HISTORICAL DEVELOPMENT AND
SUBSEQUENT EROSION OF THE RIGHT
TO KEEP AND BEAR ARMS
by James B. Whisker
I. Introduction
At present there
are approximately 20,000 federal, state, county and local laws1
which control, to one degree or another, the ownership and use of firearms by American
citizens. Each legislative session brings additional proposals for legislation
in this area of public policy.2 The growing crime rate in this
country has prompted the drafting of a wide variety of anti-crime bills. Many of
these seek to control violent crimes by placing additional restrictions on the
private ownership of firearms.3
The student of
the law is often confused by the wide latitude given the right to keep and bear
arms by state courts. The question is compounded because the United States Supreme
Court has refused to rule directly on the issue in recent years. No major
decision has been rendered since before World War II.4 Annually, appeals
are made to the Supreme Court seeking constitutional clarification of this right.
Most seek relief from the plethora of a state or local laws; a few ask review
of the several federal laws.
In 1966 the
American Bar Foundation (ABF) began an in-depth review5 of both the law
and public policy materials in an attempt to better the understanding of the right
to keep and own firearms. The ABF admitted in its 1967 published report that "many
questions pertinent to intelligent firearms legislation remain unanswered..."6
They found that "it does seem clear that no really effective legislation
is possible without major altercation in present social and political
priorities."7
The ABF found that the task of gathering good data was difficult. In regard to
current legislation, "the information about relevant facts and estimates of
the effectiveness of existing laws is fragmentary and to an important extent conjectural."8
Further, "[t]here are no comparable and reliable national, state, or
municipal statistics on the number of crimes in which firearms are utilized ...
It must be stressed, however, that the sparsity of relevant record keeping
practices makes it impossible to state with confidence the frequency of
criminal use of firearms..."9 Additionally, the size of the
problem of control is unknown. "How many guns are being talked about in
the proposals for control of firearms? Nobody knows...The best that can be done
is to draw inferences from certain relevant but inconclusive data on the
periphery of the question,... Testimony and opinion from knowledgeable people
usually takes the form of such non-quantitative expressions as 'huge,' 'enormous,'
and 'staggering.'"10
The ABF did not
attempt to create model legislation or to suggest the extent of either individual
ownership of firearms or the degree of control over firearms permitted within the
confines or the objective interpretation of either state of federal
constitutions.
The
[S]hooting
experience, and particularly marksmanship instruction, with military-type small
arms prior to entry into military service contributes significantly to the
training of the individual soldier. [Further,] the more marksmanship instruction,
practice, competition and shooting experience individuals got before entering
[military] service the more effective [these] rifle units will be in combat and
fewer casualties they will suffer.12
II. Historical
Basis of the Second Amendment
The
right to keep and bear arms is one of man's most ancient prerogatives.13
It antedates the purely legalistic right in as much as it is fundamental to primitive
man's hunting and defense activities. Long before governmental institutions came
into being, man kept and carried weapons for such purposes. In this sense, at
least, it ranks as a "natural" right.
Where
social contract thinkers such as John Locke14 and Jean-Jacques
Rousseau15
sought to place the burden of protection of the individual, his family, and his
property on the state, they still recognized that there were incidents when the
state would be unable to properly perform its duty. International law very
clearly recognizes the right of the individual to defend himself, his home, his
family, and his nation.16
Such a right presumes the existence of some set of devices permitting the individual
to exercise these rights.
As
the modern nation came into being, a threefold defense pattern was developed.
By medieval times the system was divided clearly into the standing army, the trained
reserves, and the untrained civilian population.17 In England the term
"housecarts" was most often used to describe the real army. These
were the mounted troops, recognized today in such concrete forms as knights, the
bowman and the "king's men" of history. They were clearly
professional soldiers. Many were mercenaries fighting for pay either as
"freebooters" or "soldiers of fortune" or for a king who
would rent out their services for a set price.18
The
"select fryd" was similar to the present day National Guard or
reserves and like the "trained bands" of Stuart England. They were
semi-professional soldiers who could, and at least occasionally did, practice other
professions, or they were selected para-military personnel who operated at
several levels.19
Many were constables or other local law officers who had some military training.
Some were retired or even partially disabled soldiers. They occasionally
practiced with arms and undertook other large scale training. Generally, these men
had to be released to return to their homes for harvesting or planting of their
crops. Important to the discussion is the concept that English law was quite
specific about which classes of the "select fryd" had to keep what
kinds of arms in their own homes so that these arms were available at a moment's
notice. Since class membership in medieval
The
"great fryd" or "arriereban"21 was a concept
which meant generally that there existed an obligation of untrained citizens at
large to defend their nation. In some cases this involved men and women, at
other times, it meant the able-bodied men within a certain age bracket. Generally,
the "great fryd" was not required to leave its home territory and
normally could not be required to fight during harvest or planting season. Few
laws required them to serve longer than thirty days at a time. Occasionally,
the more fit could be mustered into the "select fryd" or drafted into
"housecarts."
The
masses of men were generally required to keep certain basic, unsophisticated weapons
in their homes. Often these weapons were items such as bows with a supply of
arrows, a short sword or a pike. In short, the weapons required to be kept were
the ordinary infantry weapons of the time period. Those who either failed to keep
their weapons in good order or did not have the weapon required of them by law,
according to class, were subject to stiff fines or imprisonment.22
Medieval
law required all free men to keep and, under certain circumstances, bear arms.23
In certain cases even slaves were required to bear arms, and, on specified
occasions, were allowed to keep arms. The classification of arms one might be
permitted to keep depended upon one's social or political status and not on
one's type of military association.
The
colonists, when they left
While
the possession of arms was clearly an obligation owed by the citizens in the
early colonial period, the colonists came to think of this as a basic right of
Englishmen. The English who resisted the tyranny of the Stuarts during the same
period helped establish the same precedent when they demanded the right to keep
and bear arms for the Puritan "trained bands."25 Hence the
English Bill of Rights incorporated this right in the basic law of the land,
albeit imperfectly.26
Americans assumed that they possessed all the basic rights of Englishmen.
While
Americans believed they held the same basic concept of the rights of Englishmen
as the people held in
Englishmen
came to view the retention of arms by individuals or by private groups as productive
only of rebellion or insurrection. Of course, savages and foreign invasion were
not a threat to the people in the home country. The colonials saw the
maintenance of arms and munitions stores a necessity and a basic right of
Englishmen. Thus, the stage was set for the confrontation at
The
colonials then sought to protect forever what they had come to view as the rights
of Englishmen. State constitutions during this period universally contained
language protecting these rights of Englishmen, including, the right to bear
and keep arms.29
The
second amendment to the Constitution was a direct product of state constitutions,30
as were most of the enumerated rights stated in amendments one through eight.31
The colonial experience of having seen the keeping and bearing of arms as both
an obligation and a right prompted
A
well regulated militia being necessary to the security of a
In
historical context Madison was clearly trying to combine the ancient archaic
idea of an obligation to keep and bear arms which was necessary "to the
security of a free state" with the much more modern idea of a legal right
to do the same and to do this in such a way as to guarantee that it "shall
not be infringed."33
As the Congress,34
and subsequently the state legislatures saw it, there had to be a device which
would ensure a supply of trained and skilled riflemen for the army while
simultaneously ensuring that the whole body of the American public would have
access to the protection of arms.35
The
founding fathers had a grave fear of a standing army. They created both
constitutional and philosophical mechanisms to ensure against the potential
tyranny which a standing and permanent army threatened.36 Article I,
section 8, in the Constitution provides for power "to raise and support
armies," but limits the period for which money can be appropriated, saying
that no "money to that use shall be for a longer term than two years."37
Hamilton, especially in the Federalist Papers, warned of the evils of standing
armies.38
But, Hamilton suggested, should the armed forces support a tyranny, "if
circumstances should at any time oblige the government to form any army of
magnitude, that army can never be formidable to the liberties of the people
while there is a large body of citizens, little, if any, inferior to them in
discipline and the use of arms, who stand ready to defend their own rights and
those of their fellow-citizens."39
The
objections to standing armies have continued and even added importance to the sentimental
role of the citizen-soldier. The parallel in the contemporary mind to
Cincinnatus was obvious.40
The small federal army placed heavy burdens on the citizen-soldier throughout American
military service from the War of the Revolution through
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 a 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 government.41
Presser is noteworthy for a number
of reasons. First, although the second amendment has not been incorporated
under the fourteenth amendment so as to apply directly to the protection of
citizen rights against state encroachment, as is true of virtually every other
of the first eight amendment liberties, the Supreme Court clearly states its
intention to protect the right from destruction at the hands of state
governments.42
Second, the right to keep and bear arms was first in consideration for federal protection
against state encroachment. At the time of the Presser decision, 1885, the principle
established in Barron v. Baltimore43
which held that the Bill of Rights limited only the federal government and not
the states, was still in effect. It was not until 1925 that Gitlow44 opened the door
for what is generally known as the "doctrine of incorporation," allowing
the first nine amendments to be enforced through the fourteenth amendment on the
states. The subsequent modification, that of "selective
incorporation" of these rights under the criteria set down by Justice
Cardozo in the Palko45
case moved the Court away from concern from the second amendment.46
Third,
the Presser decision suggests that the
real protection for the right to keep and bear arms lies not in its articulation
in the Bill of Rights but in the need for citizen-soldiers. In a way, the Presser decision seems to suggest that
the right is coextensive and coterminous with one of the primary interests of
the state - its interest in self-defense and self-protection. In short, the need
for manpower which can be mustered into the armed forces quickly and which has
the knowledge of common weapons which the common soldier would encounter will
exist as long as the state exists. Thus, the right and obligation to keep and
bear arms will endure so long as there is a state.47
The
importance of the citizen-soldier is well established in old English law from
the Assize of Arms48 to the Stuart period.49 That role is also
found in international law. Originally known in international law as the principle
of "levees en masse,"50 it recognizes the right of citizens
to take up arms for their defense against foreign invasion. The United Nations
Charter notes that "nothing in the charter shall impair the inherent right
of individual or collective self-defense..."51 The United
Nations Universal Declaration of Human Rights states in Article three that "[e]veryone
has the right to life, liberty and security of person,"52
and in Article twelve that "no one shall be subjected to arbitrary interference
with his private family, home or correspondence..."53
The
United States Supreme Court has attempted to define what was meant by the term
"militia"54
as it would be applied to the citizen-soldier. The Court related the term to
established laws of other nations and to our own colonial experience:
The
significance attributed to the term Militia appears from the debates in the [constitutional]
Convention, the history and legislation of Colonies and States, and the writings
of approved commentators. These show plainly enough that the Militia comprised all
males physically capable of acting in concert for the common defense. "A
body of citizens enrolled for military discipline." And further, that ordinarily
when called for service these men were expected to appear bearing arms supplied
by themselves and of the kind in common use at the time.
In
all the colonies, as in
Courts
in general have held that the rights of the citizen-soldier to keep and bear
arms need have only distant relationship to actual military use of the weapons with
which they train.56
This is to say the courts do not require that the citizen need have immediate
use for his weapons, ammunition or skill, but that the potential use of these
skills in a hypothetical case is sufficient. In only one isolated case57
surveyed was the right to keep and bear arms clearly tied to actual militia
use. Here the Kansas court appears to be in error, for the court cites an
earlier case from Massachusetts merely prohibited the public parades of private
militia groups which were not part of the state militia along the same lines of
reasoning used by the Supreme Court in Presser,59
whereas the Kansas court held that the right to keep and bear arms existed only
as a collective right of state militias.60
It
is quite clear that the right to keep and bear arms does not apply to private
militia groups as groups distinct from the standing army or state militias.61
The courts have excepted military or paramilitary groups from protection under the
second amendment. However, the individuals who comprise these groups still have
their own, individual rights to keep and bear arms. Still, they cannot parade
their independent, armed status publicly.
Clearly
it is established that there is a very strong tradition within American history
and law, derived from both our experience as a nation, and from our European heritage,
to sustain the individual's right to keep and bear arms because of the right's
relationship to the training of experienced citizens-soldiers. However, this right,
like all other rights, is not without limitations.62 One of the great
roles of the courts is deciding what these limitations are. In this area the
courts, and especially the federal courts, have provided fewer guidelines than have
been provided for other fundamental rights.
III. Controls
on the Second Amendment
Most
controls have taken one of two basic forms. They are either controls through
taxation or controls through prohibition. At the federal level prohibition has
taken the form of federal control of interstate commerce, rather than a direct prohibition
of certain classes of weapons or prohibition to certain classes of persons. Various
departments have prepared opinions justifying the use of additional federal
powers to combat interstate commerce.63 This is the case
with the most recent federal legislation - the Federal Gun Control Act of 1968.64
Earlier
firearms controls at the federal level took the form of taxation. The National
Firearms Act of 193465
was a revenue measure designed to control various "gangster" weapons through
the imposition of a series of taxes on importer, manufacturers and dealers in such
arms. A transfer tax, normally $200, was assessed on sales of these weapons. To
insure the payment of such taxes, all weapons covered by the transfer tax had to
be individually registered. Possession of such weapons unless registered was a
felony offense.66
The
1934 legislation was augmented by the passage on 1938 of the Federal Firearms Act,67
which followed the earlier precedent in that it was essentially a revenue
measure. One of its primary functions was to license, for a nominal fee,
manufacturers, importers, and dealers in all forms of firearms, not just the
"gangster" weapons covered by the act. The licensing procedure set
certain basic criteria for the licensees. For example, holders could not be either
felons or fugitives from justice. These licenses applied only to those dealing
in interstate or foreign commerce, but the act did rather effectively reach the
overwhelming majority of gun dealers. The act attempted an interface with state
legislation by making it a felony offense to ship a gun to anyone, dealer or
citizen, within a state if that state required a permit to receive that gun unless
the permit was displayed as was appropriate. The 1938 law hinted more strongly
at the argument for controls based in the regulation of interstate commerce
than did the 1934 law, but it was still a revenue bill.
In
May of 1939 these acts were tested in the United States Supreme Court.68
The weapon in question was what is commonly called "a sawed off
shotgun" - a shotgun with a barrel less than eighteen inches in length. The
Court could find no "reasoned relationship to the preservation or
efficiency of a well regulated militia" in that particular gun, or, by
inference, in any gun covered by the National Firearms Act. The tax and license
fees were upheld by the high court.69
Little
has been said in recent years about an expansion of federal control over
firearms by expanding the federal taxing power. The bulk of recently considered
legislation, including the Federal Gun Control Act of 1968,70
has concentrated on the regulation of interstate commerce. As a result, the
Congress has run afoul of the courts.
There
is a strong voice within the liberal minority of the United States Supreme
Court to reinterpret the second amendment in such a way as to invalidate the general
practice of permitting citizens to bear arms, if not to possess them as well. In
a recent decision71
Justices Marshall and Douglas aired this view:
The
police problem is an acute one...because of the ease with which anyone can acquire
a pistol. A powerful lobby dins into the ears of our citizenry that these gun
purchases are constitutional rights protected by the Second Amendment...There
is under our decisions no reason why stiff state laws governing the purchase
and possession of pistols may not be enacted. There is no reason why pistols
may not be barred from anyone with a police record. There is no reason why a
State may not require a purchaser of a pistol to pass a psychiatric test. There
is no reason why all pistols should not be barred to everyone except the
police...Critics say that proposals like this water down the Second
Amendment...But if watering-down is the mood of the day, I would prefer to
water down the Second rather than the Fourth Amendment...72
However,
the Supreme Court stated in another case73 that "unless
Congress conveys its purpose clearly, it will not be deemed to have
significantly changed the federal-state balance"74 by going into "traditionally
sensitive areas"75
such as the regulation of certain criminal activities "readily denounced
as criminal by the States."76 The regulation of handguns which do
not have a demonstrated nexus with interstate commerce were held to be within that
category of state regulation, and hence not the proper area of jurisdiction for
the federal government.
The
Court interpreted the Omnibus Crime Control and Safe Streets Act of 196877
to control only firearms which had a connection with interstate commerce. The
government's error in the case had been that it assumed that the act
"banned all possessions and receipts of firearms by convicted felons, and
that no connection with interstate commerce had to be demonstrated in individual
cases."78
Reading the various views expressed in Congress on the intent of the
legislation at the time of the passage of the law did not help the Court find
that Congress had intended to assume control of weapons connected only with interstate
commerce.79
Hence, the Court refused to allow the application of the act unless the
government was able to demonstrate that the weapon was "in [interstate]
commerce or affecting [interstate] commerce."80
Seemingly,
unless Congress is willing to enter into an area heretofore reserved to the
states and unless there is proof that the firearm which the government sought
to remove from the criminal in the 1968 and other firearms control legislation
was connected with interstate commerce then the states must do their own
controlling of such weapons. The effect of Bass
will very likely be to reduce to some considerable degree the number of federal
prosecutions of the misuse of firearms. It would also seem from Bass as well as from the strong
dissenting opinions in
IV Conclusion
Two
serious challenges exist to the effectiveness of any form of firearms control
program. One has been tested in the courts and the other has not. If either or
both are accepted, then no firearms control legislation will be effective.82
First,
there is the question of prior restraint which would apply primarily to
firearms registration or licensing legislation. In 1931 the Supreme Court held
that the states cannot preclude the publication of a newspaper simply because that
publication had a history of libelous activity.83 In short, prior
censorship was not permitted regardless of the circumstances. Instead of enjoining
an individual from publishing, the most the state can do in the exercise of its
police power is to exercise its power to punish individuals for violations of the
law as these breaches occur.84
If
the principle of prior restraint is applicable to the right to keep and bear
arms, and no court has yet held that it is, then the states could not enjoin the
citizen-soldier from owning firearms as would be allowed under court
definitions. The state could then punish at will violations of the law when and
if a citizen used his firearm illegally, but it could not prevent him from
owning a firearm through some form of prior restraint mechanism.
Because
of the grave dangers which firearms can present, the courts might allow the
states or the federal government to prevent certain classes of people from
bearing or keeping arms within the mitigated doctrine of prior restraint provided
that this decision is made on a rational basis. Such groups could include, for example,
former convicted felons, drug addicts or alcoholics.
The
second challenge to the effectiveness of firearm control programs involves a
citizen's right against self-incrimination. In a series of 196885
decisions the Supreme Court invalidated a federal gambling tax stamp on the
grounds that to identify one's self as a gambler pursuant to federal law might subject
an individual to state prosecution. The Court also indicated that a criminal
might not have to follow certain provisions of the 1968 Federal Gun Control Act
for the same reason. This might mean, as it is interpreted further by the
courts, that only law abiding citizens would have to abide by provisions of
this law and any similar subsequent legislation.
If
this principle is judiciously continued the right against self-incrimination
could be more significant in the protection of the right to keep and bear arms than
the second amendment. Presumably, the same protection could be offered against
state controls since the fifth amendment has been incorporated through the
fourteenth amendment and is thus applicable to the states.
*Associate
Professor of Political Science,
FOOTNOTES
1. This is an estimate
provided by the National Shooting Sports Foundation in 1968. National Shooting
Sports Foundation, True Facts on Firearms Legislation (1968).
2. Fifty-five bills were
introduced in the 94th Congress at the time this manuscript was prepared.
3. E.G., H.R. 2313, 94th Cong., 1st Sess. (1975), which bans the importation,
manufacture or sale of handguns, and which requires citizens to surrender all
privately held handguns for a $25 tax credit; H.R. 1685, 94th Cong., 1st Sess.
(1975), which provides for universal handgun registration and the licensing of
their owners; H.R. 40, 94th Cong., 1st Sess. (1975), which prohibits the
importation, manufacture, sale, purchase, possession or transportation of handguns
except for military and law enforcement officers; and H.R. 2433, 94th Cong.,
1st Sess. (1975), which requires registration of all guns and licensing of their
owners and bans "Saturday Night Specials." Apparently there is some considerable
popular support for additional restraints on the private ownership of firearms.
A Gallop Poll conducted in May of 1975 shows that 67% of the American public
favors a system of national firearms registration, and 41% want to remove all handguns
from private use, Pittsburgh Post-Gazette, June 5, at C-1, col. 1.
4. The principal cases interpreting
the second amendment are:
5. American Bar Foundation,
Firearms and Legislative Regulation (1967).
6.
7.
8.
9.
10.
11. A. Little Research
Report to the
12.
13. See generally Plato,
Laws (Pantheon ed. 1961); Aristotle, Politics (Everyman's Lib. ed. 1935); N.
Machiavelli, The Prince (Mod. Lib. ed. 1945).
14. J. Locke, Two Treatises of
Civil Government (Everyman's Lib. ed. 1947).
15. J. Rousseau, The Social
Contract (Everyman's Lib. ed. 1950).
16. Q. Wright, A Study of
War 305 (2d ed. 1965) [hereinafter cited as Wright]; see also Universal
Declaration of Human Rights, G.A. Res. 265, 3 U.N. GAOR at 71, U.N. Doc. A/810
(1948).
17. Smail, "Art of War," in I Mediaeval
18. C. Hollister, The
Military Organization of Norman England (1965) [hereinafter cited as
Hollister].
19. M. Powicke, Military Obligation
in Medieval England (1962) [hereinafter cited as Powicke].
20. L. Boynton, The Elizabethan
Militia 1558-1638 (1967) [hereinafter cited as Boynton].
21. L. Kennett, French
Armies in the Seven Years' War (1967).
22. See Hollister, supra note 18; and Powicke, supra note 19.
23. The Laws of Ethelbert,
King of
24. C. Stevens, Sources of
the Constitution of the
25. See Boynton, supra note 20.
26. The English Bill of Rights
said that, "the subjects which are protestants may have arms for their
defense suitable to their conditions, and as allowed by law." 9 Statutes
at Large 69 (D.
27. T. Anderson, Jacobson's
Development of American Political Thought (1961).
28. B. Knollenberg, Origins
of the American Revolution 1759-1776 (1960); J. Shy, Toward
29. R. Kirk. The Roots of
American Order (1975). This parallels the thinking of the court in State v.
Kerner, 181 N.C. 574, 107 S.E. 222 (1921). The court stated:
We know that in the past this privilege [the
right to bear arms] was guaranteed for the sacred purpose of enabling the people
to protect themselves against invasion of their liberties. Had not the people in
the Colonies been accustomed to bear arms, and acquired effective skill in
their use, the scene at Lexington in 1775 would have had a different result, and
when "the embattled farmers fired the shot that was heard around the
world,; it would have been fired in vain. Had not the common people, the rank and
file, those who "bore the burden of the battle" during our great
Revolution, been accustomed to the use of arms, the victories for liberty would
not have been won and American independence would have been an impossibility.
If our pioneers had not been
accustomed to the use of arms, the Indians could not have been driven back, and
the French, and later the British, would have obtained possession of the valley
of the
Id.
at 577, 1007 S.E. at 224.
30. All constitutions
adopted in the thirteen original states had some bill of rights or similar
guarantee of the right to keep and bear arms. American Charters, Constitutions and
Organic Laws 1492-1908 (F. Thorpe ed. 1909).
31. The first eight
amendments contain the enumerated rights, including, in the second amendment,
the right to keep and bear arms. It is possible to construct an argument to keep
and bear sporting arms for sporting purposes which would invoke the
unenumerated rights of the ninth amendment, now that this amendment has been
given some meaning.
32. U.S. Const. amend. II.
Madison originally proposed:
The right of 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.
I The Debates and Proceedings
in the Congress of the
33. These points are made,
and indeed, emphasized in both
34. After having promised a
Bill of Rights to some anti-federalist forces who feared centralized power,
35. There is still considerable
debate over the language used in the second amendment. Specifically, the question
is asked whether the framers meant to apply it to the states or to the citizens
as individuals. See generally Forkosch, Who
are the "People" in the Preamble to the Constitution? 19 Case W.
Res. L. Rev. 644 (1968); also see generally The Debates in the Several State
Conventions, on the Adoption of the Federal Constitution (2d ed. J. Elliot
1861) [hereinafter cited as Debates]; and
36. The anti-federalists used
the fear of both a standing army and of a nationalized militia quite
successfully in their ill-fated attempt to block ratification of the
Constitution. W. Riker, Soldiers of the State 16-18 (1957). See also L. Martin, Genuine Information
(1788), as an example of anti-federalist arguments on this point. Levine &
Saxe, supra note 35, conclude that
one way in which the secon amendment can be viewed is "as a declaration that
Federal Government can never fully nationalize all the military forces of this
nation" because the masses of men with their own guns constitute "an
essentially civilian-manned and oriented set of military forces" who can
"inveigh against federal professionalization of the state militias."
Levine & Saxe, supra note 35 at 8.
The Preamble to the Declaration of Independence listed as two grievances
against King George III that "[h]e has kept among us, in times of peace,
standing armies without the consent of our legislatures [and] [h]e has affected
to render the military independent of and superior to the Civil power."
37.
38. The Federalist No. 29
(A. Hamilton).
39.
40. Thomas Paine wrote
"[t]his continent hath at this time the largest body of armed and
disciplined men of any power under Heaven." I Collected Works of Thomas Paine
31 (1937).
41. Presser v.
42.
43. Barron v.
44. Gitlow v.
45. Palko V. Connecticut,
302
46. As noted above, the
Supreme Court showed concern for the states' abridgment of this right in Presser, before Gitlow; the hint of concern is also seen in Robertson v. Baldwin,
165 U.S. 275 (1897), wherein the Court seems to be saying that although
"the right of the people to keep and bear arms is not infringed by laws
prohibiting the carrying of concealed weapons" the Court is concerned
about the right in general.
47. The concept is found in
international law, for example the Hague Convention Number IV. Respecting the Laws
and Customs of War in Land and Annexed Regulations, 36 Stat. 2241 (1907). It is
found in United States Statute law in such laws as the Militia Act of 1862:
Militia Act of 1903 (The Dick Act) and the Volunteer Act of 1914. Each eligible
male citizen in 1792 was required to furnish for his use "a good musket or
firelock" with appropriate equipment by the Militia Act of 1792. See I
Military Laws of the United States 95 (1863). See also Murphy, The American Revolutionary Army and the
Concept of Levee en Masse, Military Affairs, Spring, 1959, at 13.
48. Item II of the Assize of
Arms required that "the whole body of freemen have quilted doublets and a
head piece of iron and a lance [that he must] bear allegiance to the lord king,
Henry...and that he will bear these arms in his service according to his order
and in allegiance to the lord king and his realm." II D. Douglas, English Historical
Documents 416 (1956). Previously, references to the right are found in the Laws
of Ethelbert, King of Kent, I.D. Douglas, English Historical Documents 358
(1956); the Laws of Hlothhere and Eadric, Kings of Kent, Id. at 361; the Laws of Alfred, Id. at 379; and Cnut, whose sixtieth statute states that "[i]f
anyone illegally disarms a man, he is to compensate him..."
49. A great amount of
Parliamentary debate was held over the right to keep and bear arms. II W. Cobbett,
Parliamentary History of
[I]f the people had retained their arms, they would
have been able, by a just and proper resistance to those oppressive measures,
either to have caused the king to respect their rights, or surrender...the government
into other hands...If the subjects had been armed, they could have resisted the
payment of excessive fines, or the infliction of illegal and cruel punishments.
Aymette v. State, 21
50. Wright distinguishes
between true militia and levees en masse in this way:
Both systems may be called a "nation in arms"
but whereas the first has involved a militarization of the entire population, the
second has involved a civilianization of the military services. Both systems must
be differentiated from the standing and permanent army.
Wright, supra note 305.
See also Hague Convention
No. IV, Respecting the Laws and Customs of War on Land and Annexed Regulations,
36 Stat. 2241 (1907). Also cited in 2 W. Malloy, Treaties, Conventions, International
Acts, Protocols and Agreements Between the
51. U.N. Charter art. 51.
52. Universal Declaration of
Human Rights, G.A. Res. 265, 3 U.N. GAOR at 71, U.N. Doc. A/810 (1948).
53.
54. The term
"militia" has been defined in a number of ways, most of which agree
on certain common points. A representative sample would include the following: Adam
Smith defines militia as an obligation enjoyed by "either all the citizens
of the military age, or a certain number of them, to join in some measure the
trade of a soldier to whatever other trade or profession they may happen to carry
on. If this is found to be the policy of a nation, its military force is then
said to consist of a militia." A. Smith, An Inquiry Into the Causes and
Consequences of the Wealth of Nations 660 (1937). Sir James A. H. Murray
defined it as "a military force, especially the body of soldiers in the
service of the sovereign of the state [who are] the whole body of men amenable
to military service, without enlistment, whether drilled or not...a citizen
army' as distinguished from a body of mercenaries or professional
soldiers." 4 J.
55.
56.
57.
58. Commonwealth v. Murphy,
166
59. Presser v.
60.
61. Levine & Saxe, supra note 35, at 7 conclude that:
[E]ven if the original draft intended that the
"people" were to fill the breach created by the nullification of any
State right to independently arm and organize the militia, the State would
still have the right to regulate the keeping and bearing of arms.ONe cannot
read the second amendment as a guarantee of individual rights, at least insofar
as state citizenship is concerned. "The people" must be treated as a
"collectivity" in this arena. However, this does not preclude viewing
"the people" as "individuals" in the federal arena.
62. Hlothhere and Eadric of Kent
in the seventh century noted limitations. See F. Attenborough, The Laws of the Earliest
English Kings 21 (1922). Alfred the Great proclaimed laws against drawing
weapons.
63. Memorandum from Fred B. Smith,
Acting General Counsel, to the Secretary of the Treasury Department, on the
Constitutional Basis for Federal Firearms Control Legislation, May 17, 1965 at
15, which stated, in part, that the Federal Firearms Act could be strengthened
"within the powerofCongresstoregulateinterstate commerce...and...subject
to no limitation prescribed in the Constitution."
64. Federal Gun Control Act
of 1968, ch. 368, tit. I, 82 stat. 1213 (codified in scattered sections of 18, 26
U.S.C.).
65. National Firearms Act,
26 U.S.C. Sects. 5801-5862 (1934).
66.
67. Federal Firearms Act, 18
U.S.C. Sects. 921-928 (1938).
68.
69.
70. Federal Gun Control Act
of 1968, ch. 368, tit. I, 82 stat. 1213 (codified in scattered sections of 18, 26
U.S.C.).
71. Adams v. Williams, 417
72.
73.
74.
75.
76.
77. 42 U.S.C. Sect. 3701
(1970).
78.
79. See Universal Camera
Corp. v. N.L.R.B., 340
80.
The Critical textual question is whether the
statutory phrase "in commerce or affecting commerce" applies to "possess"
and "receives" as well as "transports." If it does, then the
Government must prove as an essential element of the offense that a possession,
receipt or transportation was "in commerce or affecting commerce? - a
burden not undertaken in this prosecution for possession.
81. The dissenting opinion
of Justice Blackmun in Bass quoting from
the congressional Record shows a potential willingness to support such federal
pre-emptory legislation:
All of these murders [the
killer of civil rights worker Medgar Evers and others] had shown violent tendencies
before they committed the crime for which they are most infamous. They should
not have been permitted to possess a gun. Yet, there is no Federal law which would
deny possession to these undesirables.
It has been said that
Congress lacks the power to outlaw mere
possession of weapons.
[P]ossession of a deadly weapon by the wrong people can be controlled by Congress,
without regard to where the police power resides under the Constitution.
Without question, the
Federal Government does have power to control possession of weapons where such possession could become a threat to interstate commerce.
State gun control laws where
they exist have proven inadequate to bar possession
of firearms from those most likely to use them for unlawful purposes.
82. It is not the argument
here that the right to keep or to bear arms is unlimited. The right can be reasonably
mitigated. In State v. Johnson, 16 S.C. 187 (1881), the court supported the
power of the legislature to prohibit absolutely the carrying of all deadly
weapons. The same idea is to be found in State v. Costen, 17 del. [1
83. Near v.
84.
85. See Grosso v.
In Marchetti, the Court
reversed