Do you and I have the right to bear arms? The Bush administration's
Justice Department recently answered with an emphatic ``Yes.''
As gun-control advocates cried foul and gun-rights supporters
cheered, the government filed Supreme Court briefs May 6 in two cases,
officially weighing in on the debate about the Second Amendment to the
federal Constitution. The Justice Department rejected the executive
branch's longtime position that the right to own guns is a collective
right given to state militias, claiming instead that the right belongs
to individual gun owners.
The ``current position of the United States is that the Second
Amendment more broadly protects the rights of individuals, including
persons who are not members of any militia or engaged in active
military service'' to ``possess and bear their own firearms,'' the
Justice Department said.
The briefs acknowledged that the government was reversing several
decades of its own constitutional policy, as well as challenging trends
in the lower courts since the 1930s.
This policy, though a break with the recent past, fits into a long
historical tradition. Americans from the Founding Fathers to the early
1900s took for granted that the right to bear arms is a right of
individuals -- not of the states or the National Guard.
This view of the Second Amendment as securing an individual right
can be seen in the works of leading early constitutional commentators,
such as Supreme Court Justice Joseph Story (who was educated in the law
in the decade after the Bill of Rights was enacted), St. George Tucker
and Thomas Cooley. It is supported by similar provisions in states'
bills of rights, and in state legislatures' calls for a federal Bill of
The individual rights position was the nearly unanimous view of
courts and commentators throughout the 1800s, and was endorsed by
Congress in the Freedmen's Bureau Act of 1866.
It was only in the 1930s that elite legal opinion began to shift, as
lower federal courts started to embrace the states' rights view. Lower
court decisions in the 1970s and 1980s reinforced this interpretation.
The Supreme Court has never definitively resolved the question, making
the Justice Department's switch particularly significant.
Though the Bush administration's position supports the individual
right to own a gun, the government briefs stress that this right is
nevertheless limited, like freedom of speech and other individual
rights. Just as libel and child pornography are not protected by the
First Amendment, neither is ownership of guns by violent felons
protected by the Second Amendment. Many current gun-control laws would
be upheld even under the government's new position.
But if the Bush administration's Second Amendment theory becomes
law, some changes are likely. The Washington, D.C., handgun ban, for
example, would probably be struck down as too broad. Similar bans in
Chicago and other cities also would be vulnerable, provided that the
Supreme Court follows its past practice and applies the restrictions of
the Bill of Rights not only to the federal government, but also to the
EUGENE VOLOKH is a professor at the UCLA School of Law. He
specializes in constitutional law and wrote this article for
WHO POSSESSES THE RIGHT TO BEAR ARMS? IN
ONE VIEW, IT'S THE INDIVIDUAL, NOT THE STATE
The Bush Justice Department's May 6 decision to support an individual's right to
own guns independent of a militia is a reversal of previous administrations'
positions. But the author argues that there is ample evidence to show that the
individual right to own guns was well-accepted in the 1700s and 1800s. He lays
out his evidence in the chronology below, and also shows how opinions shifted in
the 1900s, when the first major federal gun-control laws were passed.
1765: Sir William Blackstone, a powerful influence on the Framers' thinking,
publishes his famous ``Commentaries on the Laws of England.'' He describes the
British right to bear arms, a predecessor to the Second Amendment, as one of
``the rights of the subject'' -- in other words, an individual right.
1776: Pennsylvania enacts the first state bill of rights, which protects the right to
bear arms gun-ownership right from being abridged by the state. This provision
and similar ones in other early state constitutions are evidence that the right to
own guns was aimed at constraining state governments rather than empowering
them to form militias.
1788: New York, North Carolina and Virginia demand that Congress secure the
right to bear arms, and they define ``militia'' as the citizenry at large. Rhode Island
makes a similar demand in 1790.
1791: The U.S. Bill of Rights is enacted, including the Second Amendment: ``A
well-regulated militia, being necessary to the security of a free state, the right of
the people to keep and bear arms shall not be infringed.'' The phrase ``the right of
the people'' is also used in the First and Fourth amendments, which secure
individual rights to petition the government and to be free of unreasonable
searches and seizures.
1792: Passage of the federal Militia Act, which defines ``militia'' as all able-bodied
white male citizens ages 18 to 45 -- not as a small National Guard-like group.
Constitutional amendments passed after the Civil War eliminate the racial
1803: St. George Tucker, the first prominent American legal commentator,
publishes his edition of Blackstone's Commentaries, applying them to U.S.
constitutional law. He says the Second Amendment prevents the government
from disarming the citizenry.
1833: U.S. Supreme Court Justice Joseph Story, the leading American
constitutional commentator of the early 1800s, in his ``Commentaries on the
Constitution of the United States,'' describes the Second Amendment right to bear
arms as belonging to ``the citizens,'' and echoes Tucker's view.
1866: Congress enacts the Freedmen's Bureau Act. Part of it aims to protect the
``constitutional right to bear arms'' for black people, alongside their rights to
``personal liberty'' and to owning property.
1880: Michigan Supreme Court Justice Thomas Cooley, the leading American
constitutional scholar of the 19th century, stresses in his ``General Principles of
Constitutional Law'' that the right to own guns belongs to all the people, not just a
1934: The National Firearms Act -- the first major federal gun-control law -- is
enacted. It is mostly aimed at weapons associated with organized crime, such as
machine guns and sawed-off shotguns.
1939: The U.S. Supreme Court, in United States vs. Miller, says the Second
Amendment protects only those arms that have ``some reasonable relationship
to the preservation or efficiency of a well-regulated militia.'' But the court also
stresses that ``militia'' means ``all males physically capable of acting in concert
for the common defense.'' The court does not say that the right belongs to the
states or the National Guard. It is the court's only modern Second Amendment
decision. (From 1820 to 1998, the court has referred to the Second Amendment
28 times, usually tangentially. Twenty-two of the 28 opinions quote only the
right-to-bear-arms clause, without mentioning the militia language.)
1942: Two lower federal court decisions treat the Second Amendment as securing
a states' right, beginning a trend that continues to this day.
1956: The current Militia Act is passed, defining ``militia'' as all male citizens age
17 to 45. (Given recent constitutional decisions, today this probably includes
1960: Sens. John F. Kennedy and Hubert Humphrey express support for the
``right of each citizen'' to bear arms. Their views illustrate that even as lower
federal courts adopted a states-right view of the Second Amendment, many
politicians and average citizens continued to view the right as an individual one.
1968: The Gun Control Act of 1968 is enacted. It requires professional gun dealers
to get licenses, bans felons from possessing guns and sets up a variety of other
gun controls. This marks the start of a 30-year period in which Congress enacts a
string of gun-control laws.
1986: The bipartisan Firearms Owners' Protection Act is enacted. It specifically
asserts that the right to bear arms is an individual right.
2000: Liberal legal scholar Laurence Tribe of Harvard Law School concludes, in his
widely respected Constitutional Law treatise, that the Second Amendment secures
a individual right to own guns. His position is in line with many other recent legal
writers, conservative and liberal alike.
2001: In United States vs. Emerson, the 5th U.S. Circuit Court of Appeals rules
that ``the Second Amendment does protect individual rights,'' but allows
``limited, narrowly tailored specific exceptions or restrictions.'' This is the first time
a federal court of appeals adopts the individual-rights view. Emerson was accused
of possessing a firearm while under a domestic restraining order.
2002: The Department of Justice adopts the individual-rights view in two filings to
the Supreme Court, one on the Emerson case and another on a case involving a
ban on unlicensed machine gun possession.
This timeline is by Eugene Volokh. For the documents listed in this timeline, go to http://volokh.blogspot.com/ and click on ``Sources on the Second Amendment.'