Right to Bear Arms is Older than the Second Amendment

Harold W. Glassen

The American Rifleman

There is probably less agreement, more misinformation, less understanding of the right of citizens to keep and bear arms than on almost any other current controversial constitutional issue. The sportsmen and other pro-gun people refer to and place reliance upon the Second Amendment to the United States Constitution which reads:

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

This is a slender reed upon which to rely because from a technical legal viewpoint all that the Second Amendment means is that Congress may not pass any law which infringes the right of the people to keep and bear arms. Neither the Constitution of the United States nor any of its amendments including the Second grant to any one the right to keep and bear arms. Neither is such right dependent on the United States Constitution or on any other Constitution for its existence.

A basic right of the people to have arms for their own protection against harm from others and from abuse by their own government was a part of the English Common Law which is the foundation of our law. Late in the 17th Century writings clearly indicate the recognition of such right in England.

The anti-gun people deny that there is such a basic right to keep and bear arms by the people, but they are wrong and they know they are wrong. The very wording of the Second Amendment while it does not create such right recognizes that there is such right by the phrase "the right of the people." Except for Hart, Tydings, Javits, Kennedy, Celler and Mikva and their ilk, the right of the people to keep and bear arms is acknowledged and accepted.

The chief question which confronts you and me and our kind of people most frequently is whether the right to keep and bear arms is individual, meaning that such right inures to each person, or collective that is to say, that such right applies only to a selective group. The anti-gun people say that the only group so authorized is the militia and that the individual has no such right. Our opposition indicates their shallow thinking by their contention that the preamble to the Second Amendment, which preamble reads "A well-regulated militia being necessary to the security of a free state," limits such right to the militia.

Ex-Senator Tydings and some others cite the United States Supreme Court case of the United States vs. Mill, 307 U.S. 174, decided in 1939, wherein the court held that the right to possession of a sawed-off shotgun by the defendant Miller was not protected by the wording of the Second Amendment because such weapon had no relationship to a "well-regulated militia." From this relatively innocuous holding . . . the anti-gun people stretched the court's words to claim that the right to keep and bear arms is a collective right limited to the militia only. This shallow concept ignores the word "people" in the Second Amendment and it ignores the fact that at the time of the passage of the Second Amendment the militia was not the "State troops" or "National Guard" or other organized groups subject to call up by Federal government in time of war. At the time of the Second Amendment, each colony had its own militia; and who were the militia? All able-bodied men between certain ages, 16 and 60, 18 and 45, depending on the place and the time, and upon demand of their colonial government they were required to appear for duty bringing their own weapons . . .

Those who contend that the right to keep and bear arms is collective and limited to the militia ignore what meager evidence there is of the Constitutional debates leading to the passage of the Bill of Rights. Although these records are not as complete as we might hope, nor as complete as they would be if held today, they do indicate clearly that there were separate proposals for a militia and separate proposals for the right of the individual to keep and bear arms and that the two were put together to comprise the much debated Second Amendment.

I mentioned earlier that the Second Amendment merely prohibits the Congress from passing any law infringing the right to keep and bear arms. However, of relatively recent date, which in the law means during the past several years, the Supreme Court has increasingly applied some of the prohibitions of the Bill of Rights to the States as well as to the Congress.

No case since 1939 involving State legislation claimed to be in violation of the Second Amendment has been squarely considered by the Supreme Court, unless one accepts the refusal of the Supreme Court to entertain an appeal from the State Supreme Court of New Jersey involving the question of whether or not a statute of that State was in violation of the Second Amendment. Not having given any indications of whether or not it will apply the Second Amendment to State legislation, the Supreme Court keeps all its options open and in a given case appealed from a State could conceivably hold that the Second Amendment applies only to Congress and not to the State legislatures.

I have stated that the United States Constitution does not create the right to keep and bear arms but that such right existed in the English law and may be considered adopted in our common law. Whereas the U.S. Constitution does not create such a right, such is not the case in the matter of the State constitutions. Thirty-five States have constitutions concerning the right of the people individually to keep and bear arms. The provision in the current Michigan Constitution, which is exact language in its previous constitution, is quite typical and reads: "Every person has a right to keep and bear arms for the defense of himself and the State." Obviously this is not a limitation but is a creation of the right whether or not it was necessary for a constitution to create such right. Certainly the most rabid and illogical of our opponents cannot deny that an individual right to keep and bear arms exists in States having constitutional provisions comparable to that in the Michigan Constitution.

It is necessary, however, for you and me and the millions who think as we do to recognize at once that all the State courts of last resort, insofar as I know without exception, have recognized that the constitutional right of the people, of the individual, to keep and bear arms is subject to the police power of the State. "Police power" simply means that the State has the right of reasonable regulation for the general health, welfare and safety of its citizens. The key word here is "reasonable" and this has been quite universally interpreted to include within such police power tight regulations on the carrying of concealed firearms, the carrying thereof in public places and the carrying of firearms in automobiles . . .

I have been frequently asked through the years why the NRA has not taken a case involving gun control legislation to the United States Supreme Court. I assure you this has been considered many times. I for one have been opposed to taking this chance in the past. However, if we are getting and we do get a court composed of judges of the law and not of individual social planners then my thinking might well change.

To sum up:

l. The Second Amendment does not create the right of the people to keep and bear arms, but it prevents the Congress from infringing such right--thereby recognizing that such right exists.

2. Such right existed in the English common law and is a part of our common law.

3. The Federal Government has no police power but some right of regulation is permissible under the Commerce Clause and I sometimes think our Federal Government does not know it has no police power. At this time in history, there is reasonable doubt whether the Supreme Court of the United States would determine whether the Congress was restrained from infringing the right of the individual to keep and bear arms, that is to say whether the right is collective or individual. This question could come up in the event of legislation providing for confiscation of individually owned firearms.

4. At this time the Second Amendment applies to the Congress, but there is some indication that the Supreme Court might extend this prohibition to the 15 States not now having a constitutional provision on the matter of the right to keep and bear arms.

5. Most of the States' constitutional provisions recognize or, if the need existed, create the right to keep and bear arms.