THE JURISPRUDENCE OF THE SECOND AND FOURTEENTH AMENDMENTS

[Copyright © 1981 George Mason Univ. Law Review. Originally published as 4 GMU L. Rev. 1-69 (1981). 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. Dr. Halbrook is the author of That Every Man Be Armed: The Evolution of a Constitutional Right which may be obtained from www.amazon.com.]

THE JURISPRUDENCE OF THE SECOND
AND FOURTEENTH AMENDMENTS

TABLE OF CONTENTS

I. Introduction: Contemporary Federal and State Gun Control
Legislation as a Constitutional Issue
II. Origins of the Second Amendment
III. Antebellum Judicial Construction
IV. The Intent of the Framers of Amendment XIV
V. The Supreme Court Speaks
VI. The State Courts Respond
VII. United States v. Miller
VIII. Federal and State Cases: From Miller Through the Present
IX. Afterward: Judicial Policy and Logic and the Future of the Right
to Keep and Bear Arms

I. Introduction: Contemporary Federal
and State Gun Control Legislation as
a Constitutional Issue

Holding a restrictive housing ordinance invalid under the due process clause of the fourteenth amendment, the United States Supreme Court has recently reaffirmed certain "specific guarantees elsewhere provided in the Constitution," i.e., "the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on."[1] This language however, appears to clarify little else about a subject which the high court has rarely spoken--the right to keep and bear arms. In its opinion, the Court seemed to be placing the right to bear arms recognized in the second amendment on a level of significance equal to the rights protected by the first and fourth amendments and implying that this right, since it is posed in a discussion of the rights incorporated into the fourteenth amendment, is protected from state infringement. Contrariwise, a decade ago the Supreme Court dismissed an appeal seeking to invalidate New Jersey's Gun Control Act which involved registration but not prohibition, for want of a "substantive federal question."[2]

In its entire history, the Supreme Court has spoken only rarely and sketchily on the meaning and applicability of the right to keep and bear arms, but the rapidly escalating and comprehensive forms of firearms control, regulation, and prohibition at both federal and state levels must at some point provoke a more definitive response by the Court. Since, after all, the right--whatever its scope and construction--is guaranteed in the Bill of Rights, at some point the Court may no longer be able to avoid (a) defining more precisely the meaning of the second amendment, and (b) determining whether the right is protected not only from federal deprivation through the second amendment, but also whether the fourteenth amendment guards the right from state infringement. The objective of this article is to provide just such a definition and determination and thereby to contribute a comprehensive jurisprudence of the right to keep and bear arms.

While both federal and state courts may perhaps indefinitely defer deciding such matters as the precise nature of the third amendment's proscription of the quartering of soldiers since no case or controversy seems likely to arise, increasingly restrictive forms of gun control legislation which have been or (p.2)may be enacted prompt the exposition of the constitutional limits of such legislation. The possible conflict of the presently escalating firearms control legislation at both state and federal levels with both constitutional and statutory provisions as well as the common law itself, makes resolution of the nature of the right to have arms appropriate. Not only must this conflict be resolved in terms of the requirements of the second and fourteenth amendments (and possibly the ninth and tenth), but also in terms of state constitutions and civil rights laws which either contain no explicit provisions protecting the right to possess arms or which have provisions which differ in wording from the second amendment. Indeed, the definitional parameters of a right to keep and bear arms protected by the fourteenth amendment, if such right exists, may differ from state provisions even where the language of those provisions is identical with the second amendment, since federal standards for protection of fundamental rights may be held to be more stringent than standards set by the states.[3]

The federal gun control legislation of 1968 provided severe penalties for acts which are only mala prohibita rather than mala in se.[4] For example, it is an offense for a non-firearms dealer to sell or give any firearm to a resident of a state other than his own; technically, a father who presents the family rifle to his son who resides in another state is subject to imprisonment of five years and a fine of $5,000.00.[5] Generally, firearms can be bought, sold, or otherwise transferred by non-licensed persons only within one's home state. Persons who engage in the business of buying or selling arms or ammunition must acquire a federal firearms license, although what constitutes "engaging" in such business has never been defined, subjecting innocent-minded citizens to arrest by agents of the Bureau of Alcohol, Tobacco and Firearms.[5.1] Possession of shotguns with a barrel of less than eighteen inches, guns that fire more than once with a single depression of the trigger, and other arms which are harmless in themselves may subject an individual to ten years imprisonment and a $10,000.00 fine.[6] An absolute prohibition of mere possession of firearms is mandated against those under indictment for or convicted of a felony, veterans (p.3)who received dishonorable discharges, mental incompetents, illegal aliens, citizens who renounced their citizenship, and unlawful users of drugs--including marijuana.[7]

The states and some localities have passed a great variety of regulations concerning the possession, ownership, and carrying of firearms.[8] Little uniformity exists in regard to whether permits to purchase and/or carry as well as registration and/or licensing are required. Some states, such as New Mexico, Georgia, Oregon and Virginia, have very liberal policies in respect to the freedom to purchase, possess, and carry firearms; of these, few regulations exist other than the prohibition of sale to minors and the requirement that a permit be acquired for carrying a concealed weapon outside of one's home. While Florida prohibits carrying pistols and rifles, even though unloaded, unless engaged in such activities as hunting or target practice,[9] California only makes it unlawful to carry loaded guns if not carried for a legitimate purpose;[10] yet in the former state a handgun carried in a glove compartment is not readily accessible and thus not concealed,[11] while in the latter state a handgun carried in a trunk is considered concealed.[12] While most states prohibit convicted felons from possessing firearms, some require that the crime must have been violent, others remove the disability after a certain number of years; exceptional cases exist in Texas, which permits possession at one's residence,[13] and Oregon, which does not disarm persons convicted of felonies related to marijuana possession.[14]

Should the Supreme Court render a significant and extensive opinion concerning the right to keep and bear arms, as it seems bound to do in the future, it will perhaps concern the arms prohibition laws of New York City, Massachusetts, or Washington, D.C., which involve the most stringent control over a traditional liberty which, after all, is specifically provided for in the Bill of Rights. In New York City, which requires burdensome licensing procedures (p.4)for the possession of arms, it is common knowledge that permits for bearing handguns are never granted except to those who show unique need--usually the rich and well-connected. Massachusetts requires a firearm identification card or license to possess any arm, including a BB gun; one who illegally carries a handgun (even if unloaded) on his person or under his control in a vehicle risks a mandatory sentence of one year imprisonment (a sentence not required for manslaughter), while anyone who merely possesses a shotgun with a barrel of less than eighteen inches, a harmless act in itself, may receive life imprisonment.[15] In the District of Columbia, no person may possess a handgun not registered as of September 24, 1976; all guns, except those at a place of business, must be disassembled or locked, thereby preventing protection of family at home; and any arm which may fire over twelve shots without reloading, including common boyhood-type .22 caliber rifles, is considered a machine gun.[16] Some other states and localities require identification cards for possession of firearms, limit the number of firearms an individual may possess, define BB guns as "guns" in the normal sense and thereby prohibit possession by minors and felons, and/or prohibit sale of blank guns used for track and other sporting events.

As the objective of this article is to provide a broad jurisprudential view of the right to keep and bear arms, it will commence with a review of some of the classical philosophical influences on the founding fathers; preceded by an analysis of the English political theory and constitutional and common law theories regarding the right to possess arms; and, will continue with an exposition of the concept of the armed people as expressed in the theory and praxis of the American Revolution and the debate over the adoption of the Constitution. Next, the development of the right to keep and bear arms in the nineteenth century will be assessed via an investigation of antebellum state cases; the experiences of the War Between the States and Reconstruction, as expressed in the Congressional debates over the fourteenth amendment and civil rights legislation; and a review of the four Supreme Court cases which in that century discussed the second amendment. Reflecting twentieth century thought concerning the nature of the individual right, if any, to have firearms, the article proceeds to investigate state and federal court opinions decided both before and after United States v. Miller;[17] the meaning of the Miller case itself; and, federal cases since the gun control legislation of 1968. A critical analysis of judicial policy and logic and the future of the right to keep and bear arms concludes the article.(p.5)

II. Origins of the Second Amendment

A. The Elementary Books of Public Right

According to Thomas Jefferson, the authority of the Declaration of Independence rested in part on "the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, & c."[18] Since the same philosophical influences gave rise to the Bill of Rights, the meaning of the second amendment may be defined initially by reference to the classical republican theorists of ancient Greece and Rome and seventeenth century England as well as to the absolutist theorists of the same periods whose positions were rejected by the founding fathers.

While recognizing that only "the armed multitude" can abolish oligarchy and establish democracy[19] and that tyranny overcomes democracy by disarming the commoners,[20] Plato favored a disarmed populace as essential to his ideal state--monarchy and extreme hierarchy.[21] A proponent of constitutional democracy, Aristotle asked of such a state: "are farmers and craftsmen to have no share in government...? Are they or are they not to possess arms...?"[22] Aristotle also criticized Hippodamus, in whose ideal state "the farmers have no arms, the workers have neither land nor arms; ... mak[ing] them virtually the servants of those who do possess arms."[23] Aristotle held that having arms is a requisite for true citizenship and participation in the policy, while tyranny rests on a mistrust and hence disarming of the people.[24]

In addition to advocating the right of citizens to have arms for public defense against tyranny,[25] Cicero, the leading exponent of Roman republicanism, upheld the legal right to carry arms for self defense. Arguing that the right of self defense is derived from nature and that arms-bearing is justified absent criminal intent, Cicero stated:(p.6)

The lessons of the Roman experience with respect to the association of an armed populace with a republic and a standing army with tyranny, were exposited by Niccolo Machiavelli, who in turn influenced the republicans of both 1688 and 1766. Civic virtue, argued Machiavelli, is promoted by the existence of citizen soldiers who provide their own weapons,[27] while a ruler expresses distrust for his subjects by disarming them.[28] It has been averred that "the Second Amendment to the Constitution ... affirms the relation between a popular militia and popular freedom in language directly descended from that of Machiavelli...."[29]

The leading seventeenth century defender of absolutism was Jean Bodin, who, as a student of Plato, influenced the monarchists Thomas Hobbes and Sir Robert Filmer, and was attacked by Algernon Sidney and John Locke. Attributing "sedition" to free speech and arms possession by commoners, which "translated the sovereignty from the nobility into the people,"[30] Bodin attacked "the immoderate liberty of speech" and observed that "the most visual way to prevent sedition, is to take away the subjects' arms...."[31] In fact, Bodin recommended enactment of a law which would forbid the subjects "upon pain of death to carry weapons" to prevent sedition.[32]

John Locke's refutation of monarchial absolutism did not specifically discuss the private ownership of arms, but his theory rests upon the natural right to defend life, liberty, and property from private criminals or oppressive government, which obviously presupposes the means to do so.[33] Algernon Sidney was more specific in contending that in a popular government "the body of the People is the public defense, and every man is armed and disciplined...."[34] The monarch's subversion of the English constitution, (p.7)Sidney contended, was effected through the disarming of the populace.[35]

B. The English Common Law and Bill of Rights

As Blackstone observed concerning the above legislation, "prevention of popular insurrections and resistance to the government, by disarming the bulk of the people ... is a reason oftner meant than avowed by the makers of the forest and game laws."[37] Ever since the Assize of Arms of Henry II (1181) and subsequent Acts had directed every freeman to provide himself with arms, the English people felt some measure of popular sovereignty through a militia system unhampered by a standing army.[38] While one could be convicted of carrying arms in public places with the intent to "terrify the King's subjects," the common law recognized the right of "Gentlemen to ride armed for their Security."[39]

It is not surprising that the English Bill of Rights complained that James II had subverted "the Laws and Liberties of this Kingdom" in part "by causing several good Subjects, being Protestants, to be disarmed, at the same Time when Papists were both armed and employed, contrary to Law."[40] Accordingly, an act was declared[41] "That the Subjects which are Protestants, may have arms for their defence suitable to their Condition, and as are allowed by Law."[42] Thus, the Bill of Rights recognized as one of the absolute rights of (p.8)Englishmen "the right of having and using arms for self preservation and defence."[43] While most provisions of the Bill of Rights related to governmental duties, only two--the right to petition and "the right of Protestant subjects to carry arms for their own defence"--were expressed as "rights of the individual."[44]

C. The American Revolution and the Second Amendment

The American Revolution was prompted by British policy that appeared to infringe on the natural rights of individuals as defined in what Jefferson termed "the elementary books of public right" and the rights of English subjects as set forth at common law and in the Bill of Rights. The concepts of the right to keep and bear arms and of the armed populace as militia were formulated as early as 1774 by George Mason. Mason, along with George Washington, organized independent militia companies in Fairfax County not subject to the control of Virginia's royal governor for protection "of our Civil-rights, & Liberty."[45] In 1775, Mason drafted a resolution "that a well regulated Militia, composed of gentlemen freeholders, and other freemen, [was] the natural strength and only stable security of a free Government," whose members were to "provide themselves" with arms and ammunition.[46] The Virginia Declaration of Rights of June 12, 1776, which also came from Mason's pen, included the following provision in § 13: "That a well regulated Militia, composed of the body of the People, trained to Arms, is the proper, natural, and safe Defense of a free State...."[47]

Thomas Jefferson, at the same time that he was arguing for an armed revolution in the Declaration of Independence, proposed that "no freeman shall be debarred the use of arms...."[48] The Bills of Rights of Pennsylvania, North Carolina, Vermont, and Massachusetts, adopted during the Revolution, all cited a specific right to bear arms. The Revolution was a people's war the victory of which would have been uncertain without the American tradition of the individual right to keep and bear arms.[49]

When the Constitution was proposed in 1787, sympathetic pamphleteers promised that the right to bear arms, like the right to free speech, would not be (p.9)infringed despite its lack of a bill of rights. Alexander Hamilton predicted that while they would not undergo formal militia exercises, "the people at large" nonetheless would be "properly armed and equipped" to the extent that they could defend their rights against threats by military establishments.[50] A regular army of the federal government, James Madison argued, "would be composed of a militia amounting to near half a million citizens with arms in their hands."[51] Referring to "the advantage of being armed, which the Americans possess over the people of almost every other nation," Madison wrote: "Notwithstanding the military establishments in the several kingdoms of Europe ... the governments are afraid to trust the people with arms."[52] If the people were armed, "the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it."[53]

The Constitution should not be ratified without a Bill of Rights, urged Richard Henry Lee, who contended that "to preserve liberty, it is essential that the whole body of the people always possess arms...."[54] An architect of the second amendment, Lee rejected the concept of a select militia akin to today's National Guard:

The most complete exposition of the Constitution without a bill of rights to take place in the state ratification conventions was in Virginia. Cognizant that only force can protect the public liberty, Patrick Henry averred: "the great object is, that every man be armed.... Everyone who is able may have a gun."[56] George Mason wished to preserve a militia of all people, rich and (p.10)poor: "Who are the militia? They consist now of the whole people, except a few public officers."[57] Picturing the apprehensions of Henry and Mason as unwarranted, James Madison assured the assembly that a standing army would be unnecessary as a result of the existence of militias.[58] The Constitution could not result in oppression, according to Zachariah Johnson, because "the people are not to be disarmed of their weapons, [t]hey are left in full possession of them."[59]

New Hampshire, the first state to ratify the Constitution, recommended that it include a Bill of Rights, including a provision that "Congress shall never disarm any citizen unless such as are or have been in actual rebellion."[60] Samuel Adams proposed a Bill of Rights in the Massachusetts convention with these provisions: "and that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms...."[61] The proposals adopted by the Pennsylvania minority included the following: "[T]hat the people have a 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 individuals,...."[62]

Virginia suggested the following provision: "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided...."[63] In a similar statement of ratification, New York declared the following interconnected propositions:

Similar or identical provisions were recommended by the Rhode Island[65] and North Carolina[66] conventions.

It is easy to understand why the Bill of Rights as adopted contained the well-known provision in Article II: "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." That the term "militia" meant all the people was evident from the version of the amendment that passed the House of Representatives, to wit: "A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed,..."[67] The phrase concerning the body of the people was not contained in the Senate version, which was ratified, since this meaning of "militia" had been evident to all since the adoption of the Virginia Declaration of Rights in 1776. Further, the reference to "the people" in the second amendment left no doubt as to who possessed the right just as it is clear that each individual is part of "the people" referred to in the first, fourth, ninth and tenth amendments. However, the specific rejection by the Senate of a proposal to add "for the common defense" after "to keep and bear arms"[68] was meant to preclude any construction that arms bearing was restricted to militia use and to common defense against foreign aggression or domestic tyranny, for some proposals for the amendment added other purposes, such as individual self defense or hunting. In sum, in the weltanschauung of 1789, the second amendment recognized an individual right to keep and bear arms for a variety of purposes.

III. Antebellum Judicial Construction

A. Antebellum State Cases

Although the Supreme Court had never construed the second amendment prior to the Dred Scott[69] decision in 1857, judicial opinion stressed the need for an armed populace to counter the threat of tyranny, whether its source was foreign or domestic. Chief Justice Story stressed the significance of the second amendment in these words:(p.12)

"The right of the citizens to bear arms in defense of themselves and the state, shall not be questioned,"[71] a provision of the Kentucky Constitution, provided the occasion for perhaps the first state judicial opinion on the nature and source of the right to bear arms in the case of Bliss v. Commonwealth.[72] Defendant appealed his conviction for having worn a sword cane concealed as a weapon by asserting the unconstitutionality of an act prohibiting concealed weapons. The court held that, "[w]hatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution."[73] Observing that wearing concealed weapons was considered a legitimate practice when the constitutional provision was adopted, the court reasoned:

Whether carrying and wearing dangerous weapons constituted an affray at common law was the issue in the Tennessee case of Simpson v. State.[75] This court, in citing Blackstone, answered this in the negative stating that violence, which terrifies the people must also be present. The prosecutor, citing Serjeant (p.13)Hawkins,[76] argued that an affray could exist where one is armed with unusual weapons which naturally cause terror to the people, but the court rejected these "ancient English statutes, enacted in favour of the king, his ministers, and other servants" which provided that "no man ... except the king's servants, & c. shall go or ride armed by night or by day."[77] In noting that the same statute also provided that "persons of quality are in no danger of offending against this statute by wearing their common weapons," the court, by implication, seemed resentful of "royal privilege" and, while rejecting the existence of a common law abridgement of the right to bear arms,[78] held in the alternative that any such abridgement would be abrogated by the state constitution:

Despite this broad language, the subsequent Tennessee case of Aymette v. State[80] originated the interpretation that the arms which could be possessed were those of ordinary military weapons or weapons which contributed to the common defense, since the Tennessee Constitution guaranteed the people the right to keep and bear arms "for their common defense." These words were defeated in the ratification of the second amendment, implying that the amendment would not be so limited; still, other state courts interpreted "for their common defense" to be not only combined defense as a militia, but self defense. And yet, Aymette supports the right of each individual to bear the types of arms used in "civil warfare" in part to prevent domestic tyranny: "If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights, etc. by those in authority."[81]

Anticipating the three basic lines of disagreement that have characterized twentieth century analyses of the second amendment, the separate opinions rendered in State v. Buzzard,[82] an Arkansas case, argued these interpretations (p.14)of a concealed weapons statute: (1) the individual citizen may bear arms suitable for militia use; (2) the right to bear arms applies only to the militia; and (3) the individual citizen may bear arms of any variety. Since two judges determined that the defendant bore a concealed weapon suitable for militia use, the conviction was upheld. Interestingly, all three interpretations seemed to assume that the second amendment applied to the states in addition to the state provision, which provided "that the free white men of this State shall have a right to keep and bear arms in their common defense."[83] The dissenting opinion, which took position (3) above, made the difficult-to-assail argument as follows: "Now, I take the expressions 'a well regulated militia being necessary for the security of a free State,' and the terms 'common defense,' to be the reasons assigned for the granting of the right, and not a restriction or limitation upon the right itself, or the perfect freedom of its exercise."[84]

The classic antebellum opinion which held that the right of the individual to possess arms was protected from both state and federal infringement, but that the manner in which arms could be borne was a proper subject for regulation, was Nunn v. State.[85] An ambiguous Georgia statute proscribed breast pistols but not horseman's pistols, which were not worn openly. While upholding the proscription of concealed weapons, the courts said that the state constitutions "confer no new rights on the people which did not belong to them before," that no legislative body in the Union could deny citizens the privilege of being armed to defend self and country, and that the colonial ancestors had this right which "is one of the fundamental principles, upon which rests the great fabric of civil liberty...."[86]

Anticipating twentieth century selected incorporation by referring to the first, fourth, and fifth amendments as binding on both state and federal governments, the court reasoned:

The Georgia court explained the relation between individual arms possession and militia by reference to the fact that "in order to train properly that militia, the unlimited right of the people to keep and bear arms shall not be impaired,"[88] and added that both constitutional and natural rights were at stake. Contending that the state governments were prohibited from violating the rights to assembly and petition, to be free from unreasonable searches and seizures, to an impartial jury in criminal prosecutions, and to assistance of counsel, the court continued:

In many of the antebellum states, free and/or slave blacks were disarmed by law in order to maintain their servile condition. State legislation which prohibited the bearing of arms by blacks was held to be constitutional owing to the lack of status of African Americans as citizens--despite the fact that the United States Constitution and most state constitutions referred to arms bearing as a right of "the people" rather than "the citizen." In State v. Newsom,[90] the Supreme Court of North Carolina upheld an act to prevent free persons of color from carrying firearms on the ground that the free people of color were not considered as citizens. The court also stated: "In the second article of the amended Constitution, the States are neither mentioned nor referred to. It is therefore only restrictive of the powers of the Federal Government."[91] In Cooper v. Savannah,[92] Georgia found a similar provision constitutional on the grounds that "Free persons of color have never been recognized here as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office."[93](p.16)

While the above courts, in order to deny arms to blacks, took the restrictive view uncharacteristic of antebellum judicial opinion that only "citizens" had the right to bear arms and that the second amendment did not apply to the states, most courts assumed that the Bill of Rights protected this right from state deprivation. Louisiana took the view that a statute prohibiting the carrying of concealed weapons was not against the second amendment, reasoning that the right to carry arms openly "places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary , and of their country...."[94]

While upholding the validity of a statute which classified non-malicious homicide with certain deadly weapons (in this case, a bowie knife) as murder and homicide with other weapons as manslaughter, the Texas high court in Cockrum v. State[95] explained that the object of the second amendment was that "the people cannot be effectually oppressed and enslaved, who are not first disarmed."[96] This court continued in reference to the Texas Bill of Rights:

B. Dred Scott and the Citizens' Rights

Just as virtually the only antebellum state cases which limited the right to have arms functioned to disarm blacks, the ruling of the Supreme Court in Dred Scott v. Sanford[98] conceded that if African Americans were considered part of the people, then they could carry arms anywhere. If members of the African race were "citizens," argued Chief Justice Taney, they would be "entitled to the privileges and immunities of citizens" and would be exempt from the special "police regulations" applicable to them:(p.17)

It is clear that the Supreme Court included among the rights of every citizen the right to have arms wherever one goes; it is equally evident that in granting citizenship to African Americans via the thirteenth and fourteenth amendments, blacks were later guaranteed the fundamental rights of all citizens. The court's language also suggests that the right to have and carry arms anywhere is a right and privilege of national citizenship which the states could not infringe any more than the federal government--in effect, the second amendment was made applicable to the states.

Explaining further that as a citizen "the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved," the Chief Justice stated: " Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself in a criminal proceeding."[100] Obviously, "the people" here included all citizens, for the meaning of the term would not reasonably shift from signifying only the active militia in the case of the right to bear arms, to every individual citizen in respect to the right to a jury trial.

In a separate passage, Justice Taney did discuss the militia, using as an example the laws of New Hampshire of 1815 and 1855 which restricted enrollment in the militia to "free white citizens."[101] Justice Curtis, dissenting, referred to the Act of Congress of May 17, 1792, directing the enrollment of "every free, able-bodied, white male citizen" in the militia, to demonstrate that "colored persons ... have been debarred from the exercise of particular rights or privileges extended to white persons, but ... always in terms which, by implication, admit they may be citizens."[102] How one could be a citizen without having the citizen's rights is unclear, and the dissenting Justice in a later statement apparently approved Acts of Congress preventing the sale of firearms to Indians.[103](p.18)

The truly significant portion of Dred Scott for purposes of this article is its averment that if African Americans were citizens, they would have the right "to keep and carry arms wherever they went."[104] And it was the Reconstruction Amendments which were soon to make them citizens.[105]

IV. The Intent of the Framers of Amendment XIV

The objective of the following portion of this article is to provide an investigation into the congressional deliberations which pertained to the issue of whether the fourteenth amendment imposed the second amendment upon the states. The methodology will be to trace the discussion of the meaning of the fourteenth amendment from its inception in the ideals embodied in the thirteenth amendment and the Civil Rights Act of 1866, through the enforcement legislation--including the Anti-Ku Klux Klan Act of 1871 and the Civil Rights Act of 1875--which sought to make the amendment a reality. Given the unanimity of opinion concerning state regulation of privately held arms by the legislators who framed the fourteenth amendment and its enforcement legislation, it is surprising that judicial opinions and scholarly articles fail to analyze the Reconstruction debates.[106](p.19)

A. Arms and Slavery

Having won their national independence from England through armed struggle, it became increasingly demonstrative to pre-Civil War Americans that the technological development of the gun had egalitarian propensities. It likewise was clear to both proponents and opponents of slavery that an armed black population meant the abolition of slavery, although plantation slaves were often trusted with arms for hunting.[107] This sociological fact explained not only the legal disarming of blacks noted above but also the advocacy of a weapons culture by abolitionists. Having employed the instruments for self defense against his pro-slavery attackers, abolitionist and Republican Party founder Cassius Marcellus Clay wrote that "'the pistol and the Bowie knife' are to us as sacred as the gown and the pulpit."[108] And it was John Brown who argued that "the practice of carrying arms would be a good one for the colored people to adopt, as it would give them a sense of their manhood."[109]

The practical necessities of the long, bloody Civil War, demanding every human resource, led to the arming of blacks as soldiers. While originally they considered it a "white man's war," United States authorities by 1863 were organizing black regiments on a wide scale. At the same time, black civilians were forced to arm themselves privately against mob violence. During the anti-draft riots in New York, according to a Negro newspaper of the time, "The colored men who had manhood in them armed themselves, and threw out their pickets every day and night, determined to die defending their homes.... Most of the colored men in Brooklyn who remained in the city were armed daily for self-defense."[110](p.20)

Toward the end of the war Southerners began to support the arming and freeing of slaves willing to fight the invaders, and the Virginia legislature, on passing a bill providing for the use of black soldiers, repealed its laws against the bearing of arms by blacks.[111] One opponent of these measures declared: "What would be the character of the returned negro soldiers, made familiar with the use of firearms, and taught by us, that freedom was worth fighting for?"[112] Being evident that slaves plus guns equaled abolition, the rebels were divided between those who valued nationhood over slavery and those who preferred a restored union which might not destroy the servile condition of black labor.

Before the end of the war, as the movement began for the complete abolition of slavery via the thirteenth amendment, members of Congress recognized the key role that the bearing of arms was already playing in the freeing of the slaves. In debate over the proposed amendment, Representative George A. Yeaman (Unionist, Ky.) contended that whoever won the war, the abolition of slavery was inevitable due to the arming of blacks:

At the same time, members of the slavocracy were planning to disarm the freedmen. Arguing for speedy adoption of the thirteenth amendment, Representative William D. Kelley (R., Penn.) expressed shock at the words of an anti-secessionist planter in Mississippi who expected the Union to restore slavery. Kelley cited a letter from a brigadier general who wrote: "'What,' said I, 'these men who have had arms in their hands?' 'Yes,' he said, 'we should take the arms away from them, of course.'"[114](p.21)

The northern government won the war only because of the arming of the slaves, according to Senator Charles Sumner (R., Mass.), who argued that necessity demanded "first, that the slaves should be declared free; and secondly, that muskets should be put into their hands for the common defense.... Without emancipation, followed by the arming of slaves, rebel slavery would not have been overcome."[115]

B. The Civil Rights Act of 1866

After the war was concluded, the slave codes, which limited access of blacks to land, to arms, and to the courts, began to reappear in the form of the black codes,[116] and United States legislators turned their attention to the protection of the freedmen. In support of Senate Bill No. 9, which declared as void all laws in the rebel states which recognized inequality of rights based on race, Senator Henry Wilson (R., Mass.) explained in part: "In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages on them...."[117]

When Congress took Senate Bill No. 61, which became the Civil Rights Act of 1866,[118] Senator Lyman Trumbull (R., Ill.), Chairman of the Senate Judiciary Committee, indicated that the bill was intended to prohibit inequalities embodied in the black codes, including those provisions which "prohibit any negro or mulatto from having fire-arms."[119] In abolishing the badges of slavery, the bill would enforce fundamental rights against racial discrimination in respect to civil rights, the rights to contract, to sue and engage in commerce, and equal criminal penalties. Senator William Saulsbury (D., Del.) added:(p.22)

The Delaware Democrat therefore, opposed the bill contending that if a time should come when "a numerous body of dangerous persons belonging to any distinct race" endangered the state, "the State [would] not have the power to disarm them without disarming the whole population."[121] Thus, the bill would have prohibited legislative schemes which in effect disarmed blacks but not whites. Still, supporters of the bill were soon to contend that arms bearing was a basic right of citizenship and personhood.

In the meantime, the legislators turned their attention to the Freedmen's Bureau Bill. Representative Thomas D. Eliot (R., Mass.) attacked an Opelousas, Louisiana ordinance which deprived blacks of various civil rights by including the following provision: "No freedman who is not in the military service shall be allowed to carry fire-arms, or any kind of weapons, within the limits of the town of Opelousas without the special permission of his employer ... and approved by the mayor or president of the board of police."[122] And Representative Josiah B. Grinnell (R., Iowa) complained: "A white man in Kentucky may keep a gun; if a black man buys a gun he forfeits it and pays a fine of five dollars, if presuming to keep in his possession a musket which he has carried through the war."[123] Yet the right of blacks to have arms existed partly as self defense against the state militia itself, which implied that militia needs were not the only constitutional basis for the right to bear arms. Senator Trumbull cited a report from Vicksburg, Mississippi which stated: "Nearly all the dissatisfaction that now exists among the freedmen is caused by the abusive conduct of this militia."[124] Rather than restore order, the militia would typically "hang some freedman or search negro houses for arms."[125]

As debate returned to the Civil Rights Bill, Representative Henry J. Raymond (R., N.Y.) explained of the rights of citizenship:(p.23)

Representative Roswell Hart (R., N.Y.) further stated: "The Constitution clearly describes that to be a republican form of government for which it was expressly framed.... [a] government ... where 'no law shall be made prohibiting a free exercise of religion;' where 'the right of the people to keep and bear arms shall not be infringed;'...."[127] He concluded that it was the duty of the United States to guarantee that the states have such a form of government.[128]

Representative Sidney Clarke (R., Kansas) referred to an 1866 Alabama law providing: "That it shall not be lawful for any freedman, mulatto, or freeperson of color in this State, to own firearms, or carry about his person a pistol or other deadly weapon."[129] This same statute made it unlawful "to sell, give, or lend fire-arms or ammunition of any description whatever, to any freedman, free negro, or mulatto...."[130] Clarke also attacked Mississippi, "whose rebel militia, upon the seizure of the arms of black Union soldiers, appropriated the same to their own use:"[131]

In sum, Clarke presupposed a constitutional right to keep privately held arms for protection against an oppressive state militia.

C. The Fourteenth Amendment

The need for a more solid foundation for the protection of freedmen as well as white citizens was recognized, and the result was a significant new proposal--the fourteenth amendment. A chief exponent of the amendment, Senator Jacob M. Howard (R., Mich.), in referring to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; ... the right to keep and to bear arms ..."[134] argued that the adoption of the fourteenth amendment was necessary to protect these rights against state legislation. "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."[135]

The fourteenth amendment was viewed as necessary to buttress the objectives of the Civil Rights Act of 1866. Representative George W. Julian (R., Ind.) noted that the Act:

It is hardly surprising that the arms question was viewed as part of a partisan struggle: "As you once needed the muskets of the colored persons, so now you need their votes," explained Senator Sumner to his fellow Republicans in support of black suffrage in the District of Columbia.[137] At the opposite extreme, Representative Michael C. Kerr (D., Ind.), an opponent of black suffrage and of the fourteenth amendment, attacked a military ordinance in Alabama that set up a volunteer militia of all males between ages 18 and 45 "without regard to race or color" on these grounds:(p.25)

Kerr predicted that the disfranchisement of white voters and the above military measure would result in "a war of races."[139]

D. The Anti-Ku Klux Klan Act

Although the fourteenth amendment became law in 1868, within three years the Congress was considering enforcement legislation to suppress the Ku Klux Klan. The famous report by Representative Benjamin F. Butler (R., Mass.) on violence in the South, assumed that the right to keep arms was necessary for protection against not only the militia but also against local law enforcement agencies. Noting instances of "armed confederates" terrorizing the Negro, the report stated that "in many counties they have preceded their outrages upon him by disarming him, in violation of his right as a citizen to 'keep and bear arms,' which the Constitution expressly says shall never be infringed."[140] The congressional power based on the fourteenth amendment to legislate to prevent states from depriving any citizen of life, liberty, or property, justified the following provision of the Committee's anti-KKK bill:

The bill was referred to the Judiciary Committee, and when later reported as H.R. No. 320 the above section was deleted--apparently because its proscription extended to simple individual larceny over which Congress had no constitutional authority and because state or conspiratorial action involving the disarming of blacks would be covered by more general provisions of the bill. Supporters of the rewritten anti-KKK bill continued to show concern over the disarming of freedmen. Senator John Sherman (R., Ohio) stated the Republican position: "Wherever the negro population preponderates, there [the KKK] hold their sway, for a few determined men ... can carry terror among ignorant negros ... without arms, equipment, or discipline."[143]

Further comments clarified that the right to arms was a necessary condition for the right of free speech. Senator Adelbert Ames (R., Miss.) averred: "In some counties it was impossible to advocate Republican principles, those attempting it being hunted like wild beasts; in others, the speakers had to be armed and supported by not a few friends."[144] Representative William L. Stoughton (R., Mich.) exclaimed: "If political opponents can be marked for slaughter by secret bands of cowardly assassins who ride forth with impunity to execute the decrees upon the unarmed and defenseless, it will be fatal alike to the Republican party and civil liberty."[145]

Section 1 of the bill, which was taken partly from Section 2 of the Civil Rights Act of 1866 and survives today as 42 U.S.C. § 1983, was meant to enforce Section 1 of the fourteenth amendment by establishing a remedy for deprivation, under color of state law, of federal constitutional rights of all people, not only former slaves. This portion of the bill provided:(p.27)

Representative Washington C. Whitthorne (D., Tenn.), who complained that "in having organized a negro militia, in having disarmed the white man," the Republicans had "plundered and robbed" the whites of South Carolina through "unequal laws," objected to Section 1 of the anti-KKK bill on these grounds:

The Tennessee Democrat thus assumed that the right to bear arms was absolute, deprivation of which created a cause of action against state agents under Section 1 of the anti-KKK bill. In the minds of the bill's supporters, however, the second amendment, as incorporated in the fourteenth amendment, recognized a right to keep and bear arms safe from state infringement--not a right to commit assault or otherwise engage in criminal conduct with arms by brandishing them about so as to endanger others. Contrary to the Congressman's exaggerations, the proponents of the bill had the justified fear that the opposite development would occur, i.e., that a black or white man of the wrong political party would legitimately have or possess arms and a police (p.28)officer of the city of Richmond or New York who was drunken with racial prejudice or partisan politics would take it away, perhaps to ensure the success of an extremist group's attack. Significantly, none of the congressman's colleagues disputed his assumption that state agents could be sued under the predecessor of § 1983 for deprivation of the right to keep arms.

Representative William D. Kelley (R., Penn.), speaking after and in reply to Representative Whitthorne, did not deny the argument that Section 1 allowed suit for deprivation of the right to possess arms, but emphasized the arming of the KKK. He referred to "great numbers of Winchester rifles, and a particular species of revolving pistol" coming into Charleston's ports. "Poor men, without visible means of support, whose clothes are ragged and whose lives are almost or absolutely those of vagrants, are thus armed with new and costly rifles, and wear in their belts a brace of expensive pistols."[148] These weapons are used against Southern Republicans, whose constitutional rights must thereby be guaranteed by law and arms.

However, like Congressman Whitthorne, Representative Barbour Lewis (R., Tenn.) also decried the loss of state agents immunity should the bill pass:

Tennessee Republicans and Democrats alike thus agreed that what is today § 1983 provided an action for damages against state agents in general for deprivation of constitutional rights.

Debate over the anti-KKK bill naturally required exposition of Section 1 of the fourteenth amendment, and none was better qualified to explain that section than its draftsman, Representative John A. Bingham (R., Ohio):

This is a most explicit statement of the incorporation thesis by the architect of the fourteenth amendment. Although Representative Bingham based his theory of incorporation on the privileges and immunities clause and not the due process clause as did subsequent court decisions, Representative Bingham could hardly have anticipated the judicial metaphysics of the twentieth century in this respect. In any case, whether based on the due process clause or on the privileges and immunities clause, the legislative history supports the view that the incorporation of amendments I through VIII was clear and unmistakable in the minds of the framers of the fourteenth amendment .

In contrast with the above legal analysis, some comments on the enforcement of the fourteenth amendment returned to a discussion of the power struggle between Republicans and unreconstructed Confederates. While Republicans deplored the armed condition of white Southerners and the unarmed state of black Southerners, Democrats argued that the Southern whites had been disarmed and were endangered by armed carpetbaggers and negro militia. Thus, Representative Ellis H. Roberts (R., N.Y.) lamented the partisan character of KKK violence:

Representative Boyd Winchester (D., Ky.) set forth the contrary position, favorably citing a letter from an ex-governor of South Carolina to the reconstruction governor regretting the latter's "Winchester-rifle speech" which "fiendishly proclaimed that an instrument of death, in the hands of the negroes of South Carolina, was the most effective means of maintaining order and quiet in the State."[152] Calling on the governor to "disarm your militia," the letter referred to the disaster which resulted "when [the governor] organized colored troops throughout the State, and put arms into their hands, with powder and ball, and denied the same to the white people."[153] The letter cited numerous instances where the "colored militia" murdered white people. According to Representative Winchester, it was the arming of blacks and the disarming of whites which resulted in white resistance: "It would seem that wherever military and carpet-bagger domination in the South has been marked by the greatest contempt for law and right, and practiced the greatest cruelty toward the people, Ku Klux operations have multiplied."[154]

An instance of black Republican armed resistance to agents of the state who were in the Klan was recounted in a letter cited by Representative Benjamin F. Butler:

By contrast, Representative Samuel S. Cox (D., Ohio) assailed those who "arm negro militia and create a situation of terror;" exclaimed that South Carolinians "actually clamored for United States troops to save them from the rapacity and murder of the negro bands and their white allies;" and saw the Klan as the South's only defense: "Is not repression the father of revolution?" The congressman compared the Klan with the French Jacobins, Italian Carbonari, and Irish Fenians.[156] Representative John Coburn (R., Ind.) saw the situation in an opposite empirical light--deploring both state and private disarming of blacks: "How much more oppressive is the passage of a law that (p.31)they shall not bear arms than the practical seizure of all arms from the hands of the colored men?"[157]

The next day Representative Henry L. Dawes (R., Mass.) returned to a legal analysis which again asserted the incorporation thesis. Of the anti-Klan bill he argued:

Representative Horatio C. Burchard (R., Ill.), while generally favoring the bill insofar as it provided against oppressive state action, rejected the interpretation by Dawes and Bingham regarding the definition of "privileges and immunities," which Burchard felt were contained only in articles IV, V, and VI rather than I through VIII. However, Burchard still spoke in terms of "the application of their eight amendments to the States,"[159] and in any case Dawes had used the terms "rights, privileges and immunities." The anti-Klan bill finally was passed along partisan lines as An Act to Enforce the Provisions of the Fourteenth Amendment.[160]

E. The Civil Rights Act of 1875

After passage of the anti-Klan bill, discussion concerning arms persisted as interest developed toward what became the Civil Rights Act of 1875, now 42 U.S.C. § 1984. A report on affairs in the South by Senator John Scott (R., (p.32)Penn.) indicated the need for further enforcement legislation: "[N]egroes who were whipped testified that those who beat them told them they did so because they had voted the radical ticket, and in many cases made them promise that they would not do so again, and wherever they had guns took them from them."[161]

Following the introduction of the civil rights bill, the debate over the meaning of the privileges and immunities clause returned. Senator Matthew H. Carpenter (R., Wis.) cited Cummings v. Missouri,[162] a case contrasting the French legal system, which allowed deprivation of civil rights, "among these of the right of voting, ... of bearing arms," with the American legal system, averring that the fourteenth amendment prevented states from taking away the privileges of the American citizen.[163]

Senator Allen G. Thurman (D., Ohio) argued that the "rights, privileges, and immunities of a citizen of the United States" were included in amendments I through VIII. Reading and commenting on each of these amendments, he said of the second: "Here is another right of a citizen of the United States, expressly declared to be his right--the right to bear arms; and this right, says the Constitution, shall not be infringed."[164] After prodding from John A. Sherman (R., Ohio), Thurman added the ninth amendment to the list.[164]

The incorporationist thesis was stated succinctly by Senator Thomas M. Norwood (D., Ga.) in one of the final debates over the civil rights bill. Referring to a United States citizen residing in a Territory, Senator Norwood stated:

Arguing that the fourteenth amendment created no new rights but declared that "certain existing rights should not be abridged by States," the Georgia Democrat explained:

In sum, it was the understanding of Southern Democrats and Radical Republicans alike that the right to keep and bear arms, like other Bill of Rights freedoms, was made applicable to the states by the fourteenth amendment.

The framers of the fourteenth amendment and of the civil rights acts of Reconstruction, rather than predicating the right to keep and bear arms on the needs of an organized state militia, based it on the right of the people individually to possess arms for protection against any oppressive force--including racist or political violence by the militia itself or by other state agents such as sheriffs. At the same time, the militia was understood to be the whole body of the people, including blacks. In a discussion concerning the Civil Rights Act of 1875, Senator James A. Alcorn (R., Miss.) defined the militia in these terms: "The citizens of the United States, the posse comitatus, or the militia if you please, and the colored man composes part of these."[167] Every citizen, in short, was a militiaman. With the passage of the fourteenth amendment, the right and privilege of individuals to keep and bear arms was protected from both state and federal infringement.

V. The Supreme Court Speaks

Despite the fact that the fourteenth amendment did not exist when Chief Justice Marshall wrote the opinion in Barron v. Baltimore,[168] which held the (p.34)Bill of Rights inapplicable to the states, the precedential influence of this case remained long after 1868 to the extent that selective incorporation by the Supreme Court did not begin until the turn of the century--only to be more fully developed in the 1960s. However, antebellum state courts were far more progressive, having held fundamental rights guaranteed in the Bill of Rights as protected from state deprivation. Even the notion of selective incorporation, whereby some Bill of Rights freedoms were considered applicable to the states, was originated by state courts. The opinion in the Texas case of English v. State,[169] in assuming that the second amendment applied to the states, referred to the right to keep and bear arms as a "personal right" which was "inherent and inalienable to man."[170] Owing to the fundamental character of the right, the court approvingly cited the following from Bishop's Criminal Law: "[T]hough most of the amendments are restrictions on the general government alone, not on the States, this one seems to be of a nature to bind both the State and National Legislatures, and doubtless it does."[171]

Implicit rejection of the applicability to the states of the Bill of Rights via the fourteenth amendment was initiated in the Slaughterhouse Cases,[172] the first Supreme Court opinion to construe the Reconstruction amendment. This now discredited opinion was soon followed by United States v. Cruikshank,[173] which remains the primary precedent for the proposition that the fourteenth amendment implies no right to keep and bear arms. Actually, the Court decided nothing of the kind, and Cruikshank is susceptible to the interpretation that the right to bear arms is a fundamental right.

The defendants in Cruikshank were convicted under the Enforcement Act of 1870[174] of conspiracy to deprive Levi Nelson and Alexander Tillman, both "of African descent and persons of color," of their rights to free speech and to keep and bear arms as guaranteed by the first and second amendments. The Court decided in reference to the first amendment that it "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone."[175] Regarding the seizure of complainant's arms by the alleged conspirators, the Court stated:

This passage may be reduced to two propositions. First, that bearing arms was not a right granted by the Constitution, but existed independently of that charter since this right long antedated the Constitution. Using similar language, the Court, only two pages before, had explained more fully its meaning in reference to the first amendment:

Thus, while the first and second amendments only applied to the federal government, the rights of the people to assemble publicly and to bear arms were basic to the kind of free civilization which the states were bound to protect.

The second proposition embodied in the Court's language was that the second amendment (like the first) only restricted the powers of the national government in the sense that private infringement of the right could be remedied only in the state courts. Far from denying that the states need not respect any right to keep and bear arms, the Court averred that municipal legislation and internal police rather than federal authority must protect this right. By analogy, the Justices reasoned that: "It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself."[178] The federal courts could not prosecute defendants accused of conspiracy to deprive complainants of their freedom of action and their firearms for these violations were common law crimes actionable only at the local level.(p.36)

Lastly, the Cruikshank Court could not offer relief on the basis of the fourteenth amendment because private conspiracy rather than state action was involved:

The rights to free assembly and possession of arms were considered fundamental rights of the citizen, but the encroachment by the state on these rights was not an issue in Cruikshank since no state action was alleged and thus, complainants were denied relief.

Whatever its constitutional grounds, the Supreme Court chose not to protect the black's rights to free speech and possession of arms, and Cruikshank came to symbolize, and perhaps to hasten, the end of Reconstruction. "Firearms in the Reconstruction South provided a means of political power for many. They were the symbol of the new freedom for blacks.... In the end ... the blacks were effectually disarmed."[180] The black historian W. E. B. DuBois contended that arms in the hands of blacks, and hence possible economic reform, aroused fear in North and South alike, resulting in such decisions as Cruikshank which made the fourteenth amendment an instrument of protection for corporations rather than freedmen.[181] Justice Thurgood Marshall recently referred to Cruikshank in these terms: "The Court began by interpreting the Civil War Amendments in a manner that sharply curtailed their substantive protections."[182]

Unlike the fact pattern in Cruikshank, state action was involved in Presser v. Illinois,[183] the second Supreme Court decision to treat the issue regarding the relation between the second amendment and the states. Presser was indicted under an Illinois act for parading a body of four hundred men with rifles through the streets of Chicago without having a license from the governor. The participants were members of Lehr and Wehr Verein, a corporation of German immigrants whose stated objectives were education and military exercise to promote good citizenship. The Court upheld the finding of guilty against defendant's claim that the state legislation violated the second amendment:(p.37)

In short, the Court held that the armed paraders went beyond the individual right of keeping and bearing weapons, and in the alternative and more generally, that the second amendment does not apply to the states. The former proposition was explained further in the Court's rejection of a first amendment right of assembly applicable to Presser's band:

Thus, Presser does not apply to the issue of the right of individuals to keep and bear arms, but is directly applicable to situations involving essentially private armies.[186]

This latter proposition, that Cruikshank "held" that the second amendment is not a limitation on the states, ignored the fact that Cruikshank did not involve state infringement of rights. And while Presser was thereby really the first Supreme Court decision to hold the second amendment inapplicable to the states, it made no mention of whether the fourteenth amendment might guarantee a right to keep and bear arms. Still, Presser upheld the concept of an arms bearing population on article I, section 8 grounds:

In short, even if the second amendment did not apply to the states, the right to keep and bear arms existed for all citizens capable of bearing arms, and this right could not be infringed by the states. However, this principle did not prevent the Court from affirming the conviction of the German nationalist leader, just as in the earlier precedent the Court found no reason to protect the freedman's rights. This affirmation might lead the legal realist to the sociological conclusion that Cruikshank and Presser reflected the fear of established American ethnic groups to the challenges of blacks and foreigners.[188]

Miller v. Texas,[189] the final opinion by the high Court to rule directly on the second amendment in respect to its non-application to the states, clarified that its predecessor cases both refrained from deciding whether the fourteenth amendment included a prohibition of state infringement on the right to keep and bear arms. Convicted of murder and sentenced to death, defendant Miller "claimed that the law of the State of Texas forbidding the carrying of weapons, and authorizing the arrest without warrant of any person violating such law ... was is [sic] conflict with the 2nd and 4th Amendments to the Constitution...."[190] While assuming that the restrictions of these amendments operate only upon the federal power, the Court left open the possibility that the right to keep and bear arms and the right against warrantless arrests or unreasonable seizures may apply to the states through the fourteenth amendment: "[I]f the 14th amendment limited the power of the States as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court."[191] Rather than rejecting incorporation of the second and fourth amendments into the fourteenth, the Supreme Court refused to decide the claim because its powers of adjudication were limited to the review of errors timely objected to in the trial court, thereby precluding it from hearing such novel arguments. In sum, the careful distinction (p.39)drawn by the Miller Court between rights based solely on provisions in the Bill of Rights and those based on the fourteenth amendment and the Court's reliance on Cruikshank and Presser, demonstrate that none of the three cases resolved the issue of whether the fourteenth amendment prohibited the states from infringing upon the right to keep and bear arms. Indeed, dictum in Cruikshank suggests that although this right was not within the federal conspiracy statute, the right to bear arms, like the right to free speech, is a fundamental right which existed prior to the Constitution and which every free civilization is bound to respect.

While Cruikshank, Presser, and Miller were the only nineteenth century Supreme Court cases where the nature of the right to bear arms was at issue, the case of Robertson v. Baldwin,[192] which considered whether compulsory service of deserting seamen constituted involuntary servitude, treated arms bearing as a fundamental and centuries-old right which could not be infringed. Referring to the seaman's contract as an exception to the thirteenth amendment, Justice Brown, who delivered the opinion of the Court, analogized:

In this striking passage, the Supreme Court recognized the right to bear arms as having existed "from time immemorial," having been handed down as a guarantee of Englishmen long predating its formal expression in the second amendment, and as being part of "the fundamental law." That the prohibition of carrying concealed weapons did not infringe upon this right indicates that the Court viewed the right as belonging to individuals, for such issue is not relevant to an organized militia. The Court's reference to concealed (p.40)weapons legislation referred to state statutes concerning the manner in which private persons carried handguns and other small weapons in public; there certainly were no statutes prohibiting active militiamen from carrying concealed weapons. The Court's pronouncement also suggests that the individual right to carry weapons openly, by being basic to our system of government, was protected from both federal and state infringement--otherwise, it would be ludicrous to speak of state statutes prohibiting carrying concealed weapons as not infringing on the right to bear arms, for by definition no state statute could infringe on this right if the right was protected only from federal infringement and was not part of the fundamental law.[194]

VI. The State Courts Respond

The Supreme Court did not return to the subject of the second amendment until it heard the case of United States v. Miller[195] in 1939, but in intervening years several significant state opinions were rendered, some of which were cited with authority in Miller. The Texas Supreme Court, after its progressive holding in English v. State[196] that the second amendment involved a fundamental right which applied to both state and federal legislatures, reversed itself in State v. Duke[197] by reverting to the Barron v. Baltimore[198] view that the Bill of Rights was inapplicable to the states. Even so, the court held that the defendant could not be constitutionally convicted for carrying a six-shooter pistol. The term "arms" is more comprehensive than only "arms of the militiaman or soldier" under the Texas Constitution: "The arms which every person is secured the right to keep and bear ... must be such arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self defense...."[199]

The Arkansas case of Fife v. State[200] considered the constitutionality of an act which prohibited the carrying of easily concealed pocket pistols but not larger handguns. While holding the act valid under a state constitution which (p.41)guaranteed the right to bear arms for the "common defense," the court added that the second amendment protects the individual right to possess "the army and navy repeaters, which, in recent warfare, have very generally superseded the old-fashioned holster, used as a weapon in the battles of our forefathers."[201] While restricting the "protected" arms to those typical for militia use, by indicating that one function of the second amendment was to provide such arms to all citizens to overthrow a domestic tyranny, it clarified that all citizens were militiamen:

The West Virginia case of State v. Workman[203] also resulted in upholding an act designed to prevent the carrying of certain concealed weapons such as brass knuckles, small pistols, and billies as were commonly used in brawls and street fights. Yet, the court still upheld second amendment protection for individual possession of arms such as would aid the people to revolt to protect the public liberty, claiming that "the weapons of warfare to be used by the militia, such as swords, guns, rifles, and musket,--arms to be used in defending the state and civil liberty" could be borne by the people.[204]

While the West Virginia high court thus assumed in the above analysis that the second amendment applied to the states without explicitly so holding, the Supreme Court of Idaho in In re Brickey[205] held that the carrying of firearms was protected from state deprivation by the federal constitution as well as by their state provision which insured the right to bear arms for security and defense:

Yet in Salina v. Blaksley[207] the Supreme Court of Kansas in upholding a conviction for carrying a revolver while intoxicated, took the restrictive view that the intent of the relevant state provision and amendment II was to guarantee arms possession for defense and security and "the right to bear arms as a member of the state militia."[208] Contrariwise, the court treated the federal provision as applicable to the states and agreed that "the legislatures can regulate the mode of carrying deadly weapons, provided they are not such as are ordinarily used in civilized warfare."[209] The exclusively collectivist approach taken in Salina that the relevant constitutional provisions only referred to the right to bear arms in a military organization provided for by law "went further than any other case,"[210] except for the opinion of one concurring judge in the early Arkansas case of State v. Buzzard.[211] This approach appears incongruous in that the members of a military organization constitutionally provided for by law would hardly need a special constitutional right to bear arms.

Affirming a directed verdict for defendant who was prosecuted for carrying a pistol after being threatened with violence, the Supreme Court of North Carolina in State v. Kerner[212] referred to the right to keep and bear arms as "a sacred right based upon the experience of the ages in order that the people may be accustomed to bear arms and ready to use them for protection of their liberties or their country when occasion serves."[213] Historically, "'pistol' ex vi termini is properly included within the word 'arms,' and that the right to bear such arms cannot be infringed."[214] The constitutional guarantee extended to arms which the individual could keep and bear, not to war planes or cannons:(p.43)

In short, the arms that the individual is guaranteed the right to bear are those which can be purchased, kept, and borne. Further, this individual right was guaranteed for the purpose of enabling the people to protect themselves against invasions of their liberties. It was "the common people," since they were "accustomed to the use of arms," who won the Revolution, and not only is the right not dependent on the select militia, but it exists in part for defense against the militia: "In our own state, in 1870, when Kirk's militia was turned loose and the writ of habeas corpus was suspended, it would have been fatal if our people had been deprived of the right to bear arms and had been unable to impose an effective front to the usurpation."[216]

The right to bear arms "should be construed to include all 'arms' as were in common use, and borne by the people as such when this provision was adopted."[217] "The intention was to embrace the 'arms,' an acquaintance with whose use was necessary for their protection against the usurpation of illegal power--such as rifles, muskets, shotguns, swords, and pistols."[218] The Kerner court expressed its consciousness of the need of the poor and the unpopular "to acquire and retain a practical knowledge of the use of fire arms" as follows:

The Michigan Supreme Court in People v. Zerillo[220] held that not only individual citizens but also unnaturalized foreign-born residents were protected under the state constitutional provision: "Every person has a right to bear arms for the defense of himself and the state."[221] The court viewed the policy issue as follows:

The same court explained the provision further in the 1931 case of People v. Brown,[223] which upheld the sentence of life imprisonment of a recidivist felon convicted of possessing a blackjack. Reviewing the nature of the historical militia as being "composed of all able-bodied men," the Michigan Supreme Court rejected (a) the view that individuals may bear only such arms as are customary in the militia and (b) the extreme view taken in Salina that only military organizations were protected by the Constitution. The court reasoned:

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to every person to bear arms for the defense of himself as well as of the state.[224]

VII. United States v. Miller

The nearest the Supreme Court has come to a direct construction of the meaning of the second amendment was the case of United States v. Miller[225] (p.45)in which the Court reversed a district court judgment which held the National Firearms Act of 1934[226] invalid as violative of the second amendment.[227] Defendants had been convicted of transporting in interstate commerce a shotgun having a barrel less than eighteen inches without having in their possession the stamp-affixed written order required under the Act, which was the first federal statute ever passed, which regulated, through taxation and registration, the keeping and bearing of certain arms.

Since the defendant-appellees made no appearance on appeal, the Supreme Court was only apprised of the cases and arguments which the United States attorneys brought to its attention, and thereby failed to benefit from hearing the adverse views necessary to render a balanced opinion.[228] Even so, the opinion of the Court, delivered by Justice McReynolds, stands for the proposition that the United States government cannot regulate the right to keep and bear arms suitable for militia use but can regulate possession of arms unsuitable for militia use. The Court began the opening of its brief analysis of the second amendment in these terms:

The italicized portions above do not indicate that possessing the "sawed-off" shotgun was unprotected by the second amendment, but only that no evidence was presented on the matter and the facts were not of such common knowledge that judicial notice could be taken.[230] Most significantly, the Court assumed that the weapon had not been shown to be "ordinary military equipment" which "could contribute to the common defense"--had such evidence been shown, the Court's wording implies that its possession by an individual would be protected.(p.46)

This assumption is further made explicit by reference to the Aymette[231] case, which stated with respect to the right of each individual to bear arms: "If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights, etc."[232] Even so, the Tennessee Constitution's guarantee of the people's right "to keep and bear arms for their common defense" contained the very qualification explicitly rejected when the second amendment was ratified, and thus the Supreme Court's restriction to individual possession of military arms was misguided.

The Court proceeded to cite the militia clause of the Constitution[233] and stated that its purpose was "to assure the continuation and render possible the effectiveness of such forces."[234] The Court clearly perceived this militia as the armed people: "The sentiment of this time strongly disfavored standing armies; the common view was that adequate defense of Country and laws could be secured through the Militia--civilians primarily, soldiers on occasion."[235] In more detail:

Having cited Blackstone[237] to the effect that King Alfred "first settled a national militia," the Court quoted Adam Smith: "Men of republican principles have been jealous of a standing army as dangerous to liberty.... In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier...."[238] A review of the militia acts of the pre-Constitution colonies followed, beginning with these generalizations from the historian Osgood "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms.... The possession of arms also implied the possession of ammunition...."[239](p.47)

In 1784, the General Court of Massachusetts directed that "all able-bodied men" under sixty years of age be available for the Train Band or Alarm List, and each individual "shall equip himself, and be constantly provided with a good fire arm...."[240] Defining "every able-bodied Male Person" who resided in the state between ages sixteen and forty-five a militiaman, the New York Legislature directed each to "provide himself, at his own Expense, with a good Musket or Firelock" and ammunition.[241] Finally, the General Assembly of Virginia in 1785 declared, "the defense and safety of the commonwealth depend upon having its citizen properly armed," and directed that "all free male persons" between ages of eighteen and fifty be considered members of the militia who were obliged not only to be armed on muster day with a clean musket or rifle, cartridges, a pound of powder, lead, and other equipment, but also to "constantly keep the aforesaid arms, accoutrements, and ammunition...."[242]

The Supreme Court's historical review demonstrated its recognition that the "well regulated militia" referred to in the second amendment meant the whole armed masses, that each private individual had the right and duty to keep and bear arms, and that the people were to provide their own armed protection rather than depend on a militarist and oppressive standing army. The Court not only sanctioned the view that the whole armed population, not simply the organized armed minorities on the payroll of the United States or state governments (i.e., the four branches of the national "armed forces" and the "National Guard"), was responsible for protecting the people's freedom and implied that the standing army was contrary to "the security of a free state" and unconstitutional.

Next, the Court pointed out: "Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed."[243] While asserting that these provisions failed to support the defendants in this case, this statement reaffirmed that the right to keep and bear arms was clearly "guaranteed."

Perhaps the most significant portion of the brief Miller opinion was the footnotes which the Court labeled "some of the more important opinions and comments by writers...."[244] Although virtually all these notes are reviewed in detail above, as approved authorities, they merit summarization here to further clarify the Court's determination in 1939.(p.48)

The note begins by citing Presser v. Illinois[245] and Robertson v. Baldwin.[246] As seen previously, Presser only held that the second amendment did not protect private armies marching through a city without a permit, and asserted that the states could not prevent the armed people from doing their duty as a militia under the Constitution.[247] The latter case, in dictum, viewed the right to keep and bear arms (which it failed to restrict to arms appropriate to a militia) as a fundamental privilege and immunity which antedated the adoption of the Constitution. The Robertson Court further implied that an individual right to keep and bear arms was protected from state and federal infringement, since the Court sanctioned regulation of concealed weapons, an issue hardly relevant to the organized militia.[248]

Aside from the above two Supreme Court cases, the Miller Court, largely in the aforementioned note, referred to several state cases. In order of appearance, the following were cited:

The Arkansas case of Fife v. State,[249] upheld the right of individuals to bear large, but not pocket, pistols to enable the people to resist domestic oppression. It should be noted that the state constitutional provision in question qualified the right to keep and bear arms for the "common defense," a qualification which was defeated in debates over the second amendment. Arguably, possession of concealed pocket pistols is thereby protected by the amendment.

The Georgia case of Jeffers v. Fair,[250] upheld the right of the Confederate States of America to conscript men to combat the invasion of their soil from domestic tyranny transformed into foreign invasion. The case discussed the value of the militia in a general manner without expositing directly the second amendment, or its equivalent in the Confederate Constitution, which adopted identical wording.[251]

The Kansas case of Salina v. Blaksley,[252] which in dictum stated that the right to bear arms applied to members of the militia, also assumed that the masses were the militia in concluding that only weapons not ordinarily used in civil warfare were not protected by the amendment. In addition, this presupposed the applicability of the second amendment to the states.(p.49)

THE JURISPRUDENCE OF THE SECOND
AND FOURTEENTH AMENDMENTS

I. Introduction: Contemporary Federal
and State Gun Control Legislation as
a Constitutional Issue

II. Origins of the Second Amendment

A. The Elementary Books of Public Right

B. The English Common Law and Bill of Rights

C. The American Revolution and the Second Amendment

III. Antebellum Judicial Construction

A. Antebellum State Cases

B. Dred Scott and the Citizens' Rights

IV. The Intent of the Framers of Amendment XIV

A. Arms and Slavery

B. The Civil Rights Act of 1866

C. The Fourteenth Amendment

D. The Anti-Ku Klux Klan Act

E. The Civil Rights Act of 1875

V. The Supreme Court Speaks

VI. The State Courts Respond

VII. United States v. Miller

THE JURISPRUDENCE OF THE SECONDAND FOURTEENTH AMENDMENTS

I. Introduction: Contemporary Federal and State Gun Control Legislation as a Constitutional Issue

II. Origins of the Second Amendment

A. The Elementary Books of Public Right

B. The English Common Law and Bill of Rights

C. The American Revolution and the Second Amendment

III. Antebellum Judicial Construction

A. Antebellum State Cases

B. Dred Scott and the Citizens' Rights

IV. The Intent of the Framers of Amendment XIV

A. Arms and Slavery

B. The Civil Rights Act of 1866

C. The Fourteenth Amendment

D. The Anti-Ku Klux Klan Act

E. The Civil Rights Act of 1875

V. The Supreme Court Speaks

VI. The State Courts Respond

VII. United States v. Miller

THE JURISPRUDENCE OF THE SECOND
AND FOURTEENTH AMENDMENTS

I. Introduction: Contemporary Federal
and State Gun Control Legislation as
a Constitutional Issue