THE RIGHT TO
BEAR ARMS:
THE
DEVELOPMENT
OF THE
AMERICAN EXPERIENCE
by John Levin*
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¦ Reprinted by permission of: Chicago Kent College
of Law ¦
¦ 1971. ¦
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I. Introduction
As the crime rate
in the United States grows and pressures mount for laws restricting the use of firearms,
the need for an understanding of the development of the "right to bear
arms" has increased. Perhaps more than any other "right"
enumerated in the federal and state constitutions, the "right" to
bear arms was directed to maintaining a balance of power within our society. The
"right to bear arms" developed at a time when a well-armed population
was necessary for defense, and when the social and political structure was kept
in balance by a balance of armed power.
While the
American "right to bear arms" developed at the time of the
Revolution, it grew out of the duty imposed on the early colonists to keep arms
for the defense of their isolated and endangered communities. The definition of
"bearing arms" as the phrase was used in legal instruments up to
revolutionary times was "serving in an organized armed force."1
It did not imply any personal right to possess weapons. For example, when
Parliament in drafting the English Bill of Rights2 or Blackstone in
his Commentaries on the Laws of England3
intended to convey the meaning of a personal right to possess arms, they spoke
of the right to have arms, not of
the right to bear arms.
II. Early History
A. The Colonial Period
The earliest colonial
statutes requiring that the colonists arm themselves were Virginia statutes of 1623
stating that "no man go or send abroad without a sufficient party will
[sic] armed," and that "men go not to worke in the ground without
their arms (and a centinell upon them)."4 In 1658 Virginia
required that "every man able to beare armes have in his house a fixt
gunn."5
The colony, being unable to afford to arm its militia or troops, required them
to arm themselves.6
If the militia, however, found itself under-armed, the county courts could levy
on the population for the provision of arms and distribute them to those not
provided - the distributes then paying for the arms at a reasonable rate.7
Massachusetts in 1632 required each person to
"have...a sufficient musket or other serviceable peece for war...for
himself and each man servant he keeps able to beare arms."8
In the Code of 1672 men were to provide their own arms, but arms would be supplied
to those unable to obtain them. In New York, each town was to keep a stock of
arms, and each man between 16 and 60 was to have arms.9 Even those not
obligated to serve in the militia were required to keep arms and ammunition in
their houses.10
The militia provisions of the Connecticut Code of 1650 said, "All persons...shall
beare arms...; and every male person...shall have in continuall readiness, a good
muskitt or other gunn, fitt for service." South Carolina had similar codes.11
This duty to
keep and bear arms was limited by the interest of colonial governments in
preventing the use of firearms for harmful ends. In order to prevent civil disturbances
the colonial governments strove to keep arms from falling into the "wrong
hands." To provide against Negro insurrections, Virginia forbade Negroes
from carrying arms without their masters' certificate.12 Pennsylvania had
a similar provision by 1700,13 and South Carolina even required that
the master keep all arms not in use safely locked up in his house.14
Virginia forbade the sale of arms or ammunition to Indians,15
and Massachusetts required that Indians possess a license to carry a gun within
certain areas of the colony.16
In times of
civil disturbance the colonies controlled arms to protect the security of
orderly government. For example, in 1692 the Massachusetts Assembly felt it
necessary to arrest "such as shall ride, or go armed offensively before
any of their majesties' justices or other of their officers or ministers doing
their office or elsewhere by night or by day, in fear or affray of their
majesties' people."17
In addition
to those laws preventing arms from falling into the hands of those groups
openly hostile to colonial society, statutes regulated the conditions under
which arms could be used. As the settlements grew crowded, shooting was
restricted in order to protect people and livestock. By 1678 Massachusetts forbade
shooting "so near or into any House, Barn, Garden, Orchards or High-Wayes
in any town or towns of this Jurisdiction, whereby any person or person shall
be or may be killed, wounded or otherwise damaged."18 In order to
prevent fires caused by gunfire, Pennsylvania in 1721 forbade firing a gun
within the city of Philadelphia without a special license from the governor.19
Pennsylvania also forbade hunting by anyone on improved lands without the
permission of the owner, and forbade those not qualified to vote from hunting
on unimproved lands without the permission of the owner.20
Colonial statutes
established a duty to keep and bear arms for the defense of the colonies and
regulated the use of the arms in circulation. The American Revolution in turn
provided fertile ground for the growth of the concept of the right of
revolution and the related right to bear arms.
B. The Revolutionary Period
During the
revolutionary period the issue of arms and the bearing of arms developed along
two distinct lines. One line of development related to the balance of military
power between the people and their respective governments. The people feared
that if the state or federal government became too powerful, that government
would abridge the liberties of the people and impose its will by force. The
other line of development related to the balance of military power between the
governmental bodies of the union. The state governments feared that if they
entrusted too much power in the hands of the central government, that
government would destroy the political and military independence of the states.
Both lines of development concerned the creation of a military balance within
the political structure which would result in the maintenance of liberty of the
constituent parts-whether personal liberty under a government or state liberty in
a union; and both lines of development resulted in the creation of a "right
to bear arms" in order to insure the liberty of those constituent parts.
The colonists,
fearful of oppression by governmental power, and being aware of the events of
17th Century England, believed that liberty was guaranteed by giving the rulers
as little power as possible and by balancing governmental power with popular
power.21
The foremost factor in this balance of power was the existence of a standing army.
Standing armies had been used by the English crown and by continental monarchs to
impose their will on their subjects,22 and royal forces
had been used by the English crown to intimidate and control the colonies.23
In 1774 the Continental Congress declared that keeping a "standing army in
these colonies, in time of peace, without the consent of the legislature of
that colony, in which such army is kept, is against law."24
In 1775 the draftsmen of the Declaration of the Causes and Necessity of Taking
up Arms25
gave the presence of royal troops a prominent role in the declaration, and several
sections of the Declaration of Independence were given to the issue.26
Colonial mistrust of standing armies extended even to colonial troops. In 1776
Sam Adams wrote:
[A] standing army, however necessary it be at some
times, is always dangerous to the liberties of the people. Soldiers are apt to
consider themselves as a body distinct from the rest of the citizens. They have
their arms always in their hands. Their rules and their discipline is severe. They
soon become attached to their officers and disposed to yield implicit obedience
to their commands. Such a power should be watched with a jealous eye.27
III. Constitutional Provisions
The state constitutions framed during the War
for Independence reflected the fears of a standing army. The framers felt that
such an army would create an overbearing force at the disposal of the state
governments. All the states included provisions regarding standing armies and
militia in their bills of rights. Several had provisions similar to Virginia's:
That a well-regulated militia, composed of the
body of the people, trained to arms, is the proper, natural, and safe defense of
a Free State; that standing armies, in time of peace, should be avoided, as dangerous
to liberty; and that in all cases the military should be under strict
subordination to, and governed by, the civil power.28
Several others were similar
to that of Maryland:
XXV. That a well-regulated militia is the proper
and natural defense of a free government.
XXVI. That standing armies are dangerous to
liberty, and ought not to be raised or kept up, without the consent of the
Legislature.
XXVII. That in all cases, and at all times, the
military ought to be under strict subordination to and control of the civil
power.
XXVIII. That no soldier ought to be quartered
in any house, in time of peace, without the consent of the owner; and in time
of war, in such manner only, as the Legislature directs.
XXIX. That no person, except regular soldiers,
mariners, and Marines in the service of this State, or militia when actual
service, ought in any case to be subject to or punishable by martial law.29
Some specifically mentioned a "right to bear
arms," such as Pennsylvania's:
That the people have a right to bear arms for the
defense of themselves and the State; and as standing armies in the time of
peace are dangerous to liberty, they ought not to be kept up. And that the military
should be kept under strict subordination to, and governed by, the civil power.30
North Carolina included a "right to bear
arms" for the "defense of the State,"31 and
Massachusetts included such a right for the common defense."32
Widespread copying by the draftsmen of state constitutions created, in part, the
similarity between provisions.33 These provisions were to be the
basis of the militia provisions in the federal Constitution and Bill of Rights.
When the draftsmen of the majority of the
state bills of rights wrote of replacing the standing army with a popular militia,
they believed it would remove a source of arbitrary military power from the
hands of the state governments and replace it with a military less likely to oppress
the people.34
They attempted to structure the political and military balance in the new
states by making the governments less powerful and the citizens fore powerful. The
"right to bear arms" was a more extreme and revolutionary manifestation
of this restructuring. By having a right to "bear arms," i.e., to serve in the armed forces of
the state, the people would have far greater military power than if the militia
were merely the preferred defense, for the state governments would be unable to
maintain a narrowly based standing army against the interests of the people. Rather
the people would rely on their "right" to bear arms and demand that
the defense force be broadly based.
The "right to have arms" was an adjunct to the right of revolution. The
right of revolution is the natural right of a people to overthrow their
government when that government no longer serves the purpose for which it was formed.
By the middle of the 18th century, Blackstone had recognized that the primary
rights of Englishmen-"personal security, personal liberty, and private
property"-could not be maintained solely by law, for "in vain would
these rights be declared, ascertained, and protected by the dead letter of the laws,
if the constitution had provided no other method to secure their actual
enjoyment."35
There were auxiliary rights in order to enable the subject to preserve the
primary rights, and,
The fifth and last auxiliary right of the
subject...is that of having arms for their defense, suitable to their condition
and degree, and such as are allowed by law. Which...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 restrain the violence
of oppression.36
The provisions in the state constitutions granting
a "right to bear arms" were not intended to permit a public allowance
of the right of revolution. In the first place, the phrase "to bear arms" only meant serving in
an organized armed force.37
In the second place, the right of revolution, or at least a statement of the principle
of that right, was specifically contained in other sections of most state
constitutions.38
In the third place, the guaranty of the "right to bear arms" or
similar statements of preference for the militia was contained in that section
of the constitutions directly concerned with controlling the military power of
the state and not in the section recognizing the right of revolution.
When the Constitutional Convention met on May
14, 1787, it was faced with some issues quite dissimilar to those which had troubled
the states. In the years during and immediately following the Revolution, the
doctrine of the natural right of revolution was an accepted part of colonial
political theory.39
After the Revolution, however, the need for stable and orderly government grew,
and the philosophy of rebellion withered.40 The fundamental problem
facing the convention was not to support and nourish a revolutionary situation,
but to create a viable federal government out of the jealous and independent
states. One of the major aspects of this problem was the creation of a national
army. The delegates to the convention feared that if the new federal government
could obtain sufficient military power, it could then impose its will on the
states and on the people.
The delegates, however, did not consider the new
federal standing army to be a danger to the states or the people since Congress
would have strict control over the appropriations for troops, and most
delegates assumed that the standing army would be small.41 The Articles of Confederation
had left complete control of land forces in the hands of the states which
raised them,42
and by 1788 the Army of the Confederation consisted of only 679 officers and
men.43
The question of the balance of military power between the state and the federal
government was raised rather on the issue of federal control over the state
militia.
On August 18, 1787, a motion was made in the
convention to give Congress the power "to make laws for the regulation and
discipline of the Militia of the several 'states reserving to the States the
appointments of Officers."44 Here the military power of the
states was at stake. John Dickinson exclaimed that "we are come now to a
most important matter, that of the sword...The states never would or ought to give
up all authority over the Militia."45 Oliver Ellsworth
believed that "the whole authority over the Militia ought by no means to
be taken away from the States who's consequence would pine away to nothing
after such a sacrifice of power."46 Supporters of
the motion recalled how ineffectual the militia was during the Revolution. They
stressed the need for an effective and centralized military.47
When the debate continued on August 23rd, Edmund
Randolph felt that the militia could be trusted to look after the liberties of
the people. He asked, "What dangers there could be that the Militia could
be brought into the field and made to commit suicide on themselves. This is a
power that cannot from its nature be abused, unless indeed the whole mass should
be corrupted."48
Elbridge Gerry stated, when a motion was made to allow the federal government to
appoint the general officers, that "as the States are not to be abolished,
he wondered at the attempts that were made to give powers inconsistent with their
existence."49
James Madison replied: "As the greatest danger is that of disunion of the
States it is necessary to guard against it by sufficient powers to the Common Government
and as the greatest danger to the liberty is from large standing armies, it is
best to prevent them by an effectual provision for a good Militia."50
A compromise was reached whereby the federal
government would maintain a standing army plus have the authority to regulate
and call out the militia, and the states would have authority over the militia
except when it is called into federal service. The results of the compromise appear
in article I, section 8 of the United States Constitution declaring that
Congress shall have power:
To make Rules for the Government and
Regulation of the land and naval Forces;
To raise and support Armies, but no
Appropriation of Money to that Use shall be for a longer term than two Years:
To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining
the Militia, and for governing such Parts of them as may be employed in the
Service of the United States, reserving to the States respectively the Appointment
of the Officers, and the Authority of training the Militia according to the discipline
prescribed by Congress;
Thus, a tentative military
balance was achieved between the federal government and the states.
Before the Constitution was ratified, however,
its provisions were debated before the state legislatures and in the press. The
militia provisions were again argued in terms of the balance of military power
between the state and the federal government. Charles Pinchkney argued for a
federalized militia to give the federal government the power to impose its will
on the states:
The exclusive right of establishing regulations
for the Government of the Militia of the United States ought certainly to be
vested in the Federal Councils. As standing Armies are contrary to the Constitutions
of most of the States, and the nature of our Government, the only immediate aid
and support that we can look up to, in case of necessity, is the Militia ...
Independent of our being obliged to rely on the Militia as a security against
Foreign Invasions or Democratic Convulsions, they are in fact the only adequate
force the Union possesses, if any should be requisite to coerce a refractory or
negligent Member, and to carry the Ordinances and Decrees of Congress into execution.
This, as well as the cases I have alluded to, will sometimes make it proper to
order the Militia of one State into another. At present the United States possesses
no power of directing the Militia, and must depend upon the States to carry their
Recommendations upon this subject into execution...To place therefore a necessary
and Constitutional power of defense and coercion in the hands of the Federal
authority, and to render our Militia uniform and national, I am decidedly in opinion
they should be bound to comply with, as well as with their Regulations for any
number of Militia, whose march into another State, the Public safety or benefit
should require.51
Luther Martin, speaking before the Maryland legislature,
argued against the federalized militia as it would give the federal government
so great a power that it could destroy the integrity of the states:
[Through] this extraordinary provision, by
which the Militia, the only defense and protection which the State can have for
the security of their rights against arbitrary encroachments of the general
government, is taken entirely out of the power of their respective States, and
placed under the power of Congress...It was argued at the Constitutional convention
that, if after having retained to the general government the great powers
already granted, and among those, that of raising and keeping up regular troops,
without limitations, the power over the Militia should be taken away from the
States, and also given to the general government, it ought to be considered as the
last coup de grace to the State
governments; that is must be the most convincing proof, the advocates of this system
design the destruction of the State governments, and that no professions to the
contrary ought to be trusted: and that every State in the Union ought to reject
such a system with indignation, since, if the general government should attempt
to oppress and enslave them, they could not have any possible means of
self-defense...52
Superimposed upon this debate over the balance
of power between the states and the federal government was the issue of the
balance of power between the people themselves and the new government. To
assuage fears that the new federal government would infringe upon the rights of
the people, the authors of The
Federalist raised the factors of militia, arms, and the right of revolution
in describing how the new government could be controlled. Federalist Number 28
mentioned the right of revolution:
If the representatives of the people betray their
constituents, there is then no recourse left but in the exertion of that
original right of self-defense which is paramount to all positive forms of government.53
And the military power of
the states:
When will the time arrive that the federal government
can raise and maintain an army capable of erecting a despotism over the great
body of the people of an immense empire, who are in a situation, through the medium
of their States governments, to take measure for their own defense, with all
the celerity, regularity and system of independent nations?54
The 46th Federalist by Madison
discussed the armed population and its relationship to the militia and the
central government:
Besides the advantage of being armed, which the Americans possess over
the people of almost every other nation, the existence of subordinate
governments to which the people are attached, and by which the Militia officers
are appointed, forms a barrier against the enterprises of ambition, more insurmountable
than any which is simple government of any form can admit. Notwithstanding the military
establishments in the several kingdoms of Europe, which are carried as far as
the public resources will bear, the governments are afraid to trust the people with
arms.55
Though the Constitution was ratified, the
issue of the federal militia was not resolved until adoption of the second amendment.
Several of the states had suggested during their ratifying conventions that a
bill of rights be added to the United States Constitution.56
When such a bill of rights was debated in the First Congress, the militia
amendment was first reported out of committee of the House of Representative
reading:
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.57
Several of the representatives objected to the
provision excusing those people "religiously scrupulous" from bearing
arms. Elbridge Gerry stated that as the purpose of the militia "is to
prevent the establishment of a standing army" it was "evident, that
under this provision, together with their own powers, Congress could take such
measures with respect to a Militia, as to make a standing army necessary."
This could be accomplished by Congress using "a discretionary power to
exclude those from the Militia who have religious scruples."58
In such event, so many citizens would attempt to avoid Militia duty on
religious grounds that a standing army would be necessary for national defense.
In any event the religious exemption from the militia
was dropped and the amendment in its final form read:
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.59
From the debates it seems clear that the intent
of Congress in passing the second amendment was to prevent the federal government
from destroying the state militia. Pinckney would keep a defense force uniform and
at the disposal of the federal government. Martin was assured that the federal
government would not emasculate the states and leave them at the mercy of
federal troops. The "right to bear arms" was a corporate right used
to insure that a desired balance between liberty and authority within the union
would be maintained.
Attempts were made to include a personal right
to have arms in the Bill of Rights. Sam Adams introduced a bill in the Massachusetts
legislature that the state support an amendment holding that the
"Constitution be never construed to authorize Congress to...prevent the
people of the United States, who are peaceable citizens from keeping their own
arms."61
Though these provisions were never adopted, they indicate that there has never
been any absolute "American" philosophy on the right to bear arms. "This
confusion arises from America's situation of being a frontier nation created out
of revolution and espousing a belief in revolution but which also desires and
needs to create an orderly social and political structure.
The result has been the use of the concept of
the right to bear arms to support several different, and often contradictory,
theories of the relation of armed citizens to the government. The judicial
opinions of the courts of the various jurisdictions in the United States best exemplify
this situation.
IV. Relevant Court Decisions
A. State
Courts
The first pronouncement on the right to bear
arms was by a Kentucky court in Bliss v.
Commonwealth.62
The court held that "the right of the citizens to bear arms in
defense of themselves and the State must be preserved entire," and all legislative
acts "which diminish or impair it as it existed when the Constitution was
framed are void."63
Thus an act prohibiting the wearing of concealed arms was declared void. This
point of view which considers the right to bear arms as absolute, unabridgable,
and personal is rare. Most cases follow the reasoning of Texas court which
asked "How far personal liberty may be restrained for the prevention of
crime."64
A few states adopted the thinking of the early
Tennessee case of Aymette v. States65
which held that the right to bear arms was a right of the people to enable them
to rise up and defend their rights against an oppressive government. This concept
was similar to Blackstone's presentation of the right to bear arms as a public
allowance of the right of revolution. Courts holding this theory consider that,
as the right is by public allowance, the state can regulate the use of arms to insure
the public peace and welfare. This position was well presented by the Arkansas
court in Haile v. State:66
The constitutional provision sprung from the former
tyrannical practice, on the part of governments, of disarming the subjects, so
as to render them powerless against oppression. It is not intended to afford citizens
the means of prosecuting, more successfully, their private broils in a free
government. It would be a perversion of its object to make it a protection to
the citizen, in going, with convenience to himself, and after his own fashion, prepared
all time to inflict death upon his fellow citizens, upon the occasion of any
real or imaginary wrongs.67
While most courts have not attempted
to counter the assertion of the right of revolution, an earlier Arkansas court
had stated in State v. Buzzard68
that such a right was unnecessary under a free, republican government which could
be changed at the will of the people.
The Aymette
line of cases is perhaps truest to the intention of the draftsmen of the state
bills of rights. The right to bear arms was a means of preserving the liberty
of the people by balancing the military power in the hands of the state by
military power in the hands off the people. The desire to maintain such a
balance has had a long history dating from feudal times, through the English
revolution to the present day. Such thinking, however, is a rare in judicial
opinion. Similarly rare is the unitary concept of society and government
expressed by the Kansas court in City of Salina
v. Blakesly.69
The provision...that 'the people have the right
to bear arms for their defense and security' refers to the people as a
collective body. It was the safety and security of society that was being
considered when this provision was put into our Constitution...The provision in
question applies only to the right to bear arms as a member of the State
Militia, or some other military organization provided for by the law.70
Such thinking indicates
belief that there is no need to provide for a military balance within the political
and social structure when that structure is responsive to the people.
Most state courts have never spoken of the right
to bear arms in the sophisticated terms of political balance, but rather
treated the right as synonymous with the right of self-defense. In 1950 an
Illinois court warned in the construction of an arms control statute "that
it is aimed at persons of criminal instincts, and for the prevention of crime, and
not against use in the protection of person or property."71
In Andrews v. State72,
a dissenting judge found that "the right exists only for the purpose of
defense: and this is a right which no constitutional or legislative enactment can
destroy." The dissent in the Oklahoma case of Pierce v. State73
proclaimed-"From time immemorial, the home, be it ever so humble, has been
sacred-the castle of the occupant-with the right to repell [sic] invasion or
any trespass."
Answers to such claims vary from the flat declaration
in Buzzard that individuals have
surrendered the right of self-defense to the society as a whole, to the more
moderate holding in Andrews that
"every good citizen is bound to yield his preference as the means to be
used, to the demands of the public good."74 A Michigan court
put forth a novel answer saying that the state's power is "subject to the
limitation that its exercise be reasonable [and does not result] in the prohibition
of those arms which, by the common opinion and usage of law-abiding people, are
[to be kept for] protection of person and property."75
These debates over the issue of the right of self-defense,
though of primary interest today, have little relation to the intent of the
draftsmen of the Bill of Rights. The right of self-defense had had a long history;
but its history was parallel to, not connected with, the right to bear arms. The
use of the right of self-defense to support a right to bear arms is of modern usage.
Nevertheless, its modernity does not affect its relevance. The concept is the
supreme law in several states of the union, and is a concept to be considered
by any legislature hoping to pass restrictive arms legislation.
The confusion in the state courts over the right
to bear arms is partly due to the judicial process itself. A court generally does
not base its decision on political theory but considers the facts of the
particular case before it. If a court feels a particular restrictive arms statute
to be necessary and fair, and if the facts of the case before it are favorable,
then the court will uphold the statute using whatever language and doctrine is
required to so hold. If the statute appears unfair, if the times are
unfavorable, or if the factual situation is difficult, then the court will use
the language and doctrine necessary to overturn the statue. For example, a
Florida court stated in 1912 that the right to bear arms "was intended to
give the people the means of protecting themselves against oppression and
public outrage, and was not designed as a shield for the individual man."76
Fifty years later the court declared that "doubtless the guarantee was
intended to secure to the people the right to carry weapons for their protection."77
Similar situations have occurred in several states.78 The development of
federal doctrine, however, has followed a more constant and evolutionary
course.
B. Federal Courts
Cases concerning the second amendment arose in
the federal courts only after the Civil War. The first of such cases, U.S. v. Cruikshank,79
implied that there was a personal right to bear arms upon which Congress could not
infringe. The central point of the opinion, however, was to state that the second
amendment did not apply to state governments, and such governments could pass whatever
legislation they desired without fear of federal sanction.
Cruikshank
was not directly concerned with the right to bear arms or the militia, but with
civil rights legislation. The first federal case to be directly concerned with arms
was Presser v. Illinois.80
Presser was convicted for leading a military
parade in violation of an Illinois statute which forbade such parades by any group
but the state militia. Presser claimed that the Illinois statute was in
violation of the second amendment. The court relied on Cruikshank in stating that the "amendment is a limitation only
upon the power of Congress and the National Government, and not upon that of
the States,"81
but added a restriction upon the State's power:
It is undoubtedly true that all citizens capable
of bearing arms constitute the reserved military force or reserve Militia of
the United States as well as of the States; and, in view of this prerogative of
the General Government, as well as of its general powers, the States cannot,
even laying the constitutional provision in question out of view, prohibit the
people from keeping and bearing arms, so as to deprive the United States of
their rightful resource for maintaining the public security, and disable the
people from performing their duty to the General Government82
This principle harkens back
to the citizen army of Saxon times and had little relevance in 1886. It was
understandable, however, that only twenty years after the Civil War, the
Supreme Court would be concerned with state attempts to weaken the central
government by withholding arms and troops from national service. Nevertheless, the
restriction is a complete reversal from the aims of the draftsmen of the
Constitution and Bill of Rights which was to restrict the military power of the
central government and give the state more leverage.
On one subject Presser was quite clear-there was no right to band together in
paramilitary organizations:
Military organization and military drill and parade
under arms are subjects especially under the control of the government of every
country. They cannot be claimed as a right independent of law. Under our political
system they are subject to the regulation and control of the State and Federal Governments,
acting in due regard to their respective prerogatives and powers.83
Thus, whatever right to bear arms was
recognized, that right was limited to arms and organizations that did not
threaten the security of the government. The court did not approve of an armed
population as a balance to governmental power.
For many years after Presser the issue of the second
amendment appeared in federal courts only in reaffirming the Cruikshank holding that the second
amendment did not apply to the states.84 In the 1930's
Congress passed two laws, the Federal Firearms Act85 and the National
Firearms Act,86
to control commerce in certain types of dangerous weapons. Both acts were
attacked in court for being in violation of the second amendment. In upholding
the National Firearms Act, the district court held in United States v. Adams87 that the second amendment
"refers to the Militia, a protective force of government; to the
collective body and not individual rights." This language was quoted verbatim
by another district court in United States
v. Tot88
in upholding the Federal Firearms Act. Neither court went into the problem of
the extent to which the collective right could be regulated, but both made
clear that no personal right to own arms existed under the federal
Constitution.
The issue of regulating the collective right
arose in United States v. Miller89
in which the Supreme Court held that as long as the weapon regulated did not
have a direct relationship to the arms used in maintaining a well-regulated
militia, they could be controlled:
In the absence of any evidence tending to show
that possession or use of a 'shotgun having a barrel of less than eighteen
inches in length' at this time had some reasonable relationship to the preservation
or efficiency of a well-regulated Militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument.90
The difficulty with such an
interpretation is that were a weapon to have such a "reasonable
relationship" it would be a protected weapon under the second amendment. The
circuit court in Cases v. United States91
recognized this problem saying: "But to hold that the Second Amendment limits
the federal government to regulations concerning only weapons which can be
classed as antiques or curiosities,-almost any other might bear some reasonable
relationship to the preservation or efficiency of a well-regulated militia unit
of the present day,-is in effect to hold that the limitation of the second
amendment is absolute."92 The court also recognized that such
an interpretation would prohibit the federal government from prohibiting
private ownership of heavy weapons "even though under the circumstances of
such possession or use it would be inconceivable that a private person could
have any legitimate reason for having such a weapon."93
The court then decided it would be impossible to formulate any general test to
determine the limits of the second amendment and each case would have to be
decided on its individual merits.
The federal courts have interpreted the right
to bear arms contained in the second amendment very narrowly. The right exists
only to the extent that the arms are required for a well-regulated militia. Since
Presser, however, the second
amendment has been interpreted as a source of federal power and not as a
protection of state power. The need for the old military balance between state and
national governments had disappeared, and the federal courts no longer
recognized its existence.
Similarly, the federal courts no longer
recognized the need for a military balance between the population and its
government. Rather, the courts have held that the interests of order and
stability must be balanced against the need for revolution, and such interests
may outweigh any need for the right of revolution. Thus, there could also be
restrictions on other, subsidiary natural rights such as the right to bear arms.
As Justice Vinson said in Dennis v. United
States94
in upholding the Smith Act:
That it is within the power of the Congress to protect the government of the United States
from armed rebellion is a proposition which requires little discussion. Whatever
theoretical merit there may be to the argument that there is a
"right" to rebellion against dictatorial governments is without force
where the existing structure of the government provides for peaceful and
orderly change. We reject any principle of governmental helplessness in the
face of preparations for revolution, which principle, carried to its logical
conclusion, must lead to anarchy.95
Even though the right of revolution has never been
recognized by the courts of the United States, armed rebellion has been - and
still is - an important part of the American political tradition. From the
early Republic to the present day dissident elements who have not been able to
achieve their goals within the political structure have resorted to arms as a
final resort.96
In many instances, such elements have been punished as rebellious or
treasonable, but in others the use or threat of violence has forced the political
structure to compromise with the dissidents. Though not protected by the
Constitution, this use of arms is the most important and relevant use of arms
today.
v. Conclusion
Regardless of the long history of violence and
assassination in the United States, the right to bear arms has remained closely
and jealously guarded. This right appears to provide the individual with the means
of protecting himself against other individuals and of protecting himself
against his government. The maintenance of a military balance within the
political structure was the genesis of this right, and the desire to continue such
a balance will promote its continuation. The right to bear arms supports man in
his fear of being defenseless in the face of personal danger or oppression.
The possibility, however, of maintaining a military
balance within a political structure has become smaller as society has become more
complex and warfare more destructive. In the words of Roscoe Pound:
In the urban industrial society of today a general
right to bear efficient arms so as to be enabled to resist oppression by the
government would mean that gangs could exercise an extra-legal rule which could
defeat the whole Bill of Rights.97
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 become more futile, meaningless and dangerous.
FOOTNOTES
+---------------------------------------------------------+
¦ Assistant Professor, Chicago-Kent
College of Law, ¦ ¦ Illinois Institute of Technology. B.A., 1964, ¦ ¦ Brandeis University;
J.D., 1968 Harvard Law School; ¦
¦ M.A., 1971, Washington
University, St. Louis, Mo.; ¦ ¦ Admitted to the Illinois Bar in 1968. ¦
+---------------------------------------------------------+
1 See the materials on the
colonial statutes and on the United States Constitution discussed below.
2 1 W & M. I, St. 2, ch.
2 (1689)
3 W. Blackstone,
Commentaries on the Law of England 143-44 (1776)
4 Acts of the Grand Assembly
1623-1624, Nos. 24 and 25
5 Acts of the Grand Assembly
1658-1659, Act 25.
6 Acts of the Grand Assembly
1684, Act 4.
7 Acts of the Grand Assembly
1673, Act 2.
8 The Compact with the
Charter and General Laws of the Colony of New Plymouth 44-45 (1836)
9 Duke of York's Laws
(1665-1676).
10 First Gen. Assembly, 2d
Sess., ch. 20 (October 1684).
11 S.C. Stat., No. 206
(1703)
12 Acts of the Grand
Assembly 1680, Act 10.
13 Penn. Stat., ch. 61 5
(1700)
14 S.C. Stat., No. 314
(1712)
15 Acts of the Grand
Assembly 1633, Act 10.
16 Gen. Ct., Sess. of May
23, 1677
17 Province Laws 1692-1693,
ch. 18, 6.
18 Council held in Boston,
March 28, 1678.
19 Penn. Stat., ch. 245, 4
(1721)
20 Penn. Stat., ch. 246, 3d
(1721).
21 C.E. Merriam, A History
of American Political Theories 83 (1926).
22 See e.g., G.M Trevelyan,
I-III History of England (1953)
23 S. Morison, The Oxford
HIstory of the American People ch. XII, XIII, and XIV (1965).
24 R. Perry and J. Cooper,
Sources of our Liberties 288 (1959) (hereinafter cited as Sources).
25 Id. at 295
26 Id. at 319
27 Letter to James Warren,
quoted in M. Jensen, The New Nation - A History of the United States During the
Confederation 1781-1789 29 (1962).
28 Sources at 312.
29 Id. at 348
30 Id. at 330
31 Id. at 356
32 Id. at 376
33 R. Rutland, The Birth of
the Bill of Rights 1776-1791 passim
(1962)
34 See the material on the
discussion of the United States Constitution below
35 Supra n.3 at 140
36 Supra n.3 at 143-144.
37 See text at n.1, n.2, and
n.3.
38 E. Douglas, Rebels and
Democrats passim (1965)
39 C. Becker, The
Declaration of Independence 7-8 (1942).
40 M. Jensen, The New Nation
- A History of the United States During the Confederation
41 M. Farrand, II The
Records of the Federal Convention of 1787 329-30 (1966).
42 H. Commager, I Documents
of American History 112-13 (7th ed. 1963).
43 Supra n.41 at 365.
44 Id. at 330
45 Id. at 331
46 Id.
47 Id.
48 Id. at 387. For a
discussion of the relation of the militia to popular uprisings in colonial
America, see P. Maier, Popular Uprisings
and Civil Authority in Eighteenth-Century America, 28 Wm. & Mary Q.
(3rd Ser. 1970).
49 Supra n.41 at 388
50 Id.
51 Id. III at 118-19.
52 Id. at 208-09
53 The Federalist, No. 28
(Hamilton)
54 Id.
55 The Federalist, No. 46
(Madison)
56 For a study of the forces
at work to create a bill of rights, supra
n.33.
57 1 Annals of Congress 778.
58 Id. at 778-79
59 U.S. Const. Amend. II.
60 Pierce & Hale,
Debates of the Massachusetts Convention of1788 86-87, quoted in Feller and Gotting.
The Second Amendment: A Second Look,
61 Nw. U.L. Rev. 47 (1966).
61 Feller and Gotting, The Second Amendment: A Second Look, 61
Nw. U.L. Rev. 59 (1966).
62 2 Ky. 90 (1822).
63 Id. at 91
64 English v. State, 35 Tex.
437, 477 (1872)
65 2 Tenn. 154 (1840)
66 38 Ark. 564 (1882).
67 Id. at 566
68 4 Ark. 18,24 (1843).
69 70 Kan. 230, 83 P. 619
(1905).
70 Id. at 231-32, 83 P. at
620
71 People v. Liss, 406 Ill.
419, 424, 94 N.E.2d 320, 323 (1950).
72 50 Tenn. 165 (1871).
73 275 P. 393, 397 Okla.
Crim. Ct. App. 1829).
74 50 Tenn. 165, 193 (1871).
75 People v. Brown, 253
Mich. 537, 541, 235 N.W. 245, 246 (1931).
76 Carlton v. State, 63 Fla.
1,9,50 So. 486, 488 (1912)
77 Davis v. State, 146 So.2d
892, 893 (Fla. 1962).
78 Cf. State v. Buzzard, 4
Ark. 18 (1843); Wilson v. State, 33 Ark. 557 (1878); Haile v. State, 38 Ark. 564
(1882); City of Akron v. Williams, 172 N.E.2d 28 (Mun. Ct. Akron, Ohio 1960);
City of Akron v. Williams, 177 N.E.2d 802 (Ct. App. Ohio 1960), aff'd without
opinion, 172 Ohio St. 287, 175 N.E.2d 174 (1961).
79 92 U.S. 542 (1874)
80 116 U.S. 252 (1886).
81 Id. at 264.
82 Id. at 265
83 Id. at 266-67.
84 Miller v. Texas, 153 U.S.
535 (1894)
85 15 U.S.C.A. 901-909.
86 26 U.S.C.A. 5801-5862
87 11 F.Supp. 216, 219 (S.D.
Fla. 1935).
88 28 F.Supp. 900, 903 (D.
Conn. 1939); rev'd on other grounds, 319 U.S. 403 (1943).
89 307 U.S. 174 (1939).
90 Id. at 178.
91 131 F.2d 916, (1st Cir.
1942); cert. den. sub. nom. Cases Velasquez
v. United States, 319 U.S. 770 (1943); rehearing denied, 324 U.S. 889 (1945).
92 Id. at 922
93 Id.
94 341 U.S. 494 (1951).
95 Id. at 501
96 See R. Ginger, Age of
Excess (1965), and references cited therein.
97 R. Pound, The Development
of Constitutional Guarantees of Liberty 91 (1957)