The Founders’ Right to Keep and Bear Arms: The True Palladium of Liberty

This paper was written by Russell Liechty and is reprinted here with permission from the author.

The Founders’

Right to Keep and Bear Arms:

The True Palladium of Liberty 

“The true spirit and meaning of the amendments . . . cannot be understood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accomplish.”

_        The Supreme Court of the United States, in Strauder v. West Virginia, 1880

RUSSELL LIECHTY

November 2016

Introduction

The Founders considered it “self-evident” that the “Laws of Nature and Nature’s God” endowed all men with “certain unalienable rights.”[1] They sought to “secure these rights” by instituting a new Government, “laying its foundation on such principles” as they believed “most likely to effect their Safety and Happiness.”[2] These principles set the stage for the birth of the Constitution of the United States and its accompanying Bill of Rights.

This particular paper will focus on only one of those unalienable rights that they secured to effect their Safety and Happiness. It is expressed in the Second Amendment to the Constitution of the United States, and it 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.”[3]

Our Nation’s founding documents were written in the formal language of the era. Nineteenth-century language is vastly different from, and nearly foreign to, the vernacular of the twenty-first. Although the Second Amendment was “almost completely ignored by the academic community for the first two centuries of its existence,”[4] over the past several decades “an explosion of scholarship” has come forth, attempting to decipher the original intent, true meaning, and modern application of that single sentence. [5] Various models of interpretation have emerged.[6] In examining the text, historical documents, and contextual understanding of and impetus for the amendment, the most well-founded interpretation becomes evident: the Second Amendment affirms the pre-existing, Natural right of individual citizens to keep and bear arms of their choosing. This right was highly prized by the Founders, and as they understood and intended it, it was to be held and exercised by the people for myriad legitimate purposes, particularly in defense of freedom against tyranny.

The “true spirit and meaning”[7] of the Constitution and Bill of Rights can be understood by “carry[ing] ourselves back to the time when the Constitution was adopted” and striving to “conform to the most probable [meaning] in which it was passed.”[8] One must first attempt to see it through the eyes of the Founders; understanding it “requires understanding the British practices that drove the Americans to armed revolution.”[9] Its purpose can be derived from the contemporary situation, the founding generation’s own words, and the “history and tradition”[10] behind the development of the Constitution and the individual rights included with the adoption of the first ten Amendments.[11]

What was the Second Amendment’s purpose? Where did the Framers get the idea to explicitly include it? Why did they see it as crucial to their Safety and Happiness? In this paper, first explored will be the history of the right to arms among the people, beginning in England. Second addressed will be why the right was so important to the Founding generation. Third comes an examination of the text itself, and its drafts and development. Fourth and finally, this paper will endeavor to discover the contemporary understanding of the right, and interpret what they believed had been enshrined in the Second Amendment.

  1. The Origins of the Right to Keep and Bear Arms

The Foundations of Eighteenth Century American Thought

The ideas firmly believed by the Founders shared as broad a background as the men themselves.[12] The fifty-five Framers of the Constitution were an “eclectic group” from a wide variety of trades and backgrounds, but they were united in their objective to improve the government of their country.[13] Despite their varied origins, they were brought together in “a peculiar moment in history when all knowledge coincided, when classical antiquity, Christian theology, English empiricism, and European rationalism could all be linked.”[14] To them, the blend of knowledge from all these wise and reputable sources represented the pinnacle of reason and experience in the world to that date.[15] This blend of philosophy, religion, and reason created the foundation for their understanding of what governments ought (and ought not) to be, in conformity with what they perceived as eternal, unending truth about man, his relationship with God and the world, and rights that emit from those truths and that relationship.[16] These were not simply new, protean concepts that would change with time, but the discovery and articulation “of an unchangeable jurisprudence in accord with [God’s] covenants and in conformity with Natural law and reason.”[17]

Natural Rights

This unchangeable jurisprudence of the “Laws of Nature and Nature’s God” was innate and instinctive to the Framers.[18] Much of it had already been articulated by John Locke, the single most influential source to (and most frequently cited by) the Founders,[19] whose principles they considered “perfect.”[20] His exposition of Natural Law was “dominant” and “universally cited,”[21] as well as unequivocal: “The state of nature has a law of Nature to govern it.”[22] They held that even civil government is of divine origin, ordained of God for the good of the people.[23]

Natural Law implies Natural rights.[24] These rights are not granted by any government, but are bestowed by the Creator.[25] Consequently, they also cannot be revoked or destroyed by any government. The Founders understood that Natural Law certainly incorporated rights of justified armed defense and self-preservation, which Locke expounds clearly and at length.[26] Natural Law and Natural rights are superior to any other, are not dependent on any particular culture, time, or government, and were (to that generation) common sense and commonly understood and accepted as truth.[27] In fact, they believed that they had a duty to exercise their Natural rights; one pamphlet of the day avowed that whoever refused to assert his Natural rights “is guilty of the worst kind of rebellion; he commits high treason against God.”[28]

Therein lay the security for individual rights: an immutable code of law, sanctioned by the Creator, and designed to promote, preserve, and protect man and his fellows in the enjoyment of their rights.[29] “Those rights, then, which God and nature have established and are therefore called Natural rights . . . need not the aid of human laws to be more effectually invested in every man than they are . . . . On the contrary, no human legislature has power to abridge or destroy them.”[30]

This could arguably be changed to, “No human legislature justly has power to abridge or destroy them,” since many regimes throughout history have attempted to do so. Thus, while the codification of Natural rights neither creates nor strengthens in Nature what God has established, the danger of tyrants’ attempts to abridge or destroy them led the Founders to do so.

Clearly, not all the individual rights ultimately enumerated in the Constitution were Natural rights, but many were,[31] and the rights to self-defense and preservation—expressed and practiced as the right to keep and bear arms for the security of freedom—was of great importance among those Natural rights the Founders chose to codify.[32] They affirmatively “reserved that right unto themselves” through legislation, and held that “to keep arms for their own defence” was “a Natural right,” pre-existing, which they simply confirmed in writing.[33] The civil right to keep arms was specifically considered to be “founded in Nature, Reason, and sound Policy,”[34] and was retained by the people “in order to defend the liberties which GOD and Nature have given us . . . .”[35]

The Right to Keep Arms in England

When the American Bill of Rights was adopted, it was “not intended to lay down any novel principles of government, but simply to embody certain guarantees and immunities which [they] had inherited from [their] English ancestors.”[36] The English had enjoyed the exercise of the right to arms—and suffered its infringement—in just the century preceding the Founding.[37] Those colonists who remembered or whose ancestry lay in England knew what it felt like to retain and exercise this Natural right, and were not going to relinquish it.

But just because Natural Law (or civil government) decrees the existence of certain rights does not mean that earthly villains do not attempt to violate them. The right had not always been secure in England. The King of England, Charles II, was known as the “Merry Monarch.” He was given this name partly because anyone seemed merry compared to the brutal Oliver Cromwell, and partly because of his fondness for wine and women.[38] He did not, however, share that fondness for Protestants, who unfortunately for him made up 98 percent of his subjects.[39] The Merry Monarch ordered selective disarmament: those regions home to his many political enemies would be disarmed while the rest were left undisturbed.[40] His son and successor, James II, continued his autocratic policies and methods of suppressing dissent by disarming anyone he pleased.[41] St. George Tucker—who fought in the American Revolution and became one of the most prominent legal professors, scholars, and federal judges—well-expressed that “in England, the people have been disarmed,” and in such case, “liberty, if not already annihilated, is on the brink of destruction.”[42] Liberty cannot survive with a disarmed populace because the Natural right to keep and bear arms is “the true palladium of liberty.”[43]

The English believed that the Natural right to self-preservation was given by God, and had beheaded James II’s grandfather (Charles I) for violating their rights.[44] Against the oppression of James II, the English revolted again, deposing him at the first opportunity.[45] This was called the Glorious Revolution because it resulted in less bloodshed than most rebellions and restored their rights.[46] It was carried out in 1689 after an intense debate in Parliament, in which the people decided to invite the Dutch Prince William III of Orange to come to England, overthrow James II, and assume the throne.[47]

Before William and Mary could assume the English throne, however, the people of England required that they sign a Declaration of Rights, protecting certain prerogatives of the people that they would not allow the monarchy to repeal.[48] They agreed, it was signed, and those “true, ancient, and indubitable rights”—including the right of the people “to have arms for their defence”—were recognized by the government.[49]

In the near century that followed (before American independence), English courts affirmatively interpreted and applied their Bill of Rights to protect the right of Englishmen to their arms: in 1739, the King’s Bench agreed with a defendant who argued that he could not be convicted for owning a gun, because a gun is “necessary for defence of a house, or for a farmer to shoot crows.”[50] Five years later the Court of Common Pleas held that it was, by then, well “settled and determined” that “a man may keep a gun for the defence of his house and family.”[51] And in 1752, the King’s Bench again explained, “[A] gun may be kept for the defence of a man’s house, and for divers other lawful purposes.”[52] The private right to arms was protected from the English turmoil through the American Founding. Nearly one hundred years after the Glorious Revolution, the most preeminent English jurist was still able to hold that Englishmen were born with the right of having and using arms for their self-preservation and defense.[53] Those on the western side of the Atlantic did not forget this victory either.[54]

  1. The Right’s Significance to the Founding Generation

Global History of Tyrannical Disarmament

While this paper is not intended as a lesson in the fascinating foundations of American political theory or English history described above, a brief overview of these is necessary because they were the cornerstone of the founding generation’s mindset. To them, the Glorious Revolution was recent. They likely knew people—even grandparents—who were disarmed at the hand of the throne during that timeframe. That life experience, coupled with their breadth of education in philosophy, history, and religion, was their frame of reference as they lived under the “long train of abuses” of King George III.[55] Unlike Americans today, they knew what monarchical oppression and deprivation of rights looked like. They had lived it.

Not only had they lived it, but they were aware of the same pattern in other countries throughout history.[56] They knew the history of the ancient Carthaginians, who consented to “deliver up all their Arms to the Romans,” and were decimated by the Romans soon after.[57]

Japan also had long history of conducting forcible seizures of weapons, which they called taiko no katana-gari, or sword hunts.[58] Firearms had been introduced in Japan in the mid-sixteenth century, and were being used effectively there in large-scale battles by 1560. At that time, as the central government gained strength, it announced history’s most notable sword hunt in 1588. Despite its name, this time the decree targeted all weapons—explicitly including firearms—and banned possession of any swords or firearms by the non-noble classes. During a sword hunt, armies would sweep the country and confiscate any weapons from enemies of the new regime. What followed the civilian disarmament was on-the-spot execution by samurai of any inferior peasant or disrespectful member of a lower class.[59] Western missionaries reported these atrocities to their home countries.[60]

Islamic-controlled areas implemented Shari’a law, under which all non-Muslims were disarmed as inferior citizens.[61] This pattern also occurred in Turkey (the Islamic realm then known as the Ottoman Empire), except that there, Muslims too were disarmed if they were deemed to be political enemies of the regime. [62] The Boston Gazette reported the Turkish arms seizure right in the midst of the Revolutionary War; referring to Sultan Mustafa III, the article announced, “Some time ago the Grand Signior ordered all his subjects to give up the arms they were possessed of.” Those who “refuse to comply with this order [allege] that they want their arms for their own defense.”[63]

American colonists perceived these practices as violations of justice and the Natural right to armed defense, laying the groundwork for their perception and reaction once the same injustice was attempted against them. Being aware of the mode of tyrants to disarm their political opponents or even their subjects, and of the terror and government oppression that inevitably followed, the Founders were loath to permit themselves to be disarmed by anyone.

What Disarmament Represented to the Founders

Indeed, it seems that the pattern of disarmament preceding tyranny and oppression was common knowledge in the late eighteenth century. Justice Joseph Story, arguably the foremost Constitutional scholar of the age,[64] wrote, “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms.”[65] St. George Tucker agreed, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.”[66] But that knowledge was not limited to the ivory tower of legal academia; it was printed and reprinted in newspapers across the colonies: a letter to the editor of the Boston American Herald, reprinted in Philadelphia, observed that oppressors “well know the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the seat of a government, upon whom they mean to exercise the powers granted in that government.”[67] Perhaps the Father of the Constitution said it most wisely when he said succinctly that an oppressive government can survive only with “a standing army, an enslaved press, and a disarmed populace.”[68]

The right to bear arms was the exercise of their God-given, Natural right to defense and self-preservation. To the founding generation, disarmament meant that further oppression was on the horizon. They saw the pattern in governments around the world, and had experienced it in the mother country. They knew that once a government attempts to expropriate citizens’ arms, the deprivation of rights has begun, and tyranny is certain to follow.

Attempts at Political Solutions with Great Britain

By the late eighteenth century, the right of private ownership of arms had become “fundamental” to the colonists.[69] A prominent figure of the time declared that, in America, “every inhabitant has in his house (as a part of his furniture) a book on law and government, to enable him to understand his civil rights; a musket to enable him to defend these rights; and a Bible to enable him to understand and practice his religion.”[70] They knew their rights, and although they understood the importance of putting up with “repeated injuries and usurpations” of their rights, and although they would rather “suffer” than rise to armed rebellion over “light and transient causes,” the point came where they had to resort to just that.[71]

However, it was indeed their last resort.[72] They tried town meetings and planning sessions in response to the Quartering Act of 1765.[73] They tried direct communication with the tax collectors and Stamp Act agents themselves.[74] They wrote to their royal governors.[75] That same year, the Massachusetts Assembly called a meeting of all the colonies to work towards cooperative political solutions.[76] Although the royal governor told them it was illegal, ordered them to disperse, and refused to accept their letter justifying the meeting, this “Stamp Act Congress” remained in assembly and passed “A Declaration of Rights and Grievances,” expressing their primary concerns of rights, representation, and citizenship.[77] While this achieved the repeal of the Stamp Act, the oppression continued with the Declaratory Act of 1766, which asserted Parliament’s authority to bind the American colonies “in all cases whatsoever.”[78] Parliament suspended the New York Assembly, and the colonists decided to peacefully boycott the purchase of British imports (for a second time) as well as write letters to Parliament and circulate letters among the colonies, restating the grievances against Parliament’s taxation without representation and the “enforcing by military power the execution of acts of parliament.”[79] Colonies issued official statements and passed resolutions condemning Britain’s actions.[80] The colonists, with “patient sufferance,”[81] initially sought peaceful and political resolution of their frustrations, but with each attempt, Britain escalated its show of both political power and military might.[82]

Incipient violence did emerge on a number of occasions, foreshadowing the Revolution to come. As early as 1766, one colonist was wounded in a skirmish after the New York Assembly refused to assist in quartering British troops.[83] As those occupation troops were preparing to land in Boston, intelligence was leaked about certain commands of the Ministry to the Governor. These three orders were published anonymously, first in the Boston Gazette (the most influential patriotic newspaper in the colonies)[84] on September 26, 1768, and then throughout the colonies. The patriots anticipated these orders to be

More grievous to the People, than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this Province are to be disarmed. 2d. The Province to be governed by Martial Law. And 3d, that a Number of Gentlemen who have exerted themselves in the Cause of their Country, are to be seized and sent to Great-Britain.

Unhappy America! When thy Enemies are rewarded with Honours and Riches; but thy Friends punished and ruined only for asserting thy Rights, and pleading for thy Freedom.[85]

 

While the political discontent was clear, this was the first recorded instance where the Americans publicly stated their fear of the Crown’s attempts at disarmament. And it was but a few years before the specter of those predictions—arms seizures, martial law, and “traitors” apprehended and shipped to England—did come to pass,[86] and transform “a situation of rising political tension into a shooting war.”[87]

Escalation of Tension and Violence

Whether the September 1768 intelligence regarding the Governor’s orders was good or not, the fear itself was indeed well-founded.[88] While the colonists’ underlying basis of contention was taxation,[89] they had hitherto, as a whole, resorted to primarily peaceful and political means, and never yet attempted to organize any armed resistance.[90] This would rapidly change as the conflict developed over the subsequent years.

The “common thread” running through the political discourse, newspaper articles, and discussion of the time was that a citizen has the right to take up arms in defense of both himself and the Commonwealth.[91] It is no wonder that attempts to take away what they viewed as a Natural law, and as their bulwark against despotism, first caused alarm and ultimately led them to righteously exercise that fundamental right. The colonists were concerned about the escalating policies from across the Atlantic, and though most Americans were already armed, some places took further steps to specifically ensure that every man had access to his own firearm.[92] England’s response—and the first step towards violence—was the military enforcement of the Crown’s decrees, made possible by quartering of troops in citizens’ homes.[93] By late 1768, they made a significant presence, amounting in Boston to nearly one soldier in every fourth home.[94]

As the escalation continued, Britain feared withdrawing any troops, knowing that superior force was the only way to quell the stirring unrest.[95] They saw the colonies as being in “a state of disobedience,” and knew no other way to foist continued dependence on the Crown.[96] Tensions mounted, and violent clashes between colonists and Redcoats inexorably followed, sometimes ending in death.[97] The climax of the violence (up to that point) was reached on March 5, 1770, in the Boston Massacre. It might not have occurred absent the strained relations between troops quartered in Boston and the city’s inhabitants. But the strain existed, and was nearly palpable. The havoc began when a sentry outside the Customs House struck an unruly boy with his gun.[98] An unmanageable crowd immediately gathered, calling for the soldier’s death and throwing snowballs and whatever else they could find.[99] The Main Guard station was nearby, and a band of seven Redcoats, overhearing the commotion, entered the melee.[100] They fired, killing five and wounding six more.[101] Even still, the body of citizens responded civilly: the next day, they appointed a committee to demand that the governor, Thomas Hutchinson, remove the occupying British troops.[102]

Disarmament Ignited the Revolution

Inevitably, the principal acts of violence involving guns had begun.[103] Equally inevitable were the ensuing orders of disarmament. After the previous year’s rumors that disarmament was imminent, the rumors in 1769 alleged that it had already commenced.[104] The initial shock of military invasion was followed by a period of “false respite.”[105] While few events of great historical significance took place during the following years, the colonists did not sit idly by; they continued to talk, to publish, and to buy up arms for their defense.[106] One Boston merchant wrote, “’Twould puzzle any person to purchase a pair of [pistols] in town, as they are all bought up, with a full determination to repell force by force.”[107]

That false respite ended with the Boston Tea Party: in response to yet another unjust tax, on December 16, 1773, a band of patriots disguised as Mohawk Indians gathered at the Boston harbor, boarded three British trading vessels, broke open 342 chests and dumped the contents (forty-five tons of tea) into the ocean.[108] Parliament immediately retaliated by passing what the colonists termed the “Intolerable Acts,” a punitive series of enactments that closed the Port of Boston, returned the Redcoats to the city,[109] gave the governor unprecedented power and essentially stripped the colonists of self-government and many rights.[110] Furthermore, in a not-so-subtle tip of the royal hand, the civilian governor Hutchinson resigned, and the commander-in-chief of the entire British army in North America, General Thomas Gage, assumed the position.[111] The colonists called these the Intolerable Acts because they saw them as such, but it was the possibility that the British might use its army to enforce them that primed many colonists for armed resistance.[112] The general sentiment was determinedly articulated by one body of Patriots who resolved, “[t]hat in the event of Great Britain attempting to force unjust laws upon us by the strength of arms, our cause we leave to heaven and our rifles.”[113] That was the key difference: they had put up with abuses and intolerable policies before, and responded proportionately.[114] But enforcing injustice by the sword would also receive proportionate response.

It was no secret that the colonists were arming themselves, training as militia, and preparing to defend their liberty.[115] This was now being openly declared, in print and in public speech.[116] They were stockpiling powder, ammunition, and firearms,[117] and General (now Governor) Gage well knew it.[118] Consequently, Gage—who governed “rather in the line of a General than that of a Governor”[119]—strategized that the best way to win the battle was to end it before it was fought; among the other “intolerable” measures, he set out to disarm the populace.[120]

As a military strategist, leaving enormous supplies of gunpowder to the opposition—when he had the means to eliminate it—was preposterous. Gage began by cutting off supplies, limiting distribution of powder from public storage facilities, and having his soldiers confiscate private citizens’ firearms.[121] His plan was to carry these measures out completely, and the first major step in executing his strategy resulted in the “Powder Alarm.”[122] In the first of many planned sorties of the kind, before daybreak on September 1, 1774, some 260 Redcoats marched to the powder house on Quarry Hill near Boston and purloined several hundred barrels of gunpowder, effectively reducing the ammunition available to the Americans. [123] Throughout that day, General/Governor Gage forcibly expropriated arms and ammunitions held by merchants, and also sent out the order that the inhabitants must turn in their arms.[124]

They would not.[125] It turned out that, of all the oppressive royal measures against them, “what most irritated the People” was “seizing their arms and ammunition.”[126] As word spread that the “same game had been play’d [in various locations], and ye. inhabitants disarmed, [this] raised such a spirit” of indignant defiance that was not to be extinguished.[127] Legions of armed citizens swarmed together “in large bodies, with their arms, provisions, and ammunition, determining by some means to give a check to the power which so openly threatened their destruction, and in such a clandestine manner rob them of the means of their defence.”[128] Gathered by the thousands, the citizens armed themselves while their women and children made bullets and preparations for war, “crying and bemoaning and at the same time animating their husbands and sons to fight for their liberties, though not knowing whether they should ever see them again.”[129]

By the end of the day, 20,000 militiamen had mobilized and started marching towards Boston.[130] The word spread like wildfire, generating rumors along the way, including that the war had already begun in the streets of Boston.[131] The bad intelligence was sorted out before those armed citizens reached Boston, so the full war did not begin yet,[132] but both sides continued to react in escalation to the actions of the other.[133]

The tension had been building for many years, but it was the very act of disarmament that ignited the Revolution, impelling the Americans to shift from peaceful and political means of requesting redress of their grievances, to the “amazing number and fury of [the] People, who are all provided with Arms and Ammunition, &c.”[134] The message sent by that spontaneous rally of armed citizens was clear: the Americans viewed disarmament as an act of war, and they would react accordingly.[135]

And yet, the war did not begin there. The following month, in the beginning of political break from the Crown and establishment of a sovereign government of Massachusetts, the Provincial Congress[136] convened.[137] Anticipating armed conflict, they appointed a Committee of Safety, vested it with power to call forth the militia, organized election of militia officers, appointed Minutemen,[138] and decreed that everyone who did not already have a gun should get one and begin training with it immediately.[139] Given the political climate, very few had to be told to do so at that point; “one of the anxieties of every citizen was to get a good gun and keep it in repair.”[140]

As the reactive escalation of both sides continued, the Redcoats had developed the recurrent, obnoxious practice of unlawful searches for and seizures of firearms,[141] which only caused the people to make greater efforts to stockpile arms, ammunition, and supplies.[142] In the next move of escalation, Britain issued an arms embargo,[143] attempting to cut off the source of colonists’ firearms and ammunition.[144] The Americans viewed this as a violation of their right to keep and bear arms; one colonial government asserted, “[I]t too clearly appears a design of disarming the people of America, in order to more speedily dragoon and enslave them; it was therefore recommended, to all persons, to provide themselves immediately” with a stockpile of arms and ammunition sufficient to fight the oppression.[145] On March 23, 1775, the Convention of Delegates of Virginia beheld Patrick Henry’s rousing performance,[146] which concluded:

Gentlemen may cry, Peace, Peace—but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death![147]

 

Regardless of whether Henry was seen as dramatic, his proposals included language similar to what became the Second Amendment, and were adopted by that committee.[148] Delegates in attendance—including Patrick Henry, Richard Henry Lee, George Washington, and Thomas Jefferson—formed “a committee to prepare a plan for the embodying, arming, and disciplining such a number of men as may be sufficient” to defend the colony, and recommended “that every Man be provided with a good rifle.”[149]

Henry stated the view that the war had already begun. As the parrying contest between Britain and the colonies continued, any number of singular incidents could have initiated the actual combat that became the American Revolution; indeed, many occasions nearly did.[150] Ultimately, it was one incident in April 1775—remarkably similar to dozens preceding it although surprisingly less severe—that finally started the war.[151]

Through Tory informants and soldiers disguised as farmers, General Gage received intelligence of munitions stockpiled and secretly stored in a few dozen homes throughout Concord, Massachusetts.[152] In line with his previous missions, seizing or destroying them would have been a major victory for him; however, espionage on his side leaked information about the depredation he planned.[153] Paul Revere gave the signal in the old North Church and then, with a few others, mounted up to spread the alarm throughout the countryside.[154] The patriots (including their women and children) worked feverishly throughout the night, and assembled as an armed body by the early morning hours.[155] In the morning, the militiamen and the Redcoats came face to face on the Lexington green.[156] Someone fired, and the ensuing battle sparked a war that would last for eight years.[157]

The important thing to note about the pattern over the eight months preceding the start of the Revolution was that Britain feared losing its supreme authority, and sought to insure it by disarming the people and to enforce it militarily; the Americans reacted to this by stockpiling arms and ammunition, knowing that an armed populace was the best defense against governmental oppression. Any royal expropriation of their personal property—usually, and especially, munitions—the people saw as both illegal and a violation of their Natural rights of freedom and self-preservation. They responded accordingly, and in a way that they saw as justified by both civil and Natural law. But both of these things—small skirmishes of violence, as well as confiscation of firearms—had already occurred many times over. Only when the Crown attempted total disarmament, and when shots were fired in the process, did the Americans—finally and in concert—revolt.[158]

III. The Text of the Second Amendment[159]

An armed populace had become “an inherent part of American life which had made not only the American Revolution possible, but also the preservation of liberty, and the ability of the people to be in the position to establish and limit governments rather than have governments imposed upon them.”[160] With liberty preserved, and with the prospect of forming a new government, the Founders wanted to get it right. Even they had their doubts about its success, as they had seen all governments eventually fall.[161] But they aimed for the new Constitution to succeed for as long as possible, which entailed preserving that “inherent part of American life” that was the Natural right to arms.

To understand the demands for protecting the right to bear arms, and the process of drafting the text to what became the Second Amendment, it is imperative first to further elucidate two additional elements of the Founders’ frame of mind: their antipathy to standing armies, and the concomitant importance of the militia.

Fear of Standing Armies

The Americans had learned from both study and experience that in a free state, the government acts in accordance with the desires of the people, because its power derives from them.[162] In contrast, the government of an oppressive state acts of its own accord and forces compliance through despotism, usually enforcing its will via a standing armed force. This is why the Founders viewed standing armies as a danger to liberty; they are its antithesis. The militia is a safe defense for the people and their control of government, as a check against the unjust exercise of governmental power; conversely, a standing army is only a safe defense for the despot, as it counteracts the liberty of the people.[163]

In addition to their study of despotic governments, the Founders’ aversion to standing armies was rooted in their own experience (and that of their recent forebears), stemming at least from England’s Declaration of Rights of 1689.[164] In that document, they accused James II of subverting the Natural rights and liberty of the people, in part by keeping a standing army and quartering soldiers contrary to law.[165] Accordingly, they decreed “That the raising or keeping a standing Army within the Kingdom in Time of Peace, unless it be with the Consent of Parliament, is against Law.”[166] Remembering these times, Luther Martin, a delegate to the Constitutional Convention, generally characterized standing armies as the “engine of arbitrary power.”[167]

This sentiment was further instilled during the period of British occupation in the colonies, leading up to the American Revolution. Foreshadowing the disarmament and other unjust strategies that would be implemented over the next several years, one newspaper sagely predicted, “When an armed Force is bro’t in upon a peaceable Country against their Consent, and in Violation of their Rights as Men and British subjects, we have reason to believe that soon, unheard of Oppressions are coming upon us.”[168] This would indeed prove to be the case. As the British escalated their oppression of the colonists, the general feeling was perhaps most aptly articulated by an unnamed “Carolinian,” who penned, only months before the Revolution began,

With all the plausible Pretences to Protection and Defence, a standing Army is the most dangerous Enemy to the Liberties of a Nation that can be thought of. . . . It is much better, with a well regulated Militia, to run the Risk of a foreign Invasion, than, with a Standing Army, to run the Risk of Slavery. . . . When an Army is sent to enforce Laws, it is always an Evidence that either the Law makers are conscious that they had no clear and indisputable Right to make those Laws, or that they are bad and oppressive.[169]

 

This violation of the people’s freedom ingrained a fear of standing armies into them.

That fear still remained after the Revolution ended, as they prepared to institute a new central government and cautiously grant it powers. The Anti-Federalists, who opposed a strong central government as a result of the abuses they had endured, argued vehemently against any standing army in the new Republic. They asserted that a standing army (or even governmental control of a “select militia,” which they saw as tantamount to the same thing,) could only be used “for the purpose of consolidating and finally destroying [the people’s] strength,” and that a government would not dare to do so “unless they have a standing army to back and compel the execution of their orders.”[170]

All these sentiments allude to that check, initially mentioned, of the power of the people against the government. They knew that justice and Nature indicated that the ultimate power should rest with the people, but that in reality, a people could only check an armed government as an armed populace.

The Importance of the Militia

The fear (and practice) of standing armies to infringe on the people’s rights propelled them to rise up as a militia in defense of freedom. The concepts of armed bodies defending power—the militia on one hand, defending the power retained by the people, and on the other, the standing army defending the power appropriated by the oppressive government—are inextricably linked, and the Founders understood that they must be balanced. How that balance was to be best struck was a point of great disagreement.[171] What was not a point of any disagreement was the importance of an armed populace, to include a well-regulated militia, in defense of the natural freedoms of the people.

Early on, patriots engaged in debates about how this balance should be struck. In 1776, Pennsylvanians settled on their solution:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.[172]

 

They all agreed that the militia was critical as “the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers,”[173] but that did not end the debate. While they consistently defined the “militia” simply as the people (usually able-bodied men able to use a firearm),[174] the arguments typically revolved around how large of a role any army would play in meeting the needs of the country as a whole, without endangering the citizens’ liberty.[175]

The Federalists, urging ratification of the Constitution, attempted to assuage the fears of standing army and recent oppressions. First, they pointed out the common ground between both sides that the people would be armed. Noah Webster assured them, “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed . . .”[176] James Madison, in his Federalist Papers, agreed: “[B]esides the advantage of being armed, which the Americans possess over the people of almost every other nation,” he explained that America was further different because they had local governments and local militias.[177] He criticized European kingdoms and governments for being “afraid to trust the people with arms,” and declared that if Europeans had firearms, as well as local governments and local militias, “it may be affirmed with the greatest assurance that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”[178] The people were the best protectors of their own freedoms. At the Massachusetts ratifying convention, one delegate made this point by asking rhetorically how a standing army “could subdue a nation of freemen, who know how to prize liberty, and have arms in their hands?”[179]

The Anti-Federalists were not so easily convinced; their fear of standing armies seemed to outweigh the possibility of armed Americans being capable of defeating such a body again. Their simple reply was that nothing in the Constitution prevented the new government from legally disarming the people. Patrick Henry bellowed at the Virginia ratifying convention about a future in which “your arms, wherewith you could defend yourselves, are gone.”[180] If the people were disarmed, Henry and his allies argued, then a standing army could be used to oppress them. Mason reminded the same delegates that King George III had attempted “to disarm the people” because it “was the most effectual way to enslave them.”[181] Yet the Federalists urged that Congress did not have the power to disarm, because the powers of the sword were with the people, who were “entitled and accustomed their arms,” and would be “tremendous and irresistible” to any army.[182]

Both sides made compelling points,[183] but key to this discussion is the consistent thread woven throughout the arguments of both sides: that the people must be armed and retained the right to be so, and that the militia—or in other words, the regular citizens who privately arm themselves—is the best check against governmental abuse of power.[184]

Calls for the Right of the People to Keep and Bear Arms

The expression of Natural rights in legislation or constitutions does not create or establish rights that already exist, or principles “which God and nature have established” in Natural Law.[185] But this expression was common, simply to reserve those rights unto themselves.[186] Perhaps this was because their governments had attempted to contravene those rights many times over the preceding century, or because inscribing those rights served as a reminder to the government of what the people held to be important.[187] Either way, prior to ratification of the Constitution, every State either had a bill of rights, or the text of its Constitution protected at least some individual rights.[188]

Because they were accustomed to this protection at the state level, many Americans joined the call for a Bill of Rights to be added to the new Constitution, beginning during the Constitutional Convention itself.[189] In the final days of the months-long Convention, several delegates expressed their regret that they could not bring themselves to sign the new proposal unless the Convention agreed to include an explicit bill of rights;[190] the lack of one became the major single argument against ratification.[191] This argument, however, was not one over the importance, necessity, or existence of the rights involved; both sides agreed on all these.[192] The real disagreement was simply whether it was necessary to list them.[193]

The Anti-Federalists felt that rights ought to be enumerated, as they were in the State constitutions. They did not intend to enumerate every right, but only those essential and unalienable rights, which governments had often tended to invade, and over which no just government should have control.[194]

The Federalists feared that a list enumerating any rights at the Federal level could be interpreted as all-inclusive, which it certainly was not.[195] They saw no need to list obvious, inherent rights, which everyone held and with which they never parted.[196] The venerable Federalist Noah Webster mockingly proposed that they supplement the proposed bill of rights with additional rights that should have been obvious without enumeration, for example, “That Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent lying on his left side, on a long winter’s night . . .”[197] Ultimately, a large part of the population opposed to ratification proved to be so only because of the lack of an express bill of rights.[198] Many of the States demanded amendments, and North Carolina refused to ratify unless Congress approved a bill of rights, including the right of the people to bear arms.[199]

The contemporary sentiment regarding the specific individual right to arms was strong and universal.[200] Among the specific calls for amendments, none received more attention than the right to bear arms. By comparison, four states proposed that the rights to assemble, to due process, and against cruel and unusual punishment be guaranteed; only three states called for protection of freedom of speech, or that the accused be entitled to know the crime with which he is charged, and to not be forced to incriminate himself; only two states proposed that double jeopardy be barred.[201] But five separate State conventions made calls for what would become the Second Amendment to the Bill of Rights.[202]

Understanding a little about the debates over ratification is helpful because it illustrates how inherent, intrinsic, and innate the Americans understood these rights—including and especially that of possessing and carrying firearms—to be. “In other words, not only does the Constitution protect Americans’ right to own guns; there wouldn’t be a Constitution if that right had not been protected in the Second Amendment.”[203]

Drafting and Sources

Of the State constitutions drafted near the time of the Declaration of Independence, all mention the militia and half specifically provide for the right of the people to bear arms.[204] It is logical that the Founding generation’s State constitutions were drafted based on their conceptions of the right to arms, and that, when drafting the Bill of Rights for the new Constitution, they looked to the versions they already had.

Thomas Jefferson himself drafted Virginia’s constitution, and he inserted the right to keep and bear arms in three separate drafts.[205] His first articulation unequivocally declared, “No freeman shall ever be debarred the use of arms.”[206] Virginia’s proposal for the Federal Constitutional amendment was much more broadly inclusive: “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; that standing armies, in time of peace, are dangerous to liberty.”[207] New York’s proposal was nearly identical to Virginia’s.[208] Samuel Adams, on behalf of Massachusetts, originally advanced that the Constitution should not be construed as authorizing Congress to “prevent the people of the United States, who are peaceable citizens, from keeping their own arms;”[209] this and other submissions were only withdrawn because Adams was a faithful representative who was under instructions from his constituents to ratify without delay.[210] New Hampshire, Rhode Island, and Pennsylvania also recommended constitutionalizing the right to arms, and the latter (whose proposal actually spurred similar recommendations by the States whose ratification was to follow) was unmistakable in its proposal for the individual right:

[T]hat the people have a right to bear arms for the defense of themselves and their own State, or of 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.[211]
This provision in all of the States’ declarations of rights—and their amendatory proposals for the new American Constitution—should be considered within the context of the era during which they were formed, where the general state of mind of the people held that private citizens needed firearms in order to defend their rights, liberty, and freedoms against any attempts by the government to usurp these, or to establish tyrannical control over them. James Madison’s original proposal to Congress embodied both the individual right, in addition to the militia’s role as “the best security for a free country.”[212] Although specific wordings vary, these basic individual rights are exactly the same ones as those protected in the individual State constitutions, in their proposals to Congress, and in what was ultimately adopted as the Second Amendment to the Constitution of the United States.

Final Text

That final adoption 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.”[213] As we move ahead to the exercise of the right, it is helpful to focus on the final clause; while many States’ proposals simply stated “that the people have a right to keep and bear arms,” Madison’s version, adopted by the people, more strongly guarded the right by declaring that it “shall not be infringed.”[214]

  1. The Founders’ Understanding of the Right to Keep and Bear Arms

Once the Framers had secured the right to keep and bear arms in the Second Amendment, what did they intend? What did they believe they had enacted? How did they mean for this right to be exercised? These questions may seem superfluous at this point, given the frame of mind resulting from the rocky road leading from colonial disarmament to Revolution to adoption of the new government, in which the ultimate power was “originally vested in, and consequently derived from, the people.”[215] Yet the aforementioned “explosion of scholarship,”[216] and many of today’s clear infringements of the right,[217] unfortunately leave only two options: either the Second Amendment does not mean what it says, or those now in power indeed wish to infringe upon it—and the Founders’ clear intentions for it.[218]

Many of them stated this intention clearly: The right to keep and bear arms

is intended to secure the people against the mal-administration of the government. . . . Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia . . . . This was actually done by Great Britain at the commencement of the late revolution.[219]
The history of the right to bear arms—and attempts and disarmament—with which they were intimately familiar shaped their intent for the right they intended to secure to themselves and their posterity.[220]

Rights vs. Powers

Critical to this framework of eighteenth-century understanding is the difference between rights and powers. The Constitution reserves all “rights” to the people; in the Federal Constitution, only individuals have rights.[221] In contrast, the United States (and the State governments) are granted certain “powers” by the people, who retain the ultimate sovereign power.[222]

The Bill of Rights was debated, proposed, and adopted for the purpose of protecting rights retained by the people.[223] Although the term “States’ rights” later came into use, the original Constitutional text eschews this usage.[224] “The people” means individuals, and only individuals have rights.[225]

Individual Right of Private Ownership

The right to keep and bear arms that the Founders protected was clearly an individual right of private ownership. No other interpretation of the language makes sense, if faithful credence is given to the Founders’ understanding and the specific language itself, as well as its placement within the Constitution.

On numerous occasions, the Supreme Court of the United States has specifically ruled that when the Constitution says “the People,” it means individuals.[226] This is consistent with the most straightforward, plain meaning of its various elements.[227] Just as important as “the people” is the concept of the “rights” belonging to them. They were not collective, but belonged to each citizen of the new nation.[228] Indeed, in the Bill of Rights, the first nine Amendments are all about private rights belonging to individuals, often using the same language as in the Second Amendment to refer to these as “the right[s] of the people.”[229]

The First Amendment guarantees “the right of the people peaceably to assemble,” and personal freedoms of speech and religion.[230] The Third protects the people’s right, in their individual homes, to decline to quarter any soldier.[231] Reiterating the same language, number Four declares that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”[232] Amendments Five and Six guard individual rights in criminal matters, while the Seventh secures the individual right to trial by jury.[233] The Eighth Amendment protects the right of a person to not be subjected individually to cruel and unusual punishments, followed by a declaration in Nine that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[234] In every instance it is used, the term “right” is a guarantee to individuals against government action. The Father of the Constitution himself, in proposing the Amendments, conveyed unambiguously: “Read the Amendments—they relate first to private rights.”[235] While James Madison did not believe that enumerating them was necessary because they were self-evident, he agreed to propose the Amendments on behalf of the people who were clamoring for their security in a bill of rights.[236] Once introduced in Congress, Federalist colleague and old patriot Tench Coxe explained that under (what became) the Second Amendment, “the people are confirmed . . . in their right to keep and bear their private arms.”[237]

Further evidence of their intentions regarding the right comes with the proposed placement of the right in the document; rather than as an addendum, Madison proposed that the right to keep and bear arms be placed within the body of the Constitution itself, according to the section to which they related. He planned on inserting personal rights—including those of speech, press, and the right to arms—in Article I, Section 9. This placement accords with the other personal rights guaranteed by the Constitution—securing the right of habeus corpus and prohibiting bills of attainder and ex post facto laws.[238]

Had Madison meant for the right to keep and bear arms to belong exclusively to members of the State militia, he likely would have included it following Article 1, Section 8, clauses 15 and 16, which address congressional control over the militia. Alternatively, had he believed it to be a right belonging to the people collectively, and not individually, the best arrangement for it would be after clause 3 of Article 1, Section 10 in the Constitution. Section 10 is composed entirely of State rights and prohibitions; clause 3 deals with States’ rights concerning war powers. If the right to arms belonged only to the citizens of a State collectively, Madison would have placed it immediately succeeding the clause allowing a State to engage in war when actually invaded or in imminent danger.[239]

But he did not. And this interpretation was held then, and for the most part, throughout the Nation’s history. The year after adoption, Congress demonstrated the importance that generation placed on gun ownership when they passed a law requiring private ownership of arms.[240] In the span of judicial interpretation since then, the Supreme Court has consistently and repeatedly held at least that the Second Amendment protects an individual right; it has never accepted a different view.[241] To the Founding generation, the Second Amendment absolutely expressed what they deemed their individual right to private firearm ownership.

Legitimate Purposes of the Right to Keep and Bear Arms

The declared “right of the people” is open-ended and would include all legitimate purposes, from defense of life to lawful hunting.[242] These should not be construed to limit the right, just as the enumeration of rights in the Bill of Rights is not limited to those named.[243] Although not all the legitimate purposes of the individual rights are overtly stated, one crucial purpose that the Framers had in mind for the Second Amendment when they adopted it was to ensure an armed citizenry that could resist tyranny.

Thomas Jefferson wrote, “What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.”[244] This view was understandable given their recent war. As a result of it, they created a system of checks and balances in the government, to ensure that no branch could overpower any other. And through the affirmation of the people’s right to keep and bear arms, they established themselves as the ultimate check on their new government.[245]

In the arguments for the new Constitution, Alexander Hamilton wrote of how this had—and in the future would have—to take place:

If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.[246]

 

When governments betray the people by violating their rights, the people’s final recourse is to exercise the Natural right of armed defense “paramount” to government.

Part of this implementation in the new Constitution was modeled after what they had implemented for the same reasons at the State level: every one of the State bills of rights protected the concept of an armed populace, either by asserting that a militia is the proper defense of a free state, or by simply preserving citizens’ right to keep and bear arms.[247] In effect, both expressions are equivalent, as they accomplish the same end: they both protect the concept of an armed populace, which they were. They laid down fundamental laws establishing both government and the security that they would remain an armed populace. A century later, Justice Story echoed Hamilton’s explanation of how the right was intended to function:

The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.[248]
Even if violations of rights begin to take place, their roots will never take hold if the people are armed with the palladium of liberty, and thus able to eradicate them.

The Founders had other lawful purposes in mind, too. For example, even if the Militia Act of 1792 hadn’t required private ownership, they all owned them anyway.[249] It was part of their culture.[250] In a Fifth Circuit opinion from 2001, the federal court explained:

[T]here are numerous instances of the phrase “bear arms” being used to describe a civilian’s carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the “people” [or “citizen” or “citizens”] “to bear arms in defense of themselves [or ‘himself’] and the state,” or equivalent words, thus indisputably reflecting that under common usage “bear arms” was in no sense restricted to bearing arms in military service.[251]
Not only was it not limited to connection with military service, but bearing arms was common for civilians to do – even concealed. Two prominent dictionaries of the era described the practice of bearing arms “in a coat” as an example under the definition for the word “bear” (not the phrase “bear arms;” just the verb “to bear” used this imagery).[252] Under his dictionary entry for “pistol,” Noah Webster explained, “Small pistols are carried in the pocket.”[253] An arms historian concurs, stating, “Among eighteenth-century civilians who traveled or lived in large cities, pistols were common weapons. Usually they were made to fit into pockets . . .”[254] A Boston merchant’s ad touted his “pocket pistols” for sale.[255] Dr. Joseph Warren, the patriot physician, carried pistols when making his rounds.[256] George Washington did the same for self-defense.[257] Concealed carry of firearms was practiced so commonly that it was in fact one of General Gage’s greatest fears regarding the citizens of Boston.[258] Thus, carrying firearms on one’s person—even inside a coat—could not have been a foreign concept or unacceptable practice.

Whether to hunt, or for personal defense, owning firearms was a given.[259] But with the Revolution—and everything that precipitated it—fresh in their minds, perhaps no purpose was as important as that of the ability to resist tyranny.[260]

Citizens Must be Trained at Arms

For the right to arms to serve its purpose of resistance to oppression, it is essential that citizens who possess the right learn the skill of exercising it. In his first annual address, President Washington asserted, “A free people ought not only to be armed, but disciplined . . .”[261] If not disciplined, they may not remain free, and even large bodies of people who outnumber those in power will not be able to resist.[262]

The patriots’ success in the Revolution was ascribed in part to their skill with their guns; Jefferson bragged to a European colleague that the difference between the colonists and the Redcoats was “our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy.”[263] In addition to the simple right to possess firearms, a familiarity with them was considered “essential” in order to preserve liberty.[264]

Costs and Benefits

Training with and ability to use firearms was extremely important, but was not factored into the debates surrounding adoption of the right to keep and bear arms at the Founding period. During that era, they too experienced tragedies and negligent discharges (including prior to the adoption of the Second Amendment), but they chose to maintain the right despite the costs.[265]

When the argument is made that the potential violence (accidental or intentional) that may result from an armed citizenry is too high a cost to society, the reply of one modern professor of Constitutional law is that he is “as sublimely indifferent to the question of whether the availability of guns leads to crime as to the question of whether pornography causes sexual offenses. In either case, the Constitution has spoken, and that is enough.”[266] By virtue of the language of the rights preserved, they ought to be clear. If the right is worth having, and taking seriously, it is worth upholding and honoring it, in spite of the risks or social costs.[267] Those who abuse any right may be punished for the laws broken (such as manslaughter or armed robbery), but should not be punished for the mere possession of tools of defense, or exercise of a good right. Describing the social utility argument against firearms, one European criminologist of the era averred, “False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction.”[268]

In proposing the Amendments, Madison noted several flaws in the version in the English Declaration of Rights: primarily, the “fallacy” that it was a mere legislative act that could be repealed by Parliament.[269] By contrast, the American version would be Constitutional in nature, and so not subject to repeal or alteration at the whim of Congress. This also made sense because, as far as the right was seen as a Natural one, it could not legitimately be established or removed by government anyway.

The Framers knew the potential lethality of firearms; indeed, they had just used them to win a war. They had also seen accidents.[270] But they understood the importance of the right they were securing by adopting the Second Amendment, and chose to do so with forceful language, including that it “shall not be infringed.”[271]

The Right Shall Not Be Infringed

By design, some Constitutional rights are imperatives, while others are more relative.[272] The language of the Second Amendment is among the sturdiest belonging to any of the rights secured.

The First Amendment specifies that “Congress shall make no law respecting” the rights it protects; by comparison, the Fourth proscribes only “unreasonable searches and seizures.”[273] The difference between these is substantial, so it is noteworthy that the Second Amendment proscribes any infringement.[274] The right to keep and bear arms is secured in very energetic language, and whatever restrains the full and complete exercise of it is forbidden by the Amendment’s explicit language. At the time of adoption, the right had no limits short of citizens’ moral power to exercise it.

It was not anachronistic for those leaders to have held that the right to armed defense was a Natural right, predating any government they had known. The right, as they understood it, was not a right to the technology of firelock muskets per se, but rather a Natural right to armed defense, and if it was to sufficiently serve its purpose, that right must be proportional. As Locke taught them,

[I]t being reasonable and just I should have a right to destroy that which threatens me with destruction; for by the fundamental law of Nature . . . he who makes an attempt [of force] . . . thereby puts himself into a state of war with me. . . . This makes it lawful . . . for me to . . . kill him if I can; for to that hazard does he justly expose himself . . . because the aggressor allows not time to appeal to our common Judge, nor the decision of the law.[275]

 

So for the Founders, it was not to say that they had a Natural, pre-governmental right to the possession of a technology that for much of human history did not exist. It was the right to address a lethal threat, which must incorporate the right to be armed with the best means available for that purpose. If such self-defense as Locke explains it is a Natural right, then “armed” self-defense existed when sticks and stones were the best weapons available, and progressed as bows and arrows, spears, and eventually firearms were developed. They saw themselves as carrying on the tradition of defense—both self-preservation, and defense of freedom—after the pattern of civilizations past.[276] That meant exercising their right without—or against—any infringement.

Technological Advancements and Military-grade weaponry

“Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment;”[277] or that it must have been understood to have had reasonable restrictions, and not have been expected to protect large-scale weaponry or advancements in technology. But the right, as adopted, does not permit citizens to have only single-shot pistols and muskets, and not cannons. It protects arms as a class.

In fact, exactly such weapons were privately and commonly owned in the eighteenth century. Full-scale naval warships—including cannon—were not only privately owned but officially recognized by the new American government.[278] The Constitution grants Congress the ability to grant letters of marque.[279] At the time, a privateer was a ship armed and outfitted at private expense for the purpose of preying on the enemy’s commerce to the profit of her owners, and bearing a commission, or letter of marque, from the government as permission to do so.[280] During the Revolution, Congress issued nearly 1,700 of these letters, with almost a thousand more issued by States and other authorities.[281]

One citizen who privately owned cannon was John Stark, a General of the New Hampshire regiments, who fought at Bunker Hill.[282] One of his cannons is still ceremoniously fired on occasion, and another is mounted at the top of the Bunker Hill Monument in Boston.[283] Regarding his private armaments, he was not unique.[284] In short, the right of the people to bear arms—including military arms—was “a fact” of life, and not a mere matter for “paper guarantees.”[285]

So the right could not have been intended to protect only muskets. It is certainly true that firearms technology has advanced since 1791—but not as much as some would like to think. Repeating, magazine-fed firearms date back to at least the 1600s, and concealable “pepperbox” handguns firing five to seven shots without reloading were in use by the end of the eighteenth century.[286] In application, any core right at issue is not undermined by the instruments used to exercise it; with respect to many Constitutional rights, technology may change but the rights remain.[287] To accuse the Founders—men possessing such obvious vision and intelligence—of having so limited foresight to believe that the advancement of technology would cease with their epoch is preposterous and insulting. Innovation is not dangerous; it is necessary, and they anticipated it.[288]

Conclusion

This exhaustive analysis of the Second Amendment would never have been necessary in the first nearly two centuries of the republic. Only in the last four score and handful of years ago did any different interpretation emerge. Even more recent to gain traction is the starkly Orwellian view that “the people” means states or conscripted militia, that “right” means governmental power, that “keep” does not mean possess, that “bear” does not mean carry, that “arms” do not include ordinary handguns and rifles, and that “shall not infringe” does not include a litany of prohibitions.[289]

The Founding generation saw the individual right to keep and bear arms as a bulwark to guarantee security and liberty, both personal and of the State.[290] The individual freedom to own and carry firearms is a natural and fundamental civil and Constitutional right, and “the birthright of an American.”[291] To the Framers, that freedom was subject neither to the democratic process (other than Constitutional amendment) nor to arguments grounded in social utility.

The right to keep and bear arms was critical to the origins of the Constitution because it was the threat of taking away this specific right that became a major impetus for the Revolution, and subsequently, the establishment of a new system of government. After all the other violations—to which the Colonists had responded mostly peacefully and politically—had the Crown not attempted to violate the sacrosanct right to bear arms, there may not have been a Revolution, or a Constitution.

[1] The Declaration of Independence para. 1-2 (U.S. 1776).

[2] Id.

[3] U.S. Const. amend. II.

[4] Glenn H. Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461 (1995); see also, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989).

[5] Levinson, supra note 4; for the aforementioned “explosion,” see, e.g., Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983); Symposium, The Second Amendment, 62 Tenn. L. Rev. 443 (1995); David B. Kopel, The Second Amendment in the Nineteenth Century, BYU L. Rev. 1359 (1998); Stephen P. Halbrook and David B. Kopel, Tench Coxe and the Right to Keep and Bear Arms, 1787-1823, 7 Wm. & Mary Bill Rts. J. 347 (1999); Symposium, The Second Amendment: Fresh Looks, 76 Chi.-Kent L. Rev. 3 (2000); George A. Moscary, Explaining Away the Obvious: The Infeasibility of Characterizing the Second Amendment as a Nonindividual Right, 76 Fordham L. Rev. 2113 (2008); Symposium, The Second Amendment, 81 Tenn. L. Rev. 407 (2014).

[6] See, e.g., Reynolds, supra note 4, at 461.

[7] Strauder v. West Virginia, 100 U.S. 303, 306 (1880). This quote (which appears in its entirety on the cover page to this paper) refers to the Civil War/Reconstruction Amendments, but the same principle holds true: a view of the original circumstances and understanding are critical to a faithful interpretation.

[8] The venerable Jefferson held the same view as the Supreme Court in its opinion in Strauder (see supra note 7); his full statement reads, “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” Letter from Thomas Jefferson to William Johnson (Jun. 12, 1823), in 9 Thomas Jefferson, The Writings of Thomas Jefferson 7:296 (H. A. Washington ed., Cambridge Univ. Press 2011) (1853-54).

[9] David B. Kopel, How the British Gun Control Program Precipitated the American Revolution, 6 Charleston L. Rev 283 (2012) [hereinafter Kopel, British Gun Control].

[10] Id. at 285.

[11] For example, the Supreme Court has examined the colonists’ history of rancor against taxation without representation, see Texas v. Johnson, 491 U.S. 397, 435 (1989) (Rehnquist, C.J., dissenting), as well as other manifestations of unrepresentative government, see Wesberry v. Sanders, 376 U.S. 1, 15 (1964), the British government’s violation of the right of confrontation, see Crawford v. Washington, 541 U.S. 36, 47 (2004) (“Controversial examination practices [had been] used in the Colonies.”), the use of general warrants, see Henry v. United States, 361 U.S. 98, 101 (1959), and the violation of the right to trial by jury, see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340-41 (1979) (Rehnquist, J., dissenting), denial of the right to petition, see, e.g., Richard D. Brown, Revolutionary Politics in Massachusetts: The Boston Committee of Correspondence and the Towns: 1772-1774, at 57 (1970), and examined all these instances of British action as foundational to the American state of mind at the time of the Founding, and consequently, as foundational to the formulation of the Founding documents (Kopel, British Gun Control, supra note 9, at 283-85).

[12] 2 Lynn D. Wardle, Readings on the Origins of the Constitution of the United States of America: Foundations of American Constitutional Law ch. 2, pp. 1-8 (4th ed. 2009).

[13] Id. at 1.

[14] Gordon S. Wood, The Creation of the American Republic 6-7 (1969).

[15] Id.

[16] See, generally, Wardle, supra note 12, especially at ch. 2.

[17] Andrew McLaughlin, The Foundations of American Constitutionalism 71 (1932).

[18] The Declaration of Independence para. 1 (U.S. 1776).

[19] Wardle, supra note 12, at ch. 2, pp. 3-4.

[20] Morton White, The Role of Philosophy in The Federalist, Philosophy, The Federalist and the Constitution 3 (Oxford University Press 1987).

[21] Bernard Bailyn, The Ideological Origins of the American Revolution 30 (1967).

[22] John Locke, Two Treatises of Government 289 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).

[23] Wardle, supra note 12, at ch. 11, p. 2.

[24] See, generally, id; Locke, supra note 22. The word “right” (and discussion of rights, when they exist, and how they apply) appears nearly two hundred times in Locke’s Second Treatise.

[25] The Declaration of Independence para. 2 (U.S. 1776).

[26] See Locke, supra note 22. Locke discusses “retribution” of whoever “transgress[es] the law of Nature,” and that “one man may lawfully do harm to another, which is that we call punishment. In transgressing the law of Nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men for their mutual security, and so he becomes dangerous to mankind; the tie which is to secure them from injury and violence being slighted and broken by him, which being a trespass against the whole species, and the peace and safety of it, provided for by the law of Nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may [do to] any one who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and, by his example, others from doing the like mischief. And in this case, and upon this ground, every man hath a right to punish the offender and be executioner of the law of nature.” Id. at 289-90.

By 1770, talked of armed resistance became more common, and some influential leaders quoted these passages directly; if not directly, many applied Locke’s principles. E.g., Massachusettensis, To All Nations of Men, Massachusetts Spy, Nov. 18, 1773, reprinted in 2 Charles S. Hyneman and Donald S. Lutz, American Political Writing during the Founding era, 1760-1805, at 1:213 (1983).

Religious leaders of the day taught the same. See, e.g., Joseph Smith, Doctrine and Covenants section 134, verse 11 (1835), which echoes, “We believe that men should appeal to the civil law for redress of all wrongs and grievances . . . but we believe that all men are justified in defending themselves, their friends, and property, and the government, from the unlawful assaults and encroachments of all persons in times of exigency, where immediate appeal cannot be made to the laws, and relief afforded.”

[27] E.g., 4 William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 at vol. 1, section II (Univ. of Chicago Press 1979); Charles Secondat, Baron de Montesquieu, The Spirit of the Laws (1775), as compiled in Wardle, supra note 12, at ch. 5.

[28] Wardle, supra note 12, at ch. 11, p. 16.

[29] Smith, supra note 26, at section 134 verse 11 (“[N]o government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right and control of property, and the protection of life.”).

[30] Blackstone, supra note 27, at 1:54.

[31] Quoting and analyzing James Madison, Second Amendment scholar Stephen Halbrook explains Madison’s conclusion that “the press, religion, arms, and similar substantive guarantees are ‘rights which are retained’ and among the ‘pre-existent rights of nature.’ These are the areas in which the Government ‘ought not to act.’ Jury trial and other procedural rights arise from the social compact. They specify that the government must ‘act only in a particular mode.’ Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 255 (2012), quoting 20 Documentary History of the First Federal Congress of the United States of America 11:822 (Charlene B. Bickford ed., 1986) [hereinafter History of the First Congress]; also in 2 Annals of Cong. 1:436-37 (1789) (Joseph Gales ed., 1834) [hereinafter Annals].

[32] Other items enumerated in the first ten Amendments—such as a ban on established churches that was understood to apply at the federal, but not the state level, or the right to a civil jury trial that would be recognized only when the value in controversy exceeded twenty dollars—were clearly more administrative constructions of rights that they expected their new government to observe and respect. But many of the things they sought to protect by embodying them in the new Constitution and initial Amendments—life, liberty, personal property, independent thought and speech, and the ability to defend these against oppression or violation—they certainly regarded as Natural rights. See generally, e.g., Wardle, supra note 12, at ch. 2-7. 10-11.

[33] New York Journal, Supplement, Apr. 13, 1769, at 1, col. 3. This type of rhetoric and appeal to Natural Law was abundant in the American colonies in the 18th Century, and can be found littered throughout most newspapers, sermons, and other literature of the day. See Wardle, supra note 12, at ch. 2, pp. 1-7.

[34] E.g., Boston Chronicle, Sept. 19, 1768, at 363, col. 2; Boston Post, Sept. 19, 1768, at 1, col. 3; New York Journal, Supplement, Sept. 24, 1768, at 1, col. 3. Blackstone listed the right to arms for personal defense as a “Natural right of resistance and self-preservation,” and as one of only five auxiliary rights crucial to the preservation of “the three great and primary rights: personal security, personal liberty, and private property.” Blackstone, supra note 27, at 1:139-41.

[35] N.H. Gazette & Hist. Chron., Jan. 13, 1775, at 1, col. 1 (emphasis in original).

[36] Robertson v. Baldwin, 165 U.S. 275 (1897).

[37] 5 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution 1:31 (Clark, NJ, The Lawbook Exchange, Ltd. 1996) (1803).

[38] Robert Tombs, The English and Their History 249-55 (2015).

[39] Id.

[40] Id.

[41] Id. at 301-06.

[42] Tucker, supra note 37, at 1:139.

[43] Id.

[44] Tombs, supra note 38, at 240.

[45] Id. at 301-06.

[46] Id. at 262-63.

[47] Id.

[48] Id. at 260-63, 307.

[49] 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689).

[50] King v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739).

[51] Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, Mod. Rep. 482 (C.P. 1744).

[52] Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752). The concept seems to grow with each of these decisions.

[53] Blackstone, supra note 27, at 1:139.

[54] In 1774, one newspaper reminded, “[P]utting arms in the hands of the people, for their defence, was a point which the patriots lately carried in the mother country, and contended for, as essential to the preservation of their liberties.” New York Journal, Mar. 31, 1774, at 1, col. 3 (emphasis added).

[55] The Declaration of Independence para. 2 (U.S. 1776). Among the “long train” of abuses included: King George’s refusal “to Assent to Laws” which were “most wholesome and necessary . . . . He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. . . . He has kept among us, in times of peace, Standing Armies without the Consent of our Legislatures. He has affected to render the Military independent of and superior to the Civil Power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For quartering large bodies of troops among us . . .” Id. at paras. 3-16. Among others, these named abuses drastically affected the Founders’ worldview, and the necessity of the right to keep and bear arms.

[56] As an additional example to accompany those that follow, disarmament had also been recently attempted in Wales, as referenced by Sir Edmund Burke when Britain attempted to disarm the American colonies. 35 William Cobbett, The Parliamentary History of England from the Earliest Period to 1803, at 18:512 (London, T.C. Hansard 1813).

[57] As tensions escalated in late 1774, a newspaper used this story to justify the citizens’ appropriation (or rescue) of arms and other materiel. N.H. Gazette & Hist. Chron., Jan. 13, 1775, at 1, col. 1, quoted in Kopel, British Gun Control, supra note 9, at 298. The story referenced took place in 149 B.C., when the Romans ordered the conquered Carthaginians to surrender all their weapons. Once the Carthaginians did so, the Romans destroyed the city and slaughtered approximately ninety percent of the inhabitants. 4 David Deming, Science and Technology in World History: The Ancient World and Classical Civilization 1:156 (2010).

[58] 3 Gregg L. Carter, Guns in American Society: An Encyclopedia of History, Politics, Culture, and the Law 1:316 (2nd ed. 2012).

[59] Id.

[60] Id.

[61] David B. Kopel, Dhimmitude and Disarmament, 18 Geo. Mason U. C.R. L.J. 305 (2008). The Ottoman Empire officially outlawed dhimmitude (oppression of those determined to be second-class citizens, essentially non-Muslims) in 1855; it had lasted long before that, including the period leading up to the American Revolution. Bat Ye’or, The Dhimmi: Jews and Christians under Islam 141 (1985).

[62] Boston Gazette, Mar. 6, 1769, at 1, col 3.

[63] Id. The colonists were well aware of the despotism of the Ottoman Empire, considering the Turkish rulers to be “perhaps the world’s most absolute despots.” Halbrook, supra note 31, at 30. This was common knowledge, and such a part of their thought process that by 1774, they labeled their oppressors at home with unmistakable allusion: Bostonians frequently referred to a council appointed by the royal governor as “the Divan” (after the privy council of the Ottoman Empire), id. see also, e.g., Boston Gazette, Sept. 5, 1774, at 3, col. 2, and even to General Gage as “Bashaw” (pasha, a rank in the Ottoman Empire) and to King George as “Sultan Selim III,” Newport Mercury (Rhode Island), Sept. 19, 1774, at 1, col. 3, in clear reference to the oppression and tactics of the Turks.

[64] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 608 (2008).

[65] Joseph Story, A Familiar Exposition of the Constitution of the United States 354 (Birmingham, Palladium Press 2001) (1840).

[66] Tucker, supra note 37, at 1:139.

[67] John de Witt, Letter to the Editor, To the PEOPLE OF AMERICA, Boston American Herald, Dec. 3, 1787, at 129, reprinted in Philadelphia Freeman’s Journal, Jan. 16, 1788.

[68] Douglass Adair, James Madison’s Autobiography, 2 Wm. & Mary Q. 191, 208 (1945), http://www.jstor.org/stable/1923519.

[69] Heller, 554 U.S. at 593; Joyce L. Malcolm, To Keep and Bear Arms 122-34 (1996).

[70] Richard Price, A Sermon Delivered to a Congregation of Protestant Dissenters 26 (1779).

[71] The Declaration of Independence para. 2 (U.S. 1776).

[72] Samuel Adams quotes much of William Blackstone verbatim as he describes the process of vindicating “the Natural rights of subjects,” explaining that the appropriate process of recourse is, “first to the regular administration and free course of justice in the courts of law—next to the right of petitioning the King and parliament for redress of grievances—and lastly, to the right of having and using arms for self-preservation and defence.” 4 Samuel Adams, The Writings of Samuel Adams 1:317 (Harry Alonzo Cushing ed., 1904).

[73] E.g.,Wardle, supra note 12, at ch. 1, p. 2.

[74] Id.

[75] E.g., Massachusetts Gazette, Feb. 23, 1769, at 1, col. 1.

[76] 2 Mercy O. Warren, History of the Rise, Progress, and Termination of the American Revolution 1:37 (Liberty Classics, 1988) (1805).

[77] Id.; Wardle, supra note 12, at ch. 1, p. 2.

[78] Wardle, supra note 12, at ch. 1, p. 2.

[79] Id. at ch. 1, p. 3; Pennsylvania Gazette, Sept. 29, 1768, at 2, col. 1. To the colonists, this method of enforcement was illegal, “contrary . . . to every principle of reason, justice and equity,” as well as “inconsistent with the Spirit of a free Constitution.” Pennsylvania Gazette, Jun. 15, 1769, at 1, col. 2.

[80] Wardle, supra note 12, at ch. 1, p. 3.

[81] The Declaration of Independence para. 2 (U.S. 1776).

[82] Wardle, supra note 12, at ch. 1, p. 3. “In every stage of these Oppressions,” they declared, “We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence para. 30 (U.S. 1776).

[83] Wardle, supra note 12, at ch. 1, p. 3.

[84] Halbrook, supra note 31, at 9.

[85] Boston Gazette, Sept. 26, 1768, at 3, cols. 1-2; reprinted in, e.g., Virginia Gazette, Oct. 27, 1768, at 2, col. 3; Maryland Gazette (Annapolis), Oct. 20, 1768, at 3, col. 1; Georgia Gazette (Savannah), Nov. 2, 1768, at 1, col. 1.

[86] Halbrook, supra note 31, at 10.

[87] Kopel, British Gun Control, supra note 9, at 285.

[88] British Parliament was specifically aware of the fact that all Americans were armed, and the danger this posed. E.g., Frank A. Mumby, George III and The American Revolution 173 (1924). The rumors circulating in London remarked that the New England militia were so adept with their firearms “as to be capable of shooting a Pimple off a man’s nose without hurting him.” Boston Evening Post, Nov. 21, 1768, at 2, col. 3.

[89] Halbrook, supra note 31, at 14.

[90] Wardle, supra note 12, at ch. 1, p. 3. There had been minor instances of individuals or even small bands resorting to vandalism and threatening British tax collectors, customs officers, or the like; see, e.g., Halbrook, supra note 31, at 14 (recounting broken windows and minor arson in response to seizure of John Hancock’s ship). However, these were individual reactions to individual policies (or statutory taxation schemes); discussions of organized, armed resistance to Great Britain as a whole did not begin until later.

[91] Halbrook, supra note 31, at 27.

[92] See, e.g., Boston Chronicle, supra note 34, at 363, col. 2.

[93] Halbrook, supra note 31, at 16.

[94] Id.; The Redcoats were so ubiquitous that the colonists jokingly referred to them as “tutors” for the American militia. New York Journal, Oct. 27, 1768, at 2, col. 3.

[95] Halbrook, supra note 31, at 17.

[96] Cobbett, supra note 56, at 16:469.

[97] Bernhard Knollenberg, Growth of the American Revolution: 1766-1775, at 83-86, 282-83 (2003).

[98] Id. at 86-87.

[99] Id.

[100] Id.

[101] Id. It is interesting to note that, during the trial, both sides stipulated that the citizens did have the right to arm themselves in self-defense; the contested issue was whether the Bostonians or the soldiers were the aggressors. 3 John Adams, Legal Papers 3:149 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965).

[102] Warren, supra note 76, at 1:54-55; Knollenberg, supra note 97, at 89. Although the governor insisted he had no such authority, the commanding officer recognized the dangerous state of affairs, and evacuated all troops from Boston within four days. Id.

[103] New York Journal, Nov. 10, 1768, at 3, col. 1; Halbrook, supra note 31, at 16. These increased with time, Id. at 22, and it was said that the agents of the Crown “are by sundry violences grieving and irritating the people,” Pennsylvania Gazette, Apr. 20, 1769, at 1, col. 1. Perhaps some of these were only rumored, Knollenberg, supra note 97, at 83, but some were most certainly real (and even the “exaggerated or invented” episodes, id., had very real consequences in propelling the colonists towards independence), Halbrook, supra note 31, at 22. These episodes even included attempts by the British to assassinate certain American patriots. Warren, supra note 76, at 1:49-50.

[104] E.g., New York Journal, Feb. 2, 1769, at 2, col. 2.

[105] Halbrook, supra note 31, at 28.

[106] Letter from John Andrews to William Barrell (Dec. 1, 1773), in Letters of John Andrews, Esq. of Boston, 1772-1776, at 12 (Winthrop Sargent ed., John Wilson & Sons 1866).

[107] Id.

[108] Benjamin L. Carp, Defiance of the Patriots: The Boston Tea Party & The Making of America 13-24 (2010); Knollenberg, supra note 97, at 107-10.

[109] They had been withdrawn three years earlier, at the successful request of the colonists (another attempt at political resolution) after the Boston Massacre; see supra note 102.

[110] 2 David Ramsay, The History of the American Revolution 1:99 (Indianapolis, Liberty Classics 1990) (1789); Knollenberg, supra note 97, at 136-39; Kopel, British Gun Control, supra note 9, at 288-89.

[111] Id; Robert J. Allison, The American Revolution 16-19 (2011).

[112] Kopel, British Gun Control, supra note 9, at 289.

[113] 16 Frederick C. Johnson, The Historical Record of Wyoming Valley 7:111 (1901); Joe D. Huddleston, Colonial Riflemen in the American Revolution 15 (1978); Horace Kephart, The Birth of the American Army, 98 Harper’s New Monthly Mag., Dec. 1898-May 1899, at 963 (quoting the Hanover Resolves) (June 4, 1774)).

[114] See, e.g., supra notes 73-77.

[115] Halbrook, supra note 31, at 31. Referring to rapidly-growing trend of the people arming themselves to defend their liberties, General Gage himself wrote, “I don’t suppose People were ever more possessed with Zeal and Enthusiasm.” Letter from Thomas Gage to Secretary Dartmouth, Oct. 3, 1774, in 2 Correspondence of General Thomas Gage with the Secretaries of State, and with the War Office and the Treasury, 1763-1775, at 1:378 (Clarence E. Carter, ed. 1933).

[116] E.g., Boston Gazette, Jan. 24, 1774, at 1, col. 3; New York Journal, Mar. 31, 1774, at 1, col. 3. John Hancock, asked by the Bostonians to speak on the fourth anniversary of the Boston Massacre, orated that the militia “fight for their houses, their lands, their wives, their children . . . they fight pro aris & focis, for their liberty, and for themselves, and for their God,” adding, “no militia ever appear’d in more flourishing condition, than that of this province now doth.” John Hancock, An Oration: Delivered March 5, 1774, at the Request of the Inhabitants of the Town of Boston 14-15 (Edes & Gill 1774).

[117] Halbrook, supra note 31, at 32.

[118] Among other instances, Gage wrote, “In Worcester they keep no Terms, openly threaten Resistance to Arms, have been purchasing Arms, preparing them, casting Ball, and providing Powder, and threaten to attack any Troops who oppose them. . . . I apprehend that I shall soon be obliged to march a Body of Troops into that Township, and perhaps into others, as occasion happens, to preserve the Peace.” Letter from Thomas Gage to Secretary Dartmouth, Aug. 27, 1774, in Correspondence of General Gage, supra note 115, at 1:366.

[119] Lieutenant Governor Thomas Oliver to Secretary Dartmouth, Dec. 9, 1774, in Documents Relating to the Last Meetings of the Massachusetts Royal Council, 1774-1776 (Albert Matthews ed.), 34 Transactions of the Colonial Society of Massachusetts 3:492 (1937).

[120] The rumors of disarmament had run for years (see supra note 104); if they were unfounded before, they were more tenable now: Gage’s “Divan” (the Royal privy Council) met to discuss the increasing “very great tumults and disorders prevailing in many parts of the Province, tending to the intire subversion of the Government.” Last Meetings of the MA Royal Council, supra note 119, at 32:460. A proposed solution was to ban firearms, and the Divan then debated the best way to carry out disarmament. Boston Gazette, Sept. 5, 1774, at 3, col. 2; Massachusetts Spy, Sept. 8, 1774, at 3, col. 3; Pennsylvania Gazette, Sept. 14, 1774, at 2, col. 3; Halbrook, supra note 31, at 31.

[121] Andrews, supra note 106, at 19-20, 58; Robert P. Richmond, Powder Alarm: 1774, at 81-87 (1971); Richard Frothingham, Life and Times of Joseph Warren 381-82 (Little, Brown, & Co. 1865); Adams, supra note 72, at 1:208.

[122] Halbrook, supra note 31, at 37-57.

[123] Knollenberg, supra note 97, at 266, 502, n.10; David H. Fischer, Paul Revere’s Ride 44-45 (1994).

[124] Id. at 50. A 19th-century historian later noted that, at that time, “The policy of disarming the people had been acted on, though it had not been followed up very energetically.” By the spring of 1775, “The indications now were, that this policy would be carried out in earnest.” Frothingham, supra note 121, at 454.

[125] A handbill was distributed throughout New York City in late December 1774, inciting in part, “[W]hen Slavery is clanking her infernal chains, . . . will you supinely fold your arms, and calmly see your weapons of defence torn from you, by a band of ruffians?” 9 American Archives, 1:1070 (Peter Force ed., Washington, Ser. No. 4, 1837-1846).

[126] Boston Gazette, Dec. 5 1774, at 4, col. 1.

[127] Andrews, supra note 106, at 38.

[128] American Archives, supra note 125, at 4:762.

[129] Diary entry (Sept. 25, 1774), in 5 Ezra Stiles, Literary Digest 2:479 (F.B. Dexter ed., 1901), quoted in Fischer, supra note 123, at 46.

[130] Allen French, The Day of Concord and Lexington: The 19th of April, 1775, at 19 (1925).

[131] Brown, supra note 11, at 225-27.

[132] Id.

[133] Halbrook, supra note 31, at 39.

[134] Virginia Gazette, Sept. 22, 1774, at 3, col. 1; Elias Phinney, History of the Battle at Lexington 10 (Boston, Phelps and Pharnam 1825).

[135] Kopel, British Gun Control, supra note 9, at 292.

The First Continental Congress convened on September 5, just a few days later. Richmond, supra note 121, at 78. Paul Revere rode down to them in Philadelphia to apprise them of the developments. Id. That body unanimously condemned Britain’s “wicked ministerial measures” and endorsed the colonists’ actions and response. 34 Journals of the Continental Congress: 1774-1789, at 1:9-14, 39 (Washington C. Ford ed., 1904) (adopted Sept. 10, 1774).

Prominent citizen John Andrews wrote, “But if they should come to disarming the inhabitants, the matter is settled . . . blood and carnage must inevitably ensue—which God forbid! should ever take place.” Andrews, supra note 106, at 46.

[136] The same body originally convened as the Massachusetts Assembly, but by this point in the tensions between colonial self-government and the Crown losing its grip over the colony, Governor/General Gage declared the body unlawful. They reconvened as the “Provincial Congress,” with the wealthy merchant (and later signer of the Declaration of Independence) John Hancock presiding. Kopel, British Gun Control, supra note 9, at 294.

[137] Halbrook, supra note 31, at 47.

[138] This was a select body of militiamen who were on call to be rapidly deployed at any time with only a minute’s notice; they constituted about a quarter of the militia as a whole. E.g., Public Records of the Colony of Connecticut, From May 1775, to June 1776, inclusive, at 17, 291 (Hartford, Conn., Brown & Parsons, n.d.).

[139] These acts effectively usurped the Crown’s authority over the militia, no longer recognizing its control and dismissing its appointed officers. The Journals of each Provincial Congress of Massachusetts 34 (1838) (detailing the First Provincial Congress of Massachusetts on October 26, 1774); Kopel, British Gun Control, supra note 9, at 295; Halbrook, supra note 31, at 47-48; Knollenberg, supra note 97, at 214-15.

[140] French, supra note 130, at 24.

[141] This was completely unlawful in the eyes of the Americans, as their firearms were their private property, which they had the right to retain, but they saw that “Governor Gage has at length laid his hand on private property.” Boston Gazette, Sept. 5, 1774, at 3, col. 2.

[142] Halbrook, supra note 31, at 46, 57; Andrews, supra note 106, at 92.

[143] The colonists saw this as a “ridiculous proclamation” and an “absurd creature,” and not as valid law. Newport Mercury (Rhode Island), Apr. 10, 1775, at 2, col. 1.

[144] Parliament decreed a prohibition on the exportation of any firearms or ammunition, as well as on the importation of the same into the colonies. Halbrook, supra note 31, at 58-66; 29 Geo. II cl. 16 (1756); Knollenberg, supra note 97, at 204-05. It was none other than Benjamin Franklin who then orchestrated major gunrunning shipments to the colonies from France, Spain, and Holland. Richmond, supra note 121, at 95.

[145] This was a finding of the General Committee, the governing body of South Carolina. 2 John Drayton, Memoirs of the American Revolution 1:166 (Charleston, A.E. Miller 1821).

[146] Henry was “a born ham actor,” seen as “a firebrand, a man of extremes, a rabble-rouser, and an unreflective man of action,” and his speeches were given in what was described as “his customary dramatic manner.” Indeed, this speech was as much acting as it was oration, and quite dramatic (See text at infra note 151). Paul Johnson, A History of the American People 145, 147-48 (1999).

[147] Delegate Patrick Henry, Address at the Convention of Delegates of Virginia at Richmond (Mar. 23, 1775), in The Avalon Project at Yale Law School, http://avalon.law.yale.edu/ 18th_century/patrick.asp; also in the Virginia Gazette, Apr. 1, 1775, at 2, cols. 1-2; Journal of Proceedings of Convention held at Richmond 34 (Williamsburg, 1775).

A historian describes Henry’s theatrics during the speech, first dropping to his knees in the position of a manacled slave, with low but rising intonation, until his finale when he sprang to his feet, flung his arms wide, and finally “clenched his right hand as if holding a dagger at his breast, and said in sepulchral tones, ‘Or give me death!’” It was a rousing enough performance to stir even those listening from without the building. Johnson, supra note 146, at 148-49.

[148] “That a well regulated Militia, composed of Gentlemen and Yeomen, is the natural Strength, and only Security, of a free Government.” Journal of Convention at Richmond, supra note 147, at 10.

[149] Id. at 11, 17.

[150] See, e.g., the Ditson incident, recounted in detail and from various perspectives in Halbrook, supra note 31, at 55-57; the armed tension at the annual memorial of the Boston Massacre, Frederick MacKenzie, A British Fusilier in Revolutionary Boston 37-39 (Allen French ed. 1969); a confrontation where the British Army snatched the arms of a group of exercising militia, who then called out a larger band of militia to pursue the Redcoats and retake their weapons, Massachusetts Gazette, Dec. 29, 1774, at 2, col. 2; in response to the embargo, a party of several hundred armed citizens stormed the castle—two days in a row—at Fort William and carried away cannons, more than 100 barrels of gunpowder, and 1,500 small arms, James T. Adams, Revolutionary New England 1691-1776, at 412 (1923); John R. Alden, General Gage in America, 224 (1969); Fischer, supra note 123, at 56; Halbrook, supra note 31, at 62; Americans issued threats to customs officials enforcing the ban, stating, among other things (in entertainingly colorful language), “[Y]ou have declared yourself an inveterate enemy to the liberties of North America; in this light we view you, and from you we will demand these Arms . . . [and you will deliver them] if you have the least regard to [your] safety,” or they would retaliate “with a vengeance,” American Archives, supra note 125, at 1:1070; Bloodshed was barely avoided on February 27, 1775, when British forces landed at Salem to seize the colonists’ growing stock of munitions. Foreshadowing Paul Revere’s more famous ride, a rider warned, “The regulars are coming after the guns and are now near!” The people swarmed, dragging cannon into the woods and hiding their arsenals. After a stand-off, confrontation was avoided, and the troops left empty-handed. Halbrook, supra note 31, at 68; Fischer, supra note 123, at 59-63. Had a shot been fired by either side at any of these illustrative (but not unique) incidents, the war may have easily begun then, instead of later in April.

[151] This may have also been spurred on by the fact that Britain’s arms embargo was a six-month provision, but with option to extend for an additional six months at each expiration. The King exercised that option just before the first expiration—which would have been on 19 April, 1775. Halbrook, supra note 31, at 73.

[152] Id. at 76; Frothingham, supra note 121, at 453; Allen French, General Gage’s Informers 9-33 (1932).

[153] Fischer, supra note 123, at 103.

[154] Id. at 133-34; Phinney, supra note 134, at 16-18.

[155] The British troops marched toward Concord, not knowing that the Americans had discovered their plans, but noticing heightened activity. In the middle of the night, they knocked on one door where they noticed a light burning; the lady of the house claimed to be brewing tea, but in fact was melting pewter dishes into bullets. At another house, an 11-year-old girl recalled that she and her sister “were set to work making cartridges.” Fischer, supra note 123, at 126, 169; Halbrook, supra note 31, at 77.

[156] Halbrook, supra note 31, at 75-77; Phinney, supra note 134, at 14-23; Knollenberg, supra note 97, at 220-330.

[157]It is unclear which side fired; American reports consistently blame the British (saying that their commander explicitly ordered them to fire), while British reports assert the opposite. See, e.g., Phinney, supra note 134, at 20; see also Pennsylvania Reporter, May 1, 1775, at 5, col. 1; and May 15, 1775, cols. 2-3; cf. Knollenberg, supra note 97, at 333.

[158] The British never abandoned their plan to disarm the patriots, knowing that unless that succeeded, they could not. For example, the Under-Secretary of State for Colonial Affairs drafted a plan entitled, “What is Fit to be Done with America?” In it he proposed, among other measures, and in more detail, that the militia should be disbanded and “the Arms of all the People should be taken away . . . .” William Knox, Considerations on the Great Question, What is Fit to be Done with America, (1763), in 2 Sources of American Independence: Selected Manuscripts from the Collections of the William L. Clements Library 1:140 (Howard H. Peckham ed., 1978).

[159] One criticism I was given while writing this essay was from a well-respected professor of Constitutional Law of mine. He asked, “This paper treats ‘the Founders’ as fairly monolithic (with the exception of a brief discussion about anti-federalist views of standing armies). Were there no disagreements among them about the content and application of the right to bear arms?” I have not included any because I cannot find any legitimate source quoting the Founders or claiming that they interpreted the right to keep and bear arms differently than presented in this paper. Modern arguments that the Founders intended for the Second Amendment to protect the new government, and not the people from the government, or the claim that they did not believe it to be an individual right, are sufficiently refuted herein. Other claims, such as the Second Amendment’s continued relevancy in a changing world, are not pertinent here, where the focus is on the origins of the Second Amendment and the contemporary understanding of that right.

[160] David E. Young, The Origin of the Second Amendment: A Documentary History of the Bill of Rights in Commentaries on Liberty, Free Government & an Armed Populace 1787-1792, at xxxvi (2nd ed., 1995).

[161] On the final day of the Constitutional Convention, Dr. Benjamin Franklin rose to give a speech in which, supporting the new plan (he expressed doubt that any better Constitution could have been created), he acknowledged that the new government would endure “for a course of years,” but that it could “only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.” Wardle, supra note 12, at ch. 17, p. 43 (Madison’s Notes, Sept. 17, 1787) (statement of DOCr. FRANKLIN).

[162] The Declaration of Independence para. 2 (U.S. 1776).

[163] Young, supra note 160, at xxvii.

[164] 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689).

[165] Id. at c. 1, § 5.

[166] Id. at c. 2, § 6.

[167] 7 The Complete Anti-Federalist 2:58 (Herbert J. Storing ed., 1981).

[168] Boston Gazette, Oct. 3, 1768, at 2 col. 2.

[169] “A Carolinian,” From the South Carolina Gazette, of August 23, 1774, Virginia Gazette, Sept. 27, 1774, at 1, cols. 2-3 (emphasis added).

[170] de Witt, supra note 71; Young, supra note 160, at 211.

[171] While some argued, as above, that it would be better to run the risk of foreign invasion than to have any central Army (see, “A Carolinian,” supra note 169), many understood that in times of war, a standing army must be raised (see, e.g., as early as the English Declaration of Rights, 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441 (1689)).

[172] Pa. Const. of 1776, Declaration of Rights, art. XIII.

[173] 2 Joseph Story, Commentaries on the Constitution of the United States 2:620 (4th ed. Boston, Little, Brown, & Co. 1873) (Originally 3 volumes; 1833). Justice Story’s entire quotation continues, “It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended, and the facile means which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.”

[174] This was the general understanding of the people and the leaders at the time. For example, George Mason, delegate to the Constitutional Convention and author of Virginia’s Declaration of Rights of 1776, affirmed in the debates that the militia “consist now of the whole people, except a few public officers.” 5 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 3:427 (Jonathan Elliot ed., 2d ed. Burt Franklin Reprints 1974) (1888) [hereinafter Convention Debates]. In fact, current U.S. Code still maintains the same definition: “The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States,” as well as any female members of the National Guard. 10 U.S.C. § 311 (2016). Given the consistency across the centuries, the composition of the militia as understood by the Founders will not be dwelt on here.

However, some argue today that the right to keep and bear arms—ultimately secured in the Second Amendment—does not secure any individual right, but only a right in connection with militia service, meaning, to them, service in the National Guard. See, e.g., Patrick J. Charles, The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009). Consequently, it bears mention here that this was not the understanding nor the intention of the Founders. The militia needed to include the whole body of the people (as it does today, still on the books; Title X continues to define that the “organized militia” includes the National Guard, but that the “unorganized militia” is everyone else). If the government could select the individuals to compose the militia, and the right to keep and bear arms belonged only to them, it could disarm everyone else, which is exactly the reason they feared standing armies. A militia of the whole body of the people was the only way to ensure the strength, geographic availability, and lack of federal control of the militia (and the nation’s firearms). See Federal Farmer No. XVIII, in Anti-Federalist, supra note 167, at 1:339-49; Young, supra note 160, at xlvii, 353-55.

[175] A typical Anti-Federalist argument maintained that a powerful central government (and its army) could “disarm or render useless the militia,” Letter from George Mason to Thomas Jefferson, May 26, 1788, in Young, supra note 160, at 366, while the Federalists countered that “if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens…[trained] in the discipline and use of arms, who stand ready to defend their own rights and those of their fellow citizens.” The Federalist No. 29, at 185-86 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[176] He added that the militia “constitute a force superior to any bands of regular troops that can be, on any pretence, raised in the United States.” Noah Webster, An Examination into the Leading Principles of the Federal Constitution (a pamphlet aimed at swaying Pennsylvania toward ratification) (1787), in Pamphlets on the Constitution of the United States, at 56 (Paul Ford ed., New York, 1888).

[177] The Federalist No. 46, at 297-99 (James Madison) (Clinton Rossiter ed., 1961).

[178] Id.

[179] Convention Debates, supra note 174, at 2:97.

[180] Id. at 3:51.

[181] Id. at 3:380.

[182] Tench Coxe, Letter to the Editor, Pennsylvania Gazette, Feb. 20, 1788. A greater excerpt of his letter reads, “The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible army must be tremendous and irresistible. Who are these militia? Are they not ourselves? . . . Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. What clause in the [Federal] Constitution hath given away that important right. . . . [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but where I trust in God it will ever remain, in the hands of the people.”

[183] Newspapers echoed the talking points of both sides. One discussed how the new Congress, “at [its own] pleasure may arm or disarm all or any part of the freemen of the United States, so that…they may put it out of the power of the freemen…to assert and defend their liberties.” de Witt, supra note 71. Others held that the militia was “the natural strength, and only stable safeguard, of a free country,” and that “the supreme power is ever possessed by those who have arms in their hands, and are disciplined in the use of them.” Josiah Quincy, Memoir of the Life of Josiah Quincy Jun. 411, 428 (Boston, Cummings, Hilliard, & Co., 1825). That could have been the militia or a standing army, but they were confident that the people would defend and retain their right to keep and bear arms.

[184] While Federalists and Anti-Federalists differed on the need for a written expression attempting to protect individual rights, such as that of arms, “no one disputed . . . that ‘it is essential that the whole body of the people always possess arms’ and should know ‘how to use them.’ Individual firearm ownership, whether as a right or a simple fact, simply was not questioned.” Halbrook, supra note 31, at 188 (emphasis added).

[185] Blackstone, supra note 27, at 1:54.

[186] New York Journal, Supplement, Apr. 13, 1769, at 1, col. 3.

[187] Young, supra note 160, at xxiii.

[188] Id.

[189] Wardle, supra note 12, at ch. 17, p. 31-32 (Madison’s Notes, Sept. 12, 1787) (Elbridge Gerry moved to appoint a committee to draft a bill of rights; Col Mason seconded).

[190] Wardle, supra note 12, at ch. 17, p. 42 (Madison’s Notes, Sept. 15, 1787) (statements of Mr. Randolph, Governor of Massachusetts, and Col. Mason). These statements are illustrative, but certainly not the only mention; a review of the weeks preceding the close of the Convention reveals lengthy debate on the subject.

[191] Young, supra note 160, at xxx.

[192] Id. at xlii, xxxvi.

[193] Id.; Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 222-23 (1983). For a meticulous discussion surrounding the adoption of a Bill of Rights with particular treatment of the people’s right to keep and bear arms, see generally Halbrook, supra note 31, at ch. 8.

[194] Thomas Jefferson, then Minister of France, industriously promoted a bill of rights in his many transatlantic letters. Young, supra note 160, at xliv, xxxv.

[195] See, e.g., Id. at xlii-xliv; Kurt T. Lash, The Lost Original Meaning of the Ninth Amendment, 83 Tex L. Rev 331 (2004); The Federalist No. 84 (Alexander Hamilton).

[196] The Federalist No. 84 (Alexander Hamilton).

[197] Noah Webster, To the DISSENTING MEMBERS of the Late CONVENTION OF PENNSYLVANIA, New York Daily Advertiser, Dec. 31, 1787, reprinted in 15 The Documentary History of the Ratification of the Constitution (John P. Kaminski et al. eds., 1st ed. 1990). Another article scoffed, “The want of a bill of rights is the great evil. There was no occasion for a bill of wrongs; for there will be wrongs enough. But oh! a bill of rights!” Hugh H. Brackenridge, Pittsburgh Gazette, Mar. 1, 1788.

[198] Young, supra note 160, at xxxi.

[199] Convention Debates, supra note 174, at 4:242-47, 250.

[200] Kates, supra note 193, at 222.

[201] Id.

[202] Id.; 2 Bernard Schwartz, The Bill of Rights: A Documentary History 1167 (1971).

[203] Dana Loesch, Hands Off My Gun: Defeating the Plot to Disarm America 174 (2014).

[204] Eleven of the thirteen States drafted Constitutions between 1776 and 1780; Connecticut’s 1662 constitution and Rhode Island’s from 1663 (both adopted more than a quarter century before the Glorious Revolution and English Bill of Rights) did not mention arms, and remained in effect until after 1800. The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, Compiled and Edited Under the Act of Congress of June 30, 1906 (Francis N. Thorpe ed., 1909).

[205] 27 Thomas Jefferson, The Papers of Thomas Jefferson 1:344, 353, 363 (Julian P. Boyd et al. eds., Princeton Univ. Press 1950) (1760-1776).

[206] Id. at 1:344.

[207] Documentary History of Ratification, supra note 197, at 9:821. Richard Henry Lee, delegate to the Constitutional Convention and leader in Virginia, opined during the proposal of Virginia’s amendment, “A militia when properly formed are in fact the people themselves . . . and include, according to the past and general usage of the states, all men capable of bearing arms. . . . 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.” Richard Henry Lee, Federal Farmer No. 18, Jan. 25, 1788.

[208] Convention Debates, supra note 174, at 1:327-31.

[209] Id. at 2:162.

[210] Young, supra note 160, at xlix.

[211] Kates, supra note 193, at 222.

[212] History of the First Congress, supra note 31, at 4:10.

[213] U.S. Const. amend. II.

[214] Id. (emphasis added).

[215] History of the First Congress, supra note 31, at 4:10.

[216] See supra note 5.

[217] See, e.g., the current state of firearms legislation in States including but not limited to California, Connecticut, New York, and Colorado, which establish infringements such as outright bans on the most common types of firearms in America, limits on magazine capacities, waiting periods, limits on purchases, State permission slips required to purchase, etc. (e.g., Cal. Penal Code §§ 16350, 16740, 16790, 16890, 30500-31115, 32310-32450; Conn. Gen. Stat. §§ 53-202a – 53-202o; Mass. Gen. Laws ch. 140, §§ 121, 122, 123, 131, 131M; N.Y. Penal Law §§ 265.00(22)(23), 265.02(7)(8), 265.10, 265.11 (.20.36.37), 400.00(16-a), Colo. Rev. Stat. §§ 18-12-301, 18-12-303; etc.).

[218] It is not the intent in this section to address the many modern-day political debates on the topic, but rather, only to understand the frame of mind of the Founders for the Second Amendment, and their intentions regarding the right at that time.

[219] Annals, supra note 31, at 1:778.

[220] U.S. Const. pmbl.

[221] Heller, 554 U.S. at 579-81, n.6.

[222] History of the First Congress, supra note 31, at 4:10; U.S. Const. pmbl. For “powers” throughout the Constitution, see, e.g., U.S. Const. art. I, §8, art. II, §2, art. III, §3, etc.

[223] See, e.g., section III. of this paper.

[224] Halbrook, supra note 31, at 325.

[225] James Madison, regarded as the Father of the Constitution, held this view absolutely. His “distinction between powers and rights assumed a sharply definable boundary between governmental and individual discretion. For Madison, a power was a delegated capacity allowing the government to perform certain kinds of acts. . . . It is Madison’s consistent usage, which eliminated the ambiguous concept of state rights as referring to both governmental and personal rights, replacing it with the clearer power/right dichotomy, that was adopted with the Bill of Rights.” Russell L. Caplan, The History and Meaning of the Ninth Amendment, in The Rights Retained by the People: The History and Meaning of the Ninth Amendment 278-79, n.142 (Randy E. Barnett ed., 1989).

[226] The Court referred to “the unquestioned premise that the Bill of Rights, when adopted, was for the protection of the individual against the federal government.” Adamson v. California, 332 U.S. 46 (1947). “The words ‘people of the United States’ . . . describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people. . . .’” Dred Scott v. Sandford, 60 U.S. 393 (1856).

[227] In constitutional or statutory construction, language should always be accorded its plain meaning. From the era, see, e.g., Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816); accord, Bradley C. Karkkainen, Plain Meaning: Justice Scalia’s Jurisprudence of Strict Statutory Construction, 17 Harv. J. L. & Pub. Pol’y 401 (1994).

[228] Specifically regarding the Second Amendment, the leading 19th century treatise on Constitutional law recapitulated: “The [Second] [A]mendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. . . . The Right is General. . . . The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.” Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 270-71 (Boston, Little, Brown & Co. 1880).

[229] U.S. Const. amend. II. Rights specifically guaranteed to “the people” (individuals) are found in the first nine amendments, while powers reserved to the states or retained by the people are relegated to the tenth. If the Framers had viewed the Second Amendment as a collective right belonging to the States, they would have placed it near the Tenth, rather than second (in the middle of the other clearly individual rights). Kates, supra note 193, at 218-21.

[230] U.S. Const. amend. I.

[231] U.S. Const. amend. III.

[232] U.S. Const. amend. IV (emphasis added). “This description of ‘the people’ as having ‘persons, houses, papers, and effects’ is instructive. These are the same ‘persons’ whose ‘papers’ and ‘effects’ include printed matter and arms that they keep in their ‘houses’ and bear or carry outside the home. In light of the Crown’s abuses, the Fourth Amendment was intended to play a key role in protection of First and Second Amendment rights.” Halbrook, supra note 31, at 324.

[233] U.S. Const. amends. V-VII.

[234] U.S. Const. amends. VIII-IX (emphasis added).

[235] James Madison, Notes for Speech in Congress, Jun. 8, 1789, in 17 The Papers of James Madison 12:193 (Charles F. Hobson et al. eds., 1979).

[236] William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236, 1246-47 (1994); Halbrook, supra note 31, at 209, 314.

[237] Democratic Press (Philadelphia), Jan. 23, 1823, at 2, col. 2.

[238] Schwartz, supra note 202, at 2:1025-30; Halbrook, supra note 31, at 254; Young, supra note 160, at xxxviii-xxxix; Kates, supra note 193, at 223-24.

[239] Schwartz, supra note 202, at 2:1025-30; Halbrook, supra note 31, at 254; Young, supra note 160, at xxxviii-xxxix; Kates, supra note 193, at 223-24.

[240] The Militia Act of 1792 required “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years… shall…provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges…and shall appear, so armed, accoutered and provided, when called out to exercise, or into service” for the militia. 1 Stat. 271, 2 Cong. Ch. 33 (Militia of the United States, Chapter XXVIII, 1792). This was the Nation’s first “individual mandate.”

[241] E.g., United States v. Cruikshank, 92 U.S. 542 (1875); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894); United States v. Miller, 307 U.S. 174 (1939); Heller, 554 U.S. 570; McDonald v. City of Chicago, 561 U.S. 742 (2010).

[242] Halbrook, supra note 31, at 333.

[243] See U.S. Const. amend. IX.

[244] Letter from Thomas Jefferson to William Smith (Nov. 13, 1787), in 12 Thomas Jefferson, The Works of Thomas Jefferson 5:360-64 (Paul L. Ford ed. 1904-05) (1786-89).

[245] Samuel Adams wrote that the people were “calling upon one another to be provided with” arms to defend against tyranny. Samuel Adams, supra note 72, at 1:299.

[246] The Federalist No. 28, at 148 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[247] Young, supra note 160, at xxxvi.

[248] Story, Commentaries on the Constitution, supra note 177, at 2:620.

[249] For example, the ability to use firearms for hunting was taken for granted by the Americans. When one Pennsylvania delegate proposed that the Amendment protecting the right to arms include language “for the purpose of killing game,” Noah Webster commented (on that and similar proposals by other States), “Where then the necessity of laws to secure hunting and fishing? You may just as well ask for a clause, giving license for every man to till his own land, or milk his own cows.” Documentary History of Ratification, supra note 197, at 19:490-91.

[250] Halbrook, supra note 31, at 78-79. Thomas Jefferson wrote to his nephew, “As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. . . Let your gun therefore be your constant companion of your walks.” The Thomas Jefferson Papers, supra note 205, at 8:207.

[251] United States v. Emerson, 270 F.3d 203, 230 (5th Cir. 2001).

[252] Halbrook, supra note 31, at 327; A Dictionary of the English Language: A Digital Edition of the 1755 Classic by Samuel Johnson (Brandi Besalke ed., 2013), http://johnsonsdictionaryonline.com/.

[253] Halbrook, supra note 31, at 327.

[254] George C. Neumann, A History of Weapons of the American Revolution 151 (1967).

[255] Boston Gazette, Jan. 24, 1774, at 1, col. 3.

[256] Frothingham, supra note 121, at 452.

[257] Ashley Halsey, Jr., George Washington’s Favorite Guns, American Rifleman, Feb. 1968, at 23.

[258] Halbrook, supra note 31, at 42-44.

[259] The right to bear arms in connection with the militia was clear, but was separate and distinct from the individual right generally, which included lawful purposes such as hunting and self-defense. See generally Heller, 554 U.S. 570; see also Halbrook, supra note 31, at 330-37. The clear distinction between these was expressed in various proposals and drafts of the right to arms, such as that of the New York Ratifying Convention: “That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.” Convention Debates, supra note 174, at 1:327-31.

[260] “But if, in any blind pursuit of inordinate power, either [Federal or State government] should attempt [to infringe the right to keep and bear arms], this Amendment may be appealed to as a restraint on both.” And such attempts are “disgraceful.” William Rawle, A View of the Constitution of the United States of America 125-26 (2d ed., Boston, Da Capo Press 1970) (1829).

[261] 17 George Washington, The Papers of George Washington, Presidential Series 4:543-44 (Dorothy Twohig ed. 1993).

[262] Massachusetts lawyer Daniel Leonard, who later turned Tory and left with the British, nevertheless understood the principle: “No matter how numerous a people may be, if they are unskilled in arms, their number will tend little more to their security, than that of a flock of sheep does to preserve them from the depredations of the world. . . . A people who would stand fast in their liberties should furnish themselves with weapons proper for their defence, and learn the use of them.” Massachusettensis, supra note 26, reprinted in Hyneman, supra note 26, at 1:192 (1983).

[263] The Thomas Jefferson Papers, supra note 205, at 2:195. Similar (entertaining) episodes of marksmanship pride, including contests between colonists and occupying Redcoats, may be found in Halbrook, supra note 31, at 45-46.

[264] Richard Henry Lee’s full statement reads, “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.” Federal Farmer No. 18, supra note 207.

[265] In a few instances of recorded examples just during 1768-1769, the wind blew open a home’s shutters, knocking over a loaded gun that discharged, tragically killing a 13-year-old girl. In another incident, a soldier grabbed a pistol from a citizen, causing it to fire and killing a young passerby. In yet another misfortune, a group out target shooting failed to practice proper gun safety and a woman was accidentally shot and killed. Halbrook, supra note 31, at 19, 74.

[266] Reynolds, supra note 4, at 484. The professor followed up, “Such consequential concerns may be relevant to, say, the question of whether to repeal the First or Second Amendments, but they should certainly have no role in how we interpret or apply them.”

[267] Levinson, supra note 4, at 649.

[268] Relevantly, the passage continues, “The laws that forbid the carrying of arms are laws of such a nature. They disarm those only who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides, for an unarmed man may be attacked with greater confidence than an armed one.” Cesare Beccaria, On Crimes and Punishments (Henry Paolucci trans., Indianapolis, Bobbs-Merrill 1963) (1809). Thomas Jefferson had this passage highlighted in a book he purchased both in Italian and in English, and later included the passage in his “Legal Commonplace Book.” Monticello, Home of Thomas Jefferson, Thomas Jefferson Foundation, Inc. (Feb. 2003), https://www.monticello.org/site/ jefferson/laws-forbid-carrying-armsquotation.

[269] Madison, supra note 235, at 12:193.

[270] See supra note 265.

[271] U.S. Const. amend. II.

[272] Wilfred E. Rumble, James Madison on the Value of Bills of Rights, in Nomos XX: Constitutionalism 122, 133 (J. Roland Pennock & John W. Chapman eds., 1979).

[273] U.S. Const. amends. I, IV. At least one proposal for what became the First Amendment initially included the same prohibition on any “infringement” of the rights. Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, Held in the Year 1788, and which Finally Ratified the Constitution of the United States 87 (Bradford Pierce & Charles Hale eds., Boston, 1856), National Archives, https://archive.org/details/debatesandproce00peirgoog.

[274] U.S. Const. amend. II.

[275] Locke, supra note 22, at 296-98.

[276] For example, Thomas Jefferson compared the Americans to ancient Greek and Rome: “The Greeks and Romans had no standing armies, yet they defended themselves. The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so.” Letter from Thomas Jefferson to Thomas Cooper (Sept. 10, 1814), in 12 Thomas Jefferson, The Papers of Thomas Jefferson, Retirement Series 7:649-55 (J. Jefferson Looney ed., Princeton Univ. Press 2010) (1813-14).

[277] Heller, 554 U.S. at 582.

[278] Edgar S. Maclay, A History of American Privateers 244-45, 278 (1970).

[279] U.S. Const. Art. I, §8, cl. 11.

[280] Maclay, supra note 278, at 7.

[281] Stephen Howarth, To Shining Sea: A History of the United States Navy, 1775–1998, at 16 (1999).

[282] Jack Kenny, General John Stark: The Man, The Motto, and The “Coverup”, The New American, Jun. 24, 2011.

[283] Id. It was he who said, “Live Free or Die,” which now adorns the NH license plate.

[284] See, e.g., Halbrook, supra note 31, at 44, and 44 n.73.

[285] Id. at 181. This also applied to quantity: for example, when a cache of ammunition was seized by the Redcoats from a colonist traveler, the “patriot press” emphasized that there was nothing illegal about private ownership of arms and ammunition, even in huge quantities. Id. at 71.

[286] Pollard’s History of Firearms 76, 80-81, 207, 214 (Claude Bair ed., 1983).

[287] E.g., Free speech is not limited to quill and parchment; the right is intact although there may emerge new ways to engage.

[288] See U.S. Const. Art. I, §8, cl. 8. The Framers likely included “arms” in the Second Amendment, rather than specifying what weapons were (or were not) protected, because of this anticipation.

[289] Halbrook, supra note 31, at 337.

[290] Id. at 20.

[291] Tench Coxe, Letter to the Editor, Pennsylvania Gazette, Feb. 20, 1788.

Posted in Constitution | Tagged , , , , , , , , , , , | Comments Off on The Founders’ Right to Keep and Bear Arms: The True Palladium of Liberty

Washington and Jefferson On Slavery

 This post is from a paper I wrote in Law School. When I have a chance, I should like someday to take more time to research and develop the topic further.

George Washington and Thomas Jefferson on Slavery

Introduction

Many people today condemn the Founding Fathers, including George Washington and Thomas Jefferson, for permitting slavery to continue in the United States when they formed the new Government under the Constitution.[1] However, such contempt and condemnation is misplaced. Although it is true that the new Constitution approved by both of these men permitted slavery to continue to exist until at least 1808[2] and required fugitive slaves to be returned to their owners,[3] the Founders knew that without these concessions, the Constitution would never be accepted.[4]  Even though Washington and Jefferson owned slaves, most people overlook the fact that both abhorred slavery and desired to abolish slavery completely. In this paper, I will present several comments from Washington and Jefferson expounding in their own words, their views on slavery.

Washington

In his early life, George Washington, like many others of his day, bought and sold slaves much like buying and selling land.[5] However, in his later life, General Washington grew to deplore slavery and to desire its abolition. He made his desire known in a letter near the end of the revolutionary War to the Marquis de Lafayette. General Washington wrote:

The scheme, my dear Marqs. which you propose as a precedent, to encourage the emancipation of the black people of this Country from that state of Bondage in wch. they are held, is a striking evidence of the benevolence of your Heart. I shall be happy to join you in so laudable a work.[6]

General Washington wished the legislatures would abolish slavery, but considering himself a man of honor, he felt compelled that the slave laws be properly enforced until such laws could be passed ending slavery. In a letter to Robert Morris concerning a slave being harbored by a Society of Quakers instead of being returned to his master as required by law, Washington told Morris that the slave should be returned because of the need to be obedient to law. However, Washington also expressed to Morris his contempt for slavery, calling it a “misfortune” to those who own slaves[7] and expressed his desire that slavery be abolished by legislative means.

I hope it will not be conceived by these observations, that it is my wish to hold the unhappy people who are the subject of this letter, in slavery. I can only say that there is not a man living who wishes more sincerely than I do, to see a plan adopted for the abolition of it – but there is only one proper and effectual mode by which it can be accomplished, & that is by Legislative authority: and this, as far as my suffrage will go, shall never be wanting.[8]

In 1786, Washington declared to John Mercer his intention to never “possess another slave by purchase.”[9] He reiterated his desire for the legislature to abolish slavery.

In a letter to Benjamin Lincoln, Washington expressed his “only unavoidable subject of regret” in life was to have owned slaves.[10] He tried to make them comfortable and to prepare a foundation for the children of his slaves for a destiny outside slavery. Upon his death, Washington did all he could to give them that destiny. In his last will and testament, Washington declared that upon the death of his wife, all the slaves he owned of his own right should be freed. He wished he could free them all sooner, but since he did not have the power to free the slaves his wife had brought into the marriage, he felt that freeing some and not others would break up families since some of his slaves had married his wife’s slaves. Washington also mandated that the freed slaves who could not take care of themselves die to infirmities, age, or other disabilities should be well clothed and fed by his heirs and that the freed slaves be taught to read, write, and perform a useful occupation. He declared that none of them should ever be sold, as he found this degrading. These duties of his will were then most pointedly and forcefully appointed to his executors to be carried out without evasion, neglect, or delay.[11]

Jefferson

Thomas Jefferson was also a slave holder but wished to see slavery abolished in America. He spoke out forcefully against slavery in his draft of the Declaration of Independence. In listing the offenses committed by King George, Jefferson wrote:

[H]e has waged cruel war against human nature itself, violating the most sacred rights of life & liberty in the persons of a distant people, who never offended him, captivating and carrying them into slavery in another hemisphere … determined to keep an open market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce.[12]

This clause was later redacted by the editing committee, but shows Jefferson’s contempt for slavery.

Jefferson worked hard to eradicate slavery, but he knew it could not be done all at once. The economy had come to depend on slavery, slaves, in general, did not have enough education or skills to take care of themselves if freed, and prejudice against blacks was so wide-spread that it was believed even if the Negros were freed, they could not live in the same society with whites. But Jefferson worked to overcome these obstacles. In 1778, he pushed through the Virginia legislature a bill that “stopped the evil of importation, leaving to future efforts [slavery’s] final eradication.”[13] Jefferson also prohibited slavery in the new Northwest Territories when he drafted the Northwest Ordinance in 1787.[14]

In Query XIV of his Notes on the State of Virginia, Jefferson notes a project to codify the common law of England. He proposed an alteration concerning slavery, requiring that all slaves born after the passing of the act, should be emancipated, educated, and upon reaching a certain age, be provided with arms, farming equipment, and other necessities and sent out to colonize such places as should seem proper.[15]

He elaborated further about why the freed slaves should not simply be incorporated into white society. Jefferson believed that there were too many deep-rooted prejudices in white society to make such incorporation successful and that the remembrance of the wrongs done them while enslaved might lead to violence against their former masters.[16]

In 1824, Jefferson laid out in a letter to Jared Sparks a detailed plan to emancipate all the slaves in America and to colonize them in Africa.[17] In this plan, those born to slaves would be emancipated by left with their mothers and taught an occupation until they should reach an age sufficient to allow them to be sent to a colony in Africa with the tools necessary to live in a free society there. The slave owners would be recompensed for their loss. This gradual emancipation would also give those societies that depended on slave labor time to change their economy away from dependency on slave labor.[18]

Conclusion

Although both Washington and Jefferson were slave owners, they were both very much opposed to slavery and wished to see it legally abolished. They also had concern for their slaves that their immediate emancipation might leave them unprotected and unprepared for life as a free person. They did what they could to forward the cause of freedom for all men and should be extolled for their efforts to abolish slavery.

_____________________________________________________________

[1] Winthrop Jordan, White Over Black: American Attitudes toward the Negro, 1550-1812. (Chapel Hill: University of North Carolina Press, 1968; New York: Norton, 1977) 429-481.

[2] U.S. Const. Art. I, § 9

[3] U.S. Const. Art. IV, § 2

[4] Catherine Drinker Bowen, Miracle at Philadelphia, (Back Bay Books 1966) 201-204

[5] George Washington Writings, (John Rhodehamel, ed., Literary Classics of the United States, Inc., 1997) 110

[6] Id. at 510

[7] Id. at 593

[8] Id. at 594

[9] Id. at 607

[10] Id. at 701-702

[11] Id. at 1023-1024

[12] Pauline Maier, American Scripture: Making the Declaration of Independence (Alfred A. Knopf 1997) 239

[13] Jefferson, Writings, (Merrill D. Peterson, ed., Literary Classics of the United States, Inc. 1984) 34

[14] Thomas Jefferson, Northwest Ordinance: An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, Art. 6 (July 13, 1787).

[15] Jefferson, Writings, (Merrill D. Peterson, ed., Literary Classics of the United States, Inc. 1984) 263-264

[16] Id.

[17] Id. at 1484-1487

[18] Id.

Posted in Constitution | Comments Off on Washington and Jefferson On Slavery

Donald Trump: Why the Military Can Not and Will Not Obey Your Order

(The views expressed here are my own and do not represent the views of any organization, office, or department of any government agency or any employer or other organization.)

Mr. Trump, in an interview on December 1, 2015, on Fox & Friends, stated that if he is elected President, he will order the military to kill family members of terrorists. He defended that position again during the CNN Republican Debate on December 15, 2015, at 9:36 pm ET. He has also taken the position that we must use torture methods against our enemies. Then, on the Fox News Debate on March 3, 2016 at 9:49 ET, Mr. Trump was asked what he would do if the military refused to obey his illegal order. He said, “They will not refuse.” Sir, you are wrong!

Unlike other countries, those of us who serve or have served as Officers in the US military, swore an oath that we take very seriously.[1][2] It is a sacred oath. We swore an oath to “support and defend the Constitution of the United States” and not an oath to support any person, leader, or Führer as is done in other countries. We love the Constitution and the principles it stands for, the freedoms it preserves for our families and people, and the liberty it protects. I personally read the Constitution through in its entirety every month and have done so for over 16 years. I read about its founding, creation, and legal opinions regarding its meaning. As military personnel, we need to know and love the Constitution.

Although the Constitution appoints the President as Commander-in-Chief, it does not grant him unlimited power. In fact, the Constitution itself allows the President to be impeached and removed for “high crimes and misdemeanors” showing that the President is not all-powerful and must remain within the limits set out by law. Anytime he violates the law, he is acting outside the authority of his office and thus outside his authority as Commander-in-Chief. Any order the President gives that violates the Constitution, our military officers and enlisted personnel are duty bound to disobey.

The Hague Convention is a treaty to which the United States is a party. It prohibits the targeting and killing of non-combatants. The United States is also a Party to the Geneva Conventions. They too prohibit torture and the killing of non-combatants. Additionally, they demand that prisoners, whether combatants or non-combatants, must be treated humanely.

Article VI, Clause 2 of the United States Constitution reads, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;” This clause means, Mr. Trump, that any order given by you as President, that is contrary to the Treaties we have made or the laws passed by Congress, is illegal and void. The military MUST disobey any such order.

The world learned during the Nuremberg trials that “I was just following orders” is no defense to committing criminal acts. It will not become so now. If we were to start torturing prisoners and killing non-combatants, we would lose our legal and moral high ground. We would lack any moral or legal legitimacy to complain when others tortured our soldiers or killed their families or our citizens. By making the families of ISIS terrorists targets for killing, you give legitimacy to ISIS in the targeting of the families of our military forces.

I understand the frustration of our troops. I have seen it over and over again as I gave briefings on the Law of Armed Conflict. They would ask, “Why should we obey LOAC when the enemy does not?” The answer is simple. We are not them! We are Americans! We have higher moral principles. We can still accomplish our mission and win this conflict while maintaining the very moral foundations of who we are and without giving in to the anger and frustrations put upon us by the enemy. To say otherwise is to deny the greatness of our Country and our military forces. We act according to laws, morals, and principles. We refuse to allow others to force us to act contrary to those laws, morals, and principles. If we succumb to the enemy’s methods and forsake our principles and morals, we give them the victory over us! That cannot be allowed to happen!

By heeding your call to kill the families of terrorists and to torture our prisoners (and they are prisoners, whether you call them detainees, prisoners of war, unlawful combatants, etc. – a rose is a rose even if called by another name), then we accept what was done in Germany and Japan during World War II. We must then overturn the verdicts at Nuremberg and Tokyo and announce to the world that we were wrong and those evil men were right. I for one will not stand for that.

Should you become President, sir, our military officers and troops must disobey any illegal order you give to kill non-combatants or to torture prisoners. Our Officers need to maintain the integrity they have had in the past to refuse to obey illegal orders and have the courage to resign, as others before them have done, when they disagreed with the orders they were given. Once the military agrees to follow illegal orders of the type you are proposing, our Republic is lost, the Constitution destroyed, and our country ripe for takeover by a military junta or coup. That must never happen. The course you propose sir, is detrimental to the very existence of our Nation.

————————-

[1] The Officer Oath is as follows: “I, (state your name), having been appointed a (rank) in the United States (branch of service), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter. So help me God”

[2] Enlisted troops take a similar oath. It reads, “I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.” Although this oath requires that they obey the orders of the President of the United States, it limits that duty only to obey those orders that are issued according to regulations and the UCMJ. The UCMJ prohibits our troops from complying with unlawful orders such as participating in torture or killing non-combatants.

 

 

Posted in Constitution | Comments Off on Donald Trump: Why the Military Can Not and Will Not Obey Your Order

Ted Cruz is Eligible to be President

Many have been deceived by Mr. Trump’s false allegations that Ted Cruz is not eligible to be President because he is not a “natural born Citizen.” Mr. Trump has even suggested that Mr. Cruz is an originalist except when it does not suit him, as in the case of being a natural-born citizen. Don’t be deceived by these falsehoods.

Article 2, Section 1, Clause 5 if the United States Constitution clearly states, “No Person except a natural born Citizen, …, shall be eligible to the Office of President.” But, as it does with so many other things, the Constitution does not define what a “natural born Citizen” is. It left it up to the Congress to pass laws and to define a natural born citizen.

The Constitution states that the Congress shall have power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Article 1, Section 8, Clause 18.

The Constitution goes on further to state, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …, shall be the supreme Law of the Land;”.

It is clear from the text of the Constitution, that Congress has the authority to define the meaning of “natural born Citizen.”

The fact that the Founding Fathers believed that Congress had the authority to define what a “natural born Citizen” was, is seen in the first nationalization statute enacted by the First Congress.

In March 1790, the First Congress of the United States passed the first naturalization law. In it, Congress declared that “the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” 1 Stat. 104, Ch. 3, § 1 (1790).

So who were these members of Congress who defined natural born Citizens to include those children of citizens of the United States who are born outside the territorial limits of the US? None other than many of the Founding Fathers who were present at the Constitutional Convention and adopted that specific wording, to include James Madison, known as the Father of the Constitution; and it was signed into law by none other than George Washington, the President of the United States at the time and the former President of the Constitutional Convention!

Just a few years later, in 1795, Congress changed the naturalization act and removed the term “natural born” for children of US citizens when those children were born outside the territory of the United States. Again, many members of Congress at the time had been members of the Constitutional Convention and the new law was signed by George Washington as President of the United States. These acts by the Founding Fathers support the conclusion that Congress has the authority to determine the qualifications necessary to be considered a “natural born citizen” and that they considered, for at least the first few years under the Constitution, that persons born outside of the United States to US citizen parents, were natural born citizens.

Congress has declared that Mr. Cruz is a citizen of the United States at birth, and thus a natural born citizen. (If one wishes to make a distinction between “born” and “natural born” a whole new can of worms can be opened, based on the wild imaginations of fancy of many liberal pundits. For example, is someone born by C-Section not to be considered “natural born” because birth by C-Section is not the “natural” way to give birth to a child?) Congress currently defines a person as a citizen at birth if that person has one parent “who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years;” 8 USC § 1401(g). Mr. Cruz’s mother met those requirements when he was born. Therefore, Mr. Cruz satisfies the requirement of being a natural born citizen and thus is eligible to be President of the United States.

It has been the understanding of scholars for decades, if not since the Founding Era, that someone born outside of the United States, but to an American parent, is a natural born citizen of the United States and thus eligible to be President. George Romney, father of Mitt Romney, was born in Mexico to American parents and ran for President in 1968. John McCain who was born in Panama to American parents ran for President in 2008.

Mr. Cruz is eligible to be President of the United States. Whether you agree with his politics or not, your decision on who to vote for should not be based on the false argument that he is not eligible for the office. Do not fall for Mr. Trump’s trumped up allegations.

Posted in Constitution | Comments Off on Ted Cruz is Eligible to be President

Arming of Recruiters

We are all deeply saddened by the recent shootings and killing of military recruiters in Chattanooga. In the wake of the killings, it has been asked why are recruiters (and military personnel in general) not allowed to carry firearms in the United States?

In answer to this question, we have been given a very weak response from our military leaders; a response that is not only weak, but flat out wrong. They have responded saying that the Posse Comitatus Act (18 U.S.C. 1385) prohibits them from arming military personnel in the United States.

A “Posse Comitatus” is “a body of persons that a peace officer of a county is empowered to call upon for assistance in preserving the peace, making arrests, and serving writs.”

The Posse Comitatus Act is short and simple. It states, “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”

The most glaring error in the thinking of military leaders that this Act prohibits them from arming military personnel, or allowing them to carry their personal firearms in the United States is that the Act does not apply to all military personnel. It only applies to the Army and Air Force. The recruiting station in Chattanooga was manned with Sailors and Marines who are not covered by the Act! The act was last updated in 1994 and Congress could have included the Navy and Marine Corps at that time (or at any time in our Nation’s history) if Congress wanted the Act to apply to all military personnel.

A second flaw in the reasoning that the Posse Comitatus Act prohibits the arming of military personnel in the United States, is that the Act only prohibits the use of Soldiers and Airmen “to execute the laws.” Nothing in the Act prohibits military personnel from possessing firearms on duty and in uniform for the purposes of self-defense or to defend the lives of others. The Act prohibits using Soldiers and Airmen to effectuate arrests, conduct traffic control, conduct searches and seizures of civilians, or otherwise execute of enforce the laws, but it certainly does not prohibit military personnel from possessing firearms while in uniform and on duty for the purpose of self-defense and to defend others.

It was wrong to disarm our military personnel in the first place. With our current fight against terrorism where there are no battle lines, with terrorist cells now present in the United States, and after attacks like the ones in Chattanooga and Fort Hood, it is past time that we correct this wrong and allow our military personnel throughout the country to carry firearms while on duty and in uniform.

Posted in Constitution | Comments Off on Arming of Recruiters

2d Amendment – Founding Fathers

The Founding Fathers and the Second Amendment

  1. 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.

  1. 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.

 

  1. 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?

 

  1. 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]

 

  1. 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.

 

  1. “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.

 

  1. The Founders Speak

 

  1. 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]

  1. 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.

Posted in Constitution | Tagged , , , , , , , | Comments Off on 2d Amendment – Founding Fathers

Powers of Attorney

A Power of Attorney (POA) can be a very powerful tool. During my time in the military, we frequently had our deploying Airmen use this tool so that their spouse or trusted friend could take care of their affairs while the Airmen were deployed to hostile areas around the globe.

A POA can be either a General POA or a Special POA. A General POA allows a person to do almost anything on behalf of another person that the person granting the POA could do for themselves. A Special POA allows the person with the POA to do a specific act for the person granting the POA, such as buy a home, a car, or care for one’s children.

When given a POA, you will need to make copies of the document. Present it to the bank or other institution for which you are trying to conduct business on behalf of the individual who gave you the POA. The business or entity may decide to accept or reject the POA. If they accept it, make certain they retain a copy of the POA and that you always retain the original. If they reject the POA, ask them what documentation they require to act on the other person’s behalf and, if necessary, contact an attorney to assist you in getting the proper documentation prepared.

A POA is a powerful tool and remains one of the key documents in a fully-developed Estate Plan.

Posted in Estate Planning | Comments Off on Powers of Attorney

Blended Families

“Well of course my spouse gets everything! I don’t need a will.” Not so fast!

It is not automatic that you get everything should your spouse die before you. If your spouse was married before and has children from that previous marriage, then those children may have a rights to some of your spouse’s estate. In Utah, if one spouse dies who was married previously and has children from the prior marriage, then the surviving current spouse is only entitled to $75,000 plus 1/2 of the remaining assets. Everything else goes to the children from the previous marriage (any children from the current marriage would get nothing and instead inherit through the surviving spouse when that person passes away).

For example, let’s say Jack and Jill get married. Jill was married before and has 2 children from her previous marriage. Jack and Jill have one more child together. Jack and Jill own the family home as joint-tenants. The home is worth $200,000.00. Jill also has another $125,000.00 in personal property (car, inheritance from parents, jewelry, etc. It can add up fast!).

Jill is in a car accident and dies without having a will. The value of her estate at the time of her death is $325,000.00. Jack gets the home without going through probate because it was owned as joint-tenants. However, just as the entire worth of the home was added to the value of Jill’s estate, the entire worth of the home is counted as an advance to Jack of his inheritance. So Jack is entitled to $75,000 + 1/2 of $250,000 (the remaining balance of the estate’s value). That works out to $75,000 + $125,000 for a total of $200,000. But that is not how much Jack gets. Because the home is valued at $200,000, an amount equal to his share of Jill’s estate, Jack gets the home and nothing else. The $125,000 in additional personal property all goes to Jill’s children from her previous marriage.

Additionally, because no will was made, if Jill’s children from her previous marriage are still minors, their father now gets custody of the children and Jack may have to give the wife’s ex all of her personal property because it all belongs to those children and he has custody of them. The child from Jack and Jill’s current marriage inherits nothing.

This situation could all have been avoided if Jill had a simple will or even a trust. A simple will or a living trust could have let Jill determine how much each of her children would inherit in the event of her death. It could also designate who would control that property until the children reached the age of majority.

No blended family should ever be without a will or living trust. No matter how little or how much property one has, a will or living trust is a basic estate planning document everyone should have.

The information presented here is not meant to be legal advice. Every situation is different and unique. You should consult directly with an attorney to determine your estate planning needs. Review of this material does not create an attorney-client relationship with The Law Firm of Darrin K. Johns, PC, or with any attorney or employee thereof.

Posted in Estate Planning | Tagged , , , , | Comments Off on Blended Families

Federalism

One of the best, and perhaps most forgotten features, of The United States Constitution is that it provides for a Federal system of government. A Federal system is one in which there are two separate governments, each with their own areas of responsibility. For example, we have the United States Government which the people of the United States formed and gave authority to handle the international affairs of all the States in the Union and to regulate the interactions between the individual States in the Union. Then each State has its own Government formed by the people in that State and given authority to handle the internal or domestic affairs of the State, for example to handle criminal acts by its citizens, marriage laws, labor laws, etc.

When one reads the Constitution before the Bill of Rights or other amendments were added, one is hard-pressed to find any reference to the National Government (or as commonly referred to today, the Federal Government) exercising direct authority over the citizenry. The Federal Government was not even permitted to tax individuals directly, but rather had to tax the States who could then choose to tax their citizens. The nature of the Federal Government as designed by the Constitution is why many of the Founding Fathers, including James Madison who has become known as the Father of the Constitution, believed a Bill of Rights was unnecessary. The Constitution did not grant the new Federal Government authority to take actions against citizens directly, that authority was reserved to the States, so why the need to have a Bill of Rights?

This Federal system of Government allowed for experimentation among the several States with economic and social theories. For example, one state could set different wage laws or different laws regarding marriage or punishments for crimes than other states would set. This was the intent. It was never intended to have all laws the same throughout the nation.

People often forget this principal when they support ideas such as a National law to define marriage. As the Federal Government was not established to regulate conduct of individuals, laws regarding marriage and its definition should be created by State Governments. If a person does not like the laws of the State where they live, they are free to use the political process to change the law or they may leave the State. That is what the Founders intended with their comparison of the States to laboratories for experimentation. Not only does this process comport with the Federalist aspect of our Constitution, it promotes greater political activity at the local level where political influence of individual citizens is greatest.

Frightened that by providing a Bill of Rights might make some assume (as unfortunately so many do today) that the Federal Government had power over individual citizens to a greater extent than what was intended, the Founding Fathers passed the 9th and 10th Amendments as part of the Bill of Rights to ensure people understood that the Federal Government was one of very limited powers.

The Bill of Rights deal with the rights individuals have when dealing with the Federal Government. Some have tried to make the Second Amendment a right that belongs to the States in relation to the National Government, but such an argument is fallacious and made by those who either intend to deceive or have no understanding of history. Every right listed in the Bill of Rights deals with limiting the power of the Federal government against individual citizens. The 9th and 10th Amendments make it very clear that any power not delegated to the Federal Government remains with the States or the people in their status as individual citizens. (Note that the Tenth Amendment refers to “powers not delegated to the United States … are reserved to the States respectively, or to the people.” The Founders knew that there was a difference between the people collectively as represented by the “States” and all people in their individual capacity, as represented by the term “people.” It would make no sense for the term “people” to mean the States in the Second Amendment and the same term to mean individual citizens in the Tenth Amendment.) Therefore, if the Federal Government is not specifically delegated the power under the Constitution, then, no matter how good that power may be, it resides with the State, or with the people.

That leads me to another topic which I will address in a subsequent posting. That is the topic of “Delegated Powers.”

 

The views expressed on this page are not to be considered advertising material. They represent my personal views and not the view of any other person or organization. The information presented here is not meant to be legal advice. Every situation is different and unique. You should consult directly with an attorney to determine your estate planning needs. Review of this material does not create an attorney-client relationship with The Law Firm of Darrin K. Johns, PC, or with any attorney or employee thereof.

Posted in Constitution | Tagged , , | Comments Off on Federalism