The Founding Fathers and the Second Amendment
- Introduction
The Founding Fathers stated in the Second Amendment, “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.”[1] In today’s society, the debates on gun control are impassioned and heated. Many wonder what right the Founding Fathers really wanted to recognize with the Second Amendment. Some, such as the former Solicitor General for the Clinton-Gore Administration, Seth Waxman, claim that the right to keep and bear arms is a right belonging to the people collectively as a State.[2] Others, such as former Attorney General of the United States, John Ashcroft, believe that the right is a personal right belonging to the people as individuals.[3] By looking at the text and structure of the Second Amendment together with other parts of the Constitution and the Bill of Rights, and by studying the comments of the Founding Fathers, it becomes clear that the Second Amendment was indeed intended to recognize the right of the people as individuals to keep and bear arms.[4]
David Harmer, an attorney and former candidate for the U.S. Congress (Utah 1996; California 2009 & 2010) declared why it is important that we properly understand the meaning of the Second Amendment:
If one believes that the people are to serve the state, that the rights of the people are created or granted by the state, or that the security of the state itself is of paramount importance, then the right to keep and bear arms is a dangerous vehicle for subversion that must be eliminated; and eliminated it has routinely been in totalitarian countries. If one believes the opposite – that neither the people nor their rights were meant to serve the state, but that people were endowed by their Creator with certain inalienable rights, and that the state was created to secure those rights – then the Second Amendment assumes awesome importance, not only in recognizing one among many particular rights of the people, but also providing an independent means of preserving and enforcing those rights.[5]
The Declaration of Independence gives us a small glimpse into the beliefs of the Founding Fathers concerning the right to keep and bear arms. Thomas Jefferson included in the Declaration as a self-evident truth that people have unalienable rights and that governments and that governments are created to secure these rights to man.[6] Listed among these rights, was the right and duty of the people to throw off despotic governments.[7] Despotic governments cannot be overthrown through normal political processes. The despots in power will not heed the voices of their citizens or subjects. Such was the case with the American Colonies. The Declaration of Independence describes how the Colonies had repeatedly sought a redress of their grievances through the King and Parliament of Great Britain but to no avail.[8] Only as a last effort did the Colonies turn to arms. The right of the individual to keep and bear arms is essential if the people are to remain capable of throwing off such despotic governments together with their armies.
To find the true meaning of the Second Amendment, one must look to the Founding Fathers and their views on what right they intended to recognize with this Amendment. First, one should examine the actual text of the Second Amendment to see what the Founding Fathers tried to communicate when they formulated the Amendment. Second, one should analyze how the Founding Fathers structured the Constitution and the Bill of Rights to determine the meaning of the Second Amendment rights based on other rights expressed in the Constitution and other amendments. Finally, one needs to refer to the Founding Fathers themselves, to what they said about guns and firearms, and about the Second Amendment in the Founding Era.
- The Text of the Second Amendment
The Second Amendment reads, “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.”[9] After a cursory reading of the text of the Second Amendment, several factors stand out. First, is the opening clause, “A well-regulated militia, being necessary to the security of a free State,” as an introductory clause to the main portion of the Amendment. Second, is the part that declares this right to be “the right of the people[.]” Third, is the right itself, “to keep and bear arms[.]” And the final phrase of the Amendment, “shall not be infringed,” consists of a general constrain on governments not to interfere with this right.
- Purpose of the Introductory Clause
The introductory clause of the Second Amendment states, “A well-regulated militia being necessary to the security of a free State.” Some argue that the introductory clause means that the right to keep and bear arms belongs only to the States so that they can arm the militia.[10] However, in the Founding Era, only one editorial has been found attacking the Second Amendment, and the only part of the Amendment it attacked was the introductory clause because of it apparent inefficiency.[11] The editorial was written by the well-known Anti-Federalist “Centinel” who said, “It is remarkable that this article only makes the observation ‘that a well-regulated militia, composed of the body of the people, is the best security of a free State;’ it does not ordain, or constitutionally provide for, the establishment of one.”[12] Centinel viewed this clause as a mere observation without any power. To understand the introductory clause as guaranteeing the States the right to arm their own militias, or guaranteeing any other right, was an interpretation that was not known during the Founding Era. The introductory clause was viewed simply as a declaratory statement.
The Constitution is a document of limited, enumerated powers granted to the government. It already gave power to the federal government to provide arms and training for the State militias before the Second Amendment was ratified.[13] Nowhere in the Constitution is it mentioned that the States were deprived of this right should the federal government fail in its duties. Nowhere are the States forbidden from organizing a militia. The right contained in the second half of the sentence would stand even without the opening declaratory phrase.
Grammatical rules also show that the Founding Fathers intended the introductory clause of the Second Amendment as a mere observation that neither granted any rights nor made any rights conditional. Rules of statutory construction reveal that an introductory clause merely states a reason why a right might be granted, but has no bearing on what the actual right is.[14] For example, a law stating that trial by jury being the best method to discover the truth, the right to a jury trial shall not be denied, the denial of a jury trial would be found in violation of the law even if later studies showed that a bench trials with a judge but no jury, were more successful than jury trials in discovering truth. Thus, the introductory clause has no bearing on the actual right.
In expounding the original meaning of the Second Amendment, the Fifth Circuit Court said,
It seems clear under longstanding and generally accepted principles of statutory construction, that, at least where the preamble and the operative portion of the statute may reasonably be read consistently with each other, the preamble may not properly support a reading of the operative portion which would plainly be at odds with what otherwise would be its clear meaning.[15]
The clear meaning of the operative clause of the Second Amendment is that the people have the right to keep and bear arms. The next logical question then is, who are the “people” to whom the Founding Fathers referred?
- The People
Some argue that the term “the people” means the people collectively as a State.[16] David Harmer noted that even “[s]everal federal courts have held that the Second Amendment does not establish an individual right to keep and bear arms, but rather a ‘collective’ right, whatever that is, or a right held by the States.”[17] This interpretation, however, is contrary to the meaning given the term “the people” in other parts of the Bill of Rights. Don B. Kates, Jr. makes an outstanding argument in his law review article entitled Handgun Prohibition and the Original Meaning of the Second Amendment, to show that the term “the people,” as used in the Second Amendment, was used to guarantee the individual right to keep and bear arms.[18]
The phrase “the people” appears in four other provisions of the Bill of Rights, always denoting rights pertaining to individuals. Thus, to justify an exclusively state’s right view, the following set of propositions must be accepted: (1) when the first Congress drafted the Bill of Rights it used “right of the people” in the first amendment to denote a right of individuals (assembly); (2) then, some sixteen words later, it used the same phrase in the second amendment to denote a right belonging exclusively to the states; (3) but then, forty-six words later, the fourth amendment’s “right of the people” had reverted to its normal individual right meaning; (4) “right of the people” was again used in the natural sense in the ninth amendment; and (5) finally, in the tenth amendment the first Congress specifically distinguished “the states” from “the people,” although it had failed to do so in the second amendment. Any one of these textual incongruities demanded by an exclusively state’s right position dooms it. Cumulatively, they present a truly grotesque reading of the Bill of Rights.[19]
All of the other amendments in the Bill of Rights referring to right belonging to “the people,” the First,[20] Fourth,[21] Ninth,[22] and Tenth,[23] refer to individual and not collective rights. It is only logical that the Second Amendment would follow this pattern.
The Founding Fathers specifically and clearly differentiated between a “State” and “people” when they wrote the Second Amendment as well as when they wrote the other parts of the Constitution.[24] If the Founding Fathers had meant for the right to bear arms to be a right belonging to the people collectively as a State, then they could have written the amendment to read, “A well-regulated militia being necessary to the security of a free State, the right of the States to keep and bear Arms shall not be infringed.”[25] This would have made the meaning explicitly clear that the right to bear arms belonged to the people collectively. But the Founders did not write the amendment in that manner. Instead, they differentiated between the State and the people. This differentiation is even more pronounced in the Tenth Amendment.
The Tenth Amendment makes a clear and succinct differentiation between a State and the people. It reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectfully or to the people.”[26] It, along with the Ninth Amendment,[27] recognizes that certain rights are personal rights, belonging to individual persons and not to the people collectively as a State. The Tenth Amendment was passed at the same time as the Second Amendment by the First Congress meeting under the new Constitution. If that Congress had wanted to recognize the right to keep and bear arms a collective right of the people, they would have said so by reserving the right to keep and bear arms to the State and not to the people. The Fifth Circuit Court of Appeals was correct when it stated, “[i]t appears clear that ‘the people,’ as used in the Constitution, including the Second Amendment, refers to individual Americans.[28]
- The Militia
Critics of the personal right to bear arms refer back to the introductory phrase of the Second Amendment to claim that only those serving in the militia, which they claim in our modern society is a State’s National Guard, have a right to bear arms.[29] This view of the right to bear arms does not hold sway for two reasons. First, the militia at the time of the adoption of the Second Amendment consisted of all free white male citizens capable of bearing arms, or the people in general.[30] Second, the Founders were afraid of standing armies and a select militia, like our National Guard today, too closely resembled a standing army to be accepted by the Founders.[31]
At the time of the Founding Fathers, the militia was composed of the population in general, or at least of all the free white male inhabitants of a State.[32] In 1792, Congress, meeting immediately after the enactment of the Second Amendment, defined the militia to include the entire able-bodied military-aged male citizenry of the United States and required each of them to own his own firearm.[33] These people were expected to fight for the defense of their State or country and to provide their own arms for that defense.[34]
The Founders also had a great fear of and contempt for standing armies.[35] This fear of standing armies was brought to the forefront during the Revolutionary War. General Washington wrote several letters describing his inability to rely effectively on the militia[36] and his concern that short enlistments and a reliance on the militia would lead to the defeat of the American cause.[37] Yet, Congress was hesitant to extend enlistments and to create a standing army despite General Washington’s fears.
This fear of a standing army made the colonists dependent on the militia system. The Founding Fathers were well versed in classical literature[38] and knew that republics in the past had relied on their citizens to become the army of the republic when necessary.[39] But to be an effective army, the members composing the army need not only have weapons, but they must be well-versed in their use as well. Thus, the Second Amendment expressly embraces an individual right to keep and bear arms; for “it erects the very scaffolding of a free state upon that guarantee.[40](Emphasis in original). A well-regulated militia must be drawn from the people who have a right to keep and bear arms and are well-trained in their usage, rather than from a people without the rights to keep and bear arms and who are unfamiliar on how to use them effectively.[41]
In the Declaration of Independence, Thomas Jefferson claimed one of the great offenses committed by King George was the establishment of a standing army in the colonies. [42] In order to prevent eh creation of a standing army in the United States under the Constitution, the Founders inserted a clause into the Constitution stating that no money for the support of an army should be appropriated for a term of more than two years.[43] Without money to survive, no standing army could exist.
The Founding Fathers also feared the concept of a “select militia” because such a militia too closely resembled a standing army and could lead towards disarming the people in general. In the Pennsylvania ratifying convention, John Smilie warned, ‘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 shall be no militia at all. When a select militia is formed; the people in general may be disarmed.”[44]
Richard Henry Lee who authored the Letters From a Federal Farmer and who was opposed to adopting the Constitution without a Bill of Rights also lamented the dangers of a select militia. [45] “Should one fifth or one eights part of the men capable of bearing arms, be made a select militia, as has been proposed, … and all the others put upon a plan that will render them of no importance, the former will answer all the purposes of an army, while the latter will be defenseless.”[46]
Later, Lee went on to speak out against a select militia and to describe the character of a true militia.
A militia, when properly formed, are in fact the people themselves, and render regular troops unnecessary … [T]he constitution ought to secure a genuine [militia] and guard against a select militia, by providing that the militia shall always be kept well organized, armed, disciplined, and include … all men capable of bearing arms; and that all regulations tending to render this general militia useless and defenceless, by establishing a select corps of militia, … be avoided.[47]
Lee Further declared the dangers associated with a select militia, such as today’s National Guard.
But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot be well called out, or depended upon; that we must have a select militia … These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and ever must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas 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; … The mind that aims at a select militia, must be influenced by a truly anti-republican principle. [48]
It was Lee’s belief, shared by the Founding Generation generally, that a select militia should be avoided and that individual Americans should possess arms, train themselves to use them, and come together to form a general militia.
- “To Keep and Bear Arms”
The right to keep and bear arms, however , is an individual right and not limited to those who are actively engaged in militia service.[49] Again this is a right belonging to “the people”.[50] At the time of the Founding Era, people understood the term “to bear arms” as more than just carrying arms in military service.[51] At the time of the Founders, the Constitutions of Kentucky, Ohio, Pennsylvania, and Vermont all guaranteed their citizens the right to ear arms specifically for individual self-defense, while many of the other States guaranteed the right to bear arms in more general terms.[52] Robert Whitehill, representing a minority of delegates to the Pennsylvania ratification convention, even proposed the following amendment to the United States Constitution; “That the people have a right to bear arms for the defense of themselves … or for the purpose of killing game.” [53] There was no requirement that a person could only “bear arms” while engaged in military endeavors.
Further evidence showing that the right to “keep and bear arms” was not limited to military service, comes from the First Senate of the United States under our present Constitution. While debating the wording of the Second Amendment, the Senate specifically rejected a proposal to add the words “for the Common defense” after the phrase “to keep and bear arms.”[54] That the Senate should reject such a proposal exemplifies their belief that the right of the people to keep and bear arms was a private right, not a mere duty required for militia service.
The Bill of Rights was understood to guarantee protection of individual freedoms.[55] It is significant that the right to keep and bear arms immediately followed the First Amendment, which guaranteed the personal freedoms of speech, assembly, and religion.[56] Each of the first eight amendments guaranteed private rights belonging to individuals.[57] The Third Amendment protects an individual’s right not to be forced to quarter soldiers against his will;[58] the Fourth Fifth and Sixth Amendments protect individual rights in criminal matters;[59] the Seventh Amendment guarantees an individual’s right to a jury trial in a civil case;[60] and the Eighth Amendment protects individuals from cruel and unusual punishments and excessive bail.[61]
The Founding Fathers, however, were concerned that the enumeration of certain rights in a bill of rights might be misinterpreted to mean that the people only had the rights that were enumerated.[62] In order to overcome this misperception, the Founders passed the Tenth Amendment. The Tenth Amendment makes clear that other rights existed, which belonged not just to States, but to “the people” as well.[63] This Amendment makes a clear distinction between State, or the people in a collective sense, and the people in an individual capacity.
Justice Story, who was appointed to the United States Supreme Court by Thomas Jefferson, understood the Bill of Rights to be composed of individual rights.[64] In his Commentaries on the Constitution of the United States, Story declares tat bills of rights “are in their origin stipulations between kings and their subjects … reservations of rights not surrendered to the prince.”[65] He refereed to the English Bill of Rights in 1688, stating that it secured personal rights against encroachment not just from the king, but form parliament was well.[66] “Among these individual rights was the right of the subjects to bear arms.”[67]
James Madison, known as the Father of the Constitution and of the Bill of Rights, clearly intended the right to keep and bear arms to be an individual right protected by the Constitution. In a letter to Edmund Pendelton, Madison wrote, “[t]o secure ratification of the “Constitution, the Federalists had omitted themselves to the addition of ‘further guards for private rights.’”[68] Madison further commented in his notes that the amendments, in which the right to arms appears very early, “relate first to private rights.”[69]
Madison originally intended to put the rights guaranteed in the Bill of Rights, into the body of the Constitution.[70] In doing so, he put he right to bear arms in with other individual rights contained in the text of the Constitution.[71] Madison chose to place the right of the people to keep and bear arms in article 1, section 9 of the Constitution, immediately following clauses 2 and 3.[72] This placement of the text follows the personal rights guaranteed by the Constitution, securing the right of habeas corpus and prohibiting bills of attainder and ex post facto laws. Justice Story declared that laws securing the writ of habeas corpus, forbidding bills of attainder and prohibiting ex post facto laws, were all right belonging to citizens, not rights of states.[73]
Had Madison meant for the right to keep and bear arms to be a right exclusively belonging to members of the State militia, he could have placed it behind article 1, section 8, clauses 15 and 16, which deal with congressional control over organizing, disciplining, and arming the militia.[74] However, the best place to put the right had Madison believed it to be a right belonging to the people collectively as a state, would be after clause 3 of article 1, section 10 in the Constitution. This clause reads, “No sate shall, without the consent of Congress, … keep Troops, or Ships of War in times of Peace, … or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”[75] Article 10 is composed entirely of State rights and prohibitions. Section 3 deals with States’ rights concerning war powers. Had Madison understood the right to keep and bear arms as a right belonging to the people collectively as a State, the best place to put the right would have been immediately following the clause allowing a State to engage in war when actually invaded or in imminent danger. This would have guaranteed the States the right to have the arms necessary to repel such an invasion or danger.
It is clear from the structure of the Constitution and the Bill of Rights, that the Second Amendment right to keep and bear arms was intended to be an individual right belonging to the people and not a collective right belonging to the States.
- The Founders Speak
- Philosophical Background
The influences of the republican philosophical tradition of the individual right to bear arms upon the Founding fathers is obvious from their own statements.[76] The English Bill of Rights,[77] Blackstone,[78] Montesquieu,[79] and Locke [80]all claimed that individuals had a right to possess arms for their own defense, for the defense of the republic, and for the defense of their rights against the government. Blackstone even went so far as to classify the right to possess arms for home defense s among the five rights necessary “ to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.”[81] Blackstone considered these three rights to be “absolute rights of individuals.”[82] Newspaper editorials of the founding period and comments of other lesser-known people abound with favorable references to the citizenry’s widespread possession of personal arms as a characteristic necessary to preserve liberty and to keep government in check.[83]
These writings express fears that the new federal government might disarm the populace, leaving them defenseless against governmental tyranny.[84] Both the Federalists and the Anti-Federalists agreed that the right to keep and bear arms was an individual right and was necessary to preserve liberty.[85] Noah Webster, in a pamphlet entitled “A Citizen of America,” encouraging the ratification of the new Constitution, stated, “Before a standing army can rule, the people must be disarmed; as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed …”[86] In short, the accepted philosophy of the times treated the right to arms as among the most vital of personal rights.[87]
People in general, at the time of the Bill of Rights was adopted, believed that the entire Bill of Rights, including the Second Amendment, protected wholly personal right. Albert Gallatin of the New York historical Society stated in October of 1789, “The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals … It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.”[88]
Despite claims by some historians, guns were commonplace in colonial America.[89] In Georgia, a 1770 law actually required men to carry a rifle or pistol every time they attended church; church officials were empowered to search each parishioner no less than fourteen ties per year to assure compliance.[90] Guns were viewed as so essential and the right of every adult male to possess a gun so fundamental, that every colony had laws that forbade confiscating a person’s guns to even satisfy a debt![91]
The Founding Generation viewed the personal right to keep and bear arms as so vital and fundamental that five state ratifying conventions endorsed amending the constitution to assure the right to arms was protected.[92] By comparison, Mr. Kates, author of Handgun Prohibition and the Original Meaning of the Second Amendment, points out that only four states suggested that the rights to assemble, to due process, and against cruel and unusual punishment be guaranteed; only three states suggested that freedom of speech be guaranteed or that the accused be entitled to know the crime for which he would be tried, to confront his accuser, to present and cross-examine witnesses, to be represented by counsel, and not to be forced to incriminate himself. Only two states proposed that double jeopardy be barred.[93]
The states recommending adoption of the right to possess arms as part of the Bill of Rights, expressly revealed their understanding that the right is an individual right. New Hampshire recommended the right be worded, “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”[94] Virginia worded her recommendation thus, “That the people have a 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.”[95] This wording makes it clear that the right of the people to keep and bear arms was independent of militia service, for the right is listed as an entirely independent clause. The clause concerning the militia is also entirely independent of the clause guaranteeing the right of the people to keep and bear arms. This second clause commands that the militia is to consist of the “body of the people, trained to arms.” Another entirely independent clause followed this clause concerning standing armies.[96] These subjects were possibly included together in one recommended amendment because the subject matter was similar, but the rights themselves were clearly kept independent of each other. The other three states, New York, Rhode Island, and North Carolina, worded their recommendations similarly.[97] The Pennsylvania minority and Samuel Adams of Massachusetts, both unable to convince their states to recommend the adoption of a Bill of Rights when ratifying the Constitution, made clear their understanding that the right to possess arms was a personal right.
The Pennsylvania minority worded their recommendations to ensure that the individual right nature of the right to possess arms was unmistakable.[98] “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 of them unless for crimes committed, or real danger of public injury from individuals…”[99]
Samuel Adams recommended to the ratifying convention of Massachusetts that the Bill of Rights include, “that the said Constitution be never construed to authorize Congress to … prevent the people of the Unites States, who are peaceable citizens, from keeping their own arms.”[100]
- Madison
James Madison, the person who would perhaps know best whether or not the right to keep and bear arms was a personal right since he wrote and proposed to the first Congress under the Constitution the draft of the Bill of Rights and was a member of that Congress when it adopted them, believed that the right was indeed a personal one.
i
[1] U.S. Const. Amend. 2
[2] James O.E. Norell, In Step with the Founding Fathers, AM 1st Freedom, 35-36 (Jul 2001)
[3] John Ashcroft, Letter from John Ashcroft to James Jay Baker, Am. 1st Freedom, 37 (Jul 2001)
[4] The Supreme Court of the United States finally decided this issue in v. Heller, and held that the right to keep and bear arms is an individual, and not a collective, right. This decision was rendered after I originally wrote this paper for my law school course, Origins of the Constitution.
[5] David Harmer, Securing a Free State: Why the Second Amendment Matters, 1998 B.Y.U.L. Rev. 55 – 56 (1998).
[6] Declaration of Independence [¶2] (1776)
[7] Id.
[8] Id. at [¶¶ 30 – 31] 1776.
[9] U.S. Const. Amend. 2
[10] U.S. v. Emerson, 46 F. Supp. 2d 598 at 600 (N.D. Texas 1999).
[11] Stephen P. Halbrook, That Every Man Be Armed, 80 (The Independent Institute, Oakland, CA 1994).
[12] Id. citing Centinel, Revived, No. xxix, Independent Gazetteer, 19 Sep. 1789, at 2, col. 2
[13] U.S. Const. Art. 1 § 8 cl. 16.
[14] U.S. v. Emerson, 270 F.3d 203, at 233 (5th Cir. 2001).
[15] Id.
[16] Akhil Reed Amar, The Bill of Rights 51 (R.R. Donelly & Sons Company 1998).
[17] Harmer, supra n. 3 at 60.
[18] Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983).
[19] Id. at 218.
[20] “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Emphasis added).
[21] “The right of the people to be secure in their persons, houses, papers, and effect, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis added).
[22] “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Emphasis added).
[23] “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectfully, or to the people.” (Emphasis added).
[24] U.S. Const. Amend, 10.
[25] William van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 at 1242 – 1243 (1994).
[26] U.S. Const. Amend. 10
[27] The Ninth Amendment reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
[28] U.S. v. Emerson, 270 F.3d 203 at 229 (5th Cir. 2001).
[29] Amar, supra n.15 at 51.
[30] The Bill of Rights: Original Meaning and Current Understanding 124 (Eugene W. Hickok, Jr., ed., University Press of Virginia 1991) [Hereinafter Original Meaning].
[31] U.S. v. Emerson, 270 F.3d 203 at 250 – 251 (5th Cir. 2001).
[32] Original Meaning supra n. 29 at 124.
[33] Kates, supra n. 17 at 216 referring to the First Militia Act, 1 Stat. 271 (1792).
[34] Id.
[35] Pauline Maier, American Scripture: Making the Declaration of Independence 128 (Alfred A. Knopf 1997).
[36] George Washington, Writings 208 – 260 (John Rhodehamel, ed., Literary Classics of the United States, Inc., 1997).
[37] Id. at 247 Letter to John Augustine Washington.
[38] Jefferson, Writings, Letter to Robert Shipwith, 1771 740 – 745 (Merrill D. Peterson, ed., Literary Classics of the United States, Inc., 1984) [Hereinafter Jefferson].
[39] Montesquieu, The Spirit of the Laws (1775) as compiled in Readings on the Origins if the Constitution of the United States of America Ch. 5 p. 21 (Lynn D. Wardle, ed., Lynn D. Wardle 2001)
[40] Alstyne, supra n. 24 at 1243
[41] Id. at 1243 – 1244.
[42] Declaration of Independence [¶¶ 13, 16, 17] (1776)
[43] U.S. Const. Art 1 § 8 cl. 12.
[44] Hallbrook, supra n. 10 at 73 citing 2 Documentary History of the Ratification of the Constitution 509 (Kaminiski and Saladino eds., 1981).
[45] Id. at 70.
[46] Id. citing R. Lee Letters From a Federal Farmer in Pamphlets on the Constitution of the United States 305-306 (P. Ford ed. 1888).
[47] Id. at 71 citing R. Lee Letters From a Federal Farmer in Pamphlets on the Constitution of the United Sates 169 (P. Ford ed. 1888).
[48] Id. at 71 -72 citing R. Lee Letters From a Federal Farmer in Pamphlets on the Constitution of the United Sates 169 (P. Ford ed. 1888).
[49] U.S. v. Emerson, 270 F. 3d 203 at 231-232 (5th Cir. 2001).
[50] Id.
[51] Id. at 230
[52] Id.
[53] The Debate on the Constitution, Part One 871-872 (Bernard Bailyn ed., Literary Classics of the United States, Inc., 1991) [Hereinafter Debate, Part One].
[54] Halbrook, supra n. 10 at 81 citing Senate Journal, MSS. By Sam A. Otis, Virginia State Library, Executive Communications Box 13 (9 Sep 1789) at 1.
[55] Kates, supra n. 17 at 223.
[56] U.S. Const. Amend. 1.
[57] Id.
[58] U.S. Const. Amend. 3.
[59] U.S. Const. Amend. 4 – 6.
[60] U.S. Const. Amend. 7.
[61] U.S. Const. Amend. 8.
[62] Leonard W. Levy, Origins of the Bill of Rights 20 – 21 (Yale University Press 1999).
[63] U.S. Const. Amend. 10.
[64] Joseph Story, Commentaries on the Constitution of the United States, Vol. III, 713-720 (Hilliard, Gray, and Company 1833) [Hereinafter Story, Commentaries].
[65] Id. at 714
[66] Id. at 718.
[67] Id.
[68] Kates, supra n. 17 at 223 (1983) citing 11 Papers of James Madison 307 (R. Rutland & C. Hobson ed. 1977) (Letter of Oct. 20, 1788, from Madison to Edmund Pendelton).
[69] Id. at 223 citing 12 Papers of James Madison 193 – 194.
[70] Id. at 223
[71] Id.
[72] Id.
[73] Story, Commentaries supra n. 63 at 714.
[74] Id.
[75] U.S. Const. Art. 1, § 10, cl. 3.
[76] Id. At 235.
[77] The Declaration of Rights, Declaration 7 (1688) as compiled in The Spark of Independence 5 (History Book Club 1997).
[78] William Blackstone, I Blackstone’s Commentaries 144, (St. George Tucker, ed., vol. 2., 1803, Augustus M. Kelley Publishers, New York, NY 1969) [Hereinafter Blackstone].
[79] Kates, supra n. 17 at 231.
[80] See John Locke, Of the Dissolution of Government, The Second Treatise of Government, as compiled in The Spark of Independence 47 – 68 (History Book Club 1997).
[81] Blackstone, supra n. 77 at 141-145.
[82] Id.
[83] Kates, supra n. 17 at 235.
[84] Id.
[85] Id. At 221.
[86] Debate, Part One supra n. 52 at 155.
[87] Kates, supra n. 17 at 235.
[88] The Citizen’s Committee for the Right to Keep and Bear Arms, CCRKBA Home, Quotes of the Founding Fathers and Their Contemporaries http://www.ccrkba.org/pub/rkba/general/Founders/quotes.htm (accessed Feb 21, 2002).
[89] Michael A. Bellesiles, Arming America; The Origins of a National Gun Culture 5 (Alfred A. Knopf 2000).
[90] Kates supra n. 17 at 215-216 citing An Act for the Better Security of the Inhabitants by Obliging the Male White Persons to Carry Fire Arms to Places of public Worship, 1770 reprinted in 1775 – 1770 GEORGIA COLONIAL LAWS 417 (1932).
[91] Kates, supra n. 17 at 241.
[92] Id. At 222.
[93] Id.
[94] Original Meaning supra n. 29 at 124.
[95] Id.
[96] Id.
[97] Id.
[98] Kates, supra n. 17 at 122.
[99] Debate, Part One supra n. 52 at 872.
[100] Original Meaning supra n. 29 at 124.
