THE RIGHT OF THE PEOPLE OR THE POWER OF THE STATE: BEARING ARMS, ARMING MILITIAS, AND THE SECOND AMENDMENT

[Copyright © 1991 Stephen P. Halbrook; Valparaiso U. Law Review. Originally published as 26 Val. U. L. Rev. 131-207 (1991). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571. Dr. Halbrook is the author of That Every Man Be Armed: The Evolution of a Constitutional Right which may be obtained from amazon.com]

THE RIGHT OF THE PEOPLE OR THE POWER
OF THE STATE: BEARING ARMS, ARMING
MILITIAS, AND THE SECOND AMENDMENT[*]

I. Introduction

On this two hundredth anniversary of its adoption, the Second Amendment to the United States Constitution, like certain other provisions of the Bill of Rights, has been subjected to politically-valued, result-oriented interpretation.[1] The Second Amendment provides: "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."

The ostensibly-harmless philosophical declaration about the militia which precedes the substantive guarantee belonging to "the people" has given rise to the argument that the Amendment somehow protects only the power of a state to maintain a militia. While harboring no agenda for state militia powers, advocates of this hypothesis strongly oppose firearms ownership by the general public.[2]

There is a hidden history of the Second Amendment which is long overdue to be written. It is this: during the ratification period of 1787-1791, Congress and the states considered two entirely separate groups of amendments to the Constitution. The first group was a declaration of rights, in which the right of the people to keep and bear arms appeared. The second group, consisting of amendments related to the structure of government, included recognition of the power of states to maintain militias. The former became the Bill of Rights, while the latter was defeated.[3] Somehow, through some Orwellian rewriting (p.132)of history, as applied to the issues of the right of the people to keep and bear arms and the state militia power, that which was defeated has become the meaning of that which was adopted.

The state power to maintain militias vis-a-vis the federal military power was already treated in the text of the Constitution before the Bill of Rights was proposed. Article I, Section 8 empowers Congress "to declare War, ... to raise and support Armies ... [and] to make Rules for the Government and Regulation of the land and naval Forces .... " Congress is also empowered:

The writing of this hidden history of the Second Amendment is timely, given the current assault on firearms ownership in the Congress and some States.[5] By happenstance, the Supreme Court decided two cases in 1990 which contribute to an understanding of these issues. First, in United States v. Verdugo-Urquidez,[6] a Fourth Amendment case, the Court made clear that all law-abiding Americans are protected by the Second Amendment as follows:

In his dissent, Justice Brennan argued even more broadly that "the term 'the people' is better understood as a rhetorical counterpoint 'to the government,' such that rights that were reserved to 'the people' were to protect all those subject to 'the government'... 'The people' are 'the governed.'"[8] Justice Brennan also reviewed the drafting history of the Fourth Amendment, noting that the Framers "[c]ould have limited the right to 'citizens,' 'freemen,' 'residents,' or the 'American people.' ... Throughout that entire process, no speaker or commentator, pro or con, referred to the term 'the people' as a limitation."[9] Similarly, the Framers could have limited the Second Amendment right to select state militias, but instead used the terms "the people."

Finally, Justice Brennan pointed out that rights are not "given to the people from the government.... [T]he Framers of the Bill of Rights did not purport to 'create' rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing."[10] This statement is particularly applicable to the right to keep and bear arms, which has been recognized as a personal right for centuries.[11]

The second 1990 Supreme Court opinion has relevance to the twentieth-century argument that the Second Amendment protects only the "right" of a state to maintain a militia, and that the "militia" is restricted to the National Guard. In Perpich v. Department of Defense,[12] the Court recognized that the National Guard is part of the Armed Forces of the United States and that the (p.134)Reserve Militia includes all able-bodied citizens.[13]

The issue was whether the Militia Clause allowed the President to order members of the National Guard to train outside the United States without the consent of a state governor or the declaration of a national emergency.[14] Perhaps the most noteworthy fact about the opinion was its failure to mention the Second Amendment at all, that Amendment being irrelevant to the issue of the state power to maintain a militia. In fact, the Court referred to the state power over the militia as being recognized only in "the text of the Constitution, " not in any amendment:

The Court then reviewed Congress' various militia enactments. The first, passed in 1792, provided that "every able-bodied male citizen between the ages of eighteen and forty-five be enrolled [in the militia] and equip himself with appropriate weaponry ...."[16] In 1903, new legislation "divided the class of able-bodied male citizens between eighteen and forty-five years of age into an 'organized militia' to be known as the National Guard of the several States, and the remainder of which was then described as the 'reserve militia,' and which later statutes have termed the 'unorganized militia.'"[17] Both of the above were passed under the Militia Clauses of the Constitution.[18]

By contrast, in legislation dating to 1916, "the statute expressly provided that the Army of the United States should include not only 'the Regular Army,' but also 'the National Guard while in the service of the United States' ...."[19] (p.135)Today's National Guard came into being through exercise by Congress of the power to raise armies,[20] not the power to organize the militia.

The Court referred to "the traditional understanding of the militia as a part-time, nonprofessional fighting force,"[21] and as "a body of armed citizens trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace."[22] The Court also recognized the existence of "all portions of the 'militia'--organized or not ...."[23]

The Court concluded that "there is no basis for an argument that the federal statutory scheme deprives [a state] of any constitutional entitlement to a separate militia of its own."[24] The Court failed even to suggest that the Second Amendment had any bearing on the issue.

In sum, it was clear enough to the Supreme Court in 1990 that "the people" in the Second Amendment means individuals generally, as it does in the rest of the Bill of Rights; that the "militia" means the body of armed citizens at large, organized and unorganized; and that the Second Amendment is not relevant to the power of a states to maintain the militia.

This analysis begins with the adoption of the Militia Clause, and the first calls for a bill of rights, in the constitutional convention of 1787. It then traces chronologically the ratification struggle in the state conventions and in the writings of Federalists and Antifederalists. The proposal and adoption of the Bill of Rights in Congress, first by the House and then by the Senate, is scrutinized, along with explanations and criticisms published in the public forum and ratification by the states. The historical portion of this study ends with a review of enactment of the militia act of 1792 by the First Federal Congress. Concluding remarks relate to pre-1990 Supreme Court jurisprudence.

II. The Constitutional Convention of 1787

In the Constitutional Convention of 1787, the issue of the militia was first raised in reaction to a proposal that the national legislature be empowered to (p.136)negate state laws. Elbridge Gerry of Massachusetts observed on June 8 "that the proposed negative would extend to the regulations of the militia--a matter on which the existence of the state might depend. The national legislature, with such a power, may enslave the states."[25]

George Mason of Virginia raised the topic on August 18, proposing "a power to regulate the militia."[26] Reliance on the militia for the public defense would preclude a peacetime standing army. "Thirteen states will never concur in any one system, if the disciplining of the militia be left in their hands."[27] By regulating or standardizing the militia, the general government would assist the states in preserving their powers.

Mason proposed a power "to make laws for the regulation and discipline of the militia of the several states, reserving to the states the appointment of officers."[28] "He considered uniformity as necessary in the regulation of the militia, throughout the Union."[29] Oliver Ellsworth of Connecticut proposed that "the militia should have the same arms and exercise, and be under rules established by the general government when in actual service of the United States; and when states neglect to provide regulations for militia, it should be regulated and established by the legislature of the United States."[30] He explained: "The whole authority over the militia ought by no means to be taken away from the states, whose consequence would pine away to nothing after such a sacrifice of power."[31]

John Dickinson of Delaware supported both Mason and Ellsworth. A most important matter was "that of the sword." His opinion was, that the states never would, nor ought to, give up all authority over the militia.[32] He proposed that the power extend to only part of the militia at any one time, "which, by rotation, would discipline the whole militia."[33] Mason then incorporated this idea of "a select militia" into his proposal.[34] That term had a less innocent meaning in the mind of Ellsworth, who "considered the idea of a select militia as impracticable; and if it were not, it would be followed by a ruinous declension of the great body of the militia. The states would never (p.137)submit to the same militia laws."[35]

Roger Sherman of Connecticut opined that "the states might want their militia for defen[s]e against invasions and insurrections, and for enforcing obedience to their laws."[36] Mason agreed, adding to his motion an exception that the general power would not extend to "such part of the militia as might be required by the states for their own use."[37] Mason's proposals were then referred to committee.

When reported back to the Convention, the Militia Clause provided that Congress may "make laws for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed ...."[38] On August 23, the following debate ensued:

Thus, the power over the militia was intended to establish standards for exercises and for arms, which the people would furnish themselves. The objective was to provide discipline for the self-armed populace, not to arm or disarm select groups.

The provision would be adopted substantially as proposed. The Convention rejected a more comprehensive substitute for the second clause to the effect that Congress would "establish a uniformity of arms, exercise, and organization for the militia ...."[40] For example:

Cavalry, of course, were armed with pistol and sword, and perhaps carbine. Rifles were long-range weapons used by independent frontiersmen and backwoodsmen, while muskets were medium-range arms favored in New England.[42] Uniform bore sizes among militiamen in a given locale would allow interchangeable ammunition, but differing terrain and habits of the people precluded uniform types of arms.

In response to Madison's argument that the states neglected the militia, Luther Martin of Maryland replied that "the states would never give up the power over the militia; and that, if they were to do so, the militia would be less attended to by the general than by the state governments."[43] After Gerry warned that granting Congress powers inconsistent with the existence of the states would lead to civil war, Madison rejoined that "as the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual (p.139)provision for a good militia."[44] The Militia Clause would protect the power of the states to maintain militias and to retain their sovereignty by precluding a need for standing armies.

On September 12, George Mason "wished the plan had been prefaced with a bill of rights .... It would give great quiet to the people, and, with the aid of the state declarations, a bill might be prepared in a few hours."[45] Roger Sherman thought the state declarations sufficed, and that Congress could be trusted.[46] Mason pointed out that "the laws of the United States are to be paramount to state bills of rights."[47] The Convention narrowly killed the motion for a committee to prepare a bill of rights.[48]

On September 14, Mason moved to insert before the Militia Clause in Article I, Section 8, the declaration "and that the liberties of the people may be better secured against the danger of standing armies in time of peace."[49] Draftsman of the Virginia Declaration of Rights of 1776, Mason was the leading author of such declaratory clauses, and would be responsible for a similar one in what became the Second Amendment. Madison supported the motion: "as armies in time of peace are allowed, on all hands, to be an evil, it is well to discountenance them by the Constitution ...."[50] However, the Convention voted against the proposal.

Attempts to declare various rights also failed. Charles Pinckney of South Carolina and Elbridge Gerry offered a declaration "that the liberty of the press should be inviolably observed."[51] Again, Roger Sherman defeated that proposal with the remark, "It is unnecessary. The power of Congress does not extend to the press."[52] This opinion held sway, and the Convention proposed the Constitution without a bill of rights.

Two days before the Convention ended, delegate Thomas Fitzsimons of Pennsylvania asked Noah Webster to write in support of the proposed Constitution.[53] Webster responded with An Examination of the Leading (p.140)Principles of the Federal Constitution, the first major pro-Constitution pamphlet.[54] Webster explained why the armed populace would remain sovereign under a constitution with an army but no bill of rights:

Tench Coxe, a friend of Madison and another prominent Federalist, argued in his influential "An American Citizen" that, should tyranny threaten, the "friends to liberty ... using those arms which Providence has put into their hands, will make a solemn appeal to 'the power above.'"[56] Coxe also wrote: "The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them ...."[57]

Stating the case against ratification of the Constitution without a bill of rights was Richard Henry Lee's Letters from the Federal Farmer, which were first published in October and November of 1787. Predicting the early employment of a standing army through taxation, Lee contended:

As Federalist and Antifederalist pens clashed, the state ratifying conventions began to meet to consider the Constitution. Delaware, New Jersey, Georgia, Connecticut, Maryland, and South Carolina would quickly ratify without proposing a declaration of rights.[59] In the other states, amendments would be seriously debated and proposed.

III. The Struggle for Ratification of the Constitution

A. The Pennsylvania Convention and the Dissent of the Minority

The Pennsylvania Convention was divided between Federalists, who saw Congress' power over the militia as conducive to an armed populace, and Antifederalists, who feared that without a bill of rights, the people could be disarmed. The Antifederalists also sought an entirely separate amendment to recognize the state power to maintain militias.

James Wilson had served in the Constitutional Convention of 1787 and was well familiar with the explanation that Congress' power to arm the militia meant standardization, not disarmament. Congress could prescribe common sizes of barrels for firearms required to be possessed by the populace so that ammunition (p.142)would be interchangeable:

John Smilie made the classic Antifederalist argument against Congress' power, "'Congress may give us a select militia which will, in fact, be a standing army--or Congress, afraid of a general militia, may say there shall be no militia at all. When a select militia is formed; the people in general may be disarmed.'"[61] This argument assumed that the right to keep and bear arms would be protected by the people combining into general militias to prevent being disarmed by select forces. By contrast, James Wilson used the following symbolic argument to contend that the Constitution allowed for the ultimate force in the populace: "In its principles, it is surely democratical; for, however wide and various the firearms of power may appear, they may all be traced to one source, the people."[62]

The majority of the Pennsylvania Convention refused to propose amendments to the Constitution, which was ratified on December 12, 1787. However, the "Dissent of the Minority of the Convention" demanded a declaration of rights. Apparently written by Samuel Bryan, author of Centinel, the document was first published on December 18, 1787, and was circulated throughout the country.[63] Among the rights declared were the following:

The above tracked the language of the Pennsylvania Declaration of Rights of 1776 in guaranteeing the right to bear arms for self-defense and defense of the state,[65] adding defense of the United States and hunting purposes as well. Bearing arms to hunt was not out of place in the article, because Pennsylvanians were very familiar with British laws which disarmed the people under the guise of game laws.[66] Similar to the federal First Amendment adopted later, which begins "Congress shall make no law," this proposal states that "no law shall be passed for disarming the people, or any of them"--except that criminals or particular dangerous individuals could be disarmed.

The above clarifies that the term "bear arms" is not linguistically restricted to matters of the militia or the national defense. Bearing arms for self-defense and hunting were proper purposes. Mention of standing armies and the subordination of the military to the civil power in the same article did not detract from the individual character of the right guaranteed. Indeed, the state power to maintain a militia was proposed in a completely separate amendment:

The "Dissent" deemed an analysis of some of the proposals to be necessary. The need to retain state power over the militia was explained as follows:

Thus, the Pennsylvania Convention minority made the first demand of a portion of a ratifying convention for a Declaration of Individual Rights, including bearing arms, and a reservation of state powers, including organizing the militia. Despite Pennsylvania having ratified the Constitution, Antifederalists continued to demand amendments. One Antifederalist expressed his attitude toward powder and lead (and hence arms) as follows: "the sons of freedom ... may know the despots have not altogether monopolized these necessary articles."[69]

While the state had already ratified the Constitution, a number of Pennsylvanians gathered at the "Harrisburg Convention" which, on September 3, 1788, reiterated the call for amendments. Instead of a declaration of specific rights, the convention would have incorporated all of the rights declared in the State Bills of Rights: "that every reserve of the rights of individuals, made by the several constitutions of the states in the Union, to the citizens and inhabitants of each state respectively, shall remain inviolate, except so far as they are expressly and manifestly yielded or narrowed by the national Constitution."[70]

In a totally separate article, the following amendment was proposed: (p.145)"[t]hat each state, respectively, shall have power to provide for organizing, arming, and disciplining the militia thereof, whensoever Congress shall omit or neglect to provide for the same."[71] Thus, individual rights were sharply contrasted from state powers, a linguistic usage which would prevail throughout the next three years.

B. The Federalist Response

The right of the people to keep firearms, particularly those with military uses, argued the Constitution's proponents, would be recognized even without a bill of rights. In The Federalist No. 29, first published in the New York Independent Journal on January 9, 1788, Alexander Hamilton expounded the argument that it would be wrong for a government to require:

In The Federalist No. 46, first published in the New York Packet on January 29, 1788, James Madison contended that "the ultimate authority ... resides in the people alone." To a regular army of the United States government "would be opposed a militia amounting to near half a million citizens with arms in their hands." Alluding to "the advantage of being armed, which the Americans possess over the people of almost every other nation,"[73] Madison continued: "Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, (p.146)the governments are afraid to trust the people with arms."[74]

Madison sent a copy of the above to Tench Coxe, who found them "very valuable papers" and used the ideas in his own writings.[75] Coxe responded to the "Dissent of the Minority" in Pennsylvania as follows:

C. Samuel Adams' Proposal at the Massachusetts Convention

The demand for a bill of rights reached a high pitch in Massachusetts before the ink on the proposed Constitution had time to dry. A "ship news" satire poking fun at various bill of rights proposals had this to say about the right to keep and bear arms:

Antifederalist John DeWitt published a series in Boston in late 1787 which articulated the position against the Constitution. The following appeared in the American Herald on December 3: "It is asserted by the most respectable writers upon government, that a well regulated militia, composed of the yeomanry of the country, have ever been considered as the bulwark of a free people. Tyrants (p.147)have never placed any confidence on a militia composed of freemen."[78]

DeWitt predicted that Congress "at their pleasure may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties ...."[79]

At the Massachusetts Ratifying Convention, William Symmes warned that the new government at some point "shall be too firmly fixed in the saddle to be overthrown by any thing but a general insurrection."[80] Yet fears of standing armies were groundless, affirmed Theodore Sedwick, who queried, "if raised, whether they could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?"[81]

Samuel Adams, the most prolific proponent of the individual right to keep and bear arms in the pre-Revolutionary era,[82] introduced the following amendments in the Convention:

It is noteworthy that the declaration stressed the "keeping" of arms, a favorite theme of Samuel Adams and the other founding fathers of Massachusetts, which experienced the most dramatic arms seizures by the British before the Revolution.[84] However, the right to keep arms extended only to "peaceable citizens," not to criminals.

The Federalist majority in the convention prevented passage of Adams' proposals. An Antifederalist explained:(p.148)

The Massachusetts Convention ratified the Constitution on February 7, 1788, without demanding a declaration of rights. Nonetheless, other than the standing army provision, Adams' proposal would be seen as embodying the First, Second, and Fourth Amendments to the Constitution when they were being considered by Congress in 1789.[86]

D. "Congress Shall Never Disarm Any Citizen": The New Hampshire Demands

When it ratified the Constitution on June 21, 1788, the New Hampshire Convention became the first in which a majority voted to recommend a bill of rights, albeit a brief one. The recommended amendments concerning individual rights, which would be reflected in the First, Second, and Third Amendments, were as follows:

The prohibitions on Congress would be absolute--"Congress shall make (p.149)no laws" on religion and "shall never disarm any citizen"--except that "actual" insurgents could be disarmed. The exception was prompted by Shay's Rebellion in Massachusetts and the smaller Exeter, New Hampshire riot of 1786.[88]

One Federalist writer set forth an interesting analysis of the New Hampshire and Pennsylvania proposals. The Reverend Nicholas Collin of Philadelphia published a series under the pen name "A Foreign Spectator" (from Sweden) entitled "Remarks on the Amendments to the Federal Constitutions" proposed by the state conventions. If the Constitution contained "a scrupulous enumeration of all the rights of the states and individuals, it would make a larger volume than the Bible ...."[89] Further, an army was no danger "especially when I am well armed myself." "While the people have property, arms in their hands, and only a spark of noble spirit, the most corrupt Congress must be mad to form any project of tyranny."[90]

Collin further held that "a good militia is the natural, easy, powerful and honorable defense of a country."[91] Identifying "a citizen, as a militia man," he referred to "that noble art, by which you can defend your life, liberty and property; your parents, wife and children!"[92]

Collin then considered "those amendments which particularly concern several personal rights and liberties. "[93] Attacking a proposal that the privilege of habeas corpus should not be suspended for more than six months, he supported his position by referring to two of the proposed arms guarantees:

This is the only discussion in the ratification period of the limited power of Congress to disarm any person or group under the two proposed amendments. Since persons involved in an insurrection could be arrested, Collin reasoned, they could certainly also be disarmed. This argument reflected the experiences of the Revolution, in that a Tory who could be tarred and feathered could be disarmed first, and a Redcoat who could be shot could surrender his person and weapons instead. There is no hint in Collin's discussion that Congress could pass any law restricting firearms ownership by law-abiding citizens.

E. "Things So Clearly Out of the Power of Congress": Debate in the Public Forum

Alexander White published a strong reply to the Pennsylvania "Dissent", which had generated opposition to the Constitution throughout several states, including Virginia. White timed publication of his article to precede the election of delegates to the Virginia ratifying convention, for which White was running.[95] White regarded the objections of the Pennsylvania minority as bordering on the dishonest, for Congress clearly had no power over rights such as the private bearing of arms:

White proceeded to repeat the Federalist dogma that a bill of rights would be dangerous, because it would suggest that Congress had power over any subject not explicitly listed in the bill of rights: "But if they had been admitted as reservations out of the powers granted to Congress, it would have opened a large field indeed for legal construction: I know not an object of legislation which by a parity of reason, might not be fairly determined within the jurisdiction of Congress."[97]

Nonetheless, White recognized that abuse of a right could be penalized: "The freedom of speech and of the press, are likewise out of the jurisdiction of Congress.--But, if by an abuse of that freedom I attempt to excite sedition in the Commonwealth, I may be punished...."[98] Similarly, Congress had no power over bearing arms for defense or hunting, but could punish armed sedition. After publication of the above, White was elected as a delegate to the Virginia Convention,[99] where he voted with Madison and the other Federalists to ratify the Constitution prior to amendments.[100]

An Antifederalist who published a proposed Declaration of Rights in Virginia would have guaranteed a right to keep and bear arms for "the people," but would have stated "the national defense" as the objective of that right. Acting through Arthur Campbell in Pennsylvania, the "Society of Western Gentlemen"[101] proposed a declaration with the following: "The people have a right to keep and bear arms, for the national defense; standing armies in time of peace are dangerous to liberty, therefore the military shall be subordinate to the civil power."[102]

In a second series of Letters from the Federal Farmer, advertised in New (p.152)York in early May 1788, Richard Henry Lee classified as "fundamental rights" the rights of free press, petition, and religion; the rights to speedy trial, trial by jury, confrontation of accusers and against self-incrimination; the right not to be subject to "unreasonable searches or seizures of his person, papers or effects;" and, in addition to the right to refuse quartering of soldiers, "the militia ought always to be armed and disciplined, and the usual defense of the country ...."[103] Since these rights were to be recognized in the Bill of Rights, Lee's concept of the militia warrants further examination:

Thus, Lee feared that Congress, through its "power to provide for organizing, arming, and disciplining the militia" under Article I, Section 8 of the proposed Constitution, would establish a "select militia" apart from the people that would be used as an instrument of domination by the federal government. The contemporary argument that it is impractical to view the militia as the whole body of the people, and that the militia consists of the select corps now known as the National Guard, also existed during Lee's time. He refuted it in these terms:

Lee's view that a well-regulated militia was the armed populace rather than a select group, or "Prussian militia,"[106] was reiterated by many others. "Aristocrats" feared that the active militia would "quell insurrections that may arise in any parts of the empire on account of pretensions to support liberty, redress grievances, and the like."[107] "The second class or inactive militia, comprehends all the rest of the peasants; viz., the farmers, mechanics, labourers, &c. which good policy will prompt government to disarm. It would be dangerous to trust such a rabble as this with arms in their hands."[108] "M. T. Cicero" wrote to "The Citizens of America":

F. "That Every Man Be Armed": The Virginia Convention

Lee's Antifederalist colleagues in Virginia, Patrick Henry and George Mason, would effectively argue the above positions in that state's ratifying convention. The result would be an irresistible push for what became the Second Amendment and the rest of the Bill of Rights.

Apparently before the Convention began, the Virginia Antifederalists had already drafted a declaration of rights which the convention would later adopt (p.154)nearly verbatim. Its apparent author was George Mason, who merely added to the Virginia Declaration of Rights of 1776, which he also authored.

In one draft in Mason's handwriting, the following language appears: "That the people have a Right to mass & to bear arms; that a well regulated militia, composed of the Body of the people, trained to Arms, is the proper natural and safe Defense of a free State ...."[110] A right to "mass" with arms and bear them recalled the revolutionary days when the armed multitudes would descend upon British colonial officials. This term would be dropped for the more conservative term "keep," which connotes the quiet storage and possession of arms in the home, and which prohibits governmental seizure of arms.

Just after the Virginia Convention began, the Virginia Antifederalists sent copies of a declaration to Antifederalists in the New York convention. George Mason, chairman of a "Committee of Opposition," wrote to John Lamb, chairman of the Federal Republican Committee of New York, on June 9, 1788,[111] enclosing another draft (in Mason's handwriting) of a proposed declaration of "the essential and unalienable Rights of the People."[112] It included: "That the People have a Right to keep and to 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 ...."[113] William Grayson and Patrick Henry also wrote letters dated the same, enclosing the draft, to Lamb.[114] As will be seen, the Virginia Convention would adopt this language almost verbatim.

The Virginia Ratifying Convention met from June 2 through June 26, 1788. Edmund Pendleton, opponent of a bill of rights, weakly argued that abuse of power could be remedied by recalling the delegated powers in a convention.[115] Patrick Henry shot back that the power to resist oppression rests upon the right to possess arms: "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined."[116] Henry sneered, "O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone .... Did you ever read of any revolution in a (p.155)nation ... inflicted by those who had no power at all?"[117]

Since the Constitution had not been tested, Henry's arguments cannot be considered mere exaggerations. He queried, "of what service would militia be to you, when, most probably, you will not have a single musket in the state? For, as arms are to be provided by Congress, they may or may not furnish them."[118] Quoting the Militia Clause of the Constitution, Henry continued: "By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither--this power being exclusively given to Congress."[119]

James Madison responded that the militia provision was "an additional security to our liberty, without diminishing the power of states in any considerable degree .... Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repeal invasions: these are the only cases wherein they can interfere with the militia ...."[120]

In response to a suggestion that the militia would be made into an instrument of tyranny, Frances Corbin asked: "Who are the militia? Are we not militia? Shall we fight against ourselves?"[121] The Federalist line was clear: an armed populace had no need of a written bill of rights.

Patrick Henry objected to the provision in Clause 17 for federal arms magazines in each state:

Similarly, Henry reiterated his objections to the Militia Clause: "We have (p.156)not one fourth of the arms that would be sufficient to defend ourselves. The power of arming the militia, and the means of purchasing arms, are taken from the states by the paramount power of Congress. If Congress will not arm them, they will not be armed at all."[123]

John Randolph denied that the federal power was exclusive of the states. "Should Congress neglect to arm or discipline the militia, the states are fully possessed of the power of doing it; for they are restrained from it by no part of the Constitution."[124] As will be seen, Convention would demand explicit recognition of this in an amendment to the Constitution.

George Mason agreed with Henry. Attacking the idea of a standing army, Mason argued:

"When, against a regular and disciplined army, yeomanry are the only defense,--yeomanry, unskillful and unarmed,--what chance is there for preserving freedom?"[126] Mason recalled:

Mason undoubtedly quoted from a page of Sir William Keith's Collection of Papers and Other Tracts published in London in 1740. Colonial Pennsylvania Governor Keith violated every tenet of the whig-republican philosophy which so influenced the Americans with the following words:

Keith's fear of "accustom[ing] all the able Men in the Colonies to be well exercised in Arms" was directly related to his fear of "rebellion." He was the apologist of colonial imperialism par excellence, holding that "Every Act of a dependent Provincial Government therefore ought to terminate in the Advantage of the Mother State"[129] and that none of the colonies "can with any Reason or good Sense pretend to claim an absolute legislative Power within themselves ...."[130]

While Mason may not have referred to it in the above speech, in a 1767 publication Keith advocated resort to the stamp tax in order to support a "Body of Regular Troops" under the control of the Crown and independent of the (p.158)colonial governors,[131] and as if that addition of insult to injury was not enough, referred to the "loose, disorderly, and insignificant Militia."[132] One purpose of the standing army would be conquest against the Indians for purposes of economic expansion.[133]

Mason had also made such arguments outside the Convention. On May 26, Mason wrote to Thomas Jefferson:

James Madison countered Mason's arguments and quotations from Keith with the assertion that the federal and state governments were "coequal sovereignties," adding: "I cannot conceive that this Constitution, by giving the general government the power of the arming the militia, takes it away from the state governments. The power is concurrent, not exclusive."[135]

Henry again denied that the power was concurrent, and in a single argument asserted both the individual right to have arms and the state power to encourage a militia consisting of the armed populace:

Again the Federalists countered, with George Nicholas articulating more precisely why the militia power was not exclusive:

While not applied specifically to the right to have arms, the requirement that a license be obtained before exercise of a right was deemed to be infringement. George Nicholas argued: "The liberty of the press is secured.... In the time of King William, there passed an act for licensing the press. That was repealed .... The people ... will not consent to pass an act to infringe it...."[138] The term "infringe" would, of course, be used in the Second Amendment.

William Grayson reasserted the exclusive power interpretation, warning that the militia "might be armed in one part of the Union, and totally neglected in another." He pointed out that England had an excellent militia law for itself, entailing "thirty thousand select militia," but neglected the militia of Scotland and Ireland."[139]

John Marshall examined in detail the reasons why all powers not exclusively delegated are retained, illustrating his point by reference to Article I, Section 10 of the Constitution, which provides that "no state shall engage in (p.160)war" unless invaded.[140] He continued:

The Republican militia was the armed populace at large; to be avoided was a select militia or standing army.

In response, Nicholas detected a contradiction in the Antifederalists, in that Grayson objected because there would be no select militia, while Mason objected that there would be. Mason replied that Grayson "had mentioned the propriety of having select militia, like those of Great Britain, who should be more thoroughly exercised than the militia at large could possibly be. But he, himself, had not spoken of a selection of militia, but of the exemption of the highest classes of the people from militia services ...."[143] Grayson agreed, opining that "a well-regulated militia ought to be the defence of this country. In some of our constitutions it is said so."[144] Article XIII of the Virginia Declaration of Rights, authored by George Mason, defined such a militia as "the (p.161)body of the people, trained to arms. "

Edmund Pendleton, president of the Convention, got in the last word on the power of the state to have a militia. "The power of the general government to provide for arming and organizing the militia is to introduce a uniform system of discipline to pervade the United States of America .... [T]hough Congress may provide for arming them ... there is nothing to preclude [the states] from arming and disciplining them, should Congress neglect to do it."[145]

Similarly, the final word on the individual right to have arms was by Zachariah Johnson, who argued that the new Constitution could never result in religious persecution or other oppression because "the people are not to be disarmed of their weapons. They are left in full possession of them."[146]

The Virginia Convention resolved the above and other disputed provisions by ratifying the Constitution on June 25, 1788, subject to the stipulation that "every power, not granted thereby, remains with [the people of the United States], and at their will ...."[147] On June 27, the Convention recommended passage of a bill of rights and other amendments drafted by a committee (appointed two days before) which included Henry, Randolph, Mason, Nicholas, Grayson, Madison, John Marshall, and others.[148]

The recommended bill of rights asserting "the essential and unalienable rights of the people"[149] included the following:

George Mason simply added the first clause--the right to bear arms--to the rest of the provision he had drafted for the Virginia Declaration of Rights of 1776.[151] As noted, Mason, Henry, and Grayson had sent copies of a (p.162)declaration with essentially the same language to New York Antifederalists at the beginning of the Virginia Convention.[152]

The Virginia Convention recommended an entirely different set of amendments to the text of the Constitution, including the provision: "That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."[153] This language was almost verbatim with that proposed by the Harrisburg Convention in Pennsylvania.[154] It did not appear in the draft declaration Mason had authored before the Convention. As will be seen, this and the other amendments clarifying the federal-state relationship would later fail in Congress altogether. Even so, the essence of some of these proposals would be ratified in the more general Tenth Amendment.

G. The New York Convention

The New York Convention was preceded by serious Antifederalist agitation. One "Common Sense" noted "that the chief power will be in the Congress, and that what is to be left of our government is plain, because a citizen may be deprived of the privilege of keeping arms for his own defence, he may have his property taken without a trial by jury ...."[155]

As noted, George Mason and other Virginia Antifederalists sent letters and a draft declaration of rights to the New York Antifederalists. Antifederalist newspaper editor Eleazer Oswald personally carried and delivered this correspondence to John Lamb, chairman of the Federal Republican Committee, on June 21. New York Governor George Clinton, also President of the New York Convention, gave copies of the letters to a Special Committee of Correspondence.[156]

Robert Yates, chairman of the Special Committee, wrote to George Mason on June 21, thanking him for the proposed amendments, and enclosing a draft agreed to by many of the New York Convention delegates.[157] While this draft has not been located, the New York convention would adopt the Virginia language with a slight change in the Militia Clause.

Following Virginia by one month, New York ratified the Constitution on (p.163)July 26, 1788. The Convention predicated its ratification on the following interconnected propositions:

Explicit in this language are the two independent declarations that individuals have a right to be armed and that the militia is the armed people. The Convention declared "that the rights aforesaid cannot be abridged or violated ...."[159]

New York also adopted an entirely separate list of amendments concerning the structure of government. While not including a state militia power like that of Virginia, the Convention suggested the following: "That the militia of any state shall not be compelled to serve without the limits of the state, for a longer term than six weeks, without the consent of the legislature thereof."[160]

H. The North Carolina Convention

On August 1, 1788, the North Carolina Convention demanded the adoption of a Declaration of Rights securing "the unalienable rights of the people" and of other amendments concerning governmental powers before it would ratify the Constitution.[161] Among the various rights Antifederalists anticipated could be infringed was the right to have arms. Equating the militia with the people at large, William Lenoir argued that Congress: "could disarm the militia. If they were armed, they would be a resource against great oppressions .... If the laws of the Union were oppressive, they could not carry them into effect, if the people were possessed of proper means of defence."[162]

The Declaration of Rights included the following taken from Virginia's proposals:(p.164)

A separate body of amendments dealt exclusively with the powers of the state and federal governments. Like the Harrisburg and Virginia Conventions, the North Carolina Convention proposed:

North Carolina refused to ratify the Constitution until November 21, 1789, several weeks after Congress passed the Bill of Rights and proposed it to the states.

IV. The Armed Populace: Philosophical and Pre-Revolutionary
Influences

While Federalists and Antifederalists differed on the need for a paper declaration, they were unified on the concept that an armed populace is necessary for a free state. As the ratification struggle ensued, prominent authors recalled philosophical influences and pre-Revolutionary experiences which linked the disarming of the people with oppression.

During 1787-1788, John Adams published his Defense of the Constitutions of Government of the United States of America, which became well known in the States and in Europe. Adams relied on classical sources, in the context of an analysis of quotations from Marchamont Nedham's The Right Constitution of a Commonwealth (1656), to vindicate a militia of all the people:(p.165)

After agreeing that all the continental European states achieved absolutism by following the Caesarian precedent of erecting "praetorian bands, instead of a public militia,"[166] the aristocratic Adams recognized the individual right to use arms for personal protection but looked askance at the kind of armed protest exemplified in Shays' Rebellion: "To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defence, or by partial orders of towns ... is a dissolution of the government."[167]

For the more radical Thomas Jefferson, individual discretion was acceptable in the use of arms not simply for private but for public defense as well. Writing in 1787, Jefferson stressed the inexorable connection between the right to have and use arms and the right to revolution as follows:

In 1789, Dr. David Ramsay published his History of the American Revolution. A prominent Federalist, Ramsay wrote this work while he was a member of the Continental Congress in the 1780s.[169] He also served as a delegate to the South Carolina ratification convention in 1788. Madison had served with Ramsay in the Continental Congress, and was aware of the book.[170]

Ramsay's account of grievances leading to the Revolution was apropos, because bills of rights were then being drafted to prevent a recurrence of infringements on rights such as keeping and bearing arms. Ramsay recalled General Gage's disarming of the inhabitants of Boston just after Lexington and Concord in 1775, the most significant infringement which would destine the Second Amendment's recognition of the right to "keep" arms, as follows:

Specifically, in the Declaration of Causes of Taking Up Arms of 1775, the Continental Congress decried Gage's seizure of the arms that had been surrendered with the assurances that the arms would be kept only temporarily by the selectmen, and that the inhabitants would be allowed to depart from Boston.[172] Ramsay listed the specific types of arms seized--firearms (i.e. muskets and other long-barrelled shoulder arms), pistols, bayonets, and blunderbusses, which are short-barrelled shotguns.

It would be naive to believe that the inhabitants did not keep a substantial number of their arms. Ramsay noted Gage's skepticism as follows:

Evidently, the American tradition of civil disobedience to firearms prohibitions was well entrenched by 1775.

Ramsay also recalled King George's 1774 ban on importation of firearms into the colonies. "The provincials laboured under great inconveniences from the want of arms and ammunition. Very early in the contest, the king of Great Britain, by proclamation, forbad[e] the exportation of warlike forces to the colonies."[174] This infringement on the right to keep arms was circumvented by domestic manufacture and smuggling.

Ramsay extolled the Americans' superiority in the bearing and use of arms. (p.168)"All their military regulations were carried on by their militia, and under the old established laws of the land. For the defence of the colonies, the inhabitants had been, from their early years, enrolled in companies, and taught the use of arms."[175] Ramsay noted: "Europeans, from their being generally unacquainted with fire arms are less easily taught the use of them than Americans, who are from their youth familiar with these instruments of war ...."[176] Ramsay pointed out the close connection between a nation of hunters and target shooters and a well regulated militia. Of the Battle of Bunker Hill, he wrote:

Due to the shortage of gunpowder, the Revolutionary leaders encouraged preservation of the article only for overthrow of tyranny. "The public rulers in Massachusetts issued a recommendation to the inhabitants, not to fire a gun at beast, bird or mark, in order that they might husband their little stock for the more necessary purpose of shooting men."[178] But Ramsay remembered the difficulty of regimenting armed free thinkers: "The husbandmen who flew to arms were active, zealous, and of unquestionable courage, but to introduce discipline and subordination, among free men who were habituated to think for themselves, was an arduous labour."[179]

Ramsay aptly captured the Americans' perception of themselves in 1789, as free people who were entitled to speak their minds and to keep and bear arms. His account of British infringements on these rights must have been considered most timely by the architects and craftsmen of what became the Bill of Rights.

V. The Adoption of the Bill of Rights

A. Madison's Proposed Amendments

In the first federal elections under the new Constitution, James Madison ran (p.169)for a seat in the new House of Representatives against James Monroe, who championed the Antifederalist cause. Departing from previous Federalist positions, Madison championed a bill of rights, and won the election.[180]

In what is thought to be a speech he drafted to deliver to the House had he won the election, Monroe advocated a declaration of rights, stating:

As fate would have it, Madison would give a similar speech. Madison had been keeping a scrapbook of newspaper clippings from around the country of proposed amendments, including those from the state conventions.[182] In his notes for a speech introducing what became the Bill of Rights, Madison wrote: "They [the proposed amendments] relate first to private rights--fallacy on both sides espec[iall]y as to English Decl[aratio]n. of Rights--1. mere act of parl[iamen]t. 2. no freedom of press--Conscience ... attainders--arms to protest[an]ts."[183]

Thus, Madison stated that the rights he would propose, such as freedom of the press and keeping and bearing arms, were "private rights." The "fallacy" as to the English Declaration of Rights was that it was a "mere act of Parliament" which Parliament itself could repeal; by contrast, the American Bill of Rights would not, as part of the Constitution, be subject to repeal by Congress. Moreover, the English Declaration either omitted or unreasonably limited fundamental rights. Freedom of the press was not recognized at all, and the right to keep and bear arms was limited to Protestants and further limited by class: "That the Subjects which are Protestants, may have Arms for their (p.170)Defence suitable to their Condition, and as are allowed by Law."[184]

On June 8, 1789, in the House of Representatives, James Madison proposed his long-awaited bill of rights. Madison's draft contained both philosophical declarations and substantive restrictions. First, the Constitution would contain a new preamble with fundamental principles from the Virginia Declaration of Rights: "all power is originally vested in, and consequently derived from the people;" "government is instituted ... for the benefit of the people;" and "the people have an indubitable, unalienable, and indefeasible right to reform or change their government ...."[185] The ultimate power is in the people, who would thereby have the right to be armed.

Madison then proposed that the text of the Constitution be amended to limit the powers of Congress. Civil rights could not be abridged on account of religious belief, no national religion could be established, and the rights of conscience could not be "in any manner, or on any pretext infringed."[186] "The people shall not be deprived or abridged of their right to speak," and a free press, "as one of the great bulwarks of liberty," would be inviolable.[187] "The people shall not be restrained from peaceably assembling and consulting for their common good," and petitioning the legislature for redress of grievances.[188] The next guarantee referred to the same entity with rights--"the people"--and interposed a philosophical declaration between two restrictions: "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: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."[189]

This provision, which became the Second Amendment, began with a substantive guarantee in the nature of a command that the individual right to keep and bear arms shall not be infringed. Just as "keeping" arms referred to possession of arms by an individual, the terms "bear arms" meant simply to carry arms. Previously, Madison had sponsored a bill in the Virginia legislature under which a person who hunted deer illegally would be on probation for a year and could not "bear a gun out of his inclosed ground, unless whilst (p.171)performing military duty ...."[190] The violator could bear a pistol, but not a shoulder arm except for militia duty.[191]

After the above command that the right shall not be infringed, Madison's proposal made the philosophical declaration that a well armed and regulated militia is the best security of a free country. This declaration did not limit the right, but gave the chief political reason for guaranteeing the right against governmental infringement. Keeping and bearing arms would be protected for all lawful purposes, but self-defense, hunting, shooting at the mark (i.e., target shooting), and other nonpolitical purposes had no place in a federal Constitution which delegated no power to regulate these activities. Since Congress could raise and support armies, the superiority of the militia in securing a "free" country must be declared. For the same reason, conscientious objectors could not be forced to bear arms in military service.

In contrast with the above substantive guarantees, most of the remainder of Madison's resolutions related to procedural guarantees such as double jeopardy, search and seizure, and other criminal matters. A longer version of what became the Ninth Amendment concluded the limitations on the power of Congress:

To the existing prohibitions on state action, Madison would have provided that no state shall "violate" the equal rights of conscience or a free press.[193] An amendment to the judiciary provisions of the Constitution would have asserted that in common law suits, "the trial by jury as one of the best securities to the rights of the people, ought to remain inviolate."[194] Like the "well-regulated-militia" declaration to the arms guarantee, this philosophical statement about "one of the best securities" of the people's rights was never intended as (p.172)a limitation on the guarantee.

Toward the end of the Constitution, Madison would have inserted a version of what became the Tenth Amendment, absent recognition of power in "the people": "The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively."[195]

Throughout, Madison utilized consistent word choice: governments have "powers," while only "the people" as individuals have "rights," albeit the people also have "powers."[196] At no point did Madison suggest that any of the bill of rights provisions were intended to protect state powers from federal intrusions, that "the people" really meant the state governments, that a state government had "rights" instead of "powers," or that the term "infringe" applied to anything other than governmental violation of individual rights. Madison conceptualized the rights he sought to guarantee as follows:

According to the above analysis, the press, arms and similar substantive guarantees would be "rights which are retained" and among "the pre-existent rights of nature." These are the areas in which the Government "ought not to act." Jury trial and other procedural rights start from the social compact. They specify that the government must "act only in a particular mode."

The Bill of Rights was conceived to deny exercise of power whether by direct infringement or indirectly through exercise of a delegated power. Opponents of a bill of rights pointed only to the lack of an explicit power over any of the proposed guarantees. For instance, Congressman James Jackson of Georgia argued: "The gentleman endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war."[198] Madison answered such arguments as follows:

In other words, Congress has no delegated power to abridge freedom of the press or to infringe on the right to keep and bear arms. Nor may Congress exercise one of its delegated powers, such as taxation or regulation of commerce, in such way as to infringe on the right to posses arms or to violate the right against unreasonable search and seizure.

While he followed the recommendations of several state conventions that (p.174)a declaration of rights be adopted, Madison did not offer extensive amendments concerning the structure of government. One such amendment Madison neglected was the power of the states to organize militias.

Madison's colleagues clearly understood the arms guarantee to be protective of individual rights. Representative Fisher Ames of Massachusetts wrote: "Mr. Madison has introduced his long expected amendments .... It contains a bill of rights ... the right of the people to bear arms."[200] Ames wrote to another correspondent: "The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people."[201] Senator William Grayson of Virginia informed Patrick Henry: "Last Monday a string of amendments were presented to the lower House; these altogether respected personal liberty ...."[202] After reading the amendments which Madison sent him, Joseph Jones wrote to Madison that "they are calculated to secure the personal rights of the people ...."[203]

Ten days after the Bill of Rights was proposed in the House, Tench Coxe published his "Remarks on the First Part of the Amendments to the Federal Constitution," under the pen name "A Pennsylvanian," in the Philadelphia Federal Gazette.[204] Probably the most complete exposition of the Bill of Rights to be published during its ratification period, the "Remarks" included the following: "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms." In short, what is now the Second Amendment was designed to guarantee the right of the people to have "their private arms" to prevent tyranny and to overpower an abusive standing army or select militia.

Coxe sent a copy of his article to Madison along with a letter of the same (p.175)date. "It has appeared to me that a few well tempered observations on these propositions might have a good effect .... It may perhaps be of use in the present turn of the public opinions in New York state that they should be republished there."[205] Madison wrote back, acknowledging "your favor of the 18th instant. The printed remarks inclosed in it are already I find in the Gazettes here [New York]." Madison endorsed Coxe's analysis--including that the amendment protected the possession and use of "private arms"--with the comment that ratification of the amendments "will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen."[206]

Coxe's defense of the amendments was widely reprinted.[207] A search of the literature of the time reveals that no writer disputed or contradicted Coxe's analysis that what became the Second Amendment protected the right of the people to keep and bear "their private arms." The only dispute was over whether a bill of rights was even necessary to protect such fundamental rights. "One of the People" replied to Coxe's article with a response called "On a Bill of Rights," which held "the very idea of a bill of rights" to be "a dishonorable one to freemen." "What should we think of a gentleman, who upon hiring a waiting-man, should say to him "my friend, please take notice, before we come together, that I shall always claim the liberty of eating when and what I please, of fishing and hunting upon my own ground, of keeping as many horses and hounds as I can maintain, and of speaking and writing any sentiments upon all subjects." As a mere servant, the government had no power to interfere with individual liberties in any manner without a specific delegation. "[A] master reserves to himself ... everything else which he has not committed to the care of those servants."[208](p.176)

Samuel Nasson, a member of the Massachusetts Ratification Convention who voted against the Constitution, explained the common understanding of the arms guarantee in letter dated July 9 to Representative George Thatcher, a Federalist from that state:

The above is the only known correspondence from a constituent to a Congressman which explained the understanding of the proposal that became the Second Amendment. The right to keep arms exists for "common," i.e., ordinary, occasions and for "extraordinary" occasions, such as hunting beasts and fowl and protection from a common foe. The purpose was a citizenry with experience and knowledge in the use of arms which comes from regular (p.177)possession of and practice with arms. Only an armed citizenry could prevent the oppression of a standing army.

Not all constituents' mail favored a bill of rights. A week before Madison had introduced the amendments, Federalist and Congregational pastor Jeremy Belknap wrote to Senator Paine Wingate of Massachusetts that Samuel Adams, on taking office as lieutenant governor expressed:

The pastor resented Adams' attempt at the Massachusetts convention to recommend a bill of rights, and clearly did not support the impending federal bill of rights. Yet he correctly characterized bill-of-rights supporters who wished for recognition of the "personal" right to keep arms--they feared that government would become criminal unless restrained.

B. Action by the House Select Committee

The House Select Committee to consider amendments appointed on July 21, 1789, included John Vining of Delaware as Chairman, Madison, Roger Sherman of Connecticut, and a member from each of the other states.[211] Sherman formulated his own draft of proposed amendments to the Constitution. Seven of the ten amendments in the Sherman draft declared rights of the people, while three concerned the structure and power of government. Sherman's rights (p.178)guarantees were far more limited than those of Madison: the draft included no declaration of the rights of the people to keep and bear arms, against unreasonable search and seizure, to counsel and to due process of law, and no mandate on separation of church and state (hardly a surprise from a Connecticut representative).[212]

As noted, Virginia and North Carolina proposed: (1) a bill of rights, including a guarantee of the right of the people to keep and bear arms, with a declaration that a well regulated militia is necessary for a free state; and (2) a separate body of amendments relating to powers of Congress, including clarification that each state may provide for organizing and arming its own militia when Congress neglects to act. The Pennsylvania Antifederalists--including the Dissent of the Minority and the Harrisburg Convention--also proposed an arms-right guarantee and a militia-power clarification. While the Sherman draft deleted the former, it included the latter in the following language:

The last phrase concerning conscientious objectors had appeared in Madison's proposal guaranteeing the right of the people to keep and bear arms. Its placement in the Sherman draft with a state militia power was perhaps more logical, because it concerned not a "right" to bear arms, but an exemption from being "required" to bear arms in military service.

Although there is no record of the Select Committee's proceedings, Sherman's restrictive notions of freedom raised eyebrows. Senator Richard Henry Lee wrote to Samuel Adams as follows:

While the Committee did not adopt the amendment, subordination of the military to the civil power was already implicit in the text of the Constitution. Nonetheless, Sherman's alleged comment is consistent with his restrictive concept of a bill of rights.

Sherman's draft was not adopted by the House Select Committee, which instead, on July 28, reported Madison's proposals as amended by the Committee. Had the House committee intended to confirm a state militia power, Sherman's proposal or the comparable state proposals would have been appropriate. Instead, the committee reported the following: "A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms."[215]

The Select Committee did not change Madison's words that "the right of the people to keep and bear arms shall not be infringed," although it moved the philosophical declaration about a well regulated militia to its position before, rather than after, the substantive guarantee. It also inserted, consistent with the phraseology of the Virginia, New York, and North Carolina convention demands, the definition of such a militia as "composed of the body of the people."

The Select Committee version used the term "infringed" in three other instances, including two instances in which Madison's original draft had used the terms "violated" or inviolate.[216] The equal rights of conscience, and the freedom of speech, press, assembly, and petition could not be "infringed,"[217] and no state could "infringe" conscience, speech, press, or jury trial in criminal cases.[218](p.180)

Meanwhile, debate over the proposed amendments raged in the newspapers. The underlying fear against a government monopoly of arms was expressed thus: "Power should be widely diffused .... The monopoly of power, is the most dangerous of all monopolies."[219] The following reflects the understanding that the keeping and bearing of private arms contributed to a well-regulated militia:

The Second Amendment was not intended to protect the citizens having arms only in their militia capacity. Rather, it originated in part from Samuel Adams's proposal (which contained no Militia Clause) that Congress could not disarm any peaceable citizens:

C. House Debate

On July 28, 1789, Chairman Vining presented the Select Committee report. The House Committee of the Whole debated the Select Committee's proposals for over a week.

Just as in the Constitutional Convention of 1787, Roger Sherman continued to object to Bill of Rights guarantees because Congress had no power over such areas. He thought the amendment that "no religion shall be established by law" to be "altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the Constitution to make religious establishments; he would, therefore, move to have it struck out."[222]

Once again, Madison responded that delegated powers could be exercised to infringe on rights, and that explicit guarantees would prevent misconstruction:

The amendments continued to be viewed as protective of individual rights. On August 9, Representative William L. Smith of South Carolina wrote to fellow Federalist Edward Rutledge: "The Committee on Amendments have reported some, which are thought inoffensive to the Federalists & may do some good on the other side .... There appears to be a disposition in our house to agree to some, which will more effectually secure private rights, without affecting the structure of the Government."[224]

The proposals resulting in the Second Amendment were discussed on August 17, 1789. The recorded debates do not include an explanation of the scope of the right to keep and bear arms or any objection to a declaration of that right. Unfortunately, analysis of debate on any of the Bill of Rights provisions must consider that the Annals of Congress reflect "the unreliable shorthand (p.182)reports of one Thomas Lloyd, the incompetent, often inebriated stenographer who was supposed to have been recording the discussions in the House of Representatives."[225]

In any event, Lloyd's debates appear to reflect accurately the concern that an armed populace as militia contributes to a free state by reducing the need for and danger of a standing army, and the objection that Congress might rely on the conscientious objector clause as a ruse to disarm persons Congress decided are religiously scrupulous.

Elbridge Gerry clarified that the purpose of the Amendment was protection from oppressive government,[226] and thus the government should not be in a position to exclude the people from bearing arms:

Gerry argued that the federal government should have no authority to categorize any individual as unqualified under the amendment to bear arms. "Now, if we give a discretionary power to exclude those from militia duty who have religious scruples, we may as well make no provisions on this head."[228] Gerry therefore moved that the conscientious-objector clause be limited to actual members of religions sects scrupulous of bearing arms.[229] Keeping and bearing arms was a right of "the people," none of whom should thereby be disarmed under any pretense, such as the government's arbitrary determination that they are religiously scrupulous (or perhaps that they are not active members of a select militia).

In reply, James Jackson of Georgia "did not expect that all the people of the United States would turn Quakers or Moravians; consequently, one part would have to defend the other in case of invasion." The reference to "all the people" indicated again the centrality of the armed populace for defense against foreign attack. After further discussion, Gerry objected to the wording of the first part of the proposed amendment:

Gerry's words exhibit again the general sentiment that security rested on the armed populace as a whole, not on specialized bodies of armed men. The lack of a second to his proposal suggests that the keeping and bearing of arms by the citizens at large would constitute a sufficiently well regulated militia to secure a free state, and thus there was no need to make it, in Gerry's words, "the duty of the Government to provide this security."

Aedanus Burke of South Carolina then sought to add to the personal arms (p.184)guarantee the long-standing Antifederalist demand:

The motion was defeated,[231] reflecting unanimity about the right of the people to keep and bear their private arms, but allowance for a limited army.

After further debate, the Committee of the Whole rose and submitted the Select Committee Report to the House with minor changes. On August 20, the House considered what became the Second Amendment.

Debate on the exemption of religiously scrupulous persons from being compelled to bear arms highlights the sentiment that not only bearing, but also merely keeping of arms by the people was considered both a right and a duty to prevent standing armies. Thomas Scott of Pennsylvania objected that the exemption would mean that "a militia can never be depended upon. This would lead to the violation of another article in the Constitution, which secures to the people the right of keeping arms, and in this case recourse must be had to a standing army."[232]

"What justice can there be in compelling them to bear arms?" queried Elias Boudinot of New Jersey. "Now, by striking out the clause, people may be led to believe that there is an intention in the General Government to compel all its citizens to bear arms."[233] The proposed amendment was finally accepted after the insertion of the words "in person" at the end of the clause.[234]

Many of the proposed amendments were subjected to criticism. But the Second Amendment was apparently never attacked, aside from one editorial that (p.185)argued the inefficiency of the Militia Clause, never questioning the Right-to-Bear-Arms Clause. After quoting the language of the proposal as it was approved by the House, the prominent Antifederalist "Centinel" opined:

"Centinel" was, of course, Samuel Bryan, author of the Pennsylvania Dissent of the Minority, which demanded recognition of the right to bear arms for defense of self, state, and country, and for hunting. By not objecting to lack of such a list of purposes in the Second Amendment, the Antifederalists must have assumed that exercise of the right to keep and bear arms would extend to all lawful purposes. By the same token, Samuel Adams and the drafters of the New Hampshire proposal did not object to the lack of an explicit exclusion of criminals from the right to keep and bear arms, because this too was understood.

Centinel's observations indicate the understanding that the Second Amendment's Militia Clause was merely declaratory and did not protect state powers to maintain militias to any appreciable degree. That Antifederalists never attacked the Right-to-Bear-Arms Clause demonstrates that was reorganized to be recognized a full and complete guarantee of individual rights to have and use private arms. Surely a storm of protest would have ensued had anyone hinted that the right only Protected a government-armed select militia.

D. Senate Debate

"The lower house sent up amendments which held out a safeguard to personal liberty in great many instances, but this disgusted the Senate," Senator William Grayson wrote to Patrick Henry when the House transmitted its amendments to the Senate.[236] The amendments were "treated contemptuously" by Senators Gouverneur Morris of New York, Ralph Izard of South Carolina, and John Langdon of New Hampshire, who tried but failed to postpone them (p.186)until the next session.[237]

The twenty-two member Senate, which met in secret, began consideration of the amendments on September 3, 1789. It sliced out parts of what became the First Amendment, including the phrase "nor shall the rights of conscience be infringed," but rejected a motion to delete a version of First Amendment altogether.[238] The next day the Senate passed a modified amendment protecting speech, press, and petition, and recognized "the right of the people peaceably to assemble and consult for their common good ...."[239]

The Senate then considered a motion to add the following clauses to the House version of what became the Second Amendment right to keep and bear arms:

This failed by a vote of six to nine. Those favoring the clauses included Virginia Senators Richard Henry Lee and William Grayson, and Senators Pierce Butler (South Carolina), James Gunn (Georgia), John Henry (Maryland), and Paine Wingate (New Hampshire). Association of this standing army prohibition with the right of the people to keep and bear arms did not detract from the personal nature of the right, but reflected Lee's premise that "to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them ...."[241] The individual right to keep and bear arms checks and prevents oppression from a standing army.

The Senate's dim view of some amendments is reflected in a letter from Theodorick Bland Randolph to St. George Tucker, Antifederalist Virginians and (p.187)relatives of Congressmen. It stated:

The members of the majority who killed the anti-standing-army propositions[243] may have been concerned with its length as well as probably opposed the requirement that two-thirds of the Congress must authorize a standing army. However, the Senate went on to pass the individual guarantee proposed by the House but "amended to read as followeth: 'A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.'"[244]

In comparing the House version with this Senate version, the House redundantly mentions "the people" twice--once in defining "militia" as the "body of the people," and again as the entity with the right to keep and bear arms. The Senate more succinctly avoided repetition by deleting the well-recognized definition of the militia as "the body of the people."

The Senate also deleted the phrase that "no person religiously scrupulous shall be compelled to bear arms"--perhaps because the amendment depicts the keeping and bearing of arms as an individual "right" (and not as a duty) for both public and private purposes, and perhaps to preclude any constitutional authority of the government to "compel" individuals (even those without religious scruples) to bear arms for any purpose. Deletion of the clause also addressed Congressman Gerry's argument in the House that "this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms."[245](p.188)

An additional day of debate resulted in an important phrase being added to the House version of what became the Tenth Amendment: "The powers not delegated to the state by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."[246] While normally more conservative than the House, the Senate thereby made clear that "the people" have "powers" as well as "rights." By contrast, the state and federal governments have "powers" only and no "rights."[247] Only individuals have "rights." Moreover, the Senate clearly distinguished between "the states" and "the people." "Rights" of "the people," such as keeping and leaving arms, could pertain only to individual persons, not states. Finally, "powers" are either "delegated" or "reserved," while individual "rights," whether of conscience or keeping arms, cannot be "infringed."

What "powers" do "the people" have in contradistinction to "rights?" Perhaps suffrage would be a power, as would resistance to oppression and armed overthrow of tyranny. The right to keep and bear arms, as the Revolution proved, was the basis for the ultimate exercise of "power" by the people, and would hopefully render exercise of this power of the people unnecessary in the new constitutional republic.

The next day, September 8, the Senate rejected a string of amendments from the Virginia Declaration of Rights,[248] undoubtedly promoted by Lee and Grayson--the natural rights to life, liberty, and property; that "all power" is vested in "the people;" and that "the doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind."[249] Unlike the declaration of specific rights, such as the press and arms, these proposals were perceived perhaps as useless truisms or platitudes. The reservation of "power" in "the people" in the Tenth Amendment may have been intended to abbreviate some of the above principles.

Attention then turned toward amendments to limit the military power of the federal government. Renewed proposals to require two-thirds of both Houses of Congress to consent to a standing army, and limits on the terms of enlistment (p.189)of soldiers, again failed.[250] The Senate then rejected an explicit reservation of the state power to maintain militias incorporating the language of the Harrisburg, Virginia, and North Carolina conventions:

The above action highlights the clear distinction between the "right" of "the people" to keep and bear arms, and the "power" of the "state" to arm and provide for militias. Besides the linguistic differences, the individual right was considered with other individual rights, and the state power was considered with other governmental powers. The two were completely separate proposals. The Senate passed the former and rejected the latter. This demonstrates the absurdity of the argument invented in the twentieth century that by declaring the right of the people to keep and bear arms, Congress actually intended to declare the power of states to maintain militias--the very proposal Congress rejected.

John Randolph commented on the Senate action, apparently from information he received from Senator Richard Henry Lee, as follows: "A majority of the Senate were for not allowing the militia arms & if two thirds had agreed it would have been an amendment to the Constitution. They are afraid that the Citizens will stop their full career to Tyranny & Oppression."[252] In other words, even the state power to provide for arming the militia translated into the encouragement by the states of private citizens arming themselves with standard military weapons. Proponents of this amendment feared that the federal government would neglect the militia and prevent the states from mandating that the people arm themselves, thereby achieving a federal monopoly of power.

On September 9, the Senate again took up what became the Bill of Rights. (p.190)It passed a form of the First Amendment similar to the final version.[253] The Senate then rejected a proposal to add "for the common defence" after "bear arms" in the Second Amendment.[254] Had it succeeded, recognition of "the right of the people to keep and bear arms for the common defense" would have still been an individual right to have arms, but could have been interpreted as allowing arms to be kept only for common defense against foreign aggression or domestic tyranny, or that only military arms could be kept. Similarly, the earlier version of the right of the people to assemble "for their common good"[255] could have limited that right to public purposes. Rejection of both expressed an intent that keeping and bearing arms and assembly include private, as well as public, lawful purpose, and that the citizens, not the government, have freedom to choose which arms to keep and for what purposes to assemble.

The Senate then made a change in the precatory clause of the Second Amendment. The declaration that a well regulated militia is "the best security of a free state" was neutralized or perhaps strengthened to state that a well regulated militia is "necessary to the security of a free state."[256] This met the objection made in House debate that "a well regulated militia being the best security of a free State, admitted that a standing army was a secondary one."[257] The Senate then passed its final version: "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."[258]

On September 19 and 21, the House debated and agreed to the Senate amendments. A Conference Committee, including James Madison, Roger Sherman, and John Vining from the House, and Oliver Ellsworth, Charles Carroll, and William Paterson from the Senate, met and resolved final details.[259]

On September 25, 1789, the Senate agreed to the House Resolution approving the final version of the Bill of Rights and recommended it to the states (including North Carolina and Rhode Island, which had not yet ratified the Constitution) with a preamble initiated in the Senate.[260] It stated: "The (p.191)conventions of a number of the states having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added ...."[261] The Second Amendment (the fourth article of the amendments submitted to the states) as it finally passed Congress contained a declaratory clause followed by a restrictive clause: "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."

The Framers clearly distinguished between the "right[s]" of "the people" and the "powers" of the states. They also knew how to use the term "militia" when they intended to do so, and they did not in some mysterious sense mean only the "militia" when they used the term "the people." The Fifth Amendment provides in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ...." Thus, "the people" in the Second Amendment does not really mean only "the Militia, when in actual service," terms that appear in the Fifth Amendment. If keeping and bearing arms was a "right" only of "the militia, when in actual service," the Framers certainly would have so stated.

The language of the state power to maintain militias is not the individual-rights vocabulary of the Second Amendment. Congress has "power" to provide for organizing and arming the Militia, "reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress ...."[262] In other words, the "power" and "authority"--not "right"--is "reserved"--not "shall not be infringed"--to "the States respectively"--not "the people. " Just as Congress has power "to raise and support armies," "to provide and maintain a navy," and "to provide for calling forth the militia,"[263] the text of the Constitution also provides that "no state shall, without the consent of Congress, ... keep troops, or ships of war in time of peace ... or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."[264] The contrasting use of the word "keep" is revealing: no state shall "keep troops," but the people have a right to "keep ... arms." The Second Amendment does not say that "the power of the states to keep militia troops is reserved."

The distinction between the states and the people is clearly made in the (p.192)Tenth Amendment, which provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The power to raise armies is delegated to the United States and prohibited to the states, while the power over the militia is reserved exclusively to the states, except as delegated to Congress in Article I, Section 8. Finally, governmental powers are "delegated" or "reserved;" only rights retained by the people may not be "infringed." The words of the substantive guarantee of the Second Amendment apply only to individuals, never to state powers.

E. Ratification by the States

The adoption of the amendments by the states was by no means a foregone conclusion, and the ratification struggle ensued through 1791. Three positions emerged during the controversy: (1) the proposed amendments were adequate, (2) further guarantees were needed, and (3) freemen had no need of a bill of rights. None of the proponents of these three different positions ever called into question the basic, individual right of keeping and bearing arms. As it was commonly understood, the proposed Bill of Rights sought to guarantee personal and unalienable rights, but the people also retained unenumerated rights.[265] Patrick Henry, Richard Henry Lee, and others were pleased with the Bill of Rights as far as it went, but they wanted guarantees against standing armies and direct taxes.[266] Since these same prominent Antifederalists were among the (p.193)most vocal in calling for a guarantee that would recognize the individual right to have arms, it is inconceivable that they did not object to what become the Second Amendment if anyone understood it to fail to protect personal rights.

The view that the rights of freemen were too numerous to enumerate in a Bill of Rights was coupled with the argument that the ultimate protection of American liberty would be provided by the armed populace rather than by a paper bill of rights. The pro-amendment view held that both the existence of a bill of rights and an armed populace to enforce it were necessary to provide complementary safeguards. The following editorial assumes that keeping and bearing arms would contribute to a well-regulated militia, and vice versa, that militia exercises would demonstrate the people's strength and dissuade the government from infringing upon the right to keep and bear arms:

The debate over ratification of the Bill of Rights continued throughout 1790. One writer reiterated that no bill of rights could enumerate the rights of the peaceable citizen, "which are as numerous as sands upon the sea shore ...."[268] President Washington reminded members of the House of (p.194)Representatives that "a free people ought not only to be armed, but disciplined ...."[269] Still, right-to-arms provisions were not necessarily associated with the citizen's militia but were also coupled with different provisions. For instance, a widely published proposed bill of rights for Pennsylvania included a Militia Clause in a separate article from the following: "That the right of the citizens to bear arms in defence of themselves and the State, and to assemble peaceably together ... shall not be questioned."[270]

During the ratification period, the view prevailed that the armed citizenry would prevent tyranny. Theodorick Bland wrote Patrick Henry that "I have founded my hopes to the single object of securing (in terrorem) the great and essential rights of freemen from the encroachments of Power--so far as to authorize resistance when they should be either openly attacked or insidiously undermined."[271] While the proposed amendments continued to be criticized for the lack of a provision on standing armies,[272] no one questioned the right-to-bear-arms amendment.[273]

F. Rhode Island Assents

The Rhode Island Convention, which ratified the Constitution on May 29, 1790, declared: "That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state ...."[274] The section also declared against standing armies and against the quartering of soldiers in houses.[275]

A separate body of amendments concerning the powers of the government did not mention the militia. However, it declared against federal conscription as follows: "that no person shall be compelled to military duty otherwise than by voluntary enlistment, except in cases of general invasion ...."[276](p.195)

Two days before Rhode Island ratified the Bill of Rights, newspapers in that state republished its declaration of natural rights, which had been included in its recent ratification of the Constitution, recognizing "that the people have a right to keep and bear arms" and "that a well-regulated militia, includ[es] the body of the people capable of bearing arms."[277]

As more states adopted the amendments and the great debate dwindled, the opponents of a standing-army prohibition conceded that an armed citizenry, constituted as a well-regulated militia, would prevent oppression from that quarter. As "A Framer" argued in a plea addressed "To The Yeomanry of Pennsylvania":

VI. The Federal Militia Act of 1792

Following the example of state law, the federal Militia Act of May 8, 1792, required every "free able bodied white male citizen" aged eighteen through forty-five to "provide himself with a good musket or firelock," bayonet and ammunition. Horsemen were to equip themselves with a pair of pistols, ammunition, and sabre. The bill was originally introduced in the House on December 14, 1790.[279] The debates on the bill explicate the nature of a well regulated militia at a time when the Bill of Rights was still being considered by the states.

House debate began on December 16, 1790. Congressman Josiah Parker of Virginia objected that the requirement that "every man in the United States shall 'provide himself' with military accoutrements would be found impracticable, as it must be well known that there are many persons who are so poor that it is impossible they should comply with the law."[280] He proposed that the United States should pay the expense of arming such persons.(p.196)

Several members doubted that every man should be a member of the active militia, but there was a consensus that every man be armed.[281] "As far as the whole body of the people are necessary to the general defence, they ought to be armed," explained Thomas Fitzsimons of Pennsylvania.[282] James Jackson of Georgia argued that:

The House then debated Parker's motion that the United States would provide arms for persons too poor to purchase them.[284] Roger Sherman analyzed the Militia Clause of the Constitution in the same manner he had heard it explained in the Convention of 1787:

After a suggestion that the poor, minors, and apprentices be armed by the United States, the ultimate objection to this government-armed populace was expressed by Jeremiah Wadsworth of Connecticut: "Is there a man in this House who would wish to see so large a proportion of the community, perhaps one-third, armed by the United States, and liable to be disarmed by them?"[286] Masters would assist apprentices, and "as to minors, their parents or guardians (p.197)would prefer furnishing them with arms themselves, to depending on the United States when they knew they were liable to having them reclaimed."[287] A vote was then taken, and Parker's motion failed.

Fitzsimons moved to strike the words "provide himself" and to amend the bill to read that every citizen "shall be provided" with arms.[288] James Madison and others objected that this "would leave it optional with the States, or individuals, whether the militia shall be armed or not."[289] The motion lost.

Considerable debate ensued concerning persons who may be exempted from militia exercises. Under the Constitution, Hugh Williamson of North Carolina noted, "Congress is to provide for arming and disciplining the militia; but who are the militia? Such men, he presumed, as are declared so to be by the laws of the particular States, and on this principle he was led to suppose that the militia ought to consist of the whole body of citizens without exception."[290]

While the Senate met in secret and no debates were officially recorded, William Maclay's journal contains revealing portions of the debates on the bills for the military establishment and for regulating the militia. Richard Henry Lee gave what must have been familiar speeches against standing armies.[291] Senator Maclay believed that Alexander Hamilton and his faction were promoting war with the Indians and foreign powers as a "Pretext for raising an Army meant to awe our Citizens into Submission."[292] Army supporters accused the Spaniards of having "supplied the Indians with Arms and Ammunition,"[293] but argued that "it was dangerous to put Arms into the hands of the Frontier People for their defense, least they should use them against the United States."[294]

Two anecdotes by Maclay illustrate the attitudes of the day toward arms. It seems that Alexander Hamilton made insulting remarks against the militia, giving rise in the House of Representatives to "a Violent personal Attack on Hamilton By Judge [Aedanus] Burk[e] of South Carolina which the Men of the blade say must produce a duel."[296]

July 4, 1790, in New York was celebrated a day late because it fell on a Sunday. When Congress adjourned, Maclay saw that "all the Town was in Arms ... the firing of cannon and small arms with beating of Drums kept all in uproar."[297] The Senators went to President Washington's home for wine and cakes, and then to a reading of the Declaration of Independence.[298]

The United States in 1792 reflected the finalization of a unique period which began five years earlier. A Constitution with limited, enumerated powers was proposed, but opponents would not allow its passage without a commitment to adopt a declaration of individual rights, including the right to keep and bear arms. This declaration was created and ratified, but attempts to pass amendments to the Constitution's provisions on state and federal governmental powers failed. While the Second Amendment, or its equivalent, was strongly demanded in state conventions, then ratified by Congress, and passed by the states, a totally separate provision about the right of states to maintain militias failed miserably. Nonetheless, Congress enacted legislation mandating that every man be armed.

VII. Conclusion: Supreme Court Jurisprudence

A. The Power of the States

From the earliest interpretations of the Constitution to the present, it has been consistently held that the states have a concurrent power over the militia with the United States and that each state may require its able-bodied citizens to provide themselves with and keep firearms, particularly militia weapons. The position argued by Madison and other Federalists in the Virginia Ratifying Convention of 1788 has been vindicated, despite the failure of a proposed (p.199)amendment explicitly recognizing the state power to maintain and provide for arming the militia.

In 1803, St. George Tucker cited Article I, Section 8, Clause 16 and the Second Amendment in support of the proposition that "the power of arming the militia, not being prohibited to the states, respectively, by the constitution, is, consequently, reserved to them, concurrently with the federal government."[299]

The states passed militia laws in support of and to enforce the 1792 Act of Congress. For instance, Massachusetts required that every citizen "constantly keep himself furnished and provided with arms and equipments required by the laws of the United States ...."[300] Persons were fined for not keeping the arms required by law.[301] United States v. Miller[302] analyzed early state militia laws and concluded:

The Supreme Court held in Houston v. Moore[304] that the states have a reserved power to require all able-bodied males to provide themselves with standard military arms. Justice Washington noted that the Federal Militia Act of 1792 declared "what arms and accoutrements the officers and privates shall (p.200)provide themselves with."[305] The Court added:

The Court also stated that "if Congress had declined to exercise [its powers], it was competent to the state governments to provide for ... arming ... their respective militia, in such manner as they might think proper."[307]

Relying extensively on the above precedent, the Illinois Supreme Court case Dunne v. People[309] cited the Tenth Amendment in support of the following: "The power of State governments to legislate concerning the militia, existed and was exercised before the adoption of the Constitution of the United States, and as its exercise was not prohibited by that instrument, it is understood to remain with the States, subject only to the paramount authority of acts of Congress enacted in pursuance of the Constitution of the United States."[310] The court also held:

Arising out of the same labor disturbance in Chicago as in Dunne, Presser v. Illinois,[312] decided by the United States Supreme Court, held that prohibitions on unlicensed military parades "do not infringe the right of the people to keep and bear arms," adding:

By the same token, the United States may not prohibit the possession of militia arms, so as to deprive the states of their final resource for maintaining the public security, or prevent the people from performing their duty to the state governments.[314](p.202)

Justice Cardozo recalled the above in showing "the duty of the able-bodied citizen to aid in suppressing crime" in his concurring opinion in Hamilton v. Regents of the University of California.[317] The majority opinion upheld mandatory military training, including the use of automatic rifles, of students at a university based on the following:

By statutory definition, the National Guard is "that part of the organized militia of the several States" that is "armed ... wholly or partly at Federal expense" and "is federally recognized."[319] "In addition to its National Guard, if any, a State ... may, as provided by its laws, organize and maintain defense forces."[320] The U.S. Government issues arms to the National Guard, but not to the states' defense forces.[321] "So far as practicable, the same types of ... arms ... as are issued to the Army shall be issued to the Army National Guard ...."[322]

The availability of uniform arms to a portion of the state militias pursuant to the National Defense Act of 1916 greatly enhanced defense capabilities. As explained in Maryland for the Use of Levin v. United States:[323]

The states are entitled to require members of their defense forces and reserve militias to provide themselves with the same arms which are used by the National Guard. The ideal of a uniformity of arms for all militia members has been recognized since the Constitution was framed.

Based on the above, Congress has no power to prohibit possession of such militia arms as the states are entitled to require that its citizens or a part thereof furnish themselves with and keep in their homes. The states' concurrent power to organize and provide for arming their militias is a reserved power which (p.204)federal legislation may not contradict.

B. The Right of the People

Traditionally, the Supreme Court has paid little attention to the Second Amendment. It noted in the Dred Scott case that recognition of African Americans as citizens would exempt them from "police regulations" (i.e., slave codes), and allow them "to keep and carry arms wherever they went."[325] During Reconstruction, the Court stated that the rights of the people "peaceably to assemble for lawful purposes" and "of bearing arms for a lawful purpose" were not "granted" by the Constitution because they existed long before its adoption.[326] A later opinion again recognized "the right of the people to keep and bear arms" and repeated that the Second Amendment is a limitation "upon the power of Congress and the National government ...."[327]

At the turn of the century, the Court wrote of "the freedom of speech and of the press" and "the right of the people to keep and bear arms" that "the law is perfectly well settled that the first ten Amendments to the constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we inherited from our English ancestors ...."[328]

Only in United States v. Miller[329] has the High Court addressed the Second Amendment, and even then only in rudimentary form. Absent evidence in the trial court that a sawed-off shotgun "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."[330] The test was not whether the person in possession of (p.205)the arm was a member of a formal militia unit, but whether the arm "at this time" is "ordinary military equipment" or its use "could" potentially assist in the common defense.

Referring to the Militia Clause of the Constitution, the Supreme Court stated that "to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made."[331] The Court then surveyed colonial and state militia laws to demonstrate that "the Militia comprised all males physically capable of acting in concert for the common defense" and that "these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."[332]

The philosophy behind the Second Amendment was well articulated in the commentaries of Justice Joseph Story and Judge Thomas M. Cooley, which Miller approvingly cites.[333] Justice Story stated: "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."[334] Miller's reference to Judge Cooley finds him stating:

While it has not discussed the Second Amendment in any detail since Miller, the Supreme Court has recently denied that some Bill of Rights freedoms "are in some way less 'fundamental' than" others. "Each establishes a norm of conduct which the Federal Government is bound to honor--to no greater or lesser extent than any other inscribed in the Constitution .... Moreover, we know of no principled basis on which to create a hierarchy of constitutional values ...."[336] The Supreme Court has also held that "when we do have evidence that a particular law would have offended the Framers, we have not hesitated to invalidate it on that ground alone."[337]

The two 1990 Supreme Court opinions analyzed at the beginning of this article should lay to rest any lingering doubts about the Second Amendment's applicability. First, the right to keep and bear arms belongs to "the people," the same individuals whose rights are protected by the First, Fourth, and Ninth Amendments. Second, the state power to maintain a militia is defined in the Militia Clause of the text of the Constitution, and is not substantively protected by the Second Amendment.

Every term in the Second Amendment's substantive guarantee--which is not negated by its philosophical declaration about a well regulated militia--demands an individual rights interpretation. The terms "right," "the people," "keep and bear," and "infringed" apply only to persons, not states. Moreover, the Framers, supporters, and opponents of the original Constitution all agreed on the political ideal of an armed populace, and the unanimous interpretation of the Bill of Rights in Congress and by the public was that the Second Amendment guaranteed the individual right to keep and bear arms. Indeed, the very amendment which would have made explicit the state power to maintain a militia (p.207)failed completely. The language and historical intent of the Second Amendment mandates recognition of the individual right to keep and bear firearms and other personal weapons. Like those who oppose flag burning as symbolic protest, opponents of this right have the option of pressing for an amendment to a Bill of Rights no longer seen as worthwhile.

[**] Ph.D., Florida State University; J.D., Georgetown University. Attorney at Law, Fairfax, Virginia. Author of A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees (Greenwood Press 1989) and That Every Man Be Armed: The Evolution of a Constitutional Right (University of New Mexico Press 1984; reprinted by the Independent institute, 1990).

[1] Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 639-42 (1989).

[2] Id. at 644-45.

[3] As will be seen below, the Virginia Ratifying Convention proposed, and the United States Senate rejected, an amendment to the Constitution which would have stated: "That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same." 3 Jonathan Elliot, Debates in the Several State Conventions 660 (1836); Journal of the First Session of the Senate 75 (1820).

[4] U.S. Const. art II, § 2 provides: "The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States...." This provision makes clear that there is no national militia, but only a "Militia of the several States." Similarly, the Fifth Amendment provides for grand jury indictment "[E]xcept in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger...." Thus, the militia of the several states always retains its status as such, even though it may be called in the "actual service" of the United States for specified domestic purposes.

[5] Comment, Assault Rifle legislation: Unwise and Unconstitutional, 17 Am. J. Crim. Law 143 (No. 2, 1990).

[6] 494 U.S. 259 (1990) (holding the Fourth Amendment warrant requirement inapplicable to the search of a home in a foreign country).

[7] Id. at 265.

[8] Id. at 247.

[9] Id. at 288-89.

[10] Id. at 288.

[11] See generally Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 7-54 (1984) [hereinafter That Every Man Be Armed].

[12] 110 S. Ct. 2418 (1990).

[13] Id. at 2424-25.

[14] Id. at 2420.

[15] Id. at 2422-23.

[16] Id. at 2423.

[17] Perpich v. Department of Defense, 110 S. Ct. 2418, 2423 (1990).

[18] Id. at 2423-24.

[19] Id. at 2424.

[20] Perpich v. Department of Defense, 110 S. Ct. 2418 (1990).

[21] Id. at 2426.

[22] Id., quoting Dunne v. People, 94 Ill. 120 (1879) (emphasis added).

[23] Perpich, 110 S. Ct. at 2429 n.25.

[24] Id. at 2429. "[The Constitution left] under the sway of the states undelegated control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies." Id. at 2430 n.29 (quoting Selective Draft Law Cases, 245 U.S. 366, 383 (1918)).

[25] Jonathan Elliot, Debates on the Adoption of the Federal Constitution 172 (1845) [hereinafter Debates on the Constitution].

[26] Id. at 440.

[27] Id.

[28] Id. at 443.

[29] Id.

[30] Debates on the Constitution, supra note 25, at 443.

[31] Id.

[32] Id. at 444.

[33] Id.

[34] Id.

[35] Debates on the Constitution, supra note 25, at 444.

[36] Id. at 445.

[37] Id.

[38] Id. at 464.

[39] Id. at 464-65.

[40] Debates on the Constitution, supra note 25, at 465.

[41] Id.

[42] Stephen Halbrook, A Right to Bear Arms 26, 32, 46 (1989) [hereinafter A Right to Bear Arms].

[43] 5 Jonathan Elliot, Debates on the Adoption of the Federal Constitution 466 (1845) [hereinafter 5 Debates on the Constitution].

[44] Id. at 466-67.

[45] Id. at 538.

[46] Id.

[47] Id.

[48] 5 Debates on the Constitution, supra note 43, at 538.

[49] Id. at 544.

[50] Id. at 545.

[51] Id.

[52] Id.

[53] Richard M. Rollins, The Long Journey of Noah Webster 52-53 (1980).

[54] 13 Documentary History of the Ratification of the Constitution 405-406 (Kaminski and Saladine eds., 1981) [hereinafter 13 Documentary].

[55] Noah Webster, An Examination of the Leading Principles of the Federal Constitution 43 (Philadelphia 1787).

[56] Tench Coxe, An American Citizen IV, Oct. 21, 1787, in 13 Documentary supra note 54, at 433.

[57] Id. at 435.

[58] Richard H. Lee, Letters of a Federal Farmer, in 14 Documentary History of the Ratification of the Constitution 38-39 (1983).

[59] 1 Jonathan Elliot, Debates in the Several State Conventions 319-25 (1836) [hereinafter 1 Debates in the Several State].

[60] 2 Jonathan Elliot, 2 Debates in the Several State Conventions 521 (1836) [hereinafter 2 Debates in the Several State].

[61] 2 Documentary History of the Ratification of the Constitution 509 (Merrill Jensen ed., 1976) [hereinafter 2 Documentary].

[62] Id. at 336.

[63] Id. at 617.

[64] Id. at 623-24.

[65] See A Right to Bear Arms, supra note 42, at 22.

[66] Id. at 23-25. Accordingly, the very next proposal of the Dissent of the Minority was as follows:

The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.

2 Documentary, supra note 61, at 624.

[67] 2 Documentary, supra note 61, at 624.

[68] Id. at 638.

[69] Independent Gazetteer, Feb. 11, 1788, in 2 Documentary History of the Ratification of the Constitution 1695 (Merrill Jensen ed., Microform Supp. 1976).

[70] 2 Debates in the Several States, supra note 60, at 545.

[71] Id. at 545-46.

[72] 15 Documentary History of the Ratification of the Constitution 230 (John Kaminski & Gaspare Saladine eds., 1984) [hereinafter 15 Documentary].

[73] Id. at 492.

[74] Id. at 493.

[75] Pennsylvania Gazette, Feb. 20, 1788, in 2 Documentary, supra note 61, at 624.

[76] Pennsylvania Gazette, Feb. 20, 1788, supra note 69, at 1778-80.

[77] Independent Chronicle (Boston), Oct. 25, 1787, in 13 Documentary History of the Ratification of the Constitution 523 (1981).

[78] The Antifederalist Papers 75 (Morton Borden ed., 1965).

[79] Id.

[80] 2 Debates in the Several States, supra note 60, at 74.

[81] Id. at 97.

[82] A Right to Bear Arms, supra note 42, at 1-7.

[83] Debates of the Massachusetts Convention of 1788, at 86-87, 266 (Boston, 1856).

[84] See A Right to Bear Arms, supra note 42, at 1-16, 39-41.

[85] From the Boston Independent Chronicle, reprinted in The Independent Gazetteer, Aug. 20, 1789, at 2, col. 2.

[86] Id.

[87] Debates in the Several State, supra note 59, at 326. "The right to bear arms, going back to the English Bill of Rights, received recognition in the Second Amendment to the Constitution.... Counting this article, seven out of twelve of New Hampshire's proposals were ultimately accepted." Edward Dumbauld, The Bill of Rights and What it Means Today 21 n.37 (1957).

[88] A Right to Bear Arms, supra note 42, at 75.

[89] Remarks, No. II, Federal Gazette (Philadelphia), Oct. 24, 1788.

[90] No. IV, Fayetteville Gazette (N.C.), Oct. 12, 1789, at 1 col. 2-3 and 2, col. 1-2.

[91] No. VIII, Federal Gazette, Nov. 14, 1788.

[92] Id.

[93] No. XI, Federal Gazette, Nov. 28, 1788.

[94] Id. Collin also opposed amendments guaranteeing a free press and jury trial, a prohibition on general warrants and cruel and unusual punishment, and all other proposed amendments. No. XII, Federal Gazette, Dec. 2, 1788 and No. XXVIII, Feb. 16, 1789.

[95] 8 Documentary History of the Ratification of the Constitution 401 (John Kaminski & Gaspare Saladine eds., 1988) [hereinafter 8 Documentary].

[96] Winchester Gazette (Virginia), February 22, 1788, in 8 Documentary, supra note 95, at 404.

[97] Id.

[98] Id. at 404-05.

[99] Id. at 402.

[100] 3 Jonathan Elliot, Debates in the Several State Conventions 654-55 (1836) [hereinafter 3 Debates In The Several State].

[101] 9 Documentary History of the Ratification of the Constitution 769-70 John Kaminski & Gaspare Saladine eds., 1990) [hereinafter 9 Documentary].

[102] Virginia Independent Chronicle, April 30, 1788, in 9 Documentary, supra note 101 at 773-74.

[103] Richard H. Lee, Additional Letters from the Federal Farmer 53 (1788).

[104] Id. at 169.

[105] Id. at 170 (emphasis added).

[106] "A Slave", Oct. 6, 1787, in 13 Documentary, supra note 54, at 345.

[107] The Government of Nature Delineated (1788), in 2 Documentary History of the Ratification of the Constitution (Microform Supp. at 2524) (Merrill Jensen ed., 1976).

[108] Id. at 2526.

[109] State Gazette (Charleston), Sept. 8, 1788.

[110] Frank Monaghan, Heritage of Freedom 58 (1947).

[111] 9 Documentary, supra note 101, at 813.

[112] Id. at 819.

[113] Id. at 821.

[114] Id. at 813.

[115] 3 Debates in the Several State, supra note 100, at 37.

[116] Id. at 45.

[117] Id. at 51.

[118] Id. at 51-52.

[119] 3 Debates in the Several State, supra note 100, at 52.

[120] Id. at 90.

[121] Id. at 112.

[122] Id. at 168-69 (referring to U.S. Const. art I, § 8, cl. 17).

[123] Id. at 169 (referring to U.S. Const. art. I, § 8, cl. 18).

[124] 3 Debates in the Several State, supra note 100, at 206.

[125] Id. at 379.

[126] Id. at 380.

[127] Id.

[128] Sir William Keith, A Collection of Papers and Other Tracts 180 (1740).

[129] Id. at 170.

[130] Id. at 175.

[131] Sir William Keith, Two Papers on the Subject of Taxing the British Colonies in America 9 (1767).

[132] Id. at 8.

[133] Id.

[134] 9 Documentary, supra note 101, at 883.

[135] 3 Debates in the Several State, supra note 100, at 382.

[136] Id. at 386 (emphasis added).

[137] Id. at 391.

[138] Id. at 247.

[139] Id. at 418.

[140] 9 Documentary, supra note 101, at 419-20.

[141] Id. at 421.

[142] Id. at 425-26.

[143] Id. at 428.

[144] Id. at 430.

[145] 9 Documentary, supra note 101, at 440.

[146] Id. at 646.

[147] Id. at 656.

[148] Id.

[149] Id. at 657.

[150] 9 Documentary, supra note 101, at 659.

[151] 3 Mason, Papers 1068-71 (1970).

[152] 9 Documentary, supra note 101, at 21.

[153] 3 Debates in the Several State, supra note 100, at 660.

[154] 2 Debates in the Several State, supra note 60, at 545-46.

[155] New York Journal and Daily Advertiser, April 21, 1788, at 2, col. 2.

[156] 9 Documentary, supra note 101, at 813.

[157] Id. at 825.

[158] 1 Debates in the Several State, supra note 59, at 327-28.

[159] Id. at 329.

[160] Id. at 331.

[161] 4 Jonathan Elliot, Debates in the Several State Convention 242 (1836) [hereinafter 4 Debates in the Several State].

[162] Id. at 203.

[163] Id. at 244.

[164] Id. at 245.

[165] 3 John Adams, A Defense of the Constitutions of Government of the United States of America 471-72 (1787-88) [hereinafter 3 Defense of the Constitutions]. Newspapers of the time alluded to Rome's disarming of conquered peoples. The Massachusetts Centinel, April 11, 1787, recalled "the old Roman Senator, who after his country subdued the commonwealth of Carthage, had made them deliver up ... their arms ... and rendered them unable to protect themselves ...." 13 Documentary, supra note 54, at 79.

[166] 3 A Defense of the Constitutions, supra note 165, at 474.

[167] Id. at 475.

[168] Letter to William S. Smith (1787), in Thomas Jefferson, On Democracy 31-32 (S. Padover ed., 1939). In his influential Letter of 1788, Luther Martin stated: "By the principles of the American revolution arbitrary power may, and ought to be, resisted even by arms, if necessary." 1 Debates in the Several State, supra note 59, at 382. See New York Journal, Aug. 14, 1788, at 2, col. 4 (the people will resist arbitrary power). A writer in the Pennsylvania Gazette, April 23, 1788, in Documentary History of the Ratification of the Constitution (Microform Supp.) at 2483 (Merrill Jensen ed., 1976), criticized "the loyalists in the beginning of the late war, who objected to associating, arming and fighting, in defense of our liberties, because these measures were not constitutional. A free people should always be left ... with every possible power to promote their own happiness."

[169] 1 David Ramsay, The History of the American Revolution xiii (Liberty Classics ed., 1990) [hereinafter 1 History of the American Revolution].

[170] 13 Papers of James Madison 233 (1981).

[171] 1 The History of the American Revolution, supra note 169, at 176.

[172] Connecticut Courant, July 17, 1775, at 2, col. 1.

[173] 1 The History of the American Revolution, supra note 169, at 177. Gage's proclamation, issued on June 19, 1775, stated:

Whereas notwithstanding the repeated assurances of the selectmen and others, that all the inhabitants of the town of Boston had bona fide delivered their fire arms unto the persons appointed to receive them, though I had advices at the same time of the contrary, and whereas I have since had full proof that many had been perfidious in this respect, and have secreted great numbers: I have thought fit to issue this proclamation, to require of all persons who have yet fire arms in their possession immediately to surrender them at the court house, to such persons as shall be authorized to receive them; and hereby declare that all persons in whose possession any fire arms may hereafter be found, will be deemed enemies to his majesty's government.

New York Journal, Aug. 31, 1775, at 1, col. 4.

[174] 1 The History of the American Revolution, supra note 169, at 243.

[175] Id. at 178.

[176] Id. at 181.

[177] Id. at 190.

[178] Id. at 207.

[179] 1 The History of the American Revolution, supra note 169, at 207.

[180] Robert Rutland, The Birth of the Bill of Rights 196 (1962).

[181] James Monroe Papers, New York Public Library, Miscellaneous Papers and Undated Letters.

[182] Robert Rutland, James Madison: The Founding Father 59-60 (1987).

[183] James Madison, Notes for Speech in Congress, June 8, 1789, in 12 Madison Papers 193-94 (Robert Rutland ed., 1979). In a letter to Edmund Pendleton, Oct. 20, 1788, Madison referred to proposed amendments as "those further guards for private rights ...." 4 Madison Papers 60 (Robert Rutland ed., 1979) (abbreviations in original).

[184] An Act Declaring the Rights and Liberties of the Subject, 1 W. & M., Sess. 2, cl. 2 (1689).

[185] 4 Documentary History of the First Federal Congress 9-10 (Charlene B. Bickford & Helen E. Veit eds., 1986) [hereinafter 4 Documentary of the First Federal Congress].

[186] Id. at 10.

[187] Id.

[188] Id.

[189] Id.

[190] Bill for Preservation of Deer (1785), in 2 Jefferson, Papers 443-44 (Julian Boyd ed., 1951).

[191] "One species of fire-arm, the pistol, is never called a gun." Noah Webster, An American Dictionary of the English Language (1828). Webster, a prominent Federalist from 1787, also defined "bear" as "to carry" or "to wear ... as, to bear a sword, a badge, a name; to bear arms in a coat." Id.

[192] 4 Documentary of the First Federal Congress, supra note 185, at 11.

[193] Id.

[194] Id.

[195] Id. at 12.

[196] As stated in Russell L. Caplan, The History and Meaning of the Ninth Amendment, The Rights Retained by the People 278-79 & n. 142 (1989):

Madison's distinction between powers and rights assumed a sharply definable boundary between governmental and individual discretion. For Madison, a power was a delegated capacity allowing the government to perform certain kinds of acts .... It is Madison's consistent usage, which eliminated the ambiguous concept of state rights as referring to both governmental and personal rights, replacing it with the clearer power/right dichotomy, that was adopted with the Bill of Rights.

[197] 1 Annals of Congress 436-37 (Joseph Gales & William Seaton eds., 1834) [hereinafter 1 Annals].

[198] Id. at 442.

[199] Id. at 438.

[200] Letter from Fisher Ames to Thomas Dwight (June 11, 1789), in 1 Works of Fisher Ames 52-53 (1854).

[201] Ames to F.R. Minoe, June 12, 1789, id. at 53-54.

[202] Letter from Senator William Grayson to Patrick Henry, (June 12, 1789), in 3 Patrick Henry 391 (1951). See also Letter from Joseph Jones to James Madison, June 24, 1789, in 12 Madison Papers 258 (Robert Rutland ed., 1978) (the amendments are "calculated to secure the personal rights of the people ...."); Letter from William L. Smith to Edward Rutledge (Aug. 9, 1789), in 79 S.C. Hist. Mag. 14 (1968) (the amendments "will effectually secure private rights ....").

[203] Creating the Bill of Rights: The Documentary Record from the First Federal Congress 253 (Helen E. Veit et al. ed., 1991) [hereinafter Creating the Bill of Rights].

[204] Federal Gazette, June 18, 1789, at 2, col. 1. Madison's proposals had been published two days before in the same paper. Federal Gazette, June 16, 1789, at 2, col. 2-3.

[205] Letter from Tench Coxe to Madison (June 18, 1789), in 12 Madison Papers 239-40 (1978).

[206] Letter from James Madison to Tench Coxe (June 24, 1789), id. at 257.

[207] See, e.g., New York Packet, June 23, 1789, at 2, col. 1-2; Massachusetts Centinel (Boston), July 4, 1789, at 1, col. 2. Coxe's Remarks on the Second Part of the Amendments, which appeared in the Federal Gazette, June 30, 1789, at 2 col. 1-2, exposited what is now the Ninth Amendment as follows:

It has been argued by many against a bill of rights, that the omission of some in making the detail would one day draw into question those that should not be particularized. It is therefore provided, that no inference of that kind shall be made, so as to diminish, much less to alienate an ancient tho' unnoticed right, nor shall either of the branches of the Federal Government argue from such omission any increase or extension of their powers.

Three decades later, Coxe was still writing on the right to keep and bear arms. He referred to "the right to own and use arms and consequently of self-defense and of the public militia power ...." Democratic Press (Philadelphia), Jan. 23, 1823, at 2, col. 2. "Arms" included muskets, rifles, pistols, and swords. See, e.g., Democratic Press, Feb. 2, 1811, at 2.

[208] Federal Gazette, July 2, 1789, at 2, col. 1.

[209] Letter from Samuel Nasson to George Thatcher, in Creating the Bill of Rights, supra note 203, at 260-61 (Emphasis added and spelling and punctuation corrected). For Nasson's earlier correspondence with Thatcher, see id. at 251.

[210] Id. at 241.

[211] The other members included Abraham Baldwin, Aedanus Burke, Nicholas Gilman, George Clymer, Egbert Benson, Benjamin Goodhue, Elias Boudinot, and George Gale. 4 Documentary History of the First Federal Congress, supra note 185, at 4.

[212] James Hutson, The Bill of Rights: The Roger Sherman Draft, This Constitution, No. 18, at 36 (Spring/Summer 1988). The draft was discovered in 1987.

[213] Id.

[214] Letter from Richard Henry Lee to Samuel Adams (Aug. 8, 1789) in Creating the Bill of Rights, supra note 203, at 272.

[215] 4 Documentary of the First Federal Congress, supra note 185, at 28.

[216] Cf. 4 Documentary of the First Federal Congress, supra note 185, at 10-11 with 28-29.

[217] Id. at 28.

[218] Id. at 29.

[219] Political Maxims, New York Daily Advertiser, Aug. 15, 1789, at 2, col. 1. See also letter from Patrick Henry to Richard Henry Lee (Aug. 28, 1789), in 3 Patrick Henry, supra note 202, at 398. "For Rights, without having power and might is but a shadow." Id.

[220] Independent Gazetteer (Philadelphia), Aug. 18, 1789, at 3, col. 1.

[221] From the Boston Independent Chronicle, Independent Gazetteer, Aug. 20, 1789, at 2, col. 2.

[222] 1 Annals, supra note 197, at 729-30.

[223] Id. at 730.

[224] Creating the Bill of Rights, supra note 203, at 272-73.

[225] James Hutson, The Bill of Rights: The Roger Sherman Draft, This Constitution, No. 18, at 36 (Spring/Summer 1988).

[226] Concerning the proposed preamble phrase, "government being intended for the benefit of the people," Gerry responded:

This holds up an idea that all the Governments of the earth are intended for the benefit of the people. Now, I am so far from being of this opinion, that I do not believe that one out of fifty is intended for any such purpose. I believe the establishment of most Governments is to gratify the ambition of an individual, who, by fraud, force, or accident, had made himself master of the people. If we contemplate the history of nations, ancient or modern, we shall find they originated either in fraud or force, or both. If this is demonstrable, how can we pretend to say that Governments are intended for the benefit of those who are oppressed by them.

1 Annals, supra note 197, at 717-18. Given this political realism, the right of the people to keep and bear arms was considered by the founders as necessary to check oppressive government.

[227] 1 Annals, supra note 197, at 749-50.

[228] Id. at 750.

[229] Id.

[230] Id. at 751.

[231] Id. at 752.

[232] 1 Annals, supra note 197, at 766-67.

[233] Id. at 767. Actually, the opposite may be inferred by the eventual deletion of this part of the amendment, the purpose of which was to guarantee the individual "right" to keep and bear arms rather than to create a "duty" to do so. Arguably, this deletion was meant to preclude any constitutional power of the government to compel any person to bear arms rather than to exempt only the religiously scrupulous. See John R. Graham, A Constitutional History of the Military Draft 45-50 (1971) (compulsory military service confined to the militia; individual right to keep and bear arms prevents military despotism).

[234] 1 Annals, supra note 197, at 767.

[235] Centinel Revived, No. xxix, Independent Gazetteer, Sept. 9, 1789, at 2, col. 2.

[236] Letter from William Grayson to Patrick Henry (Sept. 29, 1789), in 3 Patrick Henry 406 (1951).

[237] 9 Documentary History of the First Federal Congress 133 (Kenneth R. Bowling & Helen E. Veit eds., 1988) [hereinafter 9 Documentary of the First Federal Congress].

[238] Journal of the First Session of the Senate 70 (Washington, D.C., 1820) [hereinafter Journal of the First Session].

[239] Id. at 71.

[240] Id.

[241] Richard H. Lee, Additional Letters from the Federal Farmer 170 (1788).

[242] Letter from Theodoricle Bland Randolph to St. George Tucker (Sept. 9, 1789), (spelling corrected) in Creating the Bill of Rights, supra note 203, at 293.

[243] Those voting against the clauses included Senators Carroll, Dalton, Ellsworth, Elmer, Johnson, King, Paterson, Read, and Schuyler. Journal of the First Session, supra note 238, at 71.

[244] Id.

[245] 1 Annals supra note 197, at 750.

[246] Journal of the First Session, supra note 238, at 73. Actually, the House voted to insert "or to the people" in the same place, but for some reason the phrase was not included in the final House resolution. 4 Documentary of the First Federal Congress, supra note 185, at 31 n.34.

[247] See, e.g., U.S. Const. art. I, § 8 ("the Congress shall have power"); art. II, § 1 ("the executive power"); art. III, § 1 ("the judicial power").

[248] The Virginia Declaration of Rights (1776) declared the "inherent rights" of individuals to life, liberty, and property (§ 1), and that "all power is vested in, and consequently derived from, the people" (§ 2).

[249] Journal of the First Session, supra note 238, at 74.

[250] Id. at 75.

[251] Id.

[252] Letter from John Randolph to St. George Tucker (Sept. 11, 1789), in Creating the Bill of Rights, 293 (Helen Veit ed., 1991). Attribution of this information to Lee is suggested in Kenneth Bowling, A Tub to the Whale: The Founding Fathers and Adoption of the Federal Bill of Rights 12 (Va. Com. on Bicent. of U.S. Const., n.d.).

[253] Journal of the First Session, supra note 238, at 77.

[254] Id. While the minutes do not reflect the makers of motions, and no recorded vote was taken on the above, a recorded vote on another matter the same day reveals the following Senators present: Bassett, Carroll, Dalton, Ellsworth, Grayson, Gunn, Henry, Johnson, Izard, King, Lee, Morris, Paterson, Read, Schuyler, and Wingate.

[255] Id. at 71.

[256] Id. at 77.

[257] 1 Annals, supra note 197, at 780 (statement of Congressman Gerry).

[258] Journal of the First Session, supra note 238, at 77.

[259] 4 Documentary of the First Federal Congress, supra note 185, at 8.

[260] Id. at 43.

[261] Id. at 45.

[262] U.S. Const. art. I, § 8, cl. 16.

[263] Id. at cls. 12, 13, and 15.

[264] Id. at § 10, cl. 3.

[265] "The whole of that Bill [of Rights] is a declaration of the right of the people at large or considered as individuals .... [I]t establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Letter from Albert Gallatin to Alexander Addison (Oct. 7, 1789) (Manuscript in N.Y. Hist. Soc., A.G. Papers 2).

But there are some rights too essential to be delegated--too sacred to be infringed. These each individual reserves to himself; in the free enjoyment of these the whole society engages to protect him .... All these essential and sacred rights, it would be difficult if not impossible, to recount, but some, in every social compact, it is proper to enumerate, as specimens of many others ....

An Idea of a Constitution, Independent Gazetteer, Dec. 28, 1789, at 3, col. 3. See also, The Scheme of Amendments, Independent Gazetteer, March 23, 1789, at 2, col. 1: "The project of muffling the press, which was publicly vindicated in this town [Boston], so far as to compel the writers against the government, to leave their names for publication, cannot be too warmly condemned." Registration of persons for exercise of basic freedoms was considered to be infringement.

[266] Patrick Henry "is pleased with some of the proposed amendments; but still asks for the great desideratum, the destruction of direct taxes." Letter from Edmund Randolph to James Madison (Aug. 18, 1789), in 12 Madison Papers 345 (1978). Jefferson was dissatisfied with the Bill of Rights, but did not object to the arms-bearing provision. Letter from Jefferson to Madison, Id. at 363-64. The Bill of Rights was "short of some essentials, as Election interference & Standing Army & C ...." Letter from Richard Henry Lee to Charles Lee (Aug. 28, 1789), in 2 Letters of Richard Henry Lee 499 (1914). Most of those in the Virginia House who opposed the adoption of the amendments "are not dissatisfied with the amendments as far as they go" but wanted delay to prompt an amendment on direct taxes. Letter from Hardin Burnley to Madison (Nov. 5, 1789), in 12 Madison Papers 460 (1978).

In the Virginia Senate, there was extensive criticism of the proposed free speech guarantee and other amendments as too narrow, but no one questioned the right to bear arms provision. Objections to Articles, Va. Sen. J. 61-65 (Dec. 12, 1789). Virginia forestalled adoption of the Bill of Rights until the end of 1791. Nor did the Massachusetts General Court, which rejected the Bill of Rights, object to the arms-bearing provision in its verbose Report of the Committee of the General Court on Further Amendments of early 1790. However, the report urged an amendment which would have recognized a state power to veto Congressional action establishing a "system for forming the militia" or making an "establishment of troops in a time of peace." Massachusetts and the First Ten Amendments 28 (D. Myers ed., 1936).

[267] Gazette of the United States, Oct. 14, 1789, at 211, col. 2.

[268] "A bill of rights for freemen appears to be a contradiction in terms.... [I]n a free country, every right of human nature, which are as numerous as sands upon the sea shore, belong to the quiet, peaceable citizen." Federal Gazette, Jan. 5, 1790, at 2, col. 3.

"The absurdity of attempting by a bill of rights to secure to freemen what they never parted with, must be self-evident. No enumeration of rights can secure to the people all their privileges ...." Federal Gazette, Jan. 15, 1790, at 3, col. 3. This article ridiculed a bill of rights as analogous to conveying a house and lot but excepting out of the grant an enumeration of other houses and lots retained by the seller.

[269] Speech from President Washington to the House of Representatives (Jan. 7, 1790), in Independent Chronicle (Boston), Jan. 14, 1790, at 3.

[270] Providence Gazette & Country J., Jan. 30, 1790, at 1.

[271] March 19, 1790, in 3 Patrick Henry 417-18 (1951).

[272] "A Well regulated militia is the best defence to a free people, a standing army in time of peace are not equal to a well regulated militia." Political Maxims, Independent Gazetteer, July 24, 1790, at 2, col. 1. "Where a standing army is established, the inclinations of the people are but little regarded." Political Maxims, Independent Gazetteer, July 31, 1790, at 2, col. 2.

[273] E.g., Summary of the Principal Amendments Proposed to the Constitution, (on file with the College of William & Mary, Tucker--Coleman Collection, Notebook VI, at 212-22).

[274] 1 Debates in the Several State, supra note 59, at 335.

[275] Id.

[276] Id. at 336.

[277] Providence Gazette and Country J., June 5, 1790, at 23.

[278] Independent Gazetteer, Jan. 29, 1791, at 2, col. 3.

[279] See 5 Documentary History of the First Federal Congress 1458-59 (1986).

[280] 2 Annals of Congress 1804 (Dec. 16, 1790) [hereinafter 2 Annals].

[281] Id. at 1805-06.

[282] Id. at 1806.

[283] Id. at 1806.

[284] Id. at 1807-08.

[285] 2 Annals, supra note 280, at 1808.

[286] Id. at 1809.

[287] Id.

[288] Id.

[289] Id.

[290] 2 Annals, supra note 280, at 1821-22.

[291] 9 Documentary of the First Federal Congress, supra note 237, at 243, 250.

[292] Id. at 385, 395.

[293] Id. at 245.

[294] Id. at 246.

[295] Id. at 246-47.

[296] 9 Documentary of the First Federal Congress, supra note 237, at 101 n.7, 231.

[297] Id. at 312.

[298] Id.

[299] 1 Blackstone's Commentaries, App., 273 (St. George Tucker ed., 1803).

[300] Mass. Acts 1809, ch. 108.

[301] See e.g., Commonwealth v. Annis, 9 Mass. 31 (1812). See Militia, 34 Am. Dig. Cent. Ed., 2878 (1902) ("Arms and Equipments").

[302] 307 U.S. 174 (1939).

[303] Id. at 178-79 (emphasis added).

[304] 18 U.S. 1 (1820).

[305] Id. at 14.

[306] Id. at 16-17.

[307] Id. at 21.

[308] Id. at 51-52.

[309] 94 Ill. 123, 126 (1879).

[310] Id. at 126. Also relying on Houston v. Moore, 18 U.S. (1 Wheat) 1 (1820), for the same proposition is People v. Hill, 27 N.E. 789, 790 (N.Y. 1891). See also State v. Johnson, 175 N.W. 589, 597 (Minn. 1919) (state constitution allowing Legislature to define the militia and federal Second Amendment indicate that "certain military policy is reserved to the states.").

[311] 94 Ill. at 132-33.

[312] 116 U.S. 252 (1886).

[313] Id. at 265.

[314] Local authorities have a traditional power to require citizens to arm themselves and assist in law enforcement. In United States v. Fenwick, 25 F. Cas. 1062, 1964 (C.C. D.C. 1836) (No. 15,086), the court instructed the jury "[t]hat the marshal has a right to take the posse, and to call on all citizens to aid him in arresting the rioters, and that the citizens had a right to arm themselves."

State law may require any person to arm and assist in law enforcement. "The militia are composed of men of military age, whereas the posse comitatus is composed of all able-bodied persons of sound mind and of sufficient ability to assist the sheriff, and may be younger or older than the military age." Worth v. Craven County Comm'rs., 24 S.E. 778, 779 (N.C. 1896).

Chapin v. Ferry, 28 P. 754, 757 (Wash. 1891) found that a statute authorizing the sheriff or other officials to call out "an armed force" to suppress rioters referred to the posse comitatus an not the National Guard. The court noted that the statute:

is merely the reenactment of the common law .... It has always been the duty of magistrates and peace officers to preserve the public peace, even to the extent of calling to their aid every person within their jurisdiction .... That the force thus called out should be armed in some way would seem to go without saying ....

Id. at 756.

[315] 164 N.E. 726 (1928).

[316] Id. at 727.

[317] 293 U.S. 245, 265 n.1 (1934).

[318] Id. at 260. Besides the Second Amendment, the court cited as authority Houston v. Moore, 18 U.S. 1, 16-17 (1820), Dunne v. People, 94 Ill. 120, 129 (1879), and Presser v. Illinois, 116 U.S. 252 (1886).

[319] 32 U.S.C. § 101(4), (6) (1991).

[320] 32 U.S.C. § 109(c) (1991).

[321] 32 U.S.C. § 702 (1991).

[322] 32 U.S.C. § 701 (1991).

[323] 381 U.S. 41 (1965).

[324] Id. at 46-47.

[325] Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1856).

[326] United States v. Cruikshank, 92 U.S. 542, 551, 553 (1876).

[327] Presser v. Illinois, 116 U.S. 252, 265 (1886). Miller v. Texas, 153 U.S. 535, 538 (1894) repeats that "the restriction of" the Second and Fourth Amendments operate "upon the federal power." In Cruikshank, Presser, and Miller, the Court refused to find First, Second, or Fourth Amendment protection against private conspiracies or state action, but did not consider whether the guarantees are incorporated into the Fourteenth Amendment so as to limit state action.

[328] Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).

[329] 307 U.S. 174 (1939).

[330] 307 U.S. at 178. Since no factual record was made in the trial court that a "sawed-off" shotgun could have militia uses the Court did not consider whether the tax and related registration requirements of the National Firearms Act violated the Second Amendment. However, the Court has held of a newspaper tax: "It is a license tax--a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution." Murdock v. Pennsylvania, 319 U.S. 106, 113 (1943). see Thomas v. Collins, 323 U.S. 516, 538-40 (1945) (state may not require registration of persons who exercise First Amendment rights); Minneapolis Star v. Minnesota Comm'r of Rev., 460 U.S. 575 (1983) (special tax on only a few newspapers invalid).

[331] 307 U.S. at 178.

[332] Id. at 179.

[333] Id. at 182 n.3.

[334] 2 Joseph Story, Commentaries on the Constitution 646 (5th ed. 1891). "One of the ordinary modes, by which tyrants accomplish their purpose without resistance is, by disarming the people, and making it an offense to keep arms ...." Joseph Story, A Familiar Exposition of the Constitution of the United States 264 (1893).

[335] Thomas Cooley, Constitutional Limitations 729 (8th ed. 1927). Thomas Cooley, General Principles of Constitutional Law 281-82 (2d ed. 1891) states further:

The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.

The right is General--It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent.... But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people from whom the militia must be taken shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.

[336] Valley Forge Christian College v. Americans United, 454 U.S. 464, 484 (1982). The Court stated in Ullmann v. United States, 350 U.S. 422, 426-29 (1956):

This constitutional protection must not be interpreted in a hostile or niggardly spirit .... Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States ....

As no constitutional guarantee enjoys preference, so none should suffer subordination or deletion .... To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.

[337] Minneapolis Star v. Minnesota Comm'r of Rev., 460 U.S. 575, 583-84 n.6 (1983).

THE RIGHT OF THE PEOPLE OR THE POWEROF THE STATE: BEARING ARMS, ARMINGMILITIAS, AND THE SECOND AMENDMENT[*]

I. Introduction

II. The Constitutional Convention of 1787

III. The Struggle for Ratification of the Constitution

A. The Pennsylvania Convention and the Dissent of the Minority

B. The Federalist Response

C. Samuel Adams' Proposal at the Massachusetts Convention

D. "Congress Shall Never Disarm Any Citizen": The New Hampshire Demands

E. "Things So Clearly Out of the Power of Congress": Debate in the Public Forum

F. "That Every Man Be Armed": The Virginia Convention

G. The New York Convention

H. The North Carolina Convention

IV. The Armed Populace: Philosophical and Pre-RevolutionaryInfluences

V. The Adoption of the Bill of Rights

A. Madison's Proposed Amendments

B. Action by the House Select Committee

C. House Debate

D. Senate Debate

E. Ratification by the States

F. Rhode Island Assents

VI. The Federal Militia Act of 1792

VII. Conclusion: Supreme Court Jurisprudence

A. The Power of the States

B. The Right of the People

THE RIGHT OF THE PEOPLE OR THE POWER
OF THE STATE: BEARING ARMS, ARMING
MILITIAS, AND THE SECOND AMENDMENT[*]

IV. The Armed Populace: Philosophical and Pre-Revolutionary
Influences