The Second Amendment and the Personal Right
By: William Van Alstyne[*]
Perhaps no provision in the Constitution causes one to stumble quite so much
on a first reading, or second, or third reading, as the short provision in the
Second Amendment of the Bill of Rights. No doubt this stumbling occurs because,
despite the brevity of this amendment, as one reads, there is an apparent non
sequitur — or disconnection of a sort — in midsentence. The amendment
opens with a recitation about a need for "[a] well regulated
Militia." But having
stipulated to the need for "[a] well regulated Militia," the
amendment then declares that the right secured by the amendment — the
described right that is to be free of "infringement" — is not
(or not just) the right of a state, or of the United States, to provide a well
regulated militia. Rather, it is "the right of the people to keep and bear
"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 postulation of a "right of the people to keep and bear Arms"
would make sense standing alone, however, even if it necessarily left some
questions still to be settled. It
would make sense in just the same unforced way we understand even upon a first
reading of the neighboring clause in the Bill of Rights, which uses the exact
same phrase in describing something as "the right of the people" that
"shall not be violated" (or "infringed"). Just as the
Second Amendment declares that "the right of the people to keep and bear
Arms shall not be infringed," so, too, the fourth Amendment declares:
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated ...."
Here, in the familiar setting of the Fourth Amendment, we are not at all
confused in our take on the meaning of the amendment; it secures to each of us
personally (as well as to all of us collectively) a certain right — even
if we are also uncertain of its scope. Nor are we confused in turning to other clauses. For
example, the Sixth Amendment provides:
"In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial ...."
And so, too, the Seventh Amendment provides:
"In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved
That each of these rights — that all of these rights — are
examples of personal rights protected by the Bill of Rights seems perfectly
clear. And, were it not for the opening clause in the Second Amendment, though
there would still be much to thrash out, it is (p.1238) altogether likely the Second Amendment would be
taken in the same way.
To be sure, as we have already once noted, were the Second Amendment taken
in just this way, the scope of the right that is protected (namely, the
right to keep and bear arms) would still remain to be defined. But by itself, that sort of definitional
determination would be of no unusual difficulty. For so much is true with
respect to every right secured from government infringement, whether it be each
person's freedom of speech (that freedom is not unbounded, either) or any other
right specifically protected from infringement elsewhere in the Bill of
Rights. And in addressing this
type of (merely general) problem, neither has the Supreme Court nor have other
courts found it intractable and certainly none of these other clauses have been
disparaged, much less have they been ignored. To the contrary, with respect to
each, (p.1239)a strong, supportive case
law has developed in the courts, albeit case law that has developed gradually,
over quite a long time.
In startling contrast, during this same time, however, the Second Amendment
has generated almost no useful body of law. Indeed, it is substantially
accurate to say that the useful case law of the Second Amendment, even in 1994,
is mostly just missing in action. In its place, what we have is roughly of the
same scanty and utterly underdeveloped nature as was characteristic of the equally scanty and
equally underdeveloped case law (such as it then was) of the First Amendment in
1904, as of which date there was still to issue from the Supreme Court a single
decision establishing the First Amendment as an amendment of any genuine
importance at all. In short,
what was true of the First Amendment as of 1904 remains true of the Second
Amendment even now.
The reason for this failure of useful modern case law, moreover, is not that
there has been no occasion to develop such law. So much is true only of the
Third Amendment. In contrast,
it is (p.1240) no more true of the Second
Amendment than of the First Amendment or the Fourth Amendment that we have
lacked for appropriate occasions to join issue on these questions. The tendency
in the twentieth century (though not earlier) of the federal government has
been ever increasingly to tax, ever more greatly to regulate, and ever more
substantially to prohibit various kinds of personal gun ownership and
use. This tendency, that is, is
at least as commonplace as it was once equally the heavy tendency to tax, to
regulate, and too often also to prohibit, various kinds of speech. The main
reason there is such a vacuum of useful Second Amendment understanding, rather,
is the arrested jurisprudence of the subject as such, a condition due
substantially to the Supreme Court's own inertia — the same inertia that
similarly afflicted the First Amendment virtually until the third decade of
this twentieth century when Holmes and Brandeis finally were moved personally
to take the First Amendment seriously (as previously it scarcely ever was).
With respect to the larger number of state and local regulations (many of
these go far beyond the federal regulations), moreover, the case law of the
Second Amendment is even more arrested; and this for the reason that the
Supreme Court has simply declined to reconsider its otherwise discarded
nineteenth-century decisions — decisions holding that the Fourteenth
Amendment enacted little protection of anything, and none (i.e., no
protection) drawn from the Bill of Rights.(p.1241)
To trust to this arrested treatment of the Second Amendment — and of
the Fourteenth Amendment — in 1994, in short, is as though one were
inclined so to trust to the arrested treatment of the First Amendment in 1904.
The difficulty in such a starting place is perfectly plain. No convincing
jurisprudence is itself really possible under such circumstances. In the case
of the First Amendment, we know quite well that such a jurisprudence
effectively became possible only rather late, in the 1920s (but, one may add,
better late than never). In the case of the Second Amendment, in an elementary
sense, that jurisprudence is even now not possible until something more in the
case law of the Second Amendment begins finally to fall into place. That
"something more," I think, requires one to consider what one might be
more willing to think about in the following way — that perhaps the NRA
is not wrong, after all, in its general Second Amendment stance — a
stance we turn here briefly to review.
The stance of those inclined to take the Second Amendment seriously reverts
to the place we ourselves thought to be somewhat worthwhile to consult —
namely, the express provisions of the Second Amendment — and it offers a
series of suggestions fitting the respective clauses the amendment contains.
Here is how these several propositions run:
1. The reference to a "well regulated Militia" is in the
first as well as the last instance a reference to the ordinary citizenry. It is
not at all a reference to regular armed soldiers as members of
(p.1242)some standing army. And quite obviously, neither is it a
reference merely to the state or to the local police.
2. The very assumption of the clause, moreover, is that ordinary citizens
(rather than merely soldiers, or merely the police) may themselves
possess arms, for it is from these ordinary citizens who as citizens have a
right to keep and bear arms (as the second clause provides) that such well
regulated militia as a state may provide for, is itself to be drawn.
3. Indeed, it is more than merely an "assumption," however,
precisely because "the right of the people to keep and bear Arms" is
itself stipulated in the second clause. It is this right that is
expressly identified as "the right" that is not to be
("shall not be") infringed. That right is made the express
guarantee of the clause. There
is thus no room left for a claim that, despite this language, the amendment
actually means to reserve to Congress some power to contradict its very terms
(e.g., that "the Congress may, if it thinks it proper, forbid the people
to keep and bear arms to such extent Congress sees fit to do").
4. Nor is there any basis so to read the Second Amendment as though it said
anything like the following: "Congress may, if it thinks it proper, forbid
the people to keep and bear arms if, notwithstanding that these restrictions it
may thus enact are inconsistent with the right of the people to keep and bear
arms, they are not inconsistent with the right of each state to maintain some
kind (p.1243)of militia as it may deem
necessary to its security as a free state."
Rather, the Second Amendment adheres to the guarantee of the right of the
people to keep and bear arms as the predicate for the other provision to which
it speaks, i.e., the provision respecting a militia, as distinct from a
standing army separately subject to congressional regulation and control.
Specifically, it looks to an ultimate reliance on the common citizen who has a
right to keep and bear arms rather than only to some standing army, or only to
some other politically separated, defined, and detached armed cadre, as an
essential source of security of a free state. In relating these propositions within one
amendment, moreover, it does not disparage, much less does it subordinate,
"the right of the people to keep and bear arms." To the contrary, it
expressly embraces that right and indeed it erects the very scaffolding
of a free state upon that guarantee. It derives its definition of a
well-regulated militia in just this way for a "free State": The
militia to be well-regulated (p.1244) is
a militia to be drawn from just such people (i.e., people with a right to keep
and bear arms) rather than from some other source (i.e., from people without
rights to keep and bear arms).
There is, to be sure, in the Second Amendment, an express reference to the
security of a "free State." It is not a reference to the security of THE
STATE. There are doubtless
certain national constitutions that put a privileged emphasis on the security
of "the state," but such as they are, they are all unlike our
Constitution and the provisions they have respecting their security do not
appear in a similarly phrased Bill of Rights. Accordingly, such constitutions
make no reference to any right of the people to keep and bear arms, apart from
state service. And why do they
not do so? Because, in contrast with the premises of constitutional government
in this country, they reflect the belief that recognition of any such right
"in the people" might well pose a threat to the security of "the
state." In the view of these different constitutions, it is commonplace to
find that no one within the state other than its own authorized personnel has
any right to keep and bear arms
— a view emphatically rejected, rather than embraced, however, by the
Second Amendment to the Constitution of the United States.
This rather fundamental difference among kinds of government was noted by
James Madison in The Federalist Papers, even prior to the subsequent
assurance expressly furnished by the Second (p.1245)Amendment in new and concrete terms. Thus, in The
Federalist No. 46, Madison contrasted the "advantage ... the Americans
possess" (under the proposed constitution) with the circumstances in
"several kingdoms of Europe ... [where] the governments are afraid to
trust the people with arms." Here, in contrast, as Madison noted, they were, and
no provision was entertained to empower Congress to abridge or to violate that
trust, any more than, as Alexander Hamilton noted, there was any power proposed
to enable government to abridge the freedom of the press.
To be sure, in the course of the ratification debates, doubts were expressed
respecting the adequacy of this kind of assurance (i.e., the assurance that no
power was affirmatively proposed for Congress to provide any colorable claim of
authority to take away or to abridge these rights of freedom of the press and
of the right of the people to keep and bear arms). And the quick resolve to add the Second Amendment,
so to confirm that right more expressly, as not subject to infringement by
Congress, is not difficult to understand.
The original constitutional provisions regarding the militia placed major new powers in Congress
beyond those previously conferred by the Articles of Confederation. These new
powers not only included a wholly new power to provide for a regular, standing,
national army even in peacetime, but also powers for "calling forth the
"organizing, arming, and disciplining, the Militia," and for "governing such Part of
them as may be employed in the Service of the United States." Indeed, all that was expressly
reserved from Congress's reach was "the Appointment of the officers"
of this citizen militia, for even "the Authority of training the
Militia," though reserved in the first instance from Congress, was itself
subordinate to Congress in the (p.1246)
important sense that such training was to be "according to the discipline
prescribed by Congress."
These provisions were at once highly controversial, respecting their scope
and possible implications of congressional power. In attempting to counter
anti-ratification objections to the proposed constitution — objections
that these lodgments of powers would concentrate excessive power in Congress in
derogation of the rights of the people — Hamilton and Madison argued
essentially three points: (a)
the appointment of militia officers was exclusively committed to state
hands; (b) the localized
civilian-citizen nature of the militia would secure its loyalty to the rights
of the people; and (c) the
people otherwise possessed a right to keep and bear arms — which right
Congress was given no power whatever to regulate or to forbid. And, as to the argument that the plan
was defective insofar as it left the protection of the rights of the people
insecure because no express prohibition on Congress was
separately provided in respect to those rights (rather, the
powerlessness of Congress to infringe them was solely a deduction from the
doctrine of enumerated powers alone), Hamilton insisted that to specify
anything further — to provide an express listing of particular
prohibitions on Congress — was not only unnecessary but itself would be
deeply problematic, because the implication of such a list would be that
anything not named in the list might somehow be thought therefore in fact to be
subject to regulation or prohibition by Congress though no enumerated power to
affect any such subject was provided by the Constitution itself. In brief, Hamilton maintained that to
do anything in the nature of adding a Bill of Rights would cast doubt upon the
doctrine of enumerated powers itself.
These several explanations were deemed insufficient, however, and to meet
the objections of those in the state ratifying conventions unwilling to leave
the protection of certain rights to mere inference from the doctrine of
enumerated powers, objections raised in the course of several state
ratification debates, the Bill of (p.1247)Rights was promptly produced by Madison, in the
first Congress to assemble under the new Constitution, in 1789. Accordingly, as
with "the freedom of the press," the protection of "the right of
the people to keep and bear arms" was thus made doubly secure in
the Bill of Rights. Thomas
Cooley quite accurately recapitulated the controlling circumstances in the
leading nineteenth century treatise on constitutional law:
"The [Second] [A]mendment, like most other provisions in the
Constitution, has a history. It was adopted with some modification and
enlargement from the English Bill of Rights of 1688, where it stood as a
protest against arbitrary action of the overturned dynasty in disarming the
people, and as a pledge of the new rulers that this tyrannical action should
"The Right is General.... The meaning of the provision
undoubtedly is, that the people, from whom the militia must be taken, shall
have the right to keep and bear arms; and they need no permission or regulation
of law for the purpose."
Cooley's reference to English history, moreover, in illuminating the Second
Amendment right (as personal to the citizen as such), is useful as well. For in
this, he merely followed William Blackstone, from Blackstone's general treatise
In chapter 1, appropriately captioned "Of The Rights of Persons,"
Blackstone divided what he called natural personal rights into two kinds:
"primary" and "auxiliary." The distinction was between those natural rights
primary to each person intrinsically and those inseparable from their
protection (thus themselves indispensable, "auxiliary" personal
rights). Of the first kind, generically, are "the free enjoyment of
personal security, of personal liberty, (p.1248) and of private property." Of the latter are rights possessed "to
vindicate" one's primary rights; and among these latter, Blackstone listed
such things as access to "courts of law," and, so, too, "the
right of petition," and "the right of having and using arms for
self-preservation and defence."
In contrast with all of this, the quite different view — the view of
"the secure state" we were earlier considering — of countries
different from the United States — assumes no right of the people
to keep and bear arms. Rather, these differently constituted states put their
own first stress on having a well regulated army (and also, of course, an
internal state police). To be sure, such states also may provide for some kind
of militia, but insofar as they may (and several do), one can be quite certain that it will not be
a (p.1249)militia drawn from the people
with a "right to keep and bear Arms." For in these kinds of states,
there is assuredly no such right. To the contrary, such a state is altogether
likely to forbid the people to keep and bear arms unless and until they are
conscripted into the militia, after which — to whatever extent they are
deemed suitably "trustworthy" by the state — they might then
(and only then) have arms fit for some assigned task.
But, again, the point to be made here is that the Second Amendment
represented not an adoption, but a rejection, of this vision — a vision of
the security state. It did not concede to any such state. Rather, it speaks to
sources of security within a free state, within which (to quote the amendment
itself still again) "the right of the people to keep and bear Arms
shall not be infringed." The precautionary text of the amendment
refutes the notion that the "well regulated Militia" the amendment
contemplates is somehow a militia drawn from a people "who have no right
to keep and bear arms." Rather, the opposite is what the amendment
The Second Amendment of course does not assume that the right of the people
to keep and bear arms will not be abused. Nor is the amendment insensible to
the many forms which such abuses may take (e.g., as in robbing banks, in
settling personal disputes, or in threatening varieties of force to secure
one's will). But the Second Amendment's answer to the avoidance of abuse is to
support such laws as are directed to those who threaten or demonstrate such
abuse and to no one else. Accordingly, those who do neither — who neither
commit crimes nor threaten such crimes — are entitled to be left alone.
To put the matter most simply, the governing principle here, in the Second
Amendment, is not different from the same principle governing the First
Amendment's provisions on freedom of speech and the freedom of the press. A
person may be held to account for an abuse of that freedom (for example, by
being held liable for using it to publish false claims with respect to the
nutritional value of the food offered for public sale and consumption). Yet, no
one today contends that just because the publication of such false statements
is a danger one might in some measure reduce if, say, licenses also
could be required as a condition of owning a newspaper or even a mimeograph
machine, that therefore licensing can be made a requirement of owning either a
newspaper or a mimeograph machine.
The Second Amendment, like the First Amendment, is thus not mysterious. Nor
is it equivocal. Least of all is it opaque. Rather, one may say, today it is
simply unwelcome in any community that wants no one (save perhaps the police?)
to keep or bear arms at all. But assuming it to be so, i.e., assuming this is
how some now want matters to be, it is for them to seek a repeal of this
amendment (and so the repeal of its guarantee), in order to have their way. Or
so the Constitution itself assuredly appears to require, if that is the way
things are to be.(p.1251)
In the first instance, enacted as it was as part of the original Bill of
Rights of 1791, the Second Amendment merely was addressed to Congress and not
to the states. The mistrust and uncertainty of how Congress might
presume to construe its new powers — powers newly enumerated in Article I
of the Constitution — resulted in the Bill of Rights inclusive of the
Second Amendment, proposed in the very first session of the new Congress in
1789. As it was then apprehended that although Congress was never given any
power to preempt state constitutional provisions respecting freedom of speech
or of the press, Congress might nonetheless presume to regulate those subjects
to its own liking under pretext of some other authority if not barred from
doing so by amendment, the Second Amendment — and the other amendments
composing the original Bill of Rights — reflected the same mistrust and
were adopted for the same reason as well. But, to be sure, neither the First
nor the Second Amendment, nor
any of the other amendments in the Bill of Rights were addressed as limits on
In 1866, however, this original constitutional toleration of state
differences with respect to their internal treatment of these rights came to an
end, in the aftermath of the Civil War. The immunities of citizens with respect
to rights previously secured only from abridging acts of Congress were recast
in the Fourteenth Amendment as immunities secured also from any similar act by
any state. It was precisely in
this manner that the citizen's right to (p.1252)keep and bear arms, formerly protected only from
acts of Congress, came to be equally protected from abridging acts of the
states as well.
So, in reporting the Fourteenth Amendment to the Senate on behalf of the
Joint Committee on Reconstruction in 1866, Senator Jacob Meritt Howard of
Michigan began by detailing the "first section" of that amendment,
i.e., the section that "relates to the privileges and immunities of
citizens." He explained
that the first clause of the amendment (the "first section"), once
approved and ratified, would "restrain the power of the
States" even as Congress
was already restrained (by the Bill of Rights) from abridging
"the personal rights guarantied and secured by the first
eight amendments of the Constitution; such as the freedom of speech and of the
press; the right of the people peaceably to assemble and petition the
Government for a redress of grievances, a right appertaining to each and all
the people; the right to keep and to bear arms; the right to be exempted
from the quartering of soldiers in a house without the consent of the owner;
the right to be exempt from unreasonable searches and seizures[; etc., through
the Eighth Amendment]."
In the end, Senator Howard concluded his remarks as follows: "The
great object of the first section of this amendment is, therefore, to restrain
the power of the States and compel them at all times to respect these great
fundamental guarantees." There was no dissent from this description of the
Following ratification of the Fourteenth Amendment, therefore, some state
constitutions might presume to provide even more protection of these
same rights than the Fourteenth Amendment (and some continue even now to do
so), but none could thereafter
(p.1253)presume to provide any less
— whether the object of regulation was freedom of speech and of the press
or of the personal right to arms. And it is quite clear that in the
ratification debates of the Fourteenth Amendment, no distinction whatever was
drawn between the "privileges and immunities" Congress was understood
already to be bound to respect (pursuant to the Bill of Rights) and those now
uniformly also to bind the states. Each was given the same constitutional
immunity from abridging acts of state government as each was already recognized
to possess from abridgment by Congress. What was previously forbidden only to
Congress to do was, by the passage of the Fourteenth Amendment, made equally
forbidden to any state. Moreover, the point was acknowledged to be particularly
important in settling the Second Amendment right as a citizen's personal right,
i.e., personal to each citizen as such.
Again, however, one does not derive from these observations that each
citizen has an uncircumscribable personal constitutional right to acquire, to
own, and to employ any and all such arms as one might desire so to do, or
necessarily to carry them into any place one might wish. To the contrary,
restrictions generally consistent (p.1254) merely with safe usage, for example, or
restrictions even of a particular "Arms" kind, are not all per se
precluded by the two constitutional amendments and provisions we have briefly
reviewed. There is a "rule of reason" applicable to the First
Amendment, for example, and its equivalent will also be pertinent here. It is
not the case that one may say whatever one wants and however one wants,
wherever one wants, and whenever one likes — location, time, and
associated circumstances do make a difference, consistent even with a very
strong view of the freedom of speech and press accurately reflected in
conscientious decisions of the Supreme Court. The freedoms of speech and of the
press, it has been correctly said, are not absolute.
Neither is one's right to keep and bear arms absolute. It may fairly be
questionable, for example, whether the type of arms one may have a "right
to keep" consistent with the Second Amendment extend to a howitzer. It may likewise be questionable
whether the "arms" one does have a "right to keep"
are necessarily arms one also may presume to "bear" wherever one
wants, e.g., in courtrooms or in public schools. To be sure, each kind of
example one might give will raise its own kind of question. And serious people
are quite willing to confront serious problems in regulating "the right to
keep and bear arms," as they are equally willing to confront serious
problems in regulating "the freedom of speech and of the
The difference between these serious people and others, however, was a large
difference in the very beginning of this country and it remains as a large
difference in the end. The difference is that such serious people begin with a
constitutional understanding that declines to trivialize the Second Amendment
or the Fourteenth Amendment, just as they likewise decline to trivialize any
other right expressly identified elsewhere in the Bill of Rights. It is
difficult to see why they are less than entirely right in this unremarkable
view. That it has taken the NRA to speak for them, with respect to the Second
Amendment, moreover, is merely interesting(p.1255) — perhaps far more as a comment on others,
however, than on the NRA.
For the point to be made with respect to Congress and the Second
Amendment is that the essential
claim (certainly not every claim — but the essential claim) advanced by
the NRA with respect to the Second Amendment is extremely strong. Indeed, one
may fairly declare, it is at least as well anchored in the Constitution in its
own way as were the essential claims with respect to the First Amendment's
protection of freedom of speech as first advanced on the Supreme Court by
Holmes and Brandeis, seventy years ago. And until the Supreme Court manages to express the
central premise of the Second Amendment more fully and far more appropriately
than it has done thus far, the constructive role of the NRA today, like the
role of the ACLU in the 1920s with respect to the First Amendment (as it then
was), ought itself not lightly to be dismissed. Indeed, it is largely by the
"unreasonable" persistence of just such organizations in this country
that the Bill of Rights has endured.
[*] William R. and Thomas L. Perkins
Professor of Law, Duke University School of Law.
 The subject is that of
"A well regulated Militia" — a militia the amendment
declares to be "necessary to the security of a free State."
U.S. Const. amend. II. But it is
hard to say on first reading whether the reference is to a well-regulated
national militia or, Instead, to a well-regulated state militia
(i.e., a militia in each state). Perhaps, however, the reference is to
both at once — a militia in each state, originally constituted under each
state's authority, but subject to congressional authority to arm, to organize,
and to make provision to call into national service, as a national militia. The
possibility that this may be so tends to send one looking for other provisions
in the Constitution that may help to clear this matter away. And a short search
readily turns up several such provisions: Article I, section 8, clauses
15 and 16, and Article II, section 2, clause 1. See
infra note 16.
 U.S. Const. amend. II.
 For example, one might well
still be uncertain of the breadth of the right to keep and bear arms (e.g.,
just what kinds of "Arms"?).
 U.S. Const. amend. IV.
 For example, does the
protection of "houses" and "effects" from unreasonable
searches and seizures extend to trash one may have put outside in a garbage
can? May it matter whether one has put the can itself outside one's garage or
farther out, beside the street? See California v. Greenwood, 486
U.S. 35, 37 (1988).
 U.S. Const. amend. VI.
 Id. amend.
 For example, with respect to
the kind of "Arms" one may have. Perhaps these include all arms as
may be useful (though not exclusively so) as an incident of service in a
militia — and indeed, this would make sense of the introductory portion of
the amendment as well. See United States v. Miller, 307 U.S. 174,
 So, for example, though the
Sixth Amendment provides a right to a "speedy" and
"public" trial whenever one is accused of a (federal) crime,
the amendment does not declare just how "speedy" the trial
must be (i.e., exactly how soon following indictment the trial must be held)
nor how "public" either (e.g., must it be televised to the
world, or is an open courtroom, albeit with very limited seating, quite
enough?). And the Fourth Amendment does not say there can be no searches
and seizures — rather, only no "unreasonable" searches and
seizures. Yet there is a very substantial body of highly developed case law
that has given this genuine meaning and effect.
Likewise, when the Sixth and Seventh Amendments speak of the right
to trial by "jury," then (even as is true of the Second Amendment in
its reference to "Arms"?), though each of these amendments is silent
as to what a jury means (a "jury" of how many people? a
"jury" selected in what manner and by whom?), the provision means to
be — and tends to be — given some real, some substantial, and some
constitutionally significant effect. The point is, of course, that though there
are questions of this sort with respect to every right furnished by the
Bill of Rights, the expectation remains high that the right thus furnished will
neither be ignored — treated as though it were not a right at all —
nor so cynically misdefined or "qualified" in its ultimate
description as to be reduced to an empty shell. It is only in the case of the
Second Amendment that this is approximately the current state of the law.
Indeed, it is only with respect to the Second Amendment that the current state
of the law is roughly the same as was the state of the law with respect to the
First Amendment's guarantees of freedom of speech and of the press as recently
as 1904. As a restraint on the federal government, the First Amendment was
deemed to be a restriction merely on certain kinds of prior restraint and
hardly at all on what could be forbidden under threat of criminal sanction.
See, e.g., Patterson v. Colorado, 205 U.S. 454, 462
(1907). As to the states, the amendment was not known as necessarily
furnishing any restraint at all. See id.
 The most one can divine
from the Supreme Court's scanty decisions ("scanty" is used advisedly
— essentially there are only two) is that such right to keep and bear arms
as may be secured by this amendment may extend to such "Arms" as
would be serviceable within a militia but not otherwise (so a
"sawed-off" shotgun may not qualify, though presumably — by
this test — heavy duty automatic rifles assuredly would).
See United States v. Miller, 307 U.S. 174, 178 (1939);
see also Lewis v. United States, 445 U.S. 55, 65 n.8 (1980)
(noting that legislative restrictions on the right of felons to possess
firearms do not violate any constitutionally protected liberty);
Robertson v. Baldwin, 165 U.S. 275, 282 (1897) (referring to
"the right of the people to keep and bear Arms" as a personal right).
These casual cases aside ("casual," because in Miller, for
example, there was not even an appearance entered by the defendant-appellant in
the Supreme Court), there are a few 19th-century decisions denying any
relevance of the Second Amendment to the states; but these decisions, which
have never been revisited by the Supreme Court, merely mimicked others of the
same era in holding that none of the rights or freedoms enumerated in
the Bill of Rights were made applicable by the Fourteenth Amendment to the
states. See, e.g., Presser v. Illinois, 116 U.S. 252, 265
(1886) (citing United States v. Cruikshank, 92 U.S. 542, 553 (1875)).
The shaky foundation of these cases ("shaky" because the effect was
to eviscerate the Fourteenth Amendment itself) has long since been recognized
— and long since repudiated by the Court in general. Notwithstanding, the
lower courts continue ritually to rely upon them, and the Supreme Court quite
as regularly declines to find any suitable for review. See, e.g.,
Quilici v. Village of Morton Grove, 695 F.2d 261, 269-70 (7th Cir.
1982) (holding that municipal handgun restrictions were constitutional),
cert. denied, 464 U.S. 863 (1983). And why does one suppose
that this is so?
supra note 9.
 Troops have not generally
been quartered in private homes "in time of peace ... without the consent
of the Owner," nor even "in time of war," U.S. Const. amend. III, for a very long time,
and no Third Amendment case has ever been decided by the Supreme Court.
Evidently, a Third Amendment case has arisen only once in a lower federal
court. See Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982)
(holding that the Third Amendment protects the legitimate privacy interests of
striking correction officers in keeping their housing from being used for
quartering National Guard troops).
 For a comprehensive review
of congressional action since 1934, see United States v. Lopez, 2 F.3d
1342, 1348-60 (5th Cir. 1993).
 See, e.g.,
Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis and
Holmes, JJ., concurring); Gitlow v. New York, 268 U.S. 652, 672
(1925) (Holmes and Brandeis, JJ., dissenting); United States ex
rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407,
417 (1921) (Holmes and Brandeis, JJ., dissenting); Abrams v.
United States, 250 U.S. 616, 624 (1919) (Holmes and Brandeis, JJ.,
dissenting). See generally Samuel J.
Konefsky, The Legacy of Holmes and Brandeis 181-256 (1956)
(reviewing the Holmes-Brandeis legacy of the First Amendment).
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873); Gerald Gunther, Constitutional Law 408-10 (12th ed
1991). The Slaughter-House Cases denied that the Privileges and
Immunities Clause of the Fourteenth Amendment extended any protection from the
Bill of Rights against the states. Within three decades, however, the Court
began the piecemeal abandonment of that position (albeit by relying on the Due
Process Clause instead). See Chicago, B. & Q. R.R. v. Chicago,
166 U.S. 226 (1897) (applying the Fifth Amendment prohibition against
the taking of private property for public use without just compensation and
holding it to be equally a restraint against the states). In 1925, the Court
proceeded in like fashion with respect to the Free Speech Clause of the First
Amendment, see Gitlow, 268 U.S. at 666, and
subsequently with respect to most of the rights enumerated in the Bill of
Rights (exclusive, however, of the right to keep and bear arms). As already
noted, the Court has declined to reexamine its 19th century cases
(Presser and Cruikshank) that merely relied on the
Slaughter-House Cases for their rationale. Cf. discussion
infra Part IV.
 Article I vests power in
Congress "[t]o raise and support Armies," i.e., to provide for a
national standing army as such, see U.S.
Const. art. I, § 8, cl. 12. It is pursuant to two different
clauses that Congress is given certain powers with respect to the militia, such
as the power "for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions," id.
cl. 15 (emphasis added), and the power "[t]o provide for
organizing, arming, and disciplining, the Militia, and for governing
such Part of them as may be employed in the Service of the United States,
reserving to the States respectively, the Appointment of the Officers, and the
Authority of training the Militia according to the discipline prescribed
by Congress," id. cl. 16 (emphasis added). So, too,
the description of the executive power carries over the distinction between the
regular armed forces of the United States in a similar fashion. Accordingly,
Article II, section 2 provides that "[t]he President shall be Commander in
Chief of the Army and Navy of the United States, and of the Militia of
the several States, when called into the actual Service of the United
States." Id. art. II, § 2, cl. 1 (emphasis
 And it is from the people,
whose right this is, that such militia as the state may (as a free state)
compose and regulate, shall be drawn — just as the amendment expressly
 Compare the utter
incongruity of this suggestion with the actual provisions the Second Amendment
 Compare this incompatible
language and thought with the actual provisions of the amendment. Were the
Second Amendment a mere federalism ("States' rights") provision, as
it is not, it would assuredly appear in a place appropriate to that purpose
(i.e., not in the same list with the First through the Eighth Amendments, but
nearby the Tenth Amendment), and it would doubtless reflect the same federalism
style as the Tenth Amendment; for example, it might read: "Congress
shall make no law impairing the right of each state to maintain such well
regulated militia as it may deem necessary to its security as a free
state." But it neither reads in any such fashion nor is it situated
even to imply such a thought. Instead, it is cast in terms that track the
provisions in the neighboring personal rights clauses of the Bill of Rights.
Just as the Fourth Amendment provides that "[t]he right of the people
to be secure in their persons, houses, papers, and effects ... shall not be
violated," U.S. Const. amend.
IV (emphasis added), so, too, the Second Amendment matches that language
and likewise provides that "the right of the people to keep and bear
Arms, shall not be infringed," id. amend. II
(emphasis added); see also United States v. Verdugo-Urquidez, 494
U.S. 259, 265 (1990) ("The Second Amendment protects 'the right of
the people to keep and bear Arms' ...."). In further response to the
suggestion that the Second Amendment is a mere States' rights clause in analogy
with the Tenth Amendment (by, e.g., Keith A. Ehrman & Dennis A.
Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your
Militia Lately?, 15 U. Dayton L. Rev. 5, 57
(1989)), see Stephen P. Halbrook, That
Every Man Be Armed: The Evolution of a Constitutional Right
(1984). As Halbrook notes,
"In recent years it has been suggested that the Second
Amendment protects the "collective" right of states to maintain
militias, while it does not protect the right of "the people" to keep
and bear arms. If anyone entertained this notion in the period during which the
Constitution and Bill of Rights were debated and ratified, it remains one of
the most closely guarded secrets of the eighteenth century, for no known
writing surviving from the period between 1787 and 1791 state such a
Id. at 83 (emphasis
supra note 16 and accompanying
 U.S. Const. amend. II (emphasis added). In James
Madison's original draft of the amendment, moreover, the reference is to
"a free country" (and not merely to "a free State").
See Bernard Schwartz, The Bill of Rights: A
Documentary History 1026 (1971).
 Once again, see the
amendment, and compare the difference in thought conveyed in these different
wordings as they might appear, in contrast, in actual print.
 See, e.g.,
Xianfa (1982) [Constitution] art. 55, cl. 2
(P.R.C.), translated in The Constitution of the
People's Republic of China 41 (1983); infra note
 A position evidently
preferred by many today in this country as well, with the apparent approval
even of the ACLU. See American Civil
Liberties Union, Policy Guide of The American Civil Liberties Union 95
(1986) ("Except for lawful police and military purposes, the
possession of weapons by individuals is not constitutionally protected.").
It is quite beyond the scope of this brief Essay to attempt to account for the
ACLU's stance — which may even now be undergoing some disagreement and
 The Federalist No. 46, at 299 (James Madison) (Clinton
Rossiter ed., 1961).
 Id. No. 84 at
513-14 (Alexander Hamilton).
 See, e.g.,
Leonard W. Levy, Bill of Rights (United States), in 1
Encyclopedia of the American Constitution 113,
114-15 (Leonard W. Levy et al. eds., 1986).
supra note 16.
 U.S. Const. art. I, § 8, cls. 12-13.
 Id. cl.
 Id. cl.
16 (emphasis added).
 Id. (emphasis
 See The Federalist Nos. 28, 29, 84 (Alexander
Hamilton); id. No. 46 (James Madison) (Clinton Rossiter ed.,
 Id. No. 29 at
182, 186 (Alexander Hamilton) (emphasizing this point).
 See id.
 See id.
No. 46 at 299-300 (James Madison).
 Id. No. 84 at
512-14 (Alexander Hamilton).
 See Joyce L. Malcolm, To Keep and Bear Arms 164
(1994). William Rawle, George Washington's candidate for the nation's
first attorney general, made the same point. See William Rawle, A View of the Constitution of the United States
of America 125-26 (2d ed. 1829).
 Thomas M. Cooley, The General Principles of Constitutional Law
in the United States of America 270-71 (1880). To be sure, Cooley
went on to note that the Second Amendment had, as a "further" purpose
(not the chief purpose — which, as he says, was to confirm the citizen's
personal right to keep and bear arms — but as a "further
purpose"), the purpose to preclude any excuse of alleged need for a large
standing army. Id.; see also Pa.
Const. of 1776, art. VIII ("That the people have a right to
bear arms for the defense of themselves, and the state; and as standing armies
in the time of peace, are dangerous to liberty, they ought not to be kept up:
and that the military should be kept under strict subordination to, and
governed by the civil power.").
William Blackstone, Commentaries *129,
 Id. at
 Id. (emphasis
added). Against this background, incidentally, the Supreme Court's decision in
DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189
(1989), may be important to take into account in understanding the
underpinnings of the personal right to keep and bear arms in the Blackstone
minimal sense of the right to keep arms for self-preservation itself. To the
extent that there is no enforceable constitutional obligation imposed on
government in fact to protect every person from force or violence — and
also no liability for a per se failure to come to any threatened person's aid
or assistance (as DeShaney declares altogether emphatically) — the
idea that the same government could nonetheless threaten one with criminal
penalties merely "for having and using arms for self-preservation and
defense" becomes impossibly difficult to sustain consistent with any
plausible residual view of auxiliary natural rights. See also
Nicholas Johnson, Beyond the Second Amendment: An Individual Right to
Arms Viewed Through The Ninth Amendment, 24 Rutgers
L.J. 1, 64-67 (1992) (collecting prior articles and references to
the strong natural rights history of the personal right to possess essential
means of self defense).
An impressive number of authors, whose work Nicholas Johnson
reports (and to which he adds in this article), have sought to locate the right
to keep and bear arms in the Ninth Amendment. They note that the Ninth
Amendment provides precautionarily that "[t]he enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people." U.S.
Const. amend. IX. And they go forward to show that the right to
bear arms was a right of just this sort, i.e., that "the right to keep and
bear Arms" was itself so utterly taken for granted, and so thoroughly
accepted, that it fits the Ninth Amendment's description very aptly. See
Johnson, supra, at 34-37. Unsurprisingly, however, the
sources relied upon to show that this was so, strong as they are (and they are
quite strong), are essentially just the very same sources that inform the
Second Amendment with respect to the predicate clause on the right of the
people to keep and bear arms. That is, they are the same materials that also
show that there was a widespread understanding of a common right to keep and
bear arms, which is itself the express right the Second Amendment expressly
protects. Recourse to the same materials to fashion a Ninth Amendment
("unenumerated") right is not only largely replicative of the Second
Amendment inquiry, but also singularly inappropriate under the circumstances
— the right to bear arms is not left to the vagaries of Ninth Amendment
disputes at all.
 E.g., Xianfa [Constitution] art. 55, cl. 2 (P.R.C.),
translated in The Constitution of the People's
Republic of China 41 (1983) ("it is the honourable duty of
citizens of the People's Republic of China to perform military service and join
the militia in accordance with the law.").
 See Malcolm, supra note 39, at
135-64 (tracing the English antecedents and reviewing the full original
history of the Second Amendment). Professor Malcolm concludes, exactly as
Thomas Cooley did a century earlier, see supra note
"[t]he Second Amendment was meant to accomplish two distinct
goals, each perceived as crucial to the maintenance of liberty. First, it was
meant to guarantee the individual's right to have arms for self-defence and
self-preservation. Such an individual right was a legacy of the English Bill of
Rights [broadened in scope in America from the English antecedent]...."
The clause concerning the militia was not intended to limit
ownership of arms to militia members, or return control of the militia to the
states, but rather to express the preference for a militia over a standing
Malcom, supra, at
162-63. For other strongly confirming reviews, see, e.g., Subcommittee on the Constitution of the Comm. on the
Judiciary, The Right to Keep and Bear Arms, 97th Cong., 2d Sess.
(1982); Halbrook, supra note
19, at 67-80; David I. Caplan, Restoring
the Balance: The Second Amendment Revisited, 5 Fordham Urb. L.J. 31, 33-43 (1976);
Stephen P. Halbrook, The Right of the People or the Power of the
State: Bearing Arms, Arming Militias, and the Second Amendment, 26
Val. U. L. Rev. 131 (1991); David T.
Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second
Amendment, 9 Harv. J.L. & Pub. Pol'y 559,
604-15 (1986); David T. Hardy, The Second Amendment and the
Historiography of the Bill of Rights, 4 J.L. &
Pol. 1, 43-62 (1987); Don B. Kates, Jr., Handgun
Prohibition and the Original Meaning of the Second Amendment, 82
Mich. L. Rev. 204, 206, 211-45 (1983);
Sanford Levinson, The Embarrassing Second Amendment, 99
Yale L.J. 637, 645-51 (1989); Robert
E. Shalhope, The Armed Citizen in the Early Republic, 49
Law & Contemp. Probs., Winter 1986, at 125,
133-41. But see Ehrman & Henigan, supra note
19; Dennis A. Henigan, Arms, Anarchy and
the Second Amendment, 26 Val. U.L. Rev. 107,
111 n.17 (1991) (listing additional articles by others).
 Compare the claim of a
power in government to require "licensing" the right to keep arms.
 The Second Amendment was
originally the fourth amendment of twelve approved by the requisite two-thirds
of both houses of Congress in 1789 and at once submitted for ratification by
the state legislatures. Because only six states approved either the first or
second of these twelve amendments during the ensuing two years (1789-1791),
however, neither of these was adopted (since, unlike the others, they failed to
be confirmed by three-fourths of the states). So, what was originally proposed
as the third amendment became the First Amendment and what was originally
proposed as the fourth amendment became the Second Amendment in turn. (On May
22, 1992, however, the original proposed second amendment of 1789 was declared
by Congress to have acquired sufficient state resolutions of ratification as of
May 7, 1992, as also itself to have become effective as well. The result is
that what was originally submitted as the second amendment has become the
Twenty-Seventh Amendment instead.) See William Van Alstyne,
What Do You Think About the Twenty-Seventh Amendment?, 10
Const. Commentary 9 (1993).
 See Barren v.
Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833) ("These
amendments demanded security against the apprehended encroachments of the
general government — not against those of the local governments.").
 See U. S. Const. amend. XIV.
 Cong. Globe, 39th Cong., 1st Sess. 2765 (1866)
(statement of Sen. Jacob Meritt Howard). Senator Howard is speaking here —
and in his ensuing remarks — in explanation of the "first
section" of the Fourteenth Amendment that provides: "No State shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States ...."
 Id. at
 Id. at
2765 (emphasis added).
 Id. at
2766 (emphasis added). For the most recent review of this matter, with
useful references to the previous scholarship on the same subject, and reaching
the same conclusion still again, see Richard L Aynes, On Misreading
John Bingham and the Fourteenth Amendment, 103 Yale
L.J. 57 (1993).
 See Robert
Dowlut, Federal and State Constitutional Guarantees to Arms, 15
U. Dayton L. Rev. 59, 79 (1989)
("State courts have on at least 20 reported occasions found arms laws to
be unconstitutional."); Robert Dowlut & Janet A. Knoop, State
Constitutions and the Right to Keep and Bear Arms, 7 Okla. City U. L. Rev. 177 (1982) (reviewing
state constitutional clauses and the right to keep and bear arms).
 The inclusion of this
entitlement for personal protection is, in the Fourteenth Amendment, even more
clear than as provided (as a premise) in the Second Amendment itself. It was,
after all, the defenselessness of Negroes (denied legal rights to keep and bear
arms by state law) from attack by night riders — even to protect their own
lives, their own families, and their own homes — that made it imperative
that they, as citizens, could no longer be kept defenseless by a regime of
state law denying them the common right to keep and bear arms. Note the
description of the right as a personal right in the report by Senator Howard.
See supra text accompanying note
52. For confirming references, see also the
examples provided in Michael K. Curtis, No State
Shall Abridge 24, 43, 56, 72, 138-41, 164, 203 (1986);
Halbrook, supra note
19, at 107-23; Sayoko Blodgett-Ford, Do
Battered Women Have a Right to Bear Arms?, 11 Yale
L. & Pol'y Rev.509, 513-24 (1993); Robert J. Cottrol
& Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist
Reconsideration, 80 Geo. L.J. 309
(1991); Kates, supra note 45, at
254-57. For an overall responsible general review, see also
Levinson, supra note 45. For the most
recent critical review, however, see Raoul Berger, Constitutional
Interpretation and Activist Fantasies, 82 Ky.
L.J. 1 (1993-1994) (with additional references to previous books
 In contrast, the suggestion
that it does not extend to handguns (in contrast to howitzers) is quite beyond
the pale (i.e., it is wholly inconsistent with any sensible understanding of a
meaningful right to keep arms as a personal right).
 Such questions, moreover,
are hardly on that account (merely as questions) necessarily hard or difficult
to answer in reasonable ways, even fully conceding a strong view of the right
to keep and bear arms (e.g., rules of tort or of statutory liability for
careless storage endangering minors or others foreseeably put at unreasonable
 And equally with respect to
the states, pursuant to the Fourteenth Amendment.
supra notes 9-14 and accompanying
 Unless, of course, one
holds the view that it is really desirable after all that the Constitution
should indeed be construed — the Second and Fourteenth Amendments to the
contrary notwithstanding — to say that the right to keep and bear arms is
the right to keep and bear arms as it is sometimes understood (i.e., as though
it had the added words, "but only according to the sufferance of the
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© Duke Law Journal (43 Duke L.J. 1236, 1239, N.10 (1994))