Right to keep and bear arms



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concealed. This is simply a regulation as to the manner of bearing such arms as are specified", while the dissenting justice proclaimed "I deny that any just or free government upon earth has the power to disarm its citizens.51


Sometimes courts went farther. When in 1837, Georgia totally banned the sale of pistols (excepting the larger pistols "known and used as horsemen's pistols") and other weapons, the Georgia Supreme Court in Nunn v. State held the statute unconstitutional under the Second Amendment to the federal Constitution. The court held that the Bill of Rights protected natural rights which were fully as capable of infringement by states as by the federal government and that the Second Amendment provided "the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."52 Prior to the Civil War, the Supreme Court of the United States likewise indicated that the privileges of citizenship included the individual right to own and carry firearms. In the notorious Dred Scott case, the court held that black Americans were not citizens and could not be made such by any state. This decision, which by striking down the Missouri Compromise did so much to bring on the Civil War, listed what the Supreme Court considered the rights of American citizens by way of illustrating what rights would have to be given to black Americans if the Court were to recognize them as full fledged citizens:

It would give to persons of the negro race, who are recognized as citizens in any one state of the Union, the right to enter every other state, whenever they pleased.... and it would give them full liberty of speech in public and in private upon all subjects upon which its own citizens might meet; to hold public meetings upon political affairs, and to keep and cany arms wherever they went.53

Following the Civil War, the legislative efforts which gave us three amendments to the Constitution and our earliest civil rights acts likewise recognized the right to keep and bear arms as an existing constitutional right of the individual citizen and as a right specifically singled out as one protected by the civil rights acts and by the Fourteenth Amendment to the Constitution, against infringement by state authorities. Much of the reconstruction effort in the South had been hinged upon the creation of "black militias" composed of the armed and newly freed blacks, officered largely by black veterans of the Union Army. In the months after the Civil War, the existing southern governments struck at these units with the enactment of "black codes" which either outlawed gun ownership by blacks entirely, or imposed permit systems for them, and permitted the confiscation of firearms owned by blacks. When the Civil Rights Act of 1866 was debated members both of the Senate and the House referred to the disarmament of blacks as a major consideration.54 Senator Trumbull cited provisions outlawing ownership of arms by blacks as among those which the Civil Rights Act would prevent;55 Senator Sulsbury complained on the other hand that if the act were to be passed it would prevent his own state from enforcing a law banning gun ownership by individual free blacks.56 Similar arguments were advanced during the debates over the "anti-KKK act"; its sponsor at one point explained that a section making it a federal crime to deprive a person of "arms or weapons he may have in his house or possession for the defense of his person, family or property" was "intended to enforce the well-known constitutional provisions guaranteeing the right in the citizen to 'keep and bear arms'."57 Likewise, the debates over the Fourteenth Amendment

Congress frequently referred to the Second Amendment as one of the rights which it intended to guarantee against state action.58

Following adoption of the Fourteenth Amendment, however, the Supreme Court held that that Amendment's prohibition against states depriving any persons of their federal "privileges and immunities" was to be given a narrow construction. In particular, the "privileges and immunities" under the Constitution would refer only to those rights which were not felt to exist as a process of natural right, but which were created solely by the Constitution. These might refer to rights such as voting in federal elections and of interstate travel, which would clearly not exist except by virtue of the existence of a federal government and which could not be said to be "natural rights".59 This paradoxically meant that the rights which most persons would accept as the most important — those flowing from concepts of natural justice — were devalued at the expense of more technical rights. Thus when individuals were charged with having deprived black citizens of their right to freedom of assembly and to keep and bear arms, by violently breaking up a peaceable assembly of black citizens, the Supreme Court in United States v. Cruikshank60 held that no indictment could be properly brought since the right "of bearing arms for a lawful purpose" is "not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." Nor, in the view of the Court, was the right to peacefully assemble a right protected by the Fourteenth Amendment: "The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is and has always been one of the attributes of citizenship under a free government.... It was not, therefore, a right granted to the people by the Constitution." Thus the very importance of the rights protected by the First and Second Amendment was used as the basis for the argument that they did not apply to the states . under the Fourteenth Amendment. In later opinions, chiefly Presser v. Illinois61 and Miller v. Texas,62 the Supreme Court adhered to the view. Cruikshank has clearly been superseded by twentieth century opinions which hold that portions of the Bill of Rights — and in particular the right to assembly with which Cruikshank dealt in addition to the Second Amendment — are binding upon the state governments. Given the legislative history of the Civil Rights Acts and the Fourteenth Amendment, and the more expanded views of incorporation which have become accepted in our own century, it is clear that the right to keep and bear arms was meant to be and should be protected under the civil rights statutes and the Fourteenth Amendment against infringement by officials acting under color of state law.


Within our own century, the only occasion upon which the Second Amendment has reached the Supreme Court came in United States v. Miller.63 There, a prosecution for carrying a sawed off shotgun was dismissed before trial on Second Amendment grounds. In doing so, the court took no evidence as to the nature of the firearm or indeed any other factual matter. The Supreme Court reversed on procedural grounds, holding that the trial court could not take judicial notice of the relationship between a firearm and the Second Amendment, but must receive some manner of evidence. It did not formulate a test nor state precisely what relationship might be required. The court's statement that the amendment was adopted "to assure the continuation and render possible the effectiveness of such [militia] forces" and "must be interpreted and applied with that end in view", when combined with the court's statement that all constitutional sources "show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense.... these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time,"64 suggests that at the very least private ownership by a person capable of self defense and using an ordinary privately owned firearm must be protected by the Second Amendment. What the Court did not do in Miller is even more striking: It did not suggest that the

lower court take evidence on whether Miller belonged to the National Guard or a similar group. The hearing was to be on the nature of the firearm, not on the nature of its use; nor is there a single suggestion that National Guard status is relevant to the case.

The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately posses and carry in a peaceful manner firearms and similar arms. Such an "individual rights" interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself. A number of state constitutions, adopted prior to or contemporaneously with the federal Constitution and Bill of Rights, similarly provided for a right of the people to keep and bear arms. If in fact this language creates a right protecting the states only, there might be a reason for it to be inserted in the federal Constitution but no reason for it to be inserted in state constitutions. State bills of rights necessarily protect only against action by the state, and by definition a state cannot infringe its own rights; to attempt to protect a right belonging to the state by inserting it in a limitation of the state's own powers would create an absurdity. The fact that the contemporaries of the framers did insert these words into several state constitutions would indicate clearly that they viewed the right as belonging to the individual citizen, thereby making it a right which could be infringed either by state or federal government and which must be protected against infringement by both.


Finally, the individual rights interpretation gives full meaning to the words chosen by the first Congress to reflect the right to keep and bear arms. The framers of the Bill of Rights consistently used the words "right of the people" to reflect individual rights — as when these words were used to recognize the "right of the people" to peaceably assemble, and the "right of the people" against unreasonable searches and seizures. They distinguished between the rights of the people and of the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia". Indeed, the debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constitute, and indeed were philosophically opposed to, the concept of a militia.

That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia".65 This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 31 l(a).


The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

REFERENCES

1. Charles Hollister, Anglo-Saxon Military Institutions 11-42 (Oxford University Press 1962); Francis Grose, Military Antiquities Respecting a History of the British Army, Vol. I at 1-2 (London, 1812).

2. Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal History of Medieval England 273 (2d. ed. New York 1980).

3. J. J. Bagley and P. B. Rowley, A Documentary History of England 1066-1540, Vol. 1 at 155-56 (New York 1965).

4. Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley, supra at 158. 5. 7 Ed. I c. 2 (1279).

6. Statute of Northampton (2 Edw. III c. 3).

7. Rex v. Knight, 90 Eng. Rep. 330; 87 Eng. Rep. 75 (King's Bench, 1686).

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


9. 19 Hen. VII c. 4 (1503).

10. 3 Hen. VIII c. 13 (1511).

11. 64 Hen. VIII c. 13 (1514). 12. 33 Hen. VIII c. 6 (1514).

13. Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979).

14. Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968).

15. Charles Oman. A History of the Art of War in the Sixteenth Century 288 (New York. 1937).

16. William Blackstone, Commentaries, Vol. 2 at 412 (St. George Tucker, ed., Philadelphia 1803).

17. "An Act for Settling the Militia," Ordinances and Acts of the Interregnum, Vol. 2 1320 (London, HMSO 1911).

18. 8 Calendar of State Papers (Domestic), Charles II, No. 188, p. 150.

19. 14 Car. II c. 3 (1662).

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


21. Thomas Macaulay, The History of England from the Accession of Charles II, Vol. II at 137 (London, 1856). 22. Phillip, Earl of Hardwicke, Miscellaneous State Papers from 1501-1726, vol. 2 at 407-17 (London, 1778).

23. J. R. Western, Monarchy and Revolution: The English State in the 1680's, at 339 (Totowa, N.J., 1972).

24. Journal of the House of Commons from December 26, 1688, to October 26, 1693, at 29. (London, 1742). The Bill of Rights was ultimately enacted in this form. 1 Gul. and Mar., Sess. 2, c. 2 (1689).

25. Joyce Malcolm, supra, at 16.

26. William Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia from the First Session of the Legislature in 1619, at pp. 127, 173-74 (New York, 1823).

27. Id.

28. William Brigham, The Compact with the Charter and Laws of the Colony of New Plymouth, 31, 76 (Boston, 1836).

29. Oliver Dickerson, ed., Boston Under Military Rule, 61, 79, (Boston, 1936).

30. Steven Patterson. Political Parties in Revolutionary Massachusetts, at 103 (Univ. of Wisconsin Press, 1973).


31. See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965).

32. The most extensive studies of these militia proposals are John McAuley Palmer, Washington, Lincoln, Wilson: Three War Statesmen (New York, 1930); Frederick Stern, Citizen Army (New York, 1957); John Mahon, The American Militia: Decade of Decision 1789-1800 (Univ of Florida, 1960).

33. Merrill Jensen, ed., The Documentary of History of the Ratification of the Constitution, vol. 3 at 378 (Madison, Wisc.).

34. Id., vol. 2 at 508.

35. Walter Bennett, eu., Letters from the Federal Farmer to the Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975).

36. Debates and other Proceedings of the Convention of Virginia, . . . taken in shorthand by David Robertson of Petersburg, at 271, 275 (2d ed. Richmond, 1805).

37. Noah Webster, "An Examination into the Leading Principles of the Federal Constitution . . .", in Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56 (New York, 1888).

38. Johnathan Elliott, ed., Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 2 at 97 (2d ed., 1888).


39. Merrill Jensen, supra, vol. 2 at 597-98.

40. Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850); 2 B. Schwartz, the Bill of Rights 675 (1971).

41. Documents Illustrative of the Formation of the Union of the American States, at 1026 (Washington, D.C.: GPO, 1927).

42. Id. at 1030.

43. Annals of Congress 434 (1789).

44. St. George Tucker, ed., Blackstone's Commentaries, Volume 1 at 143 n. 40, 41 (Philadelphia, 1803).

45. William Rawle, A View of the Constitution 125-6 (2d ed., Philadelphia. 1803).

46. Joseph Story, Commentaries on the Constitution, vol. 2 at 746 (1833).

47. Act of May 8, 1792; Second Cong., First Session, ch. 33.

48. Bliss v. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822).

49. State v. Mitchell, (3 Black.) 229.


50. State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840).

51. State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas Constitutional provision at issue was narrower than the second amendment, as it protected keeping and bearing arms "for the common defense." Id. at 34.

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

53. Dred Scott v. Sandford, 60 U.S. 691,705.

54. The most comprehensive work in this field of constitutional law is Steven Halbrook, the Jurisprudence of the Second and Fourteenth Amendments (Institute for Humane Studies, Menlo Park, California, 1979), reprinted in 4 George Mason L. Rev. 1 (1981).

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

56. Id. at 478.

57. H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871). 58. See generally Halbrook, supra, at 42-62.

59. Slaughterhouse Cases, 83 U.S. 36 (1873).

60. United States v. Cruikshank, 92 U.S. 542 (1876).


61. Presser v. Illinois, 116 U.S. 252 (1886).

62. Miller v. Texas, 153 U.S. 535 (1894).

63. United States v. Miller, 307 U.S. 175 (1939).

64. Id. at 178, 179.




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