Right to keep and bear arms



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Dred Scott case, where it held that the free black Americans were not citizens. The majority indicated that if blacks were regarded as citizens, "entitled to the privileges and immunities of citizens," they would have freedom of speech and assembly, "and to keep and carry arms wherever they went."106


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

Nor has recognition of the right to keep and bear arms been lacking in our century. City bans on handgun carrying have been struck down in North Carolina ("the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions")110


Tennessee,111 and New Mexico.112 The Michigan Supreme Court has stricken a ban on gun ownership by non-citizens with the comment that "the guarantee of the right of every person to bear arms in defense of himself means the right to possess arms for legitimate use in defense of himself (and) his property."113 A similar statute was stricken in Colorado, its Supreme Court expressly rejecting the "collective rights" approach.114 The U.S. Supreme Court, in United States v. Miller,115 held that a court cannot merely take judicial notice that an arm is within the second amendment's protections, but explained:

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

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


The right to keep and bear arms has found its most recent recognition in two 1980 decisions in Oregon116 and Indiana,117 the first striking down a very narrow arms possession ban, the second strictly limiting power to refuse carrying licenses.

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

REFERENCES

*. David T. Hardy received his Bachelor of Arts degree from the University of Arizona where he graduated cum laude in


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

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

with gratitude, the assistance of Bob Dowlut, Frances Averly, and Barbara Goldman in preparation of this report.

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

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

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


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

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

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

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

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

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

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

11. Id.

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


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

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

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

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

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

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

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

20. 6 Hen.VIII c.l3 (1514).

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

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

23. Perrin, supra, at 59-60.

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


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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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


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

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

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

49. Western, supra, at 339.

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

51. Western, supra, at 339.

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

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

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

55. But a few examples: in 1773, Harvard's library contained Harrington and Molesworth; Sidney was added by 1790. The College of New Jersey (today Princeton) boasted Sidney by 1760, as did the New York Society Library. John Adams' private library contained a two volume edition of Sidney and Molesworth; Jefferson at various times bought several different editions of both authors. H. Colbourn, The Lamp of Experience 200-18 (1965).


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

57. Barnett, supra, at 174.

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

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

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

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

62. Id. at 173-74.

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

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

65. Id. at 79.

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

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


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

69. Id.

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

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

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

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

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

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

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

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

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

79. Higginbotham, supra, at 103.


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

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

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

83. 2 Jensen, supra, at 508.

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

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

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

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

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


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

90. Id. at 21-22.

91. Id. at 124.

92. Id.

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

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

95. [Ed. footnote missing in original]

96. [Ed. footnote missing in original]

97. See generally, 1 J. Goebel, History of the Supreme Court of the United States 456 ().

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

99. Id. at 143.

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

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


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

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

104. State v. Reid, supra.

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

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

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

108.


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