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Quotes from Constitutional Commentators

Quotes from St. George Tucker, William Rawle, Justice Story, and Thomas Cooley appear here.

St. George Tucker

The following is excerpted from The Right to Arms: Does the Constitution or the Predilection of Judges Reign? by Robert Dowlut (Copyright © 1983 Oklahoma Law Review).

Saint George Tucker (1752-1828) served as a colonel in the Virginia militia, was wounded in the Revolutionary War, was a law professor at William and Mary, and later was a justice on the Virginia Supreme Court from 1804 to 1811. He was also a friend of Thomas Jefferson. In 1803 he published a five-volume edition of Blackstone's Commentaries on the Laws of England.

To Blackstone's listing of the "fifth and last auxiliary right of the subject ... that of having arms ... suitable to their condition and degree, and such as are allowed by law," Tucker in a footnote added: "The right of the people to keep and bear arms shall not be infringed." He cited the second amendment, noting that it is "without any qualification as to their condition or degree, as is the case in the British government." He added: "Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England." In discussing the second amendment, Tucker wrote:

"This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."
Tucker thus merged self-defense, prevention of standing armies, and protection from oppression all into a single concept--the generalized right of keeping and bearing arms as protected by the second amendment.
More St. George Tucker from the appendix of Blackstone's Commentaries on the Laws of England (1803),
"Here, let us again pause, and reflect, how admirably this division, and distribution of legislative power is adapted to preserve the liberty, and to promote the happiness of the people of the United States... Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people:..."

"The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people;..."

"If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act."

William Rawle

In 1791 William Rawle was appointed as a United States Attorney for Pennsylvania by President George Washington, a post he held for more than eight years. He had also been George Washington's candidate for the nation's first attorney general, but Rawle declined the appointment. Rawle's "A View of the Constitution of the United States of America" (1829), was adopted as a constitutional law textbook at West Point and other institutions. He describes the scope of the Second Amendment's right to keep and bear arms. (Rawle's comments quoted from Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984.)

"the powers not delegated to congress by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people[quoting the 10th Amendment]. What we are about to consider are certainly not delegated to congress, nor are they noticed in the prohibitions to states; they are therefore reserved either to the states or to the people. Their high nature, their necessity to the general security and happiness will be distinctly perceived."

"In the second article, it is declared, that a well regulated militia is necessary to a free state; a proposition from which few will dissent. Although in actual war, in the services of regular troops are confessedly more valuable; yet while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulation as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest."

"The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed."

"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

"In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and is cautiously described to be that of bearing arms for their defence,'suitable to their conditions, and as allowed by law.' An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws."

Rawle stresses the importance of the militia as a safeguard against a standing army, but he is also clear in pointing out that the right of individuals to keep and bear arms, shall not be infringed, period, regardless of usage, as it was arbitrarily restricted by hunting laws in England.

Over time, it is the fusion of the militia clause and the broad scope of the right to keep and bear arms that has caused many people to misunderstand the Second Amendment. Many of the Founders and commentators were concerned about the militia, but this was never meant to restrict the right to keep and bear arms to military purposes only. Remember the prohibition against infringement was meant to be "general"

Joseph Story

Justice Story was appointed to the Supreme Court as an Associate Justice by James Madison in 1811. In 1833 he wrote, "Commentaries on the Constitution of the United States" His comments on the Second Amendment follow.

"The next amendment is: '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 importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.(1) And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid." _______________________________

(1) 1 Tucker's Black. Comm. App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd's Debates, 219, 220.

Thomas Cooley

Michigan Supreme Court Justice Thomas Cooley was probably the leading constitutional commentator of the late 1800s. In 1898 he wrote Principles of Constitutional Law. He comments below on the right to keep and bear arms.

"The Constitution. -- By the Second Amendment to the Constitution it is declared that "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 amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. 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. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. 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, but this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order."

"Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them."

"What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited."

Note, Thomas Cooley writes concealed carry of certain weapons may be prohibited. Yet pistols have always been militia type weapons. Does this mean it's okay by Cooley to carry concealed a militia type pistol, but not a "Saturday Night Special?"

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