STANDING ARMIES AND ARMED
CITIZENS:
AN HISTORICAL ANALYSIS OF
THE SECOND AMENDMENT
by Roy G. Weatherup
+------------------------------------------+
¦Reprinted
by permission of:¦ ¦Hastings
Constitutional Law Quarterly¦ ¦Fall,
1975, Volume 2, No. 4, pp. 961-1001.¦
+------------------------------------------+
I. Introduction: Guns and
the Constitution
As
a result of a steadily rising crime rate in recent years, a sharp public debate
over the merits of federal firearms regulation has developed. "Crime in the streets" has become a
national preoccupation; politicians cry out for "law and order;" and
the handgun has become a target of attention.
The number of robberies jumped from 138,000 in 1965 to 376,000 in 1972,
while murders committed by guns shot up from 5,015 to 10,379 in the same
period, and the proportion of cases in which the murder weapon was a firearm
rose from 57.2 percent to 65.6 percent.1 The recent attempt on the life of President
Ford in Sacramento by an erstwhile member of the "Manson Gang" serves
to heighten the terror of a nation already stunned by the assassinations of
John F. Kennedy, Martin Luther King and Robert
F. Kennedy, and the maiming of George Wallace. Many people assert that these tragedies could
have been prevented by keeping the murder weapons out of the hands that used
them. Others vehemently dispute this
claim.
The
free flow of firearms across state lines has undermined the traditional view of
crime and gun control as local problems.
In
The
great majority of the American people now support registration of both handguns
and rifles. When the Gallup Poll asked
the question: "Do you favor or oppose registration of all firearms?"
in a recent survey, more than two-thirds (67 percent) favored the concept,
while 27 percent opposed it, and 6 percent had no opinion. Even gunowners
endorsed registration by a margin of 55 percent to 39 percent with 6 percent
undecided.3 Yet, although the intensity of belief is
undoubtedly far stronger in the minority than in the majority Congress has
remained dormant.4 The zeal of those individuals dedicated to
the preservation of the "right to keep and bear arms" in its present
form cannot be doubted.
American
history has often seen social and political problems transformed into
constitutional issues.5 The gun control issue is no exception to this
phenomenon, and particular attention has been focused on the Second Amendment
to the United States Constitution, which provides: "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 infringes."
Proponents
of gun control seize the phrase "a well regulated Militia" and find
in it the sole purpose of the constitutional guarantee. They therefore assert that "the right of
the people to keep and bear Arms" is a collective right which protects
only members of the organized militia, e.g., the National Guard, and only in
the performance of their duties. It is
their belief that no one else can claim a personal right to keep and bear arms
for any purpose whatsoever, criminal or otherwise.
Opponents
maintain that having guns is a constitutionally protected individual right,
similar to other guarantees of the Bill of Rights. Some hold this right to be absolute, while
others would allow reasonable restrictions, perhaps even licensing and
registration. Still others would limit
the protection of the Second Amendment to individuals capable of military
service and to weapons useful for military purposes. The essential characteristic of the
"individualist" interpretation, as opposed to the
"collectivist" view, is that the Second Amendment precludes, to some
extent at least, congressional interference in the private use of firearms for
lawful purposes such as target shooting, hunting and self-defense.
It
is one of the ironies of contemporary politics that the many of the most vocal
supports of "law and order" are persistent critics of federal
firearms regulation. "Guns don't
kill people; people kill people" is their philosophy. Firearms in private hands are viewed as a
means of protecting an individual's life and property, as well as a factor in
helping to preserve the Republic against foreign and domestic enemies. Whereas strict constructionism
is often the preferred doctrine in interpreting the constitutional rights of
criminals, such a narrow view of the Second Amendment is unacceptable. Far from being narrowly construed, the Second
Amendment is held out to be a bulwark of human freedom and dignity as well as a
means of safeguarding the rights of the individual against encroachment by the
federal government. It thus becomes a
weapon in the arsenal of argument against gun control, and each new proposal is
said to infringe upon the rights of the people to keep and bear arms.
The
clash between "collectivist" and "individualist"
interpretations of the Second Amendment has not been definitely resolved. Even members of Congress believe that their
power to regulate firearms is limited by the existence of an individual right
to have, to hold, and to use them.
Senator Hugh Scott, Republican of Pennsylvania, writes in Guns &
Ammo magazine: "As my record shows, I have always defended the right-to-bear-arms
provision of the Second Amendment. I have
a gun in my own home and I certainly intend to keep it."6
There
has been very little case law construing the Second Amendment, perhaps because
there has been very little federal legislation on the subject of firearms. This may change, and it may become necessary
for the Supreme Court to rule upon constitutional challenges to federal
statutes based on the Second Amendment.
Even before this occurs, it would be helpful to dispel the uncertainties
that exist in Congress about the extent of federal legislative power.
In
order to determine accurately the intended meaning of the Second Amendment, it
is necessary to delve into history. It
is necessary to consider the very nature of a constitutional guarantee -
whether it is an inherent, fundamental right, derived from abstract human
nature and natural law or, alternatively, a restriction on governmental power
imposed after experience with abuse of power.
Historically,
the right to keep and bear arms has been closely intertwined with questions of
political sovereignty, the right of revolution, civil and military power,
military organization, crime and personal security. The Second Amendment was written neither by
accident nor without purpose; it was the product of centuries of Anglo-American
legal and political experience. This
development will be examined in order to determine whether the
"collectivist" or "individualist" construction of the
Second Amendment is correct.7
II. The Evolution of British Military Power
Victorious
at the Battle of Hastings in 1066, William the Conqueror was able to assert
personal ownership over all the
Feudal
society was organized along military lines in 1181. King Henry II, great grandson of the
Conqueror, issued the Assize of Arms, which formalized the military duties of
subjects. The first three articles of
the decree specify what armament each level of society to maintain - ranging
from the holder of a knight's fee, who must equip himself with a hauberk, a
helmet, a shield and a lance, down to the poorest freeman armed only with an
iron headpiece and a lance. The
philosophy of the law is expressed in the fourth article, which is as follows:
Moreover, let each and everyone of them
swear that before the feast of St. Hilary he will possess these arms and will
bear allegiance to the lord king, Henry, namely the son of the Empress Maud,
and that he will bear these arms in his service according to his order and in
allegiance to the lord king and his realm.
And let none of those who hold these arms sell them or pledge them or
offer them, or in any other way alienate them; neither let a lord in any way
deprive his men of them either by forfeiture or gift, or as surety or in any
other manner.8
The
remainder of the statute prescribes rules and procedures governing its
administration. The Assize of Arms
marked the beginning of the militia system; its clear purpose was to strengthen
and maintain the King's authority.
In
1215, the rebellious Norman barons forced King John to sign the Magna Carta, a document justly regarded as the foundation of
Anglo-American freedom. The Great
Charter consists of sixty-three articles which set forth in great detail
certain restrictions on the King's prerogative.
Its introductory article concludes, "Ye have also granted to all
the free men of Our kingdom, for Us and Our heirs forever, all the liberties
underwritten, to have and to hold to them and their heirs of Us and Our
heirs."9 Implicit in this statement is the fact that
sovereignty is deemed to be vested in the office of kingship, and that the King
is restricting his powers in favor of his subjects. Roscoe Pound makes this comment on the Magna Carta:
The ground plan to which the common-law
polity has built ever since was given by the Great Charter. It was not merely the first attempt to put in
legal terms what became the leading ideas of constitutional government. It put them in the form of limitations on the
exercise of authority, not of concessions to free human action from
authority. It put them as legal
propositions, so that they could and did come to be a part of the ordinary law
of the land invoked like any other legal precepts in the ordinary course of
orderly litigation. Moreover, it did not
put them abstractly. In characteristic
English fashion it put them concretely in the form of a body of specific
provisions for present ills, not a body of general declarations in universal
terms. Herein, perhaps, is the secret of
its enduring vitality.10
Centuries
were to pass before an English sovereign would again proclaim the doctrine of
unrestricted royal power which William the Conqueror had established by force
of arms, and which King John had lost in the same manner.
Even
though medieval
The
fifteenth century dynastic struggle known as the War of Roses virtually
destroyed the feudal system, and prepared the way for a new consolidation of
royal power beginning with the coronation of Henry Tudor as King Henry VII in
1485. The Tudors maintained a large
degree of national unity. Their task was
made easier by practical applications of gunpowder. The royal cannon made resistance by the
nobility futile.
Perhaps
because of the weakness of their hereditary claims, the Tudor monarchs
attempted to control and manipulate Parliament, rather than assert the royal
prerogative in defiance of Parliament.
It was even admitted that Parliament could regulate the succession to
the throne, acting in conjunction with the reigning monarch, of course. In the reign of
The
long war with the Hapsburg Empire that began at the time of the Spanish Armada
contributed to an upsurge of national sentiment. Faith in the English militia was vindicated as
free men had held their own against the massive, professional standing armies
of the Spanish King. Englishmen came to
believe the militia was the best security for their country and their
liberties.
At
the death of Elizabeth I in 1603, King James VI of
Although
a model constitutional monarch in some respects, in the realm of political
theory, James I challenged the sensibilities of the nation. He boldly proclaimed the divine right theory
of government - that kings hold their thrones by the will of
God alone, and not by the will of peoples or parliaments. Typical of his sentiment are these excerpts
from his speech to Parliament on March 21, 1610:
The State of MONARCHIE is the spremest thing upon
earth: For Kings ar not only GODS Lieutenants upon earth, and sit upon GODS throne, but even by GOD
himselfe they are called Gods...In the Scriptures
Kings are called Gods, and so their power after a certaine
relation compared to the Divine Power.
The
King concluded that "to dispute what GOD may doe, is blasphemie,"
and thus it is "sedition in Subjects, to dispute what a King may do in the
height of his power."13
Here was a King not restricted by any human law.
Neither
the legal profession nor Parliament was willing to accept much a boundless
royal prerogative. Having grown up in
the civil law tradition of
That the Liberties, Franchises, Privileges
and Jurisdictions of Parliament, are the ancient and undoubted birthright and
inheritance of the subjects of England; and that the arduous and urgent affairs
concerning the King, State and defence of the realm,
and of the Church of England, and the making and maintenance of laws, and
redress of michiefs and grievances, which daily
happen within this realm are proper subjects and matter of counsel and debate
in Parliament: and that in the handling and proceeding of those businesses
every member of the House hath, and of right ought to have, Freedom of Speech,
to propound, treat, reason and bring to conclusion the same...15
The
King's response was to walk into the House of Commons and to tear from the
Journal the page containing these words.
The
leading legal theorist of the time was Sir Edward Coke, whose writings and
leadership were to enhance the prestige of the common law, and bring it into
alliance with Parliament against the monarchy.
In response to an inquiry from James I, Coke and his colleagues
declared:
That the King by his proclamation cannot
create any offence which was not an offence before, for then he may alter the
law of the land by his proclamation in a high point; for if he may create an
offence where none is, upon that ensues fine and imprisonment...; That the King
hath no prerogative, but that which the law of the land allows him...16
The
common law courts asserted jurisdiction to inquire into the legality of acts of
servants of the Crown, and thus began the doctrine of the rule of law.
In
response to the wars waged by James I's improvident
heir, Charles I, Parliament enacted the Petition of Right in 1628, inspired and
drafted largely by Coke. The petition
was an assertion of the power of Parliament and the common law, and contained a
long list of grievances. The abuses of
the King's military power - billeting, martial law, imprisonment without trial,
and forced loans - were particularly resented. Charles I had no choice but to
sign the petition, since he needed revenues from Parliament, but he secretly consulted
his judges who assured him that his signature would not be binding. Soon afterward, in 1629, the King dissolved
Parliament and began the long period of personal rule which was to end in the
Great Rebellion.
Charles
I was short of money, and revived an ancient tax; his judges upheld the
legality of this action in the famous Ship Money case of 1635. The King also wished to strengthen the Church
of England, the mainstay of the monarchy.
The ecclesiastical canons of 1640 emphatically affirmed the theory of
Divine Right of Kings and, in addition, promulgated the doctrine nonresistance:
For subjects to bear arms against their kings,
offensive or defensive, upon any pretence whatsoever, is at least to resist the
powers which are ordained of God; and though they do not invade but only
resist,
This
doctrine of "nonresistance" was to have an important role of religion
and politics in both
Faced
with a Scottish rebellion, Charles I was forced to summon the English
Parliament in 1640 in order to obtain the resources necessary to put down the
insurrection. After eleven years of
personal royal government, Parliament trusted neither the King nor his leading
minister, the Earl of Strafford.
Parliament demanded a wide array of religious and political concessions,
including the removal of Strafford as governor of
Charles
I was now desperate.
Still
unsatisfied, Parliament presented its Nineteen Propositions as an ultimatum to
the King in 1642. The Propositions, if
acceded to, would have established a very limited monarchy with the King
surrendering the power of the sword and Parliament obtaining complete control
over the militia. Instead, the King
raised the royal standard at
Oliver
Cromwell and the Puritans came to power by force of arms and the creation of a
disciplined standing army. Cromwell soon quarreled with Parliament and
assumed the role of a military dictator. The soldiers supported their leader because
Parliament proposed to disband much of the army thus depriving them of their
livelihood, and also because they feared that Parliament might once again come
under the control of the Anglicans, who would revive persecution of the Puritan
sects.
It
was soon proposed that Cromwell be made king, but only because that office
would have definite constitutional restrictions. Finally Cromwell assumed the title of Lord
Protector in 1653, under a written constitution that gave him virtually royal
power. Although Cromwell's government
brought domestic peace and ruled efficiently, it did not gain in popularity. The Lord Protector's government was created
and maintained by bayonets, and the people came to hate it. The end of the protectorate and its legacy
have been described by historian Eric Sheppard as follows:
The great soldier's death in 1658, while the
army he had made was still fighting victoriously in flanders,
marked the beginning of the end of that army's rules; its leaders soon had no
choice but to accept the inevitable, and in May 1660 the red coats of the New
Model were arrayed on Blackheath to do honor to the
monarch whom nine years before it had hunted into exile. A few months later, setting an example which
has since been followed by all the great armies of England, it...laid down its
arms and passed silently and peacefully into the pursuits of peace, leaving
behind it, in the minds of governing class and the people, besides a deservedly
high military reputation, a legacy of hatred and distrust of all standing
armies which has endured to our own day.18
The
mood of
Once
again reliance for the country's security was placed in the militia system,
which had fallen into disuse after two decades of professional armies, civil
wars and military government. Statutes
were passed in 1661 and 1662 declaring that the King had the sole right of
command and disposition of the militia, and providing for its organization.20 Winston Churchill makes this comment on the Cavalier
Parliament, which had restored the monarchy:
It rendered all honour
to the King. It had no intention of
being governed by him. The many landed
gentry who had been impoverished in the royal cause were not blind monarchists. They did not mean to part with any of the
Parliamentary rights which had been gained in the struggle. They were ready to make provision for the defence of the
country by means of mililtia; but the militia must be controlled by the
Lord-Lieutenants of the counties. They
vehemently asserted the supremacy of the Crown over the armed forces; but they
took care that the only troops in the country should be under the local control
of their own class. Thus not only the
King but Parliament was without any army.
The repository of force had now become the county families and gentry.21
The
revival of the militia did not mean that the King was forbidden to raise and
maintain armies. He had no means of
doing so, however, because Parliament held the purse strings, and the
quartering of soldiers had been condemned since the days of the Petition of
Right.
Foreign
wars made the development of a standing army inevitable, and it reached 16,000
men by the end of the reign of Charles II.
It was done with the consent of Parliament, and English country
gentlemen were secure in their control of the domestic armed power - the militia. In addition, guns were taken out of the hands
of the common people. Among the
conditions of a 1670 statute was one that no person, other than heirs of the
nobility, could have a gun unless he owned land with a yearly value of L100.22 The protection of the people's liberties was
thus committed entirely to Parliament and other legal institutions. The possibility of a citizen army, such as
that created by Oliver Cromwell, was precluded.
In
the reign of Charles II, religious controversy dominated politics. The Cavalier Parliament wished to maintain
the established Anglican Church and persecute dissenters, Catholic and Puritan
alike. Parliament was also alarmed by
the prospect that the King's Catholic brother, the Duke of York, would succeed
to the throne. A parliamentary attempt
to exclude the Duke failed, but in 1673 and 1678, two Test Acts were passed,
which barred Catholics from all civil and military offices and form both Houses
of Parliament.23
In
1685, the Catholic Duke of
At
the same time a rebellion, led by the Duke of Monmouth, broke out in the
western counties. The King successfully
crushed the uprising, but in the process succeeded in doubling his standing
army to 30,000 men, granting commissions to catholic officers, and bringing in
recruits from Catholic Ireland. In
addition he quartered his new army in private homes. These arbitrary actions were in direct
violation of previous parliamentary proclamations.
James
II then asked Parliament to repeal the Test Acts and the Habeas Corpus Act,
which Parliament refused to do. The King
also asked the representatives of the nation to abandon their reliance on the
militia, in favor of standing armies:
My Lords and Gentlemen,
After the storm that seemed to be coming upon
us when we parted last, I am glad to meet you all again in so great Peace and
Quietness. God Almighty be praised, by
those Blessing that Rebellion was suppressed: But when we reflect, what an
inconsiderable Number of Men began it, and how long they carried [it] on without
any Opposition, I hope everybody will be convinced, that the Militia, which
hath hitherto been so much depended on, is not sufficient for such Occasions;
and that there is nothing but a good Force of well disciplined Troops in
constant Pay, that can defend us from such, as, either at Home or Abroad, are
disposed to disturb us...24
John
Dryden, the poet, shared the King's attitude toward the militia when he wrote
these timeless words:
The country rings around with loud alarms,
And raw in fields the rude militia swarms;
Mouths without hands; maintained at vast
expense,
In peace a charge, in war a weak defence;
Stout once a month they march, a blustering
band,
And ever, but in times of need, at hand.
This was the morn when, issuing on the guard,
Drawn up in rank and file they stood prepared
Of seeming arms to make a short essay,
Then hasten to be drunk, the business of the
day.25
Parliament
adjourned in 1686 without resolving any of the basic issues. The King kept his army and pursued his
policies through extraparliamentary means.
To
get rid of the Test Act, and to revive the royal prerogative at the same time,
the King arranged a collusive lawsuit. A
coachman in the service of a Roman Catholic officer brought suit under the Test
Act to recover the statutory reward for discovering violators, and the officer
pleaded a royal dispensation in defense.
The King's judges in Godden v.
Hales26 upheld the validity of the dispensation and gave
judgment for the defendant. Lord Chief
Justice Herbert stated:
We are satisfied in our judgments before, and
having the concurrence of eleven out of twelve, we think we may very well
declare an opinion of the court to be that the King may dispense in this case;
and the judges go upon these grounds:
1.
That the kings of
2.
That the laws of
3.
That therefore 'tis an inseparable prerogative in the kings of
4.
That of those reasons and those necessities the king himself is sole
judge: And then, which is consequent upon all,
5.
That this is not a trust invested in or granted to the king by the
people, but the ancient remains of the sovereign power and prerogative of the
kings of
Thus
armed with the law, the King proceeded to dispense with statutes as he saw
fit. He replaced Protestants and
Catholics at high posts in government, particularly at important military
garrisons. The army was further enlarged
and 13,000 men were stationed at Hounslow Heath, just outside
With
the birth of a son, who would take precedence over the king's Protestant
daughters in the succession, fear led to revolution. Leading subjects sent a secret invitation to
William of Orange to come to
without
being able to put up any resistance himself.
William
and Mary were offered the Crown jointly after they accepted the Declaration of
Rights on February 13, 1689. The
Declaration was later enacted in the form of a statute, known as the Bill of
Rights.28 The document is divided into two main parts:
(1)a list of allegedly illegal actions of James II, and (2) a declaration of
the "ancient rights and liberties" of the realm.
The
sections of the first part of the statute that are relevant to the right to
bear arms are the allegations that James II:
did
endeavor to subvert and extirpate the
Protestant Religion and the Laws and Liberties of this Kingdom...
5.
By raising and keeping a Standing army within this Kingdom in Time of
Peace without Consent of Parliament and quartering Soldiers contrary to Law.
6.
By causing several good Subjects, being Protestants, to be disarmed at
the same Time when Papists were both armed and employed contrary to Law.29
It
should be pointed out that the King did not disarm Protestants in any literal
sense; the reference is to his desire to abandon the militia in favor of a
standing army and his replacement of Protestants by Catholics at important
military posts.
The
parallel sections of the declaration of rights part of the statute are:
5.
That the raising or keeping a Standing Army within the Kingdom In Time
of Peace unless it be with the Consent of Parliament is against Law.
6.
That the subjects which are Protestants may have arms for their Defence suitable to their Conditions, and as allowed by
Law.30
The
purpose, and meaning of, the right to have arms recognized by these provisions
is clear from their historical context.
Protestant members of the militia might keep and bear arms in accordance
with their militia duties for the defense of the realm. The right was recognized as a restriction on
any future monarch who might wish to emulate James II and abandon the militia
system in favor of a standing army without the consent of Parliament. There was obviously no recognition of any
personal right to bear arms on the part of subjects generally since existing
law forbade ownership of firearms by anyone except heirs of the nobility and
prosperous landowners.
In
summary, the English Bill of Rights represents the culmination of the centuries
old problem of the relationship of sovereignty and armed force. The king could have an army, but only with
the express consent of Parliament. The
king could not, however, dismantle and disarm the militia. There was no individual right to bear arms:
the rights of subjects could be protected only by the political process and the
fundamental laws of the land.
III. England and Her Colonies
The
revolutionary settlement that followed the accession of William and Mary gave
the English people permanent security.
When
William and Mary, and later, Queen Anne, all died without heirs, the Crown
passed to the distantly-related House of Hanover in
The
history of the English colonies in
The
foundation of government in the colonies was the charter granted by the
king. An important feature of a charter
was the provision securing for the inhabitants of the colony the rights of
Englishmen. For example, the 1606 Charter of Virginia contains this passage:
Also we do...DECLARE ...that all and every
the Persons being our Subjects, which shall dwell and inhabit within every or
any of the said several Colonies and Plantations, and every of their children,
which shall happen to be born within any of the Limits and Precincts of the
said several Colonies and Plantations, shall HAVE and enjoy all Liberties,
Franchises, and immunities, within any of our other Dominions, to all Intents
and purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said
Dominions.32
During
the seventeenth century and the first half of the eighteenth century, the North
American colonies were essentially self-governing republics following the
political and legal model of
The Common Law of England is the Common Law
of the Plantations, and all statutes in affirmance of
the Common Law, passed in England antecedent to the settlement of a colony, are
in force in the colony, unless there is some private Act to the contrary;
though no statutes, made since those settlements, are there in force unless the
colonies are particularly mentioned. Let
an Englishman go where he will, he carries as much of law and
liberty
with him, as the nature of things will bear.33
The
legal relationship of
In
his efforts to tax and govern the colonies, George III acted in two capacities:
as King, armed with the prerogatives of his office, and as the agent of the
British Parliament which at that time was under his personal control. The colonists acknowledged the authority of
the King, but only in accordance with their charters and with the same
restrictions that limited his power in
Colonial
resistance forced the British government to abandon the Stamp Tax, but
Parliament passed the Declaratory Act in 1766 entitled "An Act for the
Better securing the Dependency of his majesty's dominions in
Whereas several of the Houses of
Representatives in his Majesty's Colonies and Plantations in America, have of late, against Law,
claimed to themselves or to the General Assemblies of the same, the sole and
exclusive Right of imposing Duties and Taxes upon his Majesty's Subjects in the
said Colonies and Plantations; and have, in pursuance of such Claim, passed
certain Votes, Resolutions and Orders, derogatory to the Legislative Authority
of Parliament, and inconsistent with the Dependency of the said colonies and Plantations upon the Crown
of Great Britain; and that the
King's Majesty, by and with the Advice and Consent of the Lords Spiritual and
Temporal, and Commons of Great Britain
in Parliament assembled, had, hath, and of Right ought to have, full Power and
Authority to make Laws and Statutes of
sufficient Force and Validity to bind the Colonies and People of America, Subjects of the Crown of Great Britain, in all Cases whatsoever.34
The
colonists were free-born Englishmen and they were not willing to accept
inferior status. They could not admit
the authority of Crown and Parliament to bind them "in all cases
whatsoever." They fell back on the
doctrine of fundamental law as expressed in 1764 by James Otis:
'Tis hoped it will
not be considered as a new doctrine, that even the authority of the Parliament
of Great-Britain is circumscribed by
certain bounds, which if exceeded their acts become those of meer power without right, and consequently void. The judges of
The
concept of fundamental law was developed and grounded squarely on the English
legal tradition. In 1772, Samuel Adams
wrote in response to another writer in the Gazette:
Chromus talks of Magna Charta as though it were of no
greater consequence that an act of Parliament for the establishment of a
corporation of button-makers. Whatever
low ideas he may entertain of the Great
Charter...it is affirm'd by Lord Coke, to be
declaratory of the principal grounds of the fundamental laws and liberties of
This
statement of fundamental law later influenced the intellectual foundation of
judicial review in the
In
order to sustain his claim of full and unrestricted sovereignty, George III
sent large standing armies to the colonies.
The
American colonists, who had always relied on their own militia, hated and feared
standing armies even more than their English brethren. In quartering his redcoats in private homes,
suspending charters and laws, and eventually imposing martial law, George III
was doing in
The
Fairfax County Resolutions, drawn up under the leadership of George Washington
and passed on July 18, 1774, reflect the colonial attitude in the year prior to
the outbreak of war. Of particular
interest is the following paragraph:
Resolved, That it is our greatest
wish and inclination, as well as interest, to continue our connection with, and
dependence upon, the British
Government; but though we are its subjects, we will use every means which
Heaven hath given us to prevent our becoming its slaves.37
In
October of the same year, the First Continental Congress assembled and stated
the position of the colonies in these resolutions:
Resolved,...1.
That they are entitled to life, liberty, & property, and they have never
ceded to any sovereign power whatever, a right to dispose of either without
their consent.
Resolved,...2.
That our ancestors, who first settled these colonies, were at the time of their
emigration from the mother country, entitled to all the rights, liberties, and
immunities of free and natural-born subjects, within the realm of
Resolved,...3.
That by such emigration they by no means forfeited, surrendered, or lost any of
those rights, but that they were, and their descendants now are, entitled to
the exercise and enjoyment of all such of them, as their local and other
circumstances enable them to exercise and enjoy.
Resolved,...4.
That the foundation of English liberty, and of all free government, is a right
in the people to participate in their legislative council: and as the English
colonists are not represented, and from their local and other circumstances,
cannot properly be represented in the British parliament, they are entitled to
a free and exclusive power of legislation in their several provincial
legislatures, where their right of representation can alone be preserved, in
all cases of taxation and internal polity, subject only to the negative of their
sovereign, in such manner as has been heretofore used and accustomed...38
After
stating these general principles, the Congress listed specific rights that had
been violated by George III, including the following:
Resolved,...9. That the keeping a Standing army in these
colonies, in times of peace, without the consent of the legislature of that
colony, in which such army is kept, is again law.39
The
colonists were asserting, in effect, that the restrictions on royal power that
had been won by Parliament in its long struggle against the Stuart kings were
binding against the sovereign, in favor of the colonial legislatures as well as
Parliament. In order to make that claim
good, the colonists were forced to take up arms.
IV. Popular Sovereignty and the New Nation
which
continued to serve for many years as state constitutions.
In
other states, written constitutions were drawn up. They generally had these features: 1) an assertion
that political power derives from the people; 2) provision for the organization
of the government with a three-fold separation of powers; 3) a powerful
legislature with authority to pass all laws not forbidden by the Constitution;
and 4) a specific bill of rights restricting governmental power in the same way
that the English Bill of Rights restricted the King. It is important to emphasize that the concept
of enumerated powers had not yet been developed, and that rights were, as always before, conceived to be in the nature
of restrictions on power, not as individual freedoms.40
The
Declaration of Independence substituted the sovereignty of the people for that
of the King, and appealed to the
"Laws of Nature and of Nature's God," but it did not proclaim
a social or legal revolution. It listed
the colonists' grievances, including the presence of standing armies,
subordination of civil to military power, use of foreign mercenary soldiers,
quartering of troops, and the use of the royal prerogative to suspend laws and
charters. All of these legal actions
resulted from reliance on standing armies in place of the militia.
Although
That the inhabitants of Maryland are
entitled to the common law of England, and the trial by jury according to the
course of that law, and to the benefit of such of the English statutes as
existed on the fourth day of July, seventeen hundred and seventy six, and
which, by experience, have been found applicable to their local and other
circumstances, and have been introduced, used and
practiced
by the courts of law or equity,...41
The
War for
To place any dependence upon Militia, is,
assuredly, resting upon a broken staff.
Men just dragged from the tender Scenes of domestic life; unaccustomed
to the din of Arms; totally unacquainted with every kind of military skill,
which being followed by a want of confidence in themselves, when opposed to
Troops regularly train'd, disciplined, and appointed,
superior in knowledge and superior in Arms, makes them timid, and ready to fly
from their own shadows...
The Jealousies of a standing Army, and the
Evils to be apprehended from one, are remote' and, in my judgment, situated and
circumstanced as we are, not at all to be dreaded; but the consequence of
wanting one, according to my ideas, formed from the present view of things, is
certain, and inevitable Ruin; for if I was called upon to declare upon Oath,
whether the Militia have been most serviceable or hurtful upon the whole; I
should subscribe to the latter.42
To
maintain the supremacy of civil power over that of the military Article II of
the Articles of Confederation provided that each state would retain "its
sovereignty, freedom, and independence."43 A provision
that "every state shall always keep
up a well regulated and disciplined militia, sufficiently armed and accoutred" was included in Article VI.44 In contrast,
the military powers of the United States
rested in Congress were strictly limited; Congress could not maintain
standing armies without the consent of
nine of the thirteen states.
The
government of the
V. Forging a More Perfect
When
the War for
The
danger to civil authority from the military was not entirely imaginary. In the summer of 1783 there was a direct
attempt to coerce the Confederation into paying what had been promised to the
army. Originally intended as a peaceful
protest march on the capitol in
Following
the abortive demonstrations in
The
other important military even that precipitated demands for a stronger national
government was Shays' Rebellion in
Thomas
Jefferson, in contrast, was not alarmed by the apparent dangers of anarchy, and
he criticized the clamor of the Federalists.
Just after receiving a copy of the proposed Constitution, he wrote from
...We
have had 13 states independent 11 years.
There has been one rebellion.
That comes to one rebellion in a century & a half for each
state. What country before ever existed
a century & a half without rebellion?
& what country can preserve its liberties if their rulers are not
warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is set them right as to facts,
pardon & pacify them. What signify a
few lives lost in a century or two? The
tree of liberty must be refreshed from time to time with the blood of patriots
& tyrants. It is natural
manure. Our Convention has been too much
impressed by the insurrection of
Whatever
the merits of
To raise and support Armies, but no
Appropriation of Money to that use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and
Regulation of the land and naval Forces;
To provide for calling forth the Militia to
execute the Laws of the
To provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of them as may be
employed in the Service of the United State, reserving to the States
respectively, the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress:
The
spirited debate over these provisions in the Federal Convention reflects the
purposes and fears of the framers of the Constitution.
There
was universal distrust of standing armies.
For example, in June of 1787,
...A standing military force, with an
overgrown Executive will not long be safe companions to liberty. The means of defence
agst. foreign danger, have been always the instruments of tyranny at home.
Among the Romans it was a standing maxim to excite a war, whenever a
revolt was apprehended. Throughout all
The
defense "which could not be used for the purpose of oppression" was
the militia, which was still revered on both sides of the
Yet,
despite the preference for the militia, it was generally agreed that Congress
must have authority to raise and support standing armies in order to protect
frontier settlements, the national government, and the nation when threatened
by foreign powers. However, a few
members were still fearful. Elbridge
Gerry and Luther Martin, both of who later opposed the Constitution, moved that
a definite limit - two or three thousand
men be placed on the size of the national standing army. Voting by states, as always, the Convention
unanimously rejected the motion. The
judgment of Congress and the two year appropriation limitation were thought to
be sufficient safeguards.48
The
proper extent of federal authority over the militia was much more heatedly
debated. The subject was introduced by
George Mason, author of the Virginia Bill of Rights, who later opposed the
Constitution, but who now maintained that uniformity of organization, training,
and weaponry was essential to make the state militias effective. His hope was that the need for a standing
army would be minimized; perhaps only a few garrisons would be required. Mason's opinions were shared by Madison, who
gave this analysis:
The primary object is to secure an
effectual discipline of the Militia.
This will no more be done if left to the states separately than the
requisitions have been hitherto paid by them.
The states neglect their militia now, and the more they are consolidated
into one nation, the less each will rely on its own interior provisions for its
safety, and the less prepare its militia for that purpose; in like manner as
the militia of a state would have been independently charged with the care of
its militia. The discipline of the
militia is evidently a national concern,
and ought to be provided for in the national
Constitution.49
Despite
such explanations, there were still opponents to the militia clauses. Gerry, for example, declared:
This power in the
Later,
as the Convention moved toward resolution of the issue, Gerry marshaled his
final arguments. One can sense his
feeling of outrage, as he solemnly warned of the dangers of centralized
military power: "Let us at once destroy the state governments, have an
executive for life or hereditary, and a proper Senate; and then there would be
some consistency in giving full powers to the general government..."51 But as the
states are not to be abolished, he wondered at the attempts that were
made to give powers inconsistent with their existence. He warned the Convention against pushing the
experiment too far. Some people will
support a plan of vigorous government at every risk. Others, of a more democratic cast, will
oppose it with equal determination; and a civil war may be produced by the
conflict.
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 liberty is from large standing
armies, it is best to prevent them by an effectual provision for a good
militia.52
The
last discussion of the militia clauses took place on September 14, 1787, just
before the Convention finished its work.
Mason moved to add a preface to the clause that allowed federal
regulation of the militia, in order to define its purpose. His proposed addition was "that the
liberties of the people may be better secured against the danger of standing
armies in time of peace." The
motion was opposed as "setting a dishonourable
mark of distinction on the military class of citizens," and was rejected.53
Thus
ended the Convention's debate over the relative merits and difficulties of
standing armies and the militia. The
debate was soon to be revived, however, as the new nation prepared to consider
the proposed new form of government.
VI. The Ratification Controversy and the Bill of
Rights
The
new Constitution was signed on September 17, 1787 and the contest over its
ratification soon began. The controversy
was carried on mainly through the printed media. It was an unequal contest because the
proponents of the new government, who now called themselves Federalists,
controlled most of the newspapers. The Antifederalists resorted mainly to pamphlets and handbills.
Because
the Antifederalist effort was decentralized and local
in nature, it is difficult to generalized about the arguments used against the
Constitution. The unifying theme, to the
extent there was one, was that the new government would overreach its powers,
destroy the states, deprive the people of their liberty, and create an
aristocratic or monarchical tyranny. In
finding evidence of such dangers, the Antifederalists
often made inconsistent interpretations of what the Constitution provided. In the case of the militia powers, for
example, it was said that Congress would disarm the militia in order to remove
opposition to its standing army; at the same time it was argued that Congress
would ruthlessly discipline the militia and convert it into a tool of
oppression.
Bearing
in mind the inconsistency of the Antifederalist
position, some of the pamphlets and articles will be examined in order to show
how the fears of military power existed.
One of the most scurrilous critics of the Constitution was "Philadelphiensis."
His identity is uncertain, but he is believed to have been Benjamin
Workman, a radical Irishman and a tutor at the
Who can deny but the president general will be a
king to all intents and purposes, and one of the most dangerous kinds too;
a king elected to command a standing army?
Thus our laws are to be administered by this tyrant; for the whole, or at least the most important part of the
executive department is put in his hands.
The thoughts of military officer possessing
such powers, as the proposed constitution vests in the president general, are
sufficient to excite in the mind of a freeman the most alarming apprehensions;
and ought to rouse him to oppose it at all
events. Every freeman of
Another
anonymous writer, Brutus, appealed to history as proof that standing armies in
peacetime lead to tyranny:
The same army, that in
I firmly believe, no country in the world
had ever a more patriotic army, than the one which so ably served this country
in the late war. But had the General who
commanded them been possess of the spirit of a Julius Caesar or a Cromwell, the
liberties of this country ...[might have] in all probability terminated with
the war.55
Still
another unknown, styling himself "A Democratic Federalist," asserted
that the Revolution had proved the superiority of the militia over standing
armies:
Had we a standing army when the British
invaded our peaceful shores? Was it a standing army that gained the battles of
Some
writers, such as "Centinel," feared that
national control over the militia would transform that bulwark of democracy
into a tool of oppression:
This section will subject the citizens of
these states to the most arbitrary military discipline: even death may be
inflicted on the disobedient; in the character of militia, you may be dragged
from your families and homes to any part of the continent and for any length of
time, at the discretion of the future congress; and as militia you may be made
the unwilling instruments of oppression, under the direction of government;
there is no exemption upon account of conscientious scruples of bearing arms,
no equivalent to be received in lieu of personal services. The militia of
Other
Antifederalist propagandists believed that the true
motive for assertion of national control over the militia was not to use it,
but to destroy it, and thus eliminate any opposition to the new standing
army. The Bostonian who used the
pseudonym "John De Witt" asked these questions about the militia
clauses:
Let us inquire why they have assumed this
great power. Was it to strengthen the
power which is now lodged in your hands, and relying upon you and you solely for aid and support to the
civil power in the execution of all the laws of the new Congress? Is this probable? Does the complexion of this new plan
countenance such a supposition? When
they unprecedently claim the power of raising and
supporting armies, do they tell you for what purposes they are to be raised?
How they are to be employed? How many
they are to consist of, and where stationed?
Is this power fettered with any one of those restrictions, which will
show they depend upon the militia, and not upon this infernal engine of
oppression to execute their civil laws? The nature of the demand in itself contradicts
such a supposition, and forces you to believe that it is for none of these
causes - but rather for the purpose of consolidating and finally destroying
your strength, as your respective governments are to be destroyed. They well know the impolicy
of putting or keeping arms in the hands of a nervous people, at a distance from
the seat of a government, upon whom they mean to
exercise
the powers granted in that government...
It is asserted by the most respectable
writers upon government, that a well regulated militia, composed of the
yeomanry of the country, have ever been considered as the bulwark of a free
people. Tyrants have never placed any
confidence on a militia composed of freemen.58
Anonymous
pamphleteers and propagandists were not the only persons concerned about
standing armies and the militia. Richard
Henry Lee, in a letter that was widely circulated in
Should one fifth, or one eighth part of the
men capable of bearing arms, be made a select militia, as has been proposed,
and those the young and ardent part of the community, possessed of but little
or no property, and all the others put upon a plan that will render them of no
importance, the former will answer all the purposes of any army, while the
latter will be defenceless.59
A
necessary premise underlying Antifederalist attack on
the militia clauses of the Constitution was that these clauses operated to
place exclusive jurisdiction over the militia in the hands of the general
government. Though the Federalists
denied this premise, it was affirmed even by Luther Martin and Elbridge Gerry,
who had been members of the Federal Convention, but who now opposed the
Constitution. Martin is particularly
interesting because he advanced all of the contradictory arguments used by the antifederalists.
Speaking on November 29, 1787 to the
...Engines of power are supplies by the
standing Army - unlimited as to number or its duration, in addition to this
Government has the entire Command of the Militia, and may call the whole
Militia of any State into Action, a power, which it was vainly urged ought
never to exceed a certain proportion.
By organizing the Militia
Congress have taken the whole
power from the State Governments; and by neglecting to do it and encreasing the Standing Army, their power will increase by those very means that will be adopted and urged as an ease to the People.60
Martin
later invoked the opposite approach, that the militia would be subject to
ruthless discipline and martial law, and would be marched to the ends of the
continent in the service of tyranny. In
a letter published on January 18, 1788, Martin wrote that the new system for
governing the militia was "giving
the states the last coup de grace by taking from them the only means of self
preservation."61
Elbridge
Gerry, like many of the pamphleteers, viewed centralized military power as
inseparable from monarchy:
By the edicts of authority vested in the
sovereign power by the proposed constitution, the militia of the country, the
bulwark of defence, and the security of national
liberty is no longer under the control of civil authority; but at the rescript of the Monarch, or the aristocracy, they may
either be employed to extort the enormous sums that will be necessary to
support the civil list - to maintain the regalia of power - and the splendour of the most useless part of the community, or
they may be sent into foreign countries for the fulfilment
of
treaties,
stipulated by the President and two
thirds of the Senate.62
The
supporters of the proposed constitution were well-prepared to meet these and
similar arguments. They had the support
of
To
the general argument that there were not sufficient restrictions on the power
of the proposed general government, the federalists replied that no bill of
rights was necessary. This was because
the Constitution would establish a novel type of government, one of enumerated
power; restrictions were necessary only where full sovereignty was conferred. In Federalist Number 84, Alexander Hamilton
made the argument in these words:
It has been several times truly remarked that
Bills of rights are, in their origin,
stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince Such was MAGNA CHARTA, obtained by the barons, sword in hand from King John. Such were the subsequent confirmations of
that charter by succeeding princes. Such
was the Petition of Right assented to
by Charles, in the beginning of this reign. Such, also, was the Declaration of Right presented by the Lords and Commons
to the Prince of Orange in 1688, and afterwards thrown into the form of an act
of parliament called the Bill of
Rights. It is evident, therefore, that,
according to their primitive signification, they have no application to
constitutions professedly founded upon the power of the people, and executed by their immediate
representatives and servants.63
To
particular criticism of the military clauses of the proposed Constitution, both
Hamilton and Madison replied in detail in the Federalist Papers.
Here I expect we shall be told that the
militia of the country is its natural bulwark, and would be at all times equal
to the national defence. This doctrine, in substance,
had like to have lost us our independence.
It cost millions to the
The American militia, in the course of the
late war, have, by their valor on numerous occasions, erected eternal monuments
to their fame; but the bravest of them feel and know that the liberty of their
country could not have been established by their efforts alone, however great
and valuable they were. War, like most
other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and
by practice.64
The
arguments of the federalists appear to have quieted the fears of their
countrymen, since the early state conventions were all easy victories for the
new Constitution. Between December 7,
1787 and January 9, 1788,
On
the other hand,
As
yet undecided,
The
main protagonist of the
A standing army we shall have, also, to
execute the execrable commands of tyranny; and how are you to punish them? Will you order them to be punished? Who shall obey these orders? Will your mace-bearer be a match for a
disciplined regiment? In what situation
are we to be?...
Your militia is given up to Congress, also,
in another part of this plan: they will therefore act as they think proper: all
power will be in their own possession. You
cannot force them to receive their punishment: of what service would militia be
to you when, most probably, you will not have a single musket in the
state? For, as arms are to be provided
by Congress, they may or may not furnish them...
By this, sir, you see that their control over
our last and best defence is unlimited. If they neglect or refuse to discipline or
arm our militia, they will be useless: the states can do neither - this
power being exclusively given to
Congress...
If we make a king, we may prescribe the rules
by which he shall rule his people, and interpose such checks as shall prevent
him from infringing them; but the President, in the field, at the head of his
army, can prescribe the terms on which he shall reign master, so far that it
will puzzle any American ever to get his neck from under the galling yoke...67
While
other critics lacked Henry's oratorical talents, they also feared disarmament
of the militia by the new national government.
George Mason, for example, spoke as follows:
...
There are various ways of destroying the militia. A standing army may be perpetually
established in their stead. I abominate
and detest the idea of government, where there is a standing army. The militia may be here destroyed by that
method which has been practised in other parts of the
world before; that is, by rendering them useless - by disarming them. Under various pretences, Congress may
neglect to provide for arming and disciplining the militia; and the state
governments can not do it, for Congress has an exclusive right to arm them...68
Mason
then went on to cite the case of a former British governor of
This was a most iniquitous project. Why should we not provide against the danger
of having our militia, our real and natural strength, destroyed? The general government ought, at the same
time, to have some such power. But we
need not give them power to abolish our militia...70
In
these words lie the origin of the Second Amendment. The new government should be allowed to keep
its broad general military powers, but it should be forbidden to disarm the
militia.
Madison,
leader of the Federalist forces, still argued that the militia clauses were
adequate as written. He said the states
and national government would have concurrent power over the militia. In response to a question, he explained why
the general government was to have
power to call out the militia in order to execute the laws of the union:
If resistance should be made to the execution
of the laws, he said, it ought to be overcome.
This could be could be done only in two ways - either by regular forces or by the
people. If insurrections should arise,
or invasions should take place, the people ought unquestionably to be employed,
to suppress and repel them, rather than a standing army. The best way to do these things was to put
the militia on a good and sure footing, and
enable the government to make use of their services when necessary.71
It
is interesting to note that
The
Federalists still maintained that a bill of rights was unnecessary where there
was a government of enumerated powers.
Governor Randolph, who had attended the Philadelphia Convention and had
refused to sign the Constitution, but who was now supporting its adoption,
spoke as follows:
On the subject of a bill of rights, the want
of which has been complained of, I will observe that it has been sanctified by
such reverend authority, that I feel some
difficulty in going against it.
I shall not, however, be deterred
from giving my opinion on this occasion, let the consequence be what it
may. At the beginning of the war, he had
no certain bill of rights; for our charter cannot be considered as a bill of
rights; it is nothing more than an investiture, in the hands of the
This
statement is very important, because it clearly explains how men in the
eighteenth century conceived of a right.
A right was a restriction on governmental power, necessitated by a
particular abuse of that power.
The
The
declaration of principles tells much about the social and political philosophy
of eighteenth century Americans. The
theory of government as a social compact is affirmed. There are five provisions that relate directly
to the background of the Second Amendment.
The
third principle condemns the Anglican doctrine of nonresistance as
"absurd, slavish, and destructive of the good and happiness of
mankind."73 This is
not surprising, since
The
seventh principle is "that all power of suspending laws or the execution
of laws by any authority, without the
consent of the representatives of the people in the legislature is injurious to
their rights, and ought not to be exercised."74 The attempt to assert such power had cost
James II his throne and George III his American
colonies, even though both Kings had been backed by powerful standing armies.
The
seventeenth, eighteenth and nineteenth principles are as follows:
Seventeenth, That the people have a right to keep and bear
arms; that a well regulated Militia composed of the body of the people trained
to arms is the proper, natural and safe defence of a
Eighteenth, That no Soldier in time of peace ought to be
quartered in any house without the consent of the owner, and in the time of war
in such manner only as the laws direct.
Nineteenth, That any person religiously scrupulous of
bearing arms ought to be exempted upon payment of an equivalent to employ
another to bear arms in his stead.75
These
words encapsulate the Whig point of view in the long debate over the relative
merits of standing armies and the militia.
The specific amendments that were proposed to protect these principles
were:
Ninth, That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of
two thirds of the members present in
both houses.
Tenth, That no soldier shall be inlisted for any
longer term than four years, except in
time of war, and then for no longer
term than the continuance of the war.
Eleventh, That each State respectively shall have the power to provide for organizing, arming and disciplining it's own Militia, whensoever Congress
shall omit or neglect to provide for
the same. That the Militia shall not be
subject to Martial law, except when in actual service in time of war, invasion,
or rebellion; and when not in the actual service of the
or
inflicted by the laws of its own State.76
It
is important for our purposes to note that there is no mention here of any
individual right.
The Purpose of the Second
Amendment
There
might never have been a federal Bill of Rights had it not been for one alarming
event that is almost forgotten today. As
part of the price of ratification in
The Bill of Rights was thus born of
The right of the people to keep and bear arms
shall not be infringed; a well
armed but 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.78
There
was debate in Congress over the religious exemption, and it was removed. Otherwise, there was general discussion of
standing armies and the militia, and widespread support for the proposal. It became part of the Constitution with the
rest of the Bill of Rights on December 15, 1791.
Considering
the immediate political context of the Second Amendment, as well as its long
historical background, there can be no doubt about its intended meaning. There had been a long standing fear of
military power in the hands of the executive, and, rightly or wrongly, many
people believed that the militia was an effective military force which
minimized the need for such executive military power. The proposed Constitution authorized standing
armies, and granted sweeping Congressional power over the militia. Some even feared disarmament of the militia. The Second Amendment was clearly and simply
an effort to relieve that fear.
Neither
in the Philadelphia Convention, in the writings of the Second Amendment rather
than the "individualist" interpretation is supported by history. It thus becomes necessary to examine the
decisions of the Supreme Court in order to determine whether that body has
expanded the right to bear arms beyond what was intended in 1789.
VII. Supreme Court
Interpretation
of the Second Amendment
The
Second Amendment has been directly considered by the Supreme Court in only four
cases: United States v. Cruikshank,79
Presser v. Illinois,80 Miller
v. Texas81 and
In
Cruikshank, the defendants had been
convicted of conspiracy to deprive negro citizens of the rights and privileges
secured to them by the Constitution and laws of the
Chief
Justice Waite, speaking for the majority, held that the rights violated by the
defendants were not secured by the Constitution or laws of the
In
particular reference to the Second Amendment, the opinion states:
The second and tenth counts are equally
defective. The right there specified is
that of "bearing arms for a lawful purpose." This is not a right granted by the
Constitution. Neither is it in any
manner dependent upon that instrument for its existence. The second amendment declares that it shall
not be infringed; but this, as has
been seen, means no more than that is
shall not be infringed by Congress. This
is one of the amendments that has no other effect than to restrict the powers of the national government, leaving
the people to look for their protection
against any violation by their fellow-citizens of the rights it recognizes, to
what is called, in The City of New York
v. Miln, 11 Pet. 139, the "powers which
relate to merely municipal legislation, or what was, perhaps, more properly
called internal police,"
"not surrendered or restrained" by the Constitution of the United
States.83
The
only dissenter in Cruikshank was
Justice Clifford, who found the indictment vague on its face. He thus concurred in the result reached by
the majority without discussing any constitutional issues.
The
next, and undoubtedly the most important Second Amendment case was Presser v. Illinois84
decided in 1886. Herman Presser, a
German-American, was the leader of Lehr und Wehr Verein, a fraternal, athletic and paramilitary
association incorporated under
On
appeal to the United States Supreme Court, it was contended that the
It
should be emphasized that Presser was argued and decided as a case presenting
broad issues of the relationship of state and federal military power, and that
the Second Amendment was only one aspect of that question. In reference to the
We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe
the right of the people to keep and bear arms.
But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment
is a limitation only upon the power of
Congress and the National government,
and not upon that of the States.85
The
Court cited Cruikshank in support of
this proposition. The inapplicability
of the Second Amendment to the states was a sufficient ground for rejecting
Presser's Second Amendment contentions, but the Court did not stop there. It preferred to discuss the problem further
and make clear the nature of the right protected by the Second Amendment.
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 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 government.86
One
view of the Second Amendment suggests that this dicta constitutes the first
step toward incorporating the right to bear arms into the Fourteenth Amendment,87
apparently forgetting that the Court was laying the Second Amendment "out
of view." The Court had stated that
the
To
further clarify its view that the Second Amendment is concerned only with
military matters, the opinion focuses on Presser:
The plaintiff in error was not a member of
the organized volunteer militia of the
State of
The
obvious implication here is that any right to bear arms by virtue of the Second
Amendment, even if asserted against the national government, is contingent upon
military service in accordance with statutory law. This implication is confirmed later in the
opinion, as the Court declared:
The right to voluntarily associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an
act of Congress or law of the State
authorizing the same, is not an
attribute of national citizenship.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.89
Thus
the Presser case clearly affirms the
meaning of the Second Amendment that was intended by its framers. It protects only members of state militia,
and it protects them only against being disarmed by the federal
government. There is no individual right
that can be claimed independent of state militia law. Furthermore, the dicta relating to
preservation of the nation's military capacity could not be used as the basis
for questioning any regulation of private firearms, unless such a regulation
violated an act of Congress: Congress is obviously the best judge of the proper
means of preserving the nation's military capacity.
The
third, and least important, of the Second Amendment cases was Miller v. Texas.90 A convicted murderer asserted that the state
had violated his Second and Fourth
Amendment rights. The Supreme
Court unanimously dismissed the claim in one sentence, relying on the
inapplicability of these provisions to the states, and citing Cruikshank and other cases.
The
fourth and last time that the Supreme Court considered the Second Amendment was
in
Defendants
Miller and
When
Miller was argued before the High
Court, there was no appearance for the defendants. With only one side presenting a case, it is
easy to under stand why the Court viewed the issues as rather simple, and not
needing very much analysis.
The
Court began by observing that the National Firearms Act was a valid revenue
measure, and not a usurpation of the police powers of the states. The opinion then addresses itself to the
Second Amendment issue:
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 has 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. Certainly it is not within
judicial notice that this weapon is any part of the ordinary military equipment
or that its use could contribute to the common defense.93
It
is this paragraph that is the source of the uncertainty and confusion arising
from the Miller case. The Court was merely correcting the error of
the district judge, but it made the mistake of looking at the weapon, rather
than the person, in determining that the Second Amendment is not applicable.
Fortunately,
however, Justice McReynolds went on and partially clarified the ambiguity in
the above paragraph. He cited the
militia clauses of the Constitution and said:
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.94
These
words alone undercut any individual right interpretation of the Second
Amendment.
Justice
McReynolds then proceeded to give a brief history of the militia, stressing its
function as a military force. He then
considered the relevance of state interpretations of the right to bear arms,
and noted:
Most if not all of the States have adopted provisions touching the right to
keep and bear arms. Differences in the
language employed in these have
naturally led to somewhat variant
conclusions concerning the scope of
the right guaranteed.95
He
concluded that such decisions did not support the trial judge's ruling. He then referred the reader to "some of
the more important opinions" concerning the militia. First among these opinions was Presser v. Illinois.96
Thus,
in spite of some ambiguity in the Court's opinion in Miller, there is no reason to suppose that there was any change in
the established view that the Second
Amendment defines and protects a collective right that is vested only in
the members of the state militia.
VII.
Conclusion
In
the last angry decades of the twentieth century, members of rifle clubs,
paramilitary groups and other misguided patriots continue to oppose legislative
control of handguns and rifles. These
ideological heirs of the vigilantes of the bygone western frontier era still
maintain that the Second Amendment guarantees them a personal right to
"keep and bear arms."97
But the annals of the Second Amendment attest to the fact that its
adoption was the result of a political
struggle to restrict the power of the national government and to prevent the
disarmament of state militias.98
Not unlike their English forbears, the American revolutionaries had a
deep fear of centralized executive power, particularly when standing armies
were at its disposal. The Second
Amendment was adopted to prevent the arbitrary use of force by the national
government against the states and the individual.
Delegates
to the Constitutional Convention had no intention of establishing any personal
right to keep and bear arms. Therefore
the "individualist" view of the Second Amendment must be rejected in
favor of the "collectivist" interpretation, which is supported by
history and a handful of Supreme Court decisions on the issue.
As
pointed out previously, the nature of the Second Amendment does not provide a
right that could be interpreted as being incorporated into the Fourteenth
Amendment. It was designed solely to
protect the states against the general government, not to create a personal
right which either state or federal authorities are bound to respect.
The
contemporary meaning of the Second Amendment is the same as it was at the time
of its adoption. The federal government
may regulate the National Guard, but may not disarm it against the will of
state legislatures. Nothing in the
Second Amendment, however, precludes Congress or the states from requiring
licensing and registration of firearms; in fact, there is nothing to stop an
outright congressional ban on private ownership of all handguns and all rifles.
FOOTNOTES
1.
2. N.Y. Times, Dec. 2, 1973, Sec. 1, at 1, col. 5 (city ed.).
3.
4. Congressional lethargy cannot
be attributed to a lack of proposed legislation. At every session of the Congress, a number of
bills for the control of handguns and other weaponry are introduced, only to be
shunted to committee and never heard from again. For example, the following is only a partial
listing of proffered statutes for the First Session of the 94th Congress: S.
750 was introduced by Senator Hart
(Mich.) to prohibit the importation, manufacture, sale, purchase, transfer, receipt, possession or
transportation of handguns unless authorized by federal or state
authorities. S. 1477, introduced by
Senator Kennedy (
S. 1880, authored by Senator
Bayh (
In addition, there is a
major bill pending in the House of Representative which is not duplicated in the Senate. H.R.
2381 would prohibit the importation and manufacture of hollow-point
bullets. This bill is now pending in the
5. See, e.g., Roe V. Wade,
410 U.S. 113 (1973) (the question of abortion); Schechter Corp. v.
6. Scott, Leading
Senator Admits Gun Law Mistake, Mar
1970 Guns & Ammo.
7.For an
earlier article which discusses the
"collectivist"
versus the
"individualist" approach to
the Second Amendment, see Feller
& Gotting,
The Second Amendment: A Second Look,
61 Nw. U.L. Rev. 46 (1966-67). The
authors conclude: "[t]he 'right of
the people' refers
to the collective right of the
body politic of each state to
be under the
protection of an independent, effective state
militia".
8. The
Assize of Arms, Par. 4 (1181),
in 2
English Historical Documents 416
(D. Douglas & G. Greenaway ed. 1953).
9. Magna
Carta: Text and Commentary 34 (A.E.D. Howard ed. 1964).
10. R.
Pound, The Development of Constitutional Guarantees of
11. Statute
of Northhampton, 2 Edw. 3, c.3 (1328).
12. Treasons
Act., 13 Eliz. 1, c. 1 (1571).
13. King James I, The Workes of the
Most High and and Mightie Prince James 529, 531 (1616).
14. 1 Parl. Hist.
15.
16. 7 The
Reports of Sir Edward Coke, KNT 76 (G.
Wilson trans. 1777).
17.Constitutions andCannons
Ecclesiastical, Treated Upon
by the Archbishops of
18. E.
Sheppard, A Short History of the British Army (4th ed. 1959).
19. Disbanding Act, 12 Car. 2, c. 15
(1660).
20. First Militia Act, 13 Car. 2, Stat. I, c. 6 (1661); Second Militia Act, 14 Car. 2, c. 3 (1662).
21. 2 W.
Churchill, A History of the English-Speaking Peoples 336 (1956).
22. Game Preservation Act, 22 Car. 2, c. 25, Sec. **3 (1670).
23. Test Act. 25 Car. 2, c. 2, (1673): Parliamentary Test Act, 30 Car. 2, Stat. 2, c. 1 (1678) (an exemption allowed the Duke
of York to retain
his seat in the House
of Lords).
24. 9 H.C.
Jour. 756 (1685).
25. J. Dryden, Cymon
and Iphigenia, in the Poetical
Works of John Dryden 641 (W. Christie ed. 1893).
26. Godden v. Hales, 89
27.
28. Bill of Rights, 1 W. & M., sess. 2, c.2 (1689).
29.
30.
31. 1 Geo. 1, Stat. 2, c. 54 (1715).
32.
33. 1 G.
Chalmers, Opinions of Eminent
Lawyers on Various
Points of English Jurisprudence 194, 195 (1814).
34. Declaratory Act, 6 Geo. 3, c. 12
(1766).
35. J.
Otis, The Rights of the British Colonies
Asserted and Proved 72-73 (1764).
36. S. Adams, Candidus Letters (1772), in 2 The Writings of Samuel Adams 324-26 (H. Cushing ed. 1906).
37. Fairfax Co. Resolutions, (1774) in A.E.D. Howard, The Road From Runnymede: Magna Carta and Constitutionalism in
38. 1 Journals
of the Continental Congress 1774-1789, 67-68 (Oct.
14, 1774) (W.C. Ford ed.
1904-1907).
39.
40. For example, the Virginia Bill of Rights,
adopted June 12,
1776, declared: "That a well-regulated militia, composed of the
body of the people, trained to arms,
is the proper, natural, and safe defence 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."
The comparable
provision in
41.
42. Letter from George Washington
to the President of Congress, Sept. 24, 1776, in 6 The Writings of George Washington 110, 112 (F. Fitzpatrick ed. 1931-1944).
43. See generally M.
Jensen, The New Nation: A History of the United States
During the Confederation, 1781-1789 (1950).
44. Debates
of the Congress of the
Confederation (June 2,
1783), in 5 The
Debates in the Several State
Conventions on the Adoption of the Federal Constitution 93 (J. Elliot ed. 1836-1845)
[hereinafter cited as State Debates].
45. Drafting the Federal Constitution: A Rearrangement
of Madison's Notes Giving Consecutive Developments of Provisions
in the Constitution of the United
States 10 (A. Prescott
ed. 1941) [hereinafter
cited as Madison Rearranged].
46. Letter from Thomas
Jefferson to William Stephen Smith, Nov. 13, 1787, in 4
The Works of Thomas Jefferson 362 (P.
Ford ed. 1892-1899).
47. 1
The Records of
the Federal Convention of 1787, at 465 (M. Farrand ed. 1911).
48.
49.
50.
51.
52.
53.
54. 'Philadelphiensis'
Letter, Independent Gazetteer (Phila.), Feb. 7, 1788.
55. 'Brutus' Letter,
N.Y. Journal, Jan. 24, 1788.
56. 'A Democratic Federalist' Letter,
57. 'John De Witt' Letter, Am. Herald (
59. R. H. Lee Observations Leading to a Fair
Examination of the System of Government
Proposed by the Late Convention 24-25 (1787).
60. 3
The Records of
the Federal Convention of 1787, at 157 (M. Farrand ed. 1911).
61. Martin, Letter,
62. E. Gerry, Observations on the New Constitution and on
the Federal and State Conventions 10 (1788).
63. The Federalist No. 84, at 536 (H. Lodge ed. 1888) (A. Hamilton).
64.
65.
66.
67. Spoken at the Virginia Convention 3 State
Debates 51-59.
68.
69.
70.
71.
72.
73. J.
74.
75.
76.
77. M.
Jensen, the Making
of the American Constitution 149
(1964).
78. 1 Annals of Cong. 434 (1789).
79. 92
80. 116
81. 153
82. 307
83. 92
84. 116
85.
86.
87. See
generally H. Black, The Bill of Rights, 35 N.Y.U.L. Rev. 865 (1960).
88.
89.
90. 153
91. 307
92. National Firearms Act as amended
26 U.S.C. Sections 5801-5872 (1972).
93. 307.U.S. at 178>
94.
95.
96. 116
97. A recent call to action was made by an organization
which calls itself
the Sheriff's Posse
Comitatus. This
group, dismayed over claimed
violations of the Second
Amendment promises to "come
together and do something about
it." Its propaganda concludes rather ominously, "The PEOPLE are the
rightful masters to both congress
and courts, not to
over throw (sic)
the Constitution, but to over throw (sic) the men who pervert
the Constitution." Flyer,
Sheriff's Posse Comitatus,
98. See notes 60-66 and
accompanying test.