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[The printed version of this article appears in the 1998
volume of the BYU Law Review, beginning at page 1359.]
The Second Amendment in the
Nineteenth Century
David B. Kopel(*)
I. Introduction 1362
II. The Early Giants: Tucker, Rawle,
and Story 1370
A. St. George Tucker:
The American Blackstone 1370
1. Tucker's background 1370
2. The central role of Tucker's American
Blackstone 1371
3. Tucker on the right to arms in Blackstone 1373
4. Tucker's appendix on the American Constitution
1375
5. Tucker's exposition of the Second Amendment
1377
B. Houston v. Moore 1379
C. William Rawle 1384
D. Joseph Story 1388
1. The Second Amendment in Story's Commentaries
1389
2. The Second Amendment in Story's Familiar
Exposition 1393
3. The federal militia powers in Story's
Commentaries 1396
E. Other
Pre-1850 Sources 1397
1. Henry St.
George Tucker 1397
2. Benjamin Oliver 1399
3. James Bayard 1400
4. Francis Lieber 1402
5. Elliot's Debates 1404
6. Webster's Dictionary
1404
III. State Constitutions and Case Law
1409
A. State
Constitutions 1409
B. State Case Law
1415
1. Tennessee 1416
2. Arkansas 1422
3. Georgia 1425
4. Louisiana 1427
5. North Carolina
1428
6. Texas 1429
7. Illinois 1431
8. West Virginia
1432
9. State case
law summary 1432
IV. Antebellum Years and the Civil War
1433
A. Dred Scott 1433
B. The Human
Rights Advocates 1435
1. Lysander Spooner 1436
2. Joel Tiffany 1440
C. Bloody Kansas
1441
D. The Civil War 1444
V. Reconstruction and Labor Unrest
1447
A. Congress, Civil Rights,
and the Fourteenth Amendment 1447
1. The Freedmen's
Bureau 1447
2. Southern
representation in Congress 1449
3. Civil Rights Bill
1450
4. Anti-KKK Act 1451
5. Fourteenth
Amendment 1451
6. Civil
Rights Act of 1875 1453
7.
Summary of Congressional policy 1453
B. Cruikshank 1454
C. Presser 1459
VI. Commentary from the Late 19th
Century: Cooley and Others 1461
A. Thomas Cooley 1461
1. A Treatise on Constitutional Limitations 1462
2. The General Principles of Constitutional Law
1464
B. The Lesser
Commentators 1468
1. Joel Tiffany
1469
2. Timothy Farrar 1470
3. George W. Paschal 1472
4. Joel Bishop 1474
5. John Norton Pomeroy
1476
6. Oliver Wendell Holmes, Jr.,
and James Kent 1479
7. Editions of Blackstone
1482
8. Theophilus Parsons 1483
9. A foreigner's vantage: von
Holst 1484
10. John Hare 1485
11. George Ticknor Curtis
1486
12. John C. Ordronaux
1488
13. Samuel Freeman Miller and
J.C. Bancroft Davis 1490
14. Henry Campbell Black 1493
15. George S. Boutwell
1494
16. James Schouler 1496
17. Home schooling
1498
18. Civics
manuals for youth 1498
19. John Randolph
Tucker 1501
C. Law Review
Articles 1503
D. Summary of the Late
Nineteenth Century Commentators 1505
VII. Fin-de-Siècle and
Beyond 1506
A. The Supreme Court
1506
1. Miller v. Texas
1506
2. Robertson
v. Baldwin 1509
B. The Collective Right
Establishes a Footing: Salina v. Blaksley 1510
C.
Late Twentieth Century Commentators 1512
1. Some thoughts about David
Williams 1512
2. Some thoughts about Carl Bogus
1515
D. Firearms Policy for the
Twenty-first Century 1530
1. Who is protected by
the Second Amendment? 1530
2. Does
the Second Amendment limit the states? 1530
3. What
kind of "arms"? 1531
4. Can the carrying of
weapons be controlled? 1535
5. Repealing or
ignoring the Second Amendment 1536
6. The First Amendment
1538
7. The
illegality of most federal gun laws 1541
VIII. Conclusion
1544
I. Introduction
Despite the animosity that sometimes divides advocates and
opponents of gun control, they share one important characteristic: almost unanimously,
they are constitutional originalists. Persons who believe that the Second Amendment
guarantees a right of individual Americans to own and carry guns claim that the original
intent of the Second Amendment was for an individual right. Conversely, persons who
believe that the Second Amendment only guarantees the right of state governments to have
National Guard (militia) units argue that the original intent supports their own position.
Both sides of the debate cite material from the period
when the Constitution and the Bill of Rights were ratified and debated. Both sides also
cite materials from English legal history. But surprisingly, neither side has paid
significant attention to the interpretive community which first applied the Second
Amendment: the United States in the nineteenth century. During that century, the Second
Amendment's right to keep and bear arms was discussed in many legal treatises, in
Congressional debates, in six Supreme Court cases, in numerous state court cases, and in
other legal materials. Yet, except for two of the Supreme Court cases, the history of the
Second Amendment in the nineteenth century has been only lightly touched by legal
scholarship.
In modern legal scholarship, the "Standard
Model" of the Second Amendment maintains that individual Americans have a right to
own guns.(1)
Standard Modelers differ among themselves over the types
of guns which may be kept, the breadth of purposes for which the right to keep a gun is
protected, and the permissible restrictions on the "bearing" of arms.
Competing with the Standard Model in the late twentieth
century are what this article terms the "anti-individual" theories. The name is
appropriate because these theories are linked by their common attempt to show that an
individual American citizen has no right to own a gun. The leading anti-individual
theorist is Handgun Control's attorney Dennis Henigan, who argues that the Second
Amendment protects the state governments' right to be free from federal interference with
their militias.(2) According to this view, the Second
Amendment limits the Congressional militia powers created by Article I of the
Constitution, although Henigan and other states' rights supporters have not specified what
those limitations are.(3) But if states' rights theorists
are unclear about what the Second Amendment does, they are emphatic about what it does not
do: "since privately-owned weapons are no longer used to arm citizen militias, as
they were in colonial times, the regulation of such arms should face no Second Amendment
barrier."(4)
Another major anti-individual theory might be called the
"nihilist Second Amendment." Offered by Garry Wills, this theory argues that the
Second Amendment "had no real meaning."(5)
According to Wills, only "wacky scholars" and their dupes believe that the
Second Amendment affirms a right of individuals to own firearms for protection against
tyranny.(6) Evidently, James Madison played a clever trick
on the entire United States and wrote an Amendment which amounts to nothing at all. In the
period between Madison and Wills, however, no one else seems to have discovered this
shrewd ploy.(7)
The term "collective rights" is sometimes used
in connection with these anti-individual interpretations of the Second Amendment to
indicate a right that belongs to the people collectively (like "collective
property" under a Communist government), rather than to any individual, and
therefore belongs to the government. Some "collective rights" proponents adhere
to a states' rights version Second Amendment, while others propound the nihilist approach.
David Williams offers a third variant on the
"anti-individual" approach in a series of innovative articles. First, he acknowledges that the Second Amendment was intended to preserve the ability of all
"the people" to have guns and to know how to use them to maintain order and
resist tyranny.(8) But, continues Williams, the Second
Amendment is operative only as long as the American people are like "the people"
contemplated in the republican theory of the Second Amendment: virtuous, unified,
homogenous, imbued with a shared vision of the common good, and trained by their state
governments in the use of firearms. Since the American people no longer fit the
description of "the people" implicit in the Second Amendment, the argument goes,
the Second Amendment is obsolete and of no legal effect. Because Williams's theory is an
argument about changed circumstances in the twentieth century, analysis of nineteenth
century sources cannot resolve all the issues he raises. But the nineteenth century does
provide a good test case for Williams's theory of the Second Amendment. During the period
before and after the Civil War, Americans were more disunited, more distrustful of each
other, and more thoroughly polarized in their competing visions of the common good than at
any other time in American history. It is useful to examine what became of the Second
Amendment during these decades when the people of the United States fell far away from
Williams's ideal.
The various factions in the modern Second Amendment debate
share another trait: they insist that their own interpretation has always been the common
understanding of the Second Amendment. The contrary viewpoint, each insists, is a modern
fiction, invented by the other faction, and having no support in American legal history.
For example, the late Warren Burger, after retiring from the Supreme Court, participated
in an advertising campaign for Handgun Control. The former Justice informed Americans that
the notion of the Second Amendment as an individual right is a "fraud"
perpetrated by the National Rifle Association.(9) The
late Erwin Griswold, former Solicitor General of the United States, former Dean of Harvard
Law School, and member of the Board of Handgun Control, wrote "that the Second
Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition
in American constitutional law."(10) Similarly, the
Coalition to Stop Gun Violence (the nation's second largest antigun group, next to Handgun
Control) informs us that the notion of the Second Amendment as a barrier to gun
prohibition is a "myth."(11) The Coalition's
educational arm recommends a recent law review article which, instead of the word
"myth," uses words such as "deception," "constitutional false
consciousness," "fake," "intentional deception,"
"fictional," "bogus," and "constitutional charade." The
article further accuses law professors holding contrary views of deliberate fraud.(12)
If Chief Justice Burger and the rest are right, then we
should expect that legal materials of the nineteenth century would clearly support their
claim. In the period before the founding of the National Rifle Association in 1871, we
should not expect to find assertions that the Second Amendment is an individual right.
This article lets the nineteenth century legal community
speak for itself by dealing with the treatises and cases--what Duncan Kennedy calls
"the mandarin materials"(13)--of the nineteenth
century, as well as Congressional and political debates. Newspaper articles, novels, and
other mass entertainment materials are not discussed. There is a great deal to learn from
what the nineteenth century had to say about the Second Amendment. Most importantly, we
can resolve whether the Second Amendment has historically been considered to protect an
individual right. Additionally, an examination of the Second Amendment in the nineteenth
century provides useful guidance about what types of gun control are constitutionally
permissible.
Part II of this article analyzes the Second Amendment
scholarship of the three great constitutional treatises of early nineteenth century--St.
George Tucker's American Blackstone, William Rawle's A View of the
Constitution of the United States of America, and Joseph Story's Commentaries on
the Constitution of the United States--as well as some lesser commentators from the
1830s, 1840s, and 1850s. Part II also includes a study of Justice Story's dicta about the
Second Amendment in the 1820 case Houston v. Moore.
Part III addresses nineteenth century state constitutions
and state case law regarding the right to arms. These constitutional texts and their
judicial interpretation offer valuable insights into the meaning of the Second Amendment.
The Civil War is the subject of Part IV, which discusses Dred
Scott, the writings of anti-slavery human rights activists, and the confiscations of
arms before and during the War. Part V deals with the aftermath of the Civil War,
including Congressional debates about the infringements by unreconstructed Southern states
of the freedmen's right to arms; the Fourteenth Amendment; and the Supreme Court's Cruikshank
decision. Part V concludes with a discussion of the growth in labor unrest, restrictive
gun laws aimed at labor agitators, and the Supreme Court's Presser decision.
Scholarly commentators of the later nineteenth century are
the subject of Part VI. Thomas Cooley is the giant of this period, but there were also
more than a dozen other constitutional treatises from the period, as well as the first law
review articles on the right to arms.
Part VII brings the article to the fin-de-siècle,
by looking at two Supreme Court cases mentioning the Second Amendment in dicta; it also
peeks ahead into the early twentieth century at the most important Second Amendment
"states' right" ruling--t he Kansas case of Salina v. Blaksley. Part
VII also examines the implications that the nineteenth century records have for modern
firearms policy, and for the scholarship of David Williams and Carl Bogus.
The Conclusion discusses which modes of the Second
Amendment analysis are plausible and which modes are implausible in light of the nineteenth
century's Second Amendment interpretation.
II. The Early Giants:
Tucker, Rawle, and Story
Part II of this article examines the treatment of the
Second Amendment in the first third of the nineteenth century by the three major legal
commentators of the era: St. George Tucker, William Rawle, and Joseph Story. This Part
also discusses the Supreme Court's first Second Amendment case, the virtually unknown 1820
Houston v. Moore. The Part concludes with discussion of other commentators from
the 1830s through the 1850s.
The first scholarly analysis of the Second Amendment is
found in St. George Tucker's American edition of Blackstone's Commentaries,
published in 1803.(14)
1. Tucker's background
The law practice of this young Virginia attorney was
interrupted by the American Revolution. St. George Tucker threw himself into the cause
enthusiastically, heading up a gun-running operation in which his four small ships sent
indigo to the West Indies and Bermuda in exchange for firearms for the Patriots.(15) Acclaimed as "one of the great war heroes of
Virginia," Tucker was chosen as head of Virginia's delegation to the Annapolis
Convention (the precursor to the Philadelphia Convention).(16)
There, he served on a commission with James Madison to meet with state officials and
determine to what degree the federal government should have the authority to create
uniform rules to facilitate interstate commerce.(17)
"[O]ne of the most eminent of Virginia lawyers,"(18) Tucker taught law at William and Mary from 1790 until
1804, when he was appointed a judge of Virginia's High Court of Appeals.(19)
He was also "perhaps the most ardent advocate of emancipation in Virginia in the
1790s,"(20) calling it his "dearest wish."(21) President Madison appointed Tucker to the federal bench
for Virginia in 1813, where he served until his death in 1827.(22)
2. The central role of Tucker's American
Blackstone
Tucker's annotated edition of Blackstone quickly
became known as the American Blackstone.(23) It
was the first treatise on common law written for the needs and conditions of the American
legal profession. The treatise consisted of Blackstone's four original volumes, annotated
by Tucker, plus numerous appendices on American law and the Constitution. The
"five-volume [work] was the standard work on American law for a generation ."(24) Almost every prospective lawyer began his studies by
reading Tucker's Blackstone, and some lawyers may never have read anything else.(25) Thomas Jefferson recommended Tucker's Blackstone
as part of the course of study for aspiring law students, since the Tucker book was the
best source for overall mastery of American law.(26)
Before the publication of Chancellor Kent 's Commentaries in the late 1820s,
"Tucker's [Blackstone] was the only treatise on American law available in
the nation. Until 1827, Tucker was the most frequently cited American legal scholar . . . ."(27) In short,
Tucker's Blackstone is "generally considered the single most important early
legal text created by an American scholar."(28)
Alfred Brophy observes: "When Americans set out to
remold law books for use in America, as Henry [sic] St. George Tucker did in 1803 with
Blackstone's Commentaries, their results are extraordinarily illuminating about
both the mind of Americans and the state of American law."(29)
Tucker did not intend merely to reprint Blackstone; he wanted to show how
Blackstone's version of the common law had been changed--in the direction of significantly
greater civil liberty--by developments in America, especially the ratification of the
Constitution and Bill of Rights.(30)
3. Tucker on the right to arms in Blackstone
The second volume of Tucker's American Blackstone
contains Blackstone's commentary on what Blackstone called the five "auxiliary
rights of the subject."(31) These were rights (such
as the right to seek legal redress in court, and the right to petition) whose main purpose
was to safeguard primary rights.(32) Blackstone had
written:
The fifth and last auxiliary right of the
subject, that I shall at present mention, is that of having arms for their defence[fn4 0]
suitable to their condition and degree, and such as are allowed by law[fn41]. Which is
also declared by the same statute 1 W. & M. st. 2 c. 2, and it is indeed, a public
allowance under due restrictions, of the natural rights of resistance and
self-preservation, when the sanctions of society and laws are found insufficient to
restrain the violence of oppression.(33)
Blackstone was explaining the English Bill of Rights,
which provided: "That the subjects which are protestants, may have arms for their
defence suitable to their conditions, and as allowed by law."(34)
Tucker added his own analysis in two footnotes:
[fn40] The right of the people to keep and bear
arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any
qualification as to their condition or degree, as is the case in the British government.(35)
[fn41] Whoever examines the forest, and game
laws in the British code, will readily perceive that the right of keeping arms is
effectually taken away from the people of England. The commentator himself informs us,
Vol. II, p. 412, "that the prevention of popular insurrections and resistence to
government by disarming the bulk of the people, is a reason oftener meant than avowed by
the makers of the forest and game laws ."(36)
Tucker's footnote 40 echoed the language of the Second
Amendment. He distinguished the American right to arms from its British antecedent by
noting that the American right had none of the limitations that were contained in the
British right. Tucker 's criticism of the English Bill of Rights paralleled Madison's
criticisms in a speech to Congress introducing the Bill of Rights.(37)
Tucker's footnote 41 quoted Blackstone's description of
the English game laws, with their restriction on the ownership of hunting weapons as
having the covert intent of disarming the non-aristocratic population. In his commentary
on the game laws section of Blackstone, Tucker added his own condemnation of
British practice, contrasting it with the robust right to arms in America:
The bill of rights, 1 W. and M, says Mr.
Blackstone, (Vol. 1 p. 143,) secures to the subjects of England the right of having arms
for their defence, suitable to their condition and degree. In the construction of
these game laws it seems to be held, that no person who is not qualified according to law
to kill game, hath any right to keep a gun in his house. Now, as no person, (except the
game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless
he has 100l. per annum, &c. it follows that no others can keep a gun for
their defence; so that the whole nation are completely dis arme d, and left at the mercy
of the government, under the pretext of preserving the breed of hares and partridges, for
the exclusive use of the independent country gentlemen. In America we may reasonably hope
that the people will never cease to regard the right of keeping and bearing arms as the
surest pledge of their liberty.(38)
In fact, Tucker was wrong in his dire description of
England; after the overthrow of the Stuarts in 1689, the game laws were no longer used to
disarm the common people. The law presumed that a commoner's gun was intended for
self-defense (a right guaranteed by the 1689 Bill of Rights), unless the circumstances
showed that the gun was used for unlawful hunting.(39) But
more important than whether Tucker accurately understood English circumstances is what his
widely read treatise shows about the state of American law. Tucker's remarks unambiguously
described "the right of keeping and bearing arms as the surest pledge of . . .
liberty."(40)
4. Tucker's appendix on the American Constitution
Tucker's American Blackstone contained several
appendices, including a lengthy appendix analyzing the new American Constitution. This
appendix was "the first disquisition upon the character and interpretation of the
Federal Constitution, as well as upon its origin and true nature,"(41)
and was used as a legal textbook for many decades throughout the United States.(42)
Tucker's constitutional analysis remains powerful in
modern times. For example, Tucker was the first scholar to argue that the First Amendment
advanced far beyond English common law freedom of press. While freedom of press in England
meant only freedom from prior restraints, Tucker argued that the First Amendment
left
Congress with no power at all to punish newspapers, even after the fact.(43)
Justice Hugo Black later observed that Tucker 's appendix set forth "the general view
held when the First Amendment was adopted and ever since."(44)
Justice Black was right to cite Tucker as the definitive
source for original intent. "While Tucker published his [American] edition of
Blackstone in 1803, he began writing it in 1790, as he prepared lectures for his courses
at William and Mary. The ideas and arguments in his volumes are thus perhaps as
contemporaneous to the Founding as it is possible to find."(45)
Because "[g]reat weight has always been attached, and
very rightly attached, to contemporaneous exposition,"(46)
the Supreme Court has cited Tucker in over forty cases. One can find Tucker in the major
cases of virtually every Supreme Court era. In the early nineteenth century Tucker is
cited in Fletcher v. Peck,(47) Dartmouth
College,(48) Gibbons v. Ogden,(49) Charles River Bridge,(50)
and Dred Scott;(51) later in the nineteenth
century Tucker appears in the Slaughter-house Cases,(52)
Spies v. Illinois(53)(the Haymarket case), and Pollock
v. Farmers' Loan and Trust Co.(54) (income
tax). Tucker also appears in Dennis v. United States,(55)
New York Times v. Sullivan,(56) Harmelin v.
Michigan,(57) and U.S. Term Limits v. Thornton,(58) in the twentieth century.(59)
5. Tucker's exposition of the Second Amendment
Although Tucker had addressed the Second Amendment in his
footnotes to Blackstone, the constitutional appendix gave Tucker the opportunity
for a fuller exposition:
This may be considered as the true palladium of
liberty(60) . . . . The right of
self defence is the first law of nature: in most governments it has been the study of
rulers to confine this right within the narrowest limits possible. Wherever standing
armies are kept up, and the right of the people to keep and bear arms is, under any colour
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: a never failing lure to bring over the landed aristocracy
to support any measure, under that mask, though calculated for very different purposes.
True it is, their bill of rights seems at first view to counteract this policy: but the
right of bearing arms is confined to protestants, and the words suitable to their
condition and degree, have been interpreted to authorise the prohibition of keeping a gun
or other engine for the destruction of game, to any farmer, or inferior tradesman, or
other person not qualified to kill game. So that not one man in five hundred can keep a
gun in his house without being subject to a penalty.(61)
Besides asserting that the Second Amendment upholds an
individual right essential for liberty, Tucker also argued that even without the Second
Amendment, Congress could not disarm "any person" because disarmament could
never be "necessary and proper":(62)
If, for example, congress were to pass a law
prohibiting any person from bearing arms, as a means of preventing insurrections, the
judicial courts, under the construction of the words necessary and proper, here contended
for, would be able to pronounce decidedly upon the constitutionality of these means.(63)
Tucker continued his reasoning, using the example of
Congressional disarmament as an illustration for the necessity of judicial power to
declare laws unconstitutional.(64)
St. George Tucker appears regularly in Standard Model
articles discussing the Second Amendment.(65) It is
perhaps significant that none of the anti-individual writers even admit Tucker 's
existence, let alone attempt to address the meaning of the most important law book of the
Early Republic.
Suppose that the gun prohibition lobbies' claims were
correct and the Second Amendment plainly guaranteed only a state 's right to raise a
militia. If such were the case, it is indeed strange that not one of the architects of
the Constitution offered any objection to St. George Tucker. Most of the framers of the
Constitution, including Madison, were alive in 1803 and actively engaged in public
affairs. Many were lawyers, and it would have been difficult for them to fail to notice
the leading lawyer's book in the United States. Tucker presents an interpretation of the
Second Amendment that the anti-individualists would find wrong in every respect: the right
is individual, not a state's right; it belongs to everyone, not just militia members; its
purposes include defense against tyranny and hunting. And yet, not one of the framers
stepped forward to correct Tucker's flagitious misunderstanding of the Second Amendment.
Is it reasonable to infer that Tucker--far from grossly misunderstanding the Second
Amendment--was merely restating a universal under standing?(66)
Might Madison's opinion of Tucker's legal scholarship be inferred from Madison's
appointment of Tucker to the Federal bench in 1813?
The War of 1812 was unpopular in the Northeast, and many
people resisted orders to muster for militia service. Houston v. Moore grew out
of a prosecution under Pennsylvania law for failure to perform federal militia duty.(67)
In 1814, the Pennsylvania legislature enacted a bill
providing that "every non-commissioned officer and private of the militia who shall
have neglected or refused to serve when called into actual service" by the President
should be punished according to the terms of the federal militia law of 1795. The
Pennsylvania law specified that persons accused of violating the law would be tried by a
state court-martial.(68)
On July 4, 1814, President Madison, acting through the
Secretary of War, told the Governor of Pennsylvania to supply militiamen for service in
the war against Great Britain. The Pennsylvania militia was to be sent to guard Baltimore
and the Delaware River against expected British attack. (Napoleon's recent defeats in
Europe had freed the main force of the British army for war against the United States.)
Houston refused to serve, was eventually tried by a state
court-martial, and fined. He sued in state court to have his fine overturned, lost, and
eventually brought the case to the United States Supreme Court.
Houston argued that the Pennsylvania law was
unconstitutional because Article I, Section 8, Clauses 15 and 16 of the Constitution make
Congress the authority over the militia. Clause 15 gives Congress the power "To
provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions."(69)
Clause 16 gives Congress the power "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 Unit d 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."(70)
Houston's lawyer reasoned that the Congressional power over the national militia is
plenary and, therefore, states could not legislate on the subject.
Pennsylvania's lawyers responded that Congressional power
over the militia was concurrent with state power, not exclusive. They pointed to the Tenth
Amendment, which reserves to states all powers not granted to the federal government.(71) Further, they said, the Pennsylvania statute punishing
militia resisters was consistent with the similar federal statute punishing resisters.(72)
The Supreme Court's opinion was delivered by Justice Bushrod Washington, a nephew of George Washington. Justice Washington concluded that, as a
general principle, federal legislation regarding the militia was exclusive. Since Congress
had enacted a law punishing militia resisters, the states could not enact their own laws
about militia resisters.(73)
But, continued Justice Washington, the instant case was
different. Here, the question was whether a Pennsylvania court-martial could enforce the federal
law. Yes, answered Justice Washington, since the Congressional law creating federal
court-martials for militia resisters did not forbid states from enforcing the federal law.
And the Pennsylvania statute did not create a new law, but merely enforced the federal
one.(74) Thus, the Pennsylvania conviction was upheld.(75)
Justice William Johnson agreed with the result, but wrote
a separate opinion explaining his reasoning.(76) Analyzing
both the federal militia law and the particular militia order to which Houston had been
subject, Justice Johnson concluded that Houston could not be prosecuted by the federal
government for violating the federal militia law. Accordingly, Houston's prosecution by
Pennsylvania did not interfere with any federal powers.(77)
Justice Johnson's opinion treated the Fifth Amendment double jeopardy clause as
enforceable against the state of Pennsylvania; his opinion was the foundation of
nineteenth century argument that, Barron v. Baltimore(78)
notwithstanding, the Bill of Rights did apply to the states.
Justice Joseph Story dissented.(79)
Because Congress had enacted extensive militia legislation, including legislation
punishing militia resisters, its authority was exclusive.(80)
A state could not legislate with regard to militia resisters. Federal militia control
began when the President called forth the militia, not when the militiamen mustered at the
rendezvous spot.(81)
Part of Justice Story's dissenting opinion addressed a
hypothetical: What if Congress, instead of exercising its constitutional power over the
militia, neglected the militia? In case of Congressional inaction, wrote Justice Story,
the states could act:
If, therefore, the present case turned upon the
question, whether a State might organize, arm, and discipline its own militia in the
absence of, or subordinate to, the regulations of Congress, I am certainly not prepared to
deny the legitimacy of such an exercise of authority. It does not seem repugnant in its
nature to the grant of a like paramount authority to Congress; and if not, then it is
retained by the States. The fifth [sic] amendment to the constitution, declaring that
"a well regulated militia being necessary to the security of a free Stat e, the right
of the people to keep and bear arms shall not be infringed," may not, perhaps, be
thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.(82)
Justice Story's hypothetical, fifty-two pages into the
case, marks the first appearance of the Second Amendment in Supreme Court jurisprudence.
Justice Story's main point was that the state exercise of militia power would not be
inconsistent with Congressional militia power, since (hypothetically) Congress would be
ignoring the militia.(83) After conceding that the Second
Amendment (dubbed the "fifth" amendment in a typo) was probably irrelevant,
Justice Story suggested that to the extent the Second Amendment was relevant, it supported
his position. Justice Story's point was not unreasonable. The entire Bill of Rights, after
all, was animated by fear of federal abuse, and several of the Anti-Federalists raised
concerns that the federal government might totally neglect the militia and thereby render
it useless.(84)
The leading scholar of anti-individual Second Amendment
interpretation, Dennis Henigan, argues that the Second Amendment, rather than guaranteeing
an individual right, limits some of the federal powers over the militia granted by Article
I, Section 8.(85) If Henigan's theory were true--if the
Second Amendment were a guarantee of state control over the militia--then the Second
Amendment should have been at the center of Houston v. Moore. The
precise issue in the case was Pennsylvania's assertion of authority over the militia.
Under the state power theory of the Second Amendment, the strongest argument that
Pennsylvania's attorneys could have made would have been to point to the Second Amendment.
But the Second Amendment never entered their arguments.(86)
If the Second Amendment were understood as a right of state governments against federal
control of the militia, then the total absence of the Second Amendment in the reasoning
of the state's attorneys and the pro-state Justices is inexplicable.
Justice Story's dissent is incongruent with Henigan's
theory that the Second Amendment somehow reduces Congress's militia powers. In the
paragraph following the Second Amendment hypothetical, Justice Story affirmed that
whenever Congress is actually exercising its Article I powers over the militia, the power
of Congress is exclusive, and there is no room for any state control, "however
small."(87)
Like the writings of St. George Tucker, the Houston v.
Moore decision is absent from the anti-individual articles. Unlike the American
Blackstone, the 1820 Houston case is not contemporaneous with the creation of the
Second Amendment, but neither is it far removed from the founding era. And the
implications of the case are just as inconsistent with the anti-individual theories of the
Second Amendment as are the direct statements made by St. George Tucker.
C. William Rawle
Supplanting Tucker's Blackstone as the leading
American constitutional treatise was William Rawle's 1825 A View of the Constitution
of the United States of America.(88) A View of
the Constitution was used, among other places, at the United States Military Academy
at West Point.(89) The treatise enjoyed sufficient
popularity for there to be a second edition, and there would have been a third had Rawle
not passed away in 1836.(90)
Like Tucker, Rawle was a distinguished attorney long
before he became an "influential treatise writer."(91)
Elected to the Pennsylvania legislature in 1789, Rawle declined George Washington's
repeated offers to serve as the first Attorney General.(92)
Rawle accepted Washington's appointment as United States Attorney for Pennsylvania,
however, and held the post from 1792 to 1800.(93) A
prodigious scholar, Rawle authored many law books in addition to his constitutional
treatise, although the treatise is the only one that remains in print today. "[O]ne
of the most respected lawyers of the day,"(94) he
also founded Rawle & Henderson, which is now the oldest law firm in the United States.(95)
Rawle described the Second Amendment at length:
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. That they should be well regulated, is judiciously added. A
disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its
own country. The duty of the state government is, to adopt such regulations as will tend
to make good soldiers with the least interruptions of the ordinary and useful occupations
of civil life. In this all the Union has a strong and visible interest.
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
pretence by a state legislature. But if by any blind pursuit of inordinate power, either
should attempt it, this amendment may be appealed to as a restraint on both.
In most of the countries of Europe, this right
does not seem to be denied, although it is allowed more or less sparingly, according to
circumstances. In England, a country which boasts so much of its freedom, the right was
secured to protestant subjects only, on the revolution of 1688; and it is cautiously
described to be that of bearing arms for their defence, "suitable to their
conditions, and as allowed by law." An arbitrary code for the preservation of game in
that country has long disgraced them. A very small proportion of the people being
permitted to kill it, though for their own subsistence; a gun or other instrument, used
for that purpose by an unqualified person, may be seized or forfeited. Blackstone, in whom
we regret that we cannot always trace the expanded principles of rational liberty,
observes however, on this subject, that the prevention of popular insurrections and
resistance to government by disarming the people, is oftener meant than avowed, by makers
of forest and game laws.
This right ought not, however, in any
government, to be abused to the disturbance of the public peace.
An assemblage of persons with arms, for an
unlawful purpose, is an indictable offense, and even the carrying of arms abroad by a
single individual, attended with circumstances giving just reason to fear that he purposes
to make an unlawful use of them, would be sufficient cause to require him to give surety
of the peace. If he refused he would be liable for imprisonment.(96)
Rawle's analysis of federal powers over the militia noted
the value of widespread arms ownership to a good militia:
In a people permitted and accustomed to bear
arms, we have the rudiments of a militia, which properly consists of armed citizens,
divided into military bands, and instructed at least in part in the use of arms for the
purposes of war. Their civil occupations are not relinquished, except while they are
actually in the field, and the inconvenience of withdrawing them from their accustomed
labors, abridges the time required for military instruction. [Rawle then explicated how
standing armies, with their stronger habits of obedience, usually prove superior to
militias in the field.]
. . . .
But notwithstanding their inferiority to
soldiers schooled and practised in the field, gallant actions have been per formed by our
militia collectively. The capture of an entire army under General Burgoyne in 1777, and
the celebrated defence of New Orleans in 1814, were chiefly effected by militia.
But however inferior in military estimate to
armies regularly trained, the militia constitutes one of the great bulwarks of the nation,
and nothing which tends to improve and support it should be neglected.(97)
Rawle discussed Houston v. Moore and argued
strongly against the "states' rights" position on this issue; he suggested that
federal determination of the necessity of a militia call-up was unreviewable by state
governments or by the courts.(98)
Rawle's high regard for the militia was typical of his
time. He clearly explained that the Second Amendment does not protect only potential
militia members, for "[t]he prohibition is general."(99)
(Thomas Cooley's treatise, half a century later, would echo Rawle on the Second Amendment,
stating "The Right is General."(100))
Writing long before Barron v. Baltimore refused
to enforce the Bill of Rights against the states,(101)
Rawle considered the Second Amendment a limit on state and federal disarmament of the
people. And writing a century and a half before the Congressional power "to regulate
commerce . . . among the several States" was construed as a power to
ban the simple intrastate possession of firearms,(102)
Rawle stated that, even putting the Second Amendment aside, Congress would have no power
to disarm the people.(103)
Like Tucker's Blackstone, Rawle's A View of the
Constitution is cited by the Standard Modelers,(104)
but is conspicuously absent from law review articles asserting that the Second Amendment
is not an individual right.(105)
The American Republic's next major constitutional treatise
was the 1833 Commentaries on the Constitution of the United States,(106) written by Joseph Story while teaching at the Harvard
Law School. Story was the dominant legal figure of pre-Civil War America.
No man ever was more steeped in the law,
intellectually and interpersonally. Professional study, the common element for bench and
bar, attained new levels with Story. He wrote nine important treatises, taught
at--virtually created--the Harvard Law School . . . .(107)
President Madison appointed Joseph Story to the Supreme
Court in 1811; at age 32, he was the youngest man ever nominated.(108)
He served on the United States Supreme Court until 1845. After John Marshall, no Justice
of the early Court is considered more influential on Supreme Court jurisprudence.
In 1840, Story authored an expanded version of the Commentaries,
and also wrote a popularized version, entitled Familiar Exposition of the Constitution
of the United States. Story's constitutional treatises differed in important ways
from their predecessors; he was far more enthusiastic about broad federal powers. Rawle
had explicated the authority of states to secede from the Union.(109)
But Story almost single-handedly created the doctrine of an indissoluble Union, a doctrine
which would carry the day intellectually in the North. Each of Story's treatises was
"a major success" and some were still in use in the twentieth century.(110)
1. The Second Amendment in Story's
Commentaries
Story's commentary on the Second Amendment would later be
quoted in numerous Standard Model law review articles. For example, the following Story
quotation appeared in Sanford Levinson 's 1989 article The Embarrassing Second
Amendment:
The right of the citizens to keep and bear arms
has justly been considered as the palladium of the liberties of a republic;(111) 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.(112)
In response to Levinson's quotation of Story in his
article, Dennis Henigan accuses Levinson of purposely omitting the remainder of Story's
passage, which states:(113)
And yet, though this truth would seem so clear,
and the importance of a well regulated militia would seem so undeniable, it cannot be
disguised that, among the American people, there is a growing indifference to any system
of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of
all regulations. How it is practicable to keep the people duly armed, without some
organization, it is difficult to see. There is certainly no small danger that indifference
may lead to disgust, and disgust to contempt; and thus gradually undermine all the
protection intended by this clause of our national bill of rights.(114)
However, nothing in the second part of the passage (quoted
by Henigan) changes the meaning in the first part (quoted by Levinson). In both parts,
Story sought to maintain militias as a counterweight to a standing army. He bemoaned the
declining interest of the people and their state governments in militia training. Nothing
Story said in the second through fourth sentences changes the meaning of Story's first
sentence, which asserts that the right to bear arms belongs not to state governments but
to "the citizens." The purpose of this right is to deter tyranny and allow
popular revolution to unseat a tyrant.
Henigan does some selective quoting of his own. While he
chastises Levinson for not quoting a footnote in which Story denounced standing armies,(115) Henigan omits two other Story footnotes(116) citing passages from Tucker and Rawle(117)
enthusiastically praising the wide scope of the individual right to keep and bear arms.(118)
The above passages from Justice Story were quoted by an
1871 Tennessee Supreme Court opinion as authority for the exact point that the Second
Amendment, in order to secure a militia, guarantees a general right of individuals to have
weapons.(119)
Story concluded by contrasting the strong right in America
with the weak one in England:
§ 1891. A similar provision in favour of
protestants (for to them it is confined) is to be found in the bill of rights of 1688, it
being declared, "that the subjects, which are protestants, may have arms for their
defence suitable to their condition, and as allowed by law." But under various
pretences the effect of this provision has been greatly narrowed; and it is at present in
England more nominal than real, as a defensive privilege.(120)
Here, Story closely tracked Madison's notes on the Second
Amendment, in which Madison contrasted the Second Amendment with the narrower English
right, the latter being unsatisfactory because it was confined to Protestants.(121)
2. The Second Amendment in Story's Familiar Exposition
Story's 1840 constitutional law book intended for a
popular audience, Familiar Exposition of the Constitution of the United States,
contains some Second Amendment material not found in the Commentaries. The Familiar
Exposition removes any possible doubt that Story saw the Second Amendment as
guaranteeing an important individual right:
The next amendment is, "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." One of the ordinary modes, by which
tyrants accomplish their purposes without resistance, is, by disarming the people, and
making it an offence to keep arms, and by substituting a regular army in the stead of a
resort to the militia. The friends of a free government cannot be too watchful, to
overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere
private convenience, this powerful check upon the designs of ambitious men.
The importance of this article will scarcely be
doubted by any persons, who have duly reflected upon the subject. The militia is the
natural defence 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 upon the rights of the people. The right of the citizens 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 it
will generally, even if these are successful in the first instance, enable the people to
resist and triumph over them. And yet, though this truth would seem so clear, and the
importance of a well-regulated militia would seem so undeniable, it cannot be disguised,
that among the American people there is a growing indifference to any system of militia
discipline, and a strong disposition, from a sense of its burdens, to be rid of all
regulations. How it is practicable to keep the people duly armed without some
organization, it is difficult to see. There is certainly no small danger, that
indifference may lead to disgust, and disgust to contempt; and thus gradually undermine
all the protection intended by this clause of our National Bill of Rights.(122)
Can any fair-minded reading of Justice Story support
Henigan's position that the federal government has the unquestioned constitutional
authority to outlaw the possession of firearms in the United States? Or would Story bemoan Henigan's organization--whose members were never required by their state governments to
possess arms and to learn how to use them in militia drill--as fulfilling Story's fears
"that indifference may lead to disgust, and disgust to contempt"?
One of Henigan's central errors is his
"either/or" view of the militia. Story saw the militia as a defense
"against . . . domestic insurrections."(123)
Henigan finds this insurrection-suppression view to be "itself inconsistent with the
notion that the militia is the armed citizenry poised to engage in domestic insurrection."(124) But Story also exulted that when
"citizens" are armed, they can resist usurpation; the right to bear arms allows
the "people to resist and triumph over" their oppressors. Indeed, Justice Story
explicitly promoted the dispersion of armed force in a society as facilitating needed
changes in government.(125) Nor was violent resistance to
tyranny an abstract notion to Story; his father had been one of the Indians in the Boston
Tea Party.(126) The notion that the American people could
be trusted both to suppress illegitimate insurrections and to overthrow tyranny
may seem self-contradictory to late twentieth-century American antigun lobbyists. But it
was an obvious truth to Justice Story.(127)
3. The federal militia powers in Story's Commentaries
Story's treatise also contained an extensive section on
the militia powers in Articles I and II of the Constitution.(128)
Story extolled the militia and explained that while the posse comitatus (the
able-bodied males of the county subject to the sheriff's call to enforce the law) would
suffice for maintaining law and order in most situations, there were some circumstances in
which either a militia or a standing army would be necessary.(129)
Story disparaged anti-federalist fears about granting
federal power over the militia. He noted that these fears "produced some propositions
of amendment in the state conventions, which, however, were never duly ratified, and have
long since ceased to be felt, as matters of general concern."(130)
Here, Story directly undermined Henigan's theory of the Second Amendment. Henigan claims
that the Second Amendment was a restraint on the federal government's militia powers.(131) Story claims that none of the proposals for
restrictions on federal militia powers were ever ratified.
Story then discussed in great detail the division of
federal and state powers over the militia. He suggested, "If congress did not choose
to arm, organize, or discipline the militia, there would be an inherent right in the
states to do it."(132) In support of this
proposition, Story cited Houston v. Moore, Rawle's treatise, Tucker's Blackstone,
and various portions of Elliot's De bates.(133)
While Story's dissent in Houston v. Moore had sug gested that the Second
Amendment, if relevant at all, would also support this proposition, Story did not in his Commentaries
cite the Second Amendment for support of state militia powers.
Story went on to define other state/federal militia
boundaries; he noted that when the militias were not in federal service, Congress had no
power to discipline and train them, such power being "exclusively vested in the
states."(134) For this proposition, Story cited
Federalist 29 and the Tucker and Rawle treatises (again, not parts dealing with the Second
Amendment).(135) The treatise continued for eight more
sections to discuss various state/federal militia issues, such as the power to call the
militia into service, to govern the militia, to court-martial, and to command the militia.
Never once did Story hint that the Second Amendment had any relevance to these issues.
If, as Henigan claims, Story read the Second Amendment the
way Henigan does, it is inexplicable how Story's treatise could minutely dissect the
boundaries of state/federal militia powers without once mentioning the Second Amendment.
The only plausible interpretation of Story's treatment of the militia in his Commentaries
is that proposed by the Standard Model of the Second Amendment, in which the Second
Amendment does not reduce the scope of the Congressional militia powers in Article I, or
the Presidential militia powers in Article II.
1. Henry St. George Tucker
Henry St. George Tucker was the son of St. George Tucker,
author of Tucker's Blackstone.(136) The younger Tucker
served as U.S. Representative from Virginia (1815-19), as President of the Virginia
Supreme Court,(137) and as law professor at the
University of Virginia (1841-45).(138) He declined
President Jackson's offer to serve as United States Attorney General.(139)
In 1831, he wrote a three volume treatise Commentaries on the Law of Virginia.(140) Although he followed Blackstone's organization, the
treatise was entirely Tucker's own, and it represented an important step forward in the
development of distinctly American law. This treatise "was standard fare for aspiring
lawyers"(141) and was "the primary reference
source for the bar of Virginia" until the Virginia Code was adopted in 1850.(142) Tucker had created the "vade mecum(143) of the bar of Virginia. . . . It was
recognized by the bar of Virginia, and in many of the Southern State s, as the most
valuable text-book for students and lawyers then in existence."(144)
Tucker's work "established the standard for American treatise writing, helped
organize American law, and provided access to it for attorneys distant from law
libraries."(145)
Explaining "the principal absolute rights of
individuals," Tucker wrote:
[C]ertain protections or barriers have been
erected which serve to maintain inviolate the three primary rights of personal security,
personal liberty, and private property. These may in America may be said to be:
1. The Bill of Rights and written
Constitutions . . . .
2. 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.
3. The right of applying to the courts of
justice for redress of injuries.(146)
Tucker continued, quoting Blackstone's formulation of the
English right to arms. Tucker added that this right "is secured with us by Am. C. U.
S. art. 4."(147) (Like some other writers of the
period, Tucker numbered the amendments as they were when sent to the states for
ratification by the first Congress.)
When human rights were violated, Tucker concluded, the
citizen was entitled first to justice in the courts, "next to the right of
petitioning for redress of grievances; and, lastly, to the right of having and using arms
for self-preservation and defence."(148) While all
of the rights Tucker described were "our birth right to enjoy entire," they
could be subject to "necessary restraints" which were "gentle and
moderate."(149)
2. Benjamin Oliver
Benjamin L. Oliver was "a writer of law books, a
noted chess player, and son of a former Governor of Massachusetts."(150)
His 1832 The Rights of an American Citizen contained a chapter entitled "Of
the rights reserved to the people of the United States; not being granted either to the
general government, or the state governments." This chapter explained the Second
Amendment "right of the citizens to bear arms" as making it possible for a
militia to combat invasion, insurrection, or usurpation.(151)
An 1822 Kentucky decision, Bliss v.
Commonwealth, interpreted the state's constitution to find a law against carrying
concealed weapons (the first American weapons control law of general applicability) to be
unconstitutional.(152) Oliver thought that carrying
concealed weapons, "if it is really unconstitutional to restrain it by law, ought to
be discountenanced," since concealment allowed an antagonist to surprise a victim.(153) Still, "[t]here are without doubt circumstances,
which may justify a man for going armed; as, if he has valuable property in his custody;
or, if he is traveling in a dangerous part of the country; or, if his life has been
threatened."(154)
3. James Bayard
James Bayard's A Brief Exposition of the Constitution
of the United States was intended as "a text-book for the instruction of
youth."(155) The book was adopted by some colleges
and seminaries and was praised by Chief Justice John Marshall, Justice Joseph Story,
Chancellor James Kent, "and other distinguished jurists," according to the
author.(156) The small book took the reader through the
Constitution clause by clause, offering short explanations of the meaning and background
of each provision.
Bayard wrote that the Second Amendment "secures the
right of the people to provide for their own defence."(157)
This short statement is not, in isolation, necessarily inconsistent with the Standard
Model or with the anti-individual theories. One could read the language, Standard
Model-style, as "the Amendment guarantees the pre-existing right of people to
protect them selves with arms." Or one could, with a little more effort, read
Bayard's language Henigan style: "the Amendment protects state governments from
federal interference, so that the people may be defended by state militias."
Any confusion arising from Bayard's terseness on the
Second Amendment is clarified by his discussion of the Third Amendment, which prohibits
quartering troops in private homes under most circumstances.(158)
Bayard detailed its historical back ground: "The people of this country, while under
the dominion of England, had felt too sensibly the evils arising from the want of
arms . . . not to take every precaution against their recurrence."(159)
Formally, Bayard's reference to "the evils arising
from the want of arms" makes no sense in a Third Amendment discussion. The Third
Amendment keeps soldiers out of homes, but does nothing to prevent "the want of
arms." Historically, however, the Second and Third Amendments were closely linked,
and they are placed next to each other because both were intended as checks against the
dangers of militaristic tyranny on the part of the central government. The disarmament of
individual citizens, the replacement of the militia by a standing army, and the abuses of
a standing army (including the forced quartering of soldiers in private homes) were
closely linked to the abuses of King Charles I, which precipitated the English Civil War,(160) whose history the Americans knew well--especially
since similar abuses helped precipitate the American Revolution. As the Founders also knew
from reading Montesquieu and others, the quartering of soldiers was one of the major
abuses perpetrated against the disarmed French Huguenots by Louis XIV in the 1690s.(161)
Thus, it was not unreasonable for Bayard to address the
problems of centralized militarism in one unified discussion. Knowing "the evils
arising from the want of arms," the Americans took "every precaution against
their recurrence," and it is therefore impossible to read Bayard as supporting
Henigan's theory that the federal government may constitutionally disarm the American
people.
4. Francis Lieber
One of the most important of America's early political
scientists was Francis Lieber, a German immigrant. He taught history, political science,
and public law at South Carolina College, Columbia College, and Columbia Law School. His
code of military conduct for land warfare, written for the Union Army during the Civil
War, later became part of the Geneva and Hague Conventions.(162)
Lieber's main contribution, however, was his analysis of how a society could create
complex institutional structures to promote civil liberty; the fullest exposition of his
political thought is found in his book On Civil Liberty and Self-Government,
first published in 1853.(163)
In the penultimate paragraph of a chapter discussing
control of standing armies and the Third Amendment, Lieber wrote:
Akin to the last-mentioned guarantee, is that
which secures to every citizen the right of possessing and bearing arms. Our constitution
says: "The right of the people to keep and bear arms shall not be infringed
upon;" and the [English] Bill of Rights secured this right to every protestant. It
extends now to every English subject. It will hardly be necessary to add, that laws
prohibiting secret weapons, or those which necessarily endanger the lives of the citizens,
are no infringement of liberty; on the contrary, liberty resting necessarily on law, and
lawful, that is, peaceful state of the citizens, liberty itself requires the suppression
of a return to force and violence among the citizens--a fact by no means sufficiently
weighed in recent times in America.(164)
Lieber recognized the individual right of "every
citizen" to bear arms; he did not even quote the militia clause of the Second
Amendment. Unlike Tucker, Rawle, and Story, who distinguished the broad American right to
arms from its feeble English ancestor, Lieber saw the English right as robust and
identical to the American right. (Lieber's general theme was to contrast the strong rights
in Anglo-American law with the weak or non-existent rights in France and the rest of
Europe.) The endorsement of concealed weapons control laws, followed by the complaint
about American attitudes, might reflect the fact that outside the Southeast and the state
of Indiana, there were no concealed weapons laws or any other sort of gun control at all.
And, as Lieber ruefully recognized, Americans were often too quick to resort to private
revenge, rather than to the judicial system.(165)
5. Elliot's Debates
Jonathan Elliot's 1836 compilation, The Debates in the
Several State Conventions on the Adoption of the Federal Constitution, is still the
major documentary source for its subject. Elliot 's "Digest of the Constitution"
indexed the various Constitutional provisions. Under the index heading "Rights
of the citizen declared to be--," there is a listing for "To keep and bear
arms," and other rights from the first nine amendments. In contrast, the Tenth
Amendment, unquestionably a "states' right," was not included in the heading
"Rights of the Citizen."(166)
6. Webster's Dictionary
The legitimacy of the American version of the English
language found its truest champion in Noah Webster. Webster's father served as a captain
on the "alarm list" of the militia near his Hartford farm,(167)
and the family strongly supported the Revolution. Noah Webster's first major work was the American
Spelling Book (1783), of which millions of copies were eventually printed. He
published his first dictionary in 1806, the Compendious Dictionary of the English
Language.(168) But his revered classic came in 1828,
the two-volume American Dictionary of the English Language.(169)
By examining the Second Amendment word-by-word, as defined by Webster, we see the meaning
of the Amendment's words in the nineteenth century.
"Regulated" meant "[a]djusted by rule,
method or forms; put in good order; subjected to rules or restrictions."(170) As Randy Barnett has observed in relation to the
Congressional power to "regulate" interstate commerce, to regulate something
means to make it more regular--not to prohibit it.(171)
"Militia" was
The body of soldiers in a state enrolled for
discipline, but not engaged in actual service except in emergencies; as distinguished from
regular troops, whose sole occupation is war or military service. The militia of a country
are the able bodied men organized into companies, regiments and brigades, with officers of
all grades, and required by law to attend military exercises on certain days only, but at
other times left to pursue their usual occupations.(172)
"Necessary" meant "indispensibly
requisite . . . ."(173)
"Security" was "[p]rotection; effectual
defense or safety from danger of any kind."(174)
"Free" meant "[i]n government, not
enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by
consent, and to a regular administration of such laws; not subject to the arbitrary will
of a sovereign or lord; as a free state, nation, or people."(175)
"State" meant
A political body, or body politic; the whole
body of people united under one government, whatever may be the form of
government. . . . More usually the word signifies a political body governed
by representatives . . . . In this sense, state has some
times more immediate reference to government, sometimes to the people or community.(176)
Thus, "state" is not just the
"government." The Second Amendment aims to protect the security of a free
American people, not just to protect their government.
"Right" was a "[j]ust claim; immunity;
privilege. All men have a right to secure enjoyment of life, liberty, personal
safety, liberty, and property. . . . Rights are natural, civil,
political, religious, personal, and public."(177)
"People" meant "[t]he body of persons who
compose a community, town, city or nation. We say, the people of a town; the people
of London or Paris; the English people."(178)
"Keep" was "[t]o hold; to retain in one's
power or possession."(179)
"Bear" meant firstly, "[t]o support; to
sustain; as, to bear a weight or burden"(180)--a
meaning that does not fit with the context of the Second Amendment. The second and third
meanings of "bear" are much more congruent, however: "To carry; to convey;
to support and remove from place to place" and "[t]o wear; to bear as a mark of
authority or distinction; as, to bear a sword, a badge, a name; to bear
arms in a coat."(181)
It is sometimes argued that "bear" has an
exclusively military connotation, so that the right to "bear" arms refers only
to bearing them in militia service.(182) But none of
Webster's definitions for bear contain such a narrow construction. And rather
significantly, we know that "bear" was used with a broad meaning in one of the
key documents that gave birth to the Second Amendment: the minority report from the
Pennsylvania ratifying convention. The minority demanded constitutional protection for the
right of the people "to bear arms for the defense of themselves and their own state,
or the United States, or for the purpose of killing game."(183)
Hunting--"killing game"--is obviously a personal, non-militia purpose for which
one could "bear arms."
Further, the state constitutions of Missouri (1820),
Indiana (1816), Ohio (1802), Kentucky (1792), and Pennsylvania (1776) all recognized a
right of citizens to "bear arms" in the "defense of themselves and the
state."(184) While arms-bearing for defense of
"the state" would be in a militia context, citizens bearing arms merely for
"defense of themselves" would merely be defending themselves against criminal
attack. Hence, the phrase "bear arms" did not connote that arms-bearing could
only occur while in active militia service.
In a 1998 case, the Supreme Court was called upon to
construe the meaning of the phrase "carries a firearm" in a mandatory sentencing
statute. While the majority opinion did not refer to the Second Amendment, Justice
Ginsburg, writing for four dissenters, used the Second Amendment to help explain the
phrase:
Surely a most familiar meaning is, as the
Constitution's Second Amendment ("keep and bear Arms") (emphasis added)
and Black's Law Dictionary, at 214, indicate: "wear, bear, or
carry . . . upon the person or in the clothing or in a pocket, for the
purpose . . . of being armed and ready for offensive or defensive action in
a case of conflict with another person."(185)
Justice Ginsburg's reading of the Second Amendment is thus
consistent with the reading suggested by Webster's Dictionary.
"Arms" meant "[w]eapons of offense, or
armor for defense and protection of the body . . . . A stand of
arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for
common soldiers a sword is not necessary."(186)
Webster's definition offers two useful insights. First, the distinction sometimes drawn
between "offensive" and "defensive" weapons is of little value. All
weapons are made for offense, although they may be used for defensive purposes (i.e.,
shooting someone who is attempting to perpetrate a murder).
Second, Webster's dictionary suggests that the
"arms" protected by the Second Amendment may include more than just weapons. The
Amendment may encompass "armor for defense and protection of the body." The
defensive aspect of arms would be relevant to legislative proposals to prohibit
non-government possession of bullet-resistant vests.
Finally, "infringed" meant "[b]roken,
violated, transgressed."(187)
How would the Second Amendment read if rephrased according
to Webster's dictionary?
The good order of able-bodied men required to
attend military exercises on certain days being indispensibly requisite to the protection
of a not-enslaved body politic, the just claim of the body of persons who compose the
United States to retain and wear weapons and armor shall not be violated.
While hardly as elegant as the Second Amendment, Webster's
dictionary does point us in the same direction as do the legal commentators who argue that
the militia (an essential institution of a free society) will only be effective as long as
the people are guaranteed the ownership of arms. In fact, Noah Webster himself, during the
ratification debates, provided a concise summary of why the entire population should be
armed:
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
pretence, raised in the United States.(188)
In sum, all of the pre-1850 sources analyzed
above--including the leading treatises, the lesser treatises, other books, and the Supreme
Court's Houston case--support the Standard Model approach to the Second
Amendment: the Amendment grants an individual right to bear arms.
III. State Constitutions
and Case Law
The nineteenth century was a fertile period for the right
to bear arms in state courts and in state constitutions. Many of these state sources
provide a good deal of useful information about how the Second Amendment was understood.
This Part discusses state constitutional texts first and then discusses state case law.
The purpose is not to comprehensively survey the nineteenth century arms rights cases,(189) but rather to survey state materials solely as they
may shed light on the federal Second Amendment.
The texts of nineteenth century state constitutions are
worth reviewing for several reasons. First, the large number of state provisions suggests
that the right to arms was considered an important human right. Of the thirty-six states
that were admitted or readmitted to the Union in the nineteenth century, twenty-eight
provided a right to arms provision in their state constitution.(190)
Several states adopted right to arms provisions repeatedly--first upon admission to the
Union, then upon readmission shortly after the Civil War, and again upon creation of a new
Constitution under Reconstruction. The Confederate States of America also put a right to
arms in their national Constitution.(191)
Second, states often thought it necessary to specifically
enumerate the exceptions to the right to arms. Many constitutions contain a specific
exception allowing restrictions on concealed carry. Open carry was considered
honorable, but concealed carry was seen useful only to people who wanted to surprise a
victim. Louisiana's constitution, for example, closely tracked the Second Amendment, but
added an exception against concealed carry: "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 abridged. This shall not prevent the passage of laws to punish those who carry weapons
concealed."(192) This concealed carry exception,
which was aimed at individuals, shows that the Louisiana right was an individual one. The
close reliance on the language of the Second Amendment further suggests that, at least to
those who drafted and ratified the Louisiana Constitution, the Second Amendment was seen
as protecting an individual right.
Similarly, Georgia during Reconstruction adopted a Bill of
Rights copied nearly verbatim from the federal Bill of Rights. The arms provision stated:
"A well-regulated militia being necessary to the security of a free people, the right
of the people to keep and bear arms shall not be infringed; but the general assembly shall
have power to prescribe by law the manner in which arms may be borne."(193) The Georgia Supreme Court has had no difficulty in
upholding this provision as protecting the right of individual Georgians to own and carry
guns. At the same time, the court relied on the Constitution's express grant of authority
to regulate the conditions of carrying as reason for upholding a state law prohibiting
deadly weapons at election grounds, courts, churches, and other public gatherings.(194)
Third, state constitutional arms provisions that address
the issue of the military and standing armies were not seen as inconsistent with
individual rights. Opponents of the individual rights view of the Second Amendment
normally point out that the Founders were gravely concerned about standing armies (true),
that they saw state militias as a counterpoise to a federal standing army (also true), and
that during the ratification debates over the proposed federal Constitution, many
anti-federalists worried that the new federal government would destroy the state militias
(also true). The anti-individual theorists then claim that because the Founders saw
militias as a protection against standing armies, the Second Amendment, therefore,
guaranteed only the right of state governments to have militias.(195)
But state constitutions show us that an anti-standing army
arms right provision can also be an individual right provision. For example, the Ohio
Constitution of 1851 stated, "The people have the right to bear arms for their
defense and security; but standing armies, in time of peace, are dangerous to liberty, and
shall not be kept up; and the military shall be in strict subordination to the civil
power."(196) Ohio courts have always treated this
provision as guaranteeing an individual right.(197)
Likewise, the 1868 North Carolina Constitution provided:
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; and, as standing armies in time of peace are dangerous to liberty, they ought
not to be kept up, and the military should be kept under strict subordination to, and
governed by, the civil power.(198)
This language quoted the Second Amendment but added
additional language denouncing standing armies. Surely if the anti-individual view of the
Second Amendment were correct, then the North Carolina language (even more heavily
weighted with anti-army language) could not be construed as an individual right.
But the North Carolina language was indeed so construed.
In 1875, the North Carolina legislature added concealed weapons control to the state
constitution: "Nothing herein shall justify the practice of carrying concealed
weapons, or prevent the General Assembly from enacting penal statutes against that
practice."(199) The anti-concealed weapons language
was obviously aimed at individual arms carriers, not at the state militia. And North
Carolina courts consistently interpreted the provision as guaranteeing an individual
right.(200)
Except for some statutes late in the century banning arms
from public parades, gun control in the nineteenth century was almost exclusively a
Southern phenomenon. In the post-Civil War period, the Southern gun laws were clearly
aimed at controlling the Freedmen; although written in racially neutral terms, the laws
were meant for, and applied almost exclusively to, blacks.(201)
As for the antebellum period, scholars have speculated
that the Southern controls were aimed at free blacks. But Clayton Cramer has shown that
the antebellum laws, which were written in facially neutral terms in a period when there
was no Fourteenth Amendment to require racial neutrality, had a different purpose.
Dueling had been widely practiced in the Southeast; legislative efforts to outlaw dueling
had been undermined by the courts and by juries. In the absence of regulated dueling,
Southerners whose honor had been offended simply killed the offender. The concealed
weapons laws were an extension of the antidueling laws and were intended to prevent the
victims of insults from killing the insulter. Legislatures accurately expected massive
resistance to the laws, and therefore included many special enforcement mechanisms, such
as allowing private citizens to bring criminal prosecutions and forbidding juries to
consider the defendant's motives.(202)
The solid majority of courts that reviewed the gun control
laws, which were often challenged under the Second Amendment and its state analogues,
would uphold the particular control, while affirming an individual right to own and carry
guns.
1. Tennessee
One of the most important state gun cases in the
nineteenth century was Aymette v. State, an 1840 decision upholding
restrictions on carrying concealed weapons.(203) The
decision was based on the Tennessee Constitution's right to arms, but the court stated
that the Tennessee provision was intended "[i]n the same view" as the Second
Amendment.(204) The Aymette court read the Tennessee
provision (and, by analogy, the Second Amendment) narrowly, finding that the right to
arms was only so that the people as a whole could rise up against tyranny; the right was
not for "private" defense.(205) Further, the
right to "bear arms" meant only the right to carry weapons in a public military
context, not to carry concealed weapons for personal protection.(206)
Given the anti-tyranny purpose of the right, the only arms protected were weapons useful
for resisting tyranny, but not those useful mainly for crime:
[T]he use of those weapons which are usually
employed in private broils, and which are efficient only in the hands of the robber and
the assassin . . . . The right to keep and bear them, is not,
therefore, secured by the constitution.(207)
As to the weapons which were protected:
The citizens have the unqualified right to keep
the weapon . . . . But the right to bear arms is not of that
unqualified character. . . . [B]ut it does not follow, that they may be
borne by an individual, merely to terrify the people, or for purposes of private
assassination. . . . [T]he legislature may prohibit such manner of wearing
as would never be resorted to by persons engaged in the common defence.(208)
Aymette laid down the line followed by the
majority of state courts considering right to arms cases: the right was for protection
from tyranny; the right encompassed the ownership of weapons useful for resisting
tyranny; but the right did not encompass the carrying of concealed weapons not suitable
for resisting tyranny.(209)
After the Civil War, the Tennessee Supreme Court decided
another case, Andrews v. State, which elaborated on the principles of Aymette,
and which, like Aymette, was widely cited in other states.(210)
The Tennessee legislature had banned the carrying of certain weapons--concealed or
openly--and several defendants charged with violation of the law argued that the law
violated the Second Amendment and the Tennessee Constitution. The summary of the briefs at
the beginning of the case shows that, regarding the Second Amendment, the Attorney General
simply replied that the Second Amendment was not enforceable against the states.(211) In oral argument, apparently, the Attorney General
went further, arguing that the Second Amendment and the Tennessee state constitutional
right to arms were meant to protect a "political right."(212)
Citing Barron v. Baltimore,(213)
the Andrews court held that the Second Amendment was inapplicable to the states.(214) But the Court construed the Tennessee provision and
the Second Amendment together, finding "that, necessarily, the same rights, and for
similar reasons, were being provided for and protected in both the Federal and State
Constitutions . . . ."(215) The
court's construction of the state and federal right to arms is worth quoting at length,
because it is a perfect example of the dominant line of nineteenth-century case law on the
right to arms, expressing several principles:
1. The purpose of the right is to secure a
militia, which is a foundation of a free society.
2. To make possible a militia, all persons have
the right to purchase, use, practice with, and carry weapons for all non-nefarious
purposes.
3. The right only includes the type of arms used
by a militia (e.g., rifles and swords) and does not include non-militia type weapons
allegedly favored by criminals (e.g., concealable knives ).
As the court wrote:
It was the efficiency of the people as soldiers,
when called into actual service for the security of the State, as one end; and in order to
this [sic], they were to be allowed to keep arms. What, then, is involved in this
right of keeping arms? It necessarily involves the right to purchase and use them in such
a way as is usual, or to keep them for the ordinary purposes to which they are adapted;
and as they are to be kept, evidently with a view that the citizens making up the yeomanry
of the land, the body of the militia, shall become familiar with their use in times of
peace, that they may the more efficiently use them in times of war; then the right to keep
arms for this purpose involves the right to practice their use, in order to attain to this
efficiency. The right and use are guaranteed to the citizen, to be exercised and enjoyed
in time of peace, in subordination to the general ends of civil society; but, as a right,
to be maintained in all its fullness.
The right to keep arms, necessarily involves the
right to purchase them, to keep them in a state of efficiency for use, and to purchase and
provide ammunition suitable for such arms, and to keep them in repair. And clearly for
this purpase [sic], a man would have the right to carry them to and from his home, and no
one could claim that the Legislature had the right to punish him for it, without violating
this clause of the Constitution.
But farther than this, it must be held, that the
right to keep arms, involves, necessarily, the right to use such arms for all the ordinary
purposes, and in all the ordinary modes usual in the country, and to which arms are
adapted, limited by the duties of a good citizen in times of
peace . . . .
. . . .
What, then, is he protected in the right to keep
and thus use? Not every thing that may be useful for offense or defense; but what may
properly be included or understood under the title of arms, taken in connection with the
fact that the citizen is to keep them, as a citizen. . . . [W]e would hold,
that the rifle of all descriptions, the shot gun, the musket, and repeater, are such
arms . . . .(216)
The Attorney General, however, had argued "that the
right to keep and bear arms is a political, not a civil right."(217)
Under existing Tennessee doctrine, rights classified as "political" (such as
voting) were subject to limitless legislative restriction, while rights classified as
"civil" were not.(218) The Tennessee court
responded that the Attorney General
fails to distinguish between the nature of the
right to keep, and its necessary incidents, and the right to bear arms for the common
defense. Bearing arms for the common defense may well be held to be a political right, or
for protection and maintenance of such rights, intended to be guaranteed; but the right to
keep them, with all that is implied fairly as an incident to this right, is a
private individual right, guaranteed to the citizen, not the soldier.(219)
The court then quoted at length from Justice Story's
treatise on constitutional law:(220)
We cite this passage as throwing light upon what
was in tended to be guaranteed to the people of the States, against the power of the
Federal Legislature, and at the same time, as showing clearly what is the meaning of our
own Constitution . . . . So that, the meaning of the one, will give
us an understanding of the purpose of the other.
The passage from Story, shows clearly that this
right was intended, as we have maintained in this opinion, and was guar anteed 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.(221)
The court quoted additional material from Justice Story
and shared his worries about the neglect of the militia. The court also quoted the earlier
Tennessee case, Aymette v. State,(222)
and its invention of the "civilized warfare" test for determining the types of
arms constitutionally protected.(223)
The Tennessee statute had forbidden the concealed carrying
of, among other small weapons, any "pocket pistol."(224)
The Tennessee Supreme Court ruled that whether the defendant's revolver was a weapon--the
"skill in the use of which will add to the efficiency of the soldier"--was a
matter for decision at trial, based on the evidence.(225)
The instant statute was clearly unconstitutional, however, because it forbade all
carrying, rather than just concealed carry.(226)
A concurring and dissenting opinion argued for a broader
rule than the majority, not limiting the type of arms to "civilized warfare"
weapons and allowing only the "regulation" of concealed carry, but not its
prohibition.(227)
2. Arkansas
The anti-individual interpretation of the Second
Amendment made its first appearance in a concurring opinion in an 1842 Arkansas decision
upholding a law against carrying concealed weapons against a challenge under the Arkansas
Constitution and the Second Amendment.(228) Existing
Arkansas case law provided sufficient authority to uphold the law, but the court majority
went further, offering a narrow construction of the Second Amendment and its corresponding
provision in the 1836 Arkansas constitution.(229) The
majority argued that:
1. All natural rights are surrendered to full
government control upon the creation of a government;
2. An "absolute" right to arms would
mean that disarming violent criminals upon their apprehension was unconstitutional;
3. Therefore, since the policy implications of
the straw-man "absolute" right to arms are unacceptable, there must be no right
to arms at all.(230)
According to this Arkansas court, the sole purpose of the
Second Amendment was to secure a well-regulated militia: "the language used appears
to indicate, distinctly, that this, and this alone, was the object for which the article
under consideration was adopted."(231) The Amendment
was based on the theory
that the militia, without arms, however well
disposed, might be unable to resist, successfully, the efforts of those who should
conspire to overthrow the established institutions of the country, or subjugate their
common liberties . . . . [F]or this purpose only, it is conceived that
the right to keep and bear arms was retained, and the power which, without such
reservation, would have been vested in the government, to prohibit, by law, their keeping
and bearing arms for any purpose whatever, was so far limited or
withdrawn . . . that the people designed and expected to accomplish this
object, by the adoption of the article under consideration, which would forever invest
them with a legal right to keep and bear arms for that purpose; but it surely was not
designed to operate as an immunity to those, who should so keep or bear their arms as to
injure or endanger the private rights of others, or in any manner prejudice the common
interests of society.(232)
Thus, since the restriction on carrying concealed arms did
not impair the ability of the people to rise against tyranny, the law did not violate the
state constitution's right to arms.(233) As for the
Second Amendment, it was "an open question" since no court had yet construed it.(234)
Justice Dickinson's concurring opinion went much further.
"The provision of the Federal Constitution . . . is but an assertion
of that general right of sovereignty belonging to independent nations, to regulate their
military force."(235) Since the law against carrying
concealed weapons did not interfere with the performance of federal militia duty, it did
not violate the Second Amendment.(236) This represents
the birth of the anti-individual version of the Second Amendment.
The dissent bitterly contested the majority's arguments
one-by-one, pointing out that the same rationale could be used to obliterate any natural
law right guaranteed under the Arkansas or federal constitutions. Regarding the Second
Amendment, the dissent lamented that under the concurring opinion's interpretation,
it is the militia alone who possess this right,
in contradistinction from the mass of the people; and even they cannot use them for
private defence or personal aggression, but must use them for public liberty, according to
the discretion of the Legislature. According to the rule laid down in their interpretation
of this clause, I deem the right to be valueless, and not worth preserving; for the State
unquestionably possesses the power, without the grant, to arm the militia, and direct how
they shall be employed in cases of invasion or domestic insurrection. If this be the
meaning of the Constitution, why give that which is no right in itself, and guaranties a
privilege that is useless?(237)
Whether rightly or wrongly reasoned, the concurrence in State
v. Buzzard marks the birth of the states' rights, anti-individual view
of the Second Amendment. It is notable that the birth occurs half a century after the
ratification of the Amendment, and the concurrence was not able to cite a single authority
of any type in support of its position. Anti-individualists appear unaware of the Buzzard
concurrence, although it should have pride of place as the creator of their theory.
After the Civil War, the Arkansas court moved away from Buzzard's
more extreme language, and began to restore some force to the right to arms. An 1872
decision cited Buzzard merely for the proposition that the legislature could
prohibit injurious uses of firearms, "so long as their discretion is kept within
reasonable bounds."(238) Under this standard, a law
against concealed carry was "not unreasonable."(239)
In 1876, the court heard a Second Amendment and state
constitutional challenge to a new law prohibiting the wearing--openly or concealed--of
various edged weapons, pistols, and brass knuckles.(240)
The court ruled that the Second Amendment was not a limit on the states.(241)
Following the 1871 Tennessee decision Andrews v. State, the
Arkansas court held that the state Constitution and the Second Amendment protected citizen
ownership of arms, but limited that protection to weapons that were useful for purposes of
war.(242) Thus, the ban on these particular concealable
weapons was constitutional.(243) While large
military-size repeating pistols were within the scope of the right to arms, small pistols
were not.(244)
In 1878, the court struck down a ban on carrying weapons,
as applied to the defendant's carrying of a concealed army-sized pistol: "If cowardly
and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must
be pre vented by the penitentiary and gallows, and not by a general deprivation of a
constitutional privilege."(245) Although the
Arkansas Supreme Court never formally overruled Buzzard, the court's postwar
decisions returned Arkansas law to the mainstream. The Buzzard concurrence's
assertion that the right to arms was not individual vanished from American case law for
the rest of the nineteenth century.
3. Georgia
The 1846 case Nunn v. State was
the first case in which a court used the Second Amendment to invalidate a gun control law.(246 The Georgia legislature had banned the sale and
possession of knives intended for offensive or defensive purposes and pistols, except
"such pistols as are known and used as horse man's pistols."(247)
The law made an exception which allowed possession (but not sale) of the banned weapons if
the weapon were worn "exposed plainly to view."(248)
The Georgia Constitution at the time had no right to arms
provision, but the state Supreme Court combined natural rights analysis with the Second
Amendment to declare the law unconstitutional:
[When] did any legislative body in the Union
have the right to deny to its citizens the privilege of keeping and bearing arms in
defence of themselves and their country?
. . . [T]his is one of the
fundamental principles, upon which rests the great fabric of civil liberty, reared by the
fathers of the Revolution and of the country. And the Constitution of the United States,
in declaring that the right of the people to keep and bear arms, should not be infringed,
only reiterated a truth announced a century before, in the act of 1689, "to extend
and secure the rights and liberties of English subjects"--Whether living 3,000 or 300
miles from the royal palace.(249
And thus, "[t]he 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."(250)
The Georgia court kept the introductory clause to the
Amendment firmly in view: "our Constitution assigns as a reason why this right shall
not be interfered with, or in any manner abridged, that the free enjoyment of it will
prepare and qualify a well-regulated militia, which are necessary to the security
of a free State."(251) Thus:
If a well-regulated militia is necessary to
the security of the State of Georgia and of the United States, is it competent
for the General Assembly to take away this security, by disarming the people? What
advantage would it be to tie up the hands of the national legislature, if it were in the
power of the States to destroy this bulwark of defence? In solemnly affirming
that a well-regulated militia is necessary to the security of a free State,
and that, in order to train properly that militia, the unlimited right of the people
to keep and bear arms shall not be impaired, are not the sovereign
people of the State committed by this pledge to preserve this right inviolate?(252)
And what is the scope of this "unlimited right"?
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,
originally belonging to our forefathers, trampled under foot by Charles I. and his two
wicked sons and successors, re-established by the revolution of 1688, conveyed to this
land of liberty by the colonists, and finally incorporated conspicuously in our own Magna
Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the
laurel-crowned field of New Orleans plead eloquently for this interpretation! And the
acquisition of Texas may be considered the full fruits of this great constitutional right.(253)
The opinion concluded by holding that the ban on concealed
carrying was valid because it did not interfere with a citizen's Second Amendment right;
but insofar as the law "contains a prohibition against bearing arms openly,
[it] is in conflict with the Constitution, and void . . . ."(254) Since the indictment did not specify that Nunn's
weapon was concealed, the charges were quashed.
After the Civil War, Georgia added a right to arms to its
state constitution. Although courts enforced this provision, they rejected the Second
Amendment as a limit on state power, and also rejected the use of natural law.(255)
4. Louisiana
In 1850, the Louisiana Supreme Court faced a challenge to
a state law banning concealed carry, but allowing open carry. The court considered the
Second Amendment to be applicable to the states--to protect an individual's right to carry
a gun for personal defense--but held that a state law which banned only carrying concealed
did not violate the Second Amendment.(256) Subsequent
cases in 1856(257) and 1858(258)
reaffirmed this holding.
5. North Carolina
An 1844 decision of the North Carolina Supreme Court
relied on Barron v. Baltimore to rule that the Second Amendment
does not constrain state laws.(259) The state
constitution provided
[t]hat the people have a right to bear arms, for
the defence of the State; and, as standing armies, in 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.(260)
Although this provision was replete with
anti-standing army
language, the court held that the North Carolina provision guar anteed more than just a
right to the state militia. The North Carolina Supreme Court treated the constitutional
guarantee as protecting a right of all persons to possess and carry fire arms, including
for defensive purposes. The court held, however, that an implicit exception allowed the
legislature to exclude free blacks from enjoying this right; therefore an 1840 law
requiring free blacks who wished to own guns to obtain a license was constitutional.(261) (The implication, of course, was that a licensing
statute applied to a citizen with full civil rights would be unconstitutional.)
The North Carolina court's decision illustrates that, contra
the central argument of the anti-individualists, concern about standing armies is not
inconsistent with protection of a broad individual right to personal defense. The other
North Carolina decisions from the nineteenth century (and the twentieth) treated the arms
rights provision as protective of an important individual right of personal defense.(262)
6. Texas
A Texas statute specified that manslaughter with a Bowie
knife or dagger would be treated as murder, and a defendant in Cockrum v. State claimed
that his conviction under this statute violated the Second Amendment.(234)
The court began by explaining that the introductory clause of the Second Amendment
"has referenee [sic] to the perpetuation of free government, and is based on the
idea, that the people cannot be effectually oppressed and enslaved, who are not first
disarmed."(264) The Texas clause "has the same
broad object in relation to the government, and in addition thereto, secures a personal
right to the citizen."(265) In other words, the
Second Amendment guaranteed a right to possess arms to resist tyranny, but not a right to
possess arms for personal protection. A second implication was that the Second Amendment
was a collective right, rather than a "personal" one. But there is no
indication that the Texas court meant that individual citizens could not exercise Second
Amendment rights. The court, basing its decision on the Texas arms right, simply ruled
that the law was constitutional because it did not ban the carrying of the Bowie knives,
but merely set a higher penalty for criminal misuse of this particularly dangerous weapon.(266)
After the Civil War, while Texas was under a
Reconstruction government very much concerned with Confederate sympathizers, the
legislature banned the carrying of certain edged and blunt weapons, whether openly or
concealed; there were exceptions for carrying under certain circumstances. Deciding a
Second Amendment and Texas Constitution challenge to the law, the Texas Supreme Court
decision in English v. State declared that the Second Amendment
bound the states.(267) Following "civilized
warfare" precedent from other states,(268) the court
stated
The word "arms" in the connection we
find it in the constitution of the United States, refers to the arms of a militiaman or
soldier, and the word is used in its military sense. The arms of the infantry soldier are
the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols and carbine;
of the artillery, the field piece, siege gun, and mortar, with side arms.
The terms dirks, daggers, slungshots,
sword-canes, brass knuckles and bowie knives, belong to no military vocabulary.(269)
Three years later, political power in Texas had shifted,
and State v. Duke repudiated English's narrow reading of the
type of arms protected. The Texas Constitution was read to protect all "arms as are
commonly kept, according to the customs of the people, and are appropriate for open and
manly use in self-defense, as well as such as are proper for the defense of the
State."(270) These included, besides the weapons
described in English, "the double-barreled shot-gun, the huntsman's rifle,
and such pistols at least as are not adapted to being carried concealed."(271) Duke rejected the defendant's effort to raise
the Second Amendment, stating that the Second Amendment did not limit the states, and thus
based the decision solely on the Texas Constitution.(272)
7. Illinois
In Dunne v. People, the Illinois Supreme
Court affirmed the centrality of state power over the militia, citing the Tenth Amendment
and the United States Supreme Court's Houston v. Moore precedent.(273) The Dunne Court also explained how a state's
constitutional duty to operate a militia was complemented by the right of the state's
citizens to have arms:
"A well regulated militia being necessary
to the security of a free State," the States, by an amendment to the constitution,
have imposed a restriction that Congress shall not infringe the right of the "people
to keep and bear arms." The chief executive officer of the State is given power by
the constitution to call out the militia "to execute the laws, suppress insurrection
and repel invasion."(274) This would be a mere
barren grant of power unless the State had power to organize its own militia for its own
purposes. Unorganized, the militia would be of no practical aid to the executive in
maintaining order and in protecting life and property within the limits of the State.
These are duties that devolve on the State, and unless these rights are secured to the
citizen, of what worth is the State government?(275)
8. West Virginia
West Virginia did not have a state constitutional right to
arms until the twentieth century.(276) The 1891 case of State
v. Workman involved a Second Amendment challenge to a statute banning the
carrying of "any revolver or other pistol, dirk, bowie-knife, razor, slung-shot,
billy, metallic or other false knuckles, or any other dangerous or deadly weapon of like
kind or character."(277) The statute allowed the
defendant to win an acquittal by proving that he was "carrying such weapon for
self-defence and for no other purpose."(278)
The applicability of the Second Amendment to the states
was, said the court, "a question upon which authorities differ."(279) Following the "civilized warfare" theory of
other state courts, West Virginia stated that the Second Amendment protected ownership of
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 to pistols, bowie-knives, 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 desparadoes, to the terror of the
community and the injury of the State.(280)
Thus, the anti-carrying statute stood. However, the
individual rights implications of the decision are clear.
9. State case law
summary
The majority of state courts in the nineteenth century
upheld restrictions on the carrying of concealed weapons. Courts affirmed the right of
citizens to carry firearms openly for protection but held that concealed carry
could be regulated, or even banned, by the legislature.(281)
Courts differed on whether the Second Amendment applied directly to the states.(282)
Similarly, most state courts upheld restrictions on the
types of weapons which were protected by the state right to arms. Rifles, shotguns, some
or all handguns, and swords were protected; but weapons thought to be associated with
dangerous characters--in particular, dirks and bowie knives--were generally held to be
outside the scope of the right to arms.(283)
While validating particular gun controls, every nineteenth
century state court judge who said anything about the Second Amendment, except for one
concurring judge in an 1842 Arkansas case, agreed that it protected the right of
individual Americans to own firearms.
IV. Antebellum Years and
the Civil War
The right to bear arms was often analyzed with the issue
of slavery in mind. Proslavery and abolitionist commentators agreed: a freedman had the
right to bear arms, while disarmament was an essential characteristic of a slave.
Dred Scott may be the best-known case decided by
the antebellum Supreme Court. Even persons who think that "Marbury vs. Madison"
was an important boxing match may have some passing familiarity with "Dred
Scott." The Dred Scott case is sometimes found among Standard Model articles
on the Second Amendment,(284) but is entirely absent from
the anti-individual right articles.
Chief Justice Taney's majority opinion held that a free
black could not be an American citizen. To support this conclusion, Justice Taney
enumerated the parade of horribles which would follow from American citizenship for
blacks: they would have the right to "the full liberty of speech in public and
private upon all subjects upon which its [a state's] own citizens might speak; to hold
public meetings upon political affairs, and to keep and carry arms wherever they
went."(285)
Another part of the opinion explained that Congress had no
power to infringe upon civil liberty (including, from the Taney Court's viewpoint, the
right to possess property in the form of slaves) in the territories:
[N]o one, we presume, will contend that Congress
can make any law in a Territory respecting the establishment of religion, or the free
exercise thereof, or abridging the freedom of speech or of the press, or the right of the
people of the Territory peaceably to assemble, and to petition the Government for the
redress of grievances. . . .
Nor can Congress deny to the people the right to
keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness
against himself in a criminal proceeding . . . .(286)
The above statement, which treated the right to arms as
one of several enumerated constitutional rights belonging to individuals, was widely
quoted during the debates over slavery and popular sovereignty.(287)
Dred Scott, while never formally overruled, is
not good law today, having been deliberately invalidated by section one of the Fourteenth
Amendment. The purpose in discussing Dred Scott is not to cite it as binding
precedent, but to acknowledge it as one of several nineteenth-century Supreme Court cases
involving the right to arms--all of which, as we shall see, treat the Second Amendment as
an individual right.
Antislavery activists deplored Dred Scott, but
they agreed with Chief Justice Taney that owning and carrying guns was a badge and
incident of freedom and was inconsistent with status as a slave. The abolitionists used
this theory, however, to reach a conclusion opposite to Taney's. Their basic argument was
that the institution of slavery, which prevented certain people from bearing arms, was
repugnant to the Second Amendment, which guaranteed the right to bear arms to all persons.
The argument thus illustrates the popularly held belief that the Second Amendment
guaranteed a personal right.
1. Lysander Spooner
"Lysander Spooner was surely one of the most
remarkable American men of letters of the Nineteenth Century."(288)
He wrote important books and pamphlets on scores of subjects, from intellectual property
to the right to jury trial.(289) But his greatest passion
was antislavery. "[O]ne of the most prominent radical theorists"(290) of the antebellum era, Lysander Spooner was a hero to
many antislavery activists, including John Brown, whose raid on Harper's Ferry was
inspired by reading Spooner.(291) Spooner's prewar
writing remained influential after the Civil War, making Spooner "pre-eminent in the
group of abolitionists who developed the constitutional law now incorporated in the
Fourteenth Amendment."(292) He remains a popular
author among libertarians and other advocates of small government.(293)
In contrast to William Lloyd Garrison and his Antislavery
Society, who denounced the Constitution as proslavery,(294)
Spooner was "the most theoretically profound advocate" of the position that
slavery was unconstitutional.(295) In the
widely-distributed and frequently reprinted book The Unconstitutionality of Slavery,
Spooner argued that the Constitution should be interpreted according to principles of
natural justice.(296) His natural justice interpretation
of the Second Amendment explained:
This right "to keep and bear arms,"
implies the right to use them--as much as a provision securing to the people the right to
buy and keep food, would imply their right also to eat it. But this implied right to use
arms, is only a right to use them in a manner consistent with natural rights--as, for
example, in defence of life, liberty, chastity, &c. . . . If the courts
could go beyond the innocent and necessary meaning of the words, and imply or infer from
them an authority for anything contrary to natural right, they could imply a
constitutional authority in the people to use arms, not merely for the just and innocent
purposes of defence, but also . . . robbery, or any other acts of wrong to
which arms are capable of being applied. The mere verbal implication would as
much authorize the people to use arms for unjust, as for just, purposes. But the legal
implication gives only an authority for their innocent use.(297)
Spooner obviously viewed the Second Amendment as a right
belonging to individuals. His exposition is an answer to twentieth-century gun prohibition
advocates who assert that an individual right to arms constitutes a right protecting
criminals who use weapons offensively.(298)
Spooner used the Second Amendment to argue that slavery
was unconstitutional. Since a slave is a person who cannot possess arms, and the Second
Amendment guarantees that all persons can possess arms, no person in the United States,
therefore, can be a slave. Similarly, the militia clause--Article I, Section 8--gives
Congress the power to have everyone armed. He elaborated:
These provisions obviously recognize the natural
right of all men "to keep and bear arms" for their personal defence; and
prohibit both Congress and the State governments from infringing the right of "the
people"--that is, of any of the people--to do so; and more especially of any
whom Congress have power to include in their militia. The right of a man "to keep and
bear arms," is a right palpably inconsistent with the idea of his being a slave. Yet
the right is secured as effectually to those whom the States presume to call slaves, as to
any whom the States condescend to acknowledge free.
Under this provision any man has a right either
to give or sell arms to those persons whom the States call slaves; and there is no constitutional
power, in either the national or State governments, that can punish him for so doing; or
that can take those arms from the slaves; or that can make it criminal for the slaves to
use them, if, from the inefficiency of the laws, it should become necessary for them to do
so, in defence of their own lives or liberties; for this constitutional right to keep arms
implies the constitutional right to use them, if need be, for the defence of one's liberty
or life.(299)
Twentieth century readers are not required to find
Spooner's argument persuasive. Article IV, Section 2 of the Constitution, requiring the
return of fugitive slaves, obviously contemplated that persons in the United States could
be slaves.(300) Instead, the point for purposes of this
article is that Spooner saw the Second Amendment as guaranteeing an individual right to
own and use guns for self-defense or defense of others, and he used this fact in arguing
against slavery.
Spooner made further use of the Second Amendment's
individual right to arms in other arguments. Advocating the right of fugitive slaves to
use weapons to resist recapture, Spooner wrote:
The constitution contemplates no such
submission, on the part of the people, to the usurpations of the government, or to the
lawless violence of its officers. On the contrary it provides that "The right of the
people to keep and bear arms shall not be infringed." This constitutional security
for "the right to keep and bear arms," implies the right to use
them . . . . The constitution, therefore, takes it for granted that,
as the people have the right, they will also have the sense, to use arms, whenever the
necessity of the case justifies it.(301)
Similarly, Spooner argued that unconstitutional laws need
not be obeyed pending their repeal; to require obedience to unconstitutional laws would be
to allow the government "to disarm the people, suppress the freedom of speech and the
press, prohibit the use of suffrage, and thus put it beyond the power of the people to
reform the government through the exercise of those rights."(302)
Thus, the right to arms provided one of the ways in which people could reassert control
over an erring government.
In Spooner's best seller, the 1852 An Essay on the
Trial by Jury, he used language drawn from the paragraph quoted above to prove that
the "right of resistance is recognized by the constitution of the United
States."(303) In the 1860 Address of the Free
Constitutionalists, Spooner again made the argument that "the right to keep and
bear arms implies the right to use them, and, therefore, this is an inherent right of
people to resist criminal assaults when the government fails to provide protection."(304)
2. Joel Tiffany
Joel Tiffany made his living as the reporter for the New
York Court of Appeals, as an author of legal treatises,(305)
and as publisher of Tiffany's Monthly magazine. But like Lysander Spooner, he was
consumed with the antislavery cause. Lysander Spooner and Joel Tiffany were "the
'principal spokesmen' and theorists of the abolitionist movement."(306)
"Spooner's and Tiffany's importance is recognized by nearly all."(307) The Spooner and Tiffany theory that the Constitution
guaranteed certain rights to all citizens "marked out a path for using the doctrines
of substantive due process and of the natural law privileges and immunities of citizenship
to further minority freedom."(308)
Like Spooner, Tiffany argued that the Second Amendment's
guarantee of a right to arms applied to all persons, and since an armed man could not be a
slave, slavery was unconstitutional.
Here is another of the immunities of a citizen
of the United States, which is guaranteed by the supreme, organic law of the land. This is
one of the subordinate rights, mentioned by Blackstone, as belonging to every Englishman.
It is called "subordinate" in reference to the great, absolute rights
of man; and is accorded to every subject for the purpose of protecting and
defending himself, if need be, in the enjoyment of his absolute rights to life,
liberty and property. And this guaranty is to all without any exception; for there is
none, either expressed or implied. And our courts have already decided, that in such cases
we have no right to make any exceptions. It is hardly necessary to remark that this
guaranty is absolutely inconsistent with permitting a portion of our citizens to be
enslaved. The colored citizen, under our constitution, has now as full and perfect a right
to keep and bear arms as any other; and no State law, or State regulation has authority to
deprive him of that right.
But there is another thing implied in this
guaranty; and that is the right of self defence. For the right to keep
and bear arms, also implies the right to use them if necessary in self defence; without
this right to use the guaranty would have hardly been worth the paper it consumed.(309)
Just as the civil war in Spain served as a prelude to
World War II, civil war broke out in the Territory of Kansas several years before the
American Civil War. Following the 1854 Kansas-Nebraska Act, proslavery and antislavery
settlers rushed in to take control of the territory and win the vote on whether Kansas
would join the Union as slave or free. The pro-slave forces, with heavy support from
"Border Ruffians" in Missouri, stuffed ballot boxes, violently drove free
soilers away from the polls in 1855, and expelled all slavery opponents from the
territorial legislature.
The free-soil settlers asked for guns for themselves, and
the Massachusetts Emigrant Aid Company promptly began smuggling Sharps Rifles to Kansas.
(The Company falsely claimed that while some of its members might be sending rifles, the
armament program was not officially run by the Company.) The Sharps were high-tech rifles,
incorporating the new breech loading design (as opposed to loading from the muzzle).(310) The rifles did their job and rapidly evened the
balance of power in Kansas. The proslavery government, however, attempted, with some
success, to disarm various armed groups of free-soil men.(311)
On May 19, 1856, Massachusetts Senator Charles Sumner--an
antislavery radical--rose to deliver what would become one of the most famous orations
ever delivered on the floor of the United States Senate. Sumner's speech, "The Crime
against Kansas," continued until the twentieth of May. South Carolina Senator A.P.
Butler had allegedly remarked that the people of Kansas should be disarmed of their Sharps
rifles. Sumner thundered:
Really, sir, has it come to this? The rifle has
ever been the companion of the pioneer and, under God, his tutelary protector against the
red man and the beast of the forest. Never was this efficient weapon more needed in just
self-defence, than now in Kansas, and at least one article in our National Constitution
must be blotted out, before the complete right to it can in any way be impeached. And yet
such is the madness of the hour, that, in defiance of the solemn guaranty, embodied in the
Amendments to the Constitution, that "the right of the people to keep and bear arms
shall not be infringed," the people of Kansas have been arraigned for keeping and
bearing them, and the Senator from South Carolina has had the face to say openly, on this
floor, that they should be disarmed--of course, that the fanatics of Slavery, his allies
and constituents, may meet no impediment. Sir, the Senator is
venerable . . . but neither his years, nor his position, past or present,
can give respectability to the demand he has made, or save him from indignant
condemnation, when, to compass the wretched purposes of a wretched cause, he thus proposes
to trample on one of the plainest provisions of constitutional liberty.(312)
Senator Butler indignantly replied that he had never
proposed disarming the people of Kansas. He had simply proposed bringing before
appropriate judicial authority "an organized body" who possessed Sharps rifles.(313)
But even if Senator Butler could claim that his remarks
were misunderstood, antislavery Congressmen had no doubt about the atrocities being
perpetrated in Kansas. Representative G.A. Grow of Pennsylvania, for example, gave a
litany of constitutional abuses perpetrated by the proslavery government in Kansas,
including: "With the shout of law and order you disarm the citizen, while the
Constitution of his country declares that the right 'to keep and bear arms shall not be
infringed.'"(314)
The 1856 national Republican Convention resolved that
"the dearest constitutional rights of the people of Kansas have been fraudulently and
violently taken from them . . . the rights of the people to keep and bear
arms have been infringed."(315)
The federal government, obviously, had done nothing to
interfere with the official militia of the proslavery government in Kansas. Yet the
Republicans still saw a violation of the Second Amendment: some of the state's citizens
were being disarmed because they considered the current state government illegitimate.
Indeed, the event that had precipitated Republican Sumner's speech was the "Sack of
Lawrence," in which the Kansas territorial militia, bearing arms supplied by the
United States government and under the command of a deputy federal marshal, confiscated
the guns of a group of free-soilers.(316) The
Republicans, seeing their constituents disarmed, invoked the Second Amendment. However,
soon the Democrats would invoke the Second Amendment to protest the disarmament of
citizens who did not belong to active state militias.
During the Civil War, President Lincoln ordered many
suppressions of civil liberties. His suspension of habeas corpus in states which
were not in rebellion against the Union, through which he imprisoned newspaper editors and
other persons who criticized the war, is the most famous.(317)
Less well known are the Union government's confiscations of firearms. Although Maryland
and Missouri never seceded, both states had significant pockets of Confederate
sympathizers. In Missouri, Union General John C. Frémont issued an order declaring that
all persons in a certain area found in possession of arms would be shot.(318)
Later, General Marsh ordered a general confiscation of all arms and ammunition, "not
in the hands of the loyal militia" and the transfer of all such arms and ammunition
to the militia.(319) Confederates made sure that
Lincoln's actions were publicized in the South; as one book put it: "The right of the
people to keep and bear arms shall not be infringed, says the constitution; but upon this
privilege he has trampled in Maryland, Missouri and Kentucky."(320)
The 1864 Democratic Convention denounced Lincoln's
suppression of civil liberties, condemning "the subversion of the civil by military
law in States not in insurrection; the arbitrary military arrests . . .;
the suppression of freedom of speech and of the press; . . . and the
interference with and denial of the right of the people to bear arms in their
defence."(321)
Also in 1864, one of Lincoln's strongest northern Democrat
critics, C. Chauncey Burr, authored Notes on the Constitution of the United States.(322) The book analyzed the Constitution clause by clause,
adding commentary intended to show that President Lincoln was violating the Constitution.
Regarding federal militia powers, Burr noted that the Constitution provided that the
militia could be called into federal service for three purposes only: "to execute the
Laws of the Union, suppress Insurrections, and repel Invasions."(323)
Burr contended that the militia was being used improperly in the Civil War because the war
was not being fought to execute the laws of the Union, but to abolish slavery and to
subjugate the South. There was no insurrection since state governments (as opposed to
individuals within a state) could not commit insurrection: state governments "are not
subjects. They are sovereign bodies."(324)
And obviously, there was no foreign power invading the United States.
In discussing the next clause of the Constitution
(granting Congress authority over militia training standards and discipline, while
reserving to states the appointment of militia officers and supervision of militia
training),(325) Burr commented, "The militia is
strictly a State institution. . . . The object of this provision is to
preserve the State character of the militia--to keep it as representative of State
sovereignty, even while it is but for a specified service under the direction of the
United States."(326) This would have been the
perfect time to criticize Lincoln for violating the Second Amendment had Burr thought that
the Amendment protected state militia from federal interference. But the Second Amendment
was absent from Burr's criticism.
Instead, the Second Amendment discussion came much later.
Burr quoted Justice Story at length on how tyrants "accomplish their
purposes . . . by disarming the people."(327)
"The present administration," charged Burr, "has violated this article of
the Constitution in every particular. It has, in a great many instances, disarmed the
people by forcibly entering their houses and seizing their arms of every
description."(328) Burr also complained that the
Lincoln administration had "substituted United States soldiery for militia" and
had imposed de facto martial law by stationing regular troops in New York City.
And, as Akhil Amar would argue many years later,(329)
Burr wrote that federal conscription for a standing army violated the Second Amendment,
since conscription "tends to annihilate" the ranks of the state militias.(330)
To Burr, Lincoln's firearm confiscations apparently
violated the main clause of the Second Amendment ("the right of the People"),
while Lincoln's reliance on a conscripted standing army at the expense of the militia
violated the introductory clause ("A well-regulated militia, being necessary to the
security of a free State"), which is why Lincoln's policies could be said to violate
the Second Amendment "in every particular."(331)
Whether Lincoln's policies were right or wrong is not the
subject of this article. The objections of the Democratic Convention and Burr to Lincoln's
actions reflected the belief that the Second Amendment guaranteed the right of individuals
to bear arms.
V. Reconstruction and
Labor Unrest
After the Union victory in the Civil War, Congress debated
and passed various measures, such as the Civil Rights Act and the Fourteenth Amendment,
designed to protect the civil rights of freedmen. During this period, the Second Amendment
was mentioned many times in Congressional testimony, in reports to Congress, in Committee
reports, and in floor debates.(332) These statements
treated the Second Amendment as an individual right. Records of Congress from this era are
replete with references to the "right" to arms, but since this article is about
the Second Amendment, and not about the state constitutional or natural right to arms,
this article quotes only those statements that specifically refer to the Second Amendment.
1. The Freedmen's Bureau
The Freedmen's Bureau reported to Congress on the numerous
abuses of civil rights taking place in the defeated Southern states. For example, in
Kentucky, "[t]he civil law prohibits the colored man from bearing
arms . . . . Their arms are taken from them by the civil
authorities . . . . Thus, the right of the people to keep and bear
arms as provided in the Constitution is infringed . . . ."(333) Similarly, General Rufus Saxton, the former assistant
commissioner of the Freedmen's Bureau in South Carolina, provided Congress with evidence
that in some parts of this State armed parties
are, without proper authority, engaged in seizing all fire-arms found in the hands of the
freedmen. Such conduct is in plain and direct violation of their personal rights as
guaranteed by the Constitution of the United States, which declares that "the right
of the people to keep and bear arms shall not be infringed." The freedmen of South
Carolina have shown by their peaceful and orderly conduct that they can safely be trusted
with fire-arms, and they need them to kill game for subsistence, and to protect their
crops from destruction by birds and animals.(334)
Throughout Reconstruction, many witnesses and special
committees complained that unreconstructed governments and terrorist organizations, such
as the Ku Klux Klan, were violating the Second Amendment rights of freedmen by disarming
them.(335)
To address the civil rights violations, Congress took up
Senate Bill 60, a bill to expand the powers of the Freedmen's Bureau. During debate over
the bill, Kentucky Democratic Senator Garret Davis emphasized that a shared commitment to
civil liberty united Americans more than party factionalism divided them:
But there were some principles upon which those
great, grand, noble old parties agreed; and what were they? . . . They were
for every man bearing his arms about him and keeping them in his house, his castle, for
his own defense. They were for every right and liberty secured to the citizen by the
Constitution.(336)
In the House, Massachusetts Congressman Nathaniel Banks
announced his plans to offer an amendment to the bill "inserting after the word
'including' the words 'the constitutional right to bear arms;' so that it will read,
'including the constitutional right to bear arms, the right to make and enforce contracts,
to sue.'"(337) As passed by Congress, the final bill
reflected Banks's desire for a specific recognition of the individual right to arms:
That in every State or district where the
ordinary course of judicial proceedings has been interrupted by the rebellion, and until
the same shall be fully restored . . . the right to make and enforce
contracts . . . and to have full and equal benefit of all laws and
proceedings concerning personal liberty, personal security, and the acquisition,
enjoyment, and disposition of estate, real and personal, including the constitutional
right to bear arms, shall be secured to and enjoyed by all the citizens of such State or
district without respect to race or color, or previous condition of slavery.(338)
President Johnson vetoed the bill. Congress, however, came
back with the Second Freedmen's Bureau Bill, which it passed over President Johnson's
veto. Section 14 of that Second Bill contained the same language as that quoted above,
protecting "the constitutional right to bear arms."(339)
2. Southern
representation in Congress
In early 1866, Congress took up the question of whether
the defeated states should be allowed representation in Congress. During the debate,
Nevada Senator James W. Nye stated that "[a]s citizens of the United States
[freedmen] have equal right to protection, and to keep and bear arms for self-defense.
They have long cherished the idea of liberty . . . ."(340)
In support of Southern representation, Illinois
Representative Anthony Thornton suggested that once the war had ended, all constitutional
rights were immediately restored. In support of this theory, he argued:
In all of the northern States, during the war,
the privilege of the writ of habeas corpus was suspended; freedom of speech was
denied; the freedom of the press was abridged; the right to bear arms was
infringed . . . . Our rights were not thereby destroyed. They are
inherent. Upon a revocation of the proclamation, and a cessation of the state of things
which prompted these arbitrary measures, the Constitution and laws woke from their
lethargy, and again became our shield and safeguard.(341)
Thus, Senator Nye and Representative Thornton viewed the
Second Amendment right to arms as a personal right, similar to the other rights in the
first eight amendments.
3. Civil Rights Bill
Rep. Henry Raymond (R-N.Y.) served on the Joint Committee
on Reconstruction and as an editor of the New York Times. He stated in support of
the Civil Rights Bill: "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 . . . a right to defend himself and his
wife and children; a right to bear arms . . . ."(342)
Another New York Republican, Roswell Hart, argued that the Constitution required states to
maintain a republican form of government, which meant, inter alia, a government
"where 'the right of the people to keep and bear arms shall not be
infringed;' . . . . Have these rebellious States such a form of
government? If they have not, it is the duty of the United States to guaranty that they
have it speedily."(343) If the Second Amendment only
protected state governments against the federal government, then Rep. Hart's statement
that the Second Amendment must be obeyed by state governments would make no sense.
Rep. Sidney Clarke of Kansas agreed with the New Yorkers:
[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 . . . .(344)
4. Anti-KKK Act
The frequently-invoked federal civil rights statutes,
which allow criminal and civil prosecution of state officials who violate federal civil
rights, were created by the "Anti-KKK Act." The Committee Report on the Act
explained, "in many counties they have preceded their outrages upon him [the
freedman] 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."(345)
Rep. Benjamin Butler (R-Mass.) elaborated:
Section eight is intended to enforce the
well-known constitutional provision guaranteeing the right of 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.(346)
Tennessee Democrat Washington C. Whitthorne objected that
the lawsuit provision of the anti-KKK act (allowing lawsuits for deprivation of
constitutional rights) would allow a New York police officer who disarmed a drunk to be
sued, "because the right to bear arms is secured by the Constitution."(347)
5. Fourteenth Amendment
When debate on the Fourteenth Amendment began, some
members of Congress argued that the Thirteenth Amendment already gave Congress sufficient
power to address Southern laws which prevented the ex-slaves from enjoying the status of
free men. Supporting this position, Kansas Senator Samuel Pomeroy asked:
And what are the safeguards of liberty under our
form of Government? There are at least, under our Constitution, three which are
indispensable--
1. Every man should have a homestead, that is,
the right to acquire and hold one, and the right to be safe and protected in that citadel
of his love. . . .
2. He should have the right to bear arms for the
defense of himself and family and his homestead. And if the cabin door of the freedman is
broken open and the intruder enters for purposes as vile as were known to slavery, then
should a well-loaded musket be in the hand of the occupant to send the polluted wretch to
another world, where his wretchedness will forever remain complete; and
3. He should have the
ballot . . . .(348)
Congressmen expressed their intention to remedy the
deprivation of Second Amendment rights through corrective statutes, and eventually through
the Fourteenth Amendment. For example:
Senator Howard . . . explicitly
invoked "the right to keep and bear arms" in his important speech cataloguing
the "personal rights" to be protected by the Fourteenth Amendment. Howard and
others may have been influenced by the antebellum constitutional commentator William
Rawle, who had argued in his 1825 treatise that the Second Amendment as written limited
both state and federal government . . . .(349)
As Eric Foner observes,
[I]t is abundantly clear that the Republicans
wished to give constitutional sanction to states' obligation to respect such key
provisions as freedom of speech, the right to bear arms, trial by impartial
jury . . . . The Freedman's Bureau had already taken steps to protect
these rights, and the Amendment was deemed necessary, in part, precisely because every one
of them was being systematically violated in the South in 1866.(350)
After the Amendment had been ratified, its Congressional
sponsors explained its meaning in relation to other legislation. For example, Jonathan
Bingham (R-Ohio), discussing section 1 of the Fourteenth Amendment, stated "that the
privileges and immunities of citizens of the United States, . . . are
chiefly defined in the first eight amendments to the Constitution of the United
States."(351) After listing the amendments, Bingham
explained: "These eight articles I have shown never were limitations upon the power
of the States, until made so by the fourteenth amendment."(352)
Rep. Henry Dawes (R-Mass.) agreed with Bingham that the
Fourteenth Amendment "privileges" incorporated the first eight amendments
against states, so a citizen "had secured to him the right to keep and bear arms in
his defense."(353) Later, Senator Allen G. Thurman
(D-Ohio) agreed that the "rights, privileges, and immunities of a citizen of the
United States" included all the rights secured by the first eight amendments, which
he described in order, including the right to bear arms: "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."(354)
6. The Civil Rights
Act of 1875
Georgia Democrat Thomas M. Norwood stated that U.S.
citizens living in territories enjoyed "the privileges and immunities of a citizen of
the United States" including "[t]he right . . . of peacable [sic]
assembly and of petition," and "to keep and bear arms."(355)
In debate on the same bill, Mississippi Republican James Alcorn made it clear that the
militia consisted of all citizens, not just a select group: "The citizens of the
United States, the posse comitatus, or the militia if you please, and the colored
man composes part of these."(356)
7. Summary of Congressional policy
The Congressmen of this period were hardly interested in
strengthening the state militias (which had just been defeated in the War of Rebellion, as
they called it), or in reinforcing states' rights.(357)
The Congressional concern about the constitutional right to keep and bear arms was
plainly a concern about the self-defense rights of individual citizens, especially
freedmen.(358) It would be ludicrous to attempt to
explain the record of the Reconstruction Congresses as anything but strong support for a
personal right to arms for self-defense. Thus, the anti-individual authors simply avoid
any mention of the subject. Jonathan Bingham and Jacob Howard, like St. George Tucker, are
carefully ignored.
Under the authority of the new civil rights laws, federal
prosecutors brought many cases against white defendants who, alone or in groups, had
violated the civil rights of freedmen. These defendants were frequently charged with
violating the Second Amendment rights of freedmen by taking their firearms.(359)
Eventually, the federal prosecutions made their way to the
Supreme Court in United States v. Cruikshank.(360)
Cruikshank involved the aftermath of the 1872 elections in Louisiana. Following
the elections, two separate governments--one Unionist and one racist--declared themselves
the winner and the official government of the state. In the town of Colfax, armed blacks
occupied the courthouse and the surrounding district to assert the legitimacy of their
side's control of the local government. Atrocities had been committed on both sides; a
rioting band of white farmers attacked the courthouse, burned it to the ground, and
murdered blacks who tried to escape the flames. Klansman William Cruikshank and other
leaders of the riot were tried in federal district court for violating federal civil
rights laws. By the terms of the Enforcement Acts,(361)
the trial court found Cruikshank guilty of conspiring to deprive the blacks of their
Constitutional rights, including the right to assemble peaceably and the right to bear
arms.(362)
The Cruikshank case forced the United States
Supreme Court to squarely address the issue of whether the enumerated provisions of the
Bill of Rights were made enforceable against the states by the Fourteenth Amendment and
the Congressional laws enacted pursuant to the Amendment. The issue had arisen a few years
before, in a federal prosecution of South Carolina Klansmen for conspiring to deprive
blacks of their arms and to destroy the black militias. There, the lower federal courts
had held that the Fourteenth Amendment did not incorporate the Bill of Rights. The Supreme
Court evaded review on procedural grounds.(363)
In Cruikshank, the Supreme Court held the
Enforcement Acts unconstitutional. The Fourteenth Amendment, the Court acknowledged, did
give Congress the power to prevent interference with rights granted by the Constitution.
However, the Court held that the right to assemble and the right to arms were not rights
granted or created by the Constitution. The first part of the opinion explained:
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 always has been, one of the attributes of citizenship
under a free government. It "derives its source," to use the language of Chief
Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, "from
those laws whose authority is acknowledged by civilized man throughout the world." It
is found wherever civilization exists. It was not, therefore, a right granted to the
people by the Constitution. The government of the United States when established found it
in existence, with the obligation on the part of the States to afford it protection.(364)
The Court further explained that the right to arms is a
fundamental human right:
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. The second amendment declares that it shall not be infringed; but
this . . . means no more than that it shall not be infringed by
Congress . . . leaving the people to look for their protection against any
violation by their fellow-citizens of the rights it recognizes, to what is
called . . . the "powers which relate to merely municipal
legislation . . . ."(365)
Cruikshank thus asserted that the Second
Amendment protected, but did not create, the individual's right to bear arms; the right
instead derives from natural law. The Court's position that people must look to local
governments "for their protection against any violation by their fellow-citizens of
the rights" that the Second Amendment recognizes is comprehensible only under the
individual rights view. If individuals have a right to own a gun, then individuals can ask
local governments to protect them against "fellow-citizens" who attempt to
disarm them. In contrast, if the Second Amendment right belongs to the state governments
as protection against federal interference, then mere "fellow-citizens" could
never infringe that right by disarming mere individuals.
The Cruikshank decision completed the work begun
by The Slaughter-House Cases, ruining the Fourteenth Amendment as a check on most
state abuses of the Bill of Rights until the 1920s.(366)
Although no longer good law, the case clearly
approaches
the Second Amendment from an "individual right" perspective.
Labor and anti-labor violence, both in urban centers and
in rural coal mines, became quite frequent in the latter part of the nineteenth century.(367) The major nineteenth century Supreme Court
interpretation of the Second Amendment involved a group of German immigrants--Lehr und
Wehr Verein(368)--marching in military exercise in
public. The case grew out of an Illinois arms control measure enacted in response to the
labor uprisings of the late 1870s. State militias and the federal army had brutally
suppressed peaceful strikes. When workers began forming self-defense organizations such as
Lehr und Wehr Verein, the state government outlawed private militias.(369)
A member of Lehr und Wehr Verein took the case to
the United States Supreme Court, and lost. First, the unanimous Court stated that the
Illinois laws "do not infringe the right of the people to keep and bear arms."(370) Thus, the right to own and carry guns does not include
the right to carry guns in public as part of a large group on military parade.(371) Further, as Cruikshank had noted, the Second
Amendment, under the Slaughter-House rationale, "is a limitation only upon
the power of Congress and the National government, and not upon that of the States."(372)
In dictum, the Court stated that even though the Second
Amendment did not limit state gun control, there was still a constitutional limit on state
controls. The states could not disarm the public so as to deprive the federal government
of its militia:
It is undoubtedly true that all citizens capable
of bearing arms constitute the reserved military force or reserve militia of the United
States . . . and, in view of this prerogative of the general
government . . . the States cannot, even laying the constitutional
provision in question [the Second Amendment] 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. But, as already stated, we think it clear that the sections under
consideration do not have this effect.(373)
The militia thus includes "all citizens capable of
bearing arms."(374)
Anti-individualist authors who discuss Cruikshank
and Presser tend to emphasize the nonapplicability of the Second Amendment to the
states, while gliding over the cases' clear understanding of an individual right to arms.
Most Standard Model authors acknowledge Cruikshank and Presser as green
lights for state gun control. The Standard Modelers argue, however, that Cruikshank
and Presser should be repudiated in light of modern Fourteenth Amendment
doctrine,(375) or that the two cases already have been
repudiated by dicta in three modern cases listing "the right to keep and bear
arms" as among the "full scope of the liberty" protected against state
infringement by the Fourteenth Amendment.(376) Stephen
Halbrook, one of the most important Standard Model authors, argues that the state gun
control passages in Cruikshank and Presser are mere dicta; the
holding of Cruikshank was that the Second Amendment could not be infringed by
nongovernment actors, and the holding of Presser was that the Second Amendment
was not infringed by a ban on armed parades.(377)
VI. Commentary from the
Late 19th Century: Cooley and Others
Turning to the scholarly commentators of the late
nineteenth century, Part VI of this Article examines, among other things, how Cruikshank
and Presser were read by the legal community of the period in which they were
decided.
By far the leading constitutional expositor of the
post-Civil War America, "the nation's elder statesman on matters of constitutional
law,"(378) was Michigan Supreme Court Justice Thomas
Cooley. He was considered "the greatest authority on constitutional law in the
world."(379) Cooley served on the Michigan Supreme
Court from 1864 to 1885, was listed by Roscoe Pound as one of the ten greatest judges in
American history,(380) and would have been appointed to
the United States Supreme Court, but for Republican bosses who feared his independence.(381)
Cooley also served as the first Dean of the Law Department
at the University of Michigan, which eventually became the Michigan Law School. He taught
Constitutional Law, among other subjects, and wrote important treatises on taxation(382) and torts.(383)
Professor Cooley was a superb lecturer, and (in great contrast to Harvard's3 Langdell)
courteous to his students. In his classes, he always paid heed to the social and cultural
context of the law.(384)
President Cleveland appointed Cooley the first head of the
new Interstate Commerce Commission (ICC). Although Cooley was a Republican, Democrat
Cleveland selected him because his reputation for impartiality would give the ICC the
trust and respect of persons of all points of view.(385)
He is the only person mentioned in this article to have a law school named after him. In
short, Thomas Cooley was "the most influential legal author of the late nineteenth
and early twentieth centuries."(386)
1. A Treatise on Constitutional Limitations
"[T]he foundation of [Cooley's] fame and his central
contribution was his first major publication,"(387)
the 1868 volume A Treatise on Constitutional Limitations, which went through
several editions over the following decades. It became "a canonical text for
jurists."(388) Two decades later, it "was still
the most scholarly and certainly the most admired American law book."(389) As a reviewer of a later edition explained, the book
was "cited in every argument and opinion on the subjects which it treats, and not
only is the book authoritative as a digest of law, but its author's opinions are regarded
as almost conclusive."(390) A century later, Constitutional
Limitations could accurately be described as "the most influential lawbook ever
published."(391)
The first edition of Constitutional Limitations
stated:
Right to bear Arms
Among the other defences to personal liberty
should be mentioned the right of the people to keep and bear arms. A standing army is
particularly obnoxious in any free government, and the jealousy of one has at times been
demonstrated so strongly in England as almost to lead to the belief that a standing army
recruited from among themselves was more dreaded as an instrument of oppression than a
tyrannical king, or any foreign power. So impatient did the English people become of the
very army which liberated them from the tyranny of James II., that they demanded its
reduction, even before the liberation could be felt to be complete; and to this day, the
British Parliament render a standing army practically impossible by only passing a mutiny
bill from session to session. The alternative to a standing army is "a well-regulated
militia," but this cannot exist unless the people are trained to bearing arms. How
far it is in the power of the legislature to regulate this right, we shall not undertake
to say, as happily there has been little occasion to discuss that subject by the courts.1
1 In Bliss v.
Commonwealth, 2 Lit. 90, the statute "to prevent persons wearing concealed arms"
was held unconstitutional, as infringing on the right of the people to bear arms in
defence of themselves and of the State.(392) But see Nunn
v. State, 1 Kelly 243.(393) As bearing upon the right of
self-defence, see Ely v. Thompson, 3 A.K. Marsh. 73,(394)
where it was held that the statute subjecting free persons of color to corporal punishment
for "lifting their hands in opposition" to a white person was held
unconstitutional.(395)
After denouncing standing armies, Cooley informed the
reader that "'a well-regulated militia' [requires that] the people are trained in the
use of arms."(396) In the footnote, Cooley first
mentioned a Kentucky case using the state constitution to strike down a ban on concealed
carry. Cooley next cited a Georgia case using the Second Amendment to void a restriction
on carrying guns openly, while upholding a restriction on carrying concealed guns. The
third case shows plainly that to Cooley, the "Right to bear Arms" (as he
entitled this section) was about individual self-defense.(397)
Elsewhere in the text, Cooley offered advice about the
"Formation of State Constitutions."(398) Among
the elements which Cooley thought appropriate to include in every state constitution was
a declaration of rights for the protection of
individuals and minorities. This declaration usually contains the following classes or
provisions:
1. Those declaratory of the general principles
of republican government [including a ban on peacetime standing
armies] . . . .
2. Those declaratory of the fundamental rights
of the citizen; . . . [including free speech, freedom of religion, freedom
from unreasonable searches and seizures, and] that every man may bear arms for the defence
of himself and of the State.(399)
If Cooley could reflect "happily" on how little
gun control had been enacted in the United States, it is unsurprising that he urged new
states to adopt Bills of Rights which specifically guarantee arms possession for personal
defense.
2. The General Principles of Constitutional Law
In 1880, Cooley authored The General Principles of
Constitutional Law, an abridged version of the Constitutional Limitations
treatise. The book was "a popular college text and student's guide."(400) General Principles had a much longer
exposition of the right to arms:
Section IV. -- The Right to Keep
and Bear Arms.
The Constitution. -- By the second
amendment to the Constitution it is declared 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."
The amendment, like most other provisions in the
Constitution, has a history. It was adopted with some modification and enlargement from
the English Bill of Rights of 1688, where it stood as a protest against arbitrary action
of the overturned dynasty in disarming the people, and as a pledge of the new rulers that
this tyrannical action should cease.(401) The right
declared was meant to be a strong moral check against the usurpation and arbitrary power
of rulers, and as a necessary and efficient means of regaining rights when temporarily
overturned by usurpation. [Cooley then placed a footnote to St. George Tucker's
extravagant tribute to the individual right to arms.(402)]
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 enrolment 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
guaranty 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 the right to meet for
voluntary discipline in arms, observing in doing so the laws of public order.
Standing Army. -- A further purpose of
this amendment is, to preclude any necessity or reasonable excuse for keeping up a
standing army. A standing army is condemned by the traditions and sentiments of the
people, as being as dangerous to the liberties of the people as the general preparation of
the people for the defence of their institutions with arms is preservative of them.
What Arms may be kept. -- The arms
intended by the Constitution are such as are suitable for the general defence of the
community against invasion or oppression, and the secret carrying of those suited merely
to deadly individual encounters may be prohibited.(403)
Cooley repeated the above language verbatim in the 1898
edition of General Principles.(404)
Cooley's discussion in "The Right is General" is
perhaps the most concise explication of how the individual right to arms supports the
Second Amendment's goal of "a well-regulated militia." There is no ambiguity to
Cooley's view of the Second Amendment as an individual right, and there is no questioning
Cooley's position as, by far, the leading constitutional commentator of post-Civil War
America.
Cooley also provided the succinct Standard Model reply to
the argument of David Williams that the right to bear arms is contingent on the government
maintaining the militia: "if the right were limited to those enrolled, the purpose of
this guaranty might be defeated altogether by the action or neglect to act of the
government it was meant to hold in check."(405) If
government neglect could destroy the Second Amendment, then the Amendment would hardly be
a check on government abuse.
Henigan addresses Cooley, but sidesteps the Second
Amendment issue. He first notes that Levinson quotes from Cooley's third edition. Henigan
then points out that the fourth edition (published years after Cooley's death) contains a
citation to Presser, not contained in the third edition, which stands for the
principle that the Second Amendment limits only the federal government, and not the
states.(406) This is true enough, but Henigan does not
show any flaws in Cooley's interpretation of the Second Amendment, nor does he show that
Cooley's view was rejected by any contemporary. Henigan fails to acknowledge another
statement by Cooley, which directly addresses Henigan's concern that a constitution cannot
contemplate the overthrow of the government created by the constitution, should the
government become tyrannical:
The right of the people to bear arms in their
own defence, and to form and drill military organizations in defence of the State, may not
be very important in this country, but it is significant as having been reserved by the
people as a possible and necessary resort for the protection of self-government against
usurpation, and against any attempt on the part of those who may for the time be in
possession of State authority or resources to set aside the constitution and substitute
their own rule for that of the people. Should the contingency ever arise when it would be
necessary for the people to make use of the arms in their hands for the protection of
constitutional liberty, the proceeding, so far from being revolutionary, would be in
strict accord with popular right and duty.(407)
In analyzing Cooley, Henigan was attempting to refute
Sanford Levinson's The Embarrassing Second Amendment point by point (while
accusing Levinson of selective quotation).(408) It seems
likely, then, that Henigan was aware of Cooley's statement--since Levinson had quoted the
statement in full in his own article.(409)
Thomas Cooley was unquestionably an adherent to the
Standard Model, and believer in what Henigan derides as the insurrectionary view of the
Second Amendment. Of course, Cooley, like every other commentator of the nineteenth
century, saw the use of arms to restore the Constitution and to remove a government that
was destroying the Constitution as a method of upholding the law, not as
"insurrection." If, as Henigan's group claims, the Standard Model of the Second
Amendment is "a fraud," then was Justice Cooley a participant in that
"fraud"? Or a victim? Or is it perhaps inappropriate to describe as a
"fraud" the view held by the leading commentator of the late nineteenth
century--a view which, we shall see below, was held by every other scholar in the period
who discussed the issue?
Many other scholars wrote constitutional treatises in the
postwar years, although none was as influential as Cooley's. All of these scholars, like
all of the commentators before them, treated the Second Amendment as an individual right.
1. Joel Tiffany
Antislavery attorney Joel Tiffany remained active after
the Civil War. His 1867 book A Treatise on Government and Constitutional Law(410) stated:
The second amendment of the constitution
provides that the right of the people to keep and bear arms shall not be infringed,
because a well-regulated militia is necessary to the security of a free state. The militia
are the citizen soldiers, as distinguished from those who are trained to arms as a
profession, and who constitute the elements of a standing army. To be an efficient
militiaman the right to keep and bear arms is essential. This provision had its source in
that jealousy of power in the hands of the central government, so manifest in the people,
at the time the constitution was framed and adopted. This right in the people to keep and
bear arms, although secured by this provision of the constitution, is held in subjection
to the public safety and welfare. Whenever for any cause, the public safety shall require
the substitution of martial for civil administration, then the maxim, salus
respublica suprema lex,(411) applies; and this
constitutional right may be temporarily suspended. But while civil authority bears sway,
this provision of the constitution is the supreme law on that subject. Of the same
character is the third amendment. No soldier shall, in time of peace, be quartered in any
house, without the consent of the owner, nor in time of war, but in the manner prescribed
by law.(412)
Tiffany's prewar antislavery writings had used the
individual right in the Second Amendment as an argument against slavery.(413)
After the war, he construed the Second Amendment in pari materia with the Third
Amendment, which no one(414) disputes is an individual
right.(415)
2. Timothy Farrar
Antislavery attorney Timothy Farrar had been the law
partner of Daniel Webster,(416) and also part of a group
of trustees of Dartmouth college who modernized the curriculum.(417)
By the time he wrote his 1867 Manual of the Constitution of the United States,(418) he had risen to the bench.
Farrar was a respected figure, and his views
were widely known. An Ohio congressman, Judge William Lawrence, cited Farrar's 1867
treatise as authority to defend the constitutionality of the 1866 Civil Rights Act.
Historians have praised Farrar's abilities and noted his influence on national leaders
during the Civil War and Reconstruction as well as his role "help[ing] to define
clearly public attitudes on the nature and purpose of the Constitution."(419)
Taking an expansive view of constitutional rights, similar
to the one shared by Fourteenth Amendment sponsor Jonathan Bingham,(420)
Farrar wrote:
The States are recognized as governments, and,
when their own constitutions permit, may do as they please; provided they do not interfere
with the Constitution and laws of the United States, or with the civil or natural rights
of the people recognized thereby, and held in conformity to them. The right of every
person to "life, liberty, and property," "to keep and bear arms," to
the "writ of habeas corpus," to "trial by jury," and divers
others, are recognized by, and held under, the Constitution of the United States, and
cannot be infringed by individuals or States, or even by the government itself.(421)
In the chapter on "State Disabilities," Farrar
first listed the provisions on the main text of the Constitution forbidding acts which
infringe civil liberty (such as the prohibition on Bills of Attainder).(422)
He then observed:
Many subjects are similarly restricted in the
constitutional amendments of which the following are examples: The free exercise of
religion; . . . the right of the people to assemble and petition the
government; the right of the people to keep and bear arms; the right of the people to be
secure in their persons, houses, papers and effects . . . . [These]
acknowledged constitutional rights of the people must be protected by the government, not
only against their own wrongdoing, but against any other agency in the land.(423)
He argued that the federal government has no right
"to put a citizen to the rack" nor "to permit a village magistrate to do
the same thing, under the pretended authority of a State law. And so of every other
prohibition in the catalogue."(424)
Thus, Farrar (like Lysander Spooner but unlike Jonathan
Bingham) believed that the Bill of Rights, including the enumerated right of a person to
keep and bear arms, was enforceable against the states even without the Fourteenth
Amendment.(425) What is relevant for our purposes is not
whether this theory of the direct application of the Bill of Rights to the states was
correct, but that the right to arms was treated as one of the important individual rights
guaranteed by the Constitution.
In another chapter, Farrar argued that many constitutional
provisions forbid the government to perform acts which it has no positive power to perform
anyway.(426) Pointing to the constitutional prohibition
against the granting of titles of nobility, Farrar noted that even without the
prohibition, Congress had no power to confer honorable titles.(427)
Likewise, the First Amendment prohibits Congressional establishment of religion and
Congressional interference with free exercise of religion, peaceable assembly, or the
right to petition. But what
specific power mentioned in any part of the
Constitution, authorizes Congress to touch any one of these subjects, for any purpose
whatever? Why, then, restrict the power? So of "the right to keep and bear
arms," and divers other valuable common-law rights. Obviously they are all carefully
guarded; because under the general powers of the government to provide for the common
defence, the general welfare, and the blessings of liberty, and to do any thing necessary
and proper for those purposes, nothing could be said to be beyond the legitimate claims of
an agent charged with these duties.(428)
Farrar was wrong in guessing which particular clauses of
the Constitution would be used to twist the limited powers given to Congress into
unlimited power. It was perhaps beyond the contemplation of any mid-nineteenth century
legal scholar that the federal powers to tax and to regulate interstate commerce would be
twisted into power to regulate on any subject whatsoever. Regardless of the textual source
of the abuse of Congressional power, however, the First and Second Amendments were
construed by Farrar as nearly identical clauses, protecting important personal rights from
an overweening central government.
3. George W. Paschal
A "leading Texas lawyer"(429)
and staunch Unionist, George W. Paschal wasarrested by the Confederate government of
Texas during the Civil War. Although he had served on the Arkansas Supreme Court,(430) he spent many of his postwar years in Washington,
D.C., where he helped found the Georgetown University Law School, wrote books on various
legal topics,(431) and was one of the "leading
practitioners" before the Supreme Court.(432) He
authored The Constitution of the United States Defined and Carefully Annotated in
1868.(433) The treatise was "an important addition
to nationalist constitutionalism."(434)
Representative Jonathan Bingham "endorsed Paschal's treatise" on several
occasions, even urging the House of Representatives to purchase ten thousand copies.(435) Representative (and future President) James A.
Garfield cited Paschal on the floor of Congress, as did Representative William Lawrence,
Senator George Vickers, and Senator Lyman Trumbell.(436)
Supreme Court Justice Samuel Freeman Miller called Paschal's treatise a "very
valuable work."(437)
After quoting the Second Amendment, Paschal wrote:
This clause has reference to a free government,
and is based on the idea, that the people cannot be oppressed or enslaved, who are not
first disarmed.
The President, by order, disbanded the volunteer
companies of the District of Columbia, in November, 1867. His right to do so has been
denied.(438)
Paschal cited Tucker's Blackstone, Rawle's Treatise,
and the Texas case allowing an enhanced penalty for use of a bowie knife in a
manslaughter.(439)
Paschal's discussion of the militia clauses in Article I
was more extensive, as he thoroughly covered what had grown to be an extensive body of
case law, governing topics such as when the militia could be called out and the parameters
of federal control over the militia.(440) The Militia, he
said, consists "of the able-bodied male inhabitants of a prescribed
age . . . the body of arms-bearing citizens, as contradistiguinshed from
the regular army."(441)
4. Joel Bishop
Joel Prentiss Bishop authored important treatises on
criminal law, and in those treatises addressed criminal law-related constitutional issues
in passing. The 1865 third edition of Commentaries on the Criminal Law and the
1873 first edition of Commentaries on the law of Statutory Crimes contained
identical discussions of the Second Amendment: "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; and doubtless it does."(442)
Bishop obviously adhered to the Standard Model individual
rights view; he viewed the Second Amendment as a restriction on state governments, not a
protection of state governments against the federal government. Bishop continued:
As to its interpretation, if we look to this
question in the light of juridical reason, without the aid of specific authority, we shall
be led to the conclusion, that the provision protects only the right to "keep"
such "arms" as are used for purposes of war, in distinction from those which are
employed in quarrels, brawls, and fights between maddened individuals; since such, only,
are properly known by the name of "arms;" and such, only, are adapted to promote
"the security of a free State."(443)
Bishop thus followed the dominant line of state
constitutional case law, excluding certain weapons from the scope of the right. Next,
Bishop articulated the nineteenth century's most restrictive reading of the Second
Amendment right to bear arms in a scholarly treatise, although Bishop acknowledged that
there was contrary case law:
In like manner, the right to "bear"
arms refers merely to the military way of using them, not to their use in bravado and
affray. Still, the Georgia tribunal seems to have held, that a statute prohibiting the
open wearing of arms upon the person violates this provision of the Constitution, though a
statute against wearing of the arms concealed does not.(444)
And, in accord with the latter branch of this Georgia doctrine, the Louisiana court has
laid it down, that the statute against carrying concealed weapons does not infringe the
constitutional right of the people to keep and bear arms; for this statute is a measure of
police, prohibiting only a particular mode of bearing arms, found dangerous to the
community.(445)
Bishop's contrast between bearing arms in "the
military way" versus using them for "bravado and affray" (such as shooting
them off at New Year's, or using them in duels), does not explicitly state Bishop's views
on carrying guns for personal defense. But Bishop's acknowledgment of Nunn v. State
(a case guaranteeing a right to carry unconcealed firearms for personal protection) as a
case contrary to Bishop's own position suggests that Bishop opposed gun carrying for
personal defense.(446)
Read in the most restrictive light possible, Bishop's
treatise suggests: (1) the Second Amendment guarantees a right of individuals to own guns;
(2) the right's sole purpose was insurrection against tyranny; (3) the arms which could be
kept included only arms suitable for warfare; and (4) the right to "bear" arms
included only the right to carry arms in public during militia activity.
There is no nineteenth century commentator who appears
more dubious about the Second Amendment than Bishop. All of the restrictions articulated
by Bishop were, at the least, well-grounded in at least one branch of nineteenth century
case law. It is important to recognize that, as restrictive as Bishop's approach is, it is
clearly an individual rights one, comfortably within the Standard Model.
The 1901 edition of Statutory Crimes condensed
the Second Amendment discussion, emphasizing that the Second Amendment is
"declaratory of personal rights" but (like most of the rest of the Bill of
Rights) does not bind the states:
It is among the older amendments, most of which
are held to be restrictions on the national power, and not to bind the states. This one is
declaratory of personal rights, so also are some of the others which are adjudged not to
extend to the states; and, contrary perhaps to some former views, it is now settled in
authority that this provision has no relevancy to state legislation.(447)
5. John Norton Pomeroy
New York University law professor John Norton Pomeroy was
"one of the ten top law teachers in nineteenth century America."(448) Pomeroy moved to California, where he led the founding
of the Hastings College of Law(449) (the first three-year
law school in the American West),(450) and served as the
reporter for the California Supreme Court. His treatise on equity endured for decades as
the leading authority on the subject,(45`) and his
treatises on municipal law, contracts, water law, and other subjects were also important,
continuing for many editions.(452)
But of all Pomeroy's books, the one that was apparently
most in demand was An Introduction to the Constitutional Law of the United States.(453) First published in 1870, the book went through eight
editions until Pomeroy's death in 1885,(454) plus a
posthumous edition in 1888.(455) Pomeroy's constitutional
treatise was known nationally and used as a textbook at West Point and other colleges.(456)
Prefatory to his discussion of the clauses of the Bill of
Rights following the First Amendment, Pomeroy stated, "[W]hatever construction is
given to these clauses, will also apply to the same or similar provisions in the state
constitutions."(457) He wrote:
1. The right of the people to keep and bear
arms. The object of this clause is to secure a well-regulated militia. It has always been
the policy of free governments to dispense, as far as possible, with standing armies, and
to rely for their defence, both against foreign invasion and domestic turbulence, upon the
militia. Regular armies have always been associated with despotism. But a militia would be
useless unless citizens were allowed to exercise themselves in the use of warlike weapons.
To preserve this privilege, and to secure to the people the ability to oppose themselves
in military force against usurpations of the government, as well as against enemies from
without, that government is forbidden by any law or proceeding to invade or destroy the
right to keep and bear arms. But all such provisions, all such guarantees, must be
construed with reference to their intent and design. This constitutional inhibition is
certainly not violated by laws forbidding persons to carry dangerous or concealed weapons,
or laws forbidding the accumulation of quantities of arms with the design to use them in a
riotous or seditious manner. The clause is analogous to the one securing freedom of speech
and of the press. Freedom, not license, is secured; the fair use, not the libelous abuse,
is protected.(458)
Pomeroy's analysis succinctly distills the nineteenth
century Standard Model. Standing armies were still considered dangerous. The militia was
to be secured by guaranteeing a right of individual citizens "to exercise themselves
in the use of warlike weapons."(459) Like Joseph
Story, Pomeroy saw nothing inconsistent with the role of the people's militia in
suppressing "domestic turbulence" and the Second Amendment's purpose "to
secure to the people the ability to oppose themselves in military force against
usurpations of the government."(460) Republican
order could be disturbed by domestic riots or domestic tyrants; the Second Amendment was
to ensure the defeat of both.
To Pomeroy, the essence of the nation was the people of
the United States, not the government they had erected.(461)
Therefore, the people's sovereignty "still potentially exist[s] in the nation, ready
to be called forth whenever the people shall see fit . . . to put their
inherent, paramount force in motion."(462)
Consistent with Cruikshank, Pomeroy saw the limitations expressed in the Bill of
Rights not as grants by the government of certain rights to the people, but instead as
safeguards created by the people
to protect the private rights which exist
anterior to all governments . . . these limitations, I say, are the very
portions of the constitution which, more than all others, should receive a broad,
extensive, liberal interpretation in favor of the citizen against the government[]. All
experience shows that these fundamental rights are the most exposed to injurious
legislation; and it often needs the whole moral force of the judiciary to shield them from
invasion.(463)
Pomeroy, consistent with explicit state constitutional
provisions and state case law from the post-war years, thought there were exceptions to
the right to arms: carrying concealed weapons and seditious accumulation of weapons. These
exceptions, which only make sense as exceptions to an individual right, not to a state
government right, are the exceptions which prove the rule: the Second Amendment, like the
First Amendment, is an individual right, but abuse of the right is not constitutionally
protected.
6. Oliver Wendell Holmes, Jr.,
and James Kent
Oliver Wendell Holmes, Jr., was a distinguished legal
scholar and professor of law at Harvard. Serving on the Massachusetts Supreme Judicial
Court, he became one of the most important judges of the nineteenth century. His three
decades of service on the United States Supreme Court have made him the most widely
remembered legal scholar from the nineteenth century. But in 1873, Holmes was only at the
beginning of his legal career when his first book was published, an annotated edition of
Chancellor James Kent's Commentaries on American Law.(464)
Chancellor Kent's multi-volume commentaries, first
published in 1826, had displaced Tucker's American Blackstone as the leading
American law book. Kent's Commentaries had systematically discussed the main body
of the Constitution, including the Congressional militia powers.(465)
The Commentaries did not include a systematic analysis of amendments to the
Constitution, and Kent said nothing about the Second Amendment, although he did extol
self-defense as one of the absolute rights of American citizens. Americans have "the
natural right of self-defence, in all those cases in which the law is either too slow or
too feeble to stay the hand of violence."(466) Kent
explained that homicide in self-defense is justifiable, not merely excusable, and that the
right to self-defense "cannot be superseded by the law of society."(467)
Holmes added his own annotations to Kent's Commentaries,
and Holmes did address the right to arms. In a discussion of the police power, Holmes
observed:
As the Constitution of the United States, and
the constitutions of several of the states, in terms more or less comprehensive, declare
the right of the people to keep and bear arms, it has been a subject of grave discussion,
in some of the state courts, whether a statute prohibiting persons, when not on a journey,
or as travellers, from wearing or carrying concealed weapons, be constitutional.
There has been a great difference of opinion on the question.(468)
Holmes then noted the states and cases where such
restrictions had been found unconstitutional (Kentucky, Tennessee, and Mississippi) and
the states where such restrictions had been upheld (Indiana, Alabama, and Arkansas).
Holmes concluded with his own opinion that "[a]s the practice of carrying concealed
weapons has been often so atrociously abused, it would be very desirable, on principles of
public policy, that the respective legislatures should have the competent power to secure
the public peace, and guard against personal violence by such a precautionary
provision."(469)
Holmes, like James Kent, Thomas Cooley, and Joseph Story,
earned a place on Roscoe Pound's list of the ten greatest American judges.(470) As a jurist, Holmes made two more contributions to
self-defense jurisprudence. In Patsone v. Pennsylvania, he upheld a
state statute which barred aliens from possessing rifles and shotguns.(471)
Holmes observed that the purpose of the statute was to preserve the game for consumption
by Americans.(472) And he explained that the statute
"does not extend to weapons such as pistols that may be supposed to be needed
occasionally for self-defence."(473)
But Holmes' most important work in a self-defense case was
the 1921 decision Brown v. United States.(474)
The Brown case began at a federal naval yard in Texas. A man named Hermis had
twice assaulted Brown with a knife, and warned that the next time, either Hermis or Brown
"would go off in a black box."(475) One day,
Hermis again attacked Brown with a knife; Brown ran to get his coat, which contained a
pistol. Hermis pursued, and Brown shot him four times, killing him. At trial, the judge
instructed the jury that Brown had a duty to retreat, if he could do so safely.
Justice Holmes, a legal historian, traced the duty to
retreat rule to an earlier period in English history, when the law did not even recognize
a legal right of self-defense. "The law has grown," Holmes wrote, "in the
direction of rules consistent with human nature."(476)
Thus, declared Holmes, there is no legal duty to retreat before using deadly force. Nor
should a victim's response to a criminal attack be second-guessed at leisure by a judge:
"Detached reflection cannot be demanded in the presence of an uplifted knife."(477)
7. Editions of Blackstone
By the late nineteenth century, American law had come a
long way from the days when Tucker's American Blackstone was the only law book
available. But Blackstone was still the first treatise read by most would-be
lawyers, and the only law book read by some.(478) Thomas
Cooley's edition of Blackstone,(479) while
benefiting from its author's great prestige, was not the only updated edition available.
English law professor Herbert Broom(480) and Edward A.
Hadley had their own edition, published in 1875.(481) The
Broom and Hadley annotation about Blackstone's description of the English right to arms
quoted the Second Amendment, and pointed out: "The constitutions of several of the
states contain a similar clause. The right of carrying arms for self-protection was
discussed in Bliss v. Commonwealth, 2 Lit. 90; Nunn v.
State, 1 Kelly, 243; and Ely v. Thompson, 3 A.K. Marsh.
73."(482) The citations suggest a rather strong
pro-defense inclination on the part of Broom and Hadley, since they are the three strongest
cases from the nineteenth century involving an individual right to arms. Bliss
declared a law against concealed carry unconstitutional;(483)
Nunn declared a law against open carrying unconstitutional, while extolling the
right to arms;(484) and Ely held that free
people of color had a right to use force to defend themselves against criminal attacks by
whites.(485)
William Draper Lewis was a leading Progressive, the Dean
of the University of Pennsylvania Law School, the first Director of the American Law
Institute, and one of the attorneys who wrote the American Civil Liberties Union's amicus
brief in the Korematsu case.(486) Lewis's 1897
edition of Blackstone, like Broom and Hadley's Blackstone, explicated an
individual Second Amendment right, but cited Andrews v. State
to show that concealed carry restrictions were lawful.(487)
8. Theophilus Parsons
Theophilius Parsons was the son of the renowned Theophilus
Parsons, Chief Justice of the Massachusetts Supreme Judicial Court from 1806 to 1813. The
younger Parsons was "a successful insurance and admiralty lawyer"(488) who later taught contracts at Harvard Law School.(489) Although Parsons was a poor lecturer,(490)
he wrote several treatises,(491) including a very popular
one on contract law, which Samuel Williston later took over as revisor and editor.
In 1876, Parsons wrote, for a nonlegal audience, The
Personal and Property Rights of a Citizen of the United States.(492)
Parsons' treatment of the Second Amendment came as part of his three paragraph chapter
"Military Rights and Duties." After describing federal militia powers, he wrote:
"Militia" undoubtedly means the body
of arms-bearing citizens, as distinguished from the regular army. In 1863 Congress passed
an act declaring that all citizens of the United States, &c., "are hereby
declared to constitute the national forces, and shall be liable to perform military duty
in the service of the United States, when called out by the President for that
purpose." In New York it has been held that this act was unconstitutional, and in
Pennsylvania that it was constitutional; both the decisions being by single judges.
The second article of the amendments to 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.(493)
Since Parsons has nothing to say about the Second
Amendment, other than to quote it, it is difficult to discern his views, if any, on the
subject. Thus, he is the only nineteenth century commentator whose statement about the
Second Amendment may be said not to take a Standard Model position.
9. A foreigner's vantage: von Holst
In 1886, Dr. Hermann Eduard von Holst, a member of the
German Privy Council and professor at the University of Freiburg, authored a treatise on
American law for a European audience.(494) After quoting
the Second Amendment, he noted that
It has therefore been argued that the
constitutional provision refers only to arms necessary or suitable for the equipment of
militia; although it must not be inferred from this that the right is restricted to those
citizens who belong to the militia. As to whether or not the bearing of other arms can be
forbidden, judicial decisions are far apart. It is, however, generally admitted that the
secret carrying of arms can be prohibited.(495)
Holst also authored an eight-volume treatise
entitled, Constitutional and Political History of the United States.(496) He devoted several chapters to the pre-Civil War
troubles in Kansas and noted, "The governor and the federal dragoons were very active
in the discovery and confiscation of arms, although the possession of bearing of arms is a
right of every American, guaranteed by the constitution."(497)
10. John Hare
Thus far, none of the late nineteenth century commentators
had dealt with Cruikshank and Presser in much detail. In contrast,
Pennsylvania state district judge John Hare's treatise American Constitutional Law
addressed the Second Amendment exclusively through the lens of two recent Supreme Court
cases.(498) Hare wrote:
[T]he Second Amendment, which declares, "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," neither confers the right so
guaranteed nor lays any restraint on the States. They may make any regulation which does
not impair the prerogative of the General Government to call forth all citizens capable of
bearing arms for the public defence, or disable the people from performing their duty in
response to such a behest.
So the right voluntarily to associate as a
military company or organization, or to drill and parade with arms, is not an attribute of
national citizenship, but may be regulated by each State and forbidden to any company or
body of men who are not duly organized for that end, according to her laws or those passed
by Congress under the power to provide for organizing, arming, and disciplining the
militia. Such a conclusion is the more necessary because the authority of the General
Government in this behalf is so limited as to be practically a dead letter; and if it were
held to be exclusive of the States, an important arm of national defence and for the
suppression of riot and insurrection would be impotent.(499)
The above quotation contains two pinpoint cites to Presser.(500)
Hare's next paragraph observed that, similarly, the right
to practice law in a state court was not an attribute of national citizenship, but
depended exclusively on the laws of the relevant state.(501)
He continued:
The prohibitory articles of the Constitution
were critically considered by Chief-Justice Waite in The United States v.
Cruikshank in an opinion which gives a clear and consistent view of their operation on the
United States, the States, and the people, and defines the limits within which they may be
enforced by Congress. The case arose out of an indictment containing numerous counts,
drawn under a statute which was held to be invalid because the clauses relied on for its
support simply disable the States or the General Government, without imposing any duty or
restraint on individuals, and consequently do not afford a ground for penal legislation.(502)
Hare's exposition of Presser and Cruikshank
was fully consistent with the Standard Model. Presser removed the Second
Amendment as a barrier to state gun control, except to the extent that a state law might
interfere with federal militia powers. Cruikshank stood for the principle that
the Fourteenth Amendment does not grant Congress power to legislate against
nongovernmental conduct. The language in the first paragraph that the Second Amendment
does not "confer[] the right so guaranteed" tracked Cruikshank's language
that the Second Amendment (like the First Amendment right of assembly) guaranteed a
pre-existing human right, rather than conferring a new right.
11. George Ticknor Curtis
George Ticknor Curtis achieved national fame as the losing
lawyer in the Dred Scott case.(503) Thereafter,
he enjoyed a long career as a Washington lawyer, and frequently practiced before the
Supreme Court.(504) George Curtis was also a prodigious
author of important treatises on jurisprudence, equity, admiralty, and intellectual
property.(505) His modern importance, however, is based
mainly on his two volume Constitutional History of the United States: From the
Declaration of Independence to the Close of Their Civil War. "This work is the
classic treatment of the Constitution from the Federalist, Websterian point of view."(506)
The creation of the Constitution, and the causes and
aftermath of the Civil War were Curtis's primary focus, and his attention to the Bill of
Rights was cursory. In his chapter on the Bill of Rights, Curtis focused on the Ninth and
Tenth Amendments as limitations of federal power, and offered no elaboration about any of
the first eight amendments.(507) But Curtis did plainly
treat the Second Amendment as an individual right--one of the "rights of
persons"--like the rest of the first eight. Explaining the controversy that led to
the creation of the Bill of Rights, Curtis noted that the human rights provisions in the
text of the Constitution (such as the prohibition on ex post facto laws) "did not
secure the rights of persons as they were provided for in eight of the amendments, and,
above all, they did not reach the very important declarations contained in the ninth and
tenth."(508) Curtis added that amendments in the
Bill of Rights were restrictions only on the federal government, not the states.(509) Volume II contained an annotated appendix, in which
Supreme Court case citations were placed next to the provision to which they pertained.
The only citation that Curtis gave for the Second Amendment was to Presser v. Illinois.(510)
12. John C. Ordronaux
The 1890s saw a significant acceleration in the
publication of legal treatises. Columbia law professor John Ordronaux, who also held a
medical degree, wrote extensively on issues of criminal law and mental health.(511) He also wrote Constitutional Legislation in the
United States in 1891.(512) Ordronaux stated:
The right to bear arms has always been the
distinctive privilege of freemen. Aside from any necessity of self-protection to the
person, it represents among all nations power coupled with the exercise of a certain
jurisdiction. From time immemorial the sword has been the sceptre of military sovereignty.
From this arose the profession of arms, as a distinctive calling in every age. Exposed as
our early colonists were to the attacks of savages, the possession of arms became an
indispensable adjunct to the agricultural implements employed in the cultivation of the
soil. Men went armed into the fields, and went armed to church. There was always public
danger. This was recognized by the laws of the Plymouth Colony, which required that
"each person for himself have piece, powder, and shot--viz., a sufficient musket or
other serviceable piece for war, with bandeleroes,(513)
swords, and other appurtenances for himself, and each man-servant he kept able to bear
arms." And another ordinance required that men should go armed to church. Whence it
followed that the "embattled farmers"(514) of
the Revolution naturally enough became the minute men of Concord and Lexington, and the
founders of our national system of militia.(515)
Next, Ordronaux cited Cruikshank for the
"arms as a natural right" view:
Therefore, it was not necessary that the right
to bear arms should be granted in the Constitution, for it had always existed. It is not
in consequence dependent upon that instrument, and is only mentioned therein as a
restriction upon the power of the national government against any attempt to infringe it.
In other words, it is a right secured and not created.(516)
Without citing Presser, Ordronaux stated that
"this prohibition is not upon the States, whose citizens are left free in respect to
the extent of their enjoyment or limitation of the right."(517)
Because "arms" were meant "in its military
sense alone," states could regulate the carrying of arms. "Thus, the carrying of
concealed weapons may be absolutely prohibited without the infringement of any
constitutional right, while a statute forbidding the bearing of arms openly would be such
an infringement."(518) Further, states could require
permits for armed assemblies in public, or for the carrying of concealed weapons by even a
single person.(519) Ordronaux concluded with a paragraph
summarizing state and federal militia powers.(520)
Modern scholars might quibble with some of Ordronaux's
historical details. We now know, for example, that the Minutemen were not the same as the
militia; the Minutemen were a smaller group, who received extra training.(521)
The issue for this article, though, is not whether Ordronaux and his fellow scholars were
right in every detail, but what the legal scholars thought about the Second Amendment.
Ordronaux, with a high degree of enthusiasm, joins the unanimous opinion of other
nineteenth century scholars in viewing the Second Amendment as an individual right. Like
the Reconstruction Congresses, but unlike Bishop, Ordronaux exulted the Second Amendment
not just for resistance to tyranny, but for self-defense.
13. Samuel Freeman Miller and
J.C. Bancroft Davis
After practicing medicine in Kentucky for twelve years,
Samuel Freeman Miller became an attorney, moved to Iowa, helped found the nascent
Republican party in that state, and became friends with another attorney interested in
Republican politics--Abraham Lincoln.(522) Appointed to
the Supreme Court by President Lincoln in 1862, Justice Miller served until his death in
1890. Throughout his tenure, he was a strong opponent of allowing use of the Fourteenth
Amendment to protect human rights. He lectured on the Constitution at the University of
Michigan Alumni Day, at a Philadelphia celebration commemorating the Constitution, and ten
times at National University Law School in Washington, in the years 1887-1890.(523) After his death, the lectures were collected and
published as a book in 1893.(524)
Regarding Cruikshank, he cited the case for the
proposition that the Seventh Amendment is "a restriction upon the power of Congress,
but did not limit the power of the State governments in respect to their own
citizens."(525) He did not mention Presser
in his lectures.
Miller's editor, J.C. Bancroft Davis, wrote an appendix to
Lectures on the Constitution of the United States, to discuss constitutional
provisions which had not been addressed in the Miller lectures.(526)
The editor cited Cruikshank for the proposition that the Fourteenth Amendment
simply furnishes an additional guaranty against
any encroachment by the States upon the fundamental rights which belong to every citizen
as a member of society. . . . The only obligation resting upon the United
States is to see that the States do not deny the right. This the amendment guarantees, but
no more.(527)
On the same page, he cited Presser for the
statement that the Fourteenth Amendment Privileges and Immunities Clause "does not
prevent a State from passing such laws to regulate the privileges and immunities of its
own citizens as do not abridge their privileges and immunities as citizens of the United
States."(528)
In a discussion of the militia clauses in Article I of the
Constitution, the editor cited Presser for the premise that the power retained by
states over the militia
is so complete that a State may, unless
restrained by its own constitution, enact laws to prevent any body of men whatever, other
than the regularly organized volunteer militia of the State, and the troops of the United
States, from associating themselves together as a military company or organization, or to
drill or parade with arms in any place within the State, without the consent of the
governor of the State.(529)
The description of the first three amendments to the Bill
of Rights was terse, consisting of only a paragraph for each amendment. The Second
Amendment was explained:
This provision is a limitation only on the power
of Congress, and not upon the power of the States; and, unless restrained by their own
constitutions, State legislatures may enact statutes to control and regulate all
organizations, drilling and parading of military bodies and associations, except those
which are authorized by the militia laws of the United States.(530)
The book concluded with another appendix written by
Gherardi Davis, which consisted of the text of the Constitution, with string citation
footnotes provided for each constitutional provision. For the Second Amendment,(531) the editor cited Presser,(532)
Spies v. Illinois,(533) and Eilenbecker v.
Plymouth County.(534)
Spies was the prosecution growing out of the
Haymarket Riot, and is discussed below.(535) The only
thing the court said about the Second Amendment was: "[t]hat the first ten Articles
of Amendment were not intended to limit the powers of the state governments in respect to
their own people, but to operate on the National Government alone, was decided more than a
half century ago, and that decision has been steadily adhered to since."(536) The Court also cited Presser, Cruikshank,
and other cases for the proposition.(537) Similarly, Eilenbecker
held that the Fourteenth Amendment does not apply the Fifth, Sixth, and Eighth
Amendments against the states. The case's only reference to the Second Amendment is the
following statement: "the first eight articles of the amendments to the Constitution
have reference to powers exercised by the government of the United States and not to those
of the States."(538) Again, the Court cited Cruikshank,
Presser, and other cases.
14. Henry Campbell Black
Henry Campbell Black is known today by almost every
American law student and lawyer as the author of Black's Law Dictionary. However,
he also authored treatises on a variety of other subjects,(539)
including the Handbook of American Constitutional Law.(540)
In this "celebrated summary of constitutional law,"(541)
he wrote:
RIGHT TO BEAR ARMS
203. The second amendment to the federal
constitution, as well as the constitutions of many of the states, guaranty to the people
the right to bear arms.
This is a natural right, not created or granted
by the constitutions. The second amendment means no more than that it shall not be denied
or infringed by congress or the other departments of the national government. The
amendment is no restriction upon the power of the several states.(542)
As authority, Black cited Cruikshank.(543) He continued: "Hence, unless restrained by their
own constitutions, the state legislatures may enact laws to control and regulate all
military organizations, and the drilling and parading of military bodies and associations,
except those which are authorized by the militia laws or the laws of the United
States."(544) Black cited Presser and a
Massachusetts case.(545)
As to the type of arms protected, the arms
are those of a soldier. They do not include
dirks, bowie knives, and such other weapons as are used in brawls, fights, and riots. The
citizen has at all times the right to keep arms of modern warfare, if without danger to
others, . . . but not such weapons as are only intended to be the
instruments of private feuds or vengeance.(546)
He cited some of the standard state cases for this
proposition.(547) Lastly, he asserted that prohibitions
on carrying concealed weapons are not unconstitutional.(548)
Black thus provides another individual rights view, along with the standard exceptions
from the late nineteenth century.
15. George S. Boutwell
"[A] sturdy Puritan and politician of sterling
virtue,"(549) attorney George S. Boutwell was the
"arch-radical" of radical Republicans during the Civil War and Reconstruction.(550) He was elected to the Massachusetts state legislature
as a Democrat, and then elected Governor of Massachusetts in 1851 by a coalition of
Democrats and Free Soilers. But his vehement opposition to slavery impelled him to become
one of the founders of the Massachusetts Republican party.
During the Civil War, Boutwell served as America's first
Commissioner of Internal Revenue, and then in the United States House of Representatives
from 1863 to 1869. He was one of the Radical Republican leaders in the House, serving on
the Joint Committee on Reconstruction, and playing a major role in the shaping and passage
of the Fourteenth and Fifteenth Amendments. Boutwell was exceeded by no one in Congress in
his determination to use federal power to end slavery and promote civil rights for the
freedmen.(551) He was far ahead of his time, proposing an
amendment to the Civil Rights Act of 1866 that would have required public schools to be
integrated.(552)
President Grant appointed Boutwell Secretary of the
Treasury, a post he left in 1873 when he was elected to the Senate. He left the Senate in
1877 when President Hayes appointed him to recodify the statutes of the United States. He
produced the Revised Statutes of the United States in 1878. Thereafter, until his death in
1905, he practiced international law in Massachusetts. Boutwell remained active in public
affairs, closing his career as President of the Anti-Imperialist League and playing a
leading role in the fight against the new American foreign policy created by President
McKinley.(553)
George Boutwell's The Constitution of the United
States at the End of the First Century appeared in 1895.(554)
Boutwell's chapter on "The Right of the People to Keep and Bear Arms" informed
the reader that "the only case of importance" which has arisen under the Second
Amendment was Presser.(555) After summarizing
the case background and pointing out that the Illinois militia statute enrolled
able-bodied males between the ages of eighteen and forty-five in the state militia,
Boutwell noted that the claim was made that the Illinois statute against armed parades
without a permit (excepting parades by the state militia) was challenged under the Second
Amendment. But the Supreme Court explained "that the Second Amendment was a guarantee
that nothing should be done by the United States in restraint of the right of the people
to keep and bear arms, but that the amendment could not be appealed to as limiting the
power of the States."(556) Boutwell concluded with Presser's
caveat that state gun controls could not disable citizens from performing their federal
militia duties.(557)
16. James Schouler
Professor James Schouler essentially founded the legal
subject of domestic relations with his 1870 treatise on the topic, a treatise which went
through six printings over the next half-century.(558) He
also wrote treatises on wills, bailments, and property,(559)
and authored a major history of the United States--the first to cover the period between
the Revolution and the Civil War in a scholarly manner.(560)
In 1897, Professor James Schouler's series of lectures to
graduate students at Johns Hopkins University was published as Constitutional Studies:
State and Federal.(561) Describing the first eight
amendments of the Bill of Rights, Schouler wrote that they "touch the individual and
civil rights" and "apply exclusively to Federal jurisdiction and
procedure."(562) For the Second Amendment and the
Fourth Amendment, Schouler's text did nothing more than quote the amendment in full,
offering a sparse commentary in a footnote.(563)
The Second Amendment footnote stated: "In the English
Bill of Rights of 1688 was a similar provision as to Protestants, whom the King had
disbanded while treating Roman Catholics with favor."(564)
The footnote also referred the reader to "State maxims corresponding," in an
earlier part of the treatise, dealing with the Virginia Declaration of Rights of 1776.(565)
Explaining the Congressional militia powers, Schouler
wrote that States "feared that the Union would weaken each local militia for
strengthening the regular army; and hence the reservation here asserted [Article I's
reservation of militia training, and the appointment of militia officers to the states],
as well as the jealous amendments of 1789."(566) The
"jealous amendments" are cited in the footnotes as "Amendments II. and
III."(567)
Like many other late nineteenth century commentators,
Schouler took care to emphasize that laws restricting concealed weapons could pass
constitutional muster. Describing changes in state constitutions in the middle of the
nineteenth century, he wrote: "To the time-honored right of free people to bear arms(568) was now annexed, . . . the
qualification that carrying concealed weapons was not to be included."(569) State laws restricting the carrying of concealed
weapons apply, obviously, only to individuals, and not to state governments or state
militias. If concealed weapons laws are an exception to the right to keep and bear arms,
then the right is necessarily an individual right.
17. Home schooling
The "Home Law School Series" of books reminds us
of an era when graduation from a law school accredited by the American Bar Association was
not necessary for admission to the bar. The Constitutional Law book in the series
combined the Second and Third Amendments into a single paragraph.(570)
The provisions of Articles 2 and 3 were intended
to protect the people from arbitrary action on the part of government similar to that of
the English government in the past. The right of the people to bear arms was a practical
recognition of their right to demand with force that the government as constituted observe
Constitutional restraints. The right is general, and extends to all citizens, whether
enrolled in the militia or not. But it is held that it does not authorize the carrying of
weapons that are concealed, and which are chiefly useful in individual
encounters.--Cooley, Principles, 3d ed., 299.(571)
The paragraph is a rather concise summary of the view of
the nineteenth century commentators: the right belongs to all Americans, not just militia
members. The purpose of the right is to resist unconstitutional government. The right to
bear arms does not extend to the concealed carrying of guns, or to weapons
unsuitable for resisting tyranny.
18. Civics manuals
for youth
While legal texts from the nineteenth century are found in
most academic law libraries, books which discuss legal matters for a popular audience are
often not. Nor are such books often listed in legal indexes. Thus, the four popular books
discussed in this section are likely not the only books from the nineteenth century which
were written by and for non-lawyers about legal aspects of American government, including
the Second Amendment. But the books do offer at least some insight of how materials for
secondary schools and colleges treated the Second Amendment.
Caspar Thomas Hopkins' 1872 book A Manual of American
Ideas was written to instruct youth in principles of American government.(572) Hopkins listed "The right to keep and bear
arms" as among "the rights which are secured to every individual by the
Constitutions and laws of the United States."(573)
In a chapter devoted to a denunciation of standing armies, Hopkins explained that one
method by which standing armies are kept in check is that "[e]very individual
throughout the nation has the Constitutional right to keep and bear arms. This accustoms
the people to their use. (This right is not allowed by governments that are afraid of the
people.)"(574) The state-based militia system was
described separately, as a distinct check on standing armies.(575)
The Reverend Joseph Alden's Alden's Citizen's Manual:
A Text-Book on Government for Common Schools was simpler than the Hopkins book in its
approach to many issues. Alden quoted the full text of the Second Amendment in answer to
the question "Can the government disarm the people?"(576)
Israel Ward Andrews' 1874 textbook Manual of the
Constitution of the United States had the same title as Timothy Farrar's 1867 legal
treatise, although it is impossible to know if Andrews knew of the Farrar book.(577) Andrews was a highly-regarded professor at Marietta
College in Ohio, and his Manual was used for many years as a college textbook.(578) Andrews gave a militia-based exposition of the Second
Amendment: "The militia are the citizen soldiery of the country, as distinguished
from the standing, or regular, army. The militia system has been allowed to fall into
partial decay, showing that the people have little fear of need to defend themselves by
force of arms against their government."(579)
Andrews' Manual is not inconsistent with Henigan's theory,(580)
since Andrews does not specify who the militia are, or how they are armed. Nor are
Andrews' two sentences inconsistent with the mainstream of nineteenth century thought.
Calvin Townsend's 1868 Analysis of Civil Government
(written as a textbook usable for primary, secondary, and higher education) also offered a
militia-centric explanation of the Second Amendment:
The right of the people to keep and bear arms,
with which the General Government is herein prohibited from interfering, refers to an
organization of the militia of the States. There have been fears expressed, that the
liberty the people might be destroyed by the perverted power of a formidable standing
army. But here is the check to any such danger. The militia, that might be called out
anytime on a month's notice, would outnumber, twenty to one, any standing army in time of
peace that will ever be tolerated in United States. Large standing armies might indeed be
dangerous in a republican government, but for a much stronger force distributed throughout
the ranks of the people.(581)
But while Henigan sees the lauding of the militia as
inconsistent with an individual right, the nineteenth century did not. Townsend's book
included detailed outlines showing the order in which individual topics should be
presented. Under the general heading of "Freedom" was the subheading
"Civil." The individual topics listed under civil freedom were freedom of
speech, freedom of the press, "[t]he right of the people peaceably to assemble and
petition the government for redress of grievances" and "[t]he right of the
people to keep and bear arms."(582) Townsend listed
the right to arms as among the rights of an individual to civil freedom, rather than among
the powers of state governments.
19. John Randolph
Tucker
The story of nineteenth century legal treatises and the
Second Amendment ends where it began, with the Tucker family. John Randolph Tucker was the
son of the Henry St. George Tucker (the treatise writer and Virginia judge).(583) John Randolph Tucker served as Attorney General of
Virginia, United States Representative, and President of the American Bar Association.(584) He was a Democratic leader in Congress and an ardent
defender of the Constitution and its limits on central power.(585)
He also taught law at Washington & Lee, bearing as profound an influence on the growth
and success of that school as Thomas Cooley did at the University of Michigan.(586)
As a private attorney, his most famous trial was the
Haymarket case, which grew out of an 1886 confrontation between strikers and a violent
police force.(587) Tucker argued to the Supreme Court
that the Privileges and Immunities Clause of the Fourteenth Amendment made all of the Bill
of Rights (including, of course, the Second Amendment) enforceable against the states, and
therefore, the Haymarket defendants were entitled to a reversal of their convictions,
based on the violation of the rights against self-incrimination and on their right to an
impartial jury. Tucker pointed to Congressional debates on the Fourteenth Amendment,
argued that Cruikshank supported his position, and suggested that Presser
merely stood for the proposition that armed parades could be prohibited. The Supreme
Court, however, managed to sidestep the whole issue, by pointing out that the objections
raised by Tucker in the Supreme Court had not been raised by the Haymarket defendants'
attorney at trial. Tucker's arguments concerning the Fourteenth Amendment were adopted in
1892 by Justices Field, Harlan, and Bradley.(588)
John Randolph Tucker continued teaching at Washington
& Lee throughout his 1876-88 tenure in Congress. Upon retirement from Congress he
resumed full-time law teaching and began writing a treatise on constitutional law. Elected
President of the American Bar Association in 1892, Tucker was not able to see his treatise
through to publication before his death in 1897. His son, Henry St. George Tucker II (also
a law professor at Washington & Lee, and a future Congressman) brought the manuscript
to completion, without making editorial changes, in 1899.(589)
John Randolph Tucker explained the Second Amendment:
This prohibition indicates that the security of
liberty against the tyrannical tendency of government is only to be found in the right of
the people to keep and bear arms in resisting the wrongs of government.(590)
The case of Presser v. Illinois arose out of an act passed by the State of
Illinois prohibiting all bodies of men other than the regularly organized volunteer
militia of the state from associating and drilling as such. The Supreme Court held that it
did not conflict with this amendment, because the amendment is only a limitation of power
on Congress, not on the States.(591)
Thus, Tucker followed standard nineteenth century thought
in seeing the Second Amendment as designed to facilitate popular resistance to tyranny. He
likewise followed the standard post-Presser view that the Second Amendment was
not directly applicable to the states.
So far as the indexes reveal, few nineteenth century law
reviews discussed the Second Amendment. For example, the Albany Law Journal
carried a two-part article about the New York militia law, which did not mention the
Second Amendment.(592)
One notable exception, however, appeared in the Kansas
Law Journal. Published in 1885, this article remains to this day one of the most
incendiary discussions of militias ever to appear in a law journal.(593)
The article opened with sentiments that are commonplace in the militia movement of the
1990s, but rarely seen in law journals. "Devoted to the constitution," began the
epigraph quoting Wisconsin Supreme Court Chief Justice Ryan, "we invoke the vengeance
of God upon all who raise their sacrilegious hands against it." The author continued
by quoting Tocqueville's statement that unless democracy is guarded, "it merges into
despotism."(594) The author maintained that Kansas
was in fact drifting into despotism, as demonstrated by the new state militia law.(595)
This new Kansas militia law gave local officials the
authority to call out the militia, and the author feared that the law would be invoked to
suppress peaceful assemblies of political dissidents.(596)
Even worse, militia commanders themselves were given unilateral authority to take action.(597) The author theorized that this was particularly
dangerous because railroad companies could make their employees militia captains, and then
have the militia available as a private army.(598) This
new law was said to violate the Kansas Constitution, which gave only the Governor the
authority to call out the militia in circumstances far more limited than the militia law
authorized.(599)
A strike in the town of Atchison illustrated the danger of
the new state militia law. Although the strike ended peacefully, it was learned that both
the Mayor and Sheriff of Atchison wrote to the Kansas Governor during the conflict,
falsely claiming that the town was in the possession of a violent mob. In their letters,
they asked that the Governor call out the militia to break the strike and suppress the
mob.(600) If the Mayor or Sheriff had possessed
unilateral authority to call out the militia, they "would have crimsoned the streets
of Atchison with the blood of curious men, women and children, and provoked an
insurrection that would have made that city a bloody field of battle."(601)
Moreover, continued the article, the militia created by
the new law was a select militia in which only a small class of citizens enlisted; in
other words, "a military class to terrorize the community."(602)
In contrast:
The constitutional militia is a thing into which
a man grows by reaching his majority--he does not become a member by voluntary enlistment.
The intention was that every able-bodied citizen should have a gun in his hands and know
how to use it; then none need fear his neighbor nor a despot; while this law puts arms
into the hands of a class, and leaves the average citizen at their mercy. This
law creates a standing army in violation of the Bill of Rights. What element does it lack?
And while "the people have the right to bear arms for their defense and
security," "standing armies, in time of peace, are dangerous to liberty, and
shall not be tolerated." ([Kansas] Bill of Rights, sec. 4.)(603)
The article concluded by urging "some courageous
county attorney" to "wrap the stars and stripes about his hand and get hold of
this reptile before it hurts somebody."(604)
Although the subject of the article was the Kansas State Constitution, not the Second
Amendment, the article's sentiments are notable because it is one of only three nineteenth
century American law review articles that addressed the militia.
The only nineteenth century law journal article to address
the Second Amendment directly is a casenote on Presser, in the Central Law
Journal.(605) The note is a straightforward summary
of Presser, treating the case as affirming state authority over conduct within
its boundaries. The author concluded that "[i]t will no doubt be news to most people,
not members of the legal profession, and to many who are," that the Second Amendment
limits only Congress, and provides no protection against state gun laws.(606)
Some important lessons may be gleaned from the post-Civil
War treatises, commentaries, and law review articles. All of them treat the Second
Amendment as an individual right. Except for Cooley, none are mentioned anywhere in the
anti-individual literature. Some of them limit the individual right to the possession of
guns for resisting tyranny, while others explicitly affirm an individual right to own and
carry guns for personal protection.
The treatises also list various exceptions to the right to
arms, which were also expressed in Supreme Court cases: the right limits only the federal
government, not the states (Presser(607) and
perhaps Cruikshank(608)); the right is not
infringed by a ban on armed parades on public property (Presser);(609) and the right is not infringed by a prohibition on
carrying concealed weapons (Robertson v. Baldwin).(610)
VII. Fin-de-Siècle
and Beyond
The Supreme Court decided two cases involving the Second
Amendment in the 1890s.
1. Miller v. Texas
Franklin P. Miller was the white owner of a small store in
Dallas who fell in love with a black woman.(611) Because
the period just before and after the turn of the century was the apex of the horrible Jim
Crow era,(612) a white man associating with a black woman
often sparked violence in the South. The city police in Dallas heard that Miller was
carrying a handgun without a license. The law of the time did not require that a warrant
be obtained in order to arrest a person for unlicensed gun carrying. A group of police
officers assembled in a local tavern, enjoyed a good session of whiskey drinking, headed
over to Miller's store, snuck in a side alley, and then burst into Miller's store with
guns drawn.(613)
The evidence is conflicting as to whether Miller thought
that the men breaking in with drawn revolvers were criminals or government officials. The
evidence is also conflicting about who fired first. In any case, Mr. Miller got off the
first good shot, killing one of the intruders. But Miller was outnumbered and captured.
The episode infuriated the people of Dallas. Newspapers
raged that a man who loved a "greasy negress" had shot a police officer. A lynch
mob attempted to extricate Mr. Miller from jail and hang him on the spot, but they did not
succeed. Mr. Miller was able to get a trial before being hanged. At the trial, where
defendant Miller was charged with murder, the prosecutor told the jury that Miller had
been illegally carrying a gun. Miller was convicted of murdering a police officer. Seeking
to stave off execution, Miller filed various appeals (all of which were rejected), finally
appealing to the United States Supreme Court. Miller's appeal to the Supreme Court claimed
that his Second, Fourth, Fifth, and Fourteenth Amendment rights had been violated.(614) In particular, Miller argued that (1) the Texas
statute against concealed carry was invalid; (2) the statute allowing arrest without a
warrant was also invalid; and (3) his alleged violation of the carry law should not have
been used as an argument by the prosecutor.
The Court disagreed and wrote that "the law of the
State [which forbade the carrying of dangerous weapons on the person did not] abridge the
privileges or immunities of citizens of the United States."(615)
Further, "the restrictions of these amendments [Second and Fourth] operate only upon
the Federal power."(616)
At first glance, Miller would seem to reiterate
what was well established by Cruikshank and Presser. However, the Court
muddied the waters by stating that "[i]f the Fourteenth Amendment limited the power
of the States as to such rights, as pertaining to the citizens of the United States, we
think it was fatal to this claim that it was not set up in the trial court."(617) The neglect to raise the Fourteenth Amendment at trial
was also fatal to Miller, and he was executed by the State of Texas.
If the problem with Mr. Miller's Fourteenth Amendment
argument was that the argument was not raised at the trial court, then the Fourteenth
Amendment issue must logically be one which has not been finally settled. The Miller
court had said that the Second, Fourth, and Fifth Amendments had no place in state courts,
but this language could be read as stating only that the Amendments are not directly
applicable to the states.
And, in fact, the Court was preparing to move away from
earlier holdings that the Fourteenth Amendment did not apply the Bill of Rights to the
states. Three years after Miller, the Court held the Fifth Amendment (one of the
amendments at issue in Miller) enforceable against the states.(618)
Was Miller one of the first hints that the Court was going to start taking the
Fourteenth Amendment more seriously after decades of malign neglect?
Halbrook, almost alone among twentieth century
commentators, characterizes the nonincorporation language of Cruikshank and Presser
as dicta.(619) Yet the nineteenth century commentators
who mentioned Presser and Cruikshank, as well as the Court in several
cases, habitually cited those cases for non-incorporation.(620)
On the other hand, not only did Miller leave the door open a crack, but the 1891
West Virginia Supreme Court case Workman applied the Second Amendment directly
against the state.(621) John Randolph Tucker, a very
highly regarded lawyer, apparently felt that Presser and Cruikshank
left enough room for him to argue to the Supreme Court--the year after Presser
was decided--that the whole Bill of Rights was enforceable against the states.(622) Further, in the years between Cruikshank and Presser,
a number of commentators, including Thomas Cooley, viewed the Second Amendment as
enforceable against the states.
If Miller leaves us unclear about the Fourteenth
Amendment, its Second Amendment implications are straightforward. Mr. Miller was a private
store owner and never claimed to be part of the Texas militia. Unlike the defendant in Presser,
Miller was not even acting as part of an unofficial private militia. Under the
anti-individualist theory of the Second Amendment, it should have been easy for the Court
to deny his Second Amendment claim on the grounds that, as a private citizen, he had
nothing to do with the Second Amendment. But instead, the Court simply said that Miller
had raised the claim against the wrong government by invoking the Second Amendment
directly against a state and at the wrong time (attempting post-trial to use the Second
Amendment as applied through the Fourteenth).
Miller's practical result, allowing the execution
of a man who defended himself against racist thugs, is hardly a shining example in civil
liberty. But the case, like the preceding Supreme Court cases involving the right to arms,
does treat the Second Amendment as a right of individuals.
2. Robertson v.
Baldwin
Three years after Miller v. Texas, the
Court heard Robertson v. Baldwin, a case involving merchant seamen who, after
jumping ship, were captured and impressed back into maritime service without due process.
The seamen argued that the terms of their service contract amounted to "involuntary
servitude" in violation of the Thirteenth Amendment.(623)
The Court disagreed, explaining that all Constitutional
rights (including the right to be free from involuntary servitude) include certain
exceptions. These exceptions did not need to be specifically noted in the Constitution,
since they were obvious and traditional:
The law is perfectly well settled that the first
ten amendments to the Constitution, commonly known as the Bill of Rights, were not
intended to lay down any novel principles of government, but simply to embody certain
guaranties and immunities which we had inherited from our English ancestors, and which had
from time immemorial been subject to certain well-recognized exceptions arising from the
necessities of the case.(624)
The Court went on to add that these exceptions constituted
such things as legislation prohibiting libel, which does not abridge the First Amendment
freedom of speech, and the prohibition of carrying concealed weapons, which does not
infringe the right to keep and bear arms.(625)
The Court's statement about the Second Amendment indicates
that the Court believed the Second Amendment protects an individual right. After all,
there were no statutes prohibiting state militias or the National Guard from carrying
concealed weapons. Concealed carry proscriptions are aimed only at private citizens, not
at state militias.
Standard Model authors cite Robertson and Miller
frequently. Anti-individualists tend to emphasize the holding in Miller,
while ignoring the implications of the point about a procedural default. Robertson
is rarely cited, since it is fatal to the theory that the Second Amendment does not
protect the right of individuals to carry guns.
B. The Collective Right Establishes a
Footing: Salina v. Blaksley
After its creation by a concurring judge on the Arkansas
Supreme Court in 1842, the anti-individual theory of the Second Amendment disappeared from
cases and treatises for the rest of the nineteenth century. Beginning in 1905, the
anti-individual theory gained a more secure footing in the Kansas Supreme Court decision Salina
v. Blaksley. The Salina court ruled that "right to
arms" meant only that the state militia, in its official capacity, and while in
actual service, could not be disarmed.(626) Although the
Kansas Supreme Court later moved away from Salina by declaring a local gun
control ordinance unconstitutional,(627) by then, Salina's
"collective right" theory (meaning, in this context, no right at all),(628) had spread far beyond the Kansas state line.(629)
The significance of Salina for this article is
that the Salina court was forced to reject or misdescribe every nineteenth
century source of authority which it used. (No eighteenth century or prior sources were
cited.) The Kansas court rejected Bliss v. Commonwealth(630) and the long line of cases holding that in order to
secure a well-regulated militia, individual citizens needed to be able to own and practice
with guns.(631) The court quoted a sentence from Bishop's
Statutory Crimes that "the keeping and bearing of arms has reference only to
war, and possibly also to insurrections."(632) The
quote was accurate, but the Kansas court neglected the language surrounding the quote and
other writings by Bishop, which made it clear that Bishop thought the right to arms
belonged to individuals, not the state.(633) Lastly, the
court quoted Commonwealth v. Murphy, an 1896 decision which had upheld,
against a state constitutional claim, a Massachusetts law (similar to the Illinois law
upheld by the U.S. Supreme Court in Presser) which banned mass parades with
weapons.(634) The Massachusetts court had written:
"The right to keep and bear arms for the common defense does not include the right to
associate together as a military organization, or to drill and parade with arms in cities
or towns, unless authorized so to do by law."(635)
But of course, the Massachusetts holding that the right to arms does not authorize
individuals to behave in a certain manner is not the same as the Kansas holding that there
is no individual right at all.
Ultimately, the Salina holding stands on the
Kansas court's textual analysis of the implications of the Kansas arms right provision and
of the Second Amendment. The Second Amendment was not at issue in the case, and was simply
analyzed as a guide to textual analysis of the Kansas provision. No amount of textual
analysis, however, can explain why the framers of the Kansas Constitution, in the middle
of an Article titled "Bill of Rights," suddenly inserted a provision that had
nothing to do with rights, but which instead tautologically affirmed a power of the state
government: in essence, the militia is under the complete power of the state
government.(636)
Salina's paragraph of dicta about the meaning of
the Second Amendment laid the foundation for a late twentieth century anti-individual
theory of the Second Amendment, a theory whose proponents often insist is the only
possible interpretation. The record of the nineteenth century demonstrates just the
opposite.
1. Some thoughts about David Williams
David Williams is the twentieth century exponent of the
most sophisticated version of the collective rights theory of the Second Amendment.
According to Williams, the Second Amendment was, as the nineteenth century cases and
commentators agreed, intended to ensure that "the people" of the United States
would be able to overthrow federal tyranny. According to Williams, the sole purpose of the
Second Amendment was a well-regulated militia; self-defense had nothing to do with it. The
right to arms continues to exist, wrote Williams, only as long as do the conditions on
which the Second Amendment's republican theory is premised: only as long as the people are
universally trained to virtue through state militia service; and only as long as the
people are unified, homogenous, and share a common vision of the good, so that they could
rise as a single body to overthrow a tyrant. Since the diverse Americans of the late
twentieth century do not fit the criteria of the republican "people," there is
currently no Second Amendment right to arms, although the right could reappear if the
people changed so that they once again fit the republican model.(637)
Williams' theory has been criticized on three major
grounds. First, his theory allows a constitutional right to vanish as a result of
government inaction (failure to conduct militia training).(638)
Second, his theory is ahistorical. The Framers of the Second Amendment were well aware
that "the people" of the early American Republic were never as unified as in the
republican ideal that Williams posits. If the Framers and the American people would create
a Second Amendment without need for a utopian type of "people," why should we
now impose utopian conditions precedent on the Second Amendment?(639)
Indeed, Williams admits that the virtuous people of his theory never existed, but
incongruously asserts that the Second Amendment cannot be given force unless his Platonic
ideal becomes incarnate.(640) Third, any change for the
worse in the character of any actor named in the Constitution (e.g., "the
people," or "the House of Representatives") is not a valid reason for
negating a portion of the Constitution.(641) The Bill of
Rights was written not only for an age of virtue, but for potential future ages of
depravity, when controls on government--and reminders of virtuous ideals--would be all the
more necessary.(642)
But it is nineteenth century legal history that provides
the most powerful critique of Williams' theory. During that century, according to
Williams, the Second Amendment right to arms should have vanished. Instead, the Amendment
grew stronger than ever. Williams points to the various forms of American disunity
today--such as divisions regarding race, religion, ethnicity, and sexual orientation--as
proof that Americans of the late twentieth century are no longer the homogenous and
unified Americans of the late eighteenth century. While we should not underestimate the
centrifugal pull of multi-culturalism, and its harmful effect on American national unity,(643) American disunity today is trivial compared to the
disunity associated with the Civil War. A civil war is, after all, about the most profound
sign of disunity possible.
Even after the North defeated the South, the country
experienced great difficulty restoring its unity. The end of the Civil War was the
beginning of a lower-grade, often violent struggle between white supremacists and freedmen
in the South. And not long after the struggle ended, with the triumph of white supremacy,
America found itself in the midst of another violent struggle--this one taking place all
over the nation--as workers literally fought for their rights and capital holders
suppressed the workers violently. America in the last half of the nineteenth century was
divided on sectional, racial, and class lines to a much more profound degree than America
is divided today.
And what happened to the Second Amendment during this
period of very unrepublican disunity? The elected representatives of "the
people" made the Second Amendment stronger than ever.(644)
For over a decade, Congress worked energetically to protect the Second Amendment from
private and state government interference. Further, the state legislatures ratified a
Fourteenth Amendment intended to guarantee a right to own weapons for personal defense.(645) Commentator after commentator and court after court
affirmed that the Second Amendment was a current, enforceable guarantee of the right of
every American citizen to own weapons.(646) Almost all of
these cases and commentaries were contemporaneous with the turmoil associated with the
Civil War, the Reconstruction, or the labor wars. If the Second Amendment survived and
thrived through all the disunity of the second half of the nineteenth century, and also
survived the abandonment of the pretense of regular militia training by most states after
the Civil War, then it is hard to believe that the Second Amendment is such a feeble
creature that it can be felled by the relatively minor modern disunities of the 1990s.
2. Some thoughts about Carl Bogus
In his 1998 article, The Hidden History of the Second
Amendment, Carl Bogus follows in the path of David Williams(647)
and attempts to seriously engage original sources.(648)
Although Bogus writes in opposition to the Standard Model, his article makes an important
contribution by highlighting the importance of the militia in the South in crushing and
deterring slave insurrections.(649) With the exception of
Robert Cottrol and Ray Diamond,(650) Standard Model
authors have neglected this unattractive aspect of the militia.
Unfortunately, Bogus attempts to turn a useful
contribution to scholarship about the militia into a tool that single-handedly overturns
the individual rights Standard Model. Bogus' history is plainly defective in its reading
(and invention) of the eighteenth century record, and the defects become all the clearer
in light of the nineteenth century. Because Bogus' article addresses eighteenth century
sources not previously discussed in this article, it is now necessary to examine these
sources.
Bogus makes the following argument: (1) the militia in the
South was frequently used to suppress slave insurrections, and for slave patrolling to
deter insurrection or flight;(651) and (2) at the
Virginia ratifying convention, opponents of the proposed Constitution, such as Patrick
Henry, worried that the federal powers over the militia would prevent the states from
calling out their militias to suppress slave insurrections.(652)
From these uncontested facts, Bogus then makes a leap of reasoning to conclude that
Madison wrote the Second Amendment solely to affirm the power of states to use their
militias to crush slave revolts.(653)
One problem with Bogus' thesis is that it ignores the
evidence that even the hard-core Virginia slave owners, such as Patrick Henry, who wanted
a strong militia to protect them from the slaves, also wanted a strong militia
for protection from the federal government.(654) Bogus
tells the reader three times that George Mason had three hundred slaves;(655)
but Bogus never tells the reader that Mason wanted an armed white populace not just to
control slaves, but because without arms, the white population could more easily be
enslaved.(656)
Further, Bogus underplays the demand for an arms right
that came from the Northern states, where protection of slavery was not an important
issue. Half a year before the Virginia convention had met, the minority of the
Pennsylvania ratifying convention had demanded a Bill of Rights, including:
7. 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; and as standing
armies in the time of peace are dangerous to liberty, they ought not to be kept up; and
that the military shall be kept under strict subordination to and be governed by the civil
power.
8. The inhabitants of the several states shall
have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all
other lands in the United States not enclosed, and in like manner to fish in all navigable
waters, and others not private property, without being restrained therein by any laws to
be passed by the legislature of the United States.(657)
Four months before Virginia met, Massachusetts ratified
the Constitution, after hard-line federalists turned back an amendment authored by Samuel
Adams,
that the said Constitution be never 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; or to raise standing armies, unless when necessary for the defence of the
United States . . . .(658)
Likewise, while Virginia was still debating the
Constitution, New Hampshire ratified the document and recommended amendments, including
that "Congress shall never disarm any citizen, unless such as are or have been in
actual rebellion."(659) New York's convention
concluded about a month after Virginia's, and New York ratified while requesting
amendments, inter alia, "[t]hat 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 defence of a free state."(660) Rhode Island, which refused to ratify until 1790,
copied New York's right to arms demand.(661)
Long before the United States Constitution had even been
proposed, a right to arms had already been constitutionally recognized--north of the
Mason-Dixon line--in the Pennsylvania Constitution,(662)
the Vermont Constitution,(663) and (more restrictively)
in the Massachusetts Constitution.(664) Bogus entirely
neglects to mention the Pennsylvania dissent and the Samuel Adams proposal in
Massachusetts. He provides no explanation for why the right to arms amendment, supposedly
motivated only by Southern slave concerns, was demanded by three Northern state
conventions where slavery was insignificant.(665)
Thus, Bogus errs by giving the entire credit for the
Second Amendment to Virginia and the rest of the South, even though demands for a right to
bear arms came first from the North, and such a right was already constitutionally
established in three northern states.(666) Bogus further
errs by emphasizing only one important Southern interest in the militia (suppression of
servile insurrection), while underestimating other important Southern and Northern
interests in the militia (such as deterring centralized tyranny enforced by a standing
army, or promoting civic virtue).(667) Moreover, Bogus
ignores the human rights tradition--of which Madison's closest political ally and
life-long friend Thomas Jefferson was an important part--which promoted the right to arms
for reasons totally unconnected to the militia.(668)
The Standard Model scholarship has provided abundant
eighteenth century historical evidence that one purpose of the state militias was to
resist federal tyranny, should the other checks and balances in the government fail.
Another purpose was to ensure that the people would be armed so that the militia might be
effective.(669) But Bogus avoids discussing or quoting
any of these many statements by dismissing them as "soapbox rhetoric."(670) He makes the astonishing claim that, despite having
recently fought a revolution to overthrow a tyrannical government, the Framers of the
Constitution did not believe in the legitimacy of armed resistance to a tyrannical
government (and hence, the Second Amendment could not protect the arming of the populace
as a last-resort check on despotism).(671) Bogus supports
this claim by stringing together a litany of quotes showing that the Framers (Jefferson
excepted) were horrified by Shays' Rebellion.(672) Bogus
asserts that because the Framers were against Daniel Shays, they must have been against
the general principle of revolution against tyranny.(673)
To the contrary, Shays' Rebellion lacked two of the essential elements which, according to
the Declaration of Independence, were necessary justifications for a legitimate
revolution. First, the policies of the Massachusetts government, which so aggrieved Shays
and his fellow farmers in the western part of the state, may have been mistaken and
burdensome, but they were not an attempt to enslave the people of Massachusetts. In
contrast to the policies of King George III, nobody could seriously describe the polices
of the Massachusetts government as "all having in direct object the establishment of
an absolute Tyranny."(674)
Second, the Massachusetts government, in contrast to King
George's government, was a republican one in which Shays and his fellows were represented.
When the American colonists had "Petitioned for Redress in the most humble
terms . . . [and] been answered by repeated injury,"(675)
the colonists' peaceful remedies were at an end; they had no representation in Parliament.
To accept Bogus' theory that the Founders were no longer "insurrectionists"
(Bogus' term for justifiable revolution against tyranny), Bogus requires us to believe
that the condemnation of Shays' Rebellion proves that the Founders had turned against the
very political theory to which they had pledged their "Lives," their
"Fortunes," and their "sacred Honor."(676)
An explanation which does not require the reader to believe that the Founders were so
ideologically inconsistent is simply that the Framers thought revolution justified in 1776
against King George, but not in 1787 against Massachusetts. After all, if a speaker
condemns an unjustified use of force in purported self-defense, the condemnation does not
necessarily mean that the speaker is opposed to forceful self-defense in all
circumstances.
The theory that the Framers disapproved of revolt against
tyranny is particularly erroneous in the case of James Madison, because in Federalist
No. 46 Madison sketched out a scenario in which the necessarily small
federal standing army would be opposed by "a militia amounting to near half a million
of citizens with arms in their hands" which would be able to defeat a tyrannical
standing army.(677) How could tyranny overcome "the
advantage of being armed, which the Americans possess over the people of almost every
other nation"?(678) Bogus labors mightily to undo
the obvious implications of these words, and in the process offers some useful insights.
For example, Bogus observes that Madison was writing arguendo, since Madison had
made it clear that he expected that the federal government would never attempt to rule
tyrannically by military force.(679) But neither this
point, nor Bogus' other points (such as the fact that the Federalist essays were written
in a hurry),(680) undermine the basic fact that Madison
obviously thought armed militia resistance to American federal tyranny to be
legitimate-even though Madison never expected the dire event to take place.
That Madison apparently saw the militia as potentially
useful in resisting tyranny cannot be squared with Bogus' assertion that the Second
Amendment was only about protecting the militia for slave patrolling and slave
controlling; nor can Madison's words be squared with Bogus's assertion that except for
Jefferson none of the Framers were "insurrectionists." Bogus erroneously states
that "one cannot read The Federalist Number 46 as an explanation of the
Second Amendment because, of course, it would be several more years before Madison would
write that provision."(681) Actually, the interval
from the publication of Federalist No. 46 (January 29, 1788) to
Madison's introduction of the Bill of Rights in Congress (June 8, 1789) was less than a
year and a half.(682) What evidence is there in this
interval that Madison abandoned his last "insurrectionist" thoughts? In support
of his statement that the Federalist No. 46 is not an explanation of the Second
Amendment, Bogus argues that Madison's "support for a strong federal government and
his fear of anarchy probably both increased."(683)
Bogus further notes that one of Madison's biographers concluded that Madison liked the
Constitution even better after he had finished writing the Federalist.(684) True enough, but liking the Constitution even more
does not mean that Madison loved civil liberty any less.
In addition, writes Bogus, "The full impact of Shays'
Rebellion and lesser insurrections had probably not been fully absorbed."(685) Bogus provides no support for this claim, and it is
preposterous. As Robert Rutland, one of Madison's biographers on whom Bogus does not rely,
notes, Shays' Rebellion was precisely the event that Madison used to convince George
Washington to attend the Philadelphia Convention that Madison was trying to organize.(686) Rutland also observes that the Philadelphia Convention
opened in an atmosphere of panic engendered by Shays' Rebellion, and Madison himself found
the Rebellion "distressing beyond measure to the zealous friends of the
Revolution."(687) But if we are to believe Bogus,
the very Founder who organized this convention which was so stricken by panic over Shays
that it created an entirely new form of government, was himself not feeling "the full
impact" of the Rebellion. Madison was apparently a rather odd person: he used Shays'
Rebellion to convince America's elite that a new government was desperately needed, and
led a campaign that spanned the continent in order to get the new government approved; but
perhaps suffering from some form of psychic numbing, Madison never felt the full impact of
Shays' Rebellion until the next year.
Finally, writes Bogus, Madison's insurrectionary
inclinations from Federalist No. 46 cannot be carried forward seventeen
months into the Second Amendment because, in the interval, the "rhetoric that had
been so useful in stimulating revolution, such as romanticizing the militia and railing
against the evils of a standing army, must have begun to have a different effect on
Madison as it became the tool of anti-Federalist opposition."(688)
Again, there is no evidence for Bogus' attempted mind reading.
The historical record makes it abundantly clear that to
James Madison, "the rhetoric" about the virtues of militias and the terrors of
standing armies was not a mere talking point that he abandoned once his cherished
Constitution became operative. In 1801, the political party created by Jefferson and
Madison took power after winning the election of 1800--despite the problems caused by the
election being thrown into the House of Representatives by Vice-President Aaron Burr's
chicanery. "What had saved America from the spectacle of bloodshed?" asks Robert
Rutland, the compiler of the Madison Papers.
In Madison's mind the answer was crystal-clear:
the lack of a standing army. He never expected the anti-Jefferson forces to win, he
confessed to the newly elected president, for it would have been impossible to oppose the
people's will "without any military force to abet usurpation." Ever the
optimist, Madison said the whole experience had been beneficial. "And what a lesson
to America & the world, is given by the efficacy of the public will when there is no
army to be turned agst. it!"(689)
In his First Inaugural Address, in March 1809, President
Madison urged Americans during a period leading up to war with Great Britain, "to
keep within the requisite limits a standing military force, always remembering that an
armed and trained militia is the firmest bulwark of republics--that without standing
armies their liberty can never be in danger, nor with large ones safe."(690) Not only did Madison still prefer militias to standing
armies, he obviously saw the militia as useful for something other than catching
slaves--namely protection against foreign invasion.
The English Declaration of Rights of 1689 proclaimed
"[t]hat the subjects which are Protestants may have arms for their defence suitable
to their conditions and as allowed by law."(691)
Bogus argues that this provision "did not give Protestants an individual right to
have arms; it decreed that Parliament, and not the Crown, would determine the right of
Protestants to have arms."(692) Madison, Bogus
informs us, "was almost certainly influenced by the right to arms provision of the
Declaration," and "Madison followed Parliament's solution" by not inserting
an individual right into the Second Amendment.(693)
"We do not know why Madison chose to draft his
provisions precisely this way. He did not explain his thinking in any speech or letter
that has come to light," writes Bogus.(694)
Actually, Madison did explain his drafting choices, and that explanation makes it clear
that Madison (unlike Bogus) viewed the English Declaration as protecting an individual
right, and that Madison wanted the American arms right to be broader and more protective
of individual rights than was the English version.
Madison's notes for his speech in Congress introducing the
Bill of Rights explained that the proposals were to deal with the "omission of guards
in favr. of rights & libertys."(695) His
amendments "relate 1st. to private rights." A Bill of Rights was
"useful--not essential." There was a "fallacy on both sides--especy as to
English Decln. of Rts." First, the Declaration was a "mere act of parlt."
Second, the English Declaration was too narrow; it omitted certain rights and protected
others too narrowly. In particular, there was "no freedom of press--Conscience."
There was no prohibition on "Gl. Warrants" and no protection for "Habs.
corpus." Nor was there a guarantee of "jury in Civil Causes" or a ban on
"criml. attainders." Lastly, the Declaration protected only "arms to
Protestts."--apparently too narrow a slice of population.(696)
And there is more evidence, apparently hidden from Bogus,
about what Madison's Bill of Rights meant. A few days after Madison introduced the Bill of
Rights, Madison's political ally Tench Coxe (who would serve President Madison's
administration as the Purveyor of Public Supplies, in charge of procuring arms for the
militia) wrote the most comprehensive section-by-section exposition on the Bill of Rights
to be published during its ratification period. Regarding the Second Amendment, Coxe
explained:
As civil rulers, not having their duty to the
people, duly before them, may attempt to tyrannize, and as the military forces which shall
be occasionally raised to defend our country, might pervert their power to the injury of
their fellow-citizens, the people are confirmed by the next article in their right to keep
and bear their private arms.(697)
Coxe sent a copy of his essay to Madison, along with a
letter of the same date.(698) Madison wrote back
acknowledging "your favor of the 18th. instant. The printed remarks inclosed in it
are already I find in the Gazettes here [New York]."(799)
Madison approvingly added that ratification of the amendments "will however be
greatly favored by explanatory strictures of a healing tendency, and is therefore already
indebted to the co-operation of your pen."(700)
Madison respected Coxe's ceaseless work on behalf of the proposed Constitution in 1787-88,
and liked some of Coxe's federalist essays so much that Madison successfully urged
Virginia newspapers to reprint them.(701) Of course,
Madison's appreciative endorsement of Coxe's essay on the Bill of Rights did not
specifically say "I endorse every single statement made in your essay." On the
other hand, if Madison disagreed with the prolific author's analysis, Madison might have
been expected to correct him, so as to prevent the propagation of further errors.
Historians may debate how much weight to give Coxe's explication (which was uncontradicted
during the ratifying period) and Madison's approving letter to Coxe. But it is astounding
that Bogus, in a hundred-page article filled with speculation about Madison's supposed
hidden thoughts, fails even to mention some rather notable written evidence about what
Madison and his contemporaries really thought.
Bogus' theory is also self-contradictory. He asserts that
Madison wrote the Second Amendment the way he did because, "Specifically, Madison
sought to assure that Congress's power to arm the militia would not be used to disarm the
militia."(702) But then Bogus informs us that
Congress can, using its power to "organize" the militia, declare that the
militia consists only of a small group (such as the modern National Guard) and disarm
everyone else.(703) Bogus thus joins Garry Wills in the
assertion that the Second Amendment effectively means nothing at all. But while Wills
considers Madison a devious trickster--with a clever ploy of draftsmanship that meant
nothing and fooled the entire nation(704)--the
implication drawn from the Bogus article is that Madison was a fool; Madison supposedly
drafted an amendment that was intended to prevent Congress from disarming the state
militias; but despite Madison's amendment, Congress can do exactly what the amendment was
designed to prevent.
Here, Bogus is directly contradicted by the historical
record. Madison's original Second Amendment concluded with the provision "but no
person religiously scrupulous shall be compelled to bear arms."(705)
Although Bogus notes that Massachusetts Congressman Elbridge Gerry wanted Madison's clause
narrowed,(706) Bogus does not inform the reader of
Gerry's specific objection: "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."(707) In other words, Representative Gerry was afraid that
Congress could use the religious exemption as a pretext to exclude large numbers of people
from the militia. Representative Gerry was attempting to ensure that Congress would not
have the power to do what Bogus asserts Congress can do: to replace the universal militia
with a select militia, and to disarm everyone not in the select militia.
Bogus' unsupported claims to know what Madison thought are
buttressed by claims to know what everyone else thought. We are informed by Bogus that
"Madison's colleagues in the House and Senate almost certainly considered the Second
Amendment to be part of the slavery compromise."(708)
But Bogus provides no evidence, other than to list the slavery compromises that were
included in the original Constitution.(709)
Putting aside evidence from the Founding Era, a powerful
refutation of Bogus' thesis can be found in the Appendix to George Ticknor Curtis' Constitutional
History of the United States.(710) Among Curtis'
appendices is the full text of Anti-Slavery Tracts published around 1833.(711) The tract is an abolitionist argument that the United
States Constitution "is a pro-slavery instrument."(712)
The tract analyzes in detail the text of the Constitution, the intent of the Framers, the
implementation of the Constitution by Congress, and the constitutional law decisions of
the Supreme Court, all of which support slavery, according to the tract.(713)
In each of the four parts of analysis, the tract points to Article I, section 8,
which gives Congress the authority to call forth the militia to suppress insurrection. The
tract even quotes from the Virginia ratifying convention, in which George Nicholas and
James Madison both argued that Article I, section 8 does not diminish a state's
authority to use its own militia to crush an insurrection; rather, the clause allows
Congress to call forth the militias from other states, in order to assist the suppression
of the insurrection.(714)
Yet while Article I, Section 8 is, quite plausibly,
shown to be a proslavery part of the Constitution, the Second Amendment is never mentioned
in that tract.(715) If, as Bogus argues, the only
important reason for the Amendment was to suppress slave revolts, it is rather strange
that the antislavery, anticonstitution tract never mentioned the Second Amendment. That
one purpose of the militia was to suppress "servile insurrection," and that the
Richmond Convention debates discussed this militia purpose, was not "hidden,"
but was perfectly obvious to antebellum America. But as for the Second Amendment, it was,
so far as the known record indicates, never used to bolster the argument (from either the
abolitionist or the slave-owning side) that the Constitution was meant to protect slavery.
To the contrary, the Second Amendment appeared in the antebellum writings of Lysander
Spooner and Joel Tiffany for just the opposite proposition: that the Second Amendment was
incompatible with slavery.(716) If the Second Amendment
were a slavery-protecting device, then the Reconstruction Congresses would likely have
treated it with the disdain reserved for other constitutional theories--like the doctrine
of nullification and interposition--that had been invoked to shield slavery from federal
interference. Congress, of course, did just the opposite; Congress venerated the Second
Amendment as a right of individual freedmen to protect themselves against the Ku Klux Klan
and other descendants of the slave patrols.(717)
Like Garry Wills' theory that the Second Amendment was a
fraud known only to James Madison,(718) Carl Bogus' Hidden
History is contrary to the writings of the Founders and to the interpretive record of
the century following the creation of the Second Amendment. One testament to the
overwhelming evidence for the individual rights Standard Model is that opponents of the
model must rely on theories which claim to read the secret thoughts of James Madison;
secret thoughts which are claimed to be more important than what James Madison and his
allies actually said and wrote.
Following a period of scholarly neglect in mid-century,
the Second Amendment is currently enjoying a renaissance of scholarly interest as the
twentieth century concludes. As scholars attempt to provide constitutional guidance for
the twenty-first century, it is worth remembering the intellectual heritage of the
nineteenth century discussed in this article.
1. Who is protected by
the Second Amendment?
This is the easiest question; the answer is "the
people of the United States." The right belongs to all people, not just to militia
members or to state governments. According to Robertson, there are implicit
exceptions, such as prisoners. Women were not subject to militia duty in the nineteenth
century, but no one appears to have argued that women could legally be barred from owning
and carrying guns.
2. Does the
Second Amendment limit the states?
This is the hardest question. Presser and the
dicta in Cruikshank suggest not, but these two cases are part of a period of
constricted Fourteenth Amendment interpretation which the Supreme Court rejected in the
twentieth century. The new research, conducted by scholars such as Richard Aynes and
Stephen Halbrook, into the Congressional creation of the Fourteenth Amendment provide
additional justification for the rejection of the Slaughter-House/Cruikshank/Presser
line of cases as inconsistent with the original intent of the Fourteenth Amendment--or at
least the original intent of the Radical Republicans who created and promoted the
Amendment. Perhaps the twenty-first century will put an end to over 125 years of
result-oriented Fourteenth Amendment jurisprudence and simply make the whole Bill of
Rights enforceable against the states through the Privileges and Immunities Clause. Such a
result would be more logically defensible than the current practice, under which
incorporated "due process" includes everything in the first nine articles of the
Bill of Rights except the Second and Third Amendments and the right to grand jury
indictment.
3. What kind of "arms"?
The dominant line of nineteenth century interpretation
protected ownership only of weapons suitable for "civilized warfare." This
standard was adopted by the U.S. Supreme Court in the 1939 United States v.
Miller case.(719) There, the Court allowed
defendants who never claimed to be part of any militia (they were bootleggers) to raise a
Second Amendment claim. But the Supreme Court rejected the federal district court's
determination that a federal law requiring the registration and taxation of sawed-off
shotguns was facially invalid as a violation of the Second Amendment. Rather, said the Miller
Court, a weapon is only covered by the Second Amendment if it might contribute to the
efficiency of a well-regulated militia. And the Court would not take judicial notice of
militia uses for sawed-off shotguns.(720) The case was
remanded for trial (at which the defendants could have offered evidence that sawed-off
shotguns have utility in a militia context). However, the trial was never held because the
defendants disappeared while the government's appeal of the indictment dismissal was
pending.
A minority line of nineteenth century arms rights
analysis--adopted in this century, for example, by the Oregon Supreme Court--goes further.
This analysis protects not just militia-type weapons, but also weapons which are useful
for personal defense, even if not useful in a military context. Thus, the Oregon state
constitution's right to arms was held to protect the possession of billy clubs and
switchblades--weapons which were pointedly excluded from protection by the civilized
warfare cases.(721)
With the civilized warfare test as the constitutional
minimum, efforts to ban machine guns or ordinary guns that look like machine guns
(so-called "assault weapons") appear constitutionally dubious. These rifles are
selected for prohibition because gun control lobbies claim that the rifles are
"weapons of war."(722) This claim, if true,
amounts to an admission that the rifles lie at the core of the Second Amendment.
In the 1990s, once people understand that "assault
weapons" are firearms that are cosmetically threatening, but functionally
indistinguishable from other long guns, they may be more willing to accord these arms a
place within the right to keep and bear arms. Machine guns, in contrast, really are
functionally different. Machine guns are rarely used in crime; and lawfully possessed
machine guns, which must be registered with the federal government, are essentially absent
from the world of gun crime.(723) Nevertheless, even many
people who consider themselves strong Second Amendment supporters cannot bear the thought
of a constitutional right to own machine guns.
The civilized warfare test, however, offers no way out of
this problem. Accordingly, some of the twentieth century Standard Modelers propose
alternative tests. For example, Don Kates, relying on commentary stemming from a 1687
English case which allowed the carrying of arms in public places for protection so long as
the circumstances of the carrying were not apt to terrify the populace, proposes a test
with a prong that excludes weapons which "terrify" the public.(724)
Stephen Halbrook suggests that "artillery pieces,
tanks, nuclear devices and other heavy ordinances are not constitutionally protected"
arms, nor are "grenades, bombs, bazookas and other devices . . . which
have never been commonly possessed for self-defense."(725)
But the Halbrook test sidesteps the fact that militia uses, not just personal defense
uses, are part of the core of the Second Amendment. Moreover, the Halbrook test could
allow governments to ban new types of guns or weapons, since those weapons, being new,
"have never been commonly possessed for self-defense."(726)
Further, the test could allow Second Amendment technology to be frozen. Such a ban would
be like the government claiming that new communications devices were unprotected by the
First Amendment simply because they have never before been commonly used for speech.
Just as the civilized warfare test protects firearms that
many persons want excluded from the Second Amendment, the test excludes firearms that many
persons want to be included. The civilized warfare cases protected large handguns, but in
some applications excluded small, highly concealable handguns. This would suggest that
modern bans on small, inexpensive handguns might not violate the Second Amendment. On the
other hand, small handguns, such as the Colt .25 pistol, were used by the United States
military during the Second World War.(727) Of course,
anyone using this test to make such an argument must also accept the flip side of the
civilized warfare coin: "assault weapon" prohibition is plainly
unconstitutional.
The nineteenth century minority theory, however, would
recognize small, relatively inexpensive handguns as highly suitable for personal defense
and accord them Second Amendment protection regardless of their militia utility. Twentieth
century constitutional law reflects a special concern for problems of minorities and the
poor that was not present in nineteenth century law. Since a small handgun may be the only
effective means of protection which is affordable to a poor person, and since the poor and
minorities tend to receive inferior police protection, modern Equal Protection analysis
might find some problems with banning inexpensive guns, even if one sets aside the Second
Amendment.(728) But under the main nineteenth century
line of cases, opponents of banning small handguns must overcome the presumption in those
cases that small handguns are not suitable militia weapons; perhaps the frequent and
successful use of small handguns in twentieth century partisan warfare against the Nazis
and other oppressive regimes offers one potential line of argument.
Twenty-first century jurisprudence might update the
civilized warfare test by changing the focus from the military to the police. The modern
American police, especially at the federal level, resemble in many regards the standing
army which so concerned the founders. While the American army is geared towards overseas
warfare, the police are oriented towards the type of internal order functions (e.g.,
suppression of riots) which were among traditional militia duties. Accordingly, the
twenty-first century question "what are suitable militia-type arms?" might be
answered, "arms that are typical of, or suitable for, police duty."
By the modernized test, high-quality handguns (both
revolvers and semiautomatics) would lie at the core. Smaller, less expensive handguns
(frequently carried by police officers as back-up weapons, often in ankle holsters) would
also pass the test easily. Ordinary shotguns and rifles (often carried in patrol cars)
would also be protected. Machine guns and other weapons of war are not currently ordinary
police equipment, although they are becoming common in special attack units.(729)
Finally, Noah Webster's dictionary reminds us that
"arms" are not just weapons. "Arms" also includes defensive armor.(730) This suggests very serious constitutional problems
with proposals to outlaw possession of bullet-resistant body armor by persons outside the
government.
4. Can the carrying of
weapons be controlled?
Thirty-one states now have laws allowing ordinary citizens
to carry firearms for protection.(731) Thirty of those
states require a licensing process, and some of them require training. Vermont allows
concealed carry without a license. While the concealed carry licensing laws are supported
by the National Rifle Association (NRA), other gun rights groups, such as Gun Owners of
America (GOA), argue that requiring a license for concealed carry is no more legitimate
than requiring a license to go to church or to buy a book.(732)
The GOA position is consistent with the first gun rights
case decided in the United States, Bliss v. Commonwealth.(733)
But the jurisprudence of the nineteenth century from then onward is on the other side. The
weight of nineteenth century precedent would allow severe restrictions or perhaps even a
complete prohibition on concealed carry. Consequently, a fairly administered licensing
system would pose no constitutional problem under the main line of nineteenth century
cases.
But that same line of precedent also affirms the right to open
carry, and some of that precedent suggests that even a licensing procedure for open carry
would be unconstitutional. In the 1990s, this has unacceptable policy implications for
some people; the thought of seeing a person on the street (other than a policeman) wearing
a handgun in a holster may be disturbing. Thus, concealed carry laws (like laws allowing
the sale of adult magazines and videos in adults-only stores, but barring the depiction of
adult content in storefronts or other public venues) reflect 1990s sensibilities. As a
legacy of nineteenth century constitutional interpretation, many states, especially in the
West, have no prohibition on open carry, even though the right to open carry is rarely
exercised in urban areas. Arizona, however, not only has no law against open carry, but
also allows people to exercise that right. If one looks carefully, one can find ordinary
people walking down the streets of Phoenix or Tucson with unconcealed guns in belt
holsters.
Although the issues of the legitimacy of licensing and of
concealed vs. open carry will continue to be debated, the nineteenth century jurisprudence
reminds us that the right to carry in some form is guaranteed by the right to keep and
bear arms.
5. Repealing or
ignoring the Second Amendment
In the twentieth century, some courts have followed the
lead of Buzzard and Salina in reinterpreting the Second Amendment or a
state analogue as guaranteeing no right at all.(734)
Other courts have gone almost as far, recognizing an individual right to arms, but
upholding any gun law short of a total prohibition on all guns--so long as the law passes
the rational basis test, leniently applied.(735) Brooklyn
Congressman Major Owens has introduced legislation to repeal the Second Amendment. The
nineteenth century helps us remember why so many otherwise law-abiding gun owners will not
obey the prohibitory or near-prohibitory laws made possible by the repeal or judicial
nullification of the right to keep and bear arms.
Cruikshank teaches us that the right to bear
arms, while guaranteed by the Constitution, was not created by the Constitution. Rather,
it "is found wherever civilization exists."(736)
Thus, regardless of what becomes of the Second Amendment, the right to arms will not be
negated. In a 1993 article in The Public Interest, attorney Jeffrey Snyder wrote:
Those who call for the repeal of the Second
Amendment so that we can really begin controlling firearms betray a serious
misunderstanding of the Bill of Rights. The Bill of Rights does not grant rights to the
people, such that its repeal would legitimately confer upon government the powers
otherwise proscribed. . . .
. . . The repeal of the Second Amendment would
no more render the outlawing of firearms legitimate than the repeal of the due process
clause of the Fifth Amendment would authorize the government to imprison and kill people
at will. A government that abrogates any of the Bill of Rights, with or without
majoritarian approval, forever acts illegitimately, becomes tyrannical, and loses the
moral right to govern.
This is the uncompromising understanding
reflected in the warning that America's gun owners will not go gently into that good,
utopian night: "You can have my gun when you pry it from my cold, dead hands."
While liberals take this statement as evidence of the retrograde, violent nature of gun
owners, we gun owners hope that liberals hold equally strong sentiments about their
printing presses, word processors, and television cameras. The republic depends upon
fervent devotion to all our fundamental rights.(737)
This was a radical and provocative statement in 1993, but
conventional wisdom to virtually every nineteenth century legal commentator and judge who
wrote about the right to arms.(738) Persons who loathe
the idea of firearms possession by anyone except government employees must understand the
depth and intensity of the moral position they are setting out to destroy.
6. The First Amendment
During the nineteenth century, speech in America was
generally free.(739) But the assassination of President
McKinley in 1901 sparked increasingly severe controls on core political speech--especially
speech by socialists and anarchists criticizing the government.(740)
Repression grew even more severe as a result of World War I, with almost any critic of the
war at risk for federal prosecution.(741) Not until many
decades later, in Brandenburg v. Ohio, did the Supreme Court fully
defend the core of the First Amendment, allowing speakers to denounce the legitimacy of
the central government, even to suggest that it should be overthrown, so long as the
speech did not incite violence.(742)
Perhaps one reason that it took so long for the Court and
the American public to come to this view of the First Amendment was that the First
Amendment was examined in isolation. Had the First Amendment examination looked next
door--at the Second Amendment and its nineteenth century interpretive tradition--the
examination would almost immediately have discovered that the core of the Second Amendment
was retaining the ability of the American people to overthrow a tyrannical central
government. If the Framers could recognize that democratic elections, checks and balances,
and the rest of the Constitution's safeguards might one day fail, if the Framers could
contemplate the risk that the federal government might one day break the bounds of the
Constitution and become a tyranny, and if the Framers could guarantee the right to resist
tyranny by guaranteeing the possession of arms through the Second Amendment, then a
fortiori, speech which merely questioned the legitimacy of the government would not
be criminal.
The leading free speech advocates of the early twentieth
century understood this point. Before there was an American Civil Liberties Union, there
was a Free Speech League, led by Theodore Schroeder. Schroeder's group was the first in
American history to defend the rights of all speakers on all subjects, based on the
principles of the First Amendment. Journalist H.L. Mencken wrote that Schroeder had
"done more for free expression in America than any other."(7443
Schroeder's 1916 book Free Speech for Radicals
used the Second Amendment to bolster his argument for a strong First Amendment:
[U]nabridged free speech means the right to
advocate treason (or lesser crimes) so long as no overt criminal act is induced as a
direct consequence of its advocacy. We must inquire how far this conclusion is confirmed
by the constitutional guarantee to carry arms.
Again the obvious import is to promote a state
of preparedness for self-defense even against the invasions of government, because only
governments have ever disarmed any considerable class of people as a means toward their
enslavement. It remains to ask how this view is supported by the historic conflicts
preceding our American Revolution.
Our revolution only extended the principles of
freedom of the English revolution of 1688. At that time, to preclude the government from
going into rebellion against the people and to check its power, the revolutionists planted
themselves firmly upon these propositions: (1) The illegality of raising money for the use
of the Crown without grant of Parliament; (2) The illegality of the power claimed by the
king to suspend laws or the execution of laws; (3) The illegality of a standing army
without consent of Parliament.
Here, as in the case of Magna Charta or our
American revolutions, parchment liberties are not long respected unless backed up by an
adequate public opinion and physical force. So these restrictions like the others were
ignored when in the contest for power this seemed desirable. Let us not forget that it has
always been merely a contest for power rather than for principles, though the latter
sometimes furnished the pretext behind which the lust for power was bulwarked. Thus it
happened that often the precedents and principles of liberty were promoted even by tories.
In the English Bill of Rights dated Feb. 13,
1688, among the grievances charged and to be eliminated was the "keeping a standing
army within the kingdom in time of peace without consent of parliament," which
supposedly represents the people. Another complaint was that of "causing several good
subjects, being protestants, to be disarmed and employed contrary to law." If we are
to erect this complaint against disarming part of the people into a general principle, it
must be that in order to maintain freedom we must keep alive both the spirit and the means
of resistance to government whenever "government is in rebellion against the
people," that being a phrase of the time. This of course included the right to
advocate the timeliness and right of resistance.
The reformers of that period were more or less
consciously aiming toward the destruction of government from over the people in favor of
government from out of the people, or as Lincoln put it, "government of, for and by
the people." Those who saw this clearest were working towards the democratization of
the army by abolishing standing armies and replacing them by an armed populace defending
themselves, not being defended and repressed by those in whose name the defence is made.
Upon these precedents, others like them, and
upon general principles reformers like DeLolme and John Cartwright made it plain that the
right to resist government was one protected by the English Constitution.(744)
Thus, Schroeder explicated that the Second Amendment right
to arms and the First Amendment freedom of speech are firmly rooted in the history of
America and England. The governments which now rule in America and England were put in
place by people who advocated, and then carried out, the overthrow of a tyrannical
government. In order to provide long-term security against the recurrence of tyranny, the
British and American Bills of Rights both provide for the freedom of speech to call for
the removal of a tyranny, and the right to arms to carry out that removal.(745) Removing tyranny is not, observed Schroeder, any kind
of illegitimate rebellion. Rather, tyrannical "government is in rebellion against the
people."(746)
By the 1930s, when the majority of the Supreme Court was
ready to begin defending the First Amendment, Schroeder had retired from the fray, and the
Free Speech League had been eclipsed by the more cautious American Civil Liberties Union.(747) Would some of the Court's worst pro-repression
decisions perhaps have been decided differently, or on narrower grounds, if the Court had
considered the lessons that the Second Amendment teaches about the First Amendment? At the
least, some scholars and some portions of the general public might have better and more
quickly understood the broad protection that the First Amendment offers to subversive
speech--if free speech advocates had continued Theodore Schroeder's use of the Second
Amendment to teach about the First.
7. The illegality
of most federal gun laws
The Bill of Rights, including the Second Amendment, was
never intended by its Framers to be the primary safeguard of liberty. In the view of the
Framers, the main protection of liberty was the structure of the Constitution itself. The
separation of powers would prevent the rule by fiat which burdened most of Europe. And the
legislative branch was granted only the power to legislate 8n specific, enumerated
subjects (e.g., patents, bankruptcies, interstate commerce). Thus, Congress would have no
power to censor speech, to suppress assemblies, to outlaw guns, or otherwise infringe
rights.(749)
In the nineteenth century, St. George Tucker, William
Rawle, and Timothy Farrar made precisely this point: the Second Amendment (like the First
Amendment ) was in a sense superfluous, because Congress had no power to ban guns in the
first place.(749) But in the late twentieth century, the
structural safeguards of the body of the Constitution have been eliminated by judicial
acquiescence to legislative and executive abuse of power. The federal power to regulate
interstate commerce (buying and selling things across state lines) and the power to tax
have been twisted into a general police power to legislate on almost any
subject--including the power to ban the simple possession of firearms by various classes
of persons.(750)
Thus, the exercise of power which can be found nowhere in
the text of the Constitution has become commonplace: the President announces that gun
store owners must post or distribute antigun statements in their stores.(751)
Executive branch officials in the Bureau of Alcohol, Tobacco and Firearms (BATF) from time
to time announce that an additional type of weapon has been subjected to near-prohibitory
federal controls, thanks to BATF's reinterpretation of a statute or regulation.(752) The Federal Trade Commission, meanwhile, is seriously
contemplating a request that it issue an order prohibiting gun manufacturers from
mentioning self-defense in their advertising.(753)
All this is normal constitutional law in the late
twentieth century, but the nineteenth century commentators bring us back to first
principles and remind us that all this federal "law-making" about guns is not
really law-making at all. It may have the appearance of law (written down in statute books
or other official records), and there may be the force of compulsion behind the
"laws," but the Framers and the nineteenth century had a word for the exercise
of power which was never granted. That word was not "law." The word was
"usurpation."
Toward the end of the twentieth century, the Supreme Court
has begun to take some tentative steps towards restoring the structural safeguards of the
main body of the Constitution.(754) The steps are
hesitant, and there is great fear of upsetting precedent. But precedent which authorizes
the violation of the text of the Constitution deserves no respect. Beginning in the 1930s,
and with increasing confidence in subsequent decades, the Supreme Court began to abandon
precedent from the 1900s, 1910s, and 1920s which had constricted the First Amendment. The
Court moved forward by returning to the original First Amendment analysis, as articulated
by, among others, St. George Tucker. Perhaps in the twenty-first century, the Court will
continue to restore the structure of the Constitution, so that the invocation of the
First, Second, or other Amendments will become less necessary, as the federal sphere of
action shrinks to constitutional boundaries.
VIII. Conclusion
The historical record shows that, while the boundaries of
the Second Amendment were the subject of vigorous discussion during the nineteenth
century, the core meaning of the Amendment was well-settled: the Standard Model of the
late twentieth century scholars was the Standard Model of the nineteenth century. For all
practical purposes, it was the only model. Every known scholarly commentator who said
anything about the Second Amendment, all six Supreme Court cases, and every judge except
for one in Arkansas treated the Second Amendment as an individual right. These Standard
Model sources--like their twentieth century successors--disagreed about important features
of the Second Amendment, including its application to the states and the types of arms
whose possession is protected. Some analysts treated the Amendment in desultory fashion,
while others celebrated it. Some cases and commentators saw the right as intended solely
to allow resistance to oppressive government, while others saw the right as also
encompassing defense against individual criminals, and not just criminal governments. But
there is agreement on one fundamental: the Second Amendment recognizes a right of
individual Americans to own guns and edged weapons suitable for resisting tyranny, and
protects that right from infringement by the federal government. However confusing the
Second Amendment may have become to Americans in the twentieth century, the core of the
Amendment's meaning was readily apparent in the nineteenth century.
In the late twentieth century, scholars are perfectly free
to argue against the Standard Model of the Second Amendment on the basis of changed
circumstances. For example, Donald Beschle reasons that the Second Amendment should be
reconstrued into a right of personal security, and that right can be protected by banning
all guns.(755) Several schools of constitutional
interpretation suggest that the established interpretive history of constitutional
provisions may be ignored if the history impedes the achievement of desirable governmental
policies. Perhaps one could argue that the nineteenth century was the victim of a massive
fraud (apparently perpetrated by St. George Tucker and William Rawle) which fooled
everyone from Justice Story onward about the meaning of the Second Amendment.(756) Even within the limits of a nineteenth century
interpretive paradigm, there is much useful precedent for advocates of restrictions on
various types of concealable weapons, and for prohibitions on the carrying of concealed
weapons.
But it can no longer be argued--at least not by anyone
constrained by respect for the truth--that the Second Amendment has never been considered
an individual right. The anti-individual view of the Second Amendment was, at most, a very
lonely voice against an overwhelming nineteenth century individual rights consensus. In
light of the nineteenth century record, no twentieth or twenty-first century scholars
should claim that the Standard Model individual rights view is a fraud or a myth.
*. Adjunct Professor of Law,
New York University Law School, 1998; Research Director, Independence Institute, Golden,
Colorado. J.D., 1985, University of Michigan; B.A. in History 1982, Brown University. I
would like to thank Jim Winchester, J.D., for outstanding research assistance. Valuable
aid was also provided by Paul Blackman, David Caplan, Clayton Cramer, Brannon Denning,
Robert Dowlut, Mark Fuller, Richard Griffiths, Stephen Halbrook, Scott Hattrup, Charles B.
Kates, Don Kates, Jerry & Dolores Kopel, Nelson Lund, Joseph Olson, Daniel Polsby,
Glenn Harlan Reynolds, Doug Spittler, William Van Alstyne, Eugene Volokh, and the
Cincinnati Law Library Association.
1.
See Senate
Subcommittee on the Constitution of the Committee on the Judiciary, 97th Cong., 2d Sess.,
The Right To Keep and Bear Arms (Comm. Print 1982) [hereinafter Senate Subcomm. on the
Const.]; Robert J. Cottrol, Introduction to 1 Gun Control and the Constitution:
Sources and Explorations on the Second Amendment at ix (Robert J. Cottrol ed., 1993);
Robert J. Cottrol & Raymond T. Diamond, Public Safety and the Right to Bear Arms,
in The Bill of Rights in Modern America: After 200 Years 72 (David J. Bodenhamer
& James W. Ely, Jr., eds., 1993); Robert J. Cottrol, Second Amendment, in
The Oxford Companion to the Supreme Court of the United States 763 (Kermit L. Hall et
al. eds., 1992); Clayton Cramer, For the Defense of Themselves and the State at xv (1994);
4 Encyclopedia of the American Constitution 1639-40 (Leonard W. Levy et al. eds., 1986);
Stephen Halbrook, A Right To Bear Arms: State And Federal Bills Of Rights And
Constitutional Guarantees (1989) [hereinafter Halbrook, Right to Bear Arms]; Stephen P.
Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984)
[hereinafter Halbrook, That Every Man Be Armed]; Edward F. Leddy, Guns and Gun Conrtol,
in Reader's Companion to American History 477-78 (Eric Foner & John A.
Garraty eds., 1991); Leonard W. Levy, Original Intent and the Framers' Constitution 341
(1988); Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right
(1994); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101
Yale L.J. 1193 (1992) [hereinafter Amar, Fourteenth Amendment]; Akhil Reed Amar, The
Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1164 (1991); Randy E. Barnett
& Don B. Kates, Under Fire: The New Consensus on the Second Amendment, 45
Emory L.J. 1139, 1141 (1996); Bernard J. Bordenet, The Right to Possess Arms: The
Intent of the Framers of the Second Amendment, 21 U. West L.A. L. Rev. 1, 28 (1990);
David I. Caplan, The Right of the Individual to Bear Arms: A Recent Judicial Trend,
1982 Det. C.L. Rev. 789, 790; David I. Caplan, The Right to Have Arms and Use Deadly
Force Under the Second and Third Amendments, 2.1 J. on Firearms & Pub. Pol'y 165
(1990); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Brannon P. Denning, Can
the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller
and the Second Amendment, 26 Cumb. L. Rev. 961 (1995-96) [hereinafter Denning, Simple
Cite]; Brannon P. Denning, Gun Shy: The Second Amendment as an
"Underenforced Constitutional Norm", 21 Harv. J.L. &
Pub. Pol'y 719 (1998) [hereinafter Denning, Gun Shy]; Anthony J. Dennis, Clearing
the Smoke From the Right to Bear Arms and the Second Amendment, 29 Akron L. Rev. 57
(1995); Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U.
Dayton L. Rev. 59 (1989) [hereinafter Dowlut, Guarantees to Arms]; Robert Dowlut,
The Current Relevancy of Keeping and Bearing Arms, 15 U. Balt. L.F. 32 (1984);
Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges
Reign?, 36 Okla. L. Rev. 65 (1983) [hereinafter Dowlut, The Right to Arms];
Robert Dowlut, The Right to Keep and Bear Arms: A Right to Self-Defense Against
Criminals and Despots, 8 Stan. L. & Pol'y Rev. 25 (1997); Richard E. Gardiner, To
Preserve Liberty--A Look at the Right to Keep and Bear Arms, 10 N. Ky. L. Rev. 63
(1982); Alan M. Gottlieb, Gun Ownership: A Constitutional Right, 10 N. Ky. L.
Rev. 113 (1982); Stephen P. Halbrook, Congress Interprets the Second Amendment:
Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms, 62
Tenn. L. Rev. 597 (1995); Stephen P. Halbrook, Encroachments of the Crown on the
Liberty of the Subject: Pre-Revolutionary Origins of the Second Amendment, 15 U.
Dayton L. Rev. 91 (1989); Stephen P. Halbrook, Personal Security, Personal Liberty,
and "The Constitutional Right to Bear Arms": Visions of the Framers of the
Fourteenth Amendment, 5 Seton Hall Const. L.J. 341 (1995) [hereinafter Halbrook, Personal
Security]; Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment
in the District of Columbia, 5 Geo. Mason U. Civ. Rts. L.J. 105 (1995); Stephen P.
Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason
L. Rev. 1 (1981); Stephen P. Halbrook, The Right of the People or the Power of the
State: Bearing Arms, Arming Militias, and the Second Amendment, 26 Val. U. L. Rev.
131 (1991); Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of
the Right to "Bear Arms", 49 Law & Contemp. Probs. 151 (1986)
[hereinafter Halbrook, What the Framers Intended]; David G. Hardy, Armed
Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv.
J.L. & Pub. Pol'y 559 (1986); David G. Hardy, The Second Amendment and the
Historiography of the Bill of Rights, 4 J.L. & Pol. 1 (1987) [hereinafter Hardy, Second
Amendment]; Nicholas J. Johnson, Principles and Passions: The Intersection of
Abortion and Gun Rights, 50 Rutgers L. Rev. 97 (1997); Don B. Kates, Jr., Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204
(1983) [hereinafter Kates, Handgun Prohibition]; Don B. Kates, Jr., The
Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143 (1986); Don Kates, The
Second Amendment and the Ideology of Self-Protection, 9 Const. Commentary 87 (1992)
[hereinafter Kates, Self-Protection]; David B. Kopel & Christopher C. Little,
Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibition,
56 Md. L. Rev. 438 (1997); Stephanie A. Levin, Grassroots Voices: Local Action and
National Military Policy, 40 Buff. L. Rev. 321, 346-47 (1992); Sanford Levinson, The
Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund, The Past and
Future of the Individual's Right to Arms, 31 Ga. L. Rev. 1 (1996) [hereinafter Lund, Past
and Future]; Nelson Lund, The Second Amendment, Political Liberty, and the Right
to Self-Preservation, 39 Ala. L. Rev. 103 (1987); Joyce Lee Malcolm, The Right of
the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q.
285 (1983); Thomas B. McAffee & Michael J. Quinlan, Bringing Forward the Right to
Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?, 75 N.C. L. Rev.
781 (1997); Thomas M. Moncure, Jr., The Second Amendment Ain't About Hunting, 34
How. L.J. 589 (1991); Thomas M. Moncure, Jr., Who is the Militia--The Virginia
Ratification Convention and the Right to Bear Arms, 19 Lincoln L. Rev. 1 (1990);
James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American
Constitutional Order, 139 U. Pa. L. Rev. 287 (1990); L.A. Powe, Jr., Guns, Words,
and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311 (1997); Michael J.
Quinlan, Is There a Neutral Justification for Refusing to Implement the Second
Amendment or is the Supreme Court Just "Gun Shy"?, 22 Cap. U. L. Rev. 641
(1993); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn.
L. Rev. 461 (1995); Glenn Harlan Reynolds, The Right to Keep and Bear Arms Under the
Tennessee Constitution: A Case Study in Civic Republican Thought, 61 Tenn. L. Rev.
647 (1994) (discussing the Second Amendment as related to the Tennessee Constitution)
[hereinafter Reynolds, Tennessee Constitution]; Elaine Scarry, War and the
Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms, 139 U. Pa.
L. Rev. 1257 (1991); J. Neil Schulman, The Text of the Second Amendment, 4 J. on
Firearms & Pub. Pol'y 159 (1992); Robert E. Shalhope, The Armed Citizen in the
Early Republic, 49 Law & Contemp. Probs. 125 (1986); Robert E. Shalhope, The
Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599 (1982); William Van
Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236
(1994); David E. Vandercoy, The History of the Second Amendment, 28 Val.
U. L. Rev. 1007 (1994); Eugene Volokh, The Amazing Vanishing Second Amendment,
73 N.Y.U. L. Rev. 831 (1998); Eugene Volokh, The Commonplace Second Amendment, 73
N.Y.U. L. Rev. 793 (1998); Scott Bursor, Note, Toward a Functional Framework for
Interpreting the Second Amendment, 74 Tex. L. Rev. 1125 (1996); Robert J. Cottrol
& Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995 (1995)
(reviewing Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American
Right (1994)); Brannon P. Denning, Professional Discourse, The Second Amendment, and
the "Talking Head Constitutionalism" Counterrevolution: A Review Essay, 21
S. Ill. U. L.J. 227 (1997) (reviewing Dennis A. Henigan et al., Guns and the Constitution:
The Myth of Second Amendment Protection for Firearms in America (1996)); T. Markus Funk, Is
the True Meaning of the Second Amendment Really Such a Riddle? Tracing the Historical
"Origins of an Anglo-American Right", 39 How. L.J. 411 (1995) (reviewing
Joyce Lee Malcom, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994));
David B. Kopel, It Isn't About Duck Hunting: The British Origins of the Right to Arms,
93 Mich. L. Rev. 1333 (1995) (reviewing Joyce Lee Malcolm, To Keep and Bear Arms: The
Origins of an Anglo-American Right (1994)); F. Smith Fussner, Book Review, 3 Const.
Commentary 582 (1986) (reviewing Stephen P. Halbrook, That Every Man Be Armed: The
Evolution of a Constitutional Right (1984)); Joyce Lee Malcolm, Book Review, 54 Geo. Wash.
L. Rev. 452 (1986) (reviewing Stephen P. Halbrook, That Every Man Be Armed: The Evolution
of a Constitutional Right (1984)); cf. Nicholas J. Johnson, Beyond the Second
Amendment: An Individual Right to Arms Viewed through the Ninth Amendment, 24 Rutgers
L.J. 1 (1992) (arguing that the Ninth Amendment supports an individual right to arms).
2.
See Dennis A.
Henigan et al., Guns and the Constitution: The Myth of Second Amendment Protection for
Firearms in America (1995); Keith A. Ehrman & Dennis A. Henigan, The Second
Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton
L. Rev. 5, 30 (1989) ("The 'right to bear arms' concerned the ability of the states
to maintain an effective militia, not an individual right to keep weapons for any purpose
whatsoever."); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26
Val. U. L. Rev. 107 (1991) [hereinafter Henigan, Arms, Anarchy]. Henigan's status
as premier writer of the anti-individual school is based on the fact that he has authored
two full length anti-individualist law review articles in the last decade, and he is by
far the most active spokesman for the view that the individual right to keep and bear arms
is a fraud. See sources cited infra note 12; see also Robert J.
Spitzer, The Politics of Gun Control 42-43 (1995); George Anastaplo, Amendments to the
Constitution of the United States: A Commentary, 23 Loy. U. Chi. L.J. 631, 687-93
(1992); Michael A. Bellesiles, The Origins of Gun Culture in the United States,
1760-1865, 83 J. Am. Hist. 425 (1996); Carl T. Bogus, Race, Riots, and Guns,
66 S. Cal. L. Rev. 1365 (1993); Carl T. Bogus, The Hidden History of the Second
Amendment, 31 U.C. Davis L. Rev. 309 (1998) [hereinafter Bogus, Hidden History];
Lawrence Delbert Cress, An Armed Community: The Origins and Meaning of the Right to
Bear Arms, 71 J. Am. Hist. 22 (1984); Samuel Fields, Guns, Crime and the
Negligent Gun Owner, 10 N. Ky. L. Rev. 141 (1982); Andrew D. Herz, Gun Crazy:
Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75
B.U. L. Rev. 57 (1995); Michael J. Palmiotto, The Misconception of the American
Citizen's Right to Keep and Bear Arms, 4 J. on Firearms & Pub. Pol'y 85 (1992);
Warren Spannaus, State Firearms Regulation and the Second Amendment, 6 Hamline L.
Rev. 383 (1983).
3. For an analysis of the
logical implications of a states' rights Second Amendment theory as propounded by Henigan,
see Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States' Rights:
A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995). If the Second Amendment
did guarantee state control over the National Guard, then it would be hard to deny the
unconstitutionality of President Eisenhower's federalization of the Arkansas National
Guard--over the vehement protest of the Governor--during the Little Rock school
integration crisis in 1957. See Powe, supra note 1, at 1385-86.
4. Dennis Henigan, The
Right to Be Armed: A Constitutional Illusion, S.F. Barrister, Dec. 1989, available
online at ¶ 19 (visited Nov. 30, 1998)
< http://www.handguncontrol.org/legalaction/C2/c2rtarms.htm >.
5. Garry Wills, Why We
Have No Right to Bear Arms, N.Y. Rev. Books, Sept. 21, 1995, at 62, 72.
6.. Id. at 69.
7. See id. at 72.
8. See David C.
Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,
101 Yale L.J. 551 (1991) [hereinafter Williams, Civic Republicanism]; David C.
Williams, The Militia Movement and Second Amendment Revolution: Conjuring with the
People, 81 Cornell L. Rev. 879 (1996) [hereinafter Williams, Militia Movement];
David C. Williams, The Unitary Second Amendment, 73 N.Y.U. L. Rev. 822 (1998).
9.
[O]ne of the frauds--and I use that terms [sic]
advisedly--on the American people, has been the campaign to mislead the public about the
Second Amendment. The Second Amendment doesn't guarantee the right to have firearms at
all. . . . [The People of this country] wanted the Bill of Rights to make
sure that there was no standing army in this country, but that there would be state
armies. Every state during the revolution had its own army. There was no national army.
Warren Burger, Press Conference Concerning
Introduction of the Public Health and Safety Act of 1992, Fed. News Service, June 26,
1992, available in LEXIS, Nexis Library, ARCNWS File (supporting proposal to
confiscate handguns).
The United States, under the Constitution,
has always had a standing army. If the Second Amendment were meant to prohibit standing
armies, it is impossible to explain why the very same Congress that approved the Second
Amendment also voted to create a standing army. Compare Military Establishment
Act, H.R. 50a, with Military Establishment Act, H.R. 126a, both in 5
Documentary History of the First Federal Congress 1789-1791, at 1272-1432 (Linda Grant De
Pauw et al. eds., 1972).
10. Erwin N. Griswold, Phantom
Second Amendment 'Rights', Wash. Post, Nov. 4, 1990, at C7; see also Henigan,
supra note 4 ("That the 2nd Amendment poses no threat to laws affecting the
private possession of firearms may well be the most well-settled proposition in
constitutional law."). Considering how well-established certain other principles of
American law are (such as judicial review, or the prohibition on prior restraints),
Griswold and Henigan make a very strong claim.
11. Michael K. Beard &
Kristin M. Rand, The Handgun Battle, Bill of Rts. J., Dec. 1987, at 13, 13.
12. 9 Firearms Litig. Rep.
(Firearms Litig. Clearinghouse), Summer 1995, at 4 (recommending Andrew D. Herz, Gun
Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility,
75 B.U. L. Rev. 57 (1995)); see also Center to Prevent Handgun Violence, The
Second Amendment: Fraud and Fact (undated pamphlet) (on file with author)
("Fraud[:] . . . each citizen of a state retains a fundamental 'right
to keep and bear arms.' Fact[:] . . . the Second Amendment does not
guarantee the right of individuals to own and to carry arms."); Dennis Henigan, Exploding
the NRA's Constitutional Myth, Legal Times, Apr. 22, 1991, at 22, 22 (arguing that an
individual right to arms is a "constitutional myth, an illusion created by mass
advertising to advance a political objective," that the NRA should "no longer
pretend that there is some fundamental constitutional liberty at stake," and that
"[i]t's time to stop the Second Amendment nonsense") [hereinafter Henigan, Constitutional
Myth]; Dennis Henigan, Faulty Interpretation, Wash. Times, Jan. 11, 1998, at
B4 ("The constitutional debate is phony.").
13. See generally Duncan
Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System
(1983).
14. William Blackstone,
Commentaries (St. George Tucker ed., Lawbook Exchange, Ltd. 1996) (1803).
15. See Hon. Armistead
M. Dobie, Federal District Judges in Virginia Before the Civil War, 12 F.R.D.
451, 459 (1952); William S. Prince, The Poems of Henry St. George Tucker of Williamsburg,
Virginia 1752-1827, at 1 (1977). Like many educated men of his day, Tucker frequently
wrote poetry. Although his poems are not particularly memorable, neither is most American
poetry from the Early Republic. See id. at x.
16. Don Riddick, The Second
Most Powerful Pen in Early Virginia: St. George Tucker, 4 J. S. Leg. Hist. 71, 71
(1997).
17. See James Madison,
Journal of the Federal Convention 35-36 (E.H. Scott ed., Albert, Scott & Co. 1893)
(1840).
18. Lawrence M. Friedman, A
History of American Law 193 (1973). Tucker was also known to be "as kindhearted a man
as ever lived." Henry Adams, John Randolph 166 (M.E. Sharpe 1996) (1882).
19. See Prince, supra
note 15, at 5; Paul D. Carrington, The Twenty-First Wisdom, 52 Wash. & Lee L.
Rev. 333, 333 n.1 (1995); Dowlut, The Right to Arms, supra note 1, at
83-84; Stephen P. Halbrook, Rationing Firearms Purchases and the Right to Keep Arms:
Reflections on the Bills of Rights of Virginia, West Virginia, and the United States,
96 W. Va. L. Rev. 1, 20 (1993).
20. Carrington, supra
note 19, at 336.
21. Richard B. Davis,
Intellectual Life in Jefferson's Virginia 1790-1843, at 413 (1964), cited in
Carrington, supra note 19, at 336 n.18. His abolition proposal was detailed in
St. George Tucker, A Dissertation on Slavery: With A Proposal for the Gradual Abolition of
It in the State of Virginia (1796). Tucker ensured the wide circulation of his
proposal by making it an appendix to his 1803 treatise. See 2 Blackstone, supra
note 14, app. at 31. Tucker described the disarmed status of free Negroes in Virginia as
amounting to civil slavery. But he urged that the law against ownership of arms by
freedmen be left in place upon the abolition of slavery, so as to encourage the ex-slaves
to settle outside Virginia. See id. app. at 57, 68, 78-79.
22. See Prince, supra
note 15, at 5.
23. See Paul Finkelman
& David Cobin, Introduction to 1 Blackstone, supra note 14 at i.
24. Carrington, supra
note 19, at 334.
25. See Paul D.
Carrington, Law as "The Common Thoughts of Men": The Law-Teaching and
Judging of Thomas McIntyre Cooley, 49 Stan. L. Rev. 495, 516 (1997).
26. See Elizabeth Gaspar
Brown, A Jeffersonian's Recommendations for a Lawyer's Education: 1802, 13 Am. J.
Legal Hist. 139, 141 (1969). Two decades later, Tucker's Blackstone was still
"necessary to every student and practitioner of law in Virginia." Daniel Call,
Biographical Sketch of the Judges of the Court of Appeals, 8 Va. (4 Call) xxvi,
xxviii (1827), reprinted in Jefferson, Virginia Reports, 1730-1880, at 627
(Thomas Johnson Michie ed., The Michie Co. 1902).
27. Finkelman & Cobin, supra
note 23, at xiii.
28. Riddick, supra note
16, at 73; see also Hon. Armistead M. Dobie, Federal District Judges in
Virginia Before the Civil War, 12 F.R.D. 451, 460 (1952) ("[T]he American
Blackstone was unquestionably one of the most important law-books of its day.").
29. Alfred L. Brophy, "Ingenium
Est Fateri Per Quos Profeceris:" Francis Daniel Pastorius' Young Country Clerk's
Collection and Anglo-American Legal Literature, 1682-1716, U. Chi. Sch. Roundtable
637, 671 n.121 (1996) (citing Robert M. Cover, Tucker's Blackstone, 70 Colum. L.
Rev. 1475, 1475 (1970); John H. Langbein, Chancellor Kent and the History of Legal
Literature, 93 Colum. L. Rev. 547 (1993)).
30. See Finkelman &
Cobin, supra note 23, at ii.
31. 2 Blackstone, supra
note 14, at 140-42.
32. See id. The primary
rights were personal security, personal liberty, and property. See id. at 121-38.
33. Id. at 143
(footnotes added by Tucker).
34. 1 W. & M., Sess. 2, ch. 2
(1688). The Parliament enacting the Bill of Rights had rejected an arms guarantee limiting
the right only to arms kept "for their common defence." Malcolm, supra
note 1, at 117. Although Catholics were excluded, they were allowed by statute to keep
guns on their own property for personal defense. See 1 W. & M. Sess. 2, ch.
15 (1688); Malcolm, supra note 1, at 122-23.
35. 2 Blackstone, supra note
14, at 143 n.40. The citation to "Art. 4" reflects the fact that the Second
Amendment was originally the Fourth Amendment and gained its current numbering only when
the original first two amendments (controlling House of Representatives apportionment and
Congressional pay raises) failed to win speedy ratification by the states. Tucker's
numbering system followed the numbering of the amendments as proposed to the States by
Congress. See 1 id. app. at 300.
36. 2 id. at 143 n.41
(quotation marks modified to reflect modern usage).
37. "They [the proposed Bill
of Rights] relate 1st. to private rights-- . . . fallacy on both
sides--espec[iall]y as to English Decln. of Rts--1. mere act of parl[iamen]t. 2. no
freedom of press--Conscience . . . attainders--arms to Protest[an]ts."
James Madison, Notes for Speech in Congress Supporting Amendments (June 8, 1789),
in 12 The Papers of James Madison 193-94 (Charles F. Hobson et. al. eds., 1979); see
also The Origin of the Second Amendment 645 (David E. Young ed., 1991) [hereinafter
Origin].
38. 3 Blackstone, supra note
14, at 414 n.3.
39. See Malcolm, supra
note 1, at 126-30.
40. 3 Blackstone, supra
note 14, at 414 n.3.
41. St. George Tucker, The
Judges Tucker of the Court of Appeals of Virginia, 1 Va. L. Reg. 789, 794 (1896); see
also Finkelman & Cobin, supra note 23, at i.
42. See Tucker, supra
note 41, at 793.
43. See Finkelman &
Cobin, supra note 23, at ii.
44. New York Times Co. v.
Sullivan, 376 U.S. 254, 286, 296 (1964) (Black, J., concurring) (Justice Douglas joined
this concurrence).
45. Finkelman & Cobin, supra
note 23, at v.
46. Cohens v. Virginia, 19 U.S.
(6 Wheat.) 264, 418 (1821).
47. 10 U.S. (4 Cranch) 87, 121
(1810).
48. Dartmouth College v.
Woodward, 17 U.S. (4 Wheat.) 518, 607 (1819).
49. 22 U.S. (9 Wheat.) 1, 86,
113, 179 (1824).
50. Charles River Bridge v.
Warren Bridge, 36 U.S. (11 Pet.) 420, 472 (1837).
51. Scott v. Sandford, 60 U.S.
(19 How.) 393, 578 (1856).
52. 83 U.S. (16 Wall.) 36, 127-28
(1872).
53. 123 U.S. 131, 152 (1887).
55. 54. 157 U.S. 429, 629 (1895)
(White, J., dissenting).
55. 341 U.S. 494, 522-23 n.4
(1951) (Frankfurter, J., concurring).
56. 376 U.S. 254, 286, 296-97
(1964) (Black, J., concurring).
57. 501 U.S. 957, 977 (1991).
58. U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779 (1995). The Court used Judge Tucker's "two primary
arguments" in its holding against the power to add term limits qualifications: First, that in a representative government, the people have an undoubted right
to judge for themselves of the qualification of their delegate, and if their opinion of
the integrity of their representative will supply the want of estate, there can be no
reason for the government to interfere, by saying, that the latter must and shall
overbalance the former
Secondly; by requiring a qualification in estate it may
often happen, that men the best qualified in other respects might be incapacitated from
serving their country.
Id. at 824 n.34.
59. Some other cites: Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring in judgment)
("It was thus as a supposed affirmation of Magna Charta according to Coke that the
First Congress . . . included in the proposed Fifth Amendment to the
Federal Constitution the provision that '[n]o person shall be . . .
deprived of life, liberty, or property, without due process of law.' Early commentaries
confirm this. See, e.g., 2 W. Blackstone, Commentaries 133 nn.11, 12 (S. Tucker
ed., 1803)."); U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 463 n.13
(1978) ("St. George Tucker, who along with Madison and Edmund Randolph was a Virginia
commissioner to the Annapolis Convention of 1786, drew a distinction between 'treaties,
alliances, and confederations' on the one hand, and 'agreements or compacts' on the
other: . . . 1 W. Blackstone, Commentaries, Appendix 310 (S. Tucker ed.
1803)."); Apodaca v. Oregon, 406 U.S. 404, 408 n.3 (1972) ("[T]he unquestioning
acceptance of the unanimity rule by text writers such as St. George Tucker indicate that
[jury] unanimity became the accepted rule during the 18th century."); Smith v.
California, 361 U.S. 147, 157 n.2 (1959) (Black, J., concurring) ("For another early
discussion of the scope of the First Amendment as a complete bar to all federal abridgment
of speech and press see St. George Tucker's comments on the adequacy of state forums and
state laws to grant all the protection needed against defamation and libel.");
Barenblatt v. United States, 360 U.S. 109, 151 n.23 (1959) (Black, J., dissenting)
("Cf. St. George Tucker, Appendix, 1 Blackstone Commentaries (Tucker ed. 1803) 299.
'[T]he judicial courts of the respective states are open to all persons alike, for the
redress of injuries of this nature [libel] . . . . But the genius of
our government will not permit the federal legislature to interfere with the subject; and
the federal courts are, I presume, equally restrained by the principles of the
constitution, and the amendments which have since been adopted.'" (omission and
alterations in original)); id at 150 n.20 ("Cf. St. George Tucker, Appendix,
1 Blackstone [Tucker ed. 1803] 315, discussing English laws 'for suppressing assemblies of
free-masons' and pointing out that similar laws cannot be enacted under our
Constitution.").
60. William Rawle's and Justice
Story's treatises closely followed this language. See infra text accompanying
notes 96, 112.
61. 1 Blackstone, supra note
14, app. at 300.
62. U.S. Const. art. I,
§ 8, cl. 18.
63. 1 Blackstone, supra
note 14, app. at 289. For further analysis of this passage, see Gary Lawson & Patricia
B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional
Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 302-03 (1993) (arguing that
prior to adoption of Bill of Rights, all natural rights--including the right to arms--were
protected by the Necessary and Proper clause).
64. See 1 Blackstone, supra
note 14, app. at 289.
But if congress may use any means, which they choose to
adopt, the provision in the constitution which secures to the people the right of bearing
arms, is a mere nullity; and any man imprisoned for bearing arms under such an act, might
be without relief; because in that case, no court could have any power to pronounce on the
necessity or propriety of the means adopted by congress to carry any specified power into
complete effect.
Id.
65. See, e.g., Cramer, supra
note 1, at 69; Halbrook, That Every Man Be Armed, supra note 1, at 53, 90, 99;
Dowlut, The Right to Arms, supra note 1, at 83-84; Gottlieb, supra
note 1, at 130-31; Halbrook, supra note 19, at 20-26; Kates, Handgun
Prohibition, supra note 1, at 241-43; McAffee & Quinlan, supra
note 1, at 867-68; Powe, supra note 1, at 1369-70.
66. Tucker's Blackstone
was a five-volume treatise, in parallel with the original Blackstone. Only
Tucker's additions, not the original Blackstone, were new, and therefore
potentially controversial. Tucker's writings on constitutional subjects would have been
especially likely to draw the attention of the lawyers, including Madison, who had written
the Constitution.
67. See Houston v.
Moore, 18 U.S. (5 Wheat.) 1 (1820).
68. Id. at 2-3.
69. U.S. Const. art. I,
§ 8, cl. 15.
70. Id. at cl. 16.
71. See U.S. Const.
amend. X.
72. See Houston, 18 U.S.
at 7-12.
73. See id. at 21-24.
74. See id. at 24-31.
75. See id. at 32.
76. "It is not very
easy," Justice Johnson began, "to form a distinct idea of what the question in
this case really is." Id. at 32. Indeed, Houston v. Moore could
supplant Pennoyer v. Neff, 95 U.S. 714 (1877), as the ideal case law professors
could use to baffle first-day law students--if law professors considered the militia as
interesting as in rem jurisdiction.
77. See Houston, 18 U.S.
at 42-45 (Johnson, J., concurring).
78. 32 U.S. (7 Pet.) 243 (1833).
79. This was the only time that
Justice Story dissented from a constitutional decision in which Chief Justice Marshall was
in the majority. See James McClellan, Joseph Story and the American Constitution
311 n.161 (1971).
80. See Houston, 18
U.S. at 53-54.
81. See id. at 60-65.
82. Id. at 52-53.
83. In regard to interstate
commerce, Justice Story took a different position: the mere existence of a federal power
over interstate commerce preempted any state regulation of interstate commerce. See New
York v. Miln, 36 U.S. (11 Pet.) 102, 157-61 (1837). The Miln opinion was quoted,
for a different point, in another Supreme Court gun case, United States v. Cruikshank,
92 U.S. 542, 553 (1876). See infra text accompanying note 365.
84. See Houston, 18
U.S. at 7-12. Others were concerned that the federal power to arm and discipline the
militia would entirely displace the state power to do so. See Patrick Henry,
Virginia Convention Debate of June 5, 1788, reprinted in Origin, supra note
37, at 373-74; Patrick Henry, Virginia Convention Debate of June 9, 1788, reprinted in
Origin, supra note 37, at 380-81; George Mason, Virginia Convention Debate of
June 14, 1788, reprinted in Origin, supra note 37, at 401-02; Patrick
Henry, Virginia Convention Debate of June 14, 1788, reprinted in Origin, supra
note 37, at 406, 410.
For federalist reassurances that the states retained
concurrent power to arm and discipline the militia, which could be used in case of federal
neglect, see An Impartial Citizen, Va. Gaz., Mar. 13, 1788, reprinted in
Origin, supra note 37, at 299; Richard Henry Lee, Virginia Convention Debate of
June 9, 1788, reprinted in Origin, supra note 37, at 382-83; John
Marshall, Virginia Convention Debate of June 16, 1788, reprinted in Origin, supra
note 37, at 426.
85. See Henigan, supra
note 12, at 22 ("[American colonists] sought in the Bill of Rights a
reaffirmation of the right of the states to have their own armed militia, composed of
ordinary citizens, as a check on the power of the standing army."); Henigan, Arms,
Anarchy, supra note 2, at 116 ("[T]he Second Amendment did affect some
change in the Constitutional scheme; presumably the Framers did not adopt the Bill of
Rights in 1791 with the intent to leave things as they were in 1787.").
86. The reporter's text
summarizes the arguments presented by each side. See id. at 4-12.
87. Houston, 18 U.S. at
53. The Supreme Court decided one other militia case during this period. Writing for a
unanimous Court, Justice Story held that the President's determination of the need for a
militia call-out was not subject to judicial review. See Martin v. Mott, 25 U.S.
(12 Wheat.) 19, 28-39 (1827).
88. William Rawle, A View of the
Constitution of the United States of America (1825).
89. See The Rawle Reading
Room at Temple University Law Library (visited Nov. 8, 1998)
< http://www.temple.edu/departments/lawschool/II-rawlecollection.htm > [herein-after Rawle
Reading Room]. Rawle also served as a trustee of the University of Pennsylvania. See
Trustees of the University of Pennsylvania (visited Nov. 23, 1998)
< http://www.upenn.edu/AR/1830/trustees.html > .
90. See Charles Sumner
Lobinger, William Rawle, in The Dictionary of American Biography (CD-ROM
ed. 1997) [hereinafter Dict. Am. Bio.].
91. Michael G. Collins, Article
III Cases, State Court Duties, and the Madisonian Compromise, 1995 Wis. L. Rev. 39,
75. Like Tucker, Rawle was also a friend and correspondent of Thomas Jefferson. See Kates,
Handgun Prohibition, supra note 1, at 241 n.159.
92. See D. Brown,
Eulogium Upon William Rawle 15 (1837), cited in Kates, Handgun Prohibition,
supra note 1, at 242 n.161.
93. In that capacity, he
prosecuted the leaders of the Whiskey Insurrections. See Lobinger, supra
note 90.
94. Joel Fishman, The Reports
of the Supreme Court of Pennsylvania, 87 L. Libr. J. 643, 653 (1995).
95. See The Rawle Reading
Room, supra note 89.
96. William Rawle, A View of the
Constitution of the United States of America (Leonard W. Levy ed., Da Capo Press 1970) (2d
ed. 1829) (citations and footnotes omitted). Not all of Rawle's constitutional analysis
was vindicated by history. His final chapter maintained that states have a right to secede
from the Union--a reasonable position in 1825, but one which was dealt a serious blow by
Joseph Story in the next decade and which, whether rightly or wrongly, was decisively
settled by the Union victory in the Civil War. Even when not vindicated by subsequent
decades, however, Rawle is still useful for understanding the state of American legal
thinking in the 1820s.
The last sentence in the quote cited to 3 Edward Coke, The
First Part of the Institutes of the Laws of England 160 (Garland Publ. 1979) (1628); 1
William Hawkins, A Treatise of the Pleas of the Crown 126 (Garland Publ. 1978) (1716)
(explaining that the Justice of the Peace may require surety from persons who "go
about with unusual Weapons or Attendants, to the Terror of the People"). See
Rawle, supra note 96, at 126 n.‡. Hawkins elsewhere explained that the 1328
Statute of Northampton (against wearing arms in public) was limited in its construction,
so
[t]hat no wearing of Arms is within the meaning of this
Statute, unless it be accompanied with such Circumstances as are apt to terrify the
People; from whence it seems clearly to follow, That Persons of Quality are in no Danger
of Offending against this Statute by wearing common Weapons, or having their usual Number
of Attendants with them, for their Ornament or Defence, in such Places, and upon such
Occasions, in which it is the common Fashion to make use of them, without causing the
least Suspicion of an Intention to commit any Act of Violence or Disturbance of the Peace.
And from the same Ground it also follows, That Persons armed with privy Coats of Mail to
the Intent to defend themselves against their Adversaries, are not within the Meaning of
the Statute, because they do nothing in terrorem populi.
Sect. 10. VI. That no Person is within the
Intention of said Statute, who arms himself to suppress Rioters, Rebels, or Enemies, and
endeavours to suppress or resist such Disturbers of the Peace or Quiet of the Realm; for
Persons who so arm themselves, seem to be exempted out of the general Words of the said
Statute, by that Part of the Exception in the beginning thereof, which seems to allow all
Persons to arm themselves upon a Cry made for Arms to keep the Peace, in such Places where
such Acts happen.
1 Hawkins, supra, at 136. It was not surprising
that Rawle used Hawkins as an authority. The Hawkins treatise went through seven editions
in the eighteenth century, and one more in the nineteenth. See A.W.B. Simpson, The
Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature,
48 U. Chi. L. Rev. 632, 653 (1981) (noting that Hawkins sought to interpret the criminal
laws based on principles of justice and reasonableness).
Coke's treatise was written to defend civil liberties and
the common law against monarchial absolutism. Paraphrasing Ovid, Coke noted that "the
laws permit the taking up of arms against armed persons." 3 Coke, supra, at
162; see also Halbrook, That Every Man Be Armed, supra note 1, at 19
(citing Ovid, Artis Amatoriae III (line 492), in 2 Ovid 118, 152-53 (J.
Mozley transl., 1969) ("The laws allow arms to be taken against an armed
foe.")).
97. Rawle, supra note
96, at 153-54.
9. See id. at 155-61.
99. Id. at 125.
100. Thomas M. Cooley, General
Principles of Constitutional Law in the United States of America 298 (Andrew C. McLaughlin
ed., Little, Brown, & Co. 1898) (1880); see also infra note 403 and
accompanying text.
101. See Barron v.
Baltimore, 32 U.S. (7 Pet.) 243, 248-49 (1833).
102. See generally
David B. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and
the Partial-Birth Abortion Ban Act, 30 Conn. L. Rev. 59 (1997).
103. See Rawle, supra
note 96, at 125.
104. See Cramer, supra
note 1, at 69-70; Amar, Fourteenth Amendment, supra note 1, at 1203-04;
Dowlut, The Right to Arms, supra note 1, at 84-85; Gottlieb, supra
note 1, at 131; Kates, Handgun Prohibition, supra note 1, at 242-43;
McAffee & Quinlan, supra note 1, at 869-70.
105. The sole anti-individual
author to address Rawle is George Anastaplo. See George Anastaplo, Amendments
to the Constitution of the United States: A Commentary, 23 Loy. U. Chi. L.J. 631
(1992). Anastaplo characterizes Rawle as pro-regulation, based on Rawle's statement:
"This right ought not, however, in any government, to be abused in the disturbance of
public peace." Id. at 691. Anastaplo then asserts that the modern
"proliferation of weapons" disturbs the public peace. Id. Anastaplo
thereby confuses concern about the abuse of a right into opposition to the right
itself--as if being opposed to speeding were the same as being opposed to the ownership of
automobiles. Anastaplo does not address the fact that Rawle's position on the Second
Amendment is explicitly inconsistent with Anastopolo's claim that the early republic
understood the Second Amendment as guaranteeing no individual right.
106. Joseph Story, Commentaries
on the Constitution of the United States (Fred B. Rothman & Co. 1991) (1833).
107. Robert Cover, Justice
Accused: Antislavery and the Judicial process 238 (1975).
108. See McClellan, supra
note 79, at 40-41.
109. See Rawle, supra
note 96, at 295-310.
110. McClellan, supra
note 79, at 42. The treatises, which grew out of lectures at Harvard, are Promissory Notes
(1845), Bills of Exchange (1843), Partnership (1841), Agency (1839), Equity Pleadings
(1838), Equity Jurisprudence, 2 vol. (1836), The Conflict of Laws (1834), On the
Constitution, 3 vol. (1833), and Bailments (1832). In the 1997 movie Amistad,
retired Justice Harry Blackmun plays the role of Joseph Story.
111. Compare this language to
Tucker's statement that the militia "may be considered as the true palladium of
liberty." 1 Blackstone, supra note 14, app. at 300. Justice Thomas quoted
Story's language in his concurring opinion in Printz v. United States, 117 S. Ct.
2365, 2386 (1997) (Thomas, J., concurring).
112. 3 Story, supra
note 106, at 746, § 1890, quoted in Henigan, Arms, Anarchy, supra
note 2, at 119, and in Levinson, supra note 1, at 649.
113. See Henigan, Arms,
Anarchy, supra note 2, at 119.
114. 3 Story, supra
note 106, at 746-47, quoted in Henigan, Arms, Anarchy, supra note
2, at 119-20.
115.
It would be well for Americans to reflect upon the passage
in Tacitus, (Hist. IV. ch. 74): "Nam neque quies sine armis, neque arma sine
stipendiis, neque stipendia sine tributis, haberi queunt." Is there any escape
from a large standing army, but in a well disciplined militia? There is much wholesome
instruction on this subject in 1 Black. Comm. ch. 13, p. 408 to 417.
3 Story, supra note 106, at 747 n.1; see also
Henigan, Arms, Anarchy, supra note 2, at 120. Henigan
mistakenly asserts that the penultimate sentence is a translation of the Tacitus quote. See
Henigan, Arms, Anarchy, supra note 2, at 120. Actually, the
sentence is Story's own. The Tacitus quote, translated, is: "For the tranquillity of
nations cannot be preserved without armies; armies cannot exist without pay; pay cannot be
furnished without tribute; all else is common between us."
116. See Henigan, Arms,
Anarchy, supra note 2, at 119-20.
117. See supra text
accompanying note 96.
118. The footnotes appear in
support of the text quoted by Levinson. See 3 Story, supra note 106, at
746, nn.1-2 (citing "I Tucker's Black. Comm. App. 299" and "1 Tucker's
Black Comm. App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd's Debates 219, 220").
The last cited source, Lloyd's Debates, was a record of discussion in Congress.
Justice Story's citation is to the First Congress's debate of August 17, 1789, regarding
the Second Amendment. On the cited pages, the House has gone into a Committee of the
Whole. The text of the amendment under consideration reads: "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 arms shall not be infringed, but no person, being
religiously scrupulous, shall be compelled to bear arms." 2 Thomas Lloyd, The
Congressional Register; or, History of the Proceedings and Debates of the First House of
Representatives of the United States of America 219-21 (N.Y., Hodge, Allen, & Campbell
1789).
Massachusetts Representative Elbridge Gerry began:
This declaration of rights, I take it, is intended to
secure the people against the mal-administration 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 make a standing army necessary. Whenever government 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 actually done 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 divest them of their
inherent privileges, endeavored to counteract them by the organization of the militia, but
they were always defeated by the influence of the crown.
Id. at 220. Rep. Seney then asked whether there
was an issue before the committee of the whole. Rep. Gerry
[r]eplied, that he meant to make a motion, as he
disapproved of the words as they stood. He then proceeded, No attempts that 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 he wished the words to be altered so as to be confined to persons belonging to a
religious sect, scrupulous of bearing arms.
Id. Rep. Jackson moved that an exemption from
militia duty be granted "upon paying an equivalent to be established by law." Id.
at 221 (Lloyd's use of "f" for "s" changed to reflect modern usage).
The same material is also in House of Representatives Debates of August 17, 1789, reprinted
in Origin, supra note 37, at 695-96. Lloyd's records of Congressional
debates were not full transcripts, but rather his embellished reconstructions of the
speeches he thought most interesting; many persons accused Lloyd of inaccurate
representations of the debates. See Marion Tinling, Thomas Lloyd's Reports of
the First Federal Congress, 18 Wm. & Mary Q. 3d 519, 531-33 (1961).
In following pages (not cited by Story), the House
narrowly rejected a motion to delete the entire exemption for the religiously scrupulous
and leave exemptions for pacifists dependent on the beneficence of the legislature.
Rep. Gerry then moved to amend the first clause to read
"a well regulated militia, trained to arms," in order to ensure that the
government would not neglect militia training. The motion failed for lack of a second.
Rep. Burke moved for an additional amendment, denouncing standing armies, and requiring
two-thirds vote from both houses for a standing army to be raised. The motion was
defeated. The House spent the remainder of the day debating the proposals which became the
Third, Fourth, Fifth, and Sixth Amendments. See 2 Lloyd, supra, at
221-29.
As we shall see below, Gerry's view that the Second
Amendment's overarching purpose was to guarantee the survival of the state militia was
widely shared by nineteenth century courts and commentators. Like Justice Story, most of
the courts and commentators saw nothing inconsistent in the Amendment's purpose to protect
the militia (extolled by Gerry, Tucker, and Rawle, all of whom were cited by Story) and
the Amendment's protection of firearms ownership for personal uses (specifically mentioned
by Tucker and Rawle, and cited by Story).
119. See Andrews v.
State, 50 Tenn. (3 Heisk.) 165, 183-84 (1871), discussed infra in text
accompanying notes 210-227.
120. 3 Story, supra note
106, at 747 (footnotes omitted).
121. See Madison, supra
note 37.
122. Joseph Story, A Familiar
Exposition of the Constitution of the United States 264-65 (1842) (quoting U.S Const.
amend. II).
123. Henigan, Arms, Anarchy,
supra note 2, at 120.
124. Id.
How can the militia be a collection of citizens with the
constitutionally guaranteed right to engage in armed resistance against their government
if the Constitution itself grants Congress the power to call out the militia "to
execute the laws of the Union [and] suppress
insurrections . . . ."? The Constitution cannot view the militia both
as a means by which government can suppress insurrection and as an instrument for
insurrection against the government. It must be one or the other.
Id. at 115. Henigan ignores the fact that his
state's right theory implies a right of state governments to revolt against the federal
government. Henigan's theory (if he actually believed it as a matter of constitutional
interpretation, rather than as a defense against the Standard Model) would thereby
represent post hoc justification for the Confederate theory of secession in the
Civil War. See Lund, Past and Future, supra note 1, at 31-32
n.72.
125.
In the next place, the actual moral and intellectual
power, and even physical power, of the state in its present organization, may be so
combined in the structure of the government, that they may present insuperable barriers to
any change. If, for instance, the whole of the privileged classes should happen to be the
only educated persons in the nation; if the whole priesthood should depend upon the
government for its influence and support, and its exclusive patronage and privileges; if
the whole wealth of the community should be lodged in a few hands, and those few should be
the very heads of the government; if the military power should be so organized, that it
could scarcely find the means, or possess the power, to act except under the existing
arrangements;--in any, and in all of these cases, it is easy to perceive, that there would
be immense difficulties in introducing any fundamental and salutary change. It could
scarcely take place but upon some general convulsion, which could break asunder all the
common ties of society.
Joseph Story, Natural Law (1836), reprinted
in McClellan, supra note 79, at 318-19.
126. See McClellan, supra
note 79, at 6. Like many other legal analysts of his era, Story believed in a natural-law
right to self-defense since "self-preservation" was one of the duties that each
man naturally had to himself. "[A] man has a perfect right to his life, to his
personal liberty, and to his property; and he may by force assert and vindicate those
rights against every aggressor." Story, supra note 125, at 314-15.
127. As Alexander Hamilton
wrote:
If the federal government should overpass the just bounds
of its authority and make a tyrannical use of its powers, the people, whose creature it
[the Constitution] is, must appeal to the standard they have formed, and take such
measures to redress the injury done to the Constitution as the exigency may suggest and
prudence justify.
The Federalist No. 33 (Alexander Hamilton). Hamilton also
predicted that if the federal government attempted to use the militia to impose tyranny on
recalcitrant states, "whither would the militia" march itself "but to the
seat of the tyrants, who had meditated so foolish as well as so wicked a project; to crush
them in their imagined intrenchments of power and to make them an example of the just
vengeance of an abused and incensed people?" The Federalist No. 35 (Alexander
Hamilton.
128. See 3 Story, supra
note 106, at 81-95, §§ 1194-1210.
129. See id. at 81,
§ 1196.
130. Id. at 82,
§ 1197 (footnote omitted).
131. See Ehrman &
Henigan, supra note 2, at 7.
132. 3 Story, supra note
106, at 85, § 1202.
133. See id. at 85 n.5
& 86 nn.1-2, § 1202.
134. Id. at 87,
§ 1202.
135. See id. at 87
n.1, § 1202.
136. See David Cobin
& Paul Finkelman, Introduction to 1 Henry St. George Tucker, Commentaries on
the Law of Virginia: Comprising the Substance of a Course of Lectures Delivered to the
Winchester Law School, at i (The Lawbook Exchange, Ltd. 1998) (3d ed. 1846). Henry St.
George Tucker was not the literal "son" of St. George Tucker. Henry was actually
the child of a distant Bermuda relative. At an early age, however, Henry went to live with
St. George Tucker, who raised him, but never formally adopted him. See Armistead
M. Dobie, Henry St. George Tucker, in Dict. Am. Bio., supra
note 90.
137. Under Tucker's leadership,
the Virginia Court-in great contrast to other Southern courts of the time-often ruled in
favor of slaves whose manumission had been legally challenged. See Cobin &
Finkelman, supra note 136, at xxviii-xxix.
138. See Carrington, supra
note 19, at 333 n.1.
139. See Dobie, supra
note 136.
140. Tucker, supra
note 136.
141. Warren M. Billings, Seventeenth-Century
Virginia Law and Its Historians, With an Accompanying Guide to Sources, 87 L. Libr.
J. 556, 558 (1995).
142. Cobin & Finkelman, supra
note 136, at v.
143. A small book or manual
carried as a reference book. See 2 The New Shorter Oxford English Dictionary 3538
(3d ed. 1993).
144. 1 Tucker, supra
note 41, at 807.
145. Cobin & Finkelman, supra
note 136.
146. 1 Tucker, supra
note 136, at 42-43. In other writings, the younger Tucker extolled the natural right to
reform or abolish the government, and the natural right to self-defense. See
Henry St. George Tucker, A Few Lectures on Natural Law 10-11, 95-99 (1844); Henry St.
George Tucker, Lectures on Government 37 (1844).
147. 1 Tucker, supra
note 136, at 43.
148. Id.
149. Id.
150. Philip A. Hamburger, Natural
Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907, 953 n.124 (1993);
see also Benjamin L. Oliver, The Law Summary: A Collection of Legal Tracts on
Subjects of General Application in Business (2d ed., Fred B. Rothman & Co. 1995)
(1831).
151. Benjamin L. Oliver, The
Rights of an American Citizen; with a Commentary on State Rights, and on the Constitution
and Policy of the United States 174 (1832). The book was cited by the dissent in Harmelin
v. Michigan, 501 U.S. 957, 1009-10 (1991) (White, J., dissenting) for the proposition
that the Eighth Amendment forbids punishments disproportionate to the underlying offense.
152. See Bliss v.
Commonwealth, 12 Ky. (2 Litt.) 90 (1822).
If, therefore, the act in question imposes any restraint
on the right, immaterial what appellation may be given to the act, whether it be an act
regulating the manner of bearing arms or any other, the consequence, in reference to the
constitution, is precisely the same, and its collision with that instrument equally
obvious.
Id. at 92. "For, in principle, there is no
difference between a law prohibiting the wearing concealed arms [sic], and a law
forbidding the wearing such as are exposed; and if the former be unconstitutional, the
latter must be so likewise." Id. "[I]f 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." Id. at 93.
153. Oliver, supra
note 151, at 176-78.
154. Id. at 178.
Another passage described self-defense as a natural right:
There are some other rights, which are reserved to the
people, though not mentioned in the general constitution. Among these is the right of
self-defence, in cases where the danger is so imminent, that the person in jeopardy, may
suffer irreparable injury, if he waits for the protection of the
laws. . . . as the compact between him and society is mutual, if society is
unable to protect him, his natural right revives to protect himself.
Id. at 186. Also, "Of those rights which
are usually retained in organized society, . . . [t]he first and most
important of these rights, is that of self-defence." Id. at 40.
155. James Bayard, A Brief
Exposition of the Constitution of the United States 4 (Fred B. Rothman & Co. 1992) (2d
ed. 1845).
156. Id. at 3.
157. Id. at 147.
158. See U.S. Const.
amend. III: "No Soldier shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a manner to be prescribed by
law."
159. Bayard, supra
note 155, at 148.
160. See Lois G.
Schwoerer, "No Standing Armies!" The Antimilitary Ideology in
Seventeenth-Century England (1974); William S. Fields & David T. Hardy, The Third
Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35
Am. J. Legal Hist. 393, 402-13 (1991); Malcolm, supra note 1, at 6-15.
161. See Kates, Self-Protection,
supra note 1, at 100 ("As Englishmen and Americans were well aware from
their reading of Bodin, Beccaria and Montesquieu, the Huguenots had been rendered
incapable of resisting either individually or as a group by the Continental policy of
disarming all but the Catholic nobility.").
[T]he most atrocious-and effective-were the dragonnades,
or billeting of dragoons on Huguenot families with encouragement to behave as viciously as
they wished. Notoriously rough and undisciplined, the enlisted troops of the dragoons
spread carnage, beating and robbing the householders, raping the women, smashing and
wrecking and leaving filth . . . .
Barbara W. Tuchman, The March of Folly 21 (1984).
162. See Steven Alan
Samson, Francis Lieber on the Sources of Civil Liberty, 9 Humanitas 1-2 (1996)
(visited Mar. 16, 1998) < http://www.nhumanities.org/ samson.htm > .
163. See id.; Francis
Lieber, On Civil Liberty and Self-Government 5 (Theodore D. Woolsey ed., Da Capo Press
1972) (3d ed. 1877).
164. Lieber, supra
note 163, at 120 (quoting U.S. Const. amend. II). Lieber's Second Amendment quotation was,
of course, slightly in error. The word "upon" is not part of the Amendment. See
also Francis Lieber, Anglican and Gallican Liberty, in 2 The
Miscellaneous Writings of Francis Lieber 373-75 (David C. Gilman ed., 1880); Samson, supra
note 162 (discussing the fact that Lieber listed the right to arms and the right to
resist unlawful authority as among the essential rights of a society in which civil
liberty is secure).
A southern reviewer of another Lieber book, Manual of
Political Ethics (1839), used the review to defend slavery under the Constitution;
the reviewer included the right to arms in a litany of individual rights that the
Constitution guaranteed to free men:
To the people, the habeas corpus act,
the trial by jury, the exemption from excessive bail, and the quartering of soldiers, and
the right to keep and bear arms, was secured; but these privileges only applied to free
people, and not to persons held to service or labor in one State, who might escape into
another . . . .
Lieber's Political Ethics, 24 S. Q. Rev. 464, 481
(Oct. 1847).
165. For the sake of
completeness, two other treatises written before the Civil War should be mentioned.
Maurice Richter's 1859 The Municipalist examined the relationship between local
and federal power. He argued that many provisions of the Bill of Rights would make sense
in Europe as restraints on central power, but that these provisions were of no use in the
United States, since the national government had no affirmative power to violate those
rights. Thus, for the Second Amendment, Richter wrote, "Good for Europe. We have read
the dispositions of the constitution [in Article I] about the militia. Congress has no
power to legislate on the keeping and bearing of arms, except in the District of
Columbia." Maurice A. Richter, Internal Relations of the Cities, Towns, Villages,
Counties, and States of the Union; or the Municipalist: A Highly Useful Book for Voters,
Tax-Payers, Statesmen, Politicians and Families 133 (N.Y., Ross & Tousey, 2d ed.
1859), available online
< http://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=AEW4742) > .
William Duer's lectures on the
Constitution at Columbia College in the 1830s were published as William Alexander Duer, A
Course of Lectures on the Constitutional Jurisprudence of the United States (Burt Franklin
Press 1971) (1856). Duer's lengthy analysis of federal militia powers and standing armies
said nothing about the Second Amendment. See id. at 196-210. His discussion of
constitutional amendments amounted to summary quotations of Amendments four through eight,
with no mention of Amendments one through three, nine, or ten. Id. at 39-40. His
discussion of natural rights paraphrased Blackstone's three primary rights (personal
security, personal liberty, and private property) and five auxiliary rights (legislative
authority; limits on the king's prerogative; the right to apply to court for redress of
injury, and the associated rights of trial by jury and habeas corpus; the right to
petition; and "of keeping arms for defence; which was, indeed, a public allowance,
under certain restrictions, of the natural right of resistance and
self-preservation"). Id. at 36-37. Duer's list of Blackstone's auxiliary
rights contained a footnote to the Seventh Amendment for "Trial by Jury." There
was no citation to Article I for habeas corpus, to the First Amendment for the right to
petition, nor to the Second Amendment for the right to arms. See id.
A footnote concerning the auxiliary right
to arms discussed a Kentucky case holding a law against wearing concealed arms void under
the Kentucky Constitution and likewise voiding a law against free blacks defending
themselves against white aggressors. See id. at 37 n.1; see also infra
text accompanying notes 394-95. Regarding the self-defense issue, a contrary case was also
cited. See id.
166. 1
Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the
Federal Constitution, at xv (2d ed., 2d prtg. 1937).
167. Kemp Mallone, Noah Webster, in Dict. Am. Bio., supra note 90.
168. See Marshall
Smelser, The Democratic Republic: 1801-1815, at 32 n.27 (1968).
169. Noah
Webster, An American Dictionary of the English Language (1828).
170. 2 Id.
at 54. Similarly, George Cabot--a Federalist and one of the richest men in New
England--wrote that society should function like a "well regulated family" with
"each one learning his proper place and keeping to it." Robert E. Shalhope, Individualism
in the Early Republic, in American Chameleon: Individulaism in
Trans-national Context 66, 67 (Richard O. Curry & Lawrence B. Goodheart eds., 1991)
(citing David H. Fischer, The Revolution of American Conservativism (1965)). Thus, in
"a well regulated militia," the militia-men would be able to march and deploy
for combat in proper formations, with each militia-man knowing his place.
171. See
Randy E. Barnett, Necessary and Proper, 44 UCLA L. Rev. 745, 775 (1997). Or as
Congressman Daniel Webster explained, regarding federal power to "regulate"
international commerce, "To regulate . . . could never mean to
destroy." Robert V. Remini, Daniel Webster: The Man and His Time 94 (1997).
172. 2
Webster, supra note 169, at 15.
173. 2 id.
at 21.
174. 2 id.
at 66.
175. 1 id.
at 87.
176. 2 id.
at 80.
177. 2 id.
at 59.
178. 2 id.
at 32.
179. 2 id.
at 2.
180. 1 id.
at 19.
181. Id.
182. See,
e.g., Aymette v. State, 21 Tenn. (2 Hum.) 154, 161 (1840).
183. The
Address and Reasons of Dissent of the Minority of the Convention of the State of
Pennsylvania to their Constituents (Dec. 18, 1787), reprinted in Origin, supra
note 37, at 154, 160.
184. See
discussion infra note 190.
185.
Muscarello v. United States, 118 S. Ct. 1911, 1921 (1998) (Ginsburg, J., dissenting)
(omissions in original).
186. 1
Webster, supra note 169, at 13.
187. 1 id.
at 110.
188. Noah
Webster, An Examination into the Leading Principles of the Federal Constitution, in
Pamphlets on the Constitution of the United States 55, 56 (Paul Leicester Ford ed.,
Brooklyn 1888).
Often confused with Noah Webster, but having no relation,
was Massachusetts Senator Daniel Webster, perhaps the greatest orator of the nineteenth
century. Among the most famous of all Webster's public speeches was "The Plymouth
Oration," which he delivered at Plymouth Rock on December 22, 1820--the bicentennial
of the Pilgrim landing. Webster, who was an avid hunter all his life, traced the
connection between the social conditions created by the Pilgrims and the current condition
of American freedom; he emphasized that the social conditions, and not just the formal
Constitution, were essential ingredients of freedom: "The practical character of
government depends often on a variety of considerations, besides the abstract frame of its
constitutional organization. Among these are the condition and tenure of
property . . . an armed or unarmed yeomanry." Further,
"[e]ducation, wealth, talents, are all parts and elements of the general aggregate of
power; but numbers, nevertheless, constitute ordinarily the most important consideration,
unless, indeed, there be a military force in the hands of the few, by which they
can control the many." Daniel Webster, The Plymouth Oration, Dec. 22, 1820, available
in part at < http://www.dartmouth.edu/~dwebster/speeches/plymouth~oration.html
> .
189. Clayton Cramer's book
provides a superb survey of state firearms constitutional case law in the nineteenth
century. See Cramer, supra note 1. The works of other scholars offer
useful studies of particular states in the nineteenth century. See Stephen
Halbrook, A Right To Bear Arms: State And Federal Bills Of Rights And Constitutional
Guarantees (1989); Robert Dowlut, Federal and State Constitutional Guarantees to Arms,
15 U. Dayton L. Rev. 59 (1989); Robert Dowlut, The Right to Arms, supra
note 1; Robert Dowlut & Janet A. Knoop, State Constitutions and the Right to Keep
and Bear Arms, 7 Okla. City U. L. Rev. 177 (1982); Stephen P. Halbrook, Rationing
Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of
Virginia, West Virginia, and the United States, 96 W. Va. L. Rev. 1 (1993); Stephen
P. Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills
of Rights, 41 Baylor L. Rev. 629 (1989); Glenn Harlan Reynolds, The Right to Keep
and Bear Arms under the Tennessee Constitution: A Case Study in Civic Republican Thought,
61 Tenn. L. Rev. 647 (1994).
190. Many thanks to Eugene Volokh, who compiled these provisions, and who has made them available at
< http://www.law.ucla.edu/faculty/volokh/beararms/statecon.htm > , to which all
following cites are made.
Alabama: "That every citizen has a right to
bear arms in defense of himself and the state." Art. I, § 26 (enacted 1819,
art. I, § 23, with "defence" in place of "defense," spelling
changed 1901).
Arkansas: "The citizens of this State shall
have the right to keep and bear arms for their common defense." Art. II, § 5
(1868). This replaced the 1836 provision: "That the free white men of this State
shall have a right to keep and to bear arms for their common defense." Art. II,
§ 21.
California: No provision.
Colorado: "The right of no person to keep
and bear arms in defense of his home, person and property, or in aid of the civil power
when thereto legally summoned, shall be called in question; but nothing herein contained
shall be construed to justify the practice of carrying concealed weapons." Art. II,
§ 13 (1876).
Connecticut: Although Connecticut had been one of
the original thirteen states, it added a right to arms provision to its constitution in
1818: "Every citizen has a right to bear arms in defense of himself and the
state." Art. I, § 15 (enacted 1818, art. I, § 17). The original 1818 text
came from the Mississippi Constitution of 1817.
Florida: Upon admission to the Union in 1838, the
Florida constitution provided: "That free white men of this State shall have a right
to keep and to bear arms, for their common defence." Art. I, § 21. The 1865
Constitution, a white supremacist document, made no mention of a right to arms. The 1868
Constitution, a Reconstruction document, provided, "The people shall have the right
to bear arms in defence of themselves and of the lawful authority of the State." Art.
I, § 22. This was modified in 1885 to allow restrictions on the carrying of arms:
"The right of the people to bear arms in defence of themselves, and the lawful
authority of the State, shall not be infringed, but the Legislature may prescribe the
manner in which they may be borne." Art. I, § 20.
Georgia: The state's original constitution had no
right to arms, which impelled an 1845 Georgia Supreme Court decision striking down gun
control to rely on the Second Amendment and natural law. The 1865 and 1868 Georgia
Constitutions did include an arms right. 1865: "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." Art. I, § 4. 1868: "A well-regulated militia
being necessary to the security of a free people, the right of the people to keep and bear
arms shall not be infringed; but the general assembly shall have power to prescribe by law
the manner in which arms may be borne." Art. I, § 14. The provision took its
final form in the 1877 Constitution: "The right of the people to keep and bear arms
shall not be infringed, but the General Assembly shall have power to prescribe the manner
in which arms may be borne." Art. I, § I, ¶ VIII.
Idaho: The 1889 statehood Constitution stated:
"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." Art. I, § 11.
Illinois: The state had no right to arms until
the adoption of a new constitution in 1970.
Indiana: The right to arms in the 1816 statehood
constitution ("That the people have a right to bear arms for the defense of
themselves and the State, and that the military shall be kept in strict subordination to
the civil power." Art. I, § 20) was revised in 1851 to state: "The people
shall have a right to bear arms, for the defense of themselves and the State." Art.
I, § 32.
Iowa: No provision.
Kansas: "The people have the right to bear
arms for their defense and security; but standing armies, in time of peace, are dangerous
to liberty, and shall not be tolerated, and the military shall be in strict subordination
to the civil power." Bill of Rights, art. I, § 4 (1859).
Kentucky: The Kentucky Constitution of 1792
provided: "The right of the citizens to bear arms in defense of themselves and the
State shall not be questioned." Art. XII, § 23. It was changed slightly in
1799: "That the rights of the citizens to bear arms in defense of themselves and the
State shall not be questioned." Art. X, § 23. An 1850 revision addressed a
court case from several decades before and specifically authorized restrictions on
concealed arms: "That the rights of the citizens to bear arms in defense of
themselves and the State shall not be questioned; but the General Assembly may pass laws
to prevent persons from carrying concealed arms." Art. XIII, § 25. The
provision took its modern form in 1891:
All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned:
First: The right of enjoying and defending their lives and
liberties.
. . . .
Seventh: The right to bear arms in defense of themselves
and of the State, subject to the power of the General Assembly to enact laws to prevent
persons from carrying concealed weapons. Bill of Rights § 1.
Louisiana: The 1879 Constitution stated: "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 abridged. This shall not prevent the passage of
laws to punish those who carry weapons concealed." Art. 3.
Maine: The 1819 Constitution stated "Every
citizen has a right to keep and bear arms for the common defense; and this right shall
never be questioned." Art. I, § 16. In 1987, after a state court decision which
interpreted the Maine provision as recognizing no individual right, the Constitution was
amended to provide: "Every citizen has a right to keep and bear arms and this right
shall never be questioned." Art. I, § 16.
Michigan: "Every person has a right to bear
arms for the defence of himself and the state." Art. I, § 6 (1835).
Minnesota: No provision.
Mississippi: The state's first Constitution, in
1817, provided: "Every citizen has a right to bear arms, in defence of himself and
the State." Art. I, § 23. The comma was removed in 1832. The 1868
Reconstruction Constitution changed the wording to: "All persons shall have a right
to keep and bear arms for their defence." Art. I, § 15. In 1890, the provision
was rewritten to copy a formulation common in late-19th century rights to arms, making
explicit the many purposes of the right to arms, and also the authority of the legislature
to control concealed weapons: "The right of every citizen to keep and bear arms in
defense of his home, person, or property, or in aid of the civil power when thereto
legally summoned, shall not be called in question, but the legislature may regulate or
forbid carrying concealed weapons." Art. III, § 12.
Missouri: The form used in Mississippi, Colorado,
and Montana first appeared in the 1875 Missouri Constitution: "That the right of no
citizen to keep and bear arms in defense of his home, person and property, or in aid of
the civil power, when thereto legally summoned, shall not be called into question; but
nothing herein contained is intended to justify the practice of wearing concealed
weapons." Art. II, § 17. The provision replaced language from 1820: "That
the people have the right peaceably to assemble for their common good, and to apply to
those vested with the powers of government for redress of grievances by petition or
remonstrance; and that their right to bear arms in defence of themselves and of the State
cannot be questioned." Art. XIII, § 3. The 1865 Constitution had copied the
1820 language, except to substitute "the lawful authority of the State" for
"the State." Art. I, § 8.
Montana: "The right of any person to keep or
bear arms in defense of his own home, person, and property, or in aid of the civil power
when thereto legally summoned, shall not be called in question, but nothing herein
contained shall be held to permit the carrying of concealed weapons." Art. III,
§ 13.
Nebraska: No arms right provision until 1988.
Nevada: No provision until 1982.
North Carolina: The 1868 Constitution
substantially followed the arms provision in the 1776 Constitution ("That the people
have a right to bear arms, for the defence of the State; and, as standing armies, in 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." Bill
of Rights, § XVII) and stated: "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; and, as standing armies in time of peace are dangerous to liberty, they shall
not be maintained, and the military shall be kept under strict subordination to, and
governed by, the civil power." Art. I, § 24. In 1875, concealed weapons control
was added: "Nothing herein contained shall justify the practice of carrying concealed
weapons, or prevent the General Assembly from enacting penal statutes against that
practice."
North Dakota: No right to arms until 1984.
Ohio: The original 1802 provision stated
"That the people have a right to bear arms for the defence of themselves and the
state; and as standing armies in time of peace, are dangerous to liberty, they shall not
be kept up, and that the military shall be kept under strict subordination to the civil
power." Art. VIII, § 20. The language was modernized in 1851: "The people
have the right to bear arms for their defense and security; but standing armies, in time
of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in
strict subordination to the civil power." Art. I, § 4.
Oregon: "The people shall have the right to
bear arms for the defence of themselves, and the State, but the Military shall be kept in
strict subordination to the civil power." Art. I, § 27 (enacted 1857, as art.
I, § 28).
Rhode Island: The state had no constitution until
1842. The 1842 constitution stated: "The right of the people to keep and bear arms
shall not be infringed." Art. I, § 22.
South Carolina: The original constitution had no
right to arms. The 1868 Constitution added one: "The people have a right to keep and
bear arms for the common defence. As, in times of peace . . . ."
Art. I, § 28. This was revised in 1895 to more closely parallel the Second
Amendment: "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. As, in times of
peace, armies are dangerous to liberty, they shall not be maintained without the consent
of the General Assembly. The military power of the State shall always be held in
subordination to the civil authority and be governed by it." Art. 1, § 20.
South Dakota: "The right of the citizens to
bear arms in defense of themselves and the state shall not be denied." Art. VI,
§ 24 (1889).
Tennessee: The 1834 state constitution's right to
arms exactly matched the language of the original 1796 constitution: "That the
freemen of this State have a right to keep and to bear arms for their common
defence." Art. XI, § 26. The Reconstruction Constitution added legislative
power to control the carrying of arms: "That the citizens of this State have a right
to keep and to bear arms for their common defense; but the Legislature shall have power,
by law, to regulate the wearing of arms with a view to prevent crime." Art. I,
§ 26 (1870).
Texas: When the Texan nation gained independence
in 1836, the Declaration of Rights provided: "Every citizen shall have the right to
bear arms in defence of himself and the republic. The military shall at all times and in
all cases be subordinate to the civil power." Declaration of Rights, cl. 14. When
Texas joined the Union in 1845, the new Constitution stated: "Every citizen shall
have the right to keep and bear arms in lawful defence of himself or the State." Art.
I, § 13. The Reconstruction Constitution of 1868 declared: "Every person shall
have the right to keep and bear arms in the lawful defence of himself or the State, under
such regulations as the legislature may prescribe." Art. I, § 13. The final
version appeared in 1876: "Every citizen shall have the right to keep and bear arms
in the lawful defense of himself or the State; but the Legislature shall have power, by
law, to regulate the wearing of arms, with a view to prevent crime. Art. I, § 23.
Utah: "The people have the right to bear
arms for their security and defense, but the legislature may regulate the exercise of this
right by law." Art. I, § 6 (1896).
Washington: The state's 1889 provision was
typical of its time, except for its explicit statement about armed groups, including
company goon squads: "The right of the individual citizen to bear arms in defense of
himself, or the state, shall not be impaired, but nothing in this section shall be
construed as authorizing individuals or corporations to organize, maintain or employ an
armed body of men." Art. I, § 24.
West Virginia: No provision until 1986.
Wisconsin: No provision until 1998.
Wyoming: "The right of citizens to bear arms
in defense of themselves and of the state shall not be denied." Art. I, § 24
(1889).
191. See Constitution
for the Provisional Government of the Confederate States of America, art. I, § 7,
cl. 10; Constitution of the Confederate States of America, art. I, § 9, cl. 13, reprinted
in Charles Robert Lee, Jr., The Confederate Constitutions apps. B & C (1963). The
Confederate Constitution adopted the United States Constitution's Bill of Rights word for
word. See id.
192. La. Const. art. 3.
193. Ga. Const. art. I,
§ 14 (1868).
194. See Hill v.
State, 53 Ga. 472, 473-83 (1874).
195. See, e.g., Ehrman
& Henigan, supra note 2, at 14-32.
196. Ohio Const. art. I,
§ 4. This language revised the 1802 language: "That the people have a right to
bear arms for the defence of themselves and the state; and as standing armies in time of
peace, are dangerous to liberty, they shall not be kept up; and that the military shall be
kept under strict subordination to the civil power." Ohio Const. art. VIII,
§ 20 (1802).
197. See, e.g., Arnold
v. City of Cleveland, 616 N.E.2d 163, 169-71 (Ohio 1993); In re Reilly, 31 Ohio
Dec. 364 (C.P. 1919).
198. N.C. Const. art. I,
§ 24 (1868).
199. Id. § 30
(1875).
200. See, e.g., State
v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Speller, 86 N.C. 697, 699-701 (1882); State
v. Newsom, 27 N.C. (5 Ired.) 250, 253-54 (1844); State v. Huntly, 25 N.C. (3 Ired.) 418,
422-23 (1843).
201. For an excellent survey of
the racial implications of nineteenth century arms control in the South, see Robert
J. Cottrol & Raymond T. Diamond, "Never Intended to be Applied to the White
Population": Firearms Regulation and Racial Disparity--The Redeemed South's Legacy to
a National Jurisprudence?, 70 Chi.-Kent L. Rev. 1307 (1995), Clayton E. Cramer, The
Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol'y 17 (1995), and Stefan B.
Tahmassebi, Gun Control and Racism, 2 Geo. Mason U. Civ. Rts. L.J. 67 (1991).
202. See generally
Clayton Cramer, Concealed Weapons Laws in the Early Republic (1998) (unpublished Master's
thesis in History, Sonoma State University) (on file with author).
203. See Aymette v.
State, 21 Tenn. (2 Hum.) 154 (1840). For the history of the right to arms in Tennessee,
see Glenn Harlan Reynolds, The Right to Keep and Bear Arms Under the Tennessee
Constitution: A Case Study in Civic Republican Thought, 61 Tenn. L. Rev. 647 (1994).
204. Aymette, 21 Tenn.
at 157.
205. Id.
206. See id.
at 161.
207. Id. at 158.
208. Id. at 160. A
good argument could be made that there is not as much difference between militia weapons
and crime weapons as Aymette and the nineteenth century majority line of cases
would suggest. Concealable knives may be useful for hand-to-hand combat and for guerilla
warfare, and small handguns even more so. Conversely, rifles can be used to murder
innocent people.
209. Aymette may have
been too facile in equating the arms right provision in the Tennessee Constitution with
the Second Amendment. The Tennessee Constitution protected "the right of the people
to keep and bear arms for their common defence" and thus contained restrictive
language which the U.S. Senate had voted not to include in the Second Amendment. While
common defense may have been the only purpose of the Tennessee right, the Second Amendment
language was broad enough to include other purposes, such as self-defense. See 1
Blackstone, supra note 14, app. at 300. The Aymette court's theory that
concealed carry was not within the scope of the arms right was predicated on reasoning
that a militia-man would never carry concealed. But while concealed carry might be of no
use to someone engaged in the "common defence," concealed carry could be quite
useful for personal defense. Thus Aymette, and the cases from other states which
cite to Aymette, may be on shaky ground to the extent that the other state cases
involve constitutional provisions worded more broadly than Tennessee's.
210. See Andrews v.
State, 50 Tenn. (3 Heisk.) 165 (1871).
211. See id. at 168.
212. Id. at 170.
213. Barron v. Baltimore, 32
U.S. (7 Pet.) 243 (1833).
214. See Andrews, 50
Tenn. at 173-75.
215. Id. at 177.
216. Id. at 178-79. A
"repeater" is "any firearm capable of firing more than one shot without
having to be reloaded manually." R.A. Steindler, Steindler's New Firearms Dictionary
213 (1985); see also 2 The New Shorter Oxford English Dictionary 2548 (3d ed.
1993) (defining "repeater" as "[a] firearm which fires several shots
without reloading," and explaining that this usage first appeared in the middle
nineteenth century).
217. Andrews, 50 Tenn.
at 182.
218. State v. Staten, 46 Tenn.
(6 Cold.) 233, 277, 279 (1869) (Shackleford, J., concurring). The state court explained:
The right of suffrage being a political, and not a natural
or inherent right, the sovereign power has the right to restrict or enlarge the privilege.
. . .
. . . The one [the right to follow a profession] is an
inherent and natural right, and [the right to vote], a political right or privilege, a
trust delegated. The first falls directly within the prohibitions of the Constitution of
the United States; the other is a trust, subject to be revoked by the sovereign will.
Id. at 277-79. Ridley v. Sherbrook, 43
Tenn. (3 Cold.) 569, 576-77 (1866), is also instructive of this distinction:
The elective franchise is not an inalienable right or
privilege, but a political right, conferred, limited, or withheld, at the pleasure of the
people, acting in their sovereign capacity.
. . . .
These [rights to follow a profession or calling] are civil
rights, and inalienable, and of which he cannot be deprived by the people of the State.
But a political right stands upon a very different principle; it is a political privilege
or grant, that may be extended or recalled, at the will of the sovereign power.
Id.
219. Andrews, 50 Tenn.
at 182.
220. See id. at 183; see
also supra notes 112, 114 and accompanying text.
221. Id. at 183-84.
222. 21 Tenn. (2 Hum.) 154
(1840).
223. See Andrews, 50
Tenn. at 184-85 (quoting Amyette v. State, 21 Tenn. (2 Hum.) 154 (1840)).
224. Id. at 186.
225. Id. at 187. This
formulation closely prefigured the U.S. Supreme Court's handling of a challenge to a
federal law prohibiting unregistered possession of short shotguns; the Court sent the case
back to trial court to determine if short shotguns were militia-type weapons. See United
States v. Miller, 307 U.S. 174, 178-83 (1939).
226. See Andrews, 50
Tenn. at 187-88.
227. See id. at
193-95.
228. See State v.
Buzzard, 4 Ark. 18 (1842).
229. See Ark. Const.
of 1836, art. II, § 21 ("That the free white men of this State shall have a
right to keep and to bear arms for their common defence."). The Arkansas Constitution
was one of a few of the nineteenth century state constitutions to include a "common
defence" purpose and no other. During Senate debate over the Second Amendment, the
United States Senate rejected a motion to add "for the common defense" to the
end of the Second Amendment. See Senate Journal, Sept. 9, 1789, attested by Sam
A. Otis, Secretary of the Senate, Executive Communications, box 13, p.1, Virginia State
Library and Archives, cited in Dennis, supra note 1, at 70 n.54; Senate
Subcomm. on the Const., supra note 1, at 6.
230. See Buzzard, 4
Ark. at 19-23.
231. Id. at 24.
232. Id. at 24-25.
233. See id. at 27.
234. Id. at 28.
235. Id. at 32
(Dickinson, J., concurring).
236. See id. at 33
(Dickinson, J., concurring).
237. Id. at 35 (Lacy,
J., dissenting).
238. Carroll v. State, 28 Ark.
99, 101 (1872).
239. Id.
240. See Fife v.
State, 31 Ark. 455, 456 (1876).
241. See id. at 458.
242. See id. at
458-59. Regarding the Second Amendment, the court cited 3 Story, supra note 106,
at 750-51, §§ 1896-97, and Thomas Cooley, infra note 395, at 498, to
support the statement that
the arms which it [the Second Amendment] guarantees
American citizens the right to keep and to bear, are such as are needful to, and
ordinarily used by a well regulated militia, and such as are necessary and suitable to a
free people, to enable them to resist oppression, prevent usurpation, repel invasion,
etc., etc.
Fife, 31 Ark. at 458.
243. See Fife, 31 Ark.
at 461-62.
244. See id. at 461.
245. Wilson v. State, 33 Ark.
557, 560 (1878) (striking a ban on unconcealed carry).
246. See Nunn v.
State, 1 Ga. 243 (1846).
247. Id. at 246.
248. Id. at 247.
249. Id. at 249.
250. Id. at 250.
251. Id.
252. Id. at 251.
253. Id. For the
impact of the right to arms on the Texas war for independence against Mexico--which was
precipitated by the Mexican government's attempt to confiscate a cannon, and the Texans'
reply of "Come and take it," see Stephen P. Halbrook, The Right to Bear Arms
in Texas: The Intent of the Framers of the Bills of Rights, 41 Baylor L. Rev. 629
(1989).
254. Nunn, 1 Ga. at
251. The Nunn Court's approach to natural rights was not unusual for its
time. In an 1857 Massachusetts case, Chief Justice Lemuel Shaw--perhaps the most
influential state court judge of the period--used principles of "natural
justice" to find that the state constitution required the use of grand juries for
infamous crimes, despite the absence of any grand jury language in the Massachusetts Bill
of Rights. See Jones v. Robbins, 72 Mass. (8 Gray) 329 (1857).
255. See Hill v.
State, 53 Ga. 472, 473-74 (1874). Justice McCay opined that if the question were one of
first impression, he would hold that both the Second Amendment and the Georgia provision
only protected "the arms of a militiaman, the weapons ordinarily used in battle,
to-wit: guns of every kind, swords, bayonets, horseman's pistols, etc." Id.
at 474. But, he admitted, Nunn v. State required a much broader definition. See
id. at 475.
256. See State v.
Chandler, 5 La. Ann. 489, 490 (1850).[The law] interfered with no man's right to carry
arms (to use its words) "in full open view," which places men upon an equality.
This is the right guaranteed by the Constitution of the United States, and which is
calculated to incite men to a manly and noble defence of themselves, if necessary, and of
their country, without any tendency to secret advantages and unmanly assassinations.
Id.
257. See Smith v.
State, 11 La. Ann. 633, 633 (1856).
The statute against carrying concealed weapons does not
contravene the second article of the amendments of the Constitution of the United States.
The arms there spoken of are such as are borne by a people in war, or at least carried
openly. The article explains itself. It is in these words: "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 was never intended to prevent the individual
States from adopting such measures of police as might be necessary, in order to protect
the orderly and well disposed citizens from the treacherous use of weapons not even
designed for any purpose of public defence, and used most frequently by evil-disposed men
who seek an advantage over their antagonists, in the disturbances and breaches of the
peace which they are prone to provoke.
Id.
258. See State v.
Jumel, 13 La. Ann. 399, 399-400 (1858) ("The statute in question does not infringe
the right of the people to keep or bear arms. It is a measure of police, prohibiting only a
particular mode of bearing arms which is found dangerous to the peace of
society.").
259. See State v.
Newsom, 27 N.C. (5 Ired.) 250, 251 (1844) (upholding restriction against possession of
arms by free people of color since they were not parties to the constitutional compact).
260. N.C. Bill of Rights
§ XVII (1776); see supra note 190.
261. See Newsom, 27
N.C. at 254-55.
262. See State v.
Kerner, 107 S.E. 222, 224-26 (N.C. 1921) (citing Cooley to declare unconstitutional a law
against carrying pistols, openly or concealed, on public property); State v. Speller, 86
N.C. 697, 700-01 (1882); State v. Huntly, 25 N.C. (3 Ired.) 418, 422-23 (1843); see
also Carl W. Thurman, III, Note, State v. Fennell: The North Carolina Tradition
of Reasonable Regulation of the Right to Bear Arms, 68 N.C. L. Rev. 1078 (1990)
(discussing various twentieth century cases).
263. See Cockrum v.
State, 24 Tex. 394, 397 (1859).
264. Id. at 402.
265. Id.
266. See id. at
402-03. "The right to carry a bowie-knife for lawful defense is secured, and must be
admitted. It is an exceeding destructive weapon. . . . The gun or pistol
may miss its aim . . . . The bowie-knife . . . is the
instrument of almost certain death." Id. at 403.
267. See English v.
State, 35 Tex. 473, 474-75 (1872).
268. The English case
highlights the flip side of the "civilized warfare" coin: if "civilized
warfare" was a good rationale for excluding various small weapons from the right to
arms, it could also imply the right to own all military type weapons. However, as Don
Kates points out, the textual language "keep and bear" suggests that
only personally portable weapons are within the scope of the right to "arms";
therefore, the siege gun and other forms of crew-served, non-portable artillery would not
be covered by the arms right. See Kates, Handgun Prohibition, supra
note 1, at 261.
269. English, 35 Tex.
at 476-77.
270. State v. Duke, 42 Tex.
455, 458 (1875).
271. Id.
272. See id.
273. See Dunne v.
People, 94 Ill. 120, 124-28 (1879).
274. The court was quoting
language from Article I, Section 8 of the Constitution, which in fact gives such authority
to Congress. This grant is not inconsistent with pre-existent state authority, so long as
the state authority is not used in conflict with the federal authority. See
Houston v. Moore, 14 U.S. (1 Wheat.) 1, 16-17 (1820) (holding that state authority over
the militia pre-exists the Constitution); 1 Blackstone, supra note 14,
app. at 273.
275. Dunne, 94 Ill. at
132-33.
276. See W. Va. Const.
art. 3, § 22 ("A person has the right to keep and bear arms for the defense of
self, family, home and state, and for lawful hunting and recreational use.") (enacted
in 1986); see also Halbrook, supra note 19, at 68.
277. State v. Workman, 35 W.
Va. 367, 367 (1891).
278. Id. (quoting W.
Va. Code ch. 148, § 7).
279. Id. at 372.
280. Id. at 373
(citing Bish. Crim. St. § 792). Further, the court explained, the Second Amendment
was intended to protect "public liberty," and incorporated various restrictions
from English law regarding the carrying of weapons. Id. at 372-73.
281. In addition to the cases
discussed above, see Walburn v. Territory, 59 P. 972, 973 (Okla. 1899) (holding
that a concealed weapon statute "violates none of the inhibitions of the constitution
of the United States").
282. In addition to the cases
discussed above, see State v. Shelby, 90 Mo. 302 (1886) (holding that the Second
Amendment is inapplicable to the states; that a law against carrying concealed weapons in
certain places except when necessary for personal defense is valid; that a law against
carrying a weapon while intoxicated is valid; and that a "revolving pistol" is
within scope of state right to arms).
283. But not everyone thought
that dirks were only for scoundrels. Nathaniel Beverly Tucker, son of St. George Tucker
(and, like his father, a law professor at William and Mary and a state court judge) wrote
a novel in which one of the heroes (a Virginian who is participating in a guerilla war
against a tyrannical federal government) carries a dirk. See Nathaniel Beverly
Tucker, The Partisan Leader: A Tale of the Future 12 (1971) (1856).
284. See, e.g., Kates,
Handgun Prohibition, supra note 1, at 246; Kopel & Little, supra
note 1, at 526.
285. Scott v. Sanford, 60 U.S.
(19 How.) 393, 417 (1856). Of course, Chief Justice Taney did not explicitly say "and
the right to keep and bear arms wherever they went, which is guaranteed by the Second
Amendment," any more than he explicitly said "the right to hold public meetings
upon political affairs, which is guaranteed by the First Amendment."
286. Id. at 450.
287. See, e.g.,
Stephen Douglas, The Dividing Line Between Federal and Local Authority: Popular
Sovereignty in the Territories, Harper's, Sept. 1859, at 519, 530.
One other slavery case involving a Supreme Court Justice
should be mentioned. In 1833, two months after Barron v. Baltimore was decided,
Supreme Court Justice Henry Baldwin, while circuit-riding, listed the Second Amendment
among the individual rights protected by the U.S. Constitution, and implied that the
Second Amendment was binding on the states. See Johnson v. Tompkins, 13 F. Cas.
840 (C.C.E.D. Pa. 1833) (No. 7416). The case of Johnson v. Tompkins arose out of
a slave-owner's lawsuit against a Pennsylvania constable who had arrested the slave-owner
for kidnapping and breach of the peace while the slave-owner was attempting to recapture
an alleged runaway slave. After the slave-owner, Johnson, was acquitted of the criminal
charges, he sued Tompkins and the others who had arrested him and had interfered with his
attempt to recapture his slave property. (Justice Baldwin instructed the jury that
although slavery's existence "is abhorrent to all our ideas of natural right and
justice," the jury must respect the legal status of slavery. Id. at 843.)
As part of the jury charge, Justice Baldwin listed some of
the constitutional rights possessed by the plaintiff, Johnson. Justice Baldwin listed the
Pennsylvania Constitution's right to acquire, possess, and protect property; the
Pennsylvania Constitution's bar on deprivation of property except "by the judgement
of his peers, or the law of the land"; and the Pennsylvania Constitution's
"right of citizens to bear arms in defence of themselves and the state." Id.
at 850. Justice Baldwin then began listing Johnson's rights under the U.S.
Constitution--the Article IV guarantee that "the citizens of each state shall be
entitled to the privileges and immunities of citizens in the several states"; the
prohibition on state impairment of the obligations of contract--and then stated that
"[t]he second amendment provides, 'that the right of the people to keep and bear arms
shall not be infringed.'" Id. The rights litany concluded with the ban on
deprivation of property without due process. See id. Additionally, Justice
Baldwin explained the U.S. Constitution's fugitive slave clause. See id. at
850-51.
Justice Baldwin's list of rights made it clear that each
of the rights, including the Second Amendment right to arms, was a personal right, since
the right belonged to the plaintiff. Since Johnson's lawsuit was against an employee of a
subdivision of the Pennsylvania state government, Justice Baldwin's listing of the Second
Amendment implied that Justice Baldwin considered the Second Amendment to be a restriction
on state actions against individuals.
In 1837, Justice Baldwin wrote A General View of the
Origin and Nature of the Constitution of the United States. See Henry Baldwin, A
General View of the Origin and Nature of the Constitution of the United States (N.Y., Da
Capo Press 1970) (1837). The book focused on the political status of the states and the
people, examining the transitions from colony to independent states to confederated states
to parties to the Constitutional compact. The book did not address the Second Amendment or
the militia.
288. Tom G. Palmer, Are
Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal
Objects, 13 Harv. J.L. & Pub. Pol'y 817, 821 (1990).
289. See, e.g.,
Lysander Spooner, An Essay on the Trial by Jury (1852); Lysander Spooner, The Law of
Intellectual Property: or An Essay on the Right of Authors and Inventors to a Perpetual
Property in Their Ideas (1855).
290. Jules Lobel, Losers,
Fools & Prophets: Justice as Struggle, 80 Cornell L. Rev. 1331, 1359 (1995).
291. See Tom G.
Palmer, Book Review, The Lysander Spooner Reader (visited Jan. 16, 1998)
< http://www.laissezfaire.org/pl5578.html
> .
292. C. Shively, Introduction
to 4 Lysander Spooner, Collected Works 11 (1971). But see Robert M. Cover,
Justice Accused: Antislavery and the Judicial Process 156-58 (1975) (arguing that Spooner
did not really intend to prove that slavery was unconstitutional, and that he sought
instead to convince abolitionists to seek out judgeships, so that they could free slaves).
293. Spooner distributed many
of his works through an alternative mail system, since many proslavery postmasters refused
to carry antislavery literature. Spooner's American Mail Company was cheaper than the
United States Post Office, which led the Post Office to lower its rates, and Congress to
pass "Spooner Acts," forbidding competition with the government postal monopoly.
See Dmitry N. Feofanov, Luna Law: The Libertarian Vision in Heinlein's The
Moon is a Harsh Mistress, 63 Tenn. L. Rev. 71, 133 (1995). Spooner is one of the fathers
of cheap postage in America. See Ernest A. Kehr et al., Look Before You Lick,
Reader's Digest, June 1947, at 126.
294. "The compact which
exists between the North and the South is a covenant with death and an agreement with
hell." William Lloyd Garrison, Resolution Adopted by the Antislavery Society,
Jan. 27, 1843, available online at William Lloyd Garrison. 1804-1879.
(visited Sept. 22, 1998) <
http://www.sol.com.sg/classroom/references/bartlett/346.htm > ; cf. Isaiah 28:15 ("We
have made a covenant with death, and with hell are we at agreement.").
295. David A. J. Richards, Abolitionist
Political and Constitutional Theory and the Reconstruction Amendments, 25 Loy. L.A.
L. Rev. 1187, 1193 (1992).
296. See Halbrook,
That Every Man Be Armed, supra note 1, at 231 nn. 82-83. For a modern analysis of
the essay, see generally Randy E. Barnett, Was Slavery Unconstitutional Before the
Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, 28 Pac. L.J. 977
(1997).
297. Lysander Spooner, The
Unconstitutionality of Slavery 66 (Burt Franklin 1965) (1860). For reprinted selections,
see Lysander Spooner, The Unconstitutionality of Slavery, 28 Pac. L.J. 1015, 1022
(1997).
298. See, e.g., Roscoe
Pound, The Development of Constitutional Guarantees of Liberty 91 (1957) ("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 would defeat the whole Bill of Rights."). Although Pound is
sometimes cited by opponents of the Standard Model, Pound's point is not really that the
Standard Model is wrong as a matter of history, but simply that the Second Amendment is no
longer a good idea as a matter of public policy. Pound's view that the Second Amendment
could be ignored if modern persons thought it was no longer a good idea is consistent with
his general view that legislation which once would have been clearly unconstitutional
could be considered constitutional in modern times, based on changed social needs. See
generally Roscoe Pound, Mechanical Jurisprudence, 8 Colum. L. Rev. 605
(1908).
299. Spooner, supra
note 297, at 98.
300. See U.S. Const.
art. IV, § 2, cl. 3 ("No Person held to Service or Labour in one State, under
the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation
therein, be discharged from such Service or Labour, but shall be delivered up on Claim of
the Party to whom such Service or Labour may be due."). Spooner attacked this clause
by claiming that since the clause did not specifically mention slaves, the clause should,
consistent with natural justice, be read as applying to indentured servants.
301. Lysander Spooner, A Defence for Fugitive Slaves 27 (1850). The Fugitive Slave Act promoted widespread violence
in the recapture of fugitive slaves, in Northern white vigilante resistance to the
slave-hunters and to federal authorities, and in the use of the U.S. military against the
vigilantes. "In these frightful circumstances, blacks warned their fellows to keep
firearms close at hand." Nell Irvin Painter, Sojourner Truth: A Life, A Symbol 133
(1996).
302. Spooner, supra
note 297, at 104.
303. Lysander Spooner, An Essay
on the Trial by Jury 17 (1852).
304. Lysander Spooner, Address
of the Free Constitutionalists to the People of the United States 25 (2d ed. 1860).
305. See Joel Tiffany,
The New York Practice: A Treatise upon Practice and Pleadings in Actions and Special
Proceedings (1864-1865); Joel Tiffany, The Law of Trusts and Trustees, as Administered in
England in America (1862).
306. Raoul Berger, Government
by Judiciary: The Transformation of the Fourteenth Amendment 22 (1977); Raoul Berger, Bruce
Ackerman on Interpretation: A Critique, 1992 BYU L. Rev. 1035, 1043 n.43 (1992)
(reviewing Bruce Ackerman, We the People: Foundations (1991)).
307. Trisha Olson, The
Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment,
48 Ark. L. Rev. 347, 373 n.109 (1995) (citing various scholars); see also William
M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848, at 269
(1977); Michael Kent Curtis, The Bill of Rights as a Limitation on State Authority: A
Reply to Professor Berger, 16 Wake Forest L. Rev. 45, 55 (1980); John Choon Yoo, Our
Declaratory Ninth Amendment, 42 Emory L.J. 967, 1000 (1993) ("Influential
abolitionist writers such as Lysander Spooner and Joel
Tiffany . . . .").
308. David S. Bogen, The
Transformation of the Fourteenth Amendment: Reflections from the Admission of Maryland's
First Black Lawyers, 44 Md. L. Rev. 939, 964 (1985).
309. Joel Tiffany, A Treatise
on the Unconstitutionality of American Slavery 117-18 (1849).
310. Invented in 1848, the
Sharps could fire five rounds a minute; it rapidly displaced muzzle-loading guns and was
especially popular in the West. John Brown's raiders carried the Sharps carbine (a type of
short rifle). See Harold F. Williamson, Winchester: The Gun that Won the West 5
(1952).
311. See Jay Monaghan,
Civil War on the Western Border 1854-1865 (1955). Although the abolition movement had a
strong strain of non-resistance and pacifism, the "Beecher Bibles" were widely
approved. For example, Wendell Phillips said, "I believe the age of bullets is over.
I believe the age of ideas is come . . . . Yet, let me say, in
passing, that I think you can make a better use of iron than forging it into chains. If
you must have metal, put it into Sharpe's [sic] rifles." Lawrence J. Friedman,
Gregarious Saints: Self and Community in American Abolitionism, 1830-1870, at 210 (1982)
(omission in original).
312. Charles Sumner, The Kansas
Question. Senator Sumner's Speech, Reviewing the Action of the Federal Administration upon
the Subject of Slavery in Kansas 22-23 (Cincinnati, G. S. Blanchard, 1856) (reprinting
speech delivered on the floor of the Senate, May 19-20, 1856), also available online
at <
http://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=ABT6369 >.
313. The speech (including
Butler's lengthy quotation of Sumner) was reprinted for general circulation. See
Andrew Pickins Butler, Speech of Hon. A. P. Butler, of South Carolina, on the Bill to
Enable the People of Kansas Territory to form a Constitution and State Government,
Preparatory to their Admission into the Union, etc. 24 (Washington, D.C., Union Office
1856), also available online < http://moa.umdl.umich.edu/cgi-bin/moa/sgml/
moa-idx?notisid=AJA3511 >.
South Carolina Representative Preston Brooks, Butler's
nephew, was so infuriated by Sumner's attacks on Brooks (such as the claim that while
Brooks "believes himself a chivalrous knight, with sentiments of honor and
courage," he "has chosen a mistress" who is "the harlot slavery")
that he beat Sumner on the head with a heavy cane until the cane broke, incapacitating
Sumner for four years.
314. G.A. Grow, Admission of
Kansas, June 30, 1856, reprinted in Political Speeches, Partly in the House and
Senate, Dealing Mainly with Kansas and Slavery 7 (Washington 1855), also available
online <
http://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=ABT6364 >.
315. Reprinted in
Everett Chamberlin, The Struggle of '72. the Issues and Candidates of the Present
Political Campaign 23 (San Francisco, Union Publ. 1872), also available online
< http://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=AEW6886 >.
316. See Gunja
SenGupta, For God and Mammon: Evangelicals and Entrepreneurs, Masters and Slaves in
Territorial Kansas, 1854-1860, at 105-11 (1996).
317. See, e.g., Ex
parte Milligan, 71 U.S. (4 Wall.) 2 (1866). See generally Mark E. Neely,
Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991) (dealing exclusively
with habeas corpus issues and defending Lincoln's actions).
318. See 3 War of the
Rebellion, ser. 1, 467 (Frémont's Declaration of Martial Law, Aug. 30, 1861), quoted
in Halbrook, That Every Man Be Armed, supra note 1, at 233 n.96. Frémont,
of course, had been the 1856 Republican Presidential candidate and had run on a platform
denouncing the proslavery government of Kansas for the same thing he was now doing.
319. 13 id. at 506, quoted
in Halbrook, That Every Man Be Armed, supra note 1, at 233. In defense of
Lincoln's actions against people living in Confederate states, William Whiting listed
various individual rights protected by the Constitution and then showed that they could
not be applicable in time of war; otherwise, the army would not be able to kill enemy
soldiers without due process. Similarly, "[i]f all men have the right to 'keep and
bear arms' what right has the army of the Union to take them away from rebels?" He
concluded that the Bill of Rights "[was] intended as [a] declaration[] of the rights
of peaceful and loyal citizens," and therefore inapplicable to the Southern rebels.
William Whiting, The War Powers of the President and the Legislative Powers of Congress in
Relation to Rebellion, Treason, and Slavery 49-51 (Boston, J.L Shorey 1862) available
at <
http://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=AEW5618 >.
Whiting served as a leading attorney for the War Department; under a modified title, this
pamphlet was reprinted 43 times over the next eight years. See Richard J.
Purcell, William Whiting, in Dict. Am. Bio., supra note 90.
320. T.W. McMahon, Cause and
Contrast: The American Crisis, excerpted in 32 Debow's Review, Agricultural,
Commercial, Industrial Progress and Resources 317 (1862), available online at
<
http://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=ACG1336-1315DEBO-31 >.
321. E. Pollard, The Lost Cause
574 (1867), quoted in Halbrook, That Every Man Be Armed, supra note 1,
at 233 n.96.
322. C. Chauncey Burr, Notes on
the Constitution of the United States (N.Y., J. F. Feeks 1864). Burr also founded a
monthly journal, The Old Guard, and sometimes wrote for a New York newspaper, The
Day Book or Caucasian. Few Northerners surpassed Burr's strong opposition to
Lincoln's policies. See Neely, supra note 317, at 57.
323. U.S. Const. art. I,
§ 8, cl. 15.
324. Burr, supra note
322, at 30-31.
325. See U.S. Const.
art. I, § 8, cl. 16.
326. Burr, supra note
322, at 34.
327. Id. at 80.
328. Id. Here, Burr
accused the Lincoln government of the same act perpetrated more than a century later by
the Chicago Housing Authority, with the encouragement of the Clinton administration. See
Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that police
sweeps of public housing in order to confiscate firearms was unconstitutional).
329. See Amar, The
Bill of Rights as a Constitution, supra note 1, at 1171-73.
330. Burr, supra note
322, at 81. Rep. Samuel Sullivan Cox made the same argument on Feb. 26, 1863, in
opposition to the Lincoln administration's Conscription Bill. Cox relied mainly upon the
militia clauses and Justice Story, but also cited the Second Amendment. See
Samuel Sullivan Cox, Eight Years in Congress, from 1857 to 1865, at 313 (New York, D.
Appleton & Co. 1865), also available online <
http://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=ACP4141 >.
331. Burr, supra note
322, at 80.
332. For the discussion of the
Fourteenth Amendment and the statutes which led up to it, the author is deeply indebted to
Stephen Halbrook.
333. H.R. Exec. Doc. No. 70, at
233, 236 (1866).
334. Report of the Joint
Committee on Reconstruction, H.R. Rep. No. 39-30, pt. 2, at 229 (1866).
335. See Halbrook, Personal
Security, supra note 1, at 353-54, 363, 384-88, 396-97, 401-02, 405-08,
414-15, 418, 424.
Related to the complaints about disarmament were
complaints about Southern governments' tolerant attitude about white violence against
blacks. Virginia attorney George Tucker (yes, one of the descendants of Henry St. George
Tucker) testified about the need for Congressional action to protect blacks against such
abuses of the unreconstructed governments: "They have not any idea of prosecuting
white men for offenses against colored people; they do not appreciate the idea."
McCleskey v. Kemp, 481 U.S. 279, 347 n.2 (1987) (quoting H.R.J. Comm. Rep. No. 39-30, pt.
2, at 25 (1866)).
336. Cong. Globe, 39th Cong.,
1st Sess. 371 (1866).
337. Id. at 585.
338. Act of July 16, 1866, 14
Stat. 173, 176-77 (1866).
339. 14 Stat. 173, 176 (1866).
340. Cong. Globe, 39th Cong.,
1st Sess. 1073 (1866).
341. Id. at 1168.
342. Id. at 1266.
343. The Reconstruction
Amendments' Debates 193 (Alfred Avins ed., 1967).
344. Cong. Globe, 39th Cong.,
1st Sess. 1838 (1866).
345. H.R. Rep. No. 41-37, at 3
(1871).
346. Id. at 7.
347. Cong. Globe, 42d Cong.,
1st Sess. 337 (1871).
348. Cong. Globe, 39th Cong.,
1st Sess. 1182 (1866).
349. Amar, The Bill of
Rights as a Constitution, supra note 1, at 1167 (quoting Cong. Globe, 39th
Cong., 1st Sess. 2766 (1866)). Senator Howard had "a wide reading knowledge not only
of law and history, but also of literature." James O. Knauss, Jacob Merritt
Howard, in Dict. Am. Bio., supra note 90.
350. Eric Foner, Reconstruction
258-59 (1988).
351. Cong. Globe, 42d Cong.,
1st Sess. app. at 84 (1871).
352. Id.
353. Id. at 475.
354. Cong. Globe, 42d Cong., 2d Sess. app. at 26 (1872).
355. Cong. Rec., 43d Cong., 1st Sess. app. at 241-42 (1874).
356. Id. at 302; see
also Letters from the Federal Farmer XVIII, in 2 The Complete
Anti-federalist 341 (1981) ("A militia, when properly formed, are in fact the people
themselves . . . and include . . . all men capable of
bearing arms . . . ."); George Mason, Virginia Ratifying
Convention of June 16, 1788, reprinted in Origin, supra note 37, at 430
("Who are the Militia? They consist now of the whole
people . . . .").
357. The only known nineteenth
century invocation of the Second Amendment as a meaningful state's right occurred during a
floor speech by Delaware Democrat Willard Saulsbury, as he indicated that violation of the
Second Amendment would mean the disarmament of the entire population. Objecting to the
proposed S.R. 32, to disband most Southern states' militias, Saulsbury said:
The proposition here . . . is an
application to Congress to do that which Congress has no right to do under the second
amendment of the Constitution. . . .
We hear a great deal about the oppressions of the negroes
down South, and a complaint here comes from somebody connected with the Freedmen's
Bureau. . . . Yet, sir, no petitions are here to protect the white people
against the outrages committed by the negro population; but if a few letters are written
to members here that oppression has been practiced against negroes, then the whole white
population of a State [is] to be disarmed.
Cong. Globe, 39th Cong., 1st Sess. 914-15 (1866).
358. Akhil Reed Amar suggests
that the Fourteenth Amendment accomplished a re-orientation of the Second Amendment.
Whereas the Second Amendment had originally dealt mainly with the right of people to own
guns to resist an oppressive federal government through participation in the militia, the
Second Amendment extolled by the framers of the Fourteenth Amendment dealt with personal
security, and the means to resist criminal attack effectively. See generally Amar,
The Bill of Rights and Fourteenth Amendment, supra note 1. Amar's point
is useful when taken as an observation about two eras' different views of the intended
primary purpose of the Second Amendment. We should keep in mind, however, that the
Fourteenth Amendment merely emphasized an existing thread of the Second Amendment; it did
not weave in anything new. The Framers of the Constitution and the Second Amendment saw
community defense against a criminal government as simply one end of a continuum that
began with personal defense against a lone criminal; the theme was self-defense, and the
question of how many criminals were involved (one, or a standing army) was merely a
detail. See Kates, Self-Protection, supra note 1, at 92-93.
Thus, the beginning of St. George Tucker's exposition of the Second Amendment reminded the
reader that "[t]he right of self defence is the first law of nature." See 1
Blackstone, supra note 14, app. at 300; see supra text accompanying note
61.
359. See Kermit L.
Hall, Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan
Trials, 1871-1872, 33 Emory L.J. 921 (1984).
360. 92 U.S. 542 (1876).
361. See 16 Stat. 140
§ 6 (1870); see also 18 U.S.C. §§ 241-242 (1994).
That if two or more persons shall band or conspire
together, or go in disguise upon the public highway, or upon the premises of
another . . . or intimidate any citizen with intent to prevent or hinder
his free exercise and enjoyment of any right or privilege granted or secured to him by the
Constitution or laws of the United States . . . .
Id.
362. See George C.
Rable, But There Was No Peace: The Role of Violence in the Politics of Reconstruction
125-29 (1984).
363. See United States
v. Avery, 80 U.S. (13 Wall.) 251 (1871); United States v. Crosby, 25 F. Cas. 701, 701-05
(D.S.C. 1871) (No. 14,893). The cases are discussed in Hall, supra note 359, at
921.
364. Cruikshank, 92
U.S. at 551 (emphasis added). A subtext of the opinion was that the Reconstruction
government of Louisiana had encouraged blacks to assemble armed, knowing that disturbances
would result; hence, it was the state government's responsibility (not the Supreme
Court's) to protect blacks from disarmament and interference with their right to assemble.
365. Id. at 553
(quoting New York v. Miln, 36 U.S. (11 Pet.) 125, 139 (1837)); cf. Bliss v.
Commonwealth, 12 Ky. (2 Litt.) 90, 92 (1822) ("The right [to arms in the Kentucky
Constitution] existed at the adoption of the constitution; it had then no limits short of
the moral power of the citizens to exercise it, and it in fact consisted in nothing else
but in the liberty of the citizens to bear arms.").
366. Robert Palmer writes that
"United States v. Cruikshank accomplished the nullification of the
fourteenth amendment that scholars traditionally attribute to Slaughter-House."
Robert C. Palmer, The Parameters of Constitutional Reconstruction: Slaughter-House,
Cruikshank, and the Fourteenth Amendment, 1984 U. Ill. L. Rev. 739, 762. Palmer
argues that Justice Waite's opinion in Cruikshank misread Slaughter-House,
and wrongly assumed that state and federal privileges and immunities were absolutely
distinct. See id.
Cruikshank was overruled by implication by DeJonge
v. Oregon, 299 U.S. 353 (1937), which held, directly contrary to Cruikshank,
that the right to assemble peaceably was guaranteed by the Fourteenth Amendment. Because Cruikshank
had applied identical reasoning to find that the First Amendment (assembly) and Second
Amendment (arms) were not protected by the Fourteenth Amendment, Cruikshank may
not be good law today with regard to the Fourteenth Amendment's protection of the right to
bear arms.
One other Reconstruction Supreme Court case touched on the
right to arms. Cummings v. Missouri was an 1866 case growing out of the
1865 Missouri Constitution, which imposed numerous civil disabilities--prohibitions on
engaging in various professions, holding certain types of property, and holding government
office--on persons who had supported the Confederate cause. Cummings v. Missouri, 71 U.S.
277 (1866). The State of Missouri defended the disabilities on the grounds that
deprivations of civil rights were not punishment. The Supreme Court disagreed. Justice
Stephen Field's majority opinion observed that:
In France, deprivation or suspension of civil rights, or
of some of them, and among these is the right of voting, of eligibility to office, of
taking part in family councils, of being guardian or trustee, of bearing arms, and of
teaching or being employed in a school or seminary of learning, are punishments prescribed
by her code.
Id. at 321. The Court then explained that a
deprivation of civil rights in the United States must also be considered a form of
punishment:
The theory upon which our institutions rest is, that all
men have certain inalienable rights--that among these are life, liberty, and the pursuit
of happiness; and that in the pursuit of happiness all avocations, all honors, all
positions, are alike open to every one, and that in protection of these rights all are
equal before the law. And deprivation or suspension of these rights for past conduct is
punishment, and can in no otherwise be defined.
Id. at 321-22.
The Court struck down the relevant provisions of the
Missouri Constitution as a bill of attainder, an ex post facto law, and a violation of due
process. (The Missouri deprivations did not prohibit the ownership or carrying of arms in
any way; instead the 1865 Missouri Constitution affirmed the right of the people of
Missouri "to bear arms in defence of themselves and of the lawful authority of the
State cannot be questioned." Mo. Const. art. I, § 8 (1865). Thus, there was no place
for the Supreme Court to consider the Second Amendment as an objection to the Missouri
civil rights deprivations.) The Court emphasized that the ex-confederates could be
punished for participation in the rebellion according to laws which existed at the time of
the rebellion, but that additional punishments could be not added after the fact. Id.
at 327-29.
The Cummings principles remain valid law. For
example, in 1965, the Supreme Court relied on Cummings to overturn a law which
barred ex-Communists from becoming officers of labor unions. United States v. Brown, 381
U.S. 437, 447-48 (1965) (holding that a deprivation of civil rights is punishment; the
Bill of Attainder clause is to be broadly construed).
Cummings raises interesting issues about modern
gun control laws. The Supreme Court in Cummings labeled "bearing arms"
a civil right, and insisted that a citizen may be deprived of civil rights only as the
result of a conviction for a crime when the penalty for the crime was established before,
rather than after, the commission of the crime. In the modern United States, in contrast,
it is common for federal and state laws to impose additional punishments for a crime, long
after the defendant has pled guilty and served his punishment. For example, a person might
have pled guilty to federal tax evasion in 1954 and served a prison term or paid a fine.
The punishment for the tax crime, as of 1954, did not include loss of the right to keep
and bear arms. But in the Gun Control Act of 1968, the Congress banned the possession of
firearms by anyone with a felony conviction--even felony convictions incurred long before
1968. 18 U.S.C. § 922(g)(1). The ban likewise extends retroactively to persons in various
categories unrelated to crime, such as being dishonorably discharged from the military. Id.
§ 922(g)(6). Similarly, in 1994, Congress banned firearms possession by anyone
with a misdemeanor conviction for domestic violence, no matter how long before 1994 the
conviction occurred. Id. § 922(g)(9). The courts have upheld these retroactive
prohibitions on the grounds that they do not impose any retroactive punishment; no one
will be sent to prison unless they possess a firearm after the effective date of
the law. See, e.g., United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994).
Thus, the modern courts adopt the position of the Missouri Attorney General (that
deprivation of civil rights is not punishment; only prison, executions, and fines are
punishment), and reject the position of the United States Supreme Court. A person
dishonorably discharged from the standing army because of his objections to the Vietnam
War is deprived of the constitutional protections which were accorded even to persons who
had borne arms in rebellion against the federal army in the nineteenth century. It is not
always true that modern courts protect civil rights and enforce the Constitution with more
zeal than did their nineteenth century predecessors.
367. See, e.g., Jeremy
Brecher, Strike! (1997); Robert W. Bruce, 1877: Year of Violence (1989); Priscilla Long,
Where the Sun Never Shines: A History of America's Bloody Coal Industry (1989); Philip
Taft & Philip Ross, American Labor Violence: Its Causes, Character, and Outcome,
in Violence in America: Historical and Comparative Perspectives 281-395 (Hugh
Davis Graham & Ted Robert Gurr eds., 1969). Another historian writes:
One of the major themes in American urban history since
the 1850s has been the struggle of municipal authorities and their business-class allies
to gain a monopoly on the use of violence. The problem was not that the elected officials
lacked a monopoly on the use of legally authorized violence; rather, they struggled to
convince turbulent portions of the populace that all other violence was illegitimate.
Michael Feldberg, The Crowd in Philadelphia History: A
Comparative Perspective, in Riot, Rout, and Tumult: Readings in American
Social and Political Violence 142 (Roger Lane & John J. Turner, Jr., eds., 1978).
368. This title translates to
"teaching and defense union." Cramer, supra note 1, at 130.
369. See Paul Avrich,
The Haymarket Tragedy 45-46 (1984).
370. Presser v. Illinois, 116
U.S. 252, 265 (1886).
371. The Court's opinion was
consistent with established common law limits on the right to arms which prohibited large,
terrifying assemblies of armed men. See 1 Hawkins, supra note 96, at ch.
60.
372. Presser, 116 U.S.
at 265.
373. Id. at 265-66.
374. Id. at 265.
375. See, e.g.,
Levinson, supra note 1, at 652-53.
376. See Planned
Parenthood v. Casey, 505 U.S. 833, 848 (1992); Moore v. East Cleveland, 431 U.S. 494, 502
(1977) (plurality opinion); Poe v. Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J.,
dissenting).
377. See Halbrook, Personal
Security, supra note 1, at 343-44.
378. Alan R. Jones, The
Constitutional Conservatism of Thomas McIntyre Cooley 1 (1987).
379. B. Twiss, Lawyers and the
Constitution: How Laissez Faire Came to the Supreme Court 34 (1942), quoted in
Stephen A. Siegal, Historism in Late Nineteenth-Century Constitutional Thought,
1990 Wis. L. Rev. 1431, 1485 n.302.
380. See Roscoe Pound,
The Formative Era of American Law 30 n.2 (1938).
381. See Paul D.
Carrington, Law as "The Common Thoughts of Men": The Law-Teaching and
Judging of Thomas McIntyre Cooley, 49 Stan. L. Rev. 495, 496 (1997).
382. See Thomas
Cooley, A Treatise on the Law of Taxation, Including the Law of Local Assessments (1876).
383. See Thomas
Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract
(1880). The torts treatise "was long considered the authoritative American
treatment." 4 Dictionary of American Biography 393 (A. Johnson & D. Malone eds.,
1930), quoted in Siegal, supra note 379, at 1486 n.309.
384. See Carrington, supra
note 381, at 515-16.
385. See id. at 498.
386. P. Paludan, A Covenant
With Death: The Constitution, Law and Equality in the Civil War Era 252 (1975), quoted
in Siegal, supra note 379, at 1485 n.302.
387. Siegal, supra note
379, at 1487.
388. Robert G. McCloskey, The
American Supreme Court 87 (1960).
389. Carrington, supra note
381, at 496-97.
390. Book Note, 27 Alb. L.J.
300 (1883).
391. Bernard Schwartz, The Law
in America 134 (1974).
392. See supra note
152 and accompanying text.
393. See supra text
accompanying notes 246-54 (reviewing the Georgia case, Nunn v. State, holding
that the Second Amendment guarantees individual right to open carry, but not to concealed
carry).
394. 10 Ky. (3 A.K. Marsh.) 70
(1820) (holding also that free blacks have some constitutional rights, as "parties to
the political compact").
395. Thomas M. Cooley, A
Treatise on Constitutional Limitations Which Rest Upon the Legislative Power of the States
of the American Union 350 (Little, Brown 1972) (1868).
396. Id.
397. See id. Only one
pre-Cooley treatise cited Ely. See Duer, supra note 165, at 37
n.1. Cooley's selection of a case upholding justifiable self-defense by a black man may
have been a reflection of Cooley's own anti-racism. His Michigan Law School was always
open to people of all colors. See Carrington, supra note 381, at 516. On
the Michigan Supreme Court, Justice Cooley authored an opinion voiding racial segregation
in the Detroit public schools. See People v. Board of Educ., 18 Mich. 399 (1869).
398. See Cooley, supra
note 395, at 35.
399. Id. at 35-36.
400. Siegal, supra
note 379, at 1486 n.307.
401. These last two sentences
were quoted (with proper citation) as an explanation of the Second Amendment in C. Ellis
Stevens, Sources of the Constitution of the United States, Considered in Relation to
Colonial and English History 224 (New York, MacMillan 2d ed. 1894). The right to arms is a
"right involving the latent power of resistance to tyrannical government,"
Stevens explained. Id. at 223. "From prehistoric days the right to bear arms
seems to have been the badge of a Teutonic freeman, and closely associated with his
political privileges. Such armed freemen made up the military host of the tribe." Id.
Stevens traced the right to arms and the corresponding militia duty from Saxon times to
the middle ages, and finally to the 1689 English Bill of Rights. See id.
402. See Thomas M.
Cooley, The General Principles of Constitutional Law in the United States of America
281-82 (Boston, Little, Brown 2d ed. 1891).
403. Id. at 282-83. At
the end of the section, Cooley cited Andrews v. State, 50 Tenn.
(3 Heisk.) 165 (1872), for the proposition that the improper carrying of small weapons not
suitable for defense against tyranny could be prohibited. Cooley, supra note 402,
at 283 n.1; see also 1 William Blackstone, Commentaries on the Laws of England
143 (Thomas M. Cooley ed., Chicago, Callaghan 1884) (containing Cooley's notes on
Blackstone's exposition of the right to arms: "In the United States this right is
preserved by express constitutional provisions. But it extends no further than to keep and
bear those arms which are suited and proper for the general defense of the community
against invasion and oppression."). Lawrence Cress quotes this passage from Cooley to
support Cress's position that the Second Amendment guarantees only a right of state
governments. See Cress, supra note 2, at 42. In light of Cooley's
statements in Constitutional Limitations (which Cress must have known about since
he cites Constitutional Limitations, even though he does not quote it), Cress's
attempt to use Cooley to support an anti-individual Second Amendment is totally
implausible.
Also implausible is the claim of Robert J. Spitzer, author
of The Politics of Gun Control, that the "classic analyses of the nineteenth
century, like those of Joseph Story and Thomas Cooley" support Spitzer's theory that
no individual has a right to own a gun. Spitzer, supra note 2, at 42-43. In the
endnote for the assertion, Spitzer cites Story and Cooley, but does not quote any of their
words. Instead, Spitzer writes that "Cooley did not include discussion of the
important Presser case until the subsequent (fourth) edition of his book,
published in 1931, when he buttressed the standard interpretation found in the writings of
other constitutional scholars." Id. at 56 n.60 (parenthetical in original).
Actually, Judge Cooley had been dead for 33 years when the fourth edition was published. See
Andrew C. Mclauchlin, Thomas McIntyre Cooley, in Dict. Am. Bio., supra
note 90.
404. See Thomas M.
Cooley, The General Principles of Constitutional Law in the United States of America
297-99 (Boston, Little, Brown 3d ed. 1898).
405. Cooley, supra note
395, at 270; see generally Williams, Civic Republicanism, supra note
8.
406. See Henigan, Arms,
Anarchy, supra note 2, at 122. Henigan credits himself with scoring a point
on Levinson, since the fourth edition undercuts Levinson's point that the Second Amendment
may invalidate state antigun laws. See id. But Levinson was not relying on
Cooley's third edition in regard to state gun laws; Levinson elsewhere cited and
acknowledged the authority of Cruikshank and Presser. Levinson's point
about state gun laws turned on his argument that twentieth-century analysis about the
Fourteenth Amendment has rendered Cruikshank and Presser obsolete. See
Levinson, supra note 1, at 652-53.
407. Thomas M. Cooley, The
Abnegation of Self-Government, Princeton Rev., July-Dec. 1883, at 209, 213-14; see
also Levinson, supra note 1, at 649 n.64 (quoting Cooley's use of this text
in the third edition of General Principles of Constitutional Law). In the next paragraph,
Cooley wrote that a person who refuses to heed an unconstitutional law "need for the
purpose no judicial decision, no official assistance; he simply obeys the constitution,
which is the law made by the sovereign, and is therefore paramount, instead of the law
attempted to be made by the subordinate, which must necessarily be inferior, and if
conflicting, inoperative." Cooley, supra note 404, at 214. The concluding
paragraph urged Americans to exceed the minimal duties of good citizenship, which were
"that they should cast their ballots for suitable persons in election, or that they
should perform jury duty, or bear arms when summoned to the defence of the State." Id.
at 226.
408. See Henigan, Arms,
Anarchy, supra note 2, at 119-20.
409. See Levinson, supra
note 1, at 649 n.64.
410. Joel Tiffany, A Treatise
on Government and Constitutional Law--Being an Inquiry into the Source and Limitations of
Governmental Authority according to the American Theory (1867).
411. The good of the republic
is the supreme law.
412. Tiffany, supra
note 410, at 394-95.
413. See supra note
309 and accompanying text.
414. Well, almost no one. Garry
Wills contends that the Third Amendment has no legally meaningful content. See Wills,
supra note 5, at 72. But see Powe, supra note 1, at 1361
(responding to Wills on the Third Amendment).
415. Tiffany's broad theory of
martial law (allowing suspension of the Second or Third Amendment during war), which was
no doubt influenced by Lincoln's aggressive and arguably unconstitutional use of martial
law powers during the Civil War, might reasonably be questioned. The Third Amendment
specifically provides for circumstances of war, and the habeas corpus clause
states that it may be suspended during martial law. The provision for suspension of habeas
corpus during martial law implies that other constitutional rights, for which there
are no suspension provisions, may
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