The Right to Have Arms
and Use Deadly Force
Under the Second and
Third Amendments
by David I. Caplan
SUMMARY
The constitutional right of the people to keep arms has deep roots in
common law and constitutional history, and it remains of fundamental importance
to this day. This right is explicitly guaranteed in the Second Amendment in the
Bill of Rights and includes the keeping by private citizens of any hand-carried
arms commonly used by private individuals and police for personal defense.
Because "A man's house is his castle and his defense," and
because the Third Amendment in the Bill of Rights prohibits government from
quartering soldiers in a person's house during times of peace without his consent,
the constitutional right of the people to keep arms must guarantee at its core the
legally unfettered ability of the householder to acquire speedily and to keep permanently
and anonymously in his house such arms as are commonly used for home defense,
not only as a means for resistance against violent burglars but also as a
strong moral check and deterrent against illegal quartering of troops in his
house.
A key purpose of the constitutional right of the people to keep arms
was enunciated in Presser v. Illinois
decided by the U.S. Supreme Court in 1886, to wit, "for maintaining the
public security" -- that is, for citizen participation in preventing and
suppressing violent felonies and capturing violent felons on the spot, a public
purpose of great current importance and necessity, as at the common law.
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STATEMENT
According to a 1977 Library of Congress, Congressional Research
Service, legal analysis entitled "The Second Amendment: A Legal
Analysis," the constitutional right of the individual citizen to keep arms
has been "forcefully"1 presented as follows:
The Second Amendment in the Federal Bill of Rights
guarantees 'the right of the people to keep and bear arms.' This little
understood and hence most under valued Article in our Bill of Rights was intended
by its Framers to preserve our democratic-republican form of government and to prevent
it from destroying the ballot box and from slipping into tyrannical
totalitarianism. Especially when combined with the Ninth Amendment's bundle of rights
which was retained by the people and with the Fifth Amendment's right to life, liberty,
and property, the Second Amendment also plainly guarantees the private individual
right to keep and carry Arms for the added purpose of self- preservation and defense
of the individual...
The history and debates surrounding this 2d
Amendment show that its Framers intended that a well regulated militia was only
one of the purpose for the right of the people to keep and bear Arms. Viewed in
another aspect, the 2d Amendment was adopted to obtain a militia which would be
"well regulated" by the right of the people to keep and bear
arms."2
The
constitutional right of the people to keep and bear arms is further guaranteed
today by the constitutions of thirty-seven States.3 This
constitutional right inherently includes the right to use those arms for
self-protection against attacks by burglars, robbers, arsonists, rapists, and other
marauders--according to a judicial decision decided in 19644
in Louisiana, a State noted for pioneering the modern rules in America for the justifiable
use of deadly force.5
This constitutional right to keep arms is further confirmed by the Third
Amendment in the Federal Bill of Rights (prohibiting quartering of soldiers in
any house during times of peace without the consent of the owner) and the
Fourth Amendment (prohibiting unreasonable searches and seizures), especially
because of the close historical association -- well-known to the Framers of the
Bill of Rights -- between governmental disarming of the populace and quartering
of troops, as well as mass searches and seizures.6
"A
man's house is his castle and his defense, and where he has a peculiar right to
stay..." declared an English court7 in 1506, in the
context of the right to protect oneself from bodily harm. As explained by Lord
Coke:8
And yet in some cases a man may not only use force
and arms, but assemble company also. As any man may assemble his friends and neighbors
to keep his house against those that come to rob him, or kill him, or to offer
him violence in it,...for a man's house is his castle, &c domus sua cuique
est tutissimum refugium [a house is for everyone his safest refuge]; for where
shall a man be safe, if it be not in his house? And in this sense it is truly
said
Armaque in armatos sumere jura sinunt.
[The laws permit taking up arms against armed
persons.]
The
importance of the foregoing quote, from Coke's Institutes of the Laws of England, resides in the fact that of all
the books on either law or politics in colonial libraries "the most common
was Coke's Institutes"9 and that the U.S. Supreme Court has recently
expressed the opinion that Lord Coke was "widely recognized by the
American colonist as the greatest authority of his time on the laws of
England.'"10
Thus Coke's Institutes formed the
basis upon which the Framers of the Bill of rights drafted "in a compact
draft,...express in terms of the common law,"11 such Articles in
the Bill of Rights as the right to keep and bear arms, and the right to be free
in one's own house from quartering of soldiers during times of peace without
his consent even when all else fails.
In
Of
particular importance thus is the Second and Third Amendment protection of the
right to keep arms in the house permanently and anonymously--that is, arms immune
from registration or licensing; and the right to acquire those arms quickly and
with no legal impediments or burdens is thus also guaranteed. Moreover, the
procedural and substantive due process concern for the individual's "life,
liberty, [and] property" contained in the Fifth and Fourteenth Amendments,
as well as the right to privacy and other non-enumerated personal rights
protected by the Ninth Amendment,15 further confirm
and guarantee the individual constitutional right to keep and use arms for
"self preservation and defence."16
The
constitutional test of "balancing of interests"17
cannot be applied in cases of core constitutional rights. Thus, for example, the
U.S. Supreme Court in a 1979 case18 refused to consider
any balancing of conflicting interests when dealing with "the
constitutional privilege against compulsory self-incrimination in its most pristine
form."19
Similarly, by the same token, there can be no balancing -of-interest test when
dealing with the "unqualified"20 right to keep arms as opposed to the qualified right
to bear arms. The keeping of
handguns in the home for self preservation and defense thus lies at the core of
the constitutional right to keep arms for the purpose of defending one's own
house--one's castle--and may thus not be cut down by any balancing test if we
are going to be at all faithful to fundamental constitutional principles.
Courts
have dealt with the utility of handguns in another context. In order for an
invention to be patentable, it must have utility.21 In a 1969 case,22
the United States Court of Customs and Patent Appeals put its hearty stamp of approval
on its updated quotation from a 1903 decision23 of the U.S.
Court of Appeals, 7th Circuit, in turn quoting from the 1880 textbook Walker on Patents:
An
important question, relevant to utility in this aspect, may hereafter arise and
call for judicial decision. It is perhaps true, for example, that the invention
of Colt's revolver was injurious to the good order of society. That instrument
of death may have been injurious to morals, in tending to tempt and to promote the
gratification of private revenge. It may have been injurious to health, in that
it is very liable to accidental discharge, and thereby to cause wounds, and
even homicide. It may also have been injurious to good order, especially in the
newer parts of the country, because it facilitates and increases private warfare
among frontiersmen. On the other hand, the revolver, by furnishing a ready
means of self-defense, may sometimes have promoted morals and health and good
order. By what test, therefore is utility to be determined in such cases? Is it
to be done by balancing the good functions with the evil functions? Or is
everything useful within the meaning of the law, if it is used (or is designed
and adapted to be used) to accomplish a bad one? Or is utility negatived by the
mere fact that the thing in question is sometimes injurious to morals, or to
health, or to good order? The third hypotheses cannot stand, because if it
could, it would be fatal to patents for steam engines, dynamos, electric railroads,
and indeed many of the noblest inventions of the nineteenth century. [And what
of such things as automobiles, airplanes, tires, power tools, explosives, lawn mowers,
and drugs in the twentieth century?] The first hypothesis cannot stand, because
if it could, it would make the validity of patents to depend on a question of
fact to which it would often be impossible to give a reliable answer. The second hypothesis is the only one which
is consistent with the reason of the case, and with the practical construction
which the courts have given to the statutory requirements of utility.24
Just
as the revolver's fundamental socially redeeming importance for self-defense thus
renders its invention patentable from the standpoint of utility, likewise this
same self-defense feature renders the possession of a revolver by the
law-abiding citizen worthy of constitutional protection under the Second
Amendment of the Bill of Rights.
The
constitutional right to keep and use arms raises two fundamental threshold issues
as to what arms, and what uses, are constitutionally protected. As with other provisions25
of the Bill of Rights, the common law furnishes the proper standards and criteria
for the right to keep and use arms. In short, the arms protected under the common
law, and hence under the Constitution, in the hands of the citizenry are all those
arms which are "hand-carried weapons [i.e., which can be bourne by an
individual] commonly used by individuals [and police] for personal
defense."26
Thus, firearms such as pistols, revolvers, rifles, and shotguns are all clearly
within the ambit of constitutional protection, and none can logically be
excluded. As to constitutionally protected uses, these include the common-law
justifiable (and not merely excusable)27 uses of deadly
force against violent felons encountered in the act of felony committed by
"violence [and] surprise"28 who "would
not surrender peaceably, but stood on their defense, or fled."29
In all such cases of felonious attacks, the life of the victim is presumed to be in danger under the common
law;30
and hence in all those cases the victim or bystander was justified under common
law to use deadly force to prevent or resist the felony and to capture the felon,
as an act worthy of "commendation rather than blame."31
Accordingly, the justifiable uses of deadly force with firearms commonly used
for the purpose, under common law rules of justification, lies at the core of
the constitutional right to keep and bear arms; their use to defend the home by
preventing or suppressing burglary or arson was "one of the major
privileges of the common law."32
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FOOTNOTES
1The Second Amendment: A Legal Analysis, Congressional Research Service,
Library of Congress (1977) (77-84-A, 639/90, UC 460 B), pp. 43-44.
2"Point Blank",
Vol. VI, No. 7, July 1976, p.2, as quoted in note 1.
3D.I. Caplan, The Right of the Individual to Bear Arms: A
Recent Judicial Trend,
4 McKellar v. Mason, 159 So. 2d 700, 702 (4th La. Cir., 1964)
("The Constitutions of the
5See, Professor H. Wechsler, Chief Reporter of Model Penal Code, statement
in 35th Annual Meeting, The American Law
Institute, Proceedings (1958), p. 285.
6See, Professor H. Wechsler, Chief Reporter of Model Penal Code, statement
in 35th Annual Meeting, The American Law
Institute, Proceedings (1958), p. 285.
7 Anonymous, 21 Henry VII,
39 pl. 50 (K.B., 1506), transl., J.H. Beale, Jr., A selection of Cases and Other Authorities Upon Criminal Law (2nd
ed., 1907), p. 569.
8E.Coke, The Third Part of the Institutes of the
Laws of England, The Mary Ingraham Bunting Institute of Radcliffe College, Bunting
Institute Working Paper (1980), p. 15. See
also, State v. Kessler, 289
9 Payton v.
10
11 Ex parte Grossman, 267
12 394
13
14
15 See, Griswold v.
161 W. Blackstone, Commentaries (1765), p. 140. Facsimile
ed., 1979.
17
18
19
20 Aymette v. State, 21
21 35 U.S. Code sect.102.
22 In re Anthony, 414 F. 2d 1383 (CCPA, 1969).
23 Fuller v. Berger, 120 Fed. 274 (7th Cir., 1903)
24 In re Anthony, supra
note 22, 414 F. 2d n. 12.
25 For example, in Payton v.
26 State v. Kessler, 289 Oregon Reports p. 359, at p. 371, 614 Pacific
Reporter, 2d Series, p. 94, at p. 100 (1980). Compare the English common-law standard
of "wearing common weapons." 1 W. Hawkins, Pleas of Crown (5th ed., 1771), p. 136.
27 For the distinction
between justifiable and excusable homicide, see, R.M. Perkins, Criminal
Law (2nd ed., 1969), pp. 1001 - 1002. Basically, justifiable homicides
arose in the killing of violent burglars, robbers, arsonists, and rapists
caught in the act or in immediate flight therefrom; excusable homicides arose
in sudden brawls, heat of passion or accidents. He who committed a justifiable
homicide was fully acquitted and discharged; he who committed a merely
excusable homicide required a pardon from the crown in order to be released
from jail and at various times in English history, forfeited his worldly goods
even if pardoned.
28 Beard v.
30
31 4 W. Blackstone, Commentaries on the Laws of
32 R.M. Perkins, Criminal Law (2nd ed., 1969), p.992 p.
1004.