[Copyright © 1986 Harvard Journal of Law & Public Policy. Originally published as 9 Harv. J. L. & Pub. Pol'y 559-638 (1986). Permission for WWW use at this site generously granted by Harvard University Journal of Law & Public Policy (www.law.harvard.edu/Students/life/stud_orgs/sp/sp3.html#jlpp) and the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

ARMED CITIZENS, CITIZEN ARMIES:
TOWARD A JURISPRUDENCE OF THE
SECOND AMENDMENT

David T. Hardy[*]

Few political issues have been as hotly debated as firearm regulation, and yet few constitutional guarantees have been treated with as much judicial indifference as the Second Amendment's recognition of a "right of the people to keep and bear arms." The sole Supreme Court decision construing the right dates from forty years ago,[1] and the principal ruling on its applicability to the States is a century old.[2] In the absence of authoritative judicial interpretation, Second Amendment controversies tend to be inspired by actual or potential activities of the legislative branch. The recent dearth of such activities--until the enactment this year of a major reform of federal firearms laws[3] --has led to a similar dearth of legal commentary.[4] (p.560)But recently, under the combined impact of original historical research,[5] a study of federal archives by the Senate Subcommittee on the Constitution,[6] and a judicial challenge to a local handgun ban,[7] the Second Amendment has returned to its status as the most controversial unsettled area of the Bill of Rights.

The Second Amendment to the Constitution of the United States provides: "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."[8] The controversy over the meaning and ramifications of this one-sentence declaration involves a clash between two and perhaps three schools of thought. One school, which may be considered the "individual rights" approach, holds that the Second Amendment recognizes a right protecting individual citizens in the peaceful ownership of private firearms for their private purposes.[9] The second approach, broadly described as a "collective rights" approach, argues that the right embodied in the Second Amendment runs only in favor of state governments and seeks to protect their maintenance of formal, organized militia units (p.561)such as the National Guard.[10] In addition, there appears to be a hybrid interpretation, which argues that the right protected is indeed one of individual citizens, but applies only to the ownership and use of firearms suitable for militia or military purposes.[11]

This Article will demonstrate that in light of the historical evidence, documentation of the intent of the drafters of the Second Amendment and their contemporaries, and the need to maintain a consistent standard of constitutional interpretation, the individual rights approach is the only approach that has any validity. It will then formulate a proposed test intended to accommodate the purposes of the Framers to developments in weapons technology that have produced infantry weapons qualitatively more deadly than existed when the Bill of Rights was drafted.

I. The Right to Keep and Bear Arms:
A Historical Perspective

The development of the right to keep and bear arms in English and American law may best be analyzed by examining six periods. The first can broadly be classified as the earliest history of the right, in which the concept of individual armament gradually became an accepted part of the English experience and part of the "rights of Englishmen." The second is the crucial half century from 1639 to 1689, which forged the English and American concept of "rights" and (coming as it did less than a century before the American Revolution) was familiar (p.562)history to the framers of the American Constitution and Bill of Rights. The third is the specifically American experience in keeping and bearing arms before and during our War of Independence. The fourth is the period during which our Constitution was drafted, debated and verified; the fifth is that of the drafting and passage of the Bill of Rights. The final period of relevance consists of treatment of the right to keep and bear arms in early case law. Each of these periods will be examined in turn.

A. Early Common Law

The concept that there is a relationship between individual ownership of weaponry and a unique status as "free Englishmen" antedates not only the invention of firearms but also the Norman-English legal system. The great English legal scholar, William Blackstone, attributed the development to Alfred the Great, asserting: "It seems universally agreed by all historians, that King Alfred first settled a national militia in this kingdom, and by his prudent discipline made all the subjects of his dominion soldiers ...."[12] Recent historical research has suggested that this is an understatement. The early militia, or Fyrd, can now be traced at least to A.D. 690; indeed, it is likely that "the obligation of Englishmen to serve in the Fyrd of people's army is older than our oldest records."[13] It is in any event clear that, centuries before the Norman conquest, the Saxons had evolved a military and political system in which every free man was obligated by law to possess the weapons of an infantryman and to serve in the Fyrd.[14] Under these laws, "every land holder was obligated to keep armour and weapons according to his rank and possessions; these he might neither sell, lend nor pledge, nor even alienate from his heirs."[15] This concept (p.563)was radically different from the Continental feudal system, which revolved around mounted and armoured men at arms and limited the right of armament, and the duty of fighting in defense, to a relatively small and wealthy class.[16]

The Norman conquest of 1066 saw the most efficient form of military feudalism imported into England.[17] But the new Norman rulers added some improvements intended to avoid the central flaw of the feudal system. That flaw had lain in the concept that the duty of military service was owed, not necessarily to the national sovereign or government, but immediately to the individual who had granted land to the person rendering service. Because the military duty ran with the land, determining who owed service and how many men he was obligated to provide soon became as complicated and easily disputed as a title question in the period before recording statutes. Further, it was possible that the same individual might owe military service to two individuals in conflict with each other, or that a major landholder would be able to call upon his subordinate tenants to fight with him against the king.[18] In 1086, William the Conqueror required every land holder to swear directly to him "loyalty against all men."[19] Maitland considered that the combination of this oath and Fyrd duty was the crucial distinction between English and the Continental political ideals.[20]

The Angevin monarchs continued the tradition of individual armament. The Assize of Arms of 1181 strengthened the principle that every able bodied freeman was required to provide weapons according to the worth of his chattels and to serve the king at his own expense when summoned by the sheriff of his (p.564)county.[21] In 1253, another Assize of Arms expanded the duties still farther to encompass not only free men, but also villeins, or serfs, who were bound to the land and most certainly not free.[22] Even the poorest and least free Englishman was required to have at least a halberd (an eight-foot pole weapon mounting an ax-head and a sharpened spike) and a dagger. Forcing serfs to obtain weapons was hardly in accord with feudal ideals![23]

The ascendency of the longbow as a characteristically English weapon reinforced this trend. The longbow was an inexpensive weapon, suitable for mass armament of the commoners, but had sufficient power to pierce the armour of a feudal knight.[24] In the Thirteenth and Fourteenth Centuries, English armies, composed largely of commoners equipped with longbows, inflicted stunning defeats upon traditional French feudal forces.[25] The outcome was an English emphasis upon ownership of individual weapons that appears incredible today. In 1285, Edward I reaffirmed the earlier assizes and added the requirement that "anyone else who can afford them shall keep bows and arrows."[26] In the following century, Edward III ordered the sheriffs of London to force "every one of said city (p.565)stronge in body, at leisure time on holidays" to "use in their recreation bowes and arrows."[27] His successor, Richard II, established a national policy of universal armament with projectile weapons, commanding that "every Englishman or Irishman dwelling in England shall have a bow of his own height," that each town maintain an archery range, that games of dice, horseshoes, and tennis be banned in order to force citizens to use the bow for sport, and that prices of bows be controlled in order to make them available to even the poorest citizen.[28]

This right and indeed duty to keep and bear arms was subject at common law to only a few limitations. Several early enactments prohibited appearing before Parliament or the royal courts with force and arms.[29] The Statute of Northampton prohibited Englishmen from using their arms "in affray of the peace, nor to go or ride armed by day or night in fairs, markets, nor in the presence of the justices or other ministers."[30] The enactment might on its face be read to indicate a prohibition on carrying arms in most public assemblies. In fact, consistent with the common law acceptance of widespread private armament, the royal courts construed the ban to apply only to the wearing of arms "accompanied with such circumstances as are apt to terrify the people," holding that on the other hand, "persons of quality are in no danger of offending against the statute by wearing common weapons."[31]

The Tudor dynasty of the Sixteenth Century found itself faced with new problems. First, the increasing prevalence of firearms led to neglect of longbow shooting, and, at least for the first half of the century, the longbow was still considered the more useful military weapon. Second, the invention of the wheelock, which did not require a burning match for firing, (p.566)made firearms truly portable and rendered possible extensive use of pistols. On the Continent, the second consideration had already led to a wave of weapon regulation. The Emperor Maximillian I attempted to ban wheelock manufacture throughout the Holy Roman Empire in 1518; the French monarchy likewise imposed strict control upon manufacture and sale of firearms and ammunition.[32] In a nation like England, where every peasant was already required by law to own a longbow and a supply of armour-piercing arrows, banning firearms to protect the nobility against peasant revolt would have been an exercise in futility. On the other hand, at least while firearms were perceived as less deadly than the longbow, a case could be made for restricting their use on the same basis as other sporting activities that distracted from archery training. That is, firearm shooting might be restricted because firearms were not yet deadly enough. In 1503, Henry VII had already limited shooting (but not ownership) of crossbows to those who held lands worth 200 marks annual rental, but provided an exception for those who shot out of the house in lawful defense of their dwelling.[33] Eight years later, Henry VIII increased the property requirement to 300 marks, but disavowed any objective of general disarmament by repeating the command that citizens "use and exercyse shootyng in longbowes, and also have a bowe and arrowes contynually" in their houses.[34] The same statute required fathers to purchase bows and arrows for their sons who reached the age of seven years and to train their sons in their use.[35] In 1514, firearms were included within the ban on crossbows, so that only the relatively wealthy (who would rarely fight as archers anyway) could possess them.[36] This measure was a total failure.

In 1533, the "Acte for Shotyng in Crosbowes and Handgonnes" noted that notwithstanding the earlier laws "many wylfull and lyght disposed persons from tyme to tyme have attempted the breche or vyolacion of the same statutes."[37] Rather than (p.567)trying to make Englishmen comply with the law, this 1533 enactment sought to make the law comply with the activities of Englishmen, by dramatically reducing the property requirement for firearm ownership to 100 pounds worth of lands per year. Eight years later, a second enactment by the same name complained that "divers malicious and evil disposed persons" had not only violated the earlier laws but committed "shamefull murther, roberies, felonyes, ryotts, and routs with crosbowes, little short handguns, and little hagbutts."[38] Once again, the statute was liberalized rather than tightened: Now it would apply only to possession of small firearms, below one yard overall length for some and three-quarters of a yard for others, and even this ban was subject to exemptions for residents of towns shooting at target ranges and in self-defense.[39] Eventually, with increasing acceptance of the firearm as a military tool, Henry VIII was driven to repeal the entire set of firearm statutes by royal proclamation; subsequent attempts at revival were unavailing.[40]

The early Tudor militia emphasized individual marksmanship, (p.568)not organization. The bulk of England's Sixteenth-Century wars had been carried on without the militia, using largely vagabonds, beggars, and other persons "pressed" into service by local officials.[41] But the increasing complexity of Sixteenth- and Seventeenth-Century warfare, which emphasized coordination of infantry units armed with long spears ("pikes"), muskets or field artillery, and cavalry, made improved organization essential.[42] The Spanish Armada scare of 1588, moreover, illustrated the threat of invasion by a large, well-organized force. The reign of Elizabeth I saw an increased organization of the armed citizen army, complete with mandatory annual drills and target practice.[43] In her reign, the term "militia" first came into use, to designate the entire body of armed citizenry;[44] this was in distinction from the "train bands" or "trained bands," which were a small part of the entire militia chosen for special training with government-supplied arms.[45]

Thus, by the end of the Tudor period, extensive armament of individual Englishmen and a general obligation to serve in the militia had become an accepted part of English law and tradition. The private armament of Englishmen was striking to foreign visitors. In 1539, the French ambassador reported that "in Canturbury, and the other towns upon the road, I found every English subject in arms who was capable of serving. Boys of 17 or 18 have been called out, without exemption of place or person ...."; a few years later, the English government was able to keep a body of 120,000 men available throughout the summer.[46] This universal armament was subject only to the most narrow of exceptions. When Parliament in 1585 passed a bill to seize and store the armour of "papist recusants" (p.569)(Catholics, who were unable to take the Oath of Supremacy, which proclaimed the Queen's religious supremacy), Elizabeth vetoed the legislation; only in the following year did she permit it to become law, in a form that permitted the armour to be seized and held for "safekeeping" rather than forfeited to the government.[47]

Some, to be sure, were disturbed at the widespread popularity of firearms and feared illegal or rebellious use. But when the Privy Council in 1569 proposed government storage of militia firearms, almost unanimous opposition was encountered on the part of local militia officials.[48] Officials in Kent made a counterproposal: disavow all intent of restricting gun ownership, allow unlimited hunting with guns, and all shortages of militia firearms would solve themselves very quickly.[49] The Privy Council dropped its proposal.

The English citizen army was not without imitators. When the French attempted a similar experiment, seeking to organize 42,000 citizen soldiers, the result was a failure. A contemporary noted of them that "they were brought up in slavery, with no experience in handling weapons, and since they have passed suddenly from total servitude to freedom, sometimes they no longer want to obey their masters."[50] Throughout the Tudor period, the English came to see widespread ownership of weapons as the essence of being English, and free English at that. In his work, "The Governance of England," written sometime between 1471 and 1476, Sir John Fortescue expounded at length on the difference between the lot of the French peasant (which he considered the result of absolute monarchy or jus regale) as opposed to that of the English commoner (which he considered the fruit of a constitutional monarchy). The French peasants, he noted, have grown feeble, "not able to fight, nor to defend the realme; nor thai haue wepen, nor money to bie thaim wepen withall.... Werthurgh, the French kynge, hath not men of his own reaume able to defend it, except as nobles.... Lo, this is the frute of his jus regale."[51] Sir Walter Raleigh, the later (p.570)patriot, corsair, explorer, and historian, took a similar view. In his Maxims of State, he assigned to the "barbarous and professed tyranny" the plan "to unarm his people of weapons," while the "sophistical or subtle tyrant" would seek "to unarm his people and store up their weapons, under pretence of keeping them safe."[52] Other historians have joined with Fortescue and Raleigh in considering extensive private ownership of "wepens" to be a factor in the moderation of monarchical rule and development of the concept of individual liberties in Britain, at the same time that royal absolutism was expanding on the Continent. Thomas Macaulay, the Nineteenth-Century "new Whig" historian, counseled his readers that while past generations of Englishmen held their king to the line of the constitution:

they also claimed the privilege of overstepping that line themselves, whenever his encroachments were so serious as to excite alarm. If, not content with occasionally oppressing individuals, he dared to oppress great masses, his subjects promptly appealed to the laws and, that appeal failing, appealed promptly to the God of battles.

They might indeed safely tolerate a king in a few excesses; for they had in reserve a check which soon brought the fiercest and proudest king to reason, the check of physical force ... resistance was an ordinary remedy for political distempers .... If a popular chief raised his standard in a popular cause, an irregular army could be assembled in a day.[53]

British military historian Sir Charles Oman provides a case in point--that of Henry VIII:

More than once he had to restrain himself, when he discovered that the general feeling of his subjects was against him. As the Pilgrimage of Grace showed, great bodies of malcontents might flare up in arms, and he had no sufficient military force to oppose them. His "gentlemen pensioners" and his yeomen of the guard were but a handful, and bows and bills were in every farm and cottage.[54](p.571)

The militia system thus achieved a reasonable balance between order and liberty, a balance rare today, and even rarer in the Sixteenth Century.

B. 1639-1689: The Crucial Half-Century

A careful study of the half-century from 1639 to 1689 is crucial to a proper understanding of the views of the framers of our own Constitution and Bill of Rights. The Tudor and Stuart monarchs had increased the power of the monarchy until many accepted that a king ruled by divine right, subject (at most) to a few traditional rights of his subjects. But the period from 1639 to 1689 saw a civil war between Parliament and crown, one king executed for "crimes against the people," a second deposed, a military dictatorship created and ended, a Declaration of Rights enacted, and a new king and queen, chosen by Parliament, required to accept the Declaration before coronation. In that violent half-century, the concept of rights that would dominate English (and thus American) thought of the next century took form. The political party whose thought would so greatly shape American views before the Revolution, the Whigs,[55] was born in the conflicts of this period. When Jefferson, Madison, and their contemporaries called for a bill of rights, they had to hearken back barely a century for an English precedent.

During the reign of the Stuart monarchs, opposition to the royal prerogatives mounted. As John Dalrymple wrote barely a century after this period: "Various causes contributed to this, besides the first great cause, the high spirit of the people, indignant of their servitude." As he saw it, the main cause of the spirit was the rise of the militia, "composed not of military tenants and their vassals only, but in which every freeman grasped a sword who had strength to wield it ...."[56] The approaching conflict was not long delayed. Early in the Seventeenth Century, increasing conflicts between the financial desires of the Crown and the growing reluctance of Parliament to approve higher taxation passively led Charles I simply to refuse to call Parliaments for eleven long years. In 1640, however, the demands (p.572)of a victorious Scottish army for a massive indemnity payment made additional taxes, and thus a Parliament, inevitable. The new Parliament (called the "Long Parliament" because it sat for nine years) played its hand to the limit. Charles I's ministers were attainted, and one executed; acts were passed that forbade the dissolution of Parliament without its own consent, required the calling of a Parliament every three years, expelled the Lords Spiritual (the bishops, who were strongly royalist) from the House of Lords, and destroyed the crown's "prerogative courts."[57] Charles acquiesced in these revolutionary measures; the pill that could not be swallowed came when Parliament demanded control of the militia.[58] Charles's reply took the form of an unsuccessful attempt to arrest five members of Parliament for high treason. Virtually driven out of London in August 1642, Charles raised the royal standard, the traditional call for the mustering of an army.

The forces arrayed on both sides were indifferently armed. One force that gave a good account of itself boasted but 30 musketeers and 1,000 "clubmen," carrying the only weapon they could obtain, a wooden club.[59] To make up the deficiency--and to minimize the possibilities of the populace turning against him--Charles confiscated the arms of many "trained bands."[60] The results were hardly unexpected:

Wails of despair were heard from city after city as the royal army confiscated public magazines and disarmed local residents. "The best of it is," a distraught and disarmed townsman of Nantwich wrote, "if we stay at home, we are now their slaves. Being naked, they will have of us what they list, and do with us what they list." Forewarned and forearmed, and from 1642 Englishmen learned to hide their firearms and stockpile weapons.[61]

As he disarmed his opponents, Charles cajoled potential supporters (p.573)into purchasing arms. He even wrote Catholic magnates, disarmed by his lieutenants in earlier years, to explain that he had not really meant for their firearms to be taken permanently, but only held in temporary custody; if they would arm now, he would guarantee their later possession, or reimburse them should they be disarmed at any later date.[62] Charles's efforts were to no avail; the Civil War ended in a total Parliamentary victory. Charles's attempts to revive the conflict ended with his trial and execution.

Parliament soon learned the perils of attempting to dismount from a tiger. Attempts to dissolve the army (conveniently ignoring that many of its regiments had been unpaid for months) and to prosecute religious independents led to a military takeover of the government. The precipitating event was an attempt by Parliament to enact a Militia Ordinance; one of the first acts of the new "Rump" Parliament, put into power by the army, was to rescind the ordinance.[63] In 1654, yet another Parliament was dissolved after it tried to enact a similar law.[64] The new Parliament was nominated by the officers of the army. Within the year, Oliver Cromwell had pressured it into dissolution and replaced it with yet another Parliament, which named him "Lord Protector" of England. But, in 1655, even this Parliament began to press for a reduction of the standing army and a revitalization of the militia.[65] Cromwell made the final step, dissolving Parliament and creating a military government that divided the nation into eleven districts, each headed by a major general whose duties included political surveillance, censorship, and influencing elections.[66] These were assigned a special militia, limited to slightly over 6,000 men in number, who were paid by the government on a yearly basis.[67]

Following Cromwell's death, the remnants of the Rump Parliament were recalled in May 1659, and within a few months (p.574)enacted laws requiring each householder in London and its suburbs to report to the government all persons residing in his house, together with a list of all arms or ammunition of each, and empowering government officials to confiscate arms and ammunition upon a finding of "just cause of suspicion and danger to the commonwealth."[68] A week later, it passed "An Act for settling the Militia in England and Wales."[69] The title was misleading. The officials administering that statute were to muster only "well-affected persons," and were on the other hand empowered to

search for and seize all arms, in the custody and possession of any popish recusant, or other person that hath been in arms against the Parliament, or that have adhered to the enemies thereof, or any other person whom the Commissioners shall judge dangerous to the peace of this Commonwealth.

The new Rump Parliament did not last long. The commander-in-chief of its army advanced on London with his own troops, overthrew the New Model Army without a fight, and called a new Parliament. This Parliament invited Charles II, son of the executed king, to return. The rule by military junta was over, but this rule, which ended barely a century before the American Revolution, left a bitter taste for all concerned: "The soldier is no longer an injured citizen; he is a danger to the state."[70]

The new king swiftly pensioned off the New Model Army, keeping only troops that he felt would be loyal to the new regime.[71] For civilians, the reign began with repression of dissent. (p.575)A vengeful Parliament enacted statutes liberalizing the definition of treason and imposing censorship on the press--books on politics or history now required a license from the Secretary of State. Other enactments imposed religious conformity and required the demolition of the protective walls of many towns that had sided with Parliament during the civil war.[72] None of these measures, however, addressed the most obvious barrier to centralized royal control: By 1660, Englishmen were, in the words of one historian, "armed to the teeth."[73]

Twenty years of political strife had left individuals and towns heavily armed and the few guns remaining in government hands were promptly stolen. Although the main English army alone had numbered 60,000 men, Charles II found only 3,000 guns in public arsenals.[74] Using his own prerogative, in the absence of statute, Charles reconstituted a very limited organized force and began trying to disarm his opponents. He issued instructions commanding the Lords Lieutenant of the militia to exercise their troops: "well-affected officers chosen, the volunteers who offer assistance formed in troops apart and trained; the officers to be numerous, disaffected persons watched and not allowed to assemble, and their arms seized ...."[75] Five months later, he caused a militia bill to be introduced in the Commons, but it encountered opposition based more on the harassments and excessive gun searches by the organized militia than on the terms of the bill.[76] Only in 1662 did Charles get (p.576)his militia statute, after trumping up reports of various plots against the government and stacking the committee considering the bill with his father's former officers.[77] Like the militia establishments under the Protectorate, Charles's militia would be composed only of a small part of the population--many fewer, indeed, than had been enrolled in the militia in the less populous times of Elizabeth I.[78]

Under the militia statute, those "charged" with providing a militiaman were exempted from service if they hired a substitute in their place, and were required to swear "that it is not lawful upon any pretense whatsoever to take arms against the king". Other provisions of the 1662 Militia Act empowered Lieutenants of the militia to confiscate all arms owned by any person they "judge[d] dangerous to the peace of the kingdom."[79] To buttress these measures, Charles ordered gunsmiths to produce a record of all weapons manufactured over the previous six months together with a list of purchasers, and to file weekly reports on firearms sold; carriers were forbidden to transport guns without a royal license, and importation was limited.[80]

In 1671, Parliament imposed measures aimed at general disarmament of the non-landowning population. Hunting had long been a privilege of the upper class, and poaching was discouraged by game laws that prohibited not only the act of poaching but also the possession of hunting implements such as nets or traps.[81] In 1671, however, the Hunting Acts were amended to limit hunting to persons with lands worth 100 pounds sterling per year (two and a half times the figure required at the beginning of Charles II's reign and no less than fifty times the electoral franchise requirement) to eliminate the exception for those with four hundred pounds worth of personal property (that is, the city merchants and professionals), and to expand the list of items whose possession was prohibited to non-hunters to include "any guns, [or] bows ...."[82] (p.577)The Calendars of State Papers for the period are filled with examples of enforcement of the various firearm laws: "Think Fauntleroy an untoward fellow; arms for thirty or forty were found in his house last year...."; a report of an arrest "for dangerous designs, he having been taken on the guard, with a pistol upon him," and a report of an arrest of seven Quakers of whom "one, a gunsmith, confesses to fixing arms lately," were typical.[83]

Charles was followed by his brother, James II, who had built a reputation during their Continental exile as an honest and forthright soldier. His major drawback was that, while officially head of the Anglican Church and king of a nation that barred Catholics from appointive office, James was himself a Catholic and practiced his faith openly. Within a few months, he was faced by a rebellion led by the Duke of Monmouth, Charles II's charismatic illegitimate son, who portrayed himself as the savior of Anglicanism. The local militia proved incapable of stopping the rebellion, which was finally put down by regular troops.[84] In response, James greatly increased the regular army. Because no act existed that authorized him to impose martial law, discipline was weak and clashes with civilians were frequent.[85] The arms confiscations were expanded. One Londoner noted that James's officers "went from house to house to search for arms, and 'tis said at some places quantities were seized."[86]

The kings of England had traditionally held a "dispensing power" by which they could make an occasional exception to (p.578)statutory law.[87] James II used this wholesale to permit Catholic officers to enter his army despite the "Test Acts."[88] James then requested authorization of a large standing army but was rejected even by his normally compliant Parliament.[89] These requests and his use of the dispensing power had fueled popular suspicion of his intentions. James, it was rumored, intended to impose his religion and royal absolutism by military force.

James also continued the arms confiscations that had been begun by his brother, directing them increasingly against the new Whig party, which opposed him. In December 1686, orders were sent to six of the Lords Lieutenant of the Militia, informing them that the King had heard "that a great many persons not qualified by law under pretence of shooting matches keep muskets or other guns in their houses," and that the King therefore desired "that you should send orders to your Deputy Lieutenants to cause strict search to be made for such muskets or guns and to seize and safely keep them till further order."[90] Records of the period show many searches, executed under authority either of the Militia Acts or of the Hunting Act.[91] The political motivation was obvious: "There are signs that the disarming of the people for good was an integral part of the Crown's measures for destroying Whig [anti-royalist] powers of resistance."[92] These searches and confiscations caused a great deal of bitterness among their victims.[93] (p.579)James further issued an order "for disarming the population of Ireland," which local authorities enforced heavily against the English colonists.[94] This disarmament was likewise resented: Lord Tyrconnel, Military Commandant of Ireland, only a month later reported "informations seeming to impute much of the unruliness of the Tories [local bandits--the term came to have a political meaning later] to the English being disarmed," but he agreed that "It is a thing of great consequence what persons should be trusted with arms and ought to be very well considered ...."[95]

James's civil policies alienated the Whigs, and his religious policies alienated the Anglican establishment, the normal bulwark of the throne. With both of these forces against him, he was a marked man. In November 1688, England was nominally "invaded" by his son-in-law, William of Orange, and daughter, Mary, and James fled to the Continent. The bloodless coup came to be known as the "Glorious Revolution" ("revolution" at that time having almost the opposite of its current meaning, being used to describe a reversal of a radical change and a return to traditional norms rather than the institution of such a change).[96]

The flight of James II posed two major constitutional questions. The first was a problem for the "establishment," now becoming known as the Tories: Given that they adhered largely to the notion of kingship as a divine or at least hereditary right, how could they justify recognizing William or any other person as monarch at a time when James, who unquestionably had been the King of England, was alive and asserting his hereditary right? The second was a problem for the "country party," the Whigs: How could they insure that the rights they felt James had infringed would be guaranteed against future infringements by the new monarchs or their descendants?

These problems were handled in a practical, if not necessarily consistent, manner. A "convention" Parliament formulated a Declaration of Rights, proclaimed that James had abdicated (p.580)by (in Whig theory) violating those rights and (in Tory theory) by leaving England. William and Mary accepted the Declaration of Rights as definitive of the rights of their subjects, agreed to govern in accord with the Declaration, and thereupon assumed the role of sovereigns. They then formally called a parliament, which enacted the Declaration of Rights as the Bill of Rights.[97]

The Declaration was not intended as a radical statement of the rights of individuals. Because constitutional government was being held in limbo pending its drafting and acceptance by the intended sovereigns, speed was essential, and its principles had to be ones acceptable to virtually all members of the legislature, from the most conservative Tory to the most radical Whig. It was accordingly drafted, not to introduce new principles of law, but merely as a "recital of the existing rights of Parliament and the subject, which James had outraged, and which William must promise to observe."[98] This essentially conservative consensus would become the basis of the English and American theory of rights that predominated during the American Revolution eighty-six years later. For constitutionalists of that period such as Edmund Burke and William Blackstone, "1689 seemed the last year of creation, when God looked down upon England and saw that it was good."[99]

Significant among the rights recognized in the Declaration was an individual right to ownership of arms. In the form finally adopted by both Houses, the Declaration complained that James "did endeavor to subvert and extirpate ... the laws and liberties of the kingdom" by, inter alia, causing his Protestant subjects "to be disarmed at the same time when Papists were both armed and employed contrary to law," and resolved "for vindicating and asserting their ancient rights and liberties," (p.581)that "the subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law."[100] The Parliament went on to re-enact the Hunting Act, with one significant change: Firearms were pointedly omitted from the list of hunting equipment that could not be possessed except by the wealthy.[101] "The provision in the Declaration of Rights that Protestant subjects had a right to have arms suitable to their conditions and as allowed by law was interpreted to mean that all Protestants, whatever their condition, were permitted to have arms."[102]

A few modern writers have claimed that the Declaration of Rights was not directed so much at any disarmament of Protestants as at the fact that Catholics were permitted to be armed while the Protestants had been disarmed: "The imposition lay more in the discrimination than in the disarming."[103] No authority is cited for this conclusion, except personal surmise. Historical data, such as the private arms confiscations that led to the deposition of James and the subsequent repeal of the Hunting Act's ban on firearms ownership, indicate that this is (p.582)an incorrect interpretation. Additionally, the legislative history of this section of the Declaration of Rights in the House of Commons strongly suggests that an individual right was intended. Lord Somers, a Whig leader who headed the committee charged with drafting the Declaration,[104] penciled notes of the Commons debates.[105] Somers's notes reveal Parliament's great concern with the confiscation of private arms collections, in particular under the 1662 Militia Act. Somers condensed a speech by Sir Richard Temple to "Militia Bill--power to disarm all England--now done in Ireland."[106] Another member, a Mr. Boscawen, added a personal complaint: "arbitrary power exercised by the Ministry.... Militia--imprisoning without reason; disarming--himself disarmed ...."[107] Sergeant Maynard then blasted the previous parliaments that had enacted this legislation: "Some gross grievances for which we are beholden to a Parliament, who cared not what was done, so their pensions were paid-- Militia Act--an abominable thing to disarm the nation ...."[108] Members of the Commons, it can be seen, were primarily afraid of the disarmament of individual Englishmen under the powers granted by the Militia and Hunting Acts.

The attitude of the House of Lords is even more clear. As passed by the Commons, the Declaration of Rights would simply have noted that "The acts concerning the Militia are grievous to the subject," and that therefore, "It is necessary for the public safety that the subjects, which are Protestants, should provide and keep arms for their common defense; and that the arms which have been seized and taken from them be restored."[109] While this wording did call for the return of arms confiscated from individuals, it still placed emphasis on the keeping of arms "for the common defense." The House of Lords changed this provision to: "The subjects which are Protestant may have arms for their defense suitable to their conditions and as allowed by law," and so omitted any notion of (p.583)"common defense."[110] The Declaration's introductory clause that condemned the arming of Catholics was added during conference late in the drafting process after both Houses had passed versions of the Declaration. The Lords who proposed considered it only an aggravation of the real violation: personal disarmament. "This is a further aggravation fit to be added to the clause," is their entire explanation of the conference amendment.[111]

The actions of both Houses are thus consistent only with the view that an individual right was intended. Indeed, modern British military historian J. R. Western, who views the proceedings from the standpoint of the militia movement rather than individual rights to own arms, has complained of the final version: "The original wording implied that everyone had a duty to be ready to appear in arms whenever the state was threatened. The revised wording suggested only that it was lawful to keep a blunderbus to repel burglars."[112] This is, of course, consistent with the later actions of Parliament in repealing the arms ban contained in the Hunting Act.[113] This individual rights interpretation of the Declaration is also consistent with colonial views of the right to bear arms. When Maryland in 1692 enacted a militia statute based on the 1662 Act, it added a provision that no "persons whatsoever shall presume at any time to seize, press or carry away from the inhabitant resident in this province any arms or ammunition of any kind whatsoever ... any law, statute or usage to the contrary notwithstanding."[114]

A second important political legacy of the Glorious Revolution is the eventual emergence of the Whigs as a major political (p.584)party and Whiggism as the dominant ideology of freedom.[115] This had no small impact on the New World; John Adams estimated that nine-tenths of Americans were Whigs by the outbreak of our Revolution, and even the British general John Burgoyne admitted that "I look with reverence, almost amounting to idolatry, upon those immortal Whigs" responsible for the Declaration of Rights.[116]

The early Whig theorists unanimously stressed individual ownership of arms, the formation of a citizen army, and the limitation of standing armies as the basis of political freedom. They drew upon Sir Walter Raleigh, who wrote that among the "sophisms of a barbarous and professed tyranny" would be plans "to unarm his people of weapons, money and all means whereby they may resist his power," while the "sophistical or subtle tyrant" would plan "to unarm his people, and store up their weapons, under pretence of keeping them safe, and having them ready when service requireth."[117] Algernon Sydney, a leading Whig thinker and politician executed by Charles II, counseled that "No state can be said to stand upon a steady foundation, except those whose whole strength is in their own soldiery, and the body of their own people," and more concisely, that in a proper commonwealth, "the body of the people is the public defense, and every man is armed."[118]

The post-1688 Whigs maintained the same principles. Roger Molesworth summed it well in his famous foreword to Hotman's Franco-Gallia: "[T]he arming and training of all the (p.585)freeholders of England, as it is our undoubted ancient constitution, and consequently our right; so it is the opinion of most Whigs, that it ought to be put into practice."[119] Molesworth praised the Swiss as examples of this wisdom and rejected the Game Laws as a reason for disarming the poor: "The preservation of the game is but a very slender pretence for omitting it. I hope no wise man will put a hare or a partridge in balance with the safety and liberties of Englishmen." James Harrington expanded upon these principles in his Oceana, a Whig Utopia. To Harrington, it was "the possession of land that gave a man independence, this independence being in the last analysis measured by his ability to bear arms and use them in his own quarrels ...."[120] In his Prerogative of Popular Government, Harrington added that a republic is virtually unconquerable because its citizens, "being all soldiers or trained up unto their arms, which they use not for the defense of slavery but of liberty" cannot be subdued: "Men accustomed to their arms and their liberties will never endure the yoke."[121] Harrington's follower, Henry Neville, added that "democracy is much more powerful than aristocracy, because the latter cannot arm the people for fear they should seize upon the government."[122]

In the early Eighteenth Century, Andrew Fletcher added his Discourse of Government with Relation to Militias. Like Harrington, Fletcher shared Machiavelli's admiration for the ancient armed republics of Rome and Sparta.[123] Fletcher also noted the contemporary example of the Swiss: "the freest, happiest, and the people of all Europe who can best defend themselves, because they have the best Militia."[124] He saw his proposal "that the whole people of any Nation ought to be exercised to Arms" as supported by both the common law and by history; "and I cannot see, why Arms should be denied to any man who is not a (p.586)Slave, since they are the only true Badges of Liberty ...."[125] His successor, James Burgh, was still more popular in the colonies. Burgh devoted an entire chapter of his Political Disquisitions to the Militia-Army issue. "No kingdom can be secured otherwise than by arming the people," Burgh wrote, adding, "The possession of arms is the distinction between a freeman and a slave."[126] Writing on the eve of the American Revolution, Burgh argued that the emerging conflict was itself a product of ignoring these principles:

The confidence which a standing army gives a minister, puts him upon carrying things with a higher hand than he would attempt to do if the people were armed and the court [royal officials] unarmed, that is, if there were no land force in the nation, but a militia. Had we at this time no standing army, we should not think of forcing money out of the pockets of three millions of our subjects. We should not think of punishing with military execution, unconvicted and unheard, our brave American children, our surest friends and best customers.... We should not--but there is no end to observations on the difference between the measures likely to be pursued by a minister backed by a standing army, and those of a court awed by the fear of an armed people.[127]

The Whig writings have more than purely historical interest. John Adam's estimate that ninety percent of Americans were Whig sympathizers at the time of the American Revolution has been mentioned, and many of these American Whigs were deeply familiar with the writings of their English predecessors.[128] John Adams held special regard for Harrington, although he probably did not endorse the 1779 proposal to change Massachusetts's name to Oceana.[129] Adams and Madison both studied Molesworth in detail; Jefferson's library (p.587)boasted copies of Sydney, Molesworth and Harrington.[130] These works, and those of Fletcher, were also owned by the likes of Benjamin Franklin, John Hancock, and George Mason.[131] When Burgh's Political Disquisitions were printed in the colonies, Benjamin Franklin served as editor, and the subscription list for the first edition included George Washington, Thomas Jefferson, John Adams, John Hancock, and John Dickinson.[132]

The Harringtonian view retained its vitality in England as well. Only a few years before the drafting of our own Constitution, the Recorder of London, a legal official roughly equivalent to the chief justice and general counsel of the City, issued a legal opinion.[133] This opinion accepted an individual right "of his Majesty's Protestant subjects, to have arms for their own defense, and to use them for lawful purposes," established "by the ancient laws of this kingdom." Such a right to own arms was necessary for "the suppression of violent and felonious breaches of the peace, the assistance of the civil magistrate in the execution of the laws, and the defence of the kingdom against foreign invaders."[134]

Thus, by the Eighteenth Century, the English tradition of individual armament had crystallized into a conception of individual ownership of arms as a specific political right supported by the entirety of Whig political thought. This concept would exert even greater impact upon the emerging American colonies than it had upon the Britain of the time.

C. The Right to Bear Arms in Colonial America: "A People ... Discontented and Armed"

The colonists in the New World needed private armament to a degree unknown in their motherland. The early colonies were short on fighting manpower, faced with external danger in the form both of Indians and of rival Dutch, French, and Spanish colonists, and heavily dependent upon hunting for their meat (p.588)supply. It is thus not surprising all forms of firearms were soon present in quantity. In September 1622, for instance, the Virginia colony received a shipment of 300 muskets, "300 short pistols with fire locks," plus bows, arrows, and spears.[135] In 1623, the Virginia legislature forbade anyone to "go or send abroad without a sufficient partie will armed," ordered that "The commander of every plantation take care that there be sufficient of powder and ammunition within the plantation" and required that every dwelling house be palisaded for defense.[136] Eight years later, it required that "All men that are fittinge to beare armes, shall bring their pieces to church ...." for drill and target practice,[137] and by 1658, it required that every "man able to bear arms have in-house a fixt gun ...." (apparently meaning a repaired and functioning one).[138] The American colonists quickly became the "greatest weapons-using people of the epoch in the world."[139] The breadth of armament was subject to few restrictions: In North Carolina, for instance, blacks who had obtained their freedom from slavery were also free to own as many arms as they desired; not until 1840 were they first required to obtain a license.[140]

The colonists had no use for regular troops, and instead concentrated upon refining the militia system. In the early Seventeenth Century, four northeastern colonies formed a military confederation that required thirty men out of every company to be maintained so as to be ready upon half an hour's notice; supporting these was a formidable general militia, one that in Massachusetts in 1675 was capable of turning out 1200 militiamen within an hour.[141]

The colonists often used their firearms against their own governors. After Bacon's Rebellion in 1676, Virginia Governor William Berkeley had cause to describe his misery at governing (p.589)"a people where six parts of seven at least are poore, indebted, discontented and armed."[142] The Glorious Revolution in the mother country was met by a simultaneous rebellions of the northeastern colonies against the Royal Governor, Sir Edmund Andros, which rebellion saw Boston "generally in arms"[143] and the Governor besieged by several thousand armed colonists. By the second half of the Eighteenth Century, "scarcely a decade passed that did not see the people in arms to redress official grievances."[144] The end of the Seven Years War (known in the Americas as the French and Indian War) left Britain with a sizable empire and large frontiers to defend. Now the objective became the management of the empire: Expansion into the interior was to be discouraged, in order to maximize the lucrative fur trade with the Indians, revenue-producing taxes were to be enforced, and a large standing army stationed about the empire. These measures, the permanent stationing of large army units in particular, stirred controversy. The colonists, who saw the danger of Indian interference as diminished rather than increased now that the French stronghold of Canada had fallen, observed that the ranger units most useful against Indians were being dissolved even as the regulars were being increased, and were highly suspicious of British motives.[145] Conflicts between soldiers and citizens rapidly increased and the newspapers of the time were filled with reports of insults, fights, robberies, and rapes attributed (correctly or not) to the British troops.[146]

Against such regular forces, the colonists asserted a right of individual armament and self-defense they believed guaranteed by the Declaration of Rights. The Boston Evening Post, for 3 April 1769, announced that colonial authorities had urged the citizenry to take up arms, and, in reply to the claim that this request was unlawful, observed that:

It is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and who live in a province where the law requires them to be equipped with (p.590)arms, etc., are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.[147]

A few weeks later, the New York Journal Supplement referred to the same measure, observing that:

It is a natural right which the people have reserved for themselves, confirmed by their Bill of Rights, to keep arms for their own defense; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[148]

The outbreak of the Revolution itself was largely the result of British attempts to disarm the colonies. British enactment of the "Coercive Acts" in retaliation for the "Boston Tea Party" led to so vigorous a reaction that one British commander wrote to warn that "the opposite party are arming and exercising all over the country."[149] Britain responded by banning all export of muskets and ammunition to the colonies[150] and by ordering General Gage to consider measures to disarm residents of rebellious areas.[151] In September 1774, a party of British regulars quietly emptied a militia powder magazine in Massachusetts. Some colonists complained that this was "part of a well-designed plan to disarm the people"; others spread an incorrect report that six colonials had been killed during the raid.[152] The effect was electric: Approximately 60,000 armed men turned out from western Massachusetts alone, a force seven times the size of the entire regular army stationed in the colonies.[153]

The effect of the British efforts was to harden American resistance. The colonists began to form the "minutemen," a nationwide select militia organization. Radicals called for new elections for militia officers, and the resulting elections effectively purged pro-British officers from militia ranks and gave the radicals a firm hold on the militia.[154] Movements to upgrade (p.591)militia arms and organization spread rapidly. Patrick Henry's famed "give me liberty or give me death" speech, for instance, was in fact directed to his resolution "that a well-regulated militia, composed of gentlemen and freemen, is the natural strength and only security of a free government."[155]

The British efforts continued, however. In February 1775, a column of regular troops was dispatched to seize firearms stored in Salem, Massachusetts. A confrontation with local minutemen forced the column to back off to avoid bloodshed.[156] Two months later, Gage ordered a similar attempt against militia arms stored at Concord. Again, the minutemen mustered, and this time shots were fired. The British column was forced to withdraw into Boston with heavy casualties; only the arrival of a rescue force with light artillery enabled the column to escape swarms of unorganized but heavily armed colonists.[157] The British force was soon hemmed into Boston itself; an attempt to storm Breed's Hill on the outskirts of the city was met by murderous aimed fire[158] that left nearly forty percent of the attacking force casualties.[159] Any lingering doubts about the colonial love of firearms were resolved when Gage offered to permit Bostonians to transact business across his lines only if they first surrendered all firearms. The predominantly urban population turned in no fewer than 1,800 muskets and 634 handguns.[160] Nor did the British woes end here. Only a few (p.592)days before, Governor Dunmore of Virginia had successfully raided the Williamsburg powder magazine--and promptly found his mansion surrounded by armed militiamen.[161] Virginians now made common cause with New Englanders: Dunmore's mansion was soon sacked and 200 government muskets taken.[162] A war was on--and colonists would not forget that a major cause was the government's attempts at disarmament.

The role of the unorganized militia in the Revolution has been, until recently, largely unrecognized. The militia generally acquitted themselves poorly during the major organized battles of the war,[163] and were the subject of constant and bitter criticism.[164] Recent scholarship has demonstrated, however, that the militia played no small role in determining the Revolution's outcome. The militia's functions included seizing immediate control of local political machinery, harrassing isolated British units and thus diverting manpower from their overstretched and undermanned armies, suppressing Tory units and Indian raiding parties that would otherwise have required responses from Washington's equally undermanned regular units;[165] and, by cutting off foraging parties, causing a supply problem that would have forced the British to negotiate within a few years even absent defeats in the field.[166](p.593)

The widespread American ownership of arms did not go unnoticed in the mother country, where it was often cited by English Whigs as a reason to negotiate rather than use force. Pitt had early warned the House of Lords: "Three millions of Whigs, with arms in their hands, are a very formidable body.... The [Coercive] Acts must be repealed; they will be repealed; you cannot enforce them."[167] Thomas Paine, the colonial propagandist par excellance, taunted the British commander Lord Howe with a theme that would still be appropriate two centuries later: Faced with a well-armed guerilla force, regular troops control only the ground under their feet.[168]

The experience of the Revolution thus strengthened the colonial perception of a link between individual armament and individual freedom. The colonists, who perceived themselves as staunch Whigs,[169] continued to see free individual armament as Whig dogma.[170] The British government and the Tories who supported it[171] were seen as sponsors of arms confiscations and bans on the purchase of firearms.[172](p.594)

D. Rights and Duties of Arms Ownership Under the American Constitution

At the close of the Revolution, the former colonies' national government operated under the Articles of Confederation. These provided for only narrow powers at the national level, and reserved broad powers and duties to the individual states. The pre-1787 American guarantees of rights are, accordingly, to be found in the state bills of rights drafted during this period.

To be sure, not all of the States then adopted constitutions, let alone bills of rights; many were content to rely upon colonial charters.[173] But the prominence given the right to arms in those popularly ratified bills illustrates the importance attached to this right. The recognition of this right in state bills of rights has a second importance. It has been claimed that the Second Amendment's choice of words (for example, a right "of the people" and a reference to the importance of the militia) indicates a desire to protect the States against federal infringement of their right to possess an organized militia, not individuals in their rights to own arms.[174] The inclusion of parallel guarantees in state bills of rights entirely refutes this view. There was at this period no federal government; these state bills of rights were intended, not to grant power to the state governments, but to reserve individual rights from among the grants of state powers. The sole non-state political unit then existing, in whose favor such a reservation could run, was the individual. A careful examination of developments in the early state declarations of rights is thus vital.

The first of the state declarations of rights came in Virginia, in June 1776. The Virginia declaration was, however, hurriedly drafted and considered, and the records of the deliberations are all but nonexistent.[175] Thomas Jefferson had proposed elaborate guarantees of freedom, including a provision that no person thereafter entering the state might be held in slavery, and a guarantee that "No freeman shall ever be debarred the (p.595)use of arms."[176] The Virginia convention opted, however, for a simpler document written by George Mason. Unlike subsequent declarations, this instrument was phrased in exhortations and not commands. Suspension of laws was "injurious to their rights, and ought not to be exercised"; general warrants were "grievous and oppressive, and ought not to be granted"; jury trial "is preferable to any other, and ought to be held sacred"; freedom of the press "can never be restrained but by despotic governments."[177] In the same style, it simply recognized 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 ...."[178] Convention member James Madison would later use this exhortation as half, and only half, of what became the Second Amendment to the United States Constitution.

The Pennsylvania convention met in July 1776, and produced a more specific series of guarantees. Three noteworthy recognitions, missing in the Virginia declaration, were freedom of speech, the right to assemble peaceably, and the right to bear arms.[179] That the last was seen as an individual right is clear from the text. The first article of the Pennsylvania declaration recognizes "certain natural, inherent and inalienable rights," including that of "defending life and liberty." The thirteenth article recognizes that "the people have a right to bear arms for the defense of themselves and the State."[180] The intention to protect the individual is further illuminated by the Pennsylvania Constitution of 1776 itself, which recognized that "the inhabitants of this state shall have liberty to fowl and hunt in seasonable times on the lands they hold, and on all other (p.596)lands therein not inclosed ...."[181] When some, not surprisingly, observed, that this was not appropriate for a constitution, the Pennsylvania Evening Post replied that, under the British hunting acts:

[T]he possession of hunting dogs, snares, nets and other engines by unprivileged persons has been forbidden and, under pretence of the last words, guns have been seized. And though this is not legal, as guns are not engines appropriate to kill game, yet if a witness can be found to attest before a Justice that a gun has thus been used, the penalty is five pounds or three months' imprisonment ....

"Thus," the Evening Post article explained, are "freeholders of moderate estates deprived of a natural right. Nor is this all; the body of the people kept from the use of guns are utterly ignorant of the arms of modern war, and the kingdom effectually disarmed.... Is anything like this desired in Pennsylvania?"[182] The Pennsylvania format was adopted by Vermont's convention the following year.[183] As an explanation of these rights, Vermont's convention introduced its declaration with the observation that "all men ... have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty; acquiring, possessing and protecting property; and pursuing and obtaining happiness and safety."[184]

In apparent contrast to the Pennsylvania and Vermont approaches, North Carolina recognized a right to bear arms "for the defense of the State," and Massachusetts recognized a right to keep and bear arms "for the common defense."[185] The contrast may not have been intentional; Massachusetts also recognized, among the "natural, essential and unalienable rights" of (p.597)all free men "the right of enjoying and defending their lives and liberties."[186] One Massachusetts town meeting did go on record that "we deem it an essential privilege to keep Arms in Our House for Our Own Defense" and to complain that the "common defense" qualifier might someday be read to allow the government to "Confine all the fire Arms to some publick Magazine and thereby deprive the people of the benefit of the use of them."[187] Concerns such as these may have contributed to the rejection of the "common defense" and "defense of the state" qualifiers in subsequent state bills of rights--and ultimately, in the federal second amendment.[188]

As the foundations of the States were being fixed, those of the national government were being questioned. In early 1787, the Congress called a convention to propose amendments to the Articles of Confederation. The resulting convocation chose to draft an entirely new constitution. The incomplete notes of Constitutional Convention debates show little disagreement over the right to keep and bear arms. The primary concerns were establishment of a national government and the delineation of its powers vis-a-vis the States. Accordingly, debates over individual armament focused upon the need for federal versus state control over the militia.[189]

The final product of this militia-army dispute was a trade-off between Federalist and Anti-Federalist positions. The Federalists prevailed on the issue of regular army forces. These troops could not be kept by states and could be raised by the national government subject to a two-year limitation of appropriations.[190] Anti-Federalists prevailed on militia issues. Congress could not raise a militia. Rather it could only "provide for organizing, arming and disciplining" this force. It could only "govern" those in federal service, "reserving to the states respectively the appointment of officers, and the authority of (p.598)training the militia according to the discipline prescribed by Congress."[191]

The drafting of the United States Constitution only began the process. For months, the nation engaged in a heated dispute over the terms of the proposed Constitution. A major area of contention was the absence of a bill of rights. Such bills--although originating in English law[192] --had become an American obsession. Early forms of such bills were adopted in Massachusetts in 1636, New Jersey in 1677, and New York in 1683.[193] By 1787, Americans regarded such measures as normal inventions of prudence. Theophilus Parson emphasized that: "[A] bill of rights, clearly ascertaining and defining the rights ... which every member of a state hath a right to expect ... ought to be settled and established, previous to the ratification of any constitution for the state ...."[194]

Federalists sought to excuse the omission of a bill of rights in the proposed Constitution on the ground that because the national government was to be a government of limited powers, the failure to delegate expressly to it the authority to do such things as restrict freedom of the press or establish a religion left it without any color of authority to do such.[195] Spokesmen such as Thomas Jefferson replied to this argument that "[a] positive declaration of some essential rights could not be obtained in requisite latitude" without a bill of rights.[196] (Privately, Jefferson was less temperate on the subject, describing a constitution in which the Executive could take away the rights secured by such a bill as "a degeneracy in the principles of liberty to which I had given four centuries instead of four years.")[197] The lack of a bill of rights led Richard Henry Lee (who years before had first moved for the Declaration of Independence) and George Mason (drafter of the Virginia Declaration of Rights) to refuse to sign the convention's final (p.599)product.[198]

The ratification debates and concurrent newspaper and pamphlet wars give much insight into the contemporary understanding of the right to keep and bear arms. The relevant portions of these center upon four interrelated concerns--the power to raise armies, the question of the status of the militia, and the individual keeping and bearing of arms as a check on the standing army and new government, and the natural right of self-defense. Each concern merits detailed examination, as do the resulting demands by ratifying conventions for a bill of rights.

1. Individual Ownership of Arms as a Check on Standing Armies

The Anti-Federalists were quick to seize upon the obvious argument that, while standing armies were anathema to Americans, Section 8 of Article I of the proposed Constitution gave Congress carte blanche to "raise and support armies." Federalists were hard put to deny or to justify this provision. Instead, they sidestepped the issue by arguing that the universal armament of individual Americans removed the basis for concern: Standing armies were only dangerous to liberty where the people were disarmed and unable to resist. As Noah Webster contended in the first major Federalist pamphlet, aimed at the people of Pennsylvania:

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, and constitute a force superior to any bands of regular troops that can be, on any pretence, raised in the United States.[199]

On a similar theme, Segewick rejected the "chimerical idea ... that a country like this could ever be enslaved" and asked the Massachusetts convention to imagine whether an army bent upon enslaving the nation "could subdue a nation of freemen, who know how to prize liberty, and who have arms in their hands?"[200] Madison, in Federalist No. 46, invoked "the advantage of being armed, which the Americans possess over the (p.600)people of almost every other nation" and avowed that if European civilians were comparably equipped "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."[201] The Federalists thus sought to make universal citizen armament an assumption underlying the popular decision to ratify.

2. The Militia as Dependent upon Universal Armament

Federalists also advanced the existence of the militia as a counterpoise to the risks of a federal standing army authorized by the proposed Constitution. Hamilton, in Federalist No. 26, suggested that "[i]t is not easy to conceive a possibility that dangers so formidable can assail the whole union as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary."[202] Madison, in Federalist No. 46, argued that a standing army of 25,000 to 30,000 men would be offset by "a militia amounting to near a half million of citizens with arms in their hands, officered by men chosen from among themselves ...."[203]

The Anti-Federalists were not persuaded. Their fears centered upon possible phasing out of the militia in favor of a smaller, more readily corrupted select militia. Proposals for such a select militia had already been advanced by individuals such as Baron Von Steuben, Washington's Inspector General, who proposed supplementing the general militia with a force of 21,000 men given government-issued arms and special training.[204]

An article in the Connecticut Journal expressed the fear that the proposed Constitution might allow Congress to create select militias: "this looks too much like Baron Steuben's militia, by which a standing army was meant and intended."[205] In Pennsylvania, John Smiley told the ratifying convention that "Congress (p.601)may give us a select militia which will in fact be a standing army," and worried that, with this force in hand, "the people in general may be disarmed."[206] Richard Henry Lee, who was the first to raise the question of a bill of rights in the Constitutional Convention,[207] dealt extensively with this concern in his widely-read pamphlet, Letters from the Federal Farmer to the Republican.[208] Lee warned that liberties might be undermined by creation of a select militia that "[would] answer to all the purposes of an army."[209] He concluded that "the Constitution ought to secure a genuine and guard against a select militia by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usage of the states, all men capable of bearing arms ...."[210] It is noteworthy that Lee's role in the future Second Amendment did not end with his service in the convention or his subsequent advocacy of a bill of rights; he later served in the first Senate, which extensively redrafted and then voted out the Second Amendment in its current form.

3. Individual Citizen Armament as the Guarantee of Freedom

Underlying all these positions was a belief in the virtue of individual citizen armament as a guarantee of individual freedom. Few phrased the matter as clearly as Lee's Letters from the Federal Farmer: "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 ...."[211] Lee's opponent, James Madison, put it more fluently in Federalist No. 46:(p.602)

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate [state] governments ... forms a barrier against the enterprises of ambition .... Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust their people with arms.[212]

4. Individual Arms and Self-Defense as a Natural Right

Others saw the issue as a straightforward one of self-defense. "Common Sense," writing in the New York Journal and Daily Advertiser, argued that, under the proposed Constitution, "a citizen may be deprived of the privilege of keeping arms for his own defense" or denied jury trial in civil cases.[213] The emphasis on self-defense had been shared by the Pennsylvania and Massachusetts bills of rights, which had listed among the most fundamental rights of the citizens that of "defending their lives."[214] The issues relating to the militia and to individual armament were inevitably interrelated. Patrick Henry, for instance, referred to the militia as "our ultimate safety" while elaborating that "the great object is that every man be armed" and "everyone who is able may have a gun."[215] Framers such as George Mason saw individual armament as the central object and the militia as a peripheral issue. Mason warned the Virginia convention that the British plan had been "to disarm the people--that was the most effectual way to enslave them--but that they should not do it openly; but to weaken them and let them sink gradually, by totally disusing and neglecting the militia."[216]

5. Convention Demands for a Constitutional Guarantee of a Right to Keep and Bear Arms

While these and related concerns were not sufficient to prevent (p.603)ratification, they were sufficiently disturbing to lead a number of ratifying conventions to accompany their vote with a call for a bill of rights. These calls are especially relevant to any construction of the Bill of Rights, because they were the concrete manifestation of the people's desire for such guarantees and represent the perceived needs that the Bill of Rights was meant to address. The first demand for an individual right to bear arms was advanced in a minority report from the Pennsylvania ratifying convention, which emphasized:

That the people have a right to bear arms for the defense of themselves and their own state, or the United States or, 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 ....[217]

The Pennsylvania delegates thus not only stressed the individual nature of the right they wanted recognized, but also made it clear that the right to "bear" arms extended to self-defense and even hunting.[218] They did not quite secure enough votes to condition Pennsylvania's ratification upon such a call, but their report was circulated throughout the remaining states and was carefully studied by advocates of a bill of rights in the other conventions.[219] Madison, when drafting the Bill of Rights in the First Congress, worked from a reprint of state demands that was headed by the Pennsylvania report.[220]

The movement for a bill of rights next surfaced in Massachusetts, where patriot leader Samuel Adams proposed a demand that included the statement: "[t]hat the said constitution shall never be construed to authorize Congress ... to prevent the people of the United States who are peaceable citizens from keeping their own arms ...."[221] When New Hampshire gave the Constitution its needed ninth vote for ratification, it appended (p.604)a demand for a bill of rights to include the guarantee that "Congress shall never disarm any citizen except such as are or have been in actual rebellion."[222] Three later conventions, while giving the right of arms-bearing first listing, attached a guarantee of militia status. Virginia proposed "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."[223] New York proposed the same with the minor modification that the militia was to be one "including the body of the people capable of bearing arms."[224] North Carolina accompanied a refusal to ratify with a demand identical to Virginia's.[225]

With the close of the ratifying conventions, the Constitution secured both the necessary votes for its legal effect and the approval of the States necessary for its practical operation. At the same time, the call for a bill of rights was obvious and pressing. The call to include a right of arms bearing was no less pressing. State conventions had made no fewer than five appeals for such a right; such accepted rights as freedom of speech, of confrontation, and against self-incrimination could boast but three endorsements.[226]

E. The Second Amendment to the Federal Constitution

It is difficult for a Twentieth-Century American to understand the outlook of those who drafted the Bill of Rights. In order to understand those individuals, we must first understand that they lived at a time of changing political perceptions, which included a new theory of rights. In their age, the concept of "rights" was a living thing, part of the innermost life of all thinkers and those who aspired to understand the art of good government. Rights were not conceived of as codifiable-- trapped within a written document. Codification of such concepts clarifies them to a certain extent, but to a larger extent, it (p.605)kills them. In our own age, the concept of "rights of man" has become absorbed into that of "constitutional rights," consisting mainly of rights expressly listed in the Constitution and its amendments or recognized in specific decisions of the Judiciary. This approach would have been foreign to many late Eighteenth-Century thinkers, to whom the concept of "rights" was a part of their life and being, a concept to be lived rather than researched. Even Alexander Hamilton, scarcely the most liberal of the patriots, had seen no problem in replying to the Tory objection that because New York had no charter rights, it had no true rights:

The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole record of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.[227]

This view largely explains why, although Madison assumed the role as chief sponsor and drafter of the Bill of Rights, his references to the document are for the most part slighting. To Jefferson he wrote that, while he had favored such a Bill of Rights, "At the same time, I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for other reason than that it is anxiously desired by others."[228] He referred to existing bills of rights as mere "parchment barriers," which were cheerfully violated "by overbearing majorities in every state," and he was at most prepared to describe his creation as "calculated to secure the personal rights of the people so far as declarations on paper can."[229] The notion that Madison and his contemporaries thought that their Bill of Rights was intended to embody rights woven from the whole cloth may thus be discarded. Their intent was not to create entirely new rights; it was to embody a present consensus of opinion about the obvious rights of human beings.[230] Indeed, Madison began his drafting efforts (p.606)by purchasing a pamphlet that conveniently listed the amendments proposed by the state ratifying conventions, and his list of amendments was chosen from that pamphlet.[231] He did not intend any listed right, much less his right to keep and bear arms, to be superfluous: His correspondence makes obvious that he knew that amendments had to secure a two-thirds majority of each house of Congress and three quarters of the States, and he therefore included only rights that were "objectionable in the eyes of none."[232]

Of all the rights that Madison drafted, the right to keep and bear arms was then one of the least controversial. Freedom from establishment of religion forms an interesting contrast. New Hampshire and Massachusetts had, after all, guaranteed in their own constitutions a power of the state to employ Protestant teachers "of piety and morality" and to compel the people to attend their sermons.[233] Madison had, with cause, written Jefferson of his worry that even raising this issue in a bill of rights might prove counterproductive: "[T]he rights of conscience, in particular, if submitted to the public definition would be narrowed much more than they are likely ever to be by an assumed power."[234] Nor was freedom of the press sacrosanct: Jefferson had told Madison that "a declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability for false (p.607)facts printed." A dozen years after the Bill of Rights, New York courts not only upheld criminal libel prosecutions but ruled that truth was no defense.[235] Only three state conventions had proposed guarantees of freedom of speech, while proposals on the right to keep and bear arms surfaced in seven.[236]

Added to this background was the fact that the owning, collecting, and using of guns was then universal. Washington is estimated to have owned over fifty firearms, including rifles, shotguns and a number of pistols, while Jefferson's records show frequent reference to purchase, repair, and shooting of his guns, and Madison himself collected firearms on a smaller scale.[237] Ownership of firearms was regarded as both a personal pursuit and as the basis of character and citizenship. In later life, Madison wrote of oligarchies that they "could not be safe ... without a standing army, an enslaved press, and a disarmed populace."[238] Jefferson, on the one hand, wrote Washington that "one loves to collect arms" and, on the other, in advising a nephew on the virtues of exercise, wrote "As to the species of exercise, I recommend the gun.