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[Copyright © 1982 Northern Kentucky Law Review. Originally published as 10 N. Ky. L. Rev. 63-96 (1982). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

TO PRESERVE LIBERTY--A LOOK AT THE RIGHT TO
KEEP AND BEAR ARMS

by Richard E. Gardiner[*]

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.

In the last several decades, a vocal minority, popular with the major news media, has put forth a distorted interpretation of the second amendment to the United States Constitution for the avowed political purpose of removing an obstacle from the path leading toward their goal of depriving private citizens of some or all of their firearms. And, as with virtually all attempts to minimize those precious freedoms guaranteed each American by the Bill of Rights, that minority has twisted the original and plain meaning of the right to keep and bear arms. In this article, an unfortunately brief exposition given the fact that a complete discussion of the right to keep and bear arms would necessitate a multi-volume work, I will attempt to set out the historical development of the right to keep and bear arms so as to clarify the intentions of the Framers of the second amendment and will discuss and critically comment upon some of the more significant cases decided pursuant to that amendment.

By way of introduction to this discussion, it should be kept in mind that, in construing the Constitution, it is particularly important that the values of its Framers, and of those who ratified it, be applied, and that inferences from the text and historical background of the Constitution be given great weight. Thus, the precedential value of cases and the light shed by commentators with respect to any particular provision of the Constitution tends to increase in proportion to their temporal proximity to the adoption of the main body of the Constitution, the Bill of Rights, or any other amendments.[1] That being so, it is appropriate first to examine the development of the right to keep and bear arms prior to the adoption of the second amendment.(p.64)

I. Common Law Development of the Right to Keep and Bear Arms

The right to keep and bear arms, like the other rights guaranteed by the Bill of Rights,[2] was not created or granted by the second amendment. Rather, this fundamental, individual right, largely developed in English jurisprudence prior to the formation of the American Republic, pre-dates the adoption of the Constitution and was part of the common law heritage of the original colonies.[3] It is thus to this common law heritage that one must look to begin to understand the right to keep and bear arms. In doing so, it is, however, important to remember that the doctrine which justifies recourse to the common law in order to better understand the guarantees of the Constitution "is subject to the qualification that the common law rule invoked shall be one not rejected by our ancestors as unsuited to their civil or political conditions."[4] Thus, although a constitutional guarantee's "historic roots are in English history, it must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system."[5]

As a consequence, the common law serves only as a starting point in the interpretation of constitutional guarantees. It may not be invoked to abrogate express constitutional guarantees because "[a]t the Revolution we separated ourselves from the mother country, and ... established a republican form of government, securing to the citizens of this country other and greater personal rights, than those enjoyed under the British monarchy."[6]

One of the clearest expositions of the common law, as it had developed (p.65)by the mid-eighteenth century, came from Sir William Blackstone who, because he was an authoritative source of the common law, was a dominant influence on the Framers of the Constitution. He set forth the absolute rights of individuals, "those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy,"[7] as personal security, personal liberty, and possession of private property. These absolute rights were ultimately protected by the individual's right to have and use arms for self-preservation and defense.[8] As Blackstone observed, individual citizens were entitled to exercise their "natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression."[9]

Blackstone was not alone in this view. In his Pleas of the Crown, Hawkins noted that "every private person seems to be authorized by the law to arm himself for [various] purposes."[10] Sir Edward Coke likewise wrote that "the laws permit the taking up of arms against armed persons."[11] This absolute and inalienable right (p.66)of self-defense,[12] so clearly recognized by the common law, stemmed from the natural law[13] which permits legitimate defense of life and rights equivalent thereto, including the slaying of an unjust aggressor by the use of the force necessary to repel the danger.[14] The natural law permitted such defense not only because, in the conflict of rights, the right of the innocent party should prevail, but because the common social good would also suffer if the right were not recognized.

Cicero, the great legal philosopher of republican Rome and a source for the Framers' understanding of the natural law, recognized the right to be armed to resist violent attacks and robbery:

And indeed, gentlemen, there exists a law, not written down anywhere but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. When weapons reduce them to silence, the laws no longer expect one to await their pronouncements. For people who decide to wait for these will (p.67)have to wait for justice, too--and meanwhile they must suffer injustice first. Indeed, even the wisdom of the law itself, by a sort of tacit implication, permits self-defense, because it does not actually forbid men to kill; what it does, instead, is to forbid the bearing of a weapon with the intention to kill.[15]

John Locke, too, upheld the right of potential victims to resist deadly attack with force when he observed that "the law could not restore life to my dead carcass."[16]

In addition to the right of self-defense, a right which would be meaningless for most people without the right to use arms, there also existed in English law, prior to the formation of the American Republic, a positive duty of most able-bodied freemen to keep, and be prepared to bear and use, arms both for military and law enforcement purposes. Such a duty was deeply imbedded in English and Germanic history and indeed antedates the invention of firearms.[17]

In the years prior to the Norman Conquest, "every free subject in the realm, whatever his primary function, was legally bound, whenever the need arose, to take arms to defend his king and his homeland."[18] That obligation, which was necessitated by the absence of a standing army and a police force, was fulfilled by serving in the "fyrd" or people's army, whose functions were "to safeguard the shire [county] from invasion, to suppress riots, and arrest criminals."[19]

Because one of the functions of the fyrd was to repel invaders, the early Norman conquerors attempted to suppress the fyrd while consolidating their power over the defeated Saxons. In 1181, however, in an attempt to recreate the fyrd and thus reinstitute the freeman's duty to defend his home, thereby vitiating the need to raise and maintain a standing army, Henry II (1154-1189) instituted the first Assize of Arms which required "the whole body of (p.68)freemen" to possess certain arms and armour in proportion to their wealth which could not be sold, pledged, offered or otherwise alienated and of which a lord could not "in any way deprive his men."[20] In 1252, another Assize of Arms under Henry III (1216-1272) expanded the duty of keeping arms to include not only freemen, but also villeins, the English equivalent of serfs, so that all "citizens, burgesses, free tenants, villeins and others from 15 to 60 years of age" were obliged to be armed.[21] This Assize, unlike its predecessor, had a strong emphasis on the law enforcement duties of the average citizen. Thus, in addition to the requirement of possessing certain arms, the Assize established a system of "watch and ward" which mandated each city to have armed men on guard at night to arrest strangers and give the "hue and cry" to summon assistance from other citizens if anyone resisted arrest or escaped from custody. Under Edward I (1272-1307), to ensure that the requirements of the earlier Assizes were being fulfilled "for to keep the peace," the Statute of Winchester was enacted and mandated a viewing by a local authority of every man's arms twice a year.[22] In addition, because under Henry III's Assize, criminals had simply been run out of the city and not pursued and arrested, thus allowing them to escape punishment and continue their activities, the requirements of an earlier statute, which imposed a fine upon those who did not assist in the apprehension of criminals, were reenacted.

In later years, the Tudor kings began the first attempts to impose limits upon the use and possession of weapons; in particular, crossbows and the then-new firearms. These measures were not, however, intended to disarm the citizenry (who made up the bulk of the military forces) but rather to prevent their being diverted from practice with the longbow (the primary English military weapon since it could be fired relatively rapidly and penetrate chain mail at as much as 400 yards) by sport with crossbows and firearms which, at the time, were less effective for military purposes.[23] Such laws were also intended to restrict the hunting of (p.69)game to the king and the landed gentry. Thus, when in 1503, Henry VII (1485-1509), after observing that "shotyng in Longe Bowes hathe ben moche used in this ... Realme, wherby Honour & Victorie hathe ben goten ageyne utwarde enymyes & the Realme gretly defended," limited shooting (but not possession) of crossbows to those with land worth 200 marks annual rental and those who had a license from the king, an exception was provided for those who "shote owt of a howse for the lawefull defens of the same."[24] In 1511, Henry VIII (1509-47), noting that "good Archers" had "defended this Realme", instituted a requirement of long-bow ownership, requiring all able-bodied men to "use and ex[er]cyse shootyng in longbowes, and also to have a bowe and arrowes redy contynually in his house to use hymself and do use hymself in shotyng"; fathers were also required to provide bows and arrows for their sons between the ages of 7 and 14 and to train them in longbow use. In addition, because "so meny men have opteyned license to shote in Crosebowes ... And many men p[r]tendyng to have landes & tenements to the yerely value of [200] marks shote dayly in Crosebowes", the property requirement was increased to 300 marks.[25]

In 1514 the limitation on shooting of crossbows was extended to include firearms since many people "not regarding nor fering the penalties of the [earlier statute] use daily to shote in Crosebowes and hand gonnes;" and for the first time, persons not meeting the property requirement were prohibited from possessing crossbows and "hand gonnes" (which at that time meant any firearm carried by hand, as distinguished from cannon).[26] There were, however, exceptions to the prohibition for those who lived near the sea or Scotland and for those who had licenses issued by the king, thereby emphasizing that the purpose of the law was primarily to protect the king's deer and to encourage "shoting in long bowes." (p.70)Nine years later, however, Henry reduced the property qualification to 100 pounds per year[27] and in 1533 expanded the areas exempted from the prohibitions of the law to include the counties of Northumberland, Durisme, Westmoreland, and Cumberland. In 1541, realizing that his subjects possessed and used firearms for recreation and defense in spite of his efforts, Henry repealed all the former statutes and prohibited only the carrying of loaded firearms on a "Jorney goinge or ridinge in the Kings highe waye or elsewhere;" the prohibitions on keeping and shooting firearms were limited only to firearms smaller than "the lenghe of one hole Yard" for some and "thre quarters of one Yarde" for others. As the statute makes clear, he did so because it was recognized that exercise in the shooting of firearms (which by then were no longer considered merely ineffective sporting items) by the citizens "may the better ayde and assist to the defence of this Realme...."[28]

In 1670, after centuries of requiring citizens to possess and be exercised in the use of arms so as to vitiate the necessity for both a standing army and a police force, Charles II (1660-1685) instituted the Act for the Better Preservation of the Game,[29] which prohibited the possession of guns and bows and thus, for the first time in English history, denied most citizens the common law right to possess arms other than knives and swords. This statute, which followed earlier actions by Charles disarming the remnants of Cromwell's republican army as well as any other persons suspected of not being loyal to the crown, and which ran directly contrary to the common law, were a means of consolidating Charles' power by removing from the citizenry their ability to oppose his tyranny.[30] As Blackstone observed of the purpose of the Game Acts: "For (p.71)prevention of popular insurrections and resistance to the government, by disarming the bulk of the people; which last is a reason oftener meant, than avowed, by the makers of forest or game laws."[31]

Nonetheless, Charles' game acts were interpreted and enforced by the courts so as not to abrogate the common law right to possess guns.[32] For example, Rex v. Gardner[33] held that the Game Acts did "not extend to prohibit a man from keeping a gun for his necessary defence...."[34] Demonstrating the courts' reluctance to enforce the Game Act, Justice Page noted that "keeping a lurcher, without using it in killing game, was not within the Statute of Car. 2, though it be expressly named therein." Likewise, referring specifically to the acts of Charles II,[35] and Anne,[36] the court held that "as these acts restrain the liberty which was allowed by the Common law," they "ought not to be extended further than they must necessarily be."[37] Malloch v. Eastly[38] similarly held that "the mere having a gun was no offense within the game laws, for a man may keep a gun for the defence of his house and family...."[39] Several years later, the court stated: "It is not to be imagined, that it was the intention of the Legislature ... to disarm all the people of England ... as a gun may be kept for the defence of a man's house, and for divers other lawful purposes...."[40]

The Statute of Northampton, which provided that no man should "go nor ride armed by night or by day in fairs, markets, nor (p.72)in the presence of the justices or other ministers,"[41] and thus dealt only with the bearing of arms in public places, not the keeping of arms, was also given a very narrow reading by the courts in that they required proof that the carrying of arms was to "terrify the King's subjects."[42] Moreover, there was recognized a "general connivance to gentlemen to ride armed for their security."[43] In Rex. v. Dewhurst,[44] it was held that the law went only so far as prohibiting a person "to carry arms to a public meeting, if the number of arms which are so carried are calculated to produce terror and alarm...."[45] Thus, in addition to having "a clear right to arms to protect himself in his house," a person had "a clear right to protect himself when he is going singly or in a small party upon the road...."[46] Rex v. Mead,[47] likewise held that it was "a great offense at common law" to "go armed to terrify the King's subjects," and that the Statute of Northhampton, as construed in Rex v. Knight,[48] was "but an affirmance of the law."[49]

Succeeding Charles II was James II (1685-1688) who attempted to expand the royal standing army and continued many of the repressive policies of Charles; moreover, because he was a devout Catholic, such policies were directed primarily against Protestants. James' brief rule ended, however, with the Glorious Revolution of 1688 and James' abdication.

Since one of the goals of the Glorious Revolution was to reinstate the right of Protestants to have arms, a right of which they had been deprived to prevent resistance to James' repressive policies, when the throne was offered to William and Mary, it was offered subject to their acceptance of the rights, including the right of Protestants to have arms, laid down in a Declaration of Rights. After they ascended the throne and Parliament was formally convened, the Declaration was enacted into law.[50](p.73)

The first part of the Declaration consisted of the specific acts by which James II had subverted "the Laws and Liberties of this Kingdom." In that part is found the complaint: "By causing several good Subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed, contrary to Law." As a consequence, the second part listed among other "true, ancient, and indubitable rights" that "the subjects which are Protestant may have arms for their defence suitable to their conditions and as allowed by Law."[51] Since only slightly over two percent of the population was then Catholic (and they, even as enemies of the state, were given limited rights to keep arms), this amounted to a general right to keep arms.

In sum, by the time of the American Revolution, English law had developed a tradition of keeping and bearing arms which stretched back almost a millenium, a tradition which was retained and protected by the courts even during the brief eighteen year period in which the common law right of most citizens to possess and use arms other than knives and swords was extinguished by statute.[52] And it was within this tradition of the individual's right to have and use arms for his own defense, as well as to enable him to contribute to the defense of the nation, that the spark which ignited the american Revolution was struck when the British, by attempting to seize stores of powder and shot in Concord and seeking to disarm the inhabitants of Boston, sought to deny the Massachusetts colonists the ability to protect their rights.

II. The History of the Second Amendment

The history of the second amendment indicates that its purpose was to secure to each individual the right to keep and bear arms so that he could protect his absolute individual rights as well as carry (p.74)out his obligation to assist in the common defense. The Framers did not intend to limit the right to keep and bear arms to members of a formal military body, but rather intended to ensure the continued existence of an "unorganized" armed citizenry prepared to assist in the common defense against a foreign invader or a domestic tyrant.[53]

Subsequent to the American Revolution, which had, to a large extent, been fought by citizen soldiers, it was agreed that the Articles of Confederation were in need of revision to strengthen the structure of the new nation. Once assembled in Philadelphia to write what ultimately became the Constitution, one of the gravest problems faced by the Framers was whether the federal government should be permitted to maintain a standing army. Because of the lessons of history (particularly the reigns of Charles II and James II) and their personal experiences in and prior to the Revolution, the Framers realized that although useful for national defense, the standing army was particularly inimical to the continued safe existence of those absolute rights recognized by Blackstone and generally inimical to personal freedom and liberty.

Unwilling, however, to forgo completely the national defense benefits of a standing army, the Framers developed a compromise position, wherein the federal government was granted the authority to "raise and support" an army, subject to the restrictions that no appropriation of money for the army would be for more than two years and that civilian control over the army would be maintained.[54] Furthermore, knowing that the militiaman or citizen soldier had made possible the success of the American Revolution, and recognizing that the militia would be the final bulwark against both domestic tyranny and foreign invasion, the Framers divided authority over the militia,[55] empowering Congress to "govern ... (p.75)[only] such part of them [the militia] as may be employed in the Service of the United States ...," and leaving to the states "the Appointment of the Officers, and the Authority of training the militia...."[56] It is thus evident, from the underscored language of Clause 16, that, in addition to that part of the militia over which the Constitution granted Congress authority, there exists a residual, unorganized militia that is not subject to congressional control.[57]

This distinction was first codified, to some degree, in the Militia Act of 1792[58] which defined both an "organized" militia and an "enrolled" militia. (It also required officers and dragons to be armed with "a pair of pistols.") The "unorganized" or "enrolled" militia, whose members were expected to be familiar with the use of firearms and to appear bearing their own arms,[59] were not actually in service, but were nonetheless available to assist in the common defense should conditions necessitate either support of the organized militia or possibly defense against a standing army or even the organized militia.[60](p.76)

When the proposed Constitution was sent to the states for ratification, Antifederalists (the popular name for those opposing the Constitution) were concerned that in spite of the restrictions in the Constitution, a federal standing army which would threaten the hard-won liberties of the people, might still exist. To mollify those fears, James Madison discussed, in the Federalist No. 46, how a federal standing army, which he estimated in 1788 would consist of "one twenty-fifth part of the number able to bear arms," might be checked or controlled:

To these [the standing army troops] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, ... the governments [of Europe] are afraid to trust the people with arms.[61]

Moreover, the Antifederalists were concerned about the distribution of power over the militia between the federal government and the states.[62] This concern centered on the fear of the Antifederalists that Congress was given a power which might be used to effectively disarm the militia thereby negating any potential use of the militia to oppose a standing army.[63] That that fear was genuine is (p.77)apparent from the history of the militia as it had developed in England and subsequently on this continent. Because many of those citizens who were members of the militia would not always voluntarily keep themselves armed and practiced in the use of arms, the pre-Revolutionary states (and of course the English kings) found it necessary to require them to possess and use arms.[64] If, however, Congress were to be given the power to provide for arming the militia, that power might be construed as removing from the states' their power to require their citizens to be armed.[65] Thus, Congress, if it wished to destroy the militia, it could simply "neglect to provide for arming and disciplining the militia...."[66] As noted above, the possibility of such a construction of the Constitution was negated by the Tenth Amendment.[67]

More importantly, the Antifederalists were concerned with the absence of a Bill of Rights.[68] As one of the leading historians of the (p.78)period has observed: "Only the alarm created by the threatened concentration of power in the second American constitution of 1787 could account for the agitation on behalf of a federal bill of rights."[69] Indeed, the absence of a Bill of Rights was the primary concern of the Antifederalists since, as federal law was supreme, "the Declarations of Rights in the separate States are no security."[70]

In response to the concerns of the Antifederalists regarding the standing army, the division of power over the militia, and "the demand for a bill of rights [which] constituted a common ground on which citizens from every section of the Republic could take a stand,"[71] a political compromise developed in the course of the ratification process in which the Federalists agreed (at no political cost given the popular sentiment) to support amendments to the Constitution in the First Congress declaring "the great rights of mankind"[72] in exchange for the Antifederalists dropping their demands for changes to the basic framework of the federal government as then outlined in the Constitution. Consequently, when the First Congress met, Madison (who, to win election to the House had become a supporter of a Bill of Rights), drew up proposed amendments based upon proposals made by the state ratifying conventions (proposals which found their source in the state declarations of rights)[73] and submitted them to the First Congress. When he submitted them, as his notes make clear, he intended that the amendments "relate 1st to private rights."[74](p.79)

His notes also make clear (in that they contain a list of objections to the English Bill of Rights of 1689: "1. Mere act of parlt. 2. No freedom of press -- Conscience [.] G1. Warrants -- Habs. corpus [.] Jury in Civil Causes -- criml. [ ] attainders -- arms to Protessts."), that he viewed the English Bill of Rights as too narrow.[75]

One of the proposed amendments[76] concerned the right to keep and bear arms. In its original form, as proposed by Madison, the second amendment (the fourth proposed amendment) read: "The right of the people to keep and bear arms shall not be infringed; a 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."[77]

Significantly, when considering the proposed amendment, the First Senate soundly rejected a proposal to insert the phrase "for the common defense" after the words "bear arms," thereby emphasizing that the purpose of the second amendment was not primarily to provide for the common defense, but to protect the individual's right to keep and bear arms for his own defense.[78] Moreover, when Madison initially put forth his plan for amending the Constitution, which plan was "calculated to secure the personal rights of the people ...,"[79] because of the Constitution's "omission of (p.80)guards in favor of rights & liberties,"[80] he designated the amendments as inserts between sections of the existing Constitution. He did not designate the right to keep and bear arms as an amendment to the militia clauses of Article I, section 8 or section 10; rather, the right to keep and bear arms was part of a group of provisions (including freedom of religion and press) to be inserted "in article 1st, Section 9, between clauses 3 and 4."[81] While the first clause of Section 9 is concerned with slavery, clauses 2 and 3 (which the right to keep and bear arms was to follow) were devoted to the few individual rights expressly protected in the original Constitution relating to suspension of habeas corpus, bills of attainder, and ex post facto laws.[82]

Adding further weight to the proposition that the second amendment guaranteed an individual right is the fact that appearing in the final version of the second amendment was the term "well-regulated." Contrary to modern usage, wherein regulated is generally understood to mean "controlled" or "governed by rule," in its obsolete form pertaining to troops, "regulated" is defined as "properly disciplined."[83] When it is understood that "discipline" refers to the "training effect of experience,"[84] it is plain that by using the term "well-regulated" the Framers had in mind not only the individual ownership and possession of firearms, but also practice and training with such firearms so that each person could become experienced and competent in their use.

This conclusion is in complete accord with comments on the rights protected by the Constitution made by a leading constitutional commentator.

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 (p.81)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 guarantee 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 that 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 a right to meet for voluntary discipline in arms, observing in doing so the laws of public order.[85]

Likewise, in an opinion by one state's Chief Justice, it was held: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed or broken in upon, in the smallest degree...."[86]

The proposals made by the state ratifying conventions (while initially rejected in many cases, but upon which Madison drew in preparing his proposed amendments) further demonstrate that the Framers of the second amendment were concerned with, and guaranteed, an individual right to keep and bear arms. For example, among a group of 15 proposals (which eventually found their way into the Bill of Rights in the first, second, fourth, fifth, sixth, eighth, and tenth amendments) submitted by a minority of the Pennsylvania delegates at the ratifying convention on December 12, 1787, was a provision stating that

the people have the right to bear arms for the defense of themselves, their state, or the United States, and for killing game, and no law shall be enacted for disarming the people except for crimes committed or in a case of real danger of public injury from (p.82)individuals....[87]

Likewise, in Massachusetts, Samuel Adams proposed an amendment requiring that the "Constitution be never construed to authorize Congress to ... prevent the people of the United States, who are peaceable citizens, from keeping their own arms."[88] In New Hampshire the ratifying convention advanced a proposal which provided that "Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion."[89] Judge Robert Sprecher has thus aptly noted that "history does not warrant concluding ... that a person has a right to bear arms solely in his function as a member of the militia."[90]

The passage of time has not altered the need for individuals to exercise their right to keep and bear arms, even in the context of the common defense. Indeed, one court has recently observed that individual marksmanship is an important skill even in the nuclear age.[91] In the Second World War, moreover, the unorganized militia proved a successful substitute for the National Guard, which was federalized and activated for overseas duty.[92] Members of the unorganized militia, many of whom belonged to gun clubs and whose ages varied from 16 to 65, served without pay and provided their own arms.[93] In fact, it was necessary for the members of the unorganized militia to provide their own arms since the U.S. government not only could not supply sufficient arms to the militia but "turned out to be an Indian giver" by recalling rifles.[94] The 15,000 (p.83)volunteer Maryland Minute Men brought their own rifles, shotguns, and pistols to musters.[95] And all over the country individuals armed themselves in anticipation of threatened invasion.[96] Thus, a manual distributed en masse by the War Department, recommended the keeping of "weapons which a guerrilla in civilian clothes can carry without attracting attention. They must be easily portable and easily concealed. First among these is the pistol."[97] Likewise, in Europe, when the Germans were attempting to occupy Warsaw, the commander of the Jewish Fighting Organization noted, "Our weapons consisted of revolvers (one revolver for every man)."[98] Another partisan in the same resistance movement wrote of "the first weapon shipment -- about ten pistols -- received from the Polish underground ...."[99]

As a final note on the history of the second amendment, it should be observed that the fact that the right to keep and bear arms is joined with language expressing one of its purposes in no way permits a construction which limits or confines the exercise of that right. Like the first amendment right of free assembly, which has as its stated purpose "petition[ing] the Government for a redress of grievances," and which the Supreme Court has used to invalidate statutes requiring disclosure of organization membership lists, whether or not the organization intends to petition the Government,[100] the right to keep and bear arms cannot be interpreted into nonexistence by limiting it to one of its purposes.[101] To hold otherwise is to violate the principle that "[c]onstitutional provisions for the security of a person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance."[102] The Supreme Court (p.84)of Oregon recently recognized this principle by stating:

We are not unmindful that there is current controversy over the wisdom of a right to bear arms, and that the original motivations for such a provision might not seem compelling if debated as a new issue. Our task, however, in construing a constitutional provision is to respect the principles given the status of constitutional guarantees and limitations by the drafters; it is not to abandon these principles when this fits the needs of the moment.[103]

III. Supreme Court Interpretation

In United States v. Cruikshank,[104] the first case in which the Supreme Court had the opportunity to interpret the second amendment, the Court plainly recognized that the right of the people to keep and bear arms was a right which existed prior to the Constitution when it stated that such a right "is not a right granted by the Constitution ... [n]either is it in any manner dependent upon that instrument for its existence."[105] The indictment in Cruikshank charged, inter alia, a conspiracy by Klansmen to prevent blacks from exercising their civil rights, including the bearing of arms for lawful purposes. The Court held, however, that because the right to keep and bear arms existed independent of the Constitution, and the second amendment guaranteed only that the right to keep and bear arms shall not be infringed by Congress, the federal government had no power to punish a violation of the right by a private individual; rather, citizens had "to look for their protection against any violation by their fellow-citizens" of their right to keep and bear arms to the police power of the state.[106] Thus, the second amendment did not apply in Cruikshank since the violation alleged was by fellow-citizens, not the federal government.

In Presser v. Illinois,[107] although the Supreme Court affirmed the holding in Cruikshank that the second amendment, standing alone, applied only to action by the federal government, it nonetheless (p.85)found the states without power to infringe upon the right to keep and bear arms.

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.[108]

The idea of the armed people maintaining "public security" mentioned in this passage from Presser was based upon the common law concept that individuals had the right and, in fact, the duty, not only to resist malefactors, such as robbers and burglars, but to aid in the enforcement of criminal laws and to use deadly force, if necessary, to do so.[109] Disarming individuals would, of course, deprive them of their ability to protect themselves and others, and of their ability to perform their duty to maintain "public security" (or, in the words of the second amendment, the "security of a free State").[110] Likewise, disarming individuals would deprive them of their ability to perform "their duty to the general government," i.e. the duty to contribute to the common defense, a duty which can most effectively be carried out if individuals are familiar with the use of firearms.[111]

Presser, moreover, plainly suggests that the second amendment applies to the States through the fourteenth amendment and thus that a State cannot forbid individuals to keep and bear arms. To understand why, it is first necessary to fully appreciate the statutory scheme the Court had before it.

The statute under which Presser was convicted did not forbid individuals to keep and bear arms but rather forbade "bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by (p.86)law...."[112] Thus, the Court concluded that the statute did not infringe or have the effect of infringing the right to keep and bear arms, adding, in what is virtually dictum, that:

a conclusive answer to the contention that this amendment [i.e. the second amendment] prohibits the legislation in question lies in the fact that the amendment [i.e. the second amendment] is a limitation only upon the power of Congress and the National Government, and not upon that of the states.[113]

No mention was made at this point in the opinion whether the second amendment, through the fourteenth amendment, is a limitation upon the power of the states.

In what was, however, a clear step toward applying certain provisions of the Bill of Rights to the states through the fourteenth amendment, the Court went on to discuss the Privileges and Immunities Clause of the fourteenth amendment. It first noted that "[i]t is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect."[114] The Court thus viewed the issue to be decided as "had [the defendant] a right as a citizen of the United States, in disobedience of the state law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State?"[115] The Court responded to its question by stating that if the defendant "had any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred."[116] Bearing in mind that it had already held that the substantive right to keep and bear arms was not infringed by the Illinois statute since the statute did not prohibit the keeping and bearing of arms but rather prohibited military-like exercises by armed men, the Court proceeded to address the question of whether Presser's first amendment right peaceably to assemble and to petition the government for a redress of grievances, which "was an attribute of national citizenship" and thus a privilege and immunity protected against abridgment by the states, was abridged by the Illinois statute.[117] The Court held, as it did with regard to the second amendment, that Presser's first amendment (p.87)rights were not substantively abridged.[118] Nonetheless, it is entirely clear that the Court viewed the right peaceably to assemble and to petition the government for a redress of grievances as attributes of national citizenship because they are protected by the first amendment. It is clear also that it viewed the right to keep and bear arms as an attribute of national citizenship because it is protected by the second amendment. Thus, it is plain that the Court viewed such rights as applying to the States through the Privileges and Immunities Clause of the fourteenth amendment,[119] and would have invalidated the Illinois statute under either the first or second amendment had it determined that the statute either abridged the right peaceably to assemble or infringed the right to keep and bear arms.[120](p.88)

In United States v. Miller,[121] the only case in which the Supreme Court has had the opportunity to apply the second amendment to a federal firearms statute, the Court carefully avoided making an unconditional finding of the statute's constitutionality; it instead devised a test by which to measure the constitutionality of statutes relating to firearms. The holding of the Court in Miller, however, should be viewed as only a partial guide to the meaning of the second amendment,[122] primarily because neither defense counsel nor defendants appeared before the Supreme Court, and no brief was filed on their behalf giving the Court the benefit of argument supporting the trial court's holding that Section 11 of the National Firearms Act was unconstitutional.[123]

The heart of the Court's decision is found in the following statement:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[124]

This conclusion, that for the keeping and bearing of a firearm to be constitutionally protected, the firearm's possession or use must have some reasonable relationship to the preservation of a well regulated (p.89)militia, is, however, an unjustified limitation upon the rights guaranteed by the second amendment and is based upon the Court's failure to consider fully the common law and the history of the second amendment as well as its misinterpretation of cited authorities.[125] As the discussions of the common law and the history of the second amendment demonstrate, the second amendment was also intended to guarantee the right of each individual to have arms for his own defense.[126]

With respect to the authorities cited by the Court in support of its position that the second amendment's guarantee was limited to "ordinary military equipment" or weapons whose use "could contribute to the common defense," the Court cited Aymette v. State.[127] In Aymette, however, which involved a bowie knife, not a firearm,[128] the Tennessee Supreme Court was construing not the second amendment but the provision of Tennessee's constitution guaranteeing the right to keep and bear arms, a provision which, unlike the second amendment, spoke of each citizen's right to keep and bear arms only as it related to the common defense. The Tennessee (p.90)court thus reasoned that not all objects which could conceivably be used as weapons were protected by the Tennessee Constitution, but only those weapons "such as usually employed in civilized warfare."[129] Such a limitation is not, however, applicable with regard to the second amendment because the first Senate had rejected the "common defense" language upon which the Aymette decision turned. It is plain, therefore, that the interpretation of the second amendment in Miller is more limited than it should be and that the second amendment protects the keeping and bearing of all types of arms, including handguns, which could be carried by individuals.[130] Even accepting, however, the existence of a militia or common defense nexus, the Aymette court held that "[t]he citizens have an unqualified right to keep the weapon" and, adopting the common law, to bear it except to "terrify the people, or for purposes of private assassination."[131]

One of the chief values of Miller is its discussion of the development and structure of the militia which, the Court pointed out, consisted of "all males physically capable of acting in concert for the common defense"[132] and that "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."[133] Miller is also significant (p.91)for its implicit rejection of the view that the second amendment, in addition to guaranteeing the right to keep and bear only certain types of arms, also guarantees the right only to those individuals who are members of the militia. Had the Court viewed the second amendment as guaranteeing the right to keep and bear arms only to "all males physically capable of acting in concert for the common defense," it would certainly have discussed whether Miller met the qualifications for inclusion in the militia, much as it did with regard to the military value of a short-barrelled shotgun. That it did not discuss this point indicates the Court's acceptance of the fact that the right to keep and bear arms is guaranteed to each individual without regard to his relationship with the militia.

Finally, Miller also recognized, in the discussion at 179-182, that each able-bodied individual had not only a duty to assist in the common defense but, indeed, the legal obligation to possess the arms necessary to undertake that common defense.[134] For example, the Court noted that in Massachusetts the law levied fines and penalties against adult males who failed to possess arms and ammunition. In Virginia and New York all males of certain ages were required to possess their own firearms at their own expense, and to appear bearing said arms when so notified.[135](p.92)

In sum, it is clear that Miller, even with its limitations, supports the view that the second amendment guarantees an individual right to keep and bear arms, including handguns.[136] As aptly put by Mr. Justice Black, in discussing Miller and the second amendment, "Although the Supreme Court has held this amendment to include only arms necessary to a well-regulated militia, as so construed its prohibition is absolute."[137]

IV. The Due Process Clause of the Fourteenth Amendment Applies the Guarantees of the Second Amendment to the States

In addition to guaranteeing the right to keep and bear arms against state infringement through the Privileges and Immunities Clause of the fourteenth amendment, modern developments in the analysis of the Due Process Clause dictate that the right to keep and bear arms applies to the states through that clause.[138]

Commencing in 1925, the Supreme Court began to retreat from the position that the fourteenth amendment did not bind the states to honor the guarantees of every provision of the Bill of Rights by holding the substantive guarantees of the first amendment (p.93)binding on the states on a case-by-case basis.[139]

In the landmark case of Palko v. Connecticut,[140] the Court harmonized the results of these cases by articulating a new test for the content of the Due Process Clause:

[I]mmunities that are as valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.[141]

Palko thus marks the point at which the Court first discredited and implicitly overruled Reconstruction-era cases which had held that the Due Process Clause of the fourteenth amendment did not apply the guarantees of the Bill of Rights to the states.[142]

The Court initially applied the Palko test cautiously.[143] During (p.94)the 1960's, however, it began to fill the vacuum created by Palko, adopting a broader definition of rights "implicit in the concept of ordered liberty" and upheld every challenge based upon a state violation of the guarantees of the Bill of Rights.[144]

In determining whether specific guarantees of the Bill of Rights are so fundamental as to be "implicit in the concept of ordered liberty," the Supreme Court has looked to the history of the right in issue. For example, in Benton v. Maryland,[145] Justice Marshall traced the origins of the double jeopardy prohibition "to Greek and Roman times," and found that "[a]s with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries."[146]

Thus, in light of the fact that every express guarantee of the Bill of Rights that the Court has examined has been held "fundamental" and "implicit in the concept of ordered liberty"[147] for purposes of the Due Process Clause, it is logical and reasonable that the guarantees of the second amendment, which exist to ensure the defense of one's person, family, home, and country, and which constitutes one of the basic tenets of Greco-Roman and Anglo-American tradition, meet that test as well.(p.95)

V. Fundamental Rights Cannot Be Restricted Because of Public Hostility to or a Perceived Lack of Current Need for Their Exercise

The right to keep and bear arms may not be undercut simply because that right may at the moment be unpopular to some.[148] The Supreme Court has held time and again that "constitutional rights may not be denied simply because of hostility to their assertion or exercise."[149]

Nor can constitutional rights be made dependent upon a popular consensus that there is a continued need for them. "The Constitution of the United States was not intended to provide merely for the exigencies of a few years but was to endure through a long lapse of ages...."[150]

Indeed, it is precisely because the courts do not allow any contraction of the Bill of Rights that the evils contemplated by the Framers now seem so removed. As Justice Black stated:

Its [the Bill of Right's] provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many.[151]

Conclusion

From the above discussion, it should be readily apparent that the right to keep and bear arms, as guaranteed by the second amendment, is indeed a fundamental individual right which no amount of historical revisionism can deny. Thus, along with all (p.96)other rights found in the Bill of Rights, it should be accorded a significant place in American jurisprudence.[152]