Northwestern University Law Review
Volume 61 (1966): 46.
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 SECOND AMENDMENT: A SECOND LOOK
Peter Buck Feller*
Karl L. Gotling**The phrase "the right to bear arms" has been familiar in the common law world for centuries. In the United States that right is recognize in the second amendment, which 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.
Since its adoption in 1791, the second amendment has received little attention either from federal courts or from legal scholars, a fact principally due to the absence of federal legislation inhibiting the free avail ability of firearms until the enactment of the National Firearms Act 1934[1] and the Federal Firearms Act of 1938.[2] Even the passage of these statutes has not given rise to an appreciable number of constitution challenges based on the second amendment, either in the courtroom or the academic forum. Consequently, questions involving the nature a scope of the right to bear arms remain largely dormant and unsettled.[3][Page 47]
In recent years, however, there has been a growing public concern over what appears to be a mounting incidence of lawlessness, dramatized by, he assassination of President Kennedy, the Los Angeles riots of the summer of 1965, and the discovery of hidden weapons caches belonging to extremists groups. In view of the public pressure for greater restrictions on the availability of firearms, it is likely that legislation augmenting federal firearms control will be forthcoming in the foreseeable future.
That probability casts a new light on the second amendment. Since it is reasonable to assume that new legislation in this area will be challenged on the ground that the right to bear arms has been violated, second amendment considerations assume greater importance. This study seeks to determine the amendment's nature and scope and, more specifically, the extent to which it proscribes Congressional action.
To a large extent, the nature of the right to bear arms as acknowledged in the second amendment was developed during the colonial and revolutionary periods in America. Part I of this study traces the right's development during that time and seeks to determine its central meaning as understood by contemporaries. To the extent that state and federal courts have rendered decisions involving the right, Part II attempts to discern a meaningful pattern in this small body of law and to project its future course.
It should be stated at the outset that the authors have consciously excluded from this analysis any commentary on the wisdom or propriety of past, pending, or proposed gun control legislation.
I.
THE ENGLISH BILL OF RIGHTS
With the coming of the American Revolution, the former colonies adopted state constitutions, which were generally prefaced by a bill or declaration of rights. The conscious and direct antecedent of these statements of dearly-held liberties was the English Bill of Rights of 1689,[4] the [Page 48] prime embodiment of the Revolution Settlement, which saw James II, exiled and replaced by William of Orange. In the main, the English Bill of Rights asserted preexisting rights of the people, but for a proper understanding of its import with respect to the right to bear arms, we must view it in terms of the specific grievances, which gave it life.
Determined to rule absolutely and to advance Catholicism in England, James II maintained a large standing army to further his objectives. He saw to it that increasingly the army was officered by Catholics to the exclusion of Protestants¾a practice which contravened the Test Act[5]¾and imported large numbers of Catholic recruits from Ireland to strengthen the army's allegiance to him.[6]
The King's oppressive practices eventually culminated in the triumphal entry of William of Orange into London. Parliament thereupon agreed on a Declaration of Rights, which was later given statutory form in the English Bill of Rights. That document begins with an enumeration of particular grievances against the Crown, clause 6 of which recites that King James II "did endeavor to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom:"
By causing several good subjects, being Protestants, to be disarmed, at the same time when papists were both armed and employed, contrary to Law.[7]
Pursuant to that complaint the document declares as a reassertion of ancient liberties:
That the subjects which are Protestants, may have arms for their defense suitable to their conditions, and as allowed by law.[8]
Reading the grievance and declaration together, and taking into a count the background of religious strife, it becomes clear that the right o Protestants to have arms was designed to assure Protestant participation in military affairs, and related only to the preservation of the Protestant religion. In that sense it comprehended what might be termed a class right rather than an individual right; individual self-defense was not within its protective purpose.[9] It was not disarming Protestants per se which in-[Page 49]censed so many Englishmen, but disarming them "at the same time when papists were . . . armed." The right asserted in the seventh declaration, therefore, was evidently conditioned upon the existence of such a state of facts.
Further, the qualification "as allowed by law" recognized Parliamentary power to circumscribe arms-bearing considerably, a power exercised in the Firearms Act of 1937.[10] That statute, which today remains in force as amended, places stringent controls on the availability of weapons. For all practical purposes the average citizen cannot lawfully obtain firearms in Great Britain at the present time.
COLONIAL GRIEVANCESIn 1776, the Continental Congress gathered in Philadelphia to fashion the document, which would make final and irreconcilable the cleavage between Great Britain and the colonies. The Declaration of Independence, the fruit of that meeting, gave voice to the resentments long and bitterly felt by the colonists against certain practices engaged in by Parliament and the Crown. Among the grievances catalogued by Jefferson, none had greater moment than those against the oppression of military rule.
The basic objection stemmed from the existence of a standing army, with all its sinister implications as to the arbitrary use of power. From that source sprang all the constituent transgressions complained of: (1) the quartering of troops in private houses in peacetime, (2) the independence and superiority of the military power to the civil power, (3) the court-martialing of civilians, (4) the use of mercenary soldiers, and (5) the seizure of militia arms.
The fear of military power was only partially rooted in prior history; experience in the colonies provided ample material for the pens of the revolutionary leaders. The arrival of a British garrison in Boston in 1768 and the resort to military rule by royal governors moved these men to express in pamphlets and other publications the widespread outrage felt among colonists,[11] developing the ideas and, to some extent, the ringing [Page 50] phrases found in the Declaration of Independence, the Constitution and, finally, the Bill of Rights.
Jefferson's indictment of George III for keeping "among us in time of peace, standing armies without the consent of our legislatures" continued what had become a popular theme. John Dickinson in 1768 had denounced the capricious "designs of the crown" which were "backed by a standing army."[12] Thomas Jefferson himself had previously observed that the King had resorted to the use of "large bodies of armed forces" to carry out his "arbitrary measures."[13] James Wilson, in somewhat more vitriolic tones branded the use of military force as an element in the Crown's "Plan of reducing the colonies to slavery."[14]
The peacetime lodging of soldiers and officers in private houses without the consent of the owners constituted a bitter irritant, which brought the First Continental Congress to demand the repeal of the intolerable Quartering Act of 1774 [15] and persuaded the majority of the new states specifically to prohibit that practice when they formulated their individual declarations of rights. The essence of the prohibition was perpetuated in the third amendment.
Military power was thought to be so dangerous to individual liberty as to require control by the civil authority. The independence of the military in the colonies pervaded every grievance held against Great Britain. It was widely and consistently stated as a fundamental precept of government that at all times the military ought to be "under strict subordination to, and governed by, the civil power."[16] In 1768, Samuel Adams, protesting the presence of British troops in Boston, wrote:
[L]et us then assert & maintain the honor¾the dignity of free citizens and place the military, where all other men are, and where they always ought & always will be placed in every free country, at the foot of the common law of the land.[17]
And:
[T]o be called to account by a common soldier, or any soldier, is' a badge of slavery which none but a slave will wear.[18][Page 51]
And again:
It is a very improbable supposition, that any people can long remain free, with a strong military power in the very heart of their country: unless that military power is under the direction of the people. . . . [19]
Another aspect of military rule repugnant to the colonists was the trial of civilians by courts-martial. In 1775, the Virginia Assembly castigated the Royal Governor for the imposition of martial law, the "most execrable of all systems" and violative of "the Constitution, and the laws of this country."[20] Samuel Adams asked rhetorically, "Are citizens . . . [to be] put under arrest, by pretext of the law military, in breach of the fundamental rights of the subjects, and contrary to the law and franchise of the land?"[21]
At that time, even the trial by court-martial of soldiers for other than purely military offenses was thought insupportable on the theory that a military court provided a haven from the justice meted out by civilian courts. The practice was denounced during the Second Continental Congress as "exempting the 'murderers' of colonists from legal trial, and, in effect, from punishment,"[22] and, in the words of the Declaration of Independence, as "protecting them [soldiers], by a mock trial, from punishment of any murders which they should commit on the inhabitants of these states."
That the British garrisons in the colonies were composed in part of hated "Hessians"[23] and other mercenary units, only deepened the colonists' resentment against British colonial policy. In that connection, George Washington warned that "Mercenary armies . . . have at one time or another subverted the liberties of almost all the Countries they have been raised to defend . . . ."[24]
Finally, the militia in each colony was conceived to be the proper instrument for providing the defense of those political entities, and any action by Parliament or the Crown, which tended to reduce the effectiveness of the militia for that purpose was viewed as an attempt to destroy the liberties of their citizens. It was thought that standing armies could only be countenanced in extraordinary situations, and that the use of the [Page 52] militia was an adequate and even superior method for coping with the problems of defense, Faith in the militia was as strong as distrust for the standing army, as typified in a statement by James Lovell in 1771:
The true strength and safety of every commonwealth or limited monarchy, is the bravery of its freeholders, its militia. By brave militias they rise to grandeur; and they come to ruin by a mercenary army.[25]
The colonists' attachment to the militia as the best mode of common defense sprang not only from the fear of standing armies and military rule, but also from the fear that, given the fact of British troops in the colonies, those troops might not be employed to see to their protection.[26] Thus, it was observed that, "The sword should never be in the hands of any, but those who have an interest in the safety of the community . . . such as a well regulated militia composed of freeholders, citizens and husbandmen. . . ."[27] Likewise, the Town of Boston instructed its representatives, in 1773, that "the militia of the colony are its natural and best defense; and it is an approved maxim in all well-policed states, that the sword should never be entrusted but to those who combat pro aris et forcis; and whose interest it is to preserve the public peace."[28]
Therefore, any action by the Crown, which would diminish the effectiveness of the militia, was bound to produce strong reactions among the colonists. When a detachment of British soldiers advanced toward Lexington to seize a store of militia arms in April of 1775, the resulting alarm led to the first important battle of the Revolution.[29] Earlier, other incidents involving British seizure of militia arms had brought sharp rebuke.[30]
There appears to have been no thought or mention of a personal right [Page 53] to carry firearms during that period. Uppermost in the minds of the colonists was a fear of military rule, the two prime manifestations of which were the beliefs that (1) standing armies were acceptable only under the most stringent control of the civil authority and only under extraordinary circumstances, and that (2) the militia was the proper instrument in a free society to provide for the defense and safety of individual states. Apparently, no grievance leading or contributing to the Revolution involved the disarming of an individual, and no evidence shows that either the populace or the revolutionary leaders conceived any individual right to bear arms as having been violated by British colonial policy. The battles of Lexington and Concord were not engendered by the British intentions to disarm a single man, but rather their move to disarm the militia.
THE STATE BILLS OF RIGHTSWhile the Continental Congress deliberated in Philadelphia to adopt a Declaration of Independence, the Virginia Convention occupied itself in Williamsburg with formulating a plan of Government and a Declaration of Rights. The delegate from Fairfax County, George Mason, was appointed to the drafting committee and soon assumed leadership of the project. What finally emerged as the Virginia Bill of Rights of June 12, 1776, was his work, virtually in its entirety, both as to its language and to its substance.[31]
The New World's first bill of rights attempted, among other things, to clarify what was conceived to be the proper role of the military in a free society and to prevent a recurrence of military rule. It provided:
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordination to, and governed by, the civil power.[32]
Virginia's example was widely emulated. In those states which subsequently drafted their own bills of rights, the specific provisions found in George Mason's document had a profound and pervasive influence,[33] not only because it was the first document of its kind in the colonies, but [Page 54] also because Virginia was the wealthiest and most populous state, and boasted an outstanding array of leaders and thinkers.
Although Pennsylvania's constitutional convention was dominated by radicals,[34] it adopted a declaration of rights closely resembling Virginia's.[35] Whether the article directed at military rule reflected one of the few departures from the Virginia Bill of Rights is not altogether clear. The Pennsylvania document declared:
That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.[36]
Both the Pennsylvania and Virginia versions contained three clauses, of which the second and third are identical in substance, although there are minor differences in the form of expression. The wording of the first clause, however, differs appreciably between the two versions. The Pennsylvania declaration utilizes the phrase "the right to bear arms," apparently for the first time in an American document. The right is said to be "for the defense of themselves and the state," whereas the Virginia declaration refers to the "defense of a free state." Moreover, the militia is not mentioned in the Pennsylvania version.
There seems to be no evidence that there was any conceptual disagreement between the two conventions on this matter. In each case, the first clause was designed to provide a counterweight to the need for standing armies. Whether the change in language was prompted by anything other than stylistic consideration, however, can only be guessed.
The first clause in the Pennsylvania provision is susceptible to) two reasonable interpretations. If it is taken as established that the Pennsylvania convention sought merely to paraphrase Virginia's militia clause, one must conclude that the word "people" was used in a collective sense, similar to the concept of a militia "composed of a body of the people" as found in the Virginia counterpart. Viewed this way, the pronoun "themselves," in the phrase "for the defense of themselves and the state," has as its antecedent the collective idea "people."[37] Therefore, to say that the [Page 55] people have a right to bear arms to defend themselves does not refer to an individual right to have a weapon to exercise the individual, common-law right to self-defense.
A question remains under this interpretation as to the reason for the designation "themselves and the state" as the object of defensive arms-bearing. Harking back to John Locke and the compact theory of society, the drafters of the Pennsylvania Declaration of Rights may well have deemed it appropriate to emphasize the separation between government and the governed. In other words "defense of themselves" referred to the collective defense of the lives and property of the inhabitants of the state; "defense of ... the state," on the other hand, referred to the protection of the state political framework and the perpetuation of state sovereignty.
The second interpretation would assume that the word "people" contemplated individual, citizens. In short, where the Virginia provision clearly dealt with the militia, the first clause of its Pennsylvania equivalent would be read as asserting a right in individual citizens to possess and carry weapons.
Though the conclusion may be arguable, it seems probable¾in view of the lack of evidence of a specific controversy on this point and the fact that the Virginia Bill of Rights was to a considerable extent commandeered to form the Pennsylvania Declaration¾that no substantive change was intended by the different wording of the first clause. Even if the Pennsylvania version were meant to safeguard an individual right to have arms, without regard to an organized militia, it would be unlikely that it constituted one of the sources of the second amendment, which manifestly relates to the militia.
The Delaware Declaration of Rights stated that "a well-regulated militia is the proper, natural and safe defense of a free government,"[38] reiterating that the existence of a state militia as a counterpart to a standing army was an essential concern in the revolutionary era, as well as a conceived essential right in maintaining governments of free men. The Maryland Declaration of Rights contained almost identical phrasing.[39]
In North Carolina, the drafting committee apparently borrowed from Pennsylvania to frame its right-to-bear-arms provision. A notable exception was the absence of reference to the right of the people to bear arms for the defense "of themselves." Article 17 reads in pertinent part: "That [Page 56] the people have a right to bear arms, for the defense of the State."[40] The Omission remains unexplained.[41]
Vermont had existed as a de facto state long before its admission into the union as the fourteenth state. In 1777, it adopted a Declaration of Rights, which reflected the profound influence of the ultra-democrats in Pennsylvania[42] and the rugged, individualistic character of its own citizenry. Pennsylvania's right-to-bear-arms declaration was incorporated verbatim.[43]
In Massachusetts, the right was described in terms of "to keep," as well as "to bear," arms,[44] while New Hampshire's bill of rights reasserted the necessity of a well regulated militia.[45]
THE CONSTITUTIONAL CONVENTIONThe widespread disaffection with the Articles of Confederation led to the federal convention of 1787 for the formation of a more effective national government.[46] The predominant mood among the delegates was conservative and favored the creation of a far stronger national government than had existed under the Articles.[47] Fears of disunion were stirred [Page 57] by, among other things, reports that a plan was being circulated to divide the confederacy into four separate republics.[48] Shay's Rebellion and other disorders nurtured the fear of anarchy and the conviction that a strong militia under the supervision of the central government was necessary.
Nevertheless, some delegates, notably George Mason, Elbridge Gerry and Edmund Randolph, attempted to influence the convention to adopt a prefatory bill of rights. When that failed, piecemeal amendments to the body of the draft constitution were sought to provide some measure of protection for individual and state rights, a tactic which also proved unsuccessful.[49]
Mason proposed to the Convention that Article I, section 8, clause 16, be prefaced by a clause which would have altered the provision to read: "The Congress shall have power:"
That the Liberties of the People may be better secured against the Danger of regular. Troops or standing Armies in Time of Peace, to provide for organizing, arming, and disciplining the Militia . . . . [50]
Mason apparently intended this insertion to convey the essence of Article 13 of the Virginia Bill of Rights into the Constitution. It illustrates persuasively that he considered the existence of an effective militia, rather than a secured individual right to bear arms, as the appropriate means of eliminating the need for a standing army. Since the militia, among other things, was to be used to put down insurrections, it would be absurd to say that Mason contemplated the strengthening of the militia to avoid the danger of standing armies, while at the same time advocating that individual citizens had a right to possess arms, thus increasing their capabilities to participate in insurrections.
Evidently, the method of providing arms to the militia was a subsidiary consideration; there is no indication that Mason objected to the fact that Congressional action was meant to foster the effectiveness of the militia, whether called into federal service or not. This is further buttressed by the fact that George Mason's famed "Objections to the Proposed Federal Constitution," which provided the Anti-Federalist rallying cry ("there is no declaration of rights"), contained no mention of the absence of a provision securing to individuals a right to have weapons.[Page 58] Instead we find only: " There is no declaration of any kind . . . against the danger of standing armies in time of peace."[51]
STATE RATIFYING CONVENTIONSThe Constitution was submitted to the states for ratification on September 28, 1787. The procedure proved to be a painful one, the struggle between the Federalist and Anti-Federalist factions reaching bitter intensity in several state conventions.
Initially, five states ratified within roughly a one-month period, without advancing proposed amendments.[52] In Pennsylvania, the second state to ratify, the Federalist victory was even attended by violence.[53] The dissenting minority did not accept defeat passively at the convention and I gathered at Harrisburg in early September, 1788, to hold their own convention, the product of which was a letter of resolutions for amending the" Constitution. The letter enjoyed wide circulation and may have had some' influence on the ratifying conventions of the remaining states. The salient,, feature of that document, for purposes of this study, was the provision that each state shall have the power to arm its militia whenever Congress has failed to do so.[54]
Massachusetts became the first state to propose amendments at its ratifying convention. None of the proposals involved the right to bear arms.[55] At the convention, however, the venerable Samuel Adams introduced an amendment, intended to be grouped with the others, which asserted among other things that the "Constitution be never construed to authorize Congress to . . . prevent the people of the United States, who [Page 59] are peaceable citizens from keeping their own arms."[56] Adams' probable conception of the right to keep arms, as a personal one cannot be doubted. It is noteworthy that, having proposed the amendment, Samuel Adams, who by this time had lost some of his revolutionary fervor, succumbed to Federalist pressure and voted against it![57]
New Hampshire was the ninth state to ratify, coupling its approval with proposals in the nature of a bill of rights to be considered by the congress at its first session.[58] Among these was the provision: "Twelfth: congress shall never disarm any citizen unless such as are or have been in Actual Rebellion."[59]
In June 1788, all attention was directed toward Richmond, where the Virginia ratifying assembly prepared to debate the Constitution. Union without Virginia, with its prestige, wealth and its comparatively large population, was unthinkable.
The militia clause of the Constitution proved to be the subject of extensive debate. In response to entreaty to state his specific objections to the Constitution, Patrick Henry expressed inter alia the alarm among the Anti-Federalists that "you [the state legislature] are not to have the right of having arms in your own defence."[60] Mr. Lee of Westmoreland, a member of the Federalist camp, rose next to reply: "I cannot understand the implication of the honorable gentleman, that, because Congress may arm the militia, the states cannot do it. . . . [T]he states are, by no part of the plan before you, precluded from arming and disciplining the militia, should Congress neglect it."[61]
This exchange illustrated the precise point of contention between the opposing factions, the issue which in fact reflected, throughout the ratification struggle, the basic positions taken by Federalist and Anti-Federalist on the need for a bill of rights. The former declared that, since the Constitution established a government of enumerated powers, no bill of rights [Page 60] was necessary. In short, if the federal government could not exercise powers not granted, it could not infringe on fundamental rights, since the" enumerated powers were sufficiently circumscribed to preclude it. Anti-Federalists, however, argued that many powers could be implied from the, enumerated ones and, therefore, a bill of rights was required to preserve certain liberties.
George Mason, too, reading the clause which gave Congress the power to arm, discipline and organize the militia, saw an inherent danger that it might be exercised in such a way "as would make them [the people] wish the use of the militia to be utterly abolished, and assent to the establishment of a standing army."[62]
In addition, Patrick Henry believed that Article 1, section 8, gave Congress the exclusive power to suppress insurrections, leaving the state subject to federal caprice in recognizing emergencies in the states an making the militia available accordingly.[63] Another delegate objected the want of checks in this area, on the grounds that Congress might a the militia in one part of the Union and neglect it in another.[64]
Nowhere does it appear that the delegates to the Virginia Convention were concerned with a supposed individual right to carry weapons. When ratification was accomplished and, as a conciliatory gesture, the Federalist party agreed to the recommendation of amendments, the amendment proclaiming the right of the people to bear arms[65] was clearly designed to placate Mason, Henry and others by clarifying what to John Marshall was obvious:
If Congress neglect our militia we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militiamen?[66][Page 61]
THE FEDERAL BILL OF RIGHTS
The compromise in Virginia saw the Federalist James Madison agree to champion a bill of rights in the first session of Congress.[67] He introduced his proposed amendments to the House of Representatives on June 8, 1789. Among them was the provision:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[68]
The language of this earlier version of the second amendment readily illustrates Madison's probable intent in advancing the proposal. The right to bear arms in this context was clearly contemplated as complementing the principle that a well-armed militia is an instrument of defense, to be favored and preserved. In effect, the provision says that because a well-armed militia is necessary, any action, which would tend to disarm the militia or render it less than well-armed shall be prohibited.
Moreover, the last clause, which exempts conscientious objectors from bearing arms in the military service, reinforces the contention that the right to bear arms was not conceived by Madison to be individual in nature, but rather a concomitant of one of the "fundamental maxims of free Govemment."[69] Inasmuch as the exemption necessarily assumes the duty or requirement to bear arms in the military service, the entire provision must naturally be taken as a scheme to preserve the protective force of state governments.
Elbridge Gerry, representing Massachusetts, who together with George Mason and Edmund Randolph had spearheaded the attempt to secure a bill of rights at the Constitutional Convention, proved to be one of the most energetic and vociferous of Madison's allies. As the House embarked on a discussion of the proposal which was to become the second amendment, Gerry rose to support it and, in so doing, stamped its character as a protection of a state right to maintain a militia:
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a stand-[Page 62] ing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins. This was actually done by Great Britain at the commencement of the late Revolution. They used every means in their power to prevent the establishment of an effective militia to the Eastward. The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia . . . [70]
Madison's proposals were referred to a Select Committee in order to expedite Congressional business. What the Committee reported out, and what the House passed as article 5, appears to have been no more than a rephrasing of the provisions to suit the tastes of its members; no change in substance was made or intended.[71]
In the Senate the wording was again changed to the form which was finally adopted as the second amendment.[72] If the various alterations of Madison's original offering were the result of anything other than stylistic considerations, there is no record' of it. The central idea, that the people of the states had a right to be protected against the devitalizing of the state militia, remained intact. In short, the right to keep and bear arms is the right to maintain an effective militia.
II.
STATE COURT DECISIONS
There have been a modicum of state court decisions which, though not controlling as interpretations of the second amendment, nevertheless have some weight, either because they have construed a provision similar to the second amendment found in the applicable state constitution or because the second amendment itself evoked relevant comment. Most of the salient state cases occurred before the turn of the 20th century, and in the aggregate, they represent widely divergent points of view, indicating certain confusion as to the essential nature of the right to bear arms.
Among the early cases was one that went so far as to hold that individual citizens had a right to possess and carry firearms. The right was not abridging able even by the exercise of the police. Power, which in that instance involved legislation seeking to prohibit the carrying of concealed weapons.[73][Page 63]
However, it has been well established that whatever the nature of the right to bear arms, it is not absolute. By 1896, a Massachusetts court was able to proclaim, "It has been almost universally held that the legislature may regulate and limit the mode of carrying arms."[74] There is no state at the present time, which does not in fact regulate to some extent the possession and use of firearms. A number of states prohibit absolutely the possession by individuals of certain types of weapons as enumerated in their respective statutes.[75]
A sizeable number of state decisions have expressly acceded to the view or have assumed that individuals inherently possess the right, although subject to certain restrictions. A North Carolina statute prohibiting persons from carrying weapons beyond the bounds of their own premises, for example, was struck down on this basis in Kerner v. State.[76]
Other state court decisions have taken the position that the right to bear arms "is one of those rights reserved for the states";[77] that is, it pertains to a collective, rather than an individual, concept. The most articulate exponent of that view was the Supreme Court of Kansas in its disposition of Salina v. Blaksley.[78] A state statute made it unlawful for vagrants to carry weapons. Challenging a conviction under that statute, the defendant claimed that it was invalid in the face of a state constitutional provision, couched in language similar to that contained in the second amendment, which protected the right to bear arms. The court sustained the conviction and concluded that the term "people" was used in its collective sense[79] in the Kansas constitution and, impliedly, in the second amendment.
Moreover, the Salina opinion suggested that the right does not necessarily exist with respect to weapons generally suitable for use in civilized [Page 64] warfare, but to weapons expressly prescribed for the militia by the state or other authority. While, in a sense, virtually any weapon is suitable for use in modern, "civilized" warfare, it is obviously absurd for a militiaman to report for duty carrying his privately owned weapon which differs from the standard issue, or otherwise to claim that he has a right to bear that weapon on the grounds that it is one appropriate in modem warfare.
It is difficult to discern a trend among so small a selection of state court decisions. However, there is clearly a growing recognition that both historically and etymologically the right to bear arms is a military concept and in the second amendment has reference only to the state militia.[80]
That having been said, the question arises as to the meaning of the well-regulated militia" as it appears in the second amendment. Some would have us believe that "well-regulated" is merely descriptive of the ideal state of preparedness of the entire able-bodied male population of each state. Nevertheless the term "well-regulated militia" must be taken to mean the active, organized militia of each state, which today is characterized as the state National Guard.[81] The unorganized or reserve militia has no status under the amendment.[82] This was apparently contemplated as the proper scheme for providing citizen defense for each state, as seen in Hamilton's Federalist No. 29:
But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate size, upon such principles as will really fit it for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defense of the State shall require it.
FEDERAL COURT DECISIONS
The passage of the National and Federal Firearms Acts produced number of cases in which the defendants, charged with violating one or [Page 65] the other of these statutes, contended that Congress had infringed upon the right to bear arms, as guaranteed to all citizens in the second amendment.[83]
The validity of the National Firearms Act was upheld against a second amendment challenge in United States v. Adams,[84] wherein the court declared that the right to bear arms referred only to the militia as a force to protect the sovereignty of state governments, "to the collective body and not individual rights."[85]
In United States v. Miller, 86 which involved a conviction for the interstate transportation of an unregistered shotgun the barrel of which was tinder the requisite 18" length prescribed in the National Firearms Act, the Supreme Court rejected the constitutional attack, stating:
In the absence of any evidence tending to show that possession or use of 'a shotgun has a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation of efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[87]
The court let pass the opportunity to review in depth the question of the nature and scope of the right to bear arms. Instead, it preferred to dispose of the case on what was essentially a matter of proof, adopting the familiar qualification that the right covered only weapons ordinarily used in civilized warfare; it concluded that the absence of proof that a shotgun with a barrel less than 18" in length was an ordinary implement of war, or could be used to contribute to the common defense, required the conviction to be upheld.
That decision contains the pernicious implication that the presence of such proof would result in the statute being declared invalid. By logical extension, any firearm or weapon proved to be effective as an instrument of the common defense or having a reasonable relationship to preserving [Page 66] the effectiveness of the militia would be beyond the regulatory power of Congress. The deadlier the weapon, the greater its protection under the second amendment¾whether a machine gun, bazooka or ray gun. It is fair to assume, however, that the Court did not intend to establish such a remarkable rule. Arguably, the Court's use of the phrase "reasonable relationship to the preservation of efficiency of a well regulated militia" justifies a more circumspect implication, that at the present time when the state militia is armed through the state government, no privately owned weapons bear a reasonable relationship to the maintenance of the militia's effectiveness.
A subsequent decision, Cases v. United States,[88] specifically called attention to the adverse implication in Miller and concluded that it was meant to be limited to the particular facts before the court. In Cases, the validity of the Federal Firearms Act was sustained in the face of a second amendment challenge. Under the Act, the appellant by virtue of a prior conviction of a crime of violence was prohibited, subject to criminal sanction, from receiving firearms in interstate' commerce. Having violated that prohibition, he was prosecuted and found guilty. On appeal, the conviction was upheld on the ground that no evidence was adduced showing that appellant possessed the weapon as a member or prospective member of a military organization.
While the court in Cases impliedly criticized the Miller decision for its lack of clarity and misleading language regarding the nature of the right to bear arms, it fell into a similar snare. The court failed to go to the heart of the second amendment problem and evidently based its ruling on question of proof. Had the appellant shown that he was a member of military organization and that the weapon he possessed was standard issue for the organization, the court, following its own pronouncement, could have made no other consistent decision than that the conviction was invalid, since it would have been based on a statute violative of the second amendment. However, the Cases court redeemed itself somewhat by conceding that it only intended to dispose of the facts before it.[89][Page 67]
CONCLUSIONS
There can be no doubt that in America during the Revolutionary era the thought that individuals had an inherent right to have their own weapons¾which was distinct from the right of the states to maintain their militia independent from federal control¾had some currency. This idea seems to have been associated either with the belief that there existed a right to revolution,[90] or with the vicissitudes of frontier life, which required the ability to defend against Indian attack.[91] Later, a number of state court decisions found this conception of the right to bear arms as the one incorporated in the second amendment.
While the belief that there was a natural right to revolution was shared even among Federalists, including Hamilton and Madison,[92] it can hardly be said that the very practical men who undertook to form our political system intended in any way to preserve that concept in the Bill of Rights.[93] The guarantee of the right to bear arms would dearly have perpetuated that idea if it was meant to apply to individuals, for it would constitute an ever-present threat to the stability of both state and federal governments. In the words of Roscoe Pound, "A legal right of the citizen to wage war on the government is something that cannot be admitted."[94] More importantly, there is convincing evidence that the first Congress consciously rejected the concept of a natural right of revolution.[95][Page 68]
The overriding concern of the delegates to the federal convention was the need for a strong central government, with particular emphasis on the need to contain insurrection. Inasmuch as most of these men later represented their respective states in the first Congress, which passed the Bill of Rights and submitted it for ratification, it would appear improbable that they had such incompatible intentions: the second amendment having been addressed to the need of each state for a well-regulated militia, which by definition forms a bulwark against invasion and insurrection, to say at the same time that each citizen has the right to own and carry a weapon to vindicate a right of revolution, defies reason. The second amendment transparently had as its purpose the strengthening of the militia as a force necessary to the security of the state, including security from lawless, violent conduct by armed individuals or armed groups of individuals.
The fact that the weapons of the militia of that day consisted largely of the private arms supplied by its individual members explains the absence of any real controversy as to the nature of the right.[96] In short, the issue had little significance since it was apparently not foreseen that state militia, when not in the federal service, would one day be armed and equipped by other means.[97][Page 69]
From the foregoing discussion we find that the nature and dimensions of the right can be summed up as follows: In essence, the "right of the people" refers to the collective right[98] of the body politic of each state to be under the protection of an independent, effective state militia. It partakes of an individual right to this extent: a militiaman in the active service of the organized militia, who is carrying a weapon for an authorized militia purpose, may claim the protection of the right. The weapon involved must be one suitable to the militia, which ordinarily would be restricted to one actually prescribed, or issued, by the state or other authority. Moreover, the word "arms" in this sense usually refers to weapons capable of being carried by one man, but in its larger application as a collective or state right, it probably comprehends other weapons appropriate to the proper functioning of the unfederalized state militia.
As a practical matter, however, the states cannot independently provide their militia with all the sophisticated and devastating modem weaponry in the arsenal of the United States. They cannot support the cost of research and development of advanced weapons systems, and certainly it cannot be admitted that nuclear weapons should be made available to them except under central control.
Since the emergence of the United States as world leader and prime military power, the role of the federal government in maintaining a gigantic national defense capability has made that power overwhelming vis-a-vis the states. The relationship has unalterably changed, and the right of the states to have an independent, efficient militia is insignificant in terms of a balance of power between the state and central government.
The astounding march of technology has produced a spectrum of war weapons of immense destructive power. Under these circumstances the idea of a possible power struggle between state and federal government to insure state sovereignty is somewhat empty and absurd.
It becomes apparent, then, that the ideal of the supremacy of state [Page 70] militia over federal military power is a fading echo.[99] The second amendment as the embodiment of that ideal is therefore obsolete. In any event, there should be no mistake as to what the second amendment does in fact embody. It guarantees that the Congress shall not infringe upon the right of a state to maintain its militia and should not so disarm a citizen as to prevent him from functioning as a militiaman in the organized state militia.
*Member of the Bar, Washington, D.C.
** Member of the Bar, Michigan.
1. 26 U.S.C. §§ 5801-5862 (1964). - 15 U.S.C. §§ 901-909 (1964).
2. The legislative history of both the Federal and National Firearms Acts reveals virtually no opposition based on the second amendment. At the present time, however opponents of further federal involvement in gun control have rallied around the argument that such action would run contrary to the second amendment. Several bills were introduced into the 88th Congress to restrict the mail order traffic in firearms, which brought a reaction from the State Bar of Michigan in the form of a resolution, reciting inter alia: "The proposed legislation is in violation of the second amendment to the United States Constitution and the Tight to bear arms is a basic right. We believe that the right granted under the second amendment is one granted to the individual an not to the militia as an organization." S. REP. No. 1340, 88th Cong., 2d Sess., 29 (19 For a discussion of the various legislative proposals offered in the 88th Con s, Comment, 31 U. CHI. L. REV. 780 (1964). Other examples relating to similar proposals in the 89th Congress: "I am genuinely concerned with Senator Dodd's two bill 1591 and S. 1592 relating to firearms registration and control . . . it's a direct violation of the Constitution which guarantees the citizen the right to keep and bear arms" ¾from a letter from a constituent inserted into the Congressional Record, III CONG. A3949 (daily ed. July 21, 1965) (Mr. Clausen); "I vehemently oppose efforts to register firearms by serial numbers, restrict the sale to bona fide purchasers and otherwise impinge on the right of Americans to peaceably bear and use arms . . . . We should not succumb to the emotionalism and frenzy which has been whipped up by many do-gooders and far leftwing thinkers who have devious motives in disarming our citizenry. This is one basic right which is a principal criterion of a free man¾." Statement by Representative Ashbrook, III CONG. REC. 14740-41 (June 30, 1965). The American Bar Association in its 1965 Convention endorsed S. 1592, the Dodd bill aimed at eliminating the mail order traffic in firearms. See President Johnson's Message to Congress on crime: "We must stop the flow of firearms into dangerous hands. . . . Our Federal responsibility is clear. it is promptly to enact legislation, such as S. 1592, to regulate and control interstate traffic in dangerous firearms." H.R. Doc. No. 407, 89th Cong., 2d Sess. (1966).
4. SOURCES OF OUR LIBERTIES 303 (Perry & Cooper ed. 1955 hereinafter referred to as SOURCES); POUND, THE DEVELOPMENT OF THE CONSTITUTIONAL GUARANTEES OF LIBERTY 83 84 (1957).
5. TREVELYAN, THE ENGLISH REVOLUTION 1688-1689, 57-62 (1938). The Test Act of 167 excluded from military office those who did not take the sacraments of the Anglican Church. 25 Car. 2, c.2.
6. Id. at 102.
7. I W. & M., Sess. 2, c. 2 § 9. See SOURCES, at 245.
8. Ibid. See SOURCES, at 246.
9. Contra, JELLINEK, THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS 49 (Max Farrand Trans. 1901) for the proposition that assuring Protestants their right to bear arms was the only individual right contained in the English Bill of Rights other than the right of petition.
10. 1 Edw. 8 and I Geo. 6, c.12 § 30. The statute prohibits the purchase, acquisition or possession of a firearm or ammunition unless the citizen in question has been issued a firearms certificate from the chief officer of police in the area wherein he resides. Certificates are only granted for compelling reasons and may be revoked at any time. In addition, all manufacturers and dealers in firearms must be registered and may not sell to those without certificates. All transactions in firearms must be registered.
11. JOURNALS OF THE CONTINENTAL CONGRESS 34 (Ford, ed. 1904) in which appears one of the "Suffolk Resolves" addressed to General Gage and dated September 6th, 1774, decrying the British removal of gun powder from the magazine at Charlestown and otherwise keeping powder out of the hands of colonial militiamen.
12. Letters from a Farmer in Pennsylvania, Letter IX, reprinted in ESSENTIAL WORKS OF THE FOUNDING FATHERS 65, 68 (Kriegel ed. 1964).
13. A Summary View of the Rights of British America, id. at 97, 111
14. "An Address to the inhabitants of the Colonies, February 13, 1766, id. at 114, 120.
15. "Declaration and Resolves of the First Continental Congress, October 14, 1774, reprinted in SOURCES, at 286, 289.
16. "Declaration of Rights and Constitution of North Carolina, December 14, 1776, SOURCES, at 355, 356.
17 Quoted in DOUGLAS, THE RIGHT OF THE PEOPLE 173 (1958).
18. Ibid.
19. Quoted in ROSSITER, SEEDTIME OF THE REPUBLIC 387 (1953).
20. See Reid v. Covert, 354 U.S. 1, 28 n.49 (1956).
21. 1 WELLS, THE LIFE AND PUBLIC SERVICES OF SAMUEL ADAMS 231 (1865).
22. The Declaration of the Causes and Necessity of Taking up Arms, July 6, 1775, SOURCES, at 295, 296.
23. The fact that Virginia wheat farmers scornfully dubbed a destructive insect the "Hessian fly" illuminates this point. I UTTERS AND WRITINGS OF JAMES MADISON 406 (1865).
24. 26 WRITINGS OF WASHINGTON 388 (Fitzpatrick ed., 1931).
25. ROSSITER, SEEDTIME OF THE REPUBLIC 387 (1953).
26. MILLER, THE CASE FOR LIBERTY 68 (1965) chronicles Bacon's Rebellion in Virginia in 167 5-1676.
27. ROSSITER, SEEDTIME OF TIM REPUBLIC 387 (1953).
28. Ibid.
29. CLARK, OPENING OF THE WAR OF TnE REVOLUTION, 19TH OF APRIL, 1775: A BRIEF NARRATIVE OF THE PRINCIPAL TRANSACTION OF THAT DAY 5-8 (1875). See PEcKHAm, THE WAR OF INDEPENDENCE 8 (1959) which reprints General Gage's order to advance to Concord: "Sir. You will march with the corps of Grenadiers and Light Infantry put under your command with the utmost expedition and secrecy to Concord, where you will seize and destroy all the artillery and ammunition you can find . . ."
30. The cannon and stores of the Massachusetts Militia were kept at and near Cambridge. Gage now learned the ominous circumstances that the several townships of the province had begun uietly to withdraw their share of the ammunition. On the first of September A before sunrise, he dispatched an expedition from Boston, by road and river, which took possession of a couple of field pieces and two hundred and fifty kegs of powder . . . . TREVELYAN, THE AMERICAN REVOLUTION 175, 187 (one volume, Morris ed. 1965).
31. MILLER, GEORGE MASON: CONSTITUTIONALIST 136 (1938). "The fact is unquestionable that the Bill of Rights and the Constitution of Virginia were drawn originally by George Mason, one of our really great men, and of the first order of greatness." Jefferson to judge Woodward, April 3, 1825.
32. Reprinted in SOURCES, at 312.
33. RUTLAND, BIRTH OF THE BILL OF RIGHTS 1776-1791 44 (1959); MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 272 (1965).
34. SELSAM, THE PENNSYLVANIA CONSTITUTION OF 1776 136 (1936). "The radicals gained control and were willing to push the experiment in self government far beyond the point considered safe by the ousted conservatives." See also, RUTLAND, Op. Cit. supra note 33, at 44, 45.
35. John Adams writes in his Diary that in Pennsylvania "The bill of rights is taken almost verbatim from that of Virginia, which was made and published two or three months before that of Philadelphia was begun." 3 THE WORKS OF JOHN ADAMS 222 (1851).
36. Reprinted in SOURCES, at 328, 330.
37. "In free states the people form an artificial person, or body politic. . . ." Attributed to justice James Wilson in his Law-Lectures. I ELLIOT'S DEBATES 62 (2d ed. 1836). The word "people" was commonly used in political theory as a synonym for "the public" or "society" or "the body politic." DIETZ, THE FEDERALIST 114, 116 n.28 (1960).
38. Reprinted in SOURCES, at 338, 339.
39. Id. at 346, 348.
40. Id. at 355, 356.
41. Perhaps, the word "themselves" was thought to be superfluous, since the word "state" might readily be construed to include the body politic of the state. It is possible to attribute to the North Carolinians the belief that the Pennsylvania Declaration asserted an individual right to carry arms by the use of the term "themselves." Therefore. the deletion of that word would be considered a conscious negation of that concept. There is no indication, however, that the omission can be accurately explained on this basis.
42. Dr. Thomas Young of Philadelphia, who helped draft the Pennsylvania bill of rights, circulated an "Address" among the inhabitants of Vermont which was designed to " send the seeds of liberty out in broadcast fashion." His advice as to a declaration of rights was readily accepted by the Vermont Convention. RUTLAND, Op. Cit. supra note 33, at 70-71.
43. Reprinted in SOURCES, at 364, 366.
44. Id. at 373, 376.
45. Id. at 382, 385. None of the other states, Rhode Island, Connecticut, Georgia. New York, New Jersey and South Carolina, adopted specific bills of rights although their constitutions or charters did effect varying degrees of protection to individual liberties. However, the right to keep and bear arms appears nowhere to have been mentioned.
46. For his part, he [Rutledge] thought the Confederation so very weak, so very in. adequate to the purposes of the Union, that, unless it was materially altered, the sun of American independence would indeed soon set¾never to rise again." Edmund Rudledge in the South Carolina Ratifying Convention, 4 ELLIOT'S DEBATES 274 (2d ed. 1836).
47. DONOVAN, MR. MADISON'S CONSTITUTION 92 (1965); WARREN, THE MAKING OF THE CONSTITUTION (1937) c.l. "Scarcely any of these men (the framers of the Constitution) entertained what we should now call extreme democratic views. Scarcely any, perhaps, had that intense faith in the ultimate good sense of the people which was the most powerful characteristic of Jefferson," FISK, CRITICAL PERIOD OF AMERICAN HISTORY 226 (1888).
48. See Madison's letter to Jefferson, dated December 9, 1787. 1 LETTERS AND WRITINGS OF JAMES MADISON 362, 365 (1865).
49. RUTLAND, op. cit. supra note 33, at 116.
50. IV FARRAND, THE RECORDS OF THE FEDERAL CONVENTION 59 (rev. ed. 1937). (Italics indicate Mason's proposed addition.)
51.PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES 329-32 (Leicester, ed. 1888).
52. Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, Decem. ber 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788.
53. "[The minority] of Pennsylvania has been extremely intemperate, and continues two use a very bold and menacing language." James Madison to Thomas Jefferson, February 19, 1788, 1 LETTERS AND WRITINGS OF JAMES MADISON 377 (1865). When the federal convention adjourned the Pennsylvania state legislature was already in session. The Fed.. eralist majority immediately moved to call a ratifying convention, whereupon 19 members of the minority absented themselves leaving the assembly without a quorum to conduct business. "A Federalist mob now intervened and dragged two of the absentees, the worse for rough handling, to the assembly room . . . . Thanks to these applications of 'direct action,' the assembly, now having a quorum proceeded to provide for the elec. tion of delegates to meet in convention at Philadelphia." SCHUYLER, THE CONSTITUTION OF THE UNITED STATES (1923) reprinted in THE DECLARATION OF INDEPENDENCE AND THE CONSTITUTION (pamphlet from the Problems in American civilization Series, Amherst College, 1949).
54. DUMBAULD, BILL OF RIGHTS AND WHAT IT MEANS TODAY 11 (1957); RUTLAND, op. cit. supra note 33, at 141.
55. 2 ELLIOT'S DEBATES 543 (2d ed. 1836).
56. PIERCE & HALE, DEBATES OF THE MASSACHUSETTS CONVENTION OF 1788 86-87 (1856).
57. Ibid.
58. Maryland ratified on April 26, 1788, recommending thirteen amendments to be considered at the first session of Congress, none involving the right to bear arms. However, several minority proposals which the convention rejected, while not specifically using), the phrase "the right to bear arms," were designed to secure the independence of the state militia from federal control. These included a prohibition against marching a state militia beyond the borders of any adjoining state and the requirement that both branches of Congress approve by a two-thirds vote the maintenance of a standing army in peacetime. 2 ELLIOT'S DEBATES 552-53 (2d ed. 1836). South Carolina ratified on May 23 of the same year. None of its recommendatory amendments referred to the right to bear arms.
59. DUMBAULD, op. cit. supra note 55, at 182.
60. 3 ELLIOT'S DEBATES 171 (2d ed. 1836).
61. Id. at 178.
62. Id. at 402.
[U]nless there be some restrictions on the.power of calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, we;, may very easily see that it will produce dreadful oppressions. It is extremely unsafe, without some alternations. It would be to use the militia to a very bad purpose, if any disturbance happened in New Ham shire, to call them from Georgia. This would harass the people so much that they would agree to abolish., the use of the militia, and establish a standing army.
Id. at 378 (Mason).
63. Id. at 393. Grayson shared this belief. "They [the Congress] may inflict the most cruel and ignominious punishments on the militia, and they will tell you that it necessary for their discipline," id. at 412 (Patrick Henry).
64. Id. at 418 (Grayson).
65. Among the amendments which North Carolina proposed was one identical to proposed by the Virginia assembly relating to the right to bear arms. See DUMBAULD, op. cit. supra note 55, at 201. Rhode Island also had initial reservations about the stitution and did not ratify it until May 29, 1790. One of its recommendations stated that "the people have a right to keep and. bear arms" Mating it to the state militia. 1 ELLIOT'S DEBATES 335 (2d ed. 1836).
66. Id. at 421.
67. See Pittman, The Fifth Amendment: Yesterday, Today and Tomorrow, 42 A.B.A.J. 509, 588 (1956) for the opinion that George Mason was the author of the Bill of Rights which Madison proposed. If that is true, we may be doubly certain that the right to bear arms provision was designed to remedy Mason's objections as expressed at Richmond during the ratifying convention.
68. DUMBAULD, op. cit. supra note 55, at 207.
69. Madison to Jefferson in a letter, dated October 17, 1788. 1 LETTERS AND WRITINGS OF JAMES MADISON 421, 426 (1865).
70. 1 ANNALS OF CONG. 749-50 (1789).
71. DUMBAULD, op. cit. supra note 55, at 214.
72. Ibid.
73. Bliss v. Commonwealth, 2 Litt (Ky.) 90, 13 Am. Dec. 251 (1822). As a direct result of this holding and its adverse implications as to public order, the state constitution was amended to permit such legislation.
74. Commonwealth v. Murphy, 166 Mass. 171, 44 N.E. 138 (1896). Prior decisions in accord: State v. Reid, I Ala. 612 (1840); Haile v. State, 38 Ark. 564 (1882); Hill v. State, 53 Ga. 472 (1874); Nunn v. State, I Ga. 243 (1846); Wright v. Commonwealth, 77 Pa. St. 470 (1875). See Robertson v. Baldwin, 165 U.S. 275, 282 (1897) for the statement that the second amendment "is not infringed by laws prohibiting the carrying of concealed weapons." See also Strickland v. State, 72 S.E. 260 (Ga. 1911) for a selective enumeration of State statutes regulating and in part prohibiting the carrying of concealed deadly weapons.
75. See Note, Restrictions on the Right to Bear Arms: State and Federal Firearms Legislation, 98 U. PA. L. REV. 905 (1950).
76. 18 N.C. 574, 107 S.E. 222 (1921). The state constitution provided that "The right of the people to keep and bear arms shall not be infringed."
77. Haight, The Right to Keep and Bear Arms, 2 BILL OF RIGHTS REVIEW 31-33 (1941).
78. 72 Kan. 230, 83 Pac. 619 (1905). Accord, People ex rel. Leo v. Hill, 126 N.Y. 497, 27 N.E. 789, 790 (1891); Aymette v. State, 21 Tenn. 154, 158 (1840): "The single individual . . .is not spoken of or thought of as 'bearing arms."'
79. McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138, 145 (1928).
80. English v. State, 35 Tex. 473, 477 (1872): "The word 'arms' in the connection find it in the Constitution of the United States, refers to the arms of a militiaman soldier, and the word is used in its military sense." See McKenna, The Right to Kee and Bear Arms, 12 MARQ. L. REV. 138 (1928).
81. By the Act of January 21, 1903, c. 196, § 1, 32 Stat. 775, Congress under its authority under Art. 1, section 8 provided that the organized militia of each state would be known as the National Guard unless the state might designate another name. In practice the states have generally adhered to the term "National Guard" to describe their organized militia.
82. 10 U.S.C. § 311 (1964).
83 Although no federal gun control legislation existed prior to the mid-1930's, there were a few earlier federal cases which touched on the second amendment. It was held in United States v. Cruikshank, 92 U.S. 542, 553 (1875) that the second amendment "means no more that that it [the right to bear arms] shall not be infringed by Congress. . . . This is one of the amendments that has no other effect than to restrict the powers of the national government." In Presser v. Illinois, 116 U.S. 252 (1886) the Military Code of Illinois, which prohibited marching with firearms without a license except the regular state militia, withstood a second amendment challenge.
84. 11 F. Supp. 216 (S.D. Fla. 1935).
85. Id. at 219.
86. 307 U.S. 174 (1939).
87. 307 U.S. at 178. (Emphasis added.)
88. 131 F.2d 916 (Ist Cir. 1942), cert. denied, sub nom. Velazuez v. United States, 319 U.S. 770 (1943).
89. See also United States v. Tot, 131 F.2d 261 (3d Cir. 1942), rev'd, 319 U.S. 463 (1943) on grounds not connected with the court's position that the second amendment was 'I not violated by the Federal Firearms Act. stating that "weapon bearing was newer treated as anything like an absolute right by the common law" (ibid), the court went on to declare that the second amendment "was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power." Ibid, citing with approval United States v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935), for the proposition that the right to bear arms was collective.
90. "What country can preserve its liberties if its rulers are not warned from time to time that its people preserve the spirit of resistance. Let them take arms." Jefferson quoted in MILLER, THE CASE FOR LIBERTY 69 (1965). The right of revolution, of course, would necessarily be collective, inasmuch as one individual in revolt does not constitute a revolution. To the extent that the right to bear arms was conceived to be a facet of that right, it logically applied to the body politic of the states, since the national government was thought to be in a similar relation to the states as the Crown had been towards the American colonies.
91. Luther Martin in his letter to the Maryland Legislature describing the events at the federal convention of 1787, rejected the notion that the militia could be better regulated by the general, rather than the state government. "[I]t would be absurd that the militia of the western settlements, who were exposed to an Indian enemy, should either be confined to the same arms or exercise as the militia of the Eastern or Middle States." I ELLIOT'S DEBATES 371 (2d ed. 1836).
92. DIETZE, THE FEDERALIST 281 (1960).
93 "In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights." POUND, THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 91 (1957).
94. Id. at 90.
95. The Virginia Ratifying Convention of 1788 proposed that a Federal Bill of Rights contain the following declaration: "That Government ought to be instituted for the common benefit, protection and security of the People; and that the doctrine of non. resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind." DUMBAULD, Op. cit. supra note 55, at 183. New York wanted it asserted "That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness. Id. at 189. North Carolina recommended a similar guarantee. These were the only proposals in the nature of an assertion of the right of revolution. Madison included a watered down version of that declaration when he proposed a bill of rights to Congress. Both the House and Senate rejected it. Id. at 161.
96. It was not until 1808 that Congress undertook to supply a quantity of arms to the enrolled militia of the states. Act of April 23, 1808 ch. 55, 2 Stat. 490. Prior to that time members of the militia had been required to provide their own arms as prescribed by statute. Act of May 8, 1792, ch. 33, 1 Stat. 271; 1 OSGOOD, THE AMERICAN COLONIES IN THE 18TH CENTURY, ch. 13 (1924). On January 17, 1775, the able bodied male inhabitants of Fairfax County, Virginia, formed themselves into a militia force
until a regular and proper militia law for the defense of the country, shall be enacted by the legislature of this colony . . . and we do each of us for ourselves respectively, promise and engage to keep a good firelock, in proper order, and to furnish ourselves as soon as possible with, and always keep by us, one pound of gunpowder, four pounds of lead, one dozen gun-flints, and a pair of bullet moulds, with a cartouch-box, or powder-horn, and bag of balls.
Resolves of the Fairfax County Committee, reprinted in ROWLAND, LIFE OF GEORGE MASON 1725-1792 427-29 (1892). Note that George Washington served as chairman of the Committee; its resolves were written in the hand of George Mason.
97. Today the overwhelming bulk of equipment, including arms, used to outfit the state militia (state National Guard) is furnished by the federal government under statutes which specify that the arms shall remain the property of the United States. 70 A Stat. 615 (1956); 32 U.S.C. 710(a) (1964). Nevertheless it is recognized that the states can purchase arms for the militia directly from the federal government out of their own funds. Act of February 24, 1897, ch. 310, 29 Stat. 592, 28 CONG. REC. 2933.
98. See Sprecher, The Lost Amendment, 51 A.B.A.J. 554 (Part 1) and 665 (Part 11) (1965). "There exists, then, the possibility that the Supreme Court could determine that the Second Amendment declares a right which may not be infringed by either the Federal Government or by the states." Id. at 666 Mr. Sprecher was referring to the judicial broadening of the fourteenth amendment to protect individual liberties from state encroachment. To the extent that the right to bear arms as used in the second amendment is a state or collective right, his argument would be inapplicable. See also Hays, The Right to Bear Arms, a Study in Judicial Misinterpretation, 2 WILLIAM & MARY L. REV. 381 (1960) for the view that the right involved is possessed by individual citizens.
99. Judge Story observed more than a century ago that the right of the citizen to bear arms has been justly considered "the palladium of the liberties of a republic." 2 STORY, COMMENTARIES ON THE CONSTITUTION 607 (1855). Roscoe Pound has pointed out the utter unreality of that position today. POUND, THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 91 (1957).