18th and 19th-Century Commentary on the Right to Keep and Bear Arms

Prof. Eugene Volokh, UCLA Law School

 

  1. William Blackstone's Commentaries on the Laws of England (1765).

  2. St. George Tucker's Blackstone's Commentaries (1803).

  3. Joseph Story's Commentaries on the Constitution of the United States (1833) and Familiar Exposition of the Constitution of the United States (1840).

  4. Thomas Cooley's A Treatise on Constitutional Limitations (1868).

  5. Thomas Cooley's Principles of Constitutional Law (1898).  


     

    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.

     


     

    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 Treatise, Chap. X, Constitutional Protections to Personal Liberty, p. 350 (immediately following Right to Discussion and Petition):

    Right to bear Arms.

                  Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms.  A standing army is peculiarly obnoxious in any free government, and the jealousy of one has at times been demonstrated so strongly in England as almost to lead to the belief that a standing army recruited from among themselves was more dreaded as an instrument of oppression than a tyrannical king, or any foreign power.  So impatient did the English people become of the very army which liberated them from the tyranny of James II., that they demanded its reduction, even before the liberation could be felt to be complete; and to this day, the British Parliament render a standing army practically impossible by only passing a mutiny bill from session to session.  The alternative to a standing army is "a well-regulated militia," but this cannot exist unless the people are trained to bearing arms.  How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts. [fn1]

                  [fn1] In Bliss v. Commonwealth, 2 Lit. 90, the statute "to prevent persons wearing concealed arms" was held unconstitutional, as infringing on the right of the people to bear arms in defence of themselves and of the State.  But See Nunn v. State, 1 Kelly, 243.  As bearing also upon the right of self-defence, see Ely v. Thompson, 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for "lifting their hands in opposition" to a white person was held unconstitutional.

                  And 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.

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