From: rdh@sli.com (Robert D. Houk)
Subject: Right to Keep and Bear Arms -- U.S. Senate Report, Part 1
Reply-To: rdh@sli.com (or uunet!sli!rdh)
Organization: Software Leverage, Inc. Arlington, Ma
Distribution: talk
Date: Tue, 17 Nov 1992 02:28:20 GMT

97th Congress
 2d Session		   COMMITTEE PRINT




     T H E   R I G H T   T O   K E E P   A N D   B E A R   A R M S

			       ________


				REPORT
				of the
		   SUBCOMMITTEE ON THE CONSTITUTION
				of the
		      COMMITTEE ON THE JUDICIARY
			 UNITED STATES SENATE
		        NINETY-SEVENTH CONGRESS
			    SECOND SESSION



	    <Emblem: Eagle with shield clenching shock & arrows>


			     FEBRUARY, 1982


	Printed for the use of the Committee on the Judiciary

				 ____

		    U.S. GOVERNMENT PRINTING OFFICE
88-618 O
			WASHINGTON : 1982

For sale by the Superintendent of Documents,
U. S. Government Printing Office
Washington, D.C. 20402




		       COMMITTEE ON THE JUDICIARY

		STROM THURMOND, South Carolina, Chairman
CHARLES McC. MATHIAS, Jr., Maryland	JOSEPH R. BIDEN, Jr., Delaware
PAUL LAXALT, Nevada			EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah			ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas			HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming		DENNIS DeCONCINI, Arizona
JOHN P. EAST, North Carolina		PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa		MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama		HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania
		Vinton DeVane Lide, Chief Counsel
		Quentin Crommelin, Jr., Staff Director



		    SUBCOMMITTEE ON THE CONSTITUTION

		ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina		DENNIS DeCONCINI, Arizona
CHARLES E. GRASSLEY, Iowa		PATRICK J. LEAHY, Vermont
		Stephen J. Markman, Chief Counsel and Staff Director
		Randall Rader, General Counsel
		Peter E. Ornsby, Counsel
		Robert Feidler, Minority Counsel




			    C O N T E N T S

			       _________


Preface, by Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary
  Committee, Subcomittee on the Constitution, from the State of Utah
Preface by Senator Dennis DeConcini, ranking minority member, U.S.
  Senate Judiciary Committee, Subcommittee on the Constitution, from
  the State of Arizona
History: Second amendment right to "keep and bear arms"
Appendix: Case law
Enforcement of Federal firearms laws from the perspective of the
  second amendment
Other views of the second amendment:
  Does the Second Amendment mean what it says?, by David J. Steinberg,
    executive director, National Council for a Responsible Firearms
    policy.
  National Coalition to ban handguns, statement on the Second Amend-
    ment, by Michael K. Beard, executive director, and Samuel S. Fields,
    legal affairs coordinator, National Coalition to Ban Handguns.
  Historical Bases of the Right to Keep and Bear Arms, by David T. Hardy,
    partner in the Law Firm Sando & Hardy.
  The Fourteenth Amendment and the Right to Keep and Bear Arms: The
    Intent of the Framers, by Stephen P. Halbrook, PH. D., attorney and
    counselor at law.
  The Second Amendment to the United States Constitution Guarantees an
    Individual Right To Keep and Bear Arms, by James J. Featherstone,
    Esq., General Counsel, Richard E. Gardiner, Esq., and Robert Dowlut,
    Esq., Office of the General Counsel, National Rifle Association of
    America.
  The Right to Bear Arms: The Development of the Americal Experience,
    by John Levin, assistant professor, Chicago-Kent College of Law,
    Illinois Institute of Technology.
  Standing Armies and Armed Citizens: An Historical Analysis of The
    Second Amendment, by Roy G. Weatherup, J.D., 1972 Standford Univer-
    sity; member of the California Bar.
  Gun control legislation, by the Committee on Federal Legislation, the
    Association of the Bar of the City of New York.

  [[Note: Forget it - if you wanna see all these "other views", go buy
    the book! I'm tired of typing!  --RDH]]




			     P R E F A C E

			       ________

	   "To preserve liberty, it is essential that the whole body of
	the people always possess arms, and be taught alike, espe-
	cially when young, how to use them." (Richard Henry Lee,
	Virginia delegate to the Continental Congress, initiator of
	the Declaration of Independence, and member of the first
	Senate, which passed the Bill of Rights.)
	   "The great object is that every man be armed . . . Every-
	one who is able may have a gun." (Patrick Henry, in the
	Virginia Convention on the ratification of the Constitu-
	tion.)
	   "The advantage of being armed . . . the Americans pos-
	sess over the people of all other nations . . . Notwithstand-
	ing the military establishments in the several Kingdoms of
	Europe, which are carried as far as the public resources
	will bear, the governments are afraid to trust the people
	with arms." (James Madison, author of the Bill of Rights,
	in his Federalist Paper No. 26.)
	   "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." (Second Amendment to the
	Constitution.)

   In my studies as an attorney and as a United States Senator, I
have constantly been amazed by the indifference or even hostility
shown the Second Amendment by courts, legislatures, and com-
mentators. James Madison would be startled to hear that his recog-
nition of a right to keep and bear arms, which passed the House by
a voice vote without objection and hardly a debate, has since been
construed in but a single, and most ambiguous, Supreme Court
decision, whereas his proposals for freedom of religion, which he
made reluctantly out of fear that they would be rejected or nar-
rowed beyond use, and those for freeedom of assembly, which passed
only after a lengthy and bitter debate, are the subject of scores of
detailed and favorable decisions. Thomas Jefferson, who kept a
veritable armory of pistols, rifles and shotguns at Monticello, and
advised his nephew to forsake other sports in favor of hunting,
would be astounded to hear supposed civil libertarians claim fire-
arm ownership should be restricted. Samuel Adams, a handgun
owner who pressed for an amendment stating that the "Constitu-
tion shall never be construed . . . to prevent the people of the
United States who are peaceable citizens from keeping their own
arms," would be shocked to hear that his native state today im-
poses a year's sentence, without probation or parole, for carrying a
firearm without a police permit.
   This is not to imply that courts have totally ignored the impact
of the Second Amendment in the Bill of Rights. No fewer than
twenty-one decisions by the courts of our states have recognized an
individual right to keep and bear arms, and a majority of these
have not only recognized the right but invalidated laws or regula-
tions which abridged it. Yet in all too many instances, courts or
commentators have sought, for reasons only tangentially related to
constitutional history, to contrue this right out of existence. They
argue that the Second Amendment's words "right of the people"
mean "a right of the state"--apparently overlooking the impact of
those same words when used in the First and Fourth Amendments.
The "right of the people" to assemble or to be free from unreason-
able searches and seizures is not contested as an individual guaran-
tee. Still they ignore consistency and claim that the right to "bear
arms" relates only to military uses. This not only violates a consist-
ent constitutional reading of "right of the people" but also ignores
that the second amendment protects a right to "keep" arms. These
commentators contend instead that the amendment's preamble re-
garding the necessity of a "well regulated militia . . . to a free
state" means that the right to keep and bear arms applies only to a
National Guard. Such a reading falis to note that the Framers used
the term "militia" to relate to every citizen capable of bearing
arms, and that Congress has established the present National
Guard under its power to raise armies, expressly stating that it
was not doing so unders its pwer to organize and arm the militia.
   When the first Congress convened for the purpose of drafting a
Bill of Rights, it delegated the task to James Madison. Madison did
not write upon a blank tablet. Instead, he obtained a pamphlet
listing the State proposals for a bill of rights and sought to produce
a briefer version incorporating all the vital proposals of these. His
purpose was to incorporate, not distinguish by technical changes,
proposals such as that of the Pennsylvania minority, Sam Adams,
or the New Hampshire delegates. Madison proposed among other
rights that "That 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." In the House, this was intially modified so that the
militia clause came before the proposal recognizing the right. The
proposals for the Bill of Rights were then trimmed in the interests
of brevity. The conscientious objector clause was removed following
objections by Elbridge Gerry, who complained that future Congress-
es might abuse the exemption to excuse everyone from military
service.
   The proposal finally passed the House in its present form: "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.:" In this form it was submitted into the Senate, which
passed it the following day. The Senate in the process indicated tis
intent that the right be an individual one, for private purposes, by
rejecting an amendment which would have limited the keeping and
bearing of arms to bearing "For the common defense".
   The earliest American constitutional commentators concurred in
giving this broad reading to the amendment. When St. George
Tucker, later Chief Justice of the Virginia Supreme Court, in 1803
published an edition of Blackstone annotated to American law, he
followed Blackstone's citation of the right of the subject "of having
arms suitable to their condition and degree, and such as are al-
lowed by law" with a citation to the Second Amendment, "And this
without any qualification as to their condition or degree, as is the
case in the British government." William Rawle's "View of the
Constitution" published in Philadelphia in 1825 noted that under
the Second Amendment: "The prohibition is general. No clause in
the Constitution could by a rule of construction be conceived to
give to Congress a power to disarm the people. Such a flagitious
attempt could only be made under some general pretense by a
state legislature. But if in blind pursuit of inordinate power, either
should attempt it, this amendment may be appealed to as a re-
straint on both." The Jefferson papers in the Library of Congress
show that both Tucker and Rawle were friends of, and corre-
sponded with, Thomas Jefferson. Their views are those of contem-
poraries of Jefferson, Madison and others, and are entitled to spe-
cial weight. A few years later, Joseph Story in his "Commentaries
on the Constitution" considered the right to keep and bear arms as
"the palladium of the liberties of the republic", which deterred
tyranny and enabled the citrizenry at large to overthrow it should
it come to pass.
   Subsequent legislation in the second Congress likewise supports
the interpretation of the Second Amendment that creates an indi-
vidual right. In the Militia Act of 1792, the second Congress de-
fined "militia of the United States" to include almost every free
adult male in the United States. These persons were obligated by
law to possess a firearm and a minimum supply of ammunition
and military equipment. This statute, incidentally, remained in
effect into the early yeats of the present century as a legal require-
ment of gun ownership for most of the population of the United
States. There can be little doubt from this that when the Congress
and the people spoke of a "militia", they had reference to the
traditional concept of the entire populace capable of bearing arms,
and not to any formal group such as what is today called the
National Guard. The purpose was to create an armed citizenry,
which the political theorists at the time considered essential to
ward off tyranny. From this militia, appropriate measures might
create a "well regulated militia" of individuals trained in their
duties and responsibilities as citizens and owners of firearms.
   If gun laws in fact worked, the sponsors of this type of legislation
should have no difficulty drawing upon long lists of examples of
crime rates reduced by such legislation. That they cannot do so
after a century and a half of trying--that they must sweep under
the rug the southern attempts at gun control in the 1870-1910
period, the northeastern attempts in the 1920-1939 period, the
attempst at both Federal and State levels in 1965-1976--establishes
the repeated, complete and inevitiable failure of gun laws to control
serious crime.
   Immediately upon assuming chairmanship of the Subcommittee
on the Constitution, I sponsored the report which follows as an
effort to study, rather than ignore, the history of the controversy
over the right to keep and bear arms. Utilizing the research capa-
bilities of the Subcommittee on the Constitution, the resources of
the Library of Congress, and the assistance of constitutional schol-
ars such as Mary Kaaren Jolly, Steven Halbrook, and David T.
Hardy, the subcommittee has managed to uncover information on
the right to keep and bear arms which documents quite clearly its
status as a major individual right of American citizens. We did not
guess at the purpose of the British 1689 Declaration of Rights; we
located the Journals of the House of Commons and private notes of
the Declaration's sponsors, now dead for two centuries. We did not
make suppositions as to colonial interpretations of that Declara-
tion's right to keep and bear arms; we examined colonial newspapers which
discussed it. We did not speculate as to the intent of the framers of
the second amendment; we examined James Madison's drafts for it,
his handwritten outlines of speeches upon the Bill of Rights, and
discussions of the second amendment by early scholars who were
personal friends of Madison, Jefferson, and Washington and wrote
while these still lived. What the Subcommittee on the Constitution
uncovered was clear--and long-lost--proof that the second amend-
ment to our Constitution was intended as an individual right of the
American citizen to keep and carry arms in a peaceful manner, for
protection of himself, his family, and his freedoms. The summary
of our research and findings forms the first portion of this report.
   In the interest of fairness and the presentation of a complete
picture, we also invited groups which were likely to oppose this
recognition of freedoms to submit their views. The statements of
two associations who replied are reproduced here following the
report of the Subcommittee. The Subcommittee also invited state-
ments by Messr. Halbrook and Hardy, and by the National Rifle
Association, whose statements likewise follow our report.
   [[Above-mentioned "private" views not included.   -RDH]]
   When I became chairman of the Subcommittee on the Constitu-
tion, I hoped that I would be able to assist in the protection of the
constitutional rights of American citizens, rights which have too
often been eroded in the belief that government could be relied
upon for quick solutions to difficult problems.
   Both as an American citizen and as a United States Senator I
repudiate this view. I likewise repudiate the approach of those who
believe to solve American problems you simple become something
other than American. To my mind, the uniqueness of our free
insitutions, the fact that an American citizen can boast freedoms
unknown in any other land, is all the more reason to resist any
erosion of our individual rights. When our ancestors forged a land
"conceived in liberty", they did so with musket and rifle. When
they reacted to attempts to dissolve their free institutions, and
established their identitiy as a free nation, they did so as a nation
of armed freemen. When they sought to record forever a guarantee
of their rights, they devoted one full amendment out of ten to
nothing but the protection of their right to keep and bear arms
against government interference. Under my chairmanship the Sub-
committee on the Constitution will concern itself with a proper
recognition of, and respect for, this right most valued by free men.

					Orrin G. Hatch,
						Chairman,
				Subcommittee on the Constitution.
   January 20, 1982.



   The right to bear arms is a tradition with deep roots in Ameri-
can society. Thomas Jefferson proposed that "no free man shall
ever be debarred the use of arms," and Samuel Adams called for
an amendment banning any law "to prevent the people of the
United States who are peaceable citizens from keeping their own
arms." The Constitution of the State of Arizona, for example, rec-
ognized the "right of an individual citizen to bear arms in defense
of himself or the State."
   Even though the tradition has deep roots, its application to
modern America is the subject of intense controversy. Indeed, it is
a controvery into which the Congress is beginning, once again, to
immerse itself. I have personally been disappointed that so impor-
tant an issue should have generally been so thinly researched and
so minimally debated both in Congress and the courts. Our Su-
preme Court has but once touched on its meaning at the Federal
level and that decision, now nearly a half-century old, is so ambigu-
ous that any school of thought can find some support in it. All
Supreme Court decisions on the second amendment's application to
the States came in the last century, when constitutional law was
far different that it is today. As ranking minority member of the
Subcommittee on the Consititution, I, therefore, welcome the effort
which led to this report--a report based not only upon the inde-
pendent research of the subcommittee staff, but also upon full and
fair presentation of the cases by all interested groups and individ-
ual scholars.
   I personally believe that it is necessary for the Congress to
amend the Gun Control Act of 1968. I welcome the oportunity to
introduce this discussion of how best these amendments might be
made.
   The Constitution subcommittee staff has prepared this mono-
graph bringing together proponents of both sides of the debate over
the 1968 Act. I believe that the statements contained herein pre-
sent the arguments fairly and thoroughly. I commend Senator
Hatch, chairman of the subcommittee, for having this excellent
reference work prepared. I am sure that it will be of great assist-
ance to the Congress as it debates the second amendment and
considers legislation to ammend the Gun Control Act.

					Dennis DeConcini,
				      Ranking Minorty Member,
				Subcommittee on the Constituion.
   January 20, 1982.




HISTORY: SECOND AMENDMENT RIGHT TO "KEEP AND BEAR ARMS"

   The right to keep and bear arms as a part of English and
American law antedates not only the Constitution, but also the
discovery of firearms. Under the laws of Alfred the Great, whose
reign began in 872 A.D., all English citizens from the nobility to
the peasants were obliged to privately purchase weapons and be
available for military duty.[1] This was in sharp contrast to the
feudal system as it evolved in Europe, under which armament and
military duties were concentrated in the nobility. The body of
armed citizens were known as the "fyrd".
   While a great many of the Saxon rights were abridged following
the Normal conquest, the right and duty of arms possession was
retained. Under the Assize of Arms of 1181, "the whole community
of freemen" between the ages of 15 and 40 were required by law to
possess certain arms, which were arranged in proportion to their
possessions.[2] They were required twice a year to demonstrate to
Royal Officials that they were appropriately armed. In 1253, an-
other Assize of Arms expanded the duty of armament to include
not only freeman, but also villeins, who were the English equiva-
lent of serfs. Now all "citizens, burgesses, free tenants, villeins and
others from 15 to 60 years of age" were obliged to be armed.[3]
While on the Continent the villeins were regarded as little more
than animals hungering for rebellion, the English legal system not
only permitted, but affirmatively required them, to be armed.
   The thirteenth century saw further definitions of this right as
the long bow, a formidable armor-piercing weapon, became increas-
ingly the mainstay of British national policy. In 1285, Edward I
commanded that all persons comply with the earlier Assizes and
added that "anyone else who can afford them shall keep bows and
arrows".[4] The right of armament was subject only to narrow
limitations. In 1279, it was ordered that those appearing in Parlia-
ment or other public assemblies "shall come without all force and
armor, well and peaceably".[5] In 1328, the statute of Northampton
ordered that no one use their arms in "affray of the peace, nor to
go nor ride armed by day or by night in fairs, markets, nor in the
presence of the justices or other ministers".[6] English courts con-
strued this ban consistently with the general right of private arma-
ment as applying only to wearing of arms "accompanied with such
circumstances as are apt to terrify the people".[7] In 1369, the King
ordered that the sheriffs of London require all citizens "at leisure
time on holidays" to "use in their recreation bowes and arrows"
and to stop all other games which might distract them from this
practice.[8]
   The Tudor kings experimented with limits upon specialized
weapons--mainly crossbows and the then-new firearms. These
measures were not intended to disarm the citizenry, but on the
contrary to prevent their being diverted from longbow practice by
sport with other weapons which were considered less effective.
Even these narrow measures were shortlived. In 1503, Henry VII
limited shooting (but not possession) of crossbows to those with
land worth 200 marks annual rental, but provided an exception for
those who "shote owt of a howse for the lawefull defens of the
same".[9] In 1511, Henry VIII increased the property requirement
to 300 marks. He also expanded the requirement of longbow owner-
ship, requiring all citizens to "use and exercyse shootyng in long-
bowes, and also have a bowe and arrowes contynually" in the
house.[10] Fathers were required by law to purchase bows and
arrows for their sons between the age of 7 and 14 and to train
them in longbow use.
   In 1514 the ban on crossbows was extended to include fire-
arms.[11] But in 1533, Henry reduced the property qualification to
100 pounds per year; in 1541 he limited it to possession of small
firearms ("of the length of one hole yard" for some firearms and
"thre quarters of a yarde" for others)[12] and eventually he re-
pealed the entire statute by proclamation.[13] The later Tudor
monarchs continued the system and Elizabeth added to it by creat-
in what came to be known as "train bands", selected portions of
the citizenry chosen for special training. These trained bands were
distinguished from the "militia", which term was first used during
the Spanish Armada crisis to designate the entire of the armed
citizenry.[14]
   The militia continued to be a pivotal force in the English politi-
cal system. The British historian Charles Oman considers the exist-
ence of the armed citizenry to be a major reason for the modera-
tion of monarchical rule in Great Britain; "More than once he
[Henry VIII] had to restrain himself, when he discovered that the
general feeling of his subjects was against him. . . . His 'gentlemen
pensioners' and his yeomen of the guard were but a handful, and
bills or bows were in every farm and cottage".[15]
   When civil war broke out in 1642, the critical issue was whether
the King or Parliament had the right to control the militia.[16] The
aftermath of the civil war saw England in temporary control of a
military government, which repeatedly dissolved Parliament and
authorized its officers to "search for, and seize all arms" owned by
Catholics, opponents of the government, "or any other person
whom the commissioners had judged dangerous to the peace of this
Commonwealth".[17]
   The military government ended with the restoration of Charles
II. Charles in turn opened his reign with a variety of repressive
legislation, expanding the definition of treason, establishing press
censorship and ordering his supporters to form their own troops,
"the officers to be numerous, disaffected persons watched and not
allowed to assemble, and their arms seized".[18] In 1662, a Militia
Act was enacted empowering officials "to search for and seize all
arms in the custody or possession of any person or persons whom
the said lieutenants or any two or more of their deputies shall
judge dangerous to the peace of the kingdom".[19] Gunsmiths were
ordered to deliver to the government lists of all purchasers.[20]
These confiscations were continued under James II, who directed
them particularly against the Irish population: "Although the
country was infested by predatory bands, a Protestant gentleman
could scarcely obtain permission to keep a brace of pistols."[21]
In 1668, the government of James was overturned in a peaceful
uprising which came to be known as "The Glorious Revolution".
Parliament resolved that James had abdicated and promulgated a
Declaration of Rights, later enacted as the Bill of Rights. Before
coronation, his successor William of Orange, was required to swear
to respect these rights. The debates in the House of Commons over
this Declaration of Rights focused largely upon the disarmament
under the 1662 Militia Act. One member complained that "an act
of Parliament was made to disarm all Englishmen, who the lieu-
tenant should suspect, by day or night, by force or otherwise--this
was done in Ireland for the sake of putting arms into Irish hands."
The speech of another is summarized as "militia bill--power to
disarm all England--now done in Ireland." A third complained
"Arbitrary power exercised by the ministry. . . . Militia--imprison-
ing with reason; disarming--himself disarmed." Yet another
summarized his complaints "Militia Act--an abominable thing to
disarm the nation. . . ."[22]
   The Bill of Rights, as drafted in the House of Commons, simply
provided that "the acts concerning the militia are grievous to the
subject" and that "it is necessary for the public Safety that the
Subjects, which are Protestants, should provide and keep arms for
the common defense; And that the Arms which have been seized,
and taken from them, be restored."[23] The House of Lords
changed this to make it a more positive declaration of an individu-
al right under English law: "That the subjects which are Protes-
tant may have arms for their defense suitable to their conditions
and as allowed by law."[24] The only limitation was on ownership
by Catholics, who at that time composed only a few percent of the
British population and were subject to a wide variety of punitive
legislation. The Parliament subsequently made clear what it meant
by "suitable to their conditions and as allowed by law". The poorer
citizens had been restricted from owning firearms, as well as traps
and other commodities useful for hunting, by the 1671 Game Act.
Following the Bill of Rights, Parliament reenacted that statute,
leaving its operative parts unchanged with one exception--which
removed the word "guns" from the list of items forbidden to the
poorer citizens.[25] The right to keep and bear arms would hence-
forth belong to all English subjects, rich and poor alike.
   In the colonies, availability of hunting and need for defense led
to armament statues comparable to those of the early Saxon
times. In 1623, Virginia forbade its colonists to travel unless they
were "well armed"; in 1631 it required colonists to engage in target
practice on Sunday and to "bring their peeces to church."[26] In
1658 it required every householder to have a functioning firearm
within his house and in 1673 its laws provided that a citizen who
claimed he was too poor to purchase a firearm would have one
purchased for him by the government, which would then require
him to pay a reasonable price when able to do so.[27] In Massachu-
setts, the first session of the legislature ordered that not only
freemen but also indentured servants own firearms and in 1644 it
imposed a stern 6 shilling fine upon any citizen who was not
armed.[28]
   When the British government began to increase its military pres-
ence in the colonies in the mid-eighteenth century, Massachusetts
responded by calling upons its citizens to arm themselves in defense.
One colonial newspaper argued that it was impossible to complain
that his act was illegal since they were "British subjects, to whom
the privilege of possessing arms is expressly recognized by the Bill
of Rights" while another argued that this "is a natural right which
the people have reserved to themselves, confirmed by the Bill of
Rights, to keep arms for their own defense".[29] The newspaper
cited Blackstone's commentaries on the laws of England, which had
listed the "having and using arms for self preservation and de-
fense" among the "absolute rights of individuals." The colonists
felt they had an absolute right at common law to own firearms.
   Together with freedom of the press, the right to keep and bear
arms became on of the individual rights most prized by the colo-
nists. When British troops seized a militia arsenal in September,
1774, and incorrect rumors that colonists has been killed spread
though Massachusetts, 60,000 citizens took up arms.[30] A few
months later, when Patrick Henry delivered his famed "Give me
liberty or give me death" speech, he spoke in support of a proposi-
tion "that a well regulated militia, composed of gentlemen and
freemen, is the natural strength and only security of a free govern-
ment. . . ." Throughout the following revolution, formal and infor-
mal units of armed citizens obstructed British communication, cut
off foraging parties, and harassed the thinly stretched regular
forces. When seven states adopted state "bills of rights" following
the Declaration of Independence, each of those bills of rights pro-
vided either for protection of the concept of a militia or for an
express right to keep and bear arms.[31]
   Following the revolution but previous to the adoption of the
Constitution, debates over militia proposals occupied a large part of
the policital[[sic]] scene. A variety of plans were put forth by figures
ranging from George Washington to Baron von Steuben.[32] All of
the proposals called for a general duty of all citizens to be armed,
although some proposals (most notably von Steuben's) also empha-
sized a "select militia" which would be paid for its services and
given special training. In this respect, this "select militia" was the
successor of the "trained bands" and the predecessor of what is
today the "national guard". In the debates over the Constitution,
von Steubon's proposals were criticized as undemocratic. In Con-
necticut one writer complained of a proposal that "this looks too
much like Baron von Steubon's militia, by which a standing army
was meant and intended."[33] In pennsylvania, a delegate argued
"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 will be no militia at all. When a select militia is formed, the
people in general may be disarmed."[34] Richard Henry Lee, in his
widely read pamphlet "Letters from the Federal Farmer to the
Republican" worried that the people might be disarmed "by model-
ling the militia. Should one fifth or one eighth part of the people
capable of bearing arms be made into a select militia, as has been
proposed, and those the young and ardent parts of the community,
possessed of little or no property, the former will answer all the
purposes of an army, while the latter will be defenseless." He
proposed that "the Constitution ought to secure a genuine, and
guard against a select militia," adding 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."[35]
   The suspicion of select militia units expressed in these passages
is a clear indication that the framers of the Constitution did not
seek to guarantee a State right to maintain formed groups similar
to the National Guard, but rather to protect the right of individual
citizens to keep and bear arms. Lee, in particular, sat in the Senate
which approved the Bill of Rights. He would hardly have meant
the second amendment to apply only to the select militias he so
feared and disliked.
   Other figures of the period were of like mind. In the Virginia
convention, George Mason, drafter of the Virginia Bill of Rights,
accused the British of having plotted "to disarm the people--that
was the best and most effective way to enslave them", while Pat-
rick Henry observed that "The great object is that every man be
armed" and "everyone who is able may have a gun".[36]
   Nor were the antifederalist, to whom we owe credit for a Bill of
Rights, alone on this account. Federalist arguments also provide a
source of support for an individual rights view. Their arguments in
favor of the proposed Constitution also relied heavily upon univer-
sal armament. The proposed Constitution had been heavily criti-
cized for its failure to ban or even limit standing armies. Unable to
deny this omission, the Constitution's supporters frequently argued
to the people that their universal armament of Americans made
such limitations unnecessary. A pamphlet written by Noah Web-
ster, aimed at swaying Pennsylvania toward ratification, observed

	   Before a standing army can rule, the people must be
	disarmed; as they are in almost every kingdom in Europe.
	The supreme power in America cannot enforce unjust laws
	by the sword, because the whole body of the people are
	armed, and constitute a force superior to any band of
	regular troops that can be, on any pretense, raised in the
	United States.[37]

   In the Massachusetts convention, Sedgwick echoed the same
thought, rhetorically asking if an oppressive army could be formed
or "if raised, whether they could subdue a Nation of Freeman, who
know how to prize liberty, and who have arms in their hands?"[38]
In Federalist Paper 46, Madison, later author of the Second Amend-
ment, mentioned "The advantage of being armed, which the
Americans possess over the people of all other countries" and that
"notwithstanding the military establishments in the several king-
doms of Europe, which are carried as far as the public resources
will bear, the governments are afraid to trust the people with
arms."
   A third and even more compelling case for an individual rights
perspective on the Second Amendment comes from the State de-
mands for a bill of rights. Numerous state ratifications called for
adoption of a Bill of Rights as a part of the Constitution. The first
such call came from a group of Pennsylvania delegates. Their
proposals, which were not adopted but had a critical effect on
future debates, proposed among other rights that "the people have
a right to bear arms for the defense of themselves and their own
state, or the United States, or for the purpose of killing game; and
no law shall be passed for disarming the people or any or them,
unless for crimes committed, or a real danger of public injury from
individuals."[39] In Massachusetts, Sam Adams unsuccessfully
pushed for a ratification conditioned on adoption of a Bill of Rights,
beginning with a guarantee "That the said Constitution shall never
be construed to authorize Congress to infringe the just liberty of
the press or the rights of conscience; or to prevent the people of the
United States who are peaceable citizens from keeping their own
arms. . . ."[40] When New Hampshire gave the Constitution the
ninth vote needed for its passing into effect, it called for adoption
of a Bill of Rights which included the provision that "Congress
shall never disarm any citizen unless such as are or have been in
actual rebellion".[41] Virginia and North Carolina thereafter called
for a provision "that the people have the right to keep and bear
arms; that a well regulated militia composed of the body of the
people trained to arms is the proper, natural and safe defense of a
free state."[42]
   When the first Congress convened for the purpose of drafting a
Bill of Rights, it delegated the task to James Madison. Madison did
not write upon a blank tablet. Instead, he obtained a pamphlet
listing the State proposals for a Bill of Rights and sought to pro-
duce a briefer version incorporating all the vital proposals of these.
His purpose was to incorporate, not distinguish by technical
changes, proposals such as that of the Pennsylvania minority, Sam
Adams, and the New Hampshire delegates. Madison proposed among
other rights that:

	   "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 religious-
	ly scrupulous of bearing arms shall be compelled to render
	military service in person."[43]

In the House, this was initially modified so that the militia
clause came before the proposal recognizing the right. The propos-
als for the Bill of Rights were then trimmed in the interests of
brevity. The conscientious objector clause was removed following
objections by Elbridge Gerry, who complained that future Congress-
es might abuse the exemption for the scrupulous to excuse every-
one from militia service.
   The proposal finally passed the House in its present form: "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." In this form it was submitted into the Senate, which
passed it the following day. The Senate in the process indicated its
intent that the right be an individual one, for private purposes, by
rejecting an amendment which would have limited the keeping and
bearing of arms to bearing "for the common defense".
   The earliest American constitutional commentators concurred in
giving this broad reading to the amendment. When St. George
Tucker, later Chief Justice of the Virginia Supreme Court, in 1803
published an edition of Blackstone annotated to American law, he
followed Blackstone's citation of the right of the subject "of having
arms suitable to their condition and degree, and such as are al-
lowed by law" with a citation to the Second Amendment, "And this
without any qualification as to their condition or degree, as is the
case in the British government".[44] William Rawle's "View of the
Constitution" published in Philadelphia in 1825 noted that under
the Second Amendment

	   The prohibition is general. No clause in the Constitution
	could by a rule of construction be conceived to give to
	Congress a power to disarm the people. Such a flagitious
	attempt could only be made under some general pretense
	by a state legislature. But if in blind pursuit of inordinate
	power, either should attempt it, this amendment may be
	appealed to as a restraint on both."[45]

   The Jefferson papers in the Library of Congress show that both
Tucker and Rawle were friends of, and corresponded with Thomas
Jefferson. This suggests that their assessment, as contemporaries of
the Constitution's drafters, should be afforded special considera-
tion.
   Later commentators agreed with Tucker and Rawle. For in-
stance, Joseph Story in his "Commentaries on the Constitution"
considered the right to keep and bear arms as "the palladium of
the liberties of the republic", which deterred tyranny and enabled
the citizenry at large to overthrow it should it come to pass.[46]
   Subsequent legislation in the Second Congress likewise supports
the interpretation of the second amendment that creates an indi-
vidual right. In the Militia Act of 1792, the second Congress de-
fined "militia of the United States" to include almost every free
adult male in the United States. These persons were obliged by
law to possess a firearm and a minimum supply of ammunition
and military equipment.[47] This statute, incidentally remained in
effect into the early years of the present century as a legal require-
ment of gun ownership for most of the population of the United
States. There can be little doubt from this that when the Congress
and the people spoke of a "militia", they had reference to the
traditional concept of the entire populace capable of bearing arms,
and not to any formal group such as what is today called the
National Guard. The purpose was to create an armed citizenry,
such as the political theorists at the time considered essential to
ward off tyranny. From this militia, appropriate measures might
create a "well regulated militia" of individuals trained in their
duties and responsibilities as citizens and owners of firearms.
   The Second Amendment as such was rarely litigated prior to the
passage of the Fourteenth Amendment. Prior to that time, most
courts accepted that the commands of the federal Bill of Rights did
not apply to the states. Since there was no federal firearms legisla-
tion at this time, there was no legislation which was directly sub-
ject to the Second Amendment, if the accepted interpretations were
followed. However, a broad variety of state legislation was struck
down under state guarantees of the right to keep and bear arms
and even in a few cases, under the Second Amendment, when it
came before courts which considered the federal protections appli-
cable to the states. Kentucky in 1813 enacted the first carrying
concealed weapon statute in the United States; in 1822 the Ken-
tucky Court of Appeals struck down the law as a violation of the
state constitutional protection of the right to keep and bear arms;
"And can there be entertained a reasonable doubt but that the provi-
sions of that act import a restraint on the right of the citizen to
bear arms? The court apprehends it not. The right existed at the
adoption of the Constitution; it then had no limit short of the
moral power of the citizens to exercise it, and in fact consisted of
nothing else but the liberty of the citizen to bear arms."[48] On the
other hand, a similar measure was sustained in Indiana, not upon
the grounds that a right to keep and bear arms did not apply, but
rather upon the notion that a statute banning only concealed car-
rying still permitted the carrying of arms and merely regulated
one possible way of carrying them.[49] A few years later, the Su-
preme Court of Alabama upheld a similar statute but added "We
do not desire to be understood as maintaining, that in regulating
the manner of wearing arms, the legislature has no other limit
than its own discretion. A statute which, under the pretense of
regulation, amounts to a destruction of that right, or which re-
quires arms to be so borne as to render them wholly useless for the
purpose of defense, would be clearly unconstitutional."[50] When
the Arkansas Supreme Court in 1842 upheld a carrying concealed
weapons statute, the chief justice explained that the statute would
not "detract anything from the power of the people to defend their
free state and the established institutions of the country. It prohib-
its only the wearing of certain arms concealed. This is simply a
regulation as to the manner of bearing such arms as are specified",
while the dissenting justice proclaimed "I deny that any just or
free government upon earth has the power to disarm its citi-
zens.[51]
   Sometimes courts went farther. When in 1837, Georgia totally
banned the sale of pistols (excepting the larger pistols "known and
used as horsemen's pistols") and other weapons, the Georgia Su-
preme Court in Nunn v. State held the statute unconstitutional
under the Second Amendment to the federal Constitution. The
court held that the Bill of Rights protected natural rights which
were fully as capable of infringement by states as by the federal
government and that the Second Amendment provided "the right
of the whole people, old and young, men, women, and boys, and not
militia only, to keep and bear arms of every description, and not
merely such as are used by the militia, shall not be infringed,
curtailed, or broken in on, in the slightest degree; and all this for
the important end to be attained: the rearing up and qualifying of
a well regulated militia, so vitally necessary to the security of a
free state."[52] Prior to the Civil War, the Supreme Court of the
United States likewise indicated that the privileges of citizenship
included the individual right to own and carry firearms. In the
notorious Dred Scott case, the court held that black Americans
were not citizens and could not be made such by any state. This
decision, which by striking down the Missouri Compromise did so
much to bring on the Civil War, listed what the Supreme Court
considered the rights of American citizens by way of illustrating
what rights would have to be given to black Americans if the Court
were to recognize them as full fledged citizens:

	   It would give to persons of the negro race, who are
	recognized as citizens in any one state of the Union, the
	right to enter every other state, whenever they
	pleased. . . . and it would give them full liberty of speech
	in public and in private upon all subjects upon which its
	own citizens might meet; to hold public meetings upon
	political affairs, and to keep and carry arms wherever they
	went.[53]

Following the Civil War, the legislative efforts which gave us
three amendments to the Constitution and our earliest civil rights
acts likewise recognized the right to keep and bear arms as an
existing constitutional right of the individual citizen and as a right
specifically singled out as one protected by the civil rights acts
and by the Fourteenth Amendment to the Constitution, against in-
fringement by state authorities. Much of the reconstruction effort
in the South had been hinged upon the creation of "black militias"
composed of the armed and newly freed blacks, officered largely by
black veterans of the Union Army. In the months after the Civil
War, the existing southern governments struck at these units with
the enactment of "black codes" which either outlawed gun owner-
ship by blacks entirely, or imposed permit systems for them, and
permitted the confiscation of firearms owned by blacks. When the
Civil Rights Act of 1866 was debated members both of the Senate
and the House referred to the disarmament of blacks as a major
consideration.[54] Senator Trumbull cited provisions outlawing
ownership of arms by blacks as among those which the Civil Rights
Act would prevent;[55] Senator Sulsbury complained on the other
hand that if the act were to be passed it would prevent his own
state from enforcing a law banning gun ownership by individual
free blacks.[56] Similar arguments were advanced during the de-
bates over the "anti-KKK act"; its sponsor at one point explained
that a section making it a federal crime to deprive a person of
"arms or weapons he may have in his house or possession for the
defense of his person, family or property" was "intended to enforce
the well-known constitutional provisions guaranteeing the right in
the citizen to 'keep and bear arms'."[57] Likewise, the debates over
the Fourteenth Amendment Congress frequently referred to the
Second Amendment as one of the rights which it intended to
guarantee against state action.[58]
   Following adoption of the Fourteenth Amendment, however, the
Supreme Court held that that Amendment's prohibition against
states depriving any persons of their federal "privileges and immu-
nities" was to be given a narrow construction. In particular, the
"privileges and immunities" under the Constitution would refer
only to those rights which were not felt to exist as a process of
natural right, but which were created solely by the Constitution.
These might refer to rights such as voting in federal elections and
of interstate travel, which would clearly not exist except by virtue
of the existence of a federal government and which could not be
said to be "natural rights".[59] This paradoxically meant that the
rights which most persons would accept as the most important--
those flowing from concepts of natural justice--were devalued at
the expense of more technical rights. Thus when individuals were
charged with having deprived black citizens of their right to free-
dom of assembly and to keep and bear arms, by violently breaking
up a peaceable assembly of black citizens, the Supreme Court in
United States v. Cruikshank[60] held that no indictment could be
properly brought since the right "of bearing arms for a lawful
purpose" is "not a right granted by the Constitution. Neither is it
in any manner dependent upon that instrument for its existence."
Nor, in the view of the Court, was the right to peacefully assemble
a right protected by the Fourteenth Amendment: "The right of the
people peaceably to assemble for lawful purposes existed long
before the adoption of the Constitution of the United States. In
fact it is and has always been one of the attributes of citizenship
under a free government. . . . It was not, therefore, a right granted
to the people by the Constitution." Thus the very importance of the
rights protected by the First and Second Amendment was used as the
basis for the argument that they did not apply to the states
under the Fourteenth Amendment. In later opinions, chiefly Press-
er v. Illinois[61] and Miller v. Texas,[62] the Supreme Court ad-
hered to the view. Cruikshank has clearly been superseded by
twentieth century opinions which hold that portions of the Bill of
Rights--and in particular the right to assembly with which Cruik-
shank dealt in addition to the Second Amendment--are binding
upon the state governments. Given the legislative history of the
Civil Rights Acts and the Fourteenth Amendment, and the more
expanded views of incorporation which have become accepted in
our own century, it is clear that the right to keep and bear arms
was meant to be and should be protected under the civil rights
statutes and the Fourteenth Amendment against infringement by
officials acting under color of state law.
   Within our own century, the only occasion upon which the
Second Amendment has reached the Supreme Court came in
United States v. Miller.[63] There, a prosecution for carrying a
sawed off shotgun was dismissed before trial on Second Amend-
ment grounds. In doing so, the court took no evidence as to the
nature of the firearm or indeed any other factual matter. The
Supreme Court reversed on procedural grounds, holding that the
trial court could not take judicial notice of the relationship be-
tween a firearm and the Second Amendment, but must receive
some manner of evidence. It did not formulate a test nor state
precisely what relationship might be required. The court's state-
ment that the amendment was adopted "to assure the continuation
and render possible the effectiveness of such [militia] forces" and
"must be interpreted and applied with that end in view", when
combined with the court's statement that all constitutional sources
"show plainly enough that the militia comprised all males phys-
ically capable of acting in concert for the common defense. . . .
these men were expected to appear bearing arms supplied by them-
selves and of the kind in common use at the time,"[64] suggests
that at the very least private ownership by a person capable of self
defense and using an ordinary privately owned firearm must be
protected by the Second Amendment. What the Court did not do in
Miller is even more striking: It did not suggest that the lower court
take evidence on whether Miller belonged to the National Guard or
a similar group. The hearing was to be on the nature of the
firearm, not on the nature of its use; nor is there a single sugges-
tion that National Guard status is relevant to the case.
   The Second Amendment right to keep and bear arms therefore,
is a right of the individual citizen to privately posses and carry in
a peaceful manner firearms and similar arms. Such an "individual
rights" interpretation is in full accord with the history of the right
to keep and bear arms, as previously discussed. It is moreover in
accord with contemporaneous statements and formulations of the
right by such founders of this nation as Thomas Jefferson and
Samuel Adams, and accurately reflects the majority of the propos-
als which led up to the Bill of Rights itself. A number of state
constitutions, adopted prior to or contemporaneously with the fed-
eral Constitution and Bill of Rights, similarly provided for a right
of the people to keep and bear arms. If in fact this language creates
a right protecting the states only, there might be a reason for it to
be inserted in the federal Constitution but no reason for it to be
inserted in state constitutions. State bills of rights necessarily pro-
tect only against action by the state, and by definition a state
cannot infringe its own rights; to attempt to protect a right belong-
ing to the state be inserting it in a limitation of the state's own
powers would create an absurdity. The fact that the contemporar-
ies of the framers did insert these words into several state constitu-
tions would indicate clearly that they viewed the right as belonging
to the individual citizen, thereby making it a right which could be
infringed either by state or federal government and which must be
protected against infringement by both.
   Finally, the individual rights interpretation gives full meaning to
the words chosen by the first Congress to reflect the right to keep
and bear arms. The framers of the Bill of Rights consistently used
the words "right of the people" to reflect individual rights--as
when these words were used to recognize the "right of the people"
to peaceably assemble, and the "right of the people" against unrea-
sonable searches and seizures. They distinguished between the 
rights of the people and of the state in the Tenth Amendment. As
discussed earlier, the "militia" itself referred to a concept of a
universally armed people, not to any specifically organized unit.
When the framers referred to the equivalent of our National
Guard, they uniformly used the term "select militia" and distin-
guished this from "militia". Indeed, the debates over the Constitu-
tion constantly referred to organized militia units as a threat to
freedom comparable to that of a standing army, and stressed that
such organized units did not constitute, and indeed were philo-
sophically opposed to, the concept of a militia.
   That the National Guard is not the "Militia" referred to in the
second amendment is even clearer today. Congress has organized
the National Guard under its power to "raise and support armies"
and not its power to "Provide for organizing, arming and disciplin-
ing the Militia".[65] This Congress chose to do in the interests of
organizing reserve military units which were not limited in deploy-
ment by the strictures of our power over the constitutional militia,
which can be called forth only "to execute the laws of the Union,
suppress insurrections and repel invasions." The modern National
Guard was specifically intended to avoid status as the constitution-
al militia, a distinction recognized by 10 U.S.C. Sec 311(a).
   The conclusion is thus inescapable that the history, concept, and
wording of the second amendment to the Constitution of the
United States, as well as its interpretation by every major com-
mentator and court in the first half-century after its ratification,
indicates that what is protected is an individual right of a private
citizen to own and carry firearms in a peaceful manner.

	REFERENCES

   1. Charles Hollister, Anglo-Saxon Military Institutions 11-42
(Oxford University Press 1962); Francis Grose, Military Antiquities
Respecting a History of the British Army, Vol I at 1-2 (London, 1812)
   2. Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal
History of Medieval England 273 (2d. ed. New York 1980)
   3. J. J. Bagley and P. B. Rowley, A Documentary History of England
1066-1540, Vol 1 at 155-56 (New York 1965)
   4. Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley,
supra at 158.
   5. 7 Ed. I c. 2 (1279).
   6. Statute of Northampton (2 Edw. III c. 3).
   7. Rex v. Knight, 90 Eng Rep. 330; 87 Eng Rep. 75 (King's Bench, 1686).
   8. E. G. Heath, The Grey Goose Wing 109 (London, 1971).
   9. 19 Hen. VII c. 4 (1503).
  10. 3 Hen. VIII c. 13 (1511).
  11. 64 Hen. VIII c. 13 (1514).
  12. 33 Hen. VIII c. 6 (1514).
  13. Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979).
  14. Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968).
  15. Charles Oman, A History of the Art of War in the Sixteenth
Century 288 (New York, 1937).
  16. William Blackstone, Commentaries, Vol. 2 at 412 (St. George
Tucker, ed., Philadelphia 1803).
  17. "An Act for Settling the Militia," Ordinances and Acts of the
Interregnum, Vol. 2 1320 (London, HMSO 1911).
  18. 8 Calendar of State Papers (Domestic), Charles II, No 188, p. 150.
  19. 14 Car. II c. 3 (1662).
  20. Joyce Malcolm, Disarmed: The Loss of the Right to Bear Arms in
Restoration England, at 11 (Mary Ingraham Bunting Institute, Radcliffe
College 1980).
  21. Thomas Macaulay, The History of England from the Accession of
Charles II, Vol. II at 137 (London, 1856).
  22. Phillip, Earl of Hardwicke, Miscellaneous State Papers from 1501-
1726, vol. 2 at 407-17 (London, 1778).
  23. J. R. Western, Monarchy and Revolution: The English State in the
1680's, at 339 (Totowa, N.J., 1972)
  24. Journal of the House of Commons from December 26, 1688, to October
26, 1693, at 29. (London, 1742). The Bill of Rights was ultimately
enacted in this form. 1 Gul. and Mar., Sess. 2, c. 2 (1689)
  25. Joyce Malcolm, supra, at 16.
  26. William Hening, The Statutes at Large: Being a Collection of All
the Laws of Virginia from the First Session of the Legislature in 1619,
at pp. 127, 173-74 (New York, 1823).
  27. Id.
  28. William Brigham, The Compact with the Charter and Laws of the
Colony of New Plymouth, 31, 76 (Boston, 1836).
  29. Oliver Dickerson, ed., Boston Under Military Rule, 61, 79
(Boston, 1936).
  30. Steven Patterson, Political Parties in Revolutionary Massachusetts,
at 103 (Univ. of Wisconsin Press, 1973).
  31. See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965).
  32. The most extensive studies of these militia proposals are John
McAuley Palmer, Washington, Lincoln, Wilson: Three War Statesmen (New
York, 1930); Frederick Stern, Citizen Army (New York, 1957); John
Mahon, The American Militia: Decade of Decision 1789-1800 (Univ of
Florida, 1960).
  33. Merrill Jensen, ed., The Documentary of History of the Ratification
of the Constitution, vol 3 at 378 (Madison, Wisc.).
  34. Id., vol. 2 at 508.
  35. Walter Bennett, ed., Letters from the Federal Farmer to the
Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975).
  36. Debates and other Proceedings of the Convention of Virginia, . . .
taken in shorthand by David Robertson of Petersburg, at 271, 275 (2d
ed. Richmond, 1805).
  37. Noah Webster, "An Examination into the Leading Principles of the
Federal Constitution . . .", in Paul Ford, ed., Pamphlets on the Consti-
tution of the United States, at 56 (New York, 1888).
  38. Johnathan Elliott, ed., Debates in the Several State Conventions
on the Adoption of the Federal Constitution, vol. 2 at 97 (2d ed., 1888).
  39. Merrill Jensen, supra, vol. 2 at 597-98.
  40. Debates and Proceedings in the Convention of the Commonwealth of
Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850); 2 B.
Schwartz, the Bill of Rights 675 (1971).
  41. Documents Illustrative of the Formation of the Union of the
American States, at 1026 (Washington, D.C.: GPO, 1927).
  42. Id. at 1030
  43. Annals of Congress 434 (1789).
  44. St. George Tucker, ed., Blackstone's Commentaries, Volume 1
at 143 n. 40, 41 (Philadelphia, 1803).
  45. William Rawle, A View of the Constitution 125-6 (2d ed.,
Philadelphia, 1803).
  46. Joseph Story, Commentaries on the Constitution, vol. 2 at 746 (1833).
  47. Act of May 8, 1792; Second Cong., First Session, ch. 33.
  48. Bliss v. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822)
  49. State v. Mitchell, (3 Black.) 229.
  50. State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840).
  51. State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas Constitu-
tional provision at issue was narrower than the second amendment, as it
protected keeping and bearing arms "for the common defense." Id. at 34.
  52. Nunn v. State, 1 Ga. 243, 251 (1846).
  53. Dred Scott v. Sandford, 60 U.S. 691, 705.
  54. The most comprehensive work in this field of constitutional law is
Steven Halbrook, the Jurisprudence of the Second and Fourteenth Amendments
(Institute for Humane Studies, Menlo Park, California, 1979), reprinted in
4 George Mason L. Rev. 1 (1981).
  55. Cong. Globe, 39th Congress, 1st Sess., pt. 1, p. 474 (Jan. 29, 1866).
  56. Id. at 478.
  57. H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871).
  58. See generally Halbrook, supra, at 42-62.
  59. Slaughterhouse Cases, 83 U.S. 36 (L873).
  60. United States v. Cruikshank, 92 U.S. 542 (1876).
  61. Presser v. Illinois, 116 U.S. 252 (1886).
  62. Miller v. Texas, 153 U.S. 535 (1894
  63. United States v. Miller, 307 U.S. 175 (1939).
  64. Id. at 178, 179.
  65. H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933).
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