Seton Hall Constitutional Law Journal
Fall, 1995, Page 101
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE CHANGING MEANING OF THE RIGHT TO BEAR ARMS
Sayoko Blodgett-Ford *
I. INTRODUCTION .........................................................................................103 II. THE METHOD: DUALISM AND SYNTHESIS ......................................109 III. THE RIGHT TO BEAR ARMS IN THE
FEDERALIST FRAMEWORK ......................................................................111
A. DIVISION OF POWER BETWEEN THE FEDERAL
STANDING ARMY AND THE STATE MILITIAS.................................112
B. SEED OF AN INDIVIDUAL RIGHT TO BEAR ARMS ....................115 IV. THE RIGHT TO BEAR ARMS IN THE RECONSTRUCTION ..........116 A. INTENT OF THE FRAMERS OF THE FOURTEENTH
B. HISTORICAL CONTEXT....................................................................119 C. THE FOURTEENTH AMENDMENT IN THE COURTS...................122 D. SEED OF REVERSE INCORPORATION..........................................129 V. THE RIGHT TO BEAR ARMS IN THE NEW DEAL ...........................130 A. EXPANSION ......................................................................................130 B. FEDERAL FIREARMS LAWS IN THE COURTS............................133 VI. SYNTHESIS: THE RIGHT TO BEAR ARMS TODAY ......................143 A. SYNTHESIS APPLIED: THE TRANSFORMATION OF THE
1. MODERN SUBSTITUTES FOR NATIONAL DEFENSE........146 a. NO PRIVATE MILITIAS.....................................................146 [Page 102] b. CHECKS ON THE USE OF FEDERAL
2. MODERN SUBSTITUTES FOR DIRECT CITIZEN
PARTICIPATION IN GOVERNMENT..........................................155
B. SYNTHESIS APPLIED: GUN CONTROLS......................................158 1. FOUR PLAUSIBLE RESULTS OF SYNTHESIS.....................159 a. REPEAL OF THE RIGHT TO BEAR ARMS...................160 b. EXPANSION OF THE RIGHT TO BEAR ARMS............162 c. THE RIGHT TO BEAR ARMS AS A WEAK
LIMIT ON STATE GUN CONTROLS AND A
STRONG LIMIT ON FEDERAL GUN CONTROLS..........164
d. THE RIGHT TO BEAR ARMS AS A STRONG
LIMIT ON STATE GUN CONTROLS AND
WEAK LIMIT ON FEDERAL GUN CONTROLS.............167
2. APPLICATION OF THE BEST RESULT OF
SYNTHESIS TO MAJOR FIREARMS LAWS............................173
a. BANS ON CERTAIN WEAPONS....................................173 b. LICENSE REQUIREMENTS...........................................178 c. FELON-IN-POSSESSION LAWS....................................181 d. WAITING PERIODS........................................................184 VII. CONCLUSION .....................................................................................187
THE CHANGING MEANING OF THE RIGHT TO BEAR ARMS
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . . 
The final term of the high contract was for liberty and the pursuit of happiness. We have learnt a great deal of both in the past century. We know that individual liberty and individual happiness mean nothing unless both are ordered in the sense that one man's meat is not another man's poison.
Although the issue of gun control has sparked a rich public policy debate, academic literature on the Second Amendment is remarkably sparse, [Page 104] especially when compared to the number of publications on the First Amendment. Legal commentators usually focus on the original meaning of the Second Amendment, and conclude either that the Second Amendment gave every citizen an individual right to bear arms or guaranteed a collective right for citizens to bear arms as part of state militias. Case law on the Amendment is virtually nonexistent, in part because the Supreme Court has never reexamined its early refusal to apply the Amendment to the states. The Supreme Court decisions on this question, however, were resolved [Page 105] long before any provisions of the Bill of Rights had been "incorporated" through the Fourteenth Amendment, and recent scholarly research demonstrates that the framers of the Fourteenth Amendment included the right to bear arms in their definition of the "privileges or immunities" of citizenship that no state shall abridge. As the recent controversy over the constitutionality of the Gun-Free School Zones Act[Page 106] and the dispute concerning the proper role of private militias demonstrate, the time is ripe for a reconsideration of this issue.
Courts and commentators have experienced great difficulty in developing a useful approach to the interpretation of the right to bear arms. Proponents of one school of constitutional theory use a clause-bound historical method, which propels them deep into English and colonial American history in an attempt to decipher the meaning of the words in the Second Amendment. This theory is valuable, but incomplete because it fails to recognize the constitutional changes of the modern era. Followers of John Hart Ely's "representation-reinforcing" approach to constitutional interpretation, on the other hand, have nothing to say about the right to bear arms so long as the political process, through which any restrictions on that right are enacted, is not tainted by blockage between the representatives and their constituents.
This Article will demonstrate that the application of a dualistic and synthetic approach to constitutional interpretation provides new insight into the proper meaning of the right to bear arms in American constitutional law today, and does so without rendering the text of the Second Amendment surplusage. Under a dualist theory of American government, the process of constitutional lawmaking is qualitatively different from the ordinary process of enacting statutes. "We the People" must endorse a new constitutional solution, or a more sweeping new constitutional regime, before binding representatives during later periods of normal politics when the vast majority of citizens concentrate on their private lives rather than on public discourse. Under the dualist theory, there have been three constitutional regimes in the American republic: the Founding, the Reconstruction, and the [Page 107] New Deal. As an analysis of the meaning of the right to bear arms during the three regimes will illustrate, the Reconstruction Republicans and the New Dealers made major revisions to the preceding system of government while leaving many essential elements intact. Constitutional synthesis is the attempt to combine the three regimes to apprehend the meaning of a given constitutional right in the modern era. In order to synthesize the regimes, however, it is necessary to understand the roots of each regime.
Part III will focus on the primary purpose of the Second Amendment, that of protecting the ability of state militias to deter tyrannical use of the federal standing army while affording citizens the opportunity for direct participation in government. While there is textual and historical support for the claim that the Second Amendment also operated to guarantee an individual right to bear arms, that was not the primary purpose of the Amendment.
Part IV will argue that the framers of the Fourteenth Amendment read the Second Amendment to guarantee an individual right to bear arms for self-defense and believed this right was a privilege or immunity of citizenship protected, at a minimum, from infringement by the state governments. Moreover, the Reconstruction Republicans believed that the federal government could not abridge the privileges or immunities of citizenship, including the individual right to bear arms. Thus, the Fourteenth Amendment, which appears on its face to reach only state action, also can be read to have changed the meaning of the Second Amendment and thereby limit federal action.
Part V will discuss the New Deal expansion of federal power to regulate crime. In response to the rise of the activist regulatory state, individual rights such as the right to free speech expanded to counteract the influence of a powerful national government, just as the state militias had served as a check on the federal standing army during the Founding. [Page 108]
Part VI will integrate the constitutional solutions of each era ¾ the Founding, the Reconstruction, and the New Deal ¾ in order to examine the meaning of the constitutional right to bear arms in the modern era. First, the post-New Deal functional substitutes for the republican militia ¾ the National Guard and federal armed forces ¾ have replaced the militia in the role of defending the United States from foreign invaders and from domestic insurrections. By contrast, the Reconstruction and New Deal substitute for the role of the militia, allowing direct citizen participation in government, lies in strengthened First Amendment rights to free speech, free press, and peaceable assembly. Second, with respect to federal and state gun controls, there are four plausible syntheses of the Founding, the Reconstruction and the New Deal: (1) repeal of the right to bear arms; (2) expansion of the right to bear arms; (3) weak limits on state gun controls and a strong limit on federal gun controls; and (4) strong limits on state gun controls and a weak limits on federal gun controls. The best constitutional synthesis would apply strict scrutiny to state gun controls and intermediate scrutiny to federal gun controls. [Page 109]
II. THE METHOD: DUALISM AND SYNTHESIS
The goal is to apply the dualistic and synthetic method of constitutional analysis developed by Bruce Ackerman. Dualism may be characterized as a two-track system of politics: constitutional and normal. The basic premise is that it takes a significant amount of energy to develop and propose a change to the Constitution. Then, additional energy is needed to defend and refine that proposal during debate with other citizens. Finally, even more energy is necessary to persuade a sufficient number of fellow citizens to actively support the change and to preserve it for posterity. Citizens rarely will have the energy or desire to actively engage in constitutional politics for a sustained period because they also have to conduct the daily business of life. As a result, there have been few changes to the Constitution and even fewer systemic revisions of the constitutional framework. Small changes in the Constitution, such as the Twenty-sixth Amendment, which preserves the right of all citizens over eighteen to vote, must be distinguished from more sweeping regime-changes, such as the Reconstruction and the New Deal.
In addition, a new constitutional solution or regime cannot legitimately be nullified during periods of normal politics when citizens periodically elect representatives to pass new laws, but lack widespread and heartfelt commitment to change at the constitutional level. Thus, federal courts act appropriately to preserve the existing constitutional regime when they hold a statute invalid that conflicts with that regime.
One of the most controversial aspects of dualism is that it allows amendment of the Constitution through mechanisms that are functionally equivalent, but not identical, to the Article V amendment process. This alternative amendment process was employed during the Reconstruction, when confederate states were given the status of states for the ratification of the Thirteenth Amendment but not the Fourteenth Amendment, and during the New Deal, when an institutional dance between the President, Congress, and the Supreme Court replaced state ratification altogether. As a result,[Page 110] a dualist is interested in historical data, but only insofar as it may evidence a period of intense constitutional activity by the citizenry en masse, or of the meaning of the constitutional change the citizenry collectively wrought. Thus, a historical practice, no matter how entrenched, has no constitutional force unless formally recognized by the citizenry and their representatives to be of constitutional dimension.
"Synthesis" is the attempt to understand each constitutional regime on its own terms, and then resolve conflicts between the different regimes without making a judgment on the merits of any individual regime. The goal is not to decide in advance what the best constitutional solution would be, and then to reach that result by interpreting the historical texts and exegeses in a favorable manner. That type of analysis may be appropriate when we decide what the constitutional solution for the next era should be, but it is incorrect when synthesizing past regimes.
Borrowing from a general rule of statutory construction, a new constitutional regime cannot repudiate an entrenched constitutional regime unless its proponents say so clearly and explicitly. As Justice Miller explained in the Slaughter-House Cases, when one interpretation of the new constitutional regime "radically changes the whole theory of the relations of the state and federal governments to each other and of both these governments to the people," that interpretation will be rejected in favor of a narrower interpretation "in the absence of language which expresses such a purpose too clearly to admit of doubt." Legislative history, and Presidential speeches in the case of the New Deal, should be consulted in order to determine whether the language of the new constitutional regime, which may be phrased in abstract terms, expresses such a purpose clearly and explicitly.
Unlike statutory construction, however, where it is easy to determine whether an act has been formally ratified, the extent of private citizen participation and approbation during each constitutional regime should be taken into account in deciding "close calls." Therefore, the constitutional principles [Page 111] of the New Deal should be given more weight, not only because they were last in time, but also because, of the three constitutional regimes, the New Deal was supported by the largest and most mobilized body of private citizens.
It is not necessary to accept Ackerman's theory in toto, or to grasp the nuances of the dualistic and synthetic method in order to appreciate the value of a dualistic and synthetic interpretation of the right to bear arms. All that is required is the recognition that there were at least three significant periods in American constitutional politics that have had an enormous influence on the landscape of constitutional law today: the Founding, the Reconstruction, and the New Deal. This much is relatively unobjectionable. The more difficult question concerns the criteria needed to identify a new constitutional solution or regime, and, relatedly, whether each constitutional era was equally legitimate, particularly where the text of the Constitution was reinterpreted, but not physically changed, as was the case during the New Deal. Even a skeptical reader must recognize that dualism provides a fairly accurate description of the constraints placed on the legal and political community today, regardless of its normative value.
III. THE RIGHT TO BEAR ARMS IN THE FEDERALIST FRAMEWORK
The Second Amendment guarantees that: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  In order to appreciate the meaning these words evoked in the minds of those who ratified the Second Amendment, it is necessary to understand the political debate that was its genesis. The focus of that debate was the division of power between the federal government and the state governments.[Page 112]
A. Division of Power between the Federal Standing Army and the State Militias
Many of the Founders fiercely opposed the establishment of a federal standing army. Federalists, however, were adamant that the central government needed military power in order to secure the union. The military was a topic of heated debate at the constitutional convention and resulted in the compromise of Article I, section 8, which allowed Congress to keep a standing army but reserved some degree of state control over the militia, and Article I, Section 10, which prevented the states from maintaining standing armies.
State militias were viewed as crucial to counteract the influence of the federal standing army, yet some feared the federal government would attempt to disarm the state militias. Thomas Jefferson wrote to James Madison in December [Page 113] of 1787 and complained that the proposed Constitution omitted "a bill of rights providing clearly and without aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, [and] restriction against monopolies . . . ." Samuel Adams, representing Massachusetts, argued, "the said [C]constitution shall never be construed to authorize Congress . . . to prevent the people of the United States who are peaceable citizens from keeping their own arms . . . ." New Hampshire demanded that "Congress shall never disarm any citizen except such as are or have been in actual rebellion."
One widely-circulated proposal for an amendment clearly would have established an individual right to bear arms for self-defense. A minority of the Pennsylvania ratifying convention proposed:
[T]he people have a right to bear arms for the defense of themselves and their own state, or the United States, or the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed or real danger of public injury from individuals . . . . 
It is difficult to understand why some variation of this proposal was not adopted if the drafters of the Second Amendment wanted to preserve an individual right to bear arms for self-defense. David Hardy points out that the Senate also rejected a proposal to add the phrase "for the common [Page 114] defense" to the Second Amendment, but this phrase was redundant because the phrase "security of a free State" already was in the Amendment. Hardy also notes that Richard Henry Lee, who was a member of the first Senate when it extensively revised the Second Amendment, wrote that "the Constitution ought to secure a genuine [militia] and guard against a select militia by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms . . . ." This, however, was an expression of the Anti-Federalist's fears that Congress might raise a select militia and dismantle the state militias. In fact, Congress made no serious effort to establish the national armed forces until the 1900's.
Despite the strong arguments of those scholars who believe that the Second Amendment guaranteed an individual right to bear arms for self-defense, the ratification debates between the Federalists and the Anti- Federalists indicate that the core meanings of the Second Amendment are populism and federalism in republican theory. As Elbridge Gerry stated during the congressional debate over the Second Amendment: "What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty." [Page 115]
B. SEED OF AN INDIVIDUAL RIGHT TO BEAR ARMS
During the first constitutional regime, the primary focus of the Second Amendment was on the protection of the state militias, where private citizens could be trained to act in concert to deter aggression by a tyrannical federal government. In practice, however, the Federal Constitution, including the Second Amendment, also protected the ability of those private citizens to bear arms for their own lawful purposes because Congress lacked jurisdiction to regulate arms-bearing in general. Thus, a five-day federal waiting period would have been as unconstitutional as a Congressional law providing that state militia members could not carry firearms at any time. As David Yassky concluded in his analysis of the First Amendment, the Bill of Rights was "a set of structural protections for the federal system" that guaranteed liberty "not because it listed uninfringeable rights but because it set out areas that were left entirely to the states' discretion."
Nevertheless, just as the First Amendment contained the seed of an individual right to free speech that would later be read expansively to restrict both the state and federal governments, the Second Amendment also contained the seed of an individual right to bear arms. The earliest judicial interpretation of the scope of the Second Amendment illustrates this fact. In Nunn v. State, the Georgia Supreme Court reasoned that the Second Amendment restricted state as well as federal action and stated that: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree . . . ."
The court stated that the application of a state law to prohibit the wearing of concealed weapons would be constitutional but held that the use of the law to prohibit wearing of weapons openly on the person violated the Second Amendment. The United States Supreme Court, serving its preservationist function, later held that the Second Amendment restricted [Page 116]only the federal government, not the states, and that it protected only arms that bear a "reasonable relationship to the preservation or efficiency of a well regulated militia." As will be shown in Part IV, however, the Reconstruction Republicans saw only an individual right to bear arms in the Second Amendment.
IV. THE RIGHT TO BEAR ARMS IN THE RECONSTRUCTION
Section 1 of the Fourteenth Amendment to the United States Constitution provides:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The framers of the Fourteenth Amendment repeatedly stated that the right to keep and bear arms was a privilege or immunity of citizenship that the states could not infringe. Adhering to precedent and judicial lived experience, the Supreme Court incorrectly neutralized the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter- House [Page 117] Cases and in Bradwell v. State. Although the Court has incorporated other provisions of the Bill of Rights through the Due Process Clause of the Fourteenth Amendment,  it has not yet incorporated the Second Amendment.
A. INTENT OF THE FRAMERS OF THE FOURTEENTH AMENDMENT
The framers intended that the Civil War Amendments would repudiate the infamous Dred Scott decision and allow the federal government to enforce laws such as the Freedman's Bureau Bill of 1866, which gave blacks, among other things, "full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms."
Four prominent legislators explicitly demanded that the states not be allowed to infringe the right of all citizens to bear arms. Senator Pomeroy of Kansas, an abolitionist, believed that one of the essential safeguards of liberty in the Constitution was the right to bear arms. Congressman Roswell Hart of New York demanded that the rebellious southern states establish "a government whose citizens shall be entitled to all privileges and immunities of other citizens" and specifically mentioned the Second [Page 118] Amendment in his demand. Congressman Sidney Clarke of Kansas wanted Congress to provide "a more perfect freedom and a grander nationality" and "an enlarged liberty to the citizen." He believed that Alabama and other rebellious states had violated the Second Amendment by denying blacks the right to bear arms. Senator Sumner of Massachusetts presented a petition "from the colored citizens of the State of South Carolina" asking for "constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press."
Two prominent figures in the framing of the Fourteenth Amendment¾ Representative John A. Bingham, who drafted the Amendment, and Senator Jacob Howard, who presented the Fourteenth Amendment on behalf of the Joint Committee, formed to decide whether the southern states should be readmitted¾believed that the Amendment would prevent state governments from infringing the right to keep and bear arms. Representative Bingham described the Fourteenth Amendment as "a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the Bill of Rights as it stands in the Constitution today." Senator Howard noted that "the personal rights guarantied and secured by the first eight amendments of the Constitution; such as . . . the right to keep and bear arms" must be included in the "privileges and immunities" of citizens. Senator Howard and other Republicans believed the Fourteenth Amendment was needed to enable Congress to enforce the Civil Rights bills without being thwarted by the courts. [Page 119]
The statements of Senator Howard, Representative Bingham, and the other legislators demonstrate that the framers of the Fourteenth Amendment clearly intended to apply the Second Amendment to the states. The question then becomes what the Republicans perceived as the fundamental right guaranteed by the Second Amendment: the right of the people to keep and bear arms as part of state militias, or the right of every citizen to keep and bear arms in order to defend his person and property. The historical context of the Fourteenth Amendment demonstrates that the framers intended the latter interpretation.
B. HISTORICAL CONTEXT
Before the Civil War, many state laws restricted arms-bearing by freed blacks and/or slaves. An 1825 Florida statute is a particularly disturbing example. The Act provided that white citizen patrols "shall enter into negro houses and suspected places, and search for arms and other offensive or improper weapons, and may lawfully seize and take away all such arms, weapons, and ammunition . . . ." Mob violence against blacks was prevalent in northern cities as well, where racism was fed by economic competition between blacks and whites, and massive segregation made black [Page 121] communities easy targets.  In response, black men formed private militia groups and experienced some success in preventing or halting riots, at least until they were disarmed by state authorities.
After the Civil War, many confederate states attempted to re-enslave blacks through the use of statutes commonly referred to as the Black Codes. The basis for such laws was illustrated by the notorious pre-Civil War decision Scott v. Sandford, in which Justice Taney explained that one reason freed blacks could not be citizens of the United States was because, as citizens, they would be "entitled to the privileges and immunities of citizens [, which] would exempt them from the operation of the special laws and from the police regulations which [Southern states] considered to be necessary for their own safety." As a result, freed blacks would be able to "keep and carry arms wherever they went."
Justice Taney's parade of "horribles" is an example of the then widely-held view that free blacks were dangerous and local authorities were benevolent protectors. Accordingly, blacks could not be allowed to bear arms. The subjugation of blacks continued after the Civil War through state laws that denied blacks basic rights, such as the freedom to move, to contract, to own property, to assemble, and to bear arms. For example, a Louisiana statute of 1865 prohibited any black "who is not in the military service" from carrying firearms or other weapons "without the special [Page 121] permission of his employers, approved and endorsed by the nearest and most convenient chief of patrol."
The violence used to perpetuate the subjugation of blacks caused some blacks and abolitionists to arm themselves in order to defend themselves against local authorities and mobs of "upstanding" citizens. For example, the police and a white mob killed forty delegates and their supporters at an 1866 constitutional convention in New Orleans convened for the purpose of giving blacks the right to vote in state elections.
Unlike the framers of the Second Amendment, the framers of the Fourteenth Amendment were not concerned with protecting state militias, which were often the greatest culprits in the violence against blacks and abolitionists. As Senator Lyman Trumbull stated in debates over the Freedmen's Bureau Bill, "[n] early all the dissatisfaction that now exists among the freedmen is caused by the abusive conduct of [the Mississippi] militia[,]" who often would "hang some freedman or search Negro houses for arms." Such conduct was particularly galling when the militia members were confederate veterans in uniform. [Page 122]
Representative Henry J. Raymond explained, during debate over the Civil Rights Bill, that a citizen "has a defined status; he has a country and a home; a right to defend himself and his wife and children; a right to bear arms. Of course, many Republicans hoped that it would not be necessary for black freedmen to bear arms for self-defense.
The framers' statements, when considered in the proper historical context, demonstrate that the framers of the Fourteenth Amendment intended to prevent the states from abridging the privileges or immunities of citizens, including the individual right to bear arms for defense.
C. THE FOURTEENTH AMENDMENTIN THE COURTS
One of the first federal cases directly involving the Fourteenth Amendment was easily resolved because it concerned precisely the type of conduct the Republican Congress had sought to prevent. In United States v.[Page 123] Hall, the defendants were indicted under a federal statute for conspiring to deny black freedmen their rights of freedom of speech and assembly. The defendants had argued that such rights were not privileges or immunities of citizens of the United States, and therefore, the federal government lacked the power to punish them. The court rejected this argument and held that the statute was constitutional because the Fourteenth Amendment gave citizens of the United States all the privileges and immunities secured by the first eight amendments.
The evidence presented in Part IV above demonstrates that Judge Woods' proclamation was an accurate description of the intent of the framers of the Fourteenth Amendment. The Supreme Court, however, did not read the Privileges or Immunities Clause as broadly as did Judge Woods.
The Court first considered the meaning of the Privileges or Immunities Clause in the Slaughterhouse Cases, which challenged a Louisiana law requiring all butchering in the New Orleans area to be performed in a single slaughterhouse run by a private corporation. The plaintiffs were independent [Page 124] butchers who claimed that the law would ruin their business. The Court held that the statute was constitutional. Justice Miller, writing for the majority, explained that the "most cursory glance" at the Civil War Amendments disclosed "a unity of purpose, when taken in connection with the history of the times," to prevent discrimination against blacks but not to protect fundamental rights of a citizen of a state against the legislative power of his own state. As for the privileges or immunities guaranteed United States citizens by the Fourteenth Amendment, the Court stated that these included the right to go to and from the seat of government, free access to the seaports, protection on the high seas or when under the jurisdiction of foreign governments, and the right to use navigable waters.
The Court's explanation was inconsistent with the view held by the framers of the Fourteenth Amendment, namely that the privileges or immunities of citizens included the rights listed in the first eight amendments to the Constitution. The Court's view is understandable, however, because white butchers threatened the entire federalist system.
The Slaughter-house decision was further cemented in the contemporaneously decided case of Bradwell v. State. The Supreme Court rejected Myra Bradwell's claim that the Illinois bar's refusal to admit [Page 125] women violated the Fourteenth Amendment. The Court held that the right to practice law in state courts was not a privilege or immunity of citizens of the United States but instead was related to state citizenship. Thus, the Court concluded that the states had unfettered power to regulate the practice of law.
The holdings in the Slaughterhouse Cases and Bradwell may be justified by the fact that those cases involved butchers and a female lawyer rather than former slaves. However, even in an area in which the framers had expressly stated that the Fourteenth Amendment would apply, namely protection of the rights of black freedmen, the Supreme Court refused to recognize or give effect to their intent.
One of the purposes of the Fourteenth Amendment was to give Congress the power to stop violence against blacks, and, for a very short period of time, this purpose was fulfilled. The Ku Klux Klan was extremely powerful in the 1870's and frequently was responsible for the assassination of black leaders and Republicans. In response, Congress passed the "anti-Klan statutes" and President Grant suspended the writ of habeas [Page 126] corpus in nine South Carolina counties. More than five thousand Klansmen were arrested under the new statutes and fifty-five Klansmen were found guilty of violating civil rights.
In United States v. Cruikshank, however, the Supreme Court held one of the anti-Klan statutes unconstitutional. The defendants were white men who had killed more than sixty blacks. They were charged with conspiring to prevent blacks from exercising their right to assemble and their right to bear arms, among other rights.  The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, "[f]or their protection in its enjoyment, the people must look to the States." The sad consequences of this turn of events is evident in the lynchings of at least 3,446 blacks between 1882 and 1968.
The framers of the Fourteenth Amendment would have approved of the analysis in Hall and disapproved of the Court's narrow construction of the Privileges or Immunities Clause in the Slaughterhouse Cases, Bradwell and, perhaps, Cruikshank. Yet, despite the fervor Republicans initially brought to the cause of equality, the promise of the Civil War amendments was abandoned only a few years after Hall was decided. In exchange for victory. [Page 127] in the election of 1877, the Republicans withdrew federal troops from the South.
"More and 'more Republicans began to emphasize the issue of states' rights."' Consistent with these political forces and the evisceration of the Privileges and Immunities Clause by the Slaughterhouse Cases and Bradwell, in Presser v. Illinois, and Miller v. Texas, the Supreme Court held that the Second Amendment did not apply to the states through the Fourteenth Amendment. [Page 128]
The Fourteenth Amendment eventually was given new life in a series of Supreme Court decisions holding that provisions of the Bill of Rights deemed "fundamental to the American system of justice" applied to the states through the Due Process Clause. Nevertheless, the Second Amendment right to bear arms, the Third Amendment protection against quartering of soldiers in private homes, the Fifth Amendment grand jury guarantee, and the Seventh Amendment guarantee of a jury trial in civil cases have not been applied to the states.
Despite the Supreme Court's holdings, the historical evidence establishes that the framers of the Fourteenth Amendment intended to prevent the states from infringing the privileges or immunities of citizens, including the right to bear arms. As Akhil Reed Amar has explained, the Second Amendment, as understood by the Reconstruction Republicans, should be incorporated through the Fourteenth Amendment Due Process Clause. [Page 129]
D. SEED OF REVERSE INCORPORATION
If the Supreme Court gives effect to the intent of the framers and applies the Second Amendment to the states, it must decide whether there also is an individual right to bear arms that the federal government cannot infringe. There is a strong "original intent" case for reverse incorporation of an individual right to bear arms. The framers of the Fourteenth Amendment believed that the federal government could not abridge the privileges or immunities of citizenship. Similarly, the framers believed that the Due Process Clause of the Fifth Amendment required that the federal government grant persons in its exclusive jurisdiction equal protection of the laws. Even the notorious Dred Scott decision recognized that freedmen would be entitled "to keep and carry arms wherever they went" if they were citizens of the United States. As Justice Bradley explained in the Slaughterhouse Cases dissent: "It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of [Page 130] citizens . . . . Their very citizenship conferred these privileges, if they did not possess them before."
The Reconstruction Republicans' Fourteenth Amendment contained only the seed for reverse incorporation of an individual right to bear arms. The right to bear arms, and indeed the principle that the Bill of Rights contained strong individual rights to limit the federal government as well as the states, was only a collateral consequence of the Fourteenth Amendment. In addition, the federal government was not yet powerful enough to enact a general criminal law for the Unionist States. The New Deal worked a dramatic change in this situation.
V. THE RIGHT TO BEAR ARMS IN THE NEW DEAL
President Roosevelt's claim of authority to institute a new constitutional regime was justified by "We the People's" endorsement of an activist national government in response to the tragedy of the Great Depression. The New Deal thoroughly rejected the idea that federal activism would "impair 'something infinitely valuable in the life of the American people' and strike 'at the roots of self-government."' Although the emphasis of the New Deal was on federal economic regulations and relief programs, the expansion in federal jurisdiction was accompanied by an increase in federal criminal laws in areas that traditionally were subject only to state control. [Page 131]
A. EXPANSION OF FEDERAL CRIMINAL LAW
Since Justice Roberts overruled prior decisions invalidating minimum wage laws in West Coast Hotel Co. v. Parrish, the federal government has continued to expand its regulatory authority in areas traditionally subject only to state regulation. Federal firearms laws have followed this trend. License requirements and restrictions on certain firearms, such as machine guns, have been in effect since 1934. As President Roosevelt stated in May of 1934: "These laws are a renewed challenge on the part of the federal government to interstate crime. They are also complementary to the broader program designed to curb the evil-doer of whatever class." In [Page 132] his 1934 speech, Roosevelt mentioned that: "Federal men are constantly facing machine-gun fire in the pursuit of gangsters." In his 1937 explanatory note, after stating that the kidnapping of the Lindbergh baby and gangster crimes in the summer of 1933 served as spurs to federal action, President Roosevelt listed as sixth among the "most important" crime legislation a "statute requiring registration of all machine-guns and sawed-off shotguns and rifles." [Page 133]
The theme that firearms should be kept out of the hands of criminals was continued in the Federal Firearms Act of 1938. The Act made it a crime "for any person who has been convicted of a crime of violence . . . to receive any firearm or ammunition transported or shipped in interstate or foreign commerce." The Act also provided that "the possession of a firearm or ammunition by any such person shall be presumptive evidence" of a violation. As President Roosevelt explained: "Congress decided that it would have to take advantage of its constitutional power to enact crime legislation based on the interstate commerce clause, the tax clause, and the implied right of the federal government to protect its various agencies and instrumentalities." The courts supported these efforts until recently. [Page 134]
B. FEDERAL FIREARMS LAWS IN THE COURTS
The only Supreme Court decision examining federal firearms laws in the context of the Second Amendment was United States v. Miller, decided in 1939. In Miller, the defendant was charged with transporting a shotgun having a barrel less than eighteen inches in length in interstate commerce without having registered the weapon as required by the National Firearms Act of 1934.  The Court rejected the defendant's argument that the Act was a violation of the Second Amendment, noting that "the Militia comprised all males physically capable of acting in concert for the common defense" who "were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
The Court then held that the Second Amendment protects only arms that bear a "reasonable relationship to the preservation or efficiency of a well regulated militia." Among other sources, the Court examined statutes of Massachusetts, New York, and Virginia that defined the militia at the time the [Page 135] Second Amendment was adopted. The Court found that a shotgun such as that used by the defendant was not part of the prescribed militia equipment in those states. 
The fact that the Court looked to statutes that were in place when the Second Amendment was adopted can be interpreted in several ways. First, the Court could have concluded that the Second Amendment protects only weapons that were listed in state militia statutes when the Amendment was adopted. Second, the Court could have held that the Amendment protects all weapons that are useful to a militia. Third, the Court could have determined that the Amendment ensures that "the past and general usage of the states" will not be infringed by the federal government.
The first interpretation of Miller ¾ that only ancient weapons are protected ¾ is too narrow because it would mean that the Second Amendment contained an implicit technology-based "sunset provision." The Second Amendment would repeal itself as the technology used in firearms changed so that the weapons bore almost no resemblance to those in use when the Second Amendment was adopted.
The second interpretation of Miller ¾ that all weapons useful to a militia are protected ¾ is too broad. As the Court of Appeals for the First Circuit stated in Cases v. United States,  which was decided shortly after Miller, that rule "would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well-known fact that . . . some sort of military use seems to have been found for almost [Page 136] any modern lethal weapon." Even worse, Congress could not regulate the possession of "distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns" by civilians. It is conceivable, however, that the framers intended the Second Amendment to prevent Congress from taking away the states' right to arm any or all of its citizens with such weapons.
The third interpretation of Miller ¾ that the Second Amendment protects state militias ¾ is more plausible. If this interpretation is correct, the Second Amendment has continued vitality only if it is translated through the new constitutional regimes endorsed in the Reconstruction and the New Deal. Consequently, the Supreme Court's focus on weapons in interpreting the Second Amendment is mistaken. The Supreme Court should focus on the role of the militia as a check on the tyrannical use of the federal armed forces and ask whether a substantially equivalent check may be found in the modern regime of a powerful national government. [Page 137]
Consistent with the duty to preserve prior constitutional changes during periods of normal politics, in 1943 the Court held in Tot v. United States that a provision contained in the Federal Firearms Act of 1938 violated due process. The provision made the mere possession of a firearm or ammunition by a felon presumptive evidence that the firearm or ammunition was transported or received in violation of the Act. In discussing the scope of the Act, the Court noted that both courts below and the prosecution agreed that the statute did not cover "the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate." The Court also stated: "[I]t is plain that Congress, for whatever reason, did not seek to pronounce [a] general prohibition of possession by certain residents of the various states of firearms in order to protect interstate commerce, but dealt only with their future acquisition in interstate commerce."
Almost thirty years later, in United States v. Bass, the Court had great difficulty interpreting a provision in Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. The statute provided, in relevant part, that any convicted felon "who receives, possesses, or transports in commerce or affecting commerce . . . any firearm" shall be fined and/or imprisoned. The legislative history supported the Government's contention that the statute reached "the mere possession of guns without any showing of an interstate commerce nexus" in individual cases. The phrase "in commerce or affecting commerce," however, could be read to [Page 138] modify only "transports," or all three offenses. The Court held that some connection to interstate commerce was required for two reasons. First, "ambiguity concerning the ambit of criminal statutes should be resolved in favor of leniently."  Second, "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance" and "[a]bsent proof of some interstate commerce nexus in each case [section] 1202(a) dramatically intrudes upon traditional state criminal jurisdiction." Therefore, the Court set aside the conviction because there had been no proof of a link to interstate commerce.
Only five years later, however, in Barrett v. United States, the Court upheld the exercise of federal jurisdiction over a convicted felon who purchased a handgun that was transported interstate prior to and independently of the purchase. At issue was the scope of Section 922(h) of Title 18 of the United States Code, which made it unlawful for any convicted felon "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The Court held that the plain language of the statute, its structure and purpose, and its legislative history all demonstrated that direct interstate receipt, such as would occur if the felon ordered the gun from out of state, was not required. The Court characterized the Tot statement that Congress [Page 139] intended to require a direct link to interstate commerce as simply a "recital" of the holdings of the lower courts and of the government's position at that time, which the government was not bound to adhere to decades later. The Court described the comment in Bass ¾ that "Title IV [of the Safe Streets Act] apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation"¾ as "dictum" because Bass involved Title VII not Title IV of the Safe Streets Act.
In Scarborough v. United States, the Court resolved a split among the circuits and decided that the nexus with interstate commerce required by section 1202(a) of Title 18 of the United States Code (as interpreted in Bass) could be established solely by proof that the firearm previously travelled in interstate commerce. Thus, the connection to interstate commerce need not be "contemporaneous" with possession. The Court relied on the congressional finding that "the receipt, possession, or transportation of a firearm by felons . . . constitutes . . . a burden on commerce or threat affecting the free flow of commerce." The Court dwelt on legislative history and statements by the sponsor of the provision, Senator Long of Louisiana, who argued that Congress could "outlaw the mere possession of weapons" by simply finding "that the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce." [Page 140]
In United States v. Lopez, however, the Supreme Court rejected a cavalier treatment of the Commerce Clause similar to that urged by Senator Long and held the Gun-Free School Zones Act of 1990 unconstitutional. The Court limited the New Deal expansion of the Commerce Clause to the economic sphere, and found no economic implications from the possession of a firearm within a school zone. The Court held that Congress may regulate: (1) "the use and channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having a substantial relation to interstate commerce, namely, those activities that substantially affect interstate commerce." The Court acknowledged that its "case law has not been clear whether an activity must 'affect' or 'substantially affect' interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause." Rather, the Court concluded, "consistent with the great weight of our case law . . . the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce." The Court noted the absence of any requirement in the Act that the firearm possession affect interstate commerce, and the lack of express congressional findings on the subject. The Court therefore rejected the government's contention that the impact of violent crime and the threat to the educational process established a substantial effect on interstate commerce because such analysis appeared to support unlimited federal Commerce Clause authority.  The Court explained that although prior decisions had interpreted the Commerce Clause broadly, such an interpretation in Lopez would "bid fair to convert congressional authority [Page 141] under the Commerce Clause to a general police power of the sort retained by the States."
The Supreme Court's limitation of broad federal commerce jurisdiction to the economic sphere is a plausible interpretation of the New Deal. After all, the focus of the New Deal was on economic welfare, just as the focus of the Reconstruction was on freedom for blacks. Even Robert Stern, who prepared briefs and oral arguments on behalf of the United States in the leading New Deal cases of the 1940's, was surprised by the Supreme Court's ready acceptance of the expansion of federal jurisdiction over intrastate crime after the New Deal. [Page 142]
Yet, as Stern recognized, it was not inconsistent for the New Deal activist welfare state to try to protect its citizens from local crime, particularly when "states and their citizens need federal law enforcement assistance in areas where both federal and state governments are seeking to effectuate the same policies." While it is true that federal regulation of purely intrastate firearms activities "dramatically intrudes upon traditional state criminal jurisdiction," the New Dealers did so intrude through the Federal Firearms Act of 1938.
In his dissent in Lopez, Justice Breyer emphasized that courts must give Congress "a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce," and should consider the cumulative effects of a similar instances of a local activity. Justice Breyer's argument is more consistent with the constitutional mandate of the New Deal than is the analysis of the majority. The New Deal inaugurated a new constitutional regime in which the federal government's power is limited primarily by the strengthened individual rights of citizens. Contrary to the Lopez majority opinion, these rights, not the Commerce Clause, provide the "judicially enforceable outer limits to the power of Congress." Federal firearms laws are within the power of [Page 143] Congress so long as there is a link to interstate commerce, even if the link is established only through aggregation, unless they infringe upon the individual right to bear arms championed by Reconstruction Republicans or another provision of the Constitution.
Although the Supreme Court has not held that the Second Amendment guarantees an individual right to bear arms that no state may abridge, if the Court were to do so, as the Reconstruction Republicans intended, it would have to determine the proper scope of the right, and whether the scope should be the same when federal action is involved as when state action is challenged. A synthesis of the constitutional principles endorsed during the Founding, the Reconstruction, and the New Deal can help answer that question.
VI. SYNTHESIS: THE RIGHT TO BEAR ARMS TODAY
An integration of the principles governing the right to bear arms during the three constitutional eras ¾ the Founding, the Reconstruction, and the New Deal ¾ defines what the right to bear arms should look like today. Even a conscientious application of such synthesis, which will be referred to as "1-2- 3 synthesis," however, is unlikely to yield only one plausible result.
First, the Founders used expansive rather than specific language in many of their constitutional provisions, including the Bill of Rights, with the intent that the document would endure through changed circumstances. As the discussion of the Second Amendment in Part III above indicated, such language allows for more than one interpretation even when historical sources are consulted.
Second, the vast temporal distance between the Founding, the Reconstruction, and the New Deal makes it difficult to ferret out the different readings the actors of each era gave to the same constitutional provisions. For example, the proponents of each new constitutional regime may not have articulated certain presumptions that, in their time, were shared by all participants.
Third, the New Dealers were not forced to concretize their constitutional regime in texts such as the Civil War Amendments. Instead, they relied on the courts to elaborate the constitutional principles of the New Deal while, as pragmatists, Congress and the President concentrated on the business of governing "efficiently" and "scientifically." "We the People" of the New Deal never returned, however, to check whether the Supreme [Page 144] Court had correctly captured the new constitutional regime in decisions such as Perez v. United States and Scarborough v. United States.
For all these reasons, 1-2-3 synthesis is tricky. Yet applied to the transformation of the well-regulated militia and to four categories of gun controls, one solution is most faithful to the Founding, the Reconstruction, and the New Deal.
A. SYNTHESIS APPLIED: THE TRANSFORMATION OF THE WELL-REGUALATED MILITIA
The militia in 18th Century America served three primary purposes. First, the militia was used for national defense ¾ to protect the United States from foreign invaders and to quell domestic insurrections. Second, the militia allowed private citizens to participate in government directly. Third, local members of the militia, acting as a posse comitatus, could apprehend criminals. The militia was populist in nature, and was more useful for oppressing minorities than for protecting them, as the Reconstruction Republicans recognized. During the Reconstruction, southern Democrats grew to fear the use of federal armed forces to enforce [Page 145] the laws and, after the Compromise of 1877, the Posse Comitatus Act was passed in order to prevent the return of military rule. [Page 146]
A synthesis of the Founding, the Reconstruction, and the New Deal demonstrates that the National Guard and the federal armed forces has assumed the role of the militia in protecting the United States from foreign invaders and from domestic insurrection. This indicates that Congress should replace the states as a check on the domestic use of the armed forces. In addition, the Reconstruction and New Deal replaced citizen participation in militias with broader citizen participation in the electoral process through the right to vote and enhancement of the rights of free speech, press, and peaceable assembly. The role of the militia in local law enforcement has been assumed by professional police forces, but it was never of constitutional dimension and therefore will not be discussed further.
1. MODERN SUBSTITUTES FOR NATIONAL DEFENSE.
The historical role of the militia in defending the United States from foreign invaders and in quelling domestic insurrections is often down-played by advocates of an individual right to bear arms. For these purposes, at least, the militia has been replaced by the federal armed forces and the National Guard, where the government supplies the arms. A synthesis of the three constitutional regimes suggests two consequences of this change. First, private militias are not protected under the Constitution. Second, Congress should replace the states as a check on the misuse of the federal armed forces.
a. NO PRIVATE MILITIAS
A recent case involving the Ku Klux Klan vividly illustrates the danger of reviving the 18th Century militia given the survival of racist attitudes similar to those abhorred by the Reconstruction Republicans. In Vietnamese [Page 147] Fishermen's Association v. Knights of the Ku Klux Klan, the plaintiffs were granted an injunction to prevent the defendants from maintaining paramilitary units in violation of a Texas statute prohibiting private armies. The Klan claimed a Second Amendment right to maintain its "Texas Emergency Reserve" ("TER"), which allegedly was created because "the National Guard and military reserve [did not] have the skills to be effective in a civil disturbance." The TER conducted training camps at various locations throughout Texas.  Members were instructed in rifle practice, biological and chemical warfare, techniques for avoiding snipers, the art of psychological warfare, ambush and counter-ambush, reconnaissance patrol, and other types of military movements.
The Reserve provided security at Klan meetings and rallies and participated in a "Borderwatch." At a meeting in 1981, members carried: a riot shotgun, an AR-15 semiautomatic with a 30 round clip, an M-1, and a carbine. The former head of the Pasadena Klan clavern also appeared in a television interview in 1981 and stated that "the TER would be glad to patrol the perimeter [of Ellington Air Force Base] outside the fence to help keep [aliens] in."
The actions of the TER that led to the suit by the Vietnamese Fishermen's Association culminated in a Klan "boat ride" on March 15, 1981, during which TER members took prominent positions on the boat and openly displayed their weapons. An effigy of a Vietnamese fisherman [Page 148] was hung from the rear deck rigging. Louis Beam, Grand Dragon of the Knights of the Ku Klux Klan for the State of Texas, testified that "if the problem [with the Vietnamese fishermen [Page 148] wasn't solved" he would establish a Klan sea patrol. He also stated at a rally a month before the boat ride that "the Ku Klux Klan is more than willing to select out of the ranks of American fishermen some of your more hardy souls and send them through our training camps. And when they come out of that, they'll be ready for the Vietnamese." The Grand Titan of the Ku Klux Klan stated that "[w]e have reason to believe North Vietnamese Communists are infiltrating the ranks of the Vietnamese relocated in the Kemah-Seabrook [Texas] area." The TER's actions led to a successful suit by the Vietnamese Fisherman's Association.
The TER was ready, willing and able to engage in combat for what it believed was the defense of the state of Texas, and the United States, against North Vietnamese Communists. Elbridge Gerry probably would have been pleased by the military effectiveness of the TER and, consequently, its ability to deter aggression by the federal armed forces. The Court, however, was not impressed. The court correctly rejected the defendants' claim that their Second Amendment rights had been violated by a Texas law prohibiting private militias, explaining that the Second Amendment "prohibits only such infringement on the bearing of weapons as would interfere with 'the preservation and efficiency of a well regulated militia,' organized by the State. . . ." The court did not find a "general constitutional right for individuals to bear arms and form private armies" in the Constitution. 
The Vietnamese Fisherman's Association's reading of the Second Amendment is consistent with the Supreme Court's decision in United States v. Miller and with the intent of the Reconstruction Republicans and the New Dealers. Under a dualist's synthesis, the Second Amendment no longer operates to protect private militias, such as the TER or the Michigan [Page 149] Militia The National Guard and U.S. Armed Forces are safer (although imperfect) places to put our trust.
The Founders' concerns with tyrannical use of the standing army continue to be relevant. The institutional response to this danger must be modified, however, in accordance with Reconstruction and New Deal principles. Separation of powers between Congress and the executive should replace division of powers between the federal government and the states.
b. CHECKS ON THE USE OF FEDERAL ARMED FORCES
The Founders sought to check the ability of a tyrannical national government to misuse the militia or the armed forces by dividing power [Page 150] between the federal government and the states. Article I, Section 8 of the Constitution specifies the military powers given to Congress.
The Founders also separated Congress's power to provide for armed services from the executive power to command them. Article II, section 2 provides that "[t]he President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States . . . ."
The distribution of power over the militia between Congress and the President was not as important to the Founders as the distribution of power between the state governments and the national government. Since the Reconstruction and the New Deal, however, the balance of power between federal and state governments has tilted almost overwhelmingly in favor of the former, and, in military matters, in favor of the President as opposed to Congress. The struggle between the Reconstruction Congress and [Page 151] President Johnson over control of the military, and the defeat of President Roosevelt's court-packing plan, however, demonstrate that separation of powers should be used as the new institutional check on the President's ability to mobilize members of the National Guard and armed forces.  Several cases illustrate this proposition.
In Youngstown Sheet & Tube Co. v. Sawyer the plaintiffs challenged President Truman's authority to unilaterally order the National Guard to take possession of the nation's steel mills in order to avert a wartime strike. In prior legislation, Congress had required that the President first seek a voluntary settlement of labor disputes and then report to Congress if such efforts failed. The President argued that the Congressional procedures whereby seizure could be authorized were "much too cumbersome, involved, and time-consuming for the crisis which was at hand." President Truman claimed the power to order a seizure by implication "from the aggregate of his powers under the Constitution," including the Commander-in-Chief Clause.
The Supreme Court rejected the President's contention, relying heavily on the intent of the Founders to reserve this power for Congress. In his influential concurrence, Justice Jackson noted: "That military powers of the Commander-in- Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history." The result in Youngstown Sheet & Tube was a [Page 152] correct synthesis of the Founding, the Reconstruction, and the New Deal because it preserved congressional control over the military.
In 1970, members of the Ohio National Guard, which had been called into action by President Nixon, shot and killed four Kent State University students who were protesting the Vietnam War. This tragedy led to Gilligan v. Morgan, in which the plaintiffs sought a declaratory judgment that the Due Process Clause of the Fourteenth Amendment permitted the federal judiciary to evaluate the "training, weaponry, and orders" of the Guardsmen to determine whether they would probably use fatal force again in suppressing civil disorders. The Supreme Court reversed a Court of Appeals order that included ongoing judicial surveillance of the Guard, noting that supervision of the Guard was given to Congress alone under Article I, Section 8, Clause 16.
In Perpich v. Department of Defense, the Governor of Minnesota brought suit challenging the deployment of the state National Guard to Central America for training purposes. The Supreme Court held, unanimously, that Article I gave Congress the power to authorize members of the National Guard to act under color of federal authority for purposes of training outside the United States without the consent of the state governor or a declaration of national emergency.
The Court provided a lengthy history of the evolution of the state militias into the National Guard. After discussing the ineffectiveness of the state militias during the first century, the Court analyzed the rise of the federal National Guard.  In 1903, Congress passed the Dick Act, which provided that all able-bodied male citizens between 18 and 45 were to be divided into an "organized militia" ¾ the National Guard ¾ and a "reserve [Page 153] militia." Under an amendment to the National Defense Authorization Act of 1987, the Army was given the authority to train the members of the National Guard. The amendment provided that gubernatorial consent was not required for the National Guard to act under color of federal law for any purpose. The Supreme Court held that the amendment was [Page 154] constitutional because of "the supremacy of federal power in the area of military affairs."
The judgments in Perpich and Gilligan were correct syntheses of the Founding, the Reconstruction, and the New Deal because Congress had, in advance, authorized the National Guard to be so deployed. The judgment in the Steel Seizure Case also was correct because the President was trying to usurp congressional authority over the armed forces. Such Presidential action is particularly dangerous to liberty under the modern system because separation of powers between different branches of the federal government has replaced division of powers between the federal and state governments as a check on tyranny. [Page 155]
2. MODERN SUBSTITUTES FOR DIRECT CITIZEN PARTICIPATION IN GOVERNMENT
Both the New Dealers and the Reconstruction Republicans strengthened federal power at the expense of the states. The Reconstruction Republicans also refused to protect state militias. In the eyes of the Reconstruction Republicans, the state militias were enemies, not the protectors of liberty the Founders valued so highly. Consequently, the federal armed forces were necessary for the security of a free and united nation. As a result of these changes, opportunities for direct private citizen participation in government are more limited than they were at the Founding. The proportion of persons who are citizens, moreover, has increased along three dimensions: class, race, and gender. The Reconstruction and New Deal response to such changes was to substitute enhanced participation in the electoral process for the militia as a forum for direct citizen participation in government. This response also substitutes the First Amendment for the Second Amendment.
Without using 1-2-3 synthesis, several other authors have developed modern substitutes for direct citizen participation in government formerly provided by service in the state militias. These authors tend to give too much weight to either the Founding or the New Deal, while ignoring the Reconstruction and the relationship between the three constitutional regimes. John Hart Ely's proposal, however, is consistent with 1-2-3 synthesis.
David C. Williams argues that, for Republicans, the Second Amendment "as worded, is meaningless" because it "presupposed an institution [universal virtuous citizen militia] now gone." Thus, he recommends that courts read "other parts of the Constitution in such a way as to serve militia- like functions," such as by seeking "to increase the influence of people over their government." Williams suggests that courts should be more receptive to campaign finance reform, proportional representation, and redistribution of property, and should show less deference to claims of military or police necessity. With respect to campaign [Page 156] finance reform, proportional representation, and greater skepticism toward the professional armed forces, his proposal is consistent with a synthesis of the Founding, the Reconstruction and the New Deal. Redistribution of property, however, may be a part of the next constitutional regime, but it does not fit well within 1-2-3 synthesis.
Williams seeks to find substitutes for the militia that can encourage the growth of a virtuous and powerful citizenry. In particular, he examines proposals for reform such as a revived universal militia, which he rejects as too dangerous at present, universal public service, and direct citizen participation in government, which he supports. Williams does recognize that the Reconstruction and the New Deal have replaced state and local governments with the federal government, and that direct citizen participation in government through the militia has been abandoned by "We the People."
Elaine Scarry uses a perpetual consent version of social contract theory to argue persuasively that: "Both [A]rticle I, Section 8 and the [S]econd [A] mendment ensure the integrity of the social contract at the moment of entering war; both protect against the concentration of military power in the Executive; both are incompatible with our standing arrangements for presidential first-use of nuclear weapons." She proposes that the Constitution requires for a preemptive nuclear strike the authorization of many more people than the "one or two or twenty persons that enter into nuclear discussions and that have been for the last few decades presented to this population in a deeply insulting and gravely unconstitutional mimesis of collective decision-making."
Williams and Scarry provide excellent examples of attempts to revive the principles of the Founding. Williams and Scarry seek to translate the idea of a "universal" virtuous citizen militia in the republican vision of the [Page 157] Founders into forms that will have the same meaning in the modern era of the powerful administrative state. Scarry, however, gives too much weight to the vision of the Founders and not enough weight to the New Deal, which authorized the consolidation of power in the federal government, and the Reconstruction, which replaced the division of power between state citizens and the federal government with separation of powers within the federal system. If Williams and Scarry seek to revive direct citizen participation in government through universal public service or massive assent to first-use of nuclear weapons, then they will have to gain the consent of "We the People" in the next constitutional regime.
John Hart Ely views the Second Amendment as a provision that "does not comfortably conform to [the] pattern . . . of structuring decision processes at all levels to try to ensure, first, that everyone's interests will be actually or virtually represented (usually both) at the point of substantive decision." Ely's representation-reinforcing solution, however, may be the most appropriate means of reconciling the direct-participation aspiration of the Founders with the constitutional principles endorsed during the Reconstruction and the New Deal. In Democracy and Distrust, Ely argues that the federal courts should ensure that the political process is open, effective, and democratic. This is consistent with 1-2-3 synthesis.  [Page 158] Ely's solution is more satisfactory than Scarry's solution because it is consistent with both the Reconstruction and the New Deal, which sought to broaden and deepen citizen participation in government.
Of course, contrary to Ely's view in Democracy and Distrust, in a dualist democracy, the judiciary must do more than police the political process. The court also must apply the constitutional principles endorsed by "We the People" in different constitutional moments to legislation enacted during periods of normal politics, when representatives may be tempted to violate those principles.
B. SYNTHESIS APPLIED: GUN CONTROLS
It is remarkably easy to integrate the principles of the Founding and the Reconstruction with respect to the right to bear arms. By the time the Fourteenth Amendment was ratified, the right to bear arms was understood to be an individual right to bear arms for self-defense and a "privilege or immunit [y]" of citizenship that states, as well as the federal government, could not abridge. In this respect, the Reconstruction Republican's reading of the Second Amendment was not inconsistent with the Founders' view of the Fourteenth Amendment. The Reconstruction Republicans [Page 159] expanded the Second Amendment of the Founders along two dimensions, the entities covered by the Second Amendment and the scope of conduct that it protected.
The Founders believed that the first eight amendments to the United States Constitution operated only as a limit on the federal government, and that state governments were free to regulate speech as well as arms-bearing. The Reconstruction Republicans changed both the first and the second elements of that principle by redefining the provisions of the Bill of Rights in individual, rather than structural, terms and by using these individual rights to limit the actions of state governments as well as the federal government. As a practical matter, however, the implicit limits on the federal government were of little importance because of the relatively small size and power of the national government during the middle republic. The New Dealers, however, expanded federal power to regulate intrastate crime. The New Dealers also rejected the individual right of liberty of contract that was so important to the Reconstruction Republicans, but did not explicitly reject the individual right to bear arms.
Since the New Deal, the expansion of federal firearms laws has continued apace. There are at least four possible ways in which the individual- rights/national-citizenship solution of the Reconstruction may be synthesized with the activist, regulatory state solution of the New Deal: (1) repeal of the right to bear arms; (2) expansion of the right to bear arms; (3) strict limits on federal gun controls and weak limits on state gun controls; or (4) strict limits on state gun controls and weak limits on federal gun controls. The fourth approach is most consistent with the proper synthesis of the Founding, the Reconstruction, and the New Deal.
1. FOUR PLAUSIBLE RESULTS OF SYNTHESIS
Although there are numerous possible methods of integrating the constitutional principles of the Founding, the Reconstruction, and the New Deal, some methods are more faithful to the temporal and political relationship between the three regimes than others. Four interpretations that lie at the two ends and in the middle region of the spectrum of possible syntheses will illustrate this point. [Page 160]
a. REPEAL OF THE RIGHT TO BEAR ARMS
The first possible result of synthesis is that the right to bear arms was repudiated during the New Deal in the same way that the New Dealers rejected the view of private property endorsed during the Reconstruction and elaborated in Lochner v. New York. If so, federal gun controls would be tested according to the same standards as other federal restrictions that do not implicate fundamental constitutional rights, such as limits on farm production of wheat. Federal gun controls would be upheld if they bore a rational relationship to a legitimate state interest. The Court also might "presume" the existence of facts supporting the legislation, as it does for legislation affecting "ordinary commercial transactions."
By limiting the right to bear arms to members of the state militias engaged in official business, and by requiring only a tenuous link to interstate commerce in federal firearms laws, several federal courts have effectively reached this point. Most recently, in United States v. [Page 161] Edwards,[ 271] the Ninth Circuit upheld the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a firearm in a school zone, despite the fact that the Act did not require proof of any connection to interstate commerce. The court relied heavily on its prior decision in United States v. Evans, in which it upheld a conviction for possessing an unregistered machine gun, explaining that "violence created through the possession of firearms adversely affects the national economy, and consequently, it was reasonable for Congress to regulate the possession of firearms pursuant to the Commerce Clause." The court emphasized that "it is unnecessary for Congress to make express findings that a particular activity or class of activities affects interstate commerce in order to exercise its legislative authority pursuant to the Commerce Clause."
The main problem with the view that "We the People" have repealed the right to bear arms is that the New Dealers emphatically rejected the [Page 162] Lochner laissez faire economic regime. If the New Dealers repudiated the individual right to bear arms, however, they did not do so explicitly. Thus, repeal of the right to bear arms is a plausible but not a compelling outcome of 1-2-3 synthesis.
b. EXPANSION OF THE RIGHT TO BEAR ARMS
The second possibility is that the individual right to bear arms of the Reconstruction should be expanded in response to the concentration of federal power that was endorsed during the New Deal. This result is suggested by the influential footnote four in United States v. Carolene Products Co. The Court indicated that there may be a narrow scope for the presumption that legislation is constitutional where such legislation "appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth."
As David Yassky has noted, the Supreme Court adopted this approach when it broadened free speech in response to the New Deal's expansion of federal power and the consolidation of such power "within relatively unaccountable administrative agencies." [Page 163]
Support for the expansion of individual rights to free speech, press, and assembly also may be found in the Supreme Court decision, West Virginia State Board of Education v. Barnette:
The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.
If the right to bear arms were similarly expanded, it could be restricted by the state and federal governments only when necessary to prevent, as yet undefined, a "grave and immediate danger" to legitimate state interests. This test might be satisfied in the case of a ban on machine guns or short-barreled firearms, for example, but such legislation would not be presumed to be supported by the facts. Instead, extensive legislative findings concerning the need for such restrictions on the right to bear arms would be required.
The main problem with an expansion of the right to bear arms is that the expansion of the rights to free speech and free press is consistent with the view that the political process is the only way for citizens to check the now- powerful National Government. Indeed, President Roosevelt recognized this when he stated that "individual liberty and individual happiness mean nothing unless both are ordered in the sense that one man's meat is not another manís [Page 164] poison" but "the right to read, to think, to speak, to choose and live a mode of life, must be respected at all hazards."
Although a broad reading of the right to bear arms would be consistent with the Reconstruction Republicans' intent that black freedmen be entitled to bear arms for self-defense, there is no evidence that New Dealers sought to expand the right to bear arms any further than the Reconstruction Republicans.
c. THE RIGHT TO BEAR ARMS AS A WEAK LIMIT ON STATE GUN CONTROLS AND A STRONG LIMIT ON FEDERAL GUN CONTROLS
The third possible result of synthesis would be to limit federal restrictions on the right to bear arms more severely than similar restrictions by state governments. This approach was used by the Court to delimit the criminal defendant's right to trial by jury. The Supreme Court's early cases involving the Sixth Amendment, which were decided after the Reconstruction, expansively interpreted the right to trial by jury in criminal cases. In Thompson v. Utah, decided in 1898, the Court held that "the jury referred to in the original [C]onstitution and in the [S]ixth [A]mendment is a jury constituted, as it was at common law, of twelve persons, neither more nor less." Two years later, in Maxwell v. Dow, the Court held that a unanimous jury verdict was required before a conviction could be imposed.
When the Court later had to decide whether, and to what extent, the right to trial by jury was applicable to the states through the Fourteenth Amendment, it did not read the right so broadly. In Duncan v. Louisiana, the Supreme Court first held that the Sixth Amendment right to trial by jury applied to the states through the Due Process Clause of the [Page 165] Fourteenth Amendment. After reviewing the incorporation debate, the Supreme Court held that the Fourteenth Amendment "guarantees a right of jury trial in all criminal cases which ¾ were they to be tried in a federal court¾ would come within the Sixth Amendment's guarantee." In a lengthy footnote, the Court avoided the question whether every aspect of the detailed jurisprudence regarding federal jury trials also applied to the states. Two years later, in Williams v. Florida, the Court upheld a robbery conviction by a six-person panel, stating that "the twelve-man panel is not a necessary ingredient of 'trial by jury."' Although Justice Harlan concurred in the result, he objected to the majority's reasoning, on the ground that constitutional protections against federal action should not be diluted in order to give states freedom to experiment.
Subsequently, in Apodaca v. Oregon, the Court upheld a non- unanimous jury verdict. Justice Powell, who provided the crucial vote, wrote in his concurrence that unanimity was required in federal trials but not in state trials because otherwise the states would be deprived of "freedom to experiment with adjudicatory processes different from the federal [Page 166] model." In Burch v. Louisiana, the Court finally drew the line and set aside a conviction imposed by a non-unanimous six-member jury.
As a result of these decisions, the federal government is limited more strictly by the right to trial by jury in criminal cases than are the states. With respect to the right to trial by jury, Justice Douglas was incorrect when he stated that "rights protected against state invasion by the Due Process Clause of the Fourteenth Amendment are not watered-down versions of what the Bill of Rights guarantees."
At first glance, this result of constitutional synthesis appears consistent with Justice Brandeis's famous description of the states as laboratories of democracy. Justice Brandeis's statement is often used by courts and commentators to support greater freedom for experimentation by the states. As applied to the right to bear arms, however, such an interpretation puts great strain on the text of the Fourteenth Amendment and on the intent of its framers. The Reconstruction Republicans were much more concerned with abuses against black freedmen by the rebel states than with abuses by the federal government. The Scottsboro case, Powell v. [Page 167] Alabama is a perfect example of how this concern survived during (and after) the New Deal. The fatal blow to this result of 1-2-3 synthesis, however, is its inconsistency with the expansion of federal power that the supporters of the New Deal endorsed so enthusiastically.
d. THE RIGHT OT BEAR ARMS AS A STRONG LIMIT ON STATE GUN CONTROLS AND A REAL LIMIT ON FEDERAL GUN CONTROLS
The fourth plausible result of 1-2-3 synthesis is to limit state action restricting the right to bear arms more severely than equivalent federal action. Until recently, this was the judicial approach to federal and state affirmative action programs, and to free speech and assembly cases decided after the New Deal.
There is no express guarantee of equal protection in the Bill of Rights. After the Equal Protection Clause of the Fourteenth Amendment was used to restrict state action in Brown v. Board of Education, however, the Supreme Court held, in Bolling v. Sharpe,  that federal action was restricted in a similar, if not identical, fashion by reading an equal [Page 168] protection component into the Due Process Clause of the Fifth Amendment. Despite the lack of strong precedent for the Court's decision, the conclusion that there is an equal protection component in the Fifth Amendment is amply justified by the intent of the Reconstruction Republicans. The issue that has presented far greater difficulty is whether the same analysis should apply to equal protection challenges under the Fifth Amendment as to cases arising under the Fourteenth Amendment. This question is particularly important because there are at least three different applicable standards of review: the Court can ask if there is a rational basis for the challenged statute; it can apply strict scrutiny and ask whether the statute is necessary to serve a compelling state interest; or it can apply an intermediate level of scrutiny and ask whether the statute is substantially related to important governmental objectives. Generally,[Page 169] the Court applied the same type of equal protection analysis to both federal and state race-based classifications. Affirmative action programs, however, have been particularly difficult for the Court to handle and invariably have divided the Justices.
In Fullilove v. Klutznick, the Court upheld the "minority business enterprise" provision of the Public Works Employment Act of 1977, which required that, absent an administrative waiver, at least 10% of federal funds granted for public works projects had to be used to purchase services or supplies from businesses owned by minority group members, defined as United States citizens "who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Relying on the Spending Power, the Commerce Clause, and section 5 of the Fourteenth Amendment, the Court concluded that there was a rational basis for Congress to believe that subcontracting practices would continue to impair access by minority businesses to public contracting opportunities, and that this inequity had an effect on interstate commerce.
In City of Richmond v. J.A. Croson Co., however, five members of the Court applied a strict scrutiny standard to Richmond's minority set-aside provision, which was substantially equivalent to the federal statute the Court had upheld in Fullilove. The Court struck down the provision on [Page 170] the ground that the city had failed to demonstrate a compelling governmental interest justifying the plan, and that the plan was not narrowly tailored to remedy the effects of prior discrimination. Subsequently, in Metro Broadcasting, Inc. v. FCC, the Court held that federally-enacted benign racial classifications should be examined under the intermediate standard of review. The Court upheld an FCC program to benefit minority controlled radio and television firms.
Recently, however, in Adarand Constructors, Inc. v. Pena, the Court overruled Metro Broadcasting and held that strict scrutiny should be applied to both federal and state affirmative action programs. Regardless of the proper level of scrutiny for affirmative action programs under the Equal Protection Clause and the enforcement provisions of section 5 of the Fourteenth Amendment, for arms bearing, the best synthesis of the Founding, the Reconstruction, and the New Deal requires that the Court show more deference to federal regulations than to equivalent state regulation.
In response to the New Deal's expansion of federal jurisdiction and consolidation of federal power in largely unaccountable federal agencies, the Supreme Court read the First Amendment guarantee of free speech and press more broadly than it had ever done before. The Court then had [Page 171] to decide whether to limit the federal government's ability to restrict speech and press in the same manner as it had limited the state governments. After upholding federal restrictions on speech and association that probably would have been struck down if imposed by the states, the Court finally limited the federal government in Lamont v. Postmaster General of the United States. [Page 172]
The justification for imposing a weaker limit on federal restriction of the right to bear arms than on equivalent state action lies in the New Deal expansion of federal power, which vastly magnified the federal power granted at the Founding and enlarged during the Reconstruction. The justification for imposing a strict limit on the States, on the other hand, is grounded in the command of the Fourteenth Amendment that "[n]o State shall . . . abridge the privileges or immunities of citizens of the United States," which includes the right to bear arms.
This result of 1-2-3 synthesis of the right to bear arms is consistent with the Court's initial approach to 1-2-3 synthesis of the First Amendment right to free speech. It is true that a strict limit on the ability of the states to restrict the right to bear arms is inconsistent with Justice Brandeis's view that the states should be permitted to experiment. But the Reconstruction Republicans emphatically rejected the principle of state freedom to experiment, at least in areas covered by the Bill of Rights. The New Deal reinstated the principle of unconstrained experimentation in the commercial sphere, but only for the federal government. In addition, as the majority of the Court responded in New State Ice Co. v. Liebmann: "The principle is imbedded in our constitutional system that there are certain essentials of liberty with which the state is not entitled to dispense in the [Page 173] interest of experiments." Thus, the application of strict scrutiny to state gun controls and intermediate scrutiny to federal gun controls is the best result of a synthesis of the Founding, the Reconstruction, and the New Deal.
2. APPLICATION OF THE BEST RESULT OF SYNTHESIS TO MAJOR FIREARMS LAWS
Following the long-delayed success of the Brady Act, there have been many proposals for additional federal firearms laws. A brief discussion of major firearms laws will illustrate how the best synthesis of the Founding, the Reconstruction and the New Deal might be applied.
a. BANS ON CERTAIN WEAPONS
As part of the Violent Crime Control and Law Enforcement Act of 1994, Congress enacted a ban on "semiautomatic assault weapons."[Page 174] The Act provides: "It shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon." There are [Page 175] numerous exceptions to this provision. For example, 18 U.S.C. s 922(v)(2), states that: "[p]aragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under federal law on the date of the enactment of this subsection." The penalty for violating Section 922(v) is up to five years imprisonment.
There are also proposals for banning so-called "Saturday Night Specials," which are cheap, easily concealable handguns, and other short- barreled handguns. Saturday Night Specials are defined in regulations promulgated by the Federal Bureau of Alcohol, Tobacco and Firearms ("ATF"). Short-barreled handguns are targeted for bans because they are preferred by criminals and are easily concealed.
Regulating weapons that are especially dangerous and unnecessary for self- defense is consistent with the New Deal approach to firearm laws, as embodied in the National Firearms Act of 1934. As Rep. Blanton explained [Page 176] in 1934, the National Firearms Act was designed: "to stop gangsters from buying machine guns."
The New Deal precedent of the National Firearms Act of 1934 provides additional support for the conclusion that federal bans on assault weapons would survive the intermediate scrutiny test because they are substantially related to an important governmental objective: crime control. In a study by the Atlanta Journal-Constitution of 42,758 gun trace requests that were submitted to the ATF by police departments from around the nation, it was discovered that an "assault gun is 20 times more likely to be used in a crime than a conventional weapon." For example, the Intratec Tec-9, which is now banned under federal law, "comes equipped with features that give it special appeal to professional lawbreakers. Intratec's sales brochures . . . boast that various models of its weapons are made with Tec-Kote, a special finish that 'provides a natural lubricity to increase bullet velocities' and 'excellent resistance to fingerprints."'
The Michigan Supreme Court, in People v. Brown, upheld a state ban on dangerous weapons and captured the conclusion that a federal ban on assault weapons would be constitutional if subjected to intermediate scrutiny:
Some arms, although they have a valid use for the protection of the state by organized and instructed soldiery in times of war or riot, are too dangerous to be kept in a settled community by individuals, and, in times of peace, find their use by bands of [Page 177] criminals and have legitimate employment only by guards and police.
State bans on assault weapons, however, may have difficulty surviving strict scrutiny. Unless they are worded properly, they may be challenged on the ground that they are not "narrowly tailored." For example, certain firearms often are classified as assault weapons based on their appearance, when, as measured by their performance, they are equivalent to so- called "sporting" rifles that the state has not banned. In such cases, bans of firearms based on appearance rather than performance should be struck down unless the state can prove that enforcement of the ban would be extremely difficult, if not impossible, were the possession of look-alikes legal.
Handgun bans are more troubling, from a Reconstruction perspective, than bans on assault weapons because "[t]he single most common reason for keeping firearms given by owners of handguns, unlike owners of shoulder weapons, is 'self-defense at home."' A ban probably would not survive strict scrutiny but it might survive intermediate scrutiny if supported by specific legislative findings of the danger of handguns.[Page 178]
b. LICENSE REQUIREMENTS
There are several types of license requirements. Many states require a permit or license to possess or carry a firearm. In addition, firearms dealers are required to obtain a federal license. In 1993, President Clinton told a reporter that he was "intrigued by [the] idea . . . [of] calling for either the [F]ederal [G]overnment or the states to establish gun licensing and training systems for potential gun owners, similar to the licensing requirements states now have for motorists." The Clinton Administration also proposed to increase the annual license fee for federal firearms dealers from $66 to $600 to discourage illegitimate dealers from obtaining a license allowing them "to buy guns wholesale from manufacturers and importers and then sell them to criminals from their homes or on the street." Finally, the Treasury Department reclassified three types of [Page 179] shotguns as "destructive weapons," which means that the owners must register the shotguns with the ATF and be finger-printed by the local police.
There is a direct New Deal precedent for these laws in the National Firearms Act of 1934. Most licensing requirements would survive both strict and intermediate scrutiny because licensing laws are relatively unobtrusive yet are extremely beneficial in keeping criminals from obtaining firearms legally. In addition, federal license laws generally are explicitly linked to interstate commerce. Representative Doughton's statement explaining the scope of the National Firearms Act of 1934, that "the ordinary, law-abiding citizen . . . should not be compelled to register his firearms and have his fingerprints taken and be placed in the same class with gangsters, racketeers, and those who are known as criminals[,]" however, raises questions about any firearms licensing program as broad as the licensing programs used for motor vehicles.
Courts applying intermediate or strict scrutiny to license requirements must also ask whether the penalty imposed for violations is sensible given the purpose of the laws. For example, if the firearms licensing system is [Page 180] supposed to serve many of the same purposes as the motor vehicle licensing system, then the penalties should be similar. Hence, a five- year sentence for carrying a firearm without a permit should not be tolerated because a sentence of five years in prison for driving without a license would not be tolerated.
Courts also must ensure that those responsible for implementing the license requirement are not given unguided discretion to deny licenses. For example, in Schubert v. DeBard, an Indiana appellate court, applying the right to bear arms under the state constitution, held that the state could not refuse to issue a license to carry a handgun solely on the ground that the applicant did not have a proper reason to be licensed. The court rejected as unconstitutional the idea that the police superintendent could evaluate whether a citizen actually needed a handgun for self-defense. [Page 181]
c. FELON-IN-POSSESSION LAWS
Some states and the federal government have statutes that make it illegal for convicted felons to possess firearms. The federal statutes, however, require proof of a connection to interstate commerce. These statutes have survived numerous challenges in federal and state court, and probably would pass constitutional muster under both strict and intermediate scrutiny, particularly because they are supported by the New Deal precedent of the Federal Firearms Act of 1938. The more difficult question is whether a felon may be convicted for violating the federal firearms law after a state has restored his political and civil rights. The Supreme Court recently resolved a split in the circuits on this issue.[Page 182]
In United States v. Geyler, the Ninth Circuit contended that the plain language of section 921(a)(20) of Title 18 of the United States Code required that a state's restoration of civil rights removed a federal felony conviction as a predicate offense for the federal firearms law. Section 921(a)(20) provides that:
Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
The court concluded that, although the purpose of a restoration of civil rights, unlike a pardon, is not to nullify the conviction itself, section 921(a)(20) expressly provided that such restoration would nullify any previous convictions for the particular statutory chapter involved. Thus, because Arizona restored the defendant's civil rights, the defendant's earlier federal conviction for misprision of a felony could not be used as a predicate conviction for the charge of being a felon in possession of a firearm, under section 922(g).[Page 183]
In United States v. Edwards, the Eighth Circuit agreed with the Ninth Circuit and held that a Minnesota statute restoring a felon's civil rights once he served his sentence for a federal crime exempted the felon from section 922(g).
The Fourth Circuit, however, reached a different conclusion. In United States v. Beecham, the defendant was convicted as a felon in possession of a gun. The trial court set aside his conviction because Tennessee previously restored his rights after he had completed his sentence for federal gun possession in 1979. The Fourth Circuit reinstated the second conviction, arguing that the Ninth Circuit had focused too narrowly on one phrase in the statute and ignored the overall purpose, which was to "exert greater federal control over the spread of firearms." The court concluded that "Congress intended for a state's post- conviction restoration scheme to affect only the rights of persons convicted in that state's courts. The court reasoned that its conclusion was compelled by the federal courts' preference for determining the meaning of federal criminal legislation without reliance on diverse state laws."
The Supreme Court affirmed. The Court held that the choice-of-law clause in Section 921(a)(20) of Title 18, which provides "[w]hat constitutes a conviction . . . shall be determined in accordance with the law of the jurisdiction in which the proceedings were held[,]" applies to the exemption clause for persons who have had their civil rights restored, and [Page 184] therefore, a person convicted of a federal felony could qualify for the exemption only if their civil rights had been restored under federal law.
The argument that states cannot prevent the federal government from regulating firearms possession by federal felons becomes compelling when the New Deal and Reconstruction expansions of federal power are considered. The Supreme Court's decision in Beecham was consistent with the modern meaning of the right to bear arms.
d. WAITING PERIODS
After years of heated debate, the Brady Act, which establishes a national five business day waiting period for handgun purchases, was passed by Congress in November of 1993. Twenty-three states, plus the District of Columbia, have laws establishing a mandatory waiting period [Page 185] to purchase a pistol or a handgun. The length of time involved ranges from less than one day to six months. 
Waiting periods serve a different purpose than the background checks that usually accompany them, which may be completed in a few hours.  Waiting periods are designed to prevent violence by allowing someone who is upset to "cool off" before he can obtain a firearm and impulsively shoot at the object of his anger. After analyzing the underlying premises supporting arguments for waiting periods and a 1982 study of Florida prison system inmates, Gary Kleck concluded that "it is highly unlikely that waiting periods, by themselves, could prevent even as many as 1 in 200 gun killings." From a public policy perspective, even a low rate of success could justify the imposition of a waiting period if it had even smaller social costs. From a constitutional perspective, a five-day federal waiting period probably would survive intermediate scrutiny, but an equivalent, or longer, state waiting period probably would not survive strict scrutiny unless it contained an exigent circumstances exception.
In fact, the Brady Act would pass constitutional muster under either strict or intermediate scrutiny because it is not a "pure" waiting period. It is a means of facilitating background checks so that felons may be prevented [Page 186] from purchasing firearms. In addition, the Brady Act allows a person to obtain a firearm without waiting where there is a threat to the life of that person or a member of the person's household. This exception alone should not be sufficient for "pure" state waiting periods under strict scrutiny, however, because it provides no guidelines for the police officer to use in making such a determination and it provides no means for review of the officer's determination. The exception also does not mandate that the officer make a determination within a reasonable period of time.
As the discussion of four major categories of gun controls illustrates, the level of scrutiny applied is of crucial importance. When federal gun [Page 187] controls are subjected to intermediate scrutiny and state gun controls are subject to strict scrutiny, only felon-in-possession laws are secure. State bans on assault weapons must be drawn carefully. The penalties for violations of licensing requirements must be proportionate to the offense. State waiting periods must contain an exception for those who need a firearm immediately to defend themselves.
The right to bear arms is not obsolete. Although it is settled judicial doctrine that the Second Amendment operates only to restrain the federal government and protects only weapons that are reasonably related to the preservation or efficiency of a well-regulated militia, recent reexaminations of historical sources demonstrate that the framers of the Fourteenth Amendment explicitly intended to prevent the states from infringing the fundamental right of every citizen to bear arms for self-defense. The New Deal, however, expanded federal power, including the power to regulate firearms, and repudiated the Reconstruction idea of freedom of contract as an individual right without rejecting the Reconstruction guarantee of an individual right to bear arms.
A synthesis of the constitutional principles endorsed during the Founding, the Reconstruction, and the New Deal suggests several ways in which the right to bear arms maintains its meaning. First, the federal armed forces have replaced the general militia as a means of national defense against riots or domestic insurrections. The Founders' concern that such "select" militias may be used tyrannically, however, is still valid, as illustrated during the protests over the Vietnam War. With the professionalization of the armed forces, we have lost one of the checks on tyranny. Although the Reconstruction Republicans resisted presidential efforts to control the military, Congress, during periods of normal politics, has acceded in the presidential usurpation of power over these forces. The best synthesis of the Founding, the Reconstruction, and the New Deal would give Congress the power to decide when the national armed forces may be used, while allowing the President to make tactical decisions during hostilities in accordance with his role as Commander in Chief.
For gun controls, the best synthesis of the Founding, the Reconstruction, and the New Deal is to borrow from pre- Adarand equal protection doctrine and require that federal gun controls be substantially related to an important governmental objective and that similar state action be narrowly tailored to serve a compelling state interest. This "two-tiered" synthesis of the Founding, the Reconstruction, and the New Deal is consistent with the intent of the framers of the Fourteenth Amendment, who stated clearly that the states could not abridge the "privileges or immunities [Page 188] of citizenship," and with the constitutional principles espoused during the New Deal, which expanded federal power without rejecting the Reconstruction Republicans' reading of the Second Amendment.
Copyright © 1995 Seton Hall University, Seton Hall Constitutional Law Journal and Sayoko Blodgett-Ford
* J.D. 1994 Yale Law School. Currently an Associate at Foley, Hoag and Eliot in Boston, Massachusetts. This article was prepared prior to the authors association with Foley, Hoag and Eliot. The views represented herein are solely those of the author and do not in any way reflect the views of Foley, Hoag and Eliot.
1. U.S. Const. amend. II. The Second Amendment was ratified effective Dec. 15, 1791.
2. U.S. Const. amend. XIV, § 1. The Fourteenth Amendment took effect on July 9, 1868.
3. Franklin D. Roosevelt, Campaign Speech delivered at the Commonwealth Club in San Francisco, September 23, 1932, in HOWARD ZINN, NEW DEAL THOUGHT 52 (1966) [hereinafter Roosevelt, Commonwealth Club Speech].
4. "[T]he second amendment is not taken seriously by most scholars." Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 640 (1989) (quoting L.H. LaRue, Constitutional Law and Constitutional History, 36 BUFFALO L. REV. 373, 375 (1988)). A representative sample of the leading cases and scholarly writings in this area is provided in Robert J. Cottrol's 1993 three-volume set, GUN CONTROLS AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE SECOND AMENDMENT (Robert J. Cottrol & Paul Finkleman eds., 1993) [hereinafter GUN CONTROLS AND THE CONSTITUTION].
5. See, e.g., STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT (1984); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309 (1991); Robert Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (1989) (author was Deputy General Counsel for the National Rifle Association); David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV. J.L. & PUB. POL'Y 559 (1986); Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983).
6. See, e.g., Rachel J. Littman, Comment, Gun-Free Schools: Constitutional Powers, Limitations, and Social Policy Concerns Surrounding Federal Regulation of Firearms in Schools, 5 SETON HALL CONST. L.J. 723, 729-43 (1995); see also 1 GUN CONTROLS AND THE CONSTITUTION, supra n.4, at 188 (reprinting June 26, 1981 statement of the National Coalition to Ban Handguns) (quoting AMERICAN CIVIL LIBERTIES UNION Policy # 43)):
The Union agrees with the Supreme Court's long-standing interpretation of the Second Amendment that the individual's right to keep and bear arms applies only to the preservation or efficiency of a "well-regulated militia." Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected.
Id.; see generally JOHN HART ELY, DEMOCRACY AND DISTRUST 94-95, 227 n.76 (1980) [hereinafter ELY, DEMOCRACY AND DISTRUST]; LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-2, at 299 n.6 (2d ed. 1988); G. NEWTON & F. ZIMRING, FIREARMS AND VIOLENCE IN AMERICAN LIFE 113 (1970); John Levin, The Right to Bear Arms: The Development of the American Experience, 48 CHI.-KENT L. REV. 148 (1971); Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q. 961 (1975).
7. The Supreme Court has analyzed the Second Amendment in only four decisions. See United States v. Miller, 307 U.S. 174, 178 (1939) (stating that the Second Amendment protects arms "that bear a reasonable relationship to the preservation. . . . of a well-regulated militia"); Miller v. Texas, 153 U.S. 535, 538 (1894) (asserting that the Second Amendment "operate[s] only upon the Federal power, and ha[s] no reference whatever to proceedings in state courts"); Presser v. Illinois, 116 U.S. 252, 265 (1886) (mentioning that the Second Amendment "is a limitation only upon the power of Congress and the National government"); United States v. Cruikshank, 92 U.S. 542, 553 (1875) (stating that the Second Amendment "has no other effect than to restrict the powers of the national government").
8. See infra notes 120-25, 290-92, 330 and accompanying text (discussing the "incorporation" theory); Near v. Minnesota, 283 U.S. 697 (1931) (incorporating freedom of the press); Stromberg v. California, 283 U.S. 359 (1931) (incorporating freedom of speech); cf. Gitlow v. New York, 268 U.S. 652, 666 (1925) (suggesting in dictum that freedom of speech is protected by the Due Process Clause).
9. See generally MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986); Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1266 (1992) (argument for "refined incorporation"); Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993).
10. The Fourteenth Amendment to the United States Constitution states in relevant part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ...." U.S. CONST. amend XIV.
11. See generally Stephen P. Halbrook, 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); Sayoko Blodgett-Ford, Do Battered Women Have a Right to Bear Arms?, 11 YALE L. & POL'Y REV. 509 (1993); cf. William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236, 1251-53 (1994).
12. 18 U.S.C. § 922(q) (1994). The Supreme Court recently resolved a split in the circuits by holding the Act unconstitutional on the grounds that the possession of a gun in a local school zone is not an economic activity that could have a substantial effect on interstate commerce and that the statute did not require any connection to interstate commerce. See United States v. Lopez, 115 S.Ct. 1624, 1626 (1995), discussed infra notes 180-88, 193-95 and accompanying text.
13. See, e.g., Sara Rimer, Terror in Oklahoma: The Far Right, N.Y. TIMES, Apr. 27, 1995, at A1.
14. See, e.g., JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMRICAN RIGHT (1994); Halbrook, supra note 5. These sources are immensely valuable in providing an enhanced historical understanding of the meaning of arms-bearing, Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 YALE L.J. 995 (1995), but they are not grounded in a cohesive theory of constitutional interpretation that can link historical developments together and then connect such developments to modern times.
15. See JOHN HART ELY, DEMOCRACY AND DISTRUST, supra note 6, at 101, 105.
16. The dualistic and synthetic approach was developed by Bruce Ackerman. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter ACKERMAN, FOUNDATIONS]; Bruce Ackerman, We the People: Transformations (1994) (unpublished manuscript, on file with the author) [hereinafter Ackerman, Transformations].
17. See generally ACKERMAN, FOUNDATIONS, supra note 16; Ackerman, Transformations, supra note 16.
18. "[T]he text of the Second [Amendment] is broad enough to protect rights of discrete individuals or minorities, but the Amendment's core concerns are populism and federalism." Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1162 (1991). But see Garry Wills, To Keep and Bear Arms, N.Y. REV., Sept. 21, 1995, at 62. Further, historian Robert Shalhope notes that "the armed citizen and the militia existed as distinct, yet dynamically interrelated elements within American thought; it was perfectly reasonable to provide for both within the same amendment to the Constitution." Robert E. Shalhope, The Armed Citizen in the Early Republic, 49 LAW & CONTEMP. PROBS. 125, 139, 141 (1986).
19. See Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993) (arguing that if circumstances have changed dramatically, the judiciary may have to change the operation of a textual clause in the Constitution in order to be faithful to its original meaning).
20. See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551, 556, 612-14 (1991); cf. Elaine Scarry, War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms, 139 U. PA. L REV. 1257 (1991).
21. The rational basis test applies to general economic legislation. Such legislation often will be upheld if it is conceivable that the classification is rationally related to a legitimate state interest. RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 18.3 at 14 (2d ed. 1992 & Supp. 1995); see also infra note 312 and accompanying text.
The intermediate scrutiny test has been used for classifications based on gender and illegitimacy, and for affirmative action statutes. See ROTUNDA, supra, at 16-19. In order to survive intermediate scrutiny, a classification must have a substantial relationship to an important state interest. Id.; see also infra note 314 and accompanying text.
The strict scrutiny test applies to legislation that restricts the exercise of fundamental constitutional rights or distinguishes on a "suspect" basis, such as race or national origin. See ROTUNDA, supra, at 15-16; see also infra note 313 and accompanying text. The strict scrutiny test requires proof that the classification is narrowly tailored to serve a compelling state interest. Id.
22. See generally ACKERMAN, FOUNDATIONS, supra note 16; Ackerman, Transformations, supra note 16.
23. See, e.g., ACKERMAN, FOUNDATIONS, supra note 16, at 30-32.
24. U.S. CONST. amend. XXVI, § 1.
25. See ACKERMAN, FOUNDATIONS, supra note 16, at 159-62.
26. See, e.g., id. at 44-50.
27. 83 U.S. (16 Wall.) 36 (1873).
28. Id. at 78. See also United States v. Bass, 404 U.S. 336, 349 (1971) ("[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance....").
29. Of course, there may be some confusion regarding whether the members of Congress agreed about the precise meaning of the statute. See, e.g., JOHN HART ELY, WAR AND RESPONSBIBILITY 16 (1993) [hereinafter ELY, WAR] (noting Senator Fulbright's claim that the passage of the Tonkin Gulf Resolution in 1964 "must stand as the only instance in the nation's history in which Congress authorized war without knowing it was doing so").
30. See generally JAMES L. SUNDQUIST, DYNAMICS OF THE PARTY SYSTEM: ALIGNMENT AND RELAIGNMENT OF POLITICAL PARTIES IN THE UNITED STATES 198-239 (1983).
31. The answer to these questions is too lengthy to be provided here, and has already been offered by Ackerman. See Ackerman, Transformations, supra note 16.
32. U.S. CONST. amend. II.
33. See also HALBROOK, supra note 5, at 55-65 (discussing Bacon's Rebellion of 1676, British efforts to disarm the populace, and the value of the independent militias); cf. Hardy, supra note 5, at 584-99; BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 61-63 (1967) (discussing well- founded fear of a standing army).
34. See BAILYN, supra note 33, at 61-63. Article I, section eight of the United States Constitution states in relevant part:
Congress shall have Power. . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years. . . .
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress ....
U.S. CONST. art. I, § 8; cf. Booth v. Town of Woodbury, 32 Conn. 118, 126 (1864) ("In authorizing, under the power to raise armies, a national conscription by the national government, the Constitution so far forth ignores the state governments entirely; although it is otherwise in respect to the militia. . . .").
35. U.S. CONST. art. I, § 10 ("No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."); see generally THE FEDERALIST No. 45, 292-293 (J. Madison) (C. Rossiter ed., 1961) (explaining that federal powers are strictly limited under the Constitution while the states retain broad powers); cf. THE FEDERALIST No. 84, 513 (1961) (Alexander Hamilton) (writing that the Constitution intended to regulate only the general affairs of the nation).
36. THE BILL OF RIGHTS, A DOCUMENTARY HISTORY 606 (B. Schwartz ed., 1971), quoted in CURTIS, supra note 9, at 20 (emphasis added).
37. Hardy, supra, note 5, at 559, 603 (1986) (citing DEBATES AND PROCEEDINGS IN THE CONVENTION OF THE COMMONWEALTH OF MASSACHUSETTS 86-87 (Boston, Pierce & Hale eds., 1856)).
38. Id. at 603-04 (citing H.R. Doc. No. 398, 69th Cong., 1st Sess. 1026 (1927)).
39. Id. at 603.
40. Id. (citing 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION FO THE CONSTITUTION 597-98 (M. Jensen ed., 1976)).
41. Hardy notes that "Madison, when drafting the Bill of Rights in the First Congress, worked from a reprint of state demands that was headed by the Pennsylvania report." Id. It is generally accepted among legal scholars that, in light of its explicit reference to "the security of a free State," the Second Amendment does not guarantee an individual right of self-defense against common criminals. See, e.g., Williams, supra note 20, at 586-88.
42. See Hardy, supra note 5, at 611.
43. Hardy supra note 5, at 601 (quoting RICHARD HENRY LEE, LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 21-22 (W. Bennett ed., 1978)).
44. See Williams, supra note 20, at 594.
45. As the Supreme Court explained in Perpich v. Department of Defense:
In 1792, [Congress] did pass a statute that purported to establish "an Uniform Militia throughout the United States," but its detailed command that every able-bodied male citizen between the ages of 18 and 45 be enrolled therein and equip himself with appropriate weaponry was virtually ignored for more than a century, during which time the militia proved to be a decidedly unreliable fighting force. The statute was finally repealed in 1901. It was in that year that President Theodore Roosevelt declared, "Our militia law is obsolete and worthless." The process of transforming "the National Guard of the several States" into an effective fighting force then began.
Perpich, 496 U.S. 334, 341-42 (1990) (footnotes omitted).
46. See, e.g., Kates, supra note 5; HALBROOK, supra note 5.
47. See Williams, supra note 20, at 552-53; Amar, supra note 18, at 1162.
48. David Yassky, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1710 (1991) [hereinafter Yassky, Eras of the First Amendment].
50. 1 Ga. (1 Kelly) 243 (Ga. 1846).
51. Id. at 251.
52. See Miller v. Texas, 153 U.S. 535, 538 (1894) (asserting that the Second Amendment "operate[s] only upon the Federal power, and ha[s] no reference whatever to proceedings in state courts"); Presser v. Illinois, 116 U.S. 252, 264-65 (1886) (noting that the Second Amendment "is a limitation only upon the power of Congress and the National Government"); United States v. Cruikshank, 92 U.S. 542, 553 (1875) (mentioning that the Second Amendment "has no other effect than to restrict the powers of the national government").
53. United States v. Miller, 307 U.S. 174, 178 (1939).
54. U.S. CONST. amend. XIV, § 1 (emphasis added). The Fourteenth Amendment was ratified on July 9, 1868.
55. Although this Article will discuss only statements related to the right to bear arms, the framers of the Fourteenth Amendment had a broad understanding of the privileges or immunities of citizenship. See generally CURTIS, supra note 9.
56. 83 U.S. (16 Wall.) 36 (1873).
57. 83 U.S. (16 Wall.) 130 (1873).
58. Near v. Minnesota, 283 U.S. 697 (1931) (freedom of the press); Stromberg v. California, 283 U.S. 359 (1931) (freedom of speech); cf. Gitlow v. New York, 268 U.S. 652, 666 (1925) (dictum suggesting that freedom of speech was protected by the due process clause).
59. U.S. CONST. amend. XIII (abolishing slavery) (ratified December 6, 1865); U.S. CONST. amend. XIV (ratified July 9, 1868); U.S. CONST. amend. XV (guaranteeing blacks the right to vote) (ratified February 3, 1870).
60. Scott v. Sandford, 60 (19 Wall.) 393 (1856) (holding that the word "citizen" in the Constitution does not embrace a member of the black race and that the Constitution expressly affirms a property right in slaves).
61. See CURTIS, supra note 9, at 104.
62. CURTIS, supra note 9, at 72, 217 n.116 (emphasis added) (citing CONG. GLOBE, 39th Cong., 1st sess., 654, 743, 1292 (1866)).
63. CURTIS, supra note 9, at 52.
64. Id. at 53 (citation omitted).
65. Id. (citation omitted).
67. Id. at 56 (citation omitted).
68. Id. at 70 (quoting Bingham speech of February 28, 1866).
69. Id. at 88 (emphasis added).
70. As Senator Howard stated:
Now . . . here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, . . . some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights . . . do not operate in the slightest degree as a restraint or prohibition upon State legislation.
71. See Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 YALE L.J. 57 (1993) (arguing that the Fourteenth Amendment applies the first eight amendments to the states).
72. See Cottrol & Diamond, supra note 5, at 336-38 (discussing laws in Texas, Mississippi, Kansas, Florida, Georgia, Louisiana, and North Carolina). See HALBROOK, supra note 5, at 107-53, for a discussion of the black experience with the right to bear arms.
73. Cottrol & Diamond, supra note 5, at 337 (citing 1825 Acts of Fla. 52, 55); cf. Lone Survivor of Atrocity Recounts Events of Lynching, N.Y. AMSTERDAM NEWS, June 1, 1927, reprinted in RALPH GINZBERG, 100 YEARS OF LYNCHINGS 175-78 (1988). The New York article described how the sheriff of Aiken, South Carolina and three deputies attempted a warrantless search of a black household and hit a black woman. Id. at 176. The woman's relatives used a hatchet and firearms to defend themselves and killed the sheriff. Id. They were taken into custody and, after the first one was acquitted of murder, all three were lynched. Id. at 177.
74. See Cottrol & Diamond, supra note 5, 339-42.
75. Id. at 341-42.
76. ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 1863- 1877, 199-201 (New American Nation Series, Henry Steele Commager & Richard B. Morris eds., 1988).
77. 60 U.S. (19 How.) 393, 417 (1857).
78. Id. at 416-17.
79. Id. at 417.
80. Cf. HERBERT APTHEKER, AMERICAN NEGRO SLAVE REVOLTS 293-324 (5th ed. 1983) (discussing Nat Turner slave revolt in Virginia in 1831, during which at least fifty-seven white people were killed).
81. CURTIS, supra note 9, at 35 (1986) (footnote omitted).
82. The statute also provided that "[a]ny one violating the provisions of this section shall forfeit his weapons and pay a fine of five dollars, or in default of the payment of said fine, shall be forced to work five days on the public road, or suffer corporal punishment as hereinafter provided." See Cottrol & Diamond, supra note 5, at 344 n.176 (citation omitted).
83. One historian, Michael Benedict, described the incident:
The police and white Louisianans, in a paroxysm of hatred and fear, mobbed the delegates. Ignoring white handkerchiefs that [delegates] ran up the flagpole and waved from the windows of the [Mechanics] Institute, the mob fired into the building, shot loyalists as they emerged, and pursued them through the streets, clubbing, beating, and shooting all they caught. Forty of the delegates and their supporters were killed, another one hundred and thirty-six wounded.
CURTIS, supra note 9, at 136 (quoting MICHEAL BENEDICT, A COMPROMISE OF PRINCIPLE 205-06 (1974)).
84. CONG. GLOBE, 39th Cong., 1st Sess. 941 (1866), quoted in HALBROOK, supra note 5, at 110).
85. As one author described:
White staffed urban police forces as well as state militias, intended, as a Mississippi white put it in 1865, to "keep good order and discipline among the negro population." Although disorder was hardly confined to blacks, virtually all the militiamen patrolled black belt counties. Often composed of Confederate veterans still wearing their gray uniforms, they frequently terrorized the black population, ransacking their homes to seize shotguns and other property and abusing those who refused to sign plantation labor contracts. Louisiana blacks called the militia the "patrol," a reminder of slavery days, and could not understand "why men who but a few months since were in armed rebellion against the government should now have arms put in their hands."
FONER, supra note 76, at 203-04 (footnote omitted).
86. H.R. No. 63, CONG. GLOBE, 39th Cong., 1st Sess. 1266 (1866).
87. As Foner notes:
While insisting that, as citizens, the former slaves enjoyed the right to bear arms, Freedmen's Bureau officers strongly discountenanced any talk of self- defense or retaliation by blacks against violence. They advised freedmen to rely instead on local and federal protection. But many agents found suppressing violence a difficult and frustrating task. "A freedman is now standing at my door," one agent wrote in 1866, "his tattered clothes bespattered with blood from his head caused by blows inflicted by a white man with a stick and we can do nothing for him . . . Yet these people flee to us for protection as if we could give it."
FONER, supra note 76, at 148 (emphasis added) (footnote omitted).
88. 26 F. Cas. 79 (C.C.S.D. Ala. 1871) (No. 15,282).Judge William B. Woods, who authored the Hall opinion, later was appointed to the Fifth Circuit, where he held for the plaintiffs in the Slaughter-House Cases. See CURTIS, supra note 9, at 171-72. In 1880, Judge Woods was appointed to the Supreme Court. Id. at 172.
89. Hall, 26 F.Cas. at 79.
90. Id. at 80.
91. Id. at 81-82. The court stated:
By the original Constitution citizenship in the United States was a consequence of citizenship in a state. By [the privileges and immunities] clause this order of things is reversed. Citizenship in the United States is defined; it is made independent of citizenship in a state . . . . What are the privileges and immunities of citizens of the United States here referred to? They are undoubtedly those which may be demonstrated fundamental; which belong of right to the citizens of all free states . . . . Among these we are safe in including those which in the constitution are expressly secured to the people, either as against the action of federal or state governments . . . . We think, therefore, that the right of freedom of speech, and the other rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States.
Id. (emphasis added).
92. 83 U.S. (16 Wall.) 36 (1873).
93. Id. at 43.
94. Id. at 74.
95. Id. at 78-80.
96. The Court expressly noted its preservationist function:
But when, as in the case before us, these consequences are so serious, so far- reaching and pervading, so great a departure from the structure and spirit of our institutions; . . . when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.
Id. at 78.
97. 83 U.S. (16 Wall.) 130 (1873). The Slaughter-House Cases were decided on April 14, 1873. Bradwell v. State was decided the following day. Myra Bradwell's lawyer on appeal, Senator Matthew Hale Carpenter, argued in favor of the state legislation in the Slaughter-House Cases. Compare Bradwell, 83 U.S. at 57 with Slaughter-House Cases, 83 U.S. at 133. For a discussion of the Bradwell case, see Frances Olsen, From False Paternalism to False Equality: Judicial Assaults on Feminist Community, Illinois 1869-1895, 84 MICH. L. REV. 1518 (1986).
98. Bradwell, 83 U.S. at 139.
101. One contemporary who believed that United States citizens had absolute constitutional rights also believed that gender-based distinctions, which he grouped with distinctions based on age and mental capacity, could be recognized. See CONG. GLOBE, 39th Cong., 1st Sess. 1832 (1866) (Judge William Lawrence of Ohio).
102. CURTIS, supra note 9, at 178.
103. Section 6 of the Enforcement Act of 1870 provided:
[I]f two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States or because of his having exercised the same, such persons shall be held guilty of a felony . . . .
Enforcement Act of 1870, Pub. L. No. 41-114, § 6, 16 Stat. 140 (codified as amended at 18 U.S.C. § 241 (1994)).
104. CURTIS, supra note 9, at 178.
106. 92 U.S. 542 (1875).
107. Id. at 553.
108. CURTIS, supra note 9, at 178.
109. Id. at 544-45.
110. Id. at 552.
111. See, e.g., Negro Suspect Eludes Mob; Sister Lynched Instead, N.Y. TRIB. Mar. 17, 1901, reprinted in GINZBURG, supra note 73, at 38; Cottrol & Diamond, supra note 5, at 351-52.
112. Because it involved private action rather than state action, the holding in Cruikshank may have been consistent with the intent of the framers.
113. Curtis recounts:
In 1876 the Democratic presidential candidate won a majority of the popular vote. The electoral vote was close and hung on the outcome in disputed southern states. By the compromise of 1877 the election was given to the Republicans. In return, federal troops were to be withdrawn from the South, leaving blacks and southern Republicans to their own devices.
For a brief shining moment during and after the Civil War, protection of blacks had been associated with the cause of the Union. By the mid-1870s protection of blacks seemed to disrupt national unity, and the commitment to protection of their rights faded away as quickly as it had come.
CURTIS, supra note 9, at 180 (endnote omitted).
114. Id. at 178 (citation omitted).
115. 116 U.S. 252, 264 (1886).
116. 153 U.S. 535, 538 (1894).
117. In Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), the Seventh Circuit reaffirmed the principle that the Second Amendment does not apply to the states, although the court acknowledged that there was strong historical evidence to the contrary. Id. at 270-71. The Quilici court upheld a ban on handguns by the Village of Morton Grove as a reasonable exercise of the Village's police power. Id. at 269. The Supreme Court denied certiorari. Quilici v. Village of Morton Grove, 464 U.S. 863 (1983).
In Fresno Rifle and Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992), the Ninth Circuit rejected the argument that the Fourteenth Amendment guaranteed an individual right to bear arms. Id. at 729. In Fresno Rifle, the court upheld California's Assault Weapons Control Act of 1989, stating:
Nor are we influenced to change this view by remarks of various legislators during passage of the Freedmen's Bureau Act of 1866, the Civil Rights Act of 1866, and the Civil Rights Act of 1871. The plaintiffs argue that these remarks show that the framers of the Fourteenth Amendment intended that the Second Amendment guarantee an individual right of persons to acquire and keep rifles, pistols, and shotguns. While they provide an interesting insight that the plaintiffs assert is newly discovered, the point is the same: Cruikshank, which was decided only five years after the adoption of the 1871 Act, and Presser both make clear that the Second Amendment binds only the national government.
Id. The court apparently did not believe that the dramatic changes that had occurred during those five years made the opinion of the Supreme Court judges very different from that of the framers of the Fourteenth Amendment. The latter should be entitled to greater deference.
118. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968) (Sixth Amendment right to trial by jury); Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel in felony cases); Mapp v. Ohio, 367 U.S. 643 (1961) (unreasonable searches and seizures); Everson v. Bd. of Educ., 330 U.S. 1 (1947) (religion clauses); Cantwell v. Connecticut, 310 U.S. 296 (1940) (religion clauses); De Jonge v. Oregon, 299 U.S. 353 (1937) (freedom of assembly); Powell v. Alabama, 287 U.S. 45 (1932) (right to appointment and effective assistance of counsel); Near v. Minnesota, 283 U.S. 697 (1931) (First Amendment); Stromberg v. California, 283 U.S. 359 (1931) (free speech and freedom of the press). But see Adamson v. California, 332 U.S. 46 (1947) (5-4 decision) (holding that the Fifth Amendment privilege against self-incrimination does not apply to the states); Palko v. Connecticut, 302 U.S. 319 (1937) (holding that the double jeopardy clause does not apply to the states), overruled in Benton v. Maryland, 395 U.S. 784 (1969).
119. See generally JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 332-34 (4th ed. 1991) (Nowak and Rotunda also mention the Eighth Amendment's prohibition on excessive fines but conclude that it "may already have been impliedly made applicable to the states").
120. Professor Amar elaborated:
[T]he very same words "the right . . . to keep and bear arms" take on a different colorization and nuance when they are relabeled "privileges or immunities of citizens" rather than "the right of the people," and when they are severed from their association with a well-regulated militia . . . . [T]he core applications and central meanings of the right to keep and bear arms and other key rights were very different in 1866 than in 1789. Mechanical incorporation obscured all this, and, indeed, made it easy to forget that when we "apply" the Bill of Rights against the states today, we must first and foremost reflect on the meaning and the spirit of the Amendment of 1866, not the Bill of 1789.
Amar, supra note 9, at 1266; see also id. at 1197 (arguing for "refined incorporation").
121. See CURTIS, supra note 9, at 47-56. But see Steven G. Calabresi, Note, A Madisonian Interpretation of the Equal Protection Doctrine, 91 YALE L.J. 1403, 1420 (1982) ("[T]he framers of the Fourteenth Amendment trusted Congress to remedy past discrimination but did not trust the states to do so.").
122. See CURTIS, supra note 9, at 47 (discussing statements made by Congressman Bingham during debate on emancipation in the District of Columbia); cf. infra notes 340-74 and accompanying text (discussing the possibility of strictly limiting state gun control laws while deferring to federal gun control laws).
123. Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857).
124. The Slaughter-House Case, 83 U.S. (16 Wall.) 36, 119 (1873) (Bradley, J. dissenting).
125. See ACKERMAN, FOUNDATIONS, supra note 16, at 336 nn.22 & 23; see also WILLIAM NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 63 (1988):
The debates about the Fourteenth Amendment were, in essence, debates about high politics and fundamental principles ¾ about the future course and meaning of the American nation. The debates by themselves did not reduce the vague, open- ended, and sometimes clashing principles used by the debaters to precise, carefully bounded legal doctrine. That would be the task of the courts . . . .
126. "Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form." ARTHUR M. SCHLESINGER, JR., THE POLITICS OF UPHEAVAL 449 (1960) (quoting Roosevelt's Inaugural Address). "We have undertaken a new order of things, yet we progress to it under the framework and in the spirit and intent of the American Constitution." Id. (quoting speech by President Roosevelt in 1935).
127. SUNDQUIST, supra note 30, at 202 (quoting President Hoover's statements in 1931).
128. 300 U.S. 379 (1937) (5-4 decision).
129. See generally NORMAN ABRAMS, FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT 32-117 (1986); see also United States v. Lopez, 115 S.Ct. 1624 (1995) (striking down a federal statute that prohibited gun possession within a school zone); Barrett v. United States, 423 U.S. 212 (1976) (upholding federal jurisdiction over isolated intrastate receipt of a weapon by a felon); Scarborough v. United States, 431 U.S. 563 (1977) (affirming the conviction of a felon under a federal statute for the possession of a firearm where only a "minimal nexus" between interstate commerce and possession of the firearm was required).
130. See National Firearms Act of 1934, Pub. L. No. 73-474, ch. 757, 48 Stat. 1236 (codified as amended at 26 U.S.C. §§ 2720-2733, 3260-3263, 5845 (1988 & Supp. V. 1993)); see also Undetectable Firearms Act of 1988, Pub. L. No. 100-649, 102 Stat. 3816 (codified as amended in scattered sections of 18 U.S.C. (1994)); Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified as amended in scattered sections of 18 and 26 U.S.C.) (upheld against Second Amendment challenge in United States v. Lauchli, 444 F.2d 1037, 1041 (7th Cir. 1971), cert. denied, 404 U.S. 868)); Federal Firearms Act of 1938, ch. 850, 52 Stat. 1250 (codified as 18 U.S.C. ss 921-28 (1988)), repealed by Act of June 19, 1968, Pub. L. No. 90-351, s 906, 82 Stat. 234); United States v. Evans, 712 F.Supp. 1435 (D. Mont. 1989), aff'd, 928 F.2d 858 (upholding a ban on machine guns).
131. 3 FRANKLIN DELANO ROOSEVELT, THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT: THE ADVACE OF RECOVERY AND REFORM: 1934, at 242 (Samuel I. Rosenman ed., 1938). In a note, added in 1937, Roosevelt explained:
It had become evident by the beginning of my Administration that the Federal legal and administrative machinery for the detection, prosecution and punishment of crime required complete overhauling. Crime control had traditionally, with few exceptions, been left to the various States and localities. New instrumentalities, however, such as the automobile, the airplane, the telephone and telegraph had enabled many crimes to go undetected and unpunished because of the inability of the respective States to cope with criminals who could travel and communicate from State to State with great speed.
Id. at 242-43.
133. Id. at 243-44. President Roosevelt was referring to the National Firearms Act of 1934, which, among other things, imposed a tax of $200 on machine guns and short-barreled firearms transferred in the continental United States. §§ 2(a), 3(a), 48 Stat. at 1237 (imposing $200 transfer tax on machine guns and short-barreled firearms); s 4, 48 Stat. 1237-38 (requiring licenses for interstate transportation of firearms). The Act was essentially a ban on the transfer of machine guns, because $200 in 1934 dollars would be roughly equivalent to $2000 in 1991 dollars. See 101 Proceedings of the AMERICAN ANTIZUARIAN SOCIETY, part 2 (1991), reprinted in JOHN J. MCCUSKER, HOW MUCH IS THAT IN REAL MONEY?: A HISTORICAL PRICE INDEX FOR USE AS A DEFLATOR OF MONEY VALUES IN THE ECONOMY OF THE UNITED STATES 297, 312, 328 table A-2 (1992).
By comparison, Senator Moynihan recently proposed to increase the tax on ammunition from 11% to 50%, and by 10,000 percent for certain especially dangerous ammunition. Adam Clymer, Moynihan Asks Big Tax Increase on Ammunition, N.Y. TIMES, Nov. 4, 1993, at A1, B20 (Senator Moynihan noted that "the nation has a 200-year supply of guns but only a 4-year supply of ammunition."). The tax would raise the cost of a single box of Winchester 9- millimeter hollow-tipped Black Talon cartridges to almost $150,000. Id. at B20. The provision was aimed at "criminals, racketeers, and gangsters," not at law-abiding citizens who needed firearms for self-defense. As Representative Doughton of North Carolina explained in introducing H.R. 9741, which later became the National Firearms Act:
For some time this country has been at the mercy of the gangsters, racketeers, and professional criminals. The rapidity with which they can go across State lines has become a real menace to the law-abiding people of this country. When the bill was first proposed by the Department of Justice it affected pistols and revolvers, but that provision was eliminated from the bill, and it now only relates to machine guns and sawed-off shotguns and rifles, or guns with barrels less than 18 inches in length, and to mufflers, and to silencers.
. . . .
Protests came to the committee from some ladies' organizations throughout the country objecting to the elimination of pistols and revolvers. The majority of the committee were of the opinion, however, that the ordinary, law-abiding citizen who feels that a pistol or a revolver is essential in his home for the protection of himself and his family should not be classed with criminals, racketeers, and gangsters; should not be compelled to register his firearms and have his fingerprints taken and be placed in the same class with gangsters, racketeers, and those who are known as criminals.
. . . .
It does not in any way interfere with the rights of the States.
78 CONG. REC. 11400 (daily ed. June 13, 1934). A later exchange also continued the gangster theme. Representative Blanchard asked "what is this [H.R. 9741] all about?" to which Representative Blanton replied that is was "to stop gangsters from buying machine guns." Id. at 12543 (daily ed. June 18, 1934). Indeed, Representative Samuel B. Hill stated that "[t]he National Rifle Association approves the bill." Id. at 12555.
134. See 15 U.S.C. § 902(f) (1940), repealed by Pub. L. No. 90-351, Title IV, § 906, 82 Stat. 234 (1968).
135. Federal Firearms Act of 1938, ch. 850, s 2(f), 52 Stat. 1250, 1251 (codified as 18 U.S.C. ss 921-28 (1988)), repealed by Act of June 19, 1968, Pub. L. No. 90-351, s 906, 82 Stat. 234 (1968). "Crime of violence" was defined as "murder, manslaughter, rape, mayhem, kidnapping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year." s 1(6), 52 Stat. at 1250.
136. § 2(f) 52 Stat. at 1251.
137. ROOSEVELT, supra note 131, at 243.
138. 307 U.S. 174, 178 (1939).
139. The Supreme Court has discussed the Second Amendment in passing in at least two other cases. In Adams v. Williams, 407 U.S. 143, 150 (1972) (Douglas, J., dissenting), Justice Douglas, joined by Justice Marshall, wrote:
A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment ....
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
Id. In Lewis v. United States, the Court upheld the Gun Control Act of 1968 and noted: "These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties." Lewis, 445 U.S. 55, 65 n.8 (1980) (citations omitted).
140. Miller, 307 U.S. at 175.
141. Id. at 177, 183.
142. Id. at 179 (emphasis added).
143. Id. at 178.
144. The defendant transported the weapon from Oklahoma to Arkansas, but those geographical areas were not states when the Second Amendment was adopted. See id. at 175, 180-82.
146. It is possible that Miller did not present any evidence that his short-barreled shotgun was part of standard militia equipment, in which case the only evidence the Court may have had regarding weapons suitable for militia service was the early militia statutes. Cf. Hardy, supra note 5, at 559 (noting that Miller did not file a brief, argue the case, obtain an attorney on appeal, or appear for trial on remand).
147. But see Kates, supra note 5, at 259 (suggesting a requirement that a weapon be "lineally descended from the kinds of weaponry known to the Founders" as one part of a test to determine what kinds of weapons are protected by the Second Amendment).
148. 131 F.2d 916, 921-23 (1st Cir. 1942), cert. denied sub nom., Velazquez v. United States, 319 U.S. 770 (1943), reh'g denied sub nom., Cases Velazquez v. United States, 324 U.S. 889 (1945).
149. Id. at 922.
151. The state militias now are subject to virtually complete federal control. See Perpich v. Department of Defense, 496 U.S. 334 (1990); see also infra notes 283-433 and accompanying text. As the Michigan Supreme Court stated in People v. Brown:
When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens of Michigan . . . is practically extinct and has been superseded by the National Guard and reserve organizations. If called into service, the arms are furnished by the state. In times of peace, the militia, as such, is unarmed and the historical test would render the constitutional provision lifeless.
Brown, 235 N.W. 245, 246 (Mich. 1932) (citations omitted).
152. "[T]he [S]econd [A]mendment is a very great amendment, and coming to know it through criminals and the endlessly disputed claims of gun clubs seems the equivalent of our coming to know the [F]irst [A]mendment only through pornography." Scarry, supra note 20, at 1267.
153. See infra, Part VI, B, notes 262-397 and accompanying text (applying the right to bear arms, as synthesized by the Founding, the Reconstruction, and the New Deal, to modern gun control laws).
154. 319 U.S. 463 (1943).
155. 15 U.S.C. § 902(f), repealed by Act of June 19, 1968, Pub. L. No. 90-351, §906, 82 Stat. 234 (1968).
156. Tot, 319 U.S. at 466.
157. Id. at 472.
158. 404 U.S. 336 (1971).
159. Pub. L. No. 90-351, 82 Stat. 236 (codified at 18 U.S.C. app. § 1202(a) (1982)), repealed by Pub. L. No. 99-308, § 104(b), 100 Stat. 459 (1986) ("Safe Streets Act").
161. 404 U.S. at 345-46.
162. Id. at 340, 345; see Robert L. Stern, The Commerce Clause Revisited: The Federalization of Intrastate Crime, 15 ARIZ. L. REV. 271, 281 (1973) (noting that "the legislative history looked one way and the logic and structure of the statute another, while the language was not clear").
163. United States v. Bass, 404 U.S. 336, 347 (1971) (citing Rewis v. United States, 401 U.S. 808, 812 (1971)).
164. Id. at 349.
165. Id. at 350.
166. Id. at 347.
167. 423 U.S. 212 (1976).
168. Id. at 214.
169. 18 U.S.C. § 922(h) (1994). This provision was part of the Gun Control Act of 1968, which amended Title IV of the Omnibus Crime Control and Safe Streets Act involved in Bass. See 423 U.S. at 213, 222-23.
170. 423 U.S. at 216-21.
171. See supra note 157 and accompanying text.
172. Barrett v. United States, 423 U.S. 212, 221-22 (1976).
173. United States v. Bass, 404 U.S. 336, 342-43 (1971).
174. Barrett, 423 U.S. at 222-23.
175. 431 U.S. 563 (1977).
176. Id. at 577.
177. Id. at 568.
178. Id. at 571 (quoting 18 U.S.C. app. § 1201 (1982), repealed by Pub. L. No. 99-308, § 104(b), 100 Stat. 459 (1986)).
179. Id. at 571-72 (citations omitted).
180. 115 S. Ct. 1624 (1995).
181. 18 U.S.C. § 922(q)(2)(A) (1994) (making it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone"); 18 U.S.C. § 921(a)(25) (1994) (defining "school zone").
182. Lopez, 115 S.Ct. at 1627-29.
183. Id. at 1629-30 (citations omitted).
184. Id. at 1630.
185. Id. (citations omitted).
186. Id. at 1631.
187. Id. 1632-33.
188. The Court stated:
Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.
Id. at 1634 (citations omitted).
189. The flexibility of the Reconstruction principles is discussed in, William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 WISC. L. REV. 767 (1985).
190. See Stern, supra note 162, at 271 n.1, 284. In his discussion of Perez v. United States, Robert Stern argued:
If the premise of these rulings is, as at least the lower court firearm decisions imply, that generally crimes which harm business injure interstate commerce, a direct federal prohibition of all such offenses would be at least as easy to justify as a prohibition against possession of firearms by convicted felons. For obviously to stamp out all such crimes would better protect interstate commerce than merely to prevent some of them, those committed by ex- felons with guns . . . "Indeed, since the total economic impact of almost any class of criminal activity substantially injures interstate business, most traditionally local crimes could be federalized under a broad construction of the commerce power."
Congress has not yet gone that far, and perhaps it never will.
Stern, supra note 162, at 283 (footnotes omitted). The Perez Court upheld the application of the loan shark statute to a purely intrastate extortionate credit transaction without requiring proof of any interstate nexus. Perez, 402 U.S. 146, 283 (1971). In a remarkable comment on the difference between lived experience and learned knowledge, Stern then speculated:
Perhaps the surprise merely reflects a recollection of what were regarded as great difficulties in the earlier litigation. And yet law students and younger lawyers now probably accept the modern commerce decisions as if they always have been 'the law,' as they accept Marbury v. Madison, McCulloch v. Maryland and Gibbons v. Ogden ¾ which also presented some difficulties in their times.
Stern, supra not 162, at 283 (footnote omitted). Stern correctly characterized the arena of the New Deal battle as commerce, not purely intrastate crime or individual rights other than liberty of contract.
191. Stern, supra note 162, at 283.
192. United States v. Bass, 404 U.S. 336, 350 (1971).
193. United States v. Lopez, 115 S.Ct. 1624, 1658 (1995) (Breyer, J., dissenting).
194. Cf. Hoke v. United States, 227 U.S. 308 (1913) (sustaining the constitutionality of the Mann Act against the challenge that it unduly interfered with the right of the people to move freely between the states); Stanley v. Georgia, 394 U.S. 557 (1969) (reversing a conviction for "knowing possession of obscene matter").
195. Lopez, 115 S.Ct. at 1633.
196. For examples of different approaches to 1-2-3 judicial synthesis, see Gideon v. Wainwright, 372 U.S. 335 (1963); McCleskey v. Kemp, 481 U.S. 279 (1987).
197. 402 U.S. 146 (1971) (upholding application of federal loan shark statute to purely intrastate activity without requiring that government demonstrate any link to interstate commerce).
198. 431 U.S. 563 (1977) (sustaining federal firearms conviction even though the only link to interstate commerce was the fact that the firearm had traveled interstate prior to and independently of its purchase). At least one New Dealer expressed surprise at the Court's willingness to uphold this expansion of federal criminal law. Stern, supra note 162, at 284; see also Robert L. Stern, The Commerce Clause Revisited ¾ The Federalization of Intrastate Crime, 15 ARIZ. L. REV. 271, 284 (1973).
199. See generally Williams, supra note 20; Hardy, supra note 5. The posse comitatus was: "The power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, etc." BLACK'S LAW DICTIONARY 1046 (5th ed. 1979). The federal, state, and local professional police forces have replaced the militia as a means of deterring crime and apprehending criminals. See, e.g., R. LANE, POLICING THE CITY: BOSTON 1822-1855 1 (1967) (noting that, as of 1822, "all the major eastern cities . . . had several kinds of officials serving various police functions, all of them haphazardly inherited from the British and colonial past. These agents were gradually drawn into better defined and more coherent organizations . . . . ").
200. Williams, supra note 20, at 556, 612-14.
201. The current version of the Posse Comitatus Act is at 18 U.S.C. s 1385 (1994). During the Reconstruction, the Republicans quickly learned that they could not trust the state militias to enforce the laws fairly. As Senator Trumbull stated in debates over the Freedmen's Bureau Bill, "[n]early all the dissatisfaction that now exists among the freedmen is caused by the abusive conduct of [the Mississippi] militia . . . . " CONG. GLOBE, 39th Cong., 1st Sess. 941 (1866) (quoted in HALBROOK, supra note 5, at 110). As a result, United States marshals were forced to use the federal armed forces as a posse comitatus in the South, instead of the militias. This use of the federal troops infuriated the southern Democrats. As Congressman Atkins put it: "For twelve years some of the Southern States have not known self-government or constitutional freedom. And the Army has been used as the main instrument to effect their overthrow and uphold this despotism." 5 CONG. REC. 2114 (1877). Senator Hill agreed, noting, "good citizens have begged to be called on to execute these laws in good faith. The marshal would not call on them. He preferred to have the soldiers; for some cause he insisted on nothing but the soldiers." 7 CONG. REC. 4248 (1878). Of course, the systematic violence against blacks committed by the defendants in United States v. Cruikshank, provides reason to doubt the "good faith" of Senator Hill's "good citizens." See Cruikshank, 92 U.S. 542 (1875). Foner also provides some useful historical perspective. He notes that: "Despite Southern complaints of bayonet rule, the Union Army rapidly demobilized after the war. Numbering 1 million on May 1, 1865, the roster of men under arms fell to 152,000 by the end of the year, and only 38,000, many of them stationed on the Indian frontier, by the fall of 1866." FONER, supra note 76, at 148 (footnote omitted).
Nevertheless, one of the first statutes the Democrats passed when they regained control of Congress after the Compromise of 1877 was the Posse Comitatus Act in 1878, which made it a crime "to employ any part of the Army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress . . . . " 7 CONG. REC. 4686 (1878). The statute was repealed and re-enacted as 18 U.S.C. § 1385 in 1956. James P. O'Shaughnessy, Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 AM. CRIM. L. REV. 703, 732 n.174 (1976). The current version provides: "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both." 18 U.S.C. § 1385 (1994). At least one author could not find any reported case involving a criminal prosecution for a violation of the Act. See Paul J. Rice, New Laws and Insights Encircle the Posse Comitatus Act, 104 MIL. L. REV. 109, 111 (1984).
It cannot be overemphasized that the Posse Comitatus Act was not an expression of the constitutional regime endorsed by the Reconstruction Republicans who opposed the original version, which contained an exception for authorization only "by an act of Congress," on the grounds that the President had constitutional authority to use the federal armed forces as a posse comitatus based on the Commander-in-Chief Clause. O'Shaughnessy, supra, at 710, 709 n.34 (citing 5 CONG. REC. 2160 (1877)); cf. U.S. CONST. art. III, § 2.
202. Williams, supra note 20, at 612-14; Scarry, supra note 20.
203. Correspondingly, gun-control advocates tend to give undue emphasis to this function of the militia. See, e.g., Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U. DAYTON L. REV. 1, 34-40 (1989). Mr. Henigan was the Director of the Legal Action Project at the Center to Prevent Handgun Violence.
204. Such attitudes were exhibited by the relatively enlightened Justice Harlan, who dissented in Plessy but wrote: "There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race." Plessy v. Ferguson, 163 U.S. 537 (1896) (Harlan, J., dissenting).
205. 543 F.Supp. 198 (S.D. Tex. 1982).
206. The Klan presumably relied on the Fourteenth Amendment. Id. at 204 (quoting deposition of Robert Sisente, founder of the TER).
208. The locations included: Camp Puller outside Anahuac, Texas; Camp Winnie near Winnie, Texas; Camp Bravo, near Liberty, Texas; and Alpha base, the location of which was not revealed. Id.
209. Id. at 203-04.
210. Id. at 205-06. The patrol watched U.S.-Mexico borders.
211. Id. at 204.
212. Id. at 205. By "aliens" they were referring to Mexican citizens.
213. Id. at 206-07.
214. Id. at 207.
218. Id. at 210.
219. Id. (citations omitted).
220. 307 U.S. 174, 182 (1939); see also supra notes 138-53 and accompanying text.
221. The Michigan Militia recently was brought to national attention following the Oklahoma bombing. John F. Harris, Clinton Lashes Out At Terrorists, Seeks Expanded Powers, WASH. POST, April 24, 1995, at A01. Radical groups, in general, gained attention following the bombing but this paramilitary Militia came under the heightened scrutiny of federal investigation just shortly after the bombing when principal suspect Timothy McVeigh was linked to two brothers who were members of the militia. Id.; see also Malcolm Gladwell, At Root of Modern Militias: An American Legacy of Rebellion, WASH. POST, May 9, 1995, at A01.
In response to the Oklahoma tragedy, President Clinton publicly conveyed his perception of the distinctions separating constitutionally protected rights from conduct that facilitates domestic terrorism. Harris, supra, at A01. Though recognizing constitutionally protected rights such as the right to bear arms, to believe certain ideas, and to express those beliefs, President Clinton boldly announced that "[t]hey [violent paramilitary groups] do not have a right to kill innocent Americans[,]" thereby demonstrating the threat that ensues from irrational expansion of constitutional rights. Id.
222. See generally Williams, supra note 20, at 590-94; Wendy Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 YALE L.J. 661 (1989).
223. Although this Article focuses on domestic use of the militia, the same analysis can be applied to support Professor Ely's argument for strengthening the role of Congress in controlling the President's ability to involve members of the armed forces in hostilities abroad. See ELY, WAR, supra note 29. It would also support Elaine Scarry's argument that the President should not be permitted to unilaterally decide to use nuclear weapons against another country. See Scarry, supra note 20. A decision of Congress, however, should be sufficient.
224. The Constitution states:
The Congress shall have Power . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . .
U.S. CONST. art. I, § 8, cl. 15 & 16 (emphasis added). When read together, these clauses and the Second Amendment make it clear that Congress can arm, but not disarm, the state militias.
225. U.S. CONST. art II, § 2.
226. This was, in part, because the President's role as Commander-in- Chief, and in government, was much more limited than it is today. See ELY, WAR, supra note 29, at 5 n.22; see also Ackerman, Transformations, supra note 16.
227. See generally ELY, WAR, supra note 29. For example, 10 U.S.C. s 3501(a) (1988), repealed by Pub. L. No. 103-337, div. A, Title XVI, s 1662(f)(2), 108 Stat. 2994 (1994)) provides:
Whenever the President calls the Army National Guard of a State or Territory, Puerto Rico, or the District of Columbia into Federal service, he may specify in the call the period of the service. Members and units called shall serve inside or outside the territory of the United States during the term specified, unless sooner relieved by the President. However, no member of the Army National Guard may be kept in Federal service beyond the term of his commission or enlistment.
Id. (emphasis added). This statute must be read in light of Article I, section 8 of the Constitution which gives Congress the power to call forth the Militia.
228. See ACKERMAN, TRANSFFORMATIONS, supra note 16, ch. 10, § G (discussing conflict between President and Congress over control of the federal armed forces in the South); Id. at ch. 14 (discussing defeat of court-packing, which, if successful, would have legitimated the current practice of total Presidential control of the armed forces).
229. 343 U.S. 579 (1952).
230. Id. at 582.
231. Id. at 586.
232. Id. A similar claim was made by Republicans in opposition to the Posse Comitatus Act of 1878, but at that point the Reconstruction was over and Hayes was President, so this claim would not have been ratified by "We the People."
233. Id. at 644 (Jackson, J., concurring).
234. Gilligan v. Morgan, 413 U.S. 1, 3 (1973).
235. Id. at 5-6.
236. Id. at 6.
237. 496 U.S. 334 (1990).
238. Id. at 354-55.
239. Id. at 340-47; see also Ehrman & Henigan, supra note 203, at 34- 40. As of 1986, "the Army National Guard provides 46 percent of the combat units and 28 percent of the support forces of the Total Army." Perpich, 496 U.S. at 346 (citing testimony of James H. Webb, Assistant Secretary of Defense for Reserve Affairs, before a subcommittee of the Senate Armed Services Committee on July 15, 1986).
240. 496 U.S. at 340-42.
241. Id. at 342-43 (citing Act of Jan. 21, 1903, ch. 196, 32 Stat. 775); see also Peter A. Fish, The Constitution and the Training of National Guardsmen: Can State Governors Prevent Uncle Sam from Sending the Guard to Central America?, 4 J.L. & POLITICS 597, 605-06 (1988) (discussing the Dick Act).
242. Perpich v. Department of Defense, 496 U.S. 334, 342-43 (1990). As the Court explained:
When the Army made plans to invoke [its] authority by using National Guard units south of the Mexican border, Attorney General Wickersham expressed the opinion that the Militia Clauses precluded such use outside the Nation's borders. In response to that opinion and to the widening conflict in Europe, in 1916 Congress decided to "federalize" the National Guard . . . .
Since 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States . . . . Until 1952 the statutory authority to order National Guard units to active duty was limited to periods of national emergency. In that year, Congress broadly authorized orders to "active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without gubernatorial consent . . . .Apparently gubernatorial consents to training missions were routinely obtained until 1985, when the Governor of California refused to consent to a training mission for 450 members of the California National Guard in Honduras, and the Governor of Maine shortly thereafter refused to consent to a similar mission. Those incidents led to the enactment of the Montgomery Amendment . . . .
Id. at 340-46 (footnotes omitted). The "Montgomery Amendment" was enacted as section 522 of the National Defense Authorization Act for Fiscal Year 1987, Pub. L. 99-661, sec.522, § 12301, 100 Stat. 3871 (codified at 10 U.S.C. § 12301(f) (1994)). Perpich, 496 U.S. at 337 n.2.
243. "The consent of a Governor described in subsections (b) and (d) may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty." § 522, 100 Stat. at 3871.
244. Perpich, 496 U.S. at 351. The Court concluded:
In light of the Constitution's more general plan for providing for the common defense, the powers allowed to the States by existing statutes are significant. As has already been mentioned, several constitutional provisions commit matters of foreign policy and military affairs to the exclusive control of the National Government. This Court in Tarble's Case, [80 U.S. (13 Wall.) 397 (1872)], had occasion to observe that the constitutional allocation of powers in this realm gave rise to a presumption that federal control over the Armed Forces was exclusive. Were it not for the Militia Clauses, it might be possible to argue on like grounds that the constitutional allocation of powers precluded the formation of organized state militia. The Militia Clauses, however, subordinate any such structural inferences to an express permission while also subjecting state militia to express federal limitations. Id. at 353-54 (footnotes omitted).
245. But see INS v. Chadha, 462 U.S. 919 (1983) (holding one-house veto provision to be an unconstitutional delegation of power).
246. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952).
247. Fish, supra note 241, at 635 (1988) ("[W]hile it does appear that Congress has accomplished a restructuring of national military organization outside of the constitutional amendment process, the result retains the framers' original concept of decentralization of military power in the federal system. Furthermore, the present system meets the nation's current national defense requirements.").
248. Even the Founders were aware of problems with the militia. "[George] Washington complained of the militia that they 'come in you cannot tell how, go you cannot tell when, and act you cannot tell where, consume your provisions, exhaust your stores, and leave you at last at a critical moment."' Hardy, supra note 5, at 592 n.164 (citing J. PALMER, WASHINGTON, LINCOLN, WILSON: THREE WAR STATESMEN 26 (1930)).
249. Williams, supra note 20, at 596.
250. Id. at 598.
251. Id. at 599-602.
252. Id. at 602-07.
253. Id. at 607-14.
254. Scarry, supra note 20, at 1267.
255. Id. at 1300-01. She concludes:
Th[e] requirement for materiality ¾ the assent of person after person after person iterated thousands of times ¾ makes it hard to make constitutions and hard to declare wars with speed and efficiency. But it is also precisely this encumbering materiality that gives both constitution-making and constitutionally sanctioned war-making their capacity to secure our liberty.
Id. at 1315.
256. In this sense Scarry is unlike John Hart Ely, who relies heavily upon the New Deal constitutional regime. See ELY, WAR, supra note 29.
257. ELY, DEMOCRACY AND DISTRUST, supra note 6, at 101.
258. Ely reads the Second Amendment narrowly:
We have noted a few provisions that do not comfortably conform to this pattern. But they're an odd assortment, the understandable products of particular historical circumstances ¾ guns, religion, contract, and so on ¾ and in any event they are few and far between. To represent them as a dominant theme of our constitutional document one would have to concentrate quite single-mindedly on hopping from stone to stone and averting one's eyes from the mainstream.
Id. at 101.
259. Id. at 105.
260. For example, in De Jonge v. Oregon the Court stated:
The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.
De Jonge, 299 U.S. 353, 364-65 (1936); cf. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943). The Barnette Court stated:
As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be . . . Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.
261. Ely himself implicitly recognizes this in his most recent work, where he argues that the Court should ensure that Congress retains control over the use of the armed forces in hostilities abroad. ELY,WAR, supra note 29, at 47-67.
262. See Part IV, supra, notes 54-125 and accompanying text.
263. See Part III, supra, notes 32-53 and accompanying text; see generally Yassky, Eras of the First Amendment, supra note 48, at 1703-16 (stating that "the framers of the First Amendment sought to guarantee liberty by maintaining the independence of the states").
264. See Part IV, supra, notes 54-125 and accompanying text.
265. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
266. 198 U.S. 45 (1905).
267. Cf. Wickard v. Filburn, 317 U.S. 111, 125 (1942) (stating that "[e] ven if [the farm production of wheat] be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce").
268. United States v. Carolene Prod. Co., 304 U.S. 144, 152 (1938).
269. See, e.g., Cases v. United States, 131 F.2d 916, 922-23 (1st Cir. 1942), cert. denied, Velazquez v. United States, 319 U.S. 770 (1943) (maintaining that a state can regulate the keeping and bearing of arms, but it cannot prohibit the use or possession of a weapon which is reasonably related to the preservation of a well regulated militia).
270. See, e.g., United States v. Ruisi, 460 F.2d 153, 156-57 (2d Cir. 1972) (holding that the federal statute "proscribe[d] unlicensed intrastate dealing in firearms" and that proof of scienter is not required where the "purpose of the statute is to regulate objects or activities which in and of themselves are dangerous or harmful"), cert. denied, 409 U.S. 914 (1972); United States v. Redus, 469 F.2d 185 (9th Cir. 1972) (holding that no interstate commerce nexus is required for conviction of "importing, manufacturing or dealing in firearms or ammunition without a license"). Many state courts have reached the same result when interpreting a right to bear arms provision in their own constitutions. See, e.g., State v. Bailey, 551 A.2d 1206, 1218 (Conn. 1988) (stating that "it is beyond serious dispute that the legislature has the authority to place reasonable restrictions on a citizen's right to bear arms"); Matthews v. State, 148 N.E.2d 334, 338 (Ind. 1958) (upholding state firearms license requirement and noting that "[t]he Legislature has the power, in the interest of public safety and welfare, to provide reasonable regulations for the use of firearms which may be readily concealed, such as pistols"); Lewis v. State, 484 N.E.2d 77 (Ind. App. 1985) (reiterating that state regulation of handguns is constitutional). The Indiana Constitution provides that: "The people shall have a right to bear arms, for the defense of themselves and the State." IND. CONST. art. I, § 32. In Jackson v. State, 68 So. 2d 850 (Ala. Ct. App. 1953), cert. denied, 68 So. 2d 853 (Ala. 1953), the Alabama Court of Appeals upheld the defendant's conviction for owning or possessing a pistol after having been convicted of a crime of violence. The court held that:
Unquestionably the legislature had full authority to deal with the subject here involved. It is uniformly recognized that the constitutional guarantee of the right of a citizen to bear arms, in defense of himself and the State, Art. 1, § 26, Const. 1901, is subject to reasonable regulation by the State under its police power.
Jackson, 68 So. 2d at 852 (citations omitted); see also Carfield v. State, 649 P.2d 865 (Wyo. 1982) (statute prohibiting a felon from carrying a weapon upheld).
271. 13 F.3d 291 (9th Cir. 1993), rev'd, 115 S.Ct. 1819 (1995). The Supreme Court, however, recently rejected the Edwards interpretation and held the Act unconstitutional. United States v. Lopez, 115 S.Ct. 1624 (1995). See supra notes 180-95 and accompanying text for further discussion of Lopez. Edwards is examined only as an example of one approach to 1-2-3 synthesis.
272. The Act provides that it shall be an offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(2)(A) (1994).
273. 928 F.2d 858 (9th Cir. 1991).
274. 13 F.3d at 293 (citations omitted).
275. Id. (citation omitted).
276. As one proponent of the National Firearms Act of 1934 explained:
The majority of the committee were of the opinion . . . that the ordinary, law- abiding citizen who feels that a pistol or a revolver is essential in his home for the protection of himself and his family should not be classed with criminals, racketeers, and gangsters; should not be compelled to register his firearms and have his fingerprints taken and be placed in the same class with gangsters, racketeers, and those who are known as criminals.
78 CONG. REC. 11400 (June 13, 1934) (statement of Rep. Doughton).
277. 304 U.S. 144 (1938).
278. Id. at 152 n.4. This reading of the Bill of Rights was continued in Betts v. Brady, in which the Court upheld a state court's refusal to appoint counsel to a defendant charged with robbery, noting that due process was "a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights." Betts, 316 U.S. 455, 462 (1942). Betts was overruled in Gideon v. Wainwright, 372 U.S. 335 (1963).
279. "Faced with the task of reconstituting the Founding commitment to liberty in response to these challenges, the Court invigorated the Bill of Rights' non-economic guarantees of personal freedom ¾ most energetically, the speech and press clauses of the First Amendment." Yassky, Eras of the First Amendment, supra note 48, at 1729-39.
280. 319 U.S. 624 (1943).
281. Id. at 639 (1943) (emphasis added).
282. Presumably, courts would ascertain the precise meaning of "grave and immediate danger" on a case-by-case basis.
283. §§ 2(a), 3(a), 48 Stat. 1236 (imposing substantial tax on the transfer of such firearms).
284. Roosevelt, Commonwealth Club Speech, supra note 3, at 52 (emphasis added).
285. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . . " U.S. CONST. amend. VI; see Gideon v. Wainwright, 372 U.S. 335 (1963) (describing the evolution of the Sixth Amendment right to appointed counsel in serious criminal cases); see also U.S. CONST. art. III, § 2 ("The Trial of all Crimes . . . shall be by Jury . . . . ").
286. 170 U.S. 343 (1898).
287. Id. at 349.
288. 176 U.S. 581, 586 (1900).
289. 391 U.S. 145 (1968).
290. The Fourteenth Amendment provides that no "State [shall] deprive any person of life, liberty, or property, without due process of law . . . . " U.S. Const. amend. XIV, § 1.
291. Duncan, 391 U.S. at 149 (footnote omitted).
292. Id. at 158, 159 n.30 (determining that applying the Sixth Amendment to the states would not drastically affect state criminal procedures because the Court's previous Sixth Amendment holdings were subject to reconsideration and most states already had jury trial provisions that equaled or exceeded the Sixth Amendment protections); cf. id. at 181 (Harlan, J., dissenting) (expressly rejecting "jot-for-jot" incorporation).
293. 399 U.S. 78 (1970).
294. Id. at 86.
295. Id. at 117, 118 (Harlan, J., dissenting).
296. 406 U.S. 404 (1972) (plurality).
297. Id. at 406 (plurality).
298. Johnson v. Louisiana, 406 U.S. 356, 375 (1975) (Powell, J., concurring) (companion case to Apodaca).
299. 441 U.S. 130 (1979). Burch involved a state criminal trial for the non-petty offense of showing two obscene motion pictures which resulted in a conviction by a non-unanimous six person jury. Id. at 132.
300. Id. at 134.
301. Gideon v. Wainwright, 372 U.S. 335, 347 (1963).
302. Justice Brandeis articulated the proposition as follows:
There must be power in the states and the nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs . . . . It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
New State Ice Co. v. Liebmann, 285 U.S. 262, 310 (1932) (Brandeis, J., dissenting).
303. See, e.g., Arizona v. Evans, 115 S.Ct. 1185, 1197 (1994) (Ginsburg, J., dissenting) (finding that states should serve as laboratories to determine if application of the exclusionary rule to judicial employee's computer error would deter them from making future errors).
304. 287 U.S. 45 (1932).
305. See DAN TL. CARTER, SCOTTSBORO: A TRAGEDY OF THE AMERICAN SOUTH (1979) for a description of the famous case. See McCleskey v. Kemp, 481 U.S. 279 (1987) (depicting the modern Court's refusal to take action against pervasive racial discrimination in the administration of the death penalty); see also Gideon v. Wainwright, 372 U.S. 335 (1962).
306. See Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995) (subjecting all federal racial classifications to strict scrutiny).
307. See, e.g., La Belle Iron Works v. United States, 256 U.S. 368, 392 (1921) (dismissing claim that the World War I excess profits tax constituted "baseless and arbitrary discriminations" in violation of the Fifth Amendment). "Reference is made to cases decided under the equal protection clause of the Fourteenth Amendment . . . but clearly they are not on point. The Fifth Amendment has no [E]qual [P]rotection [C]lause . . . . " Id. (citations omitted); see generally Kenneth L. Karst, The Fifth Amendment's Guarantee of Equal Protection, 55 N.C. L. Rev. 540, 543-44, 544 n.13 (1977).
308. 347 U.S. 483 (1954).
309. 347 U.S. 497 (1954).
310. Id. at 499-500 ("In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.").
311. SUNDQUIST, supra note 30, at 51, 64; cf. Karst, supra note 307, at 547-52.
312. Under the rational basis test in cases involving equal protection, the Court will uphold any classification by the government that is rationally related to a legitimate government interest. See, e.g., Railway Express Agency v. New York, 336 U.S. 106, 110 (1949) (upholding prohibition of advertising vehicles because it "has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection"); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980) ("Where, as here, there are plausible reasons for Congress' action, our inquiry is at an end."). But see Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 21 (1972) (arguing that the Court should be "less willing to supply justifying rationales by exercising its imagination," thereby providing "new bite for the old equal protection").
313. Courts will apply the strict scrutiny test when there is a suspect class, classification results in discriminatory impact, or if the statute is race specific. See, e.g., Palmore v. Sidoti, 466 U.S. 429 (1984) (holding that a court order awarding child custody to father because mother had married a black man was unconstitutional); Loving v. Virginia, 388 U.S. 1 (1967) (holding anti-miscegenation laws unconstitutional). The government can only overcome strict scrutiny analysis if it demonstrates that the statute is narrowly tailored to achieve a compelling government purpose. See Korematsu v. United States, 323 U.S. 214 (1944) (upholding a program excluding all persons of Japanese ancestry from designated West Coast areas despite application of strict scrutiny).
314. See Craig v. Boren, 429 U.S. 190, 197 (1976) (holding that State gender-based classifications will be upheld if they "serve important governmental objectives and . . . [are] substantially related to achievement of those objectives"). See GERALD GUNTHER, CONSTITUTIONAL LAW 601-08 (12th ed. 1991) for an overview of the equal protection doctrine. The immediate scrutiny test applies to gender classifications, as well as other classifications, and government can overcome the test by showing that the government action is substantially related to an important government purpose. See TRIBE, supra note 6, at s 16-33.
315. See generally Karst, supra note 302, at 556.
316. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (5-4 decision) (holding that a layoff provision of a collective bargaining agreement, which had a greater impact on non-minority teachers, violated the Equal Protection Clause); Regents of the University of California v. Bakke, 438 U.S. 265, 269 (1978) (5-4 decision) (rejecting a state affirmative action program but allowing the University to take race into account in admission decisions).
317. 448 U.S. 448 (1980).
318. Id. at 453-54.
319. Id. at 473-80, 490-92.
320. 488 U.S. 469 (1989).
321. Id. at 507-08.
323. 497 U.S. 547, (1990), reh'g denied, 497 U.S. 1050 (1990).
324. Id. at 563-64.
325. 115 S.Ct. 2097 (1995) (5-4 decision).
326. Id. at 2113.
327. Cf. David Yassky, A Two-Tiered Theory of Consolidation and Separation of Powers, 99 Yale L.J. 431 (1989) [hereinafter Yassky, A Two-Tiered Theory] ("Not only did the New Deal expand the permissible areas of governmental activity, it also transformed the structure of the Federal Government. President Roosevelt's innovations centralized within large bureaucracies power that previously had been dispersed among the three governmental branches.").
328. Compare Lovell v. Griffin, 303 U.S. 444 (1938) (unanimously holding unconstitutional a municipal ordinance that prohibited distribution of handbills without a permit) with Davis v. Massachusetts, 167 U.S. 43 (1897) (holding that Boston could prohibit any public address on public grounds without a permit from the mayor); compare De Jonge v. Oregon, 299 U.S. 353 (1937) (reversing state conviction under anti-communist censorship statutes) with Gitlow v. New York, 268 U.S. 652 (1925) (upholding conviction of Left Wing Socialist Party member for criminal anarchy) and Whitney v. California, 274 U.S. 357 (1927) (upholding conviction of Communist Labor Party member for criminal syndicalism).
329. David Yassky has done an excellent job of explaining the rise of the freedom of speech and the press in the New Deal era. Yassky, Eras of the First Amendment, supra note 48, at 1729-30. Yassky discusses many cases in which the Supreme Court used the First and Fourteenth Amendments to strike down legislation by state or local governmental entities. Id. at 1731-32. After a series of now-infamous "communist" decisions, see, e.g., Communist Party of the United States of America v. Subversive Activities Control Bd., 367 U.S. 1 (1961); Dennis v. United States, 341 U.S. 494 (1951); American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382 (1950), in which the Court exhibited remarkable hostility to plaintiffs challenging federal restrictions on free speech and association, the Supreme Court eventually moved toward a single standard for both federal and state legislation. The prevailing myth that the First Amendment guaranteed broad individual rights to free speech at the time of the Founding, therefore, this implicit struggle over reverse incorporation has been overlooked by many First Amendment scholars. Even David Yassky, who succeeds in discrediting the myth of rediscovery, does not develop the reverse incorporation angle. See Yassky, Eras of the First Amendment, supra note 48, at 1699. Professor Amar, on the other hand, is keenly aware of the different reading the Reconstruction Republicans gave to the Bill of Rights. See Amar, supra note 9, at 1272-1284, for a discussion of "refined incorporation" of the speech, press, petition and assembly clauses.
330. 381 U.S. 301 (1965) (striking down, as a violation of the First Amendment, s 305(a) of the Postal Service and Federal Employee Salary Act of 1962, which required the detention of all mail determined to be "communist political propaganda," return of which was dependent upon the addressee's response on a reply card). The difference between the federal and state communist cases can be explained in at least two ways. First, one could argue that the Supreme Court had recovered from the Red Scare of 1919-1920 by the time De Jonge and Herndon were decided in 1937. In Dennis and Communist Party, however, the Court was still under the virulent influence of McCarthyism from 1950-1954, so much so that it could not apply the expansive reading it had given after the New Deal to the First Amendment in cases involving state statutes. Alternatively, these cases could be reconciled using the Reconstruction, which commanded that "No State shall . . . abridge the privileges or immunities of citizens of the United States . . . " and the New Deal, which gave the federal government extensive power to regulate in all areas. No single explanation is correct. Instead, both explanations have merit, and these decisions indicate that if the Supreme Court were to apply the Second Amendment right to bear arms to limit state gun controls, it would apply a weaker version to federal gun controls, at least initially. See also Roth v. United States, 354 U.S. 476 (1957) (upholding federal and state obscenity laws). However, FCC v. Pacifica Foundation, 438 U.S. 726 (1978), in which the Court held the FCC could regulate radio broadcasts that were indecent but not obscene, may be evidence that the Court still was applying a weaker First Amendment test to the federal government as late as 1978. See Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989), for a modern decision striking down, on First Amendment grounds, a federal ban on indecent sexual expression in pay-per-message telephone services.
331. U.S. CONST. amend. XIV, § 1.
332. See Part IV, supra notes 54-125 and accompanying text.
333. U.S. CONST. amend. I.
334. Justices Kennedy and O'Connor presumably would not favor strict limits on state firearms laws. See Lopez, 115 S.Ct. at 1641 (Kennedy, J., concurring) (stating Gun-Free School Zones Act "forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise"). State school firearms laws probably would survive strict scrutiny, however, because they are necessary to serve a compelling state interest ¾ protecting our schoolchildren from deadly violence.
335. 285 U.S. 262 (1932).
336. Id. at 280. The Court should have added "unless 'We the People' said so clearly and explicitly," as they did regarding liberty of contract during the New Deal.
337. The terms "strict" and "intermediate" are used loosely here. By "strict," the reference is to something less than "strict in theory and fatal in fact." TRIBE, supra note 6, at 1451 (citing Gerald Gunther, The Supreme Court, 1971 Term ¾ Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972)). "Intermediate," however, indicates something more than rational basis review. Id. at 1609-10.
338. Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, Title I, § 104(b), 107 Stat. 1543 (1993) (partially codified as amended in scattered sections of 18 U.S.C.).
339. See, e.g., Getting Serious About Guns, N.Y. TIMES, Apr. 29, 1994, at A26 (discussing comprehensive character of the Schumer-Bradley Bill).
340. Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections of 5, 18, and 20 U.S.C.).
341. 18 U.S.C. § 922(v)(1) (1994). Technically, an assault rifle is a military rifle that is capable of firing both fully automatically and semiautomatically. GARY KLECK: GUNS AND VIOLENCE IN AMERICA at 70 (1991) (citations omitted). The term has also been used to describe weapons that have a military appearance but are only capable of firing semiautomatically. Id. The federal statute defines the term "semiautomatic assault weapon" as follows:
(A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as ¾
(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);
(ii) Action Arms Israeli Military Industries UZI and Galil;
(iii) Beretta Ar70 (SC-70);
(iv) Colt AR-15;
(v) Fabrique National /FAL, /LAR, and C;
(vi) SWD M-10, M-11, M-11/9, and M-12;
(vii) Steyr AUG;
(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12;
(B)a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of ¾
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a bayonet mount;
(iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and
(v) a grenade launcher;
(C)a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of ¾
(i) an ammunition magazine that attaches to the pistol outside of the pistol grip;
(ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer;
(iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;
(iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and
(v)a semiautomatic version of an automatic firearm; and
(D)a semiautomatic shotgun that has at least 2 of ¾
(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action of the weapon;
(iii) a fixed magazine capacity in excess of 5 rounds; and
(iv) an ability to accept a detachable magazine.
18 U.S.C. § 921(a)(30) (1994). This subsection will be repealed effective September 13, 2004. See Pub. L. No. 103-322, Title XI, § 110105(2), 108 Stat. 2000 (1994).
342. 18 U.S.C. § 922(v)(1) (1994).
343. 18 U.S.C. § 922(v)(2) (1994).
344. See 18 U.S.C. § 924(a)(1) (1994).
345. See, e.g., Guy Gugliotta & Pierre Thomas, Bearing Arms vs. Despairing of Arms: The Battle for Control, WASH. POST, Feb. 16, 1992, at B1; see Kevin Merida, Gun Measure Draws Fast Friends, Foes AS Senate Panel Hears Testimony, WASH. POST, Mar. 24, 1994, at A6. Political attention has shifted from Saturday Night Specials to assault rifles.
346. T.D. ATF-270, 1988-1 ALCOHOL TOBACCO & FIEREARMS Q. BULL. 41, 27 C.F.R. § 178.112(b). One of the factors the ATF considers is the barrel length of the handgun. Id.
347. As Senators Kennedy and Metzenbaum noted:
The ready availability of lethal, concealable handguns undermines the fundamental effort to protect citizens from violent crime . . . . A major study conducted by Cox News Service in 1981 found that two out of every three handguns used in murders, rapes, robberies, and muggings have a barrel length of three inches or less. These snub-nosed handguns are the overwhelming weapon of choice by street criminals and assassins.
Discussion of the Federal Firearms Owners Protection Act by Senators Kennedy and Metzenbaum, 1986-3 ALCOHOL TOBACCO & FIREARMS Q. BULL. 77 (S.R. 98-583, to accompany S. 49), August 8, 1984; see also Alix M. Freedman, Fire Power Behind the Cheap Guns Flooding the Cities is a California Family, WALL ST. J., Feb. 28, 1992. Others contend "there is no strong reason to believe that criminals are any more likely to use [Saturday Night Specials] than noncriminal members of the general public." KLECK, supra note 341, at 83-91.
348. 78 CONG. REC. 12543 (June 18, 1934).
349. See Jim Stewart & Andrew Alexander, Assault Weapons Muscling in on the Front Lines of Crime, ATLANTA J. & CONST., May 21, 1989, at A1; Daniel Abrams, Ending the Other Arms Race: An Argument for a Ban on Assault Weapons, 10 YALE L. & POL'Y REV. 488, 494 (1992). Kleck criticizes the Atlanta Journal- Constitution as based on a sample biased towards drug trafficking or other organized crime and using too broad a definition of "assault weapons." KLECK, supra note 341, at 74-76.
350. Larry Rohter, Pistol Packs Glamour, Power and Reputation as a Menace, N. Y. TIMES, Mar. 10, 1992, at A18; cf. In re 101 California Street, 63 U.S.L.W. 2652-53 (Cal. Super. Ct. Apr. 10, 1995) (No. 959316) (holding that the victims of a massacre at a San Francisco law firm had stated a claim for negligence and strict liability against the manufacturer of TEC-9).
351. 235 N.W. 245 (Mich. 1932). The Michigan Constitution, Article I, Section 6, provides that: "Every person has a right to keep and bear arms for the defense of himself and the state." MICH. CONST., Art. I, § 6.
352. Brown, 235 N.W. at 246; see also People v. Smelter, 437 N.W.2d 341 (Mich. Ct. App. 1989) (applying Brown's distinction between weapons used for self-defense and weapons commonly used by criminals in order to uphold the defendant's conviction for possession of a stun gun).
353. See Sayoko Blodgett-Ford & J. Drake Turrentine, Gun Controls and the Connecticut Constitution, 66 CONN. BAR. J. 425 (1992), for a discussion of whether a proposed ban on assault weapons in Connecticut would violate the right to bear arms contained in the Connecticut Constitution.
354. A 1989 report prepared by the ATF provides guidelines for distinguishing between military rifles and traditional sporting rifles. One factor is the "military configuration", which includes ability to accept a detachable magazine, folding/telescoping stock, pistol grip, ability to accept a bayonet, flash suppressor, bipod, grenade launcher, and night sight. See Report and Recommendation of the ATF Working Group on the Importability of Certain Semiautomatic Rifles, Bureau of Alcohol, Tobacco and Firearms, July 7, 1989, at 6-8.
355. Arthur L, Kellermann & Donald T. Reay, Protection or Peril, An Analysis of Firearm-Related Deaths in the Home, 314 N. ENG. J. MED. 1557, 1559 (June 12, 1986) (citations omitted).
356. See, e.g., CONN. GEN.L STAT. ANN. § 29-35(a) (1992) (imposing a penalty of one to five years imprisonment for "carry[ing] any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same . . . . "); Ind. Code Ann. § 35-47-2-1 (West 1993) (requiring a license to "carry a handgun in any vehicle or on or about his person, except in his dwelling, or on his property or fixed place of business"); MICH. COMP. LAWS ANN. §§ 28.422, 750.232a(1) (West 1993) (imposing fine of up to $100 and/or imprisonment for not more than 90 days if caught without license to purchase, carry, or transport a pistol).
357. For example:
No person shall engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, until he has filed an application with and received a license to do so from the Secretary. The application shall be in such form and contain only that information necessary to determine eligibility for licensing as the Secretary shall by regulation prescribe and shall include a photograph and fingerprints of the applicant. Each applicant shall pay a fee for obtaining such a license, a separate fee being required for each place in which the applicant is to do business . . .
18 U.S.C. § 923(a) (1994).
358. Clinton Says He May Back National Gun Licensing Plan, NEW HAVEN REGISTER, Dec. 5, 1993, at B10; cf. B. Drummond Ayres Jr., U.S. to Seek Rise in Fee for Gun Dealers, N.Y. TIMES, Jan. 4, 1994, at A8.
359. B. Drummond Ayres Jr., Administration Proposes Plan to Make It More Difficult for Criminals to Buy Guns, N.Y. TIMES, Jan. 5, 1994, at A10. The proposal also would make it a felony for dealers intentionally to fail to keep records or to falsify them and would computerize records of firearm sales. Id.; see S. 1916, 103d Cong., 1st Sess. (introduced Mar. 9, 1994 by Sen. Simon).
360. Steven A. Holmes, Treasury Imposes New Regulations on Some Shotguns, N.Y. TIMES, Mar. 1, 1994, at A1 (noting that "[a]nyone caught in possession of an unregistered rapid-fire shotgun 30 days after being notified of the changes will be subject to maximum penalties of a 10-year jail sentence and a $250,000 fine").
361. 18 U.S.C. § 922(a)(1) (1994) provides, in relevant part, that it shall be unlawful for any person:
(A) except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce; or (B) except a licensed importer or licensed manufacturer, to engage in the business of importing or manufacturing ammunition, or in the course of such business, to ship, transport, or receive any ammunition in interstate or foreign commerce . . . .
Id. The statute contains several exceptions, including a provision that allows a person "who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence" to transport "the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State." 18 U.S. C. § 922(a)(3)(A) (1994).
362. 78 CONG. REC. 11400 (June 13, 1934) (Rep. Doughton).
363. Cf. State v. Bailey, 551 A.2d 1206 (Conn. 1988) (upholding five- year sentence under CONN. GEN. STAT. § 29-37(b) (1958) for carrying a pistol without a permit).
364. 398 N.E.2d 1339 (Ind. App. 1980).
365. The Indiana Constitution provides: "The people shall have a right to bear arms, for the defense of themselves and the State." IND. CONST. art. I, § 32. This provision is analogous to the individual right to bear arms that the Reconstruction Republicans saw in the Second Amendment as a privilege or immunity of citizenship. See supra notes 54-125 and accompanying text.
366. Schubert, 398 N.E.2d at 1341.
367. The court declared:
Such an approach contravenes the essential nature of the constitutional guarantee. It would supplant a right with a mere administrative privilege which might be withheld simply on the basis that such matters as the use of firearms are better left to the organized military and police forces even where defense of the individual citizen is involved.
Id. at 1341. Because there was conflicting evidence on the applicant's suitability to be licensed (several former employers felt that he had "mental problems"), the court remanded for a new hearing. In a dissent, Judge Staton argued that the proposition quoted above was expressly rejected in Matthews v. State. Id. at 1343-44 (citing Matthews, 148 N.E.2d 334 (1958)). Judge Staton was partly correct because, in Matthews, the court applied only a rational basis test, while in Schubert, the court strengthened that test.
368. See, e.g., 18 U.S.C. § 922(g)(1) (1994) (making it unlawful for any person "who has been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport any firearm or ammunition in interstate or foreign commerce"); 18 U.S.C. app. § 924 (Supp. II 1984), repealed by Pub. L. No. 99-308, § 104(b), 100 Stat. 459 (1986) (prohibiting felons from possessing, transporting, receiving, or owning any firearm or ammunition that has been shipped in interstate commerce).
369. For example, 18 U.S.C. § 922(g) (1994) provides, in relevant part:
It shall be unlawful for any person¾ (1)who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
370. See supra notes 167-72, 178, 370 and accompanying text. In Barrett v. United States, 423 U.S. 212 (1976), the Court upheld a conviction under 18 U.S.C. s 922(h) (1994), which makes it unlawful for a convicted felon, inter alia, "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce," and in Scarborough v. United States, 431 U.S. 563 (1977), the Court upheld a conviction under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. app. § 1202 (1982), repealed by Pub. L. No. 99-308, s 104(b), 100 Stat. 459 (1986)), which prohibited a convicted felon from possessing or transporting "in commerce or affecting commerce" any firearms which had previously traveled in interstate commerce. In Scarborough, the Court emphasized the congressional finding that "the receipt, possession, or transportation of a firearm by felons . . . constitutes . . . a burden on commerce or threat affecting the free flow of commerce." Scarborough, 431 U.S. at 571 (quoting 18 U.S.C. app. § 1201).
371. 932 F.2d 1330 (9th Cir. 1991).
372. 18 U.S.C. § 921(a)(20) (1994).
373. Geyler, 932 F.2d at 1332-33.
374. The court relied on ARIZ. REV. STAT. ANN. § 13-904 (1994). Geyler, 932 F.2d at 1331 n.1. The statute stated:
Upon completion of the term of probation, or upon absolute discharge from imprisonment, and upon the completion of payment of any fine or restitution imposed, any person who has not previously been convicted of any other felony shall automatically be restored any civil rights which were lost or suspended by the conviction.
ARIZ. REV. STAT. ANN. § 13-904 (1994). See generally Special Project, The Collateral Consequences of a Criminal Conviction, 23 VAND. L. REV. 929 (1970).
375. Geyler, 932 F.2d at 1334.
376. 946 F.2d 1347 (8th Cir. 1991).
377. Id. at 1348-49.
378. Nos. 92-5147, 92-5399, 1993 WL 188295 (4th Cir. June 2, 1993) (unpublished disposition reported at 993 F.2d 1539 (4th Cir. 1993)). See also United States v. Jones, 933 F.2d 1131 (4th Cir. 1993) (companion case to Beecham).
379. Beecham, 1993 WL 188295, at *2.
381. Jones, 993 F.2d at 1131-34.
382. Id. at 1136.
383. Id. at 1135-36 (citation omitted).
384. Beecham v. United States, 114 S.Ct. 1669 (1994). Justice O'Connor wrote the opinion.
385. Id. at 1671-72.
386. One-two-three synthesis has no bearing on the dispute over Congressional intent in drafting § 921(a)(20) during a period of normal rather than constitutional politics because synthesis considers only the intent of "We the People."
387. See Senate passes Brady bill, NEW HAVEN REGISTER, Nov. 21, 1993 at A1; Senate OKs Brady gun bill, NEW HAVEN REGISTER Nov. 25, 1993, at 1 (noting that "[t]he waiting period is set to expire in five years, after a national computerized background checking system is installed"); see also H.R. 2847, 103d Cong., 1st Sess. § 522 (1993) (Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, Title I, s 104(b), 107 Stat. 1543 (1993) (amending 18 U.S.C. § 922); H.R. 1025, 103d Cong., 1st Sess. § 2 (1993); S. 414, 103d Cong., 1st Sess. § 2 (1993); cf. H.R. 277, 103d Cong., 1st Sess. § 2 (1993) (proposing a seven-day waiting period).
Representative Charles E. Schumer of New York recently introduced a proposal for even stricter gun controls, including a national handgun license with a photograph, and a permanent seven-day waiting period on gun purchases. See Steven A. Holmes, Treasury Imposes New Regulations on Some Shotguns, N.Y. TIMES, Mar. 1, 1994, at A1, A20.
388. Some of the waiting period laws, however, impose the regulation through indirect means. For example, New York requires that the local firearm "licensing officer shall act upon any application for a license . . . within six months of the date of presentment of such an application to the appropriate authority." N.Y. PENAL LAW § 400.00(4) (McKinney 1993). In practice, it usually takes four to six months to get a general permit to buy a gun in New York. See Nicholas Goldberg, Gun City Gun Buyers' Promised Land, NEWSDAY, Aug. 3, 1988, at 7; Pat Wadsley, Citizens Strap on Their Guns Arms Bought for Self- Defense, S.F. CHRON., Mar. 1, 1991, at B3.
389. See Waiting Period for Handguns, WASH. POST, Aug. 18, 1993, at D3 (surveying state imposed waiting periods for purchasing guns).
390. For example, Virginia employs an instant background check of applicants for handgun purchases and would be exempt from the waiting period included in the Brady Bill. Donald P. Baker, Va. Candidate Backs Wait of 5 Days to Buy Guns, WASH. POST, July 9, 1993, at D2; VA. CODE. ANN. ss 18.2- 308.2:2, 52-4.4 (Michie 1989). Several recent gun control bills also would establish a "National Instant Criminal Background Check System." See, e.g., H.R. 2847, 103d Cong., 1st Sess. § 523 (1993).
391. See KLECK, supra note 341, at 333; see also Debate: Gun buyers need a cooling-off period, USA TODAY, Mar. 19, 1991, at 10A (stating that "[r] equiring a gun buyer to wait seven days is vital because it provides time for hot tempers to cool").
392. Id. at 333-35; cf. Clifford Krauss, Much Ado, Little Done, N.Y. TIMES, Nov. 23, 1993, at B9 ("In the 22 states that already have such waiting periods, there has been no sign of their having any impact on overall crime."); Seth Mydans, In California, a Lab for the Brady Bill, the Debate on Guns Has No Winners, N.Y. TIMES, Nov. 24, 1993, at A21; Clifford Krauss, Brady Law Takes Effect: Some Gripe but More Shrug, N.Y. TIMES, Mar. 1, 1994, at A20, col. 1; Alvin Powell, State's waiting period effective¾ to a point, NEW HAVEN REGISTER, Dec. 19, 1993, at A1.
393. See Blodgett-Ford, supra note 11, at 546.
394. This conclusion is based on the fact that the waiting period is set to expire in five years, after a national computerized background checking system is installed, and that states such as Virginia, which already have an instantaneous background check, are exempt from the five-day waiting period.
Ironically, the background check requirement that strengthens the Brady Act on Second Amendment grounds may prove to be its downfall on other grounds. See, e.g., Mack v. United States, 856 F.Supp. 1372 (D. Ariz. 1994) (holding that 18 U.S.C. § 922(§)(2) is unconstitutionally vague, a violation of the Due Process Clause of the Fifth Amendment, and conscripts state governments as its agent in violation of the Tenth Amendment), rev'd, 64 U.S.L.W. 2169 (9th Cir. Sept. 8, 1995). But see Koog v. United States, 852 F.Supp. 1376 (W.D. Tex. 1994) (finding no violation of the Tenth Amendment and holding that the sheriff lacked standing to bring a Fifth Amendment challenge).
395. The Brady Act states:
[T]he [person] has presented to the transferor a written statement, issued by the chief law enforcement officer of the place of residence of the transferee during the 10-day period ending on the date of the most recent proposal of such transfer by the transferee, stating that the transferee requires access to a handgun because of a threat to the life of the transferee or of any member of the household of the transferee . . . .
18 U.S.C. § 922(s)(1)(B) (1994); see also H.R. 277, 103d Cong., 1st Sess. (1993) (proposing a seven-day waiting period) and S. 414, 103 Cong., 1st Sess. (1993) (proposing a five-day waiting period); cf. Haw. Rev. Stat. Ann. § 134-9(a) (1992). The Hawaii statute provides:
In an exceptional case, when an applicant shows reason to fear injury to the applicant's person or property, the chief of police of the appropriate county may grant a license to an applicant . . . . to carry a pistol or revolver . . . concealed on the person . . . . Where the urgency or the need has been sufficiently indicated, [the police chief can grant a license to carry the pistol or revolver] unconcealed on the person ....