Houston Law Review
7 (1969): 1.
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: THE RIGHT TO BEAR ARMS
Ronald B. Levine*
David B. Saxe**
The steady increase in crime and the assassination of political leaders have precipitated much interest in gun control legislation. This, in turn, evoked high levels of criticism. However, at the base of the issue is a constitutional question: the second amendment.
Although the wording of the second amendment is brief, its meaning is subject to a variety of interpretations. Mr. Leaven and Professor Axe begin their interpretation with a lengthy analysis of the historical setting of the second amendment. They analyze the various proposals and writings, as well as the debates, which resulted in the second amendment.
The federal and state cases on the second amendment are discussed. The interpretation of the second amendment from the historical setting is compared with the decisions in the cases, and the authors conclude that the cases have not properly interpreted the second amendment.
The authors then discuss the issue of gun control both in terms of their analysis and in terms of an extension of the case law. They conclude that whether the right to bear arms is viewed as an "individual" or "collective" right of the people, the federal power to regulate the right to bear arms is minimal.
I. INTRODUCTION
Since the recent assassinations of President John Kennedy, Dr. Martin Luther King, and Senator Robert Kennedy, the second amendment has become the subject of great attention and serious misinterpretation.
The first scope of inquiry herein is an examination of the second amendment in the context in which it was written, in 18th Century America. This examination will explore the second amendment as a political document as well as a statement of basic philosophy and principle. The focus will also be on the second amendment in the context of the Bill of Rights and the body of the Constitution.
The second scope of inquiry herein is an examination of federal and state court interpretations of the second amendment and parallel state documents for the purpose of suggesting errors and inadequacies in these interpretations. The article will conclude with a brief commentary on what is felt to be the permissible scope of federal and state gun control regulation.
II. HISTORICAL BACKGROUND
A. The Context
The second amendment states:
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. [1]
Its history is the history of the Philadelphia Convention, the Virginia Ratifying Convention, The Virginia Bill of Rights, the Anti-Federalists, the Madisonian amendments of 1789, and the Bill of Rights. Any reasonable historical analysis must, therefore, consider this contextual setting of the second amendment.
The Constitution was created as a compromise between the centralizing federalism of Hamilton, the peripheral federalism of Gerry, and the less doctrinaire centralism of Madison, with the latter representing the majority position. It is not surprising, therefore, that the Constitution reflects the differences and ambivalence of its various authors. In particular, it reflects the ambivalence with which such moderates as James Wilson and James Madison approached the problem of federal-state relations. This is no more clearly evident than in article 1, § 8, which transfers to the national government powers traditionally reserved to the States, and reserves for the States powers that, in the name of military efficacy, more properly should be left to central control.
B. The Militia ClauseUnder the Articles of Confederation, a document which succinctly upheld the principle of peripheral federalism, the right of the States to an independent and effective militia was clearly established. [2] Under the Constitution, the "organizing, arming, and disciplining"[3] of the militia, the governance of that part of the militia employed in the "Service of the United States,"[4] and the "calling forth the Militia to execute the Laws of the Union"[5] are all part of the enumerated powers of Congress. However, "the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress" are powers specifically reserved for the States. [6] This division in command, in the military sense, was the product of political compromise.
The first compromise was between men like Charles Pinckney, who opted for a fully nationalized militia [7] and those like Elbridge Gerry, who throughout the Convention opposed bitterly even partial transfer of control over the militia from the States. "This power of the United States (military power) . . . is making the States drill sergeants . . . "[8] The nature of this compromise was to create the concept of "temporary nationalization," in which a distinction was drawn between crisis and noncrisis conditions with federal governance of the militia to be determined by the necessity of executing the laws of the Union, suppressing insurrections, and repelling invasions. [9]
The second compromise was between the more moderate elements of the Convention, men like Madison, Mason, and Randolph. They recognized that the viability of both the States and the central government was at stake and that neither could be totally excluded. They further realized that the fate of the Constitution itself would ultimately rest on the skill with which they balanced competing claims. Madison and Ellsworth, who were fully committed to a stronger national government, clearly recognized that full nationalization of the militia would jeopardize the integrity of the States and the possibility of ratification. "The whole authority over the Militia ought by no means to be taken away from the States whose consequence would pine away to nothing after such a sacrifice of power."[10] "States might want their militia for defense . . . and for enforcing obedience to their laws . . . They will not give up on this point."[11] As finally decided, the States were granted the powers of appointment and training of the militia, and the "right to exist" of the State militias was recognized by creating the basis for a specifically national army. [12]
The militia clause, in the form of its final adoption, was reported from committee on August 23, 1787, and was subject to several unsuccessful but nonetheless important and prophetic state-supportive amendments. One such amendment proposed that federal power to organize and arm the militia be limited to times of national service. Ellsworth proposed a second amendment which would have left all supervision in state hands. "These failed; but their proponents were probably more sensitive to public opinion than the majority, because it turned out that the militia provisions were one of the most vulnerable points of attack in the public debate on the Constitution."[13]
The Anti-Federalist opponents of the Constitution typified the militia clause in the ratifying conventions as an example of the over-awing centralism of the proposed system of government. Luther Martin’s Genuine Information typified this extreme position. It conjured up the spectre of a diabolical Federalist plot to destroy State governments, and pictured Congress marching the entire militia of Maryland to the remotest part of the Union. While this represented a rather gross distortion of the Convention's intent, the Anti-Federalists succeeded in convincing even proponents of the militia clause, both for reasons of principle and expediency, that they bad gone too far, thus paving the way for the second amendment. [14]
C. The Second AmendmentIt was in the Virginia Ratifying Convention that the real impetus to amendment began. There, Patrick Henry and his colleagues launched a broadside on article I, § 8, charging that federal authority to arm and discipline the militia created the power to destroy the militia. "If they neglect or refuse to discipline or arm our militia, they will be useless: the state can do neither-this power being given exclusively to Congress. [15]
Madison and Randolph responded that the authority to discipline was concurrent. But this argument was rejected by Henry and the majority of the Virginia Convention, which concurred with George Mason's conclusion:
I wish that in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single objection, I would agree to this part, as I am conscious the government ought to have the power. [16]
The Virginia Ratifying Convention should not be considered unique in its response to the militia clause. Maryland had preceded Virginia in expressing the fear that the power to arm and discipline might be used as a pretext for military government. The second Pennsylvania ratifying convention asserted the right of concurrent state power to arm and discipline the militia in the event of federal neglect or malfeasance. [17] But the Virginia Convention may be considered the focal point of Anti-Federalist activism and the most articulate source of opposition to the unamended Constitution; it should also be considered as part of a larger movement of opposition, which included powerful and prominent forces throughout the nation. [18]
Article 17 of Virginia's recommended bill of rights was based upon the Virginia Bill of Rights, which stated:
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. [19]
The Virginia proposal, however, went one step further by recommending "[t]hat each state shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. [20]
On June 8, 1789, Madison introduced in Congress a series of amendments taken largely from the recommendations of the Virginia convention. These amendments included not only guarantees of individual freedom from federal encroachment, but from State violation as well. But individual freedom from State oppression was not really a majority concern. Rather, it was the tendency toward a consolidated government and the failure of the Bill of Rights to fully prevent this. It was increasingly the rights of the States, not those of individual citizens, which preoccupied men such as Richard Henry Lee. "He conceded that some valuable rights were set forth in the amendments, 'but the power to violate them to all intents and purposes remains unchanged."[21] He especially viewed the Constitution's commitment to the creation of a standing army as a major threat to the integrity of the States. [22]
Ultimately, the Senate rejected that amendment which Madison regarded as most important, the one that prohibited State violation of the enumerated personal liberties guaranteed in the body of the Bill of Rights. [23] However, it accepted verbatim Madison's militia amendment, which he adapted from the Virginia recommendations. In its adopted form, the second amendment neither stated that the power to discipline is concurrent, nor granted the States the right to arm and organize their militias in the absence of federal action. [24] In this sense, the second amendment represented a step away from the clear-cut statement of State military prerogative of the Virginia proposals.
Still its ideological significance is clear: it is a resounding statement of the sentiment that the states ought to have significant and traditional governing functions of which they cannot be deprived by the national government. Indeed, the militia clause and the Second Amendment together are one of the most definite and precise statements to be found in the whole Constitution of the federal guarantee of the continued existence and integrity of constituent governments. [25]
This view is supported by Madison's and Randolph’s interpretations of the militia clause, which rejected Henry's federal conspiracy theory, and maintained that there remained to the States the concurrent power to discipline the militia. [26] As to the second amendment, this view is given credence, if not substantiated, by the Militia Act of 1792, which upheld the second amendment's implied peripheralism. This view is further substantiated by that portion of the second amendment's language which is directly borrowed from the Virginia proposals.
Thus, it can be stated that the second amendment clearly indicates acceptance of the Virginia view that a well regulated militia is the natural guarantor of the safety of a free state. There appears to be no argument in this regard. The real point of contention is how much of the rest of article13 of the Virginia proposals Madison intended to incorporate with "the right of the people to keep and bear arms." Since the Senate rejected Madison's proposed extension of the Bill of Rights to guard against state encroachment of individual liberties, "the right of the people to keep and bear arms" must not be a totally uninfringable individual right,
However, a fundamental problem persists. If the Senate rejected the effort to extend individual rights to the full penumbra of state and federal citizenship, then would it have allowed the phraseology of "the right of the people to keep and bear arms" to persist if it were intended as a device to mandate responsibilities onto the shoulders of the States? [27] Or to put the case somewhat differently, does not the clear rejection by the Congress of infringement on State discretion discredit any effort to find in the right of the people "to keep and bear arms" the authority by which the States may claim the right or duty to maintain a militia in the face of federal inaction or excessive co-optation (even if this may have been Madison’s intention)? That is, if the individual has a right to keep and bear arms which cannot be violated by the National Government, then should it not be reasonable to conclude that the second amendment serves to protect the individual’s right to have a viable, citizen-dominated militia? Does not the conclusion exist, arrived at through the logic of "negation," that "the right of the people to keep and bear arms" may not be as firm a commitment to an independent militia as exists in the Virginia proposals?
The rejection of the Bill of Rights as the protector of the sanctity of the individual in his state citizenship, and the rejection of the Virginia companion amendment which would have granted the States the power to arm and organize their militias in the event of federal inaction, indicate that the majority sentiment of Congress was against viewing the second amendment as an abrogation of the congressional power to organize, arm, and discipline the militia. [28] Furthermore, these two acts of rejection taken together appear to eliminate any basis for the contention that the second amendment inhibits the power of the States to regulate the possession or transportation of guns. Such a contention is founded on the belief that because the State militia exists to maintain the security and the freedom of the state, it also confers upon the individual a duty to the state which the State government may not transgress. However, since the companion rider to the Virginia Bill of Rights, article 13, was rejected by the Congress, the theory that the individual has an uninfringable duty to maintain, arm, and organize the militia for the state is weakened; the theory of total uninfringability is destroyed when protection of state citizenship rights is rejected. Thus, even if the original draft intended that the "people" were to fill the breach created by the nullification of any State right to independently arm and organize the militia, the State would still have the right to regulate the keeping and bearing of arms, Therefore, one cannot read the second amendment as a guarantee of individual rights, at least insofar as state citizenship is concerned. "The people must be treated as a "collectivity" in this arena. However, this does not preclude viewing "the people" as "individuals" in the federal arena.
The contention that the second amendment is a mandate on the States to maintain a "well regulated militia," and that where such controls are not forthcoming, the federal government has the right and duty to intervene to protect the individual from State negligence is a specious reading of history. There is no reasonable way to view the second amendment alone, or the Bill of Rights in its entirety, as in any way creating new avenues of federal power. The Bill of Rights, irrespective of their obvious circumspection, ambiguity, and perhaps deliberate incertitude, are to be viewed as vehicles of limitation on centralizing federalism. They are certainly not to be viewed as creating new federal prerogatives. Madison states this Point in a letter to Jefferson. "My own opinion has always been in favor of a bill of rights . . . provided it be so framed as not to imply powers not meant to be included in the enumeration."[29]
D. The Meaning of the Second AmendmentThe beginning of any conclusions from the historical perspective emerges from a consideration of the specific wording of the Virginia Bill of Rights. The key phrases are:
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 . . . [30]
The avoidance of standing armies in time of peace is offered as a hope, not a command, that the sanctity of the States shall not be jeopardized by the existence of a peacetime national professional army. The dictum 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, "[31] constitutes a rejection both of national incorporation and professionalization of the State militias. Thus, there is a simultaneous rejection of standing peacetime armies with the commitment of "the body of the people" as the troops of the militia. The "body of the people" may be read as a "representative cross-section of civil society." The intention was to avoid the formation within the States or the nation of professional military clique which might threaten civilian authority.
The obvious difficulty with this interpretation is that once again one has to contend with congressional rejection of the federal-state concept of the Bill of Rights proffered by Madison. This complicates the simple picture of the second amendment as a barrier to state actions aimed at professionalizing State militias. Nonetheless, the second amendment can be viewed as a declaration that the Federal Government can never fully nationalize all the military forces of this nation, that there must always remain an essentially civilian-manned and oriented set of military forces in the nation, the respective State militias.
Conclusions formed are these: The second amendment is a statement of three objectives or principles: (1) To inveigh against federal professionalization of the State militias; (2) to offer the concept of a citizenbased militia as a defense for the States against a national professional army; (3) to proclaim the right of the States to a responsive instrument of coercion power.
In this reading of history, "the keeping and bearing of arms" becomes the means by which the States can lay claim to legal justification for resistance to "professionalization." It was apparently in keeping with this principle that the Knox Plan was rejected in the final version of the Militia Act of 1792. [32] This plan implied a kind of national cooptation to make the militia a part of a standing army and a standardization that had all the earmarks of "professionalization." Thus, the second amendment (and the Bill of Rights) may be read as a guardian of States rights opposing federal encroachment, and of individual rights opposing federal regulation, but not as an instrument of interposition between the individual and the State (unless in the most peripheral of fashions). In other words, whatever individual rights the individual secures he must potentially share with his State government.
E. Madison and Federalist XLVMadison’s Federalist XLV [33] maintained that no standing national army could ever be large enough to overcome State militias founded on an armed citizenry and officered by men chosen by, and loyal to, the States. It is in an armed citizenry that freedom from tyranny is found. Where the people are not armed, tyranny and despotism take firm hold. Where the people are armed and in control of their own local and State governments and militia this threat is chimerical. [34]
The most important protection against despotism is to be found in citizens with arms in their hands . . . officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."35 The whole import of the Madisonian posture is that the States and the people are united in a common bond against federal encroachment. Madison confers on the States the right to unite and control their militias when the federal government poses a threat; further, he seems to imply, especially in his discussion of despotism, a general state right of concurrent control over the State militias.
If the Madison of Federalist XLV is also the Madison of the second amendment, and the phrase -being necessary to the security of a free state" suggests that he is at the very least dealing with the same general issue, the threat of despotism to federal and State governments and the people, then the second amendment may quite simply be read as establishing an armed citizenry and a State-oriented militia as the essential elements of a defense against federal encroachment. Thus, it was an armed citizenry that Madison saw as the protection against a professional standing army. However, this view still leaves the issue of state control over an "armed citizenry." But, as previously noted, the same Congress that passed the second amendment rejected the view that the Bill of Rights serves as a limitation on state power to control the citizen.
But what of the question of how Madison visualized the relationship between the armed citizenry and the militia? At the point of federal encroachment, the armed citizenry and the militia become one. From the citizenry come the rank and file of the militia as well as the officers; from the State government come direction and coordination. [36]
In 1789, when Madison wrote about an armed citizenry, he wrote of "near half a million of citizens with arms in their hands."[37] When he wrote about the maximum size of a national standing army, he said that it could not exceed "one twenty-fifth part of the number able to bear arms . . . more than 25,000 or 30,000 men."[38] His estimate of near half a million armed citizens, therefore, would include 60 percent to 70 percent of those capable of bearing arms. The State militias taken in toto clearly would not have added up to this figure, and they certainly wouldn't have had 500,000 guns. Thus, to get this many men quickly into arms, Madison must have had in mind virtually all males, as potential or auxiliary members of the militia. Thus, Madison must have had in mind a general right of the citizenry to keep and bear arms, a right which he did not feel was threatened by the States, and which he therefore did not feel needed protection by the Federal Government. [39]
By two different routes the following conclusions emerge:
1. Madison intended the second amendment to be neither a limitation on the States nor an augmentation of federal power.
2. Madison did intend an "armed citizenry" to be the ultimate bastion of a free state.
3. Madison did intend the second amendment to be a limitation on the Federal Government: First, by limiting its powers to concurrently arm and organize the militia; second, by limiting its ability to become despotic by preventing it from disarming the populace. While Congress accepted the second limitation, it rejected the first one.
III. FEDERAL ANALYSIS OF THE SECOND AMENDMENT
The United States Supreme Court has decided only four cases dealing directly with the second amendment. The leading case of United States v. Cruikshank [4O] involved a prosecution under The Enforcement Act of 1870. Two counts of the indictment alleged a conspiracy to deprive Negro citizens of their civil rights by denying them their constitutional right to bear arms. The Court held that these counts of the indictment were defective because the right to bear arms for lawful purposes is not a right, which is granted by the Constitution. [41] The Court stated:
The second amendment declares that it shall not be infringed; but this . . . means no more than that it 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, leaving the people to look for their protection against any violation by their fellow-citizens of the right it recognizes, to what is called [internal police control]. [42]
In Presser v. Illinois[43] the Supreme Court was confronted with an Illinois statute forbidding: (1) Any association of citizens for the purpose of being a military organization, and (2) the parading with arms or drilling without a license; such acts were valid, though, if done by the organized volunteer militia. The Court upheld the statute, stating that it did not infringe on the people's right to bear arms. [44] Although basing its decision on Cruikshank and adopting the interpretation that the second amendment restricts only the Federal Government, the Court seemed to extend the restriction to the States:
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, 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 resource for maintaining the public security, and disable the people from performing their duty to the general government.[45]
In Miller v. Texas [46] the Supreme Court sustained a State statute prohibiting the carrying of dangerous weapons on the person. The Court cited Cruikshank, and stated that the second amendment applies only to the Federal Government, not the States. [47]
The constitutionality of the National Firearms Act of 1934 was at issue in United States v. Miller. [41] The Court sustained the Act to the extent that it restricted the use of sawed-off shotguns. [49] For the first time, the Court was confronted with the problem of resolving the extent of permissible congressional firearm legislation with the second amendment. The Court declared:
In the absence of any evidence tending to show that possession or use of a "shot gun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any, part of the ordinary military equipment or that its use could contribute to the common defense. [50]
Prior to United States v. Miller, a federal district court had affirmed the constitutionality of The National Firearms Act. [51] The court said:
The second amendment . . . has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act It refers to the militia, a protective force of government; to the collective body and not individual rights. [52]
A conviction under The Federal Firearms Act of 1938 was affirmed in United States v. Tot. [53] Besides relying upon United States v. Miller, the court examined the historical discussions surrounding the adoption of the second amendment. It noted that the discussions pointed out that the second amendment was not adopted with the rights of the individual citizen in mind, unlike the amendments protecting speech and religious exercise." Rather, the second amendment was adopted "as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power."[55] The court specifically upheld restrictions against the receipt of weapons through interstate commerce by those persons who have demonstrated that they are "aggressors against society."[56] This was not an infringement on the second amendment mandate of a well regulated militia, but instead was reasonable legislative classifications constitutionally unobjectionable. [57]
In Cases v. United States [58] a constitutional challenge to the Federal Firearms Act [59] was again rejected. In doing so, however, the court clearly evidenced its disagreement with the test set forth in United States v. Miller. In "shooting-up" a night club and a friend of his, the defendant in Cases was found to be in no way advancing his military training or using his weapon for military purposes. [60] The court declared:
In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state. [61]
The court found the "reasonable relationship" test of United States v. Miller to be outdated, in part due to the recognition of World War II "Commando Units" where some military use was found for almost every type of deadly weapon. [62] The court stated:
In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. [63]
To reason otherwise would mean that the second amendment limitations would become absolute, a view which the court rejected. [64] If the reasoning in United States v. Miller were followed, Congress could be prevented from regulating the possession or use by private citizens of "distinctly military arms," even though it would be preposterous to assume that a private citizen might have legitimate reasons for possessing such a weapon. [65] The court therefore, preferred that each second amendment case "be decided on its own facts and the line between what is and what is not a valid federal restriction pricked [picked?] out by decided cases falling on one side or the other of the line."[66]
IV. THE STATES AND THE SECOND AMENDMENT
The proposition in Barron v. The Mayor and City Council of Baltimore [67] that the first ten amendments does not apply to the States has been severely eroded through the selective incorporation doctrine; most of the rights guaranteed by the Bill of Rights have been held to be binding upon the States through the fourteenth amendment. [68] Nevertheless, the Supreme Court has held that the second amendment does not apply to the States; this is also true despite the due process clause of the fourteenth amendment. [69] This raises the question as to what extent the States are restricted from controlling the right to keep and bear arms. Generally, State constitutions should control the answer. [70]
There have been many State court decisions construing the right to keep and bear arms; most of these decisions were considered in the context of State gun control regulation. However, no uniform rule of permissible and nonpermissible gun control legislation can be stated, since the State constitutional provisions regarding the right to keep and bear arms often differ in language and context from each other, as well as the second amendment. Still, these State court decisions are important because many of the State constitutional provisions being construed are quite similar to the wording of the second amendment.
Only one State court has held that the right to keep and bear arms is unqualified. In Bliss v. Commonwealth [7l] a concealed weapons statute was invalidated as being repugnant to the State constitution; the court held that the right to bear arms is absolute. [72]
In the great majority of jurisdictions, where the right to keep and bear arms is interwoven with the concept of a well-regulated militia, the courts have generally held that to be given protection under the word "arms" the weapons must be one adopted in civilized warfare and must be used so as to train its holder with its ability in time of want. [73] Thus, if the weapon is adopted for use in civilized warfare, the right of the individual citizen to keep, bear, and use such arms for the maintenance of internal order is a constitutionally recognized right; however, this is subject to reasonable regulation of the manner and the time of carrying such weapons.
The regulations of the manner and mode of carrying arms has been aimed at the carrying of concealed weapons. Regarding a contention that such a regulation violated a constitutionally protected right, a Massachusetts court said:
The protection of a similar constitutional provision has often been sought by persons charged with carrying concealed weapons, and it has been almost universally held that the legislature may regulate and limit the mode of carrying arms. [74]
The validity of reasonable gun legislation has been predicated upon two lines of reasoning. First, such restrictions are to be construed in the context of the origin of the State constitution, and the public need for weapons in maintaining a well organized and regulated militia. [75] Second, the right to bear arms is to be viewed as connected with the police powers of the State, and as such subject to legitimate regulation thereunder. [76] As the court in Strickland v. State declared:
Where a state constitution in terms provides, in connection with the right to bear arms, that the state may regulate this right, or may regulate the manner of bearing arms, these words expressly recognize the police power in direct connection with the constitutional declaration as to the right. But even where such expressions do not occur, it has been held that the different provisions of the Constitution must be construed together, and that the declaration or preservation of certain rights is not to be segregated and treated as arbitrary, but in connection with the general police power of the state, unless the language of the instrument itself should exclude such a construction. Thus, if the right to bear arms includes deadly weapons of every character, and is absolute and arbitrary in its nature, it might well be argued, as it was in earlier days, that the citizen was guaranteed the right to carry weapons or arms, in the broadest meaning of that term, whenever, wherever, and however be pleased, and that any regulation, unless expressly provided for in the Constitution, was an infringement of that right. The ruling that the Legislature may prohibit the carrying of concealed weapons essentially concedes the police power of regulation to some extent. If this be conceded, the question then becomes one as to whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts in effect, to a deprivation of the constitutional right. [77]
Some State gun control legislation has been overturned because certain State constitutions seem to express the view that the right to keep and bear arms is not related to the collective concept of a well-regulated militia, but instead is a right that inures to the individual. [78] This view has been expressed in some recent [79] as well as older [80] cases. But other State courts have disagreed with the "individual right" interpretation. The leading case expressing disagreement is City of Salina v. Blaksley. [81] The court, in sustaining a conviction under a statute that prohibited the carrying of pistols, interpreted the term "people" as used in § 4 of the Kansas Bill of Rights as referring to the collective body and not to the individual. [82] Other courts have reasoned similarly. [83]
The differences in the State cases on the right to keep and bear arms make it difficult to state any definite conclusion. However, it may be generally stated that the right to bear arms has been viewed in a military context, referable to the organization and maintenance of State militias. This proposition will be subsequently discussed.
V. SUGGESTED INTERPRETATIONS OF THE SECOND AMENDMENT
Based upon the historical analysis of the second amendment and the analysis of Federal and State court decisions interpreting it, it is submitted that the courts have failed to properly recognize the individual right to keep and bear arms. What the courts have recognized is a collective right of keeping and bearing arms, from which they have evolved two variations. The first speaks of a collective right of the people to keep and bear arms as part of a well regulated militia. The second speaks of the collective interest of defense versus military attack as the sole basis of individual possession of firearms. Both of these views are inadequate.
The second amendment did not grant any concrete powers to the States over their militia which they were not already granted by Article 1, § 8. The second amendment was: (1) A denial to the Federal Government of the power of total co-optation and professionalization and (2) a clear grant to the individual citizen of the right to keep and bear arms.
However, since the courts have interpreted the second amendment in terms of collective rights and interests, an analysis of the nature of that "collectivity" would appear to be helpful. The important question is whether it is civil society or political society which is the recipient of these rights. If it is the political society, then why does the Bill of Rights use the words "the people" and "the State" as if they are separable concepts? [84] The only way one can read the second amendment as conferring exclusive power on the States is if one reads "the people" and "the State" as interchangeable terms; and this appears to be rejected by the usage in the tenth amendment, the Articles of Confederation, and the Virginia Declaration of Rights.
Even if one did accept this "interchangeable"theory, one would still have to contend with a serious problem. One would be left with a reading of the second amendment, conferring to the States the right to keep and bear arms, as a political instrumentality entitled to defend itself. The ratifying Congress clearly rejected a proposal which would have granted the States a concurrent power to arm, organize, and discipline a militia. It is, therefore, doubtful that they would have passed the second amendment bad they read it as conferring such a power. Likewise, Madison, apparently had no such intent in mind.
Thus, if the second amendment was not intended as guaranteeing to the States the right to independently arm and organize a well regulated militia, then it is reasonable to assume that the second amendment was designed to limit the Federal Government's right to control the keeping and bearing of arms. However, as will be discussed shortly, if the second amendment was designed to protect civilian control of State militias, and to weaken or avert any drive to nationalization and professionalization of State militias, then the only limits imposed on the Federal Government are imposed by the concepts "nationalization" and "professionalization." Since the National Guard appears to violate both of these implied limits—by its integration into the United States military establishment, and by its history of subjecting State Militias to professional leadership and controls-the right of the individual to keep and bear arms becomes the only device left, short of totally changing the modem National Guard, by which to maintain the principle of a civilian, nonprofessional military power in the United States.
Any reading of the second amendment which would conclude that the States are granted the power to maintain a well regulated militia, and that they therefore are granted the right to have armed militiamen, would suffer from the reality that our present National Guard Statute"[85] confers upon the Federal Government the daily power to evade this supposed power; further, this reading would suffer from the fact that under article 1, § 10, paragraph 3, Congress may prevent the States, in times of peace, from keeping troops.
The second amendment speaks of both "militia" and "the people." Therefore, as to any federal right to regulate arms, it becomes important to discuss who is free, by reason of the second amendment, from such gun control.
The States as a political body have been rejected as having any independent right to arm a militia. However, if the militia includes all able-bodied men, as Madison apparently felt, then it may be that this group would be free from federal gun control by virtue of the second amendment.
Another important question is who are "the people" of the second amendment. Although "the people" may have originally meant the entire able-bodied white male population, "the people," given subsequent amendment and court interpretation, must now. Include women, Negroes, poor, non-property owners, and debtors. Thus, most individuals now entitled to vote are properly included in "the people" of the second amendment.
It is felt, though, that the term "the people" always had normative connotations, and was never value-neutral. If this be true, it would appear that when the people were given the right to keep and bear arms, only qualified people were intended as beneficiaries. By qualified people, Locke, Madison, and Jefferson appear to have meant those citizens most "tuned in" to the objective laws of politics or of Nature. All would have excluded children, women, the propertyless, and slaves from at least some of the prerogatives and responsibilities of "the people." All most certainly would have excluded criminals, anarchists, and insurrectionists. It can be noted, then, that if this view be held (though "the people" would now include women, the propertyless, and Negroes), it would furnish a basis for sanctioning federal gun regulation of criminals, anarchists, and insurrectionists. [86]
It is felt that "the people" of the second amendment is roughly equivalent to "civil society," and, therefore, separable from the concept of government. It is they, who are the recipients of any collective rights and interests. However, there exists no concrete and regular basis for distinguishing between the individual and civil society.
The traditional mode of distinction of political science has been the individual, civil society, and the political community. The major issue has been distinguishing between government, society, and citizen. Terms such as "general will," "community interest," and. the "general welfare" have been used to identify the difference between individual needs and the purposes and needs of the social unit, the community. John Locke, in dealing with the issue of "sovereignty," distinguished between "ultimate" and "daily" sovereignty. [87] This suggested a substantial but not complete coalescence of "community interest," as defined by the terms "the people" and "government." Hence, for Locke, "the people" as a collectivity are not coterminous: with the state as a political organization, since they may differ as to the nature of the "Public interest." As one of the major influences on the American Revolutionaries and the framers of the Constitution, it is likely that the Lockian distinction was known and accepted. In justifying the right of revolution in the Declaration of Independence and On Rebellion, Jefferson clearly maintains this distinction "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government. … [88]
Accepting that "the people" therefore exist apart from political society, there is still the question of the nature of their existence and operation. The people as a "collectivity," separable from government, can be held to exist only to the extent that one posits the existence of some higher will or purpose to which the community ought to be directed. Otherwise, there exists no way of distinguishing between the legitimate and illegitimate claim of the people. Without a "public interest" to define the permissible range of behavior open to the people, one ends up with an aggregate of individual interests which makes the concept of "collectivity" (as separable from governmental majority or from the individual) a nullity.
It is felt that there is a "public interest" to govern the possession and bearing of arms by the people. It is for political and military reasons that the right to bear arms exists. Madison, in Federalist XLV, speaks of both "despotism" and "external military threat" as the justification for personal possession of guns. Of course, having established the public interest for a collective keeping and bearing of arms by "civil society" does not answer the question of who is to police "civil society."
In the area of "despotism" the answer is clear. The Federal Government cannot police civil society's right to keep and bear arms insofar as they are intended as protection against political despotism, as well as a second line defense against external or internal military threat. The State power to "police," of course, remains unaffected by this line of reasoning.
Therefore, the view of the Supreme Court that the second amendment confers either a new military power on the States, or that it confers simply a right of the individual to add to the military power (potentially or actually) of the States must be rejected. The second amendment confers a political as well as a military right. Even accepting the "civil society" collectivity theory, this is still true since there is no policing power of the Federal Government which can abrogate this role of the individual.
How then is the political society to be protected against the tyranny of an armed citizenry? Madison gives the general answer in Federalist X when he discusses the remedy for factionalism. The answer is to be found in a federal republic which checks interest with interest, and complicates the task of communication and coordination of the military or political malefactor by geographic dispersion and a three-tiered government. [89]
Thus, whether the second amendment confers individual rights, as herein urged, or "collective" rights, as discussed by the cases and extended herein, the basis for federal regulation would have to overcome very serious obstacles. If the second amendment confers individual rights, federal regulation of the individual's right to bear arms would seem to run directly counter to the second amendment. If the second amendment confers "collective rights", and civil society has a right to protect itself against a foreign force and against its own government when that government is directly the agent of tyranny, or indirectly through inaction the agent of anarchy, then any federal regulation would have to contend with these rights.
FOOTNOTES:
* Lecturer in Philosophy, The City University of New York, A.B., Columbia College; Ph.D. Candidate, Columbia University.
** Assistant Professor of Law, The City University of New York A.B., Columbia College; J. D. Case Western Reserve University. Member New York and Ohio Bars. Associate: Emile Z. Berman and A. Harold Frost Att’ys, New York City.
1. U. S. CONST. amend. II.
2. Art. 6, ¶ 4 provided: "every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred."
3. U. S.CONST. art. 1, § 8, cl. 16.
4. Id.
5. Id. cl. 15.
6. Id. cl. 16.
7. 2 M. FARRAND, THE REECORDS OF THE FEDERAL CONVENTION OF 1787 329-31 (rev. ed. 1937) [hereinafter cited as FARRAND].
8. Id. at 385.
9. See U.S. CONST. art. I § 8, cls. 15, 16.
10. FARRAND, supra note 7, at 331.
11.W. Riker, SOLDIERS OF THE STATE 15-16 (1957) [hereinafter cited as Riker].
12. See U.S. CONST. art. 1, § 8, cls. 12, 16.
13. RIKER, supra note 11, at 16.
14. Id.
15. Id. at 17.
16. Id. at 18.
17. 2 J. Elliot, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 545-46 (2d ed. 1836)
18. See generally R. Rutland, THE BIRTH OF THE BILL OF RIGHTS,1776-1791 134-58 (1955) [hereinafter cited as Rutland].
19. Virginia CONST. art. 1, § 13.
20. 3 J. ELLLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 660 (2d ed. 1836).
21. RUTLAND, supra note 18, at 214.
22. Id. at 139.
23. Id. at 212.
24. RIKER, supra note 11, at 18.
25. Id.
26. Id. at 16.
27. See generally, M. Forkosch, Who Are the "People" in the Preamble to the Constitution? 19 CASE W. RES. L. REV. 644, 698 (1968).
28. See U.S. CONST. art. 1, § 8, cl. 16.
29. RUTLAND, supra note 18, at 192
30. VIRGINIA CONST. art. 1, § 13.
31. Id.
32. RIKER, supra note 11, at 18-19.
33. A. HAMILTON, J. JAY & J. MADISON, THE FEDERALIST 262-63 (rev. ed. 1901) [hereinafter cited as THE FEDERALIST].
34. Id.
35. Id. at 262.
36. Id.
37. Id.
38. Id. 25,000-30,000 multiplied times 25 yields 625,000-750,000 men able to bear arms in the United States.
39. "[The federal government’s] schemes of usurpation will be easily defeated by the State governments, who will be supported by the people." Id. at 263.
40. 92 U.S. 542 (1875).
41. Id. at 553.
42. Id.
43. 116 U.S. 252 (1886).
44. Id. at 264-65.
45. Id. at 265.
46. 153 U.S. 535 (1894).
47. Id. at 538.
48. 307 U.S. 174 (1939).
49. Id. at 178.
50. Id.
51. U.S. v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935).
52. Id. at 218-19 (emphasis added).
53. 131 F.2d 261 (3d Cir.1942), rev’d on other grounds, 319 U.S. 463 (1943).
54. 131 F.2d at 266.
55. Id. If this were true, then why did the ratifying convention reject an amendment that would have given the States a "concurrent" right to arm and organize? The framers gave the States a vague power, while giving the individual a more specific power. Or, they give the individual the right to keep and bear arms in order to water down State power. Since, however, only the Federal Government was prohibited from regulation, the States ended up with the power to protect themselves from their own citizens, without any real increase in federal control over their militias.
56. Id.
57. Id.
58. 131 F.2d 916 (1st Cir. 1942), cert., denied sub nom. Velazquez v. U.S., 319 U.S. 770 (1943).
59. Act of June 30, 1938, ch. 850, § 2, 52 Stat. 1250. The Federal Firearms Act was repealed and superceded by the Omnibus Crime Control and Safe Streets Act of 1968. See 15 U.S.C. § 922 (1968).
60. 131 F.2d at 922-23.
61. Id. at 923.
62. Id. at 922.
63. Id.
64. Id.
65. Id.
66. Id.
67. 32 U.S. (7 Pet.) 243, 250 (1833).
68. Gideon v. Wainwright 372 U.S. 335 (1963); Map v. Ohio, 367 U.S. 643
(1961); Palko v. Connecticut, 302 U.S. 319 (1937); L. Henkin, "Selective Incorporation" in the Fourteenth Amendment, 73 YALE L.J. 74 (1963).
69. See U. S. v, Cruikshank, 92 U.S. 542 (1876).
70. See generally R. Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History, 16 CATH. U. L. REV. 53, 80-84 (1966) for a detailed appendix listing the Provisions of State constitutions dealing with the right to keep and bear arms.
71. 12 Ky. 90, 13 Am. Dec. 251 (1822).
72. Id. at 92, 13 Am. Dec. at 252-53.
73. Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911).
74. Commonwealth v. Murphy, 166 Mass. 171, 172, 44 N.E. 138 (1896).
75. Strickland v. State, 137 Ga. 1, 72 S.E. 260, 262-63 (1911); See Burton v. Sells, 53 N.J. 86, 248 A.2d 521 (1968), which upheld New Jersey's recent gun control statute.
76. Strickland v. State, 137 Ca. 1, 72 S.E. 260, 262 (1911).
77. Id. at 262-63.
78. Kerner v. State, 181 N.C. 574, 107 S.E. 222, 224-25 (1921).
79. See People v. Nakamura, 99 Colo. 262, 62 P.2d 246, 247 (1936); People v. Zerillo, 219 Mich. 635, 189 N.W. 927, 928-29 (1922).
80. See In re Brickey, 8 Idaho 597, 70 P. 609, 101 Am. R. 215 (1902); Nunn v. State, 1 Ga. 243 (1846).
81. 72 Kan. 230, 83 P. 619 (1905).
82. Id. at 620.
83. See People ex rel. Leo v. Hill, 126 N.Y. 497, 27 N.E. 789, 790 (1891); State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840); Aymette v. State, 21 Tenn. 154, 158 (1840).
84. U.S. Const. Amend. X.
85. 10 U.S.C. § 311 (1964); See also Act of January 21, 1903, ch. 196, § I et seq., 32 stat. 775.
86. It would not seem too far an extension of this reasoning to allow federal gun regulation of ex-convicts, at least for a limited period of time after their release from prison.
87. Locke saw "the people" as the ultimate sovereign, while he viewed government as the normal and usual sovereign.
88. DECLARATION OF INDEPENDENCE.
89. THE FEDERALIST, supra note 33, at 50.