BYU Law Review
Volume 1998 | Issue 4 Article 2
11-1-1998 The econdS Amendment in the Nineteenth Century David B. Kopel
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Recommended Citation David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. Rev. 1359 (1998). Available at: https://digitalcommons.law.byu.edu/lawreview/vol1998/iss4/2
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The Second Amendment in the Nineteenth Century
David B. Kopel*
I. INTRODUCTION ...... 1362
II. THE EARL Y GIANTS: TUCKER, RAWLE, AND STORY ...... 1370 A. S t. George T ucker: The Am erican Blackstone ...... 1370 1. T ucker’s backgrou nd ...... 1370 2. The central role of Tucker’s American Blackstone1371 3. Tucker on the right to arms in Bla ckst one .....1373 4. T ucker’s appen dix on th e Am erican Con stitution 1375 5. T ucker’s exposition of the S econd Am endm ent ..1377 B. Houston v. Moore ...... 1379 C. William R awle ...... 1384 D. Joseph S tory ...... 1388 1. The Second Amendment in Story’s Commentaries1389 2. The Second Amendment in Story’s Familiar Exposit ion ...... 1393 3. The federal militia powers in S tory’s Commentaries ...... 1396 E. Other Pre-1850 Sources ...... 1397 1. Henry St. George Tucker ...... 1397 2. B enjam in Oliv er ...... 1399 3. James Bayard ...... 1400 4. Francis Lieber ...... 1402 5. Elliot’s Debates ...... 1404 6. Webster’s Diction ary ...... 1404
* Adju nct Professor of Law, New York Uni ver sit y La w Sch ool, 19 98; R esea rch Director, Indepen dence Inst itut e, Golden, Colorado. J.D., 1985, University of Michigan; B.A. in Histor y 1982, Brown Un ivers ity. I w ould lik e to t ha nk Jim Win chest er, J .D., for outstanding research assistance. Valuable aid wa s also pr ovided by Pa ul Blackman, David Caplan , Clayton Cr amer , Bran non Denning, Robert Dowlut , Mark Fuller, Richard Gr iffith s, S te ph en Ha lbr ook, S cott Ha tt ru p, Ch ar les B. Ka te s, Don Kates, Jerry & Dolores Kopel, Nelson Lund, Joseph Olson, Dan iel Polsby, Glenn Harlan Reyn olds , Dou g Sp itt ler , Willi am Van Alst yne, E ugen e Volokh, and the Cincinnati La w Lib ra ry Associa tion .
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III. STATE CONSTITUTIONS AND CASE LAW ...... 1409 A. State Constitutions ...... 1409 B. S ta te Case Law ...... 1415 1. T ennessee ...... 1416 2. Arkansas ...... 1422 3. Georgia ...... 1425 4. Louisiana ...... 1427 5. North Carolina ...... 1428 6. Texas ...... 1429 7. Illinois ...... 1431 8. West Virginia ...... 1432 9. State case law sum mary ...... 1432
IV. ANTEBELLUM YEARS AND THE CIVIL WAR ...... 1433 A. Dr ed Scot t ...... 1433 B. The Hum an Rights Advocates ...... 1435 1. L ysan der S poon er ...... 1436 2. Joel Tiffany ...... 1440 C. Bloody Kansas ...... 1441 D. The Civil War ...... 1444
V. RECONSTRUCTION AND LABOR UNREST ...... 1447 A. Congress, Civil Rights, and the Fourteenth Amendment ...... 1447 1. T he Freedm en’s Bureau ...... 1447 2. South ern representation in Congress ...... 1449 3. Civil Rights Bill ...... 1450 4. Anti-KKK Act ...... 1451 5. Fourteenth Am endm ent ...... 1451 6. Civil Rights Act of 1875 ...... 1453 7. S um m ary of Con gres sional policy ...... 1453 B. Cruishank ...... 1454 C. Presser ...... 1459
VI. COMMENTARY FROM THE LATE 19TH CENTU RY: COOLEY AND OTHERS ...... 1461 A. Thomas Cooley ...... 1461 1. A Treatise on Constitutional Limitations ...... 1462 2. The General Principles of Constitut ional Law ..1464 B. The Lesser Com m enta tors ...... 1468 1. Joel Tiffany ...... 1469 D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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2. Timothy Farrar ...... 1470 3. G eorge W . Pa sch al ...... 1472 4. J oel B ishop ...... 1474 5. J ohn N orton Pom eroy ...... 1476 6. O liver Wen dell Holm es, J r., an d J am es Kent ...1479 7. Editions of Bla ckst one ...... 1482 8. T heoph ilus Parson s ...... 1483 9. A foreigner’s vantage: von Holst ...... 1484 10. John Hare ...... 1485 11. George Ticknor Curtis ...... 1486 12. John C. Ordronaux ...... 1488 13. Sam uel Freeman Miller and J .C. Bancroft Davis1490 14. H enry Cam pbell Black ...... 1493 15. George S. Boutwell ...... 1494 16. J am es S chouler ...... 1496 17. Home schooling ...... 1498 18. Civics manuals for youth ...... 1498 19. John Randolph Tucker ...... 1501 C. L aw Review Ar ticles ...... 1503 D. Su mmary of the Late Nineteenth Century Comm entators ...... 1505
VII. FIN-DE-S IÈCLE AND BEYOND ...... 1506 A. Th e Supreme Court ...... 1506 1. Miller v. Texas ...... 1506 2. Robert son v. Baldwin ...... 1509 B. T he Collective Righ t Establish es a Footing: Salina v. Blaksley ...... 1510 C. Late Twentieth Century Commentators ...... 1512 1. Some thoughts about David Williams ...... 1512 2. S ome thoughts about Carl Bogus ...... 1515 D. Firearms Policy for the Twenty-first Century ...... 1530 1. W ho is protected by th e S econd Am endm ent? ...1530 2. Does the Second Amendment limit the states? ..1530 3. What k ind of “arms”? ...... 1531 4. Can th e carryin g of w eap ons be controlled? ....1535 5. R epea ling or ign oring the S econd Am endm ent ..1536 6. T he First A m endm ent ...... 1538 7. The illegality of most federal gun laws ...... 1541
VIII. CONCLUSION ...... 1544 D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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I. INTRODUCTION Despite the animosity that sometimes divides advocates and opponents of gun control, they share one important characteris- tic: almost unanimously, they are constitutional originalists. Persons who believe that the Second Amendment guarantees a righ t of individual Americans to own and carry guns claim that the origina l intent of the Second Amendment was for an indi- vidual right. Con ver sely, person s w ho believe t hat the Secon d Amendment only guarantees the right of state governments to have Nat ional Guard (militia) units argue that the original in ten t su pp orts t heir own pos it ion . Bot h sides of the debate cite ma ter ial from the period when the Constitution and th e Bill of Rights were ratified and de- bated. Both sides also cite materials from E nglish lega l history. But su rpr isin gly, n eit her side has p aid sign ifica nt attention to the interpretive community which first applied the Second Amendment: the United States in the nin eteenth cent ur y. During that century, the Second Amendment’s right to keep and bear a rm s was discussed in ma ny legal tr eat ises, in Congressional deba tes, in six Suprem e Court cases, in numerous stat e court cases, an d in other legal materials. Yet, except for two of the Supreme Court cases, the history of the Second Amendment in the n inet eenth centur y has been only lightly touched by legal scholar ship. In modern legal scholarsh ip, the “St anda rd Model” of th e Second Amendment maintains that individual Americans have a right to own guns.1
1. See SENATE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE JUDICIARY, 97TH CONG., 2D SESS., THE RIGHT TO KEEP AND BEAR ARMS (Comm. P rin t 1982) [hereinafter S ENATE SUBCOMM. ON THE CONST.]; Robert J. Cott rol, In trod uct ion to 1 GUN CONTROL AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE SECOND AMENDMENT at ix (Robert J . Cottrol ed., 199 3); Robe rt J . Cot tr ol & Ra ym ond T. Diam ond, Pu bli c S afet y an d t he R ight to Bear Arm s, in THE BILL OF RIGHTS IN MODERN AMERICA: AFTER 200 YEARS 72 (David J. Bodenhamer & James W. Ely, J r., eds., 1993); Robert J. Cott rol, Second Amendment , in THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 763 (Ker mi t L . H al l et al . ed s., 199 2); CLAYTON CRAMER, FOR THE DEFENSE OF THEMSELVES AND THE STATE at xv (199 4); 4 E NCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1639-40 (Leon ar d W. Levy et a l. eds., 1986 ); STEPHEN HALBROOK, A RIGHT TO BEAR ARMS: STATE AND FEDERAL BILLS OF RIGHTS AND CONSTITUTIONAL GUARANTEES (1989) [hereinafter HALBROOK, RIGHT TO BEAR ARMS]; STEPHEN P. HALBROOK, THAT EVER Y MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984) [hereinafter HALBROOK, THAT EVER Y MAN BE ARMED]; D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Edward F. Le ddy, Gu ns an d G un Con rtol , in READER’S COMPANION TO AME RICAN HISTORY 477-78 (Eric Foner & John A. Garraty eds., 199 1); LE ONARD W. LEVY, ORIGI NAL INTENT AND THE FRAMERS’ CONSTITUTION 341 (1 988); J OYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (199 4); Akhil Reed Amar , The B ill of R igh ts an d t he F our teen th Am end m ent , 101 YALE L.J . 1193 (1992) [her eina fter Amar , Fou rt eent h A m end m en t]; Akhil Reed Amar , Th e Bil l of Rights as a Con sti tu tion , 100 YALE L.J . 1131, 1164 (1991); Ra nd y E. Ba rn et t & Don B. Kat es, Und er Fire: The N ew Con sen su s on th e S econd Am end m ent , 45 EMO RY L.J . 1139, 1141 (1996 ); Bern ar d J . Borde net , The Right to Possess Arms: The Intent of the Framers of th e S econd Am end m ent , 21 U. WEST L.A. L. REV. 1, 28 (1990); David I. Caplan, The R igh t of t he I nd ivi du al t o Bea r A rm s: A R ecent J ud icia l T ren d, 1982 DET. C.L. REV. 789, 790; Da vid I. Ca plan , The Right to Hav e Arms an d Use Deadly Force Under the Second and Third Amendments, 2.1 J. ON FIREARMS & PUB. POL’Y 165 (1990); Robert J. Cott rol & Ra ymon d T. Dia mon d, The Second Amendment: Toward an Afro-Americanist Recon sid erat ion , 80 GEO. L.J . 309 (1 991); B ra nn on P . Denn ing, Can th e S im ple Cite Be Tr us ted ?: Low er Cou rt I nt erpr etat ion s of United Stat es v. Miller and the Second Amendment, 26 CUMB. L. REV. 961 (1995-96) [hereinafter Denn ing, Sim ple Cite]; Bran non P. Denn ing, Gun Shy: The Second Amendment as an “Underenforced Constitutiona l N orm”, 21 HARV. J.L. & PUB. POL’Y 719 (1998) [her eina fter Dennin g, Gun Shy]; Anthon y J . Dennis, Clearing the Smoke From th e Ri ght t o Bear Arms and the Second Amendment, 29 AKRON L. REV. 57 (199 5); Robert Dowlut , Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (1989) [herein after Dowlut , Guarantees to Arms]; Robert Dowlut , The Current Relevancy of Keeping and Bearing Arms, 15 U. BALT. L.F. 32 (198 4); Robert Dowlut , The R igh t t o Ar m s: Does t he C ons tit ut ion or t he P red ilect ion of J ud ges Reign ?, 36 OKLA. L. REV. 65 (1983) [her eina fter Dowlut , The Right to Arm s]; Robert Dowlut, Th e Right to Keep and B ear Arms: A Righ t to Self-Defense Against Crimin als and Despots, 8 STAN . L. & POL’Y RE V. 25 (1997); Richar d E. Ga rdin er, To Preserve Liberty—A Look at the Right to Keep and Bear Arms, 10 N. KY. L. REV. 63 (1 982 ); Alan M. Gottlieb, Gun Ow nership: A Constitutional Right, 10 N. KY. L. REV. 113 (198 2); Stephen P. Ha lbrook, Con gress In terp rets th e S econd Am end m ent : Declara tion s by a Co-Equal Branch on the Ind ividua l Right to Keep and B ear Arms, 62 TENN. L. REV. 597 (1995); Ste phe n P . Ha lbrook, En croach m ent s of t he C row n on th e Li bert y of the S ub ject: Pre-R evolu tion ary Origin s of t he S econd Amendment, 15 U. DAYTON L. REV. 91 (1989); Ste phe n P . Halb rook , Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J . 341 (1995) [herein after Ha lbrook, Personal Security]; Stephen P. H albr ook, S econd -Cla ss C iti zen sh ip a nd th e S econd Am end m ent in the District of Columbia, 5 GEO. MASON U. CIV. RTS. L.J . 105 (1995); Stephen P. Halbrook, The Ju rispru den ce of th e S econd an d F our teen th Am end m ent s, 4 GEO. MASON L. REV. 1 (19 81); Stephen P . Ha lbrook, The R igh t of t he P eople or th e Pow er of th e S ta te: Bea rin g Ar m s, A rm in g M ili tia s, a nd th e S econd Am end m ent , 26 VAL. U. L. REV. 131 (1991); Step hen P. H albr ook, What the Fram ers Intended: A Lin guistic Analysis of the Right to “Bear Arms”, 49 LAW & CONTEMP. PROBS. 151 (1986) [hereinafter Ha lbrook, What the Framers Intended]; David G. H ar dy, Arm ed Citizens, Cit izen Ar m ies: T owa rd a J ur isp ru den ce of th e S econd Amendment, 9 HARV. J.L. & PUB. POL’Y 559 (1986); David G. Ha rdy, The Second Amendment and the Historiography of the Bill of Rights, 4 J.L. & POL. 1 (1987) [her eina fter Ha rdy, S econd Amend ment]; Nichola s J . John son, Pri nci ples an d P ass ion s: Th e In ters ection of Abor tion and Gun Rights, 50 RUTGERS L. REV. 97 (19 97); Don B. Kat es, J r., Handgun Prohibiti on and the O rig in al M ean in g of t he S econd Am end m ent , 82 MICH. L. REV. 204 (1983) [her eina fter Kat es, Ha nd gun P roh ibit ion ]; Don B. Kates, J r., Th e S econd D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Amendm ent: A Dialogue, 49 LAW & CONTEMP. PROBS. 143 (198 6); Don Ka tes , The S econd Am end m ent an d t he I deology of S elf-Pr otecti on, 9 CONST. COMMENTARY 87 (1992) [hereina fter Kates, S elf-Pr otecti on]; David B. Kopel & Christopher C. Little, Comm unitarian s, Neorepublicans, and Guns: Assessing the Case for Firearms Proh ibit ion , 56 MD. L. REV. 438 (1997); Steph an ie A. Levin, Grassroots Voices: Local Act ion an d N at ion al M ili ta ry P olicy , 40 BUFF. L. REV. 321, 346-47 (19 92); Sa nfor d Levinson, Th e Embarrassing S econd Amendment, 99 YALE L.J . 637 (1 989); N els on Lund, The P ast an d F ut ur e of the Individual’s Right to Arms, 31 GA. L. REV. 1 (1996) [hereinafter Lun d, Past and Fu ture]; Nelson L un d, The Second Amendment, Political Liberty, an d t he R igh t t o S elf-Preservation , 39 ALA. L. REV. 103 (1987); Joyce Lee Malcolm, T h e R ig h t of th e P eop le to K eep an d B ea r A rm s: T he Common Law Tr ad iti on, 10 HASTINGS CONST. L.Q. 285 (1983); Thoma s B. McAffee & Michael J . Quinlan, Br in gin g Forw ard th e Ri ght t o Keep a nd Bea r Arm s: Do T ext, Hi stor y, or Preced ent Stand in the Way?, 75 N.C. L. REV. 781 (1997); Thoma s M. Moncure, J r., The Second Amendment Ain’t About Hunting, 34 HOW. L.J . 589 (1991); Thomas M. Mon cure, Jr., Who is the Militia— Th e Virginia Ratification Convent ion and t he Right to Bear Arms, 19 LINCOLN L. REV. 1 (1990); Jam es Gray Pope, Republican Moments: The R ole of D irect Popular Pow er in th e Am erica n C ons tit ut ion al O rd er, 139 U. PA. L. REV. 287 (1990); L.A. Powe, J r., Gu ns , Wor ds , an d C ons tit ut ion al I nt erpr etat ion , 38 WM. & MARY L. REV. 1311 (1997); Micha el J . Quin lan , Is There a Neutral J us tif icat ion for R efu sin g to I m plem ent th e S econd Am end m ent or is th e S up rem e Court Ju st “Gun Shy”?, 22 CAP. U. L. REV. 641 (1993); Glenn Ha rla n Reynolds, A Critical Gu id e to t he S econd Am end m ent , 62 TENN. L. REV. 461 (1995); Glenn H ar lan Reynolds, Th e Right to Keep and B ear Arms U nder th e Tennessee Constitution: A Case Study in Civ ic Repub lican T hough t, 61 TENN. L. REV. 647 (1994) (discuss ing the Secon d Amendment as r elat ed to t he Te nn essee Const itut ion) [hereinafter Reynolds, Tennessee Con sti tu tion ]; Elain e Scar ry, War and the Social Contract: Nuclear Policy, Distribution, and th e Right to Bear Arms, 139 U. PA. L. REV. 1257 (1991); J. N eil Sch ulman, The Text of th e S econd Am end m ent , 4 J. ON FIREARMS & PUB. POL’Y 159 (199 2); Robert E. Sh alh ope, Th e Armed Citizen in the Ea rly Republic, 49 LAW & CONTEMP. PROBS. 125 (1986); Rober t E . Sha lhope, The Ideological Origins of the S econd Amendment, 69 J. AM. HIST. 599 (1982); William Van Alst yne, Th e S econd Amendment and t he Personal Right to Arms, 43 DUKE L.J . 1236 (1994); David E. Vande rcoy, The H ist ory of th e S econd Am end m ent , 28 VAL. U. L. REV. 1007 (199 4); Eugene Volokh, The Amazing Vanishing Second Amendment, 73 N.Y.U. L. REV. 831 (199 8); Eu gene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (199 8); Scott Bursor, Note, Towa rd a Fu nct ion al F ram ewor k f or In ter pret ing the S econd Amendment, 74 TEX. L. REV. 1125 (1996); Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 YALE L.J . 995 (1995) (reviewing J OYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (199 4)); Bra nn on P . Dennin g, Profession al Discourse, The Second Amendment, and the “Talking Head Constitutionalism” Counterrevolution: A Review Essay, 21 S. ILL. U. L.J . 227 (1997) (reviewing DENNIS A. H E NIG AN ET AL ., GUNS AND THE CONSTITUTION: THE MYTH OF SECOND AMENDME NT PROTECTION FOR FIREARMS IN AMERICA (1996)); T. Markus Fu nk , Is t he T ru e Mea ni ng of th e S econd Amend m ent R eall y S uch a R id dl e? Tracing the H istorical “Origins of an An glo-American Righ t”, 39 HOW. L.J . 411 (1995) (reviewing JOYCE LEE MALCOM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO- AME RICAN RIGHT (1994)); David B. Kopel, It Isn’t About Duck Hun ting: The British Origins of the Right to Arms, 93 MICH. L. REV. 1333 (1995) (reviewing J OYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (199 4)); F. Sm ith Fu ssn er, Book Review, 3 CONST. COM ME NT ARY 582 (1986) (reviewin g STEPHEN P. HALBROOK, THAT EVER Y MAN BE ARMED: THE EVOLUTION OF A D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Standard Modelers d iffer among t hem selves over the t ypes of guns which ma y be kept, the breadth of purposes for which the righ t to keep a gun is protected, and th e per missible restrictions on the “bearing” of arms. Competin g with the Standard Model in the late twentieth century ar e what th is art icle terms th e “anti-individu al” theories. The na me is appropriate because these theories are linked by t heir common attempt to show that an individual Amer ica n citizen has no right to own a gun. Th e leading ant i- individual theorist is Handgun Control’s attorney Dennis Henigan, who argues that the Second Amendment protects the state governments’ right to be free from federal interference with their militias.2 According t o this view, t he Secon d Amendment limits the Congressional militia powers crea ted by Article I of the Constitution, although Henigan and other
CONS TITU TION AL RIGHT (1984 )); Joy ce Le e Ma lcolm, Book Review, 54 GEO. WASH. L. REV. 452 (198 6) (reviewing S TEPHEN P. HALBROOK, THAT EVER Y MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984 )); cf. Nichola s J . John son, Beyond the S econd Am end m ent : An In di vid ua l R igh t t o Ar m s V iew ed t hrough the Ninth Amendment, 24 RUTGERS L.J . 1 (1992) (arguing that the Ninth Amendment supports an in div idu al ri gh t t o ar ms ). 2. See DENNIS A. H EN IGAN ET AL ., GUNS AND THE CONSTITUTION: THE MYTH OF SECOND AMENDME NT PROTECTION FOR FIREARMS IN AMERICA (1995); Keith A. Ehrman & Dennis A. Hen igan , The S econd Am end m ent in th e Twen tiet h C ent ur y: Ha ve Y ou S een Your Militia Lately?, 15 U. DAYTON L. REV. 5, 3 0 (19 89) (“ The ‘right to bear arms’ concerned t he ab ilit y of th e st at es t o ma int ain an effect ive m ilit ia, not an individual righ t t o keep weapon s for an y pur pose wh at soever.”); Dennis A. H eniga n, Arm s, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107 (1991) [hereinafter Henigan, Arm s, An arch y]. Henigan’s status as premier wr iter of the anti-individual sch ool is based on the fact that he has authored two full length anti-individualist law review articles in t he las t d eca de, an d h e is by fa r t he mos t a ctiv e sp oke sm an for the view th at th e individua l ri ght t o keep an d bea r a rm s is a frau d. S ee sources cited infra not e 12 ; see also ROBERT J. SPITZER, THE POLITICS OF GUN CONTROL 42-43 (199 5); George Anastaplo, Amendments to the Constitution of the United S tates: A Comm entary, 23 LOY. U. CHI. L.J . 631, 687-93 (1992 ); Michael A. Belle siles, The Origins of Gun Culture in the United States, 1760-1865, 83 J. AM. HIST. 425 (199 6); Carl T. Bogus , Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993); Carl T. Bogus, The Hi dd en H ist ory of th e S econd Am end m ent , 31 U.C. DAVIS L. REV. 309 (1998) [hereinafter Bogus, Hidd en History]; Lawre nce Delbert Cr ess, An Arm ed Comm unity: The Origins and Meanin g of the Right to Bear Arms, 71 J. AM. HIST. 22 (19 84); Samu el Field s, Gu ns , Crim e an d t he N eglig ent Gu n O wn er, 10 N. KY. L. REV. 141 (198 2); Andr ew D. H erz, Gun Craz y: Constitutional False Consciousness and Derelict ion of Dialogic Responsibility, 75 B.U. L. REV. 57 (19 95); Mich ae l J . Pa lm iott o, The Misconception of the American Citizen’s Right to Keep and Bear Arms, 4 J. ON FIRE ARMS & PUB. POL’Y 85 (1992); War ren Spa nn au s, S tat e Firearm s R egul ati on and the Second Amendment, 6 HAMLINE L. REV. 383 (198 3). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1366 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 states’ rights supporters have not specified what those lim it ation s are.3 But if st ates’ righ ts t heor ists a re u nclea r abou t what the Second Amendment does, t hey a re emph atic a bou t what it does not do: “since privately-owned weapons are no longer used to arm citizen militias, as th ey were in colonial times, the regulation of such arms should face no Second Amendment barrier.”4 Another major anti-individual theory might be called the “nihilist Second Amendment.” Offered by Gar ry Wills, t his theory argues that the Second Amendment “had no real meaning.”5 According to Wills, only “wacky scholar s” and th eir dupes believe that the Secon d Am en dm en t affir ms a righ t of individua ls to own firea rm s for pr otection again st tyr an ny.6 Evidently, J ames Ma dison played a clever trick on the entire United States and wrote an Amendment which amounts to nothing at all. In th e per iod between Madison and Wills, however, no one else seems to have discovered this shrewd ploy.7 The term “collective rights” is som et im es used in connect ion with th ese a nt i-individu al interpretations of the Second Amendment to indicat e a righ t that belongs to the people collectively (like “collective property” under a Communist government), rather than to any individual, and therefore belongs to the government. Some “collective rights” proponents adhere to a states’ r ights version Second Amen dment , while other s p ropou nd t he n ih ilist app roach. David Williams offers a third variant on the “anti- individua l” approach in a series of innovative articles. First, he
3. For an an alysis of th e logical implicat ions of a states’ rights Second Amendment theory as propoun ded by Henigan, see Glenn Har lan Reynolds & Don B. Kates, The Second Amendment an d S ta tes ’ Righ ts : A T hou gh t E xper im ent , 36 WM. & MARY L. REV. 1737 (1995). If the Second Am endmen t did guar ant ee stat e control over the National Guard, then it would be ha rd to d en y th e u ncon st itu tion ali ty of President Eisenhower’s federalization of the Arkansas National Guard—over the vehement pr ote st of th e Gov er nor —du ri ng th e Li tt le R ock school integra tion cr isis in 1957. See Powe, supra note 1, at 1385-86. 4. Denn is Henigan, The Right t o Be A rm ed: A C ons tit ut ion al I llu sion , S.F. BARRISTER, Dec. 1989, available online at ¶ 19 (visited Nov. 30, 1998)
1359] SECOND AMENDME NT IN THE 19TH CENTURY1367 acknowledges that the Second Amendment was intended to preser ve th e ability of all “the people” to have guns a nd t o kn ow how to use them to maintain order and resist tyranny.8 But, continues Williams, the Second Amendment is oper at ive only as lon g as the American people are like “the people” contemplated in the r epublican theor y of the Secon d Am en dm en t: vir tuous, unified, homogen ous, im bu ed wit h a sh ared vision of th e common good, and tra ined by their sta te governm ent s in th e use of firearms. Since the American people no longer fit the description of “the people” implicit in the Second Amendment, the argument goes, the Second Am en dm en t is obsolet e a nd of no legal effe ct. Because Willia ms’s theor y is an argu men t abou t changed circumstances in the twentieth century, analysis of nineteenth centur y sources cannot resolve all th e issu es he raises. But the nineteenth century does provide a good test case for Williams’s theory of the Second Amendment. During the period before and after the Civil War, Americans were more disunited, more distrustful of each other, and more thoroughly polarized in their competin g vis ion s of the com mon good than at any other time in American history. It is useful to examine what became of t he S econ d Am endment during these decades when the people of t he U nit ed St ates fell far awa y fr om Williams’s ideal. The va riou s fa ction s in the modern Second Amendment debate shar e an other t ra it: they in sist th at th eir own int erpret at ion has a lways been the com mon underst anding of the Second Amen dment. Th e contra ry viewpoint, each insists, is a modern fiction, invented by the other faction, and having no support in American lega l history. For example, the late Warren Bur ger, after retiring from the Supreme Court, participated in a n a dver tising campaign for Han dgun Contr ol. The former J ust ice informed Americans that the notion of the Second Amendment as an individual right is a “fr aud” perpetrated by t he N ation al Rifle As sociation .9 The lat e Erwin
8. S ee David C. William s, Civic Republicanism and t he Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J . 551 (1991) [her eina fter William s, Civic Republicanism]; David C. William s, The M ili tia Mov em ent an d S econd Am end m ent Revolution: Conjuring wit h th e People, 81 CORNELL L. REV. 879 (1996) [hereinafter Williams, Militia Movement]; David C. Willia ms, Th e Un ita ry S econd Amendment, 73 N.Y.U. L. REV. 822 (199 8). 9. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Griswold, former Solicit or Gener al of the United Sta tes, former Dean of Harvard Law School, a nd m em ber of the Board of Handgun Control, wrote “that the Second Amendment poses no barrier to strong gun laws is perhaps the most well-settled proposition in American constitutional law.”10 Similar ly, th e Coa lit ion to St op Gun Violence (t he n ation ’s second largest antigun group, next to Handgun Control) informs us that the notion of the Secon d Amendment as a ba rrier to gu n pr ohibition is a “myth.”11 The Coalition ’s educational arm recommends a recent law review article which, instead of the word “myth,” uses words such as “deception,” “constitu tional false consciousness,” “fake,” “intentional deception,” “fictional,” “bogus,” and “constitut ional charade.” The art icle further accuses law professors holding contrary views of deliberate fraud.12
[O]n e of the frauds—and I us e t ha t t er ms [sic] a dvisedly—on t he Ame ri can people, ha s be en th e ca mp aig n t o misle ad th e pu blic a bou t t he Secon d Amendment. The Second Amendmen t doesn’t gu ar an tee t he r ight to ha ve firearms at all. . . . [The P eople of this coun tr y] want ed th e Bill of Rights to mak e sur e tha t th ere was no standing a rmy in this count ry, but that there would be state arm ies. Every sta te during th e revolution had its own ar my. Ther e was no na tiona l ar my. Warren Bur ger, Press Conference Concerning Introduction of the Public Health and Safety Act of 1992, FED. NEWS SERVICE, Ju ne 26, 1992, available in LEXIS, N exis Libra ry, ARCN WS F ile (su pp orti ng pr opos al to confisca te ha nd gu ns ). The United States, under the Con stit ution, has always had a standing ar my. If the Second Ame ndm ent were mea nt to pr ohibit s ta ndin g ar mies, it is impossible to explain why the very same Congress t hat approved the Second Amendm ent also voted to crea te a sta ndin g ar my. Compare Military Establishmen t Act, H .R. 50a, with Military Establishment Act, H.R. 12 6a, both in 5 DOCUMENTARY HISTORY OF THE FIRST FED ERAL CONGRESS 1789-1791, at 127 2-14 32 (L in da Gr an t D e P au w et a l. e ds ., 1972 ). 10. Er win N. Gr iswold, Phantom Second Am endm ent ‘Rights’, WASH. POST, Nov. 4, 1990 , at C7; see also Hen igan, supra note 4 (“That the 2nd Amendment poses no threat to laws affecting t he pr ivate possess ion of firearms m ay well be t he m ost well- settled proposit ion in const itu tiona l law.”). Considerin g how well-est ablish ed cert ain other pr inci ple s of Am er ican law ar e (su ch a s ju dicia l re view , or t he pr ohib iti on on pr ior res tr ain ts), Gr iswold a nd H eniga n m ak e a ve ry st ron g claim . 11. Michael K. Beard & Kr istin M. Ran d, Th e Handgun B attle, BILL OF RTS. J., Dec. 1987, at 13, 13. 12. 9 FIREARMS LITIG. REP. (Fire ar ms Litig. Cle ar ingh ouse), Su mm er 1995, at 4 (recomm end ing And rew D. Herz, Gun Crazy: Constitutional False Consciousness and Dereli ction of Dialogic Responsibility, 75 B .U. L. Re v. 57 (1995 )); see also CENTER TO PREVENT HANDGUN VIOLENCE, THE SECOND AMENDMENT: FRAUD AND FACT (undated pamphlet) (on file with a ut hor) (“Fra ud[:] . . . each citizen of a state retains a fundamental ‘right t o keep an d bea r a rm s.’ Fact[:] . . . the Second Amendmen t does not gua ra nt ee th e righ t of individu als t o own an d to car ry a rm s.”); Dennis Hen igan, Exploding the NRA’s Constitutional Myth, LEG AL TIMES, Apr. 22, 1991, at 22, 22 D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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If Chief Justice Burger and the rest are right, then we should expect that legal materials of the nineteenth century would clearly support their claim. In the period before the founding of the Nat ional Rifle Association in 1871, we should not exp ect to find assertions that the Second Amendment is an individual r ight . This article lets the nineteenth centur y legal commun ity speak for itself by dealing with the treatises and cases—what Duncan Kennedy calls “the mandarin m aterials”13—of th e nineteenth century, as well a s Congr essional a nd p olit ica l debates. Newspaper articles, novels, and other mass entertainment materials ar e not discussed. There is a great deal to learn from what the nineteenth century had to say about the Second Amendment. Most importa ntly, we can resolve whether the Second Amendment has historically been considered to pr otect an individual r ight . Additionally, an examination of the Second Amendment in the nineteenth century provides useful gu idance about what types of gun control are constitutionally permissible. Part II of this article analyzes the Second Amendment scholar ship of the three great constitutional treatises of early nineteenth century—St. George Tucker’s American Blackstone, William Rawle’s A View of the Constitution of the United States of Am erica, and Joseph Story’s Commentaries on the Con stitution of the United States—as well as some lesser commentators from the 1830s, 1840s, and 1850s. Part II also includes a study of Justice Story’s dicta about the Second Amendment in the 1820 case Houston v. Moore. Part III addresses nineteenth century state constitutions and state case law regarding the right to arms. These constitutional texts and their judicial interpretation offer valuable insights into the meaning of the Second Amendm ent.
(arguing that an individual right to arm s is a “constitutional myth, an illusion created by ma ss ad ver ti sin g t o ad va nce a p olit ica l object ive ,” th at th e N RA should “no longer pretend th at th er e is som e fu nd am en ta l cons tit ut ional liberty at stake,” and that “[i]t’s time to stop th e Second Amendment nonsense”) [hereinafter Henigan, Constitutional Myth]; Denn is He niga n, Faulty Interpretation , WASH. TIMES, Ja n. 11, 1998, at B4 (“Th e con st it ut ion al de ba te is p hony .”). 13. See generally DUNCAN KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM (198 3). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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The Civil War is the subject of Pa rt IV, which discusses Dred S cott, th e writin gs of anti-sla very hu man rights activists, and th e confiscat ions of ar ms before a nd durin g th e War. P ar t V deals wit h the a ftermath of the Civil War, including Con gr essional debates about the infringements by unreconstructed Sout hern stat es of th e freedmen’s right to arms; the Fourteenth Amendment; and the Supreme Court’s Cruikshank decision . P art V concludes w it h a discu ss ion of th e growth in labor unrest, restrictive gun laws aimed at labor agitators, and the Supreme Court’s Presser decision . Scholar ly commentators of the lat er nin eteenth cent ur y ar e the subject of Pa rt VI. Thoma s Cooley is the gian t of this period, but there were also more than a dozen other constitutional treatises from the period, as well as the first law review articles on the right to arms. Part VII brings the article to the fin-de-siècle, by looking a t two Su pr em e Court case s m en tion in g t he S econ d Am endment in dicta; it also peeks a head into the early twentieth century at the most important Secon d Amendment “states’ right” ruling—the Kansas case of S alin a v . Blaksley. Part VII also examines the implications that the nineteenth century records have for moder n fir ea rms p olicy, a nd for the schola rsh ip of David Williams and Carl Bogus. The Con clu sion discu ss es wh ich modes of t he Secon d Amendment an alysis are plau sible and which modes are implau sible in light of the nineteenth century’s Second Amendment interpretation.
II. THE EARL Y GIANTS: TUCKER, RAWLE, AND STORY Part II of this article examines the treatment of the Second Amendment in the fir st thir d of t he nineteenth century by the three major legal commentators of the era: St. George Tucker, William Rawle, and J oseph Story. This Part also discusses the Supreme Court’s first Second Amen dment case, t he vir tu ally unknown 1820 Houston v. Moore. The Part concludes with discussion of other commentators from the 1830s through the 1850s. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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A. S t. George T ucker: The Am erican Blackstone D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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The first scholar ly analysis of the Second Amendmen t is found in St . George Tu cker’s American edition of Blackstone’s Com m enta ries, published in 1803.14
1. Tucker’s backgrou nd The law practice of t his young Virginia attorney was interrupted by the American Revolution. St. George Tucker threw himself into the cause enthusiastically, heading up a gun-running operation in which his four small ships sent indigo to the West Indies and Bermuda in exchange for firearms for the Patriots.15 Acclaimed as “one of the great war heroes of Virginia,” Tucker was chosen as h ea d of Vir gin ia ’s dele ga tion to the Annapolis Convention (the precursor to the P hiladelph ia Con ven tion).16 Th er e, h e ser ved on a commission with James Madison to meet with state officials and determine to what degree the federal government should have the authority to create uniform rules to facilitate interstate commerce.17 “[O]ne of the most eminent of Virginia la wyers,”18 Tucker taught law at William and Mary from 1790 until 1804, when he was appointed a judge of Vir gin ia ’s High Cou rt of Appeals.19 He was also “perhaps t he m ost a rdent advocate of ema ncipation in Virginia in th e 1790s,”20 calling it h is “dear est wish .”21
14. WILLI AM BLACKSTONE, COMMENTARIES (St. George Tucker ed., Lawbook Exchange, Ltd . 1996) (1803). 15. See Hon . Armiste ad M. Dobie, Fed eral Dis tr ict J ud ges i n V irg in ia B efore t he Civil War, 12 F. R.D . 45 1, 4 59 (1 952 ); WILLIAM S. PRINCE, THE POEMS OF HEN RY ST. GEORGE TUCKER OF WILLIAMSBURG, VIRGINIA 1752-1827, at 1 (1977). Like many educated me n of hi s d ay , Tu cke r fr equently wr ote poet ry. Alth ough his poem s a re not par ticula rly memorable, neither is most American poetry from t he E ar ly Repu blic. See id. at x. 16. Don Riddick, The Second Most Powerful Pen in E arly Vi rginia: St. George Tucker, 4 J. S. LEG. HIST. 71, 71 (1 997 ). 17. See JAMES MADISON, JOURNAL OF THE FEDERAL CONVENTION 35-36 (E.H . Scot t ed ., Alb er t, Scot t & Co. 1 893 ) (184 0). 18. LAWRENCE M. FRIE DMAN , A HISTORY OF AMERICAN LAW 193 (1973). Tucker was also known to be “as kindhearted a ma n as ever live d.” HENRY ADAMS, JOHN RANDOLPH 166 (M.E. Shar pe 1996) (188 2). 19. See PRINCE, supra note 15, a t 5; P au l D. Car rin gton , The Tw enty-First Wis dom , 52 WASH. & LEE L. REV. 333 , 33 3 n .1 (1 995 ); Dowlut, The Right to Arms, supra note 1, at 83-84; Ste phe n P . Ha lbrook, Rationing Firearms Purchases and the Righ t to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and the Un ited S ta tes , 96 W. VA. L. REV. 1, 2 0 (19 93). 20. Carrington, supra note 19, at 336. 21. RICHARD B. DAVIS, INTELLECTUAL LIFE IN JEFFE RSON’S VIRGI NIA 1790-1843, at 413 (1964), cited in Car rin gton , supra note 19, at 336 n.18. H is abolition proposal D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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President Madison app oin ted Tu cker to the federal be nch for Virginia in 1813, where he served until his death in 1827.22
2. The central role of Tucker’s American Blackstone Tucker’s annotated edition of Blackstone qu ickly beca me known as the American Blackstone.23 It was the first treatise on common law writ ten for t he n eeds and con ditions of t he Amer ica n legal profession. The tr eat ise consisted of Bla ckst one’s four origina l volumes, ann otated by Tucker, plus numerous app en dices on Amer ica n la w a nd t he Const it ution . The “five-volume [work] was the standard work on American law for a gen erat ion.”24 Alm ost eve ry prospective la wyer began his studies by reading Tucker’s Blackstone, and some lawyers may never have read anyth ing else.25 Thomas Jefferson recommended Tucker’s Blackstone as part of the course of study for aspiring law students, since the Tucker book was the best source for overall mast ery of American law.26 Before the publication of Chancellor Kent’s Com m enta ries in the late 1820s, “Tucker’s [Blackstone] was the only t rea tise on Amer ica n law available in the na tion. Until 1827, Tucker was the most frequ ently cited American legal scholar . . . .”27 In short, Tucker’s Blackstone is “generally considered the single
was detailed in ST. GEORGE TUCKER, A DISSERTATION ON SLAVERY: WITH A PROP OSAL FOR THE GRADUAL ABOLITION OF IT IN THE STATE OF VIRGINIA (179 6). Tucker ensu red the wide cir culat ion of his p roposa l by ma kin g it a n a ppen dix to h is 1803 t rea tise . See 2 BLACKSTONE, supra note 14, app. at 31. Tucker described the disarmed status of free Negr oes in Virgin ia as amounting to civil slavery. But he urged that the law against own er sh ip of a rm s by fre edm en be le ft in pla ce u pon th e a bolit ion of slaver y, so as to encourage t he ex-slaves to settle outside Virginia. See id. app. at 57, 68, 78- 79. 22. See PRINCE, supra note 15, at 5. 23. See Pau l Finkelm an & Da vid Cobin, In trod uct ion to 1 BLACKSTONE, supra note 14 at i. 24. Carrington, supra note 19, at 334. 25. See Pa ul D. Ca rr ingt on, Law as “The Comm on Thought s of Men”: The Law- Teaching an d J ud gin g of T hom as M cIn ty re Cooley, 49 STAN . L. REV. 495 , 51 6 (19 97). 26. See Eliza beth Gas par Brown , A Jeffersonian’s Recommendations for a Lawyer’s Edu cation: 1802, 13 AM. J. LEGAL HIST. 139, 141 (1969). Two decades later, Tucker’s Blackstone was still “necessary to every student and practitioner of law in Virginia.” Dan iel Call, Biographical Sketch of the Jud ges of the Court of Appeals, 8 Va. (4 Call) xxvi, xxviii (1827), reprinted in J EFFE RSON, VIRGI NIA REPORTS, 1730-1880, at 627 (Th omas J ohns on Mich ie e d., Th e Mi chi e Co . 19 02). 27. Finkelman & Cobin, supra note 23, at xiii. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1374 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 most important ea rly lega l t ext crea ted by a n Amer ica n scholar.”28 Alfred Brophy observes: “When Americans set out to remold law books for use in America, as Henry [sic] St. George Tucker did in 1803 with Blackstone’s Com m enta ries, their results are extraordinarily illumin atin g a bou t bot h the m in d of Am er ica ns and the stat e of American la w.”29 Tucker did not int end mer ely to reprint Blackstone; he wanted to show how Blackstone’s ver sion of the comm on law had been changed —in the dir ect ion of significantly great er civil libert y—by development s in Amer ica , especia lly the r atifica tion of the Const itu tion an d Bill of Rights.30
3. Tucker on the right to arms in Bla ckst one The second volume of Tucker’s American Blackstone contains Blackstone’s commentary on what Blackstone called the five “auxiliary rights of the subject.”31 These were righ ts (such as the right to seek legal redress in court, and the right to petition) whose ma in pur pose wa s to safeguar d pr ima ry rights.32 Blackstone had written : The fifth and last auxiliary right of the subject, that I shall at
pr ese nt m en tion , is th at of ha ving arm s for their defence[fn40] su ita ble to t heir cond ition and d egr ee, and s uch as ar e allowed by law[fn 41]. W hich is a lso declared by the same statute 1 W. & M. st. 2 c. 2, and it is indeed, a public allowance under due restrictions, of the natural rights of resistance and s elf- preservation, when the sanctions of society and laws are found insu fficien t t o re st ra in th e viole nce of opp re ssion.33
28. Riddick, supra note 16, at 73; see also Hon . Armiste ad M. Dobie, Federal Dis tr ict J ud ges i n V irg in ia B efore t he C ivil War, 12 F. R.D . 45 1, 4 60 (1 952 ) (“[T]he Ame ri can Blackstone was unquestiona bly one of the most impor ta nt law-books of its da y.”). 29. Alfred L. Brophy, “Ingenium Est Fateri Per Quos Pr ofeceri s:” Franci s Da ni el Pastorius’ Young Country Clerk’s Collection an d A ng lo-Am erica n L egal Li ter at ur e, 1682-1716, U. CHI. SCH. ROUNDTABLE 637, 671 n.121 (1996) (citing Robert M. Cover, Tucker’s Blackstone, 70 COLUM. L. REV. 1475, 1475 (1970); John H. Langbein, Ch an cellor Kent and t he History of Legal Literature, 93 COLUM. L. REV. 547 (199 3)). 30. See Fin kelm an & Cobin, supra note 23, at ii. 31. 2 BLACKSTONE, supra note 14, at 140-42. 32. See id. The prim ar y rights were p ers onal secur ity, pe rson al liber ty, a nd proper ty. See id. at 121-38. 33. Id. at 143 (footnote s a dd ed by T uck er ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Bla ckst one was explaining th e English Bill of Righ ts, wh ich provided: “That th e su bjects which are protesta nt s, may h ave arms for their defence suitable to their conditions, and as allowed by law.”34 Tucker a dded his own analysis in two footnotes: [fn40] The right of the p eop le t o ke ep an d b ea r a rm s shall not
be infringe d. Am endm en ts to C . U. S. Ar t. 4 , an d t his w ith out any qualification as to their condition or degree, as is the case in the British government.35 [fn41] Wh oever exa m ine s the forest, a nd gam e la ws in t he British code , will r ea dily p er ceiv e t h at t h e r igh t of keeping arms is effectu ally ta ken a wa y from th e pe ople of E ng lan d. The com m entator himself informs us, Vol. II, p. 412, “that the pr eve ntion of popular insurrections and r esistence to governmen t by disarming the bulk of the people, is a rea son oftener meant than avowed by the makers of the forest and ga m e la ws .”36 Tucker’s footnote 40 echoed the langu age of t he Secon d
Amendment. He distinguished the American right to arms from its British antecedent by noting that the American right had none of the limita tions that were contained in the British right. Tucker’s criticism of the En glish Bill of Rights paralleled Madison’s criticisms in a speech to Congress introducing the Bill of Rights.37
34. 1 W. & M., Sess. 2, ch. 2 (1688). Th e Pa rliament ena cting t he Bill of Right s had re ject ed a n a rm s gu ar an te e lim iti ng th e r igh t on ly t o ar ms kept “for th eir comm on defence.” MALCOLM, supra note 1, at 117. Although Catholics were excluded, they were allowed by statute to keep guns on their own property for persona l de fense. See 1 W. & M. Se ss . 2, ch. 15 (1 688 ); MALCOLM, supra note 1, at 122-23. 35. 2 BLACKSTONE, supra not e 14 , a t 1 43 n .40. Th e cit at ion to “Ar t. 4” re flect s the fact that the Second Amendment was originally the Fourth Amendment and gained its current num bering only when the original first two amendments (controlling House of Representatives apportionment and Congressional pay raises) failed to win spee dy ra tificat ion by t he s ta tes . Tucker’s num bering system followed the numbering of the amendments as proposed to t he S ta tes by Congr ess. S ee 1 id. app. at 300. 36. 2 id. a t 1 43 n .41 (qu ota ti on ma rk s m odifi ed to r efle ct m ode rn us ag e). 37. “They [the propos ed Bill of Right s] rela te 1s t. t o priva te ri gh ts — . . . fa lla cy on bot h s ide s—esp ec[ia ll]y a s t o En glis h D ecln . of Rt s—1. mere act of parl[iamen]t. 2. no freedom of press—Conscience . . . attainders—arm s to Protest [an]ts.” James Madison, N otes for S peech in Con gres s S up port in g Am end m ent s (J une 8, 1789), in 12 THE PAPERS OF JAMES MADISON 193-94 (Charles F. H obson et . al. eds., 197 9); see also THE ORIGIN OF THE SECOND AMENDMENT 645 (David E. Young ed., 1991) [hereinafter D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Tucker’s footnote 41 qu oted Bla cks tone’s descr iption of th e En glish ga me la ws , with their restrict ion on the ownership of hunting weapons as havin g th e covert int ent of disa rm ing t he non-aristocratic population. In his commentary on the game laws section of Blackstone, Tucker added his own condem na tion of Brit ish pr actice, contrast in g it wit h the r obu st righ t to arms in Amer ica : The bill of rights, 1 W. a nd M, sa ys M r. Black stone , (Vol. 1
p. 143,) secures to the subjects of England th e right of ha ving arms for t heir de fen ce, suitab le to t heir con diti on an d degree. In the construction of these game laws it seems to be held, that no person wh o is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except th e gam e-k ee pe r of a lor d or la dy of a m an or) is adm itted to be qualified to kill game, unless he ha s 100l. per annum, &c. it follows th at no ot he rs can keep a gu n for th eir defence; so that the wh ole n at ion ar e com ple te ly disa rm ed , an d left at the mercy of the government, under the p re te xt of preserving the breed of hares and pa rt rid ges , for the exclusive use of th e in de pe nde nt cou ntr y ge ntle m en . In Am er ica we may re as ona bly hope that the people will never cease to regard the right of keepin g and bearing arms as the su re st pled ge of th eir liberty.38 In fact, Tucker was wr ong in his dire description of
England; after the overthrow of the Stuarts in 1689, the game laws were no longer used t o disarm the common people. The law pr esumed that a comm oner ’s gun wa s inten ded for self- defense (a right guar anteed by the 1689 Bill of Rights), unless the circumstances showed that the gun was used for u nla wfu l hunting.39 But more important than wheth er Tucker a ccura tely understood English circumstances is what his widely read treatise shows about th e stat e of American law. Tucker’s remarks un am biguously described “the right of keepin g an d bearin g ar ms as th e su rest pledge of . . . liberty.”40
ORIGIN]. 38. 3 BLACKSTONE, supra note 14, at 414 n.3. 39. See MALCOLM, supra note 1, at 126-30. 40. 3 BLACKSTONE, supra note 14, at 414 n.3. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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4. Tucker’s appen dix on th e Am erican Con stitution Tucker’s American Blackstone contained several appendices, including a length y a pp en dix a nalyzin g t he n ew Amer ica n Con st it ution . This appendix was “the first disquisit ion upon the character and interpretation of the Federal Constitution, as well as upon its origin an d tru e na tu re,”41 and was used as a legal textbook for many decades throughout the United States.42 Tucker’s constitutional analysis remains powerful in modern times. For exam ple, Tucker was th e first scholar to argue that the First Amendment advanced far beyond English common law fr eedom of pr ess. While freedom of press in England meant only freedom from prior restr aint s, Tucker argued that the First Amendment left Congress with no power at all to punish newsp apers, eve n after the fa ct.43 Justice Hugo Bla ck la ter obser ved that Tu cker ’s app en dix set forth “th e genera l view held when t he First Amendment was adopted and ever since.”44 Justice Black was right to cite Tucker as th e definitive source for origina l intent . “While Tucker published his [Amer ica n] edit ion of Blackstone in 1803, he began wr itin g it in 1790, as h e prepared lect ures for his courses at William and Mary. The ideas and arguments in his volumes are thus perhaps as contem pora neous to the Founding as it is possible to find.”45 Because “[g]reat weight has always been attached, and very rightly attached, t o contempora neous exposition,”46 the Supreme Court has cited Tucker in over forty ca ses. On e ca n find Tucker in th e major cases of virtua lly eve ry Supr em e Court era. In the early nineteenth century Tucker is cited in Fletch er
41. St. George Tucker, The Judges Tucker of the Court of Appeals of Virginia, 1 VA. L. REG. 789, 794 (1 896); see also Fin kelm an & Cobin, supra note 23, at i. 42. See Tuck er, supra note 41, at 793. 43. See Fin kelm an & Cobin, supra note 23, at ii. 44. New York Times Co. v. Sullivan, 376 U.S. 254, 286, 296 (1964) (Black, J., concurring) (J us ti ce D ougla s joi ne d t hi s con cur re nce ). 45. Finkelman & Cobin, supra note 23, a t v. 46. Cohens v. Vir gin ia , 19 U. S. (6 Wh ea t. ) 264 , 41 8 (18 21). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1378 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 v. Peck ,47 Dartmouth College,48 Gibbons v. Ogden,49 Ch arles River Bridge,50 and Dred S cott;51 later in the nineteenth century Tucker appears in the Slaughter-house Cases,52 Spies v. Illinois 53(the Haymarket case), and Pollock v. Farmers’ Loan and Tru st Co.54 (income tax). Tucker also appears in Dennis v. United States,55 New York Times v. Sullivan,56 Harmelin v. Michigan,57 and U.S. Term Limits v. Thorn ton ,58 in the twentieth cent ur y.59
47. 10 U. S. (4 Cr an ch) 8 7, 1 21 (1 810 ). 48. Dartmouth Coll ege v. Wo odw ar d, 1 7 U .S. (4 Wh ea t. ) 518 , 60 7 (18 19). 49. 22 U. S. (9 Wh ea t. ) 1, 8 6, 1 13, 179 (182 4). 50. Char les Riv er Br idg e v. Wa rr en Br idg e, 3 6 U .S. (11 P et .) 42 0, 4 72 (1 837 ). 51. Scot t v. S an dfor d, 6 0 U .S. (19 H ow.) 3 93, 578 (185 6). 52. 83 U. S. (1 6 Wa ll.) 3 6, 1 27-2 8 (18 72). 53. 123 U. S. 1 31, 152 (188 7). 54. 157 U. S. 4 29, 629 (189 5) (Wh it e, J ., d iss en ti ng ). 55. 341 U. S. 4 94, 522 -23 n .4 (1 951 ) (Fr an kfu rt er , J ., con cur ri ng ). 56. 376 U. S. 2 54, 286 , 29 6-97 (196 4) (Bl ack , J ., con cur ri ng ). 57. 501 U. S. 9 57, 977 (199 1). 58. U.S. Ter m L im it s, I nc. v. Thornt on, 514 U.S. 779 (1995). The Court used Judge Tucker’s “two primary argum ents” in its holding against t he power to add ter m limits qualifications: First, tha t in a repr esenta tive government, the people have an undoubted right t o judge for them sel ves of th e qua lification of the ir delegate, and if their opinion of the integrity of their representa tive will sup ply th e wa nt of est at e, t he re can be n o re as on for the government to interfere, by saying, that the lat ter m ust a nd sha ll overbalance the former. Secondly; by requirin g a qu alificat ion in est at e it m ay often ha ppen , th at men th e best qua lified in oth er r espect s migh t be in capacit at ed from s ervin g th eir country. Id. at 824 n .34. 59. Som e other cites: P acific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 2 9 (1991) (Scalia, J ., concur ring in jud gm en t) (“It wa s t hu s a s a su ppos ed a ffirm at ion of Magn a Charta according to Coke that the First Congress . . . included in the proposed F ift h Amendment to t he Fe de ra l Con st it ut ion th e p rovis ion th at ‘[n]o person shall be . . . deprived of life, liberty, or p roperty, without due process of law.’ Early commentar ies confirm th is. S ee, e.g., 2 W. BLACKSTONE, COMMENTARIES 133 nn.11, 12 (S. Tucker ed., 1803 ).”); U.S. S te el Cor p. v. Multistat e Tax Comm’n, 434 U.S. 452, 463 n.13 (1978) (“St. George Tucker, wh o along with Madison and Edmund Randolph was a Virginia commissioner t o the Anna polis Convention of 1 786, dr ew a dis tin ction between ‘treaties, alliances, and confederations’ on the one hand, and ‘agre em en ts or compacts’ on th e oth er: . . . 1 W. B LACKSTONE, COMMENTARIES, Appendix 310 (S. Tucker ed . 18 03). ”); Apoda ca v . Or egon , 40 6 U .S. 404 , 40 8 n .3 (1 972 ) (“[T]he unquestioning acceptance of the unan imity rule by text writ ers such as St. Geor ge Tucker indicat e th at [jury] un an imit y becam e th e accepted ru le dur ing the 18th cen tu ry .”); Smit h v. Ca lifornia, 361 U.S. 147, 157 n .2 (1959) (Black, J ., concurr ing) (“For anoth er ear ly discussion of the scope of the First Amendment as a complete bar to al l fed er al ab ri dgm en t of s pee ch a nd pr ess s ee S t. Geor ge T uck er’s comme nt s on the adequ acy of state forums and st ate laws t o grant a ll the protection needed D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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5. Tucker’s exposition of the Second Amendment Although Tucker h ad addressed the Second Amendm ent in his footnotes to Blackstone, the constitutional appendix gave Tu cker the oppor tunit y for a fuller exp osition : This m ay be con sid er ed as th e t ru e p alladiu m of
liberty60 . . . . The right of self defence is the first law of nature: in most governm ents it has been th e st ud y of ru lers to confine this right within th e nar rowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arm s is, under any colour or pretext whatsoever, pr ohibited, libert y, if not alr ea dy a nn ihila ted, is on the brink of destruction. In England, the people have been disarmed, generally, un der th e sp ecious pr etext of pre ser ving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for ver y differen t p urp oses. Tru e it is, t heir bill of rights see m s a t fir st view to cou nte ra ct t his p olicy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been int erpreted to au thorise th e prohibition of keeping a gu n or other engine for the destruction of gam e, t o an y farm er , or in fer ior tradesman, or othe r p er son not qu alified to k ill game. So that not one man in five hundred can keep a gun in his house with out being su bject to a pen alty.61 Besides asserting that the Second Amendment upholds an individual right essential for liberty, Tucker also argued that even wit hout the Second Am en dm en t, Con gr ess cou ld not
against defamation and libel.”); Barenblatt v. United States, 360 U.S. 109, 151 n.23 (1959) (Black, J ., dissen tin g) (“Cf. St. George Tu cker , Appen dix, 1 Blackstone Comment aries (Tucker ed. 1803) 299. ‘[T]he judicial courts of the respective states a re open to all persons a like, for the redr ess of injuries of this na tur e [libel] . . . . But the genius of our government will not perm it the federa l legislature to inter fere with the su bje ct; an d t he federal courts a re, I presu me, equally restr ained by the pr inciples of the constitu tion, and th e amen dment s which have since been a dopte d.’” (omiss ion and alt er at ions in or igin al)); id at 150 n. 20 (“Cf. St. George T ucke r, Appe ndix, 1 Blackstone [Tucker ed. 1803] 315, discussing English laws ‘for suppressing assem blies of fre e-m as ons ’ an d poin ti ng out th at sim ila r l aw s ca nn ot b e en act ed under our Con st it ut ion .”). 60. William Rawle’s and J ustice Story’s treatises closely followed this language. See infra text a ccompanying notes 96, 112. 61. 1 BLACKSTONE, supra note 14, app. a t 300. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1380 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 disarm “any person” because disarmament could never be “necessary and proper”:62 If, for example, congress wer e to pass a la w pr ohibiting a ny
person from bea rin g arms, as a means of preventing insurr ections, the judicial courts, under the construction of the words ne cessa ry an d p rop er , here cont en ded for, wou ld be ab le to pronounce decidedly upon the constitutionality of these mea ns.63
Tucker continued his reasoning, using the example of Con gr essional disarmament as an illustration for the necessity of judicial power to declare laws unconstitutional.64 St. George Tu cker appears regu lar ly in Standard Model articles discussing the Second Amendment.65 It is perhaps sign ifica nt that none of the anti-individual writers even admit Tucker’s existence, let alone attempt to address the meaning of the m ost im por tant la w book of t he E arly Republic. Suppose that the gun pr ohibition lobbies’ claims were correct an d the Second Amen dment plain ly gua ra nt eed only a state’s right to raise a militia. If such were the case, it is indeed strange that not one of th e a rchit ect s of t he Constitution offered any objection to St. George Tucker . Mos t of the framers of the Con st it ution , including Madison, were alive in 1803 and actively enga ged in public affair s. Many were la wyers, and it
62. U.S. CONST. art. I, § 8, cl. 18. 63. 1 BLACKSTONE, supra note 14 , app. at 289. For furt her an alysis of th is passage, see Gary Lawson & Patr icia B. Gr an ger, The “Proper” Scope of Federal Power: A J urisdictional In terpretation of the Sweeping Clause, 43 DUKE L.J . 267, 302- 03 (1993) (arguin g th at prior to adopt ion of Bill of Rights, all natural rights—including the r ight to arm s—were protected by the Necessary an d Proper cla us e). 64. See 1 BLACKSTONE, supra note 14, app. a t 289. But if congress may use any means, which they choose to adopt, t he provision in th e constit ut ion which secur es to t he pe ople th e righ t of bear ing arms, is a m ere n ullity; a nd a ny m an impri son ed for bear ing arm s under such an act, m ight be with out r elief; because in tha t case, no court could ha ve any power to pronounce on the necessity or propriety of the mean s adopted by con gr ess t o car ry an y sp ecifie d power in to com ple te effect . Id. 65. S ee, e.g., CRAMER, supra note 1, at 69; HALBROOK, THAT EVER Y MAN BE ARMED, supra note 1, at 53, 90, 99; Dowlu t, The Right to Arms, supra note 1, at 83- 84; Gott lieb, supra note 1, at 130-31; Ha lbrook, supra note 19, at 20-26; Kates, Handgun Proh ibit ion , supra note 1, at 241-43; McAffee & Quinlan , supra note 1, at 867-68; Powe, supra note 1, at 1369-70. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1381 would have been difficult for them to fail to notice the leading lawyer’s book in the United States. Tucker presents an int erpret at ion of the Second Amendment that the anti- individualists would find wrong in every respect: the r ight is individua l, not a state’s right; it belongs t o ever yone, not ju st militia members; its purposes in clude defense a gain st tyr an ny and hunting. And yet, not one of the framers stepped forward to correct Tucker’s flagitious misunderst anding of the Secon d Amendment. Is it reasonable t o infer that Tucker—far from grossly misunderstanding th e Second Amendmen t—was merely restating a u niversal u nderstan ding?66 Might Ma dison ’s opin ion of Tucker’s legal scholarship be in fer red from Ma dison ’s appointmen t of Tucker to the Federal bench in 1813?
B. Houston v. Moore The War of 1812 was unpopular in the Northeast, and many people resisted orders to muster for milit ia service. Houston v. Moore grew out of a prosecution under Pen nsylva nia la w for failure to perform federal m ilitia duty.67 In 1814, t he Pen nsylvan ia legislat ur e enacted a bill providing that “ever y n on-commissioned officer and p riva te of the militia wh o shall have neglected or refused to serve when called into actual ser vice” by the President should be punished according to the terms of th e federal militia law of 1795. The Pennsylvania law specified th at persons accused of violating th e law would be tr ied by a stat e court -mart ial.68 On July 4, 1814, President Madison, acting through the Secretary of War, told the Governor of Pennsylvania to supply militiam en for service in the war against Gr eat Brita in. The Pen nsylvania militia wa s t o be sent to gu ard Balt im ore and the Delaware River aga inst expected Br itish a tt ack. (Napoleon ’s recen t defeat s in Eu rope h ad freed th e ma in force of the British ar my for war aga inst t he United St at es.)
66. Tucker’s Blackstone was a five-volume tr eat ise, in pa ra llel with the original Blackstone. Only Tu cker’s addit ions, not th e origina l Blackstone, were new, and therefore poten tially controver sial. Tu cker’s writin gs on const itu tiona l subjects would ha ve been e specially like ly to dra w th e at ten tion of th e lawyers, in cluding Madison, who ha d wr itt en th e Con st itu tion . 67. See Ho us ton v. M oor e, 1 8 U .S. (5 Wh ea t. ) 1 (18 20). 68. Id. at 2-3. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Houston refused to serve, was eventually tried by a state court-martial, and fined. He sued in state court to have his fine overtur ned, lost, and eventually brought the case to the United States Supreme Court. Houston ar gued th at th e Penn sylvan ia law was unconstitutional because Article I, Section 8, Clauses 15 and 16 of the Constitution make Congress the authority over the milit ia. Clause 15 gives Congress the power “To provid e for calling forth th e Militia to execute the Laws of the Union, suppr ess Insurr ections and repel Inva sions.”69 Clause 16 gives Congress the power “To provid e for organizin g, armin g, a nd d isciplin in g, t he Militia , a nd for governing such Part of them as may be employed in th e Ser vice of the United States, reserving to the States respectively, t he Appointment of the Officers, a nd the Authority of training the Militia accordin g to th e discipline prescribed by Congress.”70 Houston’s lawyer reasoned that the Congressional power over the national militia is plenary an d, therefore, states could not legisla te on the subject. Pennsylvania’s la wye rs r espon ded t hat Con gr essional power over the militia was concurrent with state power, not exclusive. They point ed t o the Tenth Amen dment, which reserves to states all powers not granted to the federal government.71 Further, they said, the Pennsylvania statute punishin g militia resisters was consistent with th e similar federal statute punishing resisters.72 The Supreme Cour t’s opinion was deliver ed by J ustice Bushrod Wa sh in gt on, a nephew of George Wash in gt on. J ust ice Washington concluded that, as a general principle, federal legislation regarding the militia was exclusive. Since Congress had enacted a law punishing militia resisters, the states cou ld not enact their own laws about militia resisters.73 But, continued J ustice Washington, the inst ant case was different. Her e, th e question was wheth er a Pen nsylvania court-martial could enforce the federal law. Yes, answered
69. U.S. CONST. art . I, § 8, cl. 15. 70. Id. at cl. 16. 71. See U.S. CONST. am end . X. 72. See Hou ston , 18 U.S. at 7-12. 73. See id. at 21-24. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Justice Washington, since the Congressional law crea tin g federal court-martials for militia resisters did not forbid states from enforcing the federal law. And the Pennsylvania statute did not create a new law, but merely enforced the federal one.74 Thus, the Pennsylvania conviction was upheld.75 Justice William Johnson agreed with the result, but wrote a separ at e opinion explain ing h is reasonin g.76 Analyzin g bot h the federal militia law an d the par ticular militia order t o which Houston had been su bject, Justice Johnson concluded that Houston could not be prosecuted by t he federal gove rnmen t for violatin g the federal m ilitia la w. Accor dingly, H oust on’s prosecution by Pennsylvania did not interfere with any federal powers.77 Justice Johnson’s opinion treated the Fifth Amendment double jeopa rdy clause as enforceable aga inst the state of Penn sylvan ia; his opinion was the foundation of nineteenth century argument that, Barron v. Baltimore78 notwithstanding, the Bill of Rights did apply to the states. Justice Joseph Story dissented.79 Because Congress had enacted ext en sive m ilitia legisla tion , in clu ding legis la tion punishing militia resisters, its authority was exclusive.80 A state could not legislate with rega rd to militia resisters. Federal militia control be ga n wh en the P residen t called for th the militia, not wh en the m ilitia men must er ed at the r en dezvou s spot.81 Part of Justice Story’s dissenting opinion addressed a hypothetical: What if Congress, instead of exercising its constitutional power over the militia, neglected the militia? In case of Congressional ina ction, wrote Justice Story, the states could act:
74. See id. at 24-31. 75. See id. at 32. 76. “It is not very easy,” Justice Johnson began , “to form a distinct idea of what the question in t his ca se r eally is .” Id. at 32. In deed, Houston v. Moore could supplant Pennoyer v. Neff, 95 U.S. 714 (1877), as th e ideal case la w professors could use to baffle first-day law students—if law professor s consider ed th e milit ia as interesting as in rem jur isd icti on. 77. See Hou ston , 18 U. S. a t 4 2-45 (J ohns on, J ., con cur ri ng ). 78. 32 U.S. (7 P et.) 243 (183 3). 79. This was the only time tha t Justice Story dissented from a constitutional decis ion in which Chief Justice Marshall was in the majority. S ee J AMES MCCLEL LAN , J OSEPH STORY AND THE AMERICAN CONSTITUTION 311 n. 161 (197 1). 80. See Hou ston , 18 U.S. at 53-54. 81. See id. at 60-65. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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If, th er efor e, t he p re sent ca se tu rn ed upon th e qu estion ,
wheth er a State might organ ize, a rm , an d d iscip lin e it s ow n m ilitia in the abse nce of, or su bor din at e t o, th e r egu lation s of Congress, I am certainly not prepared to deny the legitimacy of such an exercise of authority. It does not seem repu gn an t in its nature to the grant of a like paramount authority to Congress; and if not, then it is retained by the States. The fifth [sic] am en dm en t t o th e con st itu tion , declaring that “a well regulated m ilitia being necessary to the security of a free State, th e r igh t of t he p eop le t o ke ep an d b ea r a rm s shall not be infrin ged ,” ma y not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather th an impugns the reasoning already suggested.82 Justice Story’s hypothetical, fifty-two pages into the case, marks the first appearance of the Second Amendmen t in Supreme Court jurisprudence. Justice Story’s main point was that th e stat e exercise of militia power would not be inconsistent with Congr essional m ilitia power, since (hypothetically) Congress would be ign oring the milit ia.83 After conceding that the Second Amendment (dubbed the “fifth” amendment in a typo) was proba bly irr elevant , Justice Story suggested that to the extent the Second Amendment was relevant , it supported his pos it ion . J ust ice S tory’s poin t wa s n ot unreasonable. Th e entir e Bill of Right s, after all, was anima ted by fear of federal a buse, a nd several of the Anti-Federalists raised concerns that the federal government might totally neglect the militia and thereby render it useless.84
82. Id. at 52-53. 83. In regard to int er st at e com me rce , J us tice St ory took a d iffer en t p osit ion: t he mere existence of a federal power over interstate commerce preempted any state re gulat ion of inter sta te com mer ce. S ee New York v. Miln, 36 U.S. (11 Pet.) 102, 157- 61 (1837). The Miln opinion was qu oted, for a different point, in another Suprem e Cou rt gun case, United States v. Cruikshank, 92 U.S. 542, 553 (1876). See infra text accompanying note 365. 84. See Hou ston , 18 U.S. at 7-12. Other s were concerned tha t th e federal power to arm and discipline the militia would entirely displace th e st at e pow er to d o so. See Pa tr ick He nr y, Vir gin ia Con ven ti on Deba te of J un e 5, 1788, reprinted in ORIGIN, supra note 37, at 373-74; Patrick Henr y, Virginia Convention D eba te of Ju ne 9, 1788, repr in ted in ORIGIN, supra not e 37 , at 380-8 1; George Ma son , Virg ini a C onve nt ion Debate of Ju ne 14, 1788, reprinted in ORIGIN, supra note 37, at 401-02; Patri ck Hen ry, Virginia Conven tion Deba te of J un e 14, 1788 , reprinted in ORIGIN, supra note 37, at 406, 410. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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The lea ding scholar of anti-individual Second Amendment interpretation, Dennis Hen iga n, a rgu es that the Secon d Amendment, rather than guaranteeing an individual right, limit s some of the federa l powers over the militia granted by Article I, Section 8.85 If H en iga n’s theor y were t rue—if t he Second Amendment were a guarantee of state control over the militia—th en the Second Amendment should have been at the center of Houston v. Moore. The precise issue in the case was Pennsylvania’s assertion of authority over the militia. Under the stat e power th eory of the Second Amendment, the strongest argument that Pennsylvania’s attorneys could have made would have been to point to the Second Amendment. But the Second Amendment never entered their arguments.86 If the Second Amendment were understood as a right of state governments against federa l control of the militia, then the total absence of the Second Amen dm en t in the r ea son ing of the state’s attorneys and the pro-stat e Justices is inexplicable. Justice Story’s dissent is in congr uen t wit h Hen iga n’s theor y that the Second Amendment somehow reduces Congress’s milit ia powers. In the paragr aph followin g t he Secon d Amendment hypothetical, Ju stice Story affirmed that whenever Congress is actually exercising its Article I powers over the milit ia, the power of Congress is exclusive, and there is no room for any state control, “however small.”87 Like the writings of St. George Tucker, the Houston v. Moore decision is a bsen t from the a nt i-individual articles.
For fede ra list re as su ra nce s t ha t t he st at es r et ain ed con cur re nt powe r t o ar m and discipline th e milit ia, wh ich could be u sed in case of federal neglect, see An Im partial Cit izen , VA. GAZ., Mar . 13, 1788, reprinted in ORIGIN, supra note 37, at 299 ; Rich ard Henry Lee, Virginia Convent ion Deba te of J un e 9, 1788, reprinted in ORIGIN, supra note 37, at 3 82-83 ; John Marsh all, Virginia Convention Deba te of Jun e 16, 1788, repr in ted in ORIGIN, supra note 37, at 426. 85. See Hen igan , supra note 12, a t 2 2 (“[Ame rican colonists] sough t in th e Bill of Righ ts a r ea ffirm at ion of t he rig ht of th e st at es t o ha ve t he ir own armed militia, composed of ordina ry citizens , as a check on th e p owe r of th e s ta nd in g a rm y.”); Henigan, Arms, Anarchy, supra note 2, at 1 16 (“[T]h e Secon d Am en dm en t d id a ffect som e change in th e Constitut ional scheme; presuma bly the Framers did not adopt the Bill of Rig ht s in 179 1 wi th th e in te nt to l ea ve t hi ng s a s t he y we re in 178 7.”). 86. The repor ter ’s text sum ma rizes t he a rgu men ts pr esen ted by each side. See id. at 4-12. 87. Hou ston , 18 U.S. at 53. The Supreme Court decided one other militia case during this period. Writing for a unanimous Court, Ju stice Story held that the President’s dete rm ina tion of th e nee d for a m ilitia ca ll-out was not s ubject t o judicial review. S ee Ma rt in v. M ott , 25 U. S. (1 2 Wh ea t. ) 19, 28-3 9 (18 27). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Unlike th e Amer ican Blackstone, the 1820 Houston case is not contemporaneous with t he creation of the Second Amendment, but neither is it far removed from the founding era. And the im plica tion s of the case are just as inconsisten t wit h t he a nt i- individual theories of the Second Amendment as are the direct statements made by St. George Tucker.
C. William Raw le Supplanting Tucker’s Blackstone as the leading Amer ica n constitution al treatise was William Rawle’s 1825 A View of the Con stitution of the United States of America.88 A View of the Constitution was used, among other places, at the Un ited States Military Academy at West Point.89 The treatise enjoyed sufficient popular ity for there to be a second edition, and there would have been a third had Rawle not passed away in 1836.90 Like Tucker, Rawle was a dist ingu ished a tt orney long before he became an “influential treatise wr iter.”91 Elected to the Pennsylvania legisla tu re in 1789, Rawle declined George Washington’s repeated offers to serve as the first Attorney Genera l.92 Rawle accepted Washington’s appointmen t as United States Attorney for Pennsylvania, however, and held the post from 1792 to 1800.93 A pr odigiou s s cholar, Rawle authored many law books in addition to his constitutional treatise, although th e tr eat ise is t he only one tha t r ema ins in pr int today. “[O]ne of the most respected lawyers of the da y,”94 he
88. WILLI AM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA (182 5). 89. See The R aw le R ead in g R oom at Tem ple U ni versity Law L ibrary (visited Nov. 8, 1998)
1359] SECOND AMENDME NT IN THE 19TH CENTURY1387 also founded Rawle & Henderson, which is now the oldest law firm in the United States.95 Rawle described t he Second Amen dment a t lengt h: In th e se cond ar ticle , it is de clar ed , th at a well regulated
m ilitia is n ecessa ry to th e secu rit y of a free s tate; a propos ition from which few will dissent. Although in actual war, the services of re gu lar t roop s a re confe ssed ly m ore valuable; yet, while peace prevails, and in the commencement of a war befor e a r egu lar for ce ca n be r aised, t he m ilitia form the palladium of the country. They are ready to repel in va sion , to suppr ess insurrection , and p re serv e t he good or de r a nd p ea ce of government. That they shou ld be well r egu lat ed, is jud iciously add ed . A disor de rly m ilit ia is d isg racefu l to it se lf, and dangerous not to the en emy, but to its own country. The duty of the st at e govern m en t is, to a dopt such regu lation s as will ten d to m ake good sold iers wit h th e leas t in te rr upt ions of the ord inar y a nd u seful occu pa tion s of civil life . In th is all the Union has a strong and visible interest. The corolla ry , from th e fir st pos ition , is, t hat th e righ t of th e peop le to k eep a nd bea r a rm s sh all n ot be in fri nged . The pr ohibit ion is ge ner al. No clau se in th e Const itu tion could by any rule of construction be conceived to give to congress a power to disarm th e p eople. S uch a flag itiou s attempt could only be made under some gener al pr eten ce by a state leg islatu re. B u t if by a n y blin d p u rsu it of inordinate power, either should attem pt it, this am endm ent m ay be appealed to as a restraint on both. In most of the countries of Europe, this right does not seem to be d en ied , alth ough it is allowed more or less spar ingly, accordin g to cir cum st an ces. I n Engla nd, a country which boasts so much of its freedom, the right was secured to protestant su bject s on ly, on the revolut ion of 1688; and it is cau tiou sly described to be that of bear ing ar m s for t he ir defence, “suita ble to t heir cond ition s, a nd a s a llowe d b y la w.” An ar bit ra ry code for t he p re serv at ion of gam e in th at coun tr y has long disg ra ced t he m . A ver y sm all pr oportion of the pe ople bein g pe rm it ted to k ill i t, t h ou gh for th eir ow n su bs isten ce; a gun or other instrument, used for that purpose by an unqualified pe rs on , m ay be seized or forfe ite d. B la cks tone, in whom we regret tha t we cann ot always tra ce the expanded principles of ra tion al libert y, obs er ves howe ver , on this subject, that the pr evention of popular insurrections and resistance to
95. See Th e Ra wl e Rea di ng Room , supra note 89. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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governmen t by disarm ing the people, is oftener mea nt than avowed, by makers of forest and gam e laws. This right ought not, however, in any governm ent, to be abused to the distur bance of the public peace. An as sem bla ge of pers ons wit h a rms, for an unlawful purpose, is an indict ab le offen se, an d e ven th e ca rr yin g of arms ab roa d by a s ingle in divid ua l, at tend ed w ith circumstances giving just reason to fear that he purposes to make an unlawful use of t h em, would be sufficient cause to require him to give su re ty of the pea ce. If he refused he wou ld be liable for imprisonment.96
96. WILLI AM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA (Leon ar d W. L evy ed ., Da C ap o P re ss 197 0) (2d ed . 18 29) (citations and footnotes omitt ed). N ot a ll of Ra wle’s con st itu tion al ana lysis was vindicated by his tor y. His fin al ch ap te r m ain ta ine d t ha t s ta te s h ave a r igh t t o sece de fr om t he Union—a reas onable position in 1825, but one which was de alt a serious blow by Joseph Story in t he next decade an d which, whet her r ightly or wrongly, was decisively sett led by th e Un ion victory in the Civil War. Even when not vindicated by sub sequ ent decad es, h owever , Ra wle i s st ill u sefu l for u nd er st an din g th e st at e of Ame ri can legal thinking in the 1820s. The last sentence in t he quote cited to 3 EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 160 (Garlan d Publ. 1979) (1628); 1 WILLI AM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 126 (Garland Publ. 1978) (1716) (explaining th at th e J us tice of the Peace ma y requ ire su ret y from per sons wh o “go about with un usu al Wea pons or Att end an ts, t o the Ter ror of the P eople”). See RAWLE, supra note 96, at 126 n .‡. H aw kin s el sew he re exp lai ne d t ha t t he 1328 St at ut e of Northampton (against wearing arms in public) was limited in its construction, so [t]hat no wea rin g of Arms is within th e mea nin g of th is Sta tu te, u nless it be accompanied with such Circums tan ces as are apt to ter rify the People; from when ce it seem s clear ly to follow, That P ersons of Qua lity ar e in n o Danger of Offen din g ag ain st th is S ta tu te by we ar ing comm on Wea pon s, or having their usual Number of Attendants with the m, for t he ir Or na me nt or Defence, in su ch P laces, a nd upon such Occasions, in which it is the comm on Fa sh ion t o ma ke us e of the m, wit hou t ca us ing th e leas t S us picion of an In te nt ion to com mi t a ny Act of Viol en ce or Dis tu rb an ce of the P eace. And from the same Groun d it a lso follows, That P ersons a rm ed with privy Coats of Mail to the Int ent t o defend themselves against th eir Adversaries, are not within the Mean ing of the Sta tu te, beca use th ey do noth ing in ter rorem populi. S ect. 10. VI. That no Person is with in th e Intention of said Sta tut e, who arms himself to suppress Rioters, Rebels, or Enemies, and endeavours to suppress or r esi st su ch D ist ur ber s of t he Pe ace or Q uie t of th e Re alm ; for Persons who so arm themselves, seem to be exempted out of the gener al Words of the said Statute, by that Part of the Exception in the beginning th er eof, wh ich s eem s t o all ow all Pe rs ons to arm themselves upon a Cry made for Arms to keep the Peace, in such Places where such Acts happen. 1 HAWKINS, supra, at 136. It was not surprising that Rawle used Hawkins as an au th ority. The Ha wkins tr eatise went thr ough seven editions in th e eighteenth century, an d one m ore in th e nin ete ent h. See A.W.B. Simp son, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. CHI. L. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Rawle’s analysis of federal powers over the militia noted the value of widespr ead ar ms owner ship to a good militia: In a pe ople pe rm itt ed and a ccustomed to bear arms, we
have th e rud im en ts of a m ilitia, wh ich pr ope rly cons ist s of arm ed citizen s, divided int o milita ry bands, and instructed at least in part in the use of arms for t he pu rp oses of war. The ir civil occupa tions a re not r elin qu ish ed , exce pt while they are actually in t he field, a nd th e in conve nie nce of with dr aw ing them from their accustomed labors, abridges the time requ ired for military instruction. [Rawle then explicated how standing arm ies, with th eir stronger ha bits of obedience, usu ally prove su pe rior to m ilitias in th e field .]
. . . . But notwithstanding their inferiority to soldiers schooled
and practised in the field, gallant actions have been performed by our m ilitia collectively. T h e ca pt u re of a n entire army under General Bur goyne in 1777, and the celebrated defence of New Or lea ns in 1 814, wer e chiefly effecte d by m ilitia . But howe ver infer ior in m ilitary estimate to arm ies re gu lar ly trained, the m ilitia constitutes one of the great bulwarks of the nation, and nothing which ten ds to im prove and support it should be neglected.97
Rawle discussed Houston v. Moore and argued strongly against the “states’ rights” position on this issue; he suggested that federal deter min ation of the n ecessit y of a militia call-up was unreviewable by s tate gover nmen ts or by t he cou rts. 98 Rawle’s high regard for the militia was typical of his time. He clearly explained that the Second Amendm ent does not protect only potential militia mem bers, for “[t]he prohibition is general.”99 (Thomas Cooley’s treatise, half a century later,
REV. 632, 653 (1 981) (n oting that Hawkins sought to inter pret the crim inal laws based on pr in cipl es of ju st ice a nd re as onab len es s). Coke’s treatise was written to defend civil liberties and the common law against monarchial absolutism . Par aphr asing Ovid, Coke noted that “the laws permit the taking up of ar ms aga inst ar med per sons .” 3 COKE, supra, at 162; see also HALBROOK, THAT EVER Y MAN BE ARMED, supra note 1, at 19 (citing O vid, Artis Amatoriae III (line 492), in 2 OVID 118, 152-53 (J . Mozley tr an sl., 1969) (“The laws all ow ar ms to b e t ak en ag ai ns t a n a rm ed foe.”)). 97. RAWLE, supra note 96, at 153-54. 98. See id. at 155-61. 99. Id. at 125. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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would echo Rawle on th e Second Amen dment, sta tin g “The Right is Gen eral.”100) Writ ing long before Barron v. Baltim ore refused to enforce the Bill of Rights against the states,101 Rawle considered the Second Amendment a limit on state and feder al disarmamen t of the people. And wr itin g a century and a half before the Con gr essional power “to regulate commerce . . . among th e several States” was construed as a power t o ban th e simple intrastate possession of firearms,102 Rawle stated that, even putting the Second Amendment aside, Congress would have no power to disar m the people.103 Like Tucker’s Blackstone, Rawle’s A View of the Con stitution is cited by the Standard Modelers,104 but is conspicuously absent from law review articles asserting that th e Second Amen dment is not an individual r ight .105
D. Joseph Story The American Republic’s next major constitutional treatise was the 1833 Com m enta ries on th e Con stitution of the Un ited States,106 written by J oseph Story wh ile teaching at th e
100. THO MAS M. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AME RICA 298 (Andr ew C . McLa ughli n e d., L itt le, B row n, & Co. 1898) (1880 ); see also infra note 403 and accompanying text. 101. See Ba rr on v. Bal ti mo re , 32 U. S. (7 Pe t. ) 243 , 24 8-49 (183 3). 102. See generally David B. Kopel & Gle nn H. Reynolds, Tak ing Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 CONN. L. REV. 59 (1 997 ). 103. See RAWLE, supra note 96, at 125. 104. See CRAMER, supra note 1, at 69-70; Amar, Fou rt eent h A m end m ent , supra note 1, at 1203-04; Dowlu t, The Right to Arms, supra note 1, at 84-85; Gott lieb, supra note 1, at 131; Kat es, Ha nd gun P roh ibit ion , supra note 1, at 242-43; McAffee & Quinlan, supra note 1, at 869-70. 105. The sole an ti-ind ividua l au th or t o address Rawle is Geor ge Ana sta plo. See George Anastaplo, Am end m ent s to th e Con st itu tion of th e United States: A Comm entary, 23 LOY. U. CHI. L.J . 631 (1992). Ana st ap lo cha ra cte rizes Ra wle a s pr o- regulation, based on Rawle’s statement: “This r ight ought not, h owever, in an y government , to be abuse d in th e distur bance of public peace.” Id. at 691. Anas ta plo then assert s tha t th e modern “proliferation of weapons” disturbs the public peace. Id. Anastaplo th ereby confuses concer n a bout t he a buse of a right into opposition to the right its elf—a s if be ing oppos ed t o spe edi ng wer e t he sa me as bein g opp osed to t he owner ship of au tom obile s. An as ta plo d oes n ot a ddr ess th e fa ct t ha t R aw le’s posi tion on th e S econ d Am en dm en t i s e xpl icit ly in con sis te nt wit h An astopolo’s claim that the ear ly repu blic under stood the Second Amendment as guaranteeing no individual right. 106. J OSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Fred B. Rothma n & Co. 1991) (1833). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Harvard Law School. Story was the dominant legal figure of pr e-Civil Wa r Amer ica . No m an eve r w as m ore ste ep ed in th e la w, in te llect ually and
interpersonally. Profe ssional st udy, th e com m on elem en t for bench an d ba r, a tt ain ed n ew levels wit h S tor y. H e wr ote n ine important treatises, tau ght at—virtu ally created—the Har vard La w S chool . . . .107
President Madison appointed Joseph Story to the Supreme Cou rt in 181 1; at age 32, he was t he youngest man ever nominated.108 He served on the United States Supreme Court until 1845. After John Mar shall, no Justice of the early Court is considered more influential on Supreme Court jurisprudence. In 1840, Story au th ored an exp anded ve rsion of th e Com m enta ries, and also wrote a popularized version, entitled Familiar Exposition of the Con stitution of the Un ited S tates. Story’s constitutional treatises differed in important ways from th eir predecessors; he was far more enthusiastic about broad federal powers. Rawle had explicated the authority of states to secede from the Union.109 But Story alm ost single-han dedly created the doctrine of an indissoluble Union , a doct rin e which would carry the day in tellectu ally in th e North . Ea ch of Story’s treatises was “a major success” and some were still in use in th e twentieth cent ur y.110
1. The Second Am endm ent in S tory’s Commentaries Story’s commentary on the Second Amendment would lat er be quoted in n umerous St andard Model law review articles. For example, the following Story quotation appeared in Sanford Levinson’s 1989 article The Embarrassing Second Amendment:
107. ROBERT COVER, JUSTICE ACCUSED: ANT ISL AVER Y AND THE JUDICIAL PROCESS 238 (197 5). 108. See MCCLEL LAN , supra note 79, at 40-41. 109. See RAWLE, supra note 96, at 295-310. 110. MCCLEL LAN , supra note 79, at 42. The treatises, which grew out of lectures at Har vard, ar e PROMISSORY NOTES (1845), BILLS OF EXCHANGE (184 3), P ARTNERSHIP (184 1), AGENCY (1839), E QU ITY P LEADINGS (1838), EQUITY JURISPRUDEN CE, 2 vol. (183 6), THE CONFLICT OF LAWS (1834), ON THE CONSTITUTION, 3 vol. (1833), an d BAILMENTS (1832). In th e 1997 m ovie Amistad , retired Justice Harry Blackm un plays the role of Josep h St ory. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Th e right of th e citize ns to k eep an d be ar ar m s h as jus tly been
cons idered as t he p alla diu m of th e lib er tie s of a re pu blic;111 sin ce it offers a st ron g m ora l check against the usurpation and arbitrary power of rulers; and will generally, even if th ese are successful in the first instan ce, enable the people to resist and trium ph over them.112
In response to Levinson’s quotation of Story in his article, Dennis Henigan accuses Levinson of purposely omitting the remainder of Story’s passage, which states:113 And yet , th ou gh th is t ru th wou ld s eem so clear, and the
im por ta nce of a well regulated militia would seem so undeniable, it cannot be d isguise d t hat, a m on g t he Am er ican people, there is a growing indifference to an y sys tem of milit ia discipline, and a strong dis posit ion, from a s en se of its burdens, to b e r id of a ll r egu la tions. H ow it is p ra ctica ble to keep th e pe ople d uly ar m ed, w ith out som e organizat ion, it is difficult to see. There is certainly no small danger that in diffe re nce ma y lead to disgust, and disgust to contempt; and thus gradu ally un der m ine all t he pr otect ion in tend ed b y th is clause of our national bill of rights.114 However, nothing in the second part of the passage (quoted by Henigan) changes the meaning in t he first part (quoted by Levinson). In both part s, St ory sought to maintain militias as a count erweight to a standing army. He bemoaned th e declinin g interest of the people and th eir sta te governm ent s in militia training. Nothing Story said in the second through fourth sentences changes the m ea nin g of Story’s first senten ce, which asserts that the right to bear arms belongs not to state governments but to “the citizens.” The purpose of this right is to det er tyr an ny a nd allow popula r r evolut ion to unsea t a tyr an t. Henigan does some selective quoting of his own. While he chastises Levinson for not quoting a footnote in which Story
111. Compare this language to Tucker’s statement th at t he militia “may be considered as the true palladium of liberty.” 1 BLACKSTONE, supra note 14, app. at 300. Ju stice Thomas quoted St ory’s language in h is concurring opinion in Printz v. United S ta tes , 11 7 S . Ct . 23 65, 238 6 (19 97) (T homa s, J ., con cur ri ng ). 112. 3 STORY, supra note 106, a t 746 , § 1890, quoted in Hen igan , Arms, Anarchy, supra note 2, at 119, and in Levin son, supra note 1, at 649. 113. See Hen igan , Arms, Anarchy, supra note 2, at 119. 114. 3 STORY, supra note 106, at 746-47, quoted in Heniga n, Arm s, Anarchy, supra note 2, at 119-20. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1393 denounced standing armies,115 Henigan omits two other Story footnotes116 citing passages from Tucker a nd Rawle117 ent hu siastically praising the wide scope of the in dividu al r ight to keep and bear arms.118
115. It would be we ll for American s to r eflect upon th e pas sage in Tacitu s, (Hist . IV. ch. 74): “Nam n eque quies sine armis, neque arma sine stipendiis, neque stipendia sine t ributis, ha beri queunt.” Is t he re an y es cap e fr om a lar ge stan ding arm y, but in a well disciplined militia ? Th er e is mu ch wh oles ome inst ru ction on th is su bject in 1 Black . Comm . ch. 13, p. 408 to 417. 3 STORY, supra not e 106, a t 7 47 n .1; see also Hen igan , Arm s, Anarchy, supra note 2, at 120. Henigan mistakenly asserts that the pen ult im at e se nt en ce is a t ra ns lat ion of the Tacit us q uote. S ee Hen igan , Arms, Anarchy, supra note 2, at 120. Actu ally, t he sentence is Story’s own. The Tacitus quote, t ran sla te d, is : “For th e t ra nq uil lit y of nations cannot be preserved without ar mies; armies cannot exist without pay; pay cannot be fur nish ed wit hou t t ribu te; a ll else is common betw een us.” 116. See Hen igan , Arms, Anarchy, supra note 2, at 119-20. 117. See supra text a ccompanying note 96. 118. The footnotes appear in su pport of the t ext quoted by Le vinson . See 3 STORY, supra note 106, at 746, nn .1-2 (citing “I T u ck er ’s B la ck . C om m . A pp . 2 99 ” a n d “1 Tucke r’s Black Comm . App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd’s Debates 219, 220”). The la st cit ed sou rce, Lloyd’s Debates, was a record of discussion in Congress. Ju stice Story’s citation is to the F irst Congr ess’s debate of August 17, 1789, regarding the Second Amendment. On t he cited pages, the H ouse has gone int o a Committee of the Whole. The te xt of t he am en dm en t u nd er cons ide ra tion re ad s: “A well regulated milit ia, comp osed of th e bod y of th e pe ople, bei ng th e be st secu rity of a fre e st at e; t he rig ht of th e pe ople to keep an d bear a rms shall n ot be infringed, but no pers on, being r eligiously scrupulous, sha ll be compelled to bear arm s.” 2 THO MAS LLOYD , THE CONGRESSION AL REGISTER; OR, HISTORY OF THE PROCEEDINGS AND DEBATES OF THE FIRST HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA 219-21 (N.Y., Ho dge , Alle n, & Ca mp bel l 17 89). Massachusetts Representative Elbridge Gerry began: This declara tion of righ ts, I t ake it, is in ten ded t o secure th e people against the mal-administrat ion of the government; if we could suppose that in all cases t he rig ht s of t he peop le wou ld be at te nd ed t o, th e occasion for guards of this k ind w ould be rem oved. Now I am app reh ens ive, sir , th at th is clause would give an oppor tun ity to t he pe ople in power to dest roy th e cons tit ut ion itself. Th ey can d eclare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is t he us e of a m ilit ia? I t is to p re ven t t he est ab lish me nt of a sta ndin g ar my, t he ba ne of liberty. Now it must be evident, th at u nder th is provision , tog et he r w it h t he ir oth er powe rs , con gr ess cou ld t ak e such measu res with respect t o a militia, as ma ke a sta ndin g ar my n ecessa ry. Whenever governm ent mea n t o invade the r ights an d liberties of the people, they alwa ys at tem pt t o destr oy the m ilitia, in order to r ais e a n a rm y upon th eir ruin s. This was actually done by Great Br itain at the commen cement of th e lat e revolu tion. Th ey use d ever y means in their power to prevent the establishment of an effective milit ia t o th e ea st wa rd . Th e a sse mb ly of Massachusetts, seeing the rapid pr ogress th at adm inist ra tion we re m akin g, D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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The above passages from J ustice Story were quoted by an 1871 Tennessee Supr em e Court opinion as authority for the exact point that the Second Amendm ent, in order to secure a milit ia, gua ra nt ees a genera l righ t of individuals to have weapons.119 Story concluded by contrasting the strong right in America with the weak one in England:
to divest them of their inheren t privileges, endeavored to counteract th em by the orga nization of the m ilitia, but t hey were always defeated by the in flu en ce of the crown. Id. at 220. Rep. Seney then asked whether ther e was an issue before the committee of the whole. Rep. Gerry [r]eplied, that he mean t to make a motion, as he disapproved of th e words as they stood. He then proceeded, No attempt s tha t th ey made, were successful, unt il they engaged in th e stru ggle which emancipated th em at once from their t hra ldom. Now, if we give a discretionary power to exclude those from m ilitia d ut y who have religious scruples, we may as well make no provision on this head; for this reason he wish ed the words t o be altered so as to b e con fined to persons belon gin g to a re ligiou s se ct, s cru pu lous of bearing arms. Id. Rep. J ackson m oved th at an exemp tion from militia dut y be gra nt ed “upon pa ying an equivalent to be est ablis hed by law.” Id. at 221 (Lloy d’s u se of “f” for “s” changed to reflect modern usa ge). The same materia l is also in House of Representatives Debates of August 17, 1789, reprinted in ORIGIN, supra note 37, at 695-96. Lloyd’s records of Cong re ssi ona l debates were n ot full transcripts, but ra ther his embellished reconstructions of th e spee che s h e t hou gh t m ost in te re st in g; m an y pe rs ons accu sed Lloyd of in accur at e r ep re se nt at ion s of t he debates . S ee Mar ion Tin ling, Thom as Lloyd’s Reports of the First Federal Congress, 18 WM. & MARY Q. 3D 519, 531-33 (196 1). In following pa ges (not cite d by S tor y), the Hou se n ar row ly r eject ed a mot ion t o delete th e ent ire exempt ion for th e religiously scr up ulou s a nd lea ve exem pt ions for pacifists dependent on the beneficence of the legislature. Rep. Gerry then moved to amend the first clause to read “a well regulated militia, tra ined to arms,” in order to ensure th at th e govern men t would not n eglect m ilitia tr ain ing. The motion failed for lack of a second. Rep. Burke moved for an additional amendment, denouncing st an din g ar mi es, an d r equ iring tw o-th irds v ote from bot h houses for a standing a rmy to be raised. The motion was defeated. The H ouse spent the remainder of the day debating the prop osa ls which beca me th e Th ird, F our th , Fifth, an d Sixt h Amend men ts. See 2 LLOYD , supra, at 221-29. As we shall see below, Gerry’s view that the Second Amendment’s overarching purpose was to guar ant ee the su rvival of the sta te m ilitia was widely sha red by nineteenth century courts and commentators. Like Justice Story, most of the courts and comm en ta tor s s aw not hi ng in cons ist en t i n t he Ame nd me nt ’s pur pos e t o pr ote ct the mi lit ia (e xtol led by Ge rr y, Tu cke r, a nd Ra wle, all of whom were cited by St ory) and the Amendment ’s protection of firearms ownership for personal uses (specifically ment ioned by T uck er an d Ra wle , a nd cit ed by S tor y). 119. See Andrews v. State, 50 Tenn. (3 Heisk.) 165, 183-84 (1871), discussed infra in text a ccompanying notes 210-227. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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§ 189 1. A sim ilar p rov ision in favour of p rot esta nts (for t o
them it is con fined) is to be found in th e bill of rights of 1688, it bein g de clare d, “that t he subjects , wh ich are protestants, may have ar m s for th eir de fen ce su ita ble to t heir cond ition , an d a s allowe d by la w.” But under various pr eten ces t he effect of th is pr ovision has been grea tly n ar row ed; a nd it is a t p re sen t in England m ore nominal than real, as a defensive privilege.120 Here, Story closely t racked Ma dison ’s notes on the Secon d
Amendment, in wh ich Madison contrasted the Second Amendment with the narrower English right, the latter being unsatisfactory because it was confined to Protestants.121
2. The Second Am endm ent in S tory’s Familiar Exposition Story’s 1840 const it ution al la w book int ended for a popular audience, Fam iliar E xposition of the Con stitution of the Un ited States, contains some Second Amendment material not found in the Com m enta ries. The Familiar Exposition removes any possible doubt that Story saw the Second Amendment as guaranteeing an important individual right: The next amendm ent is, “A well-regula ted m ilitia bein g
n ece ss ary t o th e s ecu rity of a free state, the right of the pe ople to ke ep an d b ea r a rm s shall not b e in frin ged .” One of t h e ord inary modes, by which tyrants accomplish their purposes without re sista nce, is, b y disa rm ing the p eop le, a nd m aking it an offence to keep arms, and by substitu ting a regu lar ar m y in the stead of a resort to the m ilitia. The friends of a free governmen t cannot be too watchful, to overcome the dangerous tendency of th e p ublic m ind t o sacrifice, for the sake of mere private conven ien ce, this p owe rfu l check upon th e d esign s of ambitious men. The importance of this article will scarcely be doubted by any pe rs ons, w ho hav e d uly r eflect ed upon the subject. The militia is the na tural defence of a free country against sudden foreign invasions , dom est ic insur re ction s, and dom est ic usurpations of power by rulers. It is against sou nd p olicy for a free people to keep up large military esta blishments and standing ar m ies in tim e of pe ace , bot h from th e en orm ous expenses, with which they are attended, and the facile means,
120. 3 STORY, supra note 106 , a t 7 47 (footn ote s om it te d). 121. See Madison, supra note 37. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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which th ey a fford to a m bit ious a nd u npr inciple d r uler s, t o subvert th e gove rn m en t, or tr am ple u pon th e r igh ts of th e people. The right of the citizens to keep and bear arms has jus tly been considered, as t h e p alla diu m of th e lib er ties of a re pu blic; sin ce it offers a strong moral check against the usurpation and arbitrary power of rulers; and it will gener ally, even if these are successful in the first instance, enable the peop le to r esist an d t riu m ph over th em . And yet , th ough t his truth wou ld se em so clea r, a nd th e im por ta nce of a we ll- regulated m ilitia would seem so unden iable, it cannot be disguised, th at am ong th e Am er ican peop le th er e is a grow ing in diffe re nce to any system of m ilitia dis ciplin e, a nd a st ron g dis pos ition , from a sense of its b ur den s, to be rid of all regu lation s. How it is pr act icable to k eep th e pe ople d uly arm ed wit hou t some organizat ion, it is difficult to see. Th er e is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thu s gr ad ua lly undermine all the protection intended by this clause of our National Bill of Rights.122 Can any fa ir -min ded r ea ding of J ust ice S tory support
Henigan’s position that the federal government has the unquestioned constitutional authority to outlaw the possession of fir ea rms in the U nit ed St ates? Or wou ld Story be moan Henigan’s organizat ion—whose members were never required by their state governments to possess arms and to learn how to use them in militia dr ill—as fulfilling Story’s fears “that indifference may lead to disgust, and disgust to contempt”? One of Henigan’s centra l err ors is his “either/or” view of the milit ia. Story saw th e milit ia a s a defense “again st . . . domest ic insur rections.”123 Henigan finds t his in su rrect ion -su pp ression view to be “itself inconsistent with the notion that the militia is the armed citizenry poised to engage in domestic insur rection.”124 But Story also exulted that when “citizens” are
122. J OSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 264-65 (1842) (quotin g U.S CONST. am en d. I I). 123. Henigan, Arms, Anarchy, supra note 2, at 120. 124. Id. How can the militia be a collection of citizens wit h t he const itu tiona lly guara nteed right to engage in armed resistance against t heir governmen t if th e Const itution itself gran ts Con gress th e power t o call out t he m ilitia “t o execute the laws of the Union [and] suppr ess insur rections . . . .”? The Con st itu tion cann ot view th e milit ia both as a mea ns by which government can suppress insurrection and as an instrument for insurrection against the D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1397 armed, they can resist usurpation; the right to bear arms allows the “people to resist and triumph over” their oppressors. Indeed, J ust ice S tory explicit ly p romoted the dispersion of armed force in a society as facilitating needed changes in government.125 Nor was violent resistance to tyranny an abstract notion to Story; his father had been one of the Indians in th e Boston Tea Pa rt y.126 The notion that the American people could be trusted both to suppress illegitimate insurrections and to overthrow tyranny may seem self-contra dictory to lat e twentieth-century American antigun lobbyists. But it was an obvious t ru th to J ustice Story.127
government . It must be one or the other. Id. at 115. Henigan ignores the fact that his s ta te ’s righ t t he ory im plie s a rig ht of state government s to revolt against t he federal gover nm en t. He ni ga n’s t he ory (if h e actu ally believed it as a ma tt er of constit ut ional in terpretat ion, rather than as a defense against the Sta ndar d Model) would thereby represent post hoc jus tificat ion for th e Confede ra te t heor y of secession in t he Civil War . S ee Lun d, Past and Future, supra note 1, at 31-32 n.72. 125. In the next place, the actual m oral and int ellectual power, and even ph ysi cal power, of the state in its presen t organizat ion, may be so combined in the st ructu re of the government , that they ma y present insu pera ble barriers to an y chan ge. If, for instance, the whole of the privileged classes shou ld happen to be the only edu cated pers ons in th e na tion; if th e whole pr ies th ood shou ld depen d upon th e govern men t for its influence and support, and its exclusive patronage and privileg es; if th e wh ole we alt h of the comm un ity sh ould be lod ged in a few h an ds, an d t hos e few should be the ver y h ea ds of the government; if the military power should be so organ ized, th at it coul d s car cely fi nd th e m ea ns , or pos sess th e power , t o act except under the existing arrangements;—in any, and in all of these cases, it is easy to perceive, that th ere w ould be im men se difficulties in introducing any fundamental and salutary change. It could scar cely tak e pla ce bu t u pon som e gene ra l conv uls ion, which could break asunder all the comm on ties of society. Joseph Stor y, Natural Law (1836), reprinted in MCCLEL LAN , supra note 79, at 318-19. 126. See MCCLELL AN, supra note 79, at 6. Like m an y other legal a na lysts of his era, Story believed in a n atu ral-law right to self-defense since “self-preservation” was one of th e du ti es th at ea ch m an na tu ra lly h ad to h im self. “[A] ma n h as a p er fect right to his life, to his persona l libe rt y, a nd to h is p rop er ty ; an d h e m ay by for ce assert and vindicate those rights against ever y aggr essor .” Story, supra note 125, at 314-15. 127. As Alexander Ham ilton wrote: If the federal government should overpass the just bounds of its authority and make a tyrannical us e of it s p owe rs , t he pe ople , wh ose cre at ur e it [th e Constitution] is, must appeal to the standard they have formed, and take such mea sur es to r edre ss t he in jury don e t o the Constitution as the exig en cy ma y sugges t a nd pr uden ce just ify. THE FEDERALIST NO. 33 (Alex an de r H am ilt on). H am ilt on al so p re dict ed th at if t he D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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3. The federal militia powers in S tory’s Commentaries Story’s treatise also contained an extensive section on the milit ia powers in Articles I and I I of t he Const it ution .128 Story extolled the militia and explained that while the posse comitatus (the able-bodied males of the county subject to the sheriff’s call to enforce the la w) would suffice for main ta ining law an d order in most situa tions, there were some circumstances in which either a militia or a standing army would be necessar y.129 Story dispar aged anti-federalist fears about granting federal power over the militia. He noted that these fears “produced some proposition s of amendment in the state conventions, which, however, were never du ly r atified, and h ave long sin ce ceased to be felt , as ma tt ers of gener al concer n.”130 Here, Story directly undermined Henigan’s theory of the Second Amendment. Henigan claims that the Second Amendment was a restraint on the federal government’s militia powers.131 Story claims that none of the proposals for restrictions on federal militia powers were ever ratified. Story then discussed in great detail the division of federal and state powers over the militia. He suggested, “If congress did not choose to arm, organize, or discipline the militia, there would be an inherent right in the states to do it.”132 In support of this proposition, Story cited Houston v. Moore, Rawle’s treatise, Tucker’s Blackstone, a nd variou s p ortion s of E lliot’s Debates.133 While Story’s dissent in Houston v. Moore had suggested that th e Second Amendmen t, if relevant at all, would also support this proposition, Story did not in his Com m enta ries cite the Second Amendment for support of state militia powers.
federal government at tempted to use th e milit ia to impose t yra nn y on reca lcitra nt states, “whither would the militia” march itself “but to the seat of the tyrants, who had meditat ed so foolish as well as so wicked a project; to cru sh t hem in their imagined intrenchm ents of power and to make them a n example of the just ven gea nce of a n a bu s ed a n d i n ce n s ed pe op le ?” T HE FEDERALIST NO. 35 (Alexander Ha mi lt on). 128. See 3 STORY, supra note 106, at 81-95, §§ 1194-1210. 129. See id. at 81, § 1196. 130. Id. at 82, § 119 7 (foot note om it te d). 131. See Eh rm an & Hen igan , supra note 2, at 7. 132. 3 STORY, supra note 106, at 85, § 1202. 133. See id. at 85 n .5 & 86 nn.1-2, § 1202. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Story went on to define other sta te/feder al militia boundaries; he noted that when the militias were not in federal service, Congress had no power to discipline and train t hem, such power being “exclusively vest ed in th e st at es.”134 For this proposition, Story cited Federa list 29 and the Tucker and Rawle treatises (again, not parts dealin g with the Secon d Amendment).135 The treatise continued for eight more section s to discuss va rious st at e/federa l militia issues, su ch as the power to call th e milit ia into ser vice, t o govern the m ilitia , t o court- martial, and to command the militia. Never once did St ory hin t that the Second Amendment had any relevance to these issues. If, as Henigan claims, Story read the Second Amendment the way Heniga n does, it is inexplicable how Story’s treatise could min ut ely dissect the boundaries of state/feder al m ilitia powers wit hout once m en tion ing the Second Amendment. The only plausible int erpret at ion of Story’s trea tm ent of the m ilitia in his Com m enta ries is that pr opos ed by t he Standa rd Model of the Second Amendment, in which the Second Amendm ent does not reduce the scope of the Congressional m ilitia powers in Article I, or the Presidential militia powers in Art icle II.
E. Other Pre-1850 S ources 1. Henry S t. George T ucker Henry St. George Tucker was the son of St. George Tucker, author of Tucker’s Blackstone.136 The younger Tucker served as U.S. Represen tative from Virginia (1815-19 ), as President of the Vir gin ia Su pr em e Court,137 and as law professor at the University of Virgin ia (184 1-45 ).13 8 He declined President
134. Id. at 87, § 1202. 135. See id. at 87 n .1, § 1202. 136. See David Cobin & P au l Fin kelm an , Introduction to 1 HENRY ST. GEORGE TUCKER, COMMENTARIES ON THE LAW OF VIRGINIA: COMPRISING THE SUBSTANCE OF A COURSE OF LECTURES DELIVERED TO THE WINCHESTER LAW SCHOOL, at i (The La wbook Exchange, Ltd. 1998) (3d ed. 1846 ). He nr y St . Geor ge Tuck er wa s n ot the literal “son” of St. George Tucker. Henry was actually the child of a distant Bermuda re la ti ve. At an ear ly age, h owever, H enr y went to live with St. George Tucker, who raised him, but neve r form ally a dopte d him . See Armiste ad M. Dobie, Hen ry S t. G eorge T uck er, in DICT. AM. BIO., supra note 90. 137. Under Tucker’s leadersh ip, the Virginia Court–in grea t contrast to other Southern cour ts of th e t im e–oft en ru led in fa vor of sla ves wh ose manu mission had been legally ch allen ged. See Cobin & F ink elma n, supra note 136, at xxviii-xxix. 138. See Car rin gton , supra note 19, at 333 n.1. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Jackson’s offer to ser ve as United Stat es Att orney Genera l.139 In 1831, he wrote a three volume treatise Comm entaries on the Law of Virginia.140 Although he followed Blackstone’s organiza tion , th e tr eat ise wa s entir ely Tucker’s own, and it represented an importan t step forwa rd in t he development of distinctly Amer ica n la w. T his trea tise “wa s s tanda rd fa re for aspiring lawyers”141 and was “the prim ary r eferen ce source for the bar of Virginia” until the Virginia Code was adopted in 1850.142 Tucker had created the “vade mecum143 of the bar of Virginia . . . . It was recognized by the bar of Virginia, and in many of the Sou ther n St ates, a s t he m ost va lu able text -book for students and lawyers then in existence.”144 Tucker’s work “established the standard for American tr eatise writing, helped organize American law, and provided access to it for attorneys dist an t from law librar ies.”145 Explaining “the principal absolute rights of individuals,” Tucker wr ote: [C]ertain protections or barriers have b een er ect ed wh ich serve
to mainta in inviola te th e t hre e p rim ar y r igh ts of per son al security, personal liberty, an d p riva te pr oper ty. T he se m ay in America ma y be said to be: 1. Th e Bill of Rights an d w rit te n Con st itu tion s . . . . 2. Th e r igh t of bea rin g a rm s—w hich wit h us is not limited and restrained by an ar bitr ar y sys tem of gam e la ws, as in England; bu t is pr act ically en joyed by ever y citizen, a nd is among his most valua ble privileges, since it furnishes the means of resisting, as a freeman ought, the inroads of usurpation. 3. The right of ap plying to th e cou rt s of ju st ice for re dr ess of injuries.146
139. See Dobie, supra note 136. 140. TUCKER, supra note 136. 141. Warren M. Billings , Seventeenth-Century Virginia Law and Its H istorians, With an Accom pany in g Gu id e to S our ces, 87 L. LIBR. J. 556 , 55 8 (19 95). 142. Cobin & Fin kelm an , supra note 136, a t v. 143. A small book or m an ua l carr ied a s a r efere nce book. See 2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 353 8 (3d ed . 19 93). 144. 1 TUCKER, supra note 41, at 807. 145. Cobin & Fin kelm an , supra note 136. 146. 1 TUCKER, supra not e 13 6, a t 4 2-43. In oth er wr iti ngs, t he youn ger Tucker extolled th e na tu ra l righ t t o reform or ab olish t he gover nm ent , and the natural right to self-defens e. See HENRY ST. GEORGE TUCKER, A FEW LECTURES ON NATURAL LAW 10-11, 95-99 (1844 ); HENRY ST. GEORGE TUCKER, LECTURES ON GOVERNMENT 37 (1 844 ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Tucker cont inued, qu oting Blacks tone’s form ula tion of the En glish right to arms. Tucker added that this right “is secured with us by Am. C. U. S. art. 4.”147 (Lik e some ot her wr it er s of the period, Tucker numbered the amendments as they were when sen t t o the st at es for r at ification by th e first Congress.) When hu ma n r ight s wer e violat ed, Tu cker concluded, the citizen was entitled first to justice in the courts, “next to the righ t of petit ion in g for redress of grievances; and, la st ly, to the righ t of having and using arms for self-preservation and defence.”148 Wh ile all of t he r igh ts Tucker descr ibed wer e “our birthright to enjoy entire,” they could be subject to “necessary restra int s” which were “gentle and modera te.”149
2. Benjamin Oliver Benjamin L. Oliver was “a writer of law books, a noted chess player, and son of a former Governor of Massachusetts.”150 His 1832 The Rights of an American Citizen contained a cha pter ent itled “Of the r igh ts r eser ved to the people of the U nit ed St ates; not bein g gr anted eit her to the genera l government, or the state governments.” This chapter explained the Second Amendment “right of the citizens to bear arms” as making it possible for a militia to comba t in va sion, insurrection, or usurpation.151 An 1822 Kentu cky decision, Bliss v. Commonwealth, interpreted the state’s constitution to find a law against carrying concea led weapon s (t he fir st Amer ica n weapon s control law of genera l applicability) to be un constitu tional.152
147. 1 TUCKER, supra note 136, at 43. 148. Id. 149. Id. 150. Ph ilip A. Hamburger, Natu ral Rights, Natural Law , and Am erican Constitutions, 102 YALE L.J . 907, 953 n .124 (19 93); see also BENJ AMIN L. OLIVER, THE LAW SUMMARY: A COLLECTION OF LEGAL TRACTS ON SUBJECTS OF GEN ERAL APPLICATION IN BUSINESS (2d e d., Fr ed B. R oth ma n & Co. 1 995 ) (183 1). 151. BENJ AMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN; WITH A COMMENTARY ON STATE RIGHTS, AND ON THE CONSTITUTION AND POLICY OF THE UNITED STATES 174 (1832). The book was cited by the dissent in Harm elin v. Michigan, 501 U.S. 957, 1009-10 (1991) (White, J., dissenting) for th e proposit ion th at th e Eigh th Amendment forbids punishment s disproportionate to the underlying offense. 152. See Bliss v. Com mo nw ea lt h, 12 K y. (2 Lit t. ) 90 (1 822 ). If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to t he act , wh et he r i t b e a n a ct D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Oliver thought that carrying concealed weapons, “if it is really unconstitutional to restrain it by law, ought to be discoun tena nced,” since concealment allowed an antagonist to surprise a victim .153 Still, “[t]here are without doubt circumstances, which may justify a man for going armed; as, if he has valuable propert y in his custody; or, if he is tr avelin g in a dangerous part of the country; or, if his life has been th reat ened.”154
3. Jam es Bayard James Bayard’s A Brief Exposition of the Constitution of the United States was in ten ded a s “a text -book for the in st ruction of youth.”155 The book was adopted by some colleges and seminaries and was praised by Chief Justice John Marshall, Justice Joseph St ory, Chan cellor James Kent, “and other dist inguished jurists,” accor ding t o the a uthor.156 The small book took the reader through the Constitut ion clause by clause, offering short expla na tions of the meanin g an d ba ckground of each provision. Bayard wrote that the Second Amendment “secures the righ t of the people t o provide for th eir own defence.”157 This
regulating th e ma nn er of bear ing arm s or a ny oth er, t he conse quen ce, in re fer en ce to the constitution, is precisely the same, and its collision with that instrumen t equally obvious. Id. at 92. “For, in prin ciple, the re is n o difference bet ween a law proh ibiting th e wearing concealed arms [sic], and a law forbidding the wearing such as are exposed; and if the former be unconstitu tional, the latter mu st b e so like wise.” Id. “[I]f an y por tion of that right be impaired , immaterial how small the part may be, and immaterial the order of time at which it be done, it is equa lly forbidden by th e const itu tion.” Id. at 93. 153. OLIVER, supra note 151, at 176-78. 154. Id. at 178. Anoth er pa ssa ge descr ibed self-defens e as a na tu ra l right : There are some oth er r ight s, which ar e res erved to th e people, t hough not mentioned in the genera l con st it ut ion . Am ong t he se is t he ri gh t of s elf- defence, in cases where t he dan ger is so imminent , that the per son in jeopar dy, may suffer irre pa ra ble in ju ry , if h e wai ts for th e p rote cti on of th e laws. . . . as the compact between him and society is mutual, if society is un able to p rote ct h im , h is n at ur al ri gh t r evi ves to p rote ct h im se lf. Id. at 186. Also, “Of those rights wh ich are u su all y ret ain ed i n or gan ized societ y, . . . [t]h e fi r s t a n d m os t im po r t a n t of t h es e r ig h t s , i s t h a t of s el f-d ef en ce .” Id. at 40. 155. J AMES BAYARD, A BRIEF EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 4 (Fr ed B. R oth ma n & Co. 1 992 ) (2d e d. 1 845 ). 156. Id. at 3. 157. Id. at 147. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1403 short statement is not, in isolation, necessarily inconsistent with the Standa rd Model or wit h the a nti-individual theories. One could read the lan gua ge, Stan dard Model-st yle, as “the Amendment guar antees the pre-existing right of people to protect them selves w it h arms.” Or one cou ld, with a little more effor t, read Bayard’s language Henigan style: “the Amendment protects state governments from federal int erference, so that th e people ma y be defen ded by stat e militia s.” Any confusion arisin g fr om Ba ya rd’s ter seness on the Second Amendment is clarified by his discussion of the Third Amendment, which pr ohibit s qu ar terin g tr oops in priva te homes under most circumstances.158 Bayard detailed its historical background: “The people of this country, while under the dominion of England, had felt t oo sensibly the evils ar ising from th e want of arm s . . . not to take every precaution against th eir recurrence.”159 Formally, Ba ya rd’s referen ce t o “th e evils arisin g fr om the want of arms” makes no sense in a Third Amendment discussion. The Third Amendment keeps soldiers out of homes, but does n othing to pr event “th e want of ar ms.” Historically, however, the Second a nd Thir d Amen dment s wer e closely linked, and they a re pla ced next to ea ch other because bot h were int ended as checks against th e danger s of milita ristic tyranny on the part of the central governmen t. The disarmament of individual cit izens, the r epla cem en t of th e milit ia by a sta nding a rm y, an d the abu ses of a stan ding ar my (includin g the forced quartering of soldiers in private homes) were closely lin ked to the a bu ses of Kin g Ch arles I, w hich precipitated th e En glish Civil War,160 whose history the Americans knew well—especially since similar abuses h elped precipitate th e Amer ican Revolut ion. As the Founders also knew from rea ding Mon tesqu ieu and ot her s, the quarter in g of
158. See U.S. CONST. am end. I II: “No Soldier sh all, in time of peace be quart ered in an y hous e, wi th out th e con sen t of t he Own er , nor in time of war, but in a man ner to be pr escrib ed by la w.” 159. BAYARD, supra note 155, at 148. 160. See LOIS G. SCHWOERER, “N O STANDING ARMIES!” THE ANTIMILITARY IDEOLOGY IN SEVENTEEN TH-CEN TU RY ENGLAND (1974); William S. Fields & David T. Har dy, Th e Third Am endm ent and the Issue of the Maint enance of Stand ing Ar m ies: A Legal History, 35 AM. J. LEGAL HIST. 393 , 40 2-13 (199 1); MALCOLM, supra note 1, at 6-15. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1404 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 soldiers was one of the major abuses perpetrated against the disarmed French Huguenots by Louis XIV in the 1690s.161 Thus, it was not unreasonable for Bayard to address the problems of centr alized militarism in one u nified d iscuss ion . Knowing “the evils arising from the want of arms,” the Americans took “every precaution aga inst t heir r ecur rence,” and it is th erefore impossible to read Bayar d as su pportin g Henigan’s theory t ha t t he federal government may constitutionally disarm the American people.
4. Fran cis Lieber One of the most important of America’s early political scientists was Fra ncis Lieber , a German immigrant. He taught history, political science, an d pu blic law at South Ca rolina College, Columbia College , a nd Colu mbia La w School. H is code of military conduct for land warfare, w rit ten for the U nion Army durin g the Civil War , later becam e pa rt of the Geneva and Hague Conventions.162 Lieber’s main contribution, however, was his analysis of how a society could create complex instit utional structures to promote civil liberty; the fullest exp osition of his political thought is found in his book On Civil Liberty and S elf-Gov ern m ent, first published in 1853.163 In the pen ult ima te par agr aph of a cha pter discussing control of standing arm ies and the Third Amendment, Lieber wrote: Akin to the last-m en tioned gu ara nte e, is th at w hich
secures to every citizen the right of possessing a nd bearing
161. See Kat es, S elf-Pr otecti on, supra note 1, at 100 (“As Englishmen and Ame ri can s were well aware from their reading of Bodin, Beccaria and Montesquieu, the Huguenots had been rendered incapable of resisting either individually or as a group by t he Con ti ne nt al poli cy of di sa rm in g a ll b ut th e Ca th olic n obil it y.”). [T]h e most at rocious–and effective–were the dr agon na des , or b illet ing of dragoons on Hu guen ot fam ilies with encour agem ent to beh ave a s viciously as th ey wished. Not oriously r ough a nd u ndisciplined, the en list ed t roop s of the dragoons spread ca rn age, bea tin g an d robbin g th e householders, r apin g the women , sma shin g an d wr eckin g an d lea ving filth . . . . BARBARA W. TUCH MAN , THE MARCH OF FOLL Y 21 (198 4). 162. See Ste ven Ala n Sa mson, Francis Lieber on the Sources of Civil Liberty, 9 HUM ANIT AS 1-2 (1996) (visited Mar . 16, 1998)
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arm s. Our constitution says: “The right of the people to keep and bear arms sha ll not be infringed upon;” and the [English] Bill of Rights secur ed th is right to every protestant. It extends now to every English subject. It will hardly be necessary to add, tha t laws prohibit in g se cre t w ea pon s, or th ose wh ich necessarily endanger th e lives of the citizens, are no infringement of libert y; on t he cont ra ry, liber ty r est ing ne cessa rily on law, and lawful, that is, peaceful state of t he citizens, libert y it self re qu ire s t he su pp re ssion of a re turn to force an d violence among the citizens—a fact by no means su fficien tly we igh ed in re cen t t im es in Am er ica.164 Lieber recognized the individua l right of “every citizen” to bear arms; he did not even quote t he m ilit ia clause of th e Second Amendment. Unlike Tucker, Rawle, and Story, who distinguished the br oad Am er ican righ t to ar ms fr om its feeble En glish ancestor, Lieber saw the English right as robust and identical to the American right. (Lieber’s general theme was to contrast th e strong rights in Anglo-American law with the weak or non-existent rights in France and the rest of Europe.) The endorsement of concea led weapon s contr ol laws, followed by th e complaint about American attitudes, might reflect the fact that outside the Southeast and the state of Indiana, there were no concealed weapons laws or any oth er sort of gun control at all. And, as Lieb er ruefu lly recogn ized, Amer ica ns wer e oft en too quick to resort t o priva te revenge, rather than to the judicial system.165
164. LIEBER, supra note 163, at 120 (quoting U.S. CONST. amend. II). Lieber’s Secon d Amendment quotation wa s, of cour se, slig ht ly in er ror . Th e wor d “up on” is n ot part of the Am end men t. See also Fr an cis Lieber , Anglican and Gallican Liberty, in 2 THE MISCELLANEOUS WRITINGS OF FRANCIS LIEBER 373-75 (David C. Gilma n ed ., 1880); Samson, supra note 162 (discuss ing the fact th at Lieber listed th e righ t t o arms and the ri gh t t o res ist un la wfu l a ut hori ty as am ong t he es se nt ia l r igh ts of a society in wh ich civil lib er ty is s ecu re ). A sout her n r eviewer of anot her Lieber book, Ma nu al of Poli tica l E th ics (1839), used the review to defend slavery under t he Constitution; the reviewer included the right to arm s in a litan y of individual rights that the Constit ution guar ant eed to free men: To the people, the habeas corpus act, th e t rial b y ju ry, th e exem pt ion fr om excessive bail, and the quar tering of soldiers, and the right to keep and bear arms, was secured; but these privileges only applied to fre e pe ople, and not to per sons h eld to s er vice or labor in one S ta te, wh o might escape int o anoth er . . . . Lieber’s Poli tica l E th ics, 24 S. Q. REV. 464, 481 (Oct . 1847). 165. For the sak e of completenes s, two oth er t rea tises writ ten before th e Civil D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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5. Elliot’s Debates Jonathan Elliot’s 1836 compila tion, The Debates in the Several State Conventions on the Adoption of the Federal Con stitution, is still the major documentary source for its subject. Elliot’s “Digest of the Constitution” indexed the various Constitutional provisions. U nder th e ind ex heading “Rights of the citizen declared to be—,” th er e is a lis tin g for “To keep and bear arms,” and other rights from the first nine amendments. In contrast, the Tenth Amendment, unquestionably a “states’ right,” was not included in the hea ding “Righ ts of t he Citizen.”166
War should be ment ioned. Maur ice Richter’s 1859 The Mu nicipalist examined the rela tions hip between loca l a nd fed er al pow er . H e a rg ue d t ha t m an y pr ovis ion s of t he Bill of Rights would make sense in Eu rope as rest raint s on central power, but that these provisions were of no use in the United Sta tes, since the national governmen t had no affirmative power to violate those rights. Thus, for the Second Amendment, Richter wrote, “Good for Europe. We have read t he dis positions of the const itu tion [in Article I] about th e milit ia. Congress has no power to legislate on the keeping and bearing of a r m s , e xc ep t in t h e D is t r ic t of C ol u m bi a .” M AURICE A. RICHTER, INTE RNAL RELATIONS OF THE CITIES, TOWNS, VILLAGES, COUNTIES, AND STATES OF THE UNION; OR THE MUNICIPALIST: A HIGHLY USEFUL BOOK FOR VOTERS, TAX-P AYERS, STATESMEN, POLITICIANS AND FAMILIES 133 (N.Y., Ross & Tousey, 2d ed. 1859), avail abl e online
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6. Webster’s Diction ary The legitim acy of the American ver sion of the En glish language found its truest champion in Noah Webster. Webster’s father served as a captain on the “alarm list” of the militia near his Hartford farm,167 and the family strongly supported the Revolu tion . Noah Webster’s first major work was the American Spelling Book (1783), of which millions of copies were event ua lly printed. He published his first dictionary in 1806, the Compendious Dictionary of the English Langu age.168 But his revered classic came in 1828, the t wo-volume American Dictionary of the En glish Langu age.169 By exa min in g t he Secon d Amendment word-by-word, as defined by Webster, we see the mean ing of th e Amen dment’s words in t he nin eteenth cent ur y. “Regulated” meant “[a]djusted by r ule, met hod or form s; put in good order ; subjected to rules or r est rictions.”170 As Randy Barnett has observed in rela tion to the Congressional power to “regulate” interstate commerce, to regulate something means to ma ke it more regular—not to prohibit it .171 “Militia” was The body of soldier s in a state en rolled for d iscip lin e, bu t n ot
engaged in actual service excep t in em er ge n cie s; a s distinguished from regular troops, whose sole occup at ion is war or milita ry ser vice. Th e m ilitia of a coun tr y are th e a ble bodied men organized into companies, regiments and brigades, with officers of all grades, and required by law to attend
167. Kemp Mallon e, Noah Webster, in DICT. AM. BIO., supra note 90. 168. See MARSHALL SMELSER, THE DEMOCRATIC REPUBLIC : 1801-1815, at 32 n.27 (196 8). 169. NOAH WEBSTER, AN AME RICAN DICTIONARY OF THE ENGLISH LANGUAGE (182 8). 170. 2 Id. at 54. Simila rly, George Cabot —a Federa list and one of the richest men in New England—wrote that society should function like a “well regulated family” with “each one lea rn ing his proper place and keeping to it.” Robert E. Shalhope, Individua lism in the Early R epublic, in AME RICAN CHAMELE ON: INDIVIDULAISM IN TRANS-NATIONAL CON TE XT 66, 67 (R ichard O. Cur ry & Lawr ence B. Goodheart eds., 1991) (citing DAVID H. FISCHER, THE REVOLUTION OF AME RICAN CONSERVATIVISM (1965)). Thus, in “a well regulated milit ia,” th e milit ia-men would be ab le t o ma rch an d de ploy for comb at in p rop er form ations, with each militia-man knowing his place. 171. See Ran dy E. Ba rn ett , N ecessa ry a nd Prop er, 44 UCLA L. REV. 745, 775 (1997 ). Or as Congressm an Daniel Webster explained, regar ding federal power to “regulate” int ern at ional comme rce, “To regulate . . . could never m ean to des tr oy.” ROBERT V. REMINI, DANIEL WEBSTER: THE MAN AND HIS TIME 94 (199 7). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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military exer cise s on cer ta in da ys on ly, b u t a t oth er tim es left to pursu e their usual occupations.172
“Necessa ry” mea nt “indispensibly requisite . . . .”173 “Securit y” was “[p]rotection; effectual defense or sa fet y fr om danger of an y kin d.”174 “Free” meant “[i]n govern m ent, not enslaved; not in a state of vassalage or dependence; subject only to fixed laws, made by consent, and to a regular administration of such laws; not subject to the arbitra ry will of a sovereign or lord; as a free stat e, na tion, or people.”175 “State” meant A polit ica l bod y, or bod y p olit ic; th e w h ole b ody of people
united under one governm ent, wha tever may be the form of government. . . . More usually the word s ign ifies a politica l body gove rn ed by r ep re senta tiv es . . . . In th is sen se, state has sometimes more immediate reference to government, somet imes t o the p eople or comm un ity.176
Thus, “state” is not just the “government.” The Secon d Amendment aims to protect the secu rit y of a free Amer ica n people, not just to protect their governmen t. “Right” was a “[j]ust claim; immunity; privilege. All men have a right to secure enjoyment of life, liberty, persona l safety, liberty, an d pr operty. . . . Rights ar e na tu ra l, civil, political, religious, persona l, an d pu blic.”177 “People” meant “[t]he body of persons who compose a community, town, city or nation. We say, the people of a town; the people of London or Paris; the English people.”178 “Keep” was “[t]o hold; to retain in one’s power or possession.”179 “Bear” meant firstly, “[t]o support; to sustain; as, to bear a weight or burden”180—a mean ing tha t does not fit with the
172. 2 WEBSTER, supra note 169, at 15. 173. 2 id. at 21. 174. 2 id. at 66. 175. 1 id. at 87. 176. 2 id. at 80. 177. 2 id. at 59. 178. 2 id. at 32. 179. 2 id. at 2. 180. 1 id. at 19. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1409 context of the Second Amendment. The second and third meanings of “bear” are much more congruent, however: “To carry; to convey; to support and remove from place to place” and “[t]o wear; to bear as a mark of authority or distinction; as, to bear a sw ord, a ba dge, a name; t o bear arms in a coat.”181 It is sometimes argued that “bear” has an exclusively military connotation, so that the right to “bear” arms refers only to bearing them in militia service.182 But none of Webster’s definitions for bear contain such a narrow construction. And rather significantly, we know t hat “bea r” was u sed wit h a br oad meaning in one of the key d ocumen ts t hat ga ve b ir th to the Second Amendment: the minority report from the Pennsylvania ra tifying convention. The minority demanded constitutional protection for the right of the people “to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing gam e.”183 Hu nt ing—“killing gam e”—is obviously a personal, non-militia pur pose for which one could “bear a rm s.” Further, the stat e constitu tions of Missour i (1820), India na (181 6), Ohio (1802), Kentucky (1792), and Pennsylvania (1776) all recognized a r ight of citizens to “bear a rm s” in the “defense of th emselves an d the stat e.”184 Wh ile arms-bea rin g for defense of “the state” would be in a militia context, citizens bearing arms merely for “defense of themselves” would merely be defending themselves against criminal attack. Hence, the phrase “bear arms” did n ot connote th at ar ms-bear ing could only occur while in active militia service. In a 1998 ca se, t he Supr em e Court wa s ca lled u pon to construe th e meanin g of th e phra se “carries a firearm ” in a mandatory sentencing statute. While the majority opinion did not refer to the Second Amendm ent, Justice Ginsburg, writing for four diss en ter s, used t he Secon d Amendment to help expla in the phrase:
181. Id. 182. S ee, e.g., Aym et te v. S ta te , 21 Te nn . (2 H um .) 15 4, 1 61 (1 840 ). 183. The Address and Rea sons of Dissent of the Min orit y of th e Con ven tion of the Stat e of Pennsylvan ia to th eir Constit uent s (Dec. 18, 1787), reprinted in ORIGIN, supra note 37, at 154, 160. 184. See discussion infra note 190. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Surely a most familiar mea ning is, a s t he Const itu tion ’s
Se cond Amendment (“keep and bear Arms”) (emphasis added) and Bla ck’s La w D iction ar y, at 2 14, in dica te : “wear , bea r, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed a nd r ea dy for offen sive or de fen sive act ion in a ca se of conflict wit h an oth er pe rs on.”185
Justice Gin sburg’s rea ding of the Second Amendment is thus consist ent with th e reading suggest ed by Webst er’s Dictionary. “Arms” meant “[w]eapons of offense, or armor for defense and protection of the body . . . . A stand of arms consists of a musket, bayonet, cartr idge-box a nd belt , with a sw ord. Bu t for common soldier s a sword is n ot necessar y.”186 Webster’s definit ion offers two useful insights. First, the distinction sometimes dr awn between “offensive” a nd “de fen sive” we apon s is of little value. All weapons are made for offense, alt hough they may be used for defensive pu rpos es (i.e., shootin g someon e wh o is a ttem pt ing to perpetrate a murder). Second, Webster’s dictionary suggests that the “arms” protected by th e Second Amendm ent may include more than just weapons. Th e Am en dm en t may en compa ss “ar mor for defense and pr otect ion of the body.” The defensive a sp ect of arms would be rele va nt to legisla tive pr opos als to pr ohibit non- government possession of bullet-resistant vests. Fin ally, “infringed” meant “[b]roken, violated, tr an sgressed.”187 How would the Second Amendment read if rephrased accordin g to Webster’s dictiona ry? The good or der of able-bodied men required to attend military
exercises on cer ta in da ys b ein g in dis pe nsibly r equ isit e t o th e pr ote ction of a n ot-en sla ved body politic, the ju st cla im of th e body of per son s who compose the United States to retain and wear weapons and arm or shall not be violated.
While hardly as elegant as the Second Amendment, Webster ’s diction ary does point us in th e same direction as do th e legal commentators wh o ar gue t hat the m ilit ia (an essential
185. Musca rello v. Un ited Sta tes , 118 S. Ct . 1911, 1921 (1998) (Ginsbu rg, J ., dissen tin g) (om iss ion s in origin al ). 186. 1 WEBSTER, supra note 169, at 13. 187. 1 id. at 110. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1411 institution of a free society) will only be effective as long as the people are gu aranteed t he owner sh ip of arms. In fact, Noah Webster him self, during the ratification debates, provided a concise summary of why the entire population should be armed: Before a stan ding arm y can rule, the people must be disarmed;
as they ar e in almost every kingdom in Europe. The suprem e power in Am er ica ca nnot e nforce unjust laws by the sword; because the wh ole body of the people a re ar m ed , an d constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.188 In sum, a ll of the pre-1850 sources ana lyzed above—including the leading treatises, the lesser treatises, other books, and the Supreme Court’s Houston case—support the St anda rd M ode l a pp roach to the S econ d Am endment: the Amendment grants an individual right to bear arms.
III. STATE CONSTITUTIONS AND CASE LAW The nineteenth cen tu ry was a fer tile per iod for th e right to bear arms in state courts and in state constitutions. Ma ny of these st ate sources pr ovid e a good deal of useful informa tion about how the Second Amendment was understood. This Part discusses state constitutional texts first and then discusses state case la w. T he purpos e is not to comprehensively survey
188. Noah Webst er, An Exam ination into the Leading Principles of the Federal Constitution , in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES 55, 56 (P au l Leicester Fo rd ed ., Br ookl yn 188 8). Often confused with Noah Webster, but having no relation, was Ma ss ach usetts Senator Daniel Webster, perh aps th e greatest orator of the ninet eenth centur y. Amon g the most fam ous of all Webster’s public speeches was “The Plymouth Ora tion,” which he delivered at P lymouth Rock on December 22, 1820—the bicentennial of the P ilgrim lan ding. Webster, who was an avid hun ter a ll his life, tra ced th e connect ion bet ween th e social conditions created by the Pilgrims and the current condition of American freedom; he emphasized that the social condit ions, a nd not just th e forma l Const itution, wer e es sen tia l in gredi en ts of free dom : “The practical character of gover nm en t d epe nd s oft en on a variety of considerations, besides the abstract fram e of its constitu tiona l organ ization . Among th ese are the condition and tenure of pr oper ty . . . a n a rm ed or un ar me d ye oma nr y.” Further, “[e]ducation, wealth, talent s, are all par ts an d elements of the general a ggregate of power; but numbers, never th eless, const itu te ordina rily th e m ost im por ta nt cons ide ra tion , unless, indeed, there be a m ili ta ry f orce in t he h an ds of th e few, by wh ich t he y can cont rol the ma ny.” Dan iel Webster , Th e Ply m out h O rat ion , Dec. 22, 1820, available in part at
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the nineteenth century arms rights cases,189 but rather to survey state mater ia ls solely as t hey m ay shed light on the federal Second Amendm ent.
A. State Constitutions The texts of nineteenth century state constitutions are worth reviewing for severa l rea sons. First, the lar ge num ber of state provisions suggests that the right to arms was considered an important human right. Of the thirty-six states that were adm itted or readmit ted to the Un ion in th e nin eteenth cent ur y, twenty-eight provided a right t o arms provision in t heir state constitution.190 Several states adopted right to arms
189. Cla yton Cra mer ’s book provides a s uper b sur vey of state firearms const itutional case la w in t he n inet een th cent ur y. See CRAMER, supra note 1. The works of oth er scholars offer useful studies of particular stat es in the n ineteent h cent ur y. See STEPHEN HALBROOK, A RIGHT TO BEAR ARMS: STATE AND FEDERAL BILLS OF RIGHTS AND CONSTITUTIONAL GUARANTEES (1989 ); Robert Dowlu t, Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (19 89); Rob ert Dowlut, The Right to Arms, supra note 1; Robert Dowlut & Janet A. Knoop, State Constitutions and th e Right to Keep and Bear Arms, 7 OKLA. CITY U. L. REV. 177 (198 2); Stephen P. Halbrook, R at ion in g Fi rear m s Pu rch ases an d t he R igh t t o Keep Arm s: R eflect ion s on th e Bills of R igh ts of V irg in ia, Wes t V irg in ia, an d t he U ni ted States, 96 W. VA. L. REV. 1 (199 3); St eph en P. H alb rook , Th e Right to Bear Arm s in Texas: Th e Intent of the Framers of the Bills of Rights, 41 BAYLOR L. REV. 629 (198 9); Glenn Harlan Reynolds, The Right to Keep and Bear Arms un der the Tenn essee Constitution: A Case S tud y in Civ ic Repub lican T hough t, 61 TENN. L. REV. 647 (199 4). 190. Many tha nks t o Eugene Volokh, who compiled th ese pr ovisi ons , an d wh o ha s made th em a vailable at
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their common defence.” Art. I, § 21. The 1865 Constitution, a white su prema cist document, made no mention of a right to arms. The 1868 Con stit ut ion, a Recons tr uct ion docum ent , provide d, “The people shall have the right to bear arms in defe nce of themselves and of the lawful auth ority of the State.” Art. I, § 22. This was modified in 1 885 t o all ow r est riction s on th e ca rr yin g of ar ms : “The right of the people to bear ar ms in defence of themselves, and the la wful authority of the State, sha ll not be infringed, but th e Legislature m ay prescribe the m ann er in which they may be born e.” Art. I, § 20. Georgia: The s ta te’s original cons titut ion ha d no r ight to ar ms, wh ich impelled an 1845 Geor gia Su pr em e Cou rt decis ion striking down gun con tr ol to r ely on th e Se cond Amendment and natu ral law. The 1865 and 1868 Georgia Constitutions did include an arms righ t. 1865: “A well-regulat ed militia, being n ecessa ry t o the secur ity of a free Stat e, the right of the people to keep and bear ar ms sha ll not be infr inged .” Art. I, § 4. 1868: “A well-regulated m ilitia bein g necessary to the secur ity of a free people, the right of the people to keep and bear arms shall not be infringed; but the general ass embly sha ll have power to prescribe by law th e man ner in which ar ms m ay be born e.” Art. I, § 14. The provision took its fina l form in t he 1877 Con st itu tion : “The right of the people to kee p an d bear ar ms s ha ll not be in fringed, but the General Assemb ly shall have power to prescribe the manner in which arms may be born e.” Art. I, § I, ¶ VIII. Idaho: The 1889 statehood Con st itu tion st at ed: “ The people have the right to bear arms for their security an d defense; but the Legislatu re sha ll regulate th e exercise of th is righ t by la w.” Art. I, § 11. Illinois: The s ta te h ad n o right to ar ms u nt il the adopt ion of a new cons titut ion in 1970. Indiana: The right to arms in th e 18 16 s ta te hood con st it ut ion (“Tha t t he pe ople ha ve a right t o bear arm s for the defense of themselves and the State, and that the military shall be kept in st rict subordina tion to th e civil power.” Art. I, § 20) was revised in 1 851 t o st at e: “Th e pe ople sh all ha ve a rig ht to b ea r a rm s, for th e defense of them selves and t he St ate.” Art. I, § 32. Iowa: No provision. Kansas: “The people ha ve the r ight to bear arm s for their defense an d security; but standing arm ies, in time of peace, are dangerous to liberty, and shall not be tolerated, and th e m ilit ar y sh all be in st rict s ub ord ination to t he civil power.” Bill of Rights, art. I, § 4 (185 9). Kentucky: Th e Ke nt uck y Con st itu tion of 1792 pr ovide d: “The right of the citizens to bear arms in defense of themselves and the Stat e shall not be questioned.” Art. XII, § 23. It was changed slightly in 1799 : “That the r ights of the citizens to bear arm s in defense of themselves and th e State shall not be questioned.” Art. X, § 23. An 1850 re visi on addressed a court case from several decades before and specifically authorized restrictions on con cea led ar ms : “That the rights of the citizens to bea r a rm s in defense of themselves and th e Stat e shall not be questioned; but the General Ass embly ma y pa ss la ws to p re ven t p er son s fr om car ry in g con cea led ar ms .” Art. XIII, § 25. The provision took its moder n form in 1891: All men ar e, by nat ur e, free and equal, and have certain inherent and ina liena ble rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. . . . . Seventh: The right to bear ar ms in defense of themselves an d of the State, su bject to the power of the General Assembly to enact laws to prevent persons from carryin g concealed weapons. Bill of Rights § 1. Louisiana: The 18 79 Const itu tion sta ted: “A well regula ted m ilitia being necessary to D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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the se cur it y of a free State, the rig ht of th e pe ople to k eep an d be ar ar ms sh all not be ab ridge d. This sh all not pr eve nt th e pa ssa ge of la ws t o pu nis h t hos e who carry weapons concealed.” Art. 3. Maine: The 1819 Constitut ion stated “Every citizen has a right to keep and bear arms for the common defense; and this right sh all never be questioned.” Art. I, § 16. In 1987, aft er a s ta te cour t d ecision w hich int er pr et ed t he Ma ine pr ovisi on a s recognizing no individ ua l right , the Const itution was amen ded to provide: “Every citizen has a right to keep and bear arms and this right sha ll neve r be question ed.” Art. I, § 16. Michigan: “Every person has a r ight to bear arm s for the defence of himself and the sta te.” Art . I, § 6 (18 35). Minnesota: No provision. Mississippi: The stat e’s first Constitution, in 1817, provided: “Ever y citizen h as a righ t to bear a rms , in defence of himself and the Stat e.” Art. I, § 23. The comma was removed in 1832. Th e 1868 Reconstr uction Const itu tion ch an ged th e wordin g to: “All persons shall have a right to keep and bear arms for their defence.” Art. I, § 15. In 1890, the provision was rewritt en to copy a formulation common in late-19th century rights to a rm s, m ak in g ex pli cit th e m an y pu rp ose s of t he right to arms, and also the authority of th e legisl at ur e t o cont rol con cea led wea pon s: “The r ight of every citizen to keep a nd bear ar ms in de fen se of hi s h om e, p er son , or pr ope rt y, or in ai d of t he civil powe r w he n t he re to legally sum moned, sh all not be called in question, but the legislature may r egulate or forbid carrying concealed weapons.” Art. III, § 12. Missouri: The form used in Mississip pi, Colorado, a nd Mon ta na first a ppea red in th e 1875 Missou ri Con st itu tion : “That the r ight of no citizen to k eep a nd bear ar ms in defense of hi s h om e, p er son an d p rope rt y, or in ai d of t he civil power, when thereto legally sum moned, sh all not be called into question; but nothin g her ein cont ain ed is intended to justify the practice of wearing concealed weapons.” Art. II, § 17. The pr ovisi on re pla ced la ngua ge fr om 1 820: “ That the people have the right peaceably to ass emble for t he ir comm on good , an d t o ap ply t o thos e vest ed w ith th e pow er s of government for redress of grievances by pe tition or r emon str an ce; and t ha t t heir righ t to bear arms in defen ce of t he ms elv es an d of t he St at e ca nn ot b e qu es ti oned .” Art . XIII, § 3. The 1865 Constitution had copied th e 1820 lan gua ge, except t o subst itu te “the lawful aut hority of the St ate” for “the Stat e.” Art. I, § 8. Montana: “Th e r igh t of a ny per son to k eep or bear ar ms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, sha ll not be called in q uestion, bu t n othin g her ein cont ain ed sh all be h eld to per mit the carrying of concealed weapons.” Art. III, § 13. Nebraska: No arm s right provision unt il 1988. Nevada: No provision unt il 1982. North Carolina: Th e 1868 Con st itu tion substantially followed the a rm s provision in the 177 6 Con st it ut ion (“That the people have a right t o bea r a rm s, for th e de fen ce of the State; and, as s ta ndin g armies, in t ime of peace, are dangerous to liberty, they ought not to be kept up; and that th e military should be kept under str ict su bor din at ion to, a nd governed by, the civil power.” Bill of Rights, § XVII) and stated: “A well regulated milit ia b ein g neces sa ry to t he secu rity of a fre e St at e, t he rig ht of the people to keep and bear a rms sh all not be infringed; an d, as s ta ndin g ar mies in tim e of peace are dangerous to liberty, they shall not be maintained, and the milita ry sha ll be kep t u nder str ict sub ordin at ion to, an d govern ed by, th e civ il p owe r. ” Art . I, § 24. I n 1 875, conce ale d we ap ons cont rol w as ad ded : “Noth ing herein contained sha ll justify the practice of carrying concealed weapons, or prevent t he General Assemb ly from enacting penal statutes against that practice.” North Dakota: No right to ar ms u ntil 1984. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Ohio: The original 1802 provision stated “That the people have a right to bear arms for th e d efe nce of them selves and th e stat e; and as st anding a rmies in t ime of peace, are dangerous to liberty, th ey shall not be kept u p, and t hat the m ilitary sh all be kept under strict subordin ation t o the civil power.” Art. VIII, § 20. The language was modernized in 1 851: “ The people have the right to bear arms for their defense and secur ity; but sta ndin g ar mies , in t ime of pea ce, ar e dangerous to libert y, and sha ll not be ke pt u p; an d th e milit ar y sha ll be in s tr ict su bordin at ion to the civil power .” Art. I, § 4. Oregon : “The people shall have the r ight to bear a rms for th e defence of themselves, and the State, but the Military shall be kept in strict subordination to the civil power .” Art . I, § 27 (e na cte d 1857 , a s a rt . I, § 28). Rhode Island: The stat e had no constitution until 1842. The 1842 constitution stated: “The right of the people to keep and bear arms shall not be infringed.” Art. I, § 22. South Carolina: The orig ina l cons tit ut ion h ad no r igh t t o ar ms . Th e 18 68 Con st itu tion added one : “Th e pe ople ha ve a rig ht to k eep an d be ar ar ms for t he common defence. As, in times of peace . . . .” Art. I, § 28. This was revise d in 1895 to mor e closely para llel the Second Amendment: “A well regulated militia being necessary to the security of a fr ee S ta te , th e r igh t of t he peop le t o ke ep and bear a rms shall n ot be infringed. As, in times of peace, armies are dangerous to liberty, th ey shall not be maint ained with out t he conse nt of the Gen era l Ass em bly. Th e m ilit ar y pow er of th e State sha ll always be held in subordina tion to th e civil authority and be governed by it.” Art. 1, § 20. South Dakota: “The right of the citizens to bear arms in defense of themselves and the st at e s ha ll n ot b e d en ied .” Art . VI, § 24 (1 889 ). Tennessee: Th e 18 34 s ta te constitution’s right t o arm s exact ly ma tched th e lan gua ge of the origina l 179 6 const itu tion : “That the freemen of this Stat e have a r ight to keep and to b ea r a rm s for th eir comm on d efen ce.” Art . XI, § 26 . Th e Re cons tr uct ion Con st itu tion added legislative power to control the carrying of ar ms : “That the citizens of th is State have a rig ht to k eep an d t o bea r a rm s for th eir comm on defense; but th e Legisla tu re sha ll have power, by la w, to re gulate t he wear ing of arms wit h a vie w t o pr eve nt cri me .” Art . I, § 26 (1 870 ). Texas: When the Texan nation gained independe nce in 1836, th e Declar at ion of Rights provided: “Every citizen shall have the right to bear arms in defence of hi ms elf a nd the repu blic. The m ilitar y sha ll at a ll time s an d in a ll cases be subordinate to the civil power.” Declara tion of Right s, cl. 14. When Texas joined th e Un ion in 1845, the new Constitution stated: “Every citizen shall have the right to keep and bear arms in law ful d efen ce of hi ms elf or th e St at e.” Art . I, § 1 3. Th e Re cons tr uction Con st itu tion of 1868 decla re d: “Every person shall have the right to keep and bear arms in the lawful defence of h imself or the State, under such regulations as the legislature ma y pres cribe.” Art. I, § 13. The final ver sion appeared in 1876: “Every citizen shall have the right to keep and bear arms in the lawful de fense of him self or th e St at e; bu t t he Legisla tu re sh all ha ve p ower, by law, to regulate the wearing of arm s, with a view to prevent crime. Art. I, § 23. Utah: “The people h ave t he r ight to bea r a rm s for their secur ity a nd d efens e, but the legislature ma y r egu la te th e e xer cise of th is r igh t b y la w.” Ar t. I, § 6 (189 6). Wash in gton : The s ta te’s 1889 provision was t ypical of its tim e, except for it s explicit statement about armed groups, including company goon squa ds: “ The right of the individual cit ize n t o be ar ar ms in de fen se of hi ms elf, or th e state, sha ll not be impaired, but noth ing in t his section sh all be const ru ed as au th orizing individua ls or corp ora tion s to organize, ma inta in or employ an arm ed body of men.” Art. I, § 24. West Virginia: No provision until 1986. Wisconsin: No provision unt il 1998. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1416 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 provisions repeatedly—first upon admission to the Union, then upon rea dmission shortly after the Civil Wa r, a nd a ga in upon crea tion of a new Constitu tion under Reconstruction. The Confederate States of America also put a right to arms in their national Constitution.191 Second, stat es often th ought it necessa ry t o specifically enumerate the exceptions to the right to arms. Many constitutions contain a sp ecific exce pt ion allowin g r estrict ion s on concealed carry. Open carry was considered honorable, but concealed carry was seen useful only to people who wanted to surprise a victim. Louisiana’s constitution, for example, closely tracked the Second Amendment, but added an except ion against concea led ca rry: “A well regu lat ed militia being necessary to the securit y of a free Sta te, th e right of the people to keep and bear arms sha ll not be abridged. This shall not prevent t he passa ge of la ws to pu nish those wh o carry we apon s concealed.”192 This concealed carry exception, which was a imed at individuals, shows that the Louisiana right was an individual one. The clos e r eliance on the language of the Second Amendment further suggests that, at least to those who drafted and ratified the Louisiana Constitution, the Second Amendment was seen as protecting an individual right. Similar ly, Georgia durin g Reconstr uction adopted a Bill of Right s copied nearly verbat im from th e federal Bill of Rights. The ar ms provision stated: “A well-regulated militia bein g necessary to the securit y of a free people, th e righ t of the people to keep and bear arms sha ll not be infringed; but the general assembly shall have power to prescribe by law the manner in which ar ms ma y be born e.”193 Th e Geor gia Su pr em e Court has had no difficult y in u pholding t his provision as pr otecting t he righ t of individual Geor gia ns t o own and ca rry gu ns. At the same tim e, th e court relied on th e Const itution’s express grant
Wyoming: “The right of citizens to bear ar ms in de fen se of th em se lve s a nd of th e state sh al l n ot b e d en ied .” Art . I, § 24 (1 889 ). 191. See CONSTITUTION FOR THE PROVISIONAL GOVERNMENT OF THE CONFED ERAT E STATES OF AMERICA, ar t. I , § 7, cl. 1 0; CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA, ar t. I, § 9, cl. 13, reprinted in CHARLES ROBERT LEE, JR., THE CONFE DERATE CONSTITUTIONS apps. B & C (1963). The Confederate Constitution adopted t he Un ited Stat es Const itu tion’s Bill of Rights word for word. See id. 192. LA. CONST. art . 3. 193. GA. CONST. art. I, § 1 4 (18 68). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1417 of authority to regulate the con dition s of ca rryin g a s r ea son for upholding a state law prohibiting dea dly we apon s a t ele ction grounds, courts, churches, and other public gatherings.194 Third, state constitutional arms provisions that address the issue of the military and standing armies were not seen as inconsistent with individual rights. Opponents of the individual rights view of the Second Amendment normally point out that the Founders wer e gra vely concerned about standing armies (true), that they saw state militia s a s a counter poise to a federal standing army (also true), and that during the ratifica tion deba tes over the propos ed feder al Con st it ution , many anti-federalists worried that the new federal government would destroy the state militias (also true). The anti-individual theorists then cla im that because the F ounders saw militias as a pr otect ion aga in st st anding a rmies , t he Secon d Amendment, therefore, guaranteed only the right of state governments to have militias.195 But st ate con st it utions s how u s t hat an anti-standing army arms right provision can also be an individual right provision. For exam ple, t he Ohio Constit ut ion of 1851 st at ed, “The people have the right to bear arms for their defense and security; but st anding a rmies , in tim e of peace, a re danger ous to liber ty, a nd shall not be kept up; and the military shall be in strict subordination to the civil power.”196 Ohio courts ha ve always tr eated this provision as guar an teeing an individual r ight .197 Lik ewise, t he 18 68 Nor th Ca rolin a Con st it ution pr ovided: A well regulated militia being neces sa ry t o th e s ecu rity of a
free St at e, th e right of th e pe ople t o kee p a nd bea r a rm s sh all not be infringed; and, as standing arm ies in time of peace are dangerous to liberty, they ought not to be kept up, and the
194. See Hi ll v. St at e, 5 3 Ga . 47 2, 4 73-8 3 (18 74). 195. S ee, e.g., Eh rm an & Hen igan , supra note 2, at 14-32. 196. OHIO CONST. ar t. I , § 4. Th is la ngua ge r evis ed t he 1802 lan guage : “That the people ha ve a r ight to bea r a rm s for th e defence of th ems elves and the state; and as standing ar mi es i n t im e of pe ace , ar e da nger ous to li ber ty, th ey s ha ll n ot be kept up; and th at th e milit ar y sha ll be kept un der s tr ict sub ordin at ion t o th e civil power .” OHIO CONST. art. VII I, § 2 0 (18 02). 197. S ee, e.g., Arnold v. City of Clevela nd, 616 N.E .2d 163, 169-71 (O hi o 199 3); In re Rei lly, 31 O hi o De c. 36 4 (C. P. 191 9). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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military should be kept under st rict su bor din at ion to, a nd governed by, the civil power.198
This language quoted the Second Amendment but added additional language d en ouncing st anding armies . Su rely if the anti-individual view of t he S econ d Am endment were correct, then the North Carolina language (even more heavily weighted with anti-army language) could not be construed as an individual r ight . But th e North Car olina lan guage was indeed so construed. In 1875, the N orth Ca rolina legislature added concealed weapons control to the state constitution: “Nothing herein shall justify th e pr actice of carryin g concealed weapons, or pr event the General Assembly from enacting penal statutes against that practice.”199 The anti-concealed weapons language was obviously aimed at individual arms carriers, not at the state milit ia. And North Carolina courts consistently interpreted the provision as guar an teeing an individual r ight .200
B. State Case Law Except for some statutes late in the century banning arms from public para des, gun contr ol in the nineteen th century was almost exclusively a Sou ther n ph en omen on. In t he post-Civil War period, the Southern gun laws were clearly aimed at contr olling the Freedmen; although writt en in racially neutral terms, th e laws wer e mean t for, and applied a lmost exclusively to, blacks. 201 As for the antebellum per iod, scholars have speculated that the Southern controls were aimed at free bla cks. Bu t Cla yt on Cramer has s hown that the a ntebellum la ws , wh ich were
198. N.C. CONST. ar t. I, § 2 4 (18 68). 199. Id. § 30 (1 875 ). 200. S ee, e.g., Stat e v. Kerner , 107 S.E. 222 (N.C. 1921); State v. Speller, 86 N.C. 697, 699-701 (1882); State v. Newsom, 27 N.C. (5 Ired.) 250, 253-54 (1844); State v. Hu nt ly, 25 N .C. (3 Ir ed .) 41 8, 4 22-2 3 (18 43). 201. For an excellent sur vey of the r acial im plication s of nineteenth century arms control in the Sout h, see Robert J. Cottrol & Raymond T. D iam ond, “Never In ten ded to be Applied to the White Population”: Firearm s R egulation and Racial Disparity—The R edeem ed S out h’s L egacy to a N at ion al J ur isp ru den ce?, 70 CHI.-KENT L. REV. 1307 (1995), Cla yton E. Cr am er, Th e Racist Roots of Gun Cont rol, 4 KAN. J.L. & PUB. POL’Y 17 (1995), an d St efan B. Tah ma ssebi, Gun Control and Racism, 2 GEO. MASON U. CIV. RTS. L.J . 67 (1 991 ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1419 written in facially neutral terms in a period when there was no Fourteenth Amendment to require racial neutrality, had a different purpose. Dueling had been widely pr acticed in t he Southeast; legisla tive effor ts t o outlaw dueling had been underm ined by th e courts an d by juries. In t he absence of regulated dueling, South erners whose honor had been offended simply killed the offender. The concealed weapons laws were an ext en sion of the antidueling laws and were intended to prevent the victims of insults from killing th e insulter. Legislatu res accurately expected massive resistance to the laws, a nd therefore included many special enforcement mechanisms, such as allowing private citizens to bring criminal prosecutions and forbidding juries to consider th e defendan t’s motives.202 The solid majority of courts that reviewed the gun control laws, which were oft en challenged under the Secon d Amendment and its state analogues, would uphold the particular control, while affir min g a n in divid ual r igh t to own and carry guns.
1. Tennessee One of the most important state gun cases in the nineteenth century was Aymette v. State, an 1840 decision upholding restrictions on carrying concealed weapons.203 The decision was based on the Tennessee Constitut ion’s right to arms, but the court stated that the Tennessee provision was intended “[i]n the same view” as the Second Amendm ent.204 The Aymette court read the Tennessee provision (and, by an alogy, the Second Amendment) narrowly, finding that the right to arms was only so that th e people a s a whole could rise up against tyranny; the righ t was not for “private” defense.205 Further, the right to “bear arms” mea nt only th e righ t t o carry weapons in a public military context , n ot to carry concealed weapons for personal
202. See generally Clayton Cram er, Concealed Weapons Laws in the Ea rly Repu blic (1998) (unpublished Master’s thesis in History, Sonoma State Un iver sit y) (on file wit h a ut hor). 203. See Aymet te v. S ta te, 21 Ten n. (2 H um .) 15 4 (18 40). Fo r t he hi st ory of t he right to ar ms in Tenn essee , see Glen n H ar lan Reynolds, The Right to Keep and Bear Arm s Under the Tennessee Constitution: A Case Study in Civic R epublican Th ought , 61 TENN. L. REV. 647 (199 4). 204. Aymette, 21 Tenn. a t 157. 205. Id. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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protection.206 Given the anti-tyranny purpose of the right, the only ar ms protected were weapons useful for r esistin g tyr an ny, but not those useful mainly for crime: [T]h e use of those weapons wh ich a re us ua lly em ployed in
private broils, and which are efficient only in the hands of the robber an d th e assassin . . . . The right t o keep and bear th em, is n ot, t her efor e, se cur ed by t he con st itu tion .207 As to the weapons which were protected:
The citizen s h av e t he u nqu alified rig ht t o keep the
weapon . . . . But the right to bear arm s is not of that unqualified character. . . . [B]ut it does not follow, that they may be borne by an individu al, m er ely t o te rr ify the p eop le, or for pu rp oses of priv at e a ssas sin at ion. . . . [T]he legislature may prohibit such m anner of wearing as would n ever be resorted to by persons engaged in t he common defence.208 Aymette la id down the line followed by t he m ajority of state
courts considering right to arms cases: the right was for protection from tyranny; the right encompassed the ownership of weapons useful for resistin g t yr anny; bu t the r igh t did n ot encompass the carrying of concealed weapons not suitable for resist ing t yra nn y.209
206. See id. at 161. 207. Id. at 158. 208. Id. at 160. A good argume nt coul d be ma de t ha t t he re is n ot a s m uch diffe re nce between militia weapons and crime weapons as Aymette and the nineteenth century majority line of cases would su gges t. C once ala ble k niv es m ay b e u sefu l for hand-to-hand combat and for guerilla war fare, and sm all handguns even m ore so. Conver sely, rifles can be used to mur der innocent people. 209. Aymette may ha ve been too facile in equ at ing th e ar ms r ight provision in the Tennessee Constitution with th e Se cond Ame nd me nt . Th e Te nn ess ee C ons tit ut ion protected “the right of the people to keep and bear ar ms for their common defence” and th us cont ain ed re str ictive language wh ich t he U.S . Se na te ha d vot ed n ot t o include in t he Secon d Am en dm en t. W hil e com mon de fense ma y ha ve been th e only purpose of th e Te nn ess ee r igh t, t he Secon d Am endm ent lan gua ge was broad enough to in clu de oth er pu rp ose s, s uch as se lf-de fense. See 1 BLACKSTONE, supra note 14, app. at 300. The Aymette cour t’s th eor y th at conce ale d ca rr y wa s n ot within the scope of the arms right was predicated on reasoning that a militia-man would never carry concealed. But while concealed carry might be of no use to someone engaged in the “comm on defence,” concealed car ry could be quit e use ful for p er son al defense. Thus Aymette, an d t he cas es fr om ot he r s ta te s wh ich cite to Aymette, may be on shaky ground to th e extent th at th e other sta te cas es involve const itu tiona l pr ovision s worded more broadly than Tennessee’s. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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After the Civil War, the Tennessee Supr eme Court decided another case, Andrews v. State, wh ich ela bor ated on the principles of Aymette, and which, like Aymette, was widely cited in other states.210 The Tennessee legislature had banned the carrying of cer tain weapon s—con cea led or openly—a nd several defendants charged with violation of the law argued that the law violated the Second Amendment and the Tennessee Con st it ution . The summary of the briefs at the be gin ning of the case shows that, regarding the Second Amendment, the Attorney Genera l simply replied that the Second Amendment was not enforceable against the states.211 In oral argument, apparent ly, th e Att orney Gen eral went furt her, a rgu ing t ha t the Second Am en dm en t and t he Ten nessee state con st it ution al righ t t o arms were meant to pr otect a “political righ t.”212 Citin g Barron v. Baltim ore,213 the Andrews court held that the Second Am en dm en t wa s inapp lica ble to the states.214 But the Cou rt const rued the Ten nessee provis ion and t he Secon d Amendment toget her, finding “that, necessarily, the same rights, and for simila r rea son s, were bein g provid ed for and protected in both t he Fed eral a nd Stat e Constit ut ions . . . .”215 The court’s construction of th e stat e an d feder al r ight to arm s is worth quoting at len gth , because it is a perfect exam ple of the dominant line of nineteenth -centur y case law on the righ t t o arms, expressing several principles: 1. Th e pu rp ose of th e right is to secure a militia, which is a
foundation of a free society. 2. To m ak e p ossible a m ilitia, all persons have the right to purchase, use, pr act ice w ith , an d ca rr y wea pon s for all non- nefarious purposes. 3. The right only inclu des th e type of ar m s u sed by a m ilitia (e.g., rifles and swords) and does not include non-militia type weapons allege dly favore d b y crim inals (e.g., concealab le knives).
As the court wrote:
210. See And re ws v. S ta te , 50 Te nn . (3 H eis k. ) 165 (187 1). 211. See id. at 168. 212. Id. at 170. 213. Barron v. Bal ti mo re , 32 U. S. (7 Pe t. ) 243 (183 3). 214. See Andrews, 50 Tenn. at 173-75. 215. Id. at 177. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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It was th e efficiency of th e pe ople a s sold iers, wh en called int o
actual service for the security of the State, as one en d; and in order to this [sic], th ey w er e t o be a llowe d t o keep arms. What, then, is in volv ed in th is r igh t of keeping ar m s? It ne cessa rily involves the right to purchase and use them in such a way as is usual, or to keep them for t he or din ary pu rp ose s t o wh ich they are adapted; an d a s the y are to be kept , eviden tly w ith a view that the citizens making up the yeomanry of the land, the body of th e m ilitia, shall becom e fam iliar wit h t he ir u se in times of peace , th at th ey m ay th e m ore efficient ly use t he m in times of war; then the right to keep arms for this purpose involves the right to practice their use, in order to attain to this efficiency. The right and use are guara nteed to the citizen, to be e xer cised a nd e njoyed in tim e of peace, in su bor din at ion to the genera l ends of civil society; but, as a right , to be ma intained in all its fullness. The right to keep arms, necessarily involves th e right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arm s, and to keep them in repair. And clearly for this purpase [sic], a man would have the right to carry them to and from his home, and no one could claim that the Legislature had the right to punish h im for it, without violating this clause of the Constitution. But farther than this, it must be held, that the right to keep arms, involves, necessarily, the right to use such arm s for all th e ordin ar y pu rp oses, an d in all t he ord ina ry m odes usual in th e coun tr y, an d t o wh ich a rm s a re ad ap ted, lim ited by the du tie s of a good citizen in tim es of pea ce . . . .
. . . . What, then , is he protected in the right to keep and thus
u se ? N ot ever y t h in g t h at m ay be u se ful for offen se or de fen se ; but wha t may properly be included or understood under the title of arms, taken in connection with the fact that the citizen is to keep them, as a citizen. . . . [W]e would hold, that the rifle of all descriptions, the shot gun, the mu sket, and repeater, are such ar ms . . . .216
216. Id. at 178-7 9. A “r epe at er ” is “an y fir ea rm cap ab le of fir ing mor e t ha n on e shot without ha vin g t o be re loa de d m an ua lly. ” R.A. STEINDLER, STEINDLER’S NEW FIREARMS DICTIONARY 213 (1 985); see also 2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 2548 (3d ed. 1993) (defining “repeater” as “[a] firearm which fires several shots without reloading,” and explaining that this usage first appea red in th e midd le D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1423
The Attorney Genera l, however, had argued “that the right to keep a nd bea r arms is a polit ica l, n ot a civil right .”217 Under existing Tennessee doctrin e, r igh ts class ified a s “polit ica l” (su ch as vot in g) we re subject to limit less legislat ive restr iction, while rights classified as “civil” were not.218 Th e Ten nessee cou rt responded that the Attorney General fails to distinguish between the nature of the right to keep,
and its necessary incidents, and the right to bear arms for the com m on defense. Bearing arm s for the common defense may well be held to b e a politica l right, or for pr ote ction an d maintenance of such rights, intended to be guaranteed; but the right to keep them , with all that is implied fairly as an incident to th is right, is a pr iva te individu al rig ht, guar an te ed to t he citizen, not the soldier.219
The court then quoted at length from Justice Story’s treatise on constitutional law:220 We cite this passage as throwing light upon wha t was int ended
to b e gu ar an te ed to t he p eop le of the States, against the power
nineteenth century). 217. Andrews, 50 Tenn. a t 182. 218. State v. Staten , 46 Tenn. (6 Cold.) 233, 277, 279 (186 9) (Shackleford, J ., con cur ri ng ). The stat e court explained: The righ t of suffra ge being a political, and not a natural or inherent right, th e sovere ign power ha s th e righ t t o rest rict or enla rge t he pr ivilege...... The one [the right to follow a profession] is an inherent and na tura l right, an d [t he rig ht to vot e], a polit ical rig ht or privilege, a trust delegated. The first fa lls directly wit hi n t he pr ohibi ti ons of t he Con st it ut ion of th e United States; the other is a trust, subject to be r evoked by t he sover eign will. Id. at 277 -79. Ridl ey v. S her brook , 43 Tenn. (3 Cold.) 569, 576-77 (1866), is also inst ru ctive of th is d ist inct ion: The elective franchise is not a n ina lienable right or privilege, but a political right, conferred, limit ed, or wit hh eld, at th e pleasur e of the pe ople, actin g in th eir sover eign cap acity. . . . . These [right s to follow a pr ofession or calling] are civil righ ts, a nd inalienable, an d of w hi ch h e ca nn ot b e d ep ri ved by t he pe ople of the Stat e. But a p olit ical rig ht st an ds u pon a very differ en t p ri nci ple ; it is a politi cal privilege or gra nt , that ma y be exte nded or re called, at th e will of the sovereign power. Id. 219. Andrews, 50 Tenn. at 182. 220. See id. at 183; see also supra notes 112, 114 a nd a ccompan ying te xt. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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of the F ederal Legislature, an d at the sam e time, as showing clearly what is t he m ea ning of ou r ow n Con st itu tion . . . . So that, the m eaning of the one, will give us an understan ding of the purpose of the other. The pa ssa ge from St ory, show s clea rly that this right was intended, as we have maintained in this opinion, and was guaranteed to, and to be exercised and enjoyed by the citizen as su ch, a nd not by h im as a soldier , or in defens e solely of his political rights.221
The court quoted additional material from Justice Story and shared his worries about the neglect of the militia. The court also quot ed t he earlier Tenn essee case, Aymette v. State,222 and its invention of the “civilized warfare” test for determining the types of arms constitutionally protected.223 The Tennessee statute had forbidden the concealed carr ying of, among other small weapons, any “pocket pist ol.”224 The Tennessee Supreme Court ruled that whether the defendant’s revolver was a weapon—the “skill in the use of wh ich will add to the efficien cy of the soldier ”—was a matter for decision at trial, based on the evidence.225 The instant statute was clearly unconstitutional, however , because it forbade all carrying, ra th er th an just concea led carr y.226 A concurring and dissenting opinion argued for a broader rule than the majorit y, n ot lim it ing the t ype of arms t o “civilized warfare” weapons and allowing only the “regulation” of concea led carry, but not it s p rohibition .227
2. Arkansas The anti-individual interpretation of the Secon d Amendment made its first appearance in a concurrin g opin ion in an 1842 Arkansas decision upholding a law a gainst carrying
221. Id. at 183-84. 222. 21 Te nn . (2 H um .) 15 4 (18 40). 223. See Andrews, 50 Tenn. at 184-85 (quoting Amyette v. State, 21 Tenn. (2 Hum.) 154 (184 0)). 224. Id. at 186. 225. Id. at 187. Th is form ula tion closely prefigur ed t he U .S. Suprem e Court’s handling of a challenge to a federal law prohibiting unregister ed possession of short shotguns; the Court sen t the case back to trial court to determine if short shotguns were milit ia-typ e wea pons. S ee Unit ed Sta tes v. Miller, 307 U.S. 1 74, 178 -83 (1 939 ). 226. See Andrews, 50 Tenn. at 187-88. 227. See id. at 193-95. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1425 concealed weapons against a challenge under the Arkansas Con st it ution and the Second Amendment.228 Existing Arkansas case law provided sufficient authority to uphold th e law, but the court majority went further, offering a narrow construction of the Second Amendment and its corresponding provision in the 1836 Ar kansa s con st it ution .229 The majority argued that: 1. All natural rights are surr endered to full government
control upon the creation of a government; 2. An “absolu te” right t o ar m s would m ea n t ha t d isa rm ing violent criminals upon their apprehension was unconstitutional; 3. Th er efor e, s in ce t h e p olicy im plica tion s of t h e s tr aw-m an “absolute” right to arms are unacceptable, there must be no right to arms at all.230 According to this Arka nsas court, the sole purpose of the
Second Amendment was to secure a well-regulated milit ia : “th e language used a ppear s to indicate, dist inctly, that this, and this alone, was the object for which the article un der consider at ion was adopted.”231 Th e Am en dm en t wa s based on the t heor y that the militia, without arms, however well disposed, m ight
be unable to resist , successfully, the efforts of those who should consp ire to overthrow the esta blished institutions of the country, or s ubju ga te th eir com m on libert ies . . . . [F ]or this purpose only, it is conceived that the right to keep and bear arms wa s r et ained , and the p owe r w hich , wit hou t s uch reserva tion , would have been vested in the government, to prohibit, by law, th eir keeping a nd bearing arms for any purpose wh at eve r, w as so fa r lim ite d or withdrawn . . . that the people designed and expected to accomplish this object, by the ad option of th e a rt icle und er consid er at ion, w hich wou ld
228. See St at e v. Bu zza rd , 4 Ar k. 18 (1 842 ). 229. See ARK. CONST. of 1836, ar t. II , § 21 (“Tha t t he fre e whit e men of this State sh all ha ve a rig ht to k eep an d t o bear arm s for th eir common defence.”). The Arkansas Constitut ion was one of a few of the nineteent h century st at e con st itu tion s to include a “common defence” purpose and no oth er. During Senate debate over the Secon d Ame nd me nt , th e U nit ed S ta te s Se na te re ject ed a mot ion t o add “for t he comm on defense” to the end of the Second Amendment. See SENATE JOUR NAL , Sept. 9, 1789, attested by Sam A. Otis, Secretary of the Senat e, Ex ecu tive Communications, box 13, p.1, Virginia Sta te L ibra ry a nd Ar chives, cited in Dennis, supra note 1, at 70 n.54; SENATE SUBCOMM. ON THE CONST., supra note 1, at 6. 230. See Buzzard , 4 Ark. at 19-23. 231. Id. at 24. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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forever invest th em with a legal right to keep a nd bear arms for that purpose; but it surely was not designed to operate as an immunity t o th ose, who s hou ld so k eep or be ar th eir ar m s as to in jure or e nda nger th e p riv at e r igh ts of oth er s, or in any ma nn er prejudice the common int erest s of society.232
Thus, since the restriction on carrying concea led arms d id not impair the abilit y of the people t o rise a gainst tyr an ny, the la w did not violate the state constitution’s right to arms.233 As for the Second Amendmen t, it was “an open qu estion” since no court had yet construed it.234 Justice Dickinson’s concurring opinion went much further. “The provision of the Federal Const itution . . . is but an assertion of tha t gen eral r ight of sovereignty belonging to independent na tions, to regulat e their m ilita ry force.”235 Since the law against carrying concealed weapons did not inter fere with th e per forma nce of federal militia dut y, it did not violate the Second Amendment.236 This represents the birth of the anti- individual version of the Second Amendment. The dissent bitter ly contested the majority’s argumen ts one- by-one, pointing out that the same rationale could be used to obliterate any natural law right guaranteed under the Arkansas or federal const itutions. Rega rding t he Secon d Amendment, the dissent lamented that under the concurring opinion’s interpretation, it is th e m ilitia alon e wh o possess th is right, in
contradistinction from th e m as s of th e pe ople; an d even th ey cannot use th em for p riv at e d efen ce or pe rs onal ag gr ession , but mu st u se th em for public liberty, accord ing to th e dis cre tion of the Legislat ur e. According t o the rule laid down in their interpretation of this clause, I deem the r ight to be valueless, and not worth preserving; for the State un qu est iona bly possesses the power, without the grant, to arm the m ilitia , and d ire ct h ow t hey s hall be em ployed in cas es of inva sion or dom estic in su rr ect ion. If this be the meaning of the
232. Id. at 24-25. 233. See id. at 27. 234. Id. at 28. 235. Id. at 32 (D ick in son , J ., con cur ri ng ). 236. See id. at 33 (D ick in son , J ., con cur ri ng ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Const itu tion , why give that which is no right in itself, an d guar ant ies a privilege that is useless?237 Whether rightly or wrongly reasoned, th e concurrence in
State v. Buzzard marks the birt h of the stat es’ rights, anti- individual view of the Second Amendment. It is notable that the birt h occurs half a century after the ratification of the Amendment, and the concurrence was not able to cite a single authority of any t ype in su pp ort of its position. Anti- individualists appear unaware of the Buzzard concurrence, although it should have pride of place as the creat or of their theory. After the Civil Wa r, t he Ar kansa s cou rt moved away from Buzzard’s more ext rem e la ngu age, and bega n to restore some force to the right to arms. An 1872 decision cited Buzzard mer ely for the proposition that th e legislatu re could prohibit injurious uses of firearms, “so long as their discretion is kept with in reasonable bounds.”238 Under this standard, a law aga inst concea led carr y was “not u nr easona ble.”239 In 1876, the court heard a Second Amendment and state constitutional challenge to a new law prohibit ing t he wearin g—openly or concea led —of va riou s edged weapon s, pistols, and brass knuckles.240 The court ruled that the Second Amendment was not a limit on the states.241 Followin g the 1871 Tennessee decision Andrews v. State, the Arkansas court held that the state Constitut ion and the Second Amendment protected citizen ownership of arms, bu t lim it ed that pr otect ion to weapon s t hat were u seful for purposes of war.242 Thus, the ban on these particular concealable weapons was
237. Id. at 35 (L acy , J ., d iss en ti ng ). 238. Car roll v. S ta te , 28 Ark . 99 , 10 1 (18 72). 239. Id. 240. See Fi fe v. St at e, 3 1 Ar k. 455 , 45 6 (18 76). 241. See id. at 458. 242. See id. at 458-59. Regarding the Second Amendment, the court cited 3 STORY, supra note 106, at 750-51, §§ 1896-97, and THO MAS COOLEY, infra note 395, at 498, to support the statement that the arm s which it [the Second Amendment] guara ntees Amer ican citizens the right to keep and to bear, are such as are need ful to, and or dina rily used by a well r egulated m ilitia, and such as are n ecessary and s uitable to a fre e people, to en able t hem to resist oppre ssion , pre vent usu rpa tion, repel invasion, et c., et c. Fife, 31 Ark. at 458. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1428 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 constitutional.243 While large m ilitary-size r epea tin g pistols were within th e scope of the right to arms, small pistols were not.244 In 1878, the court struck down a ban on carrying weapons, as app lied t o the defendant ’s carryin g of a concealed arm y-sized pist ol: “If cowardly and dishonorable men som et im es sh oot unarmed men with ar my pistols or guns, the evil must be prevented by th e pen itent iar y an d gallows, and not by a general depr ivation of a constit utiona l privilege.”245 Although the Arkansas Supr eme Court never formally overruled Buzzard, the court’s postwar decisions returned Arkansas law to the mainstream. The Buzzard concurrence’s assertion that the right to arms w as n ot in divid ual va nished from Amer ica n case law for the rest of the nineteenth century.
3. Georgia The 1846 case Nunn v. State was the first case in which a court used the Second Am en dm en t to in va lid ate a gu n control law.246 The Georgia legislatu re had banned the sale and possession of knives int ended for offensive or defensive purposes and pistols, except “such pistols as are known and used as horsem an ’s pistols.”247 The law ma de an except ion which allowed possession (but not sale) of the banned weapons if the wea pon were worn “exposed plainly t o view.”248 The Georgia Con st it ution at the time h ad no right to arms provision, but th e st at e Su preme Cour t combined nat ur al r ight s analysis with t he Second Amendm ent to declare th e law unconstitutional: [When] did any legislative body in the Un ion ha ve th e right to
deny to its citizens th e privilege of keeping and bear ing arm s in defen ce of themselves an d th eir count ry? . . . [T]h is is on e of t h e fundamental principles, upon which re st s t he gr ea t fa br ic of civil liberty, reared by th e fathers of the Revolution and of the country. And the
243. See Fife, 31 Ark. at 461-62. 244. See id. at 461. 245. Wils on v. State, 33 Ark. 557, 560 (1878) (striking a ban on u nconcealed carry). 246. See Nu nn v. S ta te , 1 G a. 243 (184 6). 247. Id. at 246. 248. Id. at 247. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Con st itu tion of the United St at es, in de clar ing that th e r igh t of the people to keep and bear a rms, should not be infr inged, on ly reiterated a t ru th an nounced a ce ntu ry befor e, in th e a ct of 1689, “to extend and secure the rights and liberties of English subjects”—Whether living 3,000 or 300 m iles from th e royal palace.249
And thus, “[t]h e la nguage of the second amendment is broad enough to embra ce both F eder al and Stat e governmen ts—nor is th ere anyt hin g in it s terms which rest ricts its meanin g.”250 The Georgia court kept the introductory clause to the Amendment firmly in view: “our Const itu tion assigns as a reason why t his right shall not be int erfer ed wit h, or in an y manner abr idged , t hat the fr ee en joym en t of it will prepare and qu alify a well-regulated militia, wh ich are n ecess ary t o the securit y of a free Sta te.”251 Thus: If a well-regulated militia is necessary to the security of th e
State of Georgia and of the U nite d S ta te s, is it com pe te nt for the General Assembly to ta ke aw ay th is secu rit y, by d isa rm ing the people? What advantage would it be to tie up the han ds of the national legislature, if it were in the power of the S ta tes to destroy this bulwa rk of defence? In solemn ly affirming th at a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia, the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate?252
And what is the scope of this “unlimited right”? The right of the whole people, old and young, men, women a nd
boys, and not militia only, to keep and bear arms of every description, and not su ch merely as are used by the m ilitia, shall not be in fri nged , cur ta iled, or broken in u pon, in the sma llest degree; and all this for the important en d to be attained: th e rea rin g u p a nd qu alifying a well-regulated m ilitia , so vitally neces sa ry to t he se cur ity of a fr ee St at e. O ur opin ion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes th is right, origin ally
249. Id. at 249. 250. Id. at 250. 251. Id. 252. Id. at 251. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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belon ging to our forefathers, trampled under foot by Charles I. and his tw o wicke d son s a nd su ccessor s, re-est ab lished by the revolut ion of 1688, conveyed to th is land of liberty by the colonists, an d fin ally in corp ora te d con sp icuously in our own Ma gna Charta! An d L exin gton, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans plead eloquen tly for t his in te rp re ta tion ! An d t he a cqu isit ion of Texas ma y be considered the full fruits of this great constitutional right.253 The opinion concluded by holding t ha t the ban on concealed carrying was valid because it did not int erfere with a citizen’s Second Amendment right; but insofar as the law “contains a prohibition against bearing arms openly, [it] is in conflict with the Constitution, and void”254 Since the indictment did not sp ecify that Nun n’s weapon was concealed, the charges were quashed. After th e Civil War, Georgia added a r ight to arms to its state constitution. Although courts enforced this provision, they rejected the Second Amendment as a limit on state power, an d also rejected the use of natural law.255
4. Louisiana In 1850, the Lou isia na Su pr em e Court faced a challenge t o a state law banning concealed carry, bu t a llowing open carry. The court considered the Second Amendment to be applicable to the states—to protect an individual’s right to carry a gun for
253. Id. For th e im pa ct of t he rig ht to a rm s on th e Te xas wa r for independence against Mexico—which was precipitated by the Mexican government’s attempt to confi sca te a cannon, an d the Texan s’ reply of “Come and take it,” see Stephen P . Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills of Rights, 41 BAYLOR L. REV. 629 (1989). 254. Nunn, 1 Ga. at 251. The Nunn Court’s approach to natural rights was not unusual for its time. In an 1857 Massa chusett s case, Chief Justice Lemuel Shaw—perhaps the most influential state court judge of the period—used principles of “natural justice” to find that the stat e constitut ion required th e use of grand juries for infamous crim es, desp ite t he a bsen ce of any gra nd ju ry langu age in th e Massachusetts Bill of Rights . S ee J ones v. Robbi ns , 72 Ma ss . (8 G ra y) 32 9 (18 57). 255. See Hill v. State, 53 Ga. 472, 473-74 (1874). Justice McCay opined t ha t if the qu est ion w er e on e of fir st im pr ess ion, he wou ld h old t ha t b oth th e Se cond Amendment and t he Georgia provision only protected “the arms of a militiaman, the weapons ordin ar ily use d in bat tle, t o-wit: gun s of every k ind, s wor ds, bayonets, horseman’s pist ols, etc.” Id. at 474. Bu t, h e ad mit ted , Nunn v. State re qu ir ed a mu ch broader definit ion. S ee id. at 475. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1431
personal defense—but held that a sta te la w which bann ed only carrying concealed did not violate the Second Amendm ent.256 Subsequent cases in 1856257 and 1858258 reaffirm ed t his holdin g.
5. North Carolina An 1844 decision of the N orth Ca rolin a Su pr em e Court relied on Barron v. Baltim ore to rule that the Second Amendment does not constrain state laws.259 The state constitution provided [t]hat the pe ople hav e a rig ht t o bea r a rm s, for th e d efen ce of
the State; and, as standing armies, in time of peace, are dangerous to lib er ty, th ey ou gh t n ot t o be kept up; and that the m ilita ry should b e k ep t u nde r s tr ict s ubor din at ion to, a nd governed by, the civil power.260
256. See St at e v. Ch an dle r, 5 La . An n. 489 , 49 0 (18 50). [The law] int erfer ed with no ma n’s right to car ry a rm s (to use its wor ds) “in full open view ,” which pla ces m en up on an equality. This is the right guara nteed by the Constitu tion of the United States, an d which is calculated to incite men to a ma nly a nd n oble defen ce of them selves , if necess ar y, an d of their country, with out a ny t ende ncy to secr et a dvan ta ges an d un ma nly assassinations. Id. 257. See Sm it h v . St at e, 1 1 La . An n. 633 , 63 3 (18 56). The statute against carr ying concealed weapons does not contravene the secon d art icle of the amendments of the Constitution of the United States. The arms there spoken of are such as are borne by a people in war, or at least carr ied openly. The a rt icle explain s itse lf. It is in these words: “A well regulat ed militia being n ecessa ry t o the secur ity of a free St at e, th e righ t of the people to keep and bear ar ms sha ll not be infringed.” This was never intended to prevent t he ind ividua l St at es fr om a dopt ing su ch m ea su re s of police as mi ght b e n eces sa ry, in ord er to p rot ect th e or derly and well disposed citizens from th e t re ach er ous us e of wea pon s n ot e ven des ign ed for any purpose of public defence, and used most frequen tly by evil-disposed men who se ek a n a dvan ta ge over t heir an ta gonist s, in the disturbances and breaches of the peace which they are pr one to provoke. Id. 258. See Stat e v. Jum el, 13 La. Ann. 399, 39 9-40 0 (18 58) (“ The s ta tu te in qu est ion does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a part icu lar m ode of bearing arms wh ich i s fou nd dangerous to th e pea ce of society.”). 259. See State v. N ews om, 27 N .C. (5 I re d.) 25 0, 25 1 (184 4) (up hold ing re st riction against possession of arms by free people of color since they were not parties to the constitutional com pa ct). 260. N.C. BILL OF RIGHTS § XVII (17 76); see supra note 190. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Although th is pr ovision wa s replet e with a nt istan ding ar my language, the court held that the North Carolina provision guaranteed more than just a right to the state militia. The North Carolina Supr eme Cou rt treated the constitutional guarantee as protecting a right of all persons to possess and carry firearm s, including for defensive purposes. The court held, however, that an implicit exception allowed the legislatu re to exclude free blacks from enjoying t his righ t; therefore an 1840 la w requirin g free blacks who wished to own guns to obta in a license was constitu tional.261 (The implication, of course, was that a licensing statute applied to a citizen with full civil righ ts would be unconstit ut ional.) The North Car olina court ’s decision illustra tes tha t, contra the central argument of the anti-individualists, concer n abou t standing armies is not in consist en t wit h pr otect ion of a br oad individual right to persona l defense. The other N orth Ca rolina decision s from the nineteen th century (and the twentieth ) treated the arms r ights provision as protective of an important individual right of personal defense.262
6. Texas A Texas stat ut e specified that ma nslau ght er with a Bowie knife or dagger would be treated as murder, and a defendant in Cockrum v. State claimed that his conviction under this statute violated the Second Amendment.263 The court began by explaining that the introductory cla use of the Secon d Amendment “has referenee [sic] to the perpetuation of free government, an d is ba sed on th e idea, that th e people cannot be effectually opp ressed a nd enslaved , wh o are n ot first disa rm ed.”264 The Texas clause “has th e same broad object in rela tion to the government, and in addition thereto, secures a
261. See Newsom, 27 N.C. at 254-55. 262. See Stat e v. Kerner , 107 S.E. 222, 224-26 (N.C. 1921) (citing Cooley to declare un constit ut ional a law a gainst carr ying pist ols, openly or concea led, on pu blic proper ty); St at e v. S pel ler , 86 N .C. 69 7, 70 0-01 (1882); S tate v. Hu nt ly, 2 5 N .C. (3 Ire d.) 418 , 42 2-23 (184 3); see also Car l W. Thu rm an , III, N ote, Sta te v. Fe nn ell: The North Car olin a T rad iti on of R eason abl e R egu lat ion of th e R ight to Bear Arm s, 68 N.C. L. Rev . 10 78 (1 990 ) (dis cus sin g va ri ous t went iet h ce nt ur y ca se s). 263. See Cock ru m v . St at e, 2 4 Te x. 3 94, 397 (185 9). 264. Id. at 402. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1433 personal right to the citizen.”265 In other words, the Second Amendment guaranteed a right to possess arms to resist tyranny, but not a right to possess arms for personal protection. A second implication was that the Second Amendment was a collective right, rat her th an a “personal” one. But there is no in dication that the Texas court meant that individual citizens could not exercise Second Amendment rights. The court, basing its decision on t he Texas ar ms right, simply ruled tha t t he la w was constitutional because it did not ban the carrying of the Bowie knives, but merely set a h igher penalt y for crimin al misuse of this pa rticu la rly d anger ous w ea pon .266 After the Civil War, while Texas was under a Reconst ruction governmen t ver y mu ch concerned wit h Confederate sympathizers, the legislatur e banned the carrying of cer tain edged and blu nt weapon s, wh et her openly or concealed; ther e wer e excep tion s for carrying u nder certain circumstances. Deciding a Second Amendment and Texas Con st it ution challenge to the law, the Texas Supreme Court decision in English v. State declared that the Second Amen dment bound the states.267 Following “civilized warfare” precedent from other states,268 the court stated The word “arms” in the connection we find it in the
cons tit ution of the United Sta tes, refers to the arm s of a militiaman or soldier , an d t he wor d is u sed in it s m ilitary sense. The arms of the infantry soldier are the musket and bayonet; of cavalry and dragoons, the sabre, holster pistols and car bin e; of th e a rt iller y, the field pie ce, sie ge g un, an d m ort ar , with side arm s.
265. Id. 266. See id. at 402-03. “The righ t t o carr y a bowie-kn ife for lawful defen se is secured, and m ust be a dmitted. It is an exceeding destructive wea pon. . . . The gun or pist ol ma y miss its aim . . . . The b owie-knife . . . is the instrument of almost certa in dea th .” Id. at 403. 267. See En glis h v . St at e, 3 5 Te x. 4 73, 474 -75 (1 872 ). 268. The English cas e h igh ligh ts th e flip sid e of t he “civilized war fare” coin: if “civilized war fare” was a good ra tiona le for excludin g var ious sm all weapons from the right to ar ms, it could also im ply th e righ t t o own all m ilitary type weapons. However, as Don Kates points out, the t extual lan guage “keep and bear” suggests that only per son all y por ta ble w ea pon s a re wit hin th e scop e of the right to “arms”; ther efore, th e si ege gun a nd oth er form s of cr ew-s er ved , non -por table ar tiller y would not be covere d by the a rm s righ t. See Kat es, Handgun Prohibition , supra note 1, at 261. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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The terms dirks, daggers, slungshots, sword-canes, brass knu ckles an d b owie kn ives , belong to no military vocabulary.269 Three yea rs later , polit ical power in Texas h ad shifted, and
State v. Duke repudiated English’s narrow reading of the type of arms protected. Th e Texa s Const it ution wa s r ea d t o pr otect all “arms as are commonly kept, according to the customs of the people, and are appropriate for open and ma nly use in self- defense, as well as such as are proper for the defense of the Stat e.”270 These included, besides the weapons described in English, “the double-barreled shot-gun, the huntsm an’s rifle, and such pistols at least as are not adapted to being carried concealed.”271 Duke rejected the defendant’s effort to raise the Second Amendment, stating that the Second Amendmen t did not limit the states, and thus based the decision solely on the Texa s Const it ution .272
7. Illinois In Dunne v. People, the Illinois Su pr em e Court affirmed the centrality of state power over th e milit ia, citing the Tenth Amendment and the United Sta tes Supreme Court’s Houston v. Moore precedent.273 The Dunne Court also explained how a state’s constitutional duty to operate a militia was complemented by the r ight of the state’s citizens to have arm s: “A well regu la te d m ilit ia be in g n ece ss ary t o th e s ecu rity of a
free State,” the States, by an amendment to the constitution, have imposed a restriction that Congress shall not infringe the right of the “people to keep and bear arms.” The chief executive officer of the State is given pow er by t he con st itu tion to call ou t t he m ilit ia “to ex ecu te the laws, suppress insu rr ect ion an d r ep el in va sion .”274 This would be a mere
269. English, 35 Tex. at 476-77. 270. State v. D uk e, 4 2 Te x. 4 55, 458 (187 5). 271. Id. 272. See id. 273. See Du nn e v. Pe ople , 94 Ill . 12 0, 1 24-2 8 (18 79). 274. The court was quoting lan guage from Art icle I, Section 8 of the Constitution, wh ich in fact gives such au th ority t o Congres s. This gra nt is not inconsist ent with pre-existent state au th ority, so long a s th e sta te a ut horit y is not u sed in conflict with the feder al a ut hor ity. See Houst on v. Moore, 14 U.S. (1 Wheat.) 1, 16-17 (1820) (holding that s ta te au th orit y ove r t he mi lit ia pr e-e xis ts th e Co ns ti tu ti on); 1 BLACKSTONE, supra note 14, app. a t 273. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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barren gr an t of p owe r u nless t he S ta te had pow er to organize its own m ilitia for its own pu rp oses. Un orga nized, t he m ilitia would be of n o pr act ical a id t o th e exe cut ive in m ain ta inin g order and in protecting life a nd p rop er ty wit hin th e lim its of the State. These are duties that devolve on the State, and unless th ese righ ts ar e secur ed t o th e citize n, of wh at wor th is the State government?275
8. West Virginia West Virginia did not have a state constitutional right to arms un til t he twentieth cent ur y.276 Th e 18 91 case of State v. Workman involved a Second Amendment challenge to a statute banning th e car ryin g of “any revolver or other pistol, dirk, bowie-knife, razor, slung-shot, billy, met allic or oth er false knuckles, or any ot her da nger ous or deadly we apon of like kind or character .”277 The stat ut e allowed th e defendant to win an acquittal by proving that he was “carryin g su ch weapon for s elf- defence an d for no other pur pose.”278 The applicability of the Second Amendment to the states was, sa id the cou rt, “a question upon which authorities differ.”279 Following the “civilized warfare” theory of other state courts, West Virginia stated that the Second Amendment protected ownership of the weapons of warfare to be used b y t he m ilit ia , su ch as
swords, gu ns , rifles, an d m us kets—arm s to be u sed in defending the State and civil liberty—and not to pistols, bowie- knives, bras s knu ckles , billies, and such other weapons as are usually employed in br awls, street -fights, duels, an d affrays, and are only ha bitua lly carried by bu llies, blackguards, and despara does, to t he t er ror of th e com m unity an d t he in jury of the State.280
275. Dunne, 94 Ill. at 132-33. 276. See W. VA. CONST. art. 3, § 22 (“A person has the r ight to keep an d bear arms for t he defe ns e of se lf, fam ily, h ome and state, and for lawful hunting and recreational us e.”) (ena cte d in 1986 ); see also Ha lbrook, supra note 19, a t 68. 277. State v. Wo rk ma n, 35 W . Va . 36 7, 3 67 (1 891 ). 278. Id. (quoting W. VA. CODE ch. 148 , § 7). 279. Id. at 372. 280. Id. at 373 (citing Bish. Crim. St. § 792 ). Fur th er, t he court expla ined , th e Secon d Am en dm en t wa s in t en de d t o p r ot ec t “pu bl ic li be r t y, ” a nd in corp ora te d va rious restrictions from E nglish law r egar ding t he ca rr ying of wea pons. Id. at 372-73. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Thus, the anticarrying statute stood. However, the individual rights implications of the decision are clear.
9. State case law summary The ma jority of sta te cour ts in the nineteenth century upheld restrictions on the carrying of concea led weapon s. Courts affir med the r igh t of cit izens t o carry firearm s openly for protection but held that concealed carry could be regulated, or even ban ned, by the legislatu re.281 Courts differed on whether the Second Amendment applied directly to the states.282 Similar ly, most st ate cou rts u ph eld restrict ion s on the types of weapons which were protected by the state right to arms. Rifles, shotguns, some or all handguns, and swords were protected; but weapons thought to be associated with dangerous characters—in part icular , dirk s and bowie knives—were gen er ally held to be outside the scope of the r igh t to arms. 283 While validat ing par ticular gun contr ols, every nineteenth century state court judge who sa id anyt hin g a bou t the Secon d Amendment, except for one concurring judge in a n 1842 Arkansas case, agr eed t ha t it protected the r ight of individua l Americans to own firearms.
IV. ANTEBELLUM YEARS AND THE CIVIL WAR The right to bear arms was often analyzed with t he issue of slavery in mind. Proslavery and abolitionist commentators agreed: a freedman had the right to bear ar ms, while disarmament was an essent ial characteristic of a slave.
281. In addition to the cases discussed above, see Walburn v. T erritory, 59 P. 972, 973 (Okla. 1899) (holding that a concealed weapon statute “violates none of the inhibitions of the con stit ut ion of th e Un ited Sta tes ”). 282. In addition to the cases discussed a bove, see St ate v. Sh elby, 90 Mo. 302 (1886) (holding t ha t t he Se cond Amen dment is ina pplicable to the states; that a law against carrying concealed weapons in certain pla ces e xcept w he n n eces sa ry for personal defense is valid; that a law a gainst carr ying a weapon while int oxicated is valid; an d t ha t a “re volv in g pi st ol” is w it hi n s cope of st at e r igh t t o ar ms ). 283. But not everyone thought th at dirk s were only for scoundrels. Nathan iel Beverly Tucke r, son of St. George Tu cker (a nd, like his father, a law professor at William and Mary and a stat e court judge) wrote a novel in which one of the heroes (a Virginia n wh o is par ticipat ing in a guer illa war a gainst a tyr ann ical federal government) carries a dirk. S ee N ATHANIEL BEVE RLY TUCKER, THE PARTISAN LEADER: A TALE OF THE FUTURE 12 (197 1) (18 56). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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A. Dred Scott Dred S cott ma y be the best -known case decided by the antebellum Supreme Court. Even persons wh o think th at “Marbury vs. Ma dison ” was a n im por tant boxing m atch may have some passin g familiarity with “Dred Scott.” The Dred S cott case is sometimes found among Standard Model articles on the Second Amendment,284 bu t is en tir ely absen t from the anti-individual right articles. Chief Justice Taney’s majority opinion held that a free bla ck could not be an American citizen. To support this conclusion, Justice Ta ney e numer ated the parade of horribles wh ich would follow from American citizenship for blacks: th ey would ha ve the right to “the full libe rty of speech in pu blic and p riva te u pon all subjects upon which its [a st ate’s] own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”285 Another part of the opinion explained that Congress had no power to infringe upon civil liberty (including, from the Taney Cou rt’s viewp oin t, t he r igh t to pos sess pr operty in the for m of slaves) in the territories: [N ]o one , we p re su m e, will contend that Congress can make
any law in a T er rit ory re sp ect ing the es ta blishm en t of re ligion , or t he fr ee exe rcis e t her eof, or ab rid gin g the fr eedom of sp eech or of th e p re ss, or t he r igh t of t he p eop le of the Territory pea ceably to a ssem ble, an d t o pe tit ion th e G over nm en t for the re dr ess of gr ieva nces. . . . Nor can Congress deny to the people the right to keep and bear arms, nor the right to tria l by jury, nor compel any one to be a wit ness a ga inst him self in a cr im inal pr oceed ing . . . .286
The above statement, which treated the right to arms as one of several enumerated constitu tional r ight s belonging t o
284. S ee, e.g., Kat es, Ha nd gun P roh ibit ion , supra note 1, at 246; Kopel & Little, supra note 1, at 526. 285. Scot t v. San ford, 60 U.S. (19 H ow.) 393, 417 (1856). Of course, Chief Justice Taney did not explicitly say “and the right to keep and bea r arms wher ever they went, which is guara nteed by th e Second Amendment,” any more th an he explicitly said “th e r igh t t o hol d pub lic m eet in gs u pon politi cal affa ir s, w hi ch i s guar ant eed by the Fir st Am end men t.” 286. Id. at 450. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1438 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 individuals, was widely quoted during the debates over slavery an d popu lar sovereignty.287 Dred Scott, while n ever forma lly overru led, is not good law today, having been deliberately in va lid ated by s ect ion one of the Fourteenth Amendment. The purpose in discussin g Dred S cott is not to cite it as binding precedent, but to acknowledge it
287. S ee, e.g., Ste phe n Dou glas, The Dividing Line Between Federal and Local Auth ority: Popu lar S over eign ty in th e Terri tor ies, HARPER’S, Sept. 1859, at 519, 530.
One other s lavery case involving a Su prem e Court Justice should be mentioned. In 1833, two months after Barron v. Baltim ore was decided, Supreme Court Ju stice Henry Baldwin, while circuit-riding, listed the Second Amendment among the individual rights protected by the U.S. Con st itu tion , an d im plie d t ha t t he Secon d Amendment was bind ing on th e st at es. See Johnson v. Tompkins, 13 F. Cas . 840 (C.C.E.D. Pa. 1833) (No. 741 6). T he cas e of Johnson v. Tompkins arose out of a slave- owner’s lawsuit against a Pennsylvania consta ble who had ar rested t he slave-owner for kidn appin g an d bre ach of th e pea ce while th e slave-owner w as a tt emptin g to recapture an alleged runaway slave. After the slave-owner, Johnson, was acquitted of the criminal charges, he sued Tompkins and the others who had arrested him and had int erfer ed with his a tt empt t o recapt ur e his s lave pr opert y. (Justice Ba ldwin instru cted the jur y that although s lavery’s existence “is abhorrent to all our ide as of natural right and justice,” the jury must respect th e lega l sta tu s of slaver y. Id. at 843.) As part of the jury charge, Ju stice Baldwin listed some of th e constitutional rights possessed by the plaint iff, Johnson. Justice Baldwin listed the Pennsylva nia Constitution’s right t o acquire, possess, and protect propert y; the P enn sylvan ia Constitution’s bar on deprivat ion of property except “by the judgement of his peers, or the law of the land”; and the Pennsylvania Constitution’s “right of citizens to bear arms in defen ce of them selves an d th e st at e.” Id. at 850. Ju stice Baldwin then began listing Johnson’s rights under the U.S. Constitution—the Article IV guarant ee tha t “the cit ize ns of ea ch s ta te sh all be e nt itl ed t o th e pr ivile ges an d im mu nit ies of citizens in the several states”; the prohibition on st at e im pa irme nt of th e obli gat ions of contract—and then stated that “[t]he second am endm ent provides , ‘that th e righ t of th e people t o keep a nd bear ar ms s ha ll not be infr inged .’” Id. The rights litany concluded with th e ban on dep riva tion of proper ty wit hou t du e pr ocess. S ee id . Additiona lly, Ju stice Baldwin explained the U.S. Constitu tion’s fugitive slave clause. See id. at 850-51. Ju stice Baldwin ’s list of rights m ade it clear t ha t ea ch of the r ights, including the Secon d Amen dme nt righ t t o arms, was a personal right, since the right belonged to the plain tiff. Sin ce J ohns on’s law su it wa s a ga in st an em ploy ee of a s ub div isi on of th e Pen nsylva nia state government, Justice Baldwin’s listing of the Second Amendment implied that Ju stice Baldwin considered the Secon d Am en dm en t t o be a re st riction on state actions against individuals. In 1837, Justice Baldwin wrote A General View of the Origin and Nature of the Con sti tu tion of th e Un ited S ta tes . S ee H ENRY BALDWIN, A GENER AL VIEW OF THE ORIGIN AND NATURE OF THE CONSTITUTION OF THE UNITED STATES (N .Y., Da Capo Press 1970) (1837). The book focused on the political status of the states and the people, examining the tr ansitions from colony to independent states to confederated stat es to parties to the Constitut ional compact. The book did not address the Second Amendment or the militia. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1439 as one of several nineteenth-century Supreme Court cases involving th e right to arm s—all of which, as we shall see, treat th e Second Amen dment a s an in dividu al r ight .
B. The Human Rights Advocates Antislavery activists deplored Dred Scott, but they agreed with Chief Justice Taney that owning and carrying guns was a badge and in ciden t of freedom and was inconsistent with status as a slave. The abolitionists u sed this theory, however, to reach a conclusion opposite t o Taney’s. Their basic argument was that the instit ut ion of slavery, which prevent ed certa in people from bearing arms, wa s r epugn ant to the Secon d Am en dm en t, wh ich guaranteed the right to bear arms t o all persons. The argum ent thus illust ra tes th e popular ly held belief that the Second Amendment guaranteed a personal right.
1. Lysander Spooner “Lysander Spooner was surely one of the m ost r ema rkable Amer ica n men of letter s of the Nineteenth Century.”288 He wrote impor tant books an d pamph let s on scores of subjects, from int ellectual proper ty t o the righ t t o jury tria l.289 But his greatest passion was antislavery. “[O]ne of the most prominent radical theorists”290 of th e antebellum era, Lysander Spooner was a her o to many a ntisla ver y a ctivist s, in clu ding J ohn Brown, whose raid on Har per’s Ferr y was inspired by reading Spooner.291 Spooner’s prewar writing rema ined influential after the Civil War, m akin g Spooner “pre-eminent in the group of abolitionists who developed the constitutional law now incorporated in the Fourteenth Amen dment.”292 He remains a
288. Tom G. Pa lmer, A re Pa ten ts a n d Co py ri gh ts M or al ly J u st if ie d ? T h e Philosophy of Pr opert y R igh ts an d I dea l Ob jects , 13 HARV. J.L. & PUB. POL’Y 817, 821 (199 0). 289. See, e.g., LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY J UR Y (185 2); LYSANDER SPOONER, THE LAW OF INTELLECTU AL PROPERTY: OR AN ESSAY ON THE RIGHT OF AUTHORS AND INVE NTO RS TO A PERPE TUAL PROPERTY IN THEIR IDEAS (185 5). 290. Ju les Lobel, Losers, Fools & Prophets: Ju stice as Struggle, 80 CORNELL L. REV. 133 1, 1 359 (199 5). 291. See Tom G. Palm er, Book Review, The Ly san der S poon er R ead er (visited Jan. 16, 1998)
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popular author among libertarians and other a dvocates of sma ll government.293 In contrast to Willia m Lloyd Garrison and his Antislavery Society, who denounced the Constit ut ion as pr oslavery,294 Spooner was “t he m ost theor et ically p rofoun d a dvocat e” of th e position th at slavery wa s unconstit ut ional.295 In th e widely- distributed and frequently reprinted book The Unconstitutionality of Slavery, Spooner argued that the Con st it ution should be interpreted according to principles of natural justice.296 His natural justice interpretation of the Second Amendment explained: This right “to keep and bear arms,” implies the right to use
them—as much as a provision securing t o the p eople the right to buy and keep food, would imply their right also to eat it. But this implied r ight t o us e a rm s, is on ly a righ t t o use the m in a manner consistent with natu ral rights—as, for example, in defence of life, liberty, chastity, &c. . . . If the courts could go bey ond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural righ t, t hey cou ld im ply a constitutional authority in the peop le to u se a rm s, n ot m er ely for t he just and innocent purposes of defence, but also . . . robbery, or any other acts of wrong to which arm s are capable of being applied. The mere
slavery was un constitut ional, and t hat he sought instea d to convince abolitionists to seek out j ud ges hi ps , so t ha t t he y cou ld fr ee sla ves ). 293. Spooner distributed many of his works thr ough an a lterna tive mail system, sin ce ma ny pr osla ver y pos tm as te rs re fus ed t o car ry ant islavery literatu re. Spooner’s Ame ri can Mail Company was cheaper than the United Stat es Post Office, which led the Post Office to lower its rates, and Congr ess t o pass “Spooner Acts,” forbidding comp et iti on with th e govern men t post al m onopoly. S ee Dmit ry N . Feofanov, Luna Law: The Libertarian Vision in Heinlein’s The Moon is a Ha rsh Mistress, 63 TENN. L. REV. 71, 133 (1995). Sp ooner is one of th e fat her s of cheap posta ge in Am erica . See Ernest A. Kehr et a l., Look Before You Lick, READER’S DIGEST, Jun e 1947, a t 126 . 294. “The compact which exists between th e North a nd th e South is a covenant with death and an agreement with hell.” William Lloyd Ga rr ison, R esolu tion Ad opt ed by the Ant islavery Society, Jan. 27, 1843, available online at William Lloyd Garrison. 1804-1879. (vis it ed Se pt . 22 , 19 98)
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verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But th e legal im plica tion gives only an auth ority for their innocent use.297 Spooner obviously viewed the Second Amendment as a right belonging to individuals. His exposition is an a nswer to twentieth-century gu n pr ohibition advocates who assert that an individual right t o arms constitu tes a r ight protectin g crimin als who use weapons offensively.298 Spooner used the Second Amendment to argue that slavery was unconstitution al. S in ce a slave is a person wh o cannot possess ar ms, and the Second Amen dment guara nt ees t ha t a ll persons can possess arms, no person in the United States, therefore, can be a slave. Sim ilar ly, th e militia clause—Article I, Section 8—gives Congress the power to have everyone armed. He elaborated: These pr ovisions obv iously r ecogn ize t he n at ura l righ t of
all m en “to ke ep an d b ea r a rm s” for their personal defence; and prohibit bot h Con gr ess a nd t he S ta te gove rn m en ts from infring ing th e r igh t of “th e p eop le”—t h at is, of any of th e people—to do so; and m ore esp ecially of any whom Congress have power to include in their militia. The right of a man “to keep and bea r a rm s,” is a r ight p alp ab ly inconsisten t w ith th e ide a of his bein g a slave. Yet the right is secur ed a s effectua lly to those whom th e S ta te s p re su m e t o call sla ves , as to a ny whom the States condescend to acknowledge free. Under th is p rov ision an y m an has a r igh t e ith er to give or sell arm s to those persons whom the States ca ll s la ve s; a n d there is n o constitutional power, in either the national or State
297. LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY 66 (Burt Fr an klin 1965) (1860). For reprinted selections, see Lysander Spooner, The Unconstitutionality of Slavery, 28 PAC. L.J . 101 5, 1 022 (199 7). 298. S ee, e.g., ROSCOE POUND, THE DEVELOPMENT OF CONS TITU TION AL GUARANTEES OF LIBERTY 91 (19 57) (“In th e u rb an ind us tr ial societ y of t oday a general right to bear efficient arms so as to be enabled to r esist oppression by the government would mean t hat gangs could exercise an extr a-legal r ule wh ich would defeat th e wh ole Bi ll of Righ ts .”). Alth ough Pou nd is sometimes cited by opponents of th e Sta nda rd Model, Poun d’s point is not rea lly tha t the Standard Model is wrong as a m at te r of hi st ory, b ut sim ply th at th e S econ d Am endment is n o long er a good idea as a m att er of public policy. Pound’s view that th e Second Amendm ent could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be con sid er ed con st itu tion al i n m oder n t im es, ba sed on changed social needs. See generally Roscoe Pou nd, Mech an ical J ur isp ru den ce, 8 COLUM. L. REV. 605 (190 8). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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governmen ts, that can punish him for so doing; or that can take those arm s from the slaves; or that can ma ke it criminal for th e sla ves to u se t he m , if, from t he ine fficiency of th e la ws, it sh ould b ecom e n eces sa ry for t hem to d o so, in defence of th eir own lives or lib er tie s; for t his con st itu tion al right to keep arms implies the constitu tional right to use th em, if need be, for the defence of one’s liberty or life.299 Twentieth centur y rea ders are n ot required to find
Spooner’s argument persuasive. Article IV, S ect ion 2 of the Con st it ution , requir ing the r etu rn of fugitive slaves, obviously contemplated that persons in the United States could be slaves.300 Instead, the point for purposes of this article is that Spooner saw the Second Amendment as guaranteeing an individual right to own and u se gu ns for self-defense or defense of others, and he used this fact in arguing against slavery. Spooner made further use of the Second Amendment’s individual right to arms in other arguments. Advocating the righ t of fugitive slaves to use weapons to resist recapture, Spooner wrote: The cons tit ution contemplates no such submission, on the
part of the people , to t he u su rp at ions of the gov er nm en t, or to the lawless violence of its officers. On the contrary it provides that “The right of the people to keep and bear arms shall not be infrin ged .” This cons tit ution al secu rit y for “the right to keep and bear arms,” implies the right to use them . . . . The cons tit ution , th er efore, ta kes it for gr an ted t ha t, a s the peop le have the right, they will also have the sense, to use arms, wh en ever t he ne cessit y of th e case ju stifies it.301
299. SPOONER, supra note 297, at 98. 300. See U.S. CONST. ar t. IV, § 2, cl. 3 (“No Person h eld to Ser vice or Labou r in one St at e, u nd er th e La ws t he re of, esca pin g in to a not he r, s ha ll, in Con seq ue nce of any Law or Regulation therein, be discharged from such Service or Labou r, bu t sh all be delivered up on Claim of the Party to whom such Service or Labou r m ay be d ue .”). Spooner att acked this clause by claiming that since th e clause did not specifically me nt ion slaves, the claus e shou ld, consist ent with na tu ra l just ice, be rea d as a pplying to indentured servant s. 301. LYSANDER SPOONER, A DEFEN CE FOR FUGITIVE SLAVES 27 (1850). The Fu gitive Slave Act promoted widespread violence in the recapture of fugitive slaves, in Nort her n wh ite vigilan te r esist an ce to th e slave -hun ter s an d to feder al aut horit ies, and in th e u se of th e U .S. mi lit ar y a ga in st th e vi gila nt es . “In th es e fr igh tfu l circumstances, blacks warned t heir fellows to keep firearms close at h an d.” NELL IRVIN PAINTER, SOJOURNE R TRUTH: A LIFE, A SYMBOL 133 (199 6). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Similar ly, Spooner argued that unconstitutional laws need not be obeyed pen ding their r epea l; to requ ire obedience to unconstitutional laws would be to allow the governm ent “to disarm the people, suppress the freedom of speech and the press, prohibit th e us e of suffra ge, an d thu s pu t it beyond the power of the people to reform the government through the exercise of those rights.”302 Thus, the right to arms provided one of the ways in wh ich people cou ld rea ss er t control over an erring government. In Spooner’s best seller, the 1852 An Essay on the Trial by Jury, he used language drawn from the paragraph quoted above to prove that the “right of resistance is recognized by t he constitution of the United St at es.”303 In the 1860 Address of the Free Constitutionalists, Spooner again ma de the argumen t that “the right to keep and bear arms implies the right to use them, and, th erefore, this is an in herent righ t of people to resist criminal assault s when t he governm ent fails to provide protection.”304
2. Joel Tiffany Joel Tiffany ma de h is living as the reporter for the New York Court of Appea ls, as an author of legal treatises,305 and as publisher of Tiffany’s Monthly magazine. But like Lysander Spooner, he was consumed with the antislavery cause. Lysander Spooner and Joel Tiffany were “the ‘principal spokesmen’ and theorist s of the abolitionist movem ent.”306 “Spooner’s an d Tiffany’s import an ce is recognized by nea rly all.”307 The Spooner and Tiffany theory that the Constitution
302. SPOONER, supra note 297, at 104. 303. LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY J URY 17 (1 852 ). 304. LYSANDER SPOONER, ADDRESS OF THE FREE CONSTITUTIONALISTS TO THE PEOPLE OF THE UNITED STATES 25 (2 d e d. 1 860 ). 305. See JOEL TIFFANY, THE NEW YORK PRACTICE: A TREATISE UPON PRACTICE AND PLEADINGS IN ACTIONS AND SPECIAL PROCEEDINGS (186 4-18 65); J OEL TIFFANY, THE LAW OF TRUSTS AND TRUSTEES, AS ADMINISTERED IN ENGLAND IN AMERICA (186 2). 306. RAOUL BERGER, GOVE RN ME NT BY J UDICIARY: THE TRANSFORMATION OF THE FOURTEE NTH AMENDMENT 22 (1977); Raou l Berger, Bruce Ackerman on Interpretation: A Critique, 19 92 BYU L. REV. 1035, 1043 n .43 (1992) (reviewing B RUCE ACKE RMAN , WE THE PEOPLE : FOUNDATIONS (199 1)). 307. Trisha Olson, The Natural La w F oun da tion of th e Pri vil eges or Im m un iti es Clause of th e Fou rt eent h A m end m ent , 48 ARK. L. REV. 347, 373 n.109 (1995) (citing various sch olar s); see also WILLI AM M. WIECEK, THE SOURCES OF ANTISLAVERY D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1444 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 guaranteed certain rights to all citizens “marked out a path for using the doctr ines of su bstantive du e process a nd of t he natural law privileges and immunities of citizenship to further min ority freedom.”308 Like Spooner, Tiffany argued that the Second Amendment’s guarantee of a righ t to arms applied to all persons, and since an ar med ma n could n ot be a slave, slavery wa s unconstit ut ional. Here is another of the immu nities of a citizen of the United
States, which is guaran teed by th e su pr em e, organ ic law of th e land. This is one of the subordinat e rights, m entioned by Bla cks ton e, as belonging to every Englishman. It is called “subordina te” in reference to the great, abs olu te ri gh ts of m an ; and is a ccord ed to ever y su bje ct for th e p u rpos e of protecting and defend ing h im self, if need be , in t he en joym en t of his absolute rights to life, liberty a nd property. And th is gua ra nty is to all without any exception; for there is none, either expressed or im plie d. An d ou r cou rt s have already decided, that in such cases we have no right to make any exceptions. It is har dly n ecess ar y to r em ar k t ha t t his gu ar an ty is ab solu tely inconsistent with perm itting a port ion of our citizens to be enslaved. The colored citizen, under our constitution, has now as full and perfect a right to keep and bear arms as any other; and no State law, or State regulation has au thority to dep rive him of that right. But th er e is a n ot h er th in g im pl ied i n th is gu a ra n ty; a n d that is the right of self defence. For the right to keep and bear arm s, also implies the right to us e the m if necessa ry in s elf defence; with out t his right t o use the gu ar an ty wou ld ha ve hardly been worth the paper it consumed.309
CONSTITUTIONALISM IN AMERICA, 1760-1848, at 269 (1977); Micha el Ken t Cu rt is, The Bill of R igh ts as a Li m ita tion on S ta te A ut hor ity : A R eply to P rofes sor B erger , 16 WAKE FOREST L. REV. 45, 55 (1 980 ); John Choon Yoo, Our Declaratory Ninth Amendment, 42 EMO RY L.J . 967, 1000 (1993) (“Influential abolitionist writers such as Lysander Sp oon er an d J oel T iffa ny . . . . ”). 308. David S. Bogen , The Tran sfor m at ion of th e Fou rt eent h A m end m ent : R eflect ion s from the Adm ission of Maryland’s First Black Lawyers, 44 MD. L. REV. 939, 964 (198 5). 309. J OEL TIFFANY, A TREATISE ON THE UNCONSTITUTIONALITY OF AME RICAN SLAVERY 117-18 (1849). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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C. Bloody Kansas D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1446 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998
Just as the civil war in Spa in served as a prelude to World War II, civil war broke out in the Territory of Kansas several years before the American Civil War . Following th e 1854 Kansas-Nebraska Act, prosla very and antislavery settlers rushed in to take control of the territory and win the vote on whether Kan sas would join the U nion as s la ve or free. Th e pro- slave forces, with hea vy s upp ort from “Border Ru ffians” in Missouri, stuffed ballot boxes, violently drove free soilers away from th e polls in 1855, a nd expelled all slavery opponents from the territorial legislature. The free-soil settlers asked for gu ns for themselves, and the Massachusetts Em igra nt Aid Compan y prompt ly began smuggling Shar ps Rifles t o Kansas. (The Company falsely claimed that while some of its members might be sending rifles, th e arm am ent program was not officially run by th e Compan y.) The Sharps were high-tech rifles, in corpor atin g t he n ew br eech loading design (as oppos ed to loading from the m uzzle).310 The rifles did t heir job and ra pidly even ed the bala nce of power in Kansas. The proslaver y governm ent , however, attem pted, with some success, to disarm various armed groups of free-soil men.311 On May 19, 1856, Massachusett s Sena tor Charles Sumner—an an tislaver y radical—r ose to deliver wha t would become one of the most famous orations ever deliver ed on the floor of the United St at es Senat e. Sumn er’s speech, “The Crime against Kansas,” cont in ued until t he t wentiet h of Ma y. South Carolina Senator A.P. Butler had allegedly remarked that the people of Kansas should be disarmed of their Sharps rifles. Sumner thundered:
310. Invented in 1848, t he Sh ar ps could fire five r ound s a m inu te; it rapidly displaced muzzle-loading guns and was especially popular in the West. John Brown’s raiders carr ied t he S ha rps carb ine (a type of short rifle). See HAROLD F. WILLIAMSON, WINCHESTER: THE GUN THAT WON THE WEST 5 (19 52). 311. See JAY MONAG HAN, CIVIL WAR ON THE WESTERN BORDER 1854-1865 (195 5). Although th e a boli ti on mo vem en t h ad a s tr ong st ra in of non-resistance and pacifism, the “Beecher Bibles” were widely approved. For example, Wend ell Ph illips sa id, “I believe the age of bullets is over. I believe the age of ideas is come . . . . Yet, let me say, in pa ssing, tha t I t hin k you can ma ke a bett er u se of iron than forging it in to chains. If yo u m u s t h a ve m et a l, pu t it in t o S h a r pe ’s [s ic ] r if le s.” L AWRENCE J. FRIE DMAN , GREGARIOUS SAINTS: SELF AND COMMUNITY IN AMERICAN ABOLITIONISM, 1830-1870, at 210 (1982) (omiss ion in origin al). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Really, sir, ha s it come to t his ? The rifle has ever been the
com pa nion of the pioneer and, under God, his tutelary protector aga in st th e r ed m an an d t h e b ea st of th e forest. Never was this efficient weapon more nee de d in ju st se lf- defence, than now in Kansas, and at least one article in our National Constitution m ust be blotted out, before the complete right to it can in any way be impeached. And yet such is the ma dness of the hour, that, in defiance of the solemn gua ra nty, embodied in the Amendments to the Constitution, that “the right of the people to keep and bear a rms shall not be infr inged ,” the p eop le of Kan sa s h av e be en ar ra ign ed for keeping and bearing them, and the Senator from South Carolina has had the face to sa y open ly, on th is floor , tha t they should be dis ar m ed —of cou rs e, t hat th e fa nat ics of Sla ver y, his allies and cons tit uen ts , m ay m eet n o im pe dim en t. S ir, t he Senator is ven er ab le . . . but n eithe r h is yea rs , nor h is p osit ion, past or p re sen t, can g ive r esp ecta bility to the demand he has ma de, or s ave him from indignant condemnation, when, to compass the wretched purposes of a wretched cause, he thus proposes to tram ple on one of the p lainest p rov ision s of constitu tional liberty.312
Senator But ler indigna ntly replied that he had never proposed disarming the people of Kansas. He had simply proposed brin ging before appropriate judicial authority “an organized body” who possessed Sharps rifles.313 But eve n if Sen ator Bu tler could claim that his remarks were misunderstood, antislavery Congressmen had no doubt
312. CHARLES SUMNER, THE KANSAS QUESTION. SENATOR SUMNER’S SPEECH , REVIEWING THE ACTION OF THE FEDERAL ADMINISTRATION UPON THE SUBJE CT OF SLAVE RY IN KANSAS 22-2 3 (Cin cin na ti , G. S . Bla nch ar d, 1 856 ) (re pr in ti ng sp eech delivered on the floor of th e Sen at e, May 1 9-20, 1856), also available online at
1448 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 about the atrocities being perpetrated in Kansas. Repr esen ta tive G.A. Grow of Pennsylvania, for example, gave a litany of constitutional abuses perpetrated by the proslavery government in Ka nsas, including: “With the shout of law and order you disa rm th e citizen, while t he Constitu tion of his country declares that the right ‘to keep and bear arms shall not be infringed.’”314 The 1856 national Republican Convention resolved that “the dearest cons tit utional righ ts of t he people of Kansas have been fraudulently an d violently t ak en from t hem . . . the rights of the people t o keep an d bea r a rm s have been infringed.”315 The federal governm ent, obvious ly, ha d done not hin g to interfere with t he official militia of the proslavery government in Kansa s. Yet the Republicans s till sa w a viola tion of the Second Amendment : some of the stat e’s citizens wer e being disarmed because they considered the current state government illegitimate. Indeed, the event that had p recip it ated Repu blican Sumner’s speech was the “Sack of Lawr en ce,” in wh ich the Kansas territorial militia, bearing arms supplied by the Un ited States government and under the command of a deputy federal marshal, confiscated the guns of a group of free-soilers.316 The Republicans, seeing their constituents disarmed, invoked the Second Amendmen t. H owever, soon the Democrat s would in voke the Second Amendment to protest the disarmament of citizens who did not belong to active sta te m ilitias.
D. The Civil War During the Civil War, President Lincoln ordered many suppressions of civil liberties . His su sp en sion of habeas corpus in states which were n ot in rebellion aga in st the U nion , through which he imprisoned n ewspaper editors and other
314. G.A. Grow, Adm ission of Kans as, J un e 30, 1856 , reprinted in POLIT ICAL SPEECHES, PARTLY IN THE HOUSE AND SENATE, DEALING MAINLY WITH KANSAS AND SLAVERY 7 (Wash ingt on 1855), als o av ail abl e onl ine
1359] SECOND AMENDME NT IN THE 19TH CENTURY1449 persons who criticized the war, is the most famous.317 Less well known are the Union government’s confiscations of firearms. Although Maryland and Missour i never seceded, both states had significant pockets of Confederate sympathizers. In Missouri, Union General John C. Frémont issued an order declaring that all persons in a certain ar ea found in possession of arms would be shot.318 Later, General Marsh ordered a genera l confiscation of all arms and ammunition, “not in the hands of the loyal m ilitia” and the transfer of all such arms and ammunition to the m ilitia.319 Confederates made sur e that Lincoln’s actions were publicized in the South; as on e book p ut it: “The right of th e people to keep and bear arms shall not be infringed, says the constitution; but upon t his privilege he has tr am pled in Ma ryla nd, Missouri an d Ken tu cky.”320 The 1864 Dem ocratic Convention denounced Lincoln’s suppr ession of civil liberties, condem nin g “the subversion of th e civil by military law in States not in insurrection; the arbitr ary military ar rests . . .; the supp ression of freedom of sp eech and of
317. S ee, e.g., Ex part e Milligan, 71 U.S. (4 Wall.) 2 (1866). See generally MARK E. NEELY, JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991) (dealing exclusively with habeas corpus iss ue s a nd de fen din g Li nco ln ’s act ion s). 318. See 3 WAR OF THE REBELLION, ser. 1, 467 (Frémont’s Declaration of Martial Law, Aug. 30, 186 1), quoted in HALBROOK, THAT EVER Y MAN BE ARMED, supra note 1, at 233 n.96. Frémont , of cour se, had been the 1856 Republican Presidential candidate and had run on a p lat form den oun cing th e pr osla ver y govern me nt of Kansas for the sam e th ing h e was now doing. 319. 13 id. at 506, quoted in HALBROOK, THAT EVERY MAN BE ARMED, supra note 1, at 233. In defense of Lincoln’s actions against people living in Confederate states, William Wh iti ng list ed v ar ious ind ividua l ri ghts pr ote cte d by t he Con st itu tion an d then showed that t hey could not be applicable in time of war; otherwise, the arm y would not be able to kill enemy soldiers without due pr ocess. Similarly, “[i]f all men ha ve the right to ‘keep and bear arms’ what right has the army of the Union to take them aw ay from r ebe ls?” H e con clu de d t ha t t he Bill of Ri gh ts “[was ] in te nd ed as [a] de cla ra ti on[] of the rights of peaceful an d loyal citizen s,” and t her efore ina pplicable to th e Sout her n r ebels. W ILLIAM WHITING, THE WAR POWERS OF THE PRESIDENT AND THE LEGISLATIVE POWERS OF CONGRESS IN RELATION TO REBELLION, TREASON, AND SLAVERY 49-51 (Bos ton , J .L S hore y 18 62) available at
1450 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 the press; . . . and the int erference with an d denial of the right of the people t o bear ar ms in t heir defence.”321 Also in 1864, one of Lincoln’s strongest northern Democrat crit ics, C. Chauncey Burr, authored Notes on the Constitution of the United States.322 The book analyzed the Constitution clause by clause, adding commentary intended to show that President Lincoln wa s viola tin g t he Constitution. Regarding federal milit ia powers, Burr noted that the Constitution provided that the militia could be called into federal service for three purposes only: “to execu te the Laws of the Union, suppress Insurrections, and repel Invasions.”323 Burr contended that the militia was being used improperly in the Civil War because the war was not being fought to execute the laws of the Union, but to abolish slavery and to subjugate the South. There was no insur rection since state governments (as opposed to individuals with in a state) could not commit insurrection: state governments “a r e not subjects. They ar e sovereign bodies.”324 And obviously, there was no foreign power invading the United States. In discussing the next clause of the Constitution (granting Congress authority over militia training standards and discipline, while reser ving to states the appointmen t of militia officers an d su pervision of militia training),325 Burr commented, “The milit ia is strictly a Sta te instit ut ion. . . . The object of this provision is to preserve the State character of the militia—to keep it a s repr esen ta tive of State sovereignty, even while it is but for a specified service under the direction of the United States.”326 Th is wou ld have b een the per fect tim e t o crit icize Lincoln for violating t he Second Amendment had Burr thought that the Amendment protect ed sta te militia from federal
321. E. POLLARD, THE LOST CAUSE 574 (1867), qu oted in HALBROOK, THAT EVERY MAN BE ARMED, supra note 1, at 233 n .96. 322. C. CHAUNCEY BURR, NOTES ON THE CONSTITUTION OF THE UNITED STATES (N.Y., J . F. Fe ek s 18 64). Bu rr als o foun ded a monthly journal, The Old Guard , and sometimes wrot e for a N ew York n ewspape r, The Day Book or Caucasian. Few Northerners sur pas sed Bu rr ’s stron g opposit ion to Lincoln’s policies. See NEELY, supra note 317, at 57. 323. U.S. CONST. art . I, § 8, cl. 15. 324. BURR, supra note 322, at 30-31. 325. See U.S. CONST. art . I, § 8, cl. 16. 326. BURR, supra note 322, at 34. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1451 inter ference. Bu t the Secon d Am en dm en t wa s a bsen t from Burr’s criticism. Instead, the Second Amendment discussion came much later. Bur r quoted J ustice Story at length on how tyrants “accomplish their pur poses . . . by disa rm ing t he people.”327 “The presen t a dministr at ion,” cha rged Bur r, “has violated this article of the Constitut ion in every particular. It ha s, in a great many instances, disarmed the people by forcibly entering their houses an d seizin g their a rm s of every description.”328 Burr also complained that the Lincoln administration had “substituted United States soldiery for militia” and had imposed de facto martial law by stationing r egular tr oops in N ew York City. And, as Akhil Amar would argue many years later,329 Burr wrote that federal conscription for a standing army violated the Second Amendment, since conscription “tends to annihilate” the ranks of the state militias.330 To Bu rr, Lincoln ’s firea rm confiscation s appa rently violated the main clause of the Second Amendment (“the righ t of the People”), while Lincoln’s relian ce on a conscripted st an ding army at the expen se of the m ilitia viola ted the in trodu ctory clause (“A well-regu la ted militia , be in g n ecess ary t o the security of a free St ate”), wh ich is why Lin coln’s policies could be said to violate the Second Amendment “in every particular.”331 Whether Lincoln’s policies were righ t or wrong is not the subject of this a rt icle. The objections of the Democra tic Con ven tion and Burr to Lincoln’s action s reflected the belief
327. Id. at 80. 328. Id. Here, Bur r accused the Lincoln government of the same a ct perpetr ated more tha n a centu ry later by the Chi cago Housin g Auth ority, with the encouragement of th e Cli nt on a dm ini st ra tion . See Pra tt v. Chicago Hous. Auth ., 848 F. Supp. 792 (N.D. Ill. 1 994) (h oldin g th at police swe eps of pu blic h ous ing in or der to confi sca te firearms wa s u nco ns ti tu ti onal ). 329. See Amar, Th e Bil l of R igh ts a s a C ons tit ut ion , supra note 1, at 1171-73. 330. BURR, supra note 322, at 81. Rep. Samuel Sullivan Cox made the same argument on Feb. 26, 1863, in opposition to the Lincoln administration’s Con scr ipt ion Bill. Cox relied m ain ly upon t he m ilitia clauses an d J ust ice Story, bu t a lso cited the Secon d Amen dme nt . See SAMUEL SULLIVAN COX, EIGHT YEARS IN CONGRESS, FROM 1857 TO 1865, at 313 (New York, D. Apple ton & Co. 1865), als o av ail abl e online
1452 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 that the Second Amendment gua ranteed the right of individuals to bear arms. V. RECONSTRUCTION AND LABOR UNREST A. Con gres s, Civ il Righ ts, and th e Fou rteenth Am endm ent After the Union victory in the Civil War, Congress debated and pa ss ed va riou s m ea su res, such as t he Civil Righ ts Act and th e Fourt eenth Amen dment, design ed t o protect t he civil rights of freedmen. During this period, the Second Amendment was mentioned ma ny times in Congressional testim ony, in r eports to Con gr ess, in Com mit tee reports, and in floor debates.332 These statements treated the Second Amendment as an individual righ t. Record s of Congress from this era are replete with references to the “right” to ar ms, but since this art icle is about the Second Amendment, and not about the state constitutional or natural right to arms, this article quotes only those st atem en ts t hat sp ecifically refer to the Secon d Amendment.
1. The Freedmen’s Bureau The Freedm en ’s Burea u reported to Con gr ess on the numerous abu ses of civil r igh ts t aking place in the defeated Southern states. For exa mple, in Kent ucky, “[t]he civil law prohibits th e colored ma n from bearin g arms . . . . Their arms are taken from them by the civil authorities . . . . Thus, the righ t of the people t o keep and bear arms as provided in the Con st it ution is infringed . . . .”333 Sim ila rly, Gen er al Ru fus Saxton, the former assistant commissioner of the Freedmen’s Bu rea u in Sou th Ca rolin a, provid ed Con gr ess w it h evidence that in some par ts of th is S ta te ar m ed pa rt ies ar e, w ith out
proper authorit y, en gaged in s eizin g all fire-a rm s foun d in th e hands of th e fr eedm en . Su ch condu ct is in pla in and d irect viola tion of their personal righ ts a s gua ranteed by the Con st itu tion of the United Sta tes, which declares that “the right of the people to keep and bear arm s shall not be infr inged .” The freedm en of South Ca rolina ha ve shown by their pe acefu l and or de rly con du ct t hat t hey ca n sa fely be
332. For the discussion of the Fourteen th Amen dment and t he sta tut es which led up to it , th e a ut hor is d eep ly in deb te d t o St eph en Ha lbr ook. 333. H.R. EXEC . DOC. NO. 70, at 233 , 23 6 (18 66). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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trusted with fire-arms, and th ey need them to k ill ga m e for subsistence, and to protect their crops from destruction by birds and anim als.334
Throughout Reconstruction, many witnesses and special committees complained that unreconstructed governments and terrorist organizations, such as the Ku Klux Klan, were violatin g the Second Amendment rights of freedmen by disarming them.335 To addr ess the civil righ ts viola tion s, Con gr ess t ook u p Senate Bill 60, a bill to expand the powers of the Freedmen’s Bureau. Dur ing debat e over the bill, Kent ucky Democra tic Senator Garret Davis emphasized that a shared commitment to civil libert y united Americans more tha n par ty factionalism divided them: But there were some prin ciples upon which those grea t, gra nd,
noble old parties agreed; and what were they? . . . They were for every man bear ing his arm s about him an d keeping th em in his house, his castle, for his own defense. They were for every right an d liberty secured to the citizen by the Constitution.336 In the House, Massachusetts Congressman Nat haniel
Banks announced his plans to offer an a men dment to the bill “insert ing after t he word ‘includin g’ the words ‘the constitutional right t o bear ar ms;’ so that it will r ead, ‘including the constitutional right to bear arms, the right to make and enforce contracts, to sue.’”337 As passed by Congress, t he final bill reflected Banks’s desire for a specific r ecognit ion of th e individual right to arms:
334. REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION, H.R. REP. NO. 39-30, pt. 2, a t 2 29 (1 866 ). 335. See Ha lbrook, Personal Security, supra note 1, at 353-54, 363, 384-88, 396- 97, 401-02, 405-08, 414-15, 418, 424. Related to the complaints about disarmament were complaints about Southern governments’ tolera nt at titude a bout w hit e violence aga inst blacks. Virginia att orney George Tu cke r (ye s, on e of the des cen da nt s of Hen ry St. George Tucker) testified about th e nee d for Congr essiona l action t o protect blacks a gainst such abuses of the unr econstructed gover nm en ts : “Th ey h ave not an y ide a of pros ecu tin g wh ite me n for offenses a ga in s t col or ed pe op le ; t h ey do n ot a pp r ec ia t e t h e i de a .” McCleskey v. Kemp, 481 U.S. 27 9, 347 n .2 (1987) (quotin g H.R.J . COMM. REP. NO. 39-30, pt. 2, at 25 (186 6)). 336. CONG. GLOBE, 39t h C ong., 1 st Se ss . 37 1 (18 66). 337. Id. at 585. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1454 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998
That in every State or dis tr ict wh er e t he or din ar y cou rs e of
jud icial proceedings has been inte rr upt ed by t he r ebe llion , an d until the sam e sha ll be fully restored . . . the right to make and enforce contracts . . . an d t o ha ve fu ll an d eq ua l ben efit of all laws and p roceedin gs concerning personal liberty, personal security, and the acqu isit ion, en joym en t, a nd d isp osit ion of estate, real a nd per son al, in clud ing the constitutional right to bear arm s, shall be secured to an d e njoyed by a ll th e cit izen s of such State or district without r espe ct t o ra ce or color, or previous condition of slavery.338 President J ohnson vet oed the bill. Con gr ess, however , ca me back with the Second Freedmen’s Bureau Bill, which it passed over President Johnson’s veto. Section 14 of that Second Bill contained the same lan gua ge as th at quoted above, protecting “the constitutional right to bear arms.”339
2. Southern representation in Congress In early 1866, Congress took up the question of whether the defeated states should be allowed repr esentation in Congress. During the debate, Nevada Senator James W. Nye stated that “[a]s citizens of the Un ited St at es [freedm en] have equal r ight to protection, and to keep and bear arms for self-defense. They ha ve long cherished the idea of liberty . . . .”340 In support of Southern represen tation , Illin ois Repr esen ta tive Anthony Thornton suggested that once the war had ended, all constitutional rights were immediately restored. In support of this theory, he argued: In all of the northern States, du rin g th e w ar , th e p riv ilege of
the writ of habeas corpus wa s susp en de d; fr eedom of sp eech was denied; the freedom of the press was abridged; the right to bear arms was infringed . . . . Our rights were not ther eby destroyed. Th ey are in h er en t. U pon a re voca tion of th e proclamation, and a cessation of th e sta te of th in gs w hich prompt ed these arbitrary measures, the Con st itu tion and laws woke from their lethargy, and again became our shield and safeguard.341
338. Act of J ul y 16 , 18 66, 14 S ta t. 173 , 17 6-77 (186 6). 339. 14 St at . 17 3, 1 76 (1 866 ). 340. CONG. GLOBE, 39t h C ong., 1 st Se ss . 10 73 (1 866 ). 341. Id. at 1168. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Thus, Senator Nye and Repr esentative Thornton viewed the Second Amendment right to arms as a personal right, similar to the other rights in the first eight amendments.
3. Civil Rights Bill Rep. Henry Raymond (R-N.Y.) served on t he J oint Committee on Reconstruction and as an editor of the New York Times. He sta ted in support of the Civil Rights Bill: “Make the colored man a citizen of the United Sta tes and he has every right which you or I have as citizens of the United Sta tes under the laws and Constitution of the United States . . . a right to defend himself and his wife and children; a right to bear arms . . . .”342 Another N ew York Republican, Roswell Ha rt, argued th at th e Const itu tion requir ed st at es to maint ain a republican form of govern ment , which meant , inter alia, a government “where ‘the right of the people t o ke ep and bear arms shall not be infringed;’ . . . . Have these rebellious States such a form of governmen t? If th ey ha ve not, it is the du ty of the United States to guar an ty t ha t t hey ha ve it speedily.”343 If the Second Amendment only protected state governments against th e feder al governm ent, t hen Rep. Hart’s statement that the Second Amendment must be obeyed by state governments would make no sense. Rep. Sidney Clarke of Kansas agreed with t he New Yorkers: [I] find in th e Con stitu tion of the U nit ed S ta tes a n a rt icle
which declares that “the right of the people to keep and bear arms sh all not b e in frin ged .” For m yse lf, I shall insist that the reconstructed rebels of Missis sipp i respe ct the Con stitu tion in th eir local laws . . . .344
4. Anti-KKK Act The frequen tly-invoked feder al civil r igh ts s tatutes, wh ich allow criminal and civil prosecution of state officials who violate federal ci vi l r ig h t s , w er e cr ea t ed by t h e “An t i- KKK Act .” T h e Committee Repor t on the Act explained, “in many counties they
342. Id. at 1266. 343. THE RECONSTRUCTION AMENDME NTS’ DEBATES 193 (Alfr ed Avin s e d., 196 7). 344. CONG. GLOBE, 39t h C ong., 1 st Se ss . 18 38 (1 866 ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1456 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 have preceded their outrages upon him [the freedman] by disarming him , in viola tion of his right as a citizen to ‘keep and bear arms,’ which the Constitution expressly says shall never be infringed.”345 Rep. Benjamin Butler (R-Mass.) elaborated: Se ction eigh t is inte nde d t o en force the well-known
constitutional provision guarant eeing the right of the citizen to “keep and bear arm s,” and provides that whoever shall take away, by for ce or violen ce, or b y threats and intimidation, the arms and weapons which any person m ay h ave for his defense, shall be deemed gu ilty of larceny of the same.346 Tennessee Democrat Washington C. Whitt horne objected that the lawsuit provision of the anti-KKK act (allowing lawsuits for deprivation of constitutional rights) would allow a New York police officer who disarmed a drunk to be sued, “because the right to bear arms is secured by t he Constit ut ion.”347
5. Fou rteenth Am endm ent When deba te on the F ourteenth Amen dm en t bega n, some members of Congress ar gued that the Thirteenth Amendment already gave Congress sufficient power to address Southern laws which prevented the ex-slaves from enjoying the status of free men. Supporting this position, Kansas Senator Samuel Pomeroy asked: And what are the safegu ar ds of liber ty unde r ou r for m of
Government? There a re at least, under our Constitution, three which are ind ispensable— 1. Every man should have a homestead, that is, the right to acquire and hold one, and th e right to be safe and pr otected in th at cita de l of his love. . . . 2. He should ha ve the right to bear arms for the de fen se of him self and family and his homestead. And if th e ca bin door of the freedman is broken open and the intruder enters for purposes as vile a s wer e know n t o slaver y, th en sh ould a w ell- loaded musket be in the hand of the occupant to send the
345. H.R. REP. NO. 41-3 7, a t 3 (187 1). 346. Id. at 7. 347. CONG. GLOBE, 42d Con g., 1 st Se ss . 33 7 (18 71). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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pollute d w re tch to another world, wh er e h is wr etchedn ess will for ev er rem a in com pl et e; a n d 3. H e sh ould h av e t he ba llot . . . .348 Congressmen exp ressed t heir in ten tion to remedy t he depr ivation of Second Amendment rights through corrective statutes, an d eventu ally through the Fourteenth Amendment. For example: Senator Howa rd . . . explicitly invoked “the right to keep and
bear arms” in his important spe ech cat alogu ing the “pers onal rights” to be protected by the Fourteenth Amendment. Howard and others may ha ve be en influ en ced by th e a nt ebellum constitutional commentator William Rawle, who had argu ed in his 1825 tr ea tis e t hat t he S econd Amendm ent a s written lim ite d b oth st at e a nd fede ra l gove rn m en t . . . .349 As Eric Foner observes,
[I]t is abun dan tly clear tha t th e Repu blicans wish ed to give
cons tit ution al sa nction to s ta te s’ obliga tion to respect such key pr ovisions as fr eedom of sp eech, the right to bear arms, trial by impartial jury . . . . The Freedman’s Bureau had already taken steps to protect these rights, and the Amendment was deemed necessary, in part, pr ecisely b eca use eve ry one of them was being systematically violated in the South in 1866.350 After the Am en dm en t had been ratified, it s Congr essional sponsors explained its meaning in r elation to other legislation. For example, J onathan Bin gh am (R-Ohio), discuss in g sect ion 1 of the Fourteenth Amendment, stated “that the privileges and immunities of citizens of the United St at es, . . . are chiefly defined in the first eight amendments to the Con st it ution of th e United Stat es.”351 After listing the amendments, Bingham explained: “These eight articles I have shown never were limit ations upon t he power of the Stat es, unt il ma de so by the fourteenth amendment.”352
348. CONG. GLOBE, 39t h C ong., 1 st Se ss . 11 82 (1 866 ). 349. Amar, Th e Bill of Rights a s a C ons tit ut ion , supra note 1, at 1167 (quoting CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866)). Senator Howard had “a wide reading kn owled ge n ot on ly of la w a nd his tor y, bu t a lso of liter at ur e.” Ja mes O. Knauss, Jacob Merritt Howard, in DICT. AM. BIO., supra note 90. 350. ERIC FONER, RECONSTRUCTION 258-59 (198 8). 351. CONG. GLOBE, 42d Con g., 1 st Se ss . a pp . a t 8 4 (18 71). 352. Id. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Rep. Henry Dawes (R-Mass.) agreed with Bingham that the Fourteenth Amendment “privileges” incorporated the first eight amendments against sta tes, so a citizen “had secured to him the right to keep and bear arms in his defense.”353 Later, Senator Allen G. Thurman (D-Ohio) agreed that the “rights, privileges, and immunities of a citizen of the United States” included all the rights secured by the first eight amendments, which he describe d in order, in clu ding t he r igh t to bear arms: “Here is another right of a citizen of the United States, expressly declar ed to be his right—the right to bear arms; and th is right , says the Constit ut ion, sh all n ot be in fringed.”354
6. The Civil Rights Act of 1875 Georgia Democrat Thomas M. Norwood stated that U.S. citizens living in terr itories en joyed “the privileges and immunities of a citizen of the United States” including “[t]he righ t . . . of pea cable [sic] a ss embly an d of petition,” and “to keep an d bea r a rm s.”355 In debate on the same bill, Mississippi Repu blican J am es Alcorn made it clear t ha t t he m ilitia consisted of all cit izen s, n ot ju st a select group: “The citizens of the United States, the posse comitatus, or the m ilitia if you plea se, a nd th e colored man composes part of these.”356
7. S um m ary of Con gres sional policy The Congressm en of th is per iod were ha rdly interested in strengthening the state militias (which had just been defeated in th e War of Rebellion, as they called it ), or in rein forcing states’ rights.357 The Congressional concern a bout th e constitu -
353. Id. at 475. 354. CONG. GLOBE, 42d Con g., 2 d S es s. a pp . a t 2 6 (18 72). 355. CONG. REC., 43d Con g., 1 st Se ss . a pp . a t 2 41-4 2 (18 74). 356. Id. at 302; see also Let ter s fr om th e Fed eral Far m er XVIII, in 2 THE COMPLETE ANTI-FEDE RALIST 341 (1981) (“A militia, wh en pr operl y for me d, a re in fact the people t hem selves . . . and include . . . a ll m en cap ab le of b ea ri ng ar ms . . . . ”); George Ma son , Vir gin ia Ra ti fyin g Con ven ti on of J une 16, 1788, reprinted in ORIGIN, supra note 37, at 430 (“Who ar e th e Militia ? They consist now of the whole people . . . . ”). 357. The only kn own nin etee nt h cent ur y inv ocation of the Second Amendment as a mea ningful stat e’s right occurred during a floor speech by Delaware Democrat Willard Saulsbur y, as he indicated th at violation of the Second Amendment w ould mean the disar mam ent of the ent ire population. Objecting to the proposed S.R. 32, to disband most Southern stat es’ militias, Saulsbury said: D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1459 tional righ t to keep and bea r arms w as p la in ly a concer n abou t the self-defense rights of individual citizens, especially freedmen.358 It would be ludicrous to att empt t o explain th e record of the Reconstruction Congresses as anything but strong support for a personal right to arms for self-defense. Thus, the anti-individual authors simply avoid any men tion of th e subject. Jonathan Bingham and Jacob Howard, like St. George Tucker, are carefully ignored.
B. Cruikshank Under the authority of the new civil rights laws, federal prosecutors brought many cases against white defendants who, alon e or in groups, had violated the civil rights of freedmen. These defendant s wer e frequent ly char ged wit h violatin g th e Second Amendment right s of freedmen by taking their firearms.359
The pr oposi tion he re . . . is an ap plica tion to Congress to do th at which Con gress has no right to do under the second amendment of th e Constitution. . . . We hear a great dea l ab out th e opp re ssi ons of th e n egr oes d own Sou th , and a complaint here comes from somebody connected with the Fr eedmen’s Bureau. . . . Yet, sir, no petitions are here to prot ect th e whit e people against th e ou tr ag es com mi tt ed by t he ne gr o pop ul at ion ; bu t i f a few letters are writ ten to me mber s her e th at oppres sion h as be en pr acticed a gainst negroes, then t he whole white population of a State [is] to be disarmed. CONG. GLOBE, 39t h C ong., 1 st Se ss . 91 4-15 (186 6). 358. Akhil Reed Amar su ggests tha t th e Fourt eenth Amendmen t accomplished a re-orientation of the Second Amendment. Whereas the Second Amendment had origina lly dealt ma inly with t he r ight of people to own gun s to r esist an oppres sive federal government through participation in the militia, the Second Amendment extolled by the framers of the Fourteenth Amendment dealt with personal security, and th e me an s to r esist crim ina l at ta ck effectively. See generally Amar, Th e Bil l of Rights and Fourteenth Amendment, supra note 1. Amar’s point is useful when taken as an observat ion about two eras’ different views of the intended pr im ar y pu rp ose of the Second Amendment. We should keep in mind, however, tha t th e Fourt eenth Amendment mer ely emp ha sized a n exist ing thr ead of th e Second Am endm ent ; it did not weave in anything new. The F ram ers of the Constitut ion and th e Secon d Amendment saw comm un ity defen se aga inst a crim ina l governm ent as simply one end of a continuu m th at began with persona l defense against a lone criminal; the th eme was self-defense, and the question of how man y crim ina ls wer e in volved (one , or a standing ar my) wa s me rely a det ail. S ee Kat es, S elf-Pr otecti on, supra note 1, at 92-93. Thus, the beginnin g of St. George Tucker’s exposition of the Second Amendment reminded th e rea der t ha t “[t]he righ t of self defence is t he firs t law of nat ur e.” See 1 BLACKSTONE, supra not e 14 , ap p. a t 3 00; see supra text a ccompanying note 61. 359. See Kerm it L. H all, Po li tic al Po w er an d Co n st it u tio n al L eg it im ac y: T h e South Carolina Ku Klu x Klan T rials, 1871-1872, 33 EMORY L.J . 921 (198 4). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Eventua lly, the federal prosecution s m ade their wa y t o the Supreme Court in United States v. Cruikshank.360 Cruikshank involved th e afterm at h of the 1872 elections in Lou isiana . Followin g the elections, two separate gover nmen ts—on e Unionist and one racist—declared themselves the winner and the officia l gove rnmen t of the state. I n the t own of Colfa x, armed bla cks occu pied the courthouse and the surrounding dist rict to asser t the legit im acy of their side’s control of the loca l governmen t. Atrocit ies had been committed on both sides; a rioting band of white farmers attacked the courthouse, burned it to the ground, and murdered blacks who tried to escape the flames. Klansman William Cruikshank and other leaders of the r iot were t ried in feder al district court for violatin g federal civil rights laws. By t he t er ms of t he Enforcement Acts, 361 the trial cour t foun d Cruik shan k gu ilty of conspiring to deprive the blacks of their Constit ut ional righ ts, including the right to assem ble peaceably and the right to bear arms.362 The Cruikshank case forced the United States Supreme Cou rt to squarely address the issue of whether the enumerated provisions of the Bill of Rights were made enforceable against the states by the Fourteenth Amendment and the Con gressional laws en acted pur suan t t o the Amen dment. The issue had arisen a few yea rs befor e, in a feder al prosecution of South Carolina Klansmen for conspiring to deprive bla cks of th eir arms and to destroy the black militias. There, the lower federal courts had held that th e Fourt eenth Amendment did not incorporate th e Bill of Rights. The Suprem e Court evaded review on procedural grounds.363
360. 92 U. S. 5 42 (1 876 ). 361. See 16 S ta t. 1 40 § 6 (1 870); see als o 18 U .S. C. §§ 2 41-2 42 (1 994 ). That if t wo or more persons sh all band or conspire togeth er, or go in disguise upon the public highway, or upon the prem ise s of a not he r . . . or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of an y r igh t or pr ivile ge gra nt ed or s ecu red to him by the Con st itu tion or laws of th e Un ited Sta tes . . . . Id. 362. See GEORGE C. RABLE, BUT THERE WAS NO PEACE: THE ROLE OF VIOLENCE IN THE POLITICS OF RECONSTRUCTION 125-29 (198 4). 363. See Unit ed Sta tes v. Avery, 80 U.S. (13 Wa ll.) 2 51 (1871); Unite d Sta tes v. Crosby, 25 F. Cas. 701, 701-05 (D.S.C. 1871) (No. 14,893). The cases ar e discussed in Ha ll, supra note 359, at 921. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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In Cruikshank, the Su prem e Court held the Enforcement Acts unconstitutional. The Fourteenth Amendment, the Cou rt acknowledged, did give Congress the power to prevent in ter fer en ce with r ight s gran ted by the Constitution. However, the Court held that the right to assemble and the right to arms were not rights granted or created by the Constitution. The first part of the opinion explained: The right of the people pea cea bly to ass em ble for la wfu l
purposes existed long before th e a dop tion of th e Const itu tion of the United Sta tes. In fact , it is , an d a lwa ys h as bee n, one of the attributes of citizenship under a free government. It “derives its s ou rce,” to u se th e la n gu age of Ch ief J u stice Marshall, in Gibbon s v. Ogden, 9 Whea t. 2 11, “from those laws whose authority is a ckn owle dged by civilized m an th rou gh out the world.” It is found wher eve r civ iliza tion exis ts . It wa s n ot, therefore, a right gra nte d t o th e p eop le by the Const itu tion . The governmen t of the United Sta tes when esta blished foun d it in existence, with the obligation on the part of the States to afford it protection.364 The Court further explained that the right to arms is a fundamental human right: The rig ht . . . of “bearing arms for a lawful purpose” . . . is n ot a
right granted by the Constitu tion. Neither is it in any m ann er dependent upon that instrument for its exis te nce. Th e se cond amendment declares that it sh all n ot be infr inged; bu t t his . . . means no more than that it shall not be infringed by Congress . . . lea vin g the p eop le t o look for th eir pr ote ction against an y viola tion by th eir fellow-citizen s of the righ ts it recognizes, to what is called . . . the “powers which relate to m er ely m unicipa l legisla tion . . . .”365
364. Cruikshank, 92 U .S. a t 5 51 (em ph as is a dde d). A su bt ext of th e opinion was that th e Reconst ru ction govern men t of Louisiana ha d encour aged bla cks to a ssem ble armed, knowing tha t distur bances would result; hen ce, it was the sta te governmen t’s responsibility (not th e Sup re me Cou rt ’s) to pr ote ct blacks from disarmament and in te rfe re nce with th eir right t o assemble. 365. Id. at 553 (qu otin g Ne w York v. Mil n, 3 6 U.S. (11 Pe t.) 1 25, 1 39 (18 37)); cf. Bliss v. Com mo nw ea lt h, 12 K y. (2 Lit t. ) 90, 92 (1 822 ) (“The right [to arms in the Kentucky Constitution] existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in noth in g el se bu t i n t he lib er ty of th e cit ize ns to b ea r a rm s.”). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Cruikshank thus asserted that the Second Amendment protected, but did not create, th e individual’s right to bear arms; the right instead derives from nat ural law. The Court’s position that people must look to local governments “for th eir protection against any violation by t heir fellow-cit izens of t he rights” that the Second Amen dment recognizes is comprehensible only under th e ind ividual r ight s view. If individua ls have a right to own a gun, then individuals can ask local governments to protect them against “fellow-citizens” who attempt to disarm them. In contra st, if the Second Amendment righ t belon gs to the state governments as protection against federal in ter fer en ce, th en mere “fellow-citizens” could never infringe that right by disarming mere individuals. The Cruikshank decision complet ed t he work begun by The Slaughter-House Cases, ruining the Fourteenth Amendment as a check on most stat e abuses of the Bill of Rights until the 1920s.366 Although no longer good law, t he case clear ly ap-
366. Robert Palmer writes that “United States v. Cruikshank accomplished the nu llifica tion of the fourteenth amendment that scholars traditionally attribute to Slau ghter-House.” Robert C. Pa lmer , Th e Par am eters of Con sti tu tion al R econstru ction : Slaughter-House, Cruikshank, an d t he F our teen th Am end m ent , 1984 U. ILL. L. REV. 739, 762. Palmer argues that Justice Waite’s opinion in Cruikshank misread Slau ghter-House, and wrongly assumed that state and federal privileges and immu nities wer e abs olutely dist inct. See id. Cruikshank was over ru led by imp lication by DeJon ge v. Oregon , 299 U.S. 353 (193 7), wh ich he ld, d ir ect ly contrary to Cruikshank, that th e righ t t o assem ble peacea bly was gu ara nteed by the Four teent h Amendm ent. Because Cruikshank had applied identical reasoning to find tha t th e First Amendmen t (assembly) and Second Amendment (arms) were not protected by th e Fou rt een th Amen dme nt , Cruikshank may not be good law tod ay w ith re gar d t o th e F ourte en th Ame nd me nt ’s pr ote ction of the right to bear arm s. One oth er Recon st ru ction Su pr em e Cou rt cas e t ouch ed on th e r igh t t o ar ms. Cum m ings v. Missouri was a n 1866 ca se growin g out of th e 18 65 Mi ssou ri Constitution, which imposed nu mer ous civil disab ilities—pr ohibition s on en gaging in var ious professions, holding certain types of property, and holding government office—on persons wh o had support ed th e Confeder at e caus e. Cum min gs v. Missour i, 71 U.S. 277 (1866). The State of Missouri defended the disabilities on the grounds that depr ivation s of civil rights were not punishm ent. The Supr eme Court disagreed. Ju stice Stephen F ield’s majority opinion observed that: In Fr an ce, de pr iva tion or sus pen sion of civil righ ts, or of some of th em, a nd among these is th e right of voting, of eligibility to office, of taking p ar t in family councils, of being gua rdia n or t ru stee , of bearin g arms, an d of teaching or b ein g em ploy ed i n a sch ool or s eminary of learning, are punishments prescribed by her code. Id. at 321. The Court th en exp laine d th at a dep rivation of civil rights in th e United D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Stat es must also be considered a form of punishment: The th eory upon wh ich our inst itu tions rest is, t ha t a ll men ha ve cert ain ina liena ble rights—th at a mong these a re life, liberty, and th e pu rs uit of happiness; and tha t in the pursu it of happiness all avocations, all honors, all pos it ion s, a re al ike open t o eve ry one , a nd th at in pr ote cti on of these rights al l a re equ al befo re th e la w. An d d ep ri va ti on or su sp en sion of th ese rights for past conduct is pun ishm ent , and can in no otherwise be defined. Id. at 321-22. The Cou rt st ru ck down the relevant provisions of the Missouri Constitution as a bill of at ta ind er , an ex p ost fact o law , an d a viola tion of due process. (The Missouri deprivations did not prohibit the owner ship or carrying of arms in a ny way; instead the 186 5 Mi ss ouri Con st it ut ion affi rm ed th e r igh t of the people of Missouri “to bear arms in defence of themselves and of the lawful authority of the State cannot be question ed.” MO. CONST. ar t. I, § 8 (1865). Thu s, th ere was no place for the Supreme Cou rt to consider the Second Ame ndm ent as a n objection t o the Missour i civil rights depr ivat ions.) The Cou rt em ph as ized th at th e ex-confed er at es cou ld be pu nis he d for pa rt icipa tion in th e r ebe llion according to l aw s w hi ch e xis te d a t t he ti me of th e re bell ion, but th at a dditional punishment s could be not added after the fact. Id. at 327-29. The Cum min gs principles rem ain valid law. F or example, in 1965, the Supreme Cou rt relied on Cum m ings to ove rt ur n a law wh ich b ar re d ex -Commu nis ts from becoming officers of labor u nion s. United St ates v. Brown, 381 U.S. 437, 447-48 (1965) (holding th at a dep rivation of civil right s is pu nish men t; th e Bill of Att ainder clause is to b e br oad ly con st ru ed ). Cum m ings ra ises in ter estin g issue s abou t m odern gun contr ol laws. The Supreme Cou rt in Cum m ings labeled “bearing arms” a civil right, and insisted tha t a citizen may be d epr ived of civil r igh ts onl y a s t he re su lt of a convicti on for a crime when the penalty for the crime was establish ed befo re , r at he r t ha n a fte r, th e com mi ss ion of th e crime. In the modern Un ited States, in contrast, it is common for federal and state laws to impose additional punish ment s for a crime, long after the defendant ha s pled guilty an d ser ved his pun ishm ent . For exa mple, a pers on migh t h ave pled guilty t o federal tax evasion in 1954 and ser ved a prison term or paid a fine. The punishment for th e t ax cr im e, a s of 195 4, di d n ot include loss of the right to keep and bear arms. But in the Gu n Cont rol Act of 1968, the Congress banned th e possession of firearms by an yon e wit h a felon y con vict ion —eve n fe lon y con vict ion s in cur re d lon g be fore 1968. 18 U.S .C. § 92 2(g)(1). Th e ba n li ke wis e exte nd s r et roa ctiv ely t o per son s in var ious cat egories un re la te d t o cr im e, s uch as bei ng dis honora bly dis cha rg ed from the milita ry. Id. § 922(g)(6). Similarly, in 1994, Congress banned firearms possession by anyone with a misd em ea nor convi ction for dome st ic viole nce , no m at te r h ow lon g befor e 1994 t he conviction occur red . Id. § 922(g)(9). The courts have upheld these ret roact ive prohibitions on the groun ds th at th ey do not im pose an y ret roact ive punishment; no on e wil l be s en t t o prison unless they possess a firearm aft er the effective dat e of the law. S ee, e.g., United St ates v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994). Thus, the modern courts adopt the position of the Missouri Attorney General (that deprivation of civil rights is not punishment; only prison, executions, and fine s a re pu nis hm en t), a nd re ject th e pos iti on of the United States Supreme Court. A per son dis hon ora bly d isch ar ged from th e sta nd in g a rm y be cau se of h is object ions to the Vietnam War is deprived of the constitutional protections which were accorded even t o person s who h ad bor ne a rm s in r ebellion a gainst t he feder al arm y in the n ineteent h century. It is not always t rue t hat modern cour ts pr otect civil rights and enforce the Constitution with more zeal than did their nineteenth century predecessors. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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proaches the Second Amendment from an “individual right” perspective. C. Presser Labor and anti-labor violence, both in ur ban centers an d in rural coal mines, became quit e frequ ent in the latt er part of the nineteenth century.367 The major nineteen th century Suprem e Cou rt interpretation of the Second Amendment involved a gr oup of German immigrants—Lehr und Wehr Verein368—marching in military exer cise in pu blic. Th e ca se grew out of an Illinois ar ms control measure ena cted in response to the labor uprisings of the late 1870s. Sta te m ilitias and the federal army had brutally suppressed peaceful strikes. When workers began forming self-defense organizations such as Lehr und Wehr Verein, the state government outlawed private milit ias.369 A mem ber of Lehr und Wehr Verein took the case to the United States Supreme Court, and lost. First, the unanimous Cou rt stated that the Illinois la ws “do not in frin ge t he r igh t of the people t o keep an d bea r a rm s.”370 Thus, the right to own and carry gu ns d oes not include th e righ t t o carry guns in public as part of a la rge group on military parade.371 Further, as
367. S ee, e.g., J EREMY BRECHER, STRIKE! (199 7); ROBERT W. BRUCE, 1877: YEAR OF VIOLENCE (1989 ); PRISCILLA LONG, WHERE THE SUN NEVER SHINES: A HISTORY OF AMERICA’S BLOO DY COAL INDUSTRY (1989 ); Ph ilip Ta ft & Philip Ross, Am erican L abor Vi olen ce: Its Cau ses, C ha ract er, an d O ut com e, in VIOLENCE IN AMERICA: HISTO RICAL AND COMPARATIVE PERSPECTIVE S 281-395 (Hugh Davis Gra ham & Ted Robert Gur r eds., 196 9). Another historian writes: One of the major themes in American urban history since the 1850s has been the stru ggle of municipal authorities and their business-class allies to gain a monopoly on the use of viole nce . Th e pr oblem wa s n ot t ha t t he ele cte d officials lacked a monopoly on the use of legally authorized violence; rather, th ey s tr uggled to convince tur bulent port ions of the populace that all other violence was illegitimate. Michael Feldberg, The Crowd in Philadelphia History: A Comparative Perspective, in RIOT, ROUT, AND TUMULT: READINGS IN AMERICAN SOCIAL AND POLITICAL VIOLENCE 142 (Roger La ne & J ohn J . Tu rn er , J r. , ed s., 197 8). 368. This title tra nslates to “teaching and defen se u nion .” CRAMER, supra note 1, at 130. 369. See PAUL AVRICH, THE HAYMARKET TRAGEDY 45-4 6 (19 84). 370. Presser v. I llin ois, 11 6 U .S. 252 , 26 5 (18 86). 371. The Court’s opinion was consiste nt wit h e st ab lish ed com mon law lim its on the right t o arms wh ich prohibited large, terr ifying assemblie s of a rmed m en. S ee 1 H AWKINS, supra note 96, at ch. 60. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Cruikshank had noted, the Second Amendm ent, under the Slaughter-House rationale, “is a limitation only upon the power of Congress and the National government, and not upon that of th e St at es.”372 In dictum, the Court stated that even though the Second Amendment did not limit state gun control, there was still a constitutional limit on state controls. The states could not disarm the public so as to deprive th e federal government of its milit ia: It is un dou btedly tr ue th at all citizens capa ble of bearing a rm s
constitute the reserved military force or re se rve m ilit ia of th e United States . . . a n d, in vie w of t h is p rer oga tive of th e general gover nm en t . . . th e St at es ca nn ot, even laying the constitutional provision in question [the Second Amendment] out of view, p roh ibit t he peop le from keepin g and bearing arm s, so a s t o deprive th e U n ited St ate s of t h eir ri gh tfu l resource for maintaining the pu blic security, and disable the peop le from pe rforming their duty to the general government. But, as already st at ed , we th ink it clea r t hat th e se ction s unde r con sid er ation do n ot h ave t his e ffect.373
The militia thus includes “all citizens capable of bearin g arms.”374 Anti-individu alist authors who discuss Cruikshank and Presser ten d to emph asize th e nonapplicability of the Secon d Amendment to the sta tes, while gliding over the cases’ clear understanding of an individual right to arms. Most Standard Model authors acknowledge Cruikshank and Presser as green light s for state gun control. The Sta ndard Modelers a rgue, however, that Cruikshank and Presser should be r epudiated in light of modern Fourteenth Amendment doctrine,375 or that the two cases alr eady have been repudiat ed by dicta in three modern cases listing “the right to keep and bear arms” a s among th e “full scope of the liberty” protected against state infringement by the Fourteenth Amendment.376 Steph en
372. Pres ser, 116 U.S. at 265. 373. Id. at 265-66. 374. Id. at 265. 375. S ee, e.g., Levinson, supra note 1, at 652-53. 376. See Pla nn ed Pa ren th ood v. Casey, 505 U.S. 833, 848 (1992); Moore v. East Cleveland, 431 U.S . 494, 502 (1977 ) (plura lity opin ion); Poe v. U llman, 367 U.S. 497, 542-43 (196 1) (H ar la n, J ., d iss en ti ng ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Halbrook, one of the most important Standard Model authors, argues th at th e st at e gun control passages in Cruikshank and Presser are mere dicta; the h olding of Cruikshank was that the Second Amendment could not be infringed by nongovernment actors, an d the holdin g of Presser was that the Second Amendment was not infringed by a ban on armed parades.377
VI. COMMENTARY FROM THE LATE 19TH CENTU RY: COOLEY AND OTHERS Turning to the scholarly commentators of the late nineteenth centur y, Part VI of this Article examines, among other things, how Cruikshank and Presser were read by the legal community of the period in which they were decided.
A. Thom as Cooley By far th e leading const itu tional expositor of the post-Civil War America, “the nation’s elder statesman on matters of const itution al law,”378 wa s Mich iga n Su pr em e Court J ust ice Thomas Cooley. He wa s considered “the greatest authority on constitutional law in the world.”379 Cooley ser ved on the Michiga n Supreme Court from 1864 to 1885, was listed by Roscoe Pound as one of the ten greatest judges in America n history,380 and would have been appointed t o the Un ited States Supreme Court, but for Republican bosses who fear ed his independence.381 Cooley also served as the first Dean of the Law Department at th e Un iversity of Michigan, which eventually became the Michiga n Law School. He tau ght Const itu tional Law, among other su bjects, and wrote im por tant tr eat ises on ta xat ion382 and
377. See Ha lbrook, Personal Security, supra note 1, at 343-44. 378. ALAN R. J ONES, THE CONSTITUTIONAL CONSERVATISM OF THOMAS MCINTYRE COOLEY 1 (19 87). 379. B. TWISS, LAWYERS AND THE CONSTITUTION: HOW LAISS EZ FAIRE CAME TO THE SUPREME COURT 34 (194 2), quoted in Stephen A. Siegal, Historism in Late Nineteenth- Century Constitutional Thought, 1990 WIS. L. REV. 1431, 1485 n.302. 380. See ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW 30 n .2 (1 938 ). 381. See Pa ul D. Ca rr ingt on, Law as “The Common Thoughts of Men”: The Law- Teaching an d J ud gin g of T hom as M cIn ty re Cool ey, 49 STAN . L. REV. 495 , 49 6 (19 97). 382. See THOMAS COOLEY, A TREATISE ON THE LAW OF TAXATION, INCLUDING THE LAW OF LOCAL ASSESSME NTS (187 6). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1467 torts.383 Professor Cooley was a superb lecturer, and (in great contrast to Harvard’s Langdell) courteous to his students. In his classes, he always paid heed t o the social and cultur al context of the law.384 President Cleveland appoint ed Cooley the first head of the new Interstate Commerce Commission (ICC). Although Cooley was a Repu blican, Democrat Cleveland selected him because his reputation for impartiality would give the ICC the trust and respect of person s of all points of view.385 He is the only person men tioned in th is article to have a law school named after him. In short, Thomas Coole y wa s “the m ost in flu en tia l lega l a uthor of the late nineteenth and early twentieth centuries.”386
1. A Treatise on Constitutional Limitations “[T]he foundation of [Cooley’s] fame and his central contribu tion was his first major publication,”387 the 1868 volume A Treatise on Constitutional Limitations, which went through several editions over the following deca des. It became “a canonical text for jurists.”388 Two decades later , it “was still the most sch ola rly a nd certain ly t he m ost adm ir ed Amer ica n law book.”389 As a reviewer of a later edit ion exp la in ed, t he book was “cited in every argumen t and op in ion on the subjects w hich it treats, and n ot only is t he book a uthorit ative as a diges t of law, but its author’s opinions are regarded as almost conclusive.”390 A century later, Constitutional Limitations could accurately be described as “the m ost influential lawbook ever publish ed.”391 Th e fir st edit ion of Con stitutional Lim itat ion s stated:
383. See THO MAS COOLEY, A TREATISE ON THE LAW OF TORTS OR THE WRONGS WHICH ARISE INDEPENDENT OF CONTRACT (1880). Th e t ort s t re at ise “was long considered the authoritative American treatment.” 4 DICTIONARY OF AME RICAN BIOGRAPHY 393 (A. John son & D. M alone eds ., 1930), quoted in Siega l, supra note 379, at 1486 n .309. 384. See Car rin gton , supra note 381, at 515-16. 385. See id. at 498. 386. P. PALUD AN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW AND EQUALITY IN THE CIVIL WAR ERA 252 (197 5), quoted in Siegal, supra note 379, at 1485 n.302. 387. Siegal, supra note 379, at 1487. 388. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 87 (1 960 ). 389. Carrington, supra note 381, at 496-97. 390. Book Note, 27 ALB. L.J . 300 (188 3). 391. BERNARD SCHWARTZ, THE LAW IN AMERICA 134 (197 4). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Righ t to bear Arm s Among the other defences to personal liberty should be men tioned the right of the people to keep and bear arms. A standing army is par ticular ly obnoxious in an y free government, and the jea lousy of one has at times been demonst rated so st ron gly in Engla nd a s a lm ost to le ad to t he belief th at a s ta ndin g a rm y r ecr uite d fr om among themselves was m ore dr ea de d a s a n inst ru m en t of op pr ession than a tyrannical king, or any foreign power. So impatient did the Eng lish people become of the very army which liberated them from the tyranny of James II., that they demanded its reduction, even before the liberation could be felt to be complete; and to this day, the British Parliament render a standing ar m y pr act ically im poss ible by only pa ssin g a mutiny bill from session to session. Th e altern ative to a standing army is “a well-regulated militia,” but this cannot exist unless the peop le are tr ained to bearing ar ms. How far it is in the power of th e legis lat ur e to regu lat e this righ t, we sh all not undertake to say, as happily there h as been little occasion to discuss that subject by the courts.1
1 In Bliss v. Com m onwealth, 2 Lit. 90, the statute “to prevent persons wearing concealed arms” was held unconstitutional, as infringing on the right of the people to bea r a rm s in de fen ce of th em selves an d of the State.392 But see Nunn v. State, 1 Kelly 243.393 As bea rin g u pon th e r igh t of se lf- defence, see Ely v. Thompson, 3 A.K. Marsh . 73,394 where it was h eld th at t h e s ta tu te su bje ctin g fr ee p er son s of color t o corporal pu nis hm en t for “lifting th eir hands in opposition” to a wh ite per son wa s h eld u ncon stitu tion al.395 After denouncing standing armies, Cooley informed the reader that “‘a well-regulated militia’ [requires th at ] the people are trained in the use of arms.”396 In the footnote, Cooley first
392. See supra note 152 and accompanying text. 393. See supra text accompan ying notes 246-54 (reviewing the Georgia case, Nunn v. State, holding that the Second Amendment guarantees individual right to open carr y, but not to concea led car ry). 394. 10 Ky. (3 A.K. Marsh .) 70 (1820) (holding a lso that free blacks have some constitutional ri gh ts , a s “pa rt ies to t he poli ti cal com pa ct”). 395. TH OMAS M. COOLEY, A TREATISE ON CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 350 (Little, Br own 197 2) (18 68). 396. Id. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1469 mentioned a Kentucky ca se using t he state con st it ution to strike down a ba n on concealed carry. Cooley next cited a Georgia case using the Second Amen dment to void a r estriction on carrying guns openly, while upholding a restrict ion on carrying concealed guns. The th ird case shows pla inly t ha t t o Cooley, the “Right to bear Arms” (as h e entit led this section ) was about individual self-defense.397 Elsewhere in th e text, Cooley offered advice about the “Formation of State Constitutions.”398 Among the elements which Cooley thought appropriate to include in every state constitution was a decla ra tion of righ ts for th e pr otect ion of in divid ua ls and
minorities. This declar at ion u su ally cont ain s the following cla ss es or pr ovision s: 1. Those declaratory of the general principles of re pu blica n governmen t [inclu ding a ban on peacetime standing ar m ies] . . . . 2. Those declaratory of the fundamental rights of the citizen; . . . [inclu din g free sp eech, fr eedom of re ligion , fre ed om from un reasonable searches and seizures, and] that every man ma y bear ar ms for the defence of himself and of the State.399
If Cooley could refle ct “ha pp ily” on h ow little gun control had been enacted in the United States, it is unsurprising that he urged new stat es to adopt Bills of Rights which specifically guar antee arms possession for personal defense.
2. The General Principles of Constitut ional Law In 1880, Cooley authored The General Principles of Constitutional Law, an abridged version of the Constitutional Limitations treatise. The book was “a popular college text an d
397. See id. Only one pre-Cooley treatise cited Ely. S ee DUER, supra note 165, at 37 n .1. Coole y’s se lect ion of a ca se up holdi ng ju st ifia ble se lf-defense by a bla ck man may h ave been a reflection of Cooley’s own anti-racism. His Michigan Law Sch ool was alwa ys open to people of all colors. See Car rin gton , supra note 381, at 516. On th e Mich iga n S up re me Cou rt , J us tice Cooley au th ore d a n op inion voiding racial segr egat ion in th e Det roit pub lic schools. S ee People v. Board of Educ., 18 Mich . 399 (186 9). 398. See COOLEY, supra note 395, at 35. 399. Id. at 35-36. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1470 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 student’s guide.”400 General Principles had a much longer exp osition of the r igh t to arms:
Section IV. — THE RIGHT TO KEEP AND BEAR ARMS.
The Con stitu tion . — By the second amendment to the Con st itu tion it is d eclar ed t ha t “a w ell-re gu lat ed m ilitia bein g necessary to t he se cur ity of a free St at e, th e right of th e pe ople to k eep a nd b ea r a rm s shall not b e in frin ged .” The amendm ent, like most other provisions in the Constitution, has a h ist ory . It wa s a dop te d w ith som e m odifica tion and enla rgem ent from the E nglish Bill of Rights of 168 8, wh er e it st ood a s a pr ote st ag ainst ar bit ra ry act ion of the overturned dynasty in disarm ing the people, and as a pledge of the new rulers th at th is tyran nica l act ion s hou ld cease.401 Th e r igh t d ecla re d w as m ea nt t o be a st ron g m ora l check against the usurpation and arbitrary power of rulers, and as a necessa ry and efficient mean s of regainin g rights when temp orarily overturned by usu rpat ion. [Cooley then placed a foot note to St. George Tucker’s extravagant tribute to the individual right to arm s.402] The Righ t is General. — It may be supposed from the phra seology of this provision that the right to keep and bear arms was only guara nteed to the militia; but this would be an inte rp re ta tion not warr ant ed by the inten t. The militia, as has been elsewhere explained, consists of those persons who, under th e la w, a re liable to t he p er form an ce of milita ry du ty, and are officer ed an d e nrolled for s er vice w hen called upon . But the law m ay make provision for th e en rolm en t of all wh o are fit t o pe rfor m m ilitar y duty, or of a sm all num ber only, or it m ay wh olly omit t o mak e a ny pr ovision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be de fea te d a ltog et her by t he a ction or neglect
400. Siegal, supra note 379, at 1486 n.307. 401. These la st tw o se nt en ces were qu ote d (wit h p rope r ci ta ti on) as an exp lan at ion of the Second Amendment in C. ELLIS STEVENS, SOURCES OF THE CONSTITUTION OF THE UNITED STATES, CONSIDERED IN RELATION TO COLON IAL AND ENGLISH HISTORY 224 (New York, MacMillan 2d ed. 1894). The right to arms is a “right involving the latent power of resistance to tyrannical government,” Stevens explained. Id. at 223. “From prehistoric days the right to bear ar ms s eems to ha ve been the badge of a Teutonic freeman, and closely associated with his political privileges. Su ch a rm ed fr eem en ma de u p t he mi lit ar y host of t he t ribe.” Id. Stevens tra ced the right t o arms an d the corresponding militia duty from Saxon times to the middle ages , an d fina lly to th e 1689 E nglish Bill of Rights . See id. 402. See THO MAS M. COOLEY, THE GENER AL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 281 -82 (B ost on, Li tt le, Br own 2d ed . 18 91). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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to act of the government it was meant to hold in che ck. T he meaning of the provision undoubtedly is, that the people, from whom the m ilitia must be ta ken, sha ll have the right to keep and bea r a rm s, a nd t hey n eed n o pe rm ission or regulation of law for the purpose. But this enables the governm ent to ha ve a we ll-r egulated m ilitia ; for to be ar ar m s im plies som ethin g more than th e m er e keep ing; it im plies th e lea rn ing to h an dle and use them in a way that m akes those who keep them ready for th eir efficient us e; in ot he r w ord s, it im plies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order. Standing Arm y. — A further purpose of this amendmen t is, to pre clud e a ny ne cessit y or r ea son ab le excu se for keepin g up a st andin g a rm y. A s ta ndin g a rm y is condemned by the tr ad ition s a nd s en tim en ts of th e p eop le, a s be ing a s d an ger ous to the liberties of the people as the general preparation of the peop le for th e de fence of th eir institutions with arms is preservative of them. What Arm s m ay be kept. — The arms intended by the Con st itu tion are such as are su ita ble for t he ge ner al de fen ce of the com m unity ag ainst inva sion or oppression, and the secret carrying of those suit ed merely to deadly individual encounters may be prohibited.403
403. Id. at 282-83. At the end of the section, Cooley cited Andrew s v. State, 50 Tenn (3 Heisk.) 165 (1872), for the proposit ion th at th e impr oper car ryin g of small weapons not s ui ta ble for de fense aga inst tyr an ny could be pr ohibit ed. COOLEY, supra note 402, at 283 n .1; see also 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 143 (Thomas M. Cooley ed., Chicago, Calla gha n 1884) (conta ining Cooley’s notes on Blackstone’s exposition of the right to arms: “In the Un ited States th is right is preserved by express constitutional pr ovisions. But it extends no further than to keep and bea r th ose arms wh ich are suited and proper for the general defense of the community against invasion an d oppression.”). Lawrence Cress quotes th is pa ss ag e fr om Coole y t o su pp ort C re ss ’s posi ti on th at th e S econ d Am endment guarant ees only a righ t of sta te gover nm ent s. S ee Cress, supra note 2, at 42. In light of Cooley’s statements in Constitutional Limitations (which Cress must have k nown about since he cites Constitutional Limitation s, ev en th ough he doe s n ot q uote it ), Cress’s attempt to use Cooley to su pport an an ti-individu al Second Amendment is tota lly implausible. Also implau sible is the claim of Robert J. Sp it zer , a ut hor of The Politics of Gun Con trol , tha t th e “classic analyses of the nineteenth century, like those of Joseph Story an d Thom as Cooley” suppor t Spit zer’s theor y that no individual has a right to own a gun. SPITZER, supra not e 2, a t 4 2-43. In th e en dn ote for t he assertion, Spitzer cites Story and Cooley, but does not quote any of their words. Instead, Spitzer writes that “Cooley di d n ot in clud e discu ssi on of t he im por ta nt Presser case until the subsequent (fourth) edition of his book, published in 1931, when he buttressed the standard int erpr eta tion foun d in t he wr itings of other cons titut ional sch olars .” Id. at 56 n.60 (parenth etical in original). Actually, Judge Cooley had been dead for 33 years when th e fourt h ed ition was pub lishe d. See Andre w C. Mclauch lin, Thom as McIntyre D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Cooley repeated the above language verba tim in th e 1898 edit ion of General Principles.404 Cooley’s discussion in “The Right is Genera l” is perhaps the most concise explica tion of how the in divid ual r igh t to arms supports th e Second Amendmen t’s goal of “a well-regulated milit ia.” Th er e is no ambiguit y t o Cooley’s view of the Secon d Amendment as an individua l right, and th ere is no quest ioning Cooley’s position as, by far, t he lea ding constit ution al commen tator of pos t-Civil War Amer ica . Cooley also provided the succinct St an dard Model reply to the argument of David Williams that th e righ t t o bear ar ms is contingent on the government maintaining the militia: “if the righ t were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check .”405 If govern-ment neglect could destroy the Second Amendment, then th e Amen dment would h ar dly be a check on government abuse. Heniga n add resses Cooley, bu t sidest eps t he Secon d Amendment issu e. He first notes that Levin son qu otes from Cooley’s th ird edition. Heniga n then points out that the fourth edit ion (published year s after Cooley’s death ) contain s a cit ation to Presser, not contained in the third edition, which stands for the principle that the Second Amendment limits only the federa l government, and not the states.406 This is true enough, but Heniga n does not sh ow an y flaws in Cooley’s int erpret at ion of the Second Amendment, nor does he show that Cooley’s view was r ejected by a ny contem por ary. Heniga n fails to acknowledge another sta tem ent by Cooley, which directly
Cooley , in DICT. AM. BIO., supra note 90. 404. See THO MAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 297 -99 (B ost on, Li tt le, Br own 3d ed . 18 98). 405. COOLEY, supra note 395, at 270; see generally William s, Civic Republicanism , supra note 8. 406. See Hen igan , Arm s, Anarchy, supra note 2, at 122. Hen igan credit s him self with scor in g a poin t on Lev in son , since th e fou rt h e dit ion un der cuts Le vinson’s point that the Second Amendment may invalidate state antigun laws . See id. Bu t L evin son was not re lyin g on C ooley’s th ird ed iti on in re gar d t o st at e gu n la ws; L evin son elsewhere cited and ack nowle dge d t he au th orit y of Cruikshank and Pres ser. Levinson’s point about state gun laws turned on his argument that twentieth-centu ry a na lysis about the Four teenth Amendment h as render ed Cruikshank and Pres ser obsolete . See Levinson, supra note 1, at 652-53. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1473 addresses Henigan’s concern that a constitution cannot contemplate the overthrow of the government created by th e constitution, should the government become tyrannical: The right of the people to bear arms in their own defence,
and to form and drill military organ iza tion s in de fen ce of t h e State, m ay not b e ve ry im por ta nt in th is cou ntry, but it is sign ifican t a s h aving been reserved by the peop le a s a poss ible and necessary resort for the p rotection of self-government against usurpation, and against any attempt on the part of those who may for the time be in poss ess ion of St at e a ut hor ity or resources to set aside t he const itu tion an d su bst itu te th eir own ru le for th at of the people. Sh ould th e contingency ever ar ise w he n it wou ld be ne cessa ry for th e pe ople to mak e use of the arms in their hands for the protection of constitutional liberty, the proceeding, so far from being revolutionary, would be in st rict accord with popular r ight a nd duty.407
In analyzing Cooley, Hen iga n wa s a ttem pt in g t o refu te Sanford Levin son ’s The Embarrassing Second Amendment point by point (wh ile accusing Levin son of select ive qu otation).408 It seems likely, t hen, t ha t Heniga n was awar e of Cooley’s statement—since Levinson had quoted t he statement in full in his own article.409 Thomas Cooley wa s u nqu estion ably an adh er en t to the Standard Model, and believer in what Henigan derides as the insurrectionary view of the Second Amendment. Of course, Cooley, lik e ever y other comm en tator of th e nineteenth century, saw the use of arms to rest ore the Constitution and to remove a government that was destroying the Constitution as a method of upholding th e law, not as “insu rr ection.” If, as Heniga n’s
407. Thomas M. Cooley, The Ab neg at ion of S elf-G over nm ent , PRINCETON REV., J ul y-De c. 1883 , at 209, 213-1 4; see also Levin son, supra note 1, at 649 n. 64 (q uoting Cooley’s us e of t hi s t ext in th e t hi rd ed it ion of GEN ERAL PRINCIPLES OF CONS TITU TION AL LAW). In the next paragraph, Cooley wrote that a person wh o refuses to heed an unconstit ut ional la w “need for th e pur pose no ju dicial decision, n o official assista nce; he simply obeys the constitution, which is the law made by t he sovereign, and is t he re fore par am ount , inst ead of th e law a tt empted t o be ma de by th e subordinat e, wh ich m us t n eces sa rily be infe rior, and if conflicting, in opera tive.” Cooley, supra note 404, at 214. The concluding paragraph urged Americans to exceed the minim al dut ies of good citizenship, which were “that they sh ould cast th eir ballots for su ita ble pe rs ons in elect ion, or th at th ey sh ould p erfor m ju ry du ty, or bear arms when sum mon ed t o the defen ce of the S ta te.” Id. at 226. 408. See Hen igan , Arms, Anarchy, supra note 2, at 119-20. 409. See Levin son, supra note 1, at 649 n.64. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1474 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 gr oup claims, the Stan dard Model of the Second Amen dment is “a fraud,” then was Justice Cooley a participant in that “fraud”? Or a vict im ? Or is it perhaps inappropriate to describe as a “fraud” th e view held by the lea ding comment at or of the lat e nineteenth century—a view which, we shall see below, was held by every other scholar in th e period who discussed the issue?
B. The Lesser Com m enta tors Many other scholar s wrote const itu tional t rea tises in th e postwar year s, alth ough none was as influentia l as Cooley’s. All of these schola rs, lik e a ll of t he com men tators before them, tr eated the Second Amen dment a s an in dividu al r ight .
1. Joel Tiffany Antislavery attorney Joel Tiffany rema ined active after the Civil Wa r. H is 1867 book A Treatise on Government and Constitutional Law410 stated: The second amen dmen t of the constitution provides that the
right of the people to keep an d bear arm s shall not be infringed, beca use a w ell-r egu late d m ilitia is n eces sa ry to t he security of a free state. The m ilitia ar e t he cit izen sold ier s, a s distinguished from those who are trained to arms as a pr ofess ion, an d w ho cons tit ute th e elem en ts of a standing army. To be an efficient militiaman t he right t o keep and bea r arms is e ssen tia l. Th is p rovision had it s sou rce in tha t jealousy of power in the hands of the central governmen t, so manifest in the people, at the time the constitution was framed and adopted. This right in the people to keep and bear a rms, alth ough secu re d by th is pr ovision of the cons tit ution, is h eld in subjection to the public safety and welfare. Whenever for any cause, the public safety shall require th e su bst itu tion of martial for civil administration, then the maxim, salus resp ubli ca suprema lex,411 ap plies ; an d t his constitu tional right may be temporarily suspended. But while civil authority bears sway, this p rov ision of th e con st itu tion is t he su pr em e la w on that subject. Of the same character is the third amendment. No sold ier sh all, in time of peace, be quartered in any house,
410. J OEL TIFFANY, A TREATISE ON GOVERNMENT AND CONSTITUTIONAL LAW—BEING AN INQUIRY INTO THE SOURCE AND LIMITATIONS OF GOVERNMENTAL AUTHORITY ACCORDING TO THE AMERICAN THEORY (186 7). 411. The good of the republic is the su prem e law. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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without the consent of the owner, nor in time of war, but in the manner prescribed by law.412 Tiffany’s prewar antislavery writings had used the
individual right in th e Second Amendment as an argument against slavery.413 After the war, he construed the Second Amendment in pari m ateria with the Third Amendment, which no one414 disput es is an individual r ight .415
2. Tim othy Farrar Antislavery at torney Tim othy Farr ar ha d been th e law partner of Daniel Webster,416 and also part of a group of trustees of Dartmouth college who modernized the curriculum.417 By the time he wr ote his 1867 Manual of the Con stitution of the Un ited S ta tes,418 he h ad r isen to the ben ch. Farrar wa s a respe cted figur e, and his view s wer e wid ely
known. An Ohio congressman, J udge William Lawrence, cited Farrar’s 1867 treatise as authority to defend the constit ut iona lity of the 1866 C ivil Righ ts Act. H istoria ns have praised Fa rr ar ’s abilitie s a nd not ed h is in fluence on national leaders du rin g th e Civil Wa r a nd Recon stru ction as well a s his role “help[ing] to define clearly public attitudes on the nature an d p urp ose of th e Const itu tion .”419
412. TIFFANY, supra note 410, at 394-95. 413. See supra note 309 and accompanying text. 414. Well, almost no one. Garr y Wills contends that t he Third Amen dment has no lega lly m ea ni ng ful cont ent . S ee Wills, supra note 5, at 72. But see Powe, supra note 1, a t 1 361 (re sp ondin g t o Wil ls on th e T hi rd Ame nd me nt ). 415. Tiffany’s br oad th eor y of ma rt ial law (allow ing su spe ns ion of t he Secon d or Third Amendment dur ing wa r), which was n o doubt in fluenced b y Lincoln’s aggress ive and ar gua bly un constit ut ional u se of mar tial law powers d ur ing the Civil Wa r, m ight rea sona bly be q ue st ione d. The Th ird Am en dm en t s pecificall y pr ovide s for circumstances of war, and the habeas corpus clause stat es tha t it ma y be suspended during ma rt ia l la w. T he pr ovis ion for su sp en sion of habeas corpus during martial law implies that other constitutional rights, for which there are no suspension provisions, may not be su spen ded dur ing m ar tia l law. 416. See Richa rd L . Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J . 57, 83-8 4 n .15 8 (19 93). 417. See Pa ul D. Ca rr ingt on, The Revolutionary Idea of University Legal Ed uca tion , 31 WM. & MARY L. REV. 527 , 56 2 (19 90). 418. TIMOTHY FARRAR , MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA (Bos ton , Li tt le, Br own 186 7). 419. Aynes, supra note 416, at 85 (a lt er at ion in origin al ) (cit at ion s om it te d). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Taking an exp ansive view of constitutional rights, similar to the one shared by Fourteenth Amendment sponsor Jonathan Bingham,420 Farrar wrote: The St at es a re recognize d a s govern m en ts, an d, whe n t he ir
own const itu tion s pe rm it, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to th em. The right of every person to “life, liberty, and property,” “to keep and bear arms,” to the “writ of habeas corpus,” to “trial by ju ry,” and divers others, are recognized by, and held un der, the Con stitu tion of the United St ates, an d cann ot be infringed by in divid u als or St ate s, or even by th e gove rn m en t its elf. 421 In th e cha pter on “Sta te Disa bilities,” Farrar first listed the provisions on the main text of the Constitution forbidding acts which in frin ge civil liber ty (such as t he prohibition on Bills of Attainder).422 He then observed: Many su bjects a re sim ilar ly re strict ed in th e cons tit utional
amendments of wh ich th e followin g a re e xa m ples : Th e fr ee exe rcis e of r eligion; . . . the right of the people to assemble and pe tit ion the government; the right of the people to keep and bear arms; the right of the people to be secure in their per sons, houses, papers and effects . . . . [These] acknowledged constitutional rights of the pe ople must be protected by the governmen t, not only against th eir own wrongdoing, but against any other agency in the land.423
He argued that the federal government has no right “to put a citizen to the rack” nor “to permit a village magistrate to do the same thing, under the pretended authority of a State law. And so of every oth er prohibit ion in th e cat alogue.”424 Thus, Farrar (lik e Lysander Sp ooner bu t unlik e J onathan Bingh am) believed t ha t t he Bill of Rights, includin g th e enumerated right of a person to keep and bear arms, was enforceable against the states even without the Fourteenth
420. See id. at 83. 421. FARRAR , supra note 418, at 145. 422. See id. at 512-13. 423. Id. at 513-14. 424. Id. at 514. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Amendment.425 What is relevant for our purposes is not whether th is theory of the direct app lica tion of the Bill of Right s to the states was correct, but that the right to arms was treated as one of the important individual rights guaranteed by the Constitution. In another chapter, Farrar argued that many constitutional provisions forbid the governm ent to per form a cts wh ich it has no pos it ive power to perform anyway.426 Pointing to the constitutional prohibition against the gr antin g of tit les of nobilit y, Farrar noted that eve n wit hout the prohibition , Congress had no power to confer honorable titles.427 Likewise, the Fir st Amen dm en t pr ohibits Congr essional es tablish men t of religion and Congressional interference with free exercise of religion, peaceable assembly, or the right to petition. But what specific pow er m en tion ed in an y par t of t he Const itu tion ,
authorizes Congress to tou ch a ny on e of these su bject s, for an y purpose whatever? Why, then, restrict the power? So of “the right to keep an d bear arm s,” and divers other valuable comm on-la w righ ts . Ob viou sly th ey a re all ca refully guarded; because under th e general powers of the government to provide for t he com m on de fen ce, the ge ner al we lfar e, a nd t he blessin gs of liberty, and to do any thing necessary and proper for th ose pu rp oses, n othing could be said to be beyond the legitimate claims of an agent char ged with th ese duties.428 Farrar wa s w rong in gu essing wh ich particula r cla uses of the Constitution would be used to twist the limited powers given to Con gr ess into unlim it ed power . It wa s p er haps beyon d the contemplation of any mid-nineteenth century legal scholar that the federal powers to tax and to regulate interstate commer ce would be twisted int o power to regulat e on any subject whatsoever. Regardless of the textual source of the abuse of Con gr essional power, h owever, the First and Second
425. See Aynes, supra note 416, at 84. Farr ar recognized Ba rron v. Baltim ore, but ar gued t ha t J us tice J ohn son ’s opinion in Houston v. Moore had suggested that the Fifth Amen dme nt is ap plicable to th e st at es. See id.; Houston v. Moore, 18 U.S. (5 Whea t.) 1, 33-34 (1820) (sep ar at e opinion of John son, J .). 426. William Rawle and St. George Tucker made a similar point : even wit hou t the limitation created by the Second Amendment, the federal government had no power to enact a ntigun laws. See also supra notes 62-66, 96 a nd accompanying text. 427. See FARRAR , supra note 418, at 285. 428. Id. at 286. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Amendments were construed by F arrar as n ea rly identica l clauses, pr otect in g im por tant person al r igh ts fr om an overweening centr al governmen t.
3. George W. Paschal A “leading Texas lawyer”429 an d st au nch Unionist , George W. Paschal was arrested by t he Confeder ate gover nmen t of Texas during t he Civil Wa r. Alt hough he h ad s er ved on the Arkansas Supr eme Court,430 he spent many of his postwar years in Wa sh in gt on, D.C., wh er e h e h elp ed found t he Georget own University La w School, wrote books on va riou s legal topics,431 and was on e of t he “lea ding practit ion er s” before the Supreme Court.432 He authored The Constitution of the United States Defined and Carefully Annotated in 1868.433 The treatise was “an important addition to nationalist constitutionalism.”434 Repr esen ta tive Jonath an Bingh am “endorsed Pa scha l’s treat ise” on several occasions, even u rging the House of Representatives to purchase ten thousand copies.435 Represen tative (and future President) James A. Gar field cit ed Pasch al on the floor of Congress, a s did Repr esen ta tive William Lawrence, Senator George Vickers, and Senator Lyma n Tr um bell.436 Supreme Court Justice Samuel Freeman Miller called Paschal’s treatise a “very valua ble work .”437 After quoting the Second Amendment, Paschal wrote: This clause has reference to a free gover nm en t, a nd is
based on the idea, tha t the people cannot be oppressed or enslaved, who are not first disarmed.
429. Char les Fairman, Recon str uct ion an d R eun ion , 1864-1888, in 6 HISTORY OF THE SUPREME COURT OF THE UNITED STATES 632 (Pa ul A. F re un d e d., 197 1). 430. See Aynes, supra note 416, a t 86 n .174. 431. S ee, e.g., GEORGE W. PASCH AL, PASCH AL’S ANNOTATED DIGEST (186 8). 432. Char les Fa irm an , Reconstruction and R eunion, 1864-1888, at 3-4, in 7 HISTORY OF THE SUPREME COURT OF THE UNITED STATES (Pau l A. Freun d & Sta nely Katz ed s., 198 7). 433. GEORGE W. PASCH AL, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED (Wa sh in gt on, D. C., W.H . & O .H . Mor ri son 186 8). 434. HAROLD M. HYMAN , A MORE PERFE CT UNION 517 (197 3). 435. Aynes, supra note 416, at 87. 436. See id. 437. SAMUEL FREEMAN MILLER, THE CONSTITUTION OF THE UNITED STATES 34 (188 0). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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The President, by order, disbanded the volunteer companies of the District of Columbia, in November, 1867. His right to do so has been denied.438
Paschal cited Tucker’s Blackstone, Rawle’s Treatise, and the Texas case allowing an enhanced penalt y for use of a bowie knife in a manslaughter.439 Paschal’s discussion of the militia clauses in Article I was more extensive, as he thoroughly covered what had grown to be an extensive body of case law, governing topics such as when the militia could be called out and the parameters of federal control over the m ilitia.440 Th e Milit ia , he said, consist s “of the able-bodied ma le inhabitants of a prescribed age . . . the body of arms-bearing citizens, as contradistiguinshed from the regular army.”441
4. J oel B ishop Joel Prentiss Bishop authored important treatises on criminal law, and in those treatises addressed criminal law- relat ed constitutional issues in passing. The 1865 th ird edition of Commentaries on the Criminal Law and the 1873 first edit ion of Com m enta ries on th e law of S ta tu tory Crim es contained identical discussions of the Second Amendment: “This pr ovis ion is found among the amendments; and, though most of the amendments are restrictions on the General Governmen t alone, not on the States, this one seems to be of a nature to bind both the State and National legisla tures; and doubtless it does.”442 Bishop obviously adhered to the Standard Model individual rights view; he view ed the Secon d Am en dm en t as a restrict ion
438. PASCH AL, supra note 433 , a t 2 56 (ci ta ti ons om it te d). 439. See Cockrum v. Stat e, 24 Tex. 394 (1859). The first par agr aph of Pascha l’s exp osit ion is taken from Cockrum . 440. See PASCH AL, supra note 433, at 133-36. 441. Id. at 133, 135. 442. J OEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF STATU TOR Y CRIMES § 792, at 497 (1873) [hereinafter BISHOP, STATU TOR Y CRIMES]; see also 1 J OEL PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL LAW § 124, at 73 (3d ed. 1865)[hereinafter BISHOP, CRIMINAL LAW]. Bishop was a leading founder of the late nineteenth centu ry “classical” appr oach t o law, alt hough his contribution ha s been unjustly oversha dowed by L an gdell a nd ot her Ha rva rd p rofessor s. S ee St ep he n A. Siegel, Joel Bishop’s Orthodoxy, 13 LAW & HIST. REV. 215 -16 (1 995 ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1480 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 on state governments, not a protection of state governments against the federal government. Bishop continued: As to its int erpretation, if we look to this quest ion in th e light
of juridical reason, without the aid of specific a uthority, we shall be led t o th e conclu sion , th at th e pr ovision pr otect s on ly the right to “keep” such “arms” as are used for purposes of war, in dis tin ction from those which are employed in quarrels, brawls, and fig hts betw een m add en ed in div idu als; sin ce such, only, are pr operly known by the n am e of “arms;” and such, only, a re ad ap te d t o pr om ote “the se cur ity of a fr ee St at e.”443 Bishop thus followed the dominant line of state constitutional case la w, e xclu ding cer tain weapon s fr om the scop e of the right. Next, Bishop articulated the nineteenth century’s most restr ictive reading of the Second Amendment righ t to bear arms in a scholarly treatise, although Bishop acknowledged that there was contrary case law: In like m an ner , the r ight t o “bear” arms refers m erely to the
military way of using them, not to their use in bravado and affray. Still, the Georgia tribunal seems to have held, that a statute proh ibiting th e open w ear ing of arm s u pon th e p er son violates this provision of the Constitution, though a statu te against wearing of the arms concealed does not.444 And, in accor d with th e la tt er br an ch of t his G eor gia doct rin e, t he Lou isia na court has laid it down, tha t the statu te against carrying concealed weapons does not infringe the constitutional right of th e p eop le t o ke ep an d b ea r a rm s; for this stat ut e is a m ea su re of police, pr ohibiting only a particular mode of bearing arms, found dangerous to the community.445 Bishop’s contrast between bearing arms in “the military way” versus using them for “bravado and affray” (such as
443. BISHOP, STATU TOR Y CRIMES, supra note 442, § 792, at 497; see als o 1 BISHOP, CRIM INAL LAW, supra note 442, § 124, at 73-74. 444. Here Bishop cited Nunn v. State, 1 Ga. 243 (1847) (discussing an individual Second Amendmen t right to carry un concealed guns for personal defense), an d Stockdale v. State, 32 Ga . 22 5 (18 61) (d ecis ion of Con fed er at e s ta te cou rt ) (rea sonin g that a person does not violate law against concealed carry if part of the gu n is vis ibl e). 445. BISHOP, STATUTORY CRIMES, supra note 442, § 792, at 497-98 (citing State v. Jumel, 13 L a. Ann . 399 (185 8), wh ich explained that the Second Amendment guara ntees an individ ua l righ t t o carr y for per sona l defen se, but not to concealed carry). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1481 shooting them off at New Year’s, or using them in duels), does not explicitly state Bishop’s views on carryin g gu ns for personal defense. But Bishop’s acknowledgment of Nunn v. State (a case guaranteeing a right to carry unconcealed fir ea rms for person al protection) as a case contrary to Bishop’s own position suggests that Bishop opposed gun carr ying for personal defense.446 Read in the most restrictive light possible, Bishop’s treatise suggests: (1) t he S econ d Am endment guarantees a right of individua ls to own guns; (2) t he right’s sole purpose was insur rection against tyranny; (3) the arms which could be kept included only arms suita ble for wa rfare; and (4) th e right to “bear” arms included only the r ight to carry arm s in public durin g milit ia a ctivity. There is no nineteenth century commentator who appears more dubious about the Second Amendment than Bishop. All of the restriction s ar ticulat ed by Bish op were, at th e least, well- grounded in at least one branch of nineteenth century case law. It is important to recognize that, as restrictive as Bishop’s approach is, it is clearly an individua l rights one, comforta bly with in t he Sta ndar d Model. The 190 1 ed it ion of S ta tu tory Crim es condensed t he Secon d Amendment discussion, emphasizing that the Second Amendment is “declaratory of personal rights” but (like most of the rest of the Bill of Rights) does not bind th e states: It is am ong th e olde r a m en dm en ts, most of which ar e h eld t o
be re st rict ions on th e n at ional pow er , and not to bind the states. This one is declaratory of personal righ ts , so a lso a re som e of the others which are adjudged not to extend to the states; and, contrary perh aps to some former views, it is now set tled in authority that this provision has no relevancy to st at e legislat ion.447
5. J ohn N orton Pom eroy New York University law pr ofessor John Norton Pomer oy was “one of the ten top law teachers in nineteen th century
446. To pu t t he me re pos se ss ion of gu ns for home defen se w ith in t he scope of “bravado and affray” would require a very elastic reading of Bishop’s words. 447. J OEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF STATU TOR Y CRIMES § 792 , a t 5 36 (3 d e d. 1 901 ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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Amer ica.”448 Pomeroy moved to California, where he led the founding of the Hastings College of Law449 (th e first three-year law school in the Amer ican Wes t),450 and served as the reporter for the California Suprem e Court. His tr eat ise on equit y endured for decades as the leading authority on the subject,451 and his tr eatises on mu nicipa l law, contr acts, wa ter la w, and other subjects were also important, continuing for many editions.452 But of all Pomeroy’s books, the one that was apparen tly most in demand was An Introduction to the Constitutional Law of the United States.453 First published in 1870, the book went through eight editions un til Pomeroy’s death in 1885,454 plus a posthumous edition in 1888.455 Pomeroy’s constitutional treatise was known n ationally and used as a textbook at West Point and other colleges.456 Prefatory to his discu ss ion of the cla uses of t he Bill of Right s following the First Amendment, Pomer oy stated, “[W]hatever constru ction is given to these clauses, will also
448. THO MAS GARDEN BARNES, HASTINGS COLLEGE OF LAW: THE FIRST CENTURY 89 (197 8). 449. See Bar bar a Allen Babcock, Clara Shortridge Foltz: “First Woman”, 28 VAL. U. L. REV. 1231, 126 6 (19 88). 450. See Siegel, supra note 379, at 1453 n.89. 451. See JOHN NORTON POMEROY, A TREATISE ON EQU ITY J URISPRUDEN CE (5th ed. 194 1); J OHN NORTON POMEROY, POMEROY’S EQUITABLE REMEDIES (191 9); Robert G. Bone, Mapping the Bound aries of a Dispute: Conceptions of Ideal Lawsuit Structure from th e Fiel d C ode t o th e Fed eral R ul es, 89 COLUM. L. REV. 1, 27 n.63 (1989) (“Many considered his tr ea tis e on equ ity jur isp ru den ce . . . t he lea din g wor k on the s ubject during th e la te ni ne te en th an d e ar ly t went iet h ce nt ur ies .”). 452. See JOHN NORTON POMEROY, AN INTRODUCTION TO MUNICIPAL LAW (2d ed. 188 6); J OHN NORTON POMEROY, A TREATISE ON THE LAW OF WATER RIGHTS (189 3); J OHN NORTON POMEROY, A TREATISE ON THE SPECIFIC PERFORMANCE OF CONTRACTS (2d ed . 18 74); J OHN NORTON POMEROY, CODE REMEDIES (4th ed. 1904 ); J OHN NORTON POMEROY, LECTURES ON INTE RNAT IONAL LAW IN TIME OF PEACE (1886 ); J OHN NORTON POMEROY, REMEDIES AND REMEDIAL RIGHTS BY THE CIVIL ACTION ACCORDING TO THE REFORMED AMERICAN PROCEDURE (3d ed. 1894). The Cod e R em edies book “was the seminal lat e n ine te en th cen tu ry wor k on th at subject .” Bone, supra note 451, at 27 n.63. 453. J OHN POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES (187 0). 454. See JOHN POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE UNITED STATES (8th ed. 1885 ); Bone, supra note 451, at 27 n.63 (year of Pom eroy’s death). 455. See Siega l, supra note 379, at 1469 n.201. 456. See Aynes, supra note 416, at 90. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1483 apply to the same or similar provisions in the state constitutions.”457 He wrote: 1. The r igh t of t he p eop le t o ke ep and b ea r a rm s. T he object of
this clause is to secure a well-regulated m ilitia. It ha s alwa ys been the policy of free governments to dispense, as far as possible, with sta nding armies, and to rely for their defence, both against foreign inva sion an d d om estic t urb ulen ce, u pon the m ilitia . Regu lar ar m ies h ave a lwa ys be en as sociat ed w ith despotism. But a militia would be useless unless citizens were allowe d to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to op pos e t hem selves in m ilit ary force against usurpations of the government, as well as against enemies from wit hou t, t ha t gover nm en t is forbid den by a ny law or proceeding to invade or destroy the right to keep and bear arm s. Bu t a ll su ch pr ovis ion s, a ll su ch guarantees, must be construed with reference to their intent and design. This constit utional inh ibition is cer ta inly not violat ed b y laws forbid din g per son s to car ry da ng er ous or con cealed weapons, or laws forbidding the accumulation of quantities of arms with the design to use them in a riotous or seditious mann er. The clause is analogous to t he on e secu ring fr eedom of sp eech and of the pr ess. F re ed om , not lice nse, is secu re d; t he fa ir u se, not the libelous abuse, is protected.458 Pomeroy’s analysis succinctly distills the nineteenth century
Standard Model. St anding a rmies were still considered dangerous. The militia was to be secured by guar an teeing a righ t of individ ual cit izens “to exe rcise t hem selves in the u se of warlike weapons.”459 Lik e J oseph St ory, Pomeroy saw nothing inconsistent with th e role of the people’s militia in suppressing “domestic turbulence”and the Second Amendment’s purpose “to secure to the people the abilit y to oppose them selves in m ilitary force against usur pations of the govern ment .”460 Repu blican order could be distu rbed by domestic riots or domestic tyrants; the Secon d Am en dm en t wa s t o en su re t he defeat of bot h.
457. POMEROY, supra note 454, at 152. 458. Id. at 152-53. 459. Id. at 152. 460. Id.; cf. 3 STORY, supra note 106, at 746-47. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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To Pomeroy, the essence of th e n ation wa s t he people of t he United States, not the government they had erected.461 Therefore, the people’s sovereignt y “still poten tia lly exist[s] in the nation, ready to be called forth whenever th e people sha ll see fit . . . to put their inherent, paramount force in motion .”462 Consistent with Cruikshank, Pomeroy saw the limitations expressed in t he Bill of Rights not as gran ts by the government of certain rights to the people, but instead as safeguards created by th e people to protect the priva te righ ts wh ich exist an terior to a ll
governments . . . th ese lim ita tion s, I sa y, a re th e ve ry por tion s of th e con st itu tion wh ich , m ore t han all other s, shou ld r eceive a broad, exte n siv e, libe ral in te rpr et ation in favor of th e citizen agains t the governm ent[]. All experience shows that these fundamental righ ts ar e the m ost e xposed t o injurious legisla tion ; and it often needs the whole moral force of t h e judicia ry to s hield th em from inva sion .463 Pomeroy, consistent with explicit st at e constitu tion al provisions and state case law from the post-war years, thought there were excep tion s to the right to arms: carrying concealed weapons and seditious a ccumulat ion of weapons. These exceptions, which only make sen se as excep tion s t o an individual right, not to a state government right, ar e the exce pt ion s which prove the rule: the Second Amen dment, like the Fir st Amen dment, is an individual r ight , but abuse of t he right is not constitutionally protected.
6. Oliv er W endell Holm es, J r., an d J am es Kent Oliver Wendell Holmes, J r., wa s a dist inguished lega l scholar and p rofessor of la w a t Harva rd. Servin g on the Massachusetts Supr eme J udicial Cou rt, he be came on e of t he most important judges of the nineteenth century. His three decades of service on the United States Supreme Court have
461. “Th e people themselves, the entire mass of persons who compose the political society, are the true nation, the final, perma nent depository of all power. The organized govern me nt , wh at eve r b e it s for m a nd cha ra cter, is but the creature and servant of the p olitical u nit . . . .” JOHN POMEROY, AN INTRODUCTION TO CONS TITU TION AL LAW OF THE UNITED STATES 28 (9 th ed . 18 88). 462. Id. at 220. 463. Id. at 718. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1485 made him the m ost wid ely rem em bered legal schola r from the nineteenth century. But in 1873, Holmes was only a t t he beginning of his legal career when his first book was published, an annotated edition of Chancellor James Kent’s Com m enta ries on American Law.464 Chancellor Kent’s multi-volume commentaries, first published in 1826, had displaced Tucker’s American Blackstone as th e leading American law book. Kent’s Com m enta ries had syst ema tically discussed the main body of the Const it ution , including th e Congressional militia powers.465 The Com m enta ries did n ot in clu de a syst em atic a nalys is of amendments to the Const it ution , a nd Ken t sa id nothin g a bou t the Second Amendment, although he did extol self-defense as one of th e absolu te r igh ts of Am er ica n citizen s. Americans ha ve “the natural right of self-defence, in all those cases in which the law is eit her too slow or too feeble t o st ay t he h and of violence.”466 Kent explained th at homicide in self-defense is justifiable, not merely excusable, an d tha t t he righ t t o self- defense “cann ot be superseded by t he law of society.”467 Holmes added his own annotations to Kent’s Com m enta ries, and Holm es did a dd ress t he r igh t to arms. In a discu ss ion of the police power, Holmes observed: As the Constitution of the United States, and the constitutions
of sever al of th e sta te s, in te rm s m ore or les s comprehen sive, declar e the right of the people to keep and bear arms, it h as been a su bject of grave discussion, in some of the state courts,
464. J AMES KENT, COMMENTARIE S ON AMERICAN LAW (O.W. Holm es, J r. ed ., Boston, Lit tl e, B rown 12t h e d. 1 873 ). 465. See 1 id. at *262-67. All citations to Kent use the st ar pa gination system , wh ich is k eye d t o th e fir st edi tion . 466. 2 id. at *15. 467. Id. Lawren ce Cress uses the fact that “James Kent does not mention the right to bear arms among the individual rights guaranteed in English tradition and Ame ri can law” to bolster the argument that the Second Amendment protects the authority of stat e govern men ts, n ot th e righ t of individ ua ls. Cr ess, supra note 2, at 42 n.4 8. Cr ess cite s Ke nt ’s discu ssi on of per son al r igh ts in t he secon d volu me of th e Com m ent ari es on p ages 1-13. See id. But in fact, there are many individual constitutional righ ts wh ich Ken t did n ot me nt ion in t hese page s, such as t he r ight to as sem ble, th e r igh t t o pet iti on, a nd pr ote ction from unreasonable searches and seizures. Cres s’s citation to Ken t t erm ina tes in th e midd le of Kent’s dis cus sion of personal rights, rather t han at the end of a section. Cress thereby avoids directing the reader’s attention to the last full page of the section, in which Kent discussed and praised the individual r ight to self-defense. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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wheth er a statute proh ibiting per sons, wh en n ot on a journ ey, or as tr av ellers , from wearing or carrying concealed w eapons, be const itu tion al. Th er e h as bee n a g re at differ en ce of opin ion on th e qu estion .468
Holmes then noted the states and ca ses w her e such restrict ion s had been found un constitu tional (Ken tu cky, Tennessee, an d Mississippi) and the states where such restrictions had been upheld (Indiana, Alabama, and Arkansas). Holmes concluded with his own opinion that “[a]s the practice of carrying concealed weapons h as been often so atrociously abused, it would be ver y desir able, on pr inciples of public policy, tha t t he respective legislatur es should have th e compet ent power to secure the public peace, and guard against persona l violence by such a precau tionar y provision.”469 Holmes, like James Kent, Thomas Cooley, and Joseph Story, earned a place on Roscoe Pound’s list of the ten greatest Amer ica n judges.470 As a jurist, Holmes made two more contribu tion s to self-defense jurisprudence. In Patsone v. Pen nsylvania, he upheld a state statute which barred aliens from possessin g rifles an d sh otguns.471 Holmes observed that the purpose of the statute was to preserve the gam e for consumption by Americans.472 And he explained that the statute “does not extend to weapons such as pistols that may be supposed to be needed occasionally for self-defence.”473
468. 2 KENT, supra note 464, at *340 n.2. 469. Id. 470. See POUND, supra note 380, a t 30 n .2. 471. See Pa ts one v. Pe nn syl va ni a, 232 U. S. 1 38 (1 914 ). 472. See id. at 143. Holmes cit ed s eve ra l ca ses a ffirm in g st at e a ut hor it y t o con trol the ta kin g of gam e: Lawton v. S teele, 152 U.S. 133 (189 4) (holding that a ban on the use of nets for fishing on rivers is within police power; the preservation of game is a core comp one nt of th e police pow er ); S ilz v. H est erber g, 211 U.S . 31 (19 08) (h olding that the fourteenth amendment wa s n ot vi olat ed b y a s ta te law ba nn ing hu nt ing of certa in birds dur in g cer ta in se as ons); Pu rit y E xt ract Co. v . L yn ch, 226 U.S. 192 (1912) (quotin g Silz fav orab ly). In tr eat ing Patsone as a pure hunting cas e, Holmes willfully ignored the facts. Despite the legislative declaration, th e Patsone stat ute h ad been passed ver y shor tly after a violent incident involving immigrant mine worke rs. S ee G. Edward Whit e, Oli ver Wendell Holmes, Jr., in THE SUPREME COURT JUSTICES: A BIOGR APH ICAL DICTIONARY 225, 228 (Melvin I. Urofsky ed., 1994). The stat ute was, like earlier English stat utes , condemned by Blackst one, Tucker, a nd Rawle, ost en sibly for th e pr ese rvat ion of game, but actually for the protection of the existin g govern men t. See supra notes 36-39, 61, 96, 120 and accompanying text. 473. Patsone, 232 U.S. at 143. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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But Holmes’ most important work in a self-defense case was the 1921 decision Brown v. United States.474 The Brown case began at a fed er al n ava l ya rd in Texa s. A man named Hermis had twice assaulted Brown with a knife, and warned that the next tim e, eith er H erm is or Br own “would go off in a bla ck box.”475 One da y, Herm is again attacked Br own with a knife; Brown ran to get his coat, which contained a pistol. Hermis pursued, an d Brown sh ot him four tim es, killing him. At trial, the judge instructed the jury that Brown had a duty to retreat, if he could do so safely. Justice Holmes, a legal historian , tra ced the du ty to retreat rule to an earlier period in English history, when th e law did not even recognize a legal r ight of self-defense. “The law has gr own ,” Holmes wr ote, “in the dir ect ion of ru les consisten t wit h human nature.”476 Thus, declared Holmes, there is no legal duty to ret rea t before u sing dea dly for ce. N or should a victim’s response to a crimina l at ta ck be second-guessed a t leisure by a judge: “Detached refle ction cannot be demanded in the presen ce of an u plifted knife.”477
7. Editions of Bla ckst one By the la te n in et eenth cen tury, Am er ica n law had come a lon g way from the days when Tucker’s American Blackstone was the only law book available. But Blackstone was still the first treatise read by most would-be lawyers, and th e only law book read by some.478 Thomas Cooley’s edition of Blackstone,479 while benefit tin g fr om its author’s grea t pr estige, wa s n ot the only updated edition available. English law professor Herbert Br oom 480 and Edward A. Hadley had their own edition, pub
474. 256 U. S. 3 35 (1 921 ). 475. Id. at 342. 476. Id. at 343. This echoes Holmes’ observation in his classic 1881 book, The Com m on Law, that “[t]he life of the law has not been logic: it has been experien ce.” O.W. HOLMES, JR., THE COMMON LAW (188 1). 477. Br own, 256 U.S . at 343; cf. O.W. Holm es, J r., Georg e Otis S ha tt uck , in THE OCCAS ION AL SPEECHES OF JUSTICE OLIVER WENDE LL HOLMES 92, 95 (Mark DeWolfe Howe ed., 1962) (“I t is one thing to ut ter a happy phr ase from a pr otected cloister; anoth er to think under fire—to think for action upon which great interes ts de pe nd .”). 478. See Car rin gton , supra note 381, at 516. 479. BLACKSTONE, supra note 403. 480. Herbert E. Br oom au th ored a nu mbe r of tr eat ises. S ee, e.g., HERBERT BROOM, COMMENTARIES ON THE COMMON LAW: DESIGNED AS INTRODUCTORY TO ITS D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1488 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 lished in 1875.481 Th e Broom and H adley a nnotation abou t Blackstone’s description of the English right to arms quoted the Second Amendment, and pointed out: “The constitutions of several of the states contain a simila r cla use. Th e r igh t of carrying ar ms for self-protection wa s discussed in Bliss v. Commonwealth, 2 Lit. 90; Nunn v. State, 1 Kelly, 243; and Ely v. Thompson, 3 A.K. Mar sh. 73.”482 The citations suggest a rather st rong prodefen se in clin ation on the part of Broom and Ha dley, since they are the three strongest cases from the nineteenth centur y involving an individual right to arms. Bliss declared a law against concealed carry unconstitutional;483 Nunn declared a law aga inst open carrying unconstitu tional, while extolling the right to arms;484 and Ely held that free people of color had a righ t to use force t o defend themselves against criminal attacks by whites.485 William Draper Lewis was a leading Progressive, the Dean of the University of Pen nsylva nia La w School, t he fir st Dir ect or of the American Law Inst itut e, and one of the att orneys who wrote the American Civil Liberties Union’s amicus brief in th e Korematsu case.486 Lewis’s 1897 ed it ion of Blackstone, like Broom and Hadley’s Blackstone, explicated an individual Second Amendment right, but cited Andrews v. State to show th at concealed carr y restr ictions were lawful.487
STUDY (re pr int ed. 1997 ); HERBERT BROOM, LEGAL MAXIMS (W. J. Byrne ed., 9th ed. 192 4); H ERBERT BROOM, SELECTION OF LEGAL MAXIMS CLASSIFIED AND ILLUSTRATED (reprint ed . 19 71); H ERBERT BROOM, THE PHILOSOPHY OF LAW: BEING NOTES OF LECTURES DELIVERED DURING TWENTY-THREE YEARS (1852 TO 1875 IN THE INNER TEMPLE HALL) ADAPTED FOR STUDENTS (reprint ed. 198 0); E. H ILTON JACKSON & HERBERT BROOM, LATIN FOR LAWYERS (1992) (1915). Broom taught at the Inns of Court, in Lon don. The Maxim s was “enormously successful” and enjoyed ten editions, from 1845 t o 1939. S ee Simp son, supra note 96, at 647. 481. WILLI AM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Herbert Br oom & E dw ar d A. H ad ley ed s., 187 5). 482. 1 id. at 121 n.64. 483. See supra text a ccompanying note 152. 484. See supra text a ccompanying notes 246-54. 485. See supra notes 394-95 an d accompa nyin g text . 486. See Ste phe n Bot ein, William Draper Lewis, in DICT. AM. BIO., supra note 90; Korematsu v. Un ited Sta tes , 323 U.S . 214 (1944 ); see also WILLIAM D. LEWIS & A. Q. KEASBEY, MISCELLANEOUS WRITINGS OF THE LATE HON. JOSEPH P. BRADLEY AND A REVIEW OF HIS JUDICIAL RECORD (188 6). 487. A defe nce of the right to carry concealed deadly weapons—delivered, however, in a dissent ing opinion in Andrews v. St ate, 3 H eisk. (Tenn.) 199 D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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8. Theophilus Parsons Theophilius Parsons was the son of the renowned Theophilus Parsons, Chief Justice of the Massachusett s Supreme Judicial Court from 1806 t o 1813. The younger Parsons was “a successful insurance and adm iralty lawyer”488 who later taught contracts at Ha rva rd Law School.489 Although Parsons was a poor lecturer,490 he wrote several treatises,491 including a very popular one on contra ct law, which Samuel Willis ton la ter took over as r evisor and editor. In 1876, Parsons wrote, for a nonlegal au dien ce, The Personal and Property Rights of a Citizen of the Un ited States.492 Parsons’ treatment of the Second Amendment came as part of his three paragraph chapter “Military Rights and Duties.” After describing federal militia powers, he wr ote: “Militia ” undoubtedly means the body of ar m s-bea rin g citizens,
as distinguish ed from the regu lar army. In 1863 Congress passed an act declaring that all citizens of the United States, &c., “are he re by d eclar ed t o const itu te the national forces, a nd shall be liable to perform military duty in the service of the United States, when called out by the President for that purpose.” In N ew York it has been he ld that this act was uncons tit ut iona l, and in Pennsylvania that it was constitutional; both the decisions being by single judges. The secon d a rt icle of th e a m en dm en ts to t he con st itu tion provides tha t a well-regulated militia being necessary to the
(187 1). That th e right of carrying arms as secured by t he U.S . cons tit ut ion, and gener ally by St at e constit ut ions, does n ot includ e the h abitual carrying of concealed deadly weapons by private individuals. 1 WILLI AM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 144 n.91 (William Draper Le wis ed ., 1897 ). 488. Paul Fin kelm an , Leg al E th ics a nd Fu git ive S laves: The A nt hon y B ur ns Cas e, Judge Loring, and Abolitionist Attorneys, 17 CARDO ZO L. REV. 179 3, 1 836 (199 6). 489. See Allen D. Boyer, Book Review, Logic an d E xper ien ce: Th e Orig in of Modern Am erican L egal E du cati on, 80 CORNELL L. REV. 362 (199 5). 490. See Robert W. Gordon , The Case For (and Against) Harvard, 93 MICH. L. REV. 1231, 1233 (1995) (recounting how one student stopped taking notes in Parsons’ class in October , writ ing in h is notebook “at th is point Parsons became Pathetic!”). 491. See E. Allan Farnsworth, Contracts S cholarsh ip in t he Age of the A nth ology, 85 MICH. L. REV. 140 6, 1 408 -09 (1 987 ). 492. THEOPHILUS PARSONS, THE PERSONAL AND PROP ER TY RIGH TS O F A CITIZEN OF THE UNITED STATES: HOW TO EXERCISE AND HOW TO PRESERVE THEM (Hartford, S.S. Scr an ton 187 6). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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security of a free State, the right of the people to keep and bear arms shall not be infringed.493 Since Parson s h as n othin g t o sa y a bou t the Secon d
Amendment, other than to quote it, it is difficult to discer n h is views, if any, on the subject. Thus, he is the only nineteenth century commentator whose statement about the Second Amendment may be sa id not to take a St anda rd Model position .
9. A foreigner’s vantage: von Holst In 1886, Dr. Hermann Eduard von Holst, a member of the German Pr ivy Council and professor at the University of Fr eiburg, authored a treatise on American law for a European audience.494 After quoting the Second Amendment, he noted that It has th er efor e be en ar gu ed th at th e con st itu tion al pr ovision
refers only to arms necessary or suitable for the equ ipment of militia ; although it must not be inferred from this that the right is restricted to those citizens who belong to the m ilitia . As to wheth er or not the bearing of other arm s can be forbidden, judicial decisions are far apart. It is, however, gen er ally adm itted tha t the secre t ca rrying of arm s can be prohibited.495 Holst also authored an eight-volume treatise entitled,
Constitutional and Political History of the United States.496 He devoted several chapters to the pre-Civil War t roubles in Kansas an d noted, “Th e gover nor and t he federal dragoon s were ver y active in the discover y and con fiscation of ar ms, although the possession of bearing of arms is a right of every American, guaranteed by the constitution.”497
493. Id. at 189. 494. See H. VON HOLST, THE CONSTITUTIONAL LAW OF THE UNITED STATES OF AMERICA (Alfr ed Bis hop Mas on tr an s., Ch ica go, C al la gh an 188 7). 495. Id. at 230. 496. H. VON HOLST, THE CONSTITUTIONAL AND POLITICAL HISTORY OF THE UNITED STATES (John J . Lalor trans., Chicago, Callaghan 1885) (first published in 1873, as Verfassung un d D em okr at ie d er V erein igt en S ta at en). 497. 5 id. at 306-07. Cont ra ry t o the tit le chosen by th e Amer ican p ublis her , th e book is rea lly a const itu tiona l hist ory from 175 0, with an eye on even ts lea ding to the slavery crisis. See Herman n Ed ward von H olst, in DICT. AM. BIO., supra note 90. Holst had lived in America for many year s, after being exiled for writing a pamphlet opposing Pru ssian dictat orship. His eight volume opus was published a fter he was D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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10. John Hare Thus far, none of the la te n in et eenth cen tury com men tators had dealt with Cruikshank and Presser in much detail. In contrast, Pennsylvania state dist rict judge John Hare’s treatise American Constitutional Law addressed the Second Amendment exclusively through the lens of two recent Supreme Court cases.498 Hare wrote: [T]h e Second Amendm ent, which declares, “A well-regulated
m ilitia being necessary to the security of a free State, the right of the people to keep and bear a rm s shall not be infr inged,” neither confers the right so gu ar an teed n or la ys a ny restra int on the States. They may make any r egu lation wh ich doe s n ot im pa ir the pr erogative of the General Governm ent to ca ll fort h all citizens cap ab le of be ar ing a rm s for th e p ublic d efen ce, or disa ble the peop le from performing their du ty in response to such a behest. So t he r igh t volunta rily to as socia te as a m ilitar y com pa ny or org an iza tion , or to drill and parade with arms, is not an attribute of national citizenship, but m ay be re gu la te d b y ea ch State and forbidden to any company or body of men who are not duly organized for that en d, according to her laws or those passed by Congress under the p ower to provide for organ izing, arming, an d d iscip lin ing the m ilitia. Su ch a conclu sion is the more n ece ss ary beca u se th e a u th ority of the General Government in this beha lf is so limited as to be pr actically a de ad let te r; a nd if it we re held to b e ex clusive of the States, an important arm of national defence an d for th e su pp re ssion of riot and insurrection would be impotent.499
Th e a bove qu otation contain s t wo pin point cit es to Presser.500 Hare’s next paragraph observed that, similarly, the right to practice law in a state court was not an attribute of national
allowed to return to German y; the books’ moral fervor and devotion to freedom made them highly readable, in spite of their length. Holst ’s repu ta ti on w as of su ch magnitu de th at he wa s chosen to hea d th e History Department at the new University of Chica go in 1892. See id. 498. See 1 J. I. CLARK HARE, AMERICAN CONSTITUTIONAL LAW (Boston, Little, Brown 188 9); see also Fr an cis Sam uel P hilbr ick, John In nes Clark Hare, in Dict . AM . BIO., supra note 90. 499. 1 HARE, supra note 498, a t 521 -22 (citat ions om itt ed). 500. See id. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1492 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 citizenship, but depended exclusively on the la ws of th e relevant state.501 He continued: The prohibitor y art icles of th e Con stitu tion wer e crit ically
considered by Chief-Justice Waite in The United States v. Cruikshank in an opinion which gives a clear and consistent view of their operation on the United States, the States, and the people, and defines th e limits within w hich they ma y be enforced by Congress. The case arose out of an indictment containing numerous counts, drawn under a statute which was held to be invalid because the clauses r elied on for it s supp ort sim ply disa ble the States or the Ge ner al Gover nm en t, w ith out im posin g any duty or restraint on individu als, a nd cons equ en tly do n ot a fford a g rou nd for pe nal legis lation .502 Hare’s exp osit ion of Presser and Cruikshank was fully consistent with t he Stan dard Model. Presser removed the Second Amendment as a barrier to state gun control, except to the extent that a state law might interfere with federal militia powers. Cruikshank stood for the principle that the Fourteenth Amendment does not grant Congress power to legislate against nongovernmental conduct. The language in the first paragraph that the Second Amendment does not “confer[] the right so guaranteed” tracked Cruikshank’s language that the Second Amendment (like the Fir st Amen dment r ight of assembly) guaranteed a pre-existing human right, rather than conferring a new right.
11. George Ticknor Curtis George Ticknor Curtis achieved national fame as the losing lawyer in the Dred Scott case.503 Th er ea fter , h e enjoyed a lon g career as a Washington lawyer, and fr equen tly p racticed before the Supreme Court.504 George Cu rt is was also a pr odigiou s author of important treatises on jurisprudence, equity, admiralty, an d intellectu al propert y.505 His modern importance,
501. See id. at 522. 502. Id. 503. Scott v. Sa nfor d, 60 U.S . (19 H ow.) 39 (1856 ); see Car l Rus sell F ish, George Ticknor Curtis, in DICT. AM. BIO., supra note 90. 504. His br oth er Ben jam in C ur tis ser ved on t he U.S . Su pr em e Cou rt . 505. See GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT (184 7); GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF PATENTS (1849 ); GEORGE TICKNOR CURTIS, COMMENTARIES ON THE JURISDICTION, PRACTICE, AND PECU LIAR D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1493 however, is based m ain ly on his two volum e Con stitutional History of the Un ited S ta tes: From th e Declarat ion of Independence to the Close of Their Civil War. “This work is the classic treatment of the Constitution from the Federalist, Webst erian point of view.”506 The creation of the Constitution, and the causes and afterm at h of the Civil War were Cur tis’s prima ry focus, and his at ten tion to the Bill of Righ ts w as cu rsor y. In his chapt er on the Bill of Rights, Curtis focused on the Ninth and Tenth Amendments as limitations of federal power, and offered no ela bor ation about any of the first eight amendments.507 But Curtis did plainly treat the Second Amendment as an in divid ual r igh t—one of the “rights of persons”—like the rest of the first eight. Explaining the controversy that led to the crea tion of the Bill of Rights, Curtis noted that the human rights provisions in the text of the Constitution (such as the prohibition on ex post facto laws) “did not secure th e rights of persons as they were provided for in eight of the amendments, and, above all, they d id not rea ch the ve ry im por tant declarations contained in t he nin th an d tenth .”508 Curtis added that amendments in the Bill of Rights w er e r estrict ion s on ly on the federa l government, not the states.509 Volume II contained an annotated app en dix, in wh ich Su pr em e Court case cit ation s were placed next t o the provision to which they pertained. The only citation that Curtis gave for the Second Amendment was to Presser v. Illinois.510
JURISPRUDEN CE OF THE COURTS OF THE UNITED STATES (2 vol s. 1 854 & 18 58); GEORGE TICKNOR CURTIS, DIGEST OF CASES ADJUDICATED IN THE COURTS OF ADMIRALTY OF THE UNITED STATES, AND IN THE HIGH COURT OF ADMIRALTY IN ENGLAND (1839 ); GEORGE TICKNOR CURTIS, EQU ITY P RECEDE NTS (1850 ); GEORGE TICKNOR CURTIS, TREATISE ON THE RIGHTS AND DUTIES OF MERCHANT SEAMEN (184 1). 506. Fish, supra note 503, at ¶ 3. 507. Regarding the Ten th Amen dment , Curtis ar gued tha t th e reser vat ion of power “to the states or to the people” meant the “people” as citizens of part icular states, “not the people of the United Stat es, regarded a s a m ass.” 2 GEORGE TICKNOR CURTIS, CONS TITU TION AL HISTORY OF THE UNITED STATES: FROM THEIR DECLARATION OF INDEPE NDENCE TO THE CLOSE OF THEIR CIVIL WAR 160 n .1 (J osep h C ulb er ts on Cla yton ed., 1896). Esp ousin g th e th eory th at th e Con stitution was created by the people thr ough the st ates—an d not by the people of the nation d irectly—Curtis wrote: “The ‘people of th e U nit ed S ta te s,’ rega rd ed a s a na tion , ha ve n o powe rs of government—they have the power to make a revol ut ion .” Id. 508. Id. at 155. 509. See id. at 159. 510. See id. at 491. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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12. John C. Ordronaux The 1890s saw a significan t a ccelerat ion in th e publication of legal trea tises. Columbia la w professor John Ordronaux, who also held a medical degr ee, wr ote ext en sively on issu es of criminal law and mental health.511 He also wrote Constitutional Legislation in the United States in 1891.512 Ordronaux stated: The right to bear arms ha s alwa ys been the distin ctive
privilege of freemen. Aside from any necessity of se lf- pr ote ction to t he per son , it r epr ese nt s a m ong all nations power coupled with the exercise of a certain jurisdiction. F rom tim e immemorial th e sw ord ha s been th e scep tr e of military sovereignty. From this arose the profession of arms, as a distinctive callin g in every a ge. Exposed as our early colonists were to the atta cks of sa va ges , th e p oss ession of ar m s beca m e an indispensable adjun ct to the agricultural implements employed in th e cu ltiv at ion of th e soil. Me n went armed into the fields, and went a rmed to church. Th ere w as a lways pu blic dan ger. Th is w as re cogn ized by t he la ws of th e P lym outh Colony, wh ich r equ ired t ha t “each p er son for h im self have piece, powder, and sh ot—viz., a sufficient musket or other ser vicea ble piece for wa r, w ith bandeleroes,513 swords, and other appurtenances for himself, and each man-servant he kept able to bear arms.” And another ordinance required that men should go a rmed to church. Whence it followed that the “embattled farmer s”514 of the Revolution naturally enough
511. S ee, e.g., J OHN C. ORDRONAUX, COMMENTARIES ON THE LUN ACY LAW OF NEW YORK AND ON THE JUDICIAL ASPECTS OF INSANITY AT COMMON LAW AND IN EQUITY (187 8); J OHN C. ORDRONAUX, JUDICIAL PROBLEMS RELATING TO THE DISPOSAL OF INSANE CRIMINALS (188 1); J OHN C. ORDRONAUX, THE PLEA OF INSANITY AS AN ANSWER TO INDICTMENT (1880 ); S ee also G. Alder B lum er, John Ordronaux, in DICT. AM. BIO., supra note 90. 512. J OHN ORDRONAUX, CONSTITUTIONAL LEGISLATION IN THE UNITED STATES: ITS ORIGIN, AND APPLICATION TO THE RELATIVE POWERS OF CONGRESS, AND OF STATE LEGISLATURES (189 1). 513. Ordronaux was using a Spanish spelling; the English spelling is “band oliers,” meaning “A shoulder-belt for holding a mm un ition, (Hist.) wit h s ma ll ca ses each containing a cha rge for a mu sket , (now) with small loops or pockets for carr ying cart ridge s.” 1 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 177 (199 3). 514. By the ru de bridge that ar ched the flood, Their flag to April’s breeze unfurled, Here once the embattled farmer s stood, And fired the shot heard r ound the world. Ralph Waldo Emerson, “Concor d Hy mn ” (recit ed a t t he comp let ion of t he Con cord Monument, J ul y 4, 183 7). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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beca m e th e m inute m en of Con cord an d L exin gton, and the foun der s of our na tion al s yst em of milit ia.515 Next , Ordronaux cited Cruikshank for the “arms as a natural right” view: Therefore, it was not n ecessar y that the right to bear arms
should be granted in the Constitution, for it had always existed. It is n ot in cons equ en ce dep en de nt u pon th at instrument, and is only mention ed th er ein as a r estr iction upon the power of the national government against any attempt to infringe it. In other words, it is a right secured and not created.516
Wit hout citing Presser, Ordronaux stated that “this prohibition is not upon the States, whose citizens are left free in respect to th e extent of th eir enjoyment or limit at ion of the right .”517 Because “arms” were mean t “in it s milita ry sense a lone,” states could regulate the carrying of arms. “Thus, the carrying of concealed weapon s m ay be absolu tely pr ohibited wit hout the infringement of any constitutional right, while a statute forbiddin g the bearing of arms openly would be such an infringement .”518 Further , states could requir e per mit s for armed assem blies in public, or for the carryin g of concealed
515. ORDRONAUX, supra note 512, at 241-42 (footnotes omitted). For the last senten ce, Ord onona ux cited a lett er by J ohn Adam s. J ohn Adam s, Letter to Abbé Mably, in 5 WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES: WITH A LIFE OF THE AUTHOR 495 (Charles Francis Adams ed., 1850-56), also cited in ORDRONAUX, supra note 512, at 242 n.2. 516. ORDRONAUX, supra note 512, at 242. Besides Cruikshank, Ordrona ux cited State v. H ews on [sic “Newsom”], 27 N.C. 350, 5 Ired. 35 (1 844 ) (upholding a law against possess ion of weapons by free people of color, since they are n ot parties to the constitutional compact); and Fife v. State, 31 Ark. 455 (1876) for th e na tu ra l right proposition. See id. at 242 n .3. 517. Id. at 242. 518. Id. at 242 -43 (e mp ha sis in origin al ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1496 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 weapons by even a single person .519 Ordronau x concluded with a paragraph summarizing state and federal militia powers.520 Modern scholars migh t quibble wit h some of Ordronaux’s historical det ails. We now know, for example, that the Minutemen were not the same as the militia; the Minut emen were a smaller group, who received extra training.521 The issue for this article, though, is not wheth er Ordronau x and his fellow scholars were right in every detail, but what the legal scholars thought about the Second Amendment. Ordronau x, with a high degree of enthusiasm , join s t he u nanim ous op in ion of other nineteenth century schola rs in viewing t he Secon d Amendment as an individ ual r igh t. Like t he Recon st ruction Congresses, bu t unlik e Bishop, Or dr onaux exult ed the Secon d Amen dment not just for resistance t o tyr anny, but for self- defense.
13. Sam uel Freeman Miller and J .C. Bancroft Davis After practicing medicine in Kentucky for twelve years, Samuel Freeman Miller became an at torney, moved to Iowa, helped found the nascent Republican party in that state, and became frien ds wit h another attorney inter ested in Repu blican politics—Abraham Lincoln.522 Appointed to the Supreme Court by President Lincoln in 1862, Justice Miller served until his death in 1890. Throughout his tenure, he was a strong opponent of allow in g u se of the F ourteenth Amen dment to protect human rights. He lectured on the Constitution at the
519. See id. at 243 (citing Pr esser v. Illinois, 116 U.S. 252 (1886) (holding that the Secon d Am en dm en t is not a limit on state governm ent); Nun n v. Sta te, 1 Ga. 243 (1847) (holding t ha t the Second Ame nd me nt gu ar an te es an in dividu al ri gh t t o car ry arms for p er son al defe ns e, b ut not to ca rr y concealed ); St at e v. J um el, 13 L a. Ann . 399 (1858) (same holding as Nunn); Stat e v. Smith, 11 La. Ann. 633, 66 Am. Dec. 208 (1856) (same holdin g as Nunn); State v. Chandler, 5 La. Ann. 489 (1850) (same holding as Nunn); Andrews v. Stat e, 50 Tenn. (3 Heisk.) 165 (1872) (esta blishin g an individual Secon d Am en dm en t r igh t t o carry unconcealed arms for persona l defense; the Ame nd me nt en com pa ss es al l a rm s u sa ble in “civili zed wa rfa re ”)). 520. See ORDRONAUX, supra note 512, at 243. 521. See JOHN R. GALVIN, THE MINUTE MEN: THE FIRST FIGHT: MYTHS AND REALITIES OF THE AMERICAN REVOLUTION (1989 ) (pub lish ed in con junction with the Institute of La nd Wa rfa re Ass ocia ti on of th e U .S. Arm y); ROBERT A. GROSS, THE MINUTEMEN AND THEIR WORLD 59 (1 976 ). 522. See Ph ysi cian s in Pu bli c S ervice to A m erica , POLIT ICAL STETHOSCOPE, Summ er 1996 (visited Feb. 6, 1998)
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University of Michigan Alumni Day, at a Philadelphia cele br ation commemorating th e Constitution, and ten times at National University La w School in Washington, in the years 1887-1890.523 After his death, the lectures were collected and published as a book in 1893.524 Regar ding Cruikshank, h e cit ed the ca se for the proposition that the Seventh Amendment is “a restriction upon the power of Con gr ess, bu t did n ot lim it the power of the State governments in respect to their own citizens.”525 He did not mention Presser in his lectures. Miller’s edit or, J.C. Bancroft Davis, wr ote a n a ppendix to Lectures on th e Con stitution of the Un ited S ta tes, to discuss constitutional provisions which ha d not been addressed in th e Miller lectures.526 The editor cited Cruikshank for the proposition that the Fourteenth Amendment sim ply fur nis he s a n a dd ition al guaranty against any
encroachment by the States upon the fundamental rights which belong to every citizen as a member of socie ty. . . . The only obligation resting upon the United States is to see that the States do not deny the right. This the amendm ent guar ant ees, but no more.527
On the same page, he cited Presser for the statement that the Fourteenth Amendment Privileges and Immunities Clause “does not prevent a Stat e from passin g such laws to regulate the privilege s a nd immunit ies of it s own cit izens a s d o not abridge their privileges and immunities as citizens of the Un ited St at es.”528
523. See SAMUEL FREEMAN MILLER, LECTURES ON THE CONSTITUTION OF THE UNITED STATES, at v (F re d B. Rot hm an & Co. 198 0) (18 93). 524. See id. 525. Id. at 521. 526. The editor, John Chandler Bancroft Davis, had served as U.S. Minister t o Germany from 1874 -77, a s a ctin g Se cre ta ry of State in the Grant administration, as a Judge on th e Cour t of Claim s, an d as th e re port er for t he U .S. Su pre me C our t. See Claude Moore F ues s, John Chand ler Bancroft Davis, in DICT. AM. BIO., supra note 90; The Political Graveyard (visited Feb. 6, 1998)
1498 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998
In a discu ss ion of th e m ilit ia clauses in Art icle I of t he Con st it ution , the editor cited Presser for the premise that the power ret ain ed by st at es over t he m ilitia is so complete that a State may, unless restrained by its own
cons tit ution , enact law s to prevent any body of men wha tever, other tha n th e regularly organized volunteer m ilitia of the State, and the troops of the United Sta tes, from as sociat ing them selves together as a m ilitar y com pa ny or org an iza tion , or to drill or parade with arms in any place within the State, without the consent of the governor of the State.529 The descript ion of the first t hree amendm ents to th e Bill of
Right s was terse, consisting of only a paragraph for each amendment. The Second Amendment was explained: This pr ovision is a limita tion only on th e power of Congress,
and not upon the power of the Stat es; and, unless restrained by their own constitutions, State legislatures may enact statu tes to control and regulate all organiza tions, drilling and parading of military bodies and associations, except those which are authorized by the m ilitia laws of the United States.530 The book concluded with another appendix written by
Gh er ardi Da vis , wh ich consist ed of the t ext of the Constitution, with string citation footnotes provided for each constitutional provision. For the Second Amendment,531 the editor cited Presser,532 Spies v. Illinois,533 and Eilenbecker v. Pl ym outh County.534 Spies was the prosecut ion growing out of the Hayma rket Riot , and is discussed below.535 Th e on ly t hin g t he cou rt said about the Second Amendment was: “[t]hat the first ten Articles of Amendment were not intended to limit the powers of the state governments in respect t o their own people, but to operate on the Nat ional Governmen t alone, was decided more than a half cen tury a go, a nd t hat decision has been steadily adhered to
529. Id. at 625. 530. Id. at 645 (cit in g P re ss er v. I llin ois, 11 6 U .S. 252 (188 6)). 531. See id. at 708 & n .1. 532. Presser v. I llin ois, 11 6 U .S. 252 (188 6). 533. 123 U. S. 1 31 (1 887 ). 534. 134 U. S. 3 1 (18 90). 535. See infra text a ccompanying note 587. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
1359] SECOND AMENDME NT IN THE 19TH CENTURY1499 since.”536 The Court also cited Presser, Cruikshank, and other cases for the propos it ion .537 Similar ly, Eilenbecker held that the Fourteenth Amendment does not apply the Fifth, Sixth, and Eighth Amendments against th e stat es. The case’s only reference to the Second Amendment is the following statement: “the fir st eight articles of the amen dm en ts t o the Const it ution have reference to powers exercised by th e government of the United States and not to those of the Sta tes.”538 Again, th e Court cited Cruikshank, Presser, and other cases.
14. Henry Campbell Black Henry Cam pbell Black is known toda y by almost every Amer ica n law student and lawyer as the author of Black’s Law Dictionary. However, he a lso authored trea tises on a va riet y of other subjects,539 including th e Handbook of American Constitutional Law.540 In th is “celebrated su mm ar y of constitutional law,”541 he wrote:
RIGHT TO BEAR ARMS
203. The secon d am en dm en t t o th e feder al con stitu tion , as well as the constitutions of many of the states, guaranty to the people the right to bear a rms. This is a nat ura l righ t, not created or granted by the constitutions. The second amendment means no more than that it sh all not b e d en ied or in frin ged by con gr ess or th e other
536. S pies , 123 U.S. at 166. 537. See id. 538. Eilenbecker, 134 U.S. at 34. 539. For example, he took over Pomer oy’s wat er la w tr eat ise aft er P omer oy’s death. See J OHN NORTON POMEROY, A TREATISE ON THE LAW OF WATER RIGHTS: BEING A REVISED AND ENLARGED EDITION OF “P OMEROY ON RIPARIAN RIGHTS,” WITH SEVE RAL ADDIT ION AL CHAPTERS BY HEN RY CAMPBELL BLACK (189 3); see also HENRY CAMPBELL BLACK, A TREATISE ON THE LAW OF INCOME TAXATION UNDER FEDERAL AND STATE LAWS (191 3); H EN RY CAMPBELL BLACK, A TREATISE ON THE LAW OF JUDGEME NTS (2d ed. 190 2); H EN RY CAMPBELL BLACK, A TREATISE ON THE RESCISSION OF CONTRACTS AND CANCELLATION OF WRITTEN INSTRUMENTS (2d ed. 192 9); H EN RY CAMPBELL BLACK, HANDBOOK ON THE LAW OF JUDICIAL PRECEDENTS OR THE SCIENCE OF CASE LAW (191 2); H ENRY CAMPBELL BLACK, THE RELATION OF THE EXECUTIVE POWER TO LEGISLATION (191 9). Start ing in 1917, Campbell also edited The C ons tit ut ion al R eview , a law review dealing with constitutional issues. 540. HENRY CAMPBELL BLACK, HANDBOOK OF AMERICAN CONSTITUTIONAL LAW (189 5). There was a s econd edition in 1897, and a thir d print ing in 1910. 541. William D. Bader, S om e Thou gh ts on B lack st one, Preced ent, and Originalism, 19 VT. L. REV. 5, 1 3 (19 94). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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d epartments of the national government. The amendment is no restriction upon the power of the several states.542
As authority, Black cited Cruikshank.543 He continued: “Hence, unless restrained by their own constitutions, the state legislatures may enact laws to control and regulate all m ilitary organizations, and the drilling and par ading of military bodies and associations, except those which are authorized by the milit ia laws or the laws of the United States.”544 Black cited Presser and a Massachusetts case.545 As to the type of arms protected, the arms are those of a soldier. They do not include dirks, bowie knives,
and su ch ot he r w ea pon s a s a re us ed in brawls, figh ts , an d riots. The citizen ha s at all times th e right to keep arm s of modern warfare, if with ou t d anger to ot her s, . . . but n ot s uch weapons as are only intended to be the instruments of private feuds or vengeance.546
He cit ed som e of the st anda rd s tate ca ses for this pr opos it ion .547 Lastly, he a ss er ted that pr ohibition s on carrying concealed weapons ar e not un constitu tional.548 Bla ck thus provides another individual rights view, along with the standard exceptions from the lat e nin eteenth cent ur y.
15. George S. Boutwell
542. BLACK, supra note 540, at 462-63. 543. See id. at 463 n .35. 544. Id. at 463. 545. See Com mo nw ea lt h v . Mu rp hy , 44 N. E. 138 (Ma ss . 18 96). 546. BLACK, supra note 540, at 463. 547. See id. at 463 n.37 (citin g English v. State, 35 Tex. 473 (1872); Fife v. State, 31 Ark . 45 5 (18 76); S ta te v. Wo rk ma n, 14 S .E . 9 (W . Va . 18 91)). 548. See id. at 463 (cit in g H ai le v . St at e, 3 8 Ar k. 564 (188 2) (u pholding a law allowing th e ca rr yin g of we ap ons in pu blic on ly w he n ca rr ied ope nl y in th e h an d); State v. Wilforth, 74 Mo. 528 (1882) (holding th at a concealed we ap ons law wa s n ot unconstitutional becau se it s till allowed open car ryin g for pers onal de fense); Sta te v. Speller, 86 N .C. 69 7 (188 2) (up hold ing a con cea led wea pon s law based on express authority to restr ict concealed ca rr y in st at e constit ut ion; notin g that t he law does not prevent a person from carrying weapons openly for personal pr otection); Wrigh t v. Commonwealth , 77 Pa. 470 (1875) (holding that the st ate constitutional right to arms was not infringed by imposition of court costs on a defendan t who carried a concealed weap on wit h m al iciou s in te nt )). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001
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“[A] stur dy Pur ita n a nd politician of sterling vir tu e,”549 attorney George S . Bou twell was t he “arch-radical” of ra dical Repu blicans du rin g t he Civil Wa r and Recon st ruction .550 He was elected to the Massachusetts state legislature as a Democrat, and then ele cted Gove rnor of Massachusetts in 1851 by a coalit ion of Democrats and Free Soilers. But his vehement opp osition to slavery im pelled him to becom e on e of t he founders of the Massachusetts Republican party. During the Civil War, Boutwell served as America’s first Commissioner of Internal Revenue, and then in th e United States House of Represen tatives from 1863 to 1869. He was one of the Ra dical Re pu blican lea ders in the H ouse, ser vin g on the Joint Committ ee on Reconstr uction, an d pla ying a ma jor role in the shaping and passage of the Four teenth and Fifteenth Amendments. Boutwell was exceeded by no one in Congress in his determinat ion to use federal power t o end slavery an d promote civil rights for the freedmen.551 He was far ah ead of his time, proposing an amendment to the Civil Rights Act of 1866 that would have required public schools to be integrated.552 President Gr ant app ointed Bou twell Secr et ary of the Treasury, a post he le ft in 1873 wh en he was elect ed to the Senate. He left th e Senate in 1877 when President Hayes appointed him to recodify t he statutes of th e Un ited States. He produced th e Revised Stat ut es of the Un ited Stat es in 1878. Thereafter, until h is death in 1905, h e practiced in ter nation al law in Massa chusett s. Boutwell rema ined active in public affairs, closing his career as President of the Anti-Imperialist League and playing a leading role in the fight against the new Amer ican foreign policy created by President McKinley.553
549. Ja mes For d Rhodes, Ulysses S. Gran t, E igh teen th Pres id ent , 9 AMERICA 69, 75 (1868), in AMERICAN FREEDOM LIBRARY: TODAY’S ISSUES, TRADITIONAL VALUES (CD ROM ed. 1997 ). 550. John Ha rr ison, Reconstructing the Privileges or Imm unities Clause, 101 YALE L.J . 1385, 1440 (199 2). 551. See THO MAS H. BROWN, GEORGE SEWALL BOUTWELL: HUMAN RIGHTS ADVOCATE 66 (1 989 ); Micha el W. McConn ell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 , 18 3 (19 97). 552. See Micha el W. McConn ell, Originalism an d the Desegr egat ion Decisi ons , 81 VA. L. REV. 947 , 10 71-7 2 (19 95). 553. S ee, e.g., GEORGE S. BOUTWELL, THE WAR OF DESPOTISM IN THE PHILIPPINE ISLANDS (189 9); Hen ry G. P ear son, George Sewall Boutwell, in DICT. AM. BIO., supra note 90; George S. Bou twell, Imperialism and Anti-Imperialism, Address at Con fer en ce of Anti-Im per ialist s, Bost on (May 16, 1899), available online 1502 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 George Boutwell’s The Constitution of the United S tates at the End of the First Century appea red in 1895.554 Boutwell’s chapter on “The Right of the People to Keep and Bear Arms” informed the rea der that “th e on ly ca se of im por tance” wh ich has arisen under the Second Amendment was Presser.555 After summarizing the case background and pointing out that the Illinois militia statute enrolled able-bodied males between the ages of eighteen an d forty-five in the sta te m ilitia, Boutwell noted that the claim was made that the Illinois statute against armed para des without a per mit (exceptin g para des by th e state militia) was challenged under the Second Amendment. But the Supr eme Court explained “that the Second Amendment was a guarantee that nothing should be done by th e United States in restraint of the right of the people to keep and bear arms, but that the amendment could not be app ea led to as limit ing the power of the Sta tes.”556 Boutwell concluded with Presser’s caveat that state gun controls could not disable citizens from performing their federal militia dut ies.557 16. J am es S chouler Professor Jam es Schouler essent ially foun ded th e legal subject of domestic relat ions wit h h is 1870 trea tise on the t opic, a tr eat ise wh ich went through six pr intings over the n ext half- century.558 He also wrote treat ises on wills, bailm ents, an d property,559 and authored a major history of the United ~fjzwick/ailtexts/gsbimper .htm l>. 554. GEORGE BOUTWELL, THE CONSTITUTION OF THE UNITED STATES AT THE END OF THE FIRST CENTURY (198 7) (18 95). 555. Id. at 358 556. Id. at 359. 557. See id. at 359-60. 558. See JAMES SCHOULER, A TREATISE ON DOMESTIC RELATIONS (187 0); J AMES SCHOULER, A TREATISE ON THE LAW OF HUSBAND AND WIFE (188 2); J AMES SCHOULER, A TREATISE ON THE LAW OF MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS (6th ed. 192 1); see also Micha el Gr ossber g, Balancing Acts: Crisis, Change, and Continuity in Am erican Family L aw, 1890-1990, 28 IND. L. REV. 273, 275 (1995) (noting th at “family law ha d been scatter ed abou t t he lega l land scape” un til th e “first major com pil at ion ” by Sch ouler ). 559. See JAMES SCHOULER, A TREATISE ON THE LAW OF BAILMENTS (3d e d. 1 897 ); J AMES SCHOULER, A TREATISE ON THE LAW OF PERSONAL PROPERTY (2d. ed. 1887); JAMES SCHOULER, LAW OF WILLS, EXECUTORS AND ADMINISTRATORS (6t h e d. 1 921 ). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1503 States—the first to cover the per iod between the Revolution and the Civil War in a scholarly manner.560 In 1897, Professor Ja mes Schouler’s series of lectures to graduate student s at J ohns Hopkins Un iversity wa s pu blished as Constitutional S tudies: State and Federal.561 Describing th e first eight amen dm en ts of t he Bill of Rights, Sch ouler wrote that th ey “touch the in dividual a nd civil right s” and “apply exclusively to Feder al jurisdiction an d pr ocedur e.”562 For the Second Amendment and the Fourth Amendment, Schouler’s text did nothing more than quote the amendment in full, offering a sparse commentary in a footnote.563 The Second Amendment footnote stated: “In the En glish Bill of Rights of 1688 was a similar pr ovision as to Protestants, whom the King h ad d isba nded while trea tin g Rom an Ca tholics with favor.”564 The footnote also referred the reader to “State maxims corresponding,” in an earlier part of the treatise, dealing with the Virginia Declarat ion of Rights of 1776.565 Explaining the Congr essional m ilitia power s, Sch ouler wrote that St ates “feared that the U nion wou ld weaken ea ch loca l militia for st rength ening the regular army; and hence the reserva tion here asser ted [Article I’s reser vat ion of militia training, and the appointment of militia officers to the states], as well as the jealous amendment s of 1789.”566 Th e “jea lou s amendments” are cited in the footnotes as “Amendments II. and III.”567 560. See JAMES SCHOULER, HISTORY OF PEOPLE OF THE UNITED STATES OF AMERICA: UNDER THE CONSTITUTION (Dodd, Mead & Co. rev. ed. 1970) (1st pub. 1880- 1913, 7 vols.); Joh n H . Lat an e, J am es S chou ler, in DICT. AM. BIO., supra note 90. 561. J AMES SCHOULER, CONSTITUTIONAL STUDIES: STATE AND FED ERAL (Da Capo Press ed . 19 71) (1 897 ). 562. Id. at 192. 563. See id. at 192-93. 564. Id. at 192-93, n.6. 565. The Virginia section of the tr eatise qu oted th e Virginia Declar at ion: “A well- regulat ed mi lit ia i s t he na tu ra l an d sa fe de fen ce of a fr ee s ta te ; standing armies in time of peace are dangerous to liber ty; an d in a ll cases t he m ilitar y shou ld be st rictly subordinate to th e civil power .” Id. at 33. Schouler’s footnote add ed: “See sta ndin g army grieva nce s u nd er th e Kin g recit ed in t he Decla ra tion of Independence, also English Bill of Ri ghts (Righ ts 6 a nd 7). De pen den ce u pon a militia is more str ongly assert ed th an hit her to.” Id. at 33 n .5. 566. Id. at 145-46. 567. Id. at 146 n .1. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1504 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 Like many other late nineteenth century commentators, Schouler took care to empha size that laws restr icting concealed weapons could pass constitut ional muster . Describing changes in stat e const itu tions in th e middle of the nin eteenth cent ur y, he wrote: “To the time-honored right of free people to bear arms568 was now ann exed, . . . th e qualification th at carrying concealed weapons was not to be included.”569 State laws restricting th e car ryin g of concealed weapons a pply, obviously, only to individuals, and not to state governments or state milit ias. If concealed weapons laws are an exception to the right to keep and bear a rm s, then t he righ t is necessarily a n individual r ight . 17. Home schooling The “Home Law School Series” of books reminds us of an era when gradua tion from a law school accredited by the Amer ica n Bar Associa tion wa s n ot necess ary for adm ission to the bar. The Constitutional Law book in the series combined the Second and Third Amendments into a single paragraph.570 The pr ovisions of Articles 2 and 3 were intended to protect the peop le from arbitrary action on the part of gover nm en t sim ilar to th at of the E ng lish government in the past. The right of the peop le to bear arm s was a practical recognition of their right to demand with force that the government as constitu ted obser ve Constitutional restraints. The right is general, and extends to all citizen s, wh ethe r enr olled in th e m ilitia or not. But it is held tha t it does not authorize the carrying of weapons tha t are concea led, a nd wh ich are chiefly u sefu l in in divid ua l encounters.—Cooley, Principles, 3d ed., 299.571 568. A footnote here referred the reader t o the Second Amendment discussion. See id. at 226 n .3. 569. Id. at 226. His footn ote cited the 1850 Ken tu cky Cons tit ut ion. See id. at 226 n.4. That Constitution included a right to bear ar ms p rovision t ha t spe cifically excepted concealed carr y. See supra note 190. This pr ovisi on w as a r esp ons e t o an 1821 Kent ucky cour t decision holding a law a gainst concea led car ry t o be in viola tion of the sta te constitutional right to keep and bear ar ms. See supra note 152 and accompanying text. 570. See CHARLES E. CHAD MAN , CONSTITUTIONAL LAW, FEDERAL AND STATE: BEING A CLEAR AND COMPLETE ANALYSIS OF THE CONSTITUTION, TOGE TH ER W ITH A SUMMARY OF THE LEADING DECISIONS AND BASIC PRINCIPLES WHICH GO TO MAKE UP THE FUN DAME NTAL LAW OF THE STATE AND NATION (189 9). 571. Id. at 159. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1505 The paragraph is a rather concise su mmary of the view of the nin et eenth cen tury com men tators: t he r igh t belon gs to all Americans, not just militia m embers. The purpose of the right is to resist unconstitutional government. The right to bear arms does not extend to the concealed carrying of guns, or to weapon s un suita ble for resistin g tyr an ny. 18. Civics manuals for youth While legal t ext s fr om th e nin eteent h centu ry are foun d in most academic law libraries, books which discuss legal matters for a popular audience are often not. Nor are such books often listed in legal in dexes . Th us, the fou r pop ula r book s d iscussed in this section ar e likely not the only books from the nineteenth century wh ich were writ ten by a nd for non-lawyers about legal aspects of Amer ican governmen t, in clu ding t he Secon d Amendment. Bu t the books do offer at lea st som e in sigh t of how mater ia ls for seconda ry schools and colleges trea ted the Secon d Amendment. Caspar Thomas Hopkin s’ 1872 book A Manual of American Ideas wa s w rit ten to in st ruct you th in pr in ciples of Amer ica n government.572 Hopkins listed “The right to keep and bear arm s” as among “the rights which are secured to every individual by th e Con stitutions and laws of th e Un ited States.”573 In a chapter devoted to a denunciation of standing armies, Hopkins explained that one method by which standing armies are kept in check is that “[e]very individual throughout the nation has the Constitutional right to keep and bear arms. This accustoms t he people t o their use. (Th is righ t is not allowed by governments that are afraid of the people .)”574 The state-based militia system was described separately, as a distinct check on standing armies.575 The Reverend Joseph Alden’s Alden’s Citizen’s Manual: A Text-Book on Govern m ent for Com m on Schools was simpler than th e Hopk ins book in its appr oach to many issues. Alden 572. See CASPAR THOMAS HOPKINS, A MANUAL OF AMERICAN IDEAS (187 2), available onl in e 1506 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 quoted the full text of the Second Amendment in answer to the qu estion “Can the gover nmen t disa rm the people?”576 Isra el Ward Andrews’ 1874 textbook Manual of the Con stitution of the United States had the same title as Timothy Farrar’s 1867 legal treatise, although it is impossible to know if Andrews knew of the Farrar book.577 Andrews was a highly- regar ded professor a t Mar ietta College in Ohio, and his Manual was used for many years as a college t ext book .578 Andrews gave a milit ia -ba sed exposit ion of th e Secon d Am en dm en t: “The milit ia ar e th e citizen soldiery of the count ry, as distinguished from the standing, or regular , arm y. The militia syst em has been allowed to fall int o par tia l decay, sh owing tha t t he people have lit tle fe ar of need t o defen d t hem selves by for ce of ar ms against th eir government .”579 Andrews’ Manual is not inconsistent with Henigan’s theory,580 since Andrews does not sp ecify wh o the m ilitia are, or how t hey a re a rmed. Nor are Andrews’ two sent ences inconsisten t wit h t he m ain stream of nineteenth century thought. Calvin Townsend’s 1868 Analysis of Civ il Govern m ent (written as a t extbook usable for pr ima ry, seconda ry, a nd higher education ) also offer ed a militia -cen tric explanation of the Second Amendment: The righ t of t he p eop le t o ke ep and b ea r a rm s, w ith wh ich the General Government is her ein pr ohibited from inter fering, refers to an organization of the militia of the States. There have been fear s exp re sse d, tha t t he liber ty t he peop le might be destroyed by the perverted power of a form ida ble sta nd ing army. But h ere is the check t o an y su ch d an ger . Th e m ilitia , that might be called out anytime on a month’s notice, w ould outn um ber , tw en ty to on e, a ny st an din g a rm y in tim e of peace 576. J OSEPH ALDEN, ALDEN’S CITIZEN’S MANU AL: A TEXT-BOOK ON GOVERNMENT, FOR COMMON SCHOOLS (New York , She ldon & Co. 186 9), available online 1359] SECOND AMENDME NT IN THE 19TH CENTURY1507 that will ever be t olerat ed in Un ited Sta tes. La rge st an din g arm ies m ight in dee d be da ng er ous in a repu blican government, but for a much stronger force distributed throughout th e ran ks of the people.581 But while H eniga n sees t he la uding of the m ilitia as inconsistent with a n in dividu al r ight, the nineteenth century did not. Townsend’s book included deta iled out lines showing the order in wh ich individua l topics sh ould be presen ted. Un der the genera l hea ding of “Freedom” was the subheading “Civil.” The individual topics listed under civil fr eedom were fr eedom of speech, freedom of the press, “[t]he right of the people peaceably to ass em ble and p et it ion the government for redress of grievances” and “[t]he right of the people to keep and bear arms.”582 Townsend listed the right to arms as among the rights of an individual t o civil freedom , rather than among the powers of state governments. 19. John Randolph Tucker The st ory of nineteenth century legal treatises and the Second Amendment ends where it began, with the Tucker family. John Randolph Tucker was the son of the Henry St. George Tu cke r (the t rea tise writ er and Vir gin ia judge).583 John Randolph Tucker served as Att orney Genera l of Virginia, United St ates Repr esen tative, a nd P residen t of the Am er ica n Bar Ass ocia tion .584 He was a Democratic leader in Congress a nd an ardent defender of the Constitut ion and its limits on central power.585 He also taugh t la w at Wa shingt on & Lee, bearin g as pr ofound an influence on the growth and success of that school as Thom as Cooley did at t he University of Michigan .586 As a private attorney, his most famous trial was the Haymar ket case, wh ich grew out of an 1886 confrontation 581. CALVIN TOWNSEND, ANALYSIS OF CIVIL GOVERNMEN T 224 (186 8). 582. Id. at 91. 583. See 1 J OHN RANDOLPH TUCKER, THE CONSTITUTION OF THE UNITED STATES, at v (Fred B. Rothm an & Co. 1981) (1899). For a discussion of Hen ry St . George Tucker, see supra notes 136-49 an d accompa nyin g text . 584. See Ha lbrook, supra note 19, at 33. 585. “It is un fashionable, I know to stickle for the Constitution,” he once said. 49 CONG. REC., 1st Ses s., a pp. at 59 (18 86); see William G. Bea n, John R andolph Tucker, in DICT. AM. BIO., supra note 90. 586. See Car rin gton , supra note 19, at 333. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1508 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 between strikers and a violent police force.587 Tucker argued to the Supreme Court that the Privileges and Immunities Clause of th e Fourt eenth Amendment ma de all of the Bill of Rights (including, of course, the Second Amendment ) enforceable against the states, and therefore, the Haymarket defendants were entitled to a rever sa l of t heir convict ion s, ba sed on the violation of the rights against self-incrimina tion an d on their righ t to an impartial jury. Tucker poin ted to Con gr essional debates on the Fourteenth Amendment, argued that Cruikshank supported his position, and suggested that Presser mer ely stood for the proposition that armed pa rades could be prohibited. The Suprem e Court, however, man aged to sidestep the wh ole iss ue, b y poin tin g ou t that the object ion s r aised by Tucker in t he Supreme Cour t h ad not been ra ised by th e Haymar ket defendan ts’ attorney at t rial. Tucker’s argumen ts concerning the Fourteenth Amendment were adopted in 1892 by J ustices Field , Ha rla n, a nd Bra dley.588 John Randolph Tu cker contin ued tea chin g a t Wa sh in gt on & Lee throughout his 1876-88 ten ure in Con gr ess. Up on retirement from Con gress h e r esumed full-time law teaching and began writing a treatise on constitut ional law. Elected President of the American Bar Association in 1892, Tucker was not able to see h is trea tise t hrough to pu blication before his death in 1897. H is son , H en ry St. Ge orge Tucker II (also a law professor at Washington & Lee, and a future Congressman) brought th e ma nu script t o completion, with out ma king editorial changes, in 1899.589 John Randolph Tucker explained the Second Amendment: This prohibition indicates that th e security of liberty against the tyrannical tendency of government is only to be foun d in the right of the people to keep and bear a rms in resisting the wrongs of government.590 The case of Presser v. 587. See Spies v. Illinois, 123 U.S . 131 (1 887 ). At a meeting called to protest the killing of strikers by police, someone threw a bomb into a gr oup of policemen. 588. See O’Neil v. Vermont, 144 U.S. 323, 361 (1892) (Field, J., dissenting, joined by Ha rla n, J ., and Bra dley, J .) (“[A]fter much r eflection I t hin k th e definit ion given at one tim e be fore th is cou rt by a dis tin guish ed a dvocate—Mr. John Randolph Tucker, of Virg ini a—is corr ect .”); see also Twining v. New Jersey, 211 U.S. 78, 114-27 (1908) (Harlan, J., disse nt ing); Maxw ell v. Dow, 176 U .S. 581, 605-17 (1900) (Ha rla n, J ., dis se nt in g). 589. See 1 JOHN RANDOLPH TUCKER, supra note 583, at vi. 590. The Tuckers’ footnote cited Federalist Nos. 28 and 46. In Federalist 46, D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1509 Illinois arose ou t of an act p ass ed by th e S ta te of Illin ois prohibiting all bodies of men other th an th e regu lar ly organized volunt eer m ilitia of the sta te from associatin g an d dr illing as such. The Suprem e Court held th at it d id n ot conflict with this amendment, beca us e the am en dm en t is only a limitation of power on Congress, not on the States.591 Thus, Tucker followed standard nineteenth century thought in seeing the Second Amendment as design ed to facilitat e popular resistance to tyranny. He likewise followed the standard post- Presser view t hat the Secon d Am en dm en t wa s n ot directly applicable to the states. C. Law Review Articles So far as the indexes reveal, few ninet eenth centur y law reviews discussed the Second Amendment. For example, the Albany Law J ournal carried a two-part article about the New York militia law, which did not mention the Second Amendment.592 Mad ison rejoiced in “the advantage of being armed, which the Americans possess over the people of almost every ot her na tion.” A nat ional st an ding ar my could not, as a practical matter, amount to m ore t ha n 30,0 00 me n, Ma dison said . “To the se would be oppos ed a mi lit ia a mou nt ing to near half a m illion of citizens wit h a rm s in t heir hands . . . . It may well be doubted whether a m ilitia thus circums cribed could ever be conque re d by s uch a p rop ort ion of regular troops.” He predicted that t he Eu ropean governments, who were “afraid to trust the pe ople with ar ms,” would be “speed ily overturned” if ever opposed by a p opular m ilitia directed by locally-controlled government s and officers. In Federalist No. 28, Hamilton out lined one scenario of resistance to [t]he enterpr ises of ambitious rulers in the nat ional councils. If the federal army should be able t o quell t he r esist an ce of one Sta te, t he distant States would have it in their power to make head with fresh forces. The a dvan ta ges obtained in one place must be abandoned to subdue the opposit ion in oth er s; a nd th e m ome nt th e pa rt wh ich ha d been reduced to submission was left to itself, its efforts would be renewed, and its r esistance revive. 591. 2 J OHN RANDOLPH TUCKER, THE CONSTITUTION OF THE UNITED STATES 671- 72, (He nr y St . Geor ge Tuck er ed., 189 9); see also id. at 853 (citing Pres ser for the pr oposi tion th at un der sect ion 5 of th e F ourteenth Amendment, Congress “can take no action . . . to protect a citizen in his rights as a citizen of a Sta te”; citing Cruikshank for the proposit ion th at federa l constit ut ional righ ts belon g to a per son in his capacity as a citizen of the United St ates, an d tha t section 5 of the Fourteen th Amendment “does n ot li mi t t he police powe rs of th e St at es, nor affect the State organism or it s fu nct ion s”). 592. See William M. Ivin s, The S tatus of the Militia in Tim e of Riot—Part I, 18 ALB. L.J . 85 (1878); William M. Ivin s, Not e, Th e S tat us of th e Milit ia i n T im e of D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1510 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 One notable exception, however, appeared in the Kansas Law Journal. Published in 1885, this ar ticle rema ins to this day one of the most incendiary discussions of militias ever to appear in a law journal.593 The ar ticle opened with sentiment s that ar e commonpla ce in t he milit ia m ovement of the 1990s, but rarely seen in la w jou rnals. “Devoted to the const itu tion,” began th e epigr aph qu oting Wisconsin Suprem e Court Chief Justice Ryan, “we invoke the vengeance of God upon all who raise their sacrilegious hands against it.” The author continued by quot ing Tocqueville’s st at ement th at un less democra cy is guarded, “it merges into despotism.”594 The author maint ained that Kansas was in fact drifting in to despotism, as demonstrated by the new sta te militia law.595 This new Kan sas militia law ga ve local officials the authority to call out the militia, and the author feared that the law would be invoked to suppr ess peaceful assemblies of polit ica l dissidents.596 Even worse, militia commanders themselves were given unilateral authority to take action.597 The author theor ized t hat this wa s p articu la rly d anger ous because railroad companies could make th eir employees milit ia captains, an d then ha ve th e milit ia available as a private army.598 This new law was said to violate the Kansas Con st it ution , wh ich ga ve on ly t he Gover nor the authority to call out th e milit ia in circumstances far more limited than the militia law authorized.599 A strike in the town of Atchison illust rated the danger of the new state militia law. Although th e st rik e ended pea cefully, it was learned that bot h the Mayor and S her iff of Atchison wrote to the Kansa s G over nor du rin g t he conflict, falsely claiming that the town was in the possession of a violent mob. In th eir letter s, they a sk ed that the Gover nor call ou t the milit ia to break the strike and su ppress the mob.600 If the Riot—Part II, 18 ALB. L.J . 107 (187 8). 593. See G.C. Clem ens , The Militia Law, 1 KAN. L.J . 261 (1885). 594. Id. 595. See id. at 261-62. 596. See id. at 263. 597. See id. 598. See id. at 264. 599. See id. at 265. 600. See id. at 262. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1511 Mayor or Sheriff had possessed unilat era l authority to call out the militia, they “would h ave cr im son ed the streets of At chison with the blood of curious m en, women an d children, a nd provoked an insur rection th at would have made tha t city a bloody field of battle.”601 Moreover, continued th e ar ticle, the m ilitia created by the new la w was a select militia in wh ich only a sm all class of citizens en lis ted; in other words, “a m ilita ry class t o ter rorize th e commun ity.”602 In contrast: The const itu tion al m ilitia is a thing into which a m an grows by reaching his majority—he does not become a m ember by voluntary enlistment. The intent ion was tha t every able- bodied citizen should have a gun in his hands and know how to use it; th en n on e n ee d fe ar his ne ighbor nor a d esp ot; wh ile this law pu ts arms into the ha nds of a class, and leaves the average citizen at th eir m er cy. Th is law cr ea tes a stan din g army in violat ion of the Bill of Righ ts. Wh at elem en t d oes it la ck? An d w hile “th e p eop le have the r igh t t o bea r a rm s for their defense and security,” “standing arm ies, in time of peace, ar e d an ger ous t o libert y, a nd shall not be tolerated.” ([Kansas] Bill of R igh ts , sec. 4 .)603 The article conclu ded by u rgin g “som e cou rageou s cou nty attorney” to “wrap the stars and stripes about his hand and get hold of this r eptile before it hu rts somebody.”604 Although the subject of the a rticle wa s t he Kansa s S tate Const it ution , n ot the Second Amendment, the ar ticle’s sentim ent s are n otable because it is one of only thr ee ninet eenth centur y American law review ar ticles t ha t a ddr essed the m ilitia. The only nineteenth century law journal article to address the Second Amendment directly is a casenote on Presser, in the Central Law J ournal.605 The note is a straightforward summary of Presser, treating the case as affirming state authority over conduct within its boundaries. The author concluded that “[i]t will no dou bt be n ews t o most people , not mem bers of t he legal profession, and to many who are,” that the Second Amendment 601. Id. 602. Id. 603. Id. at 265-66. 604. Id. at 266. 605. See Note , Constitutional Law— Militia—R ight to Bear Arms, 22 CENT. L.J . 411 (188 6). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1512 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 limit s only Congress, and provides no protection against state gun laws.606 D. Sum mary of the Late Nineteenth Century Comm entators Some importan t lessons ma y be glean ed from th e post-Civil War tr eatises, comm enta ries, and law r eview articles. All of them treat the Second Amendment as an individual right. Except for Cooley, none are mentioned anywhere in the anti- individua l liter at ur e. Some of th em lim it th e ind ividual r ight to the possession of guns for resisting tyra nny, while others explicitly affirm an individual right to own and carry guns for personal protection. The treatises also list various exceptions to the right to arms, which were also expressed in Supreme Court cases: the righ t limits only the federa l government, not the states (Presser607 and perhaps Cruikshank608); the r igh t is not infringed by a ban on armed pa rades on public property (Presser);609 and th e right is not in frin ged by a pr ohibition on carryin g concea led weapon s (Robertson v. Baldwin).610 VII. FIN-DE-S IÈCLE AND BEYOND A. The Supreme Court The Supreme Cour t decided t wo cases involving t he Second Amendment in the 1890s. 1. Miller v. Texas Franklin P. Miller was t he white owner of a sma ll store in Dallas wh o fell in love wit h a bla ck wom an.611 Because the period just before and after the turn of the century was the 606. Id. at 412-13. 607. Presser v. I llin ois, 11 6 U .S. 252 (188 6). 608. United St at es v. Cru ik sh an k, 92 U .S. 542 (187 6). 609. Pres ser, 116 U.S. 252. 610. 165 U.S. 275 (1897). For a discussion of the case, see infra text accompanying notes 623-25. 611. The dis cus sion of th e fa cts ab out Mi ller is based on the on-g oin g r esea rch of Stephen Halbrook, including t he m at eria l in STEPHEN P. HALBROOK, FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS, 1866-1876, 184 -85 (199 8). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1513 apex of the horrible Jim Crow era,612 a white man associating with a bla ck wom an often spa rked violence in the South. The city police in Da llas hea rd th at Miller was car rying a handgun without a license. The law of t he time did not require t hat a warrant be obt ain ed in order to arrest a person for unlicensed gun carryin g. A gr oup of p olice officer s a ss em ble d in a loca l tavern, en joyed a good sess ion of whiskey drinking, headed over to Miller’s store, snu ck in a side alley, and then burst into Miller’s store with guns dr awn.613 The eviden ce is conflicting as to whether Miller th ought that the men breaking in with drawn revolvers wer e crimina ls or governmen t officia ls. Th e evid en ce is also conflict in g a bou t who fired first. In a ny case, Mr. Miller got off the first good shot, killing one of the intruders. But Miller was outnumbered and captured. The episode infuriat ed t he people of Dallas. Newspapers raged that a man who loved a “greasy negress” had sh ot a police officer. A lynch mob attempt ed to extricate Mr. Miller from jail and hang him on the spot, but they did not succeed. Mr. Miller was able to get a trial before being hanged. At the trial, where defendant Miller was charged with murder, t he prosecutor told the jury that Miller ha d been illegally carrying a gun. Miller was convicted of murderin g a police officer. Seek ing to st ave off exe cution , Miller filed various appeals (all of which were rejected), finally appealin g to the United States Supreme Court. Miller’s appeal to the Supreme Court claimed that his Second, Fourth, Fifth, and Fourteenth Amendment rights had been violated.614 In particular, Miller argued that (1) the Texas statute against concealed carry was invalid; (2) the statute allowin g arr est with out a wa rr an t wa s also invalid; and (3) his alleged violation of the carry law sh ould not ha ve been used as an argument by the prosecutor. The Cou rt disa gr eed a nd wrote that “the law of the State [wh ich forbade the carrying of dangerous weapons on the person did not] abridge the privileges or im munit ies of citizens 612. “J im Crow” was t he n am e of a plan ta tion song; th e ter m wa s app lied to the Southern sys te m of le gal ly-m an da te d r acia l se grega tion . 613. The moder n t erm for th is is “dyna mic en tr y.” 614. See Mil ler v. T exa s, 1 53 U .S. 535 (189 4). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1514 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 of the United States.”615 Further, “the restrictions of these amendments [Second and Fourth] operate only upon the Feder al power.”616 At first glan ce, Miller would seem to reiterate what was well est ablished by Cruikshank and Presser. However, the Court muddied th e waters by stating that “[i]f the Fourteenth Amendment limit ed t he power of the Stat es a s to such righ ts, as perta ining to the citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.”617 The neglect to raise the Fourteenth Amendment at trial was also fatal to Miller, and he was executed by the State of Texas. If the problem with Mr. Miller’s Fourteenth Amendment argument was th at th e ar gum ent was not ra ised a t t he t ria l court, then the Fourteenth Amendment issue must logically be one which has not been finally settled. The Miller court had said that the Second, Fourth, and Fifth Amendments had no place in state courts, but th is language could be read as stating only that the Amendments are not directly app lica ble to the states. And, in fact, t he Court wa s p reparin g t o move a wa y fr om earlier holdings that the Fourteenth Amendment did not apply the Bill of Rights to the st at es. Th ree years after Miller, the Cou rt held the Fifth Amendment (one of the amendments at issue in Miller) enforceable aga inst the states.618 Was Miller one of th e first hints th at th e Court wa s going to sta rt ta king the Fourteenth Amendment more seriously after decades of malign neglect? Halbrook, almost alone among twentieth century commentators, character izes t he n onin corporation language of Cruikshank and Presser as dict a.619 Yet the nineteenth century commentators who mentioned Presser and Cruikshank, as well as the Court in several cases, habit ually cit ed those cases for non-in corporation .620 On the other hand, not only did Miller leave th e door open a crack, but the 1891 West Virginia 615. Id. at 539. 616. Id. at 538. 617. Id. 618. See Chica go, Bur lingt on & Qu incy R.R. Co. v. Ch icago, 166 U. S. 2 26 (1 897 ). 619. See Ha lbrook, Personal Security, supra note 1, at 343-44. 620. See supra notes 498-510, 522-48, 583-91 an d accompa nyin g text . D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1515 Supreme Court case Workman applied the Second Amendm ent directly against the state.621 John Randolph Tucker, a very highly rega rded lawyer, app aren tly felt that Preseser and Cruikshank left enough room for him to argue to the Supreme Cou rt—the year after Presser was decided—tha t t he whole Bill of Rights was enforceable against the states.622 Further, in the years between Cruikshank and Presser, a number of commentators, in clu ding Th omas Cooley, viewed the Secon d Amendment as enforceable against the states. If Miller leaves us unclear about the Fourteenth Amendment, its Second Amendment implications are straightforward. Mr. Miller was a privat e store owner and never cla im ed to be part of the Texas militia. Unlike t he defendant in Presser, Miller was not even acting as part of an un official private milit ia. Un der the a nti-in divid ualis t theor y of the Second Amendment, it should have been ea sy for the Court to deny his Second Amendment claim on the grounds that, as a private citizen, he had nothing to do with the Second Amendment. But instea d, the Court simply said that Miller had raised the claim against the wrong government by invoking t he Second Amendment directly against a state and at the wrong time (attem pting post -trial to use the Second Amendment as app lied t hrough the F ourteenth). Miller’s practical result, allowing the execu tion of a m an who defended h imself against r acist thugs, is har dly a shin ing exam ple in civil libert y. But th e case, like the preceding Supreme Court cases involving th e right to arms, does treat the Second Amendment as a right of individuals. 2. Robert son v. Baldwin Three years after Miller v. Texas, the Court heard Robertson v. Baldwin, a case involving merchant seamen who, after jumping ship, were capt ur ed and impressed back in to mar itim e service without due process. The seamen argued that the terms of their service contract amounted to “involunt ar y servitude” in violation of the Thirteenth Amendment.623 621. See supra notes 277-80 an d accompa nyin g text . 622. See supra notes 587-88 an d accompa nyin g text . 623. Robe rt son v. Bal dw in , 16 5 U .S. 275 (189 7). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1516 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 The Court disagreed, exp la in in g t hat all Const it ution al rights (including t he right to be free from involuntary servitude) in clu de cer tain exce pt ion s. Th ese excep tion s d id not need to be specifically noted in the Constitut ion, since they were obvious and tr aditiona l: Th e la w is p er fectly well settled that the first ten amendments to th e Con stitu tion , comm only kn own as th e Bill of Rights, were not intended t o lay down an y n ovel p rin ciple s of government, but simp ly to embody certain guaran ties and immunities which we ha d inherited from our En glish ancestors, an d w hich ha d from tim e im m em oria l been subject to cer ta in we ll-re cogn ized exce pt ions a ris ing from th e necessities of the case.624 The Court went on to add that these exceptions constituted such things as legislation prohibitin g libel, which does n ot abridge the First Amendment freedom of speech, and the prohibition of carryin g concea led weapon s, wh ich does n ot infringe the right to keep and bear arms.625 The Court’s statement about the Second Amendment indicates that the Court believed the Second Amendment protects an individual right. After all, there were no statutes prohibiting st ate m ilitia s or the N ation al Gu ard fr om carrying concealed weapons. Concealed carry proscriptions are aimed only at private citizens, not at state militias. Standard Model authors cite Robertson and Miller frequ ently. Anti-individu alists tend to empha size the h olding in Miller, while ign oring the implications of the point abou t a procedural default . Robertson is rar ely cited, since it is fatal t o the theory that the Second Amendm ent does not protect the right of individuals to carry guns. 624. Id. at 281. The Robert son Court’s theory that the American Bill of Right s includes all th e limit s from Br itish common la w was plain ly wrong. “[T]o assume that English common law in this field became ours is t o deny the gener ally accepted historical belief that ‘one of the objects of the Re volution w as to get rid of the English comm on law on liberty of speech and of the pre ss.’” A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Genera l of Mass., 383 U.S. 413, 429 (1966) (Douglas , J., concur rin g) (quotin g Schofield, Freedom of the Press in the Unit ed S ta tes , 9 PUBLICATIONS OF THE AMERICAN SOCIAL SOCIETY 67, 76). Indee d, St. Ge orge Tucker’s exposit ion of t he ne w Am er ican Con st itu tion ha d sh own in g re at det ail how Ame ri can rights were broader than their British counterparts. See BLACKSTONE, supra note 14. 625. See Rob erts on, 165 U.S. at 282. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1517 B. The Collective Righ t Establish es a Footing: Salina v. Blaksley After its creation by a concurring judge on the Arkansas Supreme Court in 184 2, t he a nti-in dividual theor y of the Second Amendment disa pp ea red from cases a nd t rea tises for the rest of the nin eteent h centu ry. Begin nin g in 1905, the an ti- individual theory gained a m ore secure footing in the Kansas Supreme Court decision Salina v. Blaksley. The Salina court ruled that “right to arms” mea nt only th at th e stat e milit ia, in its official capacity, and while in actua l service, could not be disarmed.626 Although the Kansas Supreme Court later moved away from Salina by declar ing a local gun control ordinance unconstitutional,627 by then, Salina’s “collective righ t” th eor y (meaning, in this cont ext , no righ t at all), 628 had spread far beyond the Ka nsas state line.629 The significa nce of Salina for this article is that the Salina court was forced to reject or misdescribe every nineteenth century sour ce of aut hority which it u sed. (No eighteenth century or prior sources were cited.) The Kansas court rejected Bliss v. Commonwealth630 and the long line of cases holding that in order to secure a well-regulated militia, individual citizens needed to be able to own and practice with guns.631 The court quoted a sentence from Bishop’s S ta tu tory Crim es that “the keeping a nd bea rin g of arms has reference only to war, and possibly also to insur rections.”632 The quote was accurate, but 626. See Sa lin a v . Blak sle y, 8 3 P . 61 9 (Ka n. 190 5). 627. See J un cti on Cit y v. M evi s, 6 01 P .2d 114 5 (Ka n. 197 9). 628. The nin et een th cen tu ry un der st an din g of a “collect ive r igh t” r ea d t he Secon d Amendment as gu aranteeing a personal right to keep arms, so that the people as a group coul d r esist ty ra nn y. Bu t a s u sed by th e Ka ns as cour t, “collect ive right” meant an affirmation of government power, in derogation to any right of a citizen. 629. The “collective right” (meanin g no righ t a t a ll), next a ppea red in a jud icial opin ion in United States v. Adams, 11 F. Supp. 216 (S.D. Fla . 1935) (reas oning t ha t the Secon d Am en dm en t “r efer s t o th e m ilit ia, a p rot ect ive for ce of government; to the collective bod y a nd not i nd ivid ua l r igh ts ”). Since Adam s, the collective right h as appear ed frequently in dicta in lower federal cour ts, bu t h as n ot ma de he adwa y in the Sup rem e Cour t. S ee Denn ing, Sim ple Cite, supra note 1 (discussing lower cour t cas es ); Kopel & Little, supra note 1, at 525-41 (discussing Supreme Court case hi st ory). 630. 12 Ky. (2 Li tt .) 90 (182 2). 631. See Salina, 83 P. at 620-21. 632. Id. at 621 (quoting B ISHOP, STATU TOR Y CRIMES, supra note 442, § 793, at D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1518 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 the Ka nsa s cou rt neglect ed the la ngu age s urrounding t he quote and other wr it in gs by Bishop, wh ich made it clea r that Bis hop thought the right to arms belonged to individuals, not the state.633 Lastly, the court quoted Commonwealth v. Murphy, an 1896 decision which had upheld, against a state constitutional claim, a Massachusetts law (sim ilar to the Illinois law upheld by th e U.S. Suprem e Court in Presser) which banned mass parades with weapons.634 The Massachusetts court had written: “The right to keep and bear arms for the common defense does not include t he righ t t o associat e together as a m ilitary orga niza tion , or to drill and p arade wit h arms in cit ies or towns, un less au th orized so to do by law.”635 But of course, t he Massachusetts holding that the right to arms does not authorize individuals to behave in a certain manner is not the same as th e Kansas holdin g that there is no individua l righ t a t all. Ult ima tely, the Salina holding stands on the Kansas court’s textual analysis of the implicat ions of th e Kansas ar ms righ t provision and of t he Secon d Am en dm en t. Th e Secon d Amendment was not at issue in the case, and was sim ply analyzed as a guide to textual analysis of the Kansas provision. No amount of textua l an alysis, however, can expla in why t he framers of the Ka nsas Const itu tion, in the middle of an Art icle titled “Bill of Rights,” suddenly in serted a pr ovis ion that had nothing to do with rights, but which instead tautologically affirmed a power of the state government: in essence, the m ilitia is under the com plete p ower of th e stat e govern m ent.636 Salina’s pa ragr aph of dicta abou t the m ea nin g of the Second Amendment laid the foundation for a late twentieth century anti-individual theory of the Second Amendment, a theory 536 ). 633. See supra notes at 442-47 an d accompa nyin g text . 634. See Com mo nw ea lt h v . Mu rp hy , 44 N. E. 138 (Ma ss . 18 96). 635. Id., quoted in S alin a, 83 P. at 621. 636. The Salina court was clearly on a mission. Neither party had urged an anti- individual int er pr et at ion i n t he br iefs; t he government att orney had sim ply argued that th e local law was a r eas onable gu n cont rol. S ee Brief for Appellee, Salin a v. Blaksley, discussed in Dowlut, Guarantees to Arms, supra note 1, at 77. Un sur prisin gly, the Salina court a lso ignored th e pre-Civil War h ist ory of Kansa s, in wh ich the proslavery government’s disarmament of individual citizens was denoun ced na tiona lly as a violation of th e Second Amen dme nt . See supra notes 310-16 and accompanying text. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1519 whose proponen ts often insist is the only possible interpretation. The record of the ninet eenth century demonstrates just the opposite. C. Late Twentieth Century Comm entators 1. Some thoughts about David Williams David Williams is the twentiet h cen tury expon en t of the most sophisticated version of the collective rights theory of the Second Amen dm en t. According t o Willia ms, the Secon d Amendment was, as the nineteenth century cases and commentators agreed, intended to ensure that “the people” of the United Sta tes would be able to overth row federal t yra nn y. According to Willia ms, the sole p urpos e of t he Secon d Amendment was a well-regulated militia; self-defense had nothing to do with it. The right to arms continues to exist, wrote Willia ms, only a s long a s d o the con dition s on which the Second Amendment’s republican theory is premised: only as lon g as the people are universally trained to virtue through state milit ia service; and only a s long as the people are unified, homogenous, and s hare a common vis ion of the good , so that they could rise as a single body to overthrow a tyrant. Since the diverse Americans of the late twentieth century do not fit the criteria of the republican “people,” ther e is curren tly n o Second Amendment right to arms, although th e righ t could r eappear if the people ch anged so t hat they on ce a ga in fit the r epublican model.637 Williams’ theory has been criticized on three major grounds. First, his th eory allows a constitutional right to vanish as a result of governmen t in action (failur e to conduct militia training).638 Second, his theor y is ahistorica l. The F ramer s of the Second Amendmen t were well awa re t hat “th e people” of the early American Republic were never as unified as in the republican ideal that Williams posits. If the Framers and the 637. See William s, Militia Movement, supra note 8. But cf. SIR EDWARD COKE, 2 THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND § 279b (Garlan d Publ. 1979) (162 8) (“ ‘A right cannot d ie.’ Dorm it a liqu an do jus, moritur nunqu am. For of such an high estim ation is righ t in th e eye of the law, as th e law pr ese rvet h it from death an d d es tr uct ion : tr odd en dow ne it ma y be e, b ut ne ver tr odd en out. ”). 638. See Powe, supra not e 1, a t 1 379-8 1; Volokh , Th e Am azi ng Va ni sh in g S econd Amendment, supra note 1. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1520 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 Amer ica n people would crea te a Second Am en dm en t wit hout need for a u topia n t ype of “people,” why should we now impose utopian conditions precedent on the Second Amendment?639 Indeed, Williams admits that the virtuous people of h is theor y never exist ed, bu t in congru ously asserts that the Second Amendment cannot be give n force unless his Platonic ideal becomes incarnate.640 Th ir d, any ch ange for the worse in t he character of any actor named in the Const itu tion (e.g., “the people,” or “the House of Representatives”) is not a valid reason for nega tin g a por tion of the Const it ution .641 The Bill of Rights was written not only for an age of virtue, bu t for potentia l future ages of depravity, wh en controls on governmen t—and reminders of vir tuous ideals—wou ld be all t he m ore necessa ry.642 639. See Kopel & Lit tle, supra note 1, at 483-84; see also GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC , 1776-1787, at 60-63, 218-222, 491, 579, 607 (1969) (stating that, in contrast to the British Whigs of the seventeenth century, the Founders were well awa re of divisions a mong t he pe ople, par ticula rly class con flict s). As Chancellor Kent explained, the th irteen colonies were jealous of each oth er’s prosper ity, an d divided by policy, institutions, prejudice, an d ma nn ers . So str ong wa s th e force of these cons ider at ions, a nd so exasperated were th e pe ople of th e colon ies in th eir dis pu te s wi th ea ch other conce rn ing bou nd ar ies and chart er claims, that Doctor Franklin (who was one of the commissioners to the congress th at form ed t he pla n of u nion in 1754) observed , in th e year 1760, th at a u nion of th e colonies against the mother country wa s absolutely impossible, or at least without being forced by th e m ost grievou s t yran ny an d opp re ssi on. 1 KENT, supra note 464, at *205. In oth er wor ds, William s ha s th ings exa ctly backwards: na tiona l unity is t he r esult of resista nce to t yra nn y, not a n ess ent ial cond iti on preced ent . The a bsen ce of nation al unit y in a n ontyrannical per iod (s uch as the late twen tiet h cent ur y) does not pr eclude t he em ergen ce of unity in a t ime of emer gency. 640. See Lun d, Past and Fu ture, supra note 1, at 59 n.138. 641. See Kopel & Lit tle, supra note 1, at 483-84 n.237. 642. It is n ot e nou gh to con fine th e m ea su re of hu ma n r igh ts to t he vir tu ous : We should endeavour to mete out th e blessing to ages of depravity (and these will sooner or later take place) as a restora tive to virtue. . . . The surest way t o avoid th e evil [of enslavem ent by governmen t], an d pre serve the dign ity an d h ap pin ess of ma n, i s t o begin righ t—by clearly defining the powers intended to be delegated by the people to their rulers for the sake of pr otection—and expressly enumer ating the right s to be reserved. Her e would appear the qu id pro q uo–and by appearing, these r ights would be un iversa lly understood and rem em bered . Th e t ra ns iti on fr om fr eed om t o slavery would be less ea sy– for th e righ ts of th e people bein g consta nt ly impressed upon th e min d, an d th e prin ciples of governm ent fully understood–nothing would be left to th e sp ort of imp lica tion , or t he cons tr uct ion of arbitrary controul. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1521 But it is nineteenth century legal history that provides the most powerful critique of Williams’ th eory. Du rin g th at cent ur y, according to Williams, the Second Amendment right to arms should have vanished. Instead, the Amendment grew stronger than eve r. Williams p oin ts t o the va riou s for ms of Amer ica n disunity toda y—such as d ivisions r ega rding r ace, r eligion , ethn icity, and s exu al orien tation—as p roof that Americans of the late twentieth century are no lon ger the homogenous and un ified Americans of the late eighteenth century. While we should not underestimate the centrifugal pu ll of multi- culturalism, and its harmful effect on American national unity,643 American disunity today is trivial compared to the disunity associated wit h t he Civil War. A civil war is, after a ll, about the most pr ofound sign of disunity possible. Even after the N orth defea ted the South, t he cou ntry experienced grea t difficult y restoring it s u nit y. Th e end of t he Civil Wa r wa s t he beginnin g of a lower-grade, often violent stru ggle between whit e suprema cists an d freedmen in the South. And not long after the struggle ended, with the triumph of wh it e supr em acy, Am er ica found itself in the m idst of another violent struggle—this one taking place all over the nation—as workers literally fought for their rights and capital holders suppressed the workers violently. America in the last half of the n inet eenth centur y was divided on sectional, racial, . . . [Quoting Jefferson:] “Our rulers will become corr upt , our pe ople careless. . . . It can never be too often repea ted , THAT THE TIME FOR FIXING EVERY ESSENTIAL RIGHT ON A LEGAL BASIS, IS WHILE OUR RULE RS ARE H ONE ST, AND O URSE LVES U NIT ED.” Tulliu s (Philade lphia ), FREE MAN ’S J., Mar . 26, 1788, in ORIGIN, supra note 37, at 309- 10 (quot ing J effer son from Notes on the S tate of Virginia). At th e Virginia ra tifying convention, Patrick Henry warned that the federal government migh t n eglect the m ilitia, and th e people would be disa rm ed. Expecting that virtue alone would guarantee th e continuat ion of the militia was foolish, Henry predicted: “In this great, this essential part of th e Con st it ut ion [fed er al pow er s of t he militia], if you are sa fe, it is not from the Constitut ion, but from the virtu es of men in gover nm en t. I f gen tle me n a re willi ng to t rust them selves and posterity to so slender and improbable a chance, they have greater stren gth of ner ves t ha n I h ave.” Richard Henr y Lee, Va. Convention Debat es, Ju ne 14, 1788, in ORIGIN, supra note 37, at 407. In what age is it more important to enforce strictly all constitutional rules designed to protect the people from less than virtu ous rulers: The Age of Th oma s J effer son , or T he Age of Will iam J effer son Clin ton ? 643. S ee, e.g., ARTHUR M. SCHLESINGER, JR., THE DISUNITING OF AMERICA (199 7). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1522 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 and class lines to a much more profound degr ee tha n America is divided today. And what happened to th e Second Amendmen t dur ing this period of very unrepublican disunit y? Th e elect ed representatives of “the people” made the Second Amendment str onger than ever.644 For over a decade, Congress worked energet ically to protect the Second Amendment from private and state government inter ference. Further, the state legislatures ratified a Fourteenth Amendment intended to guarantee a right to own weapons for personal defense.645 Commentator after commentator and court after court affirmed that the Second Amendment was a current , enforceable guarantee of the r igh t of every Am er ica n cit izen to own weapons.646 Almost all of these cases and commentaries were contemporaneous with th e tu rm oil associat ed wit h t he Civil War, the Reconstruction, or the labor wars. If the Second Amendment survived an d thr ived thr ough a ll the disunity of the second ha lf of the nin eteenth centur y, and also survived the abandonment of the pretense of regular militia training by most states after th e Civil War , th en it is hard to believe that the Second Amendment is such a feeble creature that it can be felled by the relatively minor modern disu nities of the 1990s. 2. Some thoughts about Carl Bogus In his 1998 art icle, The Hidden History of the S econd Amendment, Carl Bogus follows in the path of David Williams647 and attempts to seriously engage original sources.648 Although Bogus writes in opposition to the Standard Model, his article ma kes an importan t cont ribut ion by highligh tin g th e importance of the m ilitia in the South in crushing and deterring slave insurrections.649 With th e exception of Robert Cottr ol and Ray Diamond,650 Standard Model au th ors h ave n eglected th is unattractive aspect of the militia. 644. See supra notes 333-58 and accompanying text. 645. See supra notes 348-54 and accompanying text. 646. See supra notes 360-487, 494-591, 611-25 an d accompa nyin g text 647. Bogus, Hidd en History, supra note 2. 648. See generally id. 649. See id. at 333-35. 650. See Cott rol & Dia mon d, supra note 1. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1523 Unfortu nately, Bogus attem pt s t o turn a useful con tribu tion to scholarship about the militia in to a tool that single-handedly overturns the individual rights Sta nda rd Model. Bogus’ history is plainly defective in it s reading (an d invention) of th e eighteenth centur y record, and the defects become all the clearer in ligh t of th e nin eteenth cent ur y. Becau se Bogus’ article addresses eigh teenth cent ur y sour ces not previously discussed in th is article, it is now necessary to examine these sources. Bogus ma kes th e following a rgument: (1) the militia in the South was frequently u sed to su ppr ess slave ins ur rections, an d for slave p atrolling t o deter in su rrect ion or flight;651 and (2) at the Vir gin ia ratifying conven tion , oppon en ts of t he proposed Con st it ution , such as Patrick Henry, worried that the federal powers over the militia would prevent the states from calling out their militias to suppress slave insurrections.652 From these uncontested facts, Bogus then makes a leap of reasoning to conclude that Madison wrote the Second Amendment solely to affirm th e power of states to use th eir milit ias to cru sh slave revolts.653 One problem wit h Bogus’ thesis is that it ignores the evidence that even the h ard-cor e Vir gin ia slave ow ner s, su ch as Patrick Henry, who wanted a strong militia to protect them from th e sla ves, also wa nted a st rong m ilitia for protection from the federal government.654 Bogus tells the r eader three times that George Mason ha d three hundred slaves;655 but Bogus never tells th e reader t ha t Ma son wa nt ed an a rm ed wh ite populace not just to control sla ves , bu t because wit hout arms, the white population could more easily be enslaved.656 651. See Bogus, Hidd en History, supra note 2, at 333-37. 652. See id. at 322-37. 653. See id. at 359-74. 654. “Have we means of resisting disciplined ar mies , when ou r on ly defen ce, th e militia, is put into the h an ds of Congres s?” Patr ick Hen ry, Virgin ia Ra tifying Convention, Jun e 5, 1788, in ORIGIN, supra note 37, at 370. 655. See Bogus, Hidd en History, supra note 2, at 331 n.102, 349, 374 n.313. 656. Forty year s ago, wh en t he r esolut ion of ensla ving Ame ri ca was form ed in Great Brit ain , the Brit ish P ar liamen t was advis ed by an ar tful m an [Sir William Keith ], who was gover nor of Pen nsylva nia, to disarm t he people; that it was th e best an d most effectual way to enslave them ; but that they shou ld not do it openly, but weaken them , and let them sink gradua lly, by tota lly disusing and neglecting the militia. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1524 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 Further, Bogus un der plays the dem an d for an a rm s right that came from the North ern states, where protection of slavery was not an importan t issue. Ha lf a year before th e Virginia conven tion had m et , the m inorit y of the Pennsylvania ratifying convention ha d dema nded a Bill of Rights, includin g: 7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for t he pu rp ose of killin g ga m e; an d n o law shall be passed for disarming th e p eop le or an y of th em , unless for crimes com m itte d, or re al dan ger of pu blic injury from individuals; an d a s st an din g arm ies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the m ilitar y sh all be ke pt unde r s tr ict s ubor din at ion to and be governed by the civil power. 8. The inhabitants of the several states sha ll have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like m an ner to fish in all nav iga ble wa te rs , an d ot her s n ot private property, without being restr ained t herein by any laws to be passed by the legislature of the Un ited States.657 Four months before Virginia met, Massachusetts ratified the Con st it ution , after hard-line federalists turned back an amendment authored by Samuel Adams, that the said Constitution be never construed to authorize Congress to infringe the just liberty of the p ress, or the right s of con sci en ce; or t o prevent th e people of the United States, wh o ar e pe aceab le citize ns , from keepin g their own a rms; or to raise standin g a rm ies , unles s w hen necessary for t he d efence of th e U nite d S ta te s . . . .658 Likewise, wh ile Vir gin ia wa s s till deba tin g t he Constitution, New Hamps hir e r atified t he document and recommended amendments, including th at “Congress shall never disarm any George Mas on, Virgin a Ra tifying C onven tion, Jun e 14, 1788 , in ORIGIN, supra note 37, at 401. 657. The Address and R easons of Dissent of the Minority of the Convention of the State of Pen ns ylv an ia t o th eir C ons tit uen ts , PEN NSL YVANIA PACKET, Dec. 18, 1797, in ORIGIN, supra note 37, at 160. 658. Massachuset ts Conven tion Deba tes , Feb. 6, 1788, in ORIGIN, supra note 37, at 260. See als o id. at 263 n.4, for the political machinations surrounding the Adams amendment. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1525 citizen, unless such as are or h ave been in a ctual r ebellion.”659 New York’s convention concluded about a month after Virginia’s, and New York ratified while requesting amendments, inter alia, “[t]hat t he people h ave a r ight to keep and bear arms; that a well-regu lat ed militia, including the body of the people capable of bearing arms, is the proper, natural, and s afe defen ce of a free stat e.”660 Rhode Island, which refused to ratify until 1790, copied New York’s right to arms demand.661 Lon g before the United States Constitution had even been proposed, a right to ar ms ha d alrea dy been constitu tionally recogn ized—n orth of the Ma son-Dixon line—in the Pen nsylvania Con st it ution ,662 the Vermont Constitution,663 and (more restrictively) in the Mass achusetts Const it ution .664 Bogus ent irely neglects t o men tion th e Penn sylvania dissent and the Samuel Ada ms proposal in Massachusetts. He provides no exp la nation for why the right to arms amendment , supposedly motivated only by Southern slave concerns, was dem anded by three North ern state conventions where slavery was in sign ifica nt.665 Thus, Bogus errs by givin g t he entir e cr edit for the Secon d Amendment to Virgin ia a nd th e rest of the Sout h, even though demands for a right to bear arms came first from the North, 659. N.H. Rat ifying Conve nt ion, J une 21, 1788, in ORIGIN, supra note 37, at 446. 660. N.Y. Ratifying Convention, J uly 26, 1788, in ORIGIN, supra note 37, at 481. 661. See R.I. Ratifying Convention, May 29, 1790, in ORIGIN, supra note 37, at 735. 662. That the people have a right t o bear arm s for the defence of themselves and the state; and as stan ding armies in the time of peace are dangerous to libert y, they ought not to be kept up; and th at th e military should be kept under strict subordina tion to, and governed by, the civil power. PENN. CONST., DECLARATION OF RIGHTS ar t. XIII (177 6), excerpted in ORIGIN, supra note 37, at 754. 663. See VT. CO NST. ch. 1, a rt . XV (1777), excerpted in ORIGIN, supra note 37, 767 (same la ng ua ge a s P en ns ylva ni a). 664. The people have a right to keep and to bear arm s for the common defence. And as , in th e t im e of peace, armies ar e dan gerous to liber ty, th ey ought not to be maint ained without the consent of the legislature; and the military power sha ll alwa ys be in an exact sub ordin at ion to the civil au th orit y, an d be governe d by it. MASS. CONST., PART THE FIRST ar t. XVII (1780), excerp ted in ORIGIN, supra note 37, at 773. 665. See Bogus, Hidd en History, supra note 2, at 364-65. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1526 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 and such a right wa s alrea dy constitu tionally esta blished in three northern states.666 Bogus fur th er err s by emphasizing only one important Sout her n inter est in the m ilitia (suppression of servile insurr ection), while un derestima tin g other important Southern and Northern interests in the m ilitia (such as deterr ing centr alized tyr an ny en forced by a sta nding army, or promoting civic virtue).667 Moreover, Bogus ignores the human rights tr adition—of which Madison ’s closest polit ica l ally and life-long friend Thomas Jefferson was an important part —which promoted the right to arms for reasons totally unconnected to the militia.668 The Standard Model scholarship has provided abundant eighteenth cen tury historical eviden ce t hat one pu rpos e of t he state milit ias was to resist federal t yra nny, should the other check s and bala nces in the gover nmen t fail. Another purpose was to ensure that the people would be armed so that the milit ia might be effective.669 Bu t Bogu s a void s d iscuss in g or quoting an y of these m an y stat ement s by dismissing them as “soapbox rh etoric.”670 He ma kes th e astonishing claim th at , despite ha ving r ecent ly fought a r evolution to overthrow a tyrannical government, the Framers of the Constitution did not believe in the le git im acy of armed r esistance t o a tyr annica l government (and hence, the Second Amendment could not protect the arming of the populace as a last-resort check on despotism).671 Bogus support s this claim by stringing together a litany of quotes showing that the Framers (Jefferson excepted) were horrified by Shays’ Rebellion.672 Bogus asserts that 666. Bogus briefly acknowledges the Northern views, but a rgues that they were insignificant, compa red to th e imp ort an ce of Virginia . See id. 667. See William s, Civic Republicanism , supra note 8. 668. See Ha rdy, Second Amendment, supra not e 1. J effer son ’s model cons tit ut ion for Virginia declared, “No freeman sha ll be debarred the use of arm s within his own lands or tene men ts.” Thoma s J efferson , The Virginia Constitu tion, Third Draft, in 1 THE PAPERS OF THOMAS JEFFE RSON, 1760-1776, at 363 (195 0). 669. See sources cited supra note 1. 670. Bogus, Hidd en History, supra note 2, at 344. 671. See id. at 390-407. 672. See id. at 393-95. Throughout the article, Bogus offers a one-sided catalogue of militia failures, neve r a cknowle dging a ny m ilitia success afte r 177 5. See id. at 337- 44. For example, Bogus twice reminds t he rea der th at t he Virginia militia disgraced itself by fleeing a t t he Ba tt le of Cam den , Sout h Ca rolin a in 1780. See id. at 341, 345. But Bogu s ign ore s t he mi lit ia’s exce llen t p er form an ce a few m ont hs later in South Carolina, at t he Bat tle of Cowpens—the tur ning point of the wa r in t he Sou th —wh ich D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1527 because th e Fr am ers wer e against Daniel Shays, they must have been aga in st the ge ner al prin ciple of revolution against tyranny.673 To t he con trary, Shays’ Rebellion lacke d t wo of the set th e st age for York town . See LAWRENCE E. BABITS, A DEVIL OF A WHIPPING: THE BATTLE OF COWPENS (1998 ). Th er e, t he mi lit ia w as su ppor ted by the Continental Army, an d su per bly led by Br igadie r Ge ner al Da niel Morga n. See id. Nor does Bogus mention the militia’s success again st Gen eral Bu rgoyne’s 1777 Sar at oga camp aign, or th at in 1778-79, t he Kent ucky m ilitia, led by George Rogers Clark, captured key British posts on the Wabash River in the future states of Indiana and Illinois. The victories helped legitimize the United States’ claim to all British territory east of the Miss issippi, wh ich Brit ain later r ecognized in t he 1783 p ea ce tr eat y. S ee ROBERT W. COAK LE Y & STETSON CONN, THE WAR OF THE AMERICAN REVOLUTION 60-6 2 (19 75); E DWARD COUN TRYMAN , A PEOPLE IN REVOLUTION: THE AME RICAN REVOLUTION AND POLITICAL SOCIETY IN NEW YORK, 1760-1790, at 76 (1 989 ); WALTER LAFEBER, THE AMERICAN AGE: UNITED STATES FOREIGN POLIC Y AT HOME AND ABROAD SINCE 1750, at 20 (198 9). A recent st udy of George Washington’s use of the m ilitia in Connecticut, New York , and N ew Jersey explains tha t, while the m ilitia could not, by itself, defeat the Redcoats in a pitched battle, the militia was essential to American success: Wa sh ing ton learned t o recognize both the strength s and t he weaknesses of the m ilitia. As regular soldiers, militiamen were deficient . . . . He therefore incr ea sin gly d et ach ed C ont ine nt als to s up por t them wh en operating against the British ar my . . . . Militiamen were ava ilable everywhere and could respond to sudden att acks and in vasions often faster than th e ar my could. Wa shin gton t her efore us ed th e milit ia unit s in t he stat es to provide local defense, to suppress Loyali st s, a nd to r all y to t he army in cas e of an in vasion . . . . Wa sh ing ton ma de ful l u se of th e p ar ti sa n q ua lit ies of th e militia forces around him. He used th em in sma ll par ties t o har ass an d ra id th e ar my, and to gua rd a ll the places he could not send Continen tals . . . . Rather than try to turn the militia into a regular fighting force, he used and exploited its irregular qualities in a partisan war against the British and Tories. . . . His view of militiam en a tt ach ed t o th e a rm y did not cha nge fr om the view presented ea rly in the wa r: “all the General Officers agree tha t no Dep en den ce can be put on th e milit ia for a Continuance in Camp, or Regularity or Discipline dur ing the short time they may stay.” This was Washington’s major complaint about the militiamen. He did not que st ion th eir bra very, loyalty, or willin gness to fight wh en n ecessa ry, bu t h e could never accept th eir h abit of coming an d going wh en t hey p leas ed. . . . On th e other h an d, milit iam en h ad m uch t o offer, especially when fightin g on their own and as pa rtisans, and Washington tried to take adva nt age of th eir av ai la bili ty eve ry wh er e. As th e wa r ca me to an end, Wa sh ing ton expressed this attitude clea rly: “The Milit ia of t his Cou nt ry must be consid ere d as th e Pa lladiu m of our secur ity, a nd th e fir st effect ua l resort in cas e of hostility . . . .” MARK W. KWASNY, WASHINGTON’S PARTISAN WAR: 1775-1783, at 337-38 (1996) (alt er at ion in original for Washington quote) (citing Letter fr om G eor ge Wa sh ing ton to John Ha ncock (J uly 10, 1 775); George W ash ingt on, Circular t o the States (June 8, 178 3)). 673. See Bogus, Hidd en History, supra note 2, at 390-96. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1528 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 essential ele men ts w hich , a ccording t o the Decla ration of Independence, were necessary just ifications for a legitima te revolution . First, the policies of the Massachusetts government, which so aggrieved Sh ays an d his fellow farm ers in the western part of the state, may have been mistaken and burdensome, but they were not an attem pt to en slave t he people of Massachusetts. In contrast to the policies of King George III, nobody could seriously describe the polices of th e Massachusetts government as “a ll having in direct object the est ablishment of an a bsolute Tyra nn y.”674 Second, the Massachusetts government, in contrast to King George’s government, wa s a republican one in wh ich Shays and his fellows were represented. When the American colonists had “Petitioned for Redress in the most humble ter ms . . . [a nd] been an swer ed by r epea ted injury,”675 the colonists’ peaceful remedies were at an end; they ha d no repr esen ta tion in Parliament. To a ccept Bogu s’ th eor y that the Founders were no longer “insurrectionists” (Bogus’ term for just ifia ble revolution against tyra nny), Bogus requires us to believe that the condemnation of Shays’ Rebellion proves that the Founders had turned against t he ver y political theory to which they had pledged th eir “Lives,” their “Fortunes,” and their “sacred Honor.”676 An explanation which does not require the reader to believe that the Founders were so ideologically inconsistent is simply that the Framers thought revolution justified in 1776 against King George, but not in 1787 against Massachusetts. After all, if a speaker condemns an unjustified use of force in purported self-defense, t he condemnation does not necessarily mean th at th e speaker is opposed t o forceful self-defense in all circumstances. The th eory t ha t t he Fr am ers disapproved of revolt against tyranny is part icular ly err oneous in the case of J ames Ma dison , because in Fed eralist N o. 46 Madison sketched out a scenario in which the necessarily small federal standing ar my would be 674. THE DECLARATION OF INDEPENDENCE pa ra . 2 (U .S. 1 776). Som e of the mor e fervid Shaysites did claim th at t he Massa chusett s government wan ted t o tak e all th eir lan d an d en slave th em, see DAVID P. SZATMARY, SHAY’S REBELLION: THE MAKING OF AN AGRARIAN INSURRECTION 96-97 (1980), but the claim obviously had no credibility among th e Fr am ers of the Const itu tion. 675. THE DECLARATION OF INDEPE NDENCE pa ra . 19 (U. S. 1 776 ). 676. Id. at pa ra. 20. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1529 opposed by “a militia amounting to near half a million of citizens with arms in their hands” which would be able to defeat a tyrannical standing army.677 How could tyranny over come “the advantage of being armed, which the Americans possess over the people of a lm ost eve ry ot her nation”?678 Bogus la bor s mightily to undo t he obviou s implica tion s of these words, and in t he process offers some u seful insights. For example, Bogus observes that Madison was writin g arguendo, sin ce Madison had made it clear that he expected that the federal government would never a tt empt to rule tyr an nica lly by military force.679 But neith er th is point , nor Bogus’ other points (such as th e fact t ha t t he F eder alist essays wer e writt en in a hurry),680 un dermin e th e basic fact tha t Ma dison obviously thought armed m ilitia resistance to American federal tyranny to be legitimate–even though Madison never expected the dire event t o take place. That Madison apparently saw t he m ilitia as poten tia lly useful in r esistin g tyr an ny cann ot be squar ed wit h Bogus’ assertion that the Second Amendment was only about protecting th e militia for slave pa tr olling and slave controlling; nor can Madison’s words be squared with Bogus’s assertion that except for J effer son none of the Framers were “insurrectionists.” Bogu s erroneou sly states that “one cannot read The Federalist Num ber 46 as an explanation of the Second Amendment becau se, of course, it would be several more years before Madison would writ e tha t provision.”681 Actua lly, th e interval from the publication of Federalist No. 46 (January 29, 1788) to Madison’s introduction of th e Bill of Rights in Congress (June 8, 1789) was less t han a yea r and a half.682 Wh at evidence is ther e in this in ter va l t hat Ma dison abandoned his last “insurrectionist” thoughts? In support of his statement that the Federalist No. 46 is not an explanation of the Second Amendment, Bogus argues that Madison’s “support for a strong 677. THE FEDERALIST NO. 46 (J am es Ma dis on). 678. Id. As the rest of the essay makes clear, Madison saw the likely success of a militia revolt a gainst t yra nn y as de pend ing on t he exis tence of strong state government s to lea d th e milit ias. See id. 679. See Bogus, Hidd en History, supra note 2, at 400-04. 680. See id. at 401. 681. Id. at 404. 682. See ORIGIN, supra note 37, at 234, 647. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1530 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 federal government and his fear of anarchy probably both increased.”683 Bogus further notes that one of Madison’s biographers concluded that Madison liked the Constitu tion even better after he had finished writing the Federalist.684 True enough, bu t lik in g t he Const it ution eve n more does not mean that Madison loved civil liberty any less. In addition, wr ites Bogus , “The full impact of Shays’ Rebellion and lesser in su rrect ion s h ad p roba bly not been fully absorbed.”685 Bogus provides no support for this claim, a nd it is preposterous. As Robert Rutland, one of Madison’s biographers on whom Bogus does not rely, notes, Shays’ Rebellion was precisely th e event t ha t Madison u sed to convince George Washington to attend the P hila delphia Con ven tion that Madison was trying to organize.686 Rutland also observes that the Ph iladelphia Convent ion opened in an atm osphere of panic engendered by Shays’ Rebellion, an d Madison himself found the Rebellion “distressing beyond measure to the zealous friends of the Revolut ion.”687 But if we are to believe Bogus, the very Founder who organized this convention which was so stricken by panic over Shays that it crea ted an en tir ely new form of government, wa s h im self n ot feelin g “th e fu ll impa ct” of the Rebellion. Ma dison wa s a pp aren tly a rather odd person : he used Sh ays’ Rebellion to convin ce Am er ica ’s elite that a new government was desperately needed, and led a campaign t ha t spanned the continent in order to get the new government approved; but perha ps sufferin g from some form of psychic nu mbing, Madison never felt the full im pa ct of Sh ays’ Rebellion until the next year. 683. Bogus, Hidd en History, supra note 2, at 404. 684. See id. 685. Id. 686. See ROBERT A. RUTLAND, JAMES MADISON: THE FOUNDING FATHER 5 (19 87). 687. Letter from J am es Ma dison to Geor ge Mater (Ja n. 7, 1787), in 9 THE PAPERS OF JAMES MADISON 230, 231 (Robert Rutlan d ed., 197 5); see also RUTLAND, supra note 686 , a t 1 4. T he su pp re ss ion of an y fu tu re Shays -like ins ur re ction wa s of great im por ta nce to t he Ph ila del ph ia C onve nt ion, an d wa s on e of the reasons that the new Const itu tion ga ve th e na tiona l governm ent power over t he m ilitia, to rescue the militia from t he n eglect of th e st at es. See SZATMARY, supra note 674, at 129 (citing Madison’s Notes of the Debates in the Federal Convention of 1787). The Framers’ interest in u sin g th e m ilit ia t o su ppr ess ins ur re ction s by Nor th ern whit e fa rm er s of course cont ra dict s Bogu s’s pict ur e of the mi lit ia a s ir re leva nt excep t for th e purposes of crushin g Sout her n sla ve re volts. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1531 Fin ally, writes Bogus, Ma dison’s insurr ectionary in clin ation s from Federalist No. 46 cannot be carried forward seventeen months into the Secon d Am en dm en t because, in the interval, the “rhetoric that had been so useful in stimulating revolution , such as romanticizing the militia and railing against the evils of a sta nding a rm y, must have begun to have a different effect on Ma dison as it becam e th e tool of anti- Federalist opposition.”688 Again , th ere is no evidence for Bogus’ at tempted mind reading. The historical record makes it abundantly clear that to James Madison, “the rhetoric” about the virtues of militias and the terrors of standing armies was not a mere talking point that he abandoned once his cher ished Con st it ution became operative. In 1801, the political party created by J efferson and Madison took power after winning th e election of 1800—despite the problems caused by t he elect ion bein g t hrown in to the House of Repr esen tatives by Vice-Presiden t Aaron Burr’s chican ery. “What had saved America from the spectacle of blood sh ed?” ask s Robert Ru tla nd, the com piler of the Madison Papers. In Ma dison ’s m in d t h e a n sw er wa s cr ysta l-clea r: th e la ck of a standing arm y. He never expected the anti-Jefferson forces to win, he con fess ed to t he n ew ly ele cte d p re sid en t, for it would have been im poss ible t o oppos e the peop le’s will “without any m ilitary force to a bet usu rp at ion.” Eve r t he op tim ist , Ma dis on said th e wh ole exp er ien ce had been b en eficial. “And what a lesson to Am er ica & t h e w orld, is g ive n by th e e ffica cy of t h e p u bl ic w ill w h en t h er e i s n o a r m y t o b e t u r n ed a gs t . it !”689 In his First Inaugur al Address, in March 1809, President Madison urged Americans during a period leading up to war with Great Britain, “to keep within th e requisite limits a standing militar y force, always remembering that an armed and trained militia is the fir mest bu lwark of republics—t hat without standing armies their libert y can never be in dan ger, nor with la rge ones safe.”690 Not only did Madison still prefer milit ias to st an ding ar mies, he obviously saw the militia as 688. Bogus, Hidd en History, supra note 2, at 404. 689. RUTLAND, supra not e 68 6, a t 1 68 (cit ing Let te r fr om J am es M ad ison to Thomas J effe rs on (Fe b. 2 8, 1 801 )). 690. Ja mes Madison, Fir st In augu ral Addres s, March 4, 1809. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1532 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 useful for somet hin g other t ha n catching sla ves—na mely pr otect ion aga in st foreign in va sion. The English Declaration of Rights of 1689 proclaimed “[t]hat the su bjects w hich are P rotestants m ay h ave a rms for their defence suitable to their conditions and as a llowed by law.”691 Bogus argues that this provision “did not give Protestants an in divid ual r igh t to have a rms; it decreed that Parliament, an d not the Crown , would determine the right of Protestants to have ar ms.”692 Madison, Bogus informs us, “was almost certainly influenced by the right to arms provision of the Declar at ion,” and “Madison followed Parliament’s solution” by not insertin g an individual r ight into the Second Amendment.693 “We do not know why Ma dison chose to dr aft his pr ovis ion s precisely this way. H e did n ot expla in his thin king in any speech or let ter t ha t h as come to light,” writes Bogus .694 691. 1 W. & M., Ses s. 2, ch. 2 (1689). 692. Bogus, Hidd en History, supra note 2, at 384. Bogus is corr ect in s aying th at the British provision gave Par liamen t wide latitude in controlling who could own what types of gun s, bu t w ron g to con clud e t ha t t he pr ovisi on’s pla in l an guage did not recogn ize a right of Englishmen. Bogus reasons tha t since the “as allowed by law” clause recognized Parliamentary auth ority to limit arms ownership, the entire clause is mer ely an ass ert ion of Par liam ent ar y supr ema cy again st t he Kin g with regard to arms contr ol. Id. at 383-85. The assertion that a subordinate clause overwhelms and obliterates th e plain mea nin g of the m ain clause is an interpr etive m ode which B ogus applies to b oth th e E nglish Decla ra tion of Righ ts an d t he Ame rican Secon d Amendment. Bogus lea ds h im sel f int o er ror by r ea son ing th at sin ce t he Con ven tion Parliament (wh ich gave the crown to William and Mary, after t he Glor ious Revolut ion) was a ngr y that the previou s King, J am es I I, h ad at te mp te d t o dis ar m m ost of th e pop ula tion , Parliament was merely assert ing its own supremacy regarding arms control. But everything that James II did to take arms away from English subjects was pursuant to duly-elected Par liamen tar y stat utes , including the Game Act of 1671. James II had never asserted that he, rather than Parliament, could make the gun laws; he had simp ly ri gor ous ly en force d the gun s law s ma de by t he Re stor at ion P ar liam ent s. See MALCOM, supra note 1, at 94-112. Bogus does not provide one e xam ple of an y seizu re of private arm s by King James II that went beyond the bounds of what P arliam ent’s laws auth orized. Of cou rs e, t he me re re cogn it ion of an individual right by Parliament did not do much to protect the right, beyond making a moral statement. In a system of Parliamentary suprem acy an d with out m ean ingful jud icial review, future Parliaments could easily undo what the 1689 Par liament ha d done . An d gi ven th e br ea dt h of th e “suita ble to t he ir cond iti ons , an d a s a llowe d by l aw ” lan guage , one could argue that, even today, Parliam ent h as not infringed the right, since modern English subjects are allowed to have ma nua l action rifles and shotguns, after passin g th rou gh a r igor ous licensing process . 693. Bogus, Hidd en History, supra note 2, at 386. 694. Id. at 366. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1533 Actua lly, Madison did expla in his drafting choices, and that exp la nation makes it clear that Madison (unlike Bogus) viewed the English Declaration as protecting an individual righ t, and that Ma dison wa nted the Am er ica n arms right t o be broader and more protective of individual rights than was the English ver sion. Madison’s notes for his speech in Congress introducing the Bill of Rights explained that the proposals were to deal with the “omission of guar ds in favr. of right s & liber tys.”695 His amendments “relate 1st. to private rights.” A Bill of Rights was “useful—not essentia l.” There was a “fallacy on both sides—esp ecy as to En glish Decln. of Rts.” First, th e Declar at ion was a “mere act of parlt.” Second, the English Decla ration was too narrow; it omitted certain rights and protected others too nar rowly. In part icular, t here was “no freedom of pr ess—Conscien ce.” Th er e was n o pr ohibition on “Gl. Warrants” and no protection for “Habs. corpus.” Nor was there a guar an tee of “jury in Civil Causes” or a ban on “criml. attainders.” Las tly, t he Declar at ion pr otected only “arms to Protestts.”—appa ren tly t oo narrow a slice of p opu la tion .696 And th ere is m ore evidence, apparent ly hidden from Bogus, about what Madison’s Bill of Rights meant. A few days after Madison introduced the Bill of Rights, Madison’s political ally Tench Coxe (who would serve President Madison’s admin istra tion as the P urveyor of Public Su pp lies, in charge of procuring arms for th e militia ) wrote the most comprehensive section-by-section exp osit ion on t he Bill of Rights to be published du rin g it s r atifica tion period. Rega rding t he Second Amendment, Coxe explained: As civil ru lers, n ot h aving th eir du ty to t he p eop le, d uly be fore them, may attempt to tyrannize, and as th e military forces which shall be occasionally raised to defend our country, might pervert th eir pow er to t he in jury of th eir fellow -citize ns, t he peop le ar e confir m ed b y th e n ext ar ticle in their right to keep and bear th eir private ar ms.697 695. Ja mes Madison, N otes for S peech in Congress Supporting Amendm ents, June 8, 1789, in ORIGIN, supra note 37, at 645. 696. Id. 697. FED ERAL GAZETTE (Phila delph ia), J un e 18, 1789 , at 2, in ORIGIN, supra note 37, at 671. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1534 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 Coxe sent a copy of his essay to Madison, along with a letter of the same date.698 Madison wrote back acknowle dgin g “your favor of th e 18th. instan t. Th e print ed rema rks inclosed in it are alr eady I find in the Gazett es her e [New York ].”699 Madison approvingly added t ha t r at ification of th e am endmen ts “will however be greatly favored by explanatory strictur es of a healing tendency, and is t her efor e a lr ea dy in debt ed to the co- opera tion of your pen .”700 Madison respected Coxe’s ceaseless work on behalf of the proposed Constitution in 1787-88, a nd liked some of Coxe’s federalist essa ys so much that Madison successfully urged Virginia newspapers to reprint them.701 Of course, Madison’s apprecia tive en dor semen t of Coxe’s ess ay on the Bill of Righ ts d id not specifically say “I endorse every single statement made in you r essa y.” On the ot her hand, if Ma dison disagreed with th e prolific auth or’s ana lysis, Ma dison might have been expected to correct him, so as to prevent the propagation of further errors. Historians may debate how much weight to give Coxe’s explica tion (wh ich wa s u ncontradicted during the ratifying period) and Madison’s approving letter to Coxe. But it is astounding that Bogus, in a hu ndred-page a rt icle filled wit h sp ecu la tion about Madison’s supposed hidden thoughts, fails eve n to mention some rather notable written evidence about what Madison and his contem pora ries rea lly thought. Bogus’ theory is also self-contradictory. He asserts that Madison wrote the Second Amendment the way he did because, “Specifically, Madison sought to assure that Congress’s power to arm the militia would not be used to disarm the milit ia.”702 But then Bogus informs us that Congress can, using its power to “organize” the militia, declare that the militia consists only of a small group (such as the modern National Guard) and disarm eve ryon e else.703 Bogus thus joins Garry Wills in the assertion that the Second Amendmen t effectively mean s nothing at a ll. But while Wills considers Madison a devious t rickster —with a 698. See Coxe to Ma dison, Jun e 18, 1789 , in ORIGIN, supra note 37, at 672. 699. Ma dis on to Coxe, J un e 24, 1789 , in ORIGIN, supra note 37, a t 673 . 700. Id. at 674. 701. See JACOB E. COOKE, TENCH COXE AND THE EARLY REPUBLIC 113 (197 8). 702. Bogus, Hidd en History, supra note 2, at 369. 703. See id. at 408. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1535 clever ploy of draftsmanship that meant nothing and fooled the entire nation704—the implication drawn from t he Bogus art icle is that Ma dison wa s a fool; Ma dison supposedly drafted an amendment that was intended t o pr eve nt Con gr ess fr om disarming the state militias; but despite Ma dison’s amendment, Congress can do exactly what the amendment was designed to prevent. Here, Bogus is directly contradicted by t he h istorica l r ecor d. Madison’s original Secon d Am en dm en t concluded with the provision “but no person religiously scrupulous shall be compelled to bear a rm s.”705 Although Bogus notes that Massachusetts Con gr essm an Elbr idge G er ry wa nted Ma dison ’s clause narrowed,706 Bogus does not inform t he reader of Gerry’s specific objection: “Now, I am a ppr ehensive, sir, that this clause would give an opportun ity to the people in power to destroy the constitution itself. They can declar e who are th ose religiously scrupulous, and prevent them from bearing arms.”707 In other words, Representative Gerry was afraid t hat Congress could use the religious exemption as a pretext to exclude la rge numbers of people from the militia. Represent ative Gerry was attempting to ensure that Congress would not have the power to do what Bogus asserts Congress can do: to replace the universal milit ia with a select m ilitia , and to disarm everyone not in the select militia. Bogus’ un supported claim s to know wha t Madison t hought are but tr essed by claims to know wh at everyone else thought . We are informed by Bogus th at “Madison’s colleagues in th e House and Senate alm ost cer tain ly con sidered the Secon d Amendment to be part of the slavery compromise.”708 But Bogus provides no evidence, other than to list the slavery compromises that were in clu ded in the or iginal Con st it ution .709 Putting aside evidence fr om the Founding Era, a powerful refu tation of Bogus’ thesis can be found in the Appendix to George Ticknor Curtis’ Constitutional History of the United 704. See Wills, supra note 5. 705. House of Representa tives, Ju ly 28, 1789, in ORIGIN, supra note 37, at 680. 706. See Bogus, Hidd en History, supra note 2, at 370. 707. House of Repres ent at ives, Aug. 17, 1789, in ORIGIN, supra note 37, at 695. 708. Bogus, Hidd en History, supra note 2, at 371. 709. See id. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1536 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 States.710 Among Cu rt is’ appen dices is th e full t ext of Anti- Slavery Tracts published around 1833.711 The tract is an abolitionist argument that the United States Constitution “is a pro-slavery instr um ent.”712 The tract analyzes in detail t he text of the Constitution, the intent of the Framers, the im plem en tation of the Const itution by Congress, and the constitutional law decis ion s of t he Supr em e Court, a ll of which support slaver y, a ccording t o the t ract.713 In each of the four parts of analysis, the tract points t o Article I, s ect ion 8, w hich gives Congress t he a ut hority to call forth t he m ilitia to suppress insurrection. The tract even qu otes from the Virginia ra tifying convent ion, in wh ich George N ich ola s a nd J ames Ma dison bot h argued that Article I, section 8 does not diminish a state’s authority to use its own militia to crush an insurrection; rather, the clause allows Congress to call forth the militias from other st ates, in order to ass ist the supp ression of the in su rrect ion .714 Yet wh ile Article I, S ect ion 8 is, quite plausibly, shown to be a proslavery part of the Const itu tion, the Second Amendmen t is never mentioned in that tract.715 If, as Bogus a rgu es, the only important reason for the Amendment was to suppress slave revolts, it is ra ther strange that the antislavery, anticonstitution tract never mentioned the Second Amendment. That one pu rpose of the m ilitia was to suppr ess “servile insurrection ,” and that the Richmond Convention debates discussed th is militia purpose, was not “hidden,” but was perfectly obvious t o antebellum Amer ica . Bu t as for the Secon d Amendment, it wa s, so fa r as the known r ecord indicates, never used to bolster the argumen t (from either the abolitionist or the slave-owning side) that the Const it ution wa s m ea nt to pr otect slavery. To the contrary, the Second Amendment appeared in the antebellum writings of Lysander Spoone r and J oel Tiffany for just the opposite proposition: that the Second Amendment was incompat ible wit h slavery.716 If the Second Amendment were a slaver y-protect in g device, then th e Reconst ru ction 710. See discussion of Curtis supra notes 503-10 an d accompa nyin g text . 711. See 2 CURTIS, supra note 507, at 580. 712. Id. 713. See id. at 580-88. 714. See id. at 584-85. 715. See id. at 580-88. 716. See supra notes 288-309 an d accompa nyin g text . D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1537 Congresses would likely h ave treat ed it with th e disdain reserved for other const it ution al t heor ies —lik e t he doctrin e of nullifica tion and int erposition—tha t h ad been invoked to shield slavery from federal inter ference. Con gress, of cour se, did jus t the opposite; Congress venerated the Second Amendment as a righ t of individual freedmen to protect themselves against the Ku Klux Klan and other descendants of the slave patrols.717 Like Garry Wills’ theory that the Second Amendment was a fraud known only to James Madison,718 Carl Bogus’ Hidden History is contrary to the writings of the Founders and to the int erpretive record of the century following the creation of the Secon d Amendment. One testament to the overwhelming evidence for the individual rights Standard Model is that opponents of the m odel mu st rely on th eories which claim t o read th e secret th oughts of James Ma dison; secret th oughts which are claimed to be more important than what James Madison and his allies actually said and wrote. D. Firearms Policy for the Twenty-first Century Following a period of scholarly neglect in mid-centur y, the Second Amendment is currently enjoying a renaissance of scholar ly interest as the twentieth centur y concludes. As scholars attempt to provide constitutional gu idance for the twenty-first century, it is w orth rem em berin g t he in tellect ual heritage of the nineteen th century discussed in th is article. 1. Who is protected by the Second Amendment? This is the easiest qu estion; the a nswer is “th e people of t he United States.” The right belon gs t o all people, n ot ju st to milit ia members or to state governments. According to Robertson, ther e a re im plicit exce pt ion s, su ch as prisoners. Women were not subject to militia duty in the nineteenth century, but no one appea rs to ha ve ar gued th at women could legally be barr ed from owning a nd carryin g gun s. 717. See supra notes 333-58 an d accompa nyin g text . 718. See Wills, supra note 5. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1538 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 2. Does the Second Am endm ent limit the states? D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1539 This is the har dest question. Presser an d the dicta in Cruikshank su ggest not, bu t these t wo cases are part of a period of constricted Fourteenth Amendment int erpret at ion which the Supr eme Court rejected in the twentieth century. The new research, conducted by scholars such as Richar d Aynes and Stephen H albr ook, into the Congressional creat ion of the Fourteenth Amendment provide additional justification for the rejection of the Slaughter-House/Cruikshank/Presser lin e of cases as inconsist en t wit h the or iginal in ten t of the F ourteenth Amendment—or at least the original intent of the Radical Repu blicans who created and promoted the Amendment. Perhaps the twenty-first century will put a n end to over 125 years of result-oriented Fourteenth Amendment jurisprudence and simply m ake t he whole Bill of Rights enforceable against the states through the Privileges and Immunities Clause. Such a result would be more logically defensible than the current practice, under which incorporated “due process” includes everyth ing in the fir st nin e a rticles of the Bill of Rights except the Second and Third Amendments and the right to grand jury indictmen t. 3. What kind of “arms”? The dominant line of nineteent h centu ry inter preta tion protected ownership only of weapons suitable for “civilized warfare.” This standard was adopted by the U.S. Supr eme Cou rt in th e 1939 United States v. Miller case.719 There, the Cou rt allowed defendan ts who never claimed to be part of any milit ia (they were bootlegge rs) t o raise a Se cond Am en dm en t claim. Bu t the Supr em e Court rejected the federal district court’s det ermin at ion tha t a federal la w requirin g th e registration and ta xat ion of sawed-off shotguns was facially invalid as a violat ion of the Second Amen dment . Rat her , said the Miller Cou rt, a weapon is only cove red by t he Secon d Amendment if it might contribut e to the efficiency of a well- regulated militia. And the Court would not take ju dicia l n otice of militia uses for sawed-off shotguns.720 The case was remanded for trial (at which the defendants could have offered 719. 307 U.S. 17 4 (1939). 720. See id. at 178. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1540 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 evidence th at sawed-off shotguns ha ve ut ility in a m ilitia cont ext ). However, the trial was n ever held because the defendants disa pp ea red wh ile the gove rnmen t’s app ea l of the indictment dismissa l was pending. A minority line of nineteenth century arms rights analysis—adopted in t his cent ur y, for exam ple, by t he Oregon Supreme Court—goes further. This analysis protects not just milit ia-type weapons, but also weapons which ar e useful for personal defense, even if not useful in a military context. Thus, the Oregon state constitution’s right to arms was held to protect the possession of billy clubs and sw it chbla des—w ea pon s which were pointedly excluded from protection by the civilized warfare cases.721 With the civilize d warfare test as the constitutional minimum, efforts to ban machine guns or ordinary guns that look like machine gu ns (so-called “assault weapons”) appear constitutionally du biou s. Th ese r ifles a re sele cted for prohibition because gun control lobbies claim that the rifles are “weapons of war.”722 Th is cla im , if t rue, a mounts t o an admission that the r ifles lie a t the cor e of t he Secon d Amendment. In the 1990s, once people understand that “assault weapons” are firearms that are cosmetica lly threatening, but functionally indistingu ishable from other long guns, th ey may be more willin g t o accord t hese a rms a place within the right to keep an d bea r a rm s. Ma chine gun s, in contr ast, r eally ar e functionally different. Machine guns are rarely used in crime; and lawfully possessed machine guns, which mu st be register ed with the federal government, are essentially absent from the world of gun crime.723 Nevert heless, even many people who 721. See Stat e v. Delga do, 692 P.2d 610 (Or. 1984) (switch blades ); Stat e v. Blocker, 630 P. 2d 824 (Or . 19 81) (b illy clu bs ). 722. S ee, e.g., Cent er t o Pr even t H an dgun Violence, Center Files Suits Against Assault Weapon Mak er For Victims of California Shooting, LEG AL ACTION RPTR. (Sept. 1994) (quotin g from t he lit igation ar m of Ha ndgu n Cont rol: “In filing these lawsuits, the Cen te r h ope s fin al ly t o m ak e t he ma nu fact ur er s of thes e weapons of war and th eir accessories pay for at least some of the cost th eir pr odu cts impose on the victims of gu n v iole nce ”). 723. See David T. Ha rdy, The Firearms Owners’ Protection Act: A Historical and Legal Perspective, 17 CUMB. L. REV. 585, 674 (1987) (citing state me nt by Di re ctor of the Bureau of Alcohol, Tobacco and Firearms that “[r]egistered machine gu ns wh ich are involved in crimes are so minimal so as not t o be considered a law enforcement D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1541 consider themselves strong Second Amendment supporters cannot bear the th ought of a constitutional right to own machine guns. The civilized warfare test, however , offer s n o wa y ou t of this problem. Accordingly, some of the twentieth century Standard Modelers propose altern at ive test s. For exa mple, Don Kates, relyin g on commentary stemming fr om a 1687 English case which allowed the ca rryin g of arms in pu blic places for protection so long as th e circum stan ces of the carr ying were not apt to terrify the populace, proposes a test with a prong that excludes w ea pon s w hich “terrify” the public.724 Steph en Halbrook suggests that “artillery pieces, tanks, nuclear devices and other heavy ordinances are not constitutionally protected” arms, nor ar e “grenades, bombs, bazookas and other devices . . . which have never been commonly possessed for self-defense.”725 But the Halbrook test sidesteps the fact that militia uses, not just personal defense uses, are part of the core of the Second Amendment. Moreover, the Halbrook test could allow governments to ban new types of guns or weapons, since those weapons, being new, “have never been commonly possessed for self-defense.”726 Further, the test could allow Second Amendment technology to be frozen. Such a ban would be like the government claiming tha t new pr oble m”). 724. See Kat es, The Second Amendment: A Dialogue, supra note 1, at 146-48; Kates, Ha nd gun P roh ibit ion , supra note 1, at 261-64. The case which supplies Kates’ rule, Sir J ohn Knight’s Case, 87 En g. R ep . 75 , 90 En g. R ep . 33 0 (Ki ng ’s Ben ch 1 687 ), created th e ru le in t he cont ext of carr ying unconceale d ar ms in public. A r ul e designed to protect people’s sensibilities in public spaces s hou ld n ot b e a ppl ied to t he mere poss ess ion of a wea pon on p rivat e pr oper ty. In a p rivat e sp ace , no on e from “the public” is at risk of being ter rified. Cer ta in m embe rs of th e public may be p ersonally offended by the knowle dge th at som eon e e lse ma y be in pr iva te pos se ss ion of a machine gun, just as other members of the public may be offended that someone may be enga ged in a par ticula r t ype of sex act. Th e legitim at e legal objective of prot ecting public areas from undu e dist ur ban ce is ent irely distin ct from t he illegit ima te (but all too common) objective of satisfying the desire of certain people to eradicate the unseen privat e behavior of other a dults. By exten ding Sir J ohn Knight’s Case from public spaces into private homes, Kates wrongly conflates two distinct legal interests—an inter est in pu blic tranqu ility (an inter est wh ich deserves respect) and an in te re st in pr iva te re pr ession (an in te re st wh ich a tolerant society may give no legal force). 725. Stephen Ha lbrook, What the Framers Intended: A Linguistic Analysis of the S econd Am endm ent Right to “Bear Arms”, 49 LAW & CONTEMP. PROBS. 151 (198 6). 726. Id. at 160. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1542 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 communications devices were unprotected by th e First Amen dment simply because t hey have never before been commonly u sed for sp eech. Just as the civilized warfare test protects firearms that many person s w ant excluded fr om the Second Amendment, the test excludes firearms that many persons want to be included. The civilized warfare cases protected large handguns, but in some applicat ions excluded sm all, h ighly concea lable ha ndgun s. This would suggest that modern ban s on sma ll, inexpensive handguns might not violate the Second Amendment. On the other hand, small han dguns, such as the Colt .25 pistol, were used by the United Stat es military dur ing the Second World War.727 Of cou rse, anyone u sing t his test to make such an argument must also accept the flip s ide of t he civilize d warfare coin: “assault weapon” prohibition is plainly unconstitutional. The nineteenth centur y minority theory, however, would recognize small, relatively inexpensive handguns as highly suita ble for personal defense and accord them Second Amendment protection regardless of their m ilitia ut ility. Twentieth cen tury constitut ional law reflects a special concern for problems of minorities and the poor that was not present in nineteenth century law. Since a small handgun may be the only effective mea ns of p rotect ion wh ich is afforda ble to a poor person, an d sin ce th e poor a nd min orities t end to receive in fer ior police p rotect ion, modern Equal Protection analysis migh t find some problems with banning inexpensive guns, even if one sets aside t he Second Amendment.728 But under th e ma in nineteenth cent ur y line of cases, opponen ts of bannin g small handguns must overcome the presumption in those cases that small ha ndguns are n ot su ita ble militia weapons; perhaps the frequent and successful use of small handguns in twentieth century partisan warfare against the Na zis and other oppressive regimes offers one potential line of argumen t. Twenty-first century jurisprudence might update the civilized warfare test by changin g th e focus from th e milita ry t o the police. The modern American police, especially at th e 727. See Cha rles W. Pa te, Resear chi ng th e Ma rti al .2 5 Colt Pis tol, MAN AT ARMS, Ja n.-Feb. 1995, at 20-29. 728. See T. Markus Fun k, Note, Th e Melting Point Case-in-Point, 85 J. CRIM. L. & CRIMINOLOGY 764 (199 5). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1543 federal level, resemble in many regards the standing army which so concerned th e founders. While the American a rm y is geared towards overseas warfar e, the police are oriented towards the type of internal order function s (e.g., su pp ression of riots) which were among tr aditional m ilitia duties. Accordingly, the twent y-first centur y question “what a re suit able militia- type arms?” might be answered, “arms that are typical of, or suita ble for, police du ty.” By the modernized test, high-quality handguns (both revolvers and semiautomatics) would lie at the core. Smaller, less expensive handguns (frequently carried by p olice officers as back-up weapons, often in ankle holsters) would also pass the test easily. Ordina ry shotguns and rifles (often carried in patrol cars) wou ld also be pr otect ed. Ma chin e gu ns a nd ot her weapon s of wa r are n ot curren tly or dinary police equipment, although they are becoming common in special attack units.729 Fin ally, Noah Webster’s dictionary reminds us that “arms” are not just weapon s. “Arm s” also in clu des d efensive a rmor.730 This suggests very serious constitutional problems with proposals to outla w poss ession of bullet-resistant body arm or by persons outside t he government. 4. Can th e carryin g of w eap ons be controlled? Thirty-one states now have laws allowing ordinary citizens to carry fir ea rms for pr otect ion .731 Thir ty of those stat es requir e a licensing process, and some of them require tr aining. Vermont allows concealed carry without a license. While the concealed carry licensing laws are supported by the National Rifle Association (NRA), other gun rights groups, such as Gun Owners of America (GOA), argue that requiring a license for 729. See DAVID B. KOPEL & PAUL H. BLACKM AN, NO MORE WACOS: WHAT’S WRONG WITH FEDERAL LAW ENFORCEME NT AND HOW TO FIX IT (199 7). 730. See supra note 186 and accompanying text. 731. The states are: Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida, Georgia, Idaho, Indian a, Kentu cky, Louisiana, Maine, Mississippi, Montana, Nevada, New Hampshir e, Nort h Ca rolina , Nort h Da kota , Oklah oma, Or egon, Pe nn sylvan ia, South Car olina , South Dak ota, Te nn essee , Texas, Uta h, Verm ont, Virgin ia, Washington, West Virginia an d Wyomin g. S ee J ohn R. Lott , Jr., Gu ns & V iolen ce: Does Allowing Law-abiding Citizens to Carry Concealed Handguns S ave Lives?, 31 VAL. U. L. REV. 355, 357 n.9 (199 7). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1544 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 concealed carry is no more legitimate than requiring a license to go to church or to buy a book.732 The GOA position is consistent with the first gun rights case decided in t he United St at es, Bliss v. Commonwealth.733 But the jurisprudence of the nineteenth century from then onward is on the oth er side. The weight of nineteenth century precedent wou ld allow sever e r estrict ion s or perhaps even a complete prohibition on concealed carry. Consequent ly, a fair ly adm inister ed licensing system would pose no constitutional problem under the main line of nineteenth century cases. But that same line of precedent also affirms the right to open carry, and some of that precedent su ggests that even a licensin g procedure for open carry would be unconstitutional. In the 1990s, this has u nacceptable policy implica tion s for som e people; th e th ought of seeing a person on the street (other than a policeman) wea rin g a h an dgun in a h olster m ay be dist ur bing. Thus, concealed carry la ws (lik e la ws allowing the sale of a dult magazines and videos in adults-only stores, but bar rin g th e depiction of adu lt content in storefronts or other public venues) refle ct 1990s sensibilities. As a legacy of nineteenth century constitutional int erpret at ion, ma ny sta tes, especially in the West, have n o prohibit ion on open carr y, even th ough th e right to open carry is rarely exercised in urba n area s. Arizon a, however, not only has no law against open carry, but also allows people to exercise that right. If one looks carefu lly, one can fin d or dinary people w alkin g down the streets of P hoen ix or Tucson with unconcealed guns in belt holsters. Although th e issu es of the legitim acy of licensing a nd of concealed vs. open carry will contin ue to be debated, the nineteenth century jurisprudence reminds us that the right to carry in some form is guaranteed by the right to keep and bear arms. 5. Repea ling or ign oring the S econd Am endm ent In the twentieth century, some courts have followed the lead of Buzzard and Salina in rein ter pr et in g t he Secon d Amendment or a stat e ana logue as guar an teeing no right at 732. See Gun Owne rs of America, Why Adopt a Vermont-style CCW Law? (Apr. 199 7), av ail abl e onl in e 1359] SECOND AMENDME NT IN THE 19TH CENTURY1545 all.734 Other courts have gone alm ost as far, recognizing an individual righ t to ar ms, bu t uph olding any gu n law short of a total prohibition on all guns—so long as the law passes the rational basis test, leniently applied.735 Br ooklyn Con gressman Major Owens has int rodu ced legislation to repea l the Second Amendment. The nineteenth century helps us remember why so ma ny otherwise la w-abid ing gu n owners will n ot obey the prohibitory or near-prohibitory la ws m ade possible by the repeal or judicial nullification of the right to keep and bear arms. Cruikshank teaches us that the right to bear arms, while guaranteed by th e Constit ut ion, wa s not creat ed by t he Con st it ution . Rather, it “is found wher eve r civilization exists.”736 Th us, rega rdless of what becomes of the Secon d Amendment, the right to arms will not be negated. In a 1993 article in The Public Interest, att orney Jeffrey Snyder wrote: Those wh o call for the repeal of the Second Amendmen t so that we ca n r ea lly begin con tr olling fir ea rm s betr ay a s er ious misunderstanding of the Bill of Rights. The Bill of Rights does not gr an t r igh ts to t he p eop le, such that it s repe al w ould legit im at ely confer upon government the powers otherwise proscribed...... The repeal of the Second Amendment would no more render the outlawing of firearms legitimate than the r ep ea l of the due pr ocess clause of the Fifth Amen dment would authorize th e gov er nm en t t o im pr ison an d k ill peop le at will. A governmen t that abrogates any of the Bill of R igh ts , wit h or without ma joritarian app roval, forever a cts illegitimately, becomes tyrann ical, and loses the moral right to govern. This is th e u ncom pr omisin g u nd er stan din g re flected in t he warning th at Am er ica’s gun ow ne rs will n ot go ge nt ly into that good, ut opia n n ight: “You can ha ve m y gu n w he n y ou p ry it from my cold, dead hands.” While liberals take this statemen t as evid en ce of th e r et rog ra de , violen t n at ure of gu n own er s, w e gun owners h ope that liberals hold equally strong sentiments about th eir pr int ing pr ess es, w ord pr ocessor s, and television 734. S ee, e.g., United Sta tes v. Wa ri n, 530 F. 2d 103 (6t h C ir . 19 76); Commonwealth v. D av is, 343 N. E. 2d 847 (Ma ss . 19 76). 735. See David B. Kopel et al., A T ale of T hr ee Cities: T he R igh t t o Bear Arm s in State Courts, 68 TEMPLE L. REV. 1177 (1995 ) (discu ssi ng cas es i n C olora do a nd Oh io). 736. United St at es v. Cru ik sh an k, 92 U .S. 542 , 55 1 (18 75). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1546 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 cameras. Th e r ep ublic d ep en ds upon fer ven t d evot ion to a ll ou r fundamental rights.737 This was a radical and provocative sta tement in 1993, but conven tion al wisdom to virtu ally every n ineteenth cent ur y legal commentator and judge who wrote about the right to arms.738 Persons who loathe the idea of firearms possession by anyone except government employees must understand the depth and intensity of the moral position they are setting out to destroy. 6. The First A m endm ent During the nineteenth century, speech in America was gener ally free.739 But th e assassin ation of President McKinley in 1901 sparked increa singly sever e con trols on core polit ica l sp eech—especially speech by socialists and anarchists criticizing the government.740 Repression grew even more severe as a result of World War I, with almost any cr it ic of the war at 737. J effr ey Snyd er, A Nation of Cowards, PUB. INTEREST, Fall 1993, at 40, 54-55 (199 3); cf. Nichola s J . John son, Beyond the S econd Am endm ent: An In divid ual R ight to Ar m s V iew ed T hr oug h t he N in th Am end m ent , 24 RUTGERS L.J . 1 (199 2) (asserting that traditional sou rce s of Nint h Am en dm en t la w—in clud ing Angl o-Amer ican his tor y and natural rights theory—suggest that the r ight to own a han dgun sh ould be considered an un en um er at ed con st it ut ion al ri gh t i f th e right is not located elsewhere in th e Co ns ti tu ti on). 738. For example, Ju dge Lacy, the only nineteenth century judge who ever had to argue for an individual rights view from a dissent ing opinion, wrote: Can it be dou bted, that if the Le gislat ur e, in m omen ts of high politi cal excitement or of revolution, were to pass an act disarm ing the whole popu lat ion of the State, that such an act wou ld be ut ter ly void, not only because it violated the spirit a nd ten or the Const itu tion, bu t because it invaded the original right s of natura l justice? ...... [S]uppose th e Legisla ture pass a n act, th at a man should not keep private arm s in his own house secretly, or about his person conce aled, although they should be in every way n ecessary, in defence of his life, libert y, or propert y. Can it be doubt ed th at such an act wou ld be a p alpa ble infr act ion of the Constitu tion, a s well as an invasion of the na tu ra l right s of society? State v. Buz za rd , 4 Ar k. 18, 36-3 8 (18 42) (L acy , J ., d iss en ti ng ). 739. The grea te st excep tion s we re th e Alie n & Sed iti on Acts (which expired during the J efferson administration), the ante-bellum suppression of abolitionism in the South (one of the abuses that eventually prompted t he Fou rt ee nt h Am en dm en t), and th e Com st ock Act (allow ing crim ina l pr osecu tion for sending sexually-oriented material th rough th e ma il). 740. See David M. Rabban , The Free S peech League, the ACLU, and Changing Con cepti ons of Free Speech in Am erican History, 47 STAN . L. REV. 47, 53 (1 992 ); see also DAVID M. RABBAN , FREE SPEECH IN ITS FORGOTTEN YEARS (199 7). D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1547 risk for feder al prosecution.741 Not u nt il ma ny decades later , in Brandenburg v. Ohio, did the Supreme Court fully defend the core of the First Amendment, allowing speakers to denounce the legitimacy of the central government, even to suggest that it should be overt hr own, so long as the speech did not incite violence.742 Perhaps one reason that it took so lon g for the Court and the Amer ica n pu blic to come t o this view of the First Amendment was that the First Amendment was exam ined in isola tion . Had the First Amendment examination looked next door —at the Second Amendment and its nineteenth century int erpretive tradition—the examination would alm ost imm ediately have d iscover ed that the cor e of the Secon d Amendment wa s r et aining the a bilit y of the Amer ica n people to overthrow a tyrannical central government. If the Framers could recognize that democratic elections, checks and balances, and the rest of the Const itu tion’s safeguards might one da y fail, if the Framers could contemplate the risk that the federal government might one day break the bounds of the Con st it ution and become a tyranny, and if the Framers could guarantee the righ t to resist tyranny by guaranteeing the poss ession of ar ms through the Second Amendment, then a fortiori, speech wh ich mer ely qu estioned the legit im acy of the gover nmen t wou ld not be crimina l. The leading free speech advocates of the early twentieth century understood this point. Before there was an American Civil Liberties Union, there was a Free Speech League, led by Theodore Schr oeder. Schroeder’s group wa s the first in Amer ica n history to defend the rights of all speakers on all subjects, ba sed on the principles of th e First Amendment. Journalist H.L. Mencken wrote that Schroeder had “done more for free expression in Amer ica tha n a ny other.”743 Schroeder’s 1916 book Free Speech for Radicals used the Second Amendment to bolster his argument for a strong First Amendment: [U]nabridged free speech means the right to advocat e t re as on (or lesser crimes) so long as no over t cr im ina l act is induced as 741. See Rabb an , supra note 740, at 53. 742. See Br an de nb ur g v. O hi o, 39 5 U .S. 444 (196 9). 743. Rabban, supra note 740, at 77. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1548 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 a direct conse qu en ce of it s a dv oca cy. W e m u st in qu ir e h ow far this conclusion is confirmed by t he con st itu tion al guarantee to carry arms. Again the obvious import is to promote a state of preparedness for s elf-de fen se eve n ag ainst th e in va sion s of government, because only governments h ave ever disarm ed any cons ide ra ble clas s of peop le a s a m ea ns t oward their enslavement. It rem ains to ask h ow this view is supported by th e h ist oric con flicts pr eced ing ou r Am er ican Revolu tion . Our re volu tion only ex te nde d t he p rin ciple s of freedom of the Eng lish revolution of 1688. At th at tim e, to p reclude the governmen t from going into rebellion against the people and to check its power , th e revolu tion ists pla nt ed t he m selve s firm ly upon th ese pr oposit ions : (1) The illega lity of raising m oney for the use of the Crown without gran t of Parliam ent; (2) The illega lity of the power claimed by the king to suspend laws or the execu tion of la ws ; (3) Th e ill egalit y of a st anding army without consent of Parliament. Here, as in the case of Magna Charta or our Am er ican revolutions, parchment liberties are n ot long respected unless backed up by an ad equ at e p ublic op inion and physical force. So these restrictions like the others wer e ignored when in the cont est for power this seemed desirable. Let us not forget that it has a lways been m er ely a cont est for pow er ra th er th an for principles, though the latt er som etim es furn ished the pretext behind which the lust for power wa s bu lwa rk ed. T hu s it happened that often the precedents and principles of liberty were promoted even by tories. In the E nglish Bill of Rights dated Feb. 13, 1688, a m ong the grie vances char ged an d t o be elim ina ted was the “keeping a standing a rm y with in th e k ingdom in tim e of pe ace wit hout consent of parliament,” which supposedly represents the people. Another complaint wa s t hat of “cau sin g se ver al good subjects, being protestan ts, to be disarmed and employed contrary to la w.” If we a re to er ect t his comp laint aga inst disarming part of the people into a general principle, it must be that in order to maintain freedom we must keep alive both the spirit and t he m eans of resistance to government when ever “govern m en t is in re bellion ag ainst th e p eop le,” that bein g a phrase of the time. This of course included the right to advocate the tim eliness and right of resistance. The re form er s of that pe riod we re m ore or less consciou sly aiming toward t he d estr uction of government from over the peop le in favor of gove rn m en t fr om out of t he p eop le, or as Lincoln put it, “government of, for and by the people.” Those who saw th is clearest were working towards the D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1549 de m ocra tizat ion of the army by abolishing standing arm ies and re pla cin g t hem by a n arm ed pop ula ce defending them selves, not being defended and represse d by th ose in whose name th e defence is made. Upon these precedents, others like them, and upon general principles reformers like DeLolme and John Cartwright made it plain that the right to resist government wa s one protected by t he E nglish Con st itu tion .744 Thus, Schroeder explicated that the Second Amendment righ t to arms and t he F ir st Amen dm en t freedom of sp eech are firmly rooted in the history of America and England. The governments which now rule in America and England were put in place by people who advocated, and then carried out, the overt hr ow of a tyr an nical government . In order to provide long- term security against the recurrence of tyranny, the British and Amer ica n Bills of Rights both pr ovid e for the fr eedom of speech to call for the removal of a tyranny, and the right to arms to carry out that removal.745 Removing tyranny is not, observed Schroeder, any kind of illegitimat e rebellion . Ra ther , t yr annica l “government is in rebellion against the people.”746 744. THEODORE SCHROEDER, FREE SPEECH FOR RADICALS 103-06 (1916). British aristocrat Joh n Ca rt wrigh t wa s an ear ly supp orter of the Amer ican Revolu tion, and an advocate of radical reform in Great Britain, including a P arliam ent elected by universal suffrage. He al so s er ved for se ven te en yea rs as a M aj or of th e Nottinghamshire Militia . See John Cartwright, in ENCYCLOPEDIA BRITT ANIC A (CD-ROM ed. 1997). Thomas J effer son wr ote to C ar tw right t o pr ais e “your val ua ble v olum e on the En glish Con stit ut ion” which “deduced t he Con stit ut ion of th e E nglish na tion from its righ tful r oot, th e Anglo Sa xon.” Thomas J efferson , Letter to Major John Cartwright (Ju ne 5, 1824), available online 1550 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 By the 1930s, wh en the m ajorit y of the Supreme Court was ready to begin defending the First Amendment, Schroeder had retired from the fray, and the Free Speech League had been eclipsed by the more cautious American Civil Liberties Union.747 Would some of the Cou rt’s worst pro-repression decision s perhaps have been decided differently, or on narrower grounds, if t he Court had con sidered the lessons that the Second Amendment teaches about the First Amendment? At the least, some scholars and some portions of the gener al public migh t ha ve better a nd more quickly understood the broad protection that the First Amendment offers to su bversive speech—if free sp eech advocates had con tin ued Th eodore Schroeder’s use of the Secon d Am en dm en t to tea ch abou t the First. 7. The illegality of most federal gun laws The Bill of Rights, includin g the Second Amendment, was never inten ded by its Framers to be the primary safeguard of liberty. In the view of the F ramer s, the m ain pr otect ion of liberty was th e stru cture of th e Const itution itself. The sepa ra tion of powers would prevent the rule by fia t wh ich burdened most of Europe. And the legislat ive branch was granted only the power to legislate on specific, enumerated subjects (e.g., pa ten ts, ba nkr upt cies , in ter st ate com mer ce). Thus, Con gr ess w ould have n o power to cen sor sp eech, t o suppress assem blies, t o outla w guns, or oth erwise in fringe rights.748 747. See Rabb an , supra note 740, at 54. 748. S ee, e.g., THE FEDERALIST NO. 45 (J am es M ad ison ); THE FEDERALIST NO. 85 (Alexander Ham ilton). As Alexander White wrote in reply to the widely-circulated demand for a Bill or Righ ts, a s pr oposed by th e min ority from th e Pen nsylva nia ratifying conve nt ion: There are other t hings so clearly out of the power of Congress, that the bare recital of them is sufficien t, I me an th e “rig ht s of conscience , or religious lib er ty —th e r igh ts of bearing arm s for defence, or for killing game—the libert y of fowling, hunt ing and fish ing—th e righ t of alte rin g th e laws of des cen ts an d dist ri bu ti on of t he effect s of de ceased persons and titles of lands and goods, and the regulation of contracts in the individual Sta tes .” These th ings seems to ha ve been inserted among their [the dissent at th e Pen nsylva nia ra tifying conven tion] objections, mer ely to induce the ignorant to believe that Congress would have a power over such objects and to infer fr om th eir being re fus ed a p la ce in th e Co ns ti tu ti on, t he ir [th e federalists’] intention to exercise that power to the oppression of the people. D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1359] SECOND AMENDME NT IN THE 19TH CENTURY1551 In th e nin eteent h centu ry, St . George Tu cker, William Rawle, and Tim othy Farrar made pr ecis ely this poin t: the Second Amendment (like the First Amendment ) was in a sense superfluous, because Congress ha d no power t o ban gun s in the first place.749 But in the late twentieth century, the structural safeguards of the body of the Constitution have been eliminat ed by judicia l a cqu ies cen ce t o legisla tive and execu tive abu se of power. Th e federal power to regulate interstate commerce (buying and selling things across st ate lines) and t he power to tax have been twisted into a general police power to legisla te on almost any subject—including the power to ban t he simple pos sess ion of fir ea rms by va riou s class es of person s. 750 Thus, th e exercise of power which can be found nowhere in the text of the Constitu tion has becom e com monplace: t he President announces that gun store owners must post or distribute antigun statements in their stores.751 Executive But if th ey h ad bee n a dm itt ed a s r ese rvat ions out of the powers granted to Congress, it would ha ve opened a lar ge field indee d for legal const ru ction: I know not a n object of legislat ion which by a pa rit y of reason , might not be fairly determined within the jurisdiction of Congress. Alexander Whit e, To the Citizens of Virginia, VA. GAZETTE, Feb . 22, 1788, repr in ted in ORIGIN, supra note 37, at 281. As a member of th e Virginia legislat ur e, Whit e “usua lly voted w ith Madison a nd w as on e of his a blest lieut ena nt s,” taking a particular int ere st in issu es of religiou s liber ty. F ree ma n H . Ha rt , Alexander White, in DICT. AM. BIO., supra note 90. As Virginia prepared to debate t he proposed Constitution, White became th e “dominant leader” of federalists in Northwestern Virginia , and was elected as a delegate t o the st at e conven tion. Id. Afterw ar ds, h e was electe d t o th e United States House of Representatives as a member of the first two Congre sses. “He wa s regar ded by h is contem pora ries a s th e outsta ndin g leader of we s t er n Vi r gi n ia a n d o n e o f t h e a bl es t la wy er s in t h e U n it ed St a t es .” Id. 749. See supra text a ccompanying notes 62-63, 96, 426-28. 750. See generally David B. Kopel & Gle nn H. Reynolds, Takin g Federalism Seriously: Lopez an d t he P art ial -Bir th Abor tion Ban, 30 CONN. L. REV. 59 (1997). Of course, man y of the federal laws might properly be enacted as a mat ter of stat e law, and most ar e. Libera ls and conservatives in Washington who insist on using the interstate comm er ce powe r t o en act legis lat ion a bou t loca l m at te rs (e.g., g un possess ion, us e of contr oversia l medicines) should realize what a danger ous game they are pla ying. The thirt een colonies consented to the power of Parliam ent t o regulate external commerce, but went to war against Parliament’s attempt to control int ern al comm erce. See KENT, supra note 464 , a t *2 08 n .(a ). 751. See Post ing of Signs a nd Wr itten N otification t o Pur chas ers of Handgun s, 62 Fed. Reg. 45364-65 (proposed 1997) (to be codified at 27 C.F.R. pt. 178) (requiring gun stores to post a sign, or give customers a brochure statin g, inter alia, that “Handguns are a leading contributor to juvenile violence and fatalities” and that “Safely st ori ng an d lock in g h an dgu ns aw ay from chi ldr en can he lp en su re comp lia nce with Fede ra l law”—even th ough t her e is no feder al law requ irin g gun owners to l ock D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1552 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 branch officia ls in the Burea u of Alcohol, Toba cco and Firearms (BATF ) from time to time announce that an additional type of weapon has been subjected t o near-pr ohibitory federal controls, thanks to BATF’s reint erpret at ion of a statute or regulation.752 The Federal Trade Commission, mean while, is ser iously contemplating a request th at it issue an order prohibit ing gu n manufacturers from mentioning self-defense in their advertising.753 All this is normal constitutional law in the lat e twentieth century, but the nineteenth century commentators bring us back to first principles and r emind us that all this federal “law- making” about guns is not really law-making at all. It may have the appearance of law (written down in statute books or other official recor ds ), a nd t her e m ay be the for ce of com pu lsion behind the “laws,” but the Framers and the nineteenth century had a word for the exercise of power which was never granted. That word was not “law.” The wor d wa s “usu rpat ion.” Toward the end of the twentieth century, the Supreme Cou rt ha s begun t o take some tent at ive steps t owards r estoring the structural safeguards of th e m ain body of the Constitution.754 The steps ar e hesitant, an d there is great fear of upsetting precedent. But precedent which authorizes the violation of the text of the Constitution deserves no respect. Beginn ing in th e 1930s, and with increasing confidence in subsequent decades, the Supr eme Court began to abandon precedent from the 1900s, 1910s, and 1920s which had constricted the First Amendment. The Court moved forward by handguns, or to take affirmative steps to prevent children from obtaining handguns). 752. S ee, e.g., Robert W. Ha usm an , BAT F Says W allet Holster Sale Alone May be an N FA Violat ion , GUN WEEK, Mar. 1, 1998, at 3; Letter from Edwa rd M. Owen, Jr., Chief, Firearms Technology B ran ch, BA TF, to Bob Gortz, Bob Gort z Gu n S ales (Sept. 30, 1996) (on file with a ut hor) (following BATF’s determ ination th at wallet holsters are covered by the “any other weapon” language of the NFA, BATF decided that wa llet s d esign ed t o car ry a con cea led ha nd gu n a re now st ri ctl y controlled by the National Firearms Act); see also Let ters to the E di tor, MACHINE GUN NEWS, Ju ly 1996, at 60 (sta tin g th at a licens ed firea rm s dea ler reported th at BATF confiscated a handgun con ta in ed in a w al let holst er ). 753. See Center to Prevent Hangun Violence et al., Petition to the Federal Trade Com mi ssi on (Feb. 14, 1996) (visited Mar. 16, 1998) 1359] SECOND AMENDME NT IN THE 19TH CENTURY1553 returning to th e origin al F irst Amendment a na lysis, a s articulated by, am ong others, St. George Tu cker. Per ha ps in th e twenty-first century, the Court will continue to restore the structure of the Constitution, so that the in voca tion of the First, Second, or oth er Amen dments will become less n ecessar y, as the feder al sph er e of a ction shrinks to constitutional boundaries. VIII. CONCLUSION The historical record shows that, while the boundaries of the Second Amendment were the subject of vigorous discussion during the n inet eenth cen tury, t he cor e m ea ning of the Amendment was well-settled: the Standard Model of the late twentieth cen tury sch olars was t he Standa rd Model of the nineteenth century. For all practical purposes, it was the only model. Every known scholarly commentator who said anything about the Second Amendment, all six Supreme Cour t cases, an d every judge except for one in Arkansas treated the Second Amendment as an individual right. These Standard Model sources—like their twentiet h cen tury successors—disagreed about important features of the Second Amendment, including its application to the states and the types of arms whose possession is protected. Some analysts treated the Amendment in desultory fashion, while others celebra ted it. Some cases and commentators saw the right as intended solely t o allow resistance to oppr essive government, while other s saw the right as also encompassing defense against individual criminals, and not just criminal governments. But ther e is agr eemen t on one fundam ent al: the Secon d Am en dm en t recogn izes a righ t of individual Americans to own guns and edged weapons suitable for resist ing t yra nn y, and protects that right from infringement by the federal gove rnmen t. H owever confusing t he Secon d Amendment may have become to Americans in the twentieth century, the core of the Amendment’s meaning was readily apparent in t he nin eteenth cent ur y. In the late t wentieth cent ury, scholars are perfectly free to argue against the Standard Model of the Second Amendment on the bas is of chan ged circum stan ces. For exam ple, Dona ld Beschle reasons th at the Second Amendment should be reconstrued into a right of personal security, and that righ t can D:\ 1998-4\ FINAL\ KOP-FIN.WPD Ja n. 8, 2001 1554 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998 be protected by banning all guns.755 Several schools of constitutional interpretation suggest that the established int erpretive history of constitutional pr ovisions may be ignored if the history impedes the a chievement of desira ble governmental policies. Perhaps one could argue that the nineteenth cen tury wa s t he victim of a massive fraud (apparently per pet ra ted by St. George Tucker an d William Rawle) wh ich fooled eve ryon e fr om J ustice Story onward about the meaning of the Second Amendment.756 Even within the limit s of a nineteent h centu ry inter pretive par adigm, ther e is much useful precedent for advocates of restrictions on various types of concealable wea pon s, and for pr ohibition s on the carryin g of concea led weapon s. But it can no longer be argued—at lea st not by a nyon e constrained by respect for the truth—that the Second Amendment has never been considered an individual right. The anti-individual view of the Second Amendment was, at most, a very lonely voice against an overwhelming ninet eenth century individual rights consensus. In light of the nineteenth century record, no twent ieth or twenty-first centu ry scholars sh ould claim that the St anda rd Model in dividual righ ts view is a fraud or a myth. 755. See Dona ld Besch le, R econs id erin g th e S econd Amendment Constitutional Prot ection for a Right of Security, 9 HAMLINE L. REV. 69 (1 986 ). 756. Madison, J effe rs on, Ada ms, and ma ny oth er F ound ers would a ppea r t o have been complicit in t he fra ud, sin ce the y were alive a nd a ctive in public affairs when Tucker an d Rawle publish ed th eir well-kn own books. Th is frau d th eory is no less preposterous than Garry Wills’ the ory th at th e Se cond Ame nd me nt is a hoa x perpetr ated by J am es Ma dison. See generally Wills, supra note 5.