
the costody or possession of any person or persons whom the said lieutenant or
any two or more of their deputies shall judge dangerous to the peace of the
kingdom...."[35] The Calendar of State Papers for the period is filled with
reports of confiscations of weapons from suspicious persons and religious
independents.[36] Charles also by proclamation ordered gunsmiths to produce
records of all firearms sold; importation of firearms from overseas was
banned; and carriers throughout the realm were forbidden to transport firearms
without first obtaining a license. (The resemblance between these measures and
the American 1968 Gun Control Act is astonishing).

  In 1671 this was followed with an amendment to the Hunting Act. Hunting was
restricted to those who owned lands worth 100 pounds and, most importantly,
those who could not hunt (who formed the vast bulk of the kingdom) were
"declared to be persons by the laws of this realm, not allowed to have or keep
for themselves, or any other person or persons, any guns, bows,
greyhounds...."[37] "Guns" were an addition to the list: all but the
wealthiest land-owners could be disarmed. As Charles' reign wore on he
encountered increasing opposition from Parliament and from what was becoming
the Whig party. This he met by such drastic measures as moving the sitting of
Parliament from London (which was quite favorable to the Whigs) to Oxford, and
by arresting and executing several Whig leaders on charges of treason. Charles
survived, but it was a close race.

  James II, Charles' brother and successor, would not be so lucky. He
continued to enforce the laws on disarmament, directing them with increasing
force against Puritans and his political opponents. Moreover he used his
"dispensing power" to permit Catholic officers to stay with the army. He
sought to obtain permission to expand the standing army complaining that
during rebellion the militia "is not sufficient for such occasions, and that
there is nothing but a good force of well disciplined troops in constant pay
that can defend us...."[38] Parliament refused, but James kept a limited
standing army on foot from his own resources. In 1686 he issued orders to six
lord lieutenants complaining that "a great many persons not qualified by law,
under pretense of shooting matches, keep muskets or other guns in their
houses," and that he desired them to "cause strict search to be made for such
muskets or guns and to seize and safely keep them until further order."[39] In
Ireland he ordered General Tyrconnel to disarm the populace:

  A royal order came from Whitehall for disarming the population. This order
Tyrconnel strictly executed as he respected the English. Although the country
was infested by predatory bands, a Protestant gentleman could scarcely obtain
permission to keep a brace of pistols.[40]

  These measures did James little good; in 1688 his son-in-law and daughter,
William of Orange and Mary entered the nation in a supposed "invasion" which
came to be known as the "the Glorious Revolution". After defection of a number
of his nobility and refusal of the militia to fight, James fled to the
Continent.

  This left Parliament with an interesting question: was James king and, if
not, how did they go about putting William and Mary on the throne? They
approached this problem by promulgating a Declaration of Rights, which listed
complaints against James and argued that these had forfeited him the right to
rule. After William accepted this Declaration as definitive of the rights of
Englishmen, he was permitted to assume the throne and call a Parliament, which
then reenacted the Declaration as the Bill of Rights.[41]

  The Declaration and Bill of Rights were later said to be "the essence of the
revolution"; [42] only a year before the adoption of the American Bill of
Rights, the great English jurist Edmund Burke would refer to the Declaration
as "the cornerstone of our Constitution."[43] The Declaration listed a variety
of civil liberties which James was accused of infringing. Prominent among
these was the right to keep and bear arms. The form finally adopted complained
that James had violated the liberties of the kingdom by keeping a standing
army and moreover by causing his Protestant subjects "to be disarmed at the
same time when Papists were both armed and employed contrary to law." It
accordingly resolved that "the subjects which are Protestant may have arms for
their defense suitable to their conditions and as allowed by law."[44] Since
only slightly over one percent of the population was then Catholic, this
amounted to a general right to own arms applicable to virtually all
Englishmen. The possible restriction--that they be arms "as allowed by
law"--was clarified by prompt amendment of the Hunting Act to remove the word
"guns" from items which even the poorest Englishman was not permitted to own.
Now all Englishmen could own arms "for their defense suitable to their
conditions and as allowed by law" in the form of whatever firearms they
desired.[45]

  A few modern writers, none of whom cite any historical evidence, have
claimed that the Bill of Rights was directed not so much at disarmament as at
the fact that Catholics were permitted to be armed while the Protestants had
been disarmed.[46] The statutory history of the Declaration of Rights proves
beyond any doubt that this is a totally incorrect. The debates in the House of
Commons, as recorded by Lord Somers, the principal draftsman of the
Declaration, show that the Members focused on the confiscation of private arms
collections under the 1662 Militia Act. Sergeant Maynard, for instance,
complains of James: "Can he sell or give away his subjects; an act of
Parliament was made to disarm all Englishmen, whom the lieutenant should
suspect, by day or by night, by force or otherwise--this was done in Ireland
for the sake of putting arms into Irish hands." Somers condensed a speech by
Sir Richard Temple to "Militia bill--power to disarm all England--now done in
Ireland." A Mr. Boscawen complained of "arbitrary power exercised by the
ministry--militia--imprisoning without reason; disarming--himself
disarmed...." Sergeant Maynard complained of the "Militia Act--an abominable
thing to disarm the nation. . . ."[47]

  The Lords felt even more strongly about the issue. The Commons originally
passed a declaration simply declaring 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 Protestant should provide and keep arms for the
common defense; and that the arms which have been seized and taken from them
be restored."[48] The Lords apparently felt this did not state the individual
rights strongly enough and completely omitted the language regarding the
common defense, substituting the final version: "The subjects which are
Protestant may have arms for their defense suitable to their conditions and as
allowed by law."[49] The language referring to the fact that Catholics were
armed while the disarmaments were proceeding was added only at conference,
with the Lords suggesting that it was a "further aggravation" to the
underlying illegality and therefore "fit to be mentioned."[50] Indeed, the
modern British historian J. R. Western complains that the modifications by the
House of Lords created too much of an individual right: "The original wording
implied that everyone had a duty to be ready to appear in arms whenever the
state was threatened. The revised wording suggested only that it was lawful to
keep a blunderbuss to repel burglars."[51]

  The "Glorious Revolution" also gave birth to the political philosophy which
underlay the American Revolution less than a century later. The two major
British parties, the Whigs and the Tories, had achieved both their essence and
their names during the fight under Charles II to exclude his brother James II
from the succession to the throne. One of the major points of the Whig
philosophy was the need for a true militia, in the sense which England had had
it during the Tudor years, and the scrapping of the standing army. All the
major Whig authors stressed this point; Algernon Sidney counseled that "no
state can be said to stand on a steady foundation, except those whose whole
strength is in their own soldiery, and the body of their own people;"[52]
Robert Molesworth advised that with standing armies "the people are
contributors to their own misery; and their purses are drained in order to
their misery,"[53] while attacking disarmament under the game laws with the
argument that "I hope no wise man will put a hare or a partridge in balance
with the safety and liberties of Englishmen".[54] These and other Whig authors
were to be found in the library of every American political thinker during the
years before the Revolution;[55] John Adams himself would estimate that ninety
percent of Americans were at that time Whigs by sentiment.[56]

  Notwithstanding this growing support for a true militia, the use of the
militia system in Britain steadily declined. By 1757 when a new Militia Act
was adopted, only 32,000 men, a very small part of the population, were to
serve.[57] The officers were to be chosen from the more wealthy of the gentry;
property qualifications were imposed for all commissioned officers. The
government would issue the arms to the militia, which were to be kept under
lock and key, and could be seized by the lieutenant or deputy lieutenant of
the county whenever he "shall adjudge it necessary to the peace of the
kingdom".[58] "The Whigs considered this "select militia" as little better
than a standing army: it was hardly a true "militia", an armed citizenry. In
the debates over the Scottish militia act, the Lord Mayor of London argued to
the Commons that the militia "could not longer be deemed a constitutional
defense, under the immediate control and direction of the people; for by that
bill they were rendered a standing army for all intents and purpose."[59] This
background--that of a tradition of an armed citizenry met with recent
infringements upon the traditional right of bearing arms--formed the
background of the political views of the framers of our own Constitution.

  The American experience with citizen armament had been more extensive even
than that of Britain. The early colonists brought their own arms and secured
additional ones from the government. As early as September 1622, they were
being armed not only with muskets but with "three hundred short pistols with
firelocks".[60] Virginia in 1623 ordered that no one was to "go or send abroad
with a sufficient party well armed" and each plantation was to insure that
there was "sufficient of powder and ammunition within the plantation".[61] In
1631 it ordered that no one work their fields unarmed and required militia
musters on a weekly basis following church services: "All men that are
fittinge to bear armes, shall bring their peeces to church . . ."[62] By 1673
the colony provided that persons unable to purchase firearms from their own
finances would be supplied guns by the government and required to pay a
reasonable price when able to do so. Similar legislation was imposed in the
other colonies. The first session of the legislature of the New Plymouth
Colony required "that every free man or other inhabitant of this Colony
provide for himself and each under him able to beare armes, a sufficient
musket and other serviceable peece for war" with other equipment.[63] Similar
measures were enacted in Connecticut in 1650.

  When the colonies began drifting toward revolution following the elections
of 1760, the colonists were thus well equipped for their role. The British
government began extensive troop movements into Boston in 1768 to reduce
opposition, and the town government responded by urging its citizens to arm
themselves and be prepared to defend themselves against the deprivations of
the soldiers. When Tories responded that this order was illegal, the colonial
newspapers responded that the right of personal armament was guaranteed to
every Englishman. The Boston Evening Post asserted that "It is certainly
beyond human art and sophistry, to prove that the British subjects, to whom
the privilege of possessing arms is expressly recognized by the Bill of
Rights, and to live in a province where the law requires them to be equipped
with arms, are guilty of an illegal act, in calling upon one another to be
provided with them, as the law directs."[64] The New York Journal Supplement
argued that the proposal "was a measure as prudent as it was legal" and that
"it is a natural right which the people have reserved to themselves, confirmed
by the Bill of Rights, to keep arms for their own defense...."[65] There can
be little doubt from these passages that the American colonists viewed the
English 1688 Declaration of Rights as recognizing an individual right to own
private firearms for self defense--even defense against government agents.

  Years passed before these proposals were actually put into effect, but the
warning signs were present long before the revolution itself broke out, and
some British heeded them. Pitt, the great Whig minister and friend of the
Colonies, had warned that "three millions of Whigs, with arms in their hands,
are a very formidable body."[66] Rather than the conciliation he called for,
the result was an attempt to disarm the Americans--an attempt which brought on
the Revolution. In December, 1774, for instance, export of guns and powder to
the colonies was prohibited.[67] When a group of British regulars quietly
emptied a militia powder magazine in September, 1774, the reaction was
dramatic. To some "it seemed part of a well designed plan to disarm the
people";[68] others were inflamed by incorrect rumors that six colonists had
been killed during the raid. Over 60,000 armed citizens turned out, heading
toward Boston, prepared for war.[69] This was more men under arms than would
be boasted by the entire British military establishment at the time.
Fortunately for that establishment, the colonists were convinced that their
actions were premature and returned to their homes. By September, a
Massachusetts town had instituted "the Minutemen", a group of select
militia.[70] Others formed special companies of militia--one of which in
Virginia included George Washington and George Mason, who would later draft
the Virginia Declaration of Rights.[71] In December the Maryland Convention
called upon the colonies to form a "well regulated militia" and illustrated
what it meant by instructing all citizens between the ages of 16 and 50 to arm
themselves and form into companies.[72] The following month the Fairfax
Committee of Public Safety, chaired by George Washington, joined in this
resolution, further defining its intent with the comment that "A well
regulated militia, composed of gentlemen, freeholders, and other freemen, is
the natural strength and only security of a free government", and recommending
all persons between 16 and 50 to "provide themselves with good firelocks".[73]
When Patrick Henry shortly thereafter gave his famed "give me liberty or give
me death" speech, the resolution which he moved by his oration began
"Resolved, that a well regulated militia, composed of gentlemen and freemen,
is the natural strength and only security of a free government".[74]

  The Colonials did not have long to wait. General Gage, military governor of
Boston, was already writing to London with regard to the "idea of disarming
certain counties."[75] In April, 1775, Gage made the mistake of repeating his
earlier raid upon a militia arsenal. This time there was firing and a number
of colonists were killed. The regulars were compelled to fight their way back
to Boston, swamped under the harassing fire of militia who swarmed in on their
flanks; without a last minute relief attack from Boston the entire column
might have been forced to surrender by ammunition exhaustion. The British lost
nearly 300 men in killed, wounded, and missing. Within a few days 16,000
militia descended upon Boston and besieged the area. During a British attack
on Breeds Hill, colonial sharpshooters (one of whom commented that he fired
"taking deliberate aim, as at a squirrel, and saw a number of men fall")[76]
inflicted disastrous losses on British troops. Over 1,000 regulars fell, 40
percent of the attacking force and over a tenth of the entire British army in
the Colonies. Officers suffered especially serious losses; one rifleman was
said to have shot down twenty officers in ten minutes; every single member of
Gage's staff was shot down.[77]

  In the meantime the militia throughout the rest of the Colonies seized
political control at the grass roots. Tories were quickly put down; British
foraging parties cut off; the mechanisms of government and administration lay
solidly in the hands of revolutionaries. While the British during the French
and Indian War were supplied primarily from the Colonies, throughout the
revolution they would have to draw primarily from their homeland. The constant
damage to British foraging parties ultimately led to a shipping problem which,
one historian judges, would have ended the war by 1782 in any event.[78]

  The militia played no minor role in the fighting: "Seldom has an armed force
done so much with so little--providing a vast reservoir of manpower for a
multiplicity of military needs, fighting (often unaided by Continentals) in
the great majority of the 1,331 land engagements of the war."[79]

  Following the war the colonies were temporarily governed under the Articles
of Confederation, which permitted a federal force necessary to garrison forts
and prohibited states from maintaining any standing forces. During these years
a number of militia proposals were put forward by George Washington, Alexander
Hamilton, Baron Steuben and Henry Knox.[80] All involved a general militia--in
which essentially every free citizen would serve--and a "select militia".
Steuben's proposal gave the greatest emphasis to the select militia; he would
have had a small force of 21,000 select militiamen, chosen by volunteering,
who would train one month out of each year. None of these proposals became
law.

  By 1787 the difficulties with the Articles of Confederation were becoming
insurmountable, and work began on a new Constitution. As adopted, the
Constitution gave Congress the power to provide "for organizing, arming and
disciplining the militia" but it could "govern" only those in federal service,
while the states would have the power of appointing officers and actually
training the militia according to the uniform system of discipline. Militiamen
would be subject to federal martial law only when called into active service.

  In the state conventions called to ratify the Constitution, the proposal
faced serious opposition. A major part of the opposition, later termed
anti-Federalist, focused on the fact that the Constitution lacked a Bill of
Rights. The British Bill of Rights was called into attention as a precedent
for such a measure. In the conflicts in the states three themes relating to
citizen armament soon became apparent. The first was the acceptance by both
Federalist and anti-Federalist of the critical role of the armed citizen, the
second was a distrust both of standing armies and of select militia, like the
modern National Guard; the third was pressure for a Bill of Rights which would
include provisions guaranteeing rights of individual armament.

  These thoughts began to take form in Connecticut, the fourth state to
ratify. An anti-Federalist article in the Connecticut Journal objected
strongly to the failure to outlaw a standing army and went on to criticize the
Constitution's militia provisions as permitting the formation of a select
militia: "This looks too much like Baron Steuben's militia, by which a
standing army was meant and intended."[81] In Pennsylvania the opposition
became even stiffer as the sentiment for a Bill of Rights grew. In a pamphlet
hurriedly written to support adoption of the Constitution without the Bill of
Rights, Noah Webster argued that the existing universal citizen armament made
a standing army of little danger. He claimed that a standing army is
oppressive only when it is "superior to any force that exists among the
people" since otherwise it "would be annihilated on the first exercise of acts
of oppression." He advised that the general armament of Americans rendered any
constitutional limitations on a standing army unnecessary:

  Before a standing army can rule, the people must be disarmed; as they are in
almost every kingdom of 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."[82]

  In the convention the fighting was heavy. Delegate John Smiley argued that
"Congress may give us a select militia which will, in fact, be a standing
army.... When a select militia is formed, the people in general may be
disarmed."[83] (The universal hostility to a select militia forms a most
convincing refutation to the current argument that the "militia" referred to
in the Second Amendment is the National Guard. On the contrary, virtually
every citation to such militia during the drafting and ratification period
views them as an evil comparable to a standing army and stresses that only a
militia composed of the entire body of the populace armed and trained will
protect freedom). Ultimately, Delegate Robert Whitehill moved a series of
fifteen proposed amendments which would have established a bill of rights
protecting freedom of conscience, speech, press, and virtually every other
right ultimately incorporated into the Bill of Rights. This proposal was not
adopted in Pennsylvania but was widely read in the Colonies and formed the
inspiration for later proposals.[84] Its provision of keeping and bearing arms
made it every clear that the right protected was to be an individual right:

  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 real danger of public injury from individuals....[85]

  In the Massachusetts Convention similar thoughts were expressed. Delegate
Sedgwick asked whether a standing army "could subdue a nation of freemen, who
know how to prize liberty, and--who have arms in their hands?" [86] Sam Adams,
who had done so much to bring on the revolution, spoke convincingly for the
anti-Federalist position. He called for a bill of rights which would have
provided "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...." [87] Like the Pennsylvania minority,
Adams clearly considered the right of armament as a right of individual
citizens to own personal arms.

  In the following months additional states ratified, bringing the total to
eight. A ninth vote was needed before the necessary majority would be obtained
and the Constitution would become binding upon the states which had ratified
to date. That critical vote was provided individual right could not have been
drafted. The major commercial state--New York--and major intellectual
state--Virginia--still remained to be heard from.

  The Virginia Convention set the record for legal and intellectual talent.
Major participants included Patrick Henry, George Mason, James Madison and
John Marshall. The major writings of the period came from Richard Henry Lee,
who had in the Continental Congress moved the drafting of the Declaration of
Independence. In his "Letters from the Federal Farmer to the Republican" he
warned that Congress might suddenly undermine the strength of the "yeomanry of
the country" who possessed the lands, "possess arms, and are too stron to be
openly offended." [89] He added "This might be done in a great measure by the
Congress, if disposed to do it, by modeling the militia. Shouill be
defenseless." [90] Like others in Connecticut and Pennsylvania, Lee feared a
"select militia" similar to the modern National Guard, which he considered a
betrayal of the militia tradition and similar to  standing army. In strong
terms he advised:

  First, the Constitution ought to secure a genuine, and guard against a
select militia, by providing that the militia shall always be kept well
organized, armed and disci- plined, and include, according to the past and
gneral usage of the states, all men capable of bearing arms, and that all
regulations tending to establish this general useless and defenseless, by
establishing select corps of militia or distinct bodies of military men, not
having permanent attachments in the community, to be avoided.[91]

  He extensively criticized select militia and argued that on the contrary "to
preserve liberty, it is essential that the whole body of people always possess
arms, and be taught alike, especially when young, how to use them. ..." [92]
In the Convention, Patrick Henry seconded Lee's judgments. Henry joined with
Lee--and with Sam Adams and others who defended individual
armament--explaining that "The great object is that every man be armed" and
that "Everyone who is able may have a gun." [93] While Virginia ratified, it
did so with a call for a bill of rights, including a recognition "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." [94]

  From Virginia, the debate moved to New York. The New York controversy gave
rise to the famed "Federalist Papers." Since these were devoted to justifying
adoption of the constitution without a Bill of Rights, they are at best of
marginal utility in interpreting the early amendments to the Constitution.
Even so, their authors stressed citizen armament as a bulwark of liberty which
made adoption of the Constitution safe. Hamilton, no friend of the militia
(and little friend of democracy, for that matter) attacked proposed limits on
standing armies in Federalists 25 and 26. In Federalist 29 he suggested that
militia could not be expected to tolerate much professional training: "little
more can reasonably be aimed at with respect to the people at large than to
have them properly armed and equipped." This armed but untrained citizenry,
together with a select militia would ensure liberty despite a standing army:
"That army can never be formitable to the liberties of the people while there
is a large body of citizens, little if at all inferior to them in discipline
and use of arms . . ."

  Madison in Federalist 46 argued the point at greater length, stressing
citizen armament and state governments as bulwarks of freedom:

  Besides the advantage of being armed, which the Americans possess over the
people, the existence of subordinate governments, to which the people are
attached and by which the militia officers are appointed, forms a barrier
against the enterprises of ambition . . . 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.

  If those people were armed and formed into militia units by subordinate
governments, Madison asserted, "It may be affirmed with the greatest assurance
that the throne of every tyranny in Europe would be speedily overturned in
spite of the legions which surround it." To him citizen armament was not
merely a matter of military service or collective defense, but a guarantee of
all other freedoms, to be used if necessary, against the government.

  New York joined in ratifying, but by an even closer margin than most states:
a shift of two votes out of fifty-seven cast would have rejected the
constitution. It proposed amendments, including a recognition "That the people
have a right to keep and bear arms; that a well-regulated militia, including
the body of the people capable of bearing arms, is the proper, natural, and
safe defense of a free state."

  Only a few weeks later, word came that North Carolina had joined Rhode
Island in rejecting the proposed constitution, citing the lack of a bill of
rights. Among the amendments they called for before the delegates would sign
was a provision identical to the New York and Virginia "Keep and bear arms"
sections.

  The constitution thus went into effect with eleven ratifications. But the
pressing need for a bill of rights was clear. Not only had two states
repudiated the new constitution, but five of the ratifying states had demanded
such a bill and influential minorities in two more had striven unsuccessfully
for it. (While freedom of speech was designated by only three ratifying
states, the right to bear arms was mentioned by all five which called for a
bill of rights, as well as by both groups of minority delegates and the
dissenting North Carolina convention. This constitutional preference poll
would suggest the ratifying conventions considered the right of private
armament to be even more important than free speech.)

  The Constitution carried in New York and eventually in every other state:
but the anti-Federalist sentiment for a bill of rights also triumphed.
Ultimately James Madison was put to the task of drafting a bill of rights.
From the many proposals by the state conventions, he eventually distilled a
limited number of rights deserving specific recognition, protecting the rest
with the "catch-all clauses" of the Ninth and Tenth Amendments. The rights
given express recognition were primarily procedural. Only the First and Second
Amendments created substantive rights and these were a very small number of
rights: speech, press, assembly, and keeping and bearing arms. These were
viewed as the critical matters upon which the federal government might not
infringe, under any conditions (and even by proceeding in accord with the
procedural guarantees of the Fourth, Fifth and Sixth Amendments). Madison's
initial proposal for what became the Second Amendment was worded: "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.

  There is no doubt that Madison saw this as an individual right. His earliest
drafts of the Bill of Rights did not separate those proposals into numbered
amendments which would follow the constitution. Instead, the amendments would
have been inserted into the body of the constitution at specified points.
Madison did not place the right to keep and bear arms as a limitation on
Congress's power over the militia, set out in Article I section 8 of the
constitution. Instead, he grouped the right to arms with rights of freedom of
religion, speech and press, to be inserted "in article first, section nine,
between clauses 3 and 4." [95] This would have put these provisions
immediately following the general limitations of congressional power over
citizens--outlawing suspension of habeas corpus, bills of attainder and ex
post facto laws. Madison viewed his right to keep and bear arms proposal as a
civil right, not a limit on federalization of the militia. Further, in an
outline of a proposed speech on introduction of the Bill of Rights, Madison
mentioned these "relate 1st to private rights," and indicated he meant to
criticize the 1689 Declaration of Rights as too narrow: "No freedom of the
press--conscience--GI. warrants . . . attainders--arms to Protestants."[96]
Apparently, he felt the 1689 recognition that "Protestants may have arms for
their defense" should be extended to all, that the second amendment would
broaden, not narrow, this.

  Like most of his draft, the wording was both lengthy and convoluted. In the
House of Representatives his proposals were edited extensively; since "the
right of the people" was already contained in the provision, the comment that
the militia would consist "of the body of the people" was deleted. The
religious exemption was removed in view of objections that the Congress might
exempt too may people on these grounds and thus destroy the concept of the
militia. When the proposal was submitted to the Senate, it was proposed that
the right be limited to keeping and bearing arms "for the common defense", but
the Senate refused the amendment, retaining it in its broadest form.[97]

  Contemporaries of the first Congress clearly viewed the Second Amendment as
creating an individual right. When St. George Tucker, then a professor at
William and Mary School of Law and later a Justice of the Virginia Supreme
Court, published a five-volume edition of Blackstone's Commentaries in 1803,
he commented that "whenever standing armies are kept up, and the right of the
people to keep and bear arms is, under any color or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of
destruction. In England, the people have been disarmed, generally under the
specious pretext of preserving the game."[98] He criticized the British Bill
of Rights for limiting its guarantee of arms ownership to Protestants, whereas
the American right was "without any qualification as to their condition or
degree, as is the case in the British government."[99] William Rawle in his
1825 "View of the Constitution" suggested that:

  The prohibition is general. No clause in the Constitution could by any rule
of construction be conceived to give to Congress a power to disarm the
people.[100]

  Tucker and Rawle had unique advantages in interpreting the Bill of Rights.
Tucker had fought in the Revolutionary militia and was twice wounded in
action. He was a close friend of Jefferson, an associate of Madison, and had a
brother in the first Senate. Rawle was a friend of Washington and was offered
the post of first Attorney General.

  The Congress itself made its intent clear when the second Congress adopted
the Militia Act of 1792. This required every "free able bodied white male
citizen.... who is or shall be of the age of 18 years, and under the age of 45
years" to be enrolled in the militia and "within six months thereafter,
provide himself with a good musket or firelock," plus ammunition and
equipment.[101] The bill remained on the books until 1903. Thus, from the
subsequent enactments of Congress, as well as the contemporaneous statements
of the drafters and their associates, there can be little doubt that the
drafters of the Second Amendment viewed that amendment as creating an
individual right to keep and carry arms for purposes ranging from self
protection to hunting to acquisition of military skills.

  The right of individual citizens to keep and bear arms found early
recognition by the courts, in a solid chain of precedent stretching forward
for nearly two centuries. In 1813, Kentucky adopted the first general
concealed weapon ban and nine years later the act was struck down as an
invasion of the right to keep and bear arms.[102] Similar statutes were later
upheld in other States--upon the grounds that only one form of carrying, not
all forms, were restricted.[103] The Alabama Supreme Court, for instance,
added:

  We do not desire to be understood as maintaining, that in regulating the
manner of wearing arms, the legislature has no limit other than its own
discretion. A statute which, under the pretence of regulating, amounts to a
destruction of the right, or which requires arms to be so borne as to render
them wholly useless for the purpose of defense would be clearly
unconstitutional.[104]

  Likewise, when Georgia in l937 enacted the first ban on pistol ownership,
its supreme court promptly struck it down, holding in the process that the
second amendment applied to the states. It explained the amendment's meaning:
"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 . . . and this for the
important end to be achieved, the rearing up and qualifying of a
well-regulated militia, so vitally necessary to the security of a free
state."[105]

  Second amendment issues rarely came before the federal courts at this time,
simply because there were no federal controls on arms ownership. But the
position of the United States Supreme Court was indicated in the famed Dred
Scott case, where it held that the free black Americans were not citizens. The
majority indicated that if blacks were regarded as citizens, "entitled to the
privileges and immunities of citizens," they would have freedom of speech and
assembly, "and to keep and carry arms wherever they went." [106]

  Post civil war arms enactments encountered judicial limitations arising at
the individual right to keep and bear arms. Tennessee, for instance, had to
amend its constitution to expressly grant legislative power to "regulate the
wearing of arms." Even so, its 1870 ban on carrying small ("pocket") pistols
barely passed constitutional muster, the court warning that the legislature
might not prohibit the carrying of "all manner of arms" since the power to
regulate "does not fairly mean the power to prohibit."[107] Arkansas upheld a
ban on pistol carrying only by construing it to apply only to pocket pistols
and not to rifles, shotguns, or larger handguns. "To prohibit a citizen from
wearing or carrying a war arm . . . is an unwarranted restriction upon the
constitutional right to keep and bear arms. If cowardly and dishonest men
sometimes shoot unarmed men with army pistols or guns, the evil must be
prevented by the penitentiary and the gallows, and not by a general
deprivation of a constitutional privilege."[108] A similar technique was used
to construe Missouri's 1875 carrying ban to apply only to concealed carry, the
court citing with approval the concept that legislatures might not limit
carrying so as to make the arms useless for defense.[109]

  Nor has recognition of the right to keep and bear arms been lacking in our
century. City bans on handgun carrying have been struck down in North Carolina
("the right to bear arms is a most essential one to every free people and
should not be whittled down by technical constructions")[110] Tennessee,[111]
and New Mexico.[112] The Michigan Supreme Court has stricken a ban on gun
ownership by non-citizens with the comment that "the guarantee of the right of
every person to bear arms in defense of himself means the right to possess
arms for legitimate use in defense of himself (and) his property."[113] A
similar statute was stricken in Colorado, its Supreme Court expressly
rejecting the "collective rights" approach.[114] The U.S. Supreme Court, in
United States v. Miller,[115] held that a court cannot merely take judicial
notice that an arm is within the second amendment's protections, but
explained:

  The Constitution as originally adopted granted to the Congress power "to
provide for calling forth the Militia (etc.) . . ." With obvious purpose to
assure the continuation and render possible the effectiveness of such forces
the declaration and guarantee of the second amendment were made. It must be
interpreted and applied with that end in view.

  The signification attributed to the term "militia" appears from the debates
in the Convention, the history and legislation of the colonies and states, and
the writings of approved commentators. These show plainly enough that the
militia comprised all males physically capable of acting in concert for the
common defense . . . and further, that ordinarily when called for service
these men were expected to appear bearing arms supplied by themselves and of
the kind in common use at the time.

  The right to keep and bear arms has found its most recent recognition in two
1980 decisions in Oregon[116] and Indiana,[117] the first striking down a very
narrow arms possession ban, the second strictly limiting power to refuse
carrying licenses.

  In summary, the right to keep and bear arms is, in all probability, the
oldest right memorialized in the Bill of Rights. Its common law right extends
beyond our written records forward to the 1689 Declaration of Rights--so
largely a response to individual disarmament under laws of the 1660's--and to
our own Revolution, brought on primarily by British attempts at disarmament of
the colonists. The recognition of the right in our own Bill of Rights is a
natural outgrowth of that experience and of demands for preservation of a
clearly individual right to own and carry arms. It is a right reserved to "the
people"--the same "people" who possess the right to assemble, and security
from unreasonable searches and seizures, the "people" whom the tenth amendment
distinguishes from "the states." It is clearly not a right relating solely to
the National Guard, which had no legal recognition prior to 1903, and whose
18th century predecessors were criticized by Richard Henry Lee and other
constitutional figures as equal in danger to standing armies. Rather, it is a
right reserved to individual citizens, to possess ("keep") and carry ("bear")
arms for personal and political defense of themselves and their rights.

                        REFERENCES

1.  3 W. Churchill, A History of the English Speaking Peoples 168 (1957). E.
W. Williams, The Eighteenth Century Constitution 399-401 (Cambridge University
1960). Despite existence of this censorship, freedom of press was completely
omitted from the 1688 "Declaration of Rights."

2.  1 John Tebbel, A History of Book Publishing in the United States 45
(1972).

3.  In 1763, to be precise, when John Wilkes won substantial civil awards
against ministers who issued general warrants for search and arrest of those
responsible for an alleged seditious libel. G. Rude, Wilkes and Liberty 27-29
(1962), Churchill supra, at 165-67. "From the "Glorious Revolution onwards,
Secretaries of State had for nearly a hundred years, been issuing similar
warrants . . . and, until April 1763, their validity had never been challenged
in a Court of law." Rude, supra, at 29.

4.  Charles Hollister Anglo-Saxon Military Institutions 27 (Oxford University
1962). Hollister's excellent study is matched only by Brooks, "The Development
of Military Obligations in Eighth and Ninth Century England," in England
before the Conquest 69 (Clemoes and Hughes, ed. Cambridge University 1971).

5.  William Blackstone, Commentaries on the Common Law of England, Book 1
Ch.XIII; 1 J. Bagley & P. Rowley, a Documentary History of England 1066-1540,
at p.152.

6.  H. W. C. Davis, England Under the Normans and Angevins 75 (1957).

7.  1 Francis Grose, Military Antiquities Respecting a History of the British
Army 9-11 (London, 1812). "Assize" was a term which had several meanings in
medieval law. In this sense it signified a proclamation or piece of
legislation which was intended to modify or expand traditional law, rather
than simply construe it--the earliest form of what we today would consider
true legislation. W. L. Warren, Henry II, at 281 (1973).

8.  Bagley & Rowley, supra, at 155-56.

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

10.  Robert Hardy, The Longbow: A Social and Military History of 129 (1977).

11. Id.

12.  Id. at 128. These price limitations would be repeated through to the
reign of Henry VIII, along with requirements for import of longbows and quotas
on less expensive longbows.

13.  7 Edward I c.2 (1279).

14.  1 Statutes of the Realm 151, 230 (London, 1810).

15.  2 Edw.III c.3 (1328).

16.  1 W. Hawkins, Pleas of the Crown 267 (6th ed. 1788). See also Rex V.
Knight 87 Eng Rep. 75 (King's Bench 1686); Rex V. Dewhurst, 1 State Trails
(New Series) 529 (1820).

17.  L. Kennet & J. Anderson, The Gun in America 12, 15 (1975); N. Perrin,
Giving Up the Gun 58 (1975).

18.  19 Henry VI c.4 (1503).

19.  3 Henry VIII c.3, 13 (1511).

20.  6 Hen.VIII c.13 (1514).

21.  14 & 15 Hen. VIII c.7 (1523).

22.  33 Hen. VII c.6 (1541).

23.  Perrin, supra, at 59-60.

24.  "Thai gon crokyd, and ben feble, not able to fight, nor to defend ye
realm, nor thai have wepen, nor money to bie thaim wepen withall." Sir John
Fortescue, The Governance of England 114 (C. Plummer, ed., Oxford, 1885). The
Venetian ambassador to France confirmed this in a 1537 report of peasants
taken into military service: "They were brought up in slavery, with no
experience of handling weapons, and since they have suddenly passed from total
servitude to freedom, sometimes they no longer want to obey their master." 1
R. Laffont, The Ancient Art of Warfare 485 (1966).

25.  Jim Hill, The Minutemen in War and Peace 26-27 (1968). "Militia" was
apparently derived from the French word "milice" which in turn can be related
to the Latin term "miles", or soldier.

26.  The foremost study of the militia system under Elizabeth is Lindsay
Boynton, The Elizabethan Militia (1967).

27.  C. G. Cruickshank, Elizabeth's Army 24-25 (2d ed. 1968).

28.  Richard Ollard, This War Without an Enemy 53 (1976).

29.  See generally Correlli Barnett, Britain's Army 89-90 (1970); Charles
Firth, Cromwell's Army (1962).

30.  Michael Gruber, The English Revolution 125 (1967), Barnett, supra, at
107.

31.  John Childs, The Army of Charles II at 9 (1976).

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

33.  8 Calendar of State Papers (Domestic), Charles II, No. 188, p. 150 (July,
1660).

34.   J. R. Western, The English Militia in the Eighteenth Century 11-13
(1965).

35.  14 Car.II c.3 (1662). The political background of the passage of this
enactment is discussed in Western, supra, at 11.

36.  A few examples: "Think Fauntleroy an untoward fellow, arms for thirty or
forty were found in his house last year" (68 Calendar of State Papers
(Domestic) Charles II, No. 35, p. 44 (February, 1662), [Jacob Knowles,
arrested for] "dangerous designs, he having been taken on the guard with a
pistol upon him," (70 Calendar of State Papers (Domestic), Charles II, No. 13,
p. 83 (March, 1662); "Hearing of a nonconformist meeting, issued warrant for
the search of arms; the officers being denied entrance broke open the doors,
and found 200 or 300 persons." (88 Calendar of State Papers (Domestic),
Charles II, No. 56, p. 332).

37.  22 & 23 Car. II, c.25 (1671).

38.  Andrew Browning, English Historical Documents 1660-1714, at 81 (1953).

39.  2 Calendar of State Papers (Domestic), James II, No. 1212 at p. 314
(December, 1686).

40.  3 Thomas Macaulay, The History of England in the Accession of Charles II,
136-37 (London, 1856).

41.  1 Gul. & Mar., sess. 2, c.2 (1689).

42.  James Jones, The Revolution of 1688 in England 316-317 (London, 1972).

43.  L. Brevold & R. Ross, The Philosophy of Edmund Burke 192 (1970).

44.  1 Gul. & Mar., sess. 2, c.2 (1689).

45.  Joyce Malcolm, Disarmed: The Loss of the Right to Bear Arms in
Restoration England 16 (Mary Ingraham Bunting Institute, Radcliffe College,
1980).

46.  See Rohner, "The Right to Bear Arms: A phenomenon of Constitutional
History," 16 Cath. U. L.Rev. 53, 59 (1966).

47.  2 Philip, Earl of Hardwicke, Miscellaneous State Papers From 1501-1726,
at 407-417 (London, 1778).

48.  Journal of the House of Commons From December 26, 1688 to October 26,
1693, at 5, 6, 21-22 (London 1742).

49.  Western, supra, at 339.

50.  Journal of the House of Commons, supra, at 25.

51.  Western, supra, at 339.

52.  Algernon Sidney, Discourses Concerning Government 156(3d ed., London
1751) (Library of Congress, Rare Books Collection).

53.  Robert Molesworth, An account of Denmark as it Was in The Year 1692, at
123 (London, 1692; reprinted, Copenhagen, 1976).

54.  Francis Hotoman, Franco-Gallia XXVIII (Tr. by Robert Molesworth, 1721)
(Library of Congress, Rare Books Collection).

55.  But a few examples: in 1773 Harvard's library contained Harrington and
Molesworth, Sidney was added by l790. The College of New Jersey (today
Princeton) boasted Sidney by 1760, as did the New York Society Library. John
Adams' private library contained a two volume edition of Sidney and
Molesworth; Jefferson at various times bought several different editions of
both authors. H. Colbourn, The Lamp of Experience 200-18 (1965).

56.  Clinton Rossiter, The Political Thought of The American Revolution 55
(1963).

57.  Barnett, supra, at 174.

58.  30 Geo. II c.2 (1757). This power was invoked during the waves of rioting
which spread across the English nation in 1766. Tony Hayter, The Army and The
Crowd in Mid-Georgian England 158 (1978).

59.  The North British Intelligencer, Vol. 1 at p.20 (Edinburgh, 1776).
(Library of Congress Rare Books Collection).

60.  Harold Gill, The Gunsmith in Colonial Virginia 3 (1974).

61.  1 William Hening, The Statutes at Large: Being a Collection of All The
Laws of Virginia From The First Session of The Legislature in The Year 1619,
at 127 (New York 1823).

62.  Id at 173-74.

63.  William Brigham, The Compact With The Charter and Laws of The Colony of
New Plymouth 31 (Boston, 1836).

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

65.  Id. at 79.

66.  1 William Gordon, The History of The Rise, Progress and Establishment of
The Independence of The United States 442-43 (London, 1788). (Library of
Congress Rare Books Collection).

67.  John Alden, General Gage in America 224 (1948).

68.  Stephen Patterson, Political Parties in Revolutionary Massachusetts 103
(1973).

69.  Id.

70.  Id. at 104-05, Gavin, supra, at 64.

71.  1 Kate Rowland, The Life of George Mason 181, 430-32 (1892).

72.  Id. at 182-83; Donald Higginbotham, "The American Militia: A Traditional
Institution With Revolutionary Responsibilities," in Reconsiderations on The
Revolutionary War 92 (1978).

73.  Rowland, supra, at 183, 427-28.

74.  Hezekiah Miles, Republication of The Principles and Acts of The
Revolution in America 278 (New York 1876).

75.  1 The Political Writings of Thomas Paine at 111 (Boston, 1856).

76.  Charles Flood, Rise and Fight Again 61 (1976).

77.  Willard Wallace, Appeal to Arms 43 (1951); Joe Huddleston, Colonial
Riflemen in The American Revolution 25 (1978).

78.  I. Christie, Crisis of Empire 106 (1966).

79.  Higginbotham, supra, at 103.

80.  The best study of these proposals is John McAuley Palmer's Washington,
Lincoln, Wilson: Three War Statesmen (1930). Palmer was responsible for
locating Washington's militia plan, which had been missing from Congressional
archives for over a century.

81.  3 Merrill Jensen, ed., The Documentary History of The Ratification of The
Constitution 378 (1976).

82.  Noah Webster, An Examination Into The Leading Principles of The Federal
Constitution Proposed by The Late Convention, reprinted in Paul Ford, ed.,
Pamphlets on The Constitution of The United States 56 (New York, 1888).

83.  2 Jensen, supra, at 508.

84.  E. Dumbauld, The Bill of Rights and What It Means Today 11 (1959).

85.  2 Jensen, supra, at 597-98.

86.  2 Jonathan Elliot, ed., Debates in The Several State Conventions on The
Adoption of The Federal Constitution 97 (2d ed. 1888).

87.  Paul Lewis, The Grand Incendiary 359-60 (1973).

88.  Joseph Walker, Birth of The Federal Constitution: A History of The New
Hampshire Convention 51 (Boston, 1888); Documents Illustrative of The
Formation of The Union of The American States 1026 (House of Representatives
Document 398: Government Printing Office 1927).

89.  Walter Bennett, ed., Letters From The Federal Farmer to The Republican 21
(1978).

90.  Id. at 21-22.

91.  Id.at 124.

92.  Id.

93.  Debates and Other Proceedings of The Convention of Virginia . . . taken
in shorthand by David Robertson of Petersburg, 275 (2nd ed., Richmond, 1805).

94.  Documents Illustrative of The Formation of The Union, supra, at 1030.

[95, 96 missing]

97.  See generally, 1 J. Goebel, History of the Supreme Court of the United
States 456 ( ). [parentheses empty in original]

98.  1 S. Tucker, ed., Blackstone's Commentaries 300 (Philadelphia, 1803).

99.  Id. at 143.

100.  W. Rawle, A View of the Constitution 125-6 (2d ed. 1829).

101.  Act of May 8, 1792. See generally J. Mahony, The American Militia:
Decade of Decision (1960).

102.  Bliss v. Commonwealth, 12 Ky. 90 (1822).

103.  State v. Mitchell, 3 Ind. (Blackf.) 229 (1839). State v. Reid, 1 Ala.
612 (1840); State v. Buzzard, 4 Ark. 18 (1842)

104.  State v. Reid, supra.

105.  Nunn v. State, 1 Ga. 243, 251(1846).

106.  Dred Scott v. Sanford, 60 U.S. 393, 417 (1857)

107.  Andrew v. State, 50 Tenn. 165, 8 Am. Rep. 8 (1971). The Andrews Court
went on to note that "this right was intended . . . to be exercised and
enjoyed by the citizen as such, and not by him as a soldier . . ." 8 AM. Rep.
at 17.

108.  Wilson v. State, 33 Ark. 557, 34 Am. Rep. 52 (1878).

109.  State v. Wilforth, 85 Mo. 528, 530 (1882).

110.  State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921).

111.  Glasscock v. City of Chattanooga, 157 Tenn. 518, 11 S.W. 2d. 678 (1928).

112.  City of Las Vegas v. Moberg, 82 N.M. 626, 485 P. ad 737 (1971) ("an
ordinance may not deny the people the constitutionally guaranteed right to
bear arms.")

 113.  People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1923).

 114.  People v. Nakamura, 99 Colo. 262, 62, P. 2d 246 (1936).

 115.  United States v. Miller, 307 U.S. 175, 178-79 (1939).

 116.  State v. Kessler, 289 Ore. 359, 614 p. 2d 94 (1980).

 117.  Schubert v. DeBard, ------ Ind. App. ------, 398 NE2d  1139 (1980).

                    BIOGRAPHIC SKETCH

  David T. Hardy received his Bachelor of Arts degree from the University of
Arizona where he graduated cum laude in 1972. He received his Juris Doctorate
from the University of Arizona College of Law in 1975. He graduated magna cum
laude and served as Associate Editor of the Arizona Law Review from 1974 to
1975. Mr. Hardy is a member of the Bar of the Supreme Court of the United
States, the Fourth and Ninth Circuit U.S. Courts of Appeals, and the Arizona
Supreme Court, and is a partner in the law firm of Sando and Hardy, Tucson,
Arizona. He serves on the Legal Advisory Board of the Second Amendment
Foundation, is a member of the American Civil Liberties Union and the National
Rifle Association.

  Mr. Hardy has written extensively in the area of law and firearms
regulation. He is the co-author of a lengthy article titled: "Of Arms and the
Law," 51 Chicago-Kent Law Review 62 (1974), author of "Firearms Ownership and
Regulation," 20 Wm. & Mary L. Rev. 235 (1978) and "Gun Laws and Gun
Collectors," 85 Case & Comment 3 (Jan.-Feb. 1978). He would like to
acknowledge, with gratitude, the assistance of Bob Dowlut, Frances Averly, and
Barbara Goldman in preparation of this report.

                        (67)



THE FOURTEENTH AMENDMENT AND THE RIGHT TO KEEP AND BEAR ARMS: THE INTENT OF
THE FRAMERS

By Stephen P. Halbrook*

  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.--U.S.
Const. amend. II.

  No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.--U.S.
Const. amend. XIV, 1.

  If African Americans were citizens, observed Chief Justice Taney in Dred
Scott v. Sandford,[1] "it would give to persons of the negro race . . . the
full liberty of speech...; to hold public meetings upon political affairs, and
to keep and carry arms wherever they went." [2] If this interpretation ignores
that Articles I and II of the Bill of Rights designate the respective freedoms
guaranteed therein to "the people" and not simply the citizens (much less a
select group of orators or militia), contrariwise Dred Scott followed
antebellum judicial thought in recognizing keeping and bearing arms as an
individual right[3] protected from both federal and state infringement.[4] The
exception to this interpretation were cases holding that the Second Amendment
only protected citizens[5] from federal, not state,[6] infringement of the
right to keep and bear arms, to provide judicial approval of laws disarming
black freemen and slaves.

  Since the Fourteenth Amendment was meant to overrule Dred Scott by extending
individual constitutional rights to black Americans and by providing
protection thereof against state infringement,[7] the question arises whether
the framers of Amendment XIV and related enforcement legislation recognized
keeping and bearing arms as individual right on which no state could infringe.
The congressional intent in respect to the Fourteenth Amendment is revealed in
the debates over both Amendments XIII and XIV as well as the Civil Rights Act
of 1866, the Anti-KKK Act of 1871, and the Civil Rights Act of 1875. Given the
unanimity of opinion concerning state regulation of privately held arms by the
legislators who framed the Fourteenth Amendment and its enforcement
legislation, it is surprising that judicial opinions and scholarly articles
fail to analyze the Reconstruction debates.[8]

                A. ARMS AND SLAVERY

  Having won their national independence from England through armed struggle,
post-Revolutionary War Americans were acutely aware that the sword and
sovereignty go hand in hand, and that the firearms technology ushered in a new
epoch in the human struggle for freedom. Furthermore, both proponents and
opponents of slavery were cognizant that an armed black population meant the
abolition of slavery, although plantation slaves were often trusted with arms
for hunting.[9] This sociological fact explained not only the legal disarming
of blacks but also the advocacy of a weapons culture by abolitionists. Having
employed the instruments for self-defense against his pro-slavery attackers,
abolitionist and Republican Party founder Cassius Marcellus Clay wrote that "
'the pistol and the Bowie knife' are to us as sacred as the gown and the
pulpit."[10] And it was John Brown who argued that "the practice of carrying
arms would be a good one for the colored people to adopt, as it would give
them a sense of their manhood."[11]

  The practical necessities of the long, bloody Civil War, demanding every
human resource, led to the arming of blacks as soldiers. While originally they
considered it a "white man's war," Northern authorities by 1863 were
organizing black regiments on a wide scale. At the same time, black civilians
were forced to arm themselves privately against mob violence. During the
anti-draft riots in New York, according to a Negro newspaper of the time, "The
colored men who had manhood in them armed themselves, and threw out their
pickets every day and night, determined to die defending their homes.... Most
of the colored men in Brooklyn who remained in the city were armed daily for
self-defense."[12]

  Toward the end of the war Southerners began to support the arming and
freeing of slaves willing to fight the invaders, and the Virginia legislature,
on passing a bill providing for the use of black soldiers, repealed its laws
against the bearing of arms by blacks.[13] One opponent of these measures
declared: "What would be the character of the returned negro soldiers, made
familiar with the use of fire-arms, and taught by us, that freedom was worth
fighting for?"[14] Being evident that slaves plus guns equaled abolition, the
rebels were divided between those who valued nationhood to slavery and those
who preferred a restored union which might not destroy the servile condition
of black labor.

  As the movement began before the end of the war for the complete abolition
of slavery via the Thirteenth Amendment, members of the U.S. Congress
recognized the key role that the bearing of arms was already playing in the
freeing of the slaves. In debate over the proposed Amendment, Rep. George A.
Yeaman (Unionist, Ky.) contended that whoever won the war, the abolition of
slavery was inevitable due to the arming of blacks:

  Let proclamations be withdrawn, let statutes be repealed, let our armies be
defeated, let the South achieve its independence, yet come out of the war . .
. with an army of slaves made freemen for their service, who have been
contracted with, been armed and drilled, and have seen the force of
combination. Their personal status is enhanced.... They will not be returned
to slavery.[15]

  At the same time, members of the slavocracy were planning to disarm the
freedmen. Arguing for speedy adoption of the Thirteenth Amendment, Rep.
William D. Kelley (R., Penn.) expressed shock at the words of an
anti-secessionist planter in Mississippi who expected the union to restore
slavery. Kelley cited a letter from a U.S. brigadier general who wrote: "
'What,' said I, 'these men who have had arms in their hands?' 'Yes,' he said,
'we should take the arms away from them, of course.' "[16]

  The northern government won the war only because of the arming of the
slaves, according to Sen. Charles Sumner (R., Mass.), who argued that
necessity demanded "first, that the slaves should be declared free; and
secondly, that muskets should be put into their hands for the common
defense.... Without emancipation, followed by the arming of the slaves, rebel
slavery would not have been overcome."[17]

        B. THE CIVIL RIGHTS ACT OF 1866

  After the war was concluded, the slave codes, which limited access of blacks
to land, to arms, and to the courts, began to reappear in the form of the
black codes,[18] and United States legislators turned their attention to the
protection of the freedmen. In support of Senate Bill No. 9, which declared as
void all laws in the rebel states which recognized inequality of rights based
on race, Sen. Henry Wilson (R., Mass.) explained in part: "In Mississippi
rebel State forces, men who were in the rebel armies, are traversing the
State, visiting the freedmen disarming them, perpetrating murders and outrages
on them...."[19]

  When Congress took up Senate Bill No. 61, which became the Civil Rights Act
of 1866,[20] Sen. Lyman Trumbull (R., Ill.), Chairman of the Senate Judiciary
Committee, indicated that the bill was intended to prohibit inequalities
embodied in the black codes, including those provisions which "prohibit any
negro or mulatto from having fire-arms."[21] In abolishing the badges of
slavery, the bill would enforce fundamental rights against racial
discrimination in respect to civil rights, the rights to contract, sue and
engage in commerce, and equal criminal penalties. Sen. William Saulsbury (D.,
Del.) added: "In my State for many years, and I presume there are similar laws
in most of the southern States, there has existed a law of the State based
upon and founded in its police power, which declares that free negroes shall
not have the possession of firearms or ammunition. This bill proposes to take
away from the States this police power...." The Delaware Democrat opposed the
bill on this basis, anticipating a time when "a numerous body of dangerous
persons belonging to any distinct race" endangered the state, for "the State
shall not have the power to disarm them without disarming the whole
population."[22] Thus, the bill would have prohibited legislative schemes
which in effect disarmed blacks but not whites. Still, supporters of the bill
were soon to contend that arms bearing was a basic right of citizenship or
personhood.

  In the meantime, the legislators turned their attention to the Freedmen's
Bureau Bill. Rep. Thomas D. Eloit (R., Mass.) attacked an Opelousas, Louisiana
ordinance which deprived blacks of various civil rights, including the
following provision: "No freedman who is not in the military service shall be
allowed to carry firearms, or any kind of weapons, within the limits of the
town of Opelousas without the special permission of his employer . . . and
approved by the mayor or president of the board of police."[23] And Rep.
Josiah B. Grinnell (R., Iowa) complained: " A white man in Kentucky may keep a
gun; if a black man buys a gun he forfeits it and pays a fine of five dollars,
if presuming to keep in his possession a musket which he has carried through
the war."[24] Yet the right of blacks to have arms existed partly as
self-defense against the state militia itself, which implied that militia
needs were not the only constitutional bases for the right to bear arms. Sen.
Trumbull cited a report from Vicksburg, Mississippi which stated: "Nearly all
the dissatisfaction that now exists among the freedmen is caused by the
abusive conduct of this militia."[25] Rather than restore order, the militia
would typically "hang some freedman or search negro houses for arms."[26] As
debate returned to the Civil Rights Bill, Rep. Henry J. Raymond (R., N.Y.)
explained of the rights of citizenship: "Make the colored man a citizen of the
United States and he has every right which you or I have as citizens of the
United States under the laws and Constitution of the United States.... He has
a defined status; he has a country and a home; a right to defend himself and
his wife and children, a right to bear arms ...."[27] Rep. Roswell Hart (R.,
N.Y.) further states: "The Constitution clearly describes that to be a
republican form of government for which it was expressly framed. A government
. . . where 'no law shall be made prohibiting a free exercise of religion;'
where 'the right of the people to keep and bear arms shall not be infringed;'
...."[28] He concluded that it was the duty of the United States to guarantee
that the states have such a form of government.[29]

  Rep. Sidney Clarke (R., Kansas) referred to an 1866 Alabama law providing:
"That it shall not be lawful for any freedman, mulatto or free person of color
in this State, to own firearms, or carry about his person a pistol or other
deadly weapon."[30] This same statute made it unlawful "to sell, give, or lend
fire-arms to ammunition of any description whatever, to any freedman, free
negro, or mulatto. . . ."[31] Clarke also attacked Mississippi, "whose rebel
militia, upon the seizure of the arms of black Union Soldiers, appropriated
the same to their own use."[32]

  Sir, I find in the Constitution of the United States an article which
declares that "the right of the people to keep and bear arms shall not be
infringed." For myself, I shall insist that the reconstructed rebels of
Mississippi respect the Constitution in their local laws ....[33]

  Emotionally referring to the disarming of black soldiers, Clarke added:

  Nearly every white man in that State that could bear arms was in the rebel
ranks. Nearly all of their able-bodied colored men who could reach our lines
enlisted under the old flag. Many of these brave defenders of the nation paid
for the arms with which they went to battle.... The "reconstructed" State
authorities of Mississippi were allowed to rob and disarm our veteran soldiers
. . . .[34]


In sum, Clarke presupposed a constitutional right to keep privately held arms
for protection against oppressive state militia.

             C. THE FOURTEENTH AMENDMENT

  The need for a more solid foundation for the protection of freedmen as well
as white citizens was recognized, and the result was a significant new
proposal--the Fourteenth Amendment. A chief exponent of the amendment, Sen.
Jacob M. Howard (R., Mich.), referred to "the personal rights guaranteed and
secured by the first eight amendments of the Constitution; such as freedom of
speech and of the press; ... the right to keep and to bear arms...."[35]
Adoption of the Fourteenth Amendment was necessary because presently these
rights were not guaranteed against state legislation. "The great object of the
first section of this amendment is, therefore, to restrain the power of the
States and compel them at all times to respect these great fundamental
guarantees."[36]

  The Fourteenth Amendment was viewed as necessary to buttress the objectives
of the Civil Rights Act of 1866. Rep. George W. Julian (R., Ind.) noted that
the act

  Is pronounced void by the jurists and courts of the South. Florida makes it
a misdemeanor for colored men to carry weapons without a license to do so from
a probate judge, and the punishment of the offense is whipping and the
pillory. South Carolina has the same enactments . . . Cunning legislative
devices are being invented in most of the States to restore slavery in
fact.[37]

  It is hardly surprising that the arms question was viewed as part of a
partisan struggle. "As you once needed the muskets of the colored persons, so
now you need their votes," Sen. Sumner explained to his fellow Republicans in
support of black suffrage in the District of Columbia.[38] At the opposite
extreme, Rep. Michael C. Kerr (D., Ind.) an opponent of black suffrage and of
the Fourteenth Amendment, attacked a military ordinance in Alabama that set up
a volunteer militia of all males between ages 18 and 45 "without regard to
race or color" on these grounds:

  Of whom will that militia consist? Mr. Speaker, it will consist only of the
black men of Alabama. The white men will not degrade themselves by going into
the ranks and becoming a part of the militia of the State with negroes.... Are
the civil laws of Alabama to be enforced by this negro militia? Are white men
to be disarmed by them?[39]

  Kerr predicted that the disfranchisement of white voters and the above
military measure would result in "a war of races."[40]

                D. THE ANTI-KKK ACT

  Although the Fourteenth Amendment became law in 1868, within three years the
Congress was considering enforcement legislation to suppress the Ku Klux Klan.
The famous report by Rep. Benjamin F. Butler (R., Mass.) on violence in the
South assumed that the right to keep arms was necessary for protection against
the militia but also against local law enforcement agencies. Noting instances
of "armed confederates" terrorizing the negro, the report stated that "in many
counties they have preceded their outrages upon him by disarming him, in
violation of his right as a citizen to 'keep and bear arms,' which the
Constitution expressly says shall never be infringed."[41] The congressional
power based on the Fourteenth Amendment to legislate to prevent states from
depriving any U.S. citizen of life, liberty, or property justified the
following provision of the committee's anti-KKK bill:

  That whoever shall, without due process of law, by violence, intimidation,
or threats, take away or deprive any citizen of the United States of any arms
or weapons he may have in his house or possession for the defense of his
person, family, or property, shall be deemed guilty of a larceny thereof, and
be punished as provided in this act for a felony.[42]

  Rep. Butler explained the purpose of this provision in these words:

  Section eight is intended to enforce the well-known constitutional provision
guaranteeing the right in the citizen to "keep and bear arms," and provides
that whoever shall take away, by force or violence, or by threats and
intimidation, the arms and weapons which any person may have for his defense,
shall be deemed guilty of larceny of the same. This provision seemed to your
committee to be necessary, because they had observed that, before these
midnight marauders made attacks upon peaceful citizens, there were very many
instances in the South where the sheriff of the county had preceded them and
taken away the arms of their victims. This was specially noticeable in Union
County, where all the negro population were disarmed by the sheriff only a few
months ago under the order of the judge...; and then, the sheriff having
disarmed the citizens, the five hundred masked men rode at night and murdered
and otherwise maltreated the ten persons who were in jail in that county.[43]

  The bill was referred to the Judiciary Committee, and when later reported as
H.R. No. 320 the above section was deleted--probably because its proscription
extended to simple individual larceny over which Congress had no
constitutional authority, and because state or conspiratorial action involving
the disarming of blacks would be covered by more general provisions of the
bill. Supporters of the rewritten anti-KKK bill continued to show the same
concern over the disarming of freedmen. Sen. John Sherman (R., Ohio) stated
the Republican position: "Wherever the negro population preponderates, there
they [the KKK] hold their sway, for a few determined men . . . can carry
terror among ignorant negroes . . . without arms, equipment, or discipline."
[44]

  Further comments clarified that the right to arms was a necessary condition
for the right of free speech. Sen. Adelbert Ames (R., Miss.) averred: "In some
counties it was impossible to advocate Republican principles, those attempting
it being hunted like wild beasts; in other, the speakers had to be armed and
supported by not a few friends."[45] Rep. William L. Stoughton (R., Mich.)
exclaimed: "If political opponents can be marked for slaughter by secret bands
of cowardly assassins who ride forth with impunity to execute the decrees upon
the unarmed and defenseless, it will be fatal alike to the Republican party
and civil liberty." [46]

  Section 1 of the bill, which was taken partly from Section 2 of the Civil
Rights Act of 1866 and survives today as 42 U.S.C.  1983, was meant to enforce
Section 1 of the Fourteenth Amendment by establishing a remedy for deprivation
under color of state law of federal constitutional rights of all people, not
only former slaves. This portion of the bill provided:

  That any person who, under color of any law, statute, ordinance, regulation,
custom, or usage of any State, shall subject, or cause to be subjected, any
person within the jurisdiction of the United States to the deprivation of any
rights, privileges, or immunities to which . . . he is entitled under the
Constitution or laws of the United States, shall . . . be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress. . . .[47]

  Rep. Washington C. Whitthorne (D. Tenn.), who complained that "in having
organized a negro militia, in having disarmed the white man," the Republicans
had "plundered and robbed" the whites of South Carolina through "unequal
laws," objected to Section 1 of the anti-KKK bill on these grounds:

  It will be noted that by the first section suits may be instituted without
regard to amount or character of claim by any person within the limits of the
United States who conceives that he has been deprived of any right, privilege,
or immunity secured him by the Constitution of the United States, under color
of any law, statute, ordinance, regulation, custom, or usage of any State.
This is to say, that if a police officer of the city of Richmond or New York
should find a drunken negro or white man upon the streets with a loaded pistol
flourishing it, &c., and by virtue of any ordinance, law, or usage, either of
city or State, he takes it away, the officer may be sued, because the right to
bear arms is secured by the Constitution, and such suit brought in distant and
expensive tribunals.[48]

  The Tennessee Democrat assumed that the right to bear arms was absolute,
deprivation of which created a cause of action against state agents under
Section 1 of the anti-KKK bill. In the minds of the bill's supporters,
however, the Second Amendment as incorporated in the Fourteenth Amendment
recognized a right to keep and bear arms safe from state infringement, not a
right to commit assault or otherwise engage in criminal conduct with arms by
pointing them at people or wantonly brandishing them about so as to endanger
others. Contrary to the congressman's exaggerations, the proponents of the
bill had the justified fear that the opposite development would occur, i.e.,
that a black or white man of the wrong political party would legitimately have
or possess arms and a police officer of the city of Richmond or New York who
was drunken with racial prejudice or partisan politics would take it away,
perhaps to ensure the success of an extremist group's attack. Significantly,
none of the representative's colleagues disputed his assumption that state
agents could be sued under the predecessor to  1983 for deprivation of the
right to keep arms.

  Rep. William D. Kelly (R., Penn.), speaking after and in reply to Rep.
Whitthorne, did not deny the argument that Section 1 allowed suit for
deprivation of the right to possess arms, but emphasized the arming of the
KKK. He referred to "great numbers of Winchester rifles, and a particular
species of revolving pistol" coming into Charleston's ports. "Poor men,
without visible means of support, whose clothes are ragged and whose lives are
almost or absolutely those of vagrants, are thus armed with new and costly
rifles, and wear in their belts a brace of expensive pistols."[49] These
weapons were used against Southern Republicans, whose constitutional rights
must thereby be guaranteed by law and arms.

  However, like Congressman Whitthorne, Rep. Barbour Lewis (R., Tenn.) also
decried the loss of state agent's immunity should the bill pass: "By the first
section, in certain cases, the judge of a State court, though acting under
oath of office, is made liable to a suit in the Federal Court and subject to
damages for his decision against a suitor, however honest and conscientious
that decision may be; and a ministerial officer is subject to the same pains
and penalties...."[50] Tennessee Republicans and Democrats alike thus agreed
that what is today  1983 provided an action for damages against state agents
in general for deprivation of constitutional rights.

  Debate over the anti-KKK bill naturally required exposition of Section 1 of
the Fourteenth Amendment, and none was better qualified to explain that
section than its draftsman, Rep. John A. Bingham (R., Ohio):

  Mr. Speaker, that the scope and meaning of the limitations imposed by the
first section, fourteenth amendment of the Constitution may be more fully
understood, permit me to say that the privileges and immunities of citizens of
a State, are chiefly defined in the first eight amendments to the constitution
of the United States. Those eight amendments are as follows:

                        ARTICLE I

  Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

                        ARTICLE II

  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....
[Amendments III-VIII, also listed by Bingham, are here omitted.]

  These eight articles I have shown never were limitations upon the power of
the States, until made so by the Fourteenth Amendment. The words of that
amendment, "no State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States," are an express
prohibition upon every State of the Union.... [51]

  This is a most explicit statement of the incorporation thesis by the
architect of the Fourteenth Amendment. Although he based the incorporation on
the privileges and immunities clause and not the due process clause as did
subsequent courts of selective incorporation, Rep. Bingham could hardly have
anticipated the judicial metaphysics of the twentieth century in this respect.
In any case, whether based on the due process clause or on the privileges and
immunities clause, the legislative history supports the view that the
incorporation of Amendments I-VIII was clear and unmistakable in the minds of
the framers of Amendment XIV.

  In contrast with the above legal analysis, some comments on the enforcement
of the Fourteenth Amendment returned to discussion of power struggle between
Republicans and unreconstructed Confederates. While Republicans deplored the
armed condition of white Southerners and the unarmed state of black
Southerners, Democrats argued that the South's whites were disarmed and
endangered by armed carpetbaggers and negro militia. Thus, Rep. Ellis H.
Roberts (R., N.Y.) lamented the partisan character of KKK violence: "The
victims whose property is destroyed, whose persons are mutilated, whose lives
are sacrificed, are always Republicans. They may be black or white...." Of the
still rebellious whites: "Their weapons are often new and of improved
patterns; and however poor may be the individual member he never lacks for
arms or ammunition.... In many respects the Ku Klux Klan is an army, organized
and officered, and armed for deadly strife."[52]

  Rep. Boyd Winchester (D., Ky.) set forth the contrary position, favorably
citing a letter from an ex-governor of South Carolina to the reconstruction
governor regretting the latter's "Winchester rifle speech" which "fiendishly
proclaimed that this instrument of death, in the hands of the negroes of South
Carolina, was the most effective means of maintaining order and quiet in the
State."[53] Calling on the governor to "disarm your militia," the letter
referred to the disaster which resulted "when you organized colored troops
throughout the State, and put arms into their hands, with powder and ball, and
denied the same to the white people."[54] The letter proceeded to cite
numerous instances where the "colored militia" murdered white people.
According to Rep. Winchester, it was the arming of blacks and disarming of
whites which resulted in white resistance. "It would seem that wherever
military and carpetbagger domination in the South has been marked by the
greatest contempt for law and right, and practiced the greatest cruelty toward
the people, Ku Klux operations have multiplied." [55]

  An instance of black Republican armed resistance to agents of the state who
were in the Klan was recounted in a letter cited by Rep. Benjamin F. Butler:

  Then the Ku Klux fired on them through the window, one of the bullets
striking a colored woman . . . and wounding her through the knee badly. The
colored men then fired on the Ku Klux, and killed their leader or captain
right there on the steps of the colored men's house.... There he remained
until morning when he was identified, and proved to "Pat Inman," a constable
and deputy sheriff: . . . [56]

  By contrast, Rep. Samuel S. Cox (D., Ohio) assailed those who "arm negro
militia and create a situation of terror," exclaimed that South Carolinians
actually clamored for United States troops to save them from the rapacity and
murder of the negro bands and their white allies," and saw the Klan as their
only defense: "Is not repression the father of revolution?" The congressman
compared the Klan with the French Jacobins, Italian Carbonari, and Irish
Fenians.[57] Rep. John Coburn (R., Ind.) saw the situation in an opposite
empirical light, deploring both state and private disarming of blacks. "How
much more oppressive is the passage of a law that they shall not bear arms
than the practical seizure of all arms from the hands of the colored men?"[58]

  The next day Rep. Henry L. Dawes (R., Mass.) returned to a legal analysis
which again asserted the incorporation thesis. Of the anti-Klan bill he
argued:

  The rights, privileges, and immunities of the American citizen, secured to
him under the Constitution of the United States, are the subject-matter of
this bill....

  . . . In addition to the original rights secured to him in the first article
of amendments he had secured the free exercise of his religious belief, and
freedom of speech and of the press. Then again he has secured to him the right
to keep and bear arms in his defense. [Dawes then summarizes the remainder of
the first eight amendments.] . . .

  . . . And still later, sir, after the bloody sacrifice of our four years'
war, we gave the most grand of all these rights, privileges, and immunities,
by one single amendment to the Constitution, to four millions of American
citizens....

  . . . [I]t is to protect and secure to him in these rights, privileges, and
immunities this bill is before the House.[59]

  Rep. Horatio C. Burchard (R., Ill.), while generally favoring the bill
insofar as it provided against oppressive state action, rejected the
interpretation by Dawes and Bingham regarding the definition of "privileges
and immunities," which Burchard felt were contained only in Articles IV, V,
and VI rather than I-VIII. However, Burchard still spoke in terms of "the
application of their eight amendments to the States,"[60] and in any case
Dawes had used the terms "rights, privileges and immunities." The anti-Klan
bill finally was passed along partisan lines as An Act to Enforce the
Provisions of the Fourteenth Amendment.[61]

            E. THE CIVIL RIGHTS ACT OF 1875

  After passage of the anti-Klan bill, discussion concerning arms persisted as
interest developed toward what became the Civil Rights Act of 1875, now 42
U.S.C.  1984. A report on affairs in the South by Sen. John Scott (R., Penn.)
indicated the need for further enforcement legislation: "negroes who were
whipped testified that those who beat them told them they did so because they
had voted the radical ticket, and in many cases made them promise that they
would not do so again, and wherever they had guns took them from them."[62]

  Following the introduction of the civil rights bill the debate over the
meaning of the privileges and immunities clause returned. Sen. Matthew H.
Carpenter (R., Wis.) cited Cummings v. Missouri,[63] a case contrasting the
French legal system, which allowed deprivation of civil rights, "and among
these of the right of voting, . . . of bearing arms," with the American legal
system, averring that the Fourteenth Amendment prevented states from taking
away the privileges of the American citizen.[64]

  Sen. Allen G. Thurman (D., Ohio) argued that the "rights, privileges, and
immunities of a citizen of the United States" were included in Amendments
I-VIII. Reading and commenting on each of these amendments, he said of the
Second: "Here is another right of a citizen of the United States, expressly
declared to be his right--the right to bear arms; and this right, says the
Constitution, shall not be infringed." After prodding from John A. Sherman
(R., Ohio), Thurman added the Ninth Amendment to the list.[65]

  The incorporationist thesis was stated succinctly by Senator Thomas M.
Norwood (D., Ga.) in one of the final debates over the civil rights bill.
Referring to a U.S. citizen residing in a Territory, Senator Norwood stated:

  His right to bear arms, to freedom of religious opinion, freedom of speech,
and all others enumerated in the Constitution would still remain indefeasibly
his, whether he remained in the Territory or removed to a State.

  And those and certain others are the privileges and immunities which belong
to him in common with every citizen of the United States, and which no State
can take away or abridge, and they are given and protected by the
Constitution.

  The following are most, if not all, the privileges and immunities of a
citizen of the United States:

  The right to the writ of habeas corpus; of peaceable assembly and of
petition; . . . to keep and bear arms [emphasis added]; . . . from being
deprived of the right to vote on account of race, color or previous condition
of servitude.[66]

  Arguing that the Fourteenth Amendment created no new rights but declared
that "certain existing rights should not be abridged by States," the Georgia
Democrat explained:

  Before its [Fourteenth Amendment] adoption any State might have established
a particular religion, or restricted freedom of speech and of the press, or
the right to bear arms [emphasis added] . . . A State could have deprived its
citizens of any of the privileges and immunities contained in those eight
articles, but the Federal Government could not. . .

  . . . And the instant the fourteenth amendment became a part of the
Constitution, every State was at that moment disabled from making or enforcing
any law which would deprive any citizen of a State of the benefits enjoyed by
citizens of the United States under the first eight amendments to the Federal
Constitution.[67]

  In sum, in the understanding of Southern Democrats and Radical Republicans
alike, the right to keep and bear arms, like other Bill of Rights freedoms,
was made applicable to the states by the Fourteenth Amendment.

  The framers of the Fourteenth Amendment and of the civil rights acts of
Reconstruction, rather than predicating the right to keep and bear arms on the
needs of an organized state militia, based it on the right of the people
individually to possess arms for protection against any oppressive
force--including racist or political violence by the militia itself or by
other state agents such as sheriffs. At the same time, the militia was
understood to be the whole body of the people, including blacks. In discussion
concerning the Civil Rights Act of 1875, Sen. James A Alcorn (R., Miss.)
defined the militia in these terms: "The citizens of the United States, the
Posse comitatus, or the militia if you please, and the colored man composes
part of these."[68] Every citizen, in short, was a militiaman. With the
passage of the Fourteenth Amendment, the right and privilege individually to
keep and bear arms was protected from both state and federal infringement.[69]

                  REFERENCES

1.  Dred Scott v. Sandford, 60 U.S. (19 How.) 393 15 L. Ed. 691 (1857).

2.  15 L. Ed. at 705 [emphasis added]. And see id at 719. 3.  Protection of
the "absolute rights of individuals" to personal security, liberty, and
private property is secured in part by "the right of bearing arms--which with
us is . . . practically enjoyed by every citizen, and is among his most
valuable privileges, since it furnishes the means of resisting as a freeman
ought, the inroads of usurpation." I Henry St. Geo. Tucker, Commentaries on
the Laws of Virginia 43 (1831) (reference to U.S. Constitution). And see St.
Geo. Tucker, 1 Blackstone, Commentaries #144 n. 40 (1st ed. 1803); W. Rawle, A
View of the Constitution 125-26 (1829); 3 J. Story, Commentaries on the
Constitution 746 (1833); Bliss vs. Commonwealth, 2 Litt. (Ky.) 90, 13 Am. Dec.
251 (1822), Simpson vs. State, 13 Tenn. Reports (5 Yerg.) 356 (1833), Nunn v.
State, 1 Ga. 243 (1846). Cf. State v. Buzzard, 4 Ark, 18 (1843).

4.  W. Rawle supra note 3, at 125-26, stated: The prohibition is general. No
clause in the Constitution could by any rule of construction be conceived to
give to congress a power to disarm the people. Such a flagitious attempt could
be made under some general pretence by a state legislature. But if in any
blind pursuit of inordinate power, either should attempt it, this amendment
may be appealed to as a restraint on both.

  Similarly, it was stated in Nunn v State, 1 Ga 243, 250-51 (1846):

  The language of the second amendment is broad enough to embrace both Federal
and state governments--nor is there anything in its terms which restricts its
meaning.... Is it not an unalienable right, which lies at the bottom of every
free government?

  And see cases cited at 68 C.J. Weapons 4 n 60 (1934).

  According to II J. Bishop, Criminal Law 124 (3rd ed. 1865): "Though most of
the amendments are restrictions on the general government alone, not on the
States this one seems to be of a nature to bind both the State and National
legislatures." Approved in English v. State, 35 Tex. 473 (1872). For an
analysis of U.S. Supreme Court cases related to whether the Second and/or
Fourteenth Amendments prohibit state action which infringes on keeping and
bearing arms, see S. Halbrook, The Jurisprudence of the Second and Fourteenth
Amendments, IV George Mason L. Rev. (1981).
                        80

5.  State v. Newson, 27 N.C. 203, 204 (1844), Cooper v. Savannah, 4 Ga. 72
(1848).

6.  State v. Newson, 27 N.C. 203, 207 (1844). Cf. cases cited at 68 C.J.
Weapons 5, n. 19, 21, 22; 8, n. 37, 40 (1934).

7.  "What was the fourteenth article designed to secure? . . . [T]hat the
privileges and immunities of citizens of the United States shall not be
abridged or denied by the United States or by any State, defining also, what
it was possible was open to some question after the Dred Scott decision, who
were citizens of the United States." Sen. George F. Edmonds (R., Vt.), CONG.
GLOBE, 40th Cong., 3rd. Sess., pt. 1, 1000 (Feb. 8, 1869).

8.  While it "cannot turn the clock back to 1868 when the Amendment was
adopted," Brown v. Board of Education of Topeka, 347 U.S. 483, 492 (1954), the
Supreme Court is compelled to interpret Amendment XIV and Reconstruction
legislation in accord with the Congressional intent. Lynch v. Household
Finance Corp., 405 U.S. 538, 549 (1972), Monell v. Dep't. of Social Services
of City of New York, 436 U.S. 658 (l978) ("fresh analysis of debate on the
Civil Rights Act of l871," id. 665, justified overruling Monroe v. Pape, 365
U.S. 167 [1961]). Cf. Fairman, Does the Fourteenth Amendment Incorporate the
Bill of Rights? The Original Understanding, 2 Stanford L. Rev. 5, 44-45,
57-58, 119-20 (1949) (while contending that the Bill of Rights in general was
not intended to apply to the states, cited references to the Second Amendment
in congressional debates support incorporation).

  Though beyond the scope of this study, the history of the prohibition of
arms possession by native Americans or Indians presents a parallel example of
the use of gun control to suppress or exterminate non-white ethnic groups.
While legal discrimination against blacks in respect to arms was abolished
during Reconstruction, the sale of arms and ammunition to "hostile" Indians
remained a prohibition. Eg., 17 stat. 457, 42nd Cong., 3rd Sess., ch. 138
(1873). See also Sioux Nation of Indians v. United States, 601 F. 2d 1571,
1166 (Ct. Cl. 1979): "Since the Army has taken from the Sioux their weapons
and horses, the alternative to capitulation to the government's demands was
starvation... " The federal government's special restrictions on selling
firearms to native Americans were abolished finally in 1979. Washington Post,
Jan. 6,1979,  A, at 11, col 1

9.  See State v. Hannibal, 51 N.C. 57 (l859); State v. Harris, 51 N.C. 448
(1859), D. Hundley, Social Relations in our Southern States 361 (1860). Blacks
were experienced enough in the use of arms to pay a significant, though
unofficial, role as Confederate soldiers, some even as sharpshooters. H.
Blackerby, Blacks in Blue and Gray 1-40 (Tusculoosa, Ala. 1979); J. Obatala,
Black Confederates, Players 13 ff. (April, 1979). In Louisiana, the only state
in the Union to include blacks in the militia, substantial numbers of blacks
joined the rebellion furnishing their own arms. M. Berry, Negro Troops in Blue
and Gray, 8 Louisiana History 165-66 (1867).

10.  The Writings of Cassius Marcellus Clay 257 (H. Greeley ed. 1848).

11.  DuBois, John Brown 106 (1909). 12.  J. McPherson, The Negro's Civil War
72-73 (1965). While all may be fair in love and war, experiences during the
conflict suggest that deprivation of one right is coupled with deprivation of
others. When the secession movement began, Lincoln suspended habeas corpus and
instated the disarming of citizens and military arrests in Maryland and
Missouri. In the latter state, the death penalty was instated by union
officers for those caught with arms, and after an order was issued to arm the
militia by random seizures of arms, the searches provided the occasion for
general looting. See 3 War of the Rebellion 466-67 (Series 1) and 13 id. at
506; R. Brownlee, Gray Ghosts of the Confederacy 37, 85, & 170 (L.S.U. 1958).
The situation became so harsh for Northerners themselves that the Northern
Democratic Platform of 1864 declared in its fourth resolution against the
suppression of free speech and press and the denial of the right of the people
to bear arms in their defense. E. Pollard, The Lost Cause 574 (1867).

13.  61 The War of the Rebellion, ser. 1, pt. 2, 1068 & 1315 (1880-1901); R.
Durden, The Gray & The Black 250 (1972).

14.   R Durden, supra note 13, at 169

15.   Cong. Globe, 38th Cong., 2nd Sess., pt. 1, 171 (Jan. 9, 1865).

16.  Id. 289 (Jan. 18, 1865).

17.  Id, 39th Cong., 1st Sess., pt. 1, 674 (Feb. 6, 1866). But see id. at pt.
4, 3215 (June 16, 1866) (allegation by Rep. William E. Niblack (D., Ind.) that
the majority of Southern blacks "either adhered from first to last to the
rebellion or aided and assisted by their labor or otherwise those who did so
adhere.").

18.  DuBois, Black Reconstruction in America 167, 172, & 223 (New York 1962).

19.  Cong. Globe, 39th Cong., 1st Sess., pt. 1, 40 (Dec. 13, 1865).

20.  Civil Rights Act, 14 Stat. 27 (1866). A portion of this act survives as
42 U.S.C.  1982: "All citizens of the United States shall have the same right,
in every State and Territory as is enjoyed by white citizens thereof to
inherit, purchase, lease, sell, hold, and convey real and personal property."

21.  Cong. Globe, 39th Cong., 1st Sess., pt. 1, 474 (Jan. 29, 1866).

22.  Id. 478.

23.  Id. 517 (Jan. 30, 1866).

24.  Id. 651 (Feb. 5, 1866).

25.  Id. 941 (Feb. 20, 1866).

26.  Id.

27.  Id., pt. 2, 1266 (Mr. 8, 1866).

28.  Id. 1629 (Mar. 24, 1866).

29.  Id. 3

30.  Id. 1838 (Ap. 7, 1866).

31.  Id.

32.  Id.

33.  Id.

34.  Id. 1839. Ironically, Clarke's home state, Kansas, adopted measures to
prohibit former Confederates from possessing arms. Kennett & Anderson at 154.

35.  Cong. Globe 39th Cong., 1st Sess., pt. 3, 2765 (May 23, 1866).

36.  Id. 2766. Italics added.

37.  Id. pt. 4, 3210 (June 16, 1866).

38.  Id. 2nd Sess., pt. 1,107 (Dec. 13, 1866).

39.  Id., 40th Cong., 2nd Sess. pt. 3, 2198 (Mar. 28, 1868).

40.  Id.

41.  1464 H.R. REP. No. 37, 41st Cong., 3rd Sess. 3 (Feb. 20, 1871).

42.  Cong. Globe, 42nd Cong., 1st Sess., pt. 1, 174 (Mar. 20, 1871).
Introduced as "an act to protect loyal and peaceable citizens in the south . .
.", H.R. No. 189

43.  H.R. Rep. No. 37, supra note 26, at 7-8.

44.  Cong. Globe, 42nd Cong., 1st Sess., pt. 1. 154 (Mar. 18, 1871).

45.  Id. 196 (Mr. 21, 1871).

46.  Id. 321 (Mr. 28, 1871).

47.  Id., pt. 2, Appendix, 68. Passed as the Enforcement Act, 17 Stat. 13
(1871), 1 survives as 42 U.S.C.  1983: "Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other
proper proceedings for redress." The action for conspiracy to deprive persons
of rights or privileges under 42 U.S.C.  1985 derives from the same act.

48.  Cong Globe, 42nd Cong., 1st Sess., pt. 1, 337 (Mr. 29, 1871).

49.  Id. 339.

50.  Id. 385 (Ap. 1, 1871).

51.  Id., pt. 2, Appendix, 84 (Mr. 31, 1871).

52.  Id., pt. 1, 413 (Ap. 3, 1871).

53.  Id. 422 (Ap. 3, 1871).

54.  Id.

55.  Id. Nathan Bedford Forrest told Congressional investigators in 1871 that
the Klan originated in Tennessee for self defense against the militia of
Governor William G. Brownlow. N. Burger and J. Bettersworth, South of
Appomattox 129, 132, and 137 (1959). Still, two years before, Forrest
denounced Klan lawlessness because "the order was being used . . . to disarm
harmless negroes having no thought of insurrectionary movements, and to whip
both whites and blacks." C. Bowers, THE TRAGIC ERA 311 (1929). The outrages in
turn allegedly furnished "a plausible pretext for the organization of State
militias to serve the purposes of Radical politices." C. Bowers at 311.
Carpetbagger controlled militias were deeply involved in political violence to
influence elections, and were blamed for infringing on their opponents'
constitutional rights to free speech and to keep and bear arms, among numerous
other abuses. E.g., C. Bowers at 439 and passim; O. Singletary, Negro Militia
and Reconstruction 35-41, 74-75 (1963).

56.  Cong Globe, 42nd Cong., 1st Sess., pt. 1, 445 (Ap. 4,1871).

57. Id. 453.

58.  Id. 459.

59.  Id. 475-76 (Ap. 5, 1871). [Emphasis added].

60.  Id., 2, Appendix, 314.

61.  17 Stat. 13, 42nd Cong., 1st Sess., ch. 22 (1871).

62.  1484 S. Rep. No. 41, 42nd Cong., 2nd Sess., pt. 1, 35 (Feb. 19, 1872).

63.  Cummings v. Missouri, 71 U.S. 277, 321 (1866).

64.  Cong. Globe, 42nd Cong., 2nd Sess., pt. 1, 762 (Feb. 1, 1872).

65.  Id., pt. 6, Appendix, 25-26 (Feb. 6, 1872). On Amendment IX as a source
of an individual right to keep and bear arms, see Caplan Restoring the
Balance: The Second Amendment Revisited, 5 Fordham Urban L. j. 31, 49-50
(1976). See also 2 Cong. Rec. 43rd Cong., 1st Sess., pt. 1, 384-385 (Jan. 5,
1874) (statement by Rep. Robert Q. Mills (D., Tex.) that Amendment XIV adopts
Bill of Rights privileges).

66.  Cong. Rec., 43rd Cong., 1st Sess., pt. 6, Appendix, 241-242 (May 4,
1874). Emphasis added.

67.  Id. 242. Italic added.

68.  Id. (May 22, 1874). The antebellum exclusion of blacks from the armed
people as militia was commented on by Sen. George Vickers (D., Md.), who
recalled a 1792 law passed by Congress: "That every free able-bodied white
male citizen shall be enrolled in the militia." Vickers added that as late as
1855 New Hampshire "confined the enrollment of militia to free white
citizens." Cong. Globe, 41st Cong., 2nd Sess., pt. 2, 1558-59 (Feb. 25, 1870).
Exclusion of a right to bear arms by blacks was further evidence of their lack
of status as citizens. See 1464 H.R. Rep. No. 22, 41st Cong., 3rd Sess. 7
(Feb. 1, 1871), citing Cooper V. Savannah, 4 Ga. 72 (1848) (not entitled to
bear arms or vote).

69.  While unrelated to the debates over the Fourteenth Amendment,
congressional deliberation over whether the federal government could abolish
militias in the Southern states also gave rise to exposition of the Second
Amendment. In support of repeal of a statute prohibiting the Southern
militias, Sen. Charles R. Buckalew (D., Penn.) pointed out that the U.S.
President favored repeal of the statute because at all times, both when it was
placed upon the statute-book and every moment since, it was and is in his
judgment a violation of the Constitution of the United States. One of the
amendments to our fundamental law expressly provides that "the right of the
people to keep and bear arms shall not be infringed"--of course by this
Government, and it gives the reason that a well-regulated militia in the
several divisions of the country is necessary for the protection and for the
interests of the people. Cong. Globe, 40th Cong., 3rd Sess., pt. 1, 83-84.

  George F. Edmunds (R., Vt:) worried that repeal of the statute "will
authorize anybody and everybody in the State of Texas, under what they call
its ancient militia laws... to organize a militia hostile to the Government,"
id. at 81, and thus advocated "a selected militia" chosen by State and federal
governments. Id. In contrast, Garrett Davis (D. Ky.) stated: "Wherever a State
organizes a government it has of its own inherent right and power authority to
organize a militia for it. Congress . . . has no right to prohibit that State
from the organization of its militia." Id. at 84. Willard Warner (R., Ala.)
stressed the first clause of the Second Amendment to form militias independent
of federal control: we have the right now, being restored to our full
relations to the Federal Government, to organize a militia of our own, and
that we could have done so at any time in the past, this law to the contrary
notwithstanding. Article two of the amendments of the Constitution provides
that--

  "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." Id. at
85.

  The prohibitionary statute was repealed, id at 86. Cf: Houston v. Moore, 18
U.S. 1, 16-17 (1820).

  Thus, while debates over the militia question suggested that the Second
Amendment precluded federal legislation which prohibited the states or the
people from forming militias, debates over the Fourteenth Amendment
demonstrate the intent of Congress to preclude state militias or other state
action from infringing on the individual right to keep and bear arms.

end page 4.  Cong. Globe, 42nd Cong., 2nd Sess., pt. 1, 762 (Feb. 1, 1872).


############

THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION GUARANTEES AN
INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS

(By James J. Featherstone, Esquire General Counsel, National Rifle Association
of America and Richard E. Gardiner, Esquire, Robert Dowlut, Esquire, Office of
the General Counsel)

  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.

  The values of the Framers of the Constitution must be applied in any case
construing the Constitution. Inferences from the text and history of the
Constitution should be given great weight in discerning the original
understanding and in determining the intentions of those who ratified the
constitution. The precedential value of cases and commentators tends to
increase, therefore, in proportion to their proximity to the adoption of the
Constitution, the Bill of Rights or any other amendments. Powell v. McCormack,
395 U.S. 486, 547 (1969).

A. COMMON LAW DEVELOPMENT OF THE RIGHT TO KEEP AND BEAR ARMS

  The right to keep and bear arms was not created by the Second Amendment;
rather, this basic individual right, developed in England before this
continent was colonized, pre-dated the constitution and was part of the common
law heritage of the thirteen original colonies.

  Sir William Blackstone, an authoritative source of the common law for
colonists and, therefore, a dominant influence on the drafters of the original
Constitution and its Bill of Rights, set forth in his Commentaries the
absolute rights of individuals as: personal security, personal liberty, and
possession of private property, I Blackstone Commentaries 129, these absolute
rights being protected by the individual's right to have and use arms for
self-preservation and defense. As Blackstone observed, individual citizens
were therefore entitled to exercise their "natural right of resistance and
self-preservation, when the sanctions of society and laws are found
insufficient to restrain the violence of oppression." Id. at 144.[1] Clearly
evident in this statement is Blackstone's recognition that the exercise of an
individual's absolute rights could be imperiled by a standing army as well as
by private individuals, a view supported by his observation that "Nothing . .
. ought to be more guarded against in a free state than making the military
power . . . a body too distinct from the people." Id. at 414. To prevent such
an occurrence, Blackstone not only believed in the individual's right to have
and use arms, but further believed that for its defense a nation should rely
not on a standing army, but the citizen soldier. Plainly, for such a concept
to be a reality, it was necessary that all able-bodied males possess and be
capable of using arms.

  Blackstone was not alone in his view that the common law recognized the
individual's right to possess arms: in his Pleas of the Crown, Hawkins noted
that "every private person seems to be authorized by the Law to arm himself
for [various] purposes." 1 William Hawkins, Pleas of the Crown, ch. 28,
Section 14, p. 171 (7th ed. 1795). In agreement with Blackstone was Sir Edward
Coke who wrote that "the laws permit the taking up of arms against armed
persons," 2 E. Coke Institutes of the Laws of England, 574 (Johnson & Warner,
ed. 1812).

  It was within this legal tradition of the individual's right to have and use
arms for his own defense and self-preservation as well as to enable him to
contribute to the common defense, that the spark which ignited the American
Revolution was struck. The British, by attempting to seize large stores of
powder and shot, sought to deny the Massachusetts colonists the ability to
protect their absolute rights. The colonists retaliated by exercising their
common law right to keep and bear arms, using the very arms which the British
wished to render ineffective.[2] It is beyond question that prior to the
Second amendment the common law recognized a fundamental individual right to
keep and bear arms, subject only to a certain limited police power to regulate
the bearing of arms so as not to terrify the good people of the land. 4
Blackstone Commentaries 149.

          B. THE HISTORY OF THE SECOND AMENDMENT

  The Second amendment to the United States Constitution provides:

  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.

  The history of the Second Amendment indicates that its purposes were to
secure to each individual the right to keep and bear arms so that he could
protect his absolute individual rights as well as carry out his obligation to
assist in the common defense. It is evident that the framers of the
Constitution did not intend to limit the right to keep and bear arms to a
formal military body or organized militia, but intended to provide for an
"unorganized" armed citizenry prepared to assist in the common defense against
a foreign invader or a domestic tyrant. This concept of an unorganized, armed
citizenry clearly recognized the right, and moreover the duty, to keep and
bear arms in an individual capacity.

  One of the gravest decisions faced by the Framers of the Constitution was
whether the federal government should be permitted to maintain a standing
army. Because of their personal experiences in and prior to the Revolution,
the Framers of the Constitution realized that although useful for national
defense, a standing army was particularly inimical to the continued safe
existence of those absolute rights recognized by Blackstone and generally
inimical to personal freedom and liberty.

  Unwilling, however, to forego completely the national defense benefits of a
standing army, the Framers developed a compromise position. The federal
government was granted the authority to "raise and-support" an army, subject
to the restrictions that no appropriation of money for the army would be for
more than two years and civilian control over the army would be maintained.
U.S. Constitution, Article I, Section 8, Clause 12. Furthermore, knowing
that the militiaman or citizen soldier had made possible the success of the
American Revolution for Independence,[3] the Framers recognized that a militia
would provide the final bulwark against both domestic tyranny and foreign
invasion. Congress, however, was given only limited authority over the
militia, it could "govern . . . [only] such part of the [the militia] as may
be employed in the Service of the United States . . .," leaving to the states
"the Appointment of the Officers, and the Authority of training the Militia .
. ." (emphasis added) U.S. Constitution, Article I, Section 8, Clause 16.

  It is evident from the underscored language of Clause 16 that, in addition
to that part of the militia over which the Constitution granted Congress
authority, there exists a residual, unorganized militia that is not subject to
congressional control. The United States Code, in Title 10, Section 311,
continues to recognize the distinction between the organized and unorganized
militia:

  (a) The militia of the United States consists of all able-bodied males at
least 17 years of age and, except as provided in section 313 of title 32,
under 45 years of age who are, or who have made a declaration of intention to
become, citizens of the United States and of female citizens of the United
States who are commissioned officers of the National Guard.   (b) The classes
of the militia are: (1) The organized militia, which consists of the National
Guard and the Naval Militia; and (2) The unorganized militia which consists of
the members of the militia who are not members of the National Guard or the
Naval Militia.

  This distinction, recognized by the Framers in the Constitution, was first
codified in the Militia Act of 1792, which defined both an "organized"
militia, and an "enrolled" militia. [4] The unorganized or enrolled militia
were not actually in service, but were nonetheless available to assist in the
common defense should conditions necessitate either support of the organized
militia or possibly defense against internal oppression. As fully explained
later, the members of the unorganized militia were expected to be familiar
with the use of firearms and to appear bearing their own arms. Obviously, they
could be so prepared only if all individuals were guaranteed the right to keep
and bear arms.

  In his comments on the rights protected by the Constitution, a leading
constitutional commentator, in discussing the right protected by the Second
Amendment, wrote:

  *The Right is General*. It may be supposed from the phraseology of this
provision that the right to keep and bear arms was only guaranteed to the
militia; but this would be an interpretation not warranted by the intent. The
militia, as has been elsewhere explained, consists of those persons who, under
the law, are liable to the performance of military duty, and are officered and
enrolled for service when called upon. But the law may make provision for the
enrollment of all who are fit to perform military duty, or of a small number
only, or it may wholly omit to make any provision at all; and if the right
were limited to those enrolled, the purpose of this guarantee might be
defeated altogether by the action or neglect to act of the government it was
meant to hold in check. The meaning of the provision undoubtedly is, that the
people, from whom the militia must be taken, shall have the right to keep and
bear arms, and they need no permission or regulation of law for the purpose.
But this enables the government to have a well regulated militia; for to bear
arms implies something more than the mere keeping; it implies the learning to
handle and use them in a way that makes those who keep them ready for their
efficient use; in other words, it implies a right to meet for voluntary
discipline in arms, observing in doing so the laws of public order. (Emphasis
added.) Thomas M. Cooley, LL.D., General Principles of Constitutional Law in
the United States of America, 298-299 (3rd ed. 1898).

  When the Constitution was sent to the states for ratification, several
states, chief among them Virginia, were concerned that in spite of the
restrictions written into the main body of the Constitution, a federal
standing army might still threaten the hard-won liberties of the people. In
Federalist No. 46, written prior to the ratification of the Constitution,
James Madison discussed how a federal standing army, which he estimated in
1788 would consist of "one twenty-fifth part of the number able to bear arms,"
might be checked or controlled:

  To these [the standing army troops] would be opposed a militia amounting to
near half a million of citizens with arms in their hands, officered by men
chosen from among themselves, fighting for their common liberties, and united
and conducted by [state] governments possessing their affections and
confidence. It may well be doubted whether a militia thus circumstanced could
ever be conquered by such a proportion of regular troops. Those who are best
acquainted with the late successful resistance of this country against the
British Arms will be most inclined to deny the possibility of it. *Besides the
advantage of being armed, which the Americans possess over the people of
almost every other nation*. The existence of subordinate governments to which
the people are attached, and by which the militia officers are appointed,
forms a barrier against the enterprises of ambition, more insurmountable than
any which a simple government of any form can admit of. Notwithstanding the
military establishments in the several kingdoms of Europe, . . . the
governments [of Europe] are afraid to trust the people with arms. (Emphasis
added.)

  Alexander Hamilton, too, although more favorably inclined toward a strong
central government, feared the detrimental effects on individual liberty that
might result from the existence of a federal standing army. He explained in
Federalist No. 29 how, under the proposed constitution, a federal standing
army could be avoided, or at least restrained:

  The attention of the government ought particularly to be directed to the
formation of a select corps of moderate size upon such principles as will
really fit it for service in case of need. By thus circumscribing the plan it
will be possible to have an excellent body of well trained militia ready to
take the field whenever the defense of the State shall require it. This will
not only lessen the call for military establishments; but if circumstances
should at any time oblige the government to form an army of any magnitude,
that army can never be formidable to the liberties of the people, while there
is a large body of citizens little if at all inferior to them in discipline
and the use of arms, who stand ready to defend their rights and those of their
fellow citizens. This appears to me the only substitute that can be devised
for a standing army; the best possible security against it if it should exist.

  Hamilton evidently felt that the militia composed of the body of the people
would provide a deterrent to a federal standing army or the organized militia,
only because the people had the right to keep and bear arms. The states,
however, wanted this right to be guaranteed explicitly. A number of them,
therefore, proposed amending the Constitution to guarantee an individual right
to keep and bear arms.

  Consonant with the request of the states, the Congress proposed twelve
amendments to the Constitution, one of which concerned the right to keep and
bear arms.[5] In its original form, as proposed by James Madison of Virginia,
the Second Amendment (the fourth proposed amendment) read:

  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.

  Congressman Elbridge Gerry of Massachusetts opposed the amendment in this
form because the provision exempting persons with religious scruples from
bearing arms might be used by the federal government arbitrarily to declare an
individual religiously scrupulous, thereby denying him the right to bear arms.
Gerry offered an amendment modifying the religious exemption to apply only to
religious sects and not to individuals. In the course of the floor debate,
Gerry discussed the Second Amendment and the purpose of the militia:

  This declaration of rights, I take it, is intended to secure the people
against the maladministration of the Government, if we could suppose that, in
all cases, the rights of the people would be attended to, the occasion for
guards of this kind would be removed. Now, I am apprehensive, sir, that this
clause would give an opportunity to the people in power to destroy the
Constitution itself. They can declare who are those religiously scrupulous,
and prevent them from bearing arms.

  What, sir, is the use of a militia? It is to prevent the establishment of a
standing army, the bane of liberty. Now, it must be evident that, under this
provision, together with their other powers, Congress could take such measures
with respect to a militia, as to make a standing army necessary. Whenever
Governments mean to invade the rights and liberties of the people, they always
attempt to destroy the militia, in order to raise an army upon their ruins.
This was done actually by Great Britain at the commencement of the late
Revolution. They used every means in their power to prevent the establishment
of an effective militia to the Eastward. The Assembly of Massachusetts, seeing
the rapid progress that administration were making to devest them of their
inherent privileges, endeavored to counteract them by the organization of a
militia; but they were always defeated by the influence of the Crown.
[Interruption.]   No attempts they made were successful, until they engaged in
the struggle which emancipated them at once from their thraldom. Now, if we
give a discretionary power to exclude those from militia duty who have
religious scruples, we may as well make no provision on this head. For this
reason, [I wish] the words to be altered so as to be confined to persons
belonging to a religious sect scrupulous of bearing arms. 1 Annals of Congress
749-750 (August 17, 1789).

  Gerry plainly understood in making his proposal that one purpose of the
amendment was to ensure the existence of the militia composed of the body of
the people since the organized militia was subject to federal service;
therefore it was necessary to protect the right of all people, that is, each
individual, to keep and bear arms.[6] Gerry recognized that only if all
individuals, those whose liberties were to be protected, were capable of using
arms, could the militia truly serve as the final bulwark against a foreign
invader or domestic tyrant. Following Gerry's discussion, the proposed
amendment was revised to eliminate any reference to a religious exemption from
keeping and bearing arms.

  Supporting Gerry's view that the Second Amendment protected an individual
right is that the Senate, while also considering the proposed amendments,
soundly rejected a proposal to insert the phrase "for the common defense"
after the words "bear arms," (1 History of the Supreme Court of the United
States, 450 (J. Goebel, Jr. ed. 1971), 2 B. Schwartz, The Bill of Rights: A
Documentary History 1153-54 (1971)), thereby emphasizing that the purpose of
the Second Amendment was not merely to provide for the common defense, but
also to protect the individual's right to keep and bear arms for his own
defense and self-preservation.

  Not removed from the originally proposed version, however, was the term
"well-regulated." Contrary to modern usage, wherein "regulated" is generally
understood to mean "controlled" or "governed by rule", in its obsolete form
pertaining to troops, "regulated" is defined as "properly disciplined." II
Compact Edition, Oxford English Dictionary 2473 (1971); In the Oxford English
Dictionary, moreover, the verb discipline, in its earlier usage, is defined as
"to instruct, educate, train." I - Compact Edition, Oxford English Dictionary
741 (1971). Furthermore, as a noun, "discipline," which is etymologically
"concerned . . . with practice or exercises," refers to a field of "learning
or knowledge" or the "training effect of experience" that, in relation to
arms, is defined as "training in the practice of arms . . ." Ibid. Plainly
then, by using the term "well-regulated," the Framers had in mind not only the
individual ownership and possession of firearms but also the voluntary
undertaking of practice and training with such firearms so that each person
could become experienced with and competent in the use of firearms and thereby
be prepared, should the need arise, to carry out his militia obligation. This
conclusion is in complete accord with the comment of Thomas M. Cooley, supra,
p. 7.

  Consistent with this view is a plan drafted by George Mason, the Framer of
the Virginia Declaration of Rights and one of the Framers of the Constitution
for the inhabitants of Fairfax County, Virginia, in February, 1775, whereby
"all the able-bodied Freemen from eighteen to fifty Years of Age" were to
"embody [them]selves into a Militia for th[e] County." I Papers of George
Mason 215 (U. of N.C. Press, 1970). They did so because they were "thoroughly
convinced that a well-regulated militia, composed of the Gentlemen,
Freeholders, and other Freemen, is the natural Strength and only safe & stable
security of a free Government, & that such Militia will relieve our Mother
Country from any Expense in our Protection and Defense, will obviate the
Pretence of a necessity for taxing us on that account, and render it
unnecessary to keep any standing Army (ever dangerous to liberty) in this
Colony . . ." Ibid.

  Thus, each subscriber agreed, ". . . we do Each of us, for ourselves
respectively, promise and engage to *keep* a good Firelock in proper Order, &
to furnish Ourselves as soon as possible with, & *always keep by us*, one
Pound of Gunpowder, four Pounds of Lead, one Dozen Gun-Flints, & a pair of
Bullet-Moulds, with a Cartouch Box, or powder-horn, and Bag for Balls. That we
will use our best Endeavours to perfect ourselves in the Military Exercise &
Discipine . . ." (Emphasis added.) Id. at 216.

  Finally, the state ratifying conventions provide an excellent insight into
the perception of the Framers that the Second Amendment guaranteed to each
individual the right to keep and bear arms.

  In New Hampshire the ratifying convention advanced a proposal which provided
that "Congress shall never disarm *any citizen* unless such as are or have
been in Actual Rebellion." (Emphasis added.) Debates in the Federal Convention
of 1787 as Reported by James Madison, 658 (Hunt & Scott ed. 1920).

  Pennsylvania proposed a provision stating that "the people have the right to
bear arms for the defense of themselves, their state, or the United States,
and for killing game, and no law shall be enacted for disarming the people
except for crimes committed or in a case of real danger of public injury from
*individuals* . . . " (Emphasis added.) E. Dumbauld, The Bill of Rights and
What It Means Today 12 (1957).

  And in Massachusetts, Samuel Adams proposed an amendment requiring that the
"Constitution be never construed to authorize Congress to . . . prevent the
people of the United States, who are peaceable *citizens* from keeping their
own arms." (Emphasis added.) Pierce & Hale, Debates of the Massachusetts
Convention of 1788 86-87.

  The significance of the foregoing history is that the joining of "a well
regulated militia" with "the right to keep and bear arms" was a natural and
logical result of the experience of the men who had led the Revolution. Only
if individuals had the right to keep and bear arms could the people provide
for their own defense and self-preservation as well as in their capacity as
members of the militia, provide for the common defense from a foreign invader
or as a check against the internal usurpation of liberty by a standing army of
the central government.

  The Bill of Rights must be read in conjunction with the Constitution as an
integrated whole. The seven articles comprising the main body of the
Constitution establish a form of government and grant that government certain
powers to effectuate governance of the United States. The first ten
amendments, however, recognize the possibility of abuses against individuals
by the government the Constitution established; thus, certain individual
rights are guaranteed and protected. The fact that one of those protected and
guaranteed rights, the right to keep and bear arms, is joined with language
expressing one of its purposes or goals, in no way permits a construction
which limits or confines the exercise of that right. To hold otherwise is to
violate the principle that the guarantees and protections of the Bill of
Rights must be interpreted to give liberty the broadest possible scope and
further to turn a blind eye toward the common law and history of the adoption
of the Second Amendment. The Supreme Court of Oregon recently recognized this
principle by stating:

  We are not unmindful that there is current controversy over the wisdom of a
right to bear arms, and that the original motivations for such provision might
not seem compelling if debated as a new issue. Our task, however, in
construing a constitutional provision, is to respect the principles given the
status of constitutional guarantees and limitations by the drafters; it is not
to abandon these principles when this fits the needs of the moment.

State v. Kessler, 289 Or. 359, 614 P.2d 94, 95 (1980).

            C. JUDICIAL INTERPRETATION

  A conclusion that the Second Amendment does not guarantee an individual
right is not supported by United States v. Miller, 307 U.S. 174 (1939), or
other cases which the Supreme Court and other courts have considered.

  In United States v. Cruikshank, 92 U.S. 542 (1876), the first case in which
the Supreme Court had the opportunity to interpret the Second Amendment, the
court recognized that the right of the people to keep and bear arms existed
prior to the Constitution by stating that such a right "is not a right granted
by the Constitution . . . [n]either is it in any manner dependent upon that
instrument for its existence." 92 U.S. at 553. The indictment charged, inter
alia, a conspiracy by Klansmen to prevent and hinder blacks from exercising
their civil rights, including the bearing of arms for lawful purposes. The
Court held, however, that the Second Amendment guaranteed that the right to
keep and bear arms shall not be infringed by Congress and hence did not apply
to the instant case since the violation alleged was by fellow-citizens, not
the federal government.

  In Presser v. State of Illinois, 116 U.S. 252 (1886), although the Supreme
Court affirmed the holding in Cruikshank, i.e. that the Second Amendment
applied only to action by the federal government, it apparently found the
states without power to infringe upon the right to keep and bear arms, stating
at 265:

  It is undoubtedly true that all citizens capable of bearing arms constitute
the reserved military force or reserve militia of the United States as well as
of the States, and in view of this prerogative of the general government, as
well as of its general powers, *the States cannot, even laying the
constitutional provision in question out of view, prohibit the people from
keeping and bearing arms, so as to deprive the United States of their rightful
resource for maintaining the public security and disable the people from
performing their duty to the general government.* (Emphasis added.)

  The idea of the armed people maintaining "public security" mentioned in this
passage from Presser, was based on the common law concept that loyal
individuals had the right and duty to resist malefactors and the disloyal,
such as robbers and burglars, and to use deadly force, if necessary, to do so.
The Second Amendment thus also contemplates the right of the people to keep
and bear arms so as to be continuously able to maintain the "security of a
free State" by aiding in the enforcement of criminal laws such as by making
citizens' arrests and aiding peace officers in arresting malefactors. Joyce
Lee Malcolm, Disarmed: The Loss of the Right to Bear Arms in Restoration
England, p. 5 (Cambridge: The Mary Ingraham Bunting Institute of Radcliffe
College, 1980). Rex v. Compton, 22 Liber Assisarum (Book of Assizes 1347)
placitum 55, trans. in J.H. Beale, Jr., A Selection of Cases and other
Authorities Upon Criminal Law, p. 501 (2d ed. 1907). E. Coke Institutes of the
Laws of England at 56 (1648). Bohlen and Shulman, Arrest With and Without A
Warrant, 75 U.Pa.L.Rev. 485, 497 (1927).

  In United States v. Miller, supra, decided in 1939, the only case in which
the Supreme Court has had the opportunity to apply the Second Amendment to a
federal firearms statute, the Court carefully avoided making an unconditional
finding of the statute's constitutionality; it instead devised a standard by
which federal statutes relating to firearms are to be judged. The holding of
the Court in Miller, however, should be viewed as only a partial guide to the
meaning of the Second Amendment [77] primarily because neither defense counsel
nor defendants appeared before the Supreme Court, nor was any brief filed on
their behalf giving the Court the benefit of argument supporting the trial
court's holding that Section 11 of the National Firearms Act was
unconstitutional. As a result of the absence of the normal adversarial
process, the Court was presented with only the prosecution's view of the
Second Amendment, a view which, needless to say, was in favor of the
constitutionality of Section 11 of the National Firearms Act. In spite of this
severe and critical limitation on its decision-making process, the Court's
decision in some degree took account of the common law view of the right to
keep and bear arms as well as the historical background of the Second
Amendment.

  The heart of the Court's ruling is found at the beginning of the opinion; it
states:

  *In the absence of any evidence* tending to show that possession or use of a
"shotgun having a barrell of less than eighteen inches in length" at this time
has some reasonable relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument. Certainly it is not within judicial
notice that this weapon is any part of the ordinary military equipment or that
its use could contribute to the common defense. (Emphasis added.) 307 U.S. at
178.

  Two independent thoughts are expressed here: one, that for the keeping and
bearing of a firearm to be constitutionally protected, that firearm's
possession or use must have some reasonable relationship to the preservation
of a well regulated militia; and two, that in this case, the Court would not
take judicial notice that a short-barrelled shotgun met such a test. It
remanded the case to the trial court for the taking of evidence on that
question. [8] The Court's first point, that the right to keep and bear an arm
is dependent on the firearm's military value, is faulty, however, because the
Court failed to consider fully the common law (see section B above), and
misinterpreted cited authorities. Rather, the Court only briefly discussed the
common law and, moreover, did not consider the history of the adoption of the
Second Amendment, both of which support the proposition that the Second
Amendment guarantees and protects a fundamental individual right. As to the
misinterpretation of cited authorities, a result undoubtedly of the one-sided
argument, one important example should suffice.

  In support of its position that the Second Amendment's protection and
guarantee was limited to "ordinary military equipment" or weapons whose use
"could contribute to the common defense," the Court cited one case, Aymette v.
State, 21 Tenn. 154 2 Humph. 154 (1840). In Aymette, however, the Tennessee
Supreme Court was construing not the Second Amendment but the provision of
Tennessee's constitution guaranteeing the right to keep and bear arms, a
provision which, unlike the Second Amendment, spoke of each citizen's right to
keep and bear arms only as it related to the common defense. The Tennessee
court thus reasoned that not all objects which could conceivably be used as
weapons were protected by the Tennessee Constitution, but only those weapons
"such as usually employed in civilized warfare." Id. at 158. This limitation
is not, however, applicable to the Second Amendment since the First Congress,
while debating what ultimately became the Second Amendment, emphatically
rejected the "common defense" language upon which the Aymette decision turned.
It is plain, therefore, that the interpretation of the Second Amendment in
Miller is more limited than it should be and that the Second Amendment
protects the keeping and bearing of all types of arms which could be carried
by individuals. Moreover, the rejection of the "common defense" limitation
signified the Framers' intention that the constitutional guarantee of the
right to keep and bear arms was not inextricably tied to a militia nexus, but
existed independently of it. Even accepting, however, that a militia or common
defense nexus was necessary, Aymette went on to say that, "The citizens have
an unqualified right to keep the weapon." Id. at 160.

  One other comment should be made about Aymette. What Judge Green was
discussing when he said that the legislature could pass laws concerning arms
was that laws could be enacted which would punish the misuse of such arms. As
an example, Judge Green noted that the legislature could punish a set of
ruffians for entering a theatre or a church with drawn swords, guns, and fixed
bayonets to the terror of the audience; he went on to observe moreover, that
"the citizens have an unqualified right to keep the weapon" and to bear it
except to "terrify the people, or for purposes of private assassination." Id.
at 160.

  One of the chief values of the Miller opinion is its discussion of the
development and structure of the militia which, the Court pointed out,
consisted of "all males physically capable of acting in concert for the common
defense" and that "when called for service these men were expected to appear
bearing arms *supplied by themselves* and of the kind in common use at the
time." (Emphasis added.) 307 U.S. at 179. The other significant value of
Miller is its implicit rejection of the view that the Second Amendment
guarantees the right to keep and bear arms only to those individuals who are
members of the militia. Had the Court reviewed the Second Amendment as
guaranteeing the right to keep and bear arms only to "all males physically
capable of acting in concert for the common defense" it would certainly have
discussed whether Miller met the qualifications for inclusion in the militia
as it did with regard to the military value of a short-barrelled shotgun. That
it did not signifies the Court's acceptance of the fact that the right to keep
and bear arms is guaranteed to each individual without regard to his
relationship with the militia.

  The Miller Court examined in detail, at pages 179-182, not only the duty to
assist in the common defense but indeed the legal obligation each individual
then had to possess the arms necessary to undertake that common defense. For
example, in Massachusetts there were laws which levied fines and penalties
against adult males who failed to possess arms and ammunition. In Virginia and
New York all males of certain ages were required to own and possess their own
firearms at their own expense, and to appear bearing said arms when so
notified.

  It is clear that Miller, for all its shortcomings and limitations, supports
the view that the Second Amendment protects and guarantees a fundamental
individual right to keep and bear arms subject to the restriction that only a
certain category or categories of arms may, of right, be individually owned
and possessed, i.e. those arms whose possession or use are reasonably related
to the preservation or efficiency of the militia. As aptly put by Mr. Justice
Black, in discussing Miller and the Second Amendment, "although the Supreme
Court has held this amendment to include only arms necessary to a
well-regulated militia, as so construed its prohibition is absolute." Black,
The Bill of Rights, 35 N.Y.U.L. Rev. 865, 873 (1960). [9]

  In United States v. Tot, 131 F.2d 261 (3rd Cir. 1942), the Third Circuit
cited Miller in upholding the conviction under the Federal Firearms Act of a
felon for possessing a pistol which had traveled in interstate commerce. [10]

  The Third Circuit did not deny that individuals have the right to keep and
bear arms; it merely stated, in dicta, its view that the Second Amendment was
adopted as a protection for the states in the maintenance of their militia
organizations against possible encroachments by the federal power. The heart
of the Third Circuit's holding is that it was entirely reasonable for Congress
to prohibit the receipt of weapons from interstate transactions by persons who
have previously by due process of law been shown to be aggressors against
society and that this classification did not infringe upon the preservation of
the well-regulated militia protected by the Second Amendment.

  The Court could have gone on to point out that the maintenance of the
militias of the states is dependent upon the right of individuals, who may be
called upon to serve in the militias, to keep and bear arms.

  In Cases v. United States, 131 F.2d 916 (1st Cir. 1942), the First Circuit
upheld the constitutionality of the Federal Firearms Act of 1938. In so doing
it observed that apparently under Miller although the federal government could
limit the keeping and bearing of arms by a certain type of individual, it
could not

. . . prohibit the possession or use of any weapon which has any reasonable
relationship to the preservation or efficiency of a well regulated militia.
(emphasis added) 131 F.2d at 922,

a distinction arising from Miller's holding that the protections of the Second
Amendment are limited to those firearms with a militia nexus. The Court
indicated its unwillingness to accept the broad reach of Miller when it
reasoned that it was already outdated because in "commando units" some sort of
military use seems to have been found for almost any modern, lethal weapon. If
this were true, concluded the court, the protection of the Second Amendment as
set forth in Miller would be absolute except for antique weapons which have no
modern military use since, as the court accurately observed, ". . . almost any
other [weapon] might bear some reasonable relationship to the preservation or
efficiency of a well regulated militia unit of the present day . . ." Id. at
922.

  The First Circuit failed to consider the unambiguous wording of the Second
Amendment in reaching its conclusion. The Second Amendment speaks not only of
the right to keep arms, but to bear them as well, implying that the category
of arms, the possession of which is protected, is limited to those arms that
an ordinary individual can bear and does not extend to weapons such as
cannons, trench mortars, and antitank guns, which cannot be carried by an
ordinary individual. Also not protected are instrumentalities such as bombs
which, although conceivably they could be carried by a single individual, are
not arms in the sense used in the Second Amendment; rather, the historically
and constitutionally protected arms are those such as muskets, shotguns,
rifles and pistols, which are ordinarily possessed by private individuals. To
argue, ad absurdum, as the Cases court did, that all weapons are protected by
the Second Amendment overlooks the fact that the Framers of the Bill of Rights
were fully aware of the existence of heavier, horse-drawn and crew served arms
which the individual was physically incapable of bearing. Had framers of the
Bill of Rights intended to protect all weapons, they would not have linked the
right to bear arms with the right to keep arms.[11]

  Since, however, the Supreme Court did not review the Cases decision, Miller
persists as that Court's guidance to the interpretation of the Second
Amendment.

  It is clear, therefore, based on analysis of the decided cases, the common
law, and the history of the Second Amendment that the Second Amendment
guarantees an individual's right to keep and bear arms.

        D. THE RIGHT TO SELF-DEFENSE

  The right to keep and bear arms is inextricably connected to the
individual's absolute and inalienable right of self-defense which is, of
course, derived from the Natural Law.

  As referred to earlier, Blackstone clearly recognized as a natural right
that of keeping and using arms for "resistance and self-preservation." I
Blackstone Commentaries 144. The basic right to defend one's person with
deadly force has, moreover, been recognized by the Supreme Court, Beard v.
United States, 158 U.S. 550 (1895) and every state in the union. For example,
in State v. Dawson, 272 N.C. 535, 159 S.2d, 1, 9 and 11 (1968), the Supreme
Court of North Carolina, in interpreting a provision of that state's
constitution which tracked the language of the Second Amendment, held that the
individual right of self-defense was assumed by the Framers, and that any
statute or construction of a common law rule which would amount to a
destruction of the right to bear arms would be unconstitutional. Also, the
State v. Kessler, supra, the court noted that "the necessity of self
protection in a frontier society also was a factor" in guaranteeing the right
to keep and bear arms.

  The right to defend one's person is so fundamental that it was not set forth
in the constitution but certainly exists as one of those rights included in
the penumbra of unwritten rights surrounding the First, Second, Third, Fourth,
Fifth, and Ninth Amendments. It is manifestly an inalienable right, incapable
of surrender to the central government and encompassed by the Ninth Amendment
as retained by the people.

II. Antebellum judicial construction

  In the period from the adoption of the constitution to the War Between the
States, keeping and bearing arms was treated as a virtually unquestioned right
of each individual. The fundamental right to have arms was based in part on
the political lessons of the Revolutionary experience. "None but an armed
nation can dispense with a standing army," Jefferson wrote in 1803. "To keep
ours armed and disciplined, is therefore at all times important." The
Jefferson Cyclopedia 553 (1900). In 1814, Jefferson further observed that "we
cannot be defended but by making every citizen a soldier, as the Greeks and
Romans who had no standing armies." Id. at 551. In addition to the prevention
of aggression from domestic tyranny or foreign invasion, individual possession
of arms functioned to provide a basic means of self-defense, as well as of
subsistence for hunters.

  That the Second Amendment secured an individual right to keep and bear arms
was not an issue for partisan politics, and the courts fairly consistently so
held. The major exception to this rule appeared in the context of slavery.
Specifically, to disarm slaves as well as black freemen, certain courts
originated the views that the guarantee was limited to citizens rather than to
all people and that the Second Amendment did not restrain the states. The
exceptions were aberrations to prevent black freedom, as most courts which
analyzed the Second Amendment regarded all individuals as having the right and
construed it as a restraint on state infringement.

               A. JUDICIAL COMMENTARIES

  Although Federalist and Republican differences in interpretation of the
Constitution appeared early in judicial thought on subjects as diverse as the
general welfare clause and the right of free speech, these points of
divergence did not arise with respect to the Second Amendment. William Rawle,
one of the first commentators on the Second Amendment, analyzed its two basic
clauses in some detail:

  In the second article, it is declared, that *a well regulated militia is
necessary to the security of a free state*; a proposition from which few will
dissent. Although in actual war, the services of regular troops are
confessedly more valuable; yet, while peace prevails, and in the commencement
of a war before a regular force can be raised, the militia form the palladium
of the country. They are ready to repel invasion, to suppress insurrection,
and preserve the good order and peace of government....   The corollary, from
the first position, is, that the right of the people to keep and bear arms
shall not be infringed. The prohibition is general. No clause in the
Constitution could by any 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 any blind
pursuit of inordinate power, either should attempt it, this amendment may be
appealed to as a restraint on both.

W. Rawle, A view of the Constitution, 125-56 (1829).

  Rawle's analysis stresses the significance of the first clause of the Second
Amendment as an imperative for a militia system as opposed to a standing army.
Clause two is then treated both in its linkage to clause one in that the
individual right to keep and bear arms encourages a militia system, and
independently as recognition of a fundamental right to have arms unrestrained
by state no less than federal legislation. In negative remarks on English
policy, Rawle also clarified that the right to have arms is deemed more
absolute in America than Britian, and that the Second Amendment protects
individual use of arms for non-militia purposes such as hunting.

  St. George Tucker, a veteran of the Revolutionary War and an early Justice
of the Supreme Court of Virginia, followed Blackstone closely in regard to the
common law right to have arms, at the same time stressing the more absolute
character of the right under American law:

  The right of bearing arms--which with us is not limited and restrained by an
arbitrary system of game laws as in England; but, is practically enjoyed by
every citizen, and is among his most valuable privileges, since it furnishes
the means of resisting as a freeman ought, the inroads of usurpation.... I St.
Geo. Tucker, Commentaries on the Laws of Virginia, 43 (1831).

  In addition to his explicit characterization of keeping and bearing arms as
an individual right, elsewhere Justice Tucker distinguished the language of
the English Bill of Rights that subjects may have arms for their defense,
"suitable to their condition and degree, and such as are allowed by law," from
the Second Amendment, wherein the right to have arms exists "without any
qualification as to their condition or degree, as in the case of the British
government." I Blackstone Commentaries *144 n. 40 (St. Geo. Tucker, ed. 1803).

                B. STATE CASES

  A provision of the Kentucky Constitution, "The right of the citizens to bear
arms in defense of themselves and the state, shall not be questioned,"
provided the occasion for perhaps the first state judicial opinion on the
nature and source of the right to bear arms. Bliss v. Commonwealth, 2 Litt.
(Ky.) 90, 13 Am. Dec. 251 (1822). Defendant appealed his conviction for having
worn a sword cane by asserting the unconstitutionality of an act prohibiting
concealed weapons. The court held, "Whatever restrains the full and complete
exercise of that right, though not an entire destruction of it, is forbidden
by the explicit language of the constitution." Id. at 91-92. Observing that
wearing concealed weapons was considered a legitimate practice when the
constitutional provision was adopted, the court reasoned:

  The right existed at the adoption of the constitution; it had then no limits
short of the moral power of the citizens to exercise it, and in fact consisted
in nothing else but in the liberty of the citizens to bear arms. Diminish that
liberty, therefore, and you necessarily restrain the right; and such is the
diminution and restraint, which the act in question most indisputably imports,
by prohibiting the citizens wearing weapons in a manner which was lawful to
wear when the constitution was adopted. Id. at 92.12

  Whether carrying and wearing dangerous weapons constituted an affray at
common law was the issue in the Tennessee case of Simpson v. State, 13 Tenn.
Reports (5 Yerg.) 56 (1833). The Court answered in the negative, citing
Blackstone for the proposition that violence which terrifies the people must
also be present. The government cited Serjeant Hawkins, Pleas of the Crown,
Bk. 1, ch. 28, sec. 4, regarding the Statute of Northampton, 2 Edw. 3,
c.3(1328), that an affray could exist where one is armed with unusual weapons
which naturally cause terror to the people, but the court rejected those
"ancient English statutes, enacted in favour of the king, his ministers, and
other servants" which provided that "no man . . . except the king's servants,
& c. shall go or ride armed by night or by day." 13 Tenn. Reports (5 Yerg.)
358 (1833). The court seemed resentful of royal privilege in noting that the
same source adds "persons of quality are in no danger of offending against
this statute by wearing their common weapons" and, while rejecting the
existence of a common law abridgement of the right to bear arms (Id. at 359),
argued in the alternative that any such abridgement would be abrogated by the
state constitution, which provided "that the freemen of this State have a
right to keep and bear arms for their common defense."

  By this clause of the constitution, an express power is given and secured to
all the free citizens of the State to keep and bear arms for their defense,
without any qualification whatever as to their kind or nature.... Id. at 360.

  The classic antebellum opinion which held that the Second Amendment protects
an individual right from both state and federal infringement, but that the
manner in which arms could be borne was a proper subject for regulation, was
Nunn v. State, 1 Ga. 243 (1846). An ambiguous Georgia statute proscribed
breast pistols, but not horseman's pistols, which were not worn openly. While
upholding the proscription of concealed weapons, the court said that the state
constitutions "confer no new rights on the people which did not belong to them
before," that no legislative body in the Union could deny citizens the
privilege of being armed to defend self and country, and that the colonial
ancestors had this right which "is one of the fundamental principles, upon
which rests the great fabric of civil liberty...." Id. at 249.

  Anticipating twentieth century selective incorporation by referring to the
First, Fourth, Fifth, and Sixth Amendments as binding on both state and
federal governments, the court reasoned:

  The language of the second amendment is broad enough to embrace both Federal
and state government--nor is there anything in its terms which restricts its
meaning. . . . Is this a right reserved to the States or to themselves? Is it
not an unalienable right, which lies at the bottom of every free government?
We do not believe that, because the people withheld this arbitrary power of
disfranchise- ment from Congress, they ever intended to confer it on the local
legislatures. This right is too dear to be confided to a republican
legislature. Id. at 250.

  The Georgia court explained the relation between individual arms possession
and the militia by reference to the fact that "in order to train properly that
militia, the unlimited right of the people to keep and bear arms shall not be
impaired," (Id. at 251), and added that both constitutional and natural rights
were at stake. Contending that the state governments were prohibited from
violating the rights to assembly and petition, against unreasonable searches
and seizures, to an impartial jury in criminal prosecutions, and to assistance
of counsel, the court continued:

  Nor is the right involved in this discussion less comprehensive or valuable:
"The right of the people to bear arms shall not be infringed." 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 such merely as are used by
the militia, shall not be infringed, curtailed or broken in upon, in the
smallest degree; and all this for the important end to be attained: the
rearing up and qualifying a well-regulated militia, so vitally necessary to
the security of a free State. Our opinion is that any law, State or Federal,
is repugnant to the Constitution, and void, which contravenes this right....
Id. at 251.

  In the Texas case of Cockrum v. State, 24 Tex. 394 (1859), the Court
explained that the object of the Second Amendment was that "the people cannot
be effectually oppressed and enslaved, who are not first disarmed." Id. at
401, and added:

  The right of a citizen to bear arms, in lawful defense of himself or the
State, is absolute. He does not derive it from the State government. It is one
of the "high powers" delegated directly to the citizen, and "is excepted out
of the general powers of government." A law cannot be passed to infringe upon
or impair it, because it is above the law, and independent of the lawmaking
power. Id. at 401-402.

        C. SLAVERY AND THE DRED SCOTT DILEMMA

  Despite the general rule in the antebellum courts that the Second Amendment
guaranteed an individual right to keep and bear arms free from both federal
and state infringement, to disarm blacks a few courts took the view that only
citizens could have arms and that the Second Amendment did not apply to the
states. In some states, free and slave blacks were disarmed by law to maintain
their servile condition. State legislation which prohibited arms bearing by
blacks was held to be constitutional owing to the lack of status of African
Americans as citizens, despite the fact that the United States Constitution
and most state constitutions referred to arms bearing as a right of "the
people" rather than "the citizen."

  In State v. Newsom, 27 N.C. 203 (1844), the Supreme Court of North Carolina
upheld "an act to prevent free persons of color from carrying fire arms" on
the ground that "the free people of color cannot be considered as citizens."
Id. at 204. The court also stated: "in the second article of the amended
Constitution, the States are neither mentioned nor referred to. It is
therefore only restrictive of the powers of the Federal Government." Id. at
207. In Cooper v. Savannah, 4 Ga. 72 (1848), Georgia found its similar
provision constitutional on the following logic: "Free persons of color have
never been recognized here as citizens, they are not entitled to bear arms,
vote for members of the legislature, or to hold any civil office." Id. at 72.

  The practical hardships suffered by individual blacks due to restrictive
legislation is exemplified in State v. Hannibal, 51 N.C. (6 Jones) 57 (1859),
which indicates that in the eighteenth century it was not illegal for a black
to carry guns, but he was required to obtain a court certificate to hunt. An
enactment in 1854 provided that "no slave shall go armed with a gun, or shall
keep such weapons," with a penalty of up to 39 lashes. Id. at 57. In this
instance, a master had given two slaves guns to guard his store at night, and
the slaves were sentenced to twenty lashes each. Id. at 57.

  Just as virtually the only antebellum state cases which limited the right to
have arms functioned to disarm blacks, the ruling of the U.S. Supreme Court in
Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857), conceded
that if members of the African race were "citizens," they would be "entitled
to the privileges and immunities of citizens" and would be exempt from special
"police regulations" applicable to them.

  It would give to persons of the negro race, who were recognized as citizens
in any one State of the Union, the right to enter every other State whenever
they pleased, singly or in companies . . .; and it would give them full
liberty of speech . . .; to hold public meetings upon political affairs, and
*to keep and carry arms wherever they went*. (emphasis added) 60 U.S. at 417.

  It is clear, therefore, that the Supreme Court included among the rights of
every citizen the right to have arms wherever he goes; it is equally evident
that in granting citizenship to African Americans by Amendments XIII and XIV,
blacks were later guaranteed the fundamental rights of citizens. The Court's
language also suggests that the right to have and carry arms anywhere is a
right of national citizenship which the states cannot infringe any more than
can the federal government--that the Second Amendment applies to the states.

  Explaining further the rights of citizens, Chief Justice Taney observed
that:

  The Federal Government can exercise no power over his person or property,
beyond what that instrument confers, nor lawfully, deny any right which it has
reserved.... Nor can Congress deny the people the right to keep and bear arms,
nor the right to trial by jury, nor compel anyone to be a witness against
himself in a criminal proceeding. 60 U.S. at 450.    III. The Framers of the
fourteenth amendment intended that the guarantees of the second amendment
would be applied to the States

  After the War Between the States, judicial commentators continued to
interpret the Second Amendment as protecting an individual right from both
state and federal infringement. The right to keep and bear arms and other Bill
of Rights freedoms were viewed as common law rights explicitly protected by
the Constitution. T. Farrar, Manual of the Constitution, 59, 145 (1867). Joel
P. Bishop wrote in 1865:

  The constitution of the United States provides, that, "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." This provision is found
among the amendments; and; though most of the amendments are restrictions on
the General Government alone, not on the States, this one seems to be of a
nature to bind both the State and National legislatures. II J. Bishop,
Commentaries on the Criminal Law, Section 124 (1865).

  Yet Bishop's references to "statutes relating to the carrying of arms by
negroes and slaves" (II J. Bishop, supra, n. 2, at 120, n. 6), and to an "act
to prevent free people of color from carrying firearms" (Id. at 125, n. 2)
exemplified the need for further constitutional guarantees to clarify and
protect the rights of all individuals.

        A. FIREARMS AND THE ABOLITION OF SLAVERY

  Having won their national independence from England through armed struggle,
post-Revolutionary War Americans were acutely aware that the sword and
sovereignty go hand-in-hand, and that distribution of firearms among the
oppressed ushered in a new epoch in the human struggle for freedom.
Furthermore, both proponents and opponents of slavery were cognizant that an
armed black population meant the abolition of slavery, although some blacks
were trusted with arms to guard property, for self defense, and for hunting.
This sociological fact explained not only the legal disarming of blacks, but
also the advocacy of a weapons culture by abolitionists. Having employed the
instruments for self-defense against his pro-slavery attackers, abolitionist
and Republican Party founder Cassius Marcellus Clay wrote that " 'the pistol
and the Bowie knife' are to us as sacred as the gown and the pulpit." 7 The
Writings of Cassius Marcellus Clay, 257 (H. Greeley ed. 1848).

             B. THE CIVIL RIGHTS ACT OF 1866

  After the Civil War, the slave codes, which limited access of blacks to
land, to arms, and to the courts, began to reappear in the form of black
codes, (W. DuBois, Black Reconstruction in America, 167, 172, and 223 (1962),
E. Coulter, The South During Reconstruction 40 (1947)) and United States
legislators turned their attention to the protection of the freedmen. In
support of Senate Bill No. 9 which declared as void all laws in the rebel
states which recognized inequality of rights based on race, Sen. Henry Wilson
(R., Mass.) explained in part: "In Mississippi rebel State forces, men who
were in the rebel armies, are traversing the State, visiting the freedmen,
disarming them, perpetrating murders and outrages on them...." Cong. Globe,
39th Cong., 1st Sess., pt. 1, 40 (Dec. 13, 1865).

  When Congress took up Senate Bill No. 61, which became the Civil Rights Act
of 1866, (14 Stat. 27 (1866)) Sen. Lyman Trumbull (R., Ill.), Chairman of the
Senate Judiciary Committee, indicated that the bill was intended to prohibit
inequalities embodied in the black codes, including those provisions which
"prohibit any negro or mulatto from having fire-arms." Cong. Globe, 39th
Cong., 1st Sess., pt. 1, 474 (Jan. 29, 1866). In abolishing the badges of
slavery, the bill would enforce fundamental rights against racial
discrimination in respect to civil rights, the rights to contract, sue and
engage in commerce, and equal criminal penalties. Sen. William Saulsbury (D.,
Delaware) added:

  In my State for many years, and I presume there are similar laws in most of
the southern states, there has existed a law of the State based upon and
founded in its police power, which declares that free negroes shall not have
the possession of firearms or ammunition. This bill proposes to take away from
the States this police power. . . ." Id. at 474.

  The Delaware Democrat opposed the bill on this basis, anticipating a time
when "a numerous body of dangerous persons belonging to any distinct race"
endangered the state, for "the State shall not have the power to disarm them
without disarming the whole population." Id. at 478. Thus, the bill would have
prohibited legislative schemes which in effect disarmed blacks, but not
whites. Still, supporters of the bill were soon to contend that arms bearing
was a basic right of citizenship or personhood.

  In the meantime, the legislators turned their attention to the Freedman's
Bureau Bill. Rep. Thomas D. Eloit (R., Mass.) attacked an Opelousas, Louisiana
ordinance which deprived blacks of various civil rights, including the
following provision: "No freedman who is not in the military service shall be
allowed to carry firearms, or any kind of weapons, within the limits of the
town of Opelousas without the special permission of his employer . . . and
approved by the mayor or president of the board of police." Id. at 517 (Jan.
30, 1866). And Rep. Josiah B. Grinnell (R., Iowa) complained: "A white man in
Kentucky may keep a gun; if a black man buys a gun he forfeits it and pays a
fine of five dollars, if presuming to keep in his possession a musket which he
has carried through the war." Id. at 651 (Feb. 5,1866).

  As debate returned to the Civil Rights Bill, Rep. Henry J. Raymond (R.,
N.Y.) explained of the rights of citizenship: "Make the colored man a citizen
of the United States and he has every right which you or I have as citizens of
the United States under the laws and Constitution of the United States.... He
has a defined status; he has a country and a home; a right to defend himself
and his wife and children; a right to bear arms...." Id., pt. 2, 1266 (Mar. 8,
1866). Rep. Roswell Hart (R., N.Y.) concluded that it was the duty of the
United States to guarantee that the states have a republican form of
government, "A government . . . where 'no law shall be made prohibiting a free
exercise of religion;' where 'the right of the people to keep and bear arms
shall not be infringed;' . . ." Id. at 1629 (Mar. 24, 1866).

  Rep. Sidney Clarke (R., Kansas) objected to an 1866 Alabama law providing:
"That it shall not be lawful for any freedman, mulatto, or free person of
color in this State to own firearms, or carry about his person a pistol or
other deadly weapon." Id. at 1838 (April 7, 1866). Clarke also attacked
Mississippi, "whose rebel militia, upon the seizure of the arms of black Union
soldiers, appropriated the same to their own use." Id. at 1838.

  Sir, I find in the Constitution of the United States an article which
declares that "the right of the people to keep and bear arms shall not be
infringed," For myself, I shall insist that the reconstructed rebels of
Mississippi respect the Constitution in their local laws.... Id. at 1838.

                C. THE FOURTEENTH AMENDMENT

  The need for a more solid foundation for the protection of freedmen as well
as white citizens was recognized, and the result was a significant new
proposal--the Fourteenth Amendment. A chief exponent of the amendment, Sen.
Jacob M. Howard (R., Mich.), referred to the "personal rights guaranteed and
secured by the first eight amendments of the Constitution; such as freedom of
speech and of the press; ....*the right to keep and to bear arms*... "
[emphasis added] Cong. Globe, 39th Cong. 1st Sess. pt. 3, 2765 (May 23, 1866).
Adoption of the Fourteenth Amendment was necessary because these rights were
not then effectively guaranteed against state legislation. "The great object
of the first section of this amendment is, therefore, to restrain the power of
the States and compel them at all times to respect these great fundamental
guarantees." Id. at 2766.

  The Fourteenth Amendment was viewed as necessary to buttress the objectives
of the Civil Rights Act of 1866. Rep. George W. Julian (R., Ind.) noted that
the act

  Is pronounced void by the jurists and courts of the South. Florida makes it
a misdemeanor for colored men to carry weapons without a license to do so from
a probate judge, and the punishment of the offense is whipping and the
pillory. South Carolina has the same enactments.... Cunning legislative
devices are being invented in most of the States to restore slavery in fact.
Id. at pt. 4, 3210 (June 16,1866.)

                D. THE ANTI-KKK ACT

  Within three years of the adoption of the Fourteenth Amendment in 1868,
Congress was considering enforcement legislation to suppress the Ku Klux Klan.
The famous report by Rep. Benjamin F. Bulter (R., Mass.) on violence in the
South assumed that the right to keep arms was necessary for protection not
only against the militia, but also against local law enforcement agencies.
Noting instances of "armed confederates" terrorizing the negro, the report
stated that "in many counties they have preceded their outrages upon him by
disarming him, in violation of his right as a citizen to 'keep and bear arms,'
which the Constitution expressly says shall never by infringed," 1464 H.R.
Rep. No. 37, 41st Cong., 3rd Sess. 3 (Feb. 20, 1871). The congressional power
based on the Fourteenth Amendment to legislate to prevent states from
depriving any U.S. citizen of life, liberty, or property accounted for the
following provision of the committee's anti-KKK bill:

  That whoever shall, without due process of law, by violence, intimidation,
or threats, take away or deprive any citizen of the United States of any arms
or weapons he may have in his house or possession for the defense of his
person, family, or property, shall be deemed guilty of a larceny thereof, and
be punished as provided in this act for a felony. Cong. Globe, 42nd Cong., 1st
Sess., pt. 1, 174 (Mar. 20, 1871).

  Rep. Butler explained the purpose of this provision in these words:

  Section eight is intended to enforce the well-known constitutional provision
guaranteeing the right in the citizen to 'keep and bear arms,' and provides
that whoever shall take away, by force or violence, or by threats and
intimidation, the arms and weapons which any person may have for his defense,
shall be deemed guilty of larceny of the same. This provision seemed to your
committee to be necessary, because they had observed that, before these
midnight marauders made attacks upon peaceful citizens there were very many
instances in the South where the sheriff of the county had preceded them and
taken away the arms of their victims. This was specially noticeable in Union
County, where all the negro population were disarmed by the sheriff only a few
months ago under the order of the judge....; and then, the sheriff having
disarmed the citizens, the five hundred masked men rode at night and murdered
and otherwise maltreated the ten persons who were in jail in that county. H.R.
Rep. No. 37, supra, note 38, at 7-8.

  The bill was referred to the Judiciary Committee, and when later reported as
H.R. No. 320 the above section was deleted--undoubtedly because its
proscription extended to simple individual larceny over which Congress had no
constitutional authority, and because state or conspiratorial action involving
the disarming of blacks would be covered by more general provisions of the
bill. Supporters of the rewritten anti-KKK bill continued to show the same
concern over the disarming of freedmen as they had prior to the adoption of
the Fourteenth Amendment. Sen. John Sherman (R., Ohio) stated the Republican
position: "Wherever the negro population preponderates, there they [the KKK]
hold their sway, for a few determined men. . . can carry terror among ignorant
negroes . . . without arms, equipment, or discipline." Cong. Globe, 42nd Cong.
1st Sess., pt. 1, 154 (Mar. 18, 1871).

  Further comments clarified that the right to arms was a necessary condition
for the right of free speech. Sen. Adelbert Ames (R., Miss.) averred: "In some
counties it was impossible to advocate Republican principles, those attempting
it being hunted like wild beasts; in others, the speakers had to be armed and
supported by not a few friends." Id. at 196. (Mar. 21, 1871). Rep. William L.
Stoughton (R., Mich.) added: "If political opponents can be marked for
slaughter by secret bands of cowardly assassins who ride forth with impunity
to execute the decrees upon the unarmed and *defenseless*, it will be fatal
alike to the Republican party and civil liberty." [Emphasis added] Id. at 321
(Mar. 28, 1871).

  Section 1 of the bill, which was taken partly from Section 2 of the Civil
Rights Act of 1866, and survives today as 42 U.S.C. 1983 was meant to enforce
Section 1 of the Fourteenth Amendment by establishing a remedy for deprivation
under color of state law of federal constitutional rights of all people, not
only former slaves. This portion of the bill provided:

  That any person who, under color of any law, statute, ordinance, regulation,
custom or usage of any State shall subject, or cause to be subjected, any
person within the jurisdiction of the United States to the deprivation of any
rights, privileges, or immunities to which . . . he is entitled under the
Constitution or laws of the United States, shall . . . be liable to the party
injured in an action at law, suit in equity, or other propoer proceeding for
redress . . . Id. pt. 2. Appendix, 68. 17 Stat. 13 (1871).

  Rep. Washington C. Whitthorne (D., Tenn.), who complained that "in having
organized a negro militia in having disarmed the white man," the Republicans
had "plundered and robbed" the whites of South Carolina through "unequal
laws," objected to Section 1 of the anti-KKK bill on these grounds.

  It will be noted that by the first section suits may be instituted without
regard to amount or character of claim by any person within the limits of the
United States who conceives that he has been deprived of any right, privilege,
or immunity secured him by the Constitution of the United States, under color
of any law, statute, ordinance, regulation, custom, or usage of any State.
This is to say, that if a police officer of the city of Richmond or New York
should find a drunken negro or white man upon the streets with a loaded pistol
flourishing it, &c., and by virtue of any ordinance, law or usage, either of
city or State, he takes it right away, the officer may be sued, *because the
right to bear arms is secured by the Constitution*, and such suit brought in
distant and expensive tribunals. [Emphasis added] Cong. Globe, 42nd Cong., 1st
Sess., pt. 1, 337 (Mar. 29, 1871).

  The Tennessee Democrat assumed that the right to bear arms was absolute,
deprivation of which created a cause of action against state agents under
Section 1 of the anti-KKK bill. In the minds of the bill's supporters,
however, the Second Amendment as incorporated in the Fourteenth Amendment
recognized a right to keep and bear arms safe from state infringement, not a
right to commit assault or otherwise engage in criminal conduct with arms by
pointing them at people or brandishing them so as to endanger others. Contrary
to the congressman's exaggerations, the proponents of the bill had the
justified fear that the opposite development would occur, i.e. that a black or
white man for political reasons would be unconstitutionally deprived of his
right to possess arms by state action. Significantly, none of the
representative's colleagues disputed his statement that state agents could be
sued under the predecessor to Section 1983 for deprivation of the right to
keep arms.

  Debate over the anti-KKK bill naturally required exposition of Section 1 of
the Fourteenth Amendment, and none was better qualified to explain that
section than its draftsman, Rep. John A. Bingham (R., Ohio):

  Mr. Speaker, that the scope and meaning of the limitations imposed by the
first section, fourteenth amendment of the Constitution may be more fully
understood, permit me to say that the privileges and immunities of citizens of
a State, are chiefly defined in the first eight amendments to the Constitution
of the United States ....   These eight articles . . . never were limitations
upon the power of the States, until made so by the fourteenth amendment. The
words of that amendment, "no State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States" are an
express prohibition upon every State of the Union .... Id. at pt. 2, Appendix
84 (Mar. 31, 1871).

  This is a most explicit statement of the incorporation thesis by the
architect of the Fourteenth Amendment. Although he based the incorporation on
the Privileges and Immunities Clause and not the Due Process Cause as have
subsequent courts of selective incorporation, Rep. Bingham could hardly have
anticipated the judicial metaphysics of the twentieth century in this respect.
In any case, whether based on the Due Process Cause or on the Privileges and
Immunities Clause, the legislative history supports the view that the
incorporation of Amendments I-VIII was clear and unmistakable in the minds of
the legislators attempting to effectuate the provision of the Fourteenth
Amendment.

  Rep. Henry L. Dawes (R. Mass.) also asserted the incorporation thesis when
he argued:

  The rights, privileges and immunities of the American citizen, secured to
him under the Constitution of the United States, are the subject-matter of
this bill....   In addition to the original rights secured to him in the first
article of amendments he had secured the free exercise of his religious
belief, and freedom of speech and of the press. Then again he has secured to
him the *right to keep and bear arms in his defense*.... [Dawes then
summarizes the remainder of the first eight amendments.]   And still later,
sir, after the bloody sacrifice of our four years' war, we gave the most grand
of all these rights, privileges, and immunities, by one single amendment to
the Constitution, to four millions of American citizens.   [I]t is to protect
and secure to him in these rights, privileges, and immunities this bill is
before the House. [emphasis added] Cong Globe, 42nd Cong., 1st. Sess., pt. 1,
475-476 (April 5, 1871).

  After passage of the anti-KKK bill, discussion concerning arms persisted as
interest developed toward what became the Civil Rights Act of 1875, now 42
U.S.C. 1984. A report on affairs in the South by Sen. John Scott (R., Penn.)
indicated the need for further enforcement legislation: "negroes who were
whipped testified that those who beat them told them they did so because they
had voted the radical ticket, and in many cases made them promise that they
would not do so again, and wherever they had guns took them from them." 1484
S. Rep. No. 41, 42nd Cong., 2nd Sess., pt. 1, 35 (Feb. 19, 1872).

  Following the introduction of the Civil Rights Bill the debate over the
meaning of the Privileges and Immunities Clause returned. Sen. Matthew H.
Carpenter (R., Wisc.) cited Cummings v. Missouri, 71 U.S. 277, 321 (1866) a
case contrasting the French legal system, which allowed deprivation of civil
rights, "and among these of the right of voting, . . . of bearing arms," with
the American legal system, stating that the Fourteenth Amendment prevented
states from taking away the privileges of the American citizen. Cong Globe,
2nd Sess., pt. 1, 762 (Feb. 1, 1872).

  Sen. Allen G. Thurman (D., Ohio) argued that the "rights, privileges, and
immunities of a citizen of the United States" were included in Amendments
I-VIII. Reading and commenting on each of these amendments, he said of the
Second: "Here is another right of a citizen of the United States, expressly
declared to be his right--the right to bear arms; and this right, says the
Constitution, shall not be infringed." Id. at pt. 6, Appendix, 25-26 (Feb. 6,
1872).

  The incorporationist thesis was stated succinctly by Senator Thomas M.
Norwood (D., Ga.) in one of the final debates over the Civil Rights Bill.
Referring to a U.S. citizen residing in a Territory, Senator Norwood stated:

  His right to bear arms, to freedom of religious opinion, freedom of speech,
and all others enumerated in the Constitution would still remain indefeasibly
his, whether he remained in the Territory or removed to a State.   And those
and certain others are the privileges and immunities which belong to him in
common with every citizen of the United States, and which no State can take
away or abridge, and they are given and protected by the Constitution.   The
following are most, if not all, the privileges and immunities of a citizen of
the United States:   The right to the writ of habeas corpus, of peaceable
assembly and of petition; . . . *to keep and bear arms;*... from being
deprived of the right to vote on account of race, color or previous condition
of servitude. [emphasis added] Cong Rec., 43rd Cong., 1st Sess., pt. 6,
Appendix 241-242 (May 4, 1874).

  Arguing that the Fourteenth Amendment created no new rights but declared
that "certain existing rights should not be abridged by States," the Georgia
Democrat explained:

  Before its [Fourteenth Amendment] adoption any State might have established
a particular religion, or restricted freedom of speech and of the press, or
*the right to bear arms*.... A State could have deprived its citizens of any
of the privileges and immunities contained in those eight articles, but the
Federal Government could not....   ...And the instant the fourteenth amendment
became a part of the Constitution, every State was at that moment disabled
from making or enforcing any law which would deprive any citizen of a State of
the benefits enjoyed by citizens of the United States under the first eight
amendments to the Federal Constitution. (emphasis added) Id. at 242.

  In sum, in the understanding of Southern Democrats and Radical Republicans
alike, the right to keep and bear arms, like other Bill of Rights freedoms,
was made applicable to the states by the Fourteenth Amendment.

                         REFERENCES

1.  Although the common law in effect in the colonies did not develop any
limitation on the absolute right of individuals to keep arms, it did recognize
certain restrictions on the manner in which individuals could use arms.

2.  Individual colonists, of course, kept their own firearms, with powder and
shot, in their residences.

3.  Justice Story wrote in 1833: "The militia is the natural defense of a free
country against sudden foreign invasions, domestic insurrections, and domestic
usurpations of power by rulers. It is against sound policy for a free people
to keep up large military establishments and standing armies in time of peace,
both from the enormous expenses, with which they are attended, and the facile
means, which they afford to ambitious and unprincipled rulers, to subvert the
government, or trample on the rights of the people. The right of the citizen
to keep and bear arms has justly been considered, as the palladium of the
liberties of a republic; since it offers a strong moral check against the
usurpation and arbitrary power of rulers; and will generally, even if these
are successful in the first instance, enable the people to resist and triumph
over them." (emphasis added.) 3 Commentaries on the Constitution of the United
States, Section 1890, pp. 746-747 (1833).

4.  Actually, the militia embraces a larger class of persons than today's
statutory unorganized militia since it consists of at least all persons
"physically capable of acting in concert for the common defense." U.S. v.
Miller, 307 U.S. 174, 179 (1939). The Virginia Constitution, upon which the
Bill of Rights was modeled, provides that the militia is "composed of the body
of the people." Article I, Section I3.

5.  Of the twelve proposed amendments, all but the first two dealt with the
protection of the rights of individuals, all but the first two were ratified.
Since, of the ten remaining, Amendments 1 and 3 through 10 have repeatedly
been held to secure fundamental individual rights, it is logical that the
Second Amendment also secures a fundamental individual right.

6.  The word "people" as used in the First, Fourth, Ninth, and Tenth
Amendments has consistently been construed to mean individual.

7.  This view is supported by the Congressional Research Office of the Library
of Congress which has observed, "At what point regulation or prohibition of
what classes of firearms would conflict with the [Second] Amendment, whether
there would be a conflict, the Miller case does little more than cast a faint
degree of illumination toward answering." The Constitution of the United
States of America Analysis and Interpretation, Senate Document No. 92-82.

8.  Applying this test, the defendant would have little difficulty today in
demonstrating that possession of such a shotgun is protected by the Second
Amendment, since shotguns were military issue in both World Wars, Korea, and
Vietnam.

9.  Numerous cases have held that a handgun is an arm for constitutional
purposes. for example, in State v. Kerner, 181 N.C. 574, 107 S.E. 222, 224
(1921), the Court observed that the "historical use of pistols as 'arms' of
offense and defense is beyond controversy...." Similar holdings are found in
In re Brickey, 8 Ida. 597, 70 P. 609 (1902) and State v. Rosenthal, 75 Vt.
295, 55 A. 610 (1903). Moreover, in colonial times pistols saw considerable
service as a personal weapon. As a noted historian observed: It was considered
normal for civilians to carry pocket pistols for protection while traveling .
. . Among eighteenth century civilians who traveled or lived in large cities,
pistols were common weapons. Usually they were made to fit into pockets, and
many of these small arms were also carried by military officers. George C.
Neumann, The History of Weapons of the American Revolution, pp. 150-151
(Bonanza Books, N.Y. 1967).

10.  Although Tot was appealed to the Supreme court, the Second Amendment
issue was not addressed by that Court.

11.  This view, moreover, is consistent with the common law which prohibited
the bearing of arms when carried in such a manner as would terrify the people.
4 Blackstone Commentaries 149. Furthermore it is consistent with the concept
of the militia as a body of persons who maintained firearms in their homes for
self-defense and to be ready to contribute to the common defense.

12.  But see State v. Reid, 1 Ala. Reports 612, 616-7 (1840), while holding
that a statute prohibiting the carrying of concealed weapons was not
incompatible with the right to keep and bear arms in defense of self and
state, added: "A statute which, under the pretense of regulating, amounts to a
destruction of the right, or which requires arms to be so borne as to render
them wholly useless for the purpose of defence, would be clearly
unconstitutional."

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                        110

     THE RIGHT TO BEAR ARMS: THE DEVELOPMENT             OF THE AMERICAN
EXPERIENCE

                  JOHN LEVIN*

                I. INTRODUCTION

As The crime rate in the United States grows and pressures mount for laws
restricting the use of firearms, the need for an under- standing of the
development of the "right to bear arms" has increased. Perhaps more than any
other "right" enumerated in the federal and state constitutions, the "right"
to bear arms was directed to maintaining a balance of power within our
society. The "right to bear arms" developed at a time when a well armed
population was necessary for defense, and when the social and political
structure was kept in balance by a balance of armed power.

  While the American "right to bear arms" developed at the time of the
Revolution, it grew out of the duty imposed on the early colonists to keep
arms for the defense of their isolated and endangered communities. The
definition of "bearing arms" as the phrase was used in legal instruments up to
revolutionary times was "serving in an organized armed force."111 It did not
imply any personal right to possess weapons. For example, when Parliament in
drafting the English Bill of Rights2 or Blackstone in his Commentaries on the
Laws of England3 intended to convey the meaning of a personal right to possess
arms, they spoke of the right to *have* arms, not of the right to *bear* arms.

                II. EARLY HISTORY

                A. The Colonial Period

  The earliest colonial statutes requiring that the colonists arm themselves
were Virginia statutes of 1623 stating that "no man go or send abroad without
a sufficient party will [sic] armed," and that "men go not to worke in the
ground without their arms (and a centinell upon them)."4 In 1658 Virginia
required that "every man able to beare armes have in his house a fixt gunn."5
The colony, being unable to afford to arm its militia or troops, required them
to arm themselves.3 If the militia, however, found itself under-armed, the
county courts could levy on the population for the provision of arms and
distribute them to those not provided--the distributees then paying for the
arms at a reasonable rate.7

  Massachusetts in 1632 required each person to "have . . . a suf- ficient
musket or other serviceable peece for war . . . for himself and each man
servant he keeps able to beare arms."8 In the Code of 1672 men were to provide
their own arms, but arms would be supplied to those unable to obtain them. In
New York, each town was to keep a stock of arms, and each man between 16 and
60 was to have arms. Even those not obligated to serve in the militia were
required to keep arms and ammunition in their houses.10 The militia provisions
of the Connecticut Code of 1650 said, "All persons . . . shall beare arms . .
.; and every male person . . . shall have in continuall readiness, a good
muskitt or other gunn, fitt for service." South Carolina had similar codes.11

  This duty to keep and bear arms was limited by the interest of colonial
governments in preventing the use of firearms for harmful ends. In order to
prevent civil disturbances the colonial governments strove to keep arms from
falling into the "wrong hands." To provide against Negro insurrections,
Virginia forbade Negroes from carrying arms without their masters'
certificate.12 Pennsylvania had a similar provision by 1700, 13 and South
Carolina even required that the master keep all arms not in use safely locked
up in his house.14 Virginia forbade the sale of arms or ammunition to
Indians,15 and Massachusetts required that Indians possess a license to carry
a gun within certain areas of the colony.16

  In times of civil disturbance the colonies controlled arms to protect the
security of orderly government. For example, in 1692 the Massachusetts
Assembly felt it necessary to arrest "such as shall ride, or go armed
offensively before any of their majesties' justices or other of their officers
or ministers doing their office or elsewhere by night or by day, in fear or
affray of their majesties' people."17

  In addition to those laws preventing arms from falling into the hands of
those groups openly hostile to colonial society, statutes regulated the
conditions under which arms could be used. As the settlements grew crowded,
shooting was restricted in order to protect people and livestock. By 1678
Massachusetts forbade shooting "so near or into any House, Barn, Garden,
Orchards or High-Wayes in any town or towns of this Jurisdiction, whereby any
person or persons shall be or may be killed, wounded or otherwise damaged."18
In order to prevent fires caused by gunfire, Pennsylvania in 1721 forbade
firing a gun within the city of Philadelphia without a special license from
the governor.19 Pennsylvania also forbade hunting by anyone on improved lands
without the permission of the owner, and forbade those not qualified to vote
from hunting on unimproved lands without the permission of the owner.20

  Colonial statutes established a duty to keep and bear arms for the defense
of the colonies and regulated the use of the arms in circulation. The American
Revolution in turn provided fertile ground for the growth of the concept of
the right of revolution and the related right to bear arms.

                B. The Revolutionary Period

  During the revolutionary period the issue of arms and the bearing of arms
developed along two distinct lines. One line of development related to the
balance of military power between the people and their respective governments.
The people feared that if the state or federal government became too powerful,
that government would abridge the liberties of the people and impose its will
by force. The other line of development related to the balance of military
power between the governmental bodies of the union. The state governments
feared that if they entrusted too much power in the hands of the central
government, that government would destroy the political and military
independence of the states. Both lines of development concerned the creation
of a military balance within the political structure which would result in the
maintenance of liberty of the constituent parts--whether personal liberty
under a government or state liberty in a union; and both lines of development
resulted in the creation of a "right to bear arms" in order to insure the
liberty of those constituent parts.

  The colonists, fearful of oppression by governmental power, and being aware
of the events of 17th Century England, believed that liberty was guaranteed by
giving the rulers as little power as possible and by balancing governmental
power with popular power.21 The foremost factor in this balance of power was
the existence of a standing army. Standing armies had been used by the English
crown and by continental monarchs to impose their will on their subjects,22
and royal forces had been used by the English crown to intimidate and control
the colonies.23 In 1774 the Continental Congress declared that keeping a
"standing army in these colonies, in time of peace, without the consent of the
legislature of that colony, in which such army is kept, is against law."24 In
1775 the draftsmen of the Declaration of the Causes and Necessity of Taking up
Arms25 gave the presence of royal troops a prominent role in that declaration,
and several sections of the Declaration of Independence were given to the
issue.26 Colonial mistrust of standing armies extended even to colonial
troops. In 1776 Sam Adams wrote:

[A] standing army, however necessary it be at some times, is always dangerous
to the liberties of the people. Soldiers are apt to consider themselves as a
body distinct from the rest of the citizens. They have their arms always in
their hands. Their rules and their discipline is severe. They soon become
attached to their officers and disposed to yield implicit obedience to their
commands. Such a power should be watched with a jealous eye.27

                III CONSTITUTIONAL PROVISIONS

  The state constitutions framed during the War for Independence reflected the
fears of a standing army. The framers felt that such an army would create an
overbearing force at the disposal of the state governments. All the states
included provisions regarding standing armies and militia in their bills of
rights. Several had provisions similar to Virginia's:

  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; that
standing armies, in time of peace, should be avoided, as dangerous to liberty;
and that in all cases the military should be under strict subordination to,
and governed by, the civil power.28

  Several others were similar to that of Maryland:

XXV.     That a well-regulated militia is the proper and natural defense
  of a free government.

XXVJ.    That standing armies are dangerous to liberty, and ought not
to be raised or kept up, without the consent of the Legislature.

XXVII.   That in all cases, and at all times, the military ought to be
under strict subordination to and control of the civil power.

XXVIII.  That no soldier ought to be quartered in any house, in time of peace,
without the consent of the owner; and in time of war, in such manner only, as
the Legislature directs.

XXIX.    That no person, except regular soldiers, mariners, and Marines
 in the service of this State, or militia when in actual service, ought in any
case to be subject to or punishable by martial law.29

  Some specifically mentioned a "right to bear arms," such as Pennsylvania's:

  That the people have a right to bear arms for the defense of themselves and
the State; and as standing armies in the time of peace are dangerous to
liberty, they ought not to be kept up. And that the military should be kept
under strict subordination to, and governed by, the civil power.30

  North Carolina included a "right to bear arms" for the "defense of the
State,"31 and Massachusetts included such a right for "the common defense."32
Widespread copying by the draftsmen of state constitutions created, in part,
the similarity between provisions.33 These provisions were to be the basis of
the militia provisions in the federal Constitution and Bill of Rights.

  When the draftsmen of the majority of the state bills of rights wrote of
replacing the standing army with a popular militia, they believed it would
remove a source of arbitrary military power from the hands of the state
governments and replace it with a military less likely to oppress the
people.84 They attempted to structure the political and military balance in
the new states by making the governments less powerful and the citizens more
powerful. The "right to bear arms" was a more extreme and revolutionary
manifestation of this restructuring. By having a right to "bear arms," i.e.,
to serve in the armed forces of the state, the people would have far greater
military power than if the militia were merely the preferred defense, for the
state governments would be unable to maintain a narrowly based standing army
against the interests of the people. Rather the people would rely on their
"right" to bear arms and demand that the defense force be broadly based.

  The "right to *have* arms" was an adjunct to the right of revolution. The
right of revolution is the natural right of a people to overthrow their
government when that government no longer serves the purpose for which it was
formed. By the middle of the 18th century, Blackstone had recognized that the
primary rights of Englishmen-- "personal security, personal liberty, and
private property"--could not be maintained solely by law, for "in vain would
these rights be declared, ascertained, and protected by the dead letter of the
laws, if the constitution had provided no other method to secure their actual
enjoyment."35 There were auxiliary rights in order to enable the subject to
preserve the primary rights, and,

The fifth and last auxiliary right of the subject is that of having arms for
their defense, suitable to their condition and degree, and such as are allowed
by law. Which is indeed a public allowance, under due restrictions, of the
natural right of resistance and self-preservation when the sanctions of
society and laws are found insufficient to restrain the violence of
oppression.36

  The provisions in the state constitutions granting a "right to bear arms"
were not intended to permit a public allowance of the right of revolution. In
the first place, the phrase "to bear arms" only meant serving in an organized
armed force.37  In the second place, the right of revolution, or at least a
statement of the principle of that right, was specifically contained in other
sections of most state constitutions.35 In the third place, the guaranty of
the "right to bear arms" or similar statements of preference for the militia
was contained in that section of the constitutions directly concerned with
controlling the military power of the state and not in the section recognizing
the right of revolution.

  When the Constitutional Convention met on May 14, 1787, it was faced with
some issues quite dissimilar to those which had troubled the states. In the
years during and immediately following the Revolution, the doctrine of the
natural right of revolution was an accepted part of colonial political
theory.39 After the Revolution, however, the need for stable and orderly
government grew, and the philosophy of rebellion withered.40 The fundamental
problem facing the convention was not to support and nourish a revolutionary
situation, but to create a viable federal government out of the jealous and
independent states. One of the major aspects of this problem was the creation
of a national army. The delegates to the convention feared that if the new
federal government could obtain sufficient military power, it could then
impose its will on the states and on the people.

  The delegates, however, did not consider the new federal standing army to be
a danger to the states or the people since Congress would have strict control
over the appropriations for troops, and most delegates assumed that the
standing army would be small.41 The Articles of Confederation had left
complete control of land forces in the hands of the states which raised
them,42 and by 1788 the Army of the Confederation consisted of only 679
officers and men.43 The question of the balance of military power between the
states and the federal government was raised rather on the issue of federal
control over the state militia.

On August 18,1787, a motion was made in the convention to give Congress the
power "to make laws for the regulation and discipline of the Militia of the
several States reserving to the States the appointments of Officers."44 Here
the military power of the states was at stake. John Dickinson exclaimed that
"we are come now to a most important matter, that of the sword . . . The
states never would or ought to give up all authority over the Militia."45
Oliver Ellsworth believed that "the whole authority over the Militia ought by
no means to be taken away from the States whose consequence would pine away to
nothing after such a sacrifice of power."46 Supporters of the motion recalled
how ineffectual the militia was during the Revolution. They stressed the need
for an effective and centralized military.47

  When the debate continued on August 23rd, Edmund Randolph felt that the
militia could be trusted to look after the liberties of the people. He asked,
"What dangers there could be that the Militia could be brought into the field
and made to commit suicide on themselves. This is a power at cannot from its
nature be abused, unless indeed the whole mass should be corrupted."48
Elbridge Gerry stated, when a motion was made to allow the federal government
to appoint the general officers, that "as the States are not to be abolished,
he wondered at the attempts that were made to give powers inconsistent with
their existence."49 James Madison replied: "As the greatest danger is that of
disunion of the States it is necessary to guard against it by sufficient
powers to the Common Government and as the greatest danger to the liberty is
from large standing armies, it is best to prevent them by an effectual
provision for a good Militia."50

  A compromise was reached whereby the federal government would maintain a
standing army plus have the authority to regulate and call out the militia,
and the states would have authority over the militia except when it was called
into federal service. The results of the compromise appear in article I,
section 8 of the United States Constitution declaring that Congress shall have
power:

To make Rules for the Government and Regulation of the land and naval Forces;
To raise and support Armies, but no Appropriation of Money to that Use shall
be for a longer term than two Years; To provide for calling forth the Militia
to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for
governing such Parts of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the Officers,
and the Authority of training the Militia according to the discipline
prescribed by Congress;

Thus, a tentative military balance was achieved between the federal government
and the states.

  Before the Constitution was ratified, however, its provisions were debated
before the state legislatures and in the press. The militia provisions were
again argued in terms of the balance of military power between the states and
the federal government. Charles Pinckney argued for a federalized militia to
give the federal government the power to impose its will on the states:

The exclusive right of establishing regulations for the Government of the
Militia of the United States ought certainly to be vested in the Federal
Councils. As standing Armies are contrary to the Constitutions of most of the
States, and the nature of our Government, the only immediate aid and support
that we can look up to, in case of necessity, is the Militia . . . Independent
of our being obliged to rely on the Militia as a security against Foreign
Invasions or Democratic Convulsions, they are in fact the only adequate force
the Union possesses, if any should be requisite to coerce a refractory or
negligent Member, and to carry the Ordinances and Decrees of Congress into
execution. This, as well as the cases I have alluded to, will sometimes make
it proper to order the Militia of one State into another. At present the
United States possesses no power of directing the Militia, and must depend
upon the States to carry their Recommendations upon this subject into
execution . . . To place therefore a necessary and Constitutional power of
defense and coercion in the hands of the Federal authority, and to render our
Militia uniform and national, I am decidedly in opinion they should have
exclusive right of establishing regulations for their Government and
Discipline, which the States should be bound to comply with, as well as with
their Regulations for any number of Militia, whose march into another State,
the Public safety or benefit should require.61

  Luther Martin, speaking before the Maryland legislature, argued against the
federalized militia as it would give the federal government so great a power
that it could destroy the integrity of the states:

[Through] this extraordinary provision, by which the Militia, the only defense
and protection which the State can have for the security of their rights
against arbitrary encroachments of the general government, is taken entirely
out of the power of their respective States, and placed under the power of
Congress .... It was argued at the Constitutional convention that, if after
having retained to the general government the great powers already granted,
and among those, that of raising and keeping up regular troops, without
limitations, the power over the Militia should be taken away from the States,
and also given to the general government, it ought to be considered as the
last coup de grace to the State governments; that it must be the most
convincing proof, the advocates of this system design the destruction of the
State governments, and that no professions to the contrary ought to be
trusted: and that every State in the Union ought to reject such a system with
indignation, since, if the general government should attempt to oppress and
enslave them, they could not have any possible means of self- defense ....62

  Superimposed upon this debate over the balance of power between the states
and the federal government was the issue of the balance of power between the
people themselves and the new government. To assuage fears that the new
federal government would infringe upon the rights of the people, the authors
of The Federalist raised the factors of militia, arms, and the right of
revolution in describing how the new government could be controlled.
Federalist Number 28 mentioned the right of revolution:

If the representatives of the people betray their constituents, there is then
no recourse left but in the exertion of that original right of self- defense
which is paramount to all positive forms of government.63

And the military power of the states:

When will the time arrive that the federal government can raise and maintain
an army capable of erecting a despotism over the great body of the people of
an immense empire, who are in a situation, through the medium of their States
governments, to take measure for their own defense, with all the celerity,
regularity and system of independent nations?54

The 46th Federalist by Madison discussed the armed population and its
relationship to the militia and the central government:

Beside the advantage of being armed, which the Americans possess over the
people of almost every other nation, the existence of subordinate governments
to which the people are attached, and by which the Militia officer are
appointed, forms a barrier against the enterprises of ambition, more
insurmountable than any which a simple government of any form can admit.
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.55

  Though the Constitution was ratified, the issue of the federal militia was
not resolved until adoption of the second amendment. Several of the states had
suggested during their ratifying conventions that a bill of rights be added to
the United States Constitution.56 When such a bill of rights was debated in
the First Congress, the militia amendment was first reported out of committee
of the House of Representatives reading:

A well-regulated Militia, composed of the body of the people, being the best
security of a free State, the right of the people to keep and bear arm shall
not be infringed; but no person religiously scrupulous shall be compelled to
bear arms.57

Several of the representatives objected to the provision excusing those people
"religiously scrupulous" from bearing arms. Elbridge Gerry stated that as the
purpose of the militia "is to prevent the establishment of a standing army" it
was "evident, that under this provision, together with their own powers,
Congress could take such measures with respect to a Militia, as to make a
standing army necessary." This could be accomplished by Congress using "a
discretionary power to exclude those from the Militia who have religious
scruples."68 In such event, so many citizens would attempt to avoid Militia
duty on religious grounds that a standing army would be necessary for national
defense.

  In any event the religious exemption from the militia was dropped and the
amendment in its final form read:

                THE RIGHT TO BEAR ARMS

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.59

  From the debates it seems clear that the intent of Congress in passing the
second amendment was to prevent the federal government from destroying the
state militia. Pinckney would keep a defense force uniform and at the disposal
of the federal government. Martin was assured that the federal government
would not emasculate the states and leave them at the mercy of federal troops.
The "right to bear arms" was a corporate right used to insure that a desired
balance between liberty and authority within the union would be maintained.

  Attempts were made to include a personal right to have arms in the Bill of
Rights. Sam Adams introduced a bill in the Massachusetts legislature that the
state support an amendment holding that the "Constitution be never construed
to authorize Congress to . . . prevent the people of the United States, who
are peaceable citizens from keeping their own arms."60 New Hampshire supported
a provision that "Con- gress shall never disarm any citizen unless such as are
or have been in Actual Rebellion."61 Though these provisions were never
adopted, they indicate that there has never been any absolute "American"
philosophy on the right to bear arms. This confusion arises from America's
situation of being a frontier nation created out of revolution and espousing a
belief in revolution but which also desires and needs to create an orderly
social and political structure.

  The result has been the use of the concept of the right to bear arms to
support several different, and often contradictory, theories of the relation
of armed citizens to the government. The judicial opinions of the courts of
the various jurisdictions in the United States best exemplify this situation.

                IV. RELEVANT COURT DECISIONS

                    A. State Courts

  The first pronouncement on the right to bear arms was by a Ken- tucky court
in Bliss v. Commonwealth.62 The court held that "the right of the citizens to
bear arms in defense of themselves and the State must be preserved entire,"
and all legislative acts "which diminish or impair it as it existed when the
Constitution was framed are void."63 Thus an act prohibiting the wearing of
concealed arms was declared void. This point of view which considers the right
to bear arms as absolute, unabridgable, and personal is rare. Most cases
follow the reasoning of a Texas court which asked "How far personal liberty
may be restrained for the prevention of crime."64

  A few states adopted the thinking of the early Tennessee case of Aymette v.
State65 which held that the right to bear arms was a right of the people to
enable them to rise up and defend their rights against an oppressive
government. This concept was similar to Blackstone's presentation of the right
to bear arms as a public allowance of the right of revolution. Courts holding
this theory consider that, as the right is by public allowance, the state can
regulate the use of arms to insure the public peace and welfare. This position
was well presented by the Arkansas court in Haile v. State:66

The constitutional provision sprung from the former tyrannical practice, on
the part of governments, of disarming the subjects, so as to render them
powerless against oppression. It is not intended to afford citizens the means
of prosecuting, more successfully, their private broils in a free government.
It would be a perversion of its object, to make it a protection to the
citizen, in going, with convenience to himself, and after his own fashion,
prepared all time to inflict death upon his fellow citizens, upon the occasion
of any real or imaginary wrongs.67

While most courts have not attempted to counter the assertion of the right of
revolution, an earlier Arkansas court had stated in State v. Buzzard68 that
such a right was unnecessary under a free, republican government which could
be changed at the will of the people.

  The Aymette line of cases is perhaps truest to the intention of the
draftsmen of the state bills of rights. The right to bear arms was a means of
preserving the liberty of the people by balancing the military power in the
hands of the state by military power in the hands of the people. The desire to
maintain such a balance has had a long history dating from feudal times,
through the English revolution to the present day. Such thinking, however, is
rare in judicial opinions. Similarly rare is the unitary concept of society
and government expressed by the Kansas court in City of Salina v. Blakesly.69

The provision . . . that 'the people have the right to bear arms for their
defense and security' refer to the people as a collective body. It was the
safety and security of society that was being considered when this provision
was put into our Constitution .... The provision in question applies only to
the right to bear arms as a member of the State Militia, or some other
military organization provided for by the law.70

Such thinking indicates belief that there is no need to provide for a military
balance within the political and social structure when that structure is
responsive to the people.

  Most state courts have never spoken of the right to bear arms in the
sophisticated terms of political balance, but rather treated the right as
synonymous with the right of self-defense. In 1950 an Illinois court warned in
the construction of an arms control statute "that it is aimed at persons of
criminal instincts, and for the prevention of crime, and not against use in
the protection of person or property."71 In Andrews v. State,72 a dissenting
judge found that "the right exists only for the purpose of defense: and this
is a right which no constitutional or legislative enactment can destroy." The
dissent in the Oklahoma case of Pierce v. State73 proclaimed--"From time
immemorial the home, be it ever so humble, has been sacred--the castle of the
occupant--with the right to repell [sic] invasion or any trespass."

  Answers to such claims vary from the flat declaration in Buzzard that
individuals have surrendered the right of self-defense to the society as a
whole, to the more moderate holding in Andrews that "every good citizen is
bound to yield his preference as the means to be used, to the demands of the
public good."74 A Michigan court put forth a novel answer saying that the
state's power is "subject to the limitation that its exercise be reasonable
[and does not result] in the prohibition of those arms which, by the common
opinion and usage of law-abiding people, are [to be kept for] protection of
person and property."75

  These debates over the issue of the right of self-defense, though of primary
interest today, have little relation to the intent of the draftsmen of the
Bill of Rights. The right of self-defense has had a long history; but its
history was parallel to, not connected with, the right to bear arms. The use
of the right of self-defense to support a right to bear arms is of modern
usage. Nevertheless, its modernity does not affect its relevance. The concept
is the supreme law in several states of the union, and is a concept to be
considered by any legislature hoping to pass restrictive arms legislation.

  The confusion in the state courts over the right to bear arms is partly due
to the judicial process itself. A court generally does not base its decision
on political theory but considers the facts of the particular case before it.
If a court feels a particular restrictive arms statute to be necessary and
fair, and if the facts of the case before it are favorable, then the court
will uphold the statute using whatever language and doctrine is required to so
hold. If the statute appears unfair, if the times are unfavorable, or if the
factual situation is difficult, then the court will use the language and
doctrine necessary to overturn the statute. For example, a Florida court
stated in 1912 that the right to bear arms "was intended to give the people
the means of protecting themselves against oppression and public outrage, and
was not designed as a shield for the individual man."76 Fifty years later the
court declared that "doubtless the guarantee was intended to secure to the
people the right to carry weapons for their protection."77 Similar situations
have occurred in several states.78 The development of federal doctrine,
however, has followed a more constant and evolutionary course.

                   B. Federal Courts

  Cases concerning the second amendment arose in the federal courts only after
the Civil War. The first of such cases, U.S. v. Cruickshank,79 implied that
there was a personal right to bear arms upon which Congress could not
infringe. The central point of the opinion, however, was to state that the
second amendment did not apply to state governments, and such governments
could pass whatever legislation they desired without fear of federal sanction.

  Cruickshank was not directly concerned with the right to bear arms or the
militia, but with civil rights legislation. The first federal case to be
directly concerned with arms was Presser v. Illinois.80 Presser was convicted
for leading a military parade in violation of an Illinois statute which
forbade such parades by any group but the state militia. Presser claimed that
the Illinois statute was in violation of the second amendment. The court
relied on Cruickshank in stating that the "amendment is a limitation only upon
the power of Congress and the National Government, and not upon that of the
States,"81 but added a restriction upon the State's power:

It is undoubtedly true that all citizens capable of bearing arms constitute
the reserved military force or reserve Militia of the United States as well as
of the States; and, in view of this prerogative of the General Government, as
well as of its general powers, the State cannot, even laying the
constitutional provision in question out of view, prohibit the people from
keeping and bearing arms, so as to deprive the United States of their rightful
resource for maintaining the public security, and disable the people from
performing their duty to the General Government.82

This principle harkens back to the citizen army of Saxon times and had little
relevance in 1886. It was understandable, however, that only twenty years
after the Civil War, the Supreme Court would be concerned with state attempts
to weaken the central government by withholding arms and troops from national
service. Nevertheless, the restriction is a complete reversal from the aims of
the draftsmen of the Constitution and Bill of Rights which was to restrict the
military power of the central government and give the state more leverage.

  On one subject Presser was quite clear--there was no right to band together
in paramilitary organizations:

Military organization and military drill and parade under arms are subjects
especially under the control of the government of every country. They cannot
be claimed as a right independent of law. Under our political system they are
subject to the regulation and control of the State and Federal Governments,
acting in due regard to their respective prerogatives and powers.83

  Thus, whatever right to bear arms was recognized, that right was limited to
arms and organizations that did not threaten the security of the government.
The court did not approve of an armed population as a balance to governmental
power.

  For many years after Presser the issue of the second amendment appeared in
federal courts only in reaffirming the Cruickshank holding that the second
amendment did not apply to the states.84 In the 1930's Congress passed two
laws, the Federal Firearms Act85 and the National Firearms Act,86 to control
commerce in certain types of dangerous weapons. Both acts were attacked in
court for being in violation of the second amendment. In upholding the
National Firearms Act, the district court held in United States v. Adams87
that the second amendment "refers to the Militia, a protective force of
government; to the collective body and not individual rights." This language
was quoted verbatim by another district court in United States v. Tot88 in
upholding the Federal Firearms Act. Neither court went into the problem of the
extent to which the collective right could be regulated, but both made clear
that no personal right to own arms existed under the federal Constitution.

  The issue of regulating the collective right arose in United States v.
Miller89 in which the Supreme Court held that as long as the weapon regulated
did not have a direct relationship to the arms used in maintaining a
well-regulated militia, they could be controlled:

In the absence of any evidence tending to show that possession or use of a
'shotgun having a barrel of less than eighteen inches in length' at this time
has some reasonable relationship to the preservation or efficiency of a
well-regulated Militia, we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument.90

The difficulty with such an interpretation is that were a weapon to have such
a "reasonable relationship" it would be a protected weapon under the second
amendment. The circuit court in Cases v. United States91 recognized this
problem saying: "But to hold that the Second Amendment limits the federal
government to regulations concerning only weapons which can be classed as
antiques or curiosities,--almost any other might bear some reasonable
relationship to the preservation or efficiency of a well-regulated militia
unit of the present day,--is in effect to hold that the limitation of the
second amendment is absolute."92 The court also recognized that such an
interpretation would prohibit the federal government from prohibiting private
ownership of heavy weapons "even though under the circumstances of such
possession or use it would be inconceivable that a private person could have
any legitimate reason for having such a weapon."93 The court then decided it
would be impossible to formulate any general test to determine the limits of
the second amendment and each case would have to be decided on its individual
merits.

  The federal courts have interpreted the right to bear arms   contained in
the second amendment very narrowly. The right exists only to the extent that
the arms are required for a well-regulated militia. Since Presser, however,
the second amendment has been interpreted as a source of federal power and not
as a protection of state power. The need for the old military balance between
state and national governments had disappeared, and the federal courts no
longer recognized its existence.

  Similarly, the federal courts no longer recognized the need for a military
balance between the population and its government. Rather, the courts have
held that the interests of order and stability must be balanced against the
need for revolution, and such interests may outweigh any need for the right of
revolution. Thus there could also be restrictions on other, subsidiary natural
rights such as the right to bear arms. As Justice Vinson said in Dennis v.
United States94 in upholding the Smith Act:

That it is within the *power* of the Congress to protect the government
of the United States from armed rebellion is a proposition which requires
little discussion. Whatever theoretical merit there may be to the argument
that there is a "right" to rebellion against dictatorial governments is
without force where the existing structure of the government provides for
peaceful and orderly change. We reject any principle of governmental
helplessness in the face of preparations for revolution, which principle,
carried to its logical conclusion, must lead to anarchy.95

  Even thought the right of revolution has never been recognized by the courts
of the United States, armed rebellion has been--and still is--an important
part of the American political tradition. From the early Republic to the
present day dissident elements who have not been able to achieve their goals
within the political structure have resorted to arms as a final resort.96 In
many instances, such elements have been punished as rebellious or treasonable,
but in others the use or threat of violence has forced the political structure
to compromise with the dissidents. Though not protected by the Constitution,
this use of arms is the most important and relevant use of arms today.

                        V. CONCLUSION

  Regardless of the long history of violence and assassination in the United
States, the right to bear arms has remained closely and jealously guarded.
This right appears to provide the individual with the means of protecting
himself against other individuals and of protecting himself against his
government. The maintenance of a military balance within the political
structure was the genesis of this right, and the desire to continue such a
balance will promote its continuation. The right to bear arms supports man in
his fear of being defenseless in the face of personal danger or oppression.

  The possibility, however, of maintaining a military balance within a
political structure has become smaller as society has become more complex and
warfare more destructive. In the words of Roscoe Pound:

  In the urban industrial society of today a general right to bear efficient
arms so as to be enabled to resist oppression by the government would mean
that gangs could exercise an extra-legal rule which could defeat the whole
Bill of Rights.97

  Thus, after over three centuries, the right to bear arms is becoming
anachronistic. As the policing of society becomes more efficient, the need for
arms for personal self-defense becomes more irrelevant; and as the society
itself becomes more complex, the military power in the hands of the government
more powerful, and the government itself more responsive, the right to bear
arms becomes more futile, meaningless and dangerous.



John Levin. "The Right to Bear Arms: The Development of the American
Experience." Chicago - Kent Law Review, Fall-Winter 1971.

Reprinted with permission.

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                                130

               Standing Armies And Armed Citizens:                   An
Historical Analysis of The                          Second Amendment

                       By ROY G. WEATHERUP*

            I. Introduction: Guns and the Constitution

  As a result of a steadily rising crime rate in recent years, a sharp public
debate over the merits of federal firearms regulation has developed. "Crime in
the streets" has become a national preoccupation; politicians cry out for "law
and order"; and the handgun has become a target of attention. The number of
robberies jumped from 138,000 in 1965 to 376,000 in 1972, while murders
committed by guns shot up from 5,015 to 10,379 in the same period, and the
proportion of cases in which the murder weapon was a firearm rose from 57.2
percent to 65.6 percent.1 The recent attempt on the life of President Ford in
Sacramento by an erstwhile member of the "Manson Gang" serves to heighten the
terror of a nation already stunned by the assassinations of John F. Kennedy,
Martin Luther King and Robert F. Kennedy, and the maiming of George Wallace.
Many people assert that these tragedies could have been prevented by keeping
the murder weapons out of the hands that used them. Others vehemently dispute
this claim.

  The free flow of firearms across state lines has undermined the traditional
view of crime and gun control as local problems. In New York City, long noted
for strict regulation of all types of weapons, only 19 percent of the 390
homicides of 1960 involved pistols, by 1972, this proportion had jumped to 49
percent of 1,691. In 1973, there were only 28,000 lawfully possessed handguns
in the nation's largest city, but police estimated that there were as many as
1.3 million illegal handguns, mostly imported from southern states with lax
laws.2 These statistics give credence to the arguments of proponents of gun
control that federal action is needed, if only to make local laws enforceable.

  The great majority of the American people now support registration of both
handguns and rifles. When the Gallup Poll asked the question: "Do you favor or
oppose registration of all firearms?" in a recent survey, more than two-thirds
(67 percent) favored the concept, while 27 percent opposed it, and 6 percent
had no opinion. Even gun-owners endorsed registration by a margin of 55
percent to 39 percent with 6 percent undecided.3 Yet, although the intensity
of belief is undoubtedly far stronger in the minority than in the majority
Congress has remained dormant.4 The zeal of those individuals dedicated to the
preservation of the "right to keep and bear arms" in its present form cannot
be doubted.

  American history has often seen social and political problems transformed
into constitutional issues.5 The gun control issue is no exception to this
phenomenon, and particular attention has been focused on the Second Amendment
to the United States Constitution, which provides: "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."

  Proponents of gun control seize the phrase "a well regulated Militia" and
find in it the sole purpose of the constitutional guarantee. They therefore
assert that "the right of the people to keep and bear Arms" is a collective
right which protects only members of the organized militia, e.g., the National
Guard, and only in the performance of their duties. It is their belief that no
one else can claim a personal right

----

3. L.A. Times, June 5, 1975,  1, at 29, col. 1.

4. Congressional lethargy cannot be attributed to a lack of proposed
legislation. At every session of the Congress, a number of bills for the
control of handguns and other weaponry are introduced, only to be shunted to
committee and never heard from again. For example, the following is only a
partial listing of proffered statutes for the First Session of the 94th
Congress: S. 750 was introduced by Senator Hart (Mich.) to prohibit the
importation, manufacture, sale, purchase, transfer, receipt, possession or
transportation of handguns unless authorized by federal or state authorities.
S. 1477, introduced by Senator Kennedy (Mass.) and known as the Federal
Handgun Control Act of 1975 is basically a registration and licensing statute.
It would prohibit the private sale or manufacture of handguns under six inches
in length. (Both bills are currently pending in the Senate Judiciary
Subcommittee on Juvenile Delinquency. )

  S. 1880, authored by Senator Bayh (Ind.) was passed by the Senate by a vote
of 68 to 25, only to die on the floor of the House of Representatives.
Entitled the Violent Crime and Repeat Offender Act of 1975, it would have
provided additional penalties for felonies committed with firearms, and
required the prompt reporting of theft of firearms by licensees.

  In addition, there is a major bill pending in the House of Representative
which is not duplicated in the Senate. H.R. 2381 would prohibit the
importation and manufacture of hollow-point bullets. This bill is now pending
in the House Ways and Means Committee as well as in the House Interstate and
Foreign Commerce Committee.

  5. See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (the question of abortion);
Schechter Corp. v. United States, 295 U.S. 495 (1935) (the New Deal's National
Recovery Administration); Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857)
(the spread of slavery controversy).

to keep and bear arms for any purpose whatsoever, criminal or otherwise.

  Opponents maintain that having guns is a constitutionally protected
individual right, similar to other guarantees of the Bill of Rights. Some hold
this right to be absolute, while others would allow reasonable restrictions,
perhaps even licensing and registration. Still others would limit the
protection of the Second Amendment to individuals capable of military service
and to weapons useful for military purposes. The essential characteristic of
the "individualist" interpretation, as opposed to the "collectivist" view, is
that the Second Amendment precludes, to some extent at least, congressional
interference in the private use of firearms for lawful purposes such as target
shooting, hunting and self-defense.

  It is one of the ironies of contemporary politics that the many of the most
vocal supporters of "law and order" are persistent critics of federal firearms
regulation. "Guns don't kill people; people kill people" is their philosophy.
Firearms in private hands are viewed as a means of protecting an individual's
life and property, as well as a factor in helping to preserve the Republic
against foreign and domestic enemies. Whereas strict constructionism is often
the preferred doctrine in interpreting the constitutional rights of criminals,
such a narrow view of the Second Amendment is unacceptable. Far from being
narrowly construed, the Second Amendment is held out to be a bulwark of human
freedom and dignity as well as a means of safeguarding the rights of the
individual against encroachment by the federal government. It thus becomes a
weapon in the arsenal of argument against gun control, and each new proposal
is said to infringe upon the rights of the people to keep and bear arms.

  The clash between "collectivist" and "individualist" interpretations of the
Second Amendment has not been definitely resolved. Even members of Congress
believe that their power to regulate firearms is limited by the existence of
an individual right to have, to hold, and to use them. Senator Hugh Scott,
Republican of Pennsylvania, writes in Guns & Ammo magazine: "As my record
shows, I have always defended the right-to-bear-arms provision of the Second
Amendment. I have a gun in my own home and I certainly intend to keep it."6

  There has been very little case law construing the Second Amendment, perhaps
because there has been very little federal legislation on the subject of
firearms. This may change, and it may become necessary for the Supreme Court
to rule upon constitutional challenges to federal statutes based on the Second
Amendment. Even before this occurs, it would be helpful to dispel the
uncertainties that exist in Congress about the extent of federal legislative
power.

  In order to determine accurately the intended meaning of the Second
Amendment, it is necessary to delve into history. It is necessary to consider
the very nature of a constitutional guarantee--whether it is an inherent,
fundamental right, derived from abstract human nature and natural law or,
alternatively, a restriction on governmental power imposed after experience
with abuse of power.

  Historically, the right to keep and bear arms has been closely intertwined
with questions of political sovereignty, the right of revolution, civil and
military power, military organization, crime and personal security. The Second
Amendment was written neither by accident nor without purpose; it was the
product of centuries of Anglo-American legal and political experience. This
development will be examined in order to determine whether the "collectivist"
or "individualist" construction of the Second Amendment is correct.7

           II. The Evolution of British Military Power

 Victorious at the Battle of Hastings in 1066, William the Conqueror was able
to assert personal ownership over all the land of England and sovereignty over
its people. All power emanated from the King, and all persons held their
property and privileges at his sufferance. Feudal society was organized along
military lines in 1181. King Henry II, great grandson of the Conqueror, issued
the Assize of Arms, which formalized the military duties of subjects. The
first three articles of the decree specify what armament each level of society
is to maintain--ranging from the holder of a knight's fee, who must equip
himself with a hauberk, a helmet, a shield and a lance, down to the poorest
freeman armed only with an iron headpiece and a lance. The philosophy of the
law is expressed in the fourth article, which is as follows:

  Moreover, let each and every one of them swear that before the feast of St.
Hilary he will possess these arms and will bear allegiance to the lord king,
Henry, namely the son of the Empress Maud, and that he will bear these arms in
his service according to his order and in allegiance to the lord king and his
realm. And let none of those who hold these arms sell them or pledge them or
offer them, or in any other way alienate them; neither let a lord

----

7. For an earlier article which discusses the "collectivist" versus the
"individualist" approach to the Second Amendment, see Feller & Gotting. The
Second Amendment: A Second Look, 61 NW. U.L. REV. 46 (1966-67). The authors
conclude "[T]he 'right of the people' refers to the collective right of the
body politic of each state to be under the protection of an independent,
effective state militia". Id. at 69. (citation omitted). But see Hays, The
Right to Bear Arms, a Study in Judicial Misinterpretation, 2 WM. & MARY L.
REV. 381 (1960). Hays contends that the right to bear arms is an individual
one.


in any way deprive his men of them either by forfeiture or gift, or as surety
or in any other manner.8

  The remainder of the statute prescribes rules and procedures governing its
administration. The Assize of Arms marked the beginning of the militia system;
its clear purpose was to strengthen and maintain the King's authority.

  In 1215, the rebellious Norman barons forced King John to sign the Magna
Carta, a document justly regarded as the foundation of Anglo-American freedom.
The Great Charter consists of sixty-three articles which set forth in great
detail certain restrictions on the King's prerogative. Its introductory
article concludes, "Ye have also granted to all the free men of Our kingdom,
for Us and Our heirs forever, all the liberties underwritten, to have and to
hold to them and their heirs of Us and Our heirs."9 Implicit in this statement
is the fact that sovereignty is deemed to be vested in the office of kingship,
and that the King is restricting his powers in favor of his subjects. Roscoe
Pound makes this comment on the Magna Carta:

  The ground plan to which the common-law polity has built ever since was
given by the Great Charter. It was not merely the first attempt to put in
legal terms what became the leading ideas of constitutional government. It put
them in the form of limitations on the exercise of authority, not of
concessions to free human action from authority. It put them as legal
propositions, so that they could and did come to be a part of the ordinary law
of the land invoked like any other legal precepts in the ordinary course of
orderly litigation. Moreover, it did not put them abstractly. In
characteristic English fashion it put them concretely in the form of a body of
specific provisions for present ills, not a body of general declarations in
universal terms. Herein, perhaps, is the secret of its enduring vitality.10

  Centuries were to pass before an English sovereign would again proclaim the
doctrine of unrestricted royal power which William the Conqueror had
established by force of arms, and which King John had lost in the same manner.

  Even though medieval England had not yet developed firearms, the government
found it necessary to severely restrict such weapons as did exist. In 1328
Parliament passed the celebrated Statute of Northhampton, which made it an
offense to ride armed at night, or by day in fairs, markets, or in the
presence of king's ministers.11

----

8. THE ASSIZE OF ARMS, [paragraph] 4 (1181), in 2 ENGLISH HISTORICAL DOCUMENTS
416 (D. Douglas & G. Greenaway ed. 1953).


  The fifteenth century dynastic struggle known as the War of Roses virtually
destroyed the feudal system, and prepared the way for a new consolidation of
royal power beginning with the coronation of Henry Tudor as King Henry VII in
1485. The Tudors maintained a large degree of national unity. Their task was
made easier by practical applications of gunpowder. The royal cannon made
resistance by the nobility futile.

  Perhaps because of the weakness of their hereditary claims, the Tudor
monarchs attempted to control and manipulate Parliament, rather than assert
the royal prerogative in defiance of Parliament. It was even admitted that
Parliament could regulate the succession to the throne, acting in conjunction
with the reigning monarch, of course. In the reign of Elizabeth, it was
declared to be high treason to deny that Parliament and the Queen could "make
laws and statutes of sufficient force and validity to limit and bind the crown
of this realm, and the descent, limitation, inheritance, and government
thereof."12

  The long war with the Hapsburg Empire that began at the time of the Spanish
Armada contributed to an upsurge of national sentiment. Faith in the English
militia was vindicated as free men had held their own against the massive,
professional standing armies of the Spanish King. Englishmen came to believe
the militia was the best security for their country and their liberties.

  At the death of Elizabeth I in 1603, King James VI of Scotland ascended the
English throne as James I. The advent of the House of Stuart marked the
beginning of a century of religious and political struggle between Crown and
Parliament. Out of this struggle, what we know as the English Constitution
emerged. The monarchy was finally and firmly restricted, but preserved, the
supremacy of Parliament was established, the common law became a strong,
independent force, and the liberties of the people were encased in a Bill of
Rights.

  Although a model constitutional monarch in some respects, in the realm of
political theory, James I challenged the sensibilities of the nation. He
boldly proclaimed the divine right theory of government--that kings hold their
thrones by the will of God alone, and not by the will of peoples or
parliaments. Typical of his sentiment are these excerpts from his speech to
Parliament on March 21, 1610:

The State of MONARCHIE is the spremest thing upon earth: For Kings are not
onely GODS Lieutenants upon earth, and sit upon GODS throne, but even by GOD
himselfe they are called Gods.... In the Scriptures Kings are called Gods, and
so their power after a certaine relation compared to the Divine Power.

The King concluded that "to dispute what GOD may doe, is blasphemie," and thus
it is "sedition in Subjects, to dispute what a King may do in the height of
his power."13 Here was a King not restricted by any human law.

  Neither the legal profession nor Parliament was willing to accept such a
boundless royal prerogative. Having grown up in the civil law tradition of
Scotland, James I was indifferent to the common law, but the English lawyers
argued that, while the King had many privileges at common law, he was limited
by and subordinate to it. When James I asserted that Parliament existed only
by "the grace and permission of our ancestors and us,"14 the House of Commons
passed the famous Protestation of December 18, 1621, which asserted:

That the Liberties, Franchises, Privileges and Jurisdictions of Parliament,
are the ancient and undoubted birthright and inheritance of the subjects of
England; and that the arduous and urgent affairs concerning the King, State
and defence of the realm, and of the Church of England, and the making and
maintenance of laws, and redress of michiefs and grievances, which daily
happen within this realm, are proper subjects and matter of counsel and debate
in Parliament: and that in the handling and proceeding of those businesses
every member of the House hath, and of right ought to have, Freedom of Speech,
to propound, treat, reason and bring to conclusion the same....15

The King's response was to walk into the House of Commons and to tear from the
Journal the page containing these words.

  The leading legal theorist of the time was Sir Edward Coke, whose writings
and leadership were to enhance the prestige of the common law, and bring it
into alliance with Parliament against the monarchy. In response to an inquiry
from James I, Coke and his colleagues declared:

That the King by his proclamation cannot create any offence which was not an
offence before, for then he may alter the law of the land by his proclamation
in a high point; for if he may create an offence where none is, upon that
ensues fine and imprisonment . . .; That the King hath no prerogative, but
that which the law of the land allows him....16

The common law courts asserted jurisdiction to inquire into the legality of
acts of servants of the Crown, and thus began the doctrine of the rule of law.

  In response to the wars waged by James I's improvident heir, Charles I,
Parliament enacted the Petition of Right in 1628, inspired and drafted largely
by Coke. The petition was an assertion of the power of Parliament and the
common law, and contained a long list of grievances. The abuses of the King's
military power--billeting, martial law, imprisonment without trial, and forced
loans--were particularly resented. Charles I had no choice but to sign the
petition, since he needed revenues from Parliament, but he secretly consulted
his judges who assured him that his signature would not be binding. Soon
afterward, in 1629, the King dissolved Parliament and began the long period of
personal rule which was to end in the Great Rebellion. Charles I was short of
money, and revived an ancient tax; his judges upheld the legality of this
action in the famous Ship Money case of 1635. The King also wished to
strengthen the Church of England, the mainstay of the monarchy. The
ecclesiastical canons of 1640 emphatically affirmed the theory of Divine Right
of Kings and, in addition, promulgated the doctrine of nonresistance:

  For subjects to bear arms against their kings, offensive or defensive, upon
any pretence whatsoever, is at least to resist the powers which are ordained
of God; and though they do not invade but only resist, St. Paul tells them
plainly they shall receive to themselves damnation.17

This doctrine of "nonresistance" was to have an important role in religion and
politics in both England and America, for the next century and a half.

  Faced with a Scottish rebellion, Charles I was forced to summon the English
Parliament in 1640 in order to obtain the resources necessary to put down the
insurrection. After eleven years of personal royal government, Parliament
trusted neither the King nor his leading minister, the Earl of Strafford.
Parliament demanded a wide array of religious and political concessions,
including the removal of Strafford as governor of Ireland and the disbanding
of the strong army he had created there. When the King acceded to these
demands, Ireland rebelled.

  Charles I was now desperate. Scotland and Ireland were in open rebellion,
and the Parliament of England was dominated by the King's enemies. The King
had made numerous concessions, but to no avail. Strafford wanted to bring John
Pym, the parliamentary leader, to trial for treasonable dealings with the
Scottish army invading England, but Pym struck first with a bill of attainder
against Strafford. The main charge was the creation of a powerful army in
Ireland for the purpose of crushing opposition in England. The bill of
attainder passed, and the King was forced to send his ablest servant to the
scaffold in 1641.


  Still unsatisfied, Parliament presented its Nineteen Propositions as an
ultimatum to the King in 1642. The Propositions, if acceded to, would have
established a very limited monarchy with the King surrendering the power of
the sword and Parliament obtaining complete control over the militia. Instead,
the King raised the royal standard at Nottingham and proclaimed Parliament to
be in rebellion. Thus began the Civil Wars, which resulted in the decapitation
of Charles I and the proclamation of a republic in 1649.

  Oliver Cromwell and the Puritans came to power by force of arms and the
creation of a disciplined standing army. Cromwell soon quarreled with
Parliament and assumed the role of a military dictator. The soldiers supported
their leader because Parliament proposed to disband much of the army thus
depriving them of their livelihood, and also because they feared that
Parliament might once again come under the control of the Anglicans, who would
revive persecution of the Puritan sects.

  It was soon proposed that Cromwell be made king, but only because that
office would have definite constitutional restrictions. Finally Cromwell
assumed the title of Lord Protector in 1653, under a written constitution that
gave him virtually royal power. Although Cromwell's government brought
domestic peace and ruled efficiently, it did not gain in popularity. The Lord
Protector's government was created and maintained by bayonets, and the people
came to hate it. The end of the Protectorate and its legacy have been
described by historian Eric Sheppard as follows:

  The great soldier's death in 1658, while the army he had made was still
fighting victoriously in Flanders, marked the beginning of the end of that
army's rule; its leaders soon had no choice but to accept the inevitable, and
in May 1660 the red coats of the New Model were arrayed on Blackheath to do
honor to the monarch whom nine years before it had hunted into exile. A few
months later, setting an example which has since been followed by all the
great armies of England, it . . . laid down its arms and passed silently and
peacefully into the pursuits of peace, leaving behind it, in the minds of the
governing class and the people, besides a deservedly high military reputation,
a legacy of hatred and distrust of all standing armies which has endured to
our own day.18

  The mood of England at the restoration of Charles II, son of the martyred
Charles I, was one of relief and enthusiasm. An act was swiftly passed which
recited that "the people of this kingdom lie under a great burden and charge
in the maintenance and payment of the present army," and provided that it
should be disbanded with "all convenient speed."19


  Once again reliance for the country's security was placed in the militia
system, which had fallen into disuse after two decades of professional armies,
civil wars and military government. Statutes were passed in 1661 and 1662
declaring that the King had the sole right of command and disposition of the
militia, and providing for its organization.20 Winston Churchill makes this
comment on the Cavalier Parliament, which had restored the monarchy:

  It rendered all honour to the King. It had no intention of being governed by
him. The many landed gentry who had been impoverished in the royal cause were
not blind monarchists. They did not mean to part with any of the Parliamentary
rights which had been gained in the struggle. They were ready to make
provision for the defence of the country by means of militia; but the militia
must be controlled by the Lord-Lieutenants of the counties. They vehemently
asserted the supremacy of the Crown over the armed forces; but they took care
that the only troops in the country should be under the local control of their
own class. Thus not only the King but Parliament was without an army. The
repository of force had now become the county families and gentry.21

  The revival of the militia did not mean that the King was forbidden to raise
and maintain armies. He had no means of doing so, however, because Parliament
held the purse strings, and the quartering of soldiers had been condemned
since the days of the Petition of Right.

  Foreign wars made the development of a standing army inevitable, and it
reached 16,000 men by the end of the reign of Charles II. It was done with the
consent of Parliament, and English country gentlemen were secure in their
control of the domestic armed power--the militia. In addition, guns were taken
out of the hands of the common people. Among the conditions of a 1670 statute
was one that no person, other than heirs of the nobility, could have a gun
unless he owned land with a yearly value of L100.22 The protection of the
people's liberties was thus committed entirely to Parliament and other legal
institutions. The possibility of a citizen army, such as that created by
Oliver Cromwell, was precluded.

  In the reign of Charles II, religious controversy dominated politics. The
Cavalier Parliament wished to maintain the established Anglican Church and
persecute dissenters, Catholic and Puritan alike. Parliament was also alarmed
by the prospect that the King's Catholic brother, the Duke of York, would
succeed to the throne. A parliamentary attempt to exclude the Duke failed, but
in 1673 and 1678, two Test Acts were passed, which barred Catholics from all
civil and military offices and from both Houses of Parliament.23

  In 1685, the Catholic Duke of York ascended to the throne of James II. The
new King quieted the fears of his subjects by proclaiming his intention to
maintain church and state as they were by law established. The people were
also comforted by the fact that the heirs to the throne were his Protestant
daughters, Mary and Anne, and his Protestant nephew, William of Orange,
stadtholder of the Dutch Republic and Mary's husband. Because of the Test
Acts, James II inherited an entirely Protestant government.

  At the same time a rebellion, led by the Duke of Monmouth, broke out in the
western counties. The King successfully crushed the uprising, but in the
process succeeded in doubling his standing army to 30,000 men, granting
commissions to catholic officers, and bringing in recruits from Catholic
Ireland. In addition he quartered his new army in private homes. These
arbitrary actions were in direct violation of previous parliamentary
proclamations.

  James II then asked Parliament to repeal the Test Acts and the Habeas Corpus
Act, which Parliament refused to do. The King also asked the representatives
of the nation to abandon their reliance on the militia, in favor of standing
armies:

My Lords and Gentlemen,    After the storm that seemed to be coming upon us
when we parted last, I am glad to meet you all again in so great Peace and
Quietness. God Almighty be praised, by those Blessing that Rebellion was
suppressed: But when we reflect, what an inconsiderable Number of Men began
it, and how long they carried [it] on without any Opposition, I hope
every-body will be convinced, that the Militia, which hath hitherto been so
much depended on, is not sufficient for such Occasions; and that there is
nothing but a good Force of well disciplined Troops in constant Pay, that can
defend us from such, as, either at Home or Abroad, are disposed to disturb us
.24

  John Dryden, the poet, shared the King's attitude toward the militia when he
wrote these timeless words:

The country rings around with loud alarms, And raw in fields the rude militia
swarms; Mouths without hands; maintained at vast expense, In peace a charge,
in war a weak defence; Stout once a month they march, a blustering band, And
ever, but in times of need, at hand.

----

23. Test Act. 25 Car. 2, c. 2. (1673); Parliamentary Test Act, 30 Car. 2,
Stat. 2, c. 1 (1678) (an exemption allowed the Duke of York to retain his seat
in the House of Lords).


972    HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 2

This was the morn when, issuing on the guard, Drawn up in rank and file they
stood prepared Of seeming arms to make a short essay, Then hasten to be drunk,
the business of the day.25

  Parliament adjourned in 1686 without resolving any of the basic issues. The
King kept his army and pursued his policies through extra-parliamentary means.

  To get rid of the Test Act, and to revive the royal prerogative at the same
time, the King arranged a collusive lawsuit. A coachman in the service of a
Roman Catholic officer brought suit under the Test Act to recover the
statutory reward for discovering violators, and the officer pleaded a royal
dispensation in defense. The King's judges in Godden v. Hales26 upheld the
validity of the dispensation and gave judgment for the defendant. Lord Chief
Justice Herbert stated:

  We are satisfied in our judgments before, and having the concurrence of
eleven out of twelve, we think we may very well declare an opinion of the
court to be, that the King may dispense in this case: and the judges go upon
these grounds;   1. That the kings of England are sovereign princes.   2. That
the laws of England are the king's laws.   3. That therefore 'tis an
inseparable prerogative in the kings of England, to dispense with penal laws
in particular cases and upon particular necessary reasons.   4. That of those
reasons and those necessities the king himself is sole judge: And then, which
is consequent upon all,   5. That this is not a trust invested in or granted
to the king by the people, but the ancient remains of the sovereign power and
prerogative of the kings of England; which never yet has taken from them, nor
can be.27

  Thus armed with the law, the King proceeded to dispense with statutes as he
saw fit. He replaced Protestants and Catholics at high posts in government,
particularly at important military garrisons. The army was further enlarged
and 13,000 men were stationed at Hounslow Heath, just outside London, in order
to hold the city in subjection if necessary. How far James II planned to carry
his religious and political program is unknown, but his powerful standing army
made many Protestants fearful and uneasy about the future.

  With the birth of a son, who would take precedence over the King's
Protestant daughters in the succession, fear led to revolution.

Leading subjects sent a secret invitation to William of Orange to come to
England in defense of the liberties of the people and his wife's right to the
Crown. When William landed with a large Dutch army, the English army and
government deserted James II who fled to France. Thus the Glorious Revolution
of 1688 was accomplished. James II had believed that his enemies were
paralyzed by the Anglican doctrine of nonresistance, but he had so alienated
his subjects that he was deposed without being able to put up any resistance
himself.

William and Mary were offered the Crown jointly after they accepted the
Declaration of Rights on February 13, 1689. The Declaration was later enacted
in the form of a statute, known as the Bill of Rights.28 The document is
divided into two main parts: 1) a list of allegedly illegal actions of James
II, and 2) a declaration of the "ancient rights and liberties" of the realm.

  The sections of the first part of the statute that are relevant to the right
to bear arms are the allegations that James II

did endeavor to subvert and extirpate the Protestant Religion and the Laws and
Liberties of this Kingdom . . .   5. By raising and keeping a Standing army
within this Kingdom in Time of Peace without Consent of Parliament and
quartering Soldiers contrary to Law.   6. By causing several good Subjects,
being Protestants, to be disarmed at the same Time when Papists were both
armed and employed contrary to Law.29

It should be pointed out that the King did not disarm Protestants in any
literal sense; the reference is to his desire to abandon the militia in favor
of a standing army and his replacement of Protestants by Catholics at
important military posts.

  The parallel sections of the declaration of rights part of the statute are:

  5. That the raising or keeping a Standing Army within the Kingdom in Time of
Peace unless it be with the Consent of Parliament is against Law.   6. That
the Subjects which are Protestants may have Arms for their Defence suitable to
their Conditions, and as allowed by Law.30

The purpose, and meaning of, the right to have arms recognized by these
provisions is clear from their historical context. Protestant members of the
militia might keep and bear arms in accordance with their militia duties for
the defense of the realm. The right was recognized as a restriction on any
future monarch who might wish to emulate James II and abandon the militia
system in favor of a standing army without the consent of Parliament. There
was obviously no recognition of any personal right to bear arms on the part of
subjects generally, since existing law forbade ownership of firearms by anyone
except heirs of the nobility and prosperous landowners.

  In summary, the English Bill of Rights represents the culmination of the
centuries old problem of the relationship of sovereignty and armed force. The
king could have an army, but only with the express consent of Parliament. The
king could not, however, dismantle and disarm the militia. There was no
individual right to bear arms; the rights of subjects could be protected only
by the political process and the fundamental laws of the land.

                  III. England and Her Colonies

  The revolutionary settlement that followed the accession of William and Mary
gave the English people permanent security. England, however, had become the
center of an Empire, and the relationship between England and the outlying
territories raised legal and political problems.

  When William and Mary, and, later, Queen Anne, all died without heirs, the
Crown passed to the distantly-related House of Hanover in Germany. Uprisings
led by the son and grandson of James II were suppressed in 1715 and in 1745,
and Parliament felt it necessary to deprive the people entirely of the right
to bear arms in large parts of Scotland.31

  The history of the English colonies in America was closely intertwined with
that of the Mother Country. The New England colonies had been settled by
Puritan refugees from the early Stuart kings. When Cromwell and the Puritans
came to power in England, thousands of royalists fled to the southern
colonies, swelling their populations.

  The foundation of government in the colonies was the charter granted by the
king. An important feature of a charter was the provision securing for the
inhabitants of the colony the rights of Englishmen. For example, the 1606
Charter of Virginia contains this passage:

  Also we do . . . DECLARE . . . that all and every the Persons being our
Subjects, which shall dwell and inhabit within every or any of the said
several Colonies and Plantations, and every of their children, which shall
happen to be born within any of the Limits and Precincts of the said several
Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and
Immunities, within any of our other Dominions, to all Intents and Purposes, as
if they had been abiding and born, within this our Realm of England, or any
other of our said Dominions.32

  During the seventeenth century and the first half of the eighteenth century,
the North American colonies were essentially self-governing republics
following the political and legal model of England. In 1720, Richard West,
counsel to the Board of Trade, gave this description of the state of law in
the colonies:

  The Common Law of England is the Common Law of the Plantations, and all
statutes in affirmance of the Common Law, passed in England antecedent to the
settlement of a colony, are in force in that colony, unless there is some
private Act to the contrary; though no statutes, made since those settlements,
are there in force unless the colonies are particularly mentioned. Let an
Englishman go where he will, he carries as much of law and liberty with him,
as the nature of things will bear.33

  The legal relationship of Britain and the colonies became more than an
academic problem after the end of the Seven Years' War in 1763. That war,
known in America as the French and Indian War, brought large British armies to
colonies which had hitherto known no armed force but the colonial militia. The
cost of the war was enormous, and the British government decided that the
colonies should share it.

  In his efforts to tax and govern the colonies, George III acted in two
capacities: as King, armed with the prerogatives of his office, and as the
agent of the British Parliament which at that time was under his personal
control. The colonists acknowledged the authority of the King, but only in
accordance with their charters and with the same restrictions that limited his
power in Britain. Many of the colonists denied the authority of the British
Parliament to regulate their internal affairs in any way.

  Colonial resistance forced the British government to abandon the Stamp Tax,
but Parliament passed the Declaratory Act in 1766 entitled "An Act for the
better securing the Dependency of his majesty's dominions in America upon the
Crown and parliament of Great Britain."

Whereas several of the Houses of Representatives in his Majesty's Colonies and
Plantations in America, have of late, against Law, claimed to themselves or to
the General Assemblies of the same, the sole and exclusive Right of imposing
Duties and Taxes upon his Majesty's Subjects in the said Colonies and
Plantations; and have, in pursuance of such Claim, passed certain Votes,
Resolutions and Orders, derogatory to the Legislative Authority of Parliament,
and inconsistent with the Dependency of the said Colonies and Plantations upon
the Crown of Great Britain be it declared . . . That the said Colonies and
Plantations in America have been, are, and of Right ought to be, subordinate
unto, and dependent upon, the Imperial Crown and Parliament of Great Britain;
and that the King's Majesty, by and with the Advice and Consent of the Lords
Spiritual and Temporal, and Commons of Great Britain in Parliament assembled,
had, hath, and of Right ought to have, full Power and Authority to make Laws
and Statutes of sufficient Force and Validity to bind the Colonies and People
of America, Subjects of the Crown of Great Britain, in all Cases whatsoever.34

The colonists were free-born Englishmen and they were not willing to accept
inferior status. They could not admit the authority of Crown and Parliament to
bind them "in all cases whatsoever." They fell back on the doctrine of
fundamental law as expressed in 1764 by James Otis:

'Tis hoped it will not be considered as a new doctrine, that even the
authority of the Parliament of Great-Britain is circumscribed by certain
bounds, which if exceeded their acts become those of meer power without right,
and consequently void. The judges of England have declared in favour of these
sentiments, when they expressly declare; that acts of Parliament against
natural equity are void. That acts against the fundamental principles of the
British constitution are void. This doctrine is agreeable to the law of nature
and nations, and to the divine dictates of natural and revealed religion.35

The concept of fundamental law was developed and grounded squarely on the
English legal tradition. In 1772, Samuel Adams wrote in response to another
writer in the Gazette:

Chromus talks of Magna Charta as though it were of no greater consequence that
an act of Parliament for the establishment of a corporation of button-makers.
Whatever low ideas he may entertain of the Great Charter . . . it is affirm'd
by Lord Coke, to be declaratory of the principal grounds of the fundamental
laws and liberties of England. "It is called Charta Libertatum Regni, the
Charter of the Liberties of the kingdom, upon great reason . . . because
liberos facit, it makes and preserves the people free." . . . But if it be
declaratory of the principal grounds of the fundamental laws and liberties of
England, it cannot be altered in any of its essential parts, without altering
the constitution.... Vatel tells us plainly and without hesitation, that "the
supreme legislative cannot change the constitution." . . . If then according
to Lord Coke, Magna Charta is declatory of the principal grounds of the
fundamental laws and liberties of the people, and Vatel is right in his
opinion, that the supreme legislative cannot change the constitution, I think
it follows, whether Lord Coke has expressly asserted it or not, that an act of
parliament made against Magna Charta in violation of its essential parts, is
void.36

This statement of fundamental law later influenced the intellectual foundation
of judicial review in the United States.

  In order to sustain his claim of full and unrestricted sovereignty, George
III sent large standing armies to the colonies. America was outraged. The
colonists drew their arguments from Whig political theorists on both sides of
the Atlantic who maintained that standing armies in time of peace were tools
of oppression, and that the security of a free people was best preserved by a
militia.

  The American colonists, who had always relied on their own militia, hated
and feared standing armies even more than their English brethren. In
quartering his redcoats in private homes, suspending charters and laws, and
eventually imposing martial law, George III was doing in America what he could
not do in England. The royal prerogative had virtually ended in England with
the Revolution of 1688, but the King was reviving it in America.

  The Fairfax County Resolutions, drawn up under the leadership of George
Washington and passed on July 18, 1774, reflect the colonial attitude in the
year prior to the outbreak of war. Of particular interest is the following
paragraph:

  Resolved, That it is our greatest wish and inclination, as well as interest,
to continue our connection with, and dependence upon, the British Government;
but though we are its subjects, we will use every means which Heaven hath
given us to prevent our becoming its slaves.37

  In October of the same year, the First Continental Congress   assembled and
stated the position of the colonies in these resolutions:

   Resolved, . . . 1. That they are entitled to life, liberty, & property, and
they have never ceded to any sovereign power whatever, a right to dispose of
either without their consent.    Resolved, . . . 2. That our ancestors, who
first settled these colonies, were at the time of their emigration from the
mother country, entitled to all the rights, liberties, and immunities of free
and natural-born subjects, within the realm of England.

----

36. S. ADAMS, Candidus Letters (1772), in 2 THE WRITINGS OF SAMUEL ADAMS
324-26 (H. Cushing ed. 1906).

37. Fairfax Co. Resolutions, (1774) in A. E. D. Howard, THE ROAD FROM
RUNNYMEDE: MAGNA CARTA AND CONSTITUTIONALISM IN AMERICA 435 (1968).

978    HASTINGS CONSTITUTIONAL LAW QUARTERLY [VOL. 2

   Resolved, . . .3. That by such emigration they by no means forfeited,
surrendered, or lost any of those rights, but that they were, and their
decendants now are, entitled to the exercise and enjoyment of all such of
them, as their local and other circumstances enable them to exercise and
enjoy.   Resolved, . . . 4. That the foundation of English liberty, and of all
free government, is a right in the people to participate in their legislative
council: and as the English colonists are not represented, and from their
local and other circumstances, cannot properly be represented in the British
parliament, they are entitled to a free and exclusive power of legislation in
their several provincial legislatures, where their right of representation can
alone be preserved, in all cases of taxation and internal polity, subject only
to the negative of their sovereign, in such manner as has been heretofore used
and accustomed...38

After stating these general principles, the Congress listed specific rights
that had been violated by George III, including the following:

  Resolved, . . . 9. That the keeping a Standing army in these colonies, in
times of peace, without the consent of the legislature of that colony, in
which such army is kept, is against law.39

  The colonists were asserting, in effect, that the restrictions on royal
power that had been won by Parliament in its long struggle against the Stuart
kings were binding against the sovereign, in favor of the colonial
legislatures as well as Parliament. In order to make that claim good, the
colonists were forced to take up arms.

               IV. Popular Sovereignty and the New Nation

  America's long war in defense of the rights of Englishmen began in 1775.
Although many colonists still hoped for a reconciliation with the mother
country, it was necessary to set up state governments in the interim. In
Connecticut and Rhode Island, all that was necessary was to strike the King's
name from the colonial charters, which continued to serve for many years as
state constitutions.

  In other states, written constitutions were drawn up. They generally had
these features: 1) an assertion that political power derives from the people;
2) provision for the organization of the government with a three-fold
separation of powers; 3) a powerful legislature with authority to pass all
laws not forbidden by the Constitution; and 4) a specific bill of rights
restricting governmental power in the same way that the English Bill of Rights
restricted the King. It is important to emphasize that the concept of
enumerated powers had not yet been

----

38. 1 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, 67-68 (Oct. 14, 1774)
(W. C. Ford ed. 1904-1907).

39. Id. at 70.

Fall 1975]          STANDING ARMIES              979

developed, and that rights were, as always before, conceived to be in the
nature of restrictions on power, not as individual freedoms.40

  The Declaration of Independence substituted the sovereignty of the people
for that of the King, and appealed to the "Laws of Nature and of Nature's
God," but it did not proclaim a social or legal revolution. It listed the
colonists' grievances, including the presence of standing armies,
subordination of civil to military power, use of foreign mercenary soldiers,
quartering of troops, and the use of the royal prerogative to suspend laws and
charters. All of these legal actions resulted from reliance on standing armies
in place of the militia.

  Although America repudiated the British King, it did not repudiate British
law. The Constitution of Maryland, for example, declared:

  That the inhabitants of Maryland are entitled to the common law of England,
and the trial by jury according to the course of that law, and to the benefit
of such of the English statutes as existed on the fourth day of July,
seventeen hundred and seventy six, and which, by experience, have been found
applicable to their local and other circumstances, and have been introduced,
used and practiced by the courts of law or equity, . . .41

  The War for Independence was fought by fourteen different military
organization--the Continental Army under Washington, and the thirteen colonial
militias. The debate over the relative merits of standing armies and the
militia continued even during the fighting. A defender of standing armies,
Washington wrote to the Continental Congress in September of 1776 as follows:

  To place any dependence upon Militia, is, assuredly, resting upon a broken
staff. Men just dragged from the tender Scenes of domestick life; unaccustomed
to the din of Arms; totally unac-

----

40. For example, the Virginia Bill of Rights, adopted June 12, 1776, declared:
"That a well-regulated militia, composed of the body of the people, trained to
arms, is the proper, natural, and safe defence of a free State; that standing
armies, in time of peace, should be avoided, as dangerous to liberty; and that
in all cases the military should be under strict subordination to, and
governed by the civil power." VA. CONST., Bill of Rights,  13 (1776) in 7
CONSTITUTIONS 3814.

  The comparable provision in Massachusetts was as follows: "The people have a
right to keep and to bear arms for the common defence. And as, in time of
peace, armies are dangerous to liberty, they ought not to be maintained
without the consent of the legislature; and the military power shall always be
held in an exact subordination to the civil authority, and be governed by it."
MASS. CONST., Declaration of Rights, art. 17 (1780) in 3 CONSTITUTIONS 1892.
(Considered in its context, the meaning of the "right to keep and bear arms"
is clear. The words "for the common defence" makes it obvious that a
collective right is intended. The people of Massachusetts did not want to risk
a second British occupation.)

41. MD. CONST., Declaration of Rights, art. 3 (1851), in 3 CONSTITUTIONS 1713.


980    HASTINGS CONSTITUTIONAL LAW QUARTERLY [VOL. 2

quainted with every kind of military skill, which being followed by a want of
confidence in themselves, when opposed to Troops regularly train'd,
disciplined, and appointed, superior in knowledge and superior in Arms, makes
them timid, and ready to fly from their own shadows....   The Jealousies of a
standing Army, and the Evils to be apprehended from one, are remote; and, in
my judgment, situated and circumstanced as we are, not at all to be dreaded;
but the consequence of wanting one, according to my Ideas, formed from the
present view of things, is certain, and inevitable Ruin; for if I was called
upon to declare upon Oath, whether the Militia have been most serviceable or
hurtful upon the whole; I should subscribe to the latter.42

  To maintain the supremacy of civil power over that of the military Article
II of the Articles of Confederation provided that each state would retain "its
sovereignty, freedom, and independence."43 A provision that "every state shall
always keep up a well regulated and disciplined militia, sufficiently armed
and accoutred" was included in Article VI.44 In contrast, the military powers
of the United States rested in Congress were strictly limited; Congress could
not maintain standing armies without the consent of nine of the thirteen
states.

The government of the United States under the Articles of Confederation was
weak. Experience was to show that it needed to be strengthened in its military
powers.

                    V. Forging a More Perfect Union

  When the War for Independence ended, the government of the Confederation was
faced with one gigantic, insoluble problem--money. As troublesome as foreign
and domestic bondholders were, there was one stronger pressure group that
simply could not be ignored: the former soldiers who had been promised back
pay and large pensions. Organized under the name of the Society of Cincinnati,
these veterans were viewed with suspicion by many Americans, who nurtured
fears of standing armies.

  The danger to civil authority from the military was not entirely imaginary.
In the summer of 1783 there was a direct attempt to coerce the Confederation
into paying what had been promised to the army. Originally intended as a
peaceful protest march on the capitol in Philadelphia, the ex-soldiers were
soon "mediating more violent measures,"

----

42. Letter from George Washington to the President of Congress, Sept. 24,
1776, in 6 THE WRITINGS OF GEORGE WASHINGTON 110, 112 (J . Fitzpatrick ed.
1931-1944)

43. See generally M. JENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES
DURING THE CONFEDERATION, 1781-1789 (1950).

Fall 1975]          STANDING ARMIES              981

including "seizure of the members of Congress."44 Alarmed, Congress adjourned
and fled to Trenton, New Jersey. The soldiers eventually gave up, and the
officers who led them escaped.

  Following the abortive demonstrations in Philadelphia in the summer of 1783,
Madison and other leaders felt the need to reorder the nation's military
structure. The other important military event that precipitated demands for a
stronger national government was Shays' Rebellion in Massachusetts in 1786.
Oppressed by debt, farmers in the western part of the state seized military
posts and supplies and defied the state government. Although the insurrection
was suppressed fairly easily and Shays himself pardoned, exaggerated reports
of the uprising circulated among the states, and conservatives were aghast.
Madison, in writing the introduction to his notes on the Federal Convention,
lists Shays' Rebellion as one of the "ripening incidents" that led to the
Convention.45

  Thomas Jefferson, in contrast, was not alarmed by the apparent dangers of
anarchy, and he criticized the clamor of the Federalists. Just after receiving
a copy of the proposed Constitution, he wrote from Paris: . . . We have had 13
states independent 11 years. There has been one rebellion. That comes to one
rebellion in a century & a half for each state. What country before ever
existed a century & a half without rebellion? & what country can preserve its
liberties if their rulers are not warned from time to time that their people
preserve the spirit of resistance? Let them take arms. The remedy is set them
right as to facts, pardon & pacify them. What signify a few lives lost in a
century or two? The tree of liberty must be refreshed from time to time with
the blood of patriots & tyrants. It is natural manure. Our Convention has been
too much impressed by the insurrection of Massachusetts: and in the spur of
the moment they are setting up a kite to keep the hen yard in order.46

  Whatever the merits of Jefferson's beliefs, they were not shared by the
majority of the Convention, which wished to prevent insurrections by
strengthening the military powers of the general government.

----

44. Debates of the Congress of the Confederation (June 2, 1783), in 5 THE
DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION 93 (J. Elliot ed. 1836-1845) [hereinafter cited as STATE
DEBATES].

45. DRAFTING THE FEDERAL CONSTITUTION: A REARRANGEMENT OF MADISON'S NOTES
GIVING CONSECUTIVE DEVELOPMENT OF PROVISIONS IN THE CONSTITUTION OF THE UNITED
STATES  10 (A. Prescott ed. 1941) [hereinafter cited as MADISON REARRANGED].

46. Letter from Thomas Jefferson to William Stephen Smith, Nov. 13, 1787, in 4
THE WORKS OF THOMAS JEFFERSON 362 (P. Ford ed. 1892-1899).


982     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [Vol. 2

The new military powers of Congress were listed in Article I, Section 8 of the
proposed constitution, and include the following authority:

  To raise and support Armies, but no Appropriation of Money to that Use shall
be for a longer Term than two Years;   To provide and maintain a Navy;   To
make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions;   To provide for organizing,
arming, and disciplining, the Militia, and for governing such Part of them as
may be employed in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress;

The spirited debate over these provisions in the Federal Convention reflects
the purposes and fears of the framers of the Constitution.

  There was universal distrust of standing armies. For example, in June of
1787, Madison stated:

. . . A standing military force, with an overgrown Executive will not long be
safe companions to liberty. The means of defence agst. foreign danger, have
been always the instruments of tyranny at home. Among the Romans it was a
standing maxim to excite a war, whenever a revolt was apprehended. Throughout
all Europe, the armies kept up under the pretext of defending, have enslaved
the people. It is perhaps questionable, whether the best concerted system of
absolute power in Europe cd. maintain itself, in a situation, where no alarms
of external danger c. tame the people to the domestic yoke. The insular
situation of G. Britain was the principal cause of her being an exception to
the general fate of Europe. It has rendered less defence necessary, and
admitted a kind of defence wch. c. not be used for the purpose of
oppression.47

The defense "which could not be used for the purpose of oppression" was the
militia, which was still revered on both sides of the Atlantic, even with its
shortcomings.

  Yet, despite the preference for the militia, it was generally agreed that
Congress must have authority to raise and support standing armies in order to
protect frontier settlements, the national government, and the nation when
threatened by foreign powers. However, a few members were still fearful.
Elbridge Gerry and Luther Martin, both of whom later opposed the Constitution,
moved that a definite limit--two or three thousand men--be placed on the size
of the national standing army. Voting by states, as always, the Convention
unanimously rejected the motion. The judgment of Congress and the two year
appropriation limitation were thought to be sufficient safeguards.48

  The proper extent of federal authority over the militia was much more
heatedly debated. The subject was introduced by George Mason, author of the
Virginia Bill of Rights, who later opposed the Constitution, but who now
maintained that uniformity of organization, training and weaponry was
essential to make the state militias effective. His hope was that the need for
a standing army would be minimized; perhaps only a few garrisons would be
required. Mason's opinions were shared by Madison, who gave this analysis:

  The primary object is to secure an effectual discipline of the Militia. This
will no more be done if left to the states separately than the requisitions
have been hitherto paid by them. The states neglect their militia now, and the
more they are consolidated into one nation, the less each will rely on its own
interior provisions for its safety, and the less prepare its militia for that
purpose; in like manner as the militia of a state would have been still more
neglected than it has been, if each county had been independently charged with
the care of its militia. The discipline of the militia is evidently a national
concern, and ought to be provided for in the national Constitution.49

  Despite such explanations, there were still opponents to the militia
clauses. Gerry, for example, declared:

  This power in the United States, as explained, is making the states drill
sergeants. He had as lief-let the citizens of Massachusetts be disarmed as to
take the command from the states and subject them to the general legislature.
It would be regarded as a system of despotism.50

Later, as the Convention moved toward resolution of the issue, Gerry
marshalled his final arguments. One can sense his feeling of outrage, as he
solemnly warned of the dangers of centralized military power: "Let us at once
destroy the state governments, have an executive for life or hereditary, and a
proper Senate; and then there would be some consistency in giving full powers
to the general government...."51 But as the states are not to be abolished, he
wondered at the attempts that were made to give powers inconsistent with their
existence. He warned the Convention against pushing the experiment too far.
Some people will support a plan of vigorous government at every risk. Others,
of a more democratic cast, will oppose it with equal determination; and a
civil war may be produced by the conflict.

48. MADISON REARRANGED 513-26.

49. Id. at 522.

50. Id. at 521.

51. Id. at 523-24.

984    HASTINGS CONSTITUTIONAL LAW QUARTERLY [VOL. 2

  Madison rose immediately and answered Gerry in these words:

As the greatest danger is that of disunion of the states, it is necessary to
guard against it by sufficient powers to the common government; and as the
greatest danger to liberty is from large standing armies, it is best to
prevent them by an effectual provision for a good militia.52

  The last discussion of the militia clauses took place on September 14, 1787,
just before the Convention finished its work. Mason moved to add a preface to
the clause that allowed federal regulation of the militia, in order to define
its purpose. His proposed addition was "that the liberties of the people may
be better secured against the danger of standing armies in time of peace." The
motion was opposed as "setting a dishonourable mark of distinction on the
military class of citizens," and was rejected.53

  Thus ended the Convention's debate over the relative merits and difficulties
of standing armies and the militia. The debate was soon to be revived,
however, as the new nation prepared to consider the proposed new form of
government.

  VI. The Ratification Controversy and the Bill of Rights

  The new Constitution was signed on September 17, 1787 and the contest over
its ratification soon began. The controversy was carried on mainly through the
printed media. It was an unequal contest because the proponents of the new
government, who now called themselves Federalists, controlled most of the
newspapers. The Antifederalists resorted mainly to pamphlets and handbills.

  Because the Antifederalist effort was decentralized and local in nature, it
is difficult to generalize about the arguments used against the Constitution.
The unifying theme, to the extent there was one, was that the new government
would overreach its powers, destroy the states, deprive the people of their
liberty, and create an aristocratic or monarchical tyranny. In finding
evidence of such dangers, the Anti-federalists often made inconsistent
interpretations of what the Constitution provided. In the case of the militia
powers, for example, it was said that Congress would disarm the militia in
order to remove opposition to its standing army; at the same time it was
argued that Congress would ruthlessly discipline the militia and convert it
into a tool of oppression.

----

52. Id. at 524.

53. Id. at 525.

 Fall 1975]          STANDING ARMIES              985

Bearing in mind the inconsistency of the Anti-federalist position, some of the
pamphlets and articles will be examined in order to show how the fears of
military power existed. One of the most scurrilous critics of the Constitution
was "Philadelphiensis." His identity is uncertain, but he is believed to have
been Benjamin Workman, a radical Irishman and a tutor at the University of
Pennsylvania. His comments include the following:

  Who can deny but the president general wi]l be a king to all intents and
purposes, and one of the most dangerous kinds too; a king elected to command a
standing army? Thus our laws are to be administered by this tyrant; for the
whole, or at least the most important part of the executive department is put
in his hands.   The thoughts of a military officer possessing such powers, as
the proposed constitution vests in the president general, are sufficient to
excite in the mind of a freeman the most alarming apprehensions; and ought to
rouse him to oppose it at all events. Every freeman of America ought to hold
up this idea to himself, that he has no superior but God and the laws. But
this tyrant will be so much his superior, that he can at any time he thinks
proper, order him out in the militia to exercise, and to march when and where
he pleases. His officers can wantonly inflict the most disgraceful punishment
on a peaceable citizen, under pretense of disobedience, or the smallest
neglect of militia duty.54

  Another anonymous writer, Brutus, appealed to history as proof that standing
armies in peacetime lead to tyranny:

  The same army, that in Britain, vindicated the liberties of that people from
the encroachments and despotism of a tyrant king, assisted Cromwell, their
General, in wresting from the people that liberty they had so dearly
earned....   I firmly believe, no country in the world had ever a more
patriotic army, than the one which so ably served this country in the late
war. But had the General who commanded them been possessed of the spirit of a
Julius Caesar or a Cromwell, the liberties of this country . . . [might have]
in all probability terminated with the war.55

  Still another unknown, styling himself "A Democratic Federalist," asserted
that the Revolution had proved the superiority of the militia over standing
armies:

  Had we a standing army when the British invaded our peaceful shores? Was it
a standing army that gained the battles of Lexington and Bunker Hill, and took
the ill-fated Burgoyne? Is not a well-regulated militia sufficient for every
purpose of internal defense? And which of you, my fellow citizens, is afraid
of any

----

54. 'Philadelphiensis' Letter, Independent Gazetteer (Phila.), Feb. 7,1788.

55. 'Brutus' Letter, N.Y. Journal, Jan. 24, 1788.

986     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [VOL. 2

invasion from foreign powers that our brave militia would not be able
immediately to repel?56

  Some writers, such as "Centinel," feared that national control over the
militia would transform that bulwark of democracy into a tool of oppression:

  This section will subject the citizens of these states to the most arbitrary
military discipline: even death may be inflicted on the disobedient; in the
character of militia, you may be dragged from your families and homes to any
part of the continent and for any length of time, at the discretion of the
future Congress; and as militia you may be made the unwilling instruments of
oppression, under the direction of government; there is no exemption upon
account of conscientious scruples of bearing arms, no equivalent to be
received in lieu of personal services. The militia of Pennsylvania may be
marched to Georgia or New Hampshire, however incompatible with their interests
or consciences; in short, they may be made as mere machines as Prussian
soldiers.57

  Other Antifederalist propagandists believed that the true motive for
assertion of national control over the militia was not to use it, but to
destroy it, and thus eliminate any opposition to the new standing army. The
Bostonian who used the pseudonym "John De Witt" asked these questions about
the militia clauses:

  Let us inquire why they have assumed this great power. Was it to strengthen
the power which is now lodged in your hands, and relying upon you and you
solely for aid and support to the civil power in the execution of all the laws
of the new Congress? Is this probable? Does the complexion of this new plan
countenance such a supposition? When they unprecedently claim the power of
raising and supporting armies, do they tell you for what purposes they are to
be raised? How they are to be employed? How many they are to consist of, and
where stationed? Is this power fettered with any one of those restrictions,
which will show they depend upon the militia, and not upon this infernal
engine of oppression to execute their civil laws? The nature of the demand in
itself contradicts such a supposition, and forces you to believe that it is
for none of these causes--but rather for the purpose of consolidating and
finally destroying your strength, as your respective governments are to be
destroyed. They well know the impolicy of putting or keeping arms in the hands
of a nervous people, at a distance from the seat of a government, upon whom
they mean to exercise the powers granted in that government....   It is
asserted by the most respectable writers upon government, that a well
regulated militia, composed of the yeomanry of the country, have ever been
considered as the bulwark of a free people. Tyrants have never placed any
confidence on a militia composed of freemen.58

----

56. 'A Democratic Federalist' Letter, Pa. Packet (Phila.), Oct. 23, 1787.

57. 'Centinel' Letter, Independent Gazetteer (Phila.), Nov. 8, 1787.

58. 'John De Witt' Letter, Am. Herald (Boston), De. 3, 1787.

Fall 1975]          STANDING ARMIES              987

  Anonymous pamphleteers and propagandists were not the only persons concerned
about standing armies and the militia. Richard Henry Lee, in a letter that was
widely circulated in Virginia, combined the contradictory arguments that the
militia would be abandoned in favor of a standing army, and that the militia
would be strengthened and forged into an instrument of tyranny. He foresaw
that a small proportion of the total militia would be made into a select unit,
much like a standing army, while the rest of the militia would be disarmed:

  Should one fifth, or one eighth part of the men capable of bearing arms, be
made a select militia, as has been proposed, and those the young and ardent
part of the community, possessed of but little or no property, and all the
others put upon a plan that will render them of no importance, the former will
answer all the purposes of any army, while the latter will be defenceless.59

  A necessary premise underlying Anti-federalist attack on the militia clauses
of the Constitution was that these clauses operated to place exclusive
jurisdiction over the militia in the hands of the general government. Though
the Federalists denied this premise, it was affirmed even by Luther Martin and
Elbridge Gerry, who had been members of the Federal Convention, but who now
opposed the Constitution. Martin is particularly interesting because he
advanced all of the contradictory arguments used by the antifederalists.
Speaking on November 29, 1787 to the Maryland legislature, he said:

  . . . Engines of power are supplied by the standing Army-- unlimited as to
number or its duration, in addition to this Government has the entire Command
of the Militia, and may call the whole Militia of any State into Action, a
power, which it was vainly urged ought never to exceed a certain proportion.
By organizing the Militia Congress have taken the whole power from the State
Governments; and by neglecting to do it and encreasing the Standing Army,
their power will increase by those very means that will be adopted and urged
as an ease to the People.60

Martin later invoked the opposite approach, that the militia would be subject
to ruthless discipline and martial law, and would be marched to the ends of
the continent in the service of tyranny. In a letter published on January 18,
1788, Martin wrote that the new system for governing the militia was "giving
the states the last coup de grace by taking from them the only means of self
preservation.''61

  Elbridge Gerry, like many of the pamphleteers, viewed centralized military
power as inseparable from monarchy:

----

59. R. H. LEE, OBSERVATIONS LEADING TO A FAIR EXAMINATION OF THE SYSTEM OF
GOVERNMENT PROPOSED BY THE LATE CONVENTION 24-25 (1787).

60. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 157 (M. Farrand ed.
1911).

61. Martin, Letter, Md. Journal, Jan. 18, 1788.

988    HASTINGS CONSTITUTIONAL LAW QUARTERLY [VOL. 2

  By the edicts of authority vested in the sovereign power by the proposed
constitution, the militia of the country, the bulwark of defence, and the
security of national liberty is no longer under the control of civil
authority; but at the rescript of the Monarch, or the aristocracy, they may
either be employed to extort the enormous sums that will be necessary to
support the civil list--to maintain the regalia of power--and the splendour of
the most useless part of the community, or they may be sent into foreign
countries for the fulfilment of treaties, stipulated by the President and two
thirds of the Senate.62

  The supporters of the proposed constitution were well-prepared to meet these
and similar arguments. They had the support of America's two national heroes,
George Washington and Benjamin Franklin, and this helped make the Constitution
respectable, as well as alleviating fears. Articles favoring the Constitution,
such as the Federalist Papers, were often reprinted in distant states.
Intelligent and well-educated, the proponents of the new government carefully
and consistently answered the arguments of their rivals.

  To the general argument that there were not sufficient restrictions on the
power of the proposed general government, the federalists replied that no bill
of rights was necessary. This was because the Constitution would establish a
novel type of government, one of enumerated powers; restrictions were
necessary only where full sovereignty was conferred. In Federalist Number 84,
Alexander Hamilton made the argument in these words:

  It has been several times truly remarked that bills of rights are, in their
origin, stipulations between kings and their subjects, abridgements of
prerogative in favor of privilege, reservations of rights not surrendered to
the prince Such was MAGNA CHARTA, obtained by the barons, sword in hand from
King John. Such were the subsequent confirmations of that charter by
succeeding princes. Such was the Petition of Right assented to by Charles I,
in the beginning of his reign. Such, also, was the Declaration of Right
presented by the Lords and Commons to the Prince of Orange in 1688, and
afterwards thrown into the form of an act of parliament called the Bill of
Rights. It is evident, therefore, that, according to their primitive
signification, they have no application to constitutions professedly founded
upon the power of the people, and executed by their immediate representatives
and servants.63

  To particular criticism of the military clauses of the proposed
Constitution, both Hamilton and Madison replied in detail in the Federalist
Papers.

----

62. E. GERRY, OBSERVATIONS ON THE NEW CONSTITUTION AND ON THE FEDERAL AND
STATE CONVENTIONS 10 (1788).

63. THE FEDERALIST NO. 84, at 536 (H. Lodge ed. 1888) (A. Hamilton).

Fall 1975]          STANDING ARMIES              989

  Hamilton denied that a standing army was unnecessary, citing recent
experience:

  Here I expect we shall be told that the militia of the country is its
natural bulwark, and would be at all times equal to the national defence. This
doctrine, in substance, had like to have lost us our independence. It cost
millions to the United States that might have been saved....   The American
militia, in the course of the late war, have, by their valor on numerous
occasions, erected eternal monuments to their fame; but the bravest of them
feel and know that the liberty of their country could not have been
established by their efforts alone, however great and valuable they were. War,
like most other things, is a science to be acquired and perfected by
diligence, by perseverance, by time, and by practice.64

Hamilton did not, however, go so far as to say that standing armies were a
good thing. Instead, he argued that a strong militia would minimize the need
for them.65

  Madison also addressed himself to the fear that the new national government
would disarm the militia and destroy state government. He first argued that
the states would still have concurrent power over the militia, thus denying
that the proposed Constitution gave exclusive jurisdiction over the militia to
the general government. He also pointed out that the militia, comprised of
half a million men, was a force that could not be overcome by any tyrant.66

  The arguments of the federalists appear to have quieted the fears of their
countrymen, since the early state conventions were all easy victories for the
new Constitution. Between December 7, 1787 and January 9, 1788, Delaware,
Pennsylvania, New Jersey, Georgia and Connecticut all ratified unconditionally
and overwhelmingly; the vote was unanimous in three of these states. In
Massachusetts, the contest was close. On February 6, 1787, the state
convention ratified the new Constitution by a narrow margin.

----

64. Id. No. 25 at 150 (A. Hamilton).

65. Hamilton explained: "If a well-regulated militia be the most natural
defence of a free country, it ought certainly to be under the regulation and
at the disposal of that body which is constituted the guardian of the national
security. If standing armies are dangerous to liberty, an efficacious power
over the militia, in the body to whose care the protection of the state is
committed ought, as far as possible, to take away the inducement and the
pretext to such unfriendly institutions. If the federal government can command
the aid of the militia in those emergencies which call for the military arm in
support of the civil magistrate, it can the better dispense with the
employment of a different kind of force. If it cannot avail itself of the
former, it will be obliged to recur to the latter. To render an army
unnecessary will be a more certain method of preventing its existence than a
thousand prohibitions upon paper." Id. No. 29, at 169 (A. Hamilton).

66. Id. No. 46, at 297-99 (1. Madison).

990     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [Vol. 2

  On the other hand, Maryland overwhelmingly approved the Constitution on
April 28, 1787. South Carolina was next, on May 23, 1787. Eight states had now
ratified the document and only one more was needed. All of the ratifications,
except Massachusetts, had been by majorities of two-thirds or more. The
remaining states were to see close contests, and all of them would suggest
that a Bill of Rights be added to the Constitution.

  New Hampshire, on June 21, 1787, became the ninth state to approve the new
form of government, thus assuring that the proposed Constitution would go into
effect. The New Hampshire convention proposed some amendments in its ratifying
resolution. Among the proposals were a three-fourths vote requirement for
keeping standing armies, a flat prohibition on quartering troops, and a
prohibition against Congressional disarmament of the militia. Although no
records were kept of the debates, it seems likely that the delegates feared
that New England's experiences with General Gage's redcoats would be repeated.

  As yet undecided, Virginia was vital to the Union as the largest, richest,
and most populous state. The Virginia convention was also important because it
was the only one in which the military clauses of the Constitution were
extensively discussed.

  The main protagonist of the Virginia debates was Patrick Henry, backwoods
lawyer, ardent republican, and incomparable orator. By means of the rhetorical
question, Henry was able to capture the fears and emotions which led to the
adoption of the Second Amendment:

  A standing army we shall have, also, to execute the execrable commands of
tyranny; and how are you to punish them? Will you order them to be punished?
Who shall obey these orders? Will your mace-bearer be a match for a
disciplined regiment? In what situation are we to be? . . .   Your militia is
given up to Congress, also, in another part of this plan: they will therefore
act as they think proper: all power will be in their own possession. You
cannot force them to receive their punishment: of what service would militia
be to you when most probably, you will not have a single musket in the state?
for as arms are to be provided by Congress, they may or may not furnish
them....   By this, sir, you see that their control over our last and best
defence is unlimited. If they neglect or refuse to discipline or arm our
militia, they will be useless: the states can do neither--this power being
exclusively given to Congress....   . . . If we make a king, we may prescribe
the rules by which he shall rule his people, and interpose such checks as
shall prevent him from infringing them; but the President, in the field, at
the head of his army, can prescribe the terms on which he shall reign master,
so far that it will puzzle any American ever to get his neck from under the
galling yoke....67

  While other critics lacked Henry's oratorical talents, they also feared
disarmament of the militia by the new national government. George Mason, for
example, spoke as follows:

  . . . There are various ways of destroying the militia. A standing army may
be perpetually established in their stead. I abominate and detest the idea of
government, where there is a standing army. The militia may be here destroyed
by that method which has been practised in other parts of the world before;
that is, by rendering them useless--by disarming them. Under various
pretences, Congress may neglect to provide for arming and disciplining the
militia; and the state governments cannot do it, for Congress has an exclusive
right to arm them . . .68

Mason then went on to cite the case of a former British governor of
Pennsylvania who had allegedly advised disarmament of the militia as part of
the British government's scheme for "enslaving America." The suggested method
was not to act openly, but "totally disusing and neglecting the militia."69
Mason said:

. . . This was a most iniquitous project. Why should we not provide against
the danger of having our militia, our real and natural strength, destroyed?
The general government ought, at the same time, to have some such power. But
we need not give them power to abolish our militia . . .70

  In these words lie the origin of the Second Amendment. The new government
should be allowed to keep its broad general military powers, but it should be
forbidden to disarm the militia.

  Madison, leader of the Federalist forces, still argued that the militia
clauses were adequate as written. He said the states and national government
would have concurrent power over the militia. In response to a question, he
explained why the general government was to have power to call out the militia
in order to execute the laws of the union:

. . . If resistance should be made to the execution of the laws, he said, it
ought to be overcome. This could be done only in two ways--either by regular
forces or by the people. If insurrections should arise, or invasions should
take place, the people ought unquestionably to be employed, to suppress and
repel them, rather than a standing army. The best way to do these things was
to put the militia on a good and sure footing, and enable the government to
make use of their services when necessary.71

----

67. Spoken at the Virginia Convention 3 STATE DEBATES 51-59.

68. Id. at 379.

69. Id. at 380.

70. Id.

71. Id. at 378.

992     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [Vol. 2

It is interesting to note that Madison uses the words "people" and "militia"
as synonymous, as does the Second Amendment, which he was later to draft.

  The Federalists still maintained that a bill of rights was unnecessary where
there was a government of enumerated powers. Governor Randolph, who had
attended the Philadelphia Convention and had refused to sign the Constitution,
but who was now supporting its adoption, spoke as follows:

  On the subject of a bill of rights, the want of which has been complained
of, I will observe that it has been sanctified by such reverend authority,
that I feel some difficulty in going against it. I shall not, however, be
deterred from giving my opinion on this occasion, let the consequence be what
it may. At the beginning of the war, he had no certain bill of rights; for our
charter cannot be considered as a bill of rights; it is nothing more than an
investiture, in the hands of the Virginia citizens, of those rights which
belonged to British subjects. When the British thought proper to infringe our
rights, was it not necessary to mention, in our Constitution, those rights
which ought to be paramount to the power of the legislature? Why is the bill
of rights distinct from the Constitution? I consider bills of rights in this
view--that the government should use them, where there is a departure from its
fundamental principles, in order to restore them.72

This statement is very important, because it clearly explains how men in the
eighteenth century conceived of a right. A right was a restriction on
governmental power, necessitated by a particular abuse of that power.

  The Virginia convention, however, decided that it would be wise to impose
restrictions on the power of the general government before abuses occurred. So
the delegates appended to their ratification resolution a long document
recommended to the consideration of the Congress. This document is divided
into two distinct parts: a declaration of principles and specified suggested
amendments to the Constitution designed to secure these principles.

  The declaration of principles tells much about the social and political
philosophy of eighteenth century Americans. The theory of government as a
social compact is affirmed. There are five provisions that relate directly to
the background of the Second Amendment.

  The third principle condemns the Anglican doctrine of nonresistance as
"absurd, slavish, and destructive of the good and happiness of mankind."73
This is not surprising, since Virginia had recently disestablished the
Anglican Church, and had taken up arms to resist the authority of the head of
that church.

  The seventh principle is "that all power of suspending laws or the execution
of laws by any authority, without the consent of the representatives of the
people in the legislature is injurious to their rights, and ought not to be
exercised."74 The attempt to assert such power had cost James II his throne
and George III his American colonies, even though both Kings had been backed
by powerful standing armies.

  The seventeenth, eighteenth and nineteenth principles are as follows:

  Seventeenth, That the people have a 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 defence of a free State. That standing armies in time
of peace are dangerous to liberty, and therefore ought to be avoided, as far
as the circumstances and protection of the Community will admit; and that in
all cases the military should be under strict subordination to and governed by
the Civil power.   Eighteenth, That no Soldier in time of peace ought to be
quartered in any house without the consent of the owner, and in the time of
war in such manner only as the laws direct.   Nineteenth, That any person
religiously scrupulous of bearing arms ought to be exempted upon payment of an
equivalent to employ another to bear arms in his stead.76

These words encapsulate the Whig point of view in the long debate over the
relative merits of standing armies and the militia. The specific amendments
that were proposed to protect these principles were:

  Ninth, That no standing army or regular troops shall be raised or kept up in
time of peace, without the consent of two thirds of the members present in
both houses.   Tenth, That no soldier shall be inlisted for any longer term
than four years, except in time of war, and then for no longer term than the
continuance of the war.   Eleventh, That each State respectively shall have
the power to provide for organizing, arming and disciplining it's own Militia,
whensoever Congress shall omit or neglect to provide for the same. That the
Militia shall not be subject to Martial law, except when in actual service in
time of war, invasion, or rebellion, and when not in the actual service of the
United States, shall be subject only to such fines, penalties and punishments
as shall be directed or inflicted by the laws of its own State.76

It is important for our purposes to note that there is no mention here of any
individual right.

----

74. Id. at 661.

75. Id. at 662.

76. Id. at 663.

994     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [Vol. 2

The Purpose of the Second Amendment

  There might never have been a federal Bill of Rights had it not been for one
alarming event that is almost forgotten today. As part of the price of
ratification in New York, it was agreed unanimously that a second federal
convention should be called by the states, in accordance with Article V of the
Constitution, to revise the document. Governor Clinton wrote a circular letter
making this proposal to the governors of all the states.

  Madison feared that a new convention would reconsider the whole structure of
government and undo what had been achieved. Professor Merrill Jensen, in The
Making of the American Constitution, analyzes the situation as follows:

  The Bill of Rights was thus born of Madison's concern to prevent a second
convention which might undo the work of the Philadelphia Convention, and also
of his concern to save his political future in Virginia. On the other side
such men as Patrick Henry understood perfectly the political motives involved.
He looked upon the passage of the Bill of Rights as a political defeat which
would make it impossible to block the centralization of all power in the
national government.77

Madison had outmaneuvered the anti-federalists by drafting the Bill of Rights
very soon after the First Congress met.

  Madison's original draft of the provision that eventually became the Second
Amendment read:

  The right of the people to keep and bear arms shall not be infringed; a well
armed but 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.78

There was debate in Congress over the religious exemption, and it was removed.
Otherwise, there was general discussion of standing armies and the militia,
and widespread support for the proposal. It became part of the Constitution
with the rest of the Bill of Rights on December 15, 1791.

  Considering the immediate political context of the Second Amendment, as well
as its long historical background, there can be no doubt about its intended
meaning. There had been a long standing fear of military power in the hands of
the executive, and, rightly or wrongly, many people believed that the militia
was an effective military force which minimized the need for such executive
military power. The proposed Constitution authorized standing armies, and
granted sweeping Congressional power over the militia. Some even feared
disarmament of the militia. The Second Amendment was clearly and simply an
effort to relieve that fear.

  Neither in the Philadelphia Convention, in the writings of the pamphleteers,
in the newspapers, in the convention debates, nor in Congress was there any
reference to hunting, target shooting, duelling, personal self-defense, or any
other subject that would indicate an individual right to have guns. Every
reference to the right to bear arms was in connection with military service.

  Thus the inevitable conclusion is that the "collectivist" view of the Second
Amendment rather than the "individualist" interpretation is supported by
history. It thus becomes necessary to examine the decisions of the Supreme
Court in order to determine whether that body has expanded the right to bear
arms beyond what was intended in 1789.

                   VII. Supreme Court Interpretation
of the Second Amendment

  The Second Amendment has been directly considered by the Supreme Court in
only four cases: United States v. Cruikshank,79 Presser v. Illinois,80 Miller
v. Texas81 and United States v. Miller.82

  In Cruikshank, the defendants had been convicted of conspiracy to deprive
negro citizens of the rights and privileges secured to them by the
Constitution and laws of the United States, in violation of the criminal
provisions of the Civil Rights Act of 1870. Among the rights violated were the
right to peaceably assemble and the right to keep and bear arms for a lawful
purpose.

  Chief Justice Waite, speaking for the majority, held that the rights
violated by the defendants were not secured by the Constitution or laws of the
United States, and thus the judgment of conviction was affirmed. The chief
justice began with a long discussion of the nature of the federal system in
general, and the attributes of state and national citizenship in particular.
The only rights protected by the national government were those necessary for
participation in that government. The right to petition Congress would be such
a right, but a person must look

79. 92 U.S. 542 (1875).

80. 116 U.S. 252 (1886).

81. 153 U.S. 535 (1894).

82. 307 U.S. 174 (1939).

996     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [Vol. 2

to his state government for protection of similar rights in other situations.

  In particular reference to the Second Amendment, the opinion states:

  The second and tenth counts are equally defective. The right there specified
is that of "bearing arms for a lawful purpose." This is not a right granted by
the Constitution. Neither is it in any manner dependent upon that instrument
for its existence. The second amendment declares that it shall not be
infringed; but this, as has been seen, means no more than that it shall not be
infringed by Congress. This is one of the amendments that has no other effect
than to restrict the powers of the national government, leaving the people to
look for their protection against any violation by their fellow-citizens of
the rights it recognizes, to what is called, in The City of New York v. Miln,
11 Pet. 139, the "powers which relate to merely municipal legislation, or what
was, perhaps, more properly called internal police," "not surrendered or
restrained" by the Constitution of the United States.83

  The only dissenter in Cruikshank was Justice Clifford, who found the
indictment vague on its face. He thus concurred in the result reached by the
majority without discussing any constitutional issues.

  The next, and undoubtedly the most important Second Amendment case was
Presser v. Illinois84 decided in 1886. Herman Presser, a German-American, was
the leader of Lehr und Wehr Verein, a fraternal, athletic and paramilitary
association incorporated under Illinois law. He was convicted for parading and
drilling with men under arms, in violation of an Illinois statute, and was
fined ten dollars.

  On appeal to the United States Supreme Court, it was contended that the
Illinois statute conflicted with the military powers given to Congress by the
Constitution, with federal statutes passed in pursuance of those powers, and
with various other parts of the Constitution, including the Second Amendment.
The Supreme Court unanimously rejected all of these claims and affirmed the
conviction.

  It should be emphasized that Presser was argued and decided as a case
presenting broad issues of the relationship of state and federal military
power, and that the Second Amendment was only one aspect of that question. In
reference to the Illinois statute, the Court observed:

  We think it dear that the sections under consideration, which only forbid
bodies of men to associate together as military organizations, or to drill or
parade with arms in cities and towns unless authorized by law, do not infringe
the right of the people to keep

----

83. 92 U.S. at 553 (1875).

84. 116 U.S. 252 (1886).

Fall 1975]            STANDING ARMIES                 997

and bear arms. But a conclusive answer to the contention that this amendment
prohibits the legislation in question lies in the fact that the amendment is a
limitation only upon the power of Congress and the National government, and
not upon that of the States.85

The Court cited Cruikshank in support of this proposition. The inapplicability
of the Second Amendment to the states was a sufficient ground for rejecting
Presser's Second Amendment contentions, but the Court did not stop there. It
preferred to discuss the problem further and make clear the nature of the
right protected by the Second Amendment.

  It is undoubtedly true that all citizens capable of bearing arms constitute
the reserved military force or reserve militia of the United States as well as
of the States, and, in view of this prerogative of the general government, as
well as of its general powers, the States cannot, even laying the
constitutional provision in question out of view, prohibit the people from
keeping and bearing arms, so as to deprive the United States of their rightful
resource for maintaining the public security, and disable the people from
performing their duty to the general government.86

  One view of the Second Amendment suggests that this dicta constitutes the
first step toward incorporating the right to bear arms into the Fourteenth
Amendment,87 apparently forgetting that the Court was laying the Second
Amendment "out of view." The Court had stated that the Illinois law does not
have the effect of depriving the federal government of its military capacity.

  To further clarify its view that the Second Amendment is concerned only with
military matters, the opinion focuses on Presser:

  The plaintiff in error was not a member of the organized volunteer militia
of the State of Illinois, nor did he belong to the troops of the United States
or to any organization under the militia law of the United States. On the
contrary, the fact that he did not belong to the organized militia or the
troops of the United States was an ingredient in the offence for which he was
convicted and sentenced. The question is, therefore, had he a right as a
citizen of the United States, in disobedience of the State law, to associate
with others as a military company, and to drill and parade with arms in the
towns and cities of the State? If the plaintiff in error has any such
privilege he must be able to point to the provision of the Constitution or
statutes of the United States by which it is conferred.88

The obvious implication here is that any right to bear arms by virtue of the
Second Amendment, even if asserted against the national gov-

----

85. Id. at 264-65.

86. Id. at 265.

87. See generally H. Black, The Bill of Rights, 35 N.Y.U.L. REV. 865 (1960).

88. Id. at 266.

998     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [Vol. 2

ernment, is contingent upon military service in accordance with statutory law.
This implication is confirmed later in the opinion, as the Court declared:

  The right to voluntarily associate together as a military company or
organization, or to drill or parade with arms, without, and independent of, an
act of Congress or law of the State authorizing the same, is not an attribute
of national citizenship. Military organization and military drill and parade
under arms are subjects especially under the control of the government of
every country. They cannot be claimed as a right independent of law.89

  Thus the Presser case clearly affirms the meaning of the Second Amendment
that was intended by its framers. It protects only members of a state militia,
and it protects them only against being disarmed by the federal government.
There is no individual right that can be claimed independent of state militia
law. Furthermore, the dicta relating to preservation of the nation's military
capacity could not be used as the basis for questioning any regulation of
private firearms, unless such a regulation violated an act of Congress;
Congress is obviously the best judge of the proper means of preserving the
nation's military capacity.

  The third, and least important, of the Second Amendment cases was Miller v.
Texas.90 A convicted murderer asserted that the state had violated his Second
and Fourth Amendment rights. The Supreme Court unanimously dismissed the claim
in one sentence, relying on the inapplicability of these provisions to the
states, and citing Cruikshank and other cases.

  The fourth and last time that the Supreme Court considered the Second
Amendment was in United States v. Miller.91 The result reached by Justice
McReynolds for a unanimous Court was obviously correct, but the opinion is so
brief and sketchy that it has undoubtedly caused much of the uncertainty that
exists today about the meaning of the Second Amendment.

  Defendants Miller and Layton were indicted for violation of the National
Firearms Act of 1934,92 which was designed to help control gangsters, and
which infringed the right to keep and bear sawed off shotguns, among other
arms. The District Court of the United States for the Western District of
Arkansas sustained a demurrer and quashed the indictment, holding the 1934 Act
unconstitutional on Second

----

89. Id. at 267.

90. 153 U.S. 535 (1894).

91. 307 U.S. 174 (1939).

92. National Firearms Act as amended 26 U.S.C.  [sections] 5801-5872 (1972).

Fall 1975]          STANDING ARMIES              999

Amendment grounds. The government appealed to the Supreme Court, which
reversed and remanded.

  When Miller was argued before the High Court, there was no appearance for
the defendants. With only one side presenting a case, it is easy to understand
why the Court viewed the issues as rather simple, and not needing very much
analysis.

  The Court began by observing that the National Firearms Act was a valid
revenue measure, and not a usurpation of the police powers of the states. The
opinion then addresses itself to the Second Amendment issue:

  In the absence of any evidence tending to show that possession or use of a
"shotgun having a barrel of less than eighteen inches in length" at this time
has some reasonable relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument. Certainly it is not within judicial
notice that this weapon is any part of the ordinary military equipment or that
its use could contribute to the common defense.93

  It is this paragraph that is the source of the uncertainty and confusion
arising from the Miller case. The Court was merely correcting the error of the
district judge, but it made the mistake of looking at the weapon, rather than
the person, in determining that the Second Amendment is not applicable.

  Fortunately, however, Justice McReynolds went on and partially clarified the
ambiguity in the above paragraph. He cited the militia clauses of the
Constitution and said:

With obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied with that end in
view.94

These words alone undercut any individual right interpretation of the Second
Amendment.

  Justice McReynolds then proceeded to give a brief history of the militia,
stressing its function as a military force. He then considered the relevance
of state interpretations of the right to bear arms, and noted:

  Most if not all of the States have adopted provisions touching the right to
keep and bear arms. Differences in the language employed in these have
naturally led to somewhat variant conclusions concerning the scope of the
right guaranteed.95

----

93. 307 U.S. at 178.

94. Id.

95. Id. at 182.
                     169

1000     HASTINGS CONSTITUTIONAL LAW QUARTERLY   [Vol. 2

He concluded that such decisions did not support the trial judge's ruling. He
then referred the reader to "some of the more important opinions" concerning
the militia. First among these opinions was Presser v. Illinois.96

  Thus, in spite of some ambiguity in the Court's opinion in Miller, there is
no reason to suppose that there was any change in the established view that
the Second Amendment defines and protects a collective right that is vested
only in the members of the state militia.

                            VIII. Conclusion

  In the last angry decades of the twentieth century, members of rifle clubs,
paramilitary groups and other misguided patriots continue to oppose
legislative control of handguns and rifles. These ideological heirs of the
vigilantes of the bygone western frontier era still maintain that the Second
Amendment guarantees them a personal right to "keep and bear arms."97 But the
annals of the Second Amendment attest to the fact that its adoption was the
result of a political struggle to restrict the power of the national
government and to prevent the disarmament of state militias.98 Not unlike
their English forbears, the American revolutionaries had a deep fear of
centralized executive power, particularly when standing armies were at its
disposal. The Second Amendment was adopted to prevent the arbitrary use of
force by the national government against the states and the individual.

  Delegates to the Constitutional Convention had no intention of establishing
any personal right to keep and bear arms. Therefore the "individualist" view
of the Second Amendment must be rejected in favor of the "collectivist"
interpretation, which is supported by history and a handful of Supreme Court
decisions on the issue.

  As pointed out previously, the nature of the Second Amendment does not
provide a right that could be interpreted as being incorporated into the
Fourteenth Amendment. It was designed solely to protect the states against the
general government, not to create a personal right which either state or
federal authorities are bound to respect.

----

96. 116 U.S. 252 ( 1886).

97. A recent call to action was made by an organization which calls itself the
Sheriff's Posse Comitatus. This group, dismayed over claimed violations of the
Second Amendment promises to "come together and do something about it." Its
propaganda concludes rather ominously, "The PEOPLE are the rightful masters to
both congress and courts, not to over throw (sic) the Constitution, but to
over throw (sic) the men who pervert the Constitution." Flyer, Sheriff's Posse
Comitatus, Petaluma, California, 1975.

98. See notes 60-66 and accompanying text.
                        170

Fall 1975]          STANDING ARMIES              1001

  The contemporary meaning of the Second Amendment is the same as it was at
the time of its adoption. The federal government may regulate the National
Guard, but may not disarm it against the will of state legislatures. Nothing
in the Second Amendment, however, precludes Congress or the states from
requiring licensing and registration of firearms; in fact, there is nothing to
stop an outright congressional ban on private ownership of all handguns and
all rifles.



                SOURCE:                 HASTINGS CONSTITUTIONAL
LAW QUARTERLY                 Vol. 2, No. 1, Winter,                 1975



         Reprinted with permission





###############################################################



                         171

                    THE ASSOCIATION OF THE BAR                            OF
THE CITY OF NEW YORK                        42 West 44th Street, New York,
N.Y. 10036

                     Gun Control Legislation

 By THE COMMITTEE ON FEDERAL LEGISLATION

                           INTRODUCTION

  Since the enactment of the Gun Control Act of 1968 there has been a
substantial increase in the incidence of gun-related crimes and it has become
evident that the existing system of law is inadequate. Efforts have been
underway in both Houses of Congress to enact further gun control legislation
and the Executive Branch has indicated support for stronger gun control. Both
the Subcommittee on Crime of the House Committee on the Judiciary and the
Subcommittee on Crime and Juvenile Delinquency of the Senate Committee on the
Judiciary have accumulated a substantial factual record on which to base
legislation.

  We believe that the contribution of handguns to the current increase in
homicide and other violent crimes requires immediate and comprehensive action.
In our opinion, the continued existence of an unwarranted supply of handguns
is an underlying factor in the decline of our major urban centers. This
Committee does not find any substantial justification for the continued
widespread public possession of handguns, and, accordingly, we strongly
endorse the legislative proposals calling for a prohibition on the
manufacture, importation, sale, and private possession of handguns.1 Whether
or not our recommendations are politically feasible at this moment in time, we
are of the firmly held conviction that a complete ban on handguns should be
the ultimate objective of any new federal gun control legislation.

  This report is divided into four parts. Part I describes the current federal
law and the congressional proposals for change. Part II examines the
constitutional bases for Congress legislating a prohibition on the
manufacture, importation, sale, and private possession of handguns. Part III
discusses the need for adopting far reaching gun control legislation. Our
recommendations are contained in Part IV.

                REPRINTED WITH PERMISSION

               II. GUN CONTROL AND THE CONSTITUTION

  To determine whether a federal statute restricting handguns would be
constitutional, two questions must be answered: (A) Is there a constitutional
right to possession of handguns which cannot be infringed by legislation, and
(B) does regulation of handguns fall within the scope of any of the subjects
on which Congress is empowered by the Constitution to legislate? A review of
the relevant decisions demonstrates that Congress may constitutionally enact
legislation restricting and prohibiting the possession of handguns by private
citizens.10

A. Is There a Constitutional Right to Possess Handguns?

  Debates on the merits of gun control legislation are regularly punctuated by
claims of a constitutional right to possess firearms. The source of these
claims is the Second Amendment to the Constitution, which provides:

  "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."

Although spirited controversy as to the meaning of the Second Amendment
continues unabated among commentators,11 courts over a long period of time
have consistently given the amendment a very narrow construction. The Second
Amendment as so interpreted places no restrictions on Congress' ability to
regulate handguns.

  A constitutional provision concerning the right to "bear Arms" is directed
at checking power. The question is what the framers of the Constitution
intended. There are basically three relationships which could have been
intended to be affected: (1) the individual against the world; (2) the
populace against the government, whether state or federal; and (3) the state
government against the federal government. The first possibility, that the
framers were concerned with the right of individuals to protect their homes
and their persons from whatever depredations might confront them, appears to
be without historical support.12 The amendment itself speaks of the "security
of a free State." The disputes have centered around the second and third
possibilities.

  The initial question is the proper interpretation of the term "Militia." The
practice in Europe of maintaining large standing armies while prohibiting the
general populace from having guns led to a preference in colonial America for
the militia as the primary military force. This force would be drawn from the
people and would be active only in time of military need.13

  Some have argued that the militia was regarded as the populace at large--or
at least those members of the populace capable of bearing arms.14 To these
commentators, militia meant the "unorganized militia," so that the Second
Amendment must be read as permitting the populace to maintain arms as a check
against excesses of any or all government. This position is sometimes
characterized as more extreme than it really is. The framers of the
Constitution need not have created a "right to revolution" or a license to
band together in paramilitary organizations to have established a check on the
government by permitting the populace to keep and bear arms.15 Whatever the
merits of the "unorganized militia" analysis may be, however, it has never
found judicial favor.

  The federal courts have long regarded the Second Amendment as concerned only
with the "organized militia" maintained by the states. In 1875, the Supreme
Court ruled in United States v. Cruickshank16 that the Second Amendment
restricted Congress alone and not state governments. More recently, in United
States v. Miller,17 the Supreme Court held that Congress could regulate
firearms so long as there was no evidence of a relationship between the
regulation and the preservation or efficiency of the state militia. The Court
said that Miller could not attack his indictment for interstate shipment of a
sawed-off shotgun under the Second Amendment:

  "In the absence of any evidence tending to show that possession or use of a
'shotgun having a barrel of less than eighteen inches in length' at this time
has some reasonable relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment guarantees the
right to keep and bear such an instrument. Certainly it is not within judicial
notice that this weapon is any part of the ordinary military equipment or that
its use could contribute to the common defense."18

  Some have argued that the Miller case should be read narrowly, since
evidence of a military use can be shown as a matter of fact for most kinds of
weapons.19 However, federal courts after Miller have read the decision as
requiring a showing that the challenged legislation actually interfered with
the state militia. Under this standard, Second Amendment challenges to federal
gun control legislation uniformly have been rejected.20

  Further, even if the Second Amendment were to be interpreted to refer to an
"unorganized militia," it would not follow that Congress would be barred from
regulating the ownership of handguns. Such regulation would still be
constitutional unless handguns were regarded as "Arms" within the meaning of
the Second Amendment. It appears instead that the "Arms" of the militia were
understood to consist of rifles and muskets.

  In addition to the constitutional provisions and old state statutes quoted
in United States v. Miller21 and other secondary sources,22 there are a number
of early cases considering whether handguns are "arms" within the meaning of
the Second Amendment. While the decisions are not uniform, the weight of
authority is that handguns do not constitute such "Arms."23

  This position is most effectively expressed in State v. Workman,24 where the
Supreme Court of Appeals of West Virginia wrote:

  "...in regard to the kind of arms referred to in the amendment, it must be
held to refer to the weapons of warfare to be used by the militia, such as
swords, guns, rifles, and muskets,--arms to be used in defending the state and
civil liberty,--and not pistols, bowie-knives,

                               174

brass knuckles, billies, and such other weapons as are usually employed in
brawls, street fights, duels, and affrays, and are only habitually carried by
bullies, blackguards, and desperadoes, to the terror of the community and the
injury of the state."25

Thus, in our view, the Second Amendment poses no barrier to congressional
efforts to reduce "the terror of the community and the injury of the state" by
prohibiting the private possession of handguns.

B. Does Congress Have Power to Regulate the Manufacture, Possession and Sale
of All Handguns?

  While several congressional powers could be invoked in support of gun
control legislation,26 justification is ordinarily found under Congress' power
to regulate interstate and foreign commerce.27 There can be no serious dispute
that certain kinds of gun-related activities--for example, interstate sales of
firearms--can be regulated under the commerce clause. The disagreements arise
over how far Congress may go in regulating local gun activity under its power
to regulate matters "affecting" commerce.

  In United States v. Bass,28 the Supreme Court recently avoided a
constitutional issue concerning 18 U.S.C. [section] 1202, which prohibits the
transportation, receipt or possession of guns by felons, by holding that proof
that the prohibited conduct in each case was in commerce or affected commerce
was required by the statute. Prior courts of appeals decisions had differed as
to whether that statute was a constitutional exercise of the commerce power
without such proof.29

  However, in Perez v. United States,30 a case decided shortly before the Bass
case, the Supreme Court had laid the groundwork for the power to create a
federal criminal law under the commerce clause. The Perez case concerned the
constitutionality of a provision in Title II of the Consumer Credit Protection
Act, 18 U.S.C. [sections] 891 et seq., making loansharking a federal crime. In
holding that Perez had been lawfully convicted despite the absence of proof of
the effect of his conduct on commerce, the Court cited a variety of reports
and statistical studies providing evidentiary support for the congressional
finding that, in the aggregate, loansharking had an effect on commerce. It
concluded, therefore, that Congress could prohibit the practice regardless of
the extent to which the activities of each particular loan shark may have
affected commerce.

  An examination of Perez and its progeny, and of other federal criminal
legislation regulating local activity, points out what may have led the
Supreme Court to take a very narrow position in the Bass case, namely the lack
of any substantial legislative findings. In Perez, the Court put great
emphasis on the findings made by Congress of the impact of load sharking on
interstate commerce, even as a local activity, and on the very substantial
evidence which was available to Congress to support those findings. In Bass,
in contrast, there was virtually no legislative history to guide the Court in
its interpretation of congressional intentions.

  The implication of the limitation on Congress' attempted exercise of power
in the Bass case is that if gun control legislation is supported by
substantial documentation and carefully drawn congressional findings
concerning the effects of the proscribed activity on interstate commerce
generally, the Supreme Court would sustain the exercise of power under the
commerce clause even if the activity of specific individuals were purely local
in nature.

  In a number of cases involving federal gun control legislation arising after
Bass, courts have followed Perez to uphold the power of Congress to regulate
firearms felonies without a showing in each case of a nexus with interstate
commerce.31. In United States v. Nelson,32 the Fifth Circuit affirmed a
conviction under 18 U.S.C. [section] 922(a)(6), which prohibits the making of
false statements in connection with the acquisition of a firearm, in spite of
a failure to show a nexus between the defendant's false statements to the gun
dealer and interstate commerce. Although the individual activity was clearly
local, the court found that under Perez the Congress does have the power to
regulate an intrastate activity, an isolated instance of which may have no
direct connection with interstate commerce, because that intrastate activity
in the aggregate does impose a burden on interstate commerce.33

  The decision in Nelson leaves open the question whether Congress has the
power under the Perez theory to regulate possession of a firearm. It could be
argued that the manufacture and sale of firearms presents a stronger case for
federal regulation since a potential impact on interstate commerce is
discernable, while possession of a firearm could be an entirely and
perpetually local activity in a given instance. Such an argument ignores the
aggregate effect on commerce of a substantial number of people possessing
firearms. In an analogous situation, regulation of the possession of narcotics
and other controlled substances under 21 U.S.C. [sections] 841 and 844, and
predecessor statutes, courts have upheld the regulation without a showing in
each case of a nexus with interstate commerce.

  In Deyo v. United States,34 for example, the Ninth Circuit affirmed a
conviction for possession and sale of a drug against the contention of the
defendant that the conviction was invalid because there had been no proof of a
connection between the defendant's activities and interstate commerce. The
court described at length the congressional findings supporting federal
control of the possession of these drugs. The court concluded that effective
interstate regulation was not possible if intrastate transactions were not
also regulated.35

  The conclusion to be drawn from the narcotics possession cases is that if it
can be shown through proper congressional findings that possession of handguns
as a class of activity has an effect on interstate commerce, then individual
possession could be legitimately proscribed without any showing in each case
of a nexus with interstate commerce, notwithstanding that a particular weapon
had never been in interstate commerce. Indeed it is the possession of handguns
that can be viewed as being responsible for their manufacture, importation and
sale. Thus, if undertaken after congressional findings of effect on interstate
commerce based on substantial investigation, federal legislation banning the
manufacture, sale and possession of handguns would in our view be authorized
by the commerce clause.

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