The Second Amendment in the Nineteenth Century

BYU Law Review BYU Law Review

Volume 1998 Issue 4 Article 2

11-1-1998

The Second Amendment in the Nineteenth Century The Second Amendment in the Nineteenth Century

David B. Kopel

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David B. Kopel,

The Second Amendment in the Nineteenth Century

, 1998 BYU L. Rev. 1359 (1998).

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* Adju nct Professor of Law, New York Univer sit y La w Sch ool, 1998; Resea rch

Director, Independence Inst itute, Golden, Colorado. J.D., 1985, University of Michigan;

B.A. in Histor y 1982, Brown Univers ity. I would like to thank Jim Win chest er, J .D.,

for outstanding research assistance. Valuable aid wa s also pr ovided by Pa ul

Blackman, David Caplan, Clayton Cramer , Brannon Denning, Robert Dowlut, Mark

Fuller, Richard Gr iffith s, S tephen Ha lbr ook, Scott Ha tt ru p, Ch ar les B. Ka tes, Don

Kates, Jerry & Dolores Kopel, Nelson Lund, Joseph Olson, Daniel Polsby, Glenn

Harlan Reyn olds, Doug Spitt ler , William Van Alst yne, Eugene Volokh, and the

Cincinnati Law Lib ra ry Associa tion .

1359

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The Second Amendment in the Nineteenth

Century

David B. Kopel

I. INTRODUCTION .................................1362

II. THE EARLY GIANTS: TUCKER, RAWLE, AND STORY ......1370

A. S t. George Tucker: The Am erican Blackstone ......1370

1. T ucker’s backgrou nd ......................1370

2. The central role of Tucker’s American Blackstone1371

3. Tucker on the right to arms in Bla ckst one .....1373

4. T ucker’s appen dix on the Am erican Con stitution 1375

5. T ucker’s exposition of the Second Am endment ..1377

B. Houston v. Moore ...........................1379

C. William Rawle ..............................1384

D. Joseph Story ...............................1388

1. The Second Amendment in Story’s Commentaries1389

2. The Second Amendment in Story’s Familiar

Exposition ...............................1393

3. The federal militia powers in Story’s

Commentaries ...........................1396

E. Other Pre-1850 Sources ......................1397

1. Henry St. George Tucker ...................1397

2. B enjam in Oliver ..........................1399

3. James Bayard ...........................1400

4. Francis Lieber ...........................1402

5. Elliot’s Debates ..........................1404

6. Webster’s Dictionary .......................1404

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1360 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

III. STATE CONSTITUTIONS AND CASE LAW .............1409

A. State Constitutions ..........................1409

B. S tate Case Law .............................1415

1. T ennessee ...............................1416

2. Arkansas ................................1422

3. Georgia .................................1425

4. Louisiana ...............................1427

5. North Carolina ...........................1428

6. Texas ...................................1429

7. Illinois .................................1431

8. West Virginia ............................1432

9. State case law sum mary ...................1432

IV. ANTEBELLUM YEARS AND THE CIVIL W AR ...........1433

A. Dr ed Scot t .................................1433

B. The Hum an Rights Advocates ..................1435

1. L ysan der S poon er .........................1436

2. Joel Tiffany .............................1440

C. Bloody Kansas ..............................1441

D. The Civil War ..............................1444

V. RECONSTRUCTION AND LABOR UNREST ..............1447

A. Congress, Civil Rights, and the Fourteenth

Amendment ................................1447

1. T he Freedmen’s B ureau ....................1447

2. Southern representation in Congress ..........1449

3. Civil Rights Bill ..........................1450

4. Anti-KKK Act ............................1451

5. Fourteenth Am endm ent ....................1451

6. Civil Rights Act of 1875 ....................1453

7. S um m ary of Con gressional policy ............1453

B. Cruishank .................................1454

C. Presser ....................................1459

VI. COMMENTARY FROM THE LATE 19TH CENTURY: COOLEY

AND OTHERS ..................................1461

A. Thomas Cooley ..............................1461

1. A Treatise on Constitutional Limitations ......1462

2. The General Principles of Constitutional Law ..1464

B. The Lesser Com mentators .....................1468

1. Joel Tiffany .............................1469

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1361

2. Timothy Farrar ..........................1470

3. George W . Pasch al ........................1472

4. J oel Bishop ..............................1474

5. J ohn Norton Pom eroy .....................1476

6. Oliver Wen dell Holm es, J r., an d J am es Kent ...1479

7. Editions of Bla ckst one .....................1482

8. T heoph ilus Parsons .......................1483

9. A foreigner’s vantage: von Holst .............1484

10. John Hare ..............................1485

11. George Ticknor Curtis ....................1486

12. John C. Ordronaux ......................1488

13. Sam uel Freeman Miller and J.C. Bancroft Davis1490

14. Henry Cam pbell Black ...................1493

15. George S. Boutwell .......................1494

16. J am es S chouler .........................1496

17. Home schooling .........................1498

18. Civics manuals for youth ..................1498

19. John Randolph Tucker ...................1501

C. L aw Review Articles .........................1503

D. Summary of the Late Nineteenth Century

Commentators ..............................1505

VII. FIN-DE-S IÈCLE AND BEYOND .....................1506

A. The Supreme Court ..........................1506

1. Miller v. Texas ...........................1506

2. Robertson v. Baldwin ......................1509

B. The Collective Right Establishes a Footing:

Salina v. Blaksley ...........................1510

C. Late Twentieth Century Commentators ..........1512

1. Some thoughts about David Williams .........1512

2. Some thoughts about Carl Bogus .............1515

D. Firearms Policy for the Twenty-first Century ......1530

1. W ho is protected by th e Second Am endm ent? ...1530

2. Does the Second Amendment limit the states? ..1530

3. What kind of “arms”? ......................1531

4. Can th e carrying of w eapons be controlled? ....1535

5. R epealing or ignoring the Second Am endment ..1536

6. T he First Am endm ent .....................1538

7. The illegality of most federal gun laws ........1541

VIII. CONCLUSION ................................1544

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1362 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

1. See SENATE SUBCOMMITTEE ON THE CONSTITUTION OF THE COMMITTEE ON THE

JUDICIARY, 97TH CONG., 2D SESS., THE RIGHT TO KEEP AND BEAR ARMS (Comm. Print

1982) [hereinafter SENATE SUBCOMM. ON THE CONST.]; Robert J. Cottrol, In trod uct ion

to 1 GUN CONTROL AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE

SECOND AMENDMENT at ix (Robert J . Cottrol ed., 1993); Robert J . Cottr ol & Ra ymond

T. Diam ond, Pu blic S afet y an d t he R ight to Bear Arms, in THE BILL OF RIGHTS IN

MODERN AMERICA: AFTER 200 YEARS 72 (David J. Bodenhamer & James W. Ely, J r.,

eds., 1993); Robert J. Cottrol, Second Amendment , in THE OXFORD COMPANION TO THE

SUPREME C OURT OF THE UNITED STATES 763 (Ker mit L . H all et al. ed s., 199 2);

CLAYTON CRAMER, FOR THE DEFENSE OF THEMSELVES AND THE STATE at xv (199 4); 4

ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1639-40 (Leonar d W. Levy et a l. eds.,

1986); STEPHEN HALBROOK, A RIGHT TO BEAR ARMS: STATE AND FEDERAL BILLS OF

RIGHTS AND CONSTITUTIONAL GUARANTEES (1989) [hereinafter HALBROOK, RIGHT TO

BEAR ARMS ]; STEPHEN P. HALBROOK, THAT EVER Y MAN BE ARMED: THE EVOLUTION OF

A CONSTITUTIONAL RIGHT (1984) [hereinafter HALBROOK, THAT EVER Y MAN BE ARMED];

I. INTRODUCTION

Despite the animosity that sometimes divides advocates and

opponents of gun control, they share one important characteris-

tic: almost unanimously, they are constitutional originalists.

Persons who believe that the Second Amendment guarantees a

right of individual Americans to own and carry guns claim that

the original intent of the Second Amendment was for an indi-

vidual right. Conver sely, person s who believe t hat the Second

Amendment only guarantees the right of state governments to

have National Guard (militia) units argue that the original

inten t su pports t heir own position.

Both sides of the debate cite mater ial from the period when

the Constitution and the Bill of Rights were ratified and de-

bated. Both sides also cite materials from E nglish legal history.

But su rpr isingly, neit her side has paid significa nt attention to

the interpretive community which first applied the Second

Amendment: the United States in the nineteenth century.

During that century, the Second Amendment’s right to keep

and bear arms was discussed in many legal treatises, in

Congressional debates, in six Suprem e Court cases, in

numerous state court cases, and in other legal materials. Yet,

except for two of the Supreme Court cases, the history of the

Second Amendment in the nineteenth century has been only

lightly touched by legal scholar ship.

In modern legal scholarsh ip, the “St anda rd Model” of the

Second Amendment maintains that individual Americans have

a right to own guns.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1363

Edward F. Leddy, Guns an d G un Conrtol, in READER’S COMPANION TO AME RICAN

HISTORY 477-78 (Eric Foner & John A. Garraty eds., 1991); LEONARD W. LEVY,

ORIGI NAL INTENT AND THE FRAMERS’ CONSTITUTION 341 (1988); J OYCE LEE MALCOLM,

TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT (1994); Akhil

Reed Amar , The B ill of R igh ts an d t he F ourteen th Am end ment , 101 YALE L.J . 1193

(1992) [hereina fter Amar , Fou rteent h A m end m ent]; Akhil Reed Amar , Th e Bil l of

Rights as a Consti tution , 100 YALE L.J. 1131, 1164 (1991); Ra nd y E. Barn et t & Don

B. Kates, Under Fire: The N ew Consen sus on th e S econd Am end m ent , 45 EMORY L.J.

1139, 1141 (1996); Bernard J . Bordenet , The Right to Possess Arms: The Intent of the

Framers of th e S econd Am end m ent , 21 U. WEST L.A. L. REV. 1, 28 (1990); David I.

Caplan, The R igh t of t he I nd ivi du al t o Bea r A rm s: A R ecent J ud icial T ren d, 1982

DET. C.L. REV. 789, 790; Da vid I. Caplan , The Right to Have Arms and Use Deadly

Force Under the Second and Third Amendments, 2.1 J. ON FIREARMS & PUB. POL’Y

165 (1990); Robert J. Cottrol & Raymond T. Diamond, The Second Amendment:

Toward an Afro-Americanist Recon sid erat ion, 80 GEO. L.J . 309 (1991); Bra nn on P .

Denn ing, Can th e S im ple Cite Be Trus ted?: Low er Cou rt I nt erpretat ions of United

States v. Miller and the Second Amendment, 26 CUMB. L. REV. 961 (1995-96)

[hereinafter Denning, Sim ple Cite]; Bran non P. Denning, Gun Shy: The Second

Amendment as an “Und erenforced Constitutional N orm”, 21 HARV. J.L. & PUB. POL’Y

719 (1998) [hereina fter Denning, Gun Shy]; Anthon y J. Dennis, Clearing the Smoke

From th e Ri ght to Bear Arms and the Second Amendment, 29 AKRON L. REV. 57

(1995); Robert Dowlut , Federal and State Constitutional Guarantees to Arms, 15 U.

DAYTON L. REV. 59 (1989) [hereinafter Dowlut , Guarantees to Arms]; Robert Dowlut ,

The Current Relevancy of Keeping and Bearing Arms, 15 U. BALT. L.F. 32 (198 4);

Robert Dowlut, The R igh t to Arm s: Does t he C ons tit ut ion or the P redilect ion of J ud ges

Reign?, 36 OKLA. L. REV. 65 (1983) [her eina fter Dowlut , The Right to Arms]; Robert

Dowlut, The Right to Keep and Bear Arms: A Righ t to Self-Defense Against Crimin als

and Despots, 8 STAN. L. & POL’Y RE V. 25 (1997); Richar d E. Ga rdin er, To Preserve

Liberty—A Look at the Right to Keep and Bear Arms, 10 N. KY. L. REV. 63 (1982 );

Alan M. Gottlieb, Gun Ow nership: A Constitutional Right, 10 N. KY. L. REV. 113

(1982); Stephen P. Halbrook, Congress In terprets the S econd Am end m ent: Declara tion s

by a Co-Equal Branch on the Individual Right to Keep and Bear Arms, 62 TENN. L.

REV. 597 (1995); Stephen P . Ha lbrook, En croach m ents of the Crown on th e Liberty of

the Subject: Pre-R evolu tion ary Origin s of the S econd Amendment, 15 U. DAYTON L.

REV. 91 (1989); Stephen P. Halb rook , Personal Security, Personal Liberty, and “The

Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth

Amendment, 5 SETON HALL CONST. L.J. 341 (1995) [herein after Halbrook, Personal

Security]; Stephen P. Halbr ook, S econd -Class C itizen sh ip a nd th e S econd Am end m ent

in the District of Columbia, 5 GEO. MASO N U. CIV. RTS. L.J . 105 (1995); Stephen P.

Halbrook, The Jurispru den ce of th e S econd and F our teen th Am end m ent s, 4 GEO.

MASON L. REV. 1 (19 81); Stephen P . Ha lbrook, The R igh t of t he P eople or th e Pow er

of th e S ta te: Bea rin g Ar m s, A rm in g Militia s, and th e S econd Am end m ent , 26 VAL. U.

L. REV. 131 (1991); Stephen P. H albrook, What the Framers Intended: A Linguistic

Analysis of the Right to “Bear Arms”, 49 LAW & CONTEMP. PROBS. 151 (1986)

[hereinafter Halbrook, What the Framers Intended]; David G. Har dy, Armed Citizens,

Cit izen Arm ies: Towa rd a J ur ispru den ce of th e S econd Amendment, 9 HARV. J.L. &

P UB . POL’Y 559 (1986); David G. Hardy, The Second Amendment and the

Historiography of the Bill of Rights, 4 J.L. & POL. 1 (1987) [hereina fter Hardy, Second

Amend ment]; Nicholas J . Johnson, Principles and Passions: Th e Inters ection of

Abortion and Gun Rights, 50 RUTGERS L. REV. 97 (1997); Don B. Kat es, J r., Handgun

Prohibition and the O riginal M ean ing of t he S econd Am end m ent , 82 MICH. L. REV.

204 (1983) [hereina fter Kat es, Ha nd gun Proh ibit ion]; Don B. Kates, J r., Th e S econd

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1364 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

Amendm ent: A Dialogue, 49 LAW & CONTEMP. PROBS. 143 (198 6); Don Ka tes, The

Second Am end m ent and t he Ideology of S elf-Protecti on, 9 CONST. COMMENTARY 87

(1992) [hereinafter Kates, S elf-Protection]; David B. Kopel & Christopher C. Little,

Communitarians, Neorepublicans, and Gu ns: Assessing the Case for Firearms

Proh ibit ion, 56 MD. L. REV. 438 (1997); Stephanie A. Levin, Grassroots Voices: Local

Action an d N ational M ilitary P olicy, 40 BUFF. L. REV. 321, 346-47 (1992); Sa nfor d

Levinson, The Embarrassing S econd Amendment, 99 YALE L.J . 637 (1989); N elson

Lund, The P ast an d F ut ure of the Individual’s Right to Arms, 31 GA. L. REV. 1 (1996)

[hereinafter Lund, Past and Fu ture]; Nelson Lund, The Second Amendment, Political

Liberty, and t he R igh t to S elf-Preservation, 39 ALA. L. REV. 103 (1987); Joyce Lee

Malcolm, T h e R ig h t of the P eop le to K eep an d B ea r A rm s: T he Common Law

Tr ad ition, 10 HASTINGS CONST. L.Q. 285 (1983); Thomas B. McAffee & Micha el J.

Quinlan, Bringin g Forw ard th e Ri ght to Keep and Bea r Arm s: Do Text, Histor y, or

Preced ent Stand in the Way?, 75 N.C. L. REV. 781 (1997); Thoma s M. Moncure, Jr.,

The Second Am endment Ain’t About Hunting, 34 HOW. L.J. 589 (1991); Thomas M.

Moncure, Jr., Who is the Militia— The Virginia Ratification Convention and the Right

to Bear Arms, 19 LINCOLN L. REV. 1 (1990); James Gray Pope, Republican Moments:

The Role of Direct Popular Pow er in th e Am erica n Cons tit ut ional O rder, 139 U. PA.

L. REV. 287 (1990); L.A. Powe, J r., Guns, Words, an d Constit ut ional Int erpretat ion,

38 WM. & MARY L. REV. 1311 (1997); Michael J . Quin lan, Is There a Neutral

Jus tif ication for R efu sin g to I m plem ent the S econd Am end m ent or is th e S up rem e

Court Just “Gun S hy”?, 22 CAP. U. L. REV. 641 (1993); Glenn Ha rlan Reynolds, A

Critical Guide to the S econd Am end m ent , 62 TENN. L. REV. 461 (1995); Glenn H arlan

Reynolds, The Right to Keep and Bear Arms Under the Tennessee Constitution: A Case

Study in Civic Republican Though t, 61 TENN. L. REV. 647 (1994) (discussing the

Secon d Amendment as r elated to t he Tenn essee Constitut ion) [hereinafter Reynolds,

Tennessee Constitu tion ]; Elain e Scar ry, War and the Social Contract: Nu clear Policy,

Distribution, and th e Right to Bear Arms, 139 U. PA. L. REV. 1257 (1991); J. Neil

Sch ulman, The Text of th e Second Am end m ent , 4 J. ON FIREARMS & P UB. POL’Y 159

(1992); Robert E. Sh alhope, The Armed Citizen in the Early Republic, 49 LAW &

CONTEMP. PROBS. 125 (1986); Robert E. Sha lhope, The Ideological Origins of the

Second Amendment, 69 J. AM. HIST. 599 (1982); William Van Alst yne, Th e S econd

Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236 (1994); David E.

Vandercoy, The H istory of th e S econd Am end m ent , 28 VAL. U. L. REV. 1007 (1994);

Eugene Volokh, The Amazing Vanishing Second Amendment, 73 N.Y.U. L. REV. 831

(1998); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV . 793

(1998); Scott Bursor, Note, Toward a Fu nct ion al Fram ewor k for In terpret ing the

Second Amendment, 74 TEX. L. REV . 1125 (1996); Robert J. Cottrol & Raymond T.

Diamond, The Fifth Auxiliary Right, 104 YALE L.J. 995 (1995) (reviewing J OYCE LEE

MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT

(1994)); Bra nnon P. Denning, Professional Discourse, The Second Amendment, and the

“Talking Head Constitutionalism” Counterrevolution: A Review Essay, 21 S. ILL. U. L.J .

227 (1997) (reviewing DENNIS A. HENIG AN ET AL ., GUNS AND THE CONSTITUTION: THE

MYTH OF SECOND AMENDME NT PROTECTION FOR FIREARMS IN AMERICA (1996)); T.

Markus Funk , Is t he T rue Meaning of th e Second Amend m ent Really S uch a R iddl e?

Tracing the Historical “Origins of an An glo-American Righ t”, 39 HOW. L.J. 411 (1995)

(reviewing JOYCE LEE MALCOM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-

AME RICAN RIGHT (1994)); David B. Kopel, It Isn’t About Duck Hun ting: The British

Origins of the Right to Arms, 93 MICH. L. REV. 1333 (1995) (reviewing JOYCE LEE

MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT

(1994)); F. Sm ith Fussn er, Book Review, 3 CONST. COMME NT ARY 582 (1986) (reviewing

STEPHEN P. HALBROOK, THAT EVER Y MAN BE ARMED: THE EVOLUTION OF A

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1365

CONS TITU TION AL R IGHT (1984)); Joyce Lee Ma lcolm, Book Review, 54 GEO. WASH. L.

REV. 452 (198 6) (reviewing STEPHEN P. HALBROOK, THAT EVER Y MAN BE ARMED: THE

EVOLUTION OF A CONSTITUTIONAL RIGHT (1984)); cf. Nicholas J. Johnson, Beyond the

Second Am end ment : An In di vid ua l R igh t to Arm s View ed t hrough the Ninth

Amendment, 24 RUTGERS L.J. 1 (1992) (arguing that the Ninth Amendment supports

an individu al righ t t o ar ms ).

2. See DENNIS A. HEN IGAN ET AL ., GUNS AND THE CONSTITUTION: THE MYTH OF

SECOND AMENDME NT PROTECTION FOR FIREARMS IN AMERICA (1995); Keith A. Ehrman

& Dennis A. Henigan, The S econd Am end ment in th e Twen tiet h Cent ur y: Ha ve Y ou

S een Your Militia Lately?, 15 U. DAYTON L. REV. 5, 30 (19 89) (“ The ‘right to bear

arms’ concerned the abilit y of th e st at es t o ma int ain an effect ive m ilit ia, not an

individual right to keep weapons for an y purpose whatsoever.”); Dennis A. Henigan,

Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107 (1991) [hereinafter

Henigan, Arm s, An arch y]. Henigan’s status as premier writer of the anti-individual

school is based on the fact that he has authored two full length anti-individualist law

review articles in t he las t decade, an d h e is by far t he mos t a ctive sp okesm an for the

view that the individua l right t o keep and bea r a rm s is a frau d. S ee sources cited

infra not e 12; see also ROBERT J. SPITZER, THE POLITICS OF GUN CONTROL 42-43 (1995);

George Anastaplo, Amendments to the Constitution of the United States: A

Commentary, 23 LOY. U. CHI. L.J. 631, 687-93 (1992); Michael A. Bellesiles, The

Origins of Gun Culture in the United States, 1760-1865, 83 J. AM. HIST. 425 (1996);

Carl T. Bogus, Race, Riots, and Guns, 66 S. CAL. L. REV. 1365 (1993); Carl T. Bogus,

The Hidd en H ist ory of th e Second Am end m ent , 31 U.C. DAVIS L. REV. 309 (1998)

[hereinafter Bogus, Hidden History]; Lawrence Delbert Cr ess, An Arm ed Comm unity:

The Origins and Meaning of the Right to Bear Arms, 71 J. AM. HIST. 22 (1984);

Samuel Fields, Gu ns , Crim e an d t he N eglig ent Gun O wn er, 10 N. KY. L. REV. 141

(1982); Andrew D. H erz, Gun Crazy: Constitutional False Consciousness and

Derelict ion of Dialogic Responsibility, 75 B.U. L. REV . 57 (1995); Mich ael J . Pa lmiott o,

The Misconception of the American Citizen’s Right to Keep and Bear Arms, 4 J. ON

FIRE ARMS & PUB. POL’Y 85 (1992); War ren Spann aus, S tat e Firearm s R egul ati on and

the Second Amendment, 6 HAMLINE L. REV . 383 (198 3).

Standard Modelers differ among them selves over the types of

guns which may be kept, the breadth of purposes for which the

right to keep a gun is protected, and the permissible

restrictions on the “bearing” of arms.

Competing with the Standard Model in the late twentieth

century are what this article terms the “anti-individual”

theories. The name is appropriate because these theories are

linked by t heir common attempt to show that an individual

Amer ican citizen has no right to own a gun. The leading anti-

individual theorist is Handgun Control’s attorney Dennis

Henigan, who argues that the Second Amendment protects the

state governments’ right to be free from federal interference

with their militias.

According to this view, t he Secon d

Amendment limits the Congressional militia powers created by

Article I of the Constitution, although Henigan and other

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1366 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

3. For an analysis of the logical implicat ions of a states’ rights Second

Amendment theory as propounded by Henigan, see Glenn Har lan Reynolds & Don B.

Kates, The Second Amendment an d S tates’ Righ ts: A Thou ght E xper im ent , 36 WM. &

MARY L. REV. 1737 (1995). If the Second Am endment did guarantee state control over

the National Guard, then it would be ha rd to den y th e uncon stitu tion ali ty of

President Eisenhower’s federalization of the Arkansas National Guard—over the

vehement prote st of th e Gov ernor —du ri ng th e Litt le Rock school integration crisis in

1957. See Powe, supra note 1, at 1385-86.

4. Denn is Henigan, The Right to Be Arm ed: A Constit ut ional Illu sion , S.F.

BARRISTER, Dec. 1989, available online at ¶ 19 (visited Nov. 30, 1998)

<htt p://www.handguncontr ol.org/legalaction/C2/c2rtarms.htm>.

5. Garry Wills, Why We Have N o Right to Bear Arms, N .Y. REV. BOOKS, Sept.

21, 1995, at 62, 72.

6. Id. at 69.

7. See id. at 72.

states’ rights supporters have not specified what those

lim itations are.

But if states’ righ ts t heorists a re unclea r abou t

what the Second Amendment does, they a re emph atic abou t

what it does not do: “since privately-owned weapons are no

longer used to arm citizen militias, as they were in colonial

times, the regulation of such arms should face no Second

Amendment barrier.”

Another major anti-individual theory might be called the

“nihilist Second Amendment.” Offered by Garry Wills, this

theory argues that the Second Amendment “had no real

meaning.”

According to Wills, only “wacky scholars” and their

dupes believe that the Second Am endm ent affirms a righ t of

individuals to own firearms for pr otection against tyranny.

Evid ently, J ames Ma dison played a clever trick on the entire

United States and wrote an Amendment which amounts to

nothing at all. In the period between Madison and Wills,

however, no one else seems to have discovered this shrewd

ploy.

The term “collective rights” is somet imes used in connect ion

with these anti-individual interpretations of the Second

Amendment to indicat e a right that belongs to the people

collectively (like “collective property” under a Communist

government), rather than to any individual, and therefore

belongs to the government. Some “collective rights” proponents

adhere to a states’ r ights version Second Amendment, while

other s propou nd t he nihilist app roach.

David Williams offers a third variant on the “anti-

individual” approach in a series of innovative articles. First, he

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1367

8. See David C. William s, Civic Republicanism and the Citizen Militia: The

Terrifying Second Amendment, 101 YALE L.J . 551 (1991) [her eina fter William s, Civic

Republicanism]; David C. William s, The M ilitia Mov em ent an d S econd Am end m ent

Revolution: Conjuring with the People, 81 CORNELL L. REV. 879 (1996) [hereinafter

Williams, Militia Movement]; David C. Willia ms, Th e Un ita ry S econd Amendment, 73

N.Y.U. L. REV. 822 (199 8).

acknowledges that the Second Amendment was intended to

preser ve the ability of all “the people” to have guns a nd t o kn ow

how to use them to maintain order and resist tyranny.

But,

continues Williams, the Second Amendment is operative only as

long as the American people are like “the people” contemplated

in the r epublican theory of the Second Am endm en t: virtuous,

unified, homogenous, imbu ed wit h a shared vision of th e

common good, and trained by their state governments in the

use of firearms. Since the American people no longer fit the

description of “the people” implicit in the Second Amendment,

the argument goes, the Second Am endm ent is obsolet e and of

no legal effect. Because Willia ms’s theor y is an argument abou t

changed circumstances in the twentieth century, analysis of

nineteenth century sources cannot resolve all the issues he

raises. But the nineteenth century does provide a good test case

for Williams’s theory of the Second Amendment. During the

period before and after the Civil War, Americans were more

disunited, more distrustful of each other, and more thoroughly

polarized in their competing vis ions of the com mon good than at

any other time in American history. It is useful to examine

what became of t he Secon d Am endment during these decades

when the people of the United St ates fell far awa y from

Williams’s ideal.

The various fa ctions in the modern Second Amendment

debate share another t rait: they insist that their own

interpretation has a lways been the common underst anding of

the Second Amendment. The contra ry viewpoint, each insists,

is a modern fiction, invented by the other faction, and having no

support in American legal history. For example, the late

Warren Burger, after retiring from the Supreme Court,

participated in an advertising campaign for Handgun Control.

The former Just ice informed Americans that the notion of the

Second Amendment as an individual right is a “fr aud”

perpetrated by t he National Rifle Association.

The late Erwin

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1368 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

[O]n e of the frauds—and I use t ha t t er ms [sic] a dvisedly—on t he Ame rican

people, ha s been th e camp aign t o mislead th e pu blic a bout t he Secon d

Amendment. The Second Amendment doesn’t guarantee the r ight to ha ve

firearms at all. . . . [The People of this coun try] want ed th e Bill of Rights

to make sure tha t there was no standing army in this country, but that

there would be state armies. Every state during th e revolution had its own

army. There was no na tiona l army.

Warren Bur ger, Press Conference Concerning Introduction of the Public Health and

Safety Act of 1992, FED. NEWS SERVICE, June 26, 1992, available in LEXIS, Nexis

Library, ARCN WS F ile (su pporting pr opos al to confisca te ha nd guns ).

The United States, under the Constit ution, has always had a standing ar my. If

the Second Amendm ent were meant to prohibit standing armies, it is impossible to

explain why the very same Congress t hat approved the Second Amendment also voted

to crea te a sta ndin g ar my. Compare Military Establishment Act, H .R. 50a, with

Military Establishment Act, H.R. 126a, both in 5 DOCUMENTARY HISTORY OF THE FIRST

FED ERAL CONGRESS 1789-1791, at 1272-14 32 (L inda Gr an t D e P au w et a l. eds., 1972 ).

10. Erwin N. Gr iswold, Phantom Second Am endment ‘Rights’, WASH. POST, Nov.

4, 1990, at C7; see also Hen igan, supra note 4 (“That the 2nd Amendment poses no

threat to laws affecting the pr ivate possession of firearms m ay well be t he m ost well-

settled proposition in const itutional law.”). Considerin g how well-establish ed certain

other pr inciples of American law ar e (su ch a s ju dicia l re view, or t he prohib ition on

prior restr ain ts), Gr iswold and H eniga n m ake a very st rong claim.

11. Michael K. Beard & Kristin M. Ran d, The Handgun Battle, BILL OF RTS. J.,

Dec. 1987, at 13, 13.

12. 9 FIREARMS LITIG. REP. (Firearms Litig. Clear inghouse), Su mm er 1995, at

4 (recomm ending And rew D. Herz, Gun Crazy: Constitutional False Consciousness and

Dereliction of Dialogic Responsibility, 75 B.U. L. Re v. 57 (1995)); see also CENTER TO

PREVENT HANDGUN V IOLENCE, THE SECOND AMENDMENT: FRAUD AND FACT (undated

pamphlet) (on file with a uthor) (“Fraud[:] . . . each citizen of a state retains a

fundamental ‘righ t to keep and bear a rms.’ Fact[:] . . . the Second Amendment does

not guarantee th e righ t of individuals to own an d to carry arm s.”); Denn is Hen igan,

Exploding the NRA’s Constitutional Myth, LEG AL TIMES, Apr. 22, 1991, at 22, 22

Griswold, former Solicitor General of the United States, former

Dean of Harvard Law School, and m em ber of the Board of

Handgun Control, wrote “that the Second Amendment poses no

barrier to strong gun laws is perhaps the most well-settled

proposition in American constitutional law.”

Similarly, the

Coalit ion to St op Gun Violence (t he n ation’s second largest

antigun group, next to Handgun Control) informs us that the

notion of the Secon d Amendment as a barrier to gun pr ohibition

is a “myth.”

The Coalition’s educational arm recommends a

recent law review article which, instead of the word “myt h,”

uses words such as “deception,” “constitutional false

consciousness,” “fake,” “int entional deception,” “fictional,”

“bogus,” and “constitutional charade.” The article further

accuses law professors holding contrary views of deliberate

fraud.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1369

(arguing that an individual right to arms is a “constitutional myth, an illusion created

by ma ss ad ver ti sin g to ad vance a p olit ica l object ive ,” th at th e N RA should “no longer

pretend th at th er e is some fund am en ta l cons tit ut ional liberty at stake,” and that

“[i]t’s time to stop the Second Amendment nonsense”) [hereinafter Henigan,

Constitutional Myth]; Dennis He nigan, Faulty Interpretation, WASH. TIMES, Jan. 11,

1998, at B4 (“Th e con st itut ional debate is p hony .”).

13. See generally DUNCAN KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION

OF HIERA RCHY: A POLEMIC AGAINST THE SYSTEM (198 3).

If Chief Justice Burger and the rest are right, then we

should expect that legal materials of the nineteenth century

would clearly support their claim. In the period before the

founding of the National Rifle Association in 1871, we should

not expect to find assertions that the Second Amendment is an

individual right.

This article lets the nineteenth century legal community

speak for itself by dealing with the treatises and cases—what

Duncan Kennedy calls “the mandarin materials”

—of th e

nineteenth century, as well a s Congressional and polit ical

debates. Newspaper articles, novels, and other mass

entertainment materials are not discussed. There is a great

deal to learn from what the nineteenth century had to say

about the Second Amendment. Most importantly, we can

resolve whether the Second Amendment has historically been

considered to protect an individual right. Additionally, an

examination of the Second Amendment in the nineteenth

century provides useful guidance about what types of gun

control are constitutionally permissible.

Part II of this article analyzes the Second Amendment

scholarship of the three great constitutional treatises of early

nineteenth century—St. George Tucker’s American Blackstone,

William Rawle’s A View of the Constitution of the United States

of America, and Joseph Story’s Commentaries on the

Constitution of the United States—as well as some lesser

commentators from the 1830s, 1840s, and 1850s. Part II also

includes a study of Justice Story’s dicta about the Second

Amendment in the 1820 case Houston v. Moore.

Part III addresses nineteenth century state constitutions

and state case law regarding the right to arms. These

constitutional texts and their judicial interpretation offer

valuable insights into the meaning of the Second Amendment.

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1370 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

The Civil War is the subject of Pa rt IV, which discusses

Dred S cott, the writin gs of anti-slavery human rights activists,

and the confiscations of arms before and during the War. Part

V deals wit h the aftermath of the Civil War, including

Congressional debates about the infringements by

unreconstructed Southern states of the freedmen’s right to

arms; the Fourteenth Amendment; and the Supreme Court’s

Cruikshank decision. Part V concludes with a discu ssion of th e

growth in labor unrest, restrictive gun laws aimed at labor

agitators, and the Supreme Court’s Presser decision.

Scholarly commentators of the later nineteenth century are

the subject of Part VI. Thomas Cooley is the giant of this

period, but there were also more than a dozen other

constitutional treatises from the period, as well as the first law

review articles on the right to arms.

Part VII brings the article to the fin-de-siècle, by looking at

two Su pr em e Court cases m en tioning the Secon d Am endment

in dicta; it also peeks ahead into the early twentieth century at

the most important Second Amendment “states’ right”

ruling—the Kansas case of S alin a v. Blaksley. Part VII also

examines the implications that the nineteenth century records

have for moder n firea rms policy, and for the scholarsh ip of

David Williams and Carl Bogus.

The Conclusion discu ss es wh ich modes of t he Secon d

Amendment analysis are plausible and which modes are

implausible in light of the nineteenth century’s Second

Amendment interpretation.

II. THE EARL Y GIANTS: TUCKER, RAWLE, AND STORY

Part II of this article examines the treatment of the Second

Amendment in the fir st third of the nineteenth century by the

three major legal commentators of the era: St. George Tucker,

William Rawle, and Joseph Story. This Part also discusses the

Supreme Court’s first Second Amendment case, the virtually

unknown 1820 Houston v. Moore. The Part concludes with

discussion of other commentators from the 1830s through the

1850s.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1371

A. St. George T ucker: The Am erican Blackstone

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1372 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

14. WILLI AM BLAC KSTO NE, COMMENTARIES (St. George Tucker ed., Lawbook

Exchange, Ltd. 1996) (1803).

15. See Hon. Armistead M. Dobie, Fed eral District J ud ges in V irginia B efore t he

Civil War, 12 F.R.D . 451, 459 (1 952); WILLIAM S. PRINCE , THE POEMS OF HEN RY ST.

GEORGE TUCKER OF WILLIAMSBURG, VIRGINIA 1752-1827, at 1 (1977). Like many

educated me n of his day , Tu cker fr equently wr ote poet ry. Alth ough his poem s a re not

particula rly memorable, neither is most American poetry from t he E arly Repu blic. See

id. at x.

16. Don Riddick, The Second Most Powerful Pen in Early Virginia: St. George

Tucker, 4 J. S. LEG. HIST. 71, 71 (1 997).

17. See JAMES MADISON, JOURNAL OF THE FEDERAL CONVENTION 35-36 (E.H .

Scott ed., Alb er t, Scot t & Co. 1 893 ) (1840).

18. LAWRENCE M. FRIE DMAN , A HISTORY OF AMERICAN LAW 193 (1973). Tucker

was also known to be “as kindhearted a ma n as ever lived.” HENRY ADAMS, JOHN

RANDOLPH 166 (M.E. Shar pe 1996) (188 2).

19. See PRINCE, supra note 15, at 5; Paul D. Car rin gton, The Twenty-First

Wis dom , 52 WASH. & LEE L. REV. 333, 33 3 n.1 (1 995); Dowlut, The Right to Arms,

supra note 1, at 83-84; Stephen P . Halbrook, Rationing Firearms Purchases and the

Righ t to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia, and

the Un ited S tates, 96 W. VA. L. REV. 1, 2 0 (19 93).

20. Carrington, supra note 19, at 336.

21. RICHARD B. DAVIS, INTELLECTUAL LIFE IN JEFFE RSON’S VIRGI NIA 1790-1843,

at 413 (1964), cited in Car rin gton, supra note 19, at 336 n.18. H is abolition proposal

The first scholar ly analysis of the Second Amendment is

found in St . George Tucker’s American edition of Blackstone’s

Com m entaries, published in 1803.

1. Tucker’s backgrou nd

The law practice of this young Virginia attorney was

interrupted by the American Revolution. St. George Tucker

threw himself into the cause enthusiastically, heading up a

gun-running operation in which his four small ships sent indigo

to the West Indies and Bermuda in exchange for firearms for

the Patriots.

Acclaimed as “one of the great war heroes of

Virginia,” Tucker was chosen as h ea d of Vir gin ia’s delegation to

the Annapolis Convention (the precursor to the Philadelphia

Conven tion).

Ther e, h e ser ved on a commission with James

Madison to meet with state officials and determine to what

degree the federal government should have the authority to

create uniform rules to facilitate interstate commerce.

“[O]ne of the most eminent of Virgin ia lawyers,”

Tucker

taught law at William and Mary from 1790 until 1804, when he

was appointed a judge of Vir ginia’s H igh Court of Appeals.

was also “perhaps the most ardent advocate of emancipation in

Virginia in the 1790s,”

calling it his “dear est wish.”

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1373

was detailed in ST. GEORGE TUCKER, A DISSERTATION ON SLAVERY: WITH A PROP OSAL

FOR THE GRADUAL ABOLITION OF IT IN THE STATE OF VIRGINIA (179 6). Tucker ensured

the wide circulat ion of his proposa l by ma king it an appen dix to h is 1803 t rea tise. See

2 BLACKSTONE, supra note 14, app. at 31. Tucker described the disarmed status of

free Negroes in Virginia as amounting to civil slavery. But he urged that the law

against ownersh ip of arm s by freedm en be le ft in pla ce upon th e abolition of slavery,

so as to encourage the ex-slaves to settle outside Virginia. See id. app. at 57, 68, 78-

79.

22. See PRINCE, supra note 15, at 5.

23. See Pau l Finkelman & David Cobin, In trod uction to 1 BLACKSTONE, supra

note 14 at i.

24. Carrington, supra note 19, at 334.

25. See Pa ul D. Ca rr ington, Law as “The Comm on Thoughts of Men”: The Law-

Teaching an d J ud gin g of T hom as M cIn tyre Cooley, 49 STAN. L. REV. 495, 516 (19 97).

26. See Elizabeth Gaspar Brown , A Jeffersonian’s Recommendations for a

Lawyer’s Education: 1802, 13 AM. J. LEGAL HIST. 139, 141 (1969). Two decades later,

Tucker’s Blackstone was still “necessary to every student and practitioner of law in

Virginia.” Daniel Call, Biographical Sketch of the Judges of the Court of Appeals, 8

Va. (4 Call) xxvi, xxviii (1827), reprinted in JEFFERSON, VIRGI NIA REPORTS, 1730-1880,

at 627 (Th omas J ohns on Mich ie e d., Th e Michi e Co. 1902).

27. Finkelman & Cobin, supra note 23, at xiii.

President Madison appointed Tucker to the federal bench for

Virginia in 1813, where he served until his death in 1827.

2. The central role of Tucker’s American Blackstone

Tucker’s annotated edition of Blackstone quickly became

known as the American Blackstone.

It was the first treatise on

common law written for t he needs and conditions of t he

Amer ican legal profession. The treatise consisted of

Bla ckst one’s four original volumes, annotated by Tucker, plus

numerous appen dices on Amer ican law a nd t he Const itution.

The “five-volume [work] was the standard work on American

law for a generation.”

Almost every prospective lawyer began

his studies by reading Tucker’s Blackstone, and some lawyers

may never have read anything else.

Thomas Jefferson

recommended Tucker’s Blackstone as part of the course of study

for aspiring law students, since the Tucker book was the best

source for overall mastery of American law.

Before the

publication of Chancellor Kent’s Com m entaries in the late

1820s, “Tucker’s [Blackstone] was the only trea tise on

Amer ican law available in the nation. Until 1827, Tucker was

the most frequently cited American legal scholar . . . .”

short, Tucker’s Blackstone is “generally considered the single

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1374 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

28. Riddick, supra note 16, at 73; see also Hon. Armistead M. Dobie, Federal

District Jud ges in V irgin ia B efore t he C ivil War, 12 F.R.D. 451, 460 (1 952 ) (“[T]he

Ame ri can Blackstone was unquestiona bly one of the most important law-books of its

da y.”).

29. Alfred L. Brophy, “Ingenium Est Fateri Per Quos Profeceri s:” Fra ncis Da niel

Pastorius’ Young Country Clerk’s Collection an d A nglo-Am erica n L egal Li terature,

1682-1716, U. CHI. SCH. ROUNDTABLE 637, 671 n.121 (1996) (citing Robert M. Cover,

Tucker’s Blackstone, 70 COLUM. L. REV. 1475, 1475 (1970); John H. Langbein,

Chancellor Kent and the History of Legal Literature, 93 COLUM. L. REV . 547 (199 3)).

30. See Finkelm an & Cobin, supra note 23, at ii.

31. 2 BLACKSTONE, supra note 14, at 140-42.

32. See id. The primary rights were personal secur ity, person al liber ty, and

proper ty. See id. at 121-38.

33. Id. at 143 (footnote s a dded by T uck er ).

most important ea rly lega l text crea ted by a n Amer ican

scholar.”

Alfred Brophy observes: “When Americans set out to remold

law books for use in America, as Henry [sic] St. George Tucker

did in 1803 with Blackstone’s Com m entaries, their results are

extraordinarily illuminating about bot h the mind of Am ericans

and the state of American law.”

Tucker did not intend merely

to reprint Blackstone; he wanted to show how Blackstone’s

ver sion of the common law had been changed —in the direct ion

of significantly greater civil liberty—by developments in

Amer ica, especially the ratifica tion of the Constitution and Bill

of Rights.

3. Tucker on the right to arms in Bla ckst one

The second volume of Tucker’s American Blackstone

contains Blackstone’s commentary on what Blackstone called

the five “auxiliary rights of the subject.”

These were rights

(such as the right to seek legal redress in court, and the right to

petition) whose main purpose was to safeguard primary

rights.

Blackstone had written:

The fifth and last auxiliary right of the subject, that I shall at

present mention , is th at of having arm s for their defence[fn40]

su ita ble to their cond ition and degr ee, and such as are allowed

by law[fn 41]. Which is also declared by the same statute 1 W.

& M. st. 2 c. 2, and it is indeed, a public allowance under due

restrictions, of the natural rights of resistance and self-

preservation, when the sanctions of society and laws are found

insu fficient t o re stra in th e viole nce of opp re ssion.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1375

34. 1 W. & M., Sess. 2, ch. 2 (1688). Th e Parliament ena cting the Bill of Rights

had reject ed a n a rm s gu ar an tee lim iting th e r ight on ly to ar ms kept “for their

comm on defence.” MALCOLM, supra note 1, at 117. Although Catholics were excluded,

they were allowed by statute to keep guns on their own property for persona l de fense.

See 1 W. & M. Sess. 2, ch. 15 (1 688 ); MALCOLM, supra note 1, at 122-23.

35. 2 BLACKSTONE, supra not e 14, at 143 n .40. Th e cit at ion to “Ar t. 4” reflect s

the fact that the Second Amendment was originally the Fourth Amendment and

gained its current numbering only when the original first two amendments

(controlling House of Representatives apportionment and Congressional pay raises)

failed to win speedy ra tificat ion by the states. Tucker’s numbering system followed

the numbering of the amendments as proposed to the S ta tes by Congr ess. S ee 1 id.

app. at 300.

36. 2 id . a t 143 n .41 (qu ota tion ma rk s m odifi ed to r efle ct m odern us age).

37. “They [the proposed Bill of Right s] rela te 1s t. to private rights — . . . fa lla cy

on both s ide s—espec[iall]y a s t o En glis h D ecln . of Rt s—1. mere act of parl[iamen]t.

2. no freedom of press—Conscience . . . attainders—arms to Protest[an]ts.” James

Madison, N otes for S peech in Con gress S up port in g Am end m ent s (June 8, 1789), in 12

THE PAPERS OF JAMES MADISON 193-94 (Charles F. H obson et . al. eds., 1979); see also

THE ORIGIN OF THE SECOND AMENDMENT 645 (David E. Young ed., 1991) [hereinafter

Bla ckst one was explaining the English Bill of Rights, wh ich

provided: “That the subjects which are protesta nt s, may have

arms for their defence suitable to their conditions, and as

allowed by law.”

Tucker added his own analysis in two footnotes:

[fn40] The right of the people to keep an d bea r a rm s shall not

be infringed. Am endm en ts to C. U. S. Ar t. 4, an d this with out

any qualification as to their condition or degree, as is the case

in the British government.

[fn41] Wh oever examines the forest, a nd game laws in t he

British code , will r ea dily p er ceive that t he r igh t of keeping

arms is effectu ally ta ken a way from th e people of E nglan d.

The commentator himself informs us, Vol. II, p. 412, “that the

pr eve ntion of popular insurrections and resistence to

government by disarming the bulk of the people, is a reason

oftener meant than avowed by the makers of the forest and

gam e la ws .”

Tucker’s footnote 40 echoed the language of t he Secon d

Amendment. He distinguished the American right to arms from

its British antecedent by noting that the American right had

none of the limitations that were contained in the British right.

Tucker’s criticism of the English Bill of Rights paralleled

Madison’s criticisms in a speech to Congress introducing the

Bill of Rights.

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1376 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

ORIGIN].

38. 3 BLACKSTONE, supra note 14, at 414 n.3.

39. See MALCOLM, supra note 1, at 126-30.

40. 3 BLACKSTONE, supra note 14, at 414 n.3.

Tucker’s footnote 41 qu oted Bla ckstone’s description of th e

English game la ws, with their restriction on the ownership of

hunting weapons as having the covert intent of disarming the

non-aristocratic population. In his commentary on the game

laws section of Blackstone, Tucker added his own condemnation

of British pr actice, contrast ing it wit h the robust righ t to arms

in Amer ica:

The bill of rights, 1 W. a nd M, sa ys Mr. Blackstone, (Vol. 1

p. 143,) secures to the subjects of England the right of having

arms for their defen ce, suitable to their con dition an d degree.

In the construction of these game laws it seems to be held, that

no person who is not qualified according to law to kill game,

hath any right to keep a gun in his house. Now, as no person,

(except th e gam e-k eepe r of a lord or lady of a m anor) is

admitted to be qualified to kill game, unless he has 100l. per

annum, &c. it follows th at no others can keep a gun for th eir

defence; so that the wh ole n at ion ar e com pletely disa rm ed, an d

left at the mercy of the government, under the prete xt of

preserving the breed of hares and pa rt rid ges, for the exclusive

use of th e in dependent cou ntr y gentle men . In Am er ica we may

re as ona bly hope that the people will never cease to regard the

right of keepin g and bearing arms as the surest pled ge of th eir

liberty.

In fact, Tucker was wrong in his dire description of

England; after the overthrow of the Stuarts in 1689, the game

laws were no longer used to disarm the common people. The

law presumed that a comm oner’s gu n was intended for self-

defense (a right guaranteed by the 1689 Bill of Rights), unless

the circumstances showed that the gun was used for u nlawful

hunting.

But more important than whether Tucker accurately

understood English circumstances is what his widely read

treatise shows about the state of American law. Tucker’s

remarks unambiguously described “the right of keeping and

bearing arms as the surest pledge of . . . liberty.”

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1377

41. St. George Tucker, The Judges Tucker of the Court of Appeals of Virginia,

1 VA. L. REG. 789, 794 (1896); see also Fin kelm an & Cobin, supra note 23, at i.

42. See Tucker, supra note 41, at 793.

43. See Finkelm an & Cobin, supra note 23, at ii.

44. New York Times Co. v. Sullivan, 376 U.S. 254, 286, 296 (1964) (Black, J.,

concurring) (J us tice Dougla s joine d t his con cur re nce ).

45. Finkelman & Cobin, supra note 23, at v.

46. Cohens v. Vir gin ia, 19 U.S. (6 Wh ea t.) 264 , 418 (18 21).

4. Tucker’s appen dix on th e Am erican Constitution

Tucker’s American Blackstone contained several appendices,

including a lengthy appendix analyzing the new American

Const itution. This appendix was “the first disquisition upon the

character and interpretation of the Federal Constitution, as

well as upon its origin and true na tu re,”

and was used as a

legal textbook for many decades throughout the United

States.

Tucker’s constitutional analysis remains powerful in

modern times. For example, Tucker was the first scholar to

argue that the First Amendment advanced far beyond English

common law freedom of pr ess. While freedom of press in

England meant only freedom from prior restraints, Tucker

argued that the First Amendment left Congress with no power

at all to punish newspapers, even after the fact.

Justice Hugo

Bla ck later obser ved that Tucker’s a ppendix set forth “the

general view held when the First Amendment was adopted and

ever since.”

Justice Black was right to cite Tucker as the definitive

source for original intent. “While Tucker published his

[Amer ican] edition of Blackstone in 1803, he began writing it in

1790, as h e prepared lect ures for his courses at William and

Mary. The ideas and arguments in his volumes are thus

perhaps as contemporaneous to the Founding as it is possible to

find.”

Because “[g]reat weight has always been attached, and very

rightly attached, to contemporaneous exposition,”

the

Supreme Court has cited Tucker in over forty cases. On e ca n

find Tucker in th e major cases of virtually every Supr em e Court

era. In the early nineteenth century Tucker is cited in Fletch er

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1378 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

47. 10 U.S. (4 Cr an ch) 8 7, 121 (1 810).

48. Dartmouth College v. Woodwar d, 1 7 U .S. (4 Wh ea t.) 518 , 607 (18 19).

49. 22 U.S. (9 Whea t. ) 1, 86, 113, 179 (1824).

50. Charles River Bridg e v. Warr en Br idge, 36 U .S. (11 P et .) 420, 4 72 (1837 ).

51. Scot t v. San dfor d, 60 U .S. (19 H ow.) 3 93, 578 (1856).

52. 83 U.S. (1 6 Wa ll.) 36, 1 27-2 8 (18 72).

53. 123 U.S. 1 31, 152 (1887).

54. 157 U.S. 4 29, 629 (1895) (Wh it e, J ., diss en ti ng).

55. 341 U.S. 4 94, 522 -23 n .4 (1951 ) (Fr an kfu rt er , J ., con cur ring ).

56. 376 U.S. 2 54, 286 , 296-97 (196 4) (Black , J ., con cur ri ng).

57. 501 U.S. 9 57, 977 (1991).

58. U.S. Ter m L imits, Inc. v. Thornt on, 514 U.S. 779 (1995). The Court used

Judge Tucker’s “two primary argum ents” in its holding against t he power to add ter m

limits qualifications:

First, that in a representative government, the people have an

undoubted right to judge for them selves of the qua lification of their

delegate, and if their opinion of the integrity of their representative will

supply th e wa nt of est at e, t here can be n o reas on for the government to

interfere, by saying, that the latter must and sha ll overbalance the former.

Secondly; by requiring a qu alification in estate it m ay often happen , that

men the best qualified in oth er r espects might be in capacitated from servin g

their country.

Id. at 824 n.34.

59. Som e other cites: Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991)

(Scalia, J., concur ring in jud gment) (“It was t hu s a s a su ppos ed a ffirm at ion of Magn a

Charta according to Coke that the First Congress . . . included in the proposed F ifth

Amendment to t he Fe dera l Con st it ut ion th e provision th at ‘[n]o person shall be . . .

deprived of life, liberty, or p roperty, without due process of law.’ Early commen taries

confirm this. S ee, e.g., 2 W. BLACKSTONE, COMMENTARIES 133 nn.11, 12 (S. Tucker

ed., 1803 ).”); U.S. S te el Cor p. v. Multistate Tax Comm’n, 434 U.S. 452, 463 n.13

(1978) (“St. George Tucker, wh o along with Madison and Edmund Randolph was a

Virginia commissioner to the Annapolis Convention of 1786, drew a distin ction

between ‘treaties, alliances, and confederations’ on the one hand, and ‘agreem ents or

compacts’ on th e oth er: . . . 1 W. BLACKSTONE, COMMENTARIES, Appendix 310 (S.

Tucker ed. 1803).”); Apoda ca v. Or egon , 406 U.S. 404, 408 n .3 (1972 ) (“[T]he

unquestioning acceptance of the unanimity rule by text writ ers such as St. George

Tucker indicate th at [jury] unanimity became th e accepted ru le dur ing the 18th

cen tu ry .”); Smith v. California, 361 U.S. 147, 157 n .2 (1959) (Black, J ., concurr ing)

(“For another early discussion of the scope of the First Amendment as a complete bar

to all feder al abridgm en t of s pee ch a nd press see S t. Geor ge T uck er’s comment s on

the adequ acy of state forum s and state laws to grant a ll the protection needed

v. Peck ,

Dartmouth College,

Gibbons v. Ogden,

Charles

River Bridge,

and Dred Scott;

later in the nineteenth century

Tucker appears in the Slaughter-house Cases,

Spies v.

Illinois

(the Haymarket case), and Pollock v. Farmers’ Loan

and Trust Co.

(income tax). Tucker also appears in Dennis v.

United States,

New York Times v. Sullivan,

Harmelin v.

Michigan,

and U.S. Term Limits v. Thornton ,

in the

twentieth century.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1379

against defamation and libel.”); Barenblatt v. United States, 360 U.S. 109, 151 n.23

(1959) (Black, J ., dissen ting) (“Cf. St. George Tu cker, Appendix, 1 Blackstone

Commentaries (Tucker ed. 1803) 299. ‘[T]he judicial courts of the respective states a re

open to all persons a like, for the redress of injuries of this natur e [libel] . . . . But

the genius of our government will not permit the federal legislature to inter fere with

the su bject; an d t he federal courts are, I presume, equally restr ained by the pr inciples

of the constitution, and the amendment s which have since been a dopted.’” (omiss ion

and alt er at ions in or igin al)); id at 150 n. 20 (“Cf. St. George Tucker, Appendix, 1

Blackstone [Tucker ed. 1803] 315, discussing English laws ‘for suppressing assemblies

of free-mas ons ’ an d pointing out th at sim ila r laws ca nn ot be en act ed under our

Con st itut ion.”).

60. William Rawle’s and Justice Story’s treatises closely followed this language.

See infra text accompanying notes 96, 112.

61. 1 BLACKSTONE, supra note 14, app. at 300.

5. Tucker’s exposition of the Second Amendment

Although Tucker had addressed the Second Amendment in

his footnotes to Blackstone, the constitutional appendix gave

Tucker the oppor tunity for a fuller exposition:

This may be con sidered as th e tru e palladiu m of

liberty

. . . . The right of self defence is the first law of nature:

in most governments it has been th e st ud y of ru lers 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 arm s is, under any colour or pretext

whatsoever, pr ohibited, liberty, if not alr eady a nn ihila ted, is

on the brink of destruction. In England, the people have been

disarmed, generally, un der th e specious pretext of preser ving

the game: a never failing lure to bring over the landed

aristocracy to support any measure, under that mask, though

calculated for very differen t p urp oses. Tru e it is, their bill of

rights seem s a t fir st view to cou ntera ct t his policy: but the

right of bearing arms is confined to protestants, and the words

suitable to their condition an d degree, have been interpreted

to authorise the prohibition of keeping a gun or other engine

for the destruction of gam e, to an y farm er, or in ferior

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 pen alty.

Besides asserting that the Second Amendment upholds an

individual right essential for liberty, Tucker also argued that

even wit hout the Second Am en dm en t, Con gress cou ld not

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1380 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

62. U.S. CONST. art. I, § 8, cl. 18.

63. 1 BLACKSTONE, supra note 14, app. at 289. For furt her analysis of th is

passage, see Gary Lawson & Patricia B. Gr anger, The “Proper” Scope of Federal

Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, 302-

03 (1993) (arguing that prior to adopt ion of Bill of Rights, all natural

rights—including the right to arms—were protected by the Necessary and Proper

claus e).

64. See 1 BLACKSTONE, supra note 14, app. at 289.

But if congress may use any means, which they choose to adopt, the

provision in the constit ution which secures to the pe ople th e right of bearing

arms, is a m ere n ullity; and a ny man impri son ed for bearing arms under

such an act, m ight be with out r elief; because in tha t case, no court could

have any power to pronounce on the necessity or propriety of the means

adopted by con gress t o car ry an y sp ecifie d power into com plete effect .

Id.

65. S ee, e.g., CRAMER, supra note 1, at 69; HALBROOK, THAT EVER Y MAN BE

ARMED, supra note 1, at 53, 90, 99; Dowlut, The Right to Arms, supra note 1, at 83-

84; Gottlieb, supra note 1, at 130-31; Ha lbrook, supra note 19, at 20-26; Kates,

Handgun Proh ibit ion, supra note 1, at 241-43; McAffee & Quinlan, supra note 1, at

867-68; Powe, supra note 1, at 1369-70.

disarm “any person” because disarmament could never be

“necessary and proper”:

If, for example, congress wer e to pass a law prohibiting any

person from bea rin g arms, as a means of preventing

insurrections, the judicial courts, under the construction of the

words necessa ry an d proper, here conten ded for, wou ld be able

to pronounce decidedly upon the constitutionality of these

means.

Tucker continued his reasoning, using the example of

Congressional disarmament as an illustration for the necessity

of judicial power to declare laws unconstitutional.

St. George Tucker appears regularly in Standard Model

articles discussing the Second Amendment.

It is perhaps

significa nt that none of the anti-individual writers even admit

Tucker’s existence, let alone attempt to address the meaning of

the m ost impor tant law book of t he E arly Republic.

Suppose that the gun prohibition lobbies’ claims were

correct and the Second Amendment plainly guara nteed only a

state’s right to raise a militia. If such were the case, it is indeed

strange that not one of th e architects of t he Constitution offered

any objection to St. George Tucker . Mos t of the framers of the

Const itution, including Madison, were alive in 1803 and

actively engaged in public affairs. Many were lawyers, and it

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1381

66. Tucker’s Bla ckstone was a five-volume tr eatise, in pa rallel with the original

Blackstone. Only Tu cker’s additions, not the origina l Blackstone, were new, and

therefore potentially controver sial. Tu cker’s writin gs on constitutiona l subjects would

have been especially like ly to dra w the at tention of the lawyers, including Madison,

who ha d wr itt en th e Con st itu tion .

67. See Hous ton v. Moore, 18 U .S. (5 Wh ea t.) 1 (18 20).

68. Id. at 2-3.

would have been difficult for them to fail to notice the leading

lawyer’s book in the United States. Tucker presents an

interpretation of the Second Amendment that the anti-

individualists would find wrong in every respect: the right is

individual, not a state’s right; it belongs to everyone, not ju st

militia members; its purposes include defense against tyranny

and hunting. And yet, not one of the framers stepped forward to

correct Tucker’s flagitious misunderst anding of the Second

Amendment. Is it reasonable t o infer that Tucker—far from

grossly misunderstanding the Second Amendmen t—was merely

restating a universal understanding?

Might Madison ’s opinion

of Tucker’s legal scholarship be inferred from Ma dison ’s

appointment of Tucker to the Federal bench in 1813?

B. Houston v. Moore

The War of 1812 was unpopular in the Northeast, and many

people resisted orders to muster for milit ia service. Houston v.

Moore grew out of a prosecution under Pen nsylva nia law for

failure to perform federal militia duty.

In 1814, the Pen nsylvania legislature enacted a bill

providing that “ever y non-commissioned officer and priva te of

the militia who shall have neglected or refused to serve when

called into actual service” by the President should be punished

according to the terms of th e federal militia law of 1795. The

Pennsylvania law specified that persons accused of violating

the law would be tried by a state court-martial.

On July 4, 1814, President Madison, acting through the

Secretary of War, told the Governor of Pennsylvania to supply

militiamen for service in the war against Great Britain. The

Pennsylvania militia wa s t o be sent to guard Baltimore and the

Delaware River against expected British attack. (Napoleon ’s

recent defeats in Europe had freed the main force of the British

army for war against t he United States.)

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1382 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

69. U.S. CONST. art. I, § 8, cl. 15.

70. Id. at cl. 16.

71. See U.S. CONST. amend. X.

72. See Hou ston , 18 U.S. at 7-12.

73. See id. at 21-24.

Houston refused to serve, was eventually tried by a state

court-martial, and fined. He sued in state court to have his fine

overturned, lost, and eventually brought the case to the United

States Supreme Court.

Houston argued that the Pennsylvan ia law was

unconstitutional because Article I, Section 8, Clauses 15 and 16

of the Constitution make Congress the authority over the

militia. Clause 15 gives Congress the power “To provide for

calling forth the Militia to execute the Laws of the Union,

suppr ess Insurrections and repel Invasions.”

Clause 16 gives Congress the power “To provide for

organizing, arming, a nd disciplin ing, t he 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 accordin g to the discipline prescribed by Congress.”

Houston’s lawyer reasoned that the Congressional power over

the national militia is plenary and, therefore, states could not

legislate on the subject.

Pennsylvania’s lawyers r espon ded t hat Congressional power

over the militia was concurrent with state power, not exclusive.

They point ed to the Tenth Amendment, which reserves to

states all powers not granted to the federal government.

Further, they said, the Pennsylvania statute punishing militia

resisters was consistent with the similar federal statute

punishing resisters.

The Supreme Court’s opinion was delivered by J ustice

Bushrod Wash ington, a nephew of George Wash ington. J ust ice

Washington concluded that, as a general principle, federal

legislation regarding the militia was exclusive. Since Congress

had enacted a law punishing militia resisters, the states cou ld

not enact their own laws about militia resisters.

But, continued J ustice Washington, the instant case was

different. Here, the question was whether a Pennsylvania

court-martial could enforce the federal law. Yes, answered

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1383

74. See id. at 24-31.

75. See id. at 32.

76. “It is not very easy,” Justice Johnson began , “to form a distinct idea of what

the question in this ca se really is.” Id. at 32. In deed, Houston v. Moore could

supplant Pennoyer v. Neff, 95 U.S. 714 (1877), as the ideal case law professors could

use to baffle first-day law students—if law professors consider ed th e milit ia as

interesting as in rem jur isdiction.

77. See Hou ston , 18 U.S. a t 42-45 (J ohns on, J ., con cur ri ng ).

78. 32 U.S. (7 P et.) 243 (1833).

79. This was the only time that Justice Story dissented from a constitutional

decis ion in which Chief Justice Marshall was in the majority. S ee JAMES MCCLEL LAN,

JOSEPH STORY AND THE AMERICAN CONSTITUTION 311 n. 161 (197 1).

80. See Hou ston , 18 U.S. at 53-54.

81. See id. at 60-65.

Justice Washington, since the Congressional law creating

federal court-martials for militia resisters did not forbid states

from enforcing the federal law. And the Pennsylvania statute

did not create a new law, but merely enforced the federal one.

Thus, the Pennsylvania conviction was upheld.

Justice William Johnson agreed with the result, but wrote a

separate opinion explaining his reasoning.

Analyzing bot h the

federal militia law and the particular militia order to which

Houston had been subject, Justice Johnson concluded that

Houston could not be prosecuted by the federal governmen t for

violating the federal militia law. Accor dingly, Houst on’s

prosecution by Pennsylvania did not interfere with any federal

powers.

Justice Johnson’s opinion treated the Fifth

Amendment double jeopardy clause as enforceable against the

state of Pennsylvan ia; his opinion was the foundation of

nineteenth century argument that, Barron v. Baltimore

notwithstanding, the Bill of Rights did apply to the states.

Justice Joseph Story dissented.

Because Congress had

enacted exten sive m ilitia legislation, in cluding legislation

punishing militia resisters, its authority was exclusive.

state could not legislate with regard to militia resisters. Federal

militia control began wh en the Presiden t called for th the

militia, not wh en the militiamen must ered at the rendezvous

spot.

Part of Justice Story’s dissenting opinion addressed a

hypothetical: What if Congress, instead of exercising its

constitutional power over the militia, neglected the militia? In

case of Congressional inaction, wrote Justice Story, the states

could act:

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1384 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

82. Id. at 52-53.

83. In regard to int er st at e com merce, J us tice St ory took a d ifferent posit ion: t he

mere existence of a federal power over interstate commerce preempted any state

regulat ion of inter sta te commer ce. S ee New York v. Miln, 36 U.S. (11 Pet.) 102, 157-

61 (1837). The Miln opinion was quoted, for a different point, in another Suprem e

Court gun case, United States v. Cruikshank, 92 U.S. 542, 553 (1876). See infra text

accompanying note 365.

84. See Hou ston , 18 U.S. at 7-12. Others were concerned that the federal power

to arm and discipline the militia would entirely displace th e st at e pow er to do so.

See Pa tr ick He nr y, Vir gin ia Con ven ti on Deba te of J un e 5, 1788, reprinted in ORIGIN,

supra note 37, at 373-74; Patrick Henr y, Virginia Convention Deba te of June 9, 1788,

repr inted in ORIGIN, supra not e 37, at 380-8 1; George Ma son , Virginia Conve nt ion

Debate of June 14, 1788, reprinted in ORIGIN, supra note 37, at 401-02; Patrick

Hen ry, Virginia Conven tion Debate of J une 14, 1788, reprinted in ORIGIN, supra note

37, at 406, 410.

If, th er efore, the pre sent ca se tu rn ed upon th e qu estion ,

wheth er a State might organize, a rm , an d discipline it s own

militia in the absence of, or su bordin at e to, th e r egu lation s of

Congress, I am certainly not prepared to deny the legitimacy

of such an exercise of authority. It does not seem repu gnan t in

its nature to the grant of a like paramount authority to

Congress; and if not, then it is retained by the States. The fifth

[sic] am en dm en t t o th e constitu tion , declaring that “a well

regulated militia being necessary to the security of a free

State, th e righ t of the people to keep an d bea r a rm s shall not

be infrin ged ,” ma y not, perhaps, be thought to have any

important bearing on this point. If it have, it confirms an d

illustrates, rather than impugns the reasoning already

suggested.

Justice Story’s hypothetical, fifty-two pages into the case,

marks the first appearance of the Second Amendmen t in

Supreme Court jurisprudence. Justice Story’s main point was

that the state exercise of militia power would not be

inconsistent with Congressional militia power, since

(hypothetically) Congress would be ignoring the militia.

After

conceding that the Second Amendment (dubbed the “fifth”

amendment in a typo) was probably irrelevant, Justice Story

suggested that to the extent the Second Amendment was

relevant, it supported his position. J ust ice Story’s point was n ot

unreasonable. The entire Bill of Rights, after all, was animated

by fear of feder al abuse, and several of the Anti-Federalists

raised concerns that the federal government might totally

neglect the militia and thereby render it useless.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1385

For federa list re assu ra nces t ha t t he st at es r etain ed con cur re nt power t o ar m and

discipline the militia, which could be used in case of federal neglect, see An Im partial

Cit izen , VA. GAZ., Mar . 13, 1788, reprinted in ORIGIN, supra note 37, at 299 ; Rich ard

Henry Lee, Virginia Convent ion Deba te of J une 9, 1788, reprinted in ORIGIN, supra

note 37, at 382-83; John Marsh all, Virginia Convention Debate of Jun e 16, 1788,

repr inted in ORIGIN, supra note 37, at 426.

85. See Hen igan , supra note 12, at 22 (“[Ame rican colonists] sough t in the Bill

of Rights a r ea ffirm at ion of t he rig ht of th e st at es t o ha ve t he ir own armed militia,

composed of ordinary citizens, as a check on th e power of th e sta nd in g arm y.”);

Henigan, Arms, Anarchy, supra note 2, at 116 (“[T]h e Secon d Amen dm en t d id a ffect

some change in the Constitutional scheme; presuma bly the Framers did not adopt the

Bill of Right s in 179 1 with th e in te nt to l ea ve t hing s a s t he y we re in 178 7.”).

86. The reporter ’s text sum marizes t he argumen ts pr esented by each side. See

id. at 4-12.

87. Hou ston , 18 U.S. at 53. The Supreme Court decided one other militia case

during this period. Writing for a unanimous Court, Justice Story held that the

President’s determination of the need for a m ilitia call-out was not subject t o judicial

review. S ee Ma rt in v. Mott , 25 U.S. (1 2 Wh ea t.) 19, 28-3 9 (18 27).

The lea ding scholar of anti-individual Second Amendment

interpretation, Dennis Hen igan, argues that the Second

Amendment, rather than guaranteeing an individual right,

limits some of the federal powers over the militia granted by

Article I, Section 8.

If Heniga n’s t heory were true—if t he

Second Amendment were a guarantee of state control over the

militia—then the Second Amendment should have been at the

center of Houston v. Moore. The precise issue in the case was

Pennsylvania’s assertion of authority over the militia. Under

the state power theory of the Second Amendment, the strongest

argument that Pennsylvania’s attorneys could have made

would have been to point to the Second Amendment. But the

Second Amendment never entered their arguments.

If the

Second Amendment were understood as a right of state

governments against federal control of the militia, then the

total absence of the Second Amendm ent in the rea son ing of the

state’s attorneys and the pro-state Justices is inexplicable.

Justice Story’s dissent is incongruen t wit h Heniga n’s t heory

that the Second Amendment somehow reduces Congress’s

militia powers. In the paragraph following the Second

Amendment hypothetical, Justice Story affirmed that whenever

Congress is actually exercising its Article I powers over the

militia, the power of Congress is exclusive, and there is no room

for any state control, “however small.”

Like the writings of St. George Tucker, the Houston v.

Moore decision is absent from the anti-individual articles.

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1386 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

88. WILLI AM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STAT ES OF

AMERICA (1825).

89. See The R aw le R ead ing R oom at Temple University Law Library (visited

Nov. 8, 1998) <http://www.tem ple.edu/departm ent s/lawschool/II-ra wlecollection.h tm >

[herein-after Rawle R ead ing Room ]. Rawle also served as a trustee of the University

of Pennsylvania. See Trustees of the University of Pennsylvania (visited Nov. 23, 1998)

<htt p://www.upenn.edu/AR/1830/trustees.ht ml>.

90. See Cha rles Sum ner Lobinger, William Rawle, in THE DICTIONARY OF

AME RICAN BIOG RAP HY (CD-ROM ed. 1997) [hereinafter DICT. AM. BIO.].

91. Michael G. Collins, Article III Cases, State Court Duties, and the Madisonian

Compromise, 1995 WIS. L. REV. 39, 75. Like Tucker, Rawle was also a friend and

correspondent of Thoma s Jefferson . See Kates, Hand gun Prohibit ion, supra note 1,

at 241 n.159.

92. See D. BROWN, EULOGIUM UPON WILLIAM RAWLE 15 (1837), cited in Kates,

Handgun Proh ibit ion, supra note 1, at 242 n.161.

93. In that capacity, he prosecuted the leaders of the Wh iskey Insur rections. See

Lobinger, supra note 90.

94. Joel Fish ma n, Th e Reports of th e S uprem e Court of Pennsylvania, 87 L.

LIBR. J. 643 , 653 (19 95).

Unlike the Amer ican Blackstone, the 1820 Houston case is not

contemporaneous with the creation of the Second Amendment,

but neither is it far removed from the founding era. And the

implications of the case are just as inconsistent with the anti-

individual theories of the Second Amendment as are the direct

statements made by St. George Tucker.

C. William Rawle

Supplanting Tucker’s Blackstone as the leading American

constitution al treatise was William Rawle’s 1825 A View of the

Constitution of the United States of America.

A View of the

Constitution was used, among other places, at the United

States Military Academy at West Point.

The treatise enjoyed

sufficient popularity for there to be a second edition, and there

would have been a third had Rawle not passed away in 1836.

Like Tucker, Rawle was a distinguished attorney long

before he became an “influential treatise writer.”

Elected to

the Pennsylvania legislature in 1789, Rawle declined George

Washington’s repeated offers to serve as the first Attorney

General.

Rawle accepted Washington’s appointment as United

States Attorney for Pennsylvania, however, and held the post

from 1792 to 1800.

A pr odigiou s scholar, Rawle authored

many law books in addition to his constitutional treatise,

although the tr eat ise is the only one that rema ins in print

today. “[O]ne of the most respected lawyers of the day,”

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1387

95. See Th e Ra wle Rea di ng Room , supra note 89.

also founded Rawle & Henderson, which is now the oldest law

firm in the United States.

Rawle described the Second Amendment at length:

In th e se cond ar ticle, it is declar ed, th at a well regulated

militia is n ecessa ry to th e secu rit y of a free state; a proposition

from which few will dissent. Although in actual war, the

services of regu lar t roop s are confessedly m ore valuable; yet,

while peace prevails, and in the commencement of a war

befor e a r egu lar for ce can be r aised, the m ilitia form the

palladium of the country. They are ready to repel invasion , to

suppress insurrection , and preserve the good or der a nd p ea ce

of government. That they shou ld be well r egu lat ed, is

judiciously add ed . A disor de rly m ilit ia is d isgracefu l to itself,

and dangerous not to the enemy, but to its own country. The

duty of the stat e govern ment is, to adopt such regulation s as

will tend to make good soldiers wit h th e least in te rr upt ions of

the ordinar y and u seful occu pa tion s of civil life. In this all the

Union has a strong and visible interest.

The corolla ry, from th e first position , is, that th e righ t of

th e peop le to k eep a nd bear arm s sh all n ot be in fringed .

The pr ohibit ion is ge ner al. No clau se in th e Constitu tion

could by any rule of construction be conceived to give to

congress a power to disarm th e people. Such a flagitiou s

attempt could only be made under some gener al preten ce by a

state legislatu re. B ut if by a ny blin d p ursu it of inordinate

power, either should attempt it, this am endm ent m ay be

appealed to as a restraint on both.

In most of the countries of Europe, this right does not seem

to be den ied , alth ough it is allowed more or less sparingly,

according to cir cum stan ces. In England, a country which

boasts so much of its freedom, the right was secured to

protestant su bject s on ly, on the revolut ion of 1688; and it is

cau tiou sly described to be that of bear ing ar ms for t heir

defence, “suita ble to t heir cond ition s, and a s allowed by law.”

An ar bitra ry code for the preservat ion of game in th at coun tr y

has long disgra ced t hem. A very sm all pr oportion of the pe ople

bein g pe rm itted to kill it, though for their own su bsisten ce; a

gun or other instrument, used for that purpose by an

unqualified person, m ay be seized or forfeite d. B lacks tone, in

whom we regret that we cannot always trace the expanded

principles of ra tion al libert y, observes however , on this subject,

that the prevention of popular insurrections and resistance to

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1388 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

96. WILLI AM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF

AMERICA (Leon ar d W. Levy ed., Da Cap o Pre ss 197 0) (2d ed. 1829) (citations and

footnotes omitt ed). N ot a ll of Ra wle’s constitu tion al ana lysis was vindicated by

his tor y. His fin al ch ap ter m ain ta ine d t ha t s ta tes h ave a r ight t o secede fr om t he

Union—a reasonable position in 1825, but one which was dealt a serious blow by

Joseph Story in the next decade and which, whether r ightly or wrongly, was

decisively sett led by th e Union victory in the Civil War. Even when not vindicated

by subsequ ent decades, however, Ra wle is st ill u sefu l for u nder stan din g th e st at e of

Ame ri can legal thinking in the 1820s.

The last sentence in t he quote cited to 3 EDWARD COKE, THE FIRST PART OF THE

INSTITUTES OF THE LAWS OF ENGLAND 160 (Garland Publ. 1979) (1628); 1 WILLI AM

HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 126 (Garland Publ. 1978) (1716)

(explaining th at th e J ustice of the Peace may requ ire su ret y from per sons wh o “go

about with unusu al Wea pons or Attendan ts, t o the Terror of the P eople”). See RAWLE,

supra note 96, at 126 n .‡. Haw kin s elsew here explained tha t t he 1328 St at ut e of

Northampton (against wearing arms in public) was limited in its construction, so

[t]hat no wearing of Arms is within the mea ning of this Sta tute, unless it

be accompan ied with such Circumstances as are apt to terrify the People;

from when ce it seem s clear ly to follow, That P ersons of Quality ar e in no

Danger of Offendin g ag ain st th is Sta tu te by we ar ing comm on Weapon s, or

having their usual Number of Attendants with them, for t heir Orna ment or

Defence, in su ch Places, a nd upon such Occasions, in which it is the

comm on Fa sh ion t o ma ke us e of them, withou t ca us ing th e leas t Sus picion

of an In te nt ion to com mit a ny Act of Violen ce or Distu rban ce of the Peace.

And from the same Ground it also follows, Tha t P ersons arm ed with privy

Coats of Mail to the Int ent to defend themselves against th eir Adversaries,

are not within the Meaning of the Sta tute, because they do noth ing in

terrorem populi.

S ect. 10. VI. That no Person is with in th e Intention of said Statute, who

arms himself to suppress Rioters, Rebels, or Enemies, and endeavours to

suppress or r esist su ch Dist ur ber s of the Pe ace or Quie t of th e Realm ; for

Persons who so arm themselves, seem to be exempted out of the general

Words of the said Statute, by that Part of the Exception in the beginning

th er eof, which s eem s t o allow all Pe rs ons to arm themselves upon a Cry

made for Arms to keep the Peace, in such Places where such Acts happen.

1 HAWKINS, supra, at 136. It was not surprising that Rawle used Hawkins as an

authority. The Hawkins treatise went through seven editions in the eighteenth

century, and one m ore in the nin eteent h. See A.W.B. Simpson, The Rise and Fall of

the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. CHI. L.

government by disarming the people, is oftener meant than

avowed, by makers of forest an d game laws.

This right ought not, however, in an y governm ent, to be

abused to the disturbance of the pu blic peace.

An assem blage of persons with a rms, for an unlawful

purpose, is an indict ab le offen se, an d even th e carr ying of

arms abroa d by a single individ ua l, attend ed w ith

circumstances giving just reason to fear that he purposes to

make an unlawful use of t hem, would be sufficient cause to

require him to give su rety of the pea ce. If he refused he would

be liable for imprisonment.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1389

REV. 632, 653 (1 981) (n oting that Hawkins sought to interpret the criminal laws

based on pr incipl es of just ice a nd re as onab len ess).

Coke’s treatise was written to defend civil liberties and the common law against

monarchial absolutism. Paraphr asing Ovid, Coke noted that “the laws permit the

taking up of ar ms against ar med persons.” 3 COKE, supra, at 162; see also

HALBROOK, THAT EVER Y MAN BE ARMED, supra note 1, at 19 (citing Ovid, Artis

Amatoriae III (line 492), in 2 OVID 118, 152-53 (J . Mozley transl., 1969) (“The laws

allow ar ms to b e t ak en agai ns t a n a rm ed foe.”)).

97. RAWLE, supra note 96, at 153-54.

98. See id. at 155-61.

99. Id. at 125.

Rawle’s analysis of federal powers over the militia noted the

value of widespread arms ownership to a good militia:

In a people perm itt ed and a ccustomed to bear arms, we

have th e rud iments of a m ilitia, wh ich pr operly cons ist s of

arm ed citizen s, divided int o military bands, and instructed at

least in part in the use of arm s for the purposes of war. The ir

civil occupa tions a re not r elin qu ish ed, except while they are

actually in t he field, and th e inconvenience of with dr aw ing

them from their accustomed labors, abridges the time required

for military instruction. [Rawle then explicated how standing

arm ies, with th eir stronger habits of obedience, usually prove

su perior to m ilitias in th e field .]

. . . .

But notwithstanding their inferiority to soldiers schooled

and practised in the field, gallant actions have been performed

by our militia collectively. T he ca pt ure of a n entire army under

General Burgoyne in 1777, and the celebrated defence of New

Orleans in 1814, wer e chiefly effected by militia.

But however inferior in military estimate to armies

regular ly trained, the militia constitutes one of the great

bulwarks of the nation, and nothing which ten ds to improve

and support it should be neglected.

Rawle discussed Houston v. Moore and argued strongly against

the “states’ rights” position on this issue; he suggested that

federal deter mination of the necessit y of a militia call-up was

unreviewable by state governmen ts or by t he courts.

Rawle’s high regard for the militia was typical of his time.

He clearly explained that the Second Amendment does not

protect only potential militia members, for “[t]he prohibition is

general.”

(Thomas Cooley’s treatise, half a century later,

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1390 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

100. THO MAS M. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE

UNITED STATES OF AMERICA 298 (Andr ew C. McLa ughlin e d., Litt le, Brown, & Co.

1898) (1880); see also infra note 403 and accompanying text.

101. See Ba rr on v. Baltimore , 32 U.S. (7 Pe t.) 243 , 248-49 (1833).

102. See generally David B. Kopel & Glenn H. Reynolds, Taking Federalism

Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 CONN. L. REV . 59 (1 997 ).

103. See RAWLE, supra note 96, at 125.

104. See CRAMER, supra note 1, at 69-70; Amar, Fou rteent h A m end m ent , supra

note 1, at 1203-04; Dowlut, The Right to Arms, supra note 1, at 84-85; Gottlieb, supra

note 1, at 131; Kat es, Ha nd gun Prohibit ion, supra note 1, at 242-43; McAffee &

Quinlan, supra note 1, at 869-70.

105. The sole an ti-individua l au th or t o address Rawle is George Anasta plo. See

George Anastaplo, Am end m ent s to th e Con stitu tion of th e United States: A

Commentary, 23 LOY. U. CHI. L.J. 631 (1992). Ana st aplo cha ra cterizes Rawle a s pr o-

regulation, based on Rawle’s statement: “This r ight ought not, h owever, in any

government, to be abused in the distur bance of public peace.” Id. at 691. Anastaplo

then asserts that the modern “proliferation of weapons” disturbs the public peace. Id.

Anastaplo thereby confuses concern about t he a buse of a right into opposition to the

right its elf—as if be ing oppos ed t o spe eding wer e the sa me as bein g opposed to t he

ownership of autom obiles. An asta plo does n ot a ddr ess th e fact t ha t Rawle’s position

on th e Secon d Am en dm en t is e xplicit ly in consis te nt wit h An astopolo’s claim that the

early repu blic understood the Second Amendment as guaranteeing no individual right.

106. JOSEPH S TORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

(Fred B. Rothman & Co. 1991) (1833).

would echo Rawle on the Second Amendment, sta ting “The

Right is General.”

100

)

Writ ing long before Barron v. Baltimore refused to enforce

the Bill of Rights against the states,

101

Rawle considered the

Second Amendment a limit on state and feder al disarmament of

the people. And writing a century and a half before the

Congressional power “to regulate commerce . . . among the

several States” was construed as a power to ban the simple

intrastate possession of firearms,

102

Rawle stated that, even

putting the Second Amendment aside, Congress would have no

power to disarm the people.

103

Like Tucker’s Blackstone, Rawle’s A View of the

Constitution is cited by the Standard Modelers,

104

but is

conspicuously absent from law review articles asserting that

the Second Amendment is not an individual right.

105

D. Joseph Story

The American Republic’s next major constitutional treatise

was the 1833 Com m entaries on th e Constitution of the Un ited

States,

106

written by Joseph Story while teaching at the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1391

107. ROBERT COVER, JUSTICE ACCUSED: ANT ISL AVER Y AND THE JUDICIAL PROCESS

238 (1975).

108. See MCCLEL LAN, supra note 79, at 40-41.

109. See RAWLE, supra note 96, at 295-310.

110. MCCLEL LAN , supra note 79, at 42. The treatises, which grew out of lectures

at Harvard, are PROMISSORY NOTES (1845), BILLS OF EXCHANGE (184 3), P ARTNERSHIP

(1841), AGENCY (1839), EQU ITY PLEADINGS (1838), EQUITY JURISPRUDEN CE, 2 vol.

(1836), THE CONFLICT OF LAWS (1834), ON THE CONSTITUTION, 3 vol. (1833), and

BAILMENTS (1832). In th e 1997 m ovie Amistad, retired Justice Harry Blackm un plays

the role of Joseph St ory.

Harvard Law School. Story was the dominant legal figure of

pr e-Civil War Amer ica.

No man eve r w as m ore ste eped in th e la w, in tellect ually and

interpersonally. Professional study, th e com m on elemen t for

bench an d ba r, a tt ain ed n ew levels with Story. He wr ote n ine

important treatises, taught at—virtually created—the

Har vard Law School . . . .

107

President Madison appointed Joseph Story to the Supreme

Court in 1811; at age 32, he was the youngest man ever

nominated.

108

He served on the United States Supreme Court

until 1845. After John Mar shall, no Justice of the early Court is

considered more influential on Supreme Court jurisprudence.

In 1840, Story authored an expanded version of th e

Com m entaries, and also wrote a popularized version, entitled

Familiar Exposition of the Constitution of the Un ited States.

Story’s constitutional treatises differed in important ways from

their predecessors; he was far more enthusiastic about broad

federal powers. Rawle had explicated the authority of states to

secede from the Union.

109

But Story alm ost single-handedly

created the doctrine of an indissoluble Union, a doct rine which

would carry the day intellectually in the North . Each of Story’s

treatises was “a major success” and some were still in use in

the twentieth centur y.

110

1. The Second Amendm ent in S tory’s Commentaries

Story’s commentary on the Second Amendment would later

be quoted in numerous Standard Model law review articles. For

example, the following Story quotation appeared in Sanford

Levinson’s 1989 article The Embarrassing Second Amendment:

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1392 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

111. Compare this language to Tucker’s statement that t he militia “may be

considered as the true palladium of liberty.” 1 BLACKSTONE, supra note 14, app. at

300. Justice Thomas quoted Story’s language in h is concurring opinion in Printz v.

United States, 117 S. Ct . 2365, 238 6 (1997) (T homa s, J ., con cur ri ng).

112. 3 STORY, supra note 106, a t 746, § 1890, quoted in Hen igan , Arms, Anarchy,

supra note 2, at 119, and in Levinson, supra note 1, at 649.

113. See Hen igan, Arms, Anarchy, supra note 2, at 119.

114. 3 STORY, supra note 106, at 746-47, quoted in Henigan, Arms, Anarchy,

supra note 2, at 119-20.

The right of th e citizens to keep an d bear ar ms h as justly been

cons idered as the p alladiu m of th e libertie s of a re pu blic;

111

sin ce it offers a stron g m ora l check against the usurpation and

arbitrary power of rulers; and will generally, even if these are

successful in the first instan ce, enable the people to resist and

triumph over them.

112

In response to Levinson’s quotation of Story in his article,

Dennis Henigan accuses Levinson of purposely omitting the

remainder of Story’s passage, which states:

113

And yet , th ough th is t ru th wou ld seem so clear, and the

im por ta nce of a well regulated militia would seem so

undeniable, it cannot be disguised t hat, a mong the Am erican

people, there is a growing indifference to an y system of militia

discipline, and a strong disposit ion, from a sen se of its

burdens, to be r id of a ll regu lations. H ow it is p ra ctica ble to

keep th e people duly ar med, with out 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 gradu ally un der mine all the protect ion in tend ed b y th is

clause of our national bill of rights.

114

However, nothing in the second part of the passage (quoted

by Henigan) changes the meaning in the first part (quoted by

Levinson). In both parts, Story sought to maintain militias as a

counterweight to a standing army. He bemoaned the declining

interest of the people and their state government s in militia

training. Nothing Story said in the second through fourth

sentences changes the mea ning of Story’s first senten ce, which

asserts that the right to bear arms belongs not to state

governments but to “the citizens.” The purpose of this right is to

deter tyran ny and allow popular revolution to unseat a tyr ant.

Henigan does some selective quoting of his own. While he

chastises Levinson for not quoting a footnote in which Story

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1393

115.

It would be well for American s to reflect upon the passage in Tacitu s, (Hist .

IV. ch. 74): “Nam neque quies sine armis, neque arma sine stipendiis,

neque stipendia sine t ributis, haberi queunt.” Is t here an y escape from a

large standing army, but in a well disciplined militia? Th er e is mu ch

wholesome inst ruction on th is subject in 1 Black. Comm. ch. 13, p. 408 to

417.

3 STORY, supra not e 106, at 747 n .1; see also Hen igan , Arms, Anarchy, supra note 2,

at 120. Henigan mistakenly asserts that the pen ult imat e sent ence is a t ra ns lat ion of

the Tacit us quote. S ee Hen igan, Arms, Anarchy, supra note 2, at 120. Actually, t he

sentence is Story’s own. The Tacitu s quote, t ran sla ted, is : “For th e tra nquillity of

nations cannot be preserved without armies; armies cannot exist without pay; pay

cannot be furnish ed without tribu te; all else is common between us.”

116. See Hen igan, Arms, Anarchy, supra note 2, at 119-20.

117. See supra text accompanying note 96.

118. The footnotes appear in su pport of the t ext quoted by Le vinson . See 3

STORY, supra note 106, at 746, nn .1-2 (citing “I T u ck er ’s B la ck . C om m . App . 2 99 ” a nd

“1 Tucker’s Black Comm . App. 300; Rawle on Const. ch. 10, p. 125; 2 Lloyd’s Debates

219, 220”). The last cited sou rce, Lloyd’s Debates, was a record of discussion in

Congress. Justice Story’s citation is to the First Congress’s debate of August 17, 1789,

regarding the Second Amendment. On the cited pages, the House has gone int o a

Committee of the Whole. The text of t he am endm ent u nder considera tion re ads: “A

well regulated milit ia, composed of th e body of th e pe ople, being th e best secu rity of

a free st at e; the right of th e people to keep and bear a rms shall not be infringed, but

no pers on, being r eligiously scrupulous, shall be compelled to bear arm s.” 2 THOMAS

LLOYD , THE CONGRESSION AL REGIST ER; OR, HISTORY OF THE PROCEEDINGS AND DEBATES

OF THE FIRST HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA 219-21

(N.Y., Hodge , Alle n, & Ca mp bel l 1789).

Massachusetts Representative Elbridge Gerry began:

This declaration of rights, I t ake it, is intended to secure the people

against the mal-administrat ion of the government; if we could suppose that

in all cases the right s of the people wou ld be at te nd ed t o, th e occasion for

guards of this k ind would be rem oved. Now I am appreh ens ive, sir, that

this clause would give an oppor tunity to the people in power to dest roy the

constit ut ion itself. They can declare who are those religiously scrupulous,

and prevent them from bearing arms.

What, sir, is the use of a m ilitia? I t is to pre ven t t he est ablish me nt of

a sta nding army, the ba ne of liberty. Now it must be evident, that under

this provision , togethe r w ith t he ir oth er powe rs , congress cou ld t ak e such

measures with respect to a militia, as make a sta nding army necessary.

Whenever governm ent mea n to invade the rights and liberties of the people,

they always attem pt to destr oy the m ilitia, in order to r ais e an a rm y upon

their ruins. This was actually done by Great Br itain at the commencement

of the lat e revolution. Th ey used every means in their power to prevent the

establishment of an effective militia t o th e ea st ward. Th e asse mb ly of

Massachusetts, seeing the rapid pr ogress th at administ ration were makin g,

denounced standing armies,

115

Henigan omits two other Story

footnotes

116

citing passages from Tucker and Rawle

117

enthusiastically praising the wide scope of the in dividu al right

to keep and bear arms.

118

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1394 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

to divest them of their inherent privileges, endeavored to counteract th em

by the organization of the militia, but they were always defeated by the

influence of the crown.

Id. at 220. Rep. Seney then asked whether there was an issue before the committee

of the whole. Rep. Gerry

[r]eplied, that he meant to make a motion, as he disapproved of th e words

as they stood. He then proceeded, No attempts that they made, were

successful, until they engaged in th e struggle which emancipated th em at

once from their thraldom. Now, if we give a discretionary power to exclude

those from militia duty who have religious scruples, we may as well make

no provision on this head; for this reason he wished the words to be altered

so as to b e con fined to persons belon gin g to a re ligiou s se ct, s cru pu lous of

bearing arms.

Id. Rep. J ackson moved that an exemption from militia duty be gra nted “upon pa ying

an equivalent to be est ablished by law.” Id. at 221 (Lloy d’s use of “f” for “s” changed

to reflect modern usage). The same material is also in House of Representatives

Debates of August 17, 1789, reprinted in ORIGIN, supra note 37, at 695-96. Lloyd’s

records of Congressiona l debates were not full transcripts, but rather his embellished

reconstructions of th e spee ches h e t hou ght m ost inte re sting; m an y pers ons accu sed

Lloyd of inaccur at e r epre sent at ions of t he debates. S ee Mar ion Tin ling, Thomas

Lloyd’s Reports of the First Federal Congress, 18 WM. & MARY Q. 3D 519, 531-33

(1961).

In following pages (not cite d by S tor y), the Hou se n ar rowly r eject ed a mot ion t o

delete the ent ire exempt ion for th e religiously scr up ulou s a nd lea ve exem ptions for

pacifists dependent on the beneficence of the legislatur e.

Rep. Gerry then moved to amend the first clause to read “a well regulated militia,

trained to arms,” in order to ensure that the governmen t would not neglect militia

training. The motion failed for lack of a second. Rep. Burke moved for an additional

amendment, denouncing st an din g ar mies, an d requ iring two-th irds vote from both

houses for a standing army to be raised. The motion was defeated. The House spent

the remainder of the day debating the proposals which beca me th e Th ird, F our th ,

Fifth, an d Sixth Amendmen ts. See 2 LLOYD , supra, at 221-29.

As we shall see below, Gerry’s view that the Second Amendment’s overarching

purpose was to guarantee the survival of the state militia was widely sha red by

nineteenth century courts and commentators. Like Justice Story, most of the courts

and comm en ta tor s saw not hing incons ist en t in t he Ame nd me nt ’s pur pose t o pr otect

the militia (e xtolled by Gerr y, Tu cker, a nd Rawle, all of whom were cited by St ory)

and the Amendment’s protection of firearms ownership for personal uses (specifically

mentioned by Tuck er an d Ra wle , and cited by S tor y).

119. See Andrews v. State, 50 Tenn. (3 Heisk.) 165, 183-84 (1871), discussed infra

in text a ccompanying notes 210-227.

The above passages from Justice Story were quoted by an

1871 Tennessee Supr em e Court opinion as authority for the

exact point that the Second Amendment, in order to secure a

militia, guarantees a general right of individuals to have

weapons.

119

Story concluded by contrasting the strong right in America

with the weak one in England:

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1395

120. 3 STORY, supra note 106 , a t 747 (footn ote s om itte d).

121. See Madison, supra note 37.

§ 189 1. A similar p rovision in favour of prot esta nts (for to

them it is con fined) is to be found in the bill of rights of 1688, it

bein g declare d, “that t he subjects , wh ich are protestants, may

have ar ms for th eir defence su ita ble to t heir cond ition , an d a s

allowed by la w.” But under various pretences the effect of th is

pr ovision has been greatly n ar rowed; a nd it is a t presen t in

England more nominal than real, as a defensive privilege.

120

Here, Story closely t racked Madison ’s n otes on the Second

Amendment, in wh ich Madison contrasted the Second

Amendment with the narrower English right, the latter being

unsatisfactory because it was confined to Protestants.

121

2. The Second Amendm ent in S tory’s Familiar Exposition

Story’s 1840 const itutional la w book intended for a popular

audience, Fam iliar Exposition of the Con stitution of the Un ited

States, contains some Second Amendment material not found in

the Com m entaries. The Familiar Exposition removes any

possible doubt that Story saw the Second Amendment as

guaranteeing an important individual right:

The next amendment is, “A well-regula ted m ilitia bein g

necess ary to the secu rity of a free state, the right of the people

to keep an d bea r a rm s shall not be in frin ged .” One of t he

ord inary modes, by which tyrants accomplish their purposes

without re sista nce, is, by disa rm ing the people, and m aking it

an offence to keep arms, and by substituting a regular ar my 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 th e public m ind t o sacrifice, for the sake of mere

private conven ien ce, this powerfu l check upon th e design s of

ambitious men.

The importance of this article will scarcely be doubted by

any persons, who have duly reflect ed upon the subject. The

militia is the natural defence of a free country against sudden

foreign invasions, dom est ic insur rections, and dom estic

usurpations of power by rulers. It is against sou nd p olicy for a

free people to keep up large military esta blishments and

standing ar mies in tim e of pe ace, both from th e en orm ous

expenses, with which they are attended, and the facile means,

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1396 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

122. JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED

STA TES 264-65 (1842) (quotin g U.S CONST. am en d. I I).

123. Henigan, Arms, Anarchy, supra note 2, at 120.

124. Id.

How can the militia be a collection of citizens wit h the const itutionally

guaranteed right to engage in armed resistance against t heir government

if the Constitution itself grants Congress the power t o call out the m ilitia

“to execute the laws of the Union [and] suppress insurrections . . . .”? The

Constitu tion cann ot view th e militia both as a means by which government

can suppress insurrection and as an instrument for insurrection against the

which th ey a fford to a mbitious a nd u npr incipled r uler s, to

subvert th e governmen t, or tr am ple u pon th e r igh ts of the

people. The right of the citizens to keep and bear arms has

justly been considered, as t he p alla dium of th e lib er ties of a

re pu blic; sin ce it offers a strong moral check against the

usurpation and arbitrary power of rulers; and it will generally,

even if these are successful in the first instance, enable the

people to r esist an d t riu mph over th em . And yet, though t his

truth wou ld seem so clear, and th e im portance of a well-

regulated militia would seem so unden iable, it cannot be

disguised, th at am ong th e Am erican people th ere is a grow ing

indifference to any system of m ilitia disciplin e, a nd a stron g

disposition , from a sense of its bur den s, to be rid of all

regu lation s. How it is pr act icable to keep th e pe ople duly

arm ed withou t some organizat ion, it is difficult to see. There is

certainly no small danger, that indifference may lead to

disgust, and disgust to contempt; and thu s gr ad ua lly

undermine all the protection intended by this clause of our

National Bill of Rights.

122

Can any fair-minded r eading of J ust ice Story support

Henigan’s position that the federal government has the

unquestioned constitutional authority to outlaw the possession

of firearms in the United St ates? Or would Story bemoan

Henigan’s organization—whose members were never required

by their state governments to possess arms and to learn how to

use them in militia dr ill—as fulfilling Story’s fears “that

indifference may lead to disgust, and disgust to contempt”?

One of Henigan’s central errors is his “either/or” view of the

militia. Story saw the militia as a defense “against . . . domestic

insurrections.”

123

Henigan finds t his insu rrection-su ppression

view to be “itself inconsistent with the notion that the militia is

the armed citizenry poised to engage in domestic

insurrection.”

124

But Story also exulted that when “citizens” are

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1397

government . It must be one or the other.

Id. at 115. Henigan ignores the fact that his sta te’s r ight t he ory implie s a rig ht of

state governments to revolt against t he federal gover nm en t. He ni gan’s t he ory (if h e

actu ally believed it as a matter of constit utional interpretat ion, rather than as a

defense against the Standard Model) would thereby repr esent post hoc justificat ion

for th e Confederate t heor y of secession in the Civil War. S ee Lun d, Past and Future,

supra note 1, at 31-32 n.72.

125.

In the next place, the actual m oral and intellectual power, and even

ph ysical power, of the state in its present organization, may be so combined

in the st ructure of the government, that they ma y present insu pera ble

barriers to an y chan ge. If, for instance, the whole of the privileged classes

should happen to be the only edu cated persons in the na tion; if th e whole

priesth ood should depen d upon the governmen t for its influence and

support, and its exclusive patronage and privileges; if th e wh ole we alt h of

the comm un ity sh ould be lod ged in a few h an ds, an d thos e few should be

the ver y hea ds of the government; if the military power should be so

organ ized, th at it could scar cely find th e m eans , or possess th e power , to act

except under the existing arrangements;—in any, and in all of these cases,

it is easy to perceive, that there would be immen se difficulties in

introducing any fundamental and salutary change. It could scarcely take

pla ce but u pon som e genera l convuls ion, which could break asunder all the

comm on ties of society.

Joseph Stor y, Natural Law (1836), reprinted in MCCLEL LAN, supra note 79, at 318-19.

126. See MCCL ELL AN, supra note 79, at 6. Like many other legal analysts of his

era, Story believed in a n atural-law right to self-defense since “self-preservation” was

one of th e du ties th at ea ch m an na tu ra lly h ad to h im self. “[A] man h as a p er fect

right to his life, to his personal libe rt y, a nd to h is p rop er ty; an d h e m ay by for ce

assert and vindicate those rights against ever y aggressor .” Story, supra note 125, at

314-15.

127. As Alexander Hamilton wrote:

If the federal government should overpass the just bounds of its authority

and make a tyrannical us e of it s powers , the people , wh ose cre at ur e it [th e

Constitution] is, must appeal to the standard they have formed, and take

such measur es to redress the in jury don e to the Constitution as the

exigen cy may suggest and pr uden ce justify.

THE FEDERALIST NO. 33 (Alexan der H am ilt on). H am ilt on also p re dict ed th at if the

armed, they can resist usurpation; the right to bear arms

allows the “people to resist and triumph over” their oppressors.

Indeed, J ust ice Story explicit ly promoted the dispersion of

armed force in a society as facilitating needed changes in

government.

125

Nor was violent resistance to tyranny an

abstract notion to Story; his father had been one of the Indians

in the Boston Tea Party.

126

The notion that the American people

could be trusted both to suppress illegitimate insurrections and

to overthrow tyranny may seem self-contradictory to late

twentieth-century American antigun lobbyists. But it was an

obvious truth to J ustice Story.

127

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1398 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

federal government attempted to use th e militia to impose tyranny on reca lcitrant

states, “whither would the militia” march itself “but to the seat of the tyrants, who

had meditat ed so foolish as well as so wicked a project; to cru sh t hem in their

imagined intrenchments of power and to make them an example of the just

ven gea nce of a n abu sed a n d i nce n sed pe op le ?” T HE FEDERALIST NO. 35 (Alexander

Ha mi lton).

128. See 3 STORY, supra note 106, at 81-95, §§ 1194-1210.

129. See id. at 81, § 1196.

130. Id. at 82, § 119 7 (foot note omitte d).

131. See Eh rm an & Hen igan , supra note 2, at 7.

132. 3 STORY, supra note 106, at 85, § 1202.

133. See id. at 85 n.5 & 86 nn.1-2, § 1202.

3. The federal militia powers in Story’s Commentaries

Story’s treatise also contained an extensive section on the

militia powers in Articles I and II of the Const itution.

128

Story

extolled the militia and explained that while the posse

comitatus (the able-bodied males of the county subject to the

sheriff’s call to enforce the law) would suffice for maintaining

law and order in most situations, there were some

circumstances in which either a militia or a standing army

would be necessary.

129

Story disparaged anti-federalist fears about granting federal

power over the militia. He noted that these fears “produced

some propositions of amendment in the state conventions,

which, however, were never du ly r atified, and h ave long since

ceased to be felt, as matters of general concern.”

130

Here, Story

directly undermined Henigan’s theory of the Second

Amendment. Henigan claims that the Second Amendment was

a restraint on the federal government’s militia powers.

131

Story

claims that none of the proposals for restrictions on federal

militia powers were ever ratified.

Story then discussed in great detail the division of federal

and state powers over the militia. He suggested, “If congress

did not choose to arm, organize, or discipline the militia, there

would be an inherent right in the states to do it.”

132

In support

of this proposition, Story cited Houston v. Moore, Rawle’s

treatise, Tucker’s Blackstone, and various portions of E lliot’s

Debates.

133

While Story’s dissent in Houston v. Moore had

suggested that the Second Amendment, if relevant at all, would

also support this proposition, Story did not in his Com m entaries

cite the Second Amendment for support of state militia powers.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1399

134. Id. at 87, § 1202.

135. See id. at 87 n.1, § 1202.

136. See David Cobin & P aul Fin kelm an, Introduction to 1 HENRY S T . G EORGE

TUCKER , COMMENTARIES ON THE LAW OF VIRGINIA: COMPRISING THE SUBSTANCE OF A

COURSE OF LECTURES DELIVERED TO THE WINCHEST ER LAW SCHOOL, at i (The Lawbook

Exchange, Ltd. 1998) (3d ed. 1846). He nr y St . Geor ge Tuck er wa s n ot the literal “son”

of St. George Tucker. Henry was actually the child of a distant Bermuda re lative. At

an early age, however, H enry went to live with St. George Tucker, who raised him,

but never form ally a dopted him . See Armistead M. Dobie, Hen ry S t. George T uck er,

in DICT. AM. BIO., supra note 90.

137. Under Tucker’s leadership, the Virginia Court–in great contrast to other

Southern cour ts of th e time–often ru led in fa vor of slaves whose manumission had

been legally challen ged. See Cobin & Fink elma n, supra note 136, at xxviii-xxix.

138. See Car rin gton, supra note 19, at 333 n.1.

Story went on to define other state/federal militia

boundaries; he noted that when the militias were not in federal

service, Congress had no power to discipline and train them,

such power being “exclusively vested in the stat es.”

134

For this

proposition, Story cited Federalist 29 and the Tucker and

Rawle treatises (again, not parts dealin g with the Second

Amendment).

135

The treatise continued for eight more sections

to discuss various state/federal militia issues, such as the power

to call th e militia into service, to govern the m ilitia, to court-

martial, and to command the militia. Never once did St ory hint

that the Second Amendment had any relevance to these issues.

If, as Henigan claims, Story read the Second Amendment

the way Henigan does, it is inexplicable how Story’s treatise

could minutely dissect the boundaries of state/federal militia

powers wit hout once m en tioning the Second Amendment. The

only plausible interpretation of Story’s trea tment of the militia

in his Com m entaries is that proposed by t he Standa rd Model of

the Second Amendment, in which the Second Amendment does

not reduce the scope of the Congressional militia powers in

Article I, or the Presidential militia powers in Article II.

E. Other Pre-1850 S ources

1. Henry S t. George Tucker

Henry St. George Tucker was the son of St. George Tucker,

author of Tucker’s Blackstone.

136

The younger Tucker served as

U.S. Representative from Virginia (1815-19), as President of

the Virgin ia Su pr em e Court,

137

and as law professor at the

University of Virginia (1841-45).

138

He declined President

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1400 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

139. See Dobie, supra note 136.

140. TUCKER, supra note 136.

141. Warren M. Billings , Seventeenth-Century Virginia Law and Its Historians,

With an Accom pany ing Gu ide to S our ces, 87 L. LIBR. J. 556, 55 8 (1995).

142. Cobin & Finkelm an, supra note 136, a t v.

143. A small book or m anua l carr ied as a r eference book. See 2 THE NEW

SHORTER OXFORD ENGLISH DICTIONARY 3538 (3d ed. 1993).

144. 1 TUCKER, supra note 41, at 807.

145. Cobin & Finkelm an, supra note 136.

146. 1 TUCKER, supra not e 136, at 42-43. In oth er wr iti ngs, the youn ger Tucker

extolled the na tura l right t o reform or abolish t he gover nm ent , and the natural right

to self-defens e. See HENRY ST. GEORGE TUCKER, A FEW LECTURES ON NATURAL LAW

10-11, 95-99 (1844); HENRY ST. GEORGE TUCKER, LECTURES ON GOVERNMENT 37 (1 844 ).

Jackson’s offer to serve as United States Attorney Genera l.

139

1831, he wrote a three volume treatise Comm entaries on the

Law of Virginia.

140

Although he followed Blackstone’s

organization, the tr eat ise was entirely Tucker’s own, and it

represented an important step forward in the development of

distinctly Amer ican law. This treatise “was standa rd fa re for

aspiring lawyers”

141

and was “the primary referen ce source for

the bar of Virginia” until the Virginia Code was adopted in

1850.

142

Tucker had created the “vade mecum

143

of the bar of

Virginia. . . . It was recognized by the bar of Virginia, and in

many of the Souther n St ates, as t he m ost valuable text -book for

students and lawyers then in existence.”

144

Tucker’s work

“established the standard for American treatise writing, helped

organize American law, and provided access to it for attorneys

distant from law librar ies.”

145

Explaining “the principal absolute rights of individuals,”

Tucker wrote:

[C]ertain protections or barriers have been er ected wh ich serve

to mainta in inviola te th e three prim ar y rights of per son al

security, personal liberty, an d priva te proper ty. These m ay in

America may be said to be:

1. Th e Bill of Rights an d w rit ten Con stitu tion s . . . .

2. Th e righ t of bea rin g arm s—w hich wit h us is not limited

and restrained by an ar bitr ar y system of gam e laws, as in

England; but is practically en joyed by every citizen, a nd is

among his most valuable privileges, since it furnishes the

means of resisting, as a freeman ought, the inroads of

usurpation.

3. The right of ap plying to th e court s of just ice for re dr ess

of injuries.

146

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1401

147. 1 TUCKER, supra note 136, at 43.

148. Id.

149. Id.

150. Philip A. Hamburger, Natural Rights, Natural Law, and American

Constitutions, 102 YALE L.J. 907, 953 n .124 (1993); see also BENJ AMIN L. OLIVER, THE

LAW SUMMARY: A COLLECTION OF LEGAL TRACTS ON SUBJECTS OF GEN ERAL

APPLICATION IN BUSINESS (2d e d., Fr ed B. Roth ma n & Co. 1995 ) (183 1).

151. BENJ AMIN L. OLIVER, THE RIGHTS OF AN AMERICAN CITIZEN; WITH A

COMMENTARY ON STATE RIGHTS, AND ON THE CONSTITUTION AND POLICY OF THE UNITED

STATES 174 (1832). The book was cited by the dissent in Harmelin v. Michigan, 501

U.S. 957, 1009-10 (1991) (White, J., dissenting) for the proposit ion that the Eighth

Amendment forbids punish ment s disproportionate to the underlying offense.

152. See Bliss v. Commonw ea lt h, 12 K y. (2 Lit t. ) 90 (1822 ).

If, therefore, the act in question imposes any restraint on the right,

immaterial what appellation may be given to t he act , wh ethe r it be a n a ct

Tucker cont inued, quoting Blackstone’s form ulation of the

English right to arms. Tucker added that this right “is secured

with us by Am. C. U. S. art. 4.”

147

(Lik e some other writers of

the period, Tucker numbered the amendments as they were

when sent to the states for ratification by the first Congress.)

When human right s wer e violated, Tucker concluded, the

citizen was entitled first to justice in the courts, “next to the

right of petitioning for redress of grievances; and, last ly, to the

right of having and using arms for self-preservation and

defence.”

148

While all of the r igh ts Tucker descr ibed were “our

birthright to enjoy entire,” they could be subject to “necessary

restraints” which were “gentle and moderate.”

149

2. Benjamin Oliver

Benjamin L. Oliver was “a writer of law books, a noted

chess player, and son of a former Governor of

Massachusetts.”

150

His 1832 The Rights of an American Citizen

contained a cha pter entitled “Of the righ ts r eserved to the

people of the United St ates; not being gr anted eit her to the

general government, or the state governments.” This chapter

explained the Second Amendment “right of the citizens to bear

arms” as making it possible for a militia to comba t invasion,

insurrection, or usurpation.

151

An 1822 Kentu cky decision, Bliss v. Commonwealth,

interpreted the state’s constitution to find a law against

carrying concealed weapon s (t he fir st Amer ican weapon s

control law of general applicability) to be unconstitutional.

152

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1402 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

regulating the ma nner of bear ing arms or any oth er, the consequen ce, in

re fer en ce to the constitution, is precisely the same, and its collision with

that instrument equally obvious.

Id. at 92. “For, in principle, the re is n o difference between a law prohibiting the

wearing concealed arms [sic], and a law forbidding the wearing such as are exposed;

and if the former be unconstitutional, the latter mu st be so likewise.” Id. “[I]f an y

portion of that right be impaired, immaterial how small the part may be, and

immaterial the order of time at which it be done, it is equa lly forbidden by the

constitution.” Id. at 93.

153. OLIVER, supra note 151, at 176-78.

154. Id. at 178. Anoth er pa ssage described self-defense as a natural right :

There are some other rights, which are reserved to th e people, though

not mentioned in the genera l con st itut ion. Am ong the se is t he ri ght of s elf-

defence, in cases where the dan ger is so imminent, that the person in

jeopardy, may suffer irre pa ra ble injury , if h e waits for th e prote ction of th e

laws. . . . as the compact between him and society is mutual, if society is

unable to p rote ct h im, his n at ur al righ t r evives to p rote ct h im se lf.

Id. at 186. Also, “Of those rights wh ich are u su ally ret ain ed in or gan ized societ y, . . .

[t]h e first an d m os t im po r t a n t of t hes e r ig h t s, i s t ha t of s el f-d ef en ce .” Id. at 40.

155. JAMES BAYARD, A BRIEF EXPOSITION OF THE CONSTITUTION OF THE UNITED

STATES 4 (Fr ed B. R oth ma n & Co. 1 992) (2d e d. 1845 ).

156. Id. at 3.

157. Id. at 147.

Oliver thought that carrying concealed weapons, “if it is really

unconstitutional to restrain it by law, ought to be

discountenanced,” since concealment allowed an antagonist to

surprise a victim.

153

Still, “[t]here are without doubt

circumstances, which may justify a man for going armed; as, if

he has valuable property in his custody; or, if he is traveling in

a dangerous part of the country; or, if his life has been

threatened.”

154

3. James Bayard

James Bayard’s A Brief Exposition of the Constitution of the

United States was inten ded a s “a text -book for the in st ruction of

youth.”

155

The book was adopted by some colleges and

seminaries and was praised by Chief Justice John Marshall,

Justice Joseph Story, Chancellor James Kent, “and other

distinguished jurists,” accor ding to the author.

156

The small

book took the reader through the Constitution clause by clause,

offering short explanations of the meaning and background of

each provision.

Bayard wrote that the Second Amendment “secures the

right of the people to provide for their own defence.”

157

This

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1403

158. See U.S. CONST. amend. III: “No Soldier shall, in time of peace be quartered

in an y house, with out th e consen t of t he Own er , nor in time of war, but in a manner

to be pr escribed by law.”

159. BAYARD, supra note 155, at 148.

160. See LOIS G. SCHWOERER, “N O STANDING ARMIES!” THE ANTIMILITARY

IDEOLOGY IN SEVENTEEN TH-C EN TU RY ENGLAND (1974); William S. Fields & David T.

Hardy, The Third Amendm ent and the Issue of the Maint enance of Standing Arm ies:

A Legal History, 35 AM. J. LEGAL HIST. 393 , 402-13 (1991); MALCOLM, supra note 1,

at 6-15.

short statement is not, in isolation, necessarily inconsistent

with the Standa rd Model or wit h the anti-individual theories.

One could read the language, Standard Model-style, as “the

Amendment guarantees the pre-existing right of people to

protect them selves with arms.” Or one could, with a little more

effort, read Bayard’s language Henigan style: “the Amendment

protects state governments from federal interference, so that

the people may be defended by state militias.”

Any confusion arising from Bayard’s ter seness on the

Second Amendment is clarified by his discussion of the Third

Amendment, which prohibits quartering troops in private

homes under most circumstances.

158

Bayard detailed its

historical background: “The people of this country, while under

the dominion of England, had felt too sensibly the evils arising

from the want of arm s . . . not to take every precaution against

their recurrence.”

159

Formally, Bayard’s reference to “the evils arising from the

want of arms” makes no sense in a Third Amendment

discussion. The Third Amendment keeps soldiers out of homes,

but does n othing to pr event “the want of ar ms.” Historically,

however, the Second a nd Third Amendments were closely

linked, and they a re placed next to each other because both

were intended as checks against the dangers of militaristic

tyranny on the part of the central government. The

disarmament of individual citizens, the replacement of th e

militia by a standing arm y, and the abuses of a standing army

(including the forced quartering of soldiers in private homes)

were closely linked to the abuses of King Ch arles I, which

precipitated the English Civil War,

160

whose history the

Americans knew well—especially since similar abuses helped

precipitate the American Revolution. As the Founders also

knew from reading Mon tesquieu and ot her s, the quartering of

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1404 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

161. See Kat es, Self-Protecti on, supra note 1, at 100 (“As Englishmen a nd

Ame ri can s were well aware from their reading of Bodin, Beccaria and Montesquieu,

the Huguenots had been rendered incapable of resisting either individually or as a

group by t he Con tine nt al policy of di sa rm ing all but th e Ca th olic n obilit y.”).

[T]h e most at rocious–and effective–were the dr agon na des , or billet ing of

dragoons on Hu guen ot families with encouragem ent to behave a s viciously

as they wished. Notoriously rough a nd u ndisciplined, the en list ed t roop s of

the dragoons spread carnage, bea ting and robbing the householders, r apin g

the women , sma shin g and wrecking an d leaving filth . . . .

BARBARA W. TUCH MAN , THE MARCH OF FOLL Y 21 (198 4).

162. See Steven Alan Sa mson, Francis Lieber on the Sources of Civil Liberty, 9

HUMANIT AS 1-2 (1996) (visited Mar. 16, 1998) <http://www.nh umanities.org/

samson.ht m>.

163. See id.; FRANCIS LIEBER, ON CIVIL LIBERTY AND SELF-GOVERNMENT 5

(Theodor e D. Woolsey ed., Da Ca po Pr ess 1972) (3d ed. 1877).

soldiers was one of the major abuses perpetrated against the

disarmed French Huguenots by Louis XIV in the 1690s.

161

Thus, it was not unreasonable for Bayard to address the

problems of centralized militarism in one u nified discussion.

Knowing “the evils arising from the want of arms,” the

Americans took “every precaution against their recurrence,”

and it is therefore impossible to read Bayard as supporting

Henigan’s theory tha t the federal government may

constitutionally disarm the American people.

4. Fran cis Lieber

One of the most important of America’s early political

scientists was Francis Lieber, a German immigrant. He taught

history, political science, and public law at South Carolina

College, Columbia College, and Columbia Law School. H is code

of military conduct for land warfare, written for the Union

Army during the Civil War, later became part of the Geneva

and Hague Conventions.

162

Lieber’s main contribution, however,

was his analysis of how a society could create complex

institutional structures to promote civil liberty; the fullest

exposition of his political thought is found in his book On Civil

Liberty and Self-Govern m ent, first published in 1853.

163

In the penultimate paragraph of a chapter discussing

control of standing armies and the Third Amendment, Lieber

wrote:

Akin to the last-m en tioned gu ara nte e, is th at w hich

secures to every citizen the right of possessing and bearing

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1405

164. LIEBER, supra note 163, at 120 (quoting U.S. CONST. amend. II). Lieber’s

Secon d Amendment quotation wa s, of cour se, slight ly in er ror . Th e wor d “upon” is n ot

part of the Am endmen t. See also Fr ancis Lieber , Anglican and Gallican Liberty, in

2 THE MISCELLANEOUS WRITINGS OF FRANCIS LIEBER 373-75 (David C. Gilman ed.,

1880); Samson, supra note 162 (discussing the fact that Lieber listed the righ t to

arms and the right t o resist un la wfu l a ut hority as am ong the es sent ial r igh ts of a

society in wh ich civil liber ty is s ecu re ).

A sout her n reviewer of another Lieber book, Ma nu al of Politica l E th ics (1839),

used the review to defend slavery under t he Constitution; the reviewer included the

right to arms in a litany of individual rights that the Constitution guar anteed to free

men:

To the people, the habeas corpus act, th e trial b y jury, th e exemption fr om

excessive bail, and the quartering of soldiers, and the right t o keep and

bear arms, was secured; but these privileges only applied to free pe ople, and

not to per sons held to ser vice or labor in one State, wh o might escape into

another . . . .

Lieber’s Politica l E th ics, 24 S. Q. REV. 464, 481 (Oct. 1847).

165. For the sak e of complet enes s, two oth er t rea tises written before th e Civil

arm s. Our constitution says: “The right of the people to keep

and bear arms shall not be infringed upon;” and the [English]

Bill of Rights secured th is right to every protestant. It extends

now to every English subject. It will hardly be necessary to

add, that laws prohibiting se cre t w ea pon s, or th ose wh ich

necessarily endanger th e lives of the citizens, are no

infringement of libert y; on t he contra ry, liberty r est ing

necessa rily on law, and lawful, that is, peaceful state of t he

citizens, libert y itself requ ire s t he su ppression of a re turn to

force an d violence among the citizens—a fact by no means

su fficien tly weigh ed in recen t t im es in Am er ica.

164

Lieber recognized the individual right of “every citizen” to

bear arms; he did not even quote the m ilit ia clause of th e

Second Amendment. Unlike Tucker, Rawle, and Story, who

distinguished the br oad American righ t to ar ms from its feeble

English ancestor, Lieber saw the English right as robust and

identical to the American right. (Lieber’s general theme was to

contrast the strong rights in Anglo-American law with the weak

or non-existent rights in France and the rest of Europe.) The

endorsement of concealed weapon s control laws, followed by the

complaint about American attitudes, might reflect the fact that

outside the Southeast and the state of Indiana, there were no

concealed weapons laws or any other sort of gun control at all.

And, as Lieber ruefu lly recogn ized, Amer icans were often too

quick to resort to private revenge, rather than to the judicial

system.

165

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1406 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

War should be ment ioned. Maurice Richter ’s 1859 The Municipalist examined the

relationship between local and feder al power . H e a rgue d t ha t m an y pr ovision s of t he

Bill of Rights would make sense in Eu rope as restraint s on central power, but that

these provisions were of no use in the United Sta tes, since the national governmen t

had no affirmative power to violate those rights. Thus, for the Second Amendment,

Richter wrote, “Good for Europe. We have read t he dispositions of the const itution [in

Article I] about the militia. Congress has no power to legislate on the keeping and

bearing of a r m s, e xcep t in th e D is tr ict of C ol u m bi a.” M AURICE A. RICHTER, INTE RNAL

RELATIONS OF THE CITIES, TOWNS, VILLAGES, COUNTIES, AND STATES OF THE UNION; OR

THE MUNICIPALIST : A HIGHLY USEFUL BOOK FOR VOTERS, TAX-P AYERS, STATESMEN,

POLITICIANS AND FAMILIES 133 (N.Y., Ross & Tousey, 2d ed. 1859), availabl e online

<htt p://moa.umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=AEW4742)>.

William Duer’s lectures on the Constitution at Columbia College in the 1830s

were published as WILLI AM ALEXANDER DUER, A COURSE OF LECTURES ON THE

CONS TITU TION AL JURISPRUDENCE OF THE UNITED STATES (Burt F ranklin Pr ess 1971)

(1856). Duer’s lengthy analysis of federal militia powers and sta ndin g armies said

nothing about the Second Amendmen t. S ee id. at 196-210. H is discu ssion of

constitutional amendments amounted to summary qu ota tion s of Amendm ents four

through eight , with no ment ion of Amendments one t hrough th ree, nine, or ten. Id.

at 39-40. His discussion of natur al rights par aph rased Blackstone’s th ree primary

rights (personal security, personal liberty, an d priva te pr opert y) and five auxiliary

rights (legislative authorit y; limits on the king’s prerogat ive; the right to apply to

cour t for redress of injury, and the associated rights of trial by jury and habeas

corpus; the righ t to petit ion; an d “of keep ing arm s for defen ce; which was, in deed, a

public allowan ce, under certain restr ictions, of the natural right of resistance and self-

pre serv at ion”). Id. at 36-37. Duer’s list of Blackstone’s auxiliary rights contained a

footn ote to the Seventh Amendment for “ Trial by J ur y.” There wa s no cita tion to

Article I for ha bea s cor pus, t o th e F irst Amend ment for t he right to petition, nor to

the Second Am endmen t for the r ight to ar ms. See id.

A footnote concerning the auxiliary right to arms discussed a Kentucky case

holding a law against wear ing concealed arms void under th e Kent uck y Const itu tion

and likewise voiding a law against free blacks defending themselves against white

aggressors. See id. at 37 n .1; see also infra text accompanying notes 394-95.

Regarding the self-defen se issue, a contr ary case was a lso cited. See id.

166. 1 JONAT HAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON

THE ADOPTION OF THE FEDERAL CONSTITUTION, at xv (2d ed., 2d pr tg . 19 37).

5. Elliot’s Debates

Jonathan Elliot’s 1836 compilation, The Debates in the

Several State Conventions on the Adoption of the Federal

Constitution, is still the major documentary source for its

subject. Elliot’s “Digest of the Constitution” indexed the various

Constitutional provisions. Under the index heading “Rights of

the citizen declared to be—,” th ere is a listing for “To keep and

bear arms,” and other rights from the first nine amendments.

In contrast, the Tenth Amendment, unquestionably a “states’

right,” was not included in the heading “Rights of the

Citizen.”

166

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1407

167. Kemp Mallone, Noah Webster, in DICT. AM. BIO., supra note 90.

168. See MARSHALL SMELSER, THE DEMOCRATIC REPUBLIC: 1801-1815, at 32 n.27

(1968).

169. NOAH WEBSTER, A N AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (182 8).

170. 2 Id. at 54. Similarly, George Cabot—a Federa list and one of the richest

men in New England—wrote that society should function like a “well regulated

family” with “each one learning his proper place and keeping to it.” Robert E.

Shalhope, Individualism in the Early R epublic, in AMERICAN CHAMELEON:

INDIVIDULAISM IN TRANS-NATIONAL CONTE XT 66, 67 (Richard O. Cur ry & Lawrence B.

Goodheart eds., 1991) (citing DAVID H. FISCHER, THE REVOLUTION OF AME RICAN

CONSERVATIVISM (1965)). Thus, in “a well regulated milit ia,” the milit ia-men would

be able t o ma rch an d de ploy for combat in p roper form ations, with each militia-man

knowing his place.

171. See Ran dy E. Ba rn ett , N ecessa ry a nd Prop er, 44 UCLA L. REV. 745, 775

(1997 ). Or as Congressman Daniel Webster explained, regar ding federal power to

“regulate” intern ational commerce, “To regulate . . . could never m ean to destroy.”

ROBERT V. REMINI, DANIEL WEBSTER: THE MAN AND HIS TIME 94 (199 7).

6. Webster’s Dictionary

The legitimacy of the American version of the English

language found its truest champion in Noah Webster. Webster’s

father served as a captain on the “alarm list” of the militia near

his Hartford farm,

167

and the family strongly supported the

Revolution. Noah Webster’s first major work was the American

Spelling Book (1783), of which millions of copies were

eventually printed. He published his first dictionary in 1806,

the Compendious Dictionary of the English Language.

168

But his

revered classic came in 1828, the two-volume American

Dictionary of the English Language.

169

By examining the Second

Amendment word-by-word, as defined by Webster, we see the

meaning of the Amendment’s words in the nineteenth century.

“Regulated” meant “[a]djusted by rule, met hod or form s; put

in good order; subjected to rules or restrictions.”

170

As Randy

Barnett has observed in rela tion to the Congressional power to

“regulate” interstate commerce, to regulate something means to

make it more regular—not to prohibit it.

171

“Militia” was

The body of soldiers in a state en rolled for d iscipline, bu t n ot

engaged in actual service excep t in em er ge ncies; a s

distinguished from regular troops, whose sole occupat ion is

war or milita ry ser vice. Th e m ilitia of a coun try are th e able

bodied men organized into companies, regiments and brigades,

with officers of all grades, and required by law to attend

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1408 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

172. 2 WEBSTER, supra note 169, at 15.

173. 2 id. at 21.

174. 2 id. at 66.

175. 1 id. at 87.

176. 2 id. at 80.

177. 2 id. at 59.

178. 2 id. at 32.

179. 2 id. at 2.

180. 1 id. at 19.

military exer cise s on cer ta in da ys only, but a t oth er tim es left

to pursue their usual occupations.

172

“Necessary” meant “indispensibly requisite . . . .”

173

“Security” was “[p]rotection; effectual defense or sa fety from

danger of any kind.”

174

“Free” meant “[i]n governm ent, not enslaved; not in a state

of vassalage or dependence; subject only to fixed laws, made by

consent, and to a regular administration of such laws; not

subject to the arbitrary will of a sovereign or lord; as a free

stat e, na tion, or people.”

175

“State” meant

A polit ical bod y, or bod y politic; th e w hole b ody of people

united under one government, whatever may be the form of

government. . . . More usually the word sign ifies a politica l

body govern ed by r epre senta tives . . . . In th is sen se, state has

sometimes more immediate reference to government,

sometimes t o the people or commun ity.

176

Thus, “state” is not just the “government.” The Second

Amendment aims to protect the security of a free Amer ican

people, not just to protect their government.

“Right” was a “[j]ust claim; immunity; privilege. All men

have a right to secure enjoyment of life, liberty, personal safety,

liberty, and property. . . . Rights are natural, civil, political,

religious, personal, and public.”

177

“People” meant “[t]he body of persons who compose a

community, town, city or nation. We say, the people of a town;

the people of London or Paris; the English people.”

178

“Keep” was “[t]o hold; to retain in one’s power or

possession.”

179

“Bear” meant firstly, “[t]o support; to sustain; as, to bear a

weight or burden”

180

—a meaning that does not fit with the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1409

181. Id.

182. S ee, e.g., Aym et te v. Sta te , 21 Tenn . (2 H um .) 15 4, 161 (1840 ).

183. The Address and Reasons of Dissent of the Min orit y of th e Con ven tion of

the Stat e of Pennsylvania to their Constituent s (Dec. 18, 1787), reprinted in ORIGIN,

supra note 37, at 154, 160.

184. See discussion infra note 190.

context of the Second Amendment. The second and third

meanings of “bear” are much more congruent, however: “To

carry; to convey; to support and remove from place to place” and

“[t]o wear; to bear as a mark of authority or distinction; as, to

bear a sword, a ba dge, a name; t o bear arms in a coat.”

181

It is sometimes argued that “bear” has an exclusively

military connotation, so that the right to “bear” arms refers

only to bearing them in militia service.

182

But none of Webster’s

definitions for bear contain such a narrow construction. And

rather significantly, we know t hat “bear” was u sed with a broad

meaning in one of the key documen ts t hat gave birth to the

Second Amendment: the minority report from the Pennsylvania

ra tifying convention. The minority demanded constitutional

protection for the right of the people “to bear arms for the

defense of themselves and their own state, or the United States,

or for the purpose of killing game.”

183

Hunting—“killing

game”—is obviously a personal, non-militia purpose for which

one could “bear arms.”

Further, the state constitutions of Missouri (1820), Indiana

(1816), Ohio (1802), Kentucky (1792), and Pennsylvania (1776)

all recognized a right of citizens to “bear arms” in the “defense

of themselves and the state.”

184

While arms-bea ring for defense

of “the state” would be in a militia context, citizens bearing

arms merely for “defense of themselves” would merely be

defending themselves against criminal attack. Hence, the

phrase “bear arms” did not connote that arms-bearing could

only occur while in active militia service.

In a 1998 ca se, the Supr em e Court wa s ca lled u pon to

construe the meaning of the phrase “carries a firearm” in a

mandatory sentencing statute. While the majority opinion did

not refer to the Second Amendment, Justice Ginsburg, writing

for four dissen ters, used t he Second Amendment to help explain

the phrase:

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1410 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

185. Muscarello v. United Sta tes, 118 S. Ct . 1911, 1921 (1998) (Ginsbu rg, J .,

dissen ting) (omiss ions in origin al).

186. 1 WEBSTER, supra note 169, at 13.

187. 1 id. at 110.

Surely a most familiar mea ning is, a s the Constitu tion ’s

Second Amendment (“keep and bear Arms”) (emphasis added)

and Black’s Law D iction ar y, at 214, in dica te: “wear , bea r, or

carry . . . upon the person or in the clothing or in a pocket, for

the purpose . . . of being armed a nd r ea dy for offen sive or

defen sive act ion in a ca se of conflict wit h an oth er pers on.”

185

Justice Gin sburg’s r eading of the Second Amendment is thus

consistent with the reading suggested by Webster’s Dictionary.

“Arms” meant “[w]eapons of offense, or armor for defense

and protection of the body . . . . A stand of arms consists of a

musket, bayonet, cartr idge-box and belt , with a sword. But for

common soldiers a sword is not necessary.”

186

Webster’s

definition offers two useful insights. First, the distinction

sometimes dr awn between “offensive” and “defensive” weapon s

is of little value. All weapons are made for offense, although

they may be used for defensive pu rposes (i.e., shooting someon e

who is a ttempt ing to perpetrate a murder).

Second, Webster’s dictionary suggests that the “arms”

protected by the Second Amendment may include more than

just weapons. The Amendm ent may en compa ss “armor for

defense and pr otection of the body.” The defensive a sp ect of

arms would be relevant to legislative pr oposals to pr ohibit non-

government possession of bullet-resistant vests.

Finally, “infringed” meant “[b]roken, violated,

transgressed.”

187

How would the Second Amendment read if rephrased

according to Webster’s dictiona ry?

The good order of able-bodied men required to attend military

exercises on certa in da ys b ein g in dispensibly requ isite to th e

pr otection of a not-en slaved body politic, the just claim of th e

body of per son s who compose the United States to retain and

wear weapons and armor shall not be violated.

While hardly as elegant as the Second Amendment, Webster’s

dictionary does point us in the same direction as do the legal

commentators wh o ar gue that the milit ia (an essential

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1411

188. Noah Webst er, An Exam ination into the Leading Principles of the Federal

Constitution , in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES 55, 56 (P aul

Leicester Ford ed., Br ooklyn 1888).

Often confused with Noah Webster, but having no relation, was Massach usetts

Senator Daniel Webster, perh aps the greatest orator of the ninet eenth century.

Amon g the most fam ous of all Webster’s public speeches was “The Plymouth

Ora tion,” which he delivered at Plymouth Rock on December 22, 1820—the

bicentennial of the P ilgrim lan ding. Webster, who was an avid hunter all his life,

traced the connection between the social conditions created by the Pilgrims and the

current condition of American freedom; he emphasized that the social condit ions, and

not just the forma l Constitution, wer e es sen tia l ingredients of free dom : “The practical

character of governm ent d epend s often on a variety of considerations, besides the

abstract fram e of its constitutiona l organ ization. Among th ese are the condition and

tenure of proper ty . . . an a rm ed or un ar me d yeoma nr y.” Further, “[e]ducation,

wealth, talent s, are all parts and elements of the general aggregate of power; but

numbers, never theless, const itute ordinarily th e most importa nt considera tion , unless,

indeed, there be a m ilitary force in t he h ands of th e few, by which t he y can cont rol

the ma ny.” Dan iel Webster, Th e Plym out h Orat ion, Dec. 22, 1820, available in part

at <http://www.dartmouth.edu/~dwebster/speeches/

plymouth~ora tion.ht ml>.

institution of a free society) will only be effective as long as the

people are gu aranteed t he ownersh ip of arms. In fact, Noah

Webster himself, during the ratification debates, provided a

concise summary of why the entire population should be armed:

Before a standing arm y can rule, the people must be disarmed;

as they ar e in almost every kingdom in Europe. The suprem e

power in Am er ica ca nnot enforce unjust laws by the sword;

because the whole body of the people a re ar med, an d

constitute a force superior to any band of regular troops that

can be, on any pretence, raised in the United States.

188

In sum, all of the pre-1850 sources analyzed

above—including the leading treatises, the lesser treatises,

other books, and the Supreme Court’s Houston case—support

the St anda rd Model approach to the Secon d Am endment: the

Amendment grants an individual right to bear arms.

III. STATE CONSTITUTIONS AND CASE LAW

The nineteenth century was a fertile period for th e right to

bear arms in state courts and in state constitutions. Many of

these st ate sources pr ovide a good deal of useful information

about how the Second Amendment was understood. This Part

discusses state constitutional texts first and then discusses

state case law. The purpose is not to comprehensively survey

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1412 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

189. Cla yton Cramer ’s book provides a super b sur vey of state firearms

constitutional case la w in t he n inet eenth cent ury. See CRAMER, supra note 1. The

works of other scholars offer useful stu dies of particular states in the n ineteenth

centur y. See STEPHEN HALBROOK, A RIGHT TO BEAR ARMS: STATE AND FEDERAL BILLS

OF RIGHTS AND CONSTITUTIONAL GUARANTEES (1989); Robert Dowlut, Federal and

State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (1989); Robert

Dowlut, The Right to Arms, supra note 1; Robert Dowlut & Janet A. Knoop, State

Constitutions and th e Right to Keep and Bear Arms, 7 OKLA. CITY U. L. REV. 177

(1982); Stephen P. Halbrook, Rationin g Firearm s Pu rch ases an d t he R igh t to Keep

Arms: Reflect ions on th e Bills of R igh ts of Virginia, West V irginia, an d t he U ni ted

States, 96 W. VA. L. REV . 1 (1993); St eph en P. H alb rook , The Right to Bear Arm s in

Texas: The Intent of the Framers of the Bills of Rights, 41 BAYLOR L. REV. 629 (1989);

Glenn Harlan Reynolds, The Right to Keep and B ear Arms under the Tenn essee

Constitution: A Case S tud y in Civ ic Republican Though t, 61 TENN. L. REV. 647 (1994).

190. Many thanks t o Eugene Volokh, who compiled th ese provisions , an d wh o ha s

made them a vailable at

<htt p://www.l aw.ucla.edu/faculty/volokh/beararm s/stat econ.htm >, to which all following

cites are made.

Alabama: “That every citizen has a right to bear arms in d efens e of himself and the

sta te.” Art. I, § 26 (enacted 1819, art. I, § 23, with “defence” in place of “defense,”

spelling cha ng ed 190 1).

Arkansas: “The citizens of this State shall have the right to keep and bear arm s for

their common defense.” Art. II, § 5 (1868). This replaced the 1836 p rovision : “That

the free white m en of this Sta te sh all ha ve a right to keep and to bea r arms for th eir

comm on defense.” Art. II, § 21.

California: No provision.

Colorado: “The right of no person to keep and bear arms in defense of his home,

per son an d prop er ty, or in aid of the civil power when thereto legally summoned,

sha ll be called in qu estion; bu t n oth ing h er ein conta ined sh all be const ru ed to jus tify

the pr act ice of ca rr yin g con cea led weap ons.” Ar t. II , § 13 (1876).

Connect icu t: Although C onne cticut ha d been one of th e origina l thirteen states, it

added a right to ar ms provision to its constitution in 1818: “Every citizen has a r ight

to bear arms in defense of himself and the state.” Art. I, § 15 (enacted 1818, art. I,

§ 17). The original 1818 text came from the Mississippi Constitu tion of 1817.

Florida: Upon a dmission to the Union in 1838, the Florida const itution provided:

“That free white men of this Sta te shall have a right to keep and to bear arms, for

the nineteenth century arms rights cases,

189

but rather to

survey state mater ials solely as t hey m ay shed light on the

federal Second Amendment.

A. State Constitutions

The texts of nineteenth century state constitutions are

worth reviewing for several reasons. First, the large number of

state provisions suggests that the right to arms was considered

an important human right. Of the thirty-six states that were

admitted or readmit ted to the Union in the nineteenth century,

twenty-eight provided a right to arms provision in their state

constitution.

190

Several states adopted right to arms

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1413

their common defence.” Art. I, § 21. The 1865 Constitution, a white supremacist

document, made no mention of a right to arms. The 1868 Constit ution, a

Recons tr uct ion document , provided, “The people shall have the right to bear arms in

defe nce of themselves and of the lawful authority of the State.” Art. I, § 22. This was

modified in 1 885 t o allow rest riction s on th e carr ying of ar ms : “The right of the

people to bear ar ms in defence of themselves, and the lawful authority of the State,

sha ll not be infringed, but the Legislature may prescribe the m anner in which they

may be born e.” Art. I, § 20.

Georgia: The state’s original constitution ha d no right to ar ms, wh ich impelled an

1845 Geor gia Supr eme Cou rt decis ion striking down gun con tr ol to r ely on th e Se cond

Amendment and natural law. The 1865 and 1868 Georgia Constitutions did include

an arms right. 1865: “A well-regulat ed militia, being necessa ry to the secur ity of a

free State, the right of the people to keep and bear ar ms sha ll not be infringed.” Art.

I, § 4. 1868: “A well-regula ted m ilitia bein g necessary to the secur ity of a free people,

the right of the people to keep and bear arms shall not be infringed; but the general

assembly sha ll have power to prescribe by law the man ner in which arms may be

borne.” Art. I, § 14. The provision took its fina l form in t he 1877 Const itu tion : “The

right of the people to keep and bear arms shall not be in fringed, but the General

Assembly shall have power to prescribe the manner in which arms may be born e.”

Art. I, § I, ¶ VIII.

Idaho: The 1889 statehood Const itu tion st at ed: “ The people have the right to bear

arms for th eir security an d defense; but the Legislature sha ll regulate the exercise

of this righ t by la w.” Art. I, § 11.

Illinois: The state had n o right to ar ms u ntil the adopt ion of a new constitution in

1970.

Indiana: The right to arms in th e 18 16 s ta te hood con st itut ion (“That the people have

a right to bear arms for the defense of themselves and the State, and that the

military shall be kept in st rict subordina tion to the civil power.” Art. I, § 20) was

revised in 1 851 t o stat e: “Th e people sh all ha ve a right to bear a rm s, for th e defense

of themselves and t he State.” Art. I, § 32.

Iowa: No provision.

Kansas: “The people have the right to bear arm s for their defense and security; but

standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated,

and th e m ilit ar y sh all be in st rict subordination to the civil power.” Bill of Rights,

art. I, § 4 (185 9).

Kentucky: Th e Kent uck y Con stitu tion of 1792 provided: “The right of the citizens to

bear arms in defense of themselves and the Stat e shall not be questioned.” Art. XII,

§ 23. It was changed slightly in 1799 : “That the rights of the citizens to bear arm s

in defense of themselves and the State shall not be questioned.” Art. X, § 23. An 1850

revision addressed a court case from several decades before and specifically authorized

restrictions on con cealed ar ms : “That the rights of the citizens to bear a rm s in

defense of themselves and the State shall not be questioned; but the General

Assembly ma y pa ss laws to p re ven t p er son s fr om car ry ing con cea led ar ms .” Art. XIII,

§ 25. The provision took its modern form in 1891:

All men are, by natur e, free and equal, and have certain inherent and

inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

. . . .

Seventh: The right to bear arms in defense of themselves and of the State,

su bject to the power of the General Assembly to enact laws to prevent

persons from carrying concealed weapons. Bill of Rights § 1.

Louisiana: The 1879 Const itution stated: “A well regula ted m ilitia being necessary to

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1414 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

the se cur it y of a free State, the right of th e pe ople to keep an d be ar ar ms sh all not

be abridged. This sh all not pr event th e pa ssa ge of laws t o punis h t hos e who carry

weapons concealed.” Art. 3.

Maine: The 1819 Constitution stated “Every citizen has a right to keep and bear arms

for the common defense; and this right shall never be questioned.” Art. I, § 16. In

1987, aft er a s ta te cour t decision w hich int erpret ed t he Maine provision a s

recognizing no individual right , the Constitution was amended to provide: “Every

citizen has a right to keep and bear arms and this right sha ll never be questioned.”

Art. I, § 16.

Michigan: “Every person has a right to bear arm s for the defence of himself and the

sta te.” Art . I, § 6 (18 35).

Minnesota: No provision.

Mississippi: The state’s first Constitution, in 1817, provided: “Ever y citizen has a right

to bear a rms, in defence of himself and the Stat e.” Art. I, § 23. The comma was

removed in 1832. Th e 1868 Reconstruction Constitution changed th e wordin g to: “All

persons shall have a right to keep and bear arms for their defence.” Art. I, § 15. In

1890, the provision was rewritten to copy a formulat ion common in late-19th century

rights to a rm s, m ak in g explicit th e m an y pu rp ose s of t he right to arms, and also the

authority of th e legislat ur e t o cont rol con cealed wea pon s: “The r ight of every citizen

to keep a nd bear arms in defen se of hi s h ome, p er son , or pr opert y, or in aid of t he

civil powe r when t here to legally summoned, shall not be called in question, but the

legislature may r egulate or forbid carrying concealed weapons.” Art. III, § 12.

Missouri: The form used in Mississippi, Colorado, and Mon tana first a ppeared in the

1875 Missou ri Constitu tion : “That the r ight of no citizen to keep and bear arms in

defense of hi s h ome, p er son an d propert y, or in ai d of t he civil power, when thereto

legally summoned, shall not be called into question; but nothing herein cont ained is

intended to justify the practice of wearing concealed weapons.” Art. II, § 17. The

provision re pla ced la ngua ge from 1 820: “That the people have the right peaceably to

assemble for the ir comm on good , an d to apply t o thos e vested with th e power s of

government for redr ess of grievances by petition or remonstr ance; and t hat their right

to bear arms in defen ce of t he ms elv es an d of t he St at e ca nn ot b e qu estioned.” Art .

XIII, § 3. The 1865 Constitut ion had copied the 1820 lan guage, except to subst itute

“the lawful authority of the State” for “the State.” Art. I, § 8.

Montana: “The right of a ny per son to k eep or bear arms in defense of his own home,

person, and property, or in aid of the civil power when thereto legally summoned,

sha ll not be called in question, bu t nothing her ein contained shall be h eld to per mit

the carrying of concealed weapons.” Art. III, § 13.

Nebraska: No arm s right provision until 1988.

Nevada: No provision until 1982.

North Carolina: The 1868 Con st itu tion substantially followed the arms provision in

the 177 6 Con st itut ion (“That the people have a right t o bea r a rm s, for th e de fen ce

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 str ict

subordin at ion to, a nd governed by, the civil power.” Bill of Rights, § XVII) and stated:

“A well regulated militia b ein g necessary to t he secu rity of a free St at e, t he right of

the people to keep and bear a rms sh all not be infringed; and, as standing armies in

time of peace are dangerous to liberty, they shall not be maintained, and the milita ry

sha ll be kept under str ict subordination to, an d governed by, th e civil p ower.” Art .

I, § 24. In 1875, concealed we ap ons cont rol w as added : “Noth ing herein contained

sha ll justify the practice of carr ying concealed weapons, or prevent t he General

Assembly from enacting penal statutes against that practice.”

North Dakota: No right to ar ms until 1984.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1415

Ohio: The original 1802 provision stated “That the people have a right to bear arms

for th e defence of themselves and th e state; and as standing armies in time of peace,

are dangerous to liberty, they shall not be kept up, and t hat the m ilitary sh all be

kept under strict subordination to the civil power.” Art. VIII, § 20. The language was

modernized in 1 851: “The people have the right to bear arms for their defense and

security; but sta ndin g ar mies, in time of pea ce, ar e dangerous to libert y, and shall

not be kept u p; an d th e milit ar y sha ll be in s trict su bordin ation to the civil power.”

Art. I, § 4.

Oregon : “The people shall have the r ight to bear arms for the defence of themselves,

and the State, but the Military shall be kept in strict subordination to the civil

power.” Art . I, § 27 (e na cte d 1857, as a rt . I, § 28).

Rhode Island: The state had no constitution until 1842. The 1842 constitution stated:

“The right of the people to keep and bear arms shall not be infringed.” Art. I, § 22.

South Carolina: The origina l cons tit ut ion h ad no r ight t o ar ms . Th e 1868 Con st itu tion

added one : “The people ha ve a rig ht to k eep an d bear ar ms for t he common defence.

As, in times of peace . . . .” Art. I, § 28. This was revised in 1895 to more closely

parallel the Second Amendment: “A well regulated militia being necessary to the

security of a free S ta te, th e r ight of t he peop le to keep and bear a rms shall not be

infringed. As, in times of peace, armies are dangerous to liberty, they shall not be

maintained without t he consent of the Gen era l Ass em bly. Th e m ilit ar y pow er of th e

State sha ll always be held in subordina tion to the civil aut hority and be governed by

it.” Art. 1, § 20.

South Dakota: “The right of the citizens to bear arms in defense of themselves and

the st at e sha ll n ot b e den ied .” Art . VI, § 24 (1 889).

Tennessee: The 1834 sta te constitution’s right to arm s exactly matched the lan guage

of the origina l 1796 const itu tion : “That the freemen of this State have a right to keep

and to bear a rm s for th eir comm on d efen ce.” Art . XI, § 26. Th e Reconstr uct ion

Constitu tion added legislative power to control the carrying of ar ms : “That the

citizens of th is State have a rig ht to k eep an d to bea r a rm s for th eir comm on

defense; but the Legislature shall have power, by law, to regulate the wearing of

arms wit h a view t o pr eve nt cri me .” Art . I, § 26 (1 870).

Texas: When the Texan nation gained independence in 1836, the Declaration of Rights

provided: “Every citizen shall have the right to bear arms in defence of hi ms elf a nd

the repu blic. The militar y sha ll at a ll times an d in all cases be subordinate to the

civil power.” Declaration of Right s, cl. 14. When Texas joined th e Union in 1845, the

new Constitution stated: “Every citizen shall have the right to keep and bear arms

in law ful d efen ce of hims elf or th e St at e.” Art . I, § 13. Th e Reconstr uction

Constitu tion of 1868 decla re d: “Every person shall have the right to keep and bear

arms in the lawful defence of h imself or the State, under such regulations as the

legislature ma y pres cribe.” Art. I, § 13. The final version appeared in 1876: “Every

citizen shall have the right to keep and bear arms in the lawful defense of him self

or th e St at e; bu t t he Legisla tu re sh all ha ve power, by law, to regulate the wearing

of arms, with a view to prevent crime. Art. I, § 23.

Utah: “The people h ave t he r ight to bea r a rm s for their secur ity a nd defense, but the

legislature ma y regu late th e exer cise of th is r igh t b y la w.” Art. I, § 6 (189 6).

Washington : The state’s 1889 provision was typical of its tim e, except for it s explicit

statement about armed groups, including company goon squa ds: “ The right of the

individual citizen t o bear ar ms in defen se of hims elf, or th e state, shall not be

impaired, but noth ing in t his section sh all be const rued as authorizing individua ls or

corpora tion s to organize, maintain or employ an arm ed body of men.” Art. I, § 24.

West Virginia: No provision un til 1986.

Wisconsin: No provision until 1998.

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1416 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

Wyoming: “The right of citizens to bear ar ms in defen se of th em selves a nd of th e

state sh all not b e den ied .” Art . I, § 24 (1 889 ).

191. See CONSTITUTION FOR THE PROVISIONAL GOVERNMENT OF THE CONFED ERAT E

STATES OF AMERICA, ar t. I , § 7, cl. 10; CONSTITUTION OF THE CONFEDERATE STATES OF

AMERICA, art. I, § 9, cl. 13, reprinted in CHARLES ROBERT LEE, JR., THE CONFE DERATE

CONSTITUTIONS apps. B & C (1963). The Confederate Constitution adopted t he United

States Const itu tion’s Bill of Right s word for word. See id.

192. LA. CONST. art. 3.

193. GA. CONST. art. I, § 1 4 (1868).

provisions repeatedly—first upon admission to the Union, then

upon readmission shortly after the Civil War, and a gain upon

creation of a new Constitution under Reconstruction. The

Confederate States of America also put a right to arms in their

national Constitution.

191

Second, states often thought it necessary to specifically

enumerate the exceptions to the right to arms. Many

constitutions contain a specific except ion allowing restrictions

on concealed carry. Open carry was considered honorable, but

concealed carry was seen useful only to people who wanted to

surprise a victim. Louisiana’s constitution, for example, closely

tracked the Second Amendment, but added an except ion

against concea led ca rry: “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 abridged. This shall not

prevent the passa ge of laws to pu nish those who carry weapon s

concealed.”

192

This concealed carry exception, which was aimed

at individuals, shows that the Louisiana right was an

individual one. The close r eliance on the language of the Second

Amendment further suggests that, at least to those who drafted

and ratified the Louisiana Constitution, the Second

Amendment was seen as protecting an individual right.

Similar ly, Georgia during Reconstruction adopted a Bill of

Rights copied nearly verbatim from the federal Bill of Rights.

The arms provision stated: “A well-regulated militia being

necessary to the security of a free people, the right of the people

to keep and bear arms shall not be infringed; but the general

assembly shall have power to prescribe by law the manner in

which arms may be born e.”

193

The Georgia Su pr em e Court has

had no difficulty in upholding this provision as pr otecting the

right of individual Geor gia ns t o own and ca rry gu ns. At the

same time, the court relied on th e Const itution’s express grant

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1417

194. See Hill v. St at e, 53 Ga . 472, 473-8 3 (1874).

195. S ee, e.g., Eh rman & Hen igan , supra note 2, at 14-32.

196. OHIO CONST. ar t. I , § 4. Th is la ngua ge r evis ed t he 1802 lan guage : “That the

people have a r ight to bear arm s for the defence of th emselves and the state; and as

standing ar mies in t ime of peace, ar e da ngerous to liber ty, th ey sha ll n ot be kept up;

and that the military shall be kept under s trict subordinat ion t o the civil power.”

OHIO CONST. art. VIII, § 2 0 (1802).

197. S ee, e.g., Arnold v. City of Clevela nd, 616 N.E .2d 163, 169-71 (O hio 199 3);

In re Rei lly, 31 O hio Dec. 36 4 (C.P. 191 9).

of authority to regulate the conditions of ca rryin g as r ea son for

upholding a state law prohibiting dea dly weapon s a t election

grounds, courts, churches, and other public gatherings.

194

Third, state constitutional arms provisions that address the

issue of the military and standing armies were not seen as

inconsistent with individual rights. Opponents of the individual

rights view of the Second Amendment normally point out that

the Founders were gra vely concerned about standing armies

(true), that they saw state militias a s a counterpoise to a

federal standing army (also true), and that during the

ratifica tion deba tes over the proposed federal Con st itution,

many anti-federalists worried that the new federal government

would destroy the state militias (also true). The anti-individual

theorists then claim that because the Founders saw militias as

a pr otection against st anding armies , the Second Amendment,

therefore, guaranteed only the right of state governments to

have militias.

195

But st ate const itutions show us t hat an anti-standing army

arms right provision can also be an individual right provision.

For example, the Ohio Constitution of 1851 st at ed, “The people

have the right to bear arms for their defense and security; but

st anding armies , in time of peace, a re danger ous to liberty, and

shall not be kept up; and the military shall be in strict

subordination to the civil power.”

196

Ohio courts have always

treated this provision as guaranteeing an individual right.

197

Likewise, t he 1868 Nor th Carolina Const itution pr ovided:

A well regulated militia being necessa ry to the secu rity of a

free Stat e, th e right of th e pe ople t o keep and bea r a rm s sh all

not be infringed; and, as standing arm ies in time of peace are

dangerous to liberty, they ought not to be kept up, and the

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1418 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

198. N.C. CONST. ar t. I, § 2 4 (1868).

199. Id. § 30 (1 875 ).

200. S ee, e.g., Stat e v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Speller, 86 N.C.

697, 699-701 (1882); Stat e v. Newsom, 27 N.C. (5 Ired.) 250, 253-54 (1844); State v.

Huntly, 25 N .C. (3 Ir ed.) 418, 422-2 3 (1843).

201. For an excellent survey of the r acial implications of nineteenth century arms

control in the Sout h, see Robert J. Cottrol & Raymond T. Diam ond, “Never In ten ded

to be Applied to the White Population”: Firearm s R egulation and Racial

Disparity—The Redeem ed S out h’s L egacy to a Nation al J ur ispru den ce?, 70 CHI.-KENT

L. REV . 1307 (1995), Cla yton E. Cram er, The Racist Roots of Gun Control, 4 KAN. J.L.

& PUB. POL’Y 17 (1995), and Stefan B. Tah massebi, Gun Control and Racism, 2 GEO.

MASON U. CIV. RTS. L.J . 67 (1991 ).

military should be kept under strict su bordin at ion to, a nd

governed by, the civil power.

198

This language quoted the Second Amendment but added

additional language denouncing st anding armies. Su rely if the

anti-individual view of t he Secon d Am endment were correct,

then the North Carolina language (even more heavily weighted

with anti-army language) could not be construed as an

individual right.

But the North Car olina language was indeed so construed.

In 1875, the North Carolina legislature added concealed

weapons control to the state constitution: “Nothing herein shall

justify the practice of carrying concealed weapons, or prevent

the General Assembly from enacting penal statutes against

that pract ice.”

199

The anti-concealed weapons language was

obviously aimed at individual arms carriers, not at the state

militia. And North Carolina courts consistently interpreted the

provision as guaranteeing an individual right.

200

B. State Case Law

Except for some statutes late in the century banning arms

from public parades, gun control in the nineteenth century was

almost exclusively a Sou ther n ph enomenon. In the post-Civil

War period, the Southern gun laws were clearly aimed at

controlling the Freedmen; although written in racially neutral

terms, the laws were meant for, and applied almost exclusively

to, blacks.

201

As for the antebellum period, scholars have speculated that

the Southern controls were aimed at free bla cks. But Cla yton

Cramer has shown that the antebellum laws, wh ich were

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1419

202. See generally Clayton Cramer, Concealed Weapons Laws in the Early

Republic (1998) (unpublished Master’s thesis in History, Sonoma State Un iver sit y) (on

file wit h a ut hor).

203. See Aymette v. Sta te, 21 Ten n. (2 H um .) 154 (18 40). For t he hi st ory of the

right to ar ms in Tenn essee, see Glenn Harlan Reynolds, The Right to Keep and Bear

Arms Under the Tennessee Constitution: A Case Study in Civic Republican Th ought,

61 TENN. L. REV. 647 (199 4).

204. Aymette, 21 Tenn. at 157.

205. Id.

written in facially neutral terms in a period when there was no

Fourteenth Amendment to require racial neutrality, had a

different purpose. Dueling had been widely practiced in the

Southeast; legislative efforts t o outlaw dueling had been

undermined by the courts and by juries. In the absence of

regulated dueling, Southerners whose honor had been offended

sim ply killed the offender. The concealed weapons laws were an

ext en sion of the antidueling laws and were intended to prevent

the victims of insults from killing the insulter. Legislatures

accurately expected massive resistance to the laws, and

therefore included many special enforcement mechanisms, such

as allowing private citizens to bring criminal prosecutions and

forbidding juries to consider the defendant’s motives.

202

The solid majority of courts that reviewed the gun control

laws, which were often challenged under the Second

Amendment and its state analogues, would uphold the

particular control, while affirming an individual righ t to own

and carry guns.

1. T ennessee

One of the most important state gun cases in the nineteenth

century was Aymette v. State, an 1840 decision upholding

restrictions on carrying concealed weapons.

203

The decision was

based on the Tennessee Constitution’s right to arms, but the

court stated that the Tennessee provision was intended “[i]n

the same view” as the Second Amendment.

204

The Aymette

court read the Tennessee provision (and, by analogy, the Second

Amendment) narrowly, finding that the right to arms was only

so that the people as a whole could rise up against tyranny; the

right was not for “private” defense.

205

Further, the right to “bear

arms” meant only the right to carry weapons in a public

military context , not to carry concealed weapons for personal

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1420 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

206. See id. at 161.

207. Id. at 158.

208. Id. at 160. A good argume nt could be ma de t ha t t he re is n ot a s m uch

difference between militia weapons and crime weapons as Aymette and the nineteenth

century majority line of cases would su gges t. Conceala ble k nives m ay b e usefu l for

hand-to-hand combat and for guerilla war fare, and small handguns even more so.

Conversely, rifles can be used to murder innocent people.

209. Aymette may ha ve been too facile in equ ating the ar ms r ight provision in

the Tennessee Constitution with th e Se cond Amendme nt . Th e Te nn ess ee Cons tit ut ion

protected “the right of the people to keep and bear ar ms for their common defence”

and thus contained restr ictive language which t he U.S. Sena te ha d vot ed n ot t o

include in t he Secon d Amen dm en t. While com mon defense may have been the only

purpose of th e Tenn ess ee r igh t, t he Secon d Am endm ent language was broad enough

to in clude oth er pu rp ose s, s uch as self-de fense. See 1 BLACKSTONE, supra note 14,

app. at 300. The Aymette cour t’s th eor y th at conceale d carr y was n ot within the scope

of the arms right was predicated on reasoning that a militia-man would never carry

concealed. But while concealed carry might be of no use to someone engaged in the

“common defence,” concealed car ry could be quite use ful for per sonal defense. Thus

Aymette, an d the cases fr om ot her s ta te s wh ich cite to Aymette, may be on shaky

ground to th e extent that the other state cases involve const itutiona l pr ovision s

worded more broadly than Tennessee’s.

protection.

206

Given the anti-tyranny purpose of the right, the

only arms protected were weapons useful for resistin g tyranny,

but not those useful mainly for crime:

[T]h e use of those weapons wh ich a re usua lly em ployed in

private broils, and which are efficient only in the hands of the

robber and th e assassin . . . . The right to keep and bear th em,

is n ot, t herefore, se cur ed by t he con st itu tion .

207

As to the weapons which were protected:

The citizen s h ave the u nqu alified right to keep the

weapon . . . . But the right to bear arms is not of that

unqualified character. . . . [B]ut it does not follow, that they

may be borne by an individu al, mer ely t o terr ify the people, or

for pu rp oses of priv at e a ssas sin at ion. . . . [T]he legislature may

prohibit such manner of wearing as would never be resorted to

by persons engaged in the common defence.

208

Aymette laid down the line followed by the majority of state

courts considering right to arms cases: the right was for

protection from tyranny; the right encompassed the ownership

of weapons useful for resisting tyranny; bu t the right did n ot

encompass the carrying of concealed weapons not suitable for

resisting tyranny.

209

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1421

210. See And re ws v. Sta te , 50 Tenn . (3 H eis k.) 165 (187 1).

211. See id. at 168.

212. Id. at 170.

213. Barron v. Balti more , 32 U.S. (7 Pe t. ) 243 (183 3).

214. See Andrews, 50 Tenn. at 173-75.

215. Id. at 177.

After the Civil War, the Tennessee Supreme Court decided

another case, Andrews v. State, wh ich ela borated on the

principles of Aymette, and which, like Aymette, was widely cited

in other states.

210

The Tennessee legislature had banned the

carrying of certain weapon s—con cealed or openly—a nd several

defendants charged with violation of the law argued that the

law violated the Second Amendment and the Tennessee

Const itution. The summary of the briefs at the begin ning of the

case shows that, regarding the Second Amendment, the

Attorney General simply replied that the Second Amendment

was not enforceable against the states.

211

In oral argument,

apparently, the Attorney General went furt her, arguing that

the Second Am en dm ent and t he Ten nessee state const itutional

right to arms were meant to protect a “political right.”

212

Citin g Barron v. Baltimore,

213

the Andrews court held that

the Second Am en dm ent wa s inapplica ble to the states.

214

But

the Court const rued the Tennessee provision and t he Second

Amendment together, finding “that, necessarily, the same

rights, and for simila r rea son s, were bein g provided for and

protected in both the Federal and State Constit ut ions . . . .”

215

The court’s construction of th e state and federal right to arms is

worth quoting at length, because it is a perfect example of the

dominant line of nineteenth -centur y case law on the right to

arms, expressing several principles:

1. Th e pu rpose of th e right is to secure a militia, which is a

foundation of a free society.

2. To m ak e possible a m ilitia, all persons have the right to

purchase, use, pr act ice with , an d ca rr y weapon s for all non-

nefarious purposes.

3. The right only inclu des th e type of arms u sed by a militia

(e.g., rifles and swords) and does not include non-militia type

weapons allegedly favored by crim inals (e.g., concealable

knives).

As the court wrote:

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1422 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

216. Id. at 178-79. A “r epeat er ” is “any firearm capable of fir ing mor e tha n on e

shot without ha vin g to be re loa ded m an ua lly.” R.A. STEINDLER, STEINDLER’S NEW

FIREARMS DICTIONARY 213 (1985); see also 2 THE NEW SHORTER OXFORD ENGLISH

DICTIONARY 2548 (3d ed. 1993) (defining “repeat er” as “[a] firearm which fires several

shots without reloading,” and explaining that this usage first appeared in the middle

It was th e efficiency of the pe ople a s soldiers, wh en called int o

actual service for the security of the State, as one end; and in

order to this [sic], th ey w ere to be a llowed t o keep arms. What,

then, is in volved in th is r igh t of keeping ar ms? It necessa rily

involves the right to purchase and use them in such a way as

is usual, or to keep them for t he or din ary pu rp oses t o wh ich

they are adapted; an d a s they are to be kept, evidently w ith a

view that the citizens making up the yeomanry of the land, the

body of th e m ilitia, shall becom e fam iliar with t heir u se in

times of peace , th at th ey m ay th e m ore efficiently use them in

times of war; then the right to keep arms for this purpose

involves the right to practice their use, in order to attain to

this efficiency. The right and use are guaranteed to the citizen,

to be exer cised a nd enjoyed in tim e of peace, in su bor din at ion

to the general ends of civil society; but, as a right, to be

maintained in all its fullness.

The right to keep arms, necessarily involves the right to

purchase them, to keep them in a state of efficiency for use,

and to purchase and provide ammunition suitable for such

arm s, and to keep them in repair. And clearly for this purpase

[sic], a man would have the right to carry them to and from his

home, and no one could claim that the Legislature had the

right to punish h im for it, without violating th is clause of the

Constitution.

But farther than this, it must be held, that the right to

keep arms, involves, necessarily, the right to use such arm s for

all th e ordin ar y pu rposes, an d in all the ordina ry m odes usual

in th e coun try, an d to which a rm s are adapted, limited by the

du ties of a good citizen in tim es of pea ce . . . .

. . . .

What, then, is he protected in the right to keep and thus

use? Not ever y thin g that m ay be u seful for offen se or defen se;

but what may properly be included or understood under the

title of arms, taken in connection with the fact that the citizen

is to keep them, as a citizen. . . . [W]e would hold, that the rifle

of all descriptions, the shot gun, the musket, and repeater, are

such arms . . . .

216

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1423

nineteenth century).

217. Andrews, 50 Tenn. at 182.

218. State v. Staten, 46 Tenn. (6 Cold.) 233, 277, 279 (1869) (Shackleford, J .,

concur ri ng). The state court explained:

The right of suffrage being a political, and not a natural or inherent

right, the sovereign power has the righ t to restrict or enlarge t he pr ivilege.

. . .

. . . The one [the right to follow a profession] is an inherent and na tural

right, an d [the rig ht to vot e], a polit ical right or privilege, a trust delegated.

The first falls directly wit hin t he pr ohibitions of t he Con st it ut ion of th e

United States; the other is a trust, subject to be r evoked by t he sover eign

will.

Id. at 277-79. Ridley v. Sherbrook , 43 Tenn. (3 Cold.) 569, 576-77 (1866), is also

instru ctive of th is dist inct ion:

The elective franchise is not an inalienable right or privilege, but a political

right, conferred, limited, or withheld, at the pleasur e of the people, actin g

in their sover eign capacity.

. . . .

These [rights to follow a pr ofession or calling] are civil rights, and

inalienable, an d of which h e ca nn ot b e depri ved by t he people of the State.

But a political right st an ds u pon a very differen t p rinciple; it is a political

privilege or gra nt, that may be extended or recalled, at the will of the

sovereign power.

Id.

219. Andrews, 50 Tenn. at 182.

220. See id. at 183; see also supra notes 112, 114 and a ccompanying text.

The Attorney General, however, had argued “that the right

to keep a nd bear arms is a political, n ot a civil right .”

217

Under

existing Tennessee doctrine, r igh ts classified a s “political” (su ch

as voting) were subject to limitless legislative restriction, while

rights classified as “civil” were not.

218

The Ten nessee court

responded that the Attorney General

fails to distinguish between the nature of the right to keep,

and its necessary incidents, and the right to bear arms for the

com mon defense. Bearing arm s for the common defense may

well be held to be a politica l right, or for pr otection an d

maintenance of such rights, intended to be guaranteed; but the

right to keep them, with all that is implied fairly as an incident

to this right, is a pr ivate individu al right, guar an teed to t he

citizen, not the soldier.

219

The court then quoted at length from Justice Story’s treatise on

constitutional law:

220

We cite this passage as throwing light upon wha t was intended

to be gu ar an teed to t he people of the States, against the power

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1424 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

221. Id. at 183-84.

222. 21 Tenn . (2 H um .) 154 (1840).

223. See Andrews, 50 Tenn. at 184-85 (quoting Amyette v. State, 21 Tenn. (2

Hum.) 154 (184 0)).

224. Id. at 186.

225. Id. at 187. This formulation closely prefigured the U .S. Supreme Court’s

handling of a challenge to a federal law prohibiting unregister ed possession of short

shotguns; the Court sent the case back to trial court to determine if short shotguns

were milit ia-type wea pons. S ee United States v. Miller, 307 U.S. 1 74, 178-83 (1 939 ).

226. See Andrews, 50 Tenn. at 187-88.

227. See id. at 193-95.

of the Federal Legislature, and at the sam e time, as showing

clearly what is the m ea ning of our ow n Con stitu tion . . . . So

that, the m eaning of the one, will give us an understanding of

the purpose of the other.

The passa ge from Story, show s clearly that this right was

intended , as we have maintained in this opinion, and was

guaranteed to, and to be exercised and enjoyed by the citizen

as su ch, a nd not by him as a soldier, or in defense solely of his

political rights.

221

The court quoted additional material from Justice Story and

shared his worries about the neglect of the militia. The court

also quoted the earlier Tennessee case, Aymette v. State,

222

and

its invention of the “civilized warfare” test for determining the

types of arms constitutionally protected.

223

The Tennessee statute had forbidden the concealed carrying

of, among other small weapons, any “pocket pistol.”

224

The

Tennessee Supreme Court ruled that whether the defendant’s

revolver was a weapon—the “skill in the use of which will add

to the efficien cy of the soldier ”—was a matter for decision at

trial, based on the evidence.

225

The instant statute was clearly

unconstitutional, however, because it forbade all carrying,

rath er than just concealed carr y.

226

A concurring and dissenting opinion argued for a broader

rule than the majority, not limiting the type of arms t o

“civilized warfare” weapons and allowing only the “regulation”

of concealed carry, but not its prohibition.

227

2. Arkansas

The anti-individual interpretation of the Secon d

Amendment made its first appearance in a concurring opinion

in an 1842 Arkansas decision upholding a law against carrying

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1425

228. See St at e v. Bu zza rd , 4 Ar k. 18 (1842 ).

229. See ARK. CONST. of 1836, ar t. II , § 21 (“That the free whit e men of this

State sh all ha ve a rig ht to k eep an d to bear arm s for their common defence.”). The

Arkansas Constitution was one of a few of the nineteenth century st at e const itu tion s

to include a “common defence” purpose and no oth er. During Senate debate over the

Secon d Amendme nt , th e Unit ed S ta te s Se na te re jected a mot ion t o add “for t he

comm on defense” to the end of the Second Amendment. See SENATE JOUR NAL , Sept.

9, 1789, attested by Sam A. Otis, Secretary of the Senate, Executive Communications,

box 13, p.1, Virginia Sta te Libra ry a nd Archives, cited in Dennis, supra note 1, at 70

n.54; SENATE SUBCOMM. ON THE CONST., supra note 1, at 6.

230. See Buzzard, 4 Ark. at 19-23.

231. Id. at 24.

concealed weapons against a challenge under the Arkansas

Const itution and the Second Amendment.

228

Existing Arkansas

case law provided sufficient authority to uphold the law, but

the court majority went further, offering a narrow construction

of the Second Amendment and its corresponding provision in

the 1836 Ar kansa s con st itution.

229

The majority argued that:

1. All natural rights are surrendered to full government

control upon the creation of a government;

2. An “absolu te” right to ar ms would mean t ha t disarm ing

violent criminals upon their apprehension was

unconstitutional;

3. Th er efor e, since t he p olicy im plications of t he str aw-m an

“absolute” right to arms are unacceptable, there must be no

right to arms at all.

230

Accordin g to this Arkansas court, the sole purpose of the

Second Amendment was to secure a well-regulated milit ia: “the

language used appears to indicate, distinctly, that this, and this

alone, was the object for which the article under consideration

was adopted.”

231

The Am en dm ent wa s based on the t heor y

that the militia, without arms, however well disposed, might

be unable to resist, successfully, the efforts of those who

should consp ire to overthrow the esta blished institutions of the

country, or s ubju ga te th eir common libert ies . . . . [F ]or this

purpose only, it is conceived that the right to keep and bear

arms wa s retained, and the p owe r w hich, wit hout s uch

reservation , would have been vested in the government, to

prohibit, by law, their keeping and bearing arms for any

purpose wh at ever, w as so far limited or withdrawn . . . that

the people designed and expected to accomplish this object, by

the ad option of th e article under consid eration, which wou ld

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1426 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

232. Id. at 24-25.

233. See id. at 27.

234. Id. at 28.

235. Id. at 32 (D ickinson , J ., con cur ring ).

236. See id. at 33 (Dick inson , J ., con cur ring).

forever invest them with a legal right to keep and bear arms

for that purpose; but it surely was not designed to operate as

an immunity t o th ose, who shou ld so k eep or bear th eir ar ms

as to in jure or enda nger th e privat e righ ts of oth er s, or in any

ma nn er prejudice the common interests of society.

232

Thus, since the restriction on carrying concea led arms did not

impair the ability of the people to rise against tyranny, the law

did not violate the state constitution’s right to arms.

233

As for

the Second Amendmen t, it was “an open qu estion” since no

court had yet construed it.

234

Justice Dickinson’s concurring opinion went much further.

“The provision of the Federal Constitution . . . is but an

assertion of that gen eral right of sovereignty belonging to

independent nations, to regulate their military force.”

235

Since

the law against carrying concealed weapons did not interfere

with the performance of federal militia duty, it did not violate

the Second Amendment.

236

This represents the birth of the anti-

individual version of the Second Amendment.

The dissent bitterly contested the majority’s arguments one-

by-one, pointing out that the same rationale could be used to

obliterate any natural law right guaranteed under the

Arkansas or federal constitutions. Regarding the Second

Amendment, the dissent lamented that under the concurring

opinion’s interpretation,

it is th e m ilitia alon e wh o possess th is right, in

contradistinction from th e m ass of th e people; and even they

cannot use th em for p rivat e defen ce or personal aggression ,

but mu st use them for public liberty, according to th e

discre tion of the Legislature. According t o the rule laid down

in their interpretation of this clause, I deem the right to be

valueless, and not worth preserving; for the State

un qu est iona bly possesses the power, without the grant, to arm

the militia, and dire ct h ow t hey s hall be em ployed in cas es of

invasion or dom estic in su rr ection. If this be the meaning of the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1427

237. Id. at 35 (Lacy , J ., d iss en ting ).

238. Carroll v. Sta te , 28 Ark . 99, 101 (18 72).

239. Id.

240. See Fi fe v. St at e, 31 Ar k. 455 , 456 (1876).

241. See id. at 458.

242. See id. at 458-59. Regarding the Second Amendment, the court cited 3

STORY, supra note 106, at 750-51, §§ 1896-97, and THOMAS COOLEY, infra note 395,

at 498, to support the statement that

the arm s which it [the Second Amendment] guarantees American citizens

the right to keep and to bear, are such as are needful to, and ordinarily

used by a well r egulated m ilitia, and such as are necessary and suitable to

a fre e people, to en able t hem to resist oppression, prevent usu rpa tion, repel

invasion, et c., et c.

Fife, 31 Ark. at 458.

Constitu tion , why give that which is no right in itself, an d

guaranties a privilege that is useless?

237

Wheth er rightly or wrongly reasoned, the concurrence in

State v. Buzzard mark s the birth of the states’ rights, anti-

individual view of the Second Amendment. It is notable that the

birt h occurs half a century after the ratification of the

Amendment, and the concurrence was not able to cite a single

authority of any type in su pport of its position. Anti-

individualists appear unaware of the Buzzard concurrence,

although it should have pride of place as the creat or of their

theory.

After the Civil Wa r, the Arkansa s cou rt moved away from

Buzzard’s more extreme la nguage, and bega n to restore some

force to the right to arms. An 1872 decision cited Buzzard

merely for the proposition that the legislature could prohibit

injurious uses of firearms, “so long as their discretion is kept

within reasonable bounds.”

238

Under this standard, a law

against concealed carry was “not unreasonable.”

239

In 1876, the court heard a Second Amendment and state

constitutional challenge to a new law prohibiting the

wearing—openly or concealed—of various edged weapon s,

pistols, and brass knuckles.

240

The court ruled that the Second

Amendment was not a limit on the states.

241

Following the 1871

Tennessee decision Andrews v. State, the Arkansas court held

that the state Constitution and the Second Amendment

protected citizen ownership of arms, but lim ited that pr otection

to weapon s t hat were useful for purposes of war.

242

Thus, the

ban on these particular concealable weapons was

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1428 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

243. See Fife, 31 Ark. at 461-62.

244. See id. at 461.

245. Wilson v. State, 33 Ark. 557, 560 (1878) (striking a ban on unconcealed

carry).

246. See Nu nn v. S ta te , 1 Ga. 243 (184 6).

247. Id. at 246.

248. Id. at 247.

constitutional.

243

While large military-size repeating pistols

were within the scope of the right to arms, small pistols were

not.

244

In 1878, the court struck down a ban on carrying weapons,

as applied t o the defendant’s carrying of a concealed army-sized

pistol: “If cowardly and dishonorable men som et imes sh oot

unarmed men with army pistols or guns, the evil must be

prevented by the penitentiary and gallows, and not by a general

depr ivat ion of a constitutional privilege.”

245

Although the

Arkansas Supreme Court never formally overruled Buzzard,

the court’s postwar decisions returned Arkansas law to the

mainstream. The Buzzard concurrence’s assertion that the

right to arms was n ot individual vanished from Amer ican case

law for the rest of the nineteenth century.

3. Georgia

The 1846 case Nunn v. State was the first case in which a

court used the Second Am endm ent to invalidate a gun control

law.

246

The Georgia legislature had banned the sale and

possession of knives intended for offensive or defensive

purposes and pistols, except “such pistols as are known and

used as horseman’s pistols.”

247

The law made an except ion

which allowed possession (but not sale) of the banned weapons

if the weapon were worn “exposed plainly to view.”

248

The Georgia Const itution at the time had no right to arms

provision, but the stat e Supreme Court combined nat ural rights

analysis with the Second Amendment to declare the law

unconstitutional:

[When] did any legislative body in the Un ion ha ve the right to

deny to its citizens the privilege of keeping and bearing arms

in defence of themselves an d their country?

. . . [T]h is is on e of t he fundamental principles, upon

which re st s t he gr ea t fa br ic of civil liberty, reared by the

fathers of the Revolution and of the country. And the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1429

249. Id. at 249.

250. Id. at 250.

251. Id.

252. Id. at 251.

Con stitu tion of the United Stat es, in declar ing that th e right of

the people to keep and bear arms, should not be infringed, on ly

reiterated a t ru th an nounced a centu ry befor e, in th e act of

1689, “to extend and secure the rights and liberties of English

subjects”—Whether living 3,000 or 300 miles from th e royal

palace.

249

And thus, “[t]he la nguage of the second amendment is broad

enough to embrace both Federal and State governmen ts—nor is

there anything in its terms which restricts its meaning.”

250

The Georgia court kept the introductory clause to the

Amendment firmly in view: “our Constitution assigns as a

reason why this right shall not be interfered with, or in any

manner abr idged , that the free enjoyment of it will prepare and

qu alify a well-regulated militia, wh ich are n ecess ary to the

security of a free State.”

251

Thus:

If a well-regulated militia is necessary to the security of th e

State of Georgia and of the U nited Sta tes, is it com petent for

the General Assembly to ta ke aw ay th is secu rit y, by disarm ing

the people? What advantage would it be to tie up the han ds of

the national legislature, if it were in the power of the S tates to

destroy this bulwa rk of defence? In solemnly affirming that a

well-regulated militia is necessary to the security of a free

State, and that, in order to train properly that militia, the

unlimited right of the people to k eep and bear arms shall not be

impaired, are not the sovereign people of the State committed

by this pledge to preserve this right inviolate?

252

And what is the scope of this “unlimited right”?

The right of the whole people, old and young, men, women and

boys, and not militia only, to keep and bear arms of every

description, and not su ch merely as are used by the m ilitia,

shall not be in fringed , curtailed, or broken in u pon, in the

smallest degree; and all this for the important end to be

attained: th e rearin g up and qualifying a well-regulated

militia, so vitally neces sa ry to t he se cur ity of a fr ee St at e. Our

opin ion is, that any law, State or Federal, is repugnant to the

Constitution, and void, which contravenes th is right, originally

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1430 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

253. Id. For th e im pact of t he right to a rm s on th e Texas wa r for independence

against Mexico—which was precipitated by the Mexican government’s attempt to

confiscate a cannon, and the Texans’ reply of “Come and take it,” see Stephen P.

Halbrook, The Right to Bear Arms in Texas: The Intent of the Framers of the Bills

of Rights, 41 BAYLOR L. REV. 629 (1989).

254. Nunn, 1 Ga. at 251. The Nunn Court’s approach to natural rights was not

unusual for its time. In an 1857 Massa chusetts case, Chief Justice Lemuel

Shaw—perhaps the most influential state court judge of the period—used principles

of “natural justice” to find that the state constitut ion required th e use of grand juries

for infamous crimes, desp ite the absence of any gra nd jury language in the

Massachusetts Bill of Rights. S ee Jones v. Robbi ns , 72 Ma ss. (8 Gra y) 329 (18 57).

255. See Hill v. State, 53 Ga. 472, 473-74 (1874). Justice McCay opined that if

the qu est ion w ere on e of first impress ion, he would h old tha t both th e Se cond

Amendment and the Georgia provision only protected “the arms of a militiaman, the

weapons ordin arily used in battle, t o-wit: gun s of every k ind, swords, bayonets,

horseman’s pistols, etc.” Id. at 474. But, he admit ted, Nunn v. State requ ired a mu ch

broader definit ion. See id. at 475.

belon ging to our forefathers, trampled under foot by Charles I.

and his two wicked son s and su ccessor s, re-est ablished by the

revolut ion of 1688, conveyed to this land of liberty by the

colonists, an d fin ally in corp ora ted con spicuously in our own

Magna Charta! And Lexin gton, Concord, Camden, River

Raisin, Sandusky, and the laurel-crowned field of New Orleans

plead eloquen tly for this in terp re ta tion ! And t he a cqu isit ion of

Texas may be considered th e full fruits of this great

constitutional right.

253

The opinion concluded by holding that the ban on concealed

carrying was valid because it did not interfere with a citizen’s

Second Amendment right; but insofar as the law “contains a

prohibition against bearing arms openly, [it] is in conflict with

the Constitution, and void”

254

Since the indictment did not

specify that Nunn’s weapon was concealed, the charges were

quashed.

After the Civil War, Georgia added a right to arms to its

state constitution. Although courts enforced this provision, they

rejected the Second Amendment as a limit on state power, and

also rejected the use of natural law.

255

4. Louisiana

In 1850, the Louisiana Su pr em e Court faced a challenge t o a

state law banning concealed carry, bu t allowing open carry. The

court considered the Second Amendment to be applicable to the

states—to protect an individual’s right to carry a gun for

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1431

256. See St at e v. Ch an dle r, 5 La . Ann. 489, 490 (18 50).

[The law] interfered with no ma n’s right to carry arms (to use its words) “in

full open view,” which pla ces m en up on an equality. This is the right

guaranteed by the Constitution of the United States, and which is calculated

to incite men to a manly and n oble defence of them selves, if necessary, an d

of their country, without any tendency to secret a dvantages an d un manly

assassinations.

Id.

257. See Sm it h v. St at e, 1 1 La . An n. 633 , 633 (1856).

The statute against carr ying concealed weapons does not contravene the

secon d article of the amendments of the Constitution of the United States.

The arms there spoken of are such as are borne by a people in war, or at

least carried openly. The a rticle explains itself. It is in these words: “A well

regulated militia being necessary to the security of a free State, th e right

of the people to keep and bear ar ms sha ll not be infringed.” This was never

intended to prevent t he ind ividua l St at es fr om a dopt ing su ch m ea sure s of

police as might be n ecessa ry, in order to prot ect th e or derly and well

disposed citizens from th e treach erous use of wea pon s not e ven design ed for

any purpose of public defence, and used most frequently by evil-disposed

men who seek a n advan tage over t heir an tagonist s, in the disturbances and

breaches of the peace which they are prone to provoke.

Id.

258. See State v. Jumel, 13 La. Ann. 399, 399-40 0 (18 58) (“ The statute in

quest ion does not infringe the right of the people to keep or bear arms. It is a

measure of police, prohibiting only a part icular m ode of bearing arms which is found

dangerous to th e pea ce of society.”).

259. See State v. News om, 27 N.C. (5 I red.) 250, 251 (1844) (up hold ing re striction

against possession of arms by free people of color since they were not parties to the

constitutional compa ct).

260. N.C. BILL OF RIGHTS § XVII (1776); see supra note 190.

personal defense—but held that a state law which banned only

carrying concealed did not violate the Second Amendment.

256

Subsequent cases in 1856

257

and 1858

258

reaffirmed this holding.

5. North Carolina

An 1844 decision of the North Carolin a Su pr em e Court

relied on Barron v. Baltim ore to rule that the Second

Amendment does not constrain state laws.

259

The state

constitution provided

[t]hat the people have a right t o bea r a rm s, for th e defen ce of

the State; and, as standing armies, in time of peace, are

dangerous to liberty, th ey ou ght n ot t o be kept up; and that

the military should be kept u nder s tr ict subordin at ion to, a nd

governed by, the civil power.

260

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1432 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

261. See Newsom, 27 N.C. at 254-55.

262. See Stat e v. Kerner, 107 S.E. 222, 224-26 (N.C. 1921) (citing Cooley to

declare unconstit utional a law against carrying pist ols, openly or concealed, on public

proper ty); Stat e v. S peller, 86 N .C. 697, 700-01 (1882); S tate v. Hu nt ly, 25 N .C. (3

Ired.) 418, 42 2-23 (184 3); see also Car l W. Thu rm an, III, N ote, State v. Fenn ell: The

North Car olin a T rad ition of Reason abl e Regulat ion of th e Right to Bear Arms, 68 N.C.

L. Rev . 1078 (1 990) (dis cus sin g va rious t went iet h ce nt ur y cases).

263. See Cock ru m v . St at e, 2 4 Te x. 394, 397 (185 9).

264. Id. at 402.

Although this provision was replet e with ant istanding army

language, the court held that the North Carolina provision

guaranteed more than just a right to the state militia. The

North Carolina Supreme Court treated the constitutional

guarantee as protecting a right of all persons to possess and

carry firearms, including for defensive purposes. The court

held, however, that an implicit exception allowed the

legislature to exclude free blacks from enjoying t his right;

therefore an 1840 law requiring free blacks who wished to own

guns to obtain a license was constitutional.

261

(The implication,

of course, was that a licensing statute applied to a citizen with

full civil rights would be unconstitutional.)

The North Car olina court’s decision illustrates tha t, contra

the central argument of the anti-individualists, concer n about

standing armies is not inconsist en t wit h pr otect ion of a broad

individual right to personal defense. The other North Carolina

decisions from the nineteenth century (and the twentieth)

treated the arms rights provision as protective of an important

individual right of personal defense.

262

6. Texas

A Texas statute specified that manslaughter with a Bowie

knife or dagger would be treated as murder, and a defendant in

Cockrum v. State claimed that his conviction under this statute

violated the Second Amendment.

263

The court began by

explaining that the introductory clause of the Second

Amendment “has referenee [sic] to the perpetuation of free

government, and is based on the idea, that the people cannot be

effectually oppressed a nd enslaved , wh o are not first

disarmed.”

264

The Texas clause “has the same broad object in

rela tion to the government, and in addition thereto, secures a

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1433

265. Id.

266. See id. at 402-03. “The right to carry a bowie-knife for lawful defense is

secured, and must be admitted. It is an exceeding destructive weapon. . . . The gun

or pistol may miss its aim . . . . The bowie-knife . . . is the instrument of almost

certa in death.” Id. at 403.

267. See En glis h v . St at e, 3 5 Te x. 473, 474 -75 (1872 ).

268. The English case h igh ligh ts th e flip sid e of the “civilized war fare” coin: if

“civilized warfare” was a good rationa le for excludin g various sm all weapons from the

right to ar ms, it could also im ply the right to own all military type weapons.

However, as Don Kates points out, the t extual language “keep and bear” suggests

that only per sonall y por ta ble w ea pons a re wit hin th e scop e of the right to “arms”;

therefore, th e siege gun a nd oth er form s of crew-served, non -portable artillery would

not be covered by the a rm s righ t. See Kates, Handgun Prohibition, supra note 1, at

261.

personal right to the citizen.”

265

In other words, the Second

Amendment guaranteed a right to possess arms to resist

tyranny, but not a right to possess arms for personal protection.

A second implication was that the Second Amendment was a

collective right, rather than a “personal” one. But there is no

indication that the Texas court meant that individual citizens

could not exercise Second Amendment rights. The court, basing

its decision on the Texas arms right, simply ruled that the law

was constitutional because it did not ban the carrying of the

Bowie knives, but merely set a higher penalty for criminal

misuse of this pa rticularly danger ous wea pon .

266

After the Civil War, while Texas was under a

Reconst ruction government very much concerned with

Confederate sympathizers, the legislature banned the carrying

of certain edged and blunt weapon s, whet her openly or

concealed; ther e wer e exceptions for carrying under certain

circumstances. Deciding a Second Amendment and Texas

Const itution challenge to the law, the Texas Supreme Court

decision in English v. State declared that the Second

Amen dment bound the states.

267

Following “civilized warfare”

precedent from other states,

268

the court stated

The word “arms” in the connection we find it in the

constit ution of the United States, refers to the arm s of a

militiaman or soldier , an d the word is u sed in its m ilitary

sense. The arms of the infantry soldier are the musket and

bayonet; of cavalry and dragoons, the sabre, holster pistols and

car bin e; of th e a rt iller y, the field piece, siege gun, an d m ort ar ,

with side arm s.

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1434 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

269. English , 35 Tex. at 476-77.

270. State v. Duk e, 4 2 Te x. 455, 458 (1875).

271. Id.

272. See id.

273. See Du nn e v. Pe ople , 94 Ill. 120, 124-2 8 (18 79).

274. The court was quoting language from Article I, Section 8 of the Constitution,

which in fact gives such authority to Congress. This grant is not inconsist ent with

pre-existent state authority, so long a s the sta te authorit y is not u sed in conflict with

the federal authority. See Houston v. Moore, 14 U.S. (1 Wheat.) 1, 16-17 (1820)

(holding that s ta te au th ority ove r t he mi lit ia pr e-exists th e Cons ti tu tion); 1

BLACKSTONE, supra note 14, app. at 273.

The terms dirks, daggers, slungshots, sword-canes, brass

knuckles an d bowie kn ives, belong to no military vocabulary.

269

Three yea rs later, political power in Texas h ad shifted, and

State v. Duke repudiated English’s narrow reading of the type

of arms protected. Th e Texa s Const itution was r ead t o pr otect

all “arms as are commonly kept, according to the customs of the

people, and are appropriate for open and manly use in self-

defense, as well as such as are proper for the defense of the

State.”

270

These included, besides the weapons described in

English, “the double-barreled shot-gun, the huntsman’s rifle,

and such pistols at least as are not adapted to being carried

concealed.”

271

Duke rejected the defendant’s effort to raise the

Second Amendment, stating that the Second Amendment did

not limit the states, and thus based the decision solely on the

Texas Const itution.

272

7. Illinois

In Dunne v. People, the Illinois Su pr em e Court affirmed the

centrality of state power over the militia, citing the Tenth

Amendment and the United States Supreme Court’s Houston v.

Moore precedent.

273

The Dunne Court also explained how a

state’s constitutional duty to operate a militia was

complemented by the right of the state’s citizens to have arms:

“A well regulate d m ilit ia being n ecessary to the secu rity of a

free State,” the States, by an amendment to the constitution,

have imposed a restriction that Congress shall not infringe the

right of the “people to keep and bear arms.” The chief

executive officer of the State is given power by t he con stitu tion

to call out t he m ilitia “to execu te the laws, suppress

insu rr ection an d r epel in vasion .”

274

This would be a mere

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1435

275. Dunne, 94 Ill. at 132-33.

276. See W. VA. CONST. art. 3, § 22 (“A person has the r ight to keep and bear

arms for t he defens e of self, fam ily, h ome and state, and for lawful hunting and

recreational us e.”) (ena cted in 1986 ); see also Halbrook, supra note 19, at 68.

277. State v. Work ma n, 35 W . Va. 367, 367 (1 891 ).

278. Id. (quoting W. VA. CODE ch. 148, § 7).

279. Id. at 372.

280. Id. at 373 (citing Bish. Crim. St. § 792). Fur ther, t he court explained, th e

Secon d Am en dm en t wa s in ten de d t o p r ot ec t “pu bl ic li be rt y, ” a nd incorpora ted va rious

restrictions from E nglish law r egar ding t he carr ying of weapons. Id. at 372-73.

barren gran t of power u nless the Sta te had power to organize

its own militia for its own pu rposes. Un orga nized, t he militia

would be of no practical aid to th e executive in main ta inin g

order and in protecting life and prop er ty wit hin th e lim its of

the State. These are duties that devolve on the State, and

unless th ese righ ts ar e secur ed t o th e citizen, of wh at worth is

the State government?

275

8. West Virginia

West Virginia did not have a state constitutional right to

arms until the twentieth century.

276

The 1891 case of State v.

Workman involved a Second Amendment challenge to a statute

banning th e carrying of “any revolver or other pistol, dirk,

bowie-knife, razor, slung-shot, billy, met allic or other false

knuckles, or any other da nger ous or deadly weapon of like kind

or character.”

277

The statute allowed the defendant to win an

acquittal by proving that he was “carrying su ch weapon for s elf-

defence and for no other purpose.”

278

The applicability of the Second Amendment to the states

was, sa id the court, “a question upon which authorities

differ.”

279

Following the “civilized warfare” theory of other state

courts, West Virginia stated that the Second Amendment

protected ownership of

the weapons of warfare to be used by the m ilitia, su ch as

swords, guns, rifles, an d m uskets—arm s to be u sed in

defending the State and civil liberty—and not to pistols, bowie-

knives, brass knu ckles, billies, and such other weapons as are

usually employed in brawls, street-fights, duels, an d affrays,

and are only habitua lly carried by bu llies, blackgu ards, and

despara does, to t he ter ror of th e com munity an d t he in jury of

the State.

280

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1436 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

281. In addition to the cases discussed above, see Walburn v. Territory, 59 P.

972, 973 (Okla. 1899) (holding that a concealed weapon statute “violates none of the

inhibitions of the constit ut ion of the Un ited Sta tes”).

282. In addition to the cases discussed above, see State v. Shelby, 90 Mo. 302

(1886) (holding that the Second Amendment is inapplicable to the states; that a law

against carrying concealed weapons in certain places except when n ecessa ry for

personal defense is valid; that a law against carrying a weapon while intoxicated is

valid; an d t ha t a “revolving pist ol” is w ithi n s cope of st at e r igh t t o ar ms ).

283. But not everyone thought th at dirk s were only for scoundrels. Nathaniel

Beverly Tucker, son of St. George Tu cker (and, like his father, a law professor at

William and Mary and a state court judge) wrote a novel in which one of the heroes

(a Virginian wh o is participat ing in a guer illa war against a tyrannical federal

government) carries a dirk. See NATHANIEL BEVE RLY TUCKER, THE PARTISAN LEADER:

A TALE OF THE FUTURE 12 (197 1) (1856).

Thus, the anticarrying statute stood. However, the individual

rights implications of the decision are clear.

9. State case law summary

The majority of state courts in the nineteenth century

upheld restrictions on the carrying of concealed weapon s.

Courts affirmed the righ t of citizens t o carry firearms openly for

protection but held that concealed carry could be regulated, or

even banned, by the legislature.

281

Courts differed on whether

the Second Amendment applied directly to the states.

282

Similar ly, most st ate courts u ph eld restrictions on the types

of weapons which were protected by the state right to arms.

Rifles, shotguns, some or all handguns, and swords were

protected; but weapons thought to be associated with dangerous

characters—in particular , dirks and bowie knives—were

gen erally held to be outside the scope of the righ t to arms.

283

While validat ing par ticular gun controls, every nineteenth

century state court judge who sa id anything about the Second

Amendment, except for one concurring judge in an 1842

Arkansas case, agreed that it protected the right of individua l

Americans to own firearms.

IV. ANTEBELLUM YEARS AND THE CIVIL W AR

The right to bear arms was often analyzed with the issue of

slavery in mind. Proslavery and abolitionist commentators

agreed: a freedman had the right to bear arms, while

disarmament was an essential characteristic of a slave.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1437

284. S ee, e.g., Kat es, Hand gun Prohibit ion, supra note 1, at 246; Kopel & Little,

supra note 1, at 526.

285. Scott v. Sanford, 60 U.S. (19 How.) 393, 417 (1856). Of course, Chief Justice

Taney did not explicitly say “and the right to keep and bear arms wher ever they

went, which is guaranteed by the Second Amendment,” any more than he explicitly

said “the righ t t o hold public m eet ings u pon political affa irs, which is guar anteed by

the Fir st Am endmen t.”

286. Id. at 450.

A. Dred Scott

Dred S cott ma y be the best-known case decided by the

antebellum Supreme Court. Even persons who think that

“Marbury vs. Madison ” was a n impor tant boxing match may

have some passin g familiarity with “Dred Scott.” The Dred

Scott case is sometimes found among Standard Model articles

on the Second Amendment,

284

but is entirely absent from the

anti-individual right articles.

Chief Justice Taney’s majority opinion held that a free bla ck

could not be an American citizen. To support this conclusion,

Justice Taney enumer ated the parade of horribles which would

follow from American citizenship for blacks: th ey would have

the right to “the full liberty of speech in pu blic and priva te upon

all subjects upon which its [a state’s] own citizens might speak;

to hold public meetings upon political affairs, and to keep and

carry arms wherever they went.”

285

Another part of the opinion explained that Congress had no

power to infringe upon civil liberty (including, from the Taney

Court’s viewpoint, the righ t to possess pr operty in the form of

slaves) in the territories:

[N]o one, we p resume, will contend that Congress can make

any law in a Territ ory respecting the es ta blishmen t of religion ,

or t he free exercise ther eof, or ab rid gin g the freedom of speech

or of th e pre ss, or t he right of the people of the Territory

pea ceably to a ssem ble, an d t o petit ion th e Gover nmen t for the

redr ess of gr ieva nces. . . .

Nor can Congress deny to the people the right to keep and

bear arms, nor the right to trial by jury, nor compel any one to

be a wit ness against him self in a cr iminal pr oceed ing . . . .

286

The above statement, which treated the right to arms as one of

several enumerated constitutional right s belonging to

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1438 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

287. S ee, e.g., Stephen Dou glas, The Dividing Line Between Federal and Local

Authority: Popu lar S overeign ty in th e Territories, HARPER’S, Sept. 1859, at 519, 530.

One other slavery case involving a Supreme Court Justice should be mentioned.

In 1833, two months after Barron v. Baltimore was decided, Supreme Court Ju stice

Henry Baldwin, while circuit-riding, listed the Second Amendment among the

individual rights protected by the U.S. Con st itu tion , an d im plied t ha t t he Secon d

Amendment was binding on the states. See Johnson v. Tompkins, 13 F. Cas. 840

(C.C.E.D. Pa. 1833) (No. 7416). T he cas e of Johnson v. Tompkins arose out of a slave-

owner’s lawsuit against a Pennsylvania consta ble who had arrested t he slave-owner

for kidnappin g and breach of the peace while th e slave-owner was a ttempting to

recapture an alleged runaway slave. After the slave-owner, Johnson, was acquitted

of the criminal charges, he sued Tompkins and the others who had arrested him and

had interfered with his a ttempt to recaptur e his slave pr operty. (Justice Baldwin

instru cted the jury that although slavery’s existence “is abhorren t to all our ideas of

natural right and justice,” the jury must respect the legal sta tu s of slaver y. Id. at

843.)

As part of the jury charge, Justice Baldwin listed some of th e constitutional rights

possessed by the plaintiff, Johnson. J ustice Baldwin listed the Pennsylvania

Constitution’s right to acquire, possess, and protect property; the P enn sylvania

Constitution’s bar on deprivation of property except “by the judgement of his peers,

or the law of the land”; and the Pennsylvania Constitution’s “right of citizens to bear

arms in defence of them selves and th e stat e.” Id. at 850. Justice Baldwin then began

listing Johnson’s rights under the U.S. Constitu tion—the Article IV guarantee that

“the citizens of ea ch sta te shall be ent itled t o th e pr ivileges an d im mu nit ies of

citizens in the several states”; the prohibition on stat e im pairment of th e obligat ions

of contract—and then stated that “[t]he second am endm ent provides, ‘that the right

of the people t o keep and bear arms shall not be infr inged.’” Id. The rights litany

concluded with the ban on depriva tion of proper ty wit hout du e process. S ee id.

Additionally, Justice Baldwin explained the U.S. Constitution’s fugitive slave clause.

See id. at 850-51.

Ju stice Baldwin ’s list of righ ts m ade it clear t hat each of the r ights, including the

Secon d Amendment right to arms, was a personal right, since the right belonged to

the plain tiff. Since J ohns on’s lawsu it wa s a gain st an em ployee of a s ub division of th e

Pen nsylva nia state government, Justice Baldwin’s listing of the Second Amendment

implied that Justice Baldwin considered the Secon d Am endm ent t o be a re striction

on state actions against individuals.

In 1837, Justice Baldwin wrote A General View of the Origin and Nature of the

Constitu tion of th e Un ited States. S ee HENRY BALDWIN, A GENERAL VIEW OF THE

ORIGIN AND NATURE OF THE CONSTITUTION OF THE UNITED STATES (N.Y., Da Capo

Press 1970) (1837). The book focused on the political status of the states and the

people, examining the transitions from colony to independent states to confederated

states to parties to the Constitut ional compact. The book did not address the Second

Amendment or the militia.

individuals, was widely quoted during the debates over slavery

and popu lar sovereignty.

287

Dred Scott, while never formally overru led, is not good law

today, having been deliberately invalidated by sect ion one of

the Fourteenth Amendment. The purpose in discussing Dred

Scott is not to cite it as binding precedent, but to acknowledge it

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1439

288. Tom G. Palmer, Are Pa ten ts a n d Co py ri gh ts M or al ly J u st if ie d? T h e

Philosophy of Propert y R igh ts an d I deal Ob jects, 13 HARV. J.L. & PUB. POL’Y 817, 821

(1990).

289. See, e.g., LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY JUR Y (1852);

LYSANDER SPOONER, THE LAW OF INTELLECTU AL PROPERTY: OR AN ESSAY ON THE RIGHT

OF AUTHORS AND INVE NTO RS TO A PERPETUAL PROPERTY IN THEIR IDEAS (1855).

290. Jules Lobel, Losers, Fools & Prophets: Ju stice as Struggle, 80 CORNELL L.

REV. 1331, 1 359 (199 5).

291. See Tom G. Palmer, Book Review, The Lysan der S poon er R ead er (visited

Jan. 16, 1998) <http://www.laissezfaire.org/pl5578.htm l>.

292. C. Shively, In trod uction to 4 LYSANDER SPOONER, COLLECTED WORKS 11

(1971). But see ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDI CIAL

PROCESS 156-58 (1975) (arguing that Spooner did not r eally intend to prove tha t

as one of several nineteenth-century Supreme Court cases

involving the right to arms—all of which, as we shall see, treat

the Second Amendment as an individual right.

B. The Human Rights Advocates

Antislavery activists deplored Dred Scott, but they agreed

with Chief Justice Taney that owning and carrying guns was a

badge and incident of freedom and was inconsistent with status

as a slave. The abolitionists used this theory, however, to reach

a conclusion opposite to Taney’s. Their basic argument was that

the institution of slavery, which prevented certain people from

bearing arms, was r epugnant to the Second Am endm ent, wh ich

guaranteed the right to bear arms to all persons. The argument

thus illustrates the popularly held belief that the Second

Amendment guaranteed a personal right.

1. Lysander Spooner

“Lysander Spooner was surely one of the most rema rkable

Amer ican men of letters of the Nineteenth Century.”

288

wrote important books an d pamphlet s on scores of subjects,

from intellectual property to the right to jury trial.

289

But his

greatest passion was antislavery. “[O]ne of the most prominent

radical theorists”

290

of th e antebellum era, Lysander Spooner

was a hero to many antislaver y activist s, including J ohn

Brown, whose raid on Harper’s Ferr y was inspired by reading

Spooner.

291

Spooner’s prewar writing remained influential after

the Civil War, making Spooner “pre-eminent in the group of

abolitionists who developed the constitutional law now

incorporated in the Fourteenth Amendment.”

292

He remains a

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1440 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

slavery was un constitut ional, and that he sought instead to convince abolitionists to

seek out jud ges hips, so t ha t t he y cou ld fr ee sla ves ).

293. Spooner distributed many of his works thr ough an alterna tive mail system,

sin ce ma ny pr osla ver y pos tm as te rs refus ed t o car ry antislavery literature. Spooner’s

Ame ri can Mail Company was cheaper than the United States Post Office, which led

the Post Office to lower its rates, and Congress to pass “Spooner Acts,” forbidding

competiti on with the governmen t postal monopoly. See Dmit ry N. Feofanov, Luna

Law: The Libertarian Vision in Heinlein’s The Moon is a Ha rsh Mistress, 63 TENN.

L. REV. 71, 133 (1995). Spooner is one of th e fat her s of cheap posta ge in America . See

Ernest A. Kehr et a l., Look Before You Lick, READER’S DIGEST, June 1947, a t 126.

294. “The compact which exists between the North a nd the South is a covenant

with death and an agreement with hell.” William Lloyd Garr ison, Resolu tion Ad opted

by the Antislavery Society, Jan. 27, 1843, available online at William Lloyd Garrison.

1804-1879. (visited Sept . 22, 19 98) <http://www.sol.com.sg/classroom/references/bartlett /

346.htm >; cf. Isaiah 28:15 (“We have made a covenan t with death, and with hell are

we at agre em en t.”).

295. David A. J. Rich ards, Abolitionist Political and Constitutional Theory and

the Reconstruction Amendments, 25 LOY. L.A. L. REV. 118 7, 1193 (199 2).

296. See HALBROOK, THAT EVER Y MAN BE ARMED, supra note 1, at 231 nn. 82-83.

For a modern analysis of the essay, see gener ally Ra ndy E . Bar net t, Was Slavery

Unconstitutional Before th e Th irteenth A m end m ent ?: Lysan der S pooner’s Th eory of

Interp retation , 28 PAC. L.J . 977 (199 7).

popular author among libertarians and other advocates of small

government.

293

In contrast to Willia m Lloyd Garrison and his Antislavery

Society, who denounced the Constitution as pr oslavery,

294

Spooner was “t he most theoretically profoun d a dvocat e” of th e

position that slavery was unconstitutional.

295

In the widely-

distributed and frequently reprinted book The

Unconstitutionality of Slavery, Spooner argued that the

Const itution should be interpreted according to principles of

natural justice.

296

His natural justice interpretation of the

Second Amendment explained:

This right “to keep and bear arms,” implies the right to use

them—as much as a provision securing to the people the right

to buy and keep food, would imply their right also to eat it. But

this implied right to use arm s, is on ly a righ t to use them in a

manner consistent with natural rights—as, for example, in

defence of life, liberty, chastity, &c. . . . If the court s could go

beyond the innocent and necessary meaning of the words, and

imply or infer from them an authority for anything contrary to

natural right, t hey cou ld imply a constitutional authority in

the people to u se a rm s, not m erely for t he just and innocent

purposes of defence, but also . . . robbery, or any other acts of

wrong to which arms are capable of being applied. The mere

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1441

297. LYSANDER SPOONER, THE UNCONSTITUTIONALITY OF SLAVERY 66 (Burt

Franklin 1965) (1860). For reprinted selections, see Lysander Spooner, The

Unconstitutionality of Slavery, 28 PAC. L.J . 1015, 1022 (199 7).

298. S ee, e.g., ROSCOE POUND, THE DEVELOPMENT OF CONS TITU TION AL

GUARANTEES OF LIBERTY 91 (1957) (“In th e urban ind us tr ial societ y of t oday a general

right to bear efficient arms so as to be enabled to r esist oppression by the

government would mean that gangs could exercise an extra-legal r ule which would

defeat th e wh ole Bill of Righ ts.”). Alth ough Pou nd is sometimes cited by opponents

of the Sta ndard Model, Poun d’s point is not really tha t the Standard Model is wrong

as a m at te r of hist ory, but sim ply th at th e Secon d Am endment is n o longer a good

idea as a m att er of public policy. Pound’s view that th e Second Amendment could be

ignored if modern persons thought it was no longer a good idea is consistent with his

general view that legislation which once would have been clearly unconstitutional

could be con sider ed con st itu tion al in m oder n t imes, based on changed social needs.

See generally Roscoe Pound, Mech an ical J ur ispru den ce, 8 COLUM. L. REV. 605 (1908).

verbal implication would as much authorize the people to use

arms for unjust, as for just, purposes. But the legal im plica tion

gives only an authority for their innocent use.

297

Spooner obviously viewed the Second Amendment as a right

belonging to individuals. His exposition is an answer to

twentieth-century gun pr ohibition advocates who assert that an

individual right to arms constitutes a right protecting crimin als

who use weapons offensively.

298

Spooner used the Second Amendment to argue that slavery

was unconstitutional. Since a slave is a person who cannot

possess arms, and the Second Amendment guarantees that all

persons can possess arms, no person in the United States,

therefore, can be a slave. Similarly, the militia clause—Article

I, Section 8—gives Congress the power to have everyone armed.

He elaborated:

These pr ovisions obviously r ecogn ize t he n at ura l right of

all m en “to ke ep an d bear a rm s” for their personal defence;

and prohibit both Con gress and the Sta te govern m en ts from

infring ing th e r igh t of “the p eop le”—t hat is, of any of th e

people—to do so; and more esp ecially of any wh om Congress

have power to include in their militia. The right of a man “to

keep and bea r a rm s,” is a right palpably inconsistent with th e

idea of his being a slave. Yet the right is secured a s effectua lly

to those whom th e Sta tes presu me to call sla ves , as to a ny

whom the States condescend to acknowledge free.

Under th is provision an y m an has a r igh t eith er to give or

sell arm s to those persons whom the States call s la ve s; a nd

there is n o constitutional power, in either the national or State

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1442 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

299. SPOONER, supra note 297, at 98.

300. See U.S. CONST. ar t. IV, § 2, cl. 3 (“No Per son held to Ser vice or Labour in

one Stat e, u nder th e La ws t he reof, esca pin g into a not her, s ha ll, in Conseque nce of

any Law or Regulation therein, be discharged from such Service or Labour, but shall

be delivered up on Claim of the Party to whom such Service or Labou r m ay be d ue .”).

Spooner attacked this clause by claiming that since the clause did not specifically

ment ion slaves, the clause shou ld, consistent with natural justice, be rea d as a pplying

to indentured servants.

301. LYSANDER SPOONER, A DEFEN CE FOR FUGITIVE SLAVES 27 (1850). The

Fugitive Slave Act promoted widespread violence in the recapture of fugitive slaves,

in Nort her n wh ite vigilan te resist ance to the slave-hunter s an d to federal authorities,

and in th e u se of th e U .S. milit ar y aga inst th e vigila nt es. “In th ese fr igh tfu l

circumstances, blacks warned t heir fellows to keep firearms close at hand.” NELL

IRVIN PAINTER, SOJOURNE R TRUTH: A LIFE, A SYMBOL 133 (199 6).

governments, that can punish him for so doing; or that can

take those arms from the slaves; or that can make it criminal

for the sla ves to u se t hem, if, from t he inefficiency of th e laws,

it sh ould becom e n ecessa ry for them to d o so, in defence of

th eir own lives or lib erties; for t his constitu tion al right to keep

arms implies the constitutional right to use them, if need be,

for the defence of one’s liberty or life.

299

Twentieth century readers are not required to find

Spooner’s argument persuasive. Article IV, Section 2 of the

Const itution, requiring the retu rn of fugitive slaves, obviously

contemplated that persons in the United States could be

slaves.

300

Instead, the point for purposes of this article is that

Spooner saw the Second Amendment as guaranteeing an

individual right to own and u se guns for self-defense or defense

of others, and he used this fact in arguing against slavery.

Spooner made further use of the Second Amendment’s

individual right to arms in other arguments. Advocating the

right of fugitive slaves to use weapons to resist recapture,

Spooner wrote:

The cons tit ution contemplates no such submission, on the

part of the people, to the u su rp at ions of the governmen t, or to

the lawless violence of its officers. On the contrary it provides

that “The right of the people to keep and bear arms shall not

be infrin ged .” This cons tit ution al secu rit y for “the right to keep

and bear arms,” implies the right to use them . . . . The

constit ution , th erefore, ta kes it for gran ted tha t, as the peop le

have the right, they will also have the sense, to use arms,

wh enever the necessit y of th e case ju stifies it.

301

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1443

302. SPOONER, supra note 297, at 104.

303. LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY JURY 17 (1852 ).

304. LYSANDER SPOONER, ADDRESS OF THE FREE CONSTITUTIONALISTS TO THE

PEOPLE OF THE UNITED STATES 25 (2 d ed. 1860 ).

305. See JOEL TIFFANY, THE NEW YORK PRACTICE: A TREATISE UPON PRACTICE AND

PLEADINGS IN ACTIONS AND SPECIAL PROCEEDINGS (186 4-18 65); J OEL TIFFANY, THE LAW

OF TRUSTS AND TRUSTEES, AS ADMINISTERED IN ENGLAND IN AMERICA (1862).

306. RAOUL BERGER, GOVE RN ME NT BY JUDICIARY: THE TRANSFORMATION OF THE

FOURTEE NTH AMENDMENT 22 (1977); Raoul Berger, Bruce Ackerman on Interpretation:

A Critique, 1992 BYU L. REV. 1035, 1043 n.43 (1992) (reviewing BRUCE ACKE RMAN ,

WE THE PEOPLE : FOUNDATIONS (199 1)).

307. Trisha Olson, The Natural Law F oun da tion of th e Privil eges or Im m un iti es

Clause of th e Fou rteent h A m end m ent , 48 ARK. L. REV. 347, 373 n.109 (1995) (citing

various scholar s); see also WILLI AM M. WIECEK, THE SOURCES OF ANTISLAVERY

Similar ly, Spooner argued that unconstitutional laws need not

be obeyed pending their repeal; to require obedience to

unconstitutional laws would be to allow the government “to

disarm the people, suppress the freedom of speech and the

press, prohibit the use of suffra ge, an d thus put it beyond the

power of the people to reform the government through the

exercise of those rights.”

302

Thus, the right to arms provided one

of the ways in which people could rea sser t control over an

erring government.

In Spooner’s best seller, the 1852 An Essay on the Trial by

Jury, he used language drawn from the paragraph quoted

above to prove that the “right of resistance is recognized by t he

constitution of the United States.”

303

In the 1860 Address of the

Free Constitutionalists, Spooner again made the argument that

“the right to keep and bear arms implies the right to use them,

and, therefore, this is an inherent right of people to resist

criminal assaults when the government fails to provide

protection.”

304

2. Joel Tiffany

Joel Tiffany made his living as the reporter for the New

York Court of Appeals, as an author of legal treatises,

305

and as

publisher of Tiffany’s Monthly magazine. But like Lysander

Spooner, he was consumed with the antislavery cause.

Lysander Spooner and Joel Tiffany were “the ‘principal

spokesmen’ and theorist s of the abolitionist movement.”

306

“Spooner’s and Tiffany’s importance is recognized by nearly

all.”

307

The Spooner and Tiffany theory that the Constitution

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1444 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

CONSTITUTIONALISM IN AMERICA, 1760-1848, at 269 (1977); Micha el Kent Cu rtis, The

Bill of R igh ts as a Lim ita tion on S tate A ut hority : A R eply to Professor B erger, 16

WAKE FOREST L. REV. 45, 55 (1 980 ); John Choon Yoo, Our Declaratory Ninth

Amendment, 42 EMORY L.J . 967, 1000 (1993) (“Influential abolitionist writers such as

Lysander Spooner an d J oel T iffany . . . .”).

308. David S. Bogen, The Tran sform ation of th e Fourteent h A m end m ent :

Reflection s from the Admission of Maryland’s First Black Lawyers, 44 MD. L. REV.

939, 964 (198 5).

309. JOEL TIFFANY, A TREATISE ON THE UNCONSTITUTIONALITY OF AME RICAN

SLAVERY 117-18 (1849).

guaranteed certain rights to all citizens “marked out a path for

using the doctr ines of substantive du e process and of the

natural law privileges and immunities of citizenship to further

minority freedom.”

308

Like Spooner, Tiffany argued that the Second Amendment’s

guarantee of a right to arms applied to all persons, and since an

armed man could not be a slave, slavery was unconstitutional.

Here is another of the immunities of a citizen of the United

States, which is guaranteed by the su prem e, organ ic law of th e

land. This is one of the su bordinate rights, mentioned by

Bla ckston e, as belonging to every Englishman. It is called

“subordinate” in reference to the great, absolu te righ ts of man;

and is accorded to ever y subje ct for th e p urpos e of protecting

and defending h im self, if need be, in the enjoymen t of his

absolute rights to life, liberty and property. And this guaranty

is to all without any exception; for there is none, either

expressed or im plied. An d ou r cou rt s have already decided,

that in such cases we have no right to make any exceptions. It

is har dly n ecessar y to rem ar k t ha t t his guar an ty is absolutely

inconsistent with permitting a portion of our citizens to be

enslaved. The colored citizen, under our constitution, has now

as full and perfect a right to keep and bear arms as any other;

and no State law, or State regulation has authority to deprive

him of that right.

But ther e is a nother thin g im plied in this gu aranty; a nd

that is the right of self defence. For the right to keep and bear

arm s, also implies the right to use them if necessa ry in self

defence; without this right to use the gu aran ty would ha ve

hardly been worth the paper it consumed.

309

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1445

C. Bloody Kansas

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1446 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

310. Invented in 1848, the Sh arps could fire five rounds a m inute; it rapidly

displaced muzzle-loading guns and was especially popular in the West. John Brown’s

raiders carr ied the Sha rps carbine (a type of short rifle). See HAROLD F. WILLIAMSON,

WINCHESTER: THE GUN THAT WON THE WEST 5 (19 52).

311. See JAY MONAG HAN, CIVIL WAR ON THE WESTERN BORDER 1854-1865 (1955).

Although th e a boliti on movem en t h ad a s tr ong st ra in of non-resistance and pacifism,

the “Beecher Bibles” were widely approved. For example, Wendell Ph illips sa id, “I

believe the age of bullets is over. I believe the age of ideas is come . . . . Yet, let me

say, in passing, tha t I t hink you can make a bett er use of iron than forging it in to

chains. If yo u m u st h a ve m et a l, pu t it in t o S h ar pe ’s [s ic ] r ifle s.” L AWRENCE J.

FRIE DMAN , GREGARIOUS SAINTS: SELF AND COMMUNITY IN AMERICAN ABOLITIONISM,

1830-1870, at 210 (1982) (omission in original).

Just as the civil war in Spain served as a prelude to World

War II, civil war broke out in the Territory of Kansas several

years before the American Civil War . Following the 1854

Kansas-Nebraska Act, proslavery and antislavery settlers

rushed in to take control of the territory and win the vote on

whether Kan sas would join the Union as slave or free. Th e pro-

slave forces, with hea vy support from “Border Ruffians” in

Missouri, stuffed ballot boxes, violently drove free soilers away

from the polls in 1855, and expelled all slavery opponents from

the territorial legislature.

The free-soil settlers asked for guns for themselves, and the

Massachusetts Emigrant Aid Company prompt ly began

smuggling Sharps Rifles t o Kansas. (The Company falsely

claimed that while some of its members might be sending rifles,

the armament program was not officially run by the Compan y.)

The Sharps were high-tech rifles, incorpor ating the new br eech

loading design (as opposed to loading from the muzzle).

310

The

rifles did their job and rapidly evened the balance of power in

Kansas. The proslavery government, however, attempted, with

some success, to disarm various armed groups of free-soil

men.

311

On May 19, 1856, Massachusetts Senator Charles

Sumner—an antislavery radical—rose to deliver what would

become one of the most famous orations ever delivered on the

floor of the United Stat es Senate. Sumner’s speech, “The Crime

against Kansas,” continued until t he twentiet h of Ma y. South

Carolina Senator A.P. Butler had allegedly remarked that the

people of Kansas should be disarmed of their Sharps rifles.

Sumner thundered:

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1447

312. CHARLES SUMNER, THE KANSAS QUESTION. SENATOR SUMNER’S SPEECH ,

REVIEWING THE ACTION OF THE FEDERAL ADMINISTRATION UPON THE SUBJECT OF

SLAVERY IN KANSAS 22-23 (Cin cinna ti, G. S . Bla nch ar d, 1856) (repr inting speech

delivered on the floor of th e Sen at e, May 19-20, 1856), also available online at

<htt p://m oa.um dl.u mich.

edu/cgi-bin/moa/sgml/moa-idx?notisid=ABT6369>.

313. The speech (incl ud ing Bu tl er ’s len gthy qu ota tion of Su mn er ) was reprinted

for general circula tion. See ANDREW PICKINS BUTLER, SPEECH OF HON. A. P. BUTLER,

OF SOUTH CAROLINA, ON THE BILL TO ENABLE THE PEOPLE OF KANSAS TERRITORY TO

FORM A CONSTITUTION AND STATE GOVERNMENT, PREPARATORY TO THEIR ADMISSION

INTO THE UNION, ETC. 24 (Washington, D.C., Union Office 1856), also available online

<http://moa.umdl.u mich.edu/cgi-bin/moa/sgm l/ moa-idx?notisid=AJA3511>.

South Carolina Representative Preston Brooks, Butler’s nephew, was so infuriated

by Sumner’s atta cks on Brooks (such as the claim that while Brooks “believes himself

a chivalrous kn ight, with sentiments of honor and courage,” he “has chosen a

mistress” who is “th e h ar lot s laver y”) that he bea t S um ner on the head with a heavy

cane until the cane broke, incapacitating Sumner for four years.

Really, sir, ha s it come to this? The rifle has ever been the

com pa n ion of the pioneer and, under God, his tutelary

protector aga inst th e r ed m an and t he bea st of th e forest.

Never was this efficient weapon more neede d in just self-

defence, than now in Kansas, and at least one article in our

National Constitution must be blotted out, before the complete

right to it can in any way be impeached. And yet such is the

madness of the hour, that, in defiance of the solemn guaranty,

embodied in the Amendments to the Constitution, that “the

right of the people to keep and bear arms shall not be

infringed,” the people of Kan sa s h ave be en ar ra ign ed for

keeping and bearing them, and the Senator from South

Carolina has had the face to sa y open ly, on th is floor, that they

should be disar med—of cours e, that th e fanat ics of Sla ver y, his

allies and cons tit uen ts, may meet n o impedim en t. Sir, t he

Senator is venerable . . . but n either h is yea rs , nor h is posit ion,

past or presen t, can give respecta bility to the demand he has

made, or save him from indignant condemnation, when, to

compass the wretched purposes of a wretched cause, he thus

proposes to trample on one of the plainest provision s of

constitutional liberty.

312

Senator Butler indignantly replied that he had never proposed

disarming the people of Kansas. He had simply proposed

bringing before appropriate judicial authority “an organized

body” who possessed Sharps rifles.

313

But even if Senator Butler could claim that his remarks

were misunderstood, antislavery Congressmen had no doubt

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1448 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

314. G.A. Grow, Adm ission of Kansas, J un e 30, 1856, reprinted in POLIT ICAL

SPEECHES, PARTLY IN THE HOUSE AND SENATE, DEALING MAINLY WITH KANSAS AND

SLAVERY 7 (Wash ingt on 1855), also av ail able online <ht tp://moa.u mdl.umich.ed u/cgi-

bin/moa/sgml/moa-idx?notisid=ABT6364>.

315. Reprinted in EVERETT CHAMBERLIN, THE STRUGGLE OF ‘72. THE ISSU ES AND

CANDIDATES OF THE PRESENT POLITICAL CAMPAIGN 23 (San Francisco, Union Publ.

187 2), also available online <htt p://moa.u md l.umich.e du/cgi-bin /moa /sgm l/moa-

idx?notisid=AEW6886>.

316. See GUNJA SENGUPTA , FOR GOD AND MAMMON: EVANGELICALS AND

ENTREPREN EURS, MASTERS AND SLAVES IN TERRITORIAL KANSAS , 1854-1860, at 105-11

(1996).

about the atrocities being perpetrated in Kansas.

Representative G.A. Grow of Pennsylvania, for example, gave a

litany of constitutional abuses perpetrated by the proslavery

government in Kansas, including: “With the shout of law and

order you disarm the citizen, while the Constitution of his

country declares that the right ‘to keep and bear arms shall not

be infringed.’”

314

The 1856 national Republican Convention resolved that “the

dearest cons titutional righ ts of the people of Kansas have been

fraudulently and violently taken from them . . . the rights of the

people to keep and bear arm s have been infringed.”

315

The federal governm ent, obviously, had done nothing to

interfere with the official militia of the proslavery government

in Kansa s. Yet the Republicans s till sa w a viola tion of the

Second Amendment: some of the state’s citizens were being

disarmed because they considered the current state government

illegitimate. Indeed, the event that had precipitated Repu blican

Sumner’s speech was the “Sack of Lawr ence,” in which the

Kansas territorial militia, bearing arms supplied by the United

States government and under the command of a deputy federal

marshal, confiscated the guns of a group of free-soilers.

316

The

Republicans, seeing their constituents disarmed, invoked the

Second Amendmen t. However, soon the Democrats would

invoke the Second Amendment to protest the disarmament of

citizens who did not belong to active state m ilitias.

D. The Civil War

During the Civil War, President Lincoln ordered many

suppressions of civil liberties. His suspension of habeas corpus

in states which were not in rebellion against the Union,

through which he imprisoned newspaper editors and other

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1449

317. S ee, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). See generally MARK

E. NE ELY, JR., THE FATE OF LIBERTY: ABRAHA M LINCOLN AND CIVIL LIBERTIES (1991)

(dealing exclusively with habeas corpus iss ue s a nd defen din g Lincoln ’s act ions).

318. See 3 WAR OF THE REBELLION, ser. 1, 467 (Frémont’s Declaration of Martial

Law, Aug. 30, 1861), quoted in HALBROOK, THAT EVER Y MAN BE ARMED, supra note

1, at 233 n.96. Frémont , of cour se, had been the 1856 Republican Presidential

candidate and had run on a plat form den oun cing th e pr osla ver y govern me nt of

Kansas for the sam e th ing he was now doing.

319. 13 id. at 506, quoted in HALBROOK, THAT EVERY MAN BE ARMED, supra note

1, at 233. In defense of Lincoln’s actions against people living in Confederate states,

William Whiting list ed var ious ind ividua l ri ghts protecte d by t he Constitu tion an d

then showed that they could not be applicable in time of war; otherwise, th e army

would not be able to kill enemy soldiers without due process. Similarly, “[i]f all men

have the right to ‘keep and bear arms’ what right has the army of the Union to take

them aw ay from r ebe ls?” H e con cluded t ha t t he Bill of Rights “[was ] inte nd ed as [a]

declara tion[] of the rights of peaceful an d loyal citizens,” and ther efore inapplicable

to th e Sout her n r ebels. WILLIAM WHITING, THE WAR POWERS OF THE PRESIDENT AND

THE LEGISLATIVE POWERS OF CONGRESS IN RELATION TO REBELLION, TREASON, AND

SLAVERY 49-51 (Boston , J .L S hore y 1862) available at <http://moa.u mdl.u mich.edu/cgi-

bin/moa/sgml/moa-idx?notisid=AEW5618>. Whit ing ser ved as a lead ing at tor ney for

the War Department; un der a modified tit le, this pam phlet was reprinted 43 t imes

over th e next eigh t yea rs. See Richard J . Pu rcell, William Whiting, in DICT. AM. BIO.,

supra note 90.

320. T.W. MCMAHON, CAUSE AND CONTRAST: THE AMERICAN CRISIS, excerpted in

32 DEBOW’S REVIEW, AGRIC ULT URAL , COMM ERC IAL, INDUSTRI AL PROGRESS AND

RESOURCES 317 (1862), available online at <http://moa.u mdl.umich.edu/cgi-

bin/moa/sgml/moa-idx?notisid=

ACG1336-1315DEBO-31>.

persons who criticized the war, is the most famous.

317

Less well

known are the Union government’s confiscations of firearms.

Although Maryland and Missouri never seceded, both states

had significant pockets of Confederate sympathizers. In

Missouri, Union General John C. Frémont issued an order

declaring that all persons in a certain area found in possession

of arms would be shot.

318

Later, General Marsh ordered a

general confiscation of all arms and ammunition, “not in the

hands of the loyal militia” and the transfer of all such arms and

ammunition to the militia.

319

Confederates made sure that

Lincoln’s actions were publicized in the South; as on e book put

it: “The right of th e people to keep and bear arms shall not be

infringed, says the constitution; but upon this privilege he has

trampled in Maryland, Missouri and Kentucky.”

320

The 1864 Dem ocratic Convention denounced Lincoln’s

suppression of civil liberties, condemning “the subversion of th e

civil by military law in States not in insurrection; the arbitrary

military arrests . . .; the suppression of freedom of speech and of

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1450 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

321. E. POLLARD, THE LOST CAUSE 574 (1867), quoted in HALBROOK, THAT EVERY

MAN BE ARMED, supra note 1, at 233 n.96.

322. C. CHAUNCEY BURR, NOTES ON THE CONSTITUTION OF THE UNITED STATES

(N.Y., J. F. Feeks 1864). Bu rr als o foun ded a monthly journal, The Old Guard , and

sometimes wrote for a N ew York n ewspaper, The Day Book or Caucasian. Few

Northerners sur passed Bu rr’s strong opposition to Lincoln’s policies. See NEELY, supra

note 317, at 57.

323. U.S. CONST. art . I, § 8, cl. 15.

324. BURR, supra note 322, at 30-31.

325. See U.S. CONST. art . I, § 8, cl. 16.

326. BURR, supra note 322, at 34.

the press; . . . and the interference with and denial of the right

of the people to bear arms in their defence.”

321

Also in 1864, one of Lincoln’s strongest northern Democrat

critics, C. Chauncey Burr, authored Notes on the Constitution of

the United States.

322

The book analyzed the Constitution clause

by clause, adding commentary intended to show that President

Lincoln was viola ting the Constitution. Regarding federal

militia powers, Burr noted that the Constitution provided that

the militia could be called into federal service for three

purposes only: “to execu te the Laws of the Union, suppress

Insurrections, and repel Invasions.”

323

Burr contended that the

militia was being used improperly in the Civil War because the

war was not being fought to execute the laws of the Union, but

to abolish slavery and to subjugate the South. There was no

insurrection since state governments (as opposed to individuals

within a state) could not commit insurrection: state

governments “ar e not subjects. They are sovereign bodies.”

324

And obviously, there was no foreign power invading the United

States.

In discussing the next clause of the Constitution (granting

Congress authority over militia training standards and

discipline, while reserving to states the appointment of militia

officers and supervision of militia training),

325

Burr commented,

“The militia is strictly a State institution. . . . The object of this

provision is to preserve the State character of the militia—to

keep it as representative of State sovereignty, even while it is

but for a specified service under the direction of the United

States.”

326

This would have been the perfect time to criticize

Lincoln for violating the Second Amendment had Burr thought

that the Amendment protected state militia from federal

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1451

327. Id. at 80.

328. Id. Here, Bur r accused the Lincoln government of the same act perpetrated

more than a century later by the Chicago Housin g Auth ority, with the encouragement

of th e Clint on a dm inist ra tion . See Pra tt v. Chicago Hous. Auth ., 848 F. Supp. 792

(N.D. Ill. 1 994) (h oldin g th at police swe eps of public h ous ing in or der to confiscate

firearms wa s u ncons titu tional).

329. See Amar, Th e Bil l of R igh ts a s a C ons titut ion, supra note 1, at 1171-73.

330. BURR, supr a note 322, at 81. Rep. Samuel Sullivan Cox made the same

argument on Feb. 26, 1863, in opposition to the Lincoln administration’s Conscript ion

Bill. Cox relied mainly upon t he m ilitia clauses and Just ice Story, bu t also cited the

Secon d Amendment . See SAMUEL SULLIVAN C OX, EIGHT YEARS IN CONGRESS, FROM

1857 TO 1865, at 313 (New York, D. Appleton & Co. 1865), als o availabl e online

<http://moa.

umdl.umich.edu/cgi-bin/moa/sgml/moa-idx?notisid=ACP4141>.

331. BURR, supra note 322, at 80.

interference. But the Secon d Am endm en t was a bsen t from

Burr’s criticism.

Instead, the Second Amendment discussion came much

later. Burr quoted J ustice Story at length on how tyrants

“accomplish their purposes . . . by disarming the people.”

327

“The present administration,” cha rged Burr, “has violated this

article of the Constitution in every particular. It has, in a great

many instances, disarmed the people by forcibly entering their

houses and seizing their arms of every description.”

328

Burr also

complained that the Lincoln administration had “substituted

United States soldiery for militia” and had imposed de facto

martial law by stationing regular troops in New York City.

And, as Akhil Amar would argue many years later,

329

Burr

wrote that federal conscription for a standing army violated the

Second Amendment, since conscription “tends to annihilate” the

ranks of the state militias.

330

To Burr, Lincoln’s firearm confiscations apparently violated

the main clause of the Second Amendment (“the right of the

People”), while Lincoln’s reliance on a conscripted standing

army at the expen se of the militia viola ted the in trodu ctory

clause (“A well-regu lated militia, being necessary to the

security of a free St ate”), wh ich is why Lincoln’s policies could

be said to violate the Second Amendment “in every

particular.”

331

Whether Lincoln’s policies were right or wrong is not the

subject of this article. The objections of the Democratic

Conven tion and Burr to Lincoln’s actions reflected the belief

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1452 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

332. For the discussion of the Fourteenth Amendment and the sta tutes which led

up to it , th e aut hor is deeply in deb te d to Steph en Ha lbr ook.

333. H.R. EXEC . DOC. NO. 70, at 233 , 236 (1866).

that the Second Amendment guaranteed the right of

individuals to bear arms.

V. RECONSTRUCTION AND LABOR UNREST

A. Congress, Civil Righ ts, and th e Fourteenth Am endm ent

After the Union victory in the Civil War, Congress debated

and pa ss ed various m easu res, such as t he Civil Rights Act and

the Fourt eenth Amendment, designed to protect the civil rights

of freedmen. During this period, the Second Amendment was

mentioned many times in Congressional testimony, in reports

to Congress, in Committee reports, and in floor debates.

332

These statements treated the Second Amendment as an

individual right. Record s of Congress from this era are replete

with references to the “right” to arms, but since this article is

about the Second Amendment, and not about the state

constitutional or natural right to arms, this article quotes only

those st atem en ts t hat specifically refer to the Secon d

Amendment.

1. The Freedmen’s Bureau

The Freedm en’s Burea u reported to Congress on the

numerous abuses of civil r igh ts t aking place in the defeated

Southern states. For example, in Kentucky, “[t]he civil law

prohibits the colored man from bearing arms . . . . Their arms

are taken from them by the civil authorities . . . . Thus, the

right of the people t o keep and bear arms as provided in the

Const itution is infringed . . . .”

333

Sim ila rly, General Ru fus

Saxton, the former assistant commissioner of the Freedmen’s

Burea u in Sou th Carolin a, provided Congress with evidence

that in some parts of th is Sta te ar med pa rt ies ar e, with out

proper authority, engaged in seizin g all fire-arm s foun d in th e

hands of th e freedm en . Su ch condu ct is in pla in and direct

violation of their personal rights as gua ranteed by the

Con stitu tion of the United States, which declares that “the

right of the people to keep and bear arms shall not be

infringed.” The freedmen of South Carolina ha ve shown by

their peacefu l and or derly condu ct t hat t hey ca n safely be

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1453

334. REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION, H.R. REP. NO. 39-30,

pt. 2, a t 2 29 (1 866).

335. See Ha lbrook, Personal Security, supra note 1, at 353-54, 363, 384-88, 396-

97, 401-02, 405-08, 414-15, 418, 424.

Related to the complaints about disarmament were complaints about Southern

governments’ tolera nt attitude a bout white violence against blacks. Virginia attorney

George Tucker (ye s, on e of the descen dant s of Hen ry St. George Tucker) testified

about the need for Congressiona l action t o protect blacks a gainst such abuses of the

unreconstructed gover nm en ts : “Th ey h ave not an y ide a of prosecutin g wh ite me n for

offenses a ga in st col or ed pe op le ; t h ey do n ot a pp rec ia t e t h e i de a .” McCleskey v. Kemp,

481 U.S. 279, 347 n.2 (1987) (quotin g H.R.J . COMM. REP. NO. 39-30, pt. 2, at 25

(1866)).

336. CONG. GLOBE, 39t h C ong., 1st Se ss. 371 (18 66).

337. Id. at 585.

trusted with fire-arm s, and they need them to k ill ga m e for

subsistence, and to protect their crops from destruction by

birds and animals.

334

Throughout Reconstruction, many witnesses and special

committees complained that unreconstructed governments and

terrorist organizations, such as the Ku Klux Klan, were

violating the Second Amendment rights of freedmen by

disarming them.

335

To address the civil rights viola tions, Congress t ook u p

Senate Bill 60, a bill to expand the powers of the Freedmen’s

Bureau. During debate over the bill, Kentucky Democratic

Senator Garret Davis emphasized that a shared commitment to

civil liberty united Americans more than party factionalism

divided them:

But there were some principles upon which those great, grand,

noble old parties agreed; and what were they? . . . They were

for every man bearing his arm s about him and keeping them

in his house, his castle, for his own defense. They were for

every right an d liberty secured to the citizen by the

Constitution.

336

In the House, Massachusetts Congressman Nathaniel

Banks announced his plans to offer a n amen dment to the bill

“inserting after the word ‘including’ the words ‘the

constitutional right to bear arms;’ so that it will read, ‘including

the constitutional right to bear arms, the right to make and

enforce contracts, to sue.’”

337

As passed by Congress, the final

bill reflected Banks’s desire for a specific r ecognition of th e

individual right to arms:

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1454 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

338. Act of J ul y 16, 1866, 14 S ta t. 173 , 176-77 (186 6).

339. 14 St at . 17 3, 176 (1866 ).

340. CONG. GLOBE, 39t h C ong., 1 st Sess. 1073 (1 866 ).

341. Id. at 1168.

That in every State or distr ict wh ere the or din ar y course of

judicial proceedings has been interr upt ed by t he r ebe llion, an d

until the sam e sha ll be fully restored . . . the right to make and

enforce contracts . . . and to ha ve full an d equa l ben efit of all

laws and proceedin gs concerning personal liberty, personal

security, and the acqu isit ion, en joym en t, a nd disposit ion of

estate, real a nd per sonal, including the constitutional right to

bear arms, shall be secured to an d enjoyed by a ll th e citizen s of

such State or district without r espect t o ra ce or color, or

previous condition of slavery.

338

President J ohnson vet oed the bill. Con gress, however , came

back with the Second Freedmen’s Bureau Bill, which it passed

over President Johnson’s veto. Section 14 of that Second Bill

contained the same language as that quoted above, protecting

“the constitutional right to bear arms.”

339

2. Southern representation in Congress

In early 1866, Congress took up the question of whether the

defeated states should be allowed representation in Congress.

During the debate, Nevada Senator James W. Nye stated that

“[a]s citizens of the United States [freedmen] have equal right

to protection, and to keep and bear arms for self-defense. They

have long cherished the idea of liberty . . . .”

340

In support of Southern represen tation, Illin ois

Representative Anthony Thornton suggested that once the war

had ended, all constitutional rights were immediately restored.

In support of this theory, he argued:

In all of the northern States, du rin g th e war , th e privilege of

the writ of habeas corpus wa s susp en ded; freedom of speech

was denied; the freedom of the press was abridged; the right to

bear arms was infringed . . . . Our rights were not thereby

destroyed. Th ey are in her en t. Upon a re voca tion of th e

proclamation, and a cessation of th e sta te of th ings w hich

prompted these arbitrary measures, the Con st itu tion and laws

woke from their lethargy, and again became our shield and

safeguard.

341

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1455

342. Id. at 1266.

343. THE RECONSTRUCTION AMENDME NTS’ DEBATES 193 (Alfr ed Avin s ed., 196 7).

344. CONG. GLOBE, 39t h C ong., 1 st Sess. 1838 (1 866 ).

Thus, Senator Nye and Representative Thornton viewed the

Second Amendment right to arms as a personal right, similar to

the other rights in the first eight amendments.

3. Civil Rights Bill

Rep. Henry Raymond (R-N.Y.) served on the J oint

Committee on Reconstruction and as an editor of the New York

Times. He stated in support of the Civil Rights Bill: “Make the

colored man a citizen of the United States and he has every

right which you or I have as citizens of the United States under

the laws and Constitution of the United States . . . a right to

defend himself and his wife and children; a right to bear

arms . . . .”

342

Another New York Republican, Roswell Hart,

argued that the Constitution required states to maintain a

republican form of government, which meant, inter alia, a

government “where ‘the right of the people t o keep and bear

arms shall not be infringed;’ . . . . Have these rebellious States

such a form of government? If they have not, it is the duty of

the United States to guaranty that they have it speedily.”

343

the Second Amendment only protected state governments

against the federal government, then Rep. Hart’s statement

that the Second Amendment must be obeyed by state

governments would make no sense.

Rep. Sidney Clarke of Kansas agreed with the New Yorkers:

[I] find in th e Con stitu tion of the U nit ed S ta tes an a rticle

which declares that “the right of the people to keep and bear

arms sh all not be in frin ged .” For m yself, I shall insist that the

reconstructed rebels of Mississipp i respect the Constitu tion in

th eir local laws . . . .

344

4. Anti-KKK Act

The frequen tly-invoked feder al civil righ ts statutes, wh ich

allow criminal and civil prosecution of state officials who violate

federal civil r ig ht s, w ere cr ea t ed by t he “An t i-KKK Act .” T h e

Committee Repor t on the Act explained, “in many counties they

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1456 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

345. H.R. REP. NO. 41-3 7, a t 3 (1871).

346. Id. at 7.

347. CONG. GLOBE, 42d Con g., 1 st Sess . 337 (1871).

have preceded their outrages upon him [the freedman] by

disarming him, in viola tion of his right as a citizen to ‘keep and

bear arms,’ which the Constitution expressly says shall never

be infringed.”

345

Rep. Benjamin Butler (R-Mass.) elaborated:

Section eigh t is intended t o en force the well-known

constitutional provision guaranteeing the right of the citizen to

“keep and bear arm s,” and provides that whoever shall take

away, by for ce or violen ce, or by threats and intimidation, the

arms and weapons which any person may h ave for his defense,

shall be deemed guilty of larceny of the same.

346

Tennessee Democrat Washington C. Whitthorne objected

that the lawsuit provision of the anti-KKK act (allowing

lawsuits for deprivation of constitutional rights) would allow a

New York police officer who disarmed a drunk to be sued,

“because the right to bear arms is secured by the

Constitut ion.”

347

5. Fou rteenth Am endm ent

When deba te on the Fourteenth Amendm en t began, some

members of Congress argued that the Thirteenth Amendment

already gave Congress sufficient power to address Southern

laws which prevented the ex-slaves from enjoying the status of

free men. Supporting this position, Kansas Senator Samuel

Pomeroy asked:

And what are the safegu ar ds of liber ty under ou r for m of

Government? There are at least, under our Constitution, three

which are indispensable—

1. Every man should have a homestead, that is, the right

to acquire and hold one, and the right to be safe and protected

in th at cita del of his love. . . .

2. He should ha ve the right to bear arms for the defense of

him self and family and his homestead. And if th e ca bin door of

the freedman is broken open and the intruder enters for

purposes as vile as were known t o slavery, th en should a w ell-

loaded musket be in the hand of the occupant to send the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1457

348. CONG. GLOBE, 39t h C ong., 1st Sess. 1182 (1 866 ).

349. Amar, The Bill of Rights as a Constit ut ion, supra note 1, at 1167 (quoting

CONG. GLOBE, 39th Cong., 1st Sess. 2766 (1866)). Senator Howard had “a wide

reading kn owled ge n ot on ly of law and his tor y, bu t a lso of liter atur e.” James O.

Knauss, Jacob Merritt Howard, in DICT. AM. BIO., supra note 90.

350. ERIC FONER, RECONSTRUCTION 258-59 (1988).

351. CONG. GLOBE, 42d Con g., 1 st Sess . app. at 8 4 (1871).

352. Id.

polluted w re tch to another world, wh ere his wr etchedn ess will

forever rem ain com plet e; a nd

3. H e sh ould h ave the ba llot . . . .

348

Congressmen expressed t heir intention to remedy the

deprivation of Second Amendment rights through corrective

statutes, and eventually through the Fourteenth Amendment.

For example:

Senator Howa rd . . . explicitly invoked “the right to keep and

bear arms” in his important speech cat alogu ing the “personal

rights” to be protected by the Fourteenth Amendment. Howard

and others may ha ve been influ en ced by th e ant ebellum

constitutional commentator William Rawle, who had argued in

his 1825 tr ea tis e t hat t he Second Amendm ent as written

limited both st at e a nd federa l govern men t . . . .

349

As Eric Foner observes,

[I]t is abundan tly clear that th e Repu blicans wish ed to give

constit ution al sa nction to sta te s’ obliga tion to respect such key

pr ovisions as freedom of speech, the right to bear arms, trial

by impartial jury . . . . The Freedman’s Bureau had already

taken steps to protect these rights, and the Amendment was

deemed necessary, in part, pr ecisely because every one of them

was being systematically violated in the South in 1866.

350

After the Amendm en t had been ratified, its Congressional

sponsors explained its meaning in relation to other legislation.

For example, J onathan Bin gham (R-Ohio), discussing section 1

of the Fourteenth Amendment, stated “that the privileges and

immunities of citizens of the United States, . . . are chiefly

defined in the first eight amendments to the Const itution of th e

United Stat es.”

351

After listing the amendments, Bingham

explained: “These eight articles I have shown never were

limitations upon the power of the States, until ma de so by the

fourteenth amendment.”

352

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1458 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

353. Id. at 475.

354. CONG. GLOBE, 42d Con g., 2 d Sess. a pp. a t 26 (18 72).

355. CONG. REC., 43d Con g., 1st Se ss. app. at 2 41-4 2 (1874).

356. Id. at 302; see also Let ters from th e Federal Far m er XVIII, in 2 THE

COMPLETE ANTI-FEDE RALIST 341 (1981) (“A militia, wh en pr operly forme d, a re in fact

the people t hem selves . . . and include . . . a ll m en cap ab le of bea ri ng ar ms . . . .”);

George Ma son , Vir gin ia Ra tifyin g Con ven ti on of June 16, 1788, reprinted in ORIGIN,

supra note 37, at 430 (“Who are the Militia? They consist now of the whole

people . . . .”).

357. The only known nin eteenth cent ur y inv ocation of the Second Amendment

as a meaningful state’s right occurred dur ing a floor speech by Delaware Democrat

Willard Saulsbur y, as he indicated that violation of the Second Amendment would

mean the disarmament of the ent ire population. Objecting to the proposed S.R. 32,

to disband most Southern stat es’ militias, Saulsbury said:

Rep. Henry Dawes (R-Mass.) agreed with Bingham that the

Fourteenth Amendment “privileges” incorporated the first eight

amendments against states, so a citizen “had secured to him

the right to keep and bear arms in his defense.”

353

Later,

Senator Allen G. Thurman (D-Ohio) agreed that the “rights,

privileges, and immunities of a citizen of the United States”

included all the rights secured by the first eight amendments,

which he described in order, in cluding the r igh t to bear arms:

“Here is another right of a citizen of the United States,

expressly declared to be his right—the right to bear arms; and

this right, says the Constitution, shall not be infringed.”

354

6. The Civil Rights Act of 1875

Georgia Democrat Thomas M. Norwood stated that U.S.

citizens living in territories en joyed “the privileges and

immunities of a citizen of the United States” including “[t]he

right . . . of peacable [sic] a ssembly and of petition,” and “to

keep and bear arm s.”

355

In debate on the same bill, Mississippi

Repu blican J ames Alcorn made it clear that the m ilitia

consisted of all cit izens, not just a select group: “The citizens of

the United States, the posse comitatus, or the m ilitia if you

please, and the colored man composes part of these.”

356

7. S um m ary of Con gressional policy

The Congressm en of this period were hardly interested in

strengthening the state militias (which had just been defeated

in the War of Rebellion, as they called it), or in reinforcing

states’ rights.

357

The Congressional concern about the constitu-

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1459

The proposition here . . . is an applica tion to Congress to do that which

Congress has no right to do under the second amendment of th e

Constitution. . . .

We hear a great dea l ab out th e oppre ssions of the n egr oes down Sou th ,

and a complaint here comes from somebody connected with the Freedmen’s

Bureau. . . . Yet, sir, no petitions are here to protect th e whit e people

against th e ou tr ages commi tt ed by t he ne gr o popul at ion; bu t i f a few letters

are written to member s her e th at oppres sion has been pr acticed a gainst

negroes, then the whole white population of a State [is] to be disarmed.

CONG. GLOBE, 39t h C ong., 1st Sess . 914-15 (1866).

358. Akhil Reed Amar suggests that the Fourteenth Amendment accomplished

a re-orientation of the Second Amendment. Whereas the Second Amendment had

originally dealt mainly with the right of people to own gun s to resist an oppressive

federal government through participation in the militia, the Second Amendment

extolled by the framers of the Fourteenth Amendment dealt with personal security,

and the means to r esist criminal at tack effectively. See generally Amar, Th e Bil l of

Rights and Fourteenth Amendment, supra note 1. Amar’s point is useful when taken

as an observation about two eras’ different views of the intended primar y pu rp ose of

the Second Amendment . We should keep in mind, however, that the Fourteenth

Amendment mer ely emphasized an existing thread of th e Second Amendm ent ; it did

not weave in anything new. The Fram ers of the Constitution and th e Second

Amendment saw comm unity defen se aga inst a crim inal governm ent as simply one end

of a continuum th at began with personal defense against a lone criminal; the theme

was self-defense, an d the question of how man y crim ina ls wer e involved (one, or a

standing army) wa s merely a detail. S ee Kates, Self-Pr otecti on, supra note 1, at 92-93.

Thus, the beginning of St. George Tucker’s exposition of the Second Amendment

reminded the rea der t hat “[t]he right of self defence is t he first law of nature.” See

1 BLACKSTONE, supra not e 14, ap p. a t 300; see supra text accompanying note 61.

359. See Kerm it L. Hall, Po li tical Po wer an d Con st it ution al Legit im ac y: T he

South Carolina Ku Klu x Klan Trials, 1871-1872, 33 EMORY L.J. 921 (198 4).

tional right to keep and bea r arms was plainly a concern about

the self-defense rights of individual citizens, especially

freedmen.

358

It would be ludicrous to attempt to explain the

record of the Reconstruction Congresses as anything but strong

support for a personal right to arms for self-defense. Thus, the

anti-individual authors simply avoid any mention of th e

subject. Jonathan Bingham and Jacob Howard, like St. George

Tucker, are carefully ignored.

B. Cruikshank

Under the authority of the new civil rights laws, federal

prosecutors brought many cases against white defendants who,

alone or in groups, had violated the civil rights of freedmen.

These defendants wer e frequently charged with violating the

Second Amendment rights of freedmen by taking their

firearms.

359

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1460 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

360. 92 U.S. 5 42 (1876 ).

361. See 16 Sta t. 1 40 § 6 (1870); see als o 18 U .S. C. §§ 2 41-2 42 (1 994 ).

That if two or more persons shall band or conspire togeth er, or go in

disguise upon the public highway, or upon the prem ise s of a not her . . . or

intimidate any citizen with intent to prevent or hinder his free exercise and

enjoyment of an y righ t or privile ge gra nt ed or s ecu red to him by the

Constitu tion or laws of the Un ited Sta tes . . . .

Id.

362. See GEORGE C. RABLE, BUT THERE WAS NO PEACE: THE ROLE OF VIOLENCE

IN THE POLITICS OF RECONSTRUCTION 125-29 (1984).

363. See United States v. Avery, 80 U.S. (13 Wall.) 2 51 (1871); United Sta tes v.

Crosby, 25 F. Cas. 701, 701-05 (D.S.C. 1871) (No. 14,893). The cases are discussed in

Hall, supra note 359, at 921.

Eventually, the federal prosecutions m ade their wa y to the

Supreme Court in United States v. Cruikshank.

360

Cruikshank

involved the afterm ath of the 1872 elections in Louisiana.

Following the elections, two separate gover nmen ts—on e

Unionist and one racist—declared themselves the winner and

the official government of the state. In the town of Colfax,

armed bla cks occupied the courthouse and the surrounding

district to asser t the legitimacy of their side’s control of the

local governmen t. Atrocities had been committed on both sides;

a rioting band of white farmers attacked the courthouse,

burned it to the ground, and murdered blacks who tried to

escape the flames. Klansman William Cruikshank and other

leaders of the riot were tried in feder al district court for

violating federal civil rights laws. By t he terms of t he

Enforcement Acts,

361

the trial court found Cruikshank guilty of

conspiring to deprive the blacks of their Constitutional rights,

including the right to assemble peaceably and the right to bear

arms.

362

The Cr uiks hank case forced the United States Supreme

Court to squarely address the issue of whether the enumerated

provisions of the Bill of Rights were made enforceable against

the states by the Fourteenth Amendment and the

Congressional laws enacted pursuant to the Amen dment. The

issue had arisen a few yea rs before, in a feder al prosecution of

South Carolina Klansmen for conspiring to deprive blacks of

their arms and to destroy the black militias. There, the lower

federal courts had held that the Fourteenth Amendment did not

incorporate the Bill of Rights. The Supreme Court evaded

review on procedural grounds.

363

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1461

364. Cruik shank, 92 U .S. a t 551 (em phas is a dded). A su btext of th e opinion was

that the Reconstruction govern men t of Louisiana had encour aged bla cks to assem ble

armed, knowing tha t disturbances would result; hence, it was the sta te government’s

responsibility (not th e Supre me Cou rt ’s) to pr ote ct blacks from disarmament and

interfe re nce with th eir right to assemble.

365. Id. at 553 (quotin g Ne w York v. Miln, 3 6 U.S. (11 Pe t.) 125, 139 (1837)); cf.

Bliss v. Commonw ea lth, 12 K y. (2 Lit t.) 90, 92 (1822 ) (“The right [to arms in the

Kentucky Constitution] existed at the adoption of the constitution; it had then no

limits short of the moral power of the citizens to exercise it, and it in fact consisted

in noth ing else bu t in t he liber ty of th e cit ize ns to b ea r a rm s.”).

In Cruikshank, the Supreme Court held the Enforcement

Acts unconstitutional. The Fourteenth Amendment, the Cou rt

acknowledged, did give Congress the power to prevent

inter ference with rights granted by the Constitution. However,

the Court held that the right to assemble and the right to arms

were not rights granted or created by the Constitution. The

first part of the opinion explained:

The right of the people pea cea bly to assem ble for lawfu l

purposes existed long before th e a dop tion of th e Constitu tion of

the United States. In fact, it is, an d a lwa ys h as bee n, one of

the attributes of citizenship under a free government. It

“derives its source,” to use th e la ngu age of Ch ief J ustice

Marshall, in Gi bbon s v. Ogden, 9 Whea t. 211, “from those laws

whose authority is ackn owledged by civilized m an th rou gh out

the world.” It is found whereve r civilization exis ts . It wa s n ot,

therefore, a right gra nted to th e people by the Constitu tion .

The government of the United States when esta blished foun d

it in existence, with the obligation on the part of the States to

afford it protection.

364

The Court further explained that the right to arms is a

fundamental human right:

The right . . . of “bearing arms for a lawful purpose” . . . is not a

right granted by the Constitution. Neither is it in any mann er

dependent upon that instrument for its existence. Th e se cond

amendment declares that it sh all n ot be infringed; bu t this . . .

means no more than that it shall not be infringed by

Congress . . . lea vin g the people to look for th eir pr otection

against any violation by th eir fellow-citizens of the righ ts it

recognizes, to what is called . . . the “powers which relate to

mer ely m unicipa l legisla tion . . . .”

365

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1462 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

366. Robert Palmer writes that “United States v. Cruikshank accomplished the

nu llifica tion of the fourteenth amendment that scholars traditionally attribute to

Slaughter-House.” Robert C. Pa lmer , Th e Param eters of Con stitu tion al R econstru ction :

Slaughter-House, Cruikshank, an d t he F ourteen th Am end m ent , 1984 U. ILL. L. REV.

739, 762. Palmer argues that Justice Waite’s opinion in Cruikshank misread

Slaughter-House, and wrongly assumed that state and federal privileges and

immunities were absolutely dist inct. See id.

Cruikshank was over ruled by implication by DeJonge v. Oregon , 299 U.S. 353

(1937), which held, d irectly contrary to Cruikshank, that the righ t to assem ble

peaceably was gu aranteed by the Fourteenth Amendment. Because Cruikshank had

applied identical reasoning to find that the First Amendment (assembly) and Second

Amendment (arms) were not protected by th e Fou rteenth Amen dment, Cruikshank

may not be good law today w ith re gar d to th e Fourteen th Amend ment ’s pr otection

of the right to bear arms.

One oth er Recon st ru ction Su prem e Cou rt case touch ed on th e right t o ar ms.

Cum mings v. Missouri was a n 1866 case growing out of th e 1865 Missou ri

Constitution, which imposed nu mer ous civil disabilities—pr ohibitions on engaging in

various professions, holding certain types of property, and h olding government

office—on persons wh o had supported th e Confederate caus e. Cummings v. Missour i,

71 U.S. 277 (1866). The State of Missouri defended the disabilities on the grounds

that deprivations of civil rights were not punishment. The Supreme Court disagreed.

Ju stice Stephen Field’s majority opinion observed that:

In Fr an ce, de priva tion or suspension of civil rights, or of some of them, a nd

among these is th e right of voting, of eligibility to office, of taking part in

family councils, of being gua rdian or t rustee, of bearing arms, and of

teaching or bein g em ployed in a sch ool or s eminary of learning, are

punishments prescribed by her code.

Id. at 321. The Court then explained that a deprivation of civil rights in the United

Cruikshank thus asserted that the Second Amendment

protected, but did not create, the individual’s right to bear

arms; the right instead derives from natural law. The Court’s

position that people must look to local governments “for their

protection against any violation by their fellow-citizens of the

rights” that the Second Amen dment recognizes is

comprehensible only under the individual right s view. If

individuals have a right to own a gun, then individuals can ask

local governments to protect them against “fellow-citizens” who

attempt to disarm them. In contrast, if the Second Amendment

right belongs to the state governments as protection against

federal interfer en ce, then mere “fellow-citizens” could never

infringe that right by disarming mere individuals.

The Cruikshank decision completed the work begun by The

Slaughter-House Cases, ruining the Fourteenth Amendment as

a check on most state abuses of the Bill of Rights until the

1920s.

366

Although no longer good law, the case clearly ap-

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1463

Stat es must also be considered a form of punishment:

The theory upon wh ich our inst itutions rest is, t hat all men have certain

inalienable rights—that among these a re life, liberty, and th e pu rsuit of

happiness; and that in the pursu it of happiness all avocations, all honors,

all positions, a re alike open t o eve ry one, and th at in pr otection of these

rights all are equ al before th e la w. An d depriva tion or su spen sion of th ese

rights for past conduct is pun ishm ent , and can in no otherwise be defined.

Id. at 321-22.

The Court st ru ck down the relevant provisions of the Missouri Constitution as a

bill of atta ind er, an ex post fact o law , an d a viola tion of due process. (The Missouri

deprivations did not prohibit the ownership or carrying of arms in any way; instead

the 186 5 Miss ouri Con st it ut ion affi rm ed th e r igh t of the people of Missouri “to bear

arms in defence of themselves and of the lawful authority of the State cannot be

questioned.” MO. CONST. art. I, § 8 (1865). Thus, th ere was no place for the Supreme

Court to consider the Second Amendm ent as a n objection t o the Missour i civil rights

depr ivations.) The Cou rt em phas ized th at th e ex-confed erat es cou ld be pu nis hed for

part icipa tion in th e r ebe llion according to law s which e xiste d a t t he ti me of th e

rebellion, but th at additional punishments could be not added after the fact. Id. at

327-29.

The Cummings principles rem ain valid law. F or example, in 1965, the Supreme

Court relied on Cum mings to ove rt ur n a law which b ar red ex-Commu nis ts from

becoming officers of labor unions. United States v. Brown, 381 U.S. 437, 447-48 (1965)

(holding that a dep rivation of civil right s is pu nish men t; th e Bill of Att ainder clause

is to b e br oad ly con st ru ed).

Cum mings raises inter estin g issues about modern gun control laws. The Supreme

Court in Cum mings labeled “bearing arms” a civil right, and insisted that a citizen

may be depr ived of civil r igh ts only as t he re su lt of a conviction for a crime when the

penalty for the crime was establish ed before , r at he r t ha n a fte r, th e com mi ssion of th e

crime. In the modern United States, in contrast, it is common for federal and state

laws to impose additional punishments for a crime, long after the defendant has pled

guilty and served his pun ishm ent. For exa mple, a pers on might have pled guilty t o

federal tax evasion in 1954 and ser ved a prison term or paid a fine. The punishment

for th e tax cr ime, a s of 1954, did n ot include loss of the right to keep and bear arms.

But in the Gu n Cont rol Act of 1968, the Congress banned the possession of firearms

by an yon e with a felon y con vict ion —eve n fe lony con vict ion s in cur re d lon g be fore 1968.

18 U.S.C. § 92 2(g)(1). Th e ba n likewise extends r etroa ctively t o per sons in var ious

cat egories un re late d t o crim e, s uch as bei ng dis honora bly dis cha rged from the

milita ry. Id. § 922(g)(6). Similarly, in 1994, Congress banned firearms possession by

anyone with a misdem eanor conviction for dome stic violence, no m at ter h ow long

befor e 1994 the conviction occur red. Id. § 922(g)(9). The courts have upheld these

retroactive prohibitions on the grounds th at they do not im pose an y retroactive

punishment; no on e will be s en t t o prison unless they possess a firearm aft er the

effective dat e of the law. See, e.g., United St ates v. Brady, 26 F.3d 282, 290-91 (2d

Cir. 1994). Thus, the modern courts adopt the position of the Missouri Attorney

General (that deprivation of civil rights is not punishment; only prison, executions,

and fines are punis hm en t), a nd reject th e positi on of the United States Supreme

Court. A per son dis hon ora bly d isch ar ged from th e sta nd ing arm y becau se of h is

object ions to the Vietnam War is deprived of the constitutional protections which were

accorded even to person s who had borne a rm s in rebellion against t he feder al army

in the n ineteent h century. It is not always true that modern cour ts pr otect civil

rights and enforce the Constitution with more zeal than did their nineteenth century

predecessors.

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1464 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

367. S ee, e.g., JEREMY BRECHER, STRIKE! (199 7); ROBERT W. BRUCE, 1877: YEAR

OF VIOLENCE (1989 ); PRISCILLA LONG, WHERE THE SUN NEVER SHINES: A HISTORY OF

AMERICA’S B LOO DY COAL INDUSTRY (1989); Philip Taft & Philip Ross, Am erican L abor

Violence: Its Cau ses, Cha racter, an d O utcom e, in VIOLENCE IN AMERICA: HISTO RICAL

AND COMPARATIVE PERSPECTIVE S 281-395 (Hugh Davis Graham & Ted Robert Gur r

eds., 196 9). Another historian writes:

One of the major themes in American urban history since the 1850s has

been the struggle of municipal authorities and their business-class allies to

gain a monopoly on the use of violence. Th e pr oblem was n ot t ha t t he

electe d officials lacked a monopoly on the use of legally auth orized violence;

rather, th ey str uggled to convince turbulent portions of the populace that

all other violence was illegitimate.

Michael Feldberg, The Crowd in Philadelphia History: A Comparative Perspective, in

RIOT, ROUT , AND TUMULT: R EADINGS IN AMERICAN SOCIAL AND POLITICAL VIOLENCE 142

(Roger La ne & J ohn J . Tu rn er , J r., ed s., 197 8).

368. This title translates to “teaching and defense union.” CRAMER, supra note

1, at 130.

369. See PAUL AVRICH, THE HAYMARKET TRAGEDY 45-4 6 (19 84).

370. Presser v. Illin ois, 11 6 U.S. 252 , 265 (18 86).

371. The Court’s opinion was consistent wit h est ablish ed com mon law limits on

the right to arms which prohibited large, terrifying assemblies of a rmed m en. S ee 1

HAWKINS, supra note 96, at ch. 60.

proaches the Second Amendment from an “individual right”

perspective.

C. Presser

Labor and anti-labor violence, both in urban centers and in

rural coal mines, became quite frequent in the latter part of the

nineteenth century.

367

The major nineteenth century Supreme

Court interpretation of the Second Amendment involved a

group of German immigrants—Lehr und Wehr

Verein

368

—marching in military exercise in pu blic. Th e ca se

grew out of an Illinois arms control measure enacted in

response to the labor uprisings of the late 1870s. State militias

and the federal army had brutally suppressed peaceful strikes.

When workers began forming self-defense organizations such as

Lehr und Wehr Verein, the state government outlawed private

militias.

369

A member of Lehr und Wehr Verein took the case to the

United States Supreme Court, and lost. First, the unanimous

Court stated that the Illinois laws “do not infringe t he r igh t of

the people to keep and bear arm s.”

370

Thus, the right to own

and carry gu ns does not include the right to carry guns in

public as part of a large group on military parade.

371

Further, as

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1465

372. Pres ser , 116 U.S. at 265.

373. Id. at 265-66.

374. Id. at 265.

375. S ee, e.g., Levinson, supra note 1, at 652-53.

376. See Planned Pa ren thood v. Casey, 505 U.S. 833, 848 (1992); Moore v. East

Cleveland, 431 U.S. 494, 502 (1977) (plura lity opin ion); Poe v. Ullman, 367 U.S. 497,

542-43 (196 1) (Har lan, J ., diss en ti ng).

Cruikshank had noted, the Second Amendment, under the

Slaughter-House rationale, “is a limitation only upon the power

of Congress and the National government, and not upon that of

the Stat es.”

372

In dictum, the Court stated that even though the Second

Amendment did not limit state gun control, there was still a

constitutional limit on state controls. The states could not

disarm the public so as to deprive the federal government of its

militia:

It is un dou btedly tr ue th at all citizens capa ble of bearing a rm s

constitute the reserved military force or re serve militia of th e

United States . . . and, in view of t his p rer oga tive of th e

general gover nm ent . . . th e St at es ca nn ot, even laying the

constitutional provision in question [the Second Amendment]

out of view, proh ibit t he peop le from keepin g and bearing

arm s, so as to deprive th e U nited St ate s of t heir righ tfu l

resource for maintaining the public security, and disable the

people from performing their duty to the general government.

But, as already stat ed, we th ink it clea r t hat th e section s

under con sid er ation do n ot h ave t his effect.

373

The militia thus includes “all citizens capable of bearing

arms.”

374

Anti-individualist authors who discuss Cruikshank and

Presser tend to emphasize the nonapplicability of the Second

Amendment to the states, while gliding over the cases’ clear

understanding of an individual right to arms. Most Standard

Model authors acknowledge Cruikshank and Presser as green

lights for state gun control. The Standard Modelers argue,

however, that Cruikshank and Presser should be repudiated in

light of modern Fourteenth Amendment doctrine,

375

or that the

two cases already have been repudiated by dicta in three

modern cases listing “the right to keep and bear arms” a s

among the “full scope of the liberty” protected against state

infringement by the Fourteenth Amendment.

376

Stephen

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1466 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

377. See Ha lbrook, Personal Security, supra note 1, at 343-44.

378. ALAN R. JONES, THE CONSTITUTIONAL CONSERVATISM OF THOMAS MCINTYRE

COOLEY 1 (19 87).

379. B. TWISS, LAWYERS AND THE CONSTITUTION : HOW LAISS EZ FAIRE CAME TO THE

SUPREME C OURT 34 (194 2), quoted in Stephen A. Siegal, Historism in Late Nineteenth-

Century Constitutional Thought, 1990 WIS. L. REV . 1431, 1485 n.302.

380. See ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW 30 n .2 (1 938).

381. See Paul D. Ca rr ington, Law as “The Common Thoughts of Men”: The Law-

Teaching an d J ud gin g of T hom as M cIn tyre Cooley, 49 STAN. L. REV. 495 , 496 (1997).

382. See THOMAS COOLEY, A TREATISE ON THE LAW OF TAXATION, INCLUDING THE

LAW OF LOCAL ASSESSME NTS (187 6).

Halbrook, one of the most important Standard Model authors,

argues that the state gun control passages in Cruikshank and

Presser are mere dicta; the holding of Cruikshank was that the

Second Amendment could not be infringed by nongovernment

actors, and the holding of Presser was that the Second

Amendment was not infringed by a ban on armed parades.

377

VI. COMMENTARY FROM THE LATE 19TH CENTURY: COOLEY AND

OTHERS

Turning to the scholarly commentators of the late

nineteenth century, Part VI of this Article examines, among

other things, how Cruikshank and Presser were read by the

legal community of the period in which they were decided.

A. Thomas Cooley

By far the leading constitutional expositor of the post-Civil

War America, “the nation’s elder statesman on matters of

const itutional law,”

378

was Michiga n Su pr em e Court J ust ice

Thomas Cooley. He was considered “the greatest authority on

constitutional law in the world.”

379

Cooley served on the

Michigan Supreme Court from 1864 to 1885, was listed by

Roscoe Pound as one of the ten greatest judges in American

history,

380

and would have been appointed to the United States

Supreme Court, but for Republican bosses who feared his

independence.

381

Cooley also served as the first Dean of the Law Department

at the University of Michigan, which eventually became the

Michigan Law School. He taught Constitutional Law, among

other su bjects, and wrote im por tant treatises on taxation

382

and

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1467

383. See THO MAS COOLEY, A TREATISE ON THE LAW OF TORTS OR THE WRONGS

WHICH ARISE INDEPENDENT OF CONTRACT (1880). Th e tort s t reat ise “was long

considered the authoritative American treatment.” 4 DICTIONARY OF AME RICAN

BIOGRAPHY 393 (A. John son & D. Malone eds., 1930), quoted in Siegal, supra note

379, at 1486 n.309.

384. See Car rington, supra note 381, at 515-16.

385. See id. at 498.

386. P. PALUD AN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW AND

EQUALITY IN THE CIVIL WAR ERA 252 (197 5), quoted in Siegal, supra note 379, at 1485

n.302.

387. Siegal, supra note 379, at 1487.

388. ROBERT G. MCCLOSK EY, THE AMERICAN SUPREME COURT 87 (1960 ).

389. Carrington, supra note 381, at 496-97.

390. Book Note, 27 ALB. L.J . 300 (1883).

391. BERNARD SCHWARTZ, THE LAW IN AMERICA 134 (197 4).

torts.

383

Professor Cooley was a superb lecturer, and (in great

contrast to Harvard’s Langdell) courteous to his students. In

his classes, he always paid heed to the social and cultural

context of the law.

384

President Cleveland appointed Cooley the first head of the

new Interstate Commerce Commission (ICC). Although Cooley

was a Republican, Democrat Cleveland selected him because

his reputation for impartiality would give the ICC the trust and

respect of persons of all points of view.

385

He is the only person

mentioned in this article to have a law school named after him.

In short, Thomas Cooley wa s “the most influen tial legal author

of the late nineteenth and early twentieth centuries.”

386

1. A Treatise on Constitutional Limitations

“[T]he foundation of [Cooley’s] fame and his central

contribu tion was his first major publication,”

387

the 1868

volume A Treatise on Constitutional Limitations, which went

through several editions over the following decades. It became

“a canonical text for jurists.”

388

Two decades later , it “was still

the most sch olarly a nd certainly t he m ost adm ired Amer ican

law book.”

389

As a reviewer of a later edition explained, the book

was “cited in every argument and opinion on the subjects which

it treats, and not only is t he book a uthoritative as a digest of

law, but its author’s opinions are regarded as almost

conclusive.”

390

A century later, Constitutional Limitations could

accurately be described as “the most influential lawbook ever

published.”

391

The fir st edition of Constitutional Lim itation s stated:

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1468 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

392. See supra note 152 and accompanying text.

393. See supra text accompan ying notes 246-54 (reviewing the Georgia case,

Nunn v. State, holding that the Second Amendment guarantees individual right to

open carr y, but not to concealed car ry).

394. 10 Ky. (3 A.K. Marsh .) 70 (1820) (holding a lso that free blacks have some

constitutional righ ts , as “pa rt ies to t he politi cal compa ct”).

395. THOMAS M. COOLEY, A TREATISE ON CONSTITUTIONAL LIMITATIONS WHICH

REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 350

(Little, Br own 197 2) (18 68).

396. Id.

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 particularly obnoxious in any free

government, and the jea lousy of one has at times been

demonstrated so st ron gly in Engla nd a s a lm ost to lead to t he

belief th at a sta ndin g arm y recruited fr om among themselves

was more dr ea ded a s an instru men t of oppr ession 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 ar my pr actically im possible by only passin g a mutiny

bill from session to session. Th e alternative to a standing army

is “a well-regulated militia,” but this cannot exist unless the

people are trained to bearing ar ms. How far it is in the power

of the legislat ur e to regulate this righ t, we sh all not undertake

to say, as happily there has been little occasion to discuss that

subject by the courts.

In Bliss v. Commonwealth, 2 Lit. 90, the statute “to

prevent persons wearing concealed arm s” was held

unconstitutional, as infringing on the right of the people to

bea r a rm s in defen ce of th em selves an d of the State.

392

But see

Nunn v. State, 1 Kelly 243.

393

As bearin g upon th e r igh t of self-

defence, see Ely v. Thompson, 3 A.K. Marsh. 73,

394

where it

was held th at t he sta tu te su bjecting fr ee per son s of color to

corporal punishm ent for “liftin g th eir hands in opposition” to a

wh ite per son wa s held u ncon stitu tion al.

395

After denouncing standing armies, Cooley informed the

reader that “‘a well-regulated militia’ [requires that] the people

are trained in the use of arms.”

396

In the footnote, Cooley first

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1469

397. See id. Only one pre-Cooley treatise cited Ely. S ee DUER, supra note 165,

at 37 n .1. Coole y’s select ion of a ca se up holding just ifia ble self-defense by a bla ck

man may have been a reflection of Cooley’s own anti-racism. His Michigan Law

School was alwa ys open to people of all colors. See Car rin gton, supra note 381, at

516. On th e Mich igan S up reme Court , J us tice Cooley au th ore d an opinion voiding

racial segregat ion in the Det roit public schools. S ee People v. Board of Educ., 18

Mich . 399 (186 9).

398. See COOLEY, supra note 395, at 35.

399. Id. at 35-36.

mentioned a Kentucky case using the state const itution to

strike down a ban on concealed carry. Cooley next cited a

Georgia case using the Second Amendment to void a restriction

on carrying guns openly, while upholding a restriction on

carrying concealed guns. The third case shows plainly that to

Cooley, the “Right to bear Arms” (as h e entitled this section)

was about individual self-defense.

397

Elsewhere in the text, Cooley offered advice about the

“Formation of State Constitutions.”

398

Among the elements

which Cooley thought appropriate to include in every state

constitution was

a decla ra tion of righ ts for th e pr otection of individ ua ls and

minorities. This declar at ion u sually contain s the following

cla ss es or pr ovision s:

1. Those declaratory of the general principles of repu blica n

government [including a ban on peacetime standing

ar m ies] . . . .

2. Those declaratory of the fundamental rights of the

citizen; . . . [inclu din g free speech, freedom of religion , freedom

from unreasonable searches and seizures, and] that every man

may bear arms for the defence of himself and of the State.

399

If Cooley could reflect “happily” on how little gun control had

been enacted in the United States, it is unsurprising that he

urged new states to adopt Bills of Rights which specifically

guarantee arms possession for personal defense.

2. The General Principles of Constitutional Law

In 1880, Cooley authored The General Principles of

Constitutional Law, an abridged version of the Constitutional

Limitations treatise. The book was “a popular college text and

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1470 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

400. Siegal, supra note 379, at 1486 n.307.

401. These last two se nt en ces were qu ote d (wit h p roper cita ti on) as an

explan at ion of the Second Amendment in C. ELLIS STEVENS, SOURCES OF THE

CONSTITUTION OF THE UNITED STATES, CONSIDERED IN RELATION TO COLON IAL AND

ENGLISH HISTORY 224 (New York, MacMillan 2d ed. 1894). The right to arms is a

“right involving the latent power of resistance to tyrannical government,” Stevens

explained. Id. at 223. “From prehistoric days the right to bear arms seems to ha ve

been the badge of a Teutonic freeman, and closely associated with his political

privileges. Su ch a rm ed fr eem en ma de u p the militar y host of t he t ribe.” Id. Stevens

traced the right to arms and the corresponding militia duty from Saxon times to the

middle ages, and finally to th e 1689 E nglish Bill of Rights . See id.

402. See T HOMAS M. COOLEY, THE GENER AL PRINCIPLES OF CONSTITUTIONAL LAW

IN THE UNITED STATES OF AMERICA 281 -82 (Bost on, Litt le, Br own 2d ed. 1891).

student’s guide.”

400

General Principles had a much longer

exposition of the righ t to arms:

Section IV. — THE RIGHT TO KEEP AND BEAR ARMS.

The Con stitu tion . — By the second amendment to the

Con stitu tion it is d eclar ed t ha t “a w ell-regulat ed m ilitia bein g

necessary to t he se cur ity of a free Stat e, th e right of th e people

to k eep a nd bea r a rm s shall not be in frin ged .”

The amendm ent, like most other provisions in the

Constitution, has a h istory. It wa s adopted with som e

modifica tion and enlargem ent from the E nglish Bill of Rights

of 1688, wh ere it stood a s a pr ote st against ar bitra ry act ion of

the overturned dynasty in disarming the people, and as a

pledge of the new rulers th at th is tyran nica l action shou ld

cease.

401

Th e r igh t d ecla red was mea nt t o be a stron g m ora l

check against the usurpation and arbitrary power of rulers,

and as a necessa ry and efficient m eans of regainin g rights

when temporarily overturned by usu rpation. [Cooley then

placed a foot note to St. George Tucker’s extravagant tribute to

the individual right to arms.

402

]

The Righ t is General. — It may be supposed from the

phraseology of this provision that the right to keep and bear

arms was only guara nteed to the militia; but th is would be an

interp re ta tion not warr anted by the intent. The militia, as has

been elsewhere explained, consists of those persons who,

under th e law, a re liable to the perform an ce of military du ty,

and are officered an d enrolled for service w hen called upon .

But the law m ay make provision for th e en rolm ent of all wh o

are fit to perfor m militar y duty, or of a sm all number only, or

it may wh olly omit to mak e any provision at all; and if the

right were limited to those enrolled, the purpose of this

guaranty might be defeate d a ltogether by t he a ction or neglect

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1471

403. Id. at 282-83. At the end of the section, Cooley cited Andrews v. State, 50

Tenn (3 Heisk.) 165 (1872), for the proposition th at the impr oper car rying of small

weapons not s uita ble for defense against tyran ny could be prohibited. COOLEY, supra

note 402, at 283 n .1; see also 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS

OF E NGLA ND 143 (Thomas M. Cooley ed., Chicago, Callaghan 1884) (conta ining

Cooley’s notes on Blackstone’s exposition of the right to arms: “In the Un ited States

this right is preserved by express constitutional provisions. But it extends no further

than to keep and bear those arms wh ich are suited and proper for the general

defense of the community against invasion an d oppression.”). Lawrence Cress quotes

this pa ss age fr om Coole y to su pport C re ss’s positi on th at th e Secon d Am endment

guarant ees only a right of sta te gover nm ent s. S ee Cress, supra note 2, at 42. In light

of Cooley’s statements in Constitutional Limitations (which Cress must have known

about since he cites Constitutional Limitations, ev en th ough he doe s n ot q uote it),

Cress’s attempt to use Cooley to support an anti-individu al Second Amendment is

tota lly implausible.

Also implausible is the claim of Robert J. Spit zer , aut hor of The Politics of Gun

Control, that the “classic analyses of the nineteenth century, like those of Joseph

Story and Thomas Cooley” support Spit zer’s theor y that no individual has a right to

own a gun. SPITZER, supra not e 2, a t 42-43. In th e en dnote for t he assertion, Spitzer

cites Story and Cooley, but does not quote any of their words. Instead, Spitzer writes

that “Cooley did not in clud e discussi on of the importa nt Presser case until the

subsequent (fourth ) edition of his book, published in 1931, when he buttressed the

standard interpr etation foun d in the wr itings of other cons titutional sch olars.” Id. at

56 n.60 (parenthetical in original). Actually, Judge Cooley had been dead for 33 years

when the fourt h edition was publishe d. See Andrew C. Mclauchlin, Thomas McIntyre

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 m ilitia must be taken, shall have the right to keep

and bea r a rm s, a nd t hey n eed n o perm ission or regulation of

law for the purpose. But this enables the governm ent to ha ve a

we ll-r egulated militia; for to bear ar ms im plies som ethin g

more than th e m ere keeping; it im plies th e lea rn ing to h an dle

and use them in a way that makes those who keep them ready

for th eir efficient use; in ot he r words, it im plies the right to

meet for voluntary discipline in arms, observing in doing so

the laws of public order.

Standing Arm y. — A further purpose of this amendmen t

is, to preclude any necessit y or r easonable excu se for keepin g

up a standin g arm y. A sta ndin g a rm y is condemned by the

tr ad ition s and sen tim en ts of th e people, a s be ing as dan ger ous

to the liberties of the people as the general preparation of the

people for th e defence of their institutions with arms is

preservative of them .

What Arm s may be kept. — The arms intended by the

Con stitu tion are such as are suita ble for t he general defence of

the community against invasion or oppression, and the secret

carrying of those suit ed merely to deadly individual

encounters may be prohibited.

403

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1472 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

Cooley , in DICT. AM. BIO., supra note 90.

404. See THO MAS M. COOLEY, THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW

IN THE UNITED STATES OF AMERICA 297 -99 (Bost on, Litt le, Br own 3d ed. 1898).

405. COOLEY, supra note 395, at 270; see generally William s, Civic Republicanism ,

supra note 8.

406. See Hen igan , Arms, Anarchy, supra note 2, at 122. Hen igan credits him self

with scor ing a poin t on Levinson , since th e fourt h e dit ion un der cuts Levinson’s point

that the Second Amendment may invalidate state antigun laws. See id. But Levin son

was not re lying on C ooley’s th ird edition in re gar d to st at e gu n la ws; Levin son

elsewhere cited and ack nowle dge d t he au th ority of Cruikshank and Pres ser. Levinson’s

point about state gun laws turned on his argument that twentieth-century analysis

about the Fourteenth Amendment has rendered Cruikshank and Presser obsolete. See

Levinson, supra note 1, at 652-53.

Cooley repeated the above language verbatim in the 1898

edition of General Principles.

404

Cooley’s discussion in “The Right is Genera l” is perhaps the

most concise explica tion of how the in dividual righ t to arms

supports the Second Amendment’s goal of “a well-regulated

militia.” Ther e is no ambiguity to Cooley’s view of the Second

Amendment as an individual right, and there is no questioning

Cooley’s position as, by far, the leading constitutional

commen tator of post-Civil War America.

Cooley also provided the succinct St andard Model reply to

the argument of David Williams that the right to bear arms is

contingent on the government maintaining the militia: “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.”

405

govern-ment neglect could destroy the Second Amendment,

then the Amendment would hardly be a check on government

abuse.

Heniga n addresses Cooley, bu t sidest eps t he Second

Amendment issue. He first notes that Levin son qu otes from

Cooley’s third edition. Henigan then points out that the fourth

edition (published years after Cooley’s dea th) contains a

citation to Presser, not contained in the third edition, which

stands for the principle that the Second Amendment limits only

the federal government, and not the states.

406

This is true

enough, but Henigan does not show any flaws in Cooley’s

interpretation of the Second Amendment, nor does he show that

Cooley’s view was r ejected by a ny contempor ary. Henigan fails

to acknowledge another statem ent by Cooley, which directly

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1473

407. Thomas M. Cooley, The Abnegation of S elf-Governm ent , PRINCETON REV.,

July-Dec. 1883 , at 209, 213-14; see also Levin son, supra note 1, at 649 n.64 (q uoting

Cooley’s us e of t hi s t ext in th e t hird edit ion of GEN ERAL PRINCIPLES OF

CONS TITU TION AL LAW). In the next paragraph, Cooley wrote that a person who refuses

to heed an unconstit utional law “need for th e pur pose no judicial decision, n o official

assistance; he simply obeys the constitution, which is the law made by t he sovereign,

and is t he refore par amount , instead of th e law a ttempted to be ma de by th e

subordinate, which m ust n ecessa rily be inferior, and if conflicting, inopera tive.”

Cooley, supra note 404, at 214. The concluding paragraph urged Americans to exceed

the minimal dut ies of good citizenship, which were “that they sh ould cast their ballots

for suitable pe rsons in election, or th at they sh ould p erform ju ry du ty, or bear arms

when sum moned to the defen ce of the State.” Id. at 226.

408. See Hen igan, Arms, Anarchy, supra note 2, at 119-20.

409. See Levinson, supra note 1, at 649 n.64.

addresses Henigan’s concern that a constitution cannot

contemplate the overthrow of the government created by the

constitution, should the government become tyrannical:

The right of the people to bear arms in their own defence,

and to form and drill military organ iza tion s in defen ce of t he

State, may not be very impor ta nt in th is cou ntry, but it is

sign ificant a s having been reserved by the peop le as a possible

and necessary resort for the protection of self-government

against usurpation, and against any attempt on the part of

those who may for the time be in possession of St at e aut hor ity

or resources to set aside t he const itu tion an d su bst itu te th eir

own rule for th at of the people. Should th e contingency ever

ar ise w hen it wou ld be necessa ry for th e people to make use of

the arms in their hands for the protection of constitutional

liberty, the proceeding, so far from being revolutionary, would

be in strict accord with popular right and duty.

407

In analyzing Cooley, Heniga n was a ttem pt ing to refu te Sanford

Levin son ’s The Embarrassing Second Amendment point by

point (wh ile accusing Levin son of select ive quotation).

408

seems likely, then, that Henigan was awar e of Cooley’s

statement—since Levinson had quoted the statement in full in

his own article.

409

Thomas Cooley wa s u nqu estionably an adh eren t to the

Standard Model, and believer in what Henigan derides as the

insurrectionary view of the Second Amendment. Of course,

Cooley, like ever y other comm entator of th e nineteenth century,

saw the use of arms to restore the Constitution and to remove a

government that was destroying the Constitution as a method

of upholding the law, not as “insurrection.” If, as Henigan’s

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1474 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

410. JOEL TIFFANY, A TREATISE ON GOVERNMENT AND CONSTITUTIONAL

LAW—BEING AN INQUIRY INTO THE SOURCE AND LIMITATIONS OF GOVERNMENTAL

AUTHORITY ACCORDING TO THE AMERICAN THEORY (186 7).

411. The good of the republic is the supreme law.

group claims, the Standard Model of the Second Amendment is

“a fraud,” then was Justice Cooley a participant in that “fraud”?

Or a victim? Or is it perhaps inappropriate to describe as a

“fraud” the view held by the lea ding commentator of the late

nineteenth century—a view which, we shall see below, was held

by every other scholar in the period who discussed the issue?

B. The Lesser Com m entators

Many other scholar s wrote constitutional trea tises in the

postwar years, alth ough none was as influential as Cooley’s. All

of these scholars, like a ll of the commentators before them,

treated the Second Amendment as an individual right.

1. Joel Tiffany

Antisla very attorney Joel Tiffany remained active after the

Civil War. His 1867 book A Treatise on Government and

Constitutional Law

410

stated:

The second amendmen t of the constitution provides that the

right of the people to keep and bear arm s shall not be

infringed, beca use a w ell-regu lated m ilitia is necessa ry to the

security of a free state. The militia ar e the citizen soldier s, a s

distinguished from those who are trained to arms as a

pr ofess ion, an d who cons tit ute th e elem en ts of a standing

army. To be an efficient m ilitiaman the right to keep and bear

arms is essen tia l. Th is p rovision had it s source in that jealousy

of power in the hands of the central government, so manifest

in the people, at the time the constitution was framed and

adopted. This right in the people to keep an d bear arms,

although secu red by th is pr ovision of the constitution, is held

in subjection to the public safety and welfare. Whenever for

any cause, the public safety shall require th e su bst itu tion of

martial for civil administration, then the maxim, salus

resp ublica suprema lex,

411

applies; and this constitutional right

may be temporarily suspended. But while civil authority bears

sway, this provision of th e con stitu tion is t he su pr em e la w on

that subject. Of the same character is the third amendment.

No soldier sh all, in time of peace, be quartered in any house,

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1475

412. TIFFANY, supra note 410, at 394-95.

413. See supra note 309 and accompanying text.

414. Well, almost no one. Garr y Wills contends that the Third Amendment has

no lega lly m ea ningful content . S ee Wills, supra note 5, at 72. But see Powe, supra

note 1, a t 1 361 (re sp ondin g t o Wills on th e Third Ame nd me nt ).

415. Tiffany’s broad th eory of ma rt ial law (allowing su spe nsion of t he Secon d or

Third Amendment during war), which was n o doubt influenced by Lincoln’s aggress ive

and arguably unconstitutional u se of mar tial law powers during the Civil War, might

reasonably be quest ione d. The Third Amendm ent s pecifically pr ovides for

circumstances of war, and the habeas corpus clause states that it ma y be suspended

during ma rt ial la w. T he pr ovis ion for su spen sion of habeas corpus during martial law

implies that other constitutional rights, for which there are no suspension provisions,

may not be suspen ded during m artia l law.

416. See Richard L. Aynes, On Misreading John Bingham and the Fourteenth

Amendment, 103 YALE L.J. 57, 83-84 n .158 (1993).

417. See Pa ul D. Ca rr ington, The Revolutionary Idea of University Legal

Ed uca tion , 31 WM. & MARY L. REV . 527 , 562 (19 90).

418. TIMOTHY FARRAR, MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF

AMERICA (Boston , Litt le, Br own 186 7).

419. Aynes, supra note 416, at 85 (a lter at ion in origin al) (cit at ions om it te d).

without the consent of the owner, nor in time of war, but in the

manner prescribed by law.

412

Tiffany’s prewar antislavery writings had used the

individual right in the Second Amendment as an argument

against slavery.

413

After the war, he construed the Second

Amendment in pari materia with the Third Amendment, which

no one

414

disput es is an individual right.

415

2. Tim othy Farrar

Antislavery attorney Tim othy Farrar had been the law

partner of Daniel Webster,

416

and also part of a group of

trustees of Dartmouth college who modernized the

curriculum.

417

By the time he wrote his 1867 Manual of the

Constitution of the Un ited S tates,

418

he had r isen to the ben ch.

Farrar was a respected figur e, and his views were wid ely

known. An Ohio congressman, J udge William Lawrence, cited

Farrar’s 1867 treatise as authority to defend the

constitut iona lity of the 1866 Civil Righ ts Act. Historians have

praised Fa rr ar ’s abilities and not ed h is influence on national

leaders du rin g th e Civil War a nd Recon stru ction as well a s his

role “help[ing] to define clearly public attitudes on the nature

an d purp ose of th e Constitu tion .”

419

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1476 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

420. See id. at 83.

421. FARRAR, supra note 418, at 145.

422. See id. at 512-13.

423. Id. at 513-14.

424. Id. at 514.

Taking an expansive view of constitutional rights, similar to

the one shared by Fourteenth Amendment sponsor Jonathan

Bingham,

420

Farrar wrote:

The Stat es a re recognized a s govern ments, an d, when t heir

own const itu tion s perm it, may do as they please; provided they

do not interfere with the Constitution and laws of the United

States, or with the civil or natural rights of the people

recognized thereby, and held in conform ity to them. The right

of every person to “life, liberty, and property,” “to keep and

bear arms,” to the “writ of habeas corpus,” to “trial by ju ry,”

and divers others, are recognized by, and held under, the

Constitution of the U nited States, an d cann ot be infringed by

individuals or St ate s, or even by th e governmen t its elf.

421

In the chapter on “State Disabilities,” Farrar first listed the

provisions on the main text of the Constitution forbidding acts

which infringe civil liberty (such as t he prohibition on Bills of

Attainder).

422

He then observed:

Many subjects are sim ilar ly restricted in th e constitutional

amendments of wh ich th e followin g a re exa m ples: Th e fr ee

exercise of religion; . . . the right of the people to assemble and

petit ion the government; the right of the people to keep and

bear arms; the right of the people to be secure in their persons,

houses, papers and effects . . . . [These] acknowledged

constitutional rights of the people must be protected by the

government, not only against their own wrongdoing, but

against any other agency in the land.

423

He argued that the federal government has no right “to put a

citizen to the rack” nor “to permit a village magistrate to do the

same thing, under the pretended authority of a State law. And

so of every other prohibition in the catalogue.”

424

Thus, Farrar (lik e Lysander Spooner but unlik e J onathan

Bingham) believed that the Bill of Rights, including the

enumerated right of a person to keep and bear arms, was

enforceable against the states even without the Fourteenth

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1477

425. See Aynes, supra note 416, at 84. Farr ar recognized Barron v. Baltimore,

but ar gued t ha t J ustice John son’s opinion in Houston v. Moore had suggested that

the Fifth Amendme nt is applicable to th e st at es. See id.; Houston v. Moore, 18 U.S.

(5 Whea t.) 1, 33-34 (1820) (separ ate opinion of John son, J .).

426. William Rawle and St. George Tucker made a similar point : even wit hou t

the limitation created by the Second Amendment, the federal government had no

power to enact antigun laws. See also supra notes 62-66, 96 a nd accompanying text.

427. See FARRAR, supra note 418, at 285.

428. Id. at 286.

Amendment.

425

What is relevant for our purposes is not

whether this theory of the direct applica tion of the Bill of

Rights to the states was correct, but that the right to arms was

treated as one of the important individual rights guaranteed by

the Constitution.

In another chapter, Farrar argued that many constitutional

provisions forbid the government to perform acts which it has

no positive power to perform anyway.

426

Pointing to the

constitutional prohibition against the gr anting of titles of

nobility, Farrar noted that even wit hout the prohibition,

Congress had no power to confer honorable titles.

427

Likewise,

the First Amen dm en t pr ohibits Congressional establish men t of

religion and Congressional interference with free exercise of

religion, peaceable assembly, or the right to petition. But what

specific pow er men tion ed in an y par t of the Constitu tion ,

authorizes Congress to tou ch a ny one of these su bject s, for an y

purpose whatever? Why, then, restrict the power? So of “the

right to keep an d bear arm s,” and divers other valuable

comm on-law rights. Obviou sly th ey a re all carefully guarded;

because under the general powers of the governm ent to

provide for t he com mon defence, the general welfar e, and the

blessings of liberty, and to do any thing necessary and proper

for th ose pu rp oses, n othing could be said to be beyond the

legitimate claims of an agent charged with these duties.

428

Farrar was wrong in guessing wh ich particular clauses of

the Constitution would be used to twist the limited powers

given to Congress into unlim ited power. It was per haps beyond

the contemplation of any mid-nineteenth century legal scholar

that the federal powers to tax and to regulate interstate

commer ce would be twisted into power to regulate on any

subject whatsoever. Regardless of the textual source of the

abuse of Congressional power, however, the First and Second

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1478 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

429. Charles Fairman, Recon str uction an d R eun ion, 1864-1888, in 6 HISTORY OF

THE SUPREME C OURT OF THE UNITED STATES 632 (Pa ul A. Fre un d ed., 197 1).

430. See Aynes, supra note 416, at 86 n .174.

431. S ee, e.g., GEORGE W. PASCH AL, PASCH AL’ S ANNOTATED DIGEST (1868).

432. Charles Fairm an, Reconstruction and Reunion, 1864-1888, at 3-4, in 7

HISTORY OF THE SUPREME COURT OF THE UNITED STATES (Pau l A. Freun d & Sta nely

Katz eds., 1987).

433. GEORGE W. P ASCH AL, THE CONSTITUTION OF THE UNITED STATES DEFINED AND

CAREFULLY ANNOTATED (Wash ingt on, D.C., W.H . & O.H. Mor rison 1868).

434. HAROLD M. H YMAN, A MORE PERFE CT UNION 517 (197 3).

435. Aynes, supra note 416, at 87.

436. See id.

437. SAMUEL FREEMAN MILLER, THE CONSTITUTION OF THE UNITED STATES 34

(1880).

Amendments were construed by F arrar as n early identical

clauses, pr otect ing im por tant person al righ ts fr om an

overweening central government.

3. George W. Paschal

A “leading Texas lawyer”

429

and st aunch Unionist , George

W. Paschal was arrested by t he Confederate governmen t of

Texas during the Civil Wa r. Although he had served on the

Arkansas Supreme Court,

430

he spent many of his postwar

years in Wash ington, D.C., where he help ed found t he

Georget own University La w School, wrote books on various

legal topics,

431

and was on e of the “lea ding practitioners” before

the Supreme Court.

432

He authored The Constitution of the

United States Defined and Carefully Annotated in 1868.

433

The

treatise was “an important addition to nationalist

constitutionalism.”

434

Represen ta tive Jonath an Bingham

“endorsed Paschal’s treatise” on several occasions, even urging

the House of Representatives to purchase ten thousand

copies.

435

Representative (and future President) James A.

Garfield cited Pasch al on the floor of Congress, as did

Representative William Lawrence, Senator George Vickers, and

Senator Lyman Trumbell.

436

Supreme Court Justice Samuel

Freeman Miller called Paschal’s treatise a “very valuable

work.”

437

After quoting the Second Amendment, Paschal wrote:

This clause h as reference to a free gover nm en t, and is

based on the idea, tha t the people cann ot be oppressed or

enslaved, who are not first disarmed.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1479

438. P ASCH AL, supra note 433 , a t 256 (ci ta tions om itte d).

439. See Cockrum v. State, 24 Tex. 394 (1859). The first paragraph of Pascha l’s

exposit ion is taken from Cockrum .

440. See PASCH AL, supra note 433, at 133-36.

441. Id. at 133, 135.

442. JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF STATU TOR Y CRIMES

§ 792, at 497 (1873) [hereinafter BISHOP, STATU TOR Y CRIMES]; see also 1 JOEL

PRENTISS BISHOP, C OMMENTARIES ON THE CRIMINAL LAW § 124, at 73 (3d ed.

1865)[hereina fter BISHOP, CRIMINAL LAW]. Bishop was a leading founder of the late

nineteenth centu ry “classical” appr oach to law, although his contribution has been

unjustly overshadowed by Lan gdell and other Ha rvard professor s. S ee St ephe n A.

Siegel, Joel Bishop’s Orthodoxy, 13 LAW & HIST. REV. 215-16 (1 995 ).

The President, by order, disbanded the volunteer

companies of the District of Columbia, in November, 1867. His

right to do so has been denied.

438

Paschal cited Tucker’s Blackstone, Rawle’s Treatise, and the

Texas case allowing an enhanced penalty for use of a bowie

knife in a manslaughter.

439

Paschal’s discussion of the militia clauses in Article I was

more extensive, as he thoroughly covered what had grown to be

an extensive body of case law, governing topics such as when

the militia could be called out and the parameters of federal

control over the militia.

440

The Milit ia, he said, consist s “of the

able-bodied male inhabitants of a prescribed age . . . the body of

arms-bearing citizens, as contradistiguinshed from the regular

army.”

441

4. J oel Bishop

Joel Prentiss Bishop authored important treatises on

criminal law, and in those treatises addressed criminal law-

related constitutional issues in passing. The 1865 third edition

of Commentaries on the Criminal Law and the 1873 first

edition of Com m entaries on th e law of S tatu tory Crim es

contained identical discussions of the Second Amendment:

“This pr ovision is found among the amendments; and, though

most of the amendments are restrictions on the General

Government alone, not on the States, this one seems to be of a

nature to bind both the State and National legislatures; and

doubtless it does.”

442

Bishop obviously adhered to the Standard Model individual

rights view; he viewed the Second Am endm en t as a restriction

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1480 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

443. BISHOP, STATU TOR Y CRIMES, supra note 442, § 792, at 497; see also 1 BISHOP,

CRIM INAL LAW , supra note 442, § 124, at 73-74.

444. Here Bishop cited Nunn v. State, 1 Ga. 243 (1847) (discussing an individual

Second Amendment right to carry unconcealed guns for personal defense), and

Stockdale v. State, 32 Ga . 225 (18 61) (d ecis ion of Con feder at e sta te court ) (reasoning

that a person does not violate law against concealed carry if part of the gun is

visible).

445. BISHOP, STATUTORY C RIMES , supra note 442, § 792, at 497-98 (citing State

v. Jumel, 13 L a. Ann . 399 (1858), wh ich explained that the Second Amendment

guarantees an individual righ t to carr y for per sonal defense, but not to concealed

carry).

on state governments, not a protection of state governments

against the federal government. Bishop continued:

As to its interpretation, if we look to this question in th e light

of juridical reason, without the aid of specific a uthority, we

shall be led to the conclu sion, th at th e pr ovision protect s only

the right to “keep” such “arms” as are used for purposes of war,

in distin ction from those which are employed in quarrels,

brawls, and fights betw een m add en ed indiv idu als; since such,

only, are properly known by the name of “arm s;” and such,

only, are ad ap ted to pr om ote “the secur ity of a free Stat e.”

443

Bishop thus followed the dominant line of state

constitutional case law, exclu ding cer tain weapon s fr om the

scope of the right. Next, Bishop articulated the nineteenth

century’s most restrictive reading of the Second Amendment

righ t to bear arms in a scholarly treatise, although Bishop

acknowledged that there was contrary case law:

In like manner , the r ight to “bear” arms refers m erely to the

military way of using them, not to their use in bravado and

affray. Still, the Georgia tribunal seems to have held, that a

statute prohibiting th e open wear ing of arm s upon th e person

violates this provision of the Constitution, though a statu te

against wearing of the arms concealed does not.

444

And, in

accor d with th e latt er br an ch of t his G eorgia doctrin e, the

Louisiana court has laid it down, that the statute against

carrying concealed weapons does not infringe the

constitutional right of th e people to ke ep an d bear a rm s; for

this statut e is a measure of police, prohibiting only a

particular mode of bearing arms, found dangerous to the

community.

445

Bishop’s contrast between bearing arms in “the military

way” versus using them for “bravado and affray” (such as

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1481

446. To pu t t he me re pos se ssion of guns for home defen se w ith in t he scope of

“bravado and affray” would require a very elastic reading of Bishop’s words.

447. JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF STATU TOR Y CRIMES

§ 792 , at 5 36 (3 d ed. 1901 ).

shooting them off at New Year’s, or using them in duels), does

not explicitly state Bishop’s views on carryin g gu ns for personal

defense. But Bishop’s acknowledgment of Nunn v. State (a case

guaranteeing a right to carry unconcealed firea rms for person al

protection) as a case contrary to Bishop’s own position suggests

that Bishop opposed gun carrying for personal defense.

446

Read in the most restrictive light possible, Bishop’s treatise

suggests: (1) t he Secon d Am endment guarantees a right of

individuals to own guns; (2) the right’s sole purpose was

insurrection against tyranny; (3) the arms which could be kept

included only arms suita ble for warfare; and (4) the right to

“bear” arms included only the right to carry arms in public

during militia activity.

There is no nineteenth century commentator who appears

more dubious about the Second Amendment than Bishop. All of

the restrictions articulated by Bishop were, at the least, well-

grounded in at least one branch of nineteenth century case law.

It is important to recognize that, as restrictive as Bishop’s

approach is, it is clearly an individual rights one, comfortably

within the Standard Model.

The 1901 ed ition of Statu tory Crim es condensed t he Second

Amendment discussion, emphasizing that the Second

Amendment is “declaratory of personal rights” but (like most of

the rest of the Bill of Rights) does not bind the states:

It is among th e older a men dm en ts, most of which ar e held t o

be restrict ions on th e n at ional pow er , and not to bind the

states. This one is declaratory of personal righ ts , so also a re

som e of the others which are adjudged not to extend to the

states; and, contrary perhaps to some former views, it is now

settled in authority that this provision has no relevancy to

stat e legislat ion.

447

5. J ohn Norton Pom eroy

New York University law professor John Norton Pomeroy

was “one of the ten top law teachers in nineteenth century

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1482 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

448. THO MAS GARD EN BARNES, HASTINGS COLLEGE OF LAW: THE FIRST CENTURY

89 (1978).

449. See Bar bar a Allen Babcock, Clara Shortridge Foltz: “First Woman”, 28 VAL.

U. L. REV . 1231, 126 6 (1988).

450. See Siegel, supra note 379, at 1453 n.89.

451. See JOHN NORTON POMEROY, A TREATISE ON EQU ITY J URISPRUDEN CE (5th ed.

194 1); J OHN NORTON POMEROY, POMEROY’S EQUITABLE REMEDIES (191 9); Robert G.

Bone, Mapping the Boundaries of a Dispute: Conceptions of Ideal Lawsuit S tructure

from th e Field Code t o th e Fed eral Rules, 89 COLUM. L. REV. 1, 27 n.63 (1989) (“Many

considered his tr eatis e on equ ity jur ispru den ce . . . t he lea din g wor k on the subject

during th e la te ni ne te en th an d ear ly t went iet h ce nt ur ies .”).

452. See JOHN NORTON POMEROY, AN INTRODUCTION TO MUNICIPAL LAW (2d ed.

188 6); J OHN NORTON POMEROY, A TREATISE ON THE LAW OF WATER RIGHTS (189 3);

JOHN NORTON POMEROY, A TREATISE ON THE SPECIFIC PERFORMANCE OF CONTRACTS

(2d ed. 1874); J OHN NORTON POMEROY, CODE REMEDIES (4th ed. 1904); JOHN NORTON

P OMEROY, LECTURES ON INTE RNAT IONAL LAW IN TIME OF PEACE (1886); JOHN NORTON

P OMEROY, REMEDIES AND REMEDIAL RIGHTS BY THE CIVIL ACTION ACCORDING TO THE

REFORMED AMERIC AN PROCEDURE (3d ed. 1894). The Cod e Rem edies book “was the

seminal lat e n ine te enth centu ry work on th at subject .” Bone, supra note 451, at 27

n.63.

453. JOHN POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE

UNITED STATES (187 0).

454. See JOHN POMEROY, AN INTRODUCTION TO THE CONSTITUTIONAL LAW OF THE

UNITED STATES (8th ed. 1885); Bone, supra note 451, at 27 n.63 (year of Pomeroy’s

death).

455. See Siegal, supra note 379, at 1469 n.201.

456. See Aynes, supra note 416, at 90.

America.”

448

Pomeroy moved to California, where he led the

founding of the Hastings College of Law

449

(the first three-year

law school in the American West),

450

and served as the reporter

for the California Supreme Court. His treatise on equity

endured for decades as the leading authority on the subject,

451

and his treatises on municipa l law, contracts, water law, and

other subjects were also important, continuing for many

editions.

452

But of all Pomeroy’s books, the one that was apparently

most in demand was An Introduction to the Constitutional Law

of the United States.

453

First published in 1870, the book went

through eight editions until Pomeroy’s death in 1885,

454

plus a

posthumous edition in 1888.

455

Pomeroy’s constitutional treatise

was known nationally and used as a textbook at West Point and

other colleges.

456

Prefatory to his discu ssion of the cla uses of t he Bill of

Rights following the First Amendment, Pomeroy stated,

“[W]hatever construction is given to these clauses, will also

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1483

457. P OMEROY, supra note 454, at 152.

458. Id. at 152-53.

459. Id. at 152.

460. Id.; cf. 3 STORY, supra note 106, at 746-47.

apply to the same or similar provisions in the state

constitutions.”

457

He wrote:

1. The righ t of t he p eople t o ke ep and bea r a rm s. The object of

this clause is to secure a well-regulated m ilitia. It has always

been the policy of free governm ents to dispense, as far as

possible, with standing armies, and to rely for their defence,

both against foreign inva sion an d domestic t urb ulen ce, upon

the militia. Regu lar ar mies h ave alwa ys be en associat ed w ith

despotism. But a militia would be useless unless citizens were

allowed to exercise themselves in the use of warlike weapons.

To preserve this privilege, and to secure to the people the

ability to op pos e t hem selves in military force against

usurpations of the government, as well as against enemies

from withou t, tha t governm en t is forbidden by any law or

proceeding to invade or destroy the right to keep and bear

arm s. Bu t a ll su ch pr ovisions, a ll su ch guarantees, must be

construed with reference to their intent and design. This

constitutional inh ibition is certa inly not violat ed by laws

forbiddin g per sons to carry dangerous or concealed weapons,

or laws forbidding the accumulation of quantities of arms with

the design to use them in a riotous or seditious mann er. The

clause is analogous to t he on e secu ring freedom of speech and

of the pr ess. F re edom, not license, is secu red; the fair u se, not

the libelous abuse, is protected.

458

Pomeroy’s analysis succinctly distills the nineteenth century

Standard Model. St anding armies were still considered

dangerous. The militia was to be secured by guaranteeing a

right of individual cit izens “to exercise them selves in the use of

warlike weapons.”

459

Lik e J oseph St ory, Pomeroy saw nothing

inconsistent with the role of the people’s militia in suppressing

“domestic turbulence”and the Second Amendment’s purpose “to

secure to the people the ability to oppose them selves in military

force against usurpations of the government .”

460

Repu blican

order could be disturbed by domestic riots or domestic tyrants;

the Second Am endm ent wa s t o ensu re t he defeat of both.

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1484 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

461. “Th e people themselves, the entire mass of persons who compose the

political society, are the true nation, the final, permanent depository of all power. The

organized govern me nt , wh at ever b e it s for m a nd cha ra cter, is but the creature and

servant of the political u nit . . . .” JOHN POMEROY, AN INTRODUCTION TO

CONS TITU TION AL LAW OF THE UNITED STATES 28 (9th ed. 1888).

462. Id. at 220.

463. Id. at 718.

To Pomeroy, the essence of th e nation was t he people of t he

United States, not the government they had erected.

461

Therefore, the people’s sovereignty “still potentially exist[s] in

the nation, ready to be called forth whenever the people shall

see fit . . . to put their inherent, paramount force in motion.”

462

Consisten t with Cruikshank, Pomeroy saw the limitations

expressed in the Bill of Rights not as grants by the government

of certain rights to the people, but instead as safeguards

created by the people

to protect the private righ ts wh ich exist an terior to all

governments . . . these lim ita tion s, I sa y, are th e very por tion s

of th e con stitu tion wh ich, m ore than all other s, should r eceive

a broad, extensive, liberal inte rpr et ation in favor of th e citizen

against the government[]. All experience shows that these

fundamental righ ts ar e the most exposed t o injurious

legislation ; and it often needs the whole moral force of t he

judicia ry to shield th em from invasion .

463

Pomeroy, consistent with explicit state constitutional

provisions and state case law from the post-war years, thought

there were excep tions to the right to arms: carrying concealed

weapons and seditious accumulation of weapons. These

exceptions, which only make sen se as exceptions t o an

individual right, not to a state government right, are the

except ions which prove the rule: the Second Amen dment, like

the First Amendment, is an individual right, but abuse of the

right is not constitutionally protected.

6. Oliver Wendell Holm es, J r., an d J am es Kent

Oliver Wendell Holmes, J r., was a distinguished legal

scholar and professor of law a t Harvard. Servin g on the

Massachusetts Supreme J udicial Cou rt, he became one of the

most important judges of the nineteenth century. His three

decades of service on the United States Supreme Court have

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1485

464. J AMES KENT, COMMENTARIES ON AMERICAN LAW (O.W. Holmes, J r. ed.,

Boston, Lit tle, B rown 12t h e d. 1873 ).

465. See 1 id. at *262-67. All citations to Kent use the star pagination system,

which is k eyed to th e fir st edition .

466. 2 id. at *15.

467. Id. Lawrence Cress uses the fact that “James Kent does not mention the

right to bear arms among the individual rights guaranteed in English tradition and

Ame ri can law” to bolster the argument that the Second Amendment protects the

authority of stat e govern men ts, n ot th e righ t of individua ls. Cress, supra note 2, at

42 n.48. Cr ess cites Ke nt ’s discu ssion of person al r ights in t he secon d volu me of th e

Com m ent ari es on pages 1-13. See id. But in fact, there are many individual

constitutional rights wh ich Kent did n ot mention in these pages, such as t he right

to as sem ble, th e r ight t o pet ition, a nd protection from unreasonable searches and

seizures. Cress’s citat ion to Kent term inates in the middle of Kent’s discus sion of

personal rights, rather than at the end of a section. Cress thereby avoids directing

the reader’s attention to the last full page of the section, in which Kent discussed and

praised the individual right to self-defense.

made him the m ost wid ely rem embered legal scholar from the

nineteenth century. But in 1873, Holmes was only at the

beginning of his legal career when his first book was published,

an annotated edition of Chancellor James Kent’s Com m entaries

on American Law.

464

Chancellor Kent’s multi-volume commentaries, first

published in 1826, had displaced Tucker’s American Blackstone

as the leading American law book. Kent’s Com m entaries had

systematically discussed the main body of the Const itution,

including the Congressional militia powers.

465

The

Com m entaries did not include a syst ematic analysis of

amendments to the Const itution, and Kent sa id nothing abou t

the Second Amendment, although he did extol self-defense as

one of th e absolute r igh ts of Am erican citizens. Americans have

“the natural right of self-defence, in all those cases in which the

law is eit her too slow or too feeble t o st ay the h and of

violence.”

466

Kent explained that homicide in self-defense is

justifiable, not merely excusable, an d that the right to self-

defense “cann ot be superseded by the law of society.”

467

Holmes added his own annotations to Kent’s Com m entaries,

and Holmes did a ddress t he r igh t to arms. In a discu ss ion of

the police power, Holmes observed:

As the Constitution of the United States, and the constitutions

of sever al of th e sta te s, in term s m ore or less comprehen sive,

declar e the right of the people to keep and bear arms, it h as

been a su bject of grave discussion, in some of the sta te courts,

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1486 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

468. 2 KENT, supra note 464, at *340 n.2.

469. Id.

470. See POUND, supra note 380, a t 30 n .2.

471. See Pa ts one v. Pe nn sylva nia, 232 U.S. 1 38 (1914 ).

472. See id. at 143. Holmes cited s eve ra l cases affirm ing st at e a ut hor ity to control

the ta kin g of gam e: Lawton v. Steele, 152 U.S. 133 (1894) (holding that a ban on the

use of nets for fishing on rivers is within police power; the preservation of game is

a core compone nt of th e police power ); S ilz v. H esterber g, 211 U.S. 31 (19 08) (holding

that the fourteenth amendment was n ot violat ed by a s ta te law bann ing hu nt ing of

certa in birds dur ing cer ta in seas ons); Purit y Extract Co. v. Lyn ch, 226 U.S. 192 (1912)

(quoting Silz fav orably).

In treating Patsone as a pure hunting cas e, Holmes willfully ignored the facts.

Despite the legislative declaration, the Patsone statute had been passed ver y shortly

after a violent incident involving immigrant mine workers. S ee G. Edward White,

Oliver Wendell Holmes, Jr., in THE SUPREME COURT JUSTICES: A BIOGR APH ICAL

DICTIONARY 225, 228 (Melvin I. Urofsky ed., 1994). The stat ute was, like earlier

English stat utes, condemned by Blackstone, Tucker, and Rawle, ost en sibly for th e

prese rvat ion of game, but a ctually for the protection of the existing govern men t. See

supra notes 36-39, 61, 96, 120 and accompanying text.

473. Patsone, 232 U.S. at 143.

wheth er a statute prohibiting per sons, wh en n ot on a journey,

or as tr av ellers , from wearing or carrying concealed weapons,

be constitu tion al. Th ere h as bee n a great differ en ce of opin ion

on th e qu estion .

468

Holmes then noted the states and ca ses wher e such restrictions

had been found unconstitutional (Kentucky, Tennessee, and

Mississippi) and the states where such restrictions had been

upheld (Indiana, Alabama, and Arkansas). Holmes concluded

with his own opinion that “[a]s the practice of carrying

concealed weapons has been often so atrociously abused, it

would be very desirable, on principles of public policy, that the

respective legislatures should have the competent power to

secure the public peace, and guard against personal violence by

such a precautionary provision.”

469

Holmes, like James Kent, Thomas Cooley, and Joseph

Story, earned a place on Roscoe Pound’s list of the ten greatest

Am er ican judges.

470

As a jurist, Holmes made two more

contribu tions to self-defense jurisprudence. In Patsone v.

Pennsylvania, he upheld a state statute which barred aliens

from possessing rifles and shotguns.

471

Holmes observed that

the purpose of the statute was to preserve the game for

consumption by Americans.

472

And he explained that the

statute “does not extend to weapons such as pistols that may be

supposed to be needed occasionally for self-defence.”

473

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1487

474. 256 U.S. 3 35 (1921 ).

475. Id. at 342.

476. Id. at 343. This echoes Holmes’ observation in his classic 1881 book, The

Com m on Law, that “[t]he life of the law has not been logic: it has been experien ce.”

O.W. HOLMES, JR., THE COMMON LAW (188 1).

477. Br own, 256 U.S. at 343; cf. O.W. Holmes, J r., George Otis S hatt uck , in THE

OCCAS ION AL SPEECHES OF JUSTICE OLIVER WENDELL HOLMES 92, 95 (Mark DeWolfe

Howe ed., 1962) (“I t is one thing to utter a happy phr ase from a protected cloister;

another to think under fire—to think for action upon which great interests depend .”).

478. See Car rington, supra note 381, at 516.

479. BLACKSTONE, supra note 403.

480. Herbert E. Broom au thored a number of tr eat ises. See, e.g., HERBERT

BROOM, COMMENTARIES ON THE COMMON LAW: DESIGNED AS INTRODUCTORY TO ITS

But Holmes’ most important work in a self-defense case was

the 1921 decision Brown v. United States.

474

The Brown case

began at a feder al naval ya rd in Texas. A man named Hermis

had twice assaulted Brown with a knife, and warned that the

next time, either Herm is or Brown “would go off in a bla ck

box.”

475

One day, Hermis again attacked Brown with a knife;

Brown ran to get his coat, which contained a pistol. Hermis

pursued, and Brown shot him four times, killing him. At trial,

the judge instructed the jury that Brown had a duty to retreat,

if he could do so safely.

Justice Holmes, a legal historian, traced the duty to retreat

rule to an earlier period in English history, when the law did

not even recognize a legal r ight of self-defense. “The law has

grown ,” Holmes wr ote, “in the direct ion of rules consistent with

human nature.”

476

Thus, declared Holmes, there is no legal duty

to retrea t before using dea dly force. Nor should a victim’s

response to a criminal attack be second-guessed at leisure by a

judge: “Detached reflection cannot be demanded in the presence

of an uplifted knife.”

477

7. Editions of Bla ckst one

By the la te ninet eenth cen tury, Am er ican law had come a

long way from the days when Tucker’s American Blackstone

was the only law book available. But Blackstone was still the

first treatise read by most would-be lawyers, and the only law

book read by some.

478

Thomas Cooley’s edition of Blackstone,

479

while benefit ting from its author’s great pr estige, wa s n ot the

only updated edition available. English law professor Herbert

Broom

480

and Edward A. Hadley had their own edition, pub

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1488 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

STUDY (reprint ed. 1997 ); HERBERT BROOM, LEGAL MAXIMS (W. J. Byrne ed., 9th ed.

192 4); HERBERT BROOM, SELECTION OF LEGAL MAXIMS CLASSIFIED AND ILLUSTRATED

(reprint ed. 1971); HERBERT BROOM, THE PHILOSOPHY OF LAW: BEING NOTES OF

LECTURES DELIVERED DURING TWENTY-THREE YEARS (1852 TO 1875 IN THE INNER

TEMPLE H ALL) ADAPTED FOR STUDENTS (reprint ed. 1980); E. HILTON JACKSON &

HERBERT BROOM, LATIN FOR LAWYERS (1992) (1915). Broom taught at the Inns of

Court, in London. The Maxim s was “enormously successful” and enjoyed ten editions,

from 1845 to 1939. S ee Simp son, supra note 96, at 647.

481. WILLI AM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Herbert

Broom & E dwar d A. H ad ley eds., 1875).

482. 1 id. at 121 n.64.

483. See supra text accompanying note 152.

484. See supra text accompanying notes 246-54.

485. See supra notes 394-95 and accompa nying text.

486. See Stephen Bot ein, William Draper Lewis, in DICT. AM. BIO., supra note 90;

Korematsu v. United Sta tes, 323 U.S. 214 (1944 ); see also WILLIAM D. LEWIS & A. Q.

KEASBEY, MISCELLANEOUS WRITINGS OF THE LATE HON. JOSEPH P. BRADLEY AND A

REVIEW OF HIS J UDICIAL RECORD (188 6).

487.

A defe nce of the right to carry concealed deadly weapons—delivered,

however, in a dissenting opinion in Andrews v. State, 3 Heisk. (Tenn.) 199

lished in 1875.

481

The Broom and H adley a nnotation about

Blackstone’s description of the English right to arms quoted the

Second Amendment, and pointed out: “The constitutions of

several of the states contain a simila r clause. Th e righ t of

carrying arms for self-protection was discussed in Bliss v.

Commonwealth, 2 Lit. 90; Nunn v. State, 1 Kelly, 243; and Ely

v. Thompson, 3 A.K. Marsh. 73.”

482

The citations suggest a

rather st rong prodefen se inclin ation on the part of Broom and

Hadley, since they are the three strongest cases from the

nineteenth century involving an individual right to arms. Bliss

declared a law against concealed carry unconstitutional;

483

Nunn declared a law against open carrying unconstitutional,

while extolling the right to arms;

484

and Ely held that free

people of color had a right to use force t o defend themselves

against criminal attacks by whites.

485

William Draper Lewis was a leading Progressive, the Dean

of the University of Pennsylva nia La w School, t he fir st Dir ect or

of the American Law Institute, and one of the attorneys who

wrote the American Civil Liberties Union’s amicus brief in the

Korematsu case.

486

Lewis’s 1897 edition of Blackstone, like

Broom and Hadley’s Blackstone, explicated an individual

Second Amendment right, but cited Andrews v. State to show

that concealed carry restrictions were lawful.

487

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1489

(187 1). That the right of carrying arms as secured by t he U.S . cons tit ut ion,

and gener ally by State constit utions, does n ot includ e the habitual carrying

of concealed deadly weapons by private individuals.

1 WILLI AM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 144 n.91 (William

Draper Lewis ed., 1897 ).

488. Paul Fin kelm an, Legal E th ics a nd Fu git ive S laves: The A nt hon y B ur ns Cas e,

Judge Loring, and Abolitionist Attorneys, 17 CARDO ZO L. REV. 179 3, 1836 (1996).

489. See Allen D. Boyer, Book Review, Logic an d E xperience: The Origin of

Modern Am erican L egal E du cati on, 80 CORNELL L. REV. 362 (1995).

490. See Robert W. Gordon , The Case For (and Against) Harvard, 93 MICH. L.

REV. 1231, 1233 (1995) (recounting how one student stopped taking notes in Parsons’

class in October , writing in h is notebook “at th is point Parsons became Pathetic!”).

491. See E. Allan Farnsworth, Contracts S cholarship in the Age of the Anth ology,

85 MICH. L. REV. 1406, 1 408-09 (1 987 ).

492. THEOPHILUS PARSONS , THE PERSONAL AND PROP ER TY RIGH TS O F A CITIZEN OF

THE UNITED STATES: HOW TO EXERCISE AND HOW TO PRESERVE THEM (Hartford, S.S.

Scran ton 187 6).

8. Theophilus Parsons

Theophilius Parsons was the son of the renowned

Theophilus Parsons, Chief Justice of the Massachusetts

Supreme Judicial Court from 1806 to 1813. The younger

Parsons was “a successful insurance and admiralty lawyer”

488

who later taught contracts at Harvard Law School.

489

Although

Parsons was a poor lecturer,

490

he wrote several treatises,

491

including a very popular one on contract law, which Samuel

Williston later took over as r evisor and editor.

In 1876, Parsons wrote, for a nonlegal audience, The

Personal and Property Rights of a Citizen of the Un ited

States.

492

Parsons’ treatment of the Second Amendment came as

part of his three paragraph chapter “Military Rights and

Duties.” After describing federal militia powers, he wrote:

“Militia” undoubtedly means the body of arms-bea rin g citizens,

as distinguished from the regu lar army. In 1863 Congress

passed an act declaring that all citizens of the United States,

&c., “are hereby declar ed t o const itu te the national forces, a nd

shall be liable to perform military duty in the service of the

United States, when called out by the President for that

purpose.” In New York it has been held that this act was

unconstitut ional, and in Pennsylvania that it was

constitutional; both the decisions being by single judges.

The second article of th e a men dm en ts to t he constitu tion

provides that a well-regulated militia being necessary to the

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1490 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

493. Id . at 189.

494. See H. VON HOLST, THE CONSTITUTIONAL LAW OF THE UNITED STATES OF

AMERICA (Alfred Bishop Mas on tr an s., Ch ica go, Calla ghan 188 7).

495. Id. at 230.

496. H. VON HOLST, THE CONSTITUTIONAL AND POLITICAL HISTORY OF THE UNITED

S TATES (John J . Lalor trans., Chicago, Callaghan 1885) (first published in 1873, as

Verfassung un d D em okr atie der Verein igt en S taaten).

497. 5 id. at 306-07. Cont ra ry to the tit le chosen by th e Amer ican p ublis her , the

book is rea lly a constitutional hist ory from 1750, with an eye on even ts lea ding to the

slavery crisis. See Hermann Edward von Holst, in DICT. AM. BIO., supra note 90.

Holst had lived in America for many years, after being exiled for writing a pamphlet

opposing Prussian dictatorship. His eight volume opus was published after he was

security of a free State, the right of the people to keep and

bear arms shall not be infringed.

493

Since Parson s h as n othing to sa y about the Second

Amendment, other than to quote it, it is difficult to discern his

views, if any, on the subject. Thus, he is the only nineteenth

century commentator whose statement about the Second

Amendment may be sa id not to take a St anda rd Model position.

9. A foreigner’s vantage: von Holst

In 1886, Dr. Hermann Eduard von Holst, a member of the

German Privy Council and professor at the University of

Freiburg, authored a treatise on American law for a European

audience.

494

After quoting the Second Amendment, he noted

that

It has th erefore been ar gued th at th e con stitu tion al provision

refers only to arms necessary or suitable for the equipment of

militia; although it must not be inferred from this that the

right is restricted to those citizens who belong to the m ilitia.

As to whether or not the bearing of other arm s can be

forbidden, judicial decisions are far apart. It is, however,

gen erally admitted that the secret ca rrying of arms can be

prohibited.

495

Holst also authored an eight-volume treatise entitled,

Constitutional and Political History of the United S tates.

496

devoted several chapters to the pre-Civil War troubles in

Kansas and noted, “The gover nor and t he federal dragoons

were very active in the discovery and con fiscation of ar ms,

although the possession of bearing of arms is a right of every

American, guaranteed by the constitution.”

497

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1491

allowed to return to Germany; the books’ moral fervor and devotion to freedom made

them highly readable, in spite of their length. Holst ’s r epu ta tion w as of su ch

magnitude that he was chosen to hea d th e History Department at the new University

of Chicago in 1892. See id.

498. See 1 J. I. CLARK HARE, AMERICAN CONSTITUTIONAL LAW (Boston, Little,

Brown 188 9); see also Fr ancis Sam uel P hilbr ick, John Innes Clark Hare, in Dict . AM .

BIO., supra note 90.

499. 1 HARE, supra note 498, at 521-22 (citations om itted).

500. See id.

10. John Hare

Thus far, none of the la te ninet eenth century commen tators

had dealt with Cruikshank and Presser in much detail. In

contrast, Pennsylvania state district judge John Hare’s treatise

American Constitutional Law addressed the Second

Amendment exclusively through the lens of two recent Supreme

Court cases.

498

Hare wrote:

[T]h e Second Amendm ent, which declares, “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,”

neither confers the right so guar an teed n or la ys a ny restra int

on the States. They may make any regu lation wh ich does n ot

impa ir the prerogative of the Gen eral Governm ent to ca ll fort h

all citizens cap ab le of bear ing arm s for th e public defen ce, or

disa ble the people from performing their duty in response to

such a behest.

So the right volunta rily to as socia te as a m ilitar y com pa ny

or organ ization , or to drill and parade with arms, is not an

attribute of national citizenship, but m ay be re gu late d by ea ch

State and forbidden to any company or body of men who are

not duly organized for that end, according to her laws or those

passed by Congress under the power to provide for organizing,

arming, an d d isciplining the m ilitia. Su ch a conclu sion is the

more necessary beca use th e a uth ority of the General

Government in this behalf is so limited a s to be practically a

dead letter; a nd if it were held to be exclusive of the States, an

important arm of national defence an d for th e su pp re ssion of

riot and insurrection would be impotent.

499

The above quotation contains t wo pinpoint cites to Presser.

500

Hare’s next paragraph observed that, similarly, the right to

practice law in a state court was not an attribute of national

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1492 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

501. See id. at 522.

502. Id.

503. Scott v. Sa nfor d, 60 U.S. (19 H ow.) 39 (1856); see Car l Russell Fish, George

Ticknor Curtis, in DICT. A M. BIO., supra note 90.

504. His broth er Ben jam in C ur tis ser ved on t he U.S . Su pr eme Cou rt .

505. See GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT (1847);

GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF PATENTS (1849 ); GEORGE

TICKNOR CURTIS, COMMENTARIES ON THE JURISDICTION, PRAC TICE, AND PECU LIAR

citizenship, but depended exclusively on the la ws of th e

relevant state.

501

He continued:

The prohibitor y articles of th e Con stitu tion wer e crit ically

considered by Chief-Justice Waite in The United States v.

Cruikshank in an opinion which gives a clear and consistent

view of their operation on the United States, the States, and

the people, and defines th e limits within which they may be

enforced by Congress. The case arose out of an indictment

containing numerous counts, drawn under a statute which was

held to be invalid because the clauses relied on for it s supp ort

sim ply disa ble the States or the General Gover nmen t, w ith out

imposin g any duty or restraint on individu als, a nd

consequ en tly do n ot a fford a grou nd for penal legislation .

502

Hare’s exposit ion of Presser and Cruikshank was fully

consistent with the Standard Model. Presser removed the

Second Amendment as a barrier to state gun control, except to

the extent that a state law might interfere with federal militia

powers. Cru ikshank stood for the principle that the Fourteenth

Amendment does not grant Congress power to legislate against

nongovernmental conduct. The language in the first paragraph

that the Second Amendment does not “confer[] the right so

guaranteed” tracked Cruikshank’s language that the Second

Amendment (like the First Amendment right of assembly)

guaranteed a pre-existing human right, rather than conferring

a new right.

11. George Ticknor Curtis

George Ticknor Curtis achieved national fame as the losing

lawyer in the Dred Scott case.

503

Ther eafter , he enjoyed a long

career as a Washington lawyer, and fr equently practiced before

the Supreme Court.

504

George Curtis was also a pr odigious

author of important treatises on jurisprudence, equity,

admiralty, and intellectual property.

505

His modern importance,

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1493

JURISPRUDEN CE OF THE COURTS OF THE UNITED STATES (2 vol s. 1 854 & 1858); GEORGE

TICKNOR CURTIS, DIGEST OF CASES ADJUDICATED IN THE COURTS OF ADMIRALTY OF THE

UNITED STATES, AND IN THE HIGH COURT OF ADMIRALTY IN ENGLAND (1839); GEORGE

TICKNOR CURTIS, EQU ITY PRECEDE NTS (1850 ); GEORGE TICKNOR CURTIS , TREATISE ON

THE RIGHTS AND DUTIES OF MERCHANT SEAMEN (184 1).

506. Fish, supra note 503, at ¶ 3.

507. Regarding the Tenth Amendment , Curtis ar gued tha t the reser vat ion of

power “to the states or to the people” meant the “people” as citizens of particular

states, “not the people of the United States, regarded as a mass.” 2 GEORGE TICKNOR

CURTIS, CONS TITU TION AL HISTORY OF THE UNITED STATES: FROM THEIR DECLARATION

OF INDEPE NDENCE TO THE CLOSE OF THEIR CIVIL WAR 160 n .1 (J oseph Culb erts on

Clayton ed., 1896). Espousing the th eory th at th e Con stitution was created by the

people through the st ates—and not by the people of the nation d irectly—Curtis wrote:

“The ‘people of th e Unit ed S ta te s,’ rega rded a s a na tion , ha ve n o powers of

government—they have the power to make a revolut ion.” Id.

508. Id. at 155.

509. See id. at 159.

510. See id. at 491.

however, is based mainly on his two volume Constitutional

History of the Un ited States: From th e Declaration of

Independence to the Close of Their Civil War. “This work is the

classic treatment of the Constitution from the Federalist,

Websterian point of view.”

506

The creation of the Constitution, and the causes and

aftermath of the Civil War were Cur tis’s primary focus, and his

atten tion to the Bill of Rights was cu rsor y. In his chapt er on the

Bill of Rights, Curtis focused on the Ninth and Tenth

Amendments as limitations of federal power, and offered no

ela boration about any of the first eight amendments.

507

But

Curtis did plainly treat the Second Amendment as an

individual righ t—one of the “rights of persons”—like the rest of

the first eight. Explaining the controversy that led to the

creation of the Bill of Rights, Curtis noted that the human

rights provisions in the text of the Constitution (such as the

prohibition on ex post facto laws) “did not secure the rights of

persons as they were provided for in eight of the amendments,

and, above all, they did not reach the very im por tant

declarations contained in the ninth and tenth.”

508

Curtis added

that amendments in the Bill of Rights wer e r estrictions on ly on

the federal government, not the states.

509

Volume II contained

an annotated appen dix, in wh ich Su pr em e Court case citations

were placed next to the provision to which they pertained. The

only citation that Curtis gave for the Second Amendment was

to Presser v. Illinois.

510

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1494 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

511. S ee, e.g., JOHN C. ORDRONA UX, COMMENTARIES ON THE LUN ACY LAW OF NEW

YORK AND ON THE JUDICIAL ASPECTS OF INSANITY AT COMMON LAW AN D IN EQUITY

(1878); J OHN C. ORDRONAUX, JUDICIAL PROBLEMS RELATING TO THE DISPOSAL OF

INSANE CRIMINALS (188 1); J OHN C. ORDRONAUX, THE PLEA OF INSANITY AS AN ANSWE R

TO INDICTMENT (1880); S ee also G. Alder Blumer, John Ordronaux, in DICT. AM. BIO.,

supra note 90.

512. JOHN ORDRONAUX, CONSTITUTIONAL LEGISLATION IN THE UNITED STA TES: ITS

ORIGIN, AND APPLICATION TO THE RELATIVE POWERS OF CONGRESS, AND OF STATE

LEGISLATURES (189 1).

513. Ordronaux was using a Spanish spelling; the English spelling is “bandoliers,”

meaning “A shoulder-belt for holding a mm unition, (Hist.) with s ma ll ca ses each

containing a cha rge for a musket , (now) with small loops or pockets for carr ying

cart ridges.” 1 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 177 (199 3).

514. By the rude bridge that arched the flood,

Their flag to April’s breeze unfurled,

Here once the embattled farmers stood,

And fired the shot heard round the world.

Ralph Waldo Emerson, “Concord Hymn ” (recit ed a t t he comp let ion of t he Concord

Monument, J uly 4, 183 7).

12. John C. Ordronaux

The 1890s saw a significant accelerat ion in the publication

of legal treatises. Columbia law professor John Ordronaux, who

also held a medical degree, wr ote extensively on issu es of

criminal law and mental health.

511

He also wrote Constitutional

Legislation in the United States in 1891.

512

Ordronaux stated:

The right to bear arms ha s alwa ys been the distinctive

privilege of freemen. Aside from any necessity of self-

pr otection to the per son, it repr esent s among all nations power

coupled with the exercise of a certain jurisdiction. From tim e

immemorial th e sw ord ha s been th e scep tr e of military

sovereignty. From this arose the profession of arm s, as a

distinctive calling in every age. Exposed as our early colonists

were to the atta cks of sa va ges , th e possession of ar ms beca me

an indispensable adjunct to the agricultural implements

employed in th e cultivat ion of th e soil. Men went armed into

the fields, and went a rmed to church. There was a lways public

dan ger. Th is was recognized by t he la ws of th e P lym outh

Colony, which requ ired tha t “each person for himself have

piece, powder, and shot—viz., a sufficient musket or other

ser viceable piece for wa r, with bandeleroes,

513

swords, and

other appurtenances for himself, and each man-servant he

kept able to bear arms.” And another ordinance required that

men should go armed to church. Whence it followed that the

“embattled farmers”

514

of the Revolution naturally enough

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1495

515. ORDRONAUX, supra note 512, at 241-42 (footnotes omitted). For the last

sentence, Ordonona ux cited a lett er by John Adam s. John Adam s, Letter to Abbé

Mably, in 5 WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES: WITH

A LIFE OF THE AUTHOR 495 (Charles Francis Adams ed., 1850-56), also cited in

ORDRONAUX, supra note 512, at 242 n.2.

516. ORDRONAUX, sup ra note 512, at 242. Besides Cruikshank, Ordronaux cited

State v. Hewson [sic “Newsom”], 27 N.C. 350, 5 Ired. 35 (1 844 ) (upholding a law

against possession of weapons by free people of color, since they are not parties to

the constitutional compact); and Fife v. State, 31 Ark. 455 (1876) for th e natural right

proposition. See id. at 242 n.3.

517. Id. at 242.

518. Id. at 242-43 (e mp ha sis in origin al ).

beca m e th e m inute men of Con cord an d Lexin gton, and the

founder s of our na tional system of militia.

515

Next, Ordronaux cited Cruikshank for the “arms as a

natural right” view:

Therefore, it was not n ecessary that the right to bear arms

should be granted in the Constitution, for it had always

existed. It is n ot in consequ en ce depen dent u pon th at

instrument, and is only mention ed th erein as a r estr iction

upon the power of the national government against any

attempt to infringe it. In other words, it is a right secured and

not created.

516

Wit hout citing Presser, Ordronaux stated that “this prohibition

is not upon the States, whose citizens are left free in respect to

the extent of their enjoyment or limitat ion of the right.”

517

Because “arms” were meant “in its milita ry sense alone,”

states could regulate the carrying of arms. “Thus, the carrying

of concealed weapon s m ay be absolutely pr ohibited wit hout the

infringement of any constitutional right, while a statute

forbidding the bearing of arms openly would be such an

infringement.”

518

Further , states could require permits for

armed assemblies in public, or for the carrying of concealed

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1496 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

519. See id. at 243 (citing Presser v. Illinois, 116 U.S. 252 (1886) (holding that

the Secon d Amen dmen t is not a limit on state governm ent); Nunn v. State, 1 Ga. 243

(1847) (holding that the Second Ame nd me nt gu ar an te es an individu al right t o car ry

arms for p er son al defens e, but not to ca rr y concealed ); St at e v. J um el, 13 La. Ann .

399 (1858) (same holding as Nunn); Stat e v. Smith, 11 La. Ann. 633, 66 Am. Dec. 208

(1856) (same holding as Nunn); State v. Chandler, 5 La. Ann. 489 (1850) (same

holding as Nunn); Andrews v. State, 50 Tenn. (3 Heisk.) 165 (1872) (esta blishing an

individual Secon d Amendm en t r ight t o carry unconcealed arms for personal defense;

the Ame nd me nt en compa sses al l arm s u sa ble in “civilized wa rfa re ”)).

520. See ORDRONAUX, supra note 512, at 243.

521. See JOHN R. GALVIN, THE MINUTE MEN: THE FIRST FIGHT: MYTHS AND

REALITIES OF THE AMERICAN REVOLUTION (1989) (publish ed in con junction with the

Institute of La nd Warfa re Associa tion of th e U .S. Arm y); ROBERT A. GROSS, THE

MINUTEM EN AND THEIR WORLD 59 (1 976 ).

522. See Ph ysi cian s in Pu blic Service to A m erica, POLIT ICAL STETHOSCOPE,

Summ er 1996 (visited Feb. 6, 1998) <http://www.ama-assn.org/ad-com/roots/

pol_edu/stetho.htm>.

weapons by even a single person .

519

Ordronaux concluded with

a paragraph summarizing state and federal militia powers.

520

Modern scholars might quibble with some of Ordronaux’s

historical details. We now know, for example, that the

Minutemen were not the same as the militia; the Minutemen

were a smaller group, who received extra training.

521

The issue

for this article, though, is not whether Ordronaux and his

fellow scholars were right in every detail, but what the legal

scholars thought about the Second Amendment. Ordronaux,

with a high degree of enthusiasm , join s t he u nanimous opinion

of other nineteenth century scholars in viewing the Second

Amendment as an individual righ t. Like t he Reconst ruction

Congresses, but unlik e Bishop, Or dr onaux exulted the Secon d

Amen dment not just for resistance to tyranny, but for self-

defense.

13. Sam uel Freeman Miller and J.C. Bancroft Davis

After practicing medicine in Kentucky for twelve years,

Samuel Freeman Miller became an attorney, moved to Iowa,

helped found the nascent Republican party in that state, and

became frien ds wit h another attorney interested in Repu blican

politics—Abraham Lincoln.

522

Appointed to the Supreme Court

by President Lincoln in 1862, Justice Miller served until his

death in 1890. Throughout his tenure, he was a strong

opponent of allowing use of the Fourteenth Amen dment to

protect human rights. He lectured on the Constitution at the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1497

523. See SAMUEL FREEMAN MILLER, LECTURES ON THE CONSTITUTION OF THE

UNITED STATES, at v (Fre d B. Rot hm an & Co. 198 0) (18 93).

524. See id.

525. Id. at 521.

526. The editor, John Chandler Bancroft Davis, had served as U.S. Minister to

Germany from 1874-77, a s a ctin g Secreta ry of State in the Grant administration, as

a Judge on th e Cour t of Claim s, an d as the report er for t he U .S. Supre me Court. See

Claude Moore Fues s, John Chandler Bancroft Davis, in DICT. AM. BIO., supra note

90; The Political Graveyard (visited Feb. 6, 1998) <http://www.pot ifos.com /tpg/bio/

davis.ht ml>; see generally JOHN CHANDLER BANCROFT DAVIS , MR. FISH AND THE

ALABAMA CLAIMS (189 3).

527. MILLER, supra note 523, at 661-62.

528. Id. at 662.

University of Michigan Alumni Day, at a Philadelphia

celebr ation commemorating the Constitution, and ten times at

National University Law School in Washington, in the years

1887-1890.

523

After his death, the lectures were collected and

published as a book in 1893.

524

Regar ding Cruikshank, he cit ed the case for the proposition

that the Seventh Amendment is “a restriction upon the power

of Congress, but did n ot lim it the power of the State

governments in respect to their own citizens.”

525

He did not

mention Presser in his lectures.

Miller’s editor, J.C. Bancroft Davis, wrote an appendix to

Lectures on th e Constitution of the Un ited States, to discuss

constitutional provisions which had not been addressed in the

Miller lectures.

526

The editor cited Cruikshank for the

proposition that the Fourteenth Amendment

sim ply fur nishes an a dditional guaranty against any

encroachment by the States upon the fundamental rights

which belong to every citizen as a m ember of society. . . . The

only obligation resting upon the United States is to see that

the States do not deny the right. This the amendm ent

guarantees, but no more.

527

On the same page, he cited Presser for the statement that the

Fourteenth Amendment Privileges and Immunities Clause

“does not prevent a Stat e from passing such laws to regulate

the privileges a nd immunities of its own citizens a s do not

abridge their privileges and immunities as citizens of the

United Stat es.”

528

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1498 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

529. Id. at 625.

530. Id. at 645 (cit ing P re sser v. Illin ois, 116 U.S. 252 (188 6)).

531. See id. at 708 & n.1.

532. Presser v. Illin ois, 11 6 U.S. 252 (188 6).

533. 123 U.S. 1 31 (1887 ).

534. 134 U.S. 3 1 (1890).

535. See infra text accompanying note 587.

In a discu ssion of th e m ilit ia clauses in Art icle I of the

Const itution, the editor cited Presser for the premise that the

power retained by states over the militia

is so complete that a State may, unless restrained by its own

constit ution , enact laws to prevent any body of men whatever,

other than the regularly organized volunteer militia of the

State, and the troops of the United States, from associat ing

them selves together as a m ilitar y com pa ny or organ ization , or

to drill or parade with arms in any place within the State,

without the consent of the governor of the State.

529

The description of the first three amendments to the Bill of

Rights was terse, consisting of only a paragraph for each

amendment. The Second Amendment was explained:

This pr ovision is a limitation only on the power of Congress,

and not upon the power of the States; and, unless restrained

by their own constitutions, State legislatures may enact

statutes to control and regulate all organizations, drilling a nd

parading of military bodies and associations, except those

which are authorized by the militia laws of the United

States.

530

The book concluded with another appendix written by

Gher ardi Da vis, wh ich consist ed of the t ext of the Constitution,

with string citation footnotes provided for each constitutional

provision. For the Second Amendment,

531

the editor cited

Presser,

532

Spies v. Illinois,

5 33

and Eilenbecker v. Plym outh

County.

534

S pies was the prosecution growing out of the Haymarket

Riot , and is discussed below.

535

The on ly t hing the court said

about the Second Amendment was: “[t]hat the first ten Articles

of Amendment were not intended to limit the powers of the

state governments in respect to their own people, but to operate

on the National Government alone, was decided more than a

half century ago, and t hat decision has been steadily adhered to

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1499

536. S pies , 123 U.S. at 166.

537. See id.

538. Eilenbecker, 134 U.S. at 34.

539. For example, he took over Pomer oy’s wat er la w treat ise after Pomeroy’s

death. See J OHN N ORTON POMEROY, A TREATISE ON THE LAW OF WATER RIGHTS: BEING

A REVISED AND ENLARGED EDITI ON OF “P OMEROY ON RIPARIAN RIGHTS,” WITH SEVE RAL

ADDIT ION AL CHAPTERS BY HEN RY CAMPBELL BLACK (189 3); see also HENRY CAMPBELL

BLACK, A TREATISE ON THE LAW OF INCOME TAXATION UNDER FEDERAL AND STATE

LAWS (191 3); HEN RY CAMPBELL BLACK, A TREATISE ON THE LAW OF JUDGEME NTS (2d

ed. 190 2); HEN RY CAMPBELL BLACK, A TREATISE ON THE RESCISSION OF CONTRACTS AND

CANCELLATION OF WRITTEN INSTRUMENTS (2d ed. 1929); HEN RY CAMPBELL BLACK,

HANDBOOK ON THE LAW OF JUDICIAL P RECEDENTS OR THE SCIENCE OF CASE LAW (191 2);

HENRY CAMPBELL BLACK , THE RELATION OF THE EXECUTIVE POWER TO LEGISLATION

(1919). Starting in 1917, Campbell also edited The Cons tit ut ion al R eview , a law

review dealing with constitutional issues.

540. HENRY CAMPBELL BLACK, HANDBOOK OF AMERICAN CONSTITUTIONAL LAW

(1895). There was a second edition in 1897, and a third print ing in 1910.

541. William D. Bader, S om e Thou ghts on B lack stone, Preced ent, and

Originalism, 19 VT. L. REV. 5, 13 (1994).

since.”

536

The Court also cited Presser, Cruikshank, and other

cases for the proposition.

537

Similarly, Eilenbecker held that the

Fourteenth Amendment does not apply the Fifth, Sixth, and

Eighth Amendments against the states. The case’s only

reference to the Second Amendment is the following statement:

“the first eight articles of the amen dm en ts t o the Const itution

have reference to powers exercised by the government of the

United States and not to those of the States.”

538

Again, the

Court cited Cruikshank, Presser , and other cases.

14. Henry Campbell Black

Henry Cam pbell Black is known toda y by almost every

Amer ican law student and lawyer as the author of Black’s Law

Dictionary. However, he also authored treatises on a variet y of

other subjects,

539

including the Handbook of American

Constitutional Law.

540

In this “celebrated summ ar y of

constitutional law,”

541

he wrote:

RIGHT TO BEAR ARMS

203. The secon d am endm ent to th e federal con stitu tion , as well

as the constitutions of many of the states, guaranty to the

people the right to bear arms.

This is a nat ura l righ t, not created or granted by the

constitutions. The second amendment means no more than

that it shall not be denied or in frin ged by con gress or th e other

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1500 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

542. BLACK , supra note 540, at 462-63.

543. See id. at 463 n.35.

544. Id. at 463.

545. See Com monw ea lth v . Mu rp hy, 44 N.E. 138 (Ma ss. 18 96).

546. BLACK, supra note 540, at 463.

547. See id. at 463 n.37 (citing English v. State, 35 Tex. 473 (1872); Fife v. State,

31 Ark . 45 5 (1876); S ta te v. Work ma n, 14 S .E. 9 (W. Va. 1891)).

548. See id. at 463 (cit ing H aile v. St at e, 3 8 Ar k. 564 (188 2) (u pholding a law

allowing th e ca rr yin g of weap ons in public only whe n ca rr ied ope nly in th e h an d);

State v. Wilforth, 74 Mo. 528 (1882) (holding that a concealed weapons law was not

unconstitutional because it still allowed open car rying for personal defense); Sta te v.

Speller, 86 N .C. 69 7 (1882) (up hold ing a con cealed wea pons law based on express

authority to restr ict concealed carry in st ate constit ution; noting that the law does

not prevent a person from carrying weapons openly for personal pr otection); Wrigh t

v. Commonwealth, 77 Pa. 470 (1875) (holding that the state constitutional right to

arms was not infringed by imposition of court costs on a defendan t who carried a

concealed weapon wit h m aliciou s in te nt )).

departments of the national government. The amendment is

no restriction upon the power of the several states.

542

As authority, Black cited Cruikshank.

543

He continued: “Hence,

unless restrained by their own constitutions, the state

legislatures may enact laws to control and regulate all military

organizations, and the drilling and parading of military bodies

and associations, except those which are authorized by the

militia laws or the laws of the United States.”

544

Black cited

Presser and a Massachusetts case.

545

As to the type of arms protected, the arms

are those of a soldier. They do not include dirks, bowie knives,

and such other weapons as are used in brawls, fights, an d

riots. The citizen ha s at all times th e right to keep arm s of

modern warfare, if with out d anger to ot her s, . . . but n ot s uch

weapons as are only intended to be the instruments of private

feuds or vengeance.

546

He cited som e of the st anda rd state ca ses for this pr oposition.

547

Lastly, he asserted that pr ohibitions on carrying concealed

weapons are not unconstitutional.

548

Bla ck thus provides

another individual rights view, along with the standard

exceptions from the late nin eteenth centur y.

15. George S. Boutwell

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1501

549. James Ford Rhodes, Ulysses S. Gran t, E igh teen th Presid ent , 9 AMERICA 69,

75 (1868), in AMERICAN FREEDOM LIBRARY: TODAY’S ISSUES, TRADITIONAL VALUES (CD

ROM ed. 1997).

550. John Harr ison, Reconstructing the Privileges or Imm unities Clause, 101 YALE

L.J. 1385, 1440 (199 2).

551. See THO MAS H. BROWN, GEORGE SEWALL BOUTWELL: HUMAN RIGHTS

ADVOCATE 66 (1989 ); Michael W. McConn ell, Institutions and Interpretation: A

Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 , 183 (19 97).

552. See Michael W. McConn ell, Originalism an d the Desegr egation Decisions, 81

VA. L. REV. 947, 1071-7 2 (19 95).

553. S ee, e.g., GEORGE S. BOUTWELL, THE WAR OF DESPOTISM IN THE PHILIPPINE

ISLANDS (189 9); Hen ry G. P ear son, George Sewall Boutwell, in DICT . AM. BIO., supra

note 90; George S. Bou twell, Imperialism and Anti-Imperialism, Address at Con fer en ce

of Anti-Im perialist s, Boston (May 16, 1899), available online <http://home.ican.net/

“[A] sturdy Puritan and politician of sterling virtue,”

549

attorney George S. Bou twell was t he “arch-radical” of ra dical

Repu blicans du ring the Civil War and Reconst ruction.

550

was elected to the Massachusetts state legislature as a

Democrat, and then elected Governor of Massachusetts in 1851

by a coalit ion of Democrats and Free Soilers. But his vehement

opposition to slavery impelled him to becom e one of the

founders of the Massachusetts Republican party.

During the Civil War, Boutwell served as America’s first

Commissioner of Internal Revenue, and then in the United

States House of Representatives from 1863 to 1869. He was one

of the Radical Repu blican lea ders in the House, ser vin g on the

Joint Committee on Reconstruction, and playing a major role in

the shaping and passage of the Fourteenth and Fifteenth

Amendments. Boutwell was exceeded by no one in Congress in

his determination to use federal power t o end slavery and

promote civil rights for the freedmen.

551

He was far ahead of his

time, proposing an amendment to the Civil Rights Act of 1866

that would have required public schools to be integrated.

552

President Grant appointed Boutwell Secretary of the

Treasury, a post he left in 1873 wh en he was elect ed to the

Senate. He left the Senate in 1877 when President Hayes

appointed him to recodify the statutes of the United States. He

produced the Revised Statutes of the United States in 1878.

Thereafter, until h is death in 1905, he practiced inter national

law in Massachusetts. Boutwell remained active in public

affairs, closing his career as President of the Anti-Imperialist

League and playing a leading role in the fight against the new

American foreign policy created by President McKinley.

553

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1502 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

~fjzwick/ailtext s/gsbimper .htm l>.

554. GEORGE BOUTWELL, THE CONSTITUTION OF THE UNITED STATES AT THE END

OF THE FIRST CENTURY (1987) (18 95).

555. Id. at 358

556. Id. at 359.

557. See id. at 359-60.

558. See JAMES SCHOULER, A TREATISE ON DOMESTIC RELATIONS (187 0); JAMES

SCHOULER, A TREATISE ON THE LAW OF HUSBAND AND WIFE (188 2); J AMES SCHOULER,

A TREATISE ON THE LAW OF MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS

(6th ed. 192 1); see also Michael Grossber g, Balancing Acts: Crisis, Change, and

Continuity in Am erican Family Law, 1890-1990, 28 IND. L. REV. 273, 275 (1995)

(noting that “family law ha d been scatter ed about the lega l landscape” until th e “first

major compilat ion” by Sch ouler ).

559. See JAMES SCHOULER, A TREATISE ON THE LAW OF BAILMENTS (3d e d. 1 897);

JAMES SCHOULER, A TREATISE ON THE LAW OF PERSONAL PROPERTY (2d. ed. 1887);

JAMES SCHOULER, LAW OF WILLS, EXECUTORS AND ADMINISTRATORS (6t h e d. 1 921).

George Boutwell’s The Constitution of the United States at

the End of the First Century appeared in 1895.

554

Boutwell’s

chapter on “The Right of the People to Keep and Bear Arms”

informed the reader that “the only case of impor tance” which

has arisen under the Second Amendment was Presser.

555

After

summarizing the case background and pointing out that the

Illinois militia statute enrolled able-bodied males between the

ages of eighteen and forty-five in the state militia, Boutwell

noted that the claim was made that the Illinois statute against

armed parades without a permit (exceptin g para des by th e

state militia) was challenged under the Second Amendment.

But the Supreme Court explained “that the Second Amendment

was a guarantee that nothing should be done by the United

States in restraint of the right of the people to keep and bear

arms, but that the amendment could not be appea led to as

limiting the power of the Sta tes.”

556

Boutwell concluded with

Presser’s caveat that state gun controls could not disable

citizens from performing their federal militia duties.

557

16. J am es S chouler

Professor James Schouler essentially founded the legal

subject of domestic relations with his 1870 treatise on the topic,

a treat ise which went through six pr intings over the next half-

century.

558

He also wrote treatises on wills, bailm ents, and

property,

559

and authored a major history of the United

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1503

560. See JAMES SCHOULER, HISTORY OF PEOPLE OF THE UNITED STATES OF

AMERICA: UNDER THE CONSTITUTION (Dodd, Mead & Co. rev. ed. 1970) (1st pub. 1880-

1913, 7 vols.); John H . Lat an e, J am es S chou ler, in DICT. A M. BIO., supra note 90.

561. JAMES SCHOUL ER, CONSTITUTIONAL STUDIES: STATE AND FED ERAL (Da Capo

Press ed. 1971) (1 897 ).

562. Id. at 192.

563. See id. at 192-93.

564. Id. at 192-93, n.6.

565. The Virginia section of the treatise quoted the Virginia Declar ation: “A well-

regulated militia is the na tu ra l an d sa fe defence of a fr ee s ta te; standing armies in

time of peace are dangerous to liber ty; and in a ll cases the m ilitar y should be strictly

subordinate to th e civil power.” Id. at 33. Schouler’s footnote added: “See standin g

army grieva nces u nd er th e Kin g recited in t he Decla ra tion of Independence, also

English Bill of Rights (Righ ts 6 and 7). Depen den ce upon a militia is more str ongly

asserted th an hither to.” Id. at 33 n.5.

566. Id. at 145-46.

567. Id. at 146 n.1.

States—the first to cover the period between the Revolution

and the Civil War in a scholarly manner.

560

In 1897, Professor James Schouler’s series of lectures to

graduate students at J ohns Hopkins University was published

as Constitutional S tudies: State and Federal.

561

Describing the

first eight amendm ents of t he Bill of Rights, Schouler wrote

that they “touch the individual and civil rights” and “apply

exclusively to Federal jurisdiction and pr ocedure.”

562

For the

Second Amendment and the Fourth Amendment, Schouler’s

text did nothing more than quote the amendment in full,

offering a sparse commentary in a footnote.

563

The Second Amendment footnote stated: “In the English Bill

of Rights of 1688 was a similar provision as to Protestants,

whom the King had disbanded while trea ting Rom an Catholics

with favor.”

564

The footnote also referred the reader to “State

maxims corresponding,” in an earlier part of the treatise,

dealing with the Virginia Declaration of Rights of 1776.

565

Explaining the Congressional militia powers, Sch ouler

wrote that St ates “feared that the Union would weaken ea ch

local militia for st rengthening the regular army; and hence the

reservation here asserted [Article I’s reservation of militia

training, and the appointment of militia officers to the states],

as well as the jealous amendments of 1789.”

566

The “jea lous

amendments” are cited in the footnotes as “Amendments II. and

III.”

567

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1504 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

568. A footnote here referred the reader to the Second Amendment discussion.

See id. at 226 n.3.

569. Id. at 226. His footnote cited the 1850 Ken tu cky Constitution. See id. at 226

n.4. That Constitution included a right to bear arms provision t ha t spe cifically

excepted concealed carr y. See supra note 190. This provision was a r esp onse to an

1821 Kentucky cour t decision holding a law against concealed car ry to be in violation

of the state constitutional right to keep and bear ar ms. See supra note 152 and

accompanying text.

570. See C HARLES E. CHAD MAN , CONSTITUTIONAL LAW, FEDERAL AND STATE: BEING

A CLEAR AND COMPLETE ANALYSIS OF THE CONSTITUTION, TOGE THER W ITH A SUMMARY

OF THE LEADING DECISIONS AND BASIC PRINCIPLES WHICH GO TO MAKE UP THE

FUN DAME NTAL LAW OF THE STATE AND NATION (1899).

571. Id. at 159.

Like many other late nineteenth century commentators,

Schouler took care to emphasize that laws restricting concealed

weapons could pass constitutional muster. Describing changes

in state constitu tions in the middle of the nineteenth centur y,

he wrote: “To the time-honored right of free people to bear

arms

568

was now annexed, . . . the qualification that carrying

concealed weapons was not to be included.”

569

State laws

restricting the carrying of concealed weapons apply, obviously,

only to individuals, and not to state governments or state

militias. If concealed weapons laws are an exception to the right

to keep and bear a rm s, then the right is necessarily an

individual right.

17. Home schooling

The “Home Law School Series” of books reminds us of an

era when graduation from a law school accredited by the

Amer ican Bar Association wa s n ot necessary for adm ission to

the bar. The Constitutional Law book in the series combined

the Second and Third Amendments into a single paragraph.

570

The pr ovisions of Articles 2 and 3 were intended to protect the

peop le from arbitrary action on the part of governm ent similar

to that of the E nglish government in the past. The right of the

peop le to bear arm s was a practical recognition of their right to

demand with force that the government as constituted obser ve

Constitutional restraints. The right is general, and extends to

all citizen s, wh ether enr olled in th e m ilitia or not. But it is

held that it does not authorize the carrying of weapons that

are concea led, a nd wh ich are chiefly usefu l in in dividua l

encounters.—Cooley, Principles, 3d ed., 299.

571

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1505

572. See CASPAR THOMAS HOPKINS, A MANUAL OF AMERICAN IDEAS (187 2),

available online <htt p://moa.um dl.u mich.e du/cgi-bin /moa /sgm l/moa -

idx?notisid=AEW4514>.

573. Id. at 49.

574. Id. at 177-78.

575. See id. at 178-79.

The paragraph is a rather concise su mmary of the view of

the ninet eenth cen tury commentators: t he righ t belongs to all

Americans, not just militia members. The purpose of the right

is to resist unconstitutional government. The right to bear arms

does not extend to the concealed carrying of guns, or to weapon s

unsuitable for resistin g tyranny.

18. Civics manuals for youth

While legal text s fr om the nineteenth century are found in

most academic law libraries, books which discuss legal matters

for a popular audience are often not. Nor are such books often

listed in legal in dexes . Th us, the four popular books discussed

in this section are likely not the only books from the nineteenth

century wh ich were written by a nd for non-lawyers about legal

aspects of Amer ican government, in cluding the Second

Amendment. But the books do offer at lea st som e insight of how

materials for seconda ry schools and colleges treated the Secon d

Amendment.

Caspar Thomas Hopkins’ 1872 book A Manual of American

Ideas wa s written to inst ruct youth in pr inciples of American

government.

572

Hopkins listed “The right to keep and bear

arms” as among “the rights which are secured to every

individual by th e Con stitutions and laws of th e Un ited

States.”

573

In a chapter devoted to a denunciation of standing

armies, Hopkins explained that one method by which standing

armies are kept in check is that “[e]very individual throughout

the nation has the Constitutional right to keep and bear arms.

This accustoms t he people t o their use. (Th is righ t is not

allowed by governments that are afraid of the people.)”

574

The

state-based militia system was described separately, as a

distinct check on standing armies.

575

The Reverend Joseph Alden’s Alden’s Citizen’s Manual: A

Text-Book on Govern m ent for Com mon Schools was simpler

than the Hopkins book in its approach to many issues. Alden

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1506 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

576. JOSEPH ALDEN, ALDEN’S CITIZEN’S MANUAL: A TEXT-BOOK ON GOVERNMENT,

FOR COMMON SCHOOLS (New York, Sheldon & Co. 1869), available online

<http://moa.umdl.

um ich.edu/cgi-bin /moa /sgm l/moa-idx?n otisid=AHM4111>. Alden was a professional

educator, and the author of over seventy books, most of them didactic and intended

for Sun day school or classroom use . See Ha rris Elwood Sta rr , Joseph Alden, in DICT.

AM. BIO., supra note 90.

577. ISRAEL WARD ANDREWS, MANUAL OF THE CONSTITUTION OF THE UNITED

STATES (Homer Mor ris r evised ed., N.Y., Am er ica n B ook 1 900 ) (188 7).

578. See Arth ur Gra ndville Beach , Israel Ward Andrews, in DICT. AM. BIO., supra

note 90.

579. ANDREWS, supra note 577, at 267.

580. See supra notes 3-4 and accompanying text.

quoted the full text of the Second Amendment in answer to the

question “Can the government disa rm the people?”

576

Israel Ward Andrews’ 1874 textbook Manual of the

Constitution of the United States had the same title as Timothy

Farrar’s 1867 legal treatise, although it is impossible to know if

Andrews knew of the Farrar book.

577

Andrews was a highly-

regarded professor at Mar ietta College in Ohio, and his Manual

was used for many years as a college t ext book.

578

Andrews gave

a milit ia-based exposit ion of th e Second Am endm ent: “The

militia are the citizen soldiery of the country, as distinguished

fr om the standing, or regular, army. The militia system has

been allowed to fall into partial decay, showing that the people

have little fear of need t o defen d t hemselves by force of ar ms

against their government.”

579

Andrews’ Manual is not

inconsistent with Henigan’s theory,

580

since Andrews does not

specify who the m ilitia are, or how t hey a re armed. Nor are

Andrews’ two sentences inconsistent wit h the mainstream of

nineteenth century thought.

Calvin Townsend’s 1868 Analysis of Civil Governm ent

(written as a textbook usable for prima ry, secondary, and

higher education) also offered a militia-cen tric explanation of

the Second Amendment:

The righ t of t he people t o ke ep and bea r a rm s, with wh ich

the General Government is herein prohibited from interfering,

refers to an organization of the militia of the States. There

have been fear s exp ressed, tha t t he liberty t he people might be

destroyed by the perverted power of a form ida ble sta nd ing

army. But here is the check t o an y su ch d an ger . The m ilitia,

that might be called out anytime on a month’s notice, would

outn umber , tw en ty to on e, any stan din g arm y in tim e of peace

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1507

581. CALVIN TOWNSEND, ANALYSIS OF CIVIL GOVERNMEN T 224 (1868).

582. Id. at 91.

583. See 1 JOHN RANDOLPH TUCKER, THE CONSTITUTION OF THE UNITED STATES,

at v (Fred B. Rothm an & Co. 1981) (1899). For a discussion of Hen ry St. George

Tucker, see supra notes 136-49 an d accompanying text.

584. See Ha lbrook, supra note 19, at 33.

585. “It is unfashionable, I know to stickle for the Constitution,” he once said.

49 CONG. REC., 1st Ses s., a pp. at 59 (18 86); see William G. Bean, John Randolph

Tucker, in DICT. AM. BIO., supra note 90.

586. See Car rington, supra note 19, at 333.

that will ever be tolerated in Un ited States. La rge stan din g

arm ies might in deed be da ngerous in a repu blican

government, but for a much stronger force distributed

throughout the ranks of the people.

581

But while H enigan sees the lauding of the militia as

inconsistent with an individual right, the nineteenth century

did not. Townsend’s book included detailed outlines showing

the order in which individual topics should be presented. Under

the general hea ding of “Freedom” was the subheading “Civil.”

The individual topics listed under civil freedom were fr eedom of

speech, freedom of the press, “[t]he right of the people

peaceably to assem ble and pet ition the government for redress

of grievances” and “[t]he right of the people to keep and bear

arms.”

582

Townsend listed the right to arms as among the rights

of an individual to civil freedom , rather than among the powers

of state governments.

19. John Randolph Tucker

The story of nineteenth century legal treatises and the

Second Amendment ends where it began, with the Tucker

family. John Randolph Tucker was the son of the Henry St.

George Tucker (the treatise writer and Vir ginia judge).

583

John

Randolph Tucker served as Attorney General of Virginia,

United St ates Repr esen tative, and P resident of the Amer ican

Bar Association.

584

He was a Democratic leader in Congress and

an ardent defender of the Constitution and its limits on central

power.

585

He also taught law at Washington & Lee, bearing as

pr ofound an influence on the growth and success of that school

as Thomas Cooley did at the University of Michigan.

586

As a private attorney, his most famous trial was the

Haymarket case, wh ich grew out of an 1886 confrontation

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1508 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

587. See Spies v. Illinois, 123 U.S. 131 (1887 ). At a meeting called to protest the

killing of striker s by police, someone th rew a bomb into a group of policemen.

588. See O’Neil v. Vermont, 144 U.S. 323, 361 (1892) (Field, J., dissenting, joined

by Harlan, J ., and Bradley, J.) (“[A]fter m uch r eflection I think th e definit ion given

at one tim e before th is cou rt by a distin guish ed a dvocate—Mr. John Randolph Tucker,

of Virgini a—is corr ect.”); see also Twining v. New Jersey, 211 U.S. 78, 114-27 (1908)

(Harlan, J., dissenting); Maxwell v. Dow, 176 U .S. 581, 605-17 (1900) (Harla n, J .,

dis sent in g).

589. See 1 JOHN RANDOLPH TUCKER, supra note 583, at vi.

590. The Tuckers’ footnote cited Federalist Nos. 28 and 46. In Federalist 46,

between strikers and a violent police force.

587

Tucker argued to

the Supreme Court that the Privileges and Immunities Clause

of the Fourteenth Amendment made all of the Bill of Rights

(including, of course, the Second Amendment ) enforceable

against the states, and therefore, the Haymarket defendants

were entitled to a reversa l of their convict ions, based on the

violation of the rights against self-incrimination and on their

right to an impartial jury. Tucker pointed to Congressional

debates on the Fourteenth Amendment, argued that

Cruikshank supported his position, and suggested that Presser

merely stood for the proposition that armed parades could be

prohibited. The Supreme Court, however, managed to sidestep

the wh ole issue, by pointing out that the object ions r aised by

Tucker in the Supreme Court had not been raised by th e

Haymarket defendants’ attorney at trial. Tucker’s arguments

concerning the Fourteenth Amendment were adopted in 1892

by Justices Field, Harla n, and Bra dley.

588

John Randolph Tucker continued tea ching at Wash ington &

Lee throughout his 1876-88 ten ure in Congress. Up on

retirement from Congress h e resumed full-time law teaching

and began writing a treatise on constitutional law. Elected

President of the American Bar Association in 1892, Tucker was

not able to see h is treatise through to pu blication before his

death in 1897. His son , Henry St. George Tucker II (also a law

professor at Washington & Lee, and a future Congressman)

brought the manuscript to completion, without making editorial

changes, in 1899.

589

John Randolph Tucker explained the

Second Amendment:

This prohibition indicates that th e security of liberty

against the tyrannical tendency of government is only to be

foun d in the right of the people to keep and bear arms in

resisting the wrongs of government.

590

The case of Presser v.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1509

Madison rejoiced in “the advantage of being armed, which the Americans possess over

the people of almost every other nation.” A national st anding army could not, as a

practical matter, amount to more t han 30,000 men, Ma dison said. “To these would

be oppos ed a militia a mou nt ing to near half a million of citizens with arms in t heir

hands . . . . It may well be doubted whether a militia thus circumscribed could ever

be conquered by s uch a prop ort ion of regular troops.” He predicted that the European

governments, who were “afraid to trust the people with arms,” would be “speedily

overturned” if ever opposed by a popular m ilitia directed by locally-controlled

governments and officers.

In Federalist No. 28, Hamilton outlined one scenario of resistance to

[t]he enterpr ises of ambitious rulers in the national councils. If the

federal army should be able to quell t he r esist an ce of one Sta te, t he

distant States would have it in their power to make head with fresh

forces. The a dvan tages obtained in one place must be abandoned to

subdue the opposit ion in oth er s; a nd th e m ome nt th e pa rt wh ich ha d

been reduced to submission was left to itself, its efforts would be

renewed, and its r esistance revive.

591. 2 JOHN RANDOLPH TUCKER, THE CONSTITUTION OF THE UNITED STATES 671-

72, (Henr y St . Geor ge Tuck er ed., 1899); see also id. at 853 (citing Pres ser for the

proposition th at un der sect ion 5 of th e Fourteenth Amendment, Congress “can take

no action . . . to protect a citizen in his rights as a citizen of a State”; citing

Cruikshank for the proposit ion that federa l constitutional righ ts belon g to a per son

in his capacity as a citizen of the United St ates, and that section 5 of the Fourteenth

Amendment “does n ot limit t he police powers of th e St at es, nor affect the State

organism or it s fu nct ion s”).

592. See William M. Ivins, The S tatus of the Militia in Tim e of Riot—Part I, 18

ALB. L.J . 85 (1878); William M. Ivins, Note, Th e S tat us of th e Militia in T im e of

Illinois arose out of an act p assed by th e S ta te of Illinois

prohibiting all bodies of men other th an th e regu lar ly

organized volunt eer militia of the state from associating an d

drilling as such. The Suprem e Court held th at it d id n ot

conflict with this amendment, beca use the am en dm en t is only

a limitation of power on Congress, not on the States.

591

Thus, Tucker followed standard nineteenth century thought in

seeing the Second Amendment as designed to facilitate popular

resistance to tyranny. He likewise followed the standard post-

Presser view t hat the Secon d Am endm ent wa s n ot directly

applicable to the states.

C. Law Review Articles

So far as the indexes reveal, few nineteenth century law

reviews discussed the Second Amendment. For example, the

Albany Law Journal carried a two-part article about the New

York militia law, which did not mention the Second

Amendment.

592

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1510 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

Riot—Part II, 18 ALB. L.J . 107 (187 8).

593. See G.C. Clem ens, The Militia Law, 1 KAN. L.J. 261 (1885).

594. Id.

595. See id. at 261-62.

596. See id. at 263.

597. See id.

598. See id. at 264.

599. See id. at 265.

600. See id. at 262.

One notable exception, however, appeared in the Kansas

Law Journal. Published in 1885, this article remains to this

day one of the most incendiary discussions of militias ever to

appear in a law journal.

593

The article opened with sentiments

that are commonpla ce in the militia movement of the 1990s,

but rarely seen in law jou rnals. “Devoted to the constitution,”

began th e epigraph quoting Wisconsin Supreme Court Chief

Justice Ryan, “we invoke the vengeance of God upon all who

raise their sacrilegious hands against it.” The author continued

by quoting Tocqueville’s statement that unless democra cy is

guarded, “it merges into despotism.”

594

The author maintained

that Kansas was in fact drifting into despotism, as

demonstrated by the new state militia law.

595

This new Kansas militia law gave local officials the

authority to call out the militia, and the author feared that the

law would be invoked to suppress peaceful assemblies of

political dissidents.

596

Even worse, militia commanders

themselves were given unilateral authority to take action.

597

The author theor ized t hat this wa s particularly danger ous

because railroad companies could make their employees militia

captains, and then have the militia available as a private

army.

598

This new law was said to violate the Kansas

Const itution, which gave on ly t he Gover nor the authority to call

out the militia in circumstances far more limited than the

militia law authorized.

599

A strike in the town of Atchison illust rated the danger of

the new state militia law. Although the strike ended peacefully,

it was learned that both the Mayor and Sheriff of Atchison

wrote to the Kansa s Gover nor du ring the conflict, falsely

claiming that the town was in the possession of a violent mob.

In their letters, they a sk ed that the Gover nor call out the

militia to break the strike and suppress the mob.

600

If the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1511

601. Id.

602. Id.

603. Id. at 265-66.

604. Id. at 266.

605. See Note, Constitutional Law— Militia—Right to Bear Arms, 22 CENT. L.J .

411 (1886).

Mayor or Sheriff had possessed unilateral authority to call out

the militia, they “would h ave cr imson ed the streets of Atchison

with the blood of curious men, women and children, and

provoked an insurrection th at would have made that city a

bloody field of battle.”

601

Moreover, continued the article, the militia created by the

new law was a select militia in wh ich only a sm all class of

citizens enlisted; in other words, “a milita ry class to terrorize

the community.”

602

In contrast:

The const itu tion al m ilitia is a thing into which a m an grows by

reaching his majority—he does not become a m ember by

voluntary enlistment. The intention was that every able-

bodied citizen should have a gun in his hands and know how to

use it; th en non e n eed fear his neighbor nor a despot; wh ile

this law puts arms into the ha nds of a class, and leaves the

average citizen at th eir mercy. This law creates a stan din g

army in violat ion of the Bill of Righ ts. What elem en t does it

lack? And while “th e people have the right t o bea r a rm s for

their defense and security,” “standing arm ies, in time of peace,

ar e dan ger ous to libert y, and shall not be tolerated.” ([Kansas]

Bill of Righ ts, sec. 4.)

603

The article concluded by urgin g “some courageou s county

attorney” to “wrap the stars and stripes about his hand and get

hold of this reptile before it hurts somebody.”

604

Although the

subject of the a rticle was t he Kansa s State Const itution, not

the Second Amendment, the article’s sen timents are notable

because it is one of only three nineteenth century American law

review articles that addressed the militia.

The only nineteenth century law journal article to address

the Second Amendment directly is a casenote on Presser, in the

Central Law Journal.

605

The note is a straightforward summary

of Presser, treating the case as affirming state authority over

conduct within its boundaries. The author concluded that “[i]t

will no doubt be n ews t o most people, not members of the legal

profession, and to many who are,” that the Second Amendment

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1512 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

606. Id. at 412-13.

607. Presser v. Illin ois, 11 6 U.S. 252 (188 6).

608. United St at es v. Cru iksh an k, 92 U .S. 542 (1876).

609. Pres ser, 116 U.S. 252.

610. 165 U.S. 275 (1897). For a discussion of the case, see infra text

accompanying notes 623-25.

611. The discussion of th e facts about Miller is based on the on-going research

of Stephen Halbrook, including the m aterial in STEPHEN P. HALBROOK , FREEDMEN,

THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS, 1866-1876, 184-85

(1998).

limits only Congress, and provides no protection against state

gun laws.

606

D. Summary of the Late Nineteenth Century Commentators

Some important lessons may be gleaned from the post-Civil

War treatises, commentaries, and law r eview articles. All of

them treat the Second Amendment as an individual right.

Except for Cooley, none are mentioned anywhere in the anti-

individual literature. Some of them limit the individual right to

the possession of guns for resisting tyranny, while others

explicitly affirm an individual right to own and carry guns for

personal protection.

The treatises also list various exceptions to the right to

arms, which were also expressed in Supreme Court cases: the

right limits only the federal government, not the states

(Presser

607

and perhaps Cruikshank

608

); the r igh t is not

infringed by a ban on armed parades on public property

(Presser);

609

and the right is not infringed by a pr ohibition on

carrying concealed weapon s (Robertson v. Baldwin).

610

VII. FIN- DE-S IÈCLE AND BEYOND

A. The Supreme Court

The Supreme Court decided t wo cases involving the Second

Amendment in the 1890s.

1. Miller v. Texas

Franklin P. Miller was the white owner of a small store in

Dallas wh o fell in love wit h a bla ck woman.

611

Because the

period just before and after the turn of the century was the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1513

612. “J im Crow” was the name of a plan tation song; the ter m wa s applied to the

Southern system of le gally-man dated r acia l segregation .

613. The moder n t erm for th is is “dyna mic entr y.”

614. See Miller v. Texa s, 153 U .S. 535 (189 4).

apex of the horrible Jim Crow era,

612

a white man associating

with a black wom an often sparked violence in the South. The

city police in Da llas hea rd that Miller was carrying a handgun

without a license. The law of the time did not require that a

warrant be obt ained in order to arrest a person for unlicensed

gun carryin g. A gr oup of police officer s a ssembled in a local

tavern, enjoyed a good session of whiskey drinking, headed over

to Miller’s store, snuck in a side alley, and then burst into

Miller’s store with guns drawn.

613

The evidence is conflicting as to whether Miller thought

that the men breaking in with drawn revolvers were criminals

or government officia ls. Th e evidence is also conflict ing abou t

who fired first. In any case, Mr. Miller got off the first good

shot, killing one of the intruders. But Miller was outnumbered

and captured.

The episode infuriated the people of Dallas. Newspapers

raged that a man who loved a “grea sy negress” had shot a police

officer. A lynch mob attempted to extricate Mr. Miller from jail

and hang him on the spot, but they did not succeed. Mr. Miller

was able to get a trial before being hanged. At the trial, where

defendant Miller was charged with murder, the prosecutor told

the jury that Miller had been illegally carrying a gun. Miller

was convicted of murdering a police officer. Seeking to stave off

execution, Miller filed various appeals (all of which were

rejected), finally appealing to the United States Supreme Court.

Miller’s appeal to the Supreme Court claimed that his Second,

Fourth, Fifth, and Fourteenth Amendment rights had been

violated.

614

In particular, Miller argued that (1) the Texas

statute against concealed carry was invalid; (2) the statute

allowing arrest with out a wa rrant was also invalid; and (3) his

alleged violation of the carry law should not have been used as

an argument by the prosecutor.

The Court disa greed a nd wrote that “the law of the State

[which forbade the carrying of dangerous weapons on the

person did not] abridge the privileges or immunities of citizens

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1514 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

615. Id. at 539.

616. Id. at 538.

617. Id.

618. See Chicago, Burlingt on & Quincy R.R. Co. v. Ch icago, 166 U.S. 226 (1 897 ).

619. See Halbrook, Personal Security, supra note 1, at 343-44.

620. See supra notes 498-510, 522-48, 583-91 an d accompa nying text.

of the United States.”

615

Further, “the restrictions of these

amendments [Second and Fourth] operate only upon the

Federal power.”

616

At first glance, Miller would seem to reiterate what was

well established by Cruikshank and Presser. However, the

Court muddied the waters by stating that “[i]f the Fourteenth

Amendment limited the power of the States as to such rights,

as pertaining to the citizens of the United States, we think it

was fatal to this claim that it was not set up in the trial

court.”

617

The neglect to raise the Fourteenth Amendment at

trial was also fatal to Miller, and he was executed by the State

of Texas.

If the problem with Mr. Miller’s Fourteenth Amendment

argument was that the argument was not raised at the trial

court, then the Fourteenth Amendment issue must logically be

one which has not been finally settled. The Miller court had

said that the Second, Fourth, and Fifth Amendments had no

place in state courts, but this language could be read as stating

only that the Amendments are not directly applica ble to the

states.

And, in fact, the Court was preparing to move a wa y from

earlier holdings that the Fourteenth Amendment did not apply

the Bill of Rights to the states. Three years after Miller, the

Court held the Fifth Amendment (one of the amendments at

issue in Miller) enforceable against the states.

618

Was Miller

one of the first hints that the Court was going to start taking

the Fourteenth Amendment more seriously after decades of

malign neglect?

Halbrook, almost alone among twentieth century

commentators, character izes t he n onincorporation language of

Cruikshank and Presser as dicta.

619

Yet the nineteenth century

commentators who mentioned Presser and Cruikshank, as well

as the Court in several cases, habit ually cited those cases for

non-incorporation.

620

On the other hand, not only did Miller

leave the door open a crack, but the 1891 West Virginia

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1515

621. See supra notes 277-80 an d accompa nying text.

622. See supra notes 587-88 an d accompa nying text.

623. Robert son v. Baldwin, 165 U .S. 275 (1897).

Supreme Court case Workman applied the Second Amendment

directly against the state.

621

John Randolph Tucker, a very

highly rega rded lawyer, apparently felt that Preseser and

Cruikshank left enough room for him to argue to the Supreme

Court—the year after Presser was decided—that the whole Bill

of Rights was enforceable against the states.

622

Further, in the

years between Cruikshank and Presser, a number of

commentators, including Th omas Cooley, viewed the Second

Amendment as enforceable against the states.

If Miller leaves us unclear about the Fourteenth

Amendment, its Second Amendment implications are

straightforward. Mr. Miller was a private store owner and

never claimed to be part of the Texas militia. Unlike the

defendant in Presser, Miller was not even acting as part of an

unofficial private militia. Un der the anti-individualist theor y of

the Second Amendment, it should have been easy for the Court

to deny his Second Amendment claim on the grounds that, as a

private citizen, he had nothing to do with the Second

Amendment. But instead, the Court simply said that Miller had

raised the claim against the wrong government by invoking the

Second Amendment directly against a state and at the wrong

time (attem pting post-trial to use the Second Amendment as

applied t hrough the Fourteenth).

Miller’s practical result, allowing the execu tion of a m an

who defended himself against racist thugs, is hardly a shining

example in civil liberty. But the case, like the preceding

Supreme Court cases involving the right to arms, does treat the

Second Amendment as a right of individuals.

2. Robertson v. Baldwin

Three years after Miller v. Texas, the Court heard R oberts on

v. Baldwin, a case involving merchant seamen who, after

jumping ship, were captured and impressed back into maritime

service without due process. The seamen argued that the terms

of their service contract amounted to “involuntary servitude” in

violation of the Thirteenth Amendment.

623

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1516 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

624. Id. at 281. The Robertson Court’s theory that the American Bill of Rights

includes all th e limits from Br itish common la w was plainly wrong. “[T]o assume t hat

English common law in this field became ours is to deny the generally accepted

historical belief that ‘one of the objects of the Revolution was to get rid of the English

comm on law on liberty of speech and of the press.’” A Book Named “John Cleland’s

Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U.S. 413, 429

(1966) (Douglas, J., concurring) (quotin g Schofield, Freedom of the Press in the United

S ta tes, 9 PUBLICATIONS OF THE AMERICAN SOCIAL SOCIETY 67, 76). Indeed, St. George

Tucker’s exposit ion of t he new American Const itu tion ha d sh own in great det ail how

Ame ri can rights were broader than their British counterparts. See BLACKSTONE, supra

note 14.

625. See Roberts on, 165 U.S. at 282.

The Court disagreed, exp laining that all Const itutional

rights (including the right to be free from involuntary

servitude) include certain except ions. These exceptions did not

need to be specifically noted in the Constitution, since they

were obvious and traditiona l:

The law is p erfectly well settled that the first ten amendments

to the Con stitu tion , comm only kn own as th e Bill of Rights,

were not intended t o lay down an y n ovel p rin ciples of

government, but simply to embody certain gua ranties and

immunities which we had inherited from our English

ancestors, an d which ha d from tim e im mem oria l been subject

to certa in well-recogn ized except ions arising from th e

necessities of the case.

624

The Court went on to add that these exceptions constituted

such things as legislation prohibiting libel, which does n ot

abridge the First Amendment freedom of speech, and the

prohibition of carrying concealed weapon s, wh ich does n ot

infringe the right to keep and bear arms.

625

The Court’s statement about the Second Amendment

indicates that the Court believed the Second Amendment

protects an individual right. After all, there were no statutes

prohibiting state militias or the National Gu ard fr om carrying

concealed weapons. Concealed carry proscriptions are aimed

only at private citizens, not at state militias.

Standard Model authors cite Robertson and Miller

frequently. Anti-individualists tend to emphasize the holding in

Miller, while ignoring the implications of the point abou t a

procedural default. Robertson is rarely cited, since it is fatal to

the theory that the Second Amendment does not protect the

right of individuals to carry guns.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1517

626. See Sa lin a v . Blak sle y, 83 P . 619 (Ka n. 1905).

627. See J un ction Cit y v. M evis, 6 01 P .2d 114 5 (Ka n. 197 9).

628. The nin et een th centu ry un der stan din g of a “collect ive r igh t” read the Secon d

Amendment as guaranteeing a personal right to keep arms, so that th e people as a

group could r esist tyra nn y. Bu t a s u sed by th e Ka ns as cour t, “collective right” meant

an affirma tion of government power, in derogation to any right of a citizen.

629. The “collective right” (meanin g no right at all), next appeared in a judicial

opin ion in United States v. Adams, 11 F. Supp. 216 (S.D. Fla. 1935) (reasoning t hat

the Secon d Amen dmen t “refer s to th e milit ia, a prot ective for ce of government; to the

collective body a nd not ind ivid ua l righ ts ”). Since Adam s, the collective right has

appeared frequently in dicta in lower federal cour ts, bu t has n ot ma de headwa y in

the Sup rem e Cour t. S ee Denn ing, Simple Cite, supra note 1 (discussing lower cour t

cas es); Kopel & Little, supra note 1, at 525-41 (discussing Supreme Court case

hist ory).

630. 12 Ky. (2 Litt .) 90 (1822).

631. See Salina, 83 P. at 620-21.

632. Id. at 621 (quoting BISHOP, STATU TOR Y CRIMES, supra note 442, § 793, at

B. The Collective Right Establish es a Footing: Salina v.

Blaksley

After its creation by a concurring judge on the Arkansas

Supreme Court in 1842, the anti-individual theory of the

Second Amendment disa pp ea red from cases a nd t rea tises for

the rest of the nineteenth century. Beginning in 1905, the anti-

individual theory gained a more secure footing in the Kansas

Supreme Court decision Salina v. Blaksley. The S alina court

ruled that “right to arms” mea nt only that the state militia, in

its official capacity, and while in actual service, could not be

disarmed.

626

Although the Kansas Supreme Court later moved

away from Salina by declaring a local gun control ordinance

unconstitutional,

627

by then, Salina’s “collective righ t” theory

(meaning, in this cont ext , no right at all),

628

had spread far

beyond the Kansas state line.

629

The significance of Salina for this article is that the Salina

court was forced to reject or misdescribe every nineteenth

century source of authority which it used. (No eighteenth

century or prior sources were cited.) The Kansas court rejected

Bliss v. Commonwealth

630

and the long line of cases holding

that in order to secure a well-regulated militia, individual

citizens needed to be able to own and practice with guns.

631

The

court quoted a sentence from Bishop’s Statu tory Crim es that

“the keeping and bea ring of arms has reference only to war, and

possibly also to insurrections.”

632

The quote was accurate, but

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1518 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

536 ).

633. See supra notes at 442-47 an d accompanying text.

634. See Com monw ea lth v . Mu rp hy, 44 N.E. 138 (Ma ss. 1896).

635. Id., quoted in S alina, 83 P. at 621.

636. The Salina court was clearly on a mission. Neither party had urged an anti-

individual int er pretat ion in t he briefs; t he government attorney had sim ply argued

that the local law was a reas onable gun cont rol. See Brief for Appellee, Salina v.

Blaksley, discussed in Dowlut, Guarantees to Arms, supra note 1, at 77.

Unsur prisin gly, the Salina court also ignored th e pre-Civil War h ist ory of Kansas, in

which the proslavery government’s disarmament of individual citizens was denounced

nationally as a violation of the Second Amendment . See supra notes 310-16 and

accompanying text.

the Ka nsa s cou rt neglect ed the la nguage surrounding the quote

and other wr itings by Bishop, which made it clea r that Bishop

thought the right to arms belonged to individuals, not the

state.

633

Lastly, the court quoted Commonwealth v. Murphy, an

1896 decision which had upheld, against a state constitutional

claim, a Massachusetts law (similar to the Illinois law upheld

by the U.S. Supreme Court in Presser) which banned mass

parades with weapons.

634

The Massachusetts court had written:

“The right to keep and bear arms for the common defense does

not include the right to associate together as a military

organiza tion, or to drill and parade wit h arms in cities or

towns, unless authorized so to do by law.”

635

But of course, the

Massachusetts holding that the right to arms does not

authorize individuals to behave in a certain manner is not the

same as the Kansas holding that there is no individual right at

all.

Ultimately, the Salina holding stands on the Kansas court’s

textual analysis of the implicat ions of th e Kansas arms right

provision and of t he Second Am endm ent. Th e Second

Amendment was not at issue in the case, and was simply

analyzed as a guide to textual analysis of the Kansas provision.

No amount of textual analysis, however, can explain why the

framers of the Kansas Constitution, in the middle of an Art icle

titled “Bill of Rights,” suddenly inserted a pr ovision that had

nothing to do with rights, but which instead tautologically

affirmed a power of the state government: in essence, the

m ilitia is under the com plete power of th e state governm ent.

636

Salina’s pa ragraph of dicta abou t the m ea ning of the Second

Amendment laid the foundation for a late twentieth century

anti-individual theory of the Second Amendment, a theory

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1519

637. See William s, Militia Movement, supra note 8. But cf. SIR EDWARD COKE, 2

THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND § 279b (Garland Publ.

1979) (162 8) (“ ‘A right cannot d ie.’ Dorm it a liqu ando jus, moritur nunquam. For of

such an high estim ation is righ t in the eye of the law, as th e law prese rveth it from

death an d destr uct ion: tr odden downe it ma y be e, but ne ver tr odd en out.”).

638. See Powe, supra not e 1, a t 1379-8 1; Volokh , Th e Am azi ng Vanishing S econd

Amendment, supra note 1.

whose proponents often insist is the only possible

interpretation. The record of the nineteenth century

demonstrates just the opposite.

C. Late Twentieth Century Comm entators

1. Some thoughts about David Williams

David Williams is the twentiet h century expon ent of the

most sophisticated version of the collective rights theory of the

Second Amen dm en t. According to Willia ms, the Second

Amendment was, as the nineteenth century cases and

commentators agreed, intended to ensure that “the people” of

the United States would be able to overthrow federal tyranny.

According to Willia ms, the sole purpose of the Second

Amendment was a well-regulated militia; self-defense had

nothing to do with it. The right to arms continues to exist,

wrote Willia ms, only a s long as do the con ditions on which the

Second Amendment’s republican theory is premised: only as

long as the people are universally trained to virtue through

state militia service; and only as long as the people are unified,

homogenous, and share a common vision of the good, so that

they could rise as a single body to overthrow a tyrant. Since the

diverse Americans of the late twentieth century do not fit the

criteria of the republican “people,” there is currently no Second

Amendment right to arms, although the right could reappear if

the people changed so t hat they on ce again fit the r epublican

model.

637

Williams’ theory has been criticized on three major grounds.

First, his theory allows a constitutional right to vanish as a

result of governmen t inaction (failure to conduct militia

training).

638

Second, his theor y is ahistorical. The F ramer s of

the Second Amendment were well awa re that “th e people” of

the early American Republic were never as unified as in the

republican ideal that Williams posits. If the Framers and the

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1520 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

639. See Kopel & Lit tle, supra note 1, at 483-84; see also GORDON WOOD, THE

CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 60-63, 218-222, 491, 579, 607

(1969) (stating that, in contrast to the British Whigs of the seventeenth century, the

Founders were well awa re of divisions a mong t he people, particula rly class conflict s).

As Chancellor Kent explained, the thirteen colonies were

jealous of each other’s prosper ity, an d divided by policy, institutions,

prejudice, and ma nn ers. So strong was th e force of these cons ider ations, and

so exasperated were th e pe ople of th e colon ies in th eir dis pute s with ea ch

other concern ing bound ar ies and chart er claims, that Doctor Franklin (who

was one of the commissioners to the congress th at form ed t he pla n of u nion

in 1754) observed , in th e year 1760, th at a union of the colonies against the

mother country was absolutely impossible, or at least without being forced

by th e most grievou s tyran ny an d oppre ssion.

1 KENT, supra note 464, at *205. In oth er words, William s ha s things exa ctly

backwards: nationa l unity is the result of resistance to tyranny, not an ess ential

condition precedent . The absence of national unity in a n ontyrannical per iod (such as

the late twen tiet h cent ury) does not pr eclude the em ergen ce of unity in a time of

emer gency.

640. See Lun d, Past and Fu ture, supra note 1, at 59 n.138.

641. See Kopel & Lit tle, supra note 1, at 483-84 n.237.

642. It is n ot enou gh to con fine th e mea sure of hu ma n r ights to t he virtu ous :

We should endeavour to mete out the blessing to ages of depravity (and

these will sooner or later take place) as a restorative to virtue. . . . The

surest way to avoid the evil [of enslavem ent by government], an d preserve

the dign ity an d hap pin ess of ma n, is to begin right—by clearly defining the

powers intended to be delegated by the people to their rulers for the sake

of protection—and expressly enumerating the rights to be reserved. Here

would appear the quid pro quo–and by appearing, these r ights would be

universa lly understood and rem em bered . Th e tra nsition fr om fr eedom t o

slavery would be less ea sy–for the rights of the people bein g constantly

impressed upon the min d, and th e prin ciples of government fully

understood–nothing would be left to th e sp ort of imp lication , or t he

constr uct ion of arbitrary controul.

Amer ican people would crea te a Second Am en dm en t wit hout

need for a utopia n t ype of “people,” why should we now impose

utopian conditions precedent on the Second Amendment?

639

Indeed, Williams admits that the virtuous people of his theor y

never existed, but incongruously asserts that the Second

Amendment cannot be given force unless his Platonic ideal

becomes incarnate.

640

Third, any change for the worse in the

character of any actor named in the Constitution (e.g., “the

people,” or “the House of Representatives”) is not a valid reason

for nega ting a por tion of the Const itution.

641

The Bill of Rights

was written not only for an age of virtue, but for potential

future ages of depravity, wh en controls on governmen t—and

reminders of virtuous ideals—wou ld be all t he more

necessary.

642

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1521

. . . [Quoting Jefferson:] “Our rulers will become corrupt , our people

careless. . . . It can never be too often repea ted , THAT THE TIME FOR

FIXING EVERY ESSENTIAL RIGHT ON A LEGAL BASIS, IS WHILE

OUR RULE RS ARE H ONE ST, AND OURSE LVES U NITED.”

Tullius (Philadelphia ), FREE MAN ’S J., Mar . 26, 1788, in ORIGIN, supra note 37, at 309-

10 (quot ing Jeffer son from Notes on the S tate of Virginia).

At the Virginia ratifying convention, Patrick Henry warned that the federal

government might neglect the militia, and the people would be disa rmed. Expecting

that virtue alone would guarantee the continuation of the militia was foolish, Henry

predicted: “In this great, this essential part of the Con st it ut ion [feder al power s of t he

militia], if you are safe, it is not from the Constitution, but from the virtues of men

in gover nm ent. I f gen tle men a re willing to t rust them selves and posterity to so

slender and improbable a chance, they have greater strength of ner ves tha n I h ave.”

Richard Henr y Lee, Va. Convention Debates, June 14, 1788, in ORIGIN, supra note

37, at 407.

In what age is it more important to enforce strictly all constitutional rules

designed to protect the people from less than virtuous rulers: The Age of Thoma s

Jeffer son, or The Age of William Jeffer son Clin ton ?

643. S ee, e.g., ARTHUR M. SCHLESINGER, JR., THE DISUNITING OF AMERICA (1997).

But it is nineteenth century legal history that provides the

most powerful critique of Williams’ theory. Du ring that centur y,

according to Williams, the Second Amendment right to arms

should have vanished. Instead, the Amendment grew stronger

than ever. Williams points t o the va rious for ms of Amer ican

disunity toda y—such as divisions r ega rding race, r eligion ,

ethnicity, and sexu al orien tation—as proof that Americans of

the late twentieth century are no longer the homogenous and

unified Americans of the late eighteenth century. While we

should not underestimate the centrifugal pu ll of multi-

culturalism, and its harmful effect on American national

unity,

643

American disunity today is trivial compared to the

disunity associated with the Civil War. A civil war is, after all,

about the most profound sign of disunity possible.

Even after the North defeated the South, the country

experienced great difficulty restoring its u nity. Th e end of the

Civil War was t he beginning of a lower-grade, often violent

struggle between white supremacists and freedmen in the

South. And not long after the struggle ended, with the triumph

of white supr em acy, America found itself in the m idst of

another violent struggle—this one taking place all over the

nation—as workers literally fought for their rights and capital

holders suppressed the workers violently. America in the last

half of the nineteenth century was divided on sectional, racial,

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1522 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

644. See supra notes 333-58 and accompanying text.

645. See supra notes 348-54 and accompanying text.

646. See supra notes 360-487, 494-591, 611-25 and accompanying text

647. Bogus, Hidden History, supra note 2.

648. See generally id.

649. See id. at 333-35.

650. See Cottrol & Diamond, supra note 1.

and class lines to a much more profound degree than America is

divided today.

And what happened to the Second Amendmen t during this

period of very unrepublican disunity? Th e elect ed

representatives of “the people” made the Second Amendment

stronger than ever.

644

For over a decade, Congress worked

energetically to protect the Second Amendment from private

and state government interference. Further, the state

legislatures ratified a Fourteenth Amendment intended to

guarantee a right to own weapons for personal defense.

645

Commentator after commentator and court after court affirmed

that the Second Amendment was a current, enforceable

guarantee of the righ t of every American citizen to own

weapons.

646

Almost all of these cases and commentaries were

contemporaneous with the turm oil associated with the Civil

War, the Reconstruction, or the labor wars. If the Second

Amendment survived and thrived through all the disunity of

the second half of the nin eteenth century, and also survived the

abandonment of the pretense of regular militia training by most

states after the Civil War, then it is hard to believe that the

Second Amendment is such a feeble creature that it can be

felled by the relatively minor modern disunities of the 1990s.

2. Some thoughts about Carl Bogus

In his 1998 article, The Hidden History of the S econd

Amendment, Carl Bogus follows in the path of David

Williams

647

and attempts to seriously engage original sources.

648

Alth ough Bogus writes in opposition to the Standard Model, his

article makes an important contribution by highlighting the

importance of the militia in the South in crushing and deterring

slave insurrections.

649

With the exception of Robert Cottrol and

Ray Diamond,

650

Standard Model authors have neglected this

unattractive aspect of the militia.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1523

651. See Bogus, Hidden History, supra note 2, at 333-37.

652. See id. at 322-37.

653. See id. at 359-74.

654. “Have we means of resisting disciplined armies, when our only defence, the

militia, is put into the h ands of Congress?” Patr ick Hen ry, Virginia Ratifying

Convention, Jun e 5, 1788, in ORIGIN, supra note 37, at 370.

655. See Bogus, Hidden History, supra note 2, at 331 n.102, 349, 374 n.313.

656.

Forty year s ago, when the r esolution of enslaving America was formed in

Great Britain, the British P arliament was advised by an artful man [Sir

William Keith ], who was gover nor of Pen nsylvania, to disarm t he people;

that it was the best and most effectual way to enslave them; but that they

should not do it openly, but weaken them , and let them sink gradually, by

tota lly disusing and neglecting the militia.

Unfortunately, Bogus attem pt s t o turn a useful contribu tion

to scholarship about the militia into a tool that single-handedly

overturns the individual rights Standard Model. Bogus’ history

is plainly defective in its reading (and invention) of th e

eighteenth century record, and the defects become all the

clearer in light of the nineteenth centur y. Because Bogus’

article addresses eigh teenth century sources not previously

discussed in this article, it is now necessary to examine these

sources.

Bogus makes the following argument: (1) the militia in the

South was frequently used to suppr ess slave insurrections, and

for slave p atrolling to deter insu rrect ion or flight;

651

and (2) at

the Virgin ia ratifying conven tion, oppon ents of t he proposed

Const itution, such as Patrick Henry, worried that the federal

powers over the militia would prevent the states from calling

out their militias to suppress slave insurrections.

652

From these

uncontested facts, Bogus then makes a leap of reasoning to

conclude that Madison wrote the Second Amendment solely to

affirm the power of states to use their milit ias to crush slave

revolts.

653

One problem with Bogus’ thesis is that it ignores the

evidence that even the hard-cor e Vir gin ia slave owners, su ch as

Patrick Henry, who wanted a strong militia to protect them

from the slaves, also wanted a st rong militia for protection from

the federal government.

654

Bogus tells the reader three times

that George Mason had three hundred slaves;

655

but Bogus

never tells the reader that Mason wanted an armed white

populace not just to control slaves, bu t because wit hout arms,

the white population could more easily be enslaved.

656

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1524 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

George Mason, Virgin a Ratifying Conven tion, June 14, 1788, in ORIGIN, supra note

37, at 401.

657. The Address and Reasons of Dissent of the Min ority of the Convention of the

State of Pen nsylv an ia t o th eir Cons tit uen ts, PEN NSL YVANIA PAC KET, Dec. 18, 1797, in

ORIGIN, supra note 37, at 160.

658. Massachusetts Conven tion Debates, Feb. 6, 1788, in ORIGIN, supra note 37,

at 260. See als o id. at 263 n.4, for the political machinations surrounding the Adams

amendment.

Further, Bogus underplays the demand for an arm s right

that came from the Northern states, where protection of slavery

was not an important issue. Half a year before the Virginia

conven tion had m et, the m inority of the Pennsylvania ratifying

convention had demanded a Bill of Rights, includin g:

7. That the people have a right to bear arms for the

defense of them selves and their own state, or the United

States, or for t he pu rp ose of killin g game; an d n o law shall be

passed for disarming th e people or an y of th em , unless for

crimes com m itte d, or real danger of pu blic injury from

individuals; an d a s st an din g arm ies in the time of peace are

dangerous to liberty, they ought not to be kept up; and that

the militar y sh all be kept under str ict subordin at ion to and be

governed by the civil power.

8. The inhabitants of the several states shall have liberty

to fowl and hunt in seasonable times, on the lands they hold,

and on all other lands in the United States not enclosed, and

in like man ner to fish in all navigable wa te rs , an d ot hers n ot

private property, without being restrained therein by any laws

to be passed by the legislature of the United States.

657

Four months before Virginia met, Massachusetts ratified

the Const itution, after hard-line federalists turned back an

amendment authored by Samuel Adams,

that the said Constitution be never construed to authorize

Congress to infringe the just liberty of the press, or the rights

of conscien ce; or t o prevent the people of the United States,

wh o ar e pe aceable citizens, from keepin g their own arms; or to

raise standin g arm ies, unless when necessary for t he defence

of th e U nited Sta tes . . . .

658

Likewise, while Virgin ia wa s still debating the Constitution,

New Hampshire ratified t he document and recommended

amendments, including that “Congress shall never disarm any

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1525

659. N.H. Rat ifying Convent ion, J une 21, 1788, in ORIGIN, supra note 37, at 446.

660. N.Y. Ratifying Convention, J uly 26, 1788, in ORIGIN, supra note 37, at 481.

661. See R.I. Ratifying Convention, May 29, 1790, in ORIGIN, supra note 37, at

735.

662.

That the people have a right to bear arm s for the defence of themselves and

the state; and as stan ding armies in the time of peace are dangerous to

liberty, they ought not to be kept up; and th at the military should be kept

under strict subordina tion to, and governed by, the civil power.

PENN. CONST., DECLARATION OF RIGHTS ar t. XIII (1776), excerpted in ORIGIN, supra

note 37, at 754.

663. See VT. CONST. ch. 1, art . XV (1777), excerpted in ORIGIN, supra note 37, 767

(same la ngua ge a s P en ns ylva nia).

664.

The people have a right to keep and to bear arm s for the common defence.

And as , in th e t ime of peace, armies are dan gerous to liberty, th ey ought

not to be maintained without the consent of the legislature; and the military

power sha ll alwa ys be in an exact subordinat ion to the civil au thority, and

be governed by it.

MASS. CONST., PART THE FIRST art. XVII (1780), excerp ted in ORIGIN, supra note 37,

at 773.

665. See Bogus, Hidden History, supra note 2, at 364-65.

citizen, unless such as are or have been in actual rebellion.”

659

New York’s convention concluded about a month after

Virginia’s, and New York ratified while requesting

amendments, inter alia, “[t]hat 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 defen ce of a free stat e.”

660

Rhode Island, which refused

to ratify until 1790, copied New York’s right to arms demand.

661

Long before the United States Constitution had even been

proposed, a right to arms had alrea dy been constitutionally

recognized—n orth of the Mason-Dixon line—in the

Pennsylvania Const itution,

662

the Vermont Constitution,

663

and

(more restrictively) in the Massachusetts Const itution.

664

Bogus

entirely neglects t o mention the Pennsylvania dissent and the

Samuel Ada ms proposal in Massachusetts. He provides no

explanation for why the right to arms amendment , supposedly

motivated only by Southern slave concerns, was demanded by

three Northern state conventions where slavery was

insignifica nt.

665

Thus, Bogus errs by giving the entire credit for the Secon d

Amendment to Virginia a nd the rest of the South, even though

demands for a right to bear arms came first from the North,

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1526 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

666. Bogu s briefly acknowledges the North ern views, but argues that they were

insignificant, compared to th e importance of Virginia. See id.

667. See William s, Civic Republicanism, supra note 8.

668. See Ha rdy, Second Amendment, supra not e 1. J effer son ’s m odel constit ut ion

for Virginia declared, “No freeman shall be debarred the use of arms within his own

lands or tenemen ts.” Thomas Jefferson , The Virginia Constitu tion, Third Draft, in 1

THE PAPERS OF THOMAS JEFFE RSON, 1760-1776, at 363 (195 0).

669. See sources cited supra note 1.

670. Bogus, Hidden History, supra note 2, at 344.

671. See id. at 390-407.

672. See id. at 393-95. Throughout the article, Bogus offers a one-sided catalogue

of militia failures, never a cknowledging a ny m ilitia success after 1775. See id. at 337-

44. For example, Bogus twice reminds the rea der th at the Virginia militia disgraced

itself by fleeing a t the Ba ttle of Camden, Sout h Ca rolina in 1780. See id. at 341, 345.

But Bogu s ign ore s the militia’s excellen t perform an ce a few m ont hs later in South

Carolina, at the Bat tle of Cowpens—the tur ning point of the wa r in t he South —wh ich

and such a right wa s alrea dy constitutionally established in

three northern states.

666

Bogus further errs by emphasizing

only one important Souther n inter est in the militia

(suppression of servile insurrection), while underestimating

other important Southern and Northern interests in the m ilitia

(such as deterring centralized tyranny enforced by a standing

army, or promoting civic virtue).

667

Moreover, Bogus ignores the

human rights tradition—of which Madison ’s closest political

ally and life-long friend Thomas Jefferson was an important

part—which promoted the right to arms for reasons totally

unconnected to the militia.

668

The Standard Model scholarship has provided abundant

eighteenth century historical evidence that one pu rpose of the

state militias was to resist federal t yranny, should the other

checks and balances in the gover nment fail. Another purpose

was to ensure that the people would be armed so that the

militia might be effective.

669

But Bogu s a voids discuss ing or

quoting any of these many statements by dismissing them as

“soapbox rhetoric.”

670

He makes the astonishing claim that,

despite having recently fought a revolution to overthrow a

tyrannical government, the Framers of the Constitution did not

believe in the legit imacy of armed r esistance to a tyrannical

government (and hence, the Second Amendment could not

protect the arming of the populace as a last-resort check on

despotism).

671

Bogus supports this claim by stringing together a

litany of quotes showing that the Framers (Jefferson excepted)

were horrified by Shays’ Rebellion.

672

Bogus asserts that

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1527

set th e stage for York town. See LAWRENCE E. BABITS, A DEVIL OF A WHIPPING: THE

B ATTLE OF COWPENS (1998). Ther e, t he militia was suppor ted by the Continental

Army, an d su perbly led by Br igadier Gener al Da niel Morgan. See id.

Nor does Bogus mention the militia’s success again st General Burgoyne’s 1777

Sar atoga campaign, or that in 1778-79, the Kentucky m ilitia, led by George Rogers

Clark, captured key British posts on the Wabash River in the future states of Indiana

and Illinois. The victories helped legitimize the United States’ claim to all British

territory east of the Mississippi, wh ich Britain later recognized in t he 1783 peace

treaty. See ROBERT W. COAK LE Y & STETSON CONN, THE WAR OF THE AMERICAN

REVOLUTION 60-62 (19 75); EDWARD COUN TRYMAN , A PEOPLE IN REVOLUTION: THE

AME RICAN REVOLUTION AND POLITICAL SOCIETY IN NEW YORK, 1760-1790, at 76 (1 989 );

WALTER LAFEBER, THE AMERICAN AGE: UNITED STATES FOREIGN POLIC Y AT HOME AND

ABROAD SINCE 1750, at 20 (198 9).

A recent study of George Washington’s use of the militia in Connecticut, New

York, and New Jersey explains that, while the militia could not, by itself, defeat the

Redcoats in a pitched battle, the militia was essential to American success:

Washington learned to recognize both the st rengths and t he weaknesses

of the militia. As regular soldiers, militiamen were deficient . . . . He

therefore incr easin gly detach ed Cont ine nt als to sup port them when

operating against the British army . . . . Militiamen wer e available

everywhere and could respond to sudden attacks and invasions often faster

than the army could. Wa shington t her efore used th e militia units in the

states to provide local defense, to suppress Loyalist s, a nd to r all y to t he

army in cas e of an in vasion . . . .

Washington ma de ful l use of th e par tisa n q ua lit ies of the militia forces

around him. He used them in sma ll parties t o har ass and raid th e army,

and to gua rd all the places he could not send Continentals . . . . Rather

than try to turn the militia into a regular fighting force, he used and

exploited its irregular qualities in a partisan war against the British and

Tories.

. . . His view of militiam en a tt ach ed t o th e a rm y did not cha nge from

the view presented early in the war: “all the General Officers agree that no

Dep enden ce can be put on th e militia for a Continuance in Camp, or

Regularity or Discipline dur ing the short time they may stay.” This was

Washington’s major complaint about the militiamen. He did not quest ion

their bravery, loyalty, or willin gness to fight wh en n ecessary, but he could

never accept their h abit of comin g and going wh en t hey pleased. . . .

On the other h and, militiamen had m uch t o offer, especially when

fighting on their own and as partisans, and Washington tried to take

advantage of th eir availability eve rywher e. As th e wa r ca me to an end,

Washington expressed this attitude clearly: “The Milit ia of t his Count ry

must be considered as th e Pa lladiu m of our secur ity, and the first effect ua l

resort in cas e of hostility . . . .”

MARK W. KWASNY, WASHINGTON’S PARTISAN WAR: 1775-1783, at 337-38 (1996)

(alt er at ion in original for Washington quote) (citing Letter fr om George Wa sh ington

to John Hancock (J uly 10, 1775); George Wash ington, Circular to the States (June 8,

178 3)).

673. See Bogus, Hidden History, supra note 2, at 390-96.

because the Fr am ers wer e against Daniel Shays, they must

have been against the gener al principle of revolution against

tyranny.

673

To the contrary, Shays’ Rebellion lacked t wo of the

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1528 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

674. THE DECLARATION OF INDEPENDENCE para . 2 (U.S. 1776). Some of the mor e

fervid Shaysites did claim th at the Massachusetts government wan ted t o take all

their land an d enslave them, see DAVID P. SZATMA RY, SHAY’S REBELLION: THE MAKING

OF AN AGRARIAN INSURRECTION 96-97 (1980), but the claim obviously had no credibility

among the Fr am ers of the Const itution.

675. THE DECLARATION OF INDEPE NDENCE pa ra . 19 (U.S. 1 776).

676. Id. at pa ra. 20.

essential elements which, according to the Decla ration of

Independence, were necessary justifications for a legitimate

revolution. First, the policies of the Massachusetts government,

which so aggrieved Shays and his fellow farmers in the western

part of the state, may have been mistaken and burdensome, but

they were not an attempt to enslave t he people of

Massachusetts. In contrast to the policies of King George III,

nobody could seriously describe the polices of th e

Massachusetts government as “a ll having in direct object the

establishment of an absolute Tyranny.”

674

Second, the Massachusetts government, in contrast to King

George’s government, wa s a republican one in wh ich Shays and

his fellows were represented. When the American colonists had

“Petitioned for Redress in the most humble terms . . . [and]

been answer ed by repea ted injury,”

675

the colonists’ peaceful

remedies were at an end; they had no representation in

Parliament. To accept Bogu s’ theory that the Founders were no

longer “insurrectionists” (Bogus’ term for just ifia ble revolution

against tyranny), Bogus requires us to believe that the

condemnation of Shays’ Rebellion proves that the Founders had

turned against the very political theory to which they had

pledged their “Lives,” their “Fortunes,” and their “sacred

Honor.”

676

An explanation which does not require the reader to

believe that the Founders were so ideologically inconsistent is

simply that the Framers thought revolution justified in 1776

against King George, but not in 1787 against Massachusetts.

After all, if a speaker condemns an unjustified use of force in

purported self-defense, the condemnation does not necessarily

mean that the speaker is opposed to forceful self-defense in all

circumstances.

The theory that t he Framers disapproved of revolt against

tyranny is particular ly erroneous in the case of James Ma dison ,

because in Fed eralist No. 46 Madison sketched out a scenario in

which the necessarily small federal standing army would be

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1529

677. THE FEDERALIST NO. 46 (J am es Ma dis on).

678. Id. As the rest of the essay makes clear, Madison saw the likely success of

a militia revolt a gainst tyranny as depending on t he existence of strong state

governments to lead th e milit ias. See id.

679. See Bogus, Hidden History, supra note 2, at 400-04.

680. See id. at 401.

681. Id. at 404.

682. See ORIGIN, supra note 37, at 234, 647.

opposed by “a militia amounting to near half a million of

citizens with arms in their hands” which would be able to

defeat a tyrannical standing army.

677

How could tyranny

over come “the advantage of being armed, which the Americans

possess over the people of a lmost every other nation”?

678

Bogus

labor s mightily to undo t he obviou s implications of these words,

and in the process offers some useful insights. For example,

Bogus observes that Madison was writing arguendo, since

Madison had made it clear that he expected that the federal

government would never attempt to rule tyrannically by

military force.

679

But neither this point , nor Bogus’ other points

(such as the fact that the Federalist essays were written in a

hurry),

680

undermine th e basic fact that Madison obviously

thought armed militia resistance to American federal tyranny

to be legitimate–even though Madison never expected the dire

event to take place.

That Madison apparently saw the militia as potentially

useful in resisting tyran ny cann ot be squared wit h Bogus’

assertion that the Second Amendment was only about

protecting the militia for slave patr olling and slave controlling;

nor can Madison’s words be squared with Bogus’s assertion that

except for Jeffer son none of the Framers were

“insurrectionists.” Bogu s erroneou sly states that “one cannot

read The Federalist Num ber 46 as an explanation of the Second

Amendment because, of course, it would be several more years

before Madison would write that provision.”

681

Actually, the

interval from the publication of Federalist No. 46 (January 29,

1788) to Madison’s introduction of the Bill of Rights in Congress

(June 8, 1789) was less than a yea r and a half.

682

What evidence

is ther e in this interval that Ma dison abandoned his last

“insurrectionist” thoughts? In support of his statement that the

Federalist No. 46 is not an explanation of the Second

Amendment, Bogus argues that Madison’s “support for a strong

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1530 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

683. Bogus, Hidden History, supra note 2, at 404.

684. See id.

685. Id.

686. See ROBERT A. RUTLAND, JAMES MADISON: THE FOUNDING FATHER 5 (1987).

687. Letter from J am es Ma dison to George Mater (Ja n. 7, 1787), in 9 THE

PAPERS OF JAMES MADISON 230, 231 (Ro bert Rutland ed., 1975); see also RUTLAND,

supra note 686, a t 14. T he su ppre ss ion of an y futu re Shays -like ins ur rection was of

great impor ta nce to t he Ph ila delph ia Conve nt ion, an d wa s one of the reasons that the

new Constitution gave th e nationa l governm ent power over the militia, to rescue the

militia from t he n eglect of th e stat es. See SZATMARY, supra note 674, at 129 (citing

Madison’s Notes of the Debates in the Federal Convention of 1787). The Framers’

interest in u sin g th e milit ia t o suppr ess ins ur rection s by Nor thern white farm ers of

course cont ra dict s Bogu s’s pictur e of the militia a s ir releva nt excep t for th e purposes

of crushin g Sout her n sla ve revolts.

federal government and his fear of anarchy probably both

increased.”

683

Bogus further notes that one of Madison’s

biographers concluded that Madison liked the Constitution

even better after he had finished writing the Federalist.

684

True

enough, but liking the Const itution even more does not mean

that Madison loved civil liberty any less.

In addition, writes Bogus, “The full impact of Shays’

Rebellion and lesser insu rrect ions h ad proba bly not been fully

absorbed.”

685

Bogus provides no support for this claim, and it is

preposterous. As Robert Rutland, one of Madison’s biographers

on whom Bogus does not rely, notes, Shays’ Rebellion was

precisely the event that Madison used to convince George

Washington to attend the Phila delphia Conven tion that

Madison was trying to organize.

686

Rutland also observes that

the Philadelphia Convention opened in an atmosphere of panic

engendered by Shays’ Rebellion, and Madison himself found the

Rebellion “distressing beyond measure to the zealous friends of

the Revolution.”

687

But if we are to believe Bogus, the very

Founder who organized this convention which was so stricken

by panic over Shays that it crea ted an entirely new form of

government, wa s h imself not feelin g “th e full impa ct” of the

Rebellion. Madison was a pparently a rather odd person : he

used Sh ays’ Rebellion to convin ce Am er ica’s elite that a new

government was desperately needed, and led a campaign that

spanned the continent in order to get the new government

approved; but perhaps suffering from some form of psychic

numbing, Madison never felt the full impa ct of Sh ays’ Rebellion

until the next year.

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1531

688. Bogus, Hidden History, supra note 2, at 404.

689. RUTLAND, supra not e 686, a t 168 (cit ing Let ter fr om J am es M adison to

Thomas Jeffers on (Fe b. 28, 1801 )).

690. James Madison, First Inaugural Address, March 4, 1809.

Finally, writes Bogus, Madison’s insurrectionary

inclin ations from Federalist No. 46 cannot be carried forward

seventeen months into the Second Am en dm ent because, in the

interval, the “rhetoric that had been so useful in stimulating

revolution, such as romanticizing the militia and railing against

the evils of a standing army, must have begun to have a

different effect on Madison as it became th e tool of anti-

Federalist opposition.”

688

Again, there is no evidence for Bogus’

attempted mind reading.

The historical record makes it abundantly clear that to

James Madison, “the rhetoric” about the virtues of militias and

the terrors of standing armies was not a mere talking point

that he abandoned once his cherished Const itution became

operative. In 1801, the political party created by J efferson and

Madison took power after winning the election of 1800—despite

the problems caused by the elect ion being thrown into the

House of Repr esen tatives by Vice-Presiden t Aaron Burr’s

chicanery. “What had saved America from the spectacle of

bloodsh ed?” ask s Robert Rutland, the compiler of the Madison

Papers.

In Ma dison ’s m in d t he a nswer wa s cr ysta l-clea r: th e la ck of a

standing arm y. He never expected the anti-Jefferson forces to

win, he con fess ed to the n ewly elected p re siden t, for it would

have been im possible to oppose the people’s will “without any

military force to a bet usu rp at ion.” Ever t he optim ist , Ma dis on

said the wh ole exp erien ce had been beneficial. “And what a

lesson to Am er ica & t he w orld, is g iven by th e efficacy of t he

pu bl ic w ill w h en ther e i s n o a rm y t o b e t urn ed ags t. it !”

689

In his First Inaugural Address, in March 1809, President

Madison urged Americans during a period leading up to war

with Great Britain, “to keep within the requisite limits a

standing military force, always remembering that an armed

and trained militia is the fir mest bu lwark of republics—t hat

without standing armies their liberty can never be in danger,

nor with large ones safe.”

690

Not only did Madison still prefer

militias to standing armies, he obviously saw the militia as

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1532 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

691. 1 W. & M., Sess. 2, ch. 2 (1689).

692. Bogus, Hidden History, supra note 2, at 384. Bogus is corr ect in saying that

the British provision gave Par liament wide latitude in controlling who could own

what types of gun s, bu t wron g to con clud e tha t t he pr ovision’s pla in lan guage did not

recognize a right of Englishmen . Bogus rea sons that since the “as allowed by law”

clause recognized Parliamentary authority to limit arms ownership, the entire clause

is mer ely an assert ion of Parliament ar y supr ema cy against t he Kin g with regard to

arms contr ol. Id. at 383-85. The assertion that a subordinate clause overwhelms and

obliterates the plain mea ning of the main clause is an interpr etive m ode which Bogus

applies to both th e E nglish Decla ra tion of Righ ts an d the American Secon d

Amendment.

Bogus leads h imself int o error by r ea soning th at sin ce t he Conven tion Parliament

(which gave the crown to William and Mary, after the Glorious Revolut ion) was a ngry

that the previous King, Jam es I I, h ad at te mpte d t o disar m m ost of th e popula tion ,

Parliament was merely asserting its own supremacy regarding arms control. But

everything that James II did to take arms away from English subjects was pursuant

to duly-elected Parliamentar y statutes, including the Game Act of 1671. James II had

never asserted that he, rather than Parliament, could make the gun laws; he had

simply rigorous ly en force d the gun s laws ma de by the Re stor at ion Parliam ent s. See

MALCOM, supra note 1, at 94-112. Bogus does not provide one example of any seizu re

of private arms by King James II that went beyond the bounds of what Parliament’s

laws authorized.

Of cours e, t he me re re cogn it ion of an individual right by Parliament did not do

much to protect the right, beyond making a moral statement. In a system of

Parliamentary supremacy an d with out m eaningful judicial review, future Parliaments

could easily undo what the 1689 Parliament ha d done. And gi ven th e br ea dt h of th e

“suitable to t he ir conditions, an d a s allowed by law” lan guage, one could argue that,

even today, Parliam ent has not infringed the right, since modern English subjects are

allowed to have manua l action rifles and shotguns, after passin g th rou gh a r igor ous

licensing process .

693. Bogus, Hidden History, supra note 2, at 386.

694. Id. at 366.

useful for somet hing other than catching slaves—namely

pr otection against foreign invasion.

The English Declaration of Rights of 1689 proclaimed

“[t]hat the su bjects which are Protestants m ay have a rms for

their defence suitable to their conditions and as allowed by

law.”

691

Bogus argues that this provision “did not give

Protestants an individual righ t to have a rms; it decreed that

Parliament, and not the Crown, would determine the right of

Protestants to have arms.”

692

Madison, Bogus informs us, “was

almost certainly influenced by the right to arms provision of the

Declar at ion,” and “Madison followed Parliament’s solution” by

not inserting an individual right into the Second Amendment.

693

“We do not know why Ma dison chose to dr aft his pr ovisions

precisely this way. He did not explain his thinking in any

speech or letter that has come to light,” writes Bogus.

694

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1533

695. James Madison, N otes for S peech in Congress Supporting Amendments, June

8, 1789, in ORIGIN, supra note 37, at 645.

696. Id.

697. FEDERAL G AZETTE (Phila delph ia), J une 18, 1789, at 2, in ORIGIN, supra note

37, at 671.

Actually, Madison did explain his drafting choices, and that

explanation makes it clear that Madison (unlike Bogus) viewed

the English Declaration as protecting an individual right, and

that Madison wanted the American arms right to be broader

and more protective of individual rights than was the English

ver sion.

Madison’s notes for his speech in Congress introducing the

Bill of Rights explained that the proposals were to deal with the

“omission of guards in favr. of rights & libertys.”

695

His

amendments “relate 1st. to private rights.” A Bill of Rights was

“useful—not essential.” There was a “fallacy on both

sides—especy as to English Decln. of Rts.” First, the

Declaration was a “mere act of parlt.” Second, the English

Declaration was too narrow; it omitted certain rights and

protected others too narrowly. In particular, there was “no

freedom of pr ess—Conscience.” Th ere was n o pr ohibition on

“Gl. Warrants” and no protection for “Habs. corpus.” Nor was

there a guarantee of “jury in Civil Causes” or a ban on “criml.

attainders.” Lastly, the Declaration protected only “arms to

Protestts.”—appa rently t oo narrow a slice of popu lation.

696

And there is more evidence, apparently hidden from Bogus,

about what Madison’s Bill of Rights meant. A few days after

Madison introduced the Bill of Rights, Madison’s political ally

Tench Coxe (who would serve President Madison’s

administration as the Purveyor of Public Su pplies, in charge of

procuring arms for the militia) wrote the most comprehensive

section-by-section exposit ion on t he Bill of Rights to be

published du ring it s r atifica tion period. Regarding the Second

Amendment, Coxe explained:

As civil ru lers, not having th eir du ty to t he people, duly before

them, may attempt to tyrannize, and as th e military forces

which shall be occasionally raised to defend our country, might

pervert th eir pow er to t he in jury of th eir fellow-citize ns, the

people ar e confirmed by th e next ar ticle in their right to keep

and bear their private arms.

697

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1534 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

698. See Coxe to Ma dison, Jun e 18, 1789, in ORIGIN, supra note 37, at 672.

699. Madison to Coxe, J une 24, 1789, in ORIGIN, supra note 37, at 673.

700. Id. at 674.

701. See JACOB E. COOKE, TENCH COXE AND THE EARLY REPUBLIC 113 (1978).

702. Bog us, Hidden History, supra note 2, at 369.

703. See id. at 408.

Coxe sent a copy of his essay to Madison, along with a letter

of the same date.

698

Madison wrote back acknowledging “your

favor of the 18th. instant. The printed rema rks inclosed in it

are already I find in the Gazettes her e [New York].”

699

Madison

approvingly added that ratification of the amendments “will

however be greatly favored by explanatory strictures of a

healing tendency, and is t herefor e a lready indebt ed to the co-

operation of your pen.”

700

Madison respected Coxe’s ceaseless

work on behalf of the proposed Constitution in 1787-88, and

liked some of Coxe’s feder alist essays so much that Madison

successfully urged Virginia newspapers to reprint them.

701

course, Madison’s apprecia tive endor sement of Coxe’s essay on

the Bill of Rights did not specifically say “I endorse every single

statement made in your essa y.” On the other hand, if Ma dison

disagreed with the prolific author’s analysis, Madison might

have been expected to correct him, so as to prevent the

propagation of further errors. Historians may debate how much

weight to give Coxe’s explica tion (wh ich was u ncontradicted

during the ratifying period) and Madison’s approving letter to

Coxe. But it is astounding that Bogus, in a hundred-page article

filled wit h specu lation about Madison’s supposed hidden

thoughts, fails even to mention some rather notable written

evidence about what Madison and his contemporaries rea lly

thought.

Bogus’ theory is also self-contradictory. He asserts that

Madison wrote the Second Amendment the way he did because,

“Specifically, Madison sought to assure that Congress’s power

to arm the militia would not be used to disarm the militia.”

702

But then Bogus informs us that Congress can, using its power

to “organize” the militia, declare that the militia consists only of

a small group (such as the modern National Guard) and disarm

everyone else.

703

Bogus thus joins Garry Wills in the assertion

that the Second Amendment effectively means nothing at all.

But while Wills considers Madison a devious trickster —with a

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1535

704. See Wills, supra note 5.

705. House of Representatives, Ju ly 28, 1789, in ORIGIN, supra note 37, at 680.

706. See Bogus, Hidden History, supra note 2, at 370.

707. House of Represent at ives, Aug. 17, 1789, in ORIGIN, supra note 37, at 695.

708. Bogus, Hidden History, supra note 2, at 371.

709. See id.

clever ploy of draftsmanship that meant nothing and fooled the

entire nation

704

—the implication drawn from the Bogus article

is that Madison wa s a fool; Ma dison supposedly drafted an

amendment that was intended t o pr event Congress fr om

disarming the state militias; but despite Madison’s amendment,

Congress can do exactly what the amendment was designed to

prevent.

Here, Bogus is directly contradicted by t he h istorical record.

Madison’s original Secon d Am endm en t concluded with the

provision “but no person religiously scrupulous shall be

compelled to bear arm s.”

705

Although Bogus notes that

Massachusetts Congressm an Elbr idge Ger ry wa nted Ma dison ’s

clause narrowed,

706

Bogus does not inform the reader of Gerry’s

specific objection: “Now, I am apprehensive, sir, that this clause

would give an opportunity to the people in power to destroy the

constitution itself. They can declare who are those religiously

scrupulous, and prevent them from bearing arms.”

707

In other

words, Representative Gerry was afraid that Congress could

use the religious exemption as a pretext to exclude large

numbers of people from the militia. Representative Gerry was

attempting to ensure that Congress would not have the power

to do what Bogus asserts Congress can do: to replace the

universal militia with a select militia, and to disarm everyone

not in the select militia.

Bogus’ unsupported claim s to know what Madison t hought

are buttressed by claims to know what everyone else thought.

We are informed by Bogus that “Madison’s colleagues in the

House and Senate almost certainly considered the Second

Amendment to be part of the slavery compromise.”

708

But Bogus

provides no evidence, other than to list the slavery compromises

that were in cluded in the or iginal Con st itution.

709

Putting aside evidence from the Founding Era, a powerful

refutation of Bogus’ thesis can be found in the Appendix to

George Ticknor Curtis’ Constitutional History of the United

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1536 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

710. See discussion of Curtis supra notes 503-10 an d accompanying text.

711. See 2 CURTIS, supra note 507, at 580.

712. Id.

713. See id. at 580-88.

714. See id. at 584-85.

715. See id. at 580-88.

716. See supra notes 288-309 an d accompanying text.

States.

710

Among Curtis’ appendices is the full text of Anti-

Slavery Tracts published around 1833.

711

The tract is an

abolitionist argument that the United States Constitution “is a

pro-slavery instr ument.”

712

The tract analyzes in detail the text

of the Constitution, the intent of the Framers, the

implem entation of the Const itution by Congress, and the

constitutional law decisions of t he Supr em e Court, all of which

support slaver y, a ccording to the t ract.

713

In each of the four

parts of analysis, the tract points t o Article I, s ect ion 8, which

gives Congress t he authority to call forth the m ilitia to suppress

insurrection. The tract even quotes from the Virginia ratifying

convention, in which George Nicholas a nd J ames Madison both

argued that Article I, section 8 does not diminish a state’s

authority to use its own militia to crush an insurrection; rather,

the clause allows Congress to call forth the militias from other

st ates, in order to assist the suppression of the in su rrection.

714

Yet while Article I, Sect ion 8 is, quite plausibly, shown to be

a proslavery part of the Constitution, the Second Amendmen t is

never mentioned in that tract.

715

If, as Bogus argues, the only

important reason for the Amendment was to suppress slave

revolts, it is rather strange that the antislavery,

anticonstitution tract never mentioned the Second Amendment.

That one purpose of the militia was to suppress “servile

insurrection,” and that the Richmond Convention debates

discussed this militia purpose, was not “hidden,” but was

perfectly obvious t o antebellum America. Bu t as for the Secon d

Amendment, it was, so far as the known record indicates, never

used to bolster the argument (from either the abolitionist or the

slave-owning side) that the Const itution was m eant to pr otect

slavery. To the contrary, the Second Amendment appeared in

the antebellum writings of Lysander Spooner and J oel Tiffany

for just the opposite proposition: that the Second Amendment

was incompatible with slavery.

716

If the Second Amendment

were a slaver y-protecting device, then the Reconstruction

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1537

717. See supra notes 333-58 an d accompanying text.

718. See Wills, supra note 5.

Congresses would likely have treated it with the disdain

reserved for other const itutional theories—lik e t he doctrine of

nullification and interposition—that had been invoked to shield

slavery from federal interference. Congress, of cour se, did just

the opposite; Congress venerated the Second Amendment as a

right of individual freedmen to protect themselves against the

Ku Klux Klan and other descendants of the slave patrols.

717

Like Garry Wills’ theory that the Second Amendment was a

fraud known only to James Madison,

718

Carl Bogus’ Hidden

History is contrary to the writings of the Founders and to the

interpretive record of the century following the creation of the

Secon d Amendment. One testament to the overwhelming

evidence for the individual rights Standard Model is that

opponents of the model must rely on theories which claim to

read the secret thoughts of James Madison; secret thoughts

which are claimed to be more important than what James

Madison and his allies actually said and wrote.

D. Firearms Policy for the Twenty-first Century

Following a period of scholarly neglect in mid-century, the

Second Amendment is currently enjoying a renaissance of

scholarly interest as the twentieth centur y concludes. As

scholars attempt to provide constitutional guidance for the

twenty-first century, it is worth rem em bering the in tellect ual

heritage of the nineteenth century discussed in this article.

1. Who is protected by the Second Amendment?

This is the easiest question; the answer is “the people of t he

United States.” The right belongs t o all people, n ot ju st to

militia members or to state governments. According to

Robertson, there are im plicit except ions, su ch as prisoners.

Women were not subject to militia duty in the nineteenth

century, but no one appears to have argued that women could

legally be barr ed from owning and carrying guns.

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1538 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

2. Does the Second Am endm ent limit the states?

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1539

719. 307 U.S. 174 (1939).

720. See id. at 178.

This is the hardest question. Presser and the dicta in

Cruikshank su ggest not, bu t these two cases are part of a

period of constricted Fourteenth Amendment interpretation

which the Supreme Court rejected in the twentieth century.

The new research, conducted by scholars such as Richard Aynes

and Stephen H albrook, into the Congressional creat ion of the

Fourteenth Amendment provide additional justification for the

rejection of the Slaughter-House/Cruikshank/Presser lin e of

cases as inconsist ent wit h the or iginal inten t of the Fourteenth

Amendment—or at least the original intent of the Radical

Repu blicans who created and promoted the Amendment.

Perhaps the twenty-first century will put an end to over 125

years of result-oriented Fourteenth Amendment jurisprudence

and simply make the whole Bill of Rights enforceable against

the states through the Privileges and Immunities Clause. Such

a result would be more logically defensible than the current

practice, under which incorporated “due process” includes

everything in the fir st nine a rticles of the Bill of Rights except

the Second and Third Amendments and the right to grand jury

indictment.

3. What kind of “arms”?

The dominant line of nineteenth century inter pretation

protected ownership only of weapons suitable for “civilized

warfare.” This standard was adopted by the U.S. Supreme

Court in the 1939 United States v. Miller case.

719

There, the

Court allowed defendants who never claimed to be part of any

militia (they were bootleggers) t o raise a Second Am en dm en t

claim. But the Supr em e Court rejected the federal district

court’s determinat ion that a federal law requiring the

registration and taxation of sawed-off shotguns was facially

invalid as a violation of the Second Amendment. Rather, said

the Miller Court, a weapon is only covered by t he Second

Amendment if it might contribute to the efficiency of a well-

regulated militia. And the Court would not take ju dicial notice

of militia uses for sawed-off shotguns.

720

The case was

remanded for trial (at which the defendants could have offered

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1540 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

721. See Stat e v. Delgado, 692 P.2d 610 (Or. 1984) (switchblades); Stat e v.

Blocker, 630 P. 2d 824 (Or . 1981) (b illy clubs).

722. S ee, e.g., Cent er t o Prevent H andgun Violence, Center Files Suits Against

Assault Weapon Maker For Victims of California Shooting, LEG AL ACTION RPTR. (Sept.

1994) (quoting from the litigation arm of Handgu n Cont rol: “In filing these lawsuits,

the Cen te r h ope s fin ally t o mak e t he ma nu fact ur er s of these weapons of war and

their accessories pay for at least some of the cost th eir pr odu cts impose on the

victims of gun viole nce ”).

723. See David T. Ha rdy, The Firearms Owners’ Protection Act: A Historical and

Legal Perspective, 17 CUMB. L. REV . 585, 674 (1987) (citing statement by Director of

the Bureau of Alcohol, Tobacco and Firearms that “[r]egistered machine gu ns which

are involved in crimes ar e so minimal so as not to be considered a law enforcement

evidence that sawed-off shotguns have utility in a militia

cont ext ). However, the trial was never held because the

defendants disappeared while the government’s appeal of the

indictment dismissal was pending.

A minority line of nineteenth century arms rights

analysis—adopted in this century, for exam ple, by the Oregon

Supreme Court—goes further. This analysis protects not just

militia-type weapons, but also weapons which are useful for

personal defense, even if not useful in a military context. Thus,

the Oregon state constitution’s right to arms was held to

protect the possession of billy clubs and switchbla des—weapon s

which were pointedly excluded from protection by the civilized

warfare cases.

721

With the civilized warfare test as the constitutional

minimum, efforts to ban machine guns or ordinary guns that

look like machine guns (so-called “assault weapons”) appear

constitutionally du biou s. Th ese r ifles a re selected for

prohibition because gun control lobbies claim that the rifles are

“weapons of war.”

722

This claim, if t rue, a mounts t o an

admission that the r ifles lie a t the core of the Second

Amendment.

In the 1990s, once people understand that “assault

weapons” are firearms that are cosmetically threatening, but

functionally indistinguishable from other long guns, they may

be more willing to accord t hese arms a place within the right to

keep and bear arm s. Machine gun s, in contr ast, really are

functionally different. Machine guns are rarely used in crime;

and lawfully possessed machine guns, which must be registered

with the federal government, are essentially absent from the

world of gun crime.

723

Nevertheless, even many people who

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1541

pr oble m”).

724. See Kat es, The Second Amendment: A Dialogue, supra note 1, at 146-48;

Kates, Hand gun Prohibit ion , supra note 1, at 261-64. The case which supplies Kates’

rule, Sir J ohn Knight’s Case, 87 En g. Rep. 75, 90 En g. Rep. 330 (King ’s Ben ch 1 687 ),

created the ru le in the cont ext of carr ying unconcealed arms in public. A r ul e

designed to protect people’s sensibilities in pu blic spaces shou ld n ot be applied to t he

mere possess ion of a wea pon on p rivat e pr oper ty. In a privat e sp ace, no on e from “the

public” is at risk of being terrified. Cer tain members of the public may be personally

offended by the knowle dge th at som eon e else ma y be in pr iva te pos session of a

machine gun, just as other members of the public may be offended that someone may

be engaged in a par ticular type of sex act. The legitim ate legal objective of protecting

public areas from undu e disturbance is ent irely distinct from t he illegitimate (but all

too common) objective of satisfying the desire of certain people to eradicate the

unseen private behavior of other adults. By exten ding Sir J ohn Knight’s Case from

public spaces into private homes, Kates wrongly conflates two distinct legal

interests—an interest in pu blic tranqu ility (an interest which deserves respect) and

an intere st in pr iva te re pr ession (an inte rest wh ich a tolerant society may give no

legal force).

725. Stephen Halbrook, What the Framers Intended: A Linguistic Analysis of the

Second Amendm ent Right to “Bear Arms”, 49 LAW & CONTEMP. PROBS. 151 (1986).

726. Id. at 160.

consider themselves strong Second Amendment supporters

cannot bear the thought of a constitutional right to own

machine guns.

The civilized warfare test, however , offer s n o way out of this

problem. Accordingly, some of the twentieth century Standard

Modelers propose alternat ive tests. For example, Don Kates,

relying on commentary stemming from a 1687 English case

which allowed the carrying of arms in pu blic places for

protection so long as the circumstances of the carrying were not

apt to terrify the populace, proposes a test with a prong that

excludes wea pon s which “terrify” the public.

724

Stephen Halbrook suggests that “artillery pieces, tanks,

nuclear devices and other heavy ordinances are not

constitutionally protected” arms, nor are “grenades, bombs,

bazookas and other devices . . . which have never been

commonly possessed for self-defense.”

725

But the Halbrook test

sidesteps the fact that militia uses, not just personal defense

uses, are part of the core of the Second Amendment. Moreover,

the Halbrook test could allow governments to ban new types of

guns or weapons, since those weapons, being new, “have never

been commonly possessed for self-defense.”

726

Further, the test

could allow Second Amendment technology to be frozen. Such a

ban would be like the government claiming that new

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1542 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

727. See Cha rles W. Pate, Researching th e Martial .2 5 Colt Pistol, MAN AT ARMS,

Jan.-Feb. 1995, at 20-29.

728. See T. Markus Funk, Note, The Melting Point Case-in-Point, 85 J. CRIM. L.

& CRIMINOLOGY 764 (199 5).

communications devices were unprotected by the First

Amen dment simply because they have never before been

commonly used for speech.

Just as the civilized warfare test protects firearms that

many person s want excluded fr om the Second Amendment, the

test excludes firearms that many persons want to be included.

The civilized warfare cases protected large handguns, but in

some applications excluded small, highly concealable ha ndguns.

This would suggest that modern ban s on small, inexpensive

handguns might not violate the Second Amendment. On the

other hand, small handguns, such as the Colt .25 pistol, were

used by the United States military during the Second World

War.

727

Of course, anyone using this test to make such an

argument must also accept the flip side of the civilized warfare

coin: “assault weapon” prohibition is plainly unconstitutional.

The nineteenth century minority theory, however, would

recognize small, relatively inexpensive handguns as highly

suitable for personal defense and accord them Second

Amendment protection regardless of their militia utility.

Twentieth century constitutional law reflects a special concern

for problems of minorities and the poor that was not present in

nineteenth century law. Since a small handgun may be the only

effective means of protection wh ich is afforda ble to a poor

person, and since the poor and minorities tend to receive

infer ior police protect ion, modern Equal Protection analysis

might find some problems with banning inexpensive guns, even

if one sets aside the Second Amendment.

728

But under the main

nineteenth century line of cases, opponents of banning small

handguns must overcome the presumption in those cases that

small handguns are not suitable militia weapons; perhaps the

frequent and successful use of small handguns in twentieth

century partisan warfare against the Nazis and other

oppressive regimes offers one potential line of argument.

Twenty-first century jurisprudence might update the

civilized warfare test by changing the focus from the military to

the police. The modern American police, especially at the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1543

729. See DAVID B. KOPEL & PAUL H. BLACKM AN, NO MORE WACOS: WHAT’S WRONG

WITH FEDERAL LAW ENFORCEME NT AND HOW TO FIX IT (199 7).

730. See supra note 186 and accompanying text.

731. The states are: Alabama, Alaska, Arizona, Arkansas, Connecticut, Florida,

Georgia, Idaho, Indiana, Kentucky, Louisiana, Maine, Mississippi, Montana, Nevada,

New Hampshire, Nort h Ca rolina, Nort h Dakota, Oklah oma, Or egon, Pennsylvan ia,

South Carolina , South Dakota, Tennessee, Texas, Uta h, Verm ont, Virgin ia,

Washington, West Virginia and Wyomin g. S ee John R. Lott , Jr., Gu ns & V iolen ce:

Does Allowing Law-abiding Citizens to Carry Concealed Handguns S ave Lives?, 31

VAL. U. L. REV. 355, 357 n.9 (1997).

federal level, resemble in many regards the standing army

which so concerned the founders. While the American army is

geared towards overseas warfar e, the police are oriented

towards the type of internal order functions (e.g., su pp ression of

riots) which were among traditional militia duties. Accordingly,

the twenty-first century question “what are suitable militia-

type arms?” might be answered, “arms that are typical of, or

suitable for, police duty.”

By the modernized test, high-quality handguns (both

revolvers and semiautomatics) would lie at the core. Smaller,

less expensive handguns (frequently carried by police officers as

back-up weapons, often in ankle holsters) would also pass the

test easily. Ordinary shotguns and rifles (often carried in patrol

cars) wou ld also be pr otected. Ma chine gu ns a nd ot her weapon s

of war are not curren tly ordinary police equipment, although

they are becoming common in special attack units.

729

Fin ally, Noah Webster’s dictionary reminds us that “arms”

are not just weapon s. “Arm s” also includes defensive a rmor.

730

This suggests very serious constitutional problems with

proposals to outlaw possession of bullet-resistant body arm or by

persons outside the government.

4. Can th e carrying of w eapons be controlled?

Thirty-one states now have laws allowing ordinary citizens

to carry fir ea rms for pr otect ion.

731

Thirty of those states require

a licensing process, and some of them require training.

Vermont allows concealed carry without a license. While the

concealed carry licensing laws are supported by the National

Rifle Association (NRA), other gun rights groups, such as Gun

Owners of America (GOA), argue that requiring a license for

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1544 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

732. See Gun Owners of America, Why Adopt a Vermont-style CCW Law? (Apr.

199 7), availabl e online <htt p://cgibin1.erols.com/crfields/vtcarry.htm>.

733. 12 Ky. (2 Litt .) 90 (1822).

concealed carry is no more legitimate than requiring a license

to go to church or to buy a book.

732

The GOA position is consistent with the first gun rights

case decided in the United St ates, Bliss v. Commonwealth.

733

But the jurisprudence of the nineteenth century from then

onward is on the other side. The weight of nineteenth century

precedent would allow sever e restrictions or perhaps even a

complete prohibition on concealed carry. Consequently, a fairly

administered licensing system would pose no constitutional

problem under the main line of nineteenth century cases.

But that same line of precedent also affirms the right to

open carry, and some of that precedent suggests that even a

licensing procedure for open carry would be unconstitutional. In

the 1990s, this has u nacceptable policy implications for som e

people; the thought of seeing a person on the street (other than

a policeman) wearing a handgun in a holster m ay be dist urbing.

Thus, concealed carry laws (like la ws allowing the sale of adult

magazines and videos in adults-only stores, but bar ring the

depiction of adu lt content in storefronts or other public venues)

reflect 1990s sensibilities. As a legacy of nineteenth century

constitutional interpretation, many states, especially in the

West, have no prohibition on open carry, even though the right

to open carry is rarely exercised in urba n areas. Arizon a,

however, not only has no law against open carry, but also

allows people to exercise that right. If one looks carefully, one

can find or dinary people walking down the streets of P hoenix or

Tucson with unconcealed guns in belt holsters.

Although the issues of the legitim acy of licensing and of

concealed vs. open carry will continue to be debated, the

nineteenth century jurisprudence reminds us that the right to

carry in some form is guaranteed by the right to keep and bear

arms.

5. Repealing or ignoring the Second Am endm ent

In the twentieth century, some courts have followed the lead

of Buzzard and Salina in rein terpr et ing the Secon d

Amendment or a state analogue as guaranteeing no right at

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1545

734. S ee, e.g., United States v. Wa rin, 530 F. 2d 103 (6t h C ir. 1976);

Commonwealth v. Davis, 343 N.E.2d 847 (Ma ss. 1976).

735. See David B. Kopel et al., A T ale of T hree Cities: The R igh t to Bear Arms

in State Courts, 68 TEMPLE L. REV. 1177 (1995) (discu ssing cases in Colora do and

Oh io).

736. United St at es v. Cru iksh an k, 92 U .S. 542 , 551 (1875).

all.

734

Other courts have gone almost as far, recognizing an

individual right to ar ms, but upholding any gun law short of a

total prohibition on all guns—so long as the law passes the

rational basis test, leniently applied.

735

Brooklyn Congressman

Major Owens has introduced legislation to repeal the Second

Amendment. The nineteenth century helps us remember why

so many otherwise law-abiding gun owners will not obey the

prohibitory or near-prohibitory laws made possible by the

repeal or judicial nullification of the right to keep and bear

arms.

Cruikshank teaches us that the right to bear arms, while

guaranteed by the Constitut ion, was not created by the

Const itution. Rather, it “is found wher ever civilization

exists.”

736

Thus, rega rdless of what becomes of the Second

Amendment, the right to arms will not be negated. In a 1993

article in The Public Interest, attorney Jeffrey Snyder wrote:

Those wh o call for the repeal of the Second Amendmen t so

that we ca n r eally begin controlling firearm s betray a serious

misunderstanding of the Bill of Rights. The Bill of Rights does

not gran t r igh ts to t he people, such that its repe al w ould

legitimat ely confer upon government the powers otherwise

proscribed. . . .

. . . The repeal of the Second Amendment would no more

render the outlawing of firearms legitimate than the r epea l of

the due process clause of the Fifth Amen dment would

authorize th e gover nmen t t o impr ison an d kill people at will. A

government that abrogates any of the Bill of Righ ts, wit h or

without ma joritarian approval, forever acts illegitimately,

becomes tyrannical, and loses the moral right to govern.

This is th e uncom promising understan din g reflected in t he

warning th at America’s gun owners will not go gent ly into that

good, ut opian n ight: “You can ha ve m y gu n w hen you pry it

from my cold, dead hands.” While liberals take this statement

as evid en ce of th e retrogra de, violen t n at ure of gun own er s, we

gun owners hope that liberals hold equally strong sentiments

about their print ing presses, word processors, and television

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1546 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

737. J effr ey Snyd er, A Nation of Cowards, PUB. INTEREST, Fall 1993, at 40, 54-55

(1993); cf. Nicholas J . Johnson, Beyond the S econd Am endm ent: An In divid ual R ight

to Arm s Viewed T hroug h t he N inth Am end m ent , 24 RUTGERS L.J. 1 (1992) (asserting

that traditional sou rces of Nint h Am en dmen t la w—in clud ing Anglo-Amer ican his tor y

and natural rights theory—suggest that the r ight to own a han dgun sh ould be

considered an un en um er at ed const itut ion al ri ght if th e right is not located elsewhere

in th e Cons titu tion).

738. For example, Ju dge Lacy, the only nineteenth century judge who ever had

to argue for an individual rights view from a dissenting opinion, wrote:

Can it be doubted, that if the Legislature, in moments of high political

excitement or of revolution, were to pass an act disarming the whole

popu lat ion of the State, that such an act would be ut ter ly void, not only

because it violated the spirit and ten or the Constitution, bu t because it

invaded the original rights of natura l justice?

. . . .

. . . [S]uppose th e Legislature pass an act, that a man should not keep

private arms in his own house secretly, or about his person conce aled,

although they should be in every way n ecessary, in defence of his life,

liberty, or property. Can it be doubt ed th at such an act would be a palpa ble

infr act ion of the Constitution, a s well as an invasion of the natural right s

of society?

State v. Buzza rd , 4 Ar k. 18, 36-3 8 (18 42) (L acy, J ., diss en ting ).

739. The greatest excep tion s were th e Alien & Sedition Acts (which expired

during the J efferson administr ation), the ante-bellum suppression of abolitionism in

the South (one of the abuses that eventually prompted t he Fou rt eent h Am en dm en t),

and th e Com st ock Act (allow ing crim ina l pr osecu tion for sending sexually-oriented

material through the mail).

740. See David M. Rabban, The Free Speech League, the ACLU, and Changing

Conceptions of Free Speech in Am erican History, 47 STAN . L. REV. 47, 53 (1 992 ); see

also DAVID M. RABBAN , FREE SPEECH IN ITS FORGOTTEN YEARS (199 7).

cameras. Th e republic depen ds upon ferven t d evot ion to a ll our

fundamental rights.

737

This was a radical and provocative statement in 1993, but

conven tional wisdom to virtually every nineteenth century legal

commentator and judge who wrote about the right to arms.

738

Persons who loathe the idea of firearms possession by anyone

except government employees must understand the depth and

intensity of the moral position they are setting out to destroy.

6. The First Am endm ent

During the nineteenth century, speech in America was

generally free.

739

But the assassination of President McKinley

in 1901 sparked increasingly sever e controls on core polit ical

speech—especially speech by socialists and anarchists

criticizing the government.

740

Repression grew even more severe

as a result of World War I, with almost any critic of the war at

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1547

741. See Rabban , supra note 740, at 53.

742. See Br an denb ur g v. O hio, 39 5 U.S. 444 (196 9).

743. Rabban, supra note 740, at 77.

risk for federal prosecution.

741

Not until many decades later , in

Brandenburg v. Ohio, did the Supreme Court fully defend the

core of the First Amendment, allowing speakers to denounce

the legitimacy of the central government, even to suggest that

it should be overthrown, so long as the speech did not incite

violence.

742

Perhaps one reason that it took so long for the Court and

the Amer ican pu blic to come t o this view of the First

Amendment was that the First Amendment was examined in

isolation. Had the First Amendment examination looked next

door —at the Second Amendment and its nineteenth century

interpretive tradition—the examination would almost

immediately have d iscover ed that the core of the Second

Amendment was r et aining the ability of the American people to

overthrow a tyrannical central government. If the Framers

could recognize that democratic elections, checks and balances,

and the rest of the Constitution’s safeguards might one day fail,

if the Framers could contemplate the risk that the federal

government might one day break the bounds of the Const itution

and become a tyranny, and if the Framers could guarantee the

right to resist tyranny by guaranteeing the possession of ar ms

through the Second Amendment, then a fortiori, speech wh ich

merely questioned the legitimacy of the government would not

be criminal.

The leading free speech advocates of the early twentieth

century understood this point. Before there was an American

Civil Liberties Union, there was a Free Speech League, led by

Theodore Schroeder. Schroeder’s group was the first in

Amer ican history to defend the rights of all speakers on all

subjects, based on the principles of th e First Amendment.

Journalist H.L. Mencken wrote that Schroeder had “done more

for free expression in America than any other.”

743

Schroeder’s 1916 book Free Speech for Radicals used the

Second Amendment to bolster his argument for a strong First

Amendment:

[U]nabridged free speech means the right to advocat e treason

(or lesser crimes) so long as no overt crimina l act is induced as

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1548 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

a direct consequ en ce of it s a dvocacy. We m ust in qu ire h ow far

this conclusion is confirmed by t he con stitu tion al guarantee to

carry arms.

Aga in the obvious import is to promote a state of

preparedness for self-defense even against th e in vasion s of

government, because only governm ents have ever disarm ed

any considera ble class of people a s a means toward their

enslavement. It remains to ask h ow this view is supported by

th e h istoric con flicts pr eced ing our Amer ican Revolu tion .

Our re volu tion only extended the prin ciples of freedom of

the English revolution of 1688. At th at tim e, to p reclude the

government from going into rebellion against the people and to

ch eck its power, th e revolu tion ists pla nt ed t hemselves firm ly

upon th ese pr oposit ions: (1) The illegality of raising money for

the use of the Crown without grant of Parliament; (2) The

illega lity of the power claimed by the king to suspend laws or

the execu tion of laws ; (3) Th e illegality of a st anding army

without consent of Parliament.

Here, as in the case of Magna Charta or our American

revolutions, parchment liberties are not long respected unless

backed up by an ad equ at e public opinion and physical force. So

these restrictions like the others wer e ignored when in the

cont est for power this seemed desirable. Let us not forget that

it has always been merely a cont est for pow er ra th er th an for

principles, though the latter sometimes furn ished the pretext

behind which the lust for power was bulwark ed. Thu s it

happened that often the precedents and principles of liberty

were promoted even by tories.

In the E nglish Bill of Rights dated Feb. 13, 1688, among

the grievances char ged an d to be elim ina ted was the “keeping

a standing a rm y with in th e kingdom in tim e of pe ace wit hout

consent of parliament,” which supposedly represents the

people. Another complaint wa s that of “cau sin g sever al good

subjects, being protestants, to be disarm ed and employed

contrary to law.” If we a re to er ect t his complaint against

disarming part of the people into a general principle, it must

be that in order to maintain freedom we must keep alive both

the spirit and the means of resistance to government

whenever “govern ment is in rebellion ag ainst th e people,” that

bein g a phrase of the time. This of course included the right to

advocate the timeliness and right of resistance.

The reform ers of that period were more or less consciou sly

aiming toward the destruction of government from over the

people in favor of govern men t fr om out of the people, or as

Lincoln put it, “government of, for and by the people.” Those

who saw th is clearest were working towards the

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1549

744. THEODORE SCHROEDER, FREE SPEECH FOR RADICALS 103-06 (1916). British

aristocrat Joh n Cartwright was an ear ly supp orter of the Amer ican Revolution, and

an advocate of radical reform in Great Britain, including a P arliament elected by

universal suffrage. He also s er ved for seven te en yea rs as a M ajor of th e

Nottinghamshire Militia. See John Cartwright, in ENCYCLOPEDIA BRITT ANIC A (CD- ROM

ed. 1997). Thomas Jeffer son wrote to Car tw right t o prais e “your valua ble volum e on

the English Constit ution” which “deduced the Constit ut ion of th e English na tion from

its righ tful r oot, th e Anglo Saxon.” Thomas J efferson, Letter to Major John

Cartwright (Ju ne 5, 1824), available online

<htt p://www.founding.com/library/cl01/cl014/cl0144/jeff1824.htm>.

The Swiss Jean Louis de Lolme, while living in England, authored The

Constitu tion of England in 1775. Disraeli later described de Lolme as “England’s

Montesqu ieu.” MALCOLM, supra note 1, at 166. De Lolm e pr ais ed t he right of

Englishmen to be “provided with arms for their own defence.” J. L. DE LOLME, THE

CONSTITUTION OF ENGLAND 307 (London 1821) (1775). He noted that violent resis ta nce

to tyran ny “gave birth t o the Great Charter,” and placed the current English dynasty

on the t hrone. Id. at 308 . Wh ile “resis ta nce is . . . t he ultima te an d la wfu l resource

against the violences of power,” id. at 306, an armed citizenry would rarely need to

resist, according to DeLolme, for “[t]he power of the people is not when they str ike,

but when t hey keep in awe: it is when they can overthr ow every t hing, that they

never need to move.” Id. at 314. De Lolme is cited in , inter alia, Near v. M innesota,

283 U.S. 697, 713 n.4 (1931) and 2 STORY, supra note 106, § 547 n.1.

745. See SCHROEDER, supra note 744, at 105.

746. Id.

de m ocra tizat ion of the army by abolishing standing arm ies

and repla cing them by a n arm ed pop ulace defending

them selves, not being defended and repressed by th ose in

whose name th e defence is made.

Upon these precedents, others like them, and upon general

principles reformers like DeLolme and J ohn Cartwright made

it plain that the right to resist government was one protected

by t he E nglish Con st itu tion .

744

Thus, Schroeder explicated that the Second Amendment

right to arms and t he First Amendm en t freedom of speech are

firmly rooted in the history of America and England. The

governments which now rule in America and England were put

in place by people who advocated, and then carried out, the

overthrow of a tyrannical government. In order to provide long-

term security against the recurrence of tyranny, the British and

Amer ican Bills of Rights both pr ovide for the fr eedom of speech

to call for the removal of a tyranny, and the right to arms to

carry out that removal.

745

Removing tyranny is not, observed

Schroeder, any kind of illegitimate rebellion. Ra ther , tyrannical

“government is in rebellion against the people.”

746

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1550 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

747. See Rabban, supra note 740, at 54.

748. S ee, e.g., THE FEDERALIST NO. 45 (J am es M adison ); THE FEDERALIST N O. 85

(Alexander Hamilton). As Alexander White wrote in reply to the widely-circulated

demand for a Bill or Righ ts, as proposed by th e min ority from the Pen nsylva nia

ratifying convent ion:

There are other t hings so clearly out of the power of Congress, that the

bare recital of them is sufficient, I mean th e “right s of conscience, or

religious liber ty —th e r igh ts of bearing arms for defence, or for killing

game—the liberty of fowling, hu nting and fishing—the righ t of altering the

laws of des cen ts an d dist ribu tion of t he effect s of de ceased persons and

titles of lands and goods, and the regulation of contracts in th e individual

Sta tes.” These things seems to ha ve been inserted among their [the dissent

at the Pen nsylvania ratifying conven tion] objections, merely to induce the

ignorant to believe that Congress would have a power over such objects and

to infer from th eir being re fus ed a p lace in th e Cons titu tion, the ir [th e

federalists’] intention to exercise that power to the oppression of the people.

By the 1930s, wh en the m ajority of the Supreme Court was

ready to begin defending the First Amendment, Schroeder had

retired from the fray, and the Free Speech League had been

eclipsed by the more cautious American Civil Liberties

Union.

747

Would some of the Court’s worst pro-repression

decisions perhaps have been decided differently, or on narrower

grounds, if the Court had con sidered the lessons that the

Second Amendment teaches about the First Amendment? At

the least, some scholars and some portions of the general public

might have better and more quickly understood the broad

protection that the First Amendment offers to subversive

speech—if free speech advocates had con tinued Th eodore

Schroeder’s use of the Second Am en dm ent to tea ch abou t the

First.

7. The illegality of most federal gun laws

The Bill of Rights, including the Second Amendment, was

never intended by its Framers to be the primary safeguard of

liberty. In the view of the Framer s, the m ain pr otection of

liberty was the structure of the Const itution itself. The

separation of powers would prevent the rule by fiat which

burdened most of Europe. And the legislative branch was

granted only the power to legislate on specific, enumerated

subjects (e.g., pa ten ts, bankr upt cies, interst ate commer ce).

Thus, Congress would have n o power to censor speech, to

suppress assemblies, to outlaw guns, or otherwise in fringe

rights.

748

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1551

But if th ey h ad been a dm itt ed a s rese rvat ions out of the powers granted to

Congress, it would have opened a lar ge field indeed for legal const ruction:

I know not an object of legislation which by a pa rity of reason, might not

be fairly determined within the jurisdiction of Congress.

Alexander Whit e, To the Citizens of Virginia, VA. GAZETTE, Feb. 22, 1788, repr in ted

in ORIGIN, supra note 37, at 281. As a member of the Virginia legislat ure, White

“usually voted with Madison and was on e of his ablest lieut ena nts,” taking a

particular interest in issu es of religious liber ty. F reeman H . Hart, Alexander White,

in DICT. AM. BIO., supra note 90. As Virginia prepared to debate t he proposed

Constitution, White became th e “dominan t leader” of federalists in Northwestern

Virginia, and was elected as a delegate t o the state conven tion. Id. Afterwar ds, he

was elected to th e United States House of Representatives as a member of the first

two Congresses. “He wa s regarded by his contem poraries a s th e outstandin g leader

of we st er n Vi rgi n ia a nd o n e o f t h e a bl es t la wy er s in th e U nit ed Sta t es .” Id.

749. See supra text accompanying notes 62-63, 96, 426-28.

750. See generally David B. Kopel & Glenn H. Reynolds, Taking Federalism

Seriously: Lopez and t he Part ial-Birth Abor tion Ban, 30 CONN. L. REV. 59 (1997). Of

course, many of the federal laws m ight properly be enacted as a mat ter of stat e law,

and most are.

Libera ls and conservatives in Washington who insist on using the interstate

comm er ce power t o enact legis lat ion a bout loca l mat ters (e.g., gun possess ion, use of

controversial medicines) should realize what a dangerous game they are playing. The

thirteen colonies consent ed to the power of Parliament to regulate external commer ce,

but went to war against Parliament’s attempt to control intern al comm erce. See

KENT, supra note 464 , at *2 08 n .(a ).

751. See Posting of Signs and Wr itten Notification t o Pur chasers of Handguns,

62 Fed. Reg. 45364-65 (proposed 1997) (to be codified at 27 C.F.R. pt. 178) (requiring

gun stores to post a sign, or give customers a brochure statin g, inter alia, that

“Handguns are a leading contributor to juvenile violence and fatalities” and that

“Safely stori ng an d lock ing han dgu ns away from childr en can he lp ensu re comp lia nce

with Federal law”—even th ough ther e is no feder al law requ iring gun owners to lock

In the nineteenth century, St. George Tucker, William

Rawle, and Timothy Farrar made precisely this poin t: the

Second Amendment (like the First Amendment ) was in a sense

superfluous, because Congress had no power t o ban guns in the

first place.

749

But in the late twentieth century, the structural

safeguards of the body of the Constitution have been eliminated

by judicial acquies cen ce t o legislative and execu tive abu se of

power. The federal power to regulate interstate commerce

(buying and selling things across state lines) and the power to

tax have been twisted into a general police power to legislate on

almost any subject—including the power to ban the simple

possession of firea rms by va rious classes of person s.

750

Thus, the exercise of power which can be found nowhere in

the text of the Constitution has become commonplace: the

President announces that gun store owners must post or

distribute antigun statements in their stores.

751

Executive

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1552 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

handguns, or to take affirmative steps to prevent children from obtaining handguns).

752. S ee, e.g., Robert W. Ha usm an , BATF Says Wallet Holster Sale Alone May

be an NFA Violation, GUN WEEK, Mar. 1, 1998, at 3; Letter from Edward M. Owen,

Jr., Chief, Firearms Technology Branch, BA TF, to Bob Gortz, Bob Gort z Gu n S ales

(Sept. 30, 1996) (on file with a uthor) (following BATF’s determ ination th at wallet

holsters are covered by the “any other weapon” language of the NFA, BATF decided

that wallet s design ed t o car ry a con cea led ha nd gun a re now strictly controlled by the

National Firearms Act); see also Letters to the E ditor, MACHINE GUN NEWS, Ju ly 1996,

at 60 (stating that a licensed firearms dealer reported that BATF confiscated a

handgun conta in ed in a w allet holst er ).

753. See Center to Prevent Hangun Violence et al., Petition to the Federal Trade

Commission (Feb. 14, 1996) (visited Mar. 16, 1998) <ht tp://www.handgun control.org/

c-main.htm> (arguing that advertising that promotes a gun’s utility for home defense

is in he re nt ly “de ceptive”).

754. S ee, e.g., Pr int z v. U nit ed Sta tes, 52 1 U.S. 98 (1997); Un ite d St at es v. Lopez,

514 U.S. 549 (1 995 ).

branch officials in the Burea u of Alcohol, Toba cco and Firearms

(BATF ) from time to time announce that an additional type of

weapon has been subjected to near-prohibitory federal controls,

thanks to BATF’s reinterpret ation of a statute or regulation.

752

The Federal Trade Commission, meanwhile, is seriously

contemplating a request that it issue an order prohibiting gun

manufacturers from mentioning self-defense in their

advertising.

753

All this is normal constitutional law in the late twentieth

century, but the nineteenth century commentators bring us

back to first principles and remind us that all this federal “law-

making” about guns is not really law-making at all. It may have

the appearance of law (written down in statute books or other

official records), and t her e m ay be the for ce of compu lsion

behind the “laws,” but the Framers and the nineteenth century

had a word for the exercise of power which was never granted.

That word was not “law.” The word was “usurpation.”

Toward the end of the twentieth century, the Supreme

Court has begun to take some tentative steps towards restoring

the structural safeguards of th e main body of the

Constitution.

754

The steps are hesitant, and there is great fear

of upsetting precedent. But precedent which authorizes the

violation of the text of the Constitution deserves no respect.

Beginning in the 1930s, and with increasing confidence in

subsequent decades, the Supreme Court began to abandon

precedent from the 1900s, 1910s, and 1920s which had

constricted the First Amendment. The Court moved forward by

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1359] SECOND AMENDMENT IN THE 19TH CENTURY1553

returning to the original First Amendment analysis, a s

articulated by, among others, St. George Tucker. Perhaps in the

twenty-first century, the Court will continue to restore the

structure of the Constitution, so that the invocation of the First,

Second, or other Amendments will become less necessary, as

the federal sph er e of a ction shrinks to constitutional

boundaries.

VIII. CONCLUSION

The historical record shows that, while the boundaries of

the Second Amendment were the subject of vigorous discussion

during the nineteenth century, the core mea ning of the

Amendment was well-settled: the Standard Model of the late

twentieth century sch olars was t he Standa rd Model of the

nineteenth century. For all practical purposes, it was the only

model. Every known scholarly commentator who said anything

about the Second Amendment, all six Supreme Court cases, and

every judge except for one in Arkansas treated the Second

Amendment as an individual right. These Standard Model

sources—like their twentiet h cen tury successors—disagreed

about important features of the Second Amendment, including

its application to the states and the types of arms whose

possession is protected. Some analysts treated the Amendment

in desultory fashion, while others celebrated it. Some cases and

commentators saw the right as intended solely to allow

resistance to oppressive government, while others saw the right

as also encompassing defense against individual criminals, and

not just criminal governments. But ther e is agreement on one

fundament al: the Secon d Am endm en t recogn izes a righ t of

individual Americans to own guns and edged weapons suitable

for resisting tyra nny, and protects that right from infringement

by the federal governmen t. However confusing the Second

Amendment may have become to Americans in the twentieth

century, the core of the Amendment’s meaning was readily

apparent in the nineteenth centur y.

In the late twentieth century, scholars are perfectly free to

argue against the Standard Model of the Second Amendment on

the basis of changed circumstances. For example, Donald

Beschle reasons that the Second Amendment should be

reconstrued into a right of personal security, and that right can

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1554 BRIGHAM YOUNG UNIVERSITY LAW REVIEW [1998

755. See Donald Besch le, Recons iderin g th e S econd Amendment Constitutional

Protection for a Right of Security, 9 HAMLINE L. REV . 69 (1986 ).

756. Madison, J effers on, Ada ms, and ma ny oth er Founders would appear to have

been complicit in t he fra ud, sin ce they were alive and active in public affairs when

Tucker and Rawle publish ed th eir well-kn own books. Th is frau d th eory is no less

preposterous than Garry Wills’ the ory th at th e Se cond Amendme nt is a hoa x

perpetrated by J ames Ma dison. See generally Wills, supra note 5.

be protected by banning all guns.

755

Several schools of

constitutional interpretation suggest that the established

interpretive history of constitutional provisions may be ignored

if the history impedes the achievement of desirable

governmental policies. Perhaps one could argue that the

nineteenth century wa s t he victim of a massive fraud

(apparently perpetrated by St. George Tucker and William

Rawle) wh ich fooled everyone fr om Justice Story onward about

the meaning of the Second Amendment.

756

Even within the

limits of a nineteenth century interpretive paradigm, there is

much useful precedent for advocates of restrictions on various

types of concealable wea pon s, and for pr ohibitions on the

carrying of concealed weapon s.

But it can no longer be argued—at lea st not by a nyone

constrained by respect for the truth—that the Second

Amendment has never been considered an individual right. The

anti-individual view of the Second Amendment was, at most, a

very lonely voice against an overwhelming nineteenth century

individual rights consensus. In light of the nineteenth century

record, no twentieth or twenty-first century scholars should

claim that the St anda rd Model individual rights view is a fraud

or a myth.