U.S. Department of Justice
Statement on the Second
This Page Last Updated 02/08/2005
1 See, e.g., United States v. Emerson, 270 F.3d 203, 220, 260 (5th Cir. 2001).
2 See, e.g., Silveira v. Lockyer, 312 F.3d 1052, 1060-61, 1086-87 (9th Cir. 2002), cert. denied, 124 S. Ct. 803 (2003).
3 Emerson, 270 F.3d at 219 (describing intermediate view); see also, e.g., Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942).
4 See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).
5 Memorandum for United States Attorneys from the Attorney General, Re: United States v. Emerson (Nov. 9, 2001) (quoting Emerson, 270 F.3d at 260), reprinted in Brief for the United States in Opposition, app., Emerson v. United States, 536 U.S. 907 (2002) (denying certiorari). You added that the Department of Justice "can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws."
6 307 U.S. 174 (1939).
7 Ch. 757, 48 Stat. 1236.
8 See National Firearms Act: Hearings on H.R. 9066 Before the House Comm. on Ways and Means, 73d Cong. 90 (1934) (statement of Ass't Atty. Gen. Keenan); United States v. Lopez, 2 F.3d 1342, 1348 (5th Cir. 1993),
aff'd, 514 U.S. 549 (1995).
9 307 U.S. at 175-77.
10 Id. at 178 (citing Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840)). We discuss Aymette below in Part IV.B.2.
12 Id. at 179; see id. at 179-82 (describing militia regulations, including arms requirements).
13 See below, Parts II.C (discussing Second Amendment's preface), III.B-C (discussing Founders' recognition that the individual right to arms furthered the citizen militia), IV.A (discussing early commentators), IV.B.2 (discussing early cases), IV.D (discussing views of Thomas Cooley soon after Civil War).
14 Later opinions of the Supreme Court appear to accept the individual-right view, at least in dicta, although none is
dispositive. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court rejected a claim that the Fifth Amendment's criminal-procedure protections applied to nonresident enemy aliens by pointing out, among other things, that a contrary view would require also applying the "companion civil-rights Amendments" in the Bill of Rights, including the Second Amendment. Id. at 784
("[D]uring military occupation irreconcilable enemy elements, guerrilla fighters, and 'werewolves' could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against 'unreasonable' searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments."). In Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961), the Court, citing Miller, again equated the Second Amendment right with the rights secured by the First Amendment. Id. at 49 n.10. More recent cases have assumed an individual right in dicta by listing the Second Amendment right among the personal rights composing the "liberty" that the Constitution's due-process provisions protect. See Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992); Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (plurality opinion) (quoting Poe v.
Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting)); id. at 542 (White, J., dissenting) (same as plurality). But see Adams v. Williams, 407 U.S. 143, 150 (1972) (Douglas, J., dissenting) ("A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment," but
"[t]here is no reason why all pistols should not be barred to everyone except the police."). The Court in Lewis v. United States, 445 U.S. 65 (1980), rejected an equal-protection challenge to a prohibition against felons possessing firearms. In a one-sentence footnote explaining why it was applying rational-basis review, the Court stated that such a prohibition is not "based upon constitutionally suspect criteria" and does not "trench upon any constitutionally protected liberties." Id. at 65 n.8. Although this language is consistent with the view that the Second Amendment does not secure a right of individuals, it is also consistent with the traditional understanding of the individual-right view that the liberty protected by the Second Amendment does not extend to convicted felons. See infra notes 19 & 29, and the discussions referenced therein.
15 131 F.2d 916, 922 (1st Cir. 1942).
16 Id. at 923.
17 131 F.2d 261, 266 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463 (1943).
18 Id. The same ground appears to have been available in Cases. See Cases, 131 F.2d at 919 n.1.
19 Regarding violent felons, although the case involved possession, the court relied on authority for regulating the bearing of arms (banning carrying weapons concealed or to the terror of the people). For more on-point authority, see proposals made during the ratifying conventions, discussed below in Part III.C.1, and Emerson, 270 F.3d at 226 n.21; cf. Lewis, 445 U.S. at 65 n.8 (rejecting equal-protection challenge to prohibition of felon possessing a firearm); Richardson v. Ramirez, 418 U.S. 24, 53-55 (1974) (holding constitutional the disenfranchisement of convicted felons who had completed their sentences and paroles).
20 131 F.2d at 266. The court cited some history from the Founding Era, which we address in Part III.C.1.
21 We have not conducted a review of the Government's litigating positions in the numerous firearms cases since Miller. In its brief in Miller, the Government made two alternative arguments. The first was consistent with a quasi-collective-right view. See Brief for United States at 9-18, United States v. Miller, 307 U.S. 174 (1939) (No. 696). The second (which the Court adopted) was consistent with either a quasi-collective- or individual-right view. See id. at 18-20. Its present litigating position appears to be consistent with your 2001 memorandum to U.S. Attorneys endorsing the individual-right view. See, e.g., United States v.
Lippman, 369 F.3d 1039, 1045 (8th Cir. 2004) (Colloton, J., concurring in part and concurring in the judgment).
22 Property Requisition Act, ch. 445, § 1, 55 Stat. 742, 742.
23 Memorandum for Lawrence E. Walsh, Deputy Attorney General, from Paul A. Sweeney, Acting Assistant Attorney General, Office of Legal Counsel, Re: H.R. 232, 86th Cong., 1st
Sess., a bill "To provide for the securing of custody and disposition by the United States of missiles, rockets, earth satellites, and similar devices adaptable to military uses, and for other purposes," at 1-2 (Apr. 9, 1959) (emphasis added).
24 See Memorandum for Byron R. White, Deputy Attorney General, from Nicholas deB.
Katzenbach, Assistant Attorney General, Office of Legal Counsel, Re: H.R. 2057, a bill to provide for the securing of custody and disposition by the United States of missiles, rockets, earth satellites, and similar devices adaptable to military use (May 8, 1961); Memorandum for White, from
Katzenbach, Re: Proposed report of the Department of Defense on H.R. 2057 "To provide for the securing of custody and disposition by the United States of missiles, rockets, earth satellites and similar devices adaptable to Military uses, and for other purposes," at 1 (Mar. 22, 1962).
25 See Federal Firearms Act: Hearings Before the Subcomm. to Investigative Juvenile Delinquency of the Senate Comm. on the Judiciary, 89th Cong. 40-41 (1965) (statement of Attorney General
Katzenbach). For subsequent treatment of the Second Amendment, see, e.g., Memorandum for Richard G.
Kleindienst, Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Proposed "Federal Gun Registration and Licensing Act of 1969" (Feb. 19, 1969) (in one-sentence discussion, citing Miller and Tot to find no "serious legal obstacle" under Amendment to proposal for federal registration of firearms and limited federal licensing); Memorandum for D. Lowell Jensen, Assistant Attorney General, Criminal Division, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: Proposed Legislation Relating to Firearms and to Mandatory Sentencing, at 2 (May 27, 1981) (citing Miller as basis for
"perceiv[ing] no basis for suggesting that the [1968 Gun Control] Act so interferes with the powers of the States to raise militias as to transgress the Second Amendment"); Firearm Owners' Protection Act, Pub. L. No. 99-308, § 1(b), 100 Stat. 449, 449 (1986), 18
U.S.C. § 921 note (2000) (law signed by President Reagan that recognized "the right[ ] of citizens . . . to keep and bear arms under the second amendment.").
26 Pub. L. No. 90-351, 82 Stat. 197.
27 See, e.g., Love v. Pepersack, 47 F.3d 120, 122-24 (4th Cir. 1995); United States v.
Warin, 530 F.2d 103, 105-07, 108 (6th Cir. 1976) (dismissing "the erroneous supposition that the Second Amendment is concerned with the rights of individuals rather than those of the States" and rejecting claim involving gun admittedly bearing reasonable relationship to preservation or efficiency of the army); Gillespie v. City of Indianapolis, 185 F.3d 693, 710-11 (7th Cir. 1999); Hickman v. Block, 81 F.3d 98, 99-102 (9th Cir. 1996). The Third Circuit's present position is at least the quasi-collective-right view, if not the collective-right view. See United States v.
Rybar, 103 F.3d 273, 286 (3d Cir. 1996).
28 See, e.g., United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); United States v. Wright, 117 F.3d 1265, 1272-74 (11th Cir. 1997), vacated in part on other grounds, 133 F.3d 1412 (1998). These courts make clear that the right under the quasi-collective-right view protects only members of organized militia units such as the National Guard, not members of the "militia" defined more broadly. Oakes, for example, rejected a claim based on the defendant's membership in the Kansas militia, which consisted of all able-bodied men between twenty-one and forty-five. 564 F.2d at 387; see also Wright, 117 F.3d at 1271-74 (similar); Hale, 978 F.2d at 1020 (similar);
Warin, 530 F.2d at 105, 106, 108 (similar).
29 See, e.g., United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000); Gillespie, 185 F.3d at 710-11; Marchese v. California, 545 F.2d 645, 646 (9th Cir. 1976); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (per
curiam); Cody v. United States, 460 F.2d 34, 35-37 (8th Cir. 1972); Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971); United States v.
Synnes, 438 F.2d 764, 766 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009 (1972). Courts have recognized that such holdings could be consistent with an individual-right view. See United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003); supra note 19 (discussing Tot); cf. Emerson, 270 F.3d at 261 (upholding prohibition on possession of firearm by person subject to domestic-violence restraining order by concluding that Amendment protected an individual right but finding no violation);
Lippman, 369 F.3d at 1044-45 (Colloton, J.) (similar).
30 See Hickman, 81 F.3d at 99-103; Thomas v. Members of City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984) (per
curiam). Courts have recognized that such holdings also could be consistent with an individual-right view. See Parker, 362 F.3d at 1285-86 (Kelly, J., concurring) (arguing for upholding conviction on narrower ground that case involved reasonable restriction on concealed weapons, and criticizing circuit courts, in interpreting Second Amendment, for ignoring "the universal admonition to decide constitutional issues narrowly"); Part IV.B.2, below (discussing cases recognizing individual right but rejecting right to carry concealed weapons).
31 Silveira, 312 F.3d at 1063-64 & n.11.
32 For a symposium of articles spanning the views, see The Second Amendment Today: Historical and Contemporary Perspectives on the Constitutionality of Firearms Regulation, 29 N. Ky. L. Rev. 643 (2002), and for articles critical of the individual-right view, see Symposium on the Second Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000). See also, e.g., Garry Wills, A Necessary Evil: A History of American Distrust of Government 207-21, 256-60 (1999); Andrew D.
Herz, Gun Crazy: Constitutional False Consciousness and Dereliction of Dialogic Responsibility, 75
B.U. L. Rev. 57 (1995); Richard M. Aborn, Essay, The Battle Over the Brady Bill and the Future of Gun Control Advocacy, 22 Fordham
Urb. L.J. 417 (1995); Carl T. Bogus, Essay, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Dennis A.
Henigan, Arms, Anarchy and the Second Amendment, 26 Val. U. L. Rev. 107 (1991); Wendy Brown, Comment, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale
L.J. 661 (1989); Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. Dayton L. Rev. 5 (1989); Samuel Fields, Guns, Crime and the Negligent Gun Owner, 10 N. Ky. L. Rev. 141 (1982); Warren
Spannaus, State Firearms Regulation and the Second Amendment, 6 Hamline L. Rev. 383 (1983); cf. David
Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000); David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale
L.J. 551, 554-55 (1991).
33 See, e.g., Laurence H. Tribe, 1 American Constitutional Law 900 & 902 n.221 (3d ed. 2000); Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. &
Pol. 157 (1999); Leonard W. Levy, Origins of the Bill of Rights 134 (1999); Ronald S.
Resnick, Private Arms as the Palladium of Liberty: The Meaning of the Second Amendment, 77 U.
Det. Mercy L. Rev. 1 (1999); Brannon P. Denning, Gun Shy: The Second Amendment as an
"Underenforced Constitutional Norm," 21 Harv. J.L. & Pub. Pol'y 719 (1998); L.A.
Powe, Jr., Guns, Words, and Constitutional Interpretation, 38 Wm. & Mary L. Rev. 1311 (1997); Nelson Lund, The Past and Future of the Individual's Right to Arms, 31 Ga. L. Rev. 1 (1996); Randy E. Barnett & Don B.
Kates, Under Fire: The New Consensus on the Second Amendment, 45 Emory L.J. 1139 (1996); Glenn Harlan Reynolds & Don B.
Kates, The Second Amendment and States' Rights: A Thought Experiment, 36 Wm. & Mary L. Rev. 1737 (1995); David B. Kopel, It Isn't About Duck Hunting: The British Origin of the Right to Arms, 93 Mich. L. Rev. 1333, 1355 (1995); William Van
Alstyne, Essay, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236; Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (1994); Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (1994); Akhil Reed
Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1162-68 (1991); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an
Afro-Americanist Reconsideration, 80 Geo. L.J. 309 (1991); Sanford Levinson, Comment, The Embarrassing Second Amendment, 99 Yale
L.J. 637 (1989); Nelson Lund, The Second Amendment, Political Liberty, and the Right to Self-Preservation, 39 Ala. L. Rev. 103 (1987); David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9
Harv. J.L. & Pub. Pol'y 559 (1986); Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law &
Contemp. Probs. 143 (Winter 1986); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Don B.
Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); see also Printz v. United States, 521 U.S. 898, 938 n.2 (1997) (Thomas., J., concurring) (noting "growing body of scholarly commentary
indicat[ing] that the [right]" is a personal one); Emerson, 270 F.3d at 220 (similar).
34 270 F.3d at 227-60.
35 312 F.3d at 1060-87.
36 Silveira v. Lockyer, 328 F.3d 567, 570 (9th Cir.) (Kleinfeld, J., joined by
Kozinski, O'Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehearing en banc), cert. denied, 124 S. Ct. 803 (2003); see 328 F.3d at 568
(Pregerson, J., same); id. at 568 (Kozinski, J., same); id. at 592 (Gould, J., joined by
Kozinski, J., same). For other recent opinions of Ninth Circuit judges endorsing the individual-right view and criticizing
Silveira, see Nordyke, 319 F.3d at 1195 (Gould, J., concurring); Nordyke v. King, 364 F.3d 1025, 1025 (9th Cir. 2004)
(Kleinfeld, J., dissenting from denial of rehearing en banc); id. at 1026 (Gould, J., joined by
O'Scannlain, Kleinfeld, Tallman, and Bea, JJ., same).
37 For example, Article II of the Articles of Confederation, drafted a decade before the Constitution, reserved to each State "every power, jurisdiction, and right" not expressly delegated to the federal Government.
38 In addition, the Copyright and Patent Clause authorizes Congress to grant an "exclusive Right" to authors and inventors for a limited time. U.S. Const. art. I, § 8,
39 See., e.g., U.S. Const. art. I, § 1; art. I, § 8; art. II, § 1; art. III, § 1; amend. X.
40 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990); see also id. at 279 (Stevens, J., concurring in judgment) ("aliens who are lawfully present in the United States are among those 'people' who are entitled to the protection of the Bill of Rights, including the Fourth Amendment"); id. at 287-88 (Brennan, J., dissenting) (similar; contending that "'the people'" is broader than "'citizens,' 'freemen,' 'residents,' or 'the American people.'"). The Ninth Circuit in Silveira did not discuss the "right of the people" in the Second Amendment, and it disregarded Verdugo-Urquidez except to cite its analysis of "the people" as an analogy in support of its own reading of "Militia." See 312 F.3d at 1069-70 & n.25, 1071 & n.27. While recognizing that
"[t]he question . . . is not whether arms may be kept, but by whom and for what purpose," id. at 1074, the court in Silveira did not consider that the "who[ ]" might be "the people" to whom the Second Amendment's text - like that of the First, Fourth, and Ninth - expressly gives the right.
41 Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 267-68 (1880; reprint 2000) (emphasis added).
42 Of course the "people" might choose to exercise those individual rights in groups rather than alone, as in the First Amendment right to assemble and petition, but that does not make their rights "collective" or quasi-collective in the sense of depending on the will or actions of a State or on one's service to it.
43 U.S. Const. art. I, § 8, cls. 15-16; art. II, § 2, cl. 1.
44 The last quotation is from the Constitutional Convention's resolution transmitting the proposed Constitution to the Congress. 2 The Records of the Federal Convention of 1787, at 665 (Max Farrand ed., rev. ed. 1966). This distinction between the "people" and the government is why the Founders insisted that the Constitution be ratified by popularly elected special conventions rather than by the state governments, to ensure its supremacy over those governments. See The Federalist No. 39, at 253-54 (J. Madison) (Jacob E. Cooke, ed. 1961); James Madison, Notes of Debates in the Federal Convention of 1787, at 70 (1987) (remarks of Madison, June 5); id. at 348-49 (remarks of George Mason and Edmund Randolph, July 23); id. at 352-53 (remarks of Madison).
45 Those who reject the individual-right view tend to neglect "keep" or to treat it as redundant with "bear." In
Silveira, the court found it "not clear" why the word "was included in the amendment" and concluded by summarizing the Amendment as merely protecting a right to "'bear arms'" in conjunction with militia service. 312 F.3d at 1074, 1086. See also Michael C.
Dorf, What Does the Second Amendment Mean Today?, 76 Chi.-Kent L. Rev. 291, 317 (2000) (contending without citation that "keep and bear" is "a unitary phrase," with "keep" adding nothing to "bear," but admitting possibility that "the plain meaning of 'keep' would have been sufficient to connote an individual right"); H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 Chi.-Kent L. Rev. 403, 424-25, 508, 549-50, 593 (2000) (similar).
46 2 Strange Rep. 1098, 1098 (applying 5 Ann., c. 14 (1706)); see Rex v. Gardner, 87 Eng. Rep. 1240, 7 Mod. Rep. 279
(K.B. 1739) (apparently later case, but similar); id. at 1241 (defendant, arguing that "to charge only that he kept a gun is improper, for it includes every man that keeps a gun," and that guns are kept "for the defence of a man's house"); id. (Lee,
C.J.) (words of statute "do not extend to prohibit a man from keeping a gun for his necessary
defence"); id. (Probyn, J.) ("farmers are generally obliged to keep a gun, and are no more within the Act for doing so than they are for keeping a cabbage-net").
47 Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).
48 Wingfield v. Stratford, 96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).
49 King v. Silcot, 87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted) (interpreting 33 Hen. VIII, c. 6 (1541), and quashing indictment because it did not specifically allege that defendant's income was insufficient when he kept the gun).
50 4 Blackstone at *182. The qualification to which Blackstone refers is a wealth requirement tied to the game laws, see id. at *174-75, which we discuss in Part
III.A, below, and elsewhere. Regarding Blackstone's influence and authority, see, e.g., Madison, Notes of Debates at 547 (remarks of
Dickenson, Aug. 29); Federalist No. 69, at 465 n.* (A. Hamilton) & No. 84, at 577 (Hamilton); Malcolm, To Keep and Bear at 130; Schick v. United States, 195 U.S. 65, 69 (1904). Edmund Burke informed Parliament that "they have sold nearly as many of Blackstone's Commentaries in America as in England." Speech concerning Resolutions for Conciliation with the Colonies (Mar. 22, 1775), in Edmund Burke, Pre-Revolutionary Writings 206, 225 (Ian Harris ed., 1993).
51 4 Blackstone at *56; see id. (person barred from "keeping arms in his house"). See 1 W. & M.,
Sess. 1, c. 15, § 4 (1689) ("no papist . . . shall or may have or keep in his house, or elsewhere, or in the possession of any other person to his use, or at his disposition, any arms, weapons, gunpowder, or ammunition").
52 Kates, 82 Mich. L. Rev. at 215, 219.
53 We discuss this proposal below in Part III.C.1.
54 Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825).
55 Samuel Johnson, A Dictionary of the English Language (1755) (unpaginated). See Noah Webster, An American Dictionary of the English Language (1828)
(unpaginated) (defining "Keep" first as "To hold; to retain in one's power or possession").
56 See Stephen P. Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees 94 (1989) (contending that "common linguistic usage of the day . . .
referr[ed] to the depositing of public arms in an arsenal, in contrast with the keeping of private arms by the people," and providing an example of the former usage in a 1789 state statute); cf. U.S. Const. art. I, § 10,
cl. 3 ("No State shall . . . keep Troops" without Congress's consent) (emphasis added). When members of a militia, as opposed to the people in general, retained their own arms for militia service, common usage seems to have been to speak of them "providing" themselves with weapons, see Militia Act,
ch. 33, § 1, 1 Stat. 271 (1792); Thomas Jefferson, Notes on the State of Virginia 88 (William Peden ed., 1982); 1 The Papers of George Mason, 1725-1792, at 212 (Robert A. Rutland ed., 1970), although we do not mean to claim that one could not speak of militiamen "keeping" arms for militia use.
57 Johnson, Dictionary (unpaginated).
58 See id. (defining "bear" as to "carry as a burden," "convey or carry," "carry as a mark of authority" (such as a sword), "carry as a mark of distinction" (such as to "bear arms in a coat"), and "carry as in show"); Webster, American Dictionary
(unpaginated) (defining "bear" as to "support," "sustain," "carry," "convey," "support and remove from place to place," "wear," and "bear as a mark of authority or distinction; as, to bear a sword, a badge, a name; to bear arms in a coat").
59 In Muscarello v. United States, 524 U.S. 125 (1998), which involved a statute, the Court was unanimous in understanding "bear arms" to refer generally to a person carrying arms upon his person for the purpose of being armed and ready for offensive or defensive action, the dissent citing the Second Amendment in support of this view. The majority gave "carries a firearm" a broader meaning. Id. at 130; id. at 139-40, 143
(Ginsburg, J., dissenting).
60 See, e.g., Kates, 82 Mich. L. Rev. at 219 (explaining that, in early colonial statutes, "'bear' did generally refer to the carrying of arms by militiamen"); St. George Tucker, 2 Blackstone's Commentaries *408-09 n.1 (1803; reprint 1996) ("Tucker's Blackstone") (discussing Virginia law exempting from militia duty those "religiously scrupulous of bearing arms"); The Declaration of Independence para. 28 (1776) ("He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their country."). Militia service was not, however, limited to "military" action. The Constitution speaks of using the militia "to execute the Laws of the Union," which is distinct from both
"repel[ling] Invasions" and "suppress[ing] Insurrections." U.S. Const. art. I, § 8,
61 Quoted in Malcolm, To Keep and Bear at 139.
62 2 The Papers of Thomas Jefferson 443-44 (Julian P. Boyd ed., 1950). Concerning the Committee of
Revisors, see id. at 305; 1 Tucker's Blackstone, Note F, at 444-45.
63 These are collected, through the Michigan Constitution of 1835, in Emerson, 270 F.3d at 230 n.29. We discuss the Pennsylvania and Vermont constitutions below in Part III.B.2. For an 1822 judicial interpretation confirming the plain meaning of the Kentucky provision as granting an individual right, see below, Part IV.B.1. Regarding ratification of the Bill of Rights, see below, Part III.C.2.
64 "Legality of the London Military Foot-Association" (July 24, 1780), reprinted in William
Blizard, Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59, 59 (London 1785) (emphasis omitted). Regarding this opinion, which was "of wide interest," Leon
Radzinowicz, 4 A History of English Criminal Law 107 (1968), see id. at 107-10; Malcolm, To Keep and Bear at 133-34; and our further discussion below in Part
III.A. Regarding the Recorder, see 1 Blackstone at *76; 3 id. at *80-81 n.i; id. at *334; John H.
Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1, 8, 17-19, 34-36 (1983).
65 This essay by Tench Coxe is discussed below in Part III.C.2.
66 Joseph Story, Commentaries on the Constitution of the United States § 980, at 695 (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833) ("Abridgement"). The English right is discussed below in Part
67 See Bernard Schwartz, 2 The Bill of Rights: A Documentary History 665, 672 (1971). We discuss the Pennsylvania Convention, including the Report and its critics, in Part III.C.1, below. Regarding the Report's wide circulation, see id. at 628; 2 The Documentary History of the Ratification of the Constitution 617 (Merrill Jensen ed., 1976) ("Doc.
Hist.") (note); 15 Doc. Hist. at 7-10 (John P. Kaminski & Gaspare J. Saladino eds., 1984) (note).
68 In addition, the Second Amendment's reference to "Arms" in the context of "keep" and "bear" reinforces our view that it protects an individual right. The mere word "Arms" could denote any weapon, including artillery. See Webster, American Dictionary
(unpaginated) (defining "arms" as "Weapons of offense, or armor for defense and protection of the body" and including explanation of "Fire arms" as "such as may be charged with powder, as cannon, muskets, mortars &c."; also defining the verb "arm" as including
"[t]o furnish with means of defense; to prepare for resistance; to fortify"); Johnson, Dictionary
(unpaginated) (defining "arms" as "Weapons of offence, or armour of defence"). Certainly Congress's power in Article I, Section 8, Clause 16 to provide for "arming" the militia includes such weapons, particularly given that the Constitution contemplates that the States will use militias to defend themselves against surprise invasions. See U.S. Const. art. I, § 10,
cl. 3 ("No State shall, without the Consent of Congress, . . . keep Troops, . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."); Militia Act § 4, 1 Stat. 271, 272 (1792) (requiring each division of State's militia to have a company of artillery and troop of horse). If the Second Amendment protected a state prerogative to have organized and effective militias, one would expect it to protect all of the arms essential for that purpose, including artillery. Yet its text suggests that the "Arms" that it protects do not include those that "the people" could not both "keep" and "bear" - those that an individual could not store and carry. This use of "Arms" points toward an individual-right view rather than a right of States to have select "militias," and it also seems more consistent with an individual-right than a quasi-collective-right view, as the latter requires that the "militia" of which the claimant is a member be fully organized and equipped. See, e.g., United States v. Parker, 362 F.3d 1279, 1283 (10th Cir. 2004).
69 This rule assumes that the legislature incorporated the declaration during the ordinary legislative process, not adopting it separately (with little consideration) or leaving it to others to insert. Norman J. Singer, 2A Sutherland on Statutory Construction § 47.04, at 220 & 223 (6th ed. 2000); see James Kent, 1 Commentaries on American Law 516 (9th ed. 1858) (noting that titles and preambles "generally . . . are loosely and carelessly inserted, and are not safe expositors of the law"); see also King v. Williams, 96 Eng. Rep. 51, 52, 1
Blackst. Rep. 93 (K.B. 1758) ("The conciseness of the title shall not control the body of the Act. The title is no part of the law; it does not pass with the same solemnity as the law itself. One reading is often sufficient for it."); Thomas Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of the United States 41 (1801; reprint 1993) (noting desirability that preamble "be consistent with" a bill but possibility that it may not be, because of legislative procedures).
70 Examples of both include the statutes discussed or cited below in Part III.A. See, e.g., the Militia Act of 1662, 13 & 14 Car. II, c. 3, §§ 1, 3, 14, 20; the Game Act of 1671, 32 & 33 Car. II, c. 25, §§ 1, 2, 4, 5, 6, 7; the Act to Disarm Papists, 1 W. & M.,
Sess. 1, c. 15, §§ 1, 4 (1689); the Bill of Rights, 1 W. & M., Sess. 2, c. 2, §§ 1, 9 (1689); the Game Act of 1692, 4 & 5 W. & M., c. 23, §§ 1, 3, 4, 5, 7, 10; the act repealing the ban on hail-shot, 6 & 7 Will. III, c. 13, §§ 1, 3 (1695); and the Game Act of 1706, 5 Ann., c. 14, §§ 1, 3, 5.
71 Copeman v. Gallant, 24 Eng. Rep. 404, 407, 1 P. Wms. Rep. 314 (Ch. 1716); id. at 405 (quoting statute) (emphases added); see Singer, 2A Sutherland § 47.04, at 220
("Copeman . . . established the rule that the preamble could not be used to restrict the effect of the words used in the purview."). In Ryall v.
Rolle, 26 Eng. Rep. 107, 1 Atkyns Rep. 165 (Ch. 1749), although the question was not at issue, see id. at 116 (Lee,
C.J.); id. at 118 (Hardwicke, Ch.), some judges voiced disagreement with Copeman's interpretation of that statute because of the great "inconvenience" it would cause to commercial arrangements such as trusts, agency, and bailment, but they still recognized the general rule, see id. at 113 (Parker,
C.B.) (recognizing another case holding "[t]hat the preamble shall not restrain the enacting clause" and recognizing that Copeman "exploded the notion of the preamble's governing the enacting clause," but adding that "if the not restraining the generality of the enacting clause will be attended with an inconvenience, the preamble shall restrain it"); id. at 118
(Hardwicke, Ch.) (agreeing with Parker).
72 King v. Athos, 8 Mod. Rep. 136, 144 (K.B. 1723). See id. (Fortescue, J.)
("[I]t must be admitted, that a preamble may be a good expositor of a statute; but what was offered on the other side is not properly a preamble, but only introductive to an enacting part of a statute: besides . . . preambles are no more than recitals of inconveniences, which do not exclude any other to which a remedy is given by the enacting part."); Kinaston v. Clark, 26 Eng. Rep. 526, 527, 2 Atkyns Rep. 204 (Ch. 1741) ("There are many cases where the enacting part in a statute extends further than the preamble even in criminal matters . . . .").
73 1 Blackstone at *59-60. See Crespigny v. Wittenoom, 100 Eng. Rep. 1304, 1305, 4 Term Rep. 791
(K.B. 1792) (Buller, J.) ("I agree that the preamble cannot controul the enacting part of a statute, which is expressed in clear and unambiguous terms. But if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it."); id. at 1306
(Grose, J.) ("Though the preamble cannot controul the enacting clause, we may compare it with the rest of the Act, in order to collect the intention of the Legislature.").
74 Kent, 1 Commentaries at 516. See Mills v. Wilkins, 87 Eng. Rep. 822, 822-23, 6 Mod. Rep. 62 (Q.B. 1703)
("[T]he title is not the law, but the name or description given to it by the makers: just as the preamble of a statute is no part thereof, but contains generally the motives or inducements thereof."); see also Singer, 2A Sutherland § 47.04, at 221-22; id. at 224-25 ("The preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be used to create doubt or uncertainty.").
75 Joseph Story, 1 Commentaries on the Constitution of the United States §§ 459-460, at 443-44 (1833; reprint 1991).
76 Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).
77 See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 821 n.31, 838 (1995); id. at 846 & n.1 (Thomas, J., dissenting); see also Stenberg v.
Carhart, 530 U.S. 914, 953 (2000) (Scalia, J., dissenting).
78 N.H. Const. art. I, § 17 (1784), reprinted in Francis Newton Thorpe, 4 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 2455 (1909; reprint 1993).
79 See Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793, 798, 804-05, 808-09 (1998); Emerson, 270 F.3d at 234 n.32.
80 Mass. Const. pt. I, § 21 (1780), reprinted in 3 Fed. and State Consts. at 1892;
N.H. Const. art. I, § 30 (1784), reprinted in 4 Fed. and State Consts. at 2457; Vt. Const.
ch. I, § 16 (1786), reprinted in 6 Fed. and State Consts. at 3753.
81 See Volokh, 73 N.Y.U. L. Rev. at 794-95, 799-800. As with statutes, constitutional prefaces and operative language often do not match exactly, the latter sometimes being overinclusive compared to the declaration and sometimes
underinclusive. See id. at 801-07 (providing examples).
82 Creating the Bill of Rights: The Documentary Record from the First Federal Congress 12 (Helen E. Veit et. al. eds., 1991) (emphasis added).
83 Madison, Notes of Debates at 639 (Sept. 14). Mason's proposal was defeated, apparently on the ground that it improperly impugned soldiers. Id. at 639-40.
84 Athos, 8 Mod. Rep. at 144.
85 The Ninth Circuit in Silveira provided only one paragraph on the proper relationship between a preface and operative language, concluding that the latter must be read "to implement the policy" of the former. See 312 F.3d at 1075.
86 United States v. Miller, 307 U.S. 174, 178 (1939).
87 See, e.g., Silveira, 312 F.3d at 1069-72.
88 Nordyke v. King, 364 F.3d 1025, 1031 (9th Cir. 2004) (Gould, J., joined by
O'Scannlain, Kleinfeld, Tallman, and Bea, J.J., dissenting from denial of rehearing en banc).
89 Athos, 8 Mod. Rep. at 144.
90 See Kopel, 93 Mich. L. Rev. at 1355 ("[O]ne of the reasons Congress guaranteed the right of the people to keep and bear arms was so that a popular militia could be drawn from the body of the people.") (footnote omitted). Thus, the Silveira court's description of the militia as "the state-created and -organized military force," 312 F.3d at 1069, is technically true but critically incomplete, because it ignores the composition of the militia.
91 On the former distinction, see U.S. Const. art. I, § 8, cls. 12-16; art. I, § 10,
cl. 3; art. II, § 2, cl. 1; amend. V; Articles of Confed. art. VI (contrasting a "body of forces" with "a well regulated and disciplined militia, sufficiently armed and accoutered."); Authority of President to Send Militia Into a Foreign Country, 29 Op. Att'y Gen. 322, 322 (1912)
(Wickersham, A.G.) ("[T]he militia has always been considered and treated as a military body quite distinct and different from the Regular or standing army.").
92 See Malcolm, To Keep and Bear at 125 (discussing concerns of English Whigs after the English Revolution of 1688-1689 to maintain a citizens' militia as opposed to a select one); id. at 95-97, 103, 105 (discussing purges and selective disarmament of militia by Charles II and James II); id. at 63 (discussing Charles II's select militia).
93 Madison, Notes of Debates at 478, 483-84 (Aug. 18).
94 Id. at 515 (Aug. 23). John Adams also praised a militia of the whole people, as opposed to a select band, in works that he published in 1776 and 1787. See below, Part III.B.1.
95 Federalist No. 46, at 321 (J. Madison). The population of all white males aged 16 and over in the 1790 census was 813,298, making Madison's number a fair approximation of the citizen militia. See U.S. Dept. of Commerce, Bureau of the Census, 1 Historical Statistics of the United States 16 (1975).
96 Federalist No. 29, at 183-85 (A. Hamilton).
97 1 The Debate on the Constitution 712 (Bernard Bailyn ed., 1993).
98 2 id. at 507. For Ramsey's biography, see id. at 1009.
99 "Aristides," Remarks on the Proposed Plan of a Federal Government (1788), reprinted in 15 Doc.
Hist. at 522, 533; see id. at 518-20 (note regarding circulation and responses).
100 10 Doc. Hist. at 1312 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (June 16, 1788).
101 Federal Farmer No. 18 (1788), reprinted in 2 The Complete Anti-Federalist 341-42 (Herbert J. Storing ed., 1981); see also No. 3 (1787), id. at 242. Publius (Hamilton) recognized the Federal Farmer letters as among the best of the Anti-Federalists'. See Federalist No. 68, at 457-58.
102 Act of May 8, 1792, ch. 33, §§ 1-2, 1 Stat. at 271-72; see 2 Tucker's Blackstone at *409 n.1.
103 10 U.S.C. § 311(a) (2000) (including in the militia "all able-bodied males at least 17 years of age and . . . under 45 years of age," both citizens and those "who have made a declaration of intention to become" citizens, certain men between 45 and 64, and "female citizens of the United States who are members of the National Guard").
104 Webster, American Dictionary (unpaginated) (emphasis added).
105 1 Blackstone at *134, 138, 413.
106 Art. I, § 8, cl. 15.
107 29 Op. Att'y Gen. at 322; see Perpich v. Department of Defense, 496 U.S. 334, 341-44 (1990).
108 307 U.S. at 179 (emphases added); see id. at 179-82 (collecting historical support); see Presser v. Illinois, 116 U.S. 252, 265 (1886) ("It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States."); Maryland v. United States, 381 U.S. 41, 46 (1965) (describing pre-World War I militia as "a citizen army").
109 See, e.g., Silveira, 312 F.3d at 1069-72.
110 Aristocrotis, The Government of Nature Delineated, or An Exact Picture of the New Federal Constitution (1788), reprinted in 3 Complete Anti-Fed. at 202.
111 Lund, 31 Ga. L. Rev. at 25, 26.
112 See Silveira v. Lockyer, 328 F.3d 567, 579 (9th Cir.) (Kleinfeld, J., joined by
Kozinski, O'Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehearing en banc) ("The panel seems to imagine that a well regulated militia is a people disarmed until the government puts guns in their hands after summoning them to service."), cert. denied, 124 S. Ct. 803 (2003).
113 See below, Part IV.A, for St. George Tucker's discussion of a similar point.
114 307 U.S. at 178-79 (emphasis added).
115 Va. Decl. of Rights § 13 (1776), reprinted in 7 Fed. and State Consts. at 3814.
116 N.Y. Const. § 40 (1777), reprinted in 5 Fed. and State Consts. at 2637.
117 Federalist No. 29, at 183-84 (A. Hamilton) (emphases added).
118 Sentiments on a Peace Establishment (1783), reprinted in 3 The Founders' Constitution 129 (Phillip B. Kurland and Ralph Lerner eds., 1987) (emphases added).
119 Fed. Farmer No. 3, reprinted in 2 Complete Anti-Fed. at 242; Fed. Farmer No. 18, reprinted in id. at 342 (emphases added).
120 Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 137 n.13 (1997).
121 U.S. Const. art. I, § 8, cl. 15; see id. amend V (discussing militia service in "War or public danger").
122 4 Blackstone at *151; e.g., Mass. Const. pt. I, art. 16 (1780), reprinted in 3 Fed. and State
Consts. at 1892. Similarly, the English Declaration of Rights, well known to the Founding Generation, see below, Part
III.A, charged King James II with having sought to "subvert and extirpate" the "liberties of this kingdom" by taking several actions "utterly and directly contrary to" the "freedom of this realm." 1 W. & M.,
Sess. 2, c. 2, § 1 (1689).
123 See also Malcolm, To Keep and Bear at 50-53, 115-16, 123 (militia officers' use of discretionary power to disarm); id. at 45-46 (disarmament by Charles II prior to 1662); id. at 85 (disarmament by militia in 1678); id. at 103 (use of militia by James II to disarm suspicious persons); id. at 105 (attempted use of militia in 1686 to disarm by enforcing game act); id. at 31 (in Civil War); see also id. at 92-93, 95 (in response to 1683 Rye House plot; confiscated arms given to militia); id. at 100 (disarmament by Charles II in western England early in reign, and in response to Rye House plot later). Efforts to disarm and undermine the militia also included requiring its members to "store" their arms in government magazines. See id. at 38, 78-79, 96-97; see also id. at 3, 5, 10-11 (discussing private ownership and storage prior to English Civil War, and failed plans to require public storage). The actions of white militias toward freed blacks in the South after the American Civil War were similar. See Part
124 Va. Decl. of Rights § 13 (1776), reprinted in 7 Fed. and State Consts. at 3814; see also Md. Const.,
Decl. of Rights § 25 (1776), reprinted in 3 id. at 1688 ("That a well-regulated militia is the proper and natural defence of a free government.").
125 1 Debate on the Const. at 711-12.
126 Fed. Farmer No. 18, reprinted in 2 Complete Anti-Fed. at 341-42.
127 James Burgh, Political Disquisitions, reprinted in part in 3 Founders' Const. at 126, 125; see Federalist No. 56 at 382 n.* (J. Madison); see also 2 Tucker's Blackstone at *245 n.7 (quoting Burgh's Disquisitions). In both passages, Burgh was loosely quoting Andrew Fletcher, a prominent member of the Scottish Parliament prior to union with England in 1707. See A Discourse of Government with relation to Militias (1698), reprinted in Andrew Fletcher, Political Works 21-22 (John Robertson ed., 1997); Speeches by a member of the Parliament, No. 7 (1703), reprinted in id. at 149-50. Regarding Fletcher and Burgh, see David Thomas
Konig, The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of "the Right of the People to Keep and Bear Arms," 22 Law &
Hist. Rev. 119, 125-26, 136-39 (2004).
128 Burgh, Political Disquisitions, reprinted in 3 Founders' Const. at 124, 126. As Fletcher put it: "I cannot see, why arms should be denied to any man who is not a slave, since they are the only true badges of liberty . . . neither can I understand why any man that has arms, should not be taught the use of them." A Discourse of Government, reprinted in Fletcher, Political Works at 23.
129 The duty to serve in the militia and the right to possess or carry weapons for self-defense were related but distinct in colonial America. One might have the latter without the former. See Cottrol & Diamond, 80 Geo.
L.J. at 325-37 (surveying colonial laws and explaining the development of "the view that the security of the state was best achieved through the arming of all free citizens," regardless of eligibility for militia service); see also Part II.B.1, above (discussing right to "keep" arms for private purposes).
130 1 Blackstone at *144. Blackstone also described the fundamental "right of personal security" as including protection against "loss of limb," so as to guard a man's ability "to protect himself from external injuries in a state of nature," and condemned any destruction of limbs as "a manifest breach of civil liberty," id. at *129, 130; and he set out the basic common-law rule of self-defense, "the primary law of nature," by which it is lawful for a person "forcibly attacked in his person or property . . . to repel force by force" without being liable for breach of the peace or a resulting homicide, 3 id. at *3-4. The importance of this right of self-defense was reinforced by the absence of any constitutional duty of government to defend citizens' lives, liberty, or property. See DeShaney v. Winnebago County Soc.
Servs. Dept., 489 U.S. 189, 195-97 (1989).
131 John Locke, Second Treatise of Government §§ 18-19, at 12-13 (Richard H. Cox ed., 1982) (1689); see also id. §§ 204-10, at 126-29 (similar). Blackstone and Locke disagreed on the exact scope of the right of self-defense. 4 Blackstone at *181-82; see also 1 id. at *251. Locke was, after Blackstone and
Montesquieu, the writer whom American political writers of the Founding cited most. Malcolm, To Keep and Bear at 142 & 214 n.44. His thinking is particularly evident in the Declaration of Independence. See also 2 Tucker's Blackstone at *161 & n.25.
132 See Van Alstyne, 43 Duke L.J. at 1243 (The Second Amendment "looks to an ultimate reliance on the common citizen who has a right to keep and bear arms . . . as an essential source of security [for] a free state."); see also Lund, 31 Ga. L. Rev. at 24.
133 Cf. Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (rejecting argument that the personal "liberty" that the Fourteenth Amendment protects "encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments") (emphasis added) (citation omitted); Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (plurality opinion) (similar, quoting Poe v.
Ullman, 367 U.S. 497, 542-43 (1961) (Harlan, J., dissenting)); Johnson v.
Eisentrager, 339 U.S. 763, 784 (1950) (describing First, Second, Fourth, Fifth, and Sixth Amendments as the "civil-rights Amendments"); Robertson v. Baldwin, 165 U.S. 275, 281 (1897) (describing Bill of Rights as embodying "certain guaranties and immunities which we had inherited from our English ancestors"). While some might argue that, as an original matter, the First Amendment's Establishment Clause (which makes no reference to any "right" or "freedom") was an exception to this rule, the Supreme Court has held that it too creates an individual right, applicable even against States. See Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring); Everson v. Board of Ed., 330 U.S. 1, 8 (1947); David Currie, The Constitution in the Supreme Court: The Second Century 339-40 (1990).
134 Cooley, General Principles at 200.
135 Story, Abridgement § 984, at 698 (commencing discussion of First through Fourth, and Eighth through Tenth Amendments).
136 See 4 Blackstone at *152 n.a; John O. McGinnis, The Once and Future Property-Based Vision of the First Amendment, 63 U. Chi. L. Rev. 49, 92-94 (1996).
137 Compare 1 Blackstone at *138 ("The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.") (emphasis added), with id. at *144 (recognizing "the right of having and using arms") (emphasis added); see above, Part II.B.1 (discussing English cases in 1700's approving the "keeping" of arms for defense of one's self and home).
138 1 W. & M., Sess. 2, c. 2, § 1, paras. 5 & 7 of the list of rights.
139 See also 1 Blackstone at *143-44 (similar); Jean L. De Lolme, 2 The Rise and Progress of the English Constitution 886-87 (A. J. Stephens ed., 1838) (1784) (noting that English Bill of Rights "expressly ensured to individuals the right of publicly preferring complaints against the abuses of the government, and, moreover, of being provided with arms for their own
defence," and then quoting 1 Blackstone at *144 regarding these rights).
140 See 4 id. at *145-49 (discussing the following misdemeanor breaches of the peace: affray, riot, rout, unlawful assembly, tumultuous petitioning, forcible entry or
detainer, and going armed with dangerous or unusual weapons to the terror of the people). Among felonies against the public peace, Blackstone first listed violation of the Riot Act against "riotous assembling of twelve persons" and then described "unlawful hunting" in certain parks, which involved being disguised and "armed with offensive weapons." Id. at *142-44.
141 2 Tucker's Blackstone at *143-44 nn.38-41. See also United States v.
Cruikshank, 92 U.S. 542, 551-53 (1876) (analyzing the two rights similarly); Logan v. United States, 144 U.S. 263, 286-87 (1892) (same).
142 Federalist No. 29, at 185 (A. Hamilton); see also id. No. 46, at 321-22 (J. Madison).
143 U.S. Const. art. I, § 10, cl. 3. See Houston v. Moore, 18 U.S. (5 Wheat.) 1, 52 (1820) (Story, J., dissenting); Va.
Ratif. Conv., in 10 Doc. Hist. at 1307 (remarks of John Marshall, June 16).
144 See Story, Abridgement § 593, at 425; Va. Ratif. Conv., in 10 Doc. Hist. at 1304, 1311 (remarks of James Madison, June 16); id. at 1306-07 (remarks of John Marshall, same).
145 Compare 9 Doc. Hist. at 1074 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (H. Lee, June 9), id. at 1102 (Randolph, June 10), 10 id. at 1273 (Madison, June 14), id. at 1306-08 (Marshall, June 14); with 9 id. at 957-58, 1066 (Patrick Henry, June 5 & 9), 10 id. at 1270-71 (George Mason, June 14), id. at 1305 (William Grayson, June 16). Henry Lee should not be confused with his Anti-Federalist cousin Richard Henry Lee.
146 Story, Commentaries § 1202, at 85-86.
147 18 U.S. (5 Wheat.) 1 (1820). See Part IV.B.1, below.
148 Perpich, 496 U.S. at 353-54 (footnotes omitted).
149 312 F.3d at 1081 n.43.
150 As we explain below in Part III.C, several state ratifying conventions unsuccessfully proposed similar language in suggested amendments distinct from those securing the right to bear arms.
151 Silveira v. Lockyer, 328 F.3d 567, 580 (9th Cir.) (Kleinfeld, J., joined by
Kozinski, O'Scannlain, and T.G. Nelson, JJ., dissenting from denial of rehearing en banc), cert. denied, 124 S. Ct. 803 (2003).
152 Loving v. United States, 517 U.S. 748, 766 (1996).
153 Robertson v. Baldwin, 165 U.S. 275, 281 (1897), discussed further below in Part
154 See 1 Blackstone at *151.
155 The Founders were well aware of the events leading up to the Declaration. A delegate at the Massachusetts Ratifying Convention, warning against overreacting to the weakness of the Articles of Confederation, pointed to the Restoration, in which the people, "so vexed, harassed and worn down . . . [had] run mad with loyalty, and would have given Charles any thing he could have asked." 1 Debate on the Const. at 897 (remarks of Charles Turner, Jan. 17, 1788). A delegate at Virginia's convention drew the opposite lesson: The new Constitution would prevent the anarchy that had led England into the arms of Charles II. 2 id. at 756 (remarks of Zachariah Johnston, June 25, 1788).
156 13 & 14 Car. II, c. 3, § 14.
157 Malcolm, To Keep and Bear at 36, 38, 43, 45-48, 50-53, 85, 100, 115-16, 123; see also id. at 92-93, 95; Lois G.
Schwoerer, The Declaration of Rights, 1689, at 76 (1981) ("Charles II had made effective use of" the militia acts "to try to snuff out political and religious dissent," disarming individuals and towns and confiscating weapons). He had begun doing so as soon as he assumed the throne. An interim act in 1661 approved his actions and provided indemnity to militiamen. 12 Car. II, c. 6, § 3 (favorably recognizing that "divers arms have been seized and houses searched for arms"); cf. Federalist No. 69, at 465 n. (A. Hamilton) (discussing 1661 act).
158 Malcolm, To Keep and Bear at 36-39.
159 Id. at 63. See also Schwoerer, Declaration at 75-76 (describing Charles II's actions, including disarmament, and noting rise of complaints from Commons beginning in 1668).
160 Malcolm, To Keep and Bear at 12; see id. at 69-76; Schwoerer, Declaration at 78 (describing it as "the most stringent and comprehensive of the game laws") (internal quotation marks omitted).
161 22 & 23 Car. II, c. 25, § 3 (providing that all who did not have estate "of the clear yearly value of one hundred pounds" per year were "not allowed to have or keep for themselves, or any other person or persons, any guns, bows, greyhounds . . . or other engines").
162 See 4 Blackstone at *55 (explaining various legal disabilities on certain Roman Catholics, including several dating from English Revolution or earlier, by stating that such persons "acknowledge a foreign power, superior to the sovereignty of the kingdom"); id. at *58 (hoping that "a time . . . should arrive" soon when it would be safe to "review and soften these rigorous edicts").
163 See Malcolm, To Keep and Bear at 95-106; Schwoerer, Declaration at 71-73, 75-76; see also Federalist No. 26, at 166 (A. Hamilton); Marcus No. 4 (James
Iredell) (1788), reprinted in 1 Debate on the Const. at 391; Mass. Ratif. Conv., in id. at 904 (remarks of Thomas Dawes, Jr., Jan. 24, 1788).
164 The Bill of Rights is at 1 W. & M., Sess. 2, c. 2 (1689). Its first three sections, except for the initial preamble, consist of the Declaration, see
Schwoerer, Declaration at 295 (App. 1, reprinting Declaration), and it recounts the events of the Revolution. See also 1 W. & M.,
Sess. 1, c. 1, § 2 (1689) (noting presentation and acceptance of crown, and proclaiming Parliament to be regular from that date); id. c. 6 (establishing coronation oath); 1 Blackstone at *128, 152, 211-16, 245 (discussing events); Federalist No. 84, at 578 (A. Hamilton) (similar).
165 Federalist No. 26, at 165-66. See Schwoerer, Declaration at 289 (Americans greeted the revolution and Declaration "with enthusiasm.").
166 Similarly, the same Parliament enacted a law providing that a "papist or reputed papist" could "have or keep . . . such necessary weapons, as shall be allowed to him by order of the justices of the peace . . . for the defence of his house or person." 1 W. & M.,
Sess. 1, c. 15, § 4 (1689) (emphasis added).
167 See Malcolm, To Keep and Bear at 86-89 (noting effect of wealth qualification but also dearth of prosecutions merely for possession). Blackstone complained that there was "fifty times the property required to enable a man to kill a partridge, as to vote for a knight of the shire." 4 Blackstone at *175. In addition, these clauses probably referred to two statutes from the 1540's restricting ownership and use of short handguns based on wealth, outlawing shot, and regulating the use of guns in cities or towns, see 33 Hen. VIII, c. 6 (1541); 2 & 3 Edw. VI, c. 14 (1548), and they may also have referred to the Militia Act, see Malcolm, To Keep and Bear at 120.
168 Lois G. Schwoerer, To Hold and Bear Arms: The English Perspective, 76 Chi.-Kent L. Rev. 27, 59 (2000). She seems to misunderstand the individual-right view as requiring an unlimited right. See id. at 56, 60.
169 Schwoerer, Declaration at 283; see Malcolm, To Keep and Bear at 119-20. See also Jean L. De
Lolme, 2 The Rise and Progress of the English Constitution 886 (A. J. Stephens ed., 1838) (1784) (Declaration "expressly ensured to individuals the right of [petition and] of being provided with arms for their own
170 1 Blackstone at *271.
171 See Federalist No. 84, at 578-79 (A. Hamilton) (arguing "that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince," and
"[s]uch . . . was the declaration of rights presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the bill of rights").
172 Silveira, 328 F.3d at 582 (Kleinfeld, J.).
173 5 Ann., c. 14, § 3 (1706); see 4 & 5 W. & M., c. 23, § 3 (1693) (similar). Parliament also repealed the later of the two statutes of the 1540's mentioned in note 167, noting its desuetude. 6 & 7 Will. III, c. 13, § 3 (1695). Enforcement of the other was, at least in the 1600's, lax and selective. See Malcolm, To Keep and Bear at 80-81, 87. Efforts to revise the Militia Act failed, but the right in the Bill may have sufficed to restrain the King from disarming Protestants. See id. at 123-25; see also 1 Blackstone at *271;
Schwoerer, Declaration at 75-78, 267, 283.
174 Rex v. Gardner, 87 Eng. Rep. 1240, 1241, 7 Mod. Rep. 279 (K.B. 1739).
175 Wingfield v. Stratford, 96 Eng. Rep. 787, 787-88, Sayer Rep. 15 (K.B. 1752) (Lee,
C.J., citing Rex v. Gardner, 2 Strange Rep. 1098 (K.B. 1738)); Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482
(C.P. 1744), respectively; see also Part II.B.1, above (discussing use of "keep" in these and other cases); Malcolm, To Keep and Bear at 128 (quoting commentator of early 1800's reaffirming rule of these cases). In addition, it appears that courts strictly interpreted indictments under the game laws. See King v.
Silcot, 87 Eng. Rep. 186, 186 n.(b), 3 Mod. Rep. 280 (K.B. 1690) (reporter's note from 1793).
176 Mallock, 87 Eng. Rep. at 1374; Wingfield, 96 Eng. Rep. at 787 (Lee, C.J.).
177 "Legality of the London Military Foot-Association" (July 24, 1780), reprinted in William
Blizard, Desultory Reflections on Police: With an Essay on the Means of Preventing Crimes and Amending Criminals 59, 59-60 (1785) (italics omitted). For background, see Part II.B.2 above. The Recorder found it "a matter of some difficulty to define the precise limits and extent of the rights of the people of this realm to bear arms, and to instruct themselves in the use of them, collectively." Id. at 59. At the very least, he opined, such a group needed to (1) have a "lawful" "professed purpose and object," (2) "demean themselves in a peaceable and orderly manner" consistent with that purpose, (3) not assemble in numbers that "manifestly and greatly exceed" that purpose; and (4) not "act without the authority of the civil magistrate" except to suppress "sudden, violent, and felonious breaches of the peace." Id. at 62 (italics omitted). See also William Hawkins, 1 A Treatise on the Pleas of the Crown
ch. 63, at 136, § 10 (1724; reprint 1972) (noting legality of person "arm[ing] himself to suppress dangerous Rioters, Rebels, or Enemies" and
"endeavour[ing] to suppress or resist such Disturbers of the Peace or Quiet of the Realm"); id.
ch. 65, at 161, § 21 (noting right to do so when assisting Justice of Peace against riot).
178 See William Blackstone, 2 Commentaries on the Laws of England *412 n.8 (William Draper Lewis ed., 1900) (reprinting annotation of Edward Christian). Christian's posthumous Blackstone was published in 1793-95, see Malcolm, To Keep and Bear at 134, 210, and available in America, see 1 Tucker's Blackstone at *145 n.42. Although the law was clear, some questioned how much as a practical matter the revision of the game laws had benefited commoners, as we explain in the discussion of the Pennsylvania Constitution below in Part III.B.2.
179 1 Blackstone at *121; id. at *123, 124.
180 Id. at *123. He contrasted "relative" individual rights, "which are incident to [persons] as members of society, and standing in various relations to each other." Id.
181 Id. at *124-28.
182 Id. at *129. These reappear throughout the American Constitution, in general protections against deprivations of "life, liberty, or property, without due process of law" and in specific rights. See, for example, St. George Tucker's footnotes annotating Blackstone's exposition of the three principal rights with parallels in the Constitution, 2 Tucker's Blackstone at *129, 133-40.
183 1 Blackstone at *140-41.
184 See id. at *141.
185 Id. at *141, 143-44.
186 Id. at *144.
187 See also 4 id. at *55-58 (elsewhere describing prohibitions against certain Roman Catholics keeping arms as hopefully temporary suspensions of rights). He summarized the militia in Chapter 13, 1 id. at *412-13.
188 1 id. at *144.
189 Id. at *130. See id. at *134 (summarizing common law's special protection for "those limbs and members that may be necessary to a man in order to defend himself or annoy his enemy").
190 2 id. at *412, 413.
191 4 id. at *416; see 2 id. at *415-16 (forest laws produced "the most horrid tyrannies and oppressions").
192 2 id. at *412. As an example, he cited a popular book, by a bishop (and thus lord), that praised banning "Peasants and Mechanics" from hunting game: "It was not at all for the public Good to suffer [them] . . . to run up and down the Woods and Forests, armed; which . . . draws them on to Robbery and Brigandage: Nor to permit the populace, in Towns and Cities, to have, and carry Arms at their pleasure; which would give opportunity and encouragement to Sedition, and Commotions." William
Warburton, 1 The Alliance Between Church and State: Or, the Necessity and Equity of An Established Religion and a Test Law Demonstrated 324 (London 4th ed. 1766).
193 4 Blackstone at *174-75.
194 See 2 id. at *411-12 (approving as "natural" a ban on unauthorized hunting on private property); see 4 id. at *174 (being less critical of the "forest law," which simply prohibited hunting in the king's forests).
195 See 4 id. at *144 (unlawful hunting - being disguised and "armed with offensive weapons" in breach of peace and to terror of public); id. at *145 (affray (public fighting), including attack with or drawing of weapon on church grounds); id. at *148 (forcible entry or
detainer, "such as is carried on and maintained with force, with violence, and unusual weapons"); id. at *149 ("riding or going armed, with dangerous or unusual weapons . . . by terrifying" the people); see also id. at *146-47 (riots, routs, unlawful assemblies, and tumultuous petitioning); id. at *168 (quasi-nuisance of "making, keeping, or carriage, of too large a quantity of gunpowder at one time or in one place or vehicle"); cf. id. at *182 (excusable homicide by misadventure, such as "where a person qualified to keep a gun is shooting at a mark and undesignedly kills a man: for the act is lawful, and the effect is merely accidental"); 3 id. at *4 (noting limitation of self-defense to "resistance" that "does not exceed the bounds of mere defence and prevention").
196 United States v. Miller, 307 U.S. 174, 179-80 (1939) (internal quotation marks omitted). See
Kates, 82 Mich. L. Rev. at 215-16 ("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. 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.") (footnotes omitted). In Virginia, "Every able-bodied freeman, between the ages of 16 and 50, is enrolled in the militia. . . . The law requires every militia-man to provide himself with the arms usual in the regular service." That requirement "was always indifferently complied with," and the militia's arms were "frequently called for to arm the regulars," so that "in the lower parts of the country they are entirely disarmed." But
"[i]n the middle country a fourth or fifth part of them may have such firelocks as they had provided to destroy the noxious animals which infest their farms; and on the western side of the Blue
[R]idge they are generally armed with rifles." Thomas Jefferson, Notes on the State of Virginia 88 (William Peden ed., 1954). For more regarding the militia, see above, Part II.C.2-4.
197 See Malcolm, To Keep and Bear at 139 (quoting colonial statutes from Rhode Island, Virginia, and Georgia);
Kates, 82 Mich. L. Rev. at 216 (discussing Georgia law); id. at 240 ("[T]he English Game Acts . . . had never been a part of the colonial law"); 5 Tucker's Blackstone at *175 n.16 (describing game laws of Virginia, limited to prohibiting trespass and conversion and establishing hunting season for deer).
198 See Cottrol & Diamond, 80 Geo. L.J. at 323-27 (noting that "the traditional English right" became "a much broader American one" as part of "a more general lessening of class, religious, and ethnic distinctions among whites in colonial America," but that "the law was much more ambivalent with respect to blacks"; surveying varying colonial laws regarding right of blacks to carry weapons or keep them in their homes, and noting usual exclusion from militia duty, except in "times of crisis"); Malcolm, To Keep and Bear at 140-41 ("The second group [after Indians] forbidden to possess weapons were black slaves, with restrictions sometimes extended to free blacks . . . . Northern colonies were ambivalent about blacks possessing firearms"; surveying colonial laws and drawing parallel to England's ambivalent treatment of right of Roman Catholics to have arms).
199 Boston Chronicle at 363, col. 2 (Sept. 19, 1768), quoted in Stephen P.
Halbrook, A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees 1-2 (1989). This resolution was republished in the Maryland Gazette. See id. at 61.
200 Boston Gazette, and Country Journal at 2, col. 1 (Jan. 30, 1769), quoted in
Halbrook, Right to Bear at 6; see Boston under Military Rule, 1768-1769, as Revealed in a Journal of the Times 61 (Oliver Morton Dickerson ed., 1936) (reprinting same passage from Boston Evening Post (Apr. 3, 1769)).
201 Samuel Adams, Boston Gazette (Feb. 27, 1769), reprinted in 1 The Founders' Constitution 90 (Philip B. Kurland & Ralph Lerner eds., 1987). Adams quoted 1 Blackstone at *143-44 & 144.
202 "Boston, March 17," New York Journal, Supplement at 1, col. 3 (Apr. 13, 1769), reprinted in Boston under Military Rule at 79; see
Halbrook, Right to Bear at 7 (quoting same passage).
203 3 Legal Papers of John Adams 247-48 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (quoting "Hawkins
p. 71, § 14"). For the facts, see id. at 1 (note). Adams secured several acquittals. Id. at 29.
204 John Adams, 3 A Defence of the Constitutions of Government of the United States of America 475 (1787). The Ninth Circuit selectively quoted this sentence to claim that Adams "ridiculed . . . an individual right to personal arms" and asserted that "the general availability of arms" would "'demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man - it is a dissolution of the government.'"
Silveira, 312 F.3d at 1085. In these portions, Adams was merely arguing against command of the militia by private persons or localities, while also expressly reiterating the right of arming for private self-defense.
205 See Hardy, 9 Harv. J.L. & Pub. Pol'y at 590; Halbrook, Right to Bear at 9, 16, 72. Soldiers seized provincial armories in Cambridge and Charlestown. In response, "twenty thousand Yankees picked up their muskets and headed for Boston" to confront the British. Robert A. Gross, The Minutemen and Their World 55 (1976).
206 See First Continental Congress, "Appeal to the Inhabitants of Quebec" (Oct. 1774), reprinted in 1 American Political Writing During the Founding Era, 1760-1805, at 237 (Charles S. Hyneman & Donald S. Lutz eds., 1983) ("The injuries of Boston have roused and associated every colony.");
Halbrook, Right to Bear at 88-89 (quoting warning of South Carolina's governing body in 1774 against British "design of disarming the people of America" through the embargo).
207 See Gross, Minutemen at 59. In Concord, "Minutemen trained twice a week on the common and carried their muskets everywhere, in the fields, in shops, even in church." When they were mustered in March 1775, it "presented a revealing portrait of the community. This was a citizen army of rural neighbors. . . . The Concord militia included nearly everyone between the ages of sixteen and sixty." Id. at 69-70.
208 Hardy, 9 Harv. J.L. & Pub. Pol'y at 590-91; Malcolm, To Keep and Bear at 145-46.
209 Hardy, 9 Harv. J.L. & Pub. Pol'y at 592; Halbrook, Right to Bear at 16.
210 1 Journals of Congress 137 (July 6, 1775) (1800); see Halbrook, Right to Bear at 13-15; Hardy, 9
Harv. J.L. & Pub. Pol'y at 591.
211 1 The Papers of George Mason 1725-1792, at 210-11 (Robert A. Rutland ed., 1970).
212 Id. at 212.
213 Id. at 229-31.
214 See Halbrook, Right to Bear at 29-30.
215 Richard Caswell, William Hooper, & Joseph Hewes, "To the Committees of the Several Towns and Counties of the Province of North Carolina," N.C. Gazette
(Newburn), at 2, col. 3 (July 7, 1775), excerpted in id. at 29.
216 See 4 Adams Papers at 78 n.6 (note).
217 John Adams, Thoughts on Government (Apr. 1776), reprinted in 4 id. at 91. This pamphlet, written for political leaders in North Carolina, Virginia, and New Jersey, was widely reprinted and discussed for several years. See id. at 65, 68-72 (note).
218 Letter from Greene to Jefferson (Nov. 20, 1780), in 4 The Papers of Thomas Jefferson 130-31 (Julian P. Boyd ed., 1951).
219 See, e.g., "A Democratic Federalist," Penn. Herald (Oct. 17, 1787), reprinted in 2 Doc.
Hist. at 197 (arguing that "a well-regulated militia" is "sufficient for every purpose of internal defense," as shown by victories at Lexington and Bunker Hill); Va.
Ratif. Conv., in 9 Doc. Hist. at 981 (remarks of Edmund Randolph, June 6, 1788) ("I will pay the last tribute of gratitude to the militia of my country: They performed some of the most gallant feats during the last war, and acted as nobly as men enured to other avocations could be expected to do: But, Sir, it is dangerous to look to them as our sole protectors."); Federalist No. 25, at 161-62 (A. Hamilton) (praising militias' valor but emphasizing insufficiency for defense). General Greene recognized that the militia should "not [be] depended upon as a principal but employed as an
Auxilliary." Letter to Jefferson, in 4 Jefferson Papers at 131.
220 Federalist No. 46, at 321-22 (J. Madison).
221 The first constitutions of New Jersey, South Carolina, Georgia, and New York did not include separate bills of rights. Their constitutions did protect a few rights, but did not include the right to arms or general statements regarding the militia. See Bernard Schwartz, 1 The Bill of Rights: A Documentary History 256 (1971) (N.J. 1776); id. at 291 (Ga. 1777); id. at 301 (N.Y. 1777); id. at 325 (S.C. 1778). Georgia did provide for forming a militia battalion in any county with "two hundred and fifty men, and upwards, liable to bear arms," id. at 297, and New York declared the duty of all to provide personal service to protect society, see id. at 312, much as the Pennsylvania Declaration, discussed below, did. Connecticut and Rhode Island did not adopt new constitutions. Id. at 289.
222 Va. Bill of Rights § 13 (1776), reprinted in 7 Fed. and State Consts. at 3814.
223 Regarding this point and the meaning of both "militia" and "well regulated militia," see above, Parts II.C.2-4, and III.B.1, at note 196 (quoting Jefferson's Notes on the State of Virginia).
224 See 1 Mason Papers at 274-75, 286 (editorial notes); id. at 287 (final draft).
225 Delaware, Maryland, and New Hampshire adapted Virginia's language, omitting definition of the militia and changing "free state" to "free government" while retaining the implicit connection between "a well regulated militia" and the avoidance of standing armies and military insubordination. See Del.
Decl. of Rights §§ 18-20 (1776), reprinted in 5 Founders' Const. at 5, 6; Md.
Decl. of Rights §§ 25-27 (1776), reprinted in 3 Fed. and State Consts. at 1688;
N.H. Const. pt. I, arts. 24-26 (1784), reprinted in 4 Fed. and State Consts. at 2456. The Delaware Constitution also specially provided that
"[t]o prevent any violence or force being used at . . . elections, no person shall come armed to any of them, and no muster of the militia shall be made on that day." Del. Const. art. XXVIII (1776), reprinted in 1 Fed. and State
Consts. at 567.
226 Reprinted in 5 Fed. and State Consts. at 3083.
227 See 1 Mason Papers at 276 (note discussing "the widespread and almost immediate influence of the Virginia Declaration of Rights on other nascent states," including Pennsylvania).
228 5 Fed and State Consts. at 3083. Such personal service would be difficult if one could not own private arms. This duty may have been broader than the obligation of militia duty, perhaps including the posse
comitatus. See generally Federalist No. 29, at 182-83 (A. Hamilton). New Hampshire's constitution, while praising the well-regulated militia, recognized this duty separately,
N.H. Const. pt. I, arts. 12-13, reprinted in 4 Fed. and State Consts. at 2455, although New York's connected the two, N.Y. Const. § 40 (1777), reprinted in 5 id. at 2637.
229 Pa. Plan or Frame of Gov't § 5 (1776), reprinted in 5 Fed. and State Consts. at 3084.
230 Id. § 43, reprinted in 5 Fed. and State Consts. at 3091.
231 See Halbrook, Right to Bear at 23-25. Some in England shared this concern. See
Schwoerer, 76 Chi.-Kent L. Rev. at 52-53.
232 Pa. Const. art. IX, §§ 20 & 21, reprinted in 5 Fed. and State Consts. at 3101. Section 22 addressed standing armies and civilian control of the military. Kentucky, admitted in 1791 as the fifteenth state, copied this language on the right verbatim. See Ky. Const. art. XII, § 23 (1792), reprinted in 3 Fed. and State
Consts. at 1275.
233 Pa. Const. art. VI, § 2, reprinted in 5 Fed. and State Consts. at 3099. Kentucky also copied this provision. See Ky. Const. art. VI, § 2, reprinted in 3 Fed. and State
Consts. at 1271.
234 Reprinted in 5 Fed. and State Consts. at 2788.
236 State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2. Another early decision recognized that the right of "free people of color" to bear arms might be abridged - but only because the court believed that they "cannot be considered as citizens," or at least not full citizens, not because of any exclusion from the militia (a subject the court did not mention). State v. Newsom, 27 N.C. (5
Ired.) 250, 1844 WL 1059, at *1, 2.
237 See infra, note 239.
238 This was Richard Caswell, who became the first governor. Another member of the committee also had been one of the three delegates. See
Halbrook, Right to Bear at 29-31; see also 5 Fed. and State Consts. at 2794.
239 Vt. Const. ch. I, § 15, reprinted in 6 Fed. and State Consts. at 3741. The constitution also asserted independence from New York. Id. at 3738-39 (preamble); see
Halbrook, Right to Bear at 37 ("Recognition of bearing arms to defend the state was more radical than self-defense, since it justified action by armed private citizens to defend an incipient state from the constituted authorities of both New York and Great Britain."). The First Congress admitted Vermont as the fourteenth State, see Act of Feb. 18, 1791, 1 Stat. 191, in time for it to ratify the Bill of Rights, see Schwartz, 2 Bill of Rights at 1202-03.
240 Vt. Const. ch. I, § 14, reprinted in 6 Fed. and State Consts. at 3741 (speech); id. § 9, at 3740-41 (duty of personal service, and conscientious objectors); id.
ch. II, § 5, at 3742 (militia of "freemen . . . and their sons"); id. § 39, at 3748 (hunting).
241 See Vt. Const. ch. I, §§ 10, 15 & 18 (1786), reprinted in 6 id. at 3753 (duty of personal service and conscientious objectors, speech, and arms, respectively); id.
ch. II, § 19, at 3758 (militia, including all "inhabitants" rather than all freemen and their sons); id. § 37, at 3760 (hunting); Vt. Const.
ch. I, arts. 9, 13 & 16 (1793), reprinted in id. at 3763-64 (duty of personal service and conscientious objectors, speech, and arms, respectively); id.
ch. II, § 22, at 3768 (militia); id. § 40, at 3770 (hunting).
242 Reprinted in 3 Fed. and State Consts. at 1892.
243 Mass. Const. pt. I, art. 1 (1780), reprinted in id. at 1889.
244 See Halbrook, Right to Bear at 41-42.
245 Mass. Const. pt. I, art. 19, reprinted in 3 Fed. and State Consts. at 1892. An early decision of the State's supreme court, interpreting the Declaration's protection of the individual's "liberty of the press" as not protecting common-law libel, drew a parallel to "the right to keep fire arms, which does not protect him who uses them for annoyance or destruction." Commonwealth v. Blanding, 20 Mass. 304, 338 (1825). Whether the court had in mind Article 17 or the right from England is unclear, but in either case it recognized a right of individuals to keep arms.
246 In addition, the purposes of calling out the militia seem to have been narrower than whatever "for the common
defence" signified, as the governor was authorized to call it out "for the special defence and safety of the commonwealth," which appears to have meant war, invasion, or rebellion. Mass. Const. pt. II,
ch. 2, § 1, art. 7, reprinted in 3 Fed. and State Consts. at 1901.
247 Schwartz, 1 Bill of Rights at 337. The only change between their draft and the final was the deletion of "standing" before "armies." Id. at 372 (draft); id. at 364 (deletion).
248 As with North Carolina's emphasis on the "defence of the State," Massachusetts's emphasis on the "common
defence" may have represented the assertion of a right that went beyond the traditional English one. "Common" had been deleted from a similar clause ("for their common
defence") in a draft of the English Declaration, perhaps at the urging of William of Orange or conservative Lords, who objected to suggestion of a popular right to check royal power. See Malcolm, To Keep and Bear at 119-21.
249 Madison, Notes of Debates at 630 (Sept. 12).
250 U.S. Const. art. I, § 8, cls. 15 & 16, and art. II, § 2, cl. 1. The Ninth Circuit claims that there was "disagreement among the delegates" over whether Congress's power to arm the militias "should be exclusive or concurrent" with the States.
Silveira, 312 F.3d at 1079. But the court only cites Perpich v. Department of Defense, 496 U.S. 334, 340 (1990), which does not support this claim; nor do the debates of the Convention, where the focus was on the extent of any federal authority to establish uniform discipline and regulation of the militia (including providing for arms), not on whether the States would retain concurrent authority in areas where federal power was granted. For the two chief debates, see Madison, Notes of Debates at 478, 483-85 (Aug. 18); id. at 512-16 (Aug. 23). Similarly, the Third Circuit has cited, in support of the collective-right view, a statement by Roger Sherman that States should retain power to use their militias for internal needs. See United States v. Tot, 131 F.2d 261, 266 (1942), rev'd on other grounds, 319 U.S. 463 (1943) (citing 5 Elliot's Debates 445 (2d ed. 1901)). We fail to see how this statement supports that view, particularly given that no one appears to have disagreed with Sherman; that he served on the committee that drafted what became the final version of Article I, Section 8, Clause 16, Notes of Debates at 480, 485 (Aug. 18); 494-95 (Aug. 21), and generally supported its compromise, id. at 513-14; and that he saw no need for amendments, see A Countryman No. 2 (1787), reprinted in 14 Doc.
Hist. at 172 (John P. Kaminski & Gaspare J. Saladino eds., 1983); A Countryman No. 3 (1787), reprinted in id. at 296; A Citizen of New Haven (1789), reprinted in Creating the Bill of Rights: The Documentary Record from the First Federal Congress 220 (Helen E. Veit et. al. eds., 1991)
251 The Ninth Circuit in Silveira did not mention this latter set of proposals, and the court presented the comments in the ratification debates most relevant to these separate proposals as if they instead related to the Second Amendment. See 312 F.3d at 1082-83; see also id. at 1078 (claiming without citation that
"[t]he compromise that the convention eventually reached, which granted the federal government the dominant control over the national defense, led ultimately to the enactment of the counter-balancing Second Amendment").
252 Robertson, 165 U.S. at 281 (discussing Bill of Rights in general); see
Silveira, 328 F.3d at 584 (Kleinfeld, J.) ("The Second Amendment was not novel, but rather codified and expanded upon long established principles.").
253 See, e.g., 2 Complete Anti-Fed. at 7, 11 (public objections of Mason and Gerry); Va.
Ratif. Conv., in 10 Doc. Hist. at 1212 (remarks of Patrick Henry, June 12, 1788) (invoking English Bill and state declarations); "Address by Sydney" (Robert Yates) (1788), reprinted in 6 Complete Anti-Fed. at 107, 109 (similar to Henry). One of the leading arguments of this point was by the Federal Farmer. See Fed. Farmer No. 16 (1788), reprinted in 2 Complete Anti-Fed. at 323.
254 See, e.g., Federalist No. 84, at 575-81 (A. Hamilton); Marcus No. 1, Answer to Mr. Mason's Objections (James
Iredell) (1788), reprinted in 1 Debate on the Const. at 363-64; Marcus No. 4 (1788), reprinted in id. at 387-90; America, To the Dissenting Members of the late Convention of Pennsylvania (Noah Webster) (1787), reprinted in 1 Debate on the Const. at 555-60.
255 As one Federalist criticized Luther Martin, an Anti-Federalist who had been a delegate to the Constitutional Convention: "One hour you sported the opinion, that Congress, afraid of the militia resisting their measures, would neither arm nor organize them: and the next, as if men required no time to breathe between such contradictions, that they would harass them by long and unnecessary marches, till they wore down their spirit and rendered them fit subjects for despotism." The Landholder No. 10 (1788), reprinted in 16 Doc.
Hist. at 265, 267 (John P. Kaminski & Gaspare J. Saladino eds., 1986).
256 Fed. Farmer No. 18 (1788), reprinted in 2 Complete Anti-Fed at 342; Va.
Ratif. Conv., in 10 Doc. Hist. at 1276 (remarks of Henry, June 14, 1788).
257 See, e.g., regarding all of these concerns, "John De Witt" No. 5 (1787), reprinted in 4 Complete Anti-Fed. at 36-37 (warning that federal government would neglect to arm militia, not trusting the people, and enforce unjust laws through standing army); Pa.
Ratif. Conv., in 2 Doc. Hist. at 509 (remarks of John Smilie, Dec. 6, 1787) ("When a select militia is formed; the people in general may be disarmed."); Fed. Farmer No. 3 (1787), reprinted in 2 Complete Anti-Fed. at 242 (discounting safeguard of armed
"yoemanry of the people," whom Congress would undermine through creating select militia); The Genuine Information Delivered to the Legislature of the State of Maryland Relative to the Proceedings of the General Convention Lately Held at Philadelphia; By Luther Martin, Esquire (1788), reprinted in 2 Complete Anti-Fed. at 59-60 (warning that Congress would use its militia and army powers "to subvert the liberties of the States and their citizens, since we [allow an unlimited standing army and,] by placing the militia under its power, enable it to leave the militia totally unorganized, undisciplined, and even to disarm them"); Va.
Ratif. Conv., in 10 Doc. Hist. at 1271 (remarks of Mason, June 14, 1788) (warning that Congress would "disarm the people" gradually, rather than "openly," by "totally disusing and neglecting the militia"). Henry repeatedly denounced the allegedly exclusive power. See 9 Doc.
Hist. at 957 (June 5) ("Of what service would militia be to you, when most probably you will not have a single musket in the State; for as arms are to be provided by Congress, they may or may not furnish them."); id. at 1066 (June 9) ("The power of arming the militia, and the means of purchasing arms, are taken from the States . . . . If Congress will not arm them, they will not be armed at all.").
258 See, e.g., Federalist No. 46, at 321-22 (J. Madison) (contrasting the "advantage of being armed, which the Americans possess," with the circumstances in "several kingdoms of Europe . . . [where] the governments are afraid to trust the people with arms"); An American Citizen IV: On the Federal Government (Tench Coxe) (1787), reprinted in 13 Doc.
Hist. at 433 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (arguing that, if tyranny threatened, the "friends to liberty . . . using those arms which Providence has put into their hands, will make a solemn appeal 'to the power above'"); "A Citizen of America," An Examination Into the Leading Principles of the Federal Constitution (Noah Webster) (1787), reprinted in 1 Debate on the Const. at 155 ("Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed").
259 John Marshall, for example, provided a standard analysis: "The truth is, that when power is given to the General Legislature, if it was in the State Legislatures before, both shall exercise it; unless there be an incompatibility in the exercise by one, to that by the other; or negative words precluding the State Governments from it. But there are no negative words here. It rests therefore with the States." Va.
Ratif. Conv., in 10 Doc. Hist. at 1307 (June 16).
260 Delaware already had ratified unanimously. After Pennsylvania's vote, New Jersey, Georgia, and Connecticut ratified by large majorities. No proposed amendments emerged from these conventions. See Schwartz, 2 Bill of Rights at 627, 674. Maryland ratified on April 26, 1788, without proposing amendments, although a committee had approved several, including a prohibition on subjecting the militia to martial law "except in time of war, invasion, or rebellion." The committee understood the militia to consist of "all men, able to bear arms," which would make martial law for the militia a pretext for applying it to the populace. See id. at 729-30, 734-35.
261 Schwartz, 2 Bill of Rights at 665. Tench Coxe, in a critique of the Minority, described this proposal as a "provision against disarming the people."
"Philanthropos," Penn. Gazette (1788), reprinted in 15 Doc. Hist. at 391, 393.
262 Schwartz, 2 Bill of Rights at 665. Noah Webster suggested that the Minority also propose
"[t]hat Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times." His serious criticism of Article 8 was that it was useless because aimed at game laws, which had never existed in America. He did not comment on Article 7. "America," Daily Advertiser (1787), reprinted in 1 Debate on the Const. at 559-60.
263 Schwartz, 2 Bill of Rights at 665.
264 Id. at 671-72.
265 Id. at 674-75, 681. South Carolina ratified in May 1788 without proposing any relevant amendments. See id. at 739, 756-57.
266 The convention had adjourned in February 1788 to avoid a vote against ratification. When it reconvened in the summer, it ratified by a vote of 57 to 47. See id. at 758.
267 Id. at 761; see id. at 758 (noting that the first nine New Hampshire amendments "were taken almost verbatim from those proposed by Massachusetts").
268 Id. at 758. See U.S. Const. art. VII.
269 See Schwartz, 2 Bill of Rights at 762, 764.
270 See id. at 765-66.
271 Schwartz, 2 Bill of Rights at 842. Mason drafted this provision. See 9 Doc.
Hist. at 821 (reprinting Mason's draft). Two articles later, Virginia also proposed exemptions for those "religiously scrupulous of bearing arms," again borrowing from Pennsylvania's Declaration. Schwartz, 2 Bill of Rights at 842.
272 Id. at 843.
273 Id. at 912. New York did not propose any protection for conscientious objectors.
274 Id. at 915, 918.
275 Id. at 932-33, 968-69; Halbrook, Right to Bear at 33-34.
276 First Inaugural Address (Apr. 30, 1789), reprinted in 1 A Compilation of the Messages and Papers of the Presidents 43, 45 (James D. Richardson ed., 1897).
277 Speech of Madison (June 8, 1789), reprinted in Veit, Creating at 78-79.
279 See Letter from Rep. Fisher Ames to George R. Minot (July 23, 1789) (discussing North Carolina), in
Veit, Creating at 269; Letter from Rep. William L. Smith to Edward Rutledge (Aug. 9, 1789) (North Carolina; noting disposition of House to "agree to some, which will more effectually secure private rights"), in id. at 272-73; Letter from Rep. Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789) (Pennsylvania Minority), in id. at 280.
280 Letter from Lee to Henry (May 28, 1789), in Veit, Creating at 241.
281 Letter from Grayson to Henry (June 12, 1789), in Veit, Creating at 249. See also Letter from Joseph Jones to Madison (June 24, 1789), in id. at 253 (describing Madison's proposed amendments as well "calculated to secure the personal rights of the people").
282 Madison Resolution (June 8, 1789), reprinted in Veit, Creating at 12.
283 See above, Part III.B.2, at note 225 (discussing differences from Virginia Declaration).
284 12 Madison Papers at 193 (emphasis added); see id. at 194-95; Speech of Madison, reprinted in
Veit, Creating at 80.
285 Compare Speech of Madison, reprinted in Veit, Creating at 80 (discussing "the declaration of rights" of England), with id. at 84 (concluding by describing his proposals "as a declaration of the rights of the people"). In his notes, although apparently not in his speech, he pointed out that the English right to arms was limited to Protestants. 12 Madison Papers at 193-94.
286 See Veit, Creating at 12 (Madison's proposal); id. at 80, 84 (Madison's speech). His separate proposal of what would become the Tenth Amendment was to be placed between Articles 6 and 7, as its own article. Id. at 13-14.
287 The arguable exception, as discussed above in Part II.D.1 regarding the Establishment Clause, was a prohibition on "any national religion." Madison proposed other amendments that did not relate to private rights, such as altering the ratio of representation in the House of Representatives and banning increases of legislator pay without an ensuing election, but he proposed to place these elsewhere in the Constitution. Id. at 12.
288 Letter from Ames to Thomas Dwight (June 11, 1789), in Veit, Creating at 247.
289 Letter from Ames to George R. Minot (June 12, 1789), in Veit, Creating at 247-48. The right of "changing the government" to which Ames referred was a provision, in a separate section of Madison's proposal, affirming the right of the people "to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution." Regarding such usage of the "the people," see Part II.A, above.
290 Philadelphia Fed. Gazette at 2 (June 18, 1789), excerpted in Kates, 82 Mich. L. Rev. at 224 & nn.81-82. The Remarks were reprinted within three weeks in newspapers in Boston (on the front page of a special July 4 issue) and New York. See Stephen P. Halbrook & David B. Kopel, Tench Coxe and the Right to Keep and Bear Arms, 1787-1823, 7 Wm. & Mary Bill Rts. J. 347, 367 (1999).
291 See Letter from Coxe to Madison (June 18, 1789), in Veit, Creating at 252-53; Letter from Madison to Coxe (June 24, 1789), in 12 Madison Papers at 257; see also Veit, Creating at 254 (excerpting Madison's letter).
292 See Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 77 (1984) (noting that author's "search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis").
293 Letter from Nasson to Thatcher (July 9, 1789), in Veit, Creating at 260-61 [sic]; see id. at 309 (brief biography of Nasson).
294 Veit, Creating at 30.
295 Id. at 6, 102-03; see Letter from Madison to Wilson Cary Nicholas (Aug. 2, 1789), in id. at 271 (referring to "the concord" of the committee); Letter from Roger Sherman to Henry Gibbs (Aug. 4, 1789), in id. (another committee member, predicting that committee's proposals "will probably be harmless & Satisfactory to those who are fond of Bills of rights," although noting his desire to place them at the end of the Constitution).
296 See id. at 30. The separate placement of what would become the Tenth Amendment remained unchanged, and Madison's other proposals, noted above, also remained separate.
297 Letter from Rep. Frederick A. Muhlenberg to Benjamin Rush (Aug. 18, 1789), in Veit, Creating at 280 (writing after the first day of debate that involved the arms provision, in which no changes were made, and describing proposed amendments to date as "nearly the same as" the committee "had reported them").
298 "From the Boston Indep. Chronicle," Philadelphia Indep. Gazetteer 2 (Aug. 20, 1789), excerpted in Halbrook, Right to Bear at 45.
299 At the Constitutional Convention, Gerry had bitterly opposed the federal powers over the militia in Article I, Section 8, Clause 16. Madison, Notes of Debates at 513-16 (Aug. 23). Regarding his Anti-Federalist writings during ratification, see Schwartz, 1 Bill of Rights at 464-65, 480-93. He had attended the Massachusetts Convention as an invited observer and helped lead the opposition. Id. at 465. Presumably, therefore, he supported Samuel Adams's proposed amendments, even though he also desired additional ones. See id. at 486-89.
300 Remarks of Gerry (Aug. 17, 1789), reprinted in Veit, Creating at 182.
301 See Veit, Creating at 183-85.
302 See id. at 198-99. The addition may have been an effort to partially satisfy Representative Scott, by ensuring that Congress could at least require conscientious objectors to provide an equivalent. Unlike Gerry, he objected to the exemption because he worried that citizens, rather than Congress, would abuse it, with the result that "you can never depend upon your militia." He added, "This will lead to the violation of another article in the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army." Id. at 198. While this cryptic and elliptical comment conceivably might be construed to suggest a quasi-collective right, its meaning is far from clear, and we find little probative value in it. The Fifth Circuit in Emerson reasonably concluded that Scott's comment "does not plainly lend support to any of the Second Amendment models," 270 F.3d at 248, and the Ninth Circuit in Silveira did not cite it, see 312 F.3d at 1085-86.
303 See Veit, Creating at 117-28 (debate of Aug. 13, 1789); id. at 197-98 (debate of Aug. 19, 1789).
304 Id. at 37-41.
305 "The most prolific and one of the best known of the Anti-Federalist essayists was the Centinel, whose essays appeared in the Philadelphia Independent Gazetteer and the Philadelphia Freeman's Journal and were widely reprinted." 2 Complete Anti-Fed. at 130. He published twelve essays as Centinel Revived. Id.
306 Centinel (Revived), No. 29 (1789), quoted in Emerson, 270 F.3d at 255.
307 The Senate combined provisions (such as in creating what became the First and Fifth Amendments) and rejected House provisions regulating appeals to the Supreme Court; applying religion, speech, press, and criminal-jury protections to the States; and prohibiting violations of the separation of powers. See Schwartz, 2 Bill of Rights at 1145-47 (summarizing changes); compare Veit, Creating at 37-41 (House proposals), with id. at 47-49 (Senate).
308 See Veit, Creating at 39 n.13; Schwartz, 2 Bill of Rights at 1153-54 (Sen. Journal).
309 See Uviller & Merkel, 76 Chi.-Kent L. Rev. at 507 (theorizing that vote on common-defense clause was prompted by desire to avoid either redundancy or the objection that the amendment failed to protect militia service in defense of a State, as opposed to the "common" national defense). The deletion of the troublesome conscientious-objector clause could have been simply because of a desire, as voiced in the House, to leave the matter to Congress's discretion, see, e.g., Remarks of Rep. Benson (Aug. 17, 1789), reprinted in Veit, Creating at 184, without affecting the right one way or the other.
310 One could argue that the definition was considered superfluous. See Schwartz, 2 Bill of Rights at 1145 (observing that Senate in its revisions of the House proposals generally "tighten[ed] up the language of the House version, striking out surplus wording and provisions."); Part II.C.2-4 (discussing meaning of "Militia" at the time).
311 Schwartz, 2 Bill of Rights at 1152 (Sen. Journal).
312 See Veit, Creating at xii; Letter from Madison to Jefferson (Mar. 29, 1789), in id. at 225.
313 Letter from Lee to Henry (Sept. 14, 1789), in id. at 295. The Senate also, like the House, had rejected a proposal to append to what became the Second Amendment a supermajority requirement for peacetime standing armies, a provision to help ensure that Congress would depend on and therefore provide for the militia. Schwartz, 2 Bill of Rights at 1149 (Sen. Journal); see Veit, Creating at 38-39 n.13.
314 Letter from Lee and Grayson to the Speaker of the Virginia House of Delegates (Sept. 28, 1789), in Veit, Creating at 299.
315 See id. at 49-50 (Conference Committee Report and House Resolution); id. at 296-98 (various letters of Sept. 1789, including by Madison, detailing concerns with certain Senate revisions but not mentioning Second Amendment); Schwartz, 2 Bill of Rights at 1171-73 (regarding presidential transmittal).
316 See Schwartz, 2 Bill of Rights at 1171-72 ("[W]e know practically nothing about what went on in the state legislatures during the ratification process" and "[e]ven the contemporary newspapers are virtually silent."); Emerson, 270 F.3d at 255 (without comment, omitting discussion of ratification); Silveira, 312 F.3d at 1086 (same).
317 Schwartz, 2 Bill of Rights at 1171, 1203. One of the two not then ratified was ratified in 1992 as the Twenty-Seventh Amendment, which relates to congressional pay. The other addressed the size of the House.
318 And even if one believes, contrary to the historical record, that Anti-Federalists' concerns about the militia were resolved in their favor, the Anti-Federalists' insistence on the superiority of a citizen militia to a select militia, noted at the beginning of Part III.C, would lead to the understanding of the Amendment's prefatory clause that we set out in Part II.C, an understanding that is, as we explained, fully consistent with the individual-right view of the Second Amendment.
319 See Clyde N. Wilson, Forward, in St. George Tucker, View of the Constitution of the United States, with Selected Writings at viii-ix (1999); Paul Finkelman & David Cobin, An Introduction to St. George Tucker's Blackstone's Commentaries, in 1 Tucker's Blackstone at v-xii; Editor's Preface in id. at v.
320 1 Tucker's Blackstone, Note D, at 300 (ellipsis in original).
322 Id. at 357; see id. at 315-16 (explaining that, whereas in England, "the game-laws, as was before observed, have been converted into the means of disarming the body of the people," and statutes have restricted assemblies, the Constitution will not "permit any prohibition of arms to the people; or of peaceable assemblies by them"); id. at 289 (describing hypothetical law "prohibiting any person from bearing arms" as violating the Second Amendment).
323 2 id. at *143-44 & nn.40-41. See also id. at *145 n.42 (again criticizing game laws).
324 3 id. at *414 n.3; see also, above, Parts III.A (discussing right to arms in England) and III.B.2 (discussing doubts whether the relaxation of English game laws in 1700's succeeded as a practical matter in enabling commoners to keep arms).
325 1 id. at 273. Tucker thought the federal powers in Article I, Section 8, Clause 16, to provide for "organizing" and "disciplining" the militia were exclusive, id. at 180-81, but that States retained "concurrent, though perhaps subordinate" powers to provide for "arming" their militias and "to call them forth when necessary for their internal defence," id. at 182, 183. His only other reference to the Second Amendment in connection with the militia was in a note to Blackstone's discussion of the militia, in which Tucker collected all references in the Constitution to the militia, along with the Third Amendment, Virginia laws, and the federal Militia Act. 2 id. at *409 n.1.
326 See Hardy, 9 Harv. J.L. & Pub. Pol'y at 613. Rawle did agree to be United States Attorney for the District of Pennsylvania. E.g., United States v. Fries, 3 U.S. (3 Dall.) 515, 517 (C.C.D. Pa. 1799).
327 William Rawle, A View of the Constitution of the United States of America 115 (2d ed. 1829; reprint 1970) (font altered; emphasis added).
328 Id. at 125-26.
329 Id. at 126. Regarding Blackstone, see Part III.A above. For Tucker's annotations of some of Blackstone's discussions of improper uses of arms, see 5 Tucker's Blackstone at *126, 142-149, 175. Regarding the Pennsylvania Minority, Adams, and New Hampshire, see Part III.C.1 above.
330 Rawle, A View of the Const. at 153. Significantly, in separately discussing the Militia Clauses of Article I, Section 8, Rawle made no mention of the Second Amendment. Id. at 111-12.
331 Ronald D. Rotunda & John E. Nowak, Introduction, in Joseph Story, Commentaries on the Constitution of the United States xi-xiv (Rotunda & Nowak eds., 1833; reprint 1987) ("Abridgement").
332 Story, Abridgement §§ 980-982, at 696-97.
333 Id. § 984, at 698; see id. §§ 985-1011, at 698-714.
334 Id. § 1001, at 708.
335 Joseph Story, 3 Commentaries on the Constitution of the United States § 1890, at 746 n.1 (1833; reprint 1991). In United States v. Miller, 307 U.S. 174, 182 n.3 (1939), the Supreme Court included this passage (from a later edition) in a string citation.
336 Story, 3 Commentaries § 1891, at 747. In a separate chapter, the full Commentaries also included an extended discussion of the Anti-Federalist charges leveled against the Militia Clauses, including the charge that the federal militia powers would be exclusive (which Story found unpersuasive). Story alluded to the failure of proposals explicitly to protect state militia powers. Id. §§ 1198-1202, at 83-87.
337 Joseph Story, A Familiar Exposition of the Constitution of the United States § 450, at 319 (1840; reprint 1986).
338 Story, Abridgement § 1001, at 708-09.
339 Henry St. George Tucker, Commentaries on the Laws of Virginia 43 (1831).
341 The Debates in the Several State Conventions on the Adoption of the Federal Constitution at xv (Jonathan Elliot ed., 2d ed. 1836; reprint 1987).
342 For additional antebellum commentators, see David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359, 1399-1403, 1435-41; see also id. at 1397-98 (discussing Henry Tucker).
343 Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16-17, 21-22 (1820) (plurality opinion of Washington, J.); see id. at 34-36 (Johnson, J., concurring); id. at 50-53 (Story, J., dissenting). Story dissented on the ground that the militia law granted enforcement authority exclusively to federal courts. Id. at 71-72.
344 12 Ky. (2 Litt.) 90, 1822 WL 1085. The dissenting judge did not issue an opinion. See id. at *4.
345 Id. at *2.
346 The first court to depart from Bliss's holding, the Indiana Supreme Court eleven years later in State v. Mitchell, 3 Blackf. 229, 1833 WL 2617, at *1, did not cite its neighboring court or otherwise explain itself, the entire opinion being as follows: "It was held in this case, that the statute of 1831, prohibiting all persons, except travelers, from wearing or carrying concealed weapons, is not unconstitutional." We discuss the later antebellum cases in the next subpart.
347 See Ky. Const. art. XIII, § 25 (1850), reprinted in 3 Fed. and State Consts. at 1314.
348 Aldridge v. Commonwealth, 4 Va. (2 Va. Cas.) 447, 1824 WL 1072, at *3 (Va. Gen. Ct.).
349 5 Tucker's Blackstone at *175 n.17(7) (listing as among the "offences against the public police, or [e]conomy," the restriction against "any" black or mulatto "keeping or carrying any gun-powder, shot, club, or other weapon," including a "gun"). See also Waters v. State, 1 Gill. 302, 1843 WL 3024 (Md.) (explaining, with regard to free blacks, that "laws have been passed to prevent their migration to this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness.").
350 United States v. Sheldon, 5 Blume Sup. Ct. Trans. 337, 1829 WL 3021, at *12 (Mich. Terr.). See also Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 338 (1825) (invoking right to keep arms to draw same analogy).
351 Johnson v. Tompkins, 13 F. Cas. 840, 850 (C.C.E.D. Pa. 1833) (No. 7,416).
352 13 Tenn. (5 Yer.) 356, 1833 WL 1227.
353 1833 WL 1227, at *1.
354 Id. For more regarding the relevant common law, see the discussion in State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891, at *2-3 (surveying common law and noting "that the carrying of a gun per se constitutes no offence"). See also State v. Langford, 10 N.C. (3 Hawks) 381, 1824 WL 380; 4 Blackstone at *149; William Hawkins, 1 A Treatise on the Pleas of the Crown ch. 63, § 9, at 136 (1724; reprint 1972). An English case that the court cited in Huntly, predating the English Declaration of Rights, had construed a seemingly restrictive medieval statute as only punishing "people who go armed to terrify the king's subjects," not all who go armed. Sir John Knight's Case, 87 Eng. Rep. 75, 76, 3 Mod. Rep. 117 (K.B. 1686). The court recognized that "now there be a general connivance to gentlemen to ride armed for their security," such that violating the statute required riding "malo animo." Id., 90 Eng. Rep. 330, 330, Comberbach Rep. 38.
355 1833 WL 1227, at *1.
356 1 Ala. 612, 1840 WL 229, at *2.
357 1840 WL 229, at *2.
358 Id. at *3.
359 Id. at *5-6.
360 Id. at *6-7; see id. at *1.
361 31 Ala. 387, 1858 WL 340, at *1, 2.
362 1 Ga. (1 Kelly) 243, 1846 WL 1167, at *11. Georgia's constitution did not expressly protect the right to arms. The court alluded to Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833), which held that the Takings Clause of the Fifth Amendment did not apply to the States and reasoned that none of the Bill of Rights did, but rejected it because of the court's own precedent, the Second Amendment's broad, non-restrictive language, and the fundamental importance of the right. 1846 WL 1167, at *9-10.
363 Id. at *8.
364 Id. at *10.
366 Id. at *10, 9.
367 Stockdale v. State, 32 Ga. 225, 1861 WL 1336, at *3. The Texas Supreme Court before the Civil War appears also to have viewed the Second Amendment as applying to the States and including an individual right to own arms and use them for self-defense and perhaps hunting. See Choate v. Redding, 18 Tex. 579, 1857 WL 5009, at *2; Cockrum v. State, 24 Tex. 394, 1859 WL 6446, at *6-8. In the latter case, in which the court rejected a constitutional challenge to a sentencing enhancement for homicide with a bowie-knife, the court did not cite any authority, but the defendant had cited Nunn, Reid, Bliss, and Mitchell. 1859 WL 6446, at *3.
368 5 La. Ann. 489, 1850 WL 3838, at *1; see id. at *2 (discussing self-defense).
369 State v. Smith, 11 La. Ann. 633, 1856 WL 4793, at *1.
370 State v. Jumel, 13 La. Ann. 399, 1858 WL 5151, at *1.
371 21 Tenn. (2 Hum.) 154, 1840 WL 1554.
372 4 Ark. (4 Pike) 18, 1842 WL 331.
373 That change may have been prompted by Nat Turner's 1831 slave rebellion, which created fears of free blacks arming and inciting slaves. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 337-38 (1991).
374 1840 WL 1554, at *3.
375 312 F.3d at 1073.
376 Id. (quoting Aymette, 1840 WL 1554, at *5).
377 1840 WL 1554, at *3; see id. at *2. As noted above in Part III.B.2, in discussing the Massachusetts Declaration of Rights, the phrase "common defense" is not necessarily inconsistent with a right to bear arms for private purposes.
378 1840 WL 1554, at *5. Thus the Ninth Circuit was incorrect in contending that Aymette "reached its conclusion primarily because of" the conscientious-objector provision, rather than the "common defense" language. Silveira, 312 F.3d at 1073. Furthermore, Aymette's reliance on the conscientious-objector provision was not persuasive, as our discussions of the Pennsylvania and Vermont declarations of rights (Part III.B.2) and proposals emerging from the Pennsylvania, Virginia, and North Carolina ratifying conventions (Part III.C.1) showed. See also Part II.B.2 (discussing meaning of "bear arms"). It was common in a single document to refer separately both to the right of individuals to "bear arms" and to exemption of individuals from the duty to "bear" them in the service of the government. In addition, the court's assertion that a hunter could never be said to "bear" arms, quoted above, is open to doubt, given the proposed Virginia law discussed in Part II.B.2 and the Pennsylvania Minority Report (see Parts II.B.2 and III.C.1), and, in any event, says nothing about persons "bearing" arms in self-defense. The court did not cite the decision of its southern neighbor in Reid, which appears to have been decided about six months before; it treated its previous discussion of the right in Simpson as dicta, 1840 WL 1554, at *5-6.
379 See above, Part III.C.2 (discussing conscientious-objector clause in draft of Second Amendment).
380 1840 WL 1554, at *4. As we noted in the introduction of Part II.B, the Ninth Circuit, in reaffirming its collective-right view, did not attempt to reconcile the right to "keep" arms with its view.
381 Id. at *3, *5.
382 See id. at *4 ("the citizens may bear [arms] for the common defence," but "the Legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence") (emphasis added).
383 Id. at *2.
384 Id. at *3-4. Furthermore, even if one might read the court's rejection of an individual right to bear arms in "private defence" as foreclosing any individual right to bear arms, two aspects of the court's reasoning (in addition to its analysis of "bear") leave it open to question. First, the court's account of the English right, see id. at *2, was contrary to the text of the English Bill of Rights and Blackstone's exposition of an individual right to arms for self-defense, and failed to recognize that the individual English right was transplanted to America free of England's aristocratic restrictions, as Tucker, Rawle, Story, and others had recognized and praised. Second, faced with the defendant's provocatively absolute claim regarding the scope of the right, see id. at *1, the court responded with dichotomies between bearing arms by the body of the people for the common defense and "bearing" arms for hypothetical criminal purposes, such as terrifying people. In thus defining the question, the court defined away the well-established third possibility - bearing arms in legitimate self-defense - and overlooked background law prohibiting bearing weapons for the hypothesized purposes. Compare id. at *3-4, with Simpson, 1833 WL 1227, at *1; State v. Huntly, 25 N.C. (3 Ired.) 418, 1843 WL 891; 4 Blackstone at *145-47; Reid, 1840 WL 229, at *3, 5-6.
385 Andrews v. State, 50 Tenn. (3 Heisk.) 165, 1871 WL 3579, at *6. Andrews was the first case in any jurisdiction to cite Aymette regarding the right to bear arms.
386 See id. at *8 ("The Convention of 1870, knowing that there had been differences of opinion on this question, have conferred on the Legislature in this added clause, the right to regulate the wearing of arms, with a view to prevent crime"); id. at *13 ("Ever since the opinions were promulgated, it has been my deliberate conviction that the exposition of the Constitution . . . in Simpson . . . was much more correct than that . . . in Aymette . . . .") (Nelson, J., joined by Turley, J., dissenting in part).
387 1871 WL 3579, at * 3.
388 Id. at *11.
389 Id. at *10 (finding "much of interesting and able discussion of these questions" in Bliss, Reid, and Nunn; explaining that in Reid and Nunn "the general line of argument found in this opinion is maintained" and that the court had been "aided . . . greatly by the reasoning of these enlightened courts"); id. (describing Aymette as "hold[ing] the same general views" as the Andrews court) (emphasis added).
390 Id. at *8 (emphasis added).
391 Id. at *9.
392 Id. at *6-7.
393 Id. at *11.
394 Id. at *13.
395 1840 WL 1554, at *3.
396 1871 WL 3579, at *9. The court elsewhere defined "arms" as those furthering the end of "the efficiency of the citizen as a soldier," id. at *7, and as including not only weapons "adapted to the usual equipment of the soldier" but also those "the use of which may render him more efficient as such," id. at *11. The term had to be "taken in connection with the fact that the citizen is to keep them as a citizen" and therefore included such "as are found to make up the usual arms of the country, and the use of which will properly train and render him efficient in defense of his own liberties, as well as of the State." Id. at *7.
397 Id. at *7; id. at *11. Two judges dissented in part, criticizing Aymette and taking a broader view than the majority based on Simpson, Bliss, Blackstone, and Tucker. Id. at *13-15 (Nelson, J., joined by Turney, J., dissenting in part). They argued that "for their common defense" was equivalent to "in defense of themselves and the State." Id. at *13-14. Similarly, "The word 'bear' was not used alone in the military sense of carrying arms, but in the popular sense of wearing them in war or in peace." Id.
398 E.g., Fife v. State, 31 Ark. 455, 1876 WL 1562, at *3 (summarizing holding and then relying on Aymette and Andrews); State v. Wilforth, 74 Mo. 528, 1881 WL 10279, at *1 (including Buzzard in string citation with Nunn, Jumel, Mitchell, Owen, and Reid, and relying on Reid). Buzzard was first cited in 1872. See State v. English, 35 Tex. 473, 1872 WL 7422; Carroll v. State, 28 Ark. 99, 1872 WL 1104.
399 Buzzard, 4 Ark. 18, 1842 WL 331, at *6.
400 See id. at *6 (equating the two, and adopting a single rule for evaluating restrictions).
401 See id. at *4 (explaining that "the militia, without arms . . . might be unable to resist, successfully, the effort of those who should conspire to overthrow the established institutions of the country, or subjugate their common liberties" and that "the people designed and expected to accomplish this object by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose"); id. at *6 ("The act in question does not . . . detract anything from the power of the people to defend their free state and the established institutions of the country."); see also id. at *2 (expressly equating Second Amendment right with rights in First); id. at *7 (noting that Reid and Mitchell had upheld similar laws notwithstanding constitutional provisions expressly protecting bearing arms in self-defense). As in Aymette, the court was faced with an absolute claim that the right was subject to no restrictions, and responded similarly. See id. at *3, *5.
402 See Carroll, 1872 WL 1104, at *2 (upholding conviction for carrying deadly weapon concealed and explaining Buzzard as holding that "a constitutional right to bear arms in defense of person and property does not prohibit the legislature from making such police regulations as may be necessary for the good of society, as to the manner in which such arms shall be borne"; adding that a "citizen" may not "use his own property or bear his own arms in such way as to injure the property or endanger the life of his fellow citizen") (emphases added); Fife, 1876 WL 1562, at *3, 4 (restating Buzzard's holding, and upholding conviction for carrying pistol by construing statute only to apply to pistol that "is usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels, and brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and necessary for 'the common defence'"); Wilson v. State, 33 Ark. 557, 1878 WL 1301, at *2 (reversing conviction for carrying side arms, where trial court had refused jury instruction to acquit if pistol was "army size . . . such as are commonly used in warfare"; citing Fife and Andrews and explaining that "to prohibit the citizen from wearing or carrying a war arm, except upon his own premises or when on a journey . . . , or when acting as or in aid of an officer, is an unwarranted restriction upon his constitutional right to keep and bear arms") (emphases added).
403 1842 WL 331, at *7 (Dickinson, J., concurring). See also Kopel, 1998 BYU L. Rev. at 1425 ("The Buzzard concurrence's assertion that the right to arms was not individual vanished from American case law for the rest of the nineteenth century.").
404 1842 WL 331, at *7 (Dickinson, J.); see id. at *10 ("The act . . . does not, in my opinion, conflict with any of the powers of the General Government.").
405 Id. at *7, 9. It is unclear what significance he gave to the state constitution's provision. See id. at *9.
406 Id. at *8.
407 Id. at *10 (Lacy, J., dissenting).
408 Id. at *14. See also id. (arguing that the right has at times "been the only means by which public liberty or the security of free States has been vindicated and maintained").
409 Id. at *10.
410 Id. at *12-14.
411 See, e.g., Laws of Miss. ch. 23, § 1, at 165 (enacted Nov. 29, 1865), reprinted in Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, at 2 (1998). See generally Halbrook, Freedmen at 2-3, 5, 8-12, 15-16, 18-20, 22-23, 26-32, 34-37 (collecting reports of army and Freedmen's Bureau officers to President and Congress, petitions to Congress, and other public materials documenting attempts in former Confederacy in 1865 and 1866 to disarm blacks, including through legislation and by militias).
412 Cong. Globe, 39th Cong., 1st Sess. 474 (1866). See also id. at 478 (Sen. Saulsbury, lamenting this effect of the Act). Regarding Trumbull, see Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 32 (2d ed. 1997).
413 Cong. Globe at 1838-39 (Rep. Clarke); id. at 1266 (Rep. Raymond). See also id. at 1629 (Rep. Hart, explaining that Act would guarantee to free blacks "[a] government . . . where 'no law shall be made prohibiting the free exercise of religion'; where 'the right of the people to keep and bear arms shall not be infringed'").
414 Id. at 1182.
415 Id. at 2765 (Sen. Howard).
416 See Halbrook, Freedmen at 36 (collecting excerpts).
417 Berger, Government by Judiciary at 30, 30-39, 53-54. Berger does not specifically mention the right to keep and bear arms. See, e.g., id. at 166-69 (addressing Sen. Howard's statement but omitting his listing of rights).
418 Section 1 of the Civil Rights Act declares all those born in the United States to be citizens, grants "the same right, in every State and Territory in the United States . . . as is enjoyed by white citizens" with regard to certain enumerated aspects of property, contracting, and lawsuits, and guarantees "full and equal benefit of all laws and proceedings for the security of person and property." 14 Stat. 27 (1866). In light of Blackstone's understanding and the context of the black codes, any laws regarding the ability to keep or bear arms would presumably be "laws . . . for the security of person and property" and therefore would need to be equal for all citizens regardless of color.
419 Act of July 16, 1866, § 14, 14 Stat. 173, 176 (emphasis added). The President's reasons for his veto did not involve any disagreement with Congress regarding this right. See Veto Message (July 16, 1866), reprinted in 8 A Compilation of the Messages and Papers of the Presidents 3620 (James D. Richardson ed., 1897).
420 Act of Mar. 2, 1867, § 6, 14 Stat. 485, 487. The President did inform the House that he was signing under "protest" because this provision, and another to which he objected, were included in an essential appropriation bill. See Letter to the House of Representatives (Mar. 2, 1867), reprinted in 8 Messages and Papers at 3670. Regarding the militia provision, he objected that it "denies to ten States of this Union their constitutional right to protect themselves in any emergency by means of their own militia." It may be that in his constitutional objection he had in mind Article I, Section 10's implicit recognition of the prerogative of States to defend themselves with their militias in cases of invasion or imminent danger. See Part II.D.2 above (discussing ways in which original Constitution recognizes that States will have and be able to use militias).
421 The Senate debate is summarized from the Congressional Globe in Halbrook, Freedmen at 68-69.
422 See id. at 69 ("Astonishingly, while still waiving the bloody shirt and depriving Southerners of suffrage, Republicans were unwilling to deny the right to have arms to ex-Confederates."); Nelson Lund, Book Review, Outsider Voices on Guns and the Constitution, 17 Const. Comm. 701, 713 (2000) (reviewing Halbrook) ("This incident perfectly illustrates why the Second Amendment had been adopted in the first place.").
423 See Kates, 82 Mich. L. Rev. at 243. Among Cooley's many works was to prepare the fourth edition of Story's unabridged Commentaries, published in 1873.
424 Thomas Cooley, General Principles of Constitutional Law in the United States of America 271 (1880). Cooley cited 1 Tucker's Blackstone at 300, which praises the right in the Second Amendment as "the true palladium of liberty" and, paralleling Blackstone, ties it to the natural "right of self defence." See above, Part IV.A.
425 Rawle, View of the Const. at 125, discussed above in Part IV.A.
426 He added, citing Andrews (which had not interpreted the Second Amendment), that the Amendment protected the keeping of arms "suitable for the general defence of the community against invasion or oppression," whereas "the secret carrying of those suited merely to deadly individual encounters may be prohibited." Cooley, General Principles at 271-72.
427 Id. at 88-89.
428 See Kopel, 1998 BYU L. Rev. at 1462.
429 Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 35-36 (1868).
430 Id. at 350; see id. at 295 (chapter title). Miller cited this section. See 307 U.S. at 182 n.3 (citing "Cooley's Constitutional Limitations, Vol. 1, p. 729," likely the 8th edition, published well after Cooley's death).
431 Cooley, Constitutional Limitations at 18.
432 See Presser v. Illinois, 116 U.S. 252, 264-65 (1886); see also United States v. Cruikshank, 92 U.S. 542, 553 (1876); Logan v. United States, 144 U.S. 263, 286-87 (1892); Maxwell v. Dow, 176 U.S. 581, 597 (1900). As noted above in Part I, the federal Government did not regulate private firearms until 1934.
433 165 U.S. 275, 281-82 (1897).
434 83 P. 619, 620 (Kan. 1905).
435 See id. As shown in Parts III.B.2 and III.C.1, however, there was nothing unusual in combining such declarations with an individual right to arms.
436 See 83 P. at 620. The Fifth Circuit in Emerson criticized Salina, to the extent that it was endorsing a quasi-collective-right view, as "constru[ing] the constitutional provision as saying no more than that the citizen has a right to do that which the state orders him to do and thus neither grants the citizen any right nor in any way restricts the power of the state." It found such a criticism "especially applicable to the theory that such state constitutional provisions grant rights only to the state," noting that Salina did "not appear even to recognize, much less attempt to justify, the anomaly of construing a constitutional declaration of rights as conferring rights only on the state which had them anyway." 270 F.3d at 231 n.30 (emphasis added). In the context of the right to keep and bear arms in the federal Constitution, the quasi-collective-right view appears to amount to the right of a militiaman, through a private cause of action (or defense), to act as an agent for the interests of the State to vindicate its power to establish and maintain an armed and organized militia such as the National Guard. See, e.g., United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001).
437 Strickland v. State, 72 S.E. 260, 262 (Ga. 1911). For additional discussion of City of Salina, see Kopel, 1998 BYU L. Rev. at 1510-12.