THE SECOND AMENDMENT IN THE TWENTIETH
HAVE YOU SEEN YOUR MILITIA LATELY?
Keith A. Ehrman* & Dennis A.
UNIVERSITY OF DAYTON LAW REVIEW
Volume 15, Number 1
* B.A., Stanford University 1978; J.D., University of
California, Boalt Hall 1981. Mr. Ehrman is a member of the San Francisco law
firm of McGuinn, Hillsman & Palefsky.
** B.A., Oberlin College 1973; J.D., University of Virginia
1977. Mr. Henigan is the Director of the Legal Action Project at the Center to
Prevent Handgun Violence in Washington, D.C.
A well regulated Militia, being necesary to the security of
a free State, the right of the people to keep and bear Arms, shall not be
In September of 1989, William Bennett, the Bush
Adminis-tration's Drug Czar who earlier had single-handedly brought about a ban
on the importation of semi-automatic assault rifles, was asked during a
Congressional hearing whether he would recommend a ban on the domestic
manufacture and distribution of assault weapons.2 He responded in the negative,
stating that such action would create "serious constitutional problems."3
The specter of the second amendment was thereby raised yet
again as an impediment to stronger gun laws. The argument is not that Congress
should not, as a matter of policy, enact such laws; rather, it is that Congress
cannot do so because the hands of our elected representatives are tied to the
Bill of Rights. Thus, the National Rifle Association has testified against a
national seven day waiting period for handgun sales because it would require
citizens "to ask police for permission to exercise a constitutional right."4
The argument that the constitution is a barrier to stronger
gun laws has received support in recent years from articles appearing in various
legal publications which conclude that the second amendment guarantees a broad,
individual right to own firearms for lawful private purposes in the same way
that the first amendment guarantees individual rights of free speech, religion,
and assembly.5 These articles, relying primarily on historical analyses of the
origins of the second amendment, generally have asserted either that the
"militia" clause of the amendment does not function to limit the "right to keep
and bear arms," or that the "militia" concept itself expresses the right of the
citizenry at large to be armed.6 One recent writer has suggested that the second
amendment may be "profoundly embarrassing" to persons who support the regulation
of private ownership of firearms. while maintaining their allegiance to the Bill
of Rights generally.7
The thesis of this article is that supporters of government
regulation of private firearms have no reason to be "embarrassed" by the second
amendment. Not only does the amendment erect no real barrier to federal or state
laws affecting firearms, but the best evidence of this is found in the
amendment's historical origins.
Section II of this discussion reviews the historical
material bearing on the original intent of the Framers. This historical anaylsis
reveals that the purpose of the second amendment was to assure the states that,
under the constitution, they would retain the right to maintain an effective,
organized, citizen-based militia. There is no evidence that the Framers
discussed, much less intended, that the amendment provide a guarantee to
individuals of a right to be armed for purposes unrelated to militia service.
Section I also demonstrates that because of historical changes in the state
militia system since colonial times, federal regulation of private firearms
ownership poses no threat to the state militia today, and therefore raises no
serious constitutional issue. Furthermore, the second amendment poses no
obstacle to any state or local gun control legislation. The second amendment was
intended only as a restraint on the federal government--not as a restraint on
Section III of this article, a review of how the courts have
treated the second amendment, finds that the judiciary has consistently
interpreted the amendment exactly as described in Section II. The courts have
repeatedly held to the original intent of the Framers, stressing the "militia"
aspect of the amendment and rejecting the idea that the amendment created a
broad individual right to firearms.
II. HISTORICAL ANALYSIS OF THE SECOND AMENDMENT
A. English Historical Background
1. The Common Law
A central thesis of opponents of strong firearms regulations
is that the old common law of England supports a fundamental, personal right to
be armed.8 There is no dispute that the common law of England was in large part
adopted by the American colonies, or that it was at least highly influential.9
Numerous commentators have confirmed this transportation of common law rights
and liberties across the Atlantic.10 It is highly doubtful, however, that an
absolute right to have arms was one of those rights or liberties. The
predominant, and better view, is that there was no such common law right.11
Those asserting the existence of the right inevitably begin
their argument with the "Assize of Arms," a decree issued by Henry II in 1181,
which stated that every freeman must keep arms suited to his station in life, in
order to aid in the defense of the kingdom.12 Then, in 1285, Edward I passed the
Statute of Winchester, which specified the military obligations of English
freemen.13 These laws marked the beginning of the militia system, as they
required that every freeman not only have arms, but also that he train
periodically and be prepared to bring his own weapons if called upon to defend
The possession of arms, however, was regulated from early
times. In 1328, the Statute of Northhampton15 was passed, and it is commonly
cited as proof that a common law right to "keep and bear arms" never existed.16
The statute provided that no man should "go nor ride armed by night or by day,
in Fairs, Markets, nor in the presence of Justices or other Ministers, nor in no
Several other laws further undercut the claim that such a
common law right existed. First, James I repealed the Statute of Winchester in
1603,18 thus eliminating the special obligations to possess arms, and
simultaneously enacted a requirement that magazines of arms and provisions
should be collected in one place in each county.19 More significant, a law
passed under Charles II in 1670 restricted the class of persons who could even
possess arms.20 The law provided that only noblemen and those who owned lands
worth 100 pounds could keep guns.21
Even the famous English Bill of Rights of 1689 clearly
established that the right to have guns could be regulated by the government. It
provided that "the subjects which are Protestants, may have arms for their
defense suitable to their conditions and as allowed by law."22
As shown above, the law at the time greatly circumscribed
who could possess arms.23 In addition, as discussed in detail below,24 there is
little historical support for the idea that the English Bill of Rights was
attempting to ensure some absolute right of individuals to have arms. Instead,
the focus of this section of the Bill of Rights was a conflict between
Protestants and Catholics over respective roles in the militia and the army.
Furthermore, the English have not hesitated since 1689 to
pass heavily restrictive gun control laws. Indeed, the British have gone far
beyond the Americans in limiting access to firearms, despite the supposed
"common law right" to have guns.25 Thus, "to whatever extent we look to the
English experience for the source of our right to 'keep and bear arms' as a
constitutional principle, we must also see that some people had long established
a measure of control on the 'right' to weapons."26
Finally, Blackstone is frequently cited to support the
theory that there was a broad common law right in England to bear arms. For
example, one commentator states that Blackstone listed the right of having and
using arms for self-preservation and defense among the "absolute rights of
This statement, however, badly distorts what Blackstone said
in his Commentaries on the Laws of England. Although Blackstone included the
right of having arms in his chapter on absolute rights, the right of having arms
is not listed among the absolute rights, but instead among the lesser auxiliary
rights.28 More importantly, Blackstone qualified the right by stating it in the
following terms: "the fifth and last auxiliary right . . . is that of having
arms for their defense, suitable to their condition and degree, and such as are
allowed by law. Which is also declared by the same statute, 1 W. & M. st 2
The statute noted by Blackstone is the English Bill of
Rights of 1689.30 As discussed above, the "right" listed in the English Bill is
2. The Militia and the Army
Beginning with the Assize of Arms in 1181, the militia
system was the dominant military force in England, and remained so until the
mid-1600s.31 There simply had been no real standing army in England until that
time.32 The Assize of Arms and the Statute of Winchester had translated into law
the customary obligations of each freeman between fifteen and sixty years-old to
help defend his country.33 The militia system had worked quite effectively,
defeating the professional armies of Europe on numerous occasions.
With the rise of the Stuart kings during the 1600s, the
conflict between the absolutist, divine right theories of the kings and the
republican tendencies of Parliament and the citizens' was often over the proper
roles of standing armies and the militia.34 The 1600s were marked by the
assertion of vast royal powers by the king, together with the use of large
standing armies to enforce the crown's dictates.35 The kings of the 1600s felt
that the militia was not a fully competent military body, and often took little
interest in mustering and training the militia.36 Instead, these kings focused
on strengthening the army.
The English people, however, had come to view the militia,
composed of common citizens, as the proper form of defense of a free country.37
A standing army was seen as a sign of tyranny, a tool used by an absolutist
ruler.38 The standing army was disfavored for other, more practical reasons: the
cost was enormous,39 resulting in higher taxes;40 soldiers were often quartered
in private homes;41 and soldiers tended to be ruffians and troublemakers,
wreaking havoc when they came into contact with the citizenry.42
In the struggle for supremacy between the King and
Parliament, the fight for control over the militia--the key to military power in
the country--was crucial. The King had traditionally exercised this control, but
in the early 1640s, Parliament attempted to take it away.43 Civil war broke out
in the 1640s, and by 1645, Oliver Cromwell had formed a massive army and used it
to seize power.44 His army was even larger than that of Charles I in the 1620s,
and Cromwell assumed the role of military dictator, overpowering Parliament.45
This period of military rule intensified the English
people's distrust and hatred of standing armies. After Charles II took the
throne in 1660, the army was disbanded and the militia system was fully
restored. The King, however, retained command of the militia,46 and he gradually
began increasing the size of the militia until it reached 16,000 men by 1685.47
Charles claimed he needed the militia for his foreign wars, but Parliament
became uneasy, particularly as Catholics began trickling into the army.
In 1685, James II ascended to the throne. Almost
immediately, he increased the size of the army, until it reached 30,000.
Simultaneously, James II asked Parliament to abandon completely the militia in
favor of a standing army claiming that the militia system was too inefficient to
rely upon.48 Worst of all, James actively fostered Catholicism by rapidly
replacing Protestant army officers and soldiers with Catholics, in clear
contravention of the Test Acts.49 From 1686-88, as the army grew to 53,000, it
became a highly visible and irritating symbol of the monarch's power and his
Catholic bent, and it created widespread fear among Parliament, the gentry, and
the common citizens.50
3. The English Bill of Rights
In 1688, the country revolted at James' political and
religious programs. As a result, James fled. Parliament drafted a
declaration--the Bill of Rights--which embodied its understanding of the proper
relationship between the Parliament, the King, and the people.51 The Bill also
listed fundamental grievances and rights.
The English Bill of Rights is commonly viewed as one of the
predecessors of the American Bill of Rights.52 The Bill reads in part:
Whereas the late King James II did endeavor to subvert and
extirpate the Protestant religion and the laws and liberties of this kingdom by
. . . raising and keeping a standing army within this kingdom without the
consent of Parliament and quartering soldiers contrary to law, by causing
several good subjects being Protestants to be disarmed at the same time when
papists were both armed and employed contrary to law . . . and . . . [therefore]
for the vindicating and asserting [our] ancient rights and liberties . . . [we]
declare . . . that the raising or keeping a standing army within the kingdom in
time of peace, unless it be with consent of Parliament, is against the law; that
the subjects which are Protestants may have arms for their defense suitable to
their conditions and as allowed by law.53
The opponents of gun regulation commonly claim that
Parliament was asserting the absolute right of English citizens to carry arms.54
Some commentators state that James II "disarmed" the Protestants, and that the
right to bear arms was inserted to ensure that a tyrannical monarch would never
again be able to render the citizenry helpless.55
Although the Bill of Rights itself states that James II had
"disarmed Protestants," it is not clear that James II took arms away from the
Protestants. What this phrase was intended to mean is unclear.56
Several commentators have argued that the English Bill of
Rights language does not mean that James disarmed the Protestants in any literal
sense, but instead referred to his practice of replacing Protestants with
Catholics at important military posts and his desire to abandon the militia in
favor of a standing army.57 These actions "disarmed" Protestants in the sense
that Protestants were excluded from participation and influence in the military.
The failure to utilize the militia was crucial to the Protestants because it was
the one organized force that could resist James II's Catholic standing army.
Other commentators have stated that Parliament was not
establishing an absolute right to bear arms, but was responding to the
discriminatory handling of the military.58 Catholics were being given numerous
military posts, while Protestants were being pushed aside in their army and
militia duties. The complaint was not that James II was violating a "right to
bear arms," but that he was restricting arms in a discriminatory manner.59
Still other writers have argued that Parliament was not
claiming for the people some absolute, individual right of self-defense, but
instead the right of Protestants to rise up as a body to defend their rights as
citizens.60 The Bill was set out to assert the right of the Protestants to
protect themselves from persecution by their Catholic enemies.
Regardless of the validity of any of these particular
interpretations, any claim that the English Bill of Rights established an
absolute, individual right to bear arms is completely undercut by the
qualification placed on the right: "suitable to their conditions, and as allowed
by law."61 These words show that arms-carrying is subject to governmental
regulation. Indeed, such regulation existed at the time of the Bill of Rights62
and has occurred frequently in England since 1689.63
The English Bill of Rights had a strong influence upon the
American colonists, and it is unfortunate that the meaning of the "right of
Protestants to have arms" is so unsettled. The historical evidence does not
suggest, however, that the English Bill of Rights established an individual
right to use arms for any lawful purpose.64 In light of the historical context
of the Bill, and the absence of a broad common law right to carry arms before
1688, the most supportable interpretation is that the Bill constituted a
restatement of the preference for militias over standing armies, and of the
right of Protestants to participate as military members.
B. The Colonial Experience
English law traditions and political thinking were passed on
to the American colonists. A part of this carryover included the preference for
a militia system and the dislike of standing armies.65 Events in England in the
seventeenth century had fostered the belief that standing armies went
hand-in-hand with oppressive government, and that a militia was the proper
defense for a free state.66
When George III sent British troops to America in the 1760s,
they were the first professional troops to be stationed in the colonies.67 As
George III and Parliament began imposing the burdensome taxes and laws which
would eventually lead to the American Revolution, the King sought to compel
obedience to his dictates by means of the army.68 The colonists found the
presence of these troops during peacetime disturbing and were outraged by the
use of these troops to enforce George III's oppressive laws.69
Numerous objections sprang from the use of a standing army
and military rule: the quartering of troops in private homes; the
court-martialing of citizens; the independence and superiority of military power
over civil power; and the seizure by British troops of colonial militia arms and
ammunition.70 The tactic of disarming the militia, in fact, led directly to the
first real battle of the Revolutionary War, when British troops attempted to
seize militia arms stored in Lexington in 1775.71
The colonists' English heritage had taught them that
standing armies were the instruments of tyranny and were acceptable only under
extraordinary circumstances; the militia was the proper body to provide for the
defense and safety of the people in a free society. As the Revolutionary War
grew near, the actions of George III simply reinforced this view.72
C. State Declarations and Constitutions Prior to 1787
As war with England started, the colonies held conventions
in order to establish new state governments. State constitutions were drawn in
twelve colonies.73 Eight of these included a Bill or Declaration of Rights as a
part of the constitution, while the other three contained textual guarantees.74
The Declarations were aimed at restricting governmental power in the same way
that the English Bill of Rights restricted the King and Parliament.75
These state constitutions, adopted before the federal
Constitution of 1787, had an important influence on both the 1787 Constitution
and the federal Bill of Rights.76 This is evident from a comparison of the
language in each.77
Each of the original twelve state constitutions discussed
some aspect of the military. Four included a right to bear arms,78 though only
one provided for a right to keep arms. Several state Declarations stressed,
among other things, the role of a militia as the proper and safest defense of a
free state; the dislike of a standing army; and that the military power should
be subordinate to the civil power.79
The Virginia Declaration of Rights,80 adopted as a part of
the Virginia Constitution in June 1776,81 was the most influential of the
Declarations.82 There were several reasons. Most importantly, the Virginia
Declaration of Rights was the first one adopted, and it served as a model for
the other states, many of which used Virginia's language verbatim.
The influence of the Virginia Declaration of Rights on the
eventual federal Bill of Rights is apparent in other respects. Though George
Mason drafted almost the entire Virginia Declaration of Rights, James Madison,
the eventual author of the federal Bill, was a member of the Virginia Convention
and the proceedings there served as a training ground.83 Moreover, all or part
of six amendments in the federal Bill of Rights are to some extent expressed in
the Virgina Declaration of Rights.
Article 13 of the Virginia Declaration of Rights provides:
That a well-regulated Militia, composed of the body of the
people, trained to arms, is the proper, natural and safe defence 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.84
There is no mention of a right to bear arms. The focus of
the article is on the role of the militia versus a standing army. Nor was there
any such mention of a right to bear arms in New Jersey's Constitution, the next
state to adopt a constitution.85
The first state to adopt an arms provision was Pennsylvania
in August 1776. The Pennsylvania Declaration was influenced by the Virginia
model; much of it is taken almost verbatim, though there are some important
additions.86 For purposes of the second amendment, the relevant articles are
VIII, which provides:
[t]hat every member of society hath a right to be protected
in the enjoyment of life, liberty and property, and therefore is bound to
contribute his proportion towards the expence of that protection, and yield his
personal service when necessary, or an equivalent thereto . . . [n]or can any
man who is conscientiously scrupulous of bearing arms, be justly compelled
thereto, if he will pay such equivalent.
and XIII which provides:
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 be kept up; And that the military should be
kept under strict subordination to, and governed by, the civil power.87
The Virginia and Pennsylvania military articles were the
models for almost every other state; the remaining state constitutions usually
contained the language of one or both.88
The New York Constitution discussed the militia and granted
a religious exemption to Quakers, but did not mention any right to bear arms.89
Interestingly, the New York Constitution provides that the state, at its own
expense, supply military equipment.90 Thus, it was considered quite appropriate
for the government to provide the militia with its arms, rather than having
individuals provide their own. New York did not include any "right to bear arms"
The remaining states followed the pattern of borrowing
language from either Virginia or Pennsylvania.91 Only four states listed a right
to bear arms. Only two of those states phrased the right in terms of "defense
for themselves," a clause whose meaning is ambiguous.92
The four states with "right to bear arms" language are
almost the only states without a reference to the militia being the proper
defense for a free state. A comparison of Article XIII in the Virginia
Declaration of Rights with Article XIII in the Pennsylvania Declaration of
Rights shows that the arms clause was, in effect, a substitute for the militia
clause. The remainder of each article is almost identical. It seems logical to
conclude that the two clauses were conceptually similar. Some states chose to
use the Virginia version, with the militia-clause; the other states opted for
the Pennsylvania version, with the arms-clause.
In either case, the militia was considered to be preferable
to a standing army as the defense for each state. The Declarations were
attempting to ensure supremacy of the militia, not establish individual rights.
The military orientation of the arms-clause is refected in the surrounding
language: references to standing armies, duty to serve in the militia, exemption
for religious objectors who were "scrupulous of bearing arms," and so on. In no
sense can it be confidently stated that these state Declarations were concerned
with an individual right to bear arms for anything other than militia-related
D. Adoption of the Constitution and Bill of Rights
1. Drafting of the Constitution
By the 1780s, "the concept of a bill of Rights had been
fully developed in the American System."93 Twelve of the state constitutions
made some provision for guaranteeing the most important individual rights.94
However, the first national instrument of union, the Articles of Confederation,
contained no listing of the various rights so commonly espoused in the state
The Articles of Confederation provided that each state would
retain "its sovereignty, freedom, and independence."96 Article VI provided that
"every state shall always keep up a well-regulated and disciplined militia,
sufficiently armed and accoutred."97 In contrast, Congress' military power was
limited. No standing army could be maintained without the consent of nine of the
By 1787, however, it had become obvious that the government
was simply too weak to be effective. The chief purpose for calling the
Constitutional Convention in 1787 was to draft "a liberal, and energetic
Constitution."98 But the method for erecting a stronger national government was
a point of great dispute. While many delegates, including George Washington,
Alexander Hamilton, John Jay, and General Henry Knox, wished to have a powerful
central government,99 other delegates, including Luther Martin, Elbridge Gerry
and George Mason, feared an oppressive central government that would undercut
the power of the states. This latter group became known as the
"Anti-Federalists," as they fought to maintain the states' authority.
The key focus of the Convention was this struggle over the
proper roles of the federal government and the states. In the process, the
rights of individual citizens rarely became an issue. Indeed, it was not until
the end of the Convention that a proposal for a Bill of Rights was
By that time, several of the Anti-Federalists had become
alarmed at the possibility that the newly powerful federal government might
encroach on individual liberties. George Mason and Elbridge Gerry made a motion
to prepare a Bill of Rights, but this was not until September 12, 1787,101 only
five days before the end of the Convention and four months after the start.
In response to Gerry's proposal, the Federalists argued that
the state declarations and constitutions would be sufficient guarantees of
liberty because they were not being repealed by the federal Constitution.102 At
this point, with the end of the Convention in sight, the Federalists'
counter-arguments were sufficiently persuasive to result in a unanimous103
defeat of the proposal.104
Despite the Convention's lack of focus on individual rights,
many delegates were convinced that the federal government was becoming too
powerful.105 Mason, Gerry, and Martin repeatedly declared that they disliked
seeing the state governments, the traditional guarantors of personal liberty,
undermined.106 Mason declared that he never "would agree to abolish the state
governments, or render them absolutely insignificant."107 Martin attacked the
generosity with which the delegates were heaping powers upon the central
government, contending that "the general government was meant merely to preserve
the state governments, not to govern individuals . . . its powers ought to be
kept within narrow limits."108
While Martin anad the Anti-Federalists defended the role of
the states,109 the Federalists stressed how desperately the country needed a
strong central government.110
Nowhere in the Constitutional debates was there a discussion
of a right to keep or bear arms. The delegates at the Convention, however, did
spend a good deal of time debating the roles of the army and militia, and these
discussions are vital in understanding the second amendment. Most critically, it
is within the context of the overarching "federal versus state" debate that the
military clauses of the Constitution must be considered.111
Many people, including George Washington, believed that the
militia had performed poorly during the war; they were determined to establish
either a professional standing army or a small, highly trained, select
militia.112 The United States, however, disbanded the Continental Army after the
Revolutionary War, except for a small number to guard some posts and stores.113
Thus, military affairs had been put back in the hands of the states.114
When the proponents of a strong national government pushed
for a professional army, they simultaneously asked for extensive central
authority over the state militias.115 The only way to establish an effective
militia, the Federalists argued, was to provide more national uniformity in
arms, discipline, and training; the various states were simply not capable of
providing a sufficient national military force.116
The Anti-Federalists voiced not only the traditional fear of
a standing army, but also the anger over the proposed transfer of state
authority over the militia.117 The Anti-Federalists saw the states being
stripped of power in yet another crucial area--the military.118 They viewed the
militias as the means of defending themselves from an oppressive federal
government, particularly one which was providing itself with means to establish
an army.119 Having just fought a war against a powerful ruler who used the
military as his tool of enforcement, many delegates were not anxious to give
their militias to the new central government.120
Luther Martin and Elbridge Gerry attacked the plan, which
seemed to go against the popular notion that standing armies in time of peace
were dangerous. Gerry proposed that there be a limit on the number of troops
allowed.121 His plan was defeated, the prevalent view being that it was foolish
to have to wait until the country was attacked before raising a substantial
number of forces.122 Most of the delegates were convinced that at least a small
professional army was necessary for America's defense. They were willing to
trust Congress with the responsibility.123
Yet even among many Federalists, the dislike and distrust of
standing armies was still evident.124 Indeed, the Federalists frequently tried
to turn Anti-Federalists fears about the army around, arguing that by
strengthening national control of the militia, and by maintaining a
well-disciplined, uniformly trained, and effective militia, Congress would have
less need to raise a large standing army.125
But the Anti-Federalists were still hostile to the thought
of the central government taking control of the state militias.126 The
Anti-Federalist theme had been that a powerful central government would abuse
its powers, rendering the states impotent.127 Congress was already being
provided with an army--now it wanted control of the militia as well.128
The Anti-Federalists had three major arguments. First, the
central government might take control of the militias and use them as a tool of
oppression against the states, either in combination with the army or alone.129
Second, if the federal government were given the authority
to arm, discipline, and organize the militia,130 Congress might completely
neglect the militia, leaving it untrained and useless to the states.131 The
states would lose the only means of defense, and the central government would be
able to do whatever it wished through the army.
Third, it was unclear to many delegates whether the power to
arm and discipline the militia was within the exclusive province of Congress, or
whether the states had concurrent authority.132 If the Congress failed to arm
and train the militia, could the states do so?133 The Anti-Federalists were
unsure and worried about the possibility of Congress "disarming" the state
militias by ignoring them.134 If Congress did have exclusive power, the states
would lose all control to maintain their militias.
In response to the "militia versus army" debates, the
delegates struck two major compromises at the convention. The first was between
men like General Pinckney, who wanted a fully nationalized militia, and those
like Elbridge Gerry, who bitterly opposed even partial transfer of control away
from the states.135 The second compromise was between the more moderate
elements, who recognized that the viability of both the states and the central
government was at stake and that neither could be totally excluded.136
Excessive central authority over the militia would
jeopardize the integrity of the states and would thus jeopardize the possibility
of ratification. The states would want the militias not only for their own
defense, as a means of fending off a dictatorial central government, but also
for handling internal police matters, enforcing obedience to their laws,
quelling insurrections, and so on.137 There was a strong feeling that 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
The final distribution of power over the militia gave the
states the power to appoint officers and train the militia, while granting the
federal government the power to organize, arm, discipline, and govern the
militia.139 Congress was given the authority to call the militia to repel
invasions, suppress insurrections, and execute national laws.140 The President
was made Commander-in-Chief of the militia of the states when the militias were
in the service of the federal government.141
Thus, the states still had certain authority over the
militias, particularly when the militias were not in the national service. Also,
the "right to exist" of the state militias was recognized by the creation of a
separate national army.142
One critical point, however, was left unsettled at the end
of the Convention. It was unclear whether the power of arming and disciplining
the militia was exclusively federal. As the debates in the Virginia Ratifying
Convention reveal, this point concerned many.143
The power of "arming" the militias received only cursory
mention at the Convention. The key passage involes a confused discussion whether
"arming" extends to furnishing arms, specifying the kind and size of arms, or
regulating the mode of furnishing arms, either by the militia themselves, the
state governments, or the national treasury.144 Unfortunately, the discussion
was interrupted and not resumed. From the debates in the Virginia Ratifying
Convention, however, it is evident that by "arming" the militia, many had in
mind actually providing weapons the the militiamen.145
This is significant, because it shows that the Drafters
contemplated the possibility that the government would supply the militia
arms.146 By the same token, "disarming" was also used in the sense of
"neglecting to arm and train the militia," rendering them useless to the
These points are significant because they show that in the
context of the Constitution, the militia was viewed as a state-organized,
state-run body; it was not simply a term for the citizenry at large. Indeed,
even though the militias were composed of a large body of male citizens, the
militias were seen as state units which could be armed by the government, and
which could be called out by the states to quash rebellions, enforce laws, and
defend the state from invasion.148
Thus, it was plausible to view such a militia as being
destroyed if the federal, or state, government neglected to provide them with
training--and arms. If the militia was viewed as nothing more than the citizenry
at large, there would be no problem with "training" and "arming" them because
citizens could use their own guns and organize themselves.
This distinction between the militia as a state-organized
body and as the entire citizenry at large is important in understanding the
second amendment because one of the central claims of those who oppose
government efforts to regulate firearms is that the "militia" referred to in the
Constitution simply means an armed citizenry at large. Underlying this concept
is the notion that the second amendment is aimed at ensuring that all private
citizens would be armed, and thus able to rise up in revolt against any
government action perceived by the masses as "tyrannical."149
But as discussed above, the records of the Convention reveal
no clear discussion of an individual right to possess arms. Moreover, the
records reveal no discussion of a fear of state governments. The states were
repeatedly viewed as the protectors of the citizens' liberties, and the shield
for the populace from the evils of the national government.150 This is
significant for the second amendment. If the right to bear arms was granted in
order to stave off state government tyranny, as well as federal government
tyranny, it is plausible to argue that all citizens should have the right to
keep arms because a state-organized body such as militia could not be the proper
shield for citizens to rise against an oppressive state government. But there is
no discussion to support such an argument. The discussions of the Constitutional
Convention, the Bill of Rights, and the state ratifying conventions focus on the
need for the states and citizens to protect themselves from an oppressive
federal government. In the debates over the Constitution and the Bill of Rights,
the state governments were never viewed as a threat.
2. The Ratification Struggle
As soon as the Convention had broken up, the ratification
controvery began in the states.151 The Federalists, urging support for the
Constitution, engaged the Anti-Federalists in a war of pamphlets, newspaper
articles, and debates on the merits of ratification.152 The fear of an
overbearing central authority, which would lead to the "destruction of the
states," was the foremost theme of the Anti-Federalists.153 They claimed that if
the central government were given such powers, it might easily become an
"aristocracy," under the Senate's control, or a "monarch," under the
A subsidiary concern was that the proposed Constitution was
inadequate to protect individual rights and liberties.155 The absence of a Bill
of Rights soon proved to be the most vulnerable aspect of the Constitution, and
popular outcry over the lack of such a bill grew.156 The Anti-Federalists soon
focused their attack on this aspect and its appeal was natural.157 After all,
the state constitutions had all contained declarations of fundamental rights. A
powerful central government was being established and its Constitution contained
nothing about individual rights.158
The Federalists usually responded that this government was
one of limited powers, and so there was no need for such a Bill of Rights.159
The populace was not convinced and asked, what harm could be done by including a
Bill of Rights? Pressure on the Federalists mounted and it eventually became
evident that amendments would be needed to ensure ratificatioin.160
The Anti-Federalists directed much of their venom at the
army and militia provisions of the Constitution. In his writings,161 Richard
Henry Lee urged that the people strive to give the state governments the
greatest amount of power.162 The state governments were the true representatives
of the people, he said, in a familiar Anti-Federalist theme.163 Powers touching
on internal state affairs, such as taxes and the militia, were now being lodged
in the central government. Similar attacks took place on the creation of a
standing army, the "nursery of vice and . . . bane of liberty," and the transfer
of authority over the militia, "the bulwark of defence [sic]," to the central
Luther Martin envisioned Congress taking control of the
militias and marching them all over the country.165 He stated that the
Constitution was taking away from the states,
[the] only defense and protection which the State can have
for the security of their rights against arbitrary encroachments of the general
government . . . it ought to be considered as the last coup de grace to the
state governments . . . and, by placing the militia under [Congress's] power,
enable it to leave the militia totally unorganized, undisciplined, and even to
The Federalists responded that a strong army was
necessary;167 that a strong militia would alleviate the need for a large
army;168 that the states still had concurrent control over the militia;169 and
that the states had little to fear from any national forces, since the people's
loyalties lay with the state government and the citizens would always side with
and defend their state government against any oppressive federal actions.170 But
as the state conventions met, there was still concern over both the lack of a
Bill of Rights and the assumption of military power by the new central
The arguments of the Federalists seem to have allayed at
least some fears, for the early state conventions were solid victories for
ratification. Delaware ratified first, shortly after the Philadelphia Convention
disbanded.171 Pennsylvania was next to ratify.172 Fifteen amendments were
proposed but all were voted down.173
A vocal Pennsylvania minority, upset with the large power
being given to the central government, and believing that no control was being
left with the state governments, had proposed the amendments.174 This group felt
that the combination of a national standing army and a militia over which
Congress had "absolute unqualified command" would lead to the destruction of
The Pennsylvania proposals included eight of the ten
amendments eventually put into the Bill of Rights.176 Among the proposed
amendments was one declaring that standing armies were dangerous to liberty.
Other amendments asserted the right of the people to bear arms and directed that
the power of organizing, arming, and disciplining the militia remained with the
Though neither adopted by the Pennsylvania convention nor
sent to Congress as recommendations, the Pennsylvania amendments were widely
circulated and served as a model for the other states. The states soon adopted a
system of ratifying the Constitution, but then sending a lit of proposed
amendments (a "Bill of Rights") along as "recommendations." Even the Federalist
supporters of the Constitution came to see that the Pennsylvania minority method
was a means of defusing opposition to ratification.
By the time of the Virginia convention, nine states had
ratified, ensuring that the Constitution would go into effect.177 But it was
commonly believed that permanent union was impossible without Virginia, the
wealthiest, most prestigious, and most populous state.
The Virginia convention was important in regard to the
second amendment for several reasons. First, Virginia was the only state to
discuss extensively the military clauses of the Constitution. Second, the Bill
of Rights proposed by Virginia had an article concerning the right to bear arms
and the militia. This article resembles Madison's second amendment. Third,
Madison was a member of the Virginia convention and thus was influenced by the
military debates there, and probably felt a duty as a Virginian to consider the
desires of the people of his state. Finally, the overall impact of the Virginia
proposals is self-evident, since every specific right listed in the Virginia
proposals was presented by Madison in his proposed federal amendments, and all
but one became a part of the Bill of Rights.178
The major object of Anti-Federalist concern about the
military was article I, section 8, clause 16 of the Constitution, which gave
Congress the power to "organize, arm and discipline the militia."179 The
Anti-Federalists believed that this clause gave Congress exclusive power to
provide for arming the militia, and thus prevented the states from doing so
themselves.180 According to George Mason, this exclusive power would allow
Congress to destroy the militia by "rendering them useless--by disarming them .
. . Congress may neglect to provide for arming and disciplining the militia; and
the state governments cannot do it, for Congress has an exclusive right to arm
By "disarming," Mason meant two things: not providing arms
for the militia, and not using the militia. Neither Mason nor anybody else at
the Virginia convention expressed concern that the federal government would
physically take the arms of individual militiamen. Mason proposed an amendment,
subsequently adopted, that would declare the right of the state governments to
arm and discipline the militia, should the general government neglect to arm and
discipline them. Mason feared that by neglecting the militia, Congress would
have an excuse to raise that great evil, a large standing army.182
Madison responded with the traditional Federalist argument
that a strong, uniform, and disciplined militia was the best way to avoid the
need for a large army.183 Madison next answered the other major Anti-Federalist
concern by declaring again that the states had concurrent power to arm and
govern the militia. According to Madison, the Congressional power was not
exclusive, and hence the states need not worry that their militias would be
Patrick Henry continued Mason's line of argument, contending
that if the militia clause did give the states concurrent power to arm the
militia, it did so only by implication.185 Already apprehensive about the powers
of the federal government, the Anti-Federalists demanded an express declaration
of the states' right to arm the militias.186
Considering that each militiaman was generally supposed to
supply his own arms, it seems odd that there was so much discussion about which
government would provide the arms. The answer can only be that the states at
this time actually did provide some portion of the militia's arms. Thus, Patrick
Henry stated that "necessary as it is to have arms, and though our Assembly has,
by a succession of laws for many years, endeavored to have the militia
completely armed, it is still far from being the case. When this power is given
up to Congress . . . how will your militia be armed?"187 Similarly, John
Marshall stated: "If Congress neglect our militia, we can arm them ourselves.
Cannot Virginia import arms? Cannot she put them into the hands of her
From these statements, it is clear that the Virginia
delegates envisioned that the government would provide not only training for the
militia, but also arms.189 More important, the Virginia debates show that the
militias were viewed as state-organized bodies, and the "militia" of the second
amendment was not simply viewed as the armed citizenry at large. The states', or
Congress', failure to train, organize, and arm the militias could only have such
a devastating impact if the government was largely responsbile for them. Thus,
while the term "militia" may have referred in some contexts to the citizenry as
a whole, in the context of the Bill of Rights debate, it referred to organized,
trained, and government-supplied militias.
The Virginia debates reveal that the delegates were not
concerned with an individual right to carry weapons, outside the context of
militia service. The Anti-Federalist expressed the traditional fears of a
standing army,190 but were equally concerned with the states' apparent loss of
power over the militias. The Anti-Federalists could not see why they should
allow Congress to take charge of the state militias and then neglect
them--disarm them. "Why should we not provide against the danger of having our
militia, our real and natural strength, destroyed?"191 Thus, Mason and Henry
proposed that, "if Congress should refuse to find arms for [the militia], this
country may lay out their own money to purchase them."192 As Luther Martin and
Elbridge Gerry had repeatedly stressed, the militias were the states' only means
These debates reveal the key meaning of the Virginia
proposals. The new federal government could keep much of its broad military
power, but it would be forbidden from disarming the state militias. The central
government must give to the states the right to keep their militias armed and
trained, in order for the states to have them as an effective means of defense.
The "right to bear arms" concerned the ability of the states to maintain an
effective militia, not an individual right to keep weapons for any purpose
whatsoever. This interpretation of the Virgina proposals is consistent with
those State declarations and constitutions of the 1770s which had "right to bear
The Virginia Convention adopted a Declaration of Rights
containing 20 articles and 20 proposed amendments to the text of the
Constitution.193 Article XVII stated:
[t]hat the people have a right to keep and bear arms; 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 are dangerous to liberty, and therefore ought to be avoided, as far as
the circumstances and protection of the Community will admit; and that in all
cases the military should be under strict subordination to and governed by the
Article XIX stated "[t]hat any person religiously scrupulous
of bearing arms ought to be exempted upon payment of an equivalent to employ
another to bear arms in his stead."195
These two articles neatly encapsulated the prevalent
American view on the merits of standing armies and militias. Amendments IX and
XI proposed by Virginia protected these principles. The ninth amendment
provided, "[t]hat no standing army, or regular troops, shall be raised, or kept
up, in time of peace, without the consent of two thirds of the members present
in both houses."196 The eleventh amendment provided, "[t]hat each state
respectively 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. That the militia shall not be subject to martial law,
except when in actual service . . . ."197
The eleventh amendment reflects the Anti-Federalist concern
over the federal government's neglecting and disarming the militia.198 The
seventeenth article in the proposed Bill of Rights is almost identical with the
thirteenth article of the Virginia Declaration of Rights of 1776, except that
the "right to keep and bear arms" is included.199 This addition is
understandable in the context of the Virginia debates: the Anti-Federalists
wanted explicit assurances that the states would be able to arm and discipline
the militias. There is no mention in the Virginia debates of individuals
carrying weapons, or of the need to assure individuals that the federal
government would not confiscate their arms. The debate was solely in the context
of whether the government would affirmatively provide arms for the militia.
Following the Virginia ratifying convention, the New York
and North Carolina conventions added to the pressure on Congress to act quickly
in adopting a Bill of Rights.200 New York had an extremely close vote on
ratification, with the convention narrowly voting down a proposal to refuse
ratification until its proposed amendments were adopted.201 North Carolina,
however, refused to ratify the Constitution until a Bill of Rights was added.202
3. Adoption of the Bill of Rights
The close vote in New York and the refusal of North Carolina
to ratify, with the flood of recommended amendments proposed by the states, gave
the Bill of Rights movement virtually irresistible momentum. The Federalists
knew they would have to propose a Bill of Rights when the new Congress assembled
Madison introduced a proposed Bill of Rights early in the
first session to alleviate any suspicion that the new government was dragging
its heels.204 His draft was based on the numerous amendments proposed by the
state ratifying conventions, particularly Virginia's.205 Madison's initial
effort covered all the articles eventually found in the Bill of Rights, and
included much of the specific language adopted.206
Madison's draft of the second amendment provided: "[t]he
right of the people to keep and bear arms shall not be infringed; a well armed
but 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."207
As is obvious from the language, the focus of this amendment
was on the military. There was almost no debate in the House over this proposal.
Debate did occur over the religious scruples clause. Elbridge Gerry, still
suspicious of the army and federal control over the militia, moved to strike the
religious scruples clause.208
Gerry's proposal, however, failed as did Burke's proposal to
add a clause forbidding standing armies in peacetime without the consent of
two-thirds of Congree.209 The amendment was passed by the House without any
substantial alteration, though "free country" was changed to "free state."210 No
reason is given for this change, although it may indicate that the second
amendment was aimed at preserving the security of the individual states by
ensuring their right to maintain effective militias.
The Senate was content to tighten the House's language in
most of the amendments. The Senate essentially adopted the House version of the
second amendment, though it dropped the religious exemption. The Senate
rearranged the language, placing more stress on the militia aspect of keeping
and bearing arms: "[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
The background of the second amendment indicates that
Congress did not intend to confer a broad "individual" right to carry arms,
outside of the military context.212 Obviously, if Madison and Congress had
intended to create some broad individual right to weapons, they could have
chosen language which clearly did so. The Senate did reject a proposal to insert
the phrase "for the common defense" after the "right to bear arms" clause.213
Some have claimed that this rejection indicates that the second amendment was
aimed at a broad individual right to have weapons, and not just a
military-related right. But the Senate's reason for rejecting this proposal is
unknown, since there is no record of the discussion. Because the Senate had
agreed to the substance of the amendment, it seems more likely that the phrase
was rejected because it was redundant. It was already understood that the
amendment meant the right of the people to bear arms for the security and
defense of their state.214
More significantly, in none of the conventions, writings, or
debates preceding the second amendment was there any discussion of a right to
have weapons for hunting, target shooting, self-defense, or any other
non-militia purpose. No such discussion appears in the Constitutional Convention
records, the Anti-Federalist writings, Virginia's ratifying debates, state
constitutions or declarations of the 1770s, or Congressional debates on the Bill
of Rights. Considering the immediate political context of the second amendment,
as well as the historical background, the amendment's meaning is apparent. A
traditional fear of standing armies in the hands of a powerful central
government had instilled in Americans a belief that a militia was the proper
form of defense. The proposed Constitution authorized standing armies and
granted Congress sweeping power over the militia. Many saw the possibility of
Congress failing to maintain the militias effectively and were unsure if the
states retained the authority to do so. From the viewpoint of the individual
citizen, the concern was simply to be able to keep and bear arms in his capacity
as a state militiaman.
From either the state or individual perspective, the thrust
of the amendment was to ensure the existence of an effective state militia. In
neither case was there an intent to confer a broad individual right to have arms
for other lawful purposes. There is simply no evidence that the second amendment
was to prevent oppressive state governments from tyrannizing the citizens--this
was simply never considered. The amendment was to protect the states' ability to
maintain effective militias, and to protect against an oppressive federal
government. Indeed, the Senate rejected the amendment, which Madison regarded as
most important and which prohibited state violation of the personal liberties
guaranteed in the Bill of Rights. 215 Thus, there is no support for the view
that the second amendment was intended as a limitation on the states.216
The focus of the Bill of Rights was the limitation of the
federal government's power; the Bill of Rights ensured the citizenry that the
newly powerful central government would not trample on their traditional
liberties. The Framers were concerned with preserving the states' authority over
some part of the military system. Hence, we have the militia clause of the
Constitution. The Anti-Federalists, too, were concerned with preserving a role
for the states. Hence we have the second amendment.
E. The Militia in America
1. The History of the Militia Since 1789
As the preceding historical analysis has shown, and as the
courts have repeatedly held,217 the right of an individual to keep and carry
arms only exists in the context of contributing to a "well-regulated militia."
Thus, to understand the constitutional implications of gun legislation today, it
is important to understand how the role and organization of the "militia" have
evolved since colonial times.
As discussed above, the colonies had no standing army until
the Revolutionary War. Each colony had its own militia, modeled on the English
militia system.218 The militias of the states were organized on one basic
system:219 white males between the ages of eighteen and forty-five or eighteen
and sixty were required to muster for training four to eight days per year;
militiamen were generally required to furnish their own basic equipment,
including arms and ammunition.220
Though many felt that the militia performed poorly during
the war, and wanted to do away with the militia as the defense of the
country,221 the United States largely disbanded the Continental Army after the
war. Military affairs were placed again in the hands of the state governments
and their militias.
The militia of the late 1700s served several functions.
First and most important, it eliminated much of the need for a large standing
army, by providing the main source of defense for the country.222 Second, it
enabled the states to maintain their own military forces and thus ensured that
the federal government would not become overly oppressive.223 Third, it gave the
states a source of internal police power, available for such tasks as
suppressing insurrections.224 Fourth, it ensured the states that they would have
substantial authority in the new federalist scheme.225
Laws at the time generally required militiamen to bring
their own equipment--including firearms. But, it is evident that the states did
supply, at least in part, some of the arms and ammunition for militiamen. It is
also clear that the federal government had been given the power to provide both
training and arms to the state militia. This is evident from the state ratifying
debates and the subsequent actions of the federal government.226 Thus, contrary
to what some pro-dun writers have argued,227 today's practice of having the
federal government supply militia arms would not "shock" those who wrote the
second amendment, nor does it "violate" the amendment's spirit.
In 1792, Congress passed the Militia Act.228 This was
Congress' first attempt to organize the militia system under the power given to
it in the Constitution. Before the Militia Act, numerous proposals had been made
by Secretary of War Knox and by George Washington to set up a "select corps" of
militiamen.229 But these efforts failed. The Militia Act of 1792 ignored the
idea of a select militia, and stated that all able-bodied white male citizens
ages eighteen to forty-five were to be enrolled and that each militaman was
required to furnish his own equipment.230 The Militia Act set out a system
comparable with the seventeenth and eighteenth century versions of the
militia.231 By incorporating the principles of the state militia laws of the
time, the Militia Act bill simply asked the states to continue what they had
The states, however, were not up to the task. The history of
the state militias between 1800 and the 1870s is one of total abandonment,
disorganization, and degeneration.232 The states were responsible for funding
and organizing the militias because Congress had made no provision for helping
them. Despite occasional inducements by Congress to spur the states to arm and
organize their militias, the states chose to do virtually nothing.233 The
militias became typified by infrequent training and mustering, and a growing
list of exemptions. States repealed the laws that had set fines for
non-attendance. People laughed at the "patriots" who attended. The problem with
the 1792 Act was that it was unselective and imposed a duty on everyone. States
were not rich enough to organize militias properly. Citizens became impatient
with having to spend days attending militia duties. New states joining the Union
had no revolutionary tradition and no special attachment to the militia system.
Parades and mustering were financially burdensome to the worker; and when so
many received exemptions, it created resentment and pressure to abandon the
The provisions of the 1792 Act were unworkable and worthless
for the national defense.234 Those still involved in the militia had turned them
largely into social and entertainment clubs, featuring a once-a-year mustering
akin to a festive celebration.235 By 1900, the militia as the whole body of the
people had virtually ceased to exist. President Roosevelt, in his annual message
to Congress in 1901, stated the obvious: the old militia law was "obsolete and
In 1903, Congress passed the Milita Act, commonly known as
the "Dick Act."237 The Dick Act was an effort to provide for organizing,
training, and equipping the militia. The Dick Act was an effort to restore the
militia to a status in which it would be useful as a means of defense.
The legistlative history of the Dick Act shows that the
purpose of the bill was to improve the efficiency of the "National Guard," as
the state militias had become known, and make it a solid second line of defense
for the country.238 The aim was to secure uniformity of instruction, which could
only be obtained by uniformity of armament and equipment.239
The Committee Reports criticized the old 1792 Militia Act.
These reports stated that the terms of the Militia Act were too sweeping and its
attempt to include all able-bodied males was practically impossible to
execute.240 One of the key changes made by the Dick Act was to establish two
categories of militia, an organized and an "unorganized" or "reserve"
militia.241 All the training, arming, and drilling were to be directed at the
"organized" militia, also known as the National Guard. No provision was made for
the unorganized militia.242
Thus, in the first real exercise of its power to organize
the militia, Congress departed from its previous practice in two significant
respects. First, in contrast to the militias of colonial times, it created an
organized militia consisting of less than all able-bodied men. Second, and again
for the purpose of providing for the national defense, the federal government
asumed the obligation of supplying and arming the members of the organized
militia, and of arming those members of the reserve militia who were called to
The state and federal governments have always had concurrent
jurisdiction and control over the militia, and either one has the authority to
call out the militia to meet its needs.244 Congress was asserting its share of
control over the militia, in terms of training and equipping them, to make it an
efficient arm of the national military. The Dick Act intended for the states to
retain the authority to use the militia; the federal government was simply
trying to assure that the state militias were armed and organized, and thus
It has been argued that the Dick Act violated the spirit of
the second amendment.245 It is difficult to see the logic of this view.
Admittedly, the Dick Act reorganized the militia system. And although the Dick
Act's main purpose was to bolster the militia for the purpose of national
service, its effect was to revive the state militias and save them from
near-extinction. The Dick Act made certain that the state militias were armed
and organized and available for both national and state purposes. In this
respect, the Dick Act was quite in keeping with the spirit of the second
In 1908, Congress passed a statute246 that raised additional
money for the militia. Congress further provided that in time of war the militia
would be taken into service before any volunteer forces. In 1916, the National
Defense Act was passed.247 This act largely completed the transformation from
state to federal control.248
Today, the United States supplies most of the material for
the National Guard, and the Army supervises instruction of soldiers. The United
States does not, however, actually train the National Guard. That duty remains
in the states' hands.249 Most importantly, the National Guard, while viewed
today as a "federal entity," is still the state militia during those times when
it is not in federal service. This is so despite its federal pay and its
federally owned equipment.
2. The Second Amendment as it Relates to the Militia Today
The key developments in the history of the militia have
been: the arming of the militias by the federal government; the split between an
organized and unorganized militia; the passage of the militias from state
authority to largely federal authority; and the rise of the army as the main
defense force in the country. What effect have these changes had on the second
amendment's current status?
The second amendment was ratified to ensure each state's
ability to maintain an effective militia and to arm its militia if the federal
government failed to do so. Thus, the right of an individual to possess a
firearm is protected by the second amendment only if the individual's possession
of the firearm is necessary to ensure a viable state militia.
Under existing federal law, in effect for over 70 years, the
federal government is responsible for arming and equipping the present day state
militia, the National Guard.250 No state still requires its citizens to supply
weapons for its militia. Consequently, possession of a weapon by an individual
no longer bears any relationship to an effective militia. So long as privately
owned firearms are not needed to supply the milita, and the National Guard
remains armed by the federal government, the guarantee encompassed in the second
amendment imposes no restrictions on federal legislation seeking to regulate
ownership or possessioin of arms by individuals.
Some commentators argue that the National Guard should not
be viewed as the "militia" envisioned by the second amendment.251 These
commentators claim that the National Guard cannot be the independent state
militia contemplated in 1789. Those militias were to be tools largely of the
states, ready to fight the federal government. Today, the federal government has
ultimate authority and control over the militia.252 Still other pro-gun
commentators urge that the militia is important only in its "idealized" form of
common citizens having arms.253 Without unrestricted access to guns, there is no
possibility of an anonymous armed citizenry able to rise against a tyrannical
government.254 These commentators all conclude that the present-day organized
militia is not sufficient to guarantee the security of the people, as was
intended by the second amendment. The underlying premise of this viewpoint is
that citizens should be allowed to keep weapons in order to exercise their
"right" to overthrow an oppressive government.
A major problem with these arguments is that they assume the
second amendment drafters viewed the militia as an anonymous "armed citizenry at
large," rather than as some form of state-organized, state-trained unit. But the
second amendment was not designed to ensure that every citizen would have
weapons. The second amendment was designed to assure the states and citizens
that they could maintain effective state militias. However, the states and
citizens demonstrated during the 1800s that they did not want to exercise this
Even if the present-day National Guard is not the exact
equivalent of the colonial militia, this is so simply because of the passage of
time. The militia of the 1700s no longer exists. In the late eighteenth and
early nineteenth centuries, the second amendment might well have prevented the
federal government from passing extensive legislation affecting private
ownership of firearms. Such laws could have seriously impaired the effectiveness
of the states to maintain their militias, given the statutes of the time and the
poor manner in which the states armed their militias. Today, however, the state
militias are well-armed. So long as the federal government continues to provide
arms, and so long as privately owned weapons are not needed for militia
purposes, gun legislation should raise no constitutional problems.
III. JUDICIAL INTERPRETATION OF THE SECOND AMENDMENT
The second amendment has inspired a remarkable degree of
consensus among federal and state courts. Indeed, the proposition that the
second amendment does not guarantee each individual a right to keep and bear
arms for private, non-militia purposes may be the most firmly established
proposition in American constitutional law. As the following discussion
demonstrates, this proposition is in accord with the teaching of the historical
materials reviewed in Section II.
A. The Amendment as a Restraint on Federal Action
1. The Supreme Court's Holding in United States v. Miller
The Supreme Court's decision in United States v. Miller256
is the Court's only extensive treatment of the meaning of the second amendment.
Miller established an analytical framework that, as refined by the lower courts,
determines the outcome of second amendment cases to this day.
The issue in Miller was whether the second amendment barred
the prosecution of two individuals for transporting in interstate commerce a
sawed-off shotgun without having registered the weapon as required by the
National Firearms Act of 1934.257 In upholding the statute as applied to the
weapon at issue, the Supreme Court made it clear that the only purpose of the
second amendment was to ensure the effectiveness of state militias.258 After
quoting the militia clause of the Constitution, the Court wrote: "With obvious
purpose to assure the continuation and render possible the effectiveness of such
[militia] forces the declaration and guarantee of the Second Amendment were
made. It must be interpreted and applied with that end in view.259 The Court's
analysis directly contradicts the argument that the second amendment guarantees
a right to bear arms for individual self-defense, sport-shooting, or other
purposes unrelated to participation in state militias.260
The Supreme Court's extensive discussion of the militia in
Miller, moreover, reveals that the Court regarded the militia as a government
directed and organized military force, not as a term synonymous with the armed
citizenry at large. For instance, the Court refers to the militia as a "body of
citizens enrolled for military discipline."261 It also referred to colonial laws
intended to insure the possession of arms "by all who were subject to military
service."262 The Court's description of the colonial militia as an instrument of
governmental authority is consistent with the historical materials discussed in
section II of the article.
As to the constitutional issue before it, the Court wrote:
[i]n the absence of any evidence tending to show that
possession or use of a 'shotgun 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 [s]econd
[a]mendment 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.263
Thus, the Court was able to decide the constitutional issue
by finding an absence of evidence that the weapon in question had a "reasonable
relationship to the preservation or efficiency of a well regulated militia." The
possible use of the weapon for purposes unrelated to the militia was not
2. The Meaning of Miller: The "Collective Rights"
Interpretation of the Second Amendment
Does Miller mean that weapons which can be shown to have a
military use are protected by the Second Amendment? One commentator has
interpreted Miller as holding that "the Constitution protects the right to
possession or use of arms having a militia utility, e.g., shotguns, rifles, and
pistols."264 This argument seems absurd on its face, because it would accord
constitutional protection to machine guns, bazookas, hand grenades, and other
military hardware of staggering destructive potential.265
The proposition that Miller recognizes the protected status
of any weapon that could have a military use has been rejected by every court
which has addressed it. For example, the First Circuit Court of Appeals in Cases
v. United States266 rejected a second amendment challenge to the defendant's
conviction for violating the proscription in the Federal Firearms Act267 against
the transport or receipt of firearms in interstate commerce by fugitives or
persons convicted of a crime of violence. Although the Court acknowledged that
the weapon in question--a .38 caliber Colt revolver--"may be capable of military
use" or at least valuable in training a person to use military weapons, it held
that it was not constitutionally protected because its possession by the
defendant did not contribute to the maintenance of a militia:
[t]here is no evidence that the appellant was or even had
been a member of any military organization or that his use of the weapon under
the circumstances disclosed was in preparation for a military career. 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 a well regulated militia which
the Second Amendment was designed to foster as necessary to the security of a
Whereas Miller had decided the second amendment issue by
reference to the nature of the weapon alone, the court in Cases examined whether
the possession of the weapon by the particular defendant had any relationship to
a well-regulated militia.269 The Cases opinion sensibly recognized that the
military nature of a weapon does not itself determine its relationship to the
maintenance of a militia since a weapon suitable for military purposes may be
owned and used for purposes unrelated to militia activities.
It may legitimately be argued that the Supreme Court in
Miller did not need to go beyond the nature of the weapon itself to determine
whether a conviction for transporting it in interstate commerce ran afoul of the
second amendment. Having found the evidence insufficient to indicate any
military use for a sawed-off shotgun, the Court decided the second amendment
issue without analyzing the particular circumstances of its possession by the
defendant.270 Thus, although proof of the sawed-off shotgun's military potential
was necessary to give it constitutional protection, it may not have been
sufficient to confer such protection. The court in Cases wrote:
we do not feel that the Supreme Court in [the Miller] case
was attempting to formulate a general rule applicable to all cases. The rule
which it laid down was adequate to dispose of the case before it and that we
think was as far as the Supreme Court intended to go.271
The court in Cases also recognized that since some sort of
military use seems to have been found for almost any modern lethal weapon,272 to
read Miller to grant constitutional protection to all weapons of military
potential would be to empower the federal government to regulate only weapons
which can be classed as antiques or curiosities,273 such as the flintlock
musket.274 The court also was disturbed by the implication that Congress would
be prevented from regulating the private use of "distinctly military arms, such
as machine guns, trench mortars, anti-tank or anti-aircraft guns"275 even though
"it would be inconceivable that a private person could have any legitimate
reason for having such a weapon."276
Later decisions have agreed with this interpretation of
Miller and have upheld the power of the federal government to regulate military
weapons. The Sixth Circuit Court of Appeals in United States v. Warin277 held
that the provisions of federal law requiring registration of machine guns278 did
not violate the second amendment. The court noted that the Miller Court did not
reach the question whether military weapons could be regulated, there being no
military weapon before the Court.279 The Warin court concluded that if
conferring constitutional protection on the private ownership of military
weapons was "inconceivable" in 1942 when Cases was decided, "it is completely
irrational in this time of nuclear weapons."280 Thus, the courts have
unanimously rejected the notion that Miller, either directly or by implication,
recognizes a constitutional right to possess military weapons.
In fact, the courts consistently have read Miller to mean
that federal statutes regulating firearms do not offend the second amendment
unless the statutes are shown to interfere with the maintenance of an organized
state militia. Because privately-owned firearms are no longer used for militia
purposes, this analytical framework has meant that, since Miller, no federal gun
law has been held to violate the second amendment.
This pattern of lower court decisions began with the
decision of the Third Circuit in United States v. Tot,281 decided one month
before Cases. In Tot, the court of appeals rejected a second amendment challenge
to the identical section of the Federal Firearms Act at issue in Cases.282 The
court of appeals' holding was based in part on the failure of the defendant to
show a relationship between the weapon at issue--a pistol--and the preservation
of a well-regulated militia.283 It is not clear whether the court of appeals'
finding in Tot was that there are no military uses for a pistol or that the
possession of a pistol by the particular defendant was unrelated to militia
In any event, the court of appeals preferred to rest its
holding on a broader basis, namely that there was never any absolute right to
bear arms under the common law and that laws restricting the availability of
firearms to persons "who have previously . . . been shown to be aggressors
against society"284 surely must be constitutional because such laws do not
"infringe upon the preservation of the well-regulated militia protected by the
[s]econd [a]mendment."285 The court in Tot expressly rejected the proposition
that the second amendment guarantees a broad, individual right to own firearms
similar in nature to the guarantees of the first amendment.
It is abundantly clear that from the discussion of the
amendment contemporaneous with its proposal and adoption and those of learned
writers since that this amendment, unlike those providing for protection of free
speech and freedom of religion, 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.286
As the discussion in section II shows, the court's
conclusion accurately reflects the weight of the historical evidence.
Much of the recent jurisprudence of the second amendment has
been created by challenges to the provisions of the Gun Control Act of 1968. In
each case, the court considered the key constitutional question to be whether
the particular statutory provision at issue had any adverse impact on a state's
ability to maintain a military force. In each case, the court answered no. The
federal courts have rejected second amendment challenges to the federal
record-keeping requirements imposed on gun dealers;287 the prohibition of gun
possession, transport, or receipt by convicted felons288 or persons indicted for
felonies;289 the registration requirements as applied to machine guns;290 the
dealer licensing requirements;291 and the prohibition against making false
statements in the course of purchasing firearms.292
The courts repeatedly have followed Tot in expressly holding
that the right guaranteed by the second amendment is not an individual right,
but rather a "collective" right. The Sixth Circuit Court of Appeals wrote in
Stevens v. United States,293 "[s]ince the [s]econd [a]mendment right to keep and
bear arms applies only to the right of the State to maintain a militia and not
to the individual's right to bear arms, there can be no serious claim to any
express constitutional right of an individual to possess a firearm."294
In a later opinion,295 the Sixth Circuit Court of Appeals,
called the second amendment guarantee a "collective rather than an individual
right."296 In Eckert v. City of Philadelphia,297 the Third Circuit Court of
Appeals wrote that "the right to keep and bear arms is not a right given by the
United States Constitution."298 The Fourth Circuit Court of Appeals in United
States v. Johnson299 held that "the second amendment only confers a collective
right of keeping and bearing arms which must bear a reasonable relationship to
the preservation or efficiency of a well regulated militia."300 The Supreme
Court of Minnesota wrote in In Re Atkinson301 that "the [s]econd [a]mendment
protects not an individual right but a collective right, in the people as a
group, to serve as militia."302 Other state courts have agreed.303 This line of
cases was succinctly summarized by the Court of Appeals for the Eighth Circuit,
which wrote in United States v. Nelson304 that the argument for a "fundamental
right to keep and bear arms" in the second amendment "has not been the law for
at least 100 years."305 The court of appeals noted that courts "have analyzed
the [s]econd [a]mendment purely in terms of protecting state militias, rather
than individual rights."306
The "collective, not individual rights" interpretation has
been criticized on the ground that the language of the second amendment grants
no express rights to the states and instead speaks of the right of "the people"
to keep and bear arms. These commentators note that when rights are granted to
"the people" in other portions of the Bill of Rights, these rights are being
granted to individuals, not to states.307
This criticism is simply a misreading of what the courts
mean when they say that the right granted by the second amendment is
"collective," rather than "individual." The courts have not held that the second
amendment right belongs to the states in the sense that only the states, not
individuals, may assert it.308 Rather, the courts have held, in accord with
Miller, that the interest protected by the second amendment is the collective
and public interest in a viable state militia, not the private interest of
individuals in owning firearms for reasons unrelated to the militia.
The second amendment is thus distinguishable from other
parts of the Bill of Rights because it protects a public interest, not a private
interest. It may well be that the right to keep and bear arms is individual in
the sense that it may be asserted by an individual. But it is a narrow right
indeed, for it is violated only by laws that, by regulating the individual's
access to firearms, adversely affect the state's interest in a strong militia.
As one court has cogently written in adopting the "collectivist" interpretation:
"[t]he right of an individual is dependent upon a role in rendering the militia
As noted above, the possibility that laws affecting
privately-owned firearms could also cripple a state's militia was quite real in
colonial times when, as the Miller Court accurately noted, militiamen often were
required to use their own arms in active militia duty. This possibility now
seems purely theoretical because American citizens do not own firearms for the
purpose of participating in militia activities. For such activities, they use
arms supplied by the federal government. This does not imply that the second
amendment is without meaning. But the historical changes in the nature of the
militia and how it is armed have made it impossible for the second amendment
guarantee to be violated by laws affecting the private ownership of firearms.
This conclusion is dramatically illustrated by the most
far-reaching of the second amendment decisions, Quilici v. Village of Morton
Grove.310 In Morton Grove, the Seventh Circuit Court of Appeals upheld, against
a second amendment challenge, a local ordinance prohibiting the possession of
handguns within the borders of Morton Grove. In addition to finding the
amendment inapplicable to the states, the court of appeals held that the scope
of its guarantee would not prohibit a handgun ban.311 The court wrote that
according to the plain language of the amendment, "it seems clear that the right
to bear arms is inextricably connected to the preservation of a militia."312
Finding that individually owned handguns are not military weapons at all, the
court concluded that under Miller, "the right to keep and bear handguns is not
guaranteed by the second amendment."313 The implication of Morton Grove is that
a prohibition of the private ownership of handguns at the federal level would
not offend the second amendment.
Opponents of the collectivist theory argue that, regardless
of the historical changes which led to the creation of a publicly-funded citizen
force known as the National Guard, the colonial "militia" still survives in the
statute books.314 The opponents rely on Title 10 of the United States Code
section 311,315 which defines the "militia of the United States" as consisting
all able bodied males at least 17 years of age and, [with
certain exceptions], under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States and of female
citizens of the United States who are commissioned officers of the National
Section 311 also distinguishes between the "organized
militia, which consists of the National Guard and the Naval Militia"317 and the
"unorganized militia, which consists of the members of the militia who are not
members of the National Guard or the Naval Militia."318 In addition, various
state laws have similar broadly-based definitions of the "militia."319 The
argument made by the critics of the "collectivist" approach appears to be that
mere membership in the "militia," as it is defined in these statutes, confers an
individual right to own firearms under the second amendment.
This argument is flawed in two respects. First, the
expressed concern of the second amendment is not simply a "militia," but a
"well-regulated militia." Thus the phrase "well-regulated militia" was chosen to
refer to an organized military force subject to a set of obligations enforced by
the government.320 Because the viability of that kind of military force is the
concern of the second amendment, there is no reason to believe that the private
possession of firearms by persons who are not members of that force is
constitutionally protected. Certainly the "organized militia" defined in 10
U.S.C. § 311--the National Guard and the Naval Militia--corresponds more closely
to a "well-regulated militia" than the "unorganized militia" defined in that
Second, the critics of the collectivist theory are at a loss
to explain how the broad-based definition of the "militia" in the statute
books--or the colonial model of a militia--supports the assertion of an
individual right of gun ownership for all citizens. After all, membership in the
statutory "unorganized militia" is restricted to males of a certain age group,
as was membership in the colonial militia. Are the theorists who advocate a
broad second amendment right willing to pursue their argument to its necessary
conclusion that women and older males have no constitutional right to own guns?
The argument that membership in the "sedentary" or
"unorganized" militia confers a second amendment right has been consistently
rejected by the courts. In upholding the federal machine gun registration law,
the Sixth Circuit Court of Appeals in Warin stated that "there is absolutely no
evidence that a submachine gun in the hands of an individual sedentary or
unorganized militia member would have any, much less a reasonable relationship
to the preservation or efficiency of a well regulated militia."322 The Tenth
Circuit Court of Appeals upheld the same statute against the identical argument
in United States v. Oakes.323 There the court of appeals stated: "[t]o apply the
amendment so as to guarantee appellant's right to keep an unregistered firearm
which has not been shown to have any connection to the militia merely because he
is technically a member of the Kansas militia, would be unjustifiable in terms
of either logic or policy."324
No court in this century has suggested that private
ownership of firearms by members of the "sedentary" or "unorganized" militia is
protected by the second amendment. Instead, as the Supreme Court of New Jersey
summarized the state of the law in Burton v. Sills,325 "under Miller, Congress .
. . may regulate interstate firearms so long as the regulation does not impair
the maintenance of the active, organized militias of the states."326
3. Firearms and Equal Protection
Courts have repeatedly been asked to invalidate various
federal statutes barring certain classes of persons from owning guns, on the
ground that such laws violate the equal protection clause, as applied to the
federal government through the due process clause of the fifth amendment. These
cases are significant because the courts, in unanimously rejecting these equal
protection challenges, have ruled that there is no fundamental right to gun
ownership under the Constitution. Under traditionial equal protection analysis,
the level of judicial scrutiny of a statutory classification is determined by
whether the classification employs inherently suspect criteria, such as race,327
or affects a fundamental right granted by the Constitution.328 In either case,
the court will scrutinize the statute closely to determine if it is necessary to
advance a compelling governmental interest. Statutory classifications affecting
firearms have not been held to infringe a fundamental right.
For example, in United States v. Synnes,329 a defendant
convicted of violating the federal law against firearm possession by a convicted
felon challenged the law on equal protection grounds. The court upheld the
statute, deciding that "the right to bear arms is not the type of fundamental
right to which the 'compelling state interest' standard attaches."330 Instead,
the court subjected the statute to the much less demanding "rational basis"
standard, under which the statute "will not be set aside if any state of facts
reasonably may be conceived to justify it."331
The Ninth Circuit Court of Appeals rejected application of
fundamental rights analysis to gun possession in even stronger terms in United
States v. Karnes.332 In upholding the federal law prohibiting gun owndership by
those dishonorably discharged from the armed forces, the court wrote:
none [of the defendants] are engaged in conduct--possession
of firearms--that should be fostered, nor protected nor are the rights at issue
of the type that could not be constitutionally regulated by any statute, nor is
the interest here similar to any of those that are presently considered
Other courts similarly have upheld firearms statutes against
equal protection attack by applying "rational basis" scrutiny because no
fundamental right was affected.334
An equal protection challenge to a federal firearms statute
reached the Supreme Court in Lewis v. United States.335 The statute in question
was the federal prohibition against ownership of firearms by convicted
felons.336 The issue was whether the fifth amendment due process clause barred a
conviction under the statute when the defendant's prior felony conviction was
obtained in violation of his constitutional right to counsel.337 In rejecting
the constitutional challenge, the Court stated that "[t]hese legislative
restrictions on the use of firearms are neither based upon constitutionally
suspect criteria, nor do they trench upon any constitutionally protected
liberties."338 The Court cited its decision in Miller in support of this
proposition. It upheld the statutory scheme under the rational basis test:
"Congress could rationally conclude that any felony conviction, even an
allegedly invalid one, is a sufficient basis on which to prohibit the possession
of a firearm."339
The Court's statement that a statute denying a class of
persons the right to own a gun does not "trench upon any constitutionally
protected liberties"340 is a definitive statement that individual gun ownership
for private purposes is not a constitutional right. The Lewis decision, although
rendered in an equal protection context, strongly validates the lower courts'
consensus interpretation of Miller as recognizing a constitutional right to own
a gun only when such gun ownership is necessary to the functioning of the
B. The Amendment as a Restraint on State Action
1. The Early Supreme Court Cases
Because of the absence of federal firearms laws until the
1930s, the early second amendment cases addressed the amendment's applicability
to state statutes. Because these pre-Miller decisions found that the amendment
does not restrain state action, they avoided a detailed discussion of its scope
In United States v. Cruikshank,341 the defendants had been
indicted for violating the 1870 Act to Enforce the Right of Citizens of the
United States, which punished interference with rights secured by the
Constitution and laws of the United States.342 One of the rights alleged to have
been interfered with was "the right to keep and bear arms for a lawful
The Court held this count of the indictment defective
because the asserted right was not one secured by the Constitution.
The second and tenth counts are equally defective. The right
there specified is that of bearing arms for a lawful purpose. This is not a
right granted by the Constitution. Neither is it in any manner dependent upon
that instrument for its existence. The second amendment declares that it shall
not be infringed; but this, as has been seen, 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.344
The holding of Cruikshank that the second amendment is a
limitation only on federal, not state power, was reaffirmed by the Supreme Court
in Presser v. Illinois.345 Presser involved a second amendment challenge to an
Illiois statute which prohibited all bodies of men, other than the regularly
organized volunteer militia, from associating together as military
organizations, or drilling or parading with arms without a license.346 The
defendant had violated the statue by leading a parade of rifle-bearing members
of a German nationalist organization without obtaining a permit. Citing
Cruikshank, the Court held that the second amendment "is a limitation only upon
the power of Congress and the National government, and not upon that of the
The Presser case, moreover, is notable for its treatment of
the defendant's asserted right to participate in a private military organization
and to be armed for that purpose. In addition to his second amendment challenge,
the defendant argued that such rights are guaranteed by the privileges and
immunities clause of the fourteenth amendment.348 The Supreme Court posed the
issue as whether a citizen who is not a member of the "organized volunteer
militia" has a constitutional right to participate in military activities.349
The Court ruled that the Constitution grants no such right.
Military organization and military drill and parade under
arms are subjects especially under the control of the government of every
country. They cannot be claimed as a right independent of law. Under our
political system they are subject to the regulation and control of the State and
Federal governments, acting in due regard to their respective prerogatives and
powers. The Constitution and laws of the United States will be searched in vain
for any support to the view that these rights are privileges and immunities of
citizens of the United States independent of some specific legislation on the
The Court's rejection of the defendant's privileges and
immunities argument in Presser is directly responsive to the theory advanced by
some proponents of broad individual firearms rights that the Constitution
guarantees a fundamental right to bear arms to resist governmental tyranny.351
Implicit in such a theory is that there is a constitutional right to engage in
armed military activity independent of the government's control.352 That theory
was rejected by the Presser Court. The Presser holding was relied upon by one
lower court in rejecting a second amendment challenge to an injunction against
the paramilitary operations of the Ku Klux Klan.353 The court concluded that
"the [s]econd [a]mendment does not imply any general constitutional right for
individuals to bear arms and form private armies.354
Although Presser held the second amendment inapplicable to
the states, there is dicta in the opinion suggesting that the Constitution does
limit the power of the states to interfere with the right to keep and bear arms,
at least to the extent that state law may threaten the availability of the
militia for federal use.
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.355
The Court upheld the Illinois statute regulating parading
with arms because it did not have the feared effect on federal prerogatives.356
At least one commentator has interpreted this passage to
mean that the second amendment protects "the right of the Federal Government to
have at its disposal a militia, the right of whose members 'to keep and bear
arms' may not be infringed by state governments."357 Whatever the Presser dicta
means, it surely does not address the second amendment, because the dicta itself
makes clear that it is "[l]aying the constitutional provision in question out of
view."358 Moreover, it is doubtful that the passage has any modern significance
as a suggestion of a constitutional restraint on state power respecting
firearms. The Court's concern clearly was the availability of arms for state
militias during the time the militias were in the service of the federal
government. Since state militias today are a part of the National Guard--armed
by the federal government and not by privately owned arms--the availability of
militia forces for federal use is unaffected by laws regulating private gun
ownership by individuals.359
Finally, it is worth noting that the Court's concern in
Presser was ensuring an effective militia for use by the federal government in
"maintaining the public security."360 This concept of the militia is the polar
opposite of the view taken by the critics of the collectivist theory who view
the militia as the body of citizens armed to resist governmental tyranny. The
Supreme Court in Presser wanted to preserve the federal power under the militia
clause of the Constitution and "[t]o provide for calling forth the militia to
execute the laws of the Union [and] suppress insurrections."361 Presser
indicates that the militia must be seen as a military instrument to be used by
the government, not as a term describing the armed citizenry standing at the
ready to resist government by force of arms.
2. The Second Amendment and the Modern Incorporation
Cruikshank, Presser, and Miller v. Texas362 were decided
during the era when the prevailing view, as articulated by Chief Justice
Marshall in Baron v. Mayor of Baltimore,363 was that the Bill of Rights does not
apply to and restrain the states. Since that time, constitutional jurisprudence
has seen the selective application to the states of most of the first ten
amendments through the due process clause of the fourteenth amendment.364
Because no second amendment case involving a challenge to a state or local
statute has reached the Supreme Court since 1894, the question arises whether
the Supreme Court would find the second amendment right to be an element of due
process under the fourteenth amendment and thereby applicable as a restraint on
For the Court to do so would be difficult to reconcile with
the rationale of the Miller decision. The Miller opinion made it clear that the
central concern of the second amendment is to protect an important state
prerogative against federal encroachment--specifically, the availability of
state militia forces.365 As the historical account in section II shows, the
amendment was intended to protect state interests against federal power, not
individual rights against state power. If the amendment's purpose is to protect
an important state interest, it would be paradoxical to interpret it also as a
restraint on state power. As one court has written, "[t]he chances appear remote
that this amendment will ultimately be read to control the States, for unlike
some other provisions of the Bill of Rights, this is not directed to
guaranteeing the rights of individuals, but rather . . . to assuring some
freedom of State forces from national interference."366
With the exception of one pre-Miller ruling of the Idaho
Supreme Court,367 since Cruikshank, the courts have unanimously held the second
amendment inapplicable as a restraint on state power.368
As a result, all successful challenges to state or local
firearms statutes since Miller have been brought under "right to keep and bear
arms" provisions of state constitutions. The state constitutional provisions
which have invalidated these laws use language which is far broader than the
language of the second amendment and which divorces the right to keep and bear
arms from the state's interest in an effective militia.369
The preceding analysis yields a number of conclusions about
the second amendment which are repeatedly recognized by the courts, but
frequently go unmentioned in the debate over gun control.
First, the second amendment was passed as an assurance to
the states that they would have the right to maintain their own militias. Such
militias were to be used as the centerpiece of the nation's military power, as
an alternative to a large standing army, as a tool for the states to ensure
public order, and as a means for the states to defend against the encroachment
of federal power. Second, the second amendment does not operate as a restraint
on the states. It acts as a restraint on the federal government. Third, there is
no substantial historical evidence for the claim that the second amendment
guarantees an individual right to have arms for any purpose other than
participation in a state-regulated militia. Fourth, as long as federal gun laws
do not adversely affect the organized state militias, these laws should
encounter no second amendment problems. Fifth, because the state militias no
longer rely on the use of privately-owned firearms by their active members,
federal regulation of private gun ownership poses no threat to state militias,
and therefore raises no constitutional issue. This is demonstrated by the
remarkable unanimity of federal and state courts in upholding the constitutional
validity of firearms laws against second amendment challenges.
In the light of the historical evidence and the consistent
rulings of the courts rejecting the existence of a constitutional barrier to
strong gun laws, perhaps the time has come for our elected representatives and
their appointees to resist the temptation to invoke the second amendment as the
all-purpose excuse for opposition to such laws. If they are unwilling to support
proposals such as a mandatory waiting period for handgun purchases or a
prohibition of assaualt weapons, perhaps it is time they explain their
opposition on policy grounds. Perhaps they should explain why such proposals
should not be enacted, not pretend that they cannot become law because of the
Who has cause to be embarrassed by the second amendment?
Actually, no one. The second amendment was simply an effort to address the
proper distribution of military power in our society. It did so in a manner that
made sense in the historical context of colonial America, but which has lost its
resonance for modern-day America because of changes in the nature and role of
the citizen army the amendment was intended to protect. This does not mean that
the amendment is "embarrassing." It means that its importance has eroded over
time. It is not the second amendment itself that is the occasion for
embarrassment. It is, rather, the misuse of the second amendment by so many of
those who oppose new government initiatives against gun violence.
- . U.S. CONST. amend II
- . Hearings of the Senate Comm. on the Judiciary on Drugs and Drug Abuse.
101st Cong., 1st Sess. (1989) [herinafter Judiciary Hearings] (testimony of
- . Id.
- . S. 1236-Brady Handgun Violence Prevention Act, Hearings Before the
Subcommittee on the Constitution of the Senate Committee on the Judiciary,
101st Cong., 1st Sess. (1989) [hereinafter Constitution Hearings] (testimony
of James Jay Baker, NRA Director of Federal Affairs.)
- . See.e.g., Caplan, Restoring the Balance: The Second Amendment Revisited,
5 Fordham URB LJ 31 (1976); Dowlut, The Right to Arms: Does the Constitution
or the Predilection of Judges Reign? 36 OKLA L. REV. 65 (1983); Gardiner, To
Preserve Liberty--A Look at the Right to Keep and Bear Arms, 10 N. KY. L REV.
63 (1982); Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of
the Second Amendment, 9 HARV. J.L. & PUB POL'Y 559 (1986); Kates, Handgun
Prohibition and the Original Meaning of the Second Amendment, 82 MICH L REV
204 (1983); Lund, The Second Amendment, Political Liberty, and the Right to
Self-Preservation, 39 ALA L. REV. 103 (1987)
- . See Dowlut, supra note 5, at 90; Gardiner, supra note 5, at 75; Hardy,
supra note 5 at 602; Kates, supra note 5, at 213; Lund, supra note 5, at
- . Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 642
- . See Caplan, supra note 5, at 32-36; Caplan, Handgun Control: A Reply to
Mayor Jackson, 10 N.C. CENT. L.J. 53, 54 (1978).
- . Evidence of this can be found in numerous places, including the
Declaration of Resolves of the First Continental Congress and the various
state constitutions and declarations of the 1770s and 1780s. For example, the
Maryland Declaration of Rights of 1776 specifically states in Article III that
"the inhabitants of Maryland are entitled to the common law of England." 1 B.
SCHWARTZ. THE BILL OF RIGHTS: A DOCUMENTARY hISTORY 217, 280 (1971).
- . See. e.g., RUTLAND. THE BIRTH OF THE BILL OF RIGHTS 4 (1955); see also
FRIEDMAN. A HISTORY OF AMERICAN LAW (1973).
- . United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942). rev'd on other
grounds, 319 U.S. 462 (1943); Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d
847 (1976); Emery, The Constitutional Right to Keep and Bear Arms, 28 HARV. L.
REV. 473, 475-76 (1915); Note, Constitutional Limitations on Firearm
Regulation, 1969 DUKE L.J. 773, 794-98 (1969)
- . See The Assize of Arms, in 2 ENGLISH HISTORICAL DOCUMENTS 416 (Douglas
ed. 1953). Weatherup. Standing Armies and Armed Citizens: A Historical
Analysis of the Second Amendment. 2 HASTINGS CONST. L.Q. 961, 964 (1975).
- . SCHWOERR. NO STANDING ARMIES 14 (1974).
- . Id. at 25-28.
- . Statute of Northhampton, 1938, 2 Edw. 3. ch 3.
- . Weatherup, supra note 112, at 965.
- . 2 Edw. 3. ch 3.
- . Statute of Winchester, 1603. 1 Jac. 1. ch. 25.
- . 4 TRAILL. SOCIAL ENGLAND 42 (1895).
- . 1670. 22 Car. 2. ch 25, § 3.
- . Id.
- . 1 B. SCHWARTZ, supra note 9, at 43.
- . Opponents of strong gun laws have asserted that there is a difference
between simply possessing arms and publicly "bearing" them. See Caplan, supra
note 5, at 54; Dowlut, supra note 5, at 66. They argue that laws such as the
Statute of Northhampton might prohibit the public bearing of arms, but that
the right to keep them is unqualified. However, this argument ignores the fact
that the 1670 law restricts the class of persons who were entitled to keep
- . See infra notes 51-64 and accompanying text.
- . See. e.g. The Firearms Act, 1937, 1 Edw. 8 & 1 Geo. 6, ch. 12; The
Firearms Act, 1920, 10 & 11 Geo. 5. ch 43; The Pistols Act, 1903, 3 Edw.
7, ch. 18; The Gun License Act, 1870, 33 & 34 Vict. ch. 57. The 1937 Act
prohibits the purchase or possession of firearms or ammunition by ordinary
citizens unless the individual has been issued a firearm certificate by the
local chief of police. Such certificates may only be granted for compelling
reasons, and may be revoked at any time. Furthermore, the Act provides that
all firearms manuacturers and dealers must be registered, and can only sell to
citizens who have obtained a police certificate. And, all firearms
transactions must be registered. 1 Edw. 8 & 1 Geo. 6, ch. 12. For a
detailed discussion of the 1920 Firearms Act, see Brabner-Smith, Firearm
Regulation, 1 LAW & CONTEMP. PROBS. 400, 403 (1934).
- . Rohner, The Right to Bear Arms: A Phenomenon of Constitutional History,
16 CATH. U.L. REV. 53, 63 (1966).
- . Caplan, supra note 5, at 39; see also Halbrook, The Jurisprudence of the
Second and Fourteenth Amendments, 4 GEO MASON U.L. Rev. 1, 7 (1981).
- . 1 BLACKSTONE. COMMENTARIES ON THE LAWS OF ENGLAND 139 (1979).
- . Id.
- . The English Bill of Rights of 1689, 1689, 1 W. & M. 2. ch. 2.
- . See generally. Weatherup, Standing Armies and Armed Citizens: A
Historical Analysis of the Second amendment, 2 HASTINGS CONST. L.Q. 961,
- . Id. For purposes of this article, the terms "army" or "standing army"
refer to a professional army consisting of full-time soldiers. The term
"militia" refers to a military or police force drawn from the citizenry at
large, and called upon only as needed to meet specific emergency events.
- . Id. at 964.
- . D. WILLSON. A HISTORY OF ENGLAND 385-441 (1967).
- . Id.
- . 1 MACAULAY. HISTORY OF ENGLAND 268 (1980).
- . Id. at 269; see also SCHWOERR, supra note 13, at 17.
- . MACAULAY, supra note 36, at 268-70; 1 W. STUBBS. THE CONSTITUTIONAL
HISTORY OF ENGLAND 470-71, 633-35 (6th ed. 1873); 2 W. STUBBS. THE
CONSTITUTIONAL HISTORY OF ENGLAND 290-94 (4th ed. 1896).
- . MACAULAY, supra note 36, at 268.
- . Id.
- . Id. at 268-69.
- . 1 W. STUBBS. supra note 38, at 470-71.
- . Id.
- . Id.; see also Weatherup, supra note 33, at 968-69.
- . D. WILLSON supra note 34, at 385-91. The soldiers supported Cromwell
largely because Parliament proposed to disband the army, thus depriving them
of their livelihood.
- . Id.; First Militia Act. 1661, 13 Car. 2, ch. 6;; see also Second Militia
Act, 1662, 14 Car. 2. ch. 3.
- . Weatherup, supra note 33, at 970.
- . Id. at 971. SCHWOERR, supra note 13, at 146. These words would be echoed
a century later as the Framers of the United States Constitution debated the
merits of a professional army versus a militia.
- . Id.; see also The Test Act of 1678, 1678, 30 Car. 2, ch. 2; The Test Act
of 1673, 1673, 25 Car. 2. ch. 2.
- . See Weatherup, supra note 33, at 971.
- . Bill of Rights, 1688, 1 W. & M. 2, ch. 2; see also Weatherup, supra
note 33, at 974.
- . See Halbrook, supra note 27, at 7.
- . 1 B. SCHWARTZ, supra note 9, at 42-43.
- . See Caplan, supra npte 5, at 34; Halbrook, supra note 27, at 7.
- . Halbrook, supra note 27, at 7.
- . One commentator claims that there is, in fact, historical evidence that
James II literally took weapons away from Protestants. Kates, supra not 5, at
- . See Weatherup, supra note 12 at 971-73.
- . See Feller & Gotting, The Second Amendment: A Second Look, 61 Nw.
U.L. REV 46 (1966); Rohner, supra note 26, at 63.
- . Feller & Gotting, supra note 58, at 48-49.
- . Id,; see also Note, supra note 11, at 795 n.78.
- . See Feller & Gotting, supra note 58, at 48.
- . See supra text accompanying notes 18-21.
- . See supra note 25 and accompanying text; see also Burton v. Sills. 53
N.J. 86. 96. 248 A.2d 521, 526 (1968) appeal dismissed, 394 U.S. 812 (1969)
(citing the English Bill of Rights as support for the view that the common law
did not recognize any absolute right to keep or bear arms).
- . See Rohner, supra note 26, at 59.
- . Until the Revolutionary War, the American colonists never had a standing
army. Instead, by the 1760s, each colony had adopted a militia law modeled on
the English system. The laws required that ever male of military age (either
18-45 or 18-60) be enrolled in service and provide and keep at his own expense
specified arms and equipment. Training usually took up four to eight days each
year, and attendance was enforced by heavy fines. W. RIKER, SOLDIERS OF THE
STATES THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY 11-12 (1957).
- . Rohner, supra note 26, at 56-57. Other, more practical reasons made the
militia system appealing to the colonies. The colonies were very short of
revenue and did not want to pay for an expensive professional army. In
addition, frontier life and the need for self-sufficiency created a climate in
which almost everyone had guns, whether to hunt food or to fight off bandits
and Indians. The populace was already well trained in the use of weapons and
generally had their own, making the militia much cheaper and more effective.
Note, supra note 11, at 796.
- . Feller & Gotting, supra note 58, at 49-50.
- . Rohner, supra note 26, at 56 n.18.
- . Feller & Gotting, supra note 58, at 50; see also THE COMPLETE
JEFFERSON 23 (1943); 1 B. SCHWARTZ supra note 9, at 217.
- . THE COMPLETE JEFFERSON, supra note 69, at 23.
- . Rohner, supra note 26, at 56.
- . The colonists' dismay with George III's army is reflected in the
Declaration of Independence, where one of the grievances listed is that George
III "has kept among us, in time of peace, standing armies, without the consent
of our legislatures . . . [and] is at this time transporting large armies . .
. to complete the works of death, desolation, and tyranny." See 1 B. SCHWARTZ
supra note 9, at 251, 253 ("keeping a standing army in these colonies, in
times of peace, without the consent of the legislature of that colony . . . is
against the law."). In addition, the colonists reasoned that they were
entitled to the same rights as Englishmen, and since the English Bill of
Rights provided that no standing army could be maintained without Parliament's
consent, they reasoned that no standing army should be maintained in America
without the consent of the colonial legislatures. Feller & Gotting, supra
note 58, at 49-51. George III, of course dismissed this point, asserting that
the colonies were under his absolute rule. Id.
- . 1 B. SCHWARTZ, supra note 9, at 251.
- . Id.
- . See supra notes 51-64 and accompanying text.
- . 1 B. SCHWARTZ, supra note 9, at 231.
- . Unfortunately, records of the state conventions consist mostly of
"unrevealing formal entries," and it is virtually impossible to learn anything
about the discussions or intentions of the drafters. Id. at 232.
- . The four were: Pennsylvania, North Carolina, Vermont, and Massachusetts.
Feller & Gotting, supra note 58, at 54-56.
- . 1 B. SCHWARTZ, supra note 9, at 234-35.
- . Id. at 231.
- . Id.
- . Id. It was the "first true Bill of Rights in the modern American sense,
since it is the first protection for the rights of the individual to be
contained in a Constitution adopted by the people acting through an elected
- . Id. at 236-41.
- . Id. at 239.
- . Id. at 256-61.
- . Id. at 262.
- . Id. at 265-66.
- . Id. at 265-75. The Delaware Declaration combined Virginia's Article XIII
and Pennsylvania's Article VIII, but did not mention any right to bear arms.
The Maryland Declaration repeated Virginia's phrasing, with no mention of
arms-bearing. Id. North Carolina borrowed heavily from Pennsylvania's Article
VIII, and included a right to bear arms, though it only listed a right to bear
arms in the defense of the state, deleting Pennsylvania's reference to
- . Id. at 301-13.
- . Id. at 312.
- . Id. at 342-44. The Vermont Declaration of Rights includes articles taken
verbatim from Articles VIII and XIII of the Pennsylvania Declaration, thus
asserting the right to bear arms. Massachusetts adopted most of Pennsylvania's
Article XIII, except that it uniquely provided for a right to keep, as well as
bear arms, though the right was granted "for the common defense" only. Id. at
342-43. New Hampshire's Bill of Rights repeated much of the language of
Pennsylvania's Article VIII and Virginia's Article XIII. No right to bear arms
is mentioned. Id. at 376-78.
- . See supra note 91 and accompanying text.
- . 1 B. SCHWARTZ, supra note 9, at 383.
- . Id.
- . This absence can only be explained by the weakness of the central
government established by the Articles. Since the central government was one
of strictly limited powers, people did not view it as a threat to individual
liberties. Since these liberties were clearly protected by the states, there
was no need for a federal Bill.
- . ARTICLES OF CONFEDERATION art. II.
- . Id. art. IV.
- . Rutland, supra note 10, at 108 (letter from George Washington to James
Madison, November 5, 1786); see also 1 FARRAND, RECORDS OF THE FEDERAL
CONVENTION 23-26 (1974) (remarks of Governor Randolph).
- . Rutland, supra note 10, at 108-09.
- . Id. at 108. Apparently, "neither Mason nor his colleagues . . . found it
necessary to come into the convention hall ready to serve as watchdogs for
civil liberty.," Id. The public was satisfied with the well-established rights
laid out in the state constitutions, and the Convention was concerned with the
broader question of strengthening the central government.
- . 3 FARRAND, supra note 98, at 588.
- . Id. at 588.
- . Voting was done by state, not by individual delegates.
- . Rutland, supra note 10, at 112. Apparently, there was rather widespread
agreement among the delegates that the new government would not infringe the
state bill of rights. Id. Mason's response, that the laws of the United States
were to be paramount to any state laws or bill, fell on deaf ears. In any
event, the Anti-Federalists' delay cost them any chance at getting the
exhausted, impatient delegates to support a Bill of Rights.
- . Id.
- . 5 J. ELLIOT. THE DEBATES IN THE SEVERAL STATE CONVENTIONS OF THE
ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION
AT PHILADELPHIA IN 1787, at 217 (1836); see also 1 FARRAND, supra note 98, at
- . 5 J. ELLIOT, supra note 106, at 217.
- . Id. at 248.
- . Rutland, supra note 10, at 111.
- . 5 J. ELLIOT, supra note 106, at 250-59, 269. The arguments ranged from
Hamilton's blasts, claiming that the state governments were "so much
unnecessary furniture" whose weakness threatened the existence of the nation,
to less strident claims that a stronger central government did not mean an
oppressive government and that the states would still have an important role
to play. Id.
- . U.S. CONST. art I. § 8, cl. 12, 15, 16, art. II. § 2, cl. 1.
- . Wiener. The Militia Clause of the Constitution, 54 HARV. L. REV. 181,
183 (1940) (reprinting a September 24, 1776 letter of George Washington).
- . Id. at 183.
- . Id.
- . Id. at 184-85.
- . 5 J. ELLIOT, supra note 106, at 440.
- . Id. at 445.
- . 2 FARRAND, supra note 98, at 384-88.
- . Id.
- . See id. The Articles of Confederation had made it extremely difficult to
organize an army at all, and the country had been relying on the militia
system as the core of the country's defense. Now, Congress was being given the
power to raise and maintain a substantial army. U.S. CONST. art 1, § 8, cl. 2.
- . 2 FARRAND, supra note 98, at 329-30.
- . See id. at 330.
- . Id. Indeed, the delegates defeated a proposal by George Mason to preface
the militia clause of the Constitution with a warning against the danger of
standing armies, arguing that doing so would set "a dishonorable mark of
distinction on the military class of citizens." Id. at 617.
- . Id. at 617.
- . 5 J. ELLIOT. supra note 106, at 440; see also A. PRESCOTT. DRAFTING THE
FEDERAL CONSTITUTION 517 (1968)
- . 5 J. ELLIOT. supra note 106, at 445.
- . See id.
- . 3 J. ELLIOT. supra note 106, at 384-88.
- . Id. One of the fears was that the government would march the militia of
one state into other states, not only suppressing fellow states, but also
dragging militiamen far away from their homes. Id. at 378.
- . U.S. CONST. art 1, § 8, cl. 15.
- . 3 J. ELLIOT. supra note 106, at 379.
- . Id.
- . Id. at 382; 2 FARRAND. supra note 98, at 384-88.
- . 3 J. ELLIOT. supra note 106, at 379.
- . 2 FARRAND. supra note 98, at 384-88.
- . W. RIKER. supra note 65, at 15-16.
- . 5 J. ELLIOT. supra note 106, at 445; see also W. RIKER. supra note 65,
- . 2 FARRAND. supra note 98, at 331.
- . U.S. CONST. art I, § 8, cl. 16.
- . See id. art. I, § 8, cl. 15.
- . See id. art. II, § 2, vl. 15.
- . See id. art. I, § 8, cl. 12.
- . See infra notes 179-92 and accompanying text; see also 3 J. ELLIOT,
supra note 106. at 37-87.
- . 2 FARRAND, supra note 98, at 385.
- . 3 J. ELLIOT, supra note 106, at 378-87.
- . 1 B. SCHWARTZ. supra note 9, at 301-13 (containing the New York
Constitution of 1777).
- . 3 J. ELLIOT. supra note 106, at 379.
- . 5 J. ELLIOT. supra note 106, at 445.
- . Halbrook. supra note 27, at 9; see also Caplan, supra note 5, at 34;
Shalhope. The Armed Citizen in the Early Republic. 49 LAW & CONTEMP PROBS
125, 133 (1986).
- . 5 J. ELLIOT. supra note 106, at 269.
- . 1 B SCHWARTZ. supra note 9, at 468-69.
- . Id.
- . 3 FARRAND. supra note 98, at 207-09, 260.
- . 1 B SCHWARTZ. supra note 9, at 444-46.
- . Id.
- . Id. at 505.
- . Id.
- . Id. at 506.
- . Id. at 528; see also THE FEDERALIST NO. 84 (A. Hamilton) (Wright ed.
- . 1 B SCHWARTZ. supra note 9, at 466. The focus then shifted to whether
the amendments should be adopted prior to ratification, or whether the states
would ratify the Constitution, with the assurance that amendments would be
quickly adopted by the new Congress.
- . Id. at 468-69.
- . Id. at 468.
- . Id.
- . Id. at 487.
- . 1 FARRAND. supra note 98, at 207-08.
- . Id. at 207-09, 285.
- . 1 B SCHWARTZ. supra note 9, at 530.
- . 3 J ELLIOT. supra note 65, at 381.
- . Id. at 382.
- . 2 B SCHWARTZ. supra note 9, at 527-28.
- . Id. at 627.
- . Id.
- . Id. The Pennsylvania delegates had earlier decided to vote on the
amendments as a group, and not one-by-one.
- . Id. at 670.
- . Id. at 670-72.
- . Id. at 628.
- . Id. at 758, 762.
- . Id. at 446-50. Virginia's extensive debate over a Bill of Rights is not
surprising, since Virginia had been the first state to place a Declaration of
Rights in its state constitution. In addition, the Virginia Convention
included many influential Anti-Federalists, including George Mason, Patrick
Henry, and Richard Henry Lee.
- . 1 B SCHWARTZ. supra note 9, at 446; U.S. CONST art 1, § 8, cl.16
- . 3 J ELLIOT. supra note 106, at 378-79.
- . Id. at 379.
- . Id. at 380. The army, in turn, would be used, as it traditionally had
been in English/American history, to destroy people's liberties, and dominate
a weak citizenry. Id.
- . Id. at 381.
- . Id. at 382-83, 419.
- . Id. at 384-88.
- . Id.
- . Id. at 386.
- . Id. at 421.
- . 1 B SCHWARTZ. supra note 9, at 312. The New York Constitution of 1777
had also provided that the state was to supply arms for the militia. Id.
- . 3 J ELLIOT. supra note 106, at 379.
- . Id. at 380.
- . 2 B SCHWARTZ. supra note 9, at 831.
- . Id. at 765.
- . Id. at 842.
- . Id.
- . Id. at 843.
- . Id.
- . Id.
- . Id. at 842.
- . Id. at 933.
- . Id. at 852. Its amendments were modeled on Virginia's and included very
similar language regarding the militia, standing armies and the right to bear
- . Id. at 852. In fact, North Carolina only joined the Union after Congress
had passed the Bill of Rights in 1789. Its proposed amendments were taken
verbatim from Virginia's.
- . Id.
- . Id. at 1019-20.
- . Id. at 840-45
- . Id. at 1008.
- . Id. at 1026.
- . Id. at 1107. He claimed it would allow Congress to declare who was
religiously exempt from military service and thereby prevent people from
bearing arms as militiamen. Having thus weakened the militia, Congress would
have an excuse to raise a standing army. "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." Id.
- . Id. at 1009-10.
- . U.S. CONST. amend. II.
- . 2 B SCHWARTZ. supra note 9, at 1150. Unfortunately, the Senate's debates
were closed to the public and not well-recorded.
- . Id. at 1153-54.
- . Id.
- . Id. Another possible reason for rejecting the proposed language is that
the phrase "for the common defense" might have implied that the amendment was
concerned with the defense of the nation as a whole, rather than with the
defense of the states. The Anti-Federalists certainly would not have wanted
such an interpretation read into the amendment.
- . Rutland, supra note 10, at 212; see also 2 B. SCHWARTZ. supra note 9, at
- . See infra notes 352-56 and accompanying text.
- . See infra notes 256-369 and accompanying text.
- . J. MAHON. THE AMERICA MILITIA: DECADE OF DECISION. 1789-1800, at 2
- . W. RIKER. supra note 65, at 11.
- . Id.
- . Id. at 12. Though not wholly inadequate, the militias were undisciplined
and during the Revolution had often been mutinous. Washington and other
military leaders were frequently exasperated by the irresponsibility of the
militia. In short, the militia of the states, which was in the 1780s the only
military force in the nation, was only partially trained and quite unreliable.
- . J. MAHON. supra note 218, at 5.
- . Id. at 6.
- . Id. Several members of the Constitutional Convention noted that the
states would want to have their own militias available for such a purpose. See
Supra note 137. Furthermore, article I, section 8, clause 15 of the
Constitution specifically provides that Congress may call forth the militia
for the purpose of suppressing insurrections. U.S. CONST. art I § 8, cl. 15.
- . J. MAHON. supra note 218, at 6. Some pro-gun commentators have argued
that a further purpose of the militia was to assure an armed citizenry which
could rise up in revolt against any sort of oppressive government. Caplan,
supra note 5, at 50-52; Halbrook, supra note 27, at 9. This would imply that
the second amendment was designed to allow individuals to have arms in order
to fight off oppressive state governments. But as we have seen, there was
simply no discussion whatsoever of this possibility during the writing of the
Constitution or the second amendment. Furthermore, the desire to use the state
militias for internal police control seems to contradict this concept.
- . See supra notes 151-216 and accompanying text.
- . Caplan, supra note 5, at 50-52.
- . Militia Act, ch 33, 1 Stat. 271 (1792)
- . W. RIKER. supra note 65, at 18. Under this plan, the key to the militia
would be a corps of very young men, who would train extensively each year.
Everyone else up to the age of 60 would train only 3 or 4 days per year.
- . 1 Stat. 271.
- . J. MAHON. supra note 218, at 19-20 (discussing framework of the militia
under the Militia Act).
- . W. RIKER. supra note 65, at 18. For an excellent discussion of the
history of the militia during the 1800s see Wiener, supra note 112, at 183.
- . W. RIKER. supra note 65, at 22. The first step taken by the national
government to help the states was a 1798 act permitting the states to purchase
muskets at national arsenals. When the states largely ignored the offer,
Congress in 1808 enacted a permanent annual appropriation of $200,000 to buy
muskets for distribution among the states in proportion to thei milita
enrollment. Act of April 23, 1808, ch. 55, 2 Stat. 490 (1808). This grant
provided more money than that spent by all of the states annually on the
equipment, organization and maintenance of the militia. Id. Although the
states were given grants in proportionate amounts and thus had large
inducements to fully report their annual muster counts after 1808, they
allowed their militias to completely run down.
- . W. GANOE. THE HISTORY OF THE UNITED STATES ARMY 122-24 (1924).
- . Weiner, supra note 112, at 187. As one commentator noted, "Mars was less
in evidence than Bacchus." Id.
- . RICHARDSON. MESSAGES AND PAPERS OF THE PRESIDENTS 346 (1904) (reprinting
the annual message to Congress of December 3, 1901).
- . Dick Act. ch. 196, 32 Stat. 775 (1903).
- . See H.R. REP No. 1094, 57th Cong., 1st Sess. (1902); S. REP. No. 2129,
57th Cong., 2d Sess. (1902).
- . See H.R. REP. No. 1094, 57th Cong., 1st Sess. (1902); S. REP. No. 2129,
57th Cong., 2d Sess. (1902).
- . S. REP. No. 2129. 57th Cong., 2d Sess. (1902). President Roosevelt and
Secretary of War Root both urged passage of the 1903 Act. The President urged
that a practical and efficient system be adopted in place of the current
obsolete laws. Id. The Secretary of War urged that the law be passed, since he
felt it absurd that a nation which maintained only a small regular army and
depended upon unprofessional citizen soldiery for its defense should run along
as the country had done for 110 yearss, under a militia law which never worked
satisfactorily in the beginning and which had become completely obsolete long
- . 32 Stat. 775. Today, the "organized" militia consists of the National
Guard and the Naval Militia. The "unorganized" militia consists of practically
everyone else who is an "able-bodied male" between the ages of 17 and 45. 10
U.S.C. § 311 (1982).
- . 32 Stat. 775. Section 13 of the Act authorized the Secretary of War to
issue standard service arms to the National Guard. Although all able-bodied
males between 18 and 45 were designated members of the reserve militia, such
persons were neither supplied arms by the federal government prior to call to
duty with the National Guard, nor were they required to furnish their own
arms. 32 Stat. at 777.
- . 32 Stat. 775 (1903). Today, these provisions can be found at 32 U.S.C.
§§ 701-06 (1982).
- . Act of May 2, 1792, ch. 28, 1 Stat. 264 (1792) (authorizing the
President to call up state militia in certain circumstances).
- . W. RIKER. supra note 65, at 50.
- . Act of May 27, 1908, ch. 204, 35 Stat. 399 (1908); see W. RIKER. supra
note 65, at 61-68.
- . National Defense Act, ch 134, 39 Stat. 166 (1916).
- . Weiner. supra note 1112, at 199-02; see also W. RIKER. supra note 65, at
80-82. Under the 1916 Act, states were required to conform to provisions of
the law in order to obtain federal aid. More drills were required and
qualifications for National Guard officers were prescribed. Inspections and
approvals by the Army were mandated for National Guard units and the President
gained more control of the Guard. 39 Stat. 166. The Act gave the National
Guard the two things it wanted most: money and recognition. In 1916, the
federal government spent about $6.5 million on the National Guard. As a result
of the Act nearly $58 million was appropriated for the Guard. The National
Guard was also able to gain a clear-cut role in the defense system, an
achievement symbolized by the redefinition of the United States Army in 1933.
W. RIKER. supra note 65, at 80. The Act of June 15, 1933 approved the National
Guard as part of the Army. The Act provided for the existence of two military
forces composed of the same militiamen. One was the National Guard of the
states, (the volunteer militia) and the other was the National Guard of the
United States, which consisted of those forces federally recognized, inspected
and approved by the Army. Weiner, supra note 112, at 207-08.
- . 32 U.S.C. && 7014-15 (1982). This is in accordance with the
Constitution. U.S. CONST. art 1 § 8. cl. 16.
- . 32 U.S.C. § 702 (1982).
- . Hays, The Right to Bear Arms. A Study in Judicial Misinterpretation. 2
WM. & MARY L. REV. 381, 392 (1960)
- . 32 U.S.C. § 702 (1982). Another, related argument is that the federal
government may turn the militias against the states. The President may call
out the militia in times of civil strife or insurrection, and put it into the
full service of the federal government. Id.
- . Hays. supra note 251, at 390.
- . This is a central feature of the ideology of the National Rifle
Association. See Halbrook. supra note 27, at 9; see also Caplan, supra note 5,
- . It should also be remembered that at the time the second amendment was
drafted, the states discussed using their militias to put down insurrections.
This is certinly not consistent with the idea of encouraging an armed
"revolution" by the populace.
- . 307 U.S. 174 (1939).
- . 26 U.S.C. §§ 5801-02 (1986).
- . Miller, 307 U.S. at 178.
- . Id.
- . The Miller opinion made historical curiosities of several nineteenth
century state court decisions which had interpreted the second amendment to
guarantee a broad, individual right to own arms for private purposes. See.
e.g., Nunn v State, 1 GA. 243, 251 (1846); State v. Chandler, 5 La. Ann. 489,
490 (1850); Cockrum v. State, 24 Tex. 394, 402 (1859). It should also be noted
that these 19th century decisions pre-date the 1905 Dick Act, which began the
fundamental transformation of the militia into a publicy-funded citizen force
not dependent on firearms supplied by individual militiamen. To the extent
that they invalidated state firearms laws on second amendment grounds, these
early state decisions also were effectively overruled by the Supreme Court's
later holdings that the second amendment does not apply to the states at all.
See infra notes 361-67 and accompanying text.
- . Miller. 307 U.S. at 179.
- . Id. at 180. The Supreme Court's opinion, five years before Miller, in
Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245 (1934), leaves no doubt
that the Court regarded the militia as a government-directed body. The Court
wrote that, subject to the authority of the national government, "the state is
the sole judge of the means to be employed and the amount of training to be
exacted for the effective accomplishment" of the ends of the militia, citing
the second amendment in support. Id. at 260.
- . Miller. 307 U.S. at 178.
- . Dowlut, supra note 5, at 89.
- . This reading of Miller also has obvious implications for pending
legislation to ban semi-automatic assault weapons. Indeed, the military-style
features of such weapons are cited by supporters of proposals to ban their
distribution to the general public. See Hearing on S.446 Before the Subcomm.
on the Constitution of the Senate Comm. on the Judiciary, 100th Cong., 2d
Sess. 24 (1988) (testimony of Philip C. McGuire, former Associate Director,
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms).
- . 131 F.2d 916 (1st Cir. 1942), cert denied sub nom., Velazguez v. United
States, 319 U.S. 770 (1943)
- . 15 U.S.C. §§ 901-10 (1938) (repealed 1968).
- . Cases. 131 F.2d at 923.
- . Id.
- . Id. at 925.
- . Id. at 922.
- . Id.
- . Id.
- . Id.
- . Id.
- . Id.
- . 530 F.2d 103 (6th Cir. 1976).
- . 26 U.S.C. §§ 586 (d), 5871 (1968).
- . Warin. 530 F.2d at 105-06.
- . Id. at 106. Similar conclusions were later reached by the District of
Columbia Court of Appeals in Sandidge v. United States, 520 A.2d 1057, 1058-59
(D.C.). cert. denied. 484 U.S. 868 (1987). and the Supreme Judicial Court of
Massachusetts in Commonwealth v. Davis, 369 Mass. 886, 891 n.9. 343 N.E.2d
847, 850 n.9 (1976).
- . 131 F.2d 261 (3d Cir. 1942).
- . Id. at 266-67.
- . Id. at 266.
- . Id.
- . Id. at 266-67.
- . Id. at 266.
- . United States v. Decker, 446 F.2d 164 (8th Cir. 1971).
- . United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); Stevens v.
United States, 440 F.2d 144 (6th Circ. 1971); United States v. Synnes 438 F.2d
764 (8th Cir. 1971), vacated on other grounds. 404 U.S. 1009 (1972).
- . United States v. Craver, 478 F.2d 1329, 1338 (6th Cir. 1973).
- . United States v. Oakes, 564 F.2d 384 (10th Cir. 1977); Warin, 530 F.2d
- . United States v. Swinton, 521 F.2d 1255 (10th Cir. 1975); United States
v. Kraase, 340 F. Supp. 147 (E.D. Wis. 1972); United States v. Gross, 313 F.
Supp. 1330 (S.D. Ind. 1970), aff'd on other grounds. 451 F.2d 1355 (7th Cir.
- . Cody v. United States, 470 F.2d 34 (8th Cir. 1972).
- . 440 F.2d 144 (6th Cir. 1971)
- . Id. at 149.
- . Warin. 530 F.2d 103.
- . Id. at 106; see also United States v. Kozerski, 518 F. Supp. 1082, 1090
(D. N.H. 1981)
- . 477 F.2d 610 (3d Cir. 1973).
- . Id. at 610.
- . 497 F.2d 548 (4th Cir. 1974)
- . Id. at 550 (quoting Miller. 307 U.S. at 178).
- . 291 N.W.2d 396 (Minn. 1980).
- . Id. at 398 n.1.
- . See. e.g., Sandidge v. United States, 520 A.2d 1057, 1058 (D.C.), cert.
denied, 108 S. Ct. 193 (1987); Kalodimos v. Village of Morton Grove, 103 Ill.
2d 483, 509, 470 N.E.2d 266, 278 (1984); Salina v. Blakesley, 72 Kan. 230,
232-33, 83 P. 619, 620 (1905); Burton v. Sills, 53 N.J. 86, 97, 248, A.2d 521,
526 (1968), appeal dismissed, 394 U.S. 812 (1969); State v. Fennell, 95 N.C.
App. 140, 141, 382 S.E.2d 231, 232 (1989); State v. Vlacil, 645 P.2d 677, 679
- . 859 F.2d 1318 (8th Cir. 1988).
- . Id. at 1320.
- . Id.
- . See. e.g., Kates, supra note 5, at 218. For instance, "the right of the
people peaceably to assemble" in the first amendment, and the "right of the
people to be secure. . . against unreasonable searches and seizures," in the
fourth amendment, function as guarantees to individuals, not to states. U.S.
CONST. amends I, IV.
- . If the courts regarded the second amendment right as belonging to the
states, challenges to firearms statutes based on the amendment would have been
rejected on the basis that the party making the challenge was an individual,
not a state. No second amendment case has been decided on this ground. As
discussed above, the decisive issue has been whether the impact of the
challenged statute on the individual's right to own firearms adversely affects
the state's milita.
- . City of East Cleveland V. Scales, 10 Ohio App. 3d 25, 30, 460 N.E.2d
1126, 1130 (1983); see also United States v. Graves, 554 F.2d 65, 67 n.2 (3d
- . 695 F.2d 261 (7th Cir. 1982), cert. denied. 464 U.S. 863 (1983).
- . Id. at 270.
- . Id.
- . Id. The Court's use of the phrase "individually owned" suggests that, as
in Cases, it is the circumstances of ownership, not simply the nature of the
firearm, that determines its relationship to the militia.
- . See Hardy, supra note 5, at 623-24.
- . 10 U.S.C. § 311 (1982).
- . Id.
- . Id.
- . Id.
- . See Hardy, supra note 5, at 624.
- . See Burton v. Sills, 53 N.J. 86, 97, 248 A.2d 521, 526 (1968), appeal
dismissed, 394 U.S. 812 (1969) (holding that "well-regulated militia" refers
to the active, organized militia of each state).
- . 10 U.S.C. § 311. In addition, the modern "unorganized militia," as
defined in 10 U.S.C. § 311, is entirely unlike the colonial concept of a
militia. As the Supreme Court noted in Miller, other colonial militiamen were
required by law to keep arms for the purpose of participating in militia
activities. Miller. 307 U.S. at 180. Colonial militiamen also were subject to
various training obligations. No such requirements are imposed upon the
"unorganized militia" of today. Only the organized militia--the National Guard
and the Naval Militia--today bears arms and is trained for militia activity,
and those arms are provided by the government.
- . Id. at 106.
- . 564 F.2d 384 (10th Cir. 1977).
- . Id. at 387.
- . 53 N.J. 86, 98, 248 A.2d 521, 527 (1968), appeal dismissed. 394 U.S. 812
- . Id.
- . Loving v. Virginia, 388 U.S. 1, 11 (1967).
- . Roe v. Wade, 410 U.S. 113, 155-56 (1973); Shapiro v. Thompson, 394 U.S.
618, 627 (1969).
- . 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009
- . Id. at 771 n.9.
- . Id. at 771.
- . 437 F.2d 284 (9th Cir. 1971).
- . Id. at 287 (footnoted omittted).
- . See United States v. Ranson, 515 F.2d 885, 891 (5th Cir. 1975); United
States v. Craven, 478 F.2d 1329, 1339 (6th Cir. 1973); United States v. Day,
476 F.2d 562, 568 (6th Cir. 1973). State and local statutory classifications
affecting firearms also have been upheld under the "rational basis" test. See
e.g., Marchese v. California, 545 F.2d 645, 647 (9th Cir. 1976); Fesjian v.
Jefferson, 399 A.2nd 861, 864 (D.C. 1979).
- . 445 U.S. 55 (1980).
- . Id. at 56.
- . Id.
- . Id. at 65 n.8.
- . Id. at 66.
- . Id. at 65 n.8.
- . 92 U.S. 542 (1876).
- . Id. at 548. The current version of this Act is at 18 U.S.C. § 241
- . Cruikshank, 92 U.S. at 553.
- . Id. at 553.
- . 116 U.S. 252, 265 (1886).
- . Id. at 256-57.
- . Id. at 265.
- . Id. at 266 ("No state shall make or enforce any law which shall abridge
the privileges and immunities of citizens of the United States.")
- . Id. at 266.
- . Id. at 267.
- . See Kates, The Second Amendment: A Balanced Approach. S.F. BARR. B.J.
12, 16 (1989) (arguing for "the desirability of citizens being armed against
tyrany . . . ."); see also Lund. supra note 5, at 112 (second amendment
affords "protection against political oppression").
- . Indeed, the individual rights proponents often cite examples of
successful guerilla warfare against governmental authority as illustrations of
the importance of preserving the constitutional right of armed resistance. See
Kates, supra note 351, at 17.
- . See Vietnamese Fishermen's Assoc. v. Knights of the Ku Klux Klan, 543 F.
Supp. 198, 210 (S.D. Tex. 1982).
- . Id. at 210. The Vietnamese Fishermen's case is a dramatic illustration
of the danger to our constitutional form of government and to the rule of law
from a generalized right of armed resistance against "tyranny." Would such a
right not preclude the government from taking measures against the
paramilitary activity of the Ku Klux Klan and other extremist groups who
regard themselves as in revolt against the "tyranny" of governmental policies
with which they disagree? As Dean Roscoe Pound has written: "[A] legal right
of the citizen to wage war on the government is something that cannot be
admitted. . . . 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 90-91 (1957).
- . Presser, 116 U.S. at 265.
- . Id. at 266.
- . Note, Constitutional Limitations on Firearms Regulation, 1969 DUKE L.J.
773, 789 (1969).
- . Presser, 116 U.S. at 265.
- . That Presser imposed no real limitations on the power of the states to
regulate firearms is further supported by the Supreme Court's later ruling in
Miller v. Texas, 153 U.S. 535 (1894). In that case, the Court sustained a
state statute prohibiting the carrying of a dangerous weapon on the person.
Id. at 538. The Court again held that the second amendment functions as a
restraint on federal, not state, action. Id.
- . Presser, 116 U.S. at 265.
- . Id.
- . 153 U.S. 535.
- . 32 U.S. 243 (1883).
- . See. e.g., Malloy v. Hogan, 378 U.S. 1 (1964) (fifth amendment privilege
against self-incrimination); Gideon v. Wainwright, 372 U.S. 335 (1963) (sixth
amendment right to counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (fourth
amendment right against unreasonable searches and seizures).
- . 153 U.S. at 538.
- . Commonwealth v. Davis, 369 Mass. 886, 890, 343 N.E.2d, 847, 859 (1976).
- . In re Brickey, 8 Idaho 597, 70 P. 609 (1902).
- . See Justice v. Elrod, 832 F.2d 1048, 1051 (7th Cir. 1987); Quilici, 695
F.2d at 270; Cases, 131 F.2d at 921-22; Krisko v. Oswald, 655 F. Supp. 147-149
(E.D. Pa. 1987); State v. Amos, 343 So. 2d 166, 168 (La. 1977); Application of
Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); State v. Sanne, 116 N.H. 583,
364 A.2d 630 (1976); Burton v. Sills, 53 N.J. 86, 97, 248 A.2d 521, 528
(1968), appeal dismissed, 394 U.S. 812 (1969); Masters v. State, 685 S.W.2d
654, 655 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 853 (1985).
- . See. e.g., City of Lakewood v. Pillow, 180 Colo. 35, 42, 501 P.2d 744,
751 (1972) (local ordinance barring possession of a deadly weapon
unconstitutionally overbroad; state constitution provides that "[t]he right of
a person to keep and bear arms in defense of his home, person and property . .
. shall be called into question . . . ."); State v. Rupe, 101 Wash.2d 664,
669, 683 P.2d 571, 576 (1984) (defendant's lawful possession of assault
weapons inadmissible as evidence in criminal sentencing proceeding because
possessin of firearms a constitutional right under provision stating that
"[t]he right of an individual citizen to bear arms in defense of himself, or
the state, shall not be impaired . . . ."); City of Princeton v. Buckner 377
S.E.2d 139, 152 (W. Va. 1988) (state statute requiring license to carry
firearms violates constitutional provision stating that "[a] person has the
right to keep and bear arms for the defense of self, family, home and state
and for lawful hunting and recreational use.").