Preventing Government from Usurping
the People's Right to Arms

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Bill of Rights Proceedings

    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.

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 p607

    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. 

    As the object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, the construction given to those principles by the English courts is cogent evidence of what they were designed to secure and of the limitations that should be put upon them.  This is but another application of the familiar rule that where one State adopts the laws of another, it is also presumed to adopt the known and settled construction of those laws by the courts of the State from which they are taken.  Cathcart v. Robinson, 5 Pet. 264, 280; McDonald v. Hovey, 110 U.S. 619.

Reference: BROWN v. WALKER, 161 U.S. 591 (1896) or here.  This opinion of the Supreme Court recognizes the first eight amendments (including the Second Amendment) as based on principles of natural justice and on English jurisprudence at the time of their adoption.

    The United States Supreme Court discussed the meaning of the militia in a 1939 decision which was based on traditional views expressed in state court decisions.  "The significance attributed to the term Militia appears from the debates in the Constitutional Convention, the history and legislation of Colonies and States, and the writings of approved commentators.  These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.  "A body of citizens enrolled for military discipline."  And further, that ordinarily when called for service these men were expected bearing arms supplied by themselves and of the kind in common use at the time.  .  .  .  In all the colonies, as in England, the militia system was based on the principle of the assize of arms.  This implied the general obligation of all adult males inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defense.  The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former."

Reference: United States v. Miller, 307 U.S. 174, 179-180. Similar state court opinions include, Aymette v. State, 21 Tenn. [2 Humph.], and Andrews v. State, 50 Tenn. [3 Heisk.] 165, 8 Am. Rep. 8 (1871).  Miller was based heavily on the language, arguments and philosophy expressed in the two state cases.

    An article concluded that the Second Amendment to the Constitution was adopted "as a declaration that the Federal Government can never fully nationalize all the military forces of this nation" because the masses of men with their own guns constitute "an essentially civilian-manned and oriented set of military forces" who can "inveigh against federal professionalization of the state militia."

Reference: Ronald B. Levine and David B. Saxe, ","The Second Amendment: The Right to Bear Arms, Houston Law Review, 7 [1969]

In testimony to the U. S. Senate, Professor Joyce Lee Malcolm of Bentley College stated:

    Americans inherited an individual right to be armed, but it is possible that they chose to narrow, or waive, that right in the Bill of Rights.  Examination of the drafting of the Second Amendment, however, makes Congress's intention to protect an individual right apparent.  In keeping with colonial practice English restrictions based on religion were swept aside and no provision was included for what was "suitable" to a person's "condition" or "allowed by law."  The American amendment, however, was prefaced by the assertion that "a well-regulated militia" is "necessary to the security of a free State."  Was it meant, therefore, only to ensure the right of militia members to be armed?  If so it is hard to understand why a House committee removed the stipulation that the militia be described as "well-armed" or why senators rejected a proposal to add to the words "to keep and bear arms" the phrase "for their common defence."  Although militia service was expected of men of a certain age, and a militia was regarded as safer for a republic than a professional army, senators did not want to limit the possession of weapons to "common defence."  English drafters had emphatically rejected the same phrase.  It is the right of "the people" to be armed Congress sought to protect.  It has also been argued that the amendment was meant to return some power over the militia to the states.  If so it signally fails to do that. What does it do? It states that a militia is "necessary to the security of a free State."  And it proclaims that the right of the people to keep and bear arms shall not be infringed.

    As William Rawle, George Washington's candidate for the nation's first attorney general saw it, the protection was a blanket one.  "The prohibition," he wrote, "is general."

    No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people.  Such a flagitious attempt could only be made under some general pretence by a state legislature.  But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

    There is overwhelming evidence that the Second Amendment was intended to protect an individual right.  It is time to concede that truth.

Reference: Hearing before the Subcommittee on the Constitution, Federalism, and Property Rights Senate Committee on the Judiciary on Whose Right to Keep and Bear Arms? The Second Amendment as a Source of Individual Rights, Sept. 23, 1998 (U.S. Docs. Y 4.J 89/2:S.HRG.105-890)



Maryland Governor Herbert L. O'Conor calls up the Maryland Militia, March 10, 1942:

I propose to meet this need by the organization in every part of the State of a Reserve Militia.... It offers the opportunity for every able-bodied man to assist in protecting his home and his community against enemy activities. The militia will be organized under our State Law, and the men who enlist at this time of our grave emergency will be known as the "Maryland Minute Men. " The mission of the Maryland Minute Men is to furnish immediately, local protection against parachute troops, saboteurs, or organized raiding parties. ... No prescribed complete uniform will be required. Distinctive arm bands and caps or other items may be furnished by the State, the County, or by the men themselves. For the present the hard-pressed Ordinance Department of the United States Army cannot be expected to furnish sufficient arms, ammunition, or equipment. Hence, the volunteers, for the most part, will be expected to furnish their own weapons. For this reason, gunners (of whom there are 60, 000 licensed in Maryland), members of Rod and Gun Clubs, of Trap Shooting and similar organizations, will be expected to constitute a part of this new military organization.

Reference: Transcript of the complete address by the Governor: 616 State Papers and Addresses, MARYLAND MINUTE MEN, RADIO STATION WFBR AND MARYLAND COVERAGE NETWORK, March 10, 1942, Baltimore

 

Last 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).