"The gun gives boldness, enterprise, and independence to the mind. Let your gun, therefore, be the constant companion of your walks." - Thomas Jefferson
WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT
The Second Amendment secures a right
of individuals generally, not a right of States or a right restricted
to persons serving in militias.
August 24, 2004
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
Table of Contents
- The Unsettled Legal Landscape
- Textual and Structural Analysis
- "The Right of the People"
- "To Keep and Bear Arms"
- "A Well Regulated Militia, being Necessary to the
Security of a Free State"
- Structural Considerations: The Bill of Rights and
the Militia Powers
- The Original Understanding of the Right to Keep and
- The Right Inherited from England
- The Right in America before the Framing
- The Development of the Second Amendment
- The Early Interpretations
- The First Commentators
- The First Cases
- Beyond Reconstruction
The Second Amendment of the Constitution
provides: "A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall not
be infringed." You have asked for the opinion of this Office on one aspect
of the right secured by this Amendment. Specifically, you have asked us
to address the question whether the right secured by the Second Amendment
belongs only to the States, only to persons serving in state-organized
militia units like the National Guard, or to individuals generally. This
memorandum memorializes and expands upon advice that this Office provided
to you on this question in 2001.
As relevant to the question addressed herein,
courts and commentators have relied on three different interpretations
of the Second Amendment. Under the "individual right" view, the Second
Amendment secures to individuals a personal right to keep and to bear
arms, whether or not they are members of any militia or engaged in military
service or training. According to this view, individuals may bring claims
or raise challenges based on a violation of their rights under the Second
Amendment just as they do to vindicate individual rights secured by other
provisions of the Bill of Rights. (1) Under
the "collective right" view, the Second Amendment is a federalism provision
that provides to States a prerogative to establish and maintain armed
and organized militia units akin to the National Guard, and only States
may assert this prerogative. (2) Finally,
there is a range of intermediate views according to which the Amendment
secures a right only to select persons to keep and bear arms in connection
with their service in an organized state militia such as the National
Guard. Under one typical formulation, individuals may keep arms only if
they are "members of a functioning, organized state militia" and the State
has not provided the necessary arms, and they may bear arms only "while
and as a part of actively participating in" that militia's activities.
(3) In essence, such a view would allow a private cause of action
(or defense) to some persons to vindicate a State's power to establish
and maintain an armed and organized militia such as the National Guard.
(4) We therefore label this group of intermediate positions
the "quasi-collective right" view.
The Supreme Court has not decided among these
three potential interpretations, and the federal circuits are split. The
Executive Branch has taken different views over the years. Most recently,
in a 2001 memorandum to U.S. Attorneys, you endorsed the view that the
Second Amendment protects a "'right of individuals, including those not
then actually a member of any militia or engaged in active military service
or training, to privately possess and bear their own firearms'" but allows
for "reasonable restrictions" designed "to prevent unfit persons from
possessing firearms or to restrict possession of firearms particularly
suited to criminal misuse. (5)
As developed in the analysis below, we conclude
that the Second Amendment secures a personal right of individuals, not
a collective right that may only be invoked by a State or a quasi-collective
right restricted to those persons who serve in organized militia units.
Our conclusion is based on the Amendment's text, as commonly understood
at the time of its adoption and interpreted in light of other provisions
of the Constitution and the Amendment's historical antecedents. Our analysis
is limited to determining whether the Amendment secures an individual,
collective, or quasi-collective right. We do not consider the substance
of that right, including its contours or the nature or type of governmental
interests that would justify restrictions on its exercise, and nothing
in this memorandum is intended to address or call into question the constitutionality,
under the Second Amendment, of any particular limitations on owning, carrying,
or using firearms.
This memorandum proceeds in four parts. Part
I addresses the current unsettled state of the law in this area. Part
II demonstrates that the text and structure of the Constitution support
the individual-right view of the Second Amendment. Part III shows why
this view finds further support in the history that informed the understanding
of the Second Amendment as it was written and ratified. Finally, Part
IV examines the views of commentators and courts closest to the Second
Amendment's adoption, which reflect an individual-right view, and then
concludes by describing how the modern alternative views of the Second
Amendment took hold in the early twentieth century.
I. The Unsettled Legal
Recent interpretations of the Second Amendment
have been characterized by disagreement and uncertainty. The Supreme Court
has not decided the question that we address here, and at least three
views prevail in the federal courts of appeals. The Executive Branch has
taken varying positions, and the Amendment has been the subject of extensive
academic debate for the past two decades.
The Supreme Court's most important decision
on the meaning of the Second Amendment, United States v.
Miller, (6) grew out of the enactment
of the National Firearms Act of 1934. (7)
That Act was the first federal regulation of private firearms.
(8) It taxed (and thereby registered) transfers of sawed-off
shotguns or rifles capable of being concealed, machine guns, and silencers.
It also taxed dealers in such weapons and required anyone who possessed
such a weapon acquired before 1934 to register it with federal tax authorities.
A Second Amendment challenge to this Act
produced Miller in 1939, the closest that the Supreme Court has
come to interpreting the substance of the Amendment. Miller and a co-defendant
were indicted for transporting an unregistered sawed-off shotgun in interstate
commerce from Oklahoma to Arkansas, and the district court sustained their
Second Amendment challenge to the indictment. On appeal by the Government,
neither defendant appeared or filed a brief. (9)
The Court, in reversing and remanding, held that the sawed-off shotgun
was not among the "Arms" protected by the Second Amendment absent "evidence
tending to show that" its use or possession "at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia."
Citing an 1840 decision of the Tennessee Supreme Court, Aymette
v. State, the Court concluded that it was not "within
judicial notice" that a sawed-off shotgun was a weapon that was "any part
of the ordinary military equipment" or whose use "could contribute to
the common defence." Absent evidence, therefore, the Court could not "say
that the Second Amendment guarantees the right to keep and bear such an
After this one-paragraph discussion, the
Court quoted the powers that Article I, Section 8, Clauses 15 and 16 of
the Constitution grant to Congress to provide for calling forth, organizing,
arming, and disciplining "the Militia," and stated that the Second Amendment's
"declaration and guarantee" were made "[w]ith obvious purpose to assure
the continuation and render possible the effectiveness of" the militia,
and that the Amendment "must be interpreted and applied with that end
in view." (11) The Court then added a
historical discussion demonstrating that "the term Militia" as used in
various provisions of the Constitution, including the Second Amendment,
referred to a body that "comprised all males physically capable of acting
in concert for the common defense," who "were expected to appear" for
occasional training "bearing arms supplied by themselves and of the kind
in common use at the time," which in the 1700's usually meant a "good"
musket of proper length. (12)
Miller did not resolve the question
addressed in this memorandum. Although the meaning of the decision is
much debated, three points appear evident. First, the holding was limited
to the meaning of "Arms" in the Second Amendment and whether a sawed-off
shotgun is among the arms protected. In determining that meaning, the
Court also interpreted the term "Militia" as used in the Constitution.
Second, the Court did not categorically reject Miller's Second Amendment
challenge. The Court's decision to address the substance of this challenge
to his indictment, as opposed to concluding that only States could bring
such a challenge, appears to be inconsistent with a collective-right view.
Finally, the Court did not clearly decide
between the individual-right and quasi-collective-right views. Its holding
regarding the meaning of "Arms" is consistent with either view: The Court's
limitation of "Arms" to those weapons reasonably related to the preservation
or efficiency of a well-regulated militia (such as those that are "part
of the ordinary military equipment" or that "could contribute to the common
defense") could be consistent with a right to "keep and bear" such arms
that is restricted to service in an organized military unit such as the
National Guard; but that holding is also consistent with an individual
right to keep and bear whatever "Arms" the Amendment protects. Similarly,
the Court's reference to the need to interpret the Second Amendment's
"declaration and guarantee" with the "end in view" of furthering "the
continuation and render[ing] possible the effectiveness of" the militia
could be consistent with a quasi-collective-right view; but it is also
consistent with the understanding of the relationship between an individual
right to keep and bear arms and the "Militia" that prevailed at the time
of the Founding, an understanding confirmed by early authorities' discussions
of the Second Amendment's preface. (13)
Even so, absent from the Court's opinion
in Miller was any discussion of whether the defendants were members
of the National Guard or any other organized military force, whether they
were transporting the shotgun in the service of such a force, or whether
they were "physically capable of" bearing arms in one and thus even eligible
for service. The nature of the weapon at issue, not of the defendants
or their activities, appeared to be the key fact, and this aspect of the
opinion tends to point toward the individual-right view rather than the
quasi-collective-right view. In addition, Miller's broad reading
of "Militia" is most consistent with the individual-right view, as we
explain below in Part II.C.2, and is in tension with the quasi-collective-right
view, under which the militia is understood to refer to select military
units, akin to the modern National Guard, organized and armed by the States.
Three years after Miller, in Cases
v. United States, the First Circuit read Miller
to turn solely on the type of weapon at issue and to suggest an individual-right
view of the Second Amendment: "Apparently, then, under the Second Amendment
[as interpreted in Miller], the federal government . . . cannot
prohibit the possession or use of any weapon which has any reasonable
relationship to the preservation or efficiency of a well regulated militia."
But the court doubted that Miller "was attempting to formulate
a general rule applicable to all cases," warned of the consequences of
such a view, and asserted that it was "unlikely that the framers of the
Amendment intended any such result." (15)
The court, instead, adopted what amounted to a quasi-collective-right
view: A person has no right under the Second Amendment unless he is "a
member of a[ ] military organization" or uses his weapon "in preparation
for a military career," thus "contributing to the efficiency of the well
regulated militia." (16) Neither in support
of its assertion about the Framers' intent nor in its paragraph fashioning
this rule did the court cite any text or other authority.
Also in 1942, the Third Circuit in United
States v. Tot applied Miller's definition
of "Arms" to affirm the conviction of a defendant who received a pistol
in interstate commerce after having been convicted of a felony involving
violence. (17) Alternatively, the court
rested its affirmance on the ground that the Government may prohibit such
a convict from possessing a firearm. (18)
Although either of these views is consistent with an individual right,
(19) Tot added, in apparent dicta, a one-paragraph
historical discussion in support of the view that the Amendment "was not
adopted with individual rights in mind, but as a protection for the States
in the maintenance of their militia organizations against possible encroachments
by the federal power." (20) The court
did not address the Amendment's text but instead chiefly relied on the
Aymette case's account of the right that emerged from the English
Revolution of 1688-1689.
Over the past few decades, the Executive
Branch has taken differing views of the right secured by the Second Amendment.
(21) In 1941, President Roosevelt signed legislation authorizing
requisitions of private property for war use that prohibited requisitioning
or new registration "of any firearms possessed by any individual for his
personal protection or sport" and, moreover, any impairing or infringing
of "the right of any individual to keep and bear arms."
(22) In 1959, this Office reviewed a bill that would have secured
the custody and disposition of missiles, rockets, and earth satellites.
We questioned its definition of "missile," which included "projectile"
and "seems to include conventional ammunition," and we commented that
if the bill purported "to prohibit private individuals from acquiring,
possessing, or receiving any standard ammunition for firearms . . . .
serious constitutional problems would arise under the Second Amendment."
(23) In commenting on similar bills in 1961 and 1962, this Office
cited and reaffirmed its 1959 memorandum. (24)
In 1965, however, the Justice Department expressly adopted the collective-right
interpretation in congressional testimony by Attorney General Katzenbach.
Soon after, in 1968, Congress passed the
first major federal gun regulation since 1938, the Omnibus Crime Control
and Safe Streets Act. (26) This statute
produced a flurry of decisions in the federal courts of appeals rejecting
the individual-right view. Following the Third Circuit's dicta
in Tot, the Fourth, Sixth, Seventh, and Ninth Circuits eventually
adopted the collective-right view. (27)
Following the First Circuit in Cases, the Eighth, Tenth, and
Eleventh Circuits adopted quasi-collective-right views.
(28) As in Tot and Cases, many of these cases,
particularly the initial ones, involved constitutional challenges by persons
convicted of felonies or violent crimes, (29)
and some involved challenges to restrictions on carrying concealed weapons.
(30) These decisions did not analyze, at least not in depth,
the Amendment's text or history. Rather, they relied on Tot or
Cases (or their progeny), claimed support from Miller,
or both. As the Ninth Circuit recently recognized in the course of adhering
to its collective-right position, these earlier decisions reached their
conclusions "with comparatively little analysis," "largely on the basis
of the rather cursory discussion in Miller, and touched only
briefly on the merits of the debate." (31)
In contrast, the burgeoning scholarly literature
on the Second Amendment in the past two decades has explored the meaning
of the Second Amendment in great detail. The collective-right and quasi-collective-right
positions have many adherents, (32) although
the preponderance of modern scholarship appears to support the individual-right
Recent decisions of the Fifth and Ninth Circuits
have begun to remedy the relatively sparse judicial analysis of the meaning
of the Second Amendment. In 2001, the Fifth Circuit in United States
v. Emerson adopted the individual-right view, based
on an extensive analysis of the Amendment's text and history.
(34) The following year, the Ninth Circuit in Silveira
v. Lockyer rejected Emerson with an extended counter-analysis
and reaffirmed its adherence to the collective-right view.
(35) Six members of the Ninth Circuit dissented from denial
of rehearing en banc and endorsed an individual-right view.
In sum, the question of who possesses the
right secured by the Second Amendment remains open and unsettled in the
courts and among scholars. Accordingly, we turn to the Amendment's text,
as commonly understood at the time of its adoption and interpreted in
light of other provisions of the Constitution and the Amendment's historical
antecedents, to discern its proper meaning.
II. Textual and Structural
The Second Amendment of the United States
Constitution, part of the Bill of Rights, reads in full as follows:
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 expressly protects a "right of the people," which is "to
keep and bear Arms" and which has some relation to the prefatory declaration
that a "well regulated Militia" is necessary for the ultimate end of "the
security of a free State." We address each of these phrases in turn and
then consider how the structure of the Constitution illuminates the Amendment's
As explained below, the text of the Second
Amendment points to a personal right of individuals: A "right of the people"
is ordinarily and most naturally a right of individuals, not of a State
and not merely of those serving the State as militiamen. The phrase "keep
arms" at the time of the Founding usually indicated the private ownership
and retention of arms by individuals as individuals, not the stockpiling
of arms by a government or its soldiers, and the phrase certainly had
that meaning when used in connection with a "right of the people." While
the phrase "bear arms" often referred to carrying of arms in military
service, it also sometimes denoted carrying arms for private purposes.
The Amendment's prefatory clause, considered under proper rules of interpretation,
could not negate the individual right recognized in the clear language
of the operative clause. In any event, the prefatory clause - particularly
its reference to the "Militia," which was understood at the Founding to
encompass all able-bodied male citizens, who were required to be enrolled
for service - is fully consistent with an individual-right reading of
the operative language. Moreover, the Second Amendment appears in the
Bill of Rights amid amendments securing numerous individual rights, a
placement that makes it likely that the right of the people to keep and
bear arms likewise belongs to individuals. Finally, a consideration of
the powers that the original Constitution grants or allows over the militia
makes it unlikely that the Second Amendment would secure a collective
or quasi-collective right.
A. "The Right of the
The Second Amendment's recognition of a "right"
that belongs to "the people" indicates a right of individuals. The word
"right," standing by itself in the Constitution, is clear. Although in
some contexts entities other than individuals are said to have "rights,"
(37) the Constitution itself does not use the word "right" in
this manner. Setting aside the Second Amendment, not once does the Constitution
confer a "right" on any governmental entity, state or federal. Nor does
it confer any "right" restricted to persons in governmental service, such
as members of an organized military unit. In addition to its various references
to a "right of the people" discussed below, the Constitution in the Sixth
Amendment secures "right[s]" to an accused person, and in the Seventh
secures a person's "right" to a jury trial in civil cases.
(38) By contrast, governments, whether state or federal, have
in the Constitution only "powers" or "authority."
(39) It would be a marked anomaly if "right" in the Second Amendment
departed from such uniform usage throughout the Constitution.
In any event, any possible doubt vanishes
when "right" is conjoined with "the people," as it is in the Second Amendment.
Such a right belongs to individuals: The "people" are not a "State," nor
are they identical with the "Militia." Indeed, the Second Amendment distinctly
uses all three of these terms, yet it secures a "right" only to the "people."
The phrase "the right of the people" appears two other times in the Bill
of Rights, and both times refers to a personal right, which belongs to
individuals. The First Amendment secures "the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances,"
and the Fourth safeguards "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures." In addition, the Ninth Amendment refers to "rights . . . retained
by the people." We see no reason to read the phrase in the Second Amendment
to mean something other than what it plainly means in these neighboring
and contemporaneous amendments.
The Supreme Court, in interpreting the Fourth
Amendment, likewise has recognized that the Constitution uses "the people,"
and especially "the right of the people," to refer to individuals:
"[T]he people" seems to have been a term
of art employed in select parts of the Constitution. The Preamble
declares that the Constitution is ordained and established by "the
People of the United States." The Second Amendment protects "the right
of the people to keep and bear Arms," and the Ninth and Tenth Amendments
provide that certain rights and powers are retained by and reserved
to "the people." See also U.S. Const., Amdt. 1 ("Congress
shall make no law . . . abridging . . . the right of the people
peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The
House of Representatives shall be composed of Members chosen every
second Year by the People of the several States") (emphasis
added). While this textual exegesis is by no means conclusive, it
suggests that "the people" protected by the Fourth Amendment, and
by the First and Second Amendments, and to whom rights and powers
are reserved in the Ninth and Tenth Amendments, refers to a class
of persons who are part of a national community or who have otherwise
developed sufficient connection with this country to be considered
part of that community. (40)
Thomas Cooley, the leading constitutional scholar after the Civil War,
took the same view in explaining "the people" in the context of the First
Amendment: "When the term 'the people' is made use of in constitutional
law or discussions, it is often the case that those only are intended
who have a share in the government through being clothed with the elective
franchise. . . . But in all the enumerations and guaranties of rights
the whole people are intended, because the rights of all are equal,
and are meant to be equally protected." (41)
The Constitution confirms this meaning of
"the people" as individuals by expressly distinguishing the "people" from
the "States," using each word to refer to a distinct thing. Indeed, the
Second Amendment itself refers separately to "the people" and the "State."
And the difference is firmly established by the Tenth Amendment, which
distinguishes between the powers reserved "to the States" and those reserved
"to the people." The "people" are the individuals who compose the States,
distinct from - and bearing their federal "rights" apart from - those
Similarly, the Constitution gives distinct
meanings to "the people" and the "Militia." Again, the Second Amendment
itself is a notable example, referring to the "well regulated Militia"
but granting the "right" to "the people." The Constitution's other references
to "rights" of "the people," noted above, cannot plausibly be construed
as referring to the "Militia." In addition, when granting governmental
power over the militia, the Constitution speaks of the militia expressly,
without any reference to or suggestion of the broader "people."
(43) And the Fifth Amendment's Grand Jury Clause, which distinguishes
between all "person[s]" and those serving in the army, navy, or "the Militia,
when in actual service," indicates that where the Constitution addresses
rights that turn on service in the militia it does so expressly.
The only truly "collective" use of the "the
people" at the time of the Founding was to refer to the people as they
existed apart from government or any service to it. The Declaration
of Independence refers to "one People" dissolving their political bonds
with another and forming their own nation, and "We the people" created
the Constitution in ratifying conventions chosen "by the People" of each
State. (44) Thus, even in this context,
the "people" are distinguished from "the government" or "the State"; nor
can the term plausibly be limited to the "Militia." And when "the people"
appears in the phrase "the right of the people" in the Constitution,
we conclude that it indicates a personal right of individuals, whether
that be a right to assemble and petition, to be secure in one's person
and property, or to keep and bear arms.
B. "To Keep and Bear Arms"
The "right of the people" that the Second Amendment secures is
a right "to keep and bear Arms." As the previous subpart showed, those
who hold the right are, according to the text, "the people" - individuals
- not the government or even the militia. The phrase "to keep and bear
Arms" is consistent with this conclusion: The phrase "keep . . . Arms"
reinforces it, (45) and the phrase "bear
Arms" is not inconsistent with it.
1. "To Keep . . . Arms."
In eighteenth-century English, an individual
could "keep arms," and keep them for private purposes, unrelated to militia
duty, just as he could keep any other private property, and the phrase
was commonly used in this sense. For example, in Rex v. Gardner
(K.B. 1738), a defendant charged with "keeping a gun" in violation of
a 1706 English statute (which prohibited commoners from keeping specified
objects or "other engines" for the destruction of game) argued that "though
there are many things for the bare keeping of which a man may be convicted;
yet they are only such as can only be used for destruction of the game,
whereas a gun is necessary for defence of a house, or for a farmer to
shoot crows." The court agreed, reasoning that "a gun differs from nets
and dogs, which can only be kept for an ill purpose."
(46) The Court of Common Pleas six years later treated Gardner
as having "settled and determined" that "a man may keep a gun for the
defence of his house and family," (47)
and in 1752 the King's Bench reiterated that "a gun may be kept for the
defence of a man's house, and for divers other lawful purposes."
(48) The same usage appeared in an earlier prosecution of a
man for "keeping of a gun" contrary to a statute that barred all but the
wealthy from privately owning small handguns. (49)
William Blackstone, whose Commentaries
on the Laws of England, first published in the decade before
the American Revolution, was the leading legal authority in America at
the Founding, wrote, without any reference to the militia, of "person[s]"
who are "qualified to keep a gun" and are "shooting at a mark," apparently
on their own property. (50) He also noted
that certain persons could not "keep arms in their houses," pursuant to
a statute that used "keep" to signify private ownership and control over
arms, wherever located. (51) Colonial
and early state statutes similarly used "keep" to "describe arms possession
by individuals in all contexts," including requiring those exempt from
militia service (such as the over-aged) to "keep" arms in their homes
for both law enforcement and "the defense of their homes from criminals
or foreign enemies." (52) At the Massachusetts
Ratifying Convention in 1788, Samuel Adams proposed an amendment prohibiting
Congress from "prevent[ing] the people of the United States, who are peaceable
citizens, from keeping their own arms," indicating ownership by individuals
of private arms. (53) And that State's
Supreme Court, in a libel case soon after the Founding, likened the "right
to keep fire arms" to the freedom of the press, both being individual
but not unlimited rights - the former not protecting "him who uses them
for annoyance or destruction." (54) The
basic dictionary definition of "keep" -"[t]o retain" and "[t]o have in
custody"- was consistent with this specific meaning.
In short, the phrase "keep arms" was commonly
understood to denote ownership of arms by private citizens for private
purposes. When that phrase is read together with its subject - "the right
of the people" - the evidence points strongly toward an individual right.
Had the Constitution meant not to protect the right of the whole "people"
to "keep" arms but instead to establish a "right" of the States or of
only the members of their militias to store them, presumably it would
have used different language. (56)
2. "To . . . Bear Arms."
To "bear" was, at the Founding as now, a
word with numerous definitions - used with great "latitude" and "in very
different senses," as Samuel Johnson noted in his dictionary.
(57) Its basic meaning was simply to "carry" or "wear" something,
particularly carrying or wearing in a way that would be known to others,
such as in bearing a message, bearing another person, or bearing something
as a mark of authority or distinction. (58)
As a result, "bear," when taking "arms" as its object, could refer to
multiple contexts in which one might carry or wear arms in this way.
(59) It is true that "bear arms" often did refer to carrying
arms in military service. (60) But the
phrase was not a term of art limited to this sense. Arms also could be
"borne" for private, non-military purposes, principally tied to self-defense.
For example, an early colonial statute in Massachusetts required every
"freeman or other inhabitant" to provide arms for himself and anyone else
in his household able to "beare armes," and one in Virginia required "all
men that are fittinge to beare armes" to "bring their pieces" to church.
There are also several examples closer to
the Founding. In 1779, a committee of eminent Virginians including Thomas
Jefferson and George Mason, charged with revising the new State's laws,
authored a bill penalizing any person who, within a year of having violated
a restriction on hunting deer, "shall bear a gun out of his inclosed ground,
unless whilst performing military duty." This bill demonstrates that to
"bear a gun" was not limited to "performing military duty." James Madison
submitted this bill to the Virginia legislature in 1785.
(62) Many early state constitutions, including some written
before the Founding (Pennsylvania's and Vermont's) and one written a month
after Secretary of State Jefferson declared the Bill of Rights ratified
(Kentucky's), protected an individual right to "bear arms" in "defense
of himself and the State" or in "defense of themselves and the State,"
indicating that a person might be said to "bear arms" in self-defense.
(63) A 1780 opinion of London's Recorder (the city's legal adviser
and the primary judge in its criminal court) on the legality of a private
self-defense association acknowledged "the rights of the people of this
realm to bear arms, and to instruct themselves in the use of them, collectively,"
albeit within limits. (64) In a newspaper
commentary published in major cities after Madison introduced the Bill
of Rights in Congress, a friend of his wrote that the proposed Second
Amendment would "confirm" the people's "right to keep and bear their
private arms." (65) Supreme Court Justice
Joseph Story, in his 1833 Commentaries on the Constitution of the
United States, paraphrased as a "right to bear arms" the right of
English "subjects . . . [to] have arms for their defence," an individual
right not tied to service in the militia. (66)
Finally, other examples of contemporaneous uses of "bear arms" to denote
actions of individuals appear in cases from the early 1800's up to the
Civil War, discussed below in Part IV.B.
The Minority Report issued by twenty-one
delegates of the Pennsylvania Convention that ratified the Federal Constitution
in late 1787 illustrates the various uses of the phrase at the time, including
both the right of private "bearing" and the duty of
"bearing" for the government in the militia. The report recommended amending
the Constitution to recognize "[t]hat the people have a right to bear
arms for the defence of themselves and their own State or the United States,
or for the purpose of killing game" and also urged exemption from militia
service for those "conscientiously scrupulous of bearing arms." Although
the Minority Report was a product of Anti-Federalists, who had
lost at that convention and who lost the battle over ratifying the Constitution,
we are unaware of any contemporaneous criticisms that this widely circulated
document misused language in giving such senses to the phrase "bear arms."
In sum, although "bear arms" often referred
to carrying or wearing arms in connection with military duty, it was not
limited to such a meaning. When, as in the Second Amendment, those words
are used in conjunction with "keep arms," which commonly did refer to
private action, and the whole phrase "to keep and bear Arms" is used in
the context of a "right of the people," (68)
we conclude that the core, operative text of the Amendment secures a personal
right, which belongs to individuals. We next consider whether the Amendment's
prefatory language requires a different conclusion.
C. "A Well Regulated Militia,
being Necessary to the Security of a Free State"
A feature of the Second Amendment that distinguishes
it from the other rights that the Bill of Rights secures is its prefatory
subordinate clause, declaring: "A well regulated Militia, being necessary
to the security of a free State, . . . ." Advocates of the collective-right
and quasi-collective-right interpretations rely on this declaration, particularly
its reference to a well-regulated militia. On their interpretation, the
"people" to which the Second Amendment refers is only the "people" in
a collective, organized capacity as the state governments, or a small
subset of the "people" actively organized by those governments into military
bodies. "People" becomes interchangeable with the "State" or its "organized
This argument misunderstands the proper role
of such prefatory declarations in interpreting the operative language
of a provision. A preface can illuminate operative language but is ultimately
subordinate to it and cannot restrict it.
Wholly apart from this interpretive principle,
this argument also rests on an incomplete understanding of the preface's
language. Although the Amendment's prefatory clause, standing alone, might
suggest a collective or possibly quasi-collective right to a modern reader,
when its words are read as they were understood at the Founding, the preface
is fully consistent with the individual right that the Amendment's operative
language sets out. The "Militia" as understood at the Founding was not
a select group such as the National Guard of today. It consisted of all
able-bodied male citizens. The Second Amendment's preface identifies as
a justification for the individual right that a necessary condition for
an effective citizen militia, and for the "free State" that it helps to
secure, is a citizenry that is privately armed and able to use its private
1. The Limits of Prefatory Language.
In the eighteenth century, the proper approach
to interpreting a substantive or "operative" legal provision to which
a lawmaker had joined a declaration (whether a "Whereas" clause or analogous
language) was (1) to seek to interpret the operative provision on its
own, and (2) then to look to the declaration only to clarify any ambiguity
remaining in the operative provision. (69)
It was desirable, if consistent with the operative text, to interpret
the operative provision so that it generally fulfilled the justification
that the preface declared, but a narrow declaration provided no warrant
for restricting the operative text, and the preface could not itself create
an ambiguity. This rule applied equally to declarations located in any
part of a law, not simply at the beginning of it, and to both statutes
and constitutions. We therefore consider this rule applicable to the Second
English Parliaments of the 1700's and late
1600's regularly included prefaces throughout statutes - not only at the
beginning (constituting the first section) but also in particular sections.
(70) The same rule of interpretation applied to both uses of
prefaces. As an example of the latter, a section of a bankruptcy statute
recited the problem of persons who "convey their goods to other
men upon good consideration" before becoming bankrupt, yet continue to
act as owners of the goods; the immediately following clause of the statute
provided that if a bankrupt debtor possessed "any goods or chattels"
with "the consent and permission of the true owner," was their reputed
owner, and disposed of them as an owner, such property should repay the
debtor's debts rather than return to the true owner. The difficulty arose
when the bankrupt debtor possessed property that never had been his, such
as property in trust. A leading case in 1716 read the enacting language
to apply even in such cases and rejected the argument "that the preamble
shall restrain the operation of the enacting clause; and that, because
the preamble is too narrow or defective, therefore the enacting clause,
which has general words, shall be restrained from its full latitude, and
from doing that good which the words would otherwise, and of themselves,
import." (71) The King's Bench reiterated
the rule in 1723, rejecting in a criminal case an argument based on declaratory
language introducing part of a statute: "Now those general words in the
enacting part, shall never be restrained by any words introducing that
part; for it is no rule in the exposition of statutes to confine the general
words of the enacting part to any particular words either introducing
it, or to any such words even in the preamble itself." The court acknowledged
that "a construction which agrees with the preamble" was desirable, "but
not such as may confine the enacting part to it."
Blackstone summed up this understanding in
explaining that, although the words of an enacting clause were "generally
to be understood in their usual and most known signification," yet if
its words, after due analysis, were "still dubious" or "ambiguous,
equivocal, or intricate," one might look to the context, which included
"the proeme, or preamble, [which] is often called in to help the construction
of an act of parliament." (73) Chancellor
Kent, a leading early American commentator, likewise reasoned that a preamble,
although not technically part of the law, "may, at times, aid in the construction
of" a statute or "be resorted to in order to ascertain the inducements
to the making" of it, "but when the words of the enacting clause are clear
and positive, recourse must not be had to the preamble."
Prefatory language also was common in constitutions,
and this rule of construction applied in the same way. Speaking of the
preamble of the whole federal Constitution, Joseph Story in his Commentaries
reiterated that statutory preambles are "properly resorted to, where doubts
or ambiguities arise upon the words of the enacting part; for if they
are clear and unambiguous, there seems little room for interpretation,"
and he could not see "any reason why, in a fundamental law or constitution
of government," the same rule should not apply.
(75) Similarly, the Supreme Court has held that the Constitution's
preamble lacks any operative legal effect and that, even though it states
the Constitution's "general purposes," it cannot be used to conjure a
"spirit" of the document to confound clear operative language;
(76) the Court has, however, also sought some guidance from
the preamble when the operative text did not resolve a question.
The same reasoning applied to declaratory
phrases in the language of individual constitutional provisions, the closest
analogies to the Second Amendment. The 1784 New Hampshire Constitution
provided: "In criminal prosecutions, the trial of facts in the vicinity
where they happen, is so essential to the security of the life, liberty
and estate of the citizen, that no crime or offence ought to be tried
in any other county than that in which it is committed."
(78) Even though in some cases a trial outside of the county
where a crime was committed might bring it closer to the crime scene,
or a judge might think a trial in the county where the crime occurred
not "essential to" (or even in conflict with) "the security of the life,
liberty and estate of the citizen," neither fact would justify disregarding
the clear operative language of this constitutional provision.
(79) Likewise, the pre-1787 constitutions of Massachusetts,
New Hampshire, and Vermont declared that freedom of speech in the legislature
was "so essential to the rights of the people" that words spoken there
could not the basis of "any" suit. (80)
One could not use this declaration to avoid the clear immunity conferred
by the operative language, even where particular statements made in the
legislature - such as an egregious slander unrelated to a pending bill
- were not thought "essential to" the people's rights.
(81) In addition, Madison's draft of what became the First Amendment's
Free Press Clause read: "the freedom of the press, as one of the great
bulwarks of liberty, shall be inviolable."
(82) The emphasized declaratory language presumably could not
have qualified or limited the freedom clearly conferred, such as by exempting
from protection, as hostile to "liberty," publications advocating absolute
A discussion at the Constitutional Convention
demonstrates the same understanding, including that prefaces in a particular
constitutional provision might merely state policy. What would become
Article I, Section 8, Clause 16 of the Constitution, empowering Congress
to "provide for organizing, arming, and disciplining the Militia," had
reached its final form. But George Mason proposed "to preface" it with
the phrase, "And that the liberties of the people may be better secured
against the danger of standing armies in time of peace." He wished "to
insert something pointing out and guarding against the danger of" standing
armies. Madison spoke in favor, because the preface would "discountenance"
a peacetime standing army while "not restrain[ing] Congress from establishing"
one. (83) No doubt an organized, armed,
and disciplined militia would generally "better secure" liberties
against peace-time standing armies (by reducing the need for such armies
and the threat from any that were created), and thus the operative grant
of power "agree[d] with" the declaratory preface;
(84) but the preface did not restrain or confine the power.
We see no reason to except the Second Amendment
from this broadly applicable interpretive rule.
(85) Thus, the Amendment's declaratory preface could not overcome
the unambiguously individual "right of the people to keep and bear Arms"
conferred by the operative text - even if the collective-right and quasi-collective-right
schools' understanding of the preface's meaning were correct, and even
though the preface might help resolve any ambiguities concerning the scope
of that individual right remaining after one has analyzed the operative
text. At the same time, any interpretation of the right ought, if possible
consistent with its text, to further the declared justification in general,
as the Court in Miller recognized when it stated that interpretation
of the Amendment should keep the "end in view" of assuring the continuation
and rendering possible the effectiveness of the militia.
(86) As we explain in the remainder of this subpart - considering
in turn the meaning of "Militia," what a "well regulated Militia" was,
and the ultimate end of "the security of a free State" - the individual-right
view does further the ends set forth in the prefatory language, and therefore
the preface, properly understood, is fully consistent with the individual-right
interpretation of the operative text.
2. The "Militia."
A key claim of the collective-right and quasi-collective-right
schools with regard to the Second Amendment's preface is that a "well
regulated Militia" is a standing military organization or body of troops,
of limited size, organized and governed by state governments, albeit concurrently
with the federal Government (akin to voluntary select forces such as the
National Guard that were established over a hundred years after the Amendment
was adopted). As a result, the argument goes, the Amendment merely protects
the States against federal efforts to undermine such forces, either by
protecting the States directly or by protecting only persons serving in
those forces. (87)
This argument disregards the understanding
of the "Militia" at the time of the Founding. As used in the Second Amendment,
and elsewhere in the Constitution, "Militia" referred to a body consisting
of all adult male citizens up to a certain age (anywhere from forty-five
to sixty), the goal being to include all who were physically capable of
service. It was not limited to a select force of persons in active military
duty. This entire population of able-bodied male citizens was involuntarily
"enrolled" by local militia officials, somewhat as men now register for
the selective service (except that enrollment required no action by the
citizen), and all enrolled citizens were required by law to join occasional
"exercise" - to which they were expected to bring their own, private arms
- but they otherwise remained in civilian life. The militia "rest[ed]
upon the shoulders of the people," (88)
because, as then understood, it consisted of a large number of the "people"
at any one time and of all of the able-bodied white men for a substantial
portion of their lives. It was the people embodied as an armed force.
Thus, a key aspect of the term "Militia" was the composition of the force
to which it referred. As a result, the reference to the "Militia" in the
Second Amendment's preface "agrees with" the individual right that the
Amendment's operative text sets out, (89)
because securing to "the people" a right to keep and to bear their own
arms made such a broad-based, privately armed force more likely to exist
and to be effective. (90)
The term "Militia" was used in contrast both
to a regular, standing army and, more importantly, to a "select militia"
or "corps." (91) The latter distinction
is evident throughout contemporaneous usage, "select militia" denoting
a significantly smaller body, consisting either of better trained military
professionals who could remain active for extended periods, or of those
chosen selectively, perhaps because of political or other discrimination.
(92) For example, at the Constitutional Convention, George Mason
mentioned the need for federal regulation of the militia to ensure that
they were adequately trained. He suspected that the States would not relinquish
"the power over the whole" but would "over a part as a select militia."
He added that "a select militia" would be "as much as the Gen[eral] Gov[ernment]
could advantageously be charged with," and thus suggested that it receive
power only over "one tenth part" of the militia per year. Oliver Ellsworth,
later to be a Senator and Chief Justice, objected because a "select militia"
either would be impractical or would cause "a ruinous declension of the
great body of the Militia." (93) Edmund
Randolph, leader of the Virginia delegation, similarly equated the militia
with "the whole mass" of the people. (94)
In the debate over ratification, both sides
shared this broad understanding of "Militia." Among the Federalists, Madison
in The Federalist predicted that a federal army bent
on oppression would be opposed by "a militia amounting to near half a
million of citizens with arms in their hands" - a group that he likened
to the citizen bands that had fought in the Revolution and linked to "the
advantage of being armed, which the Americans possess over the people
of almost every other nation." (95) Alexander
Hamilton described the militia as "the great body of the yeomanry and
of the other classes of the citizens," "the great body of the people,"
and "the whole nation," which he contrasted with a "select corps."
(96) A Connecticut Federalist writing as "The Republican" praised
as "a capital circumstance in favour of our liberty" that "the people
of this country have arms in their hands; they are not destitute of military
knowledge; every citizen is required by Law to be a soldier; we are all
martialed into companies, regiments, and brigades, for the defence of
our country." (97) In a speech, later
published, in response to South Carolina's vote to ratify, David Ramsay,
a state legislator and delegate to the ratifying convention, praised the
Constitution's militia powers and asked, "What European power will dare
to attack us, when it is known that the yeomanry of the country uniformly
armed and disciplined, may on any emergency be called out to our defence
. . . ?" (98) Maryland's "Aristides,"
in a fairly widely circulated pamphlet, wrote simply that "the militia
. . . is ourselves." (99)
Among the Anti-Federalists, Mason, in the
Virginia Ratifying Convention, asked: "Who are the Militia? They consist
now of the whole people," while warning that the new Congress might exempt
the rich from service. (100) The Federal
Farmer, a leading Anti-Federalist essayist, explained that the "militia,
when properly formed, are in fact the people themselves," and counseled
"that regular troops, and select corps, ought not to be kept up without
evident necessity." If the federal Government properly organized, armed,
and disciplined the militia - including in it, "according to the past
and general usage of the states, all men capable of bearing arms" - the
country would have a "genuine" rather than "select militia." Under such
wise regulation, "the militia are the people."
This common sense of "Militia" also appeared
in the House of Representatives' debates on the Second Amendment, discussed
below in Part III.C.2, and the Second Congress applied it in the first
Militia Act, enacted in 1792, two months after the Second Amendment was
officially ratified. The Act required "each and every able-bodied white
male citizen of the respective states, resident therein, who is or shall
be of the age of eighteen years, and under the age of forty-five years,"
to be "enrolled in the militia" by the local commanding officer. Each
enrolled citizen was required to provide his own arms - "a good musket
or firelock" or "a good rifle" - plus ammunition and accouterments. These
private arms were exempted from "all suits, distresses, executions or
sales, for debt or for the payment of taxes." The enrollees were required
to appear, armed, "when called out to exercise, or into service," although
Congress left the details of exercise to each State.
(102) (Since 1792, Congress has only expanded this definition,
such as by eliminating the racial restriction and including some women.
(103)) Finally, Noah Webster in his 1828 American dictionary
defined "militia" in accord with this Act and the above understanding:
"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." They were "enrolled for
discipline, but not engaged in actual service except in emergencies."
The analogy of the "Militia" to a select
(and voluntary) corps such as the National Guard is further strained by
the common-law prohibition against the King's deploying the militia outside
the country - a rule that Blackstone celebrated as part of the individual's
"absolute right" of "personal liberty." (105)
The Constitution appears to incorporate this rule, by specifying domestic
reasons for the federal Government to call out the militia: "to execute
the Laws of the Union, suppress Insurrections and repel Invasions."
(106) Implicit in the common-law rule is that the militia was
so composed that its members ought to be treated as ordinary citizens
doing their duty, rather than as soldiers. President Taft's Attorney General
reaffirmed this ancient rule in 1912 as Congress was developing the modern
National Guard, which, partly to avoid this rule, was made a component
of the regular military forces. (107)
The Supreme Court in Miller, relying
on a brief historical survey, summarized as follows the definition of
"Militia" that we have set out and explained above:
The signification attributed to the term
Militia appears from the debates in the Convention, the history and
legislation of Colonies and States, and the writings of approved commentators.
These show plainly enough that the Militia comprised all males
physically capable of acting in concert for the common defense.
"A body of citizens enrolled for military discipline." And further,
that ordinarily when called for service these men were expected to
appear bearing arms supplied by themselves and of the kind
in common use at the time. (108)
If, as the Court recognized and historical usage confirms, the "Militia"
was composed of the general population of able-bodied men, an individual
right of the whole people to keep and bear arms would make eminent sense.
A large portion of the "people" would be required to appear occasionally
for service or simply training, and they were expected to bring their
private arms. If the people could be disarmed, it would then, among other
things, be impossible for militiamen to make the required provision of
their privately provided arms when called up, and the citizen militia
would be undermined.
3. The "Well Regulated" Militia.
Advocates of the collective-right and quasi-collective-right
views argue that the Amendment's reference in its preface to a "well regulated"
militia indicates that the preface refers to a select, organized body
akin to today's National Guard. They claim additional support for this
argument from usage of the term "Militia" elsewhere in the Constitution,
in the context of governmental power over the Militia.
(109) No doubt the "Militia" was, through enrollment, exercise,
and command when activated by a governor or president, a creature of the
government. But it does not follow that the meaning of "Militia" as used
in the Second Amendment depended on congressional (or state) legislation
organizing or regulating the Militia. The word's use elsewhere in the
Constitution and the Amendment's prefatory reference to a "well regulated
Militia," properly understood, in fact suggest the opposite.
The Constitution distinguishes not only between
the "Militia" and the regular armed forces but also between different
parts and conditions of the militia. The latter distinctions appear in
(1) Article I, Section 8, Clause 15, authorizing Congress to "provide
for calling forth the Militia"; (2) the immediately following
clause authorizing Congress to "provide for organizing, arming,
and disciplining the Militia, and for governing such Part of them
as may be employed in the Service of the United States"; (3) Article
II, Section 2, Clause 1, making the President commander-in-chief of "the
Militia of the several States" when "called into the actual Service
of the United States"; and (4) the Fifth Amendment, which withholds the
protection of the Grand Jury Clause from persons whose cases arise in
the militia, but only when "in actual service in time of War
or public danger" (cases in the army and navy, by contrast, are always
These provisions indicate that the militia
is of a size that will make complete mobilization usually unnecessary,
that members of the militia will often not be in service (or that not
all parts of the militia will always be in service), and that when any
members are not employed in "actual service," they ought to be treated
as ordinary citizens. The "Militia" is both large and largely latent.
In addition, the reference to "organizing . . . the Militia" suggests
an entity that in some sense exists and is definable apart from congressional
regulation, in contrast to "Armies," which Congress must "raise," pursuant
to another power in Article I, Section 8. Congress might not "organiz[e]"
all of the "Militia"; it might organize some parts differently
from others; and it would be expected to give necessary precision to the
definition of the body's membership by laying down a specific age range
for service (as Congress did in the first Militia Act). But the background
meaning of the word would remain. As an Anti-Federalist writer recognized:
"[T]he militia is divided into two classes, viz. active and inactive,"
the former, he expected, likely to "consist of young men chiefly."
(110) Thus, the use of "Militia" throughout the Constitution
is consistent with the common understanding of the word at the Founding.
Nor does the preface's phrase "well regulated"
alter this sense of "Militia"; rather, it presupposes it. Having an armed
citizenry, which the operative text protects by establishing a right of
individuals, becomes a necessary (albeit not sufficient) condition for
a well-regulated militia once one properly defines "Militia." As one academic
commentator has put it: "The Second Amendment simply forbids one form
of inappropriate regulation," which would ensure a militia that was not
well regulated, namely "disarming the people from whom the militia must
necessarily be drawn. . . . [T]he one thing the government is forbidden
to do is infringe the right of the people, who are the source of the militia's
members, to keep and bear arms." (111)
A militia composed of the whole body of able-bodied male citizens and
only infrequently meeting for state-sponsored exercise is more likely
to be "well regulated" in the bearing of arms, and can more readily be
trained and disciplined, if its members possess their private arms and
are accustomed to them from usage for private purposes between exercises.
(112) And an individual right of the people to have arms has
the indirect effect of securing the ability of States at least to have
their militias armed. (113) As the Court
stated in Miller, the Second Amendment seeks "to assure the continuation
and render possible the effectiveness of" the militia of "all
males physically capable of acting in concert for the common defense."
(114) It protects the minimum for a well-regulated citizen militia.
In addition, the standard for a "well regulated
Militia," as opposed to a well-regulated select militia,
or well-regulated army, presupposes the background meaning of "Militia"
by taking into account the body's large size and varied source. As the
Militia Act of 1792 contemplated, it might be enough to have a county
officer enroll persons and ensure that they possessed arms and knew how
to use them through basic training once or twice a year. Similarly, the
Virginia Declaration of Rights of 1776 defined "a well-regulated militia"
as simply being "composed of the body of the people, trained to arms."
(115) And the first New York Constitution declared that "the
militia" should always "be armed and disciplined, and in readiness for
service" because "it is the duty of every man who enjoys the
protection of society to be prepared and willing to defend it."
Even those Founders skeptical of the benefits
of the citizen militia, and who advocated a more highly regulated select
corps, still recognized the distinction between the proper regulation
of the two. Alexander Hamilton in The Federalist argued
that it would be both "futile" and "injurious" for Congress to attempt
to "disciplin[e] all the militia of the United States." Most
enrolled citizens would need extensive "time and practice . . . under
arms for the purpose of going through military exercises and evolutions
as often as might be necessary to acquire the degree of perfection which
would intitle them to the character of a well-regulated militia." But
such a burden on so many citizens "would be a real grievance to the people
and a serious public inconvenience and loss." Thus, as to "the people
at large," he expected that "[l]ittle more can reasonably be aimed
at . . . than to have them properly armed and equipped" and, for this
purpose, "assemble them once or twice" a year. He therefore recommended
that Congress use its constitutional power to provide for organizing the
militia also to form a select militia - "a select corps of moderate
size." (117) Hamilton was reiterating
George Washington's well-known recommendations to Congress for a two-tiered
militia, consisting of (1) "the Citizens of America . . . from 18 to 50
years of age," who would be put "on the Militia Rolls" and given
minimal training, and (2) "a Corps in every State" consisting
of those aged 18-25. (118) From the opposite
political pole, the Federal Farmer likewise recognized that Congress might
make just such distinctions in "modelling the militia" and warned that
creation of a "select corps of militia" would lead to "inattention
to the general militia." (119)
This understanding of the "well regulated
Militia," and of the possibilities for congressional organization of it
(or not), leads to a view of the preface that not only fits the meaning
of "Militia" in common contemporaneous usage, including throughout the
Constitution, but also most agrees with the meaning of the Second Amendment's
operative text setting out a "right of the people." The "well regulated
Militia" and the "people" were not identical, but because of their close
relationship, a right of the latter - of individuals - to keep and bear
arms would facilitate the former. By contrast, a view rejecting the individual
right on the basis of the preface's reference to the "well regulated Militia"
struggles to harmonize the operative language establishing a seemingly
general and individual right with that prefatory language. As Justice
Scalia has written, a narrow definition of "Militia" "produces a guarantee
that goes far beyond its stated purpose - rather like saying 'police officers
being necessary to law and order, the right of the people to carry handguns
shall not be infringed.'" (120) The "Militia"
on this erroneous view consists only of those few citizens whom a State
chooses to specially organize, arm, and train into professional units,
which requires one to reject the normal, unambiguous meaning of the operative
text as overbroad, rewriting "the people" to mean either "the select militia"
or "the State." If that were the true meaning, the Amendment's authors
chose singularly inartful language.
4. The "Security of a Free State."
The preface's express linking of the "well regulated Militia" to
the ultimate necessity of "the security of a free State" is also fully
consistent with the conclusion that the "right of the people to keep and
bear Arms" is a personal one. The security of a free state at the Founding
no doubt was understood to include those things necessary to the security
of any state, such as "to execute the Laws . . . , suppress Insurrections
and repel Invasions." (121) But the security
of a free State was not just these things. It also was understood
to include the security of freedom in a state. Thus, while Blackstone
recognized the individual liberty of the press as "essential to the nature
of a free state," pre-1787 state constitutions described the same right
as "essential to the security of freedom in a state."
(122) The Preamble of the Constitution states the goal of making
"secure the Blessings of Liberty," and the Fourth Amendment highlights
the importance of the individual "right of the people to be secure in
their persons, houses, papers, and effects." A secure free State
was one in which liberties and rights were secure.
This clause of the Second Amendment's preface
reinforces the individual right to keep and bear arms in two related ways
- by supporting the broad meaning of "Militia" set out above, and by identifying
a benefit for individuals of the right that the operative text secures.
First, to say at the time of the Founding that the militia was necessary
to the security of a "free State" was to refer to the citizen militia,
composed of the people, who retained the right to keep and use their private
weapons. A select militia, particularly if it existed to the exclusion
of the citizen militia, might undermine the free state, if citizens excluded
from it were left defenseless, or if it disarmed the citizens and infringed
their other rights (or both). As we show in Part III.A, that is what had
happened in England during the strife that produced in 1689 the express
right of individual subjects to have and use arms for their defense, the
ancestor of the right in the Second Amendment.
(123) Thus the Virginia Declaration of Rights, the only state
bill of rights before the adoption of the Second Amendment that expressly
tied the militia to the security "of a free State," also emphasized that
the "militia" was "composed of the body of the people."
Contemporaneous writers across the political
spectrum acknowledged the link between the citizen militia and securing
the freedom of a state. "The Republican" praised "a militia of freemen"
as among the "principal circumstances which render liberty secure," and
singled out as "a capital circumstance in favour of our liberty" that
"the people themselves are the military power of our country," having
"arms in their hands" and "military knowledge."
(125) The Federal Farmer listed among the "military forces of
a free country" the "militia," by which he meant "the people themselves
. . . when properly formed." A citizen militia was critical to "the duration
of a free and mild government." Absent it, and in the face of an "anti-republican"
select militia, "the substantial men, having families and property, will
generally be without arms, without knowing the use of them, and defenceless;
whereas, to preserve liberty, it is essential that the whole body of the
people always possess arms, and be taught alike, especially when young,
how to use them." (126) James Burgh,
a Scotsman whose 1774 Political Disquisitions were well-known
in America, including being cited in The Federalist, wrote that
a "good militia" formed "the chief part of the constitution of every free
government" and would "preserve the public liberty." He added that "[t]he
possession of arms is the distinction between a freeman and a slave. .
. . [H]e who thinks he is his own master, and has anything he may call
his own, ought to have arms to defend himself and what he possesses, or
else he lives precariously and at discretion."
(127) Thus, "every male" should be trained in the use of arms,
or at least "all men of property." (128)
Second, and related, the freedom of a state
was understood at the time of the Founding to include a citizen's individual
right of self-defence (that is, defense of his right to life and personal
security) when the state cannot assist him. An individual right to arms
such as that secured by the Second Amendment's operative text helps to
preserve this basic right and thus a free state. As the preface indicates,
the existence of a well-regulated citizen militia further secures the
link between such an individual right and this aspect of a free state
(by increasing the number of persons equipped and trained to exercise
the right well), but, as the discussion of the militia in the previous
paragraph suggests, this link was not understood to be confined to one's
actions while participating in even such a broad-based entity.
(129) Blackstone's summary of key English rights explains this
point. With no mention of the militia, he described the "right of having
and using arms for self-preservation and defence" as the last security
of individual English subjects for keeping the state, including themselves,
[T]he rights, or, as they are frequently termed, the liberties of Englishmen
. . . consist primarily, in the free enjoyment of personal security,
of personal liberty, and of private property. So long as these remain
inviolate, the subject is perfectly free; for every species of compulsive
tyranny and oppression must act in opposition to one or other of these
rights, having no other object upon which it can possibly be employed.
To preserve these from violation, it is necessary, that the constitution
of parliament be supported in its full vigour; and limits, certainly
known, be set to the royal prerogative. And lastly, to vindicate these
rights, when actually violated or attacked, the subjects of England
are entitled, in the first place, to the regular administration and
free course of justice in the courts of law; next, to the right of
petitioning the king and parliament for redress of grievances; and,
lastly, to the right of having and using arms for self-preservation
This right to arms, Blackstone added, facilitates self-defense "when the
sanctions of society and laws are found insufficient to restrain the violence
of oppression." (130) John Locke, although
not explicitly discussing arms, similarly explained the individual right
of self-defense that a free society allows. Discussing the right of self-defense
against a robber, he wrote: "I have no reason to suppose that he who would
take away my liberty, would not, when he had me in his power,
take away everything else." Therefore "the law, which was made for my
preservation, where it cannot interpose to secure my life from present
force, which if lost, is capable of no reparation, permits me my own defence."
It is therefore reasonable to conclude that
the ability of a "right of the people to keep and bear Arms" to further
the Second Amendment preface's ultimate end of the "security of a free
State" consisted not merely in the existence of a trained band ready to
act as soldiers should the State's government call upon them,
but also in the ability of the citizens (many of them part of the privately
armed citizen militia), by individually keeping and bearing arms, to help
secure the freedoms of the State and its citizens.
(132) Thus, the "people" in the Second Amendment were distinct
from the "Militia" and a "State," but a right of the people to keep and
bear arms was understood both to facilitate a well-regulated militia and
to help maintain a State that was free. By contrast, the collective-right
and quasi-collective-right views would sanction not only the creation
of a select militia (to the exclusion of the citizen militia) but also
the disarming of the rest of the citizenry, a result antithetical to the
true "Militia" as understood at the Founding and to the "free State" that
the Founding Generation understood it to secure.
D. Structural Considerations
Our conclusion that the text of the Second
Amendment protects an individual right is further confirmed by the structure
of the Constitution, in particular the Amendment's placement and its inter-relation
with the powers that the Constitution grants over the militia.
1. The Bill of Rights.
The Second Amendment is embedded within the
Bill of Rights. Every one of the other rights and freedoms set forth in
the first nine amendments of the Bill - whether or not phrased as a "right
of the people" - protects individuals, not governments; none of its provisions
protects persons only in connection with service to the government.
(133) As Thomas Cooley summarized, writing of the Bill's first
eight amendments, "[I]t is declared that certain enumerated liberties
of the people shall not be taken away or abridged."
(134) It is therefore reasonable to interpret the Second Amendment
to protect individuals just as the rest of these nine amendments do.
More particularly, the Second Amendment is
located within a subset of the Bill of Rights amendments, the First through
Fourth, that relates most directly to personal freedoms (as opposed to
judicial procedure regulating deprivation by the government of one's life,
liberty, or property) - the amendments that, in Story's words in his Commentaries,
"principally regard subjects properly belonging to a bill of rights."
(135) These four amendments concern liberties that are tied
to the right of individuals to possess and use certain property (the printing
"press" in the First Amendment, (136)
"house[s]" in the Third's restriction on quartering soldiers, and "houses,
papers, and effects" in the Fourth's restriction on searches and seizures),
or otherwise to act without undue governmental interference (worship,
speech, assembly and petition). Again, it seems reasonable to interpret
the Second Amendment, consistently with this context, to set out another
personal liberty (keeping and bearing) and privileged form of individual
property (arms), useful for protecting not only the citizen's person but
also the "houses" that the Third and Fourth Amendments guard.
Finally, the right in the Second Amendment
immediately follows the right to assemble and petition, which concludes
the First Amendment. The latter right is undeniably personal and individual,
not depending on governmental organization, regulation, or service. And
the two are aligned, not only in their placement but also in their origin,
purpose, and limitations. Antecedents of both appeared in proximity in
the English Bill of Rights of 1689. (138)
Blackstone, in the passage block-quoted in the previous subpart, discussed
in immediate succession their dual utility as guards of the great individual
rights of life, liberty, and property, (139)
and he did likewise in discussing the criminal law's limitations on abuses
of those rights. (140) St. George Tucker,
the first leading American commentator on Blackstone and the Constitution
(discussed more in Part IV.A, below), noted that both rights had been
transplanted to the United States from England, both stripped of many
English restrictions. (141) It follows
that the former right - that secured by the Second Amendment - also would
2. The Militia Powers.
Interpreting the Second Amendment in light
of the militia powers granted to the federal Government and the States
in the original Constitution likewise suggests an individual right to
keep and bear arms rather than a "right" of States, against the federal
Government, to maintain select militias or a quasi-collective right to
be exercised only by persons who serve in such entities. Clauses 15 and
16 of Article I, Section 8, respectively grant power to Congress:
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions; [and]
To provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service
of the United States, reserving to the States respectively, the Appointment
of the Officers, and the Authority of training the Militia according
to the discipline prescribed by Congress.
In addition, Article II, Section 2, makes the President "Commander-in-Chief
. . . of the Militia of the several States, when called into the actual
Service of the United States."
These clauses, independently of the Second
Amendment, presuppose the existence of functioning state militias and
leave significant powers over them to the States. The States expressly
retain the powers to appoint all officers and to train the militia according
to federally specified rules. They implicitly retain the power of "governing"
any parts of the militias not in actual service to the federal Government,
and of having those state-appointed officers govern the militias even
when in such service, subject to the President's supreme authority. The
provision regarding officers is why Hamilton could argue credibly in The
Federalist that the States always would retain "a preponderating
influence over the militia." (142) The
Constitution, in elsewhere prohibiting States from "keep[ing] Troops,
or Ships of War in time of peace," while still allowing them to "engage
in War" if "actually invaded" or under an imminent threat, contemplates
that the States will have, and have power to employ, usable militias to
provide necessary defense and emergency war-making ability.
(143) More broadly, the States implicitly retain the power to
call out the militia on their own for domestic purposes.
The original Constitution also leaves to
the States concurrent power to provide for organizing, arming, and disciplining
their militias, so long in so doing they do not interfere with the federal
power. This interpretation has been recognized from the beginning: At
the critical Virginia Ratifying Convention, Henry Lee (future governor
of Virginia and congressman), Edmund Randolph (a Framer who became the
first Attorney General), Madison, and John Marshall all made this textual
argument in response to attacks on the federal power to make such provision.
(145) Story found the arguments for such a concurrent power
"in their structure and reasoning satisfactory and conclusive."
(146) The Supreme Court approved this reading in 1820 in Houston
v. Moore, (147) and has
recently reiterated it. Looking to the "general plan" of the Constitution,
the Court noted in 1990 that, "Were it not for the Militia Clauses, it
might be possible to argue," much as one could regarding federal power
over foreign policy and the armed forces, "that the constitutional allocation
of powers precluded the formation of organized state militia. The Militia
Clauses, however, subordinate any such structural inferences to an express
permission while also subjecting state militia to express federal limitations."
(148) Even the Ninth Circuit in Silveira so interpreted
Article I, Section 8, Clause 16: "The language indicates that the grant
of power [to Congress] is permissive. . . . Nothing in the Article or
elsewhere in the Constitution appears to bar the states from choosing
to arm their respective militias as they wish."
In at least two respects, the above militia
powers in the Constitution suggest an individual-right view of the Second
Amendment. First, any constitutional amendment securing to the States
power to maintain militias would have been largely redundant, whether
the amendment protected the power through a "right" of States or a right
restricted to persons serving in militia units that a State had organized.
A provision should not be read to be redundant if another reasonable interpretation
exists, and the individual-right view of the Amendment is such an interpretation.
Second, one also would expect a protection of the States' militia powers
to use language analogous to that of Clause 16, which concludes by "reserving
to the States respectively, the Appointment of the Officers, and
the Authority of training the Militia according to the discipline
prescribed by Congress." (150) Clause
16's parallel to the protection of state power in the Tenth Amendment,
which provides that certain powers are "reserved to the States
respectively" (while mentioning "the people" separately), is unmistakable,
as is the contrast between such language and the Second Amendment's protection
of a "right of the people." Given the ready availability of such language,
it would be both surprising and inartful for a protection of state authority
to create and maintain organized militias to be phrased as the Second
Amendment is, whether one conceives of the protection as belonging to
the States directly or to those serving it.
The Militia Clauses therefore suggest that
the Second Amendment, to the extent that it furthers the States' authority
to maintain organized militias, does so indirectly, as we discussed in
the previous subpart (II.C.2&3), by ensuring the minimum of a "well
regulated Militia" - that the States' people, the pool for the
citizen militia, would continue to be able to keep and to bear their private
arms, having them ready and being familiar with them. Thus the Militia
Clauses, along with the structure of the Bill of Rights and the preface
of the Second Amendment, all support the personal, individual right to
keep and bear arms that the Amendment's operative text sets out.
III. The Original Understanding of the
Right to Keep and Bear Arms
In the previous part, we focused on the text
and structure of the Constitution, considering the meaning of the Second
Amendment's words and phrases when they were adopted and how the Amendment's
meaning is informed by its inter-relation with the rest of the Constitution.
In this part, we take a broader view and consider the Anglo-American right
to arms as it existed at the time of the Founding and informed the adoption
of the Second Amendment. This history, like the text, indicates that the
Amendment secures an individual right.
We first consider the historical context
of the right to arms, both (A) in England beginning with the Revolution
of 1688-1689 and (B) in America through the American Revolution and the
first state constitutions. The right was consistently a personal one.
Beginning with the right of individual English subjects to have arms for
their defense, it was supplemented in revolutionary America with the notion
that a citizen militia, comprising the armed citizenry, was a particularly
important means of securing free government. As one judge recently put
it, the Americans of the Founding Generation "were the heirs of two revolutions,"
both of which had impressed upon them the importance of an individual
right to have and use arms. (151) This
background understanding of the right is inconsistent with either the
collective-right or quasi-collective-right views. Next, in Subpart III.C,
we turn to (1) the framing and ratification of the Constitution and (2)
the framing and ratification of the Second Amendment. This history demonstrates
that the background understanding, far from being transformed or curtailed,
was incorporated in that Amendment, just as the Bill of Rights incorporated
many other traditional rights of individuals. By contrast, separate proposals
to amend the Constitution to safeguard powers of the States to establish
and maintain organized militias failed.
A. The Right Inherited from
As the Supreme Court has recognized, "The
historical necessities and events of the English constitutional experience
. . . were familiar to" the Framers and should "inform our understanding
of the purpose and meaning of constitutional provisions."
(152) This rule is particularly applicable to provisions such
as the Second Amendment, because "[t]he 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." (153)
The right to arms that colonial Americans
inherited from England had been set out first in the English Declaration
of Rights of 1689, and then had been expounded by William Blackstone in
his authoritative Commentaries on the Laws of England in the
decade before the American Revolution. Both the Declaration and Blackstone
made clear that the English right was a personal, individual one, not
a "right" belonging to any government or restricted to persons in governmental
service. The English right could not have been a federalism provision,
because England lacked a federal structure; and neither the Declaration
nor the law as expounded by Blackstone conditioned the right on a subject's
service in any militia.
The Declaration of Rights was a product of
the English Revolution of 1688-1689 (commonly known as the Glorious Revolution).
In 1660, a special "Convention" Parliament had restored the English monarchy
by crowning Charles II, (154) and two
statutes enacted under him provided background for the Declaration's provisions
on arms. First was the Militia Act, enacted by the royalist Parliament
in 1662. (155) It authorized militia
officers on their own warrants "to search for and seize all arms" of anyone
they judged "dangerous to the peace of the kingdom," including through
entering houses by force if necessary, the arms to be handed over to the
militia and no judicial recourse being available.
(156) Charles II repeatedly used this power,
(157) aided not only by the regular militia but also by a volunteer
army that he had organized unilaterally, (158)
and by a select militia of about 15,000 that he formed in 1666.
(159) The second statute was the Game Act of 1671, which, in
the name of protecting wildlife, was "the first law in English history
that took from the majority of Englishmen the privilege of having firearms."
(160) It outlawed possession of guns (not just their use in
hunting) by anyone not among the few rich qualified to hunt game.
Concerns escalated after the accession in
1685 of Charles's brother, King James II. He was openly Roman Catholic,
at a time of sharp political distrust between England's Protestants and
Catholics. (162) He disarmed the Protestant
militia of Ireland by seizing their arms and placing them in government
magazines, while returning the arms of Ireland's Roman Catholics. In England,
he continued to use the militia to disarm persons of questioned loyalties,
including through strictly enforcing the Game Act, although he ultimately
preferred to undermine the militia (whose loyalty he questioned), by restricting
musters. He also accelerated and expanded his brother's policy of purging
opponents, and Protestants in general, from the militia's and army's officer
corps, and geometrically enlarged the standing army.
James II fled soon after William of Orange
landed in England in late 1688 at the invitation of leading Englishmen.
A Convention Parliament in early 1689 adopted the Declaration of Rights,
which William and his wife Mary (James's daughter) accepted before Parliament
proclaimed them King and Queen, and which the ensuing regular Parliament
enacted as the Bill of Rights. (164)
A hundred years later, Alexander Hamilton in The Federalist celebrated
"the revolution in 1688," when at last "English liberty was completely
The Declaration first listed twelve indictments
of James II for having attempted to subvert "the laws and liberties of
this kingdom," including:
E. By raising and keeping a standing army within this kingdom in time
of peace, without consent of parliament, and quartering soldiers contrary
F. By causing several good subjects, being protestants, to be disarmed,
at the same time when papists were both armed and employed, contrary
Then, in a roughly parallel list of thirteen "ancient rights and liberties,"
the Declaration stated:
6. That the raising or keeping a standing army within the kingdom in
time of peace, unless it be with consent of parliament, is against
7. That the Subjects which are Protestants
may have Arms for their
Defence suitable to their Conditions and
as allowed by Law.
This seventh article is most relevant here,
and it set out a personal right. Neither this article nor the parallel
sixth indictment ties possession of arms to service in the militia, which
the Declaration never mentions. The sixth indictment instead indicates
that being "armed" and being "employed" by the government are distinct
- a distinction confirmed by the historical context, which, as we have
explained, included subjects being disarmed by the militia. Furthermore,
the right belonged to "Subjects," not to any government, and these subjects
were allowed arms "for their Defence."
Critics of the individual-right view contend
that the two concluding clauses of the seventh article - "suitable to
their Conditions, and as allowed by Law" - so restricted the right that
it was a dead letter. Among the restrictions to which these clauses referred
was the Game Act, which literally, albeit likely not in practice, barred
most subjects from owning firearms. (167)
As Lois G. Schwoerer has argued: "English-men did not secure to 'ordinary
citizens' the right to possess weapons. . . . Drafted by upper-class Protestants
who had their own interests at heart, Article VII was a gun control measure."
(168) The Declaration, therefore, the argument goes, could have
had little relevance to the right in the Second Amendment.
But this argument regarding the scope
of the right does not speak to the question that we consider here, which
is whether the English right was a right of individuals, a right of government,
or a right specifically connected with military service to the government.
On that question, the answer is clear. Schwoerer herself recognizes that
many articles of the Declaration "guaranteed rights to the individual,"
including the right "to bear arms (under certain restrictions)."
(169) Class- and religion-based restrictions did not destroy
the personal nature of the right, whatever its scope. The precedent for
Americans was an individual right.
In addition, that Article 7 of the Declaration
(and the Bill) only recognized a right to possess arms "as allowed by
Law" does not mean that it did not secure a true right. In England's constitutional
tradition, particularly evident in the events surrounding the Declaration
of Rights described above, formal English rights restricted only the Crown's
prerogative, not the legislature's power, which was unrestricted. Thus,
although Blackstone was able to explain many years after the English Revolution
that a royal proclamation "for disarming any protestant subjects, will
not bind," (170) the right to arms, like
all other English rights, remained subject to revision or abolition by
Parliament. (171) That characteristic
of English rights hardly prevented Americans from borrowing and adapting
them to a different constitutional structure.
Finally, whatever the actual ability of ordinary
English subjects to have arms for their defense in 1689, by the Founding,
a hundred years later, the right to do so extended to most of the country.
As Judge Kleinfeld of the Ninth Circuit recently observed, "The historical
context of the Second Amendment is a long struggle by the English citizenry
to enable common people to possess firearms." (172)
In new game laws, particularly that of 1706, Parliament deleted guns from
the list of implements that those not qualified to hunt game were prohibited
from owning. (173) The courts determined
that Parliament had made this deletion "purposely."
(174) Thus, notwithstanding the list's catch-all prohibition
of "any other engines," they interpreted the deletion - together with
the existence of "divers . . . lawful purposes" for which one
might keep a gun, such as "for the defence of his house and family" -
as protecting the right of individuals to keep guns even if they were
not qualified to hunt game, so long as they did not hunt with them.
(175) This interpretation of the 1706 game act was considered
"settled and determined" by 1744, and in 1752 the Chief Justice of the
King's Bench reaffirmed that it was "not to be imagined" that Parliament
in that act had intended "to disarm all the people of England."
(176) By 1780, London's Recorder - the city's legal adviser
and the primary judge of its criminal court - in an opinion supporting
the legality of the city's private armed associations formed for self-defense
against riots, could announce as "most clear and undeniable" the "right
of his majesty's Protestant subjects, to have arms for their own defence,
and to use them for lawful purposes," adding that "this right, which every
Protestant most unquestionably possesses individually" also "may, and
in many cases must, be exercised collectively," subject to certain restrictions.
(177) Similarly, an English commentator in the early 1790's
wrote that "every one is at liberty to keep or carry a gun, if he does
not use it for the destruction of game." (178)
Blackstone's Commentaries, first
published in 1765-1769, were for the colonists and the Founding Generation
the leading exposition of England's laws and constitution. In them, he
confirmed that the English right to arms was an individual one and explained
that it had grounds broader and deeper than the right that had been declared
in the Revolution of 1688-1689.
In the first chapter of the first book, Blackstone
detailed the "absolute rights of individuals,"
(179) that is, "such as appertain and belong to particular men,
merely as individuals or single persons" and which "every man is entitled
to enjoy, whether out of society or in it." (180)
It was the purpose of law "to maintain and regulate" these rights in society,
but "wanton and causeless restraint" was "a degree of tyranny."
(181) He delineated three "principal or primary . . . rights
of the people of England": "the right of personal security, the right
of personal liberty, and the right of private property."
But Blackstone recognized that declaring
these three primary rights would be "in vain" and a "dead letter of the
laws, if the constitution had provided no other method to secure their
actual enjoyment." He therefore identified five "auxiliary subordinate
rights of the subject" - "outworks or barriers to protect and maintain"
the principal rights. (183) The first
two were maintaining the constitution of Parliament and clear limits on
the King's prerogative. Because these were more properly issues of governmental
structure, he postponed their discussion to later chapters.
(184) The other three, however, were plainly individual rights:
(a) the "right of every Englishman . . . of applying to the courts of
justice for redress of injuries"; (b) the "right, appertaining to every
individual . . . of petitioning the king, or either house of parliament,
for the redress of grievances," so long as no "riot or tumult" resulted;
and (c) the "right of the subject . . . of having arms for their defence
suitable to their condition and degree, and such as are allowed by law."
He noted that the latter two rights both had been recognized in the 1689
Bill of Rights. (185)
Blackstone explained the subject's right
of having arms as "a public allowance, under due restrictions, of the
natural right of resistance and self-preservation, when the sanctions
of society and laws are found insufficient to restrain the violence of
oppression." (186) By tying the right
to the natural - and thus individual and pre-political - right of self-defense,
he recognized a deeper foundation than its declaration and enactment in
1689 and confirmed that the right existed independently of any bearing
of arms in service to the militia, a subject that he did not mention in
connection with the right. (187)
He returned to the right in concluding the
first chapter. Again grouping together the last three auxiliary rights
(suing, petitioning, and having arms), he explained that all were means
for "the subjects of England" to "vindicate" the three primary rights
"when actually violated or attacked." Thus, subjects were "entitled .
. . to the right of having and using arms for self-preservation and defence."
(188) By his repeated reference to "self-preservation" and his
description of the right as including both "having and using"
arms, Blackstone reiterated that the right had a personal aspect and was
linked to self-defense - to the right to use one's "limbs . . . to protect
himself from external injuries," which was part of the individual right
of personal security. (189)
Finally, Blackstone's view of the right as
belonging to individuals re-appears in his repeated disparagement of game
laws as a pretext to undermine commoners' ability to use or have arms.
He traced them to "slavery" imposed after the fall of the Roman Empire
by invading generals, who sought to "keep the rustici or natives
. . . in as low a condition as possible, and especially to prohibit them
the use of arms." Thus, "we find, in the feudal constitutions, one and
the same law prohibiting the rustici in general from carrying
arms, and also proscribing the use of nets, snares, or other engines for
destroying the game." (190) He denounced
those arising in England after the Norman Conquest of 1066 as a "tyranny
to the commons," (191) and thought their
real rationale was an aristocratic desire to "disarm[ ] the bulk
of the people." (192) He briefly described
England's existing criminal game laws as confused and having a "questionable"
nature, their "rational footing" being elusive.
(193) But he approved hunting restrictions against trespassing
(194) and did not criticize several other restrictions on the
use and carrying of arms, involving breaches of the peace.
Thus, the right to arms that America inherited
from England was a right of individuals, and had deep roots by the time
of the Framing. It did not depend on service in the government's militia,
nor was it a federalism-related "right" of any government. It therefore
provides no warrant for a quasi-collective-right or collective-right view
of the Second Amendment. And, absent any evidence that Americans wished
to abridge this individual right or transform it substantially, a question
that we consider next, the English precedent supports an individual-right
view of that Amendment.
B. The Right
in America before the Framing
The English colonists in America recognized
this right of individual subjects to have and use arms, and they retained
it as they broke from the mother country. They also recognized that it
furthered the citizen militia to which they looked as a security for their
freedom. These related ideas of an individual right to arms and regard
for the citizen militia formed the backdrop for the Second Amendment.
We first consider the history of the American Revolution and then review
the States' first constitutions, written during that war.
1. The Experience of the Revolution.
As the Revolution approached and conflicts with royal authorities
rose, colonial leaders both reaffirmed the individual right to arms inherited
from England and praised the shared duty of being armed imposed by local
law. The colonial militias were broad-based, composed of all able-bodied
white men, who were expected to be armed with the private weapons that
all households were required to keep (regardless of eligibility for militia
duty), there being a "general obligation of all adult male inhabitants
to possess arms, and, with certain exceptions, to cooperate in the work
of defense." (196) Citizens sometimes
were required not only to own weapons but also to carry them, and the
class-based distinctions of England generally did not apply.
(197) America had its own set of distinctions, based on race,
but even free blacks were often allowed to possess arms as individuals,
even though usually barred from militia service.
Boston was the focus of early opposition
to Britain, and its leaders invoked both the individual right to arms
(as secured by the 1689 Bill of Rights and also as expounded by Blackstone)
and the local duty of being armed. A 1768 town meeting led by Samuel Adams,
John Hancock, and others resolved that the right enacted in the English
Bill of Rights was "founded in Nature, Reason and sound Policy, and is
well adapted for the necessary Defence of the Community," while also praising
the colony's law requiring "every listed Soldier and other Householder"
to be armed. The resolution thus requested that any Bostonian lacking
arms "duly . . . observe the said Law."
(199) Boston newspapers defended the meeting's actions:
[I]t is certainly beyond human art and
sophistry, to prove the British subjects, to whom the privilege
of possessing arms is expressly recognized by the Bill of Rights,
and, who live in a province where the law requires them to be equip'd
with arms, &c. are guilty of an illegal act,
in calling upon one another to be provided with them, as the law
A subsequent article by Adams recounted the English Revolution and then
quoted both of Blackstone's primary discussions of the right to arms.
Adams attacked critics of the "late vote of this town, calling upon the
inhabitants to provide themselves with arms for their defence,"
as insufficiently "attend[ing] to the rights of the constitution."
(201) The New York Journal Supplement reiterated this
It is a natural right which the people
have reserved to themselves, confirmed by the Bill of Rights, to keep
arms for their own defence; and as Mr. Blackstone observes, it is
to be made use of when the sanctions of society and law are found
insufficient to restrain the violence of oppression.
The individual's right to have and use arms
for self-defense was reaffirmed in the celebrated "Boston Massacre" murder
trial, in 1770, of British soldiers for firing on a harassing crowd. (Soldiers
had been garrisoned in Boston since late 1768.) John Adams, counsel for
the soldiers, argued that they had acted in self-defense. In his closing
argument, he quoted William Hawkins's Treatise on the Pleas of the
Crown to establish that "'every private person seems to be authorized
by the law, to arm himself'" to defend against dangerous rioters. Adams
added: "Here every private person is authorized to arm himself, and on
the strength of this authority, I do not deny the inhabitants had a right
to arm themselves at that time, for their defence."
(203) Adams reiterated that view in his 1787 Defence of
the Constitutions of Government of the United States of America,
recognizing the propriety of "arms in the hands of citizens, to be used
. . . in private self-defence." (204)
British authorities, much like Charles II
and James II a century before, moved to disarm the colonists as hostilities
mounted in 1774. Britain banned the export of arms and ammunition to any
of the colonies and ordered General Gage to consider how to disarm residents
of rebellious areas. At least in Massachusetts, some disarmament occurred,
and in the "Powder Alarm" of September 1, 1774, British soldiers seized
ammunition belonging to the colonial militia. (205)
These actions stiffened resistance throughout the colonies
(206) and led the colonists to form independent local militias
with broad membership, the "Minutemen." (207)
Gage's attempts in late 1774 and early 1775 to seize these groups' arms
across Massachusetts provoked confrontations with large forces of armed
colonists, and the Revolution was famously ignited by his efforts to do
so at Concord and Lexington in April 1775. (208)
Virginia Governor Dunmore's raid on an ammunitions store in Williamsburg
soon thereafter prompted a similar response, as militiamen surrounded
his home. (209) British authorities'
continuing efforts to disarm colonists were among the actions that the
Continental Congress cited when, in July 1775, it declared the colonies'
reasons for taking up arms. (210)
As the colonists armed and organized themselves,
their leaders continued to turn to their rights as British subjects and
praised the citizen militias that these rights made possible. George Mason's
actions in Virginia (in conjunction with George Washington and others)
provide an example. In September 1774, he chaired a meeting of Fairfax
County citizens to form a private militia association known as the Fairfax
Independent Company. Being "threat'ned with the Destruction of our Civil-rights,
& Liberty, and all that is dear to British Subjects & Freemen,"
members promised to keep themselves well armed and to train together under
elected officers. (211) The following
January, in a document attributed to Mason, the county's Committee of
Safety recommended a tax to purchase ammunition, resolved that "a well
regulated Militia, composed of gentlemen freeholders, and other freemen,
is the natural strength and only stable security of a free Government,"
and urged residents "from sixteen to fifty years of age" to choose officers,
"provide themselves with good Firelocks," and train.
(212) In April 1775, Mason addressed the Company and praised
it as formed "for the great and useful purposes of defending our country,
and preserving those inestimable rights which we inherit from our ancestors."
In a time of "threatened . . . ruin of that constitution under which we
were born," it was a security "that in case of absolute necessity, the
people might be the better enabled to act in defence of their invaded
Similar sentiments appeared in North Carolina.
Soon after Lexington and Concord, the royal governor denounced those urging
people "to be prepared with Arms" and train under committees of safety.
(214) But in July 1775, North Carolina's delegates to the Continental
Congress urged the committees to "form yourselves into a Militia" in the
exercise of "the Right of every English Subject to be prepared
with Weapons for his Defense." (215)
In October 1775, Britain declared the colonies
in rebellion, (216) but organizational
efforts continued. John Adams, in his Thoughts on Government
written in early 1776 in response to requests for advice, recommended
a "Militia Law requiring all men, or with very few exceptions, besides
cases of conscience, to be provided with arms and ammunition, to be trained
at certain seasons." Such a law would be "always a wise institution" but
was "in the present circumstances of our country indispensible."
Many lauded the citizen militias that fought
in the Revolution. American General Nathanael Greene, writing to Thomas
Jefferson, remarked on the "Enterprize and Spirit" of "this Great Bulwark
of Civil Liberty [that] promises Security and Independence to this Country."
(218) Americans credited crucial early victories to the
citizen militias, even while recognizing their limitations.
(219) Well after the war, James Madison could argue in The
Federalist that an oppressive army would be no match for citizen
militias, as "[t]hose who are best acquainted with the late successful
resistance of this country against the British arms" would recognize.
He also pointed to "the advantage of being armed, which the Americans
possess over the people of almost every other nation," governments in
most of the world being "afraid to trust the people with arms."
2. Early Constitutional Recognition
of the Right.
One product of this experience of the American Revolution was
that several States included explicit right-to-bear-arms provisions in
declarations of rights that they adopted during the war. These appeared
in Pennsylvania, North Carolina, Vermont, and Massachusetts. In the identical
provisions of Pennsylvania and Vermont, the language plainly reaffirmed
the established right of individuals to arm themselves for self-defense.
In the provisions of North Carolina and Massachusetts, although the express
scope of the right may have been narrower, the right still belonged to
individuals - these state provisions could not have been intended to protect
the States' prerogatives, nor did they restrict the right to participants
in militia units. Other States, most notably Virginia, did not include
any provision regarding the right to bear arms in their declarations but
did praise "a well regulated Militia." (221)
Virginia. Virginia's Declaration of Rights,
adopted a month before the Declaration of Independence, was the country's
first. Section 13 provided:
That a well regulated militia, composed
of the body of the people, trained to arms, is the proper, natural,
and safe defence of a free State: that standing armies, in time of
peace, should be avoided, as dangerous to liberty; and that in all
cases the military should be under strict subordination to, and governed
by, the civil power. (222)
This provision expressly recognizes the background definition of "militia"
explained in Part II.C: It was not a specialized or select force, but
rather a force of the people. Such an understanding of the militia is
consistent with the right of individuals to have arms - particularly given
that, as we have explained, the citizen militia was supposed to be "trained
to" its members' private arms. (223)
Significantly, the provision's primary author was George Mason,
(224) whose public views have already been noted and who would
play a leading role twelve years later, explained below, in authoring
the proposal of Virginia's ratifying convention that placed together in
a single article the individual right and this praise of the citizen militia.
adopted its Declaration of Rights in September 1776. Article 13, immediately
following an article providing "[t]hat the people have a right to freedom
of speech," read:
That the people have a right to bear
arms for the defence of themselves and the state; and as standing
armies in the time of peace are dangerous to liberty, they ought not
to be kept up; And that the military should be kept under strict subordination
to, and governed by, the civil power. (226)
While following the same structure as Virginia's (of which the convention
members were well aware (227)), this
article replaced the praise of the well-regulated citizen militia with
a right - a right of "the people," who, just as they had an individual
right to speak, also had an individual right to "bear arms," for either
of the dual purposes of defending "themselves and the state." The article
does not restrict the right to those in militia service, which it does
not mention and which Pennsylvania addressed separately: Article 8 broadly
provided that "every member of society," receiving protection from it,
was bound to contribute money and "his personal service when necessary,"
while allowing an exception for anyone "conscientiously scrupulous of
bearing arms, . . . if he will pay [an] equivalent."
(228) And the plan of government, adopted concurrently, provided
for a militia of "[t]he freemen of this commonwealth and their sons."
The plan of government also provided that
persons could use their arms to hunt (without trespassing): "The inhabitants
of this state shall have liberty to fowl and hunt in seasonable times
on the lands they hold, and on all other lands therein not inclosed."
(230) Regardless of the relevance of this provision to the contours
of the right to bear arms (a question beyond the scope of this memorandum),
the provision does seem to have been viewed as a practical security for,
and thus a way of emphasizing the importance of, the right of individuals
that Pennsylvania had elsewhere secured. The view that the English game
laws - which had provided for disarming many in the name of the hunting
privileges of a few - had been a pretext for undermining the right in
practice was prevalent at the time. Thomas Paine had criticized the game
laws in the Pennsylvania Magazine the year before Pennsylvania
adopted its constitution, and one newspaper article, although recognizing
that the newer game acts did not prohibit merely keeping a gun, argued
that English aristocrats still used them to disarm commoners, by procuring
witnesses to claim that defendants had used their arms for hunting.
Pennsylvania held another convention from
November 1789 through September 1790, as the Second Amendment was before
the States for ratification. The resulting constitution retained essentially
the same individual right. Section 21 of the declaration of rights, immediately
following a section providing "[t]hat the citizens have a right" to assemble
and petition, provided:
That the right of the citizens to bear
arms, in defence of themselves and the State, shall not be questioned.
Separately, in the body of the constitution, the protection of conscientious
objectors was combined with the provision relating to the citizen militia:
The freemen of this commonwealth shall
be armed and disciplined for its defence. Those who conscientiously
scruple to bear arms shall not be compelled to do so, but shall pay
an equivalent for personal service. The militia officers shall be
appointed in such manner and for such time as shall be directed by
Thus, the right to "bear arms" remained with individual people,
now "the citizens," and existed for the dual purpose of facilitating the
defense of individuals and the State. Neither purpose was expressly tied
to, let alone limited to, service in the militia. And the duty
of "freemen" to "bear arms," including possible exemption from that duty,
was distinct and was tied to the militia. In both the 1776 and 1790 Pennsylvania
constitutions, "bear arms" could and did bear both meanings.
North Carolina. North Carolina
adopted its constitution and declaration of rights in December 1776. Article
17 of the declaration provided:
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. (234)
This article mentions only the right of the people to bear arms for "the
defence of the State." Regardless of the provision's scope, however, the
right still belonged to individuals, just as the immediately following
Article 18 set out a right of individuals in providing "[t]hat the people
have a right to assemble together," and in contrast with Article 25's
declaration, in delineating the State's boundaries, of "the essential
rights of the collective body of the people" in the "property of the soil."
(235) It would not have made sense, in the context of a state
constitution, for a "right" of "the people" to protect only the prerogatives
of the State. And the provision's text indicates that all of the people
(not just those organized by the State into militia units) had a right
to bear arms, at least in defense of the State. As an early North Carolina
Supreme Court decision recognized, the right in Article 17 belonged "to
every man indeed" and "secur[ed] to him a right of which he cannot
be deprived," to be exercised "for the safety and protection of his country."
(236) Moreover, by expressly protecting the right of the people
to bear arms "for the defence of the State" (something that North Carolinians
were then doing against the British), the drafters of the North Carolina
Constitution do not appear to have intended to abrogate the arguably more
modest individual English right. (237)
Indeed, the president of the constitutional convention, who served on
the committee that wrote the declaration, had been one of the three congressional
delegates who the year before, as discussed above, had urged North Carolinians
to exercise "the Right of every English Subject to be prepared
with Weapons for his Defense." (238)
Vermont. The Vermont constitution
approved in July 1777 provided that "the people have a right to bear arms
for the defence of themselves and the State," in an article identical
to Article 13 of Pennsylvania's Declaration. (239)
As in Pennsylvania, this individual right immediately followed the individual
right of "the people . . . to freedom of speech," and the constitution
separately included a hunting guarantee, citizen-militia provisions, and
an exception for conscientious objectors. (240)
All of these remained in Vermont's 1786 and 1793 constitutions.
17 of the Massachusetts Declaration of Rights of 1780 provided:
The people have a right to keep and to
bear arms for the common defence. And as, in time of peace, armies
are dangerous to liberty, they ought not to be maintained without
the consent of the legislature; and the military power shall always
be held in an exact subordination to the civil authority, and be governed
by it. (242)
In addition, Article 1 announced as among the "natural, essential, and
unalienable rights" of all men "the right of enjoying and defending their
lives and liberties" and "of acquiring, possessing, and protecting property."
(243) Massachusetts was the first State to add "keep" to "bear."
But this double right was said to be "for the common defence," a phrase
that arguably limits the purposes for which one might exercise it. Two
towns had unsuccessfully proposed adding "their own and" before that phrase,
one arguing that this change would make Article 17 "harmonize much better
with" Article 1. (244)
Even assuming that the phrase "for the common
defence" limited the purposes for which arms could be kept and borne,
the "right" remained an individual one - residing in "the people," just
as Article 19 set out an individual right in providing that "[t]he people
have a right, in an orderly and peaceable manner, to assemble to consult
upon the common good." (245) Nothing
in Article 17 or any other provision connected the right to service in
the militia, much less indicated that this "right" of the "people" belonged
to the State or was intended to protect its prerogatives.
(246) Moreover, the addition of the word "keep" to the right
of the people reinforced the individual nature of the right, because,
as explained above in Part II.B.1, the phrase "keep arms" commonly referred
to individuals privately possessing their private arms.
The history of the provision reinforces this
understanding of its text as securing an individual right. The principal
draftsman was John Adams, joined by his cousin Samuel Adams and another
individual. (247) As explained above,
John Adams publicly acknowledged the individual right inherited from England
both before and after he wrote the Declaration, and Samuel Adams both
helped lead the Boston town-meeting that had urged Bostonians to exercise
that individual right and publicly defended its resolution on the authority
of the English Bill of Rights and Blackstone. (248)
Much like Mason, Samuel Adams also would, during the ratification debate,
urge that the Constitution protect that right, as we explain below.
Thus, the right of individual English subjects
was transplanted to America. Americans also, from their experience in
the American Revolution, came to emphasize the citizen militia, which
they recognized was furthered by the individual right to private arms.
But the English right as Americans came to understand it was not, as a
result, somehow newly restricted to a person's service in that militia,
much less to service in a select militia. Nor did early Americans see
the right as a federalism protection (which would not have made sense
in the context of state constitutions) or otherwise the property
of the state rather than its citizens.
C. The Development of the
The proposed Constitution that emerged from
the Constitutional Convention in 1787 did not have a bill of rights, notwithstanding
a late effort by Mason, joined by Elbridge Gerry, to have one drawn up
"with the aid of the State declarations." (249)
It did contain a careful compromise regarding the militia. The federal
Government received, in Article I, Section 8, the powers to call out the
militia "to execute the Laws of the Union, suppress Insurrections, and
repel Invasions," to provide for "organizing, arming, and disciplining"
it, and to govern any part of it in the service of the federal Government
(during which the President would be its commander-in-chief); States expressly
retained the authority to appoint officers and to train the militia.
Proposed bills of rights emerged from the
ratifying conventions of several of the States. Many of these included
protection for the right to arms - usually in language borrowed or adapted
from the individual right to arms in the States' declarations of rights,
and in any event always in language indicating an individual right. In
those proposals, several States for the first time in a single constitutional
provision both set out an individual right to arms and praised the citizen
militia, uniting language from the different state declarations discussed
above. In addition, some Anti-Federalists, concerned about the Constitution's
allocation of powers over the militia, sought to protect the ability of
the States to maintain effective militias. They proposed to do so expressly,
in amendments using language similar to that of Article I, Section 8,
and to be placed in the body of the Constitution, not in a bill of rights.
Yet it was the former proposals that laid
the foundation for the Second Amendment. And the latter proposals failed
in the Federalist-controlled First Congress, which was, as many recognized
at the time, willing to protect individual rights but not to alter the
balance of power struck by the new Constitution between the States and
the nascent federal Government. Thus, the evidence points to an understanding
of the Amendment as securing the individual right to arms already well
established in America, rather than safeguarding the ability of States
to establish well-regulated militias, whether through a "collective right"
of States or a quasi-collective right of militiamen. Rather than "lay
down any novel principles of government," the Second Amendment embodied
the individual "guarant[ee] and immunit[y]" to which Americans were accustomed.
1. Recommendations from the Ratification of
the Original Constitution.
Although the right of individuals to have
arms was not a subject of much direct discussion in the ratification debates,
two major topics are relevant. First, Anti-Federalists objected to the
absence of a bill of rights, often pointing to the English Bill of Rights
(as well as the declarations of the States) as models.
(253) The Federalists' response likewise recognized the English
precedent, but sought to distinguish it on various grounds or to argue
that many rights, such as the English Bill of Rights' ban on "cruel and
unusual punishments," or "the liberty of the press" (which developed after
the Bill), were too indefinite to provide dependable legal protections.
Second, Anti-Federalists denounced the militia
powers to be granted to the federal Government, warning that it would
destroy the militia through any number of means - by neglecting it, by
creating a select militia and then neglecting the general militia, or
(somewhat inconsistently (255)) by destroying
the militia through onerous discipline and excessive deployment. The arguments
from neglect rested on the premise that Congress's power of organizing,
arming, and disciplining the militia would foreclose any such State power.
If true, the militia might be left without any government ensuring its
arming and training. The arguments also were premised on the common understanding
of the "militia" as the citizen militia: The Federal Farmer, the leading
Anti-Federalist essayist, admonished that "to preserve liberty, it is
essential that the whole body of the people always possess arms, and be
taught alike, especially when young, how to use them," and Patrick Henry,
leader in the Virginia Ratifying Convention, warned, "The great object
is, that every man be armed. . . . When this power is given up to Congress
without limitation or bounds, how will your militia be armed?"
(256) Anti-Federalists also warned that Congress would use its
power to establish a standing army to trample traditional liberties, particularly
after it had destroyed the militia. (257)
The Federalists' response emphasized the same understanding of the citizen
militia, asking how the federal Government could tyrannize over a populace
armed as America's was. (258) As already
noted in Part II.D.2 above, they also argued that, in any event, the States
would retain a concurrent power over their militias, including a power
to arm them. (259)
Two separate categories of proposed amendments
resulted from these two sets of arguments. Proposed amendments to protect
the right to keep and bear arms not only were phrased as individual rights
(even when accompanied by language concerning the militia and civilian
control of the military) but also were distinct from proposals that would
safeguard state powers over the militia or restrain federal power to create
a standing army. (Restriction on standing armies would help ensure that
the new government maintained the militia, by ensuring the government's
dependence on it.)
Pennsylvania's Convention, the second to
meet, ratified the Constitution by a 2 to 1 margin in December 1787, without
proposing amendments. (260) A week later,
21 of the 23 dissenting delegates published their Address and Reasons
of Dissent ("Minority Report"), including amendments that
they had proposed but the convention had refused to consider. It drew
heavily from the 1776 Pennsylvania Declaration of Rights. The proposal
regarding arms was Article 7, immediately following one stating that "the
people have a right to the freedom of speech," and it read as follows:
That the people have a right to bear
arms for the defence 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 powers. (261)
Article 8, immediately following, protected the right to hunt on one's
private property and certain other lands. (262)
Separately, the Minority sought, in Article
11, both to restrict Congress's Article I, Section 8, Clause 16 powers
over the militia and to protect state authority over it, by providing
"[t]hat the power of organizing, arming and disciplining the militia (the
manner of disciplining the militia to be prescribed by Congress), remain
with the individual States." (263) They
warned that, without this restriction, Congress's power over
the militia could place "every man, probably from sixteen to sixty years
of age" under Congress's power and military discipline - particularly
"our young men, . . . as a select militia, composed of them, will best
answer the purposes of government" - and also could leave conscientious
objectors compelled to bear arms in the militia.
(264) As in Pennsylvania's 1776 declaration and constitution,
a right to bear arms was distinct from bearing arms in service to the
government. There was no suggestion that the individual right somehow
would directly guard the States' power, and this separate proposal and
comment indicate that the Minority believed that it would not.
The Massachusetts Convention was the first
to include with its ratification, in February 1788, a list of recommended
amendments. The Federalists prepared and had John Hancock introduce the
nine proposals to woo marginal Anti-Federalists. Samuel Adams, while supporting
Hancock's list, also led an effort to add several rights that would appear
in the First, Second, and Fourth Amendments, plus a ban on standing armies
"unless when necessary for the defence of the United States, or of some
one or more of them." Regarding arms, he proposed that the Constitution
"be never construed to authorize Congress . . . to prevent the people
of the United States, who are peaceable citizens, from keeping their own
arms." This language indicated that the "people" consisted of the "citizens,"
who would, so long as they were peaceable, individually keep private arms.
Adams's proposed additions were voted down, and the Convention then narrowly
voted to ratify and to recommend the Federalists' list.
Four months later, New Hampshire's Convention,
also closely divided, adapted some of Adams's proposals.
(266) It recommended the nine amendments that Massachusetts
had, but added three: one calling for a supermajority before Congress
could keep up a standing army in peacetime; the next barring Congress
from making laws regarding religion or infringing the rights of conscience;
and the final one providing that "Congress shall never disarm any Citizen
unless such as are or have been in Actual Rebellion."
(267) New Hampshire thus became the first State whose ratifying
convention as a body recommended that the Constitution protect a right
to arms. Again, the right belonged to the individual citizen.
Although New Hampshire had provided the crucial
ninth State for the Constitution to take effect,
(268) the convention of Virginia, occurring simultaneously and
concluding four days later (on June 25, 1788), had particular importance,
not only because of the possibility that Virginia would be the ninth State
to ratify but also because of the State's significance, the prominence
of its leaders, and the strength of the Anti-Federalists, led by Patrick
Henry. (269) The convention did vote
to ratify, but also recommended numerous amendments. Written by a committee
of Mason, Henry, Madison, George Wythe, and John Marshall, twenty were
proposed for a separate bill of rights and twenty for the body of the
Constitution. Those in the former category amounted to the first full
bill of rights proposed by a state convention, and most made their way
into the federal Bill of Rights. (270)
The proposal regarding arms appeared in the
bill, immediately after the "right[s]" of "the people" to assemble and
petition and to speak, write, and publish. It was a synthesis from the
leading state declarations, providing:
That the people have a right to keep
and bear arms; that a well-regulated militia, composed of the body
of the people trained to arms, is the proper, natural, and safe defence
of a free state; that standing armies, in time of peace, are dangerous
to liberty, and therefore ought to be avoided, as far as the circumstances
and protection of the community will admit; and that, in all cases,
the military should be under strict subordination to, and governed
by, the civil power. (271)
The two strands evident in the Revolutionary Era - an individual right
to arms and high regard for the citizen militia - were brought together:
The proposal combined an individual right-to-arms provision such as those
from the Pennsylvania and Massachusetts Declarations with the praise of
the militia from Virginia's. The "people" would have a right to keep and
bear arms, and a well-regulated militia composed "of the body
of the people" - the people as an organized whole - would protect "a free
state." This language became the foundation for the Second Amendment.
In addition, the combination of the two clauses indicates (as the differing
first clauses of the analogous articles in the Virginia and Pennsylvania
Declarations had done separately) that the individual right and the well-regulated
militia both would contribute to the avoidance of standing armies
and to civilian rule.
Only in its separate list of amendments for
the body of the Constitution did the Virginia convention directly protect
the power of States to maintain militias and restrict the federal power
to raise standing armies. It recommended a supermajority vote for Congress
to maintain a peacetime army (in the spirit of Samuel Adams and the New
Hampshire Convention), and it sought to protect state power over the militia
(much as the Pennsylvania Minority had) with the following provision:
That each state respectively shall have
the power to provide for organizing, arming, and disciplining its
own militia, whensoever Congress shall omit or neglect to provide
for the same. (272)
These distinct proposals confirm what is evident from the declarations
included with the proposal for the bill of rights: The individual right
of the people to keep and bear arms does not directly guard any power
of States to maintain militias. (Much less does it guarantee against standing
armies.) But it does indirectly further the policy of having
a well-regulated militia of the body of the people, as well as that of
mitigating the need for and risk from a standing army.
The New York Convention, voting just over
a month after Virginia's (and ratifying by only 30-27), followed Virginia's
model. The separate declaration of rights included both an individual
right to keep and bear arms (immediately after the "right" of "the People"
to free exercise of religion) and declarations regarding the militia and
That the People have a right to keep and bear Arms; that a well regulated
Militia, including the body of the People capable of bearing arms,
is the proper, natural, and safe defence of a free State.
. . . .
That standing Armies in time of Peace are dangerous to Liberty, and
ought not to be kept up, except in Cases of necessity; and that at
all times, the Military should be under strict Subordination to the
civil Power. (273)
For the body of the Constitution, New York proposed, like New Hampshire
and Virginia, an amendment requiring a supermajority for Congress to maintain
a peacetime standing army. It did not propose express protection of state
power over the militia. (274)
The force of Virginia's proposals is evident
not only in New York's borrowing but also in the first North Carolina
Convention. On August 1, 1788, North Carolina became the only State to
decline to ratify until the Constitution had been amended to include a
bill of rights (Rhode Island had declined even to call a convention),
and it proposed verbatim the amendments that Virginia had proposed - including
the individual right to keep and bear arms and the separate proposals,
for the body of the Constitution, guarding state power over the militias
and mandating supermajorities for standing armies. North Carolina's actions
made the momentum for a bill of rights "virtually irresistible," and,
two months after Congress approved one, a new convention ratified.
Every recommendation in these state conventions
regarding the right to arms sought to protect an individual right - not
a "right" to maintain well-regulated state militias, whether belonging
to the States or to those serving in such entities (much less belonging
just to those serving in well-regulated select militias). Virginia,
New York, and North Carolina also appended declaratory clauses to the
right suggesting that it would benefit the citizen militia, preserve the
freedom of the state, and reduce the need for or risk from a standing
army. But those States that wanted to protect state authority to maintain
militias (Virginia and North Carolina) followed the lead of the Pennsylvania
Minority by proposing separate amendments doing so directly, intended
not for the bill of rights but for the body of the Constitution. Thus,
regarding the right to arms, those who ratified the Constitution did nothing
novel, but rather followed the path marked by the state declarations and
the earlier right from England. They proposed an individual right, not
a "right" of States and not a right restricted to their militias or militiamen.
As the First Congress met, it had before it numerous proposals for an
individual right to arms and a few proposals for safeguarding state militias
by directly protecting state authority, but none for protecting that authority
through a collective or quasi-collective "right" to arms.
2. The Drafting and Ratification of the Second
When the First Congress convened in 1789,
Federalist Congressman James Madison moved quickly to win over marginal
Anti-Federalists by responding to the calls for a bill of rights. The
House soon approved seventeen amendments. The Senate reduced these to
twelve, of which the States ratified the ten that form the Bill of Rights.
The Federalists, victorious in ratification
and dominant in Congress, openly avoided any amendment that would materially
alter the balance of power with the States or otherwise threaten legitimate
federal powers. Thus, the amendments that Congress approved were devoted
almost exclusively to protecting individual rights. Of the categories
of proposals discussed in the previous subpart, only the first - the individual
right of the people to keep and bear arms - received approval. The separate
proposals for protecting state power to organize, discipline, and arm
the militia and for restricting federal power to maintain standing armies
President Washington set the stage in his
inaugural address, urging Congress to consider amendments out of "a reverence
for the characteristic rights of freemen" but "carefully avoid every alteration
which might endanger the benefits of an united and effective government."
(276) Madison reiterated this view in introducing his proposals
in June 1789:
It will be a desirable thing to extinguish from the bosom of every
member of the community, any apprehensions that there are those among
his countrymen who wish to deprive them of the liberty for which they
valiantly fought and honorably bled.
. . . .
I should be unwilling to see a door opened for a re-consideration of
the whole structure of the government, for a re-consideration of the
principles and the substance of the powers given . . . . But I do
wish to see a door opened to consider, so far as to incorporate those
provisions for the security of rights . . . .
. . . .
I believe that the great mass of the people who opposed [the Constitution],
disliked it because it did not contain effectual provision against
encroachments on particular rights, and those safeguards which they
have been long accustomed to have interposed between them and the
magistrate who exercised the sovereign power.
Madison also urged Congress to "expressly declare the great rights of mankind"
and provide "those securities for liberty" demanded by North Carolina
and Rhode Island. In contrast, he was confident that those who opposed
the Constitution's "structure," powers, or restrictions on state powers
were a much smaller group. (278) Other
congressmen similarly hoped that such an approach would win over many
of the disaffected in various States. (279)
Anti-Federalist leaders recognized this focus
on individual rights. Richard Henry Lee, one of Virginia's first senators,
reported to Patrick Henry about a week before Madison's speech "that many
of our amendments will not succeed, but my hopes are strong that such
as may effectually secure civil liberty will not be refused."
(280) Soon after Madison spoke, Virginia's other senator, William
Grayson, wrote to Henry that Madison's proposals "altogether respected
personal liberty." (281)
Among Madison's proposals was the following,
which became the Second Amendment:
The right of the people to keep and bear
arms shall not be infringed; a well armed, and well regulated militia
being the best security of a free country: but no person religiously
scrupulous of bearing arms, shall be compelled to render military
service in person. (282)
The first and second clauses resembled the proposals of the Virginia, New
York, and North Carolina conventions, including by making the connection
between the individual right and the militia. The first clause stated,
as they had, a right both to keep and to bear arms, which belonged to
"the people." Having made this into a full sentence, Madison made the
second clause, which had been free-standing in the Virginia, New York,
and North Carolina proposals, subordinate to the first. In shortening
the second clause, he omitted the definition of the militia, just as Delaware,
Maryland, and New Hampshire had done in their declarations of rights.
(283) He also omitted the conventions' disparagement of standing
armies and admonition to civilian rule, and appended protection for conscientious
objectors, which the Pennsylvania Minority, Virginia, and North Carolina
had separately requested. As the Pennsylvania and Vermont Declarations
had shown even before ratification, there was no inconsistency in recognizing
both an individual right to "bear arms" and an individual exemption from
being compelled to "bear arms" in military service.
That Madison envisioned this proposed "right
of the people" to secure an individual right is confirmed by the notes
for his speech, in which he wrote that those provisions "relat[ing] to
what may be called a bill of rights," including this one, "relate . . .
to private rights"; (284) by
his using in his speech the same language to discuss both the rights of
English subjects and those in his proposed bill;
(285) and by the location in the body of the Constitution in
which he proposed to place these amendments. He recommended that the right
to arms, along with antecedents of the First, Third, Fourth, Eighth, Ninth,
and portions of the Fifth and Sixth Amendments, be added in Article I,
Section 9, immediately after clauses protecting three other individual
rights: the writ of habeas corpus and the prohibitions against ex
post facto laws and bills of attainder. (286)
It is reasonable to assume that Madison viewed the additional rights as
likewise belonging to the individual. (287)
Had he instead intended to protect state militias (whether directly through
a collective right or indirectly through a quasi-collective right), a
more reasonable location would have been in or near the two clauses in
Article I, Section 8, that granted congressional power over the
militia, one of which already "reserv[ed] to the States" certain powers
over the militia. And Madison likely would have drawn from the separate
language that Virginia and others had proposed for just this purpose -
but those proposals had the potential to threaten the balance of powers,
at least by inviting disputes over whether the federal Government had
"neglect[ed]" the militia.
Others also understood Madison's proposal
to secure an individual right to keep and bear arms. Leading Federalist
Congressman Fisher Ames wrote: "Mr. Madison has introduced his long expected
Amendments. . . . It contains a Bill of Rights . . . [including] the right
of the people to bear arms." (288) Elsewhere
he wrote: "The rights of conscience, of bearing arms, of changing the
government, are declared to be inherent in the people."
(289) Tench Coxe took the same view in his Remarks on the
First Part of the Amendments to the Federal Constitution, published
in the major cities. Writing as "A Pennsylvanian" (a pseudonym that he
had used during the ratification debates), he explained the right that
Madison's proposal protected as follows:
As civil rulers, not having their duty
to the people duly before them, may attempt to tyrannize, and as the
military forces which must be occasionally raised to defend our country,
might pervert their power to the injury of their fellow citizens,
the people are confirmed by the . . . article in their right
to keep and bear their private arms. (290)
Coxe recognized that the "right" of "the people" belonged to the "citizens,"
who could both keep and bear "private" arms. He sent his Remarks
to Madison the day that they were published, and Madison six days later
returned thanks for his "explanatory strictures" and the "co-operation
of your pen," noting from New York City that the Remarks "are
already I find in the Gazettes here." (291)
Neither Madison nor, it appears, anyone else disputed Coxe's interpretation.
(292) Samuel Nasson, who had been an Anti-Federalist delegate
to the Massachusetts Ratifying Convention, described the right similarly
in a letter to a Federalist Congressman from the State a month after Madison
introduced his proposals:
I find that Ammendments are once again on the Carpet. I hope that such
may take place as will be for the Best Interest of the whole[.] A
Bill of rights well secured that we the people may know how far we
may Proceade in Every Department[,] then their will be no Dispute
Between the people and rulers[.] [I]n that may be secured the right
to keep arms for Common and Extraordinary Occations such as to secure
ourselves against the wild Beast and also to amuse us by fowling and
for our Defence against a Common Enemy[.] [Y]ou know to learn the
Use of arms is all that can Save us from a forighn foe that may attempt
to subdue us[,] for if we keep up the Use of arms and become acquainted
with them we Shall allway be able to look them in the face that arise
up against us[.] (293)
Like Coxe and others, Nasson understood "the people" as distinct from the
government, and included in "the right" of the people private ownership
and private uses of arms.
In late July 1789, a committee, to which
had been referred both Madison's proposals and all amendments that ratifying
conventions had proposed, issued a revised draft. It provided:
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 religiously scrupulous shall be compelled to bear arms.
The Committee had left unchanged the text of Madison's independent clause
stating the right. But it had inverted the first two clauses, modified
the language regarding the militia to return it somewhat to what had been
proposed by some of the state conventions (including by defining the militia),
and revised the conscientious-objector clause.
There is no reason to suppose that the mere
reversal of order, or any of the other changes, had altered the right
that Madison, and the ratifying conventions before him, had set out: The
operative text of the independent clause was unchanged from Madison's
draft, with the militia clause retaining its subordinate relationship;
Madison had served on the committee, which does not seem to have had any
serious disagreements over content; (295)
and the committee had retained Madison's proposal that this amendment,
along with the rest of the "Bill of Rights," be placed among the three
pre-existing individual rights in Article I, Section 9, albeit moved forward
one clause. (296) In the ensuing debates,
no member of the House suggested that any change in the right had occurred.
The Speaker of the House, from Pennsylvania, wrote to a leading fellow
Federalist in the State that the committee's proposals "take[ ] in the
principal Amendments which our Minority had so much at heart"; the Minority
had, as discussed above, proposed an individual right to bear arms.
(297) And an article in Boston, reprinted in Philadelphia, described
the committee's proposal as containing "[e]very one of" the amendments
"introduced to the convention of this commonwealth by . . . Samuel Adams"
(except the restriction against a standing army), including that "the
said constitution be never construed . . . to prevent the people of the
United States who are peaceable citizens, from keeping their own arms."
(298) Clearly, the committee's proposed amendment on arms, like
Madison's and like Adams's, was understood to protect an individual right.
In floor debate that began in mid-August,
the focus was on the concluding exemption for conscientious objectors
and thus on militia service rather than "the right of the people" that
the committee's draft secured. Representative Gerry of Massachusetts,
who had refused to sign the Constitution and was a leading Anti-Federalist,
(299) objected that this final clause would enable the federal
Government to "declare who are those religiously scrupulous, and prevent
them from bearing arms." This, he warned, "together with [Congress's]
other powers," would enable Congress to "destroy the militia" and establish
"a standing army, the bane of liberty." (300)
He moved to narrow the clause, but after a debate, including an effort
to delete it, the House approved the committee's draft. Immediately after,
it resoundingly defeated another Anti-Federalist's motion to require a
supermajority to authorize a standing army in peacetime.
It does not appear from the debates that
any congressman shared Gerry's concern, but, in any event, his concern
seems more consistent with a view that the amendment secured an individual
right than with the alternative views. Gerry presumed that the first two
clauses - praising the well-regulated militia and setting out the right
of the people - would not suffice to protect the militia in the face of
affirmative federal efforts to undermine it. The individual right was
inadequate to do so. That understanding is consistent with the individual-right
view, as we explained above in Part II.C. It also was the understanding,
and concern, implicit in the dual recommendations of Virginia, North Carolina,
and the Pennsylvania Minority, which sought separately to protect both
state militia powers and the individual right to arms. In addition, if
the "right of the people . . . to bear arms" meant some right restricted
to serving in an organized militia, rather than a personal right, Gerry's
concern would not have made sense: Persons whom Congress declared religiously
scrupulous pursuant to the proposed amendment, although therefore not
"compelled to bear arms" in the militia, still would, under a
quasi-collective-right view of the other clauses of the amendment, have
some right to do so, and thus Congress could not, as Gerry charged,
"prevent them" from serving.
After more debate over the conscientious-objector
clause on August 20, the House added back "in person" at the end and approved
the draft. (302) It attached all of the
amendments to the end of the Constitution rather than incorporating them,
but no substantive change was intended. (303)
The right of the people to keep and bear arms was the fifth of the seventeen
proposed amendments that the House then sent to the Senate.
An Anti-Federalist who during the ratification
debates had written widely published essays as "Centinel" was enraged
enough by the House's failure to restrict federal, and protect state,
power that he took up his pen again, as Centinel Revived.
(305) He denounced "the partial amendments making by Congress"
and lamented that, although "many of these amendments are very proper
and necessary, yet . . . the constitution is suffered to retain
powers that may not only defeat their salutary operation, but may, and
incontrovertibly will be so decisively injurious as to sweep away every
vestige of liberty." He highlighted the Second Amendment for criticism:
It is remarkable that this article only makes the observation, "that
a well regulated militia, composed of the body of the people,
is the best security of a free state;" it does not ordain, or constitutionally
provide for, the establishment of such a one. The absolute command
vested by other sections in Congress over the militia, are not in
the least abridged by this amendment. (306)
Centinel understood the Second Amendment not to constrain Congress's Article
I, Section 8 "absolute command" over the militia or otherwise secure any
power of the States to maintain one (whether by creating a "right" of
States or of the members of their organized militia units), and understood
the Amendment's prefatory praise of the militia - a mere "observation"
- not to have any operative effect. The reasonable inference is that he
viewed the "right of the people to keep and bear arms" as one belonging
The Senate reduced the House's proposed amendments
to twelve in early September. (307) In
so doing, it made three changes in what would become the Second Amendment:
(1) deleting "composed of the body of the people," (2) replacing "the
best" with "necessary to the," and (3) deleting the conscientious-objector
clause. It also voted down a motion to insert "for the common defense"
immediately after "to keep and bear Arms." (308)
The Senate deliberated in secret, and its minutes are conclusory, so it
is difficult to discern the reasons for these changes. One could argue
that some of them (deletion of the conscientious-objector clause and rejection
of the "common defense" clause) tend to support the individual-right view
of the Amendment, although contrary arguments are no doubt possible.
(309) One also could argue that deletion of the definition of
the militia cuts against the individual-right view's reading of the prefatory
language, although there, too, a counter-argument is possible.
(310) Because of the lack of historical records and the multiple
possible explanations, we are reluctant to attribute any material significance
to these actions.
We do, however, find it significant that
the Senate rejected a motion to add a separate amendment securing state
power to organize, arm, and discipline the militias if Congress should
"omit or neglect" to do so. (311) Notwithstanding
the lack of historical records of the deliberations on this motion, the
broader historical context suggests that, had Congress sought to secure
the States' ability to maintain organized militia units, adopting this
provision is how it would have done so. It is hard to ascribe this vote
to a view that the proposed amendment was redundant with the right of
the people to keep and bear arms: Not only are the texts of the two provisions
markedly different, but also, as explained in the previous subpart, the
Virginia and North Carolina Ratifying Conventions (from which the rejected
language was directly taken) had made distinct proposals, one covering
the right to arms and the other covering state power over the militia
(the Pennsylvania Minority also had done this). In addition, the Senate
was even more Federalist than the House (Lee and Grayson of Virginia being
the only Anti-Federalists among the 22 senators).
(312) As already noted, the Federalists were determined to avoid
amendments affecting the federal-state balance of power and instead to
focus on individual rights. If senators had thought that what became the
Second Amendment had the effect of this rejected provision, one would
have expected them to have refused to approve it as well. Finally, the
two Anti-Federalist senators acknowledged that their efforts to obtain
amendments affecting the federal-state balance had failed. Senator Lee,
like Centinel, complained, in a letter to Patrick Henry, that the amendments
were inadequate for "securing the due Authority of the States."
(313) Senators Lee and Grayson jointly informed the Virginia
legislature of their failure to secure the "Radical Amendments proposed
by the Convention." (314) Thus, the Senate
continued the House's approach - rejecting attempts to restrict congressional
powers or augment state powers, while securing individual rights in the
hope of creating a national consensus in favor of the new Government.
On September 24, 1789, a conference committee
agreed to some changes in the Senate's proposed amendments, but there
was no change in (or effort to change) the Senate's version of what became
the Second Amendment. Congress, through the President, then sent the twelve
proposed amendments to the then-eleven States for ratification and to
North Carolina and Rhode Island (which still had not ratified the Constitution).
(315) The records of the state ratifying conventions are sparse
and do not appear to provide any significant material concerning the meaning
of the Second Amendment right. (316)
The States approved ten of the twelve proposed amendments, and in March
1792, Secretary of State Jefferson officially declared the Bill of Rights
The history in this subpart of the immediate
development of the Second Amendment reveals a right consistent with, and
developed from, the individual right to arms that had been inherited from
England, recognized and invoked in revolutionary America, and codified
to various extents in early state declarations of rights. In addition,
the early States prized a well-regulated citizen militia, as some of their
declarations recognized, and understood the individual right to arms to
facilitate such a militia. The Second Amendment, following the lead of
several of the ratifying conventions, reflects the contemporaneous understanding
of this relationship; in so doing, it grants the right to "the people,"
not to the "Militia" (much less to members of select militia units), or
to the "State." Nor does the history support limiting the right secured
by the Amendment to any of these entities. Indeed, those who wanted to
ensure that the States could have fully functioning militias proposed
a separate amendment, expressly protecting state power. Their proposals
failed. (318) Thus, the history of the
Amendment, like its text, indicates that the Second Amendment's "right
of the people to keep and bear Arms" is not collective or quasi-collective
but rather is a personal right that belongs to individuals.
IV. The Early Interpretations
Our analysis of the Second Amendment's text
and history in the two preceding parts of this memorandum is supported
by the views of those who first interpreted the Amendment. In the generations
immediately following its ratification, the three leading commentators
to consider the Second Amendment each recognized that its right of the
people to keep and bear arms belonged to individuals, not to States and
not just to members of militias (whether of organized, select militia
units or even of the citizen militia). Nearly all of the discussions of
the antebellum courts, including in the leading cases, understood the
right in the same way, whether they were considering the Second Amendment
or similar provisions in state constitutions. This early understanding
of a personal right continued at least through Reconstruction. The modern
alternative views of the Second Amendment did not take hold until 1905,
well over a century after the Amendment had been ratified.
A. The First Commentators
In the first few decades after the Second
Amendment was drafted and ratified, each of the three leading commentators
on the Constitution addressed it: St. George Tucker, William Rawle, and
Joseph Story. Each agreed that it protects an individual right. Less prominent
early commentators also concurred with this interpretation.
Tucker, a judge and law professor from Virginia,
published in 1803 an edition of Blackstone's Commentaries to
which he had added annotations and essays explaining the relation of American
law, including the new Constitution, to England's. Tucker's Blackstone
quickly became the leading American authority on both Blackstone and American
Tucker addressed the Second Amendment at
several points. He first did so, repeatedly, in his introductory View
of the Constitution of the United States. He tied the federal right,
as Blackstone had the English one, to the individual, natural right of
self-defense and to the freedom of the state. After quoting the Amendment,
This may be considered as the true palladium of liberty . . . . 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. (320)
He condemned the use of the game laws in England as a pretext to disarm
ordinary people - the "farmer, or inferior tradesman, or other person
not qualified to kill game." (321) And
he grouped the Second Amendment right with those of the First, confirming
that all belonged to individuals:
If, for example, a law be passed by congress, prohibiting the free
exercise of religion, according to the dictates, or persuasions of
a man's own conscience; or abridging the freedom of speech, or of
the press; or the right of the people to assemble peaceably, or to
keep and bear arms; it would, in any of these cases, be the province
of the judiciary to pronounce whether any such act were constitutional,
or not; and if not, to acquit the accused . . . .
Second, in annotating Blackstone's description,
in Book I, Chapter 1, of the individual English subject's right to have
and use arms for self-defense (discussed above in Part III.A), Tucker
praised the Second Amendment "right of the people" for being "without
any qualification as to their condition or degree, as is the case in the
British government" (under England's Bill of Rights) and again denounced
the game laws, by which "the right of keeping arms is effectually taken
away from the people of England." (323)
Finally, in a note to one of Blackstone's (critical) discussions of the
game laws, Tucker once more attacked them, because "it seems to be held"
that no one but the very rich has "any right to keep a gun in his house"
or "keep a gun for their defence," the result being that "the whole nation
are completely disarmed, and left at the mercy of the government," and
"the mass of the people" are kept "in a state of the most abject subjection."
By contrast, "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." (324)
In all of these discussions, the right belonged
to individuals - to persons availing themselves of the natural, individual
"right of self defence," to the "accused" seeking judicial review of a
violation of the Second Amendment, and to "the mass" of ordinary people
able to defend themselves because protected by the Second Amendment from
class-based pretexts for disarmament. Tucker understood both the English
and American rights to arms to belong to individuals, and he thought the
latter more secure and broad-based.
Nowhere did Tucker suggest that the right
of the people to keep and bear arms depended on a person's enrollment
and exercise in the citizen militia (much less his membership in an organized,
select militia unit) or that it was a "right" that belonged to state governments.
He did elsewhere, in discussing the Militia Clauses, point out that the
Second Amendment eliminated "all room for doubt, or uneasiness" on whether
the federal Government could prohibit States from simply providing arms
for their militias (doubt he rightly found questionable given that the
original Constitution left a concurrent arming power in the States).
(325) Tucker did not suggest here that he thought the Amendment
had only this effect, and his other discussions confirm that he did not
so understand it.
William Rawle of Pennsylvania published his
View of the Constitution of the United States of America in 1825,
with a second edition appearing in 1829. After having turned down President
Washington's offer to be the first attorney general, he had served in
the Pennsylvania Assembly when it ratified the Bill of Rights. His commentary,
like Tucker's, gained wide prominence. (326)
Rawle analyzed the Second Amendment in a
chapter entitled "Of the Restrictions on the Powers of Congress . . .
[,] Restrictions on the Powers of States and Security to the Rights
of Individuals," by which he meant, respectively, Article I, Section
9; Article I, Section 10; and the first eight amendments of the Bill of
Rights. (327) He started with the Second
Amendment's preface, giving to it, including the word "Militia," precisely
the sense and significance that emerges from our analysis above, and making
clear that the substantive right belonged to the ordinary citizen:
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. . . . That they should be well regulated, is judiciously
added. . . . 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. . . .
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 in any
blind pursuit of inordinate power, either should attempt it, this
amendment may be appealed to as a restraint on both.
Both Rawle's language - the Amendment's prohibition "is general" and protects
the arms of "the people" - and his view of the Second Amendment as applying
to the States and restricting their power indicate that he saw
the right as individual, not as collective or quasi-collective.
Two additional points further show that Rawle
viewed the right as belonging to individuals. Like Tucker, he favorably
contrasted the right of the people that the Second Amendment secured with
the more selective individual right in England under the aristocratic
game laws, including a summary of Blackstone's critique of those laws.
In addition, he expressly recognized, as had Blackstone, Tucker, and,
in varying degrees, the Pennsylvania Minority, Samuel Adams, and the New
Hampshire Ratifying Convention, that the right provided no warrant to
breach the peace, including by inciting reasonable fear of a breach.
(329) This recognition indicates an individual-right view because
there is no need for ordinary criminal law to oversee either the actions
of States in regulating their militias or the bearing of arms by members
of a State's militia in connection with their service and under state
Rawle further explained the individual-right
view's understanding of the Second Amendment preface when discussing the
President's limited power to command the militia. Although not mentioning
the Amendment expressly, he noted: "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."
(330) Thus, the "people" of the country, as individuals, keep
and bear arms for private purposes; they also form the militia; and the
former facilitates the latter, but only as a rudiment. That is why the
individual right is a "corollary" from the need for a militia.
The same view appears in the influential
1833 Commentaries on the Constitution of the United States of
Supreme Court Justice and law professor Joseph Story, as well as in his
later Familiar Exposition of the Constitution. The Commentaries
appeared first in a three-volume set and then, a few months later, in
a one-volume abridgement by Story (the "Abridgement").
Story devoted a chapter of his Abridgement
to the Bill of Rights. Before turning to its provisions, he recounted
the debate over whether to add one and identified several purposes, all
related to individual rights: (1) to prevent powers granted to the government
from being exercised in a way "dangerous to the people"; (2) as part of
"the muniments of freemen, showing their title to protection," to ensure
against an "extravagant or undue extention of" powers granted; and (3)
to protect minorities. (332) He then
singled out those amendments that did not relate to judicial procedure
(the First, Second, Third, Fourth, Eighth, Ninth, and Tenth) as those
addressing "subjects properly belonging to a bill of rights."
With regard to the Second Amendment, he first
explained the importance of the militia for "a free country," including
as a check on "domestic usurpations of power," and the hazards "for a
free people" of keeping up "large military establishments and standing
armies in time of peace." He linked these policies to the right: "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
will generally, even if these are successful in the first instance, enable
the people to resist and triumph over them." (334)
In the unabridged version, he cited Tucker, Rawle, and the House of Representatives'
first day of debate on the Amendment in support of this sentence.
By paraphrasing the "right of the people"
as the "right of the citizens" - not of States or members of their militias
- as well as by citing Tucker and Rawle's discussions (including borrowing
from Tucker's "palladium" language), Story left no doubt that he considered
the right to belong to individuals. He reinforced this point in an additional
paragraph in the unabridged version, citing both Blackstone's discussion
of the "similar provision" in England - clearly an individual right, as
explained above - and Tucker's discussion of what Story called the "defensive
privilege" there. (336) In his Familiar
Exposition, Story began his discussion of the Amendment with an even
more explicit statement: "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." (337)
Thus Story, like Tucker, Rawle, and others,
recognized that the right that the Second Amendment secured was an individual
one. He also saw, as they had, that this personal right was necessary
for ensuring a well-regulated militia of the people. But he likewise recognized,
consistent with the individual-right view, that such a right was not sufficient
for ensuring such an entity, wondering how it would be "practicable to
keep the people duly armed without some organization," and lamenting the
decline of militia discipline. (338)
Less prominent commentators shared Tucker, Rawle, and Story's view of
the Second Amendment as securing an individual right. Most significant
of these was probably Henry Tucker (son of St. George). In an 1831 commentary,
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.
He also noted that the right inherited from England and expounded by Blackstone
"is secured with us by" the Second Amendment. (340)
And Jonathan Elliot, in his record of the ratification debates first published
in the 1830's, provided an index of the Constitution that, under the heading
"Rights of the citizen declared to be," listed each of the rights
of the first nine amendments of the Bill of Rights, including "To keep
and bear arms." (341) He grouped the
right secured by the Second Amendment with the unquestionably individual
rights secured by its neighbors. There was no entry in the index for the
militia or its members, aside from reference to the congressional powers
in Article I, Section 8, and none of his entries regarding the States
included reference to the militia or the Second Amendment.
(342) Thus, these early commentators were all consistent in
recognizing that the Second Amendment secures an individual right. They
did not even mention possible alternative views, whether involving a collective
or a quasi-collective "right."
B. The First Cases
Like the commentators, the early case law
also treated the Second Amendment as securing a right of individuals,
not a right of governments or those in its service. Without taking any
position on the correctness of the courts' holdings or the constitutionality,
under the Second Amendment, of any particular limitations on owning, carrying,
or using firearms, we find it significant that these decisions consistently
understood the right to be an individual one. The earliest cases, although
not numerous, consistently recognized that the right to "bear" arms belonged
to individuals, just as the right to "keep" them did. Judicial treatment
became more common beginning in the 1840's, mostly because of new prohibitions
on carrying weapons concealed. The courts upheld these prohibitions (some
courts applying the Second Amendment and some applying similar state provisions),
but in so doing they all recognized an individual right to arms: All of
the decisions recognized an individual right to keep private arms; nearly
all, including the leading cases, recognized a right of individuals to
"bear" those arms for private purposes; and all recognized some manner
of individual right to bear them. Most notably, the Supreme Court of Georgia
twice unanimously ruled in favor of individuals on the basis of the Second
1. Cases Before 1840.
The first of the early cases is Houston
v. Moore, in 1820. The Supreme Court, in upholding Pennsylvania's
power to try a militiaman for failing to report for federal service in
the War of 1812, recognized that States had concurrent power to regulate
their militias at least when the militias were in the service of their
State or in the absence of congressional regulation. Yet it did not mention
the Second Amendment. Justice Story, in dissent, also recognized the concurrent
power, and he noted that the Second Amendment was probably irrelevant
to the question. (343) As we explained
above in Part III.C.1, the Anti-Federalists who claimed to fear that the
federal militia powers would not allow a concurrent state jurisdiction
did not rely on the proposals for a right to arms to resolve their concern,
but rather proposed separate amendments (which failed to pass). It appears
that the Court in Houston similarly recognized that the Second
Amendment did not guard state power to maintain militias, whether by creating
a collective right of States or a quasi-collective right of militiamen
to vindicate state power. Otherwise, one would expect the Court to have
discussed it. Thus, Houston, although far from conclusive, lends
some support to an individual-right view.
Second, in Bliss v. Commonwealth
(1822), in what appears to be the first judicial interpretation of the
right to bear arms in America, a divided highest court of Kentucky applied
that State's constitutional protection of "the right of the citizens to
bear arms in defense of themselves and the state," first adopted in 1792,
to void a ban on wearing certain weapons concealed.
(344) The State had argued that the ban merely restricted the
manner of exercising the right. The court, although not citing authority,
gave two primary reasons for rejecting this argument: (1) the right in
1792 included carrying weapons concealed, and (2) to recognize this one
exception would leave no principled basis to reject others, eviscerating
the right. (345) The court's specific
holding was rejected thereafter - by courts (346)
and by the people of Kentucky, who in their 1850 constitution added a
clause allowing laws to prevent carrying concealed arms.
(347) But the holding was rejected not on the ground that it
improperly recognized a right of individuals to "bear arms" (Kentucky's
provision remained otherwise unchanged), but rather on the ground that
Bliss erred in determining the right's scope. Thus Bliss
confirms the individual nature of the right.
Third, several early references to the right
or to "bearing arms" indicate that courts viewed the right as an individual
one, or at least that an individual carrying weapons and not in militia
service could be said to "bear arms." A Virginia appellate court in 1824,
discussing that State's restrictions on the rights of free blacks - "many
of which are inconsistent with the letter and spirit of the Constitution,
both of this State and of the United States" - cited the restriction "upon
their right to bear arms." (348) That
the restriction involved their rights as individuals is evident from Tucker's
summary of the Virginia laws. (349) In
an 1829 libel case, the Supreme Court of Michigan (then a territory) drew
a parallel between the freedoms of speech and press and the right of the
people to bear arms to explain that individual rights are not unlimited:
"The constitution of the United States also grants to the citizen the
right to keep and bear arms. But the grant of this privilege cannot be
construed into the right in him who keeps a gun to destroy his neighbor."
(350) And in a jury instruction while riding circuit in 1833,
in a case unrelated to the militia, U.S. Supreme Court Justice Baldwin
included the Amendment in a list of potentially relevant individual rights.
Last of the earliest cases is the 1833 decision
of the Supreme Court of Tennessee in Simpson v. State.
(352) The question was the validity of a boilerplate indictment
alleging that the defendant had appeared in a "public street and highway
. . . arrayed in a warlike manner" and then "to the great terror and disturbance
of divers good citizens . . . an affray did make . . . against the peace
and dignity of the state." (353) The
court held the indictment invalid because it alleged neither fighting
(an element of "affray") nor any other act likely to have caused public
terror and indictable at common law. The court reached this conclusion
first by considering the common law, particularly as set out by Blackstone.
But because there was some uncertainty regarding the common law, the court
also relied on the 1796 Tennessee Constitution, which provided "that the
freemen of this state have a right to keep and to bear arms for their
common defence." (354) This right eliminated
any doubt whether merely appearing in public armed could create "terror"
and thus be criminal: "By this clause of the constitution, an express
power is given and secured to all the free citizens of the state to keep
and bear arms for their defence, without any qualification whatever as
to their kind or nature." (355) The court
recognized that individuals could "bear arms" for private purposes, just
as they could "keep" them, and included self-defense within "their common
defence." Thus, in the first four decades after the Founding, the courts
were consistent in recognizing that the right to keep and bear arms was
a right of individuals, allowing both the keeping of private arms and
the bearing of them for private purposes.
2. Cases from 1840 to the Civil War.
The leading case from the antebellum period
on the right to bear arms, and the first major decision, was State
v. Reid in 1840. The Supreme Court of Alabama unanimously
upheld the State's new ban on carrying guns or knives secretly, finding
no violation of the provision in the State's 1819 constitution that "[e]very
citizen has a right to bear arms, in defence of himself and the State."
(356) In so doing, the court recognized that the provision's
right to "bear arms" was a right of an individual, who could bear them
to facilitate his self-defense. The court first looked to the origins
of the right in the "provisions in favor of the liberty of the subject"
in the English Declaration of Rights. Quoting the right of subjects to
have arms for their defense, the court explained: "The evil which was
intended to be remedied by the provision quoted, was a denial of the right
of Protestants to have arms for their defence, and not an inhibition to
wear them secretly." (357)
The court then adopted the State's factual
argument that carrying weapons concealed did not facilitate self-defense
but rather served the purpose of aggression and breaching the peace. The
court elaborated in explaining the limits of the State's power to enact
laws regulating "the manner in which arms shall be borne":
A statute which, under the pretence of regulating, amounts to a destruction
of the right, or which requires arms to be so borne as to render them
wholly useless for the purpose of defence, would be clearly unconstitutional.
But a law which is intended merely to promote personal security, and
to put down lawless aggression and violence, and to that end inhibits
the wearing of certain weapons, in such a manner as is calculated
to exert an unhappy influence upon the moral feelings of the wearer,
by making him less regardful of the personal security of others, does
not come in collision with the constitution.
The court thus rejected Bliss's holding: "[The constitution] authorizes
him to bear them for the purposes of defending himself and the State,
and it is only when carried openly, that they can be efficiently used
for defence." (359) If the need for defense
were immediate, "there can be no necessity for concealing the weapon,"
and if it were not immediate, there were legal processes for securing
protection. If a defendant could prove that it was "indispensable to the
right of defence" for him to conceal his weapon, the court might construe
the statute not to apply, but Mr. Reid had not done so.
Eighteen years later, the same court in Owen
v. State reaffirmed Reid in recognizing
the constitutionality of a similar statute (the legislature, perhaps prompted
by Reid, had added an exception for those threatened with or
reasonably fearing attack). In so doing, the court made explicit what
had been implicit in Reid - that "carries" in the statute "was
used as the synonym of 'bears.'" (361)
Soon after Reid, the Supreme Court
of Georgia, in Nunn v. State, relied on Reid,
as well as Bliss, in unanimously reversing a conviction
for openly carrying a pistol. The court applied the Second Amendment,
holding "that so far as the act . . . seeks to suppress the practice of
carrying certain weapons secretly, . . . it is valid,
inasmuch as it does not deprive the citizen of his natural right
of self-defence, or of his constitutional right to keep and bear arms.
But that so much of it, as contains a prohibition against bearing arms
openly, is in conflict with the Constitution, and void."
(362) As had Reid, Nunn looked for guidance
to the right to have and use arms in England. The court viewed that right,
the right of the Second Amendment, and the rights protected by the States'
constitutions as all securing a personal right of individuals: "When,
I would ask, 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?" Likewise, "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." (363) This "right
of the people" was just as "comprehensive" and "valuable" as those in
the First, Fourth, Fifth, and Sixth Amendments.
Like Rawle and Story, the Nunn court
recognized the harmony between the Second Amendment's individual right
and its preface: "[O]ur 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." More broadly:
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. (365)
The preface's reference to the militia as "necessary to the security of
a free State" reinforced this understanding and helped convince the court
that the Amendment also restricted the States: "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?" The right lay "at the
bottom of every free government," state or federal.
(366) As had Rawle, the court in Nunn, by concluding
that the Amendment restricted the powers of the States, confirmed
its view that the Amendment did not protect the powers of the States but
rather protected the rights of their individual citizens.
Fifteen years later, the same court reported
that Nunn had "been constantly adhered to," and unanimously applied
it to reverse a jury instruction that, for a weapon to be carried openly,
it had to be entirely uncovered. Because such carrying was "impossible,"
such an interpretation "would . . . prohibit the bearing of those arms
The Louisiana Supreme Court took the same
view of the Second Amendment as an individual right in a series of cases
in the 1850's. In State v. Chandler, a murder
defendant had sought an instruction that carrying weapons "either concealed
or openly" could not be a crime consistent with the Constitution. The
court affirmed the denial of the instruction. Like Reid and Nunn,
the court saw no factual link between carrying weapons concealed and self-defense.
But, also like them, it viewed open carrying of arms differently: "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." (368)
Six years later, the court upheld a conviction for carrying a concealed
weapon, finding no Second Amendment violation because "[t]he arms there
spoken of are such as are borne by a people in war, or at least carried
openly." (369) And two years after that,
the same court cited these decisions in upholding another such conviction,
again treating the right as belonging to individuals and understanding
"carry" to be synonymous with "bear": "The statute in question . . . .
is a measure of police prohibiting only a particular mode of
bearing arms which is found dangerous to the peace of society."
Two other state-court cases of this later
antebellum period merit special mention. The first and more significant
is Aymette v. State,
(371) the second, State v. Buzzard.
(372) In both, the court's holding was unremarkable - that bans
on carrying weapons concealed were constitutional. But the courts' rationales
were novel. While still recognizing a right to keep and to bear arms that
belonged to individuals, these decisions sharply restricted the purposes
for which arms could be borne. Unlike Reid and Nunn,
neither case was cited until several years after the Civil War (and then
usually just for their holdings), but Aymette acquired some prominence
thereafter, and Buzzard is notable for one judge's separate opinion
somewhat foreshadowing the collective- and quasi-collective-right views.
In Aymette, the Tennessee Supreme
Court applied that State's 1834 Constitution, which provided "that the
free white men of this State have a right to keep and bear arms for their
common defence." (The only difference from the provision discussed in
Simpson was the change of "freemen" to "free white men."
(373)) In upholding the defendant's conviction for carrying
a concealed bowie knife, the court limited the state right to "bear arms"
to actions done "by the people in a body for their common defense."
(374) Some have relied on Aymette's reasoning in arguing
against the individual-right view of the Second Amendment. The Ninth Circuit
in Silveira, for example, overlooking all of the antebellum cases
discussed above, described Aymette as "the most significant judicial
decision to construe the term 'bear arms'" and as concluding that the
phrase "referred to the performance of a military function."
(375) Silveira particularly relied on Aymette's
statement that "'[a] man in pursuit of deer, elk and buffaloes might carry
his rifle every day for forty years, and yet it would never be said of
him that he had borne arms.'" (376) Fairly
read, however, Aymette does not contravene an individual-right
view of the Second Amendment.
First, even assuming for the sake of argument
that Aymette read the Tennessee Constitution not to secure any
individual right to bear arms, the decision has two distinctive features
that undermine its relevance to the Second Amendment. Aymette's
analysis rested heavily on the phrase "for their common defence" in the
Tennessee provision, which is absent from the Second Amendment. The phrase
pervades the court's brief analysis. The court defined "common" and even
described the right to arms in the English Bill of Rights as if it included
the word. (377) The court also relied
on a conscientious-objector clause that appeared elsewhere in the state
constitution, citing it at the end of its opinion, in criticizing Bliss,
to make "the case still more clear." (378)
Yet no conscientious-objector clause appears in the Second Amendment or
even the Constitution. (379)
Second, and more importantly, Aymette
does not reject an individual right either to keep or to bear arms, even
though it may exclude individual self-defense from the meaning of "bear."
The court was unequivocal on "keep": "The citizens have the unqualified
right to keep the weapon," so long as it is a protected "arm."
(380) It did describe "bear" as limited to "military use,"
(381) but by that appears still to have contemplated a right
that belonged to individuals rather than to the State or those engaged
in its service. (382) The court did not
mention the militia. Rather, the "military" bearing that it appears to
have had in mind was the people, in an extreme case of governmental tyranny,
independently bearing arms as a body to check the government. The court
confined "bear" to the most radical of emergencies. Thus, it provided
the following account of the English Revolution of 1688-1689:
[I]f the people had retained their arms, they would have been able,
by a just and proper resistance to those oppressive measures, either
to have caused the king to respect their rights, or surrender (as
he was eventually compelled to do) the government into other hands.
No private defence was contemplated, or would have availed anything.
. . . [The right in the English Declaration means] that they may as
a body rise up to defend their just rights, and compel their rulers
to respect the laws. . . . The complaint was against the government.
The grievances to which they were thus forced to submit were for the
most part of a public character, and could have been redressed only
by the people rising up for their common defence, to vindicate their
The court also wrote that the people "may keep arms to protect the public
liberty, to keep in awe those in power, and to maintain the supremacy
of the laws and the constitution." Citizens need to be prepared "to repel
any encroachments upon their rights by those in authority," and the right
"is a great political right. It respects the citizens, on the one hand,
and the rulers on the other." (384)
Subsequent treatment by the same court confirms
that Aymette, despite its narrow reading of "bear," still recognized
an individual right. In Andrews v. State, a
prominent case after the Civil War, the Tennessee Supreme Court interpreted
the right of the "citizens of this State . . . to keep and bear arms for
their common defense" under the State's 1870 constitution. It was not
until after Andrews that Aymette, previously uncited,
acquired any prominence. (385) The new
constitution had added an exception granting to "the Legislature . . .
power by law, to regulate the wearing of arms, with a view to prevent
crime," which had been prompted by an enduring dispute between partisans
of Aymette and Simpson. (386)
The statute at issue prohibited any public or private carrying
of "a dirk, swordcane, Spanish stiletto, belt or pocket pistol or revolver."
(387) Notwithstanding the added constitutional clause and the
arguable implications of Aymette, the court held it unconstitutional
as applied to certain revolvers. (388)
In reaching this holding, the court went
far to assimilate Aymette to the reasoning of Reid and
Nunn, even while technically retaining Aymette's view
of "bear." (389) It did so in three ways.
First, it expressly reaffirmed that at least the right to "keep" belonged
to individuals: The "right to bear 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."
(390) The court added, relying on Story, that it is "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." (391)
Second, Andrews read "keep" expansively
to include broad "incidental use," emphasizing that the goal of the right
was to ensure that "the citizens making up the yeomanry of the land, the
body of the militia," would be prepared when needed. Thus:
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 purpose, 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.
Because citizens needed to be able to "become familiar with" the use of
arms "in times of peace, that they may the more efficiently use them in
times of war, . . . the right to keep arms for this purpose
involves the right to practice their use." (392)
Use for "ordinary purposes" included a man taking his gun "from his room
into the street to shoot a rabid dog that threatened his child"
(393) and using them on one's property in lawful self-defense.
(394) Such reasoning is in large measure the same as that taken
by the traditional individual-right view in explaining the relation between
the Second Amendment's preface and operative text.
Third, consistently with its reading of "keep,"
the court also broadened "arms." Aymette had defined the word
to include only such arms "as are usually employed in civilized warfare,
and that constitute the ordinary military equipment."
(395) Andrews explained it as follows: "[T]he idea
of the Constitution is, the keeping and use of such arms as are useful
either in warfare, or in preparing the citizen for their use in warfare,
by training him as a citizen, to their use in times of peace."
(396) The court took judicial notice "that the rifle of all
descriptions, the shot gun, the musket, and repeater, are such arms."
Thus, setting aside any distinctions based
on the specific language of Tennessee's Constitution, the consequence
of Aymette, taken together with Andrews, is that "bear
arms" was defined more narrowly in those cases, and "keep arms" more broadly,
than was usual. The net result seems to be not far from the traditional
individual-right view held at the Founding and reflected in the great
weight of early authority.
The divided 1842 decision of the Arkansas
Supreme Court in Buzzard did not, even after the Civil War, ever
acquire the prominence of Aymette, and when cited it was simply
for its limited, uncontroversial holding, upholding a ban on carrying
weapons concealed. (398) Nevertheless,
coming four years before Nunn, it appears to have been the first
judicial holding involving the Second Amendment, and one judge's concurring
opinion was the first appearance of something suggesting a collective-right
or quasi-collective-right view.
The reasoning of the leading opinion for
the 2-1 court was similar to that of Aymette. The court addressed
both the Second Amendment and the 1836 Arkansas Constitution, which, like
Tennessee's, provided that "the free white men of this State shall have
a right to keep and bear arms for their common defense."
(399) Despite the textual differences between these two provisions
(in particular the Arkansas provision's "for their common defense" language),
the court treated them as the same. (400)
Much like Aymette, albeit without distinguishing between "keep"
and "bear," the court apparently recognized a right of individuals but
gave it a limited scope. (401) The Arkansas
court's post-war decisions confirmed that the right secured by the Arkansas
Constitution belonged to individuals and included the right to bear arms
for at least some private purposes. (402)
The concurring opinion cited no history or
authority and, as far as we are aware, no court or even judge has ever
cited it in interpreting a right to bear arms, whether secured by the
Second Amendment or by any of the analogous provisions in state constitutions.
(403) It did not present what would now be considered a standard
collective-right or quasi-collective-right view. Whereas those views address
the limits of federal power to interfere with state law, Judge Dickinson
addressed the case from the opposite vantage point, stating the question
as whether the State's ban on carrying weapons concealed "interfere[s]
with any regulations made by Congress, as to the organizing, arming, or
disciplining the militia, or in the manner in which that militia are either
to keep or bear their arms." (404) In
modern terminology, the judge seemed to recast the case as turning on
possible federal pre-emption of the state law. The Second Amendment, in
setting out what he described as "the power given the militia to keep
and bear arms," merely rephrased the express federal powers in Article
I, Section 8, Clause 16 of the Constitution, the Amendment being "but
an assertion of that general right of sovereignty belonging to independent
nations to regulate their military force." (405)
The Amendment thus did not add any protection of state powers.
That protection was implicit in Clause 16: "[T]he States retain the
power to legislate in relation to arms and the mode of carrying and
keeping them, provided its exercise is not repugnant to the previous grant
to the Federal Government. . . . Could Congress authorize any and every
person by express law, to carry deadly weapons concealed about his person,
when not composing one of the militia, and not a part of the regulations
ordained for their government?" (406)
The dissenting opinion employed the general rule for interpreting prefaces
(discussed above in Part II.C.1), and the same reasoning as Rawle, Story,
and Nunn, to explain the relation of the Amendment's preface
to the right: "Now, I take the expressions 'a well regulated militia being
necessary for the security of a free State,' and the terms 'common defense,'
to be the reasons assigned for the granting of the right, and not a restriction
or limitation upon the right itself . . . . [W]hen was it contended before
that the reason given for the establishment of a right or its uninterrupted
enjoyment not only limited the right itself, but restrained it to a single
specific object?" (407) Judge Lacy also
pointed to the Second Amendment's reference to a "free State": "To suppose
that liberty cannot be in danger, except from a foreign foe or internal
disorder, is virtually to deny the importance and necessity of written
constitutions. . . . I cannot separate the political freedom of the State
from the personal rights of its citizens." (408)
He singled out the concurring opinion for granting the right to "the militia
alone," and only at "the discretion of the Legislature" - a right "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. . . . [W]hy
give that which is no right in itself and guarantees a privilege that
is useless?" (409) Finally, the dissent
explained the right much as Blackstone had, tying it to self-defense and
pointing out that it was no more unlimited than the freedoms of speech
and press. (410)
In sum, the activity of courts closest to
the Founding tends to reinforce what the text and history establish -
that the right secured by the Second Amendment belongs to individuals.
No court questioned the private right to keep arms, and most recognized
the traditional individual right to bear them. Two of the three state
supreme courts to apply the Second Amendment (Georgia and Louisiana) repeatedly
recognized a private right to bear arms for self-defense. The two cases
taking the narrowest view of the right (both in States whose constitutions
had "common defense" clauses in their right) were ignored, and even they
recognized some manner of individual right. Only in an opinion of a single
judge, which was and has continued to be ignored, did something like a
quasi-collective- or collective-right understanding appear, but even that
opinion did not view the Second Amendment as securing any right of States
or of state (as opposed to federal) militias. On balance, then, the cases
before the Civil War, like the first commentators, confirm that the text
and history of the Second Amendment support the individual-right view,
not the collective-right or quasi-collective-right views.
As the Civil War ended in 1865, southern
governments enacted "black codes," which, among other things, either directly
prohibited the newly freed slaves from keeping and bearing arms or imposed
stringent permit systems. In addition, armed white mobs, sometimes including
the militias, frequently disarmed the freed blacks.
(411) Such practices, coupled with blacks' lack of citizenship,
prompted the Thirty-Ninth Congress to take several actions securing the
rights of the newly freed slaves and reaffirming the understanding that
the right to keep and bear arms was a personal right.
The first action was enactment of the Civil
Rights Act of 1866. One goal of many who sought its passage, noted by
them and lamented by their opponents, appears to have been to secure to
freedmen the Second Amendment's right to keep and bear arms. Both representatives
and senators highlighted disarmament of blacks and argued that the Act,
by making blacks citizens, would secure to them that right. Senator Trumbull,
Chairman of the Judiciary Committee and a sponsor of the Act, explained
that it would counteract those portions of the black codes that "prohibit
any negro or mulatto from having fire-arms." (412)
In the House, Representative Clarke quoted the Second Amendment and declared,
"I shall insist that the reconstructed rebels of Mississippi respect the
Constitution in their local laws"; he also decried that newly formed southern
governments had been "allowed to rob and disarm our [black] veteran soldiers."
Representative Raymond argued, in favor of the Act, that making blacks
citizens would give to them "every right which you or I have," including
"a right to bear arms." (413)
The second congressional action was passage
of the Fourteenth Amendment in June 1866. Senator Pomeroy, in addressing
an early draft, listed as among the "safeguards of liberty . . . under
our Constitution" the right of "the freedman" to "bear arms for the defense
of himself and family and his homestead," even suggesting that Congress's
power to enforce the Thirteenth Amendment's ban on slavery might justify
it in protecting this right in the South. (414)
One of the Fourteenth Amendment's sponsors, in listing the rights of citizenship
that its Privileges or Immunities Clause would extend to blacks, pointed
to "the personal rights guaranteed and secured by the first eight amendments
of the Constitution; such as the freedom of speech and of the press; .
. . [and] the right to keep and to bear arms."
(415) The New York Times and other leading newspapers
reprinted these comments, including the reference to the Second Amendment,
and praised them. (416)
This history indicates that it was widely
recognized that the right to keep and bear arms was to be protected by
the Civil Rights Act and the Fourteenth Amendment, and that that right
was understood to belong to individuals. For example, Raoul Berger, even
while arguing against the view that the Fourteenth Amendment "incorporated"
the Bill of Rights to apply to the States, explains that "all are agreed"
that the Fourteenth Amendment aimed at least "to embody and protect" the
Civil Rights Act of 1866; he contends that the Act, in turn, "intended
to confer on the freedmen the auxiliary rights that would protect their
'life, liberty, and property' - no more." He quotes Blackstone's listing
of these three principal rights and demonstrates Blackstone's prominence
in the debates and in the denunciations of the black codes.
(417) As explained above in Part III.A, Blackstone described
five "auxiliary rights," and the right of individuals to have and use
arms for their defense was one of them. Given the language of Section
1 of the Civil Rights Act, it may be that States simply could not discriminate
against blacks in the right to keep and bear arms, not that the Second
Amendment applied per se, but the point remains that there was a consensus
that the right in question belonged to individuals and was a right against
the state. (418)
Were there any remaining doubt on this question,
Congress eliminated it a month after approving the Fourteenth Amendment,
when it renewed the Freedmen's Bureau over President Andrew Johnson's
veto. The act provided that wherever the courts were not open, or in any
State that had not been restored to the Union, various rights, largely
paralleling those in the Civil Rights Act, should "be secured to and enjoyed
by all the citizens . . . without respect to race or color, or previous
condition of slavery." Among these were "the right . . . 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." (419) The Congress thus not
only enacted the understanding that the Second Amendment protected an
individual right, including the right to "bear" arms, but also did so
in a way that rested on Blackstone's exposition of the individual right
to arms as a critical auxiliary to the three primary individual rights
of life, liberty, and property.
Congress took the same view early in the
following year, demonstrating not only its understanding that the right
belonged to individuals but also the limited, indirect way in which it
protected the States' militias. Responding to the southern militias' depredations
against the freed blacks, Congress included in a bill, which the President
signed, a provision "[t]hat all militia forces now organized or in service"
in the States of the former Confederacy "be forthwith disbanded, and that
the further organization, arming, or calling into service of the said
militia forces, or any part thereof, is hereby prohibited."
(420) Significantly, the bill's sponsor had agreed to strike
"disarmed" after "disbanded," in the face of opposition from several (northern)
senators that to disarm the citizens from whom the militia was drawn,
rather than merely disbanding the militias, would violate the Second Amendment.
(421) Congress's actions both in disbanding the southern States'
militias and in not disarming their citizens show that it understood the
Second Amendment right to protect individuals, not States or their militias.
(422) Thus, from the Founding through the Civil War, the overwhelming
understanding of the right of the people to keep and bear arms was that
it was a right that belonged to individuals.
D. Beyond Reconstruction
As already suggested by our discussions above
of Andrews and cases citing Buzzard, the understanding
of the right to keep and bear arms as an individual right continued beyond
the Civil War and Reconstruction. Although we do not provide an exhaustive
survey of the post-war period, we find it significant that the modern
alternative views of the right did not take hold until the twentieth century,
well over a century after the Second Amendment was ratified. Before that,
the views of the leading constitutional-law scholar of the period, Thomas
Cooley, were in accord with his predecessors Tucker, Rawle, and Story,
in recognizing an individual right. And the Supreme Court, although making
no holding regarding the substance of the Amendment, suggested in dicta
that it protected an individual right.
Cooley's General Principles of Constitutional
Law, first published in 1880, gained a prominence on the
level of the works of his predecessors. (423)
As had the antebellum commentators, he espoused the individual-right view
of the Second Amendment. After quoting the Amendment, noting that it was
a "modification and enlargement from the English Bill of Rights," and
citing Tucker, Cooley added the following:
The Right is General. - It might
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. . . . [I]f
the right were limited to those enrolled [in the militia, a number
that the government could constrict], 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.
Cooley's rejection of any collective-right and quasi-collective-right view
is consistent with the understanding of the Amendment's prefatory clause
that is evident from the Founding and had been reiterated before the Civil
War by Rawle, Story, and Nunn. Even Cooley's heading echoed Rawle's
statement over fifty years earlier: "The prohibition is general."
(425) Cooley likewise treated both keeping and bearing
as private rights of citizens, and recognized that the right has limitations
("the laws of public order"), just as any other individual right does.
(426) Conversely, in discussing the Militia Clauses of Article
I, Section 8, in a separate part of his treatise, he made no mention of
the Second Amendment. (427)
Cooley reiterated this individual-right
interpretation in his even more celebrated Treatise on the Constitutional
Limitations, first published in 1868. (428)
Among the clauses common in state constitutions, he explained, were "[t]hose
declaratory of the fundamental rights of the citizen," among which were
freedom of speech and of the press and "that every man may bear arms for
the defence of himself and the State." (429)
In a later chapter he included the right among the "the constitutional
protections to personal liberty": "Among the other defences to personal
liberty should be mentioned the right of the people to keep and bear arms."
He explained the right's English origins, noted the importance for a "well-regulated
militia" of "the people" being "trained to bearing arms," praised the
lack of legislation "regulat[ing] this right," and cited Bliss,
Nunn, and a case concerning the right of self-defense.
(430) Finally, in elsewhere explaining the scope of a State's
concurrent power to organize and discipline the militia, Cooley simply
cited Houston v. Moore, not mentioning the
Second Amendment. (431) Like the Court,
he apparently did not see the Amendment as relevant to the scope of the
State's power to maintain a militia.
The Supreme Court did not address the substance
of the Second Amendment during this period, because of its view that the
Bill of Rights, including the Second Amendment, did not apply to the States.
(432) In Robertson v. Baldwin, however,
the Court invoked the history of, and limitations on, the various rights
in the Bill of Rights, including the Second Amendment, to illustrate and
defend a holding regarding the limitations on the Thirteenth Amendment's
ban on slavery:
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. In incorporating these principles into the fundamental
law there was no intention of disregarding the exceptions, which continued
to be recognized as if they had been formally expressed. Thus, the
freedom of speech and of the press (art. 1) does not permit the publication
of libels, blasphemous or indecent articles, or other publications
injurious to public morals or private reputation; [and] the right
of the people to keep and bear arms (art. 2) is not infringed by laws
prohibiting the carrying of concealed weapons . . . .
The Court added similar illustrations from the Fifth and Sixth Amendments.
The Court thus suggested that the Second Amendment protected an individual
right, both by treating it in parallel with the individual rights in the
rest of the Bill of Rights and by pointing to the right's English origins.
Not until 1905 was a view rejecting the individual-right
view truly born, and then in a decision interpreting not the Second Amendment
but rather a provision in a state constitution. In City of Salina
v. Blaksley, the Kansas Supreme Court held that a clause
in the Kansas Bill of Rights, providing that "'[t]he people have the right
to bear arms for their defence and security,'" referred only "to the people
as a collective body" and dealt "exclusively with the military. Individual
rights are not considered in this section." Rather, the "people shall
exercise this right" through the power of their legislature,
set out in the body of the state constitution, to organize, equip, and
discipline the militia. The right extended "only to the right to bear
arms as a member of the state militia, or some other military organization
provided for by law." (434) The court
seems to have been influenced by a provision in the state constitution
admonishing against standing armies in time of peace, and praising civilian
control of the military, that immediately followed the text of the right.
(435) The court also, without citing historical authority and
with little explanation, pointed to the Second Amendment as analogous
and reinforcing its reading. (436) Salina's
novelty was not missed. One state supreme court soon after, in a survey
reaching back to Bliss, Reid, Nunn, and Aymette,
described Salina as having gone "further than any other case"
by holding that the right to bear arms in the Kansas Constitution imposed
no limit on the legislature's power to prohibit private individuals from
carrying arms. (437)
For the foregoing reasons, we conclude that
the Second Amendment secures an individual right to keep and to bear arms.
Current case law leaves open and unsettled the question of whose right
is secured by the Amendment. Although we do not address the scope of the
right, our examination of the original meaning of the Amendment provides
extensive reasons to conclude that the Second Amendment secures an individual
right, and no persuasive basis for either the collective-right or quasi-collective-right
views. The text of the Amendment's operative clause, setting out a "right
of the people to keep and bear Arms," is clear and is reinforced by the
Constitution's structure. The Amendment's prefatory clause, properly understood,
is fully consistent with this interpretation. The broader history of the
Anglo-American right of individuals to have and use arms, from England's
Revolution of 1688-1689 to the ratification of the Second Amendment a
hundred years later, leads to the same conclusion. Finally, the first
hundred years of interpretations of the Amendment, and especially the
commentaries and case law in the pre-Civil War period closest to the Amendment's
ratification, confirm what the text and history of the Second Amendment
Please let us know if we may provide further
Steven G. Bradbury
Principal Deputy Assistant Attorney General
Howard C. Nielson, Jr.
Deputy Assistant Attorney General
C. Kevin Marshall
Acting Deputy Assistant Attorney General
1 See, e.g., United
States v. Emerson, 270 F.3d 203, 220, 260 (5th
2 See, e.g., Silveira
v. Lockyer, 312 F.3d 1052, 1060-61, 1086-87 (9th Cir.
2002), cert. denied, 124 S. Ct. 803 (2003).
3 Emerson, 270 F.3d at 219 (describing
intermediate view); see also, e.g., Cases v.
United States, 131 F.2d 916, 923 (1st Cir. 1942).
4 See, e.g., United
States v. Parker, 362 F.3d 1279, 1283 (10th Cir.
5 Memorandum for United States Attorneys
from the Attorney General, Re: United States v.
Emerson (Nov. 9, 2001) (quoting Emerson, 270 F.3d at
260), reprinted in Brief for the United States in Opposition,
app., Emerson v. United States, 536 U.S. 907
(2002) (denying certiorari). You added that the Department of Justice
"can and will continue to defend vigorously the constitutionality, under
the Second Amendment, of all existing federal firearms laws."
6 307 U.S. 174 (1939).
7 Ch. 757, 48 Stat. 1236.
8 See National Firearms Act: Hearings
on H.R. 9066 Before the House Comm. on Ways and Means, 73d
Cong. 90 (1934) (statement of Ass't Atty. Gen. Keenan); United States
v. Lopez, 2 F.3d 1342, 1348 (5th Cir. 1993), aff'd,
514 U.S. 549 (1995).
9 307 U.S. at 175-77.
10 Id. at 178 (citing Aymette
v. State, 21 Tenn. (2 Hum.) 154, 158 (1840)). We discuss
Aymette below in Part IV.B.2.
12 Id. at 179; see id.
at 179-82 (describing militia regulations, including arms requirements).
13 See below, Parts II.C (discussing
Second Amendment's preface), III.B-C (discussing Founders' recognition
that the individual right to arms furthered the citizen militia), IV.A
(discussing early commentators), IV.B.2 (discussing early cases), IV.D
(discussing views of Thomas Cooley soon after Civil War).
14 Later opinions of the Supreme Court
appear to accept the individual-right view, at least in dicta,
although none is dispositive. In Johnson v. Eisentrager,
339 U.S. 763 (1950), the Court rejected a claim that the Fifth Amendment's
criminal-procedure protections applied to nonresident enemy aliens by
pointing out, among other things, that a contrary view would require also
applying the "companion civil-rights Amendments" in the Bill of Rights,
including the Second Amendment. Id. at 784 ("[D]uring military
occupation irreconcilable enemy elements, guerrilla fighters, and 'werewolves'
could require the American Judiciary to assure them freedoms of speech,
press, and assembly as in the First Amendment, right to bear arms as in
the Second, security against 'unreasonable' searches and seizures as in
the Fourth, as well as rights to jury trial as in the Fifth and Sixth
Amendments."). In Konigsberg v. State Bar of Cal.,
366 U.S. 36 (1961), the Court, citing Miller, again equated the
Second Amendment right with the rights secured by the First Amendment.
Id. at 49 n.10. More recent cases have assumed an individual
right in dicta by listing the Second Amendment right among the
personal rights composing the "liberty" that the Constitution's due-process
provisions protect. See Planned Parenthood v. Casey,
505 U.S. 833, 847 (1992); Moore v. City of East
Cleveland, 431 U.S. 494, 502 (1977) (plurality opinion) (quoting
Poe v. Ullman, 367 U.S. 497, 542-43 (1961)
(Harlan, J., dissenting)); id. at 542 (White, J., dissenting)
(same as plurality). But see Adams v. Williams,
407 U.S. 143, 150 (1972) (Douglas, J., dissenting) ("A powerful lobby
dins into the ears of our citizenry that these gun purchases are constitutional
rights protected by the Second Amendment," but "[t]here is no reason why
all pistols should not be barred to everyone except the police."). The
Court in Lewis v. United States, 445 U.S. 65 (1980),
rejected an equal-protection challenge to a prohibition against felons
possessing firearms. In a one-sentence footnote explaining why it was
applying rational-basis review, the Court stated that such a prohibition
is not "based upon constitutionally suspect criteria" and does not "trench
upon any constitutionally protected liberties." Id. at 65 n.8.
Although this language is consistent with the view that the Second Amendment
does not secure a right of individuals, it is also consistent with the
traditional understanding of the individual-right view that the liberty
protected by the Second Amendment does not extend to convicted felons.
See infra notes 19 & 29, and the discussions referenced therein.
15 131 F.2d 916, 922 (1st Cir. 1942).
16 Id. at 923.
17 131 F.2d 261, 266 (3d Cir. 1942), rev'd
on other grounds, 319 U.S. 463 (1943).
18 Id. The same ground appears
to have been available in Cases. See Cases,
131 F.2d at 919 n.1.
19 Regarding violent felons, although
the case involved possession, the court relied on authority for regulating
the bearing of arms (banning carrying weapons concealed or to
the terror of the people). For more on-point authority, see proposals
made during the ratifying conventions, discussed below in Part III.C.1,
and Emerson, 270 F.3d at 226 n.21; cf. Lewis,
445 U.S. at 65 n.8 (rejecting equal-protection challenge to prohibition
of felon possessing a firearm); Richardson v. Ramirez,
418 U.S. 24, 53-55 (1974) (holding constitutional the disenfranchisement
of convicted felons who had completed their sentences and paroles).
20 131 F.2d at 266. The court cited some
history from the Founding Era, which we address in Part III.C.1.
21 We have not conducted a review of the
Government's litigating positions in the numerous firearms cases since
Miller. In its brief in Miller, the Government made
two alternative arguments. The first was consistent with a quasi-collective-right
view. See Brief for United States at 9-18, United States
v. Miller, 307 U.S. 174 (1939) (No. 696). The second (which the Court
adopted) was consistent with either a quasi-collective- or individual-right
view. See id. at 18-20. Its present litigating position appears
to be consistent with your 2001 memorandum to U.S. Attorneys endorsing
the individual-right view. See, e.g., United States
v. Lippman, 369 F.3d 1039, 1045 (8th Cir. 2004) (Colloton,
J., concurring in part and concurring in the judgment).
22 Property Requisition Act, ch. 445,
1, 55 Stat. 742, 742.
23 Memorandum for Lawrence E. Walsh, Deputy
Attorney General, from Paul A. Sweeney, Acting Assistant Attorney General,
Office of Legal Counsel, Re: H.R. 232, 86th Cong., 1st Sess.,
a bill "To provide for the securing of custody and disposition by the
United States of missiles, rockets, earth satellites, and similar devices
adaptable to military uses, and for other purposes," at
1-2 (Apr. 9, 1959) (emphasis added).
24 See Memorandum for Byron R.
White, Deputy Attorney General, from Nicholas deB. Katzenbach, Assistant
Attorney General, Office of Legal Counsel, Re: H.R. 2057,
a bill to provide for the securing of custody and disposition by the United
States of missiles, rockets, earth satellites, and similar devices adaptable
to military use (May 8, 1961); Memorandum for White, from Katzenbach,
Re: Proposed report of the Department of Defense on H.R.
2057 "To provide for the securing of custody and disposition by the United
States of missiles, rockets, earth satellites and similar devices adaptable
to Military uses, and for other purposes," at 1 (Mar. 22,
25 See Federal Firearms Act: Hearings
Before the Subcomm. to Investigative Juvenile Delinquency of the Senate
Comm. on the Judiciary, 89th Cong. 40-41 (1965) (statement of Attorney
General Katzenbach). For subsequent treatment of the Second Amendment,
see, e.g., Memorandum for Richard G. Kleindienst, Deputy Attorney
General, from William H. Rehnquist, Assistant Attorney General, Office
of Legal Counsel, Re: Proposed "Federal Gun Registration and Licensing
Act of 1969" (Feb. 19, 1969) (in one-sentence discussion, citing
Miller and Tot to find no "serious legal obstacle" under
Amendment to proposal for federal registration of firearms and limited
federal licensing); Memorandum for D. Lowell Jensen, Assistant Attorney
General, Criminal Division, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Proposed Legislation Relating
to Firearms and to Mandatory Sentencing, at 2 (May 27, 1981) (citing
Miller as basis for "perceiv[ing] no basis for suggesting that
the [1968 Gun Control] Act so interferes with the powers of the States
to raise militias as to transgress the Second Amendment"); Firearm Owners'
Protection Act, Pub. L. No. 99-308, 1(b), 100 Stat. 449, 449 (1986),
18 U.S.C. 921 note (2000) (law signed by President Reagan that recognized
"the right[ ] of citizens . . . to keep and bear arms under
the second amendment.").
26 Pub. L. No. 90-351, 82 Stat. 197.
27 See, e.g., Love
v. Pepersack, 47 F.3d 120, 122-24 (4th Cir. 1995); United
States v. Warin, 530 F.2d 103, 105-07, 108 (6th
Cir. 1976) (dismissing "the erroneous supposition that the Second Amendment
is concerned with the rights of individuals rather than those of the States"
and rejecting claim involving gun admittedly bearing reasonable relationship
to preservation or efficiency of the army); Gillespie v.
City of Indianapolis, 185 F.3d 693, 710-11 (7th Cir. 1999); Hickman
v. Block, 81 F.3d 98, 99-102 (9th Cir. 1996). The Third
Circuit's present position is at least the quasi-collective-right view,
if not the collective-right view. See United States
v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996).
28 See, e.g., United
States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir.
1992); United States v. Oakes, 564 F.2d 384,
387 (10th Cir. 1977); United States v. Wright,
117 F.3d 1265, 1272-74 (11th Cir. 1997), vacated in part on other
grounds, 133 F.3d 1412 (1998). These courts make clear that the right
under the quasi-collective-right view protects only members of organized
militia units such as the National Guard, not members of the "militia"
defined more broadly. Oakes, for example, rejected a claim based
on the defendant's membership in the Kansas militia, which consisted of
all able-bodied men between twenty-one and forty-five. 564 F.2d at 387;
see also Wright, 117 F.3d at 1271-74 (similar); Hale,
978 F.2d at 1020 (similar); Warin, 530 F.2d at 105, 106, 108
29 See, e.g., United States
v. Baer, 235 F.3d 561, 564 (10th Cir. 2000); Gillespie,
185 F.3d at 710-11; Marchese v. California,
545 F.2d 645, 646 (9th Cir. 1976); United States v.
Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (per curiam);
Cody v. United States, 460 F.2d 34, 35-37 (8th
Cir. 1972); Stevens v. United States, 440 F.2d
144, 149 (6th Cir. 1971); United States v. Synnes,
438 F.2d 764, 766 (8th Cir. 1971), vacated on other grounds,
404 U.S. 1009 (1972). Courts have recognized that such holdings could
be consistent with an individual-right view. See United States
v. Price, 328 F.3d 958, 961 (7th Cir. 2003); supra
note 19 (discussing Tot); cf. Emerson, 270
F.3d at 261 (upholding prohibition on possession of firearm by person
subject to domestic-violence restraining order by concluding that Amendment
protected an individual right but finding no violation); Lippman,
369 F.3d at 1044-45 (Colloton, J.) (similar).
30 See Hickman, 81
F.3d at 99-103; Thomas v. Members of City Council
of Portland, 730 F.2d 41, 42 (1st Cir. 1984) (per curiam).
Courts have recognized that such holdings also could be consistent with
an individual-right view. See Parker, 362 F.3d at 1285-86
(Kelly, J., concurring) (arguing for upholding conviction on narrower
ground that case involved reasonable restriction on concealed weapons,
and criticizing circuit courts, in interpreting Second Amendment, for
ignoring "the universal admonition to decide constitutional issues narrowly");
Part IV.B.2, below (discussing cases recognizing individual right but
rejecting right to carry concealed weapons).
31 Silveira, 312 F.3d at 1063-64
32 For a symposium of articles spanning
the views, see The Second Amendment Today: Historical and
Contemporary Perspectives on the Constitutionality of Firearms Regulation,
29 N. Ky. L. Rev. 643 (2002), and for articles critical of the individual-right
view, see Symposium on the Second Amendment: Fresh Looks,
76 Chi.-Kent L. Rev. 3 (2000). See also, e.g., Garry Wills, A
Necessary Evil: A History of American Distrust of Government 207-21,
256-60 (1999); Andrew D. Herz, Gun Crazy: Constitutional False Consciousness
and Dereliction of Dialogic Responsibility, 75 B.U. L. Rev. 57 (1995);
Richard M. Aborn, Essay, The Battle Over the Brady Bill and the Future
of Gun Control Advocacy, 22 Fordham Urb. L.J. 417 (1995); Carl T.
Bogus, Essay, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365
(1993); Dennis A. Henigan, Arms, Anarchy and the Second Amendment,
26 Val. U. L. Rev. 107 (1991); Wendy Brown, Comment, Guns, Cowboys,
Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The
Embarrassing Second Amendment, 99 Yale L.J. 661 (1989); 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 (1989); Samuel Fields, Guns, Crime and the Negligent Gun Owner,
10 N. Ky. L. Rev. 141 (1982); Warren Spannaus, State Firearms Regulation
and the Second Amendment, 6 Hamline L. Rev. 383 (1983); cf.
David Yassky, The Second Amendment: Structure, History, and Constitutional
Change, 99 Mich. L. Rev. 588 (2000); David C. Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment,
101 Yale L.J. 551, 554-55 (1991).
33 See, e.g., Laurence
H. Tribe, 1 American Constitutional Law 900 & 902 n.221 (3d
ed. 2000); Nelson Lund, The Ends of Second Amendment Jurisprudence:
Firearms Disabilities and Domestic Violence Restraining Orders, 4
Tex. Rev. L. & Pol. 157 (1999); Leonard W. Levy, Origins of the
Bill of Rights 134 (1999); Ronald S. Resnick, Private Arms as
the Palladium of Liberty: The Meaning of the Second Amendment, 77
U. Det. Mercy L. Rev. 1 (1999); Brannon P. Denning, Gun Shy: The Second
Amendment as an "Underenforced Constitutional Norm," 21 Harv. J.L.
& Pub. Pol'y 719 (1998); L.A. Powe, Jr., Guns, Words, and Constitutional
Interpretation, 38 Wm. & Mary L. Rev. 1311 (1997); Nelson
Lund, The Past and Future of the Individual's Right to Arms,
31 Ga. L. Rev. 1 (1996); Randy E. Barnett & Don B. Kates, Under
Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139
(1996); Glenn Harlan Reynolds & Don B. Kates, The Second Amendment
and States' Rights: A Thought Experiment, 36 Wm. & Mary L. Rev.
1737 (1995); David B. Kopel, It Isn't About Duck Hunting: The British
Origin of the Right to Arms, 93 Mich. L. Rev. 1333, 1355 (1995);
William Van Alstyne, Essay, The Second Amendment and the Personal
Right to Arms, 43 Duke L.J. 1236; Joyce Lee Malcolm, To Keep
and Bear Arms: The Origins of an Anglo-American Right (1994); Clayton
E. Cramer, For the Defense of Themselves and the State: The Original
Intent and Judicial Interpretation of the Right to Keep and Bear Arms
(1994); Akhil Reed Amar, The Bill of Rights as a Constitution,
100 Yale L.J. 1131, 1162-68 (1991); Robert J. Cottrol & Raymond T.
Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration,
80 Geo. L.J. 309 (1991); Sanford Levinson, Comment, The Embarrassing
Second Amendment, 99 Yale L.J. 637 (1989); Nelson Lund, The Second
Amendment, Political Liberty, and the Right to Self-Preservation,
39 Ala. L. Rev. 103 (1987); David T. Hardy, Armed Citizens, Citizen
Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv. J.L.
& Pub. Pol'y 559 (1986); Don B. Kates, Jr., The Second Amendment:
A Dialogue, 49 Law & Contemp. Probs. 143 (Winter 1986); Stephen
P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional
Right (1984); Don B. Kates, Jr., Handgun Prohibition and the
Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983);
see also Printz v. United States,
521 U.S. 898, 938 n.2 (1997) (Thomas., J., concurring) (noting "growing
body of scholarly commentary indicat[ing] that the [right]" is a personal
one); Emerson, 270 F.3d at 220 (similar).
34 270 F.3d at 227-60.
35 312 F.3d at 1060-87.
36 Silveira v. Lockyer,
328 F.3d 567, 570 (9th Cir.) (Kleinfeld, J., joined by Kozinski, O'Scannlain,
and T.G. Nelson, JJ., dissenting from denial of rehearing en banc),
cert. denied, 124 S. Ct. 803 (2003); see 328 F.3d at
568 (Pregerson, J., same); id. at 568 (Kozinski, J., same); id.
at 592 (Gould, J., joined by Kozinski, J., same). For other recent opinions
of Ninth Circuit judges endorsing the individual-right view and criticizing
Silveira, see Nordyke, 319 F.3d at 1195 (Gould, J.,
concurring); Nordyke v. King, 364 F.3d 1025, 1025 (9th Cir. 2004)
(Kleinfeld, J., dissenting from denial of rehearing en banc);
id. at 1026 (Gould, J., joined by O'Scannlain, Kleinfeld, Tallman,
and Bea, JJ., same).
37 For example, Article II of the Articles
of Confederation, drafted a decade before the Constitution, reserved to
each State "every power, jurisdiction, and right" not expressly delegated
to the federal Government.
38 In addition, the Copyright and Patent
Clause authorizes Congress to grant an "exclusive Right" to authors and
inventors for a limited time. U.S. Const. art. I, 8, cl. 8.
39 See., e.g., U.S. Const. art.
I, 1; art. I, 8; art. II, 1; art. III, 1; amend. X.
40 United States v. Verdugo-Urquidez,
494 U.S. 259, 265 (1990); see also id. at 279 (Stevens, J., concurring
in judgment) ("aliens who are lawfully present in the United States are
among those 'people' who are entitled to the protection of the Bill of
Rights, including the Fourth Amendment"); id. at 287-88 (Brennan,
J., dissenting) (similar; contending that "'the people'" is broader than
"'citizens,' 'freemen,' 'residents,' or 'the American people.'"). The
Ninth Circuit in Silveira did not discuss the "right of the people"
in the Second Amendment, and it disregarded Verdugo-Urquidez
except to cite its analysis of "the people" as an analogy in support of
its own reading of "Militia." See 312 F.3d at 1069-70 & n.25,
1071 & n.27. While recognizing that "[t]he question . . . is not whether
arms may be kept, but by whom and for what purpose," id. at 1074,
the court in Silveira did not consider that the "who[ ]" might
be "the people" to whom the Second Amendment's text - like that of the
First, Fourth, and Ninth - expressly gives the right.
41 Thomas M. Cooley, The General Principles
of Constitutional Law in the United States of America 267-68 (1880;
reprint 2000) (emphasis added).
42 Of course the "people" might choose
to exercise those individual rights in groups rather than alone, as in
the First Amendment right to assemble and petition, but that does not
make their rights "collective" or quasi-collective in the sense of depending
on the will or actions of a State or on one's service to it.
43 U.S. Const. art. I, 8, cls. 15-16;
art. II, 2, cl. 1.
44 The last quotation is from the Constitutional
Convention's resolution transmitting the proposed Constitution to the
Congress. 2 The Records of the Federal Convention of 1787, at
665 (Max Farrand ed., rev. ed. 1966). This distinction between the "people"
and the government is why the Founders insisted that the Constitution
be ratified by popularly elected special conventions rather than by the
state governments, to ensure its supremacy over those governments. See
The Federalist No. 39, at 253-54 (J. Madison) (Jacob E.
Cooke, ed. 1961); James Madison, Notes of Debates in the Federal Convention
of 1787, at 70 (1987) (remarks of Madison, June 5); id.
at 348-49 (remarks of George Mason and Edmund Randolph, July 23); id.
at 352-53 (remarks of Madison).
45 Those who reject the individual-right
view tend to neglect "keep" or to treat it as redundant with "bear." In
Silveira, the court found it "not clear" why the word "was included
in the amendment" and concluded by summarizing the Amendment as merely
protecting a right to "'bear arms'" in conjunction with militia service.
312 F.3d at 1074, 1086. See also Michael C. Dorf, What Does
the Second Amendment Mean Today?, 76 Chi.-Kent L. Rev. 291, 317 (2000)
(contending without citation that "keep and bear" is "a unitary phrase,"
with "keep" adding nothing to "bear," but admitting possibility that "the
plain meaning of 'keep' would have been sufficient to connote an individual
right"); H. Richard Uviller & William G. Merkel, The Second Amendment
in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L.
Rev. 403, 424-25, 508, 549-50, 593 (2000) (similar).
46 2 Strange Rep. 1098, 1098 (applying
5 Ann., c. 14 (1706)); see Rex v. Gardner,
87 Eng. Rep. 1240, 7 Mod. Rep. 279 (K.B. 1739) (apparently later case,
but similar); id. at 1241 (defendant, arguing that "to charge
only that he kept a gun is improper, for it includes every man that keeps
a gun," and that guns are kept "for the defence of a man's house"); id.
(Lee, C.J.) (words of statute "do not extend to prohibit a man from keeping
a gun for his necessary defence"); id. (Probyn, J.) ("farmers
are generally obliged to keep a gun, and are no more within the Act for
doing so than they are for keeping a cabbage-net").
47 Mallock v. Eastly,
87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).
48 Wingfield v. Stratford,
96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).
49 King v. Silcot,
87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted) (interpreting
33 Hen. VIII, c. 6 (1541), and quashing indictment because it did not
specifically allege that defendant's income was insufficient when he kept
50 4 Blackstone at *182. The qualification
to which Blackstone refers is a wealth requirement tied to the game laws,
see id. at *174-75, which we discuss in Part
III.A, below, and elsewhere. Regarding Blackstone's influence and authority,
see, e.g., Madison, Notes of Debates at 547 (remarks
of Dickenson, Aug. 29); Federalist No. 69, at 465 n.* (A. Hamilton)
& No. 84, at 577 (Hamilton); Malcolm, To Keep
and Bear at 130; Schick v. United States, 195 U.S.
65, 69 (1904). Edmund Burke informed Parliament that "they have sold nearly
as many of Blackstone's Commentaries in America as in England." Speech
concerning Resolutions for Conciliation with the Colonies (Mar. 22, 1775),
in Edmund Burke, Pre-Revolutionary Writings 206, 225
(Ian Harris ed., 1993).
51 4 Blackstone at *56; see id.
(person barred from "keeping arms in his house"). See 1 W. &
M., Sess. 1, c. 15, 4 (1689) ("no papist . . . shall or may have or
keep in his house, or elsewhere, or in the possession of any other person
to his use, or at his disposition, any arms, weapons, gunpowder, or ammunition").
52 Kates, 82 Mich. L. Rev. at 215, 219.
53 We discuss this proposal below in Part
54 Commonwealth v. Blanding,
20 Mass. (3 Pick.) 304, 338 (1825).
55 Samuel Johnson, A Dictionary of
the English Language (1755) (unpaginated). See Noah Webster,
An American Dictionary of the English Language (1828) (unpaginated)
(defining "Keep" first as "To hold; to retain in one's power or possession").
56 See Stephen P. Halbrook, A
Right to Bear Arms: State and Federal Bills of Rights and Constitutional
Guarantees 94 (1989) (contending that "common linguistic usage of
the day . . . referr[ed] to the depositing of public
arms in an arsenal, in contrast with the keeping of private arms
by the people," and providing an example of the former usage in a 1789
state statute); cf. U.S. Const. art. I, 10, cl. 3 ("No State
shall . . . keep Troops" without Congress's consent) (emphasis added).
When members of a militia, as opposed to the people in general, retained
their own arms for militia service, common usage seems to have been to
speak of them "providing" themselves with weapons, see Militia
Act, ch. 33, 1, 1 Stat. 271 (1792); Thomas Jefferson, Notes on the
State of Virginia 88 (William Peden ed., 1982); 1 The Papers
of George Mason, 1725-1792, at 212 (Robert A. Rutland ed., 1970),
although we do not mean to claim that one could not speak of militiamen
"keeping" arms for militia use.
57 Johnson, Dictionary (unpaginated).
58 See id. (defining
"bear" as to "carry as a burden," "convey or carry," "carry as a mark
of authority" (such as a sword), "carry as a mark of distinction" (such
as to "bear arms in a coat"), and "carry as in show"); Webster,
American Dictionary (unpaginated) (defining "bear" as to "support,"
"sustain," "carry," "convey," "support and remove from place to place,"
"wear," and "bear as a mark of authority or distinction; as, to bear
a sword, a badge, a name; to bear arms in a coat").
59 In Muscarello v.
United States, 524 U.S. 125 (1998), which involved a statute,
the Court was unanimous in understanding "bear arms" to refer generally
to a person carrying arms upon his person for the purpose of being armed
and ready for offensive or defensive action, the dissent citing the Second
Amendment in support of this view. The majority gave "carries a firearm"
a broader meaning. Id. at 130; id. at 139-40, 143 (Ginsburg,
60 See, e.g., Kates,
82 Mich. L. Rev. at 219 (explaining that, in early colonial statutes,
"'bear' did generally refer to the carrying of arms by militiamen"); St.
George Tucker, 2 Blackstone's Commentaries *408-09 n.1 (1803;
reprint 1996) ("Tucker's Blackstone") (discussing Virginia law
exempting from militia duty those "religiously scrupulous of bearing arms");
The Declaration of Independence para. 28 (1776) ("He has constrained our
fellow Citizens taken Captive on the high Seas to bear Arms against their
country."). Militia service was not, however, limited to "military" action.
The Constitution speaks of using the militia "to execute the Laws of the
Union," which is distinct from both "repel[ling] Invasions" and "suppress[ing]
Insurrections." U.S. Const. art. I, 8, cl. 15.
61 Quoted in Malcolm, To
Keep and Bear at 139.
62 2 The Papers of Thomas Jefferson
443-44 (Julian P. Boyd ed., 1950). Concerning the Committee of Revisors,
see id. at 305; 1 Tucker's Blackstone, Note
F, at 444-45.
63 These are collected, through the Michigan
Constitution of 1835, in Emerson, 270 F.3d at 230 n.29. We discuss
the Pennsylvania and Vermont constitutions below in Part III.B.2. For
an 1822 judicial interpretation confirming the plain meaning of the Kentucky
provision as granting an individual right, see below, Part IV.B.1. Regarding
ratification of the Bill of Rights, see below, Part III.C.2.
64 "Legality of the London Military Foot-Association"
(July 24, 1780), reprinted in William Blizard, Desultory
Reflections on Police: With an Essay on the Means of Preventing Crimes
and Amending Criminals 59, 59 (London 1785) (emphasis omitted). Regarding
this opinion, which was "of wide interest," Leon Radzinowicz, 4 A
History of English Criminal Law 107 (1968), see id. at 107-10;
Malcolm, To Keep and Bear at 133-34; and our further discussion
below in Part III.A. Regarding the Recorder, see 1 Blackstone
at *76; 3 id. at *80-81 n.i; id. at *334; John H. Langbein,
Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder
Sources, 50 U. Chi. L. Rev. 1, 8, 17-19, 34-36 (1983).
65 This essay by Tench Coxe is discussed
below in Part III.C.2.
66 Joseph Story, Commentaries on the
Constitution of the United States 980, at 695 (Ronald D. Rotunda
& John E. Nowak eds., 1987) (1833) ("Abridgement"). The English
right is discussed below in Part III.A.
67 See Bernard Schwartz, 2 The
Bill of Rights: A Documentary History 665, 672 (1971). We discuss
the Pennsylvania Convention, including the Report and its critics,
in Part III.C.1, below. Regarding the Report's wide circulation,
see id. at 628; 2 The Documentary History of the
Ratification of the Constitution 617 (Merrill Jensen ed., 1976) ("Doc.
Hist.") (note); 15 Doc. Hist. at 7-10 (John P. Kaminski
& Gaspare J. Saladino eds., 1984) (note).
68 In addition, the Second Amendment's
reference to "Arms" in the context of "keep" and "bear" reinforces our
view that it protects an individual right. The mere word "Arms" could
denote any weapon, including artillery. See Webster, American
Dictionary (unpaginated) (defining "arms" as "Weapons of offense,
or armor for defense and protection of the body" and including explanation
of "Fire arms" as "such as may be charged with powder, as cannon,
muskets, mortars &c."; also defining the verb "arm" as including "[t]o
furnish with means of defense; to prepare for resistance; to fortify");
Johnson, Dictionary (unpaginated) (defining "arms" as "Weapons
of offence, or armour of defence"). Certainly Congress's power in Article
I, Section 8, Clause 16 to provide for "arming" the militia includes such
weapons, particularly given that the Constitution contemplates that the
States will use militias to defend themselves against surprise invasions.
See U.S. Const. art. I, 10, cl. 3 ("No State shall, without
the Consent of Congress, . . . keep Troops, . . . or engage in War, unless
actually invaded, or in such imminent Danger as will not admit of delay.");
Militia Act 4, 1 Stat. 271, 272 (1792) (requiring each division of State's
militia to have a company of artillery and troop of horse). If the Second
Amendment protected a state prerogative to have organized and effective
militias, one would expect it to protect all of the arms essential for
that purpose, including artillery. Yet its text suggests that the "Arms"
that it protects do not include those that "the people" could not both
"keep" and "bear" - those that an individual could not store and carry.
This use of "Arms" points toward an individual-right view rather than
a right of States to have select "militias," and it also seems more consistent
with an individual-right than a quasi-collective-right view, as the latter
requires that the "militia" of which the claimant is a member be fully
organized and equipped. See, e.g., United States
v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).
69 This rule assumes that the legislature
incorporated the declaration during the ordinary legislative process,
not adopting it separately (with little consideration) or leaving it to
others to insert. Norman J. Singer, 2A Sutherland on Statutory
Construction 47.04, at 220 & 223 (6th ed. 2000); see James
Kent, 1 Commentaries on American Law 516 (9th ed. 1858) (noting
that titles and preambles "generally . . . are loosely and carelessly
inserted, and are not safe expositors of the law"); see also
King v. Williams, 96 Eng. Rep. 51, 52, 1 Blackst.
Rep. 93 (K.B. 1758) ("The conciseness of the title shall not control the
body of the Act. The title is no part of the law; it does not pass with
the same solemnity as the law itself. One reading is often sufficient
for it."); Thomas Jefferson, A Manual of Parliamentary Practice for
the Use of the Senate of the United States 41 (1801; reprint 1993)
(noting desirability that preamble "be consistent with" a bill but possibility
that it may not be, because of legislative procedures).
70 Examples of both include the statutes
discussed or cited below in Part III.A. See, e.g., the
Militia Act of 1662, 13 & 14 Car. II, c. 3, 1, 3, 14, 20; the Game
Act of 1671, 32 & 33 Car. II, c. 25, 1, 2, 4, 5, 6, 7; the Act
to Disarm Papists, 1 W. & M., Sess. 1, c. 15, 1, 4 (1689); the
Bill of Rights, 1 W. & M., Sess. 2, c. 2, 1, 9 (1689); the Game
Act of 1692, 4 & 5 W. & M., c. 23, 1, 3, 4, 5, 7, 10; the act
repealing the ban on hail-shot, 6 & 7 Will. III, c. 13, 1, 3 (1695);
and the Game Act of 1706, 5 Ann., c. 14, 1, 3, 5.
71 Copeman v. Gallant,
24 Eng. Rep. 404, 407, 1 P. Wms. Rep. 314 (Ch. 1716); id. at
405 (quoting statute) (emphases added); see Singer, 2A
Sutherland 47.04, at 220 ("Copeman . . . established the rule
that the preamble could not be used to restrict the effect of the words
used in the purview."). In Ryall v. Rolle,
26 Eng. Rep. 107, 1 Atkyns Rep. 165 (Ch. 1749), although the question
was not at issue, see id. at 116 (Lee, C.J.); id.
at 118 (Hardwicke, Ch.), some judges voiced disagreement with Copeman's
interpretation of that statute because of the great "inconvenience" it
would cause to commercial arrangements such as trusts, agency, and bailment,
but they still recognized the general rule, see id. at 113 (Parker,
C.B.) (recognizing another case holding "[t]hat the preamble shall not
restrain the enacting clause" and recognizing that Copeman "exploded
the notion of the preamble's governing the enacting clause," but adding
that "if the not restraining the generality of the enacting clause will
be attended with an inconvenience, the preamble shall restrain it"); id.
at 118 (Hardwicke, Ch.) (agreeing with Parker).
72 King v. Athos,
8 Mod. Rep. 136, 144 (K.B. 1723). See id. (Fortescue, J.) ("[I]t
must be admitted, that a preamble may be a good expositor of a statute;
but what was offered on the other side is not properly a preamble, but
only introductive to an enacting part of a statute: besides . . . preambles
are no more than recitals of inconveniences, which do not exclude any
other to which a remedy is given by the enacting part."); Kinaston
v. Clark, 26 Eng. Rep. 526, 527, 2 Atkyns Rep. 204 (Ch.
1741) ("There are many cases where the enacting part in a statute extends
further than the preamble even in criminal matters . . . .").
73 1 Blackstone at *59-60. See
Crespigny v. Wittenoom, 100 Eng. Rep. 1304,
1305, 4 Term Rep. 791 (K.B. 1792) (Buller, J.) ("I agree that the preamble
cannot controul the enacting part of a statute, which is expressed in
clear and unambiguous terms. But if any doubt arise on the words of the
enacting part, the preamble may be resorted to, to explain it."); id.
at 1306 (Grose, J.) ("Though the preamble cannot controul the enacting
clause, we may compare it with the rest of the Act, in order to collect
the intention of the Legislature.").
74 Kent, 1 Commentaries at 516.
See Mills v. Wilkins, 87 Eng. Rep. 822, 822-23,
6 Mod. Rep. 62 (Q.B. 1703) ("[T]he title is not the law, but the name
or description given to it by the makers: just as the preamble of a statute
is no part thereof, but contains generally the motives or inducements
thereof."); see also Singer, 2A Sutherland 47.04,
at 221-22; id. at 224-25 ("The preamble can neither limit nor
extend the meaning of a statute which is clear. Similarly, it cannot be
used to create doubt or uncertainty.").
75 Joseph Story, 1 Commentaries on
the Constitution of the United States 459-460, at 443-44 (1833;
76 Jacobson v.
Massachusetts, 197 U.S. 11, 22 (1905).
77 See U.S. Term Limits, Inc.
v. Thornton, 514 U.S. 779, 821 n.31, 838 (1995); id.
at 846 & n.1 (Thomas, J., dissenting); see also Stenberg
v. Carhart, 530 U.S. 914, 953 (2000) (Scalia, J., dissenting).
78 N.H. Const. art. I, 17
(1784), reprinted in Francis Newton Thorpe, 4 The Federal
and State Constitutions, Colonial Charters, and Other Organic Laws
2455 (1909; reprint 1993).
79 See Eugene Volokh, The
Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 798, 804-05,
808-09 (1998); Emerson, 270 F.3d at 234 n.32.
80 Mass. Const. pt. I, 21 (1780), reprinted
in 3 Fed. and State Consts. at 1892; N.H. Const. art.
I, 30 (1784), reprinted in 4 Fed. and State Consts.
at 2457; Vt. Const. ch. I, 16 (1786), reprinted in 6 Fed.
and State Consts. at 3753.
81 See Volokh, 73 N.Y.U. L. Rev.
at 794-95, 799-800. As with statutes, constitutional prefaces and operative
language often do not match exactly, the latter sometimes being overinclusive
compared to the declaration and sometimes underinclusive. See id.
at 801-07 (providing examples).
82 Creating the Bill of Rights: The
Documentary Record from the First Federal Congress 12 (Helen E. Veit
et. al. eds., 1991) (emphasis added).
83 Madison, Notes of Debates
at 639 (Sept. 14). Mason's proposal was defeated, apparently on the ground
that it improperly impugned soldiers. Id. at 639-40.
84 Athos, 8 Mod. Rep. at 144.
85 The Ninth Circuit in Silveira
provided only one paragraph on the proper relationship between a preface
and operative language, concluding that the latter must be read "to implement
the policy" of the former. See 312 F.3d at 1075.
86 United States v. Miller,
307 U.S. 174, 178 (1939).
87 See, e.g., Silveira,
312 F.3d at 1069-72.
88 Nordyke v. King,
364 F.3d 1025, 1031 (9th Cir. 2004) (Gould, J., joined by O'Scannlain,
Kleinfeld, Tallman, and Bea, J.J., dissenting from denial of rehearing
89 Athos, 8 Mod. Rep. at 144.
90 See Kopel, 93 Mich. L. Rev.
at 1355 ("[O]ne of the reasons Congress guaranteed the right of the people
to keep and bear arms was so that a popular militia could be drawn from
the body of the people.") (footnote omitted). Thus, the Silveira
court's description of the militia as "the state-created and -organized
military force," 312 F.3d at 1069, is technically true but critically
incomplete, because it ignores the composition of the militia.
91 On the former distinction, see U.S.
Const. art. I, 8, cls. 12-16; art. I, 10, cl. 3; art. II, 2, cl.
1; amend. V; Articles of Confed. art. VI (contrasting a "body
of forces" with "a well regulated and disciplined militia, sufficiently
armed and accoutered."); Authority of President to Send Militia Into
a Foreign Country, 29 Op. Att'y Gen. 322, 322 (1912) (Wickersham,
A.G.) ("[T]he militia has always been considered and treated as a military
body quite distinct and different from the Regular or standing army.").
92 See Malcolm, To Keep
and Bear at 125 (discussing concerns of English Whigs after the English
Revolution of 1688-1689 to maintain a citizens' militia as opposed to
a select one); id. at 95-97, 103, 105 (discussing purges and
selective disarmament of militia by Charles II and James II); id.
at 63 (discussing Charles II's select militia).
93 Madison, Notes of Debates
at 478, 483-84 (Aug. 18).
94 Id. at 515 (Aug. 23). John
Adams also praised a militia of the whole people, as opposed to a select
band, in works that he published in 1776 and 1787. See below,
95 Federalist No. 46, at 321
(J. Madison). The population of all white males aged 16 and over in the
1790 census was 813,298, making Madison's number a fair approximation
of the citizen militia. See U.S. Dept. of Commerce, Bureau of
the Census, 1 Historical Statistics of the United States 16 (1975).
96 Federalist No. 29, at 183-85
97 1 The Debate on the Constitution
712 (Bernard Bailyn ed., 1993).
98 2 id. at 507. For Ramsey's
biography, see id. at 1009.
99 "Aristides," Remarks on the Proposed
Plan of a Federal Government (1788), reprinted in 15 Doc.
Hist. at 522, 533; see id. at 518-20 (note regarding circulation
100 10 Doc. Hist. at 1312 (John
P. Kaminski & Gaspare J. Saladino eds., 1993) (June 16, 1788).
101 Federal Farmer No. 18 (1788),
reprinted in 2 The Complete Anti-Federalist 341-42 (Herbert
J. Storing ed., 1981); see also No. 3 (1787), id. at
242. Publius (Hamilton) recognized the Federal Farmer letters
as among the best of the Anti-Federalists'. See Federalist No. 68,
102 Act of May 8, 1792, ch. 33, 1-2,
1 Stat. at 271-72; see 2 Tucker's Blackstone at *409
103 10 U.S.C. 311(a) (2000) (including
in the militia "all able-bodied males at least 17 years of age and . . .
under 45 years of age," both citizens and those "who have made a declaration
of intention to become" citizens, certain men between 45 and 64, and "female
citizens of the United States who are members of the National Guard").
104 Webster, American Dictionary
(unpaginated) (emphasis added).
105 1 Blackstone at *134, 138, 413.
106 Art. I, 8, cl. 15.
107 29 Op. Att'y Gen. at 322; see
Perpich v. Department of Defense, 496 U.S. 334, 341-44 (1990).
108 307 U.S. at 179 (emphases
added); see id. at 179-82 (collecting historical support); see
Presser v. Illinois, 116 U.S. 252, 265 (1886) ("It is undoubtedly
true that all citizens capable of bearing arms constitute the reserved
military force or reserve militia of the United States as well as of the
States."); Maryland v. United States, 381 U.S.
41, 46 (1965) (describing pre-World War I militia as "a citizen army").
109 See, e.g., Silveira,
312 F.3d at 1069-72.
110 Aristocrotis, The Government
of Nature Delineated, or An Exact Picture of the New Federal Constitution
(1788), reprinted in 3 Complete Anti-Fed. at 202.
111 Lund, 31 Ga. L. Rev. at 25, 26.
112 See Silveira v.
Lockyer, 328 F.3d 567, 579 (9th Cir.) (Kleinfeld, J., joined
by Kozinski, O'Scannlain, and T.G. Nelson, JJ., dissenting from denial
of rehearing en banc) ("The panel seems to imagine that
a well regulated militia is a people disarmed until the government puts
guns in their hands after summoning them to service."), cert. denied,
124 S. Ct. 803 (2003).
113 See below, Part IV.A, for St. George
Tucker's discussion of a similar point.
114 307 U.S. at 178-79 (emphasis added).
115 Va. Decl. of Rights 13 (1776),
reprinted in 7 Fed. and State Consts. at 3814.
116 N.Y. Const. 40 (1777), reprinted
in 5 Fed. and State Consts. at 2637.
117 Federalist No. 29, at 183-84
(A. Hamilton) (emphases added).
118 Sentiments on a Peace Establishment
(1783), reprinted in 3 The Founders' Constitution 129
(Phillip B. Kurland and Ralph Lerner eds., 1987) (emphases added).
119 Fed. Farmer No. 3, reprinted
in 2 Complete Anti-Fed. at 242; Fed. Farmer No.
18, reprinted in id. at 342 (emphases added).
120 Antonin Scalia, Response,
in A Matter of Interpretation: Federal Courts and the Law
137 n.13 (1997).
121 U.S. Const. art. I, 8, cl. 15;
see id. amend V (discussing militia service in "War or public
122 4 Blackstone at *151; e.g.,
Mass. Const. pt. I, art. 16 (1780), reprinted in 3 Fed. and
State Consts. at 1892. Similarly, the English Declaration of Rights,
well known to the Founding Generation, see below, Part III.A,
charged King James II with having sought to "subvert and extirpate" the
"liberties of this kingdom" by taking several actions "utterly and directly
contrary to" the "freedom of this realm." 1 W. & M., Sess. 2, c. 2,
123 See also Malcolm, To
Keep and Bear at 50-53, 115-16, 123 (militia officers' use of discretionary
power to disarm); id. at 45-46 (disarmament by Charles II prior
to 1662); id. at 85 (disarmament by militia in 1678); id.
at 103 (use of militia by James II to disarm suspicious persons); id.
at 105 (attempted use of militia in 1686 to disarm by enforcing game
act); id. at 31 (in Civil War); see also id. at 92-93,
95 (in response to 1683 Rye House plot; confiscated arms given to militia);
id. at 100 (disarmament by Charles II in western England early
in reign, and in response to Rye House plot later). Efforts to disarm
and undermine the militia also included requiring its members to "store"
their arms in government magazines. See id. at 38, 78-79,
96-97; see also id. at 3, 5, 10-11 (discussing private ownership
and storage prior to English Civil War, and failed plans to require public
storage). The actions of white militias toward freed blacks in the South
after the American Civil War were similar. See Part IV.C, below.
124 Va. Decl. of Rights 13 (1776),
reprinted in 7 Fed. and State Consts. at 3814;
see also Md. Const., Decl. of Rights 25 (1776), reprinted
in 3 id. at 1688 ("That a well-regulated militia is
the proper and natural defence of a free government.").
125 1 Debate on the Const. at
126 Fed. Farmer No. 18, reprinted
in 2 Complete Anti-Fed. at 341-42.
127 James Burgh, Political Disquisitions,
reprinted in part in 3 Founders' Const. at 126, 125;
see Federalist No. 56 at 382 n.* (J. Madison); see also
2 Tucker's Blackstone at *245 n.7 (quoting Burgh's Disquisitions).
In both passages, Burgh was loosely quoting Andrew Fletcher,
a prominent member of the Scottish Parliament prior to union with England
in 1707. See A Discourse of Government with relation to Militias
(1698), reprinted in Andrew Fletcher, Political Works
21-22 (John Robertson ed., 1997); Speeches by a member of the Parliament,
No. 7 (1703), reprinted in id. at 149-50.
Regarding Fletcher and Burgh, see David Thomas Konig, The
Second Amendment: A Missing Transatlantic Context for the Historical Meaning
of "the Right of the People to Keep and Bear Arms," 22 Law &
Hist. Rev. 119, 125-26, 136-39 (2004).
128 Burgh, Political Disquisitions,
reprinted in 3 Founders' Const. at 124, 126.
As Fletcher put it: "I cannot see, why arms should be denied to any man
who is not a slave, since they are the only true badges of liberty . . .
neither can I understand why any man that has arms, should not be taught
the use of them." A Discourse of Government, reprinted in
Fletcher, Political Works at 23.
129 The duty to serve in the militia
and the right to possess or carry weapons for self-defense were related
but distinct in colonial America. One might have the latter without the
former. See Cottrol & Diamond, 80 Geo. L.J. at 325-37 (surveying
colonial laws and explaining the development of "the view that the security
of the state was best achieved through the arming of all free citizens,"
regardless of eligibility for militia service); see also Part
II.B.1, above (discussing right to "keep" arms for private purposes).
130 1 Blackstone at *144. Blackstone
also described the fundamental "right of personal security" as including
protection against "loss of limb," so as to guard a man's ability "to
protect himself from external injuries in a state of nature," and condemned
any destruction of limbs as "a manifest breach of civil liberty," id.
at *129, 130; and he set out the basic common-law rule of self-defense,
"the primary law of nature," by which it is lawful for a person "forcibly
attacked in his person or property . . . to repel force by force" without
being liable for breach of the peace or a resulting homicide, 3 id.
at *3-4. The importance of this right of self-defense was reinforced by
the absence of any constitutional duty of government to defend citizens'
lives, liberty, or property. See DeShaney v. Winnebago
County Soc. Servs. Dept., 489 U.S. 189, 195-97 (1989).
131 John Locke, Second Treatise of
Government 18-19, at 12-13 (Richard H. Cox ed., 1982) (1689);
see also id. 204-10, at 126-29 (similar). Blackstone and Locke
disagreed on the exact scope of the right of self-defense. 4 Blackstone
at *181-82; see also 1 id. at *251. Locke was, after
Blackstone and Montesquieu, the writer whom American political writers
of the Founding cited most. Malcolm, To Keep and Bear at 142
& 214 n.44. His thinking is particularly evident in the Declaration
of Independence. See also 2 Tucker's Blackstone at *161
132 See Van Alstyne, 43 Duke
L.J. at 1243 (The Second Amendment "looks to an ultimate reliance on the
common citizen who has a right to keep and bear arms . . . as an essential
source of security [for] a free state."); see also Lund,
31 Ga. L. Rev. at 24.
133 Cf. Planned Parenthood
v. Casey, 505 U.S. 833, 847 (1992) (rejecting argument that
the personal "liberty" that the Fourteenth Amendment protects "encompasses
no more than those rights already guaranteed to the individual
against federal interference by the express provisions of the first
eight Amendments") (emphasis added) (citation omitted); Moore
v. City of East Cleveland, 431 U.S. 494, 502 (1977)
(plurality opinion) (similar, quoting Poe v. Ullman,
367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting)); Johnson
v. Eisentrager, 339 U.S. 763, 784 (1950) (describing
First, Second, Fourth, Fifth, and Sixth Amendments as the "civil-rights
Amendments"); Robertson v. Baldwin, 165 U.S.
275, 281 (1897) (describing Bill of Rights as embodying "certain guaranties
and immunities which we had inherited from our English ancestors"). While
some might argue that, as an original matter, the First Amendment's Establishment
Clause (which makes no reference to any "right" or "freedom") was an exception
to this rule, the Supreme Court has held that it too creates an individual
right, applicable even against States. See Zelman v.
Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring);
Everson v. Board of Ed., 330 U.S. 1, 8 (1947);
David Currie, The Constitution in the Supreme Court: The Second Century
134 Cooley, General Principles
135 Story, Abridgement 984,
at 698 (commencing discussion of First through Fourth, and Eighth through
136 See 4 Blackstone at *152
n.a; John O. McGinnis, The Once and Future Property-Based Vision of
the First Amendment, 63 U. Chi. L. Rev. 49, 92-94 (1996).
137 Compare 1 Blackstone at
*138 ("The third absolute right, inherent in every Englishman, is that
of property: which consists in the free use, enjoyment, and disposal
of all his acquisitions, without any control or diminution, save only
by the laws of the land.") (emphasis added), with id. at *144
(recognizing "the right of having and using arms") (emphasis
added); see above, Part II.B.1 (discussing English cases in 1700's
approving the "keeping" of arms for defense of one's self and home).
138 1 W. & M., Sess. 2, c. 2, 1,
paras. 5 & 7 of the list of rights.
139 See also 1 Blackstone at
*143-44 (similar); Jean L. De Lolme, 2 The Rise and Progress of the
English Constitution 886-87 (A. J. Stephens ed., 1838) (1784) (noting
that English Bill of Rights "expressly ensured to individuals the right
of publicly preferring complaints against the abuses of the government,
and, moreover, of being provided with arms for their own defence," and
then quoting 1 Blackstone at *144 regarding these rights).
140 See 4 id. at *145-49
(discussing the following misdemeanor breaches of the peace: affray, riot,
rout, unlawful assembly, tumultuous petitioning, forcible entry or detainer,
and going armed with dangerous or unusual weapons to the terror of the
people). Among felonies against the public peace, Blackstone first listed
violation of the Riot Act against "riotous assembling of twelve persons"
and then described "unlawful hunting" in certain parks, which involved
being disguised and "armed with offensive weapons." Id. at *142-44.
141 2 Tucker's Blackstone at
*143-44 nn.38-41. See also United States v. Cruikshank,
92 U.S. 542, 551-53 (1876) (analyzing the two rights similarly); Logan
v. United States, 144 U.S. 263, 286-87 (1892) (same).
142 Federalist No. 29, at 185
(A. Hamilton); see also id. No. 46, at 321-22 (J. Madison).
143 U.S. Const. art. I, 10, cl. 3.
See Houston v. Moore, 18 U.S. (5 Wheat.) 1,
52 (1820) (Story, J., dissenting); Va. Ratif. Conv., in
10 Doc. Hist. at 1307 (remarks of John Marshall, June 16).
144 See Story, Abridgement
593, at 425; Va. Ratif. Conv., in 10 Doc. Hist. at
1304, 1311 (remarks of James Madison, June 16); id. at 1306-07
(remarks of John Marshall, same).
145 Compare 9 Doc. Hist.
at 1074 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (H. Lee,
June 9), id. at 1102 (Randolph, June 10), 10 id. at
1273 (Madison, June 14), id. at 1306-08 (Marshall, June 14);
with 9 id. at 957-58, 1066 (Patrick Henry, June 5 &
9), 10 id. at 1270-71 (George Mason, June 14), id. at
1305 (William Grayson, June 16). Henry Lee should not be confused with
his Anti-Federalist cousin Richard Henry Lee.
146 Story, Commentaries 1202,
147 18 U.S. (5 Wheat.) 1 (1820). See
Part IV.B.1, below.
148 Perpich, 496 U.S. at 353-54
149 312 F.3d at 1081 n.43.
150 As we explain below in Part III.C,
several state ratifying conventions unsuccessfully proposed similar language
in suggested amendments distinct from those securing the right to bear
151 Silveira v. Lockyer,
328 F.3d 567, 580 (9th Cir.) (Kleinfeld, J., joined by Kozinski, O'Scannlain,
and T.G. Nelson, JJ., dissenting from denial of rehearing en banc),
cert. denied, 124 S. Ct. 803 (2003).
152 Loving v. United States,
517 U.S. 748, 766 (1996).
153 Robertson v. Baldwin,
165 U.S. 275, 281 (1897), discussed further below in Part IV.D.
154 See 1 Blackstone at *151.
155 The Founders were well aware of the
events leading up to the Declaration. A delegate at the Massachusetts
Ratifying Convention, warning against overreacting to the weakness of
the Articles of Confederation, pointed to the Restoration, in which the
people, "so vexed, harassed and worn down . . . [had] run mad with loyalty,
and would have given Charles any thing he could have asked." 1 Debate
on the Const. at 897 (remarks of Charles Turner, Jan. 17, 1788).
A delegate at Virginia's convention drew the opposite lesson: The new
Constitution would prevent the anarchy that had led England into the arms
of Charles II. 2 id. at 756 (remarks of Zachariah Johnston, June
156 13 & 14 Car. II, c.
157 Malcolm, To Keep and Bear
at 36, 38, 43, 45-48, 50-53, 85, 100, 115-16, 123; see also id.
at 92-93, 95; Lois G. Schwoerer, The Declaration of Rights, 1689,
at 76 (1981) ("Charles II had made effective use of" the militia acts
"to try to snuff out political and religious dissent," disarming individuals
and towns and confiscating weapons). He had begun doing so as soon as
he assumed the throne. An interim act in 1661 approved his actions and
provided indemnity to militiamen. 12 Car. II, c. 6, 3 (favorably recognizing
that "divers arms have been seized and houses searched for arms"); cf.
Federalist No. 69, at 465 n. (A. Hamilton) (discussing 1661 act).
158 Malcolm, To Keep and Bear
159 Id. at 63. See also
Schwoerer, Declaration at 75-76 (describing Charles II's actions,
including disarmament, and noting rise of complaints from Commons beginning
160 Malcolm, To Keep and Bear at
12; see id. at 69-76; Schwoerer, Declaration at 78 (describing
it as "the most stringent and comprehensive of the game laws") (internal
quotation marks omitted).
161 22 & 23 Car. II, c.
25, 3 (providing that all who did not have estate "of the clear yearly
value of one hundred pounds" per year were "not allowed to have or keep
for themselves, or any other person or persons, any guns, bows, greyhounds
. . . or other engines").
162 See 4 Blackstone at *55
(explaining various legal disabilities on certain Roman Catholics, including
several dating from English Revolution or earlier, by stating that such
persons "acknowledge a foreign power, superior to the sovereignty of the
kingdom"); id. at *58 (hoping that "a time . . . should arrive"
soon when it would be safe to "review and soften these rigorous edicts").
163 See Malcolm, To Keep
and Bear at 95-106; Schwoerer, Declaration at 71-73, 75-76;
see also Federalist No. 26, at 166 (A. Hamilton);
Marcus No. 4 (James Iredell) (1788), reprinted in 1 Debate
on the Const. at 391; Mass. Ratif. Conv., in id. at 904
(remarks of Thomas Dawes, Jr., Jan. 24, 1788).
164 The Bill of Rights is at 1 W. &
M., Sess. 2, c. 2 (1689). Its first three sections, except for the initial
preamble, consist of the Declaration, see Schwoerer, Declaration
at 295 (App. 1, reprinting Declaration), and it recounts the events of
the Revolution. See also 1 W. & M., Sess. 1, c. 1, 2 (1689)
(noting presentation and acceptance of crown, and proclaiming Parliament
to be regular from that date); id. c. 6 (establishing coronation
oath); 1 Blackstone at *128, 152, 211-16, 245 (discussing events); Federalist
No. 84, at 578 (A. Hamilton) (similar).
165 Federalist No. 26, at 165-66.
See Schwoerer, Declaration at 289 (Americans greeted
the revolution and Declaration "with enthusiasm.").
166 Similarly, the same Parliament enacted
a law providing that a "papist or reputed papist" could "have or keep
. . . such necessary weapons, as shall be allowed to him by order of the
justices of the peace . . . for the defence of his house or person."
1 W. & M., Sess. 1, c. 15, 4 (1689) (emphasis added).
167 See Malcolm, To Keep
and Bear at 86-89 (noting effect of wealth qualification but also
dearth of prosecutions merely for possession). Blackstone complained that
there was "fifty times the property required to enable a man to kill a
partridge, as to vote for a knight of the shire." 4 Blackstone at *175.
In addition, these clauses probably referred to two statutes from the
1540's restricting ownership and use of short handguns based on wealth,
outlawing shot, and regulating the use of guns in cities or towns, see
33 Hen. VIII, c. 6 (1541); 2 & 3 Edw. VI, c. 14 (1548), and they
may also have referred to the Militia Act, see Malcolm, To
Keep and Bear at 120.
168 Lois G. Schwoerer, To Hold and
Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27, 59 (2000).
She seems to misunderstand the individual-right view as requiring an unlimited
right. See id. at 56, 60.
169 Schwoerer, Declaration at
283; see Malcolm, To Keep and Bear at 119-20. See
also Jean L. De Lolme, 2 The Rise and Progress of the English
Constitution 886 (A. J. Stephens ed., 1838) (1784) (Declaration "expressly
ensured to individuals the right of [petition and] of being provided with
arms for their own defence").
170 1 Blackstone at *271.
171 See Federalist No. 84,
at 578-79 (A. Hamilton) (arguing "that bills of rights are in their origin,
stipulations between kings and their subjects, abridgments of prerogative
in favor of privilege, reservations of rights not surrendered to the prince,"
and "[s]uch . . . was the declaration of rights presented by the lords
and commons to the prince of Orange in 1688, and afterwards thrown into
the form of an act of parliament called the bill of rights").
172 Silveira, 328 F.3d at 582
173 5 Ann., c. 14, 3 (1706); see
4 & 5 W. & M., c. 23, 3 (1693) (similar). Parliament also repealed
the later of the two statutes of the 1540's mentioned in note 167, noting
its desuetude. 6 & 7 Will. III, c. 13, 3 (1695). Enforcement of
the other was, at least in the 1600's, lax and selective. See Malcolm,
To Keep and Bear at 80-81, 87. Efforts to revise the Militia Act
failed, but the right in the Bill may have sufficed to restrain the King
from disarming Protestants. See id. at 123-25; see
also 1 Blackstone at *271; Schwoerer, Declaration at 75-78,
174 Rex v. Gardner, 87 Eng.
Rep. 1240, 1241, 7 Mod. Rep. 279 (K.B. 1739).
175 Wingfield v. Stratford,
96 Eng. Rep. 787, 787-88, Sayer Rep. 15 (K.B. 1752) (Lee, C.J., citing
Rex v. Gardner, 2 Strange Rep. 1098 (K.B. 1738)); Mallock
v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482
(C.P. 1744), respectively; see also Part II.B.1, above
(discussing use of "keep" in these and other cases); Malcolm, To Keep
and Bear at 128 (quoting commentator of early 1800's reaffirming
rule of these cases). In addition, it appears that courts strictly interpreted
indictments under the game laws. See King v. Silcot,
87 Eng. Rep. 186, 186 n.(b), 3 Mod. Rep. 280 (K.B. 1690) (reporter's note
176 Mallock, 87 Eng. Rep. at
1374; Wingfield, 96 Eng. Rep. at 787 (Lee, C.J.).
177 "Legality of the London Military
Foot-Association" (July 24, 1780), reprinted in William Blizard,
Desultory Reflections on Police: With an Essay on the Means of Preventing
Crimes and Amending Criminals 59, 59-60 (1785) (italics omitted).
For background, see Part II.B.2 above. The Recorder found it
"a matter of some difficulty to define the precise limits and extent of
the rights of the people of this realm to bear arms, and to instruct themselves
in the use of them, collectively." Id. at 59. At the
very least, he opined, such a group needed to (1) have a "lawful" "professed
purpose and object," (2) "demean themselves in a peaceable and orderly
manner" consistent with that purpose, (3) not assemble in numbers that
"manifestly and greatly exceed" that purpose; and (4) not "act without
the authority of the civil magistrate" except to suppress "sudden, violent,
and felonious breaches of the peace." Id. at 62 (italics omitted).
See also William Hawkins, 1 A Treatise on the Pleas of the
Crown ch. 63, at 136, 10 (1724; reprint 1972) (noting legality
of person "arm[ing] himself to suppress dangerous Rioters, Rebels, or
Enemies" and "endeavour[ing] to suppress or resist such Disturbers of
the Peace or Quiet of the Realm"); id. ch. 65, at 161, 21 (noting
right to do so when assisting Justice of Peace against riot).
178 See William Blackstone,
2 Commentaries on the Laws of England *412 n.8 (William Draper
Lewis ed., 1900) (reprinting annotation of Edward Christian). Christian's
posthumous Blackstone was published in 1793-95, see Malcolm,
To Keep and Bear at 134, 210, and available in America, see
1 Tucker's Blackstone at *145 n.42. Although the law was
clear, some questioned how much as a practical matter the revision of
the game laws had benefited commoners, as we explain in the discussion
of the Pennsylvania Constitution below in Part III.B.2.
179 1 Blackstone at *121; id.
at *123, 124.
180 Id. at *123. He contrasted
"relative" individual rights, "which are incident to [persons] as members
of society, and standing in various relations to each other." Id.
181 Id. at *124-28.
182 Id. at *129. These reappear
throughout the American Constitution, in general protections against deprivations
of "life, liberty, or property, without due process of law" and in specific
rights. See, for example, St. George Tucker's footnotes annotating Blackstone's
exposition of the three principal rights with parallels in the Constitution,
2 Tucker's Blackstone at *129, 133-40.
183 1 Blackstone at *140-41.
184 See id. at *141.
185 Id. at *141, 143-44.
186 Id. at *144.
187 See also 4 id.
at *55-58 (elsewhere describing prohibitions against certain Roman Catholics
keeping arms as hopefully temporary suspensions of rights). He summarized
the militia in Chapter 13, 1 id. at *412-13.
188 1 id. at *144.
189 Id. at *130. See id.
at *134 (summarizing common law's special protection for "those limbs
and members that may be necessary to a man in order to defend himself
or annoy his enemy").
190 2 id. at *412, 413.
191 4 id. at *416; see 2
id. at *415-16 (forest laws produced "the most horrid tyrannies
192 2 id. at *412. As an example,
he cited a popular book, by a bishop (and thus lord), that praised banning
"Peasants and Mechanics" from hunting game: "It was not at all for the
public Good to suffer [them] . . . to run up and down the Woods
and Forests, armed; which . . . draws them on to Robbery and Brigandage:
Nor to permit the populace, in Towns and Cities, to have, and carry Arms
at their pleasure; which would give opportunity and encouragement to Sedition,
and Commotions." William Warburton, 1 The Alliance Between Church
and State: Or, the Necessity and Equity of An Established Religion and
a Test Law Demonstrated 324 (London 4th ed. 1766).
193 4 Blackstone at *174-75.
194 See 2 id. at *411-12
(approving as "natural" a ban on unauthorized hunting on private property);
see 4 id. at *174 (being less critical of the "forest
law," which simply prohibited hunting in the king's forests).
195 See 4 id. at *144
(unlawful hunting - being disguised and "armed with offensive weapons"
in breach of peace and to terror of public); id. at *145 (affray
(public fighting), including attack with or drawing of weapon on church
grounds); id. at *148 (forcible entry or detainer, "such as is
carried on and maintained with force, with violence, and unusual weapons");
id. at *149 ("riding or going armed, with dangerous
or unusual weapons . . . by terrifying" the people); see also id.
at *146-47 (riots, routs, unlawful assemblies, and tumultuous petitioning);
id. at *168 (quasi-nuisance of "making, keeping, or carriage,
of too large a quantity of gunpowder at one time or in one place
or vehicle"); cf. id. at *182 (excusable homicide by misadventure,
such as "where a person qualified to keep a gun is shooting at a mark
and undesignedly kills a man: for the act is lawful, and the effect is
merely accidental"); 3 id. at *4 (noting limitation of self-defense
to "resistance" that "does not exceed the bounds of mere defence and prevention").
196 United States v.
Miller, 307 U.S. 174, 179-80 (1939) (internal quotation marks
omitted). See Kates, 82 Mich. L. Rev. at 215-16 ("With slight
variations, the different colonies imposed a duty to keep arms and to
muster occasionally for drill upon virtually every able-bodied white man
between the age of majority and a designated cut-off age. Moreover, the
duty to keep arms applied to every household, not just to those
containing persons subject to militia service. Thus, the over-aged and
seamen, who were exempt from militia service, were required to keep arms
for law enforcement and for the defense of their homes from criminals
or foreign enemies.") (footnotes omitted). In Virginia, "Every able-bodied
freeman, between the ages of 16 and 50, is enrolled in the militia. .
. . The law requires every militia-man to provide himself with the arms
usual in the regular service." That requirement "was always indifferently
complied with," and the militia's arms were "frequently called for to
arm the regulars," so that "in the lower parts of the country they are
entirely disarmed." But "[i]n the middle country a fourth or fifth part
of them may have such firelocks as they had provided to destroy the noxious
animals which infest their farms; and on the western side of the Blue
[R]idge they are generally armed with rifles." Thomas Jefferson, Notes
on the State of Virginia 88 (William Peden ed., 1954). For more regarding
the militia, see above, Part II.C.2-4.
197 See Malcolm, To Keep
and Bear at 139 (quoting colonial statutes from Rhode Island, Virginia,
and Georgia); Kates, 82 Mich. L. Rev. at 216 (discussing Georgia law);
id. at 240 ("[T]he English Game Acts . . . had never been a part
of the colonial law"); 5 Tucker's Blackstone at *175 n.16 (describing
game laws of Virginia, limited to prohibiting trespass and conversion
and establishing hunting season for deer).
198 See Cottrol & Diamond,
80 Geo. L.J. at 323-27 (noting that "the traditional English right" became
"a much broader American one" as part of "a more general lessening of
class, religious, and ethnic distinctions among whites in colonial America,"
but that "the law was much more ambivalent with respect to blacks"; surveying
varying colonial laws regarding right of blacks to carry weapons or keep
them in their homes, and noting usual exclusion from militia duty, except
in "times of crisis"); Malcolm, To Keep and Bear at 140-41 ("The
second group [after Indians] forbidden to possess weapons were black slaves,
with restrictions sometimes extended to free blacks . . . .
Northern colonies were ambivalent about blacks possessing firearms"; surveying
colonial laws and drawing parallel to England's ambivalent treatment of
right of Roman Catholics to have arms).
199 Boston Chronicle at 363,
col. 2 (Sept. 19, 1768), quoted in Stephen P. Halbrook, A
Right to Bear Arms: State and Federal Bills of Rights and Constitutional
Guarantees 1-2 (1989). This resolution was republished in the Maryland
Gazette. See id. at 61.
200 Boston Gazette, and Country Journal
at 2, col. 1 (Jan. 30, 1769), quoted in Halbrook, Right to
Bear at 6; see Boston under Military Rule, 1768-1769, as Revealed
in a Journal of the Times 61 (Oliver Morton Dickerson ed., 1936)
(reprinting same passage from Boston Evening Post (Apr. 3, 1769)).
201 Samuel Adams, Boston Gazette (Feb.
27, 1769), reprinted in 1 The Founders' Constitution
90 (Philip B. Kurland & Ralph Lerner eds., 1987). Adams quoted 1 Blackstone
at *143-44 & 144.
202 "Boston, March 17," New
York Journal, Supplement at 1, col. 3 (Apr. 13, 1769), reprinted in
Boston under Military Rule at 79; see Halbrook, Right
to Bear at 7 (quoting same passage).
203 3 Legal Papers of John Adams
247-48 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (quoting "Hawkins
p. 71, 14"). For the facts, see id. at 1 (note). Adams secured
several acquittals. Id. at 29.
204 John Adams, 3 A Defence of the
Constitutions of Government of the United States of America 475 (1787).
The Ninth Circuit selectively quoted this sentence to claim that Adams
"ridiculed . . . an individual right to personal arms" and asserted that
"the general availability of arms" would "'demolish every constitution,
and lay the laws prostrate, so that liberty can be enjoyed by no man -
it is a dissolution of the government.'" Silveira, 312 F.3d at
1085. In these portions, Adams was merely arguing against command of the
militia by private persons or localities, while also expressly reiterating
the right of arming for private self-defense.
205 See Hardy, 9 Harv. J.L.
& Pub. Pol'y at 590; Halbrook, Right to Bear at 9, 16, 72.
Soldiers seized provincial armories in Cambridge and Charlestown. In response,
"twenty thousand Yankees picked up their muskets and headed for Boston"
to confront the British. Robert A. Gross, The Minutemen and Their
World 55 (1976).
206 See First Continental Congress,
"Appeal to the Inhabitants of Quebec" (Oct. 1774), reprinted in
1 American Political Writing During the Founding Era, 1760-1805,
at 237 (Charles S. Hyneman & Donald S. Lutz eds., 1983) ("The injuries
of Boston have roused and associated every colony."); Halbrook, Right
to Bear at 88-89 (quoting warning of South Carolina's governing body
in 1774 against British "design of disarming the people of America" through
207 See Gross, Minutemen
at 59. In Concord, "Minutemen trained twice a week on the common and carried
their muskets everywhere, in the fields, in shops, even in church." When
they were mustered in March 1775, it "presented a revealing portrait of
the community. This was a citizen army of rural neighbors. . . . The Concord
militia included nearly everyone between the ages of sixteen and sixty."
Id. at 69-70.
208 Hardy, 9 Harv. J.L. & Pub. Pol'y
at 590-91; Malcolm, To Keep and Bear at 145-46.
209 Hardy, 9 Harv. J.L. & Pub. Pol'y
at 592; Halbrook, Right to Bear at 16.
210 1 Journals of Congress 137
(July 6, 1775) (1800); see Halbrook, Right to Bear at
13-15; Hardy, 9 Harv. J.L. & Pub. Pol'y at 591.
211 1 The Papers of George Mason
1725-1792, at 210-11 (Robert A. Rutland ed., 1970).
212 Id. at 212.
213 Id. at 229-31.
214 See Halbrook, Right
to Bear at 29-30.
215 Richard Caswell, William Hooper,
& Joseph Hewes, "To the Committees of the Several Towns and
Counties of the Province of North Carolina," N.C. Gazette (Newburn), at
2, col. 3 (July 7, 1775), excerpted in id. at 29.
216 See 4 Adams Papers
at 78 n.6 (note).
217 John Adams, Thoughts on Government
(Apr. 1776), reprinted in 4 id. at 91. This pamphlet,
written for political leaders in North Carolina, Virginia, and New Jersey,
was widely reprinted and discussed for several years. See id.
at 65, 68-72 (note).
218 Letter from Greene to Jefferson (Nov.
20, 1780), in 4 The Papers of Thomas Jefferson 130-31
(Julian P. Boyd ed., 1951).
219 See, e.g., "A
Democratic Federalist," Penn. Herald (Oct. 17, 1787), reprinted in
2 Doc. Hist. at 197 (arguing that "a well-regulated militia"
is "sufficient for every purpose of internal defense," as shown by victories
at Lexington and Bunker Hill); Va. Ratif. Conv., in 9 Doc.
Hist. at 981 (remarks of Edmund Randolph, June 6, 1788) ("I will
pay the last tribute of gratitude to the militia of my country: They performed
some of the most gallant feats during the last war, and acted as nobly
as men enured to other avocations could be expected to do: But, Sir, it
is dangerous to look to them as our sole protectors."); Federalist
No. 25, at 161-62 (A. Hamilton) (praising militias' valor but emphasizing
insufficiency for defense). General Greene recognized that the militia
should "not [be] depended upon as a principal but employed as an Auxilliary."
Letter to Jefferson, in 4 Jefferson Papers at 131.
220 Federalist No. 46,
at 321-22 (J. Madison).
221 The first constitutions of New Jersey,
South Carolina, Georgia, and New York did not include separate bills of
rights. Their constitutions did protect a few rights, but did not include
the right to arms or general statements regarding the militia. See
Bernard Schwartz, 1 The Bill of Rights: A Documentary History
256 (1971) (N.J. 1776); id. at 291 (Ga. 1777); id. at
301 (N.Y. 1777); id. at 325 (S.C. 1778). Georgia did provide
for forming a militia battalion in any county with "two hundred and fifty
men, and upwards, liable to bear arms," id. at 297, and New York
declared the duty of all to provide personal service to protect society,
see id. at 312, much as the Pennsylvania Declaration, discussed
below, did. Connecticut and Rhode Island did not adopt new constitutions.
Id. at 289.
222 Va. Bill of Rights 13 (1776), reprinted
in 7 Fed. and State Consts. at 3814.
223 Regarding this point and the meaning
of both "militia" and "well regulated militia," see above, Parts
II.C.2-4, and III.B.1, at note 196 (quoting Jefferson's Notes on the
State of Virginia).
224 See 1 Mason Papers
at 274-75, 286 (editorial notes); id. at 287 (final draft).
225 Delaware, Maryland, and New Hampshire
adapted Virginia's language, omitting definition of the militia and changing
"free state" to "free government" while retaining the implicit connection
between "a well regulated militia" and the avoidance of standing armies
and military insubordination. See Del. Decl. of Rights 18-20
(1776), reprinted in 5 Founders' Const. at 5, 6; Md.
Decl. of Rights 25-27 (1776), reprinted in 3 Fed. and
State Consts. at 1688; N.H. Const. pt. I, arts. 24-26 (1784), reprinted
in 4 Fed. and State Consts. at 2456. The Delaware Constitution
also specially provided that "[t]o prevent any violence or force being
used at . . . elections, no person shall come armed to any of them, and no
muster of the militia shall be made on that day." Del. Const. art. XXVIII
(1776), reprinted in 1 Fed. and State Consts. at 567.
226 Reprinted in 5 Fed.
and State Consts. at 3083.
227 See 1 Mason Papers
at 276 (note discussing "the widespread and almost immediate influence
of the Virginia Declaration of Rights on other nascent states," including
228 5 Fed and State Consts. at
3083. Such personal service would be difficult if one could not own private
arms. This duty may have been broader than the obligation of militia duty,
perhaps including the posse comitatus. See generally Federalist
No. 29, at 182-83 (A. Hamilton). New Hampshire's constitution, while
praising the well-regulated militia, recognized this duty separately,
N.H. Const. pt. I, arts. 12-13, reprinted in 4 Fed.
and State Consts. at 2455, although New York's connected the two,
N.Y. Const. 40 (1777), reprinted in 5 id. at
229 Pa. Plan or Frame of Gov't 5 (1776),
reprinted in 5 Fed. and State Consts. at 3084.
230 Id. 43, reprinted
in 5 Fed. and State Consts. at 3091.
231 See Halbrook, Right
to Bear at 23-25. Some in England shared this concern. See
Schwoerer, 76 Chi.-Kent L. Rev. at 52-53.
232 Pa. Const. art. IX, 20 & 21,
reprinted in 5 Fed. and State Consts. at 3101. Section
22 addressed standing armies and civilian control of the military. Kentucky,
admitted in 1791 as the fifteenth state, copied this language on the right
verbatim. See Ky. Const. art. XII, 23 (1792), reprinted
in 3 Fed. and State Consts. at 1275.
233 Pa. Const. art. VI, 2, reprinted
in 5 Fed. and State Consts. at 3099. Kentucky also copied
this provision. See Ky. Const. art. VI, 2, reprinted in
3 Fed. and State Consts. at 1271.
234 Reprinted in 5 Fed.
and State Consts. at 2788.
236 State v. Huntly,
25 N.C. (3 Ired.) 418, 1843 WL 891, at *2. Another early decision recognized
that the right of "free people of color" to bear arms might be abridged
- but only because the court believed that they "cannot be considered
as citizens," or at least not full citizens, not because of any exclusion
from the militia (a subject the court did not mention). State
v. Newsom, 27 N.C. (5 Ired.) 250, 1844 WL 1059, at *1,
237 See infra, note 239.
238 This was Richard Caswell, who became
the first governor. Another member of the committee also had been one
of the three delegates. See Halbrook, Right to Bear
at 29-31; see also 5 Fed. and State Consts. at 2794.
239 Vt. Const. ch. I, 15, reprinted
in 6 Fed. and State Consts. at 3741. The constitution also
asserted independence from New York. Id. at 3738-39 (preamble);
see Halbrook, Right to Bear at 37 ("Recognition of bearing
arms to defend the state was more radical than self-defense, since it
justified action by armed private citizens to defend an incipient state
from the constituted authorities of both New York and Great Britain.").
The First Congress admitted Vermont as the fourteenth State, see
Act of Feb. 18, 1791, 1 Stat. 191, in time for it to ratify the Bill of
Rights, see Schwartz, 2 Bill of Rights at 1202-03.
240 Vt. Const. ch. I, 14, reprinted
in 6 Fed. and State Consts. at 3741 (speech); id.
9, at 3740-41 (duty of personal service, and conscientious objectors);
id. ch. II, 5, at 3742 (militia of "freemen . . . and their
sons"); id. 39, at 3748 (hunting).
241 See Vt. Const. ch. I,
10, 15 & 18 (1786), reprinted in 6 id. at 3753 (duty
of personal service and conscientious objectors, speech, and arms, respectively);
id. ch. II, 19, at 3758 (militia, including all "inhabitants"
rather than all freemen and their sons); id. 37, at 3760 (hunting);
Vt. Const. ch. I, arts. 9, 13 & 16 (1793), reprinted in id.
at 3763-64 (duty of personal service and conscientious objectors,
speech, and arms, respectively); id. ch. II, 22, at 3768 (militia);
id. 40, at 3770 (hunting).
242 Reprinted in 3 Fed.
and State Consts. at 1892.
243 Mass. Const. pt. I, art. 1 (1780),
reprinted in id. at 1889.
244 See Halbrook, Right
to Bear at 41-42.
245 Mass. Const. pt. I, art. 19, reprinted
in 3 Fed. and State Consts. at 1892. An early decision of
the State's supreme court, interpreting the Declaration's protection of
the individual's "liberty of the press" as not protecting common-law libel,
drew a parallel to "the right to keep fire arms, which does not protect
him who uses them for annoyance or destruction." Commonwealth
v. Blanding, 20 Mass. 304, 338 (1825). Whether the court
had in mind Article 17 or the right from England is unclear, but in either
case it recognized a right of individuals to keep arms.
246 In addition, the purposes of calling
out the militia seem to have been narrower than whatever "for the common
defence" signified, as the governor was authorized to call it out "for
the special defence and safety of the commonwealth," which appears to
have meant war, invasion, or rebellion. Mass. Const. pt. II, ch. 2,
1, art. 7, reprinted in 3 Fed. and State Consts. at
247 Schwartz, 1 Bill of Rights
at 337. The only change between their draft and the final was the deletion
of "standing" before "armies." Id. at 372 (draft); id.
at 364 (deletion).
248 As with North Carolina's emphasis
on the "defence of the State," Massachusetts's emphasis on the "common
defence" may have represented the assertion of a right that went beyond
the traditional English one. "Common" had been deleted from a similar
clause ("for their common defence") in a draft of the English Declaration,
perhaps at the urging of William of Orange or conservative Lords, who
objected to suggestion of a popular right to check royal power. See
Malcolm, To Keep and Bear at 119-21.
249 Madison, Notes of Debates
at 630 (Sept. 12).
250 U.S. Const. art. I, 8, cls. 15
& 16, and art. II, 2, cl. 1. The Ninth Circuit claims that there
was "disagreement among the delegates" over whether Congress's power to
arm the militias "should be exclusive or concurrent" with the States.
Silveira, 312 F.3d at 1079. But the court only cites Perpich
v. Department of Defense, 496 U.S. 334, 340 (1990), which does not
support this claim; nor do the debates of the Convention, where the focus
was on the extent of any federal authority to establish uniform discipline
and regulation of the militia (including providing for arms), not on whether
the States would retain concurrent authority in areas where federal power
was granted. For the two chief debates, see Madison, Notes
of Debates at 478, 483-85 (Aug. 18); id. at 512-16 (Aug.
23). Similarly, the Third Circuit has cited, in support of the collective-right
view, a statement by Roger Sherman that States should retain power to
use their militias for internal needs. See United States
v. Tot, 131 F.2d 261, 266 (1942), rev'd on other
grounds, 319 U.S. 463 (1943) (citing 5 Elliot's Debates
445 (2d ed. 1901)). We fail to see how this statement supports that view,
particularly given that no one appears to have disagreed with Sherman;
that he served on the committee that drafted what became the final version
of Article I, Section 8, Clause 16, Notes of Debates at 480,
485 (Aug. 18); 494-95 (Aug. 21), and generally supported its compromise,
id. at 513-14; and that he saw no need for amendments, see
A Countryman No. 2 (1787), reprinted in 14 Doc.
Hist. at 172 (John P. Kaminski & Gaspare J. Saladino eds., 1983);
A Countryman No. 3 (1787), reprinted in id.
at 296; A Citizen of New Haven (1789), reprinted in Creating
the Bill of Rights: The Documentary Record from the First Federal Congress
220 (Helen E. Veit et. al. eds., 1991) ("Veit, Creating").
251 The Ninth Circuit in Silveira
did not mention this latter set of proposals, and the court presented
the comments in the ratification debates most relevant to these separate
proposals as if they instead related to the Second Amendment. See
312 F.3d at 1082-83; see also id. at 1078 (claiming without
citation that "[t]he compromise that the convention eventually reached,
which granted the federal government the dominant control over the national
defense, led ultimately to the enactment of the counter-balancing Second
252 Robertson, 165 U.S. at 281
(discussing Bill of Rights in general); see Silveira,
328 F.3d at 584 (Kleinfeld, J.) ("The Second Amendment was not novel,
but rather codified and expanded upon long established principles.").
253 See, e.g., 2 Complete
Anti-Fed. at 7, 11 (public objections of Mason and Gerry); Va. Ratif.
Conv., in 10 Doc. Hist. at 1212 (remarks of Patrick
Henry, June 12, 1788) (invoking English Bill and state declarations);
"Address by Sydney" (Robert Yates) (1788), reprinted in 6 Complete
Anti-Fed. at 107, 109 (similar to Henry). One of the leading arguments
of this point was by the Federal Farmer. See Fed. Farmer
No. 16 (1788), reprinted in 2 Complete Anti-Fed.
254 See, e.g., Federalist No. 84,
at 575-81 (A. Hamilton); Marcus No. 1, Answer to Mr. Mason's Objections
(James Iredell) (1788), reprinted in 1 Debate on
the Const. at 363-64; Marcus No. 4 (1788), reprinted
in id. at 387-90; America, To the Dissenting Members
of the late Convention of Pennsylvania (Noah Webster) (1787), reprinted
in 1 Debate on the Const. at 555-60.
255 As one Federalist criticized Luther
Martin, an Anti-Federalist who had been a delegate to the Constitutional
Convention: "One hour you sported the opinion, that Congress, afraid of
the militia resisting their measures, would neither arm nor organize them:
and the next, as if men required no time to breathe between such contradictions,
that they would harass them by long and unnecessary marches, till they
wore down their spirit and rendered them fit subjects for despotism."
The Landholder No. 10 (1788), reprinted in 16 Doc.
Hist. at 265, 267 (John P. Kaminski & Gaspare J. Saladino eds.,
256 Fed. Farmer No. 18
(1788), reprinted in 2 Complete Anti-Fed at 342;
Va. Ratif. Conv., in 10 Doc. Hist. at 1276 (remarks
of Henry, June 14, 1788).
257 See, e.g., regarding all
of these concerns, "John De Witt" No. 5 (1787), reprinted
in 4 Complete Anti-Fed. at 36-37 (warning that federal government
would neglect to arm militia, not trusting the people, and enforce unjust
laws through standing army); Pa. Ratif. Conv., in 2 Doc.
Hist. at 509 (remarks of John Smilie, Dec. 6, 1787) ("When a select
militia is formed; the people in general may be disarmed."); Fed.
Farmer No. 3 (1787), reprinted in 2 Complete Anti-Fed.
at 242 (discounting safeguard of armed "yoemanry of the people," whom
Congress would undermine through creating select militia); The Genuine
Information Delivered to the Legislature of the State of Maryland Relative
to the Proceedings of the General Convention Lately Held at Philadelphia;
By Luther Martin, Esquire (1788), reprinted in 2 Complete
Anti-Fed. at 59-60 (warning that Congress would use its militia and
army powers "to subvert the liberties of the States
and their citizens, since we [allow an unlimited standing army
and,] by placing the militia under its power, enable it to leave
the militia totally unorganized, undisciplined, and
even to disarm them"); Va. Ratif. Conv., in 10 Doc.
Hist. at 1271 (remarks of Mason, June 14, 1788) (warning that Congress
would "disarm the people" gradually, rather than "openly," by "totally
disusing and neglecting the militia"). Henry repeatedly denounced the
allegedly exclusive power. See 9 Doc. Hist. at 957 (June
5) ("Of what service would militia be to you, when most probably you will
not have a single musket in the State; for as arms are to be provided
by Congress, they may or may not furnish them."); id. at 1066
(June 9) ("The power of arming the militia, and the means of purchasing
arms, are taken from the States . . . . If Congress will not arm them,
they will not be armed at all.").
258 See, e.g., Federalist
No. 46, at 321-22 (J. Madison) (contrasting the "advantage of being
armed, which the Americans possess," with the circumstances in "several
kingdoms of Europe . . . [where] the governments are afraid to trust the
people with arms"); An American Citizen IV: On the Federal Government
(Tench Coxe) (1787), reprinted in 13 Doc. Hist. at 433
(John P. Kaminski & Gaspare J. Saladino eds., 1981) (arguing that,
if tyranny threatened, the "friends to liberty . . . using those
arms which Providence has put into their hands, will make a solemn appeal
'to the power above'"); "A Citizen of America," An Examination
Into the Leading Principles of the Federal Constitution (Noah Webster)
(1787), reprinted in 1 Debate on the Const. at
155 ("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").
259 John Marshall, for example, provided
a standard analysis: "The truth is, that when power is given to the General
Legislature, if it was in the State Legislatures before, both shall exercise
it; unless there be an incompatibility in the exercise by one, to that
by the other; or negative words precluding the State Governments from
it. But there are no negative words here. It rests therefore with the
States." Va. Ratif. Conv., in 10 Doc. Hist. at 1307
260 Delaware already had ratified unanimously.
After Pennsylvania's vote, New Jersey, Georgia, and Connecticut ratified
by large majorities. No proposed amendments emerged from these conventions.
See Schwartz, 2 Bill of Rights at 627, 674. Maryland
ratified on April 26, 1788, without proposing amendments, although a committee
had approved several, including a prohibition on subjecting the militia
to martial law "except in time of war, invasion, or rebellion." The committee
understood the militia to consist of "all men, able to bear arms," which
would make martial law for the militia a pretext for applying it to the
populace. See id. at 729-30, 734-35.
261 Schwartz, 2 Bill of Rights
at 665. Tench Coxe, in a critique of the Minority, described this proposal
as a "provision against disarming the people." "Philanthropos,"
Penn. Gazette (1788), reprinted in 15 Doc. Hist.
at 391, 393.
262 Schwartz, 2 Bill of Rights
at 665. Noah Webster suggested that the Minority also propose "[t]hat
Congress shall never restrain any inhabitant of America from eating and
drinking, at seasonable times." His serious criticism of Article
8 was that it was useless because aimed at game laws, which had never
existed in America. He did not comment on Article 7. "America," Daily
Advertiser (1787), reprinted in 1 Debate on the Const.
263 Schwartz, 2 Bill of Rights
264 Id. at 671-72.
265 Id. at 674-75, 681. South
Carolina ratified in May 1788 without proposing any relevant amendments.
See id. at 739, 756-57.
266 The convention had adjourned in February
1788 to avoid a vote against ratification. When it reconvened in the summer,
it ratified by a vote of 57 to 47. See id. at 758.
267 Id. at 761; see id.
at 758 (noting that the first nine New Hampshire amendments "were taken
almost verbatim from those proposed by Massachusetts").
268 Id. at 758. See
U.S. Const. art. VII.
269 See Schwartz, 2 Bill
of Rights at 762, 764.
270 See id. at 765-66.
271 Schwartz, 2 Bill of Rights
at 842. Mason drafted this provision. See 9 Doc. Hist.
at 821 (reprinting Mason's draft). Two articles later, Virginia also proposed
exemptions for those "religiously scrupulous of bearing arms," again borrowing
from Pennsylvania's Declaration. Schwartz, 2 Bill of Rights at
272 Id. at 843.
273 Id. at 912. New York did
not propose any protection for conscientious objectors.
274 Id. at 915, 918.
275 Id. at 932-33, 968-69; Halbrook,
Right to Bear at 33-34.
276 First Inaugural Address (Apr. 30,
1789), reprinted in 1 A Compilation of the Messages
and Papers of the Presidents 43, 45 (James D. Richardson ed., 1897).
277 Speech of Madison (June 8, 1789),
reprinted in Veit, Creating at 78-79.
279 See Letter from Rep. Fisher
Ames to George R. Minot (July 23, 1789) (discussing North Carolina), in
Veit, Creating at 269; Letter from Rep. William L. Smith to Edward
Rutledge (Aug. 9, 1789) (North Carolina; noting disposition of House to
"agree to some, which will more effectually secure private rights"), in
id. at 272-73; Letter from Rep. Frederick A. Muhlenberg to Benjamin
Rush (Aug. 18, 1789) (Pennsylvania Minority), in id. at 280.
280 Letter from Lee to Henry (May 28,
1789), in Veit, Creating at 241.
281 Letter from Grayson to Henry (June
12, 1789), in Veit, Creating at 249. See also
Letter from Joseph Jones to Madison (June 24, 1789), in id. at
253 (describing Madison's proposed amendments as well "calculated to secure
the personal rights of the people").
282 Madison Resolution (June 8, 1789),
reprinted in Veit, Creating at 12.
283 See above, Part III.B.2,
at note 225 (discussing differences from Virginia Declaration).
284 12 Madison Papers at 193
(emphasis added); see id. at 194-95; Speech of Madison, reprinted
in Veit, Creating at 80.
285 Compare Speech of Madison,
reprinted in Veit, Creating at 80 (discussing "the declaration
of rights" of England), with id. at 84 (concluding by describing
his proposals "as a declaration of the rights of the people"). In his
notes, although apparently not in his speech, he pointed out that the
English right to arms was limited to Protestants. 12 Madison Papers
286 See Veit, Creating
at 12 (Madison's proposal); id. at 80, 84 (Madison's speech).
His separate proposal of what would become the Tenth Amendment was to
be placed between Articles 6 and 7, as its own article. Id. at
287 The arguable exception, as discussed
above in Part II.D.1 regarding the Establishment Clause, was a prohibition
on "any national religion." Madison proposed other amendments that did
not relate to private rights, such as altering the ratio of representation
in the House of Representatives and banning increases of legislator pay
without an ensuing election, but he proposed to place these elsewhere
in the Constitution. Id. at 12.
288 Letter from Ames to Thomas Dwight
(June 11, 1789), in Veit, Creating at 247.
289 Letter from Ames to George R. Minot
(June 12, 1789), in Veit, Creating at 247-48. The right
of "changing the government" to which Ames referred was a provision, in
a separate section of Madison's proposal, affirming the right of the people
"to reform or change their government, whenever it be found adverse or
inadequate to the purposes of its institution." Regarding such usage of
the "the people," see Part II.A, above.
290 Philadelphia Fed. Gazette
at 2 (June 18, 1789), excerpted in Kates, 82 Mich. L. Rev. at
224 & nn.81-82. The Remarks were reprinted within three weeks
in newspapers in Boston (on the front page of a special July 4 issue)
and New York. See Stephen P. Halbrook & David B. Kopel, Tench
Coxe and the Right to Keep and Bear Arms, 1787-1823, 7 Wm. &
Mary Bill Rts. J. 347, 367 (1999).
291 See Letter from Coxe to
Madison (June 18, 1789), in Veit, Creating at 252-53;
Letter from Madison to Coxe (June 24, 1789), in 12 Madison
Papers at 257; see also Veit, Creating at 254 (excerpting
292 See Stephen P. Halbrook,
That Every Man Be Armed: The Evolution of a Constitutional Right
77 (1984) (noting that author's "search of the literature of the time
reveals that no writer disputed or contradicted Coxe's analysis").
293 Letter from Nasson to Thatcher (July
9, 1789), in Veit, Creating at 260-61 [sic]; see
id. at 309 (brief biography of Nasson).
294 Veit, Creating at
295 Id. at 6, 102-03; see
Letter from Madison to Wilson Cary Nicholas (Aug. 2, 1789), in
id. at 271 (referring to "the concord" of the committee); Letter
from Roger Sherman to Henry Gibbs (Aug. 4, 1789), in id. (another
committee member, predicting that committee's proposals "will probably
be harmless & Satisfactory to those who are fond of Bills of rights,"
although noting his desire to place them at the end of the Constitution).
296 See id. at
30. The separate placement of what would become the Tenth Amendment remained
unchanged, and Madison's other proposals, noted above, also remained separate.
297 Letter from Rep. Frederick A. Muhlenberg
to Benjamin Rush (Aug. 18, 1789), in Veit, Creating
at 280 (writing after the first day of debate that involved the arms provision,
in which no changes were made, and describing proposed amendments to date
as "nearly the same as" the committee "had reported them").
298 "From the Boston Indep. Chronicle,"
Philadelphia Indep. Gazetteer 2 (Aug. 20, 1789), excerpted in
Halbrook, Right to Bear at 45.
299 At the Constitutional Convention,
Gerry had bitterly opposed the federal powers over the militia in Article
I, Section 8, Clause 16. Madison, Notes of Debates at 513-16
(Aug. 23). Regarding his Anti-Federalist writings during ratification,
see Schwartz, 1 Bill of Rights at 464-65, 480-93. He
had attended the Massachusetts Convention as an invited observer and helped
lead the opposition. Id. at 465. Presumably, therefore, he supported
Samuel Adams's proposed amendments, even though he also desired additional
ones. See id. at 486-89.
300 Remarks of Gerry (Aug. 17, 1789),
reprinted in Veit, Creating at 182.
301 See Veit, Creating
302 See id. at
198-99. The addition may have been an effort to partially satisfy Representative
Scott, by ensuring that Congress could at least require conscientious
objectors to provide an equivalent. Unlike Gerry, he objected to the exemption
because he worried that citizens, rather than Congress, would abuse it,
with the result that "you can never depend upon your militia." He added,
"This will lead to the violation of another article in the constitution,
which secures to the people the right of keeping arms, as in this case
you must have recourse to a standing army." Id. at 198. While
this cryptic and elliptical comment conceivably might be construed to
suggest a quasi-collective right, its meaning is far from clear, and we
find little probative value in it. The Fifth Circuit in Emerson reasonably
concluded that Scott's comment "does not plainly lend support to any of
the Second Amendment models," 270 F.3d at 248, and the Ninth Circuit in
Silveira did not cite it, see 312 F.3d at 1085-86.
303 See Veit, Creating
at 117-28 (debate of Aug. 13, 1789); id. at 197-98 (debate of
Aug. 19, 1789).
304 Id. at 37-41.
305 "The most prolific and one of the
best known of the Anti-Federalist essayists was the Centinel, whose essays
appeared in the Philadelphia Independent Gazetteer and the Philadelphia
Freeman's Journal and were widely reprinted." 2 Complete
Anti-Fed. at 130. He published twelve essays as Centinel Revived.
306 Centinel (Revived), No. 29
(1789), quoted in Emerson, 270 F.3d at 255.
307 The Senate combined provisions (such
as in creating what became the First and Fifth Amendments) and rejected
House provisions regulating appeals to the Supreme Court; applying religion,
speech, press, and criminal-jury protections to the States; and prohibiting
violations of the separation of powers. See Schwartz, 2 Bill
of Rights at 1145-47 (summarizing changes); compare Veit,
Creating at 37-41 (House proposals), with id.
at 47-49 (Senate).
308 See Veit, Creating
at 39 n.13; Schwartz, 2 Bill of Rights at 1153-54 (Sen. Journal).
309 See Uviller & Merkel,
76 Chi.-Kent L. Rev. at 507 (theorizing that vote on common-defense clause
was prompted by desire to avoid either redundancy or the objection that
the amendment failed to protect militia service in defense of a State,
as opposed to the "common" national defense). The deletion of the troublesome
conscientious-objector clause could have been simply because of a desire,
as voiced in the House, to leave the matter to Congress's discretion,
see, e.g., Remarks of Rep. Benson (Aug. 17, 1789), reprinted
in Veit, Creating at 184, without affecting the right one
way or the other.
310 One could argue that the definition
was considered superfluous. See Schwartz, 2 Bill of Rights
at 1145 (observing that Senate in its revisions of the House proposals
generally "tighten[ed] up the language of the House version, striking
out surplus wording and provisions."); Part II.C.2-4 (discussing meaning
of "Militia" at the time).
311 Schwartz, 2 Bill of Rights
at 1152 (Sen. Journal).
312 See Veit, Creating
at xii; Letter from Madison to Jefferson (Mar. 29, 1789), in id.
313 Letter from Lee to Henry (Sept. 14,
1789), in id. at 295. The Senate also, like the House,
had rejected a proposal to append to what became the Second Amendment
a supermajority requirement for peacetime standing armies, a provision
to help ensure that Congress would depend on and therefore provide for
the militia. Schwartz, 2 Bill of Rights at 1149 (Sen. Journal);
see Veit, Creating at 38-39 n.13.
314 Letter from Lee and Grayson to the
Speaker of the Virginia House of Delegates (Sept. 28, 1789), in
Veit, Creating at 299.
315 See id. at 49-50
(Conference Committee Report and House Resolution); id. at 296-98
(various letters of Sept. 1789, including by Madison, detailing concerns
with certain Senate revisions but not mentioning Second Amendment); Schwartz,
2 Bill of Rights at 1171-73 (regarding presidential transmittal).
316 See Schwartz, 2 Bill
of Rights at 1171-72 ("[W]e know practically nothing about what went
on in the state legislatures during the ratification process" and "[e]ven
the contemporary newspapers are virtually silent."); Emerson,
270 F.3d at 255 (without comment, omitting discussion of ratification);
Silveira, 312 F.3d at 1086 (same).
317 Schwartz, 2 Bill of Rights
at 1171, 1203. One of the two not then ratified was ratified in 1992 as
the Twenty-Seventh Amendment, which relates to congressional pay. The
other addressed the size of the House.
318 And even if one believes, contrary
to the historical record, that Anti-Federalists' concerns about the militia
were resolved in their favor, the Anti-Federalists' insistence on the
superiority of a citizen militia to a select militia, noted at the beginning
of Part III.C, would lead to the understanding of the Amendment's prefatory
clause that we set out in Part II.C, an understanding that is, as we explained,
fully consistent with the individual-right view of the Second Amendment.
319 See Clyde N. Wilson, Forward,
in St. George Tucker, View of the Constitution of the United
States, with Selected Writings at viii-ix (1999); Paul Finkelman
& David Cobin, An Introduction to St. George Tucker's Blackstone's
Commentaries, in 1 Tucker's Blackstone at v-xii; Editor's
Preface in id. at v.
320 1 Tucker's Blackstone, Note D,
at 300 (ellipsis in original).
322 Id. at 357; see
id. at 315-16 (explaining that, whereas in England, "the game-laws,
as was before observed, have been converted into the means of disarming
the body of the people," and statutes have restricted assemblies, the
Constitution will not "permit any prohibition of arms to the people; or
of peaceable assemblies by them"); id. at 289 (describing hypothetical
law "prohibiting any person from bearing arms" as violating the Second
323 2 id. at *143-44 & nn.40-41.
See also id. at *145 n.42 (again criticizing game laws).
324 3 id. at *414 n.3; see
also, above, Parts III.A (discussing right to arms in England)
and III.B.2 (discussing doubts whether the relaxation of English game
laws in 1700's succeeded as a practical matter in enabling commoners to
325 1 id. at 273. Tucker thought
the federal powers in Article I, Section 8, Clause 16, to provide for
"organizing" and "disciplining" the militia were exclusive, id.
at 180-81, but that States retained "concurrent, though perhaps subordinate"
powers to provide for "arming" their militias and "to call them forth
when necessary for their internal defence," id. at 182, 183.
His only other reference to the Second Amendment in connection with the
militia was in a note to Blackstone's discussion of the militia, in which
Tucker collected all references in the Constitution to the militia, along
with the Third Amendment, Virginia laws, and the federal Militia Act.
2 id. at *409 n.1.
326 See Hardy, 9 Harv. J.L.
& Pub. Pol'y at 613. Rawle did agree to be United States
Attorney for the District of Pennsylvania. E.g., United States
v. Fries, 3 U.S. (3 Dall.) 515, 517 (C.C.D. Pa. 1799).
327 William Rawle, A View of the
Constitution of the United States of America 115 (2d ed. 1829; reprint
1970) (font altered; emphasis added).
328 Id. at 125-26.
329 Id. at 126. Regarding Blackstone,
see Part III.A above. For Tucker's annotations of some of Blackstone's
discussions of improper uses of arms, see 5 Tucker's Blackstone
at *126, 142-149, 175. Regarding the Pennsylvania Minority, Adams, and
New Hampshire, see Part III.C.1 above.
330 Rawle, A View of the Const.
at 153. Significantly, in separately discussing the Militia Clauses of
Article I, Section 8, Rawle made no mention of the Second Amendment. Id.
331 Ronald D. Rotunda & John E. Nowak,
Introduction, in Joseph Story, Commentaries on the
Constitution of the United States xi-xiv (Rotunda & Nowak eds.,
1833; reprint 1987) ("Abridgement").
332 Story, Abridgement 980-982,
333 Id. 984, at 698; see
id. 985-1011, at 698-714.
334 Id. 1001, at 708.
335 Joseph Story, 3 Commentaries
on the Constitution of the United States 1890, at 746 n.1 (1833;
reprint 1991). In United States v. Miller,
307 U.S. 174, 182 n.3 (1939), the Supreme Court included this passage
(from a later edition) in a string citation.
336 Story, 3 Commentaries
1891, at 747. In a separate chapter, the full Commentaries also
included an extended discussion of the Anti-Federalist charges leveled
against the Militia Clauses, including the charge that the federal militia
powers would be exclusive (which Story found unpersuasive). Story alluded
to the failure of proposals explicitly to protect state militia powers.
Id. 1198-1202, at 83-87.
337 Joseph Story, A Familiar Exposition
of the Constitution of the United States 450, at 319 (1840; reprint
338 Story, Abridgement 1001,
339 Henry St. George Tucker, Commentaries
on the Laws of Virginia 43 (1831).
341 The Debates in the Several State
Conventions on the Adoption of the Federal Constitution at xv (Jonathan
Elliot ed., 2d ed. 1836; reprint 1987).
342 For additional antebellum commentators,
see David B. Kopel, The Second Amendment in the Nineteenth
Century, 1998 BYU L. Rev. 1359, 1399-1403, 1435-41; see also
id. at 1397-98 (discussing Henry Tucker).
343 Houston v. Moore,
18 U.S. (5 Wheat.) 1, 16-17, 21-22 (1820) (plurality opinion of Washington,
J.); see id. at 34-36 (Johnson, J., concurring); id.
at 50-53 (Story, J., dissenting). Story dissented on the ground that the
militia law granted enforcement authority exclusively to federal courts.
Id. at 71-72.
344 12 Ky. (2 Litt.) 90, 1822 WL 1085.
The dissenting judge did not issue an opinion. See id. at *4.
345 Id. at *2.
346 The first court to depart from Bliss's
holding, the Indiana Supreme Court eleven years later in State
v. Mitchell, 3 Blackf. 229, 1833 WL 2617, at *1, did
not cite its neighboring court or otherwise explain itself, the entire
opinion being as follows: "It was held in this case, that the
statute of 1831, prohibiting all persons, except travelers, from wearing
or carrying concealed weapons, is not unconstitutional." We discuss the
later antebellum cases in the next subpart.
347 See Ky. Const. art. XIII,
25 (1850), reprinted in 3 Fed. and State Consts. at
348 Aldridge v. Commonwealth,
4 Va. (2 Va. Cas.) 447, 1824 WL 1072, at *3 (Va. Gen. Ct.).
349 5 Tucker's Blackstone at
*175 n.17(7) (listing as among the "offences against the public police,
or [e]conomy," the restriction against "any" black or mulatto "keeping
or carrying any gun-powder, shot, club, or other weapon," including a
"gun"). See also Waters v. State,
1 Gill. 302, 1843 WL 3024 (Md.) (explaining, with regard to free blacks,
that "laws have been passed to prevent their migration to this State;
to make it unlawful for them to bear arms; to guard even their religious
assemblages with peculiar watchfulness.").
350 United States v.
Sheldon, 5 Blume Sup. Ct. Trans. 337, 1829 WL 3021, at *12 (Mich.
Terr.). See also Commonwealth v. Blanding,
20 Mass. (3 Pick.) 304, 338 (1825) (invoking right to keep arms to draw
351 Johnson v. Tompkins,
13 F. Cas. 840, 850 (C.C.E.D. Pa. 1833) (No. 7,416).
352 13 Tenn. (5 Yer.) 356, 1833 WL 1227.
353 1833 WL 1227, at *1.
354 Id. For more regarding the
relevant common law, see the discussion in State v.
Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2-3 (surveying
common law and noting "that the carrying of a gun per se constitutes
no offence"). See also State v. Langford,
10 N.C. (3 Hawks) 381, 1824 WL 380; 4 Blackstone at *149; William Hawkins,
1 A Treatise on the Pleas of the Crown ch. 63, 9, at 136 (1724;
reprint 1972). An English case that the court cited in Huntly,
predating the English Declaration of Rights, had construed a seemingly
restrictive medieval statute as only punishing "people who go armed to
terrify the king's subjects," not all who go armed. Sir John Knight's
Case, 87 Eng. Rep. 75, 76, 3 Mod. Rep. 117 (K.B. 1686). The court
recognized that "now there be a general connivance to gentlemen to ride
armed for their security," such that violating the statute required riding
"malo animo." Id., 90 Eng. Rep. 330, 330, Comberbach Rep. 38.
355 1833 WL 1227, at *1.
356 1 Ala. 612, 1840 WL 229,
357 1840 WL 229, at *2.
358 Id. at *3.
359 Id. at *5-6.
360 Id. at *6-7; see id.
361 31 Ala. 387, 1858 WL 340,
at *1, 2.
362 1 Ga. (1 Kelly) 243, 1846 WL 1167,
at *11. Georgia's constitution did not expressly protect the right to
arms. The court alluded to Barron v. Mayor & City Council
of Baltimore, 32 U.S. (7 Pet.) 243 (1833), which held that the Takings
Clause of the Fifth Amendment did not apply to the States and reasoned
that none of the Bill of Rights did, but rejected it because of the court's
own precedent, the Second Amendment's broad, non-restrictive language,
and the fundamental importance of the right. 1846 WL 1167, at *9-10.
363 Id. at *8.
364 Id. at *10.
366 Id. at *10, 9.
367 Stockdale v. State,
32 Ga. 225, 1861 WL 1336, at *3. The Texas Supreme Court before the Civil
War appears also to have viewed the Second Amendment as applying to the
States and including an individual right to own arms and use them for
self-defense and perhaps hunting. See Choate v.
Redding, 18 Tex. 579, 1857 WL 5009, at *2; Cockrum v.
State, 24 Tex. 394, 1859 WL 6446, at *6-8. In the latter case,
in which the court rejected a constitutional challenge to a sentencing
enhancement for homicide with a bowie-knife, the court did not cite any
authority, but the defendant had cited Nunn, Reid, Bliss,
and Mitchell. 1859 WL 6446, at *3.
368 5 La. Ann. 489, 1850 WL 3838, at
*1; see id. at *2 (discussing self-defense).
369 State v. Smith,
11 La. Ann. 633, 1856 WL 4793, at *1.
370 State v. Jumel,
13 La. Ann. 399, 1858 WL 5151, at *1.
371 21 Tenn. (2 Hum.) 154, 1840 WL 1554.
372 4 Ark. (4 Pike) 18, 1842 WL 331.
373 That change may have been prompted
by Nat Turner's 1831 slave rebellion, which created fears of free blacks
arming and inciting slaves. See Robert J. Cottrol & Raymond
T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration,
80 Geo. L.J. 309, 337-38 (1991).
374 1840 WL 1554, at *3.
375 312 F.3d at 1073.
376 Id. (quoting Aymette,
1840 WL 1554, at *5).
377 1840 WL 1554, at *3; see id.
at *2. As noted above in Part III.B.2, in discussing the Massachusetts
Declaration of Rights, the phrase "common defense" is not necessarily
inconsistent with a right to bear arms for private purposes.
378 1840 WL 1554, at *5. Thus the Ninth
Circuit was incorrect in contending that Aymette "reached its
conclusion primarily because of" the conscientious-objector provision,
rather than the "common defense" language. Silveira,
312 F.3d at 1073. Furthermore, Aymette's reliance on the conscientious-objector
provision was not persuasive, as our discussions of the Pennsylvania and
Vermont declarations of rights (Part III.B.2) and proposals emerging from
the Pennsylvania, Virginia, and North Carolina ratifying conventions (Part
III.C.1) showed. See also Part II.B.2 (discussing meaning of
"bear arms"). It was common in a single document to refer separately both
to the right of individuals to "bear arms" and to exemption of individuals
from the duty to "bear" them in the service of the government. In addition,
the court's assertion that a hunter could never be said to "bear" arms,
quoted above, is open to doubt, given the proposed Virginia law discussed
in Part II.B.2 and the Pennsylvania Minority Report (see Parts
II.B.2 and III.C.1), and, in any event, says nothing about persons "bearing"
arms in self-defense. The court did not cite the decision of its southern
neighbor in Reid, which appears to have been decided about six
months before; it treated its previous discussion of the right in Simpson
as dicta, 1840 WL 1554, at *5-6.
379 See above, Part III.C.2
(discussing conscientious-objector clause in draft of Second Amendment).
380 1840 WL 1554, at *4. As we noted
in the introduction of Part II.B, the Ninth Circuit, in reaffirming its
collective-right view, did not attempt to reconcile the right to "keep"
arms with its view.
381 Id. at *3, *5.
382 See id. at *4 ("the citizens
may bear [arms] for the common defence," but "the Legislature may prohibit
such manner of wearing as would never be resorted to by persons engaged
in the common defence") (emphasis added).
383 Id. at *2.
384 Id. at *3-4. Furthermore,
even if one might read the court's rejection of an individual right to
bear arms in "private defence" as foreclosing any individual
right to bear arms, two aspects of the court's reasoning (in addition
to its analysis of "bear") leave it open to question. First, the court's
account of the English right, see id. at *2, was contrary to
the text of the English Bill of Rights and Blackstone's exposition of
an individual right to arms for self-defense, and failed to recognize
that the individual English right was transplanted to America free of
England's aristocratic restrictions, as Tucker, Rawle, Story, and others
had recognized and praised. Second, faced with the defendant's provocatively
absolute claim regarding the scope of the right, see id. at *1,
the court responded with dichotomies between bearing arms by the body
of the people for the common defense and "bearing" arms for hypothetical
criminal purposes, such as terrifying people. In thus defining the question,
the court defined away the well-established third possibility - bearing
arms in legitimate self-defense - and overlooked background law prohibiting
bearing weapons for the hypothesized purposes. Compare id. at
*3-4, with Simpson, 1833 WL 1227, at *1; State
v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891; 4 Blackstone
at *145-47; Reid, 1840 WL 229, at *3, 5-6.
385 Andrews v. State,
50 Tenn. (3 Heisk.) 165, 1871 WL 3579, at *6. Andrews was the
first case in any jurisdiction to cite Aymette regarding the
right to bear arms.
386 See id. at *8 ("The Convention
of 1870, knowing that there had been differences of opinion on this question,
have conferred on the Legislature in this added clause, the right to regulate
the wearing of arms, with a view to prevent crime"); id. at *13
("Ever since the opinions were promulgated, it has been my deliberate
conviction that the exposition of the Constitution . . . in Simpson
. . . was much more correct than that . . . in Aymette . . .
.") (Nelson, J., joined by Turley, J., dissenting in part).
387 1871 WL 3579, at * 3.
388 Id. at *11.
389 Id. at *10 (finding "much
of interesting and able discussion of these questions" in Bliss,
Reid, and Nunn; explaining that in Reid and
Nunn "the general line of argument found in this opinion is maintained"
and that the court had been "aided . . . greatly by the reasoning
of these enlightened courts"); id. (describing Aymette
as "hold[ing] the same general views" as the Andrews
court) (emphasis added).
390 Id. at *8 (emphasis added).
391 Id. at *9.
392 Id. at *6-7.
393 Id. at *11.
394 Id. at *13.
395 1840 WL 1554, at *3.
396 1871 WL 3579, at *9. The court elsewhere
defined "arms" as those furthering the end of "the efficiency of the citizen
as a soldier," id. at *7, and as including not only weapons "adapted
to the usual equipment of the soldier" but also those "the use of which
may render him more efficient as such," id. at *11. The term
had to be "taken in connection with the fact that the citizen is to keep
them as a citizen" and therefore included such "as are found to make up
the usual arms of the country, and the use of which will properly train
and render him efficient in defense of his own liberties, as well as of
the State." Id. at *7.
397 Id. at *7; id.
at *11. Two judges dissented in part, criticizing Aymette and
taking a broader view than the majority based on Simpson, Bliss,
Blackstone, and Tucker. Id. at *13-15 (Nelson, J., joined by
Turney, J., dissenting in part). They argued that "for their common defense"
was equivalent to "in defense of themselves and the State." Id.
at *13-14. Similarly, "The word 'bear' was not used alone in the military
sense of carrying arms, but in the popular sense of wearing them in war
or in peace." Id.
398 E.g., Fife v.
State, 31 Ark. 455, 1876 WL 1562, at *3 (summarizing holding
and then relying on Aymette and Andrews); State
v. Wilforth, 74 Mo. 528, 1881 WL 10279, at *1 (including
Buzzard in string citation with Nunn, Jumel,
Mitchell, Owen, and Reid, and relying on Reid).
Buzzard was first cited in 1872. See State
v. English, 35 Tex. 473, 1872 WL 7422; Carroll
v. State, 28 Ark. 99, 1872 WL 1104.
399 Buzzard, 4 Ark. 18, 1842
WL 331, at *6.
400 See id. at *6
(equating the two, and adopting a single rule for evaluating restrictions).
401 See id. at *4 (explaining
that "the militia, without arms . . . might be unable to resist, successfully,
the effort of those who should conspire to overthrow the established institutions
of the country, or subjugate their common liberties" and 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"); id. at *6 ("The
act in question does not . . . detract anything from the power of the
people to defend their free state and the established institutions of
the country."); see also id. at *2 (expressly equating Second
Amendment right with rights in First); id. at *7 (noting that
Reid and Mitchell had upheld similar laws notwithstanding
constitutional provisions expressly protecting bearing arms in self-defense).
As in Aymette, the court was faced with an absolute claim that
the right was subject to no restrictions, and responded similarly. See
id. at *3, *5.
402 See Carroll, 1872
WL 1104, at *2 (upholding conviction for carrying deadly weapon concealed
and explaining Buzzard as holding that "a constitutional right
to bear arms in defense of person and property does not
prohibit the legislature from making such police regulations as may be
necessary for the good of society, as to the manner in which such arms
shall be borne"; adding that a "citizen" may not "use his own property
or bear his own arms in such way as to injure the property or
endanger the life of his fellow citizen") (emphases added); Fife,
1876 WL 1562, at *3, 4 (restating Buzzard's holding, and upholding
conviction for carrying pistol by construing statute only to apply to
pistol that "is usually carried in the pocket, or of a size to be concealed
about the person, and used in private quarrels, and brawls, and not such
as is in ordinary use, and effective as a weapon of war, and useful and
necessary for 'the common defence'"); Wilson v. State,
33 Ark. 557, 1878 WL 1301, at *2 (reversing conviction for carrying side
arms, where trial court had refused jury instruction to acquit if pistol
was "army size . . . such as are commonly used in warfare"; citing Fife
and Andrews and explaining that "to prohibit the citizen
from wearing or carrying a war arm, except upon his own premises
or when on a journey . . . , or when acting as or in aid of an officer,
is an unwarranted restriction upon his constitutional right to keep
and bear arms") (emphases added).
403 1842 WL 331, at *7 (Dickinson, J.,
concurring). See also Kopel, 1998 BYU L. Rev. at 1425 ("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.").
404 1842 WL 331, at *7 (Dickinson, J.);
see id. at *10 ("The act . . . does not, in my opinion, conflict
with any of the powers of the General Government.").
405 Id. at *7, 9. It is unclear
what significance he gave to the state constitution's provision. See
id. at *9.
406 Id. at *8.
407 Id. at *10 (Lacy, J., dissenting).
408 Id. at *14. See also
id. (arguing that the right has at times "been the only means by
which public liberty or the security of free States has been vindicated
409 Id. at *10.
410 Id. at *12-14.
411 See, e.g., Laws of Miss.
ch. 23, 1, at 165 (enacted Nov. 29, 1865), reprinted in Stephen
P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to
Bear Arms, 1866-1876, at 2 (1998). See generally
Halbrook, Freedmen at 2-3, 5, 8-12, 15-16, 18-20, 22-23, 26-32,
34-37 (collecting reports of army and Freedmen's Bureau officers to President
and Congress, petitions to Congress, and other public materials documenting
attempts in former Confederacy in 1865 and 1866 to disarm blacks, including
through legislation and by militias).
412 Cong. Globe, 39th Cong.,
1st Sess. 474 (1866). See also id. at 478 (Sen.
Saulsbury, lamenting this effect of the Act). Regarding Trumbull, see
Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth
Amendment 32 (2d ed. 1997).
413 Cong. Globe at 1838-39 (Rep. Clarke);
id. at 1266 (Rep. Raymond). See also id. at
1629 (Rep. Hart, explaining that Act would guarantee to free blacks "[a]
government . . . where 'no law shall be made prohibiting the free exercise
of religion'; where 'the right of the people to keep and bear arms shall
not be infringed'").
414 Id. at 1182.
415 Id. at 2765 (Sen. Howard).
416 See Halbrook, Freedmen
at 36 (collecting excerpts).
417 Berger, Government
by Judiciary at 30, 30-39, 53-54. Berger does not specifically mention
the right to keep and bear arms. See, e.g., id. at 166-69
(addressing Sen. Howard's statement but omitting his listing of rights).
418 Section 1 of the Civil Rights Act
declares all those born in the United States to be citizens, grants "the
same right, in every State and Territory in the United States . . . as
is enjoyed by white citizens" with regard to certain enumerated aspects
of property, contracting, and lawsuits, and guarantees "full and equal
benefit of all laws and proceedings for the security of person and property."
14 Stat. 27 (1866). In light of Blackstone's understanding and the context
of the black codes, any laws regarding the ability to keep or bear arms
would presumably be "laws . . . for the security of person and property"
and therefore would need to be equal for all citizens regardless of color.
419 Act of July 16, 1866, 14, 14 Stat.
173, 176 (emphasis added). The President's reasons for his veto did not
involve any disagreement with Congress regarding this right. See
Veto Message (July 16, 1866), reprinted in 8 A Compilation
of the Messages and Papers of the Presidents 3620 (James D. Richardson
420 Act of Mar. 2, 1867, 6, 14 Stat.
485, 487. The President did inform the House that he was signing under
"protest" because this provision, and another to which he objected, were
included in an essential appropriation bill. See Letter to the
House of Representatives (Mar. 2, 1867), reprinted in 8 Messages
and Papers at 3670. Regarding the militia provision, he objected
that it "denies to ten States of this Union their constitutional right
to protect themselves in any emergency by means of their own militia."
It may be that in his constitutional objection he had in mind Article
I, Section 10's implicit recognition of the prerogative of States to defend
themselves with their militias in cases of invasion or imminent danger.
See Part II.D.2 above (discussing ways in which original Constitution
recognizes that States will have and be able to use militias).
421 The Senate debate is summarized from
the Congressional Globe in Halbrook, Freedmen at 68-69.
422 See id. at 69 ("Astonishingly,
while still waiving the bloody shirt and depriving Southerners of suffrage,
Republicans were unwilling to deny the right to have arms to ex-Confederates.");
Nelson Lund, Book Review, Outsider Voices on Guns and the Constitution,
17 Const. Comm. 701, 713 (2000) (reviewing Halbrook) ("This incident perfectly
illustrates why the Second Amendment had been adopted in the first place.").
423 See Kates, 82 Mich. L. Rev.
at 243. Among Cooley's many works was to prepare the fourth edition of
Story's unabridged Commentaries, published in 1873.
424 Thomas Cooley, General Principles
of Constitutional Law in the United States of America 271 (1880).
Cooley cited 1 Tucker's Blackstone at 300, which praises the
right in the Second Amendment as "the true palladium of liberty" and,
paralleling Blackstone, ties it to the natural "right of self defence."
See above, Part IV.A.
425 Rawle, View of the Const.
at 125, discussed above in Part IV.A.
426 He added, citing Andrews
(which had not interpreted the Second Amendment), that the Amendment protected
the keeping of arms "suitable for the general defence of the community
against invasion or oppression," whereas "the secret carrying of those
suited merely to deadly individual encounters may be prohibited." Cooley,
General Principles at 271-72.
427 Id. at 88-89.
428 See Kopel, 1998 BYU L.
Rev. at 1462.
429 Thomas Cooley, A Treatise on
the Constitutional Limitations Which Rest Upon the Legislative Power of
the States of the American Union 35-36 (1868).
430 Id. at 350; see id.
at 295 (chapter title). Miller cited this section. See 307
U.S. at 182 n.3 (citing "Cooley's Constitutional Limitations, Vol. 1,
p. 729," likely the 8th edition, published well after Cooley's death).
431 Cooley, Constitutional Limitations
432 See Presser v.
Illinois, 116 U.S. 252, 264-65 (1886); see also United
States v. Cruikshank, 92 U.S. 542, 553 (1876);
Logan v. United States, 144 U.S. 263, 286-87
(1892); Maxwell v. Dow, 176 U.S. 581, 597 (1900).
As noted above in Part I, the federal Government did not regulate private
firearms until 1934.
433 165 U.S. 275, 281-82 (1897).
434 83 P. 619, 620 (Kan. 1905).
435 See id. As shown in Parts
III.B.2 and III.C.1, however, there was nothing unusual in combining such
declarations with an individual right to arms.
436 See 83 P. at 620. The Fifth
Circuit in Emerson criticized Salina, to the extent
that it was endorsing a quasi-collective-right view, as "constru[ing]
the constitutional provision as saying no more than that the citizen has
a right to do that which the state orders him to do and thus neither grants
the citizen any right nor in any way restricts the power of the state."
It found such a criticism "especially applicable to the theory that such
state constitutional provisions grant rights only to the state,"
noting that Salina did "not appear even to recognize, much less
attempt to justify, the anomaly of construing a constitutional declaration
of rights as conferring rights only on the state which had them anyway."
270 F.3d at 231 n.30 (emphasis added). In the context of the right to
keep and bear arms in the federal Constitution, the quasi-collective-right
view appears to amount to the right of a militiaman, through a private
cause of action (or defense), to act as an agent for the interests of
the State to vindicate its power to establish and maintain an armed and
organized militia such as the National Guard. See, e.g.,
United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001).
437 Strickland v. State,
72 S.E. 260, 262 (Ga. 1911). For additional discussion of City of
Salina, see Kopel, 1998 BYU L. Rev. at 1510-12.
More Second Amendment Facts