North Carolina Law Review
March 1997, Page 781
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
BRINGING FORWARD THE RIGHT TO KEEP AND BEAR ARMS: DO TEXT, HISTORY, OR PRECEDENT STAND IN THE WAY?
Thomas B. McAffee* & Michael J. Quinlan**Copyright © 1997 North Carolina Law Review Association; Thomas B. McAffee, Michael J. Quinlan
The Second Amendment is the black sheep of the constitutional family. Paralleling the Amendment's neglect and abuse by commentators is the curious onslaught of misinformation and fear in the public arena. In this Article, Professors McAffee and Quinlan begin the process of restoring the Second Amendment to its rightful place as an individual right enjoyed by the citizenry. Reviewing singular facets of the Second Amendment debate, including the relation between the Militia and Right to Arms Clauses, the meaning of "keep and bear," the relevance of militia provisions today and the abandonment by the Supreme Court as an active participant in the Second Amendment debate, Professors McAffee and Quinlan conclude that the Second Amendment embodied a fundamental personal right to its adopters and that acceptance of their view is supported, rather than foreclosed, by the entire course of America's constitutional development over the past two hundred years.
I. Introduction--Fundamental Right
or Dangerous Anachronism? .............................. 783A. Denial and the Federal Judiciary .................... 784
B. The Public Gun Control Debate and the Right to
Keep and Bear Arms: From Denial to Anger................ 786C. The Stakes in the Constitutional Debate Relating to
Gun Control: Is There a Slippery Slope Here? .......... 794D. The Fundamental Question:
Is the Right to Keep and Bear Arms an Anachronism? ..... 799II. The Text of the Second Amendment ................... 805
A. The Relation Between the Militia and
Right to Arms Clauses .................................. 807B. What Does It Mean to 'Keep and Bear' Arms? .......... 819
III. The Original Understanding of the Second Amendment. 823
A. The 'Mischief' Giving Rise to the Second Amendment .. 823
1. The Limited Relevance of the
Militia Provisions of the Constitution ................. 8242. The Relevance of the Omission of a Bill of Rights ... 829
3. 'The Right to Keep and Bear Arms'
That Was at Risk Under the Unamended Constitution ...... 834a. The Right to Arms Held by the American Colonists .... 834
b. The Right to Arms in the Early American Republic .... 841
4. The Significance of the Absence of a
Provision Declaring the Necessity of a
'Well Regulated Militia' ............................... 852B. The 'Remedy' Embodied in the Second Amendment ....... 858
1. The Virginia Proposal ............................... 860
2. Madison's Proposed 'Second Amendment' ............... 863
3. Congressional Treatment of the
Right to Keep and Bear Arms ............................ 866C. The Post-Ratification Understanding of the
Right to Keep and Bear Arms ............................ 867IV. The Doctrine of Precedent .......................... 873
A. The Federal Case Law and the Doctrine of Precedent... 876
1. The Supreme Court's Construction of the
Right to Keep and Bear Arms ............................ 8782. The Lower Federal Court Cases ....................... 884
B. Precedent, Fundamental Rights, and the
Right to Arms for Self-Defense ........................ 886C. State Constitutional Guarantees of the
Right to Keep and Bear Arms: The Second Amendment
Is Not the Only Game in Town ........................... 888Conclusion ............................................. 892
Appendix: State Constitutional Right to
Keep and Bear Arms Provisions........................... 893[Page 783]
I. Introduction--Fundamental Right or Dangerous Anachronism?
If the Ninth Amendment is the Constitution's neglected "step child," [1] the right to keep and bear arms guaranteed by the Second Amendment [2] is the black sheep of the constitutional family. The reason is clear--the claim that individuals have a constitutional right to own firearms has been relied on to oppose a range of proposed gun control laws that many believe are critical to an effective effort to confront the nation's violent crime problem. The traditional response to the black sheep was to hide what was viewed as scandalous in the closet, and through the years this has been the predominant response to the right to keep and bear arms within the legal academy. [3] As tends to be the case in such matters, this response included a heavy element of denial--less spoken about the matter the better, for the silence by itself implicitly supported the thesis that the right was innocuous because it was tied to (and limited by) the idea of collective defense. [4] But this strategy is ultimately doomed to failure because the right does have its friends, in the form of the National Rifle [Page 784] Association, the opinion of the unwashed masses of people, [5] and a growing number of scholarly voices confirming that the right was viewed as a thing of beauty at its birth. [6] While the period of denial is gradually ending in the scholarly and public debate, as will be discussed hereafter, it appears to be alive and well in the federal judiciary.
A. Denial and the Federal Judiciary
Unlike legal scholars, courts cannot simply leave the Second Amendment entirely off their agenda; litigants have some say in the issues courts address. But the federal courts have employed their own form of denial in refusing to confront, in a serious way, the issues raised by the text and history of the Second Amendment, relying instead on ill-reasoned decisions from the era prior to the incorporation of most of the Bill of Rights into the Fourteenth Amendment and the modern era of civil liberties. Consequently, the Second Amendment stands virtually alone among the major civil liberty guarantees of the Bill of Rights in not having been incorporated into the Fourteenth Amendment and applied to the states, [7] and over the [Page 785] past several decades the lower federal courts have given it the narrowest possible interpretation. [8] There is little to suggest, moreover, that this lack of judicial respect is about to end.
Despite a decade of renewed scholarly interest in the history and meaning of the right to keep and bear arms, and notwithstanding recent scholarly authority that supports the view that the Second Amendment was intended to secure a personal right to own and use firearms, [9] in the 1995 case, Love v. Pepersack, [10] the United States Supreme Court denied certiorari and thereby declined, once again, to consider the question whether the Amendment applies to the states through the Fourteenth Amendment or, more generally, imposes any meaningful limits on governmental authority to regulate firearms. [11] Love involved denial of an application to purchase a gun based on a discretionary police practice that lacked any warrant in applicable state law. [12] In short, Love was hardly a case in which an important, let alone a compelling, state interest was involved. For those committed to a constitutional right to own firearms, the ruling in Love is especially distressing, not only because the weight of scholarly opinion as to the original meaning of the Second Amendment warrants a reconsideration of the ill- reasoned decisions of an earlier era, [13] but also because the case itself presented an especially attractive occasion for acknowledging that there are limits on the power of government to infringe on the right of gun ownership.
B. The Public Gun Control Debate and the Right to Keep and Bear Arms: From Denial to Anger
Considering that claims rooted in the right to keep and bear arms have become a fixture of the long-running gun control debate in this country, advocates of gun control and their public media supporters have not been afforded the luxury of simply ignoring the Second Amendment. Unfortunately, popular debate of the issue, [Page 787] like the scholarly and judicial debates, has been characterized by a basically dismissive approach to claims of constitutional freedom. By and large, the media has uncritically reported the court decisions rejecting individual rights claims, generally concluding that the constitutional issue is definitively resolved, [14] and repeating the standard argument that the Amendment is really about protecting state militias rather than securing a private right to arms. [15]
It is not uncommon for media presentations to assume that the militia-centered reading of the Amendment is the correct one. Sometimes this assumption forms the basis of a description of the Second Amendment and its purposes that the reader is simply to take for granted. [16] Even more seriously, this assumption often underlies unsupportable [Page 788] claims that reflect a simple lack of research. [17]
When the denial stage passes, however, there is anger. The merits [Page 789] of the textual and historical issues aside, invocation of the right to bear arms has been viewed with alarm and frustration among many participants in the public discourse relating to gun control. [18] The claim that gun ownership constitutes a fundamental right does not go together well with the general theme of twenty-five years of gun control advocacy that focuses on an alleged "epidemic" of gun violence and perceives America as "gun crazy." [19] Indeed, the right to keep and bear arms has become a kind of symbol of the perceived intransigence of the gun rights lobby and its inclination to see gun control [Page 790] as a "rights" issue rather than a straightforward crime control or public health issue. [20] Along these lines, when the St. Louis Post-Dispatch published a special series commemorating the 200th anniversary of the Bill of Rights, the segment on the Second Amendment contained a substantial sidebar summarizing the anti-gun views of a woman whose brother had been shot by a criminal--a strange choice indeed in what was otherwise a celebratory treatment of the heritage of the Bill of Rights. [21]
Not surprisingly, the right to keep and bear arms provokes similar reactions among scholars and judges. [22] When scholars conclude that the Framers intended a personal right to keep and bear arms, this finding is viewed as "embarrassing" by civil libertarian advocates of extensive gun regulation, [23] and when it is found that the Amendment was designed to facilitate the right of the people to resist tyrannous government, it is seen as "terrifying." [24] Gun rights supporters, [Page 791] moreover, are found guilty by association. The victims of gun violence, it is frequently observed, are often women and African Americans; the inference drawn, more or less explicitly, is that gun rights advocates are basically indifferent to the rights and interests of these groups. [25] Because extremist political groups, especially on the right, are almost always gun rights advocates, gun rights advocacy is often associated with anti-government paranoia. [26] It is, in short, an oft- [Page 792] stated opinion that the right to keep and bear arms is a dangerous anachronism in the late twentieth century. [27]
The view that the right to keep and bear arms is an anachronism in the modern world almost certainly predominates among media and academic elites; [28] it is the average American who appears to disagree. In a recent conversation with colleagues, several expressed the view that if the Constitution were being drafted today, the Second Amendment would not be included. But it is not clear that this is correct, at least if the voice of the people is heard. Polling data suggests that a majority of Americans believe they have an individual constitutional right to keep and bear arms. [29] Moreover, surveys also indicate that the number of United States households that own firearms [Page 793] ranges from forty-six percent to fifty-one percent. [30] Most telling, however, is that forty-three states have their own right to keep and bear arms provisions, [31] seven of which are new or amended provisions adopted in the last fifteen years. [32] It is perhaps unsurprising, then, that much of the political advocacy concerning gun control avoids the constitutional question altogether and emphasizes the theme of reasonable regulation rather than the irrelevance of the right to arms. [33] This is one reason to discuss whether the constitutional question is truly relevant to the gun control debate as it is developing, before more fully summarizing and assessing the claim that the right to keep and bear arms is basically an anachronism. [Page 794]
C. The Stakes in the Constitutional Debate Relating to Gun Control: Is There a Slippery Slope Here?
As noted above, advocates of increased gun restrictions often profess a desire for merely "reasonable" or "limited" controls. Reasonableness, of course, is, like beauty, truly in the eyes of the beholder. Despite frequent complaints about the unreasonableness of the gun rights lobby, there are forceful advocates of the personal right to keep and bear arms under the Second Amendment who acknowledge that its recognition need not preclude regulation designed to prevent and punish the misuse of firearms. [34] But if anything is clear in the gun control debate, it is that the hostility that a great many gun control advocates hold toward the idea of a constitutional right to own firearms stems from the belief that their agenda cannot be reconciled with any meaningful constitutional right to own firearms. [35] From leaders of the anti-gun movement to their media and legislative supporters, the ultimate goal of firearm reduction if not complete eradication is increasingly being made clear. [36] Each legislative achievement is viewed as a stepping stone to the ultimate objective: "'total control of handguns in the United States."' [37] [Page 795]
This is why key proponents of the Brady Handgun Violence Protection Act (Brady Act) [38] viewed it, in significant measure, as a "cornerstone" or "framework" upon which to construct additional controls. [39] Senator Ted Stevens's prediction during the 1991 debate over the Brady Bill that the bill was "just the beginning of a flood of restrictions [Page 796] planned by gun control advocates" [40] has in fact been borne out by the veritable floodgate of proposed legislative restrictions that followed the bill's passage in 1993. Two bills proposed in 1994 would have enacted a wide range of restrictions on gun owners, many of which reflect the desire to reduce gun ownership through burdensome regulation. [41] In addition, numerous gun control bills were introduced in the 103rd [42] and 104th [43] Congresses, and a federal"[Page 797] assault weapons" ban was enacted in 1994. [44] [Page 798]
Given these facts, it is difficult to discount the fears of gun owners that federal legislation like the Brady Act and the "assault weapons" ban are mainly about establishing a grounding from which to expand an ever- tighter web of restrictions on the rights of law-abiding citizens who own guns. Suggesting that opposition to additional controls is only natural "given the rancor with which controls are advocated and the purposes avowed by their more extreme advocates," Don Kates poses the telling question: "Would driver licensing and automobile registration have been adopted if they had been advocated on the basis . . . that the desired end is to progressively increase regulation until cars are unavailable to all but the military and the police?" [45] In short, anti-gun forces are attempting to make good on Representative Charles Schumer's pledge to "hammer guns on the anvil of relentless legislative strategy." [46] [Page 799]
D. The Fundamental Question: Is the Right to Keep and Bear Arms an Anachronism?
As noted in Part I-B above, many of society's elite decision-makers believe that the right to keep and bear arms is an anachronism--and to the extent that it serves as a barrier to effective gun control legislation, a dangerous anachronism at that. But there are variations on this basic theme. For some, of course, this conclusion rests on a highly contested interpretation of the Amendment. If the Second Amendment is really about militias, rather than about guns, and if the sort of militias to which it refers no longer exist, the provision is an anachronism because there is no longer any reason to invoke it. [47] According to this view, the right to keep and bear arms still exists, but as with the Third Amendment right not to have soldiers quartered in your home, it has no relevance. [48] This argument amounts to a claim that modern proponents of gun rights have either misinterpreted the Second Amendment or misrepresented it to the American public. [49] The Amendment, under this view, has no bearing on the gun control issues being debated in legislative chambers throughout America today. The issue raised by this argument is whether its proponents have correctly interpreted the Second Amendment.
An equally standard argument insists that the constitutional status of the claimed personal right to keep and bear arms has long since been resolved and to continue to raise a long-settled issue is to rely upon an anachronism. No less than a former Solicitor General has stated that it is "perhaps the most well-settled proposition in American constitutional law" that "the Second Amendment poses no barrier to strong gun laws." [50] As if this language were not strong enough, [Page 800]
Andrew Herz has recently complained that the gun rights lobby has generated "phantom constitutional barriers discredited by the courts." [51] The view that the Second Amendment guarantees any significant protection to a personal right to own a firearm is, according to Herz, simply a "fabrication." [52] While Herz supports this conclusion with a small dose of text and history, [53] along with some reliance on the "changed social circumstances" of modern America compared to the founding period, [54] his "fabrication" charge rests centrally on the claim that the rejected view "is not the law of the land" because the federal courts "have invariably ruled that the Second Amendment right to bear arms applies only to those individuals using firearms in connection with their service in an organized state militia." [55]
There is, additionally, a third version of the anachronism argument. Some modern scholars acknowledge that under the Second Amendment all citizens were to hold a personal right to private arms, but they insist that the presuppositions of this right no longer exist. The concept of a general militia, comprised of virtually all adult males who make up the political communities within the states, has no [Page 801] modern counterpart. [56] Moreover, the republican ideology that underlay the notion of a general citizen militia has given way to a liberal individualism that does not call for the sort of patriotic sacrifice upon which the general militia rested, and most modern Americans know little or nothing about the philosophy that informed the clause. Consequently, few citizens today would even understand, let alone endorse, the founding generation's idea that a militia is "necessary to the security of a free state." [57] Thus, the central rationale for the right to keep and bear arms--that it would perpetuate a security-enhancing citizen militia--no longer exists.
The Framers also believed that an armed citizenry would provide a safeguard against governmental tyranny. [58] But this revolutionary philosophy, which remained a potent force at the time of the adoption of the Constitution, is now largely irrelevant in the nation with the oldest constitution, and perhaps the most stable government, in the world. If the philosophy of the right of revolution itself is not dead, to many the idea that an armed citizenry might be a potent force against tyrannous government seems laughable in an era in which the United States government possesses nuclear weapons. [59]
To the extent that ideas of personal self-defense played a role in the adoption of the Second Amendment, it has been argued that states should be able to regulate, or even prohibit, firearm ownership on the ground that widespread possession of firearms diminishes, rather than enhances, personal security. [60] There is no question that we [Page 802] live in an interdependent society in which we come into close proximity to our fellow citizens on a more or less constant basis. For critics of a right to own and use firearms, widespread possession and use of firearms is perceived as making our world more dangerous rather than less dangerous. Moreover, it can be argued that the social contract theory that we give up some rights to obtain the "protection" of government seems especially applicable to gun rights inasmuch as modern communal life includes well-organized police forces for the protection of citizens--a feature of modern life without any counterpart in the United States of 1787.
On one or more of these grounds, many organizations and commentators contend that, whatever the intentions of the Amendment's framers, we would be better off not attempting to bring forward the allegedly outdated Second Amendment because it would mean something far different to us than it did to its drafters and, in the long run, it would hurt the cause of promoting fidelity to the Constitution. [61] According to this argument, the Second Amendment does not "translate" in the context of modern society, because our society's philosophical presuppositions and material conditions have changed in critically important ways since the adoption of the Bill of Rights.
While the first and second versions of the anachronism argument rest on assumptions relating to the process by which we give authoritative meaning to the Constitution over time, the third version relates to what the Second Amendment should plausibly be understood to mean in the context of modern America--or perhaps to whether we should even have a Second Amendment at all. While many proponents of the anachronism argument who would ignore the original meaning are undoubtedly non-originalists, it can be argued that the problem of "translating" 200-year-old norms to a modern culture appeals to those committed to an ideal of "fidelity" in constitutional interpretation [Page 803] as much as it does to those who simply would not be bound by decisions made in such a distant past. [62]
All three versions of the anachronism argument present issues that Second Amendment scholars should feel compelled to address. In this Article, we discuss whether constitutional text and history, on the one hand, or case law precedent, on the other, basically moot the question of whether a personal right to keep and bear arms makes any sense in modern America. [63] Part II of this Article analyzes various issues raised by the text of the Second Amendment. In particular, Part II-A refutes the claim that the Second Amendment's wording and syntax precludes an interpretation that recognizes a personal right to have firearms. Part II-B, in turn, develops the issues of meaning raised by the Second Amendment's language guaranteeing a right to "keep and bear" arms. Both Parts II-A and B criticize overblown claims as to the force of the Second Amendment's language by itself and argue that the critical questions raised by the text of the Amendment can only be answered by reading the text in the context of the concerns that gave rise to it. Part III analyzes the Second Amendment in light of the extrinsic evidence concerning the original intentions of those who drafted and ratified it. Part III-A examines the evidence as to the "mischief," or defect, to which the Second Amendment was addressed. We conclude that the Second Amendment arose, as did the Bill of Rights generally, from the fears generated by the omission of a number of fundamental guarantees in the Constitution as proposed to the states. In particular, the Constitution's critics feared that the right of the people to keep and bear arms, as secured originally by the 1689 English Bill of Rights and guaranteed by state constitutions in the early American republic, would be jeopardized because of the omission of such a guarantee in a Constitution of enlarged national powers. By contrast, we show that the historical evidence does not support the modern claim that the Second Amendment was a response to concerns about the extent of control over state militias granted the national government by the proposed Constitution. [Page 804]
Part III-B shows that the Second Amendment was drafted to provide an efficient "remedy" to the mischief created by the omission of the long- established guarantee of a right to keep and bear arms. The drafting history of the Amendment confirms that the Framers sought to secure a personal right to keep and bear arms, both to facilitate the natural right of self-defense and to assure an armed citizenry from which to draw a citizen militia to protect the community from foreign invasion or tyrannical leaders. The history also shows that the people's right to keep and bear arms was drafted by Madison to ensure an enforceable constitutional right, while the Amendment's statement that a "well-regulated Militia" is "necessary to the security of a free state" was drafted as a declaration of classical republican principles favoring a militia over a standing army, but not as an enforceable limitation on national power.
Next, Part III-C surveys the post-ratification statements of legal commentators, courts, and Reconstruction-era legislators confirming the pervasive understanding that the Second Amendment guarantees a personal right to have firearms. The evidence reviewed shows that the personal right understanding of the Amendment was the uniformly held reading for more than a century after the adoption of the Bill of Rights.
Finally, Part IV addresses the claim of some recent commentators that stare decisis stands as an insurmountable barrier to bringing forward the right to keep and bear arms. Part IV-A analyzes the body of federal case law on the Second Amendment and concludes that it presents no such barrier. The few cases in which the United States Supreme Court has addressed the Amendment include analysis that is far more favorable to the individual right interpretation than has often been acknowledged by commentators. Part IV-A also demonstrates that the lower federal court cases squarely rejecting an individual right understanding of the Second Amendment ignore overwhelming evidence as to the original meaning of the Amendment, as well as the wealth of materials showing that an individual right reading was the general understanding of the Amendment throughout the nineteenth century. These decisions rest on a misreading of relevant Supreme Court precedent and rely on outdated cases relating to the incorporation of the Bill of Rights into the Fourteenth Amendment's Due Process Clause.
Part IV-B suggests that, even if modern federal precedent stood as a barrier to recognition of an individual right to keep and bear arms under the Second Amendment, the Supreme Court's modern fundamental rights case law would require fresh consideration of the right [Page 805] to keep and bear arms as a fundamental right of personhood. We review the modern Supreme Court's development of an important, if controversial, line of fundamental rights decisions explicating the Due Process Clause of the Fourteenth Amendment--a body of case law that has arisen during the nearly sixty years since the Supreme Court last addressed an issue arising under the Second Amendment. We show, in turn, that an examination of the criteria for inclusion within the category of fundamental rights articulated by the Supreme Court and explicated by commentators, reveals that modern courts cannot justifiably rely on cases narrowly construing the Second Amendment as a basis for rejecting the claim that the right to keep and bear arms is fundamental to a system of ordered liberty and a fundamental right in the American tradition. We conclude that, unless the Court is willing to reconsider its fundamental rights doctrine in its entirety, the historical right of self-defense will have to be confronted to determine whether the individual right to have firearms should be recognized as among the fundamental rights of personhood guaranteed to all Americans.
Part IV-C reviews another feature of the American constitutional landscape that reveals the futility of attempting to rely on federal cases rejecting a personal right to arms to justify terminating debate on the merits of a right to keep and bear arms--the pervasive recognition of the right to keep and bear arms in many state constitutions, often recognizing a personal right to arms in express language. We show that even if the federal Second Amendment were viewed as having a meaning fixed by modern precedent, none of this case law precludes state courts from construing their state constitutional provisions to recognize a personal right to arms. Considering that the gun control debate has as much significance at the state level as it does at the federal level, the meaning of the right to keep and bear arms, and inevitably its "fit" in our modern world, will remain issues that thoughtful constitutional decision-makers will be forced to consider.
II. The Text of the Second Amendment
The central question in the Second Amendment debate is whether the right to "keep and bear arms" gives to individual citizens the right to own and use private firearms outside the context of service in a state-organized militia. Advocates of the more restrictive reading answer this question in the negative. They contend that the Amendment's first clause, the Militia Clause ("A well regulated Militia, being necessary to the security of a free State"), sets forth the limited [Page 806] purpose for which the right contained in the Amendment's second clause, the Right to Arms Clause ("the right of the people to keep and bear arms shall not be infringed"), is secured. [64] Accordingly, under this line of thought, the right is limited to the public sphere of militia service, and has no implications at all for the non- militiaman. The Amendment only provides that the federal government may not dismantle the militias within the states, nor prohibit those in the militia from possessing and using weapons when they are engaged in militia service. [65]
Those who argue that the Second Amendment recognizes an individual right to bear arms contend that the right to keep and bear arms stands on its own footing, despite the close historical connection between the ideal of a citizen-based militia defense system and the notion of an armed citizenry. The pedigree of the Second Amendment right to arms extends at least to the 1689 English Bill of Rights, which guaranteed Englishmen the right to private weapons for lawful purposes. [66] This constitutional guarantee, in turn, assures the existence of an armed people from whom a citizen-based militia can be derived. While the right to keep and bear arms was designed to assure the existence of a body of citizens with private arms, and thereby reinforce [Page 807] the viability of the militia system, the right was never limited to militias or militiamen; in fact, the right to arms grew out of the common-law and natural right of self-defense and, in turn, was viewed as lending support to that underlying right as well as to the goal of collective defense. [67]
Although many on both sides of this debate have agreed that the Amendment can be understood only in proper historical context, each has advanced important claims about the text that will serve to frame the issues. The text also warrants independent attention because it has become increasingly common for contributors to the public and scholarly debate to claim that the language of the Second Amendment resolves the fundamental debate as to the relevant meaning of the right to keep and bear arms. [68]
A number of critical questions are raised by the text of the Second Amendment: What is the relationship between the Amendment's two clauses? Does the Amendment's Militia Clause function as a limitation or qualification of the guarantee embodied in the Right to Arms Clause? Does "the people" to whom the right to arms is guaranteed refer to the entire body of citizens, whether members of the militia or not, or merely to the militia as an institutional symbol of popular involvement in public life? Does the guarantee of a right to "keep and bear" arms indicate a uniquely military context in which the right is to be exercised? The sections that follow will develop the issues raised by these questions and, at the same time, illuminate some crucial questions of method in constitutional interpretation.
A. The Relation Between the Militia and Right to Arms Clauses
Advocates of the more restrictive reading of the right to keep and bear arms contend that the Militia Clause is the key to understanding the Second Amendment. Most contend that when the right to arms guarantee is read in historical context, it essentially amounts to a claim that the people as a whole should be able to have a militia to guarantee their collective security. [69] The Second Amendment, accordingly, reflects this priority in its text; the people have a right to have arms in the context of a well regulated militia. The Militia Clause [Page 808] thus serves to "limit" or "qualify" what might otherwise be taken as a general and unrestricted popular right to arms; it confirms the militia-based historical understanding of the popular right to arms. [70] Even so, most of the scholarly proponents of this argument about the relationship between the clauses would acknowledge that its force turns on whether the historical evidence establishes that the right to arms was generally understood as being uniquely tied to militias and militia service. If so, the text can be seen as reflecting, and perhaps reinforcing, this larger understanding of the Amendment's purpose.
But arguments can easily take on a life of their own, and it is now a common phenomenon for advocates of this interpretation in the popular media to use the placement of the Militia and Right to Arms Clauses in the Amendment as virtually a trump in the argument. [71] These advocates contend that gun rights proponents simply fail [Page 809] to perceive, or choose to ignore, the obvious fact that the right in the second clause is framed and limited by the language of the first clause. [72] This use of the Militia Clause as a trump has even found its way in to the scholarly literature. [73] Those who rely on the text as the key weapon make only the most general claims in support of the historical purpose supposedly embodied in this text. [74] It has been argued that the text of the Militia Clause requires constitutional interpreters to favor limits on the right to bear arms over conflicting understandings of that right derived from the "background understanding" of those who drafted and ratified the Amendment. We are told that this is true because while "history serves to illuminate the text," it is "only the text itself which is law." [75]
Consider the full argument of Laurence H. Tribe and Michael C. Dorf: [Page 810] Unique among the provisions of the Constitution, the Second Amendment comes with its own mini-preamble, setting forth its purpose: to foster a "well-regulated Militia." This purpose has little to do with individuals possessing weapons to be used against their neighbors; as a result, the Second Amendment has not been interpreted by the courts to prohibit regulation of private gun ownership. Nonetheless, in an essay provocatively titled "The Embarrassing Second Amendment," Sanford Levinson of the University of Texas argues that because the enactment of the Second Amendment took place during an era that valued armed citizens as a civic republican bulwark against tyranny, it must be interpreted according to civic republican traditions. Levinson may well be right that the Second Amendment was enacted against a civic republican background that saw individual gun- ownership as part of the "right of the people to keep and bear Arms" that promotes a "well-regulated Militia." But the Second Amendment did not enact the background understanding. The only purpose it enacted is the one contained in the text, for only its words are law. And in modern circumstances, those words most plausibly may be read to preserve a power of the state militias against abolition by the federal government, not the asserted right of individuals to possess all manner of lethal weapons. [76]
By its own terms, this argument proceeds along odd lines. It relies upon the text establishing the militia as the focus of the Amendment as a justification for failing to explore the probable intended meaning of the other critical language in the Amendment's text--the express grant of a right to keep and bear arms to "the people." [77] Don Kates has argued powerfully that, in the context of the balance of the Bill of Rights, the Second Amendment's recognition of a right vested in the "the people" strongly supports an individual right, rather than a state right, interpretation. [78] Tribe and Dorf do not [Page 811] address the relevance of these reinforcing texts, let alone the historical arguments that the Amendment's reference to "the people" reflects a history relating to an individual right to have arms. [79] What started out, then, as an argument in favor of what is "contained in the text," as against a mere background understanding, winds up as quick justification for rewriting the balance of the text in order to privilege a preferred reading based on "modern circumstances." [80] Moreover, given that the right of the people to keep and bear arms had previously been guaranteed, both in the English Bill of Rights, [81] and in several state declarations of rights, [82] and thus had served as a popular limit [Page 812] on colonial and state governments, [83] most textualist canons of construction would acknowledge that the provision ought to be read in para materia with these related provisions. [84] The most obvious question suggested by these earlier texts is whether it seems plausible that a guarantee so obviously derived from these state counterparts would have been uniquely designed only "to preserve a power of the state militias against abolition by the federal government." [85] What did these analogous guarantees mean as against state governments? [86] Particularly when conceived as a right against state government, the right to "keep and bear" arms seems to be an empty shell if it includes, for example, only the right to employ a firearm while actually serving in the militia, but not a right to hold it privately. Under such a [Page 813] construction, the state might constitutionally disarm the people, and emasculate the protection to liberty that many thought the militia provided, merely by prohibiting private ownership of weapons and then choosing not to call the militia to duty. [87]
If the second clause of the Second Amendment seems to cut in favor of a personal, as well as a collective, right to possess private firearms, the first clause need not be read to point the other way. As even Tribe and Dorf effectively acknowledge, the existence of an armed people from which to draw the militia, a people guaranteed the right to hold private arms, could have been seen as a key to fostering the militia envisioned by the Militia Clause. [88] In fact, classical republican rhetoric relating to the militia contemplates an ideal of universal service and an underlying assumption of an armed citizenry. [89]
Before we conclude that the stated goal of "security of a free State" suggests a very narrow end to which the Amendment was directed, [Page 814] [90] we ought to be fairly sure that we know what that phrase means. Does this text suggest that the primary goal is the security of the political entities known as the states, [91] or perhaps "the government" in general, meaning both the federal and state governments? [92] Or, given the provision's location within the Bill of Rights, ought we to consider that the real emphasis was on securing a "free State," with the corresponding implication that the end to be achieved is freedom as much as it is security or government? [93] The emphasis belongs on freedom more than on the state, inasmuch as government itself was viewed under prevailing social contract theory as the agent of a free and sovereign people and as a tool for securing personal and collective freedom and rights. [94] Founding-era Americans, moreover, who fought [Page 815] to preserve their liberty, would have been uninterested in any "security" that did not include security against tyranny. [95]
If we place the focus on freedom as much as on government, we see that the text itself reflects that the militia was highly regarded not only because of its potential role in confronting external threats or widespread lawlessness (e.g., a Shay's Rebellion), but also because of the part it might play in confronting any attempt to impose despotic government. [96] Further, a right to a militia as a popular guarantee of freedom would be a chimera if a tyrant's goal could be realized by the simple expedients of requiring the storing of all militia arms in a central, government-controlled location and the prohibition of private gun ownership. [97] It might then be clear that it was no accident that the [Page 816] right embodied in the second clause of the Second Amendment was written in favor of "the people" rather than in favor of "militiamen performing militia duties" or in favor of state governments.
If we capture the language describing the goal as "the security of a free State" through the wider lens of the people's interest in freedom, we might also begin to see that the goal of collective security furthered by the militia and the right to arms went beyond what today we think of as military duties, with a sole focus on securing the people against external and large-scale threats. In the generations preceding the founding era, citizens had a duty to be armed to lend support to collective security through occasional militia service, as well as in ways we would recognize today as police rather than as military functions. [98] Surprisingly enough, for many modern Americans, acts that today might be seen as protected by a privilege of self-defense or defense of others, were viewed in the founding era as the performance of duties of citizenship as much as they were the exercise of a privilege. [99] The variety of roles served by the armed citizen militiamen, roles in which their efforts were often supplemented by citizens who were not formally eligible for militia service, reflect that the goals served by the clauses of the Second Amendment included the personal security of every member of society, for a society can be called free only to the extent that it guarantees security to each of its members. [100]
The structural argument given above indicates that the Amendment's [Page 817] language can be read as guaranteeing a private right to arms even when we start with the premise that the Militia Clause functions as a "mini-preamble" that orients the Amendment to fostering a militia. But the Militia Clause need not be read as limiting the Amendment's arms guarantee in such a fashion. Although it appears formally as an introductory clause, the Militia Clause is not described, either in the text or in any contemporaneous source, as a "mini-preamble" or a limiting clause. Moreover, neither the syntax nor the text requires that it be read as a limitation on the right to keep and bear arms. [101] That a purpose served by the arms guarantee, even a central purpose, is to promote the perpetuation of the militia system need not imply that the militia system is the only end served by that guarantee. To conclude otherwise based on text and syntax alone is basically to rely on the reasoning underlying the common-law maxim expressio unius est exclusio alterius, which takes the naming of one thing to imply the exclusion of others. [102] As with many common-law rules of construction, the exclusio maxim is often a useful cue to perceiving statutory design, as in the example of the enumerated powers scheme of Article I of the Constitution. [103] At the same time, leading authorities on statutory construction agree that this doctrine is almost never self-applying and requires careful attention to the entire context of the provision in question to determine whether the exclusio inference was intended. [104] One reason for skepticism [Page 818] about the usefulness of the maxim is that the mentioning of particular items in a text often reflects not a design to preclude others, but only the fact that, for a variety of possible reasons, the mentioned item was particularly before the mind of the drafters. [105]
Placing these two clauses into a total context requires going beyond the text itself. There are, however, textual clues suggesting that reliance upon the placement of these clauses alone would be premature, if not obviously fallacious. We are unaware, for example, of any evidence suggesting that the Second Amendment was intended to have a different meaning than the amendment proposed by the Virginia state ratifying convention, from which James Madison drafted the Second Amendment. That proposal included both clauses of what became the Second Amendment, but neither its language nor structure suggest that the two clauses lack independent force. Among other things, the two clauses are separated by semi-colons and placed in reverse order from the order found in the final text of the Amendment. [106] As stated there, the Right to Arms provision clearly [Page 819] is not limited to serving the end of ensuring the existence of a militia. That the clauses were thought of as independent, if closely related, provisions, is further suggested by the fact that the substance of each of the two clauses was included, without any reference at all to the other, in provisions found in predecessor state constitutional provisions. [107] At the very least, these additional textual clues, which go unmentioned by those who, like Tribe and Dorf, place great weight on the wording and placement of the two clauses, strongly suggest the need to look more closely at both clauses and their relationship to each other, with the help of the context that the relevant historical materials might provide.
B. What Does It Mean to "Keep and Bear" Arms?
Those who claim that the Second Amendment does not guarantee any right to own and carry private arms also assert that their understanding is built into the very terminology by which the right to arms is described. A private individual might own or possess arms, she might use or employ them, but only members of a militia "keep and bear" arms, because the concept of "bearing" arms suggests a military use. [108] Accordingly, it is argued that even the clause guaranteeing a right to arms lends support to the idea that it is only in the limited context of a "well-regulated militia" that the right obtains meaning. [109] Critics of the right to private arms theory have thus provided multiple references to the historical use of "keep" and "bear" in military settings as well as to the choice of other language in non-military settings. [110]
It is highly probable that the Framers of relevant constitutional provisions, including the Second Amendment, chose language that associated the right to arms with citizen militias and collective defense. This is natural enough, for government actions against the right of the people to be armed had, in their historical knowledge and experience, [Page 820] been targeted at preventing the people from being enabled to collectively defend their rights and liberties. [111] There had never been a mass seizure of firearms in the American colonies (or practically anywhere) to prevent their employment in purely private acts of self-defense; there had been, on the other hand, seizures of stocks of weapons, as well as of privately held weapons, in the attempt to prevent effective resistance against English policies--seizures that were resisted as blatant violations of the English Bill of Rights. [112] But even if the right was framed as a right to "bear" arms to reinforce that the right extended to arms to be employed in the community's collective defense, this need not imply that the term would have no application outside the actions of a formal militia. At the very least, the popular resistance engaged in by the American colonists often involved local militias, but it extended to virtually the entire population; those not serving within the militia were equally assertive of the claim of the English constitutional right to "have" arms and to carry them as security for their own defense and the defense of their communities. [113]
There are, additionally, grounds to warrant careful consideration of the right to "keep and bear" arms in the total historical context of the right to arms, rather than purely by reference to evidence of usage in other settings. For one thing, the argument from the particular words chosen to describe the right appears to cut both ways. Even if the right to "bear" arms was restricted to the performance of militia duties, the purpose of assuring the existence of a militia could have been realized by guaranteeing only a right to "bear" arms; the right to "[Page 821] keep" arms would seem to include at least a personal right to have in one's control, as well as in one's home, the weapons one might "bear" in support of the common defense. [114] Arguably the acknowledgment of a right to "keep" arms is suggestive of itself that the right-bearer is to have a wide discretion to employ the arms for lawful purposes. [115]
Moreover, despite the frequent linkage between "bearing" arms and military service, it is clear that the term was not invariably used as a term of art to refer solely to the employment of weapons in a military setting. An early Virginia law required that "all men that are fittinge to beare armes, shall bringe their pieces to the church uppon payne of every offence." [116] It is important to underscore that this was not a militia law, and that laws requiring the virtually universal holding and carrying of weapons were common in the colonies. [117] Similarly, Stephen P. Halbrook has observed that in a 1785 game bill, that was drafted by Jefferson and proposed by Madison in the Virginia Assembly, a violator of the bill's provisions was to be prohibited to "bear a gun out of his inclosed ground, unless whilst performing military duty." [118] As Halbrook observes, this statement reflects that bearing arms was not exclusively associated with performing militia duties nor limited to a military context. [119] [Page 822]
Perhaps most importantly, while the right to arms guaranteed by the English Bill of Rights did not use either of the terms under discussion, but referred instead to the right to "have" arms, [120] it appears that Americans viewed that provision as acknowledging a broad right to own and use weapons for lawful purposes and perceived the state constitutional guarantees, cast in terms of the right to "bear" or to "keep and bear" arms, as offering them comparable protection. [121] If these historical claims are true, and if there is a continuity between the guarantees of the state constitutions and the Second Amendment, there is good reason to doubt that the language was employed in order to describe a narrow right that extended only to arms employed in formal militia service. [122] We turn next to history to determine whether the context of the adoption of the Second Amendment might [Page 823] shed light on the issues raised by its text.
III. The Original Understanding of the Second Amendment
When legal texts lend themselves to conflicting interpretations, as they often do, a time-honored technique for shedding light on the intended meaning is to consider the text in the light of what external context reveals to be the purpose for which it was enacted. As formulated in the oft-cited Heydon's Case, [123] interpreters are to look for the "mischief" to which the provision is addressed, or the "defect" in existing law it was designed to correct, and the "remedy" that was conceived to cure the mischief or defect. Then, in turn, they are to interpret the text, if possible, so as to defeat the feared mischief and advance the contemplated remedy. Such an analysis of the Second Amendment may prove helpful to analyzing the conflicting claims about the proper interpretation of the text.
A. The "Mischief" Giving Rise to the Second Amendment
There is an unusual amount of conflict as to the precise nature of the concerns that led to the adoption of the Second Amendment. [124] At a high level of generality, all commentators agree that the Bill of Rights in general addresses the widespread fear that the unamended Constitution established an all-powerful national government. [125] It is also indisputable that the most compelling argument advanced against the proposed Constitution was that it failed to provide adequate security for the traditional, fundamental rights of the people in the form of a declaration or bill of rights. [126] Also in general terms, commentators agree that the Second Amendment was at least a partial response to concerns about the extent of military power granted to [Page 824] the new government by the Constitution. [127] Here commentators part company. Perhaps the most intriguing argument advanced against the notion that the Second Amendment secures a private right to arms is the assertion that the common-law and natural rights foundations for such a private right are largely irrelevant because the Amendment is so clearly the outgrowth of a ratification-period structural debate as to the division of authority between Congress and the states with respect to control of the state militias.
1. The Limited Relevance of the Militia Provisions of the Constitution
Advocates of a militia-only reading of the Second Amendment have contended that its provisions are best understood as the product of the ratification-era debate over the potential for abuse inherent in the Constitution's militia provisions [128] that empowered Congress to exercise control over the militias of the states. [129] Critics of the proposed Constitution, known as Antifederalists, charged that the Constitution's militia provisions would empower Congress to harm the state militias by both neglect and abuse, including decisions to withhold arms and supplies necessary for an effective militia. [130] Despite assurances by Federalist defenders of the Constitution that states retained adequate authority with respect to their militias, including the authority to appoint militia officers, [131] and concurrent authority to arm their own militias, [132] Antifederalist spokesmen demanded the inclusion of constitutional safeguards on behalf of the militias and the states, including safeguards that would establish greater [Page 825] state authority over their own militias. [133] Seeing the Second Amendment as a unique outgrowth of this ratification-era debate as to state versus congressional power over the militias, commentators have contended that "the concern of the Second Amendment is solely the distribution of military power between the states and the federal government." [134]
By contrast, those who defend the private right to arms reading of the Second Amendment contend that the militia-centered ratification debate must be seen against the backdrop of the general sorts of concerns that had previously led state constitutional draftsmen to assert the classical preference for citizen- based militias as the primary defense of nations and to guarantee the right to bear arms. According to their view, the "defect" in the Constitution that led to the adoption of the Second Amendment was its failure to include these traditional rights of Englishmen as limits on a government that many believed had been granted ample powers with which to threaten those rights. [135] To the extent that the debate over the militia provisions of the Constitution is used to establish anything more than the basis for concern that the Constitution threatened previously established constitutional principles, reliance on it is misplaced.
Based on a straightforward analysis of relevant texts alone, it seems clear that the relationship between the Second Amendment and the debate over Congress's militia powers has been greatly exaggerated by commentators anxious to limit the Amendment's scope. As [Page 826] previously noted, the text of the Second Amendment is drawn from language already included in several state declarations of rights. [136] Advocates of a purely states' rights interpretation of the Amendment have not attempted any explanation as to why a purely structural limitation to preserve state power would have been drawn from the pre-existing constitutional provisions that served to limit state government. Ratification references to the right to arms appear most often in proposed amendments to the Constitution alongside traditional individual rights guarantees such as freedom of conscience, the press, and the guarantee of juries in civil cases. [137]
Equally important, the demands that grew directly from fears about the militia provisions of Article I were embodied in proposed amendments to the Constitution, and these proposed amendments were never adopted. [138] The Virginia experience is most representative, as that is where the debate over the militia provisions was most fully developed. [139] The committee appointed by the state's ratifying convention to draft proposed amendments presented the convention with two distinct sets of amendments--one of which was called a "Declaration or Bill of Rights," following the tradition of establishing a separate document to state principles and to declare the rights retained by the people, and the other of which was referred to simply as "Amendments to the body of the Constitution." [140] The Virginia state proposal that both refers to the militia and that guarantees the people the "right to keep and bear arms" is included within this proposed bill [Page 827] of rights. On the other hand, an amendment proposed for the body of the Constitution granted to each state "the power to provide for organizing, arming and disciplining it's [sic] own Militia, whensoever Congress shall omit or neglect to provide for the same," and specified particular limits on Congress's power over members of the state militias. [141]
When James Madison, the principal author of the Bill of Rights, drafted his proposed amendments, he drew upon the language Virginia proposed for a "Bill of Rights" and simply ignored the more specific militia-related amendments it had advocated. Within his proposed framework of inserting the amendments into the body of the Constitution, Madison proposed to insert his "Second Amendment" language in Article I, Section 9, in the middle of various guarantees on behalf of traditional claims of individual rights. [142] Not perceiving himself as reallocating authority from the nation to the states, or as redefining the basic terms of congressional regulatory authority, Madison did not propose to insert any modifying language into Article I, Section 8. [143] When more specific militia-related proposals were offered during the deliberations in Congress, they were rejected. [Page 828] [ FN144] Despite modern claims to the contrary, the Amendment does not by its terms guarantee that a militia will be maintained or that the national government holds a duty to maintain the universal, or general, state militias as they existed in 1787. [145]
Beyond the relevant texts, the general history lends support to the conclusion that the Second Amendment was not drafted to restore power to the states or to recast Congress's militia powers. To begin with, the debate over the militia provisions in the Constitution involved important substantive disagreement as to the powers that could safely be entrusted to Congress. The Federalists not only defended the power given to Congress to control the militias, but contended that national power to effectively utilize the states' militias was itself an important device for avoiding the necessity of a large standing army in peacetime--something many at all ends of the political spectrum appeared to prefer. [146] While the Federalists would not have conceded that Congress's powers would extend to disarming the American people as Antifederalists feared [147]--they were ultimately [Page 829] willing to reaffirm the basic right to arms--but they would not have agreed to an amendment that they perceived as modifying Congress's authority over the state militias in any significant way, and the Second Amendment by its terms does not purport to give authority over the militias back to the states. [148] What it does purport to do is to reaffirm the value of militias and to secure to "the people" their right to "keep and bear arms," paralleling closely the state constitutional guarantees that had been designed to secure what Americans viewed as among the fundamental rights they had held as Englishmen.
2. The Relevance of the Omission of a Bill of Rights
As suggested above, it was not the debate over Congress's militia powers that led to the adoption of the Second Amendment. Rather, [Page 830] as with the other individual rights guarantees included in the first eight amendments to the Constitution, the Second Amendment stemmed from a general fear that the national government was empowered by the Constitution to invade well-established rights of importance to the people. Advocates of the states' rights reading of the Second Amendment focus their attention on the Virginia Ratifying Convention's debate over the militia provisions of Article I. [149] But the debate in Virginia with the clearest connection to the amendments drafted by James Madison was the one concerning the necessity and propriety of setting forth a comprehensive statement of the people's rights in a bill of rights. The Antifederalists agreed with Patrick Henry that a bill of rights was critical because "all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from the delegated powers." [150] Relying on this logic, Antifederalists concluded that all of the people's fundamental rights, except the small number already set forth in the Constitution's text, would be forfeited to the federal government unless a bill of rights was added to the Constitution.
Federalists, on the other hand, argued that the Antifederalist logic requiring a comprehensive bill of rights was applicable only to the constitutions of the states because the state legislatures held general legislative power from which any right must be carved as an exception. [151] By contrast, they argued, the national legislature created by the Constitution had been granted only enumerated powers and did not possess, as an original matter, the power to invade fundamental rights such as freedom of speech and freedom of the press. [152] One reason this debate was virtually unresolvable was that the [Page 831] disagreement turned not only on differences in general theory, but also on differing assessments as to the probable scope of the powers actually granted to the national government. [153]
There was only one way that the Virginia Convention could reach consensus on the bill of rights issue--to agree to propose amendments to the Constitution without purporting to determine in any given case whether the guarantee stated an essential limit on the powers delegated by the Constitution or was merely a cautionary provision designed to reassure those concerned about the potential reach of national power. [154] This essentially "agnostic" stance as to the necessity of including apparent exceptions to federal power enabled all parties to agree to recommending amendments, while at the same time answering a Federalist objection that the inclusion of nonessential "[Page 832] limiting" clauses might create an inference of more expansive national powers than actually intended by the Constitution. [155] Once the parties resolved their disagreement about the necessity of setting forth the fundamental rights of the people, consensus on a number of basic rights would be the key to reaching agreement in the process of amending the Constitution.
If anything is clear in the process by which the Bill of Rights was adopted, it is that the Federalists in Congress were opposed to fundamental structural changes, but "were willing to accept amendments which protected individual liberty and minority rights or explicitly reaffirmed limitations on the national government that the federalists believed were already in the Constitution of 1787." [156] Faithful to these Federalist commitments, Madison went to lengths to ensure, as he explained in correspondence, that "[t] he structure & stamina of the Govt. are as little touched as possible," and that proposed amendments would be limited to those "which are important in the eyes of many and can be objectionable in those of none." [157] In practice, this meant that Madison chose from among the state proposals the amendments that would "serve the double purpose of satisfying the minds of well meaning opponents [of the Constitution], and of providing additional guards in favour of liberty." [158] [Page 833]
Paul Finkelman has described in some detail the pattern by which Madison and his Federalist counterparts in Congress systematically supported well-established individual rights guarantees while rejecting proposed amendments that "'sounded in structure"' and were viewed as posing a threat to the powers established by the Constitution. [159] Among his examples of structural amendments rejected by the Federalists were those that "would have truly crippled the nation's ability to conduct a military policy"--the amendments staunchly supported by Antifederalists opposing standing armies and preventing "the federal government from interfering with the state militias." [160] Finkelman contrasts this conflict over structural limits on military powers with the guarantees now contained in the Second Amendment-- guarantees accepted by Federalists and Antifederalists alike because they were viewed as protective of fundamental rights rather than as altering the structure of authority established by the Constitution. [161] The clauses of the Second Amendment, recognizing the importance of militias and preserving the people's right to arms, fit nicely within the framework of proposing well- established fundamental rights. [162] The limitations proposed as a result of Antifederalist fears of Congress's militia powers, on the other hand, fell into the group of amendments that Madison did not propose, and would not have proposed, and which his allies in Congress defeated. While these conclusions hardly establish that the Second Amendment includes a right to have private arms, they do suggest that the defect in the law to which the Second Amendment was addressed was simply the omission of these fundamental rights from the Constitution as originally adopted. To understand what was at stake in the adoption of the Second Amendment, it is thus essential to determine the role its two clauses played in the state constitutions of the early American republic. [Page 834] It is these topics that the following subsections address.
3. "The Right to Keep and Bear Arms" That Was at Risk Under the Unamended Constitution
As noted above, the right to arms had been expressly secured within the texts of several state constitutions. [163] But despite claims to the contrary, [164] the key to understanding this right, and the state and federal constitutional provisions securing it, is found in the American heritage of English rights and the revolutionary-era commitment to natural rights. It is critical, for example, to understand that the prototype state constitutional guarantees of the right to arms were adopted in the wake of British incursions on the right to arms that the colonists viewed as both a legal and a natural right, as well as an important symbol of freedom--it was a topic, in short, that went to the very center of their revolutionary struggle. [165]
a. The Right to Arms Held by the American Colonists
There is a long-standing tradition of associating the right to keep and bear arms with the analogous guarantee of the English Bill of Rights. [166] The tradition seems well-grounded, given that the American colonists continually invoked their English constitutional rights during the revolutionary struggle, and the right to posses firearms was among the rights invoked. In 1769, the Boston Evening Post, a newspaper with a wide circulation, defended a general call to arms by asserting that "the privilege of possessing arms is expressly recognized by the Bill of Rights." [167] A subsequent article asserted that "'[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their defence."' [168] On the very eve of revolution, North Carolina representatives to the Continental Congress Richard Caswell, William Hooper, and Joseph Hewes wrote to local "committees of safety" urging the people of North Carolina to prepare for resistance and to form themselves into a militia based upon "'the Right of every English subject to be prepared with Weapons for his Defense."' [169]
It is noteworthy that these examples of revolutionary-era statements asserting the right to arms are stated three different ways--in two instances the right is said to be held by "every English subject" and by "the people" respectively, and, in the third instance, "the privilege of possessing" arms is merely asserted to exist, without clarifying precisely who holds the right. These forms of expression reflect that the right was viewed as both a collective and an individual right, and that this way of conceiving the right was itself part of the English heritage. [170] In fact, the English guarantee, which states that "'[s]ubjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law,"' [171] is framed as a [Page 836] grant of right to an entire class of citizens (not expressly to individuals); yet it was understood in both England and America as permitting each and every Protestant "to have Arms" for the defense of self and community. [172]
The guarantee of arms in the English Bill of Rights grew directly from wholesale attempts to disarm large numbers of citizens by both Charles II and James II. Of most significance was James's efforts to disarm Protestant subjects in an effort to strengthen the Crown and the hand of Catholicism in England. [173] James both strengthened his standing army and reorganized militia forces so that they would serve the Crown's interests more loyally. [174] With the military secured, the Crown used the militia to embark on a massive program of disarming potentially disloyal Protestants by a variety of legal schemes and rationales. [175] When the Convention of Parliament met in 1689 and drafted the Bill of Rights as part of the settlement, whereby William and Mary ascended to the Throne, one of the items on the agenda was to affirm the right of Protestant citizenry to have arms as a check against arbitrary power. [176] The final form of the guarantee promised that "'the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law."' [177]
Advocates of a militia-only reading of the Second Amendment have placed the right to arms guarantee of the English constitution in the context of the closely-related opposition to standing armies and the classical preference for citizen militias. Accordingly, they contend that the language of the provision does not refer to an "individual right" to have arms; instead, they read the provision as though it included the sort of limiting language that they take the Militia Clause of the Second Amendment to be. [178] These arguments are [Page 837] based on a misreading of the history and a misplaced logic in explicating the text. [179]
In her careful treatment, historian Joyce Malcolm observes that the English right to arms was not about securing militias. Rather, it grew in part from the use of the King's militia to confiscate firearms from Protestant citizens as a means of preventing popular resistance to royal prerogatives. [180]
The guarantee was thus intended as a right of all Protestants, not merely those who belonged to the militia. The drafting history, moreover, lends additional force to the conclusion that the guarantee was intended to secure an individual right. As originally drafted, the guarantee was stated as an expansive right of Protestants to "'provide and keep Arms for their common Defence,"' with the apparent implication of a collective right of the citizenry to act in concert to gather arms for collective resistance. [181] As the guarantee was revised during the process of negotiation, it evolved into a somewhat less threatening, precisely because more individualistic, right of all Protestants to "have" arms for "their Defence." [182] Malcolm concludes that these language changes "seem to have marked a final shift away from private ownership of arms as a political duty and toward a right to have arms for individual defense." [183] In short, the issue that caused some difficulty during the process of consideration was not whether individuals would have the right to hold arms--this was a given--but the extent to which the wording should convey the idea of a collective citizenry empowered to organize themselves for armed resistance.
Some have argued that the lack of evidence that people were concerned [Page 838] with purely personal self-defense confirms that the English guarantee was related to militia service rather than to a purely private interest in arms. [184] As observed above in analyzing the text of the Second Amendment, [185] to a large extent the point seems irrelevant inasmuch as the guarantee of a private right to have arms, even when not engaged in formal militia service, would contribute to collective security interests as well as the maintenance of an effective militia system. [186] The claim that a concern for issues of personal defense was not evident is also question-begging, because the text's guarantee of a right to have arms to Protestants for "their defence" reads quite naturally to include private as well as collective defense--especially considering that the word "common" was eliminated in the final text of the provision. [187] Moreover, concern about the threat posed to personal security in being forcibly disarmed seems implicit in [Page 839] the statements of members of the Revolutionary Convention as to their grievance associated with the right to arms. [188] Equally important, however, is that the demand for specific references to a purpose to secure the right of private self-defense, or of any other particular use of arms, involves the fallacy of what Lon Fuller called "the pointer theory of meaning." [189] According to this view, the way to determine whether the right of citizens to have arms for "their defence" included purely private self-defense is to discover whether the adopters of the provision held a picture in their mind of an individual defending himself or his family against a robber or burglar. On the other hand, if the pre-adoption discussion of the right focused on collective security, including the dangers of oppression or invasion, it is supposed that the "defence" for which arms were secured was limited to these immediate objects of concern. [190] But the meaning of words is more general than assumed by this sort of thinking, and interpreters should seek the intended general meaning of a legal text they are to construe. [191] There is nothing in the historical context of the English guarantee to suggest that private self-defense is so far removed from the collective security concerns naturally raised by mass disarming programs, or that a right to use arms in private self-defense would have been viewed as so unacceptable, that the relevant legislative [Page 840] audience would have tacitly assumed that the guarantee would not extend beyond the needs of common defense. [192]
In fact, the subsequent history points in the opposite direction. During the course of the eighteenth century, the right of English subjects to own and use firearms for all lawful purposes became well established. During the American founding period, the recorder of London, the city's legal advisor, stated in a legal opinion that it was "'clear and undeniable"' that the Protestants' right to "'have arms for their own defence"' included the right "'to use them for lawful purposes."' [193] The Recorder emphasized that this right was related to the duty of "'all the subjects of the realm, who are able to bear arms . . . to be ready, at all times, to assist the sheriff, and other civil magistrates, in the execution of the laws and the preservation of public peace."' [194] Taking it as virtually a given that the right to arms is possessed "'individually,"' the recorder concluded that the right "'may, and in many cases, must, be exercised collectively,"' and that this was also established by relevant legal authority. [195] Whatever the intentions of those involved in the settlement of 1689, the historical evidence supports the view that the American colonists believed that they had a right as Englishmen to have arms for purposes of private self-defense. [196] The most pervasive influence on their thinking as to scope of the English right was almost certainly Blackstone's widely-read Commentaries on the Laws of England. [197] According to Blackstone, [Page 841] the Bill of Rights guarantee was among the "auxiliary subordinate rights" that serve "to protect and maintain inviolate the three great and primary rights of personal security, personal liberty, and private property." [198] Accordingly, the Bill of Rights guaranteed to the subjects of England "the right of having and using arms for self-preservation and defence." [199]
b. The Right to Arms in the Early American Republic
There is every reason to think that the colonial understanding of the natural and English right to have arms for private and collective defense carried over to the state constitutions that explicitly recognized the right to arms. The first American constitutions were adopted in the wake of the decision to declare independence, and the Americans' [Page 842] recent experiences with British confiscation of arms gave them every reason to value the right as it had come to be understood. [200] But their commitment to the right to arms went beyond English legal tradition and included the right as derived from the natural right of self-defense. [201] As the conflict heightened, Parliament revoked colonial charters under which the colonists had claimed the rights of Englishmen, and reliance on English rights became more and more difficult. While the Americans contended that these grants of rights to them as Englishmen were irrevocable, they also invoked the doctrine of natural rights that "common law might propound but did not create and could not revoke." [202]
During the early years of the republic, four states included explicit right to arms guarantees in their declarations of rights, [203] while four state constitutions contained an explicit provision stating the commitment to the citizen militia as the best form of defense. [204] Pennsylvania's 1776 Declaration of Rights included the first provision guaranteeing a popular right to arms, and its language established the pattern for the analogous guarantees subsequently included in other state constitutions. [205] The Pennsylvania guarantee stated: "That the people have a right to bear arms for the defence of themselves and the state." [206] The similarity of this guarantee to the English Bill of Rights provision is clear and striking.
[207] The provision is in some respects obviously broader than its English counterpart: it substitutes "the people" for "subjects which are Protestants," consistent with America's commitment to broad-based popular rights, and eliminates the language that arguably limits only the executive branch. Perhaps most important for interpretive purposes, the Pennsylvania provision tracks the English guarantee's indication that the people's arms were for "their defence" by stating that the arms would be for "defense of themselves." [208] In addition, the Pennsylvania provision is clearer than its English counterpart that the goal of defense against external threat ("the defense of . . . the state") is also an end for which the people have a right to be armed. [209]
Considering that the American colonists had staked their claim that every citizen held a right to arms on the English guarantee of arms to "subjects which are Protestants," a reasonable inference is that the Pennsylvania provision's reference to the people's right to arms was also understood to convey a right to every citizen. Despite this history, proponents of a militia-only understanding of the right have claimed that the collective reference to the right-holder ("the people") lends support to their position. [210] It has also been contended that [Page 844] a purely collective right lodged in the militia is properly inferred because of the contrasting language of personal right guarantees; in the state constitutions, we are told, "the expression 'man' or 'person' is used to describe individual rights such as freedom of conscience." [211] But there is no uniform pattern in the early state constitutions in stating rights guarantees; purely individual rights are often stated as the rights of "the people." [212]
Perhaps more importantly, rights that are linked closely to the principle of popular sovereignty, and that would be held or exercised collectively as well as individually, are generally stated as rights of "the people." [213] The North Carolina declaration is especially instructive: [Page 845] after stating a series of procedural guarantees as being held by "every man," or indicating what "no freeman" may be subjected to, the declaration states guarantees in favor of "the people" (or, in one case, "all men") relating to civil jury, taxation without consent, bearing arms, petition and assemblage, and freedom of religion. [214] The right to arms was closely linked with the idea of popular sovereignty in many minds, as reflected in the quoted dictum that "[t]he supreme power in every country is possest by those who have arms in their hands." [215]
Advocates of a purely collective reading of the Pennsylvania right to bear arms also observe that the right is combined with an injunction against standing armies and a provision for civil authority over the military. [216] This general theme that the right to arms fits within a general framework uniquely relating to the military is thought to be further reinforced by the couching of the right as a right to "bear" arms, with its apparently military connotation. [217] The problem with these arguments is that no one denies that the right of the citizenry to be armed involves, at least in part, a collective interest in preserving a militia as an alternative to a liberty-endangering standing army, and that this theme would also link up with the principle of civilian control over the military. Pennsylvanians undoubtedly wished to preserve their collective right to arms both to facilitate a security-enhancing militia and as a continuing check against arbitrary power. But the association of the right to arms with collective defense issues does not tell us that it has no connection to the [Page 846] individual right to self-defense or that the right vests only in the sovereign people as a whole. [218] The American colonists, after all, had tracked Blackstone in identifying the English right to arms as growing out of a natural right to self-defense that was equally the foundation of the collective citizenry's right to arm themselves to defend their liberties. [219]
If the Pennsylvania provision's text itself leaves room for doubt, despite its obvious connection to the English right invoked by Americans generally, those doubts should be resolved by the history related to the federal Bill of Rights. The "constitutionalists" who brought the Pennsylvania Constitution into being, and then defended it for more than a decade, were by and large the same people who are known to us as the Antifederalists who opposed the federal
Constitution. [220] One of their members, Robert Whitehill, relied upon the omission of a bill of rights as a ground for opposing the Constitution and presented a proposed bill of rights to the Pennsylvania Ratifying Convention on December 12, 1787. [221] Whitehill's proposed bill of rights was subsequently incorporated into the minority report of the Convention, which was signed by Antifederalists who had played prominent roles in adopting and defending the Pennsylvania Constitution. [222] This Antifederalist bill of rights includes the following provision guaranteeing the right to arms:
That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the[Page 847] 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; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and be governed by the civil powers. [223]
This Pennsylvania minority proposal not only confirms what would have been the general understanding of the Pennsylvania right to arms provision, but also undercuts completely the idea that the connection between the right to arms and military issues stands as a barrier to the individual rights understanding of the right to bear arms. This provision uses the term "bear" to describe carrying weapons for a variety of purposes, including collective and self- defense as well as hunting, and specifically prohibits laws that would disarm "the people or any of them" unless for compelling reasons. [224] Equally important, this indisputably individual rights guarantee is included along with the standard provisions condemning standing armies and providing for civilian control of the military. [225] Finally, the guarantee immediately before the right to arms in the minority proposed bill of rights guarantees the freedom of speech and press to "the people." [226]
The right to arms provision next adopted, North Carolina's, provided that "the people have a right to bear arms, for the defence of the state." [227] As with the Pennsylvania provision, this guarantee tracks the English Bill of Rights guarantee in granting the right to "the people"; language suggesting a private right to arms. This reading receives strong confirmation as well from the invocation of a private [Page 848] right to arms during the revolutionary struggle in North Carolina. [228] While some have attempted to read an exclusively militia-based right from the language indicating that this was a right to bear arms "for the defense of the state," [229] the provision's focus on collective defense is hardly surprising given that it was the right to have arms for the purpose of resisting English tyranny imposed on the people of North Carolina that had been immediately under threat, and it was this collective right of self-defense that had been the target of disarmament schemes historically. [230] While it is difficult to build a case that this provision itself specifically guaranteed arms for private self-defense, given the limited scope of its language, [231] it seems [Page 849] likely that its framers would have perceived that the lawful use of arms possessed by right, including the exercise of the long-established and unquestioned right of self-defense, would follow as a logical legal consequence of the constitutional guarantee. [232]
It is equally unlikely that the wording of this North Carolina guarantee reflected any reservations about, let alone hostility to, the idea of a right of self-defense or of a private right to arms to serve as a defense against tyranny. Both the collective right of resistance that warranted the right to arms and the personal right of self-defense had been relied upon by North Carolina's revolutionaries, [233] and there is no evidence to suggest that either of these ideas had come to be questioned. [234] To the extent that the language of the North Carolina provision [Page 850] can lend itself to a restrictive construction of the right to arms, it might be argued that the drafting simply fell short of directly guaranteeing the private right to arms for purposes of self-defense that many Americans of that era would have taken for granted. [235]
The last version of a right to arms provision was drafted by John Adams and adopted by Massachusetts in 1780. [236] Adams substituted the phrase "keep and bear arms" in the place of the right to "bear" arms, thus clarifying more fully that the right included ownership and possession as well as the right to carry the arms. The word "keep" fits nicely into the English Bill of Rights tradition recognizing the right to "have" weapons, and it further clarifies that the right to arms was intended as a personal right that was not limited to access to weapons during actual militia service. [237] The Massachusetts provision further provided that the right was held "for the common defense," language that again raises the issue whether a purely collective interest, rather than a personal right, was intended. But the same considerations that argue for a personal right, based on the continuity of American thought about the right to arms as an English right and in [Page 851] light of the revolutionary experience, apply with equal force to the Massachusetts provision.
The historical context of the Massachusetts provision, moreover, appears to shed further light on the real import of the language focusing on collective defense as the purpose for a right to keep and bear arms. First, it is virtually impossible to argue that the Massachusetts provision was drafted to avoid any inference that the right to keep and bear arms would reinforce the common-law right to use arms in self-defense. For one thing, the historical record is clear that Adams was a strong defender of both the common-law right of self-defense and, equally important, of the right to possess weapons to that end. [238] Moreover, Article I of the Massachusetts Declaration of Rights listed among the inalienable rights of the people the right of "defending their lives and liberties" and "protecting property." [239] Perhaps most important, the historical record suggests a more compelling concern that may have prompted Adams's choice of language. The focus on collective defense may well have reflected Adams's bias against any right to use arms collectively for the purely private purposes of groups within society. On the eve of the Philadelphia Convention, Adams wrote his famous work defending American constitutions, and there he stated the view that guns should not be used according to "individual discretion, except in private self- defense," because it would "demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man." [240] While every individual [Page 852] held a right to own firearms, both for private self- defense and for service in the militia in defense of the community, there was no fundamental right to create private armies to serve private ends. [241] Adams's decision to emphasize collective defense, then, in all likelihood reflected the dilemma of drafting a provision that guarantees a collective, as well as a personal, right; Adams appears to have preferred to carefully define the purpose and scope of the collective dimension of the right, while assuming that Article I would defeat any tendency to read the provision as precluding the right of individuals to possess arms with which to defend themselves.
4. The Significance of the Absence of a Provision Declaring the Necessity of a
"Well Regulated Militia"
The newly-proposed United States Constitution not only omitted the right to keep and bear arms, but also the declarations contained in several state constitutions stating a preference for citizen militias. [242] As reflected in the text of the Second Amendment, the right to keep and bear arms is closely related to the preference for a citizen militia as a primary tool of defense. Without question, a central reason for assuring an armed citizenry was to facilitate a citizen-based system of defense. Following the lead of political thinkers through the centuries, the founders generally agreed that only a citizen militia "could protect liberty against domestic turmoil and tyrannical [Page 853] intrigue." [243] Thus the state constitutions' stated preference for a militia-based system of defense went hand-in-glove with opposition to a standing army, the inevitable device of tyrants bent on imposing arbitrary will on the people. [244]
Considering that the states' declarations of rights were evenly split between provisions guaranteeing the people the right to arms and provisions stating the long-standing republican preference for citizen militias, those who assert that the Second Amendment does not secure a right to private arms conclude that the "militia" and "arms" provisions both secured the sovereign people's interest in a militia-based defense system by different formulations that had substantially the same meaning. [245] But even if the basic point is accurate at some level of generality--that these somewhat different formulations were directed to the same basic ends--it would not follow that the "sovereign people" as a collective entity is the exclusive beneficiary of the promise stated in the right to arms guarantees. The two clauses have common premises--that an armed citizenry is a critical safeguard [Page 854] of liberty and that "the ultimate 'checking value' in a republican polity is the ability of an armed populace, preemptively motivated by a shared commitment to the common good, to resist governmental tyranny." [246]
This is the real significance of the critical phrase in the Virginia militia declaration defining the militia as "composed of the body of the people, trained to arms." [247] The Federal Farmer, perhaps the most forceful and articulate of all the Constitution's critics, wrote during the ratification debate that "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike . . . how to use them." [248] The militia provisions thus contemplated a continuation of the universal militia system comprised of essentially all able-bodied adult males; they assumed the existence of an [Page 855] armed citizenry. And this is why Madison and others went to some lengths to reassure the people that the proposed Constitution simply did not empower the national government to disarm the people or to undermine the citizen-based defense systems already existing in the states. [249] Because Madison's argument that the people's checking power would be alive and well under the Constitution has been the subject of serious controversy, it is important that we examine it closely.
In Federalist No. 46, Madison assumes the task of explaining why the states need not fear domination by the national government established by the Constitution. Consider this excerpt:
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprizes of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone, they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will, and direct the national force; and of officers appointed out of the militia, by these governments and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned, in spite of the legions which surround it. [250]
Advocates of a militia-centered reading of the Second Amendment criticize the focus on Madison's emphasis of the important checking function of an armed people, [251] insisting that Madison was referring to the state militias and that the crux of his argument was that the states would serve as a critical intermediate body capable of organizing forces of resistance to any attempt to impose despotic government. [252] But their argument goes too far. [Page 856]
It is undeniable that Madison's treatment contemplates a well- organized resistance by functioning militias, and that he sees the states as playing a critical role as independent centers of power; but it is equally true that Madison describes the militia system as premised on the idea of trusting ordinary citizens with the private right to possess firearms. [253] Throughout his analysis, Madison clearly refers to the role of both the states and the people, though their roles are obviously intertwined. [254] Madison begins his analysis by chiding the Constitution's critics for focusing almost exclusively on the nation and the states, observing that they "have lost sight of the people altogether in their reasonings on the subject." [255] In summarizing his argument, moreover, Madison assures the states that they will easily defeat an overreaching national government because it "will not possess the confidence of the people," with the implication that the states "will be supported by the people." [256]
While both the "militia" and "arms" provisions can, in a broad sense, [Page 857] be read as alternative ways of stating this general intention to preserve a militia system that presumed the existence of a citizenry holding a right to arms, there are good reasons to distinguish the militia and arms guarantees of the state constitutions--reasons that become more important in 1788 (when Virginia drafted its proposed amendment combining the two) than they may have been in the period around 1776. [257] Comparing the texts alone, it is noteworthy that the arms provisions are stated as rights guarantees in favor of the people; by contrast, the militia provisions are not framed as rights guarantees as such, but rather as declarations of a preference for militias (implicitly by contrast to standing armies). [258] This was not unusual-- the state declarations of rights commonly included provisions stating shared principles of government, but which were quite clearly not intended as limiting provisions. [259] The militia provisions limit state legislative authority, if at all, only to the extent that they are read together with provisions limiting the power of the legislature to create a standing army. The arms guarantees, on the other hand, seem clearly intended to limit state legislative authority, at least in some important sense, even though there is room for debate whether the state declarations in general were intended to state legally enforceable limiting provisions. [260]
These differences in the form and structure of these provisions comport with differences in their substantive content. The militia preference provisions presuppose an armed citizenry (and the continuation [Page 858] of the common-law right to arms) to lend support to the militia system of collective defense, but they do not constitutionally guarantee any right to arms. Their textual emphasis is unequivocally on the militia. The arms guarantees, on the other hand, may assume the continuing existence of the militia, but they do not in any sense require states to create or continue to fund or support such an institution. [261] Moreover, there are good reasons to think that the state arms provisions reflect the heritage of the English Bill of Rights guarantee of a private right to arms. [262] No doubt the adopters of both the militia and arms provisions believed that the militia system would continue, and that the law would continue to permit private firearms ownership, both to support the militia and in support of the right of self-defense; but the same assumption was almost certainly made in the several states that did not even adopt a declaration of rights, let alone a militia or arms constitutional provision. It should come as no surprise, then, that the drafters of proposed amendments to the federal Constitution saw the value of combining the militia and arms provisions to form a single amendment that would speak both to the institutional question of militias as well as to the right of the people (including each individual citizen) to arms.
B. The "Remedy" Embodied in the Second Amendment
If the defect to be remedied was the omission of well-known fundamental rights from the Constitution, the basic remedy was to amend the Constitution to incorporate the most fundamental rights, as found in the states' constitutions and declarations of rights. A number of the basic freedoms of greatest concern were also put together into sets of proposed amendments offered by critics of the Constitution and on occasion adopted by the state ratifying conventions. As to the right to arms, the first proposed amendment of relevance, guaranteeing a private right of arms for a variety of purposes, was the one proposed by the minority report of the Pennsylvania Ratifying Convention. [263] While this proposal was not officially [Page 859] adopted by the Convention which ratified the Constitution without offering amendments, the minority report was adopted by an impressive group of the Constitution's critics, and was widely published. [264] It was proposed, moreover, within the state that supplied the initial model of a right to arms guarantee, [265] and parties looking to include an arms guarantee amendment would have been aware that this minority proposal was an attempted elaboration of the assumptions underlying the original provision. [266] Given these considerations, it seems highly probable that if those drafting and adopting the Second Amendment had opposed a right to private arms, they would have chosen language, perhaps limited only to the militia declaration, to avoid the implication that these Pennsylvanians obviously drew from their own right to arms guarantee.
At least two other proposed amendments also unequivocally guaranteed a right to private arms. One such proposal, drafted by Samuel Adams and proposed at the Massachusetts Ratifying Convention, provided in pertinent part: "[T]hat the said Constitution never be construed to authorize Congress . . . to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." [267] Adams's proposal is obviously similar to the state constitutional arms provisions, with its guarantee running in favor of "the people" and its tracking of Massachusetts's own specification of the right to "keep" arms. But it also strikingly clarifies that the right to keep arms entails the right of the people to keep "their own" arms. [268]
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An equally explicit guarantee of a right to have private arms is the amendment proposed by the New Hampshire Ratifying Convention. It provided: "Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion." [269] Read together, these proposed amendments fit the pattern revealed in the revolutionary-era statements invoking the right to arms; [270] the right might be said to run in favor of "the people," or in favor of individual citizens, but in each case the guarantee contemplates a right that equally serves public ends of collective defense, by ensuring an armed citizenry capable of militia service, and private ends of self-defense and other lawful and appropriate uses of firearms.
1. The Virginia Proposal
The actual drafting history of the Second Amendment effectively begins in the Virginia Ratifying Convention. The committee, which included Madison, combined into a single proposed amendment protections relating to arms, militias, standing armies, and civil control of the military. The arms and militia protections read as follows: "That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State." [271] Perhaps the most telling feature of Virginia's proposed amendment is that it includes the "arms" and "militia" provisions of the state constitutions for the first time--the pattern that would be adopted in the Second Amendment. That both are included in a larger constitutional provision is suggestive that the two sorts of provisions were not considered to be functionally identical or completely overlapping. [272] It is also significant that they are included here as independent clauses, with the apparent implication that they are viewed as separable rather than as integrated parts of a single whole, a conclusion that is reinforced by their inclusion with two other protections that are also separated by semi-colons. [273] Finally, the people's right "to keep and [Page 861] bear arms" is the first protection listed, which further suggests that it does not hold a dependent or subordinate status among the enumerated protections. [274]
As to the arms guarantee itself, given the proposals advanced elsewhere in the country that so clearly reflected the understanding that the right extended to privately held arms, what stands out in the Virginia proposal is that the wording is general and unqualified. Given that Virginia's proposed arms amendment does not even state any purposes for which the right to arms is guaranteed, as in the North Carolina [275] and Massachusetts [276] declarations of rights, it can easily be read consistently with the Pennsylvania minority's proposed guarantee that extended to collective and self-defense as well as to hunting. Had Virginia's purpose been to limit the right to arms to militia service, as many modern commentators suggest, we would expect the committee to have carefully constructed the language so as to reject the private right to arms understanding that is so clearly reflected in the proffered alternatives; instead, they chose language that lent itself to the broadest construction.
Some have drawn the conflicting inference that because the Virginia proposal, and eventually the Second Amendment, did not adopt the language of the most broadly worded guarantees, and in particular the one expressly protecting the right to have guns for self-defense and hunting, they intended to reject the broad understandings of the right to arms stated in those proposals. [277] But these arguments presume both that the broadly worded state proposals were radical and novel proposals to expand the right to arms beyond its prior, narrow confines of assuring citizen participation in a militia, and that the parties to the process of amending the Constitution would all have understood that. In fact, however, the notion that the right to arms was limited to militia service is not supported unequivocally by any text or contemporaneous statement that we have seen, [278] while statements lending strong support to the idea of a right to private arms pervade the period from the American Revolution to the adoption of the Bill of Rights. [279] At the very least the Virginia committee would have known that the broadly worded state proposals were not intended as radical innovations, but as restatements of a familiar right. They, therefore, would have known that it was incumbent on themselves to clarify the matter in favor of a narrowly-circumscribed right had that been their intention.
The better key to understanding the differences among these various proposed texts is to recognize that the Virginians and eventually Madison appreciated that their purpose was to include amendments embodying rights that were already familiar to the American people. For good or ill, viewed from the perspective of modern Americans, their tendency was to restate these rights in relatively general language and to avoid getting bogged down in adding, clarifying, and qualifying language. [280] This tendency was no doubt reinforced by the fact that their central purpose was to clarify the absence [Page 863] of federal authority to invade these rights rather than to develop their nuances or to resolve potentially varying understandings. [281]
2. Madison's Proposed "Second Amendment"
In June of 1789, Madison presented his proposed bill of rights to Congress, which included the following language: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country." [282] Madison's proposal serves as a bridge between the amendment proposed by Virginia and the final language of the Second Amendment; while it does not place the Militia Clause as an introductory clause, in the manner of the final text, it does appear to link the two clauses more closely together than does the Virginia guarantee. Madison's Militia Clause reads as an explanation of the people's right to arms and, some might contend, by analogy to arguments based on the text of the Second Amendment, even as a qualifying or limiting statement of the scope or purpose of the right to arms guarantee. But a closer examination of the wording of the two clauses, in the light of what we know of Madison's goals in drafting the Bill of Rights, suggests an explanation for Madison's choice of language that confirms the centrality of the popular right to private arms and the role of the Militia Clause as a general restatement of the centuries-old philosophy in favor of citizen militias.
The critical thing to notice in Madison's arms clause is that its force as a rights guarantee is greatly strengthened as compared to its predecessors; Madison's guarantee does not merely state the existence of the right in question, but specifically provides that the right "shall not be infringed." [283] This is no small matter. Leading scholars on the Bill of Rights have credited Madison with completing the transition from "declarations" of rights, not necessarily intended as enforceable limitations on government, to a "bill" of rights that was drafted in the hard language of legal command in the anticipation of judicial [Page 864] review. [284] Speaking before Congress, moreover, Madison justified the need to include provisions constituting a bill of rights partly on the ground that courts would become the guardians of the people's rights "[i]f they are incorporated into the constitution," [285] and this rationale was the apparent fruit of Madison's ongoing dialogue with Thomas Jefferson about the possible advantages of adding a bill of rights to the Constitution. [286]
Consequently, whether its provisions are drafted as prohibitions on the exercise of certain powers or in the form of rights, guarantees, or immunities, Madison's Bill of Rights stays away from broad and unenforceable statements of principle that often characterized the states' declarations of rights.
[287] When he did choose to include statements of a few basic first principles based on language in the state declarations of rights, he proposed to insert the language into the preamble of the Constitution--a reflection that he perceived that such general statements did not belong in the body of the Constitution because they were not legal provisions, but statements of shared principles that describe the presuppositions of our constitutional order. [288] [Page 865]
Madison's decision to strengthen the constitutional provisions defending liberties and limiting government almost certainly impacted on the drafting of what would become the Second Amendment. On the one hand, Madison would have recognized that Virginia's proposed militia provision, like the state declaration of rights provisions to similar effect, was a statement of classical republican philosophy about how to preserve political liberty, rather than an enforceable individual rights guarantee. In a sense, it did not fit into Madison's approach to drafting amendments as meaningful limiting provisions. On the other hand, given the widely voiced concerns about the potential threat to the militia system posed by the powers given Congress by the Constitution, Madison would have been reluctant to omit any reassuring provision, and this inclination could only have been strengthened because of his decision, consistent with a strongly held Federalist commitment, to omit any provision limiting Congress's authority to create a standing army. [289] Madison also understood that the people's right to possess and use arms and the continuation of the militia system were closely related concepts, and that a central end of the right to have arms was to maintain a body of people capable of service in a universal militia. Madison's purpose, then, was in no sense to qualify or limit the right to arms embodied in existing and proposed provisions, including the amendment proposed by Virginia; it was, rather, to tie together the "arms" and "militia" provisions, both to underscore that they were closely related and to avoid inclusion of a freestanding declaration of principle that would lack "fit" with the balance of enforceable guarantees included in the Bill of Rights. [290]
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3. Congressional Treatment of the Right to Keep and Bear Arms
By the time the Committee of the Whole in the House of Representatives issued its report, on July 28, 1789, Madison's arms/militia proposal had been inverted so as to place the Militia Clause first, as in the final text of the Second Amendment. [291] The amendment adopted by the House, however, retained the language describing the militia as "composed of the body of the people." [292] In the Senate, this definitional language was omitted and, with other minor language changes, the Amendment took its final form. [293] The only other event of relevance in the deliberative process of Congress is that on September 9, 1789, the Senate rejected a proposal to insert the words "for the common defence" after "bear arms." [294]
As a general proposition, interpreters should be wary of over-reading the significance of mere omissions or of the decisions not to insert additional, possibly clarifying language. In this case, however, when the decision rejecting the inserted language is examined in the larger historical context, it lends additional support to the conclusion that the Amendment's drafters intended a wide-ranging right to arms. This conclusion is powerfully reinforced, as developed above, by the number of ratification-era proposed amendments that had so clearly stated the right to own private arms for lawful purposes; rather than using language that would establish a much more restricted scope for the right to keep and bear arms to be protected by the Constitution, Congress refused to add even relatively muted qualifying language. [295] Moreover, that the Senate made relatively minor language changes that same day, changing the description of the militia as "the best" defense of a free state to "necessary to the" defense, reflects that this refusal to insert limiting language did not come about because the Senate was reluctant to make any changes at this stage in the consideration process. [296] The meaning of the Second Amendment emerges much more clearly from the historical materials relating to the right to arms as it was understood in colonial America [Page 867] through the state constitutions. Those historical materials support the conclusion of Tench Coxe that the Amendment was designed to preserve the right of the people to their private arms. [297]
C. The Post-Ratification Understanding of the Right to Keep and Bear Arms
Interpreters have often consulted post-ratification materials that might shed light on the historical meaning of a statutory or constitutional provision. There are at least two reasons that such materials are taken into consideration. First, post-ratification materials often shed important additional light on the original public meaning of the provision at issue, even if they arguably deserve less weight than pre-adoption evidence. [298] Second, a consensus among the branches of government and the people over many years can be viewed as basically establishing the meaning of a provision, especially in cases where there is room for debate as to the original meaning. [299] The analysis of the right to keep and bear arms by nineteenth- century courts and scholars lends strong support to the idea of a private right to arms under either of these rationales for reliance on such materials.
Perhaps the single most significant commentary on the right to keep and bear arms is found in St. George Tucker's 1803 work, Blackstone's Commentaries with Notes of Reference to the Constitution [Page 868] and Law of the Federal Government. [300] Tucker was an important legal commentator, a contemporary of Madison, and had a brother, Thomas Tudor Tucker, who served in the House of Representatives that proposed the Bill of Rights. [301] As important as any specific statement in Tucker's annotated edition of Blackstone is Tucker's explicit identification of the Second Amendment with the English right to arms as it was described in Blackstone's work. This linkage confirms the continuity in American thought on the private right to arms from the beginnings of the revolutionary period to the end of the founding period (which some place at circa 1805). [302] Blackstone clearly read the English right as including a private right to arms in support of self-defense. Concurring with Blackstone that the "right of self-defence is the first law of nature," Tucker links the need for an arms guarantee to government's tendency to restrict the right of self-defense &quo