The Framers Clearly Intended That The Second Amendment Guarantee An Individual Right To Keep And Bear Arms.
?The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense.? Kasler v. Lockyer, 23 Cal.4th 472, 505 (2000) (Brown, J., concurring). ?[T]he history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.? Emerson, 270 F.3d at 260.
Ah, the Emerson case
. A cite to that case somewhere was almost inevitable. The basic story is simple: an ordinary non-criminal individual went through a messy divorce; his wife alleged that he made threats against her; a boilerplate domestic-violence restraining order was issued, barring Emerson from possessing firearms; he then possessed one (if I recall correctly, he had a collection) and was charged. There's more information on Lautenberg
, the law responsible for this restriction (and named after the politician responsible for it), over at Gun Law News
I don't have as much information on Emerson online as I should. I distinctly remember following that case and writing about it, but the database only has a few brief articles about it. I'll come back to that case later, so look for more analysis in the near future -- as soon as I'm done with the current backlog of Parker documents.
After the Constitution was submitted for ratification in 1787, its Antifederalist opponents charged that the vast powers granted the federal government over military affairs would allow Congress to destroy the militia through neglect or deliberate action, replacing it with a standing army designed to oppress the people. John Dewitt captured a key Anti-federalist fear when he predicted that, using its authority over the militia and its power to ?To raise and support Armies,? U.S. Const. art. I, sec. 8, cl. 12, Congress ?may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties?.? The Antifederalist Papers, 75 (M. Borden, ed. 1965).
The attentive will note that this is exactly what happened. The standing army maintained by the Federal government has taken over the complete role of national defense from state forces and the militia generally. Even the National Guard, often described as a state militia by those who favor the collective-rights interpertation of the 2nd, is subject to Federal control. The size and power of the United States military is exactly what the Founders feared would occur, and exactly what they wrote the 2nd Amendment to counter. No matter how strong and powerful the standing army, the goverment has no power to disarm the people, and thus the militia can be called up in extremis
to oppose that army.
There are many who would claim that victory in such a battle would be impossible. That's debatable, but doesn't address the main point. That there is
a militia, even a vestigial one, backed by private arms, means that resistance to a tyrranical government remains possible. That is what the Founders sought to ensure: that the government they had created would never be able to rule by force alone. Any government that sought to do so would first need to disarm the people, either repealing or simply ignoring one of the nation's foundational laws, and the very attempt to do so would be a warning of nefarious intent.
The Founders sought nothing less than to ensure that a second
revolution would be possible, should the central government they sought to create turn against the people. They had fought their own revolution just a few years before, a revolution that was started by a British attempt to confiscate private arms from the people. Is it so difficult to believe that they would seek to ensure such a thing would be possible a second time, should it become necessary?
The responses to such fears offered in the Federalist Papers show two things: (1) the Federalists, like the Anti-federalists, viewed the militia as consisting of all male citizens capable of bearing arms; and (2) the Federalists believed that widespread individual ownership of firearms would prevent the militia from being overpowered by any standing army, should the federal government ever become oppressive. Thus, in Federalist 29, Hamilton writes:
[I]f 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 little if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens. The Federalist No. 29, at 145 (Alexander Hamilton) (G. Carey, J. McClellan eds. 1990).
In Federalist 46, Madison echoed Hamilton?s argument by pointing to ?the advantage of being armed, which the Americans possess over the people of almost every other nation,? and contrasting this situation with that of Europe, where ?the governments are afraid to trust the people with arms.? The Federalist No. 46, 244 (James Madison) (G. Carey, J. McClellan eds. 1990). In America, any threat represented by a standing army would find its counterweight in ?a militia amounting to near half a million of citizens with arms in their hands?? Id.
We need to do a little math to get proper perspective on this number. Madison is suggesting that a tyranical government would be opposed by an armed militia of half a million citizens. That's a fairly big number -- if Al Qaeda had half a million armed members, we would be in real trouble. And the current strength of the active-duty US Army (as of 2004
) is about 500K, with National Guard and Reserve troops adding another 700K. But to truly understand what Madison is suggesting we have to place that number in context.
In 1790, the year of the first Federal Census following the ratification of the Constitution, the population of the United States was 3,929,214
. (Official but harder to read table
) So Madison was suggesting that the militia which would take up arms in response to government oppression constituted a full 1/8th of the population. In modern terms (assuming a current population of approximately 300 million), that's 37 million people
Those numbers make it clear that the 2nd Amendment protects a near-universal
right even if it is assumed that only militia members have the right to keep and bear arms.
Unwilling to accept the Federalists? assurance that the proposed Constitution contained no power that would allow the federal government to oppress the people, the Anti-federalists continued to oppose its adoption without, at a minimum, specific protections for individual rights. Due to their influence, five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All five demanded protection for the right to bear arms; and all five made plain that the right to be protected belonged to individuals, not state governments. New Hampshire?s proposal provided that ?Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion,? language that unmistakably protects individual rights quite apart from any militia service. 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed., 1836). Virginia?s proposal, which served as a model for Madison?s draft, provided ?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.? 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 658 (2 ed., nd 1836). Thus, the language proposed by Virginia sets out the individual right and the preference for a militia in two unambiguously independent phrases, while at the same time making clear that the ?militia? and the ?people? are one and the same.
Well, not quite the same. The people
have the right to keep and bear arms, that a militia
may be formed from the body of the people at need. It should be understood that the right belongs to the people (a universal protection) even though the militia is necessarily a more limited subset of the people. But we should not lose sight of the fact that a "more limited subset of the people" is approximately 1of every 8 people expected to bear arms in defense of their nation.
Having secured the Constitution?s ratification, the Federalists were nonetheless mindful of the reservations with which the Constitution was ratified and the popular desire for a written declaration of rights. In his first inaugural address, President Washington signaled that a Bill of Rights might well be desirable, and would pose no threat to the young Constitution. Emerson, 270 F.3d at 244 (quoting President Washington, Inaugural Address, April 30, 1789) (citation omitted).
Accordingly, on June 8, 1789, then-Congressman James Madison proposed several amendments to the Constitution ? including one that provided in pertinent part that ?The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country . . . .? That the amendment was designed to secure a personal right of the citizen rather than a collective right of the states is clear from Madison?s notes for the speech introducing the amendments, ?They [the proposed amendments] relate first to private rights,? 12 Papers of James Madison 193-194 (C. Hobson et al., eds. 1979), and his initial proposal to place the amendment alongside other individual rights already protected by the Constitution in Article I, sec. 9 ? following the habeas corpus privilege and the proscriptions against bills of attainder and ex post facto laws together with Madison?s own proposed protections for speech, press, and assembly. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 169 (N. Cogan, ed., 1997).
It is worth noting here that the Bill of Rights does clearly and unequivocally deal with private, individual
, rights. With the exception of the 9th and 10th Amendments, attempting to construe the rights protected by the Bill of Rights to a collective entity simply doesn't make sense.
Madison?s colleagues clearly understood the amendment to protect an individual right. As Rep. Fisher Ames of Massachusetts described Madison?s proposals, ?The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.? Letter from Fisher Ames to George Richards Minot (June 12, 1789) (excerpt reprinted in David Young, The Origin of the Second Amendment 668 (2nd ed. 1995)). The revised text of the amendment, as ratified, differs from Madison?s draft (among other ways) by moving the hortatory language about the militia to a prefatory clause, or preamble: ?A well regulated Militia, being necessary to the security of a free State . . . .?
For those not familiar with the language of the time, the right of conscience was language usually used for describing religious freedom. That is a clearly individual right. The right to change the government is more problematic; the right to vote is individual but the right to change the government is a collective result of those individual rights.
At the time no tension appeared between the preamble and the operative clause protecting the right of the people to keep and bear arms. Its wording ?made perfect sense to the Framers: believing that a militia (composed of the entire people possessed of their individually owned arms) was necessary for the protection of a free state, they guaranteed the people's right to possess those arms." Kates, supra n.6, 82 Mich. L. Rev. at 217-18.
Indeed, throughout the entire legislative record, from proposal of the amendment through ratification, no assertion of a ?collective rights? view can be found. ?If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.? Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 83 (1984).
While obviously records are not complete, we have a large number of papers dating from those days. It strains credibility to suppose that not a single paper suggesting a collective-rights view would have survived when so many papers denoting the individual rights view are available today. This is not a debate that occurs in a vacuum, but in the full context of our historical knowledge.
Every notable constitutional commentator of the 19th Century understood the Second Amendment secures individual rights. Supreme Court Justice Joseph Story called the right protected by the amendment ?a right of the citizens? and noted that ?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 . . . .? Story, A Familiar Exposition of the Constitution of the United States, 264-265 (1842). St. George Tucker, the earliest prominent commentator on the Constitution, regarded the Second Amendment right as equivalent to Blackstone's ?right of the subject,? protecting ?The right of self defence [which] is the first law of nature.? 1 St. George Tucker, Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, 143, 300 (1803). William Rawle, in his 1829 treatise, also affirmed the individual rights view, declaring that the amendment?s wording was broad enough to protect the right from state infringement as well as federal:
No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle, A View of the Constitution of the United States of America 125-26 (Da Capo Press 1970) (2nd ed. 1829).
The ?collective rights? model of the Second Amendment is clearly a revisionist phenomenon. The Framers, and all prominent scholars for whom the Framers were within living memory, envisioned the Second Amendment as securing an individual right.
What this brief does not touch on is the original reason for this "revisionist phenomenon". To put it bluntly -- following the Civil War, if a black citizen was to be granted the full rights and responsibilities of an American, certain states were not willing to allow the right to keep and bear arms to be one of those rights. Instead, they passed laws restricting the right to arms generally, and then neglected to enforce those laws against individuals they approved of. For more information on this, see The Racist Roots of Gun Control
, by fellow blogger and author Clayton Cramer
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