THE RIGHT OF THE PEOPLE OR THE POWER OF THE STATE
BEARING ARMS, ARMING MILITIAS, AND THE SECOND AMENDMENT
by
Stephen P. Halbrook
(Obtained via the Internet on 06 Jun 1998, at: http://www.constitution.org/mil/jfp6ch04.txt)
Recognized as the foremost historian of the Second Amendment, Dr. Halbrook received his Ph.D. in philosophy from Florida State University, and his J.D. from Georgetown University. An attorney in Fairfax, Virginia, Dr. Halbrook has written two books: A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Greenwood Press 1989) and That Every Man Be Armed: The Evolution of a Constitutional Right (University of New Mexico Press 1984; reprinted by the Independent Institute, 1990. The book may be ordered by calling 1-800-927-7833). A longer version of this article was first published in Valparaiso Law Review, vol. 26, number 1, page 131 (1991). Copyright 1991 by Stephen P. Halbrook.
Introduction
I. The Constitutional Convention of 1787
II. The Struggle for Ratification of the Constitution
A. The Pennsylvania Convention and the Dissent of the Minority
B. The Federalist Response
C. Samuel Adams' Proposal at the Massachusetts
Convention
D. "Congress Shall Never Disarm Any Citizen":
The New Hampshire Demands
E. "Things So Clearly Out of the Power of
Congress": Debate in the Public Forum
F. "That Every Man Be Armed":
The Virginia Convention
G. The New York Convention
H. The North Carolina Convention
I. The Armed Populace: Philosophical
and Pre-Revolutionary Influences
III. The Adoption of the Bill of Rights
A. Madison's Proposed Amendments
B. Action by the House Select Committee
C. House Debate
D. Senate Debate
E. Ratification by the States
F. Rhode Island Assents
IV. The Federal Militia Act of 1792
Conclusion: Supreme Court Jurisprudence
A. The Power of the States
B. The Right of the People
Introduction
On this two hundredth anniversary of its adoption, the Second Amendment to the United States Constitution, like certain other provisions of the Bill of Rights, has been subjected to politically-valued, result-oriented interpretation.1 The Second Amendment 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 infringed."
The ostensibly-harmless philosophical declaration about the
militia which precedes the substantive guarantee belonging to "the
people" has given rise to the argument that the amendment somehow
protects only the power of a state to maintain a militia. While
harboring no agenda for state militia powers, advocates of this
hypothesis strongly oppose firearms ownership by the general public.2
There is a hidden history of the Second Amendment which is long overdue to be written. It is this: during the ratification period of 1787-1791, Congress and the states considered two entirely separate groups of amendments to the Constitution. The first group was a declaration of rights, in which the right of the people to keep and bear arms appeared. The second group, consisting of amendments related to the structure of government, included recognition of the power of states to maintain militias. The former became the Bill of Rights, while the latter was defeated.3 Somehow, through some Orwellian rewriting of history, as applied to the issues of the right of the people to keep and bear arms and the state militia power, that which was defeated has become the meaning of that which was adopted.
The state power to maintain militias vis-a-vis the federal military power was already treated in the text of the Constitution before the Bill of Rights was proposed. Article I,paragraph 8 empowers Congress "to declare War,...to raise and support Armies...[and] to make Rules for the Government and Regulation of the land and naval Forces...." Congress is also empowered:
"To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions; To provide for
organizing, arming, and disciplining, the Militia, and for governing
such Part of them as may be employed in the Service of the United
States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress...."4
The writing of this hidden history of the Second Amendment is timely, given the current assault on firearms ownership in the Congress and some States. By happenstance, the Supreme Court decided two cases in 1990 which contribute to an understanding of these issues. First, in United States v. Verdugo-Urquidez, a Fourth Amendment case, the Court made clear that all law-abiding Americans are protected by the Second Amendment as follows:
"The people" seems to have been a term of art employed in select parts of the Constitution....The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law... abridging... the right of the people peaceably to assemble");
Art. I, paragraph 2, cl. 1 ("The House of Representatives shall be
composed of Members chosen every second year by the People of the
several States")(emphasis added). While this textual exegesis is by no
means conclusive, it suggests that "the people" protected by the
Fourth Amendment, and by the First and Second Amendments, and to whom
rights and powers are reserved in the Ninth and Tenth Amendments,
refers to a class of persons who are part of a national community or
who have otherwise developed sufficient connection with this country
to be considered part of that community.5
In dissent, Justice Brennan argued even more broadly that
the term 'the people' is better understood as a rhetorical
counterpoint 'to the government,' such that rights that were reserved
to 'the people' were to protect all those subject to 'the
government'...'The people' are 'the governed.'6
Justice Brennan also reviewed the drafting history of the Fourth
Amendment, noting that the Framers could have limited the right to
'citizens,' 'freemen,' 'residents,' or the 'American
people.'...Throughout that entire process, no speaker or commentator,
pro or con, referred to the term 'the people' as a limitation.7
Similarly, the Framers could have limited the Second Amendment right to select state militias, but instead used the terms "the people."
Finally, Justice Brennan pointed out that rights are not "given to the people from the government....The Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing." This statement is particularly applicable to the right to keep and bear arms, which has been recognized as a personal right for centuries.
The second 1990 Supreme Court opinion has relevance to the twentieth-century argument that the Second Amendment protects only the "right" of a state to maintain a militia, and that the "militia" is restricted to the National Guard. In Perpich v. Department of Defense (1990), the Court recognized that the National Guard is part of the Armed Forces of the United States and that the Reserve Militia includes all able-bodied citizens.
The issue was whether the militia clause allows the President to order members of the National Guard to train outside the United States without the consent of a state governor or the declaration of a national emergency. Perhaps the most noteworthy fact about the opinion is its failure to mention the Second Amendment at all, that amendment being irrelevant to the issue of the state power to maintain a militia. In fact, the Court refers to the state power over the militia as being recognized only in "the text of the Constitution," not in any amendment:
Two conflicting themes, developed at the Constitutional Convention and repeated in debates over military policy during the next century, led to a compromise in the text of the Constitution and in later statutory enactments. On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States, while, on the other hand, there was a recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. Thus, Congress was authorized both to raise and support a national army and also to organize "the Militia."
The Court then reviewed Congress' various militia enactments.
The first, passed in 1792, provided that "every able-bodied male citizen between the ages of 18 and 45 be enrolled [in the militia] and equip himself with appropriate weaponry...." In 1903, new legislation "divided the class of able-bodied male citizens between 18 and 45 years of age into an 'organized militia' to be known as the National Guard of the several States, and the remainder of which was then described as the 'reserve militia,' and which later statutes have termed the 'unorganized militia.'" Both of the above were passed under the Militia Clauses of the Constitution.
By contrast, in legislation dating to 1916, "the statute expressly provided that the Army of the United States should include not only 'the Regular Army,' but also 'the National Guard while in the service of the United States'...." Today's National Guard came into being through exercise by Congress of the power to raise armies, not the power to organize the militia.
The Court referred to "the traditional understanding of the militia as a part-time, nonprofessional fighting force," and as "a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace." The Court also recognized the existence of "all portions of the 'militia'_organized or not...."
The Court concluded that "there is no basis for an argument that the federal statutory scheme deprives [a state] of any constitutional entitlement to a separate militia of its own."8 The Court failed even to suggest that the Second Amendment had any bearing on the issue.
In sum, it was clear enough to the Supreme Court in 1990 that "the people" in the Second Amendment means individuals generally, as it does in the rest of the Bill of Rights; that the "militia" means the body of armed citizens at large, organized and unorganized; and that the Second Amendment is not relevant to the power of a states to maintain the militia.
This analysis begins with the adoption of the militia clause, and the first calls for a bill of rights, in the constitutional convention of 1787. It then traces chronologically the ratification struggle in the state conventions and in the writings of federalists and antifederalists. The proposal and adoption of the Bill of Rights in Congress, first by the House and then by the Senate, is scrutinized, along with explanations and criticisms published in the public forum and ratification by the states. The historical portion of this study ends with a review of enactment of the militia act of 1792 by the First Federal Congress. Concluding remarks relate to pre-1990 Supreme Court jurisprudence.
I. THE CONSTITUTIONAL CONVENTION OF 1787
In the Constitutional Convention of 1787, the issue of the
militia was first raised in reaction to a proposal that the national
legislature be empowered to negate state laws. Elbridge Gerry of
Massachusetts observed on June 8 "that the proposed negative would
extend to the regulations of the militia_a matter on which the
existence of the state might depend. The national legislature, with
such a power, may enslave the states."9
George Mason of Virginia raised the topic on August 18, proposing "a power to regulate the militia."10 Reliance on the militia for the public defense would preclude a peacetime standing army. "Thirteen states will never concur in any one system, if the disciplining of the militia be left in their hands."11 By regulating or standardizing the militia, the general government would assist the states in preserving their powers.
Mason proposed a power "to make laws for the regulation and
discipline of the militia of the several states, reserving to the
states the appointment of officers."12 "He considered uniformity as
necessary in the regulation of the militia, throughout the Union."13
Oliver Ellsworth of Connecticut proposed that "the militia should have
the same arms and exercise, and be under rules established by the
general government when in actual service of the United States; and
when states neglect to provide regulations for militia, it should be
regulated and established by the legislature of the United States."14
He explained: "The whole authority over the militia ought by no means
to be taken away from the states, whose consequence would pine away to
nothing after such a sacrifice of power."15
John Dickinson of Delaware supported both Mason and Ellsworth.
A most important matter was "that of the sword. His opinion was, that
the states never would, nor ought to, give up all authority over the
militia."16 He proposed that the power extend to only part of the
militia at any one time, "which, by rotation, would discipline the
whole militia."17 Mason then incorporated this idea of "a select
militia" into his proposal.18 That term had a less innocent meaning in
the mind of Ellsworth, who "considered the idea of a select militia as
impracticable; and if it were not, it would be followed by a ruinous
declension of the great body of the militia. The states would never
submit to the same militia laws."19
Roger Sherman of Connecticut opined that "the states might want their militia for defense against invasions and insurrections, and for enforcing obedience to their laws."20 Mason agreed, adding to his motion an exception that the general power would not extend to "such part of the militia as might be required by the states for their own use."21 Mason's proposals were then referred to committee.
When reported back to the convention, the militia clause provided that Congress may "make laws for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed ...."22 On August 23, the following debate ensued:
MR. SHERMAN moved to strike out the last member, "and authority of training," &c. He thought it unnecessary. The states will have this authority, if not given up....
MR. [Rufus] KING [of Massachusetts], by way of explanation, said, that by organizing, the committee meant, proportioning the officers and men_by arming, specifying the kind, size, and calibre of arms_and by disciplining, prescribing the manual exercise, evolutions, &c.
MR. SHERMAN withdrew his motion.
MR. GERRY. This power in the United States, as explained, is making the states drill-sergeants. He had as lief let the citizens of Massachusetts be disarmed, as to take the command from the states, and subject them to the general legislature. It would be regarded as a system of despotism.
MR. [James] MADISON [of Virginia] observed, the "arming," as explained, did not extend to furnishing arms; nor the term "disciplining," to penalties, and courts martial for enforcing them.
MR. KING added to his former explanation, that arming meant not only
to provide for uniformity of arms, but included the authority to
regulate the modes of furnishing, either by the militia themselves,
the state governments, or the national treasury; that laws for
disciplining must involve penalties, and everything necessary for
enforcing penalties.23
Thus, the power over the militia was intended to establish standards for exercises and for arms, which the people would furnish themselves. The objective was to provide discipline for the self-armed populace, not to arm or disarm select groups.
The provision would be adopted substantially as proposed. The convention rejected a more comprehensive substitute for the second clause to the effect that Congress would "establish a uniformity of arms, exercise, and organization for the militia...."24 MR.
[Jonathan] DAYTON [of New Jersey] was against so absolute a
uniformity. In some states there ought to be a greater proportion of
cavalry than in others. In some places, rifles would be more proper;
in others, muskets, &c.25
Cavalry, of course, were armed with pistol and sword, and perhaps carbine. Rifles were long-range weapons used by independent frontiersmen and backwoodsmen, while muskets were medium-range arms favored in New England.26 Uniform bore sizes among militiamen in a given locale would allow interchangeable ammunition, but differing terrain and habits of the people precluded uniform types of arms.
In response to Madison's argument that the states neglect the militia, Luther Martin of Maryland replied that "the states would never give up the power over the militia; and that, if they were to do so, the militia would be less attended to by the general than by the state governments."27 After Gerry warned that granting Congress powers inconsistent with the existence of the states would lead to civil war, Madison rejoined that "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."28 The militia clause would protect the power of the states to maintain militias and to retain their sovereignty by precluding a need for standing armies.
On September 12, George Mason "wished the plan had been
prefaced with a bill of rights....It would give great quiet to the
people, and, with the aid of the state declarations, a bill might be
prepared in a few hours."29 Roger Sherman thought the state
declarations sufficed, and that Congress could be trusted.30 Mason
pointed out that "the laws of the United States are to be paramount to
state bills of rights."31 The convention narrowly killed the motion
for a committee to prepare a bill of rights.32
On September 14, Mason moved to insert before the militia clause in Article I, paragraph 8, the declaration "and that the liberties of the people may be better secured against the danger of standing armies in time of peace."33 Draftsman of the Virginia Declaration of Rights of 1776, Mason was the leading author of such declaratory clauses, and would be responsible for a similar one in what became the Second Amendment. Madison supported the motion: "as armies in time of peace are allowed, on all hands, to be an evil, it is well to discountenance them by the Constitution...."34 However, the convention voted against the proposal.
Attempts to declare various rights also failed. Charles Pinckney of South Carolina and Elbridge Gerry offered a declaration "that the liberty of the press should be inviolably observed."35 Again, Roger Sherman killed that proposal with the remark, "It is unnecessary. The power of Congress does not extend to the press."36 This opinion held sway, and the convention proposed the Constitution without a bill of rights.
Two days before the convention ended, delegate Thomas Fitzsimons of Pennsylvania asked Noah Webster to write in support of the proposed Constitution.37 Webster responded with An Examination of the Leading Principles of the Federal Constitution, the first major pro-Constitution pamphlet.38 Webster explained why the armed populace would remain sovereign under a constitution with an army but no bill of rights:
Another source of power in government is a military force. But this,
to be efficient, must be superior to any force that exists among the
people, or which they can command; for otherwise this force would be
annihilated, on the first exercise of acts of oppression. Before a
standing army can rule, the people must be disarmed; as they are in
almost every kingdom in Europe. The supreme power in America cannot
enforce unjust laws by the sword; because the whole body of the people
are armed, and constitute a force superior to any band of regular
troops that can be, on any pretence, raised in the United States. A
military force, at the command of Congress, can execute no laws, but
such as the people perceive to be just and constitutional; for they
will possess the power, and jealousy will instantly inspire the
inclination, to resist the execution of a law which appears to them
unjust and oppressive.39
Tench Coxe, a friend of Madison and another prominent
federalist, argued in his influential "An American Citizen" that,
should tyranny threaten, the "friends to liberty... using those arms
which Providence has put into their hands, will make a solemn appeal
to 'the power above.'"40 Coxe also wrote: "The militia, who are in
fact the effective part of the people at large, will render many
troops quite unnecessary. They will form a powerful check upon the
regular troops, and will generally be sufficient to over-awe them
...."41
Stating the case against ratification of the Constitution without a bill of rights was Richard Henry Lee's Letters from the Federal Farmer, which were first published in October and November of 1787. Predicting the early employment of a standing army through taxation, Lee contended:
It is true, the yeomanry of the country possess the lands, the weight
of property, possess arms, and are too strong a body of men to be
openly offended_and, therefore, it is urged, they will take care of
themselves, that men who shall govern will not dare pay any disrespect
to their opinions. It is easily perceived, that if they have not their
proper negative upon passing laws in congress, or on the passage of
laws relative to taxes and armies, they may in twenty or thirty years
be by means imperceptible to them, totally deprived of that boasted
weight and strength: This may be done in a great measure by congress;
if disposed to do it, by modeling the militia. 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 an army, while the latter will
be defenseless....I see no provision made for calling out the posse
comitatus for executing the laws of the union, but provision is made
for congress to call forth the militia for the execution of them_and
the militia in general, or any select part of it, may be called out
under military officers, instead of the sheriff to enforce an
execution of federal laws, in the first instance, and thereby
introduce an entire military execution of the laws.42
As federalist and antifederalist pens clashed, the state ratifying conventions began to meet to consider the Constitution. Delaware, New Jersey, Georgia, Connecticut, Maryland, and South Carolina would quickly ratify without proposing a declaration of rights. In the other states, amendments would be seriously debated and proposed.
II. THE STRUGGLE FOR RATIFICATION OF THE CONSTITUTION
A. The Pennsylvania Convention and the Dissent of the Minority
The Pennsylvania convention was divided between federalists, who saw Congress' power over the militia as conductive to an armed populace, and antifederalists, who feared that without a bill of rights, the people could be disarmed. The antifederalists also sought an entirely separate amendment to recognize the state power to maintain militias.
James Wilson had served in the constitutional convention of 1787 and was well familiar with the explanation that Congress' power to arm the militia meant standardization, not disarmament. Congress could prescribe common sizes of barrels for firearms required to be possessed by the populace so that ammunition would be interchangeable:
I believe any gentleman, who possesses military experience, will
inform you that men without a uniformity of arms, accouterments, and
discipline, are no more than a mob in a camp; that, in the field,
instead of assisting, they interfere with one another. If a soldier
drops his musket, and his companion, unfurnished with one, takes it
up, it is of no service, because his cartridges do not fit it. By
means of this system, a uniformity of arms and discipline will prevail
throughout the United States.43
John Smilie made the classic antifederalist argument against
Congress' power: Congress may give use a select militia which will, in
fact, be a standing army_or Congress, afraid of a general militia, may
say there shall be no militia at all. When a select militia is formed;
the people in general may be disarmed.44
This argument assumed that the right to keep and bear arms
would be protected by the people combining into general militias to
prevent being disarmed by select forces. By contrast, James Wilson
used the following symbolic argument to contend that the Constitution
allowed for the ultimate force in the populace: "In its principles, it
is surely democratical; for, however wide and various the firearms of
power may appear, they may all be traced to one source, the people."45
The majority of the Pennsylvania convention refused to propose amendments to the Constitution, which was ratified on December 12, 1787. However, the "Dissent of the Minority of the Convention" demanded a declaration of rights. Apparently written by Samuel Bryan, author of "Centinel," the document was first published on December 18, 1787 and was circulated throughout the country.46 Among the rights declared was the following:
That the people have a right to bear arms for the defense of
themselves and their own state, or the United States, or for the
purpose of killing game; and no law shall be passed for disarming the
people or any of them, unless for crimes committed, or real danger of
public injury from individuals; and as standing armies in the time of
peace are dangerous to liberty, they ought not to be kept up; and that
the military shall be kept under strict subordination to and be
governed by the civil powers.47
The above tracked the language of the Pennsylvania Declaration of Rights of 1776 in guaranteeing the right to bear arms for self defense and defense of the state,48 adding defense of the United States and hunting purposes as well. Bearing arms to hunt was not out of place in the article, because Pennsylvanians were very familiar with British laws which disarmed the people under the guise of game laws.49 Similar to the federal First Amendment adopted later, which begins "Congress shall make no law," this proposal states that "no law shall be passed for disarming the people, or any of them"_except that criminals or particular dangerous individuals could be disarmed.
The above clarifies that the terms "bear arms" is not linguistically restricted to matters of the militia or the national defense. Bearing arms for self-defense and hunting were proper purposes. Mention of standing armies and the subordination of the military to the civil power in the same article did not detract from the individual character of the right guaranteed. Indeed, the state power to maintain a militia was proposed in a completely separate amendment:
That the power of organizing, arming, and disciplining the militia
(the manner of disciplining the militia to be prescribed by Congress)
remain with the individual states, and that Congress shall not have
authority to call or march any of the militia out of their own state,
without the consent of such state, and for such length of time only as
such state shall agree.50
The "Dissent" deemed an analysis of some of the proposals to be necessary. The need to retain state power over the militia was explained as follows:
The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private; whether of a personal, civil, or religious nature.
First, the personal liberty of every man probably from sixteen to sixty years of age may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind, and to death itself, by the sentence of a court martial....
Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. These compose a respectable proportion of the community in the state....
Thirdly, the absolute command of Congress over the militia may be
destructive of public liberty; for under the guidance of an arbitrary
government, they may be made the unwilling instruments of tyranny. The
militia of Pennsylvania may be marched to New England or Virginia to
quell an insurrection occasioned by the most galling oppression, and
aided by the standing army, they will no doubt be successful in
subduing their liberty and independency. ...51
Thus, the Pennsylvania convention minority made the first demand of a portion of a ratifying convention for a declaration of individual rights, including bearing arms, and a reservation of state powers, including organizing the militia.
Despite Pennsylvania having ratified the Constitution,
antifederalists continued to demand amendments. One antifederalist
expressed their attitude toward powder and lead (and hence arms) as
follows: "the sons of freedom...may know the despots have not
altogether monopolized these necessary articles."52
While the state had already ratified the Constitution, a number of Pennsylvanians gathered at the "Harrisburg Convention" which, on September 3, 1788, reiterated the call for amendments. Instead of a declaration of specific rights, the convention would have incorporated all of the rights declared in the state bills of rights:
"that every reserve of the rights of individuals, made by the several
constitutions of the states in the Union, to the citizens and
inhabitants of each state respectively, shall remain inviolate, except
so far as they are expressly and manifestly yielded or narrowed by the
national Constitution."53
In a totally separate article, the following amendment was proposed: "That each state, respectively, shall have power to provide for organizing, arming, and disciplining the militia thereof, whensoever Congress shall omit or neglect to provide for the same."54 Thus, individual rights were sharply contrasted from state powers, a linguistic usage which would prevail throughout the next three years.
B. The Federalist Response
The right of the people to keep firearms, particularly those with military uses, argued the Constitution's proponents, would be recognized even without a bill of rights. In The Federalist No. 29, first published in the New York Independent Journal on January 9, 1788, Alexander Hamilton expounded the argument that it would be wrong for a government to require:
the great body of yeomanry and of the other classes of citizens to be
under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well
regulated militia....Little more can reasonably be aimed at with
respect to the people at large than to have them properly armed and
equipped....This will not only lessen the call for military
establishments, but if circumstances should at any time oblige the
government to form an army of any magnitude that army can never be
formidable to the liberties of the people while there is a large body
of citizens, little if at all inferior to them in discipline and the
use of arms, who stand ready to defend their rights and those of their
fellow citizens.55
In The Federalist No. 46, first published in the New York
Packet on January 29, 1788, James Madison contended that "the ultimate
authority...resides in the people alone." To a regular army of the
United States government "would be opposed a militia amounting to near
half a million citizens with arms in their hands." Alluding to "the
advantage of being armed, which the Americans possess over the people
of almost every other nation,"56 Madison continued: "Notwithstanding
the military establishments in the several kingdoms of Europe, which
are carried as far as the public resources will bear, the governments
are afraid to trust the people with arms."57
Madison sent a copy of the above to Tench Coxe, who found them "very valuable papers" and used the ideas in his own writings.58 Coxe responded to the "Dissent of the Minority" in Pennsylvania as follows:
The power of the sword, say the minority of Pennsylvania, is in the
hands of Congress. My friends and countrymen, it is not so, for THE
POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM
SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia.
Their swords, and every other terrible implement of the soldier, are
the birth-right of an American....[T]he unlimited power of the sword
is not in the hands of either the federal or state governments, but,
where I trust in God it will ever remain, in the hands of the
people.59
C. Samuel Adams' Proposal at the Massachusetts Convention
The demand for a bill of rights reached a high pitch in
Massachusetts before the ink on the proposed Constitution had time to
dry. A "ships's news" satire poking fun at various bill of rights
proposals had this to say about the right to keep and bear arms: "It
was absolutely necessary to carry arms for fear of pirates, & c.
and...their arms were all stamped with peace, that they were never to
be used but in case of hostile attack, that it was in the law of
nature to every man to defend himself, and unlawful for any man to
deprive him of those weapons of self defence."60
Antifederalist John DeWitt published a series in Boston in
late 1787 which articulated the position against the Constitution. The
following appeared in the American Herald on December 3: "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."61
Dewitt predicted that Congress "at their pleasure may arm or
disarm all or any part of the freemen of the United States, so that
when their army is sufficiently numerous, they may put it out of the
power of the freemen militia of America to assert and defend their
liberties ...."62
In the Massachusetts ratifying convention, William Symmes
warned that the new government at some point "shall be too firmly
fixed in the saddle to be overthrown by any thing but a general
insurrection."63 Yet fears of standing armies were groundless,
affirmed Theodore Sedwick, who queried, "if raised, whether they could
subdue a nation of freemen, who know how to prize liberty, and who
have arms in their hands?"64
Samuel Adams, the most prolific proponent of the individual right to keep and bear arms in the pre-Revolutionary era,65 introduced the following amendments in the convention:
And that the said Constitution be never construed to authorize
Congress to infringe the just liberty of the press, or the rights of
conscience; or to prevent the people of the United States, who are
peaceable citizens, from keeping their own arms; or to raise standing
armies, unless when necessary for the defence of the United States, or
of some one or more of them; or to prevent the people from
petitioning, in a peaceable and orderly manner, the federal
legislature, for a redress of grievances; or to subject the people to
unreasonable searches and seizures of their persons, papers or
possessions.66
It is noteworthy that the declaration stressed the "keeping" of arms, a favorite theme of Samuel Adams and the other founding fathers of Massachusetts, which experienced the most dramatic arms seizures by the British before the Revolution.67 However, the right to keep arms extended only to "peaceable citizens," not to criminals.
The federalist majority in the convention prevented passage of
Adams' proposals. An antifederalist explained:
It was his misfortune to have been misconceived, and the proposition
was accordingly withdrawn_lest the business of the convention [the
session of which was then drawing to a period] might be unexpectedly
protracted. His enemies triumphed exceedingly, and asserted to
represent his proposal as not only an artful attempt to prevent the
constitution being adopted in this state but as an unnecessary and
improper alteration of a system, which did not admit of
improvements.68
The Massachusetts convention ratified the constitution on February 7, 1788 without demanding a declaration of rights.
Nonetheless, other than the standing army provision, Adams' proposal
would be seen as embodying the First, Second, and Fourth Amendments to
the Constitution when they were being considered by Congress in
1789.69
D. "Congress Shall Never Disarm Any Citizen": The New
Hampshire Demands
When it ratified the Constitution on June 21, 1788, the New Hampshire convention became the first in which a majority voted to recommend a bill of rights, albeit a brief one. The recommended amendments concerning individual rights, which would be reflected in the First, Second, and Third Amendments, were as follows:
X. That no standing army shall be kept up in time of peace, unless with the consent of three fourths of the members of each branch of Congress; nor shall soldiers in a time of peace, be quartered upon private houses without the consent of the owners.
XI. Congress shall make no laws touching religion or to infringe the rights of conscience.
XII. Congress shall never disarm any citizen, unless such as are or
have been in actual rebellion.70
The prohibitions on Congress would be absolute_"Congress shall
make no laws" on religion and "shall never disarm any citizen"_except
that "actual" insurgents could be disarmed. The exception was prompted
by Shay's Rebellion in Massachusetts and the smaller Exeter, New
Hampshire riot of 1786.71
One federalist writer set forth an interesting analysis of the
New Hampshire and Pennsylvania proposals. The Reverend Nicholas Collin
of Philadelphia published a series under the penname "A Foreign
Spectator" (from Sweden) entitled "Remarks on the Amendments to the
Federal Constitutions" proposed by the state conventions. If the
Constitution contained "a scrupulous enumeration of all the rights of
the states and individuals, it would make a larger volume than the
Bible...."72 Further, an army was no danger "especially when I am well
armed myself." "While the people have property, arms in their hands,
and only a spark of noble spirit, the most corrupt Congress must be
mad to form any project of tyranny."73
Collin further held that "a good militia is the natural, easy,
powerful and honorable defense of a country."74 Identifying "a
citizen, as a militia man," he referred to "that noble art, by which
you can defend your life, liberty and property; your parents, wife and
children!"75
Collin then considered "those amendments which particularly concern several personal rights and liberties."76 Attacking a proposal that the privilege of habeas corpus should not be suspended for more than six months, he supported his position by referring to two of the proposed arms guarantees:
What is said on this matter, is a sufficient reply to the 12th amend. of the New-Hampshire convention, that congress shall never disarm any citizen, unless such as are or have been in actual rebellion. If, by the acknowledged necessity of suspending the privilege of habeas corpus, a suspected person may be secured, he may much more be disarmed. In such unhappy times it may be very expedient to disarm those, who cannot conveniently be guarded, or whose conduct has been less obnoxious. Indeed to prevent by such a gentle measure, crimes and misery, is at once justice to the nation, and mercy to deluded wretches, who may otherwise, by the instigation of a dark and bloody ringleader, commit many horrid murders, for which they must suffer digan punishments.
The minority of Pennsylvania seems to have been desirous of
limiting the federal power in these cases; but their conviction of its
necessity appears by those very parts of the 3rd and 7th amendments
framed in this view, to wit, that no man be deprived of his liberty
except by the law of the land, or the judgment of his peers_and that
no law shall be passed for disarming the people, or any of them,
unless for crimes committed, or real danger of public injury from
individuals. The occasional suspension of the above privilege [of
habeas corpus] becomes pro tempore the law of the land, and by virtue
of it dangerous persons are secured. Insurrections against the federal
government are undoubtedly real dangers of public injury, not only
from individuals, but great bodies; consequently the laws of the union
should be competent for the disarming of both.77
This is the only discussion in the ratification period of the limited power of Congress to disarm any person or group under the two proposed amendments. Since persons involved in an insurrection could be arrested, Collin reasoned, they could certainly also be disarmed. This argument reflected the experiences of the Revolution, in that a Tory who could be tarred and feathered could be disarmed first, and a Redcoat who could be shot could surrender his person and weapons instead. There is no hint in Collin's discussion that Congress could pass any law restricting firearms ownership by law-abiding citizens.
E. " Things So Clearly Out of the Power of Congress":
Debate in the Public Forum
Alexander White published a strong reply to the Pennsylvania "Dissent," which had generated opposition to the Constitution throughout several states, including Virginia. White timed publication of his article to precede the election of delegates to the Virginia ratifying convention, for which White was running.78 White regarded the objections of the Pennsylvania minority as bordering on the dishonest, for Congress clearly had no power over rights such as the private bearing of arms:
There are other things so clearly out of the power of Congress, that
the bare recital of them is sufficient, I mean the "rights of
conscience, or religious liberty_the rights of bearing arms for
defence, or for killing game_the liberty of fowling, hunting and
fishing ...." These things seem to have been inserted among their
objections, merely to induce the ignorant to believe that Congress
would have a power over such objects and to infer from their being
refused a place in the Constitution, their intention to exercise that
power to the oppression of the people.79
White proceeded to repeat the federalist dogma that a bill of rights would be dangerous, because it would suggest that Congress had power over any subject not explicitly listed in the bill of rights:
"But if they had been admitted as reservations out of the powers
granted to Congress, it would have opened a large field indeed for
legal construction: I know not an object of legislation which by a
parity of reason, might not be fairly determined within the
jurisdiction of Congress."80
Nonetheless, White recognized that abuse of a right could be penalized: "The freedom of speech and of the press, are likewise out of the jurisdiction of Congress._But, if by an abuse of that freedom I attempt to excite sedition in the Commonwealth, I may be punished ...."81 Similarly, Congress had no power over bearing arms for defense or hunting, but could punish armed sedition.
After publication of the above, White was elected as a
delegate to the Virginia convention,82 where he voted with Madison and
the other federalists to ratify the Constitution prior to
amendments.83
An antifederalist who published a proposed declaration of
rights in Virginia would have guaranteed a right to keep and bear arms
for "the people," but would have stated "the national defense" as the
objective of that right. Acting through Arthur Campbell in
Pennsylvania, the "Society of Western Gentlemen"84 proposed a
declaration with the following: "The people have a right to keep and
bear arms, for the national defense; standing armies in time of peace
are dangerous to liberty, therefore the military shall be subordinate
to the civil power."85
In a second series of Letters from the Federal Farmer, advertised in New York in early May 1788, Richard Henry Lee classified as "fundamental rights" the rights of free press, petition, and religion; the rights to speedy trial, trial by jury, confrontation of accusers and against self-incrimination; the right not to be subject to "unreasonable searches or seizures of his person, papers or effects"; and, in addition to the right to refuse quartering of soldiers, "the militia ought always to be armed and disciplined, and the usual defense of the country...."86 Since these rights were to be recognized in the Bill of Rights, Lee's concept of the militia warrants further examination:
A militia, when properly formed, are in fact the people themselves,
and render regular troops in a great measure unnecessary....[T]he
constitution ought to secure a genuine [militia] and guard against a
select militia, by providing that the militia shall always be kept
well organized, armed, and disciplined, and include...all men capable
of bearing arms; and that all regulations tending to render this
general militia useless and defenceless, by establishing select corps
of militia, or distinct bodies of military men, not having permanent
interests and attachments in the community to be avoided.87
Thus, Lee feared that Congress, through its "power to provide for organizing, arming, and disciplining the militia" under Article I, paragraph 8 of the proposed Constitution, would establish a "select militia" apart from the people that would be used as an instrument of domination by the federal government. The contemporary argument that it is impractical to view the militia as the whole body of the people, and that the militia consists of the select corps now known as the National Guard, also existed during Lee's time. He refuted it in these terms:
But, say gentlemen, the general militia are for the most part employed
at home in their private concerns, cannot well be called out, or be
depended upon; that we must have a select militia; that is, as I
understand it, particular corps or bodies of young men, and of men who
have but little to do at home, particularly armed and disciplined in
some measure, at the public expense, and always ready to take the
field. These corps, not much unlike regular troops, will ever produce
an inattention to the general militia; and the consequence has ever
been, and always must be, that the substantial men, having families
and property, will generally be without arms, without knowing the use
of them, and defenseless; whereas, to preserve liberty, it is
essential that the whole body of the people always possess arms, and
be taught alike, especially when young, how to use them; nor does it
follow from this, that all promiscuously must go into actual service
on every occasion. The mind that aims at a select militia, must be
influenced by a truly anti-republican principle; and when we see many
men disposed to practice upon it, whenever they can prevail, no wonder
true republicans are for carefully guarding against it.88
Lee's view that a well-regulated militia was the armed populace rather than a select group, or "Prussian militia,"89was reiterated by many others. "Aristocratis" feared that the active militia would "quell insurrections that may arise in any parts of the empire on account of pretensions to support liberty, redress grievances, and the like."90 "The second class or inactive militia, comprehends all the rest of the peasants; viz., the farmers, mechanics, labourers, & c. which good policy will prompt government to disarm. It would be dangerous to trust such a rabble as this with arms in their hands."91 "M. T. Cicero" wrote to "The Citizens of America":
Whenever, therefore, the profession of arms becomes a distinct order in the state... the end of the social compact is defeated....
No free government was ever founded, or ever preserved its liberty,
without uniting the characters of the citizen and soldier in those
destined for the defence of the state....Such are a well regulated
militia, composed of the freeholders, citizen and husbandman, who take
up arms to preserve their property, as individuals, and their rights
as freemen.92
F. "That Every Man Be Armed":
The Virginia Convention
Lee's antifederalist colleagues in Virginia, Patrick Henry and George Mason, would effectively argue the above positions in that state's ratifying convention. The result would be an irresistible push for what became the Second Amendment and the rest of the Bill of Rights.
Apparently before the convention began, the Virginia antifederalists had already drafted a declaration of rights which the convention would later adopt nearly verbatim. Its apparent author was George Mason, who merely added to the Virginia Declaration of Rights of 1776, which he also authored.
In one draft in Mason's handwriting, the following language appears: "That the people have a Right to mass & to bear arms; that a well regulated militia, composed of the Body of the people, trained to Arms, is the proper natural and safe Defense of a free State...."93 A right to "mass" with arms and bear them recalled the revolutionary days when the armed multitudes would descend upon British colonial officials. This term would be dropped for the more conservative term "keep," which connotes the quiet storage and possession of arms in the home, and which prohibits governmental seizure of arms.
Just after the Virginia convention began, the Virginia antifederalists sent copies of a declaration to antifederalists in the New York convention. George Mason, chairman of a "Committee of Opposition," wrote to John Lamb, chairman of the Federal Republican Committee of New York, on June 9, 1788,94 enclosing another draft (in Mason's handwriting) of a proposed declaration of "the essential and unalienable Rights of the People."95 It included: "That the People have a Right to keep and to 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 free State...."96 William Grayson and Patrick Henry also wrote letters dated the same, enclosing the draft, to Lamb.97 As will be seen, the Virginia convention would adopt this language almost verbatim.
The Virginia ratifying convention met from June 2 through June 26, 1788. Edmund Pendleton, opponent of a bill of rights, weakly argued that abuse of power could be remedied by recalling the delegated powers in a convention.98 Patrick Henry shot back that the power to resist oppression rests upon the right to possess arms:
Guard with jealous attention the public liberty. Suspect every one who
approaches that jewel. Unfortunately, nothing will preserve it but
downright force. Whenever you give up that force, you are ruined.99
Henry sneered, "O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people!
Your arms, wherewith you could defend yourselves, are gone....Did you
ever read of any revolution in a nation...inflicted by those who had
no power at all?"100
Since the Constitution had not been tested, Henry's arguments
cannot be considered mere exaggerations. He queried, "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."101 Quoting the militia
clause of the Constitution, Henry continued: "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."102
James Madison responded that the militia provision was "an
additional security to our liberty, without diminishing the power of
states in any considerable degree....Congress ought to have the power
to establish a uniform discipline throughout the states, and to
provide for the execution of the laws, suppress insurrections, and
repeal invasions: these are the only cases wherein they can interfere
with the militia ...."103
In response to a suggestion that the militia would be made into an instrument of tyranny, Frances Corbin asked: "Who are the militia? Are we not militia? Shall we fight against ourselves?"104 The federalist line was clear: an armed populace had no need of a written bill of rights.
Patrick Henry objected to the provision in Clause 17 for federal arms magazines in each state:
Are we at last brought to such an humiliating and debasing degradation, that we cannot be trusted with arms for our own defense?
Where is the difference between having our arms in our own possession
and under our own direction, and having them under the management of
Congress. If our defence be the real object of having those arms, in
whose hands can they be trusted with more propriety, or equal safety
to us, as in our own hands?105
Similarly, Henry reiterated his objections to the militia
clause: "We have not one fourth of the arms that would be sufficient
to defend ourselves. The power of arming the militia, and the means of
purchasing arms, are taken from the states by the paramount power of
Congress. If Congress will not arm them, they will not be armed at
all."106
John Randolph denied that the federal power was exclusive of the states. "Should Congress neglect to arm or discipline the militia, the states are fully possessed of the power of doing it; for they are restrained from it by no part of the Constitution."107 As will be seen, the convention would demand explicit recognition of this in an amendment to the Constitution.
George Mason agreed with Henry. Attacking the idea of a standing army, Mason argued: "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 pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them ...."108 "When, against a regular and disciplined army, yeomanry are the only defense,_yeomanry, unskillful and unarmed,_what chance is there for preserving freedom?"109 Mason recalled:
Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] 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. If they
neglect to arm them, and prescribe proper discipline, they will be of
no use....I wish that, in case the general government should neglect
to arm and discipline the militia, there should be an express
declaration that the state governments might arm and discipline
them.110
Mason undoubtedly quoted from a page of Sir William Keith's Collection of Papers and Other Tracts published in London in 1740. Colonial Pennsylvania Governor Keith violated every tenet of the whig-republican philosophy which so influenced the Americans with the following words:
A Militia in an arbitrary and tyrannical Government may possibly be of
some Service to the governing Power; but we learn from Experience,
that in a free Country it is of little use. The People in the
Plantations are so few in Proportion to the Lands they Possess, that
Servants being scarce, and Slaves so exceedingly dear, the men are
generally under a Necessity to work hard themselves, in order to
provide the common Necessaries of Life for their Families; so that
they cannot spare a Day's Time without great Loss to their Interest;
wherefore a Militia there would become more burdensome to the poor
People, than it can be in any Part of Europe. Besides, it may be
question'd how far it would be consistent with good Policy, to
accustom all the able Men in the Colonies to be well exercised in
Arms; it seems at present to be more advisable, to keep up a small
regular Force in each Province, which on Occasion might be readily
augmented; so that in Case of a War, or Rebellion, the whole of the
regular Troops on the Continent, might without Loss of Time be united
or distributed at Pleasure....111
Keith's fear of "accustom[ing] all the able Men in the
Colonies to be well exercised in Arms" was directly related to his
fear of "rebellion." He was the apologist of colonial imperialism par
excellence, holding that "Every Act of a dependant Provincial
Government therefore ought to terminate in the Advantage of the Mother
State"112 and that none of the colonies "can with any Reason or good
Sense pretend to claim an absolute legislative Power within
themselves...."113
While Mason may not have referred to it in the above speech,
in a 1767 publication Keith advocated resort to the stamp tax in order
to support a "Body of Regular Troops" under the control of the Crown
and independent of the colonial governors,114 and as if that addition
of insult to injury was not enough, referred to the "loose,
disorderly, and insignificant Militia."115 One purpose of the standing
army would be conquest against the Indians for purposes of economic
expansion.116
Mason had also made such arguments outside the convention. On May 26, Mason wrote to Thomas Jefferson:
There are many other things very objectionable in the proposed new
Constitution; particularly the almost unlimited Authority over the
Militia of the several States; whereby, under Colour of regulating,
they may disarm, or render useless the Militia, the more easily to
govern by a standing Army; or they may harass the Militia, by such
rigid Regulations, and intolerable Burdens, as to make the People
themselves desire it's Abolition.117
James Madison countered Mason's arguments and quotations from
Keith with the assertion that the federal and state governments were
"coequal sovereignties," adding: "I cannot conceive that this
Constitution, by giving the general government the power of the arming
the militia, takes it away from the state governments. The power is
concurrent, not exclusive."118
Henry again denied that the power was concurrent, and in a single argument asserted both the individual right to have arms and the state power to encourage a militia consisting of the armed populace:
May we not discipline and arm them, as well as Congress, if the power
be concurrent? So that our militia shall have two sets of arms, double
sets of regimentals, & c.; and thus, at a very great cost, we shall be
doubly armed. The great object is, that every man be armed. But can
the people afford to pay for double sets of arms, & c.? Every one who
is able may have a gun. But we have learned, by experience, that,
necessary as it is to have arms, and though our Assembly has, by a
succession of laws for many years, endeavored to have the militia
completely armed, it is still far from being the case. When this power
is given up to Congress without limitation or bounds, how will your
militia be armed? You trust to chance; for sure I am that nation which
shall trust its liberties in other hands cannot long exist. If
gentlemen are serious when they suppose a concurrent power, where can
be the impolicy to amend it? Or, in other words, to say that Congress
shall not arm or discipline them, till the states shall have refused
or neglected to do it?119
Again the federalists countered, with George Nicholas articulating more precisely why the militia power was not exclusive:
But it is said, the militia are to be disarmed. Will they be worse
armed than they are now? Still, as my honorable friend said, the
states would have power to arm them. The power of arming them is
concurrent between the general and state governments; for the power of
arming them rested in the state governments before; and although the
power be given to the general government, yet it is not given
exclusively; for, in every instance where the Constitution intends
that the general government shall exercise any power exclusively of
the state governments, words of exclusion are particularly
inserted....It is, therefore, not an absurdity to say, that Virginia
may arm the militia, should Congress neglect to arm them after
Congress had armed them, when it would be unnecessary ....120
While not applied specifically to the right to have arms, the requirement that a license be obtained before exercise of a right was deemed to be infringement. George Nicholas argued: "The liberty of the press is secured....In the time of King William, there passed an act for licensing the press. That was repealed....The people... will not consent to pass an act to infringe it...."121 The term "infringe" would, of course, be used in the Second Amendment.
William Grayson reasserted the exclusive power interpretation,
warning that the militia "might be armed in one part of the Union, and
totally neglected in another." He pointed out that England had an
excellent militia law for itself, entailing "thirty thousand select
militia," but neglected the militia of Scotland and Ireland.122
John Marshall examined in detail the reasons why all powers not exclusively delegated are retained, illustrating his point by reference to Article I, Section 10 of the Constitution, which provides that "no state shall engage in war" unless invaded.123 He continued:
But the worthy member fears, that in one part of the Union they will be regulated and disciplined, and in another neglected. This danger is enhanced by leaving this power to each state; for some states may attend to their militia, and others may neglect them. If Congress neglect our militia we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into hands of her militia-men?
He then concluded by observing, that the power of governing
the militia was not vested in the states by implication, because,
being possessed of it antecedent to the adoption of the government,
and not being divested of it by any grant or restriction in the
Constitution, they must necessarily be as fully possessed of it as
ever they had been.124
George Mason returned to the earlier remark by Francis Corbin, concerning "who are the militia, if they be not the people of this country... ? I ask, Who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor ...."125 The republican militia was the armed populace at large; to be avoided was a select militia or standing army.
In response, Nicholas detected a contradiction in the antifederalists, in that Grayson objected because there would be no select militia, while Mason objected that there would be. Mason replied that Grayson "had mentioned the propriety of having select militia, like those of Great Britain, who should be more thoroughly exercised than the militia at large could possibly be. But he, himself, had not spoken of a selection of militia, but of the exemption of the highest classes of the people from militia services ...."126 Grayson agreed, opining that "a well-regulated militia ought to be the defence of this country. In some of our constitutions it is said so."127 Article XIII of the Virginia Declaration of Rights, authored by George Mason, defined such a militia as "the body of the people, trained to arms."
Edmund Pendleton, president of the convention, got in the last
word on the power of the state to have a militia. "The power of the
general government to provide for arming and organizing the militia is
to introduce a uniform system of discipline to pervade the United
States of America....[T]hough Congress may provide for arming them,...
there is nothing to preclude [the states] from arming and disciplining
them, should Congress neglect to do it."128
Similarly, the final word on the individual right to have arms
was by Zachariah Johnson, who argued that the new Constitution could
never result in religious persecution or other oppression because "the
people are not to be disarmed of their weapons. They are left in full
possession of them."129
The Virginia convention resolved the above and other disputed
provisions by ratifying the Constitution on June 25, 1788, subject to
the stipulation that "every power, not granted thereby, remains with
[the people of the United States], and at their will ...."130 On June
27, the convention recommended passage of a bill of rights and other
amendments drafted by a committee (appointed two days before) which
included Henry, Randolph, Mason, Nicholas, Grayson, Madison, John
Marshall, and others.131
The recommended bill of rights asserting "the essential and
unalienable rights of the people"132 included the following: "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 free state; that standing
armies, in time of peace, are dangerous to liberty, and therefore
ought to be avoided, as far as the circumstances and protection of the
community will admit; and that, in all cases, the military should be
under strict subordination to, and governed by, the civil power."133
George Mason simply added the first clause_the right to bear arms_to
the rest of the provision he had drafted for the Virginia Declaration
of Rights of 1776.134 As noted, Mason, Henry, and Grayson had sent
copies of a declaration with essentially the same language to New York
antifederalists at the beginning of the Virginia convention.135
The Virginia convention recommended an entirely different set of amendments to the text of the Constitution, including the provision: "That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."136 This language was almost verbatim with that proposed by the Harrisburg Convention in Pennsylvania.137 It did not appear in the draft declaration Mason had authored before the convention. As will be seen, this and the other amendments clarifying the federal-state relationship would later fail in Congress altogether. Even so, the essence of some of these proposals would be ratified in the more general Tenth Amendment.
G. The New York Convention
The New York convention was preceded by serious antifederalist
agitation. One "Common Sense" noted "that the chief power will be in
the Congress, and that what is to be left of our government is plain,
because a citizen may be deprived of the privilege of keeping arms for
his own defence, he may have his property taken without a trial by
jury ...."138
As noted, George Mason and other Virginia antifederalists sent
letters and a draft declaration of rights to the New York
antifederalists. Antifederalist newspaper editor Eleazer Oswald
personally carried and delivered this correspondence to John Lamb,
chairman of the Federal Republican Committee, on June 21. New York
Governor George Clinton, also President of the New York convention,
gave copies of the letters to a Special Committee of
Correspondence.139
Robert Yates, chairman of the Special Committee, wrote to George Mason on June 21, thanking him for the proposed amendments, and enclosing a draft agreed to by many of the New York convention delegates.140 While this draft has not been located, the New York convention would adopt the Virginia language with a slight change in the militia clause.
Following Virginia by one month, New York ratified the
Constitution on July 26, 1788. The convention predicated its
ratification on the following interconnected propositions: "That the
powers of government may be reassumed by the people whensoever it
shall become necessary to their happiness....That the people have a
right to keep and bear arms; that a well regulated militia, including
the body of the people capable of bearing arms, is the proper,
natural, and safe defence of a free state."141
Explicit in this language are the two independent declarations
that individuals have a right to be armed and that the militia is the
armed people. The convention declared "that the rights aforesaid
cannot be abridged or violated ...."142
New York also adopted an entirely separate list of amendments
concerning the structure of government. While not including a state
militia power like that of Virginia, the convention suggested the
following: "That the militia of any state shall not be compelled to
serve without the limits of the state, for a longer term than six
weeks, without the consent of the legislature thereof."143
H. The North Carolina Convention
On August 1, 1788, the North Carolina convention demanded the
adoption of a declaration of rights securing "the unalienable rights
of the people" and of other amendments concerning governmental powers
before it would ratify the Constitution.144 Among the various rights
antifederalists anticipated could be infringed was the right to have
arms. Equating the militia with the people at large, William Lenoir
argued that Congress "could disarm the militia. If they were armed,
they would be a resource against great oppressions....If the laws of
the Union were oppressive, they could not carry them into effect, if
the people were possessed of proper means of defence."145
The declaration of rights included the following taken from
Virginia's proposals:
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 free state; that
standing armies, in time of peace, are dangerous to liberty, and
therefore ought to be avoided, as far as the circumstances and
protection of the community will admit; and that, in all cases, the
military should be under strict subordination to, and governed by, the
civil power.146
A separate body of amendments dealt exclusively with the powers of the state and federal governments. Like the Harrisburg and Virginia conventions, the North Carolina convention proposed:
That each state respectively shall have the power to provide for
organizing, arming, and disciplining its 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 United States, shall be subject only to such
fines, penalties, and punishments, as shall be directed or inflicted
by the laws of its own state.147
North Carolina refused to ratify the Constitution until November 21, 1789, several weeks after Congress passed the Bill of Rights and proposed it to the states.
I. The Armed Populace: Philosophical and Pre-Revolutionary
Influences
While federalists and antifederalists differed on the need for a paper declaration, they were unified on the concept that an armed populace is necessary for a free state. As the ratification struggle ensued, prominent authors recalled philosophical influences and pre-Revolutionary experiences which linked the disarming of the people with oppression.
During 1787-1788, John Adams published his Defense of the Constitutions of Government of the United States of America, which became well known in the States and in Europe. Adams relied on classical sources, in the context of an analysis of quotations from Marchamont Nedham's The Right Constitution of a Commonwealth (1656), to vindicate a militia of all the people: "That the people be continually trained up in the exercise of arms, and the militia lodged only in the people's hands, or that part of them which are most firm to the interest of liberty, that so the power may rest fully in the disposition of their supreme assemblies." The limitation to "That part most firm to the interest of liberty," was inserted here, no doubt, to reserve the right of disarming all the friends of Charles Stuart, the nobles and bishops. Without stopping to inquire into the justice, policy, or necessity of this, the rule in general is excellent....One consequence was, according to [Nedham], "that nothing could at any time be imposed upon the people but by their consent....As Aristotle tells us, in his fourth book of Politics, the Grecian states ever had special care to place the use of and exercise of arms in the people, because the commonwealth is theirs who hold the arms; the sword and sovereignty ever walk hand in hand together." This is perfectly just.
"Rome, and the territories about it, were trained up perpetually in
arms, and the whole commonwealth, by this means, became one formal
militia."148
After agreeing that all the continental European states
achieved absolutism by following the Caesarian precedent of erecting
"praetorian bands, instead of a public militia,"149 the aristocratic
Adams recognized the individual right to use arms for personal
protection but looked askance at the kind of armed protest exemplified
in Shays' Rebellion: "To suppose arms in the hands of citizens, to be
used at individual discretion, except in private self-defence, or by
partial orders of towns...is a dissolution of the government."150
For the more radical Thomas Jefferson, individual discretion was acceptable in the use of arms not simply for private but for public defense as well. Writing in 1787, Jefferson stressed the inexorable connection between the right to have and use arms and the right to revolution as follows:
God forbid we should ever be twenty years without such a
rebellion....And what country can preserve its liberties, if its
rulers are not warned from time to time, that this people preserve the
spirit of resistance? Let them take arms....The tree of liberty must
be refreshed from time to time, with the blood of patriots and
tyrants.151
In 1789, Dr. David Ramsay published his History of the
American Revolution. A prominent federalist, Ramsay wrote this work
while he was a member of the Continental Congress in the 1780s.152 He
also served as a delegate to the South Carolina ratification
convention in 1788. Madison had served with Ramsey in the Continental
Congress, and was aware of the book.153
Ramsey's account of grievances leading to the Revolution was apropos, because bills of rights were then being drafted to prevent a recurrence of infringements on rights such as keeping and bearing arms. Ramsey recalled General Gage's disarming of the inhabitants of Boston just after Lexington and Concord in 1775, the most significant infringement which would destine the Second Amendment's recognition of the right to "keep" arms, as follows:
To prevent the people within Boston from co-operating with their countrymen without in case of an assault which was now daily expected, General Gage agreed with a committee of the town, that upon the inhabitants lodging their arms in Faneuil-hall or any other convenient place, under the care of the selectmen, all such inhabitants as were inclined, might depart from the town, with their families and effects.
In five days after the ratification of this agreement, the inhabitants
had lodged 1778 fire arms, 634 pistols, 273 bayonets and 38
blunderbusses. The agreement was well observed in the beginning, but
after a short time obstructions were thrown in the way of its final
completion, on the plea that persons who went from Boston to bring in
the goods of those who chose to continue within the town, were not
properly treated. Congress remonstrated on the infraction of the
agreement, but without effect.154
Specifically, in the Declaration of Causes of Taking Up Arms of 1775, the continental Congress decried Gage's seizure of the arms that had been surrendered with the assurances that the arms would be kept only temporarily by the selectmen, and that the inhabitants would be allowed to depart from Boston.155 Ramsey listed the specific types of arms seized_firearms (i.e. muskets and other long-barreled shoulder arms), pistols, bayonets, and blunderbusses, which are short-barreled shotguns.
It would be naive to believe that the inhabitants did not keep a substantial number of their arms. Ramsay noted Gage's skepticism as follows:
The select-men gave repeated assurances that the inhabitants had
delivered up their arms, but as a cover for violating the agreement,
general Gage issued a proclamation, in which he asserted that he had
full proof to the contrary. A few might have secreted some favorite
arms, but nearly all the training arms were delivered up.156
Evidently, the American tradition of civil disobedience to firearms prohibitions was well entrenched by 1775.
Ramsay also recalled King George's 1774 ban on importation of firearms into the colonies. "The provincials laboured under great inconveniences from the want of arms and ammunition. Very early in the contest, the king of Great-Britain, by proclamation, forbad the exportation of warlike forces to the colonies."157 This infringement on the right to keep arms was circumvented by domestic manufacture and smuggling.
Ramsay extolled the Americans' superiority in the bearing and
use of arms. "All their military regulations were carried on by their
militia, and under the old established laws of the land. For the
defence of the colonies, the inhabitants had been, from their early
years, enrolled in companies, and taught the use of arms."158 Ramsey
noted: "Europeans, from their being generally unacquainted with fire
arms are less easily taught the use of them than Americans, who are
from their youth familiar with these instruments of war ...."159
Ramsay pointed out the close connection between a nation of
hunters and target shooters and a well regulated militia. Of the
Battle of Bunker Hill, he wrote: "None of the provincials in this
engagement were riflemen, but they were all good marksmen. The whole
of their previous military knowledge had been derived, from hunting,
and the ordinary amusements of sportsmen. The dexterity which by long
habit they had acquired in hitting beasts, birds, and marks, was
fatally applied to the destruction of British officers."160
Due to the shortage of gunpowder, the Revolutionary leaders encouraged preservation of the article only for overthrow of tyranny.
"The public rulers in Massachusetts issued a recommendation to the
inhabitants, not to fire a gun at beast, bird or mark, in order that
they might husband their little stock for the more necessary purpose
of shooting men."161 But Ramsay remembered the difficulty of
regimenting armed free thinkers: "The husbandmen who flew to arms were
active, zealous, and of unquestionable courage, but to introduce
discipline and subordination, among free men who were habituated to
think for themselves, was an arduous labour."162
Ramsay aptly captured the Americans' perception of themselves in 1789 as free people who were entitled to speak their minds and to keep and bear arms. His account of British infringements on these rights must have been considered most timely by the architects and craftsmen of what became the Bill of Rights.
III. THE ADOPTION OF THE BILL OF RIGHTS
A. Madison's Proposed Amendments
In the first federal elections under the new Constitution, James Madison ran for a seat in the new House of Representatives against James Monroe, who championed the antifederalist cause.
Departing from previous federalist positions, Madison championed a
bill of rights, and won the election.163
In what is thought to be a speech he drafted to deliver to the House had he won the election, Monroe advocated a declaration of rights, stating:
The following appears to be the most important objects of such an
instrument. It should more especially comprise a doctrine in favor of
the equality of human rights; of the liberty of conscience in matters
of religious faith, of speech and of the press; of the trial by jury
of the vicinage in civil and criminal cases; of the benefit of the
writ of habeas corpus; of the right to keep and bear arms....If these
rights are well defined, and secured against encroachment, it is
impossible that government should ever degenerate into tyranny.164
As fate would have it, Madison would give a similar speech.
Madison had been keeping a scrapbook of newspaper clippings from
around the country of proposed amendments, including those from the
state conventions.165 In his notes for a speech introducing what
became the Bill of Rights, Madison wrote: "They [the proposed
amendments] relate first to private rights_fallacy on both
sides-espec[iall]y as to English Decl[aratio]n. of Rights_1. mere act
of parl[iamen]t. 2. no freedom of press_Conscience... attainders_arms
to protest[an]ts."166
Thus, Madison stated that the rights he would propose, such as
freedom of the press and keeping and bearing arms, were "private
rights." The "fallacy" as to the English Declaration of Rights was
that it was a "mere act of Parliament" which Parliament itself could
repeal; by contrast, the American bill of rights would not, as part of
the Constitution, be subject to repeal by Congress. Moreover, the
English Declaration either omitted or unreasonably limited fundamental
rights. Freedom of the press was not recognized at all, and the right
to keep and bear arms was limited to Protestants and further limited
by class: "That the Subjects which are Protestants, may have Arms for
their Defence suitable to their Condition, and as are allowed by
Law."167
On June 8, 1789, in the House of Representatives, James Madison proposed his long-awaited bill of rights. Madison's draft contained both philosophical declarations and substantive restrictions. First, the Constitution would contain a new preamble with fundamental principles from the Virginia Declaration of Rights:
"all power is originally vested in, and consequently derived from the people"; "government is instituted... for the benefit of the people"; and "the people have an indubitable, unalienable, and indefeasible right to reform or change their government ...."168 The ultimate power is in the people, who would thereby have the right to be armed.
Madison then proposed that the text of the Constitution be
amended to limit the powers of Congress. Civil rights could not be
abridged on account of religious belief, no national religion could be
established, and the rights of conscience could not be "in any manner,
or on any pretext infringed."169 "The people shall not be deprived or
abridged of their right to speak," and a free press, "as one of the
great bulwarks of liberty," would be inviolable.170 "The people shall
not be restrained from peaceably assembling and consulting for their
common good," and petitioning the legislature for redress of
grievances.171 The next guarantee referred to the same entity with
rights_"the people"_and interposed a philosophical declaration between
two restrictions: "The right of the people to keep and bear arms shall
not be infringed; a well armed, and well regulated militia being the
best security of a free country: but no person religiously scrupulous
of bearing arms shall be compelled to render military service in
person."172
This provision, which became the Second Amendment, began with
a substantive guarantee in the nature of a command that the individual
right to keep and bear arms shall not be infringed. Just as "keeping"
arms referred to possession of arms by an individual, the terms "bear
arms" meant simply to carry arms. Previously, Madison had sponsored a
bill in the Virginia legislature under which a person who hunted deer
illegally would be on probation for a year and could not "bear a gun
out of his inclosed ground, unless whilst performing military
duty...."173 The violator could bear a pistol, but not a shoulder arm
except for militia duty.174
After the above command that the right shall not be infringed, Madison's proposal made the philosophical declaration that a well armed and regulated militia is the best security of a free country. This declaration did not limit the right, but gave the chief political reason for guaranteeing the right against governmental infringement. Keeping and bearing arms would be protected for all lawful purposes, but self-defense, hunting, shooting at the mark (i.e., target shooting), and other nonpolitical purposes had no place in a federal Constitution which delegated no power to regulate these activities. Since Congress could raise and support armies, the superiority of the militia in securing a "free" country must be declared. For the same reason, conscientious objectors could not be forced to bear arms in military service.
In contrast with the above substantive guarantees, most of the remainder of Madison's resolutions related to procedural guarantees such as double jeopardy, search and seizure, and other criminal matters. A longer version of what became the Ninth Amendment concluded the limitations on the power of Congress:
The exceptions here or elsewhere in the constitution, made in favor of
particular rights, shall not be so construed as to diminish the just
importance of other rights retained by the people; or as to enlarge
the powers delegated by the constitution; but either as actual
limitations of such powers, or as inserted merely for greater
caution.175
To the existing prohibitions on state action, Madison would have provided that no state shall "violate" the equal rights of conscience or a free press.176 An amendment to the judiciary provisions of the Constitution would have asserted that in common law suits, "the trial by jury as one of the best securities to the rights of the people, ought to remain inviolate."177 Like the "well-regulated-militia" declaration to the arms guarantee, this philosophical statement about "one of the best securities" of the peoples' rights was never intended as a limitation on the guarantee.
Toward the end of the Constitution, Madison would have
inserted a version of what became the Tenth Amendment, absent
recognition of power in "the people": "The powers not delegated by
this constitution, nor prohibited by it to the states, are reserved to
the states respectively."178
Throughout, Madison utilized consistent word choice:
governments have "powers," while only "the people" as individuals have "rights," albeit the people also have "powers."179 At no point did Madison suggest that any of the bill of rights provisions were intended to protect state powers from federal intrusions, that "the people" really meant the state governments, that a state government had "rights" instead of "powers," or that the term "infringe" applied to anything other than governmental violation of individual rights.
Madison conceptualized the rights he sought to guarantee as follows:
The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States, as well as the federal constitution, we shall find that although some of them are rather unimportant yet, upon the whole, they will have a salutary tendency....
In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify those positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring that the legislative, executive, and judicial branches shall be kept separate and distinct....
But whatever may be the form which the several States have adopted in
making declarations in favor of particular rights, the great object in
view is to limit and qualify the powers of Government, by excepting
out of the grant of power those cases in which the Government ought
not to act, or to act only in a particular mode.180
According to the above analysis, the press, arms and similar substantive guarantees would be "rights which are retained" and among "the pre-existent rights of nature." These are the areas in which the Government "ought not to act." Jury trial and other procedural rights start from the social compact. They specify that the government must "act only in a particular mode."
The bill of rights was conceived to deny exercise of power whether by direct infringement or indirectly through exercise of a delegated power. Opponents of a bill of rights pointed only to the lack of an explicit power over any of the proposed guarantees. For instance, Congressman James Jackson of Georgia argued: "The gentleman endeavors to secure the liberty of the press; pray how is this in danger? There is no power given Congress to regulate this subject as they can commerce, or peace, or war."181 Madison answered such arguments as follows:
The General Government has a right to pass all laws which shall be
necessary to collect its revenue; the means for enforcing the
collection are within the direction of the Legislature: may not
general warrants be considered necessary for the purpose, as well as
for some purposes which it was supposed at the framing of their
constitutions the State Governments had in view? If there was reason
for restraining the State Governments from exercising this power,
there is like reason for restraining the Federal Government.182
In other words, Congress has no delegated power to abridge freedom of the press or to infringe on the right to keep and bear arms. Nor may Congress exercise one of its delegated powers, such as taxation or regulation of commerce, in such way as to infringe on the right to posses arms or to violate the right against unreasonable search and seizure.
While he followed the recommendations of several state conventions that a declaration of rights be adopted, Madison did not offer extensive amendments concerning the structure of government. One such amendment Madison neglected was the power of the states to organize militias.
Madison's colleagues clearly understood the arms guarantee to
be protective of individual rights. Representative Fisher Ames of
Massachusetts wrote: "Mr. Madison has introduced his long expected
amendments....It contains a bill of rights... the right of the people
to bear arms."183 Ames wrote to another correspondent: "The rights of
conscience, of bearing arms, of changing the government, are declared
to be inherent in the people."184 Senator William Grayson of Virginia
informed Patrick Henry: "Last Monday a string of amendments were
presented to the lower House; these altogether respected personal
liberty ...."185 After reading the amendments which Madison sent him,
Joseph Jones wrote to Madison that "they are calculated to secure the
personal rights of the people ...."186
Ten days after the Bill of Rights was proposed in the House, Tench Coxe published his "Remarks on the First Part of the Amendments to the Federal Constitution," under the pen name "A Pennsylvanian," in the Philadelphia Federal Gazette.187 Probably the most complete exposition of the Bill of Rights to be published during its ratification period, the "Remarks" included the following: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms." In short, what is now the Second Amendment was designed to guarantee the right of the people to have "their private arms" to prevent tyranny and to overpower an abusive standing army or select militia.
Coxe sent a copy of his article to Madison along with a letter
of the same date. "It has appeared to me that a few well tempered
observations on these propositions might have a good effect....It may
perhaps be of use in the present turn of the public opinions in New
York state that they should be republished there."188 Madison wrote
back, acknowledging "your favor of the 18th instant. The printed
remarks inclosed in it are already I find in the Gazettes here [New
York]." Madison endorsed Coxe's analysis_including that the amendment
protected the possession and use of "private arms"_ with the comment
that ratification of the amendments "will however be greatly favored
by explanatory strictures of a healing tendency, and is therefore
already indebted to the co-operation of your pen."189
Coxe's defense of the amendments was widely reprinted.190 A
search of the literature of the time reveals that no writer disputed
or contradicted Coxe's analysis that what became the Second Amendment
protected the right of the people to keep and bear "their private
arms." The only dispute was over whether a bill of rights was even
necessary to protect such fundamental rights. "One of the People"
replied to Coxe's article with a response called "On a Bill of
Rights," which held "the very idea of a bill of rights" to be "a
dishonorable one to freemen." "What should we think of a gentleman,
who upon hiring a waiting-man, should say to him 'my friend, please
take notice, before we come together, that I shall always claim the
liberty of eating when and what I please, of fishing and hunting upon
my own ground, of keeping as many horses and hounds as I can maintain,
and of speaking and writing any sentiments upon all subjects." As a
mere servant, the government had no power to interfere with individual
liberties in any manner without a specific delegation. "[A] master
reserves to himself...everything else which he has not committed to
the care of those servants."191
Samuel Nasson, a member of the Massachusetts ratification convention who voted against the Constitution, explained the common understanding of the arms guarantee in letter dated July 9 to Representative George Thatcher, a Federalist from that state:
I find that Amendments are once again on the Carpet. I hope that such may take place as will be for the Best Interest of the whole. A Bill of rights well secured that we the people may know how far we may Proceed in Every Department. Then there will be no Dispute Between the people and rulers in that may be secured the right to keep arms for Common and Extraordinary Occasions such as to secure ourselves against the wild Beast and also to amuse us by fowling and for our Defence against a Common Enemy. You know to learn the Use of arms is all that can Save us from a foreign foe that may attempt to subdue us, for if we keep up the Use of arms and become well acquainted with them, we Shall always be able to look them in the face that arise up against us. For it is impossible to Support a Standing army large Enough to Guard our Lengthy Sea Coast, and now Spare me on the subject of Standing armies in a time of Peace. They always were first or last the downfall of all free Governments. It was by their help Caesar made proud Rome Own a Tyrant and a Traitor for a Master.
Only think how fatal they were to the peace of this Country in 1770, what Confusion they Brought on the Fatal 5 of March [the Boston Massacre]. I think the remembrance of that Night is enough to make us Careful how we Introduce them in a free republican Government_I therefore hope they will be Discouraged, for I think the man that Enters as a Soldier in a time of peace only for a living is only a fit tool to enslave his fellows. For this purpose was a Standing Army first introduced in the World. Another that I hope will be Established in the bill is trials by Juries in all Causes Excepting where the parties agree to be without.192 (emphasis added).
The above is the only known correspondence from a constituent to a Congressman which explained the understanding of the proposal that became the Second Amendment. The right to keep arms exists for "common," i.e., ordinary, occasions and for "extraordinary" occasions, such as hunting beasts and fowl and protection from a common foe. The purpose was a citizenry with experience and knowledge in the use of arms which comes from regular possession of and practice with arms. Only an armed citizenry could prevent the oppression of a standing army.
B. Action by the House Select Committee
The House select committee to consider amendments appointed on
July 21, 1789, included John Vining of Delaware as chairman, Madison,
Roger Sherman of Connecticut, and a member from each of the other
states.193 Sherman formulated his own draft of proposed amendments to
the Constitution. Seven of the ten amendments in the Sherman draft
declared rights of the people, while three concerned the structure and
power of government. Sherman's rights guarantees were far more limited
than those of Madison: the draft included no declaration of the rights
of the people to keep and bear arms, against unreasonable search and
seizure, to counsel and to due process of law, and no mandate on
separation of church and state (hardly a surprise from a Connecticut
representative).194
As noted, Virginia and North Carolina proposed (1) a bill of rights, including a guarantee of the right of the people to keep and bear arms, with a declaration that a well regulated militia is necessary for a free state; and (2) a separate body of amendments relating to powers of Congress, including clarification that each state may provide for organizing and arming its own militia when Congress neglects to act. The Pennsylvania antifederalists_including the Dissent of the Minority and the Harrisburg Convention_also proposed an arms-right guarantee and a militia-power clarification. While the Sherman draft deleted the former, it included the latter in the following language:
The militia shall be under the government of the laws of the
respective states, when not in the actual service of the United States
but such rules as may be prescribed by Congress for their uniform
organization and discipline shall be observed in officering and
training them; but military service shall not be required of persons
religiously scrupulous of bearing arms.195
The last phrase concerning conscientious objectors had appeared in Madison's proposal guaranteeing the right of the people to keep and bear arms. Its placement in the Sherman draft with a state militia power was perhaps more logical, because it concerned not a "right" to bear arms, but an exemption from being "required" to bear arms in military service.
Although there is no record of the Select Committee's proceedings, Sherman's restrictive notions of freedom raised eyebrows.
Senator Richard Henry Lee wrote to Samuel Adams as follows:
But so wonderfully are mens minds now changed upon the subject of
liberty, that it would seem as if the sentiments which universally
prevailed in 1774 were antediluvian visions, and not the solid reason
of fifteen years ago! Among the many striking instances that daily
occur, take the following, communicated to me by an honble. member of
the H. of R. here. You well know our former respected, republican
friend, old Mr. R-g-r-Sh-n [Roger Sherman] of Con. whose person,
manners, and every sentiment appeared formerly to be perfectly
republican. This very gentleman, our old republican friend opposed a
motion for introducing into a bill of rights, an idea that the
Military should be subordinate to the Civil power. His reason as
stated was "that it would make the people insolent!" This was in a
committee of the H. of R. for reporting amendments to the
Constitution.196
While the Committee did not adopt the amendment, subordination of the military to the civil power was already implicit in the text of the Constitution. Nonetheless, Sherman's alleged comment is consistent with his restrictive concept of a bill of rights.
Sherman's draft was not adopted by the House select committee,
which instead, on July 28, reported Madison's proposals as amended by
the committee. Had the House committee intended to confirm a state
militia power, Sherman's proposal or the comparable state proposals
would have been appropriate. Instead, the committee reported the
following: "A well regulated militia, composed of the body of the
people, being the best security of a free state, the right of the
people to keep and bear arms shall not be infringed; but no person
religiously scrupulous shall be compelled to bear arms."197
The select committee did not change Madison's words that "the right of the people to keep and bear arms shall not be infringed," although it moved the philosophical declaration about a well regulated militia to its position before, rather than after, the substantive guarantee. It also inserted, consistent with the phraseology of the Virginia, New York, and North Carolina convention demands, the definition of such a militia as "composed of the body of the people."
The select committee version used the term "infringed" in
three other instances, including two instances in which Madison's
original draft had used the terms "violated" or "inviolate."198 The
equal rights of conscience, and the freedom of speech, press,
assembly, and petition could not be "infringed,"199 and no state could
"infringe" conscience, speech, press, or jury trial in criminal
cases.200
Meanwhile, debate over the proposed amendments raged in the newspapers. The underlying fear against a government monopoly of arms was expressed thus: "Power should be widely diffused....The monopoly of power, is the most dangerous of all monopolies."201 The following reflects the understanding that the keeping and bearing of private arms contributed to a well-regulated militia:
A late writer...on the necessity and importance of maintaining a well
regulated militia, makes the following remarks:_A citizen, as a
militia man is to perform duties which are different from the usual
transactions of civil society....[W]e consider the extreme importance
of every military duty in time of war, and the necessity of acquiring
an habitual exercise of them in time of peace....202
The Second Amendment was not intended to protect the citizens having arms only in their militia capacity. Rather, it originated in part from Samuel Adams's proposal (which contained no militia clause) that Congress could not disarm any peaceable citizens:
It may well be remembered, that the following "amendments" to the new
constitution of these United States, were introduced to the convention
of this commonwealth by... SAMUEL ADAMS...[E]very one of the intended
alterations but one [i.e., proscription of standing armies] have been
already reported by the committee of the House of Representatives, and
most probably will be adopted by the federal legislature. In justice
therefore for that long tried Republican, and his numerous friends,
you gentlemen, are requested to republish his intended alterations, in
the same paper, that exhibits to the public, the amendments which the
committee have adopted, in order that they may be compared
together.... "And that the said constitution be never
construed to authorize congress...to prevent the people of the United
States, who are peaceable citizens, from keeping their own
arms...."203
C. House Debate
On July 28, Chairman Vining presented the select committee report. The House Committee of the Whole debated the select committee's proposals for over a week.
Just as in the constitutional convention of 1787, Roger
Sherman continued to object to Bill of Rights guarantees because
Congress had no power over such areas. He thought the amendment that
"no religion shall be established by law" to be "altogether
unnecessary, inasmuch as Congress had no authority whatever delegated
to them by the constitution to make religious establishments; he
would, therefore, move to have it struck out."204
Once again, Madison responded that delegated powers could not be exercised to infringe on rights, and that explicit guarantees would prevent misconstruction:
Whether the words are necessary or not, he did not mean to say, but
they had been required by some of the State Conventions, who seemed to
entertain an opinion that under the clause of the constitution, which
gave power to Congress to make all laws necessary and proper to carry
into execution the constitution, and the laws made under it, enabled
them to make such laws of such a nature as might infringe the rights
of conscience, and establish a national religion; to prevent these
effects he presumed the amendment was intended, and he thought it as
well expressed as the nature of the language would admit.205
The amendments continued to be viewed as protective of
individual rights. On August 9, Representative William L. Smith of
South Carolina wrote to fellow federalist Edward Rutledge: "The
Committee on amendmts. have reported some, which are thought
inoffensive to the federalists & may do some good on the other side
....There appears to be a disposition in our house to agree to some,
which will more effectually secure private rights, without affecting
the structure of the Govt."206
The proposals resulting in the Second Amendment were discussed
on August 17, 1789. The recorded debates do not include an explanation
of the scope of the right to keep and bear arms or any objection to a
declaration of that right. Unfortunately, analysis of debate on any of
the Bill of Rights provisions must consider that the Annals of
Congress reflect "the unreliable shorthand reports of one Thomas
Lloyd, the incompetent, often inebriated stenographer who was supposed
to have been recording the discussions in the House of
Representatives."207
In any event, Lloyd's debates appear to reflect accurately the concern that an armed populace as militia contributes to a free state by reducing the need for and danger of a standing army, and the objection that Congress might rely on the conscientious objector clause as a ruse to disarm persons Congress decided are religiously scrupulous.
Elbridge Gerry clarified that the purpose of the amendment was protection from oppressive government,208 and thus the government should not be in a position to exclude the people from bearing arms:
This declaration of rights, I take it, is intended to secure the people against the mal-administration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.
What, sir, is the use of militia? It is to prevent the establishment
of a standing army, the bane of liberty. Now, it must be evident,
that, under this provision, together with their other powers, Congress
could take such measures with respect to a militia, as to make a
standing army necessary. Whenever Government mean to invade the rights
and liberties of the people, they always attempt to destroy the
militia, in order to raise an army upon their ruins. This was actually
done by Great Britain at the commencement of the late revolution. They
used every means in their power to prevent the establishment of an
effective militia to the eastward. The Assembly of Massachusetts,
seeing the rapid progress that administration were making to divest
them of their inherent privileges, endeavored to counteract them by
the organization of the militia; but they were always defeated by the
influence of the Crown.209
Gerry argued that the federal government should have no authority to categorize any individual as unqualified under the amendment to bear arms. "Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provisions on this head."210 Gerry therefore moved that the conscientious-objector clause be limited to actual members of religions sects scrupulous of bearing arms.211 Keeping and bearing arms was a right of "the people," none of whom should thereby be disarmed under any pretense, such as the government's arbitrary determination that they are religiously scrupulous (or perhaps that they are not active members of a select militia).
In reply, James Jackson of Georgia "did not expect that all the people of the United States would turn Quakers or Moravians; consequently, one part would have to defend the other in case of invasion." The reference to "all the people" indicated again the centrality of the armed populace for defense against foreign attack. After further discussion, Gerry objected to the wording of the first part of the proposed amendment:
A well regulated militia being the best security of a free
State, admitted an idea that a standing army was a secondary one. It
ought to read, "a well regulated militia, trained to arms;" in which
case it would become the duty of the Government to provide this
security, and furnish a greater certainty of its being done.212
Gerry's words exhibit again the general sentiment that security rested on the armed populace as a whole, not on specialized bodies of armed men. The lack of a second to his proposal suggests that the keeping and bearing of arms by the citizens at large would constitute a sufficiently well regulated militia to secure a free state, and thus there was no need to make it, in Gerry's words, "the duty of the Government to provide this security."
Aedanus Burke of South Carolina then sought to add to the personal arms guarantee the long-standing antifederalist demand:
A standing army of regular troops in time of peace is dangerous to
public liberty, and such shall not be raised or kept up in time of
peace but from necessity, and for the security of the people, nor then
without the consent of two-thirds of the members present of both
Houses; and in all cases the military shall be subordinate to the
civil authority.213
The motion was defeated,214 reflecting unanimity about the right of the people to keep and bear their private arms, but allowance for a limited army.
After further debate, the Committee of the Whole rose and submitted the select committee report to the House with minor changes. On August 20, the House considered what became the Second Amendment.
Debate on the exemption of religiously scrupulous persons from
being compelled to bear arms highlights the sentiment that not only
bearing, but also merely keeping of arms by the people was considered
both a right and a duty to prevent standing armies. Thomas Scott of
Pennsylvania objected that the exemption would mean that "a militia
can never be depended upon. This would lead to the violation of
another article in the constitution, which secures to the people the
right of keeping arms, and in this case recourse must be had to a
standing army."215
"What justice can there be in compelling them to bear arms?"
queried Elias Boudinot of New Jersey. "Now, by striking out the
clause, people may be led to believe that there is an intention in the
General Government to compel all its citizens to bear arms."216 The
proposed amendment was finally accepted after the insertion of the
words "in person" at the end of the clause.217
Many of the proposed amendments were subjected to criticism.
But the Second Amendment was apparently never attacked, aside from one editorial that argued the inefficiency of the militia clause, never questioning the right-to-bear-arms clause. After quoting the language of the proposal as it was approved by the House, the prominent antifederalist "Centinel" opined:
It is remarkable that this article only makes the observation, 'that a
well regulated militia, composed of the body of the people, is the
best security of a free state;' it does not ordain, or
constitutionally provide for, the establishment of such a one. The
absolute command vested by other sections in Congress over the
militia, are not in the least abridged by this amendment. The militia
may still be subjected to marital law..., may still be marched from
state to state and made the unwilling instruments of crushing the last
efforts of expiring liberty.218
"Centinel" was, of course, Samuel Bryan, author of the Pennsylvania Dissent of the Minority, which demanded recognition of the right to bear arms for defense of self, state, and country, and for hunting. By not objecting to lack of such a list of purposes in the Second Amendment, the antifederalists must have assumed that exercise of the right to keep and bear arms would extend to all lawful purposes. By the same token, Samuel Adams and the drafters of the New Hampshire proposal did not object to the lack of an explicit exclusion of criminals from the right to keep and bear arms, because this too was understood.
Centinel's observations indicate the understanding that the Second Amendment's militia clause was merely declaratory and did not protect state powers to maintain militias to any appreciable degree. That antifederalists never attacked the right-to-bear-arms clause demonstrates that it recognized a full and complete guarantee of individual rights to have and use private arms. Surely a storm of protest would have ensued had anyone hinted that the right only protected a government-armed select militia.
D. Senate Debate
"The lower house sent up amendments which held out a safeguard
to personal liberty in great many instances, but this disgusted the
Senate," Senator William Grayson wrote to Patrick Henry when the House
transmitted its amendments to the Senate.219 The amendments were
"treated contemptuously" by Senators Gouverneur Morris of New York,
Ralph Izard of South Carolina, and John Langdon of New Hampshire, who
tried but failed to postpone them until the next session.220
The 22-member Senate, which met in secret, began consideration
of the amendments on September 3, 1789. It sliced out parts of what
became the First Amendment, including the phrase "nor shall the rights
of conscience be infringed," but rejected a motion to delete a version
of First Amendment altogether.221 The next day the Senate passed a
modified amendment protecting speech, press, and petition, and
recognized "the right of the people peaceably to assemble and consult
for their common good ...."222
The Senate then considered a motion to add the following clauses to the House version of what became the Second Amendment right to keep and bear arms:
That standing armies, in time of peace, being dangerous to liberty,
should be avoided, as far as the circumstances and protection of the
community will admit; and that in all cases the military should be
under strict subordination to, and governed by, the civil power; that
no standing army or regular troops shall be raised in time of peace,
without the consent of two-thirds of the members present in both
Houses; and that no soldier shall be enlisted for any longer term than
the continuance of the war.223
This failed by a vote of six to nine. Those favoring the clauses included Virginia Senators Richard Henry Lee and William Grayson, and Senators Pierce Butler (South Carolina), James Gunn (Georgia), John Henry (Maryland), and Paine Wingate (New Hampshire).
Association of this standing army prohibition with the right of the
people to keep and bear arms did not detract from the personal nature
of the right, but reflected Lee's premise that "to preserve liberty,
it is essential that the whole body of the people always possess arms,
and be taught alike, especially when young, how to use them ...."224
The individual right to keep and bear arms checks and prevents
oppression from a standing army
The Senate's dim view of some amendments is reflected in a letter form Theodorick Bland Randolph to St. George Tucker, antifederalist Virginians and relatives of Congressmen. It stated:
The house of Representatives have been for some time past engaged on the subject of amendments to the constitution, though in my opinion they have not made one single material one. The senate are at present engaged on that subject; Mr. Richd. H. Lee told me that he proposed to strike out the standing army in time of peace but could not carry it.
He also says that it has been proposed, and warmly favoured that,
liberty of Speech and of the press may be stricken out, as they only
tend to promote licenciousness.225
The members of the majority who killed the anti-standing-army
propositions226 may have been concerned with its length as well as
probably opposed the requirement that two-thirds of the Congress must
authorize a standing army. However, the Senate went on to pass the
individual guarantee proposed by the House but "amended to read as
followeth: 'A well regulated militia, being the best security of a
free state, the right of the people to keep and bear arms, shall not
be infringed.'"227
In comparing the House version with this Senate version, the House redundantly mentions "the people" twice_once in defining "militia" as the "body of the people," and again as the entity with the right to keep and bear arms. The Senate more succinctly avoided repetition by deleting the well-recognized definition of the militia as "the body of the people."
The Senate also deleted the phrase that "no person religiously
scrupulous shall be compelled to bear arms"_perhaps because the
amendment depicts the keeping and bearing of arms as an individual
"right" (and not as a duty) for both public and private purposes, and
perhaps to preclude any constitutional authority of the government to
"compel" individuals (even those without religious scruples) to bear
arms for any purpose. Deletion of the clause also addressed
Congressman Gerry's argument in the House that "this clause would give
an opportunity to the people in power to destroy the constitution
itself. They can declare who are those religiously scrupulous, and
prevent them from bearing arms."228
An additional day of debate resulted in an important phrase being added to the House version of what became the Tenth Amendment:
"The powers not delegated to the state by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."229 While normally more conservative than the House, the Senate thereby made clear that "the people" have "powers" as well as "rights." By contrast, the state and federal governments have "powers" only and no "rights."230 Only individuals have "rights." Moreover, the Senate clearly distinguished between "the states" and "the people." "Rights" of "the people," such as keeping and bearing arms, could pertain only to individual persons, not states. Finally, "powers" are either "delegated" or "reserved," while individual "rights," whether of conscience or keeping arms, cannot be "infringed."
What "powers" do "the people" have in contradistinction to "rights?" Perhaps suffrage would be a power, as would resistance to oppression and armed overthrow of tyranny. The right to keep and bear arms, as the Revolution proved, was the basis for the ultimate exercise of "power" by the people, and would hopefully render exercise of this power of the people unnecessary in the new constitutional republic.
The next day, September 8, the Senate rejected a string of amendments from the Virginia Declaration of Rights,231 undoubtedly promoted by Lee and Grayson_the natural rights to life, liberty, and property; that "all power" is vested in "the people"; and that "the doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind."232 Unlike the declaration of specific rights, such as the press and arms, these proposals were perceived perhaps as useless truisms or platitudes. The reservation of "power" in "the people" in the Tenth Amendment may have been intended to abbreviate some of the above principles.
Attention then turned toward amendments to limit the military power of the federal government. Renewed proposals to require two thirds of both Houses of Congress to consent to a standing army, and limits on the terms of enlistment of soldiers, again failed.233 The Senate then rejected an explicit reservation of the state power to maintain militias incorporating the language of the Harrisburg, Virginia, and North Carolina conventions:
That each state, respectively, shall have the power to provide for
organizing, arming, and disciplining its 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 United States, shall be subject only to such
fines, penalties, and punishments, as shall be directed or inflicted
by the laws of its own state.234
The above action highlights the clear distinction between the "right" of "the people" to keep and bear arms, and the "power" of the "state" to arm and provide for militias. Besides the linguistic differences, the individual right was considered with other individual rights, and the state power was considered with other governmental powers. The two were completely separate proposals. The Senate passed the former and rejected the latter. This demonstrates the absurdity of the argument invented in the twentieth century that by declaring the right of the people to keep and bear arms, Congress actually intended to declare the power of states to maintain militias_the very proposal Congress rejected.
John Randolph commented on the Senate action, apparently from information he received from Senator Richard Henry Lee, as follows: "A majority of the Senate were for not allowing the militia arms & if two thirds had agreed it would have been an amendment to the Constitution. They are afraid that the Citizens will stop their full career to Tyranny & Oppression."235 In other words, even the state power to provide for arming the militia translated into the encouragement by the states of private citizens arming themselves with standard military weapons. Proponents of this amendment feared that the federal government would neglect the militia and prevent the states from mandating that the people arm themselves, thereby achieving a federal monopoly of power.
On September 9, the Senate again took up what became the Bill of Rights. It passed a form of the First Amendment similar to the final version.236 The Senate then rejected a proposal to add "for the common defence" after "bear arms" in the Second Amendment.237 Had it succeeded, recognition of "the right of the people to keep and bear arms for the common defense" would have still been an individual right to have arms, but could have been interpreted as allowing arms to be kept only for common defense against foreign aggression or domestic tyranny, or that only military arms could be kept. Similarly, the earlier version of the right of the people to assemble "for their common good"238 could have limited that right to public purposes. Rejection of both expressed an intent that keeping and bearing arms and assembly include private, as well as public, lawful purpose, and that the citizens, not the government, have freedom to choose which arms to keep and for what purposes to assemble.
The Senate then made a change in the precatory clause of the
Second Amendment. The declaration that a well regulated militia is
"the best security of a free state" was neutralized or perhaps
strengthened to state that a well regulated militia is "necessary to
the security of a free state."239 This met the objection made in House
debate that "a well regulated militia being the best security of a
free State, admitted that a standing army was a secondary one."240 The
Senate then passed its final version: "A well regulated militia being
necessary to the security of a free state, the right of the people to
keep and bear arms shall not be infringed."241
On September 19 and 21, the House debated and agreed to the
Senate amendments. A conference committee, including James Madison,
Roger Sherman, and John Vining from the House, and Oliver Ellsworth,
Charles Carroll, and William Paterson from the Senate, met and
resolved final details.242
On September 25, 1789, the Senate agreed to the House resolution approving the final version of the Bill of Rights and recommended it to the states (including North Carolina and Rhode Island, which had not yet ratified the Constitution) with a preamble initiated in the Senate.243 It stated: "The conventions of a number of the states having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added ...."244 The Second Amendment (the fourth article of the amendments submitted to the states) as it finally passed Congress contained a declaratory clause followed by a restrictive clause: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The framers clearly distinguished between the "right[s]" of "the people" and the "powers" of the states. They also knew how to use the term "militia" when they intended to do so, and they did not in some mysterious sense mean only the "militia" when they used the term "the people." The Fifth Amendment provides in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...." Thus, "the people" in the Second Amendment does not really mean only "the Militia, when in actual service," terms that appear in the Fifth Amendment. If keeping and bearing arms was a "right" only of "the militia, when in actual service," the framers certainly would have so stated.
The language of the state power to maintain militias is not the individual-rights vocabulary of the Second Amendment. Congress has "power" to provide for organizing and arming the Militia, "reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress...."245 (emphasis added). In other words, the "power" and "authority"_not "right"_is "reserved"_not "shall not be infringed"_to "the States respectively"_not "the people." Just as Congress has power "to raise and support armies," "to provide and maintain a navy," and "to provide for calling forth the militia,"246 the text of the Constitution also provides that "no state shall, without the consent of Congress,... keep troops, or ships of war in time of peace,... or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."247 The contrasting use of the word "keep" is revealing: no state shall "keep troops," but the people have a right to "keep... arms." The Second Amendment does not say that "the power of the states to keep militia troops is reserved."
The distinction between the states and the people is clearly made in the Tenth Amendment, which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The power to raise armies is delegated to the United States and prohibited to the states, while the power over the militia is reserved exclusively to the states, except as delegated to Congress in Article I, paragraph 8.
Finally, governmental powers are "delegated" or "reserved"; only rights retained by the people may not be "infringed." The words of the substantive guarantee of the Second Amendment apply only to individuals, never to state powers.
E. Ratification by the States
The adoption of the amendments by the states was by no means a foregone conclusion, and the ratification struggle ensued through 1791. Three positions emerged during the controversy: (1) the proposed amendments were adequate, (2) further guarantees were needed, and (3) freemen had no need of a bill of rights. None of the proponents of these three different positions ever called into question the basic, individual right of keeping and bearing arms. As it was commonly understood, the proposed Bill of Rights sought to guarantee personal and unalienable rights, but the people also retained unenumerated rights.248 Patrick Henry, Richard Henry Lee, and others were pleased with the Bill of Rights as far as it went, but they wanted guarantees against standing armies and direct taxes.249 Since these same prominent antifederalists were among the most vocal in calling for a guarantee that would recognize the individual right to have arms, it is inconceivable that they did not object to what become the Second Amendment if anyone understood it to fail to protect personal rights.
The view that the rights of freemen were too numerous to enumerate in a bill of rights was coupled with the argument that the ultimate protection of American liberty would be provided by the armed populace rather than by a paper bill of rights. The pro-amendment view held that both the existence of a bill of rights and an armed populace to enforce it were necessary to provide complementary safeguards. The following editorial assumes that keeping and bearing arms would contribute to a well-regulated militia, and vice versa, that militia exercises would demonstrate the people's strength and dissuade the government from infringing upon the right to keep and bear arms:
The right of the people to keep and bear arms has been recognized by
the General Government; but the best security of that right after all
is, the military spirit, that taste for martial exercises, which has
always distinguished the free citizens of these States; From various
parts of the Continent the most pleasing accounts are published of
reviews and parades in large and small assemblies of the
militia....Such men form the best barrier to the Liberties of
America.250
The debate over ratification of the Bill of Rights continued
throughout 1790. One writer reiterated that no bill of rights could
enumerate the rights of the peaceable citizen, "which are as numerous
as sands upon the sea shore...."251 President Washington reminded
members of the House of Representatives that "a free people ought not
only to be armed, but disciplined...."252 Still, right-to-arms
provisions were not necessarily associated with the citizen's militia
but were also coupled with different provisions. For instance, a
widely published proposed bill of rights for Pennsylvania included a
militia clause in a separate article from the following: "That the
right of the citizens to bear arms in defence of themselves and the
State, and to assemble peaceably together. . . shall not be
questioned."253
During the ratification period, the view prevailed that the
armed citizenry would prevent tyranny. Theodorick Bland wrote Patrick
Henry that "I have founded my hopes to the single object of securing
(in terrorem) the great and essential rights of freemen from the
encroachments of Power_so far as to authorize resistance when they
should be either openly attacked or insidiously undermined."254 While
the proposed amendments continued to be criticized for the lack of a
provision on standing armies,255 no one questioned the
right-to-bear-arms amendment.256
F. Rhode Island Assents
The Rhode Island Convention, which ratified the Constitution
on May 29, 1790, declared: "That the people have a right to keep and
bear arms; that a well-regulated militia, including the body of the
people capable of bearing arms, is the proper, natural, and safe
defence of a free state...."257 The section also declared against
standing armies and against the quartering of soldiers in houses.258
A separate body of amendments concerning the powers of the
government did not mention the militia. However, it declared against
federal conscription as follows: "that no person shall be compelled to
military duty otherwise than by voluntary enlistment, except in cases
of general invasion ...."259
Two days before Rhode Island ratified the Bill of Rights,
newspapers in that state republished its declaration of natural
rights, which had been included in its recent ratification of the
Constitution, recognizing "that the people have a right to keep and
bear arms" and "that a well-regulated militia, includ[es] the body of
the people capable of bearing arms."260
As more states adopted the amendments and the great debate dwindled, the opponents of a standing-army prohibition conceded that an armed citizenry, constituted as a well-regulated militia, would prevent oppression from that quarter. As "A Framer" argued in a plea addressed "To The Yeomanry of Pennsylvania":
Under every government the dernier resort of the people, is an appeal
to the sword; whether to defend themselves against the open attacks of
a foreign enemy, or to check the insidious encroachments of domestic
foes. Whenever a people... entrust the defence of their country to a
regular, standing army, composed of mercenaries, the power of that
country will remain under the direction of the most wealthy
citizens....[Y]our liberties will be safe as long as you support a
well regulated militia.261
IV. THE FEDERAL MILITIA ACT OF 1792
Following the example of state law, the federal Militia Act of May 8, 1792 required every "free able bodied white male citizen" aged 18 through 45 to "provide himself with a good musket or firelock," bayonet and ammunition. Horsemen were to equip themselves with a pair of pistols, ammunition, and sabre. The bill was originally introduced in the House on December 14, 1790.262 The debates on the bill explicate the nature of a well regulated militia at a time when the Bill of Rights was still being considered by the states.
House debate began on December 16. Congressman Josiah Parker of Virginia objected that the requirement that "every man in the United States shall 'provide himself' with military accoutrements would be found impracticable, as it must be well known that there are many persons who are so poor that it is impossible they should comply with the law."263 He proposed that the United States should pay the expense of arming such persons.
Several members doubted that every man should be a member of
the active militia, but there was a consensus that every man be
armed.264 "As far as the whole body of the people are necessary to the
general defence, they ought to be armed," explained Thomas Fitzsimons
of Pennsylvania.265 James Jackson of Georgia argued that "the people
of America would never consent to be deprived of the privilege of
carrying arms. Though it may prove burdensome to some individuals to
be obliged to arm themselves, yet it would not be so considered when
the advantages were justly estimated....In a Republic every man ought
to be a soldier, and be prepared to resist tyranny and usurpation, as
well as invasion, and to prevent the greatest of all evils_a standing
army."266
The House then debated Parker's motion that the United States would provide arms for persons too poor to purchase them.267 Roger Sherman analyzed the militia clause of the Constitution in the same manner he had heard it explained in the convention of 1787:
What relates to arming and disciplining means nothing more than a
general regulation in respect to the arms and accountrements. There
are so few freemen in the United States who are not able to provide
themselves with arms and accoutrements, that any provision on the part
of the United States is unnecessary and improper. He had no doubt that
the people, if left to themselves, would provide such arms as are
necessary, without inconvenience or complaint; but if they are
furnished by the United States, the public arsenals would soon be
exhausted; and experience shows that public property of this kind,
from the careless manner in which many persons use it, is soon
lost.268
After a suggestion that the poor, minors, and apprentices be armed by the United States, the ultimate objection to this government-armed populace was expressed by Jeremiah Wadsworth of Connecticut: "Is there a man in this House who would wish to see so large a proportion of the community, perhaps one-third, armed by the United States, and liable to be disarmed by them?"269 Masters would assist apprentices, and "as to minors, their parents or guardians would prefer furnishing them with arms themselves, to depending on the United States when they knew they were liable to having them reclaimed."270 A vote was then taken, and Parker's motion failed.
Fitzsimons moved to strike the words "provide himself" and amend the bill to read that every citizen "shall be provided" with arms. James Madison and others objected that this "would leave it optional with the States, or individuals, whether the militia shall be armed or not."271 The motion lost.
Considerable debate ensured concerning persons who may be
exempted from militia exercises. Under the Constitution, Hugh
Williamson of North Carolina noted, "Congress are to provide for
arming and disciplining the militia; but who are the militia? Such
men, he presumed, as are declared so to be by the laws of the
particular States, and on this principle he was led to suppose that
the militia ought to consist of the whole body of citizens without
exception."272
While the Senate met in secret and no debates were officially
recorded, William Maclay's journal contains revealing portions of the
debates on the bills for the military establishment and for regulating
the militia. Richard Henry Lee gave what must have been familiar
speeches against standing armies.273 Senator Maclay believed that
Alexander Hamilton and his faction were promoting war with the Indians
and foreign powers as a "Pretext for rasing an Army meant to awe our
Citizens into Submission."274 Army supporters accused the Spaniards of
having "supplied the Indians with Arms and Ammunition,"275 but argued
that "it was dangerous to put Arms into the hands of the Frontier
People for their defense, least they should use them against the
United States."276
Maclay protested these allegations as "subterfuges," and wrote:
The Constitution certainly never contemplated a Standing Army in time
of peace. A Well regulated Militia to execute the laws of the Union,
quell insurrections and repel Invasions, is the very language of the
Constitution. General Knox offers a most exceptionable bill for a
General Militia law which excites (as it is most probable he expected)
a general Opposition. Thus the Business of the Militia stands still,
and the military establishment bill which increases the standing
Troops One half is pushed with all the Art & address of ministerial
Management.277
Two anecdotes by Maclay illustrate the attitudes of the day
toward personal arms. It seems that Alexander Hamilton made insulting
remarks against the militia, giving rise in the House of
Representatives to "a Violent personal Attack on Hamilton By Judge
[Aedanus] Burk[e] of South Carolina which the Men of the blade say
must produce a duel."278
July 4, 1790 in New York was celebrated a day late because it
fell on a Sunday. When Congress adjourned, Maclay saw that "all the
Town was in Arms ....the firing of cannon and small arms with beating
of Drums kept all in uproar."279 The Senators went to President
Washington's home for wine and cakes, and then to a reading of the
Declaration of Independence.280
The United States in 1792 reflected the finalization of a unique period which began five years earlier. A constitution with limited, enumerated powers was proposed, but opponents would not allow its passage without a commitment to adopt a declaration of individual rights, including the right to keep and bear arms. This declaration was created and ratified, but attempts to pass amendments to the Constitution's provisions on state and federal governmental powers failed. While the Second Amendment or its equivalent was strongly demanded in state conventions and was then ratified by Congress and passed by the states, a totally separate provision about the right of states to maintain militias failed miserably. Nonetheless, Congress enacted legislation mandating that every man be armed.
CONCLUSION: SUPREME COURT JURISPRUDENCE
A. The Power of the States
From the earliest interpretations of the Constitution to the present, it has been consistently held that the states have a concurrent power over the militia with the United States and that each state may require its able-bodied citizens to provide themselves with and keep firearms, particularly militia weapons. The position argued by Madison and other federalists in the Virginia ratifying convention of 1788 has been vindicated, despite the failure of a proposed amendment explicitly recognizing the state power to maintain and provide for arming the militia.
In 1803, St. George Tucker cited Article I, paragraph 8,
clause 16 and the Second Amendment in support of the proposition that
"the power of arming the militia, not being prohibited to the states,
respectively, by the constitution, is, consequently, reserved to them,
concurrently with the federal government."281
The states passed militia laws in support of and to enforce the 1792 Act of Congress. For instance, Massachusetts required that every citizen "constantly keep himself furnished and provided with arms and equipments required by the laws of the United States ...."282 Persons were fined for not keeping the arms required by law.283 United States v. Miller (1939)284 analyzed early state militia laws and concluded:
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia_civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of the Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.285 (emphasis added).
The Supreme Court held in Houston v. Moore (1820)286 that the states have a reserved power to require all able-bodied males to provide themselves with standard military arms. Justice Washington noted that the federal Militia Act of 1792 declared "what arms and accoutrements the officers and privates shall provide themselves with ...."287 The Court added:
So long as the militia are acting under the military jurisdiction of
the state to which they belong, the powers of legislation over them
are concurrent in the general and state government. Congress has power
to provide for organizing, arming, and disciplining them ....But as
state militia the power of the state governments to legislate on the
same subjects, having existed prior to the formation of the
constitution, and not having been prohibited by that instrument, it
remains with the states, subordinate nevertheless to the paramount law
of the general government, operating upon the same subject.288
The court also stated that "if Congress had declined to
exercise [its powers], it was competent to the state governments to
provide for...arming...their respective militia, in such manner as
they might think proper."289
In a separate opinion, Justice Story wrote:
Nor does it seem necessary to contend that the power "to provide for
organizing, arming, and disciplining the militia" is exclusively
vested in Congress....It would certainly seem reasonable, that in the
absence of all interfering provisions by Congress on the subject, the
states should have authority to organize, arm, and discipline their
own militia....[W]hat would the militia be without...arms...290
Relying extensively on the above precedent, the Illinois Supreme Court case Dunne v. People (1879)291 cited the Tenth Amendment in support of the following: "The power of State governments to legislate concerning the militia existed and was exercised before the adoption of the Constitution of the United States, and as its exercise was not prohibited by that instrument, it is understood to remain with the States, subject only to the paramount authority of acts of Congress enacted in pursuance of the Constitution of the United States."292 The court also held:
"A well-regulated militia being necessary to the security of a free
State," the States, by an amendment to the Constitution, have imposed
a restriction that Congress shall not infringe the right of the
"people to keep and bear arms." The chief executive officer of the
State is given power by the Constitution to call out the militia, "to
execute the laws, suppress insurrection and repeal invasion." This
would be a mere barren grant of power unless the State had power to
organize its own militia for its own purposes. Unorganized, the
militia would be of no practical aid to the executive in maintaining
order and in protecting life and property within the limits of the
State. These are duties that devolve on the State, and unless these
rights are secured to the citizens, of what worth is the State
government?293
Arising out of the same labor disturbance in Chicago as in Dunne, Presser v. Illinois (1885),294 decided by the United States Supreme Court, held that prohibitions on unlicensed military parades "do not infringe the right of the people to keep and bear arms," adding:
It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the
United States as well as of the States, and, in view of this
prerogative of the general government, as well as of its general
powers, the States cannot, even laying the constitutional provision in
question out of view, prohibit the people from keeping and bearing
arms, so as to deprive the United States of their rightful resource
for maintaining the public security, and disable the people from
performing their duty to the general government.295
By the same token, the United States may not prohibit the
possession of militia arms, so as to deprive the states of their final
resource for maintaining the public security, or prevent the people
from performing their duty to the state governments.296
Justice Cardozo wrote in Babington v. Yellow Taxi Corp.
(1928):297
The duty goes back to the days of hue and cry...To make pursuit effective, there were statutes in those early days whereby a man was subject to a duty to provide himself with instruments sufficient for the task. A typical illustration is the Statute of Winchester, 13 Edw.
I, enacted in 1285....Thus, for fifteen pounds of lands and goods
there shall be kept "an Hauberke [a Brestplate] of iron, a Sword, a
Knife, and a Horse."...Still, as in the days of Edward I, the
citizenry may be called upon to enforce the justice of the
state...with whatever implements and facilities are convenient and at
hand.298
Justice Cardozo recalled the above in showing "the duty of the able-bodied citizen to aid in suppressing crime" in his concurring opinion in Hamilton v. University of California (1934).299 The majority opinion upheld mandatory military training, including the use of automatic rifles, of students at a university based on the following:
Undoubtedly every State has authority to train its able-bodied male citizens of suitable age appropriately to develop fitness, should any such duty be laid upon them, to serve in the United States army or in state militia (always liable to be called forth by federal authority to execute the laws of the Union, suppress insurrection or repel invasion . . .) or as members of local constabulary forces or as officers needed effectively to police the State....So long as its action is within retained powers and not inconsistent with any exertion of the authority of the national government and transgresses no right safeguarded to the citizen by the Federal Constitution, the State is the sole judge of the means to be employed and the amount of training to be exacted for the effective accomplishment of these ends.
Second Amendment.300
By statutory definition, the National Guard is "that part of the organized militia of the several States" that is "armed...wholly or partly at Federal expense" and "is federally recognized."301 "In addition to its National Guard, if any, a State...may, as provided by its laws, organize and maintain defense forces."302 The U.S.
Government issues arms to the National Guard, but not to the states'
defense forces.303 "So far as practicable, the same types of...arms as
are issued to the Army shall be issued to the Army National
Guard...."304
The availability of uniform arms to a portion of the state militias pursuant to the National Defense Act of 1916 greatly enhanced defense capabilities. As explained in Maryland for the Use of Levin v.
United States (1965):305
From the days of the Minutemen of Lexington and Concord until just
before World War I, the various militias embodied the concept of a
citizen army, but lacked the equipment and training necessary for
their use as an integral part of the reserve force of the United
States Armed Forces....Pursuant to power vested in Congress by the
Constitution [Art. I, Section 8], the Guard was to be uniformed,
equipped, and trained in much the same way as the regular army,
subject to federal standards and capable of being "federalized" by
units, rather than by drafting individual soldiers. In return,
Congress authorized the allocation of federal equipment to the
Guard....306
The states are entitled to require members of their defense forces and reserve militias to provide themselves with the same arms which are used by the National Guard. The ideal of a uniformity of arms for all militia members has been recognized since the Constitution was framed.
Based on the above, Congress has no power to prohibit possession of such militia arms as the states are entitled to require that its citizens or a part thereof furnish themselves with and keep in their homes. The states' concurrent power to organize and provide for arming their militias is a reserved power which federal legislation may not contradict.
B. The Right of the People
Traditionally, the Supreme Court has paid little attention to
the Second Amendment. It noted in the Dred Scott case that recognition
of African Americans as citizens would exempt them from "police
regulations" (i.e., slave codes), and allow them "to keep and carry
arms wherever they went."307 During Reconstruction, the Court stated
that the rights of the people "peaceably to assemble for lawful
purposes" and "of bearing arms for a lawful purpose" were not
"granted" by the Constitution because they existed long before its
adoption.308 A later opinion again recognized "the right of the people
to keep and bear arms" and repeated that the Second Amendment is a
limitation "upon the power of Congress and the National
government...."309
At the turn of the century, the Court wrote of "the freedom of
speech and of the press" and "the right of the people to keep and bear
arms" that "the law is perfectly well settled that the first ten
Amendments to the constitution, commonly known as the Bill of Rights,
were not intended to lay down any novel principles of government, but
simply to embody certain guaranties and immunities which we inherited
from our English ancestors...."310
Only in United States v. Miller (1939)311 has the high court addressed the Second Amendment, and even then only in rudimentary form. Absent evidence in the trial court that a sawed-off shotgun "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."312 The test was not whether the person in possession of the arm was a member of a formal militia unit, but whether the arm "at this time" is "ordinary military equipment" or its use "could" potentially assist in the common defense.
Referring to the militia clause of the Constitution, the
Supreme Court stated that "to assure the continuation and render
possible the effectiveness of such forces the declaration and
guarantee of the Second Amendment were made."313 The court then
surveyed colonial and state militia laws to demonstrate that "the
Militia comprised all males physically capable of acting in concert
for the common defense" and that "these men were expected to appear
bearing arms supplied by themselves and of the kind in common use at
the time."314
The philosophy behind the Second Amendment was well articulated in the commentaries of Justice Joseph Story and Judge Thomas M. Cooley, which Miller approvingly cites.315 Justice Story stated: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."316 Miller's reference to Judge Cooley finds him stating:
Among the other safeguards to liberty should be mentioned the right of
the people to keep and bear arms....The alternative to a standing army
is 'a well-regulated militia'; but this cannot exist unless the people
are trained to bearing arms. The federal and state constitutions
therefore provide that the right of the people to bear arms shall not
be infringed....317
While it has not discussed the Second Amendment in any detail since Miller, the Supreme Court has recently denied that some Bill of Rights freedoms "are in some way less 'fundamental' than" others.
"Each establishes a norm of conduct which the Federal Government is
bound to honor_to no greater or lesser extent than any other inscribed
in the Constitution. Moreover, we know of no principled basis on which
to create a hierarchy of constitutional values...."318 The Supreme
Court has also held that "when we do have evidence that a particular
law would have offended the Framers, we have not hesitated to
invalidate it on that ground alone."319
The two 1990 Supreme Court opinions analyzed at the beginning of this article should lay to rest any lingering doubts about the Second Amendment's applicability. First, the right to keep and bear arms belongs to "the people," the same individuals whose rights are protected by the First, Fourth, and Ninth Amendments. Second, the state power to maintain a militia is defined in the militia clause of the text of the Constitution, and is not substantively protected by the Second Amendment.
Every term in the Second Amendment's substantive guarantee_which is not negated by its philosophical declaration about a well regulated militia_demands an individual rights interpretation. The terms "right," "the people," "keep and bear," and "infringed" apply only to persons, not states. Moreover, the framers, supporters, and opponents of the original Constitution all agreed on the political ideal of an armed populace, and the unanimous interpretation of the Bill of Rights in Congress and by the public was that the Second Amendment guaranteed the right to keep and bear arms. Indeed, the very amendment which would have made explicit the state power to maintain a militia failed completely.
The language and historical intent of the Second Amendment mandates recognition of the individual right to keep and bear firearms and other personal weapons. Like those who oppose flag burning as symbolic protest, opponents of this right have the option of pressing for an amendment to a bill of rights no longer seen as worthwhile.
ENDNOTES
1 S. Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 639-42 (1989).
2 Id. at 644-45.
3 As will be seen below, the Virginia ratifying convention proposed, and the United States Senate rejected, an amendment to the Constitution which would have stated: "That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 660 (1836); JOURNAL OF THE FIRST SESSION OF THE SENATE 75 (1820).
4 Article II, Sec. 2 provides: "The President shall be the commander in chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States...." This provision makes clear that there is no national militia, but only a "Militia of the several States." Similarly, the Fifth Amendment provides for grand jury indictment "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...." Thus, the militia of the several states always retains its status as such, even though it may be called in the "actual service" of the United States for specified domestic purposes.
5 United States v. Verdugo-Urquidez, 494 U.S.-, 108 L.Ed.2d 222, 232-33, 110 S.Ct. 1056, 1060-61 (1990) (holding the Fourth Amendment warrant requirement inapplicable to the search of a home in a foreign country).
6 108 L.Ed.2d at 247.
7 Id. at 248.
8 Id. at 2429. "[The Constitution left] under the sway of the states undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power raise armies." Id. at 2430 n.29, quoting Selective Draft Law Cases, 245 U.S. 366, 383 (1918).
9 J. ELLIOT, DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 172
(1845).
10 Id. at 440.
11 Id.
12 Id. at 443.
13 Id.
14 Id.
15 Id.
16 Id. at 444.
17 Id.
18 Id.
19 Id.
20 Id. at 445.
21 Id.
22 Id. at 464.
23 Id. at 464-65.
24 Id. at 465.
25 Id.
26 S. HALBROOK, A RIGHT TO BEAR ARMS 26, 32, 46 (1989).
27 J. ELLIOT, DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 466
(1845).
28 Id. at 466-67.
29 Id. at 538.
30 Id.
31 Id.
32 Id.
33 Id. at 544.
34 Id. at 545.
35 Id.
36 Id.
37 R. ROLLINS, THE LONG JOURNEY OF NOAH WEBSTER 52-53 (1980).
38 13 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION
405-406 (1981).
39 N. Webster, AN EXAMINATION OF THE LEADING PRINCIPLES OF THE FEDERAL
CONSTITUTION 43 (Philadelphia 1787).
40 Coxe, "An American Citizen IV" (Oct. 21, 1787), in 13 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 433 (1981).
41 Id. at 435.
42 R. Lee, Letters of a Federal Farmer, 14 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 38-39 (1983).
43 2 J. ELLIOT, DEBATES IN THE SEVERAL STATES CONVENTIONS 521 (1836).
44 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 509
(1976).
45 Id. at 336.
46 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 617
(1976).
47 Id. at 623-24.
48 See S. HALBROOK, A RIGHT TO BEAR ARMS 22 (1989).
49 Id. at 23-25. Accordingly, the very next proposal of the "Dissent of the Minority" was as follows:
The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.
2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 624
(1976).
50 Id.
51 Id. at 638.
52 Independent Gazetteer, Feb. 11, 1788, 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Mfm. Supp.) 1695 (1976).
53 2 J. Elliot, DEBATES IN THE SEVERAL STATE CONVENTIONS 545 (1836).
54 Id. at 545-46.
55 15 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 230
(1986).
56 Id. at 492.
57 Id. at 493.
58 Pennsylvania Gazette, Feb. 20, 1788, in 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 439 (1976).
59 Pennsylvania Gazette, Feb. 20, 1788, in 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Mfm. Supp.) at 1778-1780 (1976).
60 Independent Chronicle (Boston), Oct. 25, 1787, 13 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 523 (1981).
61 THE ANTIFEDERALIST PAPERS 75 (M. Borden ed. 1965).
62 Id.
63 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 74 (1836).
64 Id. at 97.
65 S. HALBROOK, A RIGHT TO BEAR ARMS 1-7 (1989).
66 DEBATES OF THE MASSACHUSETTS CONVENTION OF 1788 at 86-87, 266 (Boston, 1856).
67 See S. HALBROOK, A RIGHT TO BEAR ARMS 1-16, 39-41 (1989).
68 From the Boston Independent Chronicle, Independent Gazetteer, Aug.
20, 1789, at 2, col. 2.
69 Id.
70 1 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 326 (1836). "The right to bear arms, going back to the English Bill of Rights, received recognition in the Second Amendment to the Constitution....Counting this article, seven out of twelve of New Hampshire's proposals were ultimately accepted." E. Dumbauld, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 21 n.37 (1957).
71 S. HALBROOK, A RIGHT TO BEAR ARMS 75 (1989).
72 "Remarks," No. II, Federal Gazette (Philadelphia), Oct. 24, 1788.
73 No. IV, Fayetteville Gazette (N.C.), Oct. 12, 1789, at 1 col. 2-3 and 2, col. 1-2.
74 No. VIII, Federal Gazette, Nov. 14, 1788.
75 Id.
76 No. XI, id., Nov. 28, 1788.
77 Id. Collin also opposed amendments guaranteeing a free press and jury trial, a prohibition on general warrants and cruel and unusual punishment, and all other proposed amendments. No. XII, id., Dec. 2, 1788 and No. XXVIII, id., Feb. 16, 1789.
78 8 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 401
(1988).
79 Winchester Gazette (Virginia), February 22, 1788, in id. at 404.
80 Id.
81 Id. at 404-05.
82 Id. at 402.
83 3 ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 654-55 (1836).
84 9 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION
769-70 (1990).
85 Virginia Independent Chronicle, April 30, 1788, in id. at 773-74.
86 R. Lee, ADDITIONAL LETTERS FROM THE FEDERAL FARMER 53 (1788).
87 Id. at 169.
88 Id. at 170 (Emphasis added).
89 "A Slave," Oct. 6, 1787, 13 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 345 (1981).
90 The Government of Nature Delineated (1788), 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (Mfm. Supp.) 2524 (1976).
91 Id. at 2526.
92 State Gazette (Charleston), Sept. 8, 1788.
93 F. MONAGHAN, HERITAGE OF FREEDOM 58 (1947).
94 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 813
(1990).
95 Id. at 819.
96 Id. 821.
97 Id. at 813.
98 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 37 (1836).
99 Id. at 45.
100 Id. at 51.
101 Id. at 51-52.
102 Id. at 52 (quoting U.S. Const., Art. 1, paragraph 8, cl. 16).
103 Id. at 90.
104 Id. at 112.
105 Id. at 168-69 (referring to Art 1, paragraph 8, cl. 17).
106 Id. at 169 (referring to Art. 1, paragraph 8, cl. 18).
107 Id. at 206.
108 Id. at 379.
109 Id. at 380.
110 Id.
111 SIR WILLIAM KEITH, A COLLECTION OF PAPERS AND OTHER TRACTS 180
(London 1740)
112 Id. at 170.
113 Id. at 175.
114 SIR WILLIAM KEITH, TWO PAPERS ON THE SUBJECT OF TAXING THE BRITISH
COLONIES IN AMERICA 9 (London 1767).
115 Id. at 8.
116 Id.
117 9 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 883
(1990).
118 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 381 (1836).
119 Id. at 386 (emphasis added).
120 Id. at 391.
121 Id. at 247.
122 Id. at 418.
123 Id. at 419-20.
124 Id. at 421.
125 Id. at 425-46.
126 Id. at 428.
127 Id. at 430.
128 Id. at 440.
129 Id. at 646.
130 Id. at 656.
131 Id.
132 Id. at 657.
133 Id. at 659.
134 3 MASON, PAPERS 1068-71 (1970).
135 9 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 821
(1990).
136 3 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 660 (1836).
137 Id., 2, at 545-46.
138 New York Journal and Daily Advertiser, April 21, 1788, at 2, col.
2.
139 9 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 813
(1990).
140 Id. at 825.
141 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 327-28 (1836).
142 Id. at 329.
143 Id. at 331.
144 4 J. ELLIOT, DEBATES in the SEVERAL STATE CONVENTION 242 (1836).
145 Id. at 203.
146 Id. at 244.
147 Id. at 245.
148 3 J. ADAMS, A DEFENSE OF THE CONSTITUTIONS OF GOVERNMENT OF THE
UNITED STATES OF AMERICA 471-72 (1787-88). Newspapers of the time alluded to Rome's disarming of conquered peoples. The Massachusetts Centinel, April 11, 1787 recalled "the old Roman Senator, who after his country subdued the commonwealth of Carthage, had made them deliver up...their arms...and rendered them unable to protect themselves...." 13 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 79 (Kaminski and Saladino eds. 1981).
149 3 J. ADAMS, A DEFENSE OF THE CONSTITUTIONS, 474 (1787-88).
150 Id. at 475.
151 Letter to Wm. S. Smith, 1787, in JEFFERSON, ON DEMOCRACY 20 (S. Padover ed. 1939). In his influential Letter of 1788, Luther Martin stated: "By the principles of the American revolution arbitrary power may, and ought to be, resisted even by arms, if necessary." 1 J.
ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 382 (1836). See New
York Journal, Aug. 14, 1788, at 2, col. 4 (the people will resist
arbitrary power). A writer in the Pennsylvania Gazette, April 23,
1788, in DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION
(Mfm. Supp.) at 2483 (Jensen ed. 1976), criticized "the loyalists in the beginning of the late war, who objected to associating, arming and fighting, in defense of our liberties, because these measures were not constitutional. A free people should always be left...with every possible power to promote their own happiness."
152 1 D. RAMSAY, THE HISTORY OF THE AMERICAN REVOLUTION xliii (Liberty
Classics ed. 1990).
153 13 PAPERS OF JAMES MADISON 233 (1981).
154 1 D. RAMSAY, THE HISTORY OF THE AMERICAN REVOLUTION 176 (1990).
155 Connecticut Courant, July 17, 1775, at 2, col. 1.
156 1 D. RAMSAY, THE HISTORY OF THE AMERICAN REVOLUTION 177 (1990).
Gage's proclamation, issued on June 19, 1775, stated:
Whereas notwithstanding the repeated assurances of the selectmen and others, that all the inhabitants of the town of Boston had bona fide delivered their fire arms unto the persons appointed to receive them, though I had advices at the same time of the contrary, and whereas I have since had full proof that many had been perfidious in this respect, and have secreted great numbers: I have though fit to issue this proclamation, to require of all persons who have yet fire arms in their possession immediately to surrender them at the court house, to such persons as shall be authorized to receive them; and hereby declare that all persons in whose possession any fire arms may hereafter be found, will be deemed enemies to his majesty's government.
New York Journal, Aug. 31, 1775, at 1, col. 4.
157 Id. at 243.
158 Id. at 178.
159 Id. at 181.
160 Id. at 190.
161 Id at 207.
162 Id.
163 R. RUTLAND, THE BIRTH OF THE BILL OF RIGHTS 196 (1962).
164 James Monroe Papers, New York Public Library, Miscellaneous Papers and Undated Letters.
165 R. RUTLAND, JAMES MADISON: THE FOUNDING FATHER 59-60 (1987).
166 Madison, Notes for Speech in Congress, June 8, 1789, 12 MADISON PAPERS 193-94 (Rutland ed. 1979). In a letter to Edmund Pendleton, Oct. 20, 1788, Madison referred to proposed amendments as "those further guards for private rights...." 4 MADISON PAPERS 60.
167 An Act Declaring the Rights and Liberties of the Subject, 1 W. & M., Sess. 2, c.2 (1689).
168 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 9-10 (1986).
169 Id. at 10.
170 Id.
171 Id.
172 Id.
173 Bill for Preservation of Deer (1785), 2 JEFFERSON, PAPERS 443-44 (Boyd ed. 1951).
174 "One species of fire-arm, the pistol, is never called a gun." NOAH
WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) ("gun).Webster, a prominent federalist from 1787, also defined "bear" as "to carry" or "to wear...as, to bear a sword, a badge, a name; to bear arms in a coat." Id.
175 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 11 (1986).
176 Id.
177 Id.
178 Id. at 12.
179 As stated in R. Caplan, The History and Meaning of the Ninth
Amendment, in THE RIGHTS RETAINED BY THE PEOPLE 278-79 & n.142 (1989):
Madison's distinction between powers and rights assumed a sharply definable boundary between governmental and individual discretion. For Madison, a power was a delegated capacity allowing the government to perform certain kinds of acts....It is Madison's consistent usage, which eliminated the ambiguous concept of state rights as referring to both governmental and personal rights, replacing it with the clearer power/right dichotomy, that was adopted with the Bill of Rights.
180 1 ANNALS OF CONGRESS 436-37 (1834).
181 Id. at 442.
182 Id. at 438.
183 Ames to Thomas Dwight, June 11, 1789, 1 WORKS OF FISHER AMES 52-53 (1854).
184 Ames to F.R. Minoe, June 12, 1789, id. at 53-54.
185 June 12, 1789, in 3 PATRICK HENRY 391 (1951). And see Joseph Jones to Madison, June 24, 1789, 12 MADISON PAPERS 258 (1978) (the amendments are "calculated to secure the personal rights of the people...."); William L. Smith to Edward Rutledge, Aug. 9, 1789, 79 SOUTH CAROLINA HISTORICAL MAGAZINE 14 (1968) (the amendments "will effectually secure private rights....").
186 CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST
FEDERAL CONGRESS, ed. H. Veit et al., 253 (1991).
187 Federal Gazette, June 18, 1789, at 2, col. 1. Madison's proposals had been published two days before in the same paper. Federal Gazette, June 16, 1789, at 2, col. 2-3.
188 Coxe to Madison, June 18, 1789, 12 MADISON PAPERS 239-40 (1978).
189 Madison to Coxe, June 24, 1789, id. at 257.
190 E.g., New York Packet, June 23, 1789 at 2, col. 1-2; Massachusetts Centinel (Boston), July 4, 1789, at 1, col. 2. Coxe's "Remarks on the Second Part of the Amendments," which appeared in the Federal Gazette, June 30, 1789, at 2 col. 1-2, exposited what is now the Ninth Amendment as follows:
It has been argued by many against a bill of rights, that the omission of some in making the detail would one day draw into question those that should not be particularized. It is therefore provided, that no inference of that kind shall be made, so as to diminish, much less to alienate an ancient tho' unnoticed right, nor shall either of the branches of the Federal Government argue from such omission any increase or extension of their powers.
Three decades later, Coxe referred to "the right to own and use arms and consequently of self-defense and of the public militia power ...." Democratic Press (Philadelphia), Jan. 23, 1823, at 2, col. 2. "Arms" included muskets, rifles, pistols, and swords. E.g., Democratic Press, Feb. 2, 1811, at 2.
191 Federal Gazette, July 2, 1789, at 2, col. 1.
192 CREATING THE BILL OF RIGHTS, ed. H. Veit et al., 260-61 (1991) (Emphasis added). Spelling and punctuation corrected. For Nasson's earlier correspondence with Thatcher, see id. at 251.
193 The other members included Abrahim Baldwin, Aedanus Burke, Nicolas
Gilman, George Clymer, Egbert Benson, Benjamin Goodhue, Elias
Boudinot, and George Gale. 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL
CONGRESS 4 (1986).
194 J. Hutson, The Bill of Rights: The Roger Sherman Draft, THIS CONSTITUTION, No. 18, at 36 (Spring/Summer 1988). The draft was discovered in 1987.
195 Id.
196 Letter dated August 8, 1789. CREATING THE BILL OF RIGHTS, ed. H.
Veit, 272 (1991).
197 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 28 (1986).
198 Compare id. at 10-11 with 28-29.
199 Id. at 28.
200 Id. at 29.
201 Political Maxims, New York Daily Advertiser, Aug. 15, 1789, at 2, col. 1. And see Patrick Henry to Richard Henry Lee, Aug. 28, 1789, 3 PATRICK HENRY 398 (1951): "For Rights, without having power and might is but a shadow."
202 Independent Gazetteer (Philadelphia), Aug. 18, 1789, at 3, col. 1.
203 From the Boston Independent Chronicle, Independent Gazetteer, Aug.
20, 1789, at 2, col. 2.
204 1 ANNALS OF CONGRESS 729-30 (1834).
205 Id. at 730.
206 CREATING THE BILL OF RIGHTS, ed. H. Veit et al., 272-73 (1991).
207 J. Hutson, The Bill of Rights, THIS CONSTITUTION, No. 18, at 36 (Spring/Summer 1988).
208 Concerning the proposed preamble phrase, "government being intended for the benefit of the people," Gerry responded:
This holds up an idea that all the Governments of the earth are intended for the benefit of the people. Now, I am so far from being of this opinion, that I do not believe that one out of fifty is intended for any such purpose. I believe the establishment of most Governments is to gratify the ambition of an individual, who, by fraud, force, or accident, had made himself master of the people. If we contemplate the history of nations, ancient or modern, we shall find they originated either in fraud or force, or both. If this is demonstrable, how can we pretend to say that Governments are intended for the benefit of those who are oppressed by them.
1 ANNALS OF CONGRESS 717-18 (1834). Given this political realism, the right of the people to keep and bear arms was considered by the founders as necessary to check oppressive government.
209 1 ANNALS OF CONGRESS 749-50 (1834).
210 Id. at 750.
211 Id.
212 Id. at 750-51.
213 Id. at 751.
214 Id. at 752.
215 Id. at 766-67.
216 Id. at 767. Actually, the opposite may be inferred by the eventual deletion of this part of the amendment, the purpose of which was to guarantee the individual "right" to keep and bear arms rather than to create a "duty" to do so. Arguably, this deletion was meant to preclude any constitutional power of the government to compel any person to bear arms rather than to exempt only the religiously scrupulous. See J. GRAHAM, A CONSTITUTIONAL HISTORY OF THE MILITARY DRAFT 45-50 (1971) (compulsory military service confined to the militia; individual right to keep and bear arms prevents military despotism).
217 1 ANNALS OF CONGRESS 767 (1834).
218 Centinel Revived, No. xxix, Independent Gazetteer, Sept. 9, 1789, at 2, col. 2.
219 Grayson to Henry, Sept. 29, 1789, 3 PATRICK HENRY 406 (1951).
220 THE DIARY OF WILLIAM MACLAY 133 (1988).
221 JOURNAL OF THE FIRST SESSION OF THE SENATE 70 (Washington, D.C.
1820).
222 Id. at 71.
223 Id.
224 R. Lee, ADDITIONAL LETTERS FROM THE FEDERAL FARMER 170 (1788).
225 Letter dated Sept. 9, 1789 (spelling corrected). CREATING THE BILL OF RIGHTS, ed. Veit et al., 293 (1991).
226 Those voting against the clauses included Senators Carroll, Dalton, Ellsworth, Elmer, Johnson, King, Paterson, Read, and Schuyler.
JOURNAL OF THE FIRST SESSION OF THE SENATE 71 (1820).
227 Id.
228 1 ANNALS OF CONGRESS 750 (Aug. 17, 1789).
229 JOURNAL OF THE FIRST SESSION OF THE SENATE 73 (1820). Actually, the House voted to insert "or to the people" in the same place, but for some reason the phrase was not included in the final House resolution. 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 31 n.34 (1986).
230 E.g., U.S. Const., Art. I, paragraph 8 ("the Congress shall have power"); Art. II, paragraph 1 ("the executive power"); Art. III, paragraph 1 ("the judicial power").
231 The Virginia Declaration of Rights (1776) declared the "inherent rights" of individuals to life, liberty, and property (paragraph 1), and that "all power is vested in, and consequently derived from, the people" (paragraph 2).
232 JOURNAL OF THE FIRST SESSION OF THE SENATE 74 (1820).
233 Id. at 75.
234 Id.
235 John Randolph to St. George Tucker, Sept. 11, 1789. CREATING THE BILL OF RIGHTS, ed. H. Veit, 293 (1991). Attribution of this information to Lee is suggested in K. BOWLING, "A TUB TO THE WHALE":
THE FOUNDING FATHERS AND ADOPTION OF THE FEDERAL BILL OF RIGHTS 12 (
Va. Com. on Bicent. of U.S. Const., n.d.).
236 JOURNAL OF THE FIRST SESSION OF THE SENATE 77.
237 Id. While the minutes do not reflect the makers of motions, and no recorded vote was taken on the above, a recorded vote on another matter the same day reveals the following Senators present: Bassett, Carroll, Dalton, Ellsworth, Grayson, Gunn, Henry, Johnson, Izard, King, Lee, Morris, Paterson, Read, Schuyler, and Wingate.
238 Id. at 71.
239 Id. at 77.
240 ANNALS OF CONGRESS 751 (Aug. 17, 1789) (Congressman Gerry).
241 JOURNAL OF THE FIRST SESSION OF THE SENATE 77 (1820).
242 4 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 8 (1986).
243 Id. at 43.
244 Id. at 45.
245 U.S. Const., Art. I, paragraph 8, Cl. 16.
246 Id., Clauses 12, 13, and 15.
247 Id., paragraph 100, Cl. 3.
248 "The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals....[I]t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." (Emphasis added.) Albert Gallatin to Alexander Addison, Oct. 7, 1789, MS. in N.Y. Hist. Soc. _A.G. Papers, 2.
"But there are some rights too essential to be delegated_too sacred to be infringed. These each individual reserves to himself; in the free enjoyment of these the whole society engages to protect him....All these essential and sacred rights, it would be difficult if not impossible, to recount, but some, in every social compact, it is proper to enumerate, as specimens of many others...." An Idea of a Constitution, Independent Gazetteer, Dec. 28, 1789, at 3, col. 3.
And see The Scheme of Amendments, Independent Gazetteer, March 23, 1789, at 2, col. 1: "The project of muffling the press, which was publicly vindicated in this town [Boston], so far as to compel the writers against the government, to leave their names for publication, cannot be too warmly condemned." Registration of persons for exercise of basic freedoms was considered to be infringement.
249 Patrick Henry "is pleased with some of the proposed amendments; but still asks for the great desideratum, the destruction of direct taxes." Edmund Randolph to James Madison, Aug. 18, 1789, 12 MADISON PAPERS 345 (1978). Jefferson was dissatisfied with the Bill of Rights, but did not object to the arms-bearing provision. Jefferson to Madison, id. at 363-64. The Bill of Rights was "short of some essentials, as Election interference & Standing Army & C...." Richard Henry Lee to Charles Lee, Aug. 28, 1789, 2 LETTERS OF RICHARD HENRY LEE 499 (1914). Most of those in the Virginia House who opposed the adoption of the amendments "are not dissatisfied with the amendments as far as they go" but wanted delay to prompt an amendment on direct taxes. Hardin Burnley to Madison, Nov. 5, 1789, 12 MADISON PAPERS 460.
In the Virginia Senate, there was extensive criticism of the proposed free speech guarantee and other amendments as too narrow, but no one questioned the right to bear arms provision. Objections to Articles, VA. SEN. J. 61-65 (Dec. 12, 1789). Virginia forestalled adoption of the Bill of Rights until the end of 1791. Nor did the Massachusetts General Court, which rejected the Bill of Rights, object to the arms-bearing provision in its verbose Report of the Committee of the General Court on Further Amendments of early 1790. However, the report urged an amendment which would have recognized a state power to veto Congressional action establishing a "system for forming the militia" or making an "establishment of troops in a time of peace." MASSACHUSETTS AND THE FIRST TEN AMENDMENTS 28 (D. Myers ed. 1936).
250 Gazette of the United States, Oct. 14, 1789, at 211, col. 2.
251 "A bill of rights for freemen appears to be a contradiction in terms....[I]n a free country, every right of human nature, which are as numerous as sands upon the sea shore, belong to the quiet, peaceable citizen." Federal Gazette, Jan. 5, 1790, at 2, col. 3.
"The absurdity of attempting by a bill of rights to secure to freemen what they never parted with, must be self-evident. No enumeration of rights can secure to the people all their privileges...." Federal Gazette, Jan. 15, 1790, at 3, col.3. This article ridiculed a bill of rights as analogous to conveying a house and lot but excepting out of the grant an enumeration of other houses and lots retained by the seller.
252 Speech of Jan. 7, 1790, Independent Chronicle (Boston), Jan. 14, 1790, at 3.
253 Providence Gazette & Country Journal, Jan. 30, 1790, at 1.
254 March 19, 1790. 3 PATRICK HENRY 417-18 (1951).
255 "A Well regulated militia is the best defence to a free people, a standing army in time of peace are not equal to a well regulated militia." Political Maxims, Independent Gazetteer, July 24, 1790, at 2, col. 1. "Where a standing army is established, the inclinations of the people are but little regarded." Political Maxims, Independent Gazetteer, July 31, 1790, at 2, col. 2.
256 E.g., Summary of the Principal Amendments Proposed to the Constitution, post May 29, 1790 MSS, College of W. & M., Tucker-Coleman coll., Box 39b notebooks, Notebook VI, at 212-22.
257 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS 335 (1836).
258 Id.
259 Id. at 336.
260 Providence Gazette and Country Journal, June 5, 1790, at 23.
261 Independent Gazetteer, Jan. 29, 1791, at 2, col. 3.
262 See 5 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 1458-59
(1986).
263 2 ANNALS OF CONGRESS 1804 (Dec. 16, 1790)
264 Id. at 1805-06
265 Id. at 1806.
266 Id. at 1806.
267 Id. at 1807-08.
268 Id. at 1808.
269 Id. at 1809.
270 Id.
271 Id.
272 Id. at 1821-22 (Dec. 22, 1790).
273 THE DIARY OF WILLIAM MACLAY 243,250 (1988).
274 Id. at 385, 395.
275 Id. at 245.
276 Id. at 246.
277 Id. at 246-47.
278 Id. at 101 n.7, 231.
279 Id. at 312.
280 Id.
281 1 Tucker, BLACKSTONE'S COMMENTARIES, App., 273 (1803).
282 Act of Massachusetts, 1809, c. 108.
283 E.g., Commonwealth v. Annis, 9 Mass. 31 (1812). See Militia, 34 Am. Dig. Cent. Ed. at 2878 ("Arms and Equipments").
284 307 U.S. 174, 178-182.
285 Id. at 178-179 (emphasis added).
286 18 U.S. 1.
287 Id. at 14.
288 Id. at 16-17.
289 Id. at 21.
290 Id. at 51-52.
291 94 Ill. 123, 34 Am. Dec. 213, 216.
292 Also relying on Houston v. Moore for the same proposition is People v. Hill, 126 N.Y. 497, 27 N.E. 789, 790 (1891). See State v. Johnson, 170 Wis. 218, 175 N.W. 589, 597 (1919) (state constitution allowing legislature to define the militia and federal Second Amendment indicate that "certain military policy is reserved to the states.")
293 34 Am. Dec. at 222.
294 116 U.S. 252, 264-65.
295 Id. at 265.
296 Local authorities have a traditional power to require citizens to arm themselves and assist in law enforcement. In United States v. Fenwick, 25 Fed. Cas. 1062, 1964 (Cir. Ct. D.C. 1836) the court instructed the jury "that the marshal has a right to take the posse, and to call on all citizens to aid him in arresting the rioters, and that the citizens had a right to arm themselves."
State law may require any person to arm and assist in law enforcement. "The militia are composed of men of military age, whereas the posse comitatus is composed of all able-bodied persons of sound mind and of sufficient ability to assist the sheriff, and may be younger or older than the military age." Worth v. Craven County Com'rs., 24 S.E. 778, 779 (N.C. 1896).
Chapin v. Ferry, 3 Wash. 386, 28 P. 754, 757 (1891) found that
a statute authorizing the sheriff or other officials to call out "an
armed force" to suppress rioters referred to the posse comitatus and
not the National Guard. The court noted that the statute
is merely the reenactment of the common law....It has always been the duty of magistrates and peace officers to preserve the public peace, even to the extent of calling to their aid every person within their jurisdiction ....That the force thus called out should be armed in some way would seem to go without saying....
Id. at 756.
297 250 N.Y. 14, 164 N.E. 726, 727.
298 Id.
299 293 U.S. 245, 265n.1.
300 Id. Besides the Second Amendment, the court cited as authority Houston v. Moore, 18 U.S. 1, 16-17 (1820), Dunne v. People, 94 Ill. 120, 129, 34 Am. Rep. 213 (1879), and Presser v. Illinois, 116 U.S.
252 (1885).
301 32 U.S.C. Section 101(4), (6).
302 32 U.S.C. Section 109©.
303 32 U.S.C. Section 702.
304 32 U.S.C. Section 701.
305 381 U.S. 41.
306 Id. at 46-47.
307 Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1857).
308 United States v. Cruikshank, 92 U.S. 542, 551, 553 (1876).
309 Presser v. Illinois, 116 U.S. 252, 265 (1886). Miller v. Texas, 153 U.S. 535, 538 (1894) repeats that "the restriction of" the Second and Fourth Amendments operate "upon the Federal power." In Cruikshank, Presser, and Miller, the Court refused to find First, Second, or Fourth Amendment protection against private conspiracies or state action, but did not consider whether the guarantees are incorporated into the Fourteenth Amendment so as to limit state action.
310 Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).
311 307 U.S. 174 (1939).
312 307 U.S. at 178. Since no factual record was made in the trial court that a "sawed-off" shotgun could have militia uses, the Court did not consider whether the tax and related registration requirements of the National Firearms Act violated the Second Amendment. However, the Court has held of a newspaper tax: "It is a license tax_a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution." Murdock v. Pennsylvania, 319 U.S. 106, 113 (1943). See Thomas v. Collins, 323 U.S. 527, 538-40 (1944) (state may not require registration of persons who exercise First Amendment rights); Minneapolis Star v. Minnesota Comm. of Rev., 460 U.S. 575 (1983) (special tax on only a few newspapers invalid).
313 307 U.S. at 178.
314 Id. at 179.
315 307 U.S. at 183 n.3.
316 2 J. Story, COMMENTARIES ON THE CONSTITUTION 646 (5th ed. 1891). "One of the ordinary modes, by which tyrants accomplish their purpose without resistance is, by disarming the people, and making it an offense to keep arms...." J. Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 264 (1893).
317 T. Cooley, CONSTITUTIONAL LIMITATIONS 729. T. Cooley, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW 281-282 (2d ed. 1891) states further:
The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
The right is General_It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent....But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people from whom the militia must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.
318 Valley Forge College v. Americans United, 454 U.S. 464, 484 (1982). The Court stated in Ullman v. United States, 350 U.S. 422, 426-29 (1956):
This constitutional protection must not be interpreted in a hostile or niggardly spirit....Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States....
As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion....To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.
319 Minneapolis Star v. Minnesota Comm. of Rev., 460 U.S. 575, 583-84 n.6 (1983).
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