[Copyright © 1983 Michigan Law Review. Originally published as 82 Mich. L. Rev. 204-273 (1983). 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.]
Don B. Kates, Jr.[*]
Federal or state handgun prohibition legislation[1] is often suggested as one way to reduce the incidence of homicide and other violent crime in the United States.[2] Whatever the criminological merits of this suggestion,[3] constitutionally speaking it raises a diverse set of issues. Among those which this Article will not cover in any depth are:(p.205)
(1) whether Congress has jurisdiction under the commerce clause or otherwise to enact a federal handgun prohibition;[4]
(2) whether such a prohibition would violate the "castle doctrine" embodied in the third and fourth amendments;[5]
(3) whether the constitutional privacy protections of the fourth and fifth amendments would inhibit enforcement of such a ban;[6] and
(4) whether handgun confiscation would trigger the fifth amendment's just compensation requirement.[7]
The constitutional issue that comes most immediately to mind in (p.206)connection with handgun prohibition-confiscation, however, is the second amendment's injunction:
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.[8]
The meaning of this language has been extensively debated in light of what has aptly been termed "The Great American Gun War."[9] Predictably, but unfortunately, the discussion has mirrored the terms, conditions and bitterness of that "war." Debate has been sharply polarized between those who claim that the amendment guarantees nothing to individuals, protects only the state's right to maintain organized military units, and thus poses no obstacle to gun control (the "exclusively state's right" view), and those who claim that the amendment guarantees some sort of individual right to arms (the "individual right" view).
The individual right view is endorsed by only a minority of legal scholars,[10] but accepted by a majority of the general populace who, though supporting the idea of controlling guns, increasingly oppose their prohibition, believing that law-abiding citizens may properly have them for self-defense.[11] Though the individual right view reigns (p.207)among nonlegal scholars,[12] the exclusively state's right position is dominant among lawyers and law professors[13] and enjoys the support of the American Bar Association.[14] That bastion of individual rights, the American Civil Liberties Union--a member organization of the National Coalition to Ban Handguns--emphatically denies that the second amendment has anything to do with individuals.[15](p.208)
Indeed, "The Great American Gun War" bristles with ironies that turn our stereotypes of liberalism and conservatism topsy-turvy: While the New York Times editorializes that "[t]he urban handgun offers no benefits,"[16] its publisher is among the few privileged to possess a New York City permit to carry one at all times.[17] Arch-conservatives who passionately denounce marijuana and homosexuality wax eloquent against the "victimless criminalization" of gun owners.[18] (p.209)The National Rifle Association (NRA) has its own gun control program, involving mandatory minimum prison sentences for the use of a gun in the commission of a crime--a scheme which the NRA's opponents decry.[19] But these same opponents endorse mandatory minimum prison sentences for people who (without misuse) simply carry a handgun illegally--people who turn out overwhelmingly to be not criminals but frightened shopkeepers, secretaries and the elderly--respectable citizens who must live or work in high-crime areas but lack the political influence necessary to get a permit.[20] Normally antipathetic political extremists of virtually every persuasion join with apolitical gun collectors in paranoid visions of gun bans as persecutions directed especially against them.[21] Usually liberal jurists and newspaper columnists frankly call for abrogation of the fourth amendment insofar as it would hinder police confiscation of guns--"unlimited search and seizure" against anyone suspected of being a handgun owner.[22]
Equally ironic, the legal community's endorsement of the exclusively state's right interpretation has actually aided the gun organizations in one way. By concentrating attention on the state's right position, the gun-owner organizations have been able to avoid the details of their own individual right position, which seems inconsistent with the kinds of gun controls the organizations have themselves endorsed.[23] In almost every state, the basic handgun legislation, including (p.210)both the prohibition on the carrying of concealed weapons and the restrictions on gun ownership by felons, minors, and incompetents,[24] stems from the Uniform Revolver Act,[25] drafted and promoted by the NRA and the now defunct United States Revolver Association in the first three decades of this century.[26] However socially desirable these and other controls may be, they raise problems for the individual right interpretation which its proponents have rarely, if ever, attempted to address. For example:
(1) Since the amendment contains no express limitation on the kind of "arms" guaranteed, why does it only protect possession of ordinary small arms (rifles, shotguns, handguns)? Why not of artillery, flame-throwers, machine guns, and so on, to the prohibition of which gun-owner groups have readily acceded?
(2) Likewise, since the amendment's guarantee does not explicitly limit gun ownership to responsible adults, why does it not proscribe the laws restricting handgun ownership by lunatics, criminals and juveniles?
(3) Since the amendment guarantees an (apparently unqualified) right to "bear" as well as to "keep" arms, how can individual right proponents endorse concealed-carry proscriptions?
(4) Conversely, if all these controls are consistent with the gun-owner groups' position, how can they contend that registration and licensing requirements are not?[27]
In short, even if the historical evidence does establish an individual right to arms, it remains to define its parameters, particularly with regard to gun control rather than gun prohibition-confiscation.[28] One of the purposes of this Article will be to sketch out at (p.211)least some of the very substantial limitations on the right of individuals to keep and bear arms suggested by the historical evidence.[29] First, however, the controversy between the individual right and the exclusively state's right views must be resolved. The evidence to be examined must include: the literal language of the second amendment; the history of its proposal and ratification; the philosophical and historical background that gave rise to the Founders' belief in "the necessity of an armed populace to effect popular sovereignty";[30] and the contemporary understanding of the second amendment. This Article will then consider the amendment's subsequent judicial interpretation, and the question of its incorporation against the states, before returning to constitutional limitations on the right to keep and bear arms.
The two opposing camps naturally rely on different interpretations of the origins of the second amendment. Proponents of the exclusively state's right view[31] see the amendment as responding to (p.212)article I, section 8, clauses 15 and 16, of the original Constitution. Those clauses give Congress the power to call out the militia and "to provide for organizing, arming and disciplining" it. According to the state's right interpretation, the amendment was motivated by fear that Congress might order the states' organized militias disarmed, thereby leaving the states powerless against federal tyranny. Thus, this view sees the amendment as a response to concerns that time and the course of American history have rendered anachronistic. During the Revolution, and the subsequent period of the Articles of Confederation, the states loomed larger than the federal government and jealously guarded their prerogatives against it. While the Constitution itself heralded a decisive (though limited) repudiation of those attitudes, they remained strong enough to assure two precatory admonitions a place in the Bill of Rights. These became the second and tenth amendments. The purpose of the second amendment was simply to place the states' organized military forces beyond the federal government's power to disarm, guaranteeing that the states would always have sufficient force at their command to nullify federal impositions on their rights and to resist by arms if necessary.[32] State's right proponents also link the amendment to the traditional Whig fear of standing armies. Though the federal government could not be denied authority to maintain a small army, the basic military defense of the country would rest in the states' reserved power to maintain their own organized military forces. These could be joined together to resist foreign invasion in time of need. Thus, the philosophy underlying the second amendment not only guaranteed the states' right to keep armed forces, but obviated any need for a massive federal military which might defeat them if they found it necessary to revolt.[33]
This state's right analysis renders the amendment little more than a holdover from an era of constitutional philosophy that received its death knell in the decision rendered at Appomattox Courthouse. Though it yet lingers in the Constitution, it does not (for it was never (p.213)so intended) guarantee the right of any individual against confiscation of arms. Rather, it guarantees an exclusive right of the states, which only the states have standing to invoke. This they need not do today when any value the amendment might presently have for them is satisfied by their federally-provided National Guard structure.
Advocates of the individual right position, on the other hand, rely on the fact that the natural reading of the amendment's phrase "right of the people" is that it creates not a state right, but one which individuals can assert. This is how the identically phrased[34] first and fourth amendments are interpreted.[35] Furthermore, the individual right advocate may accept the state's right theory and simply assert that, even though one of the amendment's purposes may have been to protect the states' militias,[36] another was to protect the individual right to arms. Indeed, the evidence suggests it was precisely by protecting the individual that the Framers intended to protect the militia.[37] In thus yielding to the primary strength of the opposing argument, individual right advocates define the burden that the exclusively state's right theorist must bear. To demonstrate that no individual right was intended, he must show not just that there was a desire to protect the states, but that there was no desire to protect individuals--despite the most natural reading of the amendment's phraseology. As we shall see, this is a particularly difficult burden to bear. Such debate as the amendment received is sparse and inconclusive, while other legislative history strongly supports the proposition that protection of an individual right was at least one of the amendment's purposes.[38](p.214)
In general, the text of the second amendment, and of the Bill of Rights as a whole, provides a series of insuperable obstacles to an exclusively state's right interpretation. State's right analyses have tended not to come to grips with these obstacles; if they focus on the amendment's wording at all, it is only on the word "militia," assuming that the Framers meant "militia" to refer to "a particular military force," i.e., the states' home reserve, now federalized as the National Guard.[39] In fact, though not unknown in the 18th Century,[40] that usage was wholly secondary to the one Webster classifies as now least used. "The whole body of able-bodied male citizens declared by law as being subject to call to military service."[41] As the paragraphs below demonstrate, the Framers' understanding of the meaning of "militia" and the other phrases of the second amendment seriously embarrasses the state's right argument.
Throughout their existence, the American colonies had endured the constant threat of sudden attack by Indians or any of Britain's Dutch, French and Spanish colonial rivals.[42] Even if they had wanted a standing army, the colonists were unable either to afford the cost or to free up the necessary manpower. Instead, they adopted the ancient practice that was still in vogue in England, the militia system. The "militia" was the entire adult male citizenry, who were not simply allowed to keep their own arms, but affirmatively required to do so. In the pre-colonial English tradition there had been no police and no standing army in peacetime.[43] From time immemorial every free Englishman had been both permitted and required to keep such arms as a person of his class could afford both for law enforcement and for military service.[44] With arms readily available (p.215)in their homes, Englishmen were theoretically prepared at all times to chase down felons in response to the hue and cry, or to assemble together as an impromptu army in case of foreign invasion of their shire.[45]
When the American colonies were founded the militia system was in full flower in England. It was adopted perforce in the colonies, which were thousands of miles by sail from any succor the Mother Country might provide. With slight variations, the different colonies imposed a duty to keep arms and to muster occasionally for drill upon virtually every able-bodied white man between the age of majority and a designated cut-off age. Moreover, the duty to keep arms applied to every household, not just to those containing persons subject to militia service.[46] Thus, the over-aged and seamen, who were exempt from militia service, were required to keep arms for law enforcement and for the defense of their homes from criminals or foreign enemies.[47] In at least one colony a 1770 law actually required (p.216)men to carry a rifle or pistol every time they attended church; church officials were empowered to search each parishioner no less than fourteen times per year to assure compliance.[48] In 1792 Congress, meeting immediately after the enactment of the second amendment, defined the militia to include the entire able-bodied military-age male citizenry of the United States and required each of them to own his own firearm.[49]
What does this suggest about the word "militia" as used in the amendment? The American Civil Liberties Union's argument against an individual right interpretation states that the amendment uses "militia" in the sense of a formal military force separate from the people.[50] But this is plainly wrong. The Founders stated what they meant by "militia" on various occasions. Invariably they defined it in some phrase like "the whole body of the people,"[51] while their references to the organized-military-unit usage of militia, which they called a "select militia," were strongly pejorative.[52](p.217)
In short, one purpose of the Founders having been to guarantee the arms of the militia, they accomplished that purpose by guaranteeing the arms of the individuals who made up the militia. In this respect it would never have occurred to the Founders to differentiate between the arms of the two groups in the context of the amendment's language.[53] The personally owned arms of the individual were the arms of the militia.[54] Thus, the amendment's wording, so opaque to us, made perfect sense to the Framers: believing that a militia (composed of the entire people possessed of their individually owned arms) was necessary for the protection of a free state, they (p.218)guaranteed the people's right to possess those arms.[55] At the very least, the Framers' understanding of "militia" casts doubt on an interpretation that would guarantee only the state's right to arm organized military units.[56]
The second amendment's literal language creates another, even more embarrassing problem for the exclusively state's right interpretation. To accept such an interpretation requires the anomalous assumption that the Framers ill-advisedly used the phrase "right of the people" to describe what was being guaranteed when what they actually meant was "right of the states."[57] In turn, that assumption leads to a host of further anomalies. The phrase "the people" appears in four other provisions of the Bill of Rights, always denoting rights pertaining to individuals. Thus, to justify an exclusively state's right view, the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used "right of the people" in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment's "right of the people" had reverted to its normal individual right meaning; (4) "right of the people" was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished "the states" from "the people," although it had failed to do so in the second amendment. Any one of these textual incongruities demanded by an exclusively state's right position dooms it. Cumulatively they present a truly grotesque reading of the Bill of Rights.(p.219)
The casual attention state's right proponents pay to the text is exemplified by a third problem inherent in the amendment's literal language. Professor Levin argues that the amendment's use of the term "to bear" arms supports an exclusively state's right view: contemporary statutory usage shows eighteenth-century writers using "bear" in reference to militiamen carrying their arms when mustered to duty; whereas Blackstone uses the phrase to "have" arms in referring to individual possession of them by right.[58] Remarkably, Professor Levin seems to have overlooked the fact that the word that the amendment uses to guarantee a right to possess arms is "keep," "bear" being used only to denote carrying them outside the home. Obviously, even if a negative pregnant as to possession could have been inferred had the amendment used "bear arms" alone, that inference disappears completely when "to keep" is added.
Had Professor Levin explored colonial statutory usage of "to keep," as well as "to bear," he would have found his "to bear" argument confirmed, but only in a way which decisively refutes his exclusively state's right interpretation. Smith's extensive statutory review confirms that "bear" did generally refer to the carrying of arms by militiamen.[59] Since statutes referring to the transportation of arms by individuals outside the militia context (e.g., statutes forbidding blacks and Indians to transport them) invariably used the word "carry" instead of "bear," he concludes that the amendment's use of "bear" is designed to protect the carrying of arms outside the home only in the course of militia service.[60] In contrast, Smith finds that "keep" was commonly used in colonial and early state statutes to describe arms possession by individuals in all contexts, not just in relation to militia service. Colonial statutes did require militiamen to "keep" arms in their homes, but they also required the over-aged, seamen and others exempt from militia service to "keep" arms in their homes. Moreover, what blacks and Indians (who were excluded from the militia) were forbidden to do was "keep" guns in their homes. The one context in which "keep" was not used was as a description of arms possession by public agencies (as opposed to individuals): "only occasionally, and then only in the 17th Century, are towns and colony governments said to 'keep' the public arms."[61] (p.220)Based on colonial statutory usage then, the amendment's phrase "right of the people to keep" imports not a right of the states or one limited to military service, but a personal right to possess arms in the home for any lawful purpose.
Additional textual evidence of the unsoundness of the exclusively state's right position is that it renders the phrase "to keep" in "to keep and bear" superfluous--as Professor Levin's obliviousness to it unconsciously dramatizes. If the Framers' only concern had been to protect the militia's right to have arms when actually mustered, "to bear" would have sufficed. The words "to keep" take on meaning only if what is being protected is the individual's own arms, rather than those arms of the state that would be dispensed to him from an armory whenever the militia was mustered.[62]
Finally, the organizational structure of the Bill of Rights cuts against the exclusively state's right position. The rights specifically guaranteed to the people are contained in the first nine amendments, with the rights reserved to the states being relegated to the tenth. If the Framers had viewed the second amendment as a right of the states, they would have moved it back to the ninth or tenth amendment instead of placing it second.[63]
As we have seen, the language of the second amendment supports the individual interpretation of the right to keep and bear arms. The nature of the controversy over ratification of the Constitution and the various proposals for and debate over the Bill of Rights also buttress the individual right view, for the one thing all (p.221)the Framers agreed on was the desirability of allowing citizens to arm themselves.
The Founding Fathers were necessarily influenced by the fact that the entire corpus of republican philosophy known to them took English and classical history as a lesson that popular possession of arms was vital to the preservation of liberty and a republican form of government.[64] The proponents and the opponents of ratification of the Constitution equally buttressed their conflicting arguments on the universal belief in an armed citizenry.[65] The proponents denied that the newly strengthened federal government could ever be strong enough to destroy the liberties of an armed populace: "While the people have property, arms in their hands and only a spark of noble spirit, the most corrupt congress must be mad to form any project of tyranny."[66] As Noah Webster put it in a pamphlet urging ratification: "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe."[67]
But this line of argument opened the Federalists up to a telling riposte: Since the Constitution contained no guarantee of the citizenry's right to arms, the new federal government could outlaw and confiscate them, thereby destroying the supposed barrier to federal despotism. George Mason recalled to the Virginia delegates the colonies' experience with Britain, in which the monarch's goal had been "to disarm the people; that ... was the best and most effectual way to enslave them."[68] Together Mason and Richard Henry Lee are generally given preponderant credit for the compromise under which the Constitution was ratified subject to the understanding that it would immediately be augmented by a Bill of Rights. Lee's influential writing on the ratification question extolled the importance of the individual right to arms, opining that "to preserve liberty, it is (p.222)essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them."[69]
In line with these sentiments, New Hampshire, the first state to ratify the Constitution, officially recommended that it include a bill of rights providing "Congress shall never disarm any citizen, unless such as are or have been in actual rebellion."[70] New York and Rhode Island also recommended constitutionalizing the right to arms.[71] Although a majority of the Pennsylvania convention ratified the Constitution unconditionally, rejecting suggestions that a bill of rights be recommended or required, a substantial portion of the Pennsylvania delegates broke away on this issue. As a rump they formulated and published a series of proposals, including freedom of speech, press, due process of law and the right to keep and bear arms, which proved particularly influential in spurring the adoption of similar recommendations in the subsequent state conventions. The individual right nature of the Pennsylvania right to arms proposal is unmistakable:
That the people have a right to bear arms for the defense of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals ....[72]
Similarly, Samuel Adams proposed to the Massachusetts ratification convention an amendment guaranteeing the right to bear arms.[73]
The strength and universality of contemporary sentiment on the issue of the individual's right to arms may be gauged with reference to the number of amendatory proposals which included it. Amending the constitution to assure the right to arms was endorsed by five state ratifying conventions. By comparison, only four states suggested that the rights to assemble, to due process, and against cruel and unusual punishment be guaranteed; only three states suggested that freedom of speech be guaranteed or that the accused be entitled to know the crime for which he would be tried, to confront his accuser, to present and cross-examine witnesses, to be represented by counsel, and to not be forced to incriminate himself; only two states proposed that double jeopardy be barred.[74] Such unanimity helps (p.223)demonstrate that both Federalists and Anti-Federalists accepted an individual right to arms; the only debate was over how best to guarantee it.
To secure ratification of the Constitution, the Federalists had committed themselves to the addition of "further guards for private rights."[75] To this end, the Federalists put forward Madison, the leading and most ardent supporter of the original Constitution in Congress, to draft the proposed amendments. Madison's own notes on his proposal reflect the ultimate organization of the Bill of Rights;[76] his notes on the amendments, in which the right to arms appears very early, state that the amendments "relate first to private rights."[77] Equally corrosive of the exclusively state's right view is the original organizational scheme revealed by Madison's notes. Not conceiving the idea of simply appending the whole set of amendments to the Constitution as a discrete document (today's "Bill of Rights"), Madison intended to attach them to, or after, each section of the original Constitution to which they related. Had he viewed the right to arms as merely a limitation on article I, section 8's provisions concerning congressional control over the militia, he would have inserted it in section 8 immediately after clauses 15 and 16. Instead, he planned to insert it with freedom of religion, of the press and various other personal rights in section 9, immediately following clause 3, which establishes the rights against bills of attainder and ex post facto laws.[78]
Certainly the amendment was understood by Madison's congressional colleagues as guaranteeing an individual right. For instance, in private correspondence Congressman Fisher Ames noted of Madison's proposals that "the rights of conscience, of bearing arms, [etc.] ..., are declared to be inherent in the people."[79] In addition, two written interpretations on the proposed amendments were available (p.224)to the members of the first Congress.[80] The first, and more authoritative--by virtue of having received Madison's imprimatur--was a widely reprinted article by his ally and correspondent Tench Coxe.[81] Having discussed the first amendment, Coxe moved on to describe the second in unmistakably individual right terms:
As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[82]
A similar interpretation appears from Anti-Federalist editorials. Samuel Adams, who had taken the modified Anti-Federalist position of conditioning ratification upon the addition of a guarantee of personal rights, had proposed in the Massachusetts Convention that "the said constitution be never construed ... to prevent the people of the United States who are peaceable citizens, from keeping their own arms."[83] Anti-Federalist editorials triumphantly quoted this and Adams' other proposals as Madison's Bill of Rights was wending its way through the House of Representatives. The editorials crowed that the Anti-Federalist champion, Adams, had been vindicated because "every one of" his proposals (except the prohibition against a standing army) had been adopted in Madison's bill and "most probably will be adopted by the federal legislature."[84] Calling upon the public to compare Madison's bill to Adams' previous proposals, the editorials demanded that the Federalists "in justice therefor for that long tried republican" formally acknowledge Samuel Adams as the real father of Madison's bill.[85]
The significance of the bipartisan interpretation so partisanly reflected in these editorials and the Tench Coxe article is incontrovertible. The arch-Federalist Coxe described the amendment as guaranteeing to the people "their private arms." The Anti-Federalist editorials agreed totally, seeing the amendment's language as identical (p.225)to Adams' previous clearly individual right formulation. If any member of the first Congress had any difficulty in understanding that the amendment's intention was to protect the individual possession of private arms by the general citizenry, these newspaper articles would surely have stilled it. Nor is there reason to imagine that they experienced any such difficulty. Absent some substantial reason particular to the context, the phrase "right of the people" clearly indicates that an individual right was intended. The context here--its use throughout the Bill of Rights--consistently supports an individual right intent.
The second amendment, then, was a response to the perceived lack of individual rights guarantees, not, as state's right proponents contend,[86] a reaction to the standing army and militia control provisions of article I, section 8. The latter source of Anti-Federalist wrath was simply not addressed by the second amendment.[87] Nothing on the face of the amendment deals with the article I, section 8, concerns; certainly Madison did not see it as changing those portions of the Constitution.[88] The Anti-Federalists themselves were not placated by the amendment: when the proposed Bill of Rights reached the Senate, they unsuccessfully attempted to amend or repeal the offending clauses.[89] Thus, the second amendment cannot be read as a response to the Anti-Federalist objections to article I, section 8. Rather, the fear of federal government encroachment on the states was allayed by guaranteeing the individual right to arms, and thereby, the arms of the militia.
The unanimity with which Federalists and Anti-Federalists supported (p.226)an individual right to arms is a reflection of their shared philosophical and historical heritage.[90] Examination of contemporary materials reveals that the Founders ardently endorsed firearms possession as a personal right[91] and that the concept of an exclusively state's right was wholly unknown to them. The most that such an examination does to dispel the amendment's individual right phraseology is to suggest that the amendment had multiple purposes: the people were guaranteed "arms for their own personal defense, for the defense of their states and their nation, and for the purpose of keeping their rulers sensitive to the right of the people."[92] In short, detailed exploration of the Founding Fathers' attitudes as expressed in their utterances powerfully supports an individual right interpretation, though one which recognizes that the right was viewed as beneficial to society as a whole.[93]
Though such attitudes are apparent in the Founders' utterances, such contemporary materials have been so completely ignored in (p.227)much of the modern legal literature on the amendment that they require extended consideration here.[94] Perhaps the difficulty experienced by many modern scholars in dealing with the Framers' positive attitudes toward gun ownership can be explained in terms of Bruce-Briggs' "culture conflict" theory of the gun control controversy:
But underlying the gun control struggle is a fundamental division in our nation. The intensity of passion on this issue suggests to me that we are experiencing a sort of low-grade war going on between two alternative views of what America is and ought to be. On the one side are those who take bourgeois Europe as a model of a civilized society: a society just, equitable, and democratic; but well ordered, with the lines of responsibility and authority clearly drawn, and with decisions made rationally and correctly by intelligent men for the entire nation. To such people, hunting is atavistic, personal violence is shameful, and uncontrolled gun ownership is a blot upon civilization.
On the other side is a group of people who do not tend to be especially articulate or literate, and whose world view is rarely expressed in print. Their model is that of the independent frontiersman who takes care of himself and his family with no interference from the state. They are "conservative" in the sense that they cling to America's unique pre-modern tradition--a non-feudal society with a sort of medieval liberty at large for everyman. To these people, "sociological" is an epithet. Life is tough and competitive. Manhood means responsibility and caring for your own.[95]
If we assume that most modern scholars fall into the first of the modern value categories described, it becomes understandable why they might find the views of the Founders so foreign, indeed repugnant, as to eschew exploring them--instead reflexively projecting their own values onto the amendment. For the second of the value categories described accords perfectly with the views of the Founders, except that, as intellectuals themselves, its aura of anti-intellectualism would have struck no responsive chord in them.(p.228)
"One loves to possess arms," Thomas Jefferson, the doyen of American intellectuals, wrote to George Washington on June 19, 1796.[96] We may presume that Washington agreed, for his collection contained fifty guns, and his own writings are full of laudatory references to various firearms he owned or examined.[97] John Adams also agreed. In a book on American constitutional principles he suggested that "arms in the hands of citizens" might appropriately be used in "private self-defense" or "under partial order of towns."[98] Likewise, writing after the ratification of the Constitution, but before the election of the First Congress, James Monroe included "the right to keep and bear arms" in a list of basic "human rights" that he would propose be added to the Constitution.[99]
While Monroe and Adams both supported ratification of the Constitution, its most influential advocate was James Madison. In The Federalist No. 46 he confidently contrasted the federal government it would create to the European despotisms he contemptuously described as "afraid to trust the people with arms." He assured his fellow countrymen that they need never fear their government because of "the advantage of being armed, which the Americans possess over the people of almost every other nation ...."[100] Madison, who had, during the Revolution, exulted at his own and his militia comrades' ability to hit a target the size of a man's head at one hundred paces, many years later restated the sentiments of The Federalist No. 46 thusly:
A government resting on a minority is an aristocracy, not a Republic, and could not be safe with a numerical and physical force against it, without a standing army, an enslaved press, and a disarmed populace.[101]
On the other side of the ratification debate, Anti-Federalist Patrick Henry left no doubt as to his feelings regarding the right to possess arms. During the Virginia ratification convention he objected equally to the Constitution's inclusion of clauses specifically authorizing (p.229)a standing army and giving the federal government control of the militia, and to its omission of a clause forbidding disarmament of the individual citizen: "The great object is that every man be armed.... Everyone who is able may have a gun."[102] The Virginia delegates, remembering that the Revolutionary War had been sparked by the British attempt to confiscate the patriots' privately owned arms at Lexington and Concord, apparently agreed. Henry was appointed co-chairman of a committee to draft a Bill of Rights to be added to the Constitution.[103] The other co-chairman was George Mason, whose warning against a federal constitution that failed to guarantee a right to arms has already been quoted.[104]
Thomas Jefferson played little part in this debate from the remote vantage of his position as ambassador to France, but his views on arms possession as a right may be deduced from the model state constitution he wrote for Virginia in 1776. That document included the explicit guarantee that "[n]o free man shall be debarred the use of arms in his own lands."[105] All the evidence suggests that Jefferson was strongly in favor of gun ownership. A talented inventor and amateur gunsmith himself, Jefferson maintained a substantial armory of pistols and long guns at Monticello and introduced the concept of interchangeable parts into American firearms manufacture.[106] In a letter to a nephew (then fifteen) Jefferson offered the following advice:
A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives a moderate exercise to the Body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks.[107]
One intellectual historian has summarized the utterances of the Founding Fathers as expressing "an almost religious quality about the relationship between men and arms."[108] When viewed in the light of this attitude and their English militia tradition, as buttressed (p.230)by the republican philosophical school with which the Founders were familiar, the language of the second amendment becomes perfectly intelligible: believing self-defense an inalienable natural right,[109] and deriving from it the right to resist tyranny,[110] they guaranteed the right (derived from the foregoing) of individuals to possess arms.[111] Further, this also protected the possession of privately owned arms of the militia (which they understood to include most of the adult male population),[112] an institution they regarded as "necessary to the security of a free state."[113]
Fully as great an obstacle to modern understanding as Bruce-Briggs' (p.231)culture conflict is the inattention of modern political philosophy to "the dynamic relationship" that the Founders' philosophy saw "between arms, the individual, and society."[114] Our world is the product of its history: our view of that world is the product of the lessons drawn from that history by the thinkers our society embraces. A conscious effort of will and imagination is necessary to assume the mind-set of eighteenth-century men whose education began with the classics, particularly the works of Plato, Aristotle and Cicero, and ended with the works of Sidney, Rousseau and Montesquieu. Thus were the Framers steeped in an understanding of liberty grounded in the role of arms in society. Thus,
the very character of the people--the cornerstone and strength of a republican society--was related to the individual's ability and desire to arm himself against threats to his person, his property and his state.[115]
This viewpoint devolved upon eighteenth-century liberals through historical exegesis which was then viewed as the key to philosophical truth. To them classical Greece and Rome represented the highest point that civilization had yet achieved--followed by a long dark age of brutal authoritarianism from which humanity in their time was still recovering. The history of the Greek city-states and "the Roman Republic provided at once an ideal and a condign warning of the frailty of republican institutions."[116] Both that ideal and that warning were inextricably connected in the Founders' minds with the individual possession of arms. English and classical law recognized in arms possession the hallmark of citizenship and personal freedom. Thus the Greeks and Romans distinguished the mere helot or metic who was deemed to have no right to arms from the free citizen whose privilege and obligation it was to keep arms in his home so as always to be ready to defend his own rights and to rush to defend the walls when the tocsin warned of approaching enemies.[117] The philosophical tradition embraced by the Founders regarded the survival of popular government and republican institutions as wholly dependent upon the existence of a citizenry that was "virtuous" in upholding that ancient privilege and obligation. (p.232)In this philosophy, the ideal of republican virtue was the armed freeholder, upstanding, scrupulously honest, self-reliant and independent--defender of his family, home and property, and joined with his fellow citizens in the militia for the defense of their polity.[118] The congruence between this ideal of republican virtue and the second of the modern value attitudes described by Bruce-Briggs is evident.
The same thought that held arms ownership vital to republican citizenship also warned the Framers that to be disarmed by government was tantamount to being enslaved by it; the possession of arms was the vital prerequisite to the right to resist tyranny.[119] The Founders learned from Aristotle that a basic characteristic of tyrants was "mistrust of the people; hence they deprive them of arms."[120] Aristotle showed that confiscation of the Athenians' personal arms had been instrumental to the tyrannies of the Peisistratus and the Thirty.[121] Machiavelli taught the Founders that Augustus and Tiberius had similarly destroyed the Roman republic.[122] Only so long as Greek and Roman citizens retained their personal arms did they retain their personal liberties and their republican form of government. That lesson was brought home to the Founders by the entire corpus of political philosophy and historical exegesis they knew: "Among Renaissance theorists as dissimilar as Nicholas Machiavelli and Sir Thomas More, Thomas Hobbes and James Harrington, there was a concensus that only men willing and able to defend themselves could possibly preserve their liberties."[123] The theme of personal (p.233)arms possession as both the hallmark and the ultimate guarantee of personal liberty appears equally in the writings of Cicero, Sidney, Locke, Trenchard, Rousseau,[124] Sir Walter Raleigh,[125] Blackstone[126] and Nedham.[127] That lesson must have been even more firmly cemented in the Founders' minds by the fact that authoritarian philosophers made the same observation in reverse, recommending arms prohibitions as the surest security for absolutism.[128]
Moreover, although the Founders' antipathy to gun bans arose out of political philosophy, it should not be supposed that eighteenth-century liberals were unaware of the crime control rationale for such legislation and had no answer to it. In the French despotism they abhorred, the single most important duty of the police, "protecting" the public security, was effected through enforcing arms prohibitions.[129] Although actually aimed at continuing the subordination of the peasantry, the ostensible reason for the French arms prohibition was to reduce homicide and other violent crime, and so was it rationalized by the French monarchs and their apologists.[130] The Founders gave such arguments short shrift, believing that if a population were actually unfit to possess arms, it was only because of the degradation induced by subjection to the oppression and exploitation of aristocratic and monarchical authoritarianism.[131] For a (p.234)free and virtuous people, eighteenth-century liberalism's response, as formulated by Montesquieu and Beccaria, to the crime control argument was simply an expansive rhetorical rendition of today's slogan "when guns are outlawed, only outlaws will have guns."
False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty--so dear to men, so dear to the enlightened legislator--and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree.[132](p.235)
The influence of the republican philosophical tradition of the armed people upon the Founding Fathers is obvious from their own statements.[133] Likewise, the writings of lesser known figures and newspaper editorials of the period abound with favorable references to the citizenry's widespread possession of personal arms as characteristic of the "diffusion of power" necessary to preserve liberty. These writings also express fears that the new federal government might disarm the populace, leading to a "monopoly of power [which] is the most dangerous of all monopolies."[134] In short, the accepted philosophy of the times treated the right to arms as among the most vital of personal rights.
Further evidence of the link between republican government and the possession of arms was given the Founders by their view of the mother country's history. Despite England's lack of a police force, legislation prohibiting possession of firearms by others than the high nobility had been instituted under the aegis of the hated Game Acts.[135] Though the ostensible purpose was to protect England's dwindling game resources, the Acts' covert purpose was confirmed by Blackstone: "prevention of popular insurrections and resistance to the government, by disarming the bulk of the people ... is a reason oftener meant than avowed ...."[136] Particularly indicative of the nefarious intent of the 1671 Game Act (at least to the minds of the Founders) was that it was evidently modeled on the French example,[137] and had appeared in the reign of Charles II. Living as we do several centuries removed, in an age in which religious tolerance is so much the norm as to be taken for granted, it is difficult for us to understand the almost hysterical execration the Founders felt for the restored Stuarts. The dissolute and debauched Charles II had martyred Algernon Sidney, the Founders' beloved philosopher of the armed people. Charles and his upright but intolerantly Catholic (p.236)brother James II were viewed as traitors who had plotted to place England under the yoke of their Catholic ally Louis XIV of France; through the mechanisms of a standing army and the importation of French troops, the free English population was to be disarmed and reduced to the condition of the French peasantry, and the Protestant religion was to be extirpated with fire and sword in England as Louis had done in France.[138]
Arms confiscation was a basic technique of the absolutism that the Stuarts, at least in the Framers' eyes, had determined to impose on England after their return from exile in France. To that end both Charles and James seized upon a series of new and old confiscatory devices, not the least of which was the 1671 Game Act.[139] Conscious of the disaffection of many of his subjects, and of the precariousness of his hold on the rest, the wily Charles never went beyond sporadic and highly selective arms confiscations. But enforcement under the Game Act and other legislation was enormously (though still selectively) increased during James' short reign. In addition to disarming the actively rebellious, this policy deterred the expression of any kind of dissent or opposition. In an age as subject to apolitical crime and violence as seventeenth- to eighteenth-century England, few people were courageous or foolhardy enough to want to live without weapons to defend themselves and their families.[140]
Having rid itself of James through the "Glorious Revolution," Parliament composed a list of grievances against him, turning it into a Bill of Rights to which royal assent was required as part of the compact under which William and Mary were allowed to ascend the English throne. Seventh among the grievances was that James had caused his Protestant subjects "to be disarmed at a time when Papists were both armed and imployed [sic] contrary to law."[141] It was concomitantly guaranteed "that the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law." The significance of the phrase "as allowed by law" is (p.237)unclear. It could have been meant to specify that the right to arms which Protestants (who then composed about ninety-eight percent of the English population)[142] were receiving was no greater than that which had pre-existed at common law. To avoid a lengthy debate which might delay the Bill's enactment, Parliament had strictly agreed that "no new principle of law" was to be included; the Bill was to be "a mere recital of those existing rights of Parliament and of the subject, which James had outraged, and which William must promise to observe."[143]
More likely, Parliament meant the phrase "as allowed by law" to preserve its own power to disarm the subjects, simply clarifying that only the king was prevented from doing so. If this is what the phrase stood for, the qualification it adds to the English Bill of Rights is manifestly unimportant in interpreting the second amendment, which was expressly intended to restrict the legislative as well as the executive branch.[144] Partisans of the exclusively state's right theory have seemed to invest the question of Parliament's power with some significance, commenting that twentieth-century England has adopted one of the world's most stringent anti-gun policies, notwithstanding the 1689 Bill of Rights.[145] If this is intended to suggest that Congress is free to do likewise, it completely misses the distinction between the American system of constitutional rights and the non-constitutional English system in which even the most sacrosanct (p.238)rights guaranteed by one Parliament may be abrogated by its successors. Parliament's power to disarm no more proves that Congress can violate the second amendment than the fact that twentieth-century Parliaments have abolished various traditional rights of the criminally accused in Northern Ireland[146] proves that Congress is free to legislate in derogation of the fourth, fifth and sixth amendments.
What is significant about the English Bill of Rights is the undeniable support that it provides for the individual right position. There were no states in England to be protected against disarmament. So what Parliament was complaining of could only have been the seizure of arms from individual citizens in violation of their common-law rights. Because the Founders knew that the English forerunner to their own Bill of Rights contained an individual right to arms, and because the Founders themselves emphatically endorsed such a right, it seems unlikely that the right to arms which they wrote into their own Constitution was not intended, at least partly, to protect such an individual right.
To avoid the highly adverse implications of the English Bill of Rights, some state's right exponents have resorted to what can only be described as fudging the facts. They deny that James II was actually confiscating any arms from his Protestant subjects. They assert, instead, that Parliament used the word "disarmed" merely figuratively, referring to the fact that James had replaced various Protestant officials with Catholics, particularly in the English military.[147] This interpretation is demonstrably untrue. Space does not permit full detailing of the later Stuarts' arms confiscation efforts.[148] Sufficient for present purposes are the details noted in the Report of the Subcommittee on the Constitution:
In 1662, the Militia Act was enacted empowering officials "to search for and seize all arms in the custody or possession of any person or persons whom the said lieutenants or any two or more of their deputies shall judge dangerous to the peace of the kingdom." Gunsmiths were ordered to deliver to the government lists of all purchasers. (p.239)These confiscations were continued under James II, who directed them particularly against the [Protestant] Irish population: "Although the country was infested by predatory bands, a Protestant gentleman could scarcely obtain permission to keep a brace of pistols." [Quoting Macauley's History of England; footnotes deleted.]
In 1688, the government of James was overturned in a peaceful uprising which came to be known as "The Glorious Revolution." Parliament resolved that James had abdicated and promulgated a Declaration of Rights, later enacted as the Bill of Rights. Before coronation, his successor William of Orange, was required to swear to respect these rights. The debates in the House of Commons over this Declaration of Rights focused largely upon disarmament under the 1662 Militia Act. One member complained that "an act of Parliament was made to disarm all Englishmen, who the lieutenant should suspect, by day or night, by force or otherwise--this was done in Ireland for the sake of putting arms into Irish [Catholic] hands." The speech of another is summarized as "militia bill--power to disarm all England--now done in Ireland." A third complained of "Arbitrary power exercised by the ministry ... Militia--imprisoning without reason; disarming--himself disarmed." Yet another summarized his complaints "Militia Act--an abominable thing to disarm the nation ...."[149]
These and various other examples establish beyond peradventure that James II aggressively enforced the largely dormant arms proscriptions he had inherited so as to affect not only the common people but some of their elected representatives,[150] that this policy was diametrically contrary to the principles of the common law as they were then understood, and that one purpose of the English Bill of Rights was to place the possession of arms beyond monarchical interference--at least as far as the Protestant ninety-eight percent of the population was concerned.[151](p.240)
The final proof that an individual right was guaranteed by the second amendment lies in Madison's formulation of the amendment in terms that he must have known his contemporaries would interpret as protecting an individual right. As we shall see, that is how his contemporaries did read the amendment. Fundamental to understanding the original intention behind the Constitution is the observation that the Founders
were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.... [W]hen they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they would be shortly and easily understood. [For that reason,] the language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted.[152]
Reference to the great common law commentators known to the Founders shows Hawkins, Bracton and Coke all affirming the existence of a common law right to possess arms for home defense, while Blackstone included that right among those he classified as the five "absolute rights of individuals" at common law.[153]
Not only the great common law commentators, but also the English courts affirmed the individual right to arms. When Parliament overthrew the Stuarts, it wrote the common law liberty to possess arms into the English Bill of Rights. Thereafter English court decisions, reports of which were available to the Founders, had recognized that "a man may keep a gun for the defense of his house and family," denying that the Game Acts then current "prohibit a man from keeping a gun for his necessary defense...."[154] Moreover, the English Game Acts that prohibited firearms had never been a part of the colonial law,[155] which the Founders knew from their own (p.241)experience and to which they presumably referred in determining what the pre-existing "rights" were that the amendment guaranteed. Not only did colonial law allow every trustworthy adult to possess arms, but it deemed this right so vital that every colony or state had exempted firearms from distraint for execution because of debt.[156] Given this background, it is inconceivable that Madison and his colleagues in the first Congress would have chosen the language they did for the amendment unless they intended a personal right. They must necessarily have known that their undefined phrase "right of the people to keep and bear arms" would be understood by their contemporaries in light of to common law formulations like Blackstone's "absolute rights of individuals."
That indeed is precisely how their contemporaries did interpret it. The second amendment was analyzed in at least four legal commentaries, authored by men who were closely acquainted with Madison or other members of the first Congress. The earliest of these commentaries, written by Madison's ally Tench Coxe, has already been quoted.[157] Next came St. George Tucker's 1803 edition of Blackstone's Commentaries, annotated to explain parallel developments in American law.[158] We may assume that Tucker was learned in American law since he was a justice of the most distinguished court of his day, the Virginia Supreme Court. His familiarity with the thought underlying the Bill of Rights may also be assumed. Not only was he an important member of the generation that produced it, but the Virginia circles in which he moved included both Madison and Jefferson.[159] Tucker annotated Blackstone's inclusion (p.242)of the right to possess firearms as among the "absolute rights of individuals" in England, with the observation that in America this right had been constitutionalized by the enactment of the second amendment.[160] William Rawle, whose general commentary on the Constitution appeared in 1825, seems also to have never considered any but an individual right interpretation of the second amendment. Rawle was both influential and well-known enough to have been offered the attorney generalship several times by Washington.[161] So far was Rawle from the state's right concept that he flatly declared that the second amendment prohibited state, as well as federal, laws disarming individuals.[162] More enduring in its fame than Rawle's work, though not necessarily more influential in its time, is the Commentaries on the Constitution of Mr. Justice Story, a younger contemporary of the Founders and a Jefferson appointee to the United States Supreme Court. He, too, eulogized "[t]he right of the citizens to keep and bear arms" as "the palladium of the liberties of a republic."[163]
One further point about the contemporaneity of these commentaries suggests itself: as we have seen, Coxe's article received Madison's approval even before the Amendment's enactment.[164] Published almost fifteen years thereafter, St. George Tucker's American edition of Blackstone became a standard reference work on Anglo-American common law for early nineteenth-century Americans. Literally hundreds of those who had served in Congress or state legislatures during the enactment of the Bill of Rights were still alive at that time. Many of them, including Madison himself, were still living (p.243)twenty-five years later when Rawle's and Story's commentaries were published.[165] Those commentaries remained the standard nineteenth-century reference works on the Constitution at least until Cooley appeared.[166] If these commentaries were erroneously presenting as an individual right of the people what was intended to be only a collective right of the states, surely one or more former legislators would have remonstrated the authors or publishers and, if correction was not forthcoming, publicly clarified the record.
To reiterate, the amendment was written in language which its authors would have adopted only if they intended to secure an individual right, because they knew that that was how their audience would inevitably understand it. Equally dispositive, that audience, composed of people like Coxe, Tucker, Rawle, and Story of the Framers' own generation, and of judges and commentators from the succeeding generations closest in time to the Framers, uniformly did so understand the amendment.[167] The general rule in constitutional construction is one of deference to contemporary interpretations with the greatest weight being accorded those interpretations closest in time to the enactment of the constitutional provision in question.[168] The tone and unanimity of contemporary interpretation of the second amendment discloses what was apparently a perfectly clear understanding to those generations closest in time to the amendment's formulation. Thus, an exclusively state's right theory cannot survive the observation that it is so much a product of the twentieth century that neither the Framers nor any eighteenth- or nineteenth-century commentator or court breathed even the slightest intimation of it.(p.244)
In attempting to identify a pre-twentieth century origin for the exclusively state's right position, several of its proponents have noted that one pre-1789 state constitutional guarantee of a right to arms, and several early post-1789 ones specified a "common defense" purpose, without mentioning any individual self-defense purpose.[169] If such provisions had been interpreted as not guaranteeing an individual right to provide for common defense, they would be persuasive evidence that such a position was known to the Framers. Instead, every one of the twenty-two pre-1906 state cases construing a state constitutional right to arms provision, including some provisions that referred only to a common defense purpose, recognized an individual right to possess at least militia-type arms.[170] A nonindividual right interpretation first appeared in a 1906 Kansas decision which is plainly wrong even as a construction of the Kansas constitution.[171](p.245)
Implicit in some of these nineteenth-century individual right cases is the proposition that even if a militia or "common defense" motive is specified for guaranteeing a right, that right is measured by the language of the guarantee given, and is not qualified or limited in the absence of some specific qualifying language.[172] As we shall see, other courts and commentators have construed the statement of a militia or "common defense" purpose as limiting the kinds of arms guaranteed individuals to those commonly used by soldiers.[173] Even where the right specified is to have a gun for one purpose, however, one who lawfully has it for that purpose may properly use it for such other purposes as hunting or the defense of his life or another's.
Some of these nineteenth-century state cases were based upon the second amendment in addition to the state constitutional provision.[174] Many of them upheld specific and limited arms controls on the ground that, while the right was individual in nature, it included only militia-type arms and extended only to carrying them openly, not concealed.[175] The only flat prohibitions of gun ownership that were upheld were laws from the slave states that prohibited guns to slaves or free blacks. The reasoning of these cases makes them the proverbial exception that proves the rule. Beginning from the universally accepted individual right premise, these courts reasoned that (p.246)blacks could be denied the right to arms because they were excluded by race from all privileges of citizenship.[176] Adopting that conclusion in Dred Scott,[177] Mr. Chief Justice Taney offered an argumentum ad horribilis that exemplified the individual right interpretation expounded by all the courts and commentators relatively close in time to the amendment. Obviously blacks could not be recognized as citizens, Taney declared, because then the (to him) salutary Southern laws requiring their disarmament could not stand in the face of constitutional guarantees of the right to arms.[178]
Dred Scott was apparently the only ante-bellum Supreme Court reference to right-to-arms guarantees. Several years after the Civil War the Court voided a federal prosecution of private persons for attempting to deprive blacks of their newly recognized rights as freedmen to assemble and to bear arms.[179] Pointing out that only private action had been alleged, the Court denied federal jurisdiction on the ground that freedom of assembly and the right to arms are guaranteed only against congressional infringement. But it obviously viewed the right to arms as an individual one, stating that the amendment leaves "the people to look [to state law] for their protection against any violation by their fellow citizens" of that right.[180]
Next came Presser v. Illinois,[181] in which the petitioner claimed that the amendment invalidated laws which prohibited the unlicensed organization, training and marching of para-military groups. The Presser Court responded by stressing the obvious: the subject matter of the second amendment is only the right of individuals to possess arms; constitutional provisions relating to group arm-bearing appear only in article I, sections 8 and 10. Moreover, those provisions refer only to the militia and formal state or federal military forces, not to private armies. Thus, the challenged state legislation simply did not fall within the amendment's subject matter. The Court also noted that, even if the right to arms had been implicated, the amendment guarantees it against only the federal government, not the states. This was standard nineteenth-century doctrine, based on prior holdings that the provisions of the Bill of Rights, standing alone, did not apply against the states themselves and were not made (p.247)applicable by the privileges and immunities clause of the fourteenth amendment.[182] That the Court rejected a first amendment claim on the same nonincorporation grounds emphasizes its implicit individual right view of the second amendment. Second and fourth amendment challenges were also rejected on that rationale as an additional ground in Miller v. Texas.[183] In both cases the Court treated the second amendment right similarly to first and fourth amendment rights, subjecting all three to the contemporary doctrine that individual rights were protected only against the federal government and not against the states. Likewise, in Robertson v. Baldwin the amendment was grouped with the Bill of Rights as a whole in illustrating the generalization that rights guaranteed to individuals are nevertheless subject to qualifications.[184]
United States v. Miller,[185] a 1939 case, is the Supreme Court's only extended analysis of the second amendment. Miller arose out of a challenge to an early federal gun law. During the decade of Prohibition, with its gang wars, and the subsequent depression years of John Dillinger and Bonnie and Clyde, sawed-off shotguns and submachine guns had become widely identified in the public mind as "gangster weapons."[186] The National Firearms Act of 1934[187] contained various provisions against such weapons, including a prohibition, which Miller and a confederate were accused of violating, against the possession of a sawed-off shotgun that had been transported in interstate commerce. The defendants successfully moved the trial court to void their indictment on the ground that this prohibition violated the second amendment. On the Government's appeal, (p.248)the Supreme Court reversed, emphasizing that the defendants had merely attacked the indictment (and, therefore, the statute) on its face, without any attempt at a factual demonstration that sawed-off shotguns were the kind of weapons contemplated by the amendment. The Court followed the reasoning of those nineteenth-century courts and commentators who construed the right to arms as individual but applicable only to those weapons commonly used for militia purposes:
In the absence of any evidence tending to show that possession or use of any "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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.[188]
This holding has been widely misunderstood, most surprisingly by proponents of the individual right position. They have even gone so far as to denigrate its authority by pointing out that it was rendered on the basis of only the Government's one-sided briefing.[189] Additionally, critics have attacked what they suppose to be the opinion's factual basis, pointing out that shotguns were used by regular troops in World War I and Vietnam, and by guerrillas, commandos, and so on in World War II and other twentieth-century conflicts.[190]
Equally surprising, state's right proponents have acclaimed the opinion. Ignoring the fact that its holding focuses entirely on the weapon, they have emphasized its language linking the amendment's purpose to the "militia": "With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."[191] But this statement, which appears at approximately the median point of the opinion, in fact repudiates the state's right argument when read in the context of what the Court indicated "the militia" to be. The ensuing half of the opinion is given over to exhaustive citations of original and secondary sources that demonstrated to the Court that:
The signification attributed to the term Militia appears from the debates (p.249)in the [Constitutional] Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense ... [a]nd further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.[192]
Perhaps Miller has been so misunderstood by zealous partisans because it steers an almost perfect middle course between today's contending extremes--those who claim that the amendment guarantees nothing to individuals versus those who claim that its guarantee is unlimited. Far from upholding the state's right position, the Court clearly recognized that the defendants could claim the amendment's protection as individuals, and that, in doing so, they need not prove themselves members of some formal military unit like the National Guard.[193] At the same time the Court's focus on the weapon (p.250)suggests rational limitations on the kinds of arms that the amendment guarantees to individuals. Such arms must be both of the kind in "common use" at the present time and provably "part of the ordinary military equipment."[194] Those who have accused the Court of factual inaccuracy have simply misunderstood its legal conclusion as a finding of fact. Miller does not characterize shotguns (or even sawed-off shotguns) as outside the amendment's protection per se. Miller rests on the obvious proposition that it is not judicially noticeable, in the absence of factual proof, that sawed-off shotguns are "in common use" and form "part of the ordinary military equipment."[195] The Miller Court therefore returned the case to the trial court, where the defendants could have attempted the unenviable feat of demonstrating that sawed-off shotguns fell within the limiting criteria that Miller enunciated as defining the weaponry protected by the amendment.[196]
Miller is the Supreme Court's first and last extended treatment of the second amendment. This may seem surprising in light of the amount of legislation which the previous twenty-five years had seen on this controversial subject. But federal law has never gone beyond denying firearms to criminals, the mentally unstable and juveniles. Nor, until recently, has any state or local jurisdiction attempted to deny responsible adults the possession of firearms for lawful purposes. So the cases have involved only various provisions of the federal Gun Control Act of 1968. Challenges to these under the amendment have been summarily rejected by lower federal courts. Typical, and often repeated, are observations to the effect that "there is no showing that prohibiting possession of firearms by felons," the mentally unsound, children, or narcotics addicts "obstructs the maintenance of a 'well regulated militia.'"[197]
In 1981, Morton Grove, Illinois, banned the civilian possession of (p.251)handguns,[198] thus becoming the only American jurisdiction to have attempted the confiscation of a common form of civilian armament since the Civil War.[199] The district court rejected a second amendment challenge to that ordinance without endorsing or accepting either the state's right or the individual right interpretation.[200] It felt bound by Presser and other nineteenth-century holdings that the amendment was inapplicable against the states. Many state courts have also endorsed this proposition in rejecting second amendment challenges.[201]
A few state or federal cases have gone beyond upholding gun laws on these limited grounds, or those suggested in Miller, to embrace the exclusively state's right viewpoint.[202] At least one of these cases, holding that the amendment provides for no individual right, expressly divorces itself from Miller.[203] But a number of other such cases actually cite Miller as their authority.[204] This is startling in light of the inconsistency between their usage of "militia" as a particular military force and Miller's exhaustive exposition of the eighteenth-century definition of "militia" as comprising "all [militarily capable] males ... bearing arms supplied by themselves."[205](p.252)
The discussion thus far has focused almost entirely upon the second amendment as a restraint upon federal governmental activity. The cases just mentioned suggest that state or municipal regulation is not within the scope of the amendment. As a practical matter, however, although the kind of prohibitionary-confiscatory legislation that the amendment forbids,[206] has been proposed at the federal level, it has never come close to enactment there. Nor does this seem likely in the foreseeable future.[207] From time to time, a few states have enacted legislation which could conceivably be subject to second amendment objection,[208] but in recent years legislative activity raising questions central to the second amendment has been limited to the municipal level. The most drastic example is the complete prohibition on home possession of handguns recently enacted by Morton Grove, Illinois.[209] This legislation clearly raises the question of whether the amendment should be considered incorporated against state and local governments through the due process clause of the fourteenth amendment.
The numerous cases citing Presser v. Illinois and Miller v. Texas for the proposition that the amendment is not incorporated[210] cannot survive rigorous analysis. The Presser/Miller view derives from a concept of federalism (i.e., that civil liberties are guaranteed only against the federal government and that their infringement by the states is not the business of the federal judiciary) that has long been (p.253)discredited.[211] Moreover, strictly speaking, the suggestion that Presser v. Illinois and Miller v. Texas reject due process incorporation misreads the actual holdings in those cases. What they literally held was only that the Bill of Rights did not apply against the states ab initio and was not incorporated against them by the privileges and immunities clause of the fourteenth amendment. Presumably the attitude toward federalism which led the nineteenth-century Court to reject privileges and immunities incorporation would equally have led it to reject due process incorporation, if anyone had then imagined it.[212] But to apply the Presser/Miller reasoning to negate due process incorporation of the second amendment today is to extend those cases beyond their holdings. However logical that extension might have seemed in 1886, it is absurd today when the result would be to contradict the entire doctrinal basis of modern incorporation of the Bill of Rights against state and local government.[213]
Absent the misleading spectre of Presser and Miller, the weakness of the argument against application of the second amendment (p.254)to the states is evident. In deciding whether a provision of the Bill of Rights is so fundamental as to justify incorporation, the Supreme Court has traditionally employed two criteria: The extent to which the right is rooted in our Anglo-American common law heritage, as well as its Greek and Roman antecedents;[214] and how highly the Founders themselves valued the right.[215] The great esteem in which the Founders held the right to arms has already been exhaustively detailed. Familiar to them in their own colonial law,[216] derived from the earliest known English legal codes,[217] the right to arms was in their day hailed as not only fundamental to their English legal and political heritage, but implicit in the (to them) premier and seminal natural law right of self-defense.[218] Likewise the right to keep personal arms was so fundamental a part of Graeco-Roman law that every commentator known to the Founders proclaimed it the basis of republican institutions and popular liberty.[219]
Above and beyond the general criteria which normally govern incorporation is the question of specific legislative intent. There is ample evidence that the authors of the fourteenth amendment actually intended to protect the right to arms from state or local interference. The quantum of that evidence considerably exceeds the evidence that they intended to protect any of the rights which have heretofore received incorporation. The fourteenth amendment was enacted at a time when the Republicans were still utterly dominant in Congress by reason of their continuing exclusion of the delegations of the southern states. Section 1 goes virtually unmentioned in the debate on the fourteenth amendment--beyond the statement of Representative Thaddeus Stevens that it was intended to constitutionalize the underlying principles of the immediately preceding 1866 Civil Rights Act,[220] thereby placing them beyond repeal upon (p.255)the southern delegations' return.[221] It is therefore to the 1866 Act that we must turn to understand the purposes of section one of the fourteenth amendment.
The principle underlying the 1866 Civil Rights Act was nothing less than the repudiation of the whole juridical basis of southern slavery. Under the legal theory of slavery, blacks were not human beings, but intelligent livestock, incapable of possessing property or of having a right to defend it or themselves.[222] Pursuant to this theory, Dred Scott and various preceding southern court decisions had declared blacks incapable of citizenship and upheld legislation against their possessing arms.[223] The 1866 Act in effect overruled (p.256)Dred Scott[224] as an adjunct to its general purpose of immutably conferring upon blacks legal standing as free citizens.[225] In so doing it implicitly conferred upon them the right of arms under the second amendment. As we have seen, central to the idea of freedom and citizenship in Anglo-American law and philosophy were the rights to personal security and property, to self defense--and to the possession of arms for those purposes.[226]
Moreover, it appears that proscribing anti-gun laws was expressly contemplated by the authors of the 1866 Act and fourteenth amendment. The betes noir of the Congress of 1866 were the Black Codes that had immediately spewed from the all-white southern legislatures after Appomattox. These Codes sought to reduce the new freedman to peonage, perpetuating against him all the legal disabilities which had previously characterized his status as a slave. As the Special Report of the Anti-Slavery Conference of 1867 noted, among the most obnoxious provisions of these Codes were those by which blacks were "forbidden to own or bear firearms," as they had been under slavery, "and thus were rendered defenseless against assaults" by their former masters or other whites.[227] Congressman after congressman, including the Senate sponsors of both the 1866 Act and the fourteenth amendment, expressed their outrage at the denial of the freedman's right to arms.[228] In summarizing what the 1866 Act would accomplish, its House and Senate sponsors cited Blackstone's classification of the "absolute rights of individuals", stating that these were the essential human rights being conveyed.[229] Finally, myriad statements and an official committee report in relation to the anti-KKK legislation enacted in 1871[230] shows an unchallenged assumption (p.257)by a Congress largely identical in personnel to that of 1866 that the fourteenth amendment they had enacted five years earlier encompassed second amendment rights.[231]
In sum, the only viable justification for denying incorporation of the second amendment against the states today is the exclusively state's right view that the amendment does not confer an individual right. If the amendment only guaranteed a right of the states it would be self contradictory to incorporate it into the fourteenth amendment.[232] But as this state's right interpretation of the amendment is itself not viable historically, it therefore follows that the second amendment should be held applicable to the states through the due process clause of the fourteenth.
Recognizing that the amendment guarantees an individual right applicable against both federal and state governments by no means forecloses all gun control options. Gun control advocates must, however, come to grips with the limitations imposed by the amendment--just as advocates of increasing police powers to deal with crime must come to grips with the limitations imposed by the fourth, fifth and sixth amendments. As with those amendments, determining what limitations the second imposes will require detailed examination of its colonial and common law antecedents.[233] The phrase "the right of the people to keep and bear arms," so opaque to us, was apparently self-defining to the Founders, who used it baldly and (p.258)without any attempt to define it. Presumably they felt that clarification was unnecessary because they were constitutionalizing a pre-existing right to arms whose parameters they knew under their colonial law and practice as it had developed out of the early English common law.[234]
The remainder of this Article is devoted to sketching out some of the amendment's implications in relation to a few of the more commonly encountered "gun control" proposals. The intention is not to resolve definitively the constitutionality of any of these, much less of the entire gamut of possible control options, but only to outline some relevant lines of inquiry.
The preceding sections of this Article demonstrate that, in general, the second amendment guarantees individuals a right to "keep" weapons in the home for self defense.[235] Several limitations on this (p.259)right have already been suggested, however. First and foremost are those implicit in United States v. Miller, suggesting that the amendment protects only such arms as are (1) "of the kind in common use" among law-abiding people and (2) provably "part of the ordinary military equipment" today.[236] The analysis presented throughout this Article indicates that the "ordinary military equipment" criterion is infected by Miller's conceptually flawed concentration on the amendment's militia purpose, to the exclusion of its other objectives. Decisions recognizing that concerns for individual self-protection and for law enforcement also underlie right to arms guarantees involve at once greater historical fidelity and more rigorous limitation upon the kinds of arms protected. These decisions suggest that only such arms as have utility for all three purposes and are lineally descended from the kinds of arms the Founders knew fall within the amendment's guarantee.[237] Reformulating Miller's dual test in this way produces a triple test that anyone claiming the amendment's protection must satisfy as to the particular weapon he owns. That weapon must provably be (1) "of the kind in common use" among law-abiding people today; (2) useful and appropriate not just for military purposes, but also for law enforcement and individual self-defense, and (3) lineally descended from the kinds of weaponry known to the Founders.
This triple test resolves the ad absurdum and ad horribilus results (to which Miller's sketchy and flawed militia-centric discussion greatly contributed) sometimes viewed as flowing from an individual right interpretation of the amendment.[238] Handguns, for example, (p.260)clearly fall within the amendment's protection. That handguns are per se "in common use" among law-abiding people and combine utility for civilian, police and military activities is not only provable but judicially noticeable.[239] On the other hand, such a factual demonstration would be difficult as to at least some of the weapons commonly denominated "Saturday Night Specials."[240] Legislation selectively prohibiting them might, therefore, be consistent with the amendment. Gangster weapons like brass knuckles, blackjacks, sandbags, switchblade knives and sawed-off shotguns unquestionably can be prohibited since they fail to meet both the "common use" and tripartite appropriateness branches of the test. The possession of (p.261)billy clubs is clearly protected, but mace or similar chemical spray weapons would not be unless they can be shown to be lineally descended from some form of weapon known to the Founders. Likewise, the amendment does not protect the possession of fully automatic weapons, grenades, rocket launchers, flame throwers, artillery pieces, tanks, nuclear devices, and so on. Although such sophisticated devices of modern warfare do have military utility, they are not also useful for law enforcement or for self-protection, nor are they commonly possessed by law-abiding individuals. Moreover, many of them may not be lineally descended from the kinds of weapons known to the Founders.
In addition to the tripartite test, two further limiting principles would tend to exclude the sophisticated military technology of mass destruction--or, indeed, anything beyond ordinary small arms--from the amendment's protection. First, since the text refers to arms that the individual can "keep and bear," weapons too heavy or bulky for the ordinary person to carry are apparently not contemplated. Second, according to Blackstone and Hawkins, the common-law right did not extend to "dangerous or unusual weapons" whose mere possession or exhibition "are apt to terrify the people."[241] Naturally, it would terrify the citizenry for unauthorized individuals to possess weapons that could not realistically be used even in self-defense without endangering innocent people in adjacent areas or buildings.
This last limiting principle might also allow legislation against keeping rifles and shotguns loaded for defense, at least in urban areas. Although it appears that most people who keep firearms for self-defense today depend upon handguns, it is unfortunately the case that some urbanites continue to rely on long guns.[242] While a rifle or shotgun is clearly more effective than a handgun if the sole consideration is instantly killing a burglar,[243] the various potential (p.262)side effects of firing such a weapon in an urban environment make it unacceptable.
Consider penetration: even the .44 magnum, the most powerful of all handguns, penetrates no more than thirteen inches in wood, while revolvers in the far more commonly owned .32 to .38 calibers range from two to seven inches in penetration.[244] In contrast, the relatively underpowered military surplus carbine with which President Kennedy was killed penetrates forty-seven inches.[245] So a householder or shopkeeper who uses a rifle against a robber is imposing on others a very considerable risk that the bullet will penetrate all the way through the intended target and successive wood or stucco walls, entering the street or a neighboring building with enough remaining velocity to kill an innocent third party. While a shotgun's discharge does not have equivalent penetration because its velocity is far less, that velocity still substantially exceeds all but the most powerful handguns.[246] Moreover, a householder or shopkeeper who elects to defend his premises with a riot gun's promiscuous spray may end up hitting one or more of his own innocent children or customers, along with the robber. In contrast, a handgun fires one bullet at a time which, if accurately aimed, is unlikely to pass through the robber, or, if it does so, will bury itself harmlessly in the wall.
By the same token, accidental discharges with long guns (particularly rifles, which can penetrate horizontally through successive houses on a city block or vertically through the floors and ceilings of successive apartments in a high rise) are much more dangerous than with handguns. This danger is multiplied by the fact that a rifle or shotgun kept loaded for home or store defense is much more likely to suffer accidental discharge than is a handgun. A rifle or shotgun (p.263)kept ready to fire can discharge simply through impact if dropped on a floor; a modern revolver will not. A long gun is also much more difficult than a handgun to lock or hide away from inquisitive children. Finally, if an inquisitive three-year-old does locate a loaded rifle or shotgun, pushing the safety to "off" and pulling the trigger is literally "child's play"; he would not be strong enough to operate the trigger on a revolver or the slide on an automatic pistol.[247]
These technical factors are reflected in the concrete form of firearms accident statistics. Fifty years ago, long guns outnumbered handguns seven-to-one and were the principal weapons kept loaded in the home--handguns being possessed by less than one in thirteen Americans. In contrast, handguns today represent one-third of the total gunstock and one in every four American households contains them.[248] Even though the handgun stock has grown to the point of displacing long guns in the home defense role, however, Americans continue to buy many more long guns (apparently for sport) each year than they do handguns.[249] Yet this enormous increase in all kinds of firearms has been accompanied by the decline of per capita accidental firearms fatalities to the lowest point since the compilation of such statistics began.[250] It is difficult not to attribute this decline to the general change-over to handguns for home defense. Indicative of the dangers presented by the practice of keeping loaded long guns is the fact that, although handguns undoubtedly represent 90% or more of the weapons kept loaded at any one time today, only 15.5% of accidental firearms deaths appear to involve handguns.[251]
Based on these statistics, an urban community (or a state legislature) might arguably rely on the "dangerous or unusual" weapon exclusion to prohibit the keeping of loaded long guns within densely populated municipal areas. By parity of reasoning, cognate restrictions (p.264)might be placed on the kind of handguns which could be kept for self-defense or at least on kinds of ammunition. Such legislation might prohibit special high-penetration ammunition like the controversial KTW bullet, magnum ammunition for magnum revolvers, or full metal-jacketed ammunition for high-powered automatic pistols. Alternatively or cumulatively, the legislature might affirmatively limit those possessing high-velocity handguns to ammunition specially designed for low penetration, such as hollow point and semi-wadcutter.
The terms gun "licensing" and "registration" are susceptible to multiple interpretations, although most people, including nonlegal scholars and opinion poll formulators, seem lamentably ignorant of this fact.[252] Under the form known as discretionary or "restrictive" licensing, the applicant has no right to have a gun or to be issued a permit by the police even if he meets all statutorily prescribed criteria. His application may be denied simply because enough permits have already been issued to others, or because his reason for desiring a firearm is not deemed important or compelling enough.[253] Such a discretionary or restrictive licensing system, which is the form advocated by proponents of eliminating or radically reducing civilian gun ownership,[254] is clearly inconsistent with the second amendment's guarantee of a personal right to possess arms.
In sharp contrast to restrictive licensing are both "permissive" licensing and registration. Under a permissive licensing system the applicant is entitled to licensure as of right unless he falls into certain proscribed categories--e.g., juveniles, convicted felons and the (p.265)mentally unbalanced.[255] Registration, though often confused with licensing, literally means only that owners must identify themselves and their firearms to the police or some other designated authority.[256] Registration is generally tied to an overall control system, however, which, like permissive licensing, proscribes handgun ownership by classes of persons, such as felons and juveniles, with a high potential for misuse.[257] Neither registration nor permissive licensing are per se violative of the amendment since they operate only to exclude gun ownership by those upon whom the amendment confers no right.[258]
Nevertheless, it has been argued that registration and permissive licensing cannot sustain scrutiny under the amendment, in that they undercut one of its most important purposes: deterring potential despots by the prospect that, in a country with perhaps 160 million civilian firearms, even an initially successful coup would result in internecine civil or guerilla warfare.[259] By destroying the anonymity of gun ownership, licensing or registration laws would make it possible for a despot to follow up his coup by confiscating all firearms.
Whatever the abstract cogency of this argument, the concept of anonymity or privacy in gun ownership profoundly departs from the conditions under which the Founders envisioned the amendment operating. Under the militia laws (first colonial, then state and eventually federal), every household, and/or male reaching the age of majority, was required to maintain at least one firearm in good condition. To prove compliance these firearms had to be submitted for inspection periodically.[260] While the firearms-maintenance provisions of state law and the First Militia Act have long since been repealed, federal law continues to classify the entire able-bodied male citizenry aged seventeen to forty-five as "the militia of the United States."[261] This being the country's ultimate military resource, men (p.266)in this group remain liable for muster in dire military emergencies, e.g., when necessary to keep order in the aftermath of an atomic attack or when both the Army and the National Guard have been deployed overseas.[262] Since one can scarcely argue that the First Militia Act violated the amendment,[263] it is difficult to see that it would be unconstitutional for Congress even today to require every member of the present militia to possess a firearm and regularly present it for inspection to assure that it is being maintained in good working order. Alternatively, and fully consistent with these purposes, a national gun registration scheme could allow federal authorities to mobilize selectively those members of the unorganized militia who are already armed and presumably familiar with the handling of weapons.[264] In sum, the historical background of the second amendment seems inconsistent with any notion of anonymity or privacy insofar as the mere fact of one's possessing a firearm is concerned.
Current federal, and many state, laws prohibit the possession of firearms by anyone who has been convicted of a felony.[265] Since a substantial majority of murderers appear to have prior felony records, it has recently been suggested that strong enforcement of such laws could effectively reduce homicidal violence.[266] The constitutionality of such legislation cannot seriously be questioned on a theory that felons are included within "the people" whose right to arms is guaranteed by the second amendment. Felons simply did not fall within the benefits of the common law right to possess arms. That law punished felons with automatic forfeiture of all goods, usually accompanied by death. We may presume that persons confined in gaols awaiting trial on criminal charges were also debarred from the possession of arms. Nor does it seem that the Founders considered felons within the common law right to arms or intended to confer any such right upon them. All the ratifying convention proposals which most explicitly detailed the recommended right-to-arms amendment excluded criminals and the violent.[267](p.267)
Largely as a result of gun-owner organizations' own legislative proposals, the laws of every state but Vermont prohibit at least the carrying of a concealed handgun off one's own premises.[268] A common proposal, already the law in many jurisdictions, is to prohibit even the open carrying of handguns (or all firearms), with limited exceptions for target shooting and the like, without a permit.[269] A further proposal would impose a mandatory minimum jail sentence for the unauthorized carrying of a handgun (or any firearm) off the owner's premises.[270]
The constitutionality of such legislation under the amendment can be established on the same basis as the unconstitutionality of a ban on possession. Smith's research in seventeenth and eighteenth-century colonial statutes indicates that, while the statutes used "keep" to refer to a person's having a gun in his home, they used "bear" only to refer to the bearing of arms while engaged in militia activities.[271] Thus the amendment's language was apparently intended to protect the possession of firearms for all legitimate purposes, but to guarantee the right to carry them outside the home only in the course of militia service. Outside that context the only carrying of firearms which the amendment appears to protect is such transportation as is implicit in the concept of a right to possess--e.g., transporting them between the purchaser or owner's premises and a shooting range, or a gun store or gunsmith and so on.
The second amendment's language and historical and philosophical background demonstrate that it was designed to guarantee individuals (p.268)the possession of certain kinds of arms for three purposes: (1) crime prevention, or what we would today describe as individual self-defense; (2) national defense; and (3) preservation of individual liberty and popular institutions against domestic despotism. It is often suggested that each of these purposes is obsolete and, therefore, that the amendment itself is obsolete. The national defense is fully provided for by our Armed Forces, supplemented by the National Guard, and a citizenry possessing only small arms could neither deter nor overthrow a domestic military despotism possessing tanks, aircraft and the other paraphernalia of modern war.[272] Likewise the possession of arms for self defense "is becoming anachronistic. As the policing of society becomes more efficient, the need for arms for personal self-defense becomes more irrelevant...."[273]
Yet evidence can be offered to dispute each of these claims of obsolesence. As to the necessity of personal self-defense it is regrettably the case that enormous increases in police budgets and personnel have not prevented, for instance, the per capita incidence of reported robbery, rape and aggravated assault from increasing by 300%, 400% and 300% respectively since 1960.[274] Increasingly police are concluding, and even publicly proclaiming, that they cannot protect the law-abiding citizen, and that it is not only rational for him to choose to protect himself with firearms,[275] but a socially beneficial deterrent to violent crime.[276] This is, of course, a highly controversial (p.269)matter,[277] though the more recent scholarship has tended to vindicate the police point of view.[278] For present purposes it is unnecessary to resolve this controversy. The mere fact of its existence (p.270)demonstrates that the asserted irrelevancy of self-defense today has not been so clearly proved as to justify the abandonment of an expressly guaranteed constitutional right.
The argument that an armed citizenry cannot hope to overthrow a modern military machine flies directly in the face of the history of partisan guerilla and civil wars in the twentieth century. To make this argument (which is invariably supported, if at all, by reference only to the American military experience in non-revolutionary struggles like the two World Wars[279]), one must indulge in the assumption that a handgun-armed citizenry will eschew guerrilla tactics in favor of throwing themselves headlong under the tracks of advancing tanks. Far from proving invincible, in the vast majority of cases in this century in which they have confronted popular insurgencies, modern armies have been unable to suppress the insurgents. This is why the British no longer rule in Israel and Ireland, the French in Indo-China, Algeria and Madagascar, the Portugese in Angola, the whites in Rhodesia, or General Somoza, General Battista, or the Shah in Nicaragua, Cuba and Iran respectively--not to mention the examples of the United States in Vietnam and the Soviet Union in Afghanistan.[280] It is, of course, quite irrelevant for present purposes whether each of the struggles just mentioned is or was justified or whether the people benefitted therefrom. However one may appraise those victories, the fact remains that they were achieved against regimes equipped with all the military technology which, it is asserted, inevitably dooms popular revolt.
Perhaps more important, in a free country like our own, the issue is not really overthrowing a tyranny but deterring its institution in the first place. To persuade his officers and men to support a coup, a potential military despot must convince them that his rule will succeed (p.271)where our current civilian leadership and policies are failing. In a country whose widely divergent citizenry possesses upwards of 160 million firearms, however, the most likely outcome of usurpation (no matter how initially successful) is not benevolent dictatorship, but prolonged, internecine civil war:
A general may have pipe dreams of a sudden and peaceful take-over and a nation moving confidently forward, united under his direction. But the realistic general will remember the actual fruits of civil war--shattered cities like Hue, Beirut, and Belfast, devastated countrysides like the Mekong Delta, Cyprus, and southern Lebanon.[281]
Even if the general's ambition does not recoil from the prospect of victory at such cost, will his officers and men accept it? Additionally, he and they must evaluate the effect of civil war in leaving the country vulnerable to the very foreign enemies their coup is designed to unite it against:
Because it leads any prospective dictator to think through such questions, the individual, anonymous ownership of firearms is still a deterrent today to the despotism it was originally intended to obviate.
Implicit in the Bill of Rights, as in the entire structure of our Constitution, are the twin hallmarks of traditional liberal thought: trust in the people, and distrust in government, particularly the military and the police. We are apt to forget these constant principles in light of our government's generally quite good record of exerting power without abusing it. But the deterrent effect of an armed citizenry is one little-recognized factor that may have contributed to this. In the words of the late Senator Hubert Humphrey, "[t]he right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible."[282]
Moving to the argument that a militia is not necessary to the national defense, for constitutional purposes the issue appears to have been resolved by Congress. For Congress has determined that it remains necessary to classify the entire able-bodied male population aged seventeen to forty-five as the militia of the United States, subject to a potential call to arms in the case of dire military emergency.[283] Moreover, the recent military history of the United States (p.272)shows that such militia units are still being called upon in time of military emergency.[284]
Finally, arguments as to whether the amendment is obsolete are of at most tangential import to its proper interpretation by the courts. After all, the second amendment is not the only provision of the Bill of Rights which is assertedly obsolete (or with the idea of which some Americans may today just happen to disagree). For instance, a judge may be absolutely convinced by scientific argument that the premise of free will which underlies freedom of religion has been invalidated by the modern psychological concept of brainwashing. He may believe a mother's anguished claims that only by such insidious techniques could her son have been induced by a "cult" to drop out of college and abandon the beliefs and lifestyle to which she raised him. Nevertheless, so long as the first amendment stands, no judge is free to disregard as obsolete the rights it confers on that young man and commit him to the custody of a "deprogrammer."[285] The seventh amendment, to take another example, clearly is obsolete, at least insofar as it requires jury trials in civil cases exceeding twenty dollars in controversy. Nevertheless, the courts continue faithfully to apply that amendment's dictate in all cases fairly covered by its literal wording and original spirit.[286] Though courts sometimes give constitutional rights additional scope in order to effectuate what is deemed to be their original intent, courts have no authority to reduce or eliminate the plain terms of a constitutional guarantee because they disagree with that intent or view it as obsolete.[287] The duty of the courts is to enforce the Constitution, not to (p.273)arrogate to themselves the power to delete its provisions.[288] Generally speaking, the power to withdraw a right explicitly guaranteed to the people is reserved exclusively to their state and federal legislatures in a process which is ornately hedged with safeguards, not the least of which is its protracted length.[289] As Mr. Justice Frankfurter noted in reference to criticism of the privilege against self-incrimination as an obstacle to the needs of law enforcement in an era of rampant crime: "If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion."[290]
Unmistakably the Founders intended the second amendment to guarantee an individual right to possess certain kinds of weapons in the home certain kinds of circumstances. The precise details and parameters of that guarantee remain significantly unclear. In part this is because neither federal, state nor local governments have generally moved beyond gun control to the extreme of confiscation. In even larger part the delay in defining its parameters is attributable to the diversion and monopolization of legal analysis by the false dichotomy between the exclusively state's right and the unrestricted individual right interpretations. In fact, the arms of the state's mi