The 2nd Amendment: To Keep And Bear Arms
San Francisco Barrister Law Journal, Vol. 8, No. 12, Dec. 1989
by Robert Dowlut
The 2nd Amendment guarantees that "A well regulated
militia being necessary to the security of a free State, the
right of the people to keep and bear arms shall not be
infringed.''
The 200th anniversary of the Bill of Rights is nearing. The
purpose of its guarantees was to enunciate a set of fixed rights
that may not be trespassed upon by any branch of government. The
Constitution was not adopted as a means of enhancing the
efficiency with which government officials conduct their affairs.
Rather, it was meant to provide a bulwark against infringements
that might otherwise be justified as necessary expedients of
governing. While a court must give due consideration to the needs
of the other branches of government, a court's role in
constitutional interpretation is to ensure that constitutional
restraints on governmental power are enforced. Establishing the
protected boundaries of a constitutional right such as the 2nd
Amendment, by analyzing the four corners of its guarantee, is
indispensable. While bright boundary lines cannot always be
drawn, this is a more principled approach to constitutional
interpretation than, for example, merely applying such
unrestrained or undefined labels as ''valid exercise of police
power'' or "reasonable regulation'' whenever a challenge is
made to a constitutional right, or than denying the existence of
the right by interpreting it in such a fashion that it becomes an
intangible abstraction.
Historical Background & The Framer's Intent
The framers of the Constitution were aware that at
common law the carrying of arms was unlawful only if it appeared
to be male animo (with malice) and ''to terrify the King's
subjects.'' Otherwise, it was not an indictable offense, nor any
offense at all. The framers were also aware of England's
plutocratic game laws and other clever measures by the crown to
disarm dissidents and suspect classes. See, e.g , Rex v.
Knight, 87 Eng. Rep. 75 & 90 Eng. Rep. 330 (K.B. 1686); Judy
v. Lashley, 41 S.E. 197, 200 (W.Va.. 1903); Malcolm; The
Right of the People to Keep and Bear Arms: The Common Law
Tradition, 10 Hastings Const. L.Q. 285 (1983).
British troops during the Revolutionary War did not confine their
seizures to the colonists' armories and magazines. They also
seized the arms of individual civilians. Bostonians were forced
to surrender 1, 778 muskets, 634 pistols and 38 blunderbusses. R.
Frothingham, History of the Siege of Boston 95 (6th ed.
1903). The July 6, 1775, Declaration of the Causes and
Necessity of Taking Up Arms by the Continental Congress
included the complaint that General Gage had disarmed the
inhabitants of Boston. Documents of American History 92,
94 (H. Commager ed., 5th ed. 1949).
Against this background the so-called "anti-federalists''
demanded a "Bill of Rights'' and proposed 186 amendments.
However, the Constitution was initially ratified by the states
without amendments, but with the understanding that a Bill of
Rights would be immediately submitted to the people.
When the state conventions were voting to adopt the Constitution,
in seven states either majority or minority proposals on arms
surfaced. For example, the minority in Pennsylvania, on December
15, 1787, was the first to offer 15 additional rights guarantees,
and these proposed guarantees eventually found their way into the
1st, 2nd, 4th, 5th, 6th, 8th and 10th Amendments.
The seven state proposals covered all of the traditional uses of
arms. Most importantly, each of the proposals guaranteed a right
to bear arms, to keep arms, or both. The proposals also clearly
did not intend to restrict this right to military purposes, for
it would be pointless to guarantee a right to keep and bear arms
to the people if the only purpose was to allow a state to have a
militia. The task before the framers, then, was not to choose
whether or not a provision to keep and bear arms should be
included, but simply to find language to attempt to please
everyone in drafting what would ultimately become the 2nd
Amendment.
The Federal Gazette & Philadelphia Evening Post, of June 18,
1789, in an article entitled Remarks on the first part of the
Amendments to the Federal Constitution, moved to the 8th instant
in the House of Representatives, explained the 2nd Amendment
right to keep and bear arms:
........ As civil rulers, not having
their duty to the people duly before
........ them, may attempt to
tyrannize, and as the military forces which
........ must be occasionally raised
to defend our counts might pervert
........ their power to the injury
of their fellow-citizens, the people are
........ confirmed by the next
article in their right to keep and bear their
........ private arms.
This contemporary exposition must be given great weight. It
demonstrates the common understanding of both the people and the
framers.
Recently a proposed Bill of Rights, in the handwriting of one of
the framers -- Roger Sherman -- dated July, 1789, was discovered
in a collection of James Madison's personal papers. It mentioned
the militia, but omitted any reference to a right of the people
to keep and bear arms. Handwritten Draft of a Bill of Rights
Found, N.Y Times, July 29, 1987, p. Al. The framers'
ultimate decision not to adopt the Sherman proposal indicates
that they felt it was inadequate.
On Wednesday September 9, 1789, a motion in the Senate to insert
"for the common defence'' next to the words ''bear arms''
was defeated. This also underscores a refusal to limit the right.
All of this historical evidence demonstrates that the framers had
two separate objectives in mind in drafting the 2nd Amendment:
(1) to recognize the importance of a militia to a free state and
(2) to guarantee a right to keep and bear arms for traditionally
lawful purposes. Georgia's Judge Lumpkin espoused such a view. See
Nunn v. State, 1 Ga. (1 Kel.) 243 (1846). (See also
Hardy, The Second Amendment and the Historiography of the
Bill of Rights, 4 J. Law & Politics 1 (1987).)
Rules of Constitutional Interpretation
U.S. Supreme Court Justice William Paterson, a signer of
the federal constitution, admonished in an early opinion 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 sun of the political system, around
........ which all Legislative,
Executive and Judicial bodies must revolve.
Vanhorne's Lessee v. Torrance, 2 U.S. (2 Dall.) 304, 308
(1795). The framers had earlier embraced Lord Coke's dicta that
Parliament (in the framers' case, Congress) is not supreme. See Dr.
Bonham's Case, 77 Eng. Rep. 646, 652 (1610). However, when
it comes to the 2nd Amendment, it seems, these critical peoples
are often ignored. See Mosk, Gun Control Legislation: Valid
and Necessary, 14 N.YL.F. 694 (1968).
Rules of Interpretation
Constitutional rights such as those preserved in the 2nd
Amendment are to be honored equally. An explicit guarantee in the
Bill of Rights protects fundamental rights. Furthermore, a
constitutional right must be broadly interpreted. See Valley
Forge College v. Americans United, 454 U.S. 464, 484 (1982);
Ullman v. United States, 350 U.S. 422, 428-29 (1955); San
Antonio School District v. Rodriguez, 411 U.S. 1, 33 (1973);
Boyd v. United States, 116 U.S. 616, 635 (1886). Neither
oppressive fees nor a 24-hour waiting period may be imposed on
the exercise of a right. See Harper v. Virginia Board of
Elections, 383 U.S. 663 (1966); City of Akron v. Akron
Center for Reproductive Health, 462 U.S. 416 (1983).
Any string cite of modern cases (that have upheld even
confiscatory arms legislation) will reveal, however that the
personal predilections of judges too frequently reign supreme --
rather than the mandate of the Constitution. Some courts simply
overlook history. Justice Neely of the West Virginia Supreme
Court has quipped that
. . . . 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.
Neely How Courts Govern America 18 (1981). See also
Dowlut, The Right to Arms: Does the Constitution or the
Predilection of Judges Reign? 36 Okl. L. Rev. 65 (1983).
Nevertheless, a well-settled general rule is that courts are
obligated to overrule erroneous precedent, and this rule should
and must be observed with respect to those cases which have
threatened the guarantees contained in the 2nd Amendment. See
Powell v. McCormack, 395 U.S. 486, 546-47 (1969); Erie
R.R. v. Tompkins, 304 U.S. 64, 79 (1938).
The States And The Right To Arms
The Constitution is a grant of limited power and its
Bill of Rights -- including the 2nd Amendment -- is a further
restriction on power The legislature of a state (unlike
Congress), however, does not depend for its authority upon an
express grant of legislative power. A state's bill or declaration
of rights is a restriction of power. It must be examined to
ascertain the restraints which the people have imposed upon the
state legislature, not to determine the powers they have
conferred.
The constitutions of 43 states guarantee a right to keep and bear
arms. In Illinois, Kansas, and Massachusetts that guarantee has
been either judicially repealed or rendered lifeless. However,
even in states without a specific guarantee to arms, the right to
self-defence serves as an independent source to guarantee a right
to arms. For example, the framers of Art. 1, §1 of the
California Constitution did not expect people to defend
themselves with their bare hands and feet. Dowlut & Knoop, State
Constitutions and the Right to Keep and Bear Arms, 7 Okl.
City U. L. Rev. 177 (1982); S. Halbrook, A Right to Bear Arms
(Greenwood Press 1989).
According to even the notorious case of Dred Scott v.
Sandford, 60 U.S. (19 How.) 393, 417, 450 (1857), privileges
and immunities of free men include the right ''to keep and carry
arms wherever they want,'' and the rights Congress cannot deny
include ''the right to keep and bear arms.'' After the Civil War;
the 14th Amendment was intended to extend the rights enunciated
in Dred Scott to all persons, including former slaves,
and to prevent such rights from being infringed by the states. S.
Halbrook, That Every Man Be Armed 107 (Univ. N. Mex.
Press 1984; Sprecher, The Lost Amendment, 51 A.B.A.J.
554 & 665 (2 parts) (1965). Thus, the right to bear arms
under the 2nd Amendment derives further support, both from
constitutional guarantees of the individual states and those of
later federal constitutional amendments.
Constitutionally Protected Arms
Under the 2nd Amendment, protected arms are not limited
to those of a militia. They include hand-carried defensive arms
and the modern equivalents of arms possessed by colonial
militiamen. While semi-automatic firearms are protected, arms of
mass destruction used exclusively by the military are not.
Because of space limitations, it is enough to list such
instructive cases on this proposition as: Nunn v. State,
1 Ga. (1 Kel.) 243 (1846); State v. Rupe, 683 P.2d 571,
595 (Wash. 1984; State v. Kessler, 614 P.2d 94 (Or.
1980); Rinzler v. Carson, 262 So.2d 661, 666 (F1a.
1972); State v. Keener, 107 S.E. 222 (N.C. 1921).
Practical Considerations
Beyond any of the foregoing discussion, is the matter of
the practical context in which the 2nd Amendment is to be applied
today. Various studies have established that the solid majority
of gun owners are non-criminal, and their guns simply have not
created the widespread proliferation of gang violence and other
social problems that confront this nation now. Fairness alone --
and notwithstanding the 2nd Amendment -- demands that these
responsible citizens not be used as scapegoats for society's
shortcomings. See Kleck, Policy Lessons from Recent
Gun Control Research, 49 Law Contemp. Prob. 35 (1986).,
Kleck, Crime Control Through the Private Use of Armed Force,
35 Social Prob. 1 (Feb. 1988).
Moreover since neither the police nor the state has a duty to
protect the individual citizen, see Davidson v. City of
Westminster, 32 Cal. 3d 197 (1982); DeShaney v.
Winnebago County Dept. of Social Services, 109 S.Ct. 998
(1989), he or she must be permitted to provide for his/her own
self-defense. The framers intended that the citizen not be left
defenseless; the 2nd Amendment exists to provide the means for
defense.
Conclusion
The founding fathers deemed a written constitution
necessary because their own bitter experiences impressed upon
them that the state cannot always be trusted to exercise power in
a reasonable manner The 2nd Amendment guarantees that the state
shall not have a monopoly on arms, and also ensures that
individual citizens have the means to defend themselves. Gandhi's
nonviolent methods would fail against the likes of a Hitler,
Stalin, or Pol Pot, and we should all remember that the
Constitution contains a mechanism for change should the people of
the United States ever decide it is necessary to modify the 2nd
Amendment.
Robert Dowlut received his J.D. from Howard
University in 1979. He is a member of the D.C. Bar.