Cases and Materials on the Right to Keep and Bear Arms

Prof. Eugene Volokh, UCLA Law School

 

(Note:  This site is still under construction.  Many links are not yet in place.)

      Click here for Textbook             Click here for Reference Materials      

"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."  Second Amendment to the U.S. Constitution. "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."  Article 1, § 21 of the Pennsylvania Constitution (enacted 1790). "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use."  Article I, § 20 of the Delaware Constitution (enacted 1987).

Introduction

              The U.S. Constitution guarantees a "right to keep and bear arms"; so, in various ways, do 43 of the 50 state constitutions.  What do these provisions mean?

              This question is interesting both for its own sake, and for what it can tell us about constitutional law and constitutional interpretation.  There's little precedent on these provisions, so studying them gives us a rare chance to think about text, original meaning, tradition, and other modes of interpretation, without the obsessive focus on Supreme Court case law that characterizes much of the work on, say, the Fourteenth Amendment or the Free Speech Clause.  Studying these provisions also lets us think about the scope of constitutional rights -- what arms may be borne? when? with what exceptions? -- without being distracted by familiar buzzwords like "strict scrutiny."

              Recent years have seen an explosion of scholarship on the Second Amendment, and some work on state provisions.  (Constitutional scholarship in the U.S. tends to be disproportionately and depressingly focused on the federal.)  But most Constitutional Law casebooks don't even mention the right to keep and bear arms -- the one that says the most on this subject gives it four pages.  Teachers who want to focus on this matter have had to develop their own material; scholars, students, and citizens have likewise lacked a single source that could introduce them to the subject.

              This Web site aims to fill this gap, focusing mostly on source materials, though supplemented with some excerpts from recent scholarship.  It's structured as follows:

A.  Restraints on Federal Power:  The Second Amendment

  1. Four alternative theories of Second Amendment.

           Text and original meaning.

  2. "the right of the people" -- whose right?
  3. "to keep and bear arms" -- what conduct is protected?
  4. The two clauses -- how do they relate to each other?
  5. "A well-regulated militia" -- what is it?
  6. "being necessary to the security of a free State" -- why was the militia thought necessary?

           Precedent.

  7. Supreme Court precedents.
  8. U.S. Court of Appeals precedents.

           Changed circumstances arguments and prudential arguments.

  9. Should the Second Amendment be enforced today?

           Turning theory into doctrine.

  10. "shall not be abridged" -- what restrictions qualify as "abridgements"?

B.  Restraints on State Power:  Is the Second Amendment Incorporated into the Fourteenth?

  1. Incorporation generally.
  2. The original understanding.
  3. The "ordered liberty" test.

C.  Restraints on State Power:  State Constitutions

  1. Differing texts
  2. State constitutional rights vs. federal constitutional rights
  3. Translating text into doctrine -- what restrictions do the state provisions ban?

D.  Further topics

  1. The Ninth Amendment, the right to self-defense, and other broad rights provisions
  2. Does the right to keep and bear arms look different from the perspective of racial minorities?
  3. Does the right to keep and bear arms look different from the perspective of women?
  4. The right to keep and bear arms and tort claims against firearms manufacturers.
Reference materials
Calls for right to keep and bear arms from state ratifying conventions. Contemporaneous state constitutional provisions containing a purpose clause and a directory clause.
Relevant numbers of The Federalist. Views of 1700s and 1800s commentators. All Supreme Court decisions mentioning the Second Amendment (excerpted).
State constitutional provisions, by state. State constitutional provisions, by date.
About the authors. Bibliography.
 


 

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."

              What does the Second Amendment mean?  Or, to put it another way (is it a different way?), how should the Supreme Court interpret the Second Amendment?

              There are four main competing theories of the Second Amendment:

  1. The States' Right Theory:  The Second Amendment guarantees the rights of the states to maintain their own militias, and prohibits the federal government from disarming the state militias.  Under this theory, the right "belongs" to the states, in the sense that violating the right is an injury to the state, and that only a state can sue to vindicate this right.

  2. The National Guard Members' Right Theory:  The Second Amendment guarantees the rights of those people who belong to a state-established National Guard-type body, and prohibits the federal government from disarming these people to the extent that they are acting in their capacities as members of these bodies.  Under this theory, the right belongs to individual citizens, but only those whom the state makes members of this body, and only to the extent that the state requires them to use arms within this body.

  3. The Individual Right Aimed at Deterrence of Government Oppression Theory:  The Second Amendment guarantees the rights of pretty much all people (perhaps excluding felons, minors, and maybe noncitizens), and prevents the federal government from disarming them.  The purpose of this right is to deter government oppression, on the theory that the government is less likely to oppress people who have the power to fight back.  The right belongs to each person.

  4. The Individual Self-Defense Right Theory:  The Second Amendment guarantees the rights of pretty much all people, and prevents the federal government from disarming them.  The purpose of this right is to enable people to defend themselves against criminals.  The right belongs to each person.
Obviously, one can also imagine some combinations of these theories, for instance that the right is aimed at deterrence of government oppression and at enabling self-defense against criminals.

              The choice of theory matters.  First, and most obvious, some of the theories assign the right to different entities; who is protected depends on the theory you use.

              Second, the theories have different implication for the scope of the right.  The purpose of a right influences our judgment about which laws "abridge" the right and which don't.  If we think the freedom of speech is aimed at protecting democratic self-government, we might (though need not) conclude that banning clearly non-politically-themed art is not an "abridgement" of free speech, because such a ban doesn't contradict the right's purpose.  On the other hand, if we think the freedom of speech is aimed at protecting self-expression, we would be more likely to conclude that a ban on such art is an "abridgement," because it does contradict the right's purpose.

              Likewise, if the purpose of the right to keep and bear arms is only self-defense, then banning fully automatic weapons might not be an abridgement; these weapons are probably not significantly more useful for self-defense than are other firearms, so the ban wouldn't seriously interfere with the accomplishment of the right's purpose.  But if the purpose of the right includes deterrence of government tyranny, then it would be more plausible to call the full-auto ban an abridgement.

              As you read the remaining materials, ask yourself to what extent they support and to what extent they oppose each theory.  Each theory has to face different objections.  For instance (sticking for a moment just to a text), the states' right theory runs into the fact that the right is said to be "the right of the people," not the right of the states.  On the other hand, the individual self-defense right theory runs into the fact that the Militia Clause speaks of "the security of a free State."  Neither objection may be fatal to either theory, but they do raise difficulties that need to be considered.

              Which arguments can you construct for and against each theory?  Which arguments seem the most plausible.  


 

"The right of the people"

              The second clause of the Second Amendment says the right belongs to "the people," but what does "the people" mean?

The Bill of Rights

              The phrase "the right of the people" appears in three other places in the bill of rights:

              The First Amendment:  Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

              The Fourth Amendment:  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .

              The Ninth Amendment:  The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

              The term "the people" outside "the right of the people" context appears in four other places:

              The Preamble:  We the People of the United States, in Order to form a more perfect Union . . . do ordain and establish this Constitution for the United States of America.

              Article I, section 2, clause 1:  The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.

              The Tenth Amendment:  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

              The Seventeenth Amendment (1913):  The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof . . . .

              Questions:

  1. What does the term "the people" mean in these contexts?

  2. Is its meaning in some contexts more germane to interpreting the Second Amendment than it is in other contexts?

  3. Is it relevant that the terms "the people" and "the States" are both used in the Tenth Amendment.

The Supreme Court on "the people"

              One of the Court's few mentions of the Second Amendment came in United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990).  The question in the case was whether the Fourth Amendment protected foreign citizens on foreign soil from unreasonable searches, or applied only to U.S. soil or U.S. residents.  The majority, per Chief Justice Rehnquist, said the following:

              For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. . . .  The Fourth Amendment provides:  "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people."

              Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," "the people" seems to have been a term of art employed in select parts of the Constitution.  The Preamble declares that the Constitution is ordained and established by "the People of the United States."  The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people."  See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States").

              While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

State Constitutional Provisions

              Several contemporaneous state constitutions also had provisions mentioning "the right of the people to keep and bear arms," or using similar language:

              Connecticut:  Every citizen has a right to bear arms in defense of himself and the state (1818; Connecticut had no Constitution until 1818).

              Kentucky:  [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792).

              Massachusetts:  The people have a right to keep and to bear arms for the common defence (1780).

              North Carolina:  [T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power (1776).

              Pennsylvania:  The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (1790).

              Rhode Island:  The right of the people to keep and bear arms shall not be infringed (1842; Rhode Island had no Constitution until 1842).

              Tennessee:  [T]he freemen of this State have a right to keep and bear arms for their common defence (1796).

              Vermont:  [T]he people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777).

              Questions:

  1. What arguments are there for considering the meaning of these state provisions in interpreting the Second Amendment?  What arguments are there for not paying much attention to the meaning of these provisions?  Which are more persuasive?

  2. If we are to consider the meaning of these provisions, what is their meaning?  Which of the four theories are they likely to embody?  Are any of the four theories less plausible when one is considering a state constitution that protects rights against infringement by the state government?
 


 

"to keep and bear Arms"

              [To be written.]  


 

The two clauses -- how do they relate to each other?

              The Second Amendment has a somewhat unusual format for a provision of the U.S. Constitution.  Most provisions are simply declarative sentences:  "Congress shall make no law respecting an establishment of religion . . . ."  "Congress shall have the power to . . . ."  They rarely have an extra clause specifying the purpose.

              The two arguable exceptions are the Preamble to the Constitution, which explains the reasons for the Constitution, and the Copyright/Patent Clause, which gives Congress the pwoer "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."  Neither, however, are particular close in wording to the Second Amendment.

              How should one interpret this sort of two-clause provision -- "A thing being necessary to some purpose, this-and-such shall (or shall not) be done"?  A few possible readings:

  1. The opening clause is a mere declaration of something that the drafters believed to be fact, and has no legally binding value.  The "shall not be done" is what commands the government to not do something, and thus is the only legally operative portion.

  2. The opening clause is a declaration of something that the drafters believed to be fact, and also explains the problem that the drafters were trying to solve with the second clause.  We should interpret the second clause with this problem in mind, but always assuming -- as the framers did -- in the declaration contained in the opening clause.

  3. The opening clause is a declaration of something that the drafters believed to be fact.  The second clause is legally binding on us only so long as we believe the drafters' assertion to be true.  If we believe the drafters' assertion is false, the second clause -- in fact, the entire provision stops being legally relevant. Which reading is the more plausible?

    State Constitutions

                  Fortunately, in answering this question, we have quite a few clues from other constitutional provisions of the time.  Though such two-clause constructions are very rare in the U.S. Constitution, they were present in many state constitutions.  Here is a sample (click here for a more complete list):

                  Rhode Island (1842), art. I, § 20:  The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty . . . .  [The 1842 Constitution was the first one Rhode Island had; until 1842, it was governed under the pre-revolutionary colonial charter.]

                  Massachusetts (1780), art. XVI:  The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.  Likewise in New Hampshire (1784), pt. I, art. XXII ("The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved").

                  Massachusetts (1780), art. XXI:  The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation of prosecution, action or complaint, in any other court or place whatsoever.  Likewise in New Hampshire (1784), pt. I, art. XXX; Vermont (1786), chap. I, art. XVI (with "either house of" omitted).

                  New Hampshire (1784), pt. I, art. XVII:  In criminal prosecutions, the trial of the facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .

                  Northwest Ordinance (1787), art. III:  Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.  [Note that this provision, unlike the ones above, is a "shall" rather than a "shall not," and may thus be less judicially enforceable.]

                  How should the two-clause constructs in these constitutional provisions should be interpreted?  For instance, today many people believe that "the trial of the facts in the vicinity where they happen" is actually not at all essential to life or liberty; in fact, some believe that it's often counterproductive.  How should the New Hampshire provision be interpreted?  Which of the three possible readings of two-clause provisions would you endorse here?

    United States v. Miller, 307 U.S. 174 (1939)

                  The Supreme Court's only extended 20th-century discussion of the Second Amendment came in Miller.  We will see Miller again many times, but for now the relevant excerpt is this.  (As you read it, recall that we have not yet studied what the Second Amendment means about "militia"; we will do so in the very next section.  For now, reserve judgment on that question.)

                  In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.  Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.  Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

                  The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."  With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made.  It must be interpreted and applied with that end in view.

                  Questions:

    1. Are you persuaded by the Court's conclusion that the directory clause should be interpreted "with that end [the purpose specified in the purpose clause] in view"?  Can you see reasons why this should not be the case?  Why it should be the case?

    2. What does it mean to interpret the directory clause "with that end in view"?  Should the purpose clause influence our view of what "the right of the people" means?  Of what "to keep and bear arms" means?  Of what "shall not be abridged" means?

    3. How would you interpret the directory clause of the New Hampshire Trial in the Vicinity Clause "with that end [the purpose specified by its purpose clause] in view"?
     


     

    "A well-regulated militia"

                  According to the Random House Dictionary of the English Language (2d ed., unabridged, 1787), "militia" today has the following meanings:

    1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.

    2. a body of citizen soldiers as distinguished from professional soldiers.

    3. all able-modied males considered by law eligible for military service.

                  Which of these meanings (or what other meaning) did "militia" have in 1787?  Presumably this historical meaning would be at least relevant to the analysis, just as the Double Jeopardy Clause's reference to "jeopardy of life or limb" is interpreted in light of what the phrase meant in 1787 -- jeopardy of criminal conviction, not just jeopardy of the death penalty or dismemberment.  Consider the following pieces of evidence.

    The demands for a Bill of Rights from the state ratification conventions

                  Five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress.  All these demands included a right to keep and bear arms, and four of them actually referred to the militia.  (Click for more details.)  Here, in relevant part, is their text, with the reference to the militia highlighted:

                  Virginia:  . . .  Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.  That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

                  New York:  . . .  That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Marital Law except in time of War, Rebellion or Insurrection.  That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

                  North Carolina:  Almost identical to Virginia demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms."

                  Rhode Island:  Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York.

    United States v. Miller, 307 U.S. 174 (1939)

                  Miller, which we saw in the previous section, also has a holding -- one of the few binding precedents on the meaning of the Second Amendment -- as to what "Militia" means:

                  The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.  These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.  "A body of citizens enrolled for military discipline."  And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.  [Citing further sources, e.g., the Virginia Act of October 1785 providing for a Militia of "all free male persons between the ages of eighteen and fifty years," with certain exceptions.]

    Militia Act

                  The original Militia Act of 1792 provided that:

                  The Militia Act that is currently in effect, 10 U.S.C. § 311 (enacted 1956, amended 1958), provides that:

                  (a)  The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32 [***], under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are --

                  (1) the organized militia, which consists of the National Guard and the Naval Militia; and

                  (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

                  Many of the male readers of this text will doubtless be surprised to learn that they are officially militia members.  (Query:  Under the Court's modern Equal Protection Clause doctrine -- established long after 1958 -- would women between 17 and 45 who are not members of the National Guard also be considered militia members?)

                  Questions:

    1. What does the term "militia" seem to mean?

    2. How does such a reading of "militia" fit with your reading of the Keep and Bear Arms Clause?

    "Well regulated"

                  So far, we've investigated who the militia were supposed to be.  What, though, does it mean for this militia to be "well regulated"?  There are no definitions for the term in 1800s legal dictionaries, nor in any caselaw of that era.  We do, however, have various examples of usage:

                  Some other mentions of "regulation" of military forces in early constitutions and in the Federalist:

                  U.S. Constitution, art. I, § 8:  The Congress shall have Power . . .  To make Rules for the Government and Regulation of the land and naval Forces;

                  Articles of Confederation (1781):  No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up by any state, in time of peace, except such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents . . . .

                  And some references to "well-regulated" in other documents:

                  Tennessee Constitution (1834):  A well-regulated system of internal improvement ["internal improvement" here refers to public works] is calculated to develop the resources of the State, and promote the happiness and prosperity of her citizens; therefore, it ought to be encouraged by the general assembly.

                  Federalist No. 6:  Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind.  Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times.  Sparta was little better than a well regulated camp; and Rome was never sated of carnage and conquest. Federalist No. 29:  See below.

                  Williams v. Suffolk Ins. Co., 38 U.S. 415 (1839):  If this were not the rule, cases might often arise in which, on the most important questions of foreign jurisdiction, there would be an irreconcilable difference between the executive and judicial departments. . . .  No well regulated government has ever sanctioned a principle so unwise, and so destructive of national character.

                  Mayor v. Miln, 36 U.S. 102 (1837):  The object of all well-regulated governments is, to promote the public good, and to secure the public safety . . . .

                  Olney v. Arnold, 3 U.S. 308 (1796), speaking of "the policy of all well regulated, particularly of all republican, governments . . . ."

                  Questions:

    1. What are the possible interpretations of "well regulated"?  To what extent do these sample usages support such interpretations?
     


     

    "necessary to the security of a free State"

                  We should by now have some sense of what "the right of the people to keep and bear arms" and "a well-regulated militia" might mean; but it's hard to feel fully confident about the meaning without asking why the Framers thought a well-regulated militia was necessary to the security of a free State, and why the right of the people to keep and bear arms was somehow connected to all this.  If the Framers' vision of the right's role (and the militia's role) is consistent with our reading of the text, this should reinforce our confidence that we have indeed found at least the original meaning -- if not necessarily the proper current interpretation -- of the Amendment.  If it's inconsistent, then it should sow some doubt.

    Blackstone

                  William Blackstone's Commentaries on the Laws of England, published in 1765, was widely read in the Colonies, and is generally seen as having exerted immense influence on the Framers' vision of the rights of Englishmen.  The English Bill of Rights of 1688 provides "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law"; the Second Amendment seems to at least partly echo the English right, though without the qualification to Protestants and to arms suitable to citizens' condition and allowed by law.  It stands to reason that the 1791 American legal culture understood the purposes of the Second Amendment as linked to the purposes of the English right.

                  Blackstone's description of the right comes in his discussions of the rights of the subject.  He begins by talking about three "absolute rights" -- personal security, personal liberty, and private property -- and then goes on to discuss five "auxiliary rights":

                  In the three preceding articles we have taken a short view of the principal absolute rights [personal security, personal liberty, private property] which appertain to every Englishman.  But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment.  It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.

                  1.  The constitution, powers, and privileges of parliament . . . . 2.  The limitation of the king's prerogative . . . .

                  3.  . . . [A]pplying to the courts of justice for redress of injuries.

                  4.  . . . [T]he right of petitioning the king, or either house of parliament, for the redress of grievances.

                  5.  The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.  Which is also declared by the same statute . . . and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

                  . . .  [T]o vindicate [the three primary rights], when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.

    The Federalist

                  The Federalist, of course, is the collection of 85 articles in support of the Constitution written by James Madison, Alexander Hamilton, and John Jay under the pseudonym "Publius."  The articles were published in 1787 in New York newspapers, and obviously didn't mention the Second Amendment, which was still four years in the future.  The Bill of Rights, of course, was proposed to remedy a perceived inadequacy in the original Constitution.  Still, the Federalist tells us something about contemporary understandings of the militia and its role.

                  Note that the original Constitution's Militia Clauses are as follows:

                  Art. I, sec. 8:  The Congress shall have Power . . .

                  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

                  To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by the Congress; . . .

    The Federalist No. 29, by Alexander Hamilton (some paragraph breaks added):

                  If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security.  If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions.  If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force.  If it cannot avail itself of the former, it will be obliged to recur to the latter.  To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. . . .

                  By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government.  It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power.  What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen.  But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse:

                  "The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution.  A tolerable expertness in military movements is a business that requires time and practice.  It is not a day, or even a week, that will suffice for the attainment of it.

                  "To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.  It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States.  To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured.

                  "Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.

                  "But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia.  The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need.  By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it.

                  "This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.  This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

    The Federalist No. 46 (James Madison) (some paragraph breaks added):

                  [Madison is explaining why the federal government will be unable to suppress state governments:]

                  The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition.  The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger.  That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

                  Extravagant as the supposition is, let it however be made.  Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.  The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms.  This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.

                  To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.  It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.  Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.

                  Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.  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 the people with arms.  And it is not certain, that with this aid alone they would not be able to shake off their yokes.

                  But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, 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.  Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.

                  Questions:

    1. What sort of militia -- and what size militia -- does Hamilton envision?  What about Madison?

    2. What purposes does Hamilton see the militia fulfilling?  What about Madison?

    St. George Tucker

                  St. George Tucker's Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia (1803), contained the earliest prominent commentary on the U.S. Constitution.  Tucker taught law at the University of William and Mary, and was a Virginia state judge.  The following is from book I of his commentaries, p. 143, and p. 300 of the Appendix (citations omitted, some paragraph breaks added):

    [Annotation to Blackstone's discussion of the right to have arms as the fifth and last auxiliary right:]

                  The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence [fn40] suitable to their condition and degree, and such as are allowed by law. [fn41]

                  [fn40] The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.

                  [fn41] Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.  The commentator himself informs us, "that the prevention of popular insurrections and resistence [sic] to government by disarmking the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."

                  [A separate discussion in an Appendix, specifically about 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.

                  This may be considered as the true palladium of liberty . . . .  The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.  Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.

                  In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes.  True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game.  So that not one man in five hundred can keep a gun in his house without being subject to a penalty.  [Editorial note:  I understand that this last sentence is considered by some historians to be an exaggeration.]

    Story

                  U.S. Supreme Court Justice Joseph Story's Commentaries on the Constitution of the United States (1833) was the leading constitutional treatise of the first half of the 19th century.  He also wrote Familiar Exposition of the Constitution of the United States (1840), a popularization and abridgement of his Commentaries.  The following text is from the Familiar Exposition, but all except the first paragraph is borrowed verbatim from the Commentaries:

                  The next amendment is, "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."  One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.  The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere primvate convenience, this powerful check upon the designs of ambitious men.

                  The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject.  The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.  It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.  The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.  And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations.  How it is practicable to keep the people duly armed without some organization, it is difficult to see.  There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. [fn1]

                  It would be well for Americans to reflect upon the passage in Tacitus, (Hist. IV. ch. 74):  "Nam neque quies sine armis, neque arma, sine stipendiis, neque stipendia sine tributis, haberi queunt."  Is there any escape from a large standing army, but in a well disciplined militia?  There is much wholesome instruction on this subject in 1 Black. Comm. ch. 13, p. 408 to 417.

                  A similar provision in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law."  But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.

    Cooley

                  Michigan Supreme Court Justice Thomas Cooley was the leading constitutional commentator of the late 1800s; he wrote a treatise entitled A Treatise on Constitutional Limitations (1868), which he then revised many times over the next three decades, and an abridgment entitled Principles of Constitutional Law (1898).  The following is from the Principles:

                  Section IV. -- The Right to Keep and Bear Arms.

                  The Constitution. -- By the Second Amendment to the Constitution it is declared that "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 amendment, like most other provisions in the Constitution, has a history.  It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease.  The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.

                  The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent.  The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon.  But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check.  The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.  But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.

                  Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army.  A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.

                  What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.

                  Questions:

                  [Include some.]