Date: Tue, 2 May 95 00:31:05 PDT From: Keith Ingram Subject: RE: Question: SC case regarding militias To: firearms-alert@shell.portal.com, firearms-politics@cup.hp.com, fap@world.std.com --- Content-Type: TEXT/PLAIN; charset=US-ASCII >What was the Supreme Court case that decided that the National Guard is not the >militia? (I need the cite.) For those who want it, please find a well written paper on the subject of militias attached. It's written by Clayton E. Cramer and is about 87k. *************************************************** * Keith Chaucer Ingram---ingram@interaccess.com * * * * "If you won't fight for your life and liberty * * how can you expect others to do it for you?" * *************************************************** --- Content-Type: TEXT/PLAIN; SizeOnDisk=87020; name="CEC_1.TXT"; CHARSET=US-ASCII Content-Description: CEC_1.TXT Copyright Clayton E. Cramer 1991 All Rights Reserved Distribution for non-commercial purposes allowed, provided the original distribution limitations are retained, and no alterations are made to the text. Please note that this is the result of saving a Microsoft Word file without formatting, so no guarantees about loss of meaning from loss of italics. I will be sending articles based on this to American Rifleman shortly; hopefully, they will see fit to print some of them. A book length version of this is under way as well. ---------------------------------------------------------------------- "FOR THE DEFENSE OF THEMSELVES AND THE STATE": THE SECOND AMENDMENT & INDIVIDUAL RIGHTS by Clayton E. Cramer History 375 April 26, 1991 Defining The Controversy A review of recent literature concerning the Second Amendment reveals that two radically different interpretations of the Second Amendment are commonly espoused. The collectivist school asserts that the Second Amendment protected the right of the individual States to maintain military forces independent of the national government; any individual right that was protected was intended only for the purposes of maintaining those state militias, and is therefore irrelevant today, when those state militias have ceased to be a component of our national defense.2 In the words of Prof. John Levin: Thus, after over three centuries, the right to bear arms is becoming anachronistic. As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant; and as the society itself becomes more complex, the military power in the hands of the government more powerful, and the government itself more responsive, the right to bear arms becomes more futile, meaningless and dangerous.3 The individualist school claims that the Second Amendment protects an individual right "to keep and bear arms". While acknowledging Revolutionary America's concern about the dangers of standing armies, this school asserts that an individual right was also intended, and that the individual right was essential to maintaining a counterbalance to governmental power, both federal and state.4 In 1982, the Senate Subcommittee on the Constitution staff studied this question, and declared: The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.5 Is it possible, from examining contemporary documents, debates, and ideas, to determine which school is right? Unfortunately, the evidence to prove or disprove the individual right to keep and bear arms from the extant documents is more suggestive than definitive. It appears, from the paucity of materials debating it, that the "right to keep and bear arms", whatever that phrase means, was not a major controversy in 1780s America. By comparison, freedom of religion, the wisdom of standing armies in peacetime, and the morality of slavery, where considerable difference of opinion existed, were debated at great length. Was this because "the right to keep and bear arms" was not considered an individual right? Was it considered an individual right not worth disputing, because it was a given? Or was it not considered a serious enough idea to be worth arguing? This paper is a study of the origins of the Second Amendment, with the goal of understanding how such dramatically different interpretations can be derived from the historical record, and what evidence is available to understand the intent of the many "fathers" and "grandfathers" of the Second Amendment. Stipulating The Areas of Agreement The Second Amendment consists of two clauses: "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." A variety of scholars, both collectivist and individualist, have interpreted this first clause as reflecting fears that a despotic government might use a standing army as an instrument of oppression. This interpretation of the first clause has much merit; Cromwell and his New Model Army were an example of the hazards of a standing army, and how easy it was for professional soldiers to impose a dictatorial reign on the population.6 As a consequence, we will not explore in any detail or make any attempt to prove that standing armies were regarded as, at best, a necessary evil by the Framers. We will not examine in detail the romantic republican notion of an army comprised of all able-bodied men, sharing equally in the obligations of collective defense. While fascinating for what they tell us about republican ideals in 1789, they are not in dispute; only the issue of whether an individual right was also protected, remains controversial. Defining The Terms "Bear" vs. "Have" Arms Those three little words, "to bear arms", contain a controversy with which we must deal first. Prof. John Levin, arguing for a collectivist meaning for the Second Amendment, asserts that at the time of the Revolution, the phrase "to bear arms" indicated an organized military force, while "to have arms" indicated an individual's possession of such arms7. What evidence exists to prove or disprove Levin's claim? Blackstone asserted that personal security, liberty, and property were absolute rights, no other than either that residuum (remainder) of natural liberty, which is not required by the laws of the society to be sacrificed to public convenience: or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.8 Blackstone also defined the "Right to bear arms" as: The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1. W. & M., st. 2, c. 2, and it is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restraint the violence of oppression.9 Blackstone used "right to bear arms" here as a statement of an individual right, and later, "right of having and using arms" in a collective revolutionary sense10 -- completely contrary to Levin's claimed meanings. It is possible that the rough and ready colonists on the American frontier were unaware of the fine distinction between "bear" and "have"; it strains my credulity to believe that a British judge, the foremost law commentator of his day, would fail to make this distinction in his magnum opus. Further evidence that this distinction was not made in America is found in the constitutions adopted during the period 1776-1845. The constitutions of Connecticut (1818), Indiana Territory (1816), Kentucky (1792 & 1799), Michigan (1835), Mississippi (1817), Missouri (1820), Ohio (1802), Pennsylvania (1776 & 1790), Republic of Texas (1838), State of Texas (1845), Vermont (1777, 1786, and 1793), all use the phrase "bear arms" and variants of "in defence of themselves and the State". This indicates that "bear arms" was not exclusively of a military or collectivist nature. Several state constitutions adopted during the same period of time specify the "right to bear arms for the common defence" or a variant of it: Maine (1819), Massachusetts (1780), North Carolina (1776), Tennessee (1796 & 1834).11 If "to bear arms" contained within it the idea of military duty, there would be no need for the phrase "for the common defence" as a qualifier. This also suggest that "bear arms" was not necessarily of a military or collectivist nature. Arms Webster defined "arms" as: 4. In law, arms are any thing which a man takes in his hand in anger, to strike or assault another.12 This would seem like a clear-cut statement that such arms must be something that an individual can pick up and move. A sword, a dagger, a pistol, a long gun, a grenade, and a Molotov cocktail would all qualify as "arms". An artillery piece, a helicopter gunship, or a nuclear missile launching submarine would seem outside the definition, because they can not be taken "in his hand". In explaining why a pistol was "properly included with the word `arms,'" and therefore the right to carry them was protected, the North Carolina Supreme Court in State v. Kerner (1921) drew a similar line between protected and unprotected arms: It is true that the invention of guns with a carrying range of probably 100 miles, submarines, deadly gases, and of airplanes carrying bombs and other devices, have much reduced the importance of the pistol in warfare except at close range. But the ordinary private citizen, whose right to carry arms cannot be infringed upon, is not likely to purchase these expensive and most modern devices just named. To him the rifle, the musket, the shotgun, and the pistol are about the only arms which he could be expected to "bear," and his right to do this is that which is guaranteed by the Constitution.13 Militias, Individual Arms Ownership, & Resistance To Tyranny For a contemporary definition of militia, we can look to the Virginia constitution ratification convention: Mr. GEORGE MASON. Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted.14 Richard Henry Lee was appointed to the Constitutional Convention, but declined to serve. His pamphlet against ratification of the Constitution were "one of the most popular" of the time.15 His concerns about standing armies and the national government's authority to regulate state militias provide both insights into the importance of private arms in restraining national power, and the identity of the people as the militia. In discussing the danger that Congress might not represent the interests of the common people in the levying of taxes and raising of standing armies, Lee argues: Powers to lay and collect taxes and to raise armies are of the greatest moment; for carrying them into effect, laws need not be frequently made, and the yeomanry, &c. of the country ought substantially to have a check upon the passing of these laws; this check ought to be placed in the legislatures, or at least, in the few men the common people of the country, will, probably, have in congress, in the true sense of the word, "from among themselves." It is true, the yeomanry of the country possess the lands, the weight of property, possess arms, and are too strong a body of men to be openly offended -- and, therefore, it is urged, they will take care of themselves, that men who shall govern will not dare pay any disrepect to their opinions.16 But recognizing that slow change is frequently capable of lulling the population to sleep in a way that radical change will not: It is easily perceived, that if they have their proper negative upon passing laws in congress, or on the passage of laws relative to taxes and armies, they may in twenty or thirty years be by means imperceptible to them, totally deprived of that boasted weight and strength: This may be done in a great measure by congress, if disposed to do it, by modelling the militia. Should one fifth or one eighth part of the men capable of bearing arms, be made a select militia, as has been proposed, and those the young and ardent part of the community, possessed of but little or no property, and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenceless.17 Further evidence of the identity of the militia as "the people", and not just a small part of the population, can be found in James Madison's Federalist 46. Madison sought to alleviate concerns about Federal power. To that end, he pointed out that: The only refuge left for those who prophecy the downfall of the State Governments, is the visionary supposition that the Federal Government may previously accumulate a military force for the projects of ambition...18 Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the Federal Government; still it would not be going too far to say, that the State Governments with the people on their side would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield in the United States an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.19 This is a clear statement that the "militia" was not a small professional military, but the entire male population of the country, "with arms in their hands". Madison articulated a republican notion of the militia which is not necessarily supportive of or opposed to an individual right to keep and bear arms -- but clearly shows that widespread private arms ownership and training was part of the counterbalancing force required for restraining national governmental power. It is hard to imagine Madison countenancing laws that sought to restrict arms ownership by the general population. Noah Webster was another prominent Federalist pamphleteer supporting ratification of the Constitution. There were widespread concerns about tyranny from the new government: But what is tyranny? Or how can a free people be deprived of their liberties? Tyranny is the exercise of some power over a man, which is not warranted by law, or necessary for the public safety. A people can never been deprived of their liberties, while they retain in their own hands, a power sufficient to any other power in the state.20 After discussing the power of religion, and how "a singular concurrence of circumstances" had made this "as a pillar of government ... totally precluded", Webster tells us:Š Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive. In spite of all the nominal powers, vested in Congress by the constitution, were the system once adopted in its fullest latitude, still the actual exercise of them would be frequently interrupted by popular jealousy. I am bold to say, that ten just and constitutional measures would be resisted, where one unjust or oppressive law would be enforced.21 There is no clear statement of an individual right to keep and bear arms for self-defense -- but it is clear that Webster would have vigorously opposed laws that attempted to disarm the general population -- especially for the reason given by Prof. Levin at the beginning of this essay. To Levin, standing armies and police are necessarily expressions of popular will; to Webster, widespread ownership of arms was part of the mechanism by which popular will could defeat standing armies turned tyrannical. Tench Coxe, another Federalist, similarly argued that the people were sovereign against a tyrannical federal government, because they possessed the ultimate power to overthrow a government. In response to the concerns of the minority faction at the Pennsylvania ratifying convention, Coxe wrote: The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistable. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.22 Coxe not only assumed that all the people would have arms, but that such arms would be military weapons. There is other contemporaneous evidence that the Founding Fathers considered the militia to be equivalent to, if not, "the people", at least a very large part of the people. The Militia Act of 1792 declared the: "militia of the United States" to include almost every free adult male in the United States. These persons were obligated to possess a firearm and a minimum supply of ammunition and military equipment. This statute, incidentally remained in effect into the early years of the present century as a legal requirement of gun ownership for most of the population of the United States.23 The same Congress that debated the Bill of Rights, also debated HR-102, the Militia Bill which became, in the Second Congress, the Militia Act of 1792. Its language clearly shows: That the militia of the United States shall consist of each and every free, able-bodied male citizen of the respective States, resident therein, who are or shall be of the age of eighteen years, and under the age of forty-five years (except as is hereinafter excepted) who shall severally and respectively be enrolled by the captain or commanding officer of the company within whose bounds such citizens shall reside... That every citizen so enrolled and notified shall within _____ month_ thereafter, provide himself with a good musket or firelock of a bore not smaller than seventeen balls to the pound, a sufficient bayonet and belt, a pouch with a box therein to contain not less than twenty-four cartridges suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball, two spare flints, and a knapsack, and shall appear so armed, accoutred and provided, when called out to exercise or into service as is herein after directed...24 Current U.S. law still recognizes this organic relationship between the people and the militia: 311. Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intent to become, citizens of the United States and of female citizens of the United States who are commissioned officers of the National Guard. (b) The classes of the militia are -- (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.25 Indeed, our National Guard was organized under Congress' power to "raise and support armies", and not under the "organizing, arming and disciplining the Militia" provision, since the militia "can be called forth only `to execute the laws of the Union, suppress insurrections and repel invasions.'"26 More recently, the U.S. Supreme Court in U.S. v. Verdugo-Urquidez (1990) explicitly recognized that "the people" referred to in the Second Amendment has the same meaning as it does in the rest of the Bill of Rights: Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," ... "the 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"); 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.27 European Origins Of "The Right To Keep And Bear Arms" Beccaria & The Enlightenment The American Revolution is a child of the Enlightenment; if we wish to understand the well-educated men of the American Revolution, we need an understanding of its ideas. In the area of criminal law, Cesare Beccaria's On Crimes And Punishments, published in 1764, provides the first organized Enlightenment theory of criminal justice: Beccaria's book dealt with the state of criminal law. His opposition to arbitrary rule, to cruelty and intolerance, and his belief that no man had the right to take away the life of another human being constituted the moral basis on which his principles were built. His ideas not only had an impact on all the cultivated people of Europe and America, but influenced the attitudes of statesmen and governments, and brought about needed reforms. In his lifetime, Beccaria was greatly honored and admired: his cooperation was sought by Catherine the Great of Russia and Maria Theresa of Austria, and his writings were read and quoted by illustrious men of the time, from Voltaire to Thomas Jefferson, from Blackstone to John Adams.28 Beccaria's proposals included abolition of torture, and a dramatic reduction, if not abolition, of the death penalty. King Frederick II of Prussia started work on a new criminal code, consciously modelled on Beccaria's writings. While it did not abolish the death penalty, it "limited its application to very few cases." The governments of Russia, Sweden, Tuscany, and France (both royal and revolutionary) adopted legal reforms patterned on Beccaria's ideas, the abolition of torture being an distinguishing characteristic. Not all European governments adopted Beccaria's reforms, nor was the revolution in criminal justice immediate, but it is clear that Beccaria's book brought about not only the abolition of legally sanctioned torture throughout Western Europe, but also the elimination of the death penalty for theft, perjury, and blasphemy in Britain.29 America was also influenced by the arguments advanced in Beccaria's thin little book. When John Adams defended the British soldiers on trial for the Boston Massacre, he quoted Beccaria to the jury as his justification. At the time of the revolution, Pennsylvania started reform of its criminal codes to bring them more into conformity with Beccaria's ideas. By 1786, these efforts had led to "an act which reserved the punishment of death for four crimes: murder, rape, arson, and treason."30 Jefferson was another Revolutionary strongly influenced by Beccaria's ideas. "Jefferson's Commonplace Book ... contains ... no less than twenty- six extracts from Beccaria in Italian, all long passages cited in Jefferson's own handwriting"31, including Beccaria's comments on carrying arms reproduced below.32 Jefferson's "Bill for Proportioning Crimes and Punishments in Cases heretofore Capital", introduced in the Virginia legislature in 1778, repeatedly references Beccaria. When finally passed in 1796, it abolished the death penalty for all crimes except treason and murder.33 Having established Beccaria's credentials as a major influence on Enlightenment thought and Revolutionary reforms of the American criminal justice system, what does this tell us about the intent of the Second Amendment? Beccaria's On Crimes And Punishments asserted: False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty -- so dear to men, so dear to the enlightened legislator -- and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.34 Beccaria is certainly arguing for an individual permission to carry weapons for self-defense. There is no notion of military duty or collective action expressed here. It can not be established that Beccaria's argument for individuals carrying arms for self-defense led to the Second Amendment -- but it does establish that laws existed in Europe immediately before the American Revolution to prohibit bearing of arms, and Beccaria, a major influence on Revolutionary America's legal thought, strongly disapproved of them. The English Common Law Tradition Coke's Institutes of the Laws of England, defending the common law against the crown, paraphrased Ovid's position as "and the laws permit the taking up of arms against armed persons". During this same period of time, the long standing 1328 Statute of Northampton of Edward III, prohibiting the carrying of arms, was recognized as intended "to punish people who go armed to terrify the King's subjects." Similarly, William Hawkins Treatises of the Pleas of the Crown, recognized the right of every person to arm himself for individual defensive purposes.35 As we have seen in the discussion of "to bear arms", Blackstone asserted an individual right to bear arms in self-defense against private criminals. Blackstone is not alone among English legal authorities in arguing for a right to self-defense; Coke also claimed self-defense as an absolute right.36 The right to self-defense, admittedly, is not a right to arms. But the right to one without the other is rather akin to a freedom of the press, without a right to own printing equipment. Was Blackstone concerned only about private criminals? Apparently not. At the end of Chapter One, Book One, in which he articulates the "Absolute Rights of Individuals", Blackstone tells us: 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 and defense.37 In short, arms in private hands were the last resort of the people, when peaceful methods had failed. "To arms", was the final court of appeal -- as the American colonists demonstrated. The common law tradition appears to uphold the notion of a "right to bear arms" as an individual right, for the purposes of defending individuals from criminals both private and public. Could Blackstone have meant a collective right only? Is it within the realm of possibility that Blackstone referred only to a right to defend against external aggression, or against government run amok? With respect to invasion, the laws of England would have been quite irrelevant -- only the rules of international warfare would have mattered. No victorious conqueror would have cared whether English law granted its population the right to collectively defend the nation. Such a right is completely irrelevant to a commentary on English laws. That Blackstone was concerned about the dangers of criminal attack may be surmised from his assertion that "resistance and self-preservation" are allowed "when the sanctions of society and laws are found insufficient to restrain the violence of oppression." A tyrannical monarch or Parliament would have the laws on their side -- his assertion makes no sense if the "violence of oppression" was governmental in nature. The English common law with respect to individual possession of arms was clearly recognized in the colonies. Writings from the period 1768-69, when British forces were increased in Boston to suppress dissent, assert the rights of British subjects to possess arms.38 Similarly, when John Adams defended the British soldiers charged in the Boston Massacre of 1770, he cited Hawkins' Pleas of the Crown, and agreed that: 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 defense, not for offence, that distinction is material and must be attended to.39 The English Bill of Rights When the English Bill of Rights of 1689 was adopted, the abuses of James II were fresh on Parliament's mind. Among these abuses were confiscations of arms, searches for hidden arms caches, a ban on firearms imports, licensing of firearms transport, and record keeping mandated for gunsmiths. In 1671, James II amended the Hunting Act, severely restricting arms ownership. Gun and bow ownership was limited to those people with property worth more than 100 pounds.40 It is not surprising that the English Bill of Rights complains that the former King James II: [d]id endeavor to subvert ... the laws and liberties of this kingdom. ... 5. By raising and keeping a standing army within this kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law. 6. By causing several good subjects, being protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to law.41 Later, it asserts that the nation is "vindicating and asserting their ancient rights and liberties", including: 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 law. 7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.42 At first glance, this seventh article sounds like a rather equivocal, limited right. First of all, the right is limited to Protestants -- but since only a little over 1% of the population of England were Catholics at that time, this is very close to a general right. The phrase "as allowed by law" would also seem easy to abuse, since gun ownership had been restricted by James II's 1671 amendment to the Hunting Act -- except that this "was clarified by prompt amendment of the Hunting Act to remove the word `guns' from items which even the poorest Englishman was not permitted to own."43 On the question of whether an individual right was protected, or only a collective defense against an oppressive monarch, the debates in Parliament on this clause provide evidence in favor of the individualist perspective. The first draft of this right read: It is necessary for the public safety, that the Subjects which are Protestants, should provide and keep Arms for Their common Defence: And that the Arms, which have been seized, and taken from them, be restored.44 Removing the phrase "for Their common Defence" clarified the individual nature of that right. It would seem quite clear that article six expressed the understandable concerns about the dangers of a standing army. Equally clear is that article seven expressed concern about the dangers of individuals being disarmed, and sought to protect the rights of the overwhelming majority of Englishmen to possess arms. The Legislative Intent Of The Second Amendment In determining the legislative intent of the Second Amendment, there are several areas appropriate for study: state constitutions of the period, the state requests for a Bill of Rights, the actions of Congress with respect to the Second Amendment, and contemporary commentaries on the meaning of the Second Amendment. State Constitutions Not surprisingly, many of the provisions contained in the Bill of Rights were present, in one form or another, in the constitutions adopted during the revolutionary and republican periods. Those constitutions adopted before the Bill of Rights can tell us what sense "the right to keep and bear arms" had in the political vocabulary of the time; those constitutions adopted after the Bill of Rights can tell us the common understanding of the Second Amendment. Pennsylvania's 1776 constitution declares: "That the people have a right to bear arms for the defence of themselves and the state..."45 Vermont's constitution of 1777 similarly proclaims: "That the people have a right to bear arms for the defence of themselves and the State..."46 The 1786 Vermont constitution retains the same individual rights wording.47 If, as the collectivist school claims, the "right to keep and bear arms" reflects concerns about the enlarged powers of the central government, why do these state constitutions contain explicitly individual guarantees of the right to keep and bear arms? The evidence is clear that at least some significant fraction of the newly independent states were worried not only about common defense, but also about personal self-defense. There were a number of other state constitutions adopted during this period of time that seem to argue for a collectivist reading of the intent of the Second Amendment. Massachusetts's 1780 Constitution asserts: "The people have a right to keep and bear arms for the common defence."48 However, there were significant dissenters to that phrasing. The town of Northampton requested a less restrictive wording to this provision of the 1780 Constitution: "The people have a right to keep and bear arms as well for their own as the common defence." The town of Williamsburg made a similar objection to the language of the 1780 Massachusetts Constitution.49 This may be an indication that no general right to keep and bear arms was intended; it is hard to imagine why "for the common defence" would be added to such an assertion, unless it was intended to limit the breadth of that right. But this clause was drafted by John Adams, who, as we have seen, admitted an individual right to bear arms for self-defense at the Boston Massacre trial, and would later argue "arms in the hands of citizens [may] be used at individual discretion".50 Similarly, the North Carolina Constitution of 1776 restricts the people's "right to bear arms, for the defence of the State".51 New York's 1777 constitution is an interesting case. It contains no guarantee of an individual right to keep and bear arms -- but contains an interesting obligation: And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service... And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.52 The "duty of every man" included defense of the State, either in person, or for conscientious objectors, by the payment of in lieu fees. The "militia of this State, at all times hereafter, ... shall be armed and disciplined, and in readiness for service..." strongly suggests that New York intended a citizen's militia along the lines of the Swiss Army. In light of the definition of "militia" provided for us by George Mason at the Virginia ratifying convention, it would appear in the words of Patrick Henry, "The great object is, that every man be armed... Every one who is able may have a gun."53 Is this a "right to keep and bear arms", or an obligation? If the Second Amendment derives from such an obligation, the collectivist claim that no individual right was intended, can not be easily brushed aside. While every man would be armed under such a system, except for the "religiously scrupulous", the arms would be for the purpose of collective defense. An individual right might still exist, separate from the collective obligations, but evidence would have to be produced to uphold that position. In the same way that state constitutions adopted before the Bill of Rights can tell us something about the intent of the Second Amendment, the state constitutions containing a "right to keep and bear arms" clause adopted afterwards can tell us something about the meaning commonly ascribed to the Second Amendment after its passage. There is no shortage of such clauses to consider; the question is how long the adoption of constitutions with "right to keep and bear arms" clauses is relevant to the issue of original intent. I have chosen, rather arbitrarily, to examine those constitutions adopted in the period before 1845. The last living signer of the Constitution, Charles Carroll, died in 1832, and only a few adults alive at the time the Bill of Rights was ratified would have long survived him. In this formative period of American history, there are a total of fifteen constitutions, adopted by nine states, one territory, and one independent nation (the Republic of Texas)54 that contain a "right to bear arms in defense of himself and the State"55, or some slight variant. Because these provisions specify "in defense of himself", it is unambiguous that the right protected in each case is individual. These must be considered as evidence for the individualist school that no need was felt to come up with new and unique language, when the Second Amendment was available as a model. By comparison, there are only three constitutions in this period that specify "for the common defence": the Maine State Constitution of 1819, and the Tennessee State Constitutions of 1796 and 1834. None of these specify an individual right, and so we must assume, absent other evidence, that the intent was collectivist. There are some exceptional state constitutions that are not clearly in either camp. The Rhode Island State Constitution of 1842 (Rhode Island had continued to use its colonial charter) uses the second clause of the Second Amendment by itself: "The right of the people to keep and bear arms shall not be infringed."56 Since Rhode Island's constitution also guarantees "The right of the people to be secure in their persons, papers and possessions against unreasonable searches and seizures" and "The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore", it is difficult to imagine "the people" referring only to a collective right. We may infer that "the people" was not a rhetorical device to refer to "persons" from section 21, which restricts the "right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances" to "citizens".57 The New York State Constitution of 1821 carries over the language of the 1777 constitution. It does not directly evidence either a collectivist or individualist interpretation of the Second Amendment, but does provide some evidence to justify the collectivist argument that the intentions of the "well regulated militia" clause were for a collective defense. The very lop-sided division between the "common defence" and individualist state constitutional provisions indicates that the individualist understanding of the Second Amendment was predominant during this critical period of American history. Requests For A Bill of Rights Only five state constitutional conventions made formal requests for a Bill of Rights: Massachusetts, South Carolina, New Hampshire, Virginia, and New York.58 In the case of Pennsylvania, the Federalist faction overwhelmed the Antifederalists at the state convention, and rammed through ratification of the Constitution by a 46-23 vote. Attempts by the Antifederalists to append a request for a Bill of Rights to the ratification were defeated by the same margin. In response, 21 of the 23 delegates met after the convention, and issued "The Address and Reasons of Dissent of the Minority of the Convention", which includes their request for a Bill of Rights.59 While lacking the official status of the requests made by the five state conventions, it can be considered to be a statement of the Antifederalist position, and should be considered when studying the official requests. The Pennsylvania request included an amendment that can be clearly seen as a predecessor to the Second Amendment: 7. That the people have a right to bear arms for the defense of themselves and their own state or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.60 The phrases "for the defense of themselves" and "no law shall be passed for disarming the people or any of them [emphasis added] unless for crimes committed, or real danger of public injury from individuals" leave no doubt that the Antifederalists in Pennsylvania desired an individual right to keep and bear arms. The phrase "or real danger of public injury from individuals" seems to be intended to handle those cases where no crime was alleged or proven, but where a clear-cut hazard by particular individuals could be established -- certainly, mental illness was not unknown to the people of Pennsylvania. Note also that "to bear arms" is again used in the context of personal self-defense, as well as a part of a military body -- further suggesting that Prof. Levin's distinctions were not recognized by Revolutionary Americans. At the same time, there is a concern about standing armies expressed, and the desire for "strict subordination" shows the concerns about military dictatorship. That this is expressed in the same paragraph as the "right to bear arms for the defense of themselves and their own state" can be considered evidence that a connection existed in the minds of the drafters between personal armaments and the dangers of standing armies -- much as the English Parliament saw an obvious connection between private arms and standing armies. Massachusetts is one of the states whose request for a Bill of Rights, adopted February 6, 1788, does not include a predecessor to the Second Amendment -- but came very close to doing so. Samuel Adams, a Federalist delegate, proposed a Bill of Rights be added to the state convention's ratification of the Constitution: And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.61 In the ensuing machinations of Federalists and Antifederalists, Adams attempted to withdraw his own motion, at which point the Antifederalists revived it, and Adams voted against his own motion. It lost 187-168 -- a very narrow victory for the Federalists, and indicative of the widespread support that this list of rights had among Massachusetts delegates.62 It might be tempting to assume that Adams' list of rights was derived from the Pennsylvania minority report -- but "The Address and Reasons of Dissent" did not reach Boston until after the Massachusetts convention had ratified the Constitution, sans a Bill of Rights.63 Š Again, a request for a Bill of Rights had been made, recognizing the right of "peaceable citizens ... keeping their own arms", with no suggestion that such arms were specific to military duty or obligations. The phrase "keeping their own arms" shows that these were not government owned weapons, which individuals kept in their homes -- these were personally owned arms. When the subject of standing armies was raised at the Massachusetts ratifying convention, the Federalist delegate Sedgwick argued for ratification of the constitution, and against the concerns about Federal power. He asserted that it was, a chimerical idea to suppose that a country like this could ever be enslaved. How is an army for that purpose to be obtained from the freemen of the United States? They certainly, said he, will know to what object it is to be applied. Is it possible, he asked, that an army could be raised for the purpose of enslaving themselves and their brethren? or, if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?64 Clearly, the argument runs that the population will be armed, and in a manner that would make it impossible for a standing army to overwhelm the people. While still evidence for a collectivist view of the Second Amendment, it strongly implies that arms would be widely distributed and available to "freemen of the United States". South Carolina's list of desired amendments to the Constitution, adopted May 23, 1788, is remarkably short -- indeed, the shortest of all, and contains no requests for a right to keep and bear arms, and no limitations on standing armies. Indeed, only the Tenth Amendment, reserving powers to the states, seems to have an ancestor in South Carolina's ratification request.65 South Carolina's proposed amendments contribute nothing meaningful to the individualist/collectivist dispute. New Hampshire's convention adopted a list of amendments on June 21, 1788. New Hampshire's proposed amendments include two ancestors of the two different clauses of the Second Amendment: Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be Quartered upon private Houses without the consent of the Owners.... Twelfth Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.66 The latter half of the tenth proposal is clearly the ancestor of the Third Amendment; less direct is the connection to the first half of the Second Amendment. The same concerns about the dangers of a standing army that motivated the Pennsylvania request and Samuel Adams' motion in the Massachusetts convention, appear to have motivated New Hampshire's tenth proposal. The twelfth proposal is the most radical form of "the right to keep and bear arms" imaginable. The phrase "never disarm any Citizen" leaves no opportunity to argue that New Hampshire's request was for a collective right. The conditions under which New Hampshire was prepared to accept disarming someone -- "Actual Rebellion" -- suggests that the right to arms was so basic that only the most serious of crimes could justify taking that right away. Even though New Hampshire's ratification had given the Constitution the nine states required for the new government to start operations, Virginia's ratification was still of great importance, because of its wealth and size.67 Consequently, the battle between Federalist and Antifederalist was involved and trying. The Virginia convention adopted a long philosophical discourse on natural rights, reminiscent of the Virginia Declaration of Rights, as well as a concrete list of amendments desired in the new Constitution. Among the philosophical statements was: Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms in 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 shall be under strict subordination to and governed by the Civil power.68 The concerns about standing armies previously mentioned, persist. Again, the proximity of it to the people's "right to keep and bear arms" can be considered evidence that there is some connection between this right and protection against the dangers of standing armies, but it does not preclude an individualist interpretation. There is no clear proof that "the right to keep and bear arms" refers to an individual right. However, the phrase "the people" is used also in reference to "right to peaceably assemble", and "right to freedom of speech" in the 15th and 16th sections of this preamble. Attempts to fit "the people have a right to keep and bear arms" into a collective sense would require similar interpretations of the corresponding sections of the Bill of Rights. There is no evidence that a collective right alone was intended here; the use of "the people" in the Virginia request must therefore be considered evidence of an individual right, in the absence of other evidence to the contrary. In the actual amendments requested, there is no individual right to keep and bear arms requested. There is: Ninth, That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses.69 While in accord with the concerns expressed previously by other state conventions as to the dangers of standing armies, there is no commonality of wording with Madison's first draft of the Second Amendment -- unlike the 17th proposition in the preamble, which is clearly a direct ancestor of Madison's draft.Š New York's ratification of the Constitution on July 26, 1788, is the last which requested a Bill of Rights. Like Virginia's request, it includes a preamble defining the nature of human rights, then launches into a lengthy description of the rights to be protected by a Bill of Rights. Among these rights: 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 the Militia should not be subject to Martial Law, except in time of War, Rebellion or Insurrection. 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.70 Again, "the right to keep and bear Arms" is a right of "the People", and while mentioned in the same paragraph as a "well regulated Militia", the two are separate clauses, with no apparent requirement that one be dependent on the other. Unlike the Virginia request, the New York request's use of the phrase "the People" is less clearly an individual right. There are a number of guarantees of individual rights which refer to "Person" in the singular, including the double jeopardy and habeas corpus clauses71. But at the same time, "the People have a right peaceably to assemble"72 and "the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience"73. Was there an intent that some rights could only be exercised collectively? Or was "the People" used as a plural for "Person" for stylistic reasons? The original intent is unclear at this time, but even if "the People" is read in a collective, governmental militia sense here, it requires a similar reading of "the People" with respect to the religion and peaceable assembly provisions -- with absurd results. The freedom of religion clause then becomes a freedom for a government recognized church, negating the second half of the paragraph, "and that no Religious Sect or Society ought to be favoured or established by law in preference of others." Similarly, "the People have a right peaceably to assemble" would only be valid for a governmentally sanctioned assembly, negating the "to consult for their common good, or to instruct their Representatives" provision of the same paragraph. While less clearly an individual right than the other requests, it would be difficult to argue that New York's request was for a collective right only, without doing great damage to the clear intent of the other requests for a Bill of Rights.74 Congress & The Second Amendment On June 8, 1789, James Madison introduced a resolution, That the following amendments ought to be proposed by Congress to the legislatures of the states, to become, if ratified by three fourths thereof, part of the constitution of the United States.75 Following this preamble were a series of separate articles, each of which sought to insert into the Constitution the rights requested by the various state conventions. The fourth article included much of what is now the Bill of Rights, including: 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.76 Throughout Madison's resolution, "The rights of the people" and "The people" are consistently used to refer to what are today considered individual rights: The people shall not be deprived or abridged of their rights to speak, to write, or to publish their sentiments...77 The people shall not be restrained from peaceably assembling and consulting for their common good...78 The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause...79 The word "person" is used in several places to refer to single individuals confronting the legal system -- but there is no reason to think, based on the choice of "person" vs. "people", that Madison intended one to be individual, and the other to be collective in nature. Congress made a series of amendments to Madison's proposal over the next several months. What became the Second Amendment was not exempted from these changes. Madison's proposal, along with the recommendations of the state ratifying conventions, was turned over to a House committee "composed of John Vining of Delaware, chairman, Madison, and Roger Sherman, a consistent opponent of a federal bill of rights" on July 21, 1789.80 A week later, the committee report was completed, with the Second Amendment revised to: [6] "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."81 The phrase "the right of the people to keep and bear arms", was now sandwiched between a philosophical assertion about the "best security of a free State", and a protection for conscientious objectors from compulsory military service. The full House took up debate on the Bill of Rights in August. On August 17th, Elbridge Gerry of Massachusetts proposed adding "trained to arms" after "A well regulated militia". No one seconded his motion. It is difficult to see what this change would have practically meant to either the collectivist or individualist schools. The same day, James Jackson of Georgia proposed adding "upon paying an equivalent to be established by law" at the end of the conscientious objector provision. Jackson then changed the phrase to "No one, religiously scrupulous of bearing arms, shall be compelled to render military service in person, upon paying an equivalent." Finally, Egbert Benson's motion to strike out the entire conscientious objector clause was put to a vote, and lost, 24-22. Aedanus Burke of South Carolina sought to add: A standing army of regular troops in time of peace, is dangerous to public liberty, and such shall not be raised or kept up in time of peace but from necessity, and for the security of the people, nor then without the consent of two-thirds of the members present of both houses, and in all cases the military shall be subordinate to the civil authority. This measure also failed to win House approval. Finally, on August 20th, a proposed amendment to this article passed. The words "in person" were inserted at the end of the conscientious objector clause82, protecting the right of conscientious objectors, but not precluding laws to require them to hire a substitute. On August 24th, the House completed its deliberations on the Bill of Rights. As a result of renumbering and revisions, the "right to keep and bear arms" amendment was now: Article the Fifth 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 one religiously scrupulous of bearing arms, shall be compelled to render military service in person.83 The Senate now took up the Bill of Rights. On September 4th, an attempt was made to append: that standing armies, in time of peace, being dangerous to Liberty, should 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. That no standing army or regular troops shall be raised in time of peace, without the consent of two thirds of the Members present in both Houses, and that no soldier shall be inlisted for any longer term than the continuance of the war. This phrase, clearly derived from the requests of the various state conventions, was voted down 9-6. However, on the same day, an amendment to strike the "religiously scrupulous" clause passed. Finally, on September 9th, the Senate replaced "the best" with "necessary to the", giving the Second Amendment its present language. On the same day, a motion to add "for the common defence" after "bear arms" failed. An opportunity to make the Second Amendment collectivist had been presented, and the Senate chose not to do so. Unfortunately, no debate survives to explain this vote.84 On September 14, 1789, the Senate completed its deliberations on the Bill of Rights.85 A conference committee report on September 24th resolved differences between the House and Senate versions for the first, third, and eighth articles86; no changes were required for the "right to keep and bear arms" article -- now "Article the Fourth". On the same day, the House requested President Washington send the proposed amendments "to the executives of the several states which have ratified the Constitution", as well as North Carolina and Rhode Island, which had not yet ratified.87 Contemporary Commentaries In addition to the various Federalist and Antifederalist pamphlets previously mentioned, Tench Coxe's pamphlet distributed during the period 1787-1789, provide evidence -- admittedly, weak evidence -- to support the individual nature of the rights protected by the Second Amendment. Tench Coxe, in discussing the dangers of ex post facto laws, tells us: They have been called ex post facto laws, and are exploded by the new system. If a time of public contention shall hereafter arrive, the firm and ardent friends to liberty may know the length to which they can push their noble opposition, on the foundation of the laws. Should their country's cause impel them further, they will be acquainted with the hazard, and using those arms which Providence has put into their hands, will make a solemn appeal to "the power above."88 Coxe here tells us that revolution was the last resort of the people against aristocratic oppression; the ability of "friends to liberty" to possess arms for that purpose is assumed. Along with the court cases just before the Civil War, there are commentaries by a number of recognized legal scholars from the revolutionary & republican period that support the individualist perspective. St. George Tucker's 1803 edition of Blackstone's commentaries, annotated for American law, cites the Second Amendment with reference to the right of subjects to arms that, "And this without any qualification as to their condition or degree, as is the case in the British government."89 William Rawle's A View of the Constitution (1829), provides one of the first expositions of the meaning of the Second Amendment that argues that the second clause is not dependent on the first, and that the prohibition extends to the states as well as the national government. Rawle tells us that: In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest. The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed. The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both... This right ought not, however, in any government, to be abused to the disturbance of the peace. An assemblage of person with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.90 Rawle provides a clear statement that while "a single individual" might violate the law by carrying arms under circumstances that would cause "reason to fear ... an unlawful use of them", the carrying of arms alone is not a crime, and is protected by the Second Amendment as an individual right. Justice Joseph Story's Commentaries on the Constitution of the United States, not surprisingly, articulates the meaning of the various amendments in the Bill of Rights.: - 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." - 1890. the importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic ursupations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the 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.91 Again, the notion of popular resistance against the government is stated as one of the goals of an armed populace. "The right of the citizens to keep and bear arms" is an unmistakable statement of individual right; this right is not a right of the state governments, or of state militias. "For The Defense Of Themselves And The State" Substantial evidence exists that the Second Amendment was intended primarily to protect a collective right to revolt against tyrannical government. This right was the subject of substantial discussion in the context of militia vs. standing armies, as well as the clear-cut articulation of a right to revolution in the New Hampshire and Vermont charters, but I am unable to find any significant debate about the validity of this right. (Nor is this surprising; revolutionary governments, while the bloom of revolutionary vigor persists, remain committed to the ideas expressed in the Declaration of Independence.) The Second Amendment protected not only the states from the national government, but individuals from the potential oppression of both national and state governments. The collective right in question was not simply protective of the rights of the States with respect to the new, more powerful Federal Government, but protective of the right to revolution, when more pacific means had failed, and tyranny was loose upon the land. As shown by the speeches and pamphlets of Madison, Webster, Lee, & Coxe, this right to revolution was borne on the shoulders of widespread private arms ownership. Even in the absence of evidence of an individual nature to the right of arms ownership, it is clear that the intent was for widespread possession of individually owned arms. It would seem clear from the overwhelming preponderance of evidence from Blackstone, the "right to keep and bear arms" provisions of the various constitutions adopted during the period of revolutionary and republican America, from the legal commentaries of Tucker, Rawle, and Story, that the Second Amendment was recognized as protecting an individual right to keep and carry arms, including firearms, during the period from 1776-1845. (My research into the history of judicial interpretation, while outside the scope of this paper, supports this position). It would appear, from my review of the papers of the collectivist school, that they have reached their conclusions concerning the lack of an individual right to keep and bear arms by relying excessively on secondary sources (including the U.S. Supreme Court decisions from this century and the last), and an ahistorical perception of the Framers as democrats first, revolutionaries second. The Framers of our Government, in spite of their positions as elected representatives, regarded government as a system too easily perverted to corrupt ends to be entirely trusted. At The Crossroads In the years since U.S. v. Miller (1939), the U.S. Supreme Court has refused to hear any case challenging a law that prohibited law-abiding citizens from possessing or carrying guns. Federal appeals courts have upheld a number of local restrictions on firearms possession, including the Morton Grove ban on private handgun ownership.92 As of this date, California's Assault Weapons Control Act of 1989 remains on appeal in the federal courts, and will provide an interesting dilemma for the Supreme Court. Many of the rifles banned by Roberti-Roos are semiautomatic versions of battle rifles in current or recent military use in a number of the world's armies, including our own. That such weapons have "some reasonable relationship to the preservation or efficiency of a well regulated militia" -- the test endorsed by U.S. v. Miller for whether private ownership of a weapon was protected by the Second Amendment -- would seem undisputable. Either the Court must discard the U.S. v. Miller precedent, or overturn such a law. As we stand at the crossroads, it is important to remember that the Supreme Court has a long history of wriggling out of unpleasant decisions; U.S. v. Miller is just one example. The Court has also made decisions in the past which have provoked political change to counteract those decisions; the Warren Court's recognition of the rights of criminals suspects, and the Roe v. Wade decision, played a role in the conservative political shift of American national politics, culminating in the election of President Reagan in 1980. Most dramatically, the Court in Dred Scott made a decision so diametrically opposed to the sentiments of abolitionists, that the only resolution possible was the Civil War. There are rights so fundamental that when they are denied or revoked, there may well appear no possible alternative but armed revolution; the tools of self-defense and revolution are in that category. The American Revolution was sparked by the attempt of the British Army to confiscate militia weapons and supplies at Lexington and Concord; more recently, the Barcelona uprising during the Spanish Civil War was provoked by the government's attempt to confiscate private arms.93 This is not surprising; the scenario becomes, "Lose it or use it." Let us hope that the Court finds a way to balance the widespread public desire for firearms regulation, with the absolute refusal of many members of our society to either register or turn in firearms. 1 David J. Steinberg, "Other Views of the Second Amendment", in The Right To Keep And Bear Arms, 97th Congress, 2d session (1982); (Washington, Government Printing Office: 1982), 25. 2 Warren E. Burger, "The Right To Bear Arms", in Parade, January 14, 1990, 4- 6. See also Steinberg, 24-25; and Michael K. Beard and Samuel S. Fields, "National Coalition to Ban Handguns Statement on the Second Amendment", in The Right To Keep And Bear Arms, 30-31. 3 John Levin, "The Right To Bear Arms: The Development Of The American Experience", Chicago-Kent Law Review, Fall-Winter 1971, reprinted in The Right To Keep And Bear Arms, 129. 4 David T. Hardy, "Historical Bases of the Right To Keep and Bear Arms", in The Right To Keep And Bear Arms, 57-59. See also James J. Featherstone and Richard E. Gardiner, "The Second Amendment Guarantees an Individual Right To Keep and Bear Arms", in The Right To Keep And Bear Arms, 86. 5 Senate Subcommittee on The Constitution Staff, "History: Second Amendment Right To `Keep and Bear Arms'", in The Right To Keep And Bear Arms, 12. 6 Roy G. Weatherup, "Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment", in The Right To Keep And Bear Arms, 138. 7 Levin, 116. See also Steinberg, 26. 8 William Blackstone, Commentaries on the Laws of England, William Carey Jones, ed., (San Francisco, Bancroft-Whitney Co.: 1916), 219. 9 Blackstone, 246. 10 Blackstone, 247. 11 See Francis Newton Thorpe, ed., The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, (Washington, Government Printing Office: 1909). 12 Noah Webster, An American Dictionary of the English Language, Vol. I, 1828; reprinted New York: Johnson Reprint Corp.: 1970).s.v. "Arms". 13 181 N.C. 576, quoted in Stephen Halbrook, That Every Man Be Armed, The Independent Institute (Oakland: 1984), 182. 14 Jonathan Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution, (New York, Burt Franklin: 1888), 3:425-426.Š15 Paul Ford, ed., Pamphlets On The Constitution of the United States, Brooklyn, NY: 1888, 277. 16 Richard Henry Lee, "Letters of a Federal Farmer", 25, in Ford, 305. 17 Ibid.. 18 Jacob E. Cooke, ed., The Federalist, (Middletown, CT, Wesleyan University Press: 1961), 320. 19 Ibid., 321. 20 Noah Webster, An Examination into the Leading Principles of the Federal Constitution, 42-43, in Ford, 55. 21 Ibid., 56. 22 Tench Coxe, Pennsylvania Gazette, 20 Feb. 1788, in 2 Documentary History of the Ratification of the Constitution (Mfm. Supp.) at 1778-1780, quoted in Halbrook, 68. 23 Senate Subcommittee on The Constitution Staff, The Right To Keep And Bear Arms, 7. 24 Charlene Bangs Bickford and Helen E. Veit, ed., Documentary History of the First Federal Congress 1789-91, Vol. 5, (Baltimore, Johns Hopkins University Press: 1986), 1460-1462. Attempts to find the original Militia Act of 1792 as passed by Congress, were fruitless. 25 10 USC -311. Similar provisions exist in many state codes -- see California Military & Veterans Code, -120-123. 26 Senate Subcommittee on The Constitution Staff, The Right To Keep And Bear Arms, 11. 27 110 U.S. 1060-1061. 28 Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform, (Philadelphia, Temple University Press: 1973), 3. 29 Ibid., 134-137. 30 Ibid., 137-138. 31 Ibid., 141. 32 Halbrook, 35, 209. 33 Maestro, 141-142. 34 Cesare Beccaria, trans. by Henry Palolucci, On Crimes And Punishments, (New York, Bobbs-Merrill Co.: 1963), 87-88. 35 Halbrook, 49-50. 36 Featherstone and Gardiner, 84. 37 Blackstone, 247. 38 Halbrook, 58. 39 L. Kinvin Wroth and Hiller B. Zobel, ed., Legal Papers of John Adams, (Cambridge, MA, Harvard University Press: 1965), 3:248. 40 Hardy, 50-51. 41 Walter Laquer and Barry Rubin, ed., The Human Rights Reader, (New York, New American Library: 1979), 104. 42 Ibid., 106. 43 Hardy, 50-51. 44 Halbrook, 44. 45 Francis Newton Thorpe, 5:3083. 46 Ibid., 6:3753-3754. 47 Ibid., 6:3741. 48 Ibid., 3:1892. 49 Halbrook, 64-65. 50 Ibid., 65. 51 Thorpe, 5:2788. 52 Thorpe, 5:2637. 53 Elliot, 3:386. 54 State Constitutions: Connecticut (1818), Kentucky (1792 & 1799), MichiganŠ (1835), Missouri (1820), Mississippi (1817), Ohio (1802), Pennsylvania (1790), Texas (1845), Vermont (1793); Territorial Constitutions: Indiana (1816); and the Republic of Texas (1838). Although a foreign country, the Republic of Texas was settled and controlled by Americans, who wrote a constitution of similar sentiments to the U.S. Constitution. 55 Thorpe, 2:1059. 56 Ibid., 6:3224. 57 Ibid., 6:3224. 58 Bickford and Veit, 4:12-26. 59 Robert Allen Rutland, The Birth of the Bill of Rights 1776-1791, rev. ed., (Boston, Northeastern University Press: 1983), 140-41. 60 "The Address and Reasons of Dissent by the Majority of the Convention of the State of Pennsylvania to their Constitutents", in Annals of America, (Chicago, Encyclopedia Britannica: 1976), 3:175. 61 Debates of the Massachusetts Convention of 1788 (Boston, 1856), 86-87, quoted in Rutland, 147. 62 Rutland, 147. 63 Ibid., 144. 64 Elliot, 1:97. 65 Bickford & Veit, 13-14. 66 Bickford and Veit, 14-15. 67 Rutland, 162. 68 Bickford & Veit, 17. 69 Ibid., 18. 70 Ibid., 20. 71 Ibid., 20. 72 Ibid., 21. 73 Ibid., 20. 74 Ibid., 20-21. 75 Ibid., 9. 76 Ibid., 10. 77 Ibid., 10. 78 Ibid., 10. 79 Ibid., 10-11. 80 Rutland, 207. 81 Bickford & Veit, 28. 82 Ibid., 28. 83 Ibid., 36. 84 Ibid., 36-37. 85 Ibid., 45. 86 Ibid., 47. 87 Ibid., 48. 88 Tench Coxe, An Examination of the Constitution for the United States of America, 18-19, in Paul Ford, 147-148. 89 St. George Tucker, ed., Blackstone's Commentaries, 1:143 n. 40, 41, (Philadelphia: 1803), quoted in Senate Subcommittee on The Constitution Staff, The Right To Keep And Bear Arms, 6-7. 90 William Rawle, A View of the Constitution, 2nd ed., (Philadelphia: 1829), 125-126. 91 Joseph Story, Commentaries on the Constitution of the United States, (Boston: 1833), 3:746-747. 92 Halbrook, xi. 93 George Orwell, Homage To Catalonia, (San Diego, Harcourt Brace Jovanovich: 1980), 150. 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