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.

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.

Dowlut & Beard, Attorneys