The Current Relevancy of Keeping and Bearing Arms

15 University of Baltimore School of Law Forum 32 (1984)

by Robert Dowlut

The Framers of the United States Constitution considered the right to keep and bear arms so important that the second amendment to the Bill of Rights guarantees, ''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.''

It is well known that gun control is a vehemently debated political issue. It is also well known that a guarantee in the Bill of Rights ''was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages....''1 Following a brief look at the history of the second amendment, the current relevancy of this guarantee, as well as its application to the states, will be demonstrated.

Development of the Right
Recent commentary has revealed that the right to keep and bear arms was an important right at common law.2 Nevertheless, it should be noted that ''in England the authority of the Parliament runs without limits, and rises above control.... [T]here is no written constitution.... In America the case is widely different: Every State in the Union has its constitution reduced to written exactitude and precision.... [T]he Constitution is the sum of the political system, around which all Legislative, Executive and Judicial bodies must revolve.''3

The state conventions ratifying the United States Constitution were faced with deciding whether a Bill of Rights was necessary. The Antifederalists demanded a Bill of Rights and proposed 186 amendments.4 ''The Constitution was ratified in the belief, and only because of the belief, encouraged by its leading advocates, that, immediately upon the organization of the Government of the Union, articles of amendment would be submitted to the people, recognizing those essential rights of life, liberty, and property....''5

The Framers could not enumerate all the specific rights they enjoyed and wished to protect because the Constitution could not take on the prolixity of a civil code. Only its great outlines should be marked. The Bill of Rights is the condensed progeny of the ideas enunciated in the cumbersome 186 proposals. To carry out its spirit, liberal construction is required.6

To understand the scope and meaning of the right to keep and bear arms, it is necessary to review proposals on arms in the state conventions for they serve as the roots of the second amendment. A minority in the Pennsylvania convention proposed the following:
..........That the people have a right to bear arms for the defence of themselves
..........and their own State, or the United States, or for the purpose of killing; and no law shall be passed for disarming the people or any of them,
..........unless for crimes committed, or real danger of public injury from individuals;
..........and as standing armies in the time of peace are dangerous to liberty, they
..........ought not to be kept up; and that the military shall be kept under strict
..........subordination to and be governed by the civil power.7

The minority proposal in Massachusetts included a guarantee ''that the said Constitution be never construed to authorize Congress... to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.''8 The New Hampshire majority proposed that ''Congress shall never disarm any citizen, unless such as are or have been in Actual Rebellion.'' Furthermore, New York's majority proposed ''That the people have a right to keep and bear arms; that a well regulated militia, including the body of people capable of bearing arms, is the proper, natural, and safe defence of a free state.'' Virginia, North Carolina and Rhode Island's proposals were similar to that of New York.9

The concise language of the second amendment satisfies all of the proposal's concerns on arms. The introductory clause, (''A well regulated militia being necessary to the security of a free state''), contains prefatory language and without the people being able to keep and bear arms that prefatory language's goal would be unattainable. The commanding language of the main clause, (''the right of the people to keep and bear arms shall not be infringed''), is broad enough to prevent the infringement of traditional uses of arms, including self-defense. The idea that the main clause was not meant to be restricted to a military purpose is supported by the Senate's defeat of an attempt to insert ''for the common defense'' at the end of the word ''arms'' in the second amendment.10

Recently a historian noted, ''But advocates of the control of firearms should not argue that the Second Amendment did not intend for Americans of the late eighteenth century to posess arms for their own personal defense, for the defense of their states and their nation, and for the purpose of keeping their rulers sensitive to the rights of the people.''11

The arms which may be kept for those purposes are such as are commonly kept by the people. Colonial militia statutes reveal that ''arms'' included firearms fired from the shoulder and pistols.12 When British General Gage ordered Bostonians to surrender their arms, the surrendered arms included 1,778 muskets and 634 pistols.13 However, weapons such as ''cannon or other heavy ordinance not kept by militiamen or private citizens'' and ''[m]odern weapons used exclusively by the military'' were outside the protected boundary because they were not ''commonly possessed by individuals."14

Current Relevancy
There is no social interest in preserving the lives and well-being of violent criminal aggressors at the cost of their victims. The only defensible posture that society can adopt is one that will guarantee the right to have and use arms commonly kept by the people to protect one's person, family, and home from violent, felonious aggression. Keeping arms in the home is the core element of the constitutional right to arms since history shows that the defense of home has been the most favored branch of self-defense from the earliest times.

Indeed, the practical aspects of this right should be kept in mind, for neither the government nor its law enforcement officers owe a duty to protect the individual citizen or prevent crime. This principle was stated thusly, ''there is no constitutional right to be protected by the state against being murdered by criminals or madmen."15

''Private citizens inevitably play an important role in controlling crime. By limiting their exposure to risk, investing in locks and guns,... private citizens affect the overall level of crime, and the distribution of the benefits and burdens of policing.'' We should not ''forget that private policing was the only form of policing for centuries....'' Those who think of private enforcement as evidence of ''dangerous vigilantes forget the value of private crime-control efforts, and the crucial difference between vigilantes and responsible citizens playing their traditional role in crime control.'' T'he legitimate role of private citizens is to ''limit their function to deterrence and, occasionally, apprehension; they neither judge guilt nor mete out punishment.''16

B. The militia is a relevant force even in the nuclear age. The avoidance of a protracted war of attrition in a people's homeland is a consideration of every military strategist. The lessons of Central America, Africa, and Afghanistan illustrate the limitations of push button warfare.

The militia has been defined as ''all citizens capable of bearing arms,'' and it is not restricted to the organized national guard.17 During World War 11, the Maryland National Guard was activated by the national government for overseas service. Maryland Governor Herbert R. O'Conor called on:
..........[E]very able-bodied man to assist in protecting his home and
..........his community against enemy activities. The militia will be organized
..........under our State Law, and the men who enlist at this time of our
..........grave emergency will be known as the 'Maryland Minute Men'....
..........[T]he United States Army cannot be expected to furnish sufficient
..........arms.... Hence, the volunteers, for the most part, will be expected to
..........furnish their own weapons. For this reason, gunners (of whom there
..........are 60,000 licensed in Maryland), members of Rod and Gun Clubs,
..........of Trap Shooting and similar organizations. will be expected to constitute
..........a part of this new military organization.18

No doubt, the fear of invasion was very real at a time when Nazi submarines were sinking American ships off the Atlantic.

C. The twin hallmarks of traditional liberal thought are trust in the people and doubt in the government. The late Senator Hubert Humphrey echoed this view when he stated, ''The right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against the tyranny which now appears remote in America, but which historically has proved to be always possible.'' It has been noted in the same vein that:
..........A general may have pipe dreams of a sudden and peaceful takeover
..........and a nation moving confidently forward, united under his direction.
..........But the realistic general will remember the actual fruits of civil war-
..........shattered cities like Hue, Beirut, and Belfast, devastated countrysides the Mekong Delta, Cypress, and southern Lebanon. Is that what
..........he wants for San Francisco, Milwaukee, and Philadelphia; for the San
..........Joaquin Valley, Iowa, and Mississippi? However, some generals may
..........despise the country's current civilian leadership and policies, most will realisitic enough to recognize that the situation would be far worse
..........with the country wracked by the civil war that would inevitably follow
..........a military takeover. Even if a general is certain that he could eventually such a civil war, he must also evaluate its effect in leaving the country
..........vulnerable to foreign invasion.19

The Framers were cognizant of crime. This is revealed in the proposals on arms of Pennsylvania (''unless for crimes committed, or real danger of public injury from individuals''), Massachusetts (''who are peaceable citizens''), an New Hampshire (''unless such as are or have been in Actual Rebellion''). Hence, the mentally deficient, felons, and infants may be constitutionally excluded from the enjoyment of this right. While misconduct with arms is obviously not protected by the constitution, the lawful use of arms falls under the constitutional umbrella. Thus, this right guarantees the use of arms in a rude, angry, or threatening manner without fear of successful prosecution when a person's body or home is feloniously attacked. However, a person steps out from under the protection of the constitution when without lawful justification he or she becomes an armed aggressor.

Application to the States
The constitutions of 39 states guarantee a right to arms. The Framers of the fourteenth amendment intended that the second amendment apply to the states, for they specifically cited the right to keep arms in condemning efforts to disarm freedom. Even prior to the adoption of the fourteenth amendment, many believed that the second amendment also protected the people against state infringement. Thus, the Maryland convention of 1867 decided not to add to its Bill of Rights a guarantee that ''Every citizen has the right to bear arms in defense of himself and the State'' because the second amendment was deemed ''amply sufficient.''20

Gun prohibition, like the exclusion of all persons of Japanese ancestry from designated West Coast areas during World War II, the ''separate but equal'' doctrine, and efforts to avoid the exclusionary rule, is merely another effort to tailor the law to the perceived needs of the moment and thereby reduces a constitutional guarantee into an intangible abstraction.

West Virginia Supreme Court Chief Justice Richard Neely wrote, ''Lawyers, certainly, who take seriously recent U.S. Supreme Court historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny.''21 While some courts even sidestep history, as does a two to one decision upholding a complete pistol ban with the puzzling comment that ''the debate surrounding the adoption of the second and fourteenth amendments...has no relevance on the resolution of the controversy before us,"22 other courts have been mindful of the intent of the Framers. Thus, in striking down an arms statute a court noted:
..........We are not unmindful that there is current controversy over
..........the wisdom of a right to bear arms, and that the original motivations
..........for such a provision might not seem compelling if debated as a new
..........issue. Our task, however, in construing a constitutional provision to respect the principles given the status of constitutional
..........guarantees and limitations by the drafters; it is not to abandon
..........these principles when this fits the needs of the moment.23

Finally, the right to keep and bear arms is not merely a second-class right. Its location in the Bill of Rights is evidence that the Framers felt it belonged in the catalog of indispensable freedoms. If this is too burdensome, article V of the Constitution contains the appropriate mechanism for change.

1 Martin v. Hunter's Lessee, 14 U.S. (1 Wheat. ) 304. 326 (1816).
2 Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L. Q. (1983); Caplan. The Right of the Individual to Bear Arms: A Recent Judicial Trend, 1982 Det. C. L. Rev. 789.
3 Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall. ) 304, 308 (1795).
4 The figure becomes 210 if New York's preliminary recitals are added. Discounting duplications, 80 substantive proposals emerged. E. Dumbauld, The Bill of Rights and What It Means Today 32 (1957).
5 O'Neil v. Vermont, 144 U.S. 323, 370 (1892) (Harlan, J., dissenting).
6 Boyd v. United States, 116 U.S. 616, 635 (1886); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
7 3 The Roots of the Bill of Rights 658-59, 665 (B. Swartz ed. 1980).
8 Id. at 675, 681.
9 l Debates on the Adoption of the Fed. Constitution 326 (J. Elliott ed. 1836) (N.H.); id. 327-28 (N.Y,), 335 (R.I.); 3 id. 659 (Va.); 4 id. 244 (N.C.).
10 5 The Roots of the Bill of Rights 1153-54 (B. Schwartz ed. 1980).
11 Shalhope, The Ideological Origins of the Second Amendment, 69 J. Am. Hist. 599, 614 (1982).
12 Records of States of U.S. Composite microfilm reel of printed militia laws and regulations of the states, 1724- 1847. Library of Congress.
13 R. Frothingham, History of the Seige of Boston and of the Battles of Lexington, Concord and Bunker Hill. 95 (6th ed. 1903).
14 State v. Kessler, 289 Or. 359, 614 P.2d 94, 98-99 (1980). See also State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921).
15 Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). See also Warren v. District of Columbia, 444 A.2d 1 (D.C, Cir. 1981) (en banc).
16 Moore & Kelling, "To Serve and Protect'': Learning From Police History, 70 The Public Interest 49, 59 (1983).
17 Presser v. Illinois, 116 U.S. 252, 265 (1886), See also State ex rel. McGaughtey v. Grayston. 349 Mo. 700, l63 S.W. 2d 335 (l942) (en banc); People ex rel. Leo v. Hill, l26 N.Y. 497, 27 N.E. 789 (1891); 10 U.S.C. 311 (1971); Md. Ann. Code, art. 65 1, 5 (1979).
18 3 State Papers & Addresses of Gov. Herbert R. O'Conor, at 616-620 (1942). See also U.S. Home Defense Forces Study 58 (Office of the Sec. of Defense, Mar. 1981). On file with the Law Forum is a discharge certificate from the Md. Minute Men and an affidavit stating that personally owned arms were rifles, shotguns, pistols and hunting knives.
19 Restricting Handguns: The Liberal Skeptics Speak Out 184-85 (D. Kates, Jr. ed. 1979).
20 Dowlut & Knoop, State Constitutions and the Right to Keep and Bear Arms, 7 Okla. City U.L. Rev. 177 (1982); Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason L. Rev. l (1981 ); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); Debates of the Md. Convention of 1867, at p. 151.
21 R Neely, How Courts Govern America l8 (1981 ).
22 Quilici v. Morton Grove, 695 F.2d 261 , 270 n. 8 (7th Cir. 1982).
23 State v. Kessler, 289 Or. 359, _____, 61 4 P.2d 94, 95 (1980).

Dowlut & Beard, Attorneys