Howard Law Journal
34 (1991): 589
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE SECOND AMENDMENT AIN'T ABOUT HUNTING
Thomas M. Moncure, Jr.*
Copyright © 1991 by the Howard University School of Law; Thomas M. Moncure, Jr.
"The Second Amendment ain't about hunting."  The current debate concerning whether a particular gun is better suited for a hunting or sporting purpose completely misses the aim of the second amendment. The second amendment recognized a common law and natural law right, taken for granted as inalienable, to keep and bear arms. Additionally, the second amendment was directed at maintaining an armed citizenry for mutual defense, and perhaps most significantly, to protect against the tyranny of our own government. 
Colonial Americans possessed guns for a variety of purposes, including hunting, personal self-defense and mutual defense against the Indians, the Spanish, the Dutch, and the French. These necessities "put firearms in the hands of nearly everyone."  The only people denied this right, "Mulattoes, Negroes and Indians," were those who also enjoyed less than full benefits of citizenship. 
The tradition of an armed citizenry has long been recognized in England.  As early as 872 A.D., the "Great Fyrd" required both [p.590] nobles and peasants to keep arms that were appropriate to their status.  While the "Great Fyrd" was unsuccessful against the Norman invasion, the Assize of Arms of 1181 retained this tradition by, again, requiring the possession of arms.  The presence of an armed citizenry is credited, in part, for the failure of a feudal system to exist in England. 
Of more immediate interest to the Colonists were events that occurred during the revolutionary period of 17th century England. When the commonwealth government, under Oliver Cromwell, attempted to disarm Catholics, its force was met in kind following the restoration by James II's attempt to build a standing army composed of Catholics.  These abuses led to the adoption of the English Bill of Rights, which guaranteed that "subjects who are Protestants, may have arms for their defense suitable to their condition." 
Sir William Blackstone, the "[g]reat [e]xpositor of the English law,"  noted that common law recognized the three principle rights of the people as "the right of personal security, the right of personal liberty, and the right of private property."  In the redress of private wrongs, the common law acknowledged self defense as the "primary law of nature so it is not, neither can it be, in fact, taken away by the law of society."  These rights were found to be illusory absent arms, so Blackstone described the "right of having arms for self-preservation and defense" as an auxiliary right. 
Two qualifications of the right to keep and bear arms were noted at common law.  The first concerned the suitability of an arm [p.591] to a particular class. The second qualification addressed the carrying of weapons so unusual as to cause a breach of the peace. Mere possession was not sufficient to constitute an offense, since conviction generally required the intent of "riding or going armed" to the terror of the populace. 
The prevalence of arms in colonial America, no less than in England, made the imposition of tyranny a dangerous proposition. In the 17th century, Royal Governor William Berkeley complained it was miserable to attempt to govern "a people where six parts of seaven [sic] at least are [p]oore [sic], [e]ndebted [sic], discontented and armed".  Thus it should be of little surprise that at the Revolution's onset, General Gage, in Massachusetts, and Lord Dunmore, in Virginia, first attempted to seize the colonists' gunpowder and arms.
At the Revolution, states' Bills of Rights typically included provisions which dealt with the militia and the right to bear arms.  Following independence, concern that the consolidated government might usurp individual liberty led the United States to enact the Bill of Rights. Patrick Henry, equating the potential tyranny of Congress to that of the Crown, was convinced that liberty could only be preserved with "downright force."  The prevalence of this opinion is reflected in Thomas Jefferson's famous suggestion that the "tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." 
The second amendment, when presented to the states for ratification, attracted remarkably little attention.  Because it embodied [p.592] fundamental common law and republican principles, the lack of comment was not surprising.  Federalist No. 46, written by James Madison, already addressed "the advantage of being armed, which Americans possess over the people of almost every other nation." His description of the militia showed that he shared the same republican principles of the anti-federalists: "[c] itizens with their arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence."  Madison finally noted that in the "several kingdoms of Europe ... governments are afraid to trust the people with arms." 
The fear of a standing Army underlies the second amendment,  this fear is also reflected in the third amendment.  Senator William MacLay, from Pennsylvania, during the first federal Congress, bemoaned that with a standing army "we must soon forego our republican innocence" and in so doing "set apart a portion of our citizens for the purpose of inflicting [m] isery on our fellow [m]ortals."  In context, it should be noted that two of the amendments proposed by Congress, regarding the size of districts and compensation, were rejected.
The United States Supreme Court had no occasion to review the second amendment prior to the passage of the fourteenth amendment. Prior to the doctrine of selective incorporation, the cases heard in the 19th century are as unillustrative as they are unpleasant. One such case involved an attempt by 100 members of the Ku Klux Klan to disarm two men "of African descent."  Another concerned a worker's parade involving essentially a mini-army.  In these cases the Court held that the second amendment was a ban only to federal [p.593] action and thus not applicable to state action. 
The Court's refusal, in the 19th century, to extend the Bill of Rights protection to state action, even after passage of the fourteenth amendment, came as little surprise. Chief Justice Taney, in the infamous Dred Scott decision, had expressed concern that if free African-Americans were "entitled to the privileges and immunities of citizens," they could "keep and carry arms wherever they went." 
Lack of constitutional protection in the late nineteenth and early twentieth centuries gave rise to gun laws which targeted certain racial and ethnic groups.  Specifically, Jim Crow legislation in the South and the Sullivan Law in New York assured that guns were not available to African- Americans, Italians and other such "undesirables."  These laws sought, as had General Gage and Lond Dunmore, sought to assure the subjugation of a people. 
The only case squarely dealing with the second amendment in this century, United States v. Miller,  has been cited as authority by both sides of the gun issue. This case challenged the National Firearms Act of 1934  which restricted, but did not prohibit, the possession of certain firearms, including machine guns. The Miller Court refused to take judicial notice that a short barreled shotgun, had "some reasonable relationship to the preservation or efficiency of a well regulated militia," and was therefore not protected. 
Does Miller mean that only the Militia may have arms, or that the people may possess only arms suitable to service in the Militia? Professor A.E. Dick Howard found the latter reading a "disconcerting possibility,"  though it was in accord with the intention of the founders. George Mason, asking rhetorically "[w]ho [i]s the [p.594]
[m]ilitia?," responded that the militia is the "whole people."  Mason went on to express the concern that the militia of the future might exclude some of the people from its ranks.
Many civil libertarians, uncomfortable with the private possession of firearms, have found the militia prefatory clause of the second amendment a convenient exculpatory clause. The Supreme Court has not dealt directly with the constitutional militia, as opposed to the National Guard, but there is nothing to indicate that the militia, under second amendment analysis, is anything other than the "whole people." 
In Perpich v. Dep't of Defense,  the Court distinguished the "National Guard," the organized militia of the various states, from the "National Guard of the United States," a reserve component of the Armed Forces of the United States.  In reaching its decision, the Court did not need to explore the nature of the unorganized, or constitutional, militia.  All states and the federal government have enacted provisions dealing with the militia independent of the National [p.595] Guard. 
The greater issue of the second amendment revolved around whether it would be incorporated into the fourteenth amendment and thus be applicable to state action. While incorporation could be avoided by treating the right as collective rather than individual, the greater weight of constitutional interpretation and simple intellectual integrity dictates its incorporation. Chief Justice Rehnquist noted the term "the people" had the same meaning in the
first, second, fourth, ninth and tenth amendments.  Professor Sanford Levinson has also suggested the incongruity of reading "the people" as conveying individual rights in some amendments and as solely a collective right in the second. 
Current provisions regulating "assault weapons" reflect not only a disregard of constitutional history, but fundamental technical ignorance.  A true "assault rifle" is capable of selectively firing both fully automatically and semi-automatically,  and is currently regulated under the National Firearms Act of 1934.  Recent "assault weapons" acts are aimed at semi-automatic rifles, as well as pistols and shotguns with certain cosmetic features, literally guns that "look" intimidating, but have a basic function and have been in existence for over 100 years.  [p.596]
It is a most pernicious form of elitism that preserves the rights of the wealthy to buy aesthetically elite guns, but deprives poor people access to firearms within their economic means. The recent attempt to deprive public housing tenants of their right to possess firearms has drawn the ire of the National Association for the Advancement of Colored People because this deprivation, in effect, equates them with "felons and lunatics."
Calling a dog's tail a fifth leg does not change the tail, any more than calling a gun an "assault weapon" changes its basic function. Questioning the suitability of particular guns for hunting overlooks the potential suitability for purposes of self defense. As government is under no obligation "to protect an individual against private violence,"  the people must retain a means of protecting themselves. Even if one adopts the conservative view of the ninth amendment, namely that rights at common law were preserved, the right to keep and bear arms exists independent of the second amendment.
The founders sought to protect arms from government interference, because those same arms might be needed to protect the people from government. They wanted to assure that the people remained both armed and dangerous to tyranny.  The Virginia Declaration of Rights not only reserved the right to overthrow a despotic government, but suggested it has an affirmative duty of the people:
[t]hat government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best ... is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.  [p.597]
Mr. Mason's language remains unchanged in Virginia's current constitution. 
Our constitutional system has existed and prospered because of adherence to fundamental principles, and in particular to those liberties set forth in the Bill of Rights.  To suggest that the second amendment is entitled to less dignity than other amendments is to disparage the entire Bill of Rights. The second amendment is not about hunting but it is, in its final analysis, about liberty.
* Member, Virginia State Bar, Assistant General Counsel, National Rifle Association of America. The views expressed in this article are strictly those of the author. The assistance of Juanita Butler in the preparation this manuscript is gratefully acknowledged.
1. So claims a bumper sticker, 20th century America's equivalent to the colonial broadside.
2. Columnist George T. Will has identified the underlying theory as one that "says that, free individuals must be independent from coercion, and such independence depends in part on freedom from the ménage of standing armies and government monopoly on the means of force". Washington Post, March 21, 1991, at A 21.
3. D. BOORSTIN, THE AMERICANS--THE COLONIAL EXPERIENCE 353 (1958).
4. VII THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE, IN THE YEAR 1619 at 95 (W. Hening ed. 1820 & photo reprint 1969).
5. W. SHEA, THE VIRGINIA MILITIA IN THE SEVENTEENTH CENTURY 1 (1983).
6. J. WHISKER, The citizen soldier and U.S. Military Policy 3-6 (1979).
7. The Right to Keep and Bear Arms-Report of the Subcommittee on the Constitution of the Committee on the Judiciary 1 S. 97th Cong., 2d sess. (1982).
8. 1 A. Howard, Commentaries on the Constitution of Virginia 268 (1974). See also J. Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 HASTINGS CONST.L.Q. 285 1983.
9. S. Halbrook, That Every Man Be Armed 45 (1984). See also D. HARDY, ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT (1986).
10. I A. HOWARD COMMENTARIES 449, supra note 8.
11. BLACKSTONE'S COMMENTARIES at 129 (St. George Tucker ed. 1803 & photo. reprint 1969).
12. Id. at Vol. IV, p. 3.
13. Id. at Vol. II, p. 144.
14. See Caplan, The Right of the Individual To Bear Arms: A Recent Judicial Trend, 4 DET.COL.L.REV. 789 (1982).
15. Statutes of Northampton (2 Edw. III c. 3). See also, V BLACKSTONE'S COMMENTARIES, supra note 10, at 148, and Caplan, The Right of the Individual To Bear Arms: A Recent Judicial Trend, 4 DET.COL.L.REV. 789 (1982).
16. D. BOORSTIN, supra note 3, 353.
17. See Dowlut, Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L.REV. 59 (1989), see also S. HALBROOK, A RIGHT TO BEAR ARMS (1989).
18. III Debates on the Adoption of the Federal Constitution 314 (J. Elliot, ed. 1836 and photo. reprint 1974).
19. Letter from T. Jefferson to Wm. Smith (Nov. 13, 1787) reprinted in THOMAS JEFFERSON WRITINGS 911 (M. Peterson ed. 1984).
20. Cress, A WELL-REGULATED MILITIA: THE ORIGINS AND MEANING OF THE SECOND AMENDMENT in the BILL OF RIGHTS--A LIVELY HERITAGE 66 (J. Kukla, ed. 1987).
21. See Shalhope, The Ideological Origins of The Second Amendment, 69 J. OF AM.HIST. 599 (1982). See also Lund, The Second Amendment, Political Liberty, and The Right to Self-Preservation, 39 ALA.L.REV. 103 (1987) and Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 HARV.J.L. & PUB. POL'Y 559 (1986).
22. The Federalist No. 46 at 321 (J. Cooke ed. 1961).
23. THE FEDERALIST No. 46, at 321-22 (J. Cooke ed. 1961).
24. Id. at 321-22.
25. Creating the Bill of Rights--The Documentary Record from the First Federal Congress 182-186 (H. Veit, K. Bowling and C. Bickford, Eds. 1991).
26. THE DIARY OF WILLIAM MACLAY 375 (K.R. Bowling and H.E. Veit, Eds.) (1988). As the Senate met in secret, Maclay's diary provides the best single resource on its proceedings.
27. United States v. Cruikshank, 92 U.S. 543 (1876).
28. Presser v. Illinois, 116 U.S. 252 (1886).
29. See Miller v. Texas, 153 U.S. 535 (1894), see also Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 GEO. MASON U.L.REV. 1 (1981).
30. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
31. See Tahmassebi, That All Such Free Mulattoes, Negroes and Indians ...: Gun Control and Racism, 2 GEO. MASON CIVIL RIGHTS L.J. ---- (1991).
32. See, Restricting Handguns--The Liberal Skeptics Speak Out, Section I (D.B. Kates, Jr., ed., 1979).
33. See Comments of Elbridge Gerry of Massachusetts in creating the Bill of Rights 182, supra note 25.
34. United States v. Miller, 307 U.S. 174 (1939).
35. 26 U.S.C. § 5801.
36. Miller, 307 U.S. at 178.
37. I A. HOWARD COMMENTARIES 276-277, supra note 8.
38. III ELLIOT'S DEBATES 425, supra note 18.
39. Modern use of the unorganized militia is rare. In 1946, Governor William Munford Tuck of Virginia called up the organized militia to avert a strike by Virginia Electric and Power Company employees. See, W.B. Crawley Bill Tuck, Ch. 4 (1978).
40. Perpich v. Dep't of Defense, --- U.S. ----, 110 S.Ct. 2418 (1990).
41. Id. at 2426.
43. Ala.Code § 31-2-2 (1989); Alaska Stat. § 2605.010 (1986); Ariz.Rev.Stat.Ann. § 26-121 (1976); Ark.Stat.Ann. § 12-60-102 et. seq. (1987); Conn.Gen.Stat.Ann. §§ 27-1, 27-2 (West 1975); Del.Code Ann. tit. 20, § 301 (1985); D.C.Code Ann. § 39-102 (1986); Fla.Stat.Ann. § 250.02 (West 1989); Haw.Rev.Stat. § 121-1 (1988); Ill.Ann.Stat. ch. 129, para. 220.001 et. seq. (Smith Hurd 1953); Ind.Code Ann. § 10-3-1-1 et. seq. (Burns 1986); Kan.Stat.Ann. § 37.170 (Baldwin 1984); La.Rev.Stat.Ann. § 29:3 (West 1989); Me.Rev.Stat.Ann. tit. 37-B § 222 (1989); Md.Ann.Code art. 65, § 1 (1957); Mass.Gen.Laws.Ann. ch. 33, § 2 (West 1985); Mich.Comp.Laws Ann. §§ 32.509, 32.555 (West 1967); Minn.Stat.Ann § 190.06 (West 1986); Miss.Code Ann. § 33-5-1 (1973); Mo.Ann.Stat. § 41.050 (Vernon 1989); Mont.Code Ann. § 10-1-101 et. seq. (1989); N.C.Gen.Stat. § 127A-1 (1975); N.D.Cent.Code § 37-02-01 (1980); Neb.Rev.Stat. § 55-106 (1989); Nev.Rev.Stat § 412.026 (1989); N.H.Rev.Stat.Ann. § 110B:1 (1985); N.J.Stat.Ann. § 38A:1-1 (1989); N.M.Stat.Ann. 20-2-2 (1989); N.Y.Mil.Law et. seq. (McKinney 1990); Ohio Rev.Code Ann. § 5923.01 (Anderson 1990); Okla.Stat.Ann.; tit. 44 § 41 (West 1990); Or.Rev.Stat. § 396.105 (1989); 51 Pa.Cons.Stat. § 301 (1989); R.I.Gen.Law § 30-1-2 (1982); S.C.Code Ann. § 25-1-60 (Law.Co-op.1989); S.D.Codified laws Ann. § 33-2-2 (1986); Tenn.Code Ann. § 58-1-104 (1989); Tex.Govt.Code Ann. § 431.061 (Vernon 1989); Utah Code Ann. § 39- 1-1 (1989); Va.Code Ann. § 44-1 (1989); Wash.Rev.Code Ann. § 38.04.030 (1990); Wis.Stat.Ann. § 21.01 (West 1986); Wyo.Stat. § 19-2-102 (1986).
44. Constitutions Ala. Const. art. 15, § 271; Ariz. Const. art. 16, § 1; Ark. Const. art. 11, § 1; Colo. Const. art 17, § 1; Fla Const. art. 10, § 2; Ga. Const art. 3, § 11; Idaho Const. art. 14, § 1; Ill. Const. art. 6, § 1; Kan. Const. art. 8, § 1; Ind. Const. art. 12, § 1; Me. Const. art. 7, § 4; Mich. Const. art. 3, § 4; Minn. Const. art. 13, § 9; Miss. Const. art. 6, § 13; Mo. Const. art. 3, § 46; Mont. Const. art. 6, § 13; Neb. Const. art. 14, § 1; Nev. Const. art. 12, § 1; N.H. Const. art. 24; N.J. Const. art. 5, § 3; N.M. const. art. 18, § 1; N.Y. Const. art. 12, § 1; N.D. Const. art. 11, § 16; Ohio Const. art. 9, § 1; Okla. Const. art. 5, § 40; Or. Const. art. 10, § 1; S.C. Const. art. 13, § 1; S.D. Const. art. 15, § 1; Tenn. Const. art. 4, § 1; Tex. Const. art. 16-46; Utah Const. art. 15, § 1; Vt. Const. ch. 2, § 59; Va. Const. art. 1, § 13; Wash. Const. art. 10, § 1; Wisc. Const. art. 4, § 29; Wyo. Const. art. 17, § 1.
45. United States v. Verdugo-Urquidez, --- U.S. ----, 110 S.Ct. 1056 (1990).
46. Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 645 (1989).
47. For an extensive discussion of this issue see Morgan, Assault Rifle Legislation: Unwise and Unconstitutional, 17 AM.J.CRIM.L. 143 (1990).
48. The accepted military definition is that "assault rifles are short, compact, selective fire weapons that fire a cartridge intermediate in power between submachine gun and rifle cartridges." SMALL ARMS IDENTIFICATION AND OPERATION GUIDE, Defense Intelligence Agency.
49. 26 U.S.C. § 5801.
50. Cal.Penal Code 12275, et. seq.; see also N.J.Stat.Ann. 2c: 39-1, et. seq.
51. Richmond Times Dispatch, Jan. 26, 1991, Richmond dealing with remedial legislation precipitated by Richmond Tenants Org., Inc. v. Richmond Dev. & Hous. Authority, No. C.A. 3:90CV00576 (E.D.Va., Dec. 3, 1990). See also TONSON, GUN CONTROL: WHITE MAN'S LAW, REASON (Dec. 1985).
52. Deshaney v. Winnebago County of Social Serv., --- U.S. ----, 109 S.Ct. 998, 1004 (1989).
53. See Bordenet, The Right to Possess Arms: The Intent of the Framers of the Second Amendment, 21 U. WEST L.A.L.REV. 1 (1990); see also Hardy, The Second Amendment and The Historiography of the Bill of Rights, 4 J.L. & Pol. 1 (1987).
55. Virginia Declaration of Rights, § 3. See also Va. Const. art. I. § 3.