The Courts

Scholarly commentary

 

Early commentary

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone‘s Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.[1]

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government” and “whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.” Blackstone himself also commented on English game laws, Vol. II, p. 412, “that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.”[1] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[2]

Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans “never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”[1]

Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”[3] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[4]

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not…be abused to the disturbance of the public peace” and observed, paraphrasing Coke, that “[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[3]

The orthodox view of the meaning of the Second Amendment was articulated by Joseph Story in his influential Commentaries on the Constitution. In his view the meaning of the Amendment was clear:

The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[5]

In this quote, Story describes a militia as the “natural defence of a free country,” both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a “moral check” against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.[5]

Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.[6] Spooner’s theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.[7] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a “right of resistance” is protected by both the right to trial by jury and the Second Amendment.[8]

The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.[9]

Late 20th century commentary

 

In the latter half of the 20th century there was considerable debate over whether the Second Amendment protected an individual right or a collective right.[10] The debate centered on whether the prefatory clause (“A well regulated militia being necessary to the security of a free State”) declared the amendment’s only purpose or merely announced a purpose to introduce the operative clause (“the right of the People to keep and bear arms shall not be infringed”).

Three basic competing models were offered to interpret the Second Amendment:[11]

The first, known as the “states’ rights” or “collective rights” model, holds that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia.

Judicial reluctance to consider seriously whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement perhaps reflects a tendency to view the Second Amendment, with its apparent guarantee of gun ownership, as embarrassing and politically incorrect. Under the twentieth-century “State’s rights” view, “the people” have no right to keep or bear arms, but the states have a collective right to have the National Guard.[12]

The second, known as the “sophisticated collective rights model”, holds that the Second Amendment recognizes some limited individual right. However, this individual right could only be exercised by actively participating members of a functioning, organized state militia.

Indeed, the fact that the collective right theory was once so confidently advanced by gun control enthusiasts is on its way down the collective memory hole as though it had never been asserted. With its demise, the intellectual debate over the original meaning of the second Amendment has turned in a different direction. Although now conceding that the right to keep and bear arms indeed belongs to individuals rather than to states, almost without missing a beat, gun control enthusiasts now claim with equal assurance that the individual right to bear arms was somehow “conditioned” in its exercise on participation in an organized militia.[13]

The third, known as the “standard model”, is that the Second Amendment recognized the personal right of individuals to keep and bear arms.

However, the weight of serious scholarship supports the historical intent of the Second Amendment to protect individual rights and to deter governmental tyranny. From the Federalist Papers to explanations when the Bill of Rights was introduced, it is clear that the purpose of the Second Amendment was to protect individual rights.[12]

Under both of the collective rights models, the opening phrase was considered essential as a pre-condition for the main clause.[14] These interpretations held that this was a grammar structure that was common during that era[15] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[16]

Under the standard model, the opening phrase is believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example—one of many reasons for the amendment.[15] This interpretation is consistent with the position that the Second Amendment protects a modified individual right.[17]

The question of a collective rights versus an individual right was progressively resolved with the 2001 Fifth Circuit ruling in United States v. Emerson, in the 2008 Supreme Court ruling in District of Columbia v. Heller, and in the 2010 Supreme Court ruling in McDonald v. Chicago. These rulings upheld the individual rights model when interpreting the Second Amendment. In Heller, the Supreme Court upheld the Second Amendment as protecting an individual right.[18] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.[19]

Meaning of “well regulated militia”

 

The term “regulated” means “disciplined” or “trained”.[20] In Heller, the U.S. Supreme Court stated that “[t]he adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”[21]

In the year prior to the drafting of the Second Amendment, in Federalist No. 29 Alexander Hamilton wrote the following about “organizing”, “disciplining”, “arming”, and “training” of the militia as specified in theenumerated powers:

This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.”[26]

A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of theyeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.[26]

“If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security…confiding the regulation of the militia to the direction of the national authority…(and) reserving to the states…the authority of training the militia”.[26]

Justice Scalia, writing for the Court in Heller : “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right”:

Nor is the right involved in this discussion less comprehensive or valuable: “The right of the people to bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.[22]

Justice Stevens in dissent:

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court’s emphatic reliance on the claim “that the Second Amendment … codified a pre-existing right,” ante, at 19 [refers to page 19 of the opinion], is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.[23]

Meaning of “the right of the People”

 

Justice Antonin Scalia, writing for the majority in Heller, stated:

Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”— those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.[24]

Meaning of “keep and bear arms”

 

In Heller the majority rejected the view that the term “to bear arms” implies only the military use of arms:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.”[24]

In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:

The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”.[25]

 

  1. a b c Tucker, p. 490 and Kopel, David B. “The Second Amendment in the Nineteenth Century”. Second Amendment Project.
  2. For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.
  3. a b Rawle, p. 126.
  4. Rawle, pp. 125–6.
  5. a b Story, Joseph (1833). Commentaries on the U.S. Constitution. Harper & Brothers. pp. §1890.
  6. Spooner, pp. 17–8.
  7. Renehan, pp. 172–4.
  8. Spooner, p. 17.
  9. Cramer, p. ?[page needed]
  10. Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5.
  11. “United States v. Emerson” (http). Retrieved August 30, 2010.
  12. a b Halbrook, Stephen P. (1998). Freedmen, the 14th Amendment, and the Right to Bear Arms, 1866-1876. Greenwood Publishing Group. ISBN 9780275963316. Retrieved 19 March 2013.
  13. Barnett, Randy E. (2004). Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?. Retrieved 21 March 2013.
  14. Merkel and Uviller, p. 150. “The linguistically correct reading of this unique construction is as though it said: ‘Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: “an armed, trained, and controlled militia is the best – if not the only – way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without.'”
  15. Winterer, pp. 1–21
  16. “Amicus Brief, ACRU, Case No. 03-CV-0213-EGS, Shelly Parker, et al. vs. District of Columbia, p.14”(PDF). Retrieved August 30, 2010.
  17. Frey and Wellman, p. 194.
  18. Shapiro, p. 148.
  19. Volokh, “Commonplace,” p. 793. “The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured.”
  20. Merkel, p. 361. “Well-regulated meant well trained, rather than subject to rules and regulations.”
  21. a b Heller, Opinion of the Court, Part II-A-2.
  22. “Scalia in Heller”. Retrieved 25 March 2013.
  23. “Stevens’ dissent”. Retrieved 25 March 2013.
  24. a b “District of Columbia v Heller”. Supreme.justia.com. Retrieved August 30, 2010.
  25. “District of Columbia v Heller”. Cornell University Law School. Retrieved August 30, 2010.
  26. a b c d e The Federalist Papers No. 29 (Alexander Hamilton) (concerning the militia).

 

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