From: [j b s] at [ee.egr.duke.edu] (Joe B. Simpson)
Newsgroups: misc.legal,talk.politics.guns
Subject: Re: 2nd Amendment NOT an individual right
Date: 21 Jun 93 03:47:07 GMT
97th Congress
2d Session COMMITTEE PRINT
T H E R I G H T T O K E E P A N D B E A R A R M S
________
REPORT
of the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-SEVENTH CONGRESS
SECOND SESSION
<Emblem: Eagle with shield clenching shock & arrows>
FEBRUARY, 1982
Printed for the use of the Committee on the Judiciary
____
U.S. GOVERNMENT PRINTING OFFICE
88-618 O
WASHINGTON : 1982
For sale by the Superintendent of Documents,
U. S. Government Printing Office
Washington, D.C. 20402
COMMITTEE ON THE JUDICIARY
STROM THURMOND, South Carolina, Chairman
CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona
JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania
Vinton DeVane Lide, Chief Counsel
Quentin Crommelin, Jr., Staff Director
SUBCOMMITTEE ON THE CONSTITUTION
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina DENNIS DeCONCINI, Arizona
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
Stephen J. Markman, Chief Counsel and Staff Director
Randall Rader, General Counsel
Peter E. Ornsby, Counsel
Robert Feidler, Minority Counsel
C O N T E N T S
_________
Preface, by Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary
Committee, Subcomittee on the Constitution, from the State of Utah
Preface by Senator Dennis DeConcini, ranking minority member, U.S.
Senate Judiciary Committee, Subcommittee on the Constitution, from
the State of Arizona
History: Second amendment right to "keep and bear arms"
Appendix: Case law
Enforcement of Federal firearms laws from the perspective of the
second amendment
Other views of the second amendment:
Does the Second Amendment mean what it says?, by David J. Steinberg,
executive director, National Council for a Responsible Firearms
policy.
National Coalition to ban handguns, statement on the Second Amend-
ment, by Michael K. Beard, executive director, and Samuel S. Fields,
legal affairs coordinator, National Coalition to Ban Handguns.
Historical Bases of the Right to Keep and Bear Arms, by David T. Hardy,
partner in the Law Firm Sando & Hardy.
The Fourteenth Amendment and the Right to Keep and Bear Arms: The
Intent of the Framers, by Stephen P. Halbrook, PH. D., attorney and
counselor at law.
The Second Amendment to the United States Constitution Guarantees an
Individual Right To Keep and Bear Arms, by James J. Featherstone,
Esq., General Counsel, Richard E. Gardiner, Esq., and Robert Dowlut,
Esq., Office of the General Counsel, National Rifle Association of
America.
The Right to Bear Arms: The Development of the Americal Experience,
by John Levin, assistant professor, Chicago-Kent College of Law,
Illinois Institute of Technology.
Standing Armies and Armed Citizens: An Historical Analysis of The
Second Amendment, by Roy G. Weatherup, J.D., 1972 Standford Univer-
sity; member of the California Bar.
Gun control legislation, by the Committee on Federal Legislation, the
Association of the Bar of the City of New York.
[[Note: Forget it - if you wanna see all these "other views", go buy
the book! I'm tired of typing! --RDH]]
P R E F A C E
________
"To preserve liberty, it is essential that the whole body of
the people always possess arms, and be taught alike, espe-
cially when young, how to use them." (Richard Henry Lee,
Virginia delegate to the Continental Congress, initiator of
the Declaration of Independence, and member of the first
Senate, which passed the Bill of Rights.)
"The great object is that every man be armed . . . Every-
one who is able may have a gun." (Patrick Henry, in the
Virginia Convention on the ratification of the Constitu-
tion.)
"The advantage of being armed . . . the Americans pos-
sess over the people of all other nations . . . Notwithstand-
ing the military establishments in the several Kingdoms of
Europe, which are carried as far as the public resources
will bear, the governments are afraid to trust the people
with arms." (James Madison, author of the Bill of Rights,
in his Federalist Paper No. 26.)
"A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear
Arms, shall not be infringed." (Second Amendment to the
Constitution.)
In my studies as an attorney and as a United States Senator, I
have constantly been amazed by the indifference or even hostility
shown the Second Amendment by courts, legislatures, and com-
mentators. James Madison would be startled to hear that his recog-
nition of a right to keep and bear arms, which passed the House by
a voice vote without objection and hardly a debate, has since been
construed in but a single, and most ambiguous, Supreme Court
decision, whereas his proposals for freedom of religion, which he
made reluctantly out of fear that they would be rejected or nar-
rowed beyond use, and those for freeedom of assembly, which passed
only after a lengthy and bitter debate, are the subject of scores of
detailed and favorable decisions. Thomas Jefferson, who kept a
veritable armory of pistols, rifles and shotguns at Monticello, and
advised his nephew to forsake other sports in favor of hunting,
would be astounded to hear supposed civil libertarians claim fire-
arm ownership should be restricted. Samuel Adams, a handgun
owner who pressed for an amendment stating that the "Constitu-
tion shall never be construed . . . to prevent the people of the
United States who are peaceable citizens from keeping their own
arms," would be shocked to hear that his native state today im-
poses a year's sentence, without probation or parole, for carrying a
firearm without a police permit.
This is not to imply that courts have totally ignored the impact
of the Second Amendment in the Bill of Rights. No fewer than
twenty-one decisions by the courts of our states have recognized an
individual right to keep and bear arms, and a majority of these
have not only recognized the right but invalidated laws or regula-
tions which abridged it. Yet in all too many instances, courts or
commentators have sought, for reasons only tangentially related to
constitutional history, to contrue this right out of existence. They
argue that the Second Amendment's words "right of the people"
mean "a right of the state"--apparently overlooking the impact of
those same words when used in the First and Fourth Amendments.
The "right of the people" to assemble or to be free from unreason-
able searches and seizures is not contested as an individual guaran-
tee. Still they ignore consistency and claim that the right to "bear
arms" relates only to military uses. This not only violates a consist-
ent constitutional reading of "right of the people" but also ignores
that the second amendment protects a right to "keep" arms. These
commentators contend instead that the amendment's preamble re-
garding the necessity of a "well regulated militia . . . to a free
state" means that the right to keep and bear arms applies only to a
National Guard. Such a reading falis to note that the Framers used
the term "militia" to relate to every citizen capable of bearing
arms, and that Congress has established the present National
Guard under its power to raise armies, expressly stating that it
was not doing so unders its pwer to organize and arm the militia.
When the first Congress convened for the purpose of drafting a
Bill of Rights, it delegated the task to James Madison. Madison did
not write upon a blank tablet. Instead, he obtained a pamphlet
listing the State proposals for a bill of rights and sought to produce
a briefer version incorporating all the vital proposals of these. His
purpose was to incorporate, not distinguish by technical changes,
proposals such as that of the Pennsylvania minority, Sam Adams,
or the New Hampshire delegates. Madison proposed among other
rights that "That right of the people to keep and bear arms shall
not be infringed; a well armed and well regulated militia being the
best security of a free country; but no person religiously scrupulous
of bearing arms shall be compelled to render military service in
person." In the House, this was intially modified so that the
militia clause came before the proposal recognizing the right. The
proposals for the Bill of Rights were then trimmed in the interests
of brevity. The conscientious objector clause was removed following
objections by Elbridge Gerry, who complained that future Congress-
es might abuse the exemption to excuse everyone from military
service.
The proposal finally passed the House in its present form: "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.:" In this form it was submitted into the Senate, which
passed it the following day. The Senate in the process indicated tis
intent that the right be an individual one, for private purposes, by
rejecting an amendment which would have limited the keeping and
bearing of arms to bearing "For the common defense".
The earliest American constitutional commentators concurred in
giving this broad reading to the amendment. When St. George
Tucker, later Chief Justice of the Virginia Supreme Court, in 1803
published an edition of Blackstone annotated to American law, he
followed Blackstone's citation of the right of the subject "of having
arms suitable to their condition and degree, and such as are al-
lowed by law" with a citation to the Second Amendment, "And this
without any qualification as to their condition or degree, as is the
case in the British government." William Rawle's "View of the
Constitution" published in Philadelphia in 1825 noted that under
the Second Amendment: "The prohibition is general. No clause in
the Constitution could by a rule of construction be conceived to
give to Congress a power to disarm the people. Such a flagitious
attempt could only be made under some general pretense by a
state legislature. But if in blind pursuit of inordinate power, either
should attempt it, this amendment may be appealed to as a re-
straint on both." The Jefferson papers in the Library of Congress
show that both Tucker and Rawle were friends of, and corre-
sponded with, Thomas Jefferson. Their views are those of contem-
poraries of Jefferson, Madison and others, and are entitled to spe-
cial weight. A few years later, Joseph Story in his "Commentaries
on the Constitution" considered the right to keep and bear arms as
"the palladium of the liberties of the republic", which deterred
tyranny and enabled the citrizenry at large to overthrow it should
it come to pass.
Subsequent legislation in the second Congress likewise supports
the interpretation of the Second Amendment that creates an indi-
vidual right. In the Militia Act of 1792, the second Congress de-
fined "militia of the United States" to include almost every free
adult male in the United States. These persons were obligated by
law to possess a firearm and a minimum supply of ammunition
and military equipment. This statute, incidentally, remained in
effect into the early yeats of the present century as a legal require-
ment of gun ownership for most of the population of the United
States. There can be little doubt from this that when the Congress
and the people spoke of a "militia", they had reference to the
traditional concept of the entire populace capable of bearing arms,
and not to any formal group such as what is today called the
National Guard. The purpose was to create an armed citizenry,
which the political theorists at the time considered essential to
ward off tyranny. From this militia, appropriate measures might
create a "well regulated militia" of individuals trained in their
duties and responsibilities as citizens and owners of firearms.
If gun laws in fact worked, the sponsors of this type of legislation
should have no difficulty drawing upon long lists of examples of
crime rates reduced by such legislation. That they cannot do so
after a century and a half of trying--that they must sweep under
the rug the southern attempts at gun control in the 1870-1910
period, the northeastern attempts in the 1920-1939 period, the
attempst at both Federal and State levels in 1965-1976--establishes
the repeated, complete and inevitiable failure of gun laws to control
serious crime.
Immediately upon assuming chairmanship of the Subcommittee
on the Constitution, I sponsored the report which follows as an
effort to study, rather than ignore, the history of the controversy
over the right to keep and bear arms. Utilizing the research capa-
bilities of the Subcommittee on the Constitution, the resources of
the Library of Congress, and the assistance of constitutional schol-
ars such as Mary Kaaren Jolly, Steven Halbrook, and David T.
Hardy, the subcommittee has managed to uncover information on
the right to keep and bear arms which documents quite clearly its
status as a major individual right of American citizens. We did not
guess at the purpose of the British 1689 Declaration of Rights; we
located the Journals of the House of Commons and private notes of
the Declaration's sponsors, now dead for two centuries. We did not
make suppositions as to colonial interpretations of that Declara-
tion's right to keep and bear arms; we examined colonial newspapers which
discussed it. We did not speculate as to the intent of the framers of
the second amendment; we examined James Madison's drafts for it,
his handwritten outlines of speeches upon the Bill of Rights, and
discussions of the second amendment by early scholars who were
personal friends of Madison, Jefferson, and Washington and wrote
while these still lived. What the Subcommittee on the Constitution
uncovered was clear--and long-lost--proof that the second amend-
ment to our Constitution was intended as an individual right of the
American citizen to keep and carry arms in a peaceful manner, for
protection of himself, his family, and his freedoms. The summary
of our research and findings forms the first portion of this report.
In the interest of fairness and the presentation of a complete
picture, we also invited groups which were likely to oppose this
recognition of freedoms to submit their views. The statements of
two associations who replied are reproduced here following the
report of the Subcommittee. The Subcommittee also invited state-
ments by Messr. Halbrook and Hardy, and by the National Rifle
Association, whose statements likewise follow our report.
[[Above-mentioned "private" views not included. -RDH]]
When I became chairman of the Subcommittee on the Constitu-
tion, I hoped that I would be able to assist in the protection of the
constitutional rights of American citizens, rights which have too
often been eroded in the belief that government could be relied
upon for quick solutions to difficult problems.
Both as an American citizen and as a United States Senator I
repudiate this view. I likewise repudiate the approach of those who
believe to solve American problems you simple become something
other than American. To my mind, the uniqueness of our free
insitutions, the fact that an American citizen can boast freedoms
unknown in any other land, is all the more reason to resist any
erosion of our individual rights. When our ancestors forged a land
"conceived in liberty", they did so with musket and rifle. When
they reacted to attempts to dissolve their free institutions, and
established their identitiy as a free nation, they did so as a nation
of armed freemen. When they sought to record forever a guarantee
of their rights, they devoted one full amendment out of ten to
nothing but the protection of their right to keep and bear arms
against government interference. Under my chairmanship the Sub-
committee on the Constitution will concern itself with a proper
recognition of, and respect for, this right most valued by free men.
Orrin G. Hatch,
Chairman,
Subcommittee on the Constitution.
January 20, 1982.
The right to bear arms is a tradition with deep roots in Ameri-
can society. Thomas Jefferson proposed that "no free man shall
ever be debarred the use of arms," and Samuel Adams called for
an amendment banning any law "to prevent the people of the
United States who are peaceable citizens from keeping their own
arms." The Constitution of the State of Arizona, for example, rec-
ognized the "right of an individual citizen to bear arms in defense
of himself or the State."
Even though the tradition has deep roots, its application to
modern America is the subject of intense controversy. Indeed, it is
a controvery into which the Congress is beginning, once again, to
immerse itself. I have personally been disappointed that so impor-
tant an issue should have generally been so thinly researched and
so minimally debated both in Congress and the courts. Our Su-
preme Court has but once touched on its meaning at the Federal
level and that decision, now nearly a half-century old, is so ambigu-
ous that any school of thought can find some support in it. All
Supreme Court decisions on the second amendment's application to
the States came in the last century, when constitutional law was
far different that it is today. As ranking minority member of the
Subcommittee on the Consititution, I, therefore, welcome the effort
which led to this report--a report based not only upon the inde-
pendent research of the subcommittee staff, but also upon full and
fair presentation of the cases by all interested groups and individ-
ual scholars.
I personally believe that it is necessary for the Congress to
amend the Gun Control Act of 1968. I welcome the oportunity to
introduce this discussion of how best these amendments might be
made.
The Constitution subcommittee staff has prepared this mono-
graph bringing together proponents of both sides of the debate over
the 1968 Act. I believe that the statements contained herein pre-
sent the arguments fairly and thoroughly. I commend Senator
Hatch, chairman of the subcommittee, for having this excellent
reference work prepared. I am sure that it will be of great assist-
ance to the Congress as it debates the second amendment and
considers legislation to ammend the Gun Control Act.
Dennis DeConcini,
Ranking Minorty Member,
Subcommittee on the Constituion.
January 20, 1982.
HISTORY: SECOND AMENDMENT RIGHT TO "KEEP AND BEAR ARMS"
The right to keep and bear arms as a part of English and
American law antedates not only the Constitution, but also the
discovery of firearms. Under the laws of Alfred the Great, whose
reign began in 872 A.D., all English citizens from the nobility to
the peasants were obliged to privately purchase weapons and be
available for military duty.[1] This was in sharp contrast to the
feudal system as it evolved in Europe, under which armament and
military duties were concentrated in the nobility. The body of
armed citizens were known as the "fyrd".
While a great many of the Saxon rights were abridged following
the Normal conquest, the right and duty of arms possession was
retained. Under the Assize of Arms of 1181, "the whole community
of freemen" between the ages of 15 and 40 were required by law to
possess certain arms, which were arranged in proportion to their
possessions.[2] They were required twice a year to demonstrate to
Royal Officials that they were appropriately armed. In 1253, an-
other Assize of Arms expanded the duty of armament to include
not only freeman, but also villeins, who were the English equiva-
lent of serfs. Now all "citizens, burgesses, free tenants, villeins and
others from 15 to 60 years of age" were obliged to be armed.[3]
While on the Continent the villeins were regarded as little more
than animals hungering for rebellion, the English legal system not
only permitted, but affirmatively required them, to be armed.
The thirteenth century saw further definitions of this right as
the long bow, a formidable armor-piercing weapon, became increas-
ingly the mainstay of British national policy. In 1285, Edward I
commanded that all persons comply with the earlier Assizes and
added that "anyone else who can afford them shall keep bows and
arrows".[4] The right of armament was subject only to narrow
limitations. In 1279, it was ordered that those appearing in Parlia-
ment or other public assemblies "shall come without all force and
armor, well and peaceably".[5] In 1328, the statute of Northampton
ordered that no one use their arms in "affray of the peace, nor to
go nor ride armed by day or by night in fairs, markets, nor in the
presence of the justices or other ministers".[6] English courts con-
strued this ban consistently with the general right of private arma-
ment as applying only to wearing of arms "accompanied with such
circumstances as are apt to terrify the people".[7] In 1369, the King
ordered that the sheriffs of London require all citizens "at leisure
time on holidays" to "use in their recreation bowes and arrows"
and to stop all other games which might distract them from this
practice.[8]
The Tudor kings experimented with limits upon specialized
weapons--mainly crossbows and the then-new firearms. These
measures were not intended to disarm the citizenry, but on the
contrary to prevent their being diverted from longbow practice by
sport with other weapons which were considered less effective.
Even these narrow measures were shortlived. In 1503, Henry VII
limited shooting (but not possession) of crossbows to those with
land worth 200 marks annual rental, but provided an exception for
those who "shote owt of a howse for the lawefull defens of the
same".[9] In 1511, Henry VIII increased the property requirement
to 300 marks. He also expanded the requirement of longbow owner-
ship, requiring all citizens to "use and exercyse shootyng in long-
bowes, and also have a bowe and arrowes contynually" in the
house.[10] Fathers were required by law to purchase bows and
arrows for their sons between the age of 7 and 14 and to train
them in longbow use.
In 1514 the ban on crossbows was extended to include fire-
arms.[11] But in 1533, Henry reduced the property qualification to
100 pounds per year; in 1541 he limited it to possession of small
firearms ("of the length of one hole yard" for some firearms and
"thre quarters of a yarde" for others)[12] and eventually he re-
pealed the entire statute by proclamation.[13] The later Tudor
monarchs continued the system and Elizabeth added to it by creat-
in what came to be known as "train bands", selected portions of
the citizenry chosen for special training. These trained bands were
distinguished from the "militia", which term was first used during
the Spanish Armada crisis to designate the entire of the armed
citizenry.[14]
The militia continued to be a pivotal force in the English politi-
cal system. The British historian Charles Oman considers the exist-
ence of the armed citizenry to be a major reason for the modera-
tion of monarchical rule in Great Britain; "More than once he
[Henry VIII] had to restrain himself, when he discovered that the
general feeling of his subjects was against him. . . . His 'gentlemen
pensioners' and his yeomen of the guard were but a handful, and
bills or bows were in every farm and cottage".[15]
When civil war broke out in 1642, the critical issue was whether
the King or Parliament had the right to control the militia.[16] The
aftermath of the civil war saw England in temporary control of a
military government, which repeatedly dissolved Parliament and
authorized its officers to "search for, and seize all arms" owned by
Catholics, opponents of the government, "or any other person
whom the commissioners had judged dangerous to the peace of this
Commonwealth".[17]
The military government ended with the restoration of Charles
II. Charles in turn opened his reign with a variety of repressive
legislation, expanding the definition of treason, establishing press
censorship and ordering his supporters to form their own troops,
"the officers to be numerous, disaffected persons watched and not
allowed to assemble, and their arms seized".[18] In 1662, a Militia
Act was enacted empowering officials "to search for and seize all
arms in the custody or possession of any person or persons whom
the said lieutenants or any two or more of their deputies shall
judge dangerous to the peace of the kingdom".[19] Gunsmiths were
ordered to deliver to the government lists of all purchasers.[20]
These confiscations were continued under James II, who directed
them particularly against the Irish population: "Although the
country was infested by predatory bands, a Protestant gentleman
could scarcely obtain permission to keep a brace of pistols."[21]
In 1668, the government of James was overturned in a peaceful
uprising which came to be known as "The Glorious Revolution".
Parliament resolved that James had abdicated and promulgated a
Declaration of Rights, later enacted as the Bill of Rights. Before
coronation, his successor William of Orange, was required to swear
to respect these rights. The debates in the House of Commons over
this Declaration of Rights focused largely upon the disarmament
under the 1662 Militia Act. One member complained that "an act
of Parliament was made to disarm all Englishmen, who the lieu-
tenant should suspect, by day or night, by force or otherwise--this
was done in Ireland for the sake of putting arms into Irish hands."
The speech of another is summarized as "militia bill--power to
disarm all England--now done in Ireland." A third complained
"Arbitrary power exercised by the ministry. . . . Militia--imprison-
ing with reason; disarming--himself disarmed." Yet another
summarized his complaints "Militia Act--an abominable thing to
disarm the nation. . . ."[22]
The Bill of Rights, as drafted in the House of Commons, simply
provided that "the acts concerning the militia are grievous to the
subject" and that "it is necessary for the public Safety that the
Subjects, which are Protestants, should provide and keep arms for
the common defense; And that the Arms which have been seized,
and taken from them, be restored."[23] The House of Lords
changed this to make it a more positive declaration of an individu-
al right under English law: "That the subjects which are Protes-
tant may have arms for their defense suitable to their conditions
and as allowed by law."[24] The only limitation was on ownership
by Catholics, who at that time composed only a few percent of the
British population and were subject to a wide variety of punitive
legislation. The Parliament subsequently made clear what it meant
by "suitable to their conditions and as allowed by law". The poorer
citizens had been restricted from owning firearms, as well as traps
and other commodities useful for hunting, by the 1671 Game Act.
Following the Bill of Rights, Parliament reenacted that statute,
leaving its operative parts unchanged with one exception--which
removed the word "guns" from the list of items forbidden to the
poorer citizens.[25] The right to keep and bear arms would hence-
forth belong to all English subjects, rich and poor alike.
In the colonies, availability of hunting and need for defense led
to armament statues comparable to those of the early Saxon
times. In 1623, Virginia forbade its colonists to travel unless they
were "well armed"; in 1631 it required colonists to engage in target
practice on Sunday and to "bring their peeces to church."[26] In
1658 it required every householder to have a functioning firearm
within his house and in 1673 its laws provided that a citizen who
claimed he was too poor to purchase a firearm would have one
purchased for him by the government, which would then require
him to pay a reasonable price when able to do so.[27] In Massachu-
setts, the first session of the legislature ordered that not only
freemen but also indentured servants own firearms and in 1644 it
imposed a stern 6 shilling fine upon any citizen who was not
armed.[28]
When the British government began to increase its military pres-
ence in the colonies in the mid-eighteenth century, Massachusetts
responded by calling upons its citizens to arm themselves in defense.
One colonial newspaper argued that it was impossible to complain
that his act was illegal since they were "British subjects, to whom
the privilege of possessing arms is expressly recognized by the Bill
of Rights" while another argued that this "is a natural right which
the people have reserved to themselves, confirmed by the Bill of
Rights, to keep arms for their own defense".[29] The newspaper
cited Blackstone's commentaries on the laws of England, which had
listed the "having and using arms for self preservation and de-
fense" among the "absolute rights of individuals." The colonists
felt they had an absolute right at common law to own firearms.
Together with freedom of the press, the right to keep and bear
arms became on of the individual rights most prized by the colo-
nists. When British troops seized a militia arsenal in September,
1774, and incorrect rumors that colonists has been killed spread
though Massachusetts, 60,000 citizens took up arms.[30] A few
months later, when Patrick Henry delivered his famed "Give me
liberty or give me death" speech, he spoke in support of a proposi-
tion "that a well regulated militia, composed of gentlemen and
freemen, is the natural strength and only security of a free govern-
ment. . . ." Throughout the following revolution, formal and infor-
mal units of armed citizens obstructed British communication, cut
off foraging parties, and harassed the thinly stretched regular
forces. When seven states adopted state "bills of rights" following
the Declaration of Independence, each of those bills of rights pro-
vided either for protection of the concept of a militia or for an
express right to keep and bear arms.[31]
Following the revolution but previous to the adoption of the
Constitution, debates over militia proposals occupied a large part of
the policital[[sic]] scene. A variety of plans were put forth by figures
ranging from George Washington to Baron von Steuben.[32] All of
the proposals called for a general duty of all citizens to be armed,
although some proposals (most notably von Steuben's) also empha-
sized a "select militia" which would be paid for its services and
given special training. In this respect, this "select militia" was the
successor of the "trained bands" and the predecessor of what is
today the "national guard". In the debates over the Constitution,
von Steubon's proposals were criticized as undemocratic. In Con-
necticut one writer complained of a proposal that "this looks too
much like Baron von Steubon's militia, by which a standing army
was meant and intended."[33] In pennsylvania, a delegate argued
"Congress may give us a select militia which will, in fact, be a
standing army--or Congress, afraid of a general militia, may say
there will be no militia at all. When a select militia is formed, the
people in general may be disarmed."[34] Richard Henry Lee, in his
widely read pamphlet "Letters from the Federal Farmer to the
Republican" worried that the people might be disarmed "by model-
ling the militia. Should one fifth or one eighth part of the people
capable of bearing arms be made into a select militia, as has been
proposed, and those the young and ardent parts of the community,
possessed of little or no property, the former will answer all the
purposes of an army, while the latter will be defenseless." He
proposed that "the Constitution ought to secure a genuine, and
guard against a select militia," adding that "to preserve liberty, it
is essential that the whole body of the people always possess arms
and be taught alike, especially when young, how to use them."[35]
The suspicion of select militia units expressed in these passages
is a clear indication that the framers of the Constitution did not
seek to guarantee a State right to maintain formed groups similar
to the National Guard, but rather to protect the right of individual
citizens to keep and bear arms. Lee, in particular, sat in the Senate
which approved the Bill of Rights. He would hardly have meant
the second amendment to apply only to the select militias he so
feared and disliked.
Other figures of the period were of like mind. In the Virginia
convention, George Mason, drafter of the Virginia Bill of Rights,
accused the British of having plotted "to disarm the people--that
was the best and most effective way to enslave them", while Pat-
rick Henry observed that "The great object is that every man be
armed" and "everyone who is able may have a gun".[36]
Nor were the antifederalist, to whom we owe credit for a Bill of
Rights, alone on this account. Federalist arguments also provide a
source of support for an individual rights view. Their arguments in
favor of the proposed Constitution also relied heavily upon univer-
sal armament. The proposed Constitution had been heavily criti-
cized for its failure to ban or even limit standing armies. Unable to
deny this omission, the Constitution's supporters frequently argued
to the people that their universal armament of Americans made
such limitations unnecessary. A pamphlet written by Noah Web-
ster, aimed at swaying Pennsylvania toward ratification, observed
Before a standing army can rule, the people must be
disarmed; as they are in almost every kingdom in Europe.
The supreme power in America cannot enforce unjust laws
by the sword, because the whole body of the people are
armed, and constitute a force superior to any band of
regular troops that can be, on any pretense, raised in the
United States.[37]
In the Massachusetts convention, Sedgwick echoed the same
thought, rhetorically asking if an oppressive army could be formed
or "if raised, whether they could subdue a Nation of Freeman, who
know how to prize liberty, and who have arms in their hands?"[38]
In Federalist Paper 46, Madison, later author of the Second Amend-
ment, mentioned "The advantage of being armed, which the
Americans possess over the people of all other countries" and that
"notwithstanding the military establishments in the several king-
doms of Europe, which are carried as far as the public resources
will bear, the governments are afraid to trust the people with
arms."
A third and even more compelling case for an individual rights
perspective on the Second Amendment comes from the State de-
mands for a bill of rights. Numerous state ratifications called for
adoption of a Bill of Rights as a part of the Constitution. The first
such call came from a group of Pennsylvania delegates. Their
proposals, which were not adopted but had a critical effect on
future debates, proposed among other rights that "the people have
a right to bear arms for the defense of themselves and their own
state, or the United States, or for the purpose of killing game; and
no law shall be passed for disarming the people or any or them,
unless for crimes committed, or a real danger of public injury from
individuals."[39] In Massachusetts, Sam Adams unsuccessfully
pushed for a ratification conditioned on adoption of a Bill of Rights,
beginning with a guarantee "That the said Constitution shall never
be construed to authorize Congress to infringe the just liberty of
the press or the rights of conscience; or to prevent the people of the
United States who are peaceable citizens from keeping their own
arms. . . ."[40] When New Hampshire gave the Constitution the
ninth vote needed for its passing into effect, it called for adoption
of a Bill of Rights which included the provision that "Congress
shall never disarm any citizen unless such as are or have been in
actual rebellion".[41] Virginia and North Carolina thereafter called
for a provision "that the people have the right to keep and bear
arms; that a well regulated militia composed of the body of the
people trained to arms is the proper, natural and safe defense of a
free state."[42]
When the first Congress convened for the purpose of drafting a
Bill of Rights, it delegated the task to James Madison. Madison did
not write upon a blank tablet. Instead, he obtained a pamphlet
listing the State proposals for a Bill of Rights and sought to pro-
duce a briefer version incorporating all the vital proposals of these.
His purpose was to incorporate, not distinguish by technical
changes, proposals such as that of the Pennsylvania minority, Sam
Adams, and the New Hampshire delegates. Madison proposed among
other rights that:
"The right of the people to keep and bear arms shall not
be infringed; a well armed and well regulated militia being
the best security of a free country; but no person religious-
ly scrupulous of bearing arms shall be compelled to render
military service in person."[43]
In the House, this was initially modified so that the militia
clause came before the proposal recognizing the right. The propos-
als for the Bill of Rights were then trimmed in the interests of
brevity. The conscientious objector clause was removed following
objections by Elbridge Gerry, who complained that future Congress-
es might abuse the exemption for the scrupulous to excuse every-
one from militia service.
The proposal finally passed the House in its present form: "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." In this form it was submitted into the Senate, which
passed it the following day. The Senate in the process indicated its
intent that the right be an individual one, for private purposes, by
rejecting an amendment which would have limited the keeping and
bearing of arms to bearing "for the common defense".
The earliest American constitutional commentators concurred in
giving this broad reading to the amendment. When St. George
Tucker, later Chief Justice of the Virginia Supreme Court, in 1803
published an edition of Blackstone annotated to American law, he
followed Blackstone's citation of the right of the subject "of having
arms suitable to their condition and degree, and such as are al-
lowed by law" with a citation to the Second Amendment, "And this
without any qualification as to their condition or degree, as is the
case in the British government".[44] William Rawle's "View of the
Constitution" published in Philadelphia in 1825 noted that under
the Second Amendment
The prohibition is general. No clause in the Constitution
could by a rule of construction be conceived to give to
Congress a power to disarm the people. Such a flagitious
attempt could only be made under some general pretense
by a state legislature. But if in blind pursuit of inordinate
power, either should attempt it, this amendment may be
appealed to as a restraint on both."[45]
The Jefferson papers in the Library of Congress show that both
Tucker and Rawle were friends of, and corresponded with Thomas
Jefferson. This suggests that their assessment, as contemporaries of
the Constitution's drafters, should be afforded special considera-
tion.
Later commentators agreed with Tucker and Rawle. For in-
stance, Joseph Story in his "Commentaries on the Constitution"
considered the right to keep and bear arms as "the palladium of
the liberties of the republic", which deterred tyranny and enabled
the citizenry at large to overthrow it should it come to pass.[46]
Subsequent legislation in the Second Congress likewise supports
the interpretation of the second amendment that creates an indi-
vidual right. In the Militia Act of 1792, the second Congress de-
fined "militia of the United States" to include almost every free
adult male in the United States. These persons were obliged by
law to possess a firearm and a minimum supply of ammunition
and military equipment.[47] This statute, incidentally remained in
effect into the early years of the present century as a legal require-
ment of gun ownership for most of the population of the United
States. There can be little doubt from this that when the Congress
and the people spoke of a "militia", they had reference to the
traditional concept of the entire populace capable of bearing arms,
and not to any formal group such as what is today called the
National Guard. The purpose was to create an armed citizenry,
such as the political theorists at the time considered essential to
ward off tyranny. From this militia, appropriate measures might
create a "well regulated militia" of individuals trained in their
duties and responsibilities as citizens and owners of firearms.
The Second Amendment as such was rarely litigated prior to the
passage of the Fourteenth Amendment. Prior to that time, most
courts accepted that the commands of the federal Bill of Rights did
not apply to the states. Since there was no federal firearms legisla-
tion at this time, there was no legislation which was directly sub-
ject to the Second Amendment, if the accepted interpretations were
followed. However, a broad variety of state legislation was struck
down under state guarantees of the right to keep and bear arms
and even in a few cases, under the Second Amendment, when it
came before courts which considered the federal protections appli-
cable to the states. Kentucky in 1813 enacted the first carrying
concealed weapon statute in the United States; in 1822 the Ken-
tucky Court of Appeals struck down the law as a violation of the
state constitutional protection of the right to keep and bear arms;
"And can there be entertained a reasonable doubt but that the provi-
sions of that act import a restraint on the right of the citizen to
bear arms? The court apprehends it not. The right existed at the
adoption of the Constitution; it then had no limit short of the
moral power of the citizens to exercise it, and in fact consisted of
nothing else but the liberty of the citizen to bear arms."[48] On the
other hand, a similar measure was sustained in Indiana, not upon
the grounds that a right to keep and bear arms did not apply, but
rather upon the notion that a statute banning only concealed car-
rying still permitted the carrying of arms and merely regulated
one possible way of carrying them.[49] A few years later, the Su-
preme Court of Alabama upheld a similar statute but added "We
do not desire to be understood as maintaining, that in regulating
the manner of wearing arms, the legislature has no other limit
than its own discretion. A statute which, under the pretense of
regulation, amounts to a destruction of that right, or which re-
quires arms to be so borne as to render them wholly useless for the
purpose of defense, would be clearly unconstitutional."[50] When
the Arkansas Supreme Court in 1842 upheld a carrying concealed
weapons statute, the chief justice explained that the statute would
not "detract anything from the power of the people to defend their
free state and the established institutions of the country. It prohib-
its only the wearing of certain arms concealed. This is simply a
regulation as to the manner of bearing such arms as are specified",
while the dissenting justice proclaimed "I deny that any just or
free government upon earth has the power to disarm its citi-
zens.[51]
Sometimes courts went farther. When in 1837, Georgia totally
banned the sale of pistols (excepting the larger pistols "known and
used as horsemen's pistols") and other weapons, the Georgia Su-
preme Court in Nunn v. State held the statute unconstitutional
under the Second Amendment to the federal Constitution. The
court held that the Bill of Rights protected natural rights which
were fully as capable of infringement by states as by the federal
government and that the Second Amendment provided "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
merely such as are used by the militia, shall not be infringed,
curtailed, or broken in on, in the slightest degree; and all this for
the important end to be attained: the rearing up and qualifying of
a well regulated militia, so vitally necessary to the security of a
free state."[52] Prior to the Civil War, the Supreme Court of the
United States likewise indicated that the privileges of citizenship
included the individual right to own and carry firearms. In the
notorious Dred Scott case, the court held that black Americans
were not citizens and could not be made such by any state. This
decision, which by striking down the Missouri Compromise did so
much to bring on the Civil War, listed what the Supreme Court
considered the rights of American citizens by way of illustrating
what rights would have to be given to black Americans if the Court
were to recognize them as full fledged citizens:
It would give to persons of the negro race, who are
recognized as citizens in any one state of the Union, the
right to enter every other state, whenever they
pleased. . . . and it would give them full liberty of speech
in public and in private upon all subjects upon which its
own citizens might meet; to hold public meetings upon
political affairs, and to keep and carry arms wherever they
went.[53]
Following the Civil War, the legislative efforts which gave us
three amendments to the Constitution and our earliest civil rights
acts likewise recognized the right to keep and bear arms as an
existing constitutional right of the individual citizen and as a right
specifically singled out as one protected by the civil rights acts
and by the Fourteenth Amendment to the Constitution, against in-
fringement by state authorities. Much of the reconstruction effort
in the South had been hinged upon the creation of "black militias"
composed of the armed and newly freed blacks, officered largely by
black veterans of the Union Army. In the months after the Civil
War, the existing southern governments struck at these units with
the enactment of "black codes" which either outlawed gun owner-
ship by blacks entirely, or imposed permit systems for them, and
permitted the confiscation of firearms owned by blacks. When the
Civil Rights Act of 1866 was debated members both of the Senate
and the House referred to the disarmament of blacks as a major
consideration.[54] Senator Trumbull cited provisions outlawing
ownership of arms by blacks as among those which the Civil Rights
Act would prevent;[55] Senator Sulsbury complained on the other
hand that if the act were to be passed it would prevent his own
state from enforcing a law banning gun ownership by individual
free blacks.[56] Similar arguments were advanced during the de-
bates over the "anti-KKK act"; its sponsor at one point explained
that a section making it a federal crime to deprive a person of
"arms or weapons he may have in his house or possession for the
defense of his person, family or property" was "intended to enforce
the well-known constitutional provisions guaranteeing the right in
the citizen to 'keep and bear arms'."[57] Likewise, the debates over
the Fourteenth Amendment Congress frequently referred to the
Second Amendment as one of the rights which it intended to
guarantee against state action.[58]
Following adoption of the Fourteenth Amendment, however, the
Supreme Court held that that Amendment's prohibition against
states depriving any persons of their federal "privileges and immu-
nities" was to be given a narrow construction. In particular, the
"privileges and immunities" under the Constitution would refer
only to those rights which were not felt to exist as a process of
natural right, but which were created solely by the Constitution.
These might refer to rights such as voting in federal elections and
of interstate travel, which would clearly not exist except by virtue
of the existence of a federal government and which could not be
said to be "natural rights".[59] This paradoxically meant that the
rights which most persons would accept as the most important--
those flowing from concepts of natural justice--were devalued at
the expense of more technical rights. Thus when individuals were
charged with having deprived black citizens of their right to free-
dom of assembly and to keep and bear arms, by violently breaking
up a peaceable assembly of black citizens, the Supreme Court in
United States v. Cruikshank[60] held that no indictment could be
properly brought since the right "of bearing arms for a lawful
purpose" is "not a right granted by the Constitution. Neither is it
in any manner dependent upon that instrument for its existence."
Nor, in the view of the Court, was the right to peacefully assemble
a right protected by the Fourteenth Amendment: "The right of the
people peaceably to assemble for lawful purposes existed long
before the adoption of the Constitution of the United States. In
fact it is and has always been one of the attributes of citizenship
under a free government. . . . It was not, therefore, a right granted
to the people by the Constitution." Thus the very importance of the
rights protected by the First and Second Amendment was used as the
basis for the argument that they did not apply to the states
under the Fourteenth Amendment. In later opinions, chiefly Press-
er v. Illinois[61] and Miller v. Texas,[62] the Supreme Court ad-
hered to the view. Cruikshank has clearly been superseded by
twentieth century opinions which hold that portions of the Bill of
Rights--and in particular the right to assembly with which Cruik-
shank dealt in addition to the Second Amendment--are binding
upon the state governments. Given the legislative history of the
Civil Rights Acts and the Fourteenth Amendment, and the more
expanded views of incorporation which have become accepted in
our own century, it is clear that the right to keep and bear arms
was meant to be and should be protected under the civil rights
statutes and the Fourteenth Amendment against infringement by
officials acting under color of state law.
Within our own century, the only occasion upon which the
Second Amendment has reached the Supreme Court came in
United States v. Miller.[63] There, a prosecution for carrying a
sawed off shotgun was dismissed before trial on Second Amend-
ment grounds. In doing so, the court took no evidence as to the
nature of the firearm or indeed any other factual matter. The
Supreme Court reversed on procedural grounds, holding that the
trial court could not take judicial notice of the relationship be-
tween a firearm and the Second Amendment, but must receive
some manner of evidence. It did not formulate a test nor state
precisely what relationship might be required. The court's state-
ment that the amendment was adopted "to assure the continuation
and render possible the effectiveness of such [militia] forces" and
"must be interpreted and applied with that end in view", when
combined with the court's statement that all constitutional sources
"show plainly enough that the militia comprised all males phys-
ically capable of acting in concert for the common defense. . . .
these men were expected to appear bearing arms supplied by them-
selves and of the kind in common use at the time,"[64] suggests
that at the very least private ownership by a person capable of self
defense and using an ordinary privately owned firearm must be
protected by the Second Amendment. What the Court did not do in
Miller is even more striking: It did not suggest that the lower court
take evidence on whether Miller belonged to the National Guard or
a similar group. The hearing was to be on the nature of the
firearm, not on the nature of its use; nor is there a single sugges-
tion that National Guard status is relevant to the case.
The Second Amendment right to keep and bear arms therefore,
is a right of the individual citizen to privately posses and carry in
a peaceful manner firearms and similar arms. Such an "individual
rights" interpretation is in full accord with the history of the right
to keep and bear arms, as previously discussed. It is moreover in
accord with contemporaneous statements and formulations of the
right by such founders of this nation as Thomas Jefferson and
Samuel Adams, and accurately reflects the majority of the propos-
als which led up to the Bill of Rights itself. A number of state
constitutions, adopted prior to or contemporaneously with the fed-
eral Constitution and Bill of Rights, similarly provided for a right
of the people to keep and bear arms. If in fact this language creates
a right protecting the states only, there might be a reason for it to
be inserted in the federal Constitution but no reason for it to be
inserted in state constitutions. State bills of rights necessarily pro-
tect only against action by the state, and by definition a state
cannot infringe its own rights; to attempt to protect a right belong-
ing to the state be inserting it in a limitation of the state's own
powers would create an absurdity. The fact that the contemporar-
ies of the framers did insert these words into several state constitu-
tions would indicate clearly that they viewed the right as belonging
to the individual citizen, thereby making it a right which could be
infringed either by state or federal government and which must be
protected against infringement by both.
Finally, the individual rights interpretation gives full meaning to
the words chosen by the first Congress to reflect the right to keep
and bear arms. The framers of the Bill of Rights consistently used
the words "right of the people" to reflect individual rights--as
when these words were used to recognize the "right of the people"
to peaceably assemble, and the "right of the people" against unrea-
sonable searches and seizures. They distinguished between the
rights of the people and of the state in the Tenth Amendment. As
discussed earlier, the "militia" itself referred to a concept of a
universally armed people, not to any specifically organized unit.
When the framers referred to the equivalent of our National
Guard, they uniformly used the term "select militia" and distin-
guished this from "militia". Indeed, the debates over the Constitu-
tion constantly referred to organized militia units as a threat to
freedom comparable to that of a standing army, and stressed that
such organized units did not constitute, and indeed were philo-
sophically opposed to, the concept of a militia.
That the National Guard is not the "Militia" referred to in the
second amendment is even clearer today. Congress has organized
the National Guard under its power to "raise and support armies"
and not its power to "Provide for organizing, arming and disciplin-
ing the Militia".[65] This Congress chose to do in the interests of
organizing reserve military units which were not limited in deploy-
ment by the strictures of our power over the constitutional militia,
which can be called forth only "to execute the laws of the Union,
suppress insurrections and repel invasions." The modern National
Guard was specifically intended to avoid status as the constitution-
al militia, a distinction recognized by 10 U.S.C. Sec 311(a).
The conclusion is thus inescapable that the history, concept, and
wording of the second amendment to the Constitution of the
United States, as well as its interpretation by every major com-
mentator and court in the first half-century after its ratification,
indicates that what is protected is an individual right of a private
citizen to own and carry firearms in a peaceful manner.
REFERENCES
1. Charles Hollister, Anglo-Saxon Military Institutions 11-42
(Oxford University Press 1962); Francis Grose, Military Antiquities
Respecting a History of the British Army, Vol I at 1-2 (London, 1812)
2. Grose, supra, at 9-11; Bruce Lyon, A Constitutional and Legal
History of Medieval England 273 (2d. ed. New York 1980)
3. J. J. Bagley and P. B. Rowley, A Documentary History of England
1066-1540, Vol 1 at 155-56 (New York 1965)
4. Statute of Winchester (13 Edw. I c. 6). See also Bagley and Rowley,
supra at 158.
5. 7 Ed. I c. 2 (1279).
6. Statute of Northampton (2 Edw. III c. 3).
7. Rex v. Knight, 90 Eng Rep. 330; 87 Eng Rep. 75 (King's Bench, 1686).
8. E. G. Heath, The Grey Goose Wing 109 (London, 1971).
9. 19 Hen. VII c. 4 (1503).
10. 3 Hen. VIII c. 13 (1511).
11. 64 Hen. VIII c. 13 (1514).
12. 33 Hen. VIII c. 6 (1514).
13. Noel Perrin, Giving Up the Gun 59-60 (Boston, 1979).
14. Jim Hill, The Minuteman in War and Peace 26-27 (Harrisburg, 1968).
15. Charles Oman, A History of the Art of War in the Sixteenth
Century 288 (New York, 1937).
16. William Blackstone, Commentaries, Vol. 2 at 412 (St. George
Tucker, ed., Philadelphia 1803).
17. "An Act for Settling the Militia," Ordinances and Acts of the
Interregnum, Vol. 2 1320 (London, HMSO 1911).
18. 8 Calendar of State Papers (Domestic), Charles II, No 188, p. 150.
19. 14 Car. II c. 3 (1662).
20. Joyce Malcolm, Disarmed: The Loss of the Right to Bear Arms in
Restoration England, at 11 (Mary Ingraham Bunting Institute, Radcliffe
College 1980).
21. Thomas Macaulay, The History of England from the Accession of
Charles II, Vol. II at 137 (London, 1856).
22. Phillip, Earl of Hardwicke, Miscellaneous State Papers from 1501-
1726, vol. 2 at 407-17 (London, 1778).
23. J. R. Western, Monarchy and Revolution: The English State in the
1680's, at 339 (Totowa, N.J., 1972)
24. Journal of the House of Commons from December 26, 1688, to October
26, 1693, at 29. (London, 1742). The Bill of Rights was ultimately
enacted in this form. 1 Gul. and Mar., Sess. 2, c. 2 (1689)
25. Joyce Malcolm, supra, at 16.
26. William Hening, The Statutes at Large: Being a Collection of All
the Laws of Virginia from the First Session of the Legislature in 1619,
at pp. 127, 173-74 (New York, 1823).
27. Id.
28. William Brigham, The Compact with the Charter and Laws of the
Colony of New Plymouth, 31, 76 (Boston, 1836).
29. Oliver Dickerson, ed., Boston Under Military Rule, 61, 79
(Boston, 1936).
30. Steven Patterson, Political Parties in Revolutionary Massachusetts,
at 103 (Univ. of Wisconsin Press, 1973).
31. See Sprecher, The Lost Amendment, 51 A.B.A.J. 554, 665 (1965).
32. The most extensive studies of these militia proposals are John
McAuley Palmer, Washington, Lincoln, Wilson: Three War Statesmen (New
York, 1930); Frederick Stern, Citizen Army (New York, 1957); John
Mahon, The American Militia: Decade of Decision 1789-1800 (Univ of
Florida, 1960).
33. Merrill Jensen, ed., The Documentary of History of the Ratification
of the Constitution, vol 3 at 378 (Madison, Wisc.).
34. Id., vol. 2 at 508.
35. Walter Bennett, ed., Letters from the Federal Farmer to the
Republican, at 21, 22, 124 (Univ. of Alabama Press, 1975).
36. Debates and other Proceedings of the Convention of Virginia, . . .
taken in shorthand by David Robertson of Petersburg, at 271, 275 (2d
ed. Richmond, 1805).
37. Noah Webster, "An Examination into the Leading Principles of the
Federal Constitution . . .", in Paul Ford, ed., Pamphlets on the Consti-
tution of the United States, at 56 (New York, 1888).
38. Johnathan Elliott, ed., Debates in the Several State Conventions
on the Adoption of the Federal Constitution, vol. 2 at 97 (2d ed., 1888).
39. Merrill Jensen, supra, vol. 2 at 597-98.
40. Debates and Proceedings in the Convention of the Commonwealth of
Massachusetts, at 86-87 (Peirce & Hale, eds., Boston, 1850); 2 B.
Schwartz, the Bill of Rights 675 (1971).
41. Documents Illustrative of the Formation of the Union of the
American States, at 1026 (Washington, D.C.: GPO, 1927).
42. Id. at 1030
43. Annals of Congress 434 (1789).
44. St. George Tucker, ed., Blackstone's Commentaries, Volume 1
at 143 n. 40, 41 (Philadelphia, 1803).
45. William Rawle, A View of the Constitution 125-6 (2d ed.,
Philadelphia, 1803).
46. Joseph Story, Commentaries on the Constitution, vol. 2 at 746 (1833).
47. Act of May 8, 1792; Second Cong., First Session, ch. 33.
48. Bliss v. Commonwealth, 12 Ken. (2 Litt.) 90, 92 (1822)
49. State v. Mitchell, (3 Black.) 229.
50. State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840).
51. State v. Buzzard, 4 Ark. 18, 27, 36 (1842). The Arkansas Constitu-
tional provision at issue was narrower than the second amendment, as it
protected keeping and bearing arms "for the common defense." Id. at 34.
52. Nunn v. State, 1 Ga. 243, 251 (1846).
53. Dred Scott v. Sandford, 60 U.S. 691, 705.
54. The most comprehensive work in this field of constitutional law is
Steven Halbrook, the Jurisprudence of the Second and Fourteenth Amendments
(Institute for Humane Studies, Menlo Park, California, 1979), reprinted in
4 George Mason L. Rev. 1 (1981).
55. Cong. Globe, 39th Congress, 1st Sess., pt. 1, p. 474 (Jan. 29, 1866).
56. Id. at 478.
57. H.R. Rep. No. 37, 41st Cong., 3d sess., p. 3 (1871).
58. See generally Halbrook, supra, at 42-62.
59. Slaughterhouse Cases, 83 U.S. 36 (L873).
60. United States v. Cruikshank, 92 U.S. 542 (1876).
61. Presser v. Illinois, 116 U.S. 252 (1886).
62. Miller v. Texas, 153 U.S. 535 (1894
63. United States v. Miller, 307 U.S. 175 (1939).
64. Id. at 178, 179.
65. H.R. Report No. 141, 73d Cong., 1st sess. at 2-5 (1933).
APPENDIX
CASE LAW
The United States Supreme Court has only three times com-
mented upon the meaning of the second amendment to our consti-
tution. The first comment, in Dred Scott, indicated strongly that
the right to keep and bear arms was an individual right; the Court
noted that, were it to hold blacks to be entitled to equality of
citizenship, they would be entitled to keep and carry arms wherev-
er they went. The second, in Miller, indicated that a court cannot
take judicial notice that a short-barrelled shotgun is covered by the
second amendment--but the Court did not indicate that National
Guard status is in any way required for protection by that amend-
ment, and indeed defined "militia" to include all citizens able to
bear arms. The third, a footnote in Lewis v. United States, indicat-
ed only that "these legislative restrictions on the use of fire-
arms"--a ban on possession by felons--were permissable[[sic]]. But since
felons may constitutionally be deprived of many of the rights of
citizens, including that of voting, this dicta reveals little. These
three comments constitute all significant explanations of the scope
of the second amendment advanced by our Supreme Court. The
case of Adam v. Williams has been cited as contrary to the princi-
ple that the second amendment is an individual right. In fact, that
reading of the opinion comes only in Justice Douglas's dissent from
the majority ruling of the Court.
The appendix which follows represents a listing of twenty-one
American decisions, spanning the period from 1822 to 1981, which
have analysed right to keep and bear arms provisions in the light
of statutes ranging from complete bans on handgun sales to bans
on carrying of weapons to regulation of carying by permit sys-
tems. Those decisions not only explained the nature of such a right,
but also struck down legislative restrictions as violative of it, are
designated by asterisks.
20th century cases
1. *State v. Blocker, 291 Or. 255, -- -- --P.2d-- -- -- (1981).
"The statue is written as a total proscription of the mere posses-
sion of certain weapons, and that mere possession, insofar as a billy
is concerned, is constitutionally protected."
"In these circumstances, we conclude that it is proper for us to
consider defendant's 'overbreadth' attack to mean that the statute
swept so broadly as to infringe rights that it could not reach, which
in the setting means the right to possess arms guaranteed by
sec 27."
2. *State v. Kessler, 289 Or. 359, 614 P.2d 94, at 95, at 98 (1980).
"We are not unmindful that there is current controversy over
the wisdom of a right to bear arms, and that the original motiva-
tions for such a provision might not seem compelling if debated as
a new issue. Our task, however, in construing a constitutional
provision is to respect the principles given the status of constitu-
tional guarantees and limitations by the drafters; it is not to aban-
don these principles when this fits the needs of the moment."
"Therefore, the term 'arms' as used by the drafters of the consti-
tuions probably was intended to include those weapons used by
settlers for both personal and military defense. The term 'arms'
was not limited to firearms, but included several handcarried
weapons commonly used for defense. The term 'arms' would not
have included cannon or other heavy ordance not kept by militia-
men or private citizens."
3. Motley v. Kellogg, 409 N.E.2d 1207, at 1210 (Ind. App. 1980)
(motion to transfer denied 1-27-1981).
"[N]ot making applications available at the chief's office effec-
tively denied members of the community the opportunity to obtain
a gun permit and bear arms for their self-defense."
4. Schubert v. DeBard, 398 N.E.2d 1339, at 1341 (Ind. App. 1980)
(motion to transfer denied 8-28-1980).
"We think it clear that our constitution provides our citizenry
the right to bear arms for their self-defense."
5. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App. 1975)
"The pistols in question are not contraband. * * * Under Art. I,
sec 23, Mo. Const. 1945, V.A.M.S., every citizen has the right to keep
and bear arms in defense of his home, person, and property, with
the limitation that this section shall not justify the wearing of
concealed arms."
6. *City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745
(en banc 1972).
"As an example, we note that this ordinance would prohibit
gunsmiths, pawnbrokers and sporting goods stores from carrying
on a substantial part of their business. Also, the ordinance appears
to prohibit individuals from transporting guns to and from such
places of business. Furthermore, it makes it unlawful for a person
to possess a firearm in a vehicle or in a place of business for the
purpose of self-defense. Several of these activities are constitution-
ally protected. Colo. Const. art. II, sec 13."
7. *City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738
(N.M. App. 1971).
"It is our opinion that an ordinance may not deny the people the
constitutionally guaranteed right to bear arms, and to that extent
the ordinance under consideration is void."
8. State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952).
"The law of this jurisdiction accords to the defendant the right to
keep and bear arms and to use same in defense of his own home,
his person and property."
9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950).
"The second amendment to the constitution of the United States
provides the right of the people to keep and bear arms shall not be
infringed. This of course does not prevent the enactment of a law
against carrying concealed weapons, but it does indicate it should
be kept in mind, in the construction of a statue of such character,
that it is aimed at persons of criminal instincts, and for the preven-
tion of crime, and not against use in the protection of person or
property."
10. *People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 246 (en
banc 1936).
"It is equally clear that the act wholly disarms aliens for all
purposes. The state . . . cannot disarm any class of persons or
deprive them of the right guaranteed under section 13, article II of
the Constitution, to bear arms in defense of home, person and
property. The guaranty thus extended is meaningless if any person
is denied the right to posses arms for such protection."
11. *Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11
S.W. 2d 678 (1928).
"There is no qualifications of the prohibition against the carry-
ing of a pistol in the city ordinance before us but it is made
unlawful 'to carry on or about the person any pistol,' that is, any
sort of pistol in any sort of maner. *** [W]e must accordingly hold
the provision of this ordinance as to the carrying of a pistol
invalid."
12. *People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922).
"The provision in the Constitution granting the right to all per-
sons to bear arms is a limitation upon the right of the Legislature
to enact any law to the contrary. The exercise of a right guaran-
teed by the Constitution cannot be made subject to the will of the
sheriff."
13 *State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921).
"We are of the opinion, however, that 'pistol' ex vi termini is
properly included within the word 'arms,' and that the right to
bear such arms cannot be infringed. The historical use of pistols as
'arms' of offense and defense is beyond controversy."
"The maintencance of the right to bear arms is a most essential
one to every free people and should not be whittled down by
technical constructions."
14. *State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903).
"The people of the state have a right to bear arms for the
defense of themselves and the state. *** The result is that Ordi-
nance No. 10, so far as it relates to the carrying of a pistol, is
inconsistent with and repugnant to the Constitution and the laws
of the state, and it is therefore to that extent, void."
15. *In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902).
"The second amendment to the federal constitution is in the
following language: 'A well-regulated militia, being necessary to
the security of a free state, the right of the people to keep and bear
arms, shall not be infringed.' The language of section 11, article I
of the constitution of Idaho, is as follows: 'The people have the
right to bear arms for their security and defense, but the legisla-
ture shall regulate the exercise of this right by law.' Under these
constitutional provisions, the legislature has no power to prohibit a
citizen from bearing arms in any portion of the state of Idaho,
whether within or without the corporate limits of cities, towns, and
villages."
19th century cases
16. * Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54
(1878).
"If cowardly and dishonorable men sometimes shoot unarmed
men with army pistols or guns, the evil must be prevented by the
penitentiary and gallows, and not by a general deprivation of con-
stitutional privilege."
17. *Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878).
"We believe that portion of the act which provides that, in case
of conviction, the defendant shall forfeit to the county the weapon
of weapons so found on or about his person is not within the scope
of legislative authority. * * * One of his most sacred rights is that
of having arms for his own defence and that of the State. This
right is one of the surest safeguards of liberty and self-preserva-
tion."
18. *Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871).
"The passage from Story shows clearly that this right was in-
tended, as we have maintained in this opinion, and was guaranteed
to and to be exercised and enjoyed by the citizen as such, and not
by him as a soldier, or in defense solely of his political rights."
19. *Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
"'The right of the people to bear arms shall not be infringed."
The right of the whole people, old and young, men, women and
boys, and not militia only, to keep and bear arms of every descrip-
tion, and not such merely as are used by the militia, shall not be
infringed, curtailed, or broken in upon, in the smallest degree; and
all this for the important end to be attained: the rearing up and
qualifying a well-regulated militia, so vitally necessary to the secu-
rity of a free State."
20. Simpson v. State, 13 Tenn. 356, at 359-60 (1833).
"But suppose it to be assumed on any ground, that our ancestors
adopted and brought over with them this English statute, [the
statute of Northampton,] or portion of the common law, our consti-
tution has completely abrogated it; it says, 'that the freemen of this
State have a right to keep and bear arms for their common de-
fence.' Article II, sec. 26. * * * By this clause of the constitution,
an express power is given and secured to all the free citizens of the
State to keep and bear arms for their defence, without any qualifi-
cation whatever as to their kind or nature; and it is conceived, that
it would be going much too far, to impair by construction or
abridgement a constitutional privilege, which is so declared; nei-
ther, after so solumn an instrument hath said the people may
carry arms, can we be permitted to impute to the acts thus li-
censed, such a necessarily consequent operation as terror to the
people to be incurred thereby; we must attribute to the framers of
it, the absence of such a view."
21. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13
Am. Dec. 251 (1822).
"For, in principle, there is no difference between a law prohibit-
ing the wearing concealed arms, and a law forbidding the wearing
such as are exposed; and if the former be unconstitutional, the
latter must be so likewise."
"But it should not be forgotten, that it is not only a part of the
right that is secured by the constitution; it is the right entire and
complete, as it existed at the adoption of the constitution; and if
any 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 equally forbidden by the constitution."
The following represents a list of twelve scholarly articles which
have dealt with the subject of the right to keep and bear arms as
reflected in the second amendment to the Constitution of the
United States. The scholars who have undertaken this research
range from professors of law, history and philosophy to a United
States Senator. All have concluded that the second amendment is
an individual right protecting American citizens in their peaceful
use of firearms.
BIBLIOGRAPHY
Hays, THE RIGHT TO BEAR ARMS, A STUDY IN JUDICIAL MISINTERPRE-
TATION, 2 Wm. & Mary L. R. 381 (1960)
Sprecher, THE LOST AMENDMENT, 51 Am Bar Assn. J. 554 & 665 (2 parts)
(1965)
Comment, THE RIGHT TO KEEP AND BEAR ARMS: A NECESSARY CONSTI-
TUTIONAL GUARANTEE OR AN OUTMODED PROVISION OF THE BILL OF
RIGHT? 31 Albany L. R. 74 (1967)
Levine & Saxe, THE SECOND AMENDMENT: THE RIGHT TO BEAR ARMS, 7
Houston L. R. 1 (1969)
McClure, FIREAMRS AND FEDERALISM, 7 Idaho L. R. 197 (1970)
Hardy & Stompoly, OF ARMS AND THE LAY, 51 Chi.-Kent L. R. 62 (1974)
Weiss, A REPLY TO ADVOCATES OF GUN CONTROL LAW, 52 Jour. Urban
Law 577 (1974)
Whisker, HISTORICAL DEVELOPMENT AND SUBSEQUENT EROSION OF
THE RIGHT TO KEEP AND BEAR ARMS, 78 W. Va. L. R. 171 (1976)
Caplan, RESTORING THE BALANCE: THE SECOND AMENDMENT REVISIT-
ED, 5 Fordham Urban L. J. 31 (1976)
Caplan, HANDGUN CONTROL: CONSTITUTIONAL OR UNCONSTITUTION-
AL?, 10 N.C. Central L. J. 53 (1979)
Cantrell, THE RIGHT TO BEAR ARMS, 53 Wis Bar Bull. 21 (Oct. 1980)
Halbrook, THE JURISPRUDENCE OF THE SECOND AND FOURTEENTH
AMENDMENTS, 4 Geo. Mason L. Rev. 1 (1981)
ENFORCEMENT OF FEDERAL FIREARMS LAWS FROM THE
PERSPECTIVE OF THE SECOND AMENDMENT
Federal involvement in firearms possession and transfer was not
significant prior to 1934, when the National Firearms Act was
adopted. The National Firearms Act as adopted covered only fully
automatic weapons (machine guns and submachine guns) and rifles
and shotguns whose barrel length or overall length fell below
certain limits. Since the Act was adopted under the revenue power,
sale of these firearms was not made subject to a ban or permit
system. Instead, each transfer was made subject to a $200 excise
tax, which must be paid prior to transfer; the identification of the
parties to the transfer indirectly accomplished a registration pur-
pose.
The 1934 Act was followed by the Federal Firearms Act of 1938,
which placed some limitations upon sale of ordinary firearms. Per-
sons engaged in the business of selling those firearms in interstate
commerce were required to obtain a Federal Firearms License, at
an annual cost of $1, and to maintain records of the name and
address of persons to whom they sold firearms. Sales to persons
convicted of violent felonies were prohibited, as were interstate
shipments to persons who lacked the permits required by the law of
their state.
Thirty years after adoption of the Federal Firearms Act, the Gun
Control Act of 1968 worked a major revision of federal law. The
Gun Control Act was actually a composite of two statutes. The first
of these, adopted as portions of the Omnibus Crime and Safe
Streets Act, imposed limitations upon imported firearms, expanded
the requirement of dealer licensing to cover anyone "engaged in
the business of dealing" in firearms, whether in interstate or local
commerce, and expanded the recordkeeping obligations for dealers.
It also imposed a variety of direct limitations upon sales of hand-
guns. No transfers were to be permitted between residents of differ-
ent states (unless the recipient was a federally licensed dealer),
even where the transfer was by gift rather than sale and even
where the recipient was subject to no state law which could have
been evaded. The category of persons to whom dealers could not
sell was expanded to cover persons convicted of any felony (other
than certain business-related felonies such as antitrust violations),
persons subject to a mental commitment order or finding of mental
incompetence, persons who were users of marijuana and other
drugs, and a number of other categories. Another title of the Act
defined persons who were banned from possessing firearms. Para-
doxically, these classes were not identical with the list of classes
prohibited from purchasing or receiving firearms.
The Omnibus Crime and Safe Streets Act was passed on June 5,
1968, and set to take effect in December of that year. Barely two
weeks after its passage, Senator Robert F. Kennedy was assassinat-
ed while campaigning for the presidency. Less that a week after
his death, the second bill which would form part of the Gun Con-
trol Act of 1968 was introduced in the House. It was reported out of
Judiciary ten days later, out of Rules Committee two weeks after
that, and was on the floor barely a month after its introduction.
the second bill worked a variety of changes upon the original Gun
Control Act. Most significantly, it extended to rifles and shotguns
the controls which had been imposed solely on handguns, extended
the class of persons prohibited from possessing firearms to include
those who were users of marijuana and certain other drugs, ex-
panded judicial review of dealer license revocations by mandating a
de novo hearing once an appeal was taken, and permitted inter-
state sales of rifles and shotguns only where the parties resided in
contiguous states, both of which had enacted legislation permitting
such sales. Similar legislation was passed by the Senate and a
conference of the Houses produced a bill which was essentially a
modification of the House statute. This became law before the
Omnibus Crime Control and Safe Streets Act, and was therefore
set for the same effective date.
Enforcement of the 1968 Act was delegated to the Department of
the Treasury, which had been responsible for enforcing the earlier
gun legislation. This responsibility was in turn given to the Alcohol
and Tobacco Tax Division of the Internal Revenu Service. This
division had traditionally devoted itself to the pursuit of illegal
producers of alcohol; at the time of enactment of the Gun Control
Act, only 8.3 percent of its arrests were for firearms violations.
Following enactment of the Gun Control Act the Alcohol and To-
bacco Tax Division was retitled the Alcohol, Tobacco and Firearms
Division of the IRS. By July, 1972 it had nearly doubled in size and
became a complete Treasury bureau under the name of Bureau of
Alcohol, Tobacco and Firearms.
The mid-1970's saw rapid increases in sugar prices, and these in
turn drove the bulk of the "moonshiners" out of business. Over
15,000 illegal distilleries had been raided in 1956; but by 1976 this
had fallen to a mere 609. The BATF thus began to devote the bulk
of its efforts to the area of firearms law enforcement.
Complaint regarding the techniques used by the Bureau in an
effort to generate firearms cases led to hearings before the Subcom-
mittee on Treasury, Post Office, and General Appropriations of the
Senate Appropriations Committee in July 1979 and April 1980, and
before the Subcommittee on the Constitution of the Senate Judici-
ary Committee in October 1980. At these hearings evidence was
received from various citizens who had been charged by BATF,
>From experts who had studied the BATF, and from officials of the
Bureau itself.
Based upon these hearings, it is apparent that enforcement tac-
tics made possible by current federal firearms laws are constitu-
tionally, legally, and practically reprehensible. Although Congress
adopted the Gun Control Act with the primary object of limiting
access of felons and high-risk groups to firearms, the overbreadth
of the law has led to neglect of precisely this area of enforcement.
For example the Subcommittee on the Constitution received corre-
spondence from two members of the Illinois Judiciary, dated in
1980, indicating that they had been totally unable to persuade
BATF to accept cases against felons who were in possession of
firearms including sawed-off shotguns. The Bureau's own figures
demonstrate that in recent years the percentage of its arrests
devoted to felons in possession and persons knowingly selling to
them have dropped from 14 percent down to 10 percent of their
firearms cases. To be sure, genuine criminals are sometimes pros-
ecuted under other sections of the law. Yet, subsequent to these
hearings, BATF stated that 55 percent of its gun law prosecutions
overall involve persons with no record of a felony conviction, and a
third involve citizens with no prior police contact at all.
The Subcommittee received evidence that the BATF has primarily
devoted its firearms enforcement efforts to the apprehension, upon
technical malum prohibitum charges, of individuals who lack all
criminal intent and knowledge. Agents anxious to generate an
impressive arrest and gun confiscation quota have repeatedly en-
ticed gun collectors into making a small number of sales--often as
few as four--from their personal collections. Although each of the
sales was completely legal under state and federal law, the agents
then charged the collector with having "engaged in the business"
of dealing in guns without the required license. Since existing law
permits a felony conviction upon these charges even where the
individual has no criminal knowledge or intent numerous collec-
tors have been ruined by a felony record carrying a potential
sentence of five years in federal prison. Even in cases where the
collectors secured acquittal, or grand juries failed to indict, or
prosecutors refused to file criminal charges, agents of the Bureau
have generally confiscated the entire collection of the potential
defendant upon the ground that he intended to use it in that
violation of the law. In several cases, the agents have refused to
return the collection even after acquittal by jury.
The defendant, under existing law is not entitled to an award of
attorney's fees, therefore, should he secure return of his collection,
an individual who has already spent thousands of dollars establish-
ing his innocence of the criminal charges is required to spend
thousands more to civilly prove his innocence of the same acts,
without hope of securing any redress. This of course, has given the
enforcing agency enormous bargaining power in refusing to return
confiscated firearms. Evidence received by the Subcommittee related the
confiscation of a shotgun valued at $7,000. Even the Bureau's own
valuations indicate that the value of firearms confiscated by their
agents is over twice the value which the Bureau has claimed is
typical of "street guns" used in crime. In recent months, the aver-
age value has increased rather than decreased, indicating that the
reforms announced by the Bureau have not in fact redirected their
agents away from collector's items and toward guns used in crime.
The Subcommittee on the Constitution has also obtained evi-
dence of a variety of other misdirected conduct by agents and
supervisors of the Bureau. In several cases, the Bureau has sought
conviction for supposed technical violations based upon policies and
interpretations of law which the Bureau had not published in the
Federal Register, as required by 5 U.S.C. Sec 552. For instance, begin-
ning in 1975, Bureau officials apparently reached a judgment that
a dealer who sells to a legitimate purchaser may nonetheless be
subject to prosecution or license revocation if he knows that that
individual intends to transfer the firearm to a nonresident or other
unqualified purchaser. This position was never published in the
Federal Register and is indeed contrary to indications which
Bureau officials had given Congress, that such sales were not in
violation of existing law. Moreover, BATF had informed dealers
that an adult purchaser could legally buy for a minor, barred by
his age from purchasing a gun on his own. BATF made no effort to
suggest that this was applicable only where the barrier was one of
age. Rather than informing the dealers of this distinction, Bureau
agents set out to produce mass arrests upon these "straw man"
sale charges, sending out undercover agents to entice dealers into
transfers of this type. The first major use of these charges, in
South Carolina in 1975, led to 37 dealers being driven from busi-
ness, many convicted on felony charges. When one of the judges
informed Bureau officials that he felt dealers had not been fairly
treated and given information of the policies they were expected to
follow, and refused to permit further prosecutions until they were
informed, Bureau officials were careful to inform only the dealers
in that one state and even then complained in internal memoranda
that this was interfering with the creation of the cases. When
BATF was later requested to place a warning to dealers on the
front of the Form 4473, which each dealer executes when a sale is
made, it instead chose to place the warning in fine print upon the
back of the form, thus further concealing it from the dealer's sight.
The Constitution Subcommittee also received evidence that the
Bureau has formulated a requirement, of which dealers were not
informed that requires a dealer to keep official records of sales
even from his private collection. BATF has gone farther than
merely failing to publish this requirement. At one point, even as it
was prosecuting a dealer on the charge (admitting that he had no
criminal intent), the Director of the Bureau wrote Senator S. I.
Hayakawa to indicate that there was no such legal requirement
and it was completely lawful for a dealer to sell from his collection
without recording it. Since that date, the Director of the Bureau
has stated that that is not the Bureau's position and that such
sales are completely illegal; after making that statement, however,
he was quoted in an interview for a magazine read primarily by
licensed firearms dealers as stating that such sales were in fact
legal and permitted by the Bureau. In these and similar areas, the
Bureau has violated not only the dictates of common sense, but of 5
U.S.C. Sec 552, which was intended to prevent "secret lawmaking" by
administrative bodies.
These practices, amply documented in hearings before this Sub-
committee, leave little doubt that the Bureau has disregarded
rights guaranteed by the constitution and laws of the United
States.
It has trampled upon the second amendment by chilling exercise
of the right to keep and bear arms by law-abiding citizens.
It has offended the fourth amendment by unreasonably search-
ing and seizing private property.
It has ignored the Fifth Amendment by taking private property
without just compensation and by entrapping honest citizens with-
out regard for their right to due process of law.
The rebuttal presented to the Subcommittee by the Bureau was
utterly unconvincing. Richard Davis, speaking on behalf of the
Treasury Department, asserted vaguely that the Bureau's priorities
were aimed at prosecuting willful violators, particularly felons ille-
gally in possession, and at confiscating only guns actually likely to
be used in crime. He also asserted that the Bureau has recently
made great strides toward achieving these priorities. No documen-
tation was offered for either of these assertions. In hearings before
BATF's Appropriations Subcommittee, however, expert evidence
was submitted establishing that approximately 75 percent of BATF
gun prosecutions were aimed at ordinary citizens who had neither
criminal intent nor knowledge, but were enticed by agents into
unknowning technical violations. (In one case, in fact, the individual
was being prosecuted for an act which the Bureau's acting director
had stated was perfectly lawful.) In those hearings, moreover,
BATF conceded that in fact (1) only 9.8 percent of their firearm
arrests were brought on felons in illicit possession charges; (2) the
average value of guns seized was $116, whereas BATF had claimed
that "crime guns" were priced at less than half that figure; (3) in
the months following the announcement of their new "priorities",
the percentage of gun prosecutions aimed at felons had in fact
fallen by a third, and the value of confiscated guns had risen. All
this indicates that the Bureau's vague claims, both of focus upon
gun-using criminals and of recent reforms, are empty words.
In light of this evidence, reform of federal firearm laws is neces-
sary to protect the most vital rights of American citizens. Such
legislation is embodied in S. 1030. That legislation would require
proof of a willful violation as an element of a federal gun prosecu-
tion, forcing enforcing agencies to ignore the easier technical cases
and aim solely at the intentional breaches. It would restrict confis-
cation of firearms to those actually used in an offense, and require
their return should the owner be acquitted of the charges. By
providing for award of attorney's fees in confiscation cases, or in
other cases if the judge finds charges were brought without just
basis or from improper motives, this proposal would be largely self-
enforcing. S. 1030 would enhance vital protection of constitutional
and civil liberties of those Americans who choose to exercise their
Second Amendment right to keep and bear arms.
--
You spend the night
Like you were spending a dime
- Lyle Lovett