Powers Reserved to the People
The American Constitution
Founder Deliberations and Legal History Showing Meaning and Intent
[ Home ], [ Declarations and Resolves ], [ Other Sources ]

    Thomas Jefferson, "No freeman shall ever be debarred the use of arms."

Reference: proposal for Virginia Constitution, June 1776, 1 T. Jefferson Papers, 334 (C.J. Boyd, Ed.,1950)
(see also The Jefferson Cyclopedia at 51, Foley ed., reissued 1967)

    Thomas Jefferson in a letter to a nephew age 15, "A strong body makes the mind strong.  As to the species of exercises, I advise the gun.  While this gives a moderated exercise to the Body, it gives boldness, enterprise and independence to the mind.  Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind.  Let your gun therefore be the constant companion of your walks."

Reference: The Jefferson Cyclopedia, at 318, Foley ed., reissued 1967

    Thomas Jefferson, Another nephew tells us that Jefferson believed every boy should be given a gun at the age of ten, as Jefferson himself had been.

Reference: T. Jefferson Randolph, Notes on the Life of Thomas Jefferson Edgehill Randolph Collection, 1879

    George Mason, ".  .  .  to disarm the people (is) the best and most effective way to enslave them .  .  ."

Reference: 3 Elliot, Debates at 380.

    James Madison, "AMERICANS have the right and advantage of being armed, unlike the citizens of other countries whose governments are afraid to trust the people with arms."

Reference: The Federalist Papers, #46

    Zachariah Johnson, "THE people are not to be disarmed of their weapons. They are left in full possession of them."

Reference: 3 Elliot, Debates at 646.

    Resolved, that the following amendments ought to be proposed by Congress to the legislatures of the states, to become, if ratified by three fourths thereof, part of the constitution of the United States .  .  .  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 religiously scrupulous of bearing arms, shall be compelled to render military service in person  .  .  .

Reference: From the Madison Resolution for Amending the Constitution, June 8, 1789.

    The house went into a committee of the whole, on the subject of amendments.  The 3d clause of the 4th proposition in the report was taken into consideration, being as follows; "A well regulated militia, composed of the body of the people, being the best security of a free state; the right of the people to keep and bear arms shall not be infringed, but no person, religiously scrupulous, shall be compelled to bear arms.

    Mr. Gerry -- This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed.  Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself.  They can declare who are those religiously scrupulous, and prevent them from bearing arms.  What, sir, is the use of a militia?  It is to prevent the establishment of a standing army, the bane of liberty.  Now it must be evident, that under this provision, together with their other powers, congress could take such measures with respect to a militia, as make a standing army necessary.  Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.  This was actually done by Great Britain at the commencement of the late revolution.  They used every means in their power to prevent the establishment of an effective militia to the eastward.  The assembly of Massachusetts, seeing the rapid progress that administration were making, to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia, but they were always defeated by the influence of the crown.

Reference: Annals of Congress, House of Representatives, 1st Congress, 1st Session, 17 August 1789, page 778.

Amendment Proposed by States.

New Hampshire --

    TENTH, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be Quartered upon private Houses without the consent of the Owners.  .  .

    TWELFTH Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

Virginia --

    SEVENTEENTH, That the people have a 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 defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

    EIGHTEENTH, That no Soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

    NINETEENTH, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead .  .  .

New York --

    That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; that the Militia should not be subject to Martial Law, except in time of War Rebellion or Insurrection.  That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the Civil Power.  That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the civil Magistrate in such manner as the Laws may direct . . . that the Militia of any State shall not be compelled to serve without the limits of the State for a longer term than six weeks, without the Consent of the Legislature thereof.

The Militia Act, 1792

    The militia act stipulated that "each and every free able-bodied white male citizen . . . between the ages of 18 and 45 . . . shall severally and respectively be enrolled in the militia."

Reference: Act of May 8, 1792, 2d Cong., 1st Sess., ch. 33. or here

American Legal Opinion

    Justice Story wrote, "The militia is the natural defense of a free country against sudden foreign invasions, domestic usurpation of power by rulers.  It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expense with which they afford ambitious and unprincipled rulers to subvert the government, or trammel upon the rights of the people.  The rights of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary powers of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

Reference: Joseph Story, Commentaries on the Constitution of the United States, 3 vols. Boston, Mass.: Hilliard, Gray, 1833, 2: 607

    In United States v. Cruikshank, 92 U.S. 542 (1876), Chief Justice Waite delivered the Supreme Court's opinion which included the statements:

    The Cruikshank decision makes clear that the individual rights, upheld by the American Revolution, of the people to keep and bear arms, were not yielded by the people in adopting the U. S. Constitution.  That decision continued to limit the application of the Second amendment to restricting the power of Congress rather than state governments in addition to the national government.

Reference: United States v. Cruikshank, 92 U.S. 542 (1876).

    In Presser v. Illinois, 116 U.S. 252 (1886), the Supreme Court in one of the very few rulings rendered on the right to keep and bear arms, looked at the historical context in which forces consisting of citizen-soldiers had developed.  "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States; and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource from maintaining the public security, and disable the people from performing their duty to the general government."

    The Presser decision presents an interesting limit on the power of the States to restrict the right of the people to keep and bear arms.  The Court states the the national government has a call on the people as the reserve militia and the people may not be disarmed to the extent that the duty owed to the United States cannot be performed.  This duty and the resulting obligation of the people is independent of the Second Amendment.  In this decision we see an assertion of an obligation to be armed as a duty of citizenship. 

Reference: Presser v. Illinois, 116 U.S. 252 (1886).

    In U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999), Federal District Judge Cummings ruled the Second Amendment was an individual right.  While that ruling is not binding on the Circuit including Maryland, it is interesting because the body of the ruling lays out the supporting documentation and provides a useful starting place for study. Among Judge Cummings finding are:

Reference: U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999).

    At a Senate hearing, UCLA law Professor Eugene Volokh testified "The Second Amendment does indeed secure an individual right to keep and bear arms." Specific statements made by him include ---  

    What about the seemingly odd two-clause construction, which some commentators have called "unusual," "special," and "nearly unique"? It turns out that there's nothing odd about it at all. During the Framing Era, dozens of individual rights provisions in state constitutions were structured the same way, providing a justification clause explaining the right, and then an operative clause securing the right. The 1842 Rhode Island Constitution's Free Press Clause, for instance, reads
    The liberty of the press being essential to the security of freedom in a state,
    any person may publish his sentiments of any subject, being responsible for the
    abuse of that liberty  .  .  .  .
Just as with the Second Amendment, the second clause secures a right, while the first justifies it to the public.

Many early state Bills of Rights also protected the right to keep and bear arms; since these rights were protections against state governments, they surely must have protected individuals, not the states themselves. And many of the constitutions made this quite explicit. The 1790 Pennsylvania and the 1792 Kentucky Constitutions described the right as "the right of the citizens"; the 1796 Tennessee Constitution spoke of "the right of the freemen"; the 1817 Mississippi, 1818 Connecticut, 1819 Maine, and 1819 Alabama Constitution specifically referred to the right of "every citizen."

The 1776 Pennsylvania, 1777 Vermont, 1802 Ohio, 1816 Indiana, and 1820 Missouri Constitutions spoke of "the people['s] right to bear arms for the defence of themselves," referring to the people individually ("themselves") rather than collectively ("itself"). Throughout the 1800s, these unambiguously individual rights were seen as directly analogous to the Second Amendment. [ see the Contemporaneous Provisions ]

Reference: Senate Committee on the Judiciary on Whose Right to Keep and Bear Arms? " Testimony on the Second Amendment before the Subcommittee on the Constitution et al. of the U.S. Senate Judiciary Committee ," Professor Eugene Volokh, Sept. 23, 1998.

MILITARY SERVICE -- GOVERNOR -- VOLUNTEER TRAINING BY THE MARYLAND DEFENSE FORCE

    The Attorney General of Maryland has recounted the definition of the Militia in his opinion (81 Opinions of the Attorney General (1996), [Opinion No. 96-028, September 13, 1996]). The relevant paragraphs read:

The Maryland Constitution vests in the Governor authority as "Commander in Chief of the land and naval forces of the State." Article II, §8. The Governor "may call out the militia to repel invasions, suppress insurrections, and enforce the execution of the Laws." Id.

The Constitution also vests in the General Assembly the duty to "make ... such provision for organizing, equipping and disciplining the Militia, as the exigency may require, and pass such laws to promote Volunteer Militia organizations as may afford them effectual encouragement." Article IX, §1. The General Assembly carried out this duty through enactment of the Militia Law, Article 65. The Militia Law would generally apply to the Governor’s exercise of his authority over the militia.

Article 65, §5 provides for the militia's organization by dividing it into two classes, the organized militia and the unorganized militia. The organized militia consists of the Maryland National Guard ("MDNG"), the MDDF, and the reserve militia (Minute Men). Subject to certain exceptions, the "unorganized" militia consists of "all able-bodied citizens of the State," whom the Governor may order into State service if troop strength in the organized militia is insufficient to deal with a crisis. See Article 65, §§1, 2, and 8.

Updated by Phil Lee on 4/16/07.  Contact pflee at wdn dot com (sorry for being obscure, but web mail address scavenge programs make this practice necessary).