The Right to Keep and Bear Arms:

ALBANY LAW REVIEW
Vol. 31, Page 74
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

THE RIGHT TO KEEP AND BEAR ARMS: A NECESSARY CONSTITUTIONAL GUARANTEE OR AN OUTMODED PROVISION OF THE BILL OF RIGHTS?

The Bill of Rights of the federal constitution contains three amendments which have received little or no judicial attention.[1] One of these, the second amendment, provides: "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The purpose of this comment is to study the history and meaning of this constitutional provision as well as the extent of the right conferred by these words. With recent developments, the second amendment will become increasingly important in determining the constitutionality of much future regulatory legislation.

HISTORY

Although firearms were not known until the fourteenth century,[2] the foundations of this amendment can be traced to writings of the ancient Greek and Roman scholars who recognized the dangers of mercenaries and standing armies and the necessity of a "militia"[3] composed of individual citizens bearing arms.[4] Throughout history, civilized men have realized that the defense of their homeland must be effectuated by individual citizens and have recognized the right to keep and bear arms for this purpose.[5] Inasmuch as the first ten amendments created no new rights but merely recognized preexisting rights inherited from England, an examination of English law is necessary to ascertain the basis of this amendment.[6]

The concept of a militia first appeared in England during the reign of the Anglo-Saxon King Alfred.[7] The freeman had not only the right but [Page 75] the duty to bear arms for the defense of England. The Normans introduced -knight service," the typical tenure of feudalism. However, the king soon desired a professional army and encouraged instead a military payment known as scutage which was used to hire a professional army of mercenaries,[8] This practice resulted in a provision of the Magna Charta calling for the removal of foreign-born mercenaries from the kingdom.[9] With the introduction of scutage, however, the personal right of the people to bear or own arms was not forfeited.

With the ascent of the Stuarts to the throne, the English kings again came to rely heavily on mercenaries, James II maintaining a considerable body of standing forces in times of peace to aid him in his battles against Parliament and to subdue the people.[10] This was a prime factor leading to the Declaration of Rights of William and Mary which became law as the English Bill of Rights.[11] This document both outlawed the practice of keeping a peacetime standing army and guaranteed to the Protestant subjects the right to lawfully bear arms for their defense.[12]

In the eighteenth century, Blackstone recognized three classes of rights: personal security, personal liberty, and private property.[13] In obtaining and protecting these rights, Blackstone enumerated as one method the bearing of arms for defense "suitable to [the] condition and degree [of the subject] and such as one allowed by law." [14] Blackstone saw the evils of peacetime standing armies and advocated a militia composed wholly of Englishmen serving for a limited time.[15]

One of the immediate causes of the Revolutionary War was the attempted seizure by the British of the colonists' arms at Concord. In the subsequent Declaration of the Causes and Necessity of Taking Up Arms of July 6, 1775, the colonists stated that one cause of the war was the surrender by the Boston inhabitants of their arms.[16]

Many of the early constitutions of the American states guaranteed the right to bear arms. Some of them secured to the people this right for the [Page 76] defense of themselves and the state[17] while others qualified it with the concept of a militia,[18] as did the Articles of Confederation.[19]

The authors of the federal constitution placed great emphasis on the need for a militia to keep the military under civilian control and diffused the war powers throughout the government structure.[20] Considering the suspicion which the colonial government had with large standing armies coupled with the parallel developments of the militia with the right and duty to keep and bear arms, it was not unusual that the assurances of the second amendment combined these two concepts into a single provision.

This concern was subsequently reflected by an eminent Supreme Court Chief Justice almost half a century later when he recognized that arms bearing by the populace was a crucial ingredient of a free country.[21] Such a right provides a strong check against arbitrary power in the hands of a few and prevents the establishment of a military dictatorship.

CONSTRUCTION BY THE FEDERAL COURTS

Judicial construction of this amendment has been sparse. So far, on only four occasions has the United States Supreme Court dealt directly with the second amendment.

In the early case of United States v. Cruikshank,[22] the Court declared that the right of the people to bear arms for a lawful purpose is not a right created by the constitution but one that exists independent of that instrument. The Court further stated that the constitutional prohibition against infringement of this right forbids only infringement by Congress. Protection of whatever rights the people have against state infringement was held to be dependent upon state legislation.[23]

Ten years later, in Presser v. Illinois,[24] the Court departed to a degree [Page 77] from its absolutist approach. This case upheld as constitutional a state statute forbidding other than regularly organized volunteer militia from associating together as military organizations, or drilling or parading with arms without a license.

After reiterating that the second amendment limits only the federal government, the Court declared that since ". . . all citizens capable of bearing arms constitute the reserve military force or militia of the United States as well as the states, and in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful source for maintaining the public security and disable our people from performing their duty to the general government.[25]

In Miller v. Texas[26], the Court, in sustaining a state statute prohibiting the carrying of dangerous weapons, cited Cruikshank in holding again that the second amendment has no application to the states.[27]

As dictum in a later case, the Court held that the Bill of Rights was not intended to set forth any new principles of government, but simply to ". . . embody certain guaranties and immunities which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, [i.e. laws prohibiting the carrying of concealed weapons] which continued to be recognized as if they had been formally expressed."[28]

In United States v. Miller,[29] the Supreme Court was for the first and only time faced with the issue of the constitutionality of a federal firearms regulation and was forced to at least attempt a determination of the nature and extent of the second amendment's prohibitions against congressional infringement.

The Court declared unequivocally the obvious purpose of the second amendment was to support and effectuate the militia and ". . . must be interpreted and applied with that end in view." It further held that if a weapon does not bear some reasonable relationship to the preservation or efficiency of a well regulated militia, the amendment would not affect the power of Congress to prohibit the keeping and bearing of such an instrument. How- [Page 78] ever, if such a relationship exists, the Court infers the federal government cannot impose undue restrictions on its possession and use.[30]

Soon after Miller, the lower federal courts had occasion to further construe the amendment. The Court of Appeals of the Third Circuit affirmed a conviction under the Federal Firearms Act, resting its decision not only on the authority of Miller but also upon the broader ground of the police power.[31]

The court recognized that weapon bearing has never been an absolute right under the common law, referring to the Statute of Northampton of 1328 which , although it predated the firearm, was an early regulation on the carrying of weapons.[32] The court referred to the numerous state court decisions sustaining restrictions on weapons and declared that police regulations which have a valid public purpose and reasonable classification do not infringe upon the preservation of a well-regulated militia.[33]

In a First Circuit case decided one month later,[34] the constitutionality of the Federal Firearms Act was again challenged and upheld. The Court of Appeals found the ruling of the Miller case already outdated due to the advent of the then "Commando Units" in which almost any modem weapon has military potential and might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day. The court thought that the Miller rule was not meant to apply to all cases, but considering the many variable factors bearing on the question, each case arising under the second amendment must be decided upon its own facts. The court concluded that to decide otherwise would be to foreclose federal regulation on all but a small number of weapons and make the prohibition an absolute one. The court also said that the Miller rule would prohibit Congress from regulating the possession of distinctly military arms which have no legitimate use to a private citizen not a present or prospective member of a military unit.[35]

The Court of Appeals is obviously correct in its analysis of the Miller rule insofar as it is inconceivable that the Supreme Court intended to deny Congress the control over firearms and other weapons which have no legitimate and useful purpose to a private citizen. The arms that the Miller case refers to must be given a technical meaning and construed to be only the normal ones that a citizen of today would be expected to keep and [Page 79] bear for the common defense or to maintain the public security, such as rifles, shotguns, and certain types of handguns. The term "arms" cannot be applied to such implements as brass knuckles, dirks, machine guns, hand grenades, mortars, and the like.

The Supreme Court has consistently avoided reaching the basic constitutional questions involved in the second amendment and the federal courts have disposed of all cases arising thereunder on such independent grounds as matters of proof.[36] Since the nature and scope of the right to bear arms has not yet been clearly ascertained, the result of any future cases arising under the second amendment is uncertain.

APPLICABILITY OF THE SECOND AMENDMENT TO THE FOURTEENTH

The fourteenth amendment of the federal constitution states: "Nor shall any state deprive any person of life, liberty or property without due process of law." This proposition has been the topic of a changing concept and the basis of much judicial dispute. In the past, it was elementary that the first ten amendments of the federal constitution did not operate upon the states.[37] In recent years, this concept has been so eroded that today it is without great significance. Many Supreme Court Justices today adhere to the increasingly popular doctrine of selective incorporation by which particular but not all provisions of the Bill of Rights are absorbed into the due process clause.[38] Mr. Justice Brennan is one advocate of the view that the entire federal standard is to be incorporated once it is decided the provision is within the meaning of the due process clause.[39]

Mr. Justice Black, who with Mr. Justice Douglas advocates the total incorporation of the Bill of Rights,[40] has stated that ". . . although the Supreme Court has held [the second amendment] to, include only arms necessary to a well regulated militia, as so construed, its prohibition is absolute."[41]

Other justices favor the "basic core" doctrine which does not incorporate the federal standards when a provision of the Bill of Rights is incorporated but applies only the basic core of the provision to the states.[42] Some Justices still adhere to the "fundamental fairness" test, a concept which does not [Page 80] require reference to the Bill of Rights but by which many provisions of that instrument as well as any other fundamental unenumerated rights have been applied to the states.[43]

Regardless of which interpretation is relied upon, most of the rights of .the first eight amendments have been already held to be included in the fourteenth.[44] The right to keep and bear arms is a basic right which long antedated the adoption of the federal constitution and without which the other rights-guaranteed by our constitution could not be effectively assured. In admitting that there are certain well-recognized exceptions to the right to bear arms, the Supreme Court has perhaps by negative inference admitted that there exists a fundamental right to which these exceptions are taken.[45] However, since the Court has not yet found it necessary to pass directly on this issue, it cannot be said that it would expressly recognize such a right.

An argument that the right to bear arms is a collective right of the people as a whole and therefore not within the purview of the fourteenth amendment is not substantial. The proponents of total incorporation of the Bill of Rights are committed to their views, while the advocates of selective incorporation and the "fundamental fairness" test have never implied that because rights may be construed as collective they are not entitled to protection against state infringement. If the Supreme Court is in the future to avoid holding the second amendment to be included in the fourteenth, it would have to reverse its present trend and return to its former interpretation of the Bill of Rights.[46]

THE RIGHT TO KEEP AND BEAR ARMS UNDER THE STATE CONSTITUTIONS

In the event the Supreme Court continues to hold that the second amendment is not included in the due process. clause of the fourteenth amendment and obligatory upon the states, any further state legislation will still be restricted by various state constitutions and statutes which contain language similar to the second amendment. In any event, these provisions will supplement the federal constitution and must be considered.

Today, the constitutions of thirty-five states also guarantee the right to [Page 81] bear arms.[47] New York is not included, but the omission is provided for by statute.[48] In all these constitutions, the right is restricted or conditioned by the concept of a militia, or as in twenty-eight states, to the defense of the state or person. In all but thirteen states which refer to the "individual," the right is qualified as pertaining collectively to "the people" or "the citizens." Only three states exactly reproduce the terms of the second amendment, but two others repeat the words with additions. Some of the state constitutions reserve the power of the state legislatures to restrict arms bearing. Fifteen states either expressly exclude concealed weapons from protection or reserve the right to regulate the manner of carrying or bearing arms. In the absence of an express power, all states have subjected this right to the police power, and the courts have upheld all reasonable and appropriate regulations on the possession, use, pledging, and sale of firearms in order to protect the safety and peace of the citizenry.[49]

The state courts in construing cases under the various constitutional provisions have arrived at divergent and conflicting opinions as to the nature and extent of the guarantee.

In the case of City of Salina v. Blaksley,[50] the supreme court of Kansas went so far as to hold that individual rights were not protected by the state constitutional provision which states: "the people have the right to bear arms for their defense and security." The court decided that only to the people collectively as members of legitimate military organizations is the right guaranteed and then only to weapons of the type used in civilized warfare.[51] However, in the remaining cases, the decisions of the courts seem to follow two general lines of reasoning, due in part to the express language of the particular constitutional provision.

The vast majority of states have taken the view that individuals possess the right to bear arms subject to restrictions on the manner of carrying certain weapons or prohibitions against carrying weapons concealed or of a particular character. In states where the right to keep and bear arms is connected with the necessity for a well regulated militia or the common [Page 82] defense, the courts have strictly construed the constitutional provisions.[52] The courts have held that once a weapon is proved to be one adapted to civilized or modern warfare, the right of the individual citizen to purchase, keep, and use such an arm for the ordinary purposes and in the ordinary modes for which it is adapted (i.e. to familiarize and train the citizen with its use so he may be more efficient and skillful in time of war and to maintain the public security and defense) is a right granted by the constitution and cannot be prohibited or infringed, subject to reasonable regulations as to mode, manner, time, and place of carrying so as to protect the public and prevent crime. Although the decisions differ slightly, the courts have generally held the arms protected are the usual arms of the citizen which include all rifles, shotguns, and the larger pistols such as the types used by the military as sidearms. If the weapon is not adapted to civilized warfare or the common defense, the legislature would have the power to prohibit its use and possession.[53]

Other states have recognized either a more absolute constitutional right or an inherent right in the citizen to keep and bear arms limited only by the reasonable exercise of the police power of the state. The supreme court of Alabama held that the right of the citizen to bear arms in defense of himself and the state as granted by the constitution did not divest the legislature of the power to enact such regulations as were necessary to the public safety.[54] However, any statute which under the pretense of regulating amounted to a destruction of the right or which required arms to be so borne as to render them wholly useless for defense purposes would clearly be unconstitutional.[55]

The Idaho constitutional provision that "the people have the right to keep and bear arms for their security and defense" was construed by that state's supreme court to allow the legislature to prohibit the carrying of concealed deadly weapons but would forbid it the power to prohibit the carrying of firearms by citizens in any other manner.[56]

The supreme court of North Carolina interpreted its guarantee that "the right of the people to keep and bear arms shall not be infringed," to [Page 83] allow the legislature the power to prohibit the carrying of concealed weapons and those easily concealed and also the bearing of deadly weapons when intoxicated or in a place of public assembly and in a manner calculated to inspire terror.[57] However, the ordinary private citizen was granted the right to keep and bear arms in the nature of rifles, shotguns, and the larger pistols subject only to the above restrictions and to deprive him of this right would be to infringe upon his constitutional guarantees.[58]

In Michigan, the constitutional guarantee that "every person has the right to bear arms for the defense of himself and the state," means that all persons, alien or citizen, could keep and bear arms for the legitimate defense of person and property.[59]

Under this line of cases, the sole question before the court is whether the particular regulation is within the police power having for its object the protection of the public peace and safety. If this is conceded, the only issue then arising is whether the means employed are reasonable and appropriate to the end to be achieved.

Regardless of which of the above interpretations is considered, the states almost unanimously recognize the right of the citizens to keep and bear arms subject to reasonable restrictions and have considered absolute prohibitions on this right to be unconstitutional.[60]

FEDERAL LEGISLATION

Legislation on firearms has been predicated upon the power of Congress to regulate interstate commerce and to levy and collect taxes. Early statutes were ineffective,61 leading to the adoption of the National Firearms Act of 1934 which is based solely on the tax power and enforced by the Internal Revenue Service.[62] Its provisions require registration of firearms [Page 84] that have little or no value (except to criminals), any weapons not so registered becoming contraband. Their commerce as well as their sale is also regulated.[63] In 1938, the Federal Firearms Act regulating interstate traffic in firearms and ammunition was enacted.[64] This act calls for the licensing of all dealers as well as prohibiting the transportation of stolen weapons and their shipment or receipt by convicted felons, those indicted for felonies, and fugitives from justice. However, violations arise from the operation of the licensee or the criminal status of the person involved and not by the mere possession of a firearm.[65]

Although many proposed bills regulating firearms have been introduced into Congress since the passage of the Federal Firearms Act, none have passed. At the present time, there is much Senate debate over the controversial bill sponsored by Senator Thomas J. Dodd (D.-Conn. ).[66] This bill as now written would prohibit the interstate shipment and sale of handguns, except between federally licensed manufacturers, dealers and importers. Rifles and shotguns would still be obtainable by mail to all but felons and those under eighteen, but the potential purchaser would have to fill out an affidavit and have it notarized by the highest local law [Page 85] enforcement authority in his community. The act would ban the sale of handguns to those under twenty-one and other firearms to those under eighteen. Retail dealers licensed by the Secretary of the Treasury would be subject to record-keeping requirements. The act would also permit the Secretary to curb the importation of large caliber weapons and those not suitable for sporting purposes. The sale of handguns by dealers to nori-residents of his state is also prohibited. The proponents of the bill stress that it is not intended to interfere with the legitimate use of firearms by sportsmen but is designed to assist the states in enforcing their own firearm laws and regulations. It is particularly aimed at preventing minors from obtaining mail order weapons without the consent of their parents and to assist in keeping firearms out of the hands of criminals and mental defectives.[67]

CONCLUSION

The immediate question is whether or not the proposed legislation will accomplish its stated objectives, there appearing to be little question as to its constitutionality.[68] Although the mail order traffic in firearms is a serious problem and must be closely regulated, it is doubtful that this new bill will in practice be any more effective than existing laws which are potentially adequate but not now strictly enforced. Any legislation, federal or otherwise, that unreasonably infringes upon the purchase, possession, or use by individuals of legitimate firearms must be struck down in its inception as an undue restraint on the right to bear arms. Since an absolute ban on the possession and use of all firearms by the citizens of the United States and the several states would definitely be unconstitutional under the present interpretation of the second amendment, a point must be reached where in the exercise of the police power by the states or federal government, a regulation would be held to be an undue restraint on the right to keep and bear arms. Legislation that would in substance if not in form deny the citizen reasonably free access [Page 86] to arms of the type subject to protection would be unconstitutional as an infringement under the second amendment.

Since neither Congress nor the state legislatures have as of yet attempted to prohibit or unduly restrict the right of the citizen to keep and bear arms of the type protected,[69] at best one can only speculate as to the scope and extent of the right. However, it seems safe to conclude under the federal and state decisions that today the individual citizen generally has an unqualified right to keep rifles, shotguns, and the larger pistols. The right to bear such arms is not unqualified and the legislature can prescribe reasonable limits on their use and possession. The carrying of concealed weapons may be absolutely prohibited and if allowed, it is a privilege revocable by the authorities at any time. The legislature can also limit the place, mode and manner in which firearms may be borne, forbidding their use or possession in a place of public assembly and other places where they may reasonably endanger the public safety, and by such persons as minors, felons, and those mentally incompetent.[70] It is difficult to see how such regulations would injure the effectiveness of a well regulated militia or impare the common defense.

The concept of a national or state registration of firearms would not be an infringement of the right to keep and bear arms, nor would universal licensing requirements. It is well settled that in the exercise of the police power to regulate, a state (or the federal government) also has the power to license.[71] However, since the citizen has a right and not merely a privilige to own or possess a legitimate firearm, the burden of proving due cause for rejection of a license must rest with the issuing [Page 87] authorities, not on the applicant. To, hold otherwise would be to place a prior restraint on the access to a legitimate firearm and infringe upon the constitutional guarantee. There must also exist an opportunity for a hearing as a matter of right and provisions for judicial review, both essential elements of due process.[72]

The theoretical goal of all firearm legislation is to obtain the maximum control over the unlawful use of these weapons while preserving to the law abiding citizen their availability and use. A firearm is not dangerous per se but only potentially so, becoming dangerous when in the hands of those who would use it recklessly or illegally. Easily concealed weapons and those attractive to criminals should be closely regulated and applicants for licenses to own or carry such weapons should be carefully investigated.

The most equitable solution, however, would seem to be the rewording and clarification of existing laws, especially those regulating the mailing and shipment of weapons and ammunition. Reasonable amendments to these laws should be enacted, primarily ones prohibiting the sale or delivery of a firearm to minors without parental authorization.[73] Strict enforcement of such laws would do much to keep arms out of the hands of minors, criminals, and those mentally defective without especially penalizing the law abiding citizen and honest dealer. It is the irresponsible dealer who is one of the primary causes of weapons falling into the hands of criminals and it is the dealer and criminal who should be subject to stringent penalties for the unlawful use of the weapons, not the people.[74]

Crimes involving firearms are primarily a problem of the larger cities and it is with this in view that amendments to existing laws should be enacted. Local ordinances or state laws would be much more effective in combatting the unlawful use of firearms in the cities and it is not necessary to enact highly restrictive nationwide legislation to control localized problems.[75]

Although the federal and state legislatures should regulate firearms, they must respect the right of the people to keep and bear arms for lawful purposes. To deny this right is to infringe upon the guarantees, of the state and federal constitutions and the liberties of the people.

RICHARD F. RISELEY, JR.

1. These amendments are, the second, the third, which has never been judicially construed, and the ninth which has only recently been judicially applied in recognition of any right.

2. The first record of a cannon was in 1326. Hand firearms were known by 1350, but they were primitive and ineffective, not becoming efficient until the late fifteenth century.

3. The Militia comprised all males physically capable of acting in concert for the common defense. United States v. Miller, 307 U.S. 174, 179 (1939). The concept of a militia is not obsolete, the constitutions of various states still providing for the maintenance of a militia. The N.Y. CONST. art. xii, § 1, provides that "The defense and protection of the state and of the United States is an obligation of all the persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia." Adopted by the people on Nov. 6, 1962, eff. Jan. 1, 1963.

4. See PLATO, LAWS viii: 829 (Jowett Transl.) ARISTOTLE, POLITICS, Book VI, Chapter 7.

5. See ROUSSEAU, DISCOURSE ON POLITICAL ECONOMY, (38 GREAT BOOKS 380); MACHIAVELLI, THE PRINCE, Chapter XII (23 GREAT BOOKS 18); SMITH, THE WEALTH or NATIONS, Book V, Chapter 1, Part 1, (39 GREAT BOOKS 308); THE FEDERALIST PAPERS No. 29 (Hamilton); THE FEDERALIST PAPERS No. 41 (Madison); ADAMS, A DEFENSE OF THE CONSTITUTION 392 (1787 ed.).

6. Robertson v. Baldwin, 165 U.S. 275, 281-85 (1897).

7. 2 BLACKSTONE, COMMENTARIES 409.

8. The system of scutage was developed by the Assize of Arms of Henry II ( 118 1). See McKECHNIE, MAGNA CHARTA 243 (2nd ed. N.Y. 1958). The Assize of Arms and the Statute of Winchester also contained provisions which defined the arms that all free men were required to carry and all such persons were obliged to pursue and apprehend criminals when the alarm was given. See HOLDSWORTH A HISTORY OF ENGLISH LAW, Vol. I, p. 294 (7th ed. 1956).

9. MAGNA CHARTA, CHAPTER 51 (original) (June 15, 1215). See McKECHNIE, op. cit. supra note 7 at 447.

10. The FEDERALIST PAPERS No. 26 (Hamilton),

11. 1 William and Mary Ch. 2, 1689.

12. ENGLISH BILL OF RIGHTS, § § 6, 7; 1 WILLIAM AND MARY c. 6, 7; Corbett, Parl. Hist. 110; 1 BL. COMM. 143, 144.

13. 1 BLACKSTONE at 69.

14. Id. at 143-144.

15. Id. at 408, 414.

16. SOURCES op OUR LIBERTIES 19 (Perry ed. 1959).

17. PA. CONST. art. xiii (1776); VT. CONST. art. xv (1777).

18. VA. CONST. § 13 (1776); N.C. CONST. art. xvii (1776); MASS. CONST. art. xvii (1780).

19. ARTICLES OF CONFEDERATION art. 6, para. 4 (1781). The Articles of Confederation did not provide for raising a central army or armed force in time of emergency.

20. See Warren, The Bill of Rights and the Military, 37 N.Y.U.L. REV. 181, 183-185 (1962). See also THE FEDERALIST PAPERS No. 29 (Hamilton); FORD, PHAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES (N.Y. 1888); BLOOM, HISTORY OF THE FORMATION OF THE UNION UNDER THE CONSTITUTION (U.S. Constitutional Sesquicentennial Commission 1940).

21. 2 STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 609 (1855 ed.). But see POUND, DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 91. Dean Pound felt that the second amendment is an error in American constitutional history. For a much more complete and detailed history of the second amendment, see Feller and Gotting, The Second Amendment: A Second Look, 61 NW. U.L. REV. 46 (1966); Hayes, The Right to Bear Arms, A Study in Judicial Misinterpretation, 2 WM. AND MARY L. REV. 381 (1960).

22. 92 U.S. 542 (1875).

23. Id. at 553.

24. 116 U.S. 252 (1886).

25. Id. at 265 (dictum).

26. 153 U.S. 535 (1894).

27. Id. at 538.

28. Robertson v. Baldwin, 165 U.S. 275, 281-282 (1896).

29. 307 U.S. 174 (1939). This case sustained the National Firearms Act of 1934 to the extent that it imposed limitations on the use of a sawed-off shotgun. Cf. United States v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935).

30. Id. at 178. The Court never clearly described what it considered the militia to be at the present time.

31. United States v. Tot, 131 F.2d 261 (3rd Cir. 1942) rev'd on other grounds, 319 U.S. 463 (1943).

32. 2 EDWARD HI c. 3; Bishop, Stat. Crimes, H 783, 784 (3rd ed); 4 BL. Comm. 149. It had been held in England that "going armed with unusual or dangerous weapons to the terror of the people, was an offense at common law." Knight's Case, 3 Mod. 117, 87 Eng. Rep. 75 (K.B. 1686).

33. Id. at 266.

34. Cases v. United States, 131 F.2d 916 (1st Cir. 1942).

35. Id. at 922.

36. United States v. Miller, 307 U.S. 174 (1939); Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Tot, 131 F.2d 261 (3rd Cir. 1942).

37. United States v. Cruikshank, 92 U.S. 542 (1875) and a great number of other cases.

38. See Ohio ex rel. Eaton v. Price, 364 U.S. 263, 274-276 (1960). See generally Henkin, Selective Incorporation in the Fourteenth Amendment, 73 YALE L.J. 74 (1963).

39. See Cohen v. Hurley, 366 U.S. 117, 154 (1961) (dissenting opinion).

40. See Gideon v. Wainwright, 372 U.S. 335, 346 (1963) (concurring opinion); Adamson v. California, 332 U.S. 46, 74-75 (1947) (dissenting opinion).

41. Black, The Bill of Rights, 35 N.Y.U.L. REV. 865, 873 (1960).

42. See e.g., Pointer v. Texas, 380 U.S. 400, 409 (1964) (concurring opinion); Adamson v. California, 332 U.S. 46, 66-67 (1947) (concurring opinion); Palko v. Connecticut, 302 U.S. 319, 327-28 (1937). See Henkin, supra note 37, at 80-81.

43. See e.g., Palko v. Connecticut, 302 U.S. 319, 338 (1937); Snyder v. Massachusetts, 291 U.S. 97, 105 (1933); Powell v. Alabama, 287 U.S. 45, 67 (1932); Gitlow v. New York, 268 U.S. 652, 666 (1925).

44. See e.g., Pointer v. Texas, 380 U.S. 400 (1964); Mapp v. Ohio, 367 U.S. 643 (1961); Gitlow v. New York, 268 U.S. 652 (1925).

45. Robertson v. Baldwin, 165 U.S. 275, 281-282 (1896).

46. It should also be noted that violations of the second amendment may also violate inherent rights protected by, the ninth amendment such as the right of self-preservation and the right to possess and protect property. See Comment, 30 ALBANY L. REV. 89, 91 (1966).

47. For a more complete discussion of the various state constitutional provisions as of 1928, see McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138 (1928).

It is to be noted that Alaska and Hawaii have both deemed it important to guarantee the right to keep and bear arms in their constitutions.

48. N.Y. CIVIL RIGHTS LAW art. 2, § 4. Unlike a constitutional provision, the N. Y. legislature could supersede this statute at any time.

49. But see Bliss v. Commonwealth, 2 Litt. 90 (Ky. 1822). The Kentucky statute of 1813 which forbade the carrying of concealed weapons was held repugnant to the state constitutional provision that "the right of the citizen to bear arms . . . shall not be questioned." The Kentucky Constitution was later amended and the statute prohibiting the carrying of concealed weapons was sustained in Hopkins v. Commonwealth, 3 Bush. 480 (Ky. 1868).

50. 72 Kan. 230, 83 P. 619, 3 L.R.A. (N.S.) 168 (1905).

51. Id. at 231, 83 P. at 620, 3 L.R.A. (N.S.) at 169.

52. See e.g., State v. Buzzard, 4 Ark. 18 (1859); Strickland v. State, 137 Ga. 1, 72 S.E. 260, 36 L.R.A.(N.S.) 115 (1911); Hill v. State, 53 Ga. 472 (1874); State v. Jumel, 13 La. Ann. 399 (1858); Ex Parte Thomas, 21 Okla. 770, 97 P. 260, 20 L.R.A.(N.S.) 1007 (1908); People v Warden, 154 App. Div. 413, 139 N.Y.S. 277 (1913); Andrews v. State, 3 Heisk. (Tenn.) 141 (1871); Aymette v. State, 21 Tenn. (2 Humph.) 154 (1840). See McKenna, supra note 47; Note, Restrictions on the Right to Bear Arms, State and Federal Firearms Legislation, 98 U. PA. L. REV. 905 (1950).

53. Although some of these courts speak of the right to keep and bear arms as a collective or political right, they all recognize the right as one inuring to the individual citizen in his capacity as a potential militiaman and not solely to active members of organized militias.

54. State v. Reid, I Ala. 612, 3 5 Am. Dec. 44 (1840)

55. Id. at 614, 35 Am. Dec. at 46.

56. In re Brickey, 8 Idaho 597, 70 P. 609, 101 Am. St. Rep. 215 (1902).

57. State v. Kerner, 181 N.C. 390, 393, 107 S.E. 222, 223-225 (1021).

58. Id. at 224.

59. People v. Zerillo, 219 Mich. 635, 636, 189 N.W. 927, 928, 24 A.L.R. 1115, 1117 (1922).

60. In those states which have no constitutional or statutory reference to the keeping and bearing of arms, the legislatures would appear at the present time to be entirely free to deal with the subject. See Ex Parte Ramirez, 226 P. (Calif.) 914 (1924).

61. 18 U.S.C. § 1715 (1948).

62. ACT OF JUNE 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C. § 1132. It is extremely important in ascertaining the scope of the second amendment to consider to what degree the federal government could exercise its delegated powers to restrict the right to keep and bear arms.

Under the commerce power as it is construed today, Congress could absolutely prohibit the interstate shipment of firearms and regulate their sale locally if they were "in" or "affected" interstate commerce. See U. S. v. Five Gambling Devices, 346 U.S. 441 (1953); U. S. v. Sullivan, 332 U.S. 689 (1948); North American Co. v. SEC, 327 U.S. 686 (1946); U. S. v. Darby, 312 U.S. 100 (1941).

The sale of firearms could also be made subject to severely restrictive and prohibitory excise taxes. See U. S. v. Sanchez, 340 U.S. 42 (1950); Sonzinsky v. U. S., 300 U.S. 506 (1937); U. S. v. Doremus, 249 U.S. 86 (1919).

63. The NATIONAL FIREARMS ACT OF 1934, as amended provides, (a) that the maker of, or anyone who transfers any machine gun or any one of several specified types of non-sporting weapons must pay a tax and register such weapon with the Secretary of the Treasury or his representative. It stipulates (b) that the making or transfer of any one of the following weapons requires payment of a $200 tax and registration of the weapon: (1) All fully automatic firearms; (2) All rifles with barrels less than 16" in length; (3) All shotguns with barrels less than 18" in length; (4) All firearms made from a rifle or shotgun and having an overall length of less than 26"; (5) All pistols with shoulder stocks and having barrels less than 16" in length; (6) All firearms with combination rifle and shotgun barrels less than 12" in length; and (7) All mufflers and silencers. In addition, the following firearms require the payment of the federal tax of $5 for each transfer; ( I ) All shot pistols or revolvers; (2) All firearms with combination rifle and shotgun barrels at least 12" but less than 18" in length; and (3) All weapons or devices (other than conventional pistols and revolvers) capable of firing a shot and capable of concealment on the person. 26 U.S.C. Ch. 53 5801-5862 (1954).

64. ACT OF JUNE 30, 1938, c. 850, § 9, 52 Stat. 1252, 15 U.S.C. c. 18.

65. The FEDERAL FIREARMS ACT OF 1938, as amended, provides that (a) all manufacturers, importers, and dealers in firearms, handgun ammunition, and components must have federal licenses, and (b) must maintain complete records of all sales and shipments of all firearms; that (c) no person may buy, sell, pawn or transport interstate and stolen firearm or handgun ammunition; (it) no person under indictment for or having been convicted of, any crime punishable by imprisonment exceeding one year, nor any fugitive from justice, may transport any firearm or handgun ammunition, or ship or receive any firearm or ammunition; (a) that no dealer, including mail order dealers, may ship any firearm into any state which requires a permit to purchase such firearm without receiving evidence that the prospective buyer possesses such a permit. 15 RISC. Ch. 18 901-909 (1954). Both the National Firearms Act and the Federal Firearms Act provide a maximum fine of $2,000 or imprisonment up to five years.

66. The original Dodd Bill was introduced in August of 1963 as S. 1975. In 1964 (S. 14) and 1965 (S. 1592) it was reintroduced in a more restrictive form. The more restrictive Johnson-Dodd Bill would also prohibit all mail-order sales of handguns.

67. The American Bar Ass'n, after extensive debate, has favored the enactment of S. 1592 in order to strengthen the Federal Firearms Act. 34 U.S.L. WEEK 2107 No. 7 (Aug. 21, 1965). A bill (S. 3767) introduced by Sen. Hruska (R. Neb.) in 1966 has been considered by the National Rifle Ass'n as "reasonable." This bill would, among other things, ban mail-order sales as well as other shipments of handguns to minors. It would require sworn statements submitted by a non-dealer purchaser that he is 21 or over, that the shipment will not violate any law, and it must contain the name of the local law enforcement officer. The shipper would then foreward the statement to the officer by registered mail and delay delivery for 7 days during which the officer could notify the dealer that the shipment is illegal. It would also prohibit shipment of any firearm in violation of state laws and make it a federal offense to bring a firearm into a state where its possession is prohibited. License fees as well as penalties for violations are increased.

68. See Comment, 31 U. CHI. L. REV. 780 (1964).

69. But see N.Y. PENAL LAW § 1897. This law, which is considered to be the most restrictive firearms law of the states, classifies weapons into two general categories. In one fall those the mere possession of which is a violation. The second requiries[sic] an intent to use the weapon in a willful and malicious manner. Subdivision 4 of this statute makes it a crime merely to possess any pistol, revolver, or other firearm of a size which may be concealed upon the person without a license. Possession is construed to mean all possession, whether at home or on the person, open or concealed. Although the legislature can require such licensing as a condition precedent to the possession of a concealable weapon, the statute makes no provision for the right to possess or carry a pistol or revolver unconcealed. Subdivision 8 of the statute makes it the duty of the authorities to issue a premises permit to householders and merchants and carry permits to certain messengers if no good cause exists for denial. Subdivision 9 provides only for the privilege of carrying concealed weapons and, in addition to placing the burden of showing good moral character and proper cause for issuance on the applicant, imposes no duty on the authorities to issue the license. Since a citizen may therefore be denied the right to own and possess a legitimate handgun and to carry it openly for lawful purposes, the statute may infringe on the right to keep and bear arms. See People v. Warden, 154 App. Div. 413, 139 N.Y.S. 277 (1913); People v. Ray, 28 Misc. 2d 116, 212 N.Y.S. 2d 166 (Ct. Spec. Sess. 1961); People v. Raso, 9 Misc. 2d 739, 170 N.Y.S.2d 245 (Kings County Ct. 1958).

70. See McKenna, supra note 47, at 144.

71. See 33 AM. JUR. Licenses Under Police Power, § 17 (1941).

72. Cf. Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117 (1926); Perpente v. Moss, 2 93 N.Y. 325, 56 N.E.2d 726 (1944).

73. The existing federal firearm regulations cover all but one of the stated objectives of the proposed Dodd Bill, the sale of firearms to unauthorized juveniles.

74. A proposed bill partially accomplishing this objective is H.R. 11427. This bill provides severe penalties for the commission of various crimes by the use of any firearm which has been transported in interstate commerce.

75. See generally Comment, 31 U. CM. L. REV. 780 (1964).