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Is there Contrary Evidence of an Individual Right?

No, but that hasn't stopped people from trying to produce some. Typically, it is asserted that the Second Amendment was not intended to serve as a check against the potential of a tyrannical government, nor preserve any individual right whatsoever, and that any right to keep arms as referred to in the Second Amendment, applies only while serving active militia duty (such as in today's National Guard).

Not a Check Against a Tyrannical Government?

Historian Garry Wills has made an attempt at claiming the above. An online article, from the gun control group Join Together, reports Wills as writing "any claims that the Constitution ensures an armed citizenry as a bulwark against the potential tyranny of government is a myth [emphasis added]. 'You can't read the amendment apart from the body of the Constitution,' he wrote, 'and the body of the Constitution defines taking up arms against the United States as treason.' " [quoting Wills from his book, A Necessary Evil: A History of American Distrust of Government (1999)]

A myth? Not according to Supreme Court Justice Joseph Story (appointed by James Madison in 1811):

"The importance of this article [the Second Amendment] 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." [emphasis added]
         ---Commentaries on the Constitution of the United States, CHAPTER XLIV, AMENDMENTS TO THE CONSTITUTION
(Who's commentaries on the Constitution would you give greater weight to? Historian Wills', who has very strong opinions on gun owners and gun ownership, or Justice Story's?) [1]

Of course, it's not a right of insurrection or rebellion against a constitutionally elected government that the Second Amendment protects. As Justice Story writes, the right to keep and bear arms offers protection against "usurpations of power by rulers." In fact, "[t]he Governors of Virginia and Pennsylvania were ready to call out the militia if the Federalists in Congress usurped the election of 1800 and blocked the selection of Thomas Jefferson or Aaron Burr as president." (Guns, Words, and Constitutional Interpretation, Powe, L.A. Jr.)

Even James Madison, himself, wrote that the Constitution was "subject to the Revolutionary Rights of the people in extreme cases." [emphasis original] (James Madison to Daniel Webster, 15 Mar. 1833, Writings 9:604--5) James Wilson, another Founder, wrote, "a revolution principle certainly is, and certainly should be taught as a principle of the constitution of the United States, and of every State in the Union." (James Wilson, Of the Study of the Law in the United States, Lectures on Law 1791 Works 1:76--79)

None of this should be surprising, especially since the militia was initially relied upon as the "cornerstone of armed resistance to British policy" (question 3.6 from a militia FAQ). And when Congress was considering its first mlitia act, Congressman James Jackson (Georgia) commented on his vision of a militia:

"In a Republic every man ought to be a soldier, and prepared to resist tyranny and usurpation, as well as invasion, and to prevent the greatest of all evils--a standing army."
         ---"The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (at 1853).

The fact that the militia can be called out to either suppress insurrections or act as the check of last resort is by no means contradictory. Claiming the Second Amendment does not include a check against a tyrannical government because the Constitution provides a means of suppressing insurrections, or defines as treason the taking up of arms against the government, is a non sequitur.

To Keep and Bear Arms: No Private Right?

To Keep

Just as some anti-individual right proponents believe "the people" doesn't include people as individuals, incredulously, some writers claim "keep" doesn't mean what one would ordinarily think "keep" means. For example:

Claim: To "keep" arms in eighteenth-century usage meant to have them in one's personal possession.

Riposte: To "keep" arms in eighteenth-century usage meant to hold them in a communal military arsenal.
(Disarmed by Time: The Second Amendment and the Failure of Originalism, Farber, Daniel A.)
The following laws not only contradict the above fanciful "riposte," but show that non-militia members as well, were expected to "keep" arms at home:
"That all persons though ffreed from Training by the Law yet that they be obliged to Keep Convenient armes and ammunition in Their houses as the Law directs To others." 1 The Colonial Laws of New York.

Persons exempted from enrollment and service in the militia were "required and enjoyned to provide and keep at their respective places of abode ... arms and ammunition." 3 Laws of Virginia.
(The Right to Arms: Does the Constitution or the Predilection of Judges Reign? Dowlut, Robert.)

Forced Communal Storage of Colonial Arms?

In its brief in the Emerson case, the Center to Prevent Handgun Violence (CPHV) claims, "Colonial legislatures from New Hampshire to South Carolina imposed communal storage of firearms and permitted them to be removed only in times of crisis or for muster day. See Harold L. Peterson, Arms and Armor in Colonial America 1526-1783 321-335 (1956)." However, the citation does not check out. The only hint of communal or compulsory storage in that citation is for arms and ammunition that were purchased by state or local legislatures, or supplied by the King. Click on the citation and see for yourself. The CPHV's claim is similar to asserting books are kept communally after only examining our public library system. Actually, the citation notes many instances of personal firearms ownership or statutes where enlisted men were expected to provide themselves with arms. (History professor Michael Bellesiles makes the same claim with the embellishment that "legislators feared that gun-toting freemen might, under special circumstances, pose a threat to the very polity they were supposed to defend. Colonial legislatures therefore strictly regulated the storage of firearms, with the weapons kept in some central place, to be produced only in emergencies or on muster day, or loaned to individuals living in outlying areas. They were to remain the property of the government." [Arming America, p. 73] Bellesiles cites the same Arms and Armor source as well as several others. His citations are every bit as misleading as the latter, and more. His claims and citations deserve and warrant a separate page which can be viewed here.)

Throughout the Colonial period, private ownership and possession of arms was compulsory or encouraged. A smattering of quotes demonstrating this is shown:

"It is further ordered that each inhabitant in this corporation that according to order is to provide and keep Armes, shal provide four pounds of bullets and one pound of powder; and that the chief military officers in each towne shall have power by themselves either by requireing the souldires to appeare at a time and place appointed with their Armes and amunition or by sending forth the clarke to veiw the said amunition..."

--- The Public Records of the Colony of Connecticut, vol. 2, pp. 19-20
"Provided always, and be it enacted, That eighteen months time be given and allowed to each trouper and ffoot soldier not heretofore listed to furnish and provide himself with arms and ammunition according to this act, & that no trooper or foot soldier be fined for appearing without or not having the same at his place of abode untill he hath been eighteen months listed..."

--- The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 6, p. 338
"That every listed souldier and other house-holder (except troopers) shall always be provided with and have in continual readiness, a well-fixed firelock... [and fines levied] for want of such arms and ammunition as is hereby required..."

--- The Public Records of the Colony of Connecticut, vol. 8, p. 380
"For as much as a great Number of Men who shall inlist, or be engaged in the Forces in the Pay of this Province, will be possessed of good Arms of their own, which it is apprehended they will prefer to those furnished by the Crown, not only from their being much lighter, but as from their being accustomed to them, they will be much surer of their mark with those, than with Arms they never handled before... And as a Powder-Horn, Shot-Bag, with a Case for the Lock of their Gun, to preserve it from the Weather, are thought more proper for the present Service than the common Accoutrements, the Men are also to come provided therewith."

--- "Lieutenant Governor and Commander in Chief, in and over the Province of New York, and the Territories depending theron in America," Muster rolls of New York provincial troops 1755-1764, vol. 12, p. 514
[Named militia officers from the various townships in which they reside are] "authorized... to proceed from House to House thro' their respective districts and purchase at the cheapest Rate they can be obtained for ready money all such good musketts and firelocks fit for the use of Soldiers, as can be spared by the Inhabitants of the Townships--That those Gentlemen respectively be requested not only to purchase arms as cheap as they reasonably can, but in no case to exceed the price of four pounds for any one Gun Muskett or Firelock...And it is hearby recommended to the Inhabitants of the said Townships to sell such musketts or firelocks as they can spare retaining arms for their own use."

--- Documents of the Colonial History of New York, vol. 15, p. 103
Private ownership of military weapons for military purposes continued to be enforced or encouraged during the post-Revolutionary period as well:
"Provided, That the militia of the counties westward of the Blue Ridge, and the counties adjoining thereto, shall not be obligated to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer."

--- The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 12, p. 12
Comments of two Founders while discussing the organization of the Nation's first militia:
"[S]ubjecting the whole body of the people to be drawn out four or five times a year was a great and unnecessary tax on the community...As far as the whole body of the people are necessary to the general defence, they ought to be armed; but the law ought not to require more than is necessary; for that would be a just cause of complaint."

--- Representative Thomas Fitzsimons (Pennsylvania) "The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (at 1852).
"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."

--- Representative Roger Sherman (Connecticut) "The Debates and Proceedings in the Congress of the United States," Gales and Seaton, pub., 1834 (at 1854).
The first federal militia statute:
"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt..."
--- Militia Act of 1792
"Return of the Adjutant General of the enrolled militia in Pennsylvania, which contained an inventory of the supply of arms (of all types) available for militia use. The editor of the Democratic Press described the Return in these words:"
"Our stock of Public Arms are respectable but it is still more gratifying to observe the number of Private Arms returned. There are no less than twelve thousand six hundred and seventy-eight Rifles reported as private property, and two thousand and thirty-eight public rifles .... Sharp Shooting, Good Marksmanship, is eminently a trait in the American Character ...."
--- DEMOCRATIC PRESS (Phila.), Mar. 8, 1823, at 2. (Source)
Of course some gun control advocates claim since gun registration was sanctioned then (as the previous quote demonstrates), it should certainly be acceptable today. However, the context is completely different – in the past, ownership of militia weapons was encouraged, today it is practically forbidden.

To Keep-up a Militia?

Wills, in an article titled, "To Keep and Bear Arms" (The New York Review of Books, September 21, 1995), writes, "[g]un advocates read 'to keep and bear' disjunctively, and think the verbs refer to entirely separate activities. 'Keep,' for them means 'possess personally at home'--a lot to load into one word. To support this entirely fanciful construction, they have to neglect the vast literature on militias." (Emphasis added.) (Click here to see Wills' entire comments regarding "keep.")

What's fanciful is Wills' hypothesis. It is certainly plausible to claim a phrase means something different from each of its individual words separately. (It's especially tempting when one doesn't like the implications of the words taken at their plain meaning.) However, in this case, Wills ignores the vast body of contrary evidence and offers nothing credible to support his claim.

Wills writes, "To understand what 'keep' means in a military context, we must recognize how the description of a local militia's function was always read in contrast to the role of a standing army." Armies were not kept-up or left standing, militias were kept in readiness. This is true, however unfortunately for Wills, "keep" modifies arms in the Second Amendment, not the well-regulated militia, and as one can see from the examples above, keeping arms in a military contex, when referring to the right of the people, means to personally keep. The people's right to keep arms was guaranteed, against infringement by the federal government, to ensure that the militia could be kept-up.

Summarizing how militias operated in England, and quoting at length from an essay written by Englishman John Trenchard, in 1697 (yes, 1697), Wills tries to draw a parallel between the English and American systems by quoting from the Articles of Confederation:

"[E]very state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and equipage."
He continues, "Thus it is as erroneous to suppose that 'keep' means, of itself, 'keep at home.'" "Keep-up" modifies militia. To repeat again (since Wills makes the same mistake), the meaning of the word keep will of course vary depending on its context and what it modifies. "Keep" in and of itself will not always mean "keep at home" or more precisely keep as an individual. And neither does the fact that the colonies or states had public arsenals imply the right of the people to keep and bear arms is protecting a right to keep arms publicly rather than private arms. The Articles of Confederation provision, which directs the states to provide a "proper" amount of arms is constructed quite differently from the Second Amendment which is meant to preserve the right of the people to keep arms.

Wills also tells us that it is erroneous to assume "'arms' means only guns: As Patrick Henry tells us, the militia's arms include 'regimentals, etc.'--the flags, ensigns, engineering tools, siege apparatus, and other 'accoutrements' of war." Wills has twisted Patrick Henry's statement that refers to arms and equipment in a desparate attempt to show the Founders could not have intended the keeping of arms to be a personal, private right. (Henry's full statement, in context can be viewed here.) (For a quote that not even Wills could twist, see Roger Sherman's comment above, which refers to arms. ("There are so few freemen in the United States who are not able to provide themselves with arms and accoutrements...")

"In America, 'deposition' of arms from the proper hands occurred, most famously, when the King's troops seized the militia's arsenals at Concord in the north and at Williamsburg in the south. That is where arms were kept, lodged, maintained." Again, more twisting from Wills. The historical record suggests otherwise.

There were few arms stored publicly at Concord. Most were privately held, but significant provisions for food, ammunition and powder, and a small number of cannon, were stockpiled in public storage. (See Lemuel Shattuck [hereinafter Shattuck], "A history of the town of Concord, Middlesex County, Massachusetts." Reprint, The Printery [1971]. Originally published: Russel, Odiorne, and Co.; Concord: J. Stacy, 1835. Pp. 93-99.) Shattuck (p. 99) also writes, "The excitement was so great that some carried their guns with them at all times, even while attending public worship on the Sabbath."

Wills concludes, "To separate one term from this context and treat it as specifying a different right (of home possession) is to impart into the language something foreign to each term in itself [emphasis added], to the conjuction of terms, and to the entire context of" the Second Amendment.

Just the quotes from this page, contradict Wills' conclusion, and show that "keeping arms," within the context of the Second Amendment, refers to a private right to possess and own arms in one's dwelling. Also one can see that "arms" signified personal arms such as firearms and swords. Wills musters only one quote that mentions keeping arms (in a parish!) from a late-17th century essay on English militias. The keeping of arms by the people, as individuals, was either encouraged or mandatory for militia members, potential members, and served as an additional source of arms for the militia during emergencies.


The CPHV's brief, cited above continues, "Even during the American Revolution, Connecticut and North Carolina impressed firearms without hesitation (citations omitted). Consistently, individual gun possession yielded to collective needs."

In emergencies, guns were impressed, but so were many other items as well as people (not just solidiers). (See The Statutes at Large, Being a Collection of All the Laws of Virginia, vol. 7, pp. 26-7, The Public Records of the Colony of Connecticut, vol. 10, pp. 479-80. Also, "In times of emergency, the law [of South Carolina] allowed the impressment of supplies, vessels, wagons, provisions, supplies of war, ammunition and gunpowder and such other items as the militia might require. If ships of any description were required, their pilots and sailors could be impressed." [Whisker, James, Militia Treatises, vol. 5])

In emergencies (whether real or perceived) our government occasionally resorts to extreme measures such as impressment, or restrictions on civil rights. A more recent example is the "day of infamy" where Americans of Japanese descent were ordered excluded from the West Coast (Korematsu v. United States, 323 U.S. 21 (1944). See also, Hirabayashi v. United States, 320 U.S. 81 (1943), upholding earlier curfew applying to American citizens of Japanese descent). In emergencies, the right to keep arms has no more "yielded to collective needs" than many other individual rights.

Active Militia Members Only?

Some anti-individual right proponents claim today's Second Amendment only protects gun ownership when actively serving in a militia such as today's National Guard. This is usually rationalized by claiming either the militia equals the people, or the militia clause restricts gun ownership to "members only."

The militia and the people were roughly equivalent, but not identical. The "people," as referred to throughout the Bill of Rights were considered freemen as individuals, not militia members. Thus the term people has a wider scope than militia members which were typically from the age of majority to forty-five or fifty years of age. However people older than fifty, if they were capable of bearing arms, could volunteer for militia duty (for example see Shattuck, p. 93), and of course they had the right to keep arms. And, as we know, the right to keep and bear arms refers to the people not the militia. Not all people were militia members.

Instead of the "right of the people," the Amendment's drafters could have referred to the militia or active militia members, as they did in the Fifth Amendment, had they meant to restrict the right. (Additionally, see GunCite's page here showing evidence that the term, "people," as used in the Bill of Rights, referred to people as individuals.)

Was the militia clause meant to be restrictive? There is no evidence that was the intention. The writings of three constitutional commentators, who were contemporaries of the Founders, provide very strong evidence to the contrary. If the militia clause had meant to be restrictive rather than merely stating a rationale or purpose, it's hard to believe that these three jurists would misconstrue the intent and meaning of the Second Amendment:

(For further comment on the effect of the preamble [the militia clause], see the Fifth Circuit Court's opinion in the Emerson case [scroll down to the section labeled "2. Effect of Preamble."] [(PDF format)])


After examining the text, laws and customs of the time, and the words of the Founders and their contemporaries, the narrowest plausible reading of the Second Amendment is that it was meant to preserve and guarantee an individual right for a collective purpose. (That does not transform the right into a "collective right" or the right of a "collective.") The militia clause was a declaration of that purpose, and the clause following was the method the framers chose to, in-part, ensure the continuation of a well-regulated militia.

A Collection of Anti-individual Right Law Journal Articles

Symposium on the Second Amendment: Fresh Looks, vol. 76, 2000:

Carl T. Bogus, Symposium Editor, The History and Politics of Second Amendment Scholarship: A Primer: 3.

Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective: 27.

Michael A. Bellesiles, The Second Amendment in Action: 61.

Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism: 103.

Daniel A. Farber, Disarmed by Time: The Second Amendment and the Failure of Originalism: 167.

Paul Finkelman, "A Well Regulated Militia": The Second Amendment in Historical Perspective: 195.

Steven J. Heyman, Natural Rights and the Second Amendment: 237.

Michael C. Dorf, What Does the Second Amendment Mean Today?: 291.

Robert J. Spitzer, Lost and Found: Researching the Second Amendment: 349.

H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate: 403.

See also these Second Amendment articles from the Legal Action Project.

[1] Wills' answer to the Justice Story reference:
The second authority appealed to is Supreme Court Justice Joseph Story, who was an important constitutional interpreter. Story said in his 1833 Commentaries on the Constitution of the United States and his 1840 Familiar Exposition of the Constitution [a one-volume, popular abridgement of Commentaries], the Second Amendment "offers a strong moral check against the usurpations and arbtrary power of rulers" (emphasis added). It does this, first, because the militia makes it unnecessary to "keep up large military establishments and standing armies in time of peace" (emphasis added) and, second, makes it possible to resist such usurpation if it does occur. Sanford Levinson [The Embarrassing Second Amendment] and others take this to mean that Story is defending insurrection, though the emphasis in both commentaries is on a "moral check." But even if Story is defending insurrection, he does not consider how that can be reconciled with the passages in the Constitution that forbid it. Moreover, important as he is in constitutional thought, Story is hardly infallible, as we can see from his interpretation of the First Amendment, that it means "Christianity ought to receive encouragement from the states." Madison would not have agreed with that. Neither would Levinson. The argument from authority cannot be made a substitute for the evidence of the document itself.
         ---(A Neccessary Evil, p. 215)
First, Story is clearly justifying the use of force against an usurpation. After the phrase Wills partially quotes, (the full phrase is, "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;"), the rest of the sentence makes it obvious that Story is writing about more than just a "moral check" -- "and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

Second, Wills has twisted Story's words in an attempt to impugn Story's ability to interpret the Constitution. He quotes Story as interpreting the first Amendment to mean "Christianity ought to receive encouragement from the states." However, Story's full comment is, "Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship." And, "An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."

Regardless of whether Story believes that "Christianity ought to receive encouragement from the states," it's irrelevant, since at that time, the Constitution clearly did not forbid the states from encouraging Christianity, but Congress was prohibited, and that is exactly what Story says -- "the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions..." Thus, Story's interpretation of the Constitution was correct, regardless of his personal policy views.

The First Amendment was not applied to the states until long after the Fourteenth Amendment was passed (and the Fourteenth Amendment was not passed until long after Story's time). ("It is only in recent years that the freedoms of the First Amendment have been recognized as among the fundamental personal rights protected by the Fourteenth Amendment from impairment by the states." -- U.S. Supreme Court: JONES v. CITY OF OPELIKA, 319 U.S. 105 [1943])

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