Idaho Law Review
Comments 37 (2000): 203.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the
local law library or obtain a back issue.
THE SECOND AMENDMENT: A GUARD FOR OUR FUTURE SECURITY Andrew M. Wayment *
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................
II. THE ENGLISH ORIGINS OF THE RIGHT TO KEEP AND BEAR ARMS ...... 204
A. Henry de Bracton's Ideas about the Important Relationship Between
Arms and Law ............................................................................................... 205
B. The Change in Ideas Concerning Sovereignty and the Resulting Belief in
the Right to Alter or Abolish Tyrannical Government ....................................... 206
C. The Codification of the Right to Keep and Bear Arms in the English
Bill of Rights .................................................................................................
D. The Underlying Purpose of the Right to Keep and Bear Arms According
to Sir William Blackstone .............................................................................. 208
E. John Locke's Ideas in The Second Treatise of Government about the
Right of the People to Alter or Abolish a Tyrannical Government .................... 210
III. THE COLONISTS' VIEWS ON THE RIGHT TO KEEP AND BEAR ARMS
AND THE RIGHT TO ALTER AND ABOLISH DESPOTIC GOVERNMENT'S..212
A. The British Attempt to Disarm the Colonists was a Substantial Cause to the
Outbreak of the Revolutionary War ............................................................... 212
B. State Legislatures Passed Bills of Rights Codifying the Right to Keep and
Bear Arms ....................................................................................................
IV. THE DECLARATION OF INDEPENDENCE: THE KEY TO
UNDERSTANDING THE SECOND AMENDMENT ........................................... 215
V. THE FRAMERS' VIEWS ON THE RIGHT TO KEEP AND BEAR ARMS
AND THE ADOPTION OF THE BILL OF RIGHTS ............................................. 217
VI. THE INCORRECTNESS OF THE CURRENT STATE OF THE LAW ON
THE SECOND AMENDMENT ............................................................................. 223
VII. CONCLUSION ...............................................................................................
To understand the Second Amendment and its importance and relevance for us today, one must analyze the origins
of the right to keep and bear arms, the events surrounding the Revolutionary War, and the ratification of the Constitution
and the Bill of Rights. When this is done, it becomes apparent that the right to keep and bear arms is inseparably
connected with the inalienable right of the people to alter and abolish a tyrannical government. One of the
main objectives of the Framers of the Second Amendment was to specifically ensure that this fundamental right,
which they had successfully exercised in the Revolutionary War, would be preserved for future generations. The
Second Amendment serves as an essential check and balance against the possibility of governmental tyranny. Therefore,
the right of individuals to keep and bear arms, like many other provisions of the Constitution, should be respected
and protected today as crucial to the maintenance of our freedom.
II. THE ENGLISH ORIGINS OF THE RIGHT TO KEEP AND BEAR ARMS
To begin with, where did the Founders get the idea of the right to individual gun ownership? As early as 690
A.D., English law required Englishmen to possess arms for military service and for assisting in local police services,
such as protecting the villages and pursuing criminals. As this obligation continued through the centuries,
Englishmen began to recognize the value of and the need for individual gun ownership. [Page 205]
A. Henry de Bracton's Ideas about the Important Relationship Between Arms and Law
In the thirteenth century, Henry de Bracton, called the progenitor of modern Anglo-American legal culture,
wrote about the important relationship between arms and the preservation of laws. He stated:
To rule well a king requires two things, arms and laws, that by them both times of war and of peace may rightly
be ordered. For each stands in need of the other, that the achievement of arms be conserved [by the laws], the
laws themselves preserved by the support of arms.
In defining the term "law," Bracton explained, "[A law is] a just sanction, ordering virtue and
prohibiting its opposite." The purpose of law, according to Bracton, is to "do justice and give just
judgment between man and man." Furthermore, Bracton defines "justice" as "the constant and
unfailing will to give each his right." Although Bracton's statements concerning arms pertain to a king's
prerequisites for ruling justly, it illustrates that early on Englishmen realized that arms were necessary to preserve
laws and to protect the rights of the people, and conversely, that laws were necessary to preserve arms. Furthermore,
it illustrates that Englishmen viewed the possession of arms as an essential attribute of sovereignty. [Page
B. The Change in Ideas Concerning Sovereignty and the Resulting Belief in the Right to Alter
or Abolish Tyrannical Government
By the seventeenth century, ideas about the sovereignty of kings had changed drastically. Because of the
Enlightenment, Englishmen had rejected the idea of the Divine Right of Kings and believed that the people were
the true sovereigns. For example, shortly after the beheading of King Charles I, John Milton, a famous English
writer, justified this action by stating:
[T]he power of kings and magistrates is nothing else but what is only derivative, transferred, and committed
to them in trust from the people . . . in whom the power yet remains fundamentally and cannot be taken from them
without a violation of their natural birthright. . . . [I]t follows, . . . that since the king . . . holds his
authority of the people, . . . then may the people, as oft as they shall judge it for the best, either choose him
or reject him, retain him or depose him, . . . merely by the liberty and right of freeborn men to be governed as
seems to them best. [Page 207]
As is evident from this passage, Milton believed that a ruler's power was derived from the people, and furthermore,
that the people had the right to change their government when they deemed it necessary. To further drive this point
home, Milton exclaimed:
And surely they that shall boast as we do, to be a free nation, and not have in themselves the power to remove
or to abolish any governor supreme, or subordinate . . . may please their fancy with a ridiculous and painted freedom,
fit to cozen babies; but are indeed under tyranny and servitude, as wanting that power which is the root and
source of all liberty.
Milton's statement illustrates that he and many other Englishmen recognized that because the people are the
true sovereigns, they have the power, or fundamental right, to alter and abolish a tyrannical government. Indeed,
Milton called this power "the root and source of all liberty." It follows a fortiori that
this right would be illusory if the people did not have the means of carrying it out. Therefore, along with the
belief in the sovereignty of the people, the individual right to keep and bear arms developed into a cherished
right to the English. The people saw this right as a major protector of their rights and sovereignty, and it would
not be long before they codified it.
C. The Codification of the Right to Keep and Bear Arms in the English Bill of Rights
Shortly after James II, the last Stewart king, was dethroned in the Glorious Revolution, Parliament enacted
the English Bill of Rights in 1689. In this document, Parliament accused James II of [Page 208] "endeavor(ing)
to subvert and extirpate the Protestant Religion and the Lawes [sic] and Liberties of the Kingdome [sic]."
Among Parliament's stated grievances was the allegation that King James II had caused "several good subjects
being Protestants to be disarmed at the same time when the papists were both armed and employed contrary to law."
Therefore, Parliament sought to codify the individual right to keep and bear arms as one among many of the people's
"[ancient] Rights and Liberties." Parliament did so by stating: "[t]hat the subjects which are
Protestants may have arms for their Defence [sic] suitable to their conditions and as allowed by law."
Clearly, in making this declaration, Parliament hoped to preserve the right of all Englishmen, Protestants and
Catholics, to keep and bear arms. Under the English Bill of Rights, it seems that the original underlying rationales
for allowing the people to keep and bear arms — the common defense and local police
service — although still important, took on less significance. Instead, the
beliefs that the people have the right to bear arms for self-defense and also to defend themselves against despotic
attempts to subvert their liberties seem to have become the prominent rationales.
D. The Underlying Purpose of the Right to Keep and Bear Arms According to Sir William Blackstone
Another important source further illustrating this point is William Blackstone's Commentaries on the Laws
of England, in which he explains the underlying purpose of the right to keep and bear arms as understood in
the English common law. According to Blackstone, [Page 209] the liberties of Englishmen are reducible into
three principal rights: the right of personal security, the right of personal liberty, and the right of private
property. However, Blackstone asserted that any declaration of these rights would be meaningless "if the
constitution had provided no other method to secure their actual enjoyment."
The common law, therefore, developed barriers against infringement upon these rights. According to Blackstone,
whenever the government infringed upon any of the three principal rights, the people could employ certain auxiliary
rights to ameliorate the problem. First, the people had the right to apply to the court system for redress
of injuries. Second, the people had the right to "petition the king, or either house of parliament,
for the redress of grievances." However, if these branches of government failed to provide the necessary
relief, then the people had the right of having and using arms for their defense and self-preservation "when
the sanctions of society and laws are found insufficient to restrain the violence of oppression."
According to Blackstone, English common law recognized the right to own guns as a way for an individual to protect
himself and "the three great and primary rights" in the face of an actual violation or attack by
a tyrannical government. In essence, under the common law, individual gun ownership is to serve as the final
safeguard when the government fails to protect the rights of the people.
Legal scholars, judges, and lawyers in colonial times and after the ratification of the Constitution used Blackstone's
Commentaries as a reference to help them understand the various aspects of the common law. Blackstone's
ideas concerning the underlying purpose [Page 210] of the right to keep and bear arms must have reflected and significantly
influenced the colonists' understanding of this right under the common law, and led them to take the actions they
pursued in the Revolutionary War and in the drafting of the Second Amendment.
E. John Locke's Ideas in The Second Treatise of Government about the Right of the People
to Alter or Abolish a Tyrannical Government
Along with the political philosophers and legal scholars already mentioned, John Locke's views were very influential
on the colonists during the Revolutionary War and the founding of our country. In The Second Treatise on
Government, Locke states that the primary reason that people join together to form governments is "for
the mutual preservation of their lives, liberties and estates." According to Locke, a government becomes
tyrannical whenever it applies the power which the people placed into its hands "to impoverish, harass, or
subdue them to the arbitrary and irregular commands of those that have it." Furthermore, Locke asserted
that all forms of government are susceptible to tyranny. Therefore, according to Locke:
[W]henever the legislators endeavor to take away and destroy the property of the people, or to reduce them to
slavery[,] . . . they put themselves into a state of war with the people, who are thereupon absolved from any farther
[sic] obedience, and are left to the common refuge which God hath provided for all men against force and violenee
What is mankind's God-given "common refuge" against tyranny that Locke alludes to here? Certainly
Locke is referring to the inalienable right of the people to defend themselves against a despotic government which
ceases to fulfill the purposes for which it was formed. Furthermore, Locke states:
Whensoever . . . the legislative shall . . . endeavour to grasp themselves, or put into the hands of any other,
an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the
power the people had put [Page 211] into their hands for quite contrary ends, and it devolves to the people, who
have a right to resume their original liberty, and by the establishment of a new legislative (such as they shall
think fit), provide for their own safety and security.
Along with the right of the people to defend themselves against oppression, Locke asserts that the people have
the right to establish a new government which will better protect the people and their rights in the future.
Although Locke does not mention the people's right to resort to arms in the above passages, armed resistance
is clearly implied as this would oftentimes be the only suitable means to use against governmental violence and
force. However, like Blackstone, Locke asserted that the people should not take up arms against the government
whenever they are aggrieved because this would "unhinge and overturn all polities, and instead of government
and order, leave nothing but anarchy and confusion." Instead, Locke believed that the people only had
the right to use force against unjust and unlawful force. In other words, resorting to arms against an oppressive
government would be the final protection of the rights of the people, not the first.
Although Locke's Second Treatise might be considered by some as simple political philosophy, his ideas
reflected Englishmen's course of action in the past, and were actually implemented by the Founders of our country
in their struggle for independence. When Locke's ideas are compared to the Declaration of Independence, it
becomes apparent that Thomas Jefferson relied heavily upon Locke to justify the Revolution.
Interestingly, as Jefferson was establishing the University of Virginia and its law school in 1825, he inquired
of James Madison which text books for the Law School would best teach "the true doctrines of liberty, as exemplified
in our Political System." In response, [Page 212] Madison wrote: "Sidney & Locke are admirably
calculated to impress on young minds the right of Nations to establish their own Governments, and to inspire a
love of free ones." Although Madison favored the use of the Declaration of Independence over Locke's work,
this statement illustrates how much Locke's ideas had become a political reality to the most influential Framer
of the Constitution and the Bill of Rights.
III. THE COLONISTS' VIEWS ON THE RIGHT TO KEEP AND BEAR ARMS AND THE RIGHT TO ALTER AND ABOLISH
The American colonists carried with them from England their deep-seated belief and practice of the right to
keep and bear arms. The English government's success in luring immigrants to America was due in part to pledges
that the immigrants and their children would continue to possess all the rights of Englishmen. As has been
illustrated thus far, one of these rights was the right to keep and bear arms.
A. The British Attempt to Disarm the Colonists was a Substantial Cause to the Outbreak of the
Interestingly, England's attempt to violate the right to keep and bear arms of the people of Massachusetts was
"the last straw," causing the Revolutionary War. David Hackett Fisher's book, Paul Revere's Ride,
is an excellent sequential account of the beginning of the Revolutionary War in Massachusetts. In this history,
Fisher explains that in the aftermath of the Boston Tea Party, Parliament enacted the Coercive Acts which called
for such things as closing the port of Boston, restricting the local town governments by curtailing their town
meetings, creating a new system of courts in the colony, and lastly, revoking the Massachusetts Charter which was
the form of government created by the people of that colony. The outraged citizens [Page 213] of Massachusetts
referred to the Coercive Acts as the "Intolerable Acts," and began to openly defy this new set of laws.
As a result of this resistance, the British government began efforts to disarm the colonists to prevent war.
To achieve this result, Parliament banned all exports of muskets and ammunition to the colonies. To further
Parliament's aim, General Thomas Gage, the commander in chief of the British Army and the Royal Governor of Massachusetts,
planned to prevent war by removing from Yankee hands the means of violent resistance. According to Gage's plan,
the Red Coats were to disarm New England by a series of small, secret "surgical operations." However,
according to Fisher, one major drawback existed in Gage's plan; the people of New England were jealous of their
liberties, particularly their right to keep and bear arms.
Hence, the Minutemen were more than willing to contend with the British Army as it marched to Lexington and
Concord in an attempt to disarm the rebellious patriots. Despite their resulting debacle in this operation,
General Gage and the British Army soon succeeded in disarming the individual citizens of Boston, and this in
turn helped to persuade the rest of the colonies to enter the war. On July 6, 1775, in its Declaration of Causes
and Necessity of Taking Up Arms, the Continental Congress specifically mentioned the disarmament of the citizens
of Boston as one of the reasons to take up arms against the British.
It seems indisputable that "the shot heard 'round the world" was, in part, fired to protect the right
to keep and bear arms. The New Englanders and the patriots in general recognized the crucial role that this
right played in protecting all of their other rights. This included their right to alter and abolish tyrannical
government which they felt compelled to exercise at that time. Furthermore, the colonists exercised both rights
in the precise manner that Blackstone and [Page 214] Locke had outlined in their works; they did not resort to
arms until the British Army attempted to violate their liberties by force.
B. State Legislatures Passed Bills of Rights Codifying the Right to Keep and Bear Arms.
Not long after the outbreak of the Revolutionary War, many of the state legislatures drafted bills of rights
to protect against the recent abuses. One of the major concerns addressed by these legislatures was the attempted
disarmament of the colonists by the British Army. To ensure that this right would not be tampered with in the
future, the legislatures of Virginia, Pennsylvania, North Carolina, Vermont, and Massachusetts
all adopted provisions guaranteeing the people the right to keep and bear arms.
Although some of the provisions in these bills of rights only expressly provided the right to keep and bear
arms for the defense of the state, it seems clear, in light of the colonists' pending struggle with England, that
the legislators intended to protect it as an individual right which could be used against an oppressive government.
Why else would they have taken this course of action? It seems that the legislatures were simply codifying the
right as it had existed in the common law. In United States v. Emerson, District Judge Cummings stated:
"[t]he individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor
in the colonists' victory over the British army in the Revolutionary War. Without that [Page 215] individual right,
the colonists never could have won." There can be no doubt that the struggle for independence from England
impressed upon the minds of these legislators the importance of the right to keep and bear arms. The revolutionaries
must have recognized that if the British had been successful in disarming the colonies, then the colonists never
would have had a chance.
Interestingly, this was the second time in Anglo-American history that legislatures felt the need to protect
this common law right. The first instance, as already mentioned, occurred in 1689 when Parliament created the English
Bill of Rights. History seems to illustrate that Bracton was correct when he described the important relationship
between arms and laws: "For each stands in need of the other, that the achievement of arms be conserved [by
the laws], [and] the laws themselves preserved by the support of arms." The state legislators recognized
this important relationship and felt the need to enact legislation that would preserve this right so that it could
in turn preserve all of their other laws and rights. Therefore, it is no wonder that after the ratification of
the Constitution, the Framers sought to constitutionalize the individual right to bear arms in the Second Amendment,
just as their forebears had done one hundred years earlier and their state legislatures a decade earlier.
IV. THE DECLARATION OF INDEPENDENCE: THE KEY TO UNDERSTANDING THE SECOND AMENDMENT
After the declaration of war between England and the colonies, the Continental Congress in Philadelphia issued
the Declaration of Independence to set forth "the causes which impel[led] them to the separation."
When reading this document, one can clearly see the influences of Blackstone and Locke, especially in its designation
of the three principal rights. Probably the most often quoted phrase in the Declaration is: "We hold these
truths to be self-evident, that all men are created equal, that they are endowed by their Creator with cer-[Page
216] tain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The Declaration further states that the main purpose of government is to insure that these rights are never
infringed upon. However, "whenever any Form of Government becomes destructive of these ends, it is the
Right of the People to alter or abolish it, and to institute new Government." Even though the people have
this right, Jefferson, the principal author of the Declaration, explained that "[p]rudence, indeed, will dictate
that Governments long established should not be changed for light and transient causes." However, "when
a long train of abuses and usurpation, pursuing invariably the same Object evinces a design to reduce them under
absolute Despotism," argued Jefferson, "it is their right, it is their duty to throw off such Government,
and provide new Guards for their future security." With the Declaration of Independence, the Continental
Congress was vindicating the exercise of both the right to alter and abolish a despotic government and the right
to keep and bear arms as prescribed by Blackstone and Locke.
What are these "new Guards for our future security" that Jefferson referred when he wrote the Declaration?
Clearly these guards, whatever Jefferson intended, were to prevent oppressive government from gaining control in
the future. Later in his life Jefferson was asked whether he thought the Declaration should be set aside "to
spare the feeling of our English friends." To which he adamantly replied, "it is not to wound them
that we wish to keep it in mind; but to cherish the principles of the instrument in the bosoms of our own citizens.
. . . I pray God that these principles may be eternal."
Similarly, with deep respect for the Declaration of Independence, James Madison, the primary architect of the
Constitution and the Bill of Rights, later recommended the Declaration as the first of "the best guides"
to the "distinctive principles of the Government." In making these statements, it appears that two
of the most influential people during both the Revolution and the founding of our country were insisting that the
people still had the rights described in the Declaration, [Page 217] particularly the right to alter and abolish
a tyrannical government.
If the people have this right as Jefferson and Madison claimed, where is it guaranteed in the Constitution?
Interestingly, in the text of the Second Amendment Madison, the principal drafter, explains that the Amendment's
primary purpose is to ensure "the security of a free state." Perhaps, in light of his appreciation
for the Declaration of Independence, Madison viewed the Second Amendment as one of the "Guards for [our] future
security" that Jefferson referred to in the Declaration.
This interpretation makes sense. If the people have a duty to "throw off" a tyrannical government,
then how can they uphold this duty if they do not have the means? The term "throw off" implies the use
of force. Therefore, it seems that the Second Amendment guarantees the individual right to bear arms so that if
the Federal Government ever becomes absolutely despotic, then the people would have the means to alter or abolish
it just as the colonists had in the Revolutionary War. This is precisely how the Second Amendment guarantees "the
security of a free state."
V. THE FRAMERS' VIEWS ON THE RIGHT TO KEEP AND BEAR ARMS AND THE ADOPTION OF THE BILL OF RIGHTS
Under the Articles of Confederation, there was no mention of the individual right to keep and bear arms, and
the protection of this right was left to the individual states. Nevertheless, even before the adoption of the
Constitution and the Bill of Rights, the Framers continued to recognize this as a fundamental right. One of
the major goals of the delegates at the Constitutional Convention was to establish a new government with checks
and balances which would make it difficult for the government to ever become tyrannical. However, [Page 218]
recognizing future tyranny as a possibility, Alexander Hamilton reassured his readers in Federalist No. 28 that,
[i]f the representatives of the people betray their constituents, there is then no recourse left but in the
exertion of that original right of self-defence [sic] which is paramount to all positive forms of government,
and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success
than against those of the rulers of an individual state.
Hamilton's statement illustrates that even before the Bill of Rights, he and the other Framers continued to
recognize the right of the people to defend themselves as a check against the possibility of tyranny.
Furthermore, in light of their past experience with England, the Framers feared a federal standing army as a
tool easily employed by a despotic government to subvert the liberties of the people. Therefore, in response
to Congress' power to create a standing army, the delegates at the convention determined that a militia made
up of the people would be "the most natural defense of a free country." In Federalist No. 29,
Alexander Hamilton argued:
[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never
be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior
to them in discipline [Page 219] and the use of arms, who stand ready to defend their own rights and those of their
In other words, an armed populace would serve as a check and balance against the possibility of the Federal
Government ever using a standing army to oppress the people of the United States. It seems that the Framers' ideas
about the right to keep and bear arms continued to accord with Blackstone's description of this right at common
To reiterate Hamilton's point, James Madison argued that according to his calculations, if Congress created
a standing army, it would probably not exceed one hundredth part of the whole of the United States citizenship,
or one twenty-fifth part of the number able to bear arms. In contrast, this comparatively small federal army
"would be opposed . . . to near half a million citizens with arms in their hands, officered by men chosen
from among themselves, fighting for their common liberties, and united and conducted by governments possessing
their affections and confidence." Madison viewed the right to keep and bear arms as an advantage "which
the Americans possess over the people of almost every other nation" because the kingdoms of Europe were "afraid
to trust the people with arms."
To further calm the fears aroused by the threat of tyranny, Madison pleaded: "[l]et us not insult the free
and gallant citizens of America with the suspicion, that they would be less able to defend the [Page 220] rights
of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs
from the hands of their oppressors." In this statement, Madison asserted that because the American people
had the advantage of being armed, they would be more capable of defending their rights than the "subjects
of arbitrary power" in Europe. Moreover, his statement implies that the Europeans in these countries
had already been deprived of their rights partly because they did not have the right to keep and bear arms. In
light of this implication, it seems that the Framers believed that the people's right to keep and bear arms would
serve as a deterrent, or a "guard" as described in the Declaration of Independence, against any
governmental infringement upon their liberties such as that which had occurred in Europe.
To further illustrate the connection between the right to keep and bear arms and the Declaration of Independence,
Madison went on to say, "[l]et us rather no longer insult [the people of America] with the supposition that
they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the
long train of insidious measures which must precede and produce it." Although this passage is
a little confusing, it seems that Madison is making a direct reference to the Declaration's language that "when
a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them
under absolute Despotism, it is their right, it is their duty to throw off such Government, and to provide new
Guards for their future security." If this is in fact what Madison was doing here, then clearly he was
asserting that if the government ever becomes oppressive, then the people will not have to blindly and tamely submit
to "the long train of insidious measures which . . . precede[s] and produce[s]" tyranny. Instead,
the people can "mak[e] the experiment," or in other words, the people can exercise their
right to alter and abolish tyrannical government as described in the Declaration of Independence. [Page 221]
When the first Congress met after the ratification of the Constitution, Madison presented a draft of some tentative
amendments which he felt were "proper to be recommended by Congress to the State Legislatures."
The first of these proposed amendments explicitly illustrates Madison's deep reverence for John Locke's ideas and
the Declaration of Independence:
First. That there be prefixed to the Constitution a declaration that all power is originally vested in, and
consequently derived from, the people. That Government is instituted and ought to be exercised for the benefit
of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property,
and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable,
and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate
to the purposes of its institution.
Where is this particular amendment in the Constitution? It seems that the first two sentences of this amendment
are reflected in the preamble's language:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.
The Preamble illustrates that the power is derived from the people and that this new government is instituted
for their benefit, but where is the third sentence of this proposed amendment reflected in our Constitution? Interestingly,
Madison described this right in unequivocal terminology when he stated, "the people have an indubitable, inalienable,
and indefeasible right to reform or change their Government." By this statement it seems that Madison,
like Milton, viewed [Page 222] this right as "the root and source of all liberty," and this is why
he felt that a declaration of this right was necessary to preserve the sovereignty of the people. Unfortunately,
we do not have any records on the Senate debates over the proposed constitutional amendments because they were
held in secret. Therefore, we do not know exactly why this provision is not expressly laid out in the Constitution.
However, in light of the history of the right to keep and bear arms, it is very arguable that the Framers of
the Bill of Rights felt this provision unnecessary because the Second Amendment served exactly the same purpose,
and effectively preserved this right for the people. In support of this argument one legal scholar has asserted,
"the Second Amendment's guarantee of an armed populace [is] a guarantee that was the ultimate check in the
Constitution's grand design of checks and balances, a guarantee that the people would remain free, sovereigns of
themselves." In short, the Framers considered the individual right to keep and bear arms as the "paramount
right by which [all] other rights could be protected." This is what the right meant at common law; this
is what the right meant to the colonists in the Revolutionary War; and this is what the right meant to the Framers
of the Constitution and the Bill of Rights. Unfortunately, this is not how the majority of courts have interpreted
this right. [Page 223]
VI. THE INCORRECTNESS OF THE CURRENT STATE OF THE LAW ON THE SECOND AMENDMENT
The major Supreme Court case on the Second Amendment is United States v. Miller. In this case the
Court failed to do the proper historical analysis on the origins and meaning of the right to keep and bear arms,
and as a result, misinterpreted the major purpose of this right. In Miller, the defendant was charged with
violating the National Firearms Act because he had transported - in interstate commerce from Oklahoma to Arkansas
- "a double barrel 12-guage Stevens shotgun having a barrel less than 18 inches in length" without registering
it or without obtaining "a stamp-affixed written order for the said firearm" as the statute required.
In his defense, Miller claimed that the statute violated the Second Amendment. At trial, the district court
agreed and quashed the indictment. However, the Supreme Court reversed and held:
In 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 Second Amendment guarantees the right to keep and
bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the common defense.
In other words, the Court believed that the Second Amendment granted the people the right to keep and bear arms
for the sole purpose of serving in militias for the common defense. Hence, the people only had the right to own
a weapon if it had a "reasonable relationship to the preservation or efficiency of a well regulated militia."
The Court came to this conclusion because it believed that the key to interpreting the Second Amendment is Congress'
powers set forth in the Constitution:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions; To provide for organizing, arming, and disciplining, the Militia, [Page 224] 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 Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
Concerning these provisions, the Court stated, "[w]ith obvious purpose to assure the continuation and render
possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must
be interpreted and applied with that end in view." In other words, the Court believed that the Second
Amendment's purpose was to better enable Congress to exercise these powers, or to better provide for the common
defense of the nation. Seemingly, under this interpretation, the Second Amendment does not add much, if anything
at all, to the Constitution.
Furthermore, the Court's incorrect conclusion on the main purpose of the right to keep and bear arms stemmed
from an incomplete historical analysis. According to the Court, the right to keep and bear arms originated from
England and the colonies' tradition of a militia system based on the assize of arms, which was "the general
obligation of all adult male inhabitants to possess arms, and . . . to cooperate in the work of defence [sic]."
The Court then went on to illustrate this system by discussing the statutes of Massachusetts, New York, and Virginia
which set forth this obligation. As a result of its incomplete analysis, the Court concluded that the major
purpose of the right to keep and bear arms is to provide the people with arms so that they could serve in militias
for the common defense.
Clearly, the Court is correct in the fact that this was the original purpose of the right to keep and bear arms
in England. Furthermore, as illustrated by the state statutes cited in Miller, the "common defense"
continued to be an important aspect of this right in the colonies and subsequently the states. However, the
problem with the Court's analysis is that it failed to take into consideration the evolution of the right to keep
and bear arms in Anglo-American history. As illustrated in the English Bill of Rights and Blackstone's Commentaries,
the right took on two other important purposes, namely: the fundamental right of self-defense and the right of
the people to defend [Page 225] themselves against a tyrannical government. Over the course of English history,
these two purposes developed into the prominent rationales underlying the people's right to keep and bear arms.
Another flaw in the Supreme Court's decision in United States v. Miller, as best expressed by Justice
Thomas's concurring opinion in Printz v. United States, is that "[t]he Court [in Miller] did
not . . . attempt to define, or otherwise construe, the substantive right protected by the Second Amendment."
Along this same line, Judge Cummings in United States v. Emerson asserted that the Court in Miller
failed to "answer the crucial question of whether the Second Amendment embodies an individual or collective
right to bear arms." Furthermore, the Court failed to address with sufficient clarity the types of weapons
that the people may own if the right is a personal right rather than a collective one. As Judge Cummings has so
aptly put it:
Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for
example, that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments
that are clearly for modern warfare, including, of course, assault weapons. Under Miller, arguments about
the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more
likely, assault rifles, thus might turn on the usefulness of such guns in military settings.
Needless to say, because of the Supreme Court's failure in Miller to do a complete and accurate historical
analysis on the origins and substance of the right to keep and bear arms, there is much confusion and debate today
over what the Second Amendment actually guarantees.
Following United States v. Miller, other federal courts have further misinterpreted the Second Amendment
without doing the necessary historical analysis of the Framers' intentions. For example, in Cases v. United
States, the defendant was charged with, among other things, transporting "a .38 caliber Colt type revolver"
in violation of the Federal Firearms Act. In response to this charge, the defendant [Page 226] argued that
the Federal Firearms Act was unconstitutional because it violates the right of the people to keep and bear arms
in the Second Amendment. However, the First Circuit Court of Appeals asserted:
The right to keep and bear arms is not a right conferred upon the people by the [F]ederal [C]onstitution. Whatever
rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment
being to prevent the federal government and the federal government only from infringing that right."
In other words, the court interpreted the right as the collective right of the states to maintain militias and
to regulate the types of weapons that a militia member could own. Therefore, the court held that the Federal Government
can limit the keeping and bearing of arms by individuals as long as it did not infringe on a state's right "to
the preservation or efficiency of a well regulated militia." As a result, the court upheld the constitutionality
of the Federal Firearms Act as applied to the defendant.
Using the same reasoning as the court in Cases, in 1976 the Sixth Circuit Court of Appeals, in United States
v. Warin, also asserted that the right to keep and bear arms is a collective rather than an individual right.
In Warin, the defendant was charged with possession of a 9 mm prototype submachine gun without registering
it under the Firearms Registration and Transfer Record as required by the Gun Control Act of 1968.
Claiming Miller as authority, defendant Warin argued that "a member of the 'sedentary militia' may
possess any weapon having military capability and that application of [the Gun Control Act] to such a person violates
the Second Amendment." However, the court [Page 227] disagreed with Warin's interpretation of Miller,
and stated that "the Second Amendment guarantees a collective [right of the states] rather than an individual
right." Furthermore, Ohio had a law which stated that "[n]o person shall knowingly acquire, have,
carry, or use any dangerous ordnance." The court went on to say that although Ohio had exempted members
of the state's organized militia from this prohibition, it had not exempted members of the "sedentary militia."
Therefore, the court held that "the defendant [had] no private right to keep and bear arms under the Second
Amendment which would bar his prosecution and conviction for violating [the Gun Control Act of 1968]."
Since Warin, both the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals have adopted
the interpretation of the Second Amendment as a collective right of the states, rather than an individual right.
This incorrect interpretation has stemmed from the fact that not one of these courts has done the proper historical
analysis to determine the right's meaning at common law, the right's meaning to the colonists in the Revolutionary
War, and the right's meaning to the Framers. In fact, these cases are almost devoid of any kind of histori-[Page
228] cal analysis whatsoever. Instead, these courts have chosen to base their reasoning on the shaky foundation
of United States v. Miller.
Despite the seeming consensus in the federal court systems, as one recent commentator has explained, "the
great majority of those who have seriously considered the Amendment in peer-reviewed journals and other scholarly
settings in recent years have come to agree . . . [that] [t]he Second Amendment recognizes an individual right — not a collective right or a right of the states." In his concurring opinion
in Printz v. United States, Justice Thomas acknowledged this fact: "Marshaling an impressive array
of historical evidence, a growing body of scholarly commentary indicates that the 'right to keep and bear arms'
is, as the Amendment's text suggests, a personal right." Furthermore, Justice Thomas speculated that
"[i]f . . . the Second Amendment is read to confer a personal right to 'keep and bear arms,' a colorable argument
exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or
possession of firearms, runs afoul of that Amendment's protections." Towards the end of his opinion,
Justice Thomas made an interesting prediction: "[P]erhaps, at some future date, this Court will have the opportunity
to determine whether Justice Story was correct when he wrote that the right to keep and bear arms 'has justly been
considered, as the palladium of the liberties of a republic."'
In United States v. Emerson, the United States District Court for the Northern District of Texas has
held, in effect, that Justice Story was correct in his characterization. In Emerson, a Texas district
court had granted the defendant's wife's request for a temporary restraining order against the defendant even though
no evidence was set forth to prove that that he was a threat to her, and the court had made no findings to that
effect. Furthermore, the court failed to warn the defendant that he would be prosecuted "for possessing
a firearm while being subject to the order." Therefore, the defendant [Page 229] "was indicted for
possession of a firearm while being under a restraining order, in violation of 18 U.S.C. § 922(g)(8)."
In his defense, Emerson argued that the act in question violated his Second Amendment right to keep and bear
arms. In response, the court pin-pointed the key issue in the case by stating that "[o]nly if the Second
Amendment guarantees Emerson a personal right to bear arms can he claim a constitutional violation."
To determine whether the right to keep and bear arms is a personal or a collective right, the court began with
a textual analysis of the Second Amendment. It noted that within the amendment are two distinct clauses; the
first is subordinate, and the second is independent. According to the Collective rights theorists,
"the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right
to bear arms." However, the court rejected this argument and stated:
The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the
subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists
independent of the existence of the militia. If this right were not protected, the existence [Page 230] of
the militia, and consequently the security of the state, would be jeopardized.
Furthermore, based on the Supreme Court's interpretation of the Constitution's phrase "the people"
in United States v. Verdugo-Uriquidez, the court concluded that the right guaranteed by the Second
Amendment is a personal right retained by the people, and not a collective right held by the States.
To further support this assertion, the court provided an extensive historical analysis of the origins, evolution,
and meaning of the right to keep and bear arms. To avoid unnecessary repetition of many of the points and
much of the evidence already presented and discussed in this comment, a brief summary of the court's main conclusions
should suffice. To begin with, the court described how the requirement of Englishmen to keep arms to participate
in the militia evolved into an individual right which was codified in the English Bill of Rights in 1689.
As English subjects, the American colonists continued to believe in and to exercise this right. Thus the British
Army's attempt to disarm the colonists was a substantial cause for the outbreak of the Revolutionary War in Concord.
Furthermore, the court stated that the individual right to keep and bear arms was crucial in helping the colonists
win the Revolution. In addition, the court provided extensive evidence which illustrates that the Framers
sought to constitutionalize the individual right to keep and bear arms because they viewed it as a check against
the risks of future tyranny.
One particular piece of convincing historical evidence, which the court used to prove the Framers' intentions,
deserves our attention. In describing the tentative amendments which Madison had drafted to present to the first
Congress, the court stated:
Madison's original plan was to designate the amendments as inserts between specific sections of the existing
Constitution, rather than as separate amendments added to the end of the [Page 231] document. Madison did not designate
the right to keep and bear arms as a limitation of the militia clause of Section 8 of Article I. Rather, he placed
it as part of a group of provisions (with freedom of speech and the press) to be inserted in "Article 1st,
Section 9, between Clause 3 and 4." Such a designation would have placed this right immediately following
the few individual rights protected in the original Constitution, dealing with the suspension of bills of attainder,
habeas corpus, and ex post facto laws. Thus Madison aligned the right to bear arms along with the other individual
rights of freedom of religion and the press, rather than with congressional power to regulate militia.
The court concluded, based on this evidence, that Madison and the Framers intended for the right guaranteed
in the Second Amendment to be interpreted as "a personal right, rather than merely a right for the states
to organize militias."
In short, all of the historical evidence led the court to conclude that "[t] he framers thought of the
personal right to bear arms [as] a paramount right by which other rights could be protected." As a result
of this conclusion, the court held that "18 U.S.C. § 922(g)(8) is unconstitutional because it allows
a state court divorce proceeding, without particularized findings of the threat of future violence, to automatically
deprive a citizen of his Second Amendment rights."
To the Founders of our country, the right to keep and bear arms had a fundamental purpose. The Framers considered
this right as the paramount right by which all other rights could be protected. Furthermore, they saw this
right as the last resort of the people if the checks and balances established in our Constitution ever failed to
protect the rights of the people from tyranny. To sum it up, the right is a guard for our future security.
How is this objective any less impor-[Page 232] tant today than back in the eighteenth century? Yet today, this
right is under attack because of our current social problems best exemplified in the massacre at Columbine High
School. District Judge Cummings hit the mark when he stated:
[C]oncerns about the social costs of enforcing the Second Amendment must be outweighed by considering the lengths
to which the federal courts have gone to uphold other rights in the Constitution. The rights of the Second Amendment
should be as zealously guarded as the other individual liberties enshrined in the Bill of Rights.
It seems necessary for the Supreme Court to quit being "gun-shy" and to take the next opportunity
to address the issue so that gun-owners and gun-controllers know exactly where they stand. Furthermore, it is time
for the Court to step forward and do the proper historical analysis on the Second Amendment which it clearly did
not do in the 1939 case of United States v. Miller. District Judge Cummings has done just that in United
States v. Emerson, and has interpreted the Second Amendment the way its Framers intended. This case is
currently on appeal in the Fifth Circuit Court of Appeals, and regardless of the outcome, the Supreme Court should
take advantage of this opportunity to address the issue if a petition for certiorari is filed. United States
v. Emerson could be the case which Justice Thomas alluded to in his seemingly prophetic statement in Printz
v. United States: "Perhaps, at some future date, this Court will have the opportunity to determine whether
Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium
of the liberties of a republic."'
Andrew M. Wayment *
* B.A., History Major and English Minor, Idaho State University, 1998. J.D. Candidate, University of Idaho,
2001. The author would like to thank his wife Kristin for all of her love and support and Professor James Macdonald
for his helpful suggestions.
1. This phrase comes from THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776), in which Thomas Jefferson, the
principal author, stated that after the people have thrown off a despotic government, then it is their duty "to
provide new Guards for their future security."
2. See United States v. Emerson, 46 F. Supp. 2d 598, 602 (N.D. Tex. 1999) ("A historical examination
of the right to bear arms, from English antecedents to the drafting of the Second Amendment, bears proof that the
right to bear arms has consistently been, and should still be, construed as an individual right. . . . A review
of English history explains the founders' intent in drafting the Second Amendment.").
3. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). The right to keep and bear arms is also closely
connected with the fundamental right of self-defense, but an extensive discussion of that right is beyond the scope
of this comment.
4. See discussion infra Part III-V.
5. Emerson, 46 F. Supp. 2d at 602. The majority of scholars who have seriously considered the right to
keep and bear arms agree that "[t]he right applies to arms one can keep in one's home and bear on one's person;
it does not apply to large crew-operated or machine-carried weapons." David Harmer, Securing A Free State:
Why the Second Amendment Matters, 1998 B.Y.U. L. REV. 55, 59 (1998).
6. DOUGLAS W. KMIEC & STEPHEN B. PRESSER, THE AMERICAN CONSITUTIONAL AORDER: HISTORY, CASES, AND PHILOSOPHY
7. HENRY DE BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 19-28 (Samuel E. Thorne, ed. and trans.) reprinted
in KMIEC & PRESSOR, supra note 6, at 28 (alteration in original).
8. Id. at 31.
11. The Framers of the Constitution and Bill of Rights continued to recognize the right to keep and bear arms
as an essential attribute of sovereignty. See Kevin J. Worthen, The Right to Keep and Bear Arms in Light
of Thornton: The People and Essential Attributes of Sovereignty, 1998 B.Y.U. L. REV. 137, 143-144. For example,
in referring to the people's right to keep and bear arms, John Adams often quoted Aristotle's maxim: "the
commonwealth is theirs who hold the arms: the sword and sovereignty ever walk hand in hand together." Id.
at 143 (citation omitted) (emphasis added).
12. Earlier in England's history, Englishmen adhered to the idea of the Divine Right of Kings. See, e.g.,
KMIEC & PRESSER, supra note 6, at 42 ("[T]he Stuart [kings believed in the] principle of the Divine
Right of Kings and the King's paramount power to make policy."). As an example of this belief, Bracton stated
concerning unjust rulers, "let each one [ruler or judge] take care for himself lest, by judging perversely
and against laws . . . for the advantage of a temporary and insignificant gain, he dare bring upon himself sorrow
and lamentation everlasting." Bracton, supra note 7, at 30. In other words, Bracton was saying that
God would punish unjust rulers on judgment day. This statement implies that the people had no recourse because
of their belief that kings were called of God. See id.
13. This assertion is probably best exemplified by the House of Commons' declaration on January 4, 1649: "The
Commons of England, in Parliament assembled, do declare, That the People are, under God, the original of all just
power. And do also declare, that the commons of England, in Parliament assembled, being chose by, and representing
the people, have the Supreme Power in this nation." KMIEC & PRESSER, supra note 6, at 54.
14. John Milton, The Tenure of Kings and Magistrates (1649) in, PROSE WRITINGS 191-95, 197-99, 201 (Everyman's
Library ed., 1974 reprint) reprinted in KMIEC & PRESSER, supra note 6, at 73-74. Even in the
1200's, Englishmen wrote of their right to depose of a tyrant. For example, St. Thomas Aquinas wrote:
It seems . . . that the remedy against the evils of tyranny lies rather in the hands of public authority than
in the private judgment of individuals. In particular, where a community has the right to elect a ruler for itself,
it would not be contrary to justice for that community to depose the king whom it has elected, nor to curb his
power should he abuse it to play the tyrant. . . . [F]or the tyrant lays himself open to such treatment by his
failure to discharge the duties of his office as governor of the community, and in consequence his subjects are
no longer bound by their oath to him.
ST. THOMAS AQUINAS, On Princely Government, in AQUINAS: SELECTED POLITICAL WRITINGS 2, 31-33 (A. P. D'Entreves
ed. & J. G. Dawson trans. 1959).
15. Milton, supra note 14, at 76 (emphasis added).
16. Id. An interesting parallel exists between Milton's characterization of the right to alter and abolish
a tyrannical government and a statement made by anti-federalist Patrick Henry during the ratification debates.
Referring to the right to keep and bear arms, Henry admonished, "[g] uard with jealous attention the public
liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright
force. Whenever you give up that force you are inevitably ruined." United States v. Emerson, 46 F. Supp. 2d
598, 604-605 (N.D. Tex. 1999) (citations omitted) (emphasis added). It seems that by his characterization, Henry
viewed the right to keep and bear arms as "the root and source of all liberty." To Henry, the people's
right to keep and bear arms ensured that the people would be able to do what they had just done in the Revolutionary
War if this course ever became necessary. See id. Hence, without this right, the people "are inevitably
ruined" because they would not have the means to throw off a tyrannical government. Id.
17. Emerson, 46 F. Supp. 2d at 602.
18. An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, in
6 STATUES OF THE REALM 142, 142 (1820) [hereinafter The English Bill of Rights]. In order to provide some relevant
historical background information, it should be noted that the Stuart kings were sympathetic to Catholicism, and
persecuted the Puritans who sought to purify the Anglican Church. KMIEC & PRESSER, supra note 6, at
42. Furthermore, Parliament feared that the Stuarts wanted "to return the English State church to Roman Catholism,
and thus, in their view, to subject the English State to domination by the Pope." Id. at 54.
19. The English Bill of Rights, supra note 18, at 142. Earlier Charles II had also disarmed Protestants.
Emerson, 46 F. Supp. 2d at 602.
20. The English Bill of Rights, supra note 18, at 143.
22. See LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 137 (1999). Interestingly, Levy informs us that
ninety-eight percent of Englishmen were Protestant. Id. This statistic helps us to see that Parliament intended
for all Englishmen to enjoy this right.
23. See Harmer, supra note 5, at 81.
24. See id.
25. 2 WILLIAM BLACKSTONE, COMMENTARIES *144-145.
26. Id. at *129.
27. Id. at *141.
30. Id. at *142.
31. Id. at *143.
32. Id. at *144.
33. Id. at *141.
34. Id. at *143.
35. Blackstone stated that "in vain would these rights be declared, ascertained, and protected by the dead
letter of the laws, if the constitution had provided no other method to secure their actual enjoyment." Id.
at *140-141. In light of Blackstone's explication on the purpose of the right to keep and bear arms, it seems he
understood the important relationship between arms and laws as expressed in Bracton's maxim: "For each stands
in need of the other, that the achievement of arms be conserved [by the laws], [and] the laws themselves preserved
by the support of arms." BRACTON, supra note 7, at 28.
36. William Carey Jones, the editor of the 1916 edition of Blackstone's COMMENTARIES stated that by the time
of this edition's publishing, the COMMENTARIES had "been cited, and usually approved and followed, some nine
thousand times by the American courts." WILLIAM BLACKSTONE, COMMENTARIES at ix-x (William Carey Jones ed.,
Edition De Luxe. 1916).
37. See discussion infra Part III-IV.
38. See Worthen, supra note 11, at 143-144.
39. JOHN LOCKE, TWO TREATISES ON CIVIL GOVERNMENT 256 (London, George Routledge and Sons 1884) (1690).
40. Id. at 297.
41. Id. at 296-97.
42. Id. at 306.
43. Id. at 306-07.
44. See Akhil Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1163 (1991) ("In
Locke's influential Second Treatise of Government, the people's right to alter or abolish tyrannous government
invariably required a popular appeal to arms.").
45. Locke, supra note 39, at 298.
47. See Amar, supra note 44, at 1163 ("To Americans in 1789, this was not merely speculative
theory. It was the lived experience of their age. In their lifetimes, they had seen the Lockean words of the Declaration
made flesh (and blood) in a Revolution wrought by arms.").
48. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
49. Letter from James Madison to Thomas Jefferson (Feb. 8, 1825), in JAMES MADISON: WRITINGS 807, 807
(Jack N. Rakove ed., 1999) [hereinafter Madison's Letter].
50. Id. Perhaps the "Sidney" Madison referred to in this passage is the martyr Algernon Sydney
who stated that "swords were given to men that none might be slaves, but such as know not how to use them."
LEVY, supra note 22, at 137 (citation omitted). In other words, Sydney considered an armed people as the
best protection against tyranny.
51. Madison's Letter, supra note 49, at 809.
52. See United States v. Emerson, 46 F. Supp. 2d 598, 602 (N.D. Tex. 1999).
54. Stephen P. Halbrook, The Original Understanding of the Second Amendment, in THE BILL OF RIGHTS: ORIGINAL
MEANING AND CURRENT UNDERSTANDING 117, 120 (Eugene W. Hickok, Jr. ed., 1991).
55. See DAVID HACKETT FISHER, PAUL REVERE'S RIDE (1994).
56. Id. at 26.
58. See generally United States v. Emerson, 46 F. Supp. 2d 598, 603 (N.D. Tex. 1999) ("Shortly after
'the Boston Tea Party,' British soldiers, led by General Gage, attempted to disarm the colonists.").
59. FISHER, supra note 55, at 52; see also Emerson, 46 F. Supp. 2d at 603 ("The British Parliament
banned all exports of muskets and ammunition to the colonies and began seizing the colonists' weapons and ammunition.").
60. FISHER, supra note 55, at 43.
62. See id.
63. See Halbrook, supra note 54, at 117.
64. Id. at 118.
65. Id. at 117.
67. See Locke, supra note 39, at 298; see also 2 WILLIAM BLACKSTONE, COMMENTARIES *144.
As previously mentioned, both viewed the right to use force as the people's last resort against oppression.
68. See Halbrook, supra note 54, at 120.
70. The Virginia Declaration of Rights of 1776 states "that a well regulated Militia, composed of the body
of the people, trained to Arms, is the proper, natural, and safe Defence [sic] of a free State." Halbrook,
supra note 54, at 120.
71. The Pennsylvania Declaration of 1776 states "that the people have a right to bear arms for the defence
[sic] of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought
not to be kept . . . ." Halbrook, supra note 54, at 120.
72. The North Carolina Declaration of Rights of 1776 states "that the people have a right to bear arms,
for the defense of the State." Halbrook, supra note 54, at 120.
73. The Vermont Declaration of Rights of 1777 states "that the people have a right to bear arms for the
defense of themselves and the state." Halbrook, supra note 54, at 120-21.
74. The Massachusetts Declaration of Rights of 1780 states "that the people have a right to keep and bear
arms for the common defence [sic]." Halbrook, supra note 54, at 121.
75. 46 F. Supp. 2d 598 (N.D. Tex. 1999).
76. Id. at 603.
77. See discussion supra Part II.C.
78. BRACTON, supra note 7, at 28 (first alteration in original) (citations omitted).
79. THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776).
80. Blackstone stated that the three principal rights were the right of personal security, the right of personal
liberty, and the right of private property. 2 WILLIAM BLACKSTONE, COMMENTARIES *129 (emphasis added). Locke
stated that the primary purpose people join together to form governments is "for the mutual preservation of
their lives, liberties, and estates." LOCKE, supra note 39, at 256 (emphasis added).
81. Id. at para. 2.
86. See Halbrook, supra note 54, at 120.
87. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
88. KMIEC & PRESSER, supra note 6, at 131.
90. Madison's Letter, supra note 49, at 809.
91. U.S. CONST. amend. II (emphasis added).
92. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added).
94. U.S. CONST. amend. II; see also Worthen, supra note 11, at 144 ("The vast majority of
modern scholars agree that the central purpose of the Second Amendment was to assuage fears that the increased
powers vested in the newly created central government, including the authority to maintain a standing army, would
be used by ambitious tyrants to assert despotic control over the people.").
95. Levy, supra note 22, at 141.
96. See id.
97. See generally THE FEDERALIST NO. 51, at 347-348 (James Madison) (The Easton Press ed., 1979) ("Ambition
must be made to counteract ambition. . . . If men were angels, no government would be necessary. If angels were
to govern men, neither external nor internal controls on government would be necessary. In framing a government
which is to be administered by men over men, the great difficulty lies in this: you must first enable the government
to control the governed; and in the next place oblige it to control itself.").
98. THE FEDERALIST NO. 28, at 177 (Alexander Hamilton) (The Eaton Press ed., 1979) (emphasis added). Interestingly,
Hamilton described the right of the people to defend themselves against a tyrannical government as being "paramount
to all positive forms of government." Id. In other words, the Framers continued to view the right to
take up arms against an oppressive government as an inalienable right as it was described in the Declaration of
Independence. See THE DECLARATION OF INDEPENDENCE para. 2. (U.S. 1776).
99. See United States v. Emerson, 46 F. Supp. 2d 598, 604 (N.D. Tex. 1999) ("The framers thought
the personal right to bear arms to be a paramount right by which other rights could be protected.").
100. See generally THE FEDERALIST NO. 29, at 181 (Alexander Hamilton) (The Eaton Press ed., 1979) ("[S]tanding
armies are dangerous to liberty.").
101. See U.S. CONST. art. I, § 8, cl. 12.
102. See Emerson, 46 F. Supp. 2d at 604.
103. THE FEDERALIST NO. 29, supra note 100, at 181.
104. Id. at 184. The author fully recognizes that there have been some major changes in our national
system of common defense and in the technology of weapons since the founding of our country. For example, one major
change is that we no longer have state militias, which are made up of every able-bodied male citizen. However,
an extensive discussion of these changes is beyond the scope of this comment. The major purposes of this comment
are to point out the original meaning of the Second Amendment and to illustrate how the courts have misinterpreted
the purpose and substance of this right. It is the author's position that, given the weight the Framers placed
upon the right to keep and bear arms, they would still view an armed populace as an essential check against possible
tyranny even in the face of these changes.
The author recently attended Colloquium at the University of Idaho Law School, in which Justice Antonin Scalia
was the guest speaker. During this meeting, one student asked Justice Scalia what he would do if the Supreme Court
and the Federal Government ever went in a direction completely contrary to the original meaning of the Constitution.
Justice Scalia replied that he would resign from his post, take up his arms, and get behind the ramparts. Justice
Antonin Scalia, Colloquium at the University of Idaho Law School (Sept. 8, 2000). Scalia's interpretation of the
right to keep and bear arms accords with the original meaning and purpose of the Second Amendment.
105. See discussion supra Part II.D.
106. THE FEDERALIST No. 46, at 319 (James Madison) (The Eaton Press ed., 1979).
109. Id. at 320.
111. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
112. See also Harmer, supra note 5, at 92 ("[T]he Second Amendment implicitly authorizes
recourse to arms when less drastic means fail to retain the proper ends of government identified in the Declaration.
But the Amendment's greater value lies in the deterrent effect it would have. . . . Although it implicitly authorizes
rebellion-and explicitly provides the means of waging rebellion — the Amendment,
if observed, should make rebellion less likely by making it less likely to be necessary.").
113. THE FEDERALIST No. 46, supra note 106, at 320 (emphasis added).
114. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added).
115. THE FEDERALIST No. 46, supra note 106, at 320.
117. 1 ANNALS OF CONG. 431-40 (Joseph Gales ed., 1789) reprinted in KMIEC & PRESSER, supra
note 6, at 148.
118. Id. (emphasis added).
119. U.S. CONST. Preamble (emphasis in original). The fact that these ideas are present in the Preamble to the
Constitution is consistent with Madison's request that his amendment "be prefixed to the Constitution."
1 ANNALS OF CONG., supra note 116, at 148.
120. 1 ANNALS OF CONG., supra note 117, at 148. Madison's statement implies the right of the people to
use peaceful democratic methods to "reform or change" the government; however, it also clearly implies
the right of the people, as described in The Declaration of Independence, to alter or abolish a tyrannical government
which has become destructive of the ends for which it was instituted.THE DECLARATION OF INDEPENDENCE para. 2 (U.S.
121. Milton, supra note 14, at 76.
122. United States v. Emerson, 46 F. Supp. 2d 598, 606 (N.D. Tex. 1999).
123. Scott Bursor, Toward A Functional Framework for Interpreting the Second Amendment, 74 TEX. L. REV.
1125, 1134 (1996).
124. Emerson, 46 F. Supp. 2d at 604. See also Harmer, supra note 5, at 57 ("In the
Constitution's ingenious mechanism of checks and balances, the Second Amendment provides an extragovernmental check
on governmental power. The right of the people to keep and bear arms is the ultimate guarantor of all their other
constitutionally recognized rights.").
125. Note the similarities in structure of the auxiliary rights described by Blackstone's Commentaries and the
structure of the First and Second Amendments. After mentioning the right of Englishmen to apply to the courts of
law whenever the government violates rights, Blackstone described the other auxiliary rights which Englishmen are
entitled to exercise: "the right of petitioning the king and parliament for redress of grievances and . .
. the right of having and using arms for self-preservation and defense." 2 WILLIAM BLACKSTONE, COMMENTARIES
*144 (emphasis added). In comparison, the First Amendment's last clause states: "[T]he right of the people
peaceably to assemble, and to petition the government for redress of grievances." U.S. Const. amend. I (emphasis
added). Then immediately thereafter, like Blackstone's Commentaries, the Second Amendment sets forth the right
of the people to "keep and bear arms." U.S. CONST. amend. II. This similarity in structure suggests that
the Framers intended for the right to keep and bear arms to serve the same purpose it had in common law. See
discussion supra Part II.D.
126. 307 U.S. 174 (1939).
127. Id. at 175.
128. Id. at 176.
129. Id. at 177.
130. Id. at 178.
132. Id. (quoting U.S. Const. art. 1, § 8.).
133. Id. at 178.
134. Id. at 179-80.
135. Id. at 180-82.
136. See, e.g., United States v. Emerson, 46 F. Supp. 2d 598, 602 (N.D. Tex. 1999).
137. See Miller, 307 U.S. at 180-82.
138. See discussion supra Part II.A-D.
139. See THE ENGLISH BILL OF RIGHTS, supra note 18; 2 WILLIAM BLACKSTONE, COMMENTARIES *144.
140. See discussion supra Part II.D.
141. 521 U.S. 898, 938 n.1 (1997) (Thomas, J., concurring).
142. United States v. Emerson, 46 F. Supp. 2d 598, 608 (N.D. Tex. 1999).
143. Emerson, 46 F. Supp. 2d at 608.
144. 131 F.2d 916, 922 (1st Cir. 1942).
145. Id. at 919.
147. Id. at 921.
148. Id. at 922.
149. Id. at 923.
150. 530 F.2d 103, 106 (6th Cir. 1976).
151. Id. at 104.
152. Id. at 105. The defendant was arguing that, under the Second Amendment, the Federal Government has
no power to regulate the ownership of any weapons having military capability. Id. According to the common
law, defendant Warin's argument seems incorrect. If the Framers were simply constitutionalizing the common law
right to keep and bear arms, then they did not intend to create an absolute restriction on governmental power to
regulate the types of weapons that people could own because this would have been inconsistent with the right at
common law. For example, the English Bill of Rights states "[t]hat the subjects which are Protestants may
have arms for their defense suitable to their conditions and as allowed by law." The English Bill of
Rights, supra note 18, at 143 (emphasis added). Furthermore, Blackstone reiterated this point by stating
that the right to keep and bear arms consisted of the people "having arms for their defense, suitable to their
condition and degree, and such as are allowed by law." 2 WILLIAM BLACKSTONE, COMMENTARIES * 143-144 (emphasis
added). Blackstone recognized that in some circumstances the government could put "necessary restraints"
on this right. Id. at *144. According to Blackstone, "necessary restraints" are "[r]estraints in
themselves so gentle and moderate, as will appear upon further inquiry, that no man of sense or probity would wish
to see them slackened." Id. Clearly, some necessary governmental regulation on the types of weapons that people
can own has always been consistent with the right to keep and bear arms. But see United States v. Emerson,
46 F. Supp. 2d 598, 607 (N.D. Tex. 1999) ("The . . . American Second Amendment . . . expanded upon the English
Bill of Rights' protection; while English law allowed weapons 'suitable to a person's condition' [and] 'as allowed
by law,' the American right forbade any 'infringement' upon the right to the people to keep and bear arms.").
153. See Warin, 530 F.2d at 106 ("If the logical extension of the defendant's argument for the holding
of Miller was inconceivable in [Cases], it is completely irrational in this time of nuclear weapons.").
155. Id. (quoting Ohio Rev. Code § 2923.17). According to the court, "dangerous ordnance"
includes any automatic firearm. Id.
157. Id. at 106-107.
158. See Hickman v. Block, 81 F.3d 98, 101 (9th Cir. 1996) ("We follow our sister circuits in holding
that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private
citizen."); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) ("The courts have consistently 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."'). See also Hamilton v. Accu-tek,
935 F. Supp. 1307 (E.D.N.Y. 1996) to review a United States District Court case which had adopted this same reasoning.
159. Harmer, supra note 5, at 58-59.
160. Printz v. United States, 521 U.S. 898, 939 n.2 (1997) (Thomas, J., concurring).
161. Id. at 938.
162. Id. at 939 (quoting 3 J. Story, COMMENTARIES ON THE CONSTITUTION § 1890, at 746 (1833). Justice Story
was appointed as an associate justice to the Supreme Court by James Madison in 1811, and he served on the Court
until his death in 1845. KMIEC & PRESSER, supra note 6, at 763. Story's COMMENTARIES are considered
by many to be a classic exposition of original meaning of the Constitution. Id.
163. See 46 F. Supp. 2d 598, 604 (N.D. Tex. 1999) ("The framers thought the personal right to bear
arms to be a paramount right by which other rights could be protected.").
164. Id. at 599.
166. Id. The relevant portion of the statute states:
(g) It shall be unlawful for any person -
(8) who is subject to a court order that -
(A) was issued after a hearing of which such person received actual notice, and at which such person had an
opportunity to participate;
(B) restrains such a person from harassing, stalking, or threatening an intimate partner of such person, . .
. or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the
partner. . . and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate
partner, . . . or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such
intimate partner . . . that would reasonably be expected to cause bodily injury . . . .
18 U.S.C. § 922(g)(8).
167. Emerson, 46 F. Supp. 2d at 600.
169. Id. at 601.
170. See U.S. CONST. amend. II ("A well regulated Militia, being necessary to the security of a
free State . . . .").
171. See id. ("[T]he right of the people to keep and bear Arms, shall not be infringed.").
172. Emerson, 46 F. Supp. 2d at 601.
173. Id. Interestingly, the court asserted that "if the amendment truly meant what collective rights
advocates propose, then the text would read '[a] well regulated Militia, being necessary to the security of a free
State, the right of the States to keep and bear Arms shall not be infringed."' Id.
174. Id. (emphasis added) (citations omitted).
175. 494 U.S. 259, 265 (1990) (holding the phrase "the people" means the same thing in the Preamble
to the Constitution, and the First, Second, Fourth, Fifth, and Ninth Amendments).
176. Emerson, 46 F. Supp. 2d at 601.
177. See id. at 601-607.
178. As is evident from the footnotes, the author of this comment has relied often on United States v. Emerson
for support of his argument.
179. See id. at 602.
181. Id. at 603.
183. Id. at 603-607.
184. Id. at 606 (citations omitted).
185. Id. Furthermore, Madison's original plan to insert the right to keep and bear arms among the few
individual rights protected in the original Constitution illustrates that the Supreme Court was wrong when it concluded
that the militia clauses in Section 8 of Article 1 were the key to interpreting the Second Amendment's meaning.
United States v. Miller, 307 U.S. 174, 178 (1939).
186. Emerson, 46 F. Supp. 2d at 604.
187. Id. at 610.
188. Id. at 604.
189. See Bursor, supra note 123, at 1134.
190. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
191. Emerson, 46 F. Supp. 2d at 610.
192. 307 U.S. 174 (1939).
193. To see some recent federal court cases declining to follow United States v. Emerson, 46 F. Supp. 2d 598
(N.D. Tex. 1999) see United States v. Beavers, 206 F.3d 706 (6th Circ. 2000); Olympic Arms v. Magaw, 91 F. Supp.
2d 1016 (E.D. Mich. 2000); United States v. Henson, 55 F. Supp. 2d 528 (S.D.W.Va. 1999); United States v. Spruill,
61 F. Supp. 2d 587 (W.D. Tex. 1999).