Scholarly commentary Second Amendment to the United States Constitution

1 scholarly commentary

1.1 commentary

1.1.1 richard henry lee
1.1.2 george mason
1.1.3 tench coxe
1.1.4 tucker/blackstone
1.1.5 william rawle
1.1.6 joseph story
1.1.7 lysander spooner
1.1.8 timothy farrar
1.1.9 judge thomas cooley


1.2 late 20th century commentary
1.3 meaning of regulated militia
1.4 meaning of right of people
1.5 meaning of keep , bear arms

scholarly commentary
early commentary
















richard henry lee

in may of 1788, richard henry lee wrote (wikiquote link) in additional letters federal farmer #169 or letter xviii regarding definition of militia.

george mason

in june of 1788, george mason addressed (wikiquote link) virginia ratifying convention regarding militia.

tench coxe

in 1792, tench coxe made following point in commentary on second amendment:

as civil rulers, not having duty people duly before them, may attempt tyrannize, , military forces must raised defend our country, might pervert power injury of fellow citizens, people confirmed next article in right keep , bear private arms.

tucker/blackstone

the earliest published commentary on second amendment major constitutional theorist st. george tucker. annotated five-volume edition of sir william blackstone s commentaries on laws of england, critical legal reference american attorneys published in 1803. tucker wrote:

a regulated militia being necessary security of free state, right of people keep, , bear arms, shall not infringed. amendments c. u. s. art. 4. may considered true palladium of liberty ... right of self defence first law of nature: in governments has been study of rulers confine right within narrowest limits possible. wherever standing armies kept up, , right of people keep , bear arms is, under colour or pretext whatsoever, prohibited, liberty, if not annihilated, on brink of destruction. in england, people have been disarmed, generally, under specious pretext of preserving game : never failing lure bring on landed aristocracy support measure, under mask, though calculated different purposes. true is, bill of rights seems @ first view counteract policy: right of bearing arms confined protestants, , words suitable condition , degree, have been interpreted authorise prohibition of keeping gun or other engine destruction of game, farmer, or inferior tradesman, or other person not qualified kill game. not 1 man in 5 hundred can keep gun in house without being subject penalty.

in footnotes 40 , 41 of commentaries, tucker stated right bear arms under second amendment not subject restrictions part of english law: right of people keep , bear arms shall not infringed. amendments c. u. s. art. 4, , without qualification condition or degree, case in british government , whoever examines forest, , game laws in british code, readily perceive right of keeping arms effectually taken away people of england. blackstone himself commented on english game laws, vol. ii, p. 412, prevention of popular insurrections , resistance government disarming bulk of people, reason oftener meant avowed makers of forest , game laws. blackstone discussed right of self-defense in separate section of treatise on common law of crimes. tucker s annotations latter section did not mention second amendment cited standard works of english jurists such hawkins.

further, tucker criticized english bill of rights limiting gun ownership wealthy, leaving populace disarmed, , expressed hope americans never cease regard right of keeping , bearing arms surest pledge of liberty.

william rawle

tucker s commentary followed, in 1825, of william rawle in landmark text, view of constitution of united states of america. tucker, rawle condemned england s arbitrary code preservation of game, portraying country 1 boasts of freedom, yet provides right protestant subjects cautiously describ[es] of bearing arms defence , reserves [a] small proportion of people[.] in contrast, rawle characterizes second clause of second amendment, calls corollary clause, general prohibition against such capricious abuse of government power, declaring bluntly:

no clause rule of construction conceived give congress power disarm people. such flagitious attempt made under general pretence state legislature. if in blind pursuit of inordinate power, either should attempt it, amendment may appealed restraint on both.

speaking of second amendment generally, rawle said:

the prohibition general. no clause in constitution rule of construction conceived give congress power disarm people. such flagitious attempt made under general pretence state legislature. if in blind pursuit of inordinate power, either should attempt it, amendment may appealed restraint on both.

rawle, long before concept of incorporation formally recognized courts, or congress drafted fourteenth amendment, contended citizens appeal second amendment should either state or federal government attempt disarm them. did warn, however, right [to bear arms] ought not...be abused disturbance of public peace and, paraphrasing coke, observed: assemblage of persons arms, unlawful purpose, indictable offence, , carrying of arms abroad single individual, attended circumstances giving reason fear purposes make unlawful use of them, sufficient cause require him give surety of peace.

joseph story

joseph story articulated in influential commentaries on constitution orthodox view of second amendment, viewed amendment s clear meaning:

the right of citizens keep , bear arms has justly been considered, palladium of liberties of republic; since offers strong moral check against usurpations , arbitrary power of rulers; , generally, if these successful in first instance, enable people resist , triumph on them. , yet, though truth seem clear, , importance of well-regulated militia seem undeniable, cannot disguised, among american people there growing indifference system of militia discipline, , strong disposition, sense of burdens, rid of regulations. how practicable keep people duly armed without organization, difficult see. there no small danger, indifference may lead disgust, , disgust contempt; , gradually undermine protection intended clause of our national bill of rights.

story describes militia natural defence of free country, both against foreign foes, domestic revolts , usurpation rulers. book regards militia moral check against both usurpation , arbitrary use of power, while expressing distress @ growing indifference of american people maintaining such organized militia, lead undermining of protection of second amendment.

lysander spooner

abolitionist lysander spooner, commenting on bills of rights, stated object of bills of rights assert rights of individuals against government , second amendment right keep , bear arms in support of right resist government oppression, security against tyranny of government lies in forcible resistance injustice, injustice executed, unless forcibly resisted. spooner s theory provided intellectual foundation john brown , other radical abolitionists believed arming slaves not morally justified, entirely consistent second amendment. express connection between right , second amendment drawn lysander spooner commented right of resistance protected both right trial jury , second amendment.

the congressional debate on proposed fourteenth amendment concentrated on southern states doing harm newly freed slaves, including disarming former slaves.

timothy farrar

in 1867, judge timothy farrar published manual of constitution of united states of america, written when fourteenth amendment in process of adoption state legislatures. :

the states recognized governments, and, when own constitutions permit, may please; provided not interfere constitution , laws of united states, or civil or natural rights of people recognized thereby, , held in conformity them. right of every person life, liberty, , property, keep , bear arms, writ of habeas corpus trial jury, , divers others, recognized by, , held under, constitution of united states, , cannot infringed individuals or government itself.

judge thomas cooley

judge thomas cooley, perhaps read constitutional scholar of nineteenth century, wrote extensively amendment, , explained in 1880 how second amendment protected right of people :

it might supposed phraseology of provision right keep , bear arms guaranteed militia; interpretation not warranted intent. militia, has been elsewhere explained, consists of persons who, under law, liable performance of military duty, , officered , enrolled service when called upon. law may make provision enrolment of fit perform military duty, or of small number only, or may wholly omit make provision @ all; , if right limited enrolled, purpose of guaranty might defeated altogether action or neglect act of government meant hold in check. meaning of provision undoubtedly is, people, whom militia must taken, shall have right keep , bear arms; , need no permission or regulation of law purpose.

late 20th century commentary

assortment of 20th century handguns

in latter half of 20th century, there considerable debate on whether second amendment protected individual right or collective right. debate centered on whether prefatory clause ( regulated militia being necessary security of free state ) declared amendment’s purpose or merely announced purpose introduce operative clause ( right of people keep , bear arms shall not infringed ). scholars advanced 3 competing theoretical models how prefatory clause should interpreted.

the first, known states rights or collective right model, held second amendment not apply individuals; rather, recognizes right of each state arm militia. under approach, citizens have no right keep or bear arms, states have collective right have national guard . advocates of collective rights models argued second amendment written prevent federal government disarming state militias, rather secure individual right possess firearms. prior 2001, every circuit court decision interpreted second amendment endorsed collective right model. however, beginning fifth circuit s opinion united states v. emerson in 2001, circuit courts recognized second amendment protects individual right bear arms.

the second, known sophisticated collective right model , held second amendment recognizes limited individual right. however, individual right exercised actively participating members of functioning, organized state militia. scholars have argued sophisticated collective rights model is, in fact, functional equivalent of collective rights model. other commentators have observed prior emerson, 5 circuit courts endorsed sophisticated collective right model .

the third, known standard model , held second amendment recognized personal right of individuals keep , bear arms. supporters of model argued although first clause may describe general purpose amendment, second clause controlling , therefore amendment confers individual right of people keep , bear arms . additionally, scholars favored model argued absence of founding-era militias mentioned in amendment s preamble not render dead letter because preamble philosophical declaration safeguarding militias , 1 of multiple civic purposes amendment enacted .

under both of collective right models, opening phrase considered essential pre-condition main clause. these interpretations held grammar structure common during era , grammar dictated second amendment protected collective right firearms extent necessary militia duty. however, under standard model, opening phrase believed prefatory or amplifying operative clause. opening phrase meant non-exclusive example – 1 of many reasons amendment. interpretation consistent position second amendment protects modified individual right.

the question of collective right versus individual right progressively resolved in favor of individual rights model, beginning fifth circuit ruling in united states v. emerson (2001), along supreme court s rulings in district of columbia v. heller (2008), , mcdonald v. chicago (2010). in heller, supreme court resolved remaining circuit splits ruling second amendment protects individual right. although second amendment constitutional amendment prefatory clause, such linguistic constructions used elsewhere in late eighteenth century.

meaning of regulated militia

the term regulated means disciplined or trained . in heller, u.s. supreme court stated [t]he adjective well-regulated implies nothing more imposition of proper discipline , training.

in year prior drafting of second amendment, in federalist no. 29 alexander hamilton wrote following organizing , disciplining , arming , , training of militia specified in enumerated powers:

if regulated militia natural defence of free country, ought under regulation , @ disposal of body constituted guardian of national security ... confiding regulation of militia direction of national authority ... [but] reserving states ... authority of training militia ... tolerable expertness in military movements business requires time , practice. not day, or week, suffice attainment of it. oblige great body of yeomanry, , of other classes of citizens, under arms purpose of going through military exercises , evolutions, might necessary acquire degree of perfection entitle them character of well-regulated militia, real grievance people, , serious public inconvenience , loss ... little more can reasonably aimed at, respect people @ large, have them armed , equipped; , in order see not neglected, necessary assemble them once or twice in course of year.

justice scalia, writing court in heller: in nunn v. state, 1 ga. 243, 251 (1846), georgia supreme court construed second amendment protecting natural right of self-defence , therefore struck down ban on carrying pistols openly. opinion captured way in operative clause of second amendment furthers purpose announced in prefatory clause, in continuity english right :

nor right involved in discussion less comprehensive or valuable: right of people bear arms shall not infringed. right of whole people, old , young, men, women , boys, , not militia only, keep , bear arms of every description, not such merely used militia, shall not infringed, curtailed, or broken in upon, in smallest degree; , important end attained: rearing , qualifying well-regulated militia, vitally necessary security of free state. our opinion is, law, state or federal, repugnant constitution, , void, contravenes right, belonging our forefathers, trampled under foot charles i. , 2 wicked sons , successors, reestablished revolution of 1688, conveyed land of liberty colonists, , incorporated conspicuously in our own magna charta! , lexington, concord, camden, river raisin, sandusky, , laurel-crowned field of new orleans, plead eloquently interpretation! , acquisition of texas may considered full fruits of great constitutional right.

justice stevens in dissent:

when each word in text given full effect, amendment naturally read secure people right use , possess arms in conjunction service in well-regulated militia. far appears, no more contemplated drafters or encompassed within terms. if meaning of text genuinely susceptible more 1 interpretation, burden remain on advocating departure purpose identified in preamble , settled law come forward persuasive new arguments or evidence. textual analysis offered respondent , embraced court falls far short of sustaining heavy burden. , court’s emphatic reliance on claim second amendment ... codified pre-existing right, ante, @ 19 [refers p. 19 of opinion], of course beside point because right keep , bear arms service in state militia pre-existing right.

meaning of right of people

justice antonin scalia, writing majority in heller, stated:

nowhere else in constitution right attributed people refer other individual right. more, in 6 other provisions of constitution mention people, term unambiguously refers members of political community, not unspecified subset. contrasts markedly phrase militia in prefatory clause. describe below, militia in colonial america consisted of subset of people – male, able bodied, , within age range. reading second amendment protecting right keep , bear arms in organized militia therefore fits poorly operative clause’s description of holder of right people .

an earlier case, united states v. verdugo-urquidez (1990), dealt nonresident aliens , fourth amendment, led discussion of people when referred elsewhere in constitution:

the second amendment protects right of people keep , bear arms, , ninth , tenth amendments provide rights , powers retained , reserved people ... while textual exegesis no means conclusive, suggests people protected fourth amendment, , first , second amendments, , whom rights , powers reserved in ninth , tenth amendments, refers class of persons part of national community or have otherwise developed sufficient connection country considered part of community.

there several different reasons amendment, , protecting militias 1 of them; if protecting militias had been reason amendment have instead referred right of militia keep , bear arms instead of right of people keep , bear arms .

meaning of keep , bear arms

in heller majority rejected view term bear arms implies military use of arms:

before addressing verbs keep , bear, interpret object: arms. term applied, now, weapons not designed military use , not employed in military capacity. thus, natural reading of keep arms in second amendment have weapons. @ time of founding, now, bear meant carry. in numerous instances, bear arms unambiguously used refer carrying of weapons outside of organized militia. 9 state constitutional provisions written in 18th century or first 2 decades of 19th, enshrined right of citizens bear arms in defense of , state again, in analogous linguistic context – bear arms not limited carrying of arms in militia. phrase bear arms had @ time of founding idiomatic meaning different natural meaning: serve soldier, military service, fight or wage war. unequivocally bore idiomatic meaning when followed preposition against, . every example given petitioners’ amici idiomatic meaning of bear arms founding period either includes preposition against or not idiomatic. in event, meaning of bear arms petitioners , justice stevens propose not (sometimes) idiomatic meaning. rather, manufacture hybrid definition, whereby bear arms connotes actual carrying of arms (and therefore not idiom) in service of organized militia. no dictionary has ever adopted definition, , have been apprised of no source indicates carried meaning @ time of founding. worse still, phrase keep , bear arms incoherent. word arms have 2 different meanings @ once: weapons (as object of keep ) , (as object of bear ) one-half of idiom. rather saying filled , kicked bucket mean filled bucket , died.

in dissent, joined justices souter, ginsburg, , breyer, justice stevens said:

the amendment s text justify different limitation: right keep , bear arms protects right possess , use firearms in connection service in state-organized militia. had framers wished expand meaning of phrase bear arms encompass civilian possession , use, have done addition of phrases such defense of .