Early commentary Second Amendment to the United States Constitution

1 commentary

1.1 richard henry lee
1.2 george mason
1.3 tench coxe
1.4 tucker/blackstone
1.5 william rawle
1.6 joseph story
1.7 lysander spooner
1.8 timothy farrar
1.9 judge thomas cooley

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.