Right to Bear Arms (II)

2012-08-27 20:32:06

The words that compose the Second Amendment trace a lineage back through early American governance. The issues raised in the amendment were discussed not only in the First Congress, but in the Constitutional Convention of 1787, and in state governments, as they arose in colonial society, and from the British heritage.

The British Heritage

The British Parliament enacted the British Bill of Rights, also known as the Declaration of Rights, in 1689, in which various grievances against King James II were listed, including that he ‘‘did endeavor to subvert and extirpate the Protestant Religion and the Laws and Liberties of this Kingdom.... By causing several good Subjects, being Protestants, to be disarmed at the same Time when Papists [Catholics] were both armed and employed contrary to Law.’’ The right defined in Article VII of this document was ‘‘That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law.’’ This provision from the British Bill of Rights is that cited as the forerunner of America’s Second Amendment, although there is no direct evidence that America’s founders treated it as the source of what became the Second Amendment.

The Colonial Experience

The mistrust of standing armies, partly inherited from bitter European experiences, was a common sentiment in America during the colonial period, and was directly related to the bearing of arms by citizens in militias, a practice that took on greater significance as the colonies approached the Revolution when citizen-soldiers became synonymous with the revolutionary spirit. The Virginia Declaration of Rights, for example, written in 1776, said that ‘‘standing armies, in time of peace, should be avoided, as dangerous to liberty.’’

Militias were defined as adult males of fighting age (roughly between eighteen and forty-five) who were obligated to enroll with the government for military service. They received limited training, served for a few months out of the year, were only covered partially by military law, and were generally under state command. By comparison, professional soldiers were usually volunteers who enlisted for several years, received extensive military training and pay, served even in peacetime, were under federal control and full military discipline.

From colonial times on, militia forces were composed of two parts: the general or unorganized militias, and the organized or select militias. The first was defined as the entire body of eligible males that participated in the minimum required service. The select militias were volunteer units that organized and trained more rigorously, often with their own equipment, uniforms, and unit loyalty. These more professionalized militias were subject to periodic criticism from those who feared that they bore too close a resemblance to a professional army.

American mistrust of standing armies was magnified by the behavior of British troops on American soil. American outrage over the excesses of British troops was expressed in the Declaration of Independence of 1776 where Thomas Jefferson complained that ‘‘He [the King] 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.’’ The Declaration also complained that the British were ‘‘quartering large Bodies of Armed Troops among us’’ and ‘‘protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of these States.’’ Not surprisingly, the British also took any and every opportunity to seize American weapons and ammunition.

As a consequence, America fought the Revolutionary War with a combination of the Continental Army, which served as the core fighting unit, and state militias. While the reliance on militias was politically satisfying, it proved to be an administrative and military nightmare. State detachments could not be easily combined into larger fighting units; soldiers could not be relied on to serve for extended periods, and desertions were common; militia detachments would often enter the army encampment, consume food and supplies, and then leave before battle; officers were elected, based on popularity rather than experience or training; discipline and uniformity were almost nonexistent. Owing to the militias’ popularity, Commander-in-Chief George Washington defended the militia in public, but made his real sentiments brutally clear in correspondence with Congress, in which he complained bitterly about the militias’ lack of discipline and skill, unwillingness to fight, and general unreliability.

Despite the militia handicap, America won its independence, owing to the size of its force (over 400,000 men participated during the course of the war), the protracted nature of the conflict, the adoption of tactics appropriate to American terrain and the army’s irregular nature, the assistance of the French, British difficulties related to distance and supply, and the American ‘‘home court advantage.’’ This latter fact was particularly important to the militias, which generally fought best when they were fighting near their homes.

The Constitution

The first constitution, the Articles of Confederation (1777–1789), reflected suspicion of standing armies, and of a strong national government. The articles gave most power to the states, including the primary burden of national defense. The articles stipulated that ‘‘every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred’’ (Article VI) and that Congress’s military powers could only be exercised by a vote of nine of thirteen states (Article IX). No specific provision was made for a national standing army.

These and other shortcomings of the articles eventually led to the Federal Constitutional Convention of 1787, and the adoption of the modern Constitution. The military issue was resolved in the new Constitution by recognition of both the militia and a standing army. In Article I, Section 8, Congress was given the power to ‘‘raise and support armies,’’ ‘‘provide and maintain a Navy,’’ and to finance and regulate both. In an important departure from the Articles, Congress would now have key authority over the state militias, as it could ‘‘provide for calling forth the Militia’’ in order ‘‘to execute the Laws of the Union, suppress Insurrections and repel Invasions’’; and it could ‘‘provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.’’ The states retained only limited control, as the Constitution reserved ‘‘to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress’’ (Article I, Section 8). In addition, the president would serve as commander-in-chief of the military forces, including the militia (Article II, Section 2).

Defenders of the new Constitution sought to calm fears and counter criticisms in the Federalist Papers. In Federalist No. 24, Alexander Hamilton, who served as George Washington’s aide during the Revolution, argued that it would be a mistake to restrict or ban standing armies in times of peace, citing constant threats the young nation faced along its vast frontiers and the necessity of allowing Congress appropriate latitude to meet variable but persistent military threats. In No. 25, Hamilton argued forcefully that standing armies were naturally superior on the battlefield, the Revolutionary War notwithstanding, and were similarly superior in dealing with civil unrest (No. 28). Further, Hamilton noted in No. 29 that the federal government must have the power to impose uniformity on the militias in order for them to be effective and efficient. Both he and Madison dismissed the fear that a standing army would deprive the states of their sovereignty, or citizens of their liberties. To critics who predicted that a standing army would produce the downfall of state governments, Madison in No. 46 computed that the United States could at the time raise at best an army of 30,000 men—a force that could be opposed by state militias totaling a half-million men.

The Federalist–Anti-Federalist Debate and the Bill of Rights

No dispute during America’s formative years was more important than that between the Federalists, who embraced a stronger national government as established in the new Constitution, and the Anti- Federalists, who opposed the new Constitution, and who supported a more decentralized governing system. This debate was the root of concerns that gave rise to the Second Amendment.

The adoption of the Constitution enshrined within it the dual militia–standing army military system, but it did not resolve the nagging question of federalism; that is, the new Constitution not only created a national standing army, but gave the federal government vast new power over the militias. Anti-Federalists were extremely concerned that this power might be used not only to undercut the effectiveness and independence of state militias (for example, by federal government refusal to organize, arm or train them, although Federalists asserted that the states would retain such powers if the federal government failed to act), but to gut state power entirely.

These fears found voice in several state ratifying conventions, most particularly that of Virginia, where Anti-Federalists led by Patrick Henry sought assurance that Virginia, and other states, could arm their own militias if the federal government failed to do so. George Mason pressed the Virginia convention to obtain a specific guarantee of such a state right. This, in a nutshell, was the purpose of what became the Second Amendment. The Virginia convention passed this wording when it ratified the Constitution:

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 defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

Following Virginia’s lead, four other states—New Hampshire, New York, North Carolina, and Rhode Island—adopted similar resolutions to obtain greater protections for the continued existence and viability of state militias. The central question giving rise to the Second Amendment was whether congressional authority over state militias could surpass that of the state governments and whether this new federal military power (over both the militia and the federalcontrolled professional army) might be used to limit state sovereignty and power. In particular, the southern states were anxious to make sure that they would have the ability to mobilize adequately armed state militias to suppress slave revolts, since they were suspicious that a national government dominated by northern interests would not be willing to commit federal troops and supplies to keep African Americans in the bondage of slavery.

The pressure for a Bill of Rights to limit federal authority and retain states rights escalated, and on June 8, 1789, Madison introduced in the House of Representatives of the First Congress a proposed list of rights to be added to the Constitution. Drawn heavily from Virginia’s 1776 Declaration of Rights, the list included the wording below, originally to be inserted in Article 1, Section 9 (a section of the Constitution that lists several limits on the federal government, and that followed the section dealing with military matters):

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: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

As reported out of House committee on July 28, the amendment said:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

On August 24, the House passed this wording:

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

This and the other amendments then went to the Senate, where the final wording of what became the Second Amendment emerged:

A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

The debate in the First Congress surrounding the Second Amendment dealt with a few familiar questions, all dealing with military matters: whether the amendment wording should codify the right of conscientious objectors to opt out of military service for religious reasons; the relationship among militias, standing armies, and liberty; the need to subordinate the military to civilian authority; and the military unreliability of the militia as compared with a professional army. To judge by the brief debate about and modest wording changes in the amendment’s versions quoted above, the basic sentiment was held throughout— that citizens have a constitutionally protected right to serve in militias when called into service by, and in defense of, state and country.

Thus, the Second Amendment is founded on federalism, balancing powers between the federal government and the states, and on military necessity, developing a political compromise between politically popular and state-controlled militias, and a politically unpopular but militarily necessary national professional army. Missing from this extended history is any connection between the Second Amendment and any personal, private, or individual use of firearms, for purposes including hunting, sporting, recreation, or even personal protection, which was already covered by the eighteenth century in common law. The Second Amendment’s purpose, like the Bill of Rights as a whole, was to place limits on the federal government, and strike a balance between national power and state power. Its only connection to what might be termed an ‘‘individual right’’ was that individuals would need to retain the ability to fulfill the civic obligation to respond to a call from the government.

The Decline of the Old Militia System

Soon after the ratification of the Bill of Rights in 1791, Congress moved ahead to establish rules and procedures governing the militias in the Uniform Militia Act of 1792, which defined the nation’s militia as ‘‘every free able-bodied white male citizen of the respective states’’ between the ages of eighteen and forty-five. Militiamen were legally obligated in the act to provide their own weapons, ammunition, and accoutrements. Even though the Constitution said that Congress bore responsibility for arming the militia (Article I, Section 8), Madison noted that ‘‘arming’’ did not necessarily mean that the federal government had to literally furnish arms. The government could, of course, provide arms if it chose to do so, and from the mid-nineteenth century on, it invariably did.

Despite these efforts, by the close of the eighteenth century it was clear that the militias were impractical, if not obsolete. Almost without exception, the states failed to implement the terms of the Uniform Militia Act. The system of fines imposed to impel men to arm and uniform themselves, and to ensure that they showed up for drill, failed to achieve these objectives, and were almost never enforced.

The reputation of the citizen militias suffered a final, crippling blow as the result of their terrible performance in the War of 1812. Even as a supplement to the regular army, the general militia system was considered useless. Neither the federal government nor the states took much interest in continuing universal militia training and service, although the social structure of the militia system continued for decades. Local militias continued to gather for ‘‘musters’’ throughout much of the nineteenth century, but such gatherings were primarily social occasions often held at local taverns. Instead, the government relied on its professional army and elite corps of volunteers, the select or ‘‘organized’’ militias.

No significant legal changes occurred until 1903, when Congress passed the Militia Act, which legally separated the ‘‘organized militia,’’ now formally dubbed the National Guard, from the ‘‘reserve militia,’’ also called the unorganized militia, even though the unorganized militia had by now been discarded as a viable military entity, as defense needs could no longer be given over to ill-trained amateurs. The balance of the act provided for federal arming, training, and drilling of the National Guard. In 1916, Congress passed the National Defense Act, which mandated that the National Guard would be organized in the same method as the ‘‘Regular Army.’’ It also placed state Guards under federal guidelines.

Gaps in modern military needs have been met by the selective service system—the military draft—rather than activation of the old-style militias. This history and interpretation of militias is described and ratified in the Supreme Court cases of Maryland v. United States and Perpich v. Department of Defense (1990).

In sum, the possession of firearms referred to in the Second Amendment comes into play only at such time as (1) the unorganized militia is activated by a state or the federal government, a practice effectively abandoned before the Civil War, and (2) the government fails to provide weapons for that force.

Supreme Court Rulings

The Second Amendment has generated relatively little constitutional law. In a few instances, however, the Supreme Court has ruled directly on the meaning of this amendment. In the first case, United States v. Cruikshank (1876), Cruikshank and two other defendants were charged with thirty-two counts of depriving blacks of their constitutional rights, including two counts claiming that the defendants had deprived blacks of firearms possession, in violation of the Force Act of 1870. The Court in this case established two principles which it and lower federal courts have consistently upheld: first, that the Second Amendment poses no obstacle to at least some regulation of firearms; and second, that the Second Amendment is not ‘‘incorporated,’’ meaning that it pertains only to federal power, not state power. Admittedly, the Supreme Court did not begin to incorporate parts of the first ten amendments (that is, applying them to the states through the Fourteenth Amendment) until 1897. But the Court has never accepted the idea of incorporating the entire Bill of Rights, and it has never incorporated the Second Amendment, despite numerous opportunities to do so.

Ten years later, the court ruled in Presser v. Illinois (1886) that an Illinois law that barred paramilitary organizations from drilling or parading in cities or towns without a license from the governor was constitutional, and did not violate the Second Amendment. Herman Presser challenged the law after he was arrested for marching and drilling his armed fringe group through Chicago streets. In upholding the Illinois law, the Court reaffirmed that the Second Amendment did not apply to the states, citing Cruikshank. Justice Woods explained:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserved militia of the United States as well as of the States; and, in view of this prerogative ... the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

The court denied that Presser and his associates had a right to organize with others as a self-proclaimed and armed military organization, since such activity ‘‘is not an attribute of national Citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law.’’ To deny the government the power to define and regulate militias would, according to the court, ‘‘be to deny the right of the State to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine [pillaging].’’ Thus, the Presser case confirmed the understanding that the right to bear arms came into play only in connection with the formation and conduct of the militia, as formed and regulated by the government. The court emphatically rejected the idea that citizens could create their own militias, much less that the Second Amendment protected citizens’ rights to own weapons for their own purposes. In 1894, the Supreme Court ruled in Miller v. Texas (1894) that a Texas law ‘‘prohibiting the carrying of dangerous weapons’’ did not violate the Second Amendment. Again, the court said that the right to bear arms did not apply to the states.

The most recent Supreme Court case is United States v. Miller (1939). The Miller case was founded on a challenge to the National Firearms Act of 1934, which regulated the interstate transport of various weapons. Jack Miller and Frank Layton were convicted of transporting an unregistered 12-gauge sawed-off shotgun (having a barrel less than eighteen inches long) across state lines in violation of the 1934 Act. They challenged the act’s constitutionality partly by claiming that it was a violation of the Second Amendment.

The unanimous court rejected the defendants’ claims, and ruled that firearm registration was constitutional, as was the 1934 law. Beyond this, the court was unequivocal in saying that the Second Amendment must be interpreted by its ‘‘obvious purpose’’ of assuring an effective militia as described in Article I, section 8 of the Constitution. Speaking for the court, Justice McReynolds wrote:

In the absence of any evidence tending to show that possession or use of a ‘‘shotgun having a barrel of less than eighteen inches in length’’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

Thus, the Court stated that citizens could only possess a constitutional right to bear arms in connection with service in a militia.

The Second Amendment also received brief mention in Lewis v. United States (1980), when the court upheld the constitutionality of a 1968 law that barred felons from owning guns, saying that the law did not violate the Second Amendment, citing United States v. Miller. In a challenge to the Gun Control Act of 1968, the Court said that gun regulations were allowable as long as there was some ‘‘rational basis’’ for them, meaning that the regulations merely had to serve some legitimate purpose. This standard is significant because it is one that is easily met, especially as compared with the higher standard the court has set for laws that might conflict with other Bill of Rights freedoms.

Other Court Rulings and the Individualist View

Lower federal courts have followed the Supreme Court’s reasoning on the meaning of the Second Amendment in over forty cases handed down from the 1940s to the present. Challenges to gun regulations and related efforts to win a broader interpretation of the Second Amendment (including efforts to incorporate the Second Amendment) have been uniformly turned aside. Federal courts of appeal, according to United States v. Nelson (1988), ‘‘have analyzed the Second Amendment purely in terms of protecting state militias, rather than individual rights.’’ In 2001, however, a federal court did, for the first time, accept an individual rights interpretation of the Second Amendment in United States v. Emerson. Even in this case, however, the defendant claiming a Second Amendment right was found guilty of unlawful gun possession. The primary basis for this ruling was a series of writings, mostly appearing in law journals, that argued that the Second Amendment protected an individual right to own guns aside from citizen militia service. The first published article advancing this argument appeared in 1960; since the 1980s, more such articles have appeared in print. This argument was also accepted by President George W. Bush’s attorney general, John Ashcroft. The individualist view has been strenuously pushed in recent years by gun rights groups, led by the National Rifle Association.


References and Further Reading

  • Bogus, Carl T., The Hidden History of the Second Amendment, University of Carlifornia Davis Law Review 31 (Winter 1998): 309–408.
  • ———, ed. The Second Amendment in Law and History. New York: New Press, 2002.
  • Carter, Gregg, ed. Encyclopedia of Guns in American Society. 2 vols. Santa Barbara, CA: ABC-Clio, 2002.
  • Cooper, Jerry. The Rise of the National Guard. Lincoln: University of Nebraska Press, 1997.
  • Cornell, Saul, ed. Whose Right to Bear Arms Did the Second Amendment Protect? Boston: Bedford/St. Martin’s, 2000.
  • DeConde, Alexander. Gun Violence in America. Boston: Northeastern University Press, 2001.
  • Finkelman, Paul, ‘‘A Well Regulated Militia’’: The Second Amendment in Historical Perspective, Chicago-Kent Law Review 76 (2000): 195–236.
  • Kennett, Lee, and James LaVerne Anderson. The Gun in America. Westport, CT: Greenwood, 1975.
  • Levinson, Sanford, The Embarrassing Second Amendment, Yale Law Journal 99 (December 1989): 637–59.
  • Rakove, Jack N., The Second Amendment: The Highest Stage of Originalism, Chicago-Kent Law Review 76 (2000): 103–66.
  • Schwoerer, Lois G., To Hold and Bear Arms: The English Perspective, Chicago-Kent Law Review 76 (2000): 27– 60.
  • Shy, John. A People Numerous and Armed. Ann Arbor: University of Michigan Press, 1990.
  • Spitzer, Robert J. The Right to Bear Arms. Santa Barbara, CA: ABC-Clio, 2001.
  • ———. The Politics of Gun Control. 3rd ed. New York: Chatham House, 2003.
  • ———. The Second Amendment ‘‘Right to Bear Arms’’ and U.S. v. Emerson, St. John’s Law Review 77 (Winter 2003): 1–27.
  • Uviller, H. Richard, and William G. Merkel. The Militia and the Right to Arms. Durham, NC: Duke University Press, 2002.
  • Wills, Garry. A Necessary Evil. New York: Simon and Schuster, 1999.

Cases and Statutes Cited

  • Lewis v. United States, 445 U.S. 90 (1980)
  • Maryland v. United States, 381 U.S. 41 (1965)
  • Miller v. Texas, 153 U.S. 535 (1894)
  • Perpich v. Department of Defense, 496 U.S. 334 (1990)
  • Presser v. Illinois, 116 U.S. 252 (1886)
  • United States v. Cruikshank, 92 United States 542 (1876)
  • United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)
  • United States v. Miller, 307 United States 174 (1939)
  • United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988)

See also Ashcroft, John; Bill of Rights: Structure; Constitutional Convention of 1787; Declaration of Independence; Fourteenth Amendment; Hamilton, Alexander; Incorporation Doctrine; Jefferson, Thomas; Madison, James; Mason, George; National Rifle Association (NRA); United States v. Cruikshank, 92 U.S. 542 (1876); United States v. Miller, 307 U.S. 174 (1939); Virginia Declaration of Rights (1776)