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
..........game; 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
A. 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
..........like 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
..........be 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
..........win such a civil war, he
must also evaluate its effect in leaving the country
..........vulnerable to foreign
invasion.19
Regulation
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
Conclusion
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
..........is 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.
Notes
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).