The Right to
Have Arms and Use Deadly Force Under the Second and Third Amendments
by David I. Caplan
SUMMARY
The constitutional
right of the people to keep arms has deep roots in common law and
constitutional history, and it remains of fundamental importance to this
day. This right is explicitly guaranteed
in the Second Amendment in the Bill of Rights and includes the keeping by
private citizens of any hand-carried arms commonly used by private individuals
and police for personal defense.
Because "A
man's house is his castle and his defense," and because the Third
Amendment in the Bill of Rights prohibits government from quartering soldiers
in a person's house during times of peace without his consent, the
constitutional right of the people to keep arms must guarantee at its core the
legally unfettered ability of the householder to acquire speedily and to keep
permanently and anonymously in his house such arms as are commonly used for
home defense, not only as a means for resistance against violent burglars but
also as a strong moral check and deterrent against illegal quartering of troops
in his house.
A key purpose of
the constitutional right of the people to keep arms was enunciated in Presser v. Illinois decided by the U.S.
Supreme Court in 1886, to wit, "for maintaining the public security"
-- that is, for citizen participation in preventing and suppressing violent
felonies and capturing violent felons on the spot, a public purpose of great
current importance and necessity, as at the common law.
STATEMENT
According to a
1977 Library of Congress, Congressional Research Service, legal analysis
entitled "The Second Amendment: A Legal Analysis," the constitutional
right of the individual citizen to keep arms has been "forcefully"[1]
presented as follows:
The Second Amendment in the Federal Bill of
Rights guarantees 'the right of the people to keep and bear arms.' This little
understood and hence most under valued Article in our Bill of Rights was
intended by its Framers to preserve our democratic-republican form of
government and to prevent it from destroying the ballot box and from slipping
into tyrannical totalitarianism. Especially when combined with the Ninth
Amendment's bundle of rights which was retained by the people and with the
Fifth Amendment's right to life, liberty, and property, the Second Amendment
also plainly guarantees the private individual right to keep and carry Arms for
the added purpose of self- preservation and defense of the individual...
The history and debates surrounding this 2d
Amendment show that its Framers intended that a well regulated militia was only
one of the purpose for the right of the people to keep and bear Arms. Viewed in
another aspect, the 2d Amendment was adopted to obtain a militia which would be
"well regulated" by the right of the people to keep and bear
arms."[2]
The
constitutional right of the people to keep and bear arms is further guaranteed
today by the constitutions of thirty-seven States.[3]
This constitutional right inherently includes the right to use those arms for
self-protection against attacks by burglars, robbers, arsonists, rapists, and
other marauders--according to a judicial decision decided in 1964[4]
in
"A
man's house is his castle and his defense, and where he has a peculiar right to
stay..." declared an English court[7]
in 1506, in the context of the right to protect oneself from bodily harm. As
explained by Lord Coke:[8]
And yet in some cases a man may not only use
force and arms, but assemble company also. As any man may assemble his friends
and neighbors to keep his house against those that come to rob him, or kill
him, or to offer him violence in it,...for a man's house is his castle, &c domus sua cuique est tutissimum refugium
[a house is for everyone his safest refuge]; for where shall a man be safe, if
it be not in his house? And in this sense it is truly said
Armaque in armatos sumere jura sinunt.
[The laws permit taking up
arms against armed persons.]
The importance of the
foregoing quote, from Coke's Institutes
of the Laws of England, resides in the fact that of all the books on either
law or politics in colonial libraries "the most common was Coke's
Institutes"[9]
and that the U.S. Supreme Court has recently expressed the opinion that Lord
Coke was "widely recognized by the American colonist as the greatest
authority of his time on the laws of England.'"[10]
Thus Coke's Institutes formed the
basis upon which the Framers of the Bill of rights drafted "in a compact
draft,...express in terms of the common law,"[11]
such Articles in the Bill of Rights as the right to keep and bear arms, and the
right to be free in one's own house from quartering of soldiers during times of
peace without his consent even when all
else fails.
In Stanley v. Georgia,[12]
the U.S. Supreme Court in 1969 held unconstitutional a State statute
prohibiting the possession of obscene materials even in one's own home. The
Court extended constitutional protection to the mere possession of such
pornographic materials, however unprotected such possession might be under the
First Amendment, upon the sole legal basis of "privacy of the home, ... a
reaffirmation that 'a man's house is his castle.'"[13]
Thus even if it were to be assumed that handguns are the hard-core pornography
of the Second Amendment, or that handguns are not constitutionally protected
"arms" within any guarantee of the Constitution or common law,
nevertheless the "mere possession...in the privacy of a person's own
house"[14]
of handguns would still be constitutionally protected, both from State and from
Federal regulation, because "a man's house is his castle and his
defense."
Of particular
importance thus is the Second and Third Amendment protection of the right to
keep arms in the house permanently and anonymously--that is, arms immune from
registration or licensing; and the right to acquire those arms quickly and with
no legal impediments or burdens is thus also guaranteed. Moreover, the
procedural and substantive due process concern for the individual's "life,
liberty, [and] property" contained in the Fifth and Fourteenth Amendments,
as well as the right to privacy and other non-enumerated personal rights
protected by the Ninth Amendment,[15]
further confirm and guarantee the individual constitutional right to keep and
use arms for "self preservation and defence."[16]
The
constitutional test of "balancing of interests"[17]
cannot be applied in cases of core constitutional rights. Thus, for example,
the U.S. Supreme Court in a 1979 case[18]
refused to consider any balancing of conflicting interests when dealing with
"the constitutional privilege against compulsory self-incrimination in its
most pristine form."[19]
Similarly, by the same token, there can be no balancing -of-interest test when
dealing with the "unqualified"[20]
right to keep arms as opposed to the
qualified right to bear arms. The
keeping of handguns in the home for self preservation and defense thus lies at
the core of the constitutional right to keep arms for the purpose of defending
one's own house--one's castle--and may thus not be cut down by any balancing
test if we are going to be at all faithful to fundamental constitutional
principles.
Courts have
dealt with the utility of handguns in another context. In order for an
invention to be patentable, it must have utility.[21]
In a 1969 case,[22]
the United States Court of Customs and Patent Appeals put its hearty stamp of
approval on its updated quotation from a 1903 decision[23]
of the U.S. Court of Appeals, 7th Circuit, in turn quoting from the 1880
textbook Walker on Patents:
An important question,
relevant to utility in this aspect, may hereafter arise and call for judicial
decision. It is perhaps true, for example, that the invention of Colt's
revolver was injurious to the good order of society. That instrument of death
may have been injurious to morals, in tending to tempt and to promote the
gratification of private revenge. It may
have been injurious to health, in that it is very liable to accidental
discharge, and thereby to cause wounds,
and even homicide. It may also have been
injurious to good order, especially in the newer parts of the country, because
it facilitates and increases private warfare among frontiersmen. On the other
hand, the revolver, by furnishing a ready means of self-defense, may sometimes
have promoted morals and health and good order.
By what test, therefore is utility to be determined in such cases? Is it
to be done by balancing the good functions with the evil functions? Or is everything useful within the meaning of
the law, if it is used (or is designed and adapted to be used) to accomplish a
bad one? Or is utility negatived by the mere fact that the thing in question is
sometimes injurious to morals, or to health, or to good order? The third
hypotheses cannot stand, because if it could, it would be fatal to patents for
steam engines, dynamos, electric railroads, and indeed many of the noblest
inventions of the nineteenth century. [And what of such things as automobiles,
airplanes, tires, power tools, explosives, lawn mowers, and drugs in the
twentieth century?] The first hypothesis cannot stand, because if it could, it
would make the validity of patents to depend on a question of fact to which it
would often be impossible to give a reliable answer. The second hypothesis is the only
one which is consistent with the reason of the case, and with the practical
construction which the courts have given to the statutory requirements of
utility.[24]
Just as the
revolver's fundamental socially redeeming importance for self-defense thus
renders its invention patentable from the standpoint of utility, likewise this
same self-defense feature renders the possession of a revolver by the
law-abiding citizen worthy of constitutional protection under the Second Amendment
of the Bill of Rights.
The
constitutional right to keep and use arms raises two fundamental threshold issues
as to what arms, and what uses, are constitutionally protected. As with other
provisions[25]
of the Bill of Rights, the common law furnishes the proper standards and
criteria for the right to keep and use arms.
In short, the arms protected under the common law, and hence under the
Constitution, in the hands of the citizenry are all those arms which are "hand-carried
weapons [i.e., which can be bourne by an individual] commonly used by
individuals [and police] for personal defense."[26]
Thus, firearms such as pistols, revolvers, rifles, and shotguns are all clearly
within the ambit of constitutional protection, and none can logically be
excluded. As to constitutionally protected uses, these include the common-law
justifiable (and not merely excusable)[27]
uses of deadly force against violent felons encountered in the act of felony
committed by "violence [and] surprise"[28]
who "would not surrender peaceably, but stood on their defense, or
fled."[29]
In all such cases of felonious attacks, the life of the victim is presumed to be in danger under the
common law;[30]
and hence in all those cases the victim or bystander was justified under common
law to use deadly force to prevent or resist the felony and to capture the
felon, as an act worthy of "commendation rather than blame."[31]
Accordingly, the justifiable uses of deadly force with firearms commonly used
for the purpose, under common law rules of justification, lies at the core of
the constitutional right to keep and bear arms; their use to defend the home by
preventing or suppressing burglary or arson was "one of the major
privileges of the common law."[32]
[1].
The Second Amendment: A Legal Analysis,
Congressional Research Service, Library of Congress (1977) (77-84-A, 639/90, UC
460 B), pp. 43-44.
[2]
"Point
Blank", Vol. VI, No. 7, July 1976, p.2, as quoted in note 1.
[3]
D.I.
Caplan, The Right of the Individual to Bear
Arms: A Recent Judicial Trend,
[4]
McKellar v. Mason, 159 So. 2d 700,
702 (4th La. Cir., 1964) ("The Constitutions of the
[5]
See, Professor H.
Wechsler, Chief Reporter of Model Penal Code, statement in 35th Annual Meeting, The American Law Institute, Proceedings
(1958), p. 285.
[6]
See, Professor H.
Wechsler, Chief Reporter of Model Penal Code, statement in 35th Annual Meeting, The American Law Institute, Proceedings
(1958), p. 285.
[7]
Anonymous,
21 Henry VII, 39 pl. 50 (K.B., 1506), transl., J.H. Beale, Jr., A selection of Cases and Other Authorities
Upon Criminal Law (2nd ed., 1907), p. 569.
[8]
E.
Coke, The Third Part of the Institutes of
the Laws of England, The Mary Ingraham Bunting Institute of Radcliffe College, Bunting Institute Working Paper (1980), p. 15. See also, State v. Kessler,
289
[9]
Payton v. New York,
445
[10]
[11]
Ex parte Grossman,
267
[12]
394
[13]
Paris Adult Theatre v. Slayton, 413
[14]
Stanley v. Georgia, supra
note 12, 394
[15]
See, Griswold v. Connecticut,
381
[16]
1
W. Blackstone, Commentaries (1765), p. 140. Facsimile ed., 1979.
[17]
Jersey v. Portash,
440
[18]
[19]
[20]
Aymette v. State,
21
[21]
35
U.S. Code sect.102.
[22]
re Anthony,
414 F. 2d 1383 (CCPA, 1969).
[23]
Fuller v. Berger,
120 Fed. 274 (7th Cir., 1903).
[24]
In re Anthony, supra
note 22, 414 F. 2d n. 12.
[25]
For
example, in Payton v. New York, 445 U.S.
573, 591 (1980), regarding the standards for the Fourth Amendment's
"reasonableness" of searches and seizures (including body seizures or
arrests), the U.S. Supreme Court declared: "An examination of the
common-law understanding of an officer's
authority to arrest sheds light on the obviously relevant, if not entirely dispositive,
consideration of what the Framers of the Amendment thought to be reasonable."
For other examples, see D.I. Caplan, Restoring the Balance; The Second Amendment Revisited,
5 Fordham Urban Law Journal (1976). p. 33 and n. 16. See also, supra note 11 and accompanying text.
[26]
State v. Kessler,
289
[27]
For
the distinction between justifiable and excusable homicide, see, R.M. Perkins, Criminal Law (2nd ed., 1969), pp. 1001 - 1002. Basically,
justifiable homicides arose in the killing of violent burglars, robbers,
arsonists, and rapists caught in the act or in immediate flight therefrom;
excusable homicides arose in sudden brawls, heat of passion or accidents. He who
committed a justifiable homicide was fully acquitted and discharged; he who
committed a merely excusable homicide required a pardon from the crown in order
to be released from jail and at various times in English history, forfeited his
worldly goods even if pardoned.
[28]
Beard v. United States,
158
[29]
Rex v. Compton,
22 Liber Assisarum (Book of Assizes) placitum 55 (1347), transl. in J.H. Beale,
Jr., Retreat from a Murderous Assault,
16 Harvard Law Review (1903), p. 567, at p. 569. This Compton's Case was cited as controlling authority in 3 E. Coke, Institutes (5th ed., 1671), p. 221.
[30]
United States v. Gilliam,
25 Fed. Cas. 1319, 1320 (Case No. 15,205a) (D.C., 1882); People v. Ceballos, 12
[31]. 4 W. Blackstone, Commentaries on the Laws of England (1769), p. 182 (Facsimile of
the First Edition, 1979.)
[32] R.M. Perkins, Criminal Law (2nd ed., 1969), p.992 p. 1004.