Legal Theory of the Right to Keep and Bear Arms
Copyright © 1994 Constitution Society. Permission is granted
to copy with attribution for noncommercial purposes.
There is considerable confusion about the legal theory underlying the "right
to keep and bear arms". This is a brief outline for a clarification of the
discussion of this issue.
(1) The Second Amendment to the U.S. Constitution does not establish the
right to keep and bear arms. None of the provisions of the Constitution establish
any "natural" rights. They recognize such rights, but the
repeal of such provisions would not end such rights. Such rights were considered
by many of the Framers as obvious or "self-evident", but they were
immersed in the prevailing republican thought of the day, as expressed in the
writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, and others, which
discussed "natural rights" in some detail. Others argued that at least
some of the rights needed to be made explicit in the Bill of Rights to avoid
having future generations with less understanding of republican theory weaken in
their defense of those rights. That has turned out to have been a good idea.
(2) The right to keep and bear arms is a natural right of individuals under
the theory of democratic government. This was clearly the understanding and
intent of the Framers of the U.S. Constitution and was a long-established
principle of English common law at the time the Constitution was adopted, which
is considered to be a part of constitutional law for purposes of interpreting
the written Constitution.
(3) What the Second Amendment also does is recognize the right, power, and
duty of able-bodied persons (originally males, but now females also) to organize
into militias and defend the state. It effectively recognizes that all citizens
have military and police powers, and the "able-bodied" ones -- the
militia -- also have military and police duties, whether exercised in an
organized manner or individually in a crisis. "Able-bodied" is a term
of art established by English common law at the time the Constitution was
adopted, and is the only qualification besides citizenship on what constitutes
the "militia". While not well defined in modern terms, it is somewhat
broader than just able-"bodied": implicit is also "able-minded"
and "virtuous". In other words, persons might be excluded who were
physically able to bear arms but who were mentally or morally defective. Defense
of the "state" includes self-defense and defense of one's
family and friends who are, after all, part of the state, but by establishing
the defense of the state as primary a basis is laid for requiring a citizen to
risk or sacrifice his life in defense of the state and is thus a qualification
on the implicit right of self-defense, which is considered to prevail in
situations in which self-sacrifice is not called for.
(4) The U.S. Constitution does not adequately define "arms". When
it was adopted, "arms" included muzzle-loaded muskets and pistols,
swords, knives, bows with arrows, and spears. However, a common- law definition
would be "light infantry weapons which can be carried and used, together
with ammunition, by a single militiaman, functionally equivalent to those
commonly used by infantrymen in land warfare." That certainly includes
modern rifles and handguns, full-auto machine guns and shotguns, grenade and
grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank
weapons, but not heavy artillery, rockets, or bombs, or lethal chemical,
biological or nuclear weapons. Somewhere in between we need to draw the line.
The standard has to be that "arms" includes weapons which would enable
citizens to effectively resist government tyranny, but the precise line will be
drawn politically rather than constitutionally. The rule should be that "arms"
includes all light infantry weapons that do not cause mass destruction. If we
follow the rule that personal rights should be interpreted broadly and
governmental powers narrowly, which was the intention of the Framers, instead of
the reverse, then "arms" must be interpreted broadly.
(5) The right to keep and bear arms does indeed extend to the states. As do
the other rights recognized by other Amendments, and as reinforced by the
Fourteenth Amendment. It is not just a restriction on the powers of the central
government. On the other hand, the citizens of a state can adopt a constitution
that might restrict the exercise of such rights by delegating the power to do so
to the state government. However, if the restriction of natural rights is unduly
burdensome on those rights, then such a provision would be incompatible with the
U.S. Constitution, its guarantee of the rights, and its guarantee that all
states have a "republican" form of government - which such
restrictions would compromise.
(6) The legal basis for a government not infringing on the right to keep and
bear arms is not constitutional provisions like the Second Amendment, but that
the power to do so is not one of the enumerated powers delegated to the
government, whether Union or State. That delegation must be explicit as pertains
to arms. They can't be regulated on the basis of general powers to tax or to
regulate commerce. Arms have a special status under constitutional law. Some
State constitutions may delegate such powers to the State government. The U.S.
Constitution does not delegate such powers to the Union government. No powers
are delegated to government by the preamble to a constitution, which is only a
statement of purpose, only by provisions in the body of the document and its
(7) The legal basis on which the states can regulate arms is in those
situations in which they conflict with property rights. It is a fundamental
principal in law that the owners or managers of real property have the power to
regulate who may enter their premises, and to set conditions upon their entry.
That includes public property. Citizens have a right to keep and bear arms -- on
their own property or property they control -- but not on someone else's
property without his permission.
(8) In other words, citizens have a right to keep and bear arms in those
places and situations where they have a right to be, unless such rights
are disabled by due process of law. Fundamental natural rights can never
be lost, as contractual rights can be, only the exercise of those rights
restricted or "disabled", to use the legal term. The distinction is
very important. Natural rights are those which the individual brings with him
when he enters into the social contract, and reclaims if the social contract is
broken. The right to keep and bear arms is such a natural right, as is the right
of free speech, religious belief, and privacy. The alternative is a contractual
right created by a contract, such as the social contract. The right to vote or
to be judged by a jury of one's peers are examples of rights created by the
social contract, albeit important ones that are also constitutionally protected.
Because they are constitutionally protected, it is only proper to speak of them
as disabled, rather than lost, so long as the subject remains a citizen or
natural person, depending on whether it is a right of citizenship or personhood.
(9) It is unconstitutional to "disable" any rights by statute
except one set: the rights of majority. The disabilities of minority do not need
to be established by a court trial or hearing. However, they can be removed
sooner than they would be removed by constitution or statute, by reaching a
certain age. This means it is unconstitutional to disable the right to keep and
bear arms to a class of persons by statute, including those, such as felons, who
have been the subject of due process on another issue, except through a
proceeding in which the court is explicitly petitioned to disable them, the
subject has an opportunity to argue to the contrary, the petitioner has the
burden of proof that the subject if armed would be a threat to himself or
others, and the court grants that petition. Merely being convicted of a crime,
or declared mentally incompetent, is not sufficient if the language of the
judgement does not also explicitly disable the right to keep and bear arms, or
set restrictions on such right.
(10) "General police powers" is not a constitutional basis for
states or localities to regulate arms. "General police powers" are the
powers to use the means necessary and sufficient to stop someone who threatens
to commit a major crime, or to arrest someone who has done so. All citizens have
such power. They differ from regular, professional police only in that the
regular police also have "special police powers" in matters such as
minor offenses, and in that they outrank civilians. Since citizens have
general police powers, they also have the right to such means as they require to
exercise such powers in situations in which they may be called upon to do so.
That includes arms.
(11) To be constitutional, state laws restricting the bearing of arms must
distinguish between public property, private commercial property which serves
the public and which therefore confers certain rights to the public, and other
private property with no public access rights. It is reasonable and
constitutional to prohibit persons from bearing arms onto purely private
property without notifying the owner or manager and obtaining his or her
permission, except over public easements, such as sidewalks or the walkway from
the street to the front door. On the other hand, it would be an undue burden on
the right to bear arms to forbid persons from traveling between places where
they have a right to be, and to bear arms while they do so, along public
pathways or private easements, and using their own or a public means of
transportation. It may not, however, be an undue burden to prohibit the bearing
of arms onto certain public property where persons do not have unrestricted
access, such as office buildings and auditoriums, provided that authorities
guarantee the safety of persons who enter unarmed. Owners of commercial property
serving the public which confers some rights of access to the public may
prohibit the bearing of arms by posting or giving a notice to that effect, but
lacking such notice, bearing arms onto the premises would be permitted. The rule
must be that laws must not burden the right to bear arms except to the extent
that they would impose a greater burden on the right of property owners to
exclude persons bearing arms.
(12) The law must presume that places of business that cater to arms, such
as gun shops and shooting ranges, and events such as gun shows, offer
presumptive permission to bear arms and that therefore it is not illegal to bear
them there or to travel to and from them.
(13) A carry permit system essentially is a removal of restrictions against
bearing arms on public and private property unless there is an express
prohibition against doing so, either in the form of a posted sign or a directive
from the owner or his agent. The rationale for issuing such permits is to equip
persons of good character to more effectively function as militiamen or police
in situations in which regular police are not available or insufficient. That
also includes self-protection, but the key factor is the duty to perform police
duties as necessary. There also needs to be explicit statutory protection of the
state or other permit issuing authority against criminal or civil liability for
any acts done by the permit holder. One kind of carry permit is that which is
one of the "special police powers" of regular law-enforcement
officers, which allows them to carry anywhere, even against the express wishes
of a property owner.
(14) With the high levels of crime we now endure, the only effective way to
extend police protection to a level that might deter crime is to recruit a
substantial proportion of the public to go armed, by issuing them carry permits,
offering them police training, and organizing them into a network of militia
units closely coordinated with regular law enforcement agencies. It is likely
that as many as 25% of the adult public could serve in this way on a regular
basis, and another 25% on an occasional basis, and that if they did, we might
expect it to have a significant positive impact on crime. Some such citizens
might even be granted higher police rank, and perform regular police duties on a
part-time basis. Such involvement of the public in law enforcement would also
have other benefits: breaking down the social and psychological barriers that
now separate the regular police from civilians, and deterring some of the abuses
of authority that police have sometimes fallen into.
(15) That the militia should be "well-regulated" is not a basis
for restricting the keeping or bearing of arms. The term originally meant "self-regulated"
and militias could be independent of state or national authority if not called
up by such authority. Militia members may be required to carry certain standard
arms during formations, but they cannot be forbidden from carrying additional
arms of their own unless doing so would impair normal militia operations.
State-appointed officers may direct when, where and in what manner members of
the militia are to train and perform their duties, but may not forbid them to
meet on their own.
(16) The Union government has the power, under the U.S. Constitution, to
regulate imports and interstate commerce in arms, but the Framers would not
agree with how the "interstate commerce" clause (Art. 1, Sec. 8) of
the Constitution has been broadly interpreted to include regulation of
manufacture, possession, and local sales and use of items. A strict
constitutional interpretation requires that the Union government has authority
only over transactions that cross state lines, and not over actions or
transactions that occur within state borders, even if they involve items that
may someday cross state borders or may have once done so. If we want the Union
government to have such authority, and a good case can be made for that, then
the U.S. Constitution needs to be amended to delegate that authority to it.
(17) The Union government also has excise taxing power, but since arms have
special status under the Constitution, no tax may be levied that imposes an
undue burden on the right to keep and bear arms. Rights are more fundamental
than taxing powers, particularly since the right to keep and bear arms is
recognized in an amendment which supersedes any prior provisions that conflict
with it, which includes all taxing powers except the income tax (which does not
provide a basis for taxing arms). Arms may be taxed as general merchandise is,
such as with a sales tax, but any tax law which specifies arms for special
taxes, other than reasonable use fees for public services related to them, must
be considered unconstitutional. That would include taxes on ammunition and the
ingredients to make it. The analogy is to taxes on newsprint, which may be taxed
like other merchandise, but not in a way that would impose an undue burden on
the right of a free press.
(18) This means that no government has the power, unless that power is
specifically granted to it under its constitution, to prohibit any person from
manufacturing or possessing any gun or ammunition for it on his own premises or
where he has a right to be, or against using it in a safe and responsible
manner, or against selling or giving it to another person within the borders of
(19) Since the common law prevailing at the time the Constitution was
adopted defined "militia" to consist of "able-bodied"
citizens, including persons younger than the usual age of majority, any law
restricting the possession, sale or gift of guns or ammunition to persons under
the age of majority or any other particular age, or to minors (since persons
under the age of majority may have their disabilities of minority removed by a
court), is also unconstitutional, unless the constitution explicitly includes a
disability of the right to keep and bear arms among the disabilities of
minority. The proper test for being "able-bodied" must involve meeting
certain standards that are independent of age, such as skill, judgement, and
level of maturity. It is possible for persons to be "able-bodied" at
quite a young age, and the law must recognize that competence where it exists.
All citizens above the age of majority would have to be presumed able- bodied
unless they or the state petitioned a court to rule otherwise and it granted the
petition. However, it would be constitutional to require a reasonable test of
competence to citizens below the age of majority, and to issue credentials to
those qualifying which they would be required to show when answering calls of
the militia or, if the right to keep and bear arms were included among the
rights disabled by minority, when bearing arms. Early removal of the
disabilities of minority would then also remove the disabilities of the right to
keep and bear arms.
(20) The "full faith and credit" clause of the U.S. Constitution
requires that persons issued a carry permit by one state must have that permit
recognized in other states. This suggests a uniform standard for qualifying
persons for issuance.
REFERENCE: Stephen P. Halbrook, That Every Man be Armed,
available from The Independent Institute, 134 98th Av, Oakland, CA 94603,
2900 W. Anderson Lane #C-200-322 Austin, TX 78757 512-299-5001